A majority of the Court held that it was unnecessary to answer the substantive questions stated in the the case in order to determine the plaintiff's entitlement to relief. The basis was that s 268.121(2) of the Criminal Code (Cth) precludes private prosecution of an offence against Div 268 of the Criminal Code.
Under s 13(a) of the Crimes Act 1914 (Cth) any person may institute proceedings for the commitment for trial of a person in respect of an indictable offence against the law of the Commonwealth, unless the contrary intention appears in the Act creating the offence. Section 268.121(1) of the Criminal Code provides that proceedings for an offence against Div 268 of the Criminal Code must not be commenced without the written consent of the Attorney-General of the Commonwealth. Section 268.121(2) of the Criminal Code provides that an offence against Div 268 "may only be prosecuted in the name of the Attorney-General".
On 16 March 2018 Taylor lodged a charge-sheet and draft summons at the Melbourne Magistrates' Court alleging that Aung San Suu Kyi (Minister for the Office of the President and Foreign Minister of the Republic of the Union of Myanmar) had committed a crime against humanity in contravention of s 268.11 of the Criminal Code, a Commonwealth indictable offence. The offence appears in Div 268 of the Criminal Code and is unable to be heard and determined summarily.
The lodgement purportedly relied on s 13(a) of the Crimes Act.
On the same day Taylor requested the Commonwealth Attorney-General's consent under s 268.121(1) of the Criminal Code to the commencement of the prosecution. The Attorney-General did not consent. On 23 March 2018 Taylor accordling commenced a proceeding against the Attorney-General in the original jurisdiction of the High Court, seeking to quash the decision not to consent to the commencement of the prosecution and to compel the Attorney-General to reconsider the request for consent.
In June this year a majority of the Court held that, by providing that an offence against Div 268 of the Criminal Code "may only be prosecuted in the name of the Attorney‑General", s 268.121(2) of the Criminal Code provides a contrary intention for the purpose of s 13(a) of the Crimes Act so as to preclude the private prosecution of an offence against that Division.
A majority of the Court held that the Attorney‑General's decision to refuse consent to the plaintiff's proposed prosecution of Suu Kyi was the only decision legally open. As a result the relief sought by the plaintiff could only be refused.
Edelman J states
I would have allowed this special case to progress to further hearing past the preliminary issue. A relator prosecution brought in the name of the Attorney-General, and controlled by the Attorney-General, is a prosecution "in the name of the Attorney-General". The particular international context in which Div 268 was enacted is consistent with this conclusion.The specific questions and answers were
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: the declaration made by Australia upon ratifying the Rome Statute; Australia's treaty obligations under the Rome Statute; and/or 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: the declaration made by Australia upon ratifying the Rome Statute; Australia's treaty obligations under the Rome Statute; the enactment of the International Criminal Court Act and the International Criminal Court (Consequential Amendments) Act; and/or 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.
