Nulyarimma v Thompson

[1999] FCA 1192

FEDERAL COURT OF AUSTRALIA

Nulyarimma v Thompson [1999] FCA 1192

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

1. 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

2. 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 of Crispin J, a judge of the Supreme Court of the Australian Capital Territory.  This decision is reported as Re Thompson; Ex parte Nulyarimma (1998) 136 ACT 9.  Crispin J upheld the refusal of the respondent in that case, the Registrar of the Magistrates Court of the Australian Capital Territory, Phillip R Thompson, to issue warrants for the arrest of four persons, John Winston Howard (the Prime Minister), Timothy Andrew Fischer (the Deputy Prime Minister), Brian Harradine (a Senator) and Pauline Lee Hanson (a member of the House of Representatives) in respect of informations that charged they had committed the criminal offence of genocide in connection with the formulation of the Commonwealth government’s native title “Ten Point Plan” and presentation and support of the Bill that, as extensively amended, became the Native Title Amendment Act 1998.

3. The second case (S23 of 1999) is a motion by the respondents to strike out a proceeding instituted by Kevin Buzzacott in the South Australian Registry of the Federal Court of Australia, on behalf of the Arabunna People, against two Commonwealth Ministers, Robert Hill (Minister for the Environment) and Alexander Downer (Minister for Foreign Affairs and Trade) and the Commonwealth of Australia (“the respondents”).  Mr Buzzacott alleges the respondents committed genocide in failing to apply to the UNESCO World Heritage Committee for inclusion of the lands of the Arabunna People (which include Lake Eyre) on the World Heritage List maintained under the World Heritage Convention.  Mr Buzzacott did not seek criminal sanctions but he claimed the failure constituted genocide and sought civil remedies, including a mandatory injunction compelling the respondents to proceed with the World Heritage application.  The strike out motion was referred by a Judge to a Full Court sitting in Adelaide, but adjourned by that Court to be dealt with by this Court in conjunction with the Australian Capital Territory appeal. 

   Australian history and genocide

4. I have had the advantage of reading in draft form the reasons for judgment to be delivered by each of my colleagues.  I need not repeat what they say.  Merkel J refers to the definition of genocide used in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide that was ratified by Australia on 8 July 1949 and came into force on 12 January 1951.  It seems the term “genocide” was coined by the Polish jurist, Dr Raphael Lemkin, from the ancient Greek word genos (race or tribe) and Latin cide (killing).  The essence of the international crime of genocide is the commission of acts that are intended to destroy, in whole or in part, a national, ethnical, racial or religious group.

5. 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 out; chiefly by exotic diseases and the loss of their traditional lands, but also by the direct killing or removal of individuals, especially children.  Over several decades, children of mixed ancestry were systematically removed from their families and brought up in a European way of life.  Those Peoples who have been deprived of their land, but who nevertheless have managed to survive, have lost their traditional way of life and much of their social structure, language and culture. 

6. Not surprisingly, this social devastation has led to widespread (although not universal) community demoralisation and loss of individual self-esteem, leading in turn to a high rate of alcohol and drug abuse, violence and petty criminality followed by imprisonment and, often, suicide.  Many (not all) communities suffer substandard housing, hygiene and nutrition, leading to prevalent diseases that are rarely experienced by non-indigenous communities.  The result of all this, as numerous studies have demonstrated, is that indigenous Australians face health problems of a different order of magnitude to those of other Australians, leading to an expectancy of life only about two-thirds that of non-indigenous people.

7. 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.

8. Many of us non-indigenous Australians have much to regret, in relation to the manner in which our forebears treated indigenous people; possibly far more than we can ever know.  Many of us have cause to regret our own actions.  As the recent report of the Human Rights and Equal Opportunity Commission, “Bringing them home”, reminded (or taught) us, the practice of removing children of mixed ancestry from Aboriginal communities was not something confined to the distant past; it continued well into the 1960s in some parts of Australia.  There must be many people, still in their 30s and 40s, who were taken from their mothers as infants. 

9. One of those people, although somewhat older, is Wadjularbinna Nulyarimma, the first appellant.  She recounted her story to the Court in moving and eloquent terms.  She told about the rape of her mother by white men, as a result of which she was conceived, the only mixed ancestry child in a black family.  She told how her mother rubbed goanna fat and charcoal into her skin to make her black; nonetheless she was taken from her family and put into a mission home where she was forbidden to speak her own language.  She told us how she came to marry:

   “I was just called in one day by the superintendent, 'we’re marrying you off into a white family’.  And I was absolutely shocked.  ‘No, I don’t want to go’, I said, ‘I don’t want to go’.  ‘This is the best thing for you.  You are not a black person; you have white blood in you’.  I came from a black woman’s womb.  They are my family, my people and I have some white person, superintendent, telling me that he knows what is best for me and his best for me to marry into a white family was added stress, added pain, added trauma.  I had no idea.  A little black girl coming from humble beginnings now going to be put into the world of snobbery.  Not just an urban black; I am going to be there where people measure their worth by their wealth, their position and power, poor sick people, but I was soon to learn that.”

10. Wadjularbinna Nulyarimma had several children, but eventually left them.  She told us how this came about.  Her mother came to the cattle station where she lived with her husband:

    “… my husband then said she could not stay there.  ‘This is not a black’s camp’.  She had to go.  And I had to face the facts, who am I?  Am I this black girl playing a game of let us pretend I am white?  Well, I had better start dealing with it and just be true to myself.  And up to that date in 1970, I came to terms with who I was.  And it was the first time I made a choice.  And I said to my mother, ‘I’m going home’.  She said, ‘You leave your husband, now?’  And I said, ‘Mamma, I’ve made up my mind’.  And I made it up.  I had to decide and my children – I destroyed my children.

    In Aboriginal law you stay with the man until you part through death.  And my mother looked at me with tears streaming down her face and she said, ‘You break Aboriginal law, now?’  I was damned if I did and I was damned if I did not.  And my children’s lives, I had to decide.  That is what white Australia did to me.  And I looked into my little children’s eyes and I had to tell them.  They cried and said, ‘We want to stay with our daddy’.  But I said, ‘I’m, somebody else, with a different law, different values, different system’.  And I told them, in theory, all about it, that they were brought up as white children.  Now my children are trying to find their identity and trying to fit in.”

11. The other appellants also told stories that indicated the trauma still suffered by indigenous Australians as a result of their treatment by whites.  It is important to us as a nation that we do not treat indigenous devastation as only a thing of the past.  The trauma lives on, and many of the causes as well.

12. However, deplorable as our history is, in considering the appropriateness of the term “genocide”, it is not possible too long to leave aside the matter of intent.  As already mentioned, it is of the essence of the international crime of genocide that the relevant acts  be intended to destroy, in whole or in part, a national, ethnical, racial or religious group.  Some of the Australian destruction clearly fell into this category.  A notable example is the rounding up of the remaining Tasmanian Aboriginals in the 1830s, and their removal to Flinders Island.  There are more localised examples as well.  Before that date in Tasmania, and both before and after that date on the Australian mainland, there were shooting parties and poisoning campaigns to “clear” local holdings of their indigenous populations.  Nonetheless, it remains true that the biggest killers were diseases unintentionally introduced into Australia by whites and the consequences of denying Aboriginals access to their traditional lands.  With the benefit of hindsight, we can easily see the link between denial of access and those consequences; but it is another matter to say they were, or should have been, foreseen by the first Europeans who settled on the land (with or without official approval), whose main objective was to make settlement pay.

13. Of course, there was an element of intent about all the killings.  A squatter who shot at Aborigines in reprisal for them spearing his cattle must be taken to have intended to kill the individuals at whom he shot; it cannot necessarily be presumed he intended to destroy the group as such, even in part.

14. In his judgment under appeal, Crispin J set out an extensive history of the dispossession of Aboriginal people from their lands following British settlement of Australia:  see paras [11] to [41].  His Honour’s account is not unsympathetic to the appellants’ viewpoint; indeed, quite the contrary.  In para [11] his Honour observed: 

    “It is undeniable that the British colonisation had gravely adverse consequences for the Aboriginal peoples of Australia.  They had shared unchallenged dominion over the Australian continent for thousands of years.  Then within the space of a few generations the bulk of their land was wrested from them by invaders from over the seas.”

    In para [32] Crispin J said:  “the wholesale destruction of Aboriginal peoples was related to an equally wholesale usurpation of their lands”.  He went on to point out this usurpation was contrary even to English law.  Yet it is apparent from his Honour’s account that this course of conduct was not the product of any sustained or official intention to destroy the Aboriginal people, but rather of circumstances and the attitudes and actions of many individuals, often in defiance of official instructions.  In the case of a dispossession of land and destruction of Peoples that occurred gradually over several generations and stemmed from many causes, it is impossible to fix any particular person or institution with an intention to destroy the Aboriginal people as a whole. 

15. 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.  Without offering any personal comment on the matter, I can understand the view that the proposals listed in the “Ten Point Plan”, and substantially enacted in the 1998 amendments to the Native Title Act, further disadvantaged indigenous people in relation to their traditional lands.  Given the intimate connection between their traditional lands and Aboriginal and Torres Strait Islander people, and the importance of their lands to their way of life and culture, it is understandable some would see the “Ten Point Plan” and 1998 amendments as only the latest step in a process that has been going on for more than 200 years.  However, if one is to use a legal term like “genocide” to describe that process, it is important to remember this entails a requirement to prove an intent to destroy a people.

