Nulyarimma & Ors v Thompson C18/1999 [2000] HCATrans 439 (4 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Registry No C18 of 1999

B e t w e e n -

WADJULARBINNA NULYARIMMA, ISOBELL COE, BILLY CRAIGIE and ROBBIE THORPE

Applicants

and

PHILLIP R. THOMPSON

Respondent

Registry No C19 of 1999

B e t w e e n -

KEVIN BUZZACOTT

Applicant

and

ROBERT MURRAY HILL, MINISTER FOR THE ENVIRONMENT

First Respondent

ALEXANDER JOHN GOSSE DOWNER, MINISTER FOR FOREIGN AFFAIRS AND TRADE

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

Applications for special leave to appeal

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 4 AUGUST 2000, AT 9.31 AM

Copyright in the High Court of Australia

_______________

MS F.P. HAMPEL, QC: May it please the Court, in those two matters, which is in effect one application, I appear with my learned friend, MR S.K. TUDOR, in the Nulyarimma matter, for two of the three applicants. That is for Nulyarimma and for Thorpe. I have no instructions to appear on behalf of Ms Coe, but the arguments that I will be putting in respect of the other two applicants are clearly as applicable to her as they to the others, and so I can put them as friend of the Court. Ms Coe is not present. In relation to the second matter, that of Buzzacott, we appear for both Mr Buzzacott and for the intervener, Mr T.Trevorrow. (instructed by Simon Northeast & Associates)

MR H.C. BURMESTER, QC: I appear with my learned friend, MS M.A. PERRY, in the second matter, for the respondent. (instructed by the Australian Government Solicitor)

MR R.T. BAYLISS: Your Honours, I appear on behalf of the respondent in the first matter. (instructed by the Australian Capital Territory Government Solicitor).

GUMMOW J: Is there any agreement between you and Mr Burmester as to who goes first if need be in response?

MR BAYLISS: I am happy for Mr Burmester to go first, your Honour.

GUMMOW J: Very well then, thank you. Yes, Ms Hampel.

MS HAMPEL: The special leave point in these applications concerns the importation of customary international law into municipal law, particularly a peremptory norm of customary international law, which imposes non-derogatable obligations upon a State. The question is, in that sense, then, whether to what extent, and in what manner, a peremptory norm is incorporated or imported into municipal law. That is the issue that is squarely raised by these applications. It is a novel question, in our submission, that has not been determined by this Court.

As a result of the Full Federal Court decision, we are left with a position where all three justices in the Full Federal Court accepted that genocide, or probably better put, the prohibition against genocide, formed part of customary international law, was a universal crime and as such was a peremptory norm of international customary - - -

MS HAMPEL: The elements of the crime are those that exist under the Genocide Convention but this is, by this application, a matter before the Full Federal Court concerned that as being an accepted definition of genocide under customary international law. This is not an application made under conventional law.

GUMMOW J: I understand that and I understand how you rely on the Convention. Where do we find the actual text?

MS HAMPEL: Of the Convention?

GUMMOW J: Yes.

MS HAMPEL: That is set out in paragraph 79 of the reasons for decision in the Full Federal Court in the decision of Justice Merkel, page 95 of the application book.

GUMMOW J: Thank you.

HAYNE J: And which of the elements - - -

MS HAMPEL: Sorry, it is page 95 of the application book in C18 of 1999.

GUMMOW J: Yes, I think we have it.

HAYNE J: Which of the elements there identified do you say are arguably engaged by the complaints that are made?

MS HAMPEL: There are two elements:

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.

KIRBY J: "Physical destruction".

MS HAMPEL: Yes.

KIRBY J: This seems to me the problem you have in the case, whether you come within the Convention definition because, if you do not, the issue you want to tender to the Court does not really arise.

MS HAMPEL: That is so. Well, the stronger one is clearly (b) but (c) also exists and it exists by virtue of the nature of the relationship between Aboriginal people and the land and the connection between people and the land and the dispossession, meaning that it is something that is calculated to bring about destruction.

HAYNE J: And the conduct that is said to engage this element is what?

MS HAMPEL: The conduct is in respect of the Buzzacott matter: the failure to take action which would preserve or protect the right of the Arabunna people to occupy their land and to have the land treated and regarded in a way that would not be inconsistent with or incompatible with their right of occupation; in other words, to ensure that mining does not occur or other inconsistent uses which would destroy the spiritual and physical connection with the land.

