26 July 2024

Submission: 

In July 2024, ACIJ provided its written submission to the Senate Legal and Constitutional Affairs Legislation Committee’s Inquiry into the Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024.

The ACIJ’s work focuses primarily on international criminal justice and accountability in the context of Australia. While Australia considers itself a strong proponent of international criminal justice, it has historically faltered in its commitment to domestically pursue accountability for international crimes. Thus, ACIJ’s submission focuses on addressing some of the legal and practical challenges that have impeded prosecutions of such offences, including the requirement to obtain consent from the Attorney-General under section 268.121 of the Criminal Code and the restriction against ordinary judicial review of such decisions.

The ACIJ’s submission makes the following recommendations:

Recommendation 1

Sections 268.161 and 274.3(1) of the Criminal Code be repealed, such that the consent of the Attorney-General will no longer be required for proceedings commenced under Division 268 and Division 274. Additionally, section 16.1 should be amended to exclude the requirement of the Attorney-General’s consent for both Division 268 and Division 274 (torture) offences.

Recommendation 2

In the alternative to Recommendation 1, the Attorney-General’s discretion under section 268.121 be amended to be subject to an appropriate legislative test that could include public interest considerations such as the seriousness of international crimes, the rights of victims to access justice and Australia’s obligations under international law to prosecute such crimes. Reasons for the decision of the Attorney-General in exercising their discretion should be accessible to the public. This test should also apply to Division 274 offences.

Recommendation 3

Repeal the restrictions on review or appeal of a decision of the Attorney-General under section 268.122 of the Criminal Code to give or refuse consent to institute proceedings for an offence under Division 268 such that any such decision can be subject to review or appeal, particularly under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Recommendation 4

The Attorney-General should issue a new Ministerial Direction to the Australian Federal Police (AFP) under subsection 37(2) of the Australian Federal Police Act 1979 (Cth), to include the investigations of international crimes as an area of focus. The Australian Government should further ensure that the AFP have sufficient resources, training and technical support to pursue such investigations.

Recommendation 5

Australia must establish a permanent specialised international crimes unit.

Read ACIJ’s Submission here.

 

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