Nulyarimma v Thompson: Is Genocide a Crime at Common Law in Australia?

Date01 March 2001
Published date01 March 2001
DOI10.1177/0067205X0102900101
ORIGINALISM IN CONSTITUTIONAL INTERPRETATION NULYARIMMA V THOMPSON: IS GENOCIDE A CRIME AT
COMMON LAW IN AUSTRALIA?
Douglas Guilfoyle*
Australia will, I believe, ratify the convention and afterwards this Parliament will pass
the necessary legislation to show other countries that we join in universal condemnation
of the horror [of genocide].1
1. INTRODUCTION
In 1949 the Australian Parliament passed the Genocide Convention Act 1949 (Cth) to
approve Australia's ratification of The Convention on the Prevention and Punishment
of Genocide 1948.2 That Act did not make genocide a crime in Australia3 – that was to
be done once the Convention came into force. No such legislation has ever been
passed, though a Commonwealth Bill proposing to make genocide a crime is presently
before the Senate.4 In international law, the prohibition against genocide is customary
international law binding even on states not party to the Convention.5
While treaties only have effect in Australia if enacted by statute,6 the position of
customary international law is uncertain.7 Historically the common law has
automatically included recognised customary rules, subject to the qualification that
they are not inconsistent with statute law or "a skeletal principle" of the common law
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*
BA(Hons) LLB(Hons) (ANU); Solicitor, Mallesons Stephen Jaques, Sydney.
1
Cth Parl Deb 1949, Vol 203 at 1873 per Dr Evatt.
2
ATS 1951 No. 2.
3
Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [20] and [81]; M Flynn,
"Genocide: it's a Crime Everywhere, but not in Australia" (2000) 29 UWALR 59 at 63.
4
Anti-Genocide Bill 1999 (Cth): introduced into the Senate and second reading adjourned 13
October 1999; Bill and related matters referred to Senate Legal and Constitutional
References Committee, report tabled 14 August 2000.
5
Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide, 1951 ICJ Rep 15 at 23.
6
Dietrich v The Queen (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J; Minister for
Immigration and Ethnic Affairs v Ah Hin Teoh (Teoh) (1995) 183 CLR 273 at 286-7 per Mason
CJ and Deane J, at 298 per Toohey J, at 315 per McHugh J; Kruger and Bray v Commonwealth
(1997) 190 CLR 1 at 71 per Dawson J, at 87 per Toohey J; and note Parlement Belge (1879) 4
PD 129; (1880) 5 PD 197.
7
Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 203-4 per Gibbs CJ; A Mason, "International
law as a source of domestic law" in B R Opeskin and D R Rothwell (eds), International Law
and Australian Federalism (1997) 210 at 213 and 220; cf L Erades, Interaction between
International and Municipal Law: a Comparative Case Law Study (1993) at 859.

2
Federal Law Review
Volume 29
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(known as the "incorporation doctrine").8 If this principle were recognised, genocide
could be a common law crime. The most powerful objections to a common law crime
of genocide are that: it is inconsistent with the codification of criminal law in Australia,
particularly the Criminal Code 1995 (Cth);9 or it is inconsistent with the principle that
the courts may no longer create crimes.10 However, statutes are to be construed, where
possible, consistently with Australia's international obligations11 and it is possible to
find a reading of the Code that is consistent with Australia's obligation to provide for
the punishment of genocide.12 There is also an important difference between the courts
creating a new crime and incorporating an existing crime of customary international
law.13
Foremost, though, is the argument that Australia should not follow the
incorporation doctrine, and should require customary international law, like treaties,
to be enacted by statute in order to have direct effect in domestic law. Such an
argument is founded in Australian approaches to parliamentary supremacy, the
separation of powers and federalism. Parliamentary supremacy does raise important
reasons for not giving direct effect to the law of treaties in domestic law but, as
discussed below, the same concerns do not apply to customary international law.
Therefore, the crime of genocide can be received into common law and, on the
preferable approach, already has been. Thus, this article contends that genocide
constitutes a common law crime and that the contrary Federal Court decision in
Nulyarimma v Thompson was wrongly decided.14
The proposition that genocide is a crime at common law, however, needs to be seen
in the context of: first, international law; second, the historical evolution of the
jurisprudence on the reception of customary international law; third, the High Court
decisions dealing with international law; fourth, the Federal Court case Nulyarimma v
Thompson; and, finally, the policy considerations of federalism. Each of these issues is
addressed in the following Parts.
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8 I
Brownlie,
Principles of Public International Law (5th ed 1998) at 42; M N Shaw, International
Law (4th ed 1997) at 105-110; D J Harris, Cases And Materials On International Law (5th ed
1998) at 74-83; D W Greig, International Law (2nd ed 1976) at 57; F A Mann, Foreign Affairs in
English Courts (1986) at 121; L Erades, above n 7 at 665, 883-4; the phrasing is adopted from:
Mabo v Queensland [No 2] (1992) 175 CLR 1 at 43 per Brennan J.
9
Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [54] per Whitlam J.
10 Ibid at [53] per Whitlam J.
11 Polites v The Commonwealth (1945) 70 CLR 60 at 68 per Latham CJ, at 74 per Rich J, at 77 per
Dixon J, at 79 per McTiernan J, and at 81 per Williams J; Dietrich v The Queen (1992) 177 CLR
292 at 306 per Mason CJ and McHugh J; Kruger and Bray v Commonwealth (1997) 190 CLR 1
at 71 per Dawson J, and at 87-8 per Toohey J; Teoh (1995) 183 CLR 273 at 287-8 per Mason
CJ and Deane J, and at 315 per McHugh J (only in the case of actual ambiguity).
12 Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621; at [163]-[165] per Merkel J;
see also 5.3.3, below.
13 See 5.3.4, below.
14 Nulyarimma v Thompson [1999] FCA 1192; (1999) 165 ALR 621.

