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Local Magnitsky laws a good move – handled wisely

16 August 2021

6:36 PM

16 August 2021

6:36 PM

In a move to bring Australia into the Global Magnitsky Movement, Labor Senator Kimberley Kitching has introduced the International Human Rights and Corruption (Magnitsky Sanctions) Bill 2021, a bill that would enable Australia to impose sanctions on foreign individuals who engage in grave human rights abuses or corruption. 

Over the past few years, the United States, Britain, Canada and the European Union have adopted similar legislation which enables them to freeze assets and place travel bans on targeted individuals. 

The legislation and movement are named after Sergei Magnitsky, a Russian tax lawyer who exposed massive financial corruption within the Russian government and was subsequently imprisoned, tortured and killed by Russian authorities in 2009.  

In March the US, UK, EU and Canada all coordinated to place Magnitsky sanctions on Chinese officials for the CCP’s persecution of the Uyghur population, which former director of the CIA and Secretary of State Mike Pompeo referred to as a genocide.  

An Australian Senate committee report from December 2020 noted that many Chinese people who have fled persecution and are now living in Australia have been calling for Australia to adopt Magnitsky laws to hold the CCP accountable. One such example is the Falun Dafa, relentlessly pressed and imprisoned, tortured, and murdered by Chinese authorities. 

While there are many individuals and political entities that Australia ought to place sanctions on, members of the CCP are undoubtedly near the top of the list. The CCP are an authoritarian, Marxist state determined to control their population through the use and threat of violence and have been positioning themselves as an existential threat to the West for some time. Magnitsky sanctions would be a vital next step in Australia’s progress in countering the regime’s tactics.  

As Labor Senator Anne Urquhart said in her second reading speech of the new Magnitsky Bill: 

In a world of growing authoritarianism, this [legislation] becomes a weapon for democratic pushback. A strong and clear message will be sent to lower-ranking officials and criminal thugs that their crimes – whether on behalf of or protected by their superiors, will not be immune from international consequences… This says that Australia will not be a fence for stolen goods, nor hollow log for stolen money.

The Senate Committee report noted that “The aim of these sanctions is primarily to act as a deterrent – by reducing the opportunity to enjoy ‘ill-gotten gains’ with impunity,” the concern being that as other countries join the Magnitsky movement human rights violators would seek refuge in Australia. 

There are currently two sanctions Acts in force in Australia – the UNSC Charter of the United Nations Act 1945 and the Autonomous Sanctions Act, the latter of which was created because China is a permanent member of the UNSC and would never agree to proposed sanctions. Australia has imposed UNSC sanctions as recently as 2019, and the Autonomous Sanctions Act has targeted a number of regimes, including North Korea and Iran, but the Senate Committee expressed concerns that the criteria for these Acts are vague and don’t specifically serve to address human rights abuses or target specific individuals.  

The Committee recommended that Australia join the Global Magnitsky Movement with brand new legislation rather than amend the Autonomous Sanctions Act, a decision which appears to be a largely symbolic gesture designed to send a message to the world.  

However, not all the Committee’s recommendations are being implemented at this early stage. The right to a review, a regular review processes, and, notably, an independent body to “de-politicise” the process by making recommendations are missing from the bill. Not having this independent body may make the process less bureaucratic and complicated but could also mean that sanctions are applied somewhat inconsistently (which, undoubtedly, is always an issue with sanctions, given that we are unlikely to sanction our allies if they commit offences). 

It’s also worth noting that the report, which provided a draft outline for a Magnitsky Bill, defined human rights violations as “conduct that would be a breach of Divisions 268 (genocide, crimes against humanity, war crimes and crimes against the administration of justice of the International Criminal Court), 270 (slavery and slavery-like offences) or 274 (torture),” of the Criminal Code Act 1995. Senator Kitching’s Bill uses Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, which itself relies on a list of seven U.N. Conventions as its basis for human rights. 

Simply put, the new Magnitsky Bill currently provides less accountability and procedural clarity and a broader understanding of “Magnitsky conduct” than the Senate Committee report recommended, which is odd given that accountability structures and the need for very specific definitions of what constitutes “Magnitsky conduct” was a major theme of the report. The bill in its current form would hypothetically allow sanctions to be used against those who undertake “discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,” whereas the report’s criteria is much more serious and specific. 

The need for Magnitsky legislation is undoubtedly real, and the introduction of this bill is a significant step in the right direction, but the Senate must seriously consider the need for checks and balances in order to ensure that Magnitsky laws fulfil their purpose of punishing and deterring perpetrators of heinous crimes and don’t become a political weapon to be wielded heavy-handedly. 

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