In this Insight, we look at the question of whether Australia will bring Australian Defence Force members accused of potential war crimes to trial given the legally uncharted waters the case throws up.

In light of Major General Brereton’s 465-page “Inspector General of the Australian Defence Force Afghanistan Inquiry Report” which discloses allegations of 39 unlawful killings by or involving ADF members during their deployments in Afghanistan towards alleged victims that were non-combatants or no longer combatants, the question remains whether Australia will bring the ADF members suspected of the alleged crimes before its courts.

Under Division 268 of the Criminal Code Act 1995 (Cth), Australia has jurisdiction to try individuals suspected of committing war crimes, crimes against humanity, genocide, and crimes of aggression, regardless of where or by whom the crimes were committed and whether the crimes were committed against Australian citizens or Australian property.

However, s 268.121 of the Criminal Code Act 1995 (Cth) prohibits proceedings for these offences from being commenced without the Attorney-General’s written consent.

The Attorney-General has unfettered discretion to refuse to grant consent, which is evident from the absence of any such limiting provisions in the Criminal Code. He is not required to apply any criteria or guidelines when deciding whether to grant or refuse consent, nor is he required to provide reasons (written or unwritten) for his decision of grant or refusal.

ADF Chief Angus Campbell at the release of the Inspector-General’s report, which recommended he refer 36 matters to the Australian Federal Police for criminal investigation.

The Attorney-General’s decision to refuse to grant consent is more or less final, pursuant to section 268.122 of the Criminal Code Act 1995 (Cth). The clause provides that his decision must not be challenged, appealed against, reviewed, quashed or called in question; and is not subject to prohibition, mandamus, injunction, declaration or certiorari.

His decision to grant or refuse consent is only subject to any jurisdiction of the High Court under the Constitution (namely through the prerogative writ provisions in s 75(v) of the Constitution).

Section 75(v) provides the High Court of Australia with original jurisdiction ‘in all matters in which a writ of Mandamus or prohibition or injunction is sought against an officer of the Commonwealth’

A Mandamus compels or directs the AG to perform mandatory duties correctly, a writ of prohibition prevents excess of power or jurisdiction and an injunction restrains unlawful behaviour.

Having regard to the Attorney-General’s unfettered discretion to refuse to grant consent to proceedings under Division 268 of the Criminal Code, it is anticipated that recourse to s 75(v) of the Constitution bears a significant likelihood of failure. It remains to be seen how Australia will thus proceed in relation to this matter given the legal novelty at play. 

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