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Australia will, I believe, ratify the convention and afterwards this Parliament will pass the necessary legislation to show other countries that we join in universal condemnation of the horror [of genocide].[1]
In 1949 the Australian Parliament passed the Genocide Convention Act 1949 (Cth) to approve Australia's ratification of The Convention on the Prevention and Punishment of Genocide 1948.[2] That Act did not make genocide a crime in Australia[3] – that was to be done once the Convention came into force. No such legislation has ever been passed, though a Commonwealth Bill proposing to make genocide a crime is presently before the Senate.[4] In international law, the prohibition against genocide is customary international law binding even on states not party to the Convention.[5]
While treaties only have effect in Australia if enacted by statute,[6] the position of customary international law is uncertain.[7] Historically the common law has automatically included recognised customary rules, subject to the qualification that they are not inconsistent with statute law or "a skeletal principle" of the common law (known as the "incorporation doctrine").[8] If this principle were recognised, genocide could be a common law crime. The most powerful objections to a common law crime of genocide are that: it is inconsistent with the codification of criminal law in Australia, particularly the Criminal Code 1995 (Cth);[9] or it is inconsistent with the principle that the courts may no longer create crimes.[10] However, statutes are to be construed, where possible, consistently with Australia's international obligations[11] and it is possible to find a reading of the Code that is consistent with Australia's obligation to provide for the punishment of genocide.[12] There is also an important difference between the courts creating a new crime and incorporating an existing crime of customary international law.[13]
Foremost, though, is the argument that Australia should not follow the incorporation doctrine, and should require customary international law, like treaties, to be enacted by statute in order to have direct effect in domestic law. Such an argument is founded in Australian approaches to parliamentary supremacy, the separation of powers and federalism. Parliamentary supremacy does raise important reasons for not giving direct effect to the law of treaties in domestic law but, as discussed below, the same concerns do not apply to customary international law.
Therefore, the crime of genocide can be received into common law and, on the preferable approach, already has been. Thus, this article contends that genocide constitutes a common law crime and that the contrary Federal Court decision in Nulyarimma v Thompson was wrongly decided.[14]
The proposition that genocide is a crime at common law, however, needs to be seen in the context of: first, international law; second, the historical evolution of the jurisprudence on the reception of customary international law; third, the High Court decisions dealing with international law; fourth, the Federal Court case Nulyarimma v Thompson; and, finally, the policy considerations of federalism. Each of these issues is addressed in the following Parts.
International law's two principle sources are treaty and customary international law (custom).[15] Understanding the status of the prohibition against genocide at international law requires an acknowledgment that the crime exists both as a matter of treaty law and custom. Indeed, as discussed below, the Genocide Convention is widely seen as codifying pre-existing custom.
Custom comprises two elements: state practice and opinio juris (a belief that the practice is dictated by law).[16] For custom to arise, there must be a consistent practice that is widespread among states[17] and evidence that the practice stems from opinio juris.[18] Examples of practice may include states' political and judicial actions, such as: "resolutions in the General Assembly, ... decisions of international judicial institutions, decisions of national courts, treaties and the general practice of international organs" as well as the actions of government departments, "legislative institutions, courts, diplomatic agents and political leaders".[19]
The International Court of Justice (ICJ) has sometimes been prepared to assume or infer the existence of opinio juris "on the bases of evidence of a general practice, or a consensus in the literature, or the previous determinations of ... international tribunals."[20] Further, resolutions of, and voting in, international fora may constitute evidence of both opinio juris and state practice (discussed below).[21]
Treaty law may interact with custom. Entry into a treaty provides evidence of state practice, though opinio juris would still be required to create custom.[22] A treaty codifying custom may also contain rules binding on non-parties as custom.[23] Otherwise, a specific treaty obligation takes precedence over general rules of custom.[24]
The prohibition against genocide is found in both treaty and custom,[25] and has become jus cogens.[26] Jus cogens rules emerge from custom but stand above treaty and ordinary principles of custom. Jus cogens describes a fundamental, inviolable international law principle: derogation from it is not possible; treaties breaching it have no validity; and it may only be modified by later principles of jus cogens.[27]
The Convention on the Prevention and Punishment of Genocide 1948 (the Convention) entered into force on 12 January 1951. This followed the United Nations General Assembly's unanimous 1946 declaration that genocide was an already existing crime at international law (which provides strong evidence of opinio juris).[28] Genocide's status as a crime under custom was confirmed by the ICJ, which held that the Convention's underlying principles bound all states.[29]
A conclusion that the prohibition against genocide is jus cogens is bolstered by the ICJ's later dictum that the prohibition was an obligation "erga omnes". [30] Obligations erga omnes bind all states and are owed to the international community at large.[31] While "erga omnes" is essentially a principle of standing, meaning any state can complain of any other state's breach of such obligations, it applies only to certain principles: some human rights (or at least gross violations) and all jus cogens obligations.[32] Therefore, all jus cogens rules impose obligations erga omnes.[33] Most commentators accept that it was in this latter sense, as a consequence of the prohibition being jus cogens, that the ICJ described the prohibition against genocide as erga omnes.[34] The number of jus cogens principles remains unsettled, but the status of prohibition against genocide as one of them is uncontroversial.[35] It has thus been a jus cogens principle at least since the entry into force of the Genocide Convention.[36]
The underlying principles of the Convention bind all states.[37] These underlying principles must include at least those aspects of the Convention contained in Articles 1 – 4.[38] Article 1 confirms the existence of the crime, and Article 4 imposes individual responsibility regardless of whether offenders are "constitutionally responsible rulers, public officials or private individuals." Article 2 defines genocide as:
any 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.
Committing the crime thus requires a "special" intent:[39] the acts must be done with "intent to destroy, in whole or in part, a ... group, as such". This standard of proof is difficult to meet in practice.[40] Article 3 provides that the "following acts shall be punishable":
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
The requirement of special intent, as well as Article 2 paragraphs (b) (regarding mental harm), (d) and (e) make it clear that ordinary domestic criminal laws of murder and manslaughter are insufficient to prosecute genocide as such.
While the crime's customary status is not in doubt, it is helpful to examine codifying resolutions of international fora to confirm what states believe to be the crime's elements.[41] In the Nicaragua Case[42] the ICJ accepted "General Assembly resolutions and resolutions of other international organisations ... as forms of state practice."[43] The ICJ saw voting at international conventions as expressions of opinio juris.[44] Further:
The Nicaragua analysis suggests that the [single action of] voting for a resolution in an international forum ... provides adequate state practice and opinio juris for the formation of customary rules.[45]
This approach to "instant customary law" remains controversial[46] but emphasises the importance of public acts of state Executives as evidence of opinio juris and state practice in the formation of custom.[47]
Within the United Nations, the Security Council included the Convention definitions of genocide in the Statutes for the International Criminal Tribunals for the Former Yugoslavia and Rwanda.[48] Further, the Rome Statute for the International Criminal Court (Rome Statute) also contains these definitions.[49] Some 148 states participated in the final vote adopting the Rome Statute: 128 approved the statute, and with it the inclusion of these definitions of genocide, while 21 abstained and a mere 7 voted against it.[50] This is not to suggest that these resolutions created custom: genocide is already jus cogens. However, this consistent practice and opinio juris supports the general view that the Convention settles the definition of crimes punishable as genocide.[51]
Another concept essential to genocide is that it is a crime of universal jurisdiction. Like the pirate, each perpetrator of genocide is "hostis humanis generis", an enemy of all humankind, and is justiciable by any state regardless of where his or her crimes were committed. This point is not directly acknowledged in the Convention,[52] but is widely accepted by commentators.[53]
As the crime of genocide exists as both treaty law and jus cogens, there are two potential paths for its reception into Australian law. First, domestic implementation of the Convention by Act of Federal Parliament under the external affairs power. Indeed, the Anti-Genocide Bill 1999 (Cth) proposes to do just that.[54] Some pressure towards enacting the Bill may come from the fact that Australia will need such implementing legislation to meet its obligations once the Rome Statute is ratified.[55] Unfortunately, the Australian government's position has been that our ordinary criminal law is sufficient to punish acts of genocide,[56] despite receiving advice from the Attorney General's department[57] and parliamentary committees[58] that this was not the case. Second, the crime of genocide at international law may have been received into common law (a proposition rejected in Nulyarimma v Thompson). Doctrinal arguments for reception are discussed in Part 3.
Several observations can be made about the crime of genocide. Genocide is a crime of individual responsibility at international law. As jus cogens it is among the highest order of international legal principles: no state has any power to derogate from, or avoid being bound by, the prohibition or the obligation to provide for punishment of the crime.[59] If any principle of custom can be received into Australian common law, it is this. A stronger-case example is inconceivable.
The common law courts followed their own track ... National judges seldom are experts in international law. Whenever ... confronted with international law, they are facing a branch of law with which they are unfamiliar. To an outsider international law is an uncalculable and infathomable (sic), vast body of law. It is a human inclination to abstain from the unknown ... therefore it is not to be wondered at that we saw English judges gradually keeping international law as much as possible outside their courtrooms.[60]
In common law jurisdictions the relationship between domestic and international law has, historically, caused confusion.[61] The debate is between two competing doctrines: "incorporation" and "transformation". Incorporation holds that, subject to certain qualifications, "the law of states ... is ... part of the law of the land".[62] That is, international law automatically becomes part of domestic law. The transformation doctrine holds that international law is only part of domestic law in so far as it has been brought into domestic law by statute, long established practice or prior judicial decisions.[63] A variant transformation doctrine (dubbed "soft transformation") contends that judicial decisions may receive custom into domestic law.[64] The incorporation and transformation doctrines are best seen as reflecting the historic constitutional struggle in common law jurisdictions between the Executive, courts and legislature that was settled by the doctrine of parliamentary supremacy.[65] Under parliamentary supremacy the Executive cannot make laws without Parliament's assent, resulting in the principle that treaties (subject to exceptions dealing with war[66]) ratified by the Executive create no domestic rights or obligations without an enabling statute.[67] Thus, the transformation doctrine applies to treaty law.
The underlying policy issue regarding the reception of custom into domestic law remains parliamentary supremacy.[68] Should both treaty and custom only be received domestically once "transformed" by statute? Given that the Executive may not make law without legislative assent, there are powerful reasons for this being the case regarding treaty law.[69] However, the Executive has little power to avoid being bound by custom (other than persistent objection) and no power to avoid jus cogens obligations.[70] Domestic courts would not, therefore, be allowing the Executive to make domestic law if they directly incorporated custom into common law.[71] This conclusion is strengthened by the fact that customary norms that are not jus cogens may be overridden by subsequent treaties[72] (as concluded by the Executive), making the relationship between customary and treaty law analogous to that between statute and common law. Hence, there are no compelling reasons against courts incorporating custom into common law. It would not strengthen the Executive at the legislature's expense, as the Executive's role in forming custom is at best limited.[73] It would not violate the separation of powers as the legislature could override even jus cogens rules with legislation[74] and (in theory) the Executive could over-ride a received rule by entering inconsistent treaties. Thus, both Executive and legislature could overrule any judicial reception of custom. That incorporation is not antithetic to common law systems is demonstrated by the fact that it is applied in England, Canada, New Zealand and the United States (see 4.6). Incorporation should thus be recognised as applying to custom.
Much ink has been spilt over these doctrines. Furthering confusion, in Australian cases "incorporation" often describes the need for treaties to be enacted by legislation before becoming domestic law, thus judges use the word to describe transformation.[75] This article uses "incorporation" to describe automatic reception of international law and "transformation" to describe reception by parliamentary or judicial act. Even this division is not necessarily strict. "Incorporation" relies on a judicial pronouncement on what international law has been received into common law, which approaches "soft transformation". The term "reception" is used to describe the outcome of either process. Ultimately, as discussed in Part 4, the incorporation/transformation distinction is "more apparent than real"[76] and the two doctrines may simply be glosses on the one approach.[77] Nonetheless, "soft transformation" has presented particular problems. As soft transformation holds that custom is only received by judicial decision, it necessarily suggests an exercise of judicial discretion without providing criteria for its exercise.[78]
In his ambitious survey of domestic implementation of international law, Erades concludes that Australia takes an incorporation approach where custom forms: "an inferior type of Australian law, for it should not be applied if conflicting with Statutes or 'rules finally declared by the courts'."[79] He notes that the final state of the law is unclear, but that "[t]here must apparently be something added to [custom] to render it worthy of judicial application. It must be 'recognised', 'established to the satisfaction of the court ...' or a 'universally recognised principle of international law'."[80]
This statement reveals that Erades shares a common misunderstanding. Nothing need be "added" to custom, but "any alleged rule of customary law must be proved".[81] This evidentiary issue explains many of the difficult passages in the case law.[82] Common law courts take judicial notice of custom by consulting a wide range of authorities, whereas the domestic law of foreign countries must be proved by the evidence of expert witnesses.[83] However, while judicial statements on the need for proof of a customary rule's existence abound, there is little precedent on how to assess such evidence.[84] Further, once a rule is established, giving it domestic content "in the sense of its actual application to a ... set of facts" may be difficult.[85] The cases "highlight the greater ease with which courts determine the meaning of treaty provisions compared with the existence and content of custom."[86] The cases do, however, make it clear that "domestic courts will not create a rule where the evidence is indeterminate."[87]
Two principle issues emerge in the incorporation/transformation debate. First, incorporation concerns finding evidence of an alleged rule of custom.[88] Second is the role of parliamentary supremacy. Transformation should apply to treaty law, to hold otherwise would allow Executive law-making.[89] However, incorporation can apply to custom without violating the separation of powers.[90] These principles can be seen in the case law, discussed next.
