1. Reviewing the operation of the Act

A legislated review

1.1Australia’s sanctions regimes offer the potential to tackle serious human rights violations, corruption, and address situations of international concern around the world. This report is a legislated review of the operation of one component of this framework;the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Act 2021.[1]

1.2This chapter provides the background to Australia’s sanctions framework, outlines the conduct of the inquiry, and details the operation of autonomous thematic sanctions in Australia. This chapter then summarises views on the operation of Australia’s autonomous thematic sanctions regimes, outlines the position of the Joint Standing Committee on Foreign Affairs, Defence and Trade Committee (Committee) on these matters, and makes a number of recommendations aimed at improving the operation of autonomous thematic sanctions.

Background

1.3Australia’s sanctions framework consists of international sanctions imposed by a resolution of the United Nations Security Council (UNSC) and autonomous or unilateral sanctions that are imposed by the Australian Government itself, independent of multilateral arrangements. Autonomous sanctions regimes are established through the Autonomous Sanctions Act 2011 (Autonomous Sanctions Act) and the Autonomous Sanctions Regulations 2011 (Autonomous Sanctions Regulations), which facilitate the imposition of targeted sanctions on countries and individuals in response to egregious behaviour of international concern.[2] The Autonomous Sanctions Act’s Explanatory Memorandum (EM) defines autonomous sanctions as.

… punitive measures not involving the use of armed force which a 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.[3]

1.4The EM notes autonomous sanctions are designed to limit the adverse consequences of a situation of international concern and to influence and penalise those responsible.[4] Ms Bronte Moules, Ambassador for Human Rights at the Department of Foreign Affairs and Trade (DFAT) told the Committee sanctions also serve to ‘send a wider message’ about the government’s commitment to human rights, to ‘convey Australia’s stance on egregious situations of international concern’, and to ‘convey solidarity’ with victims of human rights abuses.[5]

1.5Contravention of sanctions laws can result in penalties of up to ten years in prison for individuals and substantial fines for individuals and corporations.[6] Australian businesses, organisations, and individuals may apply for a sanctions permit from the Minister for Foreign Affairs (Minister) under regulation 19 of the Autonomous Sanctions Regulations. A sanctions permit provides authorisation, on humanitarian grounds or when deemed to be in the national interest, to undertake an activity that would otherwise be prohibited under Australian sanctions law.[7]

Expanding the autonomous sanctions framework

1.6On 3 December 2019, the then-Minister for Foreign Affairs, Senator the Hon Marise Payne, tasked the Committee to inquire into and report on the use by Australia of targeted sanctions to address gross human rights abuses. The Committee referred the inquiry to its Human Rights Subcommittee.

1.7In December 2020, the Committee tabled its report, recommending that the Australian Government enact ‘Magnitsky-Style’ targeted sanctions legislation to address thematic areas, including human rights violations and serious corruption. The Committee recommended the proposed legislation have the following features:

• the Minister would decide whether to impose, remove, or vary sanctions (recommendations 17 and 20)
• targeted persons would be offered a right of reply before being sanctioned (recommendation 19)
• sanctions would consist of visa and travel restrictions, would limit a targeted individual or entities’ access to assets, and would restrict access to Australia’s financial systems (recommendation 29)
• the Minister would table in Parliament an annual report advising of sanctions made during the previous year, which would also be referred to the Committee for inquiry (recommendations 24 and 25)
• sanctions established through the proposed legislation would apply to individuals and corporate entities, as well as associated entities and immediate family members or direct beneficiaries of human rights abusers (recommendations 8 and 9)
• an independent advisory body would be established to receive nominations for targeted sanctions (recommendations 12).[12]
  8. In August 2021, the Australian Government agreed in principle with the Committee’s key recommendation to legislate the introduction of a new thematic sanctions regime that would target serious human rights violations and serious corruption, among other thematic areas. The Australian Government ‘agreed’ or ‘agreed in-principle’ to the majority of the Committee’s recommendations, but did not agree to the establishment of an independent advisory body, nor did it agree to offer a right of reply to listed individuals on the basis that, if warned in advance, listed individuals could take steps to mitigate the impact of sanctions prior to their imposition.[13] The Government response stated:

… the Government does not support any reform that would substantially diminish Ministerial discretion in the making of sanctions listing, facilitate unlimited debate about potential listings, or forewarn potential targets.[14]

1.9The Australian Government also agreed in principle to undertake a review of Australia’s autonomous sanctions framework to ensure its alignment with contemporary foreign policy objectives.[15] It noted the Committee’s recommendation to publish an annual report to Parliament, claiming existing processes provided ‘the appropriate level’ of oversight.[16]

1.10On 24 November 2021, in response to the Committee’s recommendations, the Australian Government introduced the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021 (Bill). The Bill’s revised EM described its purpose as follows:

The Bill modernises Australia’s autonomous sanctions legislation by creating a framework to facilitate the establishment of new thematic sanctions regimes to enable Australia to respond flexibly and swiftly to a range of situations of international concern. The expansion of thematic autonomous sanctions regimes will provide Australia with an additional foreign policy tool that can be used to define, defend and demonstrate our values, and protect the international rules-based order.[17]

1.11The Bill would amend the Autonomous Sanctions Act to empower the Minister to autonomously (subject to the written agreement of the Attorney-General and in consultation with relevant ministers) make regulations that would impose non-country-specific targeted thematic sanctions. Sanctions would be applied to an individual or entity that meets the listing criteria, and would consist of financial sanctions prohibiting a listed person or entity from accessing assets (and others from using their assets), and travel bans, prohibiting listed persons from entering or transiting through Australia. Under the Bill, autonomous thematic sanctions could be imposed in relation to a non-exhaustive list of six thematic areas, detailed below.[18]

1.12The Bill was passed by both houses in December 2021 with amendments, including that the Committee be required to commence a review and table a report into the operation of the amending Act as soon as possible after the end of three years after the amending Act’s commencement.[19] The Bill received Royal Assent on 7December2021, thereby requiring the Committee to commence its review into the operation of the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Act 2021 (Amending Act) as soon as possible after 7 December 2024.

