Sanctions 2024

Last Updated August 13, 2023

Australia

Law and Practice

Authors



Nyman Gibson Miralis is an international, award-winning criminal defence law firm based in Sydney, Australia. For more than 55 years, the firm has been leading the market in all aspects of general, complex and international crime, and is widely recognised for its involvement in some of Australia’s most significant criminal cases. Nyman Gibson Miralis’ international law practice focuses on white-collar and corporate crime, transnational financial crime, international sanctions, bribery and corruption, international money laundering, cybercrime, international asset freezing/forfeiture, extradition and mutual assistance law. The team strategically advises and appears in matters where cross-border investigations and prosecutions are being conducted in parallel jurisdictions, involving some of the largest law enforcement agencies and financial regulators worldwide. Working with the firm’s international partners, Nyman Gibson Miralis has advised and acted in investigations involving the USA, Canada, the UK, the EU, China, Hong Kong, Singapore, Taiwan, Macao, Vietnam, Cambodia, Russia, Mexico, South Korea, the British Virgin Islands, New Zealand and South Africa.

During the past 12 months, there has been a steady deceleration in Australia’s use of sanctions overall and peripheral tinkering on the edges of the Australian framework as multiple reviews are underway. It remains to be seen whether this signals a long-term shift in Australia’s formal approach to sanctions (reflecting a change in guard with the Labor Party being elected in 2022), merely a pause for review, or the result of other external factors.

Although COVID-19 impacted the primary regulator’s co-operative and educative regulatory approach in conducting traditional outreach sessions, no further reports have been made to this effect and many consider the Australian sanctions sector to have returned to normal operations.

Further details on the 2023–24 trends are canvassed in 1.2 Key Trends.

Statistics on the Use of Sanctions

As of July 2024, approximately 3,052 individuals and entities were designated under Australian sanctions regimes according to the Consolidated List. From an examination of the Consolidated List, the following observations can be made.

  • There has been a deceleration of sanctions use – of the sanctions still in force, the majority have been imposed in the past three years, with the largest portion (40%) being issued in 2022, followed by 27.2% in 2023 and 14% in 2024. This aligns with the Global Sanctions Index, which records sanctions use in Australia as decelerating to (but still growing at) a rate of 7.7% between 2023–24, where it had been increasing by 26.6% between 2022–23.
  • Australia’s overall focus with sanctions remains on the Russia–Ukraine conflict ‒ almost 50% of in-force sanctions (from 2003 to 2024) relate to the autonomous sanction regimes concerning Russia and Ukraine.
  • Australia’s 2024 focus is shifting – since the beginning of 2024, an almost equal amount of individuals and entities have been designated under the autonomous sanctions regimes relating to Syria (25.3%), Russia (24.1%) and Iran (23.2%).
  • There has been an incremental increase in the use of Magnitsky-style sanction instruments – since the introduction of the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Regulations 2021 (Cth) (the “Magnitsky-style Regulations”) in December 2021, Australia has been incrementally using these powers, with five of the nine instruments being issued in the past eight months. Notably, these sanctions include Australia’s first use of the Magnitsky-style Regulations for malicious cyber-activity (against Aleksandr Ermakov), soon followed by its second use (against Dmitry Yuryevich Khoroshev), as well as Australia’s designation of seven Israeli citizens and one entity in respect of violence in the West Bank as part of the ongoing Israel‒Palestine conflict.

Statistics on Permits

Statistics on reports, contraventions, enforcement action and permits are largely undisclosed to the general public. In July 2021, the Department of Foreign Affairs released a “Sanctions Regulator Performance – Self-Assessment Report” disclosing that in 2020–21 there were 55 permit applications finalised (where the Australian Sanctions Office (ASO) assessed that a sanctions permit was required).

Co-ordinated Sanctions

Australia continues to impose sanctions in co-ordination with the UK and the USA. All three governments have sanctioned key figures in cybercrime networks and the financial networks of Hamas and Palestinian Islamic Jihad.

Court Proceedings and Enforcement Action

The slow trickle of judicial decisions on Australia’s sanctions regimes has begun to pick up pace, with judgments being released concerning both contractual law and administrative law. However, there remains a distinct lack of enforcement cases commencing, or enforcement action being publicly announced. This absence may be a result of the enforcement agencies’ co-operative approach, working with public and regulated entities to ensure compliance. The Australian government may be looking to change this approach, as it asked for public consultation on whether civil penalties would be a suitable enforcement mechanism in the sanctions context in the review of the autonomous sanctions regime between January and February 2023.

Funding

On 14 May 2024, the Australian government announced their Budget 2024–25, which included increased funding to strengthen the capability of the Department of Foreign Affairs and Trade (DFAT) and specifically allocating AUD26.4 million over 2024–28 (with AUD6.6 million per year ongoing) to strengthen monitoring and enforcement of Australia’s sanctions regimes, building on the 2023‒24 measures.

Sanctions can be imposed on individuals irrespective of their industry, which in turn impacts how other individuals and entities can interact with the designated. Commonly, financial industries are particularly affected by any sanction, given the requirement that assets of designated individuals must be frozen.

Australian sanctions can be targeted towards specific industries. By way of example:

  • the sanctions concerning Syria have an express focus on the oil and gas industry or the petrochemical industry; and
  • the sanctions concerning the Democratic People’s Republic of Korea (“North Korea”) expressly sanction any service that assists with or is in relation to an “extractive or related industry”.

