Posted 30/11/2021 by Leah Ferris
On 24 November 2021, the Assistant Minister for Forestry and Fisheries (Senator Duniam), at the request of the Minister for Foreign Affairs (Senator Payne), introduced the Autonomous Sanctions Amendment (Thematic Sanctions) Bill 2021 (the Bill) into the Senate.
While the power of the Foreign Minister to make a decision to impose sanctions under Australia’s sanctions laws is very broad, stakeholders have raised concerns that the current autonomous sanctions regime is not sufficient for targeting, deterring and punishing human rights violations and have advocated for the Government to introduce legislation which focuses on human rights abuses.
In its report titled Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement?, the Human Rights Sub-committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade recommended 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.
Following the release of the Sub-committee report, both the Opposition and the Australian Greens introduced Bills into the Senate which support the use of sanctions to target human rights abuses. In August 2021, Labor Senator Kimberley Kitching introduced the International Human Rights and Corruption (Magnitsky Sanctions) Bill 2021, while Greens Senator Janet Rice introduced the Human Rights (Targeted Sanctions) Bill 2021.
This Bill implements the commitment made by the Government in response to the Sub-committee report to amend Australia’s current sanctions laws to allow for sanctions to be imposed on individuals and entities responsible for, or complicit in, egregious conduct. This Flagpost will focus on the provisions of the Bill. Further information about approaches taken by other jurisdictions to implement Magnitsky-style laws has been previously published by the Library.
Australia’s sanctions laws
Australia implements two types of sanctions: sanctions imposed as a consequence of Australia’s membership of the United Nations (imposed through the Charter of the United Nations Act 1945), and sanctions imposed autonomously by the Australian Government under the Autonomous Sanctions Act 2011 (the Act) and the Autonomous Sanctions Regulations 2011 (the Regulations).
Autonomous sanctions are punitive measures not involving the use of armed force, which the Government imposes as a matter of foreign policy—as opposed to an international obligation under a United Nations Security Council decision—in situations of international concern. They can be applied to a foreign government entity, a member of a foreign government entity, or another person or entity outside Australia. When considering whether to apply autonomous sanctions, the Government ‘considers Australia’s national interest, including bilateral, regional and multilateral equities, and the impact of sanctions on Australia’s economic, security or other interests’ (p. 1).
Sanctions measures include:
- restrictions on trade in goods and services
- restrictions on engaging in commercial activities
- targeted financial sanctions (including asset freezes) on designated persons and entities and
- travel bans on certain persons.
Provisions of the Bill
The Bill will amend the Act to make clear that autonomous sanctions can be applied to address particular issues (known as thematic sanctions) as opposed to being geographically focused (by reference to particular foreign countries).
Items 1-4 of the Bill amend the objects of the Act to clarify that autonomous sanctions:
- may address matters of international concern in relation to one or more foreign countries and
- without limiting the above, may address the proliferation of weapons of mass destruction; threats to international peace and security; malicious cyber activity; serious violations or serious abuses of human rights; or activities that undermine good governance or the rule of law, including serious corruption.
The need for sanctions to be applied to address malicious cyber activity was not something considered by the Sub-committee in its report. Rather, the Government has stated that the introduction of cyber sanctions ‘was the subject of consultation within Government, including with members of the National Intelligence Community’ (p. 2).
Item 6 of the Bill provides that prior to imposing, or extending the application, of thematic sanctions the Foreign Minister must:
- consult with the Attorney-General and obtain the Attorney-General’s consent in writing and
- consult with other Ministers as the Foreign Minister considers appropriate.
These requirements to consult do not apply where the Foreign Minister is imposing or extending geographic sanctions.
Amendments to the Regulations
The Government has stated: ‘If the Parliament elects to pass the Bill, the Government will amend the Autonomous Sanctions Regulations 2011 to establish three new thematic sanctions regimes: serious violations or serious abuses of human rights; activities undermining good governance and the rule of law, including serious corruption; and malicious cyber activity’.
An exposure draft of the amendments to the Regulations (the draft Regulations) has been published on the Department of Foreign Affairs and Trade’s website.
The Explanatory Memorandum to the draft Regulations provides a summary of the proposed criteria for establishing when the Foreign Minister can list persons and entities with respect to the new thematic sanctions regimes (pp 1-2):
- they have caused, assisted with causing, or been complicit in, a cyber incident or an attempted cyber incident that is significant, or which had it occurred, would have been significant; or
- they have engaged in, been responsible for, or been complicit in serious violations or serious abuses of a person’s right:
- to life; or
- to not to be subjected to torture or cruel, inhuman or degrading treatment or punishment; or
- to not to be held in slavery or servitude, or be required to perform forced or compulsory labour; or
- they have engaged in, been responsible for, or been complicit in an act of corruption that is serious; or
- they are an immediate family member of [a] person who has been listed under the human rights or corruption listing criteria; or
- they are a person who, or entity that, has obtained a financial or other benefit as a result of another’s act, being an act for which that other person or entity has been listed under the human rights or corruption listing criteria.
The draft Regulations do not define terms such as ‘significant cyber incident’ or ‘serious corruption’ but rather list additional criteria the Foreign Minister may consider when determining whether the conduct satisfies the relevant thresholds.
In order for conduct to be considered to be a serious violation/abuse of human rights, the Foreign Minister must be satisfied it amounts to a violation/abuse of a person’s right to live, right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment, or right not to be held in slavery or servitude, or be required to perform forced or compulsory labour.
Will the proposed amendments address stakeholder concerns?
Following the release of the Government’s response to the Sub-committee report, human rights lawyer, Geoffrey Robertson QC, expressed disappointment with the Government’s decision to amend Australia’s existing sanctions legislation instead of introducing a stand-alone Magnitsky Act as recommended by the Sub-committee. He argued that the purpose of Magnitsky-style legislation should be addressing human rights, rather than the pursuit of foreign policy goals. He also criticised the Government’s decision to not establish an independent body to advise the Government on when sanctions should be imposed and a legislative requirement to consult with stakeholders before imposing sanctions.
A key focus for stakeholders has been thematic sanctions applying to serious human rights violations and abuses and serious corruption and whether the Bill/draft Regulations strike an appropriate balance in capturing these types of conduct. For example, Save the Children has issued a media release stating that the Bill does not adequately cover violations against children in war as it ‘does not include any reference to violations of international humanitarian law as sanctionable activity’.
In welcoming the reforms proposed by the Sub-committee, the Law Council of Australia has previously stated that any amendments to Australia’s sanctions regime should include safeguards, including ‘legislative criteria that the Minister as decision-maker should have to consider in the course of making sanctions, including a clear measure of proportionality’.
The Government has committed to undertake a comprehensive review of Australia’s sanctions framework within 12 months of the commencement of the Bill, ‘to ensure the framework is aligned with contemporary foreign policy objectives’ and will include consideration of whether additional legislative reform is necessary.
Further reading