Chapter 2Key issues
2.1Overwhelmingly, submitters and witnesses supported the Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024 (the Bill) or called for other changes to the way in which international crimes are investigated and prosecuted in Australia.
2.2They argued, essentially, that sections 268.121 and 268.122 of the Criminal Code Act 1995 (the Criminal Code) prevent the prosecution and punishment of international crimes, contrary to Australia’s international law obligations.
2.3As expressed by Dr Souheir Edelbi, an international criminal law expert based at Western Sydney University, and Dr Sara Dehm, an international human rights lawyer at the University of Technology Sydney:
The Bill will ensure Australian federal legislation concerning the prosecution of serious crimes of international law (namely, the crime of genocide, crimes against humanity and war crimes) is consistent with Australia’s obligations under international law to end impunity for acts of mass atrocities.
International law and atrocity crimes
2.4Multiple submitters and witnesses referenced Australia’s international law and customary international law obligations to combat impunity for international crimes.
2.5Dr Rachel Killean, an international criminal law expert at the University of Sydney Law School, submitted that these international legal norms ‘reflect the belief that atrocity crimes ‘shock the conscience of humanity’’.
2.6The Australia Palestine Advocacy Network (APAN) argued that the prevention of international crimes is a fundamental obligation for States that are committed to upholding international law and moral principles:
This imperative stems from the recognition that atrocities, such as genocide, war crimes, ethnic cleansing, and crimes against humanity, not only inflict severe human suffering but also violate the core principles of human rights and dignity.
2.7The ANU Law Reform and Social Justice Research Hub (LR&SJRH) submitted that, following World War II, the international legal order is premised upon the principles of justice, equality and dignity for all:
As a nation which has repeatedly pledged its commitment to these principles, we have a duty to fulfil our global commitments. Upholding our international legal obligations is also important for pragmatic reasons. Breaching our legal responsibilities compromises Australia’s reputation on the world stage and weakens the overall legitimacy of international law.
Obligations to prevent and punish
2.8Many submitters and witnesses argued, however, that Australia’s criminal justice system has failed to prevent and punish international crimes.Mr Nasser Mashni, President of APAN, expressed the view that, despite its commitments, Australia does not make decisions based on considerations of humanity:
Australia speaks a big game diplomatically about international law and rules-based order…It applies those sanctions and layers of diplomatic pressure when and where it wants. Decisions are made politically, not based on humanity.
2.9Mr Adel Salman, President of the Islamic Council of Victoria (ICV), referenced the situations in Myanmar and Palestine, saying that the international community has failed miserably to honour its commitments since World War II, including Australia:
Australia should be a leader. We are a wealthy nation. We value human rights; at least that's what we say. We have a stable political system that allows us to focus on what happens outside our borders and not be occupied by internal division and civil war within our borders. We don't experience the issues that other states are suffering in terms of turmoil, disasters and civil conflict. Australia is stable. We have the wealth, means and stability to actually be a leader in upholding international law. It is past time that we did.
2.10Dr Edelbi and Dr Dehm described Australia as having ‘an abysmal record of prosecutions’. For example:
…to date, there have been no successful prosecutions for the crime of genocide in Australia, despite sustained calls from victim/survivor communities to do so, and despite there being credible evidence warranting further investigations and even prosecution of people in Australia. Thisincludes credible evidence of atrocity crimes committed by Australian citizens…as well as atrocities committed by noncitizen temporary visitors to Australia.
2.11The ICV agreed that Australia’s record of pursuing and facilitating access to justice for international crimes is ‘deplorable’. Itssubmission highlighted the delay in enacting offences for international crimes and the fact that that legislation did not provide for retrospective application:
Firstly, the delay in criminalising genocide between the signing of the Genocide Convention in 1949 and enacting the International Criminal Court (Consequential Amendments) Act 2002 barred access to justice for victims of these crimes for 53 years. Beyond that, the legislation passed in 2002 failed to retrospectively criminalise genocide and crimes against humanity, despite Australia recognising the illegality of these crimes in 1949 by signing the Genocide Convention and Geneva Conventions. As a result, victims of these crimes before 2002 have no effective means of pursuing justice, despite Australia’s stated long-standing commitment to “prevent and punish” acts of genocide, and protect civilians in times of war or occupation, including enacting appropriate penalties for contraventions of these laws.
2.12DrAmina Adanan and Dr Rhiannon Bandiera, Co-Directors of the Research Centre in International Justice, School of Law and Criminology at Maynooth University (Ireland), particularly commented on the implications for First Nations people in Australia:
[The International Criminal Court (Consequential Amendments) Bill 2002 (the Consequential Amendments Bill)] was not retrospective and so the amendment did not provide a basis for litigation on behalf of the ‘Stolen Generations’, as well as for other colonial harms caused to Aboriginal and Torres Strait Islander peoples since the start of British colonisation. Though it remains an important amendment in terms of the recognition of atrocity crimes in Australian criminal law, in practice, their prosecution continues to be limited due to the so-called Attorney-General’s fiat [see ‘Attorney-General’s consent’ below].
2.13The Tomorrow Movement submitted that there is a significant body of research to show that international crimes can have intergenerational impacts. For that reason, it argued that the domestic legislation should retrospectively criminalise atrocity crimes:
The restriction of the hearing of alleged cases of genocide to after a certain date ignores the ongoing hardship that generations of peoples subjected to these crimes face. The effects of these crimes continue to be felt by children and young people related to survivors of these crimes for generations…Afuture that is safe and just for young people, across the world, depends on allegations of genocide being heard for all events, including those that occurred prior to 2002.
Principle of universal jurisdiction
2.14Many submitters and witnesses highlighted the principle of universal jurisdiction, which provides for a State’s jurisdiction over crimes against international law even when the crimes did not occur on that State's territory, and neither the victim/survivor nor the perpetrator is a national of that State.
2.15Dr Monique Cormier, an international law expert based at Monash University Faculty of Law, and Dr Anna Hood, a public international law expert based at the University of Auckland, submitted that the international criminal justice system depends significantly on the will and ability of States to pursue domestic prosecutions of individuals suspected of committing atrocity crimes:
Although the international community has established various ad hoc international and hybrid criminal tribunals as well as the permanent International Criminal Court (‘ICC’) over the last three decades, these tribunals and courts are unable to hold all suspected international criminals to account because of their limited capacity and restricted jurisdiction. Itthus falls to states to ensure that the important goals of the international criminal justice system — including ending impunity for international crimes, ensuring justice for victims and deterring people from perpetrating atrocities — are upheld by pursuing the domestic prosecution of suspected …criminals.
2.16Dr Killean highlighted that more than 150 States provide for some form of universal jurisdiction, with a recent surge in domestic prosecutions (such as Germany, France, Belgium and Sweden pursuing prosecutions against people suspected of perpetrating genocide in Iraq, Syria and Rwanda).
2.17Several submitters to the inquiry—such as APAN, the Australian Western Sahara Association of Victoria, the Australia Tibet Council, the Australian Uyghur Tangritagh Women’s Association and the Genocide Rebellion-West Papua Chapter—described international crimes that have occurred or are occurring overseas, and emphasised how important it is for States like Australia to prosecute these crimes and end the impunity for perpetrators.
2.18From a legal perspective, Professor Williams, Dr Palmer and Dr Hodgson argued that there is a distinction between international crimes committed within Australia and/or by Australians (territoriality and nationality jurisdiction) and those committed outside Australia by non-nationals (principle of universal jurisdiction).
2.19In their view, Australia should take a different approach to international crimes committed outside Australia by non-nationals:
International crimes committed outside Australia by non-Australians generally involve the exercise of universal jurisdiction and present additional risks that warrant a different approach. These factors include the complexity of universal jurisdiction prosecutions, the need for mutual legal assistance and cooperation with other governments, and the risk of negative impacts on Australia’s international relations.
Section 15.4 (Extended geographical jurisdiction—Category D)
2.20Subsection 268.117(1) of the Criminal Code provides that section 15.4 of the Criminal Code applies to the international crimes set out in Subdivisions B–H of Division 268 in Chapter 8 of the Criminal Code.
2.21International criminal law experts Professor Sarah Williams, Dr Emma Palmer, and Dr Natalie Hodgson explained that universal jurisdiction is reflected in section 268.117. However, it is not clear whether a State must exercise its right to rely on universal jurisdiction:
There is debate as to whether a state’s right to rely on universal jurisdiction is discretionary or mandatory. It is possible that – having legislated to facilitate the exercise of universal jurisdiction – Australia is under a duty to exercise that jurisdiction through domestic prosecutions. Certainly, Australia must prosecute any suspects found on its territory or else must extradite the suspect to another state or surrender the suspect to an international criminal court for trial.
2.22Professor Williams and her colleagues specifically noted that the Rome Statute of the International Criminal Court (the Rome Statute) is not based on the principle of universal jurisdiction, but on the principles of territoriality and nationality:
States parties are not required to legislate for specific crimes or bases of jurisdiction; states must only legislate to enable cooperation with the ICC. The principle of complementarity specifies that a case will only be admissible before the ICC where the State is unwilling or unable genuinely to carry out the investigation or prosecution. To avoid ICC prosecutions, many states – including Australia – have passed legislation to ensure that they can prosecute international crimes domestically. Ratification of the Rome Statute and the complementarity principle was the impetus for the inclusion of Division 268 into the Criminal Code in 2002.
Section 16.1 (Attorney-General’s consent required for prosecution etc)
2.23Subsection 16.1(1) of the Criminal Code provides that proceedings for an offence set out in Subdivisions B–H of Division 268 in Chapter 8 of the Criminal Code cannot be commenced without the Attorney-General’s consent if the conduct constituting the alleged offence occurs wholly in a foreign country and at the time of the alleged offence, the person alleged to have committed the offence is not an Australian.
2.24Professor Williams, Dr Palmer and Dr Hodgson submitted that the repeal of section 268.121 of the Criminal Code would not eliminate the need for the Attorney-General’s consent to a prosecution involving alleged offences overseas by non-nationals, as the consent requirement is duplicated in section 16.1 of the Criminal Code which is not affected by the Bill.
2.25Professor Williams and her colleagues argued that the legislative regime applicable to international crimes committed outside Australia by non-nationals should be reformed. Their submission proposed four options for reform, with a preference for the third identified option:
Option 3 is to repeal s 268.121 and remove the requirement for the Attorney‑General’s consent for universal jurisdiction cases, but to replace it with a requirement for the personal consent of the [Commonwealth Director of Public Prosecutions (CDPP)]…Option 3…is the best option for prosecutions of international crimes committed outside Australia by non-Australians. Given the political role performed by the Attorney-General, we believe that decisions to (and not to) prosecute international crimes will have greater legitimacy if made by an independent actor. The CDPP is well-positioned to consider a range of legal and public interest factors in determining if a prosecution should proceed.
2.26In relation to the public interest factors, Professor Williams, Dr Palmer and DrHodgson suggested that the CDPP would need to consider additional factors to recognize the complexity of and broader public interest in such cases, including, for example, what alternate fora might be available for the prosecution of a particular case.
2.27Professor Williams added that, for universal jurisdiction cases, Option 3 recognises that there are factors that continue to require a level of supervision or review:
We've seen that in other countries these types of universal jurisdiction cases can be quite problematic. They are hard to run. It's very difficult to get evidence. It relies on cooperation with other governments, usually, to get our investigators on the ground. We've seen how challenging some of the investigations would be coming out of, for example, the Brereton report and the Office of the Special Investigator there. In our view, there should be some level of review of those decisions to proceed.
2.28Professor Williams, Dr Palmer and Dr Hodgson submitted that the repeal of section 268.121 of the Criminal Code, and an amendment to section 16.1, would have the following outcomes:
The proposed changes will facilitate the prosecution of international crimes within Australian courts even where not committed in Australia or by Australian nationals, consistent with Australia’s obligations under treaty and customary international law and as a supporter of the ICC and international criminal justice. The amendments are consistent with the growing use of universal jurisdiction globally, while enhancing the independence and transparency of the investigation and prosecution of international crimes in Australia.
