Dissenting Report by Senator Lidia Thorpe
1.1The 1948 Genocide Convention calls out genocide as ‘the intentional destruction of a group of human beings, defies universal conscience, inflicts irreparable loss on humanity by depriving it of the cultural and other contributions of the group so destroyed, and is in violent contradiction with the spirit and aims of the United Nations’.
1.2It further states that acts of genocide ‘are crimes against the Law of Nations, and that the fundamental exigencies of civilisation, international order and peace require their prevention and punishment’.
1.3My Private Senator’s Bill seeks to increase prohibition and punishment of the worst of all crimes, to give better effect to the Genocide Convention and the Rome Statute which are domestically criminalised in the Criminal Code Act 1995.
1.4The committee’s response to the evidence provided in the course of this important inquiry into my Bill cannot but be called out as a complete farce, and a reflection of this government’s unwillingness to adhere to its international obligations in the prevention and punishment of the worst of all crimes: genocide, crimes against humanity and war crimes – so-called atrocity crimes – as per the Genocide Convention and the Rome Statute.
1.5As the committee acknowledges in chapter 2 of the majority report, the evidence received in the course of the inquiry overwhelmingly supported this Bill or ‘called for other changes in the way in which international crimes are investigated and prosecuted in Australia’. A notable exception to this support is the Attorney-General’s Department, obviously in a strong conflict of interest in this matter.
1.6Despite this almost unanimous support for the passing of this Bill, the committee recommended the Bill not be passed, and, in addition to this complete intentional ignorance of the evidence presented, it failed to propose any alternative measures through which Australia could strengthen its compliance with its international and moral obligations, although the committee was presented with a range of possible solutions. Therefore, the next section will outline a range of recommendations derived from the excellent advice provided by communities and experts, history keepers in this inquiry, to whom I would like to express my gratitude. I would like to especially express my gratitude and solidarity to all those who contributed to this inquiry who themselves are experiencing a genocide.
1.7This is a national and international shame and should be called out as such. TheAustralian government has no interest whatsoever in any action against genocide, the crime of all crimes, neither in this country nor anywhere else. Thisunwillingness is clearly reverberating in its current stance in foreign affairs and cannot but be called out for its complicity in the genocides on peoples both here and overseas, most starkly observed in the terrors taking place in Palestine at this very moment. Not passing this Bill reflects this country’s bipartisan domestic and international policy of genocide, and must be seen as a further demonstration of willingness of those in government and opposition to be complicit in not just genocide denial, but genocide itself when it is perpetrated against racialised peoples.
1.8One of the reasons for this lack of willingness is most obviously this country’s history of and ongoing impacts of colonisation and the genocide on First Peoples here, which continues to this day. It is no coincidence that Attorney-General fiats exist primarily in settler colonies, such as New Zealand, Canada and the United States, as well as in the United Kingdom as the colonising country. The fiat is a deliberate legal protection for these governments from being prosecuted for genocidal actions towards its First Peoples. The Attorney-General’s fiat is not just absurd in that ‘justice’ for genocide must be sought from the perpetrators themselves, but a continuation of oppressive and genocidal actions by the State. As Uncle Robbie Thorpe put it:
You are complicit. That is why we need to have this at an international level. We can't have an in-house arrangement here in terms of these genocide laws. That is the whole idea why it is international, and universal jurisdiction should apply.[1]
1.9The committee’s recommendation to not pass my Private Senator’s Bill needs to be seen in this context.
1.10As per Article 25(3)(c) of the Rome Statute, which establishes individual criminal responsibility for anyone who facilitates a genocide by aiding or abetting its commission, it is urgent and necessary for members of this Parliament to cease their own impunity towards and complicity in genocide.
1.11The committee also received a vast amount of evidence by many submitters, including First Peoples, which spoke to genocide taking place in this very country, as well as many others, including Palestine, West Papua, Tibet, Xinxiang, Sri Lanka and Myanmar and others.
1.12This is important truth-telling and the majority report includes some of these voices, but by far not enough. While in the scope of this dissenting report I cannot possibly do these communities justice, I attempt to platform the main concerns raised and wish to thank everyone for their important, heartfelt and often difficult contribution. Our communities have survived despite the attempt to annihilate us, and the fight continues loud and strong every day. Without people speaking up and telling the truth, we will never see change.
