Mitchell, Andrew --- "Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson" [2000] MelbULawRw 2; (2000) 24(1) Melbourne University Law Review 15

Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson

ANDREW D MITCHELL[*]

[This article begins by describing the international crime of genocide, and considers Australia’s response to its international obligations regarding genocide in the context of its implementation of international human rights generally. It then sets out the background to Nulyarimma v Thompson and how the issue of genocide was raised. To provide some understanding of whether implementation of human rights standards is possible without Government action, the relationship between international law and domestic law is then considered. The next section of the article examines the decision of the Full Court of the Federal Court in Nulyarimma v Thompson. Finally, subsequent judicial and parliamentary developments are surveyed and an assessment made of whether further reforms are required.]

[T]he horrible crime of genocide is unthinkable in Australia ... That we detest all forms of genocide ... arises from the fact that we are a moral people.[1]

I INTRODUCTION

While it is clear that international treaties become a part of Australian domestic law only once implemented by domestic legislation, it is less certain whether implementing legislation is required to incorporate customary international law into Australian law. This question is assuming a new importance as international law moves beyond dealing simply with relationships between sovereign nations to protecting the human rights of groups and individuals within states. Since the arrival of Europeans, indigenous Australians have witnessed enormous violations of their human rights. In Nulyarimma v Thompson[2] members of the Aboriginal community alleged that certain Commonwealth Ministers and Members of Parliament had committed genocide, and sought various remedies. Since Australia had not implemented the Convention on the Prevention and Punishment of the Crime of Genocide[3] by legislation, the case squarely raised the issue of whether customary international law, and in particular international criminal law, could become part of Australian law without the assistance of Parliament.

This article begins by describing the international crime of genocide, and considers Australia’s response to its international obligations regarding genocide in the context of its implementation of international human rights generally. It then sets out the background to Nulyarimma and how the issue of genocide was raised. To provide some understanding of whether implementation of human rights standards is possible without Government action, the relationship between international law and domestic law is then considered. The next section of the article examines the decision of the Full Court of the Federal Court in Nulyarimma. Finally, subsequent judicial and parliamentary developments are surveyed and an assessment made of whether further reforms are required.

II GENOCIDE AND HUMAN RIGHTS IMPLEMENTATION IN AUSTRALIA

A Genocide

1 The Genocide Convention

Genocide is a term ‘[i]nvoked with a frequency, familiarity, and reverence rarely associated with instruments of law ... [and] has come to embody the conscience of humanity’.[4] It was first authoritatively defined in the 1948 Genocide Convention.[5] Article 2 of the Genocide Convention defines genocide as:

[A]ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

This definition has been incorporated into the Statutes of both the Yugoslavia[6] and Rwanda[7] Tribunals as well as that of the Permanent International Criminal Court.[8] The Genocide Convention also prohibits conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide.[9] Article 6 of the Genocide Convention confers jurisdiction on any state tribunal for acts within its territory and also provides for prosecution before such internal penal tribunal as may be established. Even though article 6 of the Genocide Convention only provides for territorial jurisdiction for the prosecution of genocide, it is important to note that universal jurisdiction accrues by virtue of the prohibition of genocide under customary international law.[10]

According to the Genocide Convention definition, genocide has two elements. The first, the physical element, comprises certain enumerated acts such as killing members of a national group. The second, the mental element, requires that those acts have been committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group ‘as such’. The intent requirement has proved a significant hurdle for groups seeking to pursue genocide claims, and governments defending claims brought by their indigenous populations invariably argue that this requirement has not been met.[11] There has been some debate as to whether ‘specific intent’[12] or ‘general intent’ is sufficient. The general intent requirement is easier to establish, requiring only proof that ‘the foreseeable consequences of an act are, or seem likely to be, the destruction of the group.’[13] Taking a general intent approach, for example, it could be argued that the destruction of Aboriginal groups is the foreseeable consequence of the dispossession of the Aboriginal population from their lands.[14] However, current authority suggests that the special intent or dolus specialis requirement must be fulfilled, which ‘requires that the perpetrator clearly seek to produce the act charged’, and is unique to the definition of genocide.[15]

It is critical to note what is absent from the definition of genocide in the Genocide Convention.[16] The definition does not cover cultural genocide[17] — ‘[t]he destruction of people’s way of life, through relocation, lack of support, or actual destruction of the books and monuments of the community, suppression of a group’s education of children in their native language or other assimilation policies’.[18] Although the Lebanese delegate on the Ad Hoc Committee appointed by ECOSOC[19] to draft the Genocide Convention proposed a definition of genocide that included action taken to destroy a group without physically destroying it,[20] the United States and Canada were successful in removing any reference to cultural genocide.[21] Both countries engaged in policies that could be described as cultural genocide against their indigenous populations.[22] The ‘sole echo of efforts to include the notion of cultural extermination is the Convention’s reference to forcibly transferring children of a targeted group to another group.’[23]

2 Jus Cogens

A number of jurists has identified certain basic principles of international law, known as jus cogens, from which states cannot derogate. These principles stand at the top of the international law hierarchy above other norms and principles.[24] A norm will not reach the status of jus cogens until it is ‘accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’[25] In other words, a rule of jus cogens cannot be set aside by mere treaty or acquiescence.[26]

While there is general agreement about the existence of jus cogens, there is less agreement about its content.[27] Bassiouni suggests a crime will be part of jus cogens if it: (i) affects the interest of the world community as a whole because it threatens the peace or security of humankind; and (ii) shocks the conscience of humanity.[28] Conduct caught by this definition is likely to involve states and state policies.[29] In particular, in respect of the first criterion, a state is more likely than an individual to be capable of acting on a scale that affects the ‘world community as a whole’. In addition to these two fundamental criteria, Bassiouni suggests other indications of crimes of jus cogens, namely: the number of international agreements that condemn or prohibit the conduct; the number of states that have made the conduct a crime under their national law; and the number of prosecutions for the crime and their characterisation.[30]

Bassiouni and other writers have identified conduct such as genocide,[31] crimes against humanity and war crimes as crimes of jus cogens.[32] As the International Court of Justice observed in Reservations to the Convention on the Prevention and Punishment of Genocide (Advisory Opinion):

The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as a ‘crime under international law’ ... The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the co-operation required ‘in order to liberate mankind from such an odious scourge’.[33]

3 Erga Omnes and Universal Jurisdiction

The term obligatio erga omnes concerns the legal implications of a crime’s characterisation as jus cogens.[34] There is some uncertainty as to these implications, and whether obligatio erga omnes involves the imposition of obligations and duties on states or merely the granting of certain rights. For example, if a crime is characterised as jus cogens, does this mean that a state is under a duty to prosecute or extradite the perpetrator of the crime, or simply that a state has the right to prosecute or extradite? Given that jus cogens comprises, by definition, peremptory norms of international law, it would seem that the characterisation of a crime as jus cogens should be understood as imposing duties on states. This view is supported by Bassiouni, who considers that one of the consequences of such a characterisation is that states must recognise the universality of jurisdiction over such crimes and must not grant immunity to the violators of such crimes.[35] Obiter dicta by the International Court of Justice in Barcelona Traction (Second Phase)[36] referred to the prohibition of genocide as an obligation erga omnes ‘in which all States have a legal interest.’[37]

Somewhat surprisingly, despite the hundreds of genocidal acts which have been committed since the Genocide Convention came into operation in 1951,[38] and the general acceptance of genocide as a crime of jus cogens, very few prosecutions have been brought under the terms of the Genocide Convention. It was only on 2 September 1998 that the first trial and conviction of an individual for genocide occurred, with the opinion of the International Criminal Tribunal for Rwanda in Prosecutor v Akayesu.[39] The trial chamber found that Jean-Paul Akayesu, a mayor in a rural commune in Rwanda, participated in or ordered atrocities against the Tutsi.[40]

B Human Rights Implementation in Australia

Australia has often shown reluctance in implementing human rights obligations under domestic law, despite being an active participant in a number of international human rights developments and becoming a party to a number of recent conventions. For example, Commonwealth human rights legislation is often limited in scope,[41] exempts particular areas from its operation,[42] is only indirectly enforced[43] and ignores social and economic rights.[44] Another example of Australia’s lack of enthusiasm in implementing human rights is that it has only fairly recently taken the step of allowing human rights complaints to be brought by Australians to United Nations bodies.[45]

During certain periods, this trend can be partly explained by the Commonwealth Government’s practice of seeking the approval of States before entering into treaties that might affect them.[46] In this regard, although there is no constitutional impediment to Commonwealth implementation of its human rights obligations,[47] inertia is permitted to prevail on the basis of deference to federal concerns.[48] However, this reason masks two more entrenched barriers to international human rights implementation in Australia. The first is ‘a utilitarian confidence in [the] existing governmental structure.’[49] The second concerns issues of sovereignty and a fear of handing over power to unelected international committees.[50]

C Response to the Genocide Convention in Australia

Australia’s response to the Genocide Convention typifies its general approach to its human rights obligations. The Australian Government has taken the view that existing laws ‘in relation to the offences of murder, manslaughter, assault, conspiracy and incitement and other matters are sufficient to enable Australia to comply with its obligations’ under the Genocide Convention.[51] Therefore, the Genocide Convention Act 1949 (Cth) simply approved ratification by Australia of the Genocide Convention and scheduled its terms.

However, a memorandum to the Secretary, Department of External Affairs from the Attorney-General’s Department dated 6 April 1949 indicated that the criminal laws of the Commonwealth did not provide penalties for all of the acts described in the Genocide Convention.[52] For example, the memorandum identified certain inadequacies of Commonwealth law in relation to the following physical elements in the Genocide Convention definition of genocide:

• Causing serious bodily or mental harm — ‘I am not aware of any provisions of existing State criminal law which make it an offence to cause either physical or mental injury by resorting to psychological technique.’
• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part — ‘I am not aware of specific offences in regard to any of these matters except in relation to a person whom another person, such as a parent or guardian, is under some obligation to provide for. Some additional legislative provision would, therefore, appear to be necessary to give full effect to this provision.’

There have been subsequent calls for full implementation of the Genocide Convention in Australian law. In 1991 the Review of Commonwealth Criminal Law stated:

[T]he Australian Government decided in 1949 to limit Australian legislation to approval of ratification. Whether there should be further Australian implementation or clarifying legislation was left in abeyance until the attitude of other Contracting Parties and action taken by other Contracting Parties as regards their domestic legislation was known. ...

