Lidia Thorpe

I, firstly, acknowledge that we stand on the unceded, sovereign lands of the Ngunnawal and Ngambri people, the custodians of this land, sea and sky country. This country has deep scars and memories of the massacres from the genocidal Frontier Wars. We feel it all around us. This building has deeply unsettling energy. It was built on a sacred gathering site, yet those who are in power here routinely consent to the continued violence against our mother country and our people and all those who want to protect and live by the law of the land. The Frontier Wars have never ended: same war, different weapons—same oppression of our people for access to our land and our resources for the profit of a few.

The 1991 Royal Commission into Aboriginal Deaths in Custody referred to the genocide convention, and the B ringing them_ _h ome report released in May 1997 provides 689 pages of damning indictment of the genocidal policies used against First Peoples in this country, with a whole chapter on contemporary separations. The report found that the removal of First Peoples constituted genocide as defined in the convention, yet, each year, our children are still being snatched at record rates. Our people are still being dispossessed of our country, forced into homelessness and jails, on our own lands, at the highest rates in the world. We have discriminatory living conditions, life experiences and racism. All the while, our land and sacred sites continue to be pillaged. This is the continued genocide of our people, of my people.

The lawyer Raphael Lemkin, who coined the concept of 'genocide' after the Second World War, literally used the massacres of First Peoples in Tasmania as a key example. As time goes on, more and more evidence of this country's dark, whitewashed history is being revealed. Just last month, the Guardian finished their eight-year-long collaboration project with the University of Newcastle called 'The killing times'. The report showed definitive proof that at least 10,657 people were murdered in at least 438 colonial frontier massacres. About half of all massacres of Aboriginal people were carried out by police and other government agents. Many others were committed by settlers acting with approval of the state. What is now called Victoria, alone recorded at least 50 frontier war massacres. My mob, Gunditjmara and Djab Wurrung, my grandmother's country, saw 70 Gunditjmara clans reduced down to seven. It is past time to let the truth be told and to stop denying genocide when it is clear before our eyes. It is time for everyone in this country to learn their local history and see what crimes took place where you live, where you sleep, where you work and where you go to school. Have a look at your own backyard, Aus.

The late Kevin Gilbert, a Wiradjuri poet, artist and activist, told the story of his people's genocidal suffering in a poem called 'On the road to Queanbeyan', which is not too far from here:

I look at the open fields and see

the space where my people used to be

I see the scars of wounded ground

I cry as I hear the death call sound

of curlew mourning by.

The bill before us today, the Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024, is about access to justice. It ensures that the crime of genocide is able to be prosecuted in domestic courts without political interference.

This bill embodies a commitment to transparency and accountability and an adherence to international human rights obligations, including the genocide convention, which established a framework for states to prevent and punish acts of genocide or crimes against humanity. It mandates that all perpetrators, whether private individuals, public officials or political leaders, must be held accountable. Yet, when the Australian government ratified the genocide convention in 2002, they put in an extra sneaky, slimy provision that only the Attorney-General can bring a prosecution for genocide, that their decision cannot be challenged and that it cannot be applied to historical events. This means the Attorney-General, Mark Dreyfus, a single white man in this place, a political officer of the government, is the only person in the whole country who can make that decision, and no-one can question this. This goes against to the very intention of the convention. The Attorney-General is not required to follow any criteria for this decision-making, can make this decision in secret, and there is no possibility for judicial oversight, appeal or merits review. The Australia Tibet Council, in its submission, pointed out:

In its application, the Attorney-General's fiat creates silence.

The Tibetan experience has shown that silence only emboldens the perpetrators of human right abuses and genocide to continue their criminal policies with impunity.

This bill contains two simple demands: to remove the Attorney-General as the sole person in this country who can decide whether the crime of genocide can be prosecuted in the courts of this country; and to lift the block on the appeal or review of these decisions. The main bill addresses atrocity crimes of genocide that occurred domestically, and the circulated amendment on sheet 3055 upholds the principle of universal jurisdiction and ensures the fiat is removed for crimes that occurred in a foreign country when the individual accused is neither an Australian citizen nor a resident.

I want to thank everyone who made a submission to this inquiry and who provided evidence last year and acknowledge the difficulty for you in talking about crimes against humanity and genocide of your people. We heard so many stories from experts and human rights groups but most importantly from First Peoples in this country, who spoke to the genocide taking place, as well as from many others, including those from Palestine, West Papua, Tibet, Xinjiang, Sri Lanka, Myanmar and many more.

The inquiry made clear that the fiat stands in the way of justice and is an almost insurmountable obstacle for victims of atrocity crimes. Every single one of the witnesses, besides the Attorney-General's Department itself, supported the measures in the bill. Despite overwhelming support for this bill to pass, the committee ignored the voices of our people, disregarded the cries of those still living under the shadow of genocide and turned its back on the wisdom and pain shared by communities and experts, historians and survivors alike. They ignored legal and human rights experts. They ignored best evidence. This is to protect themselves. It is a protection racket. It's to protect their friends overseas and to keep lying about the history and reality.

