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Wednesday, 26 June 2002
Page: 2717


Senator VANSTONE (Minister for Family and Community Services and Minister Assisting the Prime Minister for the Status of Women) (5:44 PM) —I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows

INTERNATIONAL CRIMINAL COURT BILL 2002

I am pleased to introduce the International Criminal Court Bill 2002 and the International Criminal Court (Consequential Amendments) Bill 2002 in due course.

The purpose of the International Criminal Court Bill 2002 is to establish procedures in our domestic law that fulfil Australia's obligations under the International Criminal Court statute, such as the obligation to cooperate with investigations of the court.

The International Criminal Court (Consequential Amendments) Bill 2002 makes a series of amendments to various Commonwealth acts for the proper operation of the International Criminal Court Bill 2002 and Australia's obligations under the statute.

The most significant of these are the amendments to the Criminal Code Act 1995, which enact the crimes punishable by the International Criminal Court as crimes in Australian law.

The past decade has seen many atrocities committed in armed conflicts. While this violence is not new, there has been an increasing belief around the world that the individuals who perpetrate and plan such violence cannot be allowed to go unpunished. The primary responsibility to bring to justice the perpetrators of such crimes has always been and will always be with domestic courts.

Unfortunately, on occasions, the domestic courts of certain countries have been unable or unwilling to bring the perpetrators of the most serious international crimes to justice.

This saw the international community resolve that the appalling acts of the Second World War should not go unpunished. The creation of the Nuremberg Tribunal was the first action towards international accountability for the most serious international crimes. Similarly, the horrific atrocities committed in Rwanda and the former Yugoslavia saw the United Nations Security Council create ad hoc criminal tribunals to deal with crimes committed in the former Yugoslavia and Rwanda.

But the creation of an ad hoc tribunal after the fact to try suspects is not always the best way to deal with such tragedies. It can be slow, it can be complicated, it can be costly and, as it is only created after the event, it has no capacity to deter the perpetrators of such crimes and can lead to allegations of victors' justice. After years of preparatory negotiations, 162 nations gathered in Rome in 1998 to finalise and adopt a statue for a permanent International Criminal Court—a court that could bring to justice the perpetrators of the most serious international crimes when national jurisdictions were either unwilling or unable to do so.

A statute was adopted at the Rome diplomatic conference by a vote of 120 in favour, seven against, with 21 abstentions. Australia signed the statute on 9 December 1998 and is one of 139 states which signed during the period up to 31 December 2000 when the statute was open for signature. The ratification of the International Criminal Court statute has come quickly, underscoring the wide-spread support for the statute in the international community. The statute required 60 ratifications before it would enter into force. Ten states ratified the statute at a special ceremony on 11 April this year, bringing the total number of ratifications to 66. Another three states have ratified since, making a total of 69 to date, and the statute will enter into force on 1 July 2002.

Australia is delighted that the overwhelming majority of the international community have given their assent to the court. In keeping with the processes adopted by this government in 1996, the ICC statute has been the subject of detailed scrutiny by the Joint Standing Committee on Treaties. The committee also considered exposure drafts of these two bills. I would like to thank the committee and its secretariat for their excellent work in examining Australia's proposed ratification and exposure drafts of these bills.

After an inquiry lasting over 18 months and considering over 250 submissions, the committee tabled its report in this parliament on 14 May 2002.

The committee recommended that the government ratify the statute and introduce the legislation as soon as practicable. These recommendations endorsing ratification of the statute were subject to a number of further recommendations. The committee recommended that the government strengthen its statement of the principle of complementarity in the legislation, which has been done. The committee recommended that the government review certain definitions of crimes, particularly the definition of rape, which has been done. The committee recommended that the government make a declaration when it ratifies the statute, which will be done. The committee recommended that the government closely monitor the operations of the International Criminal Court and report on these operations annually to parliament. These reports will allow the government and the parliament to ensure that the operation of the International Criminal Court and the way in which its jurisprudence develops remain in Australia's national interests.

