Kruger v Commonwealth

Judgement of the High Court of Australia

In Kruger v Commonwealth, decided in 1997, also known as the Stolen Generation Case, the High Court of Australia rejected a challenge to the validity of legislation applying in the Northern Territory between 1918 and 1957 which authorised the removal of Aboriginal children from their families. The majority of the bench found that the Aboriginals Ordinance 1918 was beneficial in intent and had neither the purpose of genocide nor that of restricting the practice of religion. The High Court unanimously held there was no separate action for a breach of any constitutional right.

Indigenous Australians have lived in the Northern Territory for at least 40,000 years. In 1863 the Territory came under the control of South Australia which in 1910 passed the Northern Territory Aboriginals Act 1910. The Act claimed to be for the "Protection and Control" of the Aboriginal people of the Territory. Under the Act, the "Chief Protector of Aboriginals" was appointed as the legal guardian of every child whose mother was Aboriginal, This policy of removing Indigenous children from their family continued when control of the Northern Territory was transferred from South Australia to the federal government. The Aboriginals Ordinance 1918 extended these powers, putting Aboriginal females under the total control of the Chief Protector. Most of the Aboriginal institutions were operated by churches. The report made a range of recommendations, including apologies from governments, churches and charities involved, the payment of monetary compensation and that the federal government legislate to implement the Genocide Convention with full domestic effect.

The plaintiffs argument involved two propositions, that judicial power could only be exercised by a Chapter III Court, and that the removal and detention of people was exclusively a judicial power. That the federal judicial power could only be exercised by a court followed the 1915 decision of the High Court in New South Wales v Commonwealth (The Wheat Case), that the structure of the Constitution required the strict insulation of judicial power such that only a court established under Chapter III of the constitution can exercise the judicial power of the Commonwealth. The reasoning in the Wheat Case was taken further in Waterside Workers' Federation of Australia v J W Alexander Ltd where a majority of judges, Griffith CJ, Barton, Isaacs, Powers and Rich JJ, held that the power to enforce awards, being convictions for offences and the imposition of penalties and punishments, were matters appertaining exclusively to judicial power. The High Court reinforced the doctrine in the Boilermakers' Case, holding that only a Chapter III Court could exercise judicial powers and that a Chapter III Court was only permitted to exercise judicial power. It had previously been held however that the territories were not a part of that federal judicial power. Authority for the second proposition came from Chu Kheng Lim v Minister for Immigration, where Brennan CJ, Deane and Dawson JJ said "The involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. However, in this case only Toohey J held there was a right of substantive equality; Gaudron J departed from her position in Leeth to support procedural equality only. Gaudron J was accompanied by Dawson, McHugh and Gummow JJ. Brennan CJ did not consider this issue, as he found that such a right could not apply to the territories, as they were creations of parliament. Per Dawson J, the due process afforded by the existence of Chapter III courts is of a "procedural rather than substantive nature". As for the existence of discrimination in the Constitution, he disagreed with the notion that because there were provisions protecting the States from discriminatory Commonwealth laws, there should be applicable laws for individuals, on the basis that these protections were founded on different considerations. Furthermore, where the Constitution has prescribed equality, it has done so explicitly, such as the section 92 prohibition against discrimination of a protectionist kind. However, he recognised that Deane and Toohey JJ based their doctrine of equality on "considerations of a more fundamental kind". Dawson J also attacked the notion that legal equality might arise from the Constitution as a free agreement of the people; he noted that there was a degree of equality lacking, with regards to women and Aboriginals. In relation to the common law, even if there were a common law right of substantive equality, the Commonwealth parliament has the ability to usurp the common law otherwise its concurrent power will be less than that of the States. Finally, even with the existence of Chapter III courts, it is not possible to declare a law invalid because it is substantively unequal.

The claim for freedom of movement was not based on the express right such as the freedom of interstate commercial travel, but rather an implied right flowing from the implied freedom of political communication, a freedom that may be subject to limitations that are reasonably appropriate and adapted to serve a legitimate end. Toohey, Gaudron, and McHugh JJ held that association and movement were inherent in political communication such that there was an implied freedom of movement and association. Toohey J held that considering the standards and perceptions prevailing at the time of the 1918 Ordinance, it was not necessarily invalid. but has not been implemented with legislation in Australia. A majority of the High Court, Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ, found that the 1918 Ordinance required action to be taken in the best interests of the Aboriginal people and thus did not authorise genocide. Thus is, if genocidal acts occurred, they were beyond the power given by the 1918 Ordinance.</blockquote>

The plaintiffs did not argue that making Aboriginal children attend a church run institution was the imposition of religious observance, but that the system of spiritual beliefs and practices of the Aboriginal people was a religion and the laws prohibited Aboriginal children from the free exercise of that religion by separating them from indigenous culture. The Bringing Them Home report had found that Aboriginal children were removed because their Aboriginality was 'a problem' and to prevent the children from acquiring Aboriginal 'habits', culture and traditions. has obtained compensation as a result of litigation. Limited compensation schemes have been implemented in New South Wales and South Australia.