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Trading with integrity Sanctions issues for Australian universities Antony Horrocks Assistant Director Sanctions Section Department of Foreign Affairs.

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Presentation on theme: "Trading with integrity Sanctions issues for Australian universities Antony Horrocks Assistant Director Sanctions Section Department of Foreign Affairs."— Presentation transcript:

1 Trading with integrity Sanctions issues for Australian universities Antony Horrocks Assistant Director Sanctions Section Department of Foreign Affairs and Trade

2 What are sanctions? ‘Measures not involving the use of armed force’, including ‘complete or partial interruption of economic relations.’ (Charter of the United Nations, Article 41.) ‘Measures not involving the use of armed force’ imposed ‘in situations of international concern’, including ‘the grave repression of the human rights or democratic freedoms of a population by a government, or the proliferation of weapons of mass destruction (WMD) or their means of delivery, or internal or international armed conflict.’ (Autonomous Sanctions Bill 2010, explanatory memorandum.)

3 What are the aims of sanctions? ‘To limit the adverse consequences of the situation of international concern (for example, by denying access to military or paramilitary goods, or to goods, technologies or funding that are enabling the pursuit of programs of proliferation concern). To seek to influence those responsible for giving rise to the situation of international concern to modify their behaviour to remove the concern (by motivating them to adopt different policies). To penalise those responsible (for example, by denying access to international travel or to the international financial system).’ (Autonomous Sanctions Bill 2010, explanatory memorandum.)

4 The two types of sanctions regimes United Nations Security Council (UNSC) sanctions regimes Imposed by the UNSC in response to a threat to the peace, breach of the peace, or act of aggression. (Charter of the United Nations, Article 39.) Implemented by all United Nations Member States, including Australia, as a matter of international law. (Charter of the United Nations, Article 25.) Autonomous sanctions regimes Imposed and implemented by a country as a matter of foreign policy. May supplement UNSC sanctions, or be separate from them.

5 Current sanctions regimes UNSC sanctions Al Qaida CAR Cote d’Ivoire Counter-terrorism DRC Eritrea Guinea-Bissau Iraq Lebanon Liberia Somalia Sudan The Taliban Yemen Australian autonomous sanctions Burma Former Yugoslavia 1 Syria Ukraine Zimbabwe 1 Targeted against persons associated with the former Milosevic regime. Both DPRK Iran Libya

6 Australian sanction laws UNSC sanctions Primarily implemented under the Charter of the United Nations Act 1945 (CotUNA) and its regulations. There is a separate set of regulations for each UNSC sanctions regime. CotUNA is administered by DFAT. Australian autonomous sanctions Primarily implemented under the Autonomous Sanctions Act 2011 and the Autonomous Sanctions Regulations 2011. There is only one set of regulations which implements all Australian autonomous sanctions regimes. The Autonomous Sanctions Act 2011 is administered by DFAT.

7 Types of sanctions measures Different sanctions regimes impose different sanctions measures. CotUNA, the Autonomous Sanctions Act 2011 and their regulations use common terms to describe sanctions measures. Sanctions measures of particular relevance to universities include general prohibitions on providing a ‘sanctioned service’; and dealing with a ‘designated person or entity’. These measures may be relevant to enrolling students from sanctioned countries, and to collaboration between universities and academics.

8 ‘Sanctioned service’ The following sanctions regimes impose a general prohibition on providing a ‘sanctioned service’: Al Qaida (UNSC sanctions); Burma (Australian autonomous sanctions); DPRK (UNSC sanctions); Eritrea (UNSC sanctions); Iran (UNSC and Australian autonomous sanctions); Lebanon (UNSC sanctions); Liberia (UNSC sanctions); Libya (UNSC sanctions); Somalia (UNSC sanctions); Sudan (UNSC sanctions); Syria (Australian autonomous sanctions); the Taliban (UNSC sanctions); and Zimbabwe (Australian autonomous sanctions).

9 Iran: ‘Sanctioned service’ UNSC sanctions in relation to Iran Of particular relevance to universities, a ‘sanctioned service’ includes the provision to any person of technical assistance or training if it assists with the manufacture or use of ‘export sanctioned goods’ in Iran or on behalf of a person or entity in Iran. (Charter of the United Nations (Sanctions – Iran) Regulations 2008, regulation 8.) ‘Export sanctioned goods’ are goods mentioned in specified UNSC and International Atomic Energy Agency documents. In essence goods related to Iran’s nuclear and ballistic missile programs. (Charter of the United Nations (Sanctions – Iran) Regulations 2008, regulation 5.)

