FEDERAL COURT OF Nulyarimma v Thompson [1999] FCA 1192 CRIMINAL LAW – International crime of – 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 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

GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A5 of 1999 DISTRICT REGISTRY

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.

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IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIAN CAPITAL TERRITORY S23 of 1999 DISTRICT REGISTRY

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.

GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A5 OF 1999 DISTRICT REGISTRY

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 S 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.

- 2 - 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 (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

- 3 - 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 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 c