1999 Australian International Law Journal
THE GENOCIDE CASE*
NULYARIMMA v THOMPSON
Sean peters**
In Nulyarimma v Thompson1 it was alleged in the Federal Court of
Australia that certain politicians, together with the Commonwealth
government, had committed acts of genocide under the 1948 Convention
on the Prevention and Punishment of the Crime of Genocide ("the
Convention") against members of the Australian Aboriginal community.
The case was actually in two separate proceedings, both based on the
premise that the international crime of genocide was part of Australian law
and as such should be recognised by Australian courts.
The two proceedings were Re Thompson2 and Buzzacott v ill:'. Although
they concerned different parties and claims, they were heard together in
Nulyarimma v Thompson due to their commonality. In the Federal Court
the cases were dismissed unanimously. In the decision, two judges (Wilcox
and Whitlam JJ) held that genocide was not a crime under Australian
domestic law. On the other hand, although the third judge (Merkel J)
dissented and held that genocide, an international crime, was part of the
common law of Australia, he agreed with the majority. He held that in the
particular instances, the claims were not sustainable and as such should be
dismissed.
Re Thompson was an appeal by four appellants (including Nulyarimma)
against a decision of Crispin J in the Supreme Court of the Australian
* This contribution was originally a case s u m a r y which now includes some commentary.
**
BA, Grad Dip Info Sci, Diploma in Law. Solicitor of the Supreme Court of New South
Wales.
1
[I9991 Federal Court of Australia 1192, 1 September 1999.
2
Proceedings A5 of 1999.
3
Proceedings S23 of 1999. Instituted by Buzzacott in the South Australian Registry of the
Federal Court of Australia.
1999 Australian lnternatianal Law Journal
Capital erri it or^.^ The appellants claimed that the respondent Thompson,
Registrar of the Australian Capital Territory Magistrate's Court, should
have issued warrants for the arrest of the Prime Minister, his Deputy and
two members of parliament.5 The appellants claimed that the politicians
had committed the offence of genocide by the formulation and support of
the Commonwealth government's native title "Ten Point Plan" which later
became the 1998 Native Title Amendment Act.
Buzzacott v Hill was a motion by two Ministers ("the ~ e s ~ o n d e n t s to
")~
strike out proceedings instituted by Buzzacott in the Federal Court,
Buzzacott had alleged on behalf of the Arabunna Aboriginal People that
the respondents and the Commonwealth of Australia had committed
genocide. He alleged that this occurred when the Australian government
failed to apply to the World Heritage Committee of the United Nations
Economic and Social Council ("UNESCO") to include the lands of the
Arabunna People (which included Lake Eyre) on the World Heritage List
maintained under the 1972 World Heritage on vent ion.^ He did not seek
criminal sanctions but claimed that the failure constituted an act of
genocide. He sought administrative and civil remedies, including a
mandatory injunction to compel the respondents to proceed with the
World Heritage application and damages.
THEDECISION OF THE FEDERALCOURT
Judgment of Wilcox J
Early in his judgment Wilcox J made the following statements:'
1. Anybody who considers Australian history since 1788 will readily
perceive why some people think it appropriate to use the term
"genocide" to describe the conduct of non-indigenes
- towards the
indigenous population. Many indigenous Peoples have been wiped
4
Wadjularbinna Nulyarimma, Isobel Coe, Billie Craigie and Robbie Thorpe v Phillip R
Thompson (1998) 136 Australian Capital Territory Reports 9.
5
They were Independent Senator Harradine and Pauline Hanson, founder and President of
the Pauline Hanson's One Nation Party.
6
They were Robert Hill (Minister for the Environment and Heritage) and Alexander
Downer (Minister for Foreign Affairs).
7
The Convention for the Protection of the World Cultural and Natural Heritage, adopted
by UNESCO on 16 November 1972 and ratified by Australia on 22 August 1974.
Refer paras 4 and 7 respectively.
1999 Australian lnternafional Law Journal
out; chiefly by exotic diseases and the loss of their traditional
lands, but also by the direct killing or removal of individuals,
especially children.
2. Leaving aside for the moment the matter of intent it is possible to
make a case that there has been conduct by non-indigenous people
towards Australian indigenes that falls within at least four of the
categories of behaviour mentioned in the Convention definition of
"genocide": killing members of the group; causing serious bodily
harm or mental harm to members of the group; deliberately
inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part; and forcibly
transferring children of the group to another group.