16. Similarly, I note the material put before the Court by Mr Buzzacott in connection with the importance to the Arabunna people of conserving the natural qualities of the Lake Eyre region.  Mr Buzzacott points out the need to retain the waterholes that have so long sustained life in this arid region.  He says mining operations have already affected the waterholes, leading to a loss of reliable water and of flora and fauna.  He claims this has adversely affected the utility of the waterholes for his People and their ability to maintain their traditional way of life.  If these allegations are correct – I bear in mind they have yet to be tested – the proper conservation of this area is critically important to his People.  It is understandable that, in the belief this would give the area a greater measure of protection, he favours its inclusion on  the World Heritage List.  It is also understandable he should see the apparent decision of Senator Hill and Mr Downer not to proceed with an application for inclusion as inimical to the survival of his People.  However, even assuming their decision may have that effect, it is another matter to say the Ministers were actuated by an intent to destroy the Arabunna People, in whole or in part.

17. The existence of a particular intent is a matter of fact, and the facts of the present cases have yet to be investigated.  However, even if it is possible for them, in their respective cases, to demonstrate genocidal intent, neither the appellants nor Mr Buzzacott would, in my opinion, be entitled to succeed.  Although I agree with both my colleagues that genocide is a crime under international customary law, like Whitlam J but unlike Merkel J, I do not think that, in the absence of appropriate legislation, it is cognisable in an Australian court.

    Genocide in international law

18. I accept that the prohibition of genocide is a peremptory norm of customary international law, giving rise to a non-derogatable obligation by each nation State to the entire international community.  This is an obligation independent of the Convention on the Prevention and Punishment of the Crime of Genocide.  It existed before the commencement of that Convention in January 1951, probably at least from the time of the United Nations General Assembly resolution in December 1946.  I accept, also, that the obligation imposed by customary 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 set out in the Convention.  It is generally accepted this definition reflects the concept of genocide, as understood in customary international law.

19. It follows from the obligation to prosecute or extradite, imposed by international customary law on Australia as a nation State, that it would be constitutionally permissible for the Commonwealth Parliament to enact legislation providing for the trial within Australia of persons accused of genocide, wherever occurring.  In Polyukhovitch v the Commonwealth (1991) 172 CLR 501, the High Court held that legislation providing for the trial in Australia of persons alleged to have committed war crimes outside Australia during the Second World War was a valid exercise of the Commonwealth Parliament’s power to make laws with respect to external affairs. None of the Justices thought it necessary that Australia be under an obligation to enact the legislation; it was enough that it pertained to conduct external to Australia:  see per Mason CJ at 530-531, per Deane J at 599-604, per Dawson J at 632-638, per Toohey J at 652-656, per Gaudron J at 695-696, per McHugh J at 712-714.  Where there is a positive obligation to provide a trial, pursuant to international customary law, the argument in favour of legislative validity is even more compelling.  Although Brennan J dissented on other grounds in Polyukhovitch, he was of this opinion.  At 562-563 his Honour said:

    “… I would hold that a law which vested in an Australian court a jurisdiction recognized by international law as a universal jurisdiction is a law with respect to Australia’s external affairs.  Australia’s international personality would be incomplete if it were unable to exercise a jurisdiction to try and to punish offenders against the law of nations whose crimes are such that their subjection to universal jurisdiction is conducive to international peace and order.”

1. However, it is one thing to say Australia has an international legal obligation to prosecute or extradite a genocide suspect found within its territory, and that the Commonwealth Parliament may legislate to ensure that obligation is fulfilled; it is another thing to say that, without legislation to that effect, such a person may be put on trial for genocide before an Australian court.  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.  Ratification of a convention does not directly affect Australian domestic law unless and until implementing legislation is enacted.  This seems to be the position even where the ratification has received Parliamentary approval, as in the case of the Genocide Convention.   In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287, Mason CJ and Deane J said:

   “It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.  This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive.  So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.”

2. Counsel for the appellants and Mr Buzzacott point out that genocide is one of a handful of “international crimes”, along with piracy, torture, slavery and - more debatably - crimes against peace, war crimes and crimes against humanity.  Hannikainen Peremptory Norms (Jus Cogens) in International Law (1988) at 285 defines an “international crime” as “a grave offence against international law which the international community of States recognises as a crime and for the committing of which the responsible individuals can be punished under international law even if the domestic law of a particular State does not declare it to be punishable”  (Emphasis added).  In support of the latter assertion, Hannikainen cites several  sources, notably Art 6(c) of the Statute of the Nuremberg Tribunal,  Art V(I) of the Statute of  the Tokyo Tribunal and Art 15 of the International Covenant on Civil and Political Rights.  It is not clear to me that these sources justify the statement.  The Articles in the two War Crimes Tribunal statutes merely define the jurisdiction of the particular tribunals.  Article 15 of the International Covenant is concerned to prohibit retrospective criminality.  Its only present relevance is sub-article 2 which reads:

   “2.Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”

3. However, even if Hannikainen’s statement is correct, 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 statute, that means Australian common law.

4. It is at this point that the contest between the “incorporation” approach and the “transformation” approach becomes material.  Merkel J reviews that contest in some detail.  It appears the incorporation approach is now dominant in England, Canada and, perhaps, New Zealand.  The Australian position is far from clear.  However, in his paper International Law as a Source of Domestic Law, published in Opeskin, International Law and Australian Federalism (1997), after reviewing the relevant High Court decisions, Sir Anthony Mason said at 218 “… the difficulties associated with the incorporation theory and proof of customary international law suggest that, in Australia, the transformation theory holds sway”. Statements made in Chow Hung Ching v The King (1949) 77 CLR 449, which have been criticised by commentators but not disavowed by the High Court, seem to justify that conclusion.

5. However, at least in the present context,  the debate is somewhat academic.  In his contribution to Opeskin entitled The Relationship Between International Law and Domestic Law, at 40-47 Professor Ivan Shearer outlined what he called “the English Legacy”.   In the course of that outline, he referred to R v Keyn (1876) 2 ExD 63 and noted the distinction drawn by Cockburn CJ between recognition by a domestic court of the existence of an international rule and giving effect to it by creation of “a jurisdiction beyond and unknown to the law”, which was something reserved for the legislature. Shearer thought the distinction was between “self-executing” and “non-self-executing” rules. At 51 he said:

   “It may be argued that the issue of the status of customary international law in Australian law is not as great as might be thought in practical, if not in theoretical, terms.  So far as ‘clearly established’ rules of international law are concerned, at least in respect of those that are directed towards individuals and are, in the sense explained above, self-executing, these are already regarded as embedded in the common law, such as the immunity of foreign armed forces, or have been incorporated by statute.  The subject matter that brought the issue to a head in England, State immunity, while for a time governed by customary international law regarded as incorporated in domestic common law, is now governed by the Foreign States Immunities Act 1985 (Cth).” (Citations omitted)

6. I think this passage brings home the point that it is difficult to make a general statement covering all the diverse rules of international customary law.  It is one thing, it seems to me, for courts of a particular country to be prepared to treat a civil law rule like the doctrine of foreign sovereign immunity as part of its domestic law, whether because it is accepted by those courts as being “incorporated” in that law or because it has been “transformed” by judicial act.  It is another thing to say that a norm of international law criminalising conduct that is not made punishable by the domestic law entitles a domestic court to try and punish an offender against that law.

7. Perhaps this is only another way of saying that domestic courts face a policy issue in deciding whether to recognise and enforce a rule of international law.  If there is a policy issue, I have no doubt it should be resolved in a criminal case by declining, in the absence of legislation, to enforce the international norm.   As Shearer pointed out at 42, in the realm of criminal law “the strong presumption nullum crimen sine lege (there is no crime unless expressly created by law) applies.” In the case of serious criminal conduct, ground rules are needed.  Which courts are to have jurisdiction to try the accused person?  What procedures will govern the trial?  What punishment may be imposed?  These matters need to be resolved before a person is put on trial for an offence as horrendous as genocide.

8. I am unable to point to much authority for my conclusion.  However, the comment of Brennan J in Polyukhovic at 565 is significant, even though it was made in a somewhat different context.  The comment is quoted by Merkel J.   Brennan J rejected the notion that municipal law might redefine an international crime and observed:  “Rather, what is left to municipal law is the adoption of international law as the governing law of what is an international crime”.  On the following page, Brennan J said:

   “… when municipal law adopts the international law definition of a crime as the municipal law definition of the crime, the jurisdiction exercised in applying the municipal law is recognized as an appropriate means of exercising universal jurisdiction under international law.”

9. Plainly, his Honour had in mind adoption by legislation.  If there is any doubt about that matter, it is resolved by the fact that he followed with a quotation from Brownlie, Principles of Public International Law (4^th ed, 1990) at 561:

   “Since the latter half of the nineteenth century it has been generally recognized that there are acts or omissions for which international law imposes criminal responsibility on individuals and for which punishment may be imposed, either by properly empowered international tribunals or by national courts and military tribunals.  These tribunals exercise an international jurisdiction by reason of the law applied and the constitution of the tribunal, or, in the case of national courts, by reason of the law applied and the nature of jurisdiction (the exercise of which is justified by international law).”

