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Wednesday, 24 February 2010
Page: 1124


Senator Ludlam asked the Minister representing the Minister for Home Affairs, upon notice, on 30 September 2009:

(1)   With reference to the Memorandum of Understanding (MoU) between Australia, the United Kingdom, Canada and the United States of America, regarding the sharing of information on suspected war criminals, how many requests has Australia made to these countries on particular individuals since the MoU was signed.

(2)   What proactive measures has the Australian Federal Police (AFP) taken in the past 12 months to search for, and identify, individuals in Australia that are suspected of committing war crimes, as provided for under the Geneva Convention.

(3)   What are the AFP’s guidelines on investigating war crimes committed prior to 2002.

(4)   Does the AFP investigate potential war crimes, crimes against humanity and genocide that were committed prior to 2002 in internal conflicts, or only international conflicts.

(5)   Does the AFP investigate Australian citizens and residents only or does it also investigate those who are visiting Australia.

(6)   Does the AFP provide specialised training for staff that investigate war crimes, crimes against humanity and genocide; if so: (a) what training is offered; (b) is the training offered to all members of the Economic and Special Operations portfolio; and (c) how many staff have undergone this training in the past 10 years.

(7) (a)   What other issues does the Economic and Special Operations portfolio investigate in addition to war crimes, crimes against humanity and genocide; (b) how many staff are dedicated to war crimes, crimes against humanity and genocide at any one time; (c) what proportion of its resources are dedicated to investigating war crimes suspects; and (d) what is the average length of time an AFP officer remains in the Economic and Special Operations portfolio.

(8) (a)   In the past 10 years, how many individuals have been investigated by the AFP for war crimes, crimes against humanity or genocide; (b) how did these individuals come to the attention of the AFP; and (c) how many of these investigations were referred to the Commonwealth Director of Public Prosecutions (DPP).

(9)   Has the AFP pursued any other remedies besides referral to the DPP; if so, what were they and on how many occasions.

(10)   Has the AFP ever investigated allegations that Mr Daniel Snedden was involved in war crimes; if so, when did these investigations commence.

(11)   Is the AFP currently investigating Mr Snedden following the recent decision of the Full Court of the Federal Court of Australia to allow his appeal against extradition.

(12)   If sufficient evidence for potential war crime charges is found in the investigation into the deaths of the ‘Balibo Five’ in East Timor in 1975, on what legislative basis will the AFP proceed.

(13)   Since coming to power, what steps has the Government taken to close any loopholes that allow war criminals to enter or reside in Australia without fear of prosecution.

(14)   (a) Is the Attorney-General considering amending current laws so that war crimes committed in internal conflicts prior to 2002 may be punishable in Australia; if not, why not; and (b) is the Government prepared to extend the date that these offences became crimes in Australia to 1948 and 1949, when the country ratified the Geneva Convention in order to ensure that there is no immunity for war criminals in Australia; if not, why not.


Senator Wong (Minister for Climate Change and Water) —The Minister for Home Affairs has provided the following answer to the honourable senator’s question:

(1)   The Memorandum of Understanding (MoU) is between the Department of Immigration and Citizenship (DIAC) and counterpart agencies in Canada, the United Kingdom and the United States of America.

(2)   The Australian Federal Police (AFP) is responsible for the investigation of alleged war criminals in Australia where a legal jurisdiction exists. The AFP treats all allegations of war crimes, genocide and crimes against humanity seriously. If such a matter is referred to the AFP, it is rated as Essential-High under the AFP Case Categorisation and Prioritisation Model (CCPM). DIAC has a special unit dedicated to screening war criminals which relies on a wide range of sources including its Movement Alert List, international tribunals and Interpol. DIAC refers any allegations about persons in Australia being involved in human rights violations to the AFP and other relevant authorities for further investigation. The AFP does not disclose requests for operational material.

(3)   There are no specific AFP guidelines relating to the investigation of war crimes alleged to have been committed prior to 2002. However, the Geneva Conventions Act 1957 (Cth) gives Australian authorities the ability to prosecute ‘grave breaches’ of the 1949 Geneva Conventions and Additional Protocol 1 of 1977 when those acts are committed in the course of an international armed conflict. Standard internal guidelines and operating procedures are applied in all investigations undertaken by the AFP, including war crimes investigations.