The position of Australian law as regards this Convention, in the opinion of the Review Committee, is clearly unsatisfactory.[53]

It is certainly true that some acts that would constitute genocide would be able to be prosecuted under Australia’s existing laws. However, genocide is committed against a group, whereas the existing offences, such as murder, are committed against individuals. Genocide is clearly a different crime, distinguishable at least in relation to the intent behind the actions of those who commit it. This difference means that certain acts which constitute genocide may not be able to be prosecuted under existing laws.[54] As stated by Josef Kunz:

[T]he criminal intent is an integral element in crimes in general; and many crimes presuppose a specific intent; breaking and entering the dwelling house of another by night, is burglary only if done with the specific intent to commit a felony. Naturally, as in all crimes presupposing specific criminal intent, the latter is the gist of the offence; it is this specific criminal intent which distinguishes genocide under Article II(a) from common law murder.[55]

The very fact that a claim of genocide was made against members of the Australian Government in the Nulyarimma case shows that certain acts which constitute genocide may not be able to be prosecuted under Australia’s existing laws,[56] and demonstrates that the implications of the Genocide Convention for Australia may prove greater than originally expected:

No one in his right senses believes that the Commonwealth of Australia will be called before the bar of public opinion, if there is such a thing, and asked to answer for any of the things which are enumerated in this convention.[57]

Further, the current position of the law would prevent Australia from permitting the extradition of a person accused of committing genocide outside the territory of the requesting state. This is because the principle of double criminality would not be satisfied. This principle, provided for in s 19(2)(c) of the Extradition Act 1988 (Cth) and a common feature of extradition laws, requires that the conduct on which extradition is sought be an offence in both the requesting and extraditing states.[58] Assume, for example, that Portugal seeks the extradition of a person living in Australia who is alleged to have committed genocide in East Timor. Portugal’s prosecution is based on legislation which declares genocide to be an offence wherever it is committed. Regardless of the strength of the evidence, Australia would not be able to surrender that person because genocide committed in East Timor would not be a crime under Australian law. An analogous situation arose in the Pinochet decisions, where Spain sought General Pinochet’s extradition from the United Kingdom for offences (including torture) allegedly committed in Chile.[59]

III THE CLAIMS IN NULYARIMMA

Nulyarimma v Thompson was a combination of two cases. The first case was an appeal by four informants[60] against a decision of Crispin J in the Supreme Court of the Australian Capital Territory.[61] Crispin J had upheld the decision of the Registrar of the Magistrates Court of the Australian Capital Territory (Mr Phillip Thompson) to refuse to issue warrants for the arrest of John Howard (Prime Minister), Timothy Fischer (Deputy Prime Minister), Brian Harradine (Senator) and Pauline Hanson (Member of the House of Representatives). The writs before the Registrar alleged that these politicians had committed the criminal offence of genocide in connection with their formulation or support of the Commonwealth Government’s native title ‘Ten Point Plan’ and the Native Title Amendment Bill [No 2] 1997 (Cth).[62]

The second case[63] was a motion to strike out proceedings instituted by Kevin Buzzacott (on behalf of the Arabunna People) in the Federal Court against Robert Hill (Minister for the Environment), Alexander Downer (Minister of Foreign Affairs and Trade) and the Commonwealth of Australia. The proceedings alleged[64] that the respondents committed genocide, breach of fiduciary duty and other unlawful conduct in failing to apply to the UNESCO[65] World Heritage Committee for inclusion of the lands of the Arabunna People on the World Heritage List maintained under the Convention for the Protection of the World Cultural and Natural Heritage.[66] Mr Buzzacott sought damages and a mandatory injunction compelling the respondents to ‘proceed with the World Heritage Listing of the Arabunna lands.’[67] The strike-out motion was based on the grounds that the proceedings did not disclose a reasonable cause of action, were frivolous and vexatious and constituted an abuse of process of the Court. The motion was referred to a Full Court and adjourned to be dealt with in conjunction with the Nulyarimma appeal.

In the Full Court of the Federal Court, the appellants in Re Thompson and the applicant in Buzzacott v Hill put the same argument to the court regarding the existence of the crime of genocide under Australian law.[68] On a basic level this was a two-step argument. The first step of the argument was that the prohibition against genocide is a customary norm of international law. The parties and the Court were in agreement that genocide was not only a customary norm, but also a universal crime under international law.[69] The Court found that the prohibition against genocide was a peremptory norm of international law, giving rise to a non-derogable obligation by each country to the international community.[70] It was a jus cogens obligation that existed before and independently of the Genocide Convention.[71]

The more important part of the argument was therefore the second step, which claimed that Australian municipal law incorporates customary norms of international law without the need for legislation, and therefore that the crime of genocide is part of Australian domestic law. Counsel for the respondents contended that customary international law can only be incorporated into Australian law by legislation. In particular, international crimes such as genocide can only be implemented by legislation. On that basis, as no enactment has implemented the crime of genocide, it is not part of Australian law.[72]

In resolving this dispute a number of questions arise. First, what is the general relationship between customary international law and domestic law? Secondly, does this rule depend upon whether the relevant customary international law norm is criminal or non-criminal? Thirdly, in the specific case of genocide, can the customary international law norm prohibiting genocide become part of municipal law by virtue of the various statutes covering criminal offences? Before assessing the Court’s responses to these questions, it is worth examining some of the underlying theoretical issues they raise, and previous approaches of Australian courts to these issues.

IV THE RELATIONSHIP BETWEEN INTERNATIONAL

AND DOMESTIC LAW

A Theories of Monism and Dualism

The two principal theories regarding the relationship between international and domestic law are monism and dualism.[73] Monism is the theory that international and domestic law form part of the ‘one legal order or system of norms binding states and individuals alike, their rules being interrelated.’[74] Although this description suggests no hierarchy between international law and domestic law, some jurists, such as those of the Vienna school,[75] understand monism as involving the ultimate primacy of international law over domestic law.[76] For members of the Vienna school, all rules of law depend for their validity on the Grundnorm, or basic norm. The basic norm is the norm the validity of which cannot be derived from a higher norm.[77] Since international law determines the sovereignty of states it is the basic norm, leading to the conclusion that it has supremacy over domestic law.[78]

In contrast, dualism holds that international and domestic law are separate bodies of law which exist independently of each other.[79] Dualists point out that these two bodies of law regulate different subject matter:[80] ‘International law is a law between sovereign states: municipal law applies within a state and regulates the relations of its citizens with each other and with the executive.’[81] Although municipal law may provide for the application of certain rules of international law within its jurisdiction, under dualism this merely represents an exercise of the authority of municipal law to incorporate or adopt international law.[82] Where the rules conflict, municipal law prevails.

Some jurists consider the monism–dualism debate unhelpful and argue that both theories wrongly assume that there is a common ground in which both domestic and international law can operate.[83] These theorists regard international law as performing a co-ordination role and as not invalidating domestic laws.[84]

B Incorporation–Transformation Framework

Two major theories explain how international law can become part of domestic law — the incorporation and transformation theories. These theories provide a framework which shows how the debate over monism–dualism is manifested at a more practical level.[85] Each theory has two variants — a ‘soft’ and ‘hard’ approach.[86] The term ‘adopt’ is often used to refer to the incorporation or transformation of international law into domestic law by the courts, in the absence of legislation.

Under the transformation theory, international law and domestic law are separate bodies of law, and international law only becomes part of the domestic law of a state when it is ‘transformed’ by a discretionary act of that state.[87] Under the hard transformation theory, only legislation can transform international law into domestic law. Courts may apply international law only where authorised by legislation.[88] Under the soft transformation theory, either a judicial or legislative act of a state can transform international law into domestic law. The justification given for judicial action under this approach is that the courts are applying a rule of international law which has been incorporated into domestic law by a previous judicial decision.[89] Of course, this cannot be correct. As Erades indicates:

The requirement that a court may only apply a rule of international law, if that rule has previously been recognised by another court, leads to the conclusion that a new rule of international law can never be made of English law because no English court [could declare a rule for the first time.][90]

A better explanation of this approach is that the judicial act is simply a decision by a court that a rule of international law is now to become part of domestic law. Where the doctrines of parliamentary supremacy and separation of powers apply (as they do in Australia to some extent), the judicial transformation of international law can only occur in the absence of conflicting legislation. Assuming that no such legislation exists, courts have a discretion in determining whether to apply a rule of international law. Unfortunately, the decisions which could be viewed as adopting this approach provide no guidance as to when a particular rule should be applied.[91]

The incorporation theory views international law as part of domestic law.[92] There is no element of discretion. Instead, rules of international law automatically become part of domestic law to the extent that they do not conflict with domestic laws. Under the hard incorporation theory, domestic courts must apply international law except to the extent that it is inconsistent with domestic legislation or the common law.[93] Under this approach, international law is ‘subordinate to both the common law and statute law.’[94] Under the soft incorporation theory, domestic courts must apply international law except to the extent that it is inconsistent with domestic legislation.[95] Thus, international law is subordinate to domestic legislation but is part of the common law. It has been suggested that the differences between the soft incorporation theory and soft transformation theory ‘are more apparent than real’.[96] However, the key difference is that the court has a discretion under the soft transformation theory, but not under the soft incorporation theory.[97]

The incorporation–transformation framework has been frequently criticised.[98] The most important criticism of the framework is that it only explains the ways international law can be directly applied at a domestic level. As Walker points out, it

ignores the ways in which international law may influence domestic law without being directly applicable — by influencing the development of the common law, by influencing constitutional interpretation and by potentially giving rise to administrative law remedies.[99]

Walker suggests an alternative framework including the concept of ‘operativeness’.[100] Under this alternative framework, international law may be directly operative, indirectly operative or inoperative. However, it is submitted that Walker’s proposal is more usefully applied when added to the incorporation–transformation framework. Amalgamating them in this way, one begins with the category of international law, ie customary (‘created by the general and consistent practice of states that is followed by them from a sense of legal obligation’)[101] or conventional (created by international treaty or convention). One then determines which of the four theories in the incorporation–transformation framework applies. Finally, one uses Walker’s concept of ‘operativeness’ to determine the level or means of operation of international law in that case. If adopted, this could help address the ‘lack of rigour [which] has characterised much of the literature and case law in this area.’[102]

C Australian Approaches

Australian courts have not yet developed a clear approach to the relationship between international and domestic law in terms of the incorporation–transformation framework. The courts have used different theories and variants of those theories, generally without labelling their approach. The preferred approach under Australian law often differs according to whether the international law in question is a rule of customary international law or conventional international law.

