Sumner v. United Kingdom of Great Britain and Others

Court	Supreme Court of South Australia, Australia
Case number	SCGRG-99-1257 [2000] SASC 91 (13 April 2000)
Decision title	Judgment No. [2000] SASC 91
Decision date	13 April 2000
Parties	Darrell Sumner United Kingdom of Great Britain Griffin and John Olsen Alexandrina Council Wendy Chapman and Tom Chapman Built Environs Pty. Ltd., David O’Sullivan, Coffey Geosciences Pty. Ltd. and Underdale Drillers Pty. Ltd. Chris Kenny Commonwealth of Australia
Other names	Sumner second 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 had already sought (and failed to find) two interlocutory injunctions to prevent a bridge from being built to Hindmarsh in South Australia. It was held that this construction 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. The judge did not agree that the construction would amount to genocide and reiterated earlier judgments that genocide was not a criminal act under Australian law. Treaties are not a direct source of law in Australia, and neither is customary international law.

In 2002, with 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". 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 plaintiff sought relief, most importantly amounting to declaring the constructions contracts to be void and prohibiting the construction of the bridge, on a number of bases including tort, contract and statute, all of which were underpinned by a claim that the defendants were guilty of acts of genocide. The Court had to assess, most importantly, the validity of this underpinning. Related to this question, it had to assess the alleged illegality of the construction contract, the alleged negligence by building the bridge, the question whether there was a breach of the Ngarrindjeri’s legitimate expectation to be protected against Genocide, and the defendants’ application to strike out the whole of Sumner’s legal action against them.

Court's holding and analysis

The judge took international law into consideration to conclude that “and intention to destroy forms an essential element of the international crime of genocide” (para. 19). According to the judge, it could not be said that building the bridge would have such an impact upon the Ngarrindjeri that it could be qualified as genocide (para. 22). The judge concluded that this finding undermined any cause of action founded upon allegations of genocide. However, “for the sake of completeness” it was reiterated that genocide was not a criminal act under Australian law, as neither treaties nor customary international law are a direct source of Australian law (paras. 25 and 30). Subsequently, the judge concluded that the plaintiff’s locus standi was undermined, as “the public wrong which the plaintiff seeks to avoid is the offence of genocide” which was not cognisable under Australian law (para. 39). Therefore, claims of illegality of the contracts and negligence were denied. Considering that legitimate expectations are exclusively a term used in administrative law, this claim was denied as well (para. 67). Since the claims were essentially based on the accusation of genocide, the judge decided that this defect in the claims could not be remedied. The whole action was therefore struck out (paras. 83-84).

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.