Footnotes

Chapter 1 - Introduction

[1]        Senate Standing Committee for the Scrutiny of Bills, Tenth Report of 2010, 24 November 2010, pp. 388-400.

[2]        Senate Selection of Bills Committee, Report No 11 of 2010, 30 September 2010, paragraph 2(c) and Appendix 3.

[3]        Explanatory Memorandum, p. 1.

[4]        Explanatory Memorandum, p. 1.

[5]        Explanatory Memorandum, p. 1.

[6]        Explanatory Memorandum, p. 2.

[7]        Explanatory Memorandum, p. 2.

Chapter 2 - Background

[1]        Reed M. Wood, 'The Hand upon the Throat of the Nation: Economic Sanctions and State Repression 1976–2001', International Studies Quarterly, (2008), 52, p. 490.

[2]        DFAT, Submission 3, p. 1.

[3]        DFAT, Submission 3, p. 1.

[4]        DFAT, Australia and the United Nations, What measures are imposed as UN Sanctions? http://www.dfat.gov.au/un/unsc_sanctions/unsc_sanctions_measures.html (accessed 2 June 2010).

[5]        DFAT, Australia and the United Nations, What measures are imposed as UN Sanctions? http://www.dfat.gov.au/un/unsc_sanctions/unsc_sanctions_measures.html (accessed 2 June 2010).

[6]        DFAT, Australia and the United Nations, What measures are imposed as UN Sanctions? http://www.dfat.gov.au/un/unsc_sanctions/unsc_sanctions_measures.html (accessed 2 June 2010).

[7]        DFAT, Australia and the United Nations, What measures are imposed as UN Sanctions? http://www.dfat.gov.au/un/unsc_sanctions/unsc_sanctions_measures.html (accessed 2 June 2010).

[8]        Margaret Doxey, 'Reflections on the sanctions decade and beyond', International Journal, Spring 2009, p. 543.

[9]        DFAT, Australia and the United Nations, How are UN sanctions implemented in Australia?, http://www.dfat.gov.au/un/unsc_sanctions/unsc_sanctions_how.html (accessed 27 July 2010).

[10]      UN Charter Act, ss 27, 28.

[11]      Department of Foreign Affairs and Trade, Submission 2, p. 2. See further, Margaret Doxey, 'Reflections on the sanctions decade and beyond', International Journal, Spring 2009, p. 541.

[12]      DFAT, Australia and the United Nations, What measures are imposed as autonomous sanctions? http://www.dfat.gov.au/un/unsc_sanctions/unsc_sanctions_measures.html (accessed 2 June 2010).

[13]      Margaret Doxey, 'Reflections on the sanctions decade and beyond', International Journal, Spring 2009, p. 548.

[14]      See Explanatory Memorandum, p. 1. See also, Margaret Doxey, 'Reflections on the sanctions decade and beyond', International Journal, Spring 2009, p. 547.

[15]      The Hon Kevin Rudd MP, Minister for Foreign Affairs, Second reading speech, House Hansard, 30 September 2010, p. 259.

[16]      DFAT, Submission 3, p. 1.

[17]      These countries are: Burma, Democratic People's Republic of Korea (North Korea), Fiji, the former Federal Republic of Yugoslavia, Iran, Libya and Zimbabwe. See further DFAT, Australia and the United Nations, What measures are imposed as autonomous sanctions? http://www.dfat.gov.au/un/unsc_sanctions/unsc_sanctions_measures.html (accessed 2 March 2011).

[18]      Reserve Bank of Australia, Submission 1; Department of Foreign Affairs and Trade, Submission 3; Department of Defence, Submission 4; Financial Services Council, Submission 5.

[19]      Reserve Bank of Australia, Submission 1, p. 1.

[20]      Under the Customs (Prohibited Exports) Regulations 1958 and the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995.

[21]      Department of Defence, Submission 4, p. 1.

[22]      Reserve Bank of Australia, Submission 1; Department of Foreign Affairs and Trade, Submission 3; Department of Defence, Submission 4; Financial Services Council, Submission 5.

Chapter 3 - Provisions of the bill

[1]        Clause 3.

[2]        Clause 4.

[3]        Part 2.

[4]        Part 3.

[5]        Part 4.

[6]        Senate Standing Committee for the Scrutiny of Bills, Tenth Report of 2010, 24 November 2010.