The government has embraced this recommendation in clause 189 of the International Criminal Court Bill. In addition to the committee's recommendations and reporting process, Australia's proposed ratification has been the subject of rigorous debate in the government's joint party meeting, where over 70 members and senators spoke on the issue as well personal consultations by the Prime Minister with relevant stakeholders.

This process of consultation has resulted in improvements being made to the domestic implementing legislation, including those detailed above. Australia has a direct national interest in the establishment of a permanent International Criminal Court based on the role the court will play in enhancing international peace and security, including in our immediate region. The court's establishment has been one of the government's prime human rights objectives. The commission of serious international crimes poses a threat not only to individual countries but to the international community as a whole, and the court will deter individuals from committing these crimes. The International Criminal Court will have jurisdiction over only the most serious crimes of concern to the international community; namely, genocide, crimes against humanity and war crimes.

It is important to recognise that the court will have jurisdiction only over crimes committed after it enters into force, on 1 July 2002, and likewise the crimes created under Australian law will apply only to conduct after the International Criminal Court (Consequential Amendments) Bill commences.

The court will also have jurisdiction over the crime of aggression when an acceptable definition of the crime can be agreed. If the statute is amended to include the crime of aggression, a state party may decline to accept it, in which case the court may not exercise jurisdiction over it in respect of nationals of that state or in respect of crimes committed in that state's territory. The government has decided that, if a definition of the crime of aggression is adopted that is unacceptable to Australia, we would decline to accept it, as is allowed under the statute. The court will not replace national courts but be complementary to them. This means that it cannot act except when national jurisdictions are unwilling or unable genuinely to investigate and prosecute.

A fundamental element of the International Criminal Court statute is its recognition that it is the primary duty of every state to exercise its national criminal jurisdiction over these crimes.

The principle that the International Criminal Court does not replace, or stand above, national courts is reflected in clause 3 of the International Criminal Court Bill, which reiterates that the International Criminal Court Act `does not affect the primacy of Australia's right to exercise its jurisdiction with respect to crimes within the jurisdiction of the ICC.

This clause reflects a recommendation made by the Joint Standing Committee on Treaties. The International Criminal Court (Consequential Amendments) Bill makes every crime under the International Criminal Court statute also a crime under Australian law. This means that Australia will always have the option of prosecuting persons under Australian law rather than surrendering them to the International Criminal Court. In these circumstances, it is most unlikely that it would ever act in a case which could be dealt with by Australia. The International Criminal Court (Consequential Amendments) Bill also sets out the principle of complementarity in similar terms in clause 268.1, as recommended by the Joint Standing Committee on Treaties.

The principle of complementarity also means that the ICC is not part of any domestic judicial system. It only operates when the domestic systems fail. The ICC will have no authority over any Australian court and in particular will not become part of the Australian court system and will have no power to override decisions of the High Court or any other Australian court. As mentioned, the government has included in the bills a number of measures designed to afford further protection of Australia's national interests. The government has decided that Australia's ratification will be accompanied by a declaration which will indicate how Australia will practically give effect to the statute while fully adhering to our obligations. The declaration, as recommended by the Joint Standing Committee on Treaties, will reaffirm the primacy of Australian law and the Australian legal system.

To make this clear, the matters in the declaration have been incorporated in the legislation implementing our obligations under the International Criminal Court statute. The International Criminal Court Bill requires that the arrest of a person at the request of the ICC may not be authorised, nor may a person be surrendered to the ICC unless the Attorney-General has, in his or her absolute discretion, signed a certificate that it is appropriate to do so.

Decisions of the Attorney-General to issue or refuse to issue these certificates are final and may not be challenged in any court other than the High Court. In addition, the Attorney-General must consent before any person can be prosecuted for an offence under the crimes that will be inserted into division 268 of the Criminal Code by the International Criminal Court (Consequential Amendments) Bill. Again, decisions of the Attorney-General to give consent or to refuse to do so are final and may not be challenged in any court other than the High Court.

