Senate debates

Monday, 9 August 2021


Joint Standing Committee on Foreign Affairs, Defence and Trade; Government Response to Report

5:29 pm

Photo of Concetta Fierravanti-WellsConcetta Fierravanti-Wells (NSW, Liberal Party) Share this | | Hansard source

[by video link] I want to take note of the government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade report Criminality, corruption and impunity: should Australia join the global Magnitsky movement?from the inquiry into targeted sanctions to address human rights abuses.

Photo of Claire ChandlerClaire Chandler (Tasmania, Liberal Party) Share this | | Hansard source

Senator Brockman has sought leave for Senator Fierravanti-Wells to take note of the report remotely. Leave is granted.

Photo of Concetta Fierravanti-WellsConcetta Fierravanti-Wells (NSW, Liberal Party) Share this | | Hansard source

by leave—As a longstanding advocate for the enactment of Magnitsky laws and the sanctions regime, I welcome today's statement and look forward to reading the full details of the government's response. These laws are important to deal with perpetrators of human rights abuse and corruption by those who transfer assets to use them in countries which are usually democratic and financially stable countries.

Following the death of lawyer Sergei Magnitsky, who was imprisoned and killed after exposing Russian treasury fraud, billionaire hedge fund manager and anticorruption activist, Bill Browder, has focused the efforts of international human rights experts and frontline organisations to advocate for targeted sanctions to be introduced, effecting tangible consequences for those individuals and their beneficiaries affected by those human rights abuses.

Magnitsky legislation has been introduced in various countries, and a recent report by the Joint Standing Committee on Foreign Affairs, Defence and Trade, of which I am a member, has recommended its enactment in Australia. In other countries, introducing targeted sanctions legislation has allowed governments to tackle this issue, using travel bans and asset seizure to prevent perpetrators from enjoying the proceeds of their crimes with impunity. Our report recommended that Australia should enact a world-leading law to apply targeted sanctions to perpetrators of serious human rights abuse and corruption to align Australia with a global movement seeking to limit opportunities for human rights abusers, corrupt officials and their beneficiaries to enjoy the proceeds of their abuses. The recommendations were aimed at strengthening our commitment to protect the human rights of people around the world, including banning entry of perpetrators to Australia and the capacity to seize assets. The challenge is that we cannot control whether perpetrators are brought to justice within their home country. But targeted sanctions legislation will make Australian places and institutions off-limits to people who have profited from unconscionable conduct. In short, a targeted sanctions regime for serious human rights abuse and corruption will close the gap of opportunity for perpetrators and stop Australia becoming a safe haven for these people.

The report of the committee followed a wide-ranging inquiry which commenced in 2019 and incorporated submissions from over 160 individuals and organisations from around the world. During the inquiry, the subcommittee heard evidence from a range of expert witnesses, including Geoffrey Robertson AO QC, who not only gave evidence in the submission and appeared as a witness but also provided a draft bill which could be used to guide implementation of recommendations in the committee's report.

Cooperation with like-minded nations on this matter has the potential to protect the human rights of countless citizens around the world. Australia is an attractive destination for investment and lifestyle, and we have the opportunity to reduce incentives for corruption and unscrupulous human rights abuses. Respect for individuals and the freedoms that underpin the Universal Declaration of Human Rights lie at the heart of the values that have enabled the global rules based order to bring increased security and prosperity to the people of so many nations in recent decades. But enacting Magnitsky laws in Australia alone is not sufficient; law enforcement authorities have to be properly resourced to undertake investigations and to implement a sanctions regime.

In an article in The Australian of 30 December 2020 titled 'We risk being a dirty money haven', Mr Robertson criticised the AFP over its failure to probe a suspected Russian mafia money-laundering operation using Australian banks, saying 'Australia risks becoming known as a soft touch for foreign criminals.' The Australian revealed that both the AFP and AUSTRAC had declined to pursue detailed evidence of the alleged crimes handed to it by billionaire human rights activist, Bill Browder, more than two years ago because of the significant resources required to investigate the matter relative to other investigations and proceedings. Mr Robertson is critical of what he alleges is a failure to do their duty and ignoring what he describes as 'probably the most momentous heist in history'. The article refers to A$4.6 million transferred into Australian banks believed to be part of a US$230 million fraud on the Russian treasury. Bank records purportedly showed that the money was paid into 11 Australian accounts from foreign accounts that received the proceeds of the fraud. I and other colleagues from the committee called upon authorities to investigate Mr Browder's evidence.

