In the matter of an application for a writ of mandamus directed to Phillip R Thompson Ex parte Wadjularbinna Nulyarimma, Isobel Coe, Billy Craigie and Robbie Thorpe (Applicants), Tom Trevorrow, Irene Watson, Kevin Buzzacott and Michael J Anderson (Intervenors) [1998] ACTSC 136 (18 December 1998)
Last Updated: 13 October 1999
In the matter of an application for a writ of mandamus directed to PHILLIP R THOMPSON Ex parte WADJULARBINNA NULYARIMMA, ISOBEL COE, BILLY CRAIGIE and ROBBIE THORPE (Applicants), TOM TREVORROW, IRENE WATSON, KEVIN BUZZACOTT and MICHAEL J ANDERSON (Intervenors)[1998] ACTSC 136No. SC 457 of 1998Number of pages - 26Practice and Procedure - Prerogative Relief - Civil and Political Rights - Criminal Law(1999) [1998] ACTSC 136; 136 ACTR 9
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In the matter of an application for a writ of mandamus directed to PHILLIP R THOMPSON Ex parte WADJULARBINNA NULYARIMMA, ISOBEL COE, BILLY CRAIGIE and ROBBIE THORPE (Applicants), TOM TREVORROW, IRENE WATSON, KEVIN BUZZACOTT and MICHAEL J ANDERSON (Intervenors)
No. SC 457 of 1998
Number of pages - 26
Practice and Procedure - Prerogative Relief - Civil and Political Rights - Criminal Law
[1998] ACTSC 136; (1999) 136 ACTR 9
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IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRISPIN J
Practice and Procedure - Registrar's power to issue summonses under s 12
of the Magistrates Court Act 1930 - whether power discretionary -
relevant considerations.
Prerogative Relief - application for order nisi under s 16(1) of the
Magistrates Court Act 1930 - refusal by Registrar to issue warrants for
the arrest of the Prime Minister and other Members of the Commonwealth
Parliament - relevant considerations.
Civil and Political Rights - Convention on the Prevention and
Punishment of the Crime of Genocide (1948) - whether statutory ratification
sufficient to create offences of genocide recognised by the domestic law of
Australia - whether offences of genocide at common law.
Criminal Law - Convention on the Prevention and Punishment of the
Crime of Genocide (1948) - whether statutory ratification sufficient to
create offences of genocide recognised by the domestic law of Australia -
whether offences of genocide at common law.
Civil and Political Rights - legislative power of the Commonwealth -
whether exercise may be judicially examined - whether Member of Parliament may
commit offence in conduct of Parliamentary business - whether principle extends
to formulation of legislative policy.
CANBERRA, 20-21 and 23 July, 11 and 20 August, 14 and 28 September 1998 (hearing), 18 December 1998 (decision)
#DATE 18:12:1998
Counsel acting as amicus curiae: Mr L J Lindon
Counsel for the Respondent: ACT Government Solicitor
THE COURT ORDERS THAT:
1. The application be dismissed.
CRISPIN J
1. This is an application for an order nisi requiring the Registrar of the ACT
Magistrates Court to show cause why an order should not be made requiring him
to issue process effectively charging certain members of the Commonwealth
Parliament with offences of genocide.
2. The applicants apparently attended at the Magistrates Court on 6 July 1998
and on the basis of the informations then presented purported to require the
respondent to issue warrants for the arrest of John Winston Howard, Timothy
Andrew Fischer, Brian Harradine and Pauline Lee Hanson. The respondent
declined to do so as he did not accept that an offence of genocide was known to
the law of the Australian Capital Territory. The applicants then instituted
the present proceedings.
3. The charges which the applicants wish to pursue appear to be based upon the
following allegations:
(a) that on 1 July 1998 the persons named in the summonses had by introducing
into the Parliament and/or securing the passage of the Native Title
Amendment Bill committed an act of genocide;
(b) that on 1 July 1998 the persons so named had committed an unspecified act
of genocide;
(c) that between February 1998 and July 1998 by what has been described as ´the
ten point plan' and the Native Title Amendment Bill attempted, aided and
abetted and/or conspired to do certain acts of genocide;
(d) certain other acts and omissions said to constitute genocide on the part of
each member of Parliament including a failure to legislate to give effect to
the provisions of the Convention on the Prevention and Punishment of the
Crime of Genocide (1948) and, in particular, a failure to enact
legislation creating statutory offences of genocide.
4. During the course of argument the applicants stated that they wished to
pursue similar charges against all members of the Commonwealth Parliament. On
the other hand, they indicated that if mandamus were ultimately granted they
were content to leave it to the respondent to determine whether a warrant
should be issued for the arrest of each of the proposed defendants or whether
to proceed by summons.
5. These contentions were obviously somewhat startling. However, the
applicants maintained that the application raised serious issues and the matter
was adjourned to enable adequate time for the preparation of argument.
6. A number of people representing Aboriginal groups from different parts of
Australia sought leave to intervene in the proceedings. Mr Bayliss, who
appeared for the respondent, indicated that he did not oppose their
intervention and leave was duly granted.
7. All of the applicants and intervenors were unrepresented, though Mr Lindon
of counsel appeared as amicus curiae to ensure that the legal issues raised by
the application were properly identified and that relevant authorities were
drawn to my attention. At the commencement of the proceedings Mr Lindon
indicated that each of the applicants and intervenors wished to address the
Court and that in addition to the facts set out in the various affidavits which
had been filed in support of the application they would refer to certain facts
during the course of those addresses. Mr Bayliss indicated that he did not
object to that course. Some of the applicants and intervenors subsequently
indicated that they had difficulty in explaining their position in the
environment of a courtroom and, with the consent of all parties, I agreed to
hear further submissions at the ´tent embassy' opposite the site of the old
Parliament House. I subsequently granted leave for the parties to file written
submissions. An application for a further oral hearing was refused.
8. The addresses proved to be wide ranging and at times emotive. Each of the
parties relied upon affidavits filed in the proceedings but also spoke movingly
of events in his or her own life. In addition it soon became apparent that the
applicants and intervenors relied upon the suffering of Aboriginal people
generally. The pain of dispossessed and alienated people was vividly conveyed.
Many of the incidents recounted had occurred decades earlier and some spoke of
even earlier incidents which had occurred before they had been born. In
essence, it was contended that the Aboriginal peoples had been subjected to
genocide since the colonisation in 1788 and that acts of genocide were still
continuing.
9. It was not readily apparent how allegations relating to the formulation of
government policy concerning land rights and the introduction of a Bill to
amend a Commonwealth statute could support charges of genocide. Various
arguments were advanced but there seemed to be a common contention that these
allegations should not be viewed in isolation. They fell to be evaluated in
the context of peoples whose religion and culture were inextricably linked to
their lands[1] and of a long history of
dispossession and accompanying violence. It was contended that in this context
the legislative policy and the Native Title Amendment Bill were
intrinsically genocidal as they had the effect of abrogating rights to self
determination, destroying cultures and denying freedom of religion. However,
most of the argument was directed to establishing that the alleged acts
involved entrenching and extending the dispossession of Aboriginal people
throughout Australia. This was said to amount to genocide because it involved
causing serious bodily or mental injury to a group, contrary to paragraph (b)
of Article 2 of the Convention on the Prevention and Punishment of the Crime
of Genocide[2], and deliberately
inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or part, contrary to paragraph (c) of that
Article. The alleged acts were said to reveal an underlying policy of
"perpetuating the genocide" of Aborigines that had been occurring since 1788.
More generally, it was submitted that they involved the continued exercise of
illegitimate sovereignty over peoples who had never ceded their territory to
either the English or Australian governments, an attempt to destroy Aborigines
as independent peoples, to keep them in "a colonised state of being" and to
maintain their subjection.
10. Whilst it would be impracticable to attempt any thorough examination of the
interaction between white settlers and the Aboriginal peoples since 1788 it is,
I think, impossible to understand the nature and extent of the grievances which
have led to the present allegations without regard for the historical context
in which they have been made. For this limited purpose I have considered it
appropriate to take into account not only the evidence contained in the
affidavits filed in support of the applications but to take judicial notice of
a broad sweep of Australian history and to draw on published material and
historical documents.
11. 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. Of course, neither the early
colonists nor the government that sent them would have had any thought of an
invasion. The decision to add a new colony in the great south land had been
taken on the other side of the globe in a city that was effectively the capital
of the greatest empire ever known. The world view of the decision makers was
inevitably shaped by the civilisation of which they were a part. It was a
world of class, refinement and power. The accounts of Terra Australis brought
back by their subordinate, James Cook, had provided them with the opportunity
to divest themselves of some of England's burgeoning prison population and to
extend the empire to yet another new and as yet unexplored land. It is
doubtful if they gave much thought to the existence of indigenous inhabitants
and the impact which a relatively small penal colony might have on their
rights.
12. Nonetheless, like many tides of human history, the colonisation which began
in 1788 tended to swamp the rights of those in its path. In the early years of
the colony conflict between Aborigines and settlers was uncommon. The British
were pre-occupied with securing adequate food and water, establishing a
settlement and securing their convict charges. The land was vast and there was
obviously room for all. Port facilities developed and towns began to take
shape. Farms were formed on land made available on the basis of promises that
licences would be granted in due course. Initially, of course, the British
presence involved little more than a toehold on the edge of the continent.
However, settlers who had come in search of new opportunities had been set
ashore on the verge of seemingly unending vistas of land with not a fence in
sight. Squatters began to graze sheep and cattle over large areas. As the
years wore on the demand for land near the settled areas increased and settlers
began to drive off the original inhabitants. Atrocities became more common.