Territoriality and nationality jurisdiction
2.29Many submitters and witnesses particularly commented on policies and acts of genocide (asdefined in article II of the Convention) that have occurred or are occurring within Australia. They argued that successive Australian governments have committed or been complicit in this genocide, and failed to uphold Australia’s international law obligations to prevent, prosecute and punish the perpetrators.
2.30The Institute for Collaborative Race Research submitted, for example, that Australia has a legacy and is complicit in international crimes both nationally and internationally (such as those taking place in Palestine, West Papua, Sudan and the Congo). Its submission argued that Australia uses its legal system as a weapon to enact and condone colonial violence, one aspect of which would be addressed by the Bill:
The Australian state is founded on the erasure of Indigenous people from this land. Like all settler-colonies, genocide and crimes of atrocity against Indigenous people are at the heart of creating and sustaining the Australian state. Removing the ability of the Attorney-General to block prosecutions for genocide is a small step towards undoing the role of the Australian law in enabling genocide, and allowing it to be used as a tool for accountability for those who commit state violence.
2.31Uncle Robbie Thorpe, Elder with Camp Sovereignty, agreed that genocide of Australia’s First Nations peoples has been occurring since colonisation:
Under article 5, genocide is a crime within the [ICC’s] jurisdiction and defined as killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction and forcibly transferring children of the group to another group. Every one of these acts has been committed against us since the English war of military invasion began…Each of these acts has continued to be committed against us in every generation since the invasion started. The motive was to steal our lands, waters and skies. The intent was to usurp our law. This multigenerational genocide has continued from 2002 until today and will continue tomorrow and into the future.
2.32Similarly, the National Network of Incarcerated & Formerly Incarcerated Women & Girls(the National Network) stated:
From the time of colonisation, First Nations peoples have been subjected to systematic dispossession of lands, the spread of diseases, violent massacres, as well as government policies, such as the theft of children. These actions fit the United Nations definition of genocide…In contemporary Australia, the state continues to engage in practices that contribute to the destruction of First Nations cultures and communities. High rates of child theft, mass-incarceration, and inadequate responses to health, education, and housing needs perpetuate cycles of disadvantage and trauma. The systemic racism embedded in these institutions ensures that First Nations people remain marginalised and disproportionately affected by state policies. The lack of accountability for deaths in custody and the continued failure to fully implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody further highlight Australia's ongoing complicity in genocidal practices.
2.33A number of submitters especially commented on the removal/theft of First Nations children from their families, including as part of the Stolen Generation(s), and the continuing incarceration/deaths in custody of First Nations people as acts of genocide.
2.34Sisters Inside, for example, noted that the Human Rights and Equal Opportunity Commission’s 1997 report titled ‘Bringing them home’ described the Stolen Generations as a genocide. Further:
While the policies that created the Stolen Generations are no longer officially in force, the alarmingly high number of Aboriginal and Torres Strait Islander children in out-of-home care today shows that these policies have effectively been continued through the systemic racism embedded in the ‘child protection’ system...This continuing and increasing removal of Aboriginal and Torres Strait Islander children is occurring through the government agencies of Australian states and territories, which raises a real concern that the Attorney-General may use [the] fiat [in section 268.121] to block attempts under the Criminal Code (Cth) to expose the truth of this situation and seek to hold those responsible for this ongoing genocide accountable.
2.35Professor Thalia Anthony, a criminal law and First Nations law expert based at the University of Technology Sydney, submitted that Australia enables genocide nationally, a feature of which is the mass incarceration and deaths in custody of First Nations people:
…the Australian Government has been aware of the crisis in First Nations deaths in custody as well as necessary mitigation strategies for over three decades when it was put on notice by the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). Yet deaths in custody and incarceration have risen dramatically under its watch. By failing to implement the RCIADIC recommendations, the Australian Government, including the Attorney General, oversaw and created circumstances that lead to the deaths of over 500 First Nations people in custody. Accordingly, it could face liability for genocide by deliberately inflicting conditions of life to bring about the physical destruction of the Aboriginal and Torres Strait Islander [article II(c) of the Convention]. It knowingly enforced measures that would result in their deaths and serious bodily or mental harm [articles II(a) and (b) of the Convention].
2.36As noted earlier (paragraph 2.11–2.12), the 2002 enactment of the offence of genocide (Subdivision 8 of Division 268 of Chapter 8 of the Criminal Code) does not have retrospective application.
2.37Some submitters and witnesses argued that the Australian government designed the legislation specifically to avoid liability for the State’s own genocidal policies and acts. ANTAR submitted, for example:
In electing not to have Division 268 of the [Criminal Code] operate retrospectively meaning that acts of genocide occurring prior to the passing of the [Consequential Amendments Bil] could not be prosecuted within Australia - the Australian State effectively safeguarded itself against being prosecuted for its own historical acts of genocide. In this way - and despite the many formal apologies, admissions of wrongdoing and pledges to move forward with respect for First Nations Peoples - Australia remains a nation fundamentally unable or unwilling to admit that our founding was based on the genocide of Aboriginal and Torres Strait Islander Peoples.
2.38Dr Maria Giannacopoulos, Director of the Centre for Criminology Law and Justice at UNSW Sydney, expressed a similar view, arguing that the Australian legal system is not willing to facilitate a discussion or examination of the dispossession and genocide of First Nations people:
I am addressing a legal regime that is based on colonial violence and one that has benefited from genocide and asking it to consider allowing this to come to light by relinquishing at least one power that keeps this reality covered over…The power that the Attorney General currently holds to consent to prosecuting genocide and other crimes against humanity cases is an example of how the machinery of colonial law is used to deny, delay and foreclose the possibility for justice on the question of genocide. This must change.
