Australian Indigenous Law Reporter
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Indigenous Law Reporter |
|
Court and Tribunal Decisions - Australia
Federal Court of Australia (Wilcox, Whitlam and Merkel JJ)
1 September, 1999
[1999] FCA 1192; 165 ALR 621.
CRIMINAL LAW — international crime of genocide — meaning of genocide — intentional element — prohibition of genocide as a norm of international customary law — no legislation providing for prosecution of genocide claims in Australian courts — whether genocide is cognisable in Australian courts in the absence of legislation.
ABORIGINES — claims that sponsorship of Native Title Act 1993 (Cth) amendments and failure to seek World Heritage listing of Lake Eyre region were acts of genocide – impropriety of courts inquiring into actions of Parliament — obligations arising under World Heritage Convention.
On 6 July 1998, the appellants in this matter attended at the Magistrates Court of the Australian Capital Territory and requested that the Registrar issue warrants for the arrest of John Winston Howard (the Prime Minister), Timothy Andrew Fischer (the Deputy Prime Minister), Brian Harradine (a senator) and Pauline Lee Hanson (a member of the House of Representatives). The warrants of arrest were sought in respect of informations which contained charges that those persons, acting in their respective capacities, in formulating or supporting the Commonwealth Government’s ‘Ten Point Plan’ and the Native Title Amendment Bill 1997 (Cth), had committed the criminal offence of genocide. The offence of and acts which constitute genocide are defined in the UN Convention on the Prevention and Punishment of the Crime of Genocide (the Convention) under arts II, III and IV. The Registrar declined to issue the warrants on the ground that the offence of genocide was not known to the law of the Australian Capital Territory. The appellants applied to the Supreme Court of the Australian Capital Territory for an order nisi requiring the Registrar to show cause why an order should not be made requiring him to issue the warrants and the informations.
The application was heard by Crispin J in the Supreme Court of the Australian Capital Territory: see Re Thompson; Ex parte Nulyarimma [1998] ACTSC 136; (1998) 136 ACTR 9. His Honour (at 30) concluded that ‘no offence of genocide is known to the domestic law of Australia’ and, therefore, the Registrar’s decision was not capable of being impugned. The appellants appealed from the judgment of Crispin J to a Full Court of the Federal Court. The appeal from Crispin J in Re Thompson was heard together with a motion to strike out another proceeding in the Court. The strike out motion was referred by a Judge to a Full Court sitting in Adelaide, but adjourned by that Court to be dealt with by the Full Court of the Federal Court in conjunction with the Australian Capital Territory appeal.
Each matter essentially involved a claim by Aboriginal persons that conduct engaged in by certain Ministers of the Commonwealth or Commonwealth parliamentarians was and is contributing to the destruction of the Aboriginal people as an ethnic or racial group. Wadjularbinna Nulyarimma of the Gungalidda people, an appellant in one matter, claimed that the extinguishment of native title constituted the crime of genocide. Kevin Buzzacott of the Arabunna people claimed that the failure of the Commonwealth and certain of its Ministers to proceed with World Heritage listing of the lands of the Arabunna people, including Lake Eyre, was and is an act of genocide, a breach of fiduciary duty and was otherwise unlawful. This, the applicant claimed, gave rise to an entitlement to mandatory injunctions compelling the respondents to ‘forthwith proceed with the World Heritage listing of the Arabunna lands’. Both matters essentially turned on the connection between the land and the Aboriginal people, their spirit and culture. The appellants’ grounds of appeal were 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 and that the universal crime of genocide, as a customary norm of international law, has been incorporated into the common law of Australia. It was contended that because the universal crime of genocide had been incorporated as part of the common law of Australia, this may give rise to criminal liability for acts of genocide (wherever committed) which can be tried in any superior court of record in Australia.
Together with supporting materials, a number of the individual appellants and Kevin Buzzacott addressed the Court concerning their personal experiences in order to explain, and enable the Court better to appreciate, the basis for their contentions. They spoke of being taken away from their Aboriginal mothers and taught ‘white ways’. They spoke of the pain and the continual suffering their people experience on a day to day basis. They spoke of the importance of their cultural and spiritual connection with the land and how denying their right to it is slowly destroying their existence.
On the 1 September 1999, the Full Court of the Federal Court of Australia, sitting in the ACT, constituted by Justices Wilcox, Whitlam and Merkel, handed down their decision as to whether or not the international crime of genocide was a recognisable crime in Australian domestic law. Justices Wilcox and Whitlam held that genocide is not an offence currently recognised in Australian law. Justice Merkel held that genocide was able to be adopted into municipal laws on the grounds of experience, common sense, legal principle and public policy and was able to be prosecuted, but was not satisfied that the evidence before the court constituted the requisite intent.[1]
Two cases have been heard together by this Court. They are different in nature and derivation. Their common feature is that they involve claims by members of the Aboriginal community that certain Commonwealth Ministers and members of Parliament have engaged in genocide.
...
[5] Anybody who considers Australian history since 1788 will readily perceive why some people think it appropriate to use the term ‘genocide’ to describe the conduct of non-indigenes towards the indigenous population. Many indigenous Peoples have been wiped out; chiefly by exotic diseases and the loss of their traditional lands, but also by the direct killing or removal of individuals, especially children. Over several decades, children of mixed ancestry were systematically removed from their families and brought up in a European way of life. Those Peoples who have been deprived of their land, but who nevertheless have managed to survive, have lost their traditional way of life and much of their social structure, language and culture.
[6] Not surprisingly, this social devastation has led to widespread (although not universal) community demoralisation and loss of individual self-esteem, leading in turn to a high rate of alcohol and drug abuse, violence and petty criminality followed by imprisonment and, often, suicide. Many (not all) communities suffer substandard housing, hygiene and nutrition, leading to prevalent diseases that are rarely experienced by non-indigenous communities. The result of all this, as numerous studies have demonstrated, is that indigenous Australians face health problems of a different order of magnitude to those of other Australians, leading to an expectancy of life only about two-thirds that of non-indigenous people.
