Domestic application of international law
Australia
Domestic
LegislationJudicial Decisions Articles Resources and
Links
Crimes Crime of Aggression
No provision.
According to information provided by the Global Institute for the Prevention of Aggression, government or parliamentary officials in Australia are currently working on the ratification of the Kampala amendments on the crime of aggression (see for example Status of Ratification and Implementation of the Kampala Amendments on the Crime of Aggression as of 01Dec14).
On 16 February 2012, at the Pacific Outreach Roundtable on the ICC in Sydney, participants from Australia, Cook Islands, Marshall Islands, Palau, Papua New Guinea, Samoa, Tonga, Tuvalu and New Zealand agreed that it was desirable for all Pacific Island Countries to become States Parties to the Rome Statute and called upon the region to consider acceding to the Statute as amended in 2010 (i.e. including the amendments on war crimes and on the crime of aggression).Crimes Against Humanity
The offence of crimes against humanity is prohibited under Division 268 of the Criminal Code Act 1995 of Australia (the Criminal Code), Subdivision C, sections 268.8 to 268.23:
Criminal Code Act 1995.
(Act No. 12 of 1995 as amended, taking into account amendments up to Statute Law Revision Act No. 5 of 2011)
Office of Legislative Drafting and Publishing, Attorney-General's Department, Canberra, Australia.Genocide
The offence of genocide is prohibited under Division 268 of the Criminal Code Act 1995 of Australia (the Criminal Code), Subdivision B, sections 268.3 to 268.7 .
Australia ratified the Convention on the Prevention and Punishment of the Crime of Genocide in 1949. The ratification was approved by means of the Genocide Convention Act 1949 (Act No. 27 of 1949). Following the Federal Court's decision in Nulyarimma v Thompson (1999), in which the Court resorted to the absence of legislation to implement the Convention in order to dismiss the Aborigines' claims (see full text of judgment below), Senator Brian Greig (Australian Democrats) introduced an Anti-Genocide Bill, which would amend the Genocide Convention Act 1949 to implement Australia's obligations under the Convention, to ensure that genocide is unlawful in Australia. The said Bill was first introduced on October 13, 1999 and lapsed at the end of Parliament 12 Feb 2008. It was eventually abandonned in favour of the International Criminal Court Act 2002 (see text below), an Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court. The International Criminal Court Act 2002 declared genocide a crime.Criminal Code Act 1995.
(Act No. 12 of 1995 as amended, taking into account amendments up to Statute Law Revision Act No. 5 of 2011)
Office of Legislative Drafting and Publishing, Attorney-General's Department, Canberra, Australia.
Genocide Convention Act 1949. An Act to approve of Ratification by Australia of the Convention on the Prevention and Punishment of the Crime of Genocide, and for other purposes. (Act No. 27 of 1949 as amended)
Office of Legislative Drafting and Publishing, Attorney-General's Department, Canberra, Australia.
Anti-Genocide Bill 1999. (First Reading). A Bill for an Act to give effect to the Convention on the Prevention and Punishment of the Crime of Genocide, and for related purposes.
Office of Legislative Drafting and Publishing, Attorney-General's Department, Canberra, Australia.
[Progress: Lapsed at end of Parliament 12 Feb 2008 at Senate]War Crimes
War crimes are prohibited under Division 268 of the Criminal Code Act 1995 of Australia (the Criminal Code), Subdivision C, sections 268.24 to 268.101:
Criminal Code Act 1995.
(Act No. 12 of 1995 as amended, incorporating amendments up to Statute Law Revision Act No. 5 of 2011)
Office of Legislative Drafting and Publishing, Attorney-General's Department, Canberra, Australia.
War Crimes Act 1945. An Act to provide for the Trial and Punishment of War Criminals. (Act No. 48 of 1945 as amended, taking into account amendments up to Act No. 4 of 2010)
Office of Legislative Drafting and Publishing, Attorney-General's Department, Canberra, Australia
War Crimes Amendment Act 1988. An Act to amend the War Crimes Act 1945. (Act No. 3 of 1989 as made)
Attorney-General's Department, Canberra, Australia
Geneva Conventions Act 1957. An Act to enable effect to be given to certain Conventions done at Geneva on 12 August 1949 and to a Protocol additional to those Conventions done at Geneva on 10 June 1977, and for related purposes. (Act No. 103 of 1957 as amended, taking into account amendments up to Act No. 18 of 2009)
Office of Legislative Drafting and Publishing, Attorney-General's Department, Canberra, Australia
Jurisdiction
The offences of genocide, crimes against humanity and war crimes are subject to unrestricted category D jurisdiction, which is defined in section 15.4 of the Criminal Code Act as applying "(a) whether or not the conduct constituting the alleged offence occurs in Australia; and (b) whether or not a result of the conduct constituting the alleged offence occurs in Australia." There is no requirement that the victim or the perpetrator be an Australian citizen, resident or body corporate.
For offences under Divisions 268 and 274, the Attorney-General's consent is generally required before a prosecution can be commenced (sections 268.121 and 274.3). Whilst the consent rules vary depending on the type of offence, the Attorney-General's consent is always required for offences that occur wholly outside Australia. In exercising discretion as to whether the prosecution should proceed, the Attorney-General may have regard to matters including considerations of international law, practice and comity, prosecution action that is being, or might be brought, in a foreign country and other matters of public interest. See:
Information provided by Australia on the scope and application of universal jurisdiction in accordance with General Assembly resolution 64/117.
