The Anti-Genocide Bill 1999

The Convention on the Prevention and Punishment of the Crime of Genocide, which came into force in 1951, was ratified by Australia in 1949 and the ratification was recognised in the Genocide Convention Act 1949 (Cth).  However, Australia has so far failed to carry out its obligation under the Convention to bring the provisions of the Convention into domestic law.  In September 1999 this position was highlighted by the Full Federal Court in Nulyarimma.  In response, Senator Brian Greig (Australian Democrats) introduced an Anti-Genocide Bill, which would amend the Genocide Convention Act 1949 so as to bring the Convention into force.  Below are the text of the bill and Senator Greig's second reading speech.  The bill is now in the Senate Legal and Constitutional References Committee, which is to report by the end of June.
Anti-Genocide Bill 1999
Proposer's Speech

The Anti-Genocide Bill 1999

1998-99

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time
 

Anti-Genocide Bill 1999

No. , 1999

(Senator Greig)
 

A Bill for an Act to give effect to the Convention on the Prevention and Punishment of the Crime of Genocide, and for related purposes

Contents

1 Short title
2 Commencement
3 Schedule(s)

Schedule 1—Amendment of the Genocide Convention Act 1949
The Parliament of Australia enacts: 1 Short title

This Act may be cited as the Anti-Genocide Act 1999.

2 Commencement

This Act commences on the day on which it receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
 
 

Schedule 1—Amendment of the Genocide Convention Act 1949

1 Section 3

Insert:

Australia includes the external Territories. 2 Section 3

Insert:

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, ethnical, racial or religious group, or a group based on gender, sexuality, political affiliation or disability:
  (a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;

(e) forcibly transferring children of the group to another group.
 

3 At the end of section 3

Add:

(2) Except so far as the contrary intention appears, an expression that is used both in this Act and in the Convention (whether or not a particular meaning is given to it by the Convention) has, in this Act, the same meaning as it has in the Convention. 4 After section 5

Insert:

6 Application

This Act extends to acts done or omitted to be done outside Australia.

7 Act binds the Crown

This Act binds the Crown in right of the Commonwealth or of a State.

8 Effect of this Act on other laws

Except as provided by this section, this Act is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

9 Offence of genocide

(1) A person who commits an act of genocide is guilty of an offence against this Act and is punishable on conviction by imprisonment for life.

(2) A person who conspires with another person to commit an act of genocide is guilty of an offence against this Act and is punishable on conviction by imprisonment for life.

(3) A person who publicly urges the commission of an act of genocide is guilty of an offence against this Act and is punishable on conviction by imprisonment for a period not exceeding 10 years.

(4) A person who attempts to commit an act of genocide is guilty of an offence against this Act and is punishable on conviction by imprisonment for life.

(5) A person who aids, abets, counsels or procures the commission of an act of genocide is guilty of an offence against this Act and is punishable on conviction by imprisonment for life.
 

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 10 Only Australian citizens or persons present in Australia may be prosecuted

A person shall not be charged with an offence against this Act unless the person:
 

(a) is an Australian citizen; or

(b) is present in Australia.
 

11 Jurisdiction of courts and choice of law

Where a person is charged with an offence against this Act, then, for the purposes of:
 

(a) determining whether a court of a State or Territory has jurisdiction in relation to the offence; and

(b) an exercise of jurisdiction by such a court in relation to the offence; and

(c) a proceeding connected with such an exercise of jurisdiction; and

(d) an appeal arising out of, or out of a proceeding connected with, such an exercise of jurisdiction;
 

this Act has effect, in relation to an act that is, or is alleged to be, the offence, as if a reference in section 12 to a part of Australia were a reference to that State or Territory.

12 Alternative verdicts

(1) Where:

(a) a person is charged with an offence against this Act; and

(b) the offence is alleged to be an act that, under the law in force in a part of Australia at the time (in this subsection called the relevant time) when the act was alleged to have been done, would have constituted an offence of a particular kind if it had been done in that part of Australia at the relevant time; and

(c) on the person’s trial for the offence, the jury:
 

(i) is not satisfied that the person is guilty of the offence charged; and

(ii) is satisfied that the person is guilty of a different offence against this Act (in this section called the alternative offence) because the person has done an act that, under the law in force in that part of Australia at the relevant time, would, if it had been done in that part of Australia at that time, have constituted an offence (in this section called the local offence found to have been proved) of a kind different from the kind of offence referred to in paragraph (b); and
 

(d) by virtue of the law in force in that part of Australia at the relevant time or at the time of the trial, a person charged with an offence of the kind referred to in paragraph (b) could in certain circumstances be found not guilty of the last-mentioned offence but guilty of an offence of the kind referred to in subparagraph (c)(ii);
the jury may find the person not guilty of the offence charged but guilty of the alternative offence.