[7] Leaving aside for the moment the matter of intent, it is possible to make a case that there has been conduct by non-indigenous people towards Australian indigenes that falls within at least four of the categories of behaviour mentioned in the Convention definition of ‘genocide’: killing members of the group; causing serious bodily harm or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and forcibly transferring children of the group to another group.
[8] Many of us non-indigenous Australians have much to regret, in relation to the manner in which our forebears treated indigenous people; possibly far more than we can ever know. Many of us have cause to regret our own actions. As the recent report of the Human Rights and Equal Opportunity Commission, Bringing Them Home, reminded (or taught) us, the practice of removing children of mixed ancestry from Aboriginal communities was not something confined to the distant past; it continued well into the 1960s in some parts of Australia. There must be many people, still in their 30s and 40s, who were taken from their mothers as infants.
[9] One of those people, although somewhat older, is Wadjularbinna Nulyarimma, the first appellant. She recounted her story to the Court in moving and eloquent terms. She told about the rape of her mother by white men, as a result of which she was conceived, the only mixed ancestry child in a black family. She told how her mother rubbed goanna fat and charcoal into her skin to make her black; nonetheless she was taken from her family and put into a mission home where she was forbidden to speak her own language. She told us how she came to marry:
I was just called in one day by the superintendent, ‘we’re marrying you off into a white family’. And I was absolutely shocked. ‘No, I don’t want to go,’ I said, ‘I don’t want to go’. ‘This is the best thing for you. You are not a black person; you have white blood in you.’ I came from a black woman’s womb. They are my family, my people and I have some white person, superintendent, telling me that he knows what is best for me and his best for me to marry into a white family was added stress, added pain, added trauma. I had no idea. A little black girl coming from humble beginnings now going to be put into the world of snobbery. Not just an urban black; I am going to be there where people measure their worth by their wealth, their position and power, poor sick people, but I was soon to learn that.
[10] Wadjularbinna Nulyarimma had several children, but eventually left them. She told us how this came about. Her mother came to the cattle station where she lived with her husband:
... my husband then said she could not stay there. ‘This is not a blacks’ camp.’ She had to go. And I had to face the facts, who am I? Am I this black girl playing a game of let us pretend I am white? Well, I had better start dealing with it and just be true to myself. And up to that date in 1970, I came to terms with who I was. And it was the first time I made a choice. And I said to my mother, ‘I’m going home.’ She said, ‘You leave your husband, now?’ And I said, ‘Mamma, I’ve made up my mind.’ And I made it up. I had to decide and my children — I destroyed my children.
In Aboriginal law you stay with the man until you part through death. And my mother looked at me with tears streaming down her face and she said, ‘You break Aboriginal law, now?’ I was damned if I did and I was damned if I did not. And my children’s lives, I had to decide. That is what white Australia did to me. And I looked into my little children’s eyes and I had to tell them. They cried and said, ‘We want to stay with our daddy.’ But I said, ‘I’m somebody else, with a different law, different values, different system.’ And I told them, in theory, all about it, that they were brought up as white children. Now my children are trying to find their identity and trying to fit in.
[11] The other appellants also told stories that indicated the trauma still suffered by indigenous Australians as a result of their treatment by whites. It is important to us as a nation that we do not treat indigenous devastation as only a thing of the past. The trauma lives on, and many of the causes as well.
[12] However, deplorable as our history is, in considering the appropriateness of the term ‘genocide’, it is not possible too long to leave aside the matter of intent. As already mentioned, it is of the essence of the international crime of genocide that the relevant acts be intended to destroy, in whole or in part, a national, ethnical, racial or religious group. Some of the Australian destruction clearly fell into this category. A notable example is the rounding up of the remaining Tasmanian Aboriginals in the 1830s, and their removal to Flinders Island. There are more localised examples as well. Before that date in Tasmania, and both before and after that date on the Australian mainland, there were shooting parties and poisoning campaigns to ‘clear’ local holdings of their indigenous populations. Nonetheless, it remains true that the biggest killers were diseases unintentionally introduced into Australia by whites and the consequences of denying Aboriginals access to their traditional lands. With the benefit of hindsight, we can easily see the link between denial of access and those consequences; but it is another matter to say they were, or should have been, foreseen by the first Europeans who settled on the land (with or without official approval), whose main objective was to make settlement pay.
[13] Of course, there was an element of intent about all the killings. A squatter who shot at Aborigines in reprisal for them spearing his cattle must be taken to have intended to kill the individuals at whom he shot; it cannot necessarily be presumed he intended to destroy the group as such, even in part.
[14] ... In the case of a dispossession of land and destruction of Peoples that occurred gradually over several generations and stemmed from many causes, it is impossible to fix any particular person or institution with an intention to destroy the Aboriginal people as a whole.
[15] I mention the matter of intent to destroy an ethnical or racial group because it is something that may have been overlooked by those who instituted the proceedings now before the Court. Without offering any personal comment on the matter, I can understand the view that the proposals listed in the ‘Ten Point Plan’, and substantially enacted in the 1998 amendments to the Native Title Act, further disadvantaged indigenous people in relation to their traditional lands. Given the intimate connection between their traditional lands and Aboriginal and Torres Strait Islander people, and the importance of their lands to their way of life and culture, it is understandable some would see the ‘Ten Point Plan’ and 1998 amendments as only the latest step in a process that has been going on for more than 200 years. However, if one is to use a legal term like ‘genocide’ to describe that process, it is important to remember this entails a requirement to prove an intent to destroy a people.
