Australian Journal of Human Rights
Why wasn’t genocide a crime in Australia? Accounting for the half century delay in Australia implementing the Genocide Convention
Australia ratified the Convention on the Prevention and Punishment of the Crime of Genocide on 8 July 1949 but did not legislate to make genocide a crime in Australia until 2002. This article addresses the question as to why there was such a delay. It finds that at first the sticking point was constitutional uncertainty regarding the use of the external affairs power where the detail of the implementing legislation needs to differ from the terms of the obligations Australia has assumed by treaty. As time went on the delay became an embarrassment for Australia and the matter was relegated to the ‘too hard’ basket. It was the complementarity provisions of the Rome Statute of an International Criminal Court that finally prompted the Australian Government into belatedly implementing its obligations under the Genocide Convention. The prospect of litigation by Indigenous Australians no doubt ensured that when the Commonwealth Government finally legislated to make genocide a crime in Australia it did not do so retrospectively.
The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Convention) confirmed that genocide is a crime in international law. By art V of the Convention, Contracting Parties are required to enact legislation to give effect to the provisions of the Convention. Australia ratified the Convention in 1949, the second country to do so, and yet it was not until passage of the International Criminal Court (Consequential Amendments) Act 2002 (Cth) that the Commonwealth Government legislated to make genocide a crime in Australia. It is therefore not unreasonable to speculate, as did the Joint Committee on Foreign Affairs and Trade in 1992, as to ‘whether the failure to legislate ha[d] been a matter of neglect or purposeful inaction’ (Joint Committee on Foreign Affairs and Trade 1992, 32). This question is particularly acute for those who believe that the Australian Government has, even in the relatively recent past, committed genocide against Indigenous Australians. Wadjularbinna Nulyarimma expressed the question thus:
[S]ince the Convention was signed in 1949 why hasn’t Australia gone ahead and made laws about Genocide? Is it that they want to continue this Genocide on a People hoping that it will go through and there will come a time when they won’t need this Act anyway because we will be all wiped out? That’s what it leads me to believe is going on. It is continual Genocide. It hasn’t changed. It just takes on different forms and as a victim and survivor of Genocide I have to say: How convenient of Australia not to have to come up with an Act dealing with Genocide [Affidavit no 2 of Wadjularbinna Nulyarimma, affirmed 8 July 1998, Supreme Court of the ACT, 1 quoted in Reynolds 2001, 11].
This paper draws on archival and other material to seek an answer as to why it took so long for Australia to enact the Convention into domestic law and why the Rome Statute finally provided an impetus for implementation that the Convention had not.
By resolution 260 (III) of 9 December 1948, the United Nations General Assembly approved the Convention on the Prevention and Punishment of the Crime of Genocide and proposed it for signature and ratification or accession in accordance with art XI. The term ‘genocide’ had been invented by a Polish lawyer, Raphael Lemkin, who believed that world concern over Nazi crimes might be more readily galvanised if there were a special term by which to refer to them (Joyner 1987, 412). He coined the term ‘genocide’ from the Greek ‘genos’ meaning ‘race’ and the Latin ‘cide’ meaning ‘killing’.
The General Assembly had, by resolution 96(I) of 11 December 1946, requested the Economic and Social Council to prepare a draft convention on the crime of genocide, and by resolution 47(IV) of 28 March 1947, the Economic and Social Council had instructed the Secretary General to draw up a draft convention. The Secretary General had a preliminary draft convention prepared, which drew on the feedback of three experts: Professors Lemkin, Polla and Donnedieu de Vabres. The draft was revised further by an ad hoc committee of the Economic and Social Council and by the Sixth Committee of the General Assembly, before it was approved by the General Assembly (UNESOC 1978).
By art I of the Convention, the Contracting Parties confirmed that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. Article II of the Convention defined genocide as:
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious groups, as such:
(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; or
(e) Forcibly transferring children of the group to another group.
Article IV provided that persons committing genocide or any of the other acts enumerated in art III (conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide) be punished ‘whether they are constitutionally responsible rulers, public officials or private individuals’.
While there was universal condemnation of the Nazi atrocities that had prompted Lemkin to embark on a vigorous campaign to have genocide made a crime in international law, not all delegations agreed that a convention on genocide was the best approach. The United Kingdom representative, for example, argued that a convention would not deter state initiated genocide and that if a significant number of states resisted ratifying such a convention it would cast doubt on the claim that genocide was an internationally recognised crime (Lippmann 1998, 449). Australia was, however, a keen supporter of the Convention, and Dr HV Evatt, President of the General Assembly, facilitated the progress of the Convention through the committee system (Reynolds 2001, 5). During the General Assembly debate on the Convention, Australia made a strong appeal for its unanimous and speedy acceptance.1 Australia signed the Convention on the same day it was opened for signature, 11 December 1948.