[7]        Senate Selection of Bills Committee, Report No 11 of 2010, 30 September 2010, paragraph 2(c) and Appendix 3.

[8]        Clause 10.

[9]        Clauses 12 and 13.

[10]      Subclause 10(3).

[11]      Subclause 14(5).

[12]      Senate Standing Committee for the Scrutiny of Bills, Tenth Report of 2010 (24 November 2010), pp. 389, 390, 392, 393, 394, 396, 398, 399.

[13]      Senate Standing Committee on Legal and Constitutional Affairs, Report on the International Trade Integrity Bill 2007, (November 2007), [3.7].

[14]      Explanatory Memorandum, Autonomous Sanctions Bill 2010 (Cth) (EM), p 1; Department of Foreign Affairs and Trade, Submission 3, p.1.

[15]      See for example, Security Council S/RES/1373 (2001), 28 September 2001 (prevention and suppression of the financing of terrorist acts), implemented in Australia under Part 4 of the UN Charter Act.

[16]      See for example, Security Council Committee established pursuant to Resolution 1267 (1999); Security Council Committee established pursuant to 1636 (2005); and Security Council Committee established pursuant to Resolution 1718 (2006).

[17]      Security Council Committee established pursuant to Resolution 1267 (1999) concerning Al‑Qaida and the Taliban and associated individuals and entities, Guidelines of the Committee for the Conduct of its Work..

[18]      United Nations Security Council, Annex to letter dated 12 December 2007 from the Permanent Representative of Greece to the United Nations addressed to the President of the Security Council, 'Enhancing the Implementation of the United Nations Security Council', A Symposium, 30 April 2007, S/2007/734, p. 2.

[19]      For a summary of measures see, for example, Thomas J. Biersteker and Sue E. Eckert, Strengthening Targeted Sanctions Through Fair and Clear Procedures,  White Paper prepared by the Watson Institute Targeted Sanctions Project, Brown University, 30 March 2006.

[20]      United Nations General Assembly, A/RES/60/1, 24 October 2005, paragraphs 106–109.

[21]      It resolved to adopt a de-listing procedure and directed its various sanctions committees to revise their guidelines accordingly. United Nations Security Council, S/RES/1730 (2006), 19 December 2006. See also Statement by the President of the Security Council, S/PRST/2006/28, 22 June 2006.

[22]      See for example, Security Council, S/RES/1822 (2008), 30 June 2008, paragraphs, 21, 22, 25, 26, 28, 29 and S/RES/1904 (2009), paragraphs 14, 19, 20, 21, 34, 35.

[23]      Security Council, RES/1904 (2009), 17 December 2009, paragraphs 20-21.

[24]      European Union, Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) in the Framework of the EU Common Foreign and Security Policy, 2 December 2005, Doc. 15114/05 PESC 1084 Fin 475.

[25]      ibid.

[26]      Gary Quinlan, Ambassador and Permanent Representative of Australia to the United Nations Security Council, Statement to the United Nations Security Council Regarding the Promotion and Strengthening of the Rule of Law in the Maintenance of International Peace and Security,  S/PV6347 (Resumption 1), 29 June 2010, p. 8.

[27]      Subclauses 10(1)(a)-(f).

[28]      Subclause 10(2).

[29]      Queensland Law Society, Submission 2A, p. 1.

[30]      [2010] FCAFC 69 (11 June 2010).

[31]      ibid, [9]-[15] (Spender J), [125]-[128] (McKerracher J); [108] (Lander J, in dissent).

[32]      ibid, [18]-[45] (Lander J).

[33]      ibid, [16] (Spender J), [122] (McKerracher J), [114]-[115] (Lander J).

[34]      Queensland Law Society, Submission 2A, p 2.

[35]      ibid.

[36]      Agreement between the Australian Labor Party (The Hon Julia Gillard MP and the Hon Wayne Swan MP) and the Independent Members (Mr Tony Windsor MP and Mr Rob Oakeshott MP), 7 September 2010, Clause 2.1(a).

[37]      See for example, Council of the European Union, Basic Principles on the Use of Restrictive Measures (Sanctions), 7 June 2004, Doc. 10198/1/04 PESC 450 REV1; Council of the European Union, Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) in the Framework of the EU Common Foreign and Security Policy, 2 December 2005, Doc. 15114/05 PESC 1084 Fin 475.

