Tim Watts (Gellibrand, Australian Labor Party, Shadow Assistant Minister for Communications) Share this | Link to this | Hansard source

I rise with great pleasure to speak on this report about the adoption of an Australian Magnitsky act. I want to acknowledge the subcommittee members for their work on this, particularly the chair, the member for Menzies, and the deputy chair, the member for Paterson. I also want to acknowledge Senator Kitching, who has long been a strong advocate on this issue. There's a private member's bill on the Notice Paper in the other place to implement an Australian Magnitsky act. An Australian Magnitsky act is a much-needed law in order to demonstrate our commitment to human rights. This is a bipartisan issue that has attracted unlikely allies from both sides of the aisle. The global movement for countries to pass their own version of the United States Magnitsky act has gathered pace in the last few years. We should be right there with other countries leading the charge.

But I want to use my time today to acknowledge the history of this issue and the people in this place and outside of it who have advocated for years to get us to the point of this committee report. It all started with a Russian tax auditor named Sergei Magnitsky, who was murdered at the age of 37 after he uncovered a major fraud committed by officials within the Russian government. He'd been put on the case by Bill Browder, a British-American financier, who would go on to lead the charge for these Magnitsky laws around the world. Magnitsky and Browder did what all of us hope that we would do in the same situation—spoke up and exposed a fraud. They filed criminal complaints, hoping that the system would work. But Magnitsky was jailed for his efforts, without trial, for 11 months, and in 2009 he died in prison following several years of what can only be described as prolonged torture at the hands of Russian authorities. He was denied medical care and kept in squalid conditions. He developed major medical conditions, including gallbladder disease and pancreatitis, for which prison doctors withheld treatment as a means of coercing his actions. A report on his death said that he'd complained of worsening stomach pains for five days, and by the day of his death he was vomiting every three hours and his stomach was swollen. When they finally moved him to a medical facility, he wasn't treated; he was given a psychiatric assessment and a painkiller. He was dead 30 minutes later, having died alone in a jail cell.

Browder tracked the assets back to the US, and he lobbied US lawmakers to target those who had profited. It's in his name that the United States passed the Sergei Magnitsky Rule of Law Accountability Act, which sought to punish those personally responsible. In 2016, they took the principles of this law and made them global, with the ability to apply sanctions to any foreign officials that might have been involved in human rights abuses personally, regardless of where they occurred. This is really a story of mateship—something that we value highly as a nation. Browder took the push global and has created a worldwide movement to create laws that punish government officials involved in human rights abuses globally in the name of his mate. Browder gave up his successful career to make getting justice for his mate his life's work. Many countries have since adopted a Magnitsky act or a law similar to it, as a result of his fierce advocacy. Canada began this process in 2015, and it made it into law in 2017. It's sanctioned 70 individuals under these laws. The European Union passed a resolution in 2019 to create a Magnitsky act of its own and will soon make it law. The United Kingdom passed amendments to its existing laws in 2018, soon after leaving the European Union, and has since imposed nearly 50 sanctions on individuals, including on two Myanmar generals for their involvement in the persecution of the Rohingya people and other ethnic minorities.

I welcome the progress on this act represented by the committee report and acknowledge the work that's been done by the committee and its advocates in this place. Once we have enacted our own Magnitsky law, we must pursue a greater global commitment to human rights through the adoption of these laws. This is something that we've been talking about in this parliament for quite some time. I want to acknowledge one member who was tireless in his pursuit of this issue well before it was on the radar of many others in this place. The former member for Melbourne Ports, Michael Danby, was a strong advocate for these laws. He insisted that the parliament pay attention to this issue, and he persisted until the parliament did. He can be a pain that way, Brother Danby. He even introduced a private member's bill, which I was proud to sit in the chamber as he argued for. In his valedictory speech in April last year, where I sat next to him, he said:

I feel a longing for all the unfinished business I leave here. Although I moved a first reading of the Magnitsky Act, it is not enshrined in our law. The government has come to favour having a legislative device for pushing back against corruption and human rights abuses by authoritarian countries. I say to this parliament that Magnitsky would allow us—like the US, Canada and the UK—to tell states like Russia that you can't kill 38 Australians and get away with it. Unfortunately we seem to have run out of time.

Well, comrade, we have picked up the torch and we will carry on your work in this parliament.

