Last week, the High Court handed down its judgment in Taylor v Attorney-General  HCA 30. It was a close call with a slim 4:3 majority dismissing the application. The decision concerned the attempted prosecution of Aung Sun Suu Kyi under Division 268 of the Criminal Code Act 1995 (Cth) (Criminal Code) which represents Australia’s implementation of the Rome Statute and the source of our universal jurisdiction over international crimes.
The case highlights some complex questions – that arguably linger – about the significant procedural hurdles facing the prosecution of international crimes in Australia.
The case could also have been an important chapter in the Court’s relationship with international law which was once described by Professor Charlesworth as ‘ambivalent’ and ‘lacking passion’. The special questions agreed upon by the parties concerned issues at the intersection of administrative and international law. They also raised important questions about the status and content of the rules of customary international law surrounding head of state immunity for international crimes – a topic at the forefront of international debate in the wake of International Criminal Court (ICC) Appeals Chamber’s controversial decision in Al-Bashir.
However, the parties never made it past the starting block with an important, and in many ways unforeseen, procedural issue leading to the prompt dismissal of the application. This post provides a brief overview of the judgments and the significant ramifications they have on the future prosecution of genocide, war crimes and crimes against humanity in Australia.
Background – the case against Aung San Suu Kyi
In March 2018, Mr Taylor, a private citizen acting on behalf of a group of Rohingya Muslims in Australia (Plaintiff), lodged a charge sheet and summons in the Melbourne Magistrates’ Court. The documents alleged that Aung San Suu Kyi, who was in Australia at the time for an ASEAN meeting, had committed the crime against humanity of deportation and forcible transfer of a population.
That same day, the Plaintiff requested that the Attorney-General consent to the prosecution. Under s 268.121, a proceeding under the Division must ‘not be commenced without the Attorney-General’s written consent’ and ‘may only be prosecuted in the name of the Attorney-General’.
Unsurprisingly, the Attorney-General refused consent on the basis of the full immunity enjoyed by incumbent heads of state and foreign ministers from foreign criminal proceedings.
The Plaintiff then commenced proceedings in the original jurisdiction of the High Court under s 75 (v) of the Constitution, seeking a writ of certiorari quashing the decision of the Attorney-General and a writ of mandamus compelling the reconsideration of the request. The crux of the application was that first, the Attorney-General had denied the Plaintiff procedural fairness and, second, that he had taken an erroneous view of the content of international law as it applies to the immunity of heads of state for international crimes. The latter argument drew on the high ratification rate of the Rome Statute and sections of the Appeals Chamber decision in Al-Bashir to argue that the law had developed since the International Court of Justice’s 2002 Arrest Warrant Decision. On this basis, the Plaintiff argued that the Attorney-General was in error to say Aung San Suu Kyi enjoyed full immunity.
Taylor is not the first time a private citizen has commenced a prosecution for international crimes – although, after last week’s decision it is likely to be the last. In 2011 Arunachalam Jegatheeswara sought to commence a prosecution of Sri Lankan President, Mahinda Rajapaksa, for war crimes and crimes against humanity. As in Taylor, consent was refused on the basis of obligations Australia owed under international law to afford heads of state full immunity.
The attempted prosecution of President Rajapaksa prompted some academics to question the merits of Australia’s implementing legislation. In their 2011 article, Hood and Cormier provided a detailed analysis of Division 268 and raised concerns over the hurdles facing the prosecution of these crimes in Australia, namely the level of control afforded to the Attorney-General and the limited avenues for review of a decision to refuse consent. At the time of the short lived case against President Rajapaksa, no one seemed to question the ability of Jegatheeswara to commence a private prosecution under Division 268.
New hurdles raised ‘at the heel of the hunt’
At the outset of the hearing, the Court requested the parties address a threshold issue as to whether s 268.121 of the Criminal Code exhibits a contrary intention to s 13 of the Crimes Act therefore precluding ‘the private prosecution’ of an offence in Division 268. As framed by Edelman J at  of his dissent, the key question was:
‘is an offence “prosecuted in the name of the Attorney-General” if, with the consent of the Attorney-General, a private person prosecutes the offence in the name of the Attorney General?’
By majority, the Court made orders on the day that it was unnecessary to answer any of the special questions because the Court was required to dismiss the application on the basis that a private person, such as Mr Taylor, cannot bring prosecutions under the Division.
The question of private prosecutions had been raised, as Edelman J described, ‘at the heel of the hunt and towards the conclusion of [the Attorney-General’s] submissions’ (see ). Indeed, during the oral hearing, Nettle J noted that, at best, the Attorney had raised the point ‘somewhat obliquely’ (at 35). The very fact that both parties, and particularly the Attorney-General, had not identified this argument (in any great detail), indicates that its significance was perhaps unforeseen or, at least, underestimated.
The Majority Judgment
The majority (Kiefel CJ, Bell, Gageler and Keane JJ) held that s 268.121(2) of the Criminal Code ‘does exhibit a contrary intention for the purpose of s 13 of the Crimes Act so as to preclude the private prosecution of an offence against Div 268’, therefore dismissing the application.
Their Honours, found that the words ‘in the name of the Attorney-General’ represented an ‘absolute restriction upon the right to prosecute’ (see ). The words ‘in the name of’ consistently connote ‘exclusivity of the vesting of authority to prosecute’ and ‘define exhaustively’ who can prosecute Division 268 crimes. This displaced the presumption in s 13 of the Crimes Act (see ). Therefore, issues of immunity aside, it was never open for the Attorney-General to provide consent to the commencement of the prosecution (see ).
