The Progressive Lawyers Group’s submissions to the Australian Parliament for its Inquiry into whether Australia should examine the use of targeted sanctions to address human rights abuses
A. Introduction
1. The Progressive Lawyers Group (the “PLG”) is a civil society group based in Hong Kong. The PLG was formed by a group of lawyers in January 2015. Inspired by the 2014 “Umbrella Movement” protests, the PLG’s mission is to defend the rule of law, democracy, human rights, and freedoms in Hong Kong. Currently, the PLG has over 100 members consisting of solicitors, barristers, in-house lawyers, legal academics, and law students.
2. The PLG has made submissions to various governments regarding the rule of law and human rights situation in Hong Kong. For example, in January 2019, the PLG made submissions to the United Kingdom Parliament’s Joint Committee on Human Rights1 ; and in July 2019, the PLG (with other civil society groups) made submissions to members of the United States Congress in support of the Hong Kong Human Rights and Democracy Bill.2
3. The PLG is pleased to present these submissions for the present inquiry into whether Australia should examine the use of targeted sanctions to address human rights abuses, being conducted by the Australian Parliament’s Joint Standing Committee on Foreign Affairs, Defence and Trade. For the reasons below, we submit that there are clear and compelling reasons for Australia to implement a “Magnitsky”-style sanctions regime.
1 UK Parliament, Joint Committee on Human Rights, Inquiry on Human Rights Protections in International Agreements, 2019
1 B. Australia as a country which upholds human rights
4. Australia is a country with strong democratic values, which has a proud tradition of making efforts to defend human rights. This is reflected, for example, in the fact that Australia is a State Party to 7 major international conventions relating to human rights, namely:
4.1. The International Covenant on Civil and Political Rights (ICCPR) 4.2. The International Covenant on Economic, Social, and Cultural Rights (ICESCR) 4.3. The International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 4.4. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 4.5. The Convention on the Rights of the Child (CRC) 4.6. The Convention on the Rights of Persons with Disabilities (CRPD)3
C. The global trend towards Magnitsky-style sanctions
C1. Introduction
5. It is clear that, in the last decade, there has been a growing trend among countries -- especially those in the liberal democratic world -- to adopt Magnitsky-style sanction regimes.
C2. United States - Global Magnitsky Act
6. The Magnitsky Act (officially the Russia and Moldova Jackson–Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act) was a bipartisan bill passed in 2012 in the United States, in the wake of the death of Sergei Magnitsky. Sergei Magnitsky was a tax advisor who had been investigating corruption by Russian government officials. He died in prison in Russia, with subsequent investigations revealing a disturbing lack of medical care despite his suffering from gallbladder problems and pancreatitis; and probable serious physical assaults while in prison
7. The Magnitsky Act was originally designed to target Russian officials complicit in the death of Sergei Magnitsky by banning their entry into the US, freezing their financial assets, and barring their ability to use the US financial system.
3 Attorney’s General Department, ‘International Human Rights System’
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8. Unlike traditional sanction regimes which target a country generally, the Magnitsky Act allowed for the sanctioning of specific individuals. It initially named 18 Russian nationals connected to the death of Sergei Magnitsky.
9. Thus, the Magnitsky Act represented a significant advancement in thinking when holding human rights violators to account. It provided a much more precise and nuanced tool that could avoid collateral damage to innocent citizens living in human rights-violating regimes, while directly impacting perpetrators.
10. In 2016, the US Congress passed the Global Magnitsky Human Rights Accountability Act, expanding the framework of the original Magnitsky Act to cover any individual who commits violations of human rights worldwide (rather than being limited to Russia), and also to those who engage in serious corrupt practices.