2.39Professor Anthony referenced prominent First Nations people who have drawn attention to acts of genocide committed by successive Australian governments, and ANTAR submitted that Australia must recognise and come to terms with this history before genuine reconciliation can occur between First Nations peoples and non-Indigenous Australians:
For governments to refuse to recognise the truth of Australia's genocidal history, it either requires a great deal of wilful blindness, or perhaps an ideological belief that such behaviour is morally defensible when employed in the name of 'nation building' (ie. aimed at reinforcing the sovereignty and/or economic prosperity of the nation). This is a common and arguably essential feature of the settler colonial project.
2.40Sisters Inside submitted that Division 268 of Chapter 8 of the Criminal Code is ‘the only mechanism in the Australian legal system currently available to facilitate truth-telling and accountability about genocide and other atrocity crimes’. For this reason, it supported the repeal of section 268.121 of the Criminal Code (see ‘’), to remove ‘any real or perceived political interference with the ability to pursue accountability under these offences’.
Department’s response
2.41Ms Stephanie Ierino, Assistant Secretary at the Attorney-General’s Department (AGD), affirmed Australia’s commitment to fulfilling its obligations under the Convention:
Australia is extremely committed to fulfilling its obligations under the Genocide Convention. We played an active role in the negotiation of the convention, we were one of the first countries to ratify it, and we have a long history of supporting efforts to promote it...[T]he offences in Division 268 create in Australia the equivalent offences of the Rome Statute…Incorporating those crimes in that way ensures that Australia has the legal capacity to investigate and prosecute those crimes in accordance with the principle of universal jurisdiction...Australia has fully implemented the Rome Statute offences into Australian law so that we are fully equipped to prosecute any of those crimes.
2.42Ms Susan McKeag, Assistant Secretary at the AGD, advised that, where there is evidence that international crimes have occurred:
…we would encourage for that to be referred to the relevant investigating authority…[T]hat would be the Australian Federal Police. And then it would be a matter for the Australian Federal Police to undertake the relevant investigations in the first instance.
Attorney-General’s consent (section 268.121)
2.43Item 1 in Schedule 1 of the Bill would repeal section 268.121, which specifies a pre-requisite and the manner in which proceedings may be brought for an offence under Division 268 of Chapter 8 of the Criminal Code.
2.44Most submitters and witnesses supported this proposal on the grounds that section 268.121 is not consistent with Australia’s international law commitments to prevent and punish international crimes, and provides the Attorney-General, who might be influenced by political considerations, with a broad and unchecked discretion to refuse consent to the prosecution of these crimes.
Requirement to consent to prosecutions
2.45Subsection 268.121(1) provides that proceedings for an offence under Division 268 of Chapter 8 of the Criminal Code cannot commence without the Attorney-General’s written consent.
2.46According to the AGD, since 2002, there have been two attempted prosecutions and one (ongoing) prosecution for offences under Division 268. The Attorney-General consented to the current prosecution, which relates to a section 268.70 war crime(s). The attempted prosecutions were either not referred by the CDPP to the Attorney-General for consent, as they did not comply with subsection 268.121(2), or were referred and did not receive consent on the basis of head of state immunity.
2.47Dr Cormier and Dr Hood submitted that, while there are numerous and complex reasons for Australia’s poor record of prosecution, the consent requirement is a significant hurdle: ‘the only way that international crimes can be prosecuted in Australia is with the Attorney-General’s written consent’.
2.48Similarly, Dr Adanan and Dr Bandiera submitted that cases under universal jurisdiction are not progressing due to ‘the procedural requirement’ in subsection 268.121(1):
Australian practice on universal jurisdiction is notably scarce in the annual reports on universal jurisdiction that have been compiled by the leading [non-government organisation] on the topic, TRIAL [International] and others, since 2015. The inclusion of this procedural requirement in the domestic legal framework limits Australia’s ability to meet its obligations under international law in the prosecution of international crimes.
2.49Dr Edelbi and Dr Dehm agreed that subsection 268.121(1) places Australia at serious risk of violating its obligations under the Rome Statute:
Numerous leading Australian experts of international law have identified the requirement for Attorney-General approval to be a serious flaw in Australia’s implementing legislation. In practice, it has become a nearly insurmountable barrier to facilitating international justice and accountability as required pursuant to Australia’s international legal obligations under the Rome Statute.
2.50Dr Philipp Kastner, Associate Professor Stella Tarrant and Dr Emily Camins, legal experts in international and Australian criminal law based at the Law School, University of Western Australia, noted that other common law (orcomparable) jurisdictions—such as New Zealand, Canada and the United Kingdom—have a legislative requirement similar to subsection 268.121(1).
2.51Professor Williams advised that, over the past 10 to 15 years, the United Kingdom has tried to clarify the role of the Attorney-General in relation to prosecutions for international crimes. Further:
They also entered into agreements between their [Director of Public Prosecutions] and the Attorney-General to try to regulate the discretion a bit. They have also adopted, which is made available to the public, a series of guidelines or guidance indicating what factors will be taken into account by both the prosecuting authorities. I think the Attorney-General will look at them as well when making that decision. They've retained the discretion.
Transparency and accountability
2.52Many submitters and witnesses argued that there are no criteria to guide or govern how the Attorney-General makes decisions under section 268.121 of the Criminal Code. In addition, the Attorney-General does not need to provide reasons for the decision, and section 268.122 does not allow for judicial review of that decision.
2.53The Medical Association for the Prevention of War, for example, presented a common view about the breadth of discretion available under section 268.121, which is not reviewable under section 268.122:
The Attorney-General may choose to proceed or not proceed with a prosecution on any grounds, or on no grounds at all, and does not have to provide any reasons for their decision; this broad discretion is not sufficiently subject to review. This total discretion, veto power, and lack of accountability provides the opportunity for the exercise of bias, or the appearance of bias, and for political considerations, or the appearance of political considerations, to play a role in the Attorney-General’s decision-making.
2.54Dr Cormier and Dr Hood submitted that section 268.121 provides an ‘extremely narrow pathway’ for commencing a prosecution and the consent requirement in subsection (1) is problematic:
…it is too easy for [Attorneys-General] to decline to prosecute those suspected of committing international crimes and they do not have to give any reasons for their decision. What is more, there is nothing to prevent an Attorney‑General’s prosecutorial decisions in this space being influenced by political bias or appearing to be influenced by political bias.