Recent judgments have shone a spotlight on the application of Australian sanctions on the resources (coal, alumina and bauxite) and transport industries. The ramifications may be felt throughout many global industries with complex and intersecting operations.

In Australia, there are two sets of sanction regimes: the United Nations Security Council (UNSC) sanctions regimes and the autonomous sanctions regimes.

Types of Sanctions Under the COTUNA Sanctions Regimes

The type of sanctions under the UNSC sanctions regimes are sanctions passed by the UNSC. The primary instrument of its implementation is the Charter of the United Nations Act 1945 (Cth) (Australia) (COTUNA).

Types of Sanctions Under the Autonomous Sanctions Regimes

The type of sanctions under the Australian autonomous sanctions regimes are sanctions that target specific countries or regions and, since the enactment of the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Act 2021 (Cth) (Australia), address particular issues (referred to as “themes”) such as threats to international peace and security, malicious cyber-activity, serious violations or serious abuses of human rights, or activities that undermine good governance or the rule of law. This second set of regimes is primarily implemented by the Autonomous Sanctions Act 2011 (Cth) (Australia) (the “Sanctions Act”) and the Autonomous Sanctions Regulations 2011 (Cth) (Australia) (the “Sanctions Regulations”).

Under Section 10 of the Sanctions Act, the regulations may make provisions relating to several prohibitions, including:

  • proscription of persons or entities;
  • restriction or prevention of uses of, dealings with, and the making available of assets;
  • restriction or prevention of the supply, sale or transfer of goods or services; and
  • restriction or prevention of the procurement of goods or services.

In other words, the main types of sanctions employed by Australia are:

  • designation of specific individuals or entities as subject to financial sanctions (eg, prohibiting making assets available to that person, as well as asset freezes);
  • travel bans on certain persons, preventing them from entering or transiting through Australia;
  • restrictions on trade or procurement in goods and services (eg, prohibiting the export or the import of specific goods or services);
  • restrictions on engaging in commercial activities or dealing with assets (eg, purchasing shares, granting IP rights or establishing a joint venture); and
  • designation of specific vessels as sanctioned vessels, including preventing them from entering Australia.

There is an overlap between both sets of regimes, such as the current (as of July 2024) regime against North Korea.

Who must comply with the sanctions may depend on the specific regulations relating to the sanction regime. Generally speaking, sanctions regulations have extraterritorial effect. Therefore, the sanctions law applies to activities that occur:

  • in Australia;
  • on board an Australian aircraft or an Australian ship; or
  • by Australian citizens living or bodies corporates registered/incorporated by or under Australian law (whether in Australia, overseas, or on board a domestic or foreign vessel or aircraft).

Both sets of sanctions are imposed at the (domestic) federal level in Australia.

Although the COTUNA sanctions regimes only relate to sanctions passed by the UNSC, as a dualist system, the Australian government must still pass domestic legislation for each sanction to give it effect under Australian law.

The DFAT is broadly responsible for administering and enforcing the set of sanctions under the COTUNA as well as the Sanctions Act and the Sanctions Regulations. To this end, the DFAT established the ASO on 1 January 2022 to sit within the DFAT’s Regulatory Legal Division in the Security, Legal and Consular Group. The ASO is the Australian government’s sanctions regulator.

As the regulator, the ASO:

  • provides guidance on Australian sanctions law to regulated entities and to the public, government and relevant parties;
  • processes applications for, and issues, sanctions permits (see 2.3 Licensing);
  • works with the public to promote compliance and help prevent breaches;
  • works in partnership with other government agencies to monitor compliance; and
  • supports corrective and enforcement action by law enforcement agencies in cases of suspected non-compliance (see 2.2 Enforcement).

The ASO is the primary agency responsible for the enforcement of Australian sanctions law. It does so by working with a network of Australian partners, including the Department of Defence, the Australian Transaction Reports and Analysis Centre (“AUSTRAC”), the Department of Home Affairs, the Australian Border Force (ABF) and the Australian Federal Police, to promote compliance with Australian sanctions law and respond to possible breaches. Prosecution of contraventions of sanctions law is undertaken by the Commonwealth Director of Public Prosecutions.

Breaching sanctions law under the COTUNA or autonomous sanctions regimes, or a condition of authorisation under sanctions law, is a criminal offence in Australia. The penalty depends on who committed the contravention.

For individuals, the penalty can be a maximum term of imprisonment of ten years, a fine, or both. The fine is calculated as 2,500 penalty units or – where transactions are involved ‒ the greater of three times the value of the transaction or 2,500 penalty units. At the time of writing, 2,500 penalty units equalled AUD782,500.

For body corporates, the penalty can be a fine of 10,000 penalty units or – where transactions are involved – the greater of three times the value of the transaction or 10,000 penalty units. At the time of writing (July 2024), 10,000 penalty units equalled AUD3.13 million.

The ASO adopts a co-operative approach in administering and enforcing sanctions law to work with the public to prevent and address breaches of Australian sanctions law. Certain actions are beneficial to undertake to minimise risk and potential penalties as a result of a breach, including:

  • undertaking due diligence checks for Australian sanctions law and the business and organisational structure of the ultimate customer (or end user) – to this end, the ASO manages the ASO Consolidated List, which sets out the persons and entities who are sanctioned (this is a good, but not definitive, reference point);
  • adopting appropriate compliance measures and governance policies;
  • obtaining professional legal advice before engaging in business activities and throughout; and
  • after obtaining legal advice or otherwise with the assistance of a lawyer, engaging with the ASO when there are outstanding queries relating to business or activities.