I know that Michael Danby would be happy to see us debating this issue, but he'd probably be asking why we haven't already implemented it. Labor's shadow foreign affairs spokesman made clear Labor's position in July this year, supporting the introduction of Australian Magnitsky law, 'to send a strong signal to those committing human rights abuses abroad and to defend our democratic institutions.' The shadow foreign affairs minister also said that it must be enacted soon, saying:

While the world is rightly focused on managing the pandemic, we've continued to see human rights abuses. This is why the UK has flagged targeted sanctions under its recently passed Magnitsky laws. Australia has existing sanctions mechanisms, and an Australian Magnitsky Act would allow for more explicit targeting of human rights and corruption abuses.

Australia has an important role to play here. The US led the charge. The UK has done its bit, Canada has done its bit and the European Union is almost there. We should be there with them. If we don't pass a Magnitsky Act, we risk becoming a safe haven in the developed world for human rights violators.

The committee's report notes Geoffrey Robertson QC's observation that 'although human rights abuses can be listed as designating criteria for sanctioning, under Australia’s current regime, there is little scope for sanctioning an individual for corruption'. It is a growing trend, as the inquiry notes, that perpetrators of human rights abuses and corruption take advantage of our globalised financial system to secure their assets in countries like Australia—and we've seen this in Melbourne. Australia is an attractive place for this, and we must send a strong message that we won't allow our country to become a haven for those that perpetrate human rights abuses and corruption, particularly in our own region.

It's important that we send a strong message through targeted sanctions, such as travel bans and asset freezes, which a Magnitsky Act would enable. As Bill Browder notes:

The global Magnitsky sanctions will issue a stark warning to human rights abusers and kleptocrats around the world that no longer will they be able to commit atrocities with complete impunity. Targeted sanctions against those involved in corruption and human rights abuse will provide an immediate, tangible consequence which directly affects an individual where it hurts them the most—in their pocket. Leaders of corrupt regimes will know they are no longer able to protect their ill-gotten gains abroad, or flee to their lavish properties in foreign countries. Totalitarian dictatorships ultimately fall, and when they do, the Global Magnitsky Act will prevent those who have committed human rights abuses from claiming asylum almost anywhere in the world.

The committee notes in its report that countries that have adopted these laws are seeing success, noting:

… there are indications of early success in applying targeted sanctions to curtail options for enjoyment and freedoms of human rights abusers and beneficiaries of corruption. Australia’s imposition of travel bans and asset freezes could apply some level of consequences in cases where they were otherwise lacking.

Australia should be a leader in our region and on the global scale in demonstrating our commitment to human rights. An Australian Magnitsky Act would be an important step in this process. An Australian Magnitsky Act would put human rights abusers and corrupt government officials in our region on notice that Australia was not their bolthole. That's why we must continue full steam ahead to deliver an Australian Magnitsky Act.

I thank all of the committee members for their work on this review, and I thank all of the parliamentarians from both sides of the aisle who have campaigned for and championed this issue to get the debate to where it is now. I look forward to the parliament acting on this review and progressing it in the future.

Luke Gosling (Solomon, Australian Labor Party) Share this | Link to 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)

Julian Hill (Bruce, Australian Labor Party) Share this | Link to this | Hansard source

This is a landmark report. A lot of reports come here for little remarks—'The place where good speeches go to die,' I once said of the Federation Chamber. But this is a really important report—the culmination of a year of work. It calls for an overhaul of Australia's sanctions regime, which has proven to be not adequate to protect human rights.

The proposed Magnitsky legislation will provide a real and targeted response and bring us into line with other strong human rights protecting states. It will provide additional mechanisms for the Australian government to target and sanction individuals and their beneficiaries, which means their families, where relevant, who've committed serious human rights abuses or are guilty of serious corruption perpetrated in any country across the world. The kinds of sanctions that would be available under these new laws would mean visa and travel restrictions, banning people from coming to Australia, limiting access to their assets in Australia and restricting access to Australia's financial system.

These Magnitsky-style sanctions will complement Australia's existing sanctions regime, including application of the UN Security Council sanctions and existing Australian autonomous sanctions. Importantly, they'll be applied to retrospective conduct, which was a point that we considered carefully, because grave human rights violations whether perpetrated five days ago, five years ago or 50 years ago should never be forgotten. The Minister for Foreign Affairs is proposed to have the final say as to whether a person would be subjected to sanctions. It's important to understand that decisions by the minister to sanction would be subject to the broadest range of national interest considerations. In plain English, the truth is not every bad guy or bad girl is going to make the list, because, ultimately, a decision to sanction has to be in our national interest in the broadest sense.