KIRBY J: Is there any decision of an international or municipal court which gives support to what on the face of things seems to be a broad and even excessive reading of the definition? I say that, because if you look at the common factor of the various paragraphs:

Killing members.....causing serious bodily or mental harm.....physical destruction.....prevent births.....forcibly transferring children -

all of those appear to have a physical element involving the body and life of persons in a very physical way and, of course, that can be understood if you remember how the Genocide Convention came about after the terrors of the Second World War. It manifested in the Second World War.

MS HAMPEL: The causing of mental harm to members of the group is something that does not carry with it a physical aspect. That can be - - -

KIRBY J: Remember, I have always have had a curiosity about this view of the common law. The mental is part of the mind, which originates in the brain, which is part of the body. So I do not know that it is entirely divorced from, unless we get into the mind/brain consciousness issue, it is not entirely divorced from the human body.

MS HAMPEL: In one sense, one does not need a physical act in order to cause mental harm - not in the sense of a physical - - -

KIRBY J: But what is the question? Is there any decision of a municipal court or of an international court or tribunal which suggests that the definition of "genocide" goes as far as you are trying to push it.

MS HAMPEL: We have not been able to find any, but when one looks at, not only this definition of "genocide" but when one considers the clear principle about the evolutionary nature of international law and the evolving nature of obligations of States, as between each other, and the people and State and State and people, and, unfortunately, as we see, changes in, or new ways of causing harm and destruction to people or to races, then one cannot, in our submission, unduly narrow the definition. One must take into account not just, if one likes, the areocentric nature of the debate that lead to the formulation of the Genocide Convention after the Second World War, but look at it in terms of its impact on a broader range of peoples. To look at it in terms of any national, ethnical, racial or religious group, not just an Anglo or European group, then one has to look at the effect of conduct causing, or likely to cause, or having the potential to cause mental harm by reason of, for example, the intense connection between the people and the land that exists within the Aboriginal communities.

HAYNE J: As I understood an answer you gave to my earlier question, the conduct upon which you would seek to rely was described as a failure to take action to preserve. Do I capture the essence of the proposition you put? Does that fall within "acts committed with intent to destroy", et cetera, in Article II? That is, does "omission" fall within "acts committed with intent to destroy"?

MS HAMPEL: One has to fall behind the first meaning of "act" to see whether act includes positive obligations to act and, therefore, whether "omission" is caught. Again, there does not seem to be any authority directly on point. But we would say that is not unusual because this is new law, a new area. It is new territory that has been opening up as there has been this gradual development of international law obligations.

GUMMOW J: Yes, but you seem to be inviting the municipal court to develop customary international law, rather than the other way round, rather than itself responding to what are developments in customary international law.

MS HAMPEL: It is clear that in order for a municipal court - - -

GUMMOW J: You see, you rely on the Convention as indicative of customary law and if that does not get you there in customary international law, you have to say, "Well, customary international law is, nevertheless, wider than the Convention", and then you have to say, "That is what is imported here into municipal law". There are three steps, I think.

MS HAMPEL: Customary international law is something that may need to be proved by evidence and the particular aspect of it - - -

GUMMOW J: That is what Justice Hayne and Justice Kirby are trying to find out.

MS HAMPEL: Yes. So, there is no decided authority but that, in our submission, is not conclusive of it because it is a matter that is required to be proved by evidence, not necessarily by a decision of another court either in this country or in any other country and there has not been the opportunity - - -

GUMMOW J: The evidence would have to go as to State practice, would it not?

MS HAMPEL: I am sorry, your Honour?

GUMMOW J: The evidence would have to go as to such matters as State practice?

MS HAMPEL: Yes, and there has not been the opportunity of putting that before the Court in respect of the strike-out application in the Buzzacott matter. There was some evidence in the Buzzacott matter. I see your Honour Justice Hayne looking at me - - -

HAYNE J: Simply that you are faced with a strike-out, I would have thought it was then time to put the best foot forward rather than say, "Oh, we might be able to put a foot forward later". Once the strike-out application is made, do you not then have to respond with whatever you have?

MS HAMPEL: Yes, but this may be that because the argument in a sense has been developing or crystallising particularly as a result of the decision of the Full Federal Court, the need to prove by evidence what customary international law in respect of genocide is at the present time and as applicable to Australia is really only thrown into sharp relief as a result of the decision of the Full Federal Court and particularly the reasons for the decision of Justice Merkel.