13. The wholesale dispossession of Aboriginal people from their lands had been
neither foreseen nor intended by the English authorities. Captain Cook's
instructions, issued in 1768, had reflected the traditional respect for the
rights of indigenous inhabitants. It authorized him "with the consent of the
natives to take possession of convenient situations in the country in the name
of the King of Great Britain, or, if you find the country uninhabited to take
possession for His Majesty by setting up proper marks and inscriptions as first
discoverers and possessors".[3] The "Secret
Instruction Book" which Governor Phillip brought to Botany Bay twenty years
later included the admonition:
"You are to endeavour by every possible means to open an
intercourse with the natives, and to conciliate their affections, enjoining all
our subjects to live in amity and kindness with them. And if any of our
subjects shall wantonly destroy them, or give them any unnecessary interruption
in the exercise of their several occupations, it is our will and pleasure that
you do cause such offenders to be brought to punishment according to the degree
of the offence."[4]
14. However, the early settlers displayed a seemingly insatiable demand for
vast tracts of land. The chance to build up of flocks of sheep unrestrained by
the familiar confines of the small farms of England held out the lure of real
wealth. Few seemed to have been deterred either by their own lack of title or
by the rights of the traditional owners. As settlers made steadily increasing
incursions into the land around them the Aboriginal occupants were driven from
their homelands or murdered. For present purposes it is unnecessary to attempt
even a general outline of the chronicle of massacres and atrocities that
gradually spread from the infant colonies throughout the continent. However,
it is clear that they were widespread and had a devastating impact on the
Aboriginal peoples.
15. This saga of dispossession and violence was not the product of policies
formed in London. On the contrary, during the early 1800s England experienced
a groundswell of humanitarian sentiment in favour of indigenous peoples. From
1825 the instructions issued to colonial governors commanded them to promote
religion and education amongst Aborigines, to take measures for their
civilisation and to "protect them in their persons, and in the free enjoyment
of their possessions".[5] In 1833 the English
Parliament formally abolished slavery. In the following year Thomas Buxton
moved a resolution which was carried by the House of Commons unanimously that
an address be presented to the King praying that His Majesty would take
measures to secure to the native inhabitants "the due observance of justice,
and the protection of their rights, promote the spread of civilization amongst
them, and lead them to the peaceful and voluntary reception of the Christian
religion".[6] This concern extended to the
indigenous peoples of all of the British colonies and was plainly reflected in
many of the despatches to officials in the land which came to be known as
Australia.
16. However, England was on the other side of the world and it had proven
difficult to maintain authority even over its own officers. In 1808 officers
of the New South Wales Corps had staged the "rum rebellion", deposing Governor
Bligh and running the colony as a military junta for two years. Whilst the
authority of the British government was firmly re-established with the arrival
of Governor Macquarie in 1810, there were practical difficulties in restraining
the expansion of grazing activities. In October 1835 Governor Bourke wrote
that:
"I cannot avoid perceiving the peculiarities which, in this
Colony, render it impolitic and even impossible to restrain dispersion within
limits that would be expedient elsewhere. The wool of New South Wales forms at
present, and is likely long to continue, its chief wealth. It is only by a
free range over the wide expanse of native herbage which the Colony affords
that the production of this staple article can be upheld at its present rate of
increase in quantity or ... quality." name="fnB6"
href="#fn6[7]
17. Colonial Office officials were at a loss to know how to control "persons
hanging on the Frontiers of a vast pastoral country to which there is no known
or assignable limits".[8] Indeed, James Steven,
the permanent head of the Colonial Office, expressed his belief that the
shepherds and herdsmen of New South Wales would become like the nomadic tribes
of Russia and Tartary and ultimately prove to be "almost as lawless and
migratory a Race".[9]
18. The constant expansion into new areas of land was accompanied by almost
equally constant reports of atrocities. In 1839 Governor Gipps expressed his
fear that the Aborigines would ´ere long cease to be numbered amongst the Races
of the Earth'.[10] In the same year he
announced in the Government Gazette that:
". . . each succeeding despatch from the Secretary of State,
marks in an increasing degree the importance which Her Majesty's Government,
and no less the Parliament and the people of Great Britain, attach to the just
and humane treatment of the Aborigines of this country; and to declare most
earnestly, and solemnly, his deep conviction that there is no subject or matter
whatsoever in which the interest as well as the honour of the Colonists are
more essentially concerned." name="fnB10"
href="#fn10[11]
19. Between the late 1830s and the late 1840s a number of policies were
implemented for the benefit and protection of Aborigines. These included:
* the appointment of Protectors;
* the appointment of Border Police;
* education, training and religious instruction;
* the creation of reserves;
* the application of 15% of the Land Fund for the benefit, civilisation and
protection of Aborigines; and
* a measure of legal recognition which extended to matters such as the
admissibility of evidence by Aborigines.[12]
20. Yet the dispossession of their lands continued unabated. In his 1846
report the Protector of Aborigines in Port Phillip quoted the Assistant
Protector for the Loddon District as saying that "unless suitable reserves are
immediately formed for their benefit, every acre of their native Soil will
shortly be so leased out and occupied as to leave them ´in a legal view, no
place for the sole of their feet'."[13]
21. In the early years of the colonies settlers had at best been licensed to
use Crown lands for agricultural purposes, but on 9 March 1847 the grant of
pastoral leases was authorised by regulations made by Order in Council pursuant
to the Sale of Waste Land Act 1842. This gave rise to immediate concern
that those granted such leases might assume the legal right to drive off the
Aboriginal inhabitants. In a despatch dated 11 February 1848 Earl Grey, then
Secretary of State for the Colonies, wrote to Sir Charles FitzRoy, then
Governor of New South Wales stating:
"I think it essential that it should be generally understood
that leases granted for this purpose give the grantees only an exclusive right
of pasturage for their cattle, and of cultivating such land as they may require
within the large limits thus assigned to them, but that leases are not intended
to deprive the natives of their former right to hunt over these Districts, or
to wander over them in search of subsistence, in the manner to which they have
been heretofore accustomed, from the spontaneous produce of the soil except
over land actually cultivated or fenced in for that purpose."
name="fnB13" href="#fn13[14]
22. Even before this despatch reached Sydney the Executive Council had
considered the issue and directed the Crown Law Officers to insert into the
forms of leases they had been instructed to prepare conditions ensuring that
Aborigines would have free access to unimproved lands. name="fnB14"
href="#fn14[15] A further Order in Council signed by the Queen on 18
July 1849 expressly authorised the insertion of conditions in pastoral leases.
In the despatch transmitting the new Order to Governor FitzRoy, Earl Grey said
that "there can, I apprehend, be little doubt that the intention of Government
was . . . to give only the exclusive right of pasturage in the runs, not the
exclusive occupation of the land, as against Natives using it for the ordinary
purposes . . ."[16] The words of the
Order were, he said, amply sufficient to enable him to prevent the public
injury that would result from the exclusion of Aborigines or other people
travelling or searching for minerals.[17]
23. Orders in Council regulating the grant of pastoral leases in Western
Australia and South Australia were even more explicit. The Western Australian
Order included the clause: "Nothing contained in any pastoral lease shall
prevent Aboriginal natives of this colony from entering upon the lands
comprised therein, and seeking their subsistence therefrom in their accustomed
manner . . ."[18] The South Australian Order
was qualified by the words: "Provided always, that such leases shall be
subject to such conditions as the said Governor shall think necessary to insert
therein for the protection of the Aborigines . . ." name="fnB17"
href="#fn17[19]
24. Yet even in the absence of any lawful authority to drive off Aborigines the
course of dispossession and murder had continued. In June 1849 Earl Grey had
referred to further atrocities and written of "the absolute necessity . . . to
put a stop to them as their continuance would be a disgrace not merely to the
Colony but to the nation."[20]
25. In 1850 the Port Phillip District was separated from New South Wales to
become the Colony of Victoria[21] and
Legislative Councils were established in Victoria, South Australia and Western
Australia[22]. By then most of the measures
that had been taken to improve the conditions of Aborigines and protect their
rights in relation to land leased for pastoral purposes were generally regarded
as having ended in failure. Colonial officials insisted on the importance of
Aboriginal people having rights of access to leased lands for the purposes of
hunting and subsistence. However, Earl Grey remained concerned about what
might befall Aborigines under colonial governments. In February 1850 he wrote
to Governor of New South Wales, Sir Charles FitzRoy, warning that "the honour
of the local government is concerned in proving that no effort has been wanting
on their part to avert the destruction of the Native Race as a consequence of
the occupation of their Territory by British subjects". name="fnB21"
href="#fn21[23] He was reluctant to agree to transfer the control of the
management of the waste lands to the colonial legislatures for a number of
reasons including, apparently, his unwillingness to let the colonists exercise
unfettered power over what happened to Aborigines. name="fnB22"
href="#fn22[24]
26. With the benefit of hindsight that history affords it is now clear that his
concerns were justified. Despite his efforts and those of other officials the
aboriginal population was decimated. In 1992 the High Court noted that the
current estimates of the Aboriginal population of Australia at the time of
colonization ranged from three hundred thousand to a million or even more.
name="fnB23" href="#fn23[25] The Council for Aboriginal Reconciliation
has since suggested a figure of about 750,000. name="fnB24"
href="#fn24[26] Yet in 1901 it was estimated that there were only 93,000
Aborigines living in Australia and by 1921 that figure had declined to
72,000.[27] Even with prompt intervention,
Governor Gipps' dire prediction that Aborigines would "ere long cease to be
numbered amongst the Races of the Earth" had almost been fulfilled.
27. Many had simply been massacred.[28] It is
a brutal fact of history that some settlers regarded Aboriginal people as
savages and in the eyes of many the massacres were not acts of murder. Early
records starkly reveal this attitude. One settler is recorded as maintaining
"that there was no more harm in shooting a native, than in shooting a dog".
name="fnB27" href="#fn27[29] Another justified his belief that there had
been nothing wrong in the shooting of "upwards of a hundred" Aborigines on the
basis that "it was preposterous to suppose they had souls". name="fnB28"
href="#fn28[30] It is little wonder that the violence remained
unchecked.