[16] Similarly, I note the material put before the Court by Mr Buzzacott in connection with the importance to the Arabunna people of conserving the natural qualities of the Lake Eyre region. Mr Buzzacott points out the need to retain the waterholes that have so long sustained life in this arid region. He says mining operations have already affected the waterholes, leading to a loss of reliable water and of flora and fauna. He claims this has adversely affected the utility of the waterholes for his People and their ability to maintain their traditional way of life. If these allegations are correct — I bear in mind they have yet to be tested — the proper conservation of this area is critically important to his People. It is understandable that, in the belief this would give the area a greater measure of protection, he favours its inclusion on the World Heritage List. It is also understandable he should see the apparent decision of Senator Hill and Mr Downer not to proceed with an application for inclusion as inimical to the survival of his People. However, even assuming their decision may have that effect, it is another matter to say the Ministers were actuated by an intent to destroy the Arabunna People, in whole or in part.
[17] The existence of a particular intent is a matter of fact, and the facts of the present cases have yet to be investigated. However, even if it is possible for them, in their respective cases, to demonstrate genocidal intent, neither the appellants nor Mr Buzzacott would, in my opinion, be entitled to succeed. Although I agree with both my colleagues that genocide is a crime under international customary law, like Whitlam J but unlike Merkel J, I do not think that, in the absence of appropriate legislation, it is cognisable in an Australian court.
...
[20] However, it is one thing to say Australia has an international legal obligation to prosecute or extradite a genocide suspect found within its territory, and that the Commonwealth Parliament may legislate to ensure that obligation is fulfilled; it is another thing to say that, without legislation to that effect, such a person may be put on trial for genocide before an Australian court. 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. Ratification of a convention does not directly affect Australian domestic law unless and until implementing legislation is enacted. This seems to be the position even where the ratification has received Parliamentary approval, as in the case of the Genocide Convention. In Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286-287, Mason CJ and Deane J said:
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.
[21] Counsel for the appellants and Mr Buzzacott point out that genocide is one of a handful of ‘international crimes’, along with piracy, torture, slavery and — more debatably — crimes against peace, war crimes and crimes against humanity. Hannikainen Peremptory Norms (Jus Cogens) in International Law (1988) at 285 defines an ‘international crime’ as ‘a grave offence against international law which the international community of States recognises as a crime and for the committing of which the responsible individuals can be punished under international law even if the domestic law of a particular State does not declare it to be punishable’ (emphasis added) ...
[22] However, even if Hannikainen’s statement is correct, it is not enough to say that, under international law, an international crime is punishable in a domestic tribunal even in the absence of a domestic law declaring that conduct to be punishable. If genocide is to be regarded as punishable in Australia, on the basis that it is an international crime, it must be shown that Australian law permits that result. There being no relevant statute, that means Australian common law.
[23] It is at this point that the contest between the ‘incorporation’ approach and the ‘transformation’ approach becomes material. Merkel J reviews that contest in some detail.
...
[32] It follows from what I have said that I am of the opinion that Mr Thompson was correct in refusing to issue the warrants sought by the appellants. In the absence of enabling legislation, the offence of genocide is not cognisable in the courts of the Australian Capital Territory ...
[33] The assumption underlying the other proceeding, s 23 of 1999, appears to be that, if genocide is a criminal offence known to Australian law, civil remedies are available. This assumption is highly questionable but it is unnecessary to reach a final view about it; if I am correct in concluding that genocide is not presently cognisable in Australia, it must follow the genocide claim in that proceeding cannot succeed ...
[35] ... The question said to be common to both proceedings is whether genocide forms part of the law of Australia.
[36] It is accepted by all parties that under customary international law there is an international crime of genocide, which has acquired the status of jus cogens or a peremptory norm. This means that States may exercise universal jurisdiction over such a crime. Counsel for the appellants submit, therefore, that courts in all countries have jurisdiction over genocide. They rely, in support of their contention, on the opinion of Lord Millett in Reg v Bow Street Magistrate, Ex p Pinochet (No 3) [1999] UKHL 17; [1999] 2 WLR 827 at 912.
...
[52] ... Even if it be accepted that customary international law is part of the common law, no one has identified a rule of customary international law to this effect: that courts in common law countries have jurisdiction in respect of those international crimes over which States may exercise universal jurisdiction. That is hardly surprising. Universal jurisdiction conferred by the principles of international law is a component of sovereignty (Polyukhovich per Toohey J at 661), and the way in which sovereignty is exercised will depend on each common law country’s peculiar constitutional arrangements.
[53] In England and in Australia crimes are distinguished into common law and statutory crimes, according to whether the legal source of, and the authority for, the statement that particular conduct is criminal is found in common law or statute. In this context the phrase ‘common law’ means law created by the decisions of judges, and I find it odd to speak, as his Lordship does, of the ‘usually statutory’ jurisdiction of the English criminal courts being ‘supplemented by the common law’. Courts are no longer able to create new criminal offences: Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1973] AC 435. Nonetheless, counsel for the appellants submit that the status of genocide as jus cogens compels recognition of genocide as part of the common law of Australia. This submission strikes formidable statutory obstacles.
[54] Section 1.1. of the Criminal Code (Cth) provides:
1.1 The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.
This provision came into operation on 1 January 1997 and abolished common law offences under Commonwealth law. Since that date genocide cannot be recognised as a common law offence under Commonwealth law.
[55] This leaves for consideration the law of the Australian Capital Territory. Section 26 of the Magistrates Court Act 1930 (ACT) (the Act) provides for the laying of informations in respect of ‘an indictable offence or an offence which may be dealt with summarily as provided in section 19’. The receipt of such an information is a necessary condition precedent to the grant by the registrar of the Magistrates Court of a summons or warrant under s 12(1) of the Act. The registrar’s refusal to issue process under s 12(1) was the subject of the application for an order nisi dismissed by Crispin J.