However, I also made another important point; namely, that the enactment of Magnitsky laws in Australia alone was not sufficient. Law enforcement authorities had to be properly resourced to undertake investigations and implement the sanctions regime. Indeed, it is a matter which I reinforced in a speech to the Senate on 4 February this year on the tabling of the Senate Foreign Affairs, Defence and Trade References Committee report on issues facing diaspora communities in Australia, where we also recommended the enactment of Magnitsky legislation and encouraged the government to do so as soon as possible. I stressed at the time that, if we were going to enact such legislation, we have to make sure that the agencies with the powers to enforce the legislation are adequately resourced. My speech followed the unfortunate events over the Christmas vacation period with AUSTRAC, regarding the issue of the transfer of Vatican funds. If that's the sort of basic error that an organisation like AUSTRAC was making, I think that we have to take a very serious look to ensure that all of our agencies are up to speed to be able to undertake the necessary work to enforce the regime. Having said that, the failure by the AFP and AUSTRAC to pursue the Russian money-laundering investigations reinforces my point. I have full confidence that, properly resourced, the AFP Commissioner, Reece Kershaw, and his team would properly and fully investigate the matter and provide the leadership for other agencies to cooperate and investigate what are extremely complex matters.

I conclude by saying that I welcome this statement. It is overdue, but I am pleased to see the leviathan ship of state is slowly moving. We now have to demonstrate the political fortitude necessary to pursue the perpetrators of human rights abuses and corruptions, irrespective of where they come from. Thank you.

5:38 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

[by video link] After eight months and two Senate orders, it's great to finally see a response from the government to the report of the Joint Standing Committee of Foreign Affairs, Defence and Trade, Criminality, corruption and impunity: should Australia join the Global Magnitsky movement? I note this is only a response to the report. After eight months, we are still yet to see actual legislation that would implement the recommendations that are outlined in this response. We will of course be scrutinising that legislation very closely once we have it and will respond in more detail then.

I want to highlight a few of the initial concerns that have been raised by human rights groups in relation to the government's response and what we know about it so far. Rawan Arraf, from the Australian Centre for International Justice, has raised concerns about the government's decision to amend the existing Autonomous Sanctions Act rather than introducing standalone Magnitsky legislation. She said:

The government has a real opportunity to introduce a stand-alone, targeted, human-rights sanctions act. However, it wants to amend the clunky Autonomous Sanctions Act, which even the parliamentary committee agreed was ineffective.

Save the Children said it was 'a step in the right direction but falls short', and, similarly, Human Rights Watch said there are further steps Australia can take to strengthen this proposal. From our initial reading, we think that there are some areas where the government should be going further, echoing those concerns from the human rights groups and, in fact, responding and supporting the recommendations that our cross-party unanimous consensus report put to government. Given that the committee report explicitly recommended standalone targeted sanctions legislation to address human rights violations and corruptions, it's concerning to see a proposal to amend the existing framework. There was a lot of evidence that was presented to the committee that resulted in that recommendation—that we needed a standalone targeted sanctions legislation framework.

Similarly, I am very concerned that the government response is rejecting recommendations 12 to 14 of the committee report for an independent body to oversee recommendations as to who is sanctioned. I'll go through those recommendations. Recommendation 12: the committee recommended that an independent advisory body be constituted to receive nominations for sanctions targets, consider them and make recommendations to the decision-maker. Recommendation 13 recommended that the structure of the independent advisory body should be set out in regulations and should include the ability to conduct its inquiry in public, which is incredibly important for transparency of a sanctions regime. Recommendation 14 recommended that 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. In rejecting these recommendations, it doesn't move us very much further along than where we are currently with the existing autonomous sanctions regimes.

I want to move to the case of Myanmar. We have an autonomous sanctions regime that applies to Myanmar, but we've got the government refusing to apply targeted sanctions to Myanmar and we have no transparency about why that is the case, despite the fact that the UK, the US, Canada and the European Union all imposed targeted sanctions on the leaders of the military coup in Myanmar at the beginning of this year. We have a foreign minister who is basically saying it's not in Australia's national interest, without giving us any reasoning as to why that's the case. Having in place the sort of sanctions regime that is outlined in our report would open this up and create transparency for everyone, enabling them to see the recommendations of experts and know who they consider should be sanctioned. Of course, at the end of the day, it's up to the foreign minister and the government to decide who to sanction, but this would shine a spotlight on the process and allow us to move further along than the very frustrating situation we have in Myanmar at the moment.

