Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

by leave—I move:

(1)—Clause 1, page 1 (lines 5 and 6), omit "Autonomous Sanctions Amendment (Thematic Sanctions) Act 2021", substitute "Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Act 2021".

(2)—Schedule 1, item 4, page 3 (line 25), at the end of subsection 3(3), add:

; (f) serious violations of international humanitarian law.

The amendments at item (2) goes to an expansion of the themes under which sanctions may be implemented to include serious violations of international humanitarian law. We are also, as flagged in my speech, seeking to move changes to the title of the legislation to include 'Magnitsky-style and Other Thematic Sanctions'.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

The government supports both these amendments—in the interests of time!

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I thank the government for its support.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I would indicate that we will also support these amendments. In particular, I think that amending the title to refer to Magnitsky is a very important amendment, so we're very happy to support it.

Question agreed to.

I move:

(1) Page 2 (after line 11), after clause 3, insert:

4 Review of operation of amendments

(1) The Joint Standing Committee on Foreign Affairs, Defence and Trade must commence a review of the operation of the amendments made by this Act as soon as possible after the end of 3 years after this Act commences.

(2) The Committee must prepare a written report of the review.

(3) The Committee must table the report in each House of the Parliament.

This amendment requires the Joint Standing Committee on Foreign Affairs, Defence and Trade to undertake a review of the operation of the amendments in the bill three years after it commences. This reflects recommendation 28 of the review and committee report by the Joint Standing Committee on Foreign Affairs, Defence and Trade.

Clearly, this is an important and significant step forward in our sanctions regime. I think that having this review process is also going to be incredibly important, to see just how many people are being sanctioned and what they're being sanctioned for—all of the issues that need to be reviewed. I understand that there's now going to be support for this amendment by the government, which I'm very thankful for and very pleased to acknowledge. Having this review process in the legislation I think is a significant improvement.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

The government supports this amendment.

Question agreed to.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

by leave—I move:

(1) Clause 2, page 2 (table item 1), omit the table item, substitute:

(2) Schedule 1, heading, page 3 (line 1), after "Amendments", insert "relating to thematic sanctions".

(3) Page 5 (after line 13), at the end of the Bill, add:

Schedule 2 — Amendments relating to targeted sanctions for human rights violations

Autonomous Sanctions Act 2011

1 After paragraph 3(1)(b)

insert:

(ba) require the Minister to inform the Parliament about the application of autonomous sanctions for serious violations or serious abuses of human rights; and

2 Section 4

Insert:

associated entity: an entity is an associated entity in relation to a person if:

(a) the person controls, whether alone or jointly with another person and whether directly or indirectly:

(i) at least 50% of the total value of the issued share capital of the entity; or

(ii) at least 50% of the rights to distributions of capital or profits of the entity; or

(iii) the right to cast at least 50% of the maximum number of votes that might be cast at a general meeting (however described) of the entity; or

(iv) the right to appoint or remove a majority of the members of the board or other group of persons responsible for the administration or management of the affairs of the entity; or

(b) the person has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the entity.

However, an entity is not an associated entity in relation to a person if the person is an external administrator (within the meaning of Schedule 2 to the Corporations Act 2001) of the entity, or holds a similar position under a law of a foreign country.

human rights has the same meaning as in the Human Rights (Parliamentary Scrutiny) Act 2011.

3 After Part 2

Insert:

Part 2A — Ministerial statements on sanctions relating to human rights

15A Minister must give statement on request by Parliam ent

(1) This section applies if a resolution is passed by:

(a) either House of the Parliament; or

(b) the Joint Standing Committee on Foreign Affairs, Defence and Trade; or

(c) the Human Rights Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade; or

(d) the Senate Foreign Affairs, Defence and Trade Legislation Committee;

requiring the Minister to prepare a statement in accordance with subsection (2) in relation to:

(e) a person; or

(f) a person and any associated entity of the person.

(2) The Minister must prepare a statement setting out:

(a) whether, in the Minister's opinion, the person is responsible for serious violations or serious abuses of human rights; and

(b) whether autonomous sanctions will be applied to the person or associated entity; and

(c) if autonomous sanctions will be applied—a description of those autonomous sanctions; and

(d) if autonomous sanctions will not be applied—the reasons why autonomous sanctions will not be applied; and

(e) details of any consultations undertaken by the Minister in preparing the statement, including any consultations with civil society.