In Australia and a number of other Commonwealth countries, the power to enter into treaties is one of the royal prerogatives vested in the executive.[103] However, the executive is generally concerned with applying principles and rules of law to particular cases, while the legislature’s function is to make rules of law. Therefore, while no Montesquieuian separation of powers exists between the executive and legislature in either Australia or Britain,[104] the doctrine of parliamentary supremacy has long been held to mean that the making of a treaty does not change domestic law.[105] This reflects a hard transformation theory. However, this rule does not apply to ‘treaties relating to the conduct of war or treaties of cession’, which can have direct effect under Australian law.[106] In addition, where the legislature passes legislation for the express purpose of giving effect to a treaty, a rule of construction has developed that any ambiguity in that statute should be resolved in the manner most consistent with the treaty.[107]

The Australian approach to implementation of rules of customary international law is less clear. The relationship between customary international law and domestic law was first considered by the High Court in Polites v Commonwealth.[108] That case concerned the validity of regulations which purported to conscript aliens. The regulations were challenged on the basis that they were in breach of customary international law, which in most circumstances prohibited the conscription of aliens. The court upheld the regulations on the basis that the Australian Parliament had intended to provide an unqualified discretion to conscript aliens. Although this made further consideration of the relationship between customary international law and domestic law unnecessary, Williams J stated that when customary international law ‘has been established to the satisfaction of the courts [it] is recognised and acted upon as part of English municipal law so far as it is not inconsistent with the rules enacted by statutes or finally declared by the courts.’[109] Williams J’s statement is consistent with the hard incorporation theory.

Whether customary international law could be a source of domestic law in Australia was first substantively considered in Chow Hung Ching v The King.[110] In that case, civilians were convicted of assault and a number of other offences in the Australian Trust Territory of Papua New Guinea. The civilians were accompanying a Chinese Army team and claimed immunity from the jurisdiction of the court on the basis of the customary international law principle that affords immunity to members of visiting armed forces. The Court held that the civilians were not members of the Chinese Army team and therefore were not entitled to immunity. Dixon J stated:

In the first place the theory of Blackstone ... that ‘the law of nations ... is here adopted in its full extent by the common law, and is held to be a part of the law of the land’ is now regarded as without foundation. The true view, it is held, is ‘that international law is not a part, but is one of the sources, of English law’. ‘In each case in which the question arises the court must consider whether the particular rule of international law has been received into, and so become a source of, English law’.[111]

Sir Anthony Mason notes that ‘Dixon J’s “source” view ... is not without ambiguity.’[112] Mason quotes Geoffrey Sawer, who states:

[T]here must exist a judicial discretion in the Australian (and English) courts to ignore international law rules not so far ‘received’ on some ground of their inconsistency with general policies of our law, or lack of logical congruence with its principles.[113]

Mason’s observations suggest that Dixon J was applying the soft transformation theory, although Dixon J’s statement as cited above could just as easily be seen to support the soft incorporation theory.

Subsequent High Court decisions have made observations about the relationship between customary international law and domestic law, but there has been no decision where the issue has been directly considered.[114]

V THE DECISION IN NULYARIMMA

A The Crime of Genocide under Australian Law

1 Implementation of International Customary Norms Generally

In Nulyarimma Merkel J alone gave detailed consideration to the general relationship between customary international law and domestic law, instead of focusing on the particular issue of customary international criminal law and domestic law. Whitlam J did not consider the general relationship at all. Wilcox J acknowledged that the incorporation–transformation debate was unclear in Australia.[115] However, his Honour suggested that he did not favour an adoption theory that did not require legislation. His Honour was troubled by the appellants’ argument that while conventional international law required legislation in order to become implemented in Australia, customary international law could be implemented without legislation. His Honour stated:

[I]t would lead to the curious result that an international obligation incurred pursuant to customary law has greater domestic consequences than an obligation incurred, expressly and voluntarily, by Australia signing and ratifying an international convention.[116]

However, international conventions in Australia are signed and ratified by the executive and not the rule-making Parliament. Such conventions may be limited to particular countries and lack the urgent claim for observance asserted by customary international law, the rules held to be accepted by all nations.[117] At any rate, his Honour regarded the debate as ‘academic’ in the present context, since the issue before the Court involved customary international criminal law, which entailed quite different considerations.[118]

Merkel J began his consideration of whether customary international law can become part of domestic law by reviewing the position in certain other common law countries. In relation to the English authorities, his Honour concluded that the soft incorporation approach favoured in Trendtex Trading Corporation v Central Bank of Nigeria[119] was the preferred view.[120] His Honour considered that in Canada soft incorporation was also ‘the prevailing view, in reliance upon Lord Atkin in Chung Chi Cheung’.[121] His Honour considered that the New Zealand approach was similar to that of Canada, although the judgments had been less explicit about the nature of the relationship.[122] However, his Honour warned that the position in other countries is only of limited assistance, noting that the relationship between international and domestic law depends upon a number of factors, including constitutional relationships, that vary between countries.[123]

Reviewing the Australian authorities, Merkel J stated that the ‘common law adoption’ approach is dominant.[124] His Honour explained that under this approach, it is first necessary for the relevant principle of customary international law to have been generally accepted by ‘the community of nations as a rule of international conduct’, as demonstrated by treaties, textbooks, cases and general practice.[125] In addition, the rule must not be inconsistent with domestic legislation or common law.[126] Inconsistency in this context means strict inconsistency, being ‘inconsistency with the general policies of our law, or lack of logical congruence with its principles’.[127]

Merkel J’s formulation seems consistent with the incorporation approach, because judges have no discretion as to whether the rule of customary international law will become part of domestic law. Merkel J stated that rules will be adopted and received rather than that they may be. More specifically, the formulation is consistent with the hard incorporation approach because it requires that the rule of customary international law not be strictly inconsistent with either legislation or the common law.[128]

2 Implementation of International Criminal Laws

(a) Summary

Wilcox and Whitlam JJ declared that genocide, along with other norms of international criminal customary law, can only be introduced into Australian law by legislation.[129] In the absence of legislation, therefore, genocide is not yet recognised as a crime under Australian law. Furthermore, Whitlam J considered that even if genocide could otherwise be judicially recognised in Australia, this was ruled out due to inconsistency with existing legislation.[130] Merkel J took a different view on both issues. His Honour applied the hard incorporation approach, and considered that the same approach should be applied regardless of whether the norm in question is criminal or not.[131] On that basis, his Honour considered that genocide is part of the common law of Australia.[132] His Honour also took the view that existing legislation did not prevent such recognition by the Court.[133] The reasoning of the three Justices on these issues is examined in the following sections of this article.

(b) Appellants’ Arguments

(i) Universal Jurisdiction

Although criminal aspects of international customary law raise different considerations from international customary law generally, the appellants in Nulyarimma submitted that the same approach should be adopted in both types of cases. Merkel J agreed, noting that the fact that R v Keyn[134] and Chung Chi Cheung v The King[135] ‘were concerned with the application of customary international law to a criminal prosecution did not give rise to a different approach or principle.’[136] His Honour also cited Re Piracy Jure Gentium[137] where Viscount Sankey referred to the jurisdiction over pirates by the High Court of Admiralty in England which existed before the enactment of legislation criminalising piracy. This was a clear example of domestic prosecution of an international crime without legislation.[138]

Whitlam J was not satisfied that a norm of customary international law had been established to the effect ‘that courts in common law countries have jurisdiction in respect of those international crimes over which States may exercise universal jurisdiction.’[139] Of course, no such international norm exists. As Whitlam J stated, the manner in which universal jurisdiction is exercised, if at all, will depend upon the particular arrangements of each country.[140] Therefore, it is submitted that the question is whether the common law of Australia recognises the jurisdiction conferred by international law to punish a breach of international criminal law.

Merkel J acknowledged that ‘little consideration has been given to the processes by which the common law States fulfil or enforce’ the obligation to prosecute international crimes.[141] His Honour stated that for rules of international law to be directly transformed into domestic law and to operate extraterritorially, they must be rules to which universal jurisdiction attaches. Without such universal jurisdiction, only the Parliament could by legislation vest the courts with such extraterritorial jurisdiction. However, where international law vests universal jurisdiction in every court, such as to enforce the international prohibition against genocide, legislation is not required. His Honour explained that this was consistent with Brennan J’s judgment in Polyukhovich.[142]

(ii) Pinochet

The appellants relied on the decision of Lord Millett in Pinochet in the House of Lords as authority for the proposition that norms of customary international law, and in particular criminal law norms, can be adopted by domestic law without legislation.[143] That case involved a judicial review application regarding the issue of warrants for General Pinochet’s arrest. The warrants were issued on the basis of a request by Spanish prosecutors who were seeking his extradition for various crimes alleged to have been committed between 1976 and 1992. The case is instructive in terms of the United Kingdom position regarding the implementation of customary international criminal laws into domestic law.

One of Pinochet’s arguments was that for most of the dates during which the offences listed in the warrant were alleged to have been committed, these offences were not crimes in the United Kingdom as required by the Extradition Act 1989 (UK).[144] His submission was that the alleged acts had to be criminal under English law not at the date of the request for extradition, but at the time the acts were done (‘conduct date’). Specifically, Pinochet argued that torture only became an extradition crime when it became a crime under English law by virtue of s 134 of the Criminal Justice Act 1988 (UK) in 1988. According to this argument, Pinochet could not be extradited in respect of offences of torture alleged to have been committed prior to that date.

The majority of the House of Lords agreed with Pinochet’s argument in this regard, with the result that the number of extraditable charges dramatically decreased.[145] However, Lord Millett adopted an alternative approach that did not depend upon statute at all. His Lordship stated that crimes prohibited by international law attract universal jurisdiction if they both infringe a rule of jus cogens and are ‘so serious and on such a scale that they can justly be regarded as an attack on the international legal order.’[146] His Lordship considered that the international crime being considered in that case — systematic torture as an instrument of state policy — met both criteria.[147] Accordingly, since customary international law was part of the common law,[148] English courts already possessed extraterritorial jurisdiction over the alleged crimes and did not require statutory authority to exercise it.[149] This interpretation meant that even if the Extradition Act requires the existence of a crime at the conduct date, the alleged acts were crimes under English law for some time before the enactment of the Criminal Justice Act, including at the relevant conduct dates.

In his judgment in Nulyarimma, Whitlam J did not indicate why Lord Millett’s proposition was unstable, but did critique the authorities cited by his Lordship in Pinochet.[150] Lord Millett referred to Attorney-General (Israel) v Eichmann[151] as possible authority for the proposition that crimes to which universal jurisdiction attach may be prosecuted without reliance on statute.[152] However, Whitlam J stated that he could not find anything in the judgment of the Supreme Court of Israel to suggest that universal jurisdiction was an ‘independent source of jurisdiction’[153] for the trial in Eichmann.[154] In that case, Eichmann, an officer in the German army, was charged with war crimes and crimes against humanity under Israeli statute. The court was called upon to consider the nature of universal jurisdiction.[155] Parts of Eichmann do, at least on one interpretation, support Lord Millett’s contention. The Court in Eichmann stated:

[I]nternational law surmounts these difficulties ... by authorizing the countries of the world to mete out punishment for the violation of its provisions, which is effected by putting these provisions into operation either directly or by virtue of municipal legislation which has adopted and integrated them.[156]

Accordingly, in bringing the appellant to trial, it has functioned as an organ of international law and has acted to enforce the provision of that law through its own laws.[157]

Although in Eichmann the prosecution was brought under domestic legislation enacted by the Knesset, this passage may suggest that a rule of international law could be directly implemented without municipal legislation — presumably by the common law.[158]

Whitlam J correctly pointed out that the two American cases[159] cited by Lord Millett ‘provide no support for the suggestion that universal jurisdiction provides, by itself, a source of jurisdiction for municipal courts to try international crimes.’[160] However, while these cases did not go as far as Lord Millett may have suggested, like Eichmann, they are consistent with his Lordship’s argument.