28. Of course Aboriginal people fought back tenaciously name="fnB29"
href="#fn29[31] but spears and nulla nullas provided an unequal answer to
the deadly magic of the white men's rifles. Yet the settlers had brought more
than ferocity and guns; they had also brought disease. The Aboriginal people
had little resistance to many common western ailments. Death stalked them in
many forms.
29. Law enforcement offered little protection and those who were sent to
investigate atrocities often had more sympathy for the perpetrators than their
victims. Even those who were repelled by the savagery often recoiled from the
prospect of actually punishing white men for murdering Aboriginal people.
Following the conviction of seven men for the murder of twenty-eight unarmed
Aboriginal men, women and children at Myall Creek in 1838 public resentment was
such that a group of graziers led by a magistrate raised a defence fund for the
murderers.[32] As British subjects, some
seemed to have been convinced of their God given right to drive them out and
take the land, even if this meant that the entire race had to be annihilated.
This conviction was nakedly revealed in the comment reported in the Sydney
Morning Herald on 26 December 1836 that "it is in the order of nature that, as
civilization advances, savage nations must be exterminated". name="fnB31"
href="#fn31[33]
30. In Van Diemen's Land they were virtually exterminated. The first large
scale massacre apparently occurred only a few months after the first landing in
1804. It was followed by repeated atrocities. Aborigines were killed and
sometimes maimed for sport. Women were kidnapped, raped and enslaved. The
inevitable resistance and reprisals led to a further cycle of violence. It has
been estimated that there may have been four thousand Aboriginal people living
on the island when the colony was founded.[34]
By 1830 there were perhaps two thousand.[35]
In that year Sir George Murray, then Secretary of State for the Colonies,
expressed his fear that the whole race might become extinct and observed that
any line of conduct undertaken for that end "could not fail to leave an
indelible stain upon the character of the British Government". name="fnB34"
href="#fn34[36] Yet fear led to pressure for Governor Arthur to take
some decisive step and he marshalled some 2,200 men to form the "Black Line" in
order to drive the remaining Aboriginal population from the settled areas of
the island and contain them within the Tasman Peninsula. This exercise failed
and Arthur turned to a process of "pacification". By 1834 most of the
surviving Aborigines of Van Diemen's Land had been induced by promises of safe
haven and adequate food and clothing to "come in" under government protection.
They were placed on Flinders Island in Bass Strait where it was intended to
convert them European ways. They were initially treated well but the initial
benevolence was not maintained and disease struck them down. By 1843 only
fifty-four remained. The last, a woman named Truganini, died in 1876.
name="fnB35" href="#fn35[37] Even if a few took their chances in the
Tasmanian wilderness and somehow survived, the Aboriginal "problem" had been
solved.
31. For present purposes it is unnecessary to refer to the subsequent history
in any detail. On the mainland the atrocities continued for many years as the
colonists maintained their remorseless conquest of the continent. Even after
the dawn of the current century Aboriginal women were raped, men, women and
children were forced into servitude little removed from slavery and from time
to time killings continued to occur. In time there was a resurgence of
paternalism. The missions expanded their programs to extend education to
Aboriginal children. Attempts were made to place suitable girls in positions
as maids or cooks whilst aboriginal boys were encouraged to work in other
menial positions. The relationships were inevitably uneven but here and there
black and white people began to work together. Yet there was a continuing
denial of basic human rights and the paternalism brought new tragedies. Church
and secular bodies began to take young children from their parents so that they
might be raised in white families. Families were divided and people were
relocated far from their homelands. Antagonists and sympathisers were sometimes
united in their lack of understanding and respect. The former tended to
dismiss Aboriginal people as useless; the latter often saw them as pathetic and
helpless people in need of being saved by those more enlightened. Assimilation
was hailed as the answer. If they gradually assimilated into the white
community they would in time cease to exist as a separate race and the children
would learn to identify themselves as a lower grade of white people.
name="fnB36" href="#fn36[38] The so called ´stolen generations' of
children would merely hasten that process. In some states Aborigines were not
entitled to vote until 1962. It was not until 1967 that the Constitution was
amended to authorise the Commonwealth Parliament to make laws specifically
relating to Aboriginal people and enable them to be counted in the census.
32. It is clear from the bloody pages of Australian history that the wholesale
destruction of Aboriginal peoples was related to an equally wholesale
usurpation of their lands. Yet, in the light of what we now know it now
appears that this course was contrary even to English law.
33. Britain had created what has been described as the empire on which the sun
never set. By 1788 almost half of the atlas had been coloured in red to
signify her ever increasing territory. It seemed that no power on earth could
withstand her ravenous hunger for expansion. Yet, perhaps paradoxically, she
acknowledged what had come to be known as the rule of law. The common law of
England applied to all her subjects. Only reigning monarchs were immune from
its reach. It was taken to extend from England herself to the furthest of her
dominions. Yet the law contained within itself a certain restraint born of a
respect for the rights of the existing inhabitants of newly acquired
territories. When Governor Phillip's first fleet sailed into Botany Bay the
principles governing the application of the law of England to its territories
were already well settled. Blackstone's famed commentaries published in 1765
had stated them succinctly:
"Plantations, or colonies in distant countries, are either such
where the lands are claimed by right of occupancy only, by finding them desert
and uncultivated, and peopling them from the Mother-country; or where, when
already cultivated, they have been either gained by conquest, or ceded to us by
treaties. And both these rights are founded upon the law of nature, or at
least upon that of nations. But there is a difference between these two
species of colonies, with respect to the laws by which they are bound. For it
hath been held, that if an uninhabited country be discovered and planted by
English subjects, all the English laws then in being, which are the birthright
of every subject, are immediately there in force. But this must be understood
with very many and very great restrictions. Such colonists carry with them
only so much of the English law, as is applicable to their own situation and
the condition of an infant colony; . . . What shall be admitted and what
rejected, at what times, and under what restrictions, must, in case of dispute,
be decided in the first instance by their own provincial judicature, subject to
the revision and control of the king in council: the whole of their
constitution being also liable to be new-modelled and reformed by the general
superintending power of the legislature in the mother-country. But in
conquered or seeded countries that have already laws of their own, the King may
indeed alter and change those laws; but, till he does actually change them, the
ancient laws of the country remain, unless such as are against the law of God,
as in the case of an infidel country." name="fnB37"
href="#fn37[39]
34. Subsequent editions confirmed the qualification that the extent to which
English laws should be taken to apply in previously uninhabited colonies was
dependent upon the circumstances in which the colonists found themselves and
the condition of the infant colony.[40]
However, the application of English sovereignty to uninhabited territory was
clear. It was "terra nullius", land which belonged to no-one, and there were
no competing rights to be considered.
35. The principle that the existing laws of conquered or ceded territories
would continue to apply until overruled by the conqueror had been established
at least as early as 1693.[41] Nonetheless,
English settlers were regarded as living under the law of England if a local
law was unsuitable for Christian Europeans[42]
and this rule was even extended to English people living in eastern countries
which were not subject to British sovereignty. name="fnB41"
href="#fn41[43]
36. As Brennan J observed in Mabo v Queensland [No 2] name="fnB42"
href="#fn42[44], the great voyages of European discovery opened the way
for England and other European nations to occupy new and valuable territories
that were already inhabited. Among themselves, the European nations recognised
the sovereignty of the discoverers provided that they proceeded to occupy the
territory and that the indigenous inhabitants were not organised into a society
that was permanently united for political action. name="fnB43"
href="#fn43[45] This widespread arrogation of sovereignty was justified
from medieval times on the basis that it would bring the benefits of
Christianity and civilisation to "backward peoples", though towards the end of
the 18th Century a further rationalisation was advanced that
Europeans had a right to make lands productive if they were left uncultivated
by the indigenous inhabitants.[46]
37. However specious these rationalisations may have been, the view was taken
that when sovereignty of a territory could be acquired under this enlarged
notion of terra nullius it could be treated for the purposes of determining
whether the common law of England applied as being uninhabited. The hypothesis
was that since there was no local law already in existence the law of England
became the law of the territory. This approach was by no means confined to
Australia. In 1774 Lord Mansfield suggested that Jamaica should be regarded as
a settled colony because the English colonists had arrived after the Spaniards
had left, the negro inhabitants having apparently been regarded as of no
significance.[47]
38. As Brennan J has pointed out, the facts as we know them today do not fit
the "absence of law" or "barbarian" theory underpinning the reception of the
common law of England into the Australian colonies. name="fnB46"
href="#fn46[48] His Honour referred to an earlier case in which
Blackburn J had spoken of the falsity of this assumption at least in relation
to aboriginal society in the Northern Territory some twenty years earlier. In
that case Blackburn J had said that:
"The evidence shows a subtle and elaborate system highly adapted
to the country in which the people led their lives which provided a stable
order of society and was remarkably free from the vagaries of person whim or
influence. If ever a system could be called ´a government of laws, and not of
men', it is that shown in the evidence before me." name="fnB47"
href="#fn47[49]
39. It had been a fundamental principle of the English common law that
ownership could not be acquired by occupying land that was already occupied by
others. Blackstone had explained that "(o)ccupancy is the thing by which the
title was in fact originally gained; every man seizing such spots of ground as
he found most agreeable to his own convenience, provided he found them
unoccupied by anyone else".[50] Even when a
territory had been acquired by conquest, existing inhabitants who had been
received as subjects and permitted by the Crown to retain possession of their
land were held to have good title without the need for any further grant.
name="fnB49" href="#fn49[51] The impediment which this principle might
otherwise have posed to dispossession of indigenous people was overcome by the
rationalisation that their traditional rights and interests in the land could
be ignored because they were not comparable to proprietary rights of the kind
with which the English settlers were familiar. Hence, by an adroit conceptual
shift from a criterion of occupancy to one based upon the form of tenure, it
could be said that the territory was terra nullius, that is, that the land
belonged to no-one in any sense understood by the common law of England.
