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.
The majority (Kiefel CJ, Bell, Gageler and Keane JJ) held that it was unnecessary to answer the questions in the special case because s 268.121(2) of the Code does show a contrary intention for the purposes of s 13, meaning that private prosecutions cannot be brought for offences against div 268. After stating the procedural history of the case (at ff), the majority turned to the construction of s 268.121 and its legislative history. Division 268 was introduced to implement Australia’s international obligations under the Rome Statute of the International Criminal Court (1998) by replicating each of the offences against international law contained in the Rome Statute and making them offences against Australian law, to allow Australian courts to prosecute those offences first in line with the ‘principle of complementarity’ (which requires that states be willing and able to prosecute those international crimes, with the ICC stepping in only where a state is ‘unwilling or unable’) (see ). Div 268 explicitly states that its aim is to ensure that Australia can try offences against the Rome Statute and that the provision does not affect the ‘primacy’ of Australia’s right to exercise its jurisdiction (at ).
The majority then moved to the general procedure for prosecutions of offences under Commonwealth law as the background to s 13, emphasising that s 68 of the Judiciary Act 1903 (Cth) applies that law to State and Territory criminal proceedings by investing those courts with federal jurisdiction, and doing so ‘by picking up specified categories of State and Territory laws’ (see at ff). Section 69 provides that indictable offences against Commonwealth law will be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or another officer appointed by the Governor-General, and this is an exclusive right and duty vested in the Attorney-General or appointed officer (at ff). This exclusive right and duty is also ‘recognised’ by s 13 of the Crimes Act, which, where it applies, allows a person other than the Attorney-General or appointed officer to institute proceedings for an offence against Commonwealth law (at ). The form of words ‘may only be prosecuted in the name of’ is common in earlier Commonwealth laws to restrict the right to prosecute (see ff). Its use in s 268.121(2) connotes the ‘exclusivity of the vesting of authority to prosecute’ and to ‘define exhaustively’ those office-holders who can prosecute the offence, here the Attorney-General or an appointed officer (at ). The majority then rejected the plaintiff’s argument that the exclusion in s 268.121(2) related only to the second stage of the procedure, to allow a prosecution to proceed up to the committal stage: there is no basis in the text for this argument, and the section relates to the total prosecutorial process (at ff). Moreover, even if s 268.121(2) were confined in this way, it would not advance the legislative purpose of ‘facilitating the exercise of Australia’s international right’ and instead leave ‘real potential to embarrass Australia internationally’ (at ).
Nettle and Gordon JJ, in dissent
Nettle and Gordon JJ held that s 268.121(2) did not exclude private prosecutions. After reviewing the relevant legislative provisions (at ff), Nettle and Gordon JJ emphasised that s 13 replaced the common law right held by private persons to institute criminal proceedings with a ‘statutory presumptive right’ that fitted with modern trial procedures (at ). In its common law form, that right depended on the nature of the offence, and s 13 both generalised that right and ‘adapted it to modern criminal procedure’, and requires that any exclusion of the right appear in express terms or as a necessary implication (at ). The text of s 268.121(2) neither expressly states that a private person cannot commence a proceeding for an offence against Div 268, nor imply that that is the case (at ). Instead, it requires that proceedings not be commenced without the Attorney-General’s written consent, implying that a person can bring proceedings if they first obtain the consent of the Attorney-General, and the requirement that an offence be prosecuted ‘in the name of’ the Attorney-General is consistent with a private person bringing proceedings with the Attorney-General’s consent (at ). Nettle and Gordon JJ also rejected the Commonwealth Solicitor-General’s argument that s 268.121(2) required the proceedings be brought by the Attorney-General or by a delegate of the Attorney-General: that would ‘fly in the face of the text’, and the drafters would have used the word ‘by’ instead of a form of words that suggests ‘on behalf of’ or ‘citing the authority of’ (at ).
