Chapter 3 - Provisions of the bill
Overview of the bill
The purpose of the bill is to provide a framework for the application,
enforcement and administration of autonomous sanctions.
The bill defines an autonomous sanction as one that:
is intended to influence, directly or indirectly, one or more of the
following in accordance with Australian Government policy:
a foreign government entity;
a member of a foreign government entity;
another person or entity outside Australia; or
involves the prohibition of conduct in or connected with Australia that
facilitates, directly or indirectly, the engagement by a person or entity
described in subparagraph (a)(i), (ii) or (iii) in action outside Australia
that is contrary to Australian Government policy.
The three substantive parts of the bill:
provide for the making of autonomous sanctions by regulation, and
the enforcement of regulations;
- create offences for:
- the contravention of autonomous sanction laws; and
- the provision of false or misleading information in connection
with the administration of an autonomous sanction law; and
establish a scheme for the provision, collection, disclosure and
use of information relevant to the administration of autonomous sanction laws.
The committee acknowledges the significant merit in the policy underlying
the bill, but has identified three matters for further consideration, which
were also raised by the Scrutiny of Bills Committee.
These matters are:
procedural safeguards in the exercise of proscriptive powers against
individuals or entities;
drafting matters, particularly apparent ambiguities within
provisions and inconsistencies between parts of the bill; and
the reasoning provided in the Explanatory Memorandum (EM).
As noted in chapter 1, the Selection of Bills Committee identified the
domestic privacy implications of the bill as an issue for consideration.
The committee is satisfied that the bill is compliant with the Privacy Act
1988. This matter is also addressed below.
The committee has been made aware of issues relating to procedural
safeguards in the bill, in particular:
maintaining transparency and accountability in the application of
sanctions made by regulation;
- minimising the risk that persons may unintentionally contravene autonomous
sanctions because they:
- act in reliance upon other primary legislation, unaware that such
legislation is subject to sanctions made by regulation; or
- are unaware that non-legislative instruments applying sanctions
have been incorporated by reference into sanctions made by regulation;
balancing the significant public interest in the efficient and
effective enforcement of autonomous sanctions with personal rights and
Before turning to individual provisions, the committee notes that these matters
arise primarily from the replication of provisions of the UN sanctions implementation
legislation, the UN Charter Act. In an advice to the Scrutiny of Bills
Committee, the Minister for Foreign Affairs (the Minister) referred extensively
to consistency with the UN Charter Act as a rationale for several clauses in
The committee notes, however, that relying on the UN Charter Act to
support the provisions in the bill may not be adequate. This view is based on three
the approach taken to procedural provisions in the UN Charter Act
appears to be specific to the legally binding nature of the UN sanctions it
the international decision-making context in which UN sanctions
are made; and
the guidelines and practices governing due process in the
development and implementation of UN sanctions.
The legally binding nature of UN
In 2007, DFAT advised the Senate Standing Committee on Legal and
Constitutional Affairs that the UN Charter Act did not include
external review or other procedural fairness-related provisions because it is
concerned with implementing Australia's obligations under Article 25 of the UN
Charter to apply UN sanctions. DFAT advised that there is no legal scope to
delay or alter the implementation of UN sanctions by including such measures in
the UN Charter Act.
The committee notes, however, that the same rationale does not
automatically apply to autonomous sanctions, which do not uniformly have a
basis in binding obligations under international law.
Decision making context of UN
Under Chapter VII of the Charter of the United Nations, the Security
Council can take enforcement measures to maintain or restore international
peace and security. In some cases the Council has resorted to using mandatory
sanctions as an enforcement tool
and has established a number of committees charged with overseeing and
implementing specific sanctions measures.
For example, the Al‑Qaida and Taliban Sanctions Committee considers
listing submissions from member states, delisting requests and proposed updates
to the existing information relevant to the list of individuals or entities
associated with Al-Qaida or the Taliban.
The committees, established pursuant to a resolution passed by the Council,
are subsidiary organs of the Council, consist of all members of the Council,
and make decisions by consensus of all its members. As acknowledged by the
Foreign Minister of Greece, UN sanctions are:
A powerful expression of the collective voice and collective
will of the international community ...
Sanctions, imposed in a manner that signals the unity of
purpose and determination of the international community, can achieve results
without the use of force.
Thus UN sanctions—and the due process requirements built into them—carry
significant weight, legitimacy and credibility in the international community.
Autonomous sanctions do not necessarily have this advantage.
Guidelines and practices governing
due process in UN sanctions
The Security Council has over many years recognised the importance of
ensuring due process for the listing and de-listing of individuals or entities
designated for targeted sanctions.
In September 2005, the UN General Assembly passed a resolution that, among
other things, called upon the Security Council 'to ensure that fair and clear
procedures exist for placing individuals and entities on sanctions lists and
removing them, as well as for granting humanitarian exceptions.' In October
2005 the General Assembly resolved that:
Sanctions should be implemented and monitored effectively
with clear benchmarks and should be periodically reviewed, as appropriate, and
remain for as limited a period as necessary to achieve their objectives and
should be terminated once the objectives have been achieved.
The Assembly called on the Security Council 'to improve its monitoring
of the implementation and effects of sanctions, to ensure that sanctions are
implemented in an accountable manner, to review regularly the results of such
monitoring and to develop a mechanism to address special economic problems
arising from the application of sanctions in accordance with the Charter.' It
also called on the Security Council 'to ensure that fair and clear procedures
exist for placing individuals and entities on sanctions lists and for removing
them, as well as for granting humanitarian exemptions.'
In December 2006, the Security Council gave its commitment to ensuring
that fair and clear procedures exist for placing individuals and entities on
sanctions lists and for removing them, as well as for granting humanitarian
Since then the Security Council has continued to adopt resolutions directing its
sanctions committees to review their guidelines and their consolidated lists.
It has encouraged the committees to continue to ensure that 'fair procedures
exist for placing individuals and entities on and for removing them from the
Consolidated List and direct them to keep guidelines under 'active review in
support of these objectives'.
Each committee has guidelines for the conduct of its work. In 2009, as part of
this commitment, the Security Council adopted a resolution establishing the
Office of the Ombudsperson for the Al-Qaida and Taliban Sanctions Committee.
The Council of the European Union has similarly taken steps to ensure
that the implementation and evaluation of its UN and autonomous sanctions
adhere to basic principles. For example, its guidelines state that:
The introduction and implementation of restrictive measures
must always be in accordance with international law. They must respect human
rights and fundamental freedoms, in particular due process and the right to an
effective remedy. The measures imposed must always be proportionate to their
The guidelines also note the need to respect fundamental rights, which
implies, in particular, that proper attention is given to the protection and
observance of due process rights of the persons to be listed.
