Discuss about the Kruger v Commonwealth for Australian Democracy.
The case of Kruger v Commonwealth is also referred to as the stolen generation case in this case a challenge regarding the validity of legislation applicable in the north territory during the year 1918 to 1957 was rejected by the High Court which authorised purportedly the removal of aboriginal children from their families. The case took place in the high court of Australia and was presided over by Brennan CJ, Toohey, Dawson, Gaudron, Gummow and McHuge JJ. The challenge to the validity of 1980 ordnance was rejected by the majority of judges it was also provided that no implied right in relation to legal equality exist. It was found by the judges in this case that 1918 ordinance had a beneficial intention with no purpose of restricting religious practice all promoting genocide. It was also unanimously held by the High Court that no separate action with respect to the breach of any constitutional right existed.
For at least 40000 years the indigenous Australians resided in the Northern territory. When the territory came under the supervision of South Australia in the year 1863 the northern territory Aboriginals Act 1910 was passed by the government. Through the provisions of this act chief Protector of aboriginals had been appointed as the legal guardian of all children whose parents were aboriginals. The chief protector in addition was provided with the authority to send such children to aboriginal institution or a reserve. The legislation meant that children belonging to aboriginal parents would be removed from the custody only by an administrative order as compared to those children who belong to non aboriginal parents and could only be removed by an order of the court. Even after the control of the northern Territory has been transferred to the Federal government from South Australia the policy of removing indigenous children from the custody of their family continued. The powers of the Aboriginal Ordinance 1918 had been extended by bringing the aboriginal females under the chief protector’s exclusive control. The churches operated most of the aboriginal institutions. From the year 1964 the circumstances in which the indigenous children could be removed from the custody of their parents became same which were applicable to non indigenous children however the condition of life which the indigenous people were subjected to place them at a greater risk of their children being removed from the custody because of destitution or neglect. As reported by 91% of the children which had been placed in Foster care were identified as indigenous. The bringing them home report was published by the human rights and equal opportunity commission in 1997 with respect to its enquiry into the separation of indigenous children from their families. Arrange of recommendations was made by the report which included involving charities and churches government apologies, paying the family is monetary compensation and the requirement for the Federal government enact legal provisions in accordance with genocide convention.
In this case compensation was demanded by the plaintiff in relation to deprivation of Liberty and wrongful imprisonment. A claim made by seven plaintiffs namely was related to compensation for being removed from their families when they were child during the year 1925 and 1944. The claim made by the eight plaintiff was made as she was a mother whose daughter has been removed from her custody. The primary barrier which prevented the members of the stolen generation to make a claim was that removal which was done by the government has been authorised by the Aboriginal Ordinance 1918.
There were primarily five arguments which one made by the plaintiff stating that the aboriginals Ordinance 1918 was not valid act of the parliament. The plaintiff pleaded that the ordinance in French the doctrine of separation of power, the common law doctrine is provided legal equality was offended by the ordinance, the freedom of movement and Association was restricted by the ordinance, as the ordinance was related to the removal of children at constituted genocide and the removal of children from the custody of their parents resulted in restriction towards the exercise of free religion.
In this case with respect to the argument related to separation of powers two propositions were included in the argument of the plaintiff. The two propositions were that detention and removal of people was exclusively a judicial power and the judicial power should not be exercised by a chapter 3 court. In the case of New South Wales v Commonwealth which is also known as the Wheat case it was provided by the court that Federal judicial power is not allowed to be exercised by a court. It was provided by the judges that the constitution is structured is such a way which requires strict insulation with respect to judicial powers so that only a court which has been established under chapter III of the Constitution has been provided the power to exercise judicial powers related to Commonwealth. In the Wheat case the reasoning was for the taken from the case of water side workers Federation of Australia v J W Alexander Limited. In this case it was held by the majority of the judges that the power to bring conventions for offences in force awards and imposition of punishment and penalties were matters which come exclusively coming under the scope of judicial power. The doctrine of the boilermakers case was restored by the High Court as it held at only chapter III courts are eligible to exercise judicial powers and the only power which chapter III could exercise were judicial powers. It had been held previously in the case of Attorney-General (Cth) v The Queen that terrorism does not come under the part of that Federal judicial authority.
The power in relