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Published online by Cambridge University Press: 17 January 2008
On 31 May 1999 two matters came before the Full Federal Court of Australia, constituted by Justices Whitlam, Wilcox and Merkel. The two cases heard together were different in nature and origin, but their common feature was a claim of genocide. The primary issue was whether the international crime of genocide forms part of the law of Australia. The majority view was that, before an international crime could be prosecuted in an Australian court, specific domestic legislation needed to be enacted. The dissenting opinion was that genocide had become an offence at common law and could be prosecuted. In this case note I will analyse the opinions both in the terms of their impact on the relationship between international law and domestic law in Australia, and in light of recent trends in Australia and other common law countries.
2. It was agreed by both the appellants and the respondents that although Australia had ratified the Genocide Convention and enacted the Genocide Convention Act 1949 (Cth), neither act had the effect of incorporating the Convention as part of Australia's domestic law. It was also agreed that the crime of genocide as set out in the Convention had reached the status of a peremptory norm of customary international law with universal jurisdiction and that there was a duty to prosecute. Supra n.1, p.81.
3. Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 C.L.R. 273, p.287.Google Scholar
4. Denning, Lord MR in Trendtex Trading Corporation v. Central Bank of Nigeria [1977] 1 QB 529, pp.553–554.Google Scholar
5. Supra n.4.
6. Supra n.1, para.75.
7. Ibid., para.77.
8. Ibid, paras. 17 and 49.
9. (1991) 172 C.L.R. 501 (“Polyukhovich”)Google Scholar. This case concerned the question of whether an amendment to the War Crimes Act was beyond the Commonwealth's legislative power under the Australian Constitution, and in this context Brennan J considered the position concerning the adoption of universal crimes into municipal law, pp.565 and 567.
10. Supra n.1, para.20.
11. Ibid
12. Ibid, para.26.
13. [1999] 2 W.L.R. 827 (“Pinochet”).Google Scholar
14. Supra n.1, para.49.
15. Ibid
16. See Knuller (Publishing, Printing and Promotions) Ltd v. Director of Public Prosecutions [1973] A.C. 435.Google Scholar
17. Supra n.1, paras.53 and 54.
18. Ibid, para. 131.
19. (1949) 77 C.L.R. 449Google Scholar. This case was the last word by the High Court on the relationship between international custom and Australian law, and is generally seen as supporting the transformation doctrine. In his judgment, Dixon J stated that international law was not a part, but a source of municipal law, which Sawer interprets to include “a judicial discretion in the Australian (and English) Courts to ignore international law rules not so far ‘received’ on some ground of their inconsistency with general policies of our law, or lack of logical congruence with its principles”. Sawer quoted by Mason quoted by Merkel J. Supra n.1, para.129.
20. Supra n.1, para.84.
21. Ibid, para. 167.
22. (1962) I.L.R. 277.Google Scholar
23. Supra n.1, para.145.
24. Ibid, para. 163.
25. , Campbell, , Roderick, “Genocide Cases have No Basis, Court says”, The Canberra Times, 2 09 (1999) Part A, p.4.Google Scholar
26. The High Court has not been asked to consider this question for more than 50 years: in Polites v. The Commonwealth (1945) 70 C.L.R. 60Google Scholarthe Court appeared to favour the incorporation approach, however Dixon's judgment four years later in Chow Hung Ching v. R (1949) 77 C.L.R. 449Google Scholar has been interpreted as preferring the transformation approach.
27. See Shearer, I. A., “The Relationship Between International Law and Domestic Law” and Mason, Sir Anthony, “International Law as a Source of Domestic Law” in Opeskin, Brian R. and Rothwell, Donald R., International Law and Australian Federalism (1997) Melbourne University Press.Google Scholar
28. It is noted that some multilateral treaties do crystallise into customary law (as the Genocide Convention has in this case), likewise some customary rules of international law are incorporated into treaties. In both instances they should be treated as customary norms.
29. Article 53 of the Vienna Convention on the Law of Treaties 1969.
30. Shearer suggests that one reason why domestic courts may be reluctant to differentiate custom is the difficulty in ascertaining customary rules of international law: while some are clearly established, others are less so, and municipal tribunals may not be in the best position to determine State practice and opinio juris. Nevertheless, he notes that cases where Australian courts have been faced with this difficulty are hard to find. Supra n.27, p.60.
31. Ibid, p.43.
32. Supra n.1, paras.118–122.
33. Shearer, supra n.27, pp.39–40.
34. There is some uncertainty as to whether the incorporation approach means that customary international law is part of the common law, or whether it is part of domestic law, separate and subordinate to common law and statute law. See Kristen Walker in Mason, Ibid, p.212.
35. Supra n.1, para.84, per Merkel J.
36. Supra n.27, Shearer p.51 and Mason pp.222–223. See also Mabo v. Queensland (No. 2) (1992) 175 C.L.R. 1Google Scholar, Australian Capital Television Pty Ltd v. Commonwealth [No. 2] (1992) 177 C.L.R. 106Google Scholar, Dietrich v. R (1992) 177 C.L.R. 292Google Scholar, Polyukhovich v. Commonwealth (1991) 172 C.L.R. 501Google Scholar and Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 C.L.R. 273.Google Scholar
37. Supra n.3. In this case, the High Court held that Australia's ratification of the Convention on the Rights of the Child raised a legitimate expectation that a decision-maker would take into account the Convention when determining the deportation of a father, despite the fact that the Convention had not been incorporated into municipal law.
38. Mason, supra n.27, p.217.
39. (1998) 153 A.L.R. 490Google Scholar. In this case, the High Court held that the Australian Broadcasting Authority (“ABA”), which operated under the provisions of the Broadcasting Services Act 1992 (Cth) (“Act”), was bound to follow the Australia New Zealand Closer Economic Relations Trade Agreement because the Act required the ABA to perform its functions in a manner consistent with Australia's obligations under any convention.
40. , Rothwell, Donald, R, “Quasi-Incorporation of International Law in Australia: Broadcasting Standards, Cultural Sovereignty and International Trade” (1999) 27 Federal Law Review 527, pp.544–545.Google Scholar
41. Shearer, supra n.27, p.61.
42. Supra n.1, para.26, per Wilcox J.
43. Ibid, para. 179.
44. Ibid, para. 181.