Closely associated with the origins of the Convention was that of renewed efforts to establish a permanent international criminal court. Attempts to create an international criminal court had been made in the aftermath of World War I (Ferencz 1992, 382). Sections 227 to 230 of the Versailles Peace Treaty mandated the establishment of an international war crimes tribunal and war crimes clauses were included in the various peace treaties, but the Allies did not insist on the strict implementation of these provisions (Ball 1999, 24; Willis 1982). In 1937 a Convention for the Creation of an International Criminal Court was opened for signature. It provided for the trial of persons accused of crimes defined in the Convention for the Prevention and Punishment of Terrorism, but never entered into force (Scharf 1991, 137).
After World War II, the establishment of the Nuremberg Tribunal and the International Military Tribunal for the Far East demonstrated the feasibility of an international court, but, with critics decrying them as meting out ‘victor’s justice’, also pointed to the desirability of a permanent rather than an ad hoc body. The draft Convention prepared by the Secretary General contained two alternative drafts concerning the establishment of an international criminal court. The first provided for a court with general competence to try all international crimes, possibly as a chamber within the International Court of Justice. The second envisaged establishing a criminal court, whether permanent or ad hoc, whose jurisdiction would be limited to cases of genocide (UNESOC 1978, 57). The draft prepared by the Secretary General also included an article under which the contracting parties would have pledged themselves to commit all persons guilty of genocide to trial to an international court in cases either where they were unwilling to try such offenders themselves or to grant their extradition, or in cases in which the acts of genocide had been committed by individuals acting as an organ of the state or with the support or toleration of the state (UNESOC 1978, 57-58).
Opinions were divided, in both the ad hoc committee and the Sixth Committee, over the desirability of including a provision committing to trial by an international court or tribunal those accused of committing genocide. A key argument in favour of an international court was that since genocide was virtually always committed with the complicity of the state, it was obvious that courts in that state would be unable to prosecute those responsible. But many reasons were given as to why there should be no reference to an international court, most of which related in one way or another to the fundamental obstacle of national sovereignty. These included questions pertaining to the effective enforcement of any decision by an international tribunal, that states would not accept a court with compulsory jurisdiction, that there was not yet a defined body of international criminal law, that it would not be possible to bring foreign rulers before a tribunal, and that attempts to do so could increase international tensions (UNESOC 1978, 58-59). The outcome of these deliberations was art VI of the Convention, which provided that persons charged with genocide or other acts punishable under the Convention ‘shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’.
In its resolution 260 B (III) of 9 December 1948, the General Assembly invited the International Law Commission to ‘study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions’. The International Law Commission at its 43rd meeting decided ‘that the establishment of an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions is desirable’ (ILC 1950, 23) and on 12 December 1950 the General Assembly by resolution 489(V) established a committee to prepare one or more preliminary draft Conventions and proposals relating to the establishment and the statute of an international criminal court. A second committee, established two years later, prepared a revised draft statute.
Recognising the close connection between the role of an international criminal court and the definition of aggression, the General Assembly postponed further consideration of an international criminal court until progress had been made on defining aggression (UNESOC 1978, 65-66). It was not until 1974 that the General Assembly by resolution 3314(XXIX) adopted a definition of aggression. That an international criminal court did not eventuate at that time was closely related to concerns regarding sovereignty. As expressed in the reply of the Federal Republic of Germany to a request of 20 November 1972 for its views on the possibility of establishing an international criminal jurisdiction as proposed in art VI of the Convention:
... The establishment of an international body to carry out investigation is welcomed in principle, but the chances of its realization are slight.
As is known, the Federal Republic of Germany has always rejected the idea ... of subjecting persons who come under the jurisdiction of our own courts to the jurisdiction of an international court. As we do not recognize a substantive and objective international penal law, the international rules of law under which cases of genocide would be tried would first have to be created [UNESOC 1978, 65].
It was not to be until the 1990s that international efforts to create an international criminal court once again gathered momentum.
The Australian decision to ratify the Convention before preparing implementing legislation
A state does not become bound by a multilateral treaty through the simple act of signing; it must confirm its intention through the process of ratification. But even if Australia had moved to ratify immediately the Convention, and the Convention had entered into force, it would not have impacted directly on Australian law unless the Australian Government had moved to implement the treaty in the domestic legal system. Australia has adopted a dualist interpretation of the relationship between international law and municipal law, according to which the two systems of law are distinct, and a treaty only impacts on Australian law once it has been explicitly incorporated into that law. Once Australia had signed the Convention, the questions then arose as to whether Australia would proceed straight away to ratification, whether existing Australian law already provided for the crime of genocide and, if not, how the treaty was to be implemented.