The above-mentioned guidance is particularly pertinent for corporate entities. The criminal offence for breaching a sanctions law is one of strict liability; however, there is a defence if the body corporate “took reasonable precautions – and exercised due diligence – to avoid contravening” the sanctions law. What this means will depend on the context of each person and company, but the foregoing is a good starting point.

The sanctions regime in Australia operates on the basis of “strict liability” (see 2.2.2 Breaching Sanctions).

An “authorisation” or “permit” (typically called a “sanctions permit”) is available in certain circumstances to permit certain activities related to a person or entity on the Consolidated List that would otherwise be prohibited under Australian sanctions laws. These sanctions permits are granted by the Minister (or their delegate).

The criteria that must be met vary depending on the specific activity and the sanctions regime from which derogation is sought. For all permits, the Minister must be satisfied that it would be in the national interest to grant the permit. Additionally, any permits under the COTUNA require approval from the UNSC.

Permits are usually issued for 180 days but can be for up to two years. The application process will likely take at least three months and will take even longer for complex activities and activities in high-risk countries or regions.

There is no exception for the provision of legal services to designated persons; activities associated with such services are likely to breach Australian sanctions law. Therefore, the provision of legal services to a designated person requires a permit.

There is a general permit authorising certain dealings in association with the provision of certain services directly related to the provision of legal advice or legal representation (SAN-2022-00079). This permit is set to expire on 7 November 2024.

There are no continuous reporting obligations under Australian sanctions law. However, there are record-keeping obligations and certain government officials have information-gathering powers.

Record-Keeping Obligations

Two types of records must be retained, as follows.

  • Any records or documents relating to an application must be retained for five years by the applicant. Importantly, this obligation remains even if the permit is not granted. The five years begins from when the permit was granted or, if it was refused, when the application was made.
  • Any records or documents relating to the person’s compliance with any conditions of the permit must be retained for five years, beginning on the last day on which an action to which the permit relates was done.

Information-Gathering Powers

A “CEO of a designated Commonwealth entity” can require a person to give information or documents to determine compliance with a sanction law. A designated entity includes the DFAT, the Department of Defence, the Australian Customs Service, and the AUSTRAC. The notice will specify the information and/or documents sought, and the timing and manner in which the notice must be complied with.

Information cannot be withheld on the basis its provision will be self-incriminating. However, neither the information given ‒ nor the giving of the document ‒ is admissible as evidence against the individual in any criminal proceedings or in any proceedings that would expose the individual to a penalty, apart from proceedings for:

  • providing false or misleading information given in connection with a sanction law; or
  • failing to comply with the requirement to provide information or documents.

Failing to comply with the requirement is a criminal offence, with a penalty of up to 12 months’ imprisonment.

Three significant court decisions or legal developments in Australia are:

  • Alexander Abramov v Minister for Foreign Affairs (No 2) (2023), which challenged the designation of an individual and confirmed that sanctions could be imposed for past actions that have been discontinued but also provided further insight into the administrative process of sanction-making ‒ this decision, in turn, led to the Australian government passing legislation to reflect the outcome of this decision and retrospectively validate past sanction decisions; and
  • Alumina and Bauxite Company Ltd v Queensland Alumina Ltd (2024) FCA 43, which was Australia’s first case examining the sanctions regimes in the context of commercial contracts/force majeure and confirmed the broad scope of sanction provisions (see 6.1 Force Majeure for further details).

The enactment and use of Magnitsky-style sanctions in relation to cyber and human rights issues.

There are currently two review/reform processes on foot:

  • one by the DFAT – the recommendations of which are currently being considered by the Australian government before proceeding to legislative drafting and further public consultations; and
  • one by a committee of the Australian Senate, which is considering, inter alia, the effectiveness of the sanctions regime, how frozen/confiscated assets could be used, and Australia’s co-ordination with key partners and allies – public consultation is to conclude on 6 September 2024, as is the inquiry and report by 11 February 2025.

There are two general ways to “challenge” a designation ‒ namely, by requesting a revocation of the designation or by seeking judicial review of the decision to designate.

Request Revocation

The specific procedure depends on the specific case factors, including what basis a person wants to challenge the designation and under which specific regime the person was designated. By way of example, requests for delisting of:

  • UNSC listings should be made to the Focal Point for De-listing or through the country of citizenship or residence;
  • UNSC listings related to ISIL (Da’esh) and Al Qaeda should be made to the UN Office of the Ombudsperson or through the country of citizenship or residence;
  • UNSC listings related to  the counter-terrorism (UNSCR 1373) sanctions regime should be made to the DFAT; and
  • listings related to Australian autonomous sanctions should be made to the DFAT.

Importantly for requests relating to Australian autonomous sanctions, once any such request is made, the Minister is not required to review any further requests by (or on behalf of) the same entity for at least 12 months. That is to say, it is important that any initial request be properly made (with legal advice), lest there be a 12-month wait afterwards.

Judicial Review

The procedure by which to challenge the decision to list itself may be different to the foregoing (eg, through administration law) and differ from case to case.

A successful de-listing challenge can result in the removal of the designation list, as this is the primary objective of a delisting challenge.

Importantly, there is no statutory right or framework in Australia to recover financial compensation for being wrongly designated. However, there may be compensation available if the sanctions were imposed “maliciously”. This remains untested in Australia.