[56] Since the statute law of the ACT makes no express provision for an offence of genocide, s 19 of the Act has no application. The phrase ‘indictable offence’ is unhelpfully defined by s 5(1) of the Act as ‘an offence which may be prosecuted before the Supreme Court by charge or indictment’. However, s 477(1) of the Crimes Act 1900 (ACT), which permits the summary disposal of certain cases, acknowledges that ‘a common law offence’ under the law of the ACT is an indictable offence. Thus the threshold question on the application for the order nisi was: is genocide such a common law offence? ...
[57] ... The exercise of universal jurisdiction to prosecute such an offence is a matter for the Commonwealth, yet Parliament has expressly abolished common law offences under Commonwealth law. The courts of the States and the Territories can have no authority for themselves to proscribe conduct as criminal under the common law simply because it has now become recognised as an international crime with the status of jus cogens under customary international law ...
[58] It follows that, in my opinion, genocide is not an offence in respect of which an information may be laid under the Act, and the registrar had no authority to issue the process requested. I would accordingly dismiss the appeal from Crispin J.
[59] If, however, I am wrong and genocide is an offence in the ACT, then the appeal must nonetheless be dismissed for the reasons given by Merkel J. So far as the other matter before the Court is concerned, I agree with his Honour and with the order he proposes.
...
[77] Counsel appearing for the respondents contended that customary international law and, in particular, the universal crime of genocide under customary international law can only form part of the law of Australia if legislation by an Australian Parliament enacts the law. To date, no such enactment has occurred. Accordingly, so it is contended, the offence of genocide is not known in Australian law and cannot give rise to any criminal or civil liability in an Australian court. Counsel also submitted that the material in both cases does not raise an arguable claim of genocide in any event. Counsel appearing for the Registrar in Re Thompson contended that whether or not genocide was part of Australian law (about which the Registrar put no submission) the appeal must fail as the material before the Registrar was such that he was bound in law to refuse to issue the warrants.
[78] Although the parties were in dispute over the status of the prohibition against genocide under Australian law they were in agreement, correctly in my view, on its status as a universal crime under international law. In that regard, it was common ground that genocide, as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) has been recognised, since at least 1948, as a crime under customary international law over which nation States may exercise universal jurisdiction.
[79] Articles II, III and IV of the Genocide Convention, which define conduct constituting the offence of genocide and associated offences, provide as follows:
Article II
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.
Article III
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
Article IV
Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
...
[82] The area of dispute between counsel for the respective parties related to whether the crime of genocide, which attracts universal jurisdiction under international law, can become part of Australian law without a legislative act creating genocide as an offence. That issue involves consideration of the circumstances in which customary international civil and criminal law can become part of the municipal law of Australia.
[83] The two schools of thought as to the manner in which rules of international customary law can become part of English law were explained by Lord Denning MR in Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529 at 553-554 as follows:
One school of thought holds to the doctrine of incorporation. It says that the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament. The other school of thought holds to the doctrine of transformation. It says that the rules of international law are not to be considered as part of English law except in so far as they have been already adopted and made part of our law by the decisions of the judges, or by Act of Parliament, or long established customs. The difference is vital when you are faced with a change in the rules of international law. Under the doctrine of incorporation, when the rules of international law change, our English law changes with them. But, under the doctrine of transformation the English law does not change. It is bound by precedent. It is bound down to those rules of international law which have been accepted and adopted in the past. It cannot develop as international law develops.
(i) The doctrine of incorporation. The doctrine of incorporation goes back to 1737 in Buvot v Barbuit (1736) 3 Burr 1481; 4 Burr 2016; sub nom Barbuit’s case in Chancery (1737) Forr 280, in which Lord Talbot LC (who was highly esteemed) made a declaration which was taken down by young William Murray (who was of counsel in the case) and adopted by him in 1764 when he was Lord Mansfield CJ in Triquet v Bath [1764] EngR 44; (1764) 3 Burr 1478:
Lord Talbot declared a clear opinion — ‘That the law of nations in its full extent was part of the law of England ... that the law of nations was to be collected from the practice of different nations and the authority of writers’. Accordingly, he argued and determined from such instances, and the authorities of Grotius, Barbeyrac, Binkershoek, Wiquefort etc, there being no English writer of eminence on the subject.
That doctrine was accepted, not only by Lord Mansfield himself, but also by Sir William Blackstone, and other great names, too numerous to mention. In 1853 Lord Lyndhurst in the House of Lords, with the concurrence of all his colleagues there, declared that ... ‘the law of nations, according to the decision of our greatest judges, is part of the law of England’: see Sir George Cornewall Lewis’s book, Lewis on Foreign Jurisdiction (1859), pp 66-67.
(ii) The doctrine of transformation. The doctrine of transformation only goes back to 1876 in the judgment of Cockburn CJ in Reg v Keyn (1876) 2 Ex D 63, 202-203:
For writers on international law, however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it ... Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorise the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing, we should be unjustifiably usurping the province of the legislature.
To this I may add the saying of Lord Atkin in Chung Chi Cheung v The King [1939] AC 160, 167-168:
So far, at any rate, as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law.
[84] The incorporation approach treats customary international law, upon its proof as such and without more, as part of the common law of England. The transformation theory requires a further step; a rule of international law only becomes a part of English law when it is accepted and adopted by judicial decision as such (‘common law adoption’) or by legislation (‘legislative adoption’). The point of practical distinction between the incorporation and common law adoption approaches is that under the latter approach the rule of international law is adopted upon a court determining that the rule is not inconsistent with existing legislation, the common law, or public policy and that it is therefore appropriate that it should form part of the common law of England. An additional question arises to whether international criminal law can only become part of municipal law by legislative adoption.
[85] Counsel for the appellants and Mr Buzzacott contend that, either by incorporation or common law adoption the prohibition of genocide has become, or ought now to be received as, part of the common law of Australia. Counsel for the respondents contend that it is only by legislative adoption, which has not yet occurred, that the crime of genocide can be considered part of the law of Australia.
...
