The Terms of Reference are
The Committee shall examine the use of targeted sanctions to address gross human rights abuses.
The Committee shall have particular regard to:
- The framework for autonomous sanctions under Australian law, in particular the Autonomous Sanctions Act 2011 (Cth) and the Autonomous Sanctions Regulations 2011 (Cth)
- The use of sanctions alongside other tools by which Australia promotes human rights internationally
- The advantages and disadvantages of the use of human rights sanctions, including the effectiveness of sanctions as an instrument of foreign policy to combat human rights abuses
- Any relevant experience of other jurisdictions, including the US regarding their Global Magnitsky Human Rights Accountability Act (2016)
The inquiry follows the 2018 Private Members Bill (from Michael Danby MP) - International Human Rights and Corruption (Magnitsky Sanctions) Bill 2018 - which was characterised as
- The advisability of introducing a new thematic regulation within our existing Autonomous Sanctions Regime for human rights abuses
The purpose of the International Human Rights and Corruption (Magnitsky Sanctions) Bill 2018 (The Bill) is to make provisions enabling sanctions to be imposed, at the discretion of the Minister, for the purposes of compliance with United Nations obligations or other international obligations; or for the purposes of preventing or responding to gross human rights abuse or violations; or acts of significant corruption.
The Bill follows the precedent set by the Global Magnitsky Human Rights Accountability Act 2016 (US) and the Sanctions and Anti-Money Laundering Bill 2018 (UK), aimed at curbing the influence of foreign persons and entities who have engaged in activities deems illegal by international human rights law.
The Bill extends powers to the Minster to allow sanctions to be incurred in circumstances which a person, persons or entities have violated international human rights or engaged in acts of significant corruption.
The sanctions applied through this bill restrict the ability of these person(s) or entities from commercial dealings, trades or the use of assets within Australia.
Further, the Bill allows for the Minister to restrict the immigration of person(s) or classes of person(s) who are deemed to have violated obligations outlined in international human rights law. ...
the purpose of this Act is to regulate the activities of foreign persons, through sanctions in immigration, or finance or trade. The sanctions that are imposed by the Minister, through this Act, must be made on the basis of violations of international human rights law. These sanctions ensure that foreign persons who have violated these international human rights obligations are held responsible and that other such persons are so discouraged. The Act strengthens Australia’s commitment to International law.'Why Australia needs a Magnitsky law' by , Geoffrey Robertson and Chris Rummery in (2018) 89(4) AQ - Australian Quarterly 19 commented
the global Magnitsky movement that has its genesis at the turn of the century in Putin's Russia, at a time when Putin was cementing his power. The global Magnitsky movement - orchestrated by Bill Browder, American financier and author of the book Red Notice - is giving human rights the teeth to bite, rather than gnash, by preventing those people accused of human rights abuses and serious acts of corruption from enjoying the fruits of their ill-gotten gains. Its first targets have been Putin's cronies and, as an early measure of the movement's success, Putin's hatred of Browder was evident as he used the Helsinki Summit to call for the American's extradition.
Magnitsky laws are national, not international, laws passed by sovereign parliaments to allow the government to apply targeted sanctions on any individual involved in a human rights violation, from senior officials to lowlevel officers, from judges to policemen, and even non-government actors such as CEOs and contractors. These sanctions take the form of asset freezes for funds held in banks and other financial institutions, as well as bans on visas for entering the country. Putin sought Trump's help to silence Browder because Magnitsky laws are being passed in Western countries around the world (although not yet in Australia) - and are beginning to engender fear amongst Russian profiteers from corruption and human rights abuses. Bill Browder is used to such attention: "in my mind, the fact that Putin keeps bringing up my name publicly shows how rattled he is by the Magnitsky Act and how powerful a tool it is. It is very unusual for Putin to acknowledge his enemies, but in my case he started the personal attacks shortly after the US Magnitsky Act was passed and has continued repeatedly after the passage of each new country's Magnitsky Act".
This is a bad time for international criminal law: a pole-axed United Nations Security Council will not send for trial in the Hague any human rights violator (even Assad) who has "big 5" support, Trump in Helsinki did not even bother to request the arrest of the Polonium and Novichok poisoners or the soldiers who shot down MH17 (with the loss of 38 Australian lives) or to question the invasion of Ukraine. At a time when international criminal law is silent (except in respect of friendless states and their statesmen) Magnitskylaws show how national law can step up to the plate. The Australian Government boasts that it is a champion of human rights and anti-corruption in the Asia-Pacific, but if it is serious about its role as a human rights guardian in the region, then it is time to put a Magnitsky law on the Commonwealth statute book. ...