10 Iran: ‘Sanctioned service’ Australian autonomous sanctions in relation to Iran Of particular relevance to universities, a ‘sanctioned service’ includes the provision to any person of technical advice, assistance or training if it assists with, or is provided in relation to, the manufacture, maintenance or use of an ‘export sanctioned good’ for Iran. (Autonomous Sanctions Regulations 2011, regulation 5.)

11 Iran: ‘Sanctioned service’ ‘Export sanctioned goods’ include, but are not limited to ‘arms or related materiel’, which is defined broadly; goods related to chemical and biological weapons; specified goods related to the oil, gas and petrochemical industries; specified graphite, raw metals and semi-finished metals; and specified software for integrating industrial processes. (Autonomous Sanctions Regulations 2011, regulation 4. Autonomous Sanctions (Export Sanctioned Goods – Iran) Specification 2012. Autonomous Sanctions (Export Sanctioned Goods – Iran) Amendment Specification 2013.) Dual-use goods are included.

12 Iran: ‘Sanctioned service’ and enrolments DFAT asks three questions to determine whether the provision of training by an Australian university to an Iranian student would constitute a ‘sanctioned service’. Would the training relate to the manufacture or use of export sanctioned goods? Would the training increase Iran’s capacity to manufacture or use those export sanctioned goods? Would the training be provided to someone with a sufficient connection to Iran?

13 Iran: ‘Sanctioned service’ and enrolments Would the training relate to the manufacture or use of export sanctioned goods? DFAT may need to consult other Australian Government agencies to answer this question. There are three important limitations on the types of training in relation to which universities should consider consulting DFAT.

14 Iran: ‘Sanctioned service’ and enrolments Universities generally only need to consider consulting DFAT before providing training to an Iranian student applying for a research course. We generally consider the training that a university may provide to an Iranian student in a non-research course is –too remote from the manufacture or use of export sanctioned goods; or –insufficiently specialised to constitute ‘technical’ training.

15 Iran: ‘Sanctioned service’ and enrolments Universities do not need to consult DFAT before providing training relating to the manufacture or use of export sanctioned goods that constitutes ‘basic scientific research’. We consider training that constitutes ‘basic scientific research’ is insufficiently specialised to constitute ‘technical’ training. We apply the definition of ‘basic scientific research’ used in control lists issued by international arms control bodies –‘experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective’. The ‘training’ that may be subject to the exemption for ‘basic scientific research’ will depend on the particular export sanctioned goods. –We interpret ‘training’ broadly, taking into account the purpose or outcome of manufacturing or using those goods.

16 Iran: ‘Sanctioned service’ and enrolments Universities do not need to consult DFAT before providing training relating to the manufacture or use of export sanctioned goods that also relates to information ‘in the public domain’. We consider training that relates to information ‘in the public domain’ is insufficiently specialised to constitute ‘technical’ training. We apply the definition of information ‘in the public domain’ used in control lists issued by international arms control bodies –‘technology that has been made available without restrictions upon its further dissemination’, noting that ‘copyright restrictions do not remove technology from being in the public domain’. The ‘training’ that may be subject to the exemption for information ‘in the public domain’ will depend on the particular export sanctioned goods. –We interpret ‘training’ broadly, taking into account the purpose or outcome of manufacturing or using those goods.

17 Iran: ‘Sanctioned service’ and enrolments Would the training increase Iran’s capacity to manufacture or use those export sanctioned goods? In the sense of increasing Iran’s technical knowledge of how to manufacture or use those goods. Or in the sense of increasing the size or competence of Iran’s potential workforce to manufacture or use those goods. –‘More hands make light work.’ DFAT may need to consult other Australian Government agencies to answer this question.

18 Iran: ‘Sanctioned service’ and enrolments Would the training be provided to someone with a sufficient connection to Iran? DFAT may need to consult other Australian Government agencies to answer this question. The connection must be relevant to the possible manufacture or use of export sanctioned goods and cannot be merely formal. There is an important limitation on the types of students in relation to which universities should consider consulting DFAT.

19 Iran: ‘Sanctioned service’ and enrolments Universities generally only need to consider consulting DFAT before providing training to an Iranian citizen in Australia on a temporary visa. We generally consider that an Iranian citizen who is also an Australian citizen or permanent resident has an insufficient connection to Iran –unless he or she has some additional ongoing connection with Iran beyond his or her Iranian citizenship.