(2) If the jury finds the person guilty of an offence under this Act in the circumstances referred to in subsection (1), it shall, when returning its verdict, tell the judge that it is satisfied as mentioned in subparagraph (1)(c)(ii) and specify to the judge the kind of local offence found to have been proved.

13 No defence of exceptional circumstances or superior orders

It is not a defence in a proceeding for an offence against this Act that:
 

(a) the act constituting the offence was done out of necessity arising from the existence of a state of war, a threat of war, internal political instability, a public emergency or any other exceptional circumstance; or

(b) in doing the act constituting the offence the accused acted under orders of a superior officer or public authority;
 

but the circumstances referred to in paragraphs (a) and (b) may, if the accused is convicted of the offence, be taken into account in determining the proper sentence.

14 Section 38 of Judiciary Act

A matter arising under this Act, including a question of interpretation of the Convention for the purposes of this Act, shall, for the purposes of section 38 of the Judiciary Act 1903, be deemed not to be a matter arising directly under a treaty.
 

Second Reading Speech of Proposer

Senator GREIG (Western Australia) (3.45 p.m. [13 October 1999]) --I move:

   That this bill be now read a second time.

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

   Leave granted.

   The speech read as follows--

In 1949 this Parliament commenced some business that fifty years later remains unfinished. That business was no less that the prohibition and punishment of the heinous crime of genocide.

In 1949, no doubt after some of the horrors of the Nazi Holocaust had become known, Australia ratified the Convention for the Prevention and Punishment of the Crime of Genocide . It was a good and necessary thing to do, however fifty years down the track--the prevention and punishment of the crime of genocide remains unfinished business by the Commonwealth Parliament.

At the time of the introduction of the Bill, then member for Macquarie and Labor Prime Minister Ben Chifley had the following to say:

The purpose of this Bill is to seek the approval of the Parliament for Australian ratification of the International Convention on the prevention and punishment of the Crime of Genocide. Genocide, which means the wholesale or partial destruction of religious, racial or national groups has long shocked the conscience of mankind.
During the debate on the same Bill, the Leader of the Opposition and founder of the Liberal Party of Australia--Mr Menzies had this to say:
Every member of this Parliament must view with equal horror the practice of mass killing and of persecution of people to the death, for the reasons of race or religion or for other reasons of the kind referred to in the convention. Of course the crime of genocide was not peculiar to Germany; I am not without my suspicions, nor are honourable members, that it is still going on in some parts of the civilized world, and for all I know may be going on in countries, one or more which are signatories to this convention.
Mr Menzies went on to say:
Persecution of the kind against which the convention is directed must never be tolerated . . . and I am perfectly certain that it will never be tolerated here.

However the last thing I should dream of doing would be to speak or vote in such a way as to cast any doubt on the proposition that in Australia we abominate the crime of genocide. Nobody has ever doubted it. If it needs our subscription to a convention to advertise our feelings to the world, then let us subscribe to it.

Honourable Senators, it falls upon each generation to assert the basic minimum standards of humanity and upon every politician to uphold those standards. It is therefore out of a solemn sense of duty that I, as a representative of my generation, present this Bill for consideration by the Australian Senate.

Fifty years is a long time to have unfinished business and I would be pleased to be able stand here today and echo the words of Sir Robert Menzies and say that:

Persecution of the kind against which the convention is directed must never be tolerated . . . and I am perfectly certain that it will never be tolerated here.
However as recently as September this year, the Federal Court of Australia in the case of Nulyarimma v Thompson (1/9/99 Federal Court) confirmed that there was indeed no offence of genocide known in Australian law. While the details of this case are certain to be debated for many years to come--the one resounding message is clear--at this present time, genocide is not unlawful in Australia.

As this Bill is tabled in the Senate, news is emerging from our closest neighbours in East Timor of atrocities, war crimes and evidence of genocide. Indeed, before the United Nations last month, the Foreign Minister Mr Downer said:

In the face of acts of genocide or of human rights abuses on a horrendous scale (in East Timor) the nations of the world must act.
The Australian Democrats continue to endorse this Government's peace-keeping role in East Timor. However, as a nation we must, I believe, be active as well as reactive in the face of genocide. We must lead by example. This Bill provides that example.