On 11 February 1949, the Secretary of the Department of External Affairs sought advice from the Attorney General’s Department as to whether there was any reason why Australia should not proceed to early ratification of the Convention.2 Kenneth Bailey, Solicitor General, did not respond with a simple ‘no’, as may well have been hoped for, but raised several complications. First, that the existing criminal laws of the Commonwealth and the States did not contain provisions in regard either to the ‘members of the group’ or to the ‘intent’ phrases in art II. Although the matter of killing and related offences was dealt with for the most part by State law, he was not aware of any reasons why the Commonwealth should not act under the external affairs power to enact the necessary legislation for the crime of genocide. Articles IV, VI and VII would require further consideration. So far as the procedure for ratification of the Convention was concerned, the Solicitor General referred to the recent Air Navigation Act 1947 (Cth), which provided for approval of the Chicago Convention on International Civil Aviation and conferred power on the Governor General to make regulations to give effect to the Convention. Kenneth Bailey believed that, because of the gravity of the crimes covered by the Convention, it would in this case be preferable to provide for their punishment by substantive provisions.3
Eager to accelerate Australia’s ratification of the Convention, officials in External Affairs were keen to proceed to ratification without waiting for the possibly considerable delays that may be involved in the preparation of implementing legislation. On 30 March 1949, the Secretary of the Department of External Affairs, John Burton, wrote to his counterpart in Attorney General’s to ask whether, even though there was no provision for ‘genocide as such’ under the existing laws of the Commonwealth and the States, he would be in general agreement with the view that existing Australian law provided effective penalties for the various acts described in the Convention as genocide.4 Mr Burton cited the comments of Sir Hartley Shawcross of the UK, expressed at the 64th meeting of the Sixth Committee of the General Assembly, that physical genocide was already generally recognised as a crime punishable by law and was simply a new word to describe a particular form of murder.5
In response, the Acting Secretary of the Attorney General’s Department noted several aspects of the crime of genocide as provided for in the Convention that did not correspond exactly with existing Commonwealth and State law. The intent to destroy a group through killing, for example, would have been immaterial under Commonwealth and State law except insofar as it would help to prove the intent to murder. Similarly, he was not aware of any provisions of existing State criminal law that made it an offence to cause either physical or mental injury by resorting to psychological technique. So far as paragraph (c) were concerned, the only identified related examples were those in relation to a person whom another person, such as a parent or guardian, was under some obligation to provide for. The Acting Secretary was not able to find State provisions other than assault forbidding compulsory sterilisation, and the closest to ‘forcibly transferring children’ was State provisions relating to the abduction of children under the age of 12 and females under the age of 21. Given these identified discrepancies between the provisions of the Convention and existing State and Commonwealth law it is somewhat surprising that the Acting Secretary agreed ‘in general’ with the proposition put to him by the Secretary of External Affairs that ‘existing law within the Commonwealth provide[d] effective penalties for the majority of the acts described in the Convention as genocide’. The memo concluded, however, that it ‘might become necessary to clarify the law in certain respects to provide specifically for several matters dealt with in the Convention’.6
On 7 April 1949, Cabinet decided that Australia should indicate its intention to ratify the Convention and that the Convention should be submitted to the Parliament at its next session. On 11 April 1949, the Attorney General’s Department was requested to make arrangements for the drafting of a Bill to approve Australia’s ratification of the Convention.7
Australian officials were in a great hurry to sign and ratify the Convention. To them, as to others involved in promoting the new concept of ‘genocide’ as a crime in international law, ‘genocide’ was virtually synonymous with the Nazi holocaust,8 thereby facilitating the assumption that everyone would recognise genocide were they to see it. Australian officials were prepared to delay implementation of the Convention in the interests of speedy ratification and to emphasise Australia’s commitment to strengthening international law to encompass in specific terms such an evil. The relevant archival documents provide no basis for thinking that these officials intended never to implement the provisions of the Convention.
The Australian decision to place implementation of the Convention in abeyance
The decision to leave in abeyance the preparation of implementing or clarifying legislation was made by Cabinet on 7 April 1949. The Cabinet submission recommending such a decision drew heavily on the advice of the Parliamentary draftsman who had expressed concern at the lack of precision in the definition of genocide found in the Convention as compared with that usually found in criminal statutes in British countries. Such a lack of precision was deemed particularly problematic because of the nature and extent of the capacity of the Commonwealth to use the external affairs power to implement treaties.
