Wednesday, 24 November 2021
Autonomous Sanctions Amendment (Thematic Sanctions) Bill 2021; Second Reading
I table the explanatory memorandum relating to the bill and move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
The Government will reform Australia's 2011 autonomous sanctions framework through the Autonomous Sanctions (Thematic Sanctions) Amendment Bill 2021, and the Autonomous Sanctions (Thematic Sanctions) Amendment Regulations 2021. Thiswill enable the listing of individuals and entities responsible for, or complicit in, egregious conduct, including malicious cyber activity, serious human rights abuses and violations, and serious corruption.
This reform responds to the Joint Standing Committee on Foreign Affairs, Defence and Trade's (JSCFADT) inquiry into the use of sanctions to target human rights abuses and violations tabled on 7 December 2020, to which the Government responded on 5 August 2021.
With this reform, Australia introduces Magnitsky-style sanctions. The Magnitsky movement was inspired by Sergei Magnitsky, a Russian lawyer who exposed fraud committed by Russian government officials, but was consequently arrested and imprisoned. He was subjected to degrading treatment and tortured, and he died in custody on 16 November 2009.
Through the advocacy of Bill Browder, whose firm Hermitage Capital Management Mr Magnitsky was advising, the US Congress in 2012 passed the Magnitsky Act, banning travel and freezing assets of those Russian officials responsible. From 2016, countries including the US, Canada, EU and UK, began to create or update their respective sanctions frameworks to enable perpetrators of egregious conduct to be sanctioned in a more timely way, no matter where the conduct occurs. With this debate gathering momentum internationally, I referred the matter for inquiry by the Joint Standing Committee on Foreign Affairs, Defence and Trade in 2019.
Autonomous sanctions can be used as an important tool of statecraft to respond to the most egregious situations of international concern, when in our national interest. They are highly targeted measures, designed to influence, deter and impose costs on the perpetrators, while minimising the impact on the general population.
Autonomous sanctions are distinguished from sanctions imposed by the UN Security Council and implemented by UN Member States pursuant to international obligations. Australia uses autonomous sanctions in egregious situations of international concern which are not covered by UN Security Council sanctions, or to supplement sanctions imposed by the UN Security Council.
Australia has a proud history of promoting and protecting human rights globally, supporting the international rules-based order, and acting for the peace and security of the international community. We have used our existing country-specific autonomous sanctions regimes to those ends. These include human rights violations in Zimbabwe and Syria, and Russian threats to the sovereignty and territorial integrity of Ukraine.
The Bill expands Australia's Autonomous Sanctions Act 2011 by creating a framework to establish new thematic sanctions regimes, which will allow Australia to list perpetrators of the most egregious relevant conduct of international concern, wherever and whenever such conduct occurs.
The Government recognises the importance of denying the perpetrators and beneficiaries of egregious acts from accessing our economy and benefiting from the freedoms our democracy allows. Positioning Australia to act more quickly to freeze the funds of perpetrators and beneficiaries, and to prevent them from travelling here, will ensure that we do not become an isolated, attractive safe haven for such people and entities, and their ill-gotten gains.
An increasing number of comparatively attractive economies have joined the "Magnitsky movement", and this bill is timely for Australia. This will also allow us to act more swiftly with key like-minded sanctions partners, including the United States, the United Kingdom, and Canada, where it is in the national interest.
As sanctions are a foreign policy tool it is both appropriate, and in line with our existing autonomous sanctions framework, that the power to impose, remove or vary thematic sanctions rests with the Minister for Foreign Affairs.
Prior to making a thematic sanctions listing decision, the Minister for Foreign Affairs will be required to consult and obtain the agreement of the Attorney-General, as First Law Officer of the Commonwealth. The Minister for Foreign Affairs must also consult with any other relevant Ministers. This decision-making process ensures that thematic sanctions listings decisions take account of all relevant foreign policy and other national interest considerations.
The Bill sets out an illustrative list of themes for sanctions regimes. If the Parliament elects to pass the Bill, the Government will amend the Autonomous Sanctions Regulations 2011 to establish three new thematic sanctions regimes: serious violations or serious abuses of human rights; activities undermining good governance and the rule of law, including serious corruption; and malicious cyber activity. This was part of the Government Response to the Joint Standing Committee on Foreign Affairs, Defence and Trade, issued on 5 August 2021.
This will enable Australia to respond flexibly and swiftly in the national interest, without the delay of creating a new country regime when a situation of international concern arises, if the conduct constitutes serious human rights abuses and violations, serious corruption or malicious cyber activity.
The Government Response included a commitment to introduce a new thematic cyber regime, in addition to the Magnitsky-style sanctions canvassed by the Committee. This additional tool of statecraft, will serve alongside other law enforcement and operational mechanisms, to enhance Australia's response to instances of egregious malicious cyber activity that impact our interests.
The Regulations will provide the specific criteria under which a person or entity could be sanctioned under these new thematic regimes, should the Minister for Foreign Affairs assess - after appropriate consultation - that it is in Australia's national interest to do so. Additional thematic sanctions regimes could be included in the Regulations at a later date, should the Government consider they are necessary.
Embedding the new thematic regimes in our existing autonomous sanctions framework means that established processes and safeguards will continue to apply, rather than being duplicated across multiple sanctions Acts and frameworks. This is important to provide certainty and continuity for all of those who engage with our autonomous sanctions framework. Businesses and the community can maintain their existing compliance processes while those involved in governance, whether at the bureaucratic, political or legal level, will not be required to administer new provisions. This is similar to the approach taken by the UK, which does not have a standalone Act, and has a similar framework with Regulations under an overarching Act.
The changes we are making to the existing Act and Regulations empower us to do all that a separate Bill would do, without creating multiple, and complex, laws, separate frameworks, and imposing additional regulatory burdens on businesses and the community.
Consistent with current practice, the Government encourages public engagement on these significant issues and looks forward to future recommendations from Parliament and civil society on possible listings.
The Bill will support the ongoing role of sanctions as a primary tool of statecraft, by which Australia can define, defend and demonstrate our foreign policy values globally and support a robust international rules-based order.
I commend the Bill to the Senate and, in doing so, would like to thank everyone who has advocated for and supported Magnitsky-style sanctions, in particular, the Chair of the JSCFADT Senator David Fawcett, the Chair of the JSCFADT Sub-committee Kevin Andrews MP and his colleagues on the Committee, and several others across all sides of politics, including Senator Penny Wong, Senator James Paterson, Senator Kimberley Kitching and Senator Janet Rice.
Ordered that further consideration of the second reading of this bill be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.