(4)   The AFP investigates potential war crimes, crimes against humanity and genocide where there is jurisdiction to prosecute the alleged offence under Australian law. The Geneva Conventions Act 1957 (Cth), which until 2002 criminalised grave breaches of the 1949 Geneva Conventions and Additional Protocol I, regardless of where they were committed or by whom, does not apply to non-international armed conflicts. However, there is Australian jurisdiction to prosecute offences committed in non-international armed conflicts before 2002, including under the Crimes (Torture) Act 1988 (Cth), which criminalises acts of torture committed outside Australia by a public official or a person acting in an official capacity or at the instigation of such a person after 14 February 1989 and the Crimes (Hostages) Act 1989 (Cth), which criminalises hostage taking in Australia or overseas after 20 June 1990.

(5)   Under Australia’s legislative framework, the AFP has the ability to investigate Australian citizens, residents and persons present in Australia, including visitors to Australia.

(6) (a)   AFP members attend a war crimes investigators course held by the Institute for International Criminal Investigations based in the Netherlands. Members are selected for this training on the basis of organisational needs. (b) No.

(c)   Two AFP members have attended recent training courses in the Netherlands and one AFP member is currently undergoing this training. Five AFP members have also had experience working within the International Criminal Tribunal for the Former Yugoslavia located in The Hague, the Netherlands, for periods of twelve months to five years. Those investigators who undertook those roles have in turn provided instruction to a number of internal AFP training courses.

(7)  

(a)   The Economic and Special Operations function is divided into two major streams: Economic Operations and Special Operations. The Economic Operations stream delivers a Commonwealth law enforcement response to instances of serious and complex financial criminality, money laundering and intellectual property crime, as well as providing investigative support for Commonwealth agencies involved in fraud prevention. The Special Operations stream delivers a law enforcement response to a range of Commonwealth offences, including war crimes, currency crime, corruption and bribery of foreign officials, special references from the Australian Government, identity crime, environmental crime, family law and emerging crime. The Special Operations stream also provides a National Missing Persons Coordination Centre.

(b)   The AFP has a flexible teams approach to operations. A number of teams may be investigating war crimes-type offences at any time and in a number of geographical locations, depending on the number of matters referred to the AFP.

(c)   The AFP deploys staff flexibly based on operational priorities and therefore staffing levels and tenure fluctuates.

(d)   As indicated in (c), tenure fluctuates. However, the average length of time an AFP officer remains in the Economic and Special Operations portfolio is two years.

(8)  

(a)   In the past ten years, 176 individuals and one corporation were the subject of twenty-nine investigations undertaken by the AFP in relation to the referenced offences. Some investigations undertaken by the AFP had multiple individuals listed as suspects.

(b)   One matter was referred by a private citizen, one by a law firm, one by the Australian Defence Force, one by the Department of Foreign Affairs and Trade, four by the Attorney-General’s Department (AGD) and twenty one by DIAC.

(c)   The AFP referred preliminary material to the Commonwealth Director of Public Prosecutions (CDPP) on one of the twenty-nine matters. However, this material did not amount to a formal brief of evidence.

(9)   Details of a suspect have been passed to an International Criminal Tribunal as the person was identified as a potential witness for matters that may have been of interest to the Tribunal.

(10)   No.

(11)   No.

(12)   The legislative basis for a possible prosecution under Australian law in relation to the deaths of the five men is by virtue of Section 7 of the Geneva Conventions Act 1957. It would not be appropriate to comment further on this matter, as this would involve disclosing the content of legal advice

(13)   Australia has an established framework for protecting the Australian community from the perpetrators of war crimes, crimes against humanity and genocide and for ensuring that they are brought to justice. This framework is based on three pillars: border security, domestic investigation and prosecution and international crime cooperation. The framework is primarily directed at ensuring perpetrators are properly investigated and prosecuted and also aims to protect the Australian community from the most serious of criminals.

(14)   There are a number of significant issues that would need to be addressed before such amendments could be considered. Even if retrospective legislation were to be introduced to the extent permitted under the International Covenant on Civil and Political Rights (ICCPR), it may not be possible under international law to legislate comprehensively to enable prosecution of all suspected war criminals. While retrospective war crimes offences can be enacted, it is generally not appropriate to punish people for conduct which was not a crime at the time it was committed. In addition, retrospective offences do not cure the practical obstacles faced during the investigation and prosecution of war crimes offences.