As the global community grapples with the genocide on the Palestinian people in Gaza playing out before their eyes and, due to the Attorney-General’s fiat, have no legal standing under the Convention to hold those responsible accountable, it is critical to review systems of accountability that exist in Australia, and in the name of Truth-telling, review this country’s implementation and handling of the crime of the genocide.
Senator THORPE (Victoria) (16:16): I move:
That this bill be now read a second time.
I seek leave to table an explanatory memorandum relating to the bill.
Leave granted.
Senator THORPE: I table an explanatory memorandum and seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The speech read as follows—
This Bill is a simple change, and as laid out in the Explanatory Memorandum, makes only two substantive amendments to the Criminal Code Act 1995 (Cth) (Criminal Code) removing the following restrictions so-called Australia included in their domestic implementation of the Conventionon the Prevention and Punishment of the Crime of Genocide (the Convention):
1. the restrictions on commencement of proceedings under Division 268 of Chapter 8 of the Criminal Code, relating to genocide, offences relating to crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court, to those which have gained the written consent of the Attorney-General, whom they will also be prosecuted in the name of; and
2. that a decision by the Attorney-General to give, or to refuse, a consent under section 268.121 is final and cannot be reviewed or appealed, except in the limited circumstance of judicial review by the High Court under section 75(v) of the Constitution.
These changes facilitate truth telling and accountability, without which, there will be no change. Unless governments commit and choose to be held, and hold others accountable, crimes against humanity, genocide, war crimes, suffering and mass death will happen again, over and over again. The lack of proper adherence to international human rights is not because the goals are unable to be reached or there has not been enough time, it is due to lack of prioritisation of our collective humanity and lack of accountability. This Bill importantly strengthens accountability for breaches of the Convention, upholds the original spirit and intention of the Convention which intended to ensure genocide would never happen again, and improves the proper domestic implementation of the Convention.
This Bill seeks to uphold the rule of law, a fundamental feature of the legal system of so-called Australia, being the principle that no person, government official or government is above the law. A critical aspect of the rule of law is reviewing, updating and removing laws to make sure they are fair and reflect current social values and it is clear there is an urgent need to prioritise, promote and protect human rights, international humanitarian law, and our collective and individual humanity.
Issues with the operation of the Attorney-General’s f iat
The principle behind the restrictions, commonly known as the Attorney-General’s fiat, is to safeguard against inappropriate prosecutions as noted by Note Verbal No. 38/2018 of the Permanent Mission of Australia to the United Nations. However, historically this country has a poor record of prosecuting persons for international crimes, or even formally recognising when crimes like genocide have occurred, despite overwhelming evidence to the contrary. With respect to state recognition of genocide, academic Dr Melanie O’Brien notes that ‘states…are generally reluctant to recognise genocide’ because it may trigger obligations under the Convention or because of the potential repercussions recognition may have on relations with the perpetrator state. Ellen VanBeukering, an Australian Foreign Policy Fellow, discussed possible reasons for the Australian Government’s reluctance to formally recognise genocide in China, and stated the reason for this lack of action may lie closer to home than we realise: Australia’s colonial past and its mistreatment of First Peoples could be setting a precedent for the nation’s approach to acts of genocide.
As noted by Michael (Ghillar) Anderson, and by academics Anna Hood and Monique Cormier, this provision ‘effectively provides [the Attorney-General] with a carte blanche to determine whether a prosecution makes it to court’ and reference a situation where this has occurred. The alarming rate of child removals is only possible because the Commonwealth of Australia has blocked the full force of the Conventionby inserting an Attorney-General’s fiat. In addition, the prospect of litigation by First Peoples no doubt ensured that when the Commonwealth Government finally legislated to make genocide a crime in Australia it did not do so retrospectively to avoid accountability. However, this has not prevented other states from recognising genocide, both at home and abroad, for example, Canada has recognised eight situations where genocide has occurred including on 27 October 2022, Canada’s House of Commons unanimously passed a motion acknowledging the Indian Residential School System as a genocide, following Pope Francis acknowledging it as a genocide.