40. The traditional rights of the indigenous inhabitants of Australia were
plainly disregarded by the colonists on this basis. In a report to the House
of Commons in 1837 the Select Committee on Aborigines referred to the view that
their state was "barbarous" and "so entirely destitute . . . of the rudest
forms of civil polity, that their claims, whether as sovereigns or proprietors
of the soil, have been utterly disregarded". name="fnB50"
href="#fn50[52] Half a century later Lord Watson had no doubt that the
Colony of New South Wales was within the class of territories "which had been
practically unoccupied, without settled inhabitants or certain law at the time
when it was peacefully annexed to the British Dominions". name="fnB51"
href="#fn51[53]
41. It may be seen from this brief discussion that the refusal to acknowledge
native title was actually contrary to a fundamental principle of the English
common law which had been established almost 100 years before the first fleet
arrived in Australia that, prima facie, the laws and rights of the existing
inhabitants of should be respected. It was rationalised only by reference to a
concept of terra nullius dependent upon assumptions as to the absence of
settled law and propriety rights which are now known to have been substantially
false. Yet on this specious basis, the law "took from indigenous inhabitants
any right to occupy their traditional land, exposed them to deprivation of the
religious, cultural and economic sustenance which the land provides, vested the
land effectively in the control of Imperial authorities without any right to
compensation and made the indigenous inhabitants intruders in their own homes
and mendicants for a place to live".[54]
42. The rights of indigenous inhabitants of British colonies were revisited in
1919 in the context of the English settlement of Rhodesia. The Privy Council
again acknowledged the principle that there was at least a category of private
property rights which it was to be presumed that a conqueror of the relevant
territory would respect unless the land in question was expressly confiscated
or subsequently expropriated.[55] Yet
recognition of native title was again denied on the basis that their rights
over the land were not comparable to familiar forms of tenure. Lord Sumner
articulated the traditional rationalisation in the following terms:
name="fnB54" href="#fn54[56]
"The estimation of the rights of aboriginal tribes is always
inherently difficult. Some tribes are so low in the scale of social
organisation that their usages and conceptions of rights and duties are not to
be reconciled with the institutions or the legal ideas of civilised society.
Such a gulf cannot be bridged. It would be idle to impute to such people some
shadow of the rights known to our law and then to transmute it into the
substance of transferable rights of property as we know
them."
43. Two years later the Privy Council followed a Nigerian case name="fnB55"
href="#fn55[57] in holding that ´a mere change in sovereignty is not to
be presumed as meant to disturb rights of private owners ...' name="fnB56"
href="#fn56[58] and upheld the claim of an Idejo White Cap Chief of
Lagos for compensation for the loss of a communal usufructuary title.
name="fnB57" href="#fn57[59]
44. However the earlier rationalisations were well entrenched and as late as
1971 Blackburn J felt compelled to hold that it was beyond the power of the
Supreme Court of the Northern Territory to depart from past authorities holding
that New South Wales fell into the category of a settled or occupied colony.
name="fnB58" href="#fn58[60]
45. In 1985 Deane J lamented that "the common law of this land has still not
reached the stage of retreat from injustice which the law of Illinois and
Virginia had reached in 1823 when Marshall CJ, in Johnson v McIntosh,
accepted that, subject to the assertion of ultimate dominion (including the
power to convey title by grant) by the State, the ´original inhabitants' should
be recognised as having ´a legal as well as just claim to retain the occupancy
of their traditional lands'".[61]
46. The High Court's historic decision Mabo v Queensland [No 2] handed
down in 1992 generally upheld the native title of the Meriam people to the
unleased lands of the Murray Islands. In doing so the Court accepted the
principle referred to by the Privy Council in Re Rhodesia that native
title could be extinguished by acts of the Crown evincing a clear intention to
do so, but held that in the absence of such acts it continued to subsist.
47. This decision provoked heated controversy. Civil libertarians and others
sympathetic to the Aboriginal cause hailed it as a breakthrough. The
dispossession and decimation of earlier generations could not be undone but at
last the stigma of the terra nullius concept had been set aside and the rights
of Aboriginal people recognised. On the other hand some people were obviously
incensed. The principle that the rights of the original inhabitants would
survive the acquisition of a territory unless the Crown evinced a clear
intention to extinguish them had been recognised as early as the
17th century[62]. Yet the High
Court was denounced for making "new law". Many farmers were obviously
disturbed by the decision. What was native title? Could it be claimed on
their land? If so, what were the implications? The mining industry also
expressed concern. Whilst the decision made it clear that native title could
not survive the grant of freehold or a lease granting the right to exclusive
possession of the land, there were exploration licences over areas of land in
relation to which no interests of that kind had been granted. How might they
be affected? Indeed, how might these newly recognised rights interfere with
mining activities throughout Australia?
48. The government duly enacted the Native Title Act 1993, a complex
piece of legislation which amongst other things validated certain leases and
established a scheme for the resolution of native title claims. Whilst much of
the publicity concerning the enactment of this statute reflected the concern of
farmers and mining companies, the enactment of this Act also caused many
Aborigines to fear that the limited rights acknowledged by the High Court might
be further eroded.[63]
49. The decision in Mabo v Queensland [No 2] had not specifically
addressed the issue of whether native title had been extinguished by the grant
of pastoral leases. This issue was raised in The Wik Peoples v The State of
Queensland & Ors[64] which involved
claims made over lands held by farmers under pastoral leases in Queensland. In
December 1996 High Court decided, again by majority, that native title was not
necessarily extinguished by the grant of such leases and that the issue of
extinguishment could only be resolved by reference to the particular rights and
interests which could be established by reference to the leases themselves and
the legislation under which they had been granted. However, the Court
unanimously affirmed the principle that the rights conferred under statutory
grants prevailed over any rights and interests conferred by native title to the
extent of any inconsistency.
50. Despite the obvious fact that this decision meant that any rights validly
granted by a pastoral lease were impregnable against competing claims based
upon native title it was again followed by expressions of indignation. The
acknowledgment that some residual incidents of native title might co-exist with
the rights arising under such a lease was again criticised by some as another
example of the High Court making new law, though it actually reflected the
intention of the English Government in introducing pastoral leases to Australia
in the late 1840s and the early 1850s. The decision also gave rise to further
uncertainty. Pastoralists had generally assumed that their leasehold interests
had given them the right to exclusive possession of the land and if they chose
to permit Aborigines to enter it then they did so out of kindness or in
recognition of a moral rather than a legal right. If in fact some Aborigines
had subsisting proprietary rights in relation to the land then potentially
disturbing questions arose. Which people had title? What rights did it
involve? Would it limit the pastoralist's use of the land? Even if it had no
impact upon their farming activities how might it affect the possibility of
using the land for other activities such as tourism ventures or the extraction
of minerals? The uncertainty was compounded by the fact that any claims might
not be resolved for many years. Did the claimants have existing rights that
should be recognised in negotiations for mining rights? Should mining
companies agree to pay royalties to people whom might be unable to sustain
their claim or take the risk of being held liable for infringing their
rights?
51. It was in this context that the so called "ten point plan" was formulated
and the Native Title Amendment Bill drafted. The Bill has, of course,
now passed into law though only after substantial amendment. name="fnB63"
href="#fn63[65]
52. Having regard to the view which I have taken of the matter it is
unnecessary to refer to the nature of that plan in any detail but it is clear
that it involved imposing further statutory limitations on native title claims.
At least from the vantage point of hindsight it is obvious that any proposal to
curtail the residual rights flowing from native title was bound to create
considerable controversy. From the perspective of the pastoral and mining
industries it was necessary to resolve the uncertainty about the practical
implications of the High Court's decisions and the only complaint was that the
proposals did not go far enough. On the other hand, from an Aboriginal
perspective the proposals were a further denial of fundamental rights. The
High Court's decisions in Mabo v Queensland [No 2] and The Wik
Peoples v Queensland had confirmed that the rights and interests which
Australian governments had given to others over all of the land which had been
taken from Aboriginal people during the past two centuries remained
unassailable. Where land had not been allocated to others by the grant of
freehold or a lease conferring a right to exclusive possession the descendants
of its original inhabitants might be able to claim those traditional rights
which were not inconsistent with any lesser interest created by the Crown. Put
in polemical terms, the invaders would retain whatever rights they had
arrogated for themselves but the descendants of the rightful occupants could
claim the dregs. Even then they faced the considerable hurdle of having to
prove a continuing chain of association with the land throughout the
generations. Yet there had been some acknowledgement of the wrongfulness of
their ancestors' dispossession, the stigma of terra nullius had been removed
and at least some residual rights recognised. The ten point plan was plainly
seen as an attack on even those residual rights. It is clear from the
passionate nature of some of the addresses before me that to many Aborigines it
was as if the Australian Government had resumed the process of dispossession.
53. It is in this context that the applicants seek the opportunity to bring the
contemplated charges of genocide. They maintain that whilst the terrible
events of earlier years cannot provide a basis for criminal charges against
members of a later generation that does not mean that the present generation is
devoid of responsibility for the consequences of those events. As Ms Watson
put it in her submission, "it is not self evident . . . that a denial of
reparation flows from a denial of guilt". The Australian public as a whole
continues to enjoy the fruits of land taken by force from the ancestors of
people such as the applicants and intervenors. On the other hand, it was
contended, Aboriginal peoples continue to suffer the consequences of that
dispossession and because of their culture and religion those consequences are
destructive. There is widespread despair and many continue to suffer the
affects of social problems such petrol sniffing, alcohol abuse and suicide.
