High Court of Australia Closes Door on Private Prosecutions in Taylor v Attorney-General

[Rawan Arraf is an Australian lawyer and director of the Australian Centre for International Justice. This post represents the personal view of the author and does not necessarily reflect the views of the Australian Centre for International Justice.]

This is a belated follow up to the introductory post in the matter of Taylor v Attorney General which concerned the attempted private prosecution of Aung San Suu Kyi on her visit to Australia in March 2018. The matter was heard before the High Court on 19 June 2019. At the conclusion of the hearing, the High Court by majority delivered an extemporaneous decision against the plaintiff and regrettably shut the door on the right to initiate prosecutions by private persons for the indictable offences of Division 268 of the Criminal Code – which are broadly a codification of Articles 6, 7 and 8 of the Rome Statute. The reasons were published approximately three months following the hearing.

In a surprising turn, the question on the right to initiate private prosecutions became the threshold question, or as the majority put it, “the logically anterior question” for the Court to decide: Did the plaintiff have the right to initiate a private prosecution in offences that “may only be prosecuted in the name of the Attorney-General?”

As can be read from the transcript, the Court commenced the hearing by noting they had written to the parties privately (exactly when,  we do not know) and sought argument on this question first.

The list of agreed questions in the special case which are made public, were not amended to include the Court’s new question, or to include this important private correspondence sent to the parties. In my view this signals a problem with how this case was managed throughout and it is antithetical to the notion of open justice, something the High Court should consider more broadly. All the grounds which formed the basis of the list of questions, were not even heard, because the majority of the Court decided ‘No’ to the new (threshold) question and left all other questions ‘unnecessary to answer’ or irrelevant: ‘does not arise’. It was all over in under two hours.

In a 4:3 decision, the majority held that because these specific indictable offences “may only be prosecuted in the name of the Attorney-General” as the language in s 268.121(2) reads, it exhibits a contrary intention for the purposes relating to private prosecutions, in that it precludes the bringing of private prosecutions for these offences. The majority delved deeply into the procedural background which allows for prosecution under Commonwealth law and the legislative histories and text of similar provisions. They concluded that there is an exhaustive definition of who can prosecute, including at the early summary stages of prosecution, and there was never an intention for private persons to bring prosecutions.

The majority remark in passing that private citizens bringing summary proceedings “would instead have the real potential to embarrass Australia internationally” is an unfortunate phrase that doesn’t engage with the legislative intention and principle of universal jurisdiction and its role in the prosecution of international crimes.

In their joint dissenting opinion, Nettle and Gordon JJ had a more sophisticated assessment at [90]:

“In the international law context, these offences, which include crimes against humanity and genocide, are sometimes called crimes of universal jurisdiction. Parliament could readily have viewed the importance of ensuring prosecution of these crimes – because they are of such general concern – as supporting, rather than detracting from, the desirability of private prosecution.”

This joint dissenting opinion, and the separate dissenting opinion of Edelman J, offered a better interpretation of the relationship of all three subsections of s 268.121 and how they might work in practice, including by bringing of private prosecutions. They also compare the legislation of similar provisions in New Zealand, the UK and Canadian law.

Something should also be noted about the choice of the Court to give an extemporaneous judgment on the day of the hearing. One of the judges Edelman J changed his view to dissent on reflection after the hearing, leaving a 4:3 majority, the ratio of which we only knew on publication of the reasons, some three months later. One could speculate on what might have eventuated if the matter had been reserved for judgment allowing more time for reflection and consideration of the issues.

In my introductory blog post, I alluded to the inconsistent position on the issue of private prosecutions by the Attorney-General’s Department more broadly, to the position taken by the Attorney-General in this particular case. I refer here to the following Departmental advice. The Human Rights Law Centre (HRLC) published an excellent report in 2018 Nowhere To Turn highlighting the lack of remedies available to victims of Australian corporate human rights violations abroad. In one case alleging international crimes offences, the HRLC recommended the Attorney-General’s consent provision be reviewed in light of the impediments this might cause. The HRLC received a response in March 2019 from the Department writing on behalf of the Attorney-General to their report, and it contained the following:

This requirement [to obtain the consent of the Attorney-General] is common to a number of offences across Commonwealth law, where there is a particular need to guard against inappropriate prosecutions. In this context, serious international crimes enjoy universal jurisdiction without the need to establish a geographical nexus to Australia; Australia’s criminal procedure allows any private individual, not just prosecution authorities, to bring a prosecution; and inappropriate prosecutions could cause serious harm to Australia’s international relations. However, such consent provisions allow for a person to be investigated, arrested, charged, remanded in custody or released on bail before the Attorney-General’s consent has been given. [Emphasis added]

It’s interesting to note that this response from the Department was written in March 2019 and the Attorney-General’s submission were dated February 2019.

It is disappointing that we weren’t able to see the Court engage in the more substantial questions even though ultimately I think the plaintiff would have failed on the ground that Australia is obliged under customary international law to accord an incumbent foreign minister immunity from Australia’s domestic criminal jurisdiction. This does not dispense with the fact that the ultimate question of Suu Kyi’s criminal liability is one that should be investigated.

Perception of universal jurisdiction in Australia

There is a perception, at least in the legal community in Australia that the key barrier for universal jurisdiction litigation is the Attorney-General’s required consent and perhaps that’s what motivated the plaintiff and his team to challenge this discretion in the High Court. This however represents a lack of a nuanced understanding of how universal jurisdiction works or should work. Australia may have the legal framework but it lacks a strong institutional structure at the investigative and prosecutorial level. This in my view has always represented the much greater barrier to investigating and prosecuting international crimes in Australia, than the challenge of overcoming the Attorney-General’s consent. In fact this is made clear by the majority of the Court who state that the Director of Public Prosecutions can bring prosecutions under Division 268 though not in his or her name and still require the consent of the Attorney-General (at [35]). This emphasises the vital and independent role of the DPP and why as I argue we should be focused on strengthening investigations and prosecutions.

That’s notwithstanding that in obvious cases, the Attorney-General’s consent can be an essential barrier. Recalling the case of Australian national Mamdouh Habib who was detained in Guantanamo Bay and was subject to torture and inhumane treatment. Habib brought a civil action claim against the Commonwealth for its complicity in his detention and torture. The Federal Court in this case noted the difficulty and the “evident practical consequences” Habib would have faced if he was to seek criminal prosecutions for his torture and inhumane treatment including obtaining the consent of the Attorney-General’s, which is why he resorted to a civil action.

Private prosecutions were never going to form the essential basis in developing universal jurisdiction in Australia, but could have been a vital strategic tool for the right case. Private prosecutions are seen as an anomaly in most European jurisdictions who have developed universal jurisdiction practices without it.

A better way to advance universal jurisdiction in Australia would be to seriously engage with developing its foundations and that starts with critical and constructive engagement with authorities at the investigative and prosecutorial level. There should be a focus on building and developing cases with survivor communities and partners working actively on this area abroad and presenting relevant criminal complaints of the highest quality. If we can do that, we can go to battle with the issue of the Attorney-General’s consent when the time comes.

Taylor v Attorney-General represents a disappointing outcome to a questionable strategy to take this particular case to the High Court in a matter which lacked procedural merit, and which risked the right to initiate private prosecutions.