Government review of sanctions laws

1.13In accordance with the Australian Government’s commitment to undertake a review into sanctions law (see above), in early 2023, DFAT announced a review (Review) into how Australia’s sanctions laws could better support Australia’s foreign policy objectives. The department consulted with key stakeholders, released an issues paper highlighting seven key themes for consideration, and received 27 submissions.[23]

1.14DFAT completed the Review in June 2024 and published a summary of findings in October 2024, stating the Review’s outcomes would form the basis of advice to Government on possible areas of sanctions law reform. Among the summary of issues raised, DFAT highlighted broad support for the following reforms:

• a more streamlined legal framework
• clarification of the meaning of key terms
• an improved process for applying for permits
• a legislated humanitarian exemption
• the introduction of civil and administrative penalties
• a more streamlined review mechanism
• expanded regulatory functions of the ASO.[24]
  15. Recommendations for legislative change and other reforms were put to government and, at the time of writing, were reported to be under consideration.[25]

Recent developments

United Nations Security Council resolution on humanitarian exemption to sanctions

1.16To mitigate the unintended adverse consequences of multilateral sanctions on humanitarian assistance and other activities that support basic human needs, the UNSC in 2022 adopted Resolution 2664, which provides a humanitarian carve-out or exemption for measures under its sanctions regimes. Resolution 2664 aims to safeguard legitimate humanitarian assistance activities, as defined in its first operative paragraph, against UNSC-imposed sanctions.[26] The resolution also requests humanitarian providers to make ‘reasonable efforts’ to minimise the benefits of their work on designated individuals and entities.[27]

1.17Resolution 2664 (2022) does not apply to the unilateral or ‘autonomous’ sanctions of Member States, including those imposed by the Australian Government under the Autonomous Sanctions Act.

Further amendments to sanctions laws

1.18In February 2024, the Autonomous Sanctions Amendment Bill 2024 was introduced in Parliament. The Bill specified that individuals and entities could be validly sanctioned based on their past conduct or status. It received Royal Assent on 8 April 2024.

Senate inquiry

1.19On 3 July 2024, the Senate referred an inquiry into Australia's sanctions regime to the Foreign Affairs, Defence and Trade References Committee for inquiry. The Senate Foreign Affairs, Defence and Trade References Committee tabled its report on 11 February 2025.[28]

Conduct of inquiry

1.20On 8 December 2024, the Committee announced its inquiry into the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Act 2021 and called for submissions addressing the operation of the Amending Act by 17January 2024.[29]

1.21The Committee received and published seven submissions, which are listed at AppendixA. One public hearing was held in Canberra on 29 January 2024 and witnesses who gave evidence are listed at Appendix B.

1.22The Committee expresses its appreciation to submitters and witnesses who contributed to this inquiry.

The operation of the amending act

1.23The Amending Act has one schedule, which amends the Autonomous Sanctions Act to expand Australia’s autonomous thematic sanctions regimes to enable a flexible and swift response to situations of international concern. Item 4 of the Amending Act specifies that sanctions may be either country-specific or thematic, and sets out a non-exhaustive list of some of the areas to which thematic sanctions may be applied:

1. the proliferation of weapons of mass destruction
2. threats to international peace and security
3. malicious cyber activity
4. serious violations or serious abuses of human rights
5. activities undermining good governance or the rule of law, including serious corruption
6. serious violations of international humanitarian law (IHL).[30]
   24. Section 6A of the Autonomous Sanctions Regulations provides criteria for imposing thematic sanctions under the themes of the proliferation of weapons of mass destruction, significant cyber incidents, serious violations or serious abuses of human rights, and serious corruption.[31] An Information Note is available on DFAT’s website that provides information about Australia’s autonomous human rights and corruption frameworks.[32] Criteria are not provided for threats to international peace and security or for serious violations of IHL.[33]
   25. Item 6 of the Amending Act sets out the specific decision-making process for designating individuals and entities under Australia’s thematic sanctions regimes. It requires that a listing decision be made by the Minister for Foreign Affairs, who must consult and obtain written agreement from the Attorney-General (approval requirement) and who must consult other appropriate ministers prior to imposing sanctions (consultation requirement). DFAT described these provisions as ‘a valuable additional safeguard’ within the sanctions framework.[34]
   26. Guidelines are available through DFAT’s website on criteria that ‘may’ be relevant to the Minister when deciding whether to impose autonomous thematic sanctions.[35] These criteria are not contained within the Act or within associated regulations.
   27. The Bill’s EM makes clear that sanctions decisions are ‘primarily based on foreign policy considerations’, but will also be informed by other relevant matters, which may include human rights, corruption, and international law.[36] Designations are specified through legislative instruments, which are subject to parliamentary disallowance.[37] Sanctions decisions are subject to judicial review.[38]
   28. DFAT’s website provides an email address to which civil society organisations are ‘welcome’ to provide submissions related to sanctions listings.[39] There is no legislative or regulatory requirement for such submissions to be considered by the Minister when making sanctions decisions.

