Magistrates’ Court refused to issue proceeding on basis that no proper source of law had been particularised and such a proceeding would be an abuse of process
Quick Take
1The criminal jurisdiction of the Magistrates' Court of Victoria, being conferred by statute, does not encompass criminal offences under the sovereign laws of Australia's First Peoples, and no statutory provision expressly or impliedly confers such jurisdiction.
2Genocide is not a common law offence in Australia: the majority reasoning in Nulyarimma v Thompson is not plainly wrong, and the enactment of Division 268 of the Criminal Code — which creates genocide offences wholly co-extensive with the Genocide Convention and Rome Statute — precludes the co-existence of a parallel common law offence of genocide arising from customary international law, notwithstanding the saving provision in s 268.120.
3The requirement in s 268.121 of the Criminal Code that genocide prosecutions be commenced only with the written consent of and in the name of the Commonwealth Attorney-General is a regular exercise of the external affairs power and does not contravene s 10 of the Racial Discrimination Act 1975 (Cth), as the prosecutorial restriction applies universally regardless of race.
