Citizens Should Be Allowed to Launch Legal Proceedings for Genocide: Academics

Law academics said current law interpretation restricted the pathway for the prosecution of international crimes in Australia.

A judge's gavel rests on top of a desk in the courtroom in Miami, Fla., on Feb. 3, 2009. Joe Raedle/Getty Images

Private citizens should be able to commence legal proceedings for genocide committed in Australia, a parliamentary committee has been told.

At an inquiry on July 30, academics from several universities in Australia presented their views on the genocide bill proposed by Victorian Senator Lidia Thorpe.

The move is aimed at opening the door to future proceedings against past acts of alleged genocide against Indigenous Australians.

The Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024 seeks to amend the Criminal Code Act 1995 (Cth) to remove the requirement for the attorney general’s consent in initiating proceedings of genocide.

Under division 268 of the Act, Australia has jurisdiction to investigate and apply criminal offences to war crimes, genocide and crimes against humanity that occur in another country.

However, to proceed with an offence under division 268, the attorney-general must give written consent.

In addition, the attorney-general has the power to refuse to give consent and suspend, cancel or revoke a consent that has been given. Once a decision has been made, it is final and cannot be appealed.

In introducing the bill, Thorpe said it would prevent “political interference” in legal proceedings against heinous crimes and allow anyone to file proceedings in court.

Current Procedures Too Restrictive: Panel

During the hearing, Emma Palmer, an academic at Griffith University’s law school, said under current legal interpretations, it was not possible for Australian citizens to initiate prosecution for war crimes, crimes against humanity, and genocide.

She cited a case in which High Court judges ruled that the Attorney-General was the only one to commence prosecution for those offences.

“It’s our view that private citizens should be allowed to initiate prosecutions for international crimes under this legislation,” she told the Legal and Constitutional Affairs Legislation Committee.

“The right of individuals to institute proceedings for Commonwealth offences is preserved in the Crimes Act 1914 and in the Director of Public Prosecutions (DPP) Act 1983.

“And there are already systems in place to prevent the abuse of this private prosecution process, including the fact that the Commonwealth DPP has the power to take over or discontinue a privately initiated prosecution if appropriate.”

Palmer also pointed out that the broad power of the attorney-general under current law was an obstacle to Australia’s responsibility to ensure that international crimes did not go unpunished.

“The fact that the attorney general is empowered to refuse consent without providing any reasons, and with almost no avenues for challenging, appealing, reviewing, quashing or even calling into question that decision means that there is very little accountability for the exercise of this discretion,” she said.

As such, she endorsed removing the Attorney General’s consent requirement from division 268.

Sarah Williams, a law professor at the University of New South Wales, also supported the removal of the requirement.

“Having a political actor exercise of veto and prosecutions exposes this process to the perception of political interference and risks exposing Australians to prosecution before the International Criminal Court,” she said.

The professor then proposed replacing the requirement for the attorney general’s consent with the requirement of consent from the DPP.

“This recognises that such prosecutions can be complex and require the additional level of review before proceeding,” Williams said.