In the wake of the September 11, 2001 terrorist attacks in the United States, the United Nations Security Council adopted Resolution 1373 (2001) imposing a series of obligations on UN Member States to combat terrorism. The Australian Government has consequently introduced a range of measures, including legal reforms, to strengthen Australia’s counter-terrorism capabilities.
It is incumbent upon all those involved in managing and implementing Australia’s overseas aid program to make all reasonable efforts to ensure that aid funds and resources are not being used to support terrorist activity.
It is essential that all working in development are aware of their legal obligations and adopt strategies to avoid any associations with terrorism.
The Hope Inititaive Counter-Terrorism Policy is drawn from the “Guidelines for Strengthening Counter-Terrorism Measures in the Australian Aid Program, Australian Government, September 2004.
The Australian Government has enacted legislation with a number of international counter-terrorism treaties designed to combat terrorism, including by starving individuals and organisations associated with terrorism of funds and resources. There are two separate legislative mechanisms directly prohibiting activities in relation to individuals and organisations associated with terrorism. They are:
Under the UN Charter Act, it is an offence to “directly or indirectly make any asset available to a proscribed person or entity”. An asset is very broadly defined as “asset of any kind, or property of any kind, whether tangible or intangible, movable or immovable”. While the UN Charter Act applies less stringent penalties, it has a much broader application capability in the aid context due to its very wide definition of asset. A list of proscribed persons and entities is available from DFAT at: www.dfat.gov.au/icat/freezing_terrorist_assets.html. Australia’s Minister for Foreign Affairs has the authority to suspend the provisions of this Act to allow the dealing with a proscribed person or entity in certain circumstances. For example, AusAID could seek the Minister’s written permission to make assets available to a proscribed person or entity for the purposes of engaging in peace initiatives.
It should be remembered that, irrespective of the existence of an AusAID agreement or contract, any suspected terrorism related activity should be immediately notified to the national security hotline 1800 123 400.
2.1 The following definitions apply unless the context requires otherwise.
HOPE means Hope Initiative Incorporated
HOPE Counter Terrorism Policy means this policy, active from the Board approval date
DFAT means the Department of Foreign Affairs and Trade, Australia.
Government means Australian Government
Government List means the Australian Government list of terrorist organisations.
Laws means any relevant Australian laws, foreign laws, regulations and conventions designed and targeting terrorist cells and terrorism. [In Australia those Laws include but are not limited to, Commonwealth Criminal Code Act 1995, the Anti Money Laundering and Counter Terrorism Financing Act 2006 (Cth)].
Lists means Department of Foreign Affairs and Trade, Government List and National Security lists regarding potential terrorist threats.
HOPE recognises that it is essential that all HOPE volunteers and anyone associated with HOPE in any capacity are aware of their legal obligations and adopt strategies to avoid any associations with terrorism.
HOPE acknowledges that the Australian Government has adopted a policy and laws consistent with the relevant international counter-terrorism Treaties and UN Security Council Resolution 1373 (2001) of not providing direct or indirect support or resources to organisations and individuals associated with terrorism.
4.1 HOPE will use its best endeavours to ensure that funding provided under any agreement is expended in a manner consistent with the UN Security Council Resolution and related Australia laws.
4.2 Explicit references to the law will be included in all HOPE contracts and agreements by Annexing this Counter-Terrorism Policy. It is important to remember that the legal obligation to comply with the law exists independently of the clause in the contract/agreement. The existence of the clause does not release individuals or organisations from their legal obligations under Australian laws.
This Policy and the following clauses are applicable to agreements and contracts with HOPE and require compliance by all HOPE’s partner organisations:
4.2.1 Commercial Contracts for implementation activities:
The Contractor must when providing any Services and procuring the Supplies have regard to and comply with, and use their best endeavours to ensure that all sub-contractors comply with, relevant and applicable laws, regulations and policies, both in Australia and in the Partner Country, including:
The contractor must use their best endeavours to ensure that funds provided under this Contract, including sub-contracts, do not provide direct or indirect support or resources to organisations and individuals associated with terrorism. If during the course of this Contract, the Contractor discovers any link whatsoever with any organisation or individual associated with terrorism it must inform HOPE immediately.
HOPE funded activities:
The Organisation must use its best endeavours to ensure that all Activities (including those carried out by a in-country implementing partners) comply with relevant Australian and Partner Government laws and regulations, including but not limited to:
Organisations must use their best endeavours to ensure that the Delivery Organisations for the approved Activity have the appropriate capacity to undertake the task and are in no way linked, directly or indirectly, to organisations and individuals associated with terrorism.
4.3 The Counter-Terrorism contract/agreement clauses have two key components. Firstly, they require the other party (be they contractor, partner NGO, or multilateral organisation) to use their “best endeavours” to comply with the law. Secondly, they require that the other party inform AusAID immediately if, during the course of the agreement, any link whatsoever to a proscribed person or entity is discovered.
4.4 The phase “best endeavours” is used in recognition of the difficulties that may be encountered in ensuring that indirect support is not provided. The phase denotes a positive obligation to act. The test of whether or not best endeavours have been used will be specific to the circumstances including the degree of risk in the particular operating environment. By way of a general guide HOPE would expect all development partners at a minimum:
4.5 The second aspect of the clause is the requirement to notify AusAID immediately if any link whatsoever between AusAID funds or an AusAID assisted organisation and a terrorist organisation is discovered.
4.6 Neither law is retrospective. If a new organisation or individual is included on the list subsequent to funds being released, no breach of the laws will have been committed. However, if notified that an organisation or individual has been subsequently added to the list, all assistance to that organisation or individual must cease and AFAP must be advised immediately.
5.1 The greatest risk to HOPE’s activities rests in complying with the UN Charter Act because of the large number of proscribed persons and entities, the broad definition of asset, and the prohibition against both direct and indirect support.
5.2 Direct funding is easily understood. Appropriate checking of the lists by HOPE and our partners at appraisal and during implementation stages is a simple way to avoid providing direct funding, support or resources.
5.3 Guarding against indirect support is more difficult but the risk of indirectly providing support or resources must be adequately assessed and managed in ways that are appropriate to the operating environment in all cases.
The actions required to satisfy the legal and contractual obligations may differ in each case depending on the particular circumstances.
Suggested strategies for managing risk could include, but may not be limited to:
(c) Ensuring that organisations to whom funding, support OR resources are provided and who are themselves further distributing assets, know of, understand and comply with the legal and contractual requirements;
(i) HOPE will provide them with the lists and updates as required;
(d) Conducting spot checks or regular monitoring visits to ensure organisations to whom funding, support or resources are being provided downstream are not on either list; and .
(e) Informing HOPE, and where appropriate the National Security hotline and the Australian Federal Police (AFP) whether in Australia or through their liaison officers in-Country located in the Australian embassies immediately if any credible information becomes available suggesting any links.