In June 2010, the Permanent Representative of Australia to the UN
Security Council commented that due process is essential to the credibility of
Member States have a legal obligation under the Charter to
accept and enforce sanction measures created by the Council pursuant to Chapter
VII. Australia takes this obligation seriously. However, as we have seen in
recent years, the legitimacy and effectiveness of such measures depends, in
large part, on perceptions of procedural fairness.
Australia's autonomous sanctions do not have the same legal standing as
UN sanctions and, based on the provisions of the bill, will not require a
decision‑making process that is subject to the same level of scrutiny. In
this regard, the committee believes that the bill would benefit from providing
assurances about the soundness of the decision-making process and of the
protection of individual rights.
As noted above, the Scrutiny of Bills Committee has identified a number
of provisions that raise issues about procedural safeguards in provisions of
the bill. These provisions are examined individually below.
The application of sanctions by
Subclause 10(1) authorises the Governor-General to make sanctions by
regulation for purposes including the proscription of persons or entities, and
restrictions on the uses or availability of assets and the provision of goods
Before the Governor-General makes such regulations, the Minister must be
satisfied that the proposed regulations will:
facilitate the conduct of Australia's relations with other
countries, or with entities or persons outside Australia; or
otherwise deal with matters, things or relationships outside
The bill does not make provision for the internal or external merits review
of decisions to apply sanctions made by regulation under subclause 10(1)—for
example, decisions to name an individual or entity on a sanctions list, or to
determine that an individual or entity falls within categories of persons or
entities identified on a sanctions list.
While the provisions of the bill do not oust judicial review rights, one
submitter, the Queensland Law Society (QLS), expressed concern about the limitations
of this remedy. The QLS referred to a 2010 decision of the Federal Court,
suggesting that such decisions are not reviewable because they are non-justiciable
In Aye v Minister for Immigration and Citizenship,
a 2:1 majority of the Full Federal Court held that a Ministerial decision
in relation to the application of bilateral financial sanctions to a Burmese
national in Australia on a student visa was a non‑justiciable political
The QLS referred to the court's finding of fact that the Minister made a
determination under the Migration Regulations that the appellant's
presence in Australia was contrary to Australia's foreign policy interests.
This had the effect of cancelling the appellant's visa. The basis for the
determination was that the appellant was deemed to fall within a class of
persons who were subject to sanctions. The appellant was the adult daughter of
a senior member of the Burmese military. Her father was identified by name in
the sanctions list, together with his 'close family members' who were
identified by that category. The appellant had not concealed her identity at
the time of her entry into Australia. She had been in Australia for some time,
had almost completed a masters degree and was about to enter into full-time
employment when her identity was discovered and the Ministerial determination
made. Her claim to remain in Australia rested on a submission that she was
estranged from her father, did not share the views that led to the imposition
of the sanction and was financially independent of her parents.
The QLS noted the court's decision that, if the Minister's determination
were justiciable, any duty to afford procedural fairness would have been
limited to a requirement that the Minister advise the appellant he was
considering making the decision, and allowing her to make submissions as to
whether she was a member of the listed person's family, and whether in
particular she was the daughter of the listed person.
According to the QLS, the decision that such determinations are non‑reviewable
heightens concerns about the sanctions policy underlying the bill. The QLS commented,
in relation to the sanction applied in Ms Aye's case, that:
...the language of the sanction means that it accepts and
embodies the principle of guilt by association without examination of the facts
that support the policy of the sanction. This is repugnant to our common law
tradition, and it is only in times of the gravest national crisis that our laws
have operated on that basis.
The QLS submitted that 'more precision is needed as to the language and
focus of the policy underlying autonomous sanctions'.
The committee considers that a regulation-making power is necessary for
autonomous sanctions to be applied with the requisite speed and flexibility to
respond effectively to situations of international concern.
The committee notes that the decision of the Full Federal Court in Aye
v Minister for Immigration and Citizenship is consistent with the
application of sanctions. There was no prima facie breach of rights in that
case. The decision to apply sanctions is a non-justiciable political decision that
is, by definition, not open to judicial review. There was no substantial
argument put by any submitter for the internal or external merits review of a
decision to impose sanctions. However, government decision making needs to be
clear and transparent. The agreement between the Gillard government and the
Independent Members of Parliament of 7 September 2010 included an
agreement to pursue the principle of transparent and accountable government.
This agreement does not exclude DFAT, Defence or the Attorney-General's
Department. To the extent that it is a whole-of-government agreement, the
commitment to pursue this principle is binding on these departments of state.
The committee has not been made aware of any substantial abuse,
systematic misuse or even aberrant behaviour in the application of autonomous
sanctions to date. Nevertheless, mistakes or abuse could occur in the future.
This needs to be avoided as it could compromise the utility of sanctions
application in the future. Accordingly, as an aid to sound, proper and lawful
decision making, the government should consider firm steps to implement a suite
of appropriate measures that provide for such outcomes on all occasions.
Such measures could include the development of best practice guidelines
for the formulation, application, enforcement and administration of autonomous
sanctions. The principles and guidelines produced by the Council of Europe may
provide useful guidance in this respect.
The committee encourages comprehensive public and industry consultation in the
development of any such guidelines.
The committee recommends that the government consider developing best
practice guidelines for the policy formulation, drafting, implementation,
enforcement, monitoring and administration of autonomous sanctions. These
guidelines could be informed by relevant international resources, research and
Incorporation by reference to extrinsic
Subclause 10(3) permits sanction regulations made under subclause 10(1)
to incorporate material by reference to other instruments, or other writing as
in force from time-to-time. Neither subclause 10(3) nor the EM identify the
types of 'other writing' that may be incorporated by reference.
The Scrutiny of Bills Committee identified subclause 10(3) as a possible
inappropriate delegation of legislation, because the EM does not justify specifically
the need for incorporation by reference. While recognising the need for
flexibility in the application of autonomous sanctions, the Scrutiny of Bills
Committee stated that this explanation 'does not identify the necessity for
regulations to incorporate other instruments by reference'.
