Senate Recommends Rejecting Removal of Requirement for AG’s Consent to Prosecute Genocide

Despite the Howard government enacting the international offences of genocide, war crimes and crimes against humanity under division 268 of the Criminal Code Act 1995 (Cth) in 2002, no one has been able to prosecute them, as the Coalition included a rule that prosecutions must be approved by the attorney general, which ensures charges cannot be brought without approval by the nation’s chief lawmaker.

Since the Gaza genocide broke out 13 months ago, the prospect of launching a genocide case against an Israeli official has been widely discussed, and Senator Lidia Thorpe introduced the Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024 in February 2024, which seeks to remove a block, known as the attorney general’s fiat, which would then make the laws accessible.

After being introduced, the bill was sent to the Senate Standing Committee on Legal and Constitutional Affairs and its report was tabled last Wednesday. The inquiry made one sole recommendation and that was that “the senate does not pass the bill”, and it adds that this is despite the overwhelming support of submissions to and witnesses at the inquiry expressed for it.

The Gunnai, Gunditjmara and Djab Wurrung Senator outlined in a media release that same day that “the committee’s response to the evidence provided to this important inquiry is a complete farce, and a reflection of this government’s unwillingness to adhere to its international obligations to prevent and punish the worst of all crimes.”

Blocking genocide cases

Thorpe introduced the changes to the federal law in February 2024 at a point in time when many in Australia were questioning whether it was possible to launch a genocide case in relation to Gaza and then discovering that these laws are subject to the AG block, which too applies to any attempts to launch cases in relation to genocide upon the First Peoples of this continent.

“The committee has failed to put forward any constructive recommendations to address Australia’s failure to investigate and punish genocide and international crimes more widely,” Senator Thorpe said in a 13 November statement. “And they have dismissed serious concerns expressed by the many community members and expert witnesses who made submissions to this important inquiry.”

The issue with the AG fiat is it prevents prosecutions and neglects our international obligations. Morrison government AG Christian Porter applied the fiat in 2018 to block a genocide prosecution against Myanmar state counsellor Aung San Suu Kyi, and Gillard government AG Robert McCelland initially exercised the fiat to block a genocide case against Sri Lankan PM Mahinda Rajapaksa in 2011.

Australia has legislated the laws that make it almost impossible to run a genocide prosecution, and the inference would be that the Howard government’s creation of the AG fiat was certainly not to protect Myanmar or Sri Lankan officials, nor Israeli ministers, but rather to hamper local genocide cases in terms of First Peoples.

Australia is a party to the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, which makes it incumbent upon us to prevent it when occurring. But rather the Howard government blocked this ability in general and this breaches Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR), as well as basic equality before the law.

Crimes in federal law

The Rome Statute of the International Criminal Court establishes both the ICC and the four core international criminal offences: genocide, war crimes and crimes against humanity since its inception, and the crimes of aggression since 2010. And as Australia ratified the document in 2002, it was incumbent upon the nation to enact the initial three crimes in domestic law.

The various forms of genocide, crimes against humanity and war crimes came into effect in federal law on 1 September 2002, under division 268 of the Criminal Code. And these laws carry universal jurisdiction, meaning this nation can prosecute any individual for the commission of any such offence having been perpetrated anywhere on the planet.

However, the legislation establishing these laws locally also sought to insert sections 268.121 and 268.122 into the Criminal Code, which requires the federal attorney general to sign off on any prosecution involving the division 268 international offences, or the case is refused. And once this block is applied to a genocide case, it cannot be reversed.

Thorpe’s legislation goes up for the vote on 28 November and if successful, it would remove the attorney general fiat, or the capacity for one person to block the ability to prosecute these offences for all others. And a large number of those who made submissions to the Senate inquiry insist that the AG’s fiat is blocking the nation’s ability to meet its obligation under international law.

Enabling genocide

The Legal and Constitutional Affairs Committee outlined that while many consider the AG’s fiat grants the ability to prevent prosecutions for some international crimes and this “unfettered discretion” could lead to political decisions, its members also found that this legal device “is a common and long-standing feature of federal law” and is necessary when considering such matters.

The committee then points to section 16.1 of the Criminal Code, which requires attorney general consent to prosecute a crime if it has been committed oversees. However, this does not address the fact that the crime of genocide cannot be prosecuted locally with the consent of the chief law officer even in terms of when this crime has been committed on this continent.

In her dissenting report, Senator Thorpe sets out that the committee’s approach to her bill has been a “complete farce”. She added that this reflects government “unwillingness to adhere to its international obligations in the prevention and punishment of the worst of all crimes… as per the Genocide Convention and the Rome Statute”.

The Gunnai, Gunditjmara and Djab Wurrung Senator added that despite the overwhelming support for her bill, the committee ruled against it, and then failed to make any other suggestions as to how Australia might meet its international obligations to prosecute these atrocity crimes.

“One 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,” Thorpe said, as she gave a clear indication of the underlying issue that the nation has with atrocity crimes hanging around on the books just waiting to be exercised.

The senator recommended the Senate pass the bill, that the attorney general requirement to sign off on international criminal prosecutions be removed and that an international criminal investigations unit be established. But if the bill is not passed, she recommends a review process around the exercise of the AG fiat and that steps are taken to acknowledge the genocide that has occurred here.

“Australia is a signatory to the Genocide Convention and the Rome Statue,” Senator Thorpe said on the day of the committee report release. “This means it’s our legal obligation to do all we can to prevent and punish genocide, crimes against humanity and war crimes.”

“The report’s recommendation shows the government’s stated commitment to these conventions is disingenuous,” she continued and questioned why a nation like this one would sign up to these international conventions if it does not have any intention of following them.

“‘Never again’ should actually mean ‘never again’,” Thorpe ended.