(c) Respondents’ Arguments

Historically, courts had the power to create criminal offences.[161] While Parliament sat irregularly, and passed criminal law legislation even more irregularly, this was convenient. However, by the 19th century, these circumstances no longer existed and the court’s inherent common law power to create offences lapsed as it became recognised as a function more appropriately performed by Parliament. The respondents in Nulyarimma submitted that because courts can no longer create criminal offences[162] (this now being the exclusive prerogative of the legislature),[163] genocide cannot be incorporated into Australian law without legislation. Government statements expressing the hope that all Australian criminal laws would be codified[164] were used to support this proposition. This argument was also based on three objections noted by Smith in an article discussing the creative powers of the courts in relation to criminal law: uncertainty, usurpation of Parliament’s function and retrospectivity.[165] These will be considered in turn.

(i) Uncertainty

Certainty is an important objective in criminal law, especially since it can impose severe sanctions against individuals.[166] Wilcox J considered the international prohibition against genocide too uncertain to be enforced in the absence of legislation.[167] His Honour referred to the English legacy of R v Keyn[168] where Cockburn CJ distinguished between the domestic courts properly recognising rules of international law and improperly giving effect to ‘a jurisdiction beyond and unknown to the law’. Wilcox J stated that this distinction could perhaps be explained in terms of self-executing rules and non-self-executing rules.[169] Non-self-executing rules are those rules of international law which lack sufficient detail to be applied in a domestic context.[170] His Honour considered that the prohibition against genocide was non-self-executing because a number of important ‘ground rules’ had not been set. His Honour asked:

Which courts are to have jurisdiction to try the accused person? What procedures will govern the trial? What punishment may be imposed? These matters need to be resolved before a person is put on trial for an offence as horrendous as genocide.[171]

However, R v Keyn can be read as suggesting a different conclusion. In that case, Cockburn CJ was concerned with the imprecision and disagreement between jurists as to the existence and scope of the particular rule of international law under consideration.[172] As noted by Professor Brownlie, Cockburn CJ was concerned with ‘the proof of the rules of international law: if the evidence is inconclusive and the issue affects the liberty of persons, then assent by the legislature of the forum is needed to supplement the evidence.’[173]

So understood, the issues of evidence that concerned Cockburn CJ do not apply to the prohibition against genocide because of the lack of disagreement regarding the existence of that prohibition at an international level. It is also doubtful that the crime of genocide lacks sufficient detail to be implemented. As stated by Merkel J, genocide is clearly defined in international law.[174] Part of its certainty is perhaps attributable to widespread agreement that the Genocide Convention’s definition reflects customary international law. Merkel J stated that genocide could be punished in a similar manner to any other common law offence, such as contempt of court, and therefore appropriate ground rules were readily available.[175]

(ii) Usurpation of Parliament’s Function

Another argument against the creation of new crimes by the courts is that Parliament is better suited to making the value judgments that are integral to the creation of new crimes.[176] However, Merkel J distinguished between the creation of new offences under domestic law and the adoption of existing international crimes under domestic law.[177] Here, ‘the court is determining whether to “adopt” and therefore receive as part of the common law an existing offence under international law which has gained the status of a universal crime.’[178] Moreover, since his Honour was advocating the hard incorporation approach, there were no value judgments involved. The international law would have to be adopted if the established criteria[179] were satisfied.[180] Finally, in the particular case of genocide, its recognition as an international crime by the executive and legislature further allayed concerns that its recognition intruded upon the legislature’s domain.[181]

(iii) Retrospectivity

The general principle against retrospectivity in criminal law reflects the objective of imposing criminal liability only on conduct which has already been declared criminal.[182] This principle is embodied in the maxim nullum crimen nulla poena sine lege — there is no crime or penalty without law making it so.[183] This principle is clearly infringed when a judge declares criminal conduct which was previously not criminal.[184] Wilcox J considered that this weighed against recognising genocide as a crime under Australian law.[185] However, it is difficult to maintain that the recognition of genocide in Australia would deny anyone the appropriate level of forewarning. As stated by Merkel J, genocide has slowly evolved under international law to the level of a jus cogens crime and ‘does not involve the creation of a new standard leaving potential offenders uncertain as to whether they have, or have not, engaged in criminal conduct.’[186]

3 Statutory Inconsistency

Although it was not contended by the respondents that the adoption of genocide by the Court would be inconsistent with statute,[187] both Whitlam and Merkel JJ considered this issue. Their Honours first considered the statutory obstacles to recognising genocide as part of the common law of the Commonwealth. Whitlam J referred to s 1.1 of the Criminal Code (Cth) which provides:

The only offences against the laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.

Whitlam J considered that from the date s 1.1 came into operation, on 1 January 1997, all Commonwealth common law offences were abolished and therefore genocide could no longer be recognised as a common law offence under Commonwealth law.[188]

However, Merkel J drew a distinction between Commonwealth statutory and common law offences, which are ‘laws of the Commonwealth’, and crimes arising under customary international law or the common law generally, which are not.[189] The distinction can be applied by determining whether the crime possesses a ‘federal source or element arising from the offence being in relation to an officer, property, revenue or statute of the Commonwealth’.[190] Crimes under customary international law do not possess this federal source or element. This view of s 1.1 is consistent with the rule of statutory construction that statutes are to be read in a manner that accords with the principles of international law.[191]

Whitlam J went on to consider whether genocide could form part of the common law of the Australian Capital Territory and held that it could not, because of the operation of s 6 of the Seat of Government Acceptance Act 1909 (Cth) which limited common law offences in the ACT to those that were part of the law of New South Wales at 1 January 1911:[192]

In any event, common law offences are anathema in the so-called Griffith Code jurisdictions ... It would be absurd if the common law countenanced the selective exercise by municipal courts of a universal jurisdiction under international law.[193]

B Whether Genocide Was Made Out

Although the majority held that genocide was not part of Australian law, brief consideration was given to whether the appellants’ claim satisfied the intent requirement of genocide.[194] Wilcox J briefly discussed the intent requirement but did not make any comments regarding whether it was satisfied.[195] Whitlam J did not discuss the intent requirement but agreed with Merkel J’s comments.[196]

Merkel J referred to Crispin J’s judgment in Nulyarimma at first instance.[197] Crispin J held that although there was ‘ample evidence ... that acts of genocide were committed during the colonisation of Australia’,[198] the evidence and material before him did not show that the alleged acts were of a kind stipulated in paragraphs (a)–(e) of article 2 of the Genocide Convention or that they were committed with ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group’.[199] Merkel J warned of the ‘dangers of demeaning what is involved in the international crime of genocide’,[200] which (under the Genocide Convention definition) does not include ‘cultural genocide’.[201] Aspects of cultural protection are instead dealt with by particular international instruments.[202]

Merkel J acknowledged the mistreatment suffered by Aboriginal people, and did not expressly disagree with Crispin J’s statement about genocidal acts committed against Aboriginals in the past. However, his Honour stated that it was difficult to suggest that acts in ‘modern Australian society’ could constitute genocide.[203] He concluded that

none of the allegations relied upon by the appellants are capable of raising an arguable case that any of the persons the subject of the proposed warrants and informations have engaged in any conduct that is capable of constituting the crime of genocide under international and domestic law.[204]

C Further Obstacles for Nulyarimma

Merkel J identified further barriers to the grant of the relief sought in both cases before it.[205] Thus, even if his Honour had found genocide was a crime under Australian law, and that it had been made out on the facts alleged, relief would not have been granted. This article will focus on certain obstacles identified by Merkel J (Whitlam J agreeing)[206] in relation to granting mandamus to compel the issue of warrants for the arrest of the politicians involved in the formulation of the Ten Point Plan. The obstacles identified by Merkel J involved the protection given to members of Parliament in relation to the formulation of legislative policy,[207] and the implied constitutional freedom of political communication.[208]

Section 16 of the Parliamentary Privileges Act 1987 (Cth), itself based on article 9 of the Bill of Rights 1688 (Eng) 1 Wm & M, c 2, privileges debates and proceedings in Parliament from being impeached or questioned in any court. This privilege is founded on the need for the legislature to be able to act freely and to carry out its constitutional function effectively without fear of punishment.[209] Merkel J referred to the authorities listed by Crispin J[210] which recognise that a member of Parliament cannot be convicted for speaking or voting on a Bill,[211] or in relation to parliamentary proceedings, including debates and asking questions,[212] and agreed with Crispin J’s conclusion that no prosecution could be brought against a member of Parliament in relation to the introduction of the Native Title Amendment [No 2] Bill 1997 (Cth).[213] Nor could a member of Parliament be charged in relation to the ‘antecedent formulation of the policies’ that were reflected in that legislation, since this would defeat the policy considerations of the immunity given to members against prosecution for introducing or voting on a bill.[214]

Merkel J noted that the implied freedom of political communication also protects ‘advocacy for, as well as opposition to, the “Ten Point Plan” and the legislation which gives effect to it.’[215] The formulation of legislative policy, as part of the ‘opinions and arguments concerning government and political matters that affect the people of Australia’, was seen to fall clearly within this freedom.[216]

The disturbing implication of this reasoning is that as a matter of domestic law, these parliamentary privileges and implied freedoms would defeat article 4 of the Genocide Convention. That article states: ‘Persons committing genocide ... shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.’ Yet legislation authorising genocide, or any other international crime, so long as it was constitutionally valid, would not be reviewable by an Australian court. To paraphrase de Smith, while Parliament justifies its freedom of speech privilege on the ‘welfare of the nation’, citizens the victim of genocidal legislation, denied redress against Parliament, may not be convinced that parliamentary privilege is protecting their welfare.[217]

VI SUBSEQUENT DEVELOPMENTS

A Supreme Court Decisions

The judgment of the Full Court of the Federal Court in Nulyarimma has been subsequently considered and applied by the Supreme Courts of South Australia and Victoria.