GUMMOW J: But we would have to act on the evidentiary basis they did.

MS HAMPEL: Yes, I acknowledge that there are considerable - - -

GUMMOW J: It may be what you are saying is that in another case you could put better evidence as to international practice, for example.

MS HAMPEL: Maybe that would have to be my fall-back position but, nonetheless, the point that is raised by this application is one of such significance and the law is in such a state of uncertainty that notwithstanding - - -

KIRBY J: There is no doubt that the general question you want to tender is of great significance. There are two questions of great significance: one, the extent to which municipal law incorporates and recognises without a treaty international law; and, secondly, whether it does so in the particular case of genocide, and particularly since the Pinochet decision in the House of Lords. They are very important questions, but this Court has to look to whether or not this is the appropriate vehicle in which to consider those large questions, whether it truly does tender it. If the sort of acts or omissions that are alleged here appear to fall outside the definition of "genocide", then there is a very real risk that those two very large and important questions will complete misfire and, indeed, may go the wrong way because the case is not an appropriate one to, as it were, allow the Court to test the perimeters of the law.

MS HAMPEL: Your Honour, it is because they are such important issues that, in our submission, the fact that this may not be the ideal vehicle is of less relevance and because, I suppose, the opening provided by the Pinochet decision and then the opening provided by the decision of the Full Federal Court in this case calls for a need for a determination by this Court notwithstanding that this may not be the best case because, as your Honour says, these are big issues. They are not going to go away and there is a real risk that people who wish to seek remedy relying upon the importation of international customary law into municipal law are going to be unable to exercise that relief because they will be put out at first instance by reason of what would stand as a majority decision of the Full Federal Court in this case. So they would be in a position where they would not get to a consideration on merits.

KIRBY J: But, for example, I could see in paragraph (e) the potential, at least arguably, for a much more powerful case.

MS HAMPEL: Indeed, yes.

KIRBY J: That is not the one that you are presenting to us now.

MS HAMPEL: No, that is so.

KIRBY J: Experience of the law and of legal development seems to teach that one should be very careful about venturing on large issues unless the facts truly present them and present them in a way that crystallises the important questions that have to be answered. That is why Justice Brennan was moved to say what he did in Mabo v Queensland, because it was a very important case and did tend to the issues.

MS HAMPEL: This is, in our submission - - -

GUMMOW J: After, I should say, there had been other cases in which the issue had not really matured. You complain about what is called the 10-point plan, do you not?

MS HAMPEL: That is a more difficult case on the facts. I would have to concede that. The Buzzacott Case is factually one that provides a better vehicle, although there is force in what the Court has been putting about the difficulties of it.

HAYNE J: The former case, the 10-point plan case, is one also in which there would be questions raised about Parliamentary Privileges Act 1987 and the like, would there not?

MS HAMPEL: There would be, yes.

HAYNE J: Do you have any submission to make about whether that Act would bite in a way that would affect the arguability of your case?

MS HAMPEL: There is some support in the observations of her Honour Justice Gaudron in Kruger for the fact that notwithstanding the Parliamentary Privileges Act there would have to be the very clearest of legislative intention expressed before a court could interpret legislation that had the effect of contravening the international customary law of genocide becoming accepted as part of municipal law.

GUMMOW J: But her Honour was not directing herself to the Bill of Rights and parliamentary privileges question.

MS HAMPEL: No, she was not. Her Honour was directing herself to whether section 122 of the Constitution was - - -

GUMMOW J: Yes, that is right. The Parliamentary Privileges Act is said to be without prejudice to what would otherwise flow under section 49 of the Constitution, privileges of the House of Commons, and that brings in the Bill of Rights of 1688 and so on.

MS HAMPEL: Yes. The only other support that we have been able to find for this proposition comes essentially from the observations of Justice Brennan in Polyukhovich in respect of the international nature of the crime of genocide when imported into domestic law, so, although it is imported into and becomes part of municipal law, nonetheless, it is international law that is being enforced and dealt with by the Court and that would seem to suggest that notwithstanding the Parliamentary Privileges and Immunities Act there is still this overarching obligation of international law that may impose some domestic limitation upon not only the Parliament to legislate in the Parliamentary Privileges Act but also on - - -

GUMMOW J: It is not just the Act, you see. The Act is said to not take away - is designed not to take away anything that the Parliament would otherwise have protecting itself under section 49 of the Constitution, bringing in the House of Commons. Do you see what I mean? There is a constitution norm as well behind it all, I think.

