Autonomous Sanctions Amendment Bill 2024 - New and Ongoing Matters [2024] AUPJCHR 10 (20 March 2024)

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Purpose	This bill seeks to amend the Autonomous Sanctions Act 2011 to confirm that individuals and/or entities can be validly sanctioned based on past conduct or status, and retrospectively seeks to validate sanctions that were made based on past conduct or status. It also seeks to confirm that sanctions are valid even where it is not explicitly clear that the minister considered their discretion, also with retrospective effect.
Portfolio	Foreign Affairs and Trade
Introduced	House of Representatives, 15 February 2024 (Passed House of Representatives on 28 February 2024)
Rights	Fair hearing; privacy; protection of the family; adequate standard of living; freedom of movement

1.10 The bill seeks to amend the Autonomous Sanctions Act 2011 (the Act) to provide that individuals and/or entities can be validly sanctioned based on past conduct or status.^[29] It would confirm that sanctions imposed on individuals or entities based on sanctions criteria containing past conduct/status, and the sanctions criteria containing past conduct/status themselves, are valid and cannot be invalidated on the basis that the ability to impose sanctions is not constrained by a temporal limit.^[30] It also seeks to validate any instrument imposing sanctions on individuals or entities based on past conduct/status, where the sanction was made under sanctions criteria in the Autonomous Sanctions Regulations 2011 (the regulations) containing temporal limits on the scope of past conduct/status, and which exceeded those limits.^[31]

1.11 In addition, the bill would retrospectively validate prior sanctions even where it is not explicitly clear that the minister had considered their discretion to sanction the person/entity at all, or to decide whether to only designate a person for targeted financial sanctions or only declare them for travel bans, or both.^[32] This proposed provision would appear to be in direct response to a recent Federal Court of Australia judgment.^[33]

Rights to a fair hearing; privacy; protection of the family; freedom of movement

1.12 The explanatory memorandum states that the proposed amendments would ‘clarify but not alter’ the autonomous sanctions framework and are ‘unlikely to have more than a minor regulatory impact’.^[34] However, it also notes that the amendments would apply to current court matters:

The Bill will apply to matters currently before the Court. This is appropriate as the Bill will provide interpretive guidance to the Court on provisions of the Act whose operations may otherwise be in dispute. The validation provisions remove any ambiguity that may exist with regards to sanctions listings decisions.^[35]

1.13 It would appear, therefore, that the capacity for the current regime to validly sanction persons in relation to certain prior conduct, and in cases where it is not apparent that the minister has considered their discretionary powers, has been called into question in some respect.^[36] Consequently, the proposed amendments would either confirm the existing capacity to sanction persons, or extend that capacity (depending, it would appear, on the legal interpretation that may have been made by a court). In either case, by amending provisions relating to how the sanctions regime operates, it is necessary to examine the sanctions regime as a whole when considering its compatibility with human rights law. This committee has, for over a decade, raised concerns regarding the human rights compatibility of the sanctions regime.^[37]

1.14 Sanctions may operate variously to both limit and promote human rights. For example, sanctions targeting the proliferation of weapons of mass destruction will promote, in general terms, the right to life. Sanctions imposed to address serious violations or serious abuses of human rights could help to promote human rights globally. The statement of compatibility identifies that the sanctions regime promotes the protection of human rights.^[38]

1.15 The mandate of this committee is to consider whether legislation is compatible with Australia’s international human rights obligations under seven core international human rights law treaties.^[39] Under those treaties, Australia has an obligation to uphold human rights to all those within its jurisdiction.^[40] As such, for persons designated or declared under the sanctions regime who are not in Australian territory, or otherwise under Australia’s effective control, limited human rights obligations apply. On this basis, the committee's examination of Australia's sanctions regimes has been, and is, focused on measures that impose restrictions on individuals that may be located in Australia. As the sanctions legislation empowers the minister to designate or declare a person within Australia as subject to the regime, it is necessary for the committee to consider the compatibility of the sanctions regime with human rights as it may apply to persons in Australia.

1.16 Under the autonomous sanctions regime, the effect of a designation is that it is an offence for a person to make an asset directly or indirectly available to, or for the benefit of, a designated person.^[41] A person's assets are therefore effectively 'frozen' as a result of being designated. For example, a financial institution is prohibited from allowing a designated person to access their bank account. This can apply to persons living in Australia or could apply to persons outside Australia. A designation by the minister is not subject to merits review, and there is no requirement that an affected person be given any reasons for why a decision to designate them has been made. This bill, in validating sanctions made where the minister did not consider whether to exercise their discretion to designate a person, would appear to confirm concerns that designations may be made without reasons being provided.

