Senator Lidia Thorpe has introduced a bill into Federal Senate which seeks to remove the Attorney-General's power to prevent prosecutions of genocide and related atrocity crimes in Australia.
The bill would amend the Criminal Code Act 1995 (Cth), which is applicable Australia-wide, by removing the requirement for the Federal Attorney-General to consent for proceedings to commence.
The offences are specifically genocide, crimes against humanity and international war crimes.
In this context, it is important to note that the Attorney-General is a Member of Parliament who is appointed by the Governor-General on the advice of the Prime Minister. There is also no right to appeal the Attorney-General's decision.
Thorpe explained that: "no politician should get to say who can and can't be held accountable in our legal system, particularly in relation to the most heinous crimes like genocide,"
"This bill helps get political interference out of our legal system and gives victims and survivors of these most heinous crimes a better chance at justice."
In 2018, then Attorney-General Christian Porter prevented Aung San Suu Kyi's prosecution for crimes against humanity in relation to the Rohinga Genocide in Myanmar, despite calls from the Australian Rohinga community.
Furthermore, in 2011, then Attorney-General Robert McClelland blocked proceedings for war crimes against then Sri Lankan president, Mahinda Rajapaksa. It was alleged that Sri Lankan forces bombed hospitals and ambulances during the three-decades-long civil war which ended in 2009.
Both cases originated as private applications seeking prosecution of the relevant individuals and relied on the concept of 'universal jurisdiction'.
Universal jurisdiction refers to the power of a court to rule on a particular offence, which is established without reference to the place in which it was committed, the nationality of the suspect or the victim, or any other recognized linking point between the crime and the prosecuting state.
Offences which carry 'universal jurisdiction' are those considered the most serious criminal offences under international law, namely genocide, war crimes, and crimes against humanity.
Australia formally recognises the principle of universal jurisdiction, however, as outlined, the Attorney-General must consent for any prosecutions to proceed.
Thorpe explained: "this bill will empower people to seek truth and justice. Whether you're a Palestinian Australian who has seen your family murdered in Gaza, or a Blak mother wanting to hold this government to account for the ongoing removal of First Nations children, my bill will give people in this country a better chance for justice."
An inquiry into the bill has commenced, with a report to be returned by 13 November 2024. The deadline for submissions in relation to it is 5 July 2024.
Australia has obligations to investigate and prosecute genocide, crimes against humanity and war crimes under international law.
This includes obligations under the Convention on the Prevention and Punishment of the Crime of Genocide and the Geneva Conventions.
Crimes Against Humanity, Genocide and War Crimes
In 2002, Australia enshrined the convention in domestic law when it criminalised genocide, crimes against humanity and war crimes under the Criminal Code Act 1995 (Cth).
What is genocide? Genocide is defined as acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.
These acts are killing, causing serious bodily or mental harm, imposing measures to prevent births, forcibly transferring children of the group and deliberately inflicting conditions of life which are calculated to bring about the group's physical destruction in whole or in part.
The maximum penalty applicable is life imprisonment, as outlined in sections 268.3 – 268.7.
What are crimes against humanity? Crimes against humanity require a context of a widespread or systematic attack directed against any civilian population. The acts include murder, extermination, enslavement, deportation or forcible transfer of population, torture, rape, sexual slavery, enforced sterilisation and forced pregnancy.
The maximum penalty applicable differs based on the act, ranging from 17 years imprisonment to 25 years imprisonment or life.
What are war crimes? War crimes occur in the context of armed conflict or international armed conflict. Acts criminalised include murder, wilful killing, torture, taking hostages, biological experiments, attacking those engaged in humanitarian assistance, sexual slavery, starvation as a method of warfare, and using, conscripting, or enlisting children, and attacking civilians or civilian objects.
There is significant overlap between war crimes and crimes against humanity, however, crimes against humanity may occur even in the absence of armed conflict.
A significant range of maximum penalties apply to war crimes, dependant on the act, ranging from life imprisonment to 10 years imprisonment.
The Act provides that proceedings for an offence under this Division must not be commenced without the Attorney-General's written consent. Furthermore, an offence against this Division may only be prosecuted in the name of the Attorney-General.
It is also specified that an Attorney-General's decision in relation to consent is to be considered 'final' and must not be challenged, appealed against, reviewed, quashed, or called in question.