2.55The LR&SJRH submitted that ‘the Attorney-General’s complete discretion contrasts sharply with the way most other matters of federal criminal law are managed’, such as the requirement for the CDPP to have regard to the Prosecution Policy of the Commonwealth (the Prosecution Policy). This policy sets out a two-stage test based on evidence and a public interest factor that must be satisfied before a prosecution can be commenced.
2.56Amnesty International Australia (Amnesty International) noted that the United Nations’ Guidelines on the Role of Prosecutors specifically states that, where prosecutors are vested with discretionary functions, guidelines are to be provided ‘to enhance fairness and consistency of approach in taking decisions in the prosecution process, including institution or waiver of prosecution’.
2.57Dr Edelbi and Dr Dehm submitted, however, that the Attorney-General is not required to consider international law, practice and comity, prosecution and other matters of public interest:
…the Attorney-General exercises a broad discretion in deciding whether to grant consent for the prosecution of international crimes. To uphold principles of impartiality and independence in accordance with the rule of law, and to ensure racial justice by means of an equitable and non-discriminatory application of universal jurisdiction free from any racial, ethnic, political or nationality biases or preferences, this barrier [subsection 268.121(1)] to prosecuting international crimes in Australia should be removed.
Potential legislative changes
2.58Several submitters and witnesses supported amending Division 268 of Chapter 8 in the Criminal Code to improve transparency and accountability in the prosecution of international crimes.
2.59Dr Killean suggested that, if the Bill is not passed, the breadth of the Attorney-General’s discretion and the lack of accountability mechanisms should be addressed, as follows:
1. That greater legislative guidance be given regarding the factors that the Attorney-General should consider when exercising their discretion to give consent to the prosecution of international crimes. Relevant factors could include: i) the nature of the crimes; ii) the nature of the perpetration and whether any official immunities apply to the perpetrator; iii) whether other states are willing and able to prosecute the crimes; iv) access to evidence; v)links between Australia and the crime, the perpetrator or the victims; vi)the interests of victims (discerned through active engagement); vii)Australia’s national security.
2. That the Attorney-General be required to give reasons for their decision.
3. That decisions be subject to judicial review.
2.60As noted earlier (paragraph 2.28), Professor Williams, Dr Palmer and DrHodgson supported repealing subsection 268.121(1) to remove the consent requirement for prosecutions based on territoriality/nationality jurisdiction. However, if this did not occur, then they argued that the decision-maker should be required to record the reasons for his/her decision, which could be subsequently provided to any victim/survivor or other relevant parties. Inaddition, annual statistics should be published in relation to cases where such decisions have been made.
2.61Dr Cormier and Dr Hood expressed their view that the Attorney-General should only have the ability to halt the prosecution of an international crime when head of state immunity issues arise (effectively, repeal section 268.121 but retain section 16.1):
However, if the Australian parliament is unwilling to limit the Attorney-General’s power to this circumstance and desires the Attorney-General to have more power to foreclose international criminal prosecutions, then we recommend that prosecutorial guidelines be developed. These guidelines would set out the criteria to which the Attorney-General would have to have regard when deciding whether to halt the prosecution of international crimes. The guidelines should restrict the power of the Attorney-General to prevent prosecutions in very limited, extreme circumstances. The Attorney-General should also be required to provide written reasons for any decision to quash a prosecution.
Private prosecutions for atrocity crimes
2.62Item 1 of Schedule 1 of the Bill would repeal subsection 268.121(2) which provides that an offence against Division 268 of Chapter 8 of the Criminal Code may only be prosecuted in the name of the Attorney‑General.
2.63Senator Lidia Thorpe, who introduced the Bill, stated in her second reading speech:
…an objective of the Convention is that any person be able to commence a case against genocide. This is prevented through the Attorney-General’s fiat which essentially provides the Attorney-General with the legislated powers to prevent any alleged case of genocide, crimes against humanity or war crimes to proceed.
2.64In 2018, the High Court of Australia (High Court) considered the scope of section 268.121 when a private citizen, Mr Daniel Taylor, attempted to initiate proceedings against Ms Aung San Suu Kyi, the then Minister for the Office of the President and Foreign Minister of the Republic of the Union of Myanmar (Taylor v Attorney-General for the Commonwealth [2019] HCA 30). The High Court held: ‘s 268.121(2) of the Criminal Code (Cth) precludes the private prosecution of an offence against Div 268 of the Criminal Code’.
2.65Mr Taylor submitted that subsection 268.121(2) is constitutionally invalid and should be read down in accordance with section 15A of the Acts Interpretation Act 1901. He argued:
The purported restriction by s.268.121(2) of prosecutions under Div 268 Subdivision B to be commenced only by those authorized to prosecute in the name of the Attorney General, is contrary to the intent of the Genocide Convention and the Rome Statute through which the Parliament obtains its power under the External Affairs power s.51(xxi) of the Constitution, to enact Div 268 Subdivision B.
2.66Mr Taylor submitted that, for several reasons, subsection 268.121(2) is beyond power (ultra vires), including for the reason that it curtails prosecutions for international crimes and does so in a way that violates the fundamentally juridical character of punishment.
2.67Several submitters and witnesses argued there should be a right to private prosecutions for international crimes. The Tomorrow Movement submitted, for example, that all parts of society should be heard on matters of justice:
Throughout history, genocides have been perpetrated by state actors. At the current moment, any alleged case of genocide cannot proceed in Australia without the consent of the Attorney-General, a state actor. This gives the state the power to prevent essentially any case of genocide being levelled against it and compromises the tenets of our justice system.
2.68Professor Williams considered the practical implications of repealing subsection 268.121(2). In her view, if there were no consent requirement and the right of private prosecution is introduced (that is, subsections 268.121(1)–(2) were both repealed):
The risk is that we will get a flood of these prosecutions or potential cases coming into Australia. I think we need to modify or moderate that risk to an extent, which is why we suggest the Commonwealth DPP having that consent requirement.
