Commentary |
2 April 2021

Australia Is Under Pressure to Implement Magnitsky-Style Laws

Both Washington and the Australian public want more sanctions on China. Originally published in Foreign Policy.

Natasha Kassam
Natasha Kassam

“China stop genocide of Uyghurs,” read the banners held aloft by protesters outside the Chinese consulate in Adelaide, Australia, on March 31. Members of the Uyghur community traveled across Australia to protest the newly expanded consulate, alongside supporters of Hong Kong, Falun Gong, and Tibet. Some Uyghurs held up photographs calling for the return of their family members, disappeared into the camps in Xinjiang.

The protest came a week after the United States, the European Union, Canada, and the United Kingdom coordinated sanctions against Chinese officials involved in atrocities in Xinjiang. Australia welcomed the sanctions in a joint statement with New Zealand, but it put no sanctions of its own in place.

In what appeared to be a bureaucratic hiccup, the initial statement from the United States included Australia on the list. But Australia could not sign up to coordinated sanctions for a simple reason: It is yet to pass its own legislation in the vein of America’s Magnitsky Act. Magnitsky-style laws typically allow governments to place travel and financial sanctions on foreigners who have committed human rights abuses or been involved in significant corruption.

And China has not been added to the list of eight countries that can be sanctioned under Australia’s autonomous regime (sanctions that are implemented without the United Nations Security Council’s imprimatur). The existing legislation would need to be amended to include China, a process that takes around six months. This was the explanation Australia offered for not joining the coordinated action last month.

That may soon change. Australia is under growing pressure to pass Magnitsky-style legislation—from the public, the Parliament, and partners overseas.

A bipartisan parliamentary committee spent 2020 reading submissions and hearing witnesses on the need for such targeted sanctions, and in December 2020 it issued a report calling for Magnitsky to become law in Australia. In an effort to expedite the process, it even attached draft legislation to the report.

The public is also supportive: The annual Lowy Institute poll shows 8 in 10 Australians want travel and financial sanctions imposed on Chinese officials associated with human rights abuses. After years of squabbling, including vitriolic attacks on Australia by Chinese state media and Ministry of Foreign Affairs spokespeople, opinion of China in Australia is at a record low. Even in the Chinese Australian community, which is generally is more positive about China, there is majority support for these sanctions.

The Biden administration will also be watching Australia’s steps closely. While supporting Australia by calling out China’s blatant economic coercion, U.S. Secretary of State Antony Blinken also made clear in a recent speech to NATO that he looks to partners and allies in Washington’s efforts to thwart Beijing’s ambitions where necessary.

Australia’s Foreign Minister Marise Payne told a Senate committee last week that she agreed Australia needed levers that were more than just issuing statements. She said she had written to the prime minister about their response to the committee report.

But the legislation has not made it to the floor—at least not yet. Canberra insiders say 2021 is the year. But a government plagued by multiple rape allegations and a looming federal election have seen the sanctions fall down the priority list.

There’s another reason that Australia may be slow-walking sanctions for Xinjiang: The country is still reeling from an entire year of targeted economic grief, courtesy of the Chinese government (and China normally receives around 40 percent of Australia’s exports). While the Australian government hasn’t blinked on any of the irritants that have hurried the decline in the relationship, there is an unwillingness to add unnecessary fuel to the fire. That’s particularly the case for human rights concerns. While Australia has been at the front of the pack on China policy with national security or sovereignty implications—such as foreign interference or Chinese technology—it has been less willing to enact concrete policies about human rights issues. Australia has preferred to issue statements about the deterioration of institutions in Hong Kong or expressing strong concern about Xinjiang.

Australia does not include human rights protections in its trade agreements, as the United States and EU often do. It has not ratified the International Labor Organization’s Forced Labor Protocol, which could limit the entry of goods into Australia that have been manufactured in Xinjiang using forced labor. Nor has Australia followed international examples of labeling the Xinjiang crisis a genocide, with the government blocking similar resolutions brought by independent senators.

Some of this speaks to a government that is skeptical of multilateralism and elevates sovereignty over collective action. It has largely ignored international criticism of Australia’s treatment of refugees. On a number of occasions, Australia’s prime minister has called out “negative globalism,” which refers to the idea of international institutions demanding conformity rather than independent cooperation on global issues. The issue of Xinjiang to date has not been framed in Australia as risking the complicity of Australians and Australian business, but as a question of international human rights advocacy.

This pick ‘n’ mix approach to China policy was sustainable under the erratic administration of former U.S. President Donald Trump, who was only slightly more popular than Chinese President Xi Jinping in Australia. Defending international norms will be easier under the Biden administration’s approach to allies. But it will mean harder choices for Australia.

The pressure on Australia to pass these laws doesn’t compare to what would follow to actually use them. Australia is already under fire for not expanding its existing sanctions of the junta in Myanmar following the military coup and subsequent killing of civilians there.

When Australia passes its version of Magnitsky legislation—and we’re told it is a matter of when, not if—it will find itself in the unfortunate position of playing catch-up with like-minded countries. Japan finds itself also evaluating its position on sanctions, as it, too, faces increasing pressure from politicians and companies to speak up about Xinjiang.

Despite not having participated in the coordinated sanctions, China’s whataboutism in response to criticism of its Xinjiang policy has already reached Australia. The original “wolf warrior” diplomat Zhao Lijian tweeted that Australia’s offshore processing centers for would-be refugees were described as “concentration camps” by some critics. The Chinese foreign ministry spokesperson also deflected, asking when the Five Eyes would hold Australia accountable for its alleged war crimes in Afghanistan or poor treatment of Indigenous people.

The retaliatory measures that Australia would face were it to enact sanctions would likely be similar to those faced by the U.K., Canada, and the EU. In Australia’s case, key legislators and researchers are already banned from travel to China.

Yet Australia needs to pass its own Magnitsky-style legislation, if only to increase the policy toolkit at its disposal to deal with the rise of authoritarianism around the world.

But more could be done—not only by Canberra, but also by others. Depressingly, sanctions over Xinjiang seek to ensure Australia is not complicit in a genocide, rather than improve the plight of Uyghurs and other minorities. Measures that outlaw forced labor could do even more to shift the cost-benefit calculation for companies operating in the region.

These sanctions will not change Beijing’s calculus in the short term—if anything, it has doubled down through its Xinjiang cotton campaign. But there is a chance that this collective signaling will set off warning bells about the Beijing 2022 Olympics. Calls to boycott the games will only grow in the west (though Australia notably did not join the United States in boycotting the 1980 Moscow Olympics).

China will look to coax and coerce full international participation from countries and sponsors alike at the Olympics; coordinated action on sanctions might signal more obstacles for that national project. Passing an Australian Magnitsky Act is only the beginning. More pressure and more tough choices are coming for Australia.