One "notable" example given by Wilcox J was the rounding up of the
remaining Tasmanian Aboriginals in the 1830s and their removal to
Flinders ~ s l a n dHowever,
.~ on the issue of "intent" as a requirement for the
offence of genocide, he stated: l o
I mention the matter of intent to destroy an ethnical or racial group
because it is something that may have been overlooked by those who
instituted the proceedings now before the Court.
On this point, he was not convinced that such a genocidal intent existed.
However, regardless of whether it existed or not, he held: l 1
I do not think that, in the absence of appropriate legislation, it (the
crime of genocide) is cognisable in an Australian court.
He accepted readily that the prohibition of genocide was a peremptory
norm of customary international law or jus cogens.12 As a peremptory
norm, it could not be derogated from but could be modified only by a
subsequent norm of general international law having the same character.')
Thus this gives rise to a non-derogable obligation by each nation state to
the entire international community, an obligation independent of the
9
At para 12.
lo At para 15.
11
At para 17.
12
It means "compelling law" in Latin.
13
Note Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties.
I Law Journal
Genocide Convention. He accepted that the obligation imposed by
customary international law on each nation state is to extradite or prosecute
any person found within its territory who appears to have committed any of
the acts cited in the definition of genocide as set out in the Convention. He
also approved the constitutional validity of laws based on such obligations.
However, he drew a clear distinction between (1) an international legal
obligation to prosecute or extradite a genocide suspect found within
Australian territory and the permissibility of the Commonwealth
parliament to legislate to ensure that such an obligation was klfilled, and
(2) whether, without legislating to that effect, such a person could be put on
trial for genocide before an Australian court. He stated:l4
If this were the position, it would lead to the curious result that an
international obligation incurred pursuant to customary law has greater
domestic consequences than an obligation incurred, expressly and
voluntarily, by Australia signing and ratifying an international
convention.
He therefore did not share the view of Merkel J that genocide, as one of
several "international crimes" (such as iracy, torture and slavery) attracted
"special status" asjus cogens. He held: P,
If genocide is to be regarded as punishable in Australia, on the basis
that it is an international crime, it must be shown that Australian law
permits that result. There being no relevant statute, that means
Australian common law.
He was of the view that the "contest" between the "incorporation"
approach and the "transformation" approach to international law becoming
part of the domestic law of Australia was in the present context "somewhat
academic".16 He indicated also that domestic courts faced a policy issue in
deciding whether to recognise and enforce a rule of international law.17
However, in criminal cases, the presumption "nullum crimen sine lege "I8
should be applied.
14
At para 20.
lS At para 22.
16
At para 24.
" At para 26.
18
It means "there is no crime unless expressly created by law" in Latin.
1999 Australian International Law Journal
Judgment of Whitlam J
Whitlam J stated that it was accepted by all the parties to the proceedings
that under customary international law there was an international crime of
genocide that had acquired the status of jus cogens. This meant that states
could exercise universal jurisdiction over this crime. l9 However, he did not
agree with the submission of appellants that courts in all states had
jurisdiction over genocide.20 The appellants had relied on the opinion of
Lord Millett in Reg v Bow Street Magistrate, Exp. Pinochet (No. 3)." This
led Whitlam J to examine several seminal international law cases such as
Attorney-General of Israel v E i ~ h r n a n n . ~ ~
Whitlam J stated:23
Nonetheless, counsel for the appellants submit that the status of
genocide as jus cogens compels recognition of genocide as part of the
common law of Australia. This submission strikes formidable statutory
obstacles.
These "formidable statutory obstacles" were chiefly Section 1.1 of the
1995 Criminal Code (Cth) which provided:
The only offences against laws of the Commonwealth are those
offences created by, or under the authority of, this Code or any
other Act.
This provision came into operation on 1 January 1997 and abolished
common law offences under Commonwealth law. As a result, "genocide
1
[could not be recognised as a common law offence under Commonwealth
law."2 Moreover, since the law of the Australian Capital Territory made
no express provision for an offence of genocide, he held that likewise, the
crime of genocide was not an offence in that jurisdiction.
l9 At para 36.
20 At para 49.
*' [1999] 2 Weekly Law Reports 827.
22 (1 962) 36 International Law Reports 5.
23 At para 53.
24 ~t para 54.
Judgment of Merkel J
Whilst agreeing that the two proceedings should be dismissed, Merkel J
dissented on the issue as to whether genocide was an offence under the
common law of Australia. He stated:25
In the present case I have no difficulty in determining that the "end" or
"goal" which the law serves will be better served by treating universal
crimes against humanity as part of the common law in Australia.