2.69Mr Salman from the ICV also considered the practical implications of enabling private prosecutions for international crimes. In his view, it would be better for the CDPP to prosecute such actions:
The reality is that to actually bring a private prosecution in Australia is really difficult. I don't know of too many cases where that actually happens...I think in Australia it all is routed through the police and the office of public prosecutions. I think that is the tradition we have here. Given the resources required to be able to do something like this, I think it needs to come through that channel as opposed to private prosecutions.
2.70Professor Williams, Dr Palmer and Dr Hodgson suggested that the Bill presents an opportunity to reconsider whether private prosecutions should be enabled under Division 268. Their submission highlighted that civil society organisations can fulfil an important role in the pursuit of justice:
Civil society organisations play an important role working with affected communities to document international crimes. Victims and witnesses may be more willing to disclose evidence to civil society organisations rather than national authorities in light of past negative experiences in their country of origin. Without a dedicated, permanent, international crimes investigative unit (beyond crimes in Afghanistan and the [Australian Federal Police (AFP)] Special Investigative Command) some civil society organisations have broader access to relevant international legal networks, evidence, and evidence-collection platforms.
2.71Similarly, Dr Cormier and Dr Hood submitted that immigrant and refugee communities may have firsthand experience or access to information about international crimes, which they should be able to prosecute. They cautioned, however, that the Attorney-General should retain the ability to ‘stop proceedings if the person being charged with international crimes is entitled to head of state immunity under international law’.
Investigation of international crimes
2.72Some submitters and witnesses argued that Australia needs a permanent and specialised international crimes investigation unit, as suggested by the ACIJ:
Australia has the legal capacity and stated commitment to investigate and prosecute serious international crimes. There appears, however, to be a gap between Australia's legal capacity to investigate and prosecute these crimes and its structural and institutional ability and willingness to do so...[T]he first barrier to a prosecution is the absence of an investigation into allegations of international crimes. This would significantly improve with the establishment of a specialised permanent international crimes investigations unit.
2.73The ICV noted that some jurisdictions—such as the United Kingdom, the United States, Germany, France, Sweden, Norway and Spain—already have specialised, permanent international crimes investigations units. In comparison, the ACIJ highlighted that Australia’s existing arrangements are limited:
While the [Office of the Special Investigator] has been established to investigate potential war crimes during Australia's engagement in Afghanistan, it is a temporary unit with a limited remit. The absence of a permanent, specialised investigations unit for war crimes and other international crimes means that the AFP may lack the expertise, resources and support services necessary to consistently and appropriately investigate these crimes.
2.74Some submitters specifically noted instances in which the AFP has been approached and/or failed to investigate alleged atrocity crimes. For example, the ACIJ referenced joint actions by it, the International Truth and Justice Project and the Human Rights Law Centre in 2019 seeking to have the AFP investigate retired Sri Lankan General Jagath Jayasuriya. Almost two years later, these organisations received a response:
…the AFP stated that due to an 'administrative oversight', the matter had not been allocated to an investigations team for review…The mishandling of the Jayasuriya matter by the AFP is but one example which highlights some obstacles to effective investigation of international crimes in Australia and emphasises the need for a permanent, specialised unit to investigate these crimes. Had such a unit been in place in 2019, the AFP's 'administrative oversight' and unconscionable delay in reviewing the evidence against Jayasuriya may have been avoided, leading to a real chance of his apprehension while present in Australia.
2.75The ICV submitted that the AFP acknowledges its limitations, which, it argued, would be beneficially resolved with a permanent investigative body:
The role played by the Office of the Special Investigator in relation to the Brereton Report demonstrates the need for, and success of, specialised investigative bodies separate from the AFP when investigating mass atrocity crimes. Theestablishment of a permanent investigative body would support the judiciary in bringing perpetrators to justice and would be able to independently assess the merit of cases without political interference from the executive branch.
2.76Alternately, Dr Edelbi and Dr Dehm submitted that a specially tasked International Crimes Unit could be established within the AFP, with a clear mandate and increased institutional capacity to conduct investigations and bring prosecutions in response to victim/survivor community demands for justice and accountability:
Any prosecutions that are brought pursuant to such credible evidence should not require the additional written consent of the Attorney-General…This creates an undesirable political barrier to pursuing justice and accountability for acts of mass atrocities and risks a perception that Australian law is not only partial but racially biased in its application.
2.77Dr Edelbi and Dr Dehm argued that Australian law and practice must align with best practice procedures, taking into account the approach of other parties to the Rome Statute who have a robust record of investigations and prosecutions for international crimes, and who safeguard the independence of the prosecuting authority.
Independence of the Attorney-General
2.78Many submitters and witnesses expressed concerns about the independence of the Attorney-General, who they suggested could or would be influenced by politics when making decisions under section 268.121 of the Criminal Code.
2.79Amnesty International for example, acknowledged that authority for this decision-making is vested in the Attorney-General as Australia’s first law officer and consistent with common law doctrine, however:
Amnesty International is concerned that such a requirement risks creating the perception that prosecution decisions in cases involving crimes under international law have been made for political reasons.
2.80The LR&SJRH argued that there should not be even ‘an appearance of political bias or motive’ in the making of decisions under section 268.121: ‘this subjects a judicial process to the sort of politicisation against which the independence of prosecutorial functions in Australia specifically seeks to guard’.
2.81Dr Bruce Lindsay, legal practitioner, submitted that international crimes are inherently politicised, making it even more imperative to remove the decision-making from a ‘principal political actor’ to maintain well-established moral-legal standards:
Those crimes are inherently political and politicized because they concern not only public interest issues but because they concern the most egregious criminal conduct by polities and political actors. The prohibition on those crimes sets fundamental standards of the conduct of polities and political actors. From at least 1945 (though probably earlier) those standards have been essential to the international moral-legal order.