The Australian Constitution had left unclear the exact nature of the capacity of the Commonwealth to legislate to implement treaties, particularly those whose subject matter normally fell within the jurisdiction of the States. Views had varied, Attorney General Groom declaring in 1908, for example, that the Commonwealth Parliament had power under s 51(xxix) to make such legislative provision as was necessary to secure the fulfilment of treaty obligations,9 while Harrison-Moore published the view in 1910 that a matter in itself purely within the exclusive power of the States could not be drawn within the range of federal power merely because some arrangement had been made for uniform national action.10
By the 1930s there was still a considerable degree of uncertainty regarding the exact nature of the legislative powers of the Commonwealth, as can be illustrated by the treatment of the 1931 Convention for the Regulation of Whaling. At the Conference of Commonwealth and State Ministers in 1934, the Commonwealth took the attitude that it did not have the power to legislate under s 51(x) of the Constitution to give effect to the Whaling Convention and expressed the view that placitum (x) required alteration; during the discussions the Commonwealth did not even refer to the external affairs power.11 The Whaling Act 1935 (Cth) was passed on the assumption that it would be necessary for States to pass legislation complementary to the Commonwealth Act before Australia could ratify the 1931 Whaling Convention without reservation. The 1936 decision of the High Court in The King v Burgess; Ex parte Henry confirmed the right of the Commonwealth to use the external affairs power to carry out and give effect to an international convention. This decision encouraged the Solicitor General to believe that the Commonwealth Government had the power to legislate for the purpose of giving full effect to the Convention for the Regulation of Whaling.12 The majority in The King v Burgess; Ex parte Henry had also found, however, that the Air Navigation Regulations 1947 (Cth) made under s 4 of the Air Navigation Act 1920 (Cth) were invalid because they did not carry out and give effect to the Convention. Although the regulations largely followed the Convention they did not embody all its provisions, and in some respects differed from it. In November 1937 the Solicitor General modified his advice to External Affairs to the effect that it ‘seemed desirable’ that the States pass legislation on whaling complementary to that of the Commonwealth and that any ratification of the Whaling Convention and Protocol be made with a reservation as to the limitation of Commonwealth powers.13
It was the lack of precision in the Convention’s definition of genocide combined with the decision of the High Court in The King v Burgess; Ex parte Henry that made the Parliamentary draftsman so uneasy when he considered implementation of the Convention. The definition of genocide was not sufficiently precise for criminal law and yet ‘[a]ny attempt in the Bill to clarify the definition of genocide would involve grave risks of invalidity, the reason being that, while the “external affairs” power is regarded as authorising legislation for giving effect to an international convention, a law which departed from the terms of such a convention could be challenged as not being a law for giving effect to the convention’.14 Given this fundamental problem, the Parliamentary draftsman observed that while, strictly speaking, Australia needed to alter its domestic law it might be possible that without that such alteration other parties would be satisfied that Australia was ‘substantially’ carrying out its obligations.15 The Cabinet submission recommending that implementation of the Convention be left in abeyance did so on the basis that the obligation of Australia to give effect to the Convention would not arise until the 90th day following the date of deposit of the 20th instrument of ratification and that there was therefore time to see what action other parties would take so far as their own domestic laws were concerned.
The suggestion that implementation be left in abeyance having been accepted by the Acting Minister,16 legislation was prepared and on 12 July 1949 the Commonwealth parliament passed the Genocide Convention Act 1949 (Cth), approving ratification by Australia and the notification by Australia in accordance with art 12 of the Convention to extend the application of the Convention to all territories for the conduct of whose foreign relations Australia is responsible. Parliamentary debate on the Genocide Convention Act evinced expressions of horror at the nature of the crime, although also, perhaps, a degree of complacency that genocide ‘could never happen here’. Mr Menzies, then Leader of the Opposition, for example, ‘hasten[ed] to say that persecution of that kind has never been tolerated in Australia, and [he was] perfectly certain that it never will be tolerated here’(Australia, Parliamentary Debates vol 203, 1949, 1865). Both Mr Menzies, as Leader of the Opposition, and Dr Evatt, Attorney General and Minister for External Affairs, referred to the likelihood of additional legislation to implement the Convention (Australia, Parliamentary Debates, vol 203 June 1949, 1864-5). Australia deposited its instrument of ratification with the Secretary General of the UN on 8 July 1949 and the Convention came into force on 12 January 1951. The UK, whose representative on the Sixth Committee had expressed doubts regarding the efficacy of a convention on genocide (Lippmann 1998, 449), and to which the formulation of Australian foreign policy was still in the 1940s closely aligned, did not ratify the Convention until 1969, following enactment of the Genocide Act 1969.
The reason why Australia did not pass implementing legislation at the time of ratification was thus sensitivity regarding reliance on the external affairs power, heightened by a perceived lack of precision in the Convention’s definition of genocide, which meant that the Commonwealth would have to go beyond the Convention in order to get a definition adequate for the purposes of criminal law. It appears that as time went on the issue simply became ‘too hard’. Recognising that the failure to legislate was an embarrassment to the Australian Government one bureaucrat noted in the mid-1960s that passing legislation to cover genocide at that stage ‘would look ridiculous’.17 By then it had become standard for the Commonwealth Government to respond to queries about Australia’s position as regards the Convention with the line that, while it was true that all Contracting Parties to the Convention had undertaken to enact the necessary legislation to give effect to the provisions of the Convention, it had been and was the view of the Commonwealth Government that the laws already in force in Australia provided substantially for the punishment of the classes of acts described in the Convention.18 Australia continued to rely on this line of argument (Joint Committee on Foreign Affairs, Defence and Trade, A Review of Australia’s Efforts to Promote and Protect Human Rights 1992, 32) despite the fact that it was not necessarily believed by officers in the departments of External Affairs or Attorney General’s.19
During the late 1980s, concern ‘that a significant number of persons who committed serious war crimes in Europe during World War II may have entered Australia and become Australian citizens or residents’ (Preamble to the War Crimes Amendment Act 1988, No 3 of 1989) gave rise to the establishment in 1987 of the Special Investigations Unit and three unsuccessful Nazi war crimes trials (Aarons 2001). Considerable controversy surrounded the cases, in part because of a lack of political will to cover the necessary financial costs and in part due to the media supported impression of victimising old men for events that had occurred a long time ago. In the Australian mind, genocide continued to be associated with crimes committed somewhere else by someone else. In the early 1990s two government reports recommended implementing legislation. A 1991 Report of the Review of Criminal Law (Cth), chaired by Sir Harry Gibbs, recommended that legislation be enacted along the lines of the Genocide Act 1969 of the UK to implement fully Australia’s obligations under the Convention (Attorney General’s Department 1991, para 13.11). A 1992 review by the Joint Committee on Foreign Affairs and Trade of Australia’s efforts to promote and protect human rights also recommended that the Australian Government introduce legislation to implement the Convention (Joint Committee on Foreign Affairs and Trade 1992, 31-32). Legislation to make genocide a crime in Australia was still not forthcoming.