In response, the Minister advised that subclause 10(3) corresponds
substantially to subsection 6(3) of the UN Charter Act. The Minister further
noted the targeted nature of autonomous sanctions, the need for flexibility in
setting the scope of sanctions measures, the importance of rapid responses to
situations of international concern, and the benefits of ensuring harmonised
measures across like-minded implementing countries. The Minister advised that
the provision is intended to enable the incorporation of government-prepared
sanctions lists and those prepared by international export control regimes,
such as the Nuclear Suppliers Group, the Missile Technology Control Regime, the
Australia Group and the Wassenaar Arrangement.
The committee recognises the overriding importance of maintaining
consistency with autonomous sanctions imposed by like-minded countries, and the
need for flexibility and timeliness in responding to situations of
international concern. Accordingly, the committee notes the explanation offered
by the government in paragraph 3.36 above. One further matter remains for
The committee notes that the incorporation by reference of 'other
writing' may not provide sufficient guidance to persons whose rights may be
affected by autonomous sanctions.
The committee considers that an indication in the EM of the types of
'other writing' that may be incorporated by reference would assist such persons
to understand the sources they should consult to ascertain the existence and
content of sanctions, and inform themselves of their compliance obligations.
The committee notes that the EM to the legislation amending the UN Charter
Act, the International Trade Integrity Act 2007, indicated that 'other writing'
may include UN Security Council Resolutions, decisions of UN sanctions
committees, or documents prepared by the government where it is not possible or
is inappropriate to identify the matter by reference to UN Security Council
materials. The EM to the International Trade Integrity Act further expressed
the government's intention to incorporate by reference 'publicly available'
The committee recommends that the government amend the Explanatory
Memorandum to include guidance about the types of 'other writing' that may be
incorporated by reference in regulations made under subclause 10(3).
Effect of sanctions on other
Clauses 12 and 13 provide that sanctions applied by regulations made
under Clause 10 take effect over, respectively, existing and future
The Scrutiny of Bills Committee identified these clauses as possible
inappropriate delegations of legislation because:
Clause 12 is a Henry VIII clause, in that it permits subordinate
legislation (regulations made under Clause 10) to take precedence over primary
Clause 13 overrides the doctrine of implied legislative repeal—'the
normal assumption that future legislation may impliedly repeal earlier
The Minister advised the Scrutiny of Bills Committee that the provisions
are necessary and appropriate due to:
the existence of corresponding provisions in the UN Charter Act;
the fact that decisions to impose sanctions are properly matters
for the executive as matters of foreign policy, with Parliamentary oversight of
the legal framework and parameters for adoption;
the highly targeted nature of autonomous sanctions, meaning that
there would be limited circumstances in which autonomous sanctions regulations
would override existing or future laws;
the efficacy of the proposed scheme—in particular, the need to
respond rapidly to situations of grave international concern, without
complications caused by the inadvertent creation of exceptions to, or the
unintentional repeal of, autonomous sanctions; and
the maintenance of appropriate parliamentary scrutiny via subclause
13(2), which enables future legislation to override sanctions regulations by
DFAT further submitted that alignment with the corresponding provisions
in the UN Charter Act is necessary to ensure that autonomous sanctions laws will
have 'legal equivalence' to Australian laws implementing UN sanctions.
The committee acknowledges that in order to respond rapidly to
situations of international concern, autonomous sanctions must be applied and
administered efficiently. The proposed measures have the advantages of efficiency
The committee is concerned, however, about the risk that a person may
unintentionally contravene the proposed legislation because he or she relies
upon another Act of Parliament, unaware that sanction regulations have
superseded the provisions in that other Act. Given the proposed criminal
consequences for the contravention of sanctions, the committee considers that
the EM should provide reasons for the reversal of established principles of
The committee notes this risk could be further managed through effective
'front-end' compliance measures—including public notification mechanisms for autonomous
sanctions created by regulation. The committee notes the Minister's advice to
the Scrutiny of Bills Committee that the government makes substantial efforts
to ensure that the public is advised of sanction laws:
[DFAT] conducts extensive outreach activities to attempt to
ensure that potentially affected persons have relevant information on sanction
laws. This includes targeted outreach activities throughout Australia with
business and industry (at least annually); maintenance of a comprehensive
sanctions website which provides links to relevant legislation and legislative
instruments; and operation of a public email service.
However, one submitter, the Group of Eight Ltd (Go8), expressed concerns
about the adequacy of existing notification mechanisms. The Go8 commented in
December 2010 on difficulties experienced by member universities in obtaining
the necessary information to screen applications from overseas students:
Universities do not have access to intelligence services and
could find themselves in a very difficult position. How should universities
assess the risk posed by individual applicants in advance without such
One Go8 member university, in an attempt to do the right
thing ... sent a batch of more than 20 applications from students in Iran
directly to DFAT for consideration [as to whether these persons were subject to
sanctions]. Nearly three months later there has been no final response. Clearly
this is not a solution for the longer term as universities need to have
flexibility to respond quickly to student enquiries and applications.
The committee reiterates its support for the government taking firm
steps to implement measures to prevent inadvertent breaches of autonomous
sanctions. The committee encourages comprehensive public consultation in the
development and regular review of notification procedures, to ensure that they meet
Clause 14 provides that a superior court may, on the application of the
Attorney-General, grant an injunction restraining a person from engaging in
conduct that contravenes an autonomous sanction made by regulation under Clause
10. Clause 14 provides for permanent (final) injunctions and interim
injunctions, which apply pending the determination of an application for a
Subclause 14(5) prevents the court from requiring, as a condition of an
interim injunction, the Attorney-General to provide an undertaking as to
damages. This removes the usual discretion of the court to require an
undertaking where an interim injunction restraining conduct (such as trade or
business) would, in its opinion, cause adverse consequences if it is ultimately
found that a person has not contravened an autonomous sanction.
A court may determine that adverse consequences would arise, for example, where
an interim injunction would prevent a person from earning a livelihood until
the application for a permanent injunction is resolved. An undertaking as to
damages would compensate the person for his or her lost earnings, should the
court subsequently dismiss the application for a permanent injunction.
As the EM was silent on the reasons for this provision, the Scrutiny of
Bills Committee identified subclause 14(5) as potentially trespassing unduly on
personal rights and liberties. The Scrutiny of Bills Committee called upon the
Minister to explain the rationale for this provision and identify the extent of
detriment that persons may suffer as a result.
The Minister advised that:
the UN Charter Act contains a corresponding provision;
it is not appropriate, as a matter of policy, to require an
undertaking as to damages in an application to prevent the commission of a
criminal offence; and
the provision is consistent with the concept of crown immunity in
respect of a lawfully made decision of a Minister.