10. Although it is but a straw in the wind, Pinochet (Regina v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet (No.3)[1999] 2 WLR 827) suggests the same conclusion. This is not because of anything said by their Lordships or even anything argued; but rather because of what was not argued. Usually, a non-argument would have no significance; but this was a most exceptional case. The appeal was twice argued in the House of Lords, and those supporting the extradition of Pinochet to Spain were represented by leading international lawyers. On the view that prevailed (that the issue of double criminality must be addressed as at the date of the conduct, not the date of the extradition application), extradition on all charges would have been secured if counsel had been able to demonstrate that Pinochet would have been punishable in the United Kingdom before the commencement of the 1988 United Kingdom statute adopting and implementing the Torture Convention. Yet, although torture is an international crime, nobody suggested Pinochet would have been triable in the United Kingdom before that date by reason of the incorporation into United Kingdom law of the international customary law about torture. The only explanation of this omission can be that those arguing for extradition accepted that torture was not a triable offence in the United Kingdom until implementing legislation was enacted.

11. I acknowledge that, despite the absence of argument on the point, Lord Millett took a different view.  However, I share Whitlam J’s difficulty in accepting his Lordship’s conclusions.  In particular I agree with Whitlam J that the decision of the Supreme Court of Israel in Attorney-General of Israel v Eichmann  (1962) ILR 277 furnishes no support for the view that torture would have been punishable in the United Kingdom, pursuant to international customary law, before September 1988.  Eichmann was charged under an Israeli statute.  It was contended before the District Court that the terms of the Israeli statute were inconsistent with the principles of international customary law concerning genocide.  In a passage in its reasons approved by the Supreme Court at 280, the District Court responded:  “The Court has to give effect to the law of the Knesset, and we cannot entertain the contention that this law conflicts with the principles of international law”.  On my reading of the case, the District Court did only give effect to the law of the Knesset, the Israeli Parliament.

12. In his analysis of Eichmann, Merkel J emphasises a sentence in the judgment of the Supreme Court “The jurisdiction was automatically vested in the State of Israel on its establishment in 1948 as a sovereign State”.  However, that sentence must be read with its successor:  “Accordingly, in bringing the appellant to trial, it has functioned as an organ of international law and has acted to enforce the provision of that law through its own laws”.  I do not think the Supreme Court was saying that it was unnecessary for the State of Israel to enact legislation providing for the trial and punishment of offenders against international crimes; but rather that, immediately on its establishment as a nation State in 1948, Israel had the right (and perhaps the duty) of taking appropriate action to bring such offenders to trial.  The action actually taken was the enactment of a special statute, and the Court did not suggest this was either inappropriate or unnecessary.

    Disposition of the proceedings

13. It follows from what I have said that I am of the opinion that Mr Thompson was correct in refusing to issue the warrants sought by the appellants.  In the absence of enabling legislation, the offence of genocide is not cognisable in the courts of the Australian Capital Territory.  It is unnecessary for me to express views about the other obstacles in the appellants’ path, as identified and discussed by both Crispin J and Merkel J.  I agree with my colleagues that the appeal in proceeding A5 of 1999 ought to be dismissed.

14. The assumption underlying the other proceeding, S23 of 1999, appears to be that, if genocide is a criminal offence known to Australian law, civil remedies are available.  This assumption is highly questionable but it is unnecessary to reach a final view about it; if I am correct in concluding that genocide is not presently cognisable in Australia, it must follow the genocide claim in that proceeding cannot succeed.  That is so, even leaving aside the other problems mentioned by Merkel J.

15. In relation to the other causes of action in proceeding s23 of 1999, I agree with Merkel J.  Merkel J tentatively suggests it may be possible to frame a claim of breach of fiduciary duty owed by the Crown to Aboriginal people, having regard to the claimed effects of mining on the Arabunna people.  That would be a claim independent of the World Heritage Convention and the concept of genocide.  I offer no view as to whether such a claim may effectively be made.  I only say it would be a very different claim from that now before this Court.  Any such claim should be formulated in a new proceeding.  I agree with Whitlam and Merkel JJ that this proceeding, also, ought to be dismissed.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             1 September 1999       

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 5 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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 23 OF 1999

BETWEEN:	KEVIN BUZZACOTT Applicant
AND:	ROBERT MURRAY HILL First Respondent
ALEXANDER JOHN GOSSE DOWNER Second Respondent
COMMONWEALTH OF AUSTRALIA Third Respondent

JUDGES:	WILCOX,WHITLAM and MERKEL JJ
DATE:	1 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WHITLAM J:

1. The background to the two matters before the Court is set out in the reasons for judgment of Merkel J, which I have had the advantage of reading in draft.  The question said to be common to both proceedings is whether genocide forms part of the law of Australia.

2. It is accepted by all parties that under customary international law there is an international crime of genocide, which has acquired the status of jus cogens or a peremptory norm.  This means that States may exercise universal jurisdiction over such a crime.  Counsel for the appellants submit, therefore, that courts in all countries have jurisdiction over genocide.  They rely, in support of their contention, on the opinion of Lord Millett in Reg v Bow Street Magistrate, Ex p. Pinochet (No. 3) [1999] 2 WLR 827 at 912.

3. Pinochet (No.3) was concerned with Spain’s attempt to extradite the former Chilean head of state from the United Kingdom to stand trial in Spain on several charges of torture committed (primarily in Chile) between 1972 and 1990.  The House of Lords had to decide whether the crimes alleged were extradition crimes.  Lord Browne-Wilkinson described the legal principles “in play” in that case as follows (at 832-833):

   “In general, a state only exercises criminal jurisdiction over offences which occur within its geographical boundaries.  If a person who is alleged to have committed a crime in Spain is found in the United Kingdom, Spain can apply to the United Kingdom to extradite him to Spain.  The power to extradite from the United Kingdom for an “extradition crime” is now contained in the Extradition Act 1989.  That Act defines what constitutes an "extradition crime”.  For the purposes of the present case, the most important requirement is that the conduct complained of must constitute a crime under the law both of Spain and of the United Kingdom.  This is known as the double criminality rule.
              Since the Nazi atrocities and the Nuremberg trials, international law has recognised a number of offences as being international crimes.  Individual states have taken jurisdiction to try some international crimes even in cases where such crimes were not committed within the geographical boundaries of such states.  The most important of such international crimes for present purposes is torture which is regulated by the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 . . .  The obligations placed on the United Kingdom by that Convention (and on the other 110 or more signatory states who have adopted the Convention) were incorporated into the law of the United Kingdom by section 134 of the Criminal Justice Act 1988.  That Act came into force on 29 September 1988.  Section 134 created a new crime under United Kingdom law, the crime of torture.  As required by the Torture Convention “all” torture wherever committed worldwide was made criminal under United Kingdom law and triable in the United Kingdom.  No one has suggested that before section 134 came into effect torture committed outside the United Kingdom was a crime under United Kingdom law.  Nor is it suggested that section 134 was retrospective so as to make torture committed outside the United Kingdom before 29 September 1988 a United Kingdom crime.  Since torture outside the United Kingdom was not a crime under U.K. law until 29 September 1988, the principle of double criminality which requires an Act to be a crime under both the law of Spain and of the United Kingdom cannot be satisfied in relation to conduct before that date if the principle of double criminality requires the conduct to be criminal under United Kingdom law at the date it was committed.  If, on the other hand, the double criminality rule only requires the conduct to be criminal under U.K. law at the date of extradition the rule was satisfied in relation to all torture alleged against Senator Pinochet whether it took place before or after 1988.  The Spanish courts have held that they have jurisdiction over all the crimes alleged.
   In these circumstances, the first question that has to be answered is whether or not the definition of an “extradition crime” in the Act of 1989 requires the conduct to be criminal under U.K. law at the date of commission or only at the date of extradition.”

   The Appeal Committee of the House held that the definition of an “extradition crime” in the Extradition Act 1989 (UK) required the conduct to be criminal under United Kingdom law at the date of commission. 

4. Notwithstanding that no one had suggested to their Lordships that before s 134 of the Criminal Justice Act 1988 (UK) came into effect, torture committed outside the United Kingdom was a crime under United Kingdom law, Lord Millett held that by 1973 English courts already possessed extraterritorial jurisdiction in respect of the crimes charged against Senator Pinochet and did not require the authority of statute to exercise it.

1. The second question in Pinochet (No 3) involved state immunity.  Lord Millett observed (at 907-908):

   “Whether conduct contrary to the peremptory norms of international law attracted state immunity from the jurisdiction of national courts, however, was largely academic in 1946, since the criminal jurisdiction of such courts was generally restricted to offences committed within the territory of the forum state or elsewhere by the nationals of that state.”

2. After then discussing subsequent developments in the principles of international law, his Lordship referred to what he described as “the landmark decision” of the Supreme Court of Israel in Attorney-General of Israel v Eichmann (1962) 36 ILR 5.  He said (at 909-911):

   “The court dealt separately with the questions of jurisdiction and act of state.  Israel was not a belligerent in the Second World War, which ended three years before the state was founded.  Nor were the offences committed within its territory.  The District Court found support for its jurisdiction in the historic link between the state of Israel and the Jewish people.  The Supreme Court preferred to concentrate on the international and universal character of the crimes of which the accused had been convicted, not least because some of them were directed against non-Jewish groups (Poles, Slovenes, Czechs and gipsies).
              As a matter of domestic Israeli law, the jurisdiction of the court was derived from an Act of 1950.  Following the English doctrine of parliamentary supremacy, the court held that it was bound to give effect to a law of the Knesset even if it conflicted with the principles of international law.  But it went on to hold that the law did not conflict with any principle of international law.  Following a detailed examination of the authorities,  . . . it concluded that there was no rule of international law which prohibited a state from trying a foreign national for an act committed outside its borders.  There seems no reason to doubt this conclusion.  The limiting factor that prevents the exercise of extraterritorial criminal jurisdiction from amounting to an unwarranted interference with the internal affairs of another state is that, for the trial to be fully effective, the accused must be present in the forum state.
              Significantly, however, the court also held that the scale and international character of the atrocities of which the accused had been convicted fully justified the application of the doctrine of universal jurisdiction.  It approved the general consensus of jurists that war crimes attracted universal jurisdiction.  See, for example, Greenspan’s Modern Law of Land Warfare (1959), p. 420 [scil. p 503], where he writes:

   “Since each sovereign power stands in the position of a guardian of international law, and is equally interested in upholding it, any state has the legal right to try war crimes, even though the crimes have been committed against the nationals of another power and in a conflict to which that state is not a party.”