20 Iran: ‘Sanctioned service’ and enrolments Sanctions and visa issues in relation to Iranian students are separate. Sanctions issues focus on whether a university can provide training. Visa issues focus on whether an Iranian citizen can enter Australia. DIBP cannot process an application for a postgraduate research subclass 574 visa until it has received a confirmation of enrolment from an Australian university. Universities must consider sanctions issues before confirming the enrolment of an Iranian student. A confirmation of enrolment constitutes an undertaking to provide training to a student. A university must be satisfied that the training would not constitute a ‘sanctioned service’ before making that undertaking.

21 Dealing with ‘designated persons’ All UNSC and Australian autonomous sanctions regimes impose a general prohibition on dealing with ‘designated persons or entities’, except for those in relation to Burma (Australian autonomous sanctions); Guinea-Bissau (UNSC sanctions); and Iraq (UNSC sanctions).

22 Iran: Dealing with ‘designated persons’ UNSC and Australian autonomous sanctions in relation to Iran A person is generally prohibited from directly or indirectly making an asset available to, or for the benefit of a ‘designated person or entity’; a person or entity acting on behalf of, or at the direction of, a ‘designated person or entity’ (UNSC sanctions only); or an entity owned or controlled by a ‘designated person or entity’ (UNSC sanctions only). (Charter of the United Nations (Sanctions – Iran) Regulations 2008, regulation 15. Autonomous Sanctions Regulations 2011, regulation 14.) An ‘asset’ is an asset or property of any kind, whether tangible or intangible, movable or immovable. (Charter of the United Nations Act 1945, section 2. Autonomous Sanctions Act 2011, section 4.)

23 Iran: ‘Designated person or entity’ UNSC sanctions in relation to Iran Persons or entities designated by the UNSC 1737 Iran Sanctions Committee, of which Australia is the Chair in 2013 and 2014. (Charter of the United Nations (Sanctions – Iran) Regulations 2008, regulation 4.) Australian autonomous sanctions in relation to Iran Persons or entities that the Minister for Foreign Affairs is satisfied have contributed to Iran’s nuclear or missile programs, or assisted Iran to breach UNSC resolutions. (Autonomous Sanctions Regulations 2011, regulation 6.) DFAT maintains a Consolidated List of all designated persons and entities in relation to all UNSC and Australian autonomous sanctions. The Consolidated List and LinkMatchLite data-matching software is available on the DFAT website.

24 Iran: ‘Designated persons’ and enrolments The prohibition may apply to providing training, financial assistance or any other asset to an Iranian student. Universities should check the Consolidated List before enrolling an Iranian student. The prohibition may also be relevant to an Iranian student who holds an account with an Iranian bank that is a designated entity. While the prohibition may inconvenience the student, he or she will still be able to transfer money to Australia. The prohibition should not affect his or her ability to pay university fees.

25 Sanctions permits The Minister for Foreign Affairs, or in some circumstances her delegate, may grant a permit authorising an activity that would otherwise contravene a sanctions measure. The Minister or her delegate may attach conditions to a permit. Different sanctions regimes and different sanctions measures have different criteria which must be satisfied before the Minister or her delegate can grant a permit. The criteria for UNSC sanctions regimes are determined by the UNSC.

26 Iran: ‘Sanctioned service’ permit UNSC sanctions in relation to Iran The Minister may issue a permit authorising the provision of a ‘sanctioned service’ in relation to Iran, including if the contract for delivery of the service includes appropriate end-user guarantees; the Minister has obtained a commitment from the Iranian Government not to use the service in the proliferation of sensitive nuclear activities or for the development of nuclear weapon delivery systems; and the Minister has obtained from the UNSC 1737 Iran Sanctions Committee a determination in advance that the service would clearly not contribute to the development of Iran’s technologies in support of those activities or the development of those systems. (Charter of the United Nations (Sanctions – Iran) Regulations 2008, regulation 14.)

27 Iran: ‘Sanctioned service’ permit Australian autonomous sanctions in relation to Iran The Minister may issue a permit authorising the provision of a ‘sanctioned service’ in relation to Iran if she is satisfied that it would be in the national interest to do so. (Autonomous Sanctions Regulations 2011, regulation 18.)

28 Sanctions offences Contravening a sanctions measure or a condition of a sanctions permit is a serious offence. Punishable for individuals by up to 10 years in prison and/or a fine the greater of $425,000 or three times the value of the transaction. Punishable for bodies corporate by a fine the greater of $1.7 million or three times the value of the transaction. The offences are strict liability offences for bodies corporate, meaning that it is not necessary to prove any fault element (intent, knowledge, recklessness or negligence) for a body corporate to be found guilty. (Charter of the United Nations Act 1945, section 27. Autonomous Sanctions Act 2011, section 16.)

