BREAKING: Australia Passes US Style- Sanctions-Human Rights Law
2 December 2021
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Australian Parliament

Australia today signed a #humanrights sanctions bill similar to the US #GlobalMagnitsky law. “Human rights abusers must face consequences for their actions. I look forward to coordinating sanctions with our friends down under,” said a US Senator.

A ‘Magnitsky Act’ is a type of legislation that enables governments to impose economic sanctions against foreign individuals or entities who commit or are involved in serious human rights abuses and corruption abroad. This legislation operates extra-territorially, imposing penalties on individuals or companies, including freezing and requisitioning assets and travel bans, for acts performed outside the legislating country’s jurisdiction.

It derives its name from US laws enacted to sanction the individuals responsible for the 2009 death of Russian lawyer Sergei Magnitsky, who uncovered serious tax fraud by several Russian companies confiscated from an American financier.

The Joint Standing Committee on Foreign Affairs, Defence and Trade in Australia recommended the enactment of an Australian ‘Magnitsky Act’. This recommendation comes after eight months of hearings and contributions from many notable individuals, including human rights lawyer Amal Clooney and pre-eminent lawyer Geoffrey Robertson AO QC, who warned that failure to adopt a new human rights-specific sanctioning regime would risk Australia becoming a haven for ‘dirty money’ and ‘despots’.

What did the Committee recommend?

The Committee recommended Australian legislation closely follow the 2012 and 2016 US laws:

  • A broad definition of human rights and corruption to ensure ‘the greatest number of potential abuses’ fall within the scope of the legislation;
  • Individuals (and their immediate family and direct beneficiaries), corporate entities, state and non-state organisations can be subject to sanctions;
  • Creation of an independent body to publicly receive, consider and make recommendations regarding imposition of sanctions, which the Minister for Foreign Affairs would have to consider in their decision-making;
  • Right of reply and review of decisions by the Minister on request of a targeted or sanctioned person;
  • Publication of names of sanctioned people, the reason for their listing and an annual report on sanctions by the Foreign Minister.

Why is a ‘Magnitsky Act’ necessary?

Existing legislation is not built for purpose

Although two existing Acts deal with international sanctions, they are not built for purpose. The scope of the Charter of the United Nations Act 1945 (Cth) is extremely narrow, only permitting implementation of UN Security Council decisions. Although the Autonomous Sanctions Act 2011 (Cth) provides more discretion, it provides no mention of human rights, and the Committee found it was not being used for such purposes. Specific sanctions should be available for human rights abuses.

Australia’s role in a new global movement

Magnitsky regimes are gathering legislative and popular support across the world, including and especially, amongst Australia’s allies. Apart from the US, Canada and the UK have recently enacted Magnitsky laws and the EU is not far behind. These laws, acting extra-territorially to create a potentially global sanctions system, will reach their full potential if they are widely and consistently adopted across a majority of jurisdictions. Australia should contribute to building this new global movement.

Sanctions as an alternative tool of foreign policy

Sanctions for human rights abuses could prove an invaluable legal tool where other diplomatic efforts have failed or where international attempts at consensus, including collective sanctions, have been slow or unsuccessful. Australia’s extensive diplomatic attempts to persuade China to address human rights abuses against Uighur Muslims in the Xinjiang province, for instance, have been largely ineffective in changing China’s behaviour. The US has recently placed sanctions against Chinese entities and officials for oppression of the Uighur population and there is growing impetus in the UK for such action. Such sanctions would provide Australia with another diplomatic tool that can be used to deter states, and individual perpetrators, from engaging in human rights abuses; one that, by addressing the financial interests of perpetrators and those in their inner circle, is perhaps more persuasive than traditional diplomatic tools.