Abstract
In a majority of six to one, the High Court in Moti v The Queen concluded that the act of state doctrine does not preclude findings as to the legality of the conduct of a foreign government, where such a finding is determinative of an abuse of process. The decision is a welcome addition to existing international jurisprudence on due process rights in prosecutions of extraterritorial conduct. In turn, it is a reminder that operating extraterritorially does not mean operating without accountability.
Highlights
In a majority of six to one, the High Court in Moti v The Queen concluded that the act of state doctrine does not preclude findings as to the legality of the conduct of a foreign government, where such a finding is determinative of an abuse of process
In Moti v The Queen,[1] the High Court of Australia considered whether proceedings can be maintained against a person who has not properly been brought within the jurisdiction by regular means, or whether such proceedings are an abuse of process
This article will conclude the findings of the High Court in Moti v The Queen are a welcome addition to jurisprudence on procedural irregularities in the prosecution of transnational crime
Summary
In Moti v The Queen,[1] the High Court of Australia considered whether proceedings can be maintained against a person who has not properly been brought within the jurisdiction by regular means, or whether such proceedings are an abuse of process. The High Court in XYZ v Commonwealth[2] confirmed that the Commonwealth may rely on section 51(xxix) of the Constitution of Australia to assert extraterritorial criminal jurisdiction over Australian citizens. Such assertions are permitted under international law by virtue of the active nationality principle.[3] useful in fighting transnational crime, assertions of extraterritorial criminal jurisdiction are sometimes overly politicised, and vulnerable to abuses of process.[4] the decision in Moti v The Queen has implications for the prosecution of offences for conduct occurring extraterritorially, and is a timely reminder for state officials and prosecutors that operating extraterritorially does not mean operating without accountability. Arm of the Law Undermine the Rule of Law?’ (2012) 13(1) Melbourne Journal of International Law, 122
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