Isabel Coe on behalf of the Wiradjuru Tribe v. The Commonwealth of Australia and State of New South Wales

Court	High Court of Australia, Australia
Case number	S. 93/017
Decision title	Decision
Decision date	17 August 1993
Parties	Isabel Coe Commonwealth of Australia State of New South Wales
Categories	Crimes against humanity, Genocide
Keywords	crimes against humanity, genocide, jurisdiction, Murder
Links	Decision

Summary

The present case concerns a claim presented by Isabelle Coe on behalf of the Wiradjuri Kooris. The Wiradjuri people are an Aboriginal tribe who are alleged to have continously lived on and occupied the land now known as central New South Wales, in whole or in part, according to their laws, customs, traditions and practices since at least the early 18th Century. In part, the claim alleges that the Commonwealth of Australia and subsequently the State of New South Wales acquired the land illegally through acts of unprovoked and unjustified aggression including murder, acts of genocide and other crimes against humanity.

The High Court of Australia struck out the plaintiff’s claim on the ground (amongst others) that the High Court of Australia cannot exercise jurisdiction over acts of genocide (a) absent domestic legislation implementing the 1948 Genocide Convention and (b) where the defendant was not a party to the alleged acts.

Procedural history

The plaintiff, Isabelle Coe on behalf of the Wiradjuri people, sued the Commonwealth of Australia as the successor in title to the Colony of New South Wales and sued the State of New South Wales as the purported owner and occupier of lands properly belonging to the Wiradjuri nation who have lived and occupied that land for centuries.

Legally relevant facts

The Wiradjuri Kooris, an Aboriginal tribe, have continously lived on and occupied land now known as central New South Wales, in whole or in part, according to their laws, customs, traditions and practices (p. 2). The land is currently under the ownership of various individuals, including the State of New South Wales as well as private citizens (p. 2).

The plaintiff alleges that the State of New South Wales acquired the land through acts of unprovoked and unjustified aggression including murder, acts of genocide and other crimes against humanity. The Commonwealth of Australia and the State of New South Wales have accordingly wrongfully benefited through their unlawful seizure of the land (p. 4).

Core legal questions

Is the Court entitled to exercise jurisdiction over the charge of genocide alleged by the plaintiff?

Specific legal rules and provisions

Convention on the Prevention and Punishment of the Crime of Genocide.

Court's holding and analysis

Australia is a party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide but this Convention does not give rise to rights under Australian domestic law unless it has been implemented through enacting domestic legislation. This not being the case, the Genocide Convention does not provide a basis for exercising jurisdiction over the plaintiff’s claim of genocide (p. 10).

Even if the Court were to accept the plaintiff’s arguments that Australian common law recognises international law as part of the common law and can therefore exercise jurisdiction over a claim alleging a violation of customary international law, the State of New South Wales was not a party to many of the alleged acts which occurred in the late 18^th and early 19^th centuries (p. 10).

The Court struck out the claim of genocide (p. 10) and found the remainder of the plaintiff’s claims deficient as well (p. 17).