Nulyarimma v. Thompson: Is Genocide a Crime at Common Law in Australia?
Federal Law Review, Vol. 29, pp. 1-36, 2001
Posted: 19 Apr 2010
Date Written: 2001
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. That act did not make genocide a crime in Australia – that was to be done once the Convention came into force. While treaties only have effect in Australia if enacted by statute, the position of customary international law is uncertain.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 (known as the "incorporation doctrine"). If this principle were recognised, genocide could be a common law crime. However, the argument arises 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 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.
Keywords: international law, common law, genocide, Australia
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