The committee notes the explanation offered by the government for the
inclusion of this provision. Each piece of advice at paragraph 3.54 above is
capable of rebuttal or rejection. Arguments for the inclusion of subclause
14(5) appear to be delicately balanced. Accordingly, the committee has had
determinative regard in this instance to the overriding purpose of the bill as
outlined in chapter 1 of this report. Nonetheless, the wider community should
be aware of this significant development and its potential implementation.
Accordingly, the committee considers that the EM should set out the reasons for
including subclause 14(5).
The committee recommends that the government should amend the
Explanatory Memorandum to set out the reasons for including subclause 14(5).
The committee now turns to several drafting issues contained in the
bill. The committee has been made aware of apparent ambiguities within
provisions and inconsistencies between parts of the bill.
Enforcement of sanctions made by
regulation under Clause 10
Part 2, Division 2 of the bill creates mechanisms for the enforcement of
sanctions applied by regulations made under Clause 10. These mechanisms are:
injunctions to restrain contraventions, or apprehended
contraventions, of sanctions;
the invalidations of authorisations (such as licences, permissions,
consents or approvals granted to persons or entities to engage in conduct or
activities that would otherwise be prohibited by sanctions), where such
authorisations are obtained through the provision of materially false or
These provisions are expressed as applying to sanctions imposed, or
authorisations granted, pursuant to regulations made under Clause 10.
Clauses 14 and 15 do not extend to the enforcement of 'sanction laws' more
broadly. ('Sanction laws' are defined in Clause 4 as 'a provision that is
specified in an instrument under subsection 6(1)'.
The effect is that a contravention of a sanction law enlivens the offence
provisions in Clauses 16 and 17.)
This means that enforcement mechanisms for 'sanction laws' will be
governed by the provisions of the relevant 'sanction law', or the common law if
that legislation is silent. This may lead to inconsistencies between enforcement
mechanisms available in respect of regulations made under Clause 10, and those
available under other sanction laws.
The committee notes that the limitation of Part 2, Division 2 to
sanctions made by regulation may be inconsistent with the purpose of the bill, to
'provide for the enforcement of autonomous sanctions (whether applied under
this Act or another law of the Commonwealth)'.
Accordingly, the committee considers that there would be benefit in giving
consideration to extending Part 2, Division 2 to the enforcement of sanction
laws more broadly. If there is no legislative intention to do so, however, the
committee considers that the EM should explain how Part 2, Division 2
is consistent with the purpose of the bill, as expressed in subclause 3(b).
The committee recommends that the government consider:
extending Part 2, Division 2 to the enforcement of sanction laws
as defined in Clause 4; or
if there is no legislative intention to do so, including in the
Explanatory Memorandum an explanation of how Part 2, Division 2 is consistent
with the purpose of the bill expressed in subclause 3(b).
Offences for the contravention of
Clause 16 creates offences for the contravention, by individuals and
bodies corporate, of:
sanction laws; and
conditions of an authorisation (such as a licence, permission or
consent) to engage in conduct or activities otherwise prohibited by a sanction
The relevant maximum penalties identified in subclauses 16(4) and 16(9)
for individuals, 10 years imprisonment and the greater of 2,500
penalty units or three times the value of the relevant transaction or
for bodies corporate, the greater of 10,000 penalty units or
three times the value of the relevant transaction or transactions.
Clause 16 is based on a corresponding provision in the UN Charter Act,
which was inserted by amendment in 2007, in response to the recommendations of
the Cole Inquiry into the conduct of certain Australian companies in relation
to the UN Oil-for-Food Program.
The offences applying to individuals in subclauses 16(1) and 16(2) are
expressed as fault-based offences. This means that each physical element of the
offences (namely, conduct, which contravenes a sanction law or the condition of
an authorisation) must be accompanied by a corresponding mental element (such
as intention, recklessness, knowledge or negligence). Because the bill does not
identify specific fault elements, the Criminal Code implies the following fault
an individual must intentionally engage in the conduct
identified in subclauses 16(1)(a) and 16(2)(a); 
the individual must be reckless as to whether the conduct
contravenes a sanction law or a condition of an authorisation under a sanctions
law for the purposes of subclauses 16(1)(b) and 16(2)(b).
Subclause 16(8) provides that the body corporate offences are of strict
liability, meaning that the offences in subclauses 16(5) and 16(6) do not require
fault elements, but only physical elements (that is, engaging in conduct, which
contravenes a sanction law or a condition of an authorisation). Subclause 16(7)
provides an absolute defence for bodies corporate which can prove that they
took reasonable precautions and exercised due diligence to avoid contravening subclauses
16(5) and 16(6).
In addition, bodies corporate may plead the defence of honest and reasonable
mistake of fact in the Criminal Code.
Four issues arise in respect of Clause 16, which are considered below.
Strict liability offences for
As noted above, offences committed by bodies corporate under subclauses
16(5) 16(6) are of strict liability. The Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers provides that strict
liability offences must be properly justified. The guide cites the Scrutiny of
Bills Committee opinion that such offences should be introduced only after
careful consideration on a case-by-case basis of all available options.
The rationale for the strict liability of bodies corporate in Clause
16(8) is not addressed in the EM, however the Minister advised the Scrutiny of
Bills Committee that:
the clause corresponds to provisions of the UN Charter Act, to
ensure identical consequences for a breach of Australian laws implementing both
autonomous and UN sanctions;
the provision in the UN Charter Act follows the recommendation of
the Cole Inquiry;
the strict liability of bodies corporate is balanced by the
absolute defence of due diligence in the bill.
The committee considers that there is a strong case for the inclusion of
strict liability offences in subclauses 16(5) and 16(6). However, consistent
with the Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers, the committee considers that these reasons should be
set out in the EM.
The committee recommends that the government amend the Explanatory
Memorandum to include a statement of reasons for the imposition in subclause
16(8) of strict liability in respect of the offences contained in subclauses
16(5) and 16(6).
Defining criminal offences by
reference to legislative instruments
The Scrutiny of Bills Committee identified subclauses 16(1) and 16(5) as
potentially trespassing unduly on personal rights and liberties because the
offences are defined by reference to a legislative instrument—namely a 'sanction
law' as designated by a legislative instrument made under Clause 6. The
Scrutiny of Bills Committee sought the Minster's advice as to whether it would
be possible to 'prescribe mechanisms for ensuring that potentially affected
persons receive appropriate notice that a particular law has, under Clause 6,
been specified as a sanction law'.
