Overview

The Autonomous Sanctions Amendment (Russia) Regulations 2022 were enacted to address the significant threat posed by Russia to Ukraine's sovereignty and territorial integrity. This amendment to the Autonomous Sanctions Regulations 2011 was introduced by the Parliament of Australia under the Autonomous Sanctions Act 2011, enabling the Governor-General to apply sanctions as a matter of foreign policy. The policy objective is to impose targeted financial sanctions and travel bans on individuals and entities contributing to Russia's aggression, thereby influencing state behaviour and upholding the international rules-based order. The amendment introduces new criteria allowing the Minister for Foreign Affairs to list individuals for sanctions if they are engaged in activities of economic or strategic significance to Russia, are current or former senior Russian government officials, or are immediate family members of such individuals. This targeted approach aims to limit the impact on innocent parties while effectively addressing the situation at hand. The Autonomous Sanctions Amendment (Russia) Regulations 2022 ensures that the imposition of sanctions remains transparent and targeted, using publicly available criteria to designate individuals and entities. The Regulations also provide mechanisms for the revocation of listings, automatic expiry after three years, and the potential for waivers on humanitarian grounds or in the national interest. This framework aims to balance the need for effective sanctions with respect for human rights, ensuring that the measures do not disproportionately affect innocent individuals. The Regulations are designed to prevent breaches of rights such as privacy, family respect, standard of living, freedom of movement, and non-refoulement, by allowing for judicial review and targeted application of sanctions.

Scope and Application

The Autonomous Sanctions Amendment (Russia) Regulations 2022 applies to individuals and entities engaged in activities or functions of economic or strategic significance to Russia, current or former Ministers or senior officials of the Russian Government, and immediate family members of the aforementioned categories. These regulations extend to the Commonwealth of Australia and are enforced under the Autonomous Sanctions Act 2011, which empowers the Governor-General to implement sanctions as a matter of foreign policy. This Act applies independently of any obligations under a United Nations Security Council decision, thereby distinguishing it from United Nations Security Council sanctions. The application of these sanctions is discretionary, with the Australian Government considering national interests, bilateral, regional, and multilateral equities, and the impact on Australia’s economic, security, and other interests when deciding to impose sanctions. The regulations are subject to amendment through subordinate instruments, and while they do not specify exclusions or thresholds, the process for listing individuals or entities includes provisions for review and potential revocation or expiration of listings. The regulations ensure compliance with human rights, as outlined in the Human Rights (Parliamentary Scrutiny) Act 2011, and are designed to be transparent and targeted, focusing on those who meet the specified criteria for sanctions.

Key Provisions

• The Autonomous Sanctions Amendment (Russia) Regulations 2022 (the Amendment Regulations) are a legislative instrument that amends the existing Autonomous Sanctions Regulations 2011 (the Regulations) to introduce new listing criteria for imposing sanctions on persons and entities in response to Russia's significantly elevated threat to Ukraine's sovereignty and territorial integrity. These new criteria, outlined in regulation 6A of the Regulations, will allow the Minister for Foreign Affairs to list persons and entities for targeted financial sanctions and/or travel bans if they meet specific criteria, such as engaging in an activity or performing a function that is of economic or strategic significance to Russia, being a current or former Minister or senior official of the Russian Government, or being an immediate family member of a person mentioned in the new criteria.
• Under the Regulations, a designation is a tool used to subject a designated person or entity to targeted financial sanctions, which include prohibiting the making of an asset available to or for the benefit of a designated person or entity, and requiring the freezing of an asset owned or controlled by a designated person or entity. A declaration is a tool used to prevent a person from travelling to, entering, or remaining in Australia. These tools are designed to influence a change in Russian state behaviour and are implemented in accordance with Australia's national interest.
• The Amendment Regulations impose several obligations and requirements on the parties and entities they govern. The Minister for Foreign Affairs must make listings by legislative instrument, and these listings will be subject to judicial review. The Regulations also provide that listings automatically expire after three years if not otherwise continued in effect by legislative instrument. The Regulations are transparent and targeted, using predictable, publicly available criteria to list persons and entities for targeted financial sanctions and travel bans. The Regulations also allow for the waiver of a travel ban on the grounds that it would be in the national interest or on humanitarian grounds, and permit certain payments to be made to a designated person and for a designated person's assets to be dealt with in certain circumstances, such as in relation to food, housing, medicine and medical treatment.
• Failure to comply with the requirements of the Regulations may result in civil or criminal penalties. For example, regulation 14 of the Regulations prohibits directly or indirectly making an asset available to, or for the benefit of, a designated person or entity, other than as authorised by a permit granted under regulation 18. A person who contravenes this prohibition may be subject to a civil penalty of up to 5,000 penalty units (currently AUD 1.275 million) for a corporation and up to 500 penalty units (currently AUD 127,500) for an individual, or may be subject to criminal penalties, including imprisonment for up to 10 years. Similarly, regulation 15 of the Regulations requires a person who holds a controlled asset to freeze that asset, by prohibiting the person from either using or dealing with that asset, or allowing it to be used or dealt with, or facilitating the use of or dealing with it, other than as authorised by a permit granted under regulation 18. A person who contravenes this requirement may also be subject to civil and/or criminal penalties.
• In summary, the Amendment Regulations introduce new listing criteria under the existing autonomous sanctions regime in relation to Russia, in response to that country's significantly elevated threat to Ukraine's sovereignty and territorial integrity. These new criteria will enable the Foreign Minister to list persons and entities for targeted financial sanctions and/or travel bans if the Minister is satisfied that the person or entity meets specific criteria. The Regulations impose obligations and requirements on the parties and entities they govern, and failure to comply with these requirements may result in civil or criminal penalties.

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Area of Law

International Law

Instrument

Regulation

Concepts

Commencement Provisions

Licensing & Registration

Reporting & Disclosure Obligations

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Exemptions & Exclusions