Further, a decision to incorporate crimes against humanity, includin
genocide, as part of Australia's municipal law at the end of the 2ot a
century satisfies the criteria of experience, common sense, legal
principle and public policy.
Before arriving at the above conclusion, Merkel J embarked on an
examination of the "incorporation" and "transformation" schools of
thought in several common law jurisdiction^.^^ He concluded:27
It is plain from a survey of the case law in England, Canada, New
Zealand and Australia that the courts have had considerable difficulty
in formulating the principles to be applied in determining when a
court is to give its imprimatur to the "jural quality" of a rule of
international law or put another way, whether a rule of customary
international law has become part of domestic law. However, it
appears that in Australia at least, Dixon J's "source"28 view, which
equates generaIly with what I have loosely described as the common
law adoption approach, holds sway over the incorporation or
legislative adoption approaches,
In deciding the issue of what constituted the "source" view or the common
law adoption approach, he set out six principles that should be applied. He
held:29
@
.
25 At para 185.
26 Begintikg at para 83.
2 7 ~ t p a r 131.
a
28
This was a reference to Dixon J in Chow Hung Ching v The King (1948) 77 Common-
wealth Law Reports 449 at 477 where it was argued that international law was not a part,
but was one of the sources of English Law.
29 At para 132
1999 Australian international Law Journa
1. A recognised prerequisite of the adoption in municipal law of
customary international law is that the doctrine of public
international law has attained the position of general acceptance
by or assent of the community of nations "as a rule of
international conduct, evidenced by international treaties and
conventions, authoritative textbooks, practice and judicial
decisions.": see Compania Naviera Vascongado v SS Cristina
[I9381 AC 485 at 497 per Lord Macmillan. Once a rule has been
established as having the general acceptance of nation States in
the manner stated by Lord Macmillan it will have satisfied the
"assent" or "acceptance" of nations criteria of Cockburn CJ in
Keyn and Lord Atkin in Chung Chi Cheung and will be given "the
force of law within the realm": see Lord Macmillan at 497.
2. The rule must not only be established to be one which has general
acceptance but the court must also consider whether the rule is to
be treated as having been adopted or "received into, and so
become a source of English law": see Holdsworth at 268 and
Chow Hung Ching at 477 per Dixon J.
3. A rule will be adopted or received into, and so a source of,
domestic law if it is "not inconsistent with rules enacted by
statutes or finally declared by [the courts]": Chung Chi Cheung (at
168) per Lord Atkin. Plainly, international law cannot be received
if it is inconsistent with a rule enacted by statute. However, the
position is less clear with a rule that might be inconsistent with the
common law. To the extent that international law is to be received
into domestic law, it will have necessarily altered or modified the
common law and, to that extent, might be said to be inconsistent
with it. Thus, in my view a strict test of inconsistency could not
have been intended. I would accept Sawer's observation that
inconsistency with the common law (that is, the rules declared by
the courts) means "inconsistency with the general policies of our
law, or lack of logical congruence with its principles": see Sawer
"Australian Constitutional Law in Relation to International
Relations and International Law and Australian Law" in
O'Connell International Law in Australia 1965 at 50 and Mason at
215.
4. A rule of customary international law is to be adopted and
received unless it is determined to be inconsistent with, and
therefore "conflicts" with, domestic law in the sense explained
above. In such circumstances no effect can be given to it without
legislation to change the law by the enactment of the rule of
customary international law as law: see Keyn at 202-203 per
Cockburn CJ and Holdsworth at 270-271. This approach
subordinates rules of customary international law to domestic law
thereby avoiding a M a m e n t a l difficulty of the incorporation
approach which, by requiring the common law to invariably
change to accord with rules of international law, subordinates the
common law to customary international law. In my view, to do so
amounts to re-instating Blackstone's view which I regard Lord
&in and Dixon J as having rejected. I do not regard Trendtex
Trading as offering a sufficient foundation for the re-instatement
of Blackstone's incorporation view. I agree with Mason's
observation (at 214-215) that in Trendtex Trading there would
have been no great difficulty in adjusting the doctrine of precedent
to meet the special case of a change in a rule of international law
being received into domestic law. Thus, whilst the result in
Trendtex Trading is not in dispute, it could equally have been
arrived at by the "source" view that is, the adoption of the current
d e s of customary international law to the extent their operation is
not inconsistent with municipal law. Indeed that was, in part, the
approach taken by Shaw LJ in Trendtex Trading.
