Thorpe v. Kennett

Court	Supreme Court of Victoria, Australia
Case number	4461 1999
Decision title	Judgment
Decision date	15 November 1999
Parties	R.A. Thorpe J.G. Kennett
Categories	Genocide
Keywords	domestic law, genocide, universal jurisdiction
Links	Judgment

Summary

The main reason for proceedings against Jeffrey Kennett, the then Premier of Victoria, appears to have been the Premier’s refusal to recognise the Gunai under Booran as a sovereign people and the Land Titles Validation (Ammended) Act, which was passed under the government of Kennett in 1998. This Act confirmed and validated property titles. According to Robbie Thorne, Aboriginal activist, this Act ‘extinguished all the native title the Victorian Aboriginal people ever had’. Arguing that these conditions would lead to mental harm and that these measures were calculated to destroy the Aboriginals, Thorne requested that Kennett would be charged with genocide.

However, Thorne faced the brick wall that many faced before and after him: the Judge ruled that genocide was not a crime under national law. Specifically, the Judge rejected the argument made by some (including a dissenting judge in a previous case) that in some instances, international law can be incorporated into domestic law. With regard to the merits of the case, the judge ruled that the evidence presented by Thorpe did not in itself demonstrate genocidal intent, which is an essential element of genocide.

Procedural history

Robert Alan Thorpe submitted a request to charge then Premier of the State of Victoria, Jeffrey Kennett. According to Thorpe, Kennett was guilty of committing genocide by causing, with the intent to destroy, serious mental harm to the Gunai under Boorun. Secondly, Thorpe alleged that Kennett had not prevented continuing genocide by refusing to take the following measures: a declaration to end hostilities, a recognition of the Gunai/Kurnai under Boorum and an express adoption of the Genocide Convention. Thirdly, Thorpe claimed that Thorpe attempted, incited and conspired and had been an accomplice in numerous acts, ‘committed with the intent to destroy the original peoples of the land, causing mental harm to the original peoples of the land and deliberately imposing upon the original peoples of the land conditions of life calculated to destroy each people in whole or in part.’ The Chief Magistrate dismissed the proceedings for want of jurisdiction on the basis that the offence of genocide did not form part of domestic law in Australia. The appellant appealed against this decision. After this appeal was rejected, due to the fact that the appellant had failed to make out a prima facie case, Thorne appealed at the Supreme Court.

Related developments

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

Legally relevant facts

Jeffrey Kennett was Victoria’s premier between 1992 and 1999. The Land Titles Validation (Amendment) Act was passed in 1998 and led to some protests. This Act was based on a national framework provided by the Native Title Amendment Act 1998, which delegated the matter of protecting native title from the Commonwealth to the states, streamlined the claims system, provided security of tenure to non-Indigenous holders and elevated the threshold of proving a physical connection to the land. Overall, it was considered to place some restrictions on native claim. This was a reason for Aboriginal activist Robbie Thorpe to request proceedings against the premier. He argued that the Act further diminished the rights of the Gunai and that it led to further occupation of their land. Also, he argued that by failing to adopt the Genocide Convention, recognise the Gunai/Kurnai under Boorum and declare an end of hostilities towards the Aborigines, Kennett had failed to stop and prevent further genocide. Thirdly, Thorpe stated that Kennett had adopted several policies with the intent to destroy the Aborigines (para. 1).

Core legal questions

Whether Thorpe had made out a prima facie case for the relief sought. (para. 4);
Whether or not the offence of genocide is recognised as part of domestic law (para. 10);
Whether Thorpe would be able to make an arguable case, based on the materials, that Kennett was guilty of genocide.

Specific legal rules and provisions

Convention on the Prevention and Punishment of the Crime of Genocide.
Land Titles Validation (Amendment) Act 1998 (Vic.).
Crimes Act 1958 (Vic.).
Magistrate’s Court Act 1989 (Vic.).

Court's holding and analysis

The Judge referred to the Nylyarimma and Buzzacott case, as well as to the Sumner case to assess whether genocide is an offence under Australian law (paras. 13-33 and 34-4). In Sumner, the appellants claimed that the criminal offence of genocide exists under Australian law, because the prohibition of genocide is a norm of customary international law and, in their opinion, Australian municipal law incorporates these norms (para. 13). In Nylyarimma and Buzzacott, the majority rejected this view, stating that one cannot rely on international law before an Australian Court when domestic legislation in this regard is lacking. One judge dissented, stating that customary international law is part of Australian law.

In the present case, the Judge relied on the majority ruling to dismiss the appeal made by Thorpe. Regarding the dissenting judge’s observations, he stated that he had ‘strong reservations upon accepting that by the signing of an international treaty or convention the provisions of such document are immediately incorporated into the law of the jurisdiction’ (para. 43).

With regard to the merits of the case, the judge ruled that the evidence presented by Thorpe did not in itself demonstrate genocidal intent (para. 45).