Kilduff, Peter; Lofgren, Neil --- "Genocide and Australian Law" [1994] AboriginalLawB 50; (1994) 3(70) Aboriginal Law Bulletin 6
Genocide and Australian Law
by Neil Lofgren and Peter Kilduff
Recent comments in Coe (on behalf of the Wiradjuri tribe) v The Commonwealth [1993] HCA 42; (1993) 118 ALR 193 represent the first discussion by a justice of the High Court of the legal implications of genocide against Aboriginal and Torres Strait Islander people. These statements were made in the context of a native title land claim which specifically sought a declaration in relation to genocide that:
... the plaintiff and the Wiradjuri nation and people are entitled to reparations for acts of genocide and other crimes against humanity inflicted upon [them].[1]
The Chief justice ruled that the paragraphs in the statement of claim specifically dealing with genocide failed both to adequately plead the grounds for relief and to identify the provisions or principles of law applicable when the alleged acts were committed. The entire statement of claim was subsequently struck out because it amounted to an abuse of process, and leave was granted for the plaintiff to file and serve an amended statement of claim.[2] It has been suggested that the Chief justice refrained from criticising the "inflammatory" language in the statement of claim because he did not wish to appear to disapprove of the “(self-described) emotional diction of Deane and Gaudron JJ in Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 120”.[3] This dicta may have been inspired by that of Murphy J in Tasmania v The Commonwealth (Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 180 about "unprovoked aggression, conquest, pillage, rape, brutalisation [and] attempted genocide and systematic and unsystematic destruction of their culture" in the history of Aboriginal affairs.[4]
The Coe case was also referred to in a media release by the Hon. Wayne Goss MLA, Premier of Queensland, in relation to instructions by his Cabinet to the Crown Solicitor "to report on what action could be taken to strike out outstanding native title land claims in Queensland".[5] Mr Goss argued that the judgment gave "a powerful legal precedent to strike out most of the remaining Queensland matters", and that “by moving to strike out the more ridiculous claims [the Government] can make substantial savings”.[6]
The Premier also asserted that "the wording of many of the claims was just plain offensive" because like the Coe case they "... referred to genocide, rape, kidnapping, pillage, murder, and the destruction of culture".[7] Mr Goss also declared that:
... such claims were offensive to ordinary Australians and did not deserve to be let stand in the courts ... that's why we're going to act swiftly to get this nonsense off the books.[8]
In a subsequent native title land claim case in the Supreme Court of Queensland, Dowsett J ordered that the name of Premier Goss be removed from a list of defendants because he could well understand the Premier “being offended at being named as a mass murderer”.[9]
Irrespective of whether "inflammatory" language is used in statements of claim, this article demonstrates that genocide is a legitimate human rights matter for examination by the judiciary, and examines various grounds for relief and some of the issues raised in instituting private criminal prosecutions or civil proceedings for alleged acts of genocide.
International treaty law obligations
The United Nations Convention on the Prevention and Punishment of the Crime of Genocide [1951] ATS 2 (the "Convention") declares genocide a crime under international law (whether committed in time of peace or war) and it imposes an obligation on all parties to ensure that genocide is prevented and punished (Article 1). The Convention entered into force in relation to Australia on 12 January 1951.
Article II of the Convention defines genocide as an act that is committed with the intention to destroy, in whole or in part, a national, ethnic, racial or religious group, which involves[10]:
(a) killing members of the group; or
(b) causing serious bodily or mental harm to members of the group; or
(c) deliberately inflicting conditions of life calculated to bring about its physical
destruction in whole or in part; or
(d) imposing measures intended to prevent births within the group; or
(e) forcibly transferring children of the group to another group.
Australia has breached its commitments under the Convention by failing to introduce legislation making the obligations specified in it enforceable in municipal courts (Article V). Australia's Genocide Convention Act 1949 (Cth) ss4 and 5 merely approved ratification of the Convention and extended its provisions to Australia's external territories. This legislative response contrasts with that of Great Britain whose Genocide Act 1969 (UK) (sl(2)(a)) includes sentences ranging from life imprisonment for killings, to 14 years imprisonment for other acts of genocide (sl(2)(b)). The British legislation also extends the crime of genocide to its naval and military forces (ss6 and 7) and makes it an extraditable offence (s2).