Sanctioned individuals and entities

1.29In relation to the operation of thematic sanctions, DFAT submitted:

Australia has imposed thematic sanctions regularly across the three years since they were introduced. While the raw numbers presented below provide some insight, it should be noted that each sanction imposed under a thematic framework needs to be considered on its own merits as a distinct foreign policy decision.[40]

1.30DFAT told the Committee there has been a ‘massive global step–up’ in terms of the range, the number, and the creativity of sanctions, whilst the geopolitical environment within which Australia imposes sanctions had become more complex.[41] It noted the use of thematic sanctions relative to other autonomous sanctions had ‘steadily increased’ since the passing of the Amending Act.[42] also DFAT also stated that efforts to contravene and avoid sanctions had grown, as had opposition to the use of autonomous sanctions internationally.[43]

1.31As of the adoption of this report, Australia has imposed sanctions on 19 entities and 109 individuals under Australia’s autonomous thematic sanctions regimes (see Figure 1.1, below).[44] Sanctions have been imposed on 85 individuals and 18 entities under the human rights thematic, comprised of the following tranches:

• 25 Russians on the basis of being perpetrators and accomplices in Mr Magnitsky’s abuse and death
• 36 Iranian nationals involved in the oppression of women and girls and the violent crackdown on peaceful protests
• 17 Iranian entities involved in the oppression of women and girls and the violent crackdown on peaceful protests
• 7 Russians implicated in the poisoning of Russian opposition figure Alexei Navalny
• 7 Russians involved in the mistreatment of Mr Navalny at the IK-6 penal colony
• 3 Russians implicated in the poisoning of Russian opposition figure Vladimir Kara-Murza
• 7 Israelis involved in settler violence against Palestinians in the West Bank
• 1 Israeli entity implicated in settler violence against Palestinians in the West Bank.[45]
  32. A further 14 Russian citizens were designated in relation to serious corruption, with ten Russian nationals and one Russian entity also listed in relation to significant cyber incidents.[46] These figures do not include sanctions applied by Australia under its multilateral obligations or through country-specific designations made under the Autonomous Sanctions Act.
  33. A Consolidated List of all individuals and entities designated under Australian sanctions laws is maintained by the ASO and hosted on DFAT’s website.[47] The Consolidated List does not include detailed reasoning for listing decisions.

Source: Australian Government, Autonomous Sanctions (Designated Persons and Entities and Declared Persons—Thematic Sanctions) Instrument 2022, available at: legislation.gov.au/F2022L00411 (accessed 22 January 2024)

Designations made under autonomous thematic sanctions laws by geographical location of individual (left) and thematic framework (both individuals and entities, right), as of 2 October 2024.

Views on the operation of the Magnitsky Amendment Act

1.34The Law Society of New South Wales Young Lawyers (NSW Young Lawyers) described the adoption of Magnitsky-style sanctions in Australia as a ‘critical step’ in addressing human rights violations and corruption.[48] It nevertheless argued that ‘significant enhancements’ were needed if the current autonomous sanctions framework is to fulfil its stated objectives.[49] NSW Young Lawyers also noted, ‘critics argue that Australia’s application of Magnitsky-style sanctions has been limited, delayed, overly-cautious and selective’.[50] The Islamic Council of Victoria (ICV) similarly described Australia’s autonomous sanctions as having played ‘a crucial role in responding to human rights abuses around the world’, whilst also arguing for further reforms.[51] An overview of key legislative and functional changes to Australia’s sanctions framework proposed by submitters and witnesses to this inquiry is provided below.

Thematic areas

1.35Several submitters argued for broadening the themes under which autonomous sanctions are imposed. For example, Dr Brendan Walker-Munro warned of pervasive national security threats to academia, advocating for the expansion of thematic sanctions to bolster research security in Australia’s higher education institutions.[52]

1.36Mirroring a recommendation made by the Committee in its 2020 report,[53] the ICV called for Australia’s sanctions laws to be amended to expressly protect human rights defenders and journalists, as well as humanitarian workers and medical staff. ‘The increased threats posed to these groups warrant specific emphasis on their protection’, the ICV submitted. It further argued, ‘state sanctioned violence or extrajudicial action against journalists and humanitarian workers should also fall within the criteria warranting sanctions under Australia’s regime’.[54]

1.37The Head of the Global Magnitsky Justice Campaign, Sir William Browder KCMG, told the Committee he saw no apparent ‘deficiencies’ in Australia’s sanctions framework, but urged the Australian Government to consider including a state hostage-taking regime as a tool to free people from prison.[55]

1.38Also related to the thematic areas in which Australia imposes sanctions, subsection 3(3)(f) of the Autonomous Sanctions Act identifies ‘serious violations of IHL’ as one of the themes to which sanctions may be applied. The Australian Red Cross (ARC) and International Committee of the Red Cross (ICRC) submitted that the term has a ‘particular significance’ under international law, namely, the violation of IHL. The ARC and ICRC therefore called for the term to be defined within the legislation in conformity with international law to ensure certainty and consistency.[56]