   This seems to have been an independent source of jurisdiction derived from customary international law, which formed part of the unwritten law of Israel, and which did not depend on the statute.  . . .

   . . .

   The case is authority for three propositions.  (1) There is no rule of international law which prohibits a state from exercising extraterritorial criminal jurisdiction in respect of crimes committed by foreign nationals abroad.  (2) War crimes and atrocities of the scale and international character of the Holocaust are crimes of universal jurisdiction under customary international law.  (3) The fact that the accused committed the crimes in question in the course of his official duties as a responsible officer of the state and in the exercise of his authority as an organ of the state is no bar to the exercise of the jurisdiction of a national court.
              The case was followed in the United States in Demjanjuk v Petrovsky (1985) 603 F.Supp. 1468; affirmed 776 F.2d 571. In the context of an extradition request by the State of Israel the court accepted Israel’s right to try a person charged with murder in the concentration camps of Eastern Europe. It held that the crimes were crimes of universal jurisdiction, observing: “International law provides that certain offences may be punished by any state because the offenders are enemies of all mankind and all nations have an equal interest in their apprehension and punishment.” . . . ” (Emphasis supplied.)

3. Lord Millett next referred to provisions in instruments and to terms of resolutions relating to the human rights regime of the United Nations.  He continued (at 911-912):

   “The trend was clear.  War crimes had been replaced by crimes against humanity.  The way in which a state treated its own citizens within its own borders had become a matter of legitimate concern to the international community.  The most serious crimes against humanity were genocide and torture.  Large scale and systematic use of torture and murder by state authorities for political ends had come to be regarded as an attack upon the international order.  Genocide was made an international crime by the Genocide Convention in 1948.  By the time Senator Pinochet seized power, the international community had renounced the use of torture as an instrument of state policy.  The Republic of Chile accepts that by 1973 the use of torture by state authorities was prohibited by international law, and that the prohibition had the character of jus cogens or obligation erga omnes.  But it insists that this does not confer universal jurisdiction or affect the immunity of a former head of state ratione materiae from the jurisdiction of foreign national courts.
              In my opinion, crimes prohibited by international law attract universal jurisdiction under customary international law if two criteria are satisfied.  First, they must be contrary to a peremptory norm of international law so as to infringe a jus cogens.  Secondly they must be so serious and on such a scale that they can justly be regarded as an attack on the international legal order. 
   . . .

   . . .

   Every state has jurisdiction under customary international law to exercise extraterritorial jurisdiction in respect of international crimes which satisfy the relevant criteria.  Whether its courts have extraterritorial jurisdiction under its internal domestic law depends, of course, on its constitutional arrangements and the relationship between customary international law and the jurisdiction of its criminal courts.  The jurisdiction of the English criminal courts is usually statutory, but it is supplemented by the common law.  Customary international law is part of the common law, and accordingly I consider that the English courts have and always have had extraterritorial criminal jurisdiction in respect of crimes of universal jurisdiction under customary international law.

   . . .

   In my opinion, the systematic use of torture on a large scale and as an instrument of state policy had joined piracy, war crimes and crimes against peace as an international crime of universal jurisdiction well before 1984.  I consider that it had done so by 1973.  For my own part, therefore, I would hold that the courts of this country already possessed extraterritorial jurisdiction in respect of torture and conspiracy to torture on the scale of the charges in the present case and did not require the authority of statute to exercise it.  I understand, however, that your Lordships take a different view, and consider that statutory authority is required before our courts can exercise extraterritorial criminal jurisdiction even in respect of crimes of universal jurisdiction.  Such authority was conferred for the first time by section 134 of the Criminal Justice Act 1988, but the section was not retrospective.  I shall accordingly proceed to consider the case on the footing that Senator Pinochet cannot be extradited for any acts of torture committed prior to the coming into force of the section.”  (Emphasis supplied.)

4. I am unable to read the judgment of the Supreme Court of Israel as suggesting that the doctrine of universal jurisdiction was to be regarded as an “independent source of jurisdiction” for the trial in Eichmann.  The offences in that case were laid under an Israeli statute, the Nazi and Nazi Collaborators (Punishment) Law 1950.  The Supreme Court said that, in enacting that Law, the parliament of Israel (the Knesset) only sought to set out the principles of international law and embody its aims.  The court relied (at 287) on two propositions:

   “(1)   The crimes created by the Law and of which the appellant was convicted must be deemed today as having always borne the stamp of international crimes, banned by the law of nations and entailing individual criminal responsibility.

   (2)   It is the peculiarly universal character of these crimes that vests in every state the authority to try and punish anyone who participated in their commission.”

5. The court dealt extensively (at 298-304) with the second proposition under the heading “Universal Jurisdiction”.  The excerpt from Professor Greenspan’s work, which is set out in Lord Millett’s speech, was cited by the court (at 301) as a view in support of another expert’s opinion that even a neutral country has jurisdiction to try a person for a war crime.  The court concluded (at 304):

   “The State of Israel therefore was entitled, pursuant to the principle of universal jurisdiction and in the capacity of a guardian of international law and an agent for its enforcement, to try the appellant.”

6. The Supreme Court of Israel plainly meant that the enactment of the Law in 1950 by the Knesset was a justified exercise of the principle of universal jurisdiction.  It was, after all, the offences under that Law that the State of Israel prosecuted.

7. I turn now to the American cases cited by Lord Millett.  In Re Demanjuk 603 F Supp 1468 (ND Ohio 1985) the court ruled that it had jurisdiction to conduct a hearing to determine whether the respondent was extraditable to Israel. The court expressly did not find that the respondent was charged with war crimes or genocide. Battisti CJ did not refer in his reasons for ruling to Eichmann. 

8. Demanjuk v Petrovsky 776 F2d 571 (6^th Cir 1985) was an appeal from the denial of a petition for a writ of habeas corpus. The appellant/petitioner was the respondent in the other case just mentioned. It appears from this report that Battisti CJ had subsequently certified for extradition. No appeal was available from that order. The only method of review was by collateral habeas corpus proceedings. The petition for habeas corpus was denied by Battisti CJ: 612 F Supp 571.

9. The Court of Appeals affirmed that order.  The appellant was charged under Israel’s Nazi and Nazi Collaborators (Punishment) Law 1950 with having “murdered tens of thousands of Jews and non-Jews” in Poland.  The United States extradition statute required that the crime for which extradition is sought be one provided for by treaty between the requesting state and the United States.  The court held that the offence of “murder” in the extradition treaty with Israel included the crimes charged against the appellant and that the requirement of double criminality was met.

10. The United States statute also required that the extradition crime be committed “within the jurisdiction of [the] foreign government”.  The court said (at 580):

    “The question is whether the murder of Jews in a Nazi extermination camp in Poland during the 1939-1945 war can be considered, for purposes of extradition, crimes within the jurisdiction of the State of Israel.”

    The court noted (at 581) the decision in Eichmann, referred (at 582) to the definition of “universal jurisdiction” in the Restatement of the Law and, importantly, observed (at 582) that Israel was seeking to enforce “its criminal law” (emphasis added).  The court held (at 583) that the State of Israel had jurisdiction to punish for war crimes and crimes against humanity committed outside of its geographic boundaries.

11. In my opinion, Eichmann and the two American cases provide no support for the suggestion that universal jurisdiction provides, by itself, a source of jurisdiction for municipal courts to try international crimes.  The doctrine of universal jurisdiction was discussed by Brennan J and Toohey J in Polyukhovich v Commonwealth (1991) 172 CLR 501. Brennan J pointed out (at 563) that a municipal law may provide for the exercise of a universal jurisdiction recognized by international law, and said (at 576) that “a statutory vesting of the jurisdiction would be essential to its exercise by an Australian court”. Toohey J commenced a more extensive discussion of universal jurisdiction by analysing “principles of jurisdiction which provide Australia with authority to prosecute” crimes existing in international law. His Honour explained universal jurisdiction, making use of the writing of academics (the references to which I shall omit), in the following passage (at 658-659):

    “The term “jurisdiction” has different meanings in international and municipal law.  In international law it is used in various ways but it may be taken to refer to “a state’s general legal competence and is an aspect of state sovereignty”:  . . . Relevantly, it “refers to a state’s legitimate assertion of authority to affect legal interests”: . . . The term has legislative, adjudicatory and enforcement dimensions: . . .  We are here concerned with Australia’s authority to make criminal laws applicable to certain persons, events or things with the aim of dealing with an international law crime.  We are concerned, therefore, not only with Australia’s legislative power in constitutional law, but also with Australia’s enforcement and adjudicatory authority in international law because the Commonwealth relies on that authority to support its legislative power.”

12. Toohey J identified the universality principle as one of the bases upon which a state may exert authority over an individual in international law.  He continued (at 659):

    “[It] permits jurisdiction to be exercised over a limited category of offences on the basis that the offender is in the custody of the prosecuting state.  The jurisdiction is based on the notion that certain acts are so universally condemned that, regardless of the situs of the offence and the nationality of the offender or the victim, each state has jurisdiction to deal with perpetrators of those acts.”

