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International Human Rights and Corruption (Magnitsky Sanctions) Bill 2021

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2019-2021

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

INTERNATIONAL HUMAN RIGHTS AND CORRUPTION (MAGNITSKY SANCTIONS) BILL 2021

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Kitching)

 



INTERNATIONAL HUMAN RIGHTS AND CORRUPTION (MAGNITSKY SANCTIONS) BILL 2021

 

OUTLINE

 

The purpose of the International Human Rights and Corruption (Magnitsky Sanctions) Bill 2019 (the Bill) is to make provisions enabling sanctions to be imposed, at the discretion of the Minister, for the purposes of compliance with United Nations obligations or other international obligations; or for the purposes of preventing or responding to gross human rights abuse or violations; or acts of significant corruption.

 

The Bill follows the precedent set by the Global Magnitsky Human Rights Accountability Act 2016 (US) and the Sanctions and Anti-Money Laundering Act 2018 (UK) , aimed at curbing the influence of foreign persons and entities who have engaged in activities deems illegal by international human rights law.

 

The Bill extends powers to the Minster to allow sanctions to be incurred in circumstances which a person, persons or entities have violated international human rights or engaged in acts of significant corruption.

 

The sanctions applied through this bill restrict the ability of these person(s) or entities from commercial dealings, trades or the use of assets within Australia.

 

Further, the Bill allows for the Minister to restrict the immigration of person(s) or classes of person(s) who are deemed to have violated obligations outlined in international human rights law.

 

FINANCIAL IMPACT

 

The bill will have no financial impact.

 

NOTES ON CLAUSES

Part 1 - Preliminary

Clause 1: Short Title

1.                        This clause provides for the Act, when enacted, to be cited as the International Human Rights and Corruption (Magnitsky Sanctions) Act 2021 . The Act references Sergei Magnitsky, a human rights lawyer specialising in anti-corruption activities who was beaten to death whilst being held in a Russian prison. Similar bills have been enacted referencing his name in various jurisdictions, including the United States and the United Kingdom.

 

Clause 2: Commencement

2.                        This clause sets out the timeframe under which the Act, if enacted, comes into force. The commencement of the Bill will take place concurrent to it receiving Royal Assent.

Clause 3: Simplified outline of this Act

3.                        This clause shows that the purpose of this Act is to regulate the activities of foreign persons, through sanctions in immigration, or finance or trade. The sanctions that are imposed by the Minister, through this Act, must be made on the basis of violations of international human rights law. These sanctions ensure that foreign persons who have violated these international human rights obligations are held responsible and that other such persons are so discouraged. The Act strengthens Australia’s commitment to International law.

 

Clause 4: Definitions

4.                        This clause defines various terms used in the Bill.

 

Asset:

a)         an asset of any kind or property of any kind, whether tangible or intangible, moveable or immovable, however acquired; and

b)         a legal document or instrument in any form, including electronic or digital, evidencing title to, or interest in, such an asset or such property, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, debt instruments, drafts and letters of credit.

 

Australia: when used in this Bill includes all States and Territories including those that are external Territories.

 

Foreign Person: adopts the meaning used in the Foreign Acquisitions and Takeovers Act 1975 .

 

Clause 5: Act binds the Crown

5.                        This clause binds the Crown to the Act in each of its capacities.

 

Clause 6: Application of this Act

6.                        This clause defines the territories to which the Act applies. It extends to every external Territory, and applies both within and outside Australia.

Part 2 - Power to make sanctions regulations

Clause 7: Regulations may impose sanctions

7.                        The purpose of this clause is to allow for sanctions regulations to be imposed on prescribed persons at the discretion of the relevant Minister. 

 

8.                        This clause outlines that the regulations set out by the Act may apply to a prescribed foreign person, or a foreign person included in a prescribed class of foreign persons. The intended effects of the regulations sanctions are to:

 

a)         provide accountability for, or be a deterrent to, gross violations of human rights or significant corruption; or

b)         otherwise promote compliance with international human rights law or respect for human rights.

 

9.                        For the purpose of achieving these intended effects, this clause extends to the Minister the powers to:

 

a)         impose immigration sanctions by way of invalidating a visa application or by cancelling a visa held by the prescribed person; or

b)         impose financial sanctions by way of restricting or preventing the uses of, or making available of, assets owned, held or controlled by the prescribed person; or

c)         impose trade sanctions restricting or preventing the supply, sale, transfer, import or export of goods or services by or to the prescribed person.

 

10.                    The clause requires that the Minister must be satisfied that the enforcement of one or more of the sanctions regulations will achieve the intended effects before such sanctions regulations are made by the Governor-General.

 

11.                    The clause is intended to be used only in cases where the Minister has credible evidence that imposing sanctions regulations will sufficiently fulfil the intended effects.

 

12.                    The clause requires that regulations imposed under this Act must be consistent with Australia’s obligations under international law, including Australia’s obligations under any agreement or arrangement with one or more other countries.

 

Clause 8: Effect of regulations

13.                    This clause specifies that the regulations of the Act have effect despite any other law of the Commonwealth, a State or a Territory, unless the law expressly provides otherwise. Additionally, it ensures compliance with paragraph 51 (xxxi) of the Constitution.

 

Clause 9: Offences

14.                    This clause outlines penalties for offences against the regulations; which are imprisonment for a period not exceeding 12 months or a fine not exceeding 50 penalty units.

Part 3 - Miscellaneous

Clause 10: Severability

15.                    This clause outlines the constitutional viability of the Act. It includes external affairs power, aliens power, corporations power, nationhood power and incidental power.

Clause 11: Regulations

16.                    This clause outlines the responsibilities of the Governor-General in relation to the Act.



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

International Human Rights and Corruption (Magnitsky Sanctions) Bill 2019

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

A Bill for an Act to enable Australia (under the authority of the relevant minister) to impose sanctions to promote compliance with international human rights law and respect for human rights, and for related purposes.

 

Human rights implications

This Bill does not engage any of the applicable rights or freedoms.

 

Conclusion

This Bill is compatible with human rights as it advances the protection and promotion of human rights through identifying, condemning and sanctioning foreign persons or entities that are found to be in breach of such rights

 

Senator Kitching