Australia
1. Constitutional structure and position of IHL in domestic law
The High Court of Australia has consistently held that treaties do not become part of Australian domestic law in the absence of federal legislation to implement them (Simsek v. McPhee (1980); Koowarta v. Bjelke Petersen (1981); Tasmania v. Commonwealth (1982)). The Federal Government has the competence to enact legislation pursuant to a list of powers enumerated in Section 51 of the Australian Constitution. In particular, Section 51(xxix) allows the Federal Parliament to enact laws with respect to “external affairs”, and this power has been interpreted to include any treaty to which Australia has become a party.
In the more recent case of Minister for Immigration v Teoh (1995)128 Australian Law Reports 353, the High Court decided that ratification of a treaty by Australia in the absence of implementing legislation constitutes a positive statement by the Executive which gives rise to a legitimate expectation by Australians that the Executive will act in accordance with the treaty. The High Court explicitly stated that this decision was not an attempt to usurp the primacy of Parliament and that if the Australian Parliament enacted legislation that was inconsistent with treaty obligations the former would take precedence. Furthermore, the Court was at pains to point out that the decision did not purport to make treaties a part of Australian law, in the sense that they might create justiciable rights, for example, in the absence of implementing legislation. It merely recognised that ratification of a treaty is a sufficiently positive act to influence Australian law pending parliamentary action to enact legislation. The Government reacted negatively to this judgment. A Joint Statement by the Minister for Foreign Affairs and the Attorney-General (10 May 1995) and the Administrative Decisions (Effect of International Instruments) Bill 1997 both state that the fact of Australia entering into a treaty does not raise such a legitimate expectation. It should be noted that this Bill has yet to be enacted by the Federal Parliament.
Australia ratified the four Geneva Conventions of 1949 on 14 October 1958 and ratified Additional Protocols I and II of 1977 on 21 June 1991. Australia accepted the competence of the International Fact-Finding Commission under Article 90 of Protocol I on 23 September 1992.
Australia’s obligations under the four Geneva Conventions have been incorporated into Australian law by the Geneva Conventions Act 1957. This Act was amended in 1991 after Australia ratified the Additional Protocols of 1977. Australia has also enacted other legislation to implement obligations pursuant to arms control and disarmament treaties and to provide for the prosecution of war crimes in certain limited circumstances.
The four Geneva Conventions were published in the Official Gazette as schedules to the Geneva Conventions Act 1957. Additional Protocol I was published in the Gazette as schedule to the Geneva Conventions Amendment Act 1991.
2. Bibliography
- M. ALLARS, "One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh’s Case and the Internationalisation of Administrative Law", Sydney Law Review, 1995, p. 204.
- "Genocide and Australian Law", Aboriginal Law Bulletin, Vol. 70, 1994, p. 6 (No author given).
- M. KIRBY, "War Crimes Prosecution - an Australian Update", Australian Bar Review, Vol. 10, 1993, p. 109.
- R. J. MATHEWS and T. L. H. McCORMACK, "Australian Security, Weapons of Mass Destruction and International Law", in A. Bergin and S. Scott (eds), International Law and Australian Security, Australian Defence Studies Centre, Canberra, 1997, p. 125.
- T. L. H. McCORMACK, "Selective Reaction to Atrocity: War Crimes and the Development of International Criminal Law", Albany Law Review, Vol. 60, 1997, p. 681.
- G. McGINLEY, "The Status of Treaties in Australian Municipal Law: The Principle of Walker v Baird Reconsidered", Adelaide Law Review, Vol. 12, 1990, p. 367.
- J. THOMSON, "Is it a Mess ? The High Court and the War Crimes Case", University of Western Australia Law Review, Vol. 22, 1992, p. 197.
- G. TRIGGS, "Australia’s War Crimes Trials: All Pity Choked", in T.L.H. McCormack and G.J. Simpson (eds.), The Law of War Crimes: National and International Approaches, Netherlands, Kluwer Law International, 1997, p. 123.
- K. WALKER and P. MATHEW, "Minister for Immigration v Ah Hin Teoh", Melbourne University Law Review, Vol. 20, 1995, p. 236.
- A. D. MITCHELL, " Is genocide a crime unknown to Australian Law: Nulyarimma v. Thompson", Yearbook of International Humanitarian Law, Vol.3, 2000, pp.362-383.
