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Inquiries and Reports - Australia
Senate Legal and Constitutional References Committee
Commonwealth of Australia, Canberra
June 2000
On 14 October 1999, the Senate referred the Anti-Genocide Bill 1999 to the Legal and Constitutional Affairs References Committee for inquiry and report by 30 June 2000.
The terms of reference for the Inquiry were as follows.
(1) The adequacy of Australia’s implementation of the Convention for the Prevention and Punishment of the Crime of Genocide and other relevant international obligations, with particular reference to:(a) the formulation of an appropriate definition of genocide;
(b) the status of the convention under Australian law, particularly with reference to the decision of the High Court in Minister for Immigration and Ethnic Affairs v Ah Hin Teoh;
(c) laws in other jurisdictions that have implemented the convention;
(d) the appropriateness or otherwise of the retrospective application of the provisions of the Bill;
(e) the implications of the Federal Court decision on 1 September 1999 in Nulyarimma v Thompson;
(f) the extraterritorial application of Australian law, particularly as it may relate to East Timor; and
(g) the relationship between Australian and international criminal law enforcement mechanisms for bringing perpetrators of genocide to justice.
(2) The Committee, in its report, must also include suggested draft amendments to the Bill.
The following extract provides the background to the inquiry (pp 2–3) and the conclusion and recommendations (pp 51–3).
Editor’s Note: footnotes have been extracted from the original document.
...
1.6 The stated aim of the Bill is to achieve compliance with the Genocide Convention by formally incorporating the crime of genocide into Australian domestic law.
1.7 In his Second Reading Speech, Senator Greig referred to the multipartisan spirit with which the Genocide Convention Bill 1949, the Bill to ratify the Convention, was embraced at the time of its introduction. Parliamentary leaders of both the Government and the Opposition affirmed Australia’s abomination of the crime of genocide and Australia’s commitment to the prevention and punishment of genocide.
1.8 Recent inquiries have drawn the attention of the Parliament to the lack of legislation for implementation of the Genocide Convention.
1.9 In its 1992 review of Australia’s efforts to promote and protect human rights, the Joint Standing Committee on Foreign Affairs, Defence and Trade recommended that the Australian Government introduce legislation to implement the Genocide Convention. The Committee concluded that it is difficult ‘to know ... whether the failure to legislate has been a matter of neglect or purposeful inaction’.[4]
1.10 In a review in 1994, the Committee commented:
The Committee notes with regret that the Government has decided against enacting such legislation, apparently believing that existing state and federal legislation obviates the need for the creation of a specific offence of genocide. The Committee does not share the view that there is no need for legislation specific to the offence of genocide and repeats its recommendation from 1992 that such legislation should be enacted by the Government.[5]
1.11 In May 1997, the Human Rights and Equal Opportunity Commission report on the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families stated:
While Australia ratified the 1948 Genocide Convention, its provisions have not been incorporated into Australian law. The Genocide Act 1949 (Cth) merely approved ratification of the Convention and extended its provisions to external territories. Australian service personnel engaged in conflicts overseas are covered by its provisions but not those working within Australia. ... The effect of implementation would be to create a criminal offence of genocide, including attempting to commit genocide, complicity in the crime of genocide and inciting others to commit genocide. Effective penalties would have to be provided. Implementation would establish a right to compensation for victims of genocide.[6]
1.12 That inquiry, in Recommendation 10, recommended that the Commonwealth legislate to implement the Genocide Convention with full domestic effect.
1.12 The Anti-Genocide Bill has been introduced against the background of the judgment of the Full Federal Court of Australia on 1 September 1999 in the case of Nulyarimma v Thompson which found that the crime of genocide was not recognised in Australian courts.
1.13 Further, at the time of the introduction of the Bill, the events in East Timor had produced charges of atrocities, war crimes and genocide.[7]
...
5.1 Throughout the conduct of its Inquiry, the Committee has been reminded of the grave responsibility it assumes in deliberating upon legislation dealing with the most egregious of crimes that humans can perpetrate on each other, the intentional destruction of another group of people. Jean-Paul Sartre has, in few words, starkly expressed the horrific meaning of the crime:
The fact of genocide is as old as humanity. To this day there has been no society protected by its structure from committing that crime. Every case of genocide is a product of history and bears the stamp of the society which has given birth to it.[1]
5.2 It is no easy task to deal, within the rational construct of law, with the irrationality that perpetrates this crime. A civilised society, however, demands that it have adequate, effective laws to punish and prevent acts of genocide. For this reason, the Committee has approached its task with the principal aim of considering, if Australia does require legislation of this kind, how to arrive at a law that is clear, certain, and workable.