The incorporation/transformation debate is unresolved in Australia, though reliance has been placed upon the 1949 transformation view of Dixon J in Ching's Case.[91] However, on one view transformation merely seeks to qualify Blackstone's broad formulation of incorporation,[92] rendering transformation simply a qualified brand of incorporation (see 4.2). Justice Dixon appears not to have realised that Rand and Cheung had already limited the incorporation doctrine (see 4.2.1 and 4.2.2). Differences between the two positions are few. One is whether custom automatically becomes common law (absent conflicting rules), or whether such a rule is only received by an exercise of judicial discretion.[93] The former approach appears consistent with the English authorities and Mabo [No 2] (see 4.5), and avoids the problem of undefined judicial discretion to reject reception of custom.
With the "legitimate influence principle", however, the High Court may have taken a different approach (see 4.5). Many of the dicta surrounding this principle in cases concerning treaty law have been taken as favouring transformation.[94] However, there is no necessary inconsistency between the legitimate influence principle and receiving custom. As discussed in Part 3, different considerations of policy and constitutional doctrine apply regarding treaty and custom. The current position is best understood in the context of the incorporation doctrine's historical evolution and the Australian divergence from it. The position in comparable jurisdictions is also noted.
In England, incorporation prevails. Custom is part of common law, except where it conflicts with statute or fundamental principles of common law.[95] This doctrine is merely a qualification of the Triquet v Bath[96] principle expressed by Blackstone as "the law of states ... is ... adopted in its full extent by the common law, and is ... part of the law of the land".[97] This doctrine of "qualified incorporation" is also concerned with proof of any alleged customary rule.[98]
The modern line of qualified incorporation cases begins with West Rand,[99] which stated:
International law [doctrines] ... will be acknowledged and applied by our municipal tribunals when legitimate occasion arises ... But any doctrine so invoked must be one readily accepted as binding between states, and the international law sought to be applied must ... be proved by satisfactory evidence, which must shew (sic) either that the particular proposition put forward has been recognised and acted upon by our own country or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized state would repudiate it.[100]
The case discussed the need for convincing evidence proving custom. The plaintiff sought to establish, contentiously, that conquering states ordinarily succeed to all contractual responsibilities of previous sovereigns. In support, counsel relied on numerous passages from eminent jurists, not necessarily supporting his proposition when read in context.[101] Hence the court added:
[the maxim] that the law of states forms part of the law of England, ought not to be construed so as to include ... opinions of text-writers upon a question as to which there is no evidence that Great Britain has ever assented, and a fortiori if they are contrary to the principles of her law as declared by her courts. [102]
Thus, the case is consistent with qualified incorporation.
In Cheung v The King the Privy Council said: "It must always be remembered that ... [before] the Courts of this country ... international law has no validity save in so far as its principles are accepted and adopted by our domestic law".[103] This passage taken alone is ambiguous and might support transformation. The better approach is that it embodies the view that common law courts do not apply custom as such, but rather domestic rules reflecting received custom.[104] In this sense, the Council continued:
The Courts acknowledge the existence of a body of rules which states accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.[105]
This clearly states qualified incorporation's principal limitation: the received customary rule must not conflict with domestic statutes or "prior judicial decisions of final authority".[106]
Thus, English Courts have never required incorporation of customary rules by statute before applying them domestically.[107] Further, it was not doubted that English courts had power to try customary crimes of universal jurisdiction.[108] In In Re Piracy Jure Gentium[109] the Privy Council discussed the High Court of Admiralty's exercise of jurisdiction over pirates before any Act created a statutory jurisdiction over piracy.[110] Further, the Council discussed universal jurisdiction as vesting domestic courts with jurisdiction over: "piracy committed on the high seas by any National on any ship because a ... [pirate] has placed himself beyond the protection of any state ... [and] is justiciable by any state anywhere."[111]
The Council was dealing with a reference not about "piracy under any municipal Act ... but piracy jure gentium" on a criminal appeal from the Full Court of Hong Kong.[112] The clear assumption underlying the judgment is that, absent statute, all English courts have jurisdiction to try piracy jure gentium and that the crime's elements at common law are those of the crime at custom.[113] Further, these elements may evolve in step with international law. The Council repeatedly stated "International law was not crystallised in the 17th century, but is a living and expanding code",[114] presaging the majority approach in Trendtex (discussed below).
While the English courts qualified Blackstone's doctrine of incorporation they never completely retreated from it.[115] Some have contended that R v Keyn marked the overthrow of incorporation in favour of transformation.[116] However, the leading judgment of Cockburn CJ is consistent with incorporation: he was far more concerned with evidence of the existence of the rule contended for than with transformation.[117]
Any controversy was settled by the majority judgments of Lord Denning MR and Shaw LJ (Stephenson LJ dissenting) in the Trendtex Case.[118] The case concerned the doctrine of state immunity. Evidence before the court established that a customary doctrine of absolute state immunity had developed, moving ahead of English law which had received the earlier doctrine of restrictive state immunity. The question was whether the new rule could be received, or whether the doctrine of precedent meant the old rule prevailed. Lord Denning despite previously favouring transformation,[119] declared:
I now believe the doctrine of incorporation is correct. Otherwise I do not see that our courts could ever recognise a change in the rules of international law ... Seeing that the rules of international law have changed – and do change – and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law. It follows, too, that a decision of this court – as to what was the rule of international law 50 or 60 years ago – is not binding on this court today. International law knows no rule of stare decisis.[120]
Lord Denning also adverted to the policy goal of harmonisation with other European legal systems.[121] Shaw LJ agreed. His Lordship considered that were transformation adhered to the "strange result would follow" that English law might receive and retain a customary rule long after it had been "discarded and discredited everywhere else in the world".[122] Even in dissent, Stephenson LJ acknowledged compelling reasons to adopt the new rule (including consistency with the United States and Europe), though he felt bound by the doctrine of precedent.[123] The case is thus a powerful affirmation of incorporation, and more controversially of the principle that the doctrine of precedent does not apply to rules received from custom.[124]
There remains the argument that due to the influence of the European Union, and particularly the European Court of Human Rights, the relationship between international law and common law in England is now fundamentally different to that in other common law jurisdictions.[125] However, as was noted in Mabo [No 2] Australia's ratification of the First Optional Protocol to the International Covenant on Civil and Political Rights 1966 (allowing individual complaints to be brought before the United Nations Human Rights Committee) "brings to bear on the common law the powerful influence of the Covenant and the international standards it imports."[126] Though Australia has yet to experience England's "unenviable" history of adverse findings in human rights cases before an international body,[127] the policy considerations appear similar.[128] In human rights cases even the High Court has referred to decisions on European treaty law. Further, the effect of the growing internationalisation of world affairs and, consequently, law has been widely recognised.[129] This trend may have been accelerated in England by the policy goal of harmonisation with Europe.[130] Regardless, it is accepted that following the Trendtex Case[131] and Re International Tin Council[132] incorporation is the doctrine to be applied in England.[133]
In two cases a majority of the High Court addressed the issue of interaction between customary and common law. The first is Chow Hung Ching v The King,[134] which concerned the immunity of visiting armed forces and whether Chinese labourers employed by a visiting army in Papua New Guinea were immune from local criminal jurisdiction. McTiernan J and Williams J held that as the labourers were not part of that army, no question of customary immunity arose.[135] Latham CJ, Starke J and Dixon J took the existence and scope of the immunity as the logically prior question. Starke J quoted the Cheung incorporation principle as the relevant approach:
The Courts acknowledge the existence of a body of rules which states accept amongst themselves. On any ... issue they ... ascertain what the relevant rule is, and ... treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.[136]
Latham CJ declared: "International law is not as such part of the law of Australia (Chung Chi Cheung v The King, and see Polites v Commonwealth), but a universally recognised principle of international law would be applied by our courts: West Rand Central Gold Mining Co v The King."[137] This is best understood as meaning that international law as such is not part of the common law, but that clearly proven customary principles would be received. This approach underpins his analysis of the immunities of visiting forces, and on such a reading supports qualified incorporation.[138] Dixon J took the view that:
the theory of Blackstone ... that "the law of states ... is here adopted in its full extent by the common law, and is ... part of the law of the land" is now regarded as without foundation. The true view ... is "that international law is not a part, but is one of the sources, of English law."[139]
For this proposition Dixon J cited first an article by Brierly.[140] This 12-page article is a review of international law developments over 50 years. The only passage to which Dixon J could be referring is a two sentence summary of Rand:
the case ... [contains a] qualification of the old doctrine ... that international law forms part of the law of the land. Substantially, the court seems to have adopted what is surely the correct view, that international law is not a part, but one of the sources, of English law.[141]
As the discussion of Rand at 4.2.1 indicates, this statement is an oversimplification and it is unfortunate that Dixon J placed such reliance on it. Justice Dixon's confusing notion of a "source" of law is clarified slightly by his next sentence where, quoting Holdsworth, he declares: "In each case ... the court must consider whether the particular rule of international law has been received into, and so become a source of, English law."[142] This apparently means "that international law is only a historical or persuasive source for a rule ... [and that] there must be a judicial discretion not to apply an established [customary] rule".[143] The problem of this "soft" transformation approach[144] is that it does not indicate the criteria for exercising this discretion.[145] A further problem with the Holdsworth dictum is that it comes from an essay characterising R v Keyn as supporting transformation, a view generally rejected.[146]
The High Court addressed the issue of receiving custom on one other, earlier occasion. In Polites v The Commonwealth two Greek Nationals challenged conscription regulations on the basis of a customary rule prohibiting the conscription of aliens. The Court held that legislation "expressly permitted the making of such regulations"[147] and that given an inconsistent statute no question of custom could arise. However, Williams J noted that custom, once "established to the satisfaction of the courts, is recognised and acted upon as a part of English municipal law so far as it is not inconsistent with the rules enacted by statutes or finally declared by courts."[148] Further, Williams J saw the rule of statutory construction that Parliament does not intend without express words to breach international law as a corollary of this principle.[149] That is, he saw the rule of construction as derived from the incorporation doctrine. Thus, his opinion strongly supports incorporation.
These cases did not settle the law in Australia. However, in Ching three of five judges found that Australian common law could contain customary rules. The question was whether this occurred automatically through qualified incorporation (as Latham CJ and Starke J appeared to hold), or only when a judicial act created a new domestic rule from the "source" of international law (as Dixon J appeared to find).
High Court cases decided before Mabo [No 2][150] provide little assistance regarding the incorporation/transformation debate. Dicta in the Seas and Submerged Lands Case[151] show no common approach. Ambiguously, Gibbs J said "we have to apply English law, and are concerned with international law only if it has been accepted as part of English law."[152] Justice Mason acknowledged the origin of the concept of territorial waters in international law, but appeared unwilling to depart from the precedent of R v Keyn, even if international law had subsequently developed.[153] Following Denning MR's logic in Trendtex, this appears to support transformation, as incorporation would hold that common law rules adopting international law change with international law.[154] Justice Jacobs also appeared to favour the transformation interpretation of R v Keyn.[155] Justice Murphy appeared to accept as binding rules of international law that would attribute ownership of territorial waters to the Commonwealth[156] thus apparently supporting incorporation.
In Raptis v South Australia Murphy J adopted the unqualified doctrine of transformation (the Blackstone approach), and then proceeded to accept the Convention on the Territorial Sea and the Contiguous Zone 1958 as having "clarified" custom.[157] While this supports incorporation, Murphy J's leap from custom to treaty is inadequately reasoned.
Consequently, in Australia, the relationship between customary and domestic law remains unclear[158] as the issue simply has not been raised directly before the High Court.[159] The question thus arises as to whether recent Australian cases dealing principally with treaty law have laid down principles applicable to custom, or indicated the approach likely to be taken.