The time it takes to obtain a delisting may vary significantly depending on the specific circumstances. There are no statutory timeframes.

There are several – independent and overlapping – statutory regimes prohibiting, authorising or otherwise controlling the import and export of a range of services and goods in Australia.

The primary statutory instruments include the following.

  • The Customs Act 1901 (Cth) and the Customs (Prohibited Exports) Regulations 1958 (Cth) ‒ these primarily deal with controls for the import and export of most goods, including defence and dual-use goods and technologies. The ABF is the primary agency responsible for enforcing this regime; however, other government agencies are involved, including the Defence Export Controls (DEC) within the Department of Defence.
  • The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth) ‒ this controls any goods, technologies or services that could be used in a weapons of mass destruction programme. This regime is administered by the DEC.
  • Defence Trade Controls Act 2012 (Cth) ‒ this controls the transfer of defence and strategic goods, technologies and services. This regime is also administered by the DEC. Key to this regime is the Defence and Strategic Goods List 2021, which lists the military and dual-use goods, software and technologies that are subject to export control regulations in Australia.
  • Export Control Act 2020 (Cth) – this creates a framework regulating the export of all goods (including agricultural products and food). This regime is generally administered by the Department of Agriculture, Fisheries and Forestry.

The import or export of a good or service must be compliant with any applicable regime, which may require seeking authorisation under each regime from the relevant authority. By way of example, the exporting of a dual-use good to a country in respect of which there is a sanction regime may require an export permit from the DEC as well as a sanctions permit from the ASO. 

Please refer to 5.1 Services.

Australian courts have recognised that Australian-imposed sanctions can trigger a force majeure clause, allowing the contracting party to terminate the contract. This position was made clear in Alumina and Bauxite Company Ltd v Queensland Alumina Ltd (2024) FCA 43, whereby it was found that a party was entitled to cease supplying, shipping and delivering certain goods to other entities – in which the designated oligarchs held indirect shareholding interests – on the basis that such activities would breach Australia’s autonomous sanctions. This question turned on the construction of the specific sanction regime and each of the contract’s force majeure clauses. Based on this, a party would have to show only on the balance of probabilities that they would breach Australian sanctions (a breach that would ordinarily require proving beyond a reasonable doubt).

Even where there is not a suitable force majeure clause, there may be other avenues available to parties where sanctions impact the contracted obligations, such as the common-law defence of supervening illegality. This defence is enlivened where there is a change in the law ‒ after the formation of a contract – that renders the future performance of a contract unlawful. Supervening illegality is a defence to the non-performance of the contract. In some circumstances, supervening illegality may have the same terminating effect as frustration.

The impact of non-Australian sanctions on the performance of contractual obligations remains a largely untested question.

Australian courts are yet to consider key questions concerning the enforcement of Australian judgments ‒ or the recognition and enforcement of foreign judgments ‒ where sanctions are live issues.

These questions will turn on the precise sanction regimes that are at play, the role of the sanctioned person or entity (eg, plaintiff, defendant, judgment creditor or judgment debtor), and the circumstances of the matter, including the timing of the proceedings. There may be influence drawn from UK decisions such as PJSC National Bank Trust & Anor v Boris Mints & Ors (2023) EWHC 118 (Comm) and the Ministry of Defence and Support for Armed Forces of the Islamic Republic of Iran v International Military Services Ltd (2019) 1 WLR 6409.

As a starting point, a permit may be able to be issued under regulation 20(4) of the Sanctions Regulations for certain dealings required to “satisfy a judicial, administrative or arbitral lien or judgment that was made before the date on which the person or entity became a designated person or entity” where the dealing is not “for the benefit” of that designatee. It remains to be seen how courts will interpret and apply this provision, including whether it extends to foreign judgments. Regardless, the ASO has noted assets provided to a designated person or entity as a result of a legal proceeding or settlement will be frozen until the designation is removed, which is an approach that seeks compliance both with pre-designation judgments and sanctions regimes.

What is clear is that a permit basis is not expressly available for judgments secured after a designation, even where those proceedings were ongoing at the time the designation was made, further widening the impact of sanctions.

The Minister of Foreign Affairs is responsible for making designation decisions.

Strictly speaking, only those who are expressly designated are formally designated. However, Regulation 14 of the Sanctions Regulations prohibits indirect facilitation of providing sanctioned assets to a designated person. That is to say, it is an offence if one “indirectly makes an asset available to or for the benefit of a person or entity” without a permit. Australian courts have stated that this regulation should be given “the full meaning that is open from the words”, so as to include provision “through interposed corporate entities” and “where the benefit is either the object, effect or likely effect of making the asset available”.

There are also additional offences that extend prohibitions to entities or bodies “owned or controlled” by or those “acting on behalf of” (and similar language) sanctioned governments, individuals or entities.

Some provisions were designed to ensure compliance with Australia’s sanctions regimes by preventing any circumvention. Specifically, Regulation 13 of the Sanctions Regulations prohibits the provision of a “sanctioned service”, which is broadly defined to include essentially any service “if it assists with, or is provided in relation to, a sanctioned supply”. This broad scope was reportedly explained by the Australian government as necessary to prevent circumvention of the laws through the use of intermediaries or exploiting loopholes.

An activity that breaches Regulation 13 of the Sanctions Regulations is a criminal offence and attracts the same penalties as set out in 2.2.2 Breaching Sanctions.

