Nulyarimma v Thompson
Encyclopedia
Nulyarimma v Thompson was an Australian court case decided by the Federal Court of Australia
. Two separate cases, Nulyarimma v Thompson and Buzzacott v Minister for the Environment were heard in conjunction. In both cases, members of the Aboriginal
community alleged that certain members of the Australian Parliament
and government ministers had committed genocide. The case was decided in favour of the Government.
proposed a “ten point plan” to reform the operation of native title
in Australia
. The plan eventually became the Native Title Amendment 1998. The appellants claimed that the consequences of the “ten point plan” amounted to genocide
as it severely restricted and disadvantaged Indigenous Australians
' land ownership, livelihood and mental health.
, and the Minister for the Environment, Robert Hill
, formally refused to pursue the World Heritage listing
of Lake Eyre
, instead allowing a mining company, BHP Billiton
to commence mining operations. The appellant, Kevin Buzzacott
, claimed that Downer's
failure to pursue World Heritage listing
amounted to genocide against his people.
QC
and S Senathiraja argued for the appellants that genocide is a part of customary international law
, and that even without legislation criminalising genocide within Australia, Australian courts can try individuals accused of genocide. The “ten point plan” constituted genocide because it was a deliberate attempt to destroy the Aboriginal race. The appellants, particularly Ms Nulyarimma, gave evidence to the Court of attempted genocide. Further, Burnside QC argued that the respondent’s failure to pursue the World Heritage listing of Lake Eyre
amounted to genocide as BHP's mining operations threatened the flora, fauna and livelihood of his people by allegedly draining the Lake.
H Burmester QC
, M Perry and R Bayliss argued on behalf of the respondents that customary international law did not form a part of Australian domestic law and therefore no Australian court has jurisdiction
to try individuals for genocide.
. In his second reading speech, Senator Brian Greig
drew to the attention of parliament the gaps in Australia's criminal law and the need to pass legislation to implement the United Nations
Convention on the Prevention and Punishment of the Crime of Genocide
which Australia ratified in 1949.
The bill was referred by the Senate
to the Senate Legal and Constitutional Reference Committee on 14 October 1999. It was eventually scrapped in favour of the with the International Criminal Court Bill which adopted the United Nations Rome Statute of the International Criminal Court
. In 2002, the International Criminal Court Act 2002 was passed, declaring genocide a crime.
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
. Two separate cases, Nulyarimma v Thompson and Buzzacott v Minister for the Environment were heard in conjunction. In both cases, members of the Aboriginal
Indigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
community alleged that certain members of the Australian Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
and government ministers had committed genocide. The case was decided in favour of the Government.
Nulyarimma v Thompson
In 1997, the Coalition partyCoalition (Australia)
The Coalition in Australian politics refers to a group of centre-right parties that has existed in the form of a coalition agreement since 1922...
proposed a “ten point plan” to reform the operation of native title
Native title
Native title is the Australian version of the common law doctrine of aboriginal title.Native title is "the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs"...
in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
. The plan eventually became the Native Title Amendment 1998. The appellants claimed that the consequences of the “ten point plan” amounted to genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
as it severely restricted and disadvantaged Indigenous Australians
Indigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
' land ownership, livelihood and mental health.
Buzzacott v Minister for the Environment
In April 1999, the Minister for Foreign Affairs, Alexander DownerAlexander Downer
Alexander John Gosse Downer is a former Australian Liberal Party politician who was Foreign Minister of Australia from March 1996 to December 2007, the longest-serving in Australian history...
, and the Minister for the Environment, Robert Hill
Robert Hill
Robert Hill may refer to:*Robert Hill , former Australian Senator, Defence Minister and Ambassador to the United Nations*Robert Andrews Hill , U.S. federal judge*Robert C. Hill , American diplomat...
, formally refused to pursue the World Heritage listing
World Heritage Site
A UNESCO World Heritage Site is a place that is listed by the UNESCO as of special cultural or physical significance...
of Lake Eyre
Lake Eyre
Lake Eyre is the lowest point in Australia, at approximately below sea level, and, on the rare occasions that it fills, it is the largest lake in Australia and 18th largest in the world...
