Sanctions and National Security

Author: Nyman Gibson Miralis

Subject: Sanctions

Keywords: national and international security, restriction, prohibition, United Nations Security Council (UNSC) sanctions, Australian autonomous sanctions regimes, sanctions offences

 

What is a Sanction?

A Sanction is generally defined as a measure that does not involve the use of armed force to influence the conduct of a foreign entity. An example of sanction measures includes the imposition of restrictions or prohibitions on exporting goods to a particular country.

Sanctions are usually implemented in situations of ‘international concern’ such as:

  • the grave repression of a population’s human rights or democratic freedoms by a government
  • the proliferation of weapons of mass destruction or their means of delivery
  • internal or international armed conflict

Thus, the objects of a sanctions regime are to limit the adverse consequences of these situations of international concern, modify the behaviour of those responsible, and also penalise those responsible.

 

How are sanctions implemented in Australia?

Australian sanctions law encompasses two types of sanctions regime:

 

United Nations Security Council (UNSC) sanctions

Under article 25 of the Charter of the United Nations, Australia is required to carry out decisions made by the UNSC including those relating to the imposition of sanctions.

Each UNSC sanctions regime becomes Australian law through the Charter of the United Nations Act 1945 (Cth) (‘UN Act’) and its set of regulations. For example, North Korea has its own set of regulations for decisions made by the UNSC and is separate to Iraq’s regulations.

 

Australian autonomous sanctions regimes

Australia also implements an autonomous sanctions regime independent of UNSC decisions. Autonomous sanctions are imposed as a response to a foreign actors’ conduct that is contrary to Australian foreign policy.

Notably, UNSC sanctions regimes may overlap with any autonomous sanctions regime enforced by the Australian Government.

The Government is able to implement its own sanctions under the Autonomous Sanctions Act 2011 (Cth) (‘Autonomous Act’) and the Australian Autonomous Sanctions Regulations 2011 (Cth).

 

Sanctions Offences

Australian sanction laws apply to the activities conducted by Australian citizens and Australian-registered bodies corporate overseas.

 

Contravening a sanctions measure or a sanctions permit

The UN and Autonomous Acts establish identical criminal offences with respect to the contravention of a sanctions measure or condition of a sanctions permit.

Under this offence individuals may be liable for:

  • Up to 10 years imprisonment; and/or
  • a fine the greater of:
    • 3 times the value of a transaction(s);
    • 2500 penalty units ($525,000 as of 1 July 2017).

Body corporates may be punished by a fine the greater of:

(i)  3 times the value of the transaction(s);

(ii)  10,000 penalty units ($2.1 million as of 1 July 2017)

Additionally, these offences are of strict liability for bodies corporate. This means it is not necessary for the prosecuting authority to prove any fault element (i.e. intent, knowledge, recklessness or negligence) for a body corporate to be found guilty.

 

Giving false or misleading information

There are also serious criminal offences for giving false or misleading information in connection with a sanction law under the UN and Autonomous Acts.

A person may be liable for up to 10 years imprisonment and/or a fine of 2500 penalty units ($525,000 as of 1 July 2017).

 

Recent case study: Charges for alleged breach of North Korean sanctions

In December 2017,  the Australian Federal Police (AFP) arrested 59-year-old, Chan Han Choi, in Eastwood NSW, for allegedly acting as an economic agent for the Democratic People’s Republic of Korea Government (North Korea) in Australia. Specifically, it is alleged that Choi was involved in:

  • brokering the sale of missiles, missile components and missile expertise from North Korea to other international entities; and
  • attempting to transfer coal from North Korea to non-government entities in Indonesia and Vietnam

Consequently, the AFP believes that Choi was generating or at least attempting to generate income for the North Korean Government. If proven, such conduct would amount to the provision of ‘sanctioned services’ in contravention of:

  • section 27(1) of the UN Act with reg 11(2) Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Regulations 2008 (Cth); and
  • section 16(1) of the Autonomous Act 2011 with regulation 13(1) Autonomous Sanctions Regulations 2011 (Cth).

Choi is also the first person in Australia to be charged with an offence under section 11 of the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth) (‘WMD’), which prohibits the provision of services for a WMD program.

Choi’s matter is now before the Local Court of NSW.

 

Conclusion

The increasing threat of hostile state and non-state actors attempting to cause harm to Australia’s security has highlighted the importance of sanctions regimes in ultimately preventing such conduct without the need for armed retaliation.

 

Nyman Gibson Miralis advises and represents individuals and corporations dealing with international and national security investigations and probes, interviews, administrative decisions and related court proceedings. If you require assistance, contact one of our expert criminal defence lawyers