Trading with integrity
Sanctions issues for
Australian universities
Antony Horrocks
Assistant Director
Sanctions Section
Department of Foreign Affairs and Trade
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.)
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.)
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.
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
1
Both
• DPRK
• Iran
• Libya
Australian
autonomous
sanctions
• Burma
• Former Yugoslavia 1
• Syria
• Ukraine
• Zimbabwe
Targeted against persons associated with the former Milosevic regime.
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.
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.
‘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).
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.)
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.)
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.)
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.
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.
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.
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.)
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.)
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.)
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.)
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.
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.
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.
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.
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.
– Please include details of any ‘export sanctioned goods’ that the
student may use and how he or she may use them.
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.
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.
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.