The Criminal Offence of Contravening an Australian Sanction

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By Paul Gregoire and Ugur Nedim

As is well understood, Australia, along with the EU, the US, the UK, NZ, and a number of other nations, such as Japan and South Korea, have placed heavy sanctions upon the Russian Federation to punish it over its invasion of Ukraine.

India has not, but our PM Scott Morrison has told Narendra Modi that he can understand this.

Many of these sanctioning nations are also funnelling weapons into Ukraine, which, whilst assisting its local defence forces, coupled with the starving of the Russian economy, could be a convenient way to entrench Putin’s nation in an ongoing war.

A prolonged war of attrition would incrementally weaken Russia’s position on the international stage to the benefit of the United States and at the cost of numerous Ukrainian bodies.

Since Russian president Vladimir Putin commenced his invasion of Ukraine on 24 February, Australian foreign minister Marise Payne has released eleven media statements specifically about our nation’s sanctioning of Russia over its preemptive attack on its neighbour.

The last was a 4 May release, which outlined “the Australian government has imposed targeted financial sanctions and travel bans on a further 110 individuals in response to Russia’s illegal war against Ukraine, made up of senior Ukrainian separatists and Russian members of parliament”.

Our government commenced this process of sanctioning Russia in 2014, and had since further extended it in 2015, before significantly upping these measures since February this year.

And the mounting sanctions Australia has been imposing upon Russia have been facilitated via the provisions of the Autonomous Sanctions Act 2011 (Cth) (the Act), and a number of other recently passed pieces of legislation.

The offence of contravening a sanction

Then federal foreign affairs minister Kevin Rudd introduced the Act into parliament in early 2011 and oversaw its passing that May. It empowers government to impose official sanctions against “specific foreign governments, individuals and entities” that are independent of the UN Security Council.

In his second reading speech on the Act, Rudd said it was triggered by Iran’s nuclear ambitions, and he listed our nation and a number of others, which are now currently sanctioning Russia, as having been imposing autonomous sanctions upon Tehran back then.

Section 6 of the Act empowers the foreign minister to create a sanction law. The Act then vaguely defines a sanction law as something that contradicts the powers bestowed in section 16, which basically sets out that it is an offence to break such a law and it contains the penalties for doing so.

An individual commits the act of contravening a sanction if they engage in conduct that’s opposed to the stipulations of a sanction law or a condition of its authorisation.

A person found guilty of breaking this law can be sent away for up to 10 years and/or fined $555,000. If this breaching of a convention involves a transaction, the fine applied can either be up to 3 times the value of the transaction or the regular fine, whichever is steepest.

A body corporate that commits the same crime and is found guilty, will be fined either 3 times the value of its transaction/s or $2,220,000.

Section 10 of the Act outlines what sort of restrictions a sanction can involve, which include a ban on persons or entities, restrictions on dealings with their assets, restrictions on the procurement or supply of certain goods or services, and compensations for local entities financially hit by sanctions.

Sanctioning Russia

Then prime minister Tony Abbott first applied autonomous sanctions upon Russia on 1 September 2014, in relation to the “ongoing threat to the sovereignty and territorial integrity of Ukraine” it posed. And then foreign minister Julie Bishop announced their strengthening on 31 March 2015.

Bishop outlined that the sanctions that had been placed on Russia and Ukraine seven years ago, included bans on weapons trading, on exporting petroleum to Russia and on exporting fossil fuel products to Crimea, as well as investment bans on certain commercial trading.

Today, those sanctions remain in place, and a number of others have been imposed relating to the provision of assets to certain designated persons or entities, or dealing with their pre-existing assets, as well as travel bans that have been placed upon these designated persons.

Under Bishop, Australia established the Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Russia and Ukraine) List 2014, which currently outlines over 170 designated persons and more than 50 designated entities that the sanctions are covering.

These designated people and entities further appear on this nation’s broader Consolidated List, which consists of “all persons and entities who are subject to targeted financial sanctions under Australian sanctions law”.

The Act is also accompanied by the Autonomous Sanctions Regulations 2011 (Cth). Regulation 5 currently outlines what kind of commercial activity with Russia an Australian person or entity would be committing a criminal offence over for partaking in.

While a major win for our country’s sanctioning of Russia program was the passing of the Autonomous Sanctions (Export Sanctioned Goods—Russia) Designation 2022 (Cth), which prohibited the exportation of aluminium ore, as well as related products, to Russia.

Further offences

Section 17 of the Act criminalises giving false or misleading information in connection with a sanction. It can see an individual caught partaking in this behaviour either with a Commonwealth entity or another individual serving up to 10 years prison time and/or being fined $555,000.

Section 19 of the Act empowers the CEO of a designated Commonwealth entity to require either information or documents in order to determine whether a sanction law has been broken, and section 21 makes it a crime not to provide this information, which carries up to 12 months inside.

Sanctioning Ukraine

As has already been noted, Australia has been placing sanctions upon Ukraine since 2014, which has included the listing of designated persons and entities that Australians are restricted from having anything to do with in a business sense.

In terms of the Ukrainian nationals who appear on the government’s Consolidated List, Australians are restricted from dealing with their assets, while the designated person can have their assets frozen, and a travel can be placed on their ability to enter Australia.

“The Australian government reiterates our unwavering support for Ukraine’s sovereignty and territorial integrity, and for the people of Ukraine,” Payne said in a 25 March statement about additional restrictions being placed on both Russia and Belarus.

“Australia, in close coordination with our partners, will continue to impose further sanctions to inflict significant costs on those in Russia and Belarus who bear responsibility or hold levers of power.”

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