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Counter Terrorism and Transnational Organised Crime (Amendment) Act 2014

REPUBLIC OF VANUATU
COUNTER TERRORISM AND TRANSNATIONAL ORGANISED CRIME (AMENDMENT) ACT NO. 39 OF 2014


Arrangement of Sections


______________________


REPUBLIC OF VANUATU
Assent: 19/12/2014
Commencement: 31/12/2014


COUNTER TERRORISM AND TRANSNATIONAL ORGANISED CRIME (AMENDMENT) ACT NO. 39 OF 2014


An Act to amend the Counter Terrorism and Transitional Organised Crime Act [CAP 313].


Be it enacted by the President and Parliament as follows-


1 Amendment
The Counter Terrorism and Transitional Organised Crime Act [CAP 313] is amended as set out in the Schedule.


2 Commencement
This Act commences on the day on which it is published in the Gazette.


_____________________


SCHEDULE
AMENDMENTS OF THE COUNTER TERRORISM AND TRANSITIONAL ORGANISED CRIME ACT [CAP 313]


1 Section 2
Insert in their correct alphabetic positions:


“Al Qaida Sanctions Committee” means the Committee established under Resolutions 1267 (1999) and 1989 (2011) of the United Nations Security Council;


“basic expenses” includes food stuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges, reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services, or fees or service charges for routine holding or maintenance of frozen funds or other financial assets or economic resources;


“classified security information” means information:


(a) relevant to whether there are or may be grounds for designating a person or identifiable group under this Act as a specified entity; and


(b) held by a specified agency of the Government of Vanuatu; and


(c) that the head of the specified agency certifies in writing in the prescribed form and cannot be disclosed except to the extent provided in section 4E or if:


(i) the information:


(A) might lead to the identification of, or provide details of, the source of the information, the nature, content, or scope of the information, or the nature or type of the assistance or operational methods available to the specified agency; or


(B) is about particular operations that have been undertaken, or are being or are proposed to be undertaken, in pursuance of any of the functions of the specified agency; or


(C) has been provided to the specified agency by the government of another country or by an agency of a government of another country or by an international organisation, and is an information that cannot be disclosed by the specified agency because the government or agency or organisation by which the information has been provided will not consent to the disclosure; and


(ii) the disclosure of the information is likely to:


(A) prejudice the security or defence of Vanuatu or the international relations of the Government of Vanuatu; or


(B) prejudice the entrusting of information to the Government of Vanuatu on a basis of confidence by the government of another country or any agency of such a government, or by any international organisation; or


(C) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or


(D) endanger the safety of any person;


“Resolutions relating to terrorism” means the following Resolutions, including Successor Resolutions of the United Nations Security Council:


(a) Resolution 1267 (1999); and


(b) Resolution 1333 (2000); and


(c) Resolution 1390 (2002); and


(d) Resolution 1455 (2003); and


(e) Resolution 1526 (2004); and


(f) Resolution 1617 (2005); and


(g) Resolution 1735 (2006); and


(h) Resolution 1822 (2008); and


(i) Resolution 1904 (2009); and


(j) Resolution 1988 and 1989 (2011); and


(k) Resolution 2083 (2012),


relating to Osama Bin Laden, the Taliban, Al Qaida and associated individuals, groups, undertakings and entities;


“Sanctions Committee of the United Nations Security Council” means the Al Qaida Sanctions Committee or the 1988 Sanctions Committee;


“1988 Sanctions Committee” means the Committee established under the Resolution 1988 (2011) of the United Nations Security Council;


“specified agency” means any agency of the Government of Vanuatu responsible for law enforcement or national security;”


2 Section 2 (definition of “counter terrorism convention”)
Repeal the definition, substitute


““counter terrorism convention” means any instrument specified in Schedule 1;”


3 Paragraph 3(1)(a)
Repeal the paragraph, substitute


“(a) is in contravention of a counter terrorism convention under Schedule 1; or”


4 Subsection 4(2)
(a) Delete “of the Security Council”
(b) Delete “or an””, substitute “and”
(c) Delete “if approved by the Council of Ministers”


5 At the end of section 4
Add


“(3) Subject to subsection (4) and in addition to subsection (1), the Minister must, upon a request in writing by any person or group so prescribed, provide the reasonable grounds for prescribing a person or group as a specified entity and inform the person or group of their rights under this Act.


(4) The Minister must not disclose any classified security information when providing reasonable grounds referred to under subsection (3) or any proceedings relating to this Act.”