They continue to be disadvantaged even in terms of basic health services and
this is reflected in high mortality rates and life expectancies some fifteen to
seventeen years below those of the general population. name="fnB64"
href="#fn64[66]
54. Some of the applicants and intervenors spoke movingly and at times
eloquently of their anguish at the impact of the colonisation upon the
aboriginal peoples and its contemporary consequences including the loss of
homelands and the continuing erosion of their culture. It is clear that each
has suffered and continues to suffer not only as members of groups subject to
general cultural and physical dispossession but as individuals whose lives have
been profoundly influenced by the treatment which they have received. The
continuing impact of these matters on the lives of individual Aboriginal people
can perhaps best be conveyed by reference to the evidence which one of the
applicants gave concerning her own life.
55. Wadjularbinna Nulyarimma was conceived as a result of the rape of her
Aboriginal mother by a white settler. She recalled being in her grandmother's
arms at the age of three or four when someone whom she understood to be a
missionary took hold of one arm and began to drag her away. Her grandmother
tried to hold on to her and she became a diminutive human rope in an unevenly
balanced tug of war. Even now, after more than half a century, she still
remembers the screaming. Her sister was taken at the same time. She was taken
to live in a dormitory in a camp enclosed within a barbed wire compound and
taught to speak English. When she and other girls in the compound attempted to
speak in their own language their mouths were washed out with soap. Her
parents were not permitted to visit and girls who attempted to escape were
flogged with a leather whip.
56. Later she and other half white girls became servants to missionary
families. At about fourteen she was put in charge of older full blood
Aboriginal staff at the local hospital and this led to resentment and conflict.
She was pressured by other aboriginal people to allow them to visit and take
traditional medicines to family members in hospital. When she was caught doing
so she was flogged.
57. In 1954 the superintendent of the camp arranged for her to be married to a
white man. She felt that she had no real choice in the matter. She was taken
from the camp for a period of four weeks to become accustomed to life outside
and then married to a man she did not know. Her parents were not permitted to
attend the wedding. For many years thereafter she lived as a white woman,
enjoying material security as the wife of a station manager and having four
children whom she described as "my reason for living". Yet she was "a sad and
empty person", forced to live a lie by pretending to be white and thrust into a
society the ethos of which was contrary to her religion, values and culture.
She explained that she had belonged within a system of "connectedness" and that
her enforced and continuing removal from it "alienated me and gave me a feeling
of dying slowly".
58. In 1971 she made the agonizing decision to leave her husband and return to
her mother's people. It was a time of anguish. Her children had been raised
in a white society and she had white friends. To leave meant losing so much
that she had loved. Yet she felt driven to return to the society and culture
which gave her a sense of identity and connection to the land. Others had not
understood, but despite the pain of the loss which it entailed she had known it
was the right decision. However, the return to her mother's people was also
tinged with pain. She was no longer fluent in their language and her decision
to leave her husband was seen as a breach of their law. She had give up so
much to come home, only to be left hurt and ashamed.
59. She was clearly a woman who had been torn between "the extremes of two very
different worlds" and as a consequence been condemned to a life of internal
conflict and sadness. Yet her primary concern seemed to be for others. She
spoke with feeling of the sense of alienation and despair, particularly amongst
the young, and cited the prevalence of suicide and attempted suicide in her
community. No person of decency or compassion could fail to have been moved by
the account related in her affidavit and in the oral address which followed it.
There was other evidence of equal poignancy.
60. In many respects the submissions of the applicants and intervenors amounted
to heartfelt pleas for understanding, respect and reconciliation. I would like
to think that they will not fall on deaf ears. Yet, regrettably, it is not
within the power of this Court to heal the wounds of the past. Nor is it the
Court's role to seek to influence the policy to be pursued by Australian
parliaments. As I made clear during the course of the hearing, the present
proceedings concern a discrete application which must be determined according
to established legal principles. As Brennan J has observed:
"But 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. One can readily
understand that there may be disappointment in the performance by one branch or
another of government of the functions which are allocated to it under our
division of powers. But 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." name="fnB65"
href="#fn65[67]
61. In the present case as I have mentioned the applicants seek to obtain an
order nisi to compel the respondent to issue summonses against various people
and in effect facilitate the prosecution of those people on charges of
genocide. No matter what view may be taken of the injustices of the past or
even of the present, it is incumbent upon the applicants to demonstrate legally
recognised grounds justifying the making of such an order.
62. The Respondent's power to issue summonses is derived from section 12 of the
Magistrates Court Act 1930 which provides, inter alia, that any
magistrate or the Registrar of that court "may receive an information and grant
a summons or warrant thereon . . ."
63. The use of the word "may" in an enactment normally implies that the person
so authorised has a discretion as to whether to do the act in question.
name="fnB66" href="#fn66[68] In R v Scott; ex parte Church
name="fnB67" href="#fn67[69] the South Australian Court of Appeal
construed the relevant provisions of the Justices Act 1921 (SA)
as requiring a Magistrate to receive an information and consider whether he
should issue a summons but affirmed his discretion to refuse to do so. Mr
Trevorrow submitted that the grounds for such a refusal were limited to
procedural or technical matters. However, the judgments do not support that
contention. Indeed, Napier J stated[70] that
"the proper inquiry is whether the facts alleged can be made out, and, if so,
whether they wouldconstitute an offence". Whilst I do not take this statement
to mean that a summons could not be lawfully issued without such an inquiry, it
does support the view that the discretion is not constrained in the manner
suggested. This view is confirmed by the subsequent case of Ex parte Qantas
Airways Ltd; re Horsington & Anor[71]
in which the NSW Court of Appeal in considering a provision of the Justices
Act 1902 (NSW) held that a justice of the peace may refuse to issue
a summons if there is no prima facie case, the proceedings are vexatious or
there are other adequate grounds for doing so.
64. The power to grant an order in the nature of mandamus in relation to any
such decision is to be found in subsection 16 (1) of the Magistrates Court
Act which is in the following terms:
"Where a Magistrate or Registrar refuses to do any act relating
to the duties of his or her office as a Magistrate or Registrar, the party
requiring the act to be done may apply to the Supreme Court, upon affidavit as
to the facts, for an order calling upon the Magistrate or Registrar and also
the party to be affected by the act to show cause why the act should not be
done, and if, after due service of the order, good cause is not shown against
it, the Supreme Court may make the order absolute, with or without payment of
costs."
65. It is clear from the terms of this subsection that the power to make an
order absolute is discretionary. However, even at this stage of the
proceedings it is incumbent upon the applicants to demonstrate that there is a
sufficiently arguable case to justify the making of an order nisi.
name="fnB70" href="#fn70[72] In the present case the applicants would
need to establish that there is a sufficiently arguable case that the
Registrar's discretion miscarried because he acted upon an incorrect principle,
namely that the offence of genocide was unknown to law. Furthermore, whilst
the Registrar did not address this issue, it would be relevant to consider
whether the facts relied upon were capable of supporting the charges which the
applicants wish to bring against each of the potential defendants. If the
facts were plainly incapable of supporting those charges then it would be
inappropriate to grant relief in the nature of mandamus compelling the
Registrar to institute proceedings which were bound to fail and which involved
unjustified allegations of criminal behaviour.
66. Nonetheless, the first issue for determination is whether an offence of
genocide is known to Australian law. It was submitted that offences of that
nature must now be recognised as a consequence of the ratification of the 1948
United Nations Convention on the Prevention and Punishment of the Crime of
Genocide by the Genocide Convention Act 1949 (Clth). I am
unable to accept this submission. It is clear that whilst the Act effectively
ratifies the Convention it does not purport to incorporate the provisions of
the Convention into Australian municipal law. name="fnB71"
href="#fn71[73] Consequently its provisions cannot operate as a direct
source of individual rights and obligations within Australia. name="fnB72"
href="#fn72[74] The ratification of such a Convention may give rise to a
legitimate expectation or assist in the construction of an apparently ambiguous
statutory provision.[75] Furthermore, an
international law may be a legitimate and important influence on the
development of the common law, especially when international law declares the
existence of universal human rights.[76]
However, the enactment of a statute ratifying a Convention cannot, of itself,
give rise to the implied creation of a new statutory offence, even though the
Convention provides that the contracting parties undertake to enact legislation
to create offences of that character.
67. Alternatively, it was submitted that such an offence should be recognised
at common law. In support of this submission it was argued that the
recognition of such an offence would not offend what Brennan J described as the
skeleton of principle which gives the body of our law its shape and internal
consistency[77] and that the absence of any
such common law offence offends the values of justice and human rights which
are aspirations of the contemporary Australian legal system. name="fnB76"
href="#fn76[78] The submission was also supported by reference to his
Honour's observations as to the potential influence which international law may
have on the development of the common law.
68. However, these principles do not mean that new rules may be justified
merely because a judge is emboldened to conclude that they would not fracture
the skeleton of principle to which his Honour adverted and that they would
advance justice and human rights. There must be a sound jurisprudential basis
for any development of the common law. In Mabo v Queensland [No 2] his
Honour was concerned with whether the common law should be regarded as
entrenching a discriminatory rule precluding just claims to retain the
occupancy of traditional lands. It is one thing to suggest that international
standards might have some influence on a decision as to whether the common law
should continue to recognise a discriminatory rule of that kind and another to
suggest that the international standards reflected in a UN covenant should give
birth to a common law offence not previously recognised. Indeed, McHugh J has
expressed the view that courts are no longer able to create criminal offences
name="fnB77" href="#fn77[79]. Whilst this comment was made during the
course of a dissenting judgment the case had not involved the creation of a new
offence but the ambit of one already recognised and the majority did not
express any contrary view. Whilst acknowledging that international law might
influence the development of the common law of Australia, his Honour was
careful to point out that the common law does not necessarily conform with
international law. Furthermore, in the subsequent case of Re Citizen
Limbo[80] Brennan J observed that
international human rights were enforced in Australia chiefly by the operation
of domestic law. His Honour cited, by way of example, the laws against
genocide which he said were enforced in this country by the operation of the
ordinary criminal law against homicide and added, "it is a mistake to confuse
the aspirations of a people with the means by which those aspirations can be
legally discharged".