1.13There was overwhelming and almost unanimous evidence (with the exception of none less than the Attorney-General’s Department itself) received in support of the Bill and the impact it would have on adhering to our international law obligations and preventing and punishing the worst of all crimes, given so-called Australia’s abysmal record of international crime prosecution and decision-making out of line with considerations of morality and humanity:
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 [International Criminal Court, the ICC] and international criminal justice. Theamendments 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.[2]
1.14Interestingly, it was indeed submitted that:
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.[3]
1.15This means that, as this country has a duty to prosecute domestic suspected cases of atrocity crimes, there should be no question about providing consent for such cases to proceed in the first place. This further undermines the committee view as it can be argued that any refusal to prosecute atrocity cases is contrary to the principles of international law itself.
1.16The inability for people to pursue domestic atrocity cases without the Attorney-General’s consent is in itself a deterring factor and will partially explain why no prosecutions under section 268.121 have been sought:
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.[4]
1.17In conclusion, the Attorney-General’s fiat is at best an unnecessary bureaucratic barrier, and at worst (and in reality) a dangerous obstruction to justice, and an enabler of atrocity crimes.
1.18The passing of this Bill would be an important step to strengthen adherence to international law and fulfil our obligations within the international community and as humans, and address the systemic and legal barriers which create silence and impunity for ongoing atrocity crimes.
Recommendation 1
1.19That the Senate pass the Bill.
1.20The committee view stated in this majority report does by no means reflect my view or that of the many submitters and witnesses to this inquiry. Thecommittee stated that it is appropriate for the Attorney-General’s consent to be required for matters of universal jurisdiction, as provided for in section 16.1 of the Criminal Code.
1.21However, the Bill being inquired into proposes no changes to this section of the Criminal Code, and the committee view thereby becomes irrelevant to the Bill in question.
1.22Contrary to the committee view, however:
The law on the crime of genocide has jus cogens status — a law from which no derogation is permitted even by states not party to the Convention — and erga omnes status, a universal right that is owed to all and that obligates third-party states to make legal claims against any state that violates it.[5]
1.23Universal jurisdiction is a fundamental aspect of international law and the basis for a well-functioning system of international justice:
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.[6]
1.24The failure to progress any such prosecutions since the enactment of the Rome Statute in this country in 2002 is a clear indication that the system is not working as it should to fulfil our international obligations as outlined above.
1.25Given the high prevalence of genocides currently occurring worldwide and the urgent need to stop these, punish perpetrators and prevent further acts of genocide, it is therefore essential to remove the Attorney-General’s fiat and potential political interference and resulting barriers to prosecution of international crimes even from cases of universal jurisdiction.
Recommendation 2
1.26That section 16.1 of the Criminal Code be revoked to remove the Attorney-General’s fiat from cases of universal jurisdiction.
1.27Investigative responsibility for international crimes currently falls with the Australian Federal Police (AFP), but it is neither well enough equipped, nor resourced to or interested in engaging in such investigations, which therefore simply don’t occur. Far from initiating investigations itself, the AFP has even been approached in some instances to investigate alleged atrocity crimes and failed to do so at all.
1.28This lack of prioritising and resourcing clearly demonstrates the absence of so-called Australia’s commitment to the responsibilities and values outlined in the Rome Statute.
1.29In the course of the inquiry, it was noted that other jurisdictions have specialised, permanent international crimes investigation units which have facilitated the effective prosecution of atrocity crimes:
The establishment of a permanent investigative body would support the judiciary in bringing perpetrators to justice and would be able to independently assess cases without political interference from the executive branch.[7]
Recommendation 3
1.30That an independent, specialised international crimes investigation unit be established and adequately resourced.
1.31If the Senate does not pass the Bill and persists with the Attorney-General’s fiat, there is a need to increase accountability and transparency mechanisms and to adhere to the principles of balance of power.
