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LEGAL AND CONSTITUTIONAL REFERENCES COMMITTEE
12/05/2000
Anti-Genocide Bill 1999

CHAIR —I welcome the representatives from Amnesty International. The committee has received the submission from Amnesty International. We have published it and numbered it No. 7 in our list of submissions we have received to this inquiry. Are there any amendments or alterations you wish to make to that submission?

Mr Hogan —No.

CHAIR —I now invite you to make a short opening statement. At the conclusion of your remarks, I will invite members of the committee to address questions to you.

Mr Hogan —Thank you, Chair. On behalf of Amnesty International, I would like to thank the committee for asking Amnesty to appear before you today on this very vital issue— namely, the extent to which Australia gives effect to the genocide convention and whether the current bill will give effect to Australia's obligations under international law, including both treaty obligations and calls for international law obligations. I would also like to say it is a pleasure to be before the committee again.

You should have before you our submission paper. I will make a brief opening statement and then we will be happy to answer any questions you might have. The committee will note that in our submission we have questioned why Australia has not incorporated the genocide convention into domestic law. The crime of genocide is a part of customary international law and an obligation in all states since 1948 when the General Assembly of the UN declared that it was an international crime.

We would also like to recommend that the committee examine whether the current bill does not present a unique opportunity for Australia to incorporate both crimes against humanity and war crimes into its domestic law. This would seem a sensible proposition in so far as Australia would then be well placed to meet its obligations under the 1998 Rome Statute of the International Criminal Court when that statute takes effect. We note in that context that Australia has signed but not yet ratified that statute. We urge Australia to take that step as soon as possible.

War crimes which have been recognised as providing individual criminal responsibility as a matter of international law at least since 1945 include violations of the laws of war, crimes against peace and crimes against humanity. Crimes against humanity extend beyond war crimes and include the most serious forms of criminal conduct, such as murder, extermination and the forceful deportation of entire populations. Amnesty International's approach in this respect is to push for full recognition by the international community that the most serious violations of human rights form part of the criminal code of states and that the fight against impunity sees the violators of human rights brought to justice.

Human rights are universal and indivisible and benefit all individuals, regardless of their status. In this respect, the prohibition of the crime of genocide applies to everyone, including where the crime is perpetrated against individuals on grounds of sexual orientation. We have taken note of the suggested amendments to the Anti-Genocide Bill on the grounds of gender, sexual orientation, political affiliation and disability. I can see no difficulty with including these grounds explicitly in the bill along similar grounds as have been suggested to broaden the offences to include crimes against humanity and war crimes. However, the categorisation of different types of population must not be done to the exclusion of any identifiable group.

We agree with HREOC's suggestion that the term `as such' be retained. To remove it would negate the purpose of the convention. If this clause were deleted, Australia would not be fully implementing the convention and would be requiring a higher standard of destruction of all members of a group.

Amnesty International does not have a position on whether the stolen children issue is a genocide concern, but we do note that HREOC's findings in the 1997 report have gone unanswered. We also note, outside the genocide concern issue, the serious human rights violations identified in the commission's 1997 report, including racially discrimination legislation and practices after 1945, the date the UN Charter clearly outlined the prohibition of discrimination on grounds of race. As stated, the government has repeatedly failed to respond to the commission's 1997 report in this respect and its findings. This needs to happen as a matter of urgency in our view. Clearly, the government needs to explain its position not only on genocide but also on other human rights violations identified by the commission concerning those children forcibly removed from their families.

We feel that consideration should be given as to whether the bill should be retrospective. Although there is a presumption in the criminal law regarding non-retrospectivity of crimes, the fact is that this is customary international law since the General Assembly resolution of 11 December 1948 introduced an obligation in all states to outlaw the crime of genocide. We note that Australian ratification came into effect 12 January 1951.

We also contend that, if the offences of crimes against humanity and war crimes are introduced into the bill, these obligations of customary international law will properly be reflected in Australian law. I would also like to table for the committee, Amnesty International's March 1998 report, Australia's silence in human rights: government response to stolen children inquiry.

CHAIR —Thank you very much.

Senator COONEY —Would Amnesty International be in agreement with section 11 of the War Crimes Act 1945 as originally existed?

