determine whether the conduct was criminal at international law at that time in order to determine whether the legislation was truly retrospective. 9 they concluded that the relevant conduct was not criminalised in international law at the time it occurred and thus the legislation was retroactive in nature lorth mentioning, too, are some obiter comments of Deane J to the effect that, if Australia was participating in the establishment and functioning of an international tribunal for the trial and punishment of international crimes, Ch Ill of the Constitution would be inapplicable because the judicial power of the international community rather than that of the commonwealth, would be involved. In addition he foreshadowed a possible further exception to the applicability of ch Ill, where a local tribunal is vested with jurisdiction in relation to an alleged crime against international law: It may be arguable that, in such a case, the judicial power of the Commonwealth is not involved for so long as the alleged crime against nternational law is made punishable as such in the local court. Alternatively, at least where violations of the laws and customs of war are alone involved analogy with the disciplinary powers of military tribunals and largely pragmatic standing outside Ch// 3 bine to dictate recognition of a special jurisdiction This comment on the potential for international law to take a criminal prosecution outside the protection afforded by ch Ill is surprising as Deane J has been one of the leaders of the Court in developing Ch Ill as a protective mechanism, particularly in the area of military courts-martial. These comments will be of particular interest if, as expected, Australia ratifies the Statute of the International Criminal Court id627-8,631,699-700,707 30bd627 See, eg, Re Tyler; Ex parte Foley( 1994)181 CLR 18: Re Nolan: EX parte Young(1991)172 CLR 460; Re Tracey; Ex parte Ryan(1989)166 CLR 518determine whether the conduct was criminal at international law at that time, in order to determine whether the legislation was truly retrospective.29 They concluded that the relevant conduct was not criminalised in international law at the time it occurred, and thus the legislation was retroactive in nature. Worth mentioning, too, are some obiter comments of Deane J to the effect that, if Australia was participating in the establishment and functioning of an international tribunal for the trial and punishment of international crimes, Ch III of the Constitution would be inapplicable because the judicial power of the international community, rather than that of the Commonwealth, would be involved.30 In addition, he foreshadowed a possible further exception to the applicability of Ch III, where a local tribunal is vested with jurisdiction in relation to an alleged crime against international law: It may be arguable that, in such a case, the judicial power of the Commonwealth is not involved for so long as the alleged crime against international law is made punishable as such in the local court. Alternatively, at least where violations of the laws and customs of war are alone involved, analogy with the disciplinary powers of military tribunals and largely pragmatic considerations might combine to dictate recognition of a special jurisdiction standing outside Ch III.31 This comment on the potential for international law to take a criminal prosecution outside the protection afforded by Ch III is surprising, as Deane J has been one of the leaders of the Court in developing Ch III as a protective mechanism, particularly in the area of military courts-martial.32 These comments will be of particular interest if, as expected, Australia ratifies the Statute of the International Criminal Court. 29 Ibid 627-8, 631, 699-700, 707. 30 Ibid 627. 31 Ibid. 32 See, eg, Re Tyler; Ex parte Foley (1994) 181 CLR 18; Re Nolan; Ex parte Young (1991) 172 CLR 460; Re Tracey; Ex parte Ryan (1989) 166 CLR 518. 7