[General Assembly resolution 64/117 (A/RES/64/117) of 15 January 2010, "[R]equests the Secretary-General to invite Member States to submit, before 30 April 2010, information and observations on the scope and application of the principle of universal jurisdiction, including information on the relevant applicable international treaties, their domestic legal rules and judicial practice, and to prepare and submit to the General Assembly, at its sixty-fifth session, a report based on such information and observations." This document contains the reply provided by Australia to the said request.]
International Criminal Court
Rome Statute of the International Criminal Court: Australia signed the Rome Statute on 09 December 1998 and deposited its instrument of ratification on 01 July 2002.Upon ratification, Australia made the following declaration:
"The Government of Australia, having considered the Statute, now hereby ratifies the same, for and on behalf of Australia, with the following declaration, the terms of which have full effect in Australian law, and which is not a reservation: Australia notes that a case will be inadmissible before the International Criminal Court (the Court) where it is being investigated or prosecuted by a State. Australia reaffirms the primacy of its criminal jurisdiction in relation to crimes within the jurisdiction of the Court. To enable Australia to exercise its jurisdiction effectively, and fully adhering to its obligations under the Statute of the Court, no person will be surrendered to the Court by Australia until it has had the full opportunity to investigate or prosecute any alleged crimes. For this purpose, the procedure under Australian law implementing the Statute of the Court provides that no person can be surrendered to the Court unless the Australian Attorney-General issues a certificate allowing surrender. Australian law also provides that no person can be arrested pursuant to an arrest warrant issued by the Court without a certificate from the Attorney-General. Australia further declares its understanding that the offences in Article 6, 7 and 8 will be interpreted and applied in a way that accords with the way they are implemented in Australian domestic law."
The Government of Australia also made the following notification under article 87 (1) and (2) of the Rome Statute of the International Criminal Court:10 March 2004
".....[P]ursuant to paragraph 1 (a) of Article 87 of the Rome Statute,.....the Australian Government has designated the Australian Embassy to The Netherlands as the diplomatic channel for transmission of requests for cooperation in accordance with that Article.
".....[P]ursuant to paragraph 2 of Article 87 of the Rome Statute, .....any such request for cooperation in accordance with that Article should be either be in, or accompanied by a translation into, English."International Criminal Court Act 2002. An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes. (Act No. 41 of 2002 as made).
Australian Government ComLaw.
Nulyarimma v Thompson. (Includes two corrigenda dated 2 September 1999) [1999] FCA 1192 (1 September 1999)
[1999] FCA 1192, Federal Court of Australia Australia - Commonwealth, 1st September, 1999
Polyukhovich v Commonwealth. ("War Crimes Act case"). [1991] HCA 32; (1991) 172 CLR 501 (14 August 1991)
Humanity Diminished: The Crime of Genocide.
Inquiry into the Anti-Genocide Bill 1999, Legal and Constitutional Affairs References Committee, Parliament of Australia, June 2000. [Last accessed Sep. 28, 2015] [External Link]
Nulyarimma V Thompson: Is Genocide A Crime At Common Law In Australia?.
Guilfoyle, Douglas, FedLawRw 1; (2001) 29(1) Federal Law Review 1 [External Link]
Anti-Genocide Bill 1999. (First Reading). A Bill for an Act to give effect to the Convention on the Prevention and Punishment of the Crime of Genocide, and for related purposes.
Australian Government ComLaw, Commonwealth of Australia. [Last accessed Sep. 28, 2015] [External Link]Anti-Genocide Bill 1999 [2004]. (Current Status: Not Proceeding). Parliament of Australia. [Last accessed Sep. 28, 2015]. [External Link] Criminal Code Act 1995. An Act relating to the criminal law. (Act No. 12 of 1995 as amended)
Federal Register of Legislation, Australia, Government. [ENG]. [Last accessed Sep. 28, 2017] [External Link]Criminal Code Act 1995. An Act relating to the criminal law. (Act No. 12 of 1995 as amended)
Australian Government ComLaw, Commonwealth of Australia. [Last accessed Sep. 28, 2015] [External Link]War Crimes Amendment Act 1988. An Act to amend the War Crimes Act 1945. (Act No. 3 of 1989 as made)
Australian Government ComLaw, Commonwealth of Australia. [Last accessed Sep. 28, 2015] [External Link]Geneva Conventions Act 1957. An Act to enable effect to be given to certain Conventions done at Geneva on 12 August 1949 and to a Protocol additional to those Conventions done at Geneva on 10 June 1977, and for related purposes. (Act No. 103 of 1957 as amended)
Australian Government ComLaw, Commonwealth of Australia. [Last accessed Sep. 28, 2015] [External Link]Genocide Convention Act 1949. An Act to approve of Ratification by Australia of the Convention on the Prevention and Punishment of the Crime of Genocide, and for other purposes. (Act No. 27 of 1949 as amended)
Australian Government ComLaw, Commonwealth of Australia. [Last accessed Sep. 28, 2015] [External Link]War Crimes Act 1945. An Act to provide for the Trial and Punishment of War Criminals. (Act No. 48 of 1945 as amended)
Australian Government ComLaw, Commonwealth of Australia. [Last accessed Sep. 28, 2015] [External Link]Bills and Legislation. Parliament of Australia. [External Link] ComLaw. (Collection of Commonwealth legislation. Includes notices from the Commonwealth Government Notices Gazette from 1 October 2012). [External Link] Australasian Legal Information Institute. [External Link]