, instead allowing a mining company, BHP Billiton
BHP Billiton
BHP Billiton is a global mining, oil and gas company headquartered in Melbourne, Australia and with a major management office in London, United Kingdom...
to commence mining operations. The appellant, Kevin Buzzacott
Kevin Buzzacott
Kevin Buzzacott , often referred to as Uncle Kev as an Aboriginal elder, is an Indigenous Australian from the Arabunna nation in northern South Australia...
, claimed that Downer's
Alexander Downer
Alexander John Gosse Downer is a former Australian Liberal Party politician who was Foreign Minister of Australia from March 1996 to December 2007, the longest-serving in Australian history...
failure to pursue World Heritage listing
World Heritage Site
A UNESCO World Heritage Site is a place that is listed by the UNESCO as of special cultural or physical significance...
amounted to genocide against his people.
Arguments
Julian BurnsideJulian Burnside
Julian William Kennedy Burnside AO QC is an Australian barrister, human rights and refugee advocate, and author. He is known for his staunch opposition to the mandatory detention of asylum seekers, and has provided legal counsel in a wide array of high-profile cases...
QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
and S Senathiraja argued for the appellants that genocide is a part of customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
, and that even without legislation criminalising genocide within Australia, Australian courts can try individuals accused of genocide. The “ten point plan” constituted genocide because it was a deliberate attempt to destroy the Aboriginal race. The appellants, particularly Ms Nulyarimma, gave evidence to the Court of attempted genocide. Further, Burnside QC argued that the respondent’s failure to pursue the World Heritage listing of Lake Eyre
Lake Eyre
Lake Eyre is the lowest point in Australia, at approximately below sea level, and, on the rare occasions that it fills, it is the largest lake in Australia and 18th largest in the world...
amounted to genocide as BHP's mining operations threatened the flora, fauna and livelihood of his people by allegedly draining the Lake.
H Burmester QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
, M Perry and R Bayliss argued on behalf of the respondents that customary international law did not form a part of Australian domestic law and therefore no Australian court has jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
to try individuals for genocide.
Judgment
Whitlam and Wilcox JJ ruled that customary international law did not form a part of Australian law and therefore genocide was not a crime under Australian law in the absence of legislation declaring genocide a crime. Merkel J dissented, finding that customary international law was incorporated into Australian law because of its status as jus cogens, but ultimately found that, because the respondents had no intent to commit genocide, the appellants' claim failed.Aftermath
In response to Nulyarimma v Thompson, parliament moved to criminalise genocide by legislation. The Anti-Genocide Bill was a private members bill introduced by the Australian DemocratsAustralian Democrats
The Australian Democrats is an Australian political party espousing a socially liberal ideology. It was formed in 1977, by a merger of the Australia Party and the New LM, after principals of those minor parties secured the commitment of former Liberal minister Don Chipp, as a high profile leader...
. In his second reading speech, Senator Brian Greig
Brian Greig
Brian Andrew Greig OAM , Australian politician, was an Australian Democrats member of the Australian Senate from 1999 to 2005, representing the state of Western Australia....
drew to the attention of parliament the gaps in Australia's criminal law and the need to pass legislation to implement the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
Convention on the Prevention and Punishment of the Crime of Genocide
Convention on the Prevention and Punishment of the Crime of Genocide
The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly on 9 December 1948 as General Assembly Resolution 260. The Convention entered into force on 12 January 1951. It defines genocide in legal terms, and is the culmination of...
which Australia ratified in 1949.
The bill was referred by the Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
to the Senate Legal and Constitutional Reference Committee on 14 October 1999. It was eventually scrapped in favour of the with the International Criminal Court Bill which adopted the United Nations Rome Statute of the International Criminal Court
Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...
. In 2002, the International Criminal Court Act 2002 was passed, declaring genocide a crime.