5.3 The Committee has sought to answer the three questions that it posed at the outset of the Inquiry: whether there is a need for this legislation in Australia; whether the Bill meets such a need; and if it does not, how could it be improved upon?
5.4 The Committee has accepted, on the weight of evidence before it, that genocide is not a crime in Australia at the present time. The Committee notes the judgment of the Full Federal Court in Nulyarimma v Thompson which stated that:
Leaving aside the matter of intent, it is possible to make a case that there has been conduct by non-indigenous people towards Australian indigenes that falls within at least four of the categories of behaviour mentioned in the Convention definition of ‘genocide’: killing members of the group; causing serious bodily harm or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and forcibly transferring children of the group to another group.[2]
5.5 The proposition that genocide has occurred in Australia, or that it could occur, forces us to be vigilant in the future.
5.6 The Committee has concluded that anti-genocide legislation in Australia is both necessary and timely.
5.7 Australian anti-genocide law should be forward-looking, affirming the principle that Australia abhors the crime of genocide and sets down clear and certain punishment of its perpetrators.
5.8 In this context the Committee has noted, in particular, that a number of witnesses raised compelling arguments about the educative role that anti-genocide legislation ought to adopt in alerting people to, and informing them about, the horrors of genocide. The Committee was reminded by Mr Jeremy Jones of the Executive Council of Australian Jewry, that, in January of this year, Australia joined with other countries in signing the Declaration of the Stockholm International Forum on the Holocaust. That Declaration, in two of its items, stated:
We will promote education about the Holocaust in our schools and universities, in our communities and encourage it in other institutions.
With humanity still scarred by genocide, ethnic cleansing, racism, anti-semitism and xenophobia, the international community shares a solemn responsibility to fight those evils.[3]
5.9 The Committee holds that a domestic anti-genocide law should be a powerful tool in bringing about change in attitudes towards the crime of genocide in all its manifestations.
5.10 The Bill has opened up the path for discussion of what form appropriate legislation should take. The Committee has concluded that, subject to lawful exercise of the external affairs power under the Constitution, there may be merit in examining those additional matters or alterations contained within the Bill which depart from the text of the Genocide Convention. We have concluded that concrete matters, such as the constitutionality of amending an international treaty, and judicial and administrative implications of the legislation, should be explored more fully by expert agencies. The Committee gave consideration to making suggestions for amendments to the Bill but quickly realised that, in order to do this task properly, much greater resources and expert advice would have to be made available to the Committee.
5.11 The Committee recommends that the Parliament formally recognise the need for anti-genocide laws.
5.12 The Committee recommends that the Bill be referred to the Attorney-General for consideration of the matters identified by the Committee in respect of its contents, and that the Attorney-General report his findings to the Parliament by 5 October 2000.
[4] Joint Committee on Foreign Affairs and Trade, A Review of Australia’s Efforts to Promote and Protect Human Rights, AGPS, 1992, pp xxvii, 31–32. Similar comment was made in 1991 in the Report of the Review of Criminal Law (Cth) chaired by Sir Harry Gibbs.
[5] Joint Committee on Foreign Affairs, Defence and Trade, A Review of Australia’s Efforts to Promote and Protect Human Rights, AGPS, 1994, p 26.
[6] Human Rights and Equal Opportunity Commission, National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Bringing them home, 1997, p 295.
[7] See, for example, transcript of interview of the Minister for Foreign Affairs and Trade, the Hon. Alexander Downer MP, with Geoffrey Barker, Paul Bongiorno, and Paul Kelly on Meet the Press, 5 September 1999; Karen Polglaze, ‘Asia: Soldiers disobeyed orders in East Timor: Wiranto’, Australian Associated Press, Jakarta, 16 May 2000; and Geoff Spencer, ‘Asia: Wiranto denies he is war criminal over East Timor’, Australian Associated Press, Jakarta, 11 June 2000.
[1] Patrick Thornberry, International Law and the Rights of Minorities, p 60.
[2] Wilcox J in Nulyarimma, in Information Package for the Committee’s Inquiry, p 3.
[3] Transcript of evidence, Executive Council of Australian Jewry, p 29.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2001/54.html