[38]      Senate Standing Committee for the Scrutiny of Bills, Tenth Report of 2010 (24 November 2010), p. 388.

[39]      ibid, p. 389.

[40]      Explanatory Memorandum, International Trade Integrity Bill 2007, p. 4. See further, Senate Standing Committee for the Scrutiny of Bills, Alert Digest No 7 of 2007 (20 June 2007), p 7.

[41]      Senate Standing Committee for the Scrutiny of Bills, Tenth Report of 2010 (24 November 2010) pp. 390-392.

[42]      ibid.

[43]      DFAT, Submission 3, p. 3.

[44]      Senate Standing Committee for the Scrutiny of Bills, Tenth Report of 2010 (24 November 2010), pp. 394-395.

[45]      The Group of Eight Ltd, Submission 6, p. 1.

[46]      See, for example, Federal Court of Australia, Practice Note CM 14 (usual undertaking as to damages).

[47]      Senate Standing Committee for the Scrutiny of Bills, Tenth Report of 2010 (24 November 2010), p 393.

[48]      Clause 14.

[49]      Clause 15.

[50]      Subclause 14(1) and Clause 15.

[51]      Subclause 6(1) provides that a Minister may, by legislative instrument, specify a provision of a law of the Commonwealth as a sanction law.

[52]      Subclause 3(b).

[53]      Subclauses 16(1)-16(10).

[54]      Senate Standing Committee for the Scrutiny of Bills, Tenth Report of 2010, 24 November 2010, p. 394 (the Minister's advice referred to s 27 of the UN Charter Act).

[55]      Criminal Code s 5.6(1).

[56]      Criminal Code s 5.6(2). Note that under s 5.4(4), recklessness can be established by proving intention or knowledge, or recklessness as defined in ss 5.4(1)-(3).

[57]      The Criminal Code provides that the body corporate bears the legal burden of establishing the defence on the balance of probabilities. Once this is done, the prosecution must refute the defence beyond reasonable doubt: Criminal Code ss 13.4 and 13.5.

[58]      Criminal Code s 9.2.

[59]      Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, issued by authority of the Minister for Home Affairs (December 2007), [4.5].

[60]      The Hon Terrence Cole AO RFD QC, Report of the Inquiry into Certain Australian Companies in Relation to the UN Oil-for-Food Programme, Volume 1 (November 2006), Recommendation 2. This recommendation was accepted by government (in respect of bodies corporate but not individuals) and considered appropriate for broader application to all sanctions regimes: Australian Government, Response to the Report of the Inquiry into Certain Australian Companies in Relation to the UN Oil-for-Food Programme (2007).

[61]      Senate Standing Committee for the Scrutiny of Bills, Tenth Report of 2010, 24 November 2010, pp. 396-397.

[62]      ibid, p. 394.

[63]      See further, Department of Defence, Submission 4, p. 2 for a summary of Defence involvement in industry engagement on sanctions, through the Defence Export Control Office.

[64]      DFAT, Submission 3, p. 5.

[65]      Queensland Law Society, Submission 2, p. 1.

[66]      ibid, p. 2.

[67]      Namely, a licence, permission, consent or approval.

[68]      Criminal Code, s 5.4.

[69]      The defences of mistake or ignorance of fact, and subordinate legislation in ss 9.1 and 9.4 of the Criminal Code may also be available to individuals in such circumstances.

[70]      Australian Government, Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (December 2007), pp. 17-18.

[71]      Queensland Law Society, Submission 2¸p. 2.

[72]      ibid.

[73]      ibid.

[74]      The Group of Eight Universities Ltd raised a similar point, submitting that the government should implement a process to 'flag the individuals considered to pose a risk and communicate this information to DIAC to ensure that those students are not issued a visa': Submission 6, p. 1.

[75]      Financial Services Council Submission 5, pp. 2-4.

[76]      Queensland Law Society, Submission 2, pp. 3-4.

[77]      Queensland Law Society, Submission 2, p. 3.

[78]      Australian Government Department of the Prime Minister and Cabinet, Legislation Handbook (2000), paragraph [6.38].

[79]      Clause 19 invests the CEO of a designated Commonwealth entity with power to serve on a person a notice to provide certain information or documents, for the purpose of assessing compliance with a sanction law.