2001
Nulyarimma v Thompson: Is Genocide a Crime at Common Law in Australia?
3
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2. INTERNATIONAL LAW, JUS COGENS AND THE UNIVERSAL CRIME
OF GENOCIDE
2.1 Genocide and the sources of International Law
International law's two principle sources are treaty and customary international law
(custom).15 Understanding the status of the prohibition against genocide at
international law requires an acknowledgment that the crime exists both as a matter of
treaty law and custom. Indeed, as discussed below, the Genocide Convention is widely
seen as codifying pre-existing custom.
Custom comprises two elements: state practice and opinio juris (a belief that the
practice is dictated by law).16 For custom to arise, there must be a consistent practice
that is widespread among states17 and evidence that the practice stems from opinio
juris.18 Examples of practice may include states' political and judicial actions, such as:
"resolutions in the General Assembly, … decisions of international judicial institutions,
decisions of national courts, treaties and the general practice of international organs" as
well as the actions of government departments, "legislative institutions, courts,
diplomatic agents and political leaders".19
The International Court of Justice (ICJ) has sometimes been prepared to assume or
infer the existence of opinio juris "on the bases of evidence of a general practice, or a
consensus in the literature, or the previous determinations of … international
tribunals."20 Further, resolutions of, and voting in, international fora may constitute
evidence of both opinio juris and state practice (discussed below).21
Treaty law may interact with custom. Entry into a treaty provides evidence of state
practice, though opinio juris would still be required to create custom.22 A treaty
codifying custom may also contain rules binding on non-parties as custom.23
Otherwise, a specific treaty obligation takes precedence over general rules of custom.24
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15 Brownlie above n 8; Statute of the International Court of Justice, ATS 1945 No. 1, Article
38(1).
16 Ibid at 4-11; Shaw above n 8 at 58-59 and 67.
17 Shaw above n 8 at 59-61; Brownlie above n 8 at 5-7.
18 Ibid at 58 and 68-70; Brownlie above n 8 at 5-11.
19 Ibid at 65; cf Brownlie above n 8 at 5; I A Shearer, Starke's International Law (11th ed 1994) at
32-4; for an example of awareness of this in the federal Parliament see: Cth Parl Deb 1949,
Vol 203 at 1873 per Dame Enid Lyons.
20 Brownlie above n 8 at 7; cf H Burmester, "Ascertaining International Human Rights Rules
and Standards in Domestic Courts: War Crimes and Other Examples" in P Alston (ed),
Towards an Australian Bill of Rights (1994) 311 at 315.
21 H Charlesworth, "Customary International Law and the Nicaragua Case" (1984-7) 11
Australian Yearbook of International Law 1 at 24; cf Burmester above n 20 at 315.
22 Ibid at 12; Shaw above n 8 at 75-6.
23 Ibid; Shaw above n 8 at 75.
24 M Dixon and R McCorquodale, Cases and Materials on International Law (3rd edn 2000) at 44;
Shaw above n 8 at 96; cf R Jennings and A Watts (eds) Oppenheim's...

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