House debates

Wednesday, 9 December 2020

Committees

Foreign Affairs, Defence and Trade Joint Committee; Report

12:16 pm

Photo of Luke GoslingLuke Gosling (Solomon, Australian Labor Party) Share this | Hansard source

I commend this important and timely report to the House and note the bipartisan spirit shown on clear national interest. As my friend the member for Wills, just said, Labor has clearly set out that it supports a Magnitsky style human rights sanctions regime that could impose costs on serious human rights violators to prevent and deter impunity. This human rights sanctions regime could have two objectives: firstly, to send a strong signal to those committing human rights abuses abroad and, secondly, to defend our democratic institutions. This report makes a considered and thorough contribution to the operational policy details of how such a proposed targeted human rights sanctions regime could work in Australia. It even features a proposed bill drafted by Mr Geoffrey Robertson OAM QC, which is commendable and helpful. I congratulate the chairs and cochairs of both the Joint Standing Committee on Foreign Affairs, Defence and Trade and the Human Rights Subcommittee for this piece of work.

I'd like to go into some of the operational considerations and the complex trade-offs between human rights, foreign policy, trade and other national interests that this regime would demand of the decision-maker—the foreign minister, under these recommendations, rather than a judge or committee. To start with the basics, the defence of human rights at home and abroad is a fundamental national interest because it is so essential to who we are as a people, as Australians. Australia is committed to good international citizenship as a 'middle power', as Gareth Evans put it. Labor has a proud role in this tradition, with Doc Evatt helping shape the United Nations around liberal and democratic values. Human rights are a central part of the UN system. There are universal instruments like the Universal Periodic Review of the Human Rights Council, which puts all countries in the hot seat and under human rights scrutiny, including our nation, Australia.

Traditionally, Australia's had a track record of quiet, behind-the-scenes human rights dialogues with other countries. These mechanisms are important, but they have limitations. The proposed Magnitsky-style sanctions regime, which exists in the US, the UK, Canada and other jurisdictions, aims to target individual officials, uniformed personnel and civilians who are demonstrably responsible for serious human rights violations. That may include those who torture or kill journalists, whistleblowers, human rights watchdogs, gay rights activists or underground priests, or participate in any stage of genocide.

Shining a light on those who do great evil in the shadows is an effective and proportionate way to say, 'Never again'—not only to the death camps, but to the everyday acts of evil that build up to them. There is no-one in this parliament, I would think, who would object to the principle that these acts are abhorrent and must be opposed, as a reflection of Australia, our values and our interests. At the very least, even if we can't stop them single-handedly, we can impose costs for serious human rights violations by preventing their authors from travelling to Australia or sending their children to study, and stopping them from laundering money here.

Upholding universal human rights is a Team Australia objective, and I reconfirm Labor's support. But the devil is always in the detail. There are important considerations that this report makes very clear that we will have to weigh up, not just in the drafting of any enabling legislation, but, most importantly, in the judgement that any foreign minister of the day will have to exercise.

I'd like to briefly list some of these major considerations. One: using a hammer where another tool may be better. The old maxim 'When all you have is a hammer, everything looks like a nail' is very apt and relevant to sanctions regimes. Mr Simon Newnham, First Assistant Secretary and Chief Legal Officer of DFAT, advised the committee that sanctions will not always be the most appropriate or effective response. I quote:

Sanctions might not be effective. In certain circumstances, they may close off opportunities to positively influence a situation, and they may not be in our interests. There will be work that Australia does with other countries, with different systems and different standards, principles and values. Sometimes we work with systems that don't uphold human rights and freedoms in the same way that we do in Australia, but we do so to meet other objectives—for example, on counterterrorism, transnational crime, economic issues and so forth.

Secondly, defining how low we should go. Many submissions called for very broad definitions of what was a serious human rights violation that would merit sanctioning. Some organisations advocated for going very broad and including the lack of a free press as meeting the threshold. Others argued that corruption should be targetable. This view seems to have influenced some of the committee's comments and views on what is human rights atrocity. Corruption is a bad behaviour that can breed human rights violations, but it doesn't always. Since we're a middle power and aren't in a position to impose our values across the board, we have to be realistic and reasonable about how low we can afford to bring the threshold of this bad behaviour. And we have to remember, too, that others have the same tools at their disposal as we do, even if they use them in bad faith. DFAT's submission noted that a lower threshold would expand the cases in which sanctions could be imposed, including situations where other responses could be more appropriate.

Again, these are the considerations. The third is raising civil society's expectations. We need to be responsible and alert to the fact that a human rights sanction regime will need to be very responsibly, transparently and strictly drafted to qualify in egregious cases. The submissions to this report testified to some of the strong feelings in our proudly multicultural society about the human rights abuses in their own home countries and in those of fellow Australians' multicultural societies. There is justifiably strong feeling in our communities that we need to respect, listen to and consider very actively. But it would be irresponsible and dangerous for the fabric of our own society to politicise human rights sanctions. Saying 'Vote for me and I'll go hard on the foreign government you don't like' is not a recipe for a stable democracy but instead for disaster.

There are some calls in these submissions for human rights sanctions on Cambodia, Indonesia, Myanmar, Saudi Arabia, Hong Kong and China, or their officials, on various grounds. Some will be legitimate, proportionate and in the national interest. But others won't be. Getting that balance right presupposes strict bipartisanship to reduce the temptation for members of this place, perhaps, to politicise human rights sanctions.

The fourth consideration is double standards. There is a legitimate objection that Australia will be exposed to accusations of double standards if it doesn't apply these sanctions universally. It has not escaped attention that our existing regime sanctions Zimbabwe but not larger economies and some US allies. Yet the universal application of human rights sanctions outside the national interest test as managed by a lawyer or jury, which some submissions understandably supported, is also problematic. As the international human rights law expert Ms Amal Clooney commented:

… certainly one of the main criticisms that you always hear, is that they're selective—states will have this legislation, but they'll only use it against soft targets, or they'll only use it against states that aren't friends or who they don't need to trade with et cetera. But, on the other hand, it's understandable that a foreign minister can't come into office and, on the first day, sanction their counterparts in 100-plus countries where human rights violations might be occurring on some level.

The point is that we need to be alert to, and minimise the risk of, double standards.

I'm very glad that this report provides for very extensive safeguards to protect the human rights of alleged perpetrators, as well as their families, who are also targetable. The only way to not become like the perpetrators we fight is to never abandon justice for the sake of victory and to never try to defend the higher ground by fighting dirty, because that's not how we win. We win by the moral discernment, judgement, self-restraint, proportionality and charity we show our adversaries. (Time expired)

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