[80]      Clause 17 creates offences for the provision of false or misleading information in connection with the administration of a sanction law. Clause 21 creates an offence for non-compliance with a notice issued under Clause 19.

[81]      Senate Standing Committee for the Scrutiny of Bills, Tenth Report of 2010, 24 November 2010, p. 397.

[82]      ibid, p. 398.

[83]      Queensland Law Society, Submission 2, pp. 4-5.

[84]      The Hon Terrence Cole AO RFD QC, Report of the Inquiry into Certain Australian Companies in Relation to the UN Oil-for-Food Programme, Volume 1 (November 2006), p. 80; recommendation 3.

[85]      Senate Standing Committee for the Scrutiny of Bills, Tenth Report of 2010, 24 November 2010, p. 398.

[86] Senate Standing Committee on Legal and Constitutional Affairs, Report on the International Trade Integrity Bill 2007 (August 2007), paragraph [3.13], citing the submission of Transparency International Australia.

[87] Juli Tomaras, Parliamentary Library, Parliament of Australia, Bills Digest: International Trade Integrity Bill 2007, No 12 2007-08 (3 August 2007), pp 21-22.

[88] See, eg, Public Service Regulations 1999 (Cth) reg 2.1(5). For a comprehensive survey of similar provisions in secrecy laws, see Australian Law Reform Commission, Secrecy Laws and Open Government in Australia, ALRC Report 112 (2010), paragraphs [3.73]-[3.89].

[89]      Explanatory Memorandum, International Trade Integrity Bill 2007, pp. 4-7.

[90]      Senate Standing Committee for the Scrutiny of Bills, Alert Digest No 7 of 2007 (20 June 2007) pp. 7-8; Senate Standing Committee for the Scrutiny of Bills, Eighth Report of 2007 (8 August 2007) pp. 294-298.

[91]      See recommendation 2 of this report.

[92]      See recommendation 3 of this report.

[93]      See recommendation 5 of this report.

[94]      See recommendation 9 of this report.

[95]      Australian Government Department of the Prime Minister and Cabinet, Legislation Handbook (2000), paragraph [8.19]. See further, Senate Standing Committee for the Scrutiny of Bills, Third Report of 2004: The Quality of Explanatory Memoranda Accompanying Bills, 24 March 2004, Chapters 3 and 4.

[96]      Senate Foreign Affairs, Defence and Trade Legislation Committee, Export Finance and Insurance Corporation Amendment Bill 2006, September 2006, paragraphs [3.4]-[3.11], Recommendation 1.

[97]      The Hon Julie Bishop MP, Deputy Leader of the Opposition, Shadow Minister for Foreign Affairs, House of Representatives Hansard, 26 October 2010, p. 1665. See further, Senate Selection of Bills Committee, Report No 11 of 2010, 30 September 2010, paragraph 2(c) and Appendix 3.

[98]      Clauses 20-23 provide for, respectively: the provision of information to the Commonwealth on oath; criminal offences for failure to comply with a request for information; abrogation of the privilege against self-incrimination; and the copying and return of documents provided in accordance with a request for documents.

[99]      Clause 18.

[100]    Subclause 24(1).

[101]    Subclauses 24(2)(a)-(f), 24(3), 24(4).

[102]    The IPPs are contained in section 14 of the Privacy Act 1988 and impose requirements on Commonwealth agencies in relation to the collection, solicitation, storage, access, alteration, use and disclosure of personal information. Personal information is defined in section 6 as information or an opinion about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

[103]    DFAT, Submission 3, pp. 6-7.

[104]    IPP 11, paragraphs (1)(d) and (3).

[105]    DFAT, Submission 3, pp. 6-7.

[106]    ibid, p. 6. See further, DFAT, Submission 3A.

[107]    Australian Government Department of the Prime Minister and Cabinet, Legislation Handbook (2000), paragraph [4.7(h)(vi)].

[108]    As noted by Gary Quinlan, Ambassador and Permanent Representative of Australia to the United Nations Security Council in his Statement to the United Nations Security Council Regarding the Promotion and Strengthening of the Rule of Law in the Maintenance of International Peace and Security,  S/PV6347 (Resumption 1), 29 June 2010, p. 8.