6 Section 4A
Repeal the section, substitute


“4A Revocation or variation of a prescribed specified entity

The Minister may, on the advice of the Attorney General, by Order revoke or vary a prescribed specified entity under subsection 4(1) if:


(a) the Minister:


(i) upon request in writing by a person or group to do so, and the Minister is satisfied on reasonable grounds that the revocation or variation is necessary; or


(ii) at any time, upon his or her own discretion (whether acting under section 4C), is satisfied on reasonable grounds that the revocation or variation is necessary; and


(b) the person or group is not designated by the United Nations Security Council acting under its Resolutions relating to terrorism.”


7 Subsection 4B(2)
Repeal the subsection, substitute


“(2) If a person or group has been designated by the United Nations Security Council acting under Resolutions relating to terrorism, the basis for the United Nations Security Council’s designation of the person or group, and their legal status under this Act is not a matter to be reviewed by the Court.”


8 After section 4B
Insert


“4C Periodic review of prescribed specified entities

(1) The Minister must, after consultation with the Attorney General and Minister of Foreign Affairs, not later than 2 years after the date upon which any person or group is prescribed under subsection 4(1) as a specified entity, review the prescribed specified entity.


(2) The Minister may, not more than 3 months prior to the review:


(a) provide notice to any person or group prescribed as a specified entity under subsection 4(1) of his or her intention to review the prescribed specified entity; and


(b) provide them with an opportunity to provide, in writing, such information that the specified entity wishes to be considered by the Minister for the purposes of the review.


(3) The Minister must give notice of the review referred to in subsection (2) at the last known address of the person or group that is the prescribed specified entity, or their representatives (if any) in Vanuatu, and, on at least 2 separate occasions, by public notice in a national daily newspaper to be circulated in Vanuatu.


(4) The Minister may, by Order, vary, renew or revoke a person or group as a prescribed specified entity if the Minister, after taking into consideration any information provided under subsection (2) and such other matters that he or she considers relevant, determines that:


(a) it is appropriate to do so; or


(b) the grounds for prescribing a person or group contained in section 4 still exists or no longer exists.


(5) A failure to undertake and complete a review under subsection (1) does not, of itself, invalidate any Order made by the Minister to prescribe a person or group as a specified entity under subsection 4(1).


(6) In any Order issued pursuant to this section, the Minister must give notice of his or her determination under this section to the affected person or group at their last known address, or their representatives (if any) in Vanuatu, and, on at least 2 separate occasions, by public notice in a national daily newspaper to be circulated in Vanuatu.


(7) The Minister is not obliged to review the status of any person or groups designated by the United Nations Security Council acting under Resolutions relating to terrorism, or to provide notice under subsection (3).


4D Proceedings involving classified security information

(1) This section applies to any proceedings in a Court concerning the prescribing of a person or group as a specified entity under section 4, or a direction under section 12 of this Act.


(2) The Court must determine the proceedings on the basis of information available to it (whether or not that information has been disclosed to or responded to by all parties to the proceedings).


(3) If the information presented or proposed to be presented, by the Attorney General includes classified security information:


(a) except where proceedings are before the Court of Appeal, the proceedings must be heard and determined by the Chief Justice, or by 1 or more Judges nominated by the Chief Justice or both; and


(b) the Court must, on a request for the purpose by the Attorney General and if satisfied that it is desirable to do so for the protection of (either all or part of) the classified security information, receive or hear (the relevant part or all of) the classified security information in the absence of:


(i) the person or group that has been prescribed as a specified entity under section 4; and


(ii) all lawyers (if any) representing such person or group; and


(iii) members of the public.


(4) Without limiting subsection (3), if the specified entity concerned participates in proceedings:


(a) the Court must approve a summary of the classified security information as defined in section 2 to be presented by the Attorney General except to the extent that a summary of any particular part of the classified security information would itself involve disclosure that would be likely to prejudice the interests as defined in subparagraph 2(a)(ii) of the classified security information; and


(b) if approved by the Court, a copy of the statement must be given to the entity concerned.


(5) This section does not limit any Act that authorises or requires the withholding of a document or the refusal to answer a question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.


(6) Subsections (2) to (5) apply despite the provisions of any other Act.”


9 Subsection 6(1)
Repeal the subsection, substitute


“(1) A person must not directly, or indirectly, wilfully provide or collect property intending or knowing that they will be used, in full or part, in order to:


(a) carry out a terrorist act; or


(b) benefit any person or terrorist group that they know are involved in carrying out one or more terrorist acts.”


10 After subsection 6(2)
Insert


“(2A) In any prosecution for an offence under this section, it is not necessary for the prosecutor to prove that the property collected or provided was actually used, in full or part, to carry out a terrorist act.”


