David Shoebridge (NSW, Australian Greens) Share this | Hansard source

Rarely do you see a political party step forward and say that it is in the interests of all Australians to have the law so skewed that politicians can decide whether or not somebody will be prosecuted for the crime of genocide, crimes against humanity or war crimes. Rarely do you see such a blatant exercise of self-interest from the two parties in this chamber as we just saw from Senator Cash, stepping forward and defending the situation.

Senator Cash said, 'God help us.' She as a potential future attorney-general would decide whether or not a prosecution could be issued against the Israeli Prime Minister, if he came to this country, and pretend that that would be an exercise of justice. We know her irreparable bias against the people of Palestine, the irreparable bias that the coalition has against the international court of criminal justice and the irreparable bias that the coalition has against international law holding decision-makers, like senior decision-makers in this government, to account for their crimes. Heaven help us if we get to that situation.

The Greens support this legislation because, unlike the coalition and unlike Labor, we believe that Australians want perpetrators of genocide, of war crimes and of crimes against humanity to be held to account for their crimes, whether they occurred in this country or anywhere around the planet. And we don't believe that a politician should be able to veto those prosecutions. Indeed, it's offensive to the very concept of rule of law that a politician, using a political analysis, will let somebody who is potentially guilty of the worst crimes on our statute books, the worst crimes known to humanity, off for political considerations.

The importance of this change is obvious right now. We've seen a genocide being carried out in Gaza, and that creates obligations under international law for our country to take action, for every country on the planet to take action. We have an obligation individually and Australia has an obligation collectively, under the genocide convention, to prevent genocide wherever it's occurring and to hold perpetrators to account at any time. We already know what the coalition would do if one of those people perpetrating the genocide was to come to Australia—they would refuse to permit Australian authorities to arrest or to issue a warrant, and would refuse to even allow a prosecution to get before the courts.

You'd almost think there's a global ruling class who think that they should be able to protect their mates and protect other decision-makers who are making these kinds of brutal decisions to inflict war and violence at impossible scale against communities. You'd almost think they want to make sure they and their mates are never held to account. That's what this is. It's not about the national interest. It's about the interest of senior decision-makers in countries like this, the United States and the United Kingdom. It's about a club that's protecting the club and ensuring international law will never reach it and actually take out the powerful.

If you want a classic example of how the club did that, we saw the way the UK failed to extradite Augusto Pinochet, a notorious war criminal, a notorious leader who oversaw mass murder and political torture. When Pinochet was held under house arrest, facing potential extradition to Spain to be prosecuted for those crimes against humanity, Margaret Thatcher, the coalition's poster child, sent him a bottle of scotch whisky and said, 'We support you, here's a British institution that will stand by you,' and issued Pinochet every political support, as did former US President George Bush. The club protects the club. They don't care about the genocide. They don't care about the war crimes. They don't care about the crimes against humanity, because protecting themselves is more important.

Of course we support getting rid of a political veto before crimes such as genocide, crimes against humanity and war crimes are prosecuted. The argument put by the coalition just then, the facile argument put by the coalition that this would allow unlimited activists to be running prosecutions, is either deliberately misleading or shows a degree of base ignorance of how the criminal law operates in this country. But either of those are a poor conclusion made by somebody who says that they want to be a future attorney-general of this country. If Senator Cash knew how the criminal law works, if Senator Cash had read any of the submissions that were put in for this bill—which you wouldn't think would be an unreasonable requirement before standing up and speaking against it. Senator Cash may, for example, have read the submission from the Australian Centre for International Justice. The Australian Centre for International Justice details the law in relation to the role of the Director of Public Prosecutions for the Commonwealth. I'll read:

The Commonwealth Director Of Public Prosecutions … exercises discretion to institute prosecutions for offences against the Commonwealth in accordance with the CDPP … policy. The CDPP also reserves the right to decide whether to proceed with, take over or decline a private prosecution in accordance with the same policy.

You see, the spectre of unlimited private political prosecutions being run by the coalition is plainly false—legally ignorant. If at any time the CDPP thought that an inappropriate prosecution was being undertaken they could take it over and shut it down, and historically they've done that on numerous occasions. But perhaps Senator Cash, who says she wants to be the future Attorney-General, doesn't understand that basic principle in criminal law. If so, that's an indictment on the coalition and an indictment on Senator Cash.