1.32It was well noted that in so-called Australia, through the Attorney-General’s fiat, there is a clear possibility for perceived or real conflict of interest in the decision-making around prosecution of atrocity and other international crimes:
Those crimes are inherently political and politicized and because they concern not only public interest issues but because they concern the most egregious of criminal conduct by polities and political actors.[8]
1.33It was noted that the Attorney-General’s fiat:
…creates an undesirable political barrier to pursuing justice and accountability for mass acts of mass atrocities and risks a perception that Australian law is not only partial but racially biased in its application.[9]
1.34Attorney-General’s decisions enjoy complete immunity of review by a court or scrutiny as to the validity of the decision, with no requirement for any specific set of factors to be taken into account under the Attorney-General’s fiat, nor any reporting requirement around the deciding factors.
1.35This stands in contrast to both domestic and international practices. Domestically, the Commonwealth Director of Public Prosecutions (CDPP) needs to have regard to the Prosecution Policy of the Commonwealth, and internationally, the United Nations’ Guidelines on the Role of Prosecutors specifically state the need for the establishment of prosecution guidelines to increase fairness, consistency and independence in decision-making.
1.36The development of legislative guidelines for the Attorney-General’s discretion under both Division 268 and section 16.1 of the Criminal Code would improve accountability of such decisions in line with international and moral obligations, and reduce potential political interference in the decision-making process. Accountability would be further strengthened if such decisions needed to be made public, including the reasons for them.
Recommendation 4
1.37That, if the Senate does not pass this Bill:
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.[10]
1.39Separation of power is an essential aspect of a well-functioning democracy, and the judicial branch plays an important role in balancing out the power of the executive and legislative branches. The inability to review decisions, particularly as important as those concerning the most egregious of all crimes, is in complete breach of democratic standards and effectively provides a legal immunity to Attorneys-General. This risks the complicity, enabling and perpetrating of the worst of all crimes and is by no means justifiable.
Recommendation 5
1.40That, if the Senate does not pass this Bill, the decision of the Attorney-General under section 268.122 to give or refuse consent to institute proceedings for an offence under Division 268 can be subject to review or appeal, particularly under the Administrative Decisions (Judicial Review) Act 1977 (Cth).
1.41Similarly, to increase transparency and accountability of our international and moral obligations, decisions made by the CDPP, which currently has discretion not to refer a matter to the Attorney-General, should be reviewable in line with safeguarding the community’s rights and maintaining well-functioning separation of powers.
Recommendation 6
1.42When the CDPP exercise its discretion not to refer a case of genocide or crimes against humanity to the Attorney-General, that this decision be made publicly available, and be subject to judicial review.
1.43During the public hearing, the committee heard from numerous submitters, aswell as from Camp Sovereignty and Remedy Australia, about the genocidal practices of previous and current Australian governments, which have received all but no political attention and despite the mounting evidence are intentionally ignored so as to protect the colonial government/s.
1.44The Genocide Convention and Rome Statute mandate the investigation and prevention of genocidal practices, while the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Articles 8 and 28 call for accountability and measures to prevent cultural destruction, and the International Covenant on Civil and Political Rights (ICCPR) underscores the right to truth and accountability.
1.45An inquiry into so-called Australia’s genocidal practices, with binding recommendations, would ensure this country’s compliance with human rights obligations and Indigenous self-determination principles.
Recommendation 7
1.46That there be established a National Inquiry or Royal Commission into genocidal practices in Australia against its First Peoples, assessing both historical and contemporary practices and their impacts.
1.47It could investigate both past policies and present issues, such as child removals, mass incarceration, and forced assimilation policies, addressing structural racism in policy and practice.
Recommendation 8
1.48That the Australian government acknowledges the historical and ongoing genocide of this country’s First Peoples.
1.49So-called Australia has obligations under the Genocide Convention and Article 40 of the UNDRIP to ensure First Nations communities are provided with their own mechanisms for justice that reflect their unique cultural and historical contexts. Theprinciple of ‘complementarity’ in the Rome Statute allows for domestic courts to address crimes of genocide, while the UN Basic Principles on the Right to a Remedy and Reparation (Van Boven Principles) highlight the need for national accountability structures to provide redress for gross human rights abuses.
1.50In line with principles of self-determination and sovereignty, a court could be established to address genocidal practices, systemic discrimination and oppression, including colonial violence and historical injustices against First Nations communities. This court could be accountable directly to First Nations communities, and revolve around community-based and restorative justice which align with Article 40 of the UNDRIP, which emphasizes Indigenous peoples’ right to fair treatment within judicial and administrative processes. Italso supports Articles 8 and 28 of the UNDRIP, which speak to the right to redress for dispossession, ensuring that this legal avenue is directly accountable to First Nations communities.