11. Initial reports show that the Global Magnitsky Act does indeed have ‘teeth’. Notable achievements so far include disrupting corruption in the mining industry in the Congo; targeting those responsible for the death of journalist Jamal Khashoggi; and imposing sanctions on members of the Burmese military who were involved in atrocities against Rohingya Muslims.4 In total, the US has imposed sanctions on approximately 94 individuals and 102 entities from 24 countries.5
C3. United States - Hong Kong Human Rights and Democracy Act
12. In November 2019, the United States passed the Hong Kong Human Rights and Democracy Act (with overwhelming bipartisan support in both the Senate and the House of Representatives). One of the legislation’s key features is that it allows the US to impose Magnitsky-like sanctions (such as asset freezes and travel bans) against individuals who are found to be violating human rights in Hong Kong.6
4 US Treasury Department, “Treasury Sanctions Commanders and Units of the Burmese Security Forces for Serious Human Rights Abuses”, 17 August 2018
3 C4. Canada - Justice for Victims of Corrupt Foreign Officials Act
13. In 2017, Canada passed the Justice for Victims of Corrupt Foreign Officials Act. This allowed the Canadian government to impose Magnitsky-style asset freezes and travel bans on foreign persons who were found to be responsible for, or complicit in, gross violations of internationally-recognized human rights. So far, Canada has used this legislation to sanction officials from Venezuela, South Sudan, Saudi Arabia, Russia, and Burma.7
C5. United Kingdom - Sanctions and Anti-Money Laundering Act
14. In 2018, the United Kingdom introduced a Magnitsky-style sanctions regime (through an amendment to the Sanctions and Anti-Money Laundering Act, which was then in the course of being enacted). This would allow the UK government to impose sanctions (such as asset freezes and travel bans) on individuals who commit gross human rights violations.
15. Boris Johnson, the then UK Foreign Minister, commented that:
“These (provisions) will allow the UK to act against those responsible for serious offences worldwide. UK stands up for human rights globally.”8
16. The UK government has indicated that the sanctions regime will be implemented (and indeed enhanced) once the country has left the European Union.9
7 Government of Canada, “Justice for Victims of Corrupt Foreign Officials Act”, accessed 23 March 2020
4 C6. European Union
17. On 14 March 2019, the European Parliament passed a (non-binding) resolution calling for the European Council “to swiftly establish an autonomous, flexible and reactive EU-wide sanctions regime that would allow for the targeting of any individual, state and non-state actors, and other entities responsible for or involved in grave human rights violations.” 10
18. Recently (in December 2019), the European Union officially announced that it would be starting work to set up a Magnitsky-style sanctions regime. In making the announcement, the EU High Representative for Foreign Affairs, Josep Borrell, commented that “this will be a tangible step reaffirming the European Union’s global lead on human rights.”11
19. Shortly after the announcement, the Dutch Foreign Minister Stef Blok (who had been a strong proponent of a EU-wide Magnitsky regime) commented as follows:
“… with this new EU sanctions regime we can show that the EU has teeth. And human rights abusers will feel their bite. Now that’s what I call effective....[human rights abusers] won’t be able to do business [in the EU] anymore. Or shop in the glitzy stores of Paris or Budapest.”12
C7. Other countries
20. An increasing number of other countries and territories have also adopted Magnitsky-style sanction regimes, including Estonia, Lithuania, Latvia, Gibraltar, Jersey, and Kosovo.13
10 European Parliament, “Motion for a resolution on a European human rights violations sanctions regime”, 2019/2580(RSP) B8-0180/2019, 11th March 2019, available at
5 21. Furthermore, such laws are under consideration in France, Germany, the Netherlands, Sweden, Denmark, Norway, Ireland, Ukraine, Moldova, and the Czech Republic. 14
D. Current sanctions regime in Australia
22. Australia currently implements two types of sanctions:
22.1. Sanctions imposed as a matter of Australian foreign policy as empowered by the Autonomous Sanctions Act 2011 (Cth)15 (the “Sanctions Act”); and
22.2. United Nations Security Council sanctions which Australia is obligated to impose as a member of the UN.
E. Reasons for Australia to institute a Magnitsky-style sanctions regime
23. We believe that there are clear and compelling reasons for Australia to institute a Magnitsky-style sanctions regime.
24. First, a Magnitsky-style sanctions regime allows for much more targeted and nuanced sanctions against human rights violators.
25. Traditional sanctions, being mainly country-focused, are frequently too blunt and indiscriminate an instrument. They often place policymakers in the invidious position of having to choose between “all” or “nothing”. For example, policymakers may have justifiable concerns about whether imposing ‘broad stroke’ sanctions against another state (which has committed human rights violations) would harm innocent citizens within that state (including, indeed, the victims themselves).
26. Magnitsky-style sanctions, by contrast, allow policymakers to have the option of taking a more surgical approach, which could punish individual perpetrators while minimising harm to innocent citizens. They add an important tool which could be used to defend human rights, and bring about accountability and justice.