1.39Indeed, DFAT submitted that additional amendments would need to be made to the Autonomous Sanctions Regulations to give the Minister the power to impose sanctions under this thematic area.[57] Somewhat in contrast to its submission, however, DFAT told the Committee that, whilst there were no criteria provided for the international peace and security thematic area or for IHL, both geographic and human rights frameworks had proved to be sufficiently ‘flexible and broad ranging’ to facilitate the imposition of sanctions:[58] ‘at the moment, we haven’t actually identify [sic] the gap’.[59]

The functioning of Australia’s sanctions regimes

1.40The ARC and ICRC argued sanctions can have unintended adverse consequences for humanitarian organisations seeking to deliver assistance in areas in which sanctions are in place, potentially resulting in affected civilian populations going without critical support and placing humanitarian staff at risk. A standing exemption for humanitarian work, claimed the ARC and ICRC, would be an efficient way to safeguard humanitarian action from these unintended consequences, and would help address over-compliance and de-risking practices among donors and the private sector. The submitters therefore recommended that the Australian Government legislates a standing exemption for legitimate humanitarian activities, consistent with UNSC Resolution 2664 (2022), detailed above.[60]

1.41Dr Walker-Munro argued sanctions laws in comparable jurisdictions tend to be ‘more permissive and broader in scope’ than those in Australia.[61] He therefore recommended reforms to strengthen Australia’s sanctions regimes, including prohibiting a listed individual from managing or directing an Australian business, among other measures.[62]

1.42NSW Young Lawyers noted Australia exercises a significant degree of power and influence in the Asia-Pacific, yet has not imposed sanctions on individuals or entities within the region.[63] It therefore recommended Australia’s sanctions regimes focus more on perpetrators of human rights abuses within the immediate region:

Perpetrators in the Asia-Pacific region are likely to have strong ties and networks in Australia. As such, targeted financial sanctions and travel bans against persons and entities in the Asia-Pacific region are likely to be more effective in deterring behaviour.[64]

1.43Finally, some submitters raised concerns at the perceived lack of coordination with like-minded allies operating similar thematic sanctions regimes to Australia.[65] Sir William Browder told the Committee the ‘main issue’ with Magnitsky-style sanctions relates to discrepancies between jurisdictions:

… each country has its own national Magnitsky act. Oftentimes you end up in a situation where a person who’s done something terrible is sanctioned by one or two countries but not by all the countries that have Magnitsky acts. So there are loopholes and opportunities for people.[66]

1.44Sir William Browder proposed the establishment of a cross-border coordination platform with allies to avoid listed individuals and entities from evading the effects of thematic sanctions.[67] He suggested Australia could cooperate with Five Eyes partners on sanctions, ‘in the same way you do on intelligence’.[68]

1.45DFAT acknowledged sanctions have the greatest impact when coordinated across jurisdictions to prevent listed individuals and entities from making use of loopholes and discrepancies between regimes. It further stated that the ASO and relevant agencies remain ‘in close contact with other sanctions-imposing countries to find out what they are doing and to coordinate, where appropriate’.[69] The Human Rights Ambassador told the Committee:

We do work closely with our international partners on sanctions matters. This information exchange is a valuable part of the overall process of considering how we respond to human rights issues of concern. We consider joint action when it is in our national interest to do so; however, it’s not always necessarily the most appropriate or even viable option.[70]

Consistency and transparency

1.46The ICV expressed concern at what it described as Australia’s ‘inconsistent and politicised application’ of sanctions regimes, arguing existing criteria were ‘lax and discretionary’.[71] Whilst it welcomed the swift designation in 2022 of Russian and Iranian nationals, the group pointed to the failure by the Australian Government to impose sanctions against Israel in relation to the 2023 conflict in Gaza.[72] The ICV submitted: ‘Australia’s response to Israel’s latest assault on Gaza exposes the grave limitation of our current sanctions regime’.[73] It therefore called for sanctions to be ‘depoliticised’ to ensure their efficacy, and recommended legislated objective criteria and guidelines for the imposition of sanctions to ensure consistency and fairness.[74]

1.47In order to alleviate the frequency of ‘discretionary and politically driven’ sanctions decisions whilst improving transparency and accountability, the ICV also recommended the establishment of an independent advisory body (akin to that proposed by the Committee in its 2020 report) that would evaluate and provide advice to government in relation to sanctions. Under the ICV’s proposal, the independent advisory body would also evaluate any unintended negative consequences faced by civilian populations in sanctioned areas. The ICV proposed that the Minister be required to respond publicly to the body’s recommendations.[75]

1.48VOICE Australia argued Australia has been slow to use Magnitsky-style laws, suggesting that trade considerations may have impacted the government’s willingness to sanction individuals on human rights grounds.[76] VOICE Australia therefore recommended greater parliamentary oversight of the operation of sanctions laws and the establishment of a ‘Magnitsky Commission’ to advocate the imposition of sanctions, where appropriate, provide research and investigative support to DFAT related to sanctions, and to consult with civil society.[77]

1.49NSW Young Lawyers observed that when it comes to the transparency of sanctions, Australia has ‘adopted quite a liberal approach in some areas’ but measures are ‘not as great as they could be in others’.[78] Also pointing to a purported lack of transparency and consistency in Australia’s autonomous sanctions regimes, NSW Young Lawyers submitted, ‘while certain individuals linked to well-documented abuses have been targeted by sanctions, other perpetrators of similar crimes have enjoyed impunity’.[79] NSW Young Lawyers cautioned that the impact of sanctions may be undermined by the appearance of their selective application and the perception that political considerations outweigh a commitment to human rights and anti-corruption concerns.[80]