So, what is the rationale for the Attorney-General having the consent? We have an existing set of laws where, if there's evidence of a crime—and here some of the worst crimes: genocide against First Nations peoples in this country, genocide against peoples across the planet, crimes against humanity, and war crimes—the AFP should be undertaking an investigation. If they gather the brief of evidence, it goes before the CDPP, who review the brief of evidence as to whether there's sufficient evidence to persuade a jury beyond reasonable doubt that it should go before the courts. That's how the law works for every other criminal offence on the books. But in relation to this—the most serious crimes—there's this political veto.

Again, I go to the Australian Centre for International Justice, who explained the rationale for the Attorney-General's consent. They say that while the explanatory memorandum for the bill that introduced this legislation originally did not detail why the Attorney-General's consent requirement was necessary for division 268 offences, 'the historical justification for such consent has been that certain prosecutions could potentially impact Australia's international relations or national security, necessitating government-to-government contact'. Additionally, the consent has been justified as a safeguard against inappropriate prosecutions.

Well, we know that last argument is specious, because the CDPP has the power to take over and end. But when it comes to the others, how is it in our national interest to let war criminals walk free? Can someone explain to the Australian public how it's in the national interest to let those who have committed genocide visit our country and walk free? Can someone explain how it's in our national interest to allow war criminals to wander freely around the planet without fear of prosecution? The Greens can't understand that, but apparently Labor and the coalition think there's an overwhelming national interest in letting those who commit genocide, war crimes and crimes against humanity walk free and that somehow that will make a better world. Well, we fundamentally reject that proposition.

We say not only that this act should be passed but also that history shows that Australia needs a specialised war crimes unit, with the skills and expertise to respond quickly, build cases and hold war criminals to account. The sorry history in Australia of those for whom there was compelling evidence of war crimes being allowed to visit the country and then walk free, despite our having these laws on the statute books, is a sorry tale of the AFP and a sorry tale of deliberate government inaction.

When Sri Lankan president Mahinda Rajapaksa visited this country in 2011 there were attempts by the Tamil community to have a private prosecution brought, because the Sri Lankan president was deeply culpable in the decisions that led to the mass killings of Tamils in the final few months of the war in 2009. Political interference and a decision by the then Labor Attorney-General that they would not prosecute killed the prosecution. And when Aung San Suu Kyi entered the country in 2018 there were requests to the then coalition Attorney-General for consent for a prosecution because of the crimes against the Rohingya community—crimes that have continued since, at an appalling rate. They have the largest refugee population on the planet as a result of those crimes against the Rohingya people. In a press release, the then coalition attorney-general Christian Porter declined the prosecution, saying:

Aung San Suu Kyi has complete immunity, including from being served with court documents because under customary international law, heads of state, heads of government and ministers of foreign affairs are immune from foreign criminal proceedings and are inviolable …

That is directly contrary to our obligations under the convention, which expressly says that provisions providing immunity to heads of state shall not limit the reach of the law when it comes to genocide and crimes against humanity.

In 2019, Jagath Jayasuriya, who was, at that point, a retired Sri Lankan general, had effectively directed the appalling genocidal attack on the Tamils in 2009. He was deeply complicit as a security force commander for operations in the Vanni region of Sri Lanka. Before he came here, people approached the AFP and said: 'You must begin investigations. This is a war criminal.' Repeated evidence was provided to the government of the day, to the then Attorney-General and to the AFP, and after months and months of urging, they did nothing. Jayasuriya was present in Australia between October and November 2019, but the AFP did nothing. Indeed, the AFP wrote back in September 2021, after failing to take action, and said it was because of 'an administrative oversight' that they didn't hold a war criminal to account.

So we say this: of course we support this bill. War criminals, those who commit genocide and those who commit crimes against humanity must be held to account—whether those crimes happened here against First Nations peoples or anywhere on this planet. We commend Senator Thorpe for bringing in this bill and we reject the criticism of her passion and her commitment that we saw from the coalition. It's about time that the planet bent towards justice, and we can do a bit here by removing the bars to the prosecution of those who commit genocide and by making Australia live up to its international commitments.