It should also be noted that the common law recognises that an international treaty to which Australia is a party does not give rise to rights under municipal law in the absence of legislation carrying the treaty into effect (see Simsek v Macphee [1982] HCA 7; (1982) 148 CLR 636 at 642; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 298).
Criminal law obstacles
In the absence of legislation making genocide a statute-based indictable criminal offence it may be difficult to institute apublic or private criminal prosecution (see Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1) in municipal courts for alleged acts of genocide. However, the prevention and punishment of the crime of genocide is also a pre-emptory norm of customary international law and as such may form part of the common law.[11]
An Advisory Opinion by the International Court of justice described the principles underlying the Convention as "priniciples which are recognised by civilised nations as binding on States, even without any conventional obligation" (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide [1951] ICJ 15 at 23). Therefore, the common law may recognise that the punishment of genocide is enforceable in municipal courts, even in the absence of legislation carrying the Convention into effect (see Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 220; Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 at 553-558).
A prosecutor may also have difficulty in identifying a defendant who can be prosecuted. For example, if the Crown is the defendant, it cannot be held criminally liable at common law (see Cain v Doyle [1946] HCA 38; (1946) 72 CLR 409; Canadian Broadcasting Corporation v Attorney-General (Ontario) [1959] SCR 188).[12] Consequently, the Crown has effective immunity from criminal prosecution for genocide. This clearly breaches Article IV of the Convention, which states:
Persons committing genocide ... shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
An obstacle that may arise in the absence of legislation proscribing genocide is to determine what the remedy would be. For example, should the remedy be imprisonment for the perpetrators (as provided for by the British Genocide Act 1969 (UK) ssl(2)(a) and (b)), or compensation for those who have suffered from acts of genocide? Another option may be to seek an equitable remedy such as a declaration (see High Court Rules (Cth) o.26 r.19) that a breach of the Convention occurred [13]
In conclusion, the complex obstacles arising from the institution of a private criminal prosecution may be particularly difficult to surmount, especially in the absence of legislation making genocide an indictable criminal offence and specifying appropriate remedies.
Civil law options
The Crown also has a fiduciary obligation with Aboriginal and Torres Strait Islander peoples to protect them from genocidal acts. Some of the general issues arising from this relationship have been raised in a number of recent cases (see Northern Land Council v The Commonwealth [No.2] (1986) 75 ALR210; Mabo v Queensland (No.2] 175 CLR 1;[14] Coe (on behalf of the Wiradjuri tribe) v The Commonwealth [1993] HCA 42; (1993) 118 ALR 193), however, the extent of this obligation is yet to be determined by the judiciary.[15]
One possible source for the Crown's fiduciary obligation to Aboriginal and Torres Strait Islander peoples may have arisen from the unprecedented disadvantage or vulnerability that they faced as a result of their explicitly racially based exclusion from the electoral process.[16] In this context it is worth noting observations made in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 142, where Dawson J stated that:
There is, however, the notion underlying all the cases of fiduciary obligation that inherent in the nature of the relationship itself is a position of disadvantage or vulnerability on the part of one of the parties which causes him too place reliance upon the other and requires the protection of equity acting upon the conscience of that other...
The Supreme Court of Canada in Lac Minerals Ltd v International Corona Resources Ltd [1989] 2 SCR 574 at 599-600 expressly approved of Dawson J's previously recounted remarks, and adopted the view of Wilson J in Frame v Smith [1987] 2 SCR 99 at 136 where His Honour stated that:
Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:
(1) The fiduciary has scope for the exercise of some discretionary power.
(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.
(3) The beneficiary is particularly vulnerable to or at the mercy of the fiduciary holding the discretion or power. This last feature is indispensable to the existence of the relationship ..:
In Coe (on behalf of the Wiradjuri tribe) v The Commonwealth [1993] HCA 42; (1993) 118 ALR 193 at 202, Mason CJ accepted "that in some circumstances a fiduciary relationship may arise out of a representation, just as it may arise out of an undertaking". Consequently, because of the long period in which Aboriginal and Torres Strait Islander people were expressly disenfranchised, the Crown had a fiduciary obligation to act in their interests, particularly in protecting them from acts of genocide.