The rules of customary international law, once adopted or
received into domestic law have the "force of law" in the sense of
being treated as having modified or altered the common law. The
decision of the court to adopt and receive a rule of customary
international law is declaratory as to what the common law is.
Upon a court so declaring the common law to be different from
what it was earlier perceived to be effect will be given to the
declaration "as truly representing the common law": see Western
Australia v The Commonwealth (1995) 183 CLR 373 at 485. A
rule, once so declared, is applicable to both civil and criminal
proceedings in a domestic court: see Keyn, Chung Chi Cheung
and Chow Hung Ching.
6 . As Trendtex Trading demonstrates international law evolves and
changes from time to time. However, unlike the common law, the
evolution of, and change, in international law is established by
evidence and other appropriate material. Thus, it may be that in
certain instances the adoption will only be as from the date the
particular rule of customary law has been established.
Merkel J proceeded to consider if legislation was necessary for universal
crimes to be adopted as crimes under municipal law. In relation to non-
universal international crimes, such as drug trafficking, environmental
protection and the taking of civilian hostages, the judge was of the view
that a statutory vesting of jurisdiction in an Australian court was the only
basis upon which jurisdiction could vest. On universal international crimes,
he stated:30
It is clear that under customary international law the jurisdiction to
prosecute in respect of universal crimes vests in nation states, it being
a matter for the legal system of the particular state how the jurisdiction
is to be exercised.
[I]t is significant that under international law the duties in respect of
universal crimes arise as non-derogable obligations of all states. Thus,
save as to the question of prosecution or extradition there is no
discretion as to whether to fulfil the obligation. Therefore a vesting
under the common law, rather than by a discretionary exercise of
legislative power, is consistent with the principles of international law.
On whether genocide was inconsistent with municipal law, he disagreed
that section 1.1 of the 1995 Criminal Code (Cth) posed an insurmountable
barrier. He stated:32
The section provides that the only offences against "laws of the
Commonwealth" are those offences created by, or under the authority
of, the Code or any other Commonwealth law. However, it is plain that
30
At para 154.
31
At para 1 56.
32 At para 163.
1999 Australian international Law Journal
the reference in the Code to "laws of the Commonwealth" refers to
Commonwealth statutory and common law offences and not to crimes
arising under customary international law or the common law
generally.
On whether the courts would be creating a criminal offence, he was of the
view that the court would merely be "adopting" rather than "creating" a
new offence. He stated:33
It would be anomalous for the Municipal Courts not to continue their
longstanding role of recognising, by adoption, the changes and
developments in international law. Accordingly, in my view there is no
inconsistency involved in the common law continuing to recognise the
historical, and increasingly important, role of customary international
law, always of course, subject to the legislature's power to abrogate,
vary or confirm the operation of the common law of Australia in that
regard.
Notwithstanding that he was of the opinion that the earlier proceedings in
Re Thompson had been wrong in law in not finding that genocide was a
crime cognisable in Australian courts, he maintained that the relief sought
by the appellants should be refused. His reason was that it would be
"htile" for the case to continue as there were "obviously fundamental
difficulties confronting the appellants."34 Such difficulties inc~uded:~'
1. Section 16 of the 1987 Parliamentary Privileges Act (Cth),
reproducing in part Article 9(1) of the 1688 Bill of Rights (UK),
prohibited the court from inquiring into the propriety of the exercise
of legislative power conferred on parliament by the Constitution or
related parliamentary proceedings. Furthermore, members of
parliament could not commit a crime in speaking to and voting on a
bill.
2. It was of crucial importance that elected members of Parliament be
free to act in the manner they considered to be in the national
interest and without fear of punishment.
33 para 181.
~t
34
At para 193.
35 Ibid.
7999 Australian International Law Journal
These principles protected members of parliament from prosecution both
from introducing the Bill referred to above and for failure to give effect to
the provisions of the World Heritage Convention. As such, the judge was
not convinced that the "Ten Point Plan" or the resulting 1998 Native Title
Amendment Act (Cth) constituted the crime of genocide. He observed:36
However, before departing from this aspect of the case it is desirable
that I make certain observations as to the dangers of demeaning what
is involved in the international crime of genocide. Undoubtedly, a
great deal of conduct engaged in by governments is genuinely believed
by those affected by it to be deeply offensive, and in many instances
harmful. However, deep offence or even substantial harm to particular
groups, including indigenous people, in the community resulting from
government conduct is not genocide law.
