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Burmester, Henry; Reye, Susan --- "The Place of Customary International Law in Australian Law: Unfinished Business" [2000] AUYrBkIntLaw 3; (2000) 21 Australian Year Book of International Law 39

The Place of Customary International Law in Australian Law: Unfinished Business

A comment on Nulyarimma v Thompson; Buzzacott v Hill

Henry Burmester[∗] and Susan Reye[∗∗]


The place of international law in the Australian legal system remains partly unresolved at the end of the first century of Australian nationhood. The place of treaties has been largely settled: there is generally a need for incorporation before they can give rise to enforceable rights and obligations as a matter of domestic law.[1 ] However, the place of customary international law as part of the domestic legal system remains without any definitive answer. Recent consideration of this matter by the Full Federal Court in 1999 has highlighted some of the important issues that it raises. This paper explores some of these issues by reference to that Full Federal Court consideration which occurred in Nulyarimma v Thompson; Buzzacott v Hill.[2] This involved two cases, heard together, both involving claims by members of the Aboriginalcommunity that certain Commonwealth Ministers and members of Parliament had engaged in genocide. The ability to institute criminal proceedings alleging genocide and to bring a civil claim based on the alleged genocide were both directly raised.

Not unexpectedly, Professor Greig has dealt perceptively with the place of international law in domestic legal systems in his International Law treatise.[3] It is a pleasure and appropriate for us, therefore, to write on this issue to honour Professor Greig.

Buzzacott v Hill: the Claim

Surprisingly for a case about customary international law, Buzzacott v Hill arose out of the decision by the Australian government not to seek listing of certain land under the Convention for the Protection of the World Cultural and Natural Heritage, adopted in Paris on 23 November 1972 (World Heritage Convention). That Convention provides for the establishment and maintenance by the World Heritage Committee of a World Heritage List (article 11). Every Party is to submit to the Committee an inventory of property forming part of the cultural and natural heritage situated in its territory. The Committee is to include on the list the properties which it considers as having outstanding universal value. The Parties to the Convention recognise a duty to ensure the identification, protection, conservation, presentation and transmission to future generations of their cultural and natural heritage (article 4). This obligation is not limited to property on the World Heritage List, but inclusion on that list would be evidence that the property concerned is cultural or natural heritage, that the Party has a duty to protect.[4]

In the late 1980s and early 1990s, consideration was given by the Commonwealth government and the state government of South Australia to submitting to the World Heritage Committee the South Australian portion of the Lake Eyre basin. Some studies were carried out. There was consultation with Aboriginal and community groups, pastoralists and the pastoral, mining and tourism industries and in 1994 the Lake Eyre Basin Reference Group was formed. The Reference Group, in its final report in December 1997, was unable to agree on whether the area should be recommended for listing. Further, the South Australian government by that stage opposed World Heritage listing of Lake Eyre. In April 1998, the Commonwealth Minister for the Environment, Senator Hill, announced that, due to a lack of community and state government support, the Commonwealth had decided not to pursue the proposed nomination at this time.[5 ]

In March 1999, a statement of claim was lodged in the Federal Court by Mr Kevin Buzzacott on behalf of the Arabunna People. The claim was brought against the Commonwealth and against the Commonwealth Ministers for the Environment and for Foreign Affairs and Trade. Mr Buzzacott alleged, among other things that:

• in declining to proceed with an application for World Heritage listing of Arabunna lands, the Minister for the Environment caused serious mental harm to the Arabunna people which was reasonably foreseeable;

• in so declining, the Minister deliberately imposed conditions of life upon Arabunna People likely to destroy them in whole or in part, and such destruction was reasonably foreseeable;

• in the circumstances, in so declining, the Minister committed an act of genocide within the settled legal definition;

• the Minister for Foreign Affairs failed to take action to ensure that the Arabunna lands proceeded to World Heritage listing, and failed to take action against the Minister for the Environment for his breaches of international law’;

• accordingly the Minister for Foreign Affairs was complicit in acts of genocide;

• while both Ministers were personally liable, the Commonwealth also bore responsibility under both international and domestic law for civil wrongs committed by them;

• the Commonwealth had failed to enact genocide legislation, and the reasonably foreseeable consequence of this failure had been to cause serious mental harm, with the reasonably foreseeable consequence of the deliberate imposition upon them of conditions of life calculated to destroy them in whole or in part, and accordingly the failure to pass such legislation was itself an act of genocide, which had also permitted subsequent acts of genocide over the past 50 years.