Mr Hogan —Could you remind me of the provisions in that, Senator?

Senator COONEY —I will show you that rather than read it out to you.

Mr Hogan —Thank you.

Senator COONEY —It brings a shock to you.

Mr Hogan —I should know it off by heart, of course.

Senator COONEY —Of course.

Mr Hogan —No, not the death penalty. I think that is quite clear.

Senator COONEY —It is horrifying to read, isn't it?

Mr Hogan —It is. Obviously, we do not agree with the death penalty.

Senator COONEY —I should say that when you get to the War Crimes Amendment Bill 1987, which says that the punishment for an offence against this and an act involving a wilful killing of a person is imprisonment for life or for any lesser term, that fits a bit more easily.

Mr Hogan —That is a bit more appropriate, Senator.

Senator COONEY —I do not know if you have had any thoughts about this, but it seems to me that one problem arises when we talk about genocide and expand the definition—which you might or might not agree with—and then visit that with one penalty. So there was a reason behind my going through that issue of penalty. Where the penalty provided for in this amendment is imprisonment for life or, I think, the lesser one in alternative verdicts of 14 years—I cannot pick it up at the moment—it is an either/or situation. Has Amnesty International had any thoughts about that? If you look at the Crimes Act in any state, you would say that you have murder, homicide and wounding with intent—all those things. What we seem to be doing with the genocide issue is proposing a particular proposition and saying that that ought to be visited with life imprisonment. If you look at the Holocaust or Armenia or something like that, people will say, `There is no argument about that'—and properly so, I think—but then you get into other situations where you wonder a bit. For example, in Yugoslavia, where there is an equality of forces in some ways and it is terribly bad that racial hatred is causing people to have a go at each other, it is not quite like the Holocaust. Have you had any thoughts about that: whether there ought not to be a wider range of penalties and a wider range of crimes which you might list? You have a crimes act and then you follow down that with a series of offences. Perhaps you could have a genocide act and follow that down with whole series of offences.

Mr Hogan —Clearly, it depends upon what the guilty verdict would be. Amnesty International does not stipulate life imprisonment. We say that the punishment should fit the crime. But at the same time there would seem to be a difference between somebody who was organising this from a general's position in some form of conflict or system and somebody who might have closed their eyes to it while delivering supplies. It depends on the circumstances of the case, and obviously a judge would need to have discretion in that. We would say that genocide would be the most serious form of offence in terms of the criminal code.

Senator COONEY —If you look at the definition you have here—just bear with me here; I will be quick—it says `causing serious bodily harm or mental harm to members of the group'. That could almost amount to the situation that probably happened in Australia in the 1940s and 1950s where, if you came from overseas, you were considered to be a lesser citizen and treated differently. Under this definition, that would fit.

Mr Hogan —I suppose it all depends upon whether it is discrimination or persecution—the level of intensity and the purpose, et cetera. Genocide is a very serious crime. I would also imagine that, in prosecuting or indicting people, the indictment will have to match the alleged offence. If it was treating people badly or being neglectful or this or that, it might come under a different form of the criminal code. It all depends upon whether or not it matches the definition.

Senator COONEY —You asked why Australia has not introduced legislation that takes the 1949 act a bit further. One of the reasons might well be that these are the sorts of issues that you can work through.

Mr Hogan —They certainly are. One of the main points we would make is that Australia cannot extradite somebody for a non-extraditable offence. If genocide is not a crime here, how can you, unless you invoke universal jurisdiction? Similarly, if somebody comes to Australia who is accused of war crimes, crimes against humanity or genocide, can you prosecute them here? We have parallels now with the Pinochet case, if you want, and the question is: how far will Australia go?

Senator COONEY —The other problem is looking into your own history—either Australian history or ally history—and at what has been done in particular cases with issues like Dresden, if you like. What do you do about those?

Mr Hogan —Sorry, Senator?

Senator COONEY —Dresden was the city that was bombed right at the end of the war—1939 to 1945.

Mr Hogan —Do you mean in terms of whether that was—

Senator COONEY —People get a bit worried that if you go too far into it, that is it. The Holocaust is so clear that you can have no doubt. The business in Armenia was as clear as you would like as well. But once you get past those very definite and clear issues or instances, it starts getting a bit worrying for people.

