Wk 7 E-Reading Notes - Case summary: Nulyarimma v Thompson PDF

Preview

Summary

Case summary: Nulyarimma v Thompson...

Description

Wk 7 - Interaction of Domestic & International Law – E-Reading Nulyarimma v Thompson

Determine issue argued, what was decision, and why? (reasoning & arguments by judges to reach conclusions). Then look at the dissenting judgement, determining reasoning for different view. Summary:     



2 separate cases of claims of genocide against Aboriginal people heard on appeal. Significant legal issue of whether genocide is crime under Aus law nullum crimen sine lege: there is no crime unless expressly created by law Published in both the Federal Court Reports and the Australian Law Reports. FCR is the authorised report?? As an appellate court decision, case focuses on consideration & interpretation of rules, principles and policies governing issues before the court (rather than facts, which are determined in lower courts) Mandamus ”we command” is a judicial remedy in the form of an order, from a superior court to any gov subordinate court, corporation, or public authority to do/not do some act which that body is obliged under law to do/not do Municipal law: law specific to particular region (city/country) & the governing bodies within region

Judge’s decisions: 

Wilcox J (20-27) – As a matter of policy, in a criminal case, courts should decline to enforce an international norm in the absence of legislation – Aus has international obligation to prosecute genocide suspet (& that parliam may legislate to ensure obligation is fulfilled) does not mean that w/o legislation, such person can be put on trial for genocide in Aus court. (otherwise IL oblication under customary law has greater domestic consequences than obligation incurred through signing & ratifying convention, which does not affect domestic law until legisl enacted) – For treaty & its obligations to be law, must be incorporated into statute via legisl. This is because Executive has power over making & ratifying traties, whereas the making & alteration of law falls to Parliament ∴ not binding/affecting domestic law until parliament creates legislation – International crime is “a grave offence against internation law which international community recognises as crime & the responsible indib can be punished under IL, even if not punishable under domestic law” – even if correct, not enough to say crime on IL is punishible by DL. – Material difference between incorporation (England, Canada, NZ) and transformation of IL – Aus usually follows transformation theory  Distinction betw recognition by domestic court of existence of IL, and giving effect to it by creation of juris beyond law (reserved for legislature)  Difficult to generalise statement on divere rults of IL. One thing for doemstic courts to be prepared to treat civil lar like doctrine/IL as part of domestic law (whether ‘incorporated’ or ‘transformed’), but another to say that a norm of IL criminalising conduct that is not punishable under DL entitles domestic court to punish offender – If there is a policy issue, criminal case should be resolved by declining (in absence of legislation) to enforce international norm. Stong presumption of nullum crimen sine lege.  If serious criminal conduct, need ground rules – which Courts have juris, procedures, etc





2

– Unable to state much authority, fragments from decisions that are significant, but none v similar – Brennan J: Municipal law cannot go as far to redefine internation law/crime, can only adopt IL as governing law of international crime through adopting same definition of crime as IL Whitlam J – State Courts have no authority for themselves to determine conduct as ‘criminal’ under common law simply because it is now recognised as an international crime w status of jus cogens Merkel J dissenting – offence of genocide is an offence under common law because:...