Some people have suggested that it is unnecessary to legislate against the crime of genocide in Australia. They argue that the existing criminal laws at State and Territory level are sufficient protection against arbitrary and systemic persecution and murder. The Australian Democrats disagree. In those terms the convention clearly distinguishes the offence of genocide as a crime that is directed at a particular group. It is the membership of a group which distinguishes this crime.

It was the fact of being targeted on the grounds of religion, ethnicity, political affiliation, sexual orientation, gender or disability which previously has qualified people as targets for genocide and for no other reason.

I would like to turn now to what is meant by genocide

This convention defines genocide as follows:

Article II, stipulates that any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, and includes the:

   (a) killing members of a group

   (b) causing serious bodily or mental harm to members of the group

   (c) deliberately inflicting on the group conditions of life calculated to bring about it's physical destruction in whole or in part

   (d) imposing measures intended to prevent births within the group

   (e) forcibly transferring children of the group to another group

Article III clarifies that not only is genocide a crime, so to is "conspiracy to commit genocide", "direct and public incitement to commit genocide", "attempt to commit genocide" and "complicity in genocide".

Honourable Senators--Genocide is as much a political crime as it is a crime against humanity. It is a crime which rests in the abuse of power by those who have power, against those who do not. As a political crime, it is as appropriate that in this Senate, in this Parliament and in this country that we as this generation of political leaders, stand side by side with the sentiments of Ben Chifley and Robert Menzies expressed fifty years ago.

The Bill to ratify Convention passed through this Parliament with multipartisan support in 1949. Indeed chief amongst its supporters was the father of the present Leader of the Opposition, Mr Beazley. At the time, Mr Kim Beazley senior said:

Every person in Australia with red blood in his veins and a spirit of humanity in his heart should applaud the Minister for External Affairs (Dr Evatt) for supporting a Bill of this kind so soon after his return to Australia and for seeking the approval of the Australian Parliament to such a magnificent statement of this country's intentions to do all in its power to prevent the commission of the acts that are referred to in this convention.
I signal here my intention to approach the Leader of the Opposition to seek his and his party's support to complete the work that his father helped start in 1949. I will also be writing to my Senate colleagues, the Prime Minister and members of the House of Representatives to seek their support. I look forward to their co-operation on this issue.

It is my intention that this Bill now be referred to the Senate's Legal and Constitutional References Committee for inquiry and report to the Senate mid next year. Accordingly, I will be giving a notice of motion today. The reference of this Bill to the Senate's Legal and Constitutional References Committee will give members of the community the opportunity to comment upon the Bill and make suggestions for its improvement. I welcome this process and input, sincerely believing that the wider input of the Australian community is necessary to raise awareness of the issues surrounding genocide and to make this Bill Australia's best statement against this crime.

Comparative jurisdictions have implemented their obligations under the convention. The UK has implemented under its Genocide Act 1969 , and section 318 of the Canadian Criminal Code has implemented the convention to a more limited extent. The United States of America implemented legislation in 1988. Since then, there have been numerous calls for Australia to follow suit, most notably in the Review of Commonwealth Criminal Law 1991, which stated:

". . . .the Australian Government decided in 1949 to limit Australian legislation to approve ratification. Whether there should be further Australian implementation or clarifying legislation was left in abeyance until the attitude of other contracting parties and action taken by other contracting parties as regards their domestic legislation was known.

The position of Australian law as regards to this convention, in the opinion of the review committee is clearly unsatisfactory."

In closing I wish to dedicate this Bill and the ensuing Senate Committee inquiry that will follow to all those who have suffered the horrors of genocide. To the Jewish community, the Armenians, the Rawandans [sic - I.S.], Tibetans, Cambodians, Kosovars, East Timorese, non-Han ethnic Chinese, peoples of the former Yugoslavia, Aboriginal and Torres Strait Islanders, to people with disabilities, the gay and lesbian community and the many others who have suffered genocide, this Bill is introduced into the Senate in their memory and through the determination I have to see Australia lead by example in this regard.
Debate (on motion by Senator Calvert) adjourned.
On 31 March 2000 Senator Greig confirmed that there was no intention to make the Act retrospective.  Thus it could not be used to prosecute alleged war criminals who have become Australian Citizens or the perpetrators of genocidal acts aganst Indigenous people.  (The Australian 1 April 2000.)

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