Several propositions regarding international law in Australia are now well established. Foremost is the principle that statutes are, in so far as possible, to be construed consistently with international law on the presumption that Parliament does not intend (without express words) to breach international law.[160] It has also been held that where terms of a treaty are directly reproduced in statute, the rules of interpretation of treaties at international law apply.[161] Further, the ratification of a treaty may serve as a statement to the Australian community that the Executive and its agencies intend to comply with the principles contained therein and so may give rise to a legitimate expectation that those principles will be considered in relevant administrative action.[162] Special considerations also arise in administrative law when a body is directed by statute to have regard to treaty obligations.[163] The Court has also considered judgments applying European treaty-based human rights law when considering human rights issues.[164]
The most significant Australian development is, however, the "legitimate influence principle"[165] first articulated in the High Court in Mabo [No 2] by Brennan J:
The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.[166]
Brennan J did not discuss the difference between treaty and custom. As no authority was cited for this proposition the incorporation/transformation debate was not addressed.[167] Arguably, he implicitly denounced incorporation when he referred to the common law keeping step with international law "in past centuries".[168] A different reading is proffered by Donaghue and this author.[169]
Brennan J in both Mabo [No 2] and Dietrich appeared to hold that the common law should be developed in line with contemporary values, and international law (especially treaties) can provide an expression of such values.[170] In a number of subsequent cases treaty provisions were referred to in argument before the Court. The Court has, though, consistently stressed that treaties have no domestic effect without "incorporation" by statute.[171]
In Dietrich, Brennan J's formulation appeared to find favour with a majority of the court.[172] However, any support from Mason CJ and McHugh J was implicit as their Honours found that "this [legitimate influence approach] nevertheless does not assist ... where we are being asked ... to declare that a right which has hitherto never been recognised [domestically] should now be taken to exist."[173] Similarly (citing Kirby P in Jago[174]) Toohey J said: "[w]here the common law is unclear, an international instrument may be used as a guide to that law. But the applicant's difficulty is that the common law does not recognise the right to counsel".[175] Thus, some members of the Court suggested the principle could only clarify ambiguity in the existing law, not develop new principles of law. It is hard to reconcile this approach with the result in Mabo [No 2], creating the law of native title. However, in Dietrich the alleged right to court-appointed counsel was expressly disavowed by common law.
This demonstrates the controversial role of international law regarding gaps in the common law. Where there is no existing law, can international law be used to formulate a new rule to fill the gap? Justice Kirby has advocated the use of international law to make new rules of common law in such circumstances.[176] However, several other current and former members of the High Court apparently consider this approach unacceptable.[177] In Teoh it was affirmed that the:
provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the [existing] common law.[178]
Justice McHugh (in dissent), however, regarded international law's role as being limited to the "interpretation of a statute or ... the development of the common law" in cases of ambiguity.[179]
The issue is not clarified by Kruger and Bray v The Commonwealth. The plaintiffs did not argue the customary prohibition against genocide had been received into common law, but rather that the Territories power "was not intended to confer power" to make laws inconsistent with the prohibition.[180] Those judges who discussed genocide dismissed the argument, finding that the impugned legislation, even if it could have authorised genocidal acts, could not have authorised their performance with intent to destroy a racial group in whole or part.[181]
This leaves the state of authority with Dietrich and Teoh (above). Thus, it appears that the accepted approach to custom in Australia is the legitimate influence principle of Brennan J.[182]
Other common law jurisdictions apply incorporation: most notably, the United States, Canada and New Zealand. After independence, State courts in the United States continued to apply the English incorporation doctrine.[183] The Supreme Court confirmed this approach when in The Paquete Habana it held: "International law is part of our [domestic] law".[184] This view has been affirmed and given effect in subsequent cases.[185] While it is accepted that custom is incorporated into United States common law, its status in relation to statute law and the limits of Executive power remains controversial.[186] Whether the ability to receive customary crimes is affected by Congress' power to "define and punish Piracies ... and offences against the Law of Nations" appears not to have arisen for judicial consideration.[187]
In Canada the common conclusion is that incorporation prevails.[188] The strongest authorities are found in the acknowledgment of the doctrine by Duff CJ and Rinfret J in the Foreign Legations Case,[189] and in the US Forces Case by Taschereau J.[190] In neither of these cases did the majority refer to the principle. However, subsequent cases have approved the Trendtex approach[191] and in one case it has been presumed that if a rule had been proven to be custom it would have been part of the law of Alberta.[192]
New Zealand courts, it appears, acknowledge that custom has "effect as part of the common law without the need for legislative action."[193] The most recent cases supporting incorporation both indicate that the English approach to sovereign immunity in Trendtex would be followed in New Zealand.[194]
This brief survey illustrates that among common law jurisdictions, Australia appears anomalous in eschewing incorporation.[195]
There is a well-noted lack of jurisprudence on the reception of custom in Australian domestic law.[196] The issue is seldom (both by authors and judges) distinguished from the reception of treaty-based norms.[197] The only cases where custom appears to have been raised squarely for consideration tended to involve discussion of maritime or military law.[198] Ching is one of few Australian authorities where custom was important to the opinions of a majority of the High Court. It is difficult to distil a ratio decidendi from Ching given, in particular, the differing judgments of Latham CJ and Dixon J.[199] Unfortunately, Dixon J's "source" view (based on two dubious essays[200]) appears the most influential.[201]
If Ching represents the state of authority, it has not been applied in the recent line of High Court "treaty cases". These, along with Brennan J's judgment in Mabo [No 2], have established in the "legitimate influence" principle a more cautious view of the role of international law in the development of Australian law. Its application so far has been restricted to cases of ambiguity in statutes or common law.[202] This represents a retreat from the common law's historical position.[203]
The rule was (and still is in many jurisdictions) that the common law will receive international law where it does not contradict express statute law or settled common law.[204] Genocide as an international crime could be more readily received into common law than any other customary principle, simply because it presents one of the strongest examples of a clearly recognised and articulated customary rule. Many objections to its reception are readily overcome. The first is the difficulty of ascertaining the content and the "strength" of the custom.[205] This is not a problem with the crime of genocide: the Convention reflects the customary norm's content. Further, as jus cogens it is among the strongest of international law norms.[206] Secondly, the objection that incorporating a treaty ratified by the Executive but not enacted by the Parliament would violate the separation of powers simply does not apply. The Executive has little capacity to influence the content of custom, or to avoid being bound by it.[207] Further, it is not possible for a state to escape being bound by a jus cogens principle.[208]
The approach taken to custom's reception in Australia is probably best explained by Australia's paranoid approach to federalism and separation of powers doctrines (see Part 6).[209] The High Court has gained political opprobrium for "activist" decisions expanding the Commonwealth's ability to implement treaties through the external affairs power, allowing Parliament to legislate on issues supposedly "reserved" to state legislatures.[210] How much worse to be seen as directly importing international law into domestic law?[211] Further, Australian judges seldom distinguish the considerations applicable to treaty and custom, which are as distinct as statute law and common law.[212] The approach to custom, compared with the role of treaty law, remains stunted and lacking "intellectual rigour".[213]
The principle derived from long authority, as accepted in England, Canada, New Zealand and the United States, is that of incorporation. However, in Australia Merkel J in Nulyarimma (discussed below) provides the only recent judicial articulation of this doctrine.
In Australia the question is not simply one of choice between incorporation and transformation theories. A third possibility may have evolved in the "legitimate influence" principle.[214] This principle, however, if strictly adhered to, may not sustain receiving custom. As Brennan J's influential judgment in Mabo [No 2] was based in part on custom it could arguably catch custom within the ambit of international law which is a mere "legitimate influence" on Australian law. Alternately, Donaghue suggests a reading of this judgment that leaves little discretion to reject the incorporation of custom, given his Honour's declaration that where there is drastic disconformity between the common law and custom, the common law "demands reconsideration".[215] Donaghue proposes that this mandatory language may limit discretion to instances where it is necessary to reject a rule of custom as inconsistent with statute.[216] On this reading, Brennan J's judgment supports incorporation.
Regardless, there is no need to take so potentially restrictive an approach to custom as the legitimate influence principle. Incorporation would not violate the separation of powers (discussed above); it would be courageous only in so far as it would draw attention to the (often controversial) law making role of judges.[217] Ultimately, Australian case law is not inconsistent with qualified incorporation and it remains open to the High Court to find that the crime of genocide could form part of the common law of Australia.[218]
Nulyarimma v Thompson was heard in the Federal Court together with Buzzacott v Hill. The case of the appellants in Nulyarimma was that the government's "Ten Point Plan" on native title and Native Title Amendment Act 1998 (Cth) constituted acts of genocide.[219] Justice Crispin in the Supreme Court of the Australian Capital Territory had rejected the claim that Thompson, Registrar of the Magistrate's Court, should have issued a warrant for the arrest of the Prime Minister, Deputy Prime Minister and two members of Federal Parliament on charges of genocide.[220]
In Buzzacott, commenced in the Federal Court, the plaintiff alleged that the Commonwealth's failure to seek world heritage listing for the Arabunna people's traditional lands constituted genocide.[221] The plaintiff sought damages as well as an injunction to compel the Commonwealth to apply for world heritage listing.[222] The Federal Court dismissed the cases unanimously.[223] Wilcox and Whitlam JJ on the basis that genocide was not an offence at Australian law,[224] Merkel J on the basis that the cases were unsustainable, though he found that the crime of genocide was known to Australian law.[225] It is convenient to deal thematically with common elements of agreement and objections raised to receiving the crime of genocide, before discussing Merkel J's judgment.
All three judges had no difficulty accepting that genocide, as defined by the Genocide Convention, constituted a international crime of universal jurisdiction and was jus cogens.[226] Given the difficulties that often surround proof of the existence of a customary rule and its content this alone is significant.
Justice Wilcox held that policy concerns weighed against incorporation, which he considered would lead to the "curious result that an international obligation incurred pursuant to custom has greater domestic consequences than an obligation incurred, expressly and voluntarily, by Australia signing and ratifying an international convention."[227] This concern is misplaced and fails to appreciate the distinctions between custom and treaty regarding the separation of powers (see Part 3).
Justice Wilcox then asserted that transformation is the correct approach.[228] For this proposition his Honour relied upon Ching and, peculiarly, an article by Mason that simply discusses the transformation/incorporation debate as an open question. [229] As discussed above (at 4.4), Ching cannot be conclusive of any approach to receiving custom.
Justice Whitlam discussed receiving custom principally in the context of the authorities cited by Lord Millet in Pinochet (No 3),[230] including Eichmann.[231] His Honour expressly rejected the view that the Supreme Court of Israel in Eichmann supported incorporation, contending that the Court's judgment "plainly meant" that reception of international law requires legislation.[232] This is incorrect, as Eichmann supports West Rand incorporation (see 5.4). Further, he adverted to an ambiguous passage from Toohey J and a statement by Brennan J in Polyuchovich that, regarding international crimes, "a statutory vesting of the jurisdiction would be essential ... [for] an Australian court".[233] Justice Brennan gave no reasons for this statement and the point was not supported by other judges.
Justice Whitlam also declared: "no-one has identified a rule of customary international law ... that courts in common law countries have jurisdiction in respect of those crimes over which states may exercise universal jurisdiction".[234] This is because such a principle does not exist.[235] International law is disinterested in the method of enforcement or reception of international law in any jurisdiction: while there is a duty on each state to implement international obligations, the method of fulfilling the obligation is left to each jurisdiction.[236] Thus, to assert that international law only "recognises" reception of international crimes by statute, or that international law provides no domestic implementing mechanism, is irrelevant. His Honour should rather have looked to the common law authorities on the reception of international law.[237]
Dismissing as "somewhat academic"[238] the incorporation/transformation debate, Wilcox J suggested that "there is a policy issue in deciding whether to recognise" a customary rule and that in receiving criminal offences the maxim nullum crimen sine lege should apply.[239] This maxim encapsulates the principle that no conduct should attract criminal prosecution where at the time there was no law making that conduct illegal.[240] It embodies the prohibition upon criminal laws of retrospective operation, without express statutory intent.[241] Justice Wilcox concluded, regardless of any general rule of incorporation or transformation, that customary crimes should not be received into Australian law. His Honour conceded that he had little authority for this conclusion, other than a dictum of Brennan J in Polyuchovich, which he acknowledged "was made in a somewhat different context."[242] Unhelpfully, he attempted to combine this dictum with a similar passage by Brownlie, and the fact that incorporation was not raised in argument by counsel in Pinochet (No 3) to conclude that incorporation is not applicable at common law.[243] This is extraordinary reasoning. Justice Brennan's dictum does not discuss the reception of custom.[244] Brownlie's passage merely states that the means by which domestic courts exercise jurisdiction is a question for domestic law: this obviously does not preclude the incorporation doctrine (which he champions elsewhere in his text[245]) applying to international crimes. The issue of argument in Pinochet [No 3] is discussed below.