11 Subsection 7(1)
After “terrorist group”, insert “or any person known to be engaged in carrying out terrorist acts”


12 Subsection 7(3)
Delete all the words from and including “by a resolution” to and including “legal services”, substitute “by the Minister under paragraph 12(2)(c)”


13 Subsection 12(1)
Delete “seize”, substitute “take custody and control of”


14 Subsections 12(2) and (3)
Repeal the subsections.


15 Subsections 12(4) and (5)
Renumber the subsections as (2) and (3).


16 Paragraph 12(2)(c)
Delete “.”, substitute “including exemptions authorizing funds and other financial assets or economic resources that the Minister determines are necessary for the payment of basic expenses or extraordinary expenses of a kind that have been approved by a Sanctions Committee of the United Nations Security Council; and”


17 At the end of subsection 12(2)
Add


“(d) must be in writing signed by the Minister.”


18 Paragraph 13(1)(b)
Delete “Attorney General”, substitute “Minister”


19 After subsection 13(1)
Insert


“(1A) The Minister is to give public notice of the direction on at least 2 separate occasions in a national daily newspaper to be circulated in Vanuatu.”


20 Section 14
Repeal the section, substitute


“14 Variation, revocation or expiry of direction

(1) In addition to a direction made under section 12, the Minister may:


(a) make another direction varying:


(i) the property to which the direction relates; and


(ii) the terms and conditions to which the direction is subject to; or


(b) revoke the direction.


(2) The powers given under paragraphs (1)(a) and (b) is to be exercised at any time after the making of the direction:


(a) if the Minister at his or her discretion thinks it is appropriate to do so; or


(b) upon an application in writing by or on behalf of the Administrator or a person who claims an interest in the property concerned.


(3) A direction made under section 12 expires, if:


(a) a person or group ceases to be a prescribed entity under section 4, or ceases to be a person or group listed by the United Nations Security Council under resolutions relating to terrorism; or


(b) a forfeiture order is made under section 20 in relation to the property.


14A Further provisions on management of property of specified entities

(1) The Administrator may do anything that is reasonably necessary to preserve any property that is subject to a direction under section 12, and for that purpose:


(a) may do anything in relation to the property that its owner could do; and


(b) may do so to the exclusion of the owner.


(2) The Administrator is to be paid out of the property the reasonable costs, charges and expenses incurred in connection with the performance or exercise by the Administrator of functions, duties or powers under the direction.


(3) An authority that administers a law of Vanuatu that provides for the registration of title to, or charges over, property of a particular kind may, on application by the Administrator, record on a register kept under that law the particulars of the direction under section 12 that applies to property of that kind.


(4) If particulars referred to in subsection (3) are recorded, a person who subsequently deals with the property is taken under subsection (5) to have notice of the direction at the time of the dealing.


(5) If a person knowingly contravenes the direction, the person is guilty of an offence punishable on conviction by a term of imprisonment of not more than 10 years or a fine of not more than VT 50,000,000 , or both.


(6) If the property is disposed of, or otherwise dealt with, in contravention of the direction, the Attorney General may apply to the Court for an order setting aside the disposition or dealing.”


21 Section 15
Repeal the section, substitute


“15 Judicial review and Appeal

(1) Upon application by a person who owns or controls property subject to a direction under section 12, the Court may vary or revoke the direction.


(2) The Court must, if:


(a) it is satisfied that there are reasonable grounds for the Minister’s actions under section 12, dismiss the application; or


(b) the Court decides that there are no reasonable grounds for the Minister’s actions under section 12, revoke the direction; or


(c) it is satisfied that it is appropriate to do so, vary the direction.


(3) The Court may not revoke a direction made in respect of property owned or controlled by a person or entity designated by the United Nations Security Council under resolutions relating to terrorism.


(4) A reasonable written notice of an application under subsection (1) must be given to the Attorney General by the applicant.


(5) The Court must hear from the Attorney General before deciding on the application under subsection (1).


(6) If the Court revokes the direction, the Attorney General must:


(a) inform the person who owns or controls the property in writing; and


(b) publish a notice of the revocation in the Gazette.


(7) The Attorney General or a person whose property is subject to a direction may appeal to the Court of Appeal against a decision made by a Court under this section.”


22 Section 16
Repeal the section, substitute


“16 Third parties may apply for relief

(1) A person who claims an interest in property that is subject to:


(a) a prohibition under section 6; or


(b) a direction issued under section 12; or


(c) a restraining order under section 18A; or


(d) a forfeiture order under section 20,


may apply to the Court for an order under section 17.


(2) A person who claims an interest in property under paragraph (d) must apply within:


(a) 6 months after the date on which the forfeiture order is made; or


(b) any further time the Court allows on an application for that purpose made before or after the end of the 6 months period.