1.51Such a court could act as a platform for truth-telling and restorative justice, and ensure that perpetrators of state-backed violence are held accountable. Thisproposition aligns with Canada’s Missing and Murdered Indigenous Women and Girls report, which recommended judicial mechanisms tailored to the specific historical and social contexts of Indigenous peoples.
Recommendation 9
1.52That there be established an Autonomous First Nations Genocide Court that operates independently of the existing judicial system and is specifically empowered to address crimes of genocide, systemic discrimination, and land dispossession, and is endowed with both prosecutorial and restorative powers.
1.53The Van Boven Principles affirms the right to reparations for gross human rights violations, while Article 28 of the UNDRIP provides a foundation for land restitution and the right of First Peoples to redress.
1.54Modelled on Canada’s Missing and Murdered Indigenous Women and Girls’ call for reparations and the Luxembourg Agreement framework post-Holocaust, acommunity-driven reparations program would further affirm First Nations sovereignty and self-determination under international law and ensure any reparations are not only compensatory but also transformative.
Recommendation 10
1.55That there be established a reparations program that is designed, implemented, and controlled by First Nations communities to address the lasting impacts of colonisation, dispossession, and family separation policies. This program should include financial compensation, cultural restoration, support for community-driven education and healthcare initiatives, and extensive land restitution measures, in addition to any other measures identified by the community.
1.56Community submissions to the inquiry shared common themes regarding acts of genocide perpetrated against First Peoples by the governments of so-called Australia.
1.57In the first instance, submissions highlighted the key finding of the 1997 Bringing Them Home report which asserted that the Stolen Generations were an act of genocide under the 1948 Convention.
1.58This includes the forced transfer of children from one group to another, causing mental and bodily harm to a group, and preventing births within a group. Remedy Australia summarised:
As for the state removing children, the Stolen Generations inquiry found that the ‘ultimate purpose’ of the practice was to control the reproduction of Aboriginal and Torres Strait Islander peoples – defined by [Raphael] Lemkin as biological genocide.[11]
1.59Submissions noted that this must be accounted for by the government of so-called Australia, and the links between these very recent historical acts and the current day implications of these acts be addressed.
1.60Submissions also noted the direct causal link between this grievous history and contemporary acts of genocide, including the ongoing and ever-increasing removal of First Nations children via the ‘child protection’ system, hyper-incarceration of First Nations adults and young people, and the ongoing theft of land and resources.
1.61As in the Productivity Commission’s most recent ‘Closing the Gap’ update – and other related reports, such as that produced by the Yoorrook Justice Commission 2023 – the removal of First Nations children and the high incarceration rates are interrelated and at the highest rates ever.
1.62All of the above have deeper genocidal implications concerning access to, and the practice of, culture and continuing cultural responsibilities of sovereign First Peoples along with ongoing mental and bodily harms manifesting in First Nations deaths in custody:
By systematically removing Aboriginal children from their families, the state continues to undermine the social and cultural fabric of First Nations communities. This practice, often justified under the guise of 'protection' and 'welfare', echoes the historical policies of assimilation and cultural eradication. These actions are not merely isolated incidents but are part of a broader, ongoing strategy to disrupt and dismantle Aboriginal societies. Thetheft of children from their families serves to weaken the bonds that sustain Indigenous identity and heritage, effectively seeking to erase cultural knowledge and traditions over generations.[12]
The ongoing practice of disproportionately removing Aboriginal children from their families and placing them into residential care and out-of-home care (OoHC) constitutes a contemporary form of genocide. This systematic removal, often without proper justification or consideration for cultural connections, perpetuates intergenerational trauma and disrupts the continuity of Aboriginal cultures and communities.[13]
1.63In particular, submissions noted that both past and present-day genocidal policies have been targeted at First Nations women and mothers.