Ultimately, Wilcox J's key objection appears to be nullum crimen sine lege. However, this principle's foundation is that no-one should be convicted for conduct they were not aware was criminal at the time. It can hardly be doubted, even on the basis of Justice Wilcox's own remarks, that since at least 1946 it has been widely known that genocide is a crime.[246]
Justice Whitlam raises as a principal objection to receiving the crime of genocide the prospect that its reception would be inconsistent with s 1.1 of the Criminal Code 1995 (Cth) (the Code). The section provides that the only "offences against the laws of the Commonwealth" are statutory, thus abolishing any Commonwealth common law crimes when the provision commenced in 1997.[247]
Justice Merkel deals with this potential inconsistency in two ways.[248] The first is to note that s 1.1 only abolishes Commonwealth common law offences. This does not encompass all common law offences within the Commonwealth, but only offences directed against the Commonwealth itself.[249] It was clearly not aimed at abolishing crimes that might be received from custom.[250] Secondly, there is the principle of statutory construction that Parliament is presumed not to intend to breach international law without express words and where multiple constructions are available, the one according with international law is to be preferred.[251] Here, a narrow reading of "Commonwealth offences" can be taken to give effect to the Commonwealth's treaty obligation to provide for the punishment of genocide.[252]
Another issue is whether the Crimes Acts of the "Code states" would extinguish any received crime of genocide. Discussion of this issue would require a detailed examination of each jurisdiction's legislation, an exercise beyond the scope of this paper. However, Whitlam J took the view that the absurdity that would result if genocide were a crime in some jurisdictions and in others it had been extinguished by statute, was itself an argument to preclude the reception of the crime.[253] This is not the case, it is the logical consequence of federation that common law rules may survive in some states while being abolished in others. Such considerations do not stop the High Court declaring rules of common law applicable to all Australian jurisdictions. This "absurd" result would, if it occurred, certainly be an argument favouring a Commonwealth statutory crime of genocide.
Justice Whitlam raised the issue that following authorities such as Knuller v Director of Public Prosecutions[254] courts no longer have the power to create new common law crimes.[255] Knuller's Case was an appeal from conviction for the common law crime of conspiracy to corrupt public morals.[256] This crime's existence had been clarified in Shaw's Case.[257] However, Knuller held that Shaw's Case had simply affirmed the existence of an established crime, not created a new one.[258] The proposition that the court had any residual power to create new crimes was rejected.[259] Justice Merkel accepted that receiving the crime of genocide would mean a new crime would enter Australian law, inconsistent with this principle.[260] After carefully reviewing the authorities his Honour concluded they: "establish that in municipal law the function of creating new offences rests with Parliament" and that any residual judicial power to do so has lapsed.[261] However, Merkel J then contended that the reception of customary crimes was not considered in these authorities and that the policy reasons for the prohibition do not extend to the reception of international crimes.[262] In receiving proven customary crimes there is no issue of either judicial value judgments or lack of certainty.[263] Further, there is no usurpation of the legislative function as custom need not be received by legislation.[264] These are persuasive arguments, as they go to the purpose of the rule, not merely its unconsidered application.
Justice Merkel gave the most detailed consideration of all three judges to the reception of custom into common law. His Honour regards the transformation doctrine as having a long history and incorporation as having become prevalent only recently.[265] As discussed above, this is incorrect. The original and modern doctrine is incorporation. His Honour also found that Westland [266] and the Re International Tin Council Case[267] make it unclear that Trendtex reinstates incorporation.[268] This conclusion, too, is contrary to general academic opinion[269] as both cases unequivocally support incorporation.[270] Oddly, Merkel J bolstered this conclusion – that the incorporation/transformation debate is unresolved in England – by reference to what was not argued in Pinochet (No 3).[271]
Pinochet (No 1)[272] and Pinochet (No 3)[273] are complex judgments which can only be sketched briefly here.[274] The proceedings arose when international warrants for the arrest of the former Chilean dictator were issued by a Spanish court.[275] Pinochet was to be charged in Spain with extra-territorial offences relating to his time in power in Chile, including murder, genocide, hostage taking and torture.[276] The case raised issue of sovereign immunity and double criminality in extradition law. First, under the principal of double criminality Pinochet could only be extradited on charges which were also subject to extra-territorial (or universal) jurisdiction in England.[277] Second, it had to be determined whether Pinochet was immune from prosecution for acts committed while he was a head of state under the State Immunity Act, 1978 (UK), an issue resolved in Pinochet (No 3) by the majority finding that Chile could not invoke state immunity on his behalf.[278] Their Lordships were able to reach this conclusion by referring to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, concluding that the Convention's creation of universal jurisdiction over the crime was necessarily inconsistent with sovereign immunity.[279] Simply put, as the Convention defined torture as being committed by an official, allowing pleas of sovereign immunity regarding the head of state (a paradigmatic public official) would thwart the Convention's objects.[280]
A key issue was the relevant date at which an offence had also to be a crime in England for the purposes of double criminality: in Pinochet (No 1) it was held to be at the date of the extradition request, in (No 3) it was held to be the date of the offence.[281] This finding in Pinochet (No 3) resulted in the extraditable offences at issue being reduced to torture, the Home Secretary having withdrawn genocide from the extraditable charges.[282] It was found that the international crime of torture was only received by statute in England in 1988.[283] Their Lordships have been criticised for ignoring Trendtex, despite cases subsequently approving it, and the issue of receiving custom.[284] Lord Millett dissented on this point and found torture had been an extraterritorial offence prior to 1988, relying on the incorporation of the customary crime into common law.[285] The case perhaps highlights the judicial preference for interpreting statutes and treaties, rather than attempting to discern the existence of custom.[286]
However, the majority did not really need to consider Trendtex and it is not surprising that counsel did not raise it. The central theme of the Pinochet (No 3) judgments is universal jurisdiction. Spain was seeking Pinochet's extradition for crimes of torture committed in Chile; that is, Spain was seeking to exercise extra-territorial jurisdiction over Pinochet. Under the double criminality principle England could only extradite Pinochet for crimes committed after the date at which torture became an extra-territorial offence in England. While a majority explicitly acknowledged that the prohibition against torture was jus cogens,[287] and a customary crime before the Convention Against Torture entered into force, they considered that universal jurisdiction over torture was first created by the Convention.[288] Thus, in a dualist system the 1988 statutory provisions implementing the Convention provided the earliest possible date at which torture was a crime of universal jurisdiction in England.
Had Chile sought Pinochet's extradition the situation would have been different. Then the relevant inquiry would have been at what date torture within England first became a crime. As three judges expressly acknowledged that custom formed part of the common law,[289] an application of Trendtex might have yielded an earlier date than the statutory prohibition. However, this may still not have provided those seeking Pinochet's extradition with any significant advantage. The 1984 text of the Convention itself would provide the most convenient and persuasive proof of widespread international acceptance of a crime of torture. Pinochet was charged with crimes across the period 1972-1989 in the first warrant and 1988-1992 in the second. Thus, raising an incorporation argument, which if successful might have established the reception of a customary crime in 1984, would only have caught a few years' more of impugned conduct within the grant of extradition. Further there was no need to argue customary reception of the crime of torture before 1988 while it remained open to their Lordships to find that it only needed to be a crime at the date of the extradition request in accordance with Pinochet (No 1).
Ultimately, the "failure" to argue custom in Pinochet (No 3) may only indicate the evidentiary difficulty faced in proving any norm of custom[290] and is readily explained by the need to establish a universal jurisdiction not necessarily provided by the customary prohibition.[291] More helpfully, Merkel J rejected the distinction between receiving custom and customary criminal law as raised by Wilcox J on the basis that both Cheung and Keyn concerned criminal prosecution and custom.[292]
Justice Merkel also referred to Dixon J's ambiguous "source" view, later concluding that this view prevails in Australia.[293] This follows from his Honour's conclusion that Starke J, McTiernan J and Dixon J in Ching supported transformation.[294] The idea that Starke J (as discussed at 4.4) supports transformation can only be sustained on a flawed understanding of the Cheung incorporation principle, quoted by Starke J in Ching. The same objection applies to McTiernan J's brief advertence to Cheung. Moreover, it is doubtful whether McTiernan J expressed any opinion, as for him Ching was decided by the fact that the appellants were not within the class of persons covered by any applicable customary rule.[295] Thus, Merkel J blurs the distinction between incorporation and transformation in the Ching judgments.
Regardless, Merkel J's formulation of "common law adoption"[296] is interesting. He identified six criteria or steps:[297]
(1) The customary rule must have "attained ... general acceptance by ... the community of nations" as "evidenced by international treaties ..., authoritative textbooks, practice and judicial decisions." (The principle of evidence in the Cristina Case[298]);
(2) The courts "must ... consider whether the rule" has been "received into and so become a source of English law" (Ching per Dixon J);
(3) "A rule will be ... received into ... domestic law if ... 'not inconsistent with rules enacted by statutes or finally declared by [the courts]' ". His Honour noted that this should not be construed too strictly as regards inconsistency with common law and should only exclude a rule inconsistent with the general policies of common law;
(4) Except in cases of conflict, rules must be received. Inconsistent rules may only be enacted by legislation. "This approach subordinates ... customary international law to domestic law thereby avoiding a fundamental difficulty of ... incorporation ... which by requiring common law to invariably change to accord with rules of international law, subordinates common law to [custom]". Thus, Merkel J appears to regard any doctrine of incorporation, even that in Trendtex, as re-instating Blackstone's unqualified doctrine of incorporation and having the result that all international law is automatically part of domestic law.[299] This is clearly the wrong view, as discussed at length above (see 4.2). Trendtex only directly "subordinates" to changes in custom common law rules originally received from custom.[300] Such common law rules provide the exception to Merkel J's perfectly correct proposition that where there is inconsistency, the established common law rule prevails. (However, this also means custom will be received where there is no established rule, in sharp contrast to the legitimate influence approach as applied in Dietrich: see 4.5 and 6.) Ultimately, qualified incorporation does "subordinate" custom to common law.
(5) Once received, a rule of custom is to be treated as a true declaration of the common law. Presumably, by this his Honour meant that the rule is acknowledged as historically part of common law, not an "inferior" rule only received at the date of judgment.
(6) However, the reception into domestic law will only be taken to have occurred "as from the date the particular rule ... has been established" by evidence.
Points (1), (3) and (6) encapsulate qualified incorporation. Point (5) may be a necessary elaboration. Point (4) is mistakenly founded on an associating "transformation" with the unqualified Blackstone view (see 4.2).
Difficulty arises in assessing whether this approach represents incorporation or "soft transformation", given point (2). The language of (2) suggests the discretion of transformation, yet after (3) and (4) no discretion remains, other than to hold a rule inconsistent with domestic law. This excoriates "soft transformation" and amounts to qualified incorporation. Ultimately, Merkel J has stated the position of qualified incorporation, as espoused in the Trendtex Case he felt it necessary to reject. Despite these minor flaws, Merkel J has delivered the best modern Australian judgment on the reception of custom.
Justice Merkel then dealt with genocide specifically. He referred to Eichmann, a case concerning the trial of a Nazi war criminal under Israel's Nazi Collaborators (Punishment) Law 1950 for his "crime against the Jewish people", which category was found to include genocide as defined at international law.[301] A reading of Eichmann is possible that accords with the West Rand incorporation principle (4.2.1), indicating that the Supreme Court found genocide would have been punishable under common law. [302] The Supreme Court held:
The principle [of international law] is received into the municipal law and becomes part of that law only after it has acquired general international recognition ... a principle of international law must therefore be established by a sufficiency of proof to justify the conclusion [it should be received] ... [303]
[In the absence of] an International Criminal Court ... international law ... [operates] by authorising ... countries ... 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.[304]
The first passage clearly supports incorporation. The second passage with its reference to direct implementation may be ambiguous if taken alone, but read in light of the first passage also strongly supports incorporation.
