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Thursday, 26 September 2002
Page: 5016

Senator GREIG (3:43 PM) —I move:

That the Senate take note of the document.

I acknowledge and welcome the report tabled today by the government, although I express some disappointment in it. As it happens, the inquiry which led to Humanity diminished: the crime of genocide—inquiry into the Anti-Genocide Bill 1999 was based on a private member's bill which I tabled in that year and which went through a long and exhaustive process in the Senate's Legal and Constitutional References Committee. The committee held hearings in a number of cities around the country. I would like to pay tribute to now retired Senators McKiernan and Cooney, who also played a key role in the investigation and reporting of this.

In recent weeks we have seen the government acknowledge and sign on to the International Criminal Court. I welcome that. I spoke on it yesterday, as did other senators, in a different context. I think it is fair to say that part of the momentum towards that and towards the Australian government being comfortable with it came about through early discussions we had, as a chamber and as a parliament, on the Anti-Genocide Bill 1999 [2002]. The time of its introduction, although this was not intended, coincided with the incidents involving Mr Konrad Kalejs. Those events showed how we as a country were— or, more importantly, were not—dealing with that.

As it happened there was considerable community and international discussion and debate around the question of Mr Kalejs, who was alleged to have been involved in war crimes in Eastern Europe during the Second World War but who was then living in Melbourne. It came to light through the Simon Wiesenthal Foundation, amongst others, that there was the allegation that some 70 Nazi war criminals may have been continuing to live in the country. My concern and the concern of the Australian Democrats was: how do we respond to that in terms of appropriate natural justice and the investigation and potential prosecution of those people who are alleged to have been involved in war crimes?

What we learnt in part was that the existing War Crimes Act was ineffective in dealing with, and responding to, those allegations because it was quarantined not just to the years 1939-1945 but also to European theatres of war. It also came to light during the investigation into this issue that, as we now understand, potentially there are war criminals or—to use better phraseology—people allegedly involved in crimes against humanity from different theatres of war or, indeed, places that were not theatres of war but places of conflict. We are talking about Rwanda, Cambodia and the former Yugoslavia. In one instance we saw evidence of a Cambodian woman now living in Melbourne, I think, who came face to face with a former member of the military from her country who, she believes, slaughtered her family. Yet we as a country until very recently had absolutely no mechanism to deal with that because of the narrowness of scope of the War Crimes Act.

In framing and presenting my private member's bill, I explored the option, amongst other things, of expanding the definitions of those categories of people who might be subject to genocide simply in recognition of the fact that the definitions contained within the 1949 convention were framed at a time when not all factors were taken into account. We know subsequently that through war crimes, crimes against humanity and genocide there have been other sectors of the community that have been subject to these kinds of atrocities. They include women, they include people with disabilities, they include gay and lesbian people and they include people on the basis of their political or union affiliation in some cases. So I was very keen to explore that in the scope of the bill.

I note from the government's response tabled today that it does not agree with that and argues against it, saying that the original definitions ought to be adhered to. I argued through the committee process, as I do again today, that the expanded definitions are appropriate. We heard evidence from legal bodies and legal individuals who argued that, given the evolutionary nature of the process of international law, under current circumstances the expanded definitions would indeed fit within the appropriate models that would be needed to address these issues. Of course since then we have seen the government sign on to the International Criminal Court, which in many ways has superseded what I was trying to achieve in 1999 with the anti-genocide legislation. I would express again, though, my concern about the possibility of the government entering into an article 98 agreement to ensure that under American insistence—so it seems—American citizens would be exempt from investigation and prosecution under that process.

I would again express my disappointment, as I did in my minority report, at the way in which the Attorney-General's Department engaged with this committee or, more importantly, did not engage. We sought input repeatedly from the Attorney-General's Department, and on the only occasion that it did engage with the committee it sent the wrong officers to the hearing in Melbourne. That was very disappointing. One of the majority recommendations, which I did not agree with, in the report was that a period of some three months be offered to the Attorney-General's Department for its input. Here it is today, two years later!

I would like to thank the many people and organisations who came before the references committee and who presented both written and oral evidence. There was extraordinary community debate generated around Australia, particularly on the issue of retrospectivity. The bill, as I drafted it, was not retrospective; it would only be prospective and its jurisdiction would only be progressive. There was fear from some individuals and some sections of the community that it might be retrospective, although we made it very clear that it was not. I note in the tabling of the government's report today that it agrees that it ought not be retrospective. Part of the fear of retrospectivity came from people who felt that if the bill had been implemented it may have been accessed by Indigenous people to make claims of genocide against the government or previous governments for issues such as the stolen generations. That clearly was not the case or the intention but it generated some necessary and, I think in some cases, cathartic debate around that issue.

Two years after the introduction of the private member's bill, after thorough committee discussion and debate around it, and after the bill has been superseded by the International Criminal Court—which I welcome—we now have today the government's response. It continues to argue against the expanded definitions, which I do not agree with. It continues to endorse the notion of non-retrospectivity, which I do agree with. If nothing else, what I take some pride in is the discussion and debate we had around this— not here in the chamber, because we did not have that debate in the chamber, but through the committee process—in the community. The discussion teased out some terrific issues, some wonderful debate, particularly exposing the inadequacies of the War Crimes Act. We also heard about the aspirations of the community in terms of what they wanted to see in better legislation. In many ways that has now been brought about through our adherence to the International Criminal Court.

I acknowledge the government's report today. I express again my disappointment of its opposition to expanded definitions. I think we can fairly say that the bill, as it stands and as it was originally intended, was a catalyst for what has been ultimately international law reform in this area. I acknowledge and compliment Minister Downer and the government for bringing the International Criminal Court to fruition and final ratification.

Question agreed to.