1.50Moreover, NSW Young Lawyers submitted that the perceived lack of fairness or accountability of sanctions decisions is exacerbated by the opaque nature of sanctions criteria and the limited information surrounding decision-making; without detailed reasoning for each designation decision, it argued, ‘Australia’s sanctions risks [sic] being perceived as arbitrary or politically motivated, and the integrity of the regime is put into question’.[81] In response, NSW Young Lawyers proposed enhanced public reporting to provide detailed reasoning and evidence for each autonomous designation.[82] NSW Young Lawyers argued that providing ‘specific reasonings is very useful when considering due process’ and that ‘stricter criteria, corresponding policy or guidelines’ may provide ‘transparency and then, in turn, the consistency or greater clarity’.[83]

1.51Stakeholders also highlighted a perceived lack of due process surrounding sanctions decisions. For example, NSW Young Lawyers submitted that Australia’s sanctions regimes lack due process, offer no formal right of appeal, and provide only ‘limited avenues’ for challenging designations made by the Minister. It also noted decisions related to reviewing or revoking listing decisions were ‘entirely discretionary’.[84]

1.52NSW Young Lawyers argued that ‘the opportunity to at least be heard and to challenge the decision is really crucial’. It submitted, ‘judicial review alone is generally insufficient to serve as an adequate safeguard for human rights’,[85] recommending therefore the use of a merits review of sanctions decisions to ensure procedural fairness and natural justice:

If we’re punishing someone for impinging on another person’s human rights, I don’t think we can, by that very act, then be curtailing that person’s human rights and freedoms by not giving them that right to due process.[86]

1.53Relatedly, NSW Young Lawyers raised concerns that there is a lack of transparent reasoning, no requirement for clear evidence of links with a sanctioned individual’s misconduct, and there is no due process for family member designations.[87] It also noted there is currently no independent oversight of sanctions decisions, recommending additional parliamentary oversight or judicial review mechanisms to monitor sanctions decision-making, as well as a periodic review of current designations to ‘ensure they remain proportionate and justified’.[88]

1.54Dr Walker-Munro raised similar concerns regarding a lack of process for de-listing:

Persons who have been the subject of a designation or declaration face substantial and sustained interference with their human rights and freedoms by virtue of a fiat of the Executive.[89]

1.55Accordingly, Dr Walker-Munro argued for the introduction of criteria that would provide the grounds for a review of designation decisions.[90]

1.56Relatedly, Dr Walker-Munro welcomed the consultation and approval requirements in the Amending Act, describing these as ‘appropriate’ and ‘necessary’ safeguards.[91] He nevertheless proposed, in the interests of transparency and accountability, that the DFAT website be updated to more clearly advise members of the public that they may make submissions related to sanctioning individuals or entities.[92] Further, Dr Walker-Munro called for greater clarity around the criteria, methodology, and process for listing and de-listing, recommending either the introduction of a merits review process or a legislative requirement for the Minister to conduct an internal review of sanctions decisions.[93]

1.57In relation to safeguards, DFAT told the Committee the possible human rights implications of listing decisions were considered when assessing sanctions targets, and argued that procedural and legal requirements were in place throughout the listing process to ‘mitigate the risk of human rights infringements’. It also emphasised the approval and consultation requirements within the legislation, and pointed to the requirement to provide a Statement of Compatibility with Human Rights for each listing tranche. DFAT further noted the ability of parliament to disallow legislative instruments through which autonomous sanctions are imposed.[94]

1.58While individuals are sanctioned without prior notice, the Federal Court has held that it is ‘proportionate and appropriate’ to place limitations on the right to a fair hearing to avoid alerting the target and enabling them to move their assets.[95] DFAT also submitted that sanctioned individuals can apply for the Minister to revoke their listing, and may challenge their designation by judicial review at any time.[96]

Committee comment

1.59The Committee welcomes the legislation of Australia’s thematic sanctions framework in accordance with its recommendations of 2020. This expanded framework complements Australia’s pre-existing multilateral and autonomous sanctions regimes, and holds real promise in tackling human rights abuses, curbing serious corruption, and addressing other issues of international concern around the world. Nevertheless, the Committee is concerned that Australia’s thematic sanctions do not yet live up to their full promise and considers there to be areas in which this framework can and should be strengthened, as laid out below.

1.60The Committee welcomes the DFAT-led 2023 review of sanctions laws and anticipates the outcomes of the review will contribute to further legislative change during the 48th Parliament. However, given Magnitsky-style thematic sanctions remain in their infancy, and noting today’s complex and dynamic geopolitical landscape, the Committee considers further periodic reviews will be needed to bolster the effectiveness of Australia’s autonomous sanctions framework. As such, the Committee encourages the Australian Government to review its autonomous sanctions laws no later than six years after the commencement of its last review in January 2023, or sooner upon direction of the Minister.

1.61The Committee acknowledges Australia’s autonomous sanctions framework is one tool among a suite of foreign policy tools that are available to the Australian Government. It also recognises that, even in the face of serious human rights abuses and corrupt conduct, sanctions will not always be appropriate or effective. As such, it is appropriate that the Minister retains full discretion over listing and de-listing decisions—subject to the approval and consultation requirements already embedded in the legislation. The Committee notes, however, this discretion will inevitably contribute to perceptions of inconsistency and a lack of transparency in the application of autonomous sanctions. Accordingly, the Committee considers three reforms are warranted to mitigate these concerns and uphold procedural fairness.