The Applicant sought, among other things:

• a mandatory injunction compelling the Ministers and the Commonwealth to proceed with World Heritage listing of the Arabunna lands;

• an injunction preventing them from authorising, allowing, permitting or otherwise validating any presence or activities upon Arabunna lands by non-Arabunna persons which may in any way affect the World Heritage values of the Arabunna lands; and

• damages.

Mr Buzzacott did not seek criminal sanctions. The Commonwealth sought to have the proceedings struck out. The strike out motion was adjourned to be dealt with by the full Federal Court in conjunction with the appeal in Nulyarimma v Thompson.

Nulyarimma v Thompson: the Claim

Nulyarimma v Thompson related to the enactment of the Native Title Amendment Act 1998 (Cth). In July 1998, a number of indigenous persons, including Ms Nulyarimma and Mr Buzzacott, had laid informations and sought to have warrants issued for the arrest of four persons, Mr John Howard (the Prime Minister), Mr Tim Fischer (the Deputy Prime Minister), Senator Brian Harradine and Ms Pauline Hanson, who was a member of the House of Representatives at the time. The informations charged that they had committed the criminal offence of genocide in connection with the formulation of the Commonwealth government’s native title ‘Ten Point Plan’ and presentation and support of the Bill reflecting that Plan, which as extensively amended, became the Native Title Amendment Act 1998 (Cth). The government claimed that the relevant amendments were enacted to make the process for establishing native title claims more efficient and effective. However, there was a great deal of opposition to them on the basis that they were believed to adversely affect native title rights.

The Registrar of the Australian Capital Territory Magistrates Court, Mr Thompson, refused to issue arrest warrants as he did not accept that an offence of genocide was known to the law of the Australian Capital Territory. The plaintiffs brought an action against the Registrar in the ACT Supreme Court.

Crispin J upheld the Registrar’s refusal, on the basis that ‘no offence of genocide is known to the domestic law of Australia’, and that even if there were such an offence, nothing in the material before him suggested that there was an arguable case supporting the allegations of genocide.[6] An appeal against Crispin J’s judgment was brought in the Federal Court (the Commonwealth was not a party to this action).

The issue in common in the two cases was whether genocide is a crime under Australian law. If the Court decided that it was, it would have to decide whether arrest warrants could be issued as sought by the appellants in Nulyarimma v Thompson, and, for the purposes of the Buzzacott Case, whether genocide was a civil wrong giving rise to a right to damages.

The Legal Background

Genocide in public international law

Genocide is the subject of a treaty: the Convention on the Prevention and Punishment of the Crime of Genocide, approved by the UN General Assembly in Paris on 9 December 1948 (‘the Genocide Convention’). Australia has ratified the Genocide Convention, which entered into force for Australia and generally on 12 January 1951.

It is recognised that there are acts or omissions for which international law imposes criminal responsibility on individuals and for which punishment may be imposed either by international tribunals or by national courts. For instance, the International Criminal Court will have jurisdiction over war crimes, crimes against humanity and genocide.[7]

All parties in Buzzacott v Hill and Nulyarimma v Thompson accepted that genocide is an international crime under customary international law, over which states may exercise universal jurisdiction. That means that every state, under international law, has jurisdiction to punish genocide wherever it is committed and whatever the nationality of the person committing it. They also accepted that the prohibition on genocide is a peremptory norm of international law (jus cogens), from which states may not derogate, and that it gives rise to obligations erga omnes.[8]

All parties also accepted that the international crime of genocide, under customary international law, corresponds to the definition in article 2 of the Genocide Convention. That definition is:

In the present Convention, genocide means 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.

It is clear that in order to satisfy this definition, one or other of the acts listed in article 2 must have been carried out with the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.

Effect of the Genocide Convention in Australian law

Australia’s ratification of the Genocide Convention was approved by Parliament in the Genocide Convention Act 1949, and the text of the Convention is included in a Schedule to that Act. The Act does not, however, give the Convention the force of law in Australia. It was not argued in these cases that the Convention had been incorporated into Australian law by the Act. There is no other Australian legislation dealing expressly with genocide.

