The High Court has published its reasons for its 19 June answers to a special case on private prosecutions of foreign officials at the International Criminal Court. Section 13(a) of the Crimes Act 1914 (Cth) provides that a person can institute trial proceedings against another person for an indictable offence against a law of the Commonwealth, unless that Act creating that offence shows a contrary intention. Section 268.121(1) of the Criminal Code provides that offences against Div 268 of the Code, which includes, among other things, crimes against humanity, cannot be commenced without the consent of the Attorney-General of the Commonwealth. On 16 March 2018, the plaintiff attempted to commence a prosecution against Myanmar State Counsellor Aung San Suu Kyi, alleging that Suu Kyi had committed crimes against humanity, contrary to Div 268.11, by lodging a charge sheet and draft summons at the Melbourne Magistrates Court. On the same day, the plaintiff also requested the Attorney-General of the Commonwealth’s consent to begin the prosecution, which the Attorney-General declined to order. On 23 March, the plaintiff commenced proceedings against the Attorney-General in the High Court’s original jurisdiction, seeking writs to quash the decision not to consent to the prosecution and to compel the Attorney-General to reconsider the request.
A majority of the Court held that the Attorney-General’s decision was the only one legally open on the basis that div 268 offences can only be prosecuted by the Attorney-General, and thus div 268 provides a contrary intention for s 13(a), precluding any private prosecutions for offences against div 268. Nettle and Gordon JJ and Edelman J dissented. Continue reading