Australia
Jessica Howard; Timothy L H McCormack
Section: The ICC Statute and Commonwealth States
Permanent Link:
http://vlex.com/vid/australia-43095085
Id. vLex: VLEX-43095085
1 Domestic Prosecutions of International Crimes Prior to the Implementing Legislation 1.1 Prosecutions under customary and conventional international law 1.2 Prosecutions under other domestic or international legal provisions 2 Implementing Legislation 2.1 Title 2.2 When in force 2.3 Government departments involved 2.4 Amendments to existing domestic legislation 3 Co-operation with the International Criminal Court 3.1 Arrest and surrender 3.1.1 Procedure for arrest 3.1.2 Procedure for surrender 3.13 Constitutional and human rights concerns 3.2 Other forms of assistance 3.2.1 Forms of assistance pursuant to Article 93 3.2.2 Obligations outside the mutual assistance context 3.2.3 Enforcement of sentences 4 Incorporating the Crimes 4.1 Measure and extent of incorporation 4.1.1 Genocide 4.1.2 Crimes against humanity 4.1.3 War crimes 4.1.4 Crimes against the administration of the justice of the ICC 5 Jurisdiction of Domestic Courts and Principles of Liability 5.1 Grounds of jurisdiction 5.2 Temporal jurisdiction 5.3 Principles of liability 6 Rights of the Accused 7 Available Defences 7.1 Duress 7.2 Age 7.3 Intoxication 7.4 Self-defence 7.5 Diminished responsibility and insanity 7.6 Mistakes of fact and law 7.7 Superior orders 7.8 Other 8 Immunity, International Crimes and Domestic Courts 9 Trial Procedure and Punishment in Domestic Courts 10 Article 98 Agreements 10.1 Government response to American attempts to conclude Article 98 agreements
Australia
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 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..."10 The decision of the High Court in the...
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