[131] It is plain from a survey of the case law in England, Canada, New Zealand and Australia that the courts have had considerable difficulty in formulating the principles to be applied in determining when a court is to give its imprimatur to the ‘jural quality’ of a rule of international law or put another way, whether a rule of customary international law has become part of domestic law. However, it appears that in Australia at least, Dixon J’s ‘source’ view, which equates generally with what I have loosely described as the common law adoption approach, holds sway over the incorporation or legislative adoption approaches.2
[132] The more difficult task is to define with some precision what is meant by the ‘source’ view or the common law adoption approach. In my view, the approach can be formulated as follows:
1. A recognised prerequisite of the adoption in municipal law of customary international law is that the doctrine of public international law has attained the position of general acceptance by or assent of the community of nations ‘as a rule of international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decisions’.3 Once a rule has been established as having the general acceptance of nation States in the manner stated by Lord Macmillan it will have satisfied the ‘assent’ or ‘acceptance’ of nations criteria of Cockburn CJ in Keyn and Lord Atkin in Chung Chi Cheung and will be given ‘the force of law within the realm’.4
2. The rule must not only be established to be one which has general acceptance but the court must also consider whether the rule is to be treated as having been adopted or ‘received into, and so become a source of English law’.5
3. A rule will be adopted or received into, and so a source of, domestic law if it is ‘not inconsistent with rules enacted by statutes or finally declared by [the courts]’: Chung Chi Cheung (at 168) per Lord Atkin. Plainly, international law cannot be received if it is inconsistent with a rule enacted by statute. However, the position is less clear with a rule that might be inconsistent with the common law. To the extent that international law is to be received into domestic law, it will have necessarily altered or modified the common law and, to that extent, might be said to be inconsistent with it. Thus, in my view a strict test of inconsistency could not have been intended. I would accept Sawer’s observation that inconsistency with the common law (that is, the rules declared by the courts) means ‘inconsistency with the general policies of our law, or lack of logical congruence with its principles’.6
4. A rule of customary international law is to be adopted and received unless it is determined to be inconsistent with, and therefore ‘conflicts’ with, domestic law in the sense explained above. In such circumstances no effect can be given to it without legislation to change the law by the enactment of the rule of customary international law as law.7 This approach subordinates rules of customary international law to domestic law thereby avoiding a fundamental difficulty of the incorporation approach which, by requiring the common law to invariably change to accord with rules of international law, subordinates the common law to customary international law. In my view, to do so amounts to re-instating Blackstone’s view which I regard Lord Atkin and Dixon J as having rejected.8
5. The rules of customary international law, once adopted or received into domestic law have the ‘force of law’ in the sense of being treated as having modified or altered the common law. The decision of the court to adopt and receive a rule of customary international law is declaratory as to what the common law is. Upon a court so declaring the common law to be different from what it was earlier perceived to be effect will be given to the declaration ‘as truly representing the common law’.9 A rule, once so declared, is applicable to both civil and criminal proceedings in a domestic court.10
6. As Trendtex Trading demonstrates, international law evolves and changes from time to time. However, unlike the common law, the evolution of, and change, in international law is established by evidence and other appropriate material. Thus, it may be that in certain instances the adoption will only be as from the date the particular rule of customary law has been established.
...
[133] The authorities to which I have referred do not suggest that the principles governing the adoption of customary international law relate only to international civil law and not to international criminal law. The issue appears to be an open question that has not yet been the subject of authoritative decision although dicta to which I later refer supports the adoption into municipal law of international criminal law in respect of universal crimes. In the first instance it is appropriate to approach that issue by considering the applicability of the above principles to genocide.
[134] Even using Lord Alverstone CJ’s criteria in West Rand Central Gold Mining11 (at 406-407) genocide, as a universal crime, has been ‘recognised and acted upon’ by Australia by its ratification of the Genocide Convention and the approval of that ratification by the Commonwealth Parliament through the enactment of the Genocide Convention Act 1949 (Cth). Further, the definition of a ‘political offence’ in s 5 of the Extradition Act 1988 (Cth) also gives effect to Article VII of the Genocide Convention by excluding genocide from being a political crime for the purposes of protecting a person from extradition for political crimes.
[135] The universal crime of genocide also meets the additional criterion of Lord Alverstone CJ of being ‘so widely and generally accepted, that it can hardly be supposed that any civilised State would repudiate it’.12 Although Lord Alverstone’s observations related to proof of a rule of customary international law, when a norm such as prohibition of genocide meets his criteria, it is difficult to discern any policy reason for rejecting the adoption of that norm as part of a nation’s municipal law. In that regard, Australia’s executive and legislative ratification of the Genocide Convention is confirmation of Australia’s acceptance that genocide is a universal crime under international law. Thus, although the ratification of the treaty does not incorporate it into Australian domestic law as such, it is nevertheless confirmation of Australia’s recognition of the status of genocide as a universal crime under international law.
[136] Further, as was pointed out by Lord Millett in Pinochet at 911-912 crimes attract universal jurisdiction where they are ‘so serious and on such a scale that they can justly be regarded as an attack on the international legal order’. As recent international experience in Rwanda, Bosnia, Kosovo and elsewhere has shown, universal crimes directly impact upon and attack ‘the international legal order’ and cannot be considered purely internal matters of sovereign States.
...
[154] It is clear that under customary international law the jurisdiction to prosecute in respect of universal crimes vests in nation states, it being a matter for the legal system of the particular state how the jurisdiction is to be exercised. The significance of Eichmann13 for present purposes is that the Court, in a carefully reasoned decision, concluded that under customary international law jurisdiction vested in Israel as a common law state directly or by municipal statute. The same conclusion was also arrived at by Lord Millett in Pinochet.
...
