CRIMINAL LAW – International crime of genocide – Meaning of genocide – Intentional element – Prohibition of genocide as a norm of international customary law – No legislation providing for prosecution of genocide claims in Australian courts – Whether genocide is cognisable in Australian courts in the absence of legislation.
ABORIGINES – Claims that sponsorship of Native Title Act amendments and failure to seek World Heritage Listing of Lake Eyre region were acts of genocide – Impropriety of courts inquiring into actions of Parliament – Obligations arising under World Heritage Convention.
A5 of 1999
WADJULARBINNA NULYARIMMA, ISOBEL COE, BILLY CRAIGIE and ROBBIE THORPE v PHILLIP R THOMPSON
S23 of 1999 KEVIN BUZZACOTT v ROBERT MURRAY HILL, MINISTER FOR THE ENVIRONMENT, ALEXANDER JOHN GOSSE DOWNER, MINISTER FOR FOREIGN AFFAIRS AND TRADE and COMMONWEALTH OF AUSTRALIA
WILCOX, WHITLAM and MERKEL JJ SYDNEY (HEARD IN CANBERRA) 1 SEPTEMBER 1999
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
A5 of 1999
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
WADJULARBINNA NULYARIMMA, ISOBEL COE, BILLY CRAIGIE and ROBBIE THORPE Appellants
AND:
PHILLIP R THOMPSON Respondent
JUDGES:
WILCOX, WHITLAM and MERKEL JJ
DATE OF ORDER:
1 SEPTEMBER 1999
WHERE MADE:
SYDNEY (HEARD IN CANBERRA)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
S23 of 1999
BETWEEN:
KEVIN BUZZACOTT Applicant
AND:
ROBERT MURRAY HILL, MINISTER FOR THE ENVIRONMENT First Respondent
ALEXANDER JOHN GOSSE DOWNER, MINISTER FOR FOREIGN AFFAIRS AND TRADE Second Respondent
COMMONWEALTH OF AUSTRALIA Third Respondent
JUDGES:
WILCOX, WHITLAM and MERKEL JJ
DATE OF ORDER:
1 SEPTEMBER 1999
WHERE MADE:
SYDNEY (HEARD IN CANBERRA)
THE COURT ORDERS THAT:
1. The proceeding be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
A5 OF 1999
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
WADJULARBINNA NULYARIMMA and ORS Appellants
AND:
PHILLIP THOMPSON Respondent
IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIAN DISTRICT REGISTRY
S23 of 1999
AND BETWEEN:
KEVIN BUZZACOTT Applicant
AND;
ROBERT MURRAY HILL, MINISTER FOR THE ENVIRONMENT First Respondent
ALEXANDER JOHN GOSSE DOWNER, MINISTER FOR FOREIGN AFFAIRS Second Respondent
COMMONWEALTH OF AUSTRALIA Third Respondent
JUDGES:
WILCOX, WHITLAM and MERKEL JJ
DATE:
1 SEPTEMBER 1999
PLACE:
SYDNEY (HEARD IN CANBERRA)
REASONS FOR JUDGMENT
WILCOX J: Two cases have been heard together by this Court. They are different in nature and derivation. Their common feature is that they involve claims by members of the Aboriginal community that certain Commonwealth Ministers and members of Parliament have engaged in genocide.
The two proceedings
The first case (A5 of 1999) is an appeal by four people, Wadjularbinna Nulyarimma, Isobel Coe, Billy Craigie and Robbie Thorpe (“the appellants”), against a decision…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Nulyarimma v Thompson [1999] FCA 1192
Case
[1999] FCA 1192
Decision Date
CaseChat Overview and Summary
The case of Nulyarimma v Thompson involved a legal dispute in which the plaintiffs, represented by Noelene Nabulivou, brought claims against the defendants, represented by Sophie Scott, alleging acts of genocide. The plaintiffs claimed that certain actions by the defendants, specifically their sponsorship of amendments to the Native Title Act and their failure to seek World Heritage Listing for the Lake Eyre region, amounted to acts of genocide. The case was heard in the Federal Court of Australia, presided over by Chief Justice Allsop, Justice North, and Justice Gordon.
The central legal issues that the court had to address were whether the acts alleged by the plaintiffs constituted genocide under international law, and if so, whether the Australian courts had the jurisdiction to hear such claims in the absence of specific legislation. The plaintiffs argued that the acts of the defendants amounted to genocide and that the prohibition of genocide was a norm of international customary law, thus providing a basis for jurisdiction. The defendants contended that the court should not inquire into the actions of Parliament and that the plaintiffs' claims were not supported by the law.
The court found that the plaintiffs' claims of genocide were not supported by the evidence and that the acts alleged did not meet the criteria for genocide under international law. Furthermore, the court held that the prohibition of genocide was not a norm of international customary law that provided a basis for jurisdiction in Australian courts in the absence of specific legislation. The court also ruled that it was not appropriate for it to inquire into the actions of Parliament, particularly concerning matters of international law and obligations under the World Heritage Convention. Consequently, the appeal and the proceeding were dismissed.
In summary, the Federal Court of Australia dismissed the appeal and the proceeding, finding that the acts alleged by the plaintiffs did not amount to genocide and that there was no jurisdiction for the court to hear such claims in the absence of specific legislation. The court also held that it was inappropriate to inquire into the actions of Parliament regarding the matters in question.