There'll also be scope under these proposals for the creation of a public watchlist, which would effectively be a name-and-shame list for those who are suspected of being engaged in grave human rights abuses or serious corruption but are not necessarily restricted at that time, about who enough evidence hasn't been gathered or where it may be thought that the best thing in the national interest would be to send a deterrence message without actually taking that final step to sanction.

Magnitsky laws, as they're called, at their core are about lighting a candle to shed light on the darkness and protect the most vulnerable in the community across the world. We may ask, 'Why is this report so significant at this time?' Why do I sound so excited about an obscure committee report?' It's because there's a global movement underway that's been accelerating in the last few years and, quite simply, Australia must be part of that movement. We must never underestimate the value of bringing Australia into line with other world-leading states in enacting US Magnitsky-style legislation. These laws will ensure that human rights are not merely ideals that we speak about but that we follow through on with real action.

That's the key here: tangible and effective deterrence. The global experience, which we heard much of through the inquiry, is that deterrence is a powerful force in preventing human rights abuses and corruption. It doesn't work in all cases—that's also clear—and these laws don't stop all bad behaviour, but they can help to deter and moderate abuses if the perpetrators know right up-front—and maybe a name-and-shame list would also help deter—that they risk exclusion from the global financial system, that they risk the loss of their assets, which they may have accumulated in developed Western countries and nice European capitals from ill-gotten gains, and that their beneficiaries and their families would also be affected and prevented from entering our country. Importantly their conduct will be exposed. The message from these laws that we have seen in other states that have adopted them is clear: you will not get away with gross human rights violations and serious corruption.

Those who suffer from human rights abuses are disproportionately also the victims of corruption. There is an interplay there, so these laws go further in some countries. We had a look at best practice around the world. We need to ensure that investigating, reporting and prosecuting corruption forms a significant part of any robust human rights system. It's important to stress that the development of this legislation is not about targeting particular countries. There's been a lot of media speculation. Different media outlets name this country or that country. But it's important to understand that that's what's different about these proposed sanctions: they're not about targeting a country; they're about targeting senior individuals who have individually perpetrated serious human rights abuses.

Human rights atrocities occur across the globe, and we need a more coordinated global response. There have been years of research by tireless individuals and organisations on the ground. They do incredible work, brave work. They get targeted—murdered in many of these countries—for standing up for human rights. They're on the ground daily fighting for human rights. They show us that the drivers of human rights atrocities are widespread and incredibly complex, so the responses globally must be considered and well targeted.

In 1948—a long time ago now—the global community joined together and created the Universal Declaration of Human Rights. Since then states working collectively in various formations, not always universally, have endeavoured to find many different ways to try and counter the gross human rights violations that the world has seen and sadly continues to see. The sorts of tools available to governments or states acting collectively are things like enforcing arms embargoes, boycotts, penalising the perpetrating state through trade sanctions and other diplomatic isolating measures.

Australia of course implements all of the United Nations Security Council sanctions, but we also have our Australian autonomous sanctions that are in place right now for states such as Syria, North Korea, the former federal republic of Yugoslavia and Zimbabwe. These remedies are variable in their degree of effectiveness because of the political and human complexities involved. Given this, I'll record the fact that I'm very grateful, having participated in most of the hearings, to all of those who gave evidence to the inquiry and who shared their expertise that we were able to draw on. It's an incredibly complex area.

I'd also like to record a thanks to DFAT. The committee actually disagreed with DFAT's proposition that we don't need these laws, but they were measured, they were reasoned, they were well argued, and they were also respectful. They understood I think—they could read the tea leaves—that we were going in a different direction, and they were still professional, they were helpful, they answered our questions and they were thoughtful. I do wish that some other departments would follow their example. The way that DFAT present and support the committee is exemplary, and I think it makes our work better and makes the report more sensible when we have the benefit of their advice.

This was also a truly collaborative and bipartisan process. I'd like to thank the chair, the member for Menzies, for how he conducted the inquiry. He's a little too politically conservative for my taste, but he's an excellent chair and a good, experienced member to work with. He lets everyone have their says and listens to all views.

