Independent Senator Lidia Thorpe has criticised a parliamentary inquiry which found her 'Genocide Bill' should not be passed by the Senate, labelling the decision a "complete farce".
Senator Thorpe's Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024 sought to remove the requirement for the Attorney-General's consent for proceedings in relation to those crimes to commence.
Chaired by Labor Senator Nita Green, the Senate Standing Committees on Legal and Constitutional Affairs recommended the Senate should not pass the private member's bill.
The Gunnai Gunditjmara and Djab Wurrung senator said the committee's recommendation fails to fulfil Australia's international legal obligations, and argued passing the bill would allow cases blocked by previous Attorneys-General since 2002 to be reviewed.
In a dissenting report, Senator Thorpe said the response by the committee in wake of the evidence provided "cannot but be called out as a complete farce," labelling it a reflection on the federal government's unwillingness to adhere to its international obligations in the prevention of genocide.
"The committee recommendation denies that the government has responsibility to act. By failing to comprehensively and immediately act upon atrocity crimes, the government is enabling and complicit in Genocide," she said.
"This is white supremacy in action."
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The report accepted that "overwhelmingly," submitted supported a change to the legislation, essentially arguing sections 268.121 and 268.122 of the Criminal Code Act 1995 prevent the prosecution and punishment of international crimes, which is contrary to Australia's international law obligations.
Senator Thorpe acknowledged this, arguing her bill had the support of "international human rights experts, communities affected by genocide all over the world, as well as First Peoples and allies," who said all agreed "victims of atrocity crimes should have better access to justice".
In their submission, Dr Souheir Edelbi, an international criminal law expert based at Western Sydney University, and Dr Sara Dehm, an international human rights lawyer at the University of Technology Sydney, said the bill would "ensure" federal legislation concerning the prosecution of war crimes and genocide is "consistent with Australia's obligations under international law to end impunity for acts of mass atrocities".
Professor Thalia Anthony, a criminal law and First Nations law expert based at the University of Technology Sydney, submitted Australia enables genocide nationally.
Referencing the Convention on the Prevention and Punishment of the Crime of Genocide, she highlighted the mass incarceration and deaths in custody of First Nations people.
"By failing to implement the RCIADIC [Royal Commission into Aboriginal Deaths in Custody] recommendations, the Australian Government, including the Attorney General, oversaw and created circumstances that lead to the deaths of over 500 First Nations people in custody," Professor Anthony said.
"Accordingly, it could face liability for genocide by deliberately inflicting conditions of life to bring about the physical destruction of the Aboriginal and Torres Strait Islander [article II(c) of the Convention]. It knowingly enforced measures that would result in their deaths and serious bodily or mental harm [articles II(a) and (b) of the Convention]."
However, the Department of the Attorney-General rejected calls to alter the legislation, arguing "consent to prosecute provisions are a long-standing feature of the Commonwealth criminal justice framework".
The committee accepted this view and rejected calls to change the legislation, arguing the "Attorney-General's consent should be required for prosecutions involving cases of universal jurisdiction, as provided for in section 16.1 of the Criminal Code".
In response to the findings, Senator Thorpe said Australia has a legal obligation to "do all we can to prevent and punish Genocide, crimes against humanity and war crimes".
"The report's recommendation shows the government's stated commitment to these conventions is disingenuous. What's the point of signing up to these conventions if you're unwilling to follow them?" she said.
"'Never again' should actually mean 'never again.'."