An option that may need to be considered is the Beaudesert Principle,[17] which is based on the Full High Court ruling in Beaudesert Shire Council v Smith [1966] HCA 49; (1966) 120 CLR 145 at 155-156, which stated that a person who suffers harm as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from the other. This ruling has been subjected to severe criticism by some academics[18] and has been stifled by the judiciary.[19] Nevertheless, the Beaudesert Principle has such a vast area of operation that it may satisfy the unique legal issues raised by alleged acts of genocide.
A plaintiff could also seek a declaration that State laws analogous to genocidal acts were not laws promoting the "peace, order and good government" of the State and were therefore ultra vires their respective State Constitutions.[20] In Sillery v R [1981] HCA 34; (1982) 35 ALR 227 at 234, Murphy J suggested that the Commonwealth and State legislatures do not have unlimited delegation of legislative authority under their respective Constitutions, and in Building Construction Employees v Minister for Industrial Relations (1986) 7 NSWLR 372 at 387, Street CJ stated that:
... laws inimical to, or which do not serve the peace, welfare, and good government of our parliamentary democracy ... will be struck down by the courts as unconstitutional.
Judicial opinion is divided on limiting the scope of legislative powers (see Building Construction Employees v Minister for Immigration (1986) 7 NSWLR 372 per Kirby P at 405 and Mahoney J at 413; Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 per Brennan J at 44). Accordingly, laws affecting fundamental human rights such as torture (see Sillery v R [1981] HCA 34; (1981) 35 ALR 227 at 234) or genocide are struck down by the courts as unconstitutional. Therefore, State laws that are ultra vires their respective Constitutions may provide a plaiftiff with a common law action for damages in relation to acts of genocide.
The previously mentioned civil actions may be generally frustrated by Limitation of Actions statutes, which generally limit the time for taking action to six years. There may, however, be ways of overcoming the relevant Limitation of Action statute. For example, no statutory limitation exists under international treaty law for the crime of genocide,[21] and the same may be true for the common law (see Polyukhovich v The Commonwealth (War Crimes Act Case) [1991] HCA 32; (1991) 172 CLR 501 at 557). Governments could also waive their respective Limitation of Actions statutes, and settle claims by negotiation, rather than litigation. This gesture would be in the spirit of recommendation 4 of the Final Report of the Royal Commission Into Aboriginal Deaths In Custody, which was made in relation to claims for deaths based upon the findings of the Royal Commissioners.
In conclusion, it is worth recalling Royal Commissioner JH Wootten QC's examination of the practices of the former New South Wales Aboriginal Welfare Board, and his suggestion that assimilation in its crudest forms fell within the Convention's definition of genocide, and "in particular the attempt to 'solve the Aboriginal problem by the taking away of children and merging them into white society".[22]
Conclusion
At the Redfern (Sydney) launch on 10 December 1992 of the International Year for the World's Indigenous People, the Prime Minister, The Honourable PJ Keating MP, officially recognised a number of genocidal crimes committed by the Crown against Aboriginal and Torres Strait Islander people, including “dispossession”, “murder”, and the “taking of children from their mothers”.[23] As a gesture of reconciliation with Aboriginal and Torres Strait Islander people, the Parliament should build upon the Prime Minister's statesmanship, and fulfil Australia's commitments under the Convention by introducing legislation to ensure that its obligations are enforceable in municipal courts. The Parliament could also make the legislation retrospective, as the War Crimes Act 1945 (Cth)), as amended by the War Crimes Amendment Act 1988 (Cth), did for certain European war crimes.[24] At the very least, the issue of compensation must be addressed for those who have suffered from the consequences of past acts of genocide, and the compensation claims should be dealt with as part of the reconciliation process, and settled by negotiation, rather than litigation.
[1] Coe (on behalf of the Wiradjuri tribe) v The Commonwealth (1993)118 ALA 193 at 198.
[2] An amended statement of claim was lodged at the Sydney Register of the High Court of Australia in Febuary 1994.
[3] Davie, C.R. and Forbes, J.R. (ads), "More Precision from Mabo Claims?", (1994), 1(1) Native Title News 4
[4] Ibid
[5] Hon. Wayne Goss MLA, Premier of Queensland, "Action to be Taken on Outstanding Ambit Land Claims", Media Release, 24 January 1994.