Nyman Gibson Miralis

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+61 2 9264 8884

dm@ngm.com.au www.ngm.com.au
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Trends and Developments


Authors



Nyman Gibson Miralis is an international, award-winning criminal defence law firm based in Sydney, Australia. For more than 55 years, the firm has been leading the market in all aspects of general, complex and international crime, and is widely recognised for its involvement in some of Australia’s most significant criminal cases. Nyman Gibson Miralis’ international law practice focuses on white-collar and corporate crime, transnational financial crime, international sanctions, bribery and corruption, international money laundering, cybercrime, international asset freezing/forfeiture, extradition and mutual assistance law. The team strategically advises and appears in matters where cross-border investigations and prosecutions are being conducted in parallel jurisdictions, involving some of the largest law enforcement agencies and financial regulators worldwide. Working with the firm’s international partners, Nyman Gibson Miralis has advised and acted in investigations involving the USA, Canada, the UK, the EU, China, Hong Kong, Singapore, Taiwan, Macao, Vietnam, Cambodia, Russia, Mexico, South Korea, the British Virgin Islands, New Zealand and South Africa.

Introduction

Global sanctions have proliferated rapidly over the past decade, with Australia’s 2023‒24 activity spurred on by recent and continuing events such as the Russia‒Ukraine conflict, destabilising activities in the Middle East, and ransomware attacks. As of July 2024, per the Consolidated List managed by the Australian Sanctions Office (ASO), just under 40% of sanctions in force were originally imposed in 2022 ‒ with 27.2% and just under 14% being imposed in 2023 and 2024 respectively. Overall, there has been a deceleration in Australia’s usage of sanctions. As the Australian government shifts its sanctions focus and embraces the Magnitsky-style framework, legislative reviews are underway promising more efficiency and global co-ordination. Even if such reform is realised, businesses must be cautious of the sweeping scope of Australia’s sanctions from both a commercial and criminal perspective and the piecemeal nature of the regimes.

Analysis of Australia’s Sanction Use

Australia’s primary focus: Russia‒Ukraine conflict

Despite the deceleration in Australia’s sanction output throughout the past year, Australia continues to rely on this tool in its international relations arsenal. On numbers alone, Australia’s primary target of existing sanctions remains the Russia‒Ukraine conflict. An examination of the Consolidated List shows that almost 50% of in-force sanctions (from 2003 to 2024) relate to the autonomous sanction regimes concerning Russia and Ukraine. However, Australia’s focus for 2024 appears to have shifted, with almost equal designations under the autonomous sanctions regimes relating to Syria (25.3%), Russia (24.1%) and Iran (23.2%).

Notwithstanding this shift, there is likely to be further sanctions action in respect of the ongoing Russia‒Ukraine conflict and refreshed concerns that the Russian oil price cap continues to be circumvented. Previously, such concerns have been met by the ASO issuing further guidance to market players, and Australia designating small to medium-sized traders and shipping companies largely based in Asia and the Middle East.

Increasing attention: Israel‒Palestine conflict

An area to watch for sanctions is the Israel‒Palestine conflict. In July 2024, the International Court of Justice (ICJ) issued a non-binding advisory opinion on the legal consequences arising from Israel’s policies and practices in the occupied Palestinian territory. In its opinion, the ICJ canvassed certain obligations that all states had in respect of the situation.

Five days after the opinion, the Australian government imposed Magnitsky-style sanctions (see next section) on seven Israeli individuals and one organisation for “settler violence”. These entities had already been sanctioned in several other jurisdictions as early as February 2024.

The Australian government may issue further sanctions in the coming months, as the Israel‒Palestine situation continues, the ICJ’s opinion and emphasised obligations are considered, and further international proceedings take place. It is expected that these will likely match those that the USA, the UK or the EU have already sanctioned.

Deceptive increase in Magnitsky-style sanctions

Australia has been increasingly using Magnitsky-style sanction instruments. During the eight months since December 2023, the Australian government issued five of the total of nine instruments since the Magnitsky-style sanctions framework was implemented in December 2021 (31 months as of July 2024).

For context, Magnitsky-style sanctions are named after Sergei Magnitsky, a lawyer killed in prison for exposing corruption. They are a distinct type of sanction, as they target individuals in order to freeze assets and prevent free travel, rather than a particular state.

Despite bipartisan support in passing the legislative framework in December 2021, the take-up on issuing such sanctions was slow. The first use of Magnitsky-style listings was in March 2022, in respect of 39 individuals who were exposed by Magnitsky or involved in his abuse and death. The powers were then reused in December 2022, imposing sanctions on 15 entities for the death of Mahsa Amini and the violent crackdown on protests in Iran, as well as the assassination of former Russian opposition leader Alexei Navalny. In February and March 2023, sanctions were imposed on 45 entities in total response to the ongoing human right abuses and oppression in Iran.

Since December 2023, there has been a steady increase in the rate of implementing Magnitsky-style sanction instruments against entities for the poisoning of Vladimir Kara-Murza, cyber-attacks, (additionally for) the mistreatment of Alexei Navalny, and violence by Israeli citizens against Palestinians in the West Bank. However, these instruments do not target the same number of entities as they previously did. In fact, each of the five instruments targets substantially fewer individuals than their predecessors, with all five only targeting 20 of the total 119 entities sanctioned under the Magnitsky-style framework.

This trend may indicate that the Australian government is becoming more reliant on sanctions, embracing the flexibility offered under this framework. Regardless, this practice is further adding to the piecemeal structure of the Australian sanctions framework and requires businesses to ensure they are keeping up to date not only with the state-specific sanction regimes but now also those that arise owing to particular individuals or events.