1.62First, the Committee notes the lack of consistent and detailed reasons for designation decisions provided in either the Consolidated List or the legislative instruments through which listings are made. The Committee considers it appropriate that each designation is accompanied by detailed reasoning, beyond simply outlining the thematic area under which an individual or entity is sanctioned. The Committee therefore recommends that the Australian Government ensures that future legislative instruments through which listings are made include detailed reasoning for each designation, subject to considerations of national security, ongoing criminal investigations, or international relations. The ASO should also ensure that all current and future listings in the Consolidated List include detailed reasoning.

1.63Second, in the interests of ensuring greater consistency and transparency, the Committee considers there should be greater parliamentary oversight of Australia’s sanctions regimes. As such, the Committee continues to support the view put forward in its 2020 report that the Minister should report annually to the Parliament (Annual Report) on autonomous sanctions decisions taken during the previous year. The Annual Report should provide detailed reasoning for adding or removing individuals and entities from designation and should provide other relevant details, subject to considerations of national security, ongoing criminal investigations, or international relations. The Committee considers the Annual Report should be referred to the Committee for inquiry as a matter of course.

1.64Third, the Committee notes the Autonomous Sanctions Regulations do not provide criteria for all six thematic areas; both ‘threats to international peace and security’ as well as ‘serious violations of IHL’ lack criteria to inform the Minister’s sanctions decisions in these areas. Noting evidence from DFAT that the lack of specified framework has not impeded its ability to impose sanctions under a geographic framework, the Committee nevertheless considers the inclusion of criteria for the remaining two thematic areas would contribute to greater transparency surrounding sanctions decisions and would enhance the effectiveness of Australia’s sanctions regimes. Further, the elaboration of these criteria would provide greater clarity around the reasons underpinning future designation decisions, thereby enhancing the legitimacy of autonomous thematic sanctions regimes and providing listed individuals and entities with a stronger basis for understanding (and potentially appealing) their designation. As such, the Committee recommends the Australian Government amends the regulations to include criteria for all thematic areas, ensuring ‘serious violations of IHL’ is defined in conformity with international law. The ASO should subsequently publish an Information Note providing information about each of these thematic areas, as it has for the human rights and corruption thematic areas.

1.65Relatedly, the Committee considers that DFAT should update its website with further detail on autonomous sanctions, including to make clear that anyone can propose the imposition of sanctions, to detail the process through which submissions can be made to the ASO, and to detail the process for listing and de-listing individuals and entities.

1.66The Committee also acknowledges evidence on the potential for unintended adverse consequences resulting from the imposition of sanctions, but considers that the unintended consequences of thematic sanctions are likely to be less profound than those of broad country-wide sanctions regimes. Nevertheless, the Committee is persuaded by the merits of a legislated carveout through which legitimate humanitarian organisations are permitted to operate without violating Australia’s sanctions regimes. The Committee does not consider sanctions permits to be an effective or efficient substitute for a standing exemption of this kind. The Committee also notes recent developments within the UNSC that establish a humanitarian exemption for all UNSC-imposed sanctions regimes. The Committee therefore recommends that the Australian Government, in consultation with the humanitarian sector, legislates a humanitarian exemption based on UNSC Resolution 2664.

1.67Finally, the Committee notes the limited evidence demonstrating the impact of autonomous Magnitsky-style thematic sanctions in either deterring or punishing human rights abuses or seriously corrupt conduct. As such, the Committee would welcome ongoing efforts by DFAT and others to monitor the impact of Australia’s sanctions regime and to identify opportunities for future legislative reform.

Recommendations

1.68The Committee recommends that the Australian Government includes detailed reasoning for listing decisions in legislative instruments that impose autonomous sanctions.

1.69The Committee recommends that the Australian Sanctions Office updates and maintains the Consolidated List to include detailed reasoning for each designation.

1.70The Committee recommends that the Minister for Foreign Affairs reports annually to the Parliament on all autonomous sanctions decisions taken during the previous 12 months.

1.71The Committee recommends that the Australian Government amends Section 6A of the Autonomous Sanctions Regulations 2011 to:

• include criteria for the thematic area of ‘threats to international peace and security’
• include criteria for the thematic area of ‘serious violations of international humanitarian law’, in conformity with the term’s meaning under international law.

1.72The Committee recommends that the Australian Government, in consultation with the humanitarian sector, amends the Autonomous Sanctions Act 2011 to provide a standing exemption from all sanctions measures for legitimate humanitarian assistance, consistent with the approach taken in United Nations Security Council Resolution 2664 (2022).

