Last week's Criminality, corruption and impunity: Should Australia join the Global Magnitsky movement? An inquiry into targeted sanctions to address human rights abuses report by the Joint Standing Committee on Foreign Affairs, Defence and Trade - foreshadowed here - features the following recommendations -
1 the Australian Government enact stand alone targeted sanctions legislation to address human rights violations and corruption, similar to the United States’ Magnitsky Act 2012.
2 the legislation should include a preamble, which would set out the broad purposes and general principles of the Act.
3 the range of conduct that may be sanctioned should include serious human rights abuse and serious corruption.
4 the new targeted sanctions legislation should apply to ‘serious human rights abuses’ with further guidance on thresholds and applicable conduct provided in the preamble.
5 the preamble acknowledge the importance of maintaining journalist and human rights defenders’ human rights and expressly state that systematic extrajudicial actions that intend to limit media freedom can be considered human rights abuses.
6 the legislation should name the range of conduct which can be sanctioned as ‘Magnitsky conduct’.
7 sanctions should be applicable to the immediate family and direct beneficiaries of human rights abusers.
8 sanctions be applicable to all entities, including natural persons, corporate entities and both state and non-state organisations.
9 sanctions be applicable to associated entities, broadly defined.
10 the new targeted sanctions legislation should not apply to Australian citizens because they are subject to legislation with similar, if not stronger, consequences. This issue should be re-examined as part of the 3-yearly review.
11 the new targeted sanctions legislation be applicable to conduct that has occurred prior to enactment of the legislation.
12 an independent advisory body be constituted to receive nominations for sanctions targets, consider them and make recommendations to the decision maker.
13 the structure of the independent advisory body should be set out in regulations, and should include the ability to conduct its inquiry in public.
14 the new legislation should require the decision maker to consider recommendations by the advisory body and give reasons for any decision not to adopt a recommendation by the advisory body.
15 the decision maker should be able to receive nominations from any source.
16 the legislation, or regulations under the legislation, set out processes to allow Australian authorities to work with other jurisdictions and their sanctions regimes.
17 the Minister for Foreign Affairs be the decision maker.
18 the Minister for Foreign Affairs should be required to consult with the Attorney-General before making a decision.
19 the legislation include a requirement to give the targeted person a right of reply, and a requirement for the Minister to consider this, before imposing sanctions.
20 the Minister for Foreign Affairs should have broad discretion as to whether or not to impose sanctions. This would include the ability to remove or vary sanctions.
21 the legislation allow for a ‘watch list’ of people being considered for sanctioning. Inclusion on a watch list should be for a fixed time period, after which a person must either be sanctioned or removed from the list. The watch list should be public.
22 the evidentiary standard for a decision should be the balance of probabilities.
23 the legislation require the publication of the names of sanctioned people and the reasons for their listing. This includes all decisions to remove or vary sanctions.
24 the legislation require the Foreign Minister to publish an annual report to Parliament advising of sanctions.
25 the Foreign Minister’s annual report into the sanctions should stand referred to the JSCFADT for inquiry .
26 there be limited exemptions from including information on the public register, watch list or annual report for reasons of national security or criminal investigations.
27 the legislation include a right for a sanctioned person to request a review of decision. The Minister should be required to conduct a review on request, although the regulations may limit the obligation to conduct reviews.
28 argeted sanctions legislation be reviewed by the government three years after commencement.
29 the sanctions include visa / travel restrictions, limit access to assets, and restrict access to Australia’s financial systems.
30 the sanctions, to the extent possible, be implemented using existing processes and legislative schemes.
31 the new sanctions regime be accompanied by a public diplomacy strategy to provide guidance to those affected, including Australian businesses.
32 the Department of Foreign Affairs and Trade should be given additional resources to implement the sanctions regime. Other departments required to contribute to implementation should also be allocated dedicated resourcing for the task.
33 the long title of the legislation should include ‘Magnitsky’ to emphasise links with the Global Magnitsky movement.