In a number of cases, the High Court has held that a rule of international law created by a treaty, and not incorporated into Australian legislation, is not directly enforceable by the Australian courts.[9] This is not to say that such a rule is necessarily of no effect in Australian courts. It can, for example, be taken into account in interpreting legislation;[10] it has been held that ratification of a treaty can give rise to legitimate expectations that the Executive will comply with the treaty;[11] and there is some support for the argument that international standards recognised in treaties can be drawn upon to influence the development of the common law.[12] However, it is not possible for a person to take action against another person, or against the government, relying solely on an alleged breach of an obligation under a treaty.

The principle was explained in Minister for Immigration and Ethnic Affairs v Teoh:[13]

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.

The Arguments

The Applicants in Buzzacott v Hill and Nulyarimma v Thompson accepted in argument that the Genocide Convention, as a treaty, had not become part of domestic law in the absence of legislation. However, they argued that customary international law could, without legislation, become part of Australian law. Essentially, they argued that:

• the prohibition against genocide is a customary norm of international law;

• Australian municipal law incorporates customary norms of international law without the need for legislation;

• the universal crime of genocide, as a customary norm of international law, has been incorporated into the common law of Australia;

• that crime can be tried in any superior court of record in Australia.

As already indicated, the Commonwealth in argument agreed that genocide is an international crime under customary international law, giving rise to universal jurisdiction, and that the prohibition of genocide is a peremptory norm of international law (jus cogens). However, the Commonwealth argued that the universal crime of genocide under customary international law could become part of Australian law only through legislation. In the absence of legislation, no offence of genocide is known in Australian law and as a result no act of genocide can give rise to criminal or civil liability in Australian courts as such. This is not to deny that certain acts of genocide may fall within existing offences, such as murder. But it was contended that there is no separate offence of genocide. It was also submitted that the cases did not, on their facts, raise an arguable claim of genocide in any event.

The Judgment in the Federal Court

The Federal Court delivered its judgment on 1 September 1999. Wilcox and Whitlam JJ held that, although genocide is a crime under customary international law, in the absence of appropriate legislation it is not cognisable in an Australian Court. They considered that the case law sought to be relied upon by the Aboriginal plaintiffs did not support the argument that Australian courts could exercise jurisdiction over international crimes in the absence of legislation.

Wilcox J pointed to the incongruity that would arise from acceptance of the plaintiffs’ arguments:

If this were the position, it would lead to the curious result that an international obligation incurred pursuant to customary law has greater domestic consequences than an obligation incurred, expressly and voluntarily, by Australia signing and ratifying an international convention.[14]

Wilcox J said that if there was a policy issue as to whether courts should recognise and enforce a rule of customary international law, it should be resolved in a criminal case by declining, in the absence of legislation, to enforce the international norm. He referred to ‘the strong presumption nullum crimen sine lege (there is no crime unless expressly created by law)’.[15] He also pointed to serious practical difficulties that would arise if crimes under customary international law were automatically to become crimes under the common law:

In the case of serious criminal conduct, ground rules are needed. Which courts are to have jurisdiction to try the accused person? What procedures will govern the trial? What punishment may be imposed? These matters need to be resolved before a person is put on trial for an offence as horrendous as genocide.[16]

Whitlam J analysed in some detail two cases that were said to support the view that customary law formed part of Australian law. The first was R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3).[17] The second was Attorney-General of Israel v Eichmann.[18] He concluded that neither supported the argument that universal jurisdiction provides, by itself, a source of jurisdiction for municipal courts to try international crimes. Neither, in his view, did they support the assertion that a crime under customary international law became part of the common law.[19] In Australia the exercise of universal jurisdiction is a matter for the Commonwealth, not the states, yet the Commonwealth had by statute abolished common law offences under Commonwealth law.[20] Whitlam J also considered that the claims were prevented from succeeding because the courts are no longer able to create new criminal offences.[21] This would prevent recognition by Australian courts of international crimes as new common law offences.

Wilcox and Whitlam JJ therefore concluded that Mr Thompson was correct in refusing to issue arrest warrants in relation to the passage of the Native Title Amendment Act. In relation to the Buzzacott Case, the underlying assumption in that case appeared to be that, if genocide is a criminal offence known to Australian law, civil remedies are available. Wilcox J considered this assumption to be highly questionable, but in any case the conclusion of the majority, that genocide is not cognisable as a criminal offence, meant that the civil claim could not succeed, and should be struck out.

