Taylor v Attorney-General (Cth) [2019] HCA 30

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

DANIEL TAYLOR PLAINTIFF

AND

ATTORNEY-GENERAL OF THE COMMONWEALTH DEFENDANT

Taylor v Attorney-General (Cth) [2019] HCA 30 Date of Order: 19 June 2019 Date of Publication of Reasons: 11 September 2019 M36/2018

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?