(3) To avoid doubt, a person or entity prescribed under section 4 may not make an application under this section.


(4) A person making an application under this section must serve notice of the application to the Attorney General as a party to any proceedings on the application.”


23 Section 17
Repeal the section, substitute


“17 Court may grant relief to third party

(1) Subsection (2) applies if:


(a) a person applies to the Court under paragraph 16(1)(a), (b), (c), or (d) in respect of an interest in property; and


(b) the Court is satisfied that the applicant’s claim to the interest is valid.


(2) The Court must, subject to subsection (3), make an order declaring the nature, extent, and value of the applicant’s interest in property if the application under:


(a) paragraph 16(1)(a), declaring that the interest is no longer subject to the prohibition under section 6: or


(b) paragraph 16(1)(b), directing that the interest is no longer subject to the direction under section 12; or


(c) paragraph16(1)(c), directing that the interest is no longer subject to an order made under section 18A; or


(d) paragraph 16(1)(d), either:


(i) directing the State to transfer the interest to the applicant; or


(ii) declaring that there is payable by the State to the applicant an amount equal to the value of the interest declared by the Court.


(3) The Court may, if it thinks fit, refuse to make an order under subsection (2), if it is satisfied that:


(a) the applicant was knowingly involved in any way in the carrying out of one or more terrorist acts, or is wholly owned or effectively controlled, directly or indirectly, by a specified entity; or


(b) the applicant acquired the interest at the time of or after any entity was prescribed as a specified entity, the applicant did not acquire the interest in the property in good faith and for value, without knowing time of the acquisition, property subject to the prohibition in section 6.


(4) To avoid doubt, subsection (3) does not require a refusal to make an order under subsection (2), or limits the circumstances in which the Court may refuse to make an order of that kind.”


24 Section 18
Repeal the section, substitute


“Division 1A Restraint of terrorist property

18 Application for restraining order

(1) The Attorney General may apply to the Court for a restraining order against a realisable property if there is reasonable ground to suspect that the property is a property in which a forfeiture order may be made under section 20.


(2) An application for a restraining order may be made ex parte.


(3) An application for a restraining order must be in writing and must be accompanied by an affidavit stating:


(a) a description of the property against which the restraining order is sought; and


(b) the location of the property; and


(c) the name and address of the person who is believed to be in possession of the property; and


(d) the grounds that the property is a terrorist property in respect of which a forfeiture order may be made under section 20.


(4) For the purpose of this section, “realisable property” has the same meaning as in section 6 of the Proceeds of Crime Act [CAP 284].


18A Restraining orders

(1) The Court may make a restraining order against a property if it is satisfied that the property is a terrorist property.


(2) An order under subsection (1) may:


(a) prohibit any person from disposing of, or otherwise dealing with, the property or a part of the property or interest unless specified in the order; and


(b) at the request of the Attorney General, if the Court is satisfied that the circumstances so required, direct the Administrator:


(i) to take custody of the property or part of the property specified in the order; and


(ii) to manage or otherwise deal with all or any part of the property in accordance with the directions of the Court.


(3) To avoid doubt, the Court may make an order under subsection (1) in relation to a property located inside or outside of Vanuatu.


(4) In addition to paragraph 2(1)(b), the Attorney General may do anything as reasonably necessary for preserving the property and may exercise the power without the owner of the property.


(5) Upon the order under subsection (1), a witness is not required to answer any question or produce any document if the Court is satisfied that answering the question or producing the document may prejudice the investigation of, or prosecution of a person for an offence or prejudice the safety of any person.


18B Undertakings by the State

Before making a restraining order, the Court may require the State to give an undertaking about the payment of damages or costs, or both, in relation to the making and execution of the order.


18C Service of restraining order

A copy of the restraining order must be served on any person affected by it in the way the Court directs.


18D Ancillary orders and further orders

(1) If the Court makes a restraining order, any of the following persons may apply to the Court for an ancillary order:


(a) the Attorney General; or


(b) a person who owns the property that is the subject of the restraining order; or


(c) if the restraining order directs the Administrator to take custody and control of property - the Administrator; or


(d) with the leave of the Court - any other person.