69. It was suggested that further support for the argument could be found in a
statement contained in an advisory opinion of the International Court of
Justice[81], to the effect that the principles
underlying the Convention "are recognised by civilised nations as binding on
states, even without any conventional obligations". This view may be in turn
supported by reference to Article 1 of the Convention which provides that the
"contracting Parties confirm that genocide, whether committed in time of peace
or in times of war, is a crime under international law . . ." However, the
present application does not involve any consideration of whether such
principles should be recognised as binding on states, either as a matter of
international law or as a reflection of internationally accepted standards. It
involves rather a question of whether the domestic law of Australia should be
taken to include common law principles enabling individuals to be charged with
offences of genocide.
70. It was also submitted that the common law should recognise such offences
because of the jus cogens nature of such offences. Hence, it was argued,
there is an obligation erga omnes to prosecute or extradite in relation
to such offences. The term, ´jus cogens', is normally used to denote a
peremptory norm of international law as defined in article 53 of the Vienna
Convention on the Law of Treaties.[82] The term, ´erga
omnes', means "towards all"[83] and a
reference to obligations erga omnes normally denotes obligations of
international law of the kind described by the International Court of Justice
in Barcelona Traction, Light and Power Company Ltd (Second
Phase).[84] Again, these considerations may be important in
determining whether as a matter of international law nations should accept
certain obligations but it does not, of itself, establish the existence of a
common law offence of genocide forming part of the domestic law of Australia.
71. In enacting the Genocide Convention Act the Commonwealth of
Australia chose to ratify the Convention but to refrain from creating any
statutory offences of the kind contemplated. There is nothing to indicate that
the common law then recognised the existence of any offences of that nature and
the most likely explanation for this approach is that the legislature took the
view that its obligation to provide effective penalties for persons guilty of
acts falling within the definition of genocide could be adequately fulfilled by
reliance upon the existing provisions of the criminal law. The remarks of
Brennan J in Re Citizen Limbo to which I have already referred appear to
reflect that view.
72. Notwithstanding the arguments advanced by the applicants and intervenors on
this issue, I am unable to conclude that the common law recognises any offence
of genocide though, of course, there are other statutory and common law
offences which may be invoked to ensure due punishment for many of the types of
conduct described in the Convention. Nor, in my view, is there a sufficient
jurisprudential basis for any attempt to graft such an offence on to the corpus
of the common law.
73. It would plainly be within the respondent's discretion to refuse to issue
summonses on the ground that the only offences charged were not known to law.
In the present case, for the reasons already given, I have concluded that no
offence of genocide is known to the domestic law of Australia. Accordingly,
the respondent's decision cannot be impugned in the present proceedings.
74. Nonetheless, in deference to the arguments that have been advanced I think
it is appropriate for me to address the further issue of whether, even if such
an offence had been recognized as part of the domestic law of Australia, the
acts relied upon by the applicants would have been capable of supporting the
charges which they wished to bring against the potential defendants.
75. Article 2 of the Convention on the Prevention and Punishment of the
Crime of Genocide defines genocide to mean:
"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 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."
76. The term had been coined by a Polish lawyer, Raphael Lemkin, who felt that
the term "mass murder" was an inadequate description of what had been occurring
in Nazi occupied territories during the course of World War II. The word was
formed from the Greek word ´genos' meaning race or tribe and the Latin suffix
"cide" meaning to kill. He explained its meaning in the following terms:
name="fnB81" href="#fn81[85]:
"Generally speaking, genocide does not necessarily mean the
immediate destruction of a nation, except when accomplished by mass killings of
all members of a nation. It is intended rather to signify a co-ordinated plan
of different actions aiming at the destruction of essential foundations of the
life of national groups, with the aim of annihilating the groups themselves.
The objectives of such a plan would be disintegration of the political and
social institutions of culture, language, national feelings, religion and the
economic existence of national groups, and the destruction of personal
security, liberty, health, dignity, and even the lives of the individuals
belonging to such groups. Genocide is directed against the national group as
an entity, and the actions are directed against individuals, not in their
individual capacity but as members of the national group."
77. There has been significant academic discussion of the concept of genocide
against indigenous people in the course of colonisation. name="fnB82"
href="#fn82[86] However, like many terms, "genocide" has sometimes been
used to denote broader concepts than those originally intended name="fnB83"
href="#fn83[87] and in the context of the present proceedings it is
important to keep in mind the limits inherent in the definition contained in
the 1948 convention.
78. There can be little doubt that the shameful chronicle of abuse suffered by
aboriginal peoples in Australia since 1788 included many acts of the kind
described in this definition. Given the passage of time, the paucity of
contemporary records and the inevitable tendency for people to indulge in self
justification it is not easy to determine whether particular atrocities were
committed with the requisite intent. Nonetheless, the nature, scope and
frequency of such acts suggests at least a strong probability that some at
least were so motivated. In 1983 Murphy J referred to the Aboriginal people of
Australia as having been the subject of "attempted genocide". name="fnB84"
href="#fn84[88] However, the concept of genocide contained in Article 2
of the Convention does not require that the relevant "national,
ethnical, racial or religious group" be destroyed, but only that one or more of
the specified acts be committed with the intention of destroying the group "in
whole or in part". Many of the atrocities plainly satisfied this description.
In 1989 J. H. Wootten QC expressed the view that assimilation in its crudest
forms, and particularly the removal of aboriginal children, fell within this
definition.[89] For present purposes, it is
unnecessary for me to determine whether the particular conduct to which he
referred would have been sufficient to sustain charges of genocide if such an
offence formed part of the domestic law of Australia. There is ample evidence
to satisfy me that acts of genocide were committed during the colonisation of
Australia.
79. However, the applicants do not seek the mere acknowledgment of past wrongs.
They seek to bring criminal charges against the potential defendants. Such
charges should not be brought unless there is at least an arguable case against
each of the people concerned that he or she has been guilty of acts
constituting the offences so charged. Members of the present Parliament cannot
be prosecuted on the basis of some vicarious or inherited responsibility for
the crimes of those now long dead. Nor can they be prosecuted for symbolic
reasons or as a means of exerting influence on government policy. Insofar as
the criminal law is concerned they must be treated not as representatives of
the Australian people either past or present but as individuals responsible
only for any criminal conduct which the evidence proves they have committed.
80. Even if the specific allegations are considered within the relevant
historical context there must still be evidence capable of supporting precise
charges to justify criminal prosecution. Despite the extensive arguments which
have been advanced I am unable to see any basis upon which the allegations
relied upon by the applicants and intervenors could be said to raise an
arguable case that any of the potential defendants have been guilty of acts
which fall within the definition in Article 2 of the Convention. That
definition requires not only that the alleged acts be of the kind stipulated in
paragraphs (a) to (e) inclusive but that they be committed "with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group".
In the present case it has not been shown that the alleged acts are of a kind
so stipulated and there is no evidence that they were committed with such
intent. It has been argued that in this context the concept of "intent" is not
synonymous with that of motive and extends to recklessness or even negligence.
Whilst I accept that the concepts of intent and motive are not co-extensive I
am unable to accept that the intent contemplated in Article 2 can extend to
mere negligence. Even if Article 2 were to be regarded to giving rise to an
offence of genocide recognised by the domestic law of Australia it would in my
view have to be construed strictly in view of the potentially grave criminal
liability thereby created. It may well be true that genocide may be committed
by acts which lead to the foreseeable destruction of a particular group even
though the acts were motivated by quite extraneous considerations.
name="fnB86" href="#fn86[90] However that does not mean that any acts
which have the effect of causing distress to members of a particular group will
constitute genocide. On the contrary, the proper exercise of the democratic
function within a multicultural society may frequently involve striking a
balance which will involve causing distress to members of particular ethnic
groups in order to protect the interests of others. In any event, having
considered all of the arguments advanced by the applicants and intervenors I
have been unable to find any evidence of acts that would give rise to an
arguable case against any of the proposed defendants.
81. Furthermore, there are other formidable legal obstacles in the path of any
such prosecution.
82. The most obvious is that the Commonwealth is entitled to exercise any
legislative power conferred upon it by the Constitution "in absolute freedom,
and without any interference or control whatever except that prescribed by the
Constitution itself."[91] If the legislative
power exists then ´no Court can inquire into the propriety of its exercise.'
name="fnB88" href="#fn88[92] Disputes as to the existence of a
parliamentary power, privilege or immunity may be determined by a court of
law[93] but it is for the parliament itself to
determine the occasion and manner of exercise name="fnB90"
href="#fn90[94]. It is not suggested that the Commonwealth lacked the
power to enact the Native Title Amendment Act and the Court cannot
therefore inquire into any question as to the propriety of the relevant
exercise of that power.