Australia retains comprehensive jurisdictional coverage over members of the Defence Force for crimes within the jurisdiction of the International Criminal Court wherever committed. The Defence Force Discipline Act 1982 enables the investigation and prosecution of Defence Force members for offences under the act committed any-where in the world. These offences include all those under the criminal law applying in the Jervis Bay territory. In addition, if the amendments to the Criminal Code contained in the International Criminal Court (Consequential Amendments) Bill 2002 are enacted, Australia will have primary jurisdictional coverage over all the crimes within the jurisdiction of the ICC, wherever committed.

This would enable Australia to take full advantage of the principle of complementarity in the ICC statute, under which Australia retains primacy of jurisdiction in cases in which we are willing and able to investigate and prosecute. The Defence Force is satisfied that, under this regime, the interests of its members are adequately protected. This was affirmed recently by both Admiral Barrie and Lieutenant General Cosgrove in their discussions with the Prime Minister.

There are numerous additional safeguards built into the several stages of an investigation and prosecution. The ICC prosecutor is subject to onerous duties designed to ensure that the provisions in the statute are observed. The role of the prosecutor is subject to the scrutiny of the court at all relevant stages. States must be informed when investigations are commenced, and they have the right to challenge the court's jurisdiction. The safeguards, and the rights to challenge, ensure that politically motivated prosecutions could not take place.

Action before the court may be commenced in any of three ways. These are: referral by a state party, referral by the United Nations Security Council acting under chapter 7 of the United Nations Charter, or by the initiative of the prosecutor. In the last mentioned case, the prosecutor's capacity is subject to the authorisation of the pre-trial chamber of the court.

In the case of state party referrals or cases initiated by the prosecutor, the court may only act if either the state on whose territory the conduct occurred or the state of nationality of the accused is a state party, or, if not a state party, either of these states has accepted the jurisdiction of the court. The court's statute sets out its principles of criminal law and the trial process that it will follow. It is not an exhaustive code and would be supplemented by rules of procedure and evidence and, once the court becomes operational, by the court's own decisions.

The principles are drawn from the major legal systems around the world. The trial process and the protections for defendants are very similar to the common law procedures that we have in Australia.

The court will provide due process and fair trials for those brought before it. The standards embodied in major human rights instruments are incorporated in the statute. In particular, persons before the court are entitled to be presumed innocent until proven guilty; they have the right to silence; the onus is on the prosecution to prove guilt; and the court must be convinced of guilt beyond a reasonable doubt. The court can impose imprisonment for up to life for serious cases.

It may not impose the death penalty. It may order fines and forfeitures of the proceeds of crime and is also empowered to order a convicted person to make reparation to victims. The International Criminal Court Bill 2002 sets out the procedures to allow Australia to cooperate with the International Criminal Court in its investigations and prosecutions.

These procedures are based on the tried and tested procedures that have allowed Australia to cooperate with the International Criminal Tribunal for the former Yugoslavia and strike a careful balance between fulfilling Australia's international obligations and protecting Australia's national interests and Australian citizens.

Part 2 sets out the general principles for dealing with requests for cooperation from the International Criminal Court. Obviously, these provisions must be read in conjunction with the Attorney-General's absolute discretion as to whether to issue a certificate enabling the, arrest and surrender of a person at the request of the ICC.

Part 3 deals specifically with the procedures if the ICC asks Australia to arrest and surrender a person for trial. Part 4 sets out the procedures for providing other forms of assistance to the ICC in great detail. Such assistance could include taking evidence in Australia, serving documents, facilitating the attendance of witnesses to give evidence or examining places. Division 14 of part 4, along with part 11, allows the procedures for the tracing, freezing and forfeiture of proceeds of crime that are provided for in the Proceeds of Crime Bill 2002 to be used against the proceeds of genocide, crimes against humanity or war crimes, in response to a request from the ICC.

Part 5 allows the prosecutor to conduct investigations in Australia and the court to sit in Australia. Part 6 deals with the powers of search and arrest in executing a request for cooperation from the ICC.

These powers are the same as the powers that the Australian Federal Police have under domestic law. Parts 7 and 8 limit the disclosure of information by Australia to the ICC where that information raises national security issues or has been provided to Australia in confidence by a third party.