Sergei Magnitsky was a lawyer in Moscow who blew the whistle on high-level Russian officials who had scammed companies owned by his client, Bill Browder, to the tune of USD $230 million. For this whistleblowing, Magnitsky was immediately arrested by the police he had complained about, and thrown into prison where tame judges ordered him to remain for a year without bail, despite serious illness. He was tortured and eventually died at the hands of middle-ranking officials of Putin's corrupt State apparatus, officials who send the spoils of their profiteering abroad to banks in Switzerland and Cyprus. Bill Browder (ironically, the grandson of Earl Browder, the famous leader of the Communist party in the US between the world wars) has since devoted his assets and his time to promoting local laws that punish human rights abusers, named in memory of Magnitsky, his lawyer killed for his loyalty to both his country and his client. His first success came in 2012, when Obama approved the Sergei Magnitsky Rule of Law Accountability Act, which froze the assets and prohibited visas to 18 Russian officials (including 2 judges) who had been involved in Magnitsky's inhumane treatment. In 2016 this law was widened by The Global Magnitsky Human Rights Accountability Act, which applies worldwide and not just to Russia, as well as to those who have engaged in serious corrupt practices. Its asset freezes and visa bans have continued under the Trump administration, sanctioning 58 people last year. As Browder says, "the Global Magnitsky Act appears to be a very powerful tool because dictators and their governments have traditionally never faced any consequences for their bad deeds, but all of a sudden find themselves financially isolated and publicly shamed"
The virtue of Magnitsky laws is that they are exercises of State sovereignty, and do not rely on international law, treaties or arrangements. In 2017 Canada passed a more advanced version (The Justice for Victims of Corrupt Foreign Officials Act) that additionally placed reporting obligations on banks and other financial institutions, and prohibited all dealings by Canadian companies with listed individuals, on pain of prosecution. European countries are following the US and Canadian lead. The UK - after the Salisbury poisoning - amended its Sanctions Bill to enable the recovery of assets held in Britain by foreign human rights abusers.The authors ask why are Magnitsky laws likely to be effective?
Simply, because the foreign abusers they target do not, for the most part, want to keep their profits at home. They want to stash their cash in safe Western banks, use the money to holiday and play the casinos in the West, and to send their children to private schools and universities and their parents to the better-equipped hospitals in Europe and the USA. As Boris Nemtsov, Putin's courageous political opponent pointed out before his assassination in 2015, the best way for the UK to reduce Putin's support from oligarch friends is to stop them enrolling their children at Eton.
Magnitsky laws do not at this stage go that far, but campaigners believe they should. Of course, normally we try not to visit the sins of the fathers upon their children, but in the case of corrupt and brutal officials, who have committed criminal acts in order to benefit their families, barring their children and their parents as well from entering our countries seems fair enough.
A Magnitsky law cannot affect heads of state or diplomats who enjoy immunity, but it may deter the 'train drivers to Auschwitz' who are tempted to use their profits from corruption and human rights abuses to pay for access to Western hospitals and schools that are better than in their home counties, where these amenities have been downgraded as a result of their own corruption. ...
When the first law was introduced by Obama in 2012, Putin's puerile response was to stop American families from adopting Russian orphans. Then, more logically, he introduced his own Magnitsky law, which targeted American officials involved in Guantanamo Bay, although they had no assets in Russian banks and Dick Cheney is unlikely to want to holiday in the Kremlin.They go on to ask should Australia have a Magnitsky law, commenting
Our cultural and financial infrastructures should not be made available to those who abuse human rights, whether they are mass murderers of Tamils or Rohingya, or corrupt Malaysian politicians or Chinese officials involved in oppressing democracy advocates, human rights lawyers and Falun Gong members. ... Australia should be part of a global movement insisting that foreign crooks stay in the country their corruption has emaciated. Some of our near neighbours suffer from top-level corruption (see, until recently, the Malaysian Prime Minister).
Australia, like any other sovereign nation, has power to sanction foreign miscreants. The Charter of the United Nations Act 1945 (Cth), a Doc Evatt initiative back in 1945, gives force to any sanction imposed by the UN Security Council, and is applied automatically to those it designates - usually for supplying or financing arms to pariah regimes. But it only applies to the limited number of persons listed by the U.N.
A wider sanctions regime is provided by the Autonomous Sanctions Act of 2011 (Cth) (the ASA), which allows the Minister for Foreign Affairs to impose sanctions (including targeted financial sanctions) on foreign individuals 'in situations of international concern.' It does not expressly permit sanctions to be imposed for cases of serious corruption, like the Global Magnitsky Act in the US. It does allow travel bans and money freezes in respect of situations of international concern, which can include the "grave repression of human rights." However, in order to sanction an individual, the Minister first needs to amend the ASA regulations by way of a legislative Instrument, Identifying the target country and the reasons for its national's designation, which might include human rights violations but not corruption. The Minister must then pass another legislature instrument if they decides to designate the particular individual under the ASA regulations. This procedure is both clumsy and repetitive.