(2) An ancillary order may do any one or more of the following:


(a) vary the property to which a restraining order relates;


(b) vary any condition to which a restraining order is subject;


(c) order a person to be examined on oath before the Court about the affairs of the owner or any person or the defendant;


(d) provide for the carrying out of any undertaking about the payment of damages or costs given by the State in connection with the making of the restraining order;


(e) direct the owner or the defendant to give a specified person, a statement on oath setting out the particulars of the property, or dealings with the property, that the Court directs;


(f) if the restraining order directs the Administrator to take custody and control of property - do any one or more of the following:


(i) regulate the performance or exercise of the Administrator’s functions, duties or powers under the restraining order;


(ii) decide a question relating to the property;


(iii) order a person to do anything to enable the Administrator to take custody and control of the property;


(iv) if the restraining order provides, subject to paragraph 12(2)(c) that a person’s reasonable legal expenses be met out of the property - direct that those expenses be taxed as provided in the ancillary order before being met;


(v) provide for the payment to the Administrator out of the property of the costs, charges and expenses incurred in connection with the performance or exercise by the Administrator of functions, duties or powers under the restraining order;


(g) any other thing that the Court considers necessary in the circumstances.


(3) If a person who has an interest in property against which a restraining order is made applies to the Court for a variation of the order to exclude the person’s interest from the order, the Court may grant the application if the Court is satisfied that:


(a) the interest is not terrorist property; or


(b) the applicant was not knowingly involved in any way in the carrying out of one or more terrorist acts, or is wholly owned or effectively controlled, directly or indirectly, by a specified entity and, if the applicant acquired the interest in good faith and for value, without knowing at the time of acquisition that the property was terrorist property; or


(c) it is in the public interest to do so having regard to all the circumstances, including any financial hardship or other consequence of the interest remaining subject to the order.


(4) The Court must not hear an application under subsection (1) unless the applicant has given reasonable written notice of the application to each other person who is entitled to make an application under that subsection for the restraining order.


(5) The Court may require notice of the application to be given to, and may hear, any person who, in the opinion of the Court, appears to have an interest in the property.


(6) If a person is required, in accordance with an order under paragraph (2)(c) or (e), to make a statement on oath:


(a) the person is not excused from making the statement on the ground that the statement, or part of it, might tend to incriminate the person or make the person liable to forfeiture or a penalty; and


(b) the statement, and any information, document or thing obtained as a direct or indirect consequence of it, is not admissible against the person in any criminal proceedings except a proceeding for perjury in making the statement.


18E Registration of restraining order

(1) An authority that administers a law of Vanuatu that provides for the registration of title to, or charges over, property of a particular kind may, on application by the Attorney General, record on a register kept under that law the particulars of a restraining order that applies to property of that kind.


(2) If those particulars are so recorded, a person who subsequently deals with the property is taken to have notice of the restraining order at the time of the dealing.


18F Contravention of restraining orders

(1) A person who knowingly contravenes a restraining order by disposing of, or otherwise dealing with, property that is subject to the restraining order commits an offence punishable on conviction by:


(a) in the case of an individual - a fine of VT1,000,000 or imprisonment for 2 years, or both; or


(b) in the case of a body corporate - a fine of VT5,000,000.


(2) If a restraining order is made against property and the property is disposed of, or otherwise dealt with, in contravention of the restraining order, the Attorney General may apply to the Court for an order setting aside the disposition or dealing.


(3) If the Court is satisfied that the disposition or dealing was either not for sufficient consideration, or not in favour of a person who acted in good faith, the Court may:


(a) set aside the relevant disposition or dealing with effect from the day when it took place; or


(b) set aside the disposition or dealing with effect from the day of the Court’s order, and declare the right of any person who acquired an interest in the property on or after the day when the disposition or dealing took place and before the day of the order.


18G Court may revoke restraining orders

(1) If the Court has made a restraining order against a person’s property, the Court may, on application by the Attorney General or any person with an interest in the property, revoke the order if satisfied that the property is not, at the time of the making of the application subject to a prohibition under section 6 or an application for a forfeiture order under section 20.


(2) An applicant under subsection (1) must give reasonable written notice of the application to the Attorney General and if the restraining order directed the Administrator to take control of property, the Administrator.”


25 Section 25
After “under”, insert “Division 1A and”


26 Section 51
After “company” (wherever occurring), insert “or other legal persons and arrangements”


27 At the end of the Act
Add


Schedule 1

(Section 2)

UNITED NATIONS CONVENTIONS AND PROTOCOLS

1 The Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963).


2 The Convention for the Suppression of Unlawful Seizure of Aircraft (1970).


3 The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971).


4 The Protocol for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1988).


5 The Convention on the Physical Protection of Nuclear Material (1979).


6 The Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991).


7 The International Convention for the Suppression of Terrorist Bombings (1997).


8 The Convention for the Suppression of Acts of Nuclear Terrorism (2005).


9 The Amendment to the Convention on the Physical Protection of Nuclear Material (2005).


10 The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons (1973).


11 The International Convention against the Taking of Hostages (1979).


12 The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988).”


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