1 Sumner v United Kingdom of Great Britain

In Sumner v United Kingdom of Great Britain[218] the plaintiff, Darrell Sumner, sought an injunction in the Supreme Court of South Australia to restrain the building of the Hindmarsh Bridge and the resultant ‘desecration to the site and the culture of the Ngarrindjeri people’.[219] The plaintiff sought to rely upon the Genocide Act 1969 (UK) (‘UK Act’) in support of his application. The plaintiff submitted that the UK Act applied extraterritorially in Australia on the basis that:

1. genocide is a crime of universal jurisdiction;[220]
2. there is no Australian or South Australian legislation implementing the Genocide Convention; and
3. there is a sufficient connection between the Ngarrindjeri People and the United Kingdom based on the history of the colonisation of Australia.[221]

Nyland J was not persuaded that jurisdiction could be exercised under the UK Act and refused the application. Her Honour noted that most of the issues raised by the plaintiff had already been considered in Nulyarimma and that that decision represented ‘the current state of the law on the topic of genocide in Australia’.[222]

The plaintiff appealed the decision, and the Full Court unanimously dismissed the appeal. The Court cited Nulyarimma as authority for the proposition that genocide is not an offence under Australian law.[223] The Court referred to the argument based on the UK Act as ‘doomed to failure’ and stated that it had no application in South Australia.[224]

2 Thorpe v Kennett

In Thorpe v Kennett[225] the Supreme Court of Victoria considered whether the offence of genocide forms part of the law in Victoria. In that case, Robert Thorpe sought to have the then Premier of the State of Victoria, Jeffrey Kennett, charged with genocide. In support of the charge, Mr Thorpe referred to a number of acts of Mr Kennett including his refusal to recognise the Gunai under Booran as a sovereign people and his role in the enactment of the Land Titles Validation (Amendment) Act 1998 (Vic). Warren J adopted the reasoning of the majority in Nulyarimma and Nyland J in Sumner to hold that genocide was not recognised as part of the criminal law in Victoria. In relation to the judgment of Merkel J in Nulyarimma, her Honour stated:

I have strong reservations upon accepting the approach followed by Merkel J in Nulyarimma and Buzzacott to the effect that by the signing of an international treaty or convention the provisions of such document are immediately incorporated into the law of the jurisdiction. In my view the consequences of such incorporation lead me to be very wary of such approach.[226]

With respect, Warren J has clearly misconstrued Merkel J’s judgment, which was concerned with customary international law rather than conventional international law.[227] At no stage did Merkel J suggest that international treaties could be automatically incorporated into domestic law in Australia.

Warren J went on to state that even if genocide was a crime in Victoria, she did not consider the intent requirement of genocide to be satisfied. Having surveyed the evidence of the plaintiff, which covered various aspects of the treatment of indigenous Australians in Victoria’s history, her Honour stated: ‘The materials, in part, tell of a tragic time in the history of this State but of itself such materials cannot demonstrate on the necessary basis an intent of the respondent.’[228]

B Parliamentary Responses

The decision in Nulyarimma that genocide is not a crime in Australia was clearly of concern to the legislature, and a Bill has been introduced into Parliament to recognise genocide as a crime under Australian law.[229] If enacted, the Bill would amend the Genocide Convention Act 1949 (Cth) to create a specific offence of genocide.[230] The Bill broadens the scope of the physical element of the Genocide Convention definition in the following way:

any of the following acts committed with intent to destroy, in whole or in part, a distinct group of people including, but not limited to, a national, ethnical, racial or religious group, or a group based on gender, sexuality, political affiliation or disability as such:[231]

The expansion under the Bill of the physical element of the definition of genocide, and the consequent additional protection it provides to various groups, is to be welcomed. Of course, as a matter of international law, universal jurisdiction will most likely only apply where the crime fits the Genocide Convention definition.

Clause 10 of schedule 1 of the Bill states that no person shall be charged with an offence under the Act unless that person ‘(a) is an Australian citizen; or (b) is present in Australia.’ This clause leads to the curious result that if a non-citizen committed genocide in Australia and then fled overseas they may not be able to be extradited to Australia on the basis of alleged genocide, because they could not be charged with that crime. The universal jurisdiction that attaches to genocide is unrestricted by the territorial and nationality principles,[232] and the wording of the Bill at the time of writing seems to impose an unnecessary limitation upon the genocide prosecutions that Australia could bring.

There are no policy reasons against such a broader application of jurisdiction and compelling policy reasons in favour of it. Clearly, one argument against extraterritorial legislation is that it may result in an unproductive judgment, for example, if the offender is not within Australia or amenable to extradition.[233] However, unproductive judgments are unlikely, given the duty upon other parties to the Genocide Convention to prosecute or extradite alleged offenders. Another argument against extraterritorial operation is that it ‘may result in a conflict with international law or comity.’[234] Given that genocide is recognised as a universal crime under international law, there is no conflict in this case with either international law or comity. The status of genocide as a jus cogens crime indicates that it is a matter in which all states have a common interest in preventing and prosecuting. It could be argued that international crimes are ideally prosecuted by international tribunals in the interest of non-selectivity and inappropriate foreign intervention. However, the limited jurisdiction of the International Criminal Tribunal for the former Yugoslavia[235] and the International Criminal Tribunal for Rwanda,[236] and the fact that the Permanent International Criminal Court has not yet come into operation, mean that Australia ought to seek maximum flexibility in prosecuting crimes of genocide.

On 14 October 1999 the Senate referred the Bill to the Legal and Constitutional References Committee for inquiry and report.[237] The Committee is also required to consider, inter alia: laws in other jurisdictions that have implemented the Genocide Convention; the implications of Nulyarimma; the extraterritorial application of Australian law, particularly as it may relate to East Timor; and the relationship between Australian and international criminal law enforcement mechanisms for bringing perpetrators of genocide to justice.[238]

VII UNFINISHED BUSINESS

A Implementation and Reform of the Genocide Convention

At the time of writing, it is clear that Australia is in breach of its international obligations to prohibit the crime of genocide. As a matter of international law, Australia cannot plead its own domestic rules concerning the relationship between customary international law and domestic law as a defence to this breach. Genocide must be declared a crime under Australian law. The Anti-Genocide Bill 1999 (Cth) if enacted would satisfactorily implement Australia’s obligations.

For most Australians, genocide is still a crime ‘unthinkable in Australia’.[239] It is still a crime that occurs in other places. For most Australians, the need to implement fully the Genocide Convention and declare genocide a crime is most urgent because of genocidal acts in other countries. For example, the possibility that alleged war criminals arriving from Kosovo[240] or East Timor could not be charged with genocide or extradited on charges of genocide might shock members of the Australian community. This is despite claims of genocide already brought by representatives of the Aboriginal population, and judicial recognition that acts of genocide may have occurred in Australia’s past against the Aboriginal population. While implementation of the crime of genocide under Australian law is important, education about our own genocidal culpability is also long overdue.

Education about genocide, and other measures to prevent its occurrence, must be supported by legislation if Australia is to fulfil its international obligations. This is because the Genocide Convention requires ratifying states not only to enact legislation to punish genocide, but also to enact legislation to prevent the crime of genocide.[241]

This case also suggests that reforms to the Genocide Convention should be considered. These could include a strengthening of article 2 by widening the intent requirement to include negligent genocide.[242] Commentators have suggested that this could protect indigenous populations from negligent economic policies which have the effect of destroying them as a group.[243] It is also important that cultural genocide be recognised. The culture of different groups forms the basis of their identity, contributes to the richness of human existence, and should be protected.[244] Article 2 marks a limited recognition of cultural genocide but the article must be fortified to protect culture expressly.[245]

These changes could be objected to by a number of states parties. To prevent these countries renouncing their ratification of the Genocide Convention, and the international crime of genocide taking a backward step, these changes should take the form of an optional protocol.[246] The development of the Genocide Convention is an important task for the United Nations, which continues to witness regular commission of the crime.[247] As acknowledged by Glaser and Possony,

[t]he power of the United Nations is that of moral persuasion, but there can be no such moral power if the United Nations — through omissions and tergiversations — covers up for the criminal immorality of genocide and fails to define the standards which its member states are obliged to observe.[248]

However, it should be noted that Australia does not need to wait for such an optional protocol to create its own broader offence of genocide. Indeed, creation of such an offence in Australia could contribute to the creation of customary international law.

B Adoption of International Law in Australia

In Nulyarimma the Court generally failed to specify which approach it was advocating (according to the incorporation–transformation framework) in determining whether the international crime of genocide had been implemented in Australian law. This is typical of the vague way in which Australian courts have previously dealt with this issue.[249] However, courts should be encouraged to clearly identify the approach being taken, as this will increase certainty under the law and will make judicial policy judgments more visible. For example, the approach taken may be influenced by particular views on sovereignty, the importance of harmonising domestic and international laws, and the proper roles of Parliament and the courts. The appropriate approach in a particular case may also depend upon the type of international law being considered.

Even though the issue was directly raised in Nulyarimma, only Merkel J took the opportunity to examine thoroughly the relationship between international customary law and domestic law. Fortunately, the approach adopted by his Honour, the hard incorporation theory, is compelling and will, it is hoped, be the model adopted by the High Court when it comes to consider this issue. This is because this theory promotes harmonisation of international and domestic laws, while respecting the constitutional role of Parliament, in that international law which is inconsistent with statute cannot be adopted in domestic law. Unlike conventional international law, direct incorporation of customary international law does not involve a risk of the executive circumventing Parliament.[250] Furthermore, ‘there is no fundamental reason why incorporating international law into municipal law should be regarded as an [sic] legislative rather than a judicial function.’[251] In the case of jus cogens crimes, it is particularly important that Australian courts adopt international law, as Merkel J accepted.

C Constitutional Reform

Although the incorporation of customary international human rights standards into domestic common law should be welcomed, it must be recognised that such common law standards cannot protect individuals in the face of inconsistent legislation.[252] This is because, in the event of a conflict between the common law and statute, parliamentary sovereignty dictates that statute prevails.[253] While a ‘rights culture’ does not yet exist in Australia, a long-term objective must be the express constitutional recognition of certain rights. Were rights such as those protected by the Genocide Convention constitutionally entrenched, Government legislation which authorised genocide would be constitutionally invalid and reviewable by the courts. This would remove the disturbing possibility of the legislature claiming parliamentary privilege, on the basis of the good of the nation, to commit a jus cogens crime.

Another approach to entrenching rights would be to provide within the Australian Constitution for the automatic adoption of jus cogens norms, which would be stated to prevail over inconsistent domestic law. While this would be quite a remarkable and controversial change to the constitution of a common law country such as Australia, it is a feature of the constitutions of a number of civil law countries. For example, article 25 of the Basic Law of the Federal Republic of Germany provides: ‘The general rules of public international law shall be an integral part of federal law. They shall override laws and directly establish rights and obligations for the inhabitants of the federal territory.’[254] Such an amendment should be considered as part of Australia’s debate on constitutional reform. While it is acknowledged that constitutional change is generally difficult, and that the suggested change would be unlikely to succeed, it is submitted that this would at least provoke discussion on Australia’s implementation of its human rights obligations and increase rights awareness within the general community.

VIII CONCLUSION

Nulyarimma is the most recent case in Australia that has directly considered the relationship between customary international law and domestic law, including criminal and non-criminal customary norms. While the approach of Merkel J appears the most appropriate, it represented the minority view in the case and it is by no means certain that it will commend itself to judges in future cases. We must still await authoritative resolution of this important issue by the High Court when, hopefully, a new doctrinal clarity will emerge. Although Parliament has begun to respond to the failure of the majority in Nulyarimma to recognise genocide as a crime under Australian law, the proposed changes must be part of a wider package of reforms, including education and constitutional reform.

