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Joint Standing Committee on Foreign Affairs, Defence and Trade
31/03/2020
Magnitsky laws

ARRAF, Ms Rawan, Director, Australian Centre for International Justice

Evidence was taken via teleconference—

SUBCOMMITTEE CHAIR: I welcome you to these hearings, which are being conducted by teleconference. I advise you that, in giving evidence to the subcommittee, you're protected by parliamentary privilege. I also remind you of the obligation not to give false or misleading evidence. To do so may be regarded as a contempt of parliament. These are public proceedings, although the subcommittee may agree to a request to have evidence heard in camera or may determine that certain evidence should be heard in camera. If a witness objects to answering a question, the witness should state the grounds upon which the objection was taken and the subcommittee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the subcommittee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may of course be made at any other time.

I ask you to refrain from naming individuals who may be associated with current cases, to protect the privacy of individuals. In accordance with the committee resolution of 24 July 2019 this hearing will be broadcast on the parliament's website and the proof and official transcripts of proceedings will be published on the parliament's website. The committee has the submission from the Australian Centre for International Justice. Are there any changes or amendments to that submission?

Ms Arraf : No.

SUBCOMMITTEE CHAIR: I ask you to make some opening comments.

Ms Arraf : Good morning. Thank you, Chair and the Human Rights Subcommittee, for the opportunity to address this inquiry into whether Australia should examine the use of targeted sanctions to address human rights abuses worldwide. The ACIJ supports this inquiry and the proposal for a human rights sanctions regime in Australia to strengthen, promote and protect international human rights and international justice. The ACIJ's work focuses primarily on criminal justice and accountability and on developing Australia's universal jurisdiction practice. Our submission and recommendations, therefore, focus on ensuring that any introduction of an Australian human rights sanctions regime considers any possible consequences and impediments to prosecution and achieving international criminal justice. Before I delve more deeply into this issue I wish to present our opening remarks by raising some of the concerns with the current Australian autonomous sanctions regime and why a new legislative framework focused on human rights is needed.

The ACIJ supports a new legislative framework that promotes and strengthens human rights globally with the tools to impose targeted sanctions and visa restrictions and other like measures on foreign actors involved in human rights violations and acts of corruption. We believe it would strengthen Australia's capacity to respond to human rights violations globally and target those persons involved in acts of corruption and severe breaches of human rights. A number of submitters have relayed to the committee the inefficiency of the current framework for an autonomous sanctions regime in Australia to effectively address human rights abuses worldwide. There is simply no reference to human rights in the Autonomous Sanctions Act. Only the explanatory memorandum to the bill introducing the act in 2011 provides for consideration that sanctions can be imposed for the grave repression of human rights or democratic freedoms. However, the objective of imposing sanctions for these purposes has only been used in a small number of cases. It cannot be said that the current regime is being used effectively or genuinely to combat human rights abuses.

From our review of the current autonomous sanctions regimes in place in respect of nine countries, the purpose of protecting human rights is mentioned only minimally in relation to Zimbabwe and Syria. It may be that the other specified sanction designations in the list of autonomous sanctions regimes currently imposed by the Department of Foreign Affairs and Trade also have the intended purpose of punishing those responsible for human rights violations, but it's impossible to tell, because it's not stated. This represents an inconsistency of framing the imposition of sanctions around the protection of human rights and raises questions about the autonomous sanctions regime's effectiveness and appropriateness in protecting human rights.

