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Administrative law is the body of law that regulates government decision making. Access to review of government decisions is a key component of access to justice. The Australian Government works to improve the quality of access to justice for individuals by adopting:
The federal administrative law systemAdministrative law offers accountability mechanisms that apply to government decision making about individual matters. Accountability mechanisms include: The Australian Government Administrative Law Policy Guide helps policy makers understand and identify administrative law issues in draft legislation or proposals.
The Attorney-General's roleThe Attorney-General has policy responsibility for administrative law. This includes oversight of the Administrative Appeals Tribunal and legislative instruments. The Attorney-General's approval must be sought for amendments to Acts for which they have responsibility, particularly the following: The Legislation Act 2003 provides for the making, registration, publication, parliamentary scrutiny and sunsetting of Commonwealth delegated legislation. Administrative Review CouncilThe Administrative Review Council (ARC) was an independent policy advisory body established under the Administrative Appeals Tribunal Act 1975. The ARC issued reports and best practice guides on administrative law issues. In 2015, the ARC was discontinued and its functions were consolidated into the Attorney General's Department. The Minister for Finance announced this as part of the May 2015 Smaller Government reforms. The ARC was not a merits review body. It did not examine individual claims or hear appeals. For copies of the ARC's 50 published reports and other publications, including its best practice guides, visit the Administrative Review Council – Publications page. More informationGovernment agencies can seek specific advice on decision-making structures, review of decisions, regulatory powers provisions and legislative frameworks by emailing . Advice on matters relating to sunsetting under the Legislation Act can be sought by emailing .
For multinational companies, political risk refers to the risk that a host country will make political decisions that prove to have adverse effects on corporate profits or goals. Adverse political actions can range from very detrimental, such as widespread destruction due to revolution, to those of a more financial nature, such as the creation of laws that prevent the movement of capital. Instability affecting investment returns could stem from a change in government, legislative bodies, other foreign policymakers, or military control.
In general, there are two types of political risk: macro risk and micro risk. Macro risk refers to adverse actions that will affect all foreign firms, such as expropriation or insurrection, whereas micro risk refers to adverse actions that will only affect a certain industrial sector or business, such as corruption and prejudicial actions against companies from foreign countries. All in all, regardless of the type of political risk that a multinational corporation faces, companies usually will end up losing a lot of money if they are unprepared for these adverse situations. For example, after Fidel Castro's government took control of Cuba in 1959, hundreds of millions of dollars worth of American-owned assets and companies were expropriated. Unfortunately, most, if not all, of these American companies had no recourse for getting any of that money back. So how can multinational companies minimize political risk? A couple measures can be taken even before making an investment. The simplest solution is to research the riskiness of a country, either by paying for reports from consultants that specialize in making these assessments or doing research yourself using the many free sources available on the internet (such as the U.S. Department of State's background notes). Then you will have the more informed option to not set up operations in countries considered political risk hot spots. While that strategy can be effective for some companies, sometimes the prospect of entering a riskier country is so lucrative that it is worth taking a calculated risk. In those cases, companies can sometimes negotiate terms of compensation with the host country, so there would be a legal basis for recourse if something happens to disrupt the company's operations. However, the problem with this solution is that the legal system in the host country may be substantially different from the company's country, and in some places, foreigners rarely win cases against a host country. Even worse, a revolution could spawn a new government that does not honor the actions of the previous government. If you do go ahead and enter a country considered at-risk, one of the better solutions is to purchase political risk insurance. Multinational companies could go to one of the many organizations that specialize in selling political risk insurance and purchase a policy that would compensate them if an adverse event occurred. Because premium rates depend on the country, the industry, the number of risks insured, and other factors, the cost of doing business in one country may vary considerably compared to another. However, buying political risk insurance does not guarantee that a company will receive compensation immediately after an adverse event. Certain conditions, such as trying other channels for recourse and the degree to which the business was affected, must be met. Ultimately, a company may have to wait for months before receiving any compensation.
The Australian Sanctions Office (ASO) is the Australian Government’s sanctions regulator. As the sanctions regulator, ASO:
The Australian Sanctions Office sits within DFAT’s Regulatory Legal Division in the Security, Legal and Consular Group. What are sanctions?The Charter of the United Nations does not expressly define 'sanctions', but Article 41 is generally understood as providing a definition. It refers to:
The Explanatory Memorandum to the Autonomous Sanctions Bill 2010 defines 'sanctions' as:
Sanctions impose restrictions on activities that relate to particular countries, themes of conduct, goods and services, or persons and entities. Aims of sanctionsThe Explanatory Memorandum to the Autonomous Sanctions Bill 2010 provides that the aims of sanctions are:
Two types of sanctions regimesAustralia implements United Nations Security Council (UNSC) sanctions regimes and Australian autonomous sanctions regimes. UNSC sanctions regimes are imposed by the UNSC and Australia is obliged to implement them as a matter of international law. Australian autonomous sanctions regimes are imposed and implemented by the Australian Government as a matter of Australian foreign policy. Australian autonomous sanctions regimes may supplement UNSC sanctions regimes, or be separate from them. Australia currently implements the sanctions regimes shown in the diagram below:
Alternative text version Australian sanctions lawsAustralia implements UNSC sanctions regimes and Australian autonomous sanctions regimes under Australian sanctions laws. UNSC sanctions regimes are primarily implemented under the Charter of the United Nations Act 1945 (the United Nations Act) and its sets of regulations. There is a separate set of regulations under the United Nations Act for each UNSC sanctions regime. Australian autonomous sanctions regimes are primarily implemented under the Autonomous Sanctions Act 2011 (the Autonomous Act) and the Australian Autonomous Sanctions Regulations 2011. There is only one set of regulations under the Autonomous Act. DFAT administers the United Nations Act, the Autonomous Act and their regulations. Types of sanctions measuresDifferent sanctions regimes impose different sanctions measures. The United Nations Act, the Autonomous Act and their regulations use common terms to describe sanctions measures. Using those terms, sanctions measures may include general prohibitions on:
For detailed information on the sanctions measures imposed by each sanctions regime that Australia implements, go to sanctions regimes. DFAT maintains a Consolidated List of all persons and entities listed for the purposes of sanctions regimes implemented under Australian sanctions laws. Sanctions permitsThe Minister for Foreign Affairs or the Minister's delegate may be able to grant a sanctions permit authorising an activity that would otherwise contravene Australian sanctions laws. Different sanctions regimes impose different criteria which must be satisfied before the Minister or the Minister's delegate may grant a sanctions permit. The Minister or the Minister's delegate may attach conditions to a sanctions permit. You can submit an application for a sanctions permit by registering as a user of Pax. DFAT responds to applications submitted on Pax as quickly as possible, subject to the current Pax caseload. DFAT may need to consult other Australian Government agencies, other countries, or a Sanctions Committee of the UNSC. DFAT is committed to administering Australian sanctions laws diligently, but also in a way that facilitates trade wherever possible. Sanctions offencesContravening Australian sanctions laws can be a serious criminal offence. Penalties include up to ten years in prison for individuals, and substantial fines for individuals and bodies corporate. Australian sanctions laws apply broadly, including to activities in Australia, and to activities by Australian citizens and Australian-registered bodies corporate overseas. For detailed information on sanctions offences, go to sanctions offences. In addition to considering Australian sanctions laws, we encourage you to consider whether your activity may be subject to other Australian laws or the sanction laws of another country. If so, you should consider seeking legal advice as to how those laws may impact upon your activity. |