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Wednesday, 26 May 2010
Page: 4112

Mr STEPHEN SMITH (Minister for Foreign Affairs) (9:21 AM) —I move:

That this bill be now read a second time.

Autonomous sanctions are a key tool in Australian diplomacy.

They are highly targeted measures intended to apply pressure on regimes to end the repression of human rights, to end the repression of democratic freedoms, or to end regionally or internationally destabilising actions.

Such situations include Iran’s failure to cooperate fully with the International Atomic Energy Agency (IAEA) to enable it to confirm Iran’s nuclear program is exclusively for peaceful purposes and the autonomous sanctions Australia has had in place on North Korea since 2006 in response to its missile and nuclear tests; or, in the case of Zimbabwe where the Mugabe regime has been responsible for acts undermining the rule of law, corruption, violence and intimidation; or the December 2006 military coup in Fiji that robbed the population of Fiji of their constitutional rights and has seen the sustained abuse of basic freedoms, including the suppression of press freedom; or the September 2007 violent crackdown on pro-democracy protestors by the military regime in Burma, and the ongoing disrespect for the human rights and the democratic aspirations of the Burmese people.

Autonomous sanctions are applied so as to minimise, to the extent possible, the adverse impact on the general population of the affected country.

They are called ‘autonomous’ sanctions to distinguish them from sanctions applied under international obligations arising from United Nations Security Council decisions. There is a range of situations which are not covered by United Nations Security Council sanctions.

These include the situations in Zimbabwe, Fiji and Burma to which I have already referred.

Australia is one of a number of like-minded countries, such as the United States, Canada, New Zealand and European Union members, which actively seek to bring about positive change through the pressure applied by sanctions where the Security Council is unable to act.

In some circumstances, autonomous sanctions are used to supplement sanctions imposed by the Security Council.

The Security Council imposes a range of sanctions against Iran and the DPRK—North Korea—in response to the threat to international peace and security posed by their programs of weapons of mass destruction-proliferation concern.

Australia, as well as the United States, the European Union and other states, imposes autonomous targeted financial sanctions and travel restrictions on a range of individuals and entities beyond those required by the Security Council.

Autonomous sanctions may well play an increasing part in like-minded responses to situations of international concern.

To date, Australia has relied on existing instruments intended for other purposes to apply autonomous sanctions.

Autonomous targeted financial sanctions are applied under the Banking (Foreign Exchange) Regulations 1959, which were originally promulgated for the protection of Australia’s currency and regulation of our foreign currency reserves.

Autonomous arms embargoes are applied under the Customs (Prohibited Exports) Regulations 1958, meaning that they can only apply to tangible goods exported from Australia; they do not apply to intangibles—like software—or to military services.

The purpose of the Autonomous Sanctions Bill 2010 is to strengthen Australia’s autonomous sanctions regime by allowing greater flexibility in the range of measures Australia can implement, beyond those achievable under existing instruments, thus ensuring Australia’s autonomous sanctions can match the scope and extent of measures implemented by like-minded states.

The bill will also assist the administration of, and compliance with, sanctions measures by removing the distinctions between the scope and extent of autonomous sanctions and Security Council sanction enforcement laws.

The bill is modelled on the legislation with which Australia implements United Nations Security Council sanctions, namely the Charter of the United Nations Act 1945.

It is a framework which includes provisions for the establishment of laws imposing autonomous sanctions measures, known as sanctions laws, provisions for the enforcement of those laws—including through the imposition of criminal penalties for contravention of sanctions laws—and provision for obtaining, using and sharing information to monitor compliance with sanction laws.

It does not, however, include the specific sanctions measure itself. Instead, it provides for sanctions laws to be primarily applied by regulations made under the bill.

This is critically important for the effectiveness of the bill, and for Australia’s national interest in the imposition of autonomous sanctions measures.

Allowing these measures to be applied by regulations will allow the necessary flexibility for the government to respond to fluid and rapidly changing international developments in a timely way.

The bill will continue to allow other Commonwealth laws to be used to apply autonomous sanctions where this is necessary. It will, however, require the Minister for Foreign Affairs to specify, in a legislative instrument, any law—including those in regulations made under the bill—that is to be applied as a sanctions law. This will ensure greater certainty and transparency in terms of compliance with Australia’s sanctions laws.

In terms of enforcement of autonomous sanctions, the bill applies measures for contravening, or for providing false and misleading information in relation to, sanctions laws specified under the bill. These are identical to those that apply to Security Council sanction enforcement laws specified under the Charter of the United Nations Act 1945.

The penalty for an individual who contravenes a sanction law, or a condition of a permit under a sanction law, will therefore be a maximum of 10 years imprisonment and/or a fine of 2,500 penalty units, or three times the transaction value, whichever is the greater.

For a body corporate, the offence is a strict liability offence carrying a maximum fine of 10,000 penalty units, or three times the transaction value, whichever is the greater. The offence would not, however, apply to any body corporate that can show it took reasonable precautions, and exercised due diligence, to avoid contravening the sanction law or permit condition.

Similarly, it will be an offence, punishable on conviction by up to 10 years imprisonment and/or a fine of 2,500 penalty units, to provide false or misleading information in connection with the administration of a sanction law. Any permit obtained on the basis of such information will be deemed never to have been granted.

These penalties are significant, and it is appropriate that this be the case. There is no sound policy reason to treat breaches of Australian law imposing Security Council sanctions differently to breaches of Australian law imposing Australian autonomous sanctions.

Autonomous sanctions, like security sanctions, are designed to prevent the provision of material assistance to regimes engaged in violations of international standards and norms, including human rights abuses, acts of aggression and destabilising actions. The measures themselves—targeted financial sanctions, arms embargoes and restrictions on supply of strategic and dual use goods—are the same as applied by the Security Council.

Finally, the bill will facilitate access to information for purposes associated with the administration of sanction laws by removing impediments for the sharing of such information within the Commonwealth, and allowing specially designated Commonwealth entities, responsible for the administration and enforcement of sanction laws, to require, by written notice, the production of documents and written information—including under oath—from persons outside of government in order to determine whether a sanction law is being complied with.

While the bill will apply to all autonomous sanctions regimes effected or maintained by the government, there is now a pressing need to enact such legislation that specifically relates to the autonomous sanctions regime with respect to Iran, and the need to be prepared to apply further autonomous sanctions, should the international community and Australia decide to do so, in response to concerns about Iran’s nuclear program. The government wishes to have in place the most effective tools for applying additional autonomous sanctions against Iran.

Iran continues to fail to comply with its international obligations, including binding United Nations Security Council resolutions, and its obligations to the International Atomic Energy Agency, including refusing to suspend its uranium enrichment and heavy water related activities.

Iran’s actions pose a serious threat to international stability and peace and security.

Similarly, the dangerously provocative conduct of North Korea in the face of international concern over its nuclear weapons and missile programs, most recently highlighted by the conclusions of a multinational inquiry that North Korea was responsible for the sinking of a Republic of Korea naval vessel, the Cheonan, reinforces the need for Australia to have available effective autonomous sanctions measures to supplement Security Council sanctions.

The bill will improve Australia’s capacity to respond quickly to issues of international concern, such as in the case of Iran and North Korea.

Finally, Australia’s autonomous sanctions will continue to be the subject of regular review by the government, in terms of both the ongoing need to apply pressure on particular regimes and the specific sanctions measures applied in respect of the particular regime.

I commend the bill to the House.

Debate (on motion by Mr Andrews) adjourned.