Ms Maria Vamvakinou MP

Chair, Human Rights Subcommittee

Hon Shayne NeumannMP

Chair, Joint Standing Committee on Foreign Affairs, Defence and Trade Committee

Footnotes

[1]Section 4 of the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Act 2021

[2]Autonomous Sanctions Regulations 2011

[3]Explanatory Memorandum to the Autonomous Sanctions Act 2011, p. [2]

[4]Explanatory Memorandum to the Autonomous Sanctions Act 2011, p. [2]

[5]Ms Bronte Moules, Ambassador for Human Rights, Department of Foreign Affairs and Trade (DFAT), Committee Hansard, 29 January 2025, p. 8

[6]Further information on sanctions offences is available here: DFAT, Sanctions offences, available at: dfat.gov.au/international-relations/security/sanctions/sanctions-offences (accessed 2 January 2025)

[7]Australian Government, Autonomous Sanctions Regulations 2011, 8 November 2024, regulation 19; see also, DFAT, Sanctions Permits, dfat.gov.au/international-relations/security/sanctions/what-we-can-do-help/sanctions-permits (accessed 8 January 2025)

[8]Joint Standing Committee on Foreign Affairs, Defence and Trade, Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement? An inquiry into targeted sanctions to address human rights abuses, December 2020, pp. 37–38

[9]Joint Standing Committee on Foreign Affairs, Defence and Trade, Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement? An inquiry into targeted sanctions to address human rights abuses, December 2020, pp. 39–40

[10]European Union, European Union Sanctions, 7 October 2023, available at: eeas.europa.eu/eeas/european-union-sanctions_en#10704 (accessed 3 January 2025)

[11]Sir William Browder KCMG, Head, Global Magnitsky Justice Campaign and CEO, Hermitage Capital Management, Committee Hansard, 29 January 2025, p. 1

[12]Joint Standing Committee on Foreign Affairs, Defence and Trade, Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement? An inquiry into targeted sanctions to address human rights abuses, December 2020

[13]Australian Government, Australian Government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee report: Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement?, 5 August 2021

[14]Australian Government, Australian Government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee report: Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement?, 5 August 2021, p. 3

[15]Australian Government, Australian Government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee report: Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement?, 5 August 2021, p. 13

[16]Australian Government, Australian Government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee report: Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement?, 5 August 2021, p. 12

[17]Revised Explanatory Memorandum to the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021, p. 1

[18]DFAT, Submission 5, p. 2

[19]Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021, clause 4

[20]See DFAT, Australia and Sanctions:Who We Are, dfat.gov.au/international-relations/security/sanctions/who-we-are (accessed 22 January 2025)

[21]Ms Heckscher, Committee Hansard, 29 January 2025, p. 9; and DFAT, Australia and sanctions: Who We Are, dfat.gov.au/international-relations/security/sanctions/who-we-are (accessed 3 February 2025)

[22]DFAT, Submission 5, p. 7

[23]DFAT, Terms of Reference: Review of the legal framework for autonomous sanctions, 2023; see also DFAT, Review of Australia’s sanctions laws, 2023 and DFAT, Issues Paper: Review of Australia’s Autonomous Sanctions Framework, 2023. Submissions are available here: DFAT, Reform of Australia’s Sanctions Laws, dfat.gov.au/international-relations/security/sanctions/reform-australias-sanctions-laws (accessed 6 January 2025)

[24]DFAT, Review of Australia’s sanctions laws

[25]Ms Heckscher, Committee Hansard, 29 January 2025, p. 13; and DFAT, Submission 5.2, p. [4–5]

[26]United Nations Security Council, Resolution 2664 (2022), 9 December 2022

[27]United Nations Security Council, Resolution 2664 (2022), 9 December 2022, operative para 3

[28]See Senate Foreign Affairs, Defence and Trade References Committee, Australia’s sanctions regime, 11 February 2025

[29]Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry into the review of the operation of the amendments made by the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Act 2021, aph.gov.au/Parliamentary_Business/Committees/Joint/Foreign_Affairs_Defence_and_Trade/MagnitskyInquiry

[30]See also, Revised Explanatory Memorandum to Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021, pp. 1–2

[31]See, Autonomous Sanctions Regulations 2011, regulation 6A(1–3).

[32]See, DFAT, Information Note: Autonomous Human Rights and Corruption Sanctions, 22 August 2024, available at: dfat.gov.au/sites/default/files/cso-information-note-22082024.pdf

[33]DFAT, Submission 5, p. 5

[34]DFAT, Submission 5, p. 7

[35]DFAT, Information Note: Autonomous Human Rights and Corruption Sanctions, dfat.gov.au/international-relations/security/sanctions/sanctions-regimes/information-note-autonomous-human-rights-and-corruption-sanctions (accessed 10 October 2025)

[36]Revised Explanatory Memorandum to Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021, p. 2

[37]Legislation Act 2003, s.42

[38]See NSW Young Lawyers, Submission 6.1, p. 1; and DFAT, Submission 5.1, p. 2

[39]DFAT, Information Note: Autonomous Human Rights and Corruption Sanctions, dfat.gov.au/international-relations/security/sanctions/sanctions-regimes/information-note-autonomous-human-rights-and-corruption-sanctions (accessed 10 October 2025)

[40]DFAT, Submission 5, p. 6

[41]Ms Heckscher, Committee Hansard, 29 January 2025, p. 9

[42]DFAT, Submission 5, p. 6

[43]Ms Heckscher, Committee Hansard, 29 January 2025, pp. 9 and 10

[44]Australian Government, Autonomous Sanctions (Designated Persons and Entities and Declared Persons—Thematic Sanctions) Instrument 2022; see also DFAT, Recent listings under the Autonomous Sanctions Regulations 2011, 25 July 2024, available at: dfat.gov.au/news/news/recent-listings-under-autonomous-sanctions-regulations-2011 (accessed 2 January 2025)

