Chapter 1Introduction
1.1On 8 February 2024, the Senate referred the Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024 (theBill) to the Legal and Constitutional Affairs Legislation Committee (thecommittee) for inquiry and report by 13 November 2024.[1]
1.2The Bill would amend the Criminal Code Act 1995 (the Criminal Code) to uphold the spirit and intention of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (the Convention), and Australia’s role in the prevention and punishment of the worst crimes of humanity.[2]
Conduct of the inquiry and acknowledgement
1.3In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations and individuals, inviting them to make a submission by 5 July 2024. This date was subsequently extended to 26 July 2024. The committee received 93 submissions, which are listed at Appendix 1.
1.4The inquiry received a small number of submissions from those with expertise in international law, which did not reflect a diversity of views on the implementation and application of the existing legislation.
1.5The committee held a public hearing in Canberra on 30 July 2024. A list of the witnesses who appeared at the hearing is at Appendix 2.
1.6The committee thanks those individuals and organisations who made submissions and who gave evidence at the public hearing.
Structure and scope of the report
1.7This report comprises two chapters:
Chapter 1 provides background information relating to the Bill, sets out its key provisions, and notes consideration of the Bill undertaken by other parliamentary committees; and
Chapter 2 examines some of the key issues raised in relation to the Bill, before setting out the committee’s findings and recommendations.
Note on references
1.8In this report, references to the Committee Hansard are to the proof (that is, uncorrected) transcript. Page numbers may vary between the proof and the official transcript.
Background and purpose of the Bill
1.9Australia is party to numerous international treaties and conventions that require State Parties to prevent, prosecute and punish the offences of genocide, crimes against humanity and war crimes (collectively, atrocity or international crimes). These include:
the Convention—ratified by Australia on 8July 1949; entry into force 12January 1951;[3] and
the Rome Statute of the International Criminal Court (the Rome Statute)—ratified by Australia on 1 July 2002; entry into force 1 July 2002.[4]
1.10The Rome Statute was incorporated into Australia’s domestic law on 27 June 2002, when the International Criminal Court Bill 2002 and the International Criminal Court (Consequential Amendments) Bill 2002 (the Consequential Amendments Bill)received Royal Assent.[5]
1.11In particular, the Consequential Amendments Bill amended the Criminal Code to enact the crimes punishable by the International Criminal Court (ICC) as crimes in Australian law.[6] These crimes are codified in Articles 6–8 of the Rome Statute and Subdivisions B–H of Division 268 of Chapter 8 of the Criminal Code.
1.12The Consequential Amendments Bill also amended the Criminal Code to establish various legal principles that would apply to the prosecution of the offences against Division 268. For example, the primacy of Australia’s criminal jurisdiction (section 268.1 of the Criminal Code) in relation to the jurisdiction of the ICC.[7]
Key provisions
1.13The Bill proposes two substantive amendments to the Criminal Code, namely: the repeal of sections 268.121 and 268.122 (item 1 in schedule 1).
Section 268.121 (Bringing proceedings under Division 268)
1.14Subsection 268.121(1) provides that proceedings for an offence under Division 268 cannot commence without the Attorney-General’s written consent. Only the Attorney-General can prosecute an offence, and a person may be arrested, charged, remanded in custody or released on bail before the necessary consent has been given (sub-sections (2) and (3), respectively).
1.15The Bill would repeal this provision in its entirety with application to proceedings filed on or after commencement of the Bill regardless of when the alleged offence occurred (item 2 in schedule 1). The practical effect of this amendment would therefore be to eliminate the requirement for consent and allow for private prosecutions whenever the alleged offence occurred.
1.16The Explanatory Memorandum (EM) to the Bill states that section 268.121 is contrary to the Convention, which intends for any person to be able to commence a prosecution, and also to the rule of law, as there is a potential conflict of interest for government, its agencies or representatives who could be involved in international crimes.[8]
Section 268.122 (Attorney-General’s decisions in relation to consents to be final)
1.17Subsection 268.122(1) provides that, subject to the original jurisdiction of the High Court of Australia, a decision by the Attorney-General to give, or to refuse to give, consent under section 268.121:
(a) is final; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari.[9]
1.18The Bill would repeal section 268.122 in its entirety with application to decisions made by the Attorney-General prior to commencement. The practical effect of this amendment would be to allow for the Attorneys‑General’s previous decisions under section 268.121 to be reviewed.
1.19In her second reading speech, Senator Lidia Thorpe, who introduced the private senator’s bill, stated that the proposed amendments would remove the two ‘restrictions’ contained in sections 268.121 and 268.122, to facilitate truth telling and accountability:
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.[10]
Examination by other parliamentary committees
1.20When examining a bill or bills, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
1.21The Scrutiny of Bills Committee assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, the rule of law and on parliamentary scrutiny. The Scrutiny of Bills Committee examined but did not comment on the Bill.[11]
1.22The Human Rights Committee examines bills and legislative instruments for compatibility with human rights and reports its findings to both Houses of Parliament. The Convention is not one of the human rights instruments that this committee examines for compatibility and the Human Rights Committee had no comment on the Bill.[12]