The Minister advised that the specification of a sanction law by
legislative instrument provides transparency and affords parliamentary scrutiny
by way of disallowance. As noted above, the Minister stated that the government
makes substantial efforts to provide public outreach and advice services.
DFAT further commented that 'the sanction law instrument will act as an index
to all laws to which the provisions of the bill, once enacted, will apply'.
The committee considers that the definition of offences by reference to
'sanction laws' in subclauses 16(1) and 16(5) is desirable. The committee sees
significant benefit in identifying all sanction laws in a single legislative
instrument. This approach would facilitate public awareness of the existence of
sanction laws, as well as parliamentary scrutiny, since the instrument would be
subject to disallowance. The committee considers it important that Clause 16 is
accompanied by effective public notification mechanisms. It is encouraged by
the Minister's assurance of the government's commitment to public outreach.
Defining criminal liability by
reference to administrative instruments
The QLS expressed concern that subclause 16(2) is a violation of the doctrine
of the separation of powers. It stated:
[Sub]clause 16(2)(a) fails to describe what 'conduct' is
prohibited. Therefore an individual cannot refer to the bill and simply
ascertain what acts or omissions will be caught by the legislation. Instead,
the clause purports to criminalise conduct which contravenes a condition of an
authorisation under a sanction law. The making of such authorisations is a
function of the executive arm of government. Therefore, by stating that an
individual who engages in conduct that contravenes a condition of an
authorisation ... under a sanction law, is tantamount to the executive having
the power to create offences of an ad hoc basis. The making of laws and the
creation of offences is a function of the legislature and the delegation of
this power to the executive has serious implications for the separation of
The QLS further submitted that subclause 16(2) may have 'unintended and
unfair consequences' in that it may expose to criminal liability individuals
who are not directly subject to an authorisation. It further noted that there
is 'no reasonable precautions defence available to individuals as there is for
bodies corporate in [sub]clause 16(7)'.
To address its concerns, the QLS proposed a single offence of 'engaging
in conduct that is proscribed under a sanction law', with an inclusive
definition of what may constitute 'proscribed conduct'.
The committee is not convinced that subclause 16(2) presents any
separation of powers issues. It is clear on the face of the provision that the
role of the executive is limited to the granting of authorisations. It is the
legislature that ascribes criminal consequences to the contravention of an
The committee considers remote the prospect that a person may be exposed
to criminal liability where he or she is not directly subject to an
authorisation. The illustrative examples of an authorisation in the note to subclause
suggest that such instruments are issued to individuals upon application, and their
conditions apply only to those individuals. Further, in the event that the
conditions of authorisations have a broader application, the fault element of the
reckless contravention of a condition would likely prevent this outcome.
Under the Criminal Code, a finding of recklessness would require an individual
to have been aware of a substantial risk that his or her conduct would
contravene a condition of an authorisation, and to have nevertheless taken that
It is unlikely, in the committee's view, that an individual would be aware of a
substantial risk that he or she may contravene the conditions of an
authorisation granted to another person.
The committee notes, however, that while the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers does not
expressly address this issue, it includes the following sample offence (to
illustrate a different point, about the identification of the physical elements
of an offence for the contravention of a licence condition):
[T]he offence should be framed in the following terms:
A person is guilty of an offence if:
the person holds a licence (emphasis added); and
engages in conduct; and
that conduct contravenes a licence condition.
Accordingly, the committee considers that for the avoidance of doubt,
consideration should be given to including in subclause 16(2) an additional element
that an individual must hold an authorisation.
The committee favours the approach taken to the framing of the offence
in subclause 16(2) over a single offence of 'engaging in conduct that is
proscribed under a sanction law'. In reaching this view, the committee is
guided by the requirement in the Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers that offences should be drafted:
...so that each physical element of the offence is a in a
separate paragraph. In particular, the conduct, circumstances and results
constituting the offence should be set out in separate paragraphs.
This drafting practice enables the relevant fault elements to be applied
to each physical element. The committee notes that the offence as it is
currently drafted requires an individual to have intentionally engaged
in conduct (that is, an act or omission), and to have been reckless as
to whether that conduct contravenes the condition of an authorisation.
Consistent with the abovementioned Guide, this formulation makes clear that the
contravention is the result of conduct, rather than the conduct itself.
Framing an offence around the conduct itself—that is, the intentional
contravention of a licence condition—may have unintended consequences. It may
mean that an individual who holds an authorisation could avoid criminal responsibility
for contravening its conditions simply because he or she did not specifically
mean to do so. This would be the case even if the individual was aware of a
substantial risk that his or her conduct may contravene the condition, and elected,
unjustifiably in the circumstances, to take that risk. The committee is
concerned that this approach may undermine the enforceability of autonomous
sanctions, and may not provide a sufficient incentive to comply with sanction
laws or the conditions of authorisations.
Finally, while the committee is conscious of the need to prevent
unintentional contraventions of autonomous sanctions, it is not convinced that
a 'due diligence' defence to subclause 16(2) is necessary for individuals. The
fact that an individual exercised due diligence is relevant to the fault
element of recklessness. It is unlikely that an individual who took reasonable
precautions and exercised due diligence to avoid contravening the condition of
an authorisation could be found to have taken an unjustifiable risk in the
circumstances. The committee considers that a specific 'due diligence' defence,
such as that contained in subclause 16(7) for bodies corporate, is necessary
only in respect of strict liability offences.
The committee recommends that, for the avoidance of doubt, the government
consider including in subclause 16(2) an element that an individual must hold
The QLS expressed concern that Clause 16 does not provide sufficient
guidance on front-end compliance—that is, the acts or omissions that are
necessary to comply with the provisions of the bill. It submitted that:
Failure to provide guidance on what is appropriate due
diligence will result in many individuals inadvertently breaching the
legislation. For example, a lawyer performing due diligence in a transaction
may fail to undertake a search which may result in an unintentional breach of
The QLS suggested a front-end compliance model by which DFAT would
undertake measures including:
Guidance documents, hypothetical scenarios, compliance
checklists and decision trees (similar to those used by the Queensland Office
of State Revenue) on their website which would assist the legal profession and
public in complying with this legislation.
It further submitted that:
If the individual or body corporate complies or makes a
genuine attempt to comply with these guidance materials, their actions and
omissions should not be subject to prosecution under Clause 16(10) of the bill.