27. As Dutch Foreign Minister Stef Blok argued in a speech in November 2018:
14 Ewelina Ochab, op cit. 15 Autonomous Sanctions Act 2011 (Cth).
6 “...we see human rights sanctions as a necessary additional instrument...to supplement the geographical and theme-based sanctions that already exist. Honesty dictates that we acknowledge that geographical sanctions are sometimes too blunt an instrument to be used in practice. They may be too political. And they may not always feasible”.16
28. Currently, Australia’s sanctions regime is mainly country-focused. Although theoretically it may be possible to sanction individuals, the language of the legislation implies that it only applies where one can identify a country that has committed human rights violations. See e.g. Section 10 of the Sanctions Act, which states the Minister may impose sanctions if he is satisfied that it “will facilitate the conduct of Australia’s relations with other countries or with entities or persons outside Australia” or “otherwise deal with matters, things or relationships outside Australia”. In any event, in practice, the majority of sanctions imposed under the Act have been against state actors or groups (such as North Korea, Iran, Libya, and Zimbabwe)17 . Thus, there is a gap in Australia’s ability to target individuals who are complicit in gross human rights abuses, which would be remedied by a Magnitsky-style regime.
29. Second, as pointed out in Section C above, there is a clear global trend, especially among liberal democracies, to implement Magnitsky-style sanction regimes. It would be a glaring anomaly if Australia - a democratic country with a proud tradition of defending human rights - were to lack similar legislation.
30. The effectiveness of Magnitsky laws depends crucially on collective, multi-national action. Magnitsky laws aim to deny human rights abusers the privilege of accessing the benefits of advanced democratic countries (such as a safe banking system and stable property rights) while committing human rights violations. Ultimately, human rights violators are only deterred if they face practical consequences for committing violations. The more countries that adopt Magnitsky-style sanctions, the greater the deterrent effect.
31. Conversely, if there is a country which does not have Magnitsky-style sanctions, then it risks becoming a safe harbour for human rights abusers (i.e. after they have been sanctioned by other, Magnitsky-wielding countries). This applies especially for a country -- such as Australia -- which is a highly
16 Dutch Ministry of Foreign Affairs, “Closing remarks by the Minister of Foreign Affairs, Stef Blok, at a meeting on the EU Global Human Rights Sanction Regime”, 20 November 2018
7 attractive destination for foreign nationals to immigrate, live, place their assets, and receive their education. Australia should not allow itself to become a proverbial ‘weak link’ in the global fight to protect human rights.
32. Third, there are serious inadequacies in the system of UN Security Council (and other UN-related) sanctions. Most importantly, they are more or less useless against any human rights violations committed by one of permanent members of the UN Security Council (such as China and Russia), or by any state which is under their protection. Other transnational mechanisms (such as the International Criminal Court) are also difficult to apply because they may, again, run into the problem of state sovereignty.
33. A Magnitsky-style regime would contribute substantially to remedying that deficiency vis-a-vis Australia, by allowing Australia to impose - as an exercise of its own sovereignty - targeted sanctions against human rights violators.
34. Fourth, under the present Sanctions Act regime, the determination of whom is to be sanctioned is solely decided by the Minister and formally imposed by the Governor General18 .There is little oversight or wider participation from Parliament or NGOs or indeed the international community who may be stakeholders or victims of the abuse. In contrast, the US Global Magnitsky Act allows the US Congress, assistant secretaries of state, foreign governments and NGOs (both foreign and domestic) who monitor violations of human rights to submit information on persons to be sanctioned19 . We believe that greater participation from NGOs and Parliament -- which could be a feature of the new Magnitsky-style regime - would be beneficial in aiding Australia achieve its goal of championing human rights.
35. Fifth, enactment of a Magnitsky-style regime would send an important and visible signal that Australia is serious about defending human rights. In its report in 2019, Human Rights Watch reported: “In 2018, Australia started its term on the UN Human Rights Council, but beyond Geneva continued to shy away from publicly raising concerns about human rights in other countries…”20 Implementing the Magnitsky regime and ensuring its strict enforcement would show Australia’s sincerity and seriousness in upholding the human rights values and would set a good precedent for other countries to follow (especially since Australia is taken to be one of the developed countries in the
18 Autonomous Sanctions Act 2011 (Cth) s10. 19
8 world who has gained international respect). It would be an effective deterrent mechanism and send a signal to the global community that Australia will not allow itself to be a safe haven for those who have committed human rights abuses overseas.
F. Types of sanctions that could be imposed under an Australian Magnitsky law
36. The PLG, as a Hong Kong-based group, is highly concerned about the human rights situation in Hong Kong and China. We believe that Australia is uniquely placed to deliver impactful sanctions, and could do so powerfully through a Magnitsky-style regime (especially because Australia is an important trade partner and source of resources for China). We would briefly highlight two types of sanctions that could be imposed through such a regime.