[156] In the cases, to which I have referred, relating to universal crimes the issue of adoption of international law as part of municipal common law was not a matter directly in issue and thus only arose incidentally. It is therefore appropriate to approach the judgment in Eichmann and the comments of Lord Millett in Pinochet in favour of adoption with some caution. Nevertheless, it is significant that under international law the duties in respect of universal crimes arise as non-derogable obligations of all states. Thus, save as to the question of prosecution or extradition there is no discretion as to whether to fulfil the obligation. Therefore a vesting under the common law, rather than by a discretionary exercise of legislative power, is consistent with the principles of international law.
[157] The above analysis, commencing with jurisdiction in respect of piracy vesting in the Admiralty Court without legislation prior to 1536 and concluding with Lord Millett’s observations in Pinochet, does not support the view that customary international law, whether civil or in respect of universal crimes, can only be incorporated into municipal law in common law states, like Australia, by legislation. A different situation arises in respect of international criminal law in respect of non-universal international crimes where extraterritoriality and the status of jus cogens, is absent.
[158] Such crimes may arise under treaties or conventions which establish the offence and a legal framework for those states party to the agreements to prosecute the crimes. Examples are international conventions concerned with drug trafficking, environmental protection and the taking of civilian hostages.14 As the crimes are not universal crimes under international law the offences vest jurisdiction only in those states party to the particular convention.15
[159] The reason for the requirement of legislation in such cases is, unlike the situation in respect of universal crimes, international law does not vest extraterritorial jurisdiction generally in nation states in such matters.
[160] In my view there is no binding authority or persuasive jurisprudential support for the Commonwealth’s submission that adoption of customary international civil law or criminal law in relation to universal crimes, as such, into Australian municipal law requires legislation to that effect. As explained earlier, as the issue was not argued in Pinochet or Polyukhovich I do not accept that either decision is determinative in favour of accepting the respondents’ contentions.
[161] Accordingly, for the foregoing reasons, subject to one matter, I do not accept that different policy reasons or principles ought to apply to the adoption of customary international criminal law in relation to universal crimes into municipal law. The matter to which I refer is the policy of the common law that it is no longer the function of the courts to create a new offence. Thus, the conclusion that customary international civil and criminal law in relation to universal crimes, can be adopted and received into Australian domestic law without legislation does not, of itself, answer the question whether to adopt a universal crime (such as genocide) as a crime justiciable under municipal law is inconsistent with the policy of the common law or public policy.
[162] The remaining issue is whether genocide is not to be received into, and so become a source of, domestic law as to do so would be inconsistent with municipal law, the policy of the common law or public policy.
...
[165] Adoption is also not inconsistent with any of the requirements of the common law in respect of a crime. Genocide, as a crime, is clearly defined under international law, may be prosecuted in a superior court of record in any State (and probably any Territory) in Australia and would be punishable by that court in accordance with the policies and principles of the common law in relation to common law offences. I do not accept the contention on behalf of the Commonwealth that the uncertainty in that regard is such that adoption should be refused. The common law has long accepted a court’s general powers of punishment in respect of common law crimes.16 I see no reason why similarly general powers cannot be recognised by the common law in the punishment of genocide.
[166] The primary contention of the Commonwealth was that the courts are no longer able to create criminal offences17 and that the creation of new crimes is a matter of policy for the legislature, rather than the courts, to determine. Thus, so it is contended, the extent to which international criminal law is to be incorporated into domestic law and also whether Australia’s international obligations are to be implemented domestically, is for the legislature alone to determine.18 Certainly, the endeavour to codification the criminal law of Australia, to which I have referred, offers strong support for the Commonwealth’s contention as does the now well established authority that the creation of new crimes is a matter of policy for the legislature.
[167] However, it is not accurate to say that the reception into the common law of a universal crime under international law involves the courts in ‘creating’ a new crime. Rather, the court is determining whether to ‘adopt’ and therefore receive as part of the common law an existing offence under international law which has gained the status of a universal crime. However, there is force in the contention that the court’s adoption of genocide as a crime will result in a new offence being established under domestic law and that that is the function of the legislature and not the courts ... Put another way it can be contended that it is fundamentally inconsistent with the public policy of codification of the criminal law in Australia.
[168] However put, the primary policy consideration against adoption is that it involves courts in creating a new criminal offence which the courts no longer have the power to do. Support for that view is to be found in R v Rogerson at 304 where McHugh J, citing Knuller, stated that courts are no longer able to create criminal offences ...
[169] Lord Diplock (at 479) was also unequivocal about the state of the law in England stating:
The constitutional setting in which judges in earlier centuries claimed the power to create new criminal offences has long since passed away. To have reasserted it in 1962 was, in my view, an unacceptable judicial usurpation of what has now become an exclusively legislative power.
[170] The principle that courts no longer have power to create new offences was subsequently affirmed by the House of Lords in R v Withers [1975] AC 842; at 857-8 per Lord Dilhorne at 863, per Lord Simon and at 877 per Lord Kilbrandon.
[171] Historically, the creation of criminal offences was recognised as the domain of the courts ...
[172] By the 19th century, the role of Parliament had clearly changed. It now sat at regular intervals and did concern itself with legislating with respect to criminal offences.
...
[175] Support for the proposition that courts’ power to create new offences did not cease to exist but rather was, as a matter of practice, accepted by the courts as having been assumed by Parliament, is found in a number of English decisions earlier that century in which some residual power was asserted ...
[176] For present purposes I accept that Knuller and Withers establish that in municipal law the function of creating new offences now rests with Parliament and that such residual power as the courts may have retained to create new criminal offences has now lapsed. Plainly, strong policy considerations support that conclusion. The declaration of acts as criminal where they have not been seen to be so before usurps the proper role of Parliament. The exercise of courts’ power to create a new offence will also introduce an unwarranted uncertainty into the criminal law. Certainty as to the law, which enables individuals to know which actions are criminal and which actions are not criminal is an essential element of the criminal law. Further, any change in the criminal law requires a value judgment that is better left to Parliament ...