The Financial Services Council Ltd similarly commented that, 'at the
least, guidance should be provided on the application of the law to clarify who
should comply [with autonomous sanctions] and how'. It proposed legislative
measures directed to promoting front-end compliance, including:
limiting obligations to perform due diligence about the existence
of sanctions to designated 'gatekeepers', to avoid duplication of compliance
activities. (For example, in the case of financial sanctions, it suggested that
only the last sender of funds out of Australia and the first receiver of funds
into Australia should be required to undertake due diligence, and other
entities would be entitled to rely upon those gatekeepers);
limiting criminal liability to international transactions, on the
assumption that the Australian Government (through agencies such as the
Department of Immigration and Citizenship and ASIC) will ensure that there are
no persons in Australia who are on autonomous sanctions lists;
as an additional safeguard to assist Australian companies comply
with the autonomous sanctions regimes of other like-minded countries, requiring
the government to monitor the autonomous sanctions lists of other countries and
provide public notifications of listed entities or persons with a presence in
The committee reiterates its support for effective notification and
public outreach mechanisms, including those directed to front-end compliance.
It strongly encourages widespread consultation with relevant stakeholders in
the formulation and ongoing development of outreach strategies.
The committee does not, however, support the inclusion in the bill of
legislative front-end compliance measures, such as statutory notification requirements.
It is evident from submissions that the nature and scope of due diligence
requirements may be highly specific to individual sanctions. Prescribing standardised
notification and front-end compliance measures may inadvertently enlarge the
compliance burden by requiring actions that may not be necessary in all cases.
The committee notes that the Governor-General has a regulation-making power in
Clause 28 for various matters incidental to the operation of the proposed
legislation. This power would enable the government to implement regulatory
front-end compliance measures that are specific to individual sanctions, if required.
Similarly, the committee is not convinced that a new defence is necessary
for 'genuine attempts' to comply with guidance materials. In the case of bodies
corporate, this factor would be relevant to the 'due diligence' defence in subclause
16(7). In the case of individuals, this would go to the issue of recklessness
in contravening a sanction law or condition of an authorisation under subclauses
16(1) and (2).
Offences for providing false or
Clause 17 creates offences for providing false or misleading information
in connection with the administration of a sanction law. Subclause 17(1)
creates the offence of providing false or misleading information or a document
to a Commonwealth entity. Subclause 17(2) creates the offence of providing
false or misleading information to another person, where the first person is
reckless as to whether the second person will provide that information to a
Commonwealth entity. In both cases, the information or document must be
misleading in a material particular.
As the provision is silent about the fault elements applicable to the
physical elements of the offences, the Criminal Code implies that a person must
intentionally provide the information to the Commonwealth (or a third
person in the case of subclause 17(2)), in connection with the administration
of a sanctions law, and must be reckless as to whether the information
or document was false or misleading.
The QLS identified various concerns with Clause 17, namely:
that the requirement in subclauses 17(1) and 17(2) that
information is provided in connection with the administration of a
sanction law is inconsistent with the purpose of the bill, to 'facilitate the
collection, flow and use of information relevant to the administration
of autonomous sanctions';
a perceived absence of mens rea (fault) in subclauses 17(1) and
that the 'reckless giving' of information or documents in subclause
17(2) should not be a criminal offence.
The QLS proposed the following amendments:
amending subclauses 17(1) and 17(2) to require a person to
know that the information or document he or she provided was false or
amending subclauses 17(1) and 17(2) to require the information or
document provided to be directly relevant to the administration of a
sanction law, rather than provided in connection with a sanction law;
removing the element of recklessness from subclause 17(2).
The committee supports the policy underlying Clause 17 and the drafting
of the provision. To ensure effective compliance monitoring, the committee
considers it appropriate to criminalise the provision of false or misleading
information or documents in connection with the administration of a
sanction law (rather than the narrower requirement of direct relevance). The
committee further supports the fault element of recklessly providing
documents or information that may be false or misleading (as opposed to the
narrower requirement of knowingly providing false or misleading
documents or information).
The committee considers that a direct relevance requirement would not
offer an adequate incentive for persons to provide information or documents to
the Commonwealth in order to monitor compliance. It may enable persons who
deliberately provided false or misleading information or documents to avoid
criminal liability simply due to the degree to which the document or
information was connected with the administration of a sanction law. Similarly,
a requirement that a person must know that the document or information
was false or misleading would inappropriately remove criminal liability from
persons who are aware of a substantial risk that the document or information
may be false or misleading, but nevertheless took the unjustifiable risk of
providing it to the Commonwealth.
Given the importance of enforcement mechanisms to the effectiveness of
autonomous sanctions, and thus Australia's international trading reputation,
the committee considers that it is appropriate to require a high standard of
conduct. It is satisfied that the offences proposed in Clause 17 are
proportionate to the interests sought to be protected.
Given the uncertainty apparent in submissions about the application of
fault elements, the Committee sees benefit in including in the bill or the EM a
statement of the fault elements applicable to each of the physical elements of
the offence. This measure could aid compliance by drawing attention to the
standard of conduct required.
The committee recommends that the government consider including in the
bill or the Explanatory Memorandum an express statement of the fault elements
applicable to each of the physical elements of the offences set out in Clause
In its submission, the QLS identified two undefined terms in the bill,
which it considered would benefit from definition for the avoidance of doubt.
These terms are:
the 'administration' of an autonomous sanctions regime, for the
purposes of the offence of providing false or misleading information in Clause
an 'SES employee' for the purposes of delegating the powers and
functions of a CEO of a designated Commonwealth entity in Clause 27.
The QLS suggested that 'administration' be defined inclusively, to
provide guidance to the legal profession and the public.
Given the criminal consequences of contravening sanction laws, and the
importance of limiting and identifying precisely the persons to whom
legislative power is delegated,
the committee considers that these terms would benefit from definition to
provide certainty. The committee notes that the term 'SES employee' is defined
in the Public Service Act 1999, by reference to the Public Service
The committee recommends that the government consider including in the
an inclusive definition of the 'administration' of an autonomous
sanctions regime for the purposes of Clause 17; and
a definition of an SES employee, by reference to the Public
Service Act 1999, for the purpose of Clause 27.
Clause 22 abrogates an individual's privilege against
self-incrimination, in relation to the provision of documents or information to
the Commonwealth pursuant to a notice issued under Clause 19.
Subclause 22(2) grants a 'use immunity' to such individuals, in that
'information given' and 'the giving of a document' cannot be used in subsequent
proceedings against them (other than proceedings for offences against Clauses
17 and 21).
