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Bhuta, Nehal; Walker, Melinda --- "Upholding the Law v Maintaining Legality: Nulyarimma v Thompson" [1999] IndigLawB 81; (1999) 4(24) Indigenous Law Bulletin 15


Upholding the Law v Maintaining Legality:

Nulyarimma v Thompson

Nulyarimma v Thompson

[1999] FCA 119

Full Court of the Federal Court of Australia

Wilcox, Whitlam and Merkel JJ

Seeking declaration on status of international crime of genocide in Australian law.

1 September 1999

by Melinda Walker & Nehal Bhuta

...there was a show on Four Corners recently on Rwanda. It was called ‘When Good Men Do Nothing’. That is what happens, when good men do nothing you have these types of acts continuing. And because they can hide behind these flimsy doors and use their power to oppress Aboriginal people into the position that we are in...That is because good men do nothing. Well, I believe that you are good men and I hope you do not do nothing about what we are saying here today.

Robbie Thorpe of the Gunnai people[1]

When is this nightmare going to end? When is this recurring nightmare going to end? My people are screaming for justice and mercy. You know, it has to begin. Somewhere along the line someone has to be responsible. Someone has to say that there has got to be an end to this war.

Isabel Coe of the Wiradjuri tribe[2]

You see the sacred sites, the mountain springs, the creation spring destroyed before you...I cannot rest while this is happening. I have to keep going. I have to stop these people from destroying that Lake.

Kevin Buzzacott of the Arabunna people.[3]

On 31 May, the Full Federal Court of Australia in Canberra, constituted by Justices Wilcox, Whitlam and Merkel, began taking submissions in two matters. The first was an appeal from a decision of the Australian Capital Territory (‘the ACT’) Supreme Court.[4] On 6 July 1998 the appellants in this matter attended the ACT Magistrates’ Court and requested the Registrar to issue warrants for the arrest of John Winston Howard, Timothy Andrew Fischer, Brian Harradine and Pauline Lee Hanson. The warrants were sought in respect of informations which charged that those persons, ‘in formulating or supporting the government’s “Ten Point Plan” and the Native Title Amendment Bill 1997 (Cth), had committed the criminal offence of genocide’.[5] The second matter was an application to strike out another proceeding which Kevin Buzzacott of the Arabunna people had commenced in South Australia.[6] These matters were heard together as they both involved claims by Aboriginal plaintiffs that certain persons had engaged in conduct constituting genocide in direct contravention of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (‘the Convention’).[7]

Articles II, III and IV of the Convention define conduct constituting the offence of genocide:

Article II

...genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such :

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group



Article III

The following acts shall be punishable :

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide

(e) Complicity in genocide



Article IV

Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Both of the present cases concerned acts ‘which cause a severance between particular Aboriginals and Aboriginal groups and their land.’[8] However, the legally disputed issue between the parties was ‘whether the crime of genocide, which attracts universal jurisdiction under international law, can become part of Australian law without a legislative act creating genocide as an offence.’[9]

Two approaches to making international law part of Australian law were submitted for the judges’ consideration: incorporation and transformation. The doctrine of incorporation states that ‘the rules of international law are incorporated into [domestic] law, automatically are considered to be part of [that] law unless they are in conflict with an Act of Parliament.’[10] From this, it follows that where international law changes, so does domestic law. The transformation doctrine states that ‘the rules of international law are not to be considered as part of...law except in so far as they have been already adopted and made part of our law as by the decisions of the judges or, by an Act of Parliament, or long established custom.’[11]

Counsel for the appellants contended that ‘either by incorporation or common law adoption the prohibition of genocide has become, or ought now be received as, part of the common law of Australia.’[12] The Crown argued in response that ‘it is only by legislative adoption, which has not yet occurred, that the crime of genocide can be considered part of the law of Australia.[13] [emphasis added].

The Decision

Justice Wilcox, in determining whether genocide is a recognisable offence, held that:

it is not enough to say that, under international law, an international crime is punishable in a domestic tribunal even in the absence of a domestic law declaring that conduct to be punishable. 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 statue, that means Australian common law.[14]

After extensive consideration of the relevant case law, two out of three judges held that genocide is not an offence that is recognised by Australian law.

Justice Whitlam argued that as a consequence of the decision in Knuller (Publishing and Promotions) Ltd v. Director of Public Prosecutions[15] (‘Knuller’) and the Commonwealth Criminal Code’s[16] (‘the Code’) abolition of common law criminal offences from 1 January 1997, the courts are no longer able to create new criminal offences. His Honour considered the Knuller and the Code to represent an insurmountable rebuttal of any argument that the Court should recognise genocide as a crime under Australian law, holding that since the promulgation of the Code ‘genocide cannot be recognised as a common law offence under Commonwealth law.’[17]

In contrast, Justice Merkel found:

no binding authority of persuasive jurisprudential support for the Commonwealth’s submission that adoption of customary international civil law or criminal law in relation to universal crimes, as such, into Australian municipal law requires legislation to that effect.[18]