Indeed, the Attorney-General’s fiat itself has functioned as an effective veto power to commencing proceedings under the Convention in the past and functioned as a barrier to justice for victims and survivors of these atrocious crimes. While it is unclear how many times the Attorney-General’s fiat has been used to quash proceedings, there are two well known cases for genocide that have been brought. The first attempted to commence a prosecution of Sri Lankan President, Mahinda Rajapaksa, for war crimes and crimes against humanity, and the second against Aung San Suu Kyi, the then Minister of the Office of the President and Foreign Minister of the Republic of the Union of Myanmar. Both times the Attorney-General of the time refused to grant consent, the reasons of which have been critiqued. In the case of Taylor v Attorney-General (Cth) [2019] HCA 30 a slim 4:3 majority dismissed the application on the basis that a private person, cannot bring prosecutions under Division 268. The International Law Association Reporter noted at the time that this “decision dilutes, yet again, Australia’s capacity to contribute to a system of international criminal justice in a robust way” and that is likely to be the last time a private citizen will seek to commence a prosecution.
As noted by Academics Anna Hood and Monique Cromier in the Melbourne Journal of International Law, in making their decision, the Attorney-General has near unfettered discretion, has no criteria to apply, and there is no requirement to provide reasons. As the operation of section 268 of the Criminal Code does not enliven the jurisdiction of the Administrative Decisions (Judicial Review) Act 1977 (Cth) reasons for the decision cannot be demanded, nor is it subject to any form of merits review by, for example, the Administrative Appeals Tribunal. While the decisions of the Attorney-General can theoretically be held to account through the mechanism of parliamentary question time, a 2008 study by Andrew McGowan found that Australia’s question time is less effective at holding the executive to account than the Commonwealth parliaments in Canada, New Zealand, and the UK.
It has been pointed out that the low level of accountability that surrounds the Attorney-General’s decision-making powers exacerbates the problems that arise from the broad discretion and potential for real or perceived political bias. Amnesty International, in a 2004 report on the implementation of the Rome Statute, raised concerns that States, including Australia, were including the requirement of consent to prosecute by the Attorney-General, a political official, in their national implementing legislation’ and stated explicitly that “such a requirement should be excluded in all implementing legislation”. Further, in recognising that genocide was virtually always committed with the complicity of the state, it was the intention of the Conventionthat any person should be able to commence a case against genocide. The high level of control and discretion granted to the Attorney-General is thus not appropriate, erodes public trust and transparency, and has insufficient accountability or review mechanisms.
Being able to commence proceedings under Division 268 of Chapter 8 of the Criminal Code without the real or perceived bias of political priorities influencing government decision making in both the domestic and international area, increases trust in government institutions and increases transparency, accountability, and democracy. It does this dual-fold, enabling the people of this country to pursue justice for wrongs committed under the Convention, albeit through the colonial systemically racist legal system, and by enabling accountability of previous decisions of the Attorney-General prohibiting proceedings through judicial review.
Consequently, it also increases the efficacy of the international criminal justice system, which is significantly dependent upon the will of domestic states to prosecute individuals suspected of perpetrating genocide, crimes against humanity and war crimes. Under universal jurisdiction, Australia has the legal capacity to investigate and prosecute individuals suspected of committing war crimes, crimes against humanity and genocide regardless of where they are committed or by whom. This was noted by the Note Verbal No. 38/2018, Permanent Mission of Australia to the United Nations on Australian Views on the Scope and Application of the Principle of Universal Jurisdiction. As noted by Shirley Scott in the Australian Journal of Human Rights, universal jurisdiction is a critical component of the international collective system of justice which attempts to ensure “that where a serious crime of international concern has been committed, States which have jurisdiction are unable or unwilling to act, and international courts and tribunals lack the jurisdiction or practical means of prosecuting the perpetrators of grave crimes, then another State may take up the action on behalf of the international community”.
There are currently 153 states who are party to the Convention including so-called Australia. Australia as party to the Convention undertakes “to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III” (Article V of the Convention). The “direct obligation to prevent genocide” of state parties was confirmed by the ICJ in the BosniaandHerzegovina v SerbiaandMontenegro case, including the responsibility “to employ all means reasonably available to them, so as to prevent genocide so far as possible.” This is an obligation on all state parties. The carrying out of this obligation is exemplified by South Africa who brought the case of Genocide against the Israeli regime.
Delayed Domestic Implementation of the Convention in Australia
After the horrors of the Holocaust, the Convention grew out of a resolution adopted by the UN General Assembly on their first session on 11 December 1946. The Convention was the first human rights treaty adopted by the General Assembly of the United Nations on 9 December 1948 and signified the international community’s commitment to ‘never again’ see the horrors of genocide—so-called Australia, made a strong appeal for its unanimous and speedy acceptance.
So-called Australia signed the Convention on 11 December 1948, with support from then Labor Prime Minister, Ben Chifley, and the then Liberal opposition leader, Robert Menzies, both supporting that ratification. Despite this, successive governments failed to follow through on the requirement to enact the necessary domestic legislation to give force to the convention for over 50 years.