Australia’s Position in Global Sanctions System

Fracturing lines

Data suggests that sanctions continue to be used globally, with the number of sanctions increasing year-on-year, and yet there is a long-term trend of there being more individual states’ autonomous sanctions imposed than consensus-based UN sanctions. The latter now reportedly constitutes only 1.42% of sanctions worldwide. As countries continue to act without reference to a de facto co-ordinating central body, there has been a notable fracturing of the global sanctions order, which is seen even in Australia.

In recent experience, Australia’s sanction use has not even aligned with its traditional allies. By way of example, the sanctions imposed for settler violence in July 2024 were on individuals and entities against which the UK, the USA and the EU had already imposed sanctions (some as early as February 2024). This trend is only set to become more noticeable as countries seemingly take different approaches to sanction use. Where Australia is seeing a deceleration of sanctions, other countries such as the USA are “bucking” the global trend and are using sanctions more and more.

Beyond a country’s approach to sanctions, other causes of this fracturing may include:

  • the delay of information-sharing between the initial and following sanctioning state(s);
  • a delay of the following procedural processes of the state(s); and
  • no system to notice or recognise a successful challenge or delisting application in respect of a sanction in foreign jurisdictions.

Australia’s partial reliance on other countries in sanction matters but failure to properly co-ordinate can have unreasonable consequences, such as:

  • providing an avenue for properly designated individuals to circumvent foreign sanctions; or
  • continuing to impose sanctions on improperly designated individuals where a foreign country has recognised the improper basis for sanctioning.

These issues may be addressed in the Senate’s latest inquiry into the sanctions regime announced in July 2024 (as detailed later in this article) and lead to statutory or policy reform in 2025.

United front on cybercrime

Notwithstanding the above-mentioned fracturing, Australia is often seen as pursuing a co-ordinated approach with its allies. This co-ordination is particularly illustrated in the developing field of cybercrime, where there have been co-ordinated international investigative and law enforcement efforts, resulting in the simultaneous sanctioning of entities. This was seen in 2024 with Operation Cronos, a co-ordinated law enforcement action against the LockBit ransomware group and comprising Australia, the UK, the USA, France, Germany, Switzerland, Japan, Sweden, Canada and the Netherlands, with Finland’s support.

By way of background, LockBit is alleged to have been responsible for more than 7,000 attacks between June 2022 and February 2024, as well as approximately 18% of total reported ransomware incidents in Australia in 2022‒23 (119 victims). Most notably for Australia, LockBit is said to have been responsible for the compromise of Medibank and the theft of almost ten million health insurance records of Australians in 2022.

In January 2024, as a result of Operation Cronos, Australia imposed its first-ever cybersanction on Aleksandr Ermakov, a Russian national who is alleged to have had a senior role in LockBit. This Australian first was soon followed by a second with a financial sanction and travel ban being imposed on Dmitry Yuryevich Khoroshev, a Russian citizen alleged to have been a senior member of LockBit. Simultaneous sanctions were issued by multiple other countries, including the UK and the USA. Law enforcement efforts continue, with the USA issuing indictments and a transnational organised crime reward for Khoroshev.

In June 2024, the ASO signalled its strong support of the EU’s then-recent imposition of sanctions against cybercriminals and renewed its commitment to using sanctions to “deter and respond to malicious cyber-activity”. As cyber-attacks are increasing, there may be a correlating uptick in sanctions ‒ specifically, those under the Magnitsky-Style Regulations (further detailed later in this article). Watch this space.

Reform on the Cards 

More reviews: another cook joins the kitchen

In January 2023, the Department of Foreign Affairs and Trade (DFAT) announced its review of Australia’s autonomous sanctions framework after 12 years of operations and ahead of the framework expiring on 1 April 2024. The review was to consider a range of aspects of the existing framework, including increasing the enforcement actions available to ASO (TOR 6) and providing more guidance on key concepts, terms and definitions (TOR 9).

Public consultation concluded on 26 February 2023 and the results were published in July 2024. Although the review was initially set to conclude on 30 June 2023, the report and recommendations remain unpublished and are still being considered by the Australian government. In the meantime, the regulatory framework was renewed until 1 October 2027 and the public is to be consulted on any reforms to come.

Also in July 2024, the Senate referred a separate inquiry into Australia’s sanctions regime to the Foreign Affairs, Defence and Trade Reference Committee. At the time of writing (July 2024), public consultation is open until 6 September 2024 and a report is due on 11 February 2025.

While there is a certain overlap between the terms of reference for each review, the latest reveals fresh ground for future reform, with the legislature’s attention turning towards:

  • increasing Australia’s co-ordination with like-minded states in order to address “any gaps and time lags” (TOR A, TOR C and TOR H);
  • considering potential uses of frozen/confiscated assets (TOR D), echoing the USA’s latest use of sanctions-frozen Russian assets to fund a loan to Ukraine; and
  • considering further co-operation and engagement with the community, including financial institutions (TOR E).

Offences and Enforcement

Alumina decision: sweeping scope of sanctions

A long-standing issue in terms of the Australian sanctions regime has been understanding the scope of the targeted financial sanctions. Even the DFAT identified this as an issue to be examined in their 2023 review. While the review remains outstanding, recent cases have served to only confirm the expansiveness of these provisions and offered limited guidance on their parameters.