(3) The Minister must table the statement in both Houses of the Parliament within 120 days after the day the resolution is passed.

15B Minister m ust give statement in relation to Myanmar

(1) The Minister must, within 30 days after the day on which this section commences:

(a) prepare a statement in relation to the 2021 coup d'etat in Myanmar; and

(b) table the statement in both Houses of the Parliament.

(2) The statement must set out:

(a) whether each person to whom subsection (3) applies is, in the Minister's opinion, responsible for serious violations or serious abuses of human rights; and

(b) whether autonomous sanctions will be applied to those persons or associated entities of those persons; and

(c) if autonomous sanctions will be applied—a description of those autonomous sanctions; and

(d) if autonomous sanctions will not be applied—the reasons why autonomous sanctions will not be applied; and

(e) details of any consultations undertaken by the Minister in preparing the statement, including any consultations with civil society.

(3) This subsection applies to a person if:

(a) the person is:

(i) a former member of the State Peace and Development Council (SPDC); or

(ii) a person who the Minister is satisfied is a business associate of the Myanmar military; or

(iii) a current or former minister or a current or former deputy minister; or

(iv) a current or former military officer of the rank of Brigadier-General or higher; or

(v) a senior official in any of Myanmar's security or corrections agencies; or

(vi) a current or former senior officeholder of the Union Solidarity and Development Party (USDP) or the Union Solidarity and Development Association (USDA); or

(vii) a senior official or executive in a state-owned or a military-owned enterprise; or

(viii) an immediate family member of a person mentioned in any of subparagraphs (i) to (vii); or

(ix) any other person that the Minister may designate as a designated person or declare as a declared person for Myanmar under subregulation 6(1) of the Autonomous Sanctions Regulations 2011; and

(b) the person is, or has been, responsible for, or complicit in, the 2021 coup d'etat in Myanmar.

These amendments go to the issue of who ends up being sanctioned and the process of determining who ends up being sanctioned. As I foreshadowed in my speech in the second reading debate, the Greens think it's very important that these amendments would create an established and transparent pathway for referrals. It's fundamental, because if this bill is genuinely to create a framework for protecting human rights—and not simply creating a targeted sanctions regime as a tool that can be used to pick and choose who you are sanctioning—there has to be a capacity for an established, transparent pathway for human rights abusers to be nominated. It shouldn't depend on whether they are our allies, and nor should it depend on any narrow definition of what is determined by the minister to be in our 'national interest'.

I want to go to the issue of Myanmar, where the minister has determined it's not in our national interest to sanction the human rights abusers, the members of the junta who undertook the coup in Myanmar—because it has been determined that it's not in our national interest. It is so important that we actually have a transparent, accountable pathway so that civil society and others can be putting forward nominations, and they can be investigated and they can be reported on. The measures here lay out those sorts of processes and lay out the need for the minister to give a statement on request by parliament, in particular, in the case of Myanmar. And Myanmar is a really important case in point, because we've had the ability to be imposing sanctions on Myanmar. The minister had the ability to do so under our existing legislation, but she has chosen not to. And so, actually having that transparent pathway for individuals to be proposed is very significant.

I want to ask some questions of the minister relating to Myanmar, because I think it goes to the point of where this bill now needs to be strengthened. Minister, on 5 October you made the Autonomous Sanctions (Designated and Declared Persons—Myanmar) Amendment (Continuation of Effect) Instrument 2021. Did you seek advice from the department about adding names to that list?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I thank Senator Rice for her question. I have engaged regularly with both the department and the post and with counterparts on these questions, including in relation to sanctions issues. I want to be very clear, Acting Deputy Chair, that I have said many times that our policy settings, including sanctions, are kept under active consideration. That is absolutely right, and, in fact, the case to which Senator Rice refers validates that. I've always said that I do not rule out the application of sanctions, and we are continuing to actively consider our response. Those options are on the table, including pursuant to these reforms. We, of course, respect the efforts of partners who have determined that imposing sanctions is the most appropriate measure for them. At this point, as the senator knows, because we have discussed this at some length across a number of estimates processes as well, that is not Australia's view.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

