George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

It is a very good question you ask, Senator Leyonhjelm, and it poses this dilemma, which I know we have discussed privately: should Australian law or the policy underlying Australian law—that is, that it should be against Australian criminal law for an Australian to fight in a foreign civil war as a private individual—be applied universally? There are some who say there are some virtuous participants in foreign civil wars and there are some who say that the Kurdistan Workers' Party is one of them. There is no doubt that in some aspect of its activity the Kurdistan Workers' Party does fight against ISIL, which is a common enemy between that party and Australia. The problem with adopting, as it were, a case-by-case approach to this is the uncertainty of the message it would send to the Australian public if we were to say on the one hand that it is all right to fight in a foreign civil war on behalf of one belligerent irregular army or group but in another case that it is not okay to fight in a foreign civil war on behalf of a different belligerent army or group.

So the view that Australian governments of both persuasions have taken since this provision, the genesis of which is the 1979 foreign incursions and recruitment act, is that it is better to have a general rule but to create a circumstance of excusal so that a prosecution under that provision may only be commenced with the permission or the fiat of the Attorney-General. As you know, ordinarily the permission of the Attorney-General is not required for the commencement of a prosecution. The commencement of a prosecution is ordinarily entirely a matter for the exercise of a discretion by the Director of Public Prosecutions. But in certain circumstances—and there are a number of examples of this in our law, of which this is one—because of the unusualness of the provision, because of the very considerations to which you advert, Senator Leyonhjelm, the parliament has decided that before a prosecution can be commenced it has to be authorised not just by the Director of Public Prosecutions but by the Attorney-General in his capacity not merely as the first law officer but as the politically answerable minister who must take responsibility for the fact of committing such a prosecution.