Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021
9 December 2021
On 2 December 2021, the Australian Parliament passed the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021 (the Bill).
The Bill amends the Autonomous Sanctions Act 2011 (Cth) (Act) to clarify that autonomous sanctions may be either country-specific, or imposed to address particular issues of international concern (thematic sanctions) including, amongst other things, ‘serious violations or serious abuses of human rights’ and ‘activities undermining good governance or the rule of law, including serious corruption’.
The reforms also require the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT), to commence a review of the operation of the amendments as soon as possible 3 years after commencement.
The reforms respond to the Report of the JSCFADT Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement? (December 2020).
The Law Council provided a submission and supplementary submission to this inquiry last year and appeared before the JSCFADT. In its submission, the Law Council supported efforts to reform and modernise Australia’s existing autonomous sanctions framework to encompass serious human rights abuses and serious corruption (either through amendments to the existing Act, or alternatively the introduction a new standalone Act).
However, it noted with concern that the existing sanctions regime lacks significant safeguards which would ensure that any sanctions are reasonable, necessary and proportionate (ie, the Minister’s power remains highly discretionary, the lack of independent review of decisions, the absence of a right to reply before sanctions are imposed and the lack of reporting on the application of sanctions).
Similar concerns were raised in the JSCFADT’s final report with respect to stand alone targeted sanctions legislation, including that there be:
- guidance on thresholds and applicable conduct, and standards of proof (see recs 4 and 22);
- a legislative requirement to give the targeted person a right of reply, and a requirement for the Minister to consider this, before imposing sanctions (see rec 19);
- a statement of reasons provided (see rec 23); and
- the legislation require the Foreign Minister to publish an annual report to Parliament advising of sanctions (see rec 24).
The Law Council hopes that these issues will be addressed in the above-mentioned statutory review.
An exposure draft of the Autonomous Sanctions Amendment (Thematic Sanctions) Regulations 2011 (Regulations) has subsequently been released which contains details for the new measures. The Regulations introduce four new thematic sanctions regimes under which the Minister may designate a person or entity for the purpose of imposing targeted financial sanctions, or declare a person for the purpose of preventing the person from travelling to, entering or remaining in Australia. These aim to address:
- the proliferation of weapons of mass destruction;
- malicious cyber activity;
- serious violations or serious abuses of a person’s: (i) right to life; or (ii) right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; or (iii) right not to be held in slavery or servitude or right not to be required to perform forced or compulsory labour;
- serious corruption.
It is an offence under section 16 of the Act to directly or indirectly make an asset available to or for the benefit of a designated person or entity, or to use or deal with a designated person’s or entity’s assets (other than in accordance with a permit).1
The Minister for Foreign Affairs anticipates tabling the Regulations once the amended Act comes into effect.
1. See Part 3 of the Autonomous Sanctions Regulations 2011 (Cth).