If a request from the ICC cannot be carried out without prejudicing Australia's national security interests, then the Attorney-General can refuse to authorise that request. Part 9 establishes procedures for transporting a person to or from the ICC through Australia. Any such transportation is still subject to the requirement in section 42 of the Migration Act 1958 for the person to have a valid visa. Parts 10, 11 and 12 allow Australia to cooperate in enforcing sentences imposed by the ICC. Part 10 allows Australia to enforce relevant fines or reparation orders made by the court. Part 11 allows Australia to enforce a forfeiture of order in a similar way to which foreign orders are enforced under the Proceeds of Crime Act 1987.

Part 12 establishes procedures that will allow prisoners from the ICC to serve their sentences in Australia, if Australia chooses to accept those prisoners. Part 13 allows Australia to request that the ICC assist Australia in the domestic investigation or prosecution of an indictable offence, which would include a crime of genocide, crimes against humanity or war crimes. Part 14 contains a number of miscellaneous matters, including the obligation for the government to table an annual report on the operation of the International Criminal Court Act, the operation of the court and the impact of the court on Australia's legal system. Once tabled, the parliament can refer the report to its committees for further examination if required. This report, to be prepared by the relevant departments, including the Department of Foreign Affairs and Trade, the Department of Defence and the Attorney-General's Department, will allow the government and the parliament to monitor the activities and jurisprudence of the ICC to ensure that they do not develop contrary to Australia's national interest.

In conclusion, the International Criminal Court represents the international community's determination to put an end to impunity for the perpetrators of the world's most serious crimes. Australia has a hard-won reputation as a champion of human rights and should throw its weight behind a court that will bring to justice the perpetrators of the most heinous international crimes.

This legislation will pave the way for Australia to join in that endeavour.

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INTERNATIONAL CRIMINAL COURT (CONSEQUENTIAL AMENDMENTS) BILL 2002

The main purpose of the International Criminal Court (Consequential Amendments) Bill 2002 is to create, as offences against the criminal law of Australia, each of the offences over which the International Criminal Court has jurisdiction— genocide, crimes against humanity and war crimes.

Many of these crimes are already crimes in Australia. For instance, Australia has specifically recognised grave breaches of the Geneva Conventions and Additional Protocol I as crimes in the Geneva Conventions Act 1957. Australia can also already prosecute members of our Defence Force for crimes committed in the course of their duty anywhere in the world.

However it is important that Australia enact laws specifically covering all of the crimes in the International Criminal Court Statute so that we can take full advantage of the principle and protection of complementarity. By enacting these crimes, Australia can be sure that we will be able to investigate and prosecute under Australian law persons accused of crimes within the jurisdiction of the International Criminal Court. These offences apply regardless of whether the conduct occurred in Australia or not, and regardless of whether the person is an Australian citizen or not. In this way, Australia can never become a safe haven for the perpetrators of the most serious international crimes.

While these crimes cover the same acts as the International Criminal Court Statute, they are part of Australia's criminal law and they have been defined according to the same principles, and with the same precision, as other Commonwealth criminal laws.

These Bills are expected to have little direct impact on Commonwealth expenditure or revenue.

There will be some resource implications for Commonwealth agencies, such at the Australian Federal Police, Commonwealth Director of Public Prosecutions and Attorney-General's Department in providing cooperation and assistance to the Court. However these costs will depend on how much assistance the Court requires of Australia in its investigations and prosecutions. In the unlikely event that the Court ever conducts hearings in Australia, there would be further costs involved.

The Court is funded by the States that are party to the Statute. All States that have ratified the Statute, including Australia once it becomes a party, will make annual assessed contributions to the Court's running costs in accordance with the scale adopted by the United Nations for its regular budget. It is estimated that, initially, Australia's annual contribution to the Court will be approximately $2.0M, with that amount likely to reduce in time as more states become parties.

The Government believes that the establishment of the International Criminal Court is an important development to ensure that those who commit the most egregious crimes against humanity are brought to justice. It is clearly in Australia's national interest to be part of this important international effort to deter and punish those who commit atrocities.

Debate (on motion by Senator Crossin) adjourned.