13. Polyukhovich is often referred to as the War Crimes Act Case, and the High Court was there concerned with the question whether an amendment to that Act was beyond the Commowealth’s legislative power under the Constitution. Nonetheless, Brennan J’s statement is quite explicit, and Toohey J proceeds on the assumption that any prosecution of an individual for an international crime in a municipal court will take place under a municipal law.

14. This brings me to the last passages that I have highlighted in Lord Millett’s speech.  Even if it be accepted that customary international law is part of the common law, no one has identified a rule of customary international law to this effect: that courts in common law countries have jurisdiction in respect of those international crimes over which States may exercise universal jurisdiction.  That is hardly surprising.  Universal jurisdiction conferred by the principles of international law is a component of sovereignty (Polyukhovich per Toohey J at 661), and the way in which sovereignty is exercised will depend on each common law country’s peculiar constitutional arrangements.

15. In England and in Australia crimes are distinguished into common law and statutory crimes, according to whether the legal source of, and the authority for, the statement that particular conduct is criminal is found in common law or statute.  In this context the phrase “common law” means law created by the decisions of judges, and I find it odd to speak, as his Lordship does, of the “usually statutory” jurisdiction of the English criminal courts being “supplemented by the common law”.  Courts are no longer able to create new criminal offences: Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1973] AC 435. 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.

16. Section 1.1. of the Criminal Code (Cth) provides:

    “1.1     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.  Since that date genocide cannot be recognised as a common law offence under Commonwealth law.

17. This leaves for consideration the law of the Australian Capital Territory. Section 26 of the Magistrates Court Act 1930 (ACT) (“the Act”) provides for the laying of informations in respect of “an indictable offence or an offence which may be dealt with summarily as provided in section 19”. The receipt of such an information is a necessary condition precedent to the grant by the registrar of the Magistrates Court of a summons or warrant under s 12(1) of the Act. The registrar’s refusal to issue process under s 12(1) was the subject of the application for an order nisi dismissed by Crispin J.

18. Since the statute law of the ACT makes no express provision for an offence of genocide, s 19 of the Act has no application. The phrase “indictable offence” is unhelpfully defined by s 5(1) of the Act as “an offence which may be prosecuted before the Supreme Court by charge or indictment”. However, s 477(1) of the Crimes Act 1900 (ACT), which permits the summary disposal of certain cases, acknowledges that “a common law offence” under the law of the ACT is an indictable offence. Thus the threshold question on the application for the order nisi was: is genocide such a common law offence?

19. It may be doubted that there are any common law offences under the law of the ACT that did not exist as part of the law of New South Wales continued in force after 1 January 1911 by virtue of s 6 of the Seat of Government Acceptance Act1909 (Cth). The emergence after the Second World War of the international crime of genocide no doubt imposes non-derogable obligations on Australia under the law of nations. The exercise of universal jurisdiction to prosecute such an offence is a matter for the Commonwealth, yet Parliament has expressly abolished common law offences under Commonwealth law. The courts of the States and the Territories can have no authority for themselves to proscribe conduct as criminal under the common law simply because it has now become recognised as an international crime with the status of jus cogens under customary international law.  In any event, common law offences are anathema in the so-called Griffith Code jurisdictions: Queensland, Western Australia, Tasmania and the Northern Territory.  It would be absurd if the common law countenanced the selective exercise by municipal courts of a universal jurisdiction under international law.

20. It follows that, in my opinion, genocide is not an offence in respect of which an information may be laid under the Act, and the registrar had no authority to issue the process requested. I would accordingly dismiss the appeal from Crispin J.

21. If, however, I am wrong and genocide is an offence in the ACT, then the appeal must nonetheless be dismissed for the reasons given by Merkel J. So far as the other matter before the Court is concerned, I agree with his Honour and with the order he proposes.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             1 September 1999

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 5 OF 1999 AND S 23 OF 1999

BETWEEN:	WADJULARBINNA NULYARIMMA AND OTHERS Appellant
AND:	PHILLIP THOMPSON Respondent
AND BETWEEN:	KEVIN BUZZACOTT Applicant
AND:	ROBERT HILL, MINISTER FOR THE ENVIRONMENT First Respondent
HON ALEXANDER DOWNER, MINISTER FOR FOREIGN AFFAIRS Second Respondent
COMMONWEALTH OF AUSTRALIA Third Respondent
JUDGES:	WILCOX, WHITLAM AND MERKEL JJ
DATE:	1 SEPTEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

MERKEL J:

Introduction

1. There are two matters before the Full Court.  Each matter involves a claim by Aboriginal persons that conduct engaged in by certain Ministers of the Commonwealth or Commonwealth parliamentarians is contributing to the destruction of the Aboriginal people as an ethnic or racial group.

2. The first matter (Re Thompson) involves claims that the extinguishment of native title constitutes the crime of genocide.  The second matter (Buzzacott v Hill) involves claims that the failure of the Commonwealth, and certain of its Ministers, to proceed with World Heritage listing of the lands of the Arabunna people is an act of genocide, a breach of fiduciary duty and is otherwise unlawful.

3. In each matter the applicants are seeking to remedy wrongs of the past committed against the Aboriginal people.  In some instances litigants, even where assisted or represented by legal advisers, have unrealisable expectations of the capacity of the law to remedy past wrongs.  However, the Court’s role is to hear and determine, in accordance with law, controversies arising between parties.  It is not within the Court’s power, nor is its function or role, to set right all of the wrongs of the past or to chart a just political and social course for the future.

4. I have no hesitation in recognising the dispossession and alienation of the Aboriginal people from their land in Australia.  The decision of the High Court in Mabo v Queensland [No 2] (1992) 175 CLR 1 was a belated recognition by the common law of Australia of the rights and interests held by Aboriginal people in respect of the land they had occupied and used in accordance with their culture, traditions and laws prior to the acquisition of British sovereignty over Australia. As a consequence of that decision, and the Native Title Act 1993 (Cth) (“the NT Act”), which was passed to give effect to it, some Aboriginal people in Australia are entitled to have their traditional native title recognised and given effect to under Australian law.

5. However, neither of the two matters before the Full Court rely upon a claim to native title under the NT Act or under the common law. Rather, in each matter the applicants seek to rely upon entirely separate and discrete entitlements allegedly arising under the general law. Thus, whether the entitlements claimed exist, or can be recognised depends upon principles of Australian law applicable to all persons within Australia, whether they are Aboriginal persons or not. The applicants seek to resort to those principles, and those principles alone, in pursuing their claims. The role of the Court is to adjudicate upon those claims in accordance with law. In doing so the Court is to determine, in accordance with its judicial function, what the law is rather than what the law should be. The latter function is that of the legislature.

6. I agree with the observation of Kirby J in Thorpe v Commonwealth [No 3] (1997) 71 ALJR 767 at 775 that

   “The law which has often been an instrument of injustice to Aboriginal Australians can also, in proper cases, be an instrument of justice in the vindication of their legal rights.”

7. However, a court can only give effect to or vindicate “legal rights” in accordance with law in a matter properly before it.  As was said by Brennan J in Re Citizen Limbo (1989) 92 ALR 81 at 82-83:

   “…when one comes to a court of law it is necessary always to ensure that lofty aspirations are not mistaken for the rules of law which courts are capable and fitted to enforce. It is essential that there be no mistake between the functions that are performed by the respective branches of government.  It is essential to understand that courts perform one function and the political branches of government perform another.  …it would be a mistake for one branch of government to assume the functions of another in the hope that thereby what is perceived to be an injustice can be corrected.  Unless one observes the separation of powers and unless the courts are restricted to the application of the domestic law of this country, there would be a state of confusion and chaos which would be antipathetic not only to the aspirations of peace but to the aspirations of the enforcement of any human rights.”

   The proceedings

   Re Thompson

8. The appellants, or their representatives, attended at the Magistrates Court of the Australian Capital Territory on 6 July 1998 and requested that the Registrar issue warrants for the arrest of John Winston Howard (the Prime Minister), Timothy Andrew Fischer (the Deputy Prime Minister), Brian Harradine (a Senator) and Pauline Lee Hanson (a member of the House of Representatives).  The appellants’ warrants of arrest were sought in respect of informations which contained charges that those persons, acting in their respective capacities, in formulating or supporting the Commonwealth government’s “Ten Point plan” and the Native Title Amendment Bill 1997 (Cth), had committed the criminal offence of genocide.

9. The Registrar declined to issue the warrants on the ground that the offence of genocide was not known to the law of the Australian Capital Territory.  The appellants applied to the Supreme Court of the Australian  Capital Territory for an order nisi requiring the Registrar to show cause why an order should not be made requiring him to issue the warrants and the informations.

10. The application was heard by Crispin J in the Supreme Court of the Australian Capital Territory: see Re Thompson; Ex parte Nulyarimma (1998) 136 ACTR 9. His Honour (at 30) concluded that “no offence of genocide is known to the domestic law of Australia” and, as a consequence, the Registrar’s decision was not capable of being impugned. Accordingly, Crispin J stated that he would dismiss the application on that ground. However, in deference to the other arguments put to him Crispin J also considered whether, assuming genocide was an offence under Australian law, the application would fail in any event on the basis that the contemplated prosecutions would be doomed to failure. His Honour stated that it would not be an appropriate exercise of his discretion to make an order nisi absolute if the facts relied upon were not capable of supporting the charge the appellants wished to bring. Crispin J concluded that there was nothing in the extensive material placed before him “to suggest that there is an arguable case” in relation to the appellants’ allegations of genocide.