Mr Hogan —It might, except if you ground it in human rights. Many in the NGO communities, as well as in the international community, are worrying about what happened in Rwanda: how it was not prevented and how even the ongoing mass killings that have happened since the genocide, if you want, in Rwanda, could have occurred. To us in Amnesty International, this principle is not grounded enough in international law and practice. If you just qualify it as being the Armenian genocide or the Holocaust, it is almost a distancing device as well. I think if you do ground it in fundamental human rights, you will find that more people will probably come with you.

Senator COONEY —So you would say that human history has now developed and that, with modern communications, with the United Nations forces and what have you and with some sort of tribunals, in any event the time has arrived where you can sensibly look at genocide as it is committed and do something about it.

Mr Hogan —I think prevention is the key, but in our view the fight against impunity is a long-term fight which obviously will mean that nobody can do something and get away with it. You will see a knock-on effect. I think the Pinochet case will reverberate for many years to come. We are already seeing other leaders of undemocratic regimes, let us say, who are cancelling flights to certain countries because they are afraid they will be arrested. When that is happening and when somebody is being confined to their own state, they will be asking themselves whether they are willing to live the rest of their life in that state and whether they will be able to cling to power. From our point of view, it is almost like a kind of encircling ring upon the violators of human rights.

Senator COONEY —Thanks very much, Mr Hogan.

Senator PAYNE —Mr Hogan, I think you said in your opening remarks that Amnesty saw no difficulty in the bill's intention to slightly expand the definition of groups based on gender, sexuality, political affiliation or disability unless that categorisation may have the effect of excluding others. Do you think it would have that effect?

Mr Hogan —I do not necessarily think so. If the word `including' is in there, it is obviously non-exclusive. Our view is that those principles should possibly go in as being clear statements that the range of offences includes persecution of those people in those areas, but working from the universal declaration as well and making sure that no identifiable group is excluded. We do not have that strong a position either way, but the more inclusive human rights protections are the better, in our view.

Senator PAYNE —Do you think that, in expanding the convention definition, there would be any problems with regard to international cooperation in that process for Australia if we were to go down that road?

Mr Hogan —Do you mean in terms of those four?

Senator PAYNE —Yes.

Mr Hogan —I think they would be complementary. Again, with regard to the comments earlier about the racial discrimination and sexual discrimination acts, they would be complementary. I do not think there would be problems. If it is an extraditable offence in Australia, the person can be extradited but the indictment would have to happen overseas. If, however, somebody were to be prosecuted here for crimes committed overseas, and if those crimes involved an identifiable group and met `genocide', which is a very high test, that would be included in the convention as it already stands.

Senator GREIG —As an international organisation, I understand that the original brief of Amnesty was to deal with those in prison, prisoners of conscience and so on. I am wondering about those who have been charged with or who are being investigated for war crimes or genocidal acts. Is Amnesty satisfied that those people, who are subject to investigation and potential prosecution, within this act, or generically within anti-genocide legislation, have the right of the presumption of innocence guaranteed and the right to a fair trial and does this bill meet that?

Mr Hogan —There are two things here. Firstly, Amnesty will campaign to have the violators of human rights brought to justice. Once they are indicted, we will do everything we can to ensure they have a fair trial. We have a fair trials manual. Internationally you could say that the International Tribunal in Rwanda does have a lot of those safeguards. But we would have a lot of concerns about the Rwandan system of justice with thousands in appalling conditions in detention and whether they will be able to have international standards of fair trial. You can see that the crime might be the same but two different indictments or trials would be different. In terms of Australia, I do not think there would be a difficulty as long as the state ensured that everyone had at least the right to a proper legal defence if they could not afford it. Then, of course, the question of legal aid, or whatever, would come in. There should be a presumption of innocence. We would absolutely agree with that. There should never be a presumption of guilt. But that should not be inaction for indicting people who are clearly these sorts of violators.

Mr Hutchings —To add to that, in Rwanda there have been instances of release of people who were detained under suspicion of committing war crimes, crimes against humanity, and they were released. Notwithstanding our reservations about some of the detention conditions in Rwanda, they were released because there was insufficient evidence to hold them, which would tend to suggest that the presumption of innocence does exist.