MS HAMPEL: Yes, and I suppose the best answer I can give to that is there is a need for some certainty or resolution in respect to that. There is an issue in respect of that that is not finally determined by what otherwise seems to be a pretty comprehensive dealing or disposal of the matter in the decision of the Full Federal Court here but, if one accepts the overarching nature of the fundamental obligations under international law in respect of those non-derogatable matters such as genocide, slavery and torture, then there is certainly room to say that whilst the Thompson Case is a more difficult one, there are some arguments that may well be appropriate, although, again, what his Honour Justice Kirby said in respect of the first matter, that is whether it is the best vehicle or not, also clearly has some merit, but they are arguable, respectable, not yet determined and not theoretical, not one off, not likely to go away and so - - -

KIRBY J: Can I ask you this, international law sometimes develops by and is evidenced in scholarly writings. What is the best scholarly text that expresses the hypothesis of the definition of genocide in the Convention or otherwise that supports your proposition?

MS HAMPEL: Possibly Brownlie. I was going to say possibly - - -

KIRBY J: Does Professor Brownlie or any of the international scholars support what appears on the face of it to be pushing the envelope of the definition of genocide in the Convention.

MS HAMPEL: Certainly Brownlie's views, particularly as quoted again by Justice Brennan in Polyukhovich, would give support for that and also perhaps Glueck who was quoted by Lord Millett in Pinochet.

KIRBY J: Lord Millett took the broadest view, did he not, in Pinochet, I think?

MS HAMPEL: He did, indeed.

KIRBY J: Yes.

MS HAMPEL: Lord Millett took the view that these fundamental aspects, the non-derogatable aspects of international customary law were - - -

KIRBY J: That is the first and the second issue. We are on the third issue and that is the question of whether it is presented in this case. Now, what is the point that Lord Millett - where do we find this?

MS HAMPEL: We find this from Lord Millett at page 914 where he is quoting both from - - -

GUMMOW J: This is the report of Pinochet?

MS HAMPEL: Yes, in the Pinochet Case.

GUMMOW J: [No 2]? No, [No 3].

MS HAMPEL: [No 3], that is right. Yes, it is the second House of Lords determination, the one without Lord Hoffmann. At page 914 Lord Millett referring to in Re Piracy Jure Gentium - - -

HAYNE J: For some reason the Commonwealth have been good enough to give us the All ER rather than - - -

MS HAMPEL: Your Honour, the Commonwealth was good enough to provide the authorities on our behalf and so - - -

HAYNE J: Yes, but not the Weeklies.

MS HAMPEL: - - - I do not want to be any part of criticism of them.

HAYNE J: So we are getting the wrong page is all I am saying, Ms Hampel, in a way that is not intended to level criticism at you.

MS HAMPEL: Thank you, your Honour.

KIRBY J: Anyway, read us just - if it is not a long passage.

MS HAMPEL: It is one page back from the end of Lord Millett's judgment.

HAYNE J: Thank you.

GUMMOW J: Paragraph beginning?

MS HAMPEL: The paragraph beginning:

My Lords, we have come a long way from what I earlier described - - -

HAYNE J: Page 180.

GUMMOW J: Yes.

MS HAMPEL:

- - - as the classical theory of international law - a long way in a relatively short time. But as the Privy Council pointed out in Re Piracy Jure Gentium international law has not become a crystallised code at any time, but is a living and expanding branch of the law. Sheldon Glueck `The Nuernberg Trial and Aggressive War' observed -

`... unless we are prepared to abandon every principle of growth for international law, we cannot deny that our own day has its right to institute customs ... Much of the Law of Nations has its roots in custom. Custom must have a beginning; and customary usages of states in the matter of national and personal liability for resort to prohibited methods of warfare and to wholesale criminalism have not been petrified for all time.'

KIRBY J: Ms Hampel, I am very sympathetic to that view myself but that does not answer - that is on point 1, the importance of the issue, point 2, the genocide incorporation, but point 3 is the one we have all been concentrating on, which is, where is there something in a high decision of a municipal court, an international tribunal or a scholar which supports the notion that you are advancing that the sort of things you complain of here constitute genocide under the Convention, because on the face of things they do not appear to do so and, therefore, you have got to get yourself into that and, as Justice Hayne has pointed out, basically on the materials that were before the courts below.

