Sumner v. United Kingdom of Great Britain and Others

Court	Supreme Court of South Australia, Australia
Case number	SCGRG-99-1257
Decision title	Judgment No. S456
Decision date	27 October 1999
Parties	Darrell Sumner United Kingdom of Great Britain State of South Australia Alexandrina Council Wendy Chapman Tom Chapman John Bannon Dean Brown Michael Armitage Diana Laidlaw Rod Lucas Dorothy Kotz Trevor Griffin John Olsen Built Environs Pty. Ltd. David O’Sullivan Coffey Geosciences Pty. Ltd. Underdale Drillers Pty. Ltd. Steve Palyga Chris Kenny Commonwealth of Australia
Other names	Sumner Trial
Categories	Genocide
Keywords	genocide, domestic law, universal jurisdiction
Links	Judgment
Other countries involved	Great Britain (UK)

Summary

We often associate genocide with the act of killing members of a specific group, of which there have been many devastating examples throughout history. However, according to the Genocide Convention, other acts can also be regarded as genocide, if they are committed with the intent to destroy, in whole or in part, specific groups. In this case, the plaintiff held that building a bridge to Hindmarsh in South Australia would impede on the culture and way-of-life of the Ngarrindjeri in such a dramatic way that it would lead to the destruction of this group. However, at that point, genocide was not a crime under Australian national law. The plaintiff therefore invoked legislation from the UK, arguing that application of this legislation was possible because of the fact that the UK preceded the current Commonwealth of Australia in governing the Australian continent and its adjacent islands. The judge did not accept this argument and reiterated that even when international law prohibits genocide, someone can only be found guilty of genocide if national legislation explicitly prohibits genocide. The claim was denied.

In 2002, with the adoption of the International Criminal Court Act 2002, genocide became a crime under Australian law.

Procedural history

By application dated 25 October 1999, an order was sought by Sumner that the proposed builders of the bridge (Coffey Geosciences Pty, Ltd. and Underdale Drillers Pty. Ltd.) "whether by themselves or by their agents or employees (to) be restrained until Monday 1 November 1999 or further order, from taking any further steps to disturb the ground or establish a construction site or otherwise commence construction at the proposed location at Goolwa of the proposed bridge" (para. 2). This interlocutory appeal was denied on 27 October 1999. The plaintiff appealed the decision, and the Full Court unanimously dismissed the appeal on 2 November 1999. An application by the defendants to strike out the whole action was granted on 13 April 2000.

Related developments

In July 2000, a judge ruled that Sumner should pay defendants’ costs in his failed attempt to stop construction.

Legally relevant facts

In 1995, Ngarrindjeri women from South Australia lodged a claim under the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act (1984) to prevent a bridge from being built between the mainland and Hindmarsh Island. The women claimed that building the bridge would cause a ‘desecration’ of the site, which would impede on their reproductive capacity. The Minister of Aboriginal Affairs subsequently placed a 25-year ban on the bridge’s construction. However, a Royal Commission considered these beliefs to be a ‘hoax’, and with a new coalition coming to power in 1996, the Hindmarsh Island Bridge Act allowed the construction of the bridge to proceed. The High Court approved this legislation, considering that Parliament had the right to make laws which were potentially unbeneficial for certain groups. Thus, the construction could proceed. Aboriginal activist Darrell Sumner applied for an injunction to restrain the building of the bridge, which was imminent at that time.

Core legal questions

The Single Judge of South Australia’s Supreme Court had to assess the plaintiff’s injunction application, which sought to restrain the building of the Hindmarsh bridge. The plaintiff expressed concerns as to the “desecration to the site and the culture of the Ngarrindjeri people” (para. 3). According to him, constructing the bridge would amount to an act of genocide against the Ngarrindjeri. He considered the construction contracts illegal and the duty of care towards the Ngarrindjeri breached.

The Court had to determine whether the conditions to sustain the appeal had been met (para. 25). Most importantly, the Court had to assess whether it could apply the Genocide Act (UK) of 1969, despite this act containing a prohibition of extraterritorial application (para. 26). The plaintiff relied on the Genocide Act (UK) of 1969, arguing that, since there was a lack of equivalent Australian or South Australian legislation, the legislation of the UK, which was the first to invade the Ngarrindejeri land, should be applied (para. 27).

Court's holding and analysis

The judge was not persuaded by the argument that he could apply the UK Genocide Act. Regarding the “current state of law on the topic of genocide in Australia”, the Court referred to Nulyarimma v. Thompson (para. 32). The Court adopted the reasoning of that judgment, which established that an act can only be regarded to be genocide if national legislation itself prohibits genocide or permits Courts to apply international law of genocide (para. 31). Since the national legislator has not done this, a claim based on the accusation of genocide cannot be sustained. The Court also referred to judge Merkel’s dissenting opinion in Nulyarimma v. Thompson, which it considered applicable to Sumner’s claim. Merkel argued that it must be kept in mind that deep offence or substantial harm to particular groups is not genocide. He emphasised that genocide required “special intent” (para. 32). The dissenting judge also considered that although a genuine belief existed among Aboriginals that they had been subjected to genocide in the past, this belief should not be translated into allegations of genocide in modern times. The application was denied.

Further analysis

An analysis of Australian case law regarding the question of the commission of genocidal acts against Aborigines is provided by Cassidy. Several cases, including this one, in which the Court decided that genocide was not a crime under Australian law, led to several articles which analyse the status of genocide in Australian law.

J. Cassidy, ‘Unhelpful and Inappropriate?: The Question of Genocide and the Stolen Generations’, Australia Indigenous Law Review, 2009, vol. 13, pp. 114-139.

A. D. Mitchell, ‘Genocide, Human Rights Implementation and the Relationship and between International and Domestic Law: Nulyarimma v Thompson’, Melbourne University Law Review, 2000, vol. 24, pp. 15-49.

B. Saul, ‘The International Crime of Genocide in Australian Law’, Sydney Law Review, 2000, vol. 22, pp. 528-584.