1.64Submissions pointed to the increasing rates of First Nations women in prison, many of whom are mothers, and are simply on remand:
This disproportionate representation of Aboriginal and Torres Strait Islander children in the child protection system and the enduring legacy of the Stolen Generations is closely intertwined with the criminalisation of Aboriginal and Torres Strait Islander women. Aboriginal and Torres Strait Islander women make up one-third of the population of women’s prisons, being imprisoned at 20 times the rate of non-Indigenous women. With 80 per cent of women in prison estimated to be mothers, and many of these the primary or sole caregivers, forced separation due to imprisonment often triggers the removal of children from their families.[14]
1.65This targeting of First Nations women has led to the disproportionate number of First Nations children and young people in ‘child protection’ and feeds the pipeline of youth detention and ultimately, adult incarceration where the risk of death in custody is a daily reality.
1.66A plethora of reports have been tabled in and presented to the Parliament over the decades, including the expansive 1991 Royal Commission into Aboriginal Deaths in Custody Report, yet recommendations on how to address and redress hyper-incarceration have been continually ignored. This demonstrates wilful complicity by both state and federal governments and representative individuals in these ongoing crimes of genocide:
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. These actions not only reflect a continuity of colonial violence but also a deliberate strategy to undermine the survival and sovereignty of First Nations peoples in this country.[15]
1.67Community submissions were also concerned with the lack of state accountability for these ongoing crimes along with access to justice, as per the Attorney-General’s fiat.
1.68Genocides are often perpetrated by the state and individual state actors; as such, to continue to retain the fiat provides legislative protection for the state itself to avoid scrutiny and accountability.
1.69This includes within the continent now known as ‘Australia’ where government has both in an historical and contemporary context enacted genocidal legislation, including (but not limited to) the Stolen Generations and ‘child protection’, hyper-incarceration and forced removal of First Peoples from their land.
1.70The in-built legislative protection of the Attorneys-General also prevents access to justice for the very communities who require justiciability and accountability to prevent further genocidal acts being committed against them.
1.71However, it must also be noted the absurdity of a system in which ‘justice’ for genocide must be sought from the perpetrators in the first instance.
1.72As such, the removal of the fiat would provide a small measure of independence from government for accountability to be sought on this matter.
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 their fiat 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.[16]
1.73The fiat also prevents accountability and access to justice not just for First Peoples (as outlined above) but also for other communities seeking justice for genocidal acts perpetuated against them in other jurisdictions.
1.74Noting that the 2002 amendment of the Criminal Code Act1995 (Cth) enshrined the powers of the Rome Statute and the ICC within domestic legislation, this includes the power (and legal obligation) to arrest and charge individuals against whom strong evidence of genocide can be brought.
1.75A number of instances have occurred whereby Australian citizens have attempted to petition the government to act upon this international obligation when suspected perpetrators have visited Australia.
1.76This includes a request for consent for the prosecution of former Israeli Prime Minister Ehud Olmert in 2009, Sri Lankan President, Mahinda Rajapaksa in 2011, Myanmar (Burma) leader Aung San Suu Kyi in 2017 and Sri Lankan General Jagath Jayasuriya in 2019.
1.77None of these petitions were successful, with head of state immunity and international concerns cited to excuse government inaction and denial of requests by consecutive Attorneys-General:
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.[17]
1.78In the current context, numerous submissions noted the Australian government’s failure to condemn and act upon the ongoing genocide committed by Israel in Gaza (and Palestine more broadly).
1.79Instead, once again, political and economic self-interest – including the manufacture and sale of weapons between Australia and Israel – has trumped basic human rights and the obligations of Australia to prevent Genocide.
The need to remove political interference from the prosecution of these crimes is not just a theoretical concern but a practical necessity, demonstrated by several ongoing global conflicts and atrocities. Whether dealing with historical injustices like those committed against First Nations Australians or addressing contemporary crises in Gaza, Afghanistan, Myanmar or Xinjiang, Australia must ensure that its legal system facilitates, rather than hinders, access to justice.[18]
1.80Many submissions to this inquiry noted ongoing multiple genocides and crimes against humanity that continue to occur across the globe, including Palestine, Tibet, Xinxiang, Sri Lanka and Myanmar:
Similarly, the Chinese government’s treatment of Uyghurs in Xinjiang has been widely condemned as genocide and crimes against humanity. Investigations by international organisations, including the United Nations, have documented severe human rights abuses against Uyghurs and other ethnic minorities, including mass detentions in “re-education camps,” forced labour, torture, and sterilisations. These acts are part of a broader policy of eradicating Uyghur culture and identity. The international community, including Australia, has a moral and legal obligation to address these atrocities. The removal of barriers to prosecuting such crimes domestically would position Australia as a leader in the global fight against impunity for mass atrocity crimes.[19]
1.81It must be noted that in each of these instances – like within Australia – genocide and crimes against humanity are being perpetrated by the state against its own citizens.