One of the most important legal developments in the Australian sanctions landscape is the landmark judicial guidance provided by the Federal Court of Australia in Alumina and Bauxite Company Ltd v Queensland Alumina Ltd (2024) FCA 43 (“Alumina”). The case concerned the early termination of a supply arrangement by the supply parties via the force majeure provisions in reliance on sanctions against Russia.

For the sake of brevity, certain Australian sanctions offences may be triggered where the designated person or country receives a benefit or good as a “direct or indirect” result of someone supplying a good/service to the person, country or a third party (see Regulations 4, 12 and 14). There was (and remains) no legislative or regulatory guidance on how to interpret “direct or indirect”. According to the Alumina decision, whether the goods immediately result in ‒ or eventually (no matter the additional steps or actions in the supply chain) result in ‒ the good or benefit to the designated person or country, there would be an offence. In doing so, the court openly acknowledged that there was the “possibility that a person may engage in a transaction that initially is not a sanctioned supply, but which subsequently becomes a sanctioned supply” due to “events that occur after the transaction has been undertaken”.

Another element of certain sanction offences is that there must be a “benefit” conferred. The court also found that the “benefit” (for Regulations 4 and 12) includes “anything that is for the good of a person or thing” or “advantage, profit, good” that increases tax or employment for a sanctioned country. This only serves to expand the scope and uncertainty of these provisions.

Of course, one should be able to avoid penalties under the sanctions regime if any supplier obtains a permit for their operations, or a (body corporate) supplier takes reasonable precautions and exercises due diligence at the time the initial supply is made, or even if an individual supplier makes the initial supply while mistaken as to a relevant fact (eg, they are deceived about who is the end user). Nevertheless, the suppliers are still left without a clear idea of the scope of the laws and possible offences. This not only impacts liability under criminal and corporate law but also obligations under contract.

Where suppliers are investigated by the ASO in respect of their compliance, they will be significantly reliant upon:

  • their best efforts regarding due diligence and compliance programmes;
  • their ability to obtain and follow (in a technical sense) permits, which may also have interpretation issues; and
  • as a last resort, the ASO’s discretion to avoid the cost and time of an investigation (and perhaps trial) in such scenarios.

This serves as a warning for all suppliers who are subject to Australian sanctions law on the importance not only of undertaking reasonable precautions and due diligence in their business operations, including applying and obtaining a permit where there is any identified risk, but also of the need to always ensure force majeure clauses can properly respond to changes in sanctions law.

Absence of enforcement action

Without published statistics, it is difficult to determine trends, including in the use of Section 19 notices and enforcement proceedings. According to the Office of the Director of Public Prosecution’s 2023 Annual Report, there were no charges under the Sanctions Act, leaving R v Choi (No 10) (2021) as the only reported law enforcement case in Australia.

This stands in sharp contrast to the USA, where high-profile enforcement action has taken place, including a USD508 million settlement with British American Tobacco for alleged sanction violations in April 2023 and a USD968 million settlement with Binance Holdings for more than 1.6 million alleged violations of multiple sanctions regimes.

Australia’s lack of enforcement action may be due to resources, a preference for a co-operative approach by the ASO, or acknowledgment that the sanctions regimes are new and untested ‒ giving rise to such cases as the Tigers Realm Coal Limited v Commonwealth of Australia (2024) (“Tigers Realm”), where the business continued to operate for approximately 18 months, despite the ASO assessing such operations as being prohibited. In respect of this case, the ASO is reportedly still considering enforcement options; however, as of July 2024, the relevant Australian Securities Exchange (ASX)-listed company was delisted and the sale of its assets was complete, pending President Putin’s approval.

The ASO’s 2023‒24 review may well recommend increasing enforcement action or expanding the regulatory arsenal beyond education, criminal prosecution and conditional permits. Further, compliance and enforcement action may be on the horizon ‒ on 14 May 2024, the Australian government announced its 2024‒25 Budget, which included:

  • increased funding to strengthen the capability of the DFAT; and
  • specifically allocating AUD26.4 million between 2024‒28 to strengthen the monitoring and enforcement of Australia’s sanctions regimes.

Regulatory focus ‒ digital assets

In late May 2024, the ASO published an advisory alert for digital currency exchanges (DCEs). In the alert, the ASO confirmed cryptocurrencies are considered an “asset” and called on DCEs to ensure they are undertaking reasonable precautions and due diligence in cryptocurrency dealings. As such, the ASO is putting the DCEs and digital asset platforms under heightened scrutiny, without addressing the practical and legal compliance difficulties in this space.

Permits in Practice

Publication but continued limited use

An important non-legislative development is in the publication of general permits. Since the inception of the autonomous regimes, the Minister of Foreign Affairs (“the Minister”) has had the power to make general permits to allow conduct that would otherwise be prohibited by sanctions. In July 2023, for the first time, the ASO published the existing general permits concerning certain IP, legal services, tax and oil and petroleum price caps on their website. Some of these permits had been issued as early as 25 May 2022. Previously, each individual and entity would have to make an application for a permit, without knowing if a general permit existed.

It remains the responsibility of each individual seeking to rely on the general permit to “read the terms of the permit carefully” and report to the ASO that they intend to rely on the permit. For any conduct falling outside these permits, entities must engage with the ASO and apply for an individual permit. The ASO estimates the standard waiting time to be three months. Such a length of time can lead to significant consequences for the financial industry and other businesses ‒ the impact of which is compounded, given the lack of notice before sanctions are imposed.