Justice Merkel distinguished Polyuchovich and Pinochet (No 3) on the simple basis that no argument was made as to whether reception of universal crimes required legislation.[305] He also discussed Re Piracy Jure Gentium, which as indicated above, shows that English Courts of Admiralty were prepared to prosecute international crimes without statutory jurisdiction.[306]
Justice Merkel further noted that receiving the crime of genocide would be consistent with the common law "continuing to recognise the historical, and increasingly important, role of customary international law ... subject to the legislature's power to abrogate, vary or confirm" any received rules.[307] His Honour concluded, rightly, that "genocide is an a fortiori example of where a rule of international law is to be adopted as part of municipal law"[308] and that "it is difficult to see why a court should turn its back on over 300 years of acceptance of the law of nations forming a part of the common law", a comment sounding strangely like incorporation given his rejection of Trendtex.[309]
Thus, his Honour was able to conclude that genocide is a common law crime. However, this result is qualified. The crime, in Merkel J's view, cannot be received in so far as it might curtail the Parliamentary Privileges Act 1987 (Cth).[310] The Act ensures that "members of parliament, in speaking to and voting on a bill, cannot commit a crime".[311] In his view, this defeated the applicants' attempts to have indicted for genocide politicians who formulated the "Ten Point Plan".
The Federal Court's approach, though not conclusive, is not encouraging. It displays all Erades' fears of common lawyers faced with international law: the judgments are largely dismissive, or ill-informed. The exception is Merkel J's judgment, but even he seems not to appreciate the historical development of incorporation. The case is all the more unfortunate for having been followed. Subsequently, Nulyarimma has been cited as conclusive authority for the proposition that genocide is not a crime at common law in other cases brought by aboriginal activists.[312] It appears that the decision in Nulyarimma prevents reconsideration of the status of genocide at common law, and possibly the applicability of incorporation in Australia, in any forum other than the High Court. The decision has, however, spurred the Parliamentary consideration of a statutory crime.[313]
Australian political and legal discourse is deeply informed by the structures of federalism. A complete examination of the complex inter-relationship between Australian federal politics, international organisations, human rights discourse and judicial attitudes towards international human rights is beyond the scope of this paper. However, certain features of Australian political and juridical culture warrant discussion. "Political culture" is a term describing "the set of shared ideas, assumptions, preferences and customs that are usually taken for granted in a political system and are essential to its operation"; it forms the "collective unconscious" of public life.[314] In Australia this culture, as informed by federalism and legalism, is "wary of the discourse of rights."[315] This intense federalist and legalistic hostility towards international law can be characterised as "paranoid federalism".
In Australia, as in other common law jurisdictions, judges tend to be cautious in using international law because of its supposedly political character.[316] Further, as Australian legalism creates a false dichotomy between law and politics[317] there is an entrenched resistance to the use of international law in domestic courts.[318] The High Court remains wary of being seen to give direct effect to unincorporated treaties, finding it doctrinally preferable to develop the common law, even if much the same result is reached. Thus, in Dietrich,[319] the right of an indigent accused to counsel as expressed in the International Covenant on Civil and Political Rights 1966 (ICCPR) was not used even as an interpretative device by the majority.
As noted above (at 4.5) Mason CJ and McHugh J along with Toohey J found that while it was "common sense" to use international law as a guide to resolving ambiguities in the common law, such an approach could not be taken to silences or lacunae in the common law.[320] Dawson J appeared to agreed that at best the use of international law was limited to resolving ambiguities in common law and in statutory interpretation.[321] Justice Brennan felt that the common law could be developed in line with contemporary values, and that the ICCPR, which Australia had ratified, provided a "concrete indication of such values".[322] Justice Deane appeared to take a similar approach.[323] Justice Gaudron considered the widespread acceptance by states of obligations similar to that in the ICCPR provided one reason, among a range of factors, for reconsidering a prior ruling of the court and changing the common law.[324]
Ultimately, the majority held that, as part of the common law principle of a fair trial, courts have the inherent power to stay potentially unfair criminal trials: which would be the case in almost any trial involving an unrepresented indigent defendant facing serious charges.[325] This ruling has pressured State governments to allocate resources towards criminal legal aid to avoid certain indigent persons escaping prosecution,[326] effectively providing for the ICCPR right. (Mason CJ and McHugh J did note the similarity between their formulation and those arrived at in European cases implementing treaty provisions worded similarly to the ICCPR provision.[327])
Added to this judicial wariness is the attitude taken in Australian public life towards human rights. Human rights are seen as a field reserved to the legislature.[328] This results from a long-held tenet of Australian political culture that responsible government safeguards individual liberties, and any attempt to declare human rights other than by legislation is seen as affronting "parliamentary sovereignty".[329] This is complicated by Australia's federal system in which the Commonwealth Parliament holds a limited body of concurrent powers, and State Parliaments have the "residue" as their jurisdiction.[330] With few exceptions, it appears that the Constitution left human rights issues with the States,[331] and the Commonwealth has only in recent history used its external affairs power to implement international human rights standards.[332] Thus, international human rights are seen to threaten Australian sovereignty at two levels. Any Commonwealth human rights legislation supposedly encroaches on "States' rights" or distorts the "federal balance".[333] Further, federal politicians often respond with the indignant rhetoric of sovereignty to any adverse comment on human rights issue by United Nations or treaty bodies.[334]
Federalist concerns and the discourse of intrusions upon sovereignty by international law have arguably resulted in "Australian courts [demonstrating] ... a preoccupation with form [over substance], connected with a desire not to be seen as violating sovereignty in any of its guises."[335] In this context, the "High Court's use of ... rights [language] tends to be wary and limited."[336]
The caution of Australian courts is best explained by such policy concerns. In Teoh, Mason CJ and Deane J advocated a "cautious approach" because although:
Convention[s] may play a part in the development ... of the common law ... the courts should act ... with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.[337]
In Newcrest, Kirby J commented:
Nor should the Court adopt an interpretative principle as a means of introducing, by the backdoor, provisions of ... international law concerning fundamental rights not yet incorporated into Australian domestic law.[338]
These statements encapsulate the "desire not to be seen as violating sovereignty in any of its guises"[339] by importing international law through "the backdoor". Certainly, under parliamentary supremacy, as treaties are ratified only by the Executive they should require parliamentary assent before becoming domestic law. However, the concerns leading to an abundance of caution regarding treaties appear to have become applicable to international law as a whole.
In the case of incorporating custom this cautious approach simply is not justified by the doctrines of separation of powers or parliamentary supremacy (see Part 3). Judicial reception of custom, however, would undoubtedly be politically controversial, given the response to judge-made law in Mabo [No 2].[340] This is, however, insufficient justification for not receiving custom, the importance of which has been acknowledged especially when it declares the existence of fundamental rights.[341]
While Australia lacks an offence of genocide, we are unable not only to prosecute perpetrators domestically, but are also possibly unable to meet the obligation to extradite them to face trail elsewhere.[342] Under the Extradition Act 1988 (Cth), a person can only be extradited for conduct which would have been an offence in Australia.[343] This puts us in an unenviable position regarding existing international criminal tribunals, the International Criminal Court once established, and any trials for crimes against humanity in East Timor. There is already evidence that at least one member of the East Timorese militia (groups implicated in possible genocide) "had come to Australia and sought to remain ... under a false pretext."[344] This result is incompatible with Australia's international leadership on intervention in East Timor in response to human rights atrocities.[345]
Australia's international obligations to provide for the punishment of genocide[346] could be met if genocide were a common law crime, incorporated from custom. This paper has reviewed the strength and status of the prohibition against genocide at international law.[347] It readily meets the requirements for incorporation under the jurisprudence developed in England[348] and other jurisdictions.[349] To require the crime's reception by statute shows misplaced concerns about the separations of powers and parliamentary supremacy, or simply "paranoid federalism".[350] Most jurisdictions other than Australia acknowledge the difference between custom and treaty and that different considerations apply in receiving each.[351]
Finally, it is morally repugnant to suggest that genocide is not a crime in Australia. Indeed, we can discern the spark of legal conscience that would justify the reception of genocide as a crime within Brennan J's words:
If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today's world that the common law should neither be nor seen to be frozen in an age of racial discrimination ... especially when international law declares the existence of fundamental human rights.[352]
[*] BA(Hons) LLB(Hons) (ANU); Solicitor, Mallesons Stephen Jaques, Sydney.
[1] Cth Parl Deb 1949, Vol 203 at 1873 per Dr Evatt.
[2] ATS 1951 No. 2.
[3] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [20] and [81]; M Flynn, "Genocide: it's a Crime Everywhere, but not in Australia" [2000] UWALawRw 4; (2000) 29 UWALR 59 at 63.
[4] Anti-Genocide Bill 1999 (Cth): introduced into the Senate and second reading adjourned 13 October 1999; Bill and related matters referred to Senate Legal and Constitutional References Committee, report tabled 14 August 2000.
[5] Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 ICJ Rep 15 at 23.
[6] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (Teoh) [1995] HCA 20; (1995) 183 CLR 273 at 286-7 per Mason CJ and Deane J, at 298 per Toohey J, at 315 per McHugh J; Kruger and Bray v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 71 per Dawson J, at 87 per Toohey J; and note Parlement Belge (1879) 4 PD 129; (1880) 5 PD 197.
[7] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 203-4 per Gibbs CJ; A Mason, "International law as a source of domestic law" in B R Opeskin and D R Rothwell (eds), International Law and Australian Federalism (1997) 210 at 213 and 220; cf L Erades, Interaction between International and Municipal Law: a Comparative Case Law Study (1993) at 859.
[8] I Brownlie, Principles of Public International Law (5th ed 1998) at 42; M N Shaw, International Law (4th ed 1997) at 105-110; D J Harris, Cases And Materials On International Law (5th ed 1998) at 74-83; D W Greig, International Law (2nd ed 1976) at 57; F A Mann, Foreign Affairs in English Courts (1986) at 121; L Erades, above n 7 at 665, 883-4; the phrasing is adopted from: Mabo v Queensland [No 2] (1992) 175 CLR 1 at 43 per Brennan J.
[9] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [54] per Whitlam J.
[10] Ibid at [53] per Whitlam J.
[11] Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68 per Latham CJ, at 74 per Rich J, at 77 per Dixon J, at 79 per McTiernan J, and at 81 per Williams J; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 306 per Mason CJ and McHugh J; Kruger and Bray v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 71 per Dawson J, and at 87-8 per Toohey J; Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287-8 per Mason CJ and Deane J, and at 315 per McHugh J (only in the case of actual ambiguity).
[12] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [163]-[165] per Merkel J; see also 5.3.3, below.
[13] See 5.3.4, below.
[14] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621.
[15] Brownlie above n 8; Statute of the International Court of Justice, ATS 1945 No. 1, Article 38(1).
[16] Ibid at 4-11; Shaw above n 8 at 58-59 and 67.
[17] Shaw above n 8 at 59-61; Brownlie above n 8 at 5-7.
[18] Ibid at 58 and 68-70; Brownlie above n 8 at 5-11.
[19] Ibid at 65; cf Brownlie above n 8 at 5; I A Shearer, Starke's International Law (11th ed 1994) at 32-4; for an example of awareness of this in the federal Parliament see: Cth Parl Deb 1949, Vol 203 at 1873 per Dame Enid Lyons.
[20] Brownlie above n 8 at 7; cf H Burmester, "Ascertaining International Human Rights Rules and Standards in Domestic Courts: War Crimes and Other Examples" in P Alston (ed), Towards an Australian Bill of Rights (1994) 311 at 315.
[21] H Charlesworth, "Customary International Law and the Nicaragua Case" [1984] AUYrBkIntLaw 1; (1984-7) 11 Australian Yearbook of International Law 1 at 24; cf Burmester above n 20 at 315.
[22] Ibid at 12; Shaw above n 8 at 75-6.
[23] Ibid; Shaw above n 8 at 75.
[24] M Dixon and R McCorquodale, Cases and Materials on International Law (3rd edn 2000) at 44; Shaw above n 8 at 96; cf R Jennings and A Watts (eds) Oppenheim's International Law Volume I Peace: Indtroduction and Part I (9th edn 1992) at 26; though note contra Brownlie above n 8 at 4.
[25] Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 ICJ Rep 15 at 23; T Meron, Human Rights and Humanitarian Norms as Custom (1989) at 11; A Cassese, Human Rights in a Changing World (1990) at 78.
[26] Brownlie above n 8 at 517; H Steiner and P Alston, International Human Rights in Context: Law Politics Morals (1996) at 133 and 145-7; L Hannikainen, Peremptory Norms (Jus Cogens) in International Law: Historical Development Criteria Present Status (1988) at 456ff; L Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation (1997) at 115, 117 and 246; Meron above n 25 at 11 fn 17; P Mathew, "International Law and the protection of Human Rights in Australia" [1995] SydLawRw 15; (1995) 17 SydLR 177 at 179 and fn 9; Shearer above n 19 at 49; D J Harris above n 8 at 836-7.
[27] Brownlie above n 8 at 515-6; Shaw above n 8 at 97-98; I Detter, The International Legal Order (1994) at 174; Vienna Convention on the Law of Treaties 1969, ATS 1974 No. 2, Articles 53 and 64.