Senator GREIG —Does Amnesty have a greater brief, an ongoing campaign, of encouraging nations to introduce anti-genocide legislation or similar?

Mr Hogan —Absolutely. One of our main pushes internationally now is the fight against impunity. All through the 1990s, you will see that Amnesty has successively campaigned for an International Criminal Court to replace the ad hoc tribunals that we had in Rwanda and Yugoslavia. The International Criminal Court's statute is now signed and needs 60 ratifications before it can come into effect. The International Criminal Court has some loopholes as a result of that universal jurisdiction which is being further strengthened by the Pinochet case. We would say that every country needs to ask itself one or two questions. Firstly, can we extradite this person to an international tribunal in another country where they are indicted? Secondly, where that country will not indict them, as in Chile in the Pinochet case, are we capable of prosecuting that person here? The offences would have to be offences of genocide, crimes against humanity and war crimes. The difficulty in Australia is that genocide is not an extraditable offence: you cannot extradite somebody overseas. And that is a particular difficulty. It also sends a mixed message. It is up to countries like Australia to lead the way in the international stage by saying that we are clear about this. Other countries need to be clear about this as well. Only when we have an international system that guarantees the presumption of innocence but is relentless in its pursuit of more serious violators of human rights can we see a knock-on effect 10 or 15 years down the line in many of these countries.

Senator GREIG —In a number of submissions, including yours, people have said that they do not have any particular difficulty with expanding the definitions to include, for example, gender, sexuality, disability, political affiliation. At the same time, they express concern that, in doing that, by defining groups and/or additional groups, they run the risk of potentially excluding some peoples or groups. Am I reading you right? Is that something you were indicating earlier?

Mr Hogan —As I responded to Senator Payne, we would express that concern to make sure that it would not happen; the drafters would also have to make sure. If the words were in there, I do not think that would necessarily exclude those people, but we need to be very careful.

Senator GREIG —I just wanted to make the point that the actual definition provided in the bill does list the groups but says, `but not limited to'. So it is open ended. Does that satisfy Amnesty?

Mr Hogan —That would seem to be pretty close to the mark.

Senator GREIG —Thank you.

CHAIR —The letter that you attached to your submission from the Office of the Attorney-General dated 15 September 1999 is interesting. In the third paragraph it says that the government does not believe that Australia is in breach of the convention. It goes on to say:

The common law and the criminal codes of the states and territories provide adequate punishment for acts identified by the Convention as genocidal and are sufficient to fulfil our international obligations in relation to the Convention.

Was that letter written before the decision was handed down in the Nulyarimma case? Are you aware of that? You mention the Nulyarimma case in number 16 of your submission.

Mr Hogan —Yes. I have to take that on notice. I am not absolutely certain about that. I apologise; I have to take that on notice.

CHAIR —All right. Perhaps you can address what you have put in your submission about the Nulyarimma decision where you state it was `held by a 2:1 majority that the offence was not known to Australian statute or common law.' That would now have to be, under the common law system of justice in Australia, the lead judgment on this matter. There is no other judgment?

Mr Hogan —No.

CHAIR —Are you aware of the matter being tested in any of the other jurisdictions around the country?

Mr Hogan —I am not. As far as I know, the full Federal Court decision on that case is probably definitive law. Of course, maybe the Attorney-General's Department could advise definitively on that.

CHAIR —We will be talking with them in Melbourne next week after an intervening trip to Perth for some of us. Are you aware of what is happening with that decision now? Have you heard of any possible appeals to the High Court or any other jurisdiction?

Mr Hogan —No, we have absolutely no information on it. Of course, the decision does leave the law in a bit of a lacuna there in terms of extraditable offences.

CHAIR —The committee has got some submissions that say there is going to be an appeal to the High Court and perhaps, because of that, the bill that we have got before the committee and before the parliament is premature. If there is an appeal to the High Court, would you accept that it might be premature discussing a bill of this nature at this particular point in time?