1.82Concerns were raised not only for people within those jurisdictions who are suffering at the hands of the state, but also for family members and loved ones residing in Australia, who have sought safety and protection but are yet to find justice.
1.83Submissions noted Australia’s legal obligations to uphold the principles of justice but failure to do so:
The need to remove political interference from the prosecution of these crimes is not just a theoretical concern but a practical necessity, demonstrated by several ongoing global conflicts and atrocities. Whether dealing with historical injustices like those committed against First Nations Australians or addressing contemporary crises in Gaza, Afghanistan, Myanmar or Xinjiang, Australia must ensure that its legal system facilitates, rather than hinders, access to justice.[20]
1.84A number of instances were reiterated throughout the submissions whereby the Attorney-General’s fiat has been utilised to block access to justice, in particular, with regard to utilising the power to arrest and charge likely perpetrators of war crimes.
1.85In 2009, Palestinian rights group Australians for Palestine issued a request for consent for the prosecution of former Israeli Prime Minister Olmert, who was visiting at the time.
1.86The Australian Centre for International Justice stated in its submission to the inquiry how then Attorney-General Robert McClelland denied the request, citing matters of international state sovereignty and the difficulties of pursuing such a case in an overseas jurisdiction.
1.87Then, in 2011, Arunchalam Jegastheeswaran, an Australian citizen of Tamil background, sought the Attorney-General's consent to the prosecution of then Sri Lankan President Rajapaksa, who was due to visit Australia.
1.88The Attorney-General denied the request, stating that President Rajapaksa was protected under 'head of state immunity', another controversial aspect of international jurisprudence, given it is often heads of state who commit atrocity crimes.
1.89Head of state protection was also offered to former Myanmar (Burma) leader Ms Suu Kyi, who was in government when the 2017 genocide against the Rohingya was committed.
1.90Due to be in Australia for an ASEAN conference, the Australian Rohingya community sought a prosecution which was denied by then Attorney-General Christian Porter, despite Ms Suu Kyi's immunity as a head of state (she was not the president) being in question.
1.91And in 2019, retired Sri Lankan General Jagath Jayasuriya visited Australia. Despite concerted efforts to raise evidence to prosecute him for war crimes, delays within the AFP meant the case never reached the point of Attorney-General consent.
1.92Each of these instances represents an occasion whereby access to justice for victims of genocide and crimes against humanity has been blocked by the Australian government.
1.93Access to justice in these instances has also been compounded by the legislative provision where no reason or rationale need to be provided by the Attorneys-General.
1.94Further, submissions noted so-called Australia’s refusal to take a clear stand against genocide and crimes against humanity across the globe.
Australia’s lack of political will to take any of the suite of measures prescribed by international law during this time of genocide, compels us to comment not only on the issue that is of most immediate concern to this inquiry – the removal of political barriers to the prosecution of genocide under the Criminal Code – but also on the broader measures Australia can adopt to realise its legal and moral commitments to prevent atrocity crimes, in Palestine and wherever else they may be occurring.[21]
1.95The Australian government has largely fallen silent on the current genocide in Palestine, which demonstrates a trend of silence with respect to crimes against humanity and human rights abuses in jurisdictions such as Myanmar, Sri Lanka, Tibet and Xinxiang.
1.96In fact, with respect to Palestine, instead of denouncing what the international legal community has described as war crimes and genocide, the Australian government continues to manufacture weapons and components that are used by Israel to perpetuate genocide.
1.97Further, submissions noted that Australian citizens may be involved in the perpetuation of genocide and war crimes in Gaza, as the Israeli Defence Force has mobilised reservists from around the world, reportedly including from Australia.
