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

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

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

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

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

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

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

Instruction Book" which Governor Phillip brought to Botany Bay twenty years

"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

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

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

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

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

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

"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

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

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

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

". . . 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

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 application of 15% of the Land Fund for the benefit, civilisation and

* a measure of legal recognition which extended to matters such as the

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

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

"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."

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

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

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

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"

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

25. In 1850 the Port Phillip District was separated from New South Wales to

Legislative Councils were established in Victoria, South Australia and Western

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"

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

Governor Gipps' dire prediction that Aborigines would "ere long cease to be

numbered amongst the Races of the Earth" had almost been fulfilled.

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

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

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

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"

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

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

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

"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"

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

However, the application of English sovereignty to uninhabited territory was

clear. It was "terra nullius", land which belonged to no-one, and there were

35. The principle that the existing laws of conquered or ceded territories

would continue to apply until overruled by the conqueror had been established

English settlers were regarded as living under the law of England if a local

and this rule was even extended to English people living in eastern countries

which were not subject to British sovereignty. name="fnB41"

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

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

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

"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"

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

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"

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

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

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:

"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

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.

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.

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

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

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

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

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

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

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

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"

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"

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

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

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

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

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.

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

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

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

"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

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

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

"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

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

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

international law may be a legitimate and important influence on the

development of the common law, especially when international law declares the

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

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

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

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

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

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

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

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

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

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

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

"any of the following acts committed with intent to destroy, in

whole or in part, a national, ethnical, racial or religious group, as such:

(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

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:

"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

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

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

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

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

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

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

83. It is true that in Attorney General for the State of New South Wales

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

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.

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

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

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.

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

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

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

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

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

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

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

93. In the absence of any submission to the contrary I propose making no order

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

United Nations General Assembly on 9 December 1948.

quoted fully by Deane & Gaudron JJ in Mabo v Queensland [No 2]

[1992] HCA 23; (1992) 175 CLR 1 at 97.

´possessions' referred to territory subject to a ruler or state: Reynolds &

Dalziel ´Aborigines and Pastoral Leases - Imperial and Colonial Policy 1826

House of Commons, CO 323/218; quoted by Reynolds & Dalziel at 323.

Gipps to Lord Glenelg, Despatch No 65, 6 April 1839. Quoted in Reynolds &

July 1839, CO 201/286, quoted in Reynolds & Dalziel, at 317.

418 NSW Government Gazette, 22 May 1839 at 606. Cited in Reynolds &

(1847) enclosure in Despatch No 107 Sir Charles FitzRoy to Earl Grey, 17 May

December 1850 at 1-4; cited in Western Australia v The Commonwealth

[1995] HCA 47; (1995) 69 ALJR 309 at 319-320.

to Merrivale appended to Despatch No 120, 11 June 1849, CO 201/414, quoted in

Despatch No 26, 10 February 1850, CO 208/58, quoted in part by Reynolds &

Self-Government The British Experience 1759-1856 (1976), ch 9; B

Clark, Native Liberty, Crown Sovereignty (1990); and Reynolds &

Commonwealth of Australia, 1997. See also The Little Red Yellow & Black

Book, Australian Institute for Aboriginal and Torres Strait Islander

Torres Strait Islander Commission, Statistics on the Indigenous Peoples of

Australia, Year Book Australia 1994, Australian Bureau of Statistics, 411

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

Aborigines in Colonial Society, 1788 - 1850; From ´Noble Savage' to ´Rural

Side of the Frontier: Aboriginal Resistance to the European Invasion of

Australia, 1982 and Robinson & York, The Black Resistance,

Aboriginal people in Tasmania see Hughes, The Fatal Shore, 1987, at

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

KB 341 [1738] EngR 444; [90 ER 1089]. Cited in Mabo v Queensland [No 2] at 35.

(1774). Lofft at 741 [98 ER at 895-896.] Cited in Mabo v Queensland

Government of Backward Territory in International Law (1926) Chapters III

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.

745 [98 ER at 898]. Cited in Mabo v Queensland [No 2] at 36.

(1971) 17 FLR 141 at 267.

[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.

Government of Backward Territory in International Law, (1926) at 41.

211 per Lord Sumner at 233. Cited in Mabo v Queensland [No 2] at 39.

for Southern Nigeria (1912) 2 Nig LR 77.

Nigeria [1921] 2 AC 399 per Lord Haldain at 407.

(1971) 17 FLR 141 at 244.

Aboriginal Autonomy: Issues and Strategies, 1994 at 210 - 213.

[64] (1996) 187 CLR 1.

[65] The Native Title Amendment Act

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.

(1989) 92 ALR 81 at 82-83.

[68] s 26(3) of the Interpretation Act

[69] [1924] SASR 220.

[71] (1969) 71 SR (NSW) 291.

Anor: Ex Clyne (1984) 61 ALR 136.

Australia [1997] HCA 27; (1997) 190 CLR 1 per Dawson J at 70, Toohey J at 87 and Gummow J

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.

Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273.

[79] R v Rogerson [1992] HCA 25; (1992) 174 CLR 268

[80] (1989) 92 ALR 81 at 83.

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

[82] See for example, Maurizio Regazzi, "The Concept of International

Obligations Erga Omnes", Oxford, Clarendon Press, 1997, at 43-73.

Concept of International Obligations Erga Omnes", Oxford, Clarendon

Europe, (Carnegie Endowment for International Peace, Washington, 1944) at

"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).

Alain Destexhe in Rwanda and Genocide in the Twentieth Century, New York

Tasmanian Dam Case] [1983] HCA 21; (1983) 158 CLR 1 at 180.

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,

Its Political use in the 20th Century, Yale University Press

[91] D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91

Fitzpatrick and Brown [1955] HCA 36; (1955) 92 CLR 157 at 162.

[95] [1931] HCA 3; (1931) 44 CLR 394.

[96] [1954] HCA 73; (1954) 90 CLR 203.

Scientology of California v Johnson-Smith [1972] 1 QB 522.

Administrative Action, 3rd ed, Stevens & Sons, London 1973,

[99] (1978) 142 CLR 1 at 35.

[100] (1986) 5 NSWLR 18 at 30.

[101] (1987) 8 NSWLR 116 at 121.

Case (1629-1683) 3 St Tr 294.

in Parliamentary Privilege in Australia, 1966, at 44.

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).

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,

Pt 1, 71 at 79.