[177] However, the authorities are concerned with the ‘creation’ of new offences under municipal law and not the adoption into municipal law of offences under international law. In my view the latter situation was not considered in, and is not governed by, the decisions in Knuller or Withers. That is not to say that the same, or similar policy considerations that underlie those decisions should not lead to the same conclusion.
[178] Neither the creation of uncertainty nor the imposition of a value judgment are involved in determining whether genocide, as a crime of universal jurisdiction under international law is to be adopted as part of municipal law ... The evolution of the prohibition against genocide to the status of jus cogens and its adoption in the common law does not involve the creation of a new standard leaving potential offenders uncertain as to whether they have, or have not, engaged in criminal conduct. In that regard international criminal law refuses to countenance retrospectivity (Polyukhovich at 575 per Brennan J) ...
[179] That leaves only the primary policy consideration being that, by adoption, the courts are usurping the role of the legislature. The reasons discussed earlier for not requiring that there be legislative adoption in respect of customary international law generally, and in particular in respect of universal crimes, in my view afford an answer to this consideration. The courts are not creating a new offence by reference to the courts’ view of public policy; rather the courts are determining, by reference to criteria established by the common law, whether by adoption, municipal law is to recognise and therefore receive that which has evolved into a crime of universal jurisdiction in international law.
...
[181] It would be anomalous for the municipal courts not to continue their longstanding role of recognising, by adoption, the changes and developments in international law. Accordingly, in my view there is no inconsistency involved in the common law continuing to recognise the historical, and increasingly important, role of customary international law, always of course, subject to the legislature’s power to abrogate, vary or confirm the operation of the common law of Australia in that regard.
...
[183] Returning to the question I raised earlier, in my view genocide is an a fortiori example of where a rule of international law is to be adopted as part of municipal law. Some may see a decision to that effect as a new legal development. However, as Sir Ninian Stephen observed in his 1981 Southey Memorial lecture:
Development has always been the life-blood of the common law and the more swiftly our society changes, the greater the need for developments in the law to keep pace with those changing mores.19
[184] More importantly, however, it is difficult to see why a court should turn its back on over 300 years of acceptance of the law of nations forming part of the common law. As Lord Denning’s discussion in Trendtex Trading demonstrates, the issue over that period has been between the incorporation or transformation approaches, rather than whether adoption can only occur with legislation. As was said by Justice McHugh in a recent paper:
The law is a social instrument — a means, not an end. It changes as society changes. As Justice Cardozo recognised, law may well be influenced by logic, historical development, or tradition, but ‘[t]he end which the law serves will dominate them all’. In Justice Cardozo’s view, ‘[n]ot the origin, but the goal is the main thing’.20
But few lawyers today doubt the truth of the statement of Oliver Wendell Holmes jnr that the ‘life of the law has not been logic: it has been experience’. Lord Reid said that, when a judge has ‘some freedom to go in one or another direction’, he or she should have regard to ‘common sense, legal principle and public policy in that order’.21
[185] In the present case I have no difficulty in determining that the ‘end’ or ‘goal’ which the law serves will be better served by treating universal crimes against humanity as part of the common law in Australia. Further, a decision to incorporate crimes against humanity, including genocide, as part of Australia’s municipal law at the end of the 20th century satisfies the criteria of experience, common sense, legal principle and public policy.
[186] For the foregoing reasons I am of the view that the offence of genocide is an offence under the common law of Australia. As it is plain that genocide was a universal crime under customary international law at the time of the events relied upon in the two matters before the Court it is unnecessary to consider the date upon which genocide first became a universal crime under international law.
[187] ... The appellants have succeeded in establishing that the ground upon which the Registrar refused to issue the arrest warrants and the informations, being that the offence of genocide was not known to the law of the Australian Capital Territory, was wrong in law. However, that is not the end of the matter as the appellants, who are seeking a discretionary remedy, must nevertheless establish that they are entitled to the relief they seek.
...
[190] The grant of relief sought by the appellants is discretionary. It is well established that the Court will exercise its discretion to refuse such an application, even if an error of law is established, in the event that it concludes that it is ‘futile’ to grant the relief sought...22
[191] Thus, if the Registrar would be ‘bound in law’ to arrive at the same decision or the facts alleged do not constitute an offence, the orders sought by the appellants will be refused notwithstanding that the Registrar erred in law in making his decision on the particular ground upon which he relied.
...
[193] As explained by Crispin J there are obviously fundamental difficulties confronting the appellants. In substance, in reliance upon D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91; Hughes and Vale Pty Ltd v Gair [1954] HCA 73; (1954) 90 CLR 203; Sankey v Whitlam (1978) 142 CLR 1; R v Murphy (1986) 5 NSWLR 18 and R v Jakson (1987) 8 NSWLR 116, his Honour held that:
...
[195] An objection of the appellants, and many other Aboriginal persons, to the ‘Ten Point Plan’ and the Native Title Amendment Act 1998 (Cth) is that it resulted in the unjustifiable extinguishment of native title in certain circumstances. In the present case, in substance, it was contended that that extinguishment gave rise to the crime of genocide. Crispin J (at 34) dealt with the complaint, inter alia, on the basis that the formulation of the legislative policy in relation to the ‘Ten Point Plan’, was as much part of the conduct of parliamentary business as the presentation of a Bill to enact the policy into law and it would defeat relevant public policy considerations if the protection given to members of parliament by the law could be circumvented by prosecuting them for antecedent formulation of the policies reflected in legislation.
...
[200] It is common ground that under international law the ‘act charged’ must be one of the acts set out in Article II of the Genocide Convention. As Dawson J (at 72) in Kruger noted, the Genocide Convention did not deal with cultural genocide; references to cultural genocide having been expressly deleted from it in the course of the drafting of the Convention ...23 Thus, a claim of conduct committed with intent to destroy in whole, or in part, the culture of a national, ethnical, racial or religious group would not, without more, fall within Article II of the Genocide Convention Ú
...