Frankly, if we only have changes to our sanctions regimes as outlined in the government's response to this report, it's not going to move us any further at all for deeply distressing situations like in Myanmar, where the case for Australia applying targeted sanctions is so, so strong—the most awful and egregious human rights abuses are being conducted by the military junta in Myanmar, and citizens are being killed on the streets. Yet Australia is not willing, at the moment, to sanction these people. We're not willing to say, 'You are not welcome here.' We're not willing to say, 'Your funds aren't welcome here.' We are not willing to say that family members who are benefitting from the coup are not welcome here. These are actions that we can take. These are the types of actions that are outlined in Magnitsky legislation, as is being developed and implemented all around the world. This matters because human rights matter, and what is going on in Myanmar matters so much.

I want to take you to the situation with regard to COVID in Myanmar at the moment. Recent media coverage has described how the military junta are basically using COVID as a biological weapon. They have weaponised COVID. There was an article in the ABC online just a week or so ago that talked about how the 'military junta has clamped down on the sale of oxygen cylinders, forcing thousands to queue for hours, sometimes in defiance of lockdown orders, at times drawing a violent response from troops.' Soldiers opened fire to disperse a line of people queuing to buy oxygen in Yangon.

Myanmar activist groups and doctors say that they've documented more than 200 attacks on health workers and facilities that have left at least 17 people dead, and they estimate that more than 400 arrest warrants have been issued for physicians who have taken part in the civil disobedience movement. One doctor working in a remote town in Myanmar said that he was desperately searching for more oxygen supplies, as the medical centre he worked at was filling up with COVID-19 patients:

'We are trying to get oxygen cylinders every day but it is hard,' he told the ABC.

'The military are trying to take the cylinders from some plants because their first priority is for army families and then second the military hospitals.'

Another doctor told the ABC that soldiers went straight to a local plant and seized hundreds of cylinders, which were then hoarded for military families or sent to military facilities. He said that people are staying home, but they cannot get oxygen at home, so they are getting very sick. 'They are either getting better or they die,' he said. Another medic told the ABC:

… the junta was happy to let the virus rip through areas of the country which it believed were hostile to the military regime.

'They [the army] are killing us,' …

It is this sort of appalling behaviour by regimes like the military junta in Myanmar that Australia has the ability to address through a properly constructed, powerful Magnitsky-style legislative framework.

As I said, we will certainly scrutinise the legislation that was foreshadowed in the government's response to us on Thursday, and we welcome the long-delayed response to our committee report. But we call upon the government to do more: take the responsibility that Australia can take to have a regime that allows us to apply targeted sanctions and that has the transparency and independence to enable us to apply those targeted sanctions so that we can use the power that we have to address egregious human rights abuses, such as those that we are seeing in Myanmar, as efficiently and effectively as possible.

5:44 pm

Photo of Tim AyresTim Ayres (NSW, Australian Labor Party) Share this | | Hansard source

[by video link] Labor has been committed to Magnitsky-style legislation for some years, so we welcomed the committee's report, and I want to make some comments about the committee's report and the government response to it. Senator Wong, Labor's shadow spokesperson for foreign affairs, has been a very clear and public advocate for this kind of approach. It is increasingly being adopted around the world. I note that the United Kingdom, with its Magnitsky-style legislation, has scores of current sanctions on foot in countries as diverse as Saudi Arabia, Myanmar, Russia and North Korea.

Labor's support for this kind of reform is consistent with our proud history of support for multilateralism and human rights. It was HV Evatt who was at the formation of the United Nations and the drafting of the Universal Declaration on Human Rights. It was the Whitlam government's support for international human rights agreements, the International Convention on the Elimination of All Forms of Racial Discrimination, the nuclear non-proliferation treaty, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These are all profound achievements that have contributed much to the global architecture that advances human rights. Then there was the leadership of Bob Hawke, as Prime Minister, in opposing the nasty, vicious apartheid regime in South Africa—against some opposition from this parliament, I have to say—and notably accepting Chinese students in the wake of the Tiananmen Square massacre in 1989. We on this side have a consistency of approach on these issues.