There is still a distinct lack of general permits seen as key in other jurisdictions, such as for humanitarian reasons or for an orderly wind-down of existing business activities and contractual obligations. The impact of the latter is compounded by the lack of authoritative guidance on the sanctions regimes, as illustrated by arguments progressed in the Alumina and in the Tigers Realm cases.

Gap between law and banking policies

A subsisting trend among certain banks operating in Australia is that their sanction policies and practices do not account for permits. Accordingly, although an entity may have obtained a permit or fall under a general permit to allow for dealings with designated persons, the bank continues to prevent transactions relating to the engagement.

This gap undermines the effectiveness of permits and has serious ramifications that permits try to address. By way of example, failure to recognise the general permit allowing transactions that are required by Russian tax law will result in serious consequences for any individual or entity who has tax obligations and may even impact their position under Australian law should there be any correlative aspects, such as foreign tax credits. Another example is the failure to recognise the general permit allowing the provision of legal services. Prevention of payment may lead to:

  • the denial of legal services crucial to ensuring the sanctions regime is accurate and fair; and
  • the abrogation of certain individuals’ human rights.

Although this trend may be raised in the Senate’s latest inquiry, it relies on banks being able to prepare and implement policies that properly accommodate permits. The practical difficulties of the banks in doing so are only exacerbated by the piecemeal and fractured nature of the domestic and global sanctions system.

Developments in the Process of Challenging Sanctions

Abramov and Deripaska decisions

Two other notable cases were Alexander Abramov v Minister for Foreign Affairs (No 2) (2023) FCA 1099 and Deripaska v Minister for Foreign Affairs (2024) FCA 62 ‒ both of which involved individuals challenging their designation under Australia’s Russia sanctions regime.

Specifically in the former, the court confirmed that sanctions could be imposed on the basis of:

  • past (but discontinued) conduct, without expressing a limit on how far back the Minister can refer in imposing sanctions; and
  • a person’s activities, even if the activities were neither important nor momentous and did not have a “clear” and “substantial” nexus with Russia ‒ although the court did acknowledge that there does need to be some sort of nexus and conformity “with the standard of legal reasonableness”.

These findings confirm the significantly wide discretion that the Minister wields in imposing sanctions. The court also reiterated its general hesitancy in examining such decisions, indicating that they involve sensitive judgments on foreign policy and other matters that are informed by strategic and governmental information.

These decisions put further strain on the ability of affected individuals to seek a review of the Minister’s decisions, further confining such a process to the procedure set out in Section 11 of the Sanction Regulations. This process involves the individual making an application for revocation to the Minister and only requires the Minister to consider this request once every 12 months. The application of revocation has become an even more critical component as a mechanism for procedural fairness in this high-stakes environment.

Legislative amendment

In reaction to this decision, the Australian Parliament (somewhat unnecessarily) cemented the flexibility by passing the Autonomous Sanctions Amendment Bill 2024 (Cth) to (retrospectively) amend the Sanctions Act to expressly state that entities can be validly sanctioned based on past conduct or status. The Autonomous Sanctions Amendment Bill 2024 (Cth) also shored up the sanctions that came before it by confirming the validity of these decisions even where the Minister failed to consider their discretion as to whether they should designate the person.

Nyman Gibson Miralis

Level 9
299 Elizabeth Street
Sydney
NSW 2000
Australia

+61 2 9264 8884

dm@ngm.com.au www.ngm.com.au
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Law and Practice

Authors



Nyman Gibson Miralis is an international, award-winning criminal defence law firm based in Sydney, Australia. For more than 55 years, the firm has been leading the market in all aspects of general, complex and international crime, and is widely recognised for its involvement in some of Australia’s most significant criminal cases. Nyman Gibson Miralis’ international law practice focuses on white-collar and corporate crime, transnational financial crime, international sanctions, bribery and corruption, international money laundering, cybercrime, international asset freezing/forfeiture, extradition and mutual assistance law. The team strategically advises and appears in matters where cross-border investigations and prosecutions are being conducted in parallel jurisdictions, involving some of the largest law enforcement agencies and financial regulators worldwide. Working with the firm’s international partners, Nyman Gibson Miralis has advised and acted in investigations involving the USA, Canada, the UK, the EU, China, Hong Kong, Singapore, Taiwan, Macao, Vietnam, Cambodia, Russia, Mexico, South Korea, the British Virgin Islands, New Zealand and South Africa.

Trends and Developments

Authors



Nyman Gibson Miralis is an international, award-winning criminal defence law firm based in Sydney, Australia. For more than 55 years, the firm has been leading the market in all aspects of general, complex and international crime, and is widely recognised for its involvement in some of Australia’s most significant criminal cases. Nyman Gibson Miralis’ international law practice focuses on white-collar and corporate crime, transnational financial crime, international sanctions, bribery and corruption, international money laundering, cybercrime, international asset freezing/forfeiture, extradition and mutual assistance law. The team strategically advises and appears in matters where cross-border investigations and prosecutions are being conducted in parallel jurisdictions, involving some of the largest law enforcement agencies and financial regulators worldwide. Working with the firm’s international partners, Nyman Gibson Miralis has advised and acted in investigations involving the USA, Canada, the UK, the EU, China, Hong Kong, Singapore, Taiwan, Macao, Vietnam, Cambodia, Russia, Mexico, South Korea, the British Virgin Islands, New Zealand and South Africa.

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