The Australian government may sanction individuals and entities as either a part of a United Nations Security Council (UNSC) sanction or an Australian autonomous sanction. Sanctions are measures not involving the use of armed force that are imposed in situations of international concern, and generally intend to cause economic repercussions to the target of the sanctions.
Process of designating individuals or corporations to be sanctioned
The Australian Government is empowered to impose sanctions under the Autonomous Sanctions Act 2011 (ASA) and Autonomous Sanctions Regulations 2011 (ASR). The legislation makes it an offence to violate sanctions, regulates the imposing of sanctions, and sets out the Australian government’s information-gathering powers regarding autonomous sanctions.
Autonomous Sanctions Act (ASA)
The ASA allows the Governor-General on advice from the Minister for Foreign Affairs (designated by the Administrative Arrangements Orders as the Minister responsible for administration of the Act) to apply sanctions through the Regulations that relate to:
- Proscribing of persons or entitles (s 10(1)(a) of the ASA),
- Restriction or prevention of the supply, sale or transfer of goods, and the use, dealings and availability of assets (s 10(1)(b) and (c) of the ASA),
- Indemnities for acting in compliance with these regulations (s 10(1)(e) of the ASA), and
- The provision of compensation for owners of assets that are affected by any regulation made under the above provisions (s 10(1)(f) of the ASA).
Autonomous Sanctions Regulations (ASR)
The ASR facilitates the conduct of Australia’s relations with sanctioned countries, and with specific designated entities or persons outside Australia. The ASR sets out and defines various types of prohibited activities with designated entities or persons, including dealing with their assets, and the permit system to authorise engaging with sanctioned entities or persons.
To list a person or entity, the Minister for Foreign Affairs must undertake a two-step process.
- First, the Minister must advise the Governor-General to amend the ASR to identify the targeted country and the activities for which a person or entity could be designated.
- Second, the Minister must make a second instrument to designate a specific person or entity, pursuant to ASR reg 6(1). The Minister must be satisfied that the person or entity meets a range of criteria set out in ASR reg 6.
The current criteria for imposing sanctions is framed by reference to specific countries; however ASR reg 6A(1) allows for the listing of a person or entity if they are contributing to the proliferation of weapons of mass destruction without the requirement that the conduct in question is related to a particular nation.
The Russia sanctions regime
Australia has imposed autonomous sanctions on Russia in response to the Russian invasion of Ukraine. For the Minister to designate an individual or entity in relation to the Russia sanctions regime, the targeted individual or entity must meet one of the following criteria under ASR reg 6:
|6A||Russia||(a) A person or entity that the Minister is satisfied is, or has been, engaging in an activity or performing a function that is of economic or strategic significance to Russia.
(b) A current or former Minister or senior official of the Russian Government.
(c) An immediate family member of a person mentioned in paragraph (a) or (b).
For example, if the specific person or entity has significant economic interests in Russia which benefit its economy, then they have met the criteria to be designated. However, if they do not meet these criteria, they will not be designated. Each of the sanction regimes have such specific criteria under ASR reg 6.
Challenging a designation
A designated person or entity can make a request to be de-listed through DFAT’s Sanctions Contact Page.