Emphasis was placed on the fact that in the Explanatory Memorandum to the War Crimes Amendment Act 1998, it was said the ‘nature’ of offences in the War Crimes Act 1945 made it ‘desirable to exclude the possibility of private prosecutions’ (see ).
The Minority Judgments
Justices Nettle and Gordon delivered a joint judgment. Justice Edelman also penned a dissent, noting that despite his Honour’s partiality for the majority view at the time of hearing, more detailed thought prompted him to conclude that there was no intention to depart from ‘the plain semantic and historical meaning of the words in s 268.121(2)’ (see ).
Both minority judgments emphasised that there is nothing in s 268.121 that expressly states a private person cannot commence a proceeding for an offence under the division. Justice Edelman noted the section comes ‘as close as possible to expressly including relator proceedings without using the word “relator”’ (see ). It is important to note that his Honour’s judgment discusses in detail why the term ‘private prosecution’ should be avoided and ‘relator proceedings’ preferred.
Their Honour point out that if the intention was that proceedings must be brought by the Attorney-General, the section would have expressly required that (see ).
Reference is made in both minority judgments to the implementing legislation in the United Kingdom, New Zealand and Canada. Unlike Canada, the Australian provisions do not require prosecutions be commenced ‘only by the Attorney-General’. Instead, Australia’s legislation is similar to the UK and New Zealand legislation which are generally taken to retain the possibility of private prosecution, so long as consent is obtained (see , -). Justice Edelman described the approach of other jurisdictions to the implementation of the Rome Statute as ‘the most immediate and important matter of context in which [the sections] must be interpreted’ (see ).
Justices Nettle and Gordon reasoned that if prosecutions could only be commenced by the Attorney-General, or its delegate/s, there ‘would be little point in expressly providing in s 268.121(1) that proceedings cannot be commenced without the consent of the Attorney-General’ (see ). Similarly, the stringent privative clause in s 268.122 seems to guard against a private person continuously disputing a decision by the Attorney-General (see ).
In respect of the Explanatory Memorandum to the War Crimes Amendment Act, their Honours were reticent to rely on extrinsic material where no ambiguity arose (see , ). However, even if one were to read the War Crimes Act in line with the Memorandum, that provision is distinct to Division 268 of the Criminal Code. Notably, Division 268 requires consent and insulates a decision to refuse consent from review. The fact that these features appear in Division 268 but not in the War Crimes Act indicates that there was scope for some form of private prosecution to be consented to (see ).
The future of Division 268 prosecutions
The majority, at  of its judgment, stated in strong terms that for a private person to be free to bring a prosecution ‘would do nothing to advance the legislative purpose of facilitating exercise of Australia’s international rights’. Instead, it would ‘have the real potential to embarrass Australia internationally’.
Justices Nettle and Gordon took great issue with this suggestion. In their view, ‘parliament could readily have viewed the importance of prosecuting these crimes – because they are of such general concern – as supporting, rather than detracting from, the desirability of private prosecutions’ (see ).
Of course, the ability of private individuals to bring potentially vexatious proceedings for international crimes without any oversight would, obviously, be problematic. There are legitimate questions of diplomacy and national security to consider.
However, the prosecution of international crimes in Australia has always faced a number of hurdles (or safeguards depending on how you see it). Division 268 has always required consent, limited the avenues of review and, for example, not required the provision of written reasons. Our legal system also provides tools to deal with vexatious litigants and for the CDPP to ‘take over’ private prosecutions (s 9(5) of the Director of Public Prosecutions Act 1983 (Cth)).
The transcript of the hearing reveals a concern from the bench about where the interest in the prosecution of international crimes lies – with Australia as a nation, or with aggrieved individuals? However as the minority outline, the well-established notion of private or relator proceedings does not mean individuals assume the responsibility, or the power, to prosecute war criminals against whom they seek personal vindication without oversight.
The establishment of a permanent international criminal court was a turning point in international criminal justice. It also heralded an important turning point in Australian law which had, for example, previously not recognised genocide as a crime in our domestic law: Nulymarimma v Thompson (1999) 96 FCR 153.
On paper, the implementation of the Rome Statute in Australia seemed like a ‘quiet revolution in substantive and procedural criminal laws’. Division 268 represents Australia’s support of a system of international criminal justice premised on complementarity and the primary role of the State in investigating and prosecuting international crimes. However, despite our strong principled support of that system, our track record when it comes to the implementation of the law and the prosecution of crimes is more chequered.
The majority decision in Taylor represents the removal (by a slim majority) of the ‘long-established’ ability for private persons to commence prosecutions. By removing the ability for individuals to prompt a consideration of international crimes, the decision dilutes, yet again, Australia’s capacity to contribute to a system of international criminal justice in a robust way.
Holding heads of state and foreign ministers accountable for international crimes will always be an uphill battle, not least because of the immunities that, even if arguably eroded at the international level, remain in respect of domestic courts. However, it is clear that in Australia, the procedural high jump built into Division 268 represents a more significant hurdle than the status of customary international law.
In his submissions for the Plaintiff, Ron Merkel QC quoted Lord Wilberforce’s judgment in Gouriet v Union of Post Office Worker  AC 435 at 437where his Lordship noted that private prosecutions ‘remain a valuable constitutional safeguard against inertia or partiality’.
Indeed, when it comes to the prosecution of international crimes in Australia, private prosecutions have historically been an important source of momentum against impunity. Regardless of how one views the merits of the majority and minority constructions of Division 268.121, it is clear the decision in Taylor will compound the inertia that characterises Australia’s prosecution of international crimes.
Keilin Anderson is an Assistant Editor of the ILA Reporter. The author previously provided some pro bono assistance to the Plaintiff’s legal team. The views expressed in this post represent her own.