AUSTRALIA Law and Practice Contributed by: Dennis Miralis, Jack Dennis, Henry Yu and Darren Pham, Nyman Gibson Miralis
2.4 Reporting There are no continuous reporting obligations under Australian sanctions law. However, there are record- keeping obligations and certain government officials have information-gathering powers. Record-Keeping Obligations Two types of records must be retained, as follows: • Any records or documents relating to an applica - tion must be retained for five years by the appli - cant. Importantly, this obligation remains even if the permit is not granted. The five years begins from when the permit was granted or, if it was refused, when the application was made. • Any records or documents relating to the person’s compliance with any conditions of the permit must be retained for five years, beginning on the last day on which an action to which the permit relates was done. Information-Gathering Powers A “CEO of a designated Commonwealth entity” can require a person to give information or documents to determine compliance with a sanction law. A designat - ed Commonwealth entity includes DFAT, the Depart - ment of Defence, the Australian Customs Service, and AUSTRAC. These are called section 353 notices. The section 353 notice will specify the information and/ or documents sought, and the timing and manner in which the notice must be complied with. Information cannot be withheld on the basis that its provision will be self-incriminating. However, neither the information given – nor the giving of the document – is admissible as evidence against the individual in any criminal proceedings or in any proceedings that would expose the individual to a penalty, apart from proceedings for: • providing false or misleading information given in connection with a sanction law; or • failing to comply with the requirement to provide information or documents. Failing to comply with the requirement is a criminal offence, with a penalty of up to 12 months’ imprison - ment.
The criteria that must be met vary depending on the specific activity and the sanctions regime from which derogation is sought. For all permits, the Minister must be satisfied that it would be in the national interest to grant the permit. Additionally, any permits under the COTUNA require approval from the UNSC. According to new DFAT guidance, any permit applica - tion must be in respect of one of the following: • a basic expense dealing, being “a transaction that is necessary for basic expenses”; • a legally required dealing, being “a transaction that is necessary to satisfy a judicial, administrative or arbitral judgement that was made prior to the date which the person or entity who is party to the proposed transaction became a designated person or entity”; or • a contractual dealing, such as “payment of interest on accounts holding controlled assets and pay - ments required under contracts, agreement or obli - gations made before the date on which the assets became controlled assets”. ASO requires all applications to contain “sufficient detail of a specific contravention to which the applica - tion relates” and should not be made unless “there is a clear likelihood of a sanctions contravention occur - ring”. The application process will likely take at least three months and will take even longer for complex activi - ties and activities in high-risk countries or regions. 2.3.2 Provision of Legal Services There is no exception for the provision of legal servic - es to designated persons; activities associated with such services are likely to breach Australian sanctions law. Therefore, the provision of legal services to a des - ignated person requires a permit. There is a general permit authorising certain dealings in association with the provision of certain services directly related to the provision of legal advice or legal representation (SAN-2024-00138). This permit was reissued 30 October 2024.
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