[28] General Assembly Resolution 96 (1), 11 December 1946; noted in the preamble to the Convention on the Prevention and Punishment of Genocide 1948, ATS 1951 No. 2; see Attorney General of Israel v Eichmann (1962) 36 ILR 277 at 296-7; cf approach of the International Court of Justice in Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United states of America) (Merits) (1986) ICJ Rep 14 at paras 193, 202, 203 and 205.
[29] Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 ICJ Rep 15 at 23.
[30] Barcelona Traction Light and Power Co Ltd Case (Second Phase) 1970 ICJ Rep 3 at 32; Military and Paramilitary Activities in and against Nicaragua Case 1986 ICJ Rep 3 at 134-7.
[31] Ibid.
[32] Meron above n 25 at 191-5; Cassese above n 25 at 78.
[33] Ibid at 194; A Mitchell, "Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson" [2000] MelbULawRw 2; (2000) 24 MULR 15 at 20.
[34] Brownlie above n 8 at 515; Shaw above n 8 at 96; cf Sunga above n 26 at 115; Cassese above n 25 at 79; Meron above n 25 at 194.
[35] Ibid at 517; Steiner and Alston above n 26 145-7; Hannikainen above n 26 at 456ff; L Sunga above n 26 at 115, 117 and 246; Meron above n 25 at 11 fn 17; Mathew above n 26 at 179 and fn 9; Shearer above n 19 at 49; Harris above n 26 at 836-7.
[36] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [18] per Wilcox J. On some of the difficulties in proposing that genocide was a crime except where connected with a war crime before 1946 see: Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 at 587 per Brennan J and 676 per Toohey J.
[37] Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 ICJ Rep 15 at 23.
[38] Convention on the Prevention and Punishment of Genocide 1948, ATS 1951 No. 2; note the acceptance of this proposition domestically: Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [18] per Wilcox J, [36] and [57] per Whitlam J and at [78] and [140]-[141] per Merkel J.
[39] ICTR: Prosecutor v Ayesku 37 ILM 1399 (1998) at 1406.
[40] Cassese above n 25 at 76; ICTR: Prosecutor v Ayesku 37 ILM 1399 (1998) at 1406-7.
[41] Brownlie above n 8 at 14.
[42] Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) (1986) ICJ Rep 14.
[43] Charlesworth above n 21 at 18; Ibid at paras 193, 202, 203, 204 and 205.
[44] Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits) (1986) ICJ Rep 14 at para 189.
[45] Charlesworth above n 21 at 24; Burmester above n 20 at 315.
[46] Ibid at 24 and 26-8.
[47] Ibid at 10, 22 and 28.
[48] United Nations Security Council Resolution 955 Establishing the International Tribunal for Rwanda November 8 1994, 33 ILM 1598 (1994), Article 2 (at 1602) and note Article 6 (at 1604-5); United Nations Security Council Resolution 827 on Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, 25 May 1993, 32 ILM 1203 (1993) adopting United Nations Secretary-General's Report on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, 32 ILM 1159 (1993), Article 4 (at 1193) and Article 7 (at 1194).
[49] Rome Statute of the International Criminal Court, 37 ILM 999 (1998), Article 6 (at 1004), note also Article 25(3)(e) (at 1016) and Article 5(1)(a) (at 1003); not yet in force.
[50] The United Nations, Department of Public Information, Setting the Record Straight: The International Criminal Court, http://www.un.org/News/facts/iccfact.htm.
[51] Hannikainen above n 26 at 460-2; Meron above n 32 at 11; Steiner and Alston above n 26 at 1049-50.
[52] Convention on the Prevention and Punishment of Genocide 1948, ATS 1951 No. 2, Article 6.
[53] Steiner and Alston above n 26 at 99-100 and 1024-5, quoting Restatement (Third) Foreign Relations Law of the United States s 404; M Wenig, "Enforcing the Lessons of History: Israel Judges the Holocaust" in T McCormick and G Simpson (eds), The Law of War Crimes: National and International Approaches (1997) 103 at 107; L Beres, "Genocide and Genocide-Like Crimes" in M Bassiouni (ed), International Criminal Law: Volume I Crimes (1986) 271 at 274-6; M Bassiouni, "Introduction to the Genocide Convention" in M Bassiouni (ed), International Criminal Law: Volume I Crimes (1986) 281 at 286; Shaw above n 8 at 472 but cf at 473; cf Brownlie above n 8 at 46-7; note also discussion in Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 at 562-76 per Brennan J and 661-3 per Toohey J.
[54] Anti-Genocide Bill 1999 (Cth): introduced into the Senate and second reading adjourned 13 October 1999; Bill and related matters referred to Senate Legal and Constitutional References Committee, report tabled 14 August 2000.
[55] The origins of the policy of prior enactment of implementing legislation can be seen in: D Williams, "Australia's Treaty-Making Procedures: The Coalition's Reform Proposals" in P Alston and M Chiam (eds), Treaty-Making and Australia: Globalisation versus Sovereignty? (1995) 185 at 194.
[56] Sen Deb 1974, Vol 61 at 965 per Senator Willesee.
[57] Mitchell above n 33 at 22; A Mitchell, H Charlesworth, R McCorquodale and P Mathew, Senate Legal and Constitutional References Committee: inquiry into Anti-Genocide Bill 1999 Submission no. 26, 18.2.2000, at 7-8 referring to Memorandum for the Secretary, Department of External Affairs from G A Watson, Acting Secretary, Attorney General's Department, Canberra, Ref 47/740, 6 April 1949.
[58] Parliament of the Commonwealth of Australia, Joint Committee on Foreign Affairs, Defence and Trade, A Review of Australia's Efforts to Promote and Protect Human Rights (1992) at 32; Parliament of the Commonwealth of Australia, Joint Committee on Foreign Affairs, Defence and Trade, A Review of Australia's Efforts to Promote and Protect Human Rights (1994) at 26; Senate Legal and Constitutional Committee, Humanity Diminished: The Crime of Genocide (2000) at [3.46].
[59] Brownlie above n 8 at 515-6; Shaw above n 8 at 97-98; Detter above n 27 at 174; Vienna Convention on the Law of Treaties 1969, ATS 1974 No. 2, Articles 53 and 64.
[60] Erades above n 7 at 665.
[61] K Walker, "Treaties and the Internationalisation of Australian Law" in C Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 204 at 231; Shaw above n 8 at 106ff.
[62] Blackstone, Commentaries on the Laws of England (reprinted 1982), Book 4, at 67.
[63] The logical circularity of the last category is noted in: Mitchell above n 33 at 27.
[64] Ibid at 26-7; or "weak incorporation" per Walker above n 61 at 231.
[65] On the doctrines as expressions of the monism and dualism theories of the relation between international and domestic law, see: Mitchell above n 33 at 26; I A Shearer, "The relation between international law and domestic law" in B R Opeskin and D R Rothwell (eds), International Law and Australian Federalism (1997) 34 at 36; Shaw above n 8 at 105.
[66] Brownlie above n 8 at 46-7; Teoh [1995] HCA 20; (1995) 183 CLR 273 at 298 per Toohey J.
[67] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J; Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286-7 per Mason CJ and Deane J, at 298 per Toohey J and at 315 per McHugh J; Kruger and Bray v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 71 per Dawson J and at 87 per Toohey J; and note Parlement Belge (1879) 4 PD 129; (1880) 5 PD 197.
[68] S Donaghue "Balancing Sovereignty and International Law: the Domestic Impact of International Law in Australia" [1995] AdelLawRw 6; (1995) 17 Adel LR 213 at 224-6 and 261; M Kirby, "The Australian use of international human rights norms: From Bangalore to Balliol – a view from the antipodes" [1993] UNSWLawJl 15; (1993) 16 UNSWLJ 363 at 369.
[69] Ibid; and note G Winterton "Limits to the Use of the 'Treaty Power'" in P Alston and M Chiam (eds), Treaty-Making and Australia: Globalisation versus Sovereignty? (1995) 29 at 34.
[70] Donaghue above n 68 at 261; Charlesworth above n 21 at 3-4; Brownlie above n 8 at 10; cf Jennings and Watts above n 24 at 29.
[71] Donaghue above n 68 at 261.
[72] Shaw above n 8 at 96; Dixon and McCorquodale above n 24 at 44; cf Jennings and Watts above n 24 at 26; though note Brownlie above n 8 at 4.
[73] Donaghue above n 68 at 261.
[74] Note Merkel J's conclusion as to the relation between jus cogens and statutory immunities conferred on members of Parliament: Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [193], cf [181].
[75] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J; Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286-7 per Mason CJ and Deane J, at 298 per Toohey J and at 315 per McHugh J; Kruger and Bray v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 71 per Dawson J and at 87 per Toohey J.
[76] Donaghue above n 68 at 214; Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529 at 569 per Stephenson LJ; Mann above n 8 at 124; G Triggs, "Customary international law and Australian law" in M Ellinghaus, A Bradbrook and A Duggan, The Emergence of Australian Law (1989) at 384.
[77] J Crawford and W Edeson, "International Law and Australian Law" in K Ryan (ed) International Law and Australian Law (2nd end 1985) 71 at 73.
[78] Ibid; Shearer above n 65 at 42; Mitchell above n 33 at 27; Triggs above n 76 at 382-3; Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529 at 567 per Stephenson LJ.
[79] Erades above n 7 at 858.
[80] Ibid at 859.
[81] Shaw above n 8 at 108 (emphasis added).
[82] Note: Brownlie above n 8 at 44; Triggs above n 76 at 384-5; Dixon and McCorquodale above n 24 at 121.
[83] Brownlie above n 8 at 41; Mann above n 8 at 125-8; Burmester above n 20 at 312-3.
[84] Burmester above n 20 at 312-5.
[85] Ibid at 315.
[86] Ibid at 316-7.
[87] Ibid at 314; cf International Tin Council Case [1990] 2 AC 418 at 513 per Lord Oliver.
[88] Shaw above n 8 at 108; Dixon and McCorquodale above n 24 at 121; cf Burmester above n 20 at 314-5.
[89] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J; Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286-7 per Mason CJ and Deane J, at 298 per Toohey J and at 315 per McHugh J; Kruger and Bray v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 71 per Dawson J and at 87 per Toohey J; and note Parlement Belge (1879) 4 PD 129; (1880) 5 PD 197.
[90] Donaghue above n 68 at 261.
[91] Chow Hung Ching v The King [1948] HCA 37; (1949) 77 CLR 449 at 477; Kirby above n 68 at 368; Donaghue above n 68 at 264-5; M Allars, "International law and administrative discretion" in B R Opeskin and D R Rothwell (eds), International Law and Australian Federalism (1997) 232 at 238; Shearer above n at 40 fn 25 and 49-50; Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [131] per Merkel J; Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426; at [426]-[427] per Merkel J.
[92] Crawford and Edeson above n 77 at 73.
[94] Ibid at 216; Triggs above n 76 at 384.
[95] Brownlie above n 8 at 42; Shaw above n 8 at 105-110; Harris above n 8 at 74-83; Greig above n 8 at 57; Mann above n 76 at 121; Erades above n 7 at 665 and 883-4.
[96] [1764] EngR 44; (1764) 3 Burr. 1478 at 1481 per Mansfield CJ citing the dicta of Talbot LC in Barbuit's Case [1715] EngR 43; (1737) Forr. 280, 25 ER 77.
[97] Blackstone above n 62 at 67.
[98] Shaw above n 8 at 108; Dixon and McCorquodale above n 24 at 121; cf Burmester above n 20 at 314-5.
[99] West Rand Central Gold Mining Company Limited v The King [1905] 2 KB 391.
[100] Ibid at 407.
[101] Ibid at 404-406.
[102] Ibid at 408.
[103] Chung Chi Cheung v The King [1938] UKPC 75; [1939] AC 160.
[104] In contrast to the Courts of Admiralty, which historically applied international law directly without creating new rules of domestic law: Erades above n 7 at 664.
[105] Chung Chi Cheung v The King [1938] UKPC 75; [1939] AC 160 at 167-168 (emphasis added).
[106] Brownlie above n 8 at 42; and note: Shaw above n 8 at 105-110; Harris above n 8 at 74-83; Greig above n 8 at 57; Mann above n 76 at 121; Erades above n 7 at 665 and 883-4.
[107] Crawford and Edeson above n 77 at 73.
[108] In Re Piracy Jure Gentium [1934] AC 586; cf the advertence to universal jurisdiction in Companhia de Mocambique v British South Africa Co (1892) 2 QB 358 at 395 per Lord Esher MR.
[109] Ibid.
[110] Ibid at 589.
[111] Ibid at 589 and cf 595.
[112] Ibid at 594.
[113] Note: ibid at 593.