The stolen generations and genocide
In the 1990s public attention turned to the possibility of genocide having been perpetrated against Australia’s Indigenous peoples. The Convention was referred to in the final report of a Royal Commission investigating the deaths of Aboriginal people while in gaol, although the Report did not state whether government policies had breached the Convention (Royal Commission into Aboriginal Deaths in Custody 1991, para. 36.3). It was in relation to the ‘stolen generations’ that genocide entered mainstream Australian public discourse. ‘Stolen generations’ was a term that historian Peter Read had used in 1981 to refer to Indigenous children who had been removed from their families under practices and policies of the Australian Government (Read 1981). A 1997 report by the Human Rights and Equal Opportunity Commission found that the removal of between one in three and one in ten Indigenous children from their families in the period between 1910 and 1970 had constituted genocide as defined in the Convention (HREOC 1997). This finding provoked considerable public discussion on the applicability of the genocide concept to Australia’s treatment of its indigenous population. There were also several cases, including Thorpe v Commonwealth; Alec Kruger & Ors v Commonwealth; George Ernest Bray & Ors v Commonwealth; and Nulyarimma v Thompson, which sought to use genocide as ‘litigation strategy’ by which to gain greater justice as regards the stolen generations, land rights, and the environment (see Scott 2004). The prospect of any such litigation succeeding was abhorrent to the conservative Commonwealth Government on political and moral, as well as financial, grounds.
Nulyarimma v Thompson arose from a claim by Wadjularbinna Nulyarimma, Isobel Coe, Billy Craigie and Robbie Thorpe that Prime Minister John Howard, Deputy Prime Minister Tim Fischer, Senator Brian Harradine and Pauline Hanson (a member of the House of Representatives) had committed genocide in formulating or supporting the Commonwealth Government’s ‘Ten Point Plan’ and Native Title Amendment Act 1998 (Cth). In his leading judgment of 1 September 1999 in Nulyarimma v Thompson, Wilcox J observed that there was much in Australia’s history that could be construed as genocidal, but that it was far from clear that the issue at stake — the Government’s ten point plan — was related to an intention to destroy the Aboriginal race. More fundamentally, the Court found that genocide was not a crime in Australia. The customary international law against genocide had not become part of the law of Australia. Nor had Australia passed legislation to implement the Convention, as is required under Australia’s dualist interpretation of the relationship of international law to Australian law. Much of the academic discussion in response to the judgment of the Federal Court in Nulyarimma v Thompson was directed to the question of whether the majority was correct in its assessment of the relationship between international customary law and Australian municipal law (for example, Daglish 2001; Gildfoyle 2001; Mitchell 2000). But the Nulyarimma case also raised the question as to why the Australian Government had not at the time of ratification passed legislation to implement the Convention and why succeeding governments had failed to rectify the omission.
The Anti-Genocide Bill 1999 (Cth) was a Private Senator’s Bill introduced into the Senate on 13 October 1999 by Senator Brian Greig of the Australian Democrats. It aimed to achieve compliance with the Convention by formally incorporating the crime of genocide into Australian domestic law. In his second reading speech, Senator Greig referred to the prevention and punishment of the crime of genocide as ‘unfinished business’ of the Commonwealth Parliament. Making reference to Nulyarimma v Thompson as well as to evidence of genocide having been committed in East Timor, Senator Greig rejected the view that existing criminal laws at State and Territory level were sufficient protection against genocide (Greig, Senate Hansard, 13 October 1999); the view that the common law and the criminal codes of the States and Territories were adequate to fulfil Australia’s international obligations in relation to the Convention was one that had been repeated by the Office of the Attorney General as recently as September 1999 (extract from letter of 15 September 1999 from the Office of the Attorney General to Amnesty International Australia, quoted in Senate Legal and Constitutional Committee 2000, 18).
On 14 October 1999, the Senate referred the Anti-Genocide Bill 1999 to the Legal and Constitutional Affairs References Committee. The resultant report, of June 2000, concluded that anti-genocide legislation in Australia was both necessary and timely and recommended that the Bill be referred to the Attorney General for consideration of the matters identified by the Committee in respect of its contents (Senate Legal and Constitutional Committee 2000, 52-53).