F1. Financial & Economic Sanctions
37. On an individual level, Australia could place asset freezes on individuals committing human rights abuses. Australia could freeze and prohibit all transactions in assets such individuals hold, or have proprietary interests in. This includes (but is not limited to) any property in the form of fixed or current assets jointly or solely held in the name of the individuals.
38. Whilst the execution of these individual sanctions would necessitate credible identification of perpetrators of human rights abuses, we note that citizen-led efforts in Hong Kong, in the form of online databases, already exist to identify such perpetrators where possible.
39. To maximise the effectiveness of such financial sanctions, we recommend the sanctions extend to immediate family members of the identified perpetrators. This applies where such property and interests are in Australia, or are derived from property of such.
40. On a corporate level, we suggest Australia place sanctions on companies that are complicit in the human rights abuses. This could include deregistration or trade prohibition of such companies in Australia or with entities registered in Australia. E.g. Megvii and other companies involved in surveillance at the detention camps in Xinjiang21 .
21 ABC News, ‘UTS, Curtin unis announce reviews over links to surveillance tech used by Chinese Government’ 16 July 2019,
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F2. Immigration and Travel Sanctions
41. We propose that when considering the grant of immigration status, visas for travel or work of the identified perpetrators, Australia should take any abuse of human rights activities into consideration. Further, Australia may consider revocation of any visa documentation regardless of when the visa is or was issued.
G. Some recent human rights problems in Hong Kong
42. The past few years has seen a rapid deterioration of human rights conditions in Hong Kong. In Annex 1 hereto, we highlight some of the recent issues that have raised the most serious concerns in Hong Kong.
43. These serve to illustrate the types of human rights problems that could potentially be addressed by an Australian Magnitsky-style sanction regime, if it were to be enacted.
H. Conclusion
44. In conclusion, we believe there is a clear and compelling case for Australia to enact a Magnitsky-style sanction regime. This would cement Australia’s status as a leading advocate of human rights and anti-corruption. It would give Australia a powerful tool to deal with human rights abuses around the world, including those in Hong Kong and China.
The Progressive Lawyers Group 23 March 2020
10 Annex 1 Some recent human rights problems in Hong Kong
I. Excessive force and other improper policing patterns
1. Excessive force in police officers’ actions has been widely observed since the very beginning of the “extradition bill” saga in mid-2019. For example, evidence examined by Amnesty International shows the police beating up 22 protesters and citizens that were not resisting and already subdued, 23 indiscriminate mass arrests and torture in police detention, and improper use of crowd control weapons in close quarters at the risk of causing permanent 24 injuries or even death.
2. Protesters and citizens faced constant threat of attacks by pro-Beijing thugs after taking part in peaceful marches. One of the most egregious incidents was on 21 July 2019, when an organised, triad-related group in white shirts launched an indiscriminate attack on passengers at a train station and on trains in the Yuen Long district. The police did not respond to emergency calls (despite thousands of calls being made by the public) and the assailants walked away in plain sight of officers nearby; some were even seen chatting with the riot police.
25 3. Similar gang attacks occurred several times in different parts of Hong Kong. The government denied any link to the attacks or the thugs, but certain aspects of the circumstances (e.g. inaction of the police officers at the scene, pro-Beijing lawmaker Junius Ho Kwan-yiu shaking hands with white-clad thugs immediately after the attack26 ) indicate at least a reasonable likelihood that the attacks were state-connected.
22 Amnesty International, ‘How Not to Police a Protest’, 2019,
11 4. Another shocking incident occurred on 31 August 2019 in Prince Edward train station, when riot police began indiscriminately attacking peaceful protestors (with some of the protestors on their knees begging for mercy), and then barred medics and journalists from entering the station.
5. There have also been numerous troubling instances of deaths, suicides, or disappearances, which (despite highly suspicious circumstances) the police have refused to properly investigate. For example, there was the unexplained death of Chan Yin-lam (a 15-year-old student protestor whose naked corpse was found in the sea, despite being a proficient swimmer) and Chow Tsz-lok (a 22-year-old student protestor who fell from a height in suspicious circumstances during a protest, with the police apparently denying him access to an ambulance after his fall).
6. Hong Kong used to take pride in its world-class police force (once nicknamed “Asia’s Finest”); however, there is now widespread resentment and distrust towards the police.
