Australian Cases Involving Questions of Public International Law 1999

Donald R Rothwell* and Ben Olborne **

International Law in General

International Law and Municipal Law - - Customary International Law - Native Title Amendment Act Nulyarimma v Thompson; Buzzacott v Minister for the Environment [1999] FCA 1192; 165 ALR 621 Federal Court of Wilcox, Whitlam and Merkel 11 The status of 'genocide' in Australian law was a matter of some comment throughout the 1990s, I gaining more prominence as claims have been made by that they have been subjected to acts of genocide. In Nulyarimma v Thompson and Buzzacott v Minister for the Environment, two separate claims of genocide being committed against indigenous Australians were joined and heard together. Nulyarimma concerned an appeal by four persons against a decision by Crispin J of the Supreme Court of the Australian Capital Territory upholding a decision by the Registrar of the Magistrates Court of the ACT to refuse to issue warrants for the arrest of a number of federal parliamentarians on information that they had committed acts of genocide.2 In particular, it was alleged that the Prime Minister, Mr John Howard, Deputy Prime Minister, Mr Tim Fisher, Senator Brian Harradine, and Ms Pauline Hanson through formulation of the Commonwealth Government's 'Ten Point Plan' and subsequent passage through the Commonwealth Parliament of the Native Title Amendment Act 1998 (Cth) had committed an act of genocide. In Buzzacott, proceedings were commenced against the Minister for the Environment, Senator Robert Hill, and the Minister for Foreign Affairs, Mr , alleging acts of genocide through their failure to apply for inclusion under the 1972 Convention for the Protection of the W orId Cultural and Natural Heritage3 of the lands of the Arabunna People, which included Lake Eyre in South Australia.

* Associate Professor, Faculty of Law, University of Sydney. ** Doctoral Candidate, University of Cambridge. See the decisions in Thorpe v Commonwealth ofAustralia (No 3) (1997) 144 ALR 677; Kruger II Commonwealth (1997) 146 ALR 126. 2 Re Thompson; Ex parte Nulyarimma (1998) 136 ACTR 9. 3 1037 UNTS 151; [1975] ATS No47.

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All members of the Federal Court gave the cases thorough consideration, and while ultimately the applications for relief were dismissed, the discussion on the status of genocide in Australian law is of considerable importance. The argument before the Full Federal Court was grounded as follows: • 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 • The universal crime of genocide, as a customary norm of international law, has been incorporated into the common law of Australia.4 In this respect, Wilcox and Whitlam JJ were in agreement that the crime of genocide did not exist in Australian law, notwithstanding its status in international criminal law. Independent of the existence of the crime under the terms of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,S Wilcox J was prepared to accept that the prohibition of genocide 'is a peremptory norm of customary international law, giving rise to a non• derogatable obligation by each nation state to the entire international community.'6 It was also accepted that the obligation imposed by customary international law upon a state is to extradite or prosecute any person within its territory who appears to have committed an act of genocide. It followed from this that it would be constitutionally permissible for the Commonwealth Parliament to legislate for the crime of genocide.? However, Wilcox J rejected that in the absence of legislation it would be possible to put a person on trial for the commission of an act of genocide: 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.8 This remained the position notwithstanding that genocide was considered an international crime, as it was Australian law which required that the crime be recognised as punishable. As there was no relevant statute, the only basis for the crime could be the common law.9 In reviewing whether genocide could be considered as recognised as a crime under the common law, Wilcox J saw this as opening up the debate between the 'incorporation' approach and the 'transformation' approach to international law

4 (1999) 165 ALR 621, 641 per Merkel 1. S 78 UNTS 227; [1951] ATS No 2. 6 (1999) 165 ALR 621, 627 per Wilcox 1. 7 Ibid 627 per Wilcox J; in this context reference was made to the High Court's judgement in Polyukhovich v Commonwealth (1991) 172 CLR 50 I. 8 Ibid 628 per Wilcox J; reference was made to the High Court decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 9 Ibid 629 per Wilcox J.