MS HAMPEL: And that is the difficulty.

KIRBY J: Indeed, it is but it is your difficulty and it is the Court's difficulty in giving you special leave.

MS HAMPEL: I have to come back to - and all I can put to the Court is that the principle is so fundamental that notwithstanding the inadequacy of the vehicle, it is one that should be determined now, sooner rather than later, and I would also say that the dearth of decision from this Court or from a higher court of another country bears out the point I am making and perhaps explains why I am not in a position to produce anything that does take it. It is this growing organic evolving thing and it is something that the Court has to - - -

KIRBY J: Yes, but it grows and evolves on a plant material which is provided in a large garden, and you have not been able to point to a single authority or a single scholar who supports the view of the genocide definition in the Convention that you are advancing to us. In those circumstances, it seems an impossible task to ask us to take this case on to deal with the two very important questions which depend upon a factual foundation. You do not get to the issues of principle and law, important though they are, unless you have the factual foundation for them. That is elementary.

MS HAMPEL: We appreciate that that was the problem with the factual substratum. There is nothing more that I can put because we have not been able to find anything by way of article or authority to advance it, other than the assertion that the conduct itself is capable, if evidence is to be produced, and it was not in Buzzacott, of causing mental harm to members of the group.

KIRBY J: The large issues will not go away, they will come back, but on another day.

GUMMOW J: I think we are seized of - - -

MS HAMPEL: Can I also say this, that one of the applicants wishes to make a personal statement to the Court. I have explained that there is no formal procedures for that - - -

GUMMOW J: How will that assist us?

MS HAMPEL: I am sorry, your Honour?

GUMMOW J: How will that assist? Having listened to the last half an hour of debate, how will a personal statement assist on these very deep and complicated questions of international municipal law?

MS HAMPEL: I suppose the best I can say is that it is not so much to provide legal assistance to the Court, but to advance, perhaps, argument much more eloquently than I can as to the significance of the capacity for cause of mental harm and the significance to the Aboriginal people of these issues. She wishes to be able to address the Court about that. The Full Federal Court gave her the opportunity to speak and part of what she said has been quoted in the judgment of the Full Federal Court.

GUMMOW J: Exactly, which we have read. We have read all the materials - - -

MS HAMPEL: She is here and she - - -

GUMMOW J: We have been assisted by what you have said.

KIRBY J: How long is the statement that she wishes to make?

MS HAMPEL: I do not know; it is not something that I have had anything to do with.

GUMMOW J: Do you wish to say anything in support of the intervention application?

MS HAMPEL: What I have said in respect of Mr Buzzacott applies equally, in our submission, to Mr Trevorrow.

KIRBY J: It would be irregular, exceptional and completely unusual where a counsel have appeared for a party to allow a party, notwithstanding, to say something. All that could be argued for it would be a courtesy. That is the only reason.

MS HAMPEL: Indeed, your Honour, and a courtesy that may be seen to be more significant, given the history of dispossession than it may be for other applicants who are represented.

GUMMOW J: But all applicants are equal before the law in this Court's eyes. If the Prime Minister of Australia were a litigant and he appeared by senior counsel, as no doubt he would, how would it be to the point that he wished to make a personal statement about the political importance of upholding the validity of some law of the Commonwealth?

MS HAMPEL: I would have much graver concerns about making application for the Prime Minister to address because of the political aspect of it.

GUMMOW J: Everyone is equal in the eyes of the Court and they appear by counsel.

MS HAMPEL: Indeed, yes. It is clearly a personal matter and a desire to have the Court understand it from a personal perspective as opposed to what may seem to be, as your Honour has pointed out, somewhat esoteric matters relating to international law.

GUMMOW J: But it is those matters on which we have to decide the application.

MS HAMPEL: Indeed. I appreciate that.

GUMMOW J: Yes, very well.

MS HAMPEL: If the Court pleases.

GUMMOW J: Yes, Mr Burmester.

MR BURMESTER: Your Honours, we do not dispute that the question of law as to whether genocide, a peremptory norm at international law, gives rise to causes of action under Australian law, is a question of much interest and importance. But, in our submission, that does not turn this into a suitable vehicle to agitate the question. In the circumstances of this case the Court's consideration of that issue, important as it would be, would be no more than an advisory opinion. As the Full Federal Court judgment indicates, there are other aspects of the Buzzacott matter which show that it is bound to fail.