[6] Ibid
[7] Ibid
[8] Ibid
[9] "Writ on Land Rights to Stay", Courier Mail, 24 March 1994, p17.
[10] The text of the Convention appears in a schedule to the Genocide Convention Act 1949 (Cth).
[11] See Hannikainen, L., Peremptory Norms Qus Cogens) in International Law, Finnish Lawyer's Publishing Co., Helsinki, 1988, pp462-464; Edward,, R.W., 'Contributions of the Genocide Convention to the development of International Law' (1981) 8 Ohio NULR 300 at307; Thombeny, P., International Law and the Rights of Minorities, Clarendon Press, Oxford, 1991, pp93-100.
[12] Hogg, P.W., Liability of the Crown, 2nd ed., law Book Co., Sydney, 1989, pp232-234.
[13] Civil courts are generally loath to declare that a criminal act has occurred; see, for example, Meagher, R.P., Gununow, W.M.C., and Lehane, J.RF., Fa uily: Doclrin¢s and Remedies, 3rd ed., Butterworths, Sydney, 199Z pare 1920.
[14] For a fuller exposition of these two cases see Hughes, C., 'The Fiduciary Obligations of the Crown to Aborigines: Lessons from the United States and Canada", [1993] UNSWLawJl 6; 1993,16 (1) UNSW Law Journal 70.
[15] See Malbon, J., "The Fiduciary Duty: The Next Step for Aboriginal Rights?" (1994) 19 (2) Alternative Law journal 72; and for an examination of the extent of this relationship in Canada see Bryant, M.J., "Crown-Aboriginal Relationships in Canada: The Phantom of Fiduciary Law" (1993) 27 (1) University of British Columbia Law Review 19.
[16] This exlusion continued in some States until the 1960s; see Bolger, A., and Rumley, H., Noting Rights for Black Australians' (1978) 3 Legal Services Bulletin 221.
[17] This option is proposed in Merkel, R., 'Government Culpability for the Forced Removal of Aboriginal Children" (1990) AboriginalLB 47/4; and Merkel, R., "A Paper on Legal Options for Aborigines Taken From Their Families and Their People", Unpublished Conference Paper, The Going Home Conference, Darwin, 3-6 October 1994.
[18] See Dworkin, G., and Harari, A., 'The Beaudesert Decision - Raising the Ghost of the Action Upon the Case' (1967) 40 Australian Law journal 296 at 347; Standish, M.J., 'Beaudesert Shire Council v Smith and Others' [1967] MelbULawRw 30; (1967) 6 MULR 225; Dworkin, G., 'Intentionally Causing Economic Loss - Beaudesert Shire Council v Smith, revisited' [1974] MonashULawRw 2; (1974) 1 Mon LR 4 and Heydon, J.D.,The Future of the Economic Torts(1975)12 UWALR1.
[19] On 6 September the Full High Court finished hearing an appeal from the Court of Appeal (Northern Territory) in Northern Territory v Mengel (1994) Australian Torts Reports 81-267, which unanimously overturned a trial judge's award of damages based on the application of the Beaudesert Principle; see Solomon, D., (ad.), 'Beaudesert Shire Council to be Reviewed' (1994) 11 Legal Reporter (Special farm) 1, and O'Brien, D., 'The Territory Cattle Station Quarantine Case', Financial Review, 30 September 1993, p27.
[20] See Calder v Attorney-General (British Columbia) [19731 SCR 313 per Hall J at 413 in relation to the extinguishment of Aboriginal tide in Canada.
[21] See Article 1(b) of the Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1970), 754 United Nations Treaty Series 73, and Article 1(1) of the European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes (1974), European Treaty Series 82.
[22] RCIADIC, Report of the Inquiry into the Death of Malcolm Charles Smith, AGPS, Canberra (1989) pp76-77.
[23] Keating, P.J., "Speech by the Honourable Prime Minister, PJ Keating MP at the Australian launch of the International Year for the World's Indigenous
People" 0993) AboriginalLB 61/4m
[24] The validity of this legislation was upheld in Polyukhovich v The Commonwealth (War Crimes Act Case) [1991] HCA 32; (1991) 172 CLR 501 by a four to dace majority, with two judges dissenting on the retrospectivity issue.