Whilst cautious to strike out the proceedings of Buzzacott v Hill, he
believed that the claim in relation to the World Heritage Convention and
the resulting 1983 World Heritage Properties Conservation Act (Cth) did
not confer any justiciable right upon an individual. Consequently, the
particular proceedings in the present case were "misc~nceived"~~ and
accordingly he dismissed the proceedings. On the other hand, it should be
noted that he did not rule out the possibility of other proceedings, thou h
such proceedings would require, "radical change.. .and different parties." * B
It did not take long for other allegations of genocide to surface in
Australian courts. In Surnner v United Kingdom of Great Britain and ors39
the plaintiff, Darrell Surnner, unsuccessfully attempted to move the
Supreme Court of South Australia to grant an interlocutory injunction to
stop the defendants from commencing construction of the Hindmarsh
Island ~ r i d ~ e . ~ '
36 At para 199.
37 At para 233.
38
At para 234.
39
[I9991 South Australian Supreme Court 456, Proceedings SCGRG-99-1257, Judgment
delivered on 27 October 1999.
40
See Kartinyeri v Commonwealth (1998) 72 Australian Law Journal Reports 722 (more
commonly known as "the Hindmarsh Island Bridge Act case") which answered in the
affirmative that the 1997 Hindmarsh Island Bridge Act (Cth) was supported by section
One of the arguments raised in support of the application before Nyland J
in Surnlner was that since there were no Australian laws on genocide, the
applicable law should be that of the United Kingdom, namely, the 1969
Genocide Act (UK). In support of this contention, the plaintiff submitted:"
Where there has been a deliberate rehsal and failure to pass genocide
legislation protecting citizens who have a history of involvement with
the United Kingdom, the subjects of the British Kingdom formally,
then the extraterritorial jurisdiction of the United Kingdom Act is
attracted, and attracted as the nearest and most appropriate Member of
State of the United Nations to provide protection against what the
preamble to genocide convention calls a scourge on mankind.
We say that, ordinarily, citizens of a Member State of the UN can avail
themselves of the protection against genocide encompassed by the
Member State legislation.
Where such legislation is absent, and intentionally absent, then the
Ngarrindjeri [people] are entitled to turn to the people who have a
fiduciary obligation towards them, namely the United Kingdom,
because they first invaded the Ngarrindjeri land and they can avail
themselves to the protection of the United Kingdom.
We say there is sufficient connection between the Ngarrindjeri and the
United Kingdom to, where the State of South Australia, (sic) which
was subsequently the alleged successor in title, and where the
Commonwealth of Australia, which have failed to - we say failed
deliberately - to pass a Genocide Act - which the State of South
Australia can do, they have sovereign power, they have failed to do
that - and the Ngarrindjeri can turnto the next most likely country and
Member State of that, the UK.
We say the history of the Ngarrindjeri is so inexplicably tied up with
the history of the UK on that point, ie genocide, that the jurisdiction
can be attracted.
Sl(xxvi), the "race power" of the Constitution.
41
At para 27.
1999 Australian International Law Journal
However, Nyland J was not persuaded that he could exercise any
jurisdiction pursuant to the United Kingdom legislation. Referring to
Nulyarimma v Thompson he stated:42
In my view, that decision represents the current state of the law on the .
topic of genocide in Australia.
Accordingly, the Plaintiffs application for an interlocutory injunction was
refused. An appea$ to the Full Court of the Supreme Court of South
Australia from this decision was also unsuccessfil. An application to the
High Court of Australia before Gurnrnow J~~ seeking an order for
expedition of a special leave application and an interim injunction
restraining further construction was also unsuccessful.
During submissions Gummow J took objection to the continued use of the
term "white court". When dealing with the argument on the 1969 Genocide
Act (UK) he stated:45
It is the Act of a foreign country. It is a statute of a foreign country. I
am not surprised no one is enthused about applying it. One of the
arguments raised in support of the application before Nyland J in
Sumner was that since there were no Australian laws on genocide, the
applicable law should be that of the United Kingdom, namely, the 1969
Genocide Act (UK).
42
At para 32.
43
Sumner v United Kingdom of Great Britain and ors [I9991 South Australian Supreme
Court 462, Proceedings SCGRG-99-1257; Judgment delivered 2 November 1999.
44
Sumner v United Kingdom of Great Britain and ors A3411999 (1 5 November 1999).
45
The transcript of the application is available at [Link]
transcripts/l999/A34/[Link]