[114] Ibid at 593 and 597.
[115] Shearer above n 65 at 40.
[116] Brownlie above n 8 at 43; Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529 at 553-4 per Lord Denning MR; Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [83], [88], [89] and [99] per Merkel J.
[117] Brownlie above n 8 at 44; Shaw above n 8 at 106-7; Greig above n 8 at 57.
[119] R v Secretary of state for the Home Department Ex parte Thakar [1964] QB 684 at 701.
[120] Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529 at 554.
[121] Ibid at 557-8.
[122] Ibid at 558.
[123] Ibid at 570-2.
[124] Mann above n 76 at 124-5.
[125] J Spigelmen, "Rule of Law – Human Rights Protection" (1999) 18 Aust Bar Rev 29 at 30-31, and passim on the impact of English law's reception of the European Convention on Human Rights 1950; cf R Buxton, "The Human Rights Act and Private Law" (2000) 116 LQR 48; on the impact upon common law, see for example: A Lester, "The Impact of Europe on the English Constitution" (1992) 3 PLR 228 at 237-41.
[126] Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42 per Brennan J.
[127] J Kidd, "Can International Law Protect Our Civil Rights? The Australian and English Experience Compared" (1995) UQLJ 305 at 314.
[128] Lester above n 125 at 231ff; cf on the influence of international decisions and standards: R Nicholson, "A Profound Change to United Kingdom Law: Domestic Application of the European Convention on Human Rights" (1998) 72 ALJ 946 at 954; M Kirby, "The Role of International Standards in Australian Courts" in P Alston, and M Chiam (eds), Treaty-Making and Australia: Globalisation versus Sovereignty? (1995) 81 at 86.
[129] J Perry, "At the intersection – Australian and international law" (1997) 71 ALJ 841 at 841; Mason above n 7 at 210; on human rights in particular note: M Kirby, "Implications of the Internationalisation of Human Rights Law" in P Alston (ed), Towards an Australian Bill of Rights (1994) 276 at 297-8; M Duffy, "The Internationalisation of Human Rights" in P Alston (ed), Towards an Australian Bill of Rights (1994) 299 at 299-301; M Kirby above n 128 at 86; J Crawford, "International Law and Australian Federalism: Past, Present and Future" in B R Opeskin and D R Rothwell (eds), International Law and Australian Federalism (1997) 330 at 332.
[130] Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529 at 557-8 per Lord Denning MR and at 570-1 per Stephenson J.
[133] Brownlie above n 8 at 42; Shaw above n 8 at 105-110; Erades above n 7 at 665 and 883-4; Mann above n 8 at 121.
[134] [1948] HCA 37; (1949) 77 CLR 449.
[135] Ibid at 487-8 per McTiernan J and at 488-9 per Williams J.
[136] Ibid at 471; and note the discussion at 4.2.2.
[137] Ibid at 462 (footnotes omitted).
[138] Ibid at 462-5; on these authorities see: Shaw above n 8 at 107-8; though note A Mason, "Influence of International and Transnational Law on Australian Municipal Law" (1996) 7 PLR 20 at 24.
[139] Chow Hung Ching v The King [1948] HCA 37; (1949) 77 CLR 449 at 477.
[140] LJ Brierly, "International Law in England" (1935) 51 LQR 24.
[141] Ibid at 31.
[142] Chow Hung Ching v The King [1948] HCA 37; (1949) 77 CLR 449 at 462, quoting Sir William Holdsworth "Relation of English Law to International Law" Essays in Law and History, at 267.
[143] Donaghue above n 68 at 265.
[144] Mason above n 138 at 24.
[145] Donaghue above n 68 at 265; Crawford and Edeson above n 77 at 73.
[146] Brownlie above n 8 at 44; Shaw above n 8 at 106-7; Greig above n 8 at 57; see also: Donaghue above n 68 at 264 and fn 234.
[147] Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 72 per Latham CJ.
[148] Ibid at 80-1.
[149] Ibid at 81.
[150] Mabo v Queensland [No 2] (1992) 175 CLR 1.
[151] [1975] HCA 58; (1975) 135 CLR 337.
[152] Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337 at 407.
[153] Ibid at 465-6.
[154] Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529.
[155] Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337 at 496.
[156] Ibid at 500-1.
[157] [1977] HCA 36; (1977) 138 CLR 346 at 394-5.
[158] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 203-4 per Gibbs CJ.
[159] Mason above n 7 at 213 and 220; the point was not even raised directly in the Kruger Case: Kruger and Bray v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 88 per Toohey J.
[160] Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68 per Latham CJ, at 74 per Rich J, at 77 per Dixon J, at 79 per McTiernan J and at 81 per Williams J; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 306 per Mason CJ and McHugh J; Kruger and Bray v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 71 per Dawson J and at 87-8 per Toohey J; Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287-8 per Mason CJ and Deane J and at 315 per McHugh J.
[161] Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230-1 per Brennan CJ.
[162] Teoh [1995] HCA 20; (1995) 183 CLR 273; this decision has been contentious and the subject of Commonwealth legislative attempts to over-turn it: Donaghue above n 68 at 258; Mathew above n at 203; Crawford above n at 335-6; D Rothwell, "Quasi-Incorporation of International Law in Australia: Broadcasting Standards, Cultural Sovereignty and International Trade" (1999) 27 F L Rev 527 at 529.
[163] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 passim, but note 391-2 per McHugh, Gummow, Kirby and Hayne JJ.
[164] See, for example: Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 140 per Mason CJ, at 154 per Brennan J and at 211 per Gaudron J.
[165] Allars above n 91 at 245.
[166] Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42 per Brennan J.
[167] Mathew above n 26 at 195; Donaghue above n 68 at 265 fn 236.
[168] Mabo v Queensland [No [1904] HCA 32; 2] (1992) CLR 1 at 42.
[169] See 4.7 and 7, below.
[170] Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42 per Brennan J; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 321 per Brennan J; Kirby J had earlier articulated this conception of treaty law as an influence on judicial law making: Jago v District Court of New South Wales (1988) 12 NSWLR 558 at 569 per Kirby P.
[171] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J; Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286-7 per Mason CJ and Deane J, at 298 per Toohey J and at 315 per McHugh J; Kruger and Bray v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 71 per Dawson J and at 87 per Toohey J.
[172] Mathew above n 26 at 196-7; Kirby above n 68 at 369; Allars above n 91 at 238.
[173] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 306 per Mason CJ and McHugh J.
[174] Jago v District Court of New South Wales (1988) 12 NSWLR 558 at 569 per Kirby P.
[175] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 per at 360 per Toohey J.
[176] Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 323 per Kirby P; Jago v District Court of New South Wales (1988) 12 NSWLR 558 at 569 per Kirby P; M Kirby above n 68 at 374; M Kirby, "Implications of the Internationalisation of Human Rights Law" in P Alston (ed), Towards an Australian Bill of Rights (1994), 276 at 288 and 297; and see I A Shearer, "International Legal Notes" (1995) 69 ALJ 404 at 405 quoting Kirby J; A Mason above n 7 at 223 and fn 84.
[177] Teoh [1995] HCA 20; (1995) 183 CLR 273 at 315 per McHugh J; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 306 per Mason CJ and McHugh J, cf Dawson J at 349 and Toohey J at 360.
[178] Teoh [1995] HCA 20; (1995) 183 CLR 273 at 288 per Mason CJ and Deane J, cf 304 per Gaudron J (concurring with Mason CJ and Deane J).
[179] Ibid at 315 per McHugh J.
[180] [1997] HCA 27; (1997) 190 CLR 1 at 70-1 per Dawson J and at 88 per Toohey J.
[181] Ibid, and see also at 159 per Gummow J.
[182] Mathew above n 26 at 196-7; M Kirby above n 68 at 369; Allars above n 91 at 238.
[183] L Henkin, "The Constitution and US Sovereignty: a Century of Chinese Exclusion and its Progeny" (1987) 100 Harv LR 853 at 866; M Glennon, "Raising the Paquete Habana: is Violation of Customary International Law by the Executive Unconstitutional?" (1985) North Western U Law Rev 321 at 345 and 347.
[184] The Paquete Habana [1900] USSC 8; 175 US 677, 700 (1900).
[185] First National City Bank v Banco Para et Comerico Exterior 426 US 611, 623 (1983); Banco Nacional v Sabatino [1964] USSC 48; 376 US 398, 423 (1964); Skirotes v Florida [1941] USSC 120; 313 US 69, 72-73 (1941); Berizzi Bros Co v SS Pesaro [1926] USSC 159; 271 US 562 (1926); cf Filartiga v Pena Irala [1980] USCA2 576; 630 F 2d 876, 887 (2d Cir 1980).
[186] Shaw above n 8 at 114-5; Erades above n 7 at 859; Editorial Comment: "Is the President Above Customary International Law?" (1992) 86 AJIL 757 at 760; Henkin above n 183 at 867 and 874-6; L Henkin, "International Law as Law in the US" (1984) 82 Michigan L Rev 1555 at 1555; Glennon above n 183 passim; M Goldklang, "Back on Board the Paquete Habana: Resolving the Conflicts between Statutes and Customary International Law" (1984) 25 Virg J of Int Law 143 passim but note 144-7.
[187] The Constitution of the United States of America, Article I, section 8.
[188] C Maxwell and A Bayefsky, "The Canadian Charter of Rights and Freedoms and Public International Law" (1983) 61 Canadian Bar Rev 265 at 277-80; D Woloshyn, "To What Extent can Canadian Courts be Expected to Enforce International Human Rights in Civil Litigation?" (1985-6) 50 Sask Law Rev 1 at 8; Erades above n 7 at 577-8 and 862; Shearer above n 65 at 40; Foreign Legations Case [1943] SCR 20 at 208, 214, 230-1 per Duff CJ and 232-3 per Rinfret J.
[189] Reference as to Powers to Levy Rates on Foreign Legations and High-Commissioner' Residences [1943] SCR 208 at 214, 230-1 per Duff CJ and 232 per Rinfret J.
[190] Reference re Exemption of US Forces from Canadian Criminal Law [1943] 4 DLR 11 at 41 per Taschereau J.
[191] Maxwell and Bayefsky above n 188 at 279.
[192] Re Alberta Provincial Employees and The Crown (1980) 120 DLR (3d) 590 at 620-1 per Sinclair CJQB.
[193] S Butler and P Butler, "The Judicial Use of International Human Rights Law in New Zealand" (1999) 29 U of Wellington L Rev 173 at 177.
[194] Marine Steel Ltd v Government of the Marshall Islands [1981] 2 NZLR 1 at 4, 8 and 9 per Barker J; Governor of Pitcairn Island v Sutton [1995] 1 NZLR 426 at 436 per Richardson J.
[195] Shaw above n 8 at 120-1 and at 120 fn 117; Brownlie above n 8 at 42-7 and 49-51.
[196] Mason above n 138 at 24; Donaghue above n 68 at 263; Perry above n 129 at 842; Crawford and Edeson above n 77 at 71; Triggs above n 76 at 377.
[197] Mathew above n 26 at 195; note for example the elisions between treaty and custom evident in Kirby above n 68 at 368-72.
[198] Chow Hung Ching v The King [1948] HCA 37; (1949) 77 CLR 449; Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60; and cf Bosner v La Macchia [1969] HCA 31; (1970) 122 CLR 177.
[199] Mason above n 138 at 24; S Donaghue above n 68 at 264.
[200] Donaghue above n 68 at 264.
[201] Kirby above n 68 at 368; Donaghue above n 68 at 264-5; Allars above n 91 at 238; Shearer above n 65 at 40 fn 25 and 49-50; Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [131] per Merkel J; Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426; at [426] and [457] per Merkel J.
[202] Donaghue above n 68 at 245; Kirby above n 68 at 391; Mathew above n 26 at 197 and 200; S Bouwhuis, "International law by the back door?" (1998) 72 ALJ 794 at 796-7; Perry above n 129 at 848-9.
[203] Donaghue above n 68 at 267.
[204] Brownlie above n 8 at 42; Shaw above n 8 at 105-110; Harris above n 8 at 74-83; Greig above n 8 at 57; Mann above n 76 at 121; Erades above n 7 at 665 and 883-4.
[205] Donaghue above n 68 at 261; cf Teoh [1995] HCA 20; (1995) 183 CLR 273 at 288 per Mason CJ and Deane J.
[206] Nulyarimma v Thompson [1999] FCA 1192 at [18] per Wilcox J; at [36] and [57] per Whitlam J; and at [78] and [140]-[141] per Merkel J; cf Brownlie above n 8 at 517; Steiner and Alston above n 26 at 133 and 145-7; Hannikainen above n 26 at 456ff; Sunga above n 26 at 115, 117 and 246; Meron above n 25 at 11 fn 17; Mathew above n 26 at 179 and fn 9; Shearer above n 19 at 49; Harris above n 26 at 836-7.