[202] I have made the above observations as I am conscious of the danger of raising unrealistic expectations about what might be achieved by recourse to the law to secure what might be perceived to be just outcomes for the Aboriginal people of Australia. Whilst, understandably, many Aboriginal people genuinely believe that they have been subjected to genocide since the commencement of the exercise of British sovereignty over Australia last century, it is another thing altogether to translate that belief into allegations of genocide perpetrated by particular individuals in the context of modern Australian society. In the present matter none of the allegations relied upon by the appellants are capable of raising an arguable case that any of the persons the subject of the proposed warrants and informations have engaged in any conduct that is capable of constituting the crime of genocide under international and domestic law.
[203] Accordingly, for the above reasons I am satisfied that:
...
[206] The respondents contended that the application should be struck out and the proceeding be dismissed or permanently stayed primarily on the ground that the claims could not give rise to any reasonable cause of action known to the law. It was contended that:
[207] With respect to the applicant’s claim for ‘damages’ based on other alleged causes of action, the respondents’ submission is that the claim is bound to fail as:
...
[209] The World Heritage Convention, and the World Heritage Properties Conservation Act 1983 (Cth) (the World Heritage Act) which gave effect to the Convention, were considered by the High Court in Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 (the Tasmanian Dams case), Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261 and Queensland v Commonwealth [1989] HCA 36; (1989) 167 CLR 232.
...
[211] The World Heritage Act, which was enacted to give effect in Australia to its obligations under the World Heritage Convention, is primarily concerned with ensuring protection and conservation of property defined in s 3A as ‘identified property’.
[212] ‘Identified property’ is defined as property which is subject to an inquiry to determine whether it forms part of the cultural or natural heritage, is subject to World Heritage list nomination, is included in the World Heritage list or is declared by regulations to form part of the cultural or natural heritage. Restrictions might be imposed on ‘identified property’ by a Proclamation made by the Governor General where such property is being or is likely to be damaged or destroyed: see ss 6-11 and Queensland v Commonwealth at 235-238. Additional protection is given to Aboriginal sites but only where such sites are situated within identified property: see ss 8 and 11.
[213] As the Arabunna lands do not fall within any of the categories of ‘identified property’, any rights which the applicant can seek to claim or enforce in the present proceeding must be limited to such rights (if any) as he has in relation to conduct of the executive government under the World Heritage Convention, rather than under the World Heritage Act.
[214] The World Heritage Convention imposes a duty on each State party to identify and delineate cultural heritage properties situated within its territory which are suitable and appropriate for protection and conservation in accordance with the Convention. In Richardson, Mason CJ and Brennan J (at 290), after observing that the Convention does not sustain the view that the duty to ensure protection does not arise or attach to land until the State identifies and delineates that land as part of the heritage, added:
This is not to say that a failure on the part of a State to protect land, which is ultimately identified as part of the heritage, pending that identification is a breach of duty capable of enforcement. It is for each State to determine what it will do by way of protecting a particular property pending resolution of its status as part of the heritage. But the taking of action by a State to protect or conserve a particular property in its territory pending resolution of the status of that property as part of the heritage is to carry out and give effect to the Convention because the taking of the action is incidental to the State’s duty to ensure protection of the heritage and to the attainment of the object of the Convention.
...
[218] Plainly, a decision not to proceed with World Heritage listing of a particular property involves the same, or substantially similar, categories of policy considerations as a decision to proceed with such a listing. Accordingly, for the reasons given in Peko-Wallsend,24 the decision sought to be impugned in the present case is not justiciable, as such, in a Municipal Court.
...
[223] In the present case the indirect role of conventional international law is of no avail to the applicant as his claims rely on the World Heritage Convention as a direct source of individual rights and obligations.
[224] It follows from the foregoing discussion that, in so far as the Application seeks relief to compel any of the respondents to proceed with the World Heritage listing of the Arabunna lands or claims damages as a result of the failure of the respondents to proceed with the World Heritage listing of those lands, it must fail as it relies upon non-justiciable claims.
...
[228] Further, although the World Heritage Convention and the World Heritage Act provide for protection of Aboriginal cultural sites as part of world cultural heritage, their ambit is protection of that heritage for the benefit of the national and international community. Thus, even putting aside the difficulty of reliance upon the Convention as a source of any fiduciary obligation, neither the Convention, or the legislation to give effect to it, treat the indigenous people of Australia, as such, as being persons whose special interests are being protected by properties being nominated for World Heritage Listing.
[229] Accordingly, for the foregoing reasons the claims for relief based on fiduciary duty do not give rise to arguable causes of action and are to be struck out.
...
[231] Although I have concluded that genocide is a universal crime under international law and municipal law, the conduct complained of in the application is plainly not capable of constituting genocide under international or municipal law. Accordingly, it is unnecessary to consider whether, and if so the circumstances in which, genocide might give rise to civil liability or civil remedies ...
In the matter of A5 of 1999 — the appeal be dismissed.
In the matter of S23 of 1999 — the proceeding be dismissed. ?
No A5 of 1999
Counsel for the Appellants:
J W Burnside QC and S Senathiraja
Solicitor for the Appellants:
Simon Northeast Solicitors & Barristers
Counsel for the Respondent:
R Bayliss
Solicitor for the Respondent:
ACT Government Solicitor
No S39 of 1999
Counsel for the Applicant:
J W Burnside QC and S Senathiraja
Solicitor for the Applicant:
Simon Northeast Solicitors & Barristers
Counsel for the Respondents:
H Burmester QC and Dr M Perry
Solicitor for the Respondents:
Australian Government Solicitor
[1] The full text of this judgment is available at <www.austlii.edu.au/au/cases/cth/federal_ct/1999/1192.html>.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2000/4.html