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Thursday, 26 September 2002
Page: 5015

Senator IAN CAMPBELL (Manager of Government Business in the Senate) (3:42 PM) —I present the government's response to the report of the Legal and Constitutional References Committee entitled Humanity diminished: the crime of genocide—inquiry into the Anti-Genocide Bill 1999, and I seek leave to incorporate the document in Hansard.

Leave granted.

The document read as follows




Recommendation 1

The Committee recommends that the Parliament formally recognise the need for anti-genocide laws


Noted. On 27 June 2002 the Parliament passed and assent was given to the International Criminal Court (Consequential Amendments) Act 2002. This Act inserts Division 268 into the Criminal Code. Subdivision B of Division 268 (sections 268.3 to 268.7) creates five offences of genocide, which effectively criminalise in Australian law the acts characterised as genocide in the Convention for the Prevention and Punishment of the Crime of Genocide (`the Genocide Convention').

Recommendation 2

The Committee recommends that the Bill be referred to the Attorney-General for consideration of the matters identified by the Committee in respect of its contents, and that the Attorney-General report his findings to the Parliament by 5 October 2000


Noted. The Government has considered the matters identified in the Committee's report, and makes comments on the following specific matters.

The Government notes that the Anti-Genocide Bill 1999 (`the Bill') would depart from the definition of genocide in the Genocide Convention. The Government believes that the definition in Australian legislation should accord with that contained in the Genocide Convention. The definition of genocide from the Genocide Convention has been included in Subdivision B of Division 268 of the Criminal Code. Accordingly, the Government does not support the varied definition of genocide contained in the Bill.

It is also questionable whether the enactment of the varied definition would be a lawful exercise of the external affairs power under section 51 (xxix) of the Constitution.

The Government notes that, although some variations in the manner of implementation of the Genocide Convention in the domestic laws of other countries are evident, the Committee received no evidence of the adoption by any country of the varied definition of genocide proposed in the Bill.

The Bill does not provide for its retrospective operation. However, the Government notes that the Committee was required by its terms of reference to consider the appropriateness of the retrospective application of the Bill. The Government also notes that, in his additional comments in the Committee's report, Senator Greig states that the Australian Democrats support the retrospective application of anti-genocide legislation.

Legislation creating criminal offences does not normally apply retrospectively. It is well established that criminal liability should not be imposed on a person for an act or omission that was committed at a time when such conduct did not constitute a criminal offence.

There is no justification for departing from normal principles in this case.

Practical difficulties can also be encountered in applying legislation retrospectively. For example, it can be difficult to adduce evidence in prosecutions for offences which occurred many years ago.

Accordingly, the Government does not support the retrospective operation of an offence of genocide in Australian law. Subdivision B of Division 268 of the Criminal Code has no retrospective application.