In his concluding submissions to the Court, senior counsel for the appellants asked the court, in the event that it declared that genocide did not form part of the law of Australia, to clearly state that Australia has

failed to adhere to its international obligations and has failed to acknowledge as part of its law a rule which is of ... fundamental importance and ... universal significance. ... The greatest tragedy in this case would be that you are against us on the proposition and no-one even notices.[255]

It is hoped that this article will make some contribution towards exposing Australia’s poor record on human rights implementation, the limitations of the genocide definition, and the need for reform to better protect human rights. The Anti-Genocide Bill currently before Parliament and the forthcoming inquiry by the Legal and Constitutional References Committee represent an opportunity for Australia to complete the business begun by the enactment of the Genocide Convention Act 1949 (Cth).

[*] LLB (Hons), BCom (Hons) (Melb); Solicitor, Arthur Robinson & Hedderwicks, Melbourne; Postgraduate student, Law School, The University of Melbourne. The author would like to thank Professor Hilary Charlesworth, Pene Mathew, Tania Voon and the anonymous referees for their helpful comments on this article, and Julian Burnside QC and Nehal Bhuta for generously making available their material on the case. Part of this article is based on a submission, for which the author was the lead author, to the Senate Legal and Constitutional References Committee in relation to its Inquiry into the Anti-Genocide Bill 1999 (Cth).

[1] Commonwealth, Parliamentary Debates, House of Representatives, 30 June 1949, 1875–6 (Leslie Haylen).

[2] [1999] FCA 1192; (1999) 165 ALR 621 (‘Nulyarimma’).

[3] Opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) (‘Genocide Convention’). As at 9 February 2000, there were 130 states parties.

[4] Diane Orentlicher, ‘The Law: Genocide’ in Roy Gutman and David Rieff (eds), Crimes of War (1999) 153, 153.

[5] Genocide Convention, above n 3, art 2. The Genocide Convention was unanimously adopted on 9 December 1948: Lyal Sunga, The Emerging System of International Criminal Law (1997) 108.

[6] Statute of the International Tribunal for the Former Yugoslavia, SC Res 827, 48 UN SCOR (3217th mtg), art 4(2), UN Doc S/Res/827 (1993); 32 ILM 1203 (‘Statute of the Yugoslavia Tribunal’).

[7] Statute of the International Tribunal for Rwanda, SC Res 955, 49 UN SCOR (3452nd mtg), art 2(2), UN Doc S/Res/955 (1994); 33 ILM 1598 (‘Statute of the Rwanda Tribunal’).

[8] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 37 ILM 999, art 6 (not yet in force). As at 9 March 2000, there were 7 states parties.

[9] Genocide Convention, above n 3, art 3.

[10] A-G (Israel) v Eichmann (1962) 36 ILR 277, 298–304 (‘Eichmann’).

[11] ‘In response to charges of genocide against the Guyaki and Yanomami Indians, for example, the governments of Brazil and Paraguay have denied intent’: Leo Kuper, International Action against Genocide, Report No 53 (London Minority Rights Group, 1984) 5.

[12] See ‘Genocide Convention: United States of America Reservations and Understandings’ (1989) 28 ILM 782. See also C C Joyner, ‘The United States and the Genocide Convention’ (1987) 27 Indigenous Journal of International Law 411, 442–4; Lawrence LeBlanc, ‘The Intent to Destroy Groups in the Genocide Convention: The Proposed US Understanding’ (1984) 78 American Journal of International Law 369.

[13] Leo Kuper, The Prevention of Genocide (1985) 12–13.

[14] LBC, Laws of Australia, vol 1 (at 29 March 2000) 1 Aborigines and Torres Strait Islanders, ‘1.7 International Law’ [14].

[15] Prosecutor v Akayesu, Case No ICTR-96-4-T (2 September 1998); 37 ILM 1401, 1406.

[16] Robert Bledsoe and Boleslaw Boczek, The International Law Dictionary (1987) 68.

[17] Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 72 (Dawson J); Josef Kunz, ‘The United Nations Convention on Genocide’ (1949) 43 American Journal of International Law 738, 742.

[18] Sunga, above n 5, 109, fn 8.

[19] Economic and Social Council of the United Nations.

[20] UN Doc E/AC.25/S-R 1–28, cited in Matthew Lippman, ‘The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide’ (1985) 3 Boston University International Law Journal 1, 30–1.

[21] Sunga, above n 5, 109, fn 8; Orentlicher, ‘The Law: Genocide’, above n 4, 154; Lippman, above n 20, 45.

[22] See Jerry Kammer, The Second Long Walk: The Navajo–Hopi Land Dispute (1980); Robert Davis and Mark Zannis, The Genocide Machine in Canada: The Pacification of the North (1973), cited in Sunga, above n 5, 109, fn 8.

[23] Orentlicher, ‘The Law: Genocide’, above n 4, 154.

[24] M C Bassiouni, ‘A Functional Approach to “General Principles of International Law”’ (1990) 11 Michigan Journal of International Law 768, 801–9.

[25] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, 8 ILM 679, art 53 (entered into force 27 January 1980).

[26] Ian Brownlie, Principles of Public International Law (5th ed, 1998) 515.

[27] Ibid 516–17; M C Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’ (1996) 59(4) Law and Contemporary Problems 63, 67; I A Shearer, Starke’s International Law (11th ed, 1994) 49.

[28] Bassiouni, ‘International Crimes’, above n 27, 69.

[29] Ibid.

[30] Ibid 70; M C Bassiouni, ‘From Versailles to Rwanda: The Need to Establish a Permanent International Criminal Court’ (1996) 10 Harvard Human Rights Journal 11.

[31] See, eg, Sunga, above n 5, 115.

[32] Bassiouni, ‘International Crimes’, above n 27, 68; Restatement (3rd) of the Law: The Foreign Relations Law of the United States (1987) vol 2, § 702, 161–2.

[33] [1951] ICJ Rep 15, 23.

[34] Brownlie, above n 26, 514–17; Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th revised ed, 1997) 58–60; I A Shearer, Starke’s International Law, above n 27, 48–50; Bassiouni, ‘International Crimes’, above n 27, 63; Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (1989) 188–97; Claudia Annacker, ‘The Legal Régime of Erga Omnes Obligations in International Law’ (1994) 46 Austrian Journal of Public and International Law 131.

[35] Bassiouni, ‘International Crimes’, above n 27, 66. See also Diane Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Law Journal 2537, 2542; M Scharf, ‘Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?’ (1996) 31 Texas International Law Journal 1, 4; R Weiner, ‘Trying to Make Ends Meet: Reconciling the Law and Practice of Human Rights Amnesties’ [1995] St Mary’s Law Journal 857, 867.

[36] Case Concerning the Barcelona Traction, Light and Power Co Ltd (New Application: 1962) (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3, 32 (‘Barcelona Traction (Second Phase)’).

[37] See also Sunga, above n 5, 115.

[38] John Gibson, Dictionary of International Human Rights Law (1996) 180.

[39] Prosecutor v Akayesu, Case No ICTR-96-4-T (2 September 1998); 37 ILM 1401, 1406.

[40] Diane Amann, ‘International Decisions: Prosecutor v Akayesu’ (1999) 93 American Journal of International Law 195.

[41] For example, Australian discrimination law tends to focus on formal equality rather than substantive equality. This means that issues of structural discrimination are often not addressed: Hilary Charlesworth, ‘The Australian Reluctance about Rights’ in Philip Alston (ed), Towards an Australian Bill of Rights (1994) 21, 35–6.

[42] For example, religious institutions are granted certain exemptions under ss 37–8 of the Sex Discrimination Act 1984 (Cth). The Act purports to implement the Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 19 ILM 33, 1249 UNTS 13 (entered into force 3 September 1981).

[43] For example, the Human Rights and Equal Opportunity Commission, established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth), cannot enforce its decisions in the courts.

[44] Charlesworth, above n 41, 34–40.

[45] Philip Alston, ‘An Australian Bill of Rights: By Design or Default?’ in Philip Alston (ed), Towards an Australian Bill of Rights (1994) 1, 3.

[46] Charlesworth, above n 41, 41–4.

[47] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158

CLR 1.

[48] Joint Standing Committee on Foreign Affairs, Defence and Trade, A Review of Australia’s Efforts to Promote and Protect Human Rights, Parl Paper No 514 (1992) 30.

[49] Charlesworth, above n 41, 26.

[50] Alston, above n 45, 4–5.

[51] Commonwealth, Parliamentary Debates, Senate, 15 August 1974, 965 (Donald Willesee, Minister for Foreign Affairs).

[52] Memorandum from the Acting Secretary of the Attorney-General’s Department, G A Watson, to the Secretary of the Department of External Affairs, 6 April 1949, Ref 47/740 (copy on file with author).

[53] Review of Commonwealth Criminal Law, Final Report (1991) 86–7.

[54] Transcript of Proceedings, Nulyarimma v Thompson (Full Court of the Federal Court of Australia, Wilcox, Whitlam and Merkel JJ, commencing 31 May 1999) 34 (‘Appeal’) (Julian Burnside QC).

[55] Kunz, above n 17, 743.

[56] Transcript of Proceedings, Nulyarimma v Thompson (Full Court of the Federal Court of Australia, Wilcox, Whitlam and Merkel JJ, commencing 31 May 1999) 34 (‘Appeal’) (Julian Burnside QC).

[57] Commonwealth, Parliamentary Debates, House of Representatives, 30 June 1949, 1871 (Archie Cameron).

[58] E P Aughterson, Extradition: Australian Law and Procedure (1995) 59–60.

[59] R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [No 3] [1999] UKHL 17; (1999) 2 All ER 97 (‘Pinochet’). See also R v Evans and Bartle; Ex parte Augusto Pinochet Ugarte (Unreported, UK Court of Appeal, Lord Bingham CJ, Collins and Richards JJ, 28 October 1998); R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [1998] UKHL 41; [1998] 4 All ER 897; R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [No 2] [1999] UKHL 1; [1999] 2 WLR 272. See Andrew Mitchell, ‘Leave Your Hat On? Head of State Immunity and Pinochet?’ (1999) 25 Monash Law Review 225.

[60] Wadjularbinna Nulyarimma, Isobel Coe, Billy Craigie and Robbie Thorpe.

[61] Re Thompson; Ex parte Nulyarimma [1998] ACTSC 136; (1998) 136 ACTR 9.

[62] In relation to the Ten Point Plan, see Prime Minister, Commonwealth of Australia, Amended Wik 10 Point Plan, Press Release (8 May 1997); see also ‘The Prime Minister’s Ten Point Plan as at 8 May 1997’ [1997] UNSWLawJl 1; (1997) 20 University of New South Wales Law Journal 522; Richard Bartlett, ‘A Return to Dispossession and Discrimination: The Ten Point Plan’ [1997] UWALawRw 3; (1997) 27 University of Western Australia Law Review 44.