11. Accordingly, the application to review the Registrar’s decision was dismissed.  The appellants have appealed from the judgment of Crispin J to a Full Court of the Federal Court.

12. The material before the Full Court included the extensive material relied upon by the appellants before Crispin J.  In addition, without objection from any of the parties, a number of the individual appellants addressed the Court on their personal experiences in order to explain, and enable the Court to better appreciate the basis for their contentions that the conduct, about which they were complaining, constituted genocide.

    Buzzacott v Hill

13. The appeal from Crispin J in Re Thompson was heard together with a motion to strike out another proceeding in the Court which sought, inter alia, to found a civil cause of action on the basis of genocide, breach of fiduciary duty and other allegedly unlawful conduct.  That proceeding was commenced by Kevin Buzzacott (“the applicant”) against Senator Robert Hill (in his capacity as the Commonwealth Minister for the Environment), Alexander Downer (in his capacity as Commonwealth Minister for Foreign Affairs), and the Commonwealth of Australia (“the respondents”).

14. The applicant commenced the proceeding “in a representative capacity for all the Arabunna people”.  He claimed that the failure of the respondents to apply for World Heritage listing for the lands of the Arabunna people (which included Lake Eyre in South Australia) constituted, under international and Australian law, unlawful conduct including genocide which gave rise to an entitlement in the applicant, representing the Arabunna people, to mandatory injunctions compelling the respondents to “forthwith proceed with the World Heritage Listing of the Arabunna lands”.  Damages were also claimed.

15. The respondents moved the Court to dismiss or permanently stay the proceeding on the grounds that it did not disclose a reasonable cause of action, was frivolous and vexatious and constituted an abuse of the process of the Court.  The motion, which was referred to and came on for hearing before another Full Court, was adjourned by that Court to be dealt with by this Full Court when hearing the appeal in Re  Thompson.

Genocide

1. Senior and junior counsel, appearing pro bono for the appellants in Re Thompson, and also for the applicant, put the same argument on genocide in each proceeding.  In Re Thompson, before Crispin J, a number of different grounds were relied upon by the appellants to contend that genocide was a criminal offence under Australian law.  However, before the Full Court the appellants relied only upon one ground.  That ground can be summarised as follows:

   ·    the prohibition against genocide is a customary norm of international law;

   ·    Australian municipal law incorporates customary norms of international law without the need for legislation;

   ·    the universal crime of genocide, as a customary norm of international law, has been incorporated into the common law of Australia.

2. Thus, so it was contended on behalf of the appellants, the universal crime of genocide being incorporated as part of the common law of Australia can give rise to criminal liability for acts of genocide (wherever committed) which can be tried in any superior court of record in Australia.  Counsel for the appellants made it quite clear that their submissions were founded on customary international law and not conventional international law which is the law of treaties cf Dietrich v The Queen (1992) 177 CLR 292.

3. Counsel appearing for the respondents contended that customary international law and, in particular, the universal crime of genocide under customary international law can only form part of the law of Australia if legislation by an Australian Parliament enacts the law.  To date, no such enactment has occurred.  Accordingly, so it is contended, the offence of genocide is not known in Australian law and cannot give rise to any criminal or civil liability in an Australian court.  Counsel also submitted that the material in both cases does not raise an arguable claim of genocide in any event.  Counsel appearing for the Registrar in Re Thompson contended that whether or not genocide was part of Australian law (about which the Registrar put no submission) the appeal must fail as the material before the Registrar was such that he was bound in law to refuse to issue the warrants.

4. Although the parties were in dispute over the status of the prohibition against genocide under Australian law they were in agreement, correctly in my view, on its status as a universal crime under international law.  In that regard, it was common ground that genocide, as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“the Genocide Convention”) has been recognised, since at least 1948, as a crime under customary international law over which nation States may exercise universal jurisdiction.

5. Articles II, III and IV of the Genocide Convention, which define conduct constituting the offence of genocide and associated offences, provide as follows:

   “Article II
   In the present Convention, 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.”

6. It is to be noted that the definition includes not only the destruction of a national, ethnical, racial or religious group through mass killings but also through a co-ordinated plan of different actions aiming at the destruction of essential foundations of the life of the group with the aim of its annihilation: see Lemkin: Genocide ‘Crime under International Law’ (1947) 41 American Journal of International Law 145 at 147.

7. It was also common ground between the parties, correctly in my view, that:

   ·    the prohibition of genocide is a peremptory norm of customary international law (jus cogens) giving rise to non derogable obligations erga omnes that is, enforcement obligations owed by each nation State to the international community as a whole: see M Cherif Bassiouni “International Crimes: Jus Cogens and Obligatio Erga Omnes”, Law and Contemporary Problems Vol 59: No 4 (1996) 63 at 68, Lee A Steven “Genocide and the Duty to Extradite or Prosecute: Why the United States is in Breach of Its International Obligations”, Viriginia Journal of International Law Vol 39 (1999) 425 at 437-439 and Brownlie Principles of Public International Law, 4^th ed 1990 at 512-515;

   ·    although Australia ratified the Genocide Convention, and that ratification was approved by the Commonwealth Parliament by the enactment of the Genocide Convention Act 1949 (Cth), neither the ratification or its legislative approval as such, had the effect of incorporating the Genocide Convention as part of Australia’s municipal law: see Dietrich at 305, 359-360, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287-288, 298 and 315-316 and Kruger v Commonwealth (1997) 190 CLR 1 at 70-71, 87 and 159.

8. The area of dispute between counsel for the respective parties related to 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.  That issue involves consideration of the circumstances in which customary international civil and criminal law can become part of the municipal law of Australia.

   Incorporation or transformation?
   (a)       England

9. The two schools of thought as to the manner in which rules of international customary law can become part of English law were explained by Lord Denning M.R. in Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 Q.B. 529 at 553-554 as follows:

   “One school of thought holds to the doctrine to incorporation.  It says that the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament.  The other school of thought holds to the doctrine of transformation .  It says that the rules of international law are not to be considered as part of English law except in so far as they have been already adopted and made part of our law by the decisions of the judges, or by Act of Parliament, or long established custom.  The difference is vital when you are faced with a change in the rules of international law.  Under the doctrine of incorporation, when the rules of international law change, our English law changes with them.  But, under the doctrine of transformation the English law does not change.  It is bound by precedent.  It is bound down to those rules of international law which have been accepted and adopted in the past.  It cannot develop as international aw develops.

   (i)The doctrine of incorporation. The doctrine of incorporation goes back to 1737 in Buvot v. Barbuit (1736) 3 Burr. 1481; 4 Burr. 2016; sub nom. Barbuit’s case in Chancery (1737) Forr. 280, in which Lord Talbot L.C. (who was highly esteemed) made a declaration which was taken down by young William Murray (who was of counsel in the case) and adopted by him in 1764 when he was Lord Mansfield C.J. in Triquet v. Bath (1764) 3 Burr. 1478:

   ‘Lord Talbot declared a clear opinion – ‘That the law of nations in its full extent was part of the law of England,…that the law of nations was to be collected from the practice of different nations and the authority of writers.’  Accordingly, he argued and determined from such instances, and the authorities of Grotius, Barbeyrac, Binkershoek, Wiquefort etc., there being no English writer of eminence on the subject.’

   That doctrine was accepted, not only by Lord Mansfield himself, but also by Sir William Blackstone, and other great names, too numerous to mention.  In 1853 Lord Lyndhurst in the House of Lords, with the concurrence of all his colleagues there, declared that…’the law of nations, according to the decision of our greatest judges, is part of the law of England’: see Sir George Cornewall Lewis’s book, Lewis on Foreign Jurisdiction (1859), pp. 66-67.

   (ii)The doctrine of transformation. The doctrine of transformation only goes back to 1876 in the judgment of Cockburn C.J. in Reg. v. Keyn (1876) 2 Ex.D. 63, 202-203:

   ‘For writers on international law, however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it…  Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorise the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law.  In so doing, we should be unjustifiably usurping the province of the legislature.’

   To this I may add the saying of Lord Atkin in Chung Chi Cheung v. The King [1939] A.C. 160, 167-168:

   ‘So far, at any rate, as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law.’”

10. The incorporation approach treats customary international law, upon its proof as such and without more, as part of the common law of England.  The transformation theory requires a further step; a rule of international law only becomes a part of English law when it is accepted and adopted by judicial decision as such (“common law adoption”) or by legislation (“legislative adoption”).  The point of practical distinction between the incorporation and common law adoption approaches is that under the latter approach the rule of international law is adopted upon a court determining that the rule is not inconsistent with existing legislation, the common law, or public policy and that it is therefore appropriate that it should form part of the common law of England.  An additional question arises to whether international criminal law can only become part of municipal law  by legislative adoption.

11. Counsel for the appellants and Mr Buzzacott contend that, either by incorporation or common law adoption the prohibition of genocide has become, or ought now to be received as, part of the common law of Australia.  Counsel for the respondents contend 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.  In order to resolve the competing contentions it is necessary to consider the origin and application of each of the approaches relied upon by the parties.

1. I have made the above observations as I am conscious of the danger of raising unrealistic expectations about what might be achieved by recourse to the law to secure what might be perceived to be just outcomes for the Aboriginal people of Australia.  Whilst, understandably, many Aboriginal people genuinely believe that they have been subjected to genocide since the commencement of the exercise of British sovereignty over Australia last century, it is another thing altogether to translate that belief into allegations of genocide perpetrated by particular individuals in the context of modern Australian society.  In the present matter none of the allegations relied upon by the appellants are capable of raising an arguable case that any of the persons the subject of the proposed warrants and informations have engaged in any conduct that is capable of constituting the crime of genocide under international and domestic law.