Mr Hogan —I do not think so. Our feeling would be that Australia signed this 50 years ago, it came into force in 1951 and really for another day to go by without its full implementation into domestic law is a difficulty. Certainly we would be very pleased if the High Court were to overturn that decision in terms of its more negative consequences. But at the same time, we think that legislation would be clear. Of course, it would be the parliament demonstrating the wishes of the people. The other thing is that, in terms of expanding it to war crimes or crimes against humanity, I am not sure how the application of that decision would be so expansive as to cover all those bases.

Senator LUDWIG —On a more general level, are you suggesting that all conventions that are signed or ratified by treaty should be then adopted and passed into domestic law?

Mr Hogan —I think as a general proposition that would be a beneficial thing. I do not think Australia does need to ratify everything to conform with its obligations under international law, but certainly, where customary international law is concerned, if you want the more fundamental norms of international law agreed between states and the international community, I think it is proper that states such as Australia should incorporate those treaty provisions.

Senator LUDWIG —That would include all of ICCPR?

Mr Hogan —Not necessarily. There is discussion whether all of the International Covenant on Civil and Political Rights is customary international law. The Universal Declaration of Human Rights is argued in some quarters to form customary international law, but whether all the provisions of the ICCPR do is a bit wider.

CHAIR —The matter that Senator Payne and Senator Greig have been talking about is the groups. I cannot recall you saying anything about the inclusion of the word `distinct'. Has that been put to you?

Mr Hogan —It has not been put to me.

CHAIR —It is different from what is included in the convention and is an addition to the convention. HREOC expressed a view to us this morning. Has Amnesty looked at that particular point?

Mr Hogan —We have not particularly addressed our minds to it. In terms of distinct group, we would really be interested in how it would look in practice and what would be meant by `distinct'. If it is an identifiable group, I would imagine that would suffice.

Senator LUDWIG —Have you read the submission by HREOC in respect of that issue.

Mr Hogan —I had a quick read through it, Senator.

Senator LUDWIG —Perhaps it is something you might like to have a think about and get back to us on, once having had an appreciation or a better view of the Human Rights and Equal Opportunity Commission's view about that word. It would be helpful if you could.

Mr Hogan —I could, yes.

CHAIR —I think it is important for further dialogue to have occurred about not limiting. The bill states:

genocide means any of the following acts committed with intent to destroy, in whole or in part, a distinct group of people including, but not limited to, a national and ethnical, racial or religious group, or a group based on gender, sexuality, political affiliation or disability:

Then it proceeds on. I think the words are of importance and one word is as important as it links with the other words. It would be appreciated if you could address your mind to that and let us know reasonably quickly.

Mr Hogan —Okay.

CHAIR —Thank you.

Senator COONEY —When you say that the various international treaties ought to be brought into Australian domestic law, I take it that you mean by that in conformity with the common law and the general law that operate in Australia. You do not want to do any violence to the way we go about things in Australia?

Mr Hogan —No, absolutely, they should be complementary. Australia is, like many common law jurisdictions, a dualist state, as opposed to say European countries like the Netherlands which is a monist state. In those states, international treaties that are ratified come directly into domestic law. So you could go to the Federal Court and plead a point of law from international law.

The other point is that Australia obviously appears before UN treaty committee bodies, but that is not quite the same thing as European countries, for example, that appear before the European Court of Human Rights because of binding judgments. It is very important that protection of human rights are fully protected in domestic law, so that we do not need to go to the UN committee treaties as well, we can deal with it here.

Senator COONEY —If you look at the various treaties like the International Covenant on Civil and Political Rights and the Convention Against Torture, they are all in accordance with the general philosophy and culture of Australia. It would be a good thing if you put those treaties into domestic law in conformity with the approach we already take.

Mr Hogan —I think so. In other submissions to the committee we have suggested that those two treaties be incorporated into domestic law. The other point is that Australia, of course, was instrumental in drafting those treaties at the UN.

CHAIR —Thank you for your attendance here this morning and the assistance you have already given the committee. You will receive the transcript of today's proceedings. You have been before us before. You know what is going to happen and there is no point in my repeating it.

Mr Hogan —There are no surprises. Farewell in Gaelic.

CHAIR —Thank you very much for your attendance and the assistance you have given us.

[11.43 a.m.]