[63] Buzzacott v Hill [1999] FCA 639 (Unreported, Full Court of the Federal Court of Australia, Heerey, Nicholson and Finn JJ, 10 May 1999).

[64] Ibid [3].

[65] United Nations Educational, Scientific and Cultural Organisation.

[66] Opened for signature 23 November 1972, 1037 UNTS 151, 11 ILM 1358 (entered into force 17 December 1975) (‘World Heritage Convention’).

[67] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 624.

[68] Ibid 640–1 (Merkel J).

[69] Ibid 627 (Wilcox J), 632 (Whitlam J), 641–2 (Merkel J).

[70] Ibid.

[71] Ibid.

[72] Ibid 641.

[73] I A Shearer, ‘The Relationship between International Law and Domestic Law’ in Brian Opeskin and Donald Rothwell (eds), International Law and Australian Federalism (1997) 34, 36.

[74] David Walker, The Oxford Companion to Law (1980) 852.

[75] For example, Hans Kelsen and Alfred Verdross. For bibliographic information on Kelsen and Verdross see ibid 699, 1273. See also the theories of Hersch Lauterpacht in relation to the supremacy of international law over domestic law: Elihu Lauterpacht (ed), International Law: Being the Collected Papers of Hersch Lauterpacht (1970) vol 1, 151–77, 216–30.

[76] David Walker, above n 74, 852. See, eg, Hans Kelsen, Principles of International Law (Robert Tucker trans, 2nd ed, 1966) 553; Alfred Verdross, Völkerrecht (3rd revised ed, 1955) [trans: International Law].

[77] Hans Kelsen, Pure Theory of Law (Max Knight trans, 2nd German ed 1960, 1967 trans ed) 320–47.

[78] Malanczuk, above n 34, 63. Cf Brownlie, above n 26, 33.

[79] Malanczuk, above n 34, 63.

[80] See Bledsoe and Boczek, above n 16, 9–10.

[81] Brownlie, above n 26, 32.

[82] David Walker, above n 74, 379.

[83] For example, Sir Gerald Fitzmaurice and Rousseau: see Brownlie, above n 26, 33–4.

[84] Ibid 34.

[85] The ‘practical consequences of the relationship between international law and domestic law demonstrate that it is critical to determine whether the doctrine of incorporation or the doctrine of transformation better describes their relationship’: Gillian Triggs, ‘Customary International Law and Australian Law’ in M P Ellinghaus, A J Bradbrook and A J Duggan (eds), The Emergence of Australian Law (1989) 376, 382.

[86] Kristen Walker, ‘Treaties and the Internationalisation of Australian Law’ in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 204, 228ff.

[87] Sir Anthony Mason, ‘International Law as a Source of Domestic Law’ in Brian Opeskin and Donald Rothwell (eds), International Law and Australian Federalism (1997) 210, 212; Kristen Walker, above n 86, 228.

[88] Ibid 229.

[89] Ibid.

[90] L Erades, Interactions between International and Municipal Law: A Comparative Case Law Study (1993) 660.

[91] See James Crawford and W R Edeson, ‘International Law and Australian Law’ in K Ryan (ed), International Law in Australia (2nd ed, 1984) 71, 73.

[92] Kristen Walker, above n 86, 228.

[93] Mason, above n 87, 214.

[94] Kristen Walker, above n 86, 229.

[95] Mason, above n 87, 212.

[96] Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529, 569 (Stephenson LJ). See also F A Mann, Foreign Affairs in English Courts (1986) 124. This view is shared by Merkel J: see Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 648.

[97] Kristen Walker, above n 86, 230.

[98] See, eg, Stephen Donaghue, ‘Balancing Sovereignty and International Law: The Domestic Impact of International Law in Australia’ [1995] AdelLawRw 6; (1995) 17 Adelaide Law Review 213, 214 who describes it as a ‘doctrinal dispute ... largely without practical consequence.’

[99] Kristen Walker, above n 86, 231.

[100] Ibid.

[101] Donaghue, above n 98, 259. See also Anglo–Norwegian Fisheries Case (United Kingdom v Norway) [1951] ICJ Rep 116; North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) [1969] ICJ Rep 3; Nicaragua v United States of America (Merits) [1986] ICJ Rep 14.

[102] Ibid 214.

[103] Walker v Baird [1892] UKLawRpAC 41; [1892] AC 491.

[104] In Britain and Australia the Ministers who head the executive departments are also part of the legislature.

[105] Shearer, ‘The Relationship between International Law and Domestic Law’, above n 73, 44; Mason, above n 87, 212; Donaghue, above n 98, 225. In both The Parlement Belge [1880] UKLawRpPro 10; (1880) 5 PD 197 and Walker v Bird [1892] UKLawRpAC 41; [1892] AC 491 it was held that unincorporated treaties did not affect private rights. In Australia see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 74 (McHugh J): ‘The entry into a treaty by Australia does not change the domestic law’; Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298, 303–5 (Gummow J); Simsek v Macphee (1982) 148 CLR 636, 641–2 (Stephen J); Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287 (Mason CJ and Deane J): ‘a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law’.

[106] Brownlie, above n 26, 47.

[107] Ellerman Lines Ltd v Murray [1931] AC 126; Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298, 304 (Gummow J); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38 (Brennan, Deane and Dawson JJ): ‘the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty’; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.

[108] [1945] HCA 3; (1945) 70 CLR 60. Although note Potter v Broken Hill Proprietary Co Ltd [1906] HCA 88; (1906) 3 CLR 479, 495 (Griffith CJ), 506–7 (Barton J), 510 (O’Connor J).

[109] Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 80–1. Williams J referred to Chung Chi Cheung v The King [1938] UKPC 75; [1939] AC 160.

[110] [1948] HCA 37; (1949) 77 CLR 449, 477.

[111] Ibid (references omitted).

[112] Mason, above n 87, 215. See also Donaghue, above n 98, 265.

[113] Geoffrey Sawer, ‘Australian Constitutional Law in Relation to International Relations and International Law’ in D P O’Connell (ed), International Law in Australia (1965) 35, 50 in Mason, above n 87, 215.

[114] Some of these observations were consistent with the transformation approach: Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177, 214 (Windeyer J); New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337, 407 (Gibbs J), 496 (Jacobs J). Others were consistent with the incorporation approach: New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337, 500–2 (Murphy J); A Raptis & Son v South Australia [1977] HCA 36; (1977) 138 CLR 346, 394–5 (Murphy J).

[115] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 629.

[116] Ibid 628.

[117] Shearer, ‘The Relationship between International Law and Domestic Law’, above n 73, 44.

[118] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 629.

[119] [1977] 1 QB 529.

[120] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 650.

[121] Ibid 651, citing Reference re: Powers of Ottawa (City) and Rockcliffe Park [1943] SCR 208, 214, 230–1 (Duff CJ), 232–3 (Rinfret J); 2 DLR 481, 484, 501 (Duff CJ), 502–4 (Rinfret J); Reference re: Exemption of United States Forces from proceedings in Canadian Criminal Courts [1943] SCR 483, 516 (Taschereau J); 4 DLR 11, 41.

[122] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 651, citing Marine Steel Ltd v Government of the Marshall Islands [1981] 2 NZLR 1; Governor of Pitcairn and Associated Islands v Sutton [1995] 1 NZLR 426, 436 (Richardson J).

[123] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 651. See also Shearer, ‘The Relationship between International Law and Domestic Law’, above n 73, 38–40.

[124] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 653.

[125] Ibid, citing Compania Naviera Vascongado v SS Cristina [1938] AC 485, 497 (Lord Macmillan).

[126] See Chung Chi Cheung v The King [1938] UKPC 75; [1939] AC 160, 168 (Lord Atkin).

[127] See G Sawer, ‘Australian Constitutional Law in Relation to International Relations and International Law and Australian Law’ in D P O’Connell (ed), International Law in Australia (1965) 35, 50; Mason, above n 87, 215.

[128] See also Merkel J’s statements in Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 666, where his Honour explains that there is no value judgment involved because adoption will occur if the established criteria are satisfied.

[129] Ibid 631 (Wilcox J), 638 (Whitlam J).

[130] Ibid 637.

[131] Ibid 661.

[132] Ibid 668.

[133] Ibid 662–3.

[134] [1876] UKLawRpExch 73; (1876) 2 Ex D 63.

[135] [1938] UKPC 75; [1939] AC 160.

[136] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 656.

[137] [1934] AC 586, 589.

[138] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 656.

[139] Ibid 637.

[140] Ibid.

[141] Ibid 656–7.

[142] Ibid 658, referring to Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 576 (Brennan J).

[143] Pinochet [1999] UKHL 17; (1999) 2 All ER 97. See generally Mitchell, ‘Leave Your Hat On?’, above n 59; Nehal Bhuta, ‘Justice without Borders? Prosecuting General Pinochet’ (1999) 23 Melbourne University Law Review 499.

[144] Pinochet [1999] UKHL 17; (1999) 2 All ER 97, 100–1 (Lord Browne-Wilkinson).

[145] Pinochet [1999] UKHL 17; (1999) 2 All ER 97, 135ff (Lord Hope). Lord Millett (at 179–80) and Lord Phillips (at 189–90) reached the same conclusion as Lord Hope on this point.

[146] Ibid 177.

[147] Ibid 177–8.

[148] Ibid.

[149] Ibid.

[150] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 635–7.

[151] (1962) 36 ILR 277.

[152] [1999] UKHL 17; (1999) 2 All ER 97, 175–8.

[153] Ibid 176 (Lord Millett).

[154] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 635.

[155] Malanczuk, above n 34, 113.

[156] Eichmann (1962) 36 ILR 277, 292 (emphasis added).

[157] Ibid 279.

[158] See also Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 661 (Merkel J).

[159] Re Demjanjuk, 603 F Supp 1468 (ND Ohio, 1985); Demjanjuk v Petrovsky, [1983] USCA6 165; 776 F 2d 571 (6th Cir, 1985).

[160] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 636.

[161] R v Withers [1975] AC 842, 858 (Viscount Dilhorne).

[162] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 663–4, citing R v Rogerson [1992] HCA 25; (1992) 174 CLR 268, 304 (McHugh J); R v Knuller (Publishing) Ltd [1973] AC 435, 457–8 (Lord Reid), 464–5 (Lord Morris), 479 (Lord Diplock), 490 (Lord Simon) and 496 (Lord Kilbrandon).

[163] See, eg, White v Paulsen, 997 F Supp 1380 (ED Wash, 1998) and Hawkins v Comparet-Cassani, 33 F Supp 2d 1244 (CD Cal, 1999).