This bill was supposed to be voted on last November and to be witnessed by First Peoples and activists from across the country who travelled here for this purpose—my brothers and sisters, aunties and uncles from Palestine, Kanaky, Tibet, West Papua, and the Sikh community and of course our own elders, who have looked after their land and our communities for many thousands of years. Genocide survivors and their allies came from across this continent and from overseas to stand together and bear witness to whether this government would stand true to its supposed commitment to prevent and end genocide. Instead of seeing the bill come to a vote, I was censured and then suspended for calling out genocide and racism in this very place.

I'm not alone in being punished. Over the past month, we have witnessed systemic, escalating attacks on cultural institutions, academics, artists, journalists and workers across the country for fighting against white supremacy, apartheid and genocide. Artists and academics have been censured, political dissent discredited and silenced, workers fired, and activists criminalised through a suite of legislation at both federal and state levels. The primary targets of these measures have been racialised communities speaking up against the realities of their own oppression.

Today is another day in the colony, because we will no doubt see the Labor and the coalition parties double down on their domestic and international policies of genocide, genocidal denial and blatant disregard of human rights obligations. The fact that both major parties are unwilling to remove the power from a single politician who can make decisions in secret without scrutiny, transparency and accountability or appeal avenues shows that this country is complicit. We have seen in the year how, instead of standing up against genocide, crimes against humanity and war crimes, Labor and the coalition would rather support their dear friends and allies like the United States and Israel.

If you don't support this bill, you are complicit in the ongoing genocide of my people and around the world, and, one day, you will all be held accountable because you've signed up to a convention. You are breaking the law. You are breaking international law, and each and every one of you who do not support this bill today will be personally held accountable and responsible and will be called to a court of law to answer—maybe not today, maybe not tomorrow, but it will come.

Michaelia Cash

I rise to speak on the Criminal Code Amendment (Genocide, Crimes Against Humanity and War Crimes) Bill 2024. The coalition does not support the bill. Let me take the Senate through the reasons as to why. In technical terms, what the bill will do, if it was passed through the Senate, is remove what is a longstanding feature of our common law where the Attorney-General of Australia, as Australia's first law officer, must consent to the prosecution of certain serious crimes. These are crimes of the highest order, including genocide, crimes against humanity and war crimes. As I said, these are serious crimes.

As with other offences, the decision to initiate a prosecution for any such offence would, of course, be made independently either by the DPP or by a person seeking to commence a private prosecution. Given the serious nature of these crimes, almost invariably, however, these crimes raise important considerations relevant to Australia's national security, foreign relations and matters of international law that govern the actions of nation states. Therefore, legal proceedings in respect of these alleged offences may directly impact the interests of all Australians. It is therefore entirely appropriate that the executive government, through the Attorney-General, have the opportunity to consider the impact of any such prosecution on the national security and foreign relations interests of all Australians. That is what this bill seeks to remove. So everything I just said in relation to—

Lidia Thorpe

Bullshit! That's bullshit—

Michaelia Cash

the seriousness of this bill—

Andrew McLachlan

Senator Thorpe, can I call you to order. This matter will probably go into committee and, therefore, you will have another opportunity to prosecute your argument. Senator Cash.

Michaelia Cash

It is one thing to talk to a bill in this Senate. It is another thing to properly scrutinise what the contents of the bill will do as opposed to the arguments that may be put forward by the person who is putting forward the bill. That is what the coalition has done. We have looked at the bill. We have analysed each section of the bill, and the reason we are not supporting it is because of what it does. As I said, put simply, the bill that we have before us—in other words, the legislation as drafted and the effect of the legislation, should it pass through this place—is, quite frankly, an attempt to further open up our courts to abuse by activists who engage in lawfare to pursue a political agenda.

Senator Thorpe and the Greens want to allow activists to use our courts to commence private prosecutions for some of the most serious crimes on our statute book. Those crimes include genocide, crimes against humanity and war crimes. This is what this bill actually does. Senator Thorpe and the Greens want to allow activists to use our courts to commence private prosecutions for some of the most serious crimes on our statute book, and they want this to occur without oversight. This is what the legislation does. They want to remove the important safeguard and the longstanding feature of our common law that allows the national security and foreign relation interests of all Australians—not just a few Australians—to be taken into account.

Instead, what this bill would do, if passed on behalf of Senator Thorpe and the Australian Greens, is put Australians' interests second. They want to give primacy to the narrow, sectional interests of their political supporters and, in particular, given the nature of the serious crimes that we are referring to—

Lidia Thorpe

'What an insult! Cash, what an insult.

Andrew McLachlan

Senator Thorpe, please! I have given you a reasonable amount of latitude. Let Senator Cash finish. Senator Cash, please resume.

Michaelia Cash

What this bill would do, if passed—and I am talking to the bill as drafted as opposed to merely making a statement—is put the interests of all Australians, in relation to these serious crimes, second. What it would do is give primacy to the narrow, sectional interests of supporters of Senator Thorpe and the Australian Greens.