CE (—) (): That goes to the point that it's not Australia's view. But there is no transparent process that people can be part of and that the community can be part of as to why or why not targeted sanctions are being applied, or not being applied, for people who are absolutely—there is no doubt whatsoever—human right abusers, who would be eligible under this legislation as it stands, and certainly under the revised legislation, to have sanctions taken against them. Minister, in the Autonomous Sanctions (Designated and Declared Persons—Myanmar) Amendment (Continuation of Effect) Instrument 2021 you maintained the designation of five people: Aung Kyaw Zaw, Maung Maung Soe, Aung Aung, Than Oo and Khin Maung Soe. Did you consider sanctioning Min Aung Hlaing, the commander-in-chief and the leader of the coup, when you made that designation?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I don't have anything to add to my previous response.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I don't want to take up too much time in the chamber as I know the time constraints we are under. Can I confirm, however, Minister, that, even under the revised legislation that we will be approving today, your process, and your decision to not impose sanctions on the leader of the coup so far, would remain unchanged?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

No, Senator, and I refer you to my previous response, where I said that these are matters that are kept, maintained, under review.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

Minister, if we had had this revised legislation, your decision, up until now, to not impose sanctions would still have been possible under this legislation.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

Senator Wong, were you seeking the call?

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I don't want to interrupt the flow of questioning, but, if I might just indicate Labor's position—if that's alright with Senator Rice—Labor is not supportive of these amendments. I do want to just make two points, though. The first, in relation to Myanmar, is that we have taken a different view to that which Senator Payne has outlined, and we do believe that—given the attack on the democratic transition, given the violence that has been perpetrated against citizens, given the participation in and the execution of a coup against the government of the day and given Australia's length of engagement in the democratic transition—there is a case for additional targeted sanctions against those responsible for the violence, and I placed that on the record in the second reading debate.

Having said that, really the way to understand Senator Rice's amendments on sheet 1502 is that they go to the relative roles of the executive and the parliament. On this, we do have a different view to that of the Australian Greens. We may not agree with the government's decisions in relation to which sanctions it seeks to impose or not impose, but we do think that, in our system, the government of the day has to make that decision, considering all of the information which is available to government. So we are not supportive of the schema that is laid out in Senator Rice's amendments, which essentially provides to the parliament a much greater engagement on what we think is really the responsibility of executive government. It's a responsibility which, at times, governments may not exercise in the way the opposition thinks it might, or, if the shoe were on the other foot, the coalition, the now government, thinks is correct, and certainly the minor parties. But these are significant decisions, they are important decisions and they are not decisions which are made for symbolism; they are decisions which are made soberly around how we progress Australia's national interests, which include, as this deals with, ensuring that we seek to shape the world for the better through what we do in foreign policy.

I do think there is a place for consultation, which is one of the themes of the amendment that Senator Rice has moved. Certainly we gain a great deal from our consultation with human rights NGOs. They have participated in discussions with us which have informed our amendments. I would assume any party of government would do so. But, ultimately, we do believe these decisions are matters which ought be made in the best judgement of whoever is responsible—executive government—at the time they're being made.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I did want to clarify—and it goes to the point, the heart, of this—that this does not take away the power of the minister to make that decision; it does not take away the power of the executive government. It lays out a transparent pathway. It sets out that the minister must prepare a statement setting out whether, in the minister's opinion, the person's responsible for serious violations or abuses of human rights; whether autonomous sanctions will be applied to the person or associated entity; and, if they'll be applied, a description of those autonomous sanctions; and, if they won't be applied, the reason why autonomous sanctions will not be applied.

It's basically making it transparent, and much more objective, than having the potential for decisions on who is sanctioned being made on a judgement from the minister on these opaque grounds of national interest or of our relationship with other countries, which means that we could have a sanctions regime where we pick and choose. We can decide, 'Yes, we're going to sanction human rights abuses occurring here,' but not sanction others elsewhere because it's not seen to be in our national interest, despite the fact that they may be just as egregious. If it's determined to be not in our national interest by the minister—and there is no process for setting out an assessment process—then nothing will occur.