83. It is true that in Attorney General for the State of New South Wales
& Ors v Trethowan & Ors[95] the
High Court upheld a decision of the Supreme Court of New South Wales which
involved the grant of an injunction restraining the presentation of a Bill to
abolish the Legislative Council. However, in the subsequent case of Hughes
and Vale Pty Ltd v Gair & Ors[96]
Dixon CJ, who had been a member of the court which decided Trethowan's
Case, said that the issue of whether the injunctions should have been
granted by the Supreme Court had been excluded from the ambit of the appeal to
the High Court as a condition of the grant of special leave. He revealed that
he had long entertained doubts as to the correctness of the decision and said
that "we do not think (an injunction) should be granted on this occasion, or
later or in any case". In any event, it now seems clear that courts may not
pass judgment upon any conduct that forms part of proceedings in Parliament.
name="fnB93" href="#fn93[97]
84. This principle that courts cannot inquire into the propriety of
parliamentary proceedings seems to have been based upon Article 9 in s1 of the
Bill of Rights 1688[98] the relevant
portion of which is substantially reproduced in s16 of the Parliamentary
Privileges Act 1987 (Cth). In Sankey v Whitlam & Ors
name="fnB95" href="#fn95[99] Gibbs ACJ said that the purpose of article 9
of the earlier statute was that a Member should be able to speak in Parliament
with impunity and without fear of the consequences. In R v Murphy
name="fnB96" href="#fn96[100] Hunt J suggested that the mischief which
the Act had been enacted to remedy was the availability of legal process
permitting legal consequences to be visited upon Members for what they had said
and done in Parliament. As Carruthers J pointed out in R v Jackson
name="fnB97" href="#fn97[101], Article 9 goes to the very heart of the
democratic system of government. It is of critical importance to the
maintenance of such a system that elected Members are free to act in the manner
that they consider to be in the national interest without fear of punishment.
85. Consequently, the law has recognised for centuries the principle that in
speaking to a Bill or voting on a Bill a Member of Parliament cannot be held to
have committed a crime.[102] For this reason
it has been held that a member of Parliament cannot commit a breach of
Official Secrets legislation by revealing in Parliament information the
disclosure of which in other circumstances would constitute an offence.
name="fnB99" href="#fn99[103] It appears that a Member of Parliament
cannot commit any crime in relation to the conduct of parliamentary business
and this extends to his or her participation in debates and asking questions.
name="fnB100" href="#fn100[104]
86. These principles preclude the prosecution of any Members of the
Commonwealth Parliament based upon the introduction of the Native Title
Amendment Bill. In my view the same principles must be taken to extend to
omissions in the conduct of parliamentary business. Consequently they would
also preclude any prosecution based upon a perceived failure to legislate to
give effect to the provisions of the Convention on the Prevention and
Punishment of the Crime of Genocide.
87. The "ten point plan" may not have been formulated as part of conduct of the
business of Parliament and it may therefore be argued that it is not covered by
these principles. However, it was plainly a policy which the Prime Minister
and others who had been involved in its formulation intended would form the
basis for legislation. It would defeat the important public policy
considerations to which I have referred if the protection given to Members of
Parliament against prosecution for introducing or supporting legislation could
be circumvented by prosecuting them for the antecedent formulation of the
policies reflected in that legislation. Accordingly, I am inclined to think
that the principle that a Member of Parliament cannot commit a crime in
relation to the conduct of parliamentary business must have some application to
the formulation of policy outside the Parliament. It could not, of course,
have the effect of protecting a Member of Parliament from prosecution for
public statements involving the disclosure of official secrets or otherwise
constituting criminal offences because such statements could not be regarded as
falling within the concept of the conduct of parliamentary business. However,
the formulation of legislative policy is as much part of the conduct of
parliamentary business as the presentation of a Bill to enact that policy into
law.
88. In any event, the mere formulation of the ten point plan could have had few
practical implications save to the extent that it became law by virtue of the
Native Title Amendment Act 1998 and, for the reasons previously given,
no Member of Parliament could be prosecuted for being involved in the enactment
of that statute. It has not been suggested that any of the proposed defendants
made statements concerning the ten point plan which amounted to racial
vilification or otherwise constituted an offence.
89. It is true that Article 4 of the Convention provides that those committing
genocide shall be punished whether they are "constitutionally responsible
rulers, public officials or individuals." name="fnB101"
href="#fn101[105] However, for the reasons given earlier, I am unable to
find that this or any other provision of the Convention has been imported into
the domestic law of Australia under which the present application must be
determined.
90. The other allegations are of unspecified acts and/or omissions. There is
nothing in the material which has been placed before relating to the nature of
any such acts and omissions or to suggest that there is an arguable case in
relation to these allegations.
91. For these reasons I am unable to accede to the applications for an order
nisi. It would be quite wrong to make such an order when the contemplated
prosecutions would be doomed to failure.
92. The applicants and intervenors and those whom they represent are inheritors
of a legacy of violence and dispossession. Their peoples have suffered much
and remain disadvantaged not only in terms of material needs but also in terms
of their emotional and spiritual needs. Even now when the Australian community
has done much to overcome the prejudices of the past and forge a more
egalitarian society they remain subject to bigotry and suspicion. Much is
undoubtedly due to ignorance and misunderstanding. Australian governments have
not always been candid about the nature and extent of the atrocities inflicted
on Aborigines. Indeed, they have sometimes sought to conceal them.
name="fnB102" href="#fn102[106] Even people who have grown up in
Australia frequently have little knowledge of the manner in which the land
which provides our homeland was wrested from its original occupants or of the
extent to which these dispossessed peoples remain alienated and disadvantaged.
It is to be hoped that increasing public awareness will lend greater impetus to
the movement for reconciliation and assuage some of the misery caused by the
wrongs of the past and the deprivation of the present. In this context one can
understand the applicants seeking to invoke the jurisdiction of the Court in an
attempt to obtain some redress for their grievances. Nonetheless, the power of
the Court is more limited than some seemed to appreciate. I have no power to
depart from established legal principles or to intervene in matters which fall
within the province of Parliament. My only role is to rule on the legal issues
raised in the proceedings before me. In the present case I have concluded that
the proposed prosecutions were essentially misconceived. Consequently the
application must be dismissed.
93. In the absence of any submission to the contrary I propose making no order
as to costs.
FOOTNOTES
[1] For a convenient discussion of Aboriginal
religions see Religious Business, Essays on Australian Aboriginal
Spirituality, ed by M Charlesworth, Cambridge University Press, 1997. See
also RM & CH Berndt, The World of the First Australians, 1981, esp
at 122.
[2] Adopted by Resolution 260 (III) A of the
United Nations General Assembly on 9 December 1948.
[3] Bennett & Castles, British
Admiralty, 1979 at 254.
[4] H.R.A. (1914) Series 1, vol 1, pp 13-14,
quoted fully by Deane & Gaudron JJ in Mabo v Queensland [No 2]
[1992] HCA 23; (1992) 175 CLR 1 at 97.
[5] In the 19th century the term
´possessions' referred to territory subject to a ruler or state: Reynolds &
Dalziel ´Aborigines and Pastoral Leases - Imperial and Colonial Policy 1826
- 1855' 19 UNSW Law Journal (1996) 315 at 325.
[6] T Buxton, Address to His Majesty the King,
House of Commons, CO 323/218; quoted by Reynolds & Dalziel at 323.
[7] Reynolds & Dalziel, at 316.
[8] James Stephen, memorandum on: Governor
Gipps to Lord Glenelg, Despatch No 65, 6 April 1839. Quoted in Reynolds &
Dalziel, at 316.
[9] Ibid.
[10] Letter to Lord Glenelg, marginal note, 22
July 1839, CO 201/286, quoted in Reynolds & Dalziel, at 317.
[11] Governor Gipps, ´Notice: Aborigines' No
418 NSW Government Gazette, 22 May 1839 at 606. Cited in Reynolds &
Dalziel, at 318.
[12] Reynolds & Dalziel, at 327-328.
[13] Report G A Robinson to Colonial Office
(1847) enclosure in Despatch No 107 Sir Charles FitzRoy to Earl Grey, 17 May
1847, quoted by Reynolds & Dalziel at 355.
[14] Quoted by Reynolds & Dalziel at
357.
[15] Reynolds & Dalziel, at 359.
[16] Despatch 134 dated 6 August 1849, quoted
by Reynolds & Dalziel at 363.
[17] Ibid at 364-365.
[18] Government Gazette (WA), 17
December 1850 at 1-4; cited in Western Australia v The Commonwealth
[1995] HCA 47; (1995) 69 ALJR 309 at 319-320.
[19] Government Gazette (SA), 7
November 1850 at 629-631.
[20] Marginal note on a minute from Gairdner
to Merrivale appended to Despatch No 120, 11 June 1849, CO 201/414, quoted in
part by Reynolds & Dalziel, at 372 fn 294.
[21] The Australian Constitutions Act
1850, s 1.
[22] The Australian Constitutions Act
1850, ss 7&9.
[23] Earl Grey to Sir Charles FitzRoy,
Despatch No 26, 10 February 1850, CO 208/58, quoted in part by Reynolds &
Dalziel, at 372.
[24] See generally JM Ward, Colonial
Self-Government The British Experience 1759-1856 (1976), ch 9; B
Clark, Native Liberty, Crown Sovereignty (1990); and Reynolds &
Dalziel, at 371-372.
[25] Mabo v Queensland [No 2] per
Deane & Gaudron JJ at 99.
[26] The path to reconciliation, The
Commonwealth of Australia, 1997. See also The Little Red Yellow & Black
Book, Australian Institute for Aboriginal and Torres Strait Islander
Studies, 1994 at 43.
[27] Special article by the Aboriginal and
Torres Strait Islander Commission, Statistics on the Indigenous Peoples of
Australia, Year Book Australia 1994, Australian Bureau of Statistics, 411
at 412.
[28] See, for example, B Elder, Blood on
the Wattle: Massacres and Maltreatment of Australian Aborigines since 1788,
Child & Ass, Frenchs Forest, 1988; P Wilson, Black Death White
Hands, George Allen & Unwin, Stdney, 1982; J Roberts, Massacres to
Mining: The Colonisation of Aboriginal Australia, Dove, Blackburn Vic,
1981, and J Wright, Cry for the Dead, Oxford UP, Melbourne, 1981
[29] E M Curr cited in Woolmington,
Aborigines in Colonial Society, 1788 - 1850; From ´Noble Savage' to ´Rural
Pest', 1973 at 63-64.
