All victims and survivors of the most heinous crimes like Genocide should be able to seek justice through legal systems that adhere to international standards and are free from political interference.
No politician should get to say who can and can’t be held accountable in our legal system, particularly for the most heinous crimes like Genocide.
But right now in this country, the Attorney-General has unchecked power to block prosecution of genocide, war crimes and crimes against humanity from proceeding in our courts. This power is called the AG’s fiat.
That’s why I introduced a Private Senators Bill to strip the Attorney-General of this unjust and dangerous veto power to parliament, the Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024. You can read more on the background and purpose of the Bill here.
In other countries, victims and survivors are free to initiate proceedings against these crimes in local courts – this is a pathway to having cases heard in the International Criminal Court.
My bill would help remove political interference from our legal system and give victims and survivors of the most heinous crimes a better chance at achieving justice and preventing further crimes. As a signatory to The Genocide Convention, this government has an obligation to help victims and survivors to pursue justice. But this country has a long history of avoiding this responsibility.
While signing onto the Convention in 1948, successive Australian governments have avoided implementing the Genocide Convention into domestic law, besides the Convention specifically seeking signatories to do so.
There have been cases brought against the Australian government itself for its role in Genocide here and overseas, though these have failed due to Genocide not having been a crime under Australian law at the time.
When Australia finally amended the Criminal Code Act in 2002 to criminalise Genocide, Crimes against Humanity and War Crimes - which are called atrocity crimes -, it made sure that nothing that happened before 2002 could be pursued in court. It also included the Attorney-General’s power (the so-called ‘AG’s fiat’) to block prosecutions going ahead and a provision that meant such decisions could not be legally challenged.
Since then, all too often, Attorneys-General have stood in the way of justice.
In 2018, Attorney-General Christian Porter blocked the Australian Rohingya community from pursuing justice against Aung San Suu Kyi for crimes against humanity in relation to the Rohingya Genocide in Myanmar.
Before that, in 2011, Attorney-General Robert McClelland blocked a war crimes case initiated by Tamil Australian man, Jegan Waran, who had witnessed Sri Lankan forces bomb hospitals and ambulances during the civil war there.
This is completely against the intention of the Genocide Convention, which is based on our shared responsibility to prevent the very worst of humanity.
My Bill would prevent political interference in this process and also mean that governments can be held accountable for their own actions, both here and overseas.
Recently Foreign Minister Penny Wong came under fire for cutting aid to UNRWA in Gaza, with the Chief of the agency describing the move as ‘collective punishment’, which is a war crime.
Meanwhile, racial discrimination class actions are being pursued across the country against a number of state governments for unjust removal of children into state care, with lawyers and families calling this a ‘Modern Stolen Generation’.
The 1997 Bringing Them Home Report found that the policies that initiated the Stolen Generations in the 20th century were genocidal in intent.
My Bill would make it possible to hold the government accountable for such inhumane policies and actions.
In short, my Bill would:
- Remove the requirement for the Attorney-General to consent to atrocity crime cases. This means anyone can file for proceedings on these crimes in a court.
- Allow cases blocked by previous Attorneys-General since 2002 to be reviewed.