A sanctions regime focused on protecting and promoting human rights should articulate human rights norms to achieve maximum impact. The current regime is not based on objective criteria. An example of this is that in 2019 the Minister for Foreign Affairs imposed targeted financial sanctions and travel bans on members of the Myanmar military, the Tatmadaw, in response to release of the full report of the UN fact-finding mission on Myanmar, which documented serious human rights violations and international humanitarian law violations against ethnic minorities in Myanmar, including the commission of atrocity crimes against the Rohingya and other ethnic minorities. The minister expressed serious concern at the findings of the mission and moved quickly to adopt some of the recommendations. However, of the six top generals of the Tatmadaw against whom the fact-finding mission urged countries to impose targeted sanctions, Australia listed only four, and it included another brigadier general not identified in the mission's report. The US, Canada and European countries did not refrain from designating the top two—the commander-in-chief and the deputy commander-in-chief of the Tatmadaw—for targeted sanctions. This represents the arbitrary and inconsistent nature of, and lack of objective criteria in, the Australian designations process. A new and separate sanctions legislative framework focusing on human rights, which provides clear guidelines for the designation process, will address this problem.

Many submitters have raised the issue of the lack of parliamentary oversight in relation to the current sanctions regime. Issues regarding the designation process and its opaqueness, the lack of transparency and broader concerns about the lack of procedural fairness rights mean that there is no effective oversight of this regime. This raises the question of whether there has been sufficient scrutiny to address these concerns in the decade of the autonomous sanctions regime's operation.

The ACIJ, therefore, recommends the establishment of a committee of experts, independent of the executive, to provide monitoring, recommendations, guidance and expertise to the minister in sanctions designations. In addition to addressing the other concerns just raised, the ACIJ also recommends that a sanctions determination process ensure contribution of civil society and non-government organisations; that the scope of conduct in applying targeted sanctions include serious violations of international human rights law, violations of international humanitarian law and acts of corruption; and that the legislation ensure human rights safeguards, such as the right to seek merits review.

I would like to now address our first recommendation and the focus of our submission. The ACIJ states that the criminal prosecution of perpetrators of human rights violations, where those violations amount to the commission of international crimes, should be Australia's primary objective in combating impunity for serious violations of human rights but that, in circumstances where prosecution is not likely, targeted sanctions can be a powerful tool for accountability. The ACIJ, therefore, recommends that decisions to impose sanctions ensure consultation with relevant government agencies and departments to consider whether the alleged conduct amounts to an extraterritorial criminal offence against the Commonwealth of Australia in chapter 8 of the Criminal Code and to determine whether prosecution is more likely and appropriate in the circumstances.

I note that this is the position of the European Union and was highlighted in the submission of the Netherlands Ministry of Foreign Affairs, where they state:

The basic premise must be that human rights sanctions and criminal prosecution are two different instruments. Sanctions are complementary to criminal law proceedings; they do not replace them … when international criminal proceedings are not an option, and a national prosecution fails to materialise, a sanctions regime offers the EU the opportunity to take action and to send a political message.

Under international law, Australia has obligations to prosecute and punish those who engage in the commission of international or grave crimes. It also has a duty to prevent the commission of these crimes. Encouraging effective investigations and prosecutions is, therefore, paramount to enforcing this obligation. The obligation to prosecute should be prioritised, where possible, over other accountability tools. Sanctions are a valuable tool to hold human rights violators accountable. They are not a substitute but can augment or sometimes precede individual criminal responsibility. The ACIJ therefore recognises that prosecutions are not likely in all circumstances, particularly where there is difficulty in obtaining evidence to the standard required in a court of law and, where necessary, prospects of success are low in extradition proceedings.

There are myriad difficulties and challenges for investigative and prosecutorial authorities. They include the complexity surrounding the collection of evidence, the sufficiency of that evidence to withstand rules of evidence and procedure in court, and the likelihood of the presence of the alleged perpetrator for the trial or the likelihood of successful extradition proceedings. There are, however, circumstances where these challenges and difficulties can be overcome and are attainable. Therefore, in these circumstances, imposing sanctions such as visa travel bans on perpetrators who might be of interest to Australian investigators and prosecutors will directly impede prosecution. Therefore, any sanction decision-making process adopted should ensure consultation with relevant Australian departments and agencies such as the Australian Federal Police, the Commonwealth Director of Public Prosecutions and the Attorney-General's Department to consider whether the circumstances would favour prosecution, therefore deciding against imposing some or all sanctions measures such as visa travel bans.