Domestic pressure for implementation of the Convention was by this stage, however, overshadowed by pressure from the international arena. International efforts to establish an international criminal court had been revived in the 1990s. Trinidad and Tobago had in 1989 proposed that efforts at drafting an International Criminal Court Statute be resumed so as to create an international judicial institution capable of dealing with the increase in international drug trafficking. The International Law Commission prepared a draft Statute, which was the basis for work by a Preparatory Committee in 1996-1998. Following an intensive five week diplomatic conference, the Rome Statute of the International Criminal Court (the Statute) was adopted on 17 July 1998. The Statute gave the Court jurisdiction over individuals, not States, in respect of four crimes: genocide, defined as per the Convention; crimes against humanity; war crimes; and aggression (once a provision defining this crime and setting out the conditions for the exercise of such jurisdiction is adopted). Australia played an active part in the negotiation of the Statute, including chairing the influential ‘like-minded group’ of over 60 countries, and signed the Statute on 9 December 1998. It was the impending establishment of an international criminal court that was to provide the impetus for the Australian Government to legislate to make genocide a crime in Australia.
The International Criminal Court (Consequential Amendments) Act 2000 (Cth)
In preparation for ratifying the Statute (which it did on 1 July 2002), the Australian Government on 25 June 2002 introduced two pieces of legislation. The International Criminal Court Act 2002 (Cth) (ICC Act) contained provisions allowing Australia to comply with its international obligations on ratification by putting in place procedures to comply with requests for assistance or the enforcement of sentences. The ICC Act amended the Criminal Code Act 1995 (Cth) to enact the crimes punishable by the International Criminal Court as crimes in Australian law (genocide, crimes against humanity and war crimes), as well as making consequential amendments to six other acts. Half a century after ratifying the Convention, the Australian Government thereby made genocide a crime in Australia, obviating the need for legislation specifically to implement the 1949 Genocide Convention. This would seem to beg the question as to why the statute provided an impetus for legislating genocide as a crime in Australia when the Convention had not.
As we have seen in the context of the earlier consideration of an international criminal court, fundamental to the success of efforts to establish such a court would be the manner in which sovereignty concerns were addressed — in particular, how the international criminal court would relate to national courts. It was decided early in the preparatory negotiation phrase that the international court would not have primacy over national courts as had the ad hoc tribunals for the Former Yugoslavia and for Rwanda (Doherty and McCormack 1999, 151); the International Criminal Court was intended, rather, to be complementary to national criminal jurisdictions (Williams 1999). Article 17 of the Statute provides that a case is admissible only if a State with jurisdiction over it is unwilling or unable genuinely to carry out the investigation or prosecution. Article 17(3) stipulates:
In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
This was intended to cover a ‘failed state’ scenario in which the legal and administrative structures of the state had broken down (Doherty and McCormack 1999, 152). But another scenario in which the International Criminal Court may also be able to make a determination in favour of its own jurisdiction on the grounds that the state with jurisdiction was ‘unable’ to carry out the proceedings would be that in which a state does not have penal legislation covering one or more of the crimes within the jurisdiction ratione materiae of the Court (Doherty and McCormack 1999, 152).
It was undoubtedly this situation that the Australian Government wished to avoid through passage of the ICC Act. The Australian Government legislated to make genocide a crime in Australia and define it as per the crime of genocide in the Statute (which was the same as that in the Convention), ‘so that Australia retain[ed] the right and power to prosecute any person accused of a crime under the Statute in Australia rather than surrender that person for trial in the International Criminal Court’.20 As with the Statute, the legislation was not to be retrospective, ensuring that it could not provide grounds for litigation regarding the past treatment of Indigenous Australians.
Article V of the Convention requires Contracting Parties to ‘undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in Article III’. Australia ratified the Convention on 8 July 1949 but the Commonwealth Government did not proceed to implement its provisions as required by art V.
The inaction of the Australian Government so far as implementing the Convention was concerned occurred in two steps: first, that by which the decision was made to ratify the Convention without waiting for the inevitable delay in preparing detailed legislation addressing the substance of the Convention; and second, that by which a decision was made to place in abeyance the process of implementation because of the perceived difficulties in drafting legislation adequate to meet the requirements of criminal law but which did not attempt to stretch the scope of Commonwealth legislative capacity derived from the external affairs power.
It is no doubt true that such inaction would not have been possible had there not been a complacency borne of the view that ‘it could never happen here’ and there is little doubt that this assurance was facilitated by the virtual equation in the minds of officials and politicians of genocide and the holocaust. As Tony Barta (1985, 154-155) commented, ‘“Genocide” for most people means only one thing: the murder of six million Jews by Germans during the Second World War.’ While the absence of implementation did not stem from wilful intent to commit with impunity acts of genocide against Indigenous Australians, the failure to even consider such a connection confirms the shuttered vision and arrogance of White Australia towards Indigenous Australians in the 1940s and 1950s.