In the 1990s, the International Criminal Court was being established and, domestically, public attention turned to the possibility of genocide having been perpetrated against this country’s First Peoples. The Royal Commission into Aboriginal Deaths in Custody referred to the Convention, and the Bringing them home report, released in May 1997 which provides 689 pages of damning indictment of the genocidal policies used against Australia’s First Peoples, with a whole chapter to “Contemporary separations”. The report found that the removal of Indigenous peoples had constituted genocide as defined in the Convention’. The report recommended the full domestic effect to the Convention. The lack of domestic implementation was brought to the public’s attention following several high profile court cases brought by First Peoples alleging genocide: Kruger v Commonwealth, where the court wrongfully said the removal of children from their parents was in their “best interests”, Nulyarimma v Thompson which called out the “ten point plan” on native title as constituting acts of genocide, and Buzzacott v Hill where the plaintiff alleged the failure to list Arabunna Peoples land as world heritage was genocide. The latter two cases were dismissed on the basis that genocide was not an offence at Australian law. It was clear Australia was in breach of its obligations under international law.
By then it had become the standard response from the Federal Government to say that while they accepted the responsibility to enshrine domestic legislation, the laws already in force in Australia provided substantially for the punishment of the classes of acts described in the Convention. By way of example, on 30 March 1949, the Secretary of the Department of External Affairs, John Burton, wrote to the Attorney-General’s department that he would be in general agreement with the view that existing Australian law provided effective penalties for the various acts described in the Convention as genocide. This was despite there being no provision for ‘genocide as such’ under the existing laws of the Commonwealth and the States and significant discrepancies in the identified analogous legislation. In 1992, the Human Rights Subcommittee of the Joint Parliamentary Committee on Foreign Affairs, Defence and Trade concluded that it is difficult “to know … whether the failure to legislate has been a matter of neglect or purposeful inaction”. The Committee also recommended that the Australian Government introduce legislation to implement the Convention.
Senator Brian Greig of the Australian Democrats introduced the Anti-Genocide Bill 1999 and, in his second reading speech, Senator Greig referred to the prevention and punishment of the crime of genocide as ‘unfinished business’ of the Commonwealth Parliament, and rejected the view that existing criminal laws at State and Territory level were sufficient protection against genocide which had been repeated by the Attorney-General of the time as recently as September 1999. While the Bill did not pass, the Australian Democrats instigated Australia’s first and most significant parliamentary inquiry into Genocide as a crime in Australia, with the support of all parties except One Nation.
Shortly thereafter, the Federal Government passed the International Criminal Court (Consequential Amendments) Bill 2002, which received Royal Assent on 27 June 2002. When passing this amending bill, the Government included provisions providing that it did not apply to events which occurred prior to the commencement of the International Criminal Court (Consequential Amendments) Act 2002 on 26 September 2002, and the provisions that are the topic of this Bill, is commonly known as the Attorney-General’s fiat.
Conclusion
This Bill brings a measure of accountability, as we see a global awakening to the horrors of modern genocide being committed across the world including in Sudan, the Congo, West Papua, occupied Palestine and so-called Australia. It represents an attempt to implement human rights more fully in this country as they were set out by the United Nations, and to remain accountable to upholding them. As a proud Djab Wurrung Gunnai and Gunditjamara woman, with some of the largest and most brutal massacres of this country having killed my people, I stand with all victims of genocide, and I will call it out wherever it occurs. I will stand against powers who would justify and legitimise the oppression, dispossession and genocide of First Peoples, and the occupation of Indigenous lands here and everywhere.
As the global community grapples with the genocide on the Palestinian people in Gaza playing out before their eyes and, due to the Attorney-General’s fiat, have no legal standing under the Convention to hold those responsible accountable, it is critical to review systems of accountability that exist in Australia, and in the name of Truth-telling, review this country’s implementation and handling of the crime of the genocide. The Attorney-General’s fiat prevents the rule of law, limits the ability of the Convention to operate as intended and can have a major impact on Australia’s ability to prevent and punish genocide and related atrocity crimes with unimaginable potential consequences.
As a democratic country who was very supportive of the original intention of the Convention, the Federal Government should have no problem passing this Bill and stating their intention to be accountable to the people who they serve. Passing this Bill is not a substitution for enshrining the United Nations Convention on the Prevention and Punishment of the Crime of Genocide in full into domestic legislation and indeed fully upholding human rights in this country.
Senator THORPE: I seek leave to continue my remarks later.
Leave granted; debate adjourned.