Australia and Magnitsky legislation


This Flagpost was updated on 25 August 2021 with additional information on EU sanctions.

On 3 December 2019, the Minister for Foreign Affairs, Marise Payne, asked the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-committee to inquire into the use of targeted sanctions to address human rights abuses. A year later, on 7 December 2020, the Committee tabled its report entitled Criminality, corruption and impunity: should Australia join the Global Magnitsky movement? The first recommendation of the report was that ‘the Australian Government enact stand alone targeted sanctions legislation to address human rights violations and corruption, similar to the United States’ Magnitsky Act 2012’ which provides for sanctions targeted at individuals rather than existing sanctions regimes which are more often directed at states. In August 2021, the Government formally responded to the report, agreeing with the majority of the Sub-committee’s recommendations.

The idea of pursuing Magnitsky-like legislation has been discussed for some years in Australia. In 2018, Labor MP Michael Danby introduced to the Parliament the International Human Rights and Corruption (Magnitsky Sanctions) Bill 2018, but the Bill lapsed with the dissolution of Parliament in 2019 ahead of the election. Most recently, in August 2021, Senator Kimberley Kitching introduced to the Senate a bill entitled International Human Rights and Corruption (Magnitsky Sanctions) Bill 2021, while Senator Janet Rice introduced the Human Rights (Targeted Sanctions) Bill 2021.

The Foreign Minister has also stated that ‘The Australian Government will reform and modernise Australia’s autonomous sanctions laws to enable the imposition of targeted financial sanctions and travel bans against the perpetrators of egregious acts of international concern,’ while both Labor and the Greens have expressed strong support for such legislation.

The proposed legislation would likely reflect the aims of the Magnitsky Act passed by the United States Congress, which provides a legal basis for sanctioning foreign government officials implicated in human rights abuses anywhere in the world. The initial Russia and Moldova Jackson–Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 passed by Congress was expanded and strengthened through the Global Magnitsky Human Rights Accountability Act of 2016 and subsequent Presidential Executive Orders 13818 and 13936.

Since the US legislation came into force, sanctions have been imposed on individuals and entities in numerous states including:

 

Of these, the most significant US actions within the Asia Pacific region relate to China. On 9 July 2020, the US Department of the Treasury’s Office of Foreign Assets Control sanctioned the Xinjiang Public Security Bureau in China and four government officials for serious rights abuses against ethnic minorities in the Xinjiang Uyghur Autonomous Region. In the same month, further sanctions were imposed on the Xinjiang Production and Construction Corps and its key cadres.

Regular reports by the US Treasury and the State Department record the persons and entities against whom sanctions have been applied.

Other administrations have also enacted related legislation. In October 2017 the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) was passed into law in Canada. The Act is regulated by the Justice for Victims of Corrupt Foreign Officials Regulations.

In December 2020, the European Union’s Foreign Affairs Council adopted Decision (CFSP) 2020/1999 and Regulation (EU) 2020/1998 concerning restrictive measures against serious human rights violations and abuses, which together established the first global and comprehensive human rights sanctions regime to be enacted by the European Union. This allows the 27-member bloc to sanction those responsible for gross human rights violations and abusesThe EU has imposed  travel bans and asset freezes on a number of persons and entities responsible for human rights abuses in Russia, China, Libya, DPRK, Eritrea and South Sudan.

In the UK, two major pieces of legislation have had ‘Magnitsky’ elements added to them: the Criminal Finances Act 2017, and the Sanctions and Anti-Money Laundering Act 2018. In its 2019 manifesto, the Conservative Party also promised to ‘further develop an independent Magnitsky-style sanctions regime to tackle human rights abusers head on’. The UK Government announced the first new sanctions using the Sanctions Act in July 2020, imposing asset freezes and travel bans on Saudi citizens alleged to have been involved in the murder of Jamal Khashoggi, and Russian officials allegedly involved in the torture of Sergei Magnitsky in a Moscow jail.

Japan has been somewhat reticent about its views on Magnitsky-type legislation. A media report in February noted that a debate is now underway in Japan on the desirability of a Japanese version of the Magnitsky Act, but that the Japanese Government prefers to pursue human rights diplomacy through ‘dialogue and cooperation’. A Diet group known as the Japan Parliamentary Alliance on China (JPAC), is considering sponsoring a Japanese version of the Magnitsky Act, but the Komeito party’s reluctance to back legislation so apparently targeted at China may require some adjustment of strategy. It was suggested by a senior member of the JPAC that a new parliamentary group that does not name China as a target would gain wider support in the Diet.

Prominent supporters of Australia adopting such legislation include Bill Browder, who was instrumental in promoting the US legislation, and human rights lawyer Geoffrey Robertson, who provided a draft bill in his submission to the parliamentary inquiry. The most vocal critic has been Cheng Jingye, the PRC ambassador to Australia, who reportedly warned Australia not to institute any Magnitsky-like sanctions regimes that could be used against China.

Australia’s existing sanctions regimes—including both United Nations Security Council sanctions and Australian autonomous sanctions—impose various sanctions on foreign entities and individuals, involving restrictions on financial transactions and commercial activities, asset freezes and travel bans. Australian sanctions laws apply to activities in Australia and to activities undertaken overseas by Australian citizens and Australianā€registered bodies corporate. Current Australian sanctions are detailed on the Consolidated List coordinated by the Department of Foreign Affairs and Trade.

However, both the JSCFADT report (p. 22) and the article ‘Why Australia needs a Magnitsky Law, by Geoffrey Robertson and Chris Rummery argue that Australia’s Autonomous Sanctions Act 2011 and other acts are limited by cumbersome administrative procedures, poor transparency or procedural rights, and definitions that do not adequately cover corruption and human rights.

The chair of the parliamentary inquiry Kevin Andrews concluded that ‘Magnitsky-style targeted sanctions will align Australia with a global movement seeking to limit opportunities for human rights abusers, corrupt officials and their beneficiaries to enjoy the proceeds of their abuses’ and that ‘A targeted sanctions regime for serious human rights abuse and corruption will close the gap of opportunity for perpetrators and stop Australia becoming a safe haven for these people’.

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