2. Accordingly, for the above reasons I am satisfied that:

   ·    

   the appellants have not established that they are entitled to the issue of the warrants and informations they seek;

   
   
   

   ·    

   the Registrar was bound in law to refuse to issue the warrants albeit that he did so on a basis which was wrong in law;

   
   
   

   ·    Crispin J was correct in dismissing the application for an order in the nature of mandamus albeit that one of the bases relied upon by him in doing so was wrong in law.

   Buzzacott v Hill & Ors

3. The Application, inter alia, alleges that the respondents have acted unlawfully in declining to proceed with an application by Australia to place the lands of the Arabunna people and, in particular, lands in the Lake Eyre region on the World Heritage List.  It is alleged that the failure to proceed with an application for World Heritage listing was “for political reasons involving the vested interests of certain big mining, pastoral and other businesses” and because the first respondent “well knew in 1998 that he would announce the go ahead for another uranium mine (and waste dump) at Beverly and a radioactive waste dump at another northern location in South Australia”.  It was alleged that, as a result of that conduct, the respondents had committed acts of genocide, breached fiduciary obligations and the duty of care owed to the Arabunna people and acted with bad faith towards the Arabunna people.

4. The relief sought was:

   ·    

   a mandatory injunction compelling the respondents “forthwith to proceed with the World Heritage listing of the Arabunna lands”;

   
   
   

   ·    

   an injunction restraining the respondents from permitting any activities on Arabunna lands by non-Arabunna persons “which may in any way effect the World Heritage values of the Arabunna lands”;

   
   
   

   ·    damages.

5. The respondents contended that the Application should be struck out and the proceeding be dismissed or permanently stayed primarily on the ground that the claims could not give rise to any reasonable cause of action known to the law.  It was contended that:

   ·    

   the World Heritage listing sought by the applicant was pursuant to Art 11 of the Convention for the Protection of the World Cultural and Natural Heritage (23 November 1972, ATS 1975 No 47) (“the World Heritage Convention”);

   
   
   

   ·    

   the only obligations arising under the World Heritage Convention are obligations owed as between the States who are parties to it under the international law of treaties with the consequence that the Convention cannot be a source of any rights or obligations which are enforceable by a person in an Australian court;

   
   
   

   ·    

   a failure by any of the respondents to take steps to have property included in the World Heritage List established under the Convention is not justiciable;

   
   
   

   ·    

   accordingly, in so far as the applicant’s causes of action and claims for relief, including damages, rely upon the World Heritage Convention they must fail.

   
   
   

6. With respect to the applicant’s claim for “damages” based on other alleged causes of action the respondents’ submission is that the claim is bound to fail as:

   ·    no civil cause of action is known in Australia for acts of genocide and, in any event, the facts raised are not capable of sustaining a claim of genocide;

   ·    no fiduciary relationship, fiduciary duties or duties of care known to the law can arise out of the matters pleaded in the Application.

7. In Thorpe (at 774-775) Kirby J stated the relevant principles to be applied on a strike out application analogous to that that has been made in the present case. His Honour said:

   “Setting aside, striking out, summarily dismissing or permanently staying proceedings of a litigant who has come to a court of law, are self-evidently serious steps.  They are to be reserved to a clear case.  If there is any doubt, a court should err on the side of allowing the claim to proceed.  Evidence at trial may sometimes lend colour and strength to a claim.  Reformulation of a pleading should normally be permitted where justice requires that course, particularly where a party does not have the assistance of legal representation.  A court will ordinarily provide some assistance in such a situation although not to the point of unfairly disadvantaging the other party or losing either the reality or appearance of neutrality and impartiality which is the hallmark of the judiciary under the Australian Constitution and under international human rights law.

   Even if a party makes good its attack on another’s pleading, a court will ordinarily permit the opponent to reframe the pleading so long as it is clear that there is point in doing so and that the further time and opportunity will have utility.  The guiding principle is doing what is just.  Courts, particularly today, strive to uphold efficiency and economy in the disposal of proceedings before them.  But they also remember that pleadings are a means to the end of justice according to law.  Pleadings are the servants, not the masters of the judicial process.”

   
   
   

   See also Lindon v Commonwealth (1996) 136 ALR 251, Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129.

   The World Heritage Convention

8. The World Heritage Convention, and the World Heritage Properties Conservation Act 1983 (Cth) (“the World Heritage Act”) which gave effect to the Convention, were considered by the High Court in Commonwealth v Tasmania (1983) 158 CLR 1 (“the Tasmanian Dams case”), Richardson v Forestry Commission (1988) 164 CLR 261 and Queensland v Commonwealth (1989) 167 CLR 232.

9. In the joint judgment (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) in Queensland v Commonwealth (at 235-236) the World Heritage Convention and the World Heritage Act were explained as follows:

   “The Act provides the legislative framework for giving effect to Australia’s obligations under the Convention for the Protection of the World Cultural and Natural Heritage (‘the Convention’): see The Commonwealth v. Tasmania (‘the Tasmanian Dam Case’).  A copy of the English text of the Convention is set out in a schedule to the Act.  The Convention imposes on each State Party a duty to ensure the identification of cultural heritage and natural heritage situated on its territory (Arts 3 and 4; see also Art. 5(d)), ‘cultural heritage’ and ‘natural heritage’ being so defined as to require that any property coming within either definition be of ‘outstanding universal value’: Arts 1 and 2.  Each State Party is obliged to submit to the World Heritage Committee an inventory of the properties forming part of the cultural heritage and natural heritage situated in its territory which it considers suitable for inclusion in the ‘World Heritage List’: Art. 11 par. 1.  The List is to be established and kept up-to-date by the Committee on the basis of the inventories submitted by the State Parties and is to contain properties which form part of the cultural heritage or natural heritage and which the Committee ‘considers as having outstanding universal value in terms of such criteria as [the Committee] shall have established’: Art.11, par. 2.  In addition to the duties of identifying properties forming part of the cultural heritage and natural heritage and of submitting inventories of such properties for inclusion in the World Heritage List, each State Party is under a duty to take measures for the protection, conservation, presentation and transmission to future generations of the cultural, heritage and natural heritage: Arts 4 and 5.  The framers of the Act have sought to restrict the application of the provisions of the Act authorizing the creation of regimes of control over properties to those properties in respect of which the Convention imposes on Australia an obligation of protection and conservation.”

10. The World Heritage Act, which was enacted to give effect in Australia to its obligations under the World Heritage Convention, is primarily concerned with ensuring protection and conservation of property defined in s 3A as “identified property”.

11. “Identified property” is defined as property which is subject to an inquiry to determine whether it forms part of the cultural or natural heritage, is subject to World Heritage list nomination, is included in the World Heritage list or is declared by regulations to form part of the cultural or natural heritage. Restrictions might be imposed on “identified property” by a Proclamation made by the Governor General where such property is being or is likely to be damaged or destroyed: see ss 6-11 and Queensland v Commonwealth at 235-238. Additional protection is given to Aboriginal sites but only where such sites are situated within identified property: see ss 8 and 11.

12. As the Arabunna lands do not fall within any of the categories of “identified property”, any rights which the applicant can seek to claim or enforce in the present proceeding must be limited to such rights (if any) as he has in relation to conduct of the Executive government under the World Heritage Convention, rather than under the World Heritage Act.

13. The World Heritage Convention imposes a duty on each State party to identify and delineate cultural heritage properties situated within its territory which are suitable and appropriate for protection and conservation in accordance with the Convention.  In Richardson, Mason CJ and Brennan J (at 290), after observing that the Convention does not sustain the view that the duty to ensure protection does not arise or attach to land until the State identifies and delineates that land as part of the heritage, added:

    “This is not to say that a failure on the part of a State to protect land, which is ultimately identified as part of the heritage, pending that identification is a breach of duty capable of enforcement.  It is for each State to determine what it will do by way of protecting a particular property pending resolution of its status as part of the heritage.  But the taking of action by a State to protect or conserve a particular property in its territory pending resolution of the status of that property as part of the heritage is to carry out and give effect to the Convention because the taking of the action is incidental to the State’s duty to ensure protection of the heritage and to the attainment of the object of the Convention.”

14. The joint judgment in Queensland v Commonwealth (at 238-239) also observed that, although the World Heritage Convention (as with other treaties of independent States) gives rise to international obligations, those obligations are not administered in or determined or enforced by the Municipal Courts.

15. Article 11 of the World Heritage Convention provides for each State, in so far as possible, to submit to the World Heritage Committee property situated within its territory and suitable for inclusion in the World Heritage List.  In Richardson (at 296) Mason CJ and Brennan J said that the ultimate decision as to whether any property should be proposed for inclusion in the World Heritage List is to be made by the Executive government based upon a

    “calculus of factors, including factors which are cultural, economic and political.”

16. Similar observations were made in the Full Federal Court in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 at 278-279 per Bowen CJ and at 306-308 per Wilcox J. In Peko Wallsend Ltd the Full Court held that, although certain decisions of the Executive government in the exercise of prerogative power may be justiciable in the courts, the complex policy considerations involved in a decision to nominate a property for inclusion in the World Heritage List resulted in such a decision being non-justiciable.  The policy matters referred to were issues relating to “environment, the rights of Aborigines, mining and the impact on Australia’s economic position of allowing or not allowing mining as well as matters affecting private interests” (Bowen CJ at 279) and that the decision “primarily involved Australia’s international relations” and, rather than relating essentially to the personal circumstances of any individual, “concerned a substantial area of land which the Government regarded as being of national, indeed international, significance and in relation to which many people had concerns of various types” (Wilcox J at 307).  Shephard J (at 280) agreed generally with Bowen CJ and Wilcox J.