My point is that this does nothing. It maintains the power of the minister and the executive government to still be the ones to decide on sanctions; it just makes the process fairer and clearer.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I thank Senator Rice and Senator Wong for their contributions. Senator Wong has made some salient points, particularly in relation to the role of the executive. I say to the chamber that the decisions that are made are already subject to parliamentary scrutiny. They are legislative instruments, including the scrutiny by the Senate Standing Committee for the Scrutiny of Delegated Legislation. They are disallowable by the parliament.

I think it is important to acknowledge the points that have been made in relation to the clear and plain fact that, from time to time, governments will need to exercise judgement in relation to these matters, based on all of the information that is available to them in the context of the sorts of issues that have to be considered—in particular, in the application of sanctions, which is obviously a very serious and very considered decision to be taken by a government. We have also said in the past that the suggestion that prior notice be given to parliament does rather defeat the purpose of these steps if it gives potential sanctions targets an opportunity to move or conceal assets. That would ultimately dilute the purpose of listings as well.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I want to go to the other part of this amendment on sheet 1502, particularly the part on the minister giving a statement in relation to Myanmar. We have heard the reasons we need a transparent process as to why or why not sanctions are being imposed, which we currently don't have. This amendment would make the minister give a statement as to whether people who have been proposed for sanctions are responsible for serious violations or abuses of human rights, whether or not sanctions will be applied, and the details of any consultations undertaken by the minister in preparing the statement. This goes to the holes in our current sanctions regime and the holes that will still be there even when we pass these amendments today.

We have heard that the information that has so far been informing you, Minister, on why not to apply sanctions are that it's not in our national interest and that it's not conducive to maintaining a good relationship with ASEAN. In terms of ASEAN, do you think, Minister, that the strategy so far is working? We have welcomed ASEAN's decision to uninvite Min Aung Hlaing from upcoming meetings, but other participants in the junta have participated in ASEAN meetings. Do you think that the strategy of maintaining that good relationship with ASEAN is working in terms of applying appropriate pressure on the leaders of the coup in Myanmar?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I take the point that Senator Rice is making in relation to Myanmar. We have, as I've previously advised the chamber, discussed these matters at length in the estimates context. I would be happy, as I have previously done this week, to meet again with the Joint Standing Committee on Foreign Affairs, Defence and Trade in relation to these matters. But I do not think that this is an appropriate amendment for this bill; it's not in the right place. If the Senator wishes to take up this issue in a more appropriate construct, then of course the chamber would consider that.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

Thank you, Minister. I look forward to taking you up on that offer. Again, with regard to our relationship with ASEAN and Myanmar, the Philippines foreign secretary told the Lowy Institute recently that if ASEAN did not take a tough stand on Myanmar, it risks being perceived as 'bunch of guys who always agree with each other on the worthless things'. Minister, do you think ASEAN has taken a tough stand on Myanmar?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

On 24 April the leaders of 10 ASEAN nations met in Jakarta to address the crisis in Myanmar and the impact of the coup by the regime. To bring that meeting together, not only in the context of COVID but also given the history of ASEAN, was a significant step for those leaders. To determine the development of the five points of consensus, which were brought together as a result of that meeting and the appointment, ultimately, of a special envoy in the person of the second foreign minister of Brunei, Darussalam Erywan, was also a very significant step. I acknowledge—as I have acknowledged publicly elsewhere—that the lack of goodwill which has been displayed by the regime in Myanmar in relation to that has not helped with ASEAN's efforts to advance their response and their engagement. But Australia strongly supports the work of ASEAN in this regard, the work of the special envoy, and all endeavours for that approach by ASEAN to progress.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

Minister, given that we haven't applied further targeted sanctions on Myanmar so far—and I take your point that it's still open, and I'm looking forward to that further consideration of it—given that there are so many people here in Australia, Myanmar diaspora community members and others who are desperately con concerned to see action taken against the coup leaders, and given that, without this amendment, the legislation is not going to change the situation and will continue to enable you to fairly opaquely decide whether or not to apply sanctions to the coup leaders in Myanmar, what do you say to the people of Myanmar, the diaspora members and community members here in Australia who say that Australia is not doing enough and that people are dying while Australia adheres to a failed strategy?