The Scrutiny of Bills Committee identified Clause 22 as potentially
trespassing unduly on personal rights and liberties. It noted that the EM did
not justify the abrogation of the privilege, or provide reasons as to why the
provision did not also include a 'derivative use' immunity. (That is, a
prohibition on the indirect use of information provided by an individual
to gather other, admissible evidence against him or her.)
The Minister advised that Clause 22 corresponds to a provision in the UN Charter Act,
which implements Recommendation 3 of the Cole Inquiry in relation to conferring
investigatory powers on Commonwealth agencies to monitor compliance with
sanctions. The Minister stated that:
given the correspondence between autonomous and [UN
sanctions], it is appropriate that the same authority exists to enable
sanctions enforcement agencies to monitor compliance with both [UN sanctions]
and autonomous sanctions.
The QLS stated that it did not support Clause 22 for two reasons. First,
it submitted that a 'blanket abrogation of the privilege' is not 'essential in
achieving the objectives of the Federal Government'. It commented that the
privilege is necessary to 'maintain a proper balance between the powers of the
State and the rights and liberties of citizens', and that it is 'a human right
focused on preventing the indignity which occurs in compulsory
self-incrimination'. The QLS acknowledged the need to balance individual rights
with the effective administration of justice, but submitted that a preferable approach
would be a public policy test, placing an onus on the government to prove, in
individual cases, that it is in the public interest to override the privilege.
Secondly, the QLS observed that the immunity does not apply to documents
provided pursuant to a Clause 19 notice—only the giving of a document.
It submitted that subclause 22(2) should be amended to include the
non-admissibility of a document.
The committee acknowledges that the privilege against self-incrimination
is not absolute and must be balanced with the equally important public interest
in enforcing sanctions and holding accountable persons who contravene them. The
committee notes the finding of the Cole Inquiry that the enforcement of
sanctions is critical to the maintenance of Australia's international trading
The committee is of the view, however, that any derogation from the
privilege against self-incrimination, and the absence of derivative use
immunity, should be justified in the EM.
The committee further considers that the use immunity proposed in subclause
22(2) should extend to documents provided pursuant to a Clause 19 notice, in
addition to the giving of the document. It appears to the committee that the
exclusion of documents from the provision would frustrate the immunity. Indeed,
the Minister's advice to the Scrutiny of Bills Committee indicates that the
omission of 'documents' from subclause 22(2) may be an oversight. The Minister
explained the operation of the provision in the following terms:
the information or document is not admissible in
evidence against the person who made it available ... (emphasis added).
The committee recommends that the government amend the Explanatory
Memorandum to the bill to set out the reasons for:
derogating from the privilege against self incrimination in
Clause 22; and
the non-inclusion of derivative use immunity in subclause 22(2).
The committee recommends that the government consider extending the use
immunity recognised in subclause 22(2) to documents provided pursuant to a
notice issued under Clause 19.
Immunity of Commonwealth officers
Clause 25 contains an extensive immunity in favour of persons who, in
good faith, give, disclose, copy, make records or use information or documents
under clauses 18, 19, 23 and 24. The immunity extends to liability to 'any
proceedings for contravening any other law because of their conduct' and 'civil
proceedings for loss, damage or injury of any kind suffered by another person
or entity because of that conduct'. Subclause 25(2) provides that the immunity
does not prevent the person from 'being liable to a proceeding for the conduct
of the person that is revealed by the information or the document'.
Three issues arise in respect of this provision. First, the QLS
[Sub]clause 25(2), as it relates to information and documents
under Clause 19, appears to contradict the protection provided by [sub]clause
22(2). In our view, we consider that the interplay between Clauses 19, 22 and
25 needs to be revisited.
Secondly, the immunity appears to apply exclusively to Commonwealth
officers performing functions under Clauses 18, 23 and 24, and persons
providing documents or information pursuant to notices issued under Clause 19.
It does not extend to whistleblowers who disclose information or documents to
the Commonwealth—including persons from private or non-government entities who
may disclose such information. This issue was raised in the context of the 2007
amendments to the UN Charter Act. In a submission to the Legal and
Constitutional Affairs Committee, Transparency International Australia
suggested amending the provision to include such whistleblowers. The Committee noted,
but did not express an opinion on, this matter and the proposed amendment was
The bills digest to the amending legislation noted that such an approach would
accord with reforms to UN practices and the former Secretary-General's calls
for member states to replicate them.
Thirdly, the need for a wholesale immunity is not justified in the EM.
The committee notes the availability of various immunities and exceptions in
other statutory information management schemes. For example, the Privacy Act
makes provision for the collection, use and disclosure of information other
than in accordance with the Information Privacy Principles, where required or
authorised by law, or for law enforcement purposes. Similar provisions exist in
other statutes, including secrecy legislation.
There is also a defence of 'lawful authority' in section 10.5 of the Criminal
Code, removing criminal responsibility for conduct that is 'justified or
excused by or under a law'.
Turning first to the issue raised by the QLS, the committee is of the
view that the relationship between Clauses 19, 22 and 25 is satisfactory. On
the committee's reading, the effect of subclause 25(2) is that subclause 25(1) provides
an immunity only in respect of the performance of functions under Clauses 18,
19, 23 and 24. Persons performing functions under these provisions remain liable
for their conduct undertaken outside of or separately to these
provisions, but which may be recorded in documents or information provided
under Part 4 of the bill.
The committee is satisfied that there is no conflict between subclauses
22(2) and 25(2) because subclause 22(2) is limited to use immunity rather than
derivative use immunity. This means that the conduct revealed in the
information or document provided, used or disclosed in accordance with Clauses
18, 19, 23 and 24 can be used to gather admissible evidence to support criminal
charges in respect of that conduct.
On the second issue of whistleblower immunity, the committee considers
that this matter is more appropriately addressed in the broader context of public
interest disclosure policy and legislation.
On the third issue of the scope of the proposed immunity, the committee notes
that the EM does not address the reasons for the inclusion, or the scope, of
the immunity in Clause 25. Given that such immunities are a departure from the fundamental
principle of equality before the law, the committee considers that it is
appropriate to explain in the EM why Clause 25 is necessary and proportionate
to the interests sought to be protected.
The committee recommends that the government amend the Explanatory
Memorandum to the bill to explain the reasons for the immunity contained in
The Explanatory Memorandum
A further issue—arising substantially from the reliance on provisions of
the UN Charter Act—is the lack of information provided in the current EM.