17. Plainly, a decision not to proceed with World Heritage listing of a particular property involves the same, or substantially similar, categories of policy considerations as a decision to proceed with such a listing.  Accordingly, for the reasons given in Peko-Wallsend, the decision sought to be impugned in the present case is not justiciable, as such, in a Municipal Court.

18. However, there are additional difficulties with seeking to review a decision not to apply for the listing of a particular property. The nomination by Australia to list a property on the World Heritage List qualifies the property as an “identifiable property” under s 3A of the World Heritage Act and therefore capable of being subject to the restrictions imposed on its use and development if a Proclamation is made by the Governor-General under the Act. Accordingly, a decision to nominate a property for World Heritage listing can potentially affect the interests of persons in relation to the property nominated. I say “potentially” as the interests can only be affected if a Proclamation is made under the Act. However, a decision not to apply for a listing has no consequences for the property under the World Heritage Act save that it is remains unaffected by the Act. Thus, being one step further removed from a Proclamation, it is even more difficult to contend that any person’s rights or interests are affected by a decision not to nominate a property for World Heritage listing.

19. Further, as was pointed out earlier in these reasons in respect of the Genocide Convention, a Convention does not form part of the municipal law of Australia.  Accordingly, it cannot be relied upon as conferring any justiciable right upon an individual: see Simsek v Macphee (1982) 148 CLR 636 at 641 per Stephen J, Koowarta at 224 per Mason J.  The obligations relied upon in the present case arise out of duties owed under the World Heritage Convention under international law by States, and not to or by individuals.  In Tasmanian Wilderness Society Inc v Fraser (1982) 153 CLR 270 Mason J (at 274) pointed out that a breach of a duty owed under the World Heritage Convention “is not a matter justiciable at the suit of a private citizen”. Further, as was said by Mason CJ and Deane J in Teoh (at 287):

    “…a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.”

20. See also Teoh at 298 per Toohey J, at 304 per Gaudron J and at 316 per McHugh J.

21. Their Honours use of the term “direct” implicitly acknowledges the indirect role of treaties in municipal law.  For example, international standards have been drawn upon to influence the development of the common law: see Mabo v Queensland at 42-43; Dietrich v The Queen (1992) 177 CLR 292 at 306, 321, 360 and Jago v District Court of New South Wales (1988) 12 NSWLR 558 at 569. In Mabo [No 2] Brennan J (at 42), after observing that the common law does not necessarily conform with international law, said that international law is a “legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights”. Legislation is construed on the basis that Parliament is to be taken not to intend to remove the fundamental rights and freedoms represented by those international standards unless the legislation does so expressly or by necessary implication: see Coco v The Queen (1994) 179 CLR 427 at 435-437 and Bropho v Western Australia (1990) 171 CLR 1 at 17-18. Also, failure to have regard to a material treaty obligation can lead to the vitiation of certain decisions made by government authorities or bodies under Commonwealth legislation: Teoh.

22. In the present case the indirect role of conventional international law is of no avail to the applicant as his claims rely on the World Heritage Convention as a direct source of individual rights and obligations.

23. It follows from the foregoing discussion that, in so far as the Application seeks relief to compel any of the respondents to proceed with the World Heritage listing of the Arabunna lands or claims damages as a result of the failure of the respondents to proceed with the World Heritage listing of those lands, it must fail as it relies upon non-justiciable claims.

    Fiduciary duty

24. In Mabo [No 2] (at 199-205) Toohey J considered the circumstances in which a fiduciary duty may be owed by the Crown with respect to the lands of indigenous people.  In Thorpe (at 775) Kirby J noted that the concept considered by Toohey J of a fiduciary duty arising “out of the power of the Crown to extinguish traditional title by alienating the land or otherwise” (Mabo [No 2] at 205) has not gathered the support of a majority in the High Court. Whilst that consideration could not, of itself, result in such a claim being struck out on a pleading motion, Toohey J’s view cannot assist the applicant in the present case as his claim, as set out in the Application, is not based upon the extinguishment, directly or indirectly, of a native title right or interest: see s 223 of the Native Title Act 1993 (Cth).

25. Rather, it is alleged by the applicant that the respondents’ failure to proceed with the World Heritage listing of the lands of the Arabunna people is likely to lead to uranium mining and a radioactive waste dump at sites proximate to those lands, which will cause harm to the lands and culture of the people.  The difficulty confronting the applicant on that claim is that, as stated above, it is founded upon an alleged right, interest or duty based on the World Heritage Convention which cannot operate as a direct source of any individual rights or obligations under municipal law.

26. An alternative view of the fiduciary duty owed by the Crown to indigenous people was considered by Professor Finn (now Justice Finn) in PD Finn, Essays on Law and Government Vol 1 1995 at 18-19 and PD Finn in ““The Forgotten ‘Trust”: The People and the State” in Cope, Equity Issues and Trends 1995 at 138.  It was suggested that in some circumstances the Crown and its agencies, when exercising public power effecting “Aboriginal rights” may be obliged to act fairly as between the indigenous and the non-indigenous communities; see for example Te Runanganui o Te Ika Wheuna Inc Society v Attorney-General [1994] 2 NZLR 20 at 24. The analogy was drawn between the exercise of public power affecting classes of the community possessing different rights inter se and a fiduciary who is obliged to act fairly as between different classes of beneficiary in taking decisions which affect the rights of the classes inter se.  However, even on that view in the present case the pre-condition, being the exercise of “public power” in a manner that affects “Aboriginal rights”, is absent as the source of the right affected is said to be the World Heritage Convention.

1. Further, although the World Heritage Convention and the World Heritage Act, provide for protection of Aboriginal cultural sites as part of world cultural heritage, their ambit is protection of that heritage for the benefit of the national and international community. Thus, even putting aside the difficulty of reliance upon the Convention as a source of any fiduciary obligation, neither the Convention, or the legislation to give effect to it, treat the indigenous people of Australia, as such, as being persons whose special interests are being protected by properties being nominated for World Heritage Listing.

2. Accordingly, for the foregoing reasons the claims for relief based on fiduciary duty do not give rise to arguable causes of action and are to be struck out.

   Duty of care

3. The essential elements for a cause of action in negligence based on an omission to act by a public authority as enunciated in the recent High Court decisions in Pyrenees Shire Council v Day (1998) 192 CLR 330 and Romeo v Conservation Commission (NT) (1998) 192 CLR 431 are plainly absent in this matter. As the World Heritage Convention cannot give rise to justiciable rights and obligations in municipal law, a failure to proceed with World Heritage listing of a particular property under the Convention, of itself, cannot found a cause of action based upon a duty of care.

   Genocide

4. Although I have concluded that genocide is a universal crime under international law and municipal law, the conduct complained of in the Application is plainly not capable of constituting genocide under international or municipal law.  Accordingly, it is unnecessary to consider whether, and if so the circumstances in which, genocide might give rise to civil liability or civil remedies.

   Other claims

5. Certain other claims relating to allegations of bad faith, a failure to enact the Genocide Convention and certain statements made in relation to East Timor were set out in the Application.  It is sufficient to say that I accept the respondents’ submissions that those claims are not capable of giving rise to any claim for damages or for any of the other relief claimed by the applicant.

6. Accordingly, for the above reasons the claims brought by the applicant are misconceived and the proceeding is one which ought to be dismissed.  I have carefully considered whether leave to replead, even to a limited extent, should be granted but have arrived at the conclusion that it is not appropriate to do so for much the same reasons as leave was not given in analogous circumstances in Thorpe (at 779-780) by Kirby J.

7. In arriving at my conclusion I have approached the Application as primarily raising non-justiciable claims based upon the World Heritage Convention.  It may well be that underlying the grievances raised by the applicant, which appear to be genuinely held, there may have been some specific conduct which has been engaged in by agencies or officers of the Commonwealth government that might have caused, or might be causing, harm to the rights of the Arabunna people.  The decision at which I have arrived in the present case is not intended to deny those persons recourse to the law in respect of that harm.  They may, or may not, have a cause of action in that regard.  As was observed by Gummow J in Lindon v Commonwealth (1995) 70 ALJR 145 at 146 I am not to be taken as suggesting that it would not be possible to frame an action in such a way that did present a specific issue that might involve ventilation of at least some of the basic grievances sought to be raised by the applicant in proper legal form to achieve a specific result. However, the present Application does not do so, is misconceived and would require not only radical change in relation to any causes of action to be relied upon but also would require different parties. In these circumstances it is appropriate to dismiss the application.

   Conclusion

8. For the above reasons I have concluded that the appeal in Re Thompson is to be dismissed and the proceeding in Buzzacott v Hill and Ors is also to be dismissed.

I certify that the preceding one hundred and seventy six (176) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:             1 September 1999

No. A5 of 1999

Counsel for the Appellants:	J W Burnside QC and S Senathiraja
Solicitor for the Appellants:	Simon Northeast Solicitors & Barristers
Counsel for the Respondent:	R Bayliss
Solicitor for the Respondent:	ACT Government Solicitor
No. S39 of 1999
Counsel for the Applicant:	J W Burnside QC and S Senathiraja
Solicitor for the Applicant:	Simon Northeast Solicitors & Barristers
Counsel for the Respondents:	H Burmester QC and Dr M Perry
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	31 May and 1 June 1999