It was an application for strike-out or dismissal on the ground the action disclosed no reasonable cause of action or was frivolous and vexatious or an abuse of process. In the end the court ordered that the proceeding be dismissed. Justice Merkel, who did embark on a consideration of the status of genocide in domestic law, had no difficulty in concluding that the conduct complained of, to use his words, was "plainly not capable of constituting genocide". That is in paragraph 231 of his judgment. He then turned to the specific claims that were made and at the heart of those claims is not genocide but the World Heritage Convention.

If I could take the Court to page 89 of the application book in the Buzzacott matter, to Justice Merkel's judgment - this is paragraph 204 of Justice Merkel's judgment where he sets out the application and the claims that are made - it is clear that what is alleged is the failure to proceed with an application for World Heritage listing of the lands in question. That is at the heart of the claim. The allegation that the acts are genocidal acts is, in a sense, a subsidiary aspect of the claim. In our submission, it is not correct to say that the issue here is the failure to take action to preserve or protect the rights of the Arabunna people to occupy their lands. The way the application is formulated, it is the failure to proceed with World Heritage listing of the lands which is then said to give rise to various breaches of duty and claims for damages. Your Honours will see that the relief sought, as set out by Justice Merkel, was:

a mandatory injunction compelling the......listing of the Arabunna lands;

an injunction restraining the respondents from permitting any activities....."which may in any way effect the World Heritage values of the Arabunna Lands";

So, in our submission, the allegations and the statement of claim do not focus on acts which, in any sense, could be seen as falling within the genocide definition. This led Justice Merkel to say that the claims were misconceived and Justices Wilcox and Whitlam agreed with Justice Merkel that, for these reasons, the proceeding should be dismissed. We submit that there is no basis on which this Court could properly grant special leave given the deficiencies in terms of the facts and the alleged causes of action.

KIRBY J: From your understanding in this area, which would be substantial, are you aware of any jurisprudence which has developed the notion of genocide, either within the terms of the Convention definition or in some elaboration of it, that extends the scope of genocide to, as it were, causing mental anguish and - - -

MR BURMESTER: Certainly, your Honour, we submit that the draft in history and subsequent practice clearly points to the fact that cultural genocide, suggestions that a person's culture has been attacked, does not amount to genocide within the meaning of the definition.

In paragraph 3.22 of our written submissions at page 122 of the application book, we set out the authorities on this. We do refer to an academic article in the Boston University Law Journal and, in particular, to Justice Dawson in Kruger v The Commonwealth.

GUMMOW J: Sorry, whereabouts is that, Mr Burmester.

MR BURMESTER: On page 122 of the application book.

GUMMOW J: Thank you.

KIRBY J: And what is the effect of the academic article? This is to describe the history of the book.

MR BURMESTER: It confirms that the clear intention of the drafters was not to pick up cultural genocide as part of the definition. So when it talks about mental harm or mental suffering and the various other elements in the definition, it would clearly - - -

GUMMOW J: There is the article by Lippman.

MR BURMESTER: That is right. The drafters were making a deliberate decision to exclude cultural genocide, as it is called. In other words, an attack on a group's culture as such, as opposed to the physical and mental suffering as set out in the definition. In our submission, if the alleged acts could be described as having any connection with genocide, it would have to be under the rubric cultural genocide and we say that that clearly is excluded from the international law of understanding of the term.

KIRBY J: Have there been debates in the international community about developing principles concerning cultural genocide, that you are aware of? Because if there had been, that would tend to suggest that it was accepted in the international community, that the Convention does not extend so far.

MR BURMESTER: Your Honour, my understanding is there have not been debates as such about enshrining that concept into particular treaties. There are provisions, for instance, in the international covenant on civil and political rights about protecting cultural values of particular communities, and there have been other conventions such as the convention on World Heritage protection, which also acknowledges cultural heritage as one of the categories for which a property may be listed. But they are done in the context of protecting cultural values as such, not in terms of seeking to outlaw or make it an offence to carry out acts of cultural genocide, as it is described.

