HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJDANIEL TAYLOR PLAINTIFF
AND
ATTORNEY-GENERAL OF THE
COMMONWEALTH DEFENDANTTaylor v Attorney-General (Cth)
[2019] HCA 30
Date of Order: 19 June 2019
Date of Publication of Reasons: 11 September 2019M36/2018
ORDER
The questions stated in the revised special case filed on 26 November 2018 be answered as follows:
1.Is the defendant's decision to refuse to consent under s 268.121 of the Criminal Code (Cth) to the prosecution of Ms Suu Kyi insusceptible of judicial review on the grounds raised in the amended application?
Answer:Unnecessary to answer.
2.If "no" to question 1, did the defendant make a jurisdictional error in refusing consent under s 268.121 of the Criminal Code to the prosecution of Ms Suu Kyi on the ground that Australia was obliged under customary international law to afford an incumbent foreign minister absolute immunity from Australia's domestic criminal jurisdiction (the asserted immunity) for one or more of the following reasons:
a.Under customary international law as at the date of the defendant's decision, the asserted immunity did not apply in a
domestic criminal prosecution in respect of crimes defined in the Rome Statute?
b.By reason of:
i. the declaration made by Australia upon ratifying the Rome Statute;
ii. Australia's treaty obligations under the Rome Statute; and/or
iii. the enactment of the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth),
the obligations assumed by Australia under international law were such that the defendant was not entitled to refuse, on the basis of the asserted immunity, to consent to the domestic prosecution of Ms Suu Kyi in respect of crimes defined in the Rome Statute?
c.By reason of:
i. the declaration made by Australia upon ratifying the Rome Statute;
ii. Australia's treaty obligations under the Rome Statute;
iii. the enactment of the International Criminal Court Act and the International Criminal Court (Consequential Amendments) Act; and/or
iv. the Diplomatic Privileges and Immunities Act 1967 (Cth), the Consular Privileges and Immunities Act 1972 (Cth) and the Foreign States Immunities Act 1985 (Cth),
the defendant was not entitled under Australian domestic law to refuse, on the basis of the asserted immunity, to consent to the domestic prosecution of Ms Suu Kyi in respect of crimes defined in the Rome Statute?
Answer:Does not arise.
3.If "no" to question 1, did the defendant make a jurisdictional error in refusing consent to the prosecution of Ms Suu Kyi on the ground that he failed to afford the plaintiff procedural fairness?
Answer:Does not arise.
4.What relief, if any, should be granted?
Answer:None. The amended application should be dismissed with costs.
5. Who should bear the costs of the special case?
Answer:The plaintiff.
Representation
R Merkel QC with R J Sharp and M A J Isobel for the plaintiff (instructed by Human Rights for All Pty Ltd)
S P Donaghue QC, Solicitor-General of the Commonwealth,…
Keep reading for free
Create a free CaseChat account to read Taylor v Attorney-General (Cth) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] HCA 30
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether section 268.121(2) of the Criminal Code, which states that an offence against Division 268 "may only be prosecuted in the name of the Attorney-General," expressed a contrary intention for the purposes of section 13(a) of the Crimes Act, thereby precluding a private prosecution. This question arose in the context of the plaintiff's attempt to prosecute an individual for alleged crimes against humanity.
A majority of the High Court determined that section 268.121(2) did indeed express a contrary intention, thereby precluding a private prosecution. The Court reasoned that the phrase "may only be prosecuted in the name of the Attorney-General" was a clear and unambiguous statutory command that limited the ability to prosecute such offences exclusively to the Attorney-General. This specific statutory language was found to override the general right to institute proceedings conferred by section 13(a) of the Crimes Act. The Court considered the legislative history and the plain meaning of the words used, concluding that the intention was to vest the exclusive power to prosecute offences under Division 268 in the Attorney-General.
The High Court answered the questions stated in the special case. The Court dismissed the plaintiff's amended application and ordered that the plaintiff bear the costs of the special case.
Orders
Orders of the court
The questions stated in the revised special case filed on 26 November 2018 be answered as follows:
1. Is the defendant's decision to refuse to consent under s 268.121 of the Criminal Code (Cth) to the prosecution of Ms Suu Kyi insusceptible of judicial review on the grounds raised in the amended application?
Answer: Unnecessary to answer.
2. If "no" to question 1, did the defendant make a jurisdictional error in refusing consent under s 268.121 of the Criminal Code to the prosecution of Ms Suu Kyi on the ground that Australia was obliged under customary international law to afford an incumbent foreign minister absolute immunity from Australia's domestic criminal jurisdiction (the asserted immunity) for one or more of the following reasons:
a. Under customary international law as at the date of the defendant's decision, the asserted immunity did not apply in a
domestic criminal prosecution in respect of crimes defined in the Rome Statute?
b. By reason of:
i. the declaration made by Australia upon ratifying the Rome Statute;
ii. Australia's treaty obligations under the Rome Statute; and/or
iii. the enactment of the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth),
the obligations assumed by Australia under international law were such that the defendant was not entitled to refuse, on the basis of the asserted immunity, to consent to the domestic prosecution of Ms Suu Kyi in respect of crimes defined in the Rome Statute?
c. By reason of:
i. the declaration made by Australia upon ratifying the Rome Statute;
ii. Australia's treaty obligations under the Rome Statute;
iii. the enactment of the International Criminal Court Act and the International Criminal Court (Consequential Amendments) Act; and/or
iv. the Diplomatic Privileges and Immunities Act 1967 (Cth), the Consular Privileges and Immunities Act 1972 (Cth) and the Foreign States Immunities Act 1985 (Cth),
the defendant was not entitled under Australian domestic law to refuse, on the basis of the asserted immunity, to consent to the domestic prosecution of Ms Suu Kyi in respect of crimes defined in the Rome Statute?
Answer: Does not arise.
3. If "no" to question 1, did the defendant make a jurisdictional error in refusing consent to the prosecution of Ms Suu Kyi on the ground that he failed to afford the plaintiff procedural fairness?
Answer: Does not arise.
4. What relief, if any, should be granted?
Answer: None. The amended application should be dismissed with costs.
5. Who should bear the costs of the special case?
Answer: The plaintiff.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, BELL, GAGELER AND KEANE JJ, NETTLE AND GORDON JJ
Full text does not contain this section.