AUSTRALIA Trends and Developments Contributed by: Dennis Miralis, Jack Dennis, Phillip Salakas and Jessica Semsarian, Nyman Gibson Miralis
Another notable absence is a permit for an orderly wind-down of existing business activities and con- tractual obligations. The impact is compounded by the lack of authoritative guidance on the sanctions regimes, as illustrated by arguments advanced in the Alumina and Tigers Realm cases. No retrospectivity Importantly, the ASO does not issue retrospective per - mits. This has been the ASO’s position since at least 2024. This position accords with legislation as neither the Sanctions Act nor Sanctions Regulations grants such a power to the ASO. As a result, where a potential sanctions issue is raised by a third party but addressed by the ASO with only a warning letter, a business or individual can be left in a legislative limbo. Gap between law and banking policies A subsisting trend among certain banks operating in Australia is that their sanction policies and practices do not account for permits. Accordingly, although an entity may have obtained a permit or fall under a general permit that allows dealings with designated persons, the bank continues to prevent transactions related to the engagement. This gap undermines the effectiveness of permits and has serious ramifications that permits try to address. By way of example, failure to recognise the general permit allowing transactions required by Russian tax law will result in serious consequences for any individ- ual or entity with tax obligations and may even affect their position under Australian law, should there be any correlative aspects, such as foreign tax credits.
Another example is the failure to recognise the general permit allowing the provision of legal services. Preven- tion of payment may lead to: • the denial of legal services crucial to ensuring the sanctions regime is accurate and fair; and • the abrogation of certain individuals’ human rights. This issue may have been even more complicated by the recent High Court decision in Deripaska v Min- ister for Foreign Affairs [ 2026 ] HCA 14 , in which the court held that a designated entity and its lawyer do not even require a permit to receive and provide legal services related to the designation. How the banks will respond to this decision remains to be seen. Unfortunately, this issue was left largely unaddressed by the recent reviews, remaining in the “too hard” bas - ket. Designated individuals are left at the mercy of financial institutions, relying on banks to prepare and implement policies that properly accommodate per- mit requirements. The practical difficulties for banks in doing so are only exacerbated by the piecemeal, fractured nature of the domestic and global sanctions system and by growing obstacles to challenging list- ings.
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