Lidia Thorpe

Fearmongering. Racist bullshit.

Andrew McLachlan

Yes, Senator McKenzie?

Bridget McKenzie

On a point of order. Senator Thorpe has continually sworn in this chamber, and I would ask you to seek her to withdraw the swearwords.

Andrew McLachlan

Senator Thorpe, please—

Lidia Thorpe

I withdraw.

Andrew McLachlan

Thank you. Senator Cash, please resume.

Long debate text truncated.

Andrew Bragg

The question is that the motion to suspend standing orders be agreed to.

Sue Lines

The question now is that the remaining stages of the bill be agreed to and the bill be now passed.

Sue Lines

Pursuant to order, I will put the remaining stages of the bill.

Penny Wong

I move:

That this bill be now read a first time.

Question agreed to.

Bill read a first time.

Sue Lines

I will now deal with the second reading amendment circulated by the Australian Greens. The question is that the Australian Greens amendment on sheet 3270 be agreed to.

Australian Greens' circulated amendment—

At the end of the motion, add ", but the Senate calls on the Government to ensure that early childhood education is universal, free and high-quality across Australia".

Question negatived.

The question now is that the bill be read a second time.

Andrew McLachlan

In accordance with the order agreed earlier today, time for consideration of this bill has expired.

Michaelia Cash

Pursuant to contingent notice of motion, I would move that so much of standing orders would be suspended—

Penny Wong

A point of order. There is a different issue before the chair. Senator Cash cannot do this. She cannot do it whilst you are in the middle of an item. There's no break. We are currently dealing with the message.

Andrew McLachlan

From my perspective—but I will seek advice—I am bound by the previous order, which means all questions must be put in sequence, but I will seek advice on whether a member of the Senate can stand and seek to suspend the standing orders. Senator Cash, the advice from the clerks is that you have the ability to seek the call in this instance and move as you are intending.

Michaelia Cash

Pursuant to contingent notice standing in my name, I move:

That so much of the standing orders be suspended as would prevent further consideration of the bill without limitation of time.

I will now address the chamber.

Andrew McLachlan

Senator Wong.

Penny Wong

You sat.

Michaelia Cash

No, I didn't.

Penny Wong

I move:

That the question be now put.

Sue Lines

The question is that the question be now put.

Sue Lines

The question is that the bill be now read a third time.

Sue Lines

The question now is that this bill now be read a second time.

Lidia Thorpe

I move:

That—

(1) If the Parliamentary Joint Committee on Human Rights has:

(a) sought a response from a minister in relation to a bill and a response has not been received; or

(b) concluded that a bill is incompatible, or at risk of being incompatible with Australia's international human rights obligations; or

(c) made a recommendation to amend a bill that has not been implemented;

then, immediately prior to the consideration of the relevant bill, the minister must provide an explanation of why the minister has not provided a response to the committee, or why the bill is proceeding.

(2) Where the minister makes an explanation under paragraph (1), at the conclusion of the explanation any senator may move, without notice, a motion:

(a) relating to the consideration of the bill; or

(b) that the Senate take note of the explanation.

(3) The procedures in paragraphs (1) and (2) may only be used once on any sitting day in respect of any bill or bills taken together.

(4) This order is of continuing effect.

Sue Lines

The question is that general business notice of motion No. 798 standing in the name of Senator Thorpe be agreed to.

Wendy Askew

At the request of Senator Duniam, I move:

That the Senate—

(a) notes that:

(i) the Minister representing the Minister for the Environment and Water has failed to comply with order for the production of documents no. 746, agreed to on 5 February 2025, relating to correspondence with Senators Hanson-Young and David Pocock on the Government's Nature Positive bills,

(ii) in a response from the Government, dated 11 February 2025, the Minister for the Environment and Water (Ms Plibersek) has written that 'I need time to seek advice on the text of the documents to determine whether I assert public interest immunity', noting there is no date specified by which such advice will be received, and

(iii) there is no valid public interest immunity claim that can be made by the Government in relation to order no. 746; and

(b) the Minister representing the Minister for the Environment and Water be required to attend the Senate at the conclusion of question time on 13 February 2025 to provide an explanation of the failure to comply with the orders, and that:

(i) any senator may move to take note of the explanation, and

(ii) any such motion may be debated for no longer than 30 minutes, shall have precedence over all other business until determined, and senators may speak to the motion for not more than 5 minutes each.

Sue Lines

The question is that general business notice of motion No. 793, standing in the name of Senator Duniam, be agreed to.

Katy Gallagher

At the request of Senator Chisholm, I move:

That in respect of the requirement for an explanation to be provided of the response to order for documents no. 761, the explanation may be provided at the conclusion of question time on Thursday, 13 February 2025, instead of at 12.15 pm.

Sue Lines

The question is that government business notice of motion No. 1, standing in the name of Senator Chisholm and moved by Senator Gallagher, be agreed to.