1.17 The sanctions scheme also provides that the minister may grant a permit authorising the making available of certain assets to a designated person.^[42] An application for a permit can only be made for basic expenses, to satisfy a legal judgment or where a payment is contractually required.^[43] A basic expense includes foodstuffs; rent or mortgage; medicines or medical treatment; public utility charges; insurance; taxes; legal fees and reasonable professional fees.^[44]

1.18 The scheme also enables the minister to declare that persons are subject to a travel ban, which would prevent the person from travelling to, entering or remaining in Australia.^[45]

1.19 The designation or declaration of a person in Australia under the sanctions regime may therefore limit a range of human rights,^[46] in particular the right to a private life; right to an adequate standard of living; right to a fair hearing; protection of the family; and freedom of movement. The statement of compatibility states that the bill engages criminal process rights and the prohibition against retrospective criminal laws, but does not limit these rights, and that the bill otherwise does not limit human rights.^[47]

1.20 The committee has previously held that the use of international sanctions regimes to apply pressure to governments and individuals in order to end the repression of human rights may be regarded as a legitimate objective for the purposes of international human rights law. However, there are concerns that the sanctions regime may not be regarded as proportionate, in particular because of a lack of effective safeguards to ensure that the regime, given its potential serious effects on those subject to it, is not applied in error or in a manner which is overly broad in the individual circumstances.^[48]

1.21 For example, the minister may designate or declare a person as subject to sanctions on the basis that the minister is 'satisfied' of a number of broadly defined matters, with no legislative criteria as to how the minister determines these matters.^[49] There is also no provision for merits review before a court or tribunal of the minister's decision. While the minister's decision is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), the effectiveness of judicial review as a safeguard within the sanctions regime relies, in significant part, on the clarity and specificity with which legislation specifies powers conferred on the executive. The scope of the power to designate or declare someone is based on the minister's satisfaction in relation to certain matters which are stated in broad terms. This formulation limits the scope to challenge such a decision on the basis of there being an error of law (as opposed to an error on the merits) under the ADJR Act. Judicial review will generally be insufficient, in and of itself, to operate as an adequate safeguard for human rights purposes in this context.

1.22 Further, the minister can make a designation or declaration without hearing from the affected person before the decision is made. While the initial listing may be necessary to ensure the effectiveness of the regime, as prior notice would effectively 'tip off' the person and could lead to assets being moved off-shore, there may be less rights-restrictive measures available, such as freezing assets on an interim basis until complete information is available including from the affected person.

1.23 Further, once the decision is made to designate or declare a person, this remains in force for three years and may be continued after that time.^[50] The designation may be continued by the minister declaring in writing that it continues to have effect, but such a declaration is not a legislative instrument. It is not clear if designations are regularly reviewed and updated. There also does not appear to be any requirement that if circumstances change or new evidence comes to light the designation or declaration will be reviewed before the three-year period ends. Without an automatic requirement of reconsideration if circumstances change or new evidence comes to light, a person may remain subject to sanctions notwithstanding that the designation or declaration may no longer be required.

1.24 There is also no requirement to consider whether applying the ordinary criminal law to a person would be more appropriate than freezing the person's assets on the decision of the minister. While the imposition of targeted financial sanctions may be considered, internationally, to be a preventive measure that operates in parallel to complement the criminal law, without further guidance (such as when and in what circumstances complementary targeted action would be needed) there appears to be a risk that such action may not be the least restrictive of human rights in every case.

1.25 With respect to the proposed measures in this bill, confirming that past conduct/status is validly captured by the sanctions framework would allow, or otherwise continue to facilitate, the potentially broad application of sanctions. For example, it would confirm that a person may be subject to a sanction while in Australia, where their conduct which gave rise to the sanction occurred decades prior, and no concerns regarding current risk arise in relation to them. Further, by confirming the validity of sanctions ‘in circumstances where the exercise of the Minister’s discretion may not be explicitly clear’ the bill would further confirm the minister’s very broad discretionary power to order sanctions. In this regard, there are also existing concerns relating to the minister's unrestricted power to impose conditions on a permit to allow access to funds to meet basic expenses. Giving the minister an unfettered power to impose conditions on access to money for basic expenses does not appear to be the least rights restrictive way of achieving the legitimate objective.

1.26 The committee has previously found that there is a risk that the autonomous sanctions regime may be incompatible with the right to a fair hearing, right to privacy, right to protection of the family, right to an adequate standard of living and the right to freedom of movement. In the absence of legislative amendments to restrict the application of the autonomous sanctions regime to only those located outside Australia, or to implement safeguards such as those previously recommended by the committee^[51], expanding (or otherwise confirming) the application of the autonomous sanctions regime as proposed by this bill also risks being incompatible with those rights.