The committee notes that the EM to the International Trade Integrity
Bill 2007—which contained the relevant amendments to the UN Charter Act—was
comprehensive, especially in providing reasons for provisions on strict
liability and delegations of legislative power (including incorporation by
The Scrutiny of Bills Committee referred to the reasoning in that EM in its
report on the International Trade Integrity Bill, and consequently made no
further comment on several provisions.
In contrast, as identified by the Scrutiny of Bills Committee, the EM
accompanying the Autonomous Sanctions Bill provides limited or no explanations
for a number of provisions pertaining to core principles governing the scrutiny
of bills. These provisions, and the relevant scrutiny of bills issues, are:
subclause 10(3)—delegation of legislative power (incorporation by
Clause 12—delegation of legislative power (Henry VIII clause);
Clause 13—delegation of legislative power (overriding the
doctrine of implied legislative repeal);
subclause 14(5)—curtailment of personal rights and liberties
(waiver of undertakings as to damages in applications for interim injunctions);
Clause 16—curtailment of personal rights and liberties
(notification procedures for the designation of 'sanctions laws');
Clause 22—curtailment of personal rights and liberties
(abrogation of privilege against self-incrimination);
subclause 24(2)—delegation of legislative power (disclosure of
information to persons specified by legislative instrument).
The committee notes the direction in the Legislation Handbook,
prepared by the Department of Prime Minister and Cabinet, that:
... where a measure in a bill is likely to be the subject of
comment by the Senate Standing Committee for the Scrutiny of Bills, the reasons
for proceeding in the manner proposed in the bill should be explained in the
In 2006, the committee commented that EMs should 'provide members of
parliament with the information necessary to be able to make informed decisions
about the legislation before them'.
The committee notes that the EM, while explaining the effect of provisions
in the bill, did not explain the reasons for including the provisions
identified above. Accordingly, in addition to the matters identified in
recommendations 2, 3, 4, 5, 7, 9 and 11 of this report, the committee considers
that the reasons for these provisions should be included in the EM.
The committee recommends that the government amend the Explanatory
Memorandum to the bill to set out the reasons for including the following
Clause 22; and
Domestic privacy implications of Part 4
In debate, the Deputy Leader of the Opposition and Shadow Minister for
Foreign Affairs, the Hon Julie Bishop MP, expressed concern about the domestic
privacy implications of the bill, arising from Part 4. The opposition called on
the government to elaborate on this aspect of the bill.
Part 4 sets out an information management scheme, to enable a
whole-of-government approach to monitoring and ensuring compliance with
autonomous sanctions. Key provisions are:
Clause 19 (supported by Clauses 20-23),
which invests the CEO of a designated Commonwealth entity (as identified by
regulation) with coercive powers to require persons or entities to provide
information or documents for the purpose of determining compliance with
sanction laws; and
Clauses 18 and 24, which permit:
the CEO of a designated Commonwealth entity to request
information from a CEO of another Commonwealth entity to provide information or
documents for a purpose directly related to the administration of a sanction
the disclosure and use of information and documents within a
designated Commonwealth entity for a purpose connected with the administration
of a sanction law;
the disclosure of information or documents by a designated
Commonwealth entity to persons and entities specified in subclause 24(2), or
others who are prescribed by legislative instrument, for a purpose connected
with the administration of a sanction law. The provision is subject to a
requirement that the CEO of the designated Commonwealth entity must be
satisfied that the recipient will not disclose the information to anyone else
In its submission, DFAT stated that the measures contained in Part 4 accord
with the Information Privacy Principles (IPPs)
because they do not permit:
record keepers to disclose personal information, other than as
authorised under the measures in Part 4; or
persons, bodies or agencies to whom personal information is
disclosed under Part 4 to use or disclose that information other than for
purposes connected with the administration of sanction laws.
DFAT submitted that this is consistent with IPP 11, governing the
disclosure of personal information. IPP 11 relevantly provides that:
a record keeper must not disclose personal information other than
as required or authorised by law (ie, as authorised by Part 4 of the bill); and
those to whom information is disclosed must not use or disclose
the information other than for the purpose for which the information was
disclosed to them (ie, purposes connected with the administration of sanction
DFAT explained that Clause 19 limits the collection of information to the
purpose of determining compliance with a sanction law. It stated that Clause 18
would allow a designated Commonwealth entity access to information held by
other Commonwealth agencies only for a purpose directly related to the
administration of a sanction law. Clause 24 would then limit the authority of
the designated Commonwealth agency to share that information:
within the entity or with specified external entities to purposes
connected with the administration of sanction laws; and
with external entities to cases where the CEO of the designated
Commonwealth authority is satisfied that the recipient of the information will
not disclose the information to anyone else without the CEO's consent.
DFAT further advised that:
These measures are based on Part 5 (and section 2A) of the Charter
of the United Nations Act 1945, which implemented Recommendation 3 of the
Cole Inquiry. Recommendation 3 called for an appropriate body to be given a
power to obtain evidence and information of any suspected breaches or evasion
of sanctions that might constitute the commission of an offence against a law
of the Commonwealth.
The committee is satisfied that the bill is compliant with the Privacy
Act. In considering the provisions in Part 4, the committee has given weight to
the advice of DFAT and the statements of the Minister. The committee further
notes that the legislative policy approval process prescribed in the Legislation
Handbook requires consultation with the Office of the Privacy Commissioner
where the proposed legislation has implications for the privacy of individuals.
The committee notes the importance of monitoring compliance with
sanctions, as identified in the recommendations of the Cole Inquiry. It
considers that these information-sharing arrangements are necessary to
facilitate a coordinated, whole-of-government approach to the administration of
The committee supports the policy underlying the bill. The creation of a
framework for the administration of autonomous sanctions will address
shortcomings in the existing scheme of ad hoc regulations. In doing so, the
proposed legislation will enhance Australia's capacity to respond to, and
contribute to the resolution of, situations of international concern. Similarly,
the effective administration of sanctions—both autonomous and UN-mandated—is
integral to the maintenance of Australia's international trading reputation.
As outlined in this report, however, the committee has identified issues
in relation to procedural safeguards in some provisions of the bill. The
committee further considers that the bill could be strengthened through giving
consideration to the drafting matters identified in this report, and including
in the EM statements of reasons for including the provisions identified in this
The committee notes that the effectiveness of targeted sanctions
depends, in a large part, on the perceived credibility of the mechanisms and
processes through which they are implemented.
In making recommendations on these matters, it is the committee's intention to help
enable the proposed legislation to operate more effectively.
The committee recommends that, subject to consideration of
recommendations 1-12 of this report, the Senate pass the bill.
SENATOR MARK BISHOP
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