Your Honours, I am not sure that I can assist the Court to any greater extent. We say the underlying claims here are misconceived. Justice Merkel dealt with the specific claims, not just the issue of genocide. He dealt with the fact that issues arising under the World Heritage Convention were non-judiciable. He dealt with the allegation of fiduciary duty and rejected the possibility that a claim based on fiduciary could arise from the facts as pleaded. And he also rejected the argument that there was some cause of action based on a duty of care on the facts as alleged.

So, in which ever way the claim was formulated under the various headings, he went on and carefully rejected those issues and the other members of the court agreed with him in that regard. He also rejected arguments based on legitimate expectation; and, in our written submissions, we dealt with the various grounds that were alleged and the response that was made by the court to them.

So, we say, for these reasons, this is not an appropriate vehicle in which to grant special leave. It was a strike-out application and one in which the Court, after careful consideration of the allegations made, decided that there was no reasonable basis and again, to repeat Justice Merkel's words, concluded the claims were misconceived. So for those reasons, we submit that special leave should not be granted.

GUMMOW J: Yes, thank you, Mr Burmester. Mr Bayliss, you wish to adopt Mr Burmester's arguments?

MR BAYLISS: I do, your Honour.

GUMMOW J: Do you wish to supplement them?

MR BAYLISS: Only to say this: that in the case in which I appear that there is a further insuperable difficulty in my submission to the applicant succeeding and that is that the crimes that were alleged to constitute genocide is, in fact, the passage of legislation. What I say is that the Parliamentary Privileges Act, picking up the Bill of Rights Act, would make that - once again, it is misconceived as an allegation.

KIRBY J: You would have, on Ms Hampel's argument, a clash between a developing notion essentially within our legal system of the common law recognising international law coming into conflict with a statute of the Parliament of Australia and your submission would be that in any such conflict the duty of courts in Australia would be to obey the Parliament's statutes, so long as they were within power.

MR BAYLISS: Yes, your Honour.

HAYNE J: Leave aside section 49 and the constitutional norm thus created.

MR BAYLISS: Yes, your Honour. Could I say that underlying that as an argument, though, is the need to protect the proceedings in Parliament being recognised in 1688 with the Bill of Rights, and I think one only needs to look beyond that.

GUMMOW J: We are worried about the Australian Parliament at the moment. We are worried about section 49 of the Constitution which you correctly suggest imports some ideas and principles.

MR BAYLISS: Yes. I cannot the matter any further then, your Honour.

GUMMOW J: Yes, very well. Yes, Ms Hampel.

MS HAMPEL: I only want to say one matter about the extent of genocide and that is there was reference to cultural genocide in Kruger but, quite clearly, it was accepted there that, as Mr Burmester said, the culture of genocide is not part of the definition of genocide under the Convention, and there does not seem to have been much discussion or debate about that since then.

The only other matter is this: that Ms Coe has now arrived. As I announced when I was announcing my appearances, I do not appear for her, but I am now told that she is here and does wish herself to address the Court.

KIRBY J: She is a party to the proceedings?

MS HAMPEL: She is a party to the proceedings, and here is Ms Coe right beside me. I did not see her come up.

GUMMOW J: Yes, very well. Yes, Ms Coe, what do you want to say to supplement what Ms Hampel has already said on your behalf, very eloquently, if I may say so?

MS COE: I am here, my name is Isobell Coe, I am from the Ngarrandjeri mob. This case has been going now for nearly two years. We have not had any help with any legal representation. We have called for funding and continually we have been denied. Now, I have just found out about this case being on today just last night, so I have had to drive down from Sydney and I have been involved in this case right from the beginning. My husband, Billie Craigie, he died trying to keep this case going.

GUMMOW J: There are solicitors on the record who say they appear for you, Ms Coe, and we have to rely on that presumption.

MS COE: They do not appear for me, your Worship. I appear for myself and my husband, Billy Craigie, and I have been doing so since the ACT Supreme Court - - -

GUMMOW J: Yes, well, it will assist us if you direct yourself to the questions that are before the Court here today.

MS COE: Well, I have just walked into the Court. I am not aware of all of the questions. I need a bit of time.

GUMMOW J: No. You can be aware that Ms Hampel has said a considerable amount in support of these legal propositions.

MS COE: I beg your pardon?

GUMMOW J: Ms Hampel has already said as a courtesy to the Court all that could be said, it seems to me, on the legal issues that arise today, including the legal issues that affect all the applicants.

MS COE: Well, what about our rights as people in this country?

GUMMOW J: She has addressed us on that too.