It would not appear, however, that arrogance — or even complacency — was the direct reason for the failure of the Australian Government to implement the Genocide Convention at or following ratification. Rather, the technical detail of how the Convention was to be implemented and, in particular, the implications for exercise of the external affairs power of the judgment in The King v Burgess; Ex parte Henry, was the immediate reason for the Government putting in abeyance implementation of the Convention while waiting to see how other countries proceeded. The archival record indicates that Commonwealth inaction at the time of ratification had little or nothing to do with avoiding legal culpability for anticipated actions but related primarily to the perceived difficulties involved in drafting legislation that would be both sufficiently precise to be effective while also falling unequivocally within the external affairs power of the Commonwealth.
After a delay of more than half a century, the Commonwealth Government finally legislated in 2002 to make genocide a crime in Australia. Although the Government had been under domestic pressure to do so because of Indigenous issues, it was the establishment of an international criminal court with jurisdiction over the crime of genocide where a national jurisdiction is unwilling or genuinely unable to carry out an investigation or prosecution that finally prompted the Australian Government to act, and to do so in such a way as to avoid providing a basis for litigation on behalf of the ‘stolen generations’. The Australian Government introduced the ICC Act, which, inter alia, made genocide a crime in Australia so as ‘to take full advantage of the principle of complementarity’ in the Statute (Downer and Williams 2000). l
* Senior Lecturer in International Relations School of Politics and International Relations.
1 Cable from the Australian Delegation to the UN to External Affairs and Attorney General’s, 9 December 1948 (Australian Archives (AA) A432/67 69/3143 Pt 1).
2 J Bunton, Secretary, External Affairs to the Solicitor General, Attorney General’s, 11 February 1949 (AA A432/67 69/3143 Pt 1)
3 ‘For Information: Australia’s Ratification of the Convention on the Prevention and Punishment of the Crime of Genocide’ at p 4 (AA: 930/2/15 Pt 8, Box 0).
4 J Burton, Secretary, External Affairs to the Secretary, Attorney General’s, 30 March 1949. AA A432/67 69/3143 Pt 1.
5 J Burton, Secretary, External Affairs to the Secretary, Attorney General’s, 30 March 1949. AA A432/67 69/3143 Pt 1.
6 GA Watson, Acting Secretary, Attorney General’s Department to the Secretary, Department of External Affairs’, 6 April 1949, AA: 930/2/15 Pt 8, Box 0.
7 J Burton, Secretary, External Affairs to the Secretary, Attorney General’s, 11 April 1949, AA A432/67 69/3143 Pt 1.
8 This was despite the fact that Lemkin had been very conscious of earlier genocides (Saul 2001, 480).
9 Opinion of Attorney General Groom, dated 19 June 1908, cited in ‘Whaling Convention (1931) — Power of the Commonwealth to Give Effect Thereto — “External Affairs” power’, AA A432/85 38/693 Pt 2.
10 Harrison Moore (1910), The Commonwealth of Australia (2nd ed) 461-462 cited in ‘Whaling Convention (1931) — Power of the Commonwealth to Give Effect Thereto — “External Affairs” power’, AA A432/85 38/693 Pt 2.
11 ‘Whaling Convention (1931) — Power of the Commonwealth to Give Effect Thereto — “External Affairs” power’. AA A432/85 38/693 Pt 2.
12 Leo S Knowles, Solicitor-General, to the Secretary, External Affairs, ‘International Whaling Convention (1931) — Constitution. S.51 (xxix) — Whether the Commonwealth Parliament may enact legislation giving full effect to the Convention — Whether the Convention may be ratified without reservation’, Opinion No 49 of 1938, 8 April 1938,AA A432/85 38/693 Part 2.
13 Geo S Knowles, Secretary Attorney General’s to The Secretary, External Affairs, 23 November 1937, AA A432/85 38/693 Pt 2.
14 ‘For the Acting Minister’, 10 May 1949, AA A432/67 69/3143 Pt 1.
15 ‘For the Acting Minister’, 10 May 1949, AA A432/67 69/3143 Pt 1.
16 ‘For Information: Australia’s Ratification of the Convention on the Prevention and Punishment of the Crime of Genocide’, at 8, AA: 930/2/15 Pt 8, Box 0.
17 Handwritten memo in AA 930/2/15 Pt 8 Box 0.
18 KCO Shann for Secretary, External Affairs to the Secretary, Prime Minister’s Department, 14 August 1952. AA A463/17 57/6413.
19 See, for example, memo from JHA Hoyle to Mr Benson, External Affairs, 16 September 1965, AA 930/2/14 Pt 8 Box 10.
20 House of Representatives, International Criminal Court (Consequential Amendments) Bill 2002, Explanatory Memorandum, at 1.
Books and articles
Aarons M (2001) War Criminals Welcome: Australia, A Sanctuary for Fugitive War Criminals Since 1945 Black, Melbourne.