29 Sanctions offences Giving false or misleading information in connection with the administration of a sanction law is also a serious offence. A sanctions permit is taken never to have been granted if false or misleading information was contained in the application for the permit. Punishable by up to 10 years in prison and/or a fine of $425,000. (Charter of the United Nations Act 1945, sections 13A, 28. Autonomous Sanctions Act 2011, sections 15, 17.) These offences apply broadly. To any activity in Australia. To any Australian anywhere in the world. To any person using an Australian flagged vessel or aircraft. (Various sets of regulations made under the Charter of the United Nations Act 1945. Autonomous Sanctions Regulations 2011, various regulations.)

30 Sanctions investigative powers DFAT may issue a notice requiring a person to give information or documents, including under oath, for the purpose of determining whether a sanction law has been or is being complied with. The person must comply with the notice despite any other law of the Commonwealth, a State or a Territory. A person is not excused from complying on the ground that the information or documents might tend to incriminate him or her. Failure to comply is an offence punishable by 12 months in prison. (Charter of the United Nations Act 1945, sections 30-33. Autonomous Sanctions Act 2011, sections 19-22.) We can issue such a notice at the request of a person who wants legal coverage to share information or documents with us.

31 Defences to sanctions offences It is a defence for a body corporate if it proves that it took reasonable precautions, and exercised due diligence, to avoid contravening a sanctions measure or a condition of a sanctions permit. What constitutes ‘reasonable precautions’ and ‘due diligence’ depends on the circumstances. A university would have to demonstrate that it thoroughly considered sanctions issues before, for example, providing relevant training to an Iranian student or collaborating with other universities on relevant issues. Inform us immediately of any changes to an activity that may raise sanctions issues. (Charter of the United Nations Act 1945, section 27. Autonomous Sanctions Act 2011, section 16.) This is in addition to defences that are generally available for individuals and bodies corporate under the Criminal Code.

32 Enrolments: What do I need to do? Before confirming the enrolment of, for example, an Iranian student, consider whether the training you may provide to him or her would constitute the provision of a ‘sanctioned service’. Details of UNSC and Australian autonomous sanctions regimes are available on the DFAT website at www.dfat.gov.au/sanctions.www.dfat.gov.au/sanctions Before confirming the enrolment of, for example, an Iranian student, consider whether the training or other assets you may provide to him or her would constitute ‘dealing with a designated person’. Check the Consolidated List of all persons and entities subject to all UNSC and Australian autonomous sanctions regimes.

33 Enrolments: What do I need to do? If you have any concerns that enrolling a student may contravene a sanctions measure, consider seeking legal advice to assess whether enrolling that student would be prohibited without a sanctions permit. The onus to comply with Australian sanction laws rests on you. In contentious cases, you may submit an informal inquiry to DFAT relating to whether you require a sanctions permit. –Using the Online Sanctions Administration System (OSAS) available on the DFAT website at www.dfat.gov.au/sanctions.www.dfat.gov.au/sanctions –Please include details of any ‘export sanctioned goods’ that the student may use and how he or she may use them.

34 Enrolments: What do I need to do? If you assess that enrolling a student would be prohibited by an Australian sanction law without a sanctions permit, consider whether the relevant criteria for a sanctions permit are satisfied. If you assess that the relevant criteria for a sanctions permit are satisfied, you may submit a formal application for a sanctions permit to DFAT using OSAS. Please do not apply for a permit until you’ve undertaken these steps. Please submit an application as early as possible. Please include as much information as possible, including details of any ‘export sanctioned goods’ that the student may use and how he or she may use them.

35 Enrolments: What does DFAT then do? We will consider your application for a sanctions permit as soon as possible, subject to our current caseload. We may need to consult other Australian Government agencies, other countries, or a UNSC Sanctions Committee. DFAT implements Australian sanction laws diligently, but also in a way that facilitates enrolments and other activities wherever possible. We seek to avoid putting Australian universities and other entities at a disadvantage vis-à-vis counterparts from countries with similar laws.

36 Further information DFAT website: www.dfat.gov.au/sanctions Find details of all UNSC and Australian autonomous sanctions regimes. Check the Consolidated List of all designated persons and entities subject to all UNSC and Australian autonomous sanctions regimes. Download LinkMatchLite data-matching software to assist you to check the Consolidated List. Access OSAS to make an informal inquiry or a formal application relating to a sanctions permit. Subscribe to our sanctions e-mail list. E-mail: sanctions@dfat.gov.au Please use OSAS to contact us in relation to a sanctions permit. Please use e-mail to contact us in relation to any other matter, including if you have information relating to a possible contravention of an Australian sanction law.


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