Merkel J agreed with the dismissal of the appeal in Nulyarimma and with the striking out of the Buzzacott action, but on different grounds. After examining the case law, he formulated an approach according to which a generally accepted rule of customary international law is to be taken to have been adopted into domestic law if it is not inconsistent with either statute or with the rules of common law declared by the courts.[22 ]

Merkel J analysed the debate about ‘incorporation’ and ‘adoption’ (or transformation) of international law into domestic law in some detail.[23] He concluded that the current view of English authorities is that the incorporation approach seems to be the preferred view but it is an open question whether this view will prevail if and when the issue arises in the House of Lords.[24] The Australian authorities he considered adopt a view whereby international law can be a ‘source’ for the common law if certain conditions are met.[25] These require, first, general acceptance of the rule as a rule of international law and second, it will not be a source of domestic law if it is inconsistent with statute or rules of the common law declared by the courts.[26] The issue then was whether different principles apply in relation to international criminal law.

Merkel J concluded that there was no reason why jurisdiction could not vest in a domestic court in relation to crimes of universal jurisdiction. He placed considerable reliance on the Eichmann Case and the judgment of Lord Millett in the Pinochet Case.[27] which on this aspect was, however, a minority view. While he recognised the need to approach the comments in those decisions concerning adoption with some caution,[28] Merkel J considered recognition of jurisdiction without legislation was consistent with the nature of the international obligation that existed in relation to international crimes. A quite different situation arises in relation to non-universal international crimes as international law does not generally vest extra–territorial jurisdiction in states in relation to such crimes.

The one remaining issue Merkel J had to consider was whether statute or a principle or policy of the common law prevented the adoption of genocide as a crime justiciable under domestic law. Was treating genocide as part of domestic law ‘inconsistent with municipal law, the policy of the common law or public ‘policy’’?[29] Merkel J considered there was no statutory prohibition. The Commonwealth Criminal Code provision to which Whitlam J had attached some significance did not relevantly apply to general common law offences without a peculiar federal aspect. Merkel J also accepted that it was not for the courts to create new criminal offences. However, he concluded that the adoption into municipal law of international law was not the same as creation. Adoption of the offence does not involve creation of an offence by some new uncertain standard. Given the universal nature of the offence this was not a case of the courts usurping the role of the legislature but recognising the dynamic nature of international law.[30]

However, Merkel J found none of the allegations relied upon by the appellants was capable of raising an arguable case that any of the persons the subject of the proposed warrants and informations had engaged in any conduct that was capable of constituting the crime of genocide under international and domestic law. In particular, he said that the role of members of Parliament in supporting and voting for a constitutionally valid law could not possibly constitute criminal conduct in Australia. So even on his view, the action failed. Whitlam J also stated that, if he were wrong in holding that the prohibition on genocide was not part of Australian law, he agreed with these parts of Merkel J’s reasons for dismissing the action.[31]

In the Buzzacott Case, Merkel J found that the conduct complained of (that is, the failure to pursue World Heritage listing of Lake Eyre) was plainly not capable of constituting genocide under international or municipal law. Further, the plaintiff could not rely on rights and obligations under the World Heritage Convention, since rights under a treaty that have not been provided for in legislation do not give rise to a claim in Australian courts.[32] He also referred to previous cases, in which it had been held that decisions by the executive government to seek listing of properties under the World Heritage Convention are not justiciable.[33] Wilcox and Whitlam JJ agreed with Merkel J in relation to these issues.

Wilcox J expressed no conclusion as to whether the allegations made could satisfy the definition of genocide.[34] He noted that the facts in the cases had not been tested. However, he pointed to the need to demonstrate ‘genocidal intent’ in order to meet the definition, and suggested that the need for intent might have been overlooked by the persons who had brought the proceedings.

The Federal Court accordingly rejected the appeal in Nulyarimma v Thompson, and struck out the application in Buzzacott v Hill. The judgment of Merkel J on the status of genocide in domestic law, as well as the rebuttal of his reasoning on this aspect by the other judges, exposes the underlying issues that lie behind this difficult and complex area of the law. As one commentator has said, however, the case ‘emphasises rather than clarifies these difficulties’.[35]

The High Court

The story concerning the litigation needs to be completed. An application for special leave to appeal to the High Court against the judgment of the Federal Court was heard on 4 August 2000. The Court (Gummow, Kirby and Hayne JJ) refused special leave to appeal. The High Court expressed no view on the correctness of the majority decision in the Federal Court that genocide is not part of Australian common law. However, it found that, in any case, the acts complained of by the plaintiffs did not fall within the definition of genocide. It noted that the applicants had not been able to point to any authority supporting their proposition that the accepted international law definition of genocide extends to the types of conduct concerned. Further, in Nulyarimma v Thompson, doctrines of parliamentary privilege in relation to proceedings in Parliament would cause any appeal in that case to fail.[36]

Following Nulyarimma v Thompson

The Federal Court decision in Nulyarimma v Thompson and Buzzacott v Hill has been relied upon in a number of other cases, most of which have been brought by the same plaintiffs.