[164] Eg, the second reading speech for the Criminal Code Bill 1995 (Cth) and the Crimes Amendment Bill 1995 (Cth): Commonwealth, Parliamentary Debates, House of Representatives, 1 March 1995, 1331–6 (Duncan Kerr, Minister for Justice).

[165] A T H Smith, ‘Judicial Law Making in the Criminal Law’ (1984) 100 Law Quarterly Review 46, cited in Marianne Giles, ‘Judicial Law-Making in the Criminal Courts: The Case of Marital Rape’ [1992] Criminal Law Review 407, 408.

[166] Timothy Jones, ‘Common Law and Criminal Law: The Scottish Example’ [1990] Criminal Law Review 292.

[167] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 629–30.

[168] [1876] UKLawRpExch 73; (1876) 2 Ex D 63, 203.

[169] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 629–30. For more information on this distinction see Carlos Vázquez, ‘The Four Doctrines of Self-Executing Treaties’ (1995) 89 American Journal of International Law 695; Foster & Elam v Neilson, 27 US [1829] USSC 16; (2 Pet) 253 (1829).

[170] Brownlie, above n 26, 50.

[171] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 630.

[172] [1876] UKLawRpExch 73; (1876) 2 Ex D 63, 193, 203. The issue was ‘the exercise of criminal jurisdiction as a corollary of the territorial status of the littoral sea’: Brownlie, above n 26, 44. See also Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 645–6 (Merkel J).

[173] Brownlie, above n 26, 44.

[174] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 665.

[175] Ibid 663, citing La Trobe University v Robinson [1972] VicRp 104; [1972] VR 883; Keeley v Justice Brooking (1979) 143 CLR 162; Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238; Hinch v A-G (Vic) [1987] VicRp 62; [1987] VR 721; Hinch v A-G (Vic) [1987] HCA 56; (1987) 164 CLR 15.

[176] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 665–6.

[177] Ibid 664–6.

[178] Ibid 664.

[179] See above nn 92–94, 124–128 and accompanying text.

[180] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 666.

[181] Ibid 667.

[182] Jones, above n 166, 299.

[183] Peter Nygh and Peter Butt (eds), Butterworths Australian Legal Dictionary (1997) 805; David Walker, above n 74, 895.

[184] Ibid.

[185] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 630.

[186] Ibid 666.

[187] Ibid 662.

[188] Ibid 637.

[189] Ibid 662.

[190] Ibid 663.

[191] Ibid, citing Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 68–9 (Latham CJ), 77 (Dixon J), 79, 81 (Williams J).

[192] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 637–8.

[193] Ibid 638.

[194] See discussion of intent requirement at above nn 11–15 and accompanying text.

[195] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 626–7.

[196] Ibid 638.

[197] Ibid 670.

[198] Re Thompson; Ex parte Nulyarimma [1998] ACTSC 136; (1998) 136 ACTR 9, 32–3.

[199] Ibid 33.

[200] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 671.

[201] Ibid.

[202] Merkel J identified the following international instruments which contain provisions protecting culture:

• ‘protection of cultural property in the event of armed conflict’ — Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 December 1977, 1125 UNTS 3 (entered into force 7 December 1978), art 53; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 December 1977, 1125 UNTS 609 (entered into force 7 December 1978), art 16; Convention for the Protection of Cultural Property in the Event of Armed Conflict, opened for signature 14 May 1954, 249 UNTS 215 (entered into force 7 August 1956); Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, opened for signature 17 May 1999 (not yet entered into force).

• ‘protection of cultural freedoms and practices’ — International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976, except art 41, entered into force 28 March 1979); International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 671.

[203] Ibid 672.

[204] Ibid.

[205] Ibid 669–71 (parliamentary privilege), 676–8 (World Heritage Convention, above n 66, as a source of law).

[206] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 638.

[207] See generally ibid 669–70 (Merkel J); Enid Campbell, Parliamentary Privilege in Australia (1966).

[208] See generally George Williams, Human Rights under the Australian Constitution (1999)

165–93. See also Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

[209] Re Thompson; Ex parte Nulyarimma [1998] ACTSC 136; (1998) 136 ACTR 9, 33 (Crispin J), citing Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 35 (Gibbs ACJ); R v Murphy (1986) 5 NSWLR 18, 30 (Hunt J); R v Jackson (1987) 8 NSWLR 116, 121 (Carruthers J).

[210] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 669, referring to Re Thompson; Ex parte Nulyarimma [1998] ACTSC 136; (1998) 136 ACTR 9, 33–4.

[211] Sir John Elliot’s Case (1629) 3 St Tr 294.

[212] Campbell, above n 207, 44.

[213] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 670 (Merkel J), referring to Re Thompson; Ex parte Nulyarimma [1998] ACTSC 136; (1998) 136 ACTR 9, 34 (Crispin J).

[214] Re Thompson; Ex parte Nulyarimma [1998] ACTSC 136; (1998) 136 ACTR 9, 34 (Crispin J); Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 670 (Merkel J).

[215] Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 670.

[216] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 571.

[217] Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law (6th ed, 1989) 314.

[218] [1999] SASC 456 (Unreported, Supreme Court of South Australia, Nyland J, 27 October 1999) (‘Sumner’); aff’d [1999] SASC 462 (Unreported, Full Court of the Supreme Court of South Australia, Doyle CJ, Debelle and Lander JJ, 2 November 1999) (‘Sumner appeal’).

[219] Sumner [1999] SASC 456 (Unreported, Supreme Court of South Australia, Nyland J, 27 October 1999) [3].

[220] Universal jurisdiction arises under customary international law rather than the Genocide Convention. Article 6 of the Genocide Convention permits a state to prosecute genocide if the act was committed in that state’s territory: see Genocide Convention, above n 3.

[221] Sumner [1999] SASC 456 (Unreported, Supreme Court of South Australia, Nyland J, 27 October 1999) [27].

[222] Ibid [28], [32], [40].

[223] Sumner appeal [1999] SASC 462 (Unreported, Full Court of the Supreme Court of South Australia, Doyle CJ, Debelle and Lander JJ, 2 November 1999) [50].

[224] Ibid [52]–[53].

[225] Thorpe v Kennett [1999] VSC 442 (Unreported, Supreme Court of Victoria, Warren J, 15 November 1999).

[226] Ibid [43].

[227] See for example, Nulyarimma [1999] FCA 1192; (1999) 165 ALR 621, 641–2 (Merkel J).

[228] Thorpe v Kennett [1999] VSC 442 (Unreported, Supreme Court of Victoria, Warren J, 15 November 1999) [45].

[229] Anti-Genocide Bill 1999 (Cth); Second reading speech: Commonwealth, Parliamentary Debates, Senate, 13 October 1999, 9612 (Brian Greig); Senator Brian Greig, Anti-Genocide Bill Gets the Go-Ahead, Press Release, No 99/546 (14 October 1999).

[230] Anti-Genocide Bill 1999 (Cth) sch 1 contains amendments to the Genocide Convention Act 1949 (Cth).

[231] Anti-Genocide Bill 1999 (Cth) sch 1 cl 2. In this paragraph, underlining indicates words that have been added to the Genocide Convention definition and strike-through indicates words that have been deleted from the Genocide Convention definition.

[232] See, eg, Andrew Mitchell, ‘The United States Extraterritorial War on Drugs’ [1998] SCULawRw 4; (1998) 2 Southern Cross University Law Review 36, 45–56.

[233] P H Lane, Lane’s Commentary on the Australian Constitution (2nd ed, 1997) 145.

[234] Ibid.

[235] Statute of the Yugoslavia Tribunal, above n 6, art 8.

[236] Statute of the Rwanda Tribunal, above n 7, art 7.

[237] Commonwealth, Journals of the Senate, No 79, (14 October 1999) 1890.

[238] See the Terms of Reference of the Inquiry into the Anti-Genocide Bill 1999 (Cth) in Commonwealth, Journals of the Senate, No 79, 14 October 1999, 1890. The Committee is to report back to the Senate on 30 June 2000. The author lodged a submission dated 18 February 2000 with Penelope Mathew, Professor Hilary Charlesworth and Associate Professor Robert McCorquodale to the Senate Legal and Constitutional References Committee in relation to its inquiry into the Anti-Genocide Bill 1999 (Cth): Hilary Charlesworth et al, ‘Submission to the Senate Legal and Constitutional References Committee — Inquiry into the Anti-Genocide Bill 1999’, Submissions to Senate Legal and Constitutional References Committee Inquiry into the Anti-Genocide Bill 1999 (2000) vol 2, 339.

[239] Commonwealth, Parliamentary Debates, House of Representatives, 30 June 1949, 1875–6 (Leslie Haylen).

[240] Transcript of Proceedings, Nulyarimma v Thompson (Full Court of the Federal Court of Australia, Wilcox, Whitlam and Merkel JJ, commencing 31 May 1999) 106 (‘Appeal’) (Julian Burnside QC).

[241] Genocide Convention, above n 3, art 1.

[242] Kurt Glaser and Stefan Possony, Victims of Politics: The State of Human Rights (1979) 37.

[243] Lippman, above n 20, 62.

[244] Ibid 62–3.

[245] Ibid.

[246] Ibid 64.

[247] Ibid 65.

[248] Glaser and Possony, above n 242, 41.

[249] Penelope Mathew, ‘International Law and the Protection of Human Rights in Australia: Recent Trends’ [1995] SydLawRw 15; (1995) 17 Sydney Law Review 177, 194–5; Rosalyn Higgins, ‘The Relationship between International Law and Regional Human Rights Norms and Domestic Law’ (1992) 18 Commonwealth Law Bulletin 1268, 1273.

[250] Donaghue, above n 98, 261.

[251] Ibid.

[252] Williams, above n 208, 15.

[253] Ibid 16, citing British Railways Board v Pickin [1974] UKHL 1; [1974] AC 765, 782; Building Construction Employees & Builders’ Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372, 405 (Kirby P). Cf Dr Bonham’s Case [1572] EngR 106; (1610) 8 Co Rep 107a, 118a; [1572] EngR 106; 77 ER 638, 652 (Coke CJ):

And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void ...

See also Union Steamship Co of Australia Pty Ltd v The Queen [1988] HCA 55; (1988) 166 CLR 1, 10.

[254] An English translation of art 25 of the Basic Law of the Federal Republic of Germany is reproduced in David Currie, The Constitution of the Federal Republic of Germany (1994) 354. Article 25 of the Grundgesetz provides: ‘Die allgemeinen Regeln des Völkerrechts sind Bestandteil des Bundesrechtes. Sie gehen den Gesetzen vor und erzeugen Rechte und Pflichten unmittelbar für die Bewohner des Bundesgebietes.’

[255] Transcript of Proceedings, Nulyarimma v Thompson (Full Court of the Federal Court of Australia, Wilcox, Whitlam and Merkel JJ, commencing 31 May 1999) 41 (‘Appeal’) (Julian Burnside QC).