Australia must fully take on the role we have accepted under international law to punish and prevent these crimes, and finally implement our espoused principles without unnecessary hurdles. Not only does Australia need to be prepared to fully implement the principle of universal jurisdiction, but it is plausible that Australia may need to try its own citizens in relation to the atrocities being committed in Gaza.[22]
1.98Many submissions noted the repeated failures to uphold the principles and obligations of international law not only in Gaza, but in standing up for, and speaking out against, atrocity crimes across the globe.
The Australian Government's current stance on Israel’s genocide in Gaza, marked by reluctance, political unwillingness and selective enforcement of international law, starkly contrasts with its professed commitment to human rights and the rule of law. This inconsistency not only erodes trust domestically but also undermines Australia's standing on the global stage, and certainly contributes to the growing impunity Israel enjoys to continue committing atrocities against the Palestinian people.[23]
1.99Despite being a signatory to the Genocide Convention and the Rome Statute, aswell as a raft of other international human rights treaties, the Australian government continues to ignore the responsibilities this places on it in upholding our shared international human rights framework. Yet without any meaningful action, this apparent ‘commitment’ is not worth the paper it is written on.
1.100So-called Australia has not only failed in its international obligations, but chooses to do so on a continuing basis. The legal barriers to the prosecution of genocide, crimes against humanity and war crimes are intentional and signify an acceptance of these crimes, an enabling role and indeed complicity in them.
1.101This is most prominently shown in the genocide of the First Peoples of this land. Genocide has been perpetrated from the time of invasion, through massacres, forced displacement, land theft, the destruction of cultural heritage, the Stolen Generations and so much more. It continues to this very day. It is not as starkly obvious to the outside observer as the genocide in Gaza, but it takes place in sophisticated, silent and effective ways.
1.102So-called Australia is not just failing as an international partner, or current day democracy, but on the very basis of morality and humanity itself.
1.103But we’re not giving up to seek justice here and everywhere. In the words of Uncle Robbie Thorpe:
It's not just urgent for Aboriginal people. Australia is complicit with other genocides around the world, so it is urgent on many fronts. The noose is tight. You may have got away with it for the last 76 years, but things have changed. We're not going away. We're going to be here until we get justice for our ancestors, for our esteemed elders, our children, our children's children and our land. You had better deal with it.[24]
Senator Lidia Thorpe
Independent Senator for Victoria
Footnotes
[1]Uncle Robert Thorpe, Camp Sovereignty, Committee Hansard, 30 July 2024, p. 13.
[2]Professor Sarah Williams, Dr Emma Palmer and Dr Natalie Hodgson, Submission 9, p. 1.
[3]Ibid, p. 2.
[4]Dr Souheir Edelbi and Dr Sara Dehm, Submission 27, p. 8.
[5]Ms Eleanor Gilbert, Submission 58, p. 3.
[6]Professor Sarah Williams, Dr Emma Palmer and Dr Natalie Hodgson, Submission 9, p. 2.
[7]Islamic Council of Victoria, Submission 2, pp. 11–12.
[8]Dr Bruce Lindsay, Submission 40, p. 3.
[9]Dr Souheir Edelbi and Dr Sara Dehm, Submission 27, p. 18.
[10]Australia Tibet Council, Submission 44, p. 7.
[11]Remedy Australia, Submission 4, p. 8.
[12]National Network of Incarcerated and Formerly Incarcerated Women and Girls, Submission 22, p.3.
[13]Ms Laura-Jane Phoenix Singh, Submission 16, p. 1.
[14]Sisters Inside, Submission 12, p. 2.
[15]National Network of Incarcerated and Formerly Incarcerated Women and Girls, Submission 22, p.2.
[16]Sisters Inside, Submission 12, p. 3.
[17]Institute for Collaborative Race Research, Submission 31, p. 1.
[18]Islamic Council of Victoria, Submission 2, p. 10.
[19]Ibid.
[20]Ibid.
[21]Australia Palestine Advocacy Network, Submission 20, p. 3.
[22]Islamic Council of Victoria, Submission 2, p. 9.
[23]Australia Palestine Advocacy Network, Submission 20, p. 15.
[24]Uncle Robert Thorpe, Camp Sovereignty, Committee Hansard, 30 July 2024, p. 13.
An inquiry into the Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024.
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