There are two other recommendations I want to raise briefly. Legislation should include non-state actors as persons who may be the target of sanctions, and legislation should include immediate family members in the prescription of sanctions against targeted individuals. The introduction of a new Australian human rights sanctions regime represents a unique opportunity for Australia to protect and promote human rights globally by targeting human rights abusers and corrupt actors and promoting accountability. I'm happy to take questions.

SUBCOMMITTEE CHAIR: Thank you very much, Ms Arraf. I will lead off. On your first recommendation, in relation to the prosecution of alleged offenders, can you elucidate or take on notice the process involved there. If the priority is to prosecute perpetrators, there are limitations on the ability to do that when you're dealing with people in another jurisdiction if there are no extraterritorial provisions in the legislation under which any prosecution can be brought. There are some aspects of our legislation which extend further than others, but generally they don't. If there's no extraterritorial aspect to legislation, are you proposing that it would be appropriate to go directly to a sanction, if a sanction is appropriate, when a prosecution can't be done? Secondly, where it is possible to prosecute, should a prosecution be a priori undertaken prior to any sanctions being imposed or contemplated?

Ms Arraf : In relation to your first question: in essence, yes, that is our answer. Where there is an inability to proceed to a likely prosecution, sanctions measures should be adopted. In relation to your second question: I would think that a process model involving consultation with the relevant agencies involved, where they are possibly looking into whether a prosecution of alleged perpetrators is more likely in the circumstance, given the availability of the evidence, the strength of that evidence and the likelihood that we will see that person in Australia able to appear before trial, is a decision for the prosecutors to make. Our focus here is to ensure that, when designations for sanctions are made, there is proper consultation with all the relevant agencies to ensure that, if investigators and prosecutors are looking at a specific individual, there is no prospect of the department of foreign affairs issuing sanctions which would likely impede a prosecution.

SUBCOMMITTEE CHAIR: So that would be a matter of having to balance up the various considerations in each individual case?

Ms Arraf : That's right, yes.

SUBCOMMITTEE CHAIR: That leads me to my second question. Your third recommendation is:

The Australian Government consider establishing a committee independent of the executive to provide monitoring, recommendations, guidance and expertise to the Minister in sanctions decisions.

Were you contemplating a parliamentary committee or a committee drawn from people outside both government—

Teleconference interrupted

SUBCOMMITTEE CHAIR: Before you go on: can I ask everybody to put their microphones on mute when they're not speaking, just in case we get incoming calls like that. Thank you. Go ahead, Ms Arraf.

Ms Arraf : In our submission we referred in brief to what that kind of committee could look like. I suppose a good analogy would be the role occupied by the Independent National Security Legislation Monitor. That's a model that could be adopted.

SUBCOMMITTEE CHAIR: Yes, thank you. Senator Abetz?

Senator ABETZ: Thanks for the submission. You've undoubtedly looked at the various acts in the various countries that have a Magnitsky act. I'm wondering: which do you think is the best, and why, and should any legislation that Australia might enact be retrospective?

Ms Arraf : It's an interesting set of questions. I don't think there is a model that is the best, which is why I think Australia can really take aspects of different parts of those models and come up with the best model. This is really an opportunity for Australia to lead in this regard and to have various aspects of different types of models. I would say that aspects of the US and the Canadian models are at least operating to show that there is impact. We don't really know how the impact of the UK model is developing, but it would be interesting to see that developing as well and to see how they're progressing, the targeted impact and the designations that they decide to impose.

In terms of retrospectivity, I don't think there's an issue with that. We saw most recently that the United States imposed sanctions against the current Sri Lankan army chief, General Shavendra Silva, and his immediate family. The US cited his alleged involvement in war crimes during the final stages of the Sri Lankan civil war. So I don't think there's a problem with retrospectivity in this regard.

SUBCOMMITTEE CHAIR: Thank you. Senator Fawcett?