MS COE: Well, but, she does not represent us on that issue. We have been representing ourselves. Now, I do not know why, now since we are up in the High Court, that that is going to change. Now, you know, it just seems that this is just another form of the genocide that is happening right now against our people, and the legal system is a part of that genocide against our people. Now, if we cannot get any justice here, where do we go? We are desperate. Our people are dying everywhere. Just today there is a funeral. You know, we had to make a choice whether we come here or go to a funeral. Now, it is - there has been at least three this week.

KIRBY J: What is the substantive thing that you want to say to the Court?

MS COE: Well, we want to say that, you know, this war against our people has to end.

KIRBY J: Yes, but - - -

MS COE: It has been an undeclared war for 212 years.

KIRBY J: Well, this is a Court of law. We are obliged to conform to the law and there are some very complicated legal questions which are before the Court and Ms Hampel has addressed the Court on those issues and we have to consider those. Now, is there anything else you want to say relevant to those issues? We cannot fix up every issue in the country. We can only deal with the matters that are before the Court.

MS COE: Well, I appreciate that but someone has to help us stop the genocide in this country against Aboriginal people. Now, if we cannot get justice here in the highest Court of this country, then I think that this Court is just a party to the genocide as well.

GUMMOW J: No, we will not hear that sort of thing.

MS COE: Now, I cannot help it but I have got to let you people know that. The whole world is coming to our country in a few weeks time and if we cannot get any justice here, we are going to take our stories out into the streets.

GUMMOW J: Well, that is your right.

INTERJECTOR: You have been on notice for two f........years.

GUMMOW J: Do you wish to say anything in response, Mr Burmester?

MR BURMESTER: No, your Honour.

INTERJECTOR: It is genocide. You always have been. You have got no - - -

INTERJECTOR: .....no justice from in this.....

INTERJECTOR: Where does your jurisdiction come from?

INTERJECTOR: .....you are all on notice that you are all.....

GUMMOW J: We will take a short adjournment.

INTERJECTOR: You are a racist hypocrite.

INTERJECTOR: Excuse me?

INTERJECTOR: Native title - - -

INTERJECTOR: It is genocide.

INTERJECTOR: It is genocide. See you at the World Court - a court of law. You Goddamn racist.

AT 10.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.31 AM:

GUMMOW J: The applicants seek special leave to appeal from the Full Court of the Federal Court of Australia. That court dismissed an appeal in the matter of Nulyarimma v Thompson from a judgment of a single judge of the Supreme Court of the Australian Capital Territory, Justice Crispin, dismissing an application for mandamus. The applicants have sought mandamus to the registrar of the Magistrates Court of the Australian Capital Territory requiring the issue of process, charging the respondents with genocide "in connection with the formation of the Commonwealth Government's native title 10-point plan and presentation in support of a Bill that became the Native Title Amendment Act 1998, and their failure to introduce and enact genocide legislation".

We express no view on the correctness of the opinion of the majority of the Full Court of the Federal Court that the crime of genocide does not form part of the common law of Australia. Even if it does, it has not been shown that the Full Court erred in deciding that it is not arguable that conduct alleged to constitute genocide falls within the definition of "genocide" in international law. Counsel for the applicants could not point to any decision of any international court or tribunal or municipal court which suggested that it did. Nor could she point to any scholarly writing. Rather, the history of the preparation of the Convention lends no support for the proposition that the Convention extends to the matters complained of here.

In addition to these considerations, there would appear to be considerable difficulties presented to the applicants by the doctrines of parliamentary privilege, found in section 49 of the Constitution and in the Parliamentary Privileges Act of the Commonwealth. These doctrines render immune from inquiry in the courts proceedings in the Parliament. Accordingly, an appeal to this Court, if special leave were to be granted, would fail. Special leave, therefore, should be refused in the matter of Nulyarimma v Thompson.

In the second matter of Buzzacott v Hill, again we express no view about whether or how genocide finds reflection in Australian law. However, even assuming that it does, the decision of the Full Court of the Federal Court that the allegations as framed in the application to the Federal Court reveal no arguable case is not attended by doubt. Special leave in Buzzacott v Hill should be refused. In neither matter is reason shown to depart from the ordinary rule that costs follow the event. Accordingly, in each matter the order is: special leave is refused with costs.

AT 10.34 AM THE MATTER WAS CONCLUDED