2.82The Australian Centre for International Justice (ACIJ) submitted that not every case concerning international crimes would face a political hurdle to prosecute. In its view, however, the consent requirement risks politicising the prosecution of international crimes, thereby undermining the pursuit of justice and the overarching goal to end impunity:
A common response to criticisms of the Attorney-General's consent is that such a requirement does not pose a barrier to investigation or prosecution as a suspected perpetrator can be investigated, arrested, charged, and either remanded in custody or released on bail before the Attorney-General's consent is granted. However, such a response does not sufficiently address the potential for political bias or the appearance of political bias in quashing prosecutions concerning international crimes. Indeed, one need not search far to conjure examples of when such consent could be problematic, including in situations where Australian officials and members of government could themselves be complicit or seek to avoid scrutiny. It is possible that political considerations could intrude upon the decision-making process, making the requirement of consent inappropriate.
2.83Dr Kastner, Professor Tarrant and Dr Camins agreed, adding that commencing proceedings against alleged perpetrators of international crimes can raise political sensitivities:
This is true in the case of both Australian nationals, such as members of government and of the Australian Defence Force, and foreign nationals, since proceedings against the latter may impact Australia’s relationships with other states…[The Attorney-General’s conflict of interest] could negatively impact Australia’s ability to prevent and punish such crimes, which would run counter to Australia’s international obligations and commitment to hold perpetrators of such serious crimes to account.
2.84Some submitters and witnesses cited examples of cases in which, they argued, former and current Attorneys-General have declined to consent to prosecutions based on political considerations. Dr Edelbi and Dr Dehm, for example, cited decisions by former Attorneys-General, the Hon Robert McClelland AO (SriLankan President Mahinda Rajapaksa, 2011) and the Hon Christian Porter (Myanmar leader Aung San Suu Kyi, 2018).
2.85Dr Edelbi and Dr Dehm voiced concerns that decisions under subsection 268.121(1) not to consent to prosecutions for alleged international crimes is leaving victim/survivor communities with little recourse to justice in Australia.
2.86The Australian Uyghur Tangritagh Women’s Association concurred, highlighting the ongoing impacts on the Uyghur community:
Thousands of members of the Australian Uyghur community suffer daily because they do not know the whereabouts or status of our families and friends….[S]tate officials have credibly been accused of committing the crime against humanity of enforced disappearance...That further atrocities, including the use of sexual violence such as gang rape, forced sterilisation and torture, have been widely and credibly attested to by survivors makes not knowing what has happened even worse. That the Australian Government is not living up to its obligations due to political considerations exacerbates the suffering of, and injury to, the Uyghur community... Meanwhile, those implicated in international crimes are able to visit this country without repercussion.
2.87The Australia Tibet Council echoed these concerns and emphasised that the ‘de facto immunity’ creates silence and impunity for ongoing atrocity crimes:
The current situation gives the appearance that major economic partners, like China, will enjoy de facto immunity from prosecution for genocide and other international crimes. The need for the Attorney-General’s consent, essentially the Australian government's consent, appears to bring about the situation quipped by then Minister for External Affairs H. V. ‘Doc’ Evatt during the second reading debate of the Genocide Bill in 1949 that the “little men” are punished and “the big men go free”. In its application, the Attorney-General’s fiat creates silence. The Tibetan experience has shown that silence only emboldens the perpetrators of human rights abuses and genocide to continue their criminal policies with impunity.
2.88The Social Work Policy & Advocacy Action Group at RMIT University submitted that subsection 268.121(1) of the Criminal Code ‘signals to Australian and global communities that human rights protections are not a priority for the government’. In its view, removal of this provision, as proposed in the Bill, would create a more socially just system and improve human rights protection in Australia:
Access to justice must be universal, and it should not be limited by political interference. Our democracy depends on the separation of powers and this amendment sets an important precedent to address the systemic and legal barriers that have impeded a meaningful and accountable implementation of human rights instruments.
2.89The ICV endorsed upholding the rule of law, which it argued is critically undermined by the political interference enabled by subsection 268.121(1):
In a free democratic society, there is no place for executive interference in judicial processes, especially when Australia has voluntarily committed under international law to effectively prosecute and penalise perpetrators. It is regrettable that not only does section 268.121(1) of the Criminal Code Act give the Attorney-General the power to block criminal proceedings, but it establishes no limitations, stipulations or guidelines for the exercise of this power. Mass atrocity criminal cases can be – and have been repeatedly – quashed on dubious grounds or no grounds at all, without being granted any due process or opportunity to be heard.
2.90Dr Lindsay highlighted that, by repealing subsection 268.121(1), the CDPP would become responsible for decision-making in accordance with the Prosecution Policy.
2.91Professor Williams, Dr Palmer and DrHodgson submitted the Prosecution Policy is sufficient to protect against politically motivated or vexatious prosecutions. At the public hearing, Mr Mashni and Mr Salman agreed that the decision-making should be removed from political processes to the CDPP.
Department’s response
2.92The AGD submitted that section 268.121 of the Criminal Code is an appropriate provision:
…prosecutions under Division 268 may raise international law, foreign relations, overseas proceedings and national security issues that it is appropriate for the Attorney-General to consider. Consent to prosecute provisions are a long-standing feature of the Commonwealth criminal justice framework…[Section 268.121] reflects an accepted view across jurisdictions with comparable legal systems that the Attorney-General—as first law officer and a senior member of the executive government—has a role in considering issues such as international law and foreign relations before [Division 268] matters proceed to prosecution.
2.93In this respect, Ms McKeag particularly highlighted the intersection with section 15.4 of the Criminal Code (paragraphs 2.20–2.22):
…any country could initiate a prosecution with respect to any offending in any other jurisdiction. There is no requirement to have a direct nexus back to Australia, so for that reason it is appropriate that consideration be given to the views of other jurisdictions which may have a closer connection to any alleged offending and take into account international law considerations.
2.94The AGD emphasised that ‘consent to prosecute provisions are a long-standing feature of the Commonwealth criminal justice framework’ but ‘are not unique to Division 268 or to the Criminal Code more generally’. The AGD’s submission went on to observe that, across the Commonwealth statute book, there are over 50 different consent to prosecute provisions for offences typically involving international, national security or other public interest factors.