I also give a special thanks to the diaspora communities from so many migrant communities across Australia who've fought for these laws for such a long time and for some of whom appearing at the inquiry took actual personal risk. They were worried about the retribution against their friends and their family in their home countries, and we heard some of those stories in camera as well. That's a serious issue. It's not something we should take lightly—that Australian citizens should feel restricted from coming to their national parliament and sharing their ideas and views because of what might happen in foreign countries. So the knowledge and the voices of the diaspora communities will remain key in the future.

Importantly, the report explicitly acknowledges that protecting journalists and human rights defenders is equally important. We talked about media freedom. It was actually Amal Clooney who beamed in from where she was—Los Angeles at that point, I think—and so eloquently explained to us that, as to media freedoms, the systemic shutdown of media and journalists is a human rights abuse and explained to us how authoritarian states are using shutdowns of the internet and repressive shutdowns of the media to further human rights abuses.

Our media freedom is under threat like never before, and we've seen this kind of oppression manifest in places like Turkey, China, Hong Kong, the Russian federation, Cambodia and Egypt, and also—I say, shamefully—in our key security partner and largest foreign investor, the United States, where, shamefully, our own citizen Julian Assange is facing life imprisonment in the United States for publishing evidence of US war crimes. The risk to liberal democracies, the countries who we think we're just like, should not be underestimated. If journalists are unable to do their jobs, it will affect all of us as a global community.

Journalists, as well as human rights, democracy, labour and environmental activists remain at great risk in places like Cambodia. In fact, Cambodia provides us with an operational example of the potential application of the proposed Magnitsky legislation, because, for many years, under the gangster regime of Prime Minister Hun Sen, human rights have been under threat, and Cambodian CPP elites stand accused of enormous and systemic corruption. Hun Sen and his family and cronies make themselves rich at the expense of the Cambodian people, taking their land, attacking their labour rights, suppressing dissent and destroying any pretence of being a democracy. At the last election, Hun Sen won 125 seats out of 125 seats, and the situation under COVID-19 is getting worse.

Last month, the UN human rights expert on Cambodia issued concerns about the mass trial of 113 individuals on charges of conspiracy and incitement to create serious chaos to social security. Last month, 57—Deputy Speaker, I've got a page to finish—a good page—but I didn't have the clock, so—

David Gillespie (Lyne, National Party) Share this | Link to this | Hansard source

I'm acknowledging that the clock would have misled the member. I'll allow another slight overrun of the time frame.

Julian Hill (Bruce, Australian Labor Party) Share this | Link to this | Hansard source

Thank you. Last month, 57 human rights organisations called on the Cambodian government to stop its harassment and intimidation of independent media outlets and their journalists. Testimony to the inquiry from brave members of the Cambodian diaspora community described these threats, including threats against Australian citizens here and money-laundering by Cambodian officials buying assets in Australia. When Human Rights Watch issued their so-called dirty dozen a few years ago, the top generals and cronies in the regime were found guilty of human rights abuses, and Magnitsky laws will give us new tools to deter and shine light on this behaviour by the corrupt Cambodian elite and ensure Australia provides no shelter to these gangsters.

In closing, I'll just read two quotes. Victorian Labor MP and my friend, Meng Heang Tak, said in his testimony to the inquiry:

… it's about time that Australia played a role in curbing this regime. Given our geographic location, if we don't have a Magnitsky or we don't have enough measures to curb this interference in Australia, Australia is a very good place for the ruling party, for the elite, to park their assets.

So I welcome the report and I commend it to the House. Magnitsky laws will send a strong message of support to the victims and the survivors that states across the world are joining together and taking stronger action to combat human rights violations. I'll end with a quote from Mr Hemara In's testimony. Hemara is also a friend of mine. He lives in my electorate. And he is one of those 113 Cambodians around the world who've been charged in recent weeks by the Hun Sen government and summoned to appear in court in Phnom Penh for allegedly inciting unrest. Unbelievable! Hemara said that, if Australia were to adopt a Magnitsky style targeted sanctions regime, it would send:

… hope to ordinary people that the international community understands their plight and is willing to stand by them and to help them. It's a message of hope.

So, by enacting Magnitsky legislation in Australia, we, as a country, can add our voice to that message of hope. I thank you, Deputy Speaker, and I thank the government for that indulgence.

Debate adjourned.