On 27 October 1999, Nyland J, in the Supreme Court of South Australi, citing Nulyarimma v Thompson, rejected an application for an interlocutory injunction to prevent the construction of the Hindmarsh Island Bridge on the basis that its construction would amount to genocide by causing serious mental harm to the local Aboriginal people. This judgment was upheld on appeal on 2 November 1999, by the Full Bench of the Supreme Court of South Australia, again relying on the Nulyarimma Case to hold that genocide as such is not known as an offence under Australian law.[37]

Mr Robbie Thorpe brought an action alleging genocide against Mr Kennett, then Premier of Victoria, which was dismissed by Warren J in the Supreme Court of Victoria. Warren J discussed the judgments in Nulyarimma v Thompson, and expressed strong reservations about the approach followed by Merkel J. She adopted the arguments of the majority in Nulyarimma, and declined to regard genocide as incorporated as a criminal offence in Victoria.[38]

In Buzzacott v Gray, von Doussa J in the Federal Court rejected an application on behalf of the ‘Aboriginal Genocide Prosecutors’ for an injunction to prevent the republic referendum.[39] In Buzzacott v Hugh Morgan,[40] in the Supreme Court of South Australia, Mr Buzzacott sought, among other things, an injunction to close down the Roxby Downs uranium mine which is run by Western Mining Corporation of which Mr Morgan is Managing Director, also on the basis of allegations of genocide. In a strike out action, Bleby J gave the plaintiff leave to amend the statement of claim, but referred at some length to the judgment in Nulyarimma v Thompson


The Underlying Issue

Having outlined briefly the recent judicial consideration of customary international law as part of Australian law in the context of genocide, it is necessary to consider some of the broader issues raised. At the heart of the matter lies an issue of constitutional principle. As Professor Feldman recognised in the previous issue of this Year Book,[41] the approach a state takes to the relationship between international law and domestic law raises significant issues of political theory. A monist approach, such as that reflected in the new South African Constitution, ‘restricts the sovereignty of the State and may accordingly limit the capacity of the internal political process to oversee the extent of the state’s international obligations and domestic powers.’[42] By contrast, the dualist approach adopted in the United Kingdom can, he says, be justified by reference to two considerations:

The first, derived from political theory, is concerned with self-determination, democracy and accountability. It would be wrong for national law to be subject to alteration by events on the international plane over which the municipal legislature has no control ... The second consideration derives from constitutionalism, particularly the principle of the rule of law… it should be possible to say with reasonable confidence whether or not a specified norm forms part of the municipal legal system. This should be achieved by principles laid down in the constitution or by rules validly made for that purpose under the constitution.[43]

It is contended that, in the Australian constitutional context, the dualist approach is applicable. The majority of the Full Federal Court was therefore correct in their cautious reasons. It must be acknowledged, however, that Merkel J carefully dealt with many of the arguments against the majority view and is cautious in his own way. He does not adopt a simplistic approach involving a direct incorporation of all customary international law, and recognises the difficulties where the content of international law is uncertain.

The debate in Australia about the incorporation of international law coincides with a renewed focus in the United States on the place of international law in domestic law under its constitutional arrangements. As John Rogers has put it:

The idea that international law is part of our law makes sense in the same way that ‘justice’ or ‘fairness’ or ‘sound policy’ is part of our law. That is, it forms the basis for decision when no other dispositive source controls.[44]

This, he contends, is all that the famous case of The Paquete Habana[45] stands for. This would come as a shock to more traditional United States commentators,[46]and to Professor Greig.[47] The argument of commentators such as Rogers is, however, based on constitutional principle. As he says:

In the area of international human rights law in particular, giving the United States courts the power to treat public international law as directly applicable ‘higher law’ would seriously distort the allocation of powers in our federal constitutional system … To say that the courts have an additional body of ‘higher law’ to apply, to be found in the whole amorphous body of customary international law, is to inject an enormously distorting overdose of additional power into the Judicial Branch.[48]

Other commentators who attack the ‘directly applicable’ position include Professors Bradley and Goldsmith. They contend that while United States courts historically did apply something akin to the British rule of automatic incorporation, that regime did not survive Erie v Tompkins.[49] After that decision, courts have applied customary international law ‘only when and to the extent they believe they are authorised to do so by the federal political branches’.[50]

The approach of these United States commentators who argue that international law is not directly part of domestic law finds some support in recent United States cases where private rights of action have sought to be pursued based on the direct application of international law. For instance, in Hawkins v Comparet–Cassani,[51] the Court said that the jus cogens status of the prohibition against torture did not support a cause of action for acts committed by United States government officials against a citizen of the United States. The Court said that, while federal courts may imply a personal right of action for violations of jus cogens norms, this is not automatic and the courts must consider whether there exist special factors counselling hesitation in the absence of affirmative action by Congress. In that case the Court placed some significance on the fact that Congress had enacted the Torture Victim Protection Act 1994 and it accordingly gave ‘great deference’ to congressional policy. The Court quoted from Handel v Artukovic[52 ]to the effect:

To imply a cause of action from the law of nations would completely defeat the critical right of the sovereign to determine whether and how international rights should be enforced in that municipality.[53]

The rule requiring incorporation of treaties reflects this very principle. The Australian High Court decision in Teoh[54] was sensitive to this issue to the extent it reaffirmed in no uncertain terms the fact that treaties did not give rise to direct causes of action in domestic law. However, its willingness to allow treaties to have a limited effect domestically through the mechanism of a legitimate expectation attracted considerable hostility from the political branches of government.[55] This was very much the result of a perception that the Court, by giving even this limited significance to unincorporated treaties, had intruded into matters that were for decision by the political or executive arms of government. One could expect a similarly strong hostile reaction if an Australian court was to adopt a strong incorporation approach to customary international law, particularly in areas of human rights. The cautious approach taken by the majority in Nulyarimma avoids provoking such a reaction. However, while the reluctance to incorporate a criminal offence may be well founded, this does not mean that customary international law has no place in Australian domestic law. The problem is discerning what that role exactly is or ought to be.

The place of international law in common law legal systems like that of Australia or England has often been debated in terms of a conflict between the automatic incorporation theory, favoured by Blackstone, and the transformation or source theory.[56] As Professor Greig observed in 1976, however, ‘[a]lthough historically there is substantial support for the general proposition that international law is part of English law, its value as a legal principle is subject to a number of qualifications.’[57] The result is that it is difficult to make broad generalisations. This was recognised by Wilcox J in Nulyarimma, where he said:

it is difficult to make a general statement covering all the diverse rules of international customary law. It is one thing, it seems to me, for courts of a particular country to be prepared to treat a civil law rule like the doctrine of foreign sovereign immunity as part of its domestic law, whether because it is accepted by those courts as being ‘incorporated’ in that law or because it has been ‘transformed’ by judicial act. It is another thing to say that a norm of international law criminalising conduct that is not made punishable by the domestic law entitles a domestic court to try and punish an offender against that law.[58]

Thus, ultimately it does not matter much whether one calls the way in which international law is applied domestically an incorporation or transformation approach. It has never been the case, despite some of the broad language in some of the earlier cases, that the whole body of customary international law has been treated as part of domestic law. It has always been a case of applying to a domestic dispute only those rules of international law suitable for application to the domestic dispute.

It is not, therefore, surprising that domestic courts readily apply as part of the domestic body of law, the rules of international law that confer immunities on foreign states or heads of state, or accord a foreign warship the protection arising from customary law of the sea. Many of these traditional rules of international law are now clearly incorporated in the common law.[59] Statute, often in implementation of a treaty, also now deals with many of the traditional areas of customary international law previously applied by domestic courts as part of the common law.[60] In these areas, as a result, the ‘status of customary international law in Australian law is not as great as might be thought in practical, if not in theoretical terms’.[61]

The development of the customary international law of human rights, applicable alike to citizen and foreigner, has raised more directly, as in some of the recent United States cases and in Buzzacott/Nulyarimma, whether the approach of applying broadly accepted international law rules in domestic courts can be simply extended to cover these new rules of international law. The decision in Buzzacott/Nulyarimma grappled with this issue. The majority took, as indicated, a cautious approach. Judged against broad constitutional principle and the practice in comparable common law countries, that approach is, in our view, to be preferred. The United States, which has traditionally had a strong incorporation approach, adopts a similar cautious approach to incorporation of customary international law rules concerning human rights. Given the margin of appreciation that applies when considering the compatibility of measures taken by states with their human rights obligations,[62] this approach seems particularly compelling.