[45]Australian Government, Autonomous Sanctions (Designated Persons and Entities and Declared Persons—Thematic Sanctions) Instrument 2022; see also DFAT, Recent listings under the Autonomous Sanctions Regulations 2011, 25 July 2024, available at: dfat.gov.au/news/news/recent-listings-under-autonomous-sanctions-regulations-2011 (accessed 2 January 2025); and Ms Moules, Committee Hansard, 29 January 2025, p. 8

[46]Australian Government, Autonomous Sanctions (Designated Persons and Entities and Declared Persons—Thematic Sanctions) Instrument 2022; see also DFAT, Recent listings under the Autonomous Sanctions Regulations 2011, 25 July 2024, available at: dfat.gov.au/news/news/recent-listings-under-autonomous-sanctions-regulations-2011 (accessed 2 January 2025); and DFAT, ‘Five persons and one entity listed under the Autonomous Sanctions Regulations 2011 – Cyber’, Media Release, 12 February 2025, available at: dfat.gov.au/news/news/five-persons-and-one-entity-listed-under-autonomous-sanctions-regulations-2011-cyber

[47]See DFAT, Consolidated List, dfat.gov.au/international-relations/security/sanctions/consolidated-list (accessed 20 January 2024)

[48]NSW Young Lawyers, Submission 6, p. 17

[49]NSW Young Lawyers, Submission 6, p. 7

[50]NSW Young Lawyers, Submission 6, p. 7

[51]Islamic Council of Victoria, Submission 3, p. 1

[52]Dr Brendan Walker-Munro, Submission 2, p. 5–8. See also NSW Young Lawyers, Submission 6, p. 17 for proposed gender-specific criteria; or Islamic Council of Victoria, Submission 3, p. 12 for proposed criteria regarding egregious violations of international law and the trade of weapons

[53]See, Joint Standing Committee on Foreign Affairs, Defence and Trade, Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement? An inquiry into targeted sanctions to address human rights abuses, December 2020, recommendation 5

[54]Islamic Council of Victoria, Submission 3, p. 14

[55]Sir William Browder, Committee Hansard, 29 January 2025, p. 3

[56]The Australian Red Cross and International Committee of the Red Cross, Submission 1, pp. 1–2

[57]DFAT, Submission 5, p. 14

[58]Ms Heckscher and Ms Moules, Committee Hansard, 29 January 2025, pp. 14–15

[59]Ms Heckscher, Committee Hansard, 29 January 2025, p. 15

[60]The Australian Red Cross and International Committee of the Red Cross, Submission 1, pp. 2–3

[61]Dr Brendan Walker-Munro, Submission 2, p. 5

[62]Dr Brendan Walker-Munro, Submission 2, pp. 13–14

[63]NSW Young Lawyers, Submission 6, p. 15

[64]NSW Young Lawyers, Submission 6, p. 15

[65]See for example, NSW Young Lawyers, Submission 6, pp. 13–14

[66]Sir William Browder, Committee Hansard, 29 January 2025, p. 1

[67]Sir William Browder, Committee Hansard, 29 January 2025, p. 2

[68]Sir William Browder, Committee Hansard, 29 January 2025, p. 4

[69]Ms Heckscher, Committee Hansard, 29 January 2025, p. 8

[70]Ms Moules, Committee Hansard, 29 January 2025, p. 9

[71]Islamic Council of Victoria, Submission 3, pp. 3 and 12

[72]Islamic Council of Victoria, Submission 3, pp. 3–10

[73]Islamic Council of Victoria, Submission 3, p. 9

[74]Islamic Council of Victoria, Submission 3, pp. 11–12

[75]Islamic Council of Victoria, Submission 3, p. 13

[76]VOICE Australia, Submission 4, p. [1–2]

[77]VOICE Australia, Submission 4, p. [3]

[78]Ms Caitlyn Suchanow, Chair, International Law Sub-Committee, NSW Young Lawyers, Law Society of New South Wales, Committee Hansard, 29 January 2025, p. 16

[79]NSW Young Lawyers, Submission 6, pp. 7–8

[80]NSW Young Lawyers, Submission 6, pp. 8–9

[81]NSW Young Lawyers, Submission 6, p. 9

[82]NSW Young Lawyers, Submission 6, pp. 10 and 12

[83]NSW Young Lawyers, Submission 6, p. 17

[84]NSW Young Lawyers, Submission 6, p. 11

[85]NSW Young Lawyers, Submission 6.1, p. 2

[86]Ms Chloe Saker, Vice Chair, International Law Sub-Committee, NSW Young Lawyers, Law Society of New South Wales, Committee Hansard, 29 January 2025, p. 18

[87]NSW Young Lawyers, Submission 6, pp. 12–13

[88]NSW Young Lawyers, Submission 6, pp. 10 and 12

[89]Dr Brendan Walker-Munro, Submission 2, p. 16

[90]Dr Brendan Walker-Munro, Submission 2, pp. 16–17

[91]Dr Brendan Walker-Munro, Submission 2, p. [16]

[92]Dr Brendan Walker-Munro, Submission 2, p. [15]

[93]Dr Brendan Walker-Munro, Submission 2, pp. [16–17]

[94]DFAT, Submission 5, p. 8

[95]DFAT, Submission 5, p. 8

[96]Autonomous Sanctions Regulations 2011, Section 11(2); Judiciary Act 1903, Section 39B; DFAT, Submission 5, p. 8; and DFAT, Submission 5.1, p. 2