Should Australia join the Global Magnitsky movement?
The Law Council generally welcomes the release of the Joint Standing Committee on Foreign Affairs, Defence and Trade - Human Rights Sub-committee’s Report as part of its Inquiry into targeted sanctions to address human rights abuses. As highlighted in the Law Council’s recent media release, the recommendation that Australia should adopt a stand-alone Magnitsky-style legislation, is a move in the right direction.
In-principle the Law Council supports Australia’s use of sanctions to apply pressure to individuals responsible for serious violations of internationally recognised human rights and serious acts of corruption. It acknowledges the merit in facilitating international cooperation to deal with these issues through Magnitsky-style legislation. However, it emphasises that such legislation should include comprehensive safeguards that are consistent with upholding human rights.
At this stage, the Law Council welcomes the Committee’s recommendations that:
- the new targeted sanctions legislation should apply to a range of conduct including ‘serious corruption’ as well as serious human rights abuse, with careful consideration given to the appropriate definitions applicable;
- an independent advisory body be constituted to receive nominations for sanctions targets, to consider them and make recommendations to the Minister as decision-maker;
- the decision-maker should be required to give reasons for any decision not to adopt a recommendation by the advisory body;
- legislation provide a targeted person with a right of reply prior to any sanctions being made, and for the Minister to consider this reply;
- the requirement for a published list of sanctioned people and reasons for sanctions, subject to certain limited exemptions;
- the new legislation incorporate regular parliamentary reporting and oversight; and
- the regime should be subject to a three-yearly review post-enactment.
It has some reservations regarding other Committee recommendations/findings, such as:
- that the new legislation be applicable to conduct that has occurred prior to enactment of the legislation. It considers that people must be able to know in advance whether their conduct might attract criminal sanction or a civil penalty;
- the open-ended discretions including the lack of proposed legislative criteria to which the Minister as decision-maker must have regard in determining sanctions, including whether the sanction is proportionate to the likely effects on the person taking into account other, less intrusive alternatives;
- that independent merits review is not a necessary safeguard for a sanctioned person;
- the proposal for a public ‘watch list’ of people being considered for sanctioning, which may result in substantial reputational damage without sufficient evidence having necessarily been established; and
- that while a person may request a Ministerial review of a decision, the regulations may limit the obligation to conduct such reviews.
The Law Council looks forward to responding to the detail of any proposed legislation, and anticipates closely consulting with the legal profession.