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

I would respectfully not agree, Senator, with that interpretation. As a minister in the government with responsibility for these matters, there is an expectation that I would take into account—that the foreign minister of our nation would take into account—our interests, our objectives and the best options to achieve outcomes, and ultimately these reforms are about Australia's interests as well as the issues that have been discussed in other remarks today.

Senator, in the interests of time I am not going to reiterate all of the steps that Australia has taken in relation to Myanmar. But, again, you and I have discussed those in our estimates exchanges. I have reiterated my strong support for the ASEAN initiatives in relation to addressing this. I share the frustration of a number of ASEAN members, which has been expressed publicly in relation to this. I share concerns, particularly in terms of operational support for the military, for the Tatmadaw. We have joined calls and led calls for the ceasing of the transfer of arms, materiel, dual use equipment and technical assistance to the ministry and its representatives. We already have an arms embargo, and we are supportive of calls for a global arms embargo and will continue to do that. But I don't agree with the proposition that you are putting—that this amendment should be included in this bill for this purpose. I don't think it is the appropriate place.

Question negatived.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I would like it recorded that the Australian Greens voted aye for those amendments. I seek leave to move Greens amendments(1) to (6) on sheet 1508 together.

Leave granted

I move Greens amendments (1) to (6) on sheet 1508 together.

(1) Schedule 1, item 4, page 3 (line 25), at the end of subsection 3(3), add:

; (f) failures to comply with international human rights law or international humanitarian law.

(2) Schedule 1, item 6, page 4 (line 16), at the end of subsection 10(4), add:

; and (e) if the proposed proscription addresses a matter mentioned in paragraph 3(3)(d) or (f)—the Minister must consider any credible information provided by a civil society organisation that monitors violations or abuses of human rights or has expertise in international human rights law or international humanitarian law.

(3) Schedule 1, item 6, page 4 (line 30), at the end of subsection 10(5), add:

; and (e) if the proscription addresses a matter mentioned in paragraph 3(3)(d) or (f)—the Minister must consider any credible information provided by a civil society organisation that monitors violations or abuses of human rights or has expertise in international human rights law or international humanitarian law.

(4) Schedule 1, item 6, page 4 (after line 33), at the end of the item, add:

(7) The regulations must prescribe one or more processes under which a civil society organisation may provide information to the Minister as mentioned in paragraphs (4)(e) and (5)(e).

(8) Without limiting subsection (7), the regulations may provide for any of the following:

(a) the Minister to convene regular meetings with civil society organisations;

(b) the Minister to convene such other meetings with civil society organisations as are necessary to respond to an international crisis;

(c) opportunities for civil society organisations to provide information in confidence to the Minister;

(d) the development of strategies and guidelines for ministerial and departmental engagement with civil society organisations.

(5) Schedule 1, page 4 (after line 33), after item 6, insert:

6A Before section 28

Insert:

27A Annual report on sanctions

(1) The Minister must prepare a report on the autonomous sanctions applied under this Act during each calendar year.

(2) The Minister must table a copy of the report in each House of the Parliament within 15 sitting days of that House after the end of the calendar year to which the report relates.

(6) Schedule 1, item 7, page 5 (after line 13), at the end of the item, add:

(5) Section 27A of the Autonomous Sanctions Act 2011, as inserted by this Schedule, applies in relation to calendar years beginning on or after the commencement of this item.

These amendments reflect recommendations of the joint standing committee and our consultation with civil society. We think they will significantly improve the framework and the capacity of civil society to engage on the issues that are being addressed—whether to apply targeted sanctions while not distracting from the minister's powers.

Marise Payne (NSW, Liberal Party, Minister for Foreign Affairs) Share this | Link to this | Hansard source

The government does not support the amendment. We have always considered credible information that is provided to us by civil society and we will continue to do that, including conducting regular consultation. We receive suggestions for sanctions listing from a range of sources. It's absolutely the expectation that that would continue, and I know what a constructive role that non-government organisations have played in the development of this legislation and in these discussions today. Any individual or organisation can make representations to government regarding the potential sanctions targets. We have dealt with some of the other aspects of the amendments on 1508 already.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.