Senator SCHACHT (4:11 PM) —I rise to speak on the report of the Joint Standing Committee on Treaties, which I am a member of, and particularly on report 45, The statute of the International Criminal Court. I am delighted to speak in support of the unanimous recommendations contained in this report. I have not at times been overly enthusiastic about some of the `make work' aspects of the treaties committee, but this was an important treaty with an important statutory obligation on Australia. The public hearings and the public debate that ensued have been very healthy. As a result of the report, I trust the government will accept the recommendations that were unanimous and bipartisan from everybody on the committee to strengthen the enabling legislation to ratify the establishment of the ICC.

There were some submissions from the public that struck me as having more to do with The X-Files television program than with dealing seriously with the ICC. For example, one submission said that this was part of a world Zionist plot or a world government plot led by Fabians. I happen to be a member of the Fabian Society, and it was news to us that it was a Fabian plot. But that submission was at the fringe. Generally, the debate was very good.

Those who opposed strongly and still do to this day—eminent citizens such as the former Chief Justice Sir Harry Gibbs, former Senator John Stone and others—have written strongly against ratifying this treaty. They believe there is a great risk to the Australian legal system and Australian citizens. There is a risk, but I believe the risk is very moderate and can be dealt with within a democracy such as Australia. If the ICC attempted to carry out the things or rort the processes in the ways that some of those people were worried about then Australia would give notice that within 12 months we would withdraw, and I would be the first to support that. I think we will be able, as the court evolves in its work, to have a major say in ensuring that it is run properly with proper jurisprudence and proper processes that guarantee rights to those who are before the courts.

It is important for the future that people in the world know, and they might be deterred. Maybe Senator Mason is correct: you might not deter the odd dictator or the authoritarian thug who is unfortunately running some country. But from time to time some of them may be brought to justice before this court and that is a very useful step indeed; in the future someone can be brought to justice for some of the worst atrocities that have occurred in the world in the past century. Who disagrees with the fact that those who committed genocide in the former Republic of Yugoslavia are now before the tribunal in the Hague specifically dedicated to that? Who disagrees with that after what happened in Rwanda? We are asking that there be a standing court.

I believe that Australia should ratify this. We should put the enabling legislation through by 30 June so that when the court meets, now that it has had over 60 countries sign it, ratify it, and they can get on with the construction of the court, Australia is able to be there to influence that process from the beginning and, above all, nominate one of the 18 judges and nominate the prosecutors in the panel. We are able, as a founding member of this court and in the international proceedings that have established it, to argue that an eminent Australian jurist should be appointed and that eminent Australian prosecutors, or those with a legal background, be appointed. It is very important that we are there, but we can only be there if the government puts this legislation, with our amendments, to the parliament for carriage by 30 June. If we wait longer than that the process will begin without us. We should be there from the beginning.

Senator Mason was very kind to mention that one of the reasons he came on board to support the recommendations, despite having a number of practical objections, was recommendation 6: that there be a parliamentary continuing oversight of the work of this court. In the private discussion in the committee, when we discussed how we could monitor the work of the committee, I was reminded of what we do with the Human Rights Subcommittee. We ask the government to regularly table a report of what Australia has done to promote human rights. The committee then conducts public hearings where people in the community can debate, yes or no, and promote ideas; then we make a report back to parliament, making judgments about the performance of the government.

On this occasion we now ask the government to report annually to parliament on what the court has been doing and its procedures. The treaties committee, augmented by other members of parliament who wish to serve with us, will then look at that report, hold public hearings and be assisted by a panel of eminent jurists who have expertise in this area. So we will report as a parliamentary committee, separate from the executive, to the parliament on the work of the court. One major advantage of this will be assuaging the fears that some people have about us giving up our sovereignty over legal process. Even more importantly, I think it will lead to the people of Australia seeing that the court is working in a correct way. And when we see difficulties, the parliamentary committee can then make recommendations back through the government to the court itself. That will strengthen the work of the court and make it more effective. So I was pleased to make that contribution that led to that very important recommendation.

The other recommendations about amendments, which are in 7 through to 11, are very sensible amendments that the enabling legislation should take up. They indicate that there are areas where we would want to ensure clarity in the process of what the court is doing. I think those are very useful.

Sixty-six nations, as of late April, have ratified, signed up. Hopefully, Australia will be able to do this within the next month. Certainly there are a number of countries that have signed up, have ratified, who do not have a great history of jurisprudence, of democracy, as Senator Mason has said. But look down the list: overwhelmingly it is the democracies of the world that have signed up. Senator Mason mentioned the People's Republic of China. They have not even signed, certainly have not ratified—they have not done anything. I did raise this issue because I have sat in a human rights delegation in China in discussions with the Supreme Court of China—the judges, as they call them in that country—and discovered that they were appointed according to their political seniority within the Communist Party of China, not on any legal skill.

Certainly we would want to argue—and that is why we should be there from the beginning—that if any country nominates people that do not have a demonstrable skill and background in jurisprudence and legal process and understand all of that, then they should not be appointed. I think that is an important issue. But, looking down the list so far, overwhelmingly it is the democracies that have signed up. Senator Mason is correct: the thugs of the world have not signed up so far. If they refuse to sign, and therefore keep themselves out of the jurisdiction of the court, then the democracies of the world can bring other diplomatic pressure to bear, such as what was put on Serbia to hand over war criminals. They did in the end because they found that they were not going to get the level of aid from NATO or the European Union. That political pressure put people before the Hague court. That is the sort of political pressure I support, because it means war criminals have to face the music. I think we would all support that. So, in the political sense, I think the democracies of the world— those who have a demonstrable and clear-cut record of being democracies—will ensure that the process is properly debated. Of course, from time to time there may be an odd mistake made, as there is in our present legal system in Australia, but that risk is minuscule compared to the advantages.

My final comment, as a member of the treaties committee, is that every week we look at treaties we are signing that, in some way or other, affect the absolute purity of Australian sovereignty. In an international world, with the WTO, for example, we agree to accept arbitration that will cost us a penalty, such as in the Howe Leather case. We did not like it but we had to accept it because of the broader benefits of the WTO. I think it is the same with the ICC. So on balance, with the major recommendation about a standard oversight of the committee that I think will strengthen it and should assuage the fears of many—not a majority—in the community, we are not giving up unnecessarily the sovereignty of Australia.