Magnitsky-style legislation would be a powerful tool to advance human rights. The need for such a framework is clear. As has been made very clear, there are real weaknesses in the effectiveness of sanctions directed at an entire state and substantial limitations in terms of using domestic criminal law regimes to try and prosecute these kinds of abuses. By focusing sanctions on the perpetrators of human rights abuses, we can target bad actors without oppressing or punishing the people they oppress. By using these powers in concert with allies, the international community and international institutions, we can actually be effective. These changes should drive a deeper engagement across these multilateral institutions and mean that Australia can be part of an effective response to human rights abuses overseas.

I want to commend those senators who've engaged on the committee. This report has been the product of quite some cross-party cooperation and endeavour.

That said, it has taken far too long for the Morrison government to come to the conclusion, or the set of conclusions, that it has on the committee report. The government has dragged its feet, even as core members of the government's representation on this committee have been calling publicly for this kind of reform. It's like everything that the Morrison government does: words but no action. It has been dragged to this set of conclusions, with no apparent explanation for its reticence.

I am disappointed that the government has not supported all of the recommendations of the committee. Recommendations 12, 13 and 14—relating to the establishment of an independent advisory body that would receive and consider nominations for these sanctions and make recommendations to the decision-maker—would lend a lot of legitimacy to this kind of reform. While Labor supports ministerial discretion, an independent body would ensure accountability and transparency in the implementation of these powers, and consistency in international affairs confers legitimacy. Similarly, the refusal to adopt a watchlist also hampers consistency, accountability and transparency.

I also note the reactions of some human rights organisations to the government's decision to amend the current act rather than introduce a new, fit-for-purpose act. The Australian Centre for International Justice has said:

The government has a real opportunity to introduce a stand-alone, targeted, human-rights sanctions act. However, it wants to amend the clunky Autonomous Sanctions Act, which even the parliamentary committee agreed was ineffective.

Save the Children has said that the government's proposal is 'a step in the right direction, but falls short of what is needed,' and that:

Our sanctions regime must act as a deterrence to those who would target schools and hospitals in armed conflict …

However, narrowing the human rights criteria, as outlined in the Government's response, may not cover such violations of international humanitarian law.

We have to be a leader in Australia on human rights. It is critical that we understand that, as Keating famously said, we get our security in our region, not from our region. The creation of regional bodies, such as ASEAN and APEC, is fundamental to our prosperity and to our security, but they are also important vehicles for advancing human rights. Our security ultimately rests on establishing a common commitment across our region.

I want to make a couple of comments about consistency, and I want to make a couple of comments about multilateralism. Some of the advocates for this type of legislation have couched it in Manichean terms of good versus evil across the globe, and there are some terrible things that happen around the world. The strength of the Magnitsky legislation approach is that it deals with the behaviour and deals with it consistently. It gives the government the option of proportional sanctions on specific human rights abuses. That requires global cooperation and a consistency of approach. When I reflect on some of the human rights abuses that have occurred around the world, I reflect upon, for example, many of the Chilean emigres who I grew up with, particularly in the labour movement: young people who had fled to Australia, their colleagues at university and in human rights organisations having been murdered by the Pinochet regime. I reflect on people like Lina Cabaero, a Sydney resident and a Filipino emigre, who died this week. She was a human rights activist in the Philippines who fled the Marcos regime. All of these kinds of human rights abuses should be targeted equally and effectively, and we should be using Magnitsky style reforms to improve accountability and to lift international human rights standards. Consistency means that people who have committed or who propose to commit human rights abuses know that the sanctions regime will be enacted not because of who they are or because there is some national interest or agenda being pursued but because of what they have done. That is very important for conferring legitimacy.

The second thing is, of course, that this requires multilateralism and more countries engaging with this kind of approach—more cooperation across the region, more investment in relationships in the region and more endeavour in terms of our international affairs, not less. Finally, I'd just say that I heard Senator Rice speak in relation to events in Myanmar. I think that one of the early tests of the effectiveness of this kind of legislative reform will be whether or not sanctions are effected against the leaders of the repressive regime that has done so much damage to the people of Myanmar, that has done so much to destabilise our region and that has so brutally repressed human rights. Australia and other countries in the region have invested much in the restoration of democratic rights in Myanmar. We have seen them be torn down, and the proponents of that kind of action must be early targets of Magnitsky style legislation when this government finally gets around to implementing reform. I seek leave to continue my remarks later.

Leave granted; debate adjourned.