[207] Donaghue above n 68 at 261; and see Part 3.
[208] Brownlie above n 8 at 515-6; Shaw above n 8 at 97-98; Detter above n 27 at 174; Vienna Convention on the Law of Treaties 1969, ATS 1974 No. 2, Articles 53 and 64.
[209] Note: Kirby above n 68 at 377; Mathew above n 26 at 181 and 201.
[210] Perry above n 129 at 846-7; Bouwhuis above n 202 at 797.
[211] Mathew above n 26 at 194; Kirby above n 68 at 371-2.
[212] Ibid at 195.
[213] Ibid; cf Donaghue above n 68 at 214.
[214] Allars above n 91 at 245ff.
[215] Donaghue above n 68 at 266.
[216] Ibid.
[218] See: Allars above n 91 at 239.
[219] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621 at 621 (headnote); cf Flynn above n at 63-65; S Peters, "The Genocide Case: Nulyarimma v Thompson" [1999] AILR 233 at 233-4; Mitchell above n 33 at 24.
[220] Ibid.
[221] Ibid.
[222] Ibid.
[223] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [32]-[34] per Wilcox J, [59] per Whitlam J, and [235] per Merkel J; note Peters above n 219 at 242-3.
[224] Nulyarimma v Thompson [1999] FCA 119; (1999) 165 ALR 621; at [32] per Wilcox J, [59] per Whitlam J.
[225] Ibid at [186], [193]-[198], [207], [224] and especially [233] and [234] per Merkel J.
[226] Ibid at [18] per Wilcox J; at [36] and [57] per Whitlam J; and at [78] and [140]–[141] per Merkel J.
[227] Ibid at [20].
[228] Ibid at [23].
[229] Ibid; compare Mason above n 7 at 213.
[230] R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No 3) (Pinochet (No 3)) [1999] UKHL 17; [1999] 2 All ER 97.
[231] Attorney General of Israel v Eichmann (1962) 36 ILR 277.
[232] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [36] - [44].
[233] Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 at 576.
[234] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [52].
[235] Mitchell above n 33 at 33.
[236] Ibid.
[237] Ibid.
[238] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [24].
[239] Ibid at [26].
[240] Ibid.
[241] See for example the discussion in: Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 at 687-90 per Toohey J.
[242] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [27].
[243] Ibid at [18] per Wilcox J.
[244] See: Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 at 556 per Brennan J.
[245] Brownlie above n 8 at 42.
[246] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [26]-[27]; cf Attorney General of Israel v Eichmann (1962) 36 ILR 277 at 282.
[247] Ibid at [54].
[248] Ibid at [163]–[165].
[249] Ibid at [163].
[250] Ibid at [163].
[251] Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68 per Latham CJ, at 74 per Rich J, at 77 per Dixon J, at 79 per McTiernan J and at 81 per Williams J; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 306 per Mason CJ and McHugh J; Kruger and Bray v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 71 per Dawson J and at 87-8 per Toohey J; Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287-8 per Mason CJ and Deane J and at 315 per McHugh J (only in the case of actual ambiguity).
[252] Convention on the Prevention and Punishment of Genocide 1948, ATS 1951 No. 2, Articles 1 and 5.
[253] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [57].
[255] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [53].
[256] Knuller v Director of Public Prosecutions [1973] AC 435 at 436 (headnote).
[257] Shaw v Director of Public Prosecutions [1961] UKHL 1; [1962] AC 220.
[258] Knuller v Director of Public Prosecutions [1973] AC 435 at 457-8 per Lord Reid, 464-5 per Lord Morris, 490 per Lord Simon, and 496 per Lord Kilbrandon.
[259] Ibid.
[260] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [167].
[261] Ibid at [176].
[262] Ibid at [177].
[263] Ibid at [178].
[264] Ibid at [179].
[265] Ibid at [83]; note also at [88], [89] and [99].
[266] Westland Ltd v Arab Organsiation for Industrialisation [1995] 2 QB 282.
[267] International Tin Council Case [1990] 2 AC 418.
[268] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [108].
[269] Brownlie above n 8 at 42; Shaw above n 8 at 105-110; Erades above n 7 at 665 and 883-4; Donaghue above n 68 at 260.
[270] Westland Ltd v Arab Organsiation for Industrialisation [1995] 2 QB 282 at 307-8 and 310; International Tin Council Case [1990] 2 AC 418 at 512 per Lord Oliver.
[271] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [113] and [117].
[272] R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte [1998] UKHL 41; [1998] 3 WLR 1456.
[273] Pinochet (No 3) [1999] UKHL 17; [1999] 2 All ER 97.
[274] H Fox, "The Pinochet Case No. 3", (1999) 48 Int and Comp Law Q 687 at 687.
[275] Pinochet (No 3) [1999] UKHL 17; [1999] 2 All ER 97 at 102-4 per Lord Browne-Wilkinson.
[276] Ibid.
[277] C Warbrick, "Extradition Law Aspects of Pinochet 3" 48 Int and Comp Law Q 958 at 959-960; Fox above n 274 at 687.
[279] Pinochet (No 3) [1999] UKHL 17; [1999] 2 All ER 97 at 114 per Lord Browne-Wilkinson, at 166 per Lord Hutton, at 169 per Lord Saville, at 179 per Lord Millet and at 189-190 per Lord Phillips.
[280] Ibid and at 152 per Lord Hope, when torture is on the scale of a "serious international crime".
[281] Warbrick above n 277 at 960-3; note Pinochet (No 3) [1999] UKHL 17; [1999] 2 All ER 97 at 105-7 per Lord Browne-Wilkinson.
[282] Pinochet (No 3) [1999] UKHL 17; [1999] 2 All ER 97 at 103 per Lord Browne-Wilkinson.
[283] J Hopkins, "Former Head of Foreign State – Extradition – Immunity" (1999) 58 Camb LJ 461 at 461-2; Fox above n 274 at 690 (though Fox first cites the date 1998, this is clearly a misprint); s 134 Criminal Justice Act, 1988 (UK) implementing the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, ATS 1989 No. 21.
[285] Pinochet (No 3) [1999] UKHL 17; [1999] 2 All ER 97 at 175-8.
[286] Burmester above n 20 at 316-7.
[287] Pinochet (No 3) [1999] UKHL 17; [1999] 2 All ER 97 at 108-9 per Lord Browne-Wilkinson, at 152 per Lord Hope, at 164 per Lord Hutton and at 190 per Lord Phillips; cf 178 per Lord Millett.
[288] Ibid at 114 per Lord Browne-Wilkinson, at 121 per Lord Goff, at 164 per Lord Hutton and at 188-9 per Lord Phillips.
[289] Ibid at 155 per Lord Hutton, at 177 per Lord Millet (and note his reference to Re Piracy Jure Gentium at 180) and at 185 per Lord Phillips.
[290] Brownlie above n 8 at 44; Triggs above n 76 at 384-5; Dixon and McCorquodale above n 24 at 121.
[291] Pinochet (No 3) [1999] 2 All ER at 114 per Lord Browne-Wilkinson, at 121 per Lord Goff, at 164 per Lord Hutton and at 188-9 per Lord Phillips.
[292] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [101], though note [133].
[293] Ibid at [126], [129] and [132].
[294] Ibid at [125]-[126] and [132].
[295] Chow Hung Ching v The King [1948] HCA 37; (1949) 77 CLR 449 at 487-8 per McTiernan J.
[296] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [131].
[297] Unless otherwise noted, quotations in (1) to (6) are drawn from: ibid at [132] per Merkel J.
[299] The same analysis appears in: Flynn above n 3 at 63-65.
[300] Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529 at 554; cf Mann above n 76 at 124-5.
[301] Attorney General of Israel v Eichmann (1962) 36 ILR 277 at 288 and 296-7; Bassiouni above n 53 at 285.
[302] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [148]-[150].
[303] Attorney General of Israel v Eichmann (1962) 36 ILR 277 at 280, quoting in part Shimshon Palestine Portland Cement Factory Ltd v The Attorney General (1950) 17 ILR 72 per Dinkleblum J, and also referring to West Rand Central Gold Mining Company Limited v The King [1905] 2 KB 391 and The Cristina [1938] AC 485.
[304] Ibid at 292 (emphasis added).
[305] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [160].
[306] Ibid at [138] – [139].
[307] Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [181].
[308] Ibid at [183].
[309] Ibid at [184].
[310] Ibid at [193].
[311] Ibid.
[312] Sumner v United Kingdom [1999] SASC 456 at [31]- [32] per Nyland J; Sumner v United Kingdom [1999] SASC 462 at [50]; Thorpe v Kennett [1999] VSC 442 at [46] per Warren J; Buzzacott v Gray [1999] FCA 1525 at [31] and [32] per Von Doussa J; Buzzacott v Morgan (Butterworths Unreported Judgment 1901600); for discussion of some of these cases see: Mitchell above n 33 at 43-4.
[313] Mitchell above n 33 at 44-6; Anti-Genocide Bill 1999 (Cth); see Part 2.
[314] B Galligan, "Australia's Political Culture and Institutional Design" in P Alston (ed), Towards an Australian Bill of Rights (1994), 55 at 58.
[315] H Charlesworth, "The Australian Reluctance About Rights" in P Alston (ed), Towards an Australian Bill of Rights (1994) 21 at 21-2.
[316] Burmester above n 20 at 322-3.
[317] Charlesworth above n 315 at 48.
[318] Ibid at 27.
[319] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
[320] Ibid at 306 per Mason CJ and McHugh J and at 360 per Toohey J.
[321] Ibid at 349.
[322] Ibid at 319-321.
[323] Ibid at 337.
[324] Ibid 373.
[325] Ibid at 311 per Mason CJ and McHugh J, at 337 per Deane J, at 362 per Toohey J and at 374 per Gaudron J; though note Mathew above n 26 at 196.
[326] On the change in legal aid priorities see: S Bronitt, and M Ayers, "Criminal Law and Human Rights" in D Kinley (ed), Human Rights in Australian Law : Principles Practice and Potential (1998) 120 at 122.
[327] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 307.
[328] P Alston, "An Australian Bill of Rights: By Design or Default?" in P Alston (ed), Towards an Australian Bill of Rights (1994) 1 at 13.
[329] Ibid; Charlesworth above n 315 at 23; Galligan above n 314 at 56 and 65-6.
[330] Charlesworth above n 315 at 34.
[331] Ibid.
[332] Ibid at 36-8; Rothwell above n 162 at 527.
[333] Charlesworth above n 315 at 26, 32, 33 and 35; Alston above n 328 at 3-4; Kirby above n 176 at 290; Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999, Bills Digest No. 62 1999-2000, Parliamentary Library, http://www.aph.gov.au/library/pubs/bd/1999-2000/2000bd062.htm, at "Caveats"; Donaghue above n 68 at 260; Crawford above n 129 at 331.
[334] Alston above n 328 at 4 and 16; Crawford above n 129 at 331; cf Downer, Alexander, Minister for Foreign Affairs, "Media Release: Government to Review UN Treaty Committees", 30 March 2000, http://www.dfat.gov.au/media/releases/downer/ fa024_2000.html.
[335] Mathew above n 26 at 195.
[336] Charlesworth above n 315 at 27.
[337] Teoh [1995] HCA 20; (1995) 183 CLR 273 at 288 per Mason CJ and Deane J.
[338] Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 657.
[339] Mathew above n 26 at 195.
[340] Alston above n 328 at 7.
[341] Mabo v Queensland [No 2] (1992) 175 CLR 1 at 41-42 per Brennan J; cf Teoh [1995] HCA 20; (1995) 183 CLR 273 at 288 per Mason CJ and Deane J and 304 per Gaudron J (concurring).
[342] Articles 5, 6 and 7, Convention on the Prevention and Punishment of Genocide 1948, ATS 1951 No. 2; cf Flynn above n 3 at 74-5.
[343] Extradition Act 1988 (Cth), s 19(2)(c); cf Flynn above n 3 at 74 fn 70.
[344] Flynn above n 3 at 74.
[345] Ibid at 78.
[346] Convention on the Prevention and Punishment of Genocide 1948, Articles 5 and 6.
[348] Brownlie above n 8 at 42; Shaw above n 8 at 105-110; Harris above n 8 at 74-83; Greig above n 8 at 57; Mann above n 8 at 121; Erades above n 7 at 665 and 883-4.
[349] See 4.6, above.
[350] As discussed in Parts 2 and 6.
[351] Shearer above n 65 at 38; cf Dixon and McCorquodale above n 24 at 97 and 100.
[352] Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42 per Brennan J.
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