His Honour favoured a common law ‘adoption’ approach to making international law part of Australian law, an approach that was not submitted in argument. His Honour found that the question for the court to decide was whether ‘to “adopt” and therefore receive as part of common law an existing offence under international law which has gained the status of a universal crime.’[19] On the basis of this adoption approach, Justice Merkel rejected Justice Whitlam’s view that ‘the reception into the common law of a universal crime under international law involves the courts “creating” a new crime’[20] under Australian common law. His Honour distinguished this common law method of ‘adoption’[21] from the notion of ‘creation’ that is prohibited by caselaw and statute alike.[22] By ‘adopting’, the courts ‘are not creating a new offence...rather, the courts are determining, by reference to criteria established by the common law, whether... municipal law is to recognise and therefore receive that which has evolved into a crime of universal jurisdiction in international law.’[23] On the basis of this distinction, His Honour reasoned that Knuller, Withers’ and the prohibition in s 1.1 of the Code did not apply in the present case,[24] holding that ‘the offence of genocide is an offence under the common law of Australia.’[25]

Comment

The appellants did not lodge their claims only to demonstrate genocide but also to articulate through legal avenues the relationship between Aboriginal people and their land. The claimants were essentially contending that the ordinary and strictly legal operation of governmental institutions is perceived by many Aboriginal people as a continuing act of genocide. The Court, however, viewed the claims in such a way as to take a strictly legal approach to the issue.

Thus, the fundamental challenge to the appellants was between judicial roles and ordinary perceptions. The Judicial office requires judges to consider, determine and uphold the law. In Australia, the form of genocide argued by the appellants is more subtle than the commonly cited examples of Rwanda or the Nazi Holocaust.

As Wadjularbinna in her submissions stated:

...the land is the essence of our very being. We live it, we breathe it, we speak it. The land is our cathedral. The land is our chemist...The land is where we dance where our art galleries where we paint, it is our libraries. The land is us and we are the land.

Wadjularbinna Nulyarimma of the Gungalidda Nation.[26]

The Court was urged that if driven to the conclusion as a matter of law that genocide did not form part of the law in Australia,

then the court [was] entitled...to say so in the clearest terms so that no-one can be under any illusion at all that Australia, for whatever reasons, has failed to adhere to its international obligations and has failed to acknowledge as part of its law a rule which is of such fundamental importance and such universal significance...[27]

This decision makes it clear that Australia has not adhered to its international obligations and that continuing acts causing a severance of the land and its people are acts of a genocidal nature. According to the Federal Court decision these acts are unable to be prosecuted in Australia.

In argument, Julian Burnside QC for the appellants stated that ‘[t]he greatest tragedy in this case would be that you are against us on the proposition and no-one even notices.’[28] It is submitted that this is exactly what happened. The appellants are currently seeking special leave to appeal to the High Court.

Melinda Walker is articled clerk with Simon Northeast Barristers & Solicitors, Melbourne. Nehal Bhuta is a final year law student at the University of Melbourne.


[1] Wadjularbinna Nulyarimma v Phillip Thompson [1999] FCA 1192, 185; Robbie Thorpe, transcript of proceedings (1 June 1999) 186.

[2] Isabel Coe, transcript of proceedings (1 June 1999) 170.

[3] Kevin Buzzacott, above n 2,180.

[4] Re Thompson; Ex parte Nulyarimma (1998) 136 ACT 9.

[5] Nulyarimma v Thompson [1999] FCA 119, para 67.

[6] Kevin Buzzacott v Hill, Downer & Commonwealth of Australia.

[7] Opened for signature 9 December 1948, 78 UNTS277 (entered into force 12 January 1951).

[8] Julian Burnside QC, transcript of proceedings (31 May 1999) 26.

[9] Merkel J, ibid, para 82.

[10] Trendex Trading Corp v Central Bank of Nigeria (1977) 1 QB 529, 553-554.

[11] Ibid.

[12] Above n 5, para 85.

[13] Ibid.

[14] Ibid, para 22.

[15] [1973] AC 435.

[16] Criminal Code 1995 (Cth), section 1.1 states that ‘[T]he only offences against the laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act’.

[17] Whitlam J, above n 5, paras 53 & 54.

[18] Merkel J, above n 5, para 160.

[19] Ibid.

[20] Ibid, para 167.

[21] Ibid, para 177.

[22] See R v Rogerson [1992] HCA 25; (1991) 174 CLR 268, 304. Cf Reg v Knuller (Publishing) Ltd (1973) AC 435, 457-458, 464-465, 479, 490 and 496.

[23] Merkel J, above n 5, para 179.

[24] Ibid. Cf R v Withers (1975) AC 842.

[25] Ibid, para 185 & 186.

[26] Wadjularbinna Nulyarimma, transcript of proceedings (1 June 1999) 155.

[27] Julian Burnside QC, transcript of proceedings (31 May 1999) 41.

[28] Ibid.

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