7. Unfortunately, in the context of police brutalities, the current mechanisms only provide for complaints against the police to be heard by the Complaint Against Police Office (CAPO), itself being part of the Police Force despite the conflict of interest. Its oversight body, the Independent Police Complaints Council (IPCC), is only equipped with limited fact-finding power to review how CAPO handled complaints rather than to re-hear the complaints. Only 3-4% of complaints have been found to be substantiated,27 which likely reflects an ineffective disciplinary regime.
8. Although the competence and impartiality of Hong Kong courts are generally highly regarded, the obvious problem is that (with very limited exceptions) it is up to the police themselves and the prosecuting authorities to decide whether to investigate and prosecute police officers who may have violated the rights of citizens.
II. Impact of political screening on freedom of thought and political rights
9. Despite the fact that Hong Kong’s mini-constitution, the Basic Law, promised that the city’s leaders would ultimately be elected through universal suffrage, recent years have shown a retreat from, rather than an advancement towards, this goal.
27 Apple Daily, ‘【監警10年】淪無牙老虎 監警會質詢警權 警方接受率0%’ 5 June 2019,
12 10. Half of the seats in the Legislative Council are elected from so-called “functional constituencies” which purportedly represent the interests of different sectors. In reality, a majority of these seats are controlled by pro-Beijing parties and politicians. Thus, the Legislative Council heavily tilts towards the government and fails to fairly represent the population.
11. Even in popular elections held for the other half of the Legislative Council (and the local-level District Councils), returning officers (who used to have a neutral role of confirming the validity of candidacy based on objective criteria) have started to implement political censorship. Advocates of Hong Kong independence, e.g. Andy Chan Ho-tin and Edward Leung Tin-kei, were the first victims of such censorship. The ideological redline has since tightened; more activists (including well-known student activist Joshua Wong) were disqualified from running for elections.
12. Even pro-democracy candidates who have passed the first hurdle and won the elections still face other obstacles. An aggressive interpretation of the oath-taking clause in the Basic Law by the PRC legislature caused six legislators-elect to be disqualified, on the ground that they were not genuinely in support of the Basic Law which asserts China’s sovereignty over Hong Kong. Meanwhile, in the District Councils (most seats of which were won by the pro-democracy camp in the last election in November 2019), government officials have been uncooperative by threatening to stop providing administrative and secretarial support to the District Councils as well as refusing to attend meetings.
13. Such political screening not only encroaches upon the constitutional right of citizens to vote and to stand for elections, but also further undercuts whatever legislative scrutiny there remains over unjust laws that threaten the liberal way of life in Hong Kong.
III. ‘White terror’ by way of economic pressure from China and Hong Kong government
14. Political screening and censorship exist not just in the context of elections, but extend to businesses and the workplace. In the course of the unrest last year, a number of employees involved in the protests or simply expressed political views on their social media have been summarily dismissed, suspended, or forced to leave their positions by their employers, including both international
13 28 29 corporates such as Cathay Pacific and BNP Paribas as well as 30 state-owned enterprises such as Bank of Communications.
15. Many businesses were shown to go to great lengths to appease China. Even for employees who were not outright dismissed, their political stance would still have an insidious impact in terms of performance appraisals and other means open to the management in their positions of power. As a result, businesses often serve as China’s “long-arm” in enforcing self-censorship, which denudes freedom of thought and other political rights.
16. Meanwhile, many schools were pressured by authorities into taking disciplinary actions against teachers expressing unfavourable political views on their social media accounts. Those schools which insist not to launch a disciplinary hearing risk having their public funding withdrawn or even being deregistered by the authorities. Teachers, like many other employees, have been forced into self-censorship even in personal life, let alone their teaching roles.
IV. Deterioration of press freedom
17. 2019 was called (by the Hong Kong Journalists Association) “one of the worst years” for press freedom in Hong Kong, with indicators of freedoms of speech, press and publication dropping into record low since the handover in 1997.31 Violations of press freedom take multiple forms and are on all fronts, ranging from physical violence against front-line journalists by police; economic and political pressure on media outlets (e.g. revoking working visa of journalists from certain American media outlets32 ); and the economic control of publishers by the PRC Central Government Liaison Office.
28 South China Morning Post, ‘Hong Kong Protests Have Caused Severe Turbulence At Cathay Pacific But Has Airline Done Enough To Appease Beijing After Heads Rolled At Top’, 18 August 2019,
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18. Threats faced by journalists reporting or publishing in Hong Kong are more dire than ever. Further, government’s protections and remedial actions, if any, have been manifestly inadequate and delayed.
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