The argument no doubt can be made that the situation of genocide as a jus cogens norm is rather different. Certainly this was behind the approach of Merkel J. However, even here there are strong arguments for a restrictive approach. While the prohibition on genocide is a jus cogens rule, it can be argued that the only consequence is that universal jurisdiction exists over perpetrators of such conduct. This still leaves a state with a choice whether to exercise that jurisdiction or to extradite the accused persons.[63] In this situation, it is not altogether surprising that courts have been reluctant to allow citizens to sue other citizens in domestic courts whether under the criminal law or otherwise in reliance on no more than the jus cogens status of the prohibition on genocide. Nor is it surprising that, in the Pinochet Case[64] in the United Kingdom, the courts debated at length what international law rule of immunity applied to heads of state, but no one other than Lord Millett suggested that the international prohibition of torture, which may also be a jus cogens rule, in some way had made its way into English law without statutory action. Hence it was only torture allegedly committed by Pinochet after 1988 (when the Torture Convention was incorporated into English law) that could be an extraditable offence.

The Future

The majority approach in Buzzacott/Nulyarimma

, which is correct in our view, does highlight the fact that the crime of genocide per se is not provided for under Australian law. Legislative action to remedy this omission may eventuate.

The Anti-Genocide Bill 1999 (Cth) was introduced by Democrat Senator Greig on 13 October 1999, to amend the Genocide Convention Act 1949, so as to ensure that genocide is unlawful in Australia. The Bill is drafted to make genocide a criminal offence. It applies to acts and omissions inside and outside Australia, but only Australian persons or persons present in Australia may be charged.

The Bill was referred to the Senate Legal and Constitutional Committee, which reported in June 2000.[65] The Committee concluded that anti-genocide legislation in Australia is both necessary and timely. It said that the ‘Bill has opened up the path for discussion of what form appropriate legislation should take’. The Committee recommended that Parliament formally recognise the need for anti-genocide laws, and that the Bill be referred to the Attorney-General for consideration. No government response has so far been made. It appears, however, that legislation to give effect to the treaty establishing an International Criminal Court may provide a mechanism for also dealing with genocide. A definitive statement by the High Court as to the place of customary international law seems unlikely in the near future.

[∗] QC, Chief General Counsel, Australian Government Solicitor. Mr Burmester was Counsel in Buzzacott representing the Commonwealth Ministers.

[∗∗] General Counsel, Environment Australia.

The views contained in this article are the authors’ own and should not be taken to represent government policy.

[1 ] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 286-7.

[2] [1999] FCA 1192; (1999) 165 ALR 621; for a note see (2000) 74 ALJ 738. A quite different perspective on the case from that put forward here is contained in D Guilfoyle, ‘Nulyarimma v Thompson: Is Genocide a Crime at Common Law in Australia?’ [2001] FedLawRw 1; (2001) 29 Federal Law Review 1.

[3] D W Greig, International Law (2nd ed, 1976) 55-60.

[4] Richardson v Forestry Commission

[1988] HCA 10; (1988) 164 CLR 261.

[5 ] Instead, negotiations were undertaken on an agreement between the Commonwealth and the relevant states for integrated catchment and water resource management within the Lake Eyre

Basin. Funding was also provided for various conservation projects.

[6] Re Thompson; Ex parte Nulyarimma

[1998] ACTSC 136; (1999) 136 ACTR 9.

[7] UN Doc A/CONF 183/9 (1998); 37 ILM 999.

[8] Above n 2, 641.

[9] Eg, Dietrich v R [1992] HCA 57; (1992) 177 CLR 292; Minister for Immigration and Ethnic Affairs v Teoh, above n 1; Victoria v Commonwealth (1996) 187 CLR 416; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 570-71.

[10] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 38.

[11] Minister for Immigration and Ethnic Affairs v Teoh, above n 1.