Nettle and Gordon JJ then contended that the form of words used in s 268.121(2) had a long, largely consistent meaning in English and Australian law (at ff). In England, most prosecutions were historically for practical purposes brought by private subjects (at ), and requirements for consent were not historically used to exclude rights of private prosecution (at ). In pre-Federation Australia, the position remained largely the same (at ff), and in colonial New South Wales where the Attorney-General declined to exercise a power to prosecute a private person could apply to the Supreme Court to commence a proceeding ‘in the name of’ the Attorney-General (at ). Nettle and Gordon JJ suggested that s 268.121’s reference to an offence being prosecuted in the name of the Attorney-General pointed to the distinction between summary and indictment proceedings, where the latter relates to higher crimes that must be brought in the Attorney-General’s name as a plea of the Crown, would require the consent of the Attorney-General but not necessarily exclude a right of private prosecution (at ff).
Turning to contextual factors, Nettle and Gordon JJ noted that the drafters would have almost certainly read and considered the approaches taken by New Zealand, Canada and the United Kingdom in implementing the Rome Statute obligations, and thus did not follow the Canadian approach of explicitly stating that prosecutions can only be conducted ‘by’ the Attorney-General (at ). Further, if s 268.121(2) were to be read in this way then it is unclear why it would not also prevent the Commonwealth DPP, the police or any Special Prosecutor from also bringing proceedings; the better construction is that the section does not exclude prosecutions by people other than the Attorney-General (at ). Moreover, if s 268.121(2) had intended to restrict prosecutions to those brought ‘by’ the Attorney-General, ‘there would be little point’ in expressly requiring the ‘consent’ of the Attorney-General (at ).
Nettle and Gordon JJ also rejected the suggestion that the consent requirement was drafted to ensure the Attorney-General control s 268.121 proceedings, as if that were the case it would be directed to delegates or be drafted to require a delegation of power before proceedings, rather than in a form that has been used consistently to direct private persons to seek the consent of the Attorney-General (see , ).
Their Honours also rejected the argument that s 268.121 was to have the same meaning as that in s 12 of the War Crimes Act 1945 (Cth), which states that offences in the Act ‘may only be prosecuted in the name of the Attorney-General …’ (at , ): s 12 merely leads to the question of what ‘prosecute’ means here, and this form of words has long been used to only forbid proceedings in the name of some other person besides the Attorney-General (at ). Further, s 12 does not have an ambiguous or obscure meaning, so the meaning outlined in the explanatory memorandum should not be referred to (at ). Finally, even if s 12 had that meaning, s 268.121 is different in context and form from s 12: it uses ‘consent’ in regards to the commencement of proceedings, and the absence of these words in s 12 means those terms should be given their ordinary and natural meaning, rather than read against the background of s 12 (at ).
Nettle and Gordon JJ then rejected the argument that the special nature of the offences created by both the War Crimes Act and div 268 is a ‘powerful indication’ that Parliament intended only the Attorney-General would prosecute them (at ). Given these crimes are ones of universal jurisdiction, Parliament could have instead thought that supported the desirability of private prosecutions (at ), and while the offences are special, their special nature does not clearly indicate the intention to exclude private prosecutions (at ). Further, s 13 has neither the express terms nor necessary implications of excluding the right to private prosecution, and the special nature of the offences does not provide that implication (at ).
Concluding, Nettle and Gordon JJ stated that they would have heard the plaintiff’s argument on whether the Attorney-General’s refusal to grant consent was reviewable, without taking any position on the merits of that argument (at ).
Edelman J, in dissent
Edelman J likewise would have continued the hearing and reserved his decision on the preliminary issue, and now held that the ‘unique international context’ did not reveal Parliament’s intention to depart from the plain and historical meanings of the words in s 268.121; that a private prosecution includes proceedings controlled by the Attorney-General and are brought for and on behalf of the Attorney-General (at , ). The drafting of s 268.121 with reference to similar enactments in the UK, New Zealand and Canada, and the departure from the Canadian approach of using ‘only by’ in favour of the UK and NZ wording that was consistent with the long history of relator prosecutions, indicated that the Parliament intended for the Commonwealth Attorney-General to control proceedings under div 268 without abolishing the ability of private persons to commence those proceedings (at ).