CHAIR: I have two quick questions. One is fairly simple. In recommendation 7 you argue that the legislation should include immediate family members. We did have a previous witness give us the example of perhaps an estranged son living somewhere else with a dictatorial father. Should we take into account those kinds of circumstances as opposed to just automatically including family members?

Ms Arraf : Absolutely we should take into account those circumstances. I think it should be reasonable in the circumstance. It should be applied flexibly on a case-by-case basis and consider compelling circumstances for waivers and exemptions. I believe the US model has that as well. I want to highlight that this is actually something that the current autonomous sanctions regime in Australia imposes, so it would not be a novel approach to impose sanctions on immediate family members. From our review of the current Australian regime, we note that it covers designated persons from Libya and their family members and, in relation to Myanmar, it covers immediate family members of specified persons. So it's not a novel approach to call for this. We know of circumstances—and I understand you might hear from members of the Cambodian community later on—where violators or abusers of human rights, and their family members, do enjoy freedoms and privileges here in Australia. I think the impact of such measures would really have a huge psychological and social impact on their immediate family members and themselves. So we would recommend that this be adopted in legislation or be considered in any designation process.

CHAIR: Going to your recommendation 5, a number of submitters have also highlighted the need for a merits review. Where do you see that the limits on that should be, such that we don't have nefarious figures tying up Australia's legal system—often at our cost—even if it's just for our side of the process, for long periods of time? How would you see that working?

Ms Arraf : It's difficult, at the moment, to address. I'm happy to take that on notice, but I think it's important to recognise that regardless of a nefarious process we need to ensure that there are procedural safeguards. That would be my answer to that. But I'm happy to see how the approach and practice is in Canada, to see whether there is an opportunity for us to look at how the impact is on their system there.

CHAIR: That would be useful, particularly in scenarios where the conduct is such that—under some UN sanctions, for example, engagement with people is not allowed. If a similar sort of offence were committed, on what basis should we be engaging with people who are considered to be undesirable to engage with? We need to balance that judicial fairness of a merits review with some practical considerations as well.

SUBCOMMITTEE CHAIR: Do any other committee members have questions?

Mr HILL: I have a couple of questions, but they've been dealt with by members. I thought it was an exceptionally clear, well-structured and logical submission, so thank you.

Ms Arraf : Thank you very much.

SUBCOMMITTEE CHAIR: Thank you for your submission and for coming in and discussing it with us today. We appreciate that very much. If there's any information—

CHAIR: Sorry, could I ask one further question?

SUBCOMMITTEE CHAIR: Go ahead.

CHAIR: With your recommendation 3, 'a committee independent of the executive to provide monitoring, recommendations and guidance', are you seeing that as being something external to not only the executive but the parliament or do you see that a parliamentary committee could play that role? Where do you see that process going, and do you see that being involved from the very initial stages of civil society putting forward cases for considerations right through to what the US have, where state and treasury are the ones ultimately responsible for recommending to the President what should be imposed?

Ms Arraf : I would see that such a body would resemble the role occupied by the Independent National Security Legislation Monitor. That monitor or, at least, a body of experts would provide recommendations, guidance and expertise to the minister, the department of foreign affairs and the Australian Sanctions Office. So the vision is there. That body of experts could also be an avenue for civil society engagement to provide information on persons they think should be the subject of sanctions. I want to highlight that this is also a recommendation from Geoffrey Robertson QC, and there is an excellent submission by the Independent High Level Panel of Legal Experts on Media Freedom, from the UK, written by Ms Amal Clooney, which goes directly into the principles around such a body. I would recommend the committee avail themselves of that submission, in relation specifically to this point, which I found very useful as well.

SUBCOMMITTEE CHAIR: Thank you, again, Ms Arraf, for your submission and for discussing it with us today. If there is any further information you're able to forward to the secretariat, as a result of the questions today, we'd appreciate that. Thank you very much.

Ms Arraf : Thank you very much. Stay safe, everybody.