The High Court of Australia (HCA) recently dismissed a private prosecution of Aung San Suu Kyi – the State Counsellor of Myanmar – for alleged crimes against humanity against Rohingya people in contravention of the Australian Criminal Code. The judgment sheds light on the shortcomings of Australia’s domestic implementation of the Rome Statute of the International Criminal Court (Rome Statute) and raises important questions about the future of prosecutions of international crimes under Australian law.
On 16 March 2018, Mr Taylor, a private citizen of Australia, lodged an application in the Registry of the Melbourne Magistrate’s Court alleging that Aung San Suu Kyi had committed the crime against humanity of the forcible transfer of population in contravention of section 268.11 of the Australian Criminal Code. Under section 268.121, the prosecution of these types of international crimes may only proceed with the consent of the Australian Attorney-General. Section 268.121 provides that:
(1) Proceedings for an offence under this Division must not be commenced without the Attorney-General’s written consent.
(2) An offence against this Division may only be prosecuted in the name of the Attorney-General.
Accordingly, Mr Taylor requested the consent of the Australian Attorney-General to commence the prosecution. The Attorney-General refused consent based on Australia’s observation of the principle of head of state immunity, which renders Aung San Suu Kyi “inviolable and immune from arrest, detention or being served with court proceedings”.
On 23 March 2018, Mr Taylor brought an application in the original jurisdiction of the HCA arguing that the Attorney-General erred in refusing to provide consent to the prosecution and requested the HCA to quash the Attorney-General’s decision. Specifically, the plaintiff submitted that, by ratifying the Rome Statute, “Australia took upon itself, as a matter of international obligation, not to recognise immunity based on official capacity for Rome Statute crimes in domestic criminal proceedings”. This is because article 27 of the Rome Statute removes immunity based on a person’s official capacity (e.g. Head of State).
The parties agreed to a set of special questions to be determined by the HCA, including whether the Attorney-General’s decision to refuse consent was erroneous by virtue of Australia’s ratification of the Rome Statute. However, the plaintiff failed to overcome the threshold issue of whether a private prosecution may be brought without the consent of the Attorney-General. The HCA, by a narrow four to three majority, therefore found it unnecessary to answer the remaining special questions regarding the current status of the principle of head of state immunity for international crimes before domestic courts and under principles of customary international law.
The HCA judgment
The joint judgment by the majority (Chief Justice Kiefel, Justices Bell, Gageler and Keane) dismissed the application, holding that section 268.121(1) prevented Mr Taylor from bringing a prosecution otherwise than with the consent of the Attorney-General. While observing that the purpose of Australia’s implementation of Rome Statute crimes into domestic law is to “[facilitate] exercise of Australia’s international rights under and pertaining to the Rome Statute”, the majority reasoned that this must be understood in light of domestic criminal procedure. After reviewing Australian legislation and case law on the vesting of authority to prosecute indictable offences, the majority held that the correct interpretation of section 268.121(1) “excludes the capacity of any other person to commence any prosecution of any offence under Div 268”.
Justices Nettle and Gordon, delivering a joint dissenting opinion, reasoned that under Australian law any “exclusion of the right of private prosecution must now appear in express terms or at least as a matter of necessary implication”, which section 268.121 does not do. Justice Edelman, delivering a separate dissenting opinion, reasoned that “the nearly unique international context” of section 268.121 does not reveal any intention on the part of the Parliament of Australia to bar private prosecutions for international crimes and therefore does not abrogate the right of an individual to bring a private prosecution for international crimes.
Moving forward: reforming section 268.121
The Rome Statute is based on the principle of complementarity – the idea that the jurisdiction of the International Criminal Court (ICC) to prosecute international crimes is complementary, rather than supplementary, to that of national courts. The principle is designed to encourage states to implement legislation to try defendants for the international crimes over which the ICC has jurisdiction. While Australia has implemented legislation to prosecute these crimes, this case shows the limitations that section 268.121 places on the initiation of private prosecutions for international crimes in Australia.
This is not the first time that section 268.121 has prevented the commencement of a private prosecution for international crimes under Australian law. In October 2011, a private citizen lodged an application against the then President of Sri Lanka – Mahina Rajapaksa – alleging the commission of crimes against humanity and war crimes during the ongoing conflict between the Sri Lankan Government and the Tamil Tigers. The Attorney-General refused consent, citing Australia’s obligation to adhere to the principle of head of state immunity.
Lawyers and academics have queried whether the absence of guidelines or criteria according to which the Attorney-General may exercise his or her discretion in section 268.121 provides the Attorney-General with a “carte blanche”, which may lead to inconsistent exercise of the discretion and a susceptibility to politically-motivated decision-making. Past suggestions for reform of section 268.121 include introducing criteria to guide the Attorney-General’s exercise of discretion. The Human Rights Law Centre has advocated for the removal of the requirement that the Attorney-General’s consent be obtained in order for a private prosecution to proceed, highlighting that this discretion gives the Government the power to block prosecutions for alleged crimes in which it may be complicit.
It is hoped that the judgment in this case will prompt further reflection on the continued operation of section 268.121 and may lead to legislative amendments aimed at broadening its application to ensure that ending impunity for international crimes does not succumb to procedural obstacles.