Author:Jessica Howard; Timothy L H McCormack

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1 Domestic Prosecutions of International Crimes Prior to the Implementing Legislation
1. 1 Prosecutions under customary and conventional international law

It is established doctrine that international law does not become part of Australian Law, in the sense of creating either justiciable rights or enforcable penalties, in the absence of implementing legislation. This fundamental principle does not preclude international law influencing the development of Australian Law in the absence of implementing legislation. However, Australian courts have consistently held that, irrespective of the source of an international legal obligation - custom, treaty or even UN Security Council Resolution -the failure of Parliament to enact legislation to implement Australia's international obligations precludes resort to those obligations either for domestic legal redress or as a source of legal authority.

The High Court of Australia articulated the general principle in 1936 in Burgess; Ex Parte Henry1 Since then the principle has been reaffirmed in a succession of cases: (1) in relation to treaties to which Australia is a party;2 (2) in relation to customary international law obligations binding on Australia;3 and (3) in relation to UN Security Council Resolutions binding on Australia pursuant to Article 25(1) of the UN Charter.4 The general principle has never been challenged and has also consistently been affirmed in those Page 128 cases where Parliament has enacted implementing legislation to give effect to international obligations.5 In Simsek v Macphee, for example, Stephen J traced the rationale for the general principle to the separation of executive and legislative powers under the Westminster system of government:

"in our constitutional system treaties are matters for the Executive, involving the exercise of prerogative power, whereas it is for Parliament, and not for the Executive to make or alter municipal law."6

According to the Separation of Powers doctrine, Parliament, as the house of the elected representatives of the people, is paramount. Accordingly, if Parliament chooses not to implement Australia's international legal obligations, irrespective of the reason for that omission, it is not for the courts to consider the international obligations part of Australian law. Similarly, if Parliament chooses to exercise its constitutional authority to enact legislation unambiguously inconsistent with an international legal obligation owed by Australia, it is not for the courts of this country to override Parliament's explicit intention. As mentioned above, however, international law can, and increasingly does, have an influence on the development of Australian law apart from the enactment of implementing legislation to give domestic legal effect to international legal obligations.

There are currently three different ways in which international law can have such an effect:

(1) It is an established principle of statutory interpretation that the legislature does not intend to violate fundamental norms of human rights or principles of international law,7 though, as mentioned above, a clearly expressed intention to do so will be valid.8In situations of statutory ambiguity, courts are permitted to have regard to extrinsic materials, including treaties or other international instruments referred to in the Act, in order to resolve the ambiguity or to prevent a manifestly absurd result.9

(2) Developments in international law can assist courts in determining the content of the common law of Australia. According to Brennan J in Mabo v Queensland [No. 2f.

"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..."10Page 129

The decision of the High Court in the Mabo case was particularly significant because it recognised, for the first time in Australian legal history, that a 200-year-old rule of the common law of Australia was wrong. Indigenous title to land had never been recognised under Australian law because of the legal fiction that title to land was vested in the British Crown on the basis that Australia was uninhabited - or terra nullius- at the time of British settlement. Most importantly for the purpose of this discussion, Brennan J was heavily influenced by developments in international human rights law, the international law of acquisition of territory and the international legal recognition of indigenous title to land to inform his view of the need to alter the Australian common law.11 Judges in other decisions have also demonstrated a willingness to look to international law to determine the content of the Australian common law.12

(3) The High Court has demonstrated a willingness to give some effect to Australia's treaty obligations that have not been implemented into domestic law. In Minister for Immigration and Ethnic Affairs v Teoh13 the High Court was required to consider the effect of a treaty that Australia had ratified but that had not been the subject of domestic implementing legislation - in that particular case, the UN Convention on the Rights of the Child.14 The High Court stated that an unincorporated treaty may give rise to a 'legitimate expectation' on the part of a person that an administrative decision maker, required to exercise a statutory discretion concerning that person, would do so in conformity with a convention that Australia had ratified, notwithstanding that there was no domestic legislation in place.15 The Court stressed that the legitimate expectation could be displaced by legislation or by 'executive indications to the contrary', and that the right was properly viewed as one to have the treaty considered, rather than a justiciable right that the treaty obligation be applied.16

Consistent with the foregoing discussion, there has never been a prosecution of an alleged international crime in Australia on the basis of either customary or conventional international law. Furthermore, any such prosecution could not occur without a fundamental shift in Australian law - an unlikely event in the foreseeable future. Australian courts have no jurisdiction in respect of the crimes in the ICC Statute by virtue solely of the status of those crimes at international law or even by virtue of Australia's ratification of the Statute.17Page 130

1. 2 Prosecutions under other domestic or international legal provisions

Prior to the enactment of Australia's implementing legislation for the Rome Statute, the international crimes of genocide and crimes against humanity did not exist as crimes in their own right in Australian domestic criminal law.18 The international crimes of torture and hostage-taking, both of which can constitute crimes against humanity, have been implemented into Australian criminal law on the basis of Australia's multilateral treaty obligations in respect of the two crimes, but there have been no prosecutions under either legislative enactment.19 Similarly, grave breaches of the four Geneva Conventions of 1949 and of Additional Protocol I of 1977 also constitute domestic crimes in Australia by virtue of the Geneva Conventions Act 1957 but again no prosecutions have ever been undertaken pursuant to that legislation.

The only prosecutions of international crimes in Australia have all been initiated pursuant to the War Crimes Act 1945. The legislation was initially drafted to facilitate the Australian trials of Axis defendants for alleged atrocities during the course of World War II against Australian prisoners of war and, in some cases, against civilians in foreign occupied territory. Most of the victorious Allied nations followed on from the Nuremberg and Tokyo tribunals with national 'subsidiary' trials against either German or Japanese defendants, and Australia was no exception. In a relatively little-known but important chapter of Australia's legal military history, Australian military tribunals conducted 300 war crimes trials in nine different locations against a total of 952 Japanese defendants between November 1945 and April .20 Death sentences were confirmed against 148 defendants.21

The same War Crimes Act was substantially amended (actually almost repealed in its entirety and substituted with...

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