[12] Mabo v Queensland (No 2) (1992) 175 CLR 1, 42; Jago v District Court of New South Wales (1988) 12 NSW LR 558, 569; and see Dietrich v R, above n 9, 305-6, 321, 348-9, 360.

[13] Above n 1.

[14] Buzzacott v Hill, above n 2, 628.

[15] Ibid 630.

[16] Ibid.

[17] [1999] UKHL 17; [2000] AC 147.

[18] (1961) 36 ILR 277.

[19] Buzzacott v Hill, above n 2, 636-7.

[20] Section 1.1 of the Criminal Code (Cth).

[21] Buzzacott v Hill, above n 2, 637; Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1973] AC 435; Section 1.1. of the Criminal Code (Cth).

[22 ] Buzzacott v Hill, above n 2, 654.

[23] Ibid 642-655.

[24] Ibid 650.

[25] Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60; Chow Hung Ching v R [1948] HCA 37; (1948) 77 CLR 449.

[26] Buzzacott v Hill, above n 2, 653-4.

[27] Above nn 17 and 18 respectively.

[28] Buzzacott v Hill, above n 2, 661.

[29] Ibid 662.

[30] Ibid 666.

[31] Ibid 638.

[32] Ibid 676.

[33] Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274, 278-279 (Bowen CJ) and 306-308 (Wilcox J); Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261; and Queensland v Commonwealth [1989] HCA 36; (1989) 167 CLR 232.

[34] Buzzacott v Hill, above n 2, 627.

[35] R Piotrowicz, ‘Genocide, Custom and Australian Law’ (2000) 74 Australian Law Journal 740.

[36] High Court Transcript, 4 August 2000.

[37] Sumner v United Kingdom [1999] SASC 462.

[38] Thorpe v Kennett [1999] VSC 442.

[39] Buzzacott v Gray

[1999] FCA 1525.

[40] [1999] SASC 562.

[41] D Feldman, ‘Monism, Dualism and Constitutional Legitimacy’ [1999] AUYrBkIntLaw 7; (1999) 20 Aust YBIL 105.

[42] Ibid 105.

[43] Ibid 106.

[44] J Rogers, International Law and United States Law (1999) 135.

[45] [1900] USSC 8; 175 US 677(1900).

[46 ] L Henkin, ‘International Law as Law in the United States’ (1984) 82 Michigan Law Review 1555, 1561.

[47] See eg, Greig, above n 3, 65.

[48] Ibid 214-5.

[49] [1938] USSC 94; 304 US 64 (1938).

[50] C Bradley and J Goldsmith, ‘Pinochet and International Human Rights Litigation’ (1999) 97 Michigan Law Review 2129, 2160, and 2616 ff. See also by the same authors ‘Federal Courts and the Incorporation of International Law’ (1998) 111 Harvard Law Review 2260.

[51] 33 F Supp 2nd 1244 (1999); see also Byers v Paulser

997 F Supp 1380 (1998).

[52 ] 601 F Supp 1421 (1985).

[53] Above n 51, 1256

[54] Above n 1.

[55] See the Administrative Decisions (Effect of International Instruments) Bill 1999.

[56] The different views are discussed by Merkel J, in Buzzacott v Hill, above n 2, 642-648.

[57] Greig, above n 3, 56.

[58] Buzzacott v Hill, above n 2, 629.

[59] Eg, Pinochet, above n 17; Reid v Republic of Nauru [1993] VicRp 17; [1993] 1 VR 251.

[60] Eg, Foreign States Immunities Act 1985 (Cth); Diplomatic Privileges and Immunities Act 1967 (Cth).

[61] I A Shearer, ‘The Relationship between International Law and Domestic Law’ in B R Opeskin and D R Rothwell (eds), International Law and Australian Federalism (1997) 51.

[62] Eg, Handyside Case (1976) Ser A No 24[1976] ECHR 5; , 1 EHRR 737.

[63] L A Steven, ‘Genocide and the Duty to Extradite or Prosecute: Why the United States is in Breach of its International Obligations’ (1999) 39 Virginia Journal of International Law 425.

[64] [1999] 2 WLR 877.

[65] Commonwealth of Australia, Senate Legal and Constitutional Committee, Humanity Diminished: The Crime of Genocide: Inquiry into the Anti-Genocide Bill 1999 (2000); B Saul, ‘The International Crime of Genocide in Australian Law’ [2000] SydLawRw 24; (2000) 22 Sydney Law Review 527.

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