1.27 The committee considers that sanctions regimes operate as important mechanisms for applying pressure to regimes and individuals with a view to ending the repression of human rights internationally. The committee notes the importance of Australia acting in concert with the international community to prevent egregious human rights abuses arising from situations of international concern.

1.28 However, the committee regards it as important to recognise that the sanctions regime operates independently of the criminal justice system, and can be used regardless of whether a designated or declared person has been charged with or convicted of a criminal offence. For those in Australia who may be subject to sanctions, requiring ministerial permission to access money for basic expenses could, in practice, impact greatly on a person's private and family life. The committee notes that the minister, in making a designation or declaration, is not required to hear from the affected person at any time; or provide reasons; and there is no provision for merits review of any of the minister's decisions (including any decision to grant, or not grant, a permit allowing access to funds). The committee considers that the measures proposed in this bill would further confirm this broad ministerial discretion. As the sanctions regime could be applied to persons ordinarily resident in Australia, the committee considers that confirming the basis on which sanctions can be imposed engages and limits a number of human rights. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

1.29 The committee has previously found that there is a risk that the autonomous sanctions regime may be incompatible with the right to a fair hearing, right to privacy, right to protection of the family, right to an adequate standard of living and the right to freedom of movement. As such, this bill, by validating actions taken under the autonomous sanctions regime, also risks being incompatible with those rights.

1.30 The committee reiterates its long-held view that the compatibility of the sanctions regime may be assisted were the autonomous sanctions legislation amended to include the safeguards previously recommended by the committee.^[52]

1.32 The committee otherwise draws its human rights concerns to the attention of the minister and the Parliament.

^[28] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Autonomous Sanctions Amendment Bill 2024, Report 2 of 2024; [2024] AUPJCHR 10.

^[33] Deripaska v Minister for Foreign Affairs [2024] FCA 62. See, in particular, paragraphs [122]–[176] in which the court considered an argument regarding whether the minister misunderstood the nature of the power being exercised by failing to appreciate the scope of her discretion, and whether she was aware of her discretion to designate and declare, neither designate nor declare, and designate or declare the applicant and other matters.

^[36] In this regard it is noted that Kennett J, of the Federal Court of Australia, in Deripaska v Minister for Foreign Affairs [2024] FCA 62 , did not accept the arguments made by the applicant (the sanctioned person) in relation to the exercise of the minister’s discretion.

^[40] For instance, article 2(1) of the International Covenant on Civil and Political Rights requires states parties ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’.

^[46] If a declared person living in Australia had their visa cancelled, this may also engage Australia’s non-refoulement obligations. Further, country-specific designations or declarations may engage and limit the right to non-discrimination. For further discussion, see Parliamentary Joint Committee on Human Rights, Report 6 of 2018 (26 June 2018) pp. 104–131.

^[51] The committee has previously recommended there be: (a) the provision of publicly available guidance in legislation setting out in detail the basis on which the minister decides to designate or declare a person; (b) regular reports to Parliament in relation to the sanctions regime including the basis on which persons have been designated or declared and what assets have been frozen, or the amount of assets; (c) provision for merits review before a court or tribunal of the minister's decision to designate or declare a person is subject to sanctions; (d) regular periodic reviews of designations and declarations; (e) automatic reconsideration of designations and declarations if new evidence or information comes to light; (f) limits on the power of the minister to impose conditions on a permit for access to funds to meet basic expenses; (g) review of individual designations and declarations by the Independent National Security Legislation Monitor; (h) provision that any prohibition on making funds available does not apply to social security payments to family members of a designated person (to protect those family members); and (i) consultation with operational partners such as the police regarding other alternatives to the imposition of sanctions. See most recently Parliamentary Joint Committee on Human Rights, Report 1 of 2024 (7 February 2024) pp. 94–110; See also Report 9 of 2016 (22 November 2016) p. 53; Report 6 of 2018 (26 June 2018) pp. 128–129; and Report 2 of 2019 (2 April 2019) p. 122.

^[52] See footnote 43, and most recently Parliamentary Joint Committee on Human Rights, Report 1 of 2024 (7 February 2024) pp. 94–110; See also Report 9 of 2016 (22 November 2016) p. 53; Report 6 of 2018 (26 June 2018) pp. 128–129; and Report 2 of 2019 (2 April 2019) p. 122.

Australian Parliamentary Joint Committee on Human Rights

Autonomous Sanctions Amendment Bill 2024 - New and Ongoing Matters [2024] AUPJCHR 10 (20 March 2024)