Legal experts argue that citizens should have the right to initiate legal action for genocide.
Law academics have stated that the current interpretation of the law restricts the pathway for prosecuting international crimes in Australia.
According to a parliamentary committee, private citizens should have the ability to initiate legal proceedings for genocide committed in Australia.
During an inquiry on July 30, academics from various universities in Australia presented their perspectives on the genocide bill proposed by Victorian Senator Lidia Thorpe.
The aim of this move is to enable future proceedings against past acts of alleged genocide targeting Indigenous Australians.
The Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024 aims to amend the Criminal Code Act 1995 (Cth) to eliminate the requirement for the attorney general’s consent to initiate genocide proceedings.
However, to pursue an offense under division 268, written consent from the attorney general is required.
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In addition, the attorney general has the authority to refuse consent and to suspend, cancel, or revoke a consent that has been granted. Once a decision is made, it is final and cannot be appealed.
Citizens Should Be Able to File Proceedings Against Genocide Crimes: Panel
During the hearing, Emma Palmer, a lecturer at Griffith University’s law school, emphasized that under the current legal interpretations, Australian citizens are unable to initiate prosecutions for war crimes, crimes against humanity, and genocide.
She referred to a case where High Court judges ruled that only the Attorney-General could initiate prosecutions for these offenses.
“It is our belief that private citizens should have the right to commence prosecutions for international crimes under this legislation,” she informed the Legal and Constitutional Affairs Legislation Committee.
“The rights of individuals to institute proceedings for Commonwealth offenses are preserved in the Crimes Act 1914 and in the Director of Public Prosecutions (DPP) Act 1983.
“There are already systems in place to prevent the misuse of this private prosecution process, including the fact that the Commonwealth DPP has the authority to take over or discontinue a privately initiated prosecution if necessary.”
Palmer also identified the broad power of the attorney general under current law as a barrier to Australia’s obligation to ensure that international crimes do not go unpunished.
“The attorney general’s ability to withhold consent without providing any justification, and with minimal avenues for challenging, appealing, reviewing, annulling, or even scrutinizing that decision means there is very little accountability for the exercise of this discretion,” she explained.
Therefore, she supported the elimination of the Attorney General’s consent requirement from division 268.
Sarah Williams, a law professor at the University of New South Wales, also endorsed the removal of this requirement.
“Allowing a political actor to veto prosecutions exposes this process to perceptions of political interference and risks subjecting Australians to prosecution before the International Criminal Court,” she argued.
The professor suggested replacing the requirement for the attorney general’s consent with the need for consent from the DPP.
“This acknowledges that such prosecutions can be intricate and require an additional level of scrutiny before proceeding,” Williams concluded.