Attorney General’s Department (1991) Review of Commonwealth Criminal Law Final Report of Review Committee chaired by Sir Harry Gibbs AGPS, Canberra.
Australian Parliamentary Debates, vol 203 June 1949.
Ball H (1999) Prosecuting War Crimes and Genocide: the twentieth-century experience University Press of Kansas, Lawrence.
Barta T (1985) ‘After the Holocaust: consciousness of genocide in Australia’ 31:1 Australian Journal of Politics and History pp 154-161.
Daglish K (2001) ‘The Crime of Genocide: Nulyarimma v Thompson’ (2001) 50 ICLQ pp 404-411.
Doherty KL and McCormack TLH (1999) ‘”Complementarity” as a catalyst for Comprehensive Domestic Penal Legislation’ 5:2 UC Davis Journal of International Law & Policy, pp 147-180 at 152.
Downer A (Australian Minister for Foreign Affairs) and Williams D (Commonwealth Attorney General) (2000), ‘Ratifying the International Criminal Court’, Joint Media Release, 25 October 2000, <www.dfat.gov.au/media/releases/foreign/2000/fa116_2000.html>.
Ferencz BB (1992) ‘An International Criminal Code and Court: where they stand and where they’re going’ 30 Columbia Journal of Transnational Law pp 375-399.
Greig Senator B (Western Australia), Commonwealth of Australia, Senate Official Hansard, 13 October 1999, pp 9612-9614.
Guilfoyle D (2001) ‘Nulyarimma v Thompson: is genocide a crime at common law in Australia?’ 29 Federal Law Review pp 1-36.
Human Rights and Equal Opportunity Commission (HREOC) (1997) Bringing them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Commonwealth of Australia, Canberra.
International Law Commission (1950) Yearbook of the International Law Commission 1950, vol I.
Joint Committee on Foreign Affairs and Trade (1992) A Review of Australia’s Efforts to Promote and Protect Human Rights AGPS, Canberra.
Joyner CC (1987) ‘The United States and the Genocide Convention’ 27 Indian Journal of International Law pp 411-455
Lippman M (1998) ‘The Convention on the Prevention and Punishment of the Crime of Genocide: fifty years later’ 15:2 Arizona Journal of International and Comparative Law pp 427-428.
Mitchell AD (2000) ‘Is Genocide a Crime Unknown to Australian Law? Nulyarimma v Thompson’ 3 Yearbook of International Humanitarian Law pp362-383.
Read P (1981) The Stolen Generations: the removal of Aboriginal children in New South Wales 1883 to 1969 New South Wales Ministry of Aboriginal Affairs Occasional Paper No 1.
Reynolds H (2001) An Indelible Stain? The question of genocide in Australia’s history Viking, Ringwood.
Royal Commission into Aboriginal Deaths in Custody (1991) vol 5 AGPS, Canberra.
Saul B (2001) ‘Was the conflict in East Timor “genocide” and why does it matter?’ 2 Melbourne Journal of International Law pp 477-522.
Scharf, MP (1991) ‘The Jury is Still Out on the Need for an International Criminal Court’ 1 Duke Journal of Comparative and International Law pp 135-168.
Scott, SV (2004) ‘International law as litigation strategy for Indigenous Australians: a comparison of the Mabo and Nulyarimma Cases’ in S Roach Anleu and W Prest eds Litigation: Past and Present UNSW Press, Sydney.
Senate Legal and Constitutional Committee (2000) Humanity Diminished: the Crime of genocide Commonwealth of Australia, Canberra.
United Nations Economic and Social Council (UNESOC) (1978) ‘Study of the Question of the Prevention and Punishment of the Crime of Genocide’ E/CH.4/Sub.2/416, 4 July 1978.
Williams SA (1999) ‘Article 17 Issues of admissibility’ in O Triffterer, (ed) Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article Nomos Verlagsgesellschaft, Baden-Baden pp 383-394.
Willis JF (1982) Prologue to Nuremberg: the politics and diplomacy of punishing war criminals of the First World War Westport, Greenwood.
The King-v-Burgess; ex parte Henry  HCA 52; (1936) 55 CLR 608.
Thorpe v Commonwealth of Australia (No 3)  HCA 21; (1997) 71 ALJR 767.
Alec Kruger & Ors v Commonwealth; George Ernest Bray & Ors v Commonwealth (1997) 146 ALR 137.
Nulyarimma v Thompson  FCA 1192.
Air Navigation Act 1947 (Cth).
Anti-Genocide Bill 1999 (Cth).
Genocide Convention Act 1949 (Cth).
International Criminal Court Act 2002 (Cth).
International Criminal Court (Consequential Amendments) Act 2002 (Cth).
War Crimes Amendment Act 1988 (Cth).
International legal materials
Convention on International Civil Aviation, 4 April 1947, 15 UNTS 295.
Convention on the Prevention and Punishment of the Crime of Genocide, 12 January 1951, 78 UNTS (1951) 277.
Rome Statute of the International Criminal Court, 1 July 2002, 37 ILM 999 (1998).