Edelman J turned first the long history of private prosecutions in English civil law (at ff) and criminal law (at ff), before examining the nature of relator proceedings. Edelman J noted that this involves a private person, company or public authority ‘relating’ facts to an Attorney-General that show the commission of an offence (at ), and that any proceeding is then brought in the name of the Attorney-General in that ‘it is by the Attorney-General and on [the relator’s] behalf’ (at ). Edelman J then examined the legislative scheme in Australia for relator proceedings for Commonwealth offences, governed by s 13 of the Crimes Act 1914 (Cth) and ss 68 and 69 of the Judiciary Act 1903 (Cth) (see at –).
Moving to the text and purpose of s 268.121, Edelman J noted that the purpose of div 268 was to create offences that are of international concern to create in Australia a complementary jurisdiction to match that of the International Criminal Court (at ). The text of s 268.121 did not suggest the exclusion of relator proceedings, and instead come as close as possible to expressly including them, without using the term ‘relator’: as a relator proceeding is one prosecuted in the name of the Attorney-General, it falls precisely within the words of s 268.121 (at ff). Edelman J then rejected the Solicitor-General’s contention that s 268.121 excluded private prosecutions on the basis of s 12 of the War Crimes Act 1945 (Cth) and its explanatory memorandum: ‘private prosecution’ is a misleading term because they are prosecutions brought by any member of the public, and it can mean a number of different things (at ), and the EM’s use of it is unclear (at ). Even if that usage did include relator proceedings, that reference in the EM is not decisive of the meaning of s 12, as it would be contrary to the plain meaning of that text and the history of the expression ‘in the name of the Attorney-General’, and in any case would not be consistent with the immediate context prior to the enactment of s 268.121 (at ).
Edelman J concluded by stating he would have allowed the case to progress past the preliminary issue (at ).
|High Court Judgment|| HCA 30||11 September 2019|
|Result||Special case questions unnecessary to answer|
|High Court Documents||Taylor|
|Full Court Hearing|| HCATrans 127||19 June 2019|
|Directions Hearings|| HCATrans 42||8 March 2019|
| HCATrans 244||19 November 2018|
| HCATrans 201||3 October 2018|
The questions stated in the revised special case filed on 26 November 2018 be answered as follows:
- Is the defendant’s decision to refuse to consent under s 268.121 of the Criminal Code (Cth) to the prosecution of Ms Suu Kyi insusceptible of judicial review on the grounds raised in the amended application?
Answer: Unnecessary to answer.
- If “no” to question 1, did the defendant make a jurisdictional error in refusing consent under s 268.121 of the Criminal Code to the prosecution of Ms Suu Kyi on the ground that Australia was obliged under customary international law to afford an incumbent foreign minister absolute immunity from Australia’s domestic criminal jurisdiction (the asserted immunity) for one or more of the following reasons:
a. Under customary international law as at the date of the defendant’s decision, the asserted immunity did not apply in a domestic criminal prosecution in respect of crimes defined in the Rome Statute?
b. By reason of:
- the declaration made by Australia upon ratifying the Rome Statute;
- Australia’s treaty obligations under the Rome Statute; and/or
- the enactment of the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth),
the obligations assumed by Australia under international law were such that the defendant was not entitled to refuse, on the basis of the asserted immunity, to consent to the domestic prosecution of Ms Suu Kyi in respect of crimes defined in the Rome Statute
- By reason of:
- the declaration made by Australia upon ratifying the Rome Statute;
- Australia’s treaty obligations under the Rome Statute;
- the enactment of the International Criminal Court Act and the International Criminal Court (Consequential Amendments) Act; and/or
- the Diplomatic Privileges and Immunities Act 1967 (Cth), the Consular Privileges and Immunities Act 1972 (Cth) and the Foreign States Immunities Act 1985 (Cth),
the defendant was not entitled under Australian domestic law to refuse, on the basis of the asserted immunity, to consent to the domestic prosecution of Ms Suu Kyi in respect of crimes defined in the Rome Statute?
Answer: Does not arise.
- If “no” to question 1, did the defendant make a jurisdictional error in refusing consent to the prosecution of Ms Suu Kyi on the ground that he failed to afford the plaintiff procedural fairness?
Answer: Does not arise.
- What relief, if any, should be granted?
Answer: None. The amended application should be dismissed with costs.
- Who should bear the costs of the special case?
Answer: The plaintiff.