2.95In relation to criteria, the AGD highlighted that ‘section 268.121 does not require the Attorney-General to consider set criteria in determining whether to give consent’. Ms McKeag added that the provision ‘is intentionally not prescriptive’, so as ‘to give the Attorney-General full scope to consider matters that may arise with respect to a particular request for consent’.
Review of Attorneys-General decisions (section 268.122)
2.96Item 2 in Schedule 1 of the Bill would repeal section 268.122 of the Criminal Code, which prevents any review or challenge to a decision by the Attorney‑General to give (or refuse to give) consent to a prosecution other than in the original jurisdiction of the High Court.
2.97Dr Edelbi and Dr Dehm remarked that section 268.122 operates as ‘an unjust barrier to facilitating a victim/survivor-centred approach to accountability for the perpetration of mass atrocities’.
2.98The LR&SJRH submitted that the breadth of section 268.121, combined with section 268.122, renders decisions made by Attorneys-General ‘completely immune to review by a court, both under s 75(v) of the Australian Constitution and under the Administrative Decisions (Judicial Review) Act 1997 (Cth) [the ADJR Act]’.
2.99Dr Cormier and Dr Hood submitted that section 268.122 alone has this effect, which is particularly adverse in relation to the ADJR Act:
The ADJR Act not only provides broader forms of judicial review than s75(v) of the Constitution but also enables individuals to require members of the executive, such as the Attorney-General, to provide reasons for their decisions. A further limitation on the review of the Attorney-General’s decisions in this space is that the decisions are not subject to any form of merits review by, for example, the Administrative Appeals Tribunal or its soon-to-be successor, the Administrative Review Tribunal.
2.100Dr Cormier and Dr Hood argued that, if the Attorney-General retains the power to ‘halt’ prosecutions for international crimes, the exercise of that power should be subject to broad judicial review.
2.101Professor Williams, Dr Palmer and Dr Hodgson agreed that, in that circumstance, the Attorney-General’s decision should be ‘subject to normal judicial review processes’. Professor Williams acknowledged that it would be difficult to review a decision based on ‘public interest’ matters, however, if there were some criteria, guidance and written reasons, there would be some means of review:
…if there are at least some reasons provided and information provided and there's also an identifiable set of factors applied, the review would be effectively looking at whether the process has been followed and whether the Attorney has at least taken into account those factors…It would probably only be if it were clear that process hadn't been applied and those factors hadn't been taken into account, in effect, if it were an entirely irrational type of decision, we would be looking for that to be reviewed.
2.102Professor Williams supported the establishment of a coordination committee across relevant portfolio areas, to provide the CDPP with access to the information necessary to determine whether to prosecute universal jurisdiction cases. Her evidence emphasised the importance of an independent decision-maker:
I think what we thought was that removing the possibility of a political actor making that decision as opposed to having input into the final prosecutorial decision raises a potential perception of political interference or bias. Our other concern was that if the International Criminal Court is looking at decisions from Australian bodies not to prosecute, I think the fact it is made by the independent prosecutor, albeit with relevant input from various departments, may make it look less like we're unable or unwilling [to prosecute] to the International Criminal Court. I think potentially taking that political role out may make our system more robust, if you like, to withstand an International Criminal Court investigation of us. I think it looks better from public perception that it is an independent DPP making that decision subject to internal scrutiny within that department as well.
2.103Mr Ry Atkinson, Strategic Campaigner, International/Crisis for AIA, acknowledged that the Attorney-General, as part of the executive branch, may have access to information that would not be available to anyone assessing an appeal:
But I would simply note that, currently, the form of review allowed is so narrow that any amendment to that to allow for a broader review, as put forward in a few submissions, particularly around the Administrative Decisions (Judicial Review) Act, is a step in the right direction. But I appreciate that there will be some information that the Attorney-General may be privy to that wouldn't be able to be made available.
2.104Sub-item 2(2) in Schedule 1 of the Bill would allow for the retrospective review of decisions made by Attorneys-General under section 268.121 of the Criminal Code. Professor Williams and Dr Cormier did not support this amendment and said that, in future, it would be preferable to have a set of criteria, guidelines, et cetera to be applied prospectively.
Department’s response
2.105The AGD submitted that section 268.122 of the Criminal Code is an appropriate provision that aims to preserve the decisions of Attorneys-General: ‘this is an important safeguard given the intentionally broad discretion that is vested in the Attorney-General within the consent to prosecute process’.
2.106The AGD highlighted that, in general, ‘there is an intentionally high threshold for the creation of retrospective laws or repealing laws that would have the [effect] of altering a previous right or entitlement’. In the case of the Bill, the ‘re-opening’ of decisions would create significant procedural uncertainty.
Committee view
2.107The Bill aims to amend the Criminal Code to uphold the spirit and intention of the Convention, an international treaty to which Australia became a party in 1949, as well as Australia’s role in the prevention and punishment of international crimes.
2.108The committee heard that, while Australia has commitments under international law and international customary law, there are questions about the degree to which those commitments can be and are being fulfilled due to the operation of sections 268.121 and 268.122.
2.109The committee heard that there is significant opposition to providing the Attorney-General with the ability to prevent prosecutions for international crimes in circumstances where there is an unfettered discretion, the Attorney-General might be or is influenced by political considerations, and there are extremely limited pathways for review.
2.110Alternatively, the committee heard that a legislative requirement for consent to prosecutions is a common and long-standing feature of the Commonwealth criminal justice system, which is necessary for the consideration of matters such as international law, foreign relations, appropriate forum, et cetera.
2.111Based on the evidence received, in the committee’s view, the Attorney-General’s consent should be required for prosecutions involving cases of universal jurisdiction, as provided for in section 16.1 of the Criminal Code. This provision enables Australia to uphold its international commitments but also enables the Attorney-General to consider the complex matters that would intrinsically arise in such prosecutions.
2.112Noting the only evidence received by the Committee of Attorneys-General declining consent to prosecute under section 268.121 relate to matters involving universal jurisdiction, it appears the provisions are working as intended.
2.113The committee recommends that the Senate does not pass the Bill.
Senator Nita Green
Chair