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. S462
Decision date	2 November 1999
Parties	Darrell Sumner United Kingdom of Great Britain State of South Australia 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. Steve Palyga Commonwealth of Australia
Other names	Sumner Appeal
Categories	Genocide
Keywords	genocide, domestic law, universal jurisdiction
Links	Judgment
Other countries involved	Great Britain (UK)

Summary

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. Sumner was unsuccessful in appealing to this judgment. The full chamber of South Australia’s Supreme Court reiterated that the interlocutory appeal to prevent the start of constructing the bridge should be denied, as there was no serious case to be tried. It did so, most importantly, because the ‘underpinning’ of the case, the allegation that building the bridge was in essence a genocidal act, was not substantiated with referral to domestic 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 Full Court of the South Australian Supreme Court had to assess whether the single judge in first instance had erred in rejecting Sumner’s application. The appellant complained about several aspects of the judge’s ruling (para. 32), most significantly that the plaintiff had not established an arguable case to be tried. The appellant denied this, arguing most importantly, illegitimacy of contract and a breach of the duty of care. According to the appellant, the construction contract was void for legality since they were contrary to public policy and their implementation involved illegality regarding several international legal instruments, e.g. the Genocide Convention, Covenant on Civil and Political Rights and the Draft Declaration of Indigenous Peoples (paras. 41-47). Also, it was argued that the defendants had been negligent in their duty of care towards the Ngarrindjeri (para. 47). Sumner relied on several aspects of legislation, including the Racial Discrimination Act, Crimes (Torture) Act, the Aboriginal Heritage Act and the Planning Act. Also, appellant states that the standard of care in common law includes Genocide Convention, Covenant on Civil and Political Rights and the Draft Declaration of Indigenous Peoples.

Specific legal rules and provisions

Court's holding and analysis

The Full Court agreed with the single judge that there was no serious issue to be tried. In order to substantiate this, it brought forward several arguments. Regarding Sumner’s claim that the contract was void for legality, it held that the appellant was not a party to the relevant contracts and that he had not identified how the contracts gave rise to any illegality (paras. 42-43). Regarding the duty of care, the appellant had not identified how the duty of care was said to arise, or what the particular breaches were (paras. 46-47).

The full court agreed with the single judge that this case was essentially underpinned by the claim that all of the defendants were guilty of genocide (para. 48). It reiterated that Genocide is not an offence under Australian law, and regarded that reliance on the Genocide Act (UK) 1969 was “doomed to failure”, as this act had no application in Australia.

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.