Australia's record in using these sanctions is pathetic under Ministers from both parties. For example, Julie Bishop only named two countries whose nationals she was prepared to sanction for human rights abuses - Syria and Zimbabwe, and Australia has only imposed sanctions on seventeen individuals, all of them Syrian commanders or intelligence officers in the Assad regime. So at present the ASA cannot be used to target individuals involved in the shooting down of MH17 or in human rights abuses occurring in the AsiaPacific, such as the extra-judicial killings in the Philippines or the high-level corruption in Malaysia. In other words the ASA is only being pointed towards easy targets with no likely connection to Australia.
It is not genuinely being used as a tool to combat human rights abuse. The ASA is not fit for purpose, if its purpose is to deter corruption (which it does not expressly tackle) or deter human rights abusers, for which it is rarely used. Ironically, it is a stark example of legislation which itself abuses human rights, because it gives the Minister absolute discretion to designate people without proof that they are involved in repression and gives them no chance of contesting the merits of that designation through any transparent process. The Commonwealth Parliament's Joint Committee on Human Rights has consistently criticised the Act since its inception in 2011, drawing attention to the Minister's overweening discretionary powers and to the unfairness of the process and the lack of appeal rights. It has recommended that the Act be amended to incorporate some of the protections available in the UK Sanctions Act. ... the ASA cannot be regarded as proportionate, because it lacks effective safeguards to ensure that designation of particular individuals is not applied arbitrarily or in error, as well as the fact there is no right of a review of the designation on its merits.
Unlike the united Kingdom, which reviewed all the designations made under its Terrorism Sanctions Act and strengthened its safeguards, the Commonwealth government has never conducted a review into the ASA to ascertain whether its designations are proportionate and therefore in line with international human rights standards. It is also difficult to ascertain what information the Minister bases their decisions on when making designations under the ASA. No publicly available document exists in relation to what criteria and evidence are used when making a designation (other than what is listed in the regulations), nor is such information forthcoming. The Department of Foreign Affairs and Trade has said that it collates arange of evidence and information to inform the Minister's decision-making under the ASA, however it refuses to release such information despite multiple requests by the Committee, as well as requests under the Commonwealth FOI laws.In considering an Australian Magnitsky Act the authors comment
The ASA represents what Gillian Triggs, former President of the Australian Human Rights Commission, has been warning about for some time, namely, a creeping expansion of non-compellable and non-reviewable discretions of Commonwealth Ministers. Then Foreign Minister, Julie Bishop stated that she had no intention of introducing legislation into the Australian Parliament that would mirror or resemble the United States' Global Magnitsky Act.
Certainly, any Australian Magnitsky law should depart from some other Magnitsky legislation, such as in the US, which allows the US President to sanction individuals on merely the basis of 'credible evidence' from the US State Department and the international NGOs. It is wrong that a decision to designate an individual should be at the discretion of the Executive, whether a US President or Australian Minister. An Australian Magnitsky law should be one which respects the doctrine of the separation of powers between government, parliament and the judiciary, as well as common law rights and the international human rights regime which Australia has signed up to. Orders for sanctions on individuals should be made either by an independent quasi-judicial body, or by an independent Federal judge, after considering applications from the relevant Minister, government departments and intelligence agencies, as well as information from NGOs and affected parties and (if secrecy is not initially required) from targets themselves.
There is no doubt that in order to achieve the objective of preventing human rights abusers from enjoying their ill-gotten gains, sanctions regimes need to be flexible and applied in an effective and timely manner. The independent tribunal or Federal judge empowered to order the sanctions would hear and determine matters on their merits in a transparent process, with the target entitled to take part in proceedings should they wish to do so (at least via Skype or a local lawyer) and to put their case and their evidence before either a tribunal or a Federal judge. This model would be able to sanction individuals designated by Magnitsky laws or tribunals in other jurisdictions such as Europe, the UK, Canada and the US, and the hope is that, in time, a master list of human rights abusers would be built up, abusers effectively banished from exploiting opportunities in the democracies of the world. This will, of course, take time, and the Australian model would not automatically sanction a target of the US Global Magnitsky Act without affording a fair and transparent process. Those sanctioned under the Australian model - a decision which could severely affect their money and their movements - should have a right to appeal, and to apply subsequently for removal from the list. ...
It is important that an Australian Magnitsky law be used as a genuine force for change in the Asia-Pacific region, rather than simply reflecting the diplomatic policies of the government of the day. It could pressure governments where gross violations of human rights and corruption have occurred, and which are still said to be occurring. It could target the middle-men who permit the extra-judicial killings on behalf of Duterte, or the naval and army commanders responsible for shelling Tamils seeking shelter in the No Fire Zone at the end of the Sri Lankan Civil War in 2009. A Magnitsky law used effectively could ensure that none of the USD 1 billion allegedly funnelled by disgraced Malaysian PM Najib Razak and his cronies from a state-owned investment firm ends up in Australian financial institutions.