[30] Ibid.
[31] See generally Reynolds, The Other
Side of the Frontier: Aboriginal Resistance to the European Invasion of
Australia, 1982 and Robinson & York, The Black Resistance,
1977.
[32] Hughes, The Fatal Shore, 1987, at
277-278.
[33] Cited in Woolmington, Aborigines
at 54. Cited in Hughes, The Fatal Shore at 278.
[34] Hughes, The Fatal Shore, 1987, at
414.
[35] Robson, A History of Tasmania,
1983 at 214-215.
[36] Despatch to Governor Arthur 5 November
1830
[37] For a concise account of the demise of
Aboriginal people in Tasmania see Hughes, The Fatal Shore, 1987, at
414-424.
[38] See, for example, the reference to the
policy of the Aborigines Protection Board for Aboriginal State Wards in
Royal Commission into Aboriginal Deaths in Custody, Report of the Inquiry
into the Death of Malcolm Charles Smith (unreported 11 April 1989) per
Commissioner JH Wootten QC at 10.
[39] Commentaries Book 1, Ch 4 at 106-108.
Cited in Mabo v Queensland [No 2] at 34.
[40] 17th Ed, Book 1, Ch 4 at
107.
[41] Blankard v Galdy (1693), Holt
KB 341 [1738] EngR 444; [90 ER 1089]. Cited in Mabo v Queensland [No 2] at 35.
[42] See, for example, Campbell v Hall
(1774). Lofft at 741 [98 ER at 895-896.] Cited in Mabo v Queensland
[No 2] at 35.
[43] The "Indian Chief" (1801) 3C.
Rob 12 at 28-29 [165 ER 367, at 373-374].
[44] Mabo v Queensland [No 2] at
39.
[45] Lindley, The Acquisition and
Government of Backward Territory in International Law (1926) Chapters III
and IV. Cited in Mabo v Queensland [No 2] at 32.
[46] Vattel, Law of Nations (1797)
Book 1 at 100-101. See also Castles, An Australian Legal History (1982)
at 16-17. Cited in Mabo v Queensland [No 2] at 33.
[47] Campbell v Hall (1774) Lofft at
745 [98 ER at 898]. Cited in Mabo v Queensland [No 2] at 36.
[48] Mabo v Queensland [No 2] at 39.
[49] Milirrpum v Nabalco Pty Ltd
(1971) 17 FLR 141 at 267.
[50] Blackstone's Commentaries, Book
II, Ch 1 at 8.
[51] Case of Tanistry (1608) Davis 28
[80 ER 516]; 4th ed Dublin (1762) English translation 78, at
110-111; Witrong and Blany [1685] EngR 4051; (1674) 3 Keb 401 at 402 [84 ER 789 at 789];
and Mabo v Queensland [No 2] per Brennan J at 49.
[52] Cited by Lindley, The Acquisition and
Government of Backward Territory in International Law, (1926) at 41.
[53] Cooper v Stewart (1889) 14 App
Cas 286 at 291.
[54] Per Brennan J in Mabo v Queensland [No
2] at 29.
[55] Re Southern Rhodesia [1919] AC
211 per Lord Sumner at 233. Cited in Mabo v Queensland [No 2] at 39.
[56] Re Southern Rhodesia at 233-234.
Cited in Mabo v Queensland [No 2] at 39.
[57] Oduntan Onisiwo v Attorney-General
for Southern Nigeria (1912) 2 Nig LR 77.
[58] Amodu Tijani v Secretary, Southern
Nigeria [1921] 2 AC 399 per Lord Haldain at 407.
[59] Amodu Tijani v Secretary, Southern
Nigeria at 409-410.
[60] Milirrpum v Nabalco Pty Ltd
(1971) 17 FLR 141 at 244.
[61] Gerhardi v Brown (1985) 159 CLR
70 at 149.
[62] See footnote 51.
[63] See generally H. C. Coombs,
Aboriginal Autonomy: Issues and Strategies, 1994 at 210 - 213.
[64] (1996) 187 CLR 1.
[65] The Native Title Amendment Act
1998 (Act No 97 of 1998).
[66] Special article by the Aboriginal and
Torres Strait Islander Commission, Statistics on the Indigenous Peoples of
Australia, Year Book Australia 1994, Australian Bureau of Statistics, 411
at 415. In fact the gap is widening. See the letter by Prof I Ring,
Australian Journal of Public Health, 1995, vol 19, no 3 at 228.
[67] In the matter of Citizen Limbo
(1989) 92 ALR 81 at 82-83.
[68] s 26(3) of the Interpretation Act
1967 (ACT).
[69] [1924] SASR 220.
[70] Ibid, at 229.
[72] See, for example, Re Loveday &
Anor: Ex Clyne (1984) 61 ALR 136.
[73] Kruger and Ors v Commonwealth of
Australia [1997] HCA 27; (1997) 190 CLR 1 per Dawson J at 70, Toohey J at 87 and Gummow J
at 159).
[74] Chow Hung Ching and Another v The
King [1948] HCA 37; (1948) 77 CLR 449; Bradley v The Commonwealth of australia and
Another (1973)128 CLR 557; Simsek v Macphee and Another
(1982) 148 CLR 636; Koowarta v Bjelke Petersen [1982] HCA 27; (1982) 153 CLR 168;
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh
[1995] HCA 20; (1995) 183 CLR 273; and Deitrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
[75] Minister of State for Immigration and
Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273.
[76] See Mabo v Queensland [No 2] per
Brennan J at 42.
[77] Mabo v Queensland [No 2] at 29.
[78] Ibid.
[79] R v Rogerson [1992] HCA 25; (1992) 174 CLR 268
at 304.
[80] (1989) 92 ALR 81 at 83.
[81] Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide (1951) ICJ 15 majority
opinion at 23. See also the article by Lofgren & Kilduff, Genocide and
Australian Law, in Aboriginal Law Bulletin, Vol 3, No 70, October 1994, 6
at 7.
[82] See for example, Maurizio Regazzi, "The Concept of International
Obligations Erga Omnes", Oxford, Clarendon Press, 1997, at 43-73.
[83] See, for example, Maurizio Regazzi, "The
Concept of International Obligations Erga Omnes", Oxford, Clarendon
Press, 1997, at 1-17.
[84] ICJ Reports 1970 at 32.
[85] Lemkin, ´Axis Rule in Occupied
Europe, (Carnegie Endowment for International Peace, Washington, 1944) at
79
[86] See, for example, Israel W Charny,
"Toward a Generic Definition of Genocide", in Andreopoulos (Ed) "Genocide:
Conceptual and Historical Dimensions" (University of Pennsylvania Press,
1994); Ward Churchill, "Genocide: Toward a Functional Definition",
alternatives, Vol 11, No 3 1986 pp 403-430; Leo Kuper, "Genocide, its
Political Use in the Twentieth Century" (Yale University Press, 1981);
Helen Fein, "Genocide: A Psychological Perspective", current
psychology, Vol 38 No 1 1990, pp 1-101; and Frank Chalk and Kurt Johassohn,
"The History and Sociology of Genocide" (Yale University Press, 1990).
[87] See, for example, the discussion by
Alain Destexhe in Rwanda and Genocide in the Twentieth Century, New York
University Press, 1995.
[88] The Commonwealth v Tasmania [The
Tasmanian Dam Case] [1983] HCA 21; (1983) 158 CLR 1 at 180.
[89] Royal Commission into Aboriginal
Deaths in Custody, Report of the Inquiry into the Death of Malcolm Charles
Smith (unreported 11 April 1989) per Commissioner JH Wootten QC at 76-77,
[90] See, for example, Leo Kuper Genocide,
Its Political use in the 20th Century, Yale University Press
1981.
[91] D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91
at 110-111.
[92] D'Emden v Pedder at 119.
[93] The Queen v Richards; ex parte
Fitzpatrick and Brown [1955] HCA 36; (1955) 92 CLR 157 at 162.
[94] Egan v Willis and Cahill
(unreported NSW Court of Appeal 29 November 1996).
[95] [1931] HCA 3; (1931) 44 CLR 394.
[96] [1954] HCA 73; (1954) 90 CLR 203.
[97] See, for example, Church of
Scientology of California v Johnson-Smith [1972] 1 QB 522.
[98] De Smith, Judicial Review of
Administrative Action, 3rd ed, Stevens & Sons, London 1973,
at 414.
[99] (1978) 142 CLR 1 at 35.
[100] (1986) 5 NSWLR 18 at 30.
[101] (1987) 8 NSWLR 116 at 121.
[102] See, for example, Sir John Eliot's
[103] Sandy's Case (1938-39) HCP No
101.
[104] See the discussion by Enid Campbell
in Parliamentary Privilege in Australia, 1966, at 44.
[105] Though a current head of state is
immune from criminal process under customary international law: see, for
example, R v Bartle and the Commissioner of Police for the Metropolis &
Ors, Ex Parte Pinochet (unreported House of Lords 25 November 1998).
[106] To take but one example, it appears
that in 1961 the Department of External Affairs issued a ´Guidance Savingram'
to diplomatic posts suggesting, inter alia, that notions of genocide were to be
dismissed and the loss of life recorded since 1788 explained as the result of
illnesses caught from Europeans and the fact that part-Aborigines did not
always declare themselves to be Aboriginal. See Jennifer Clark, Something
to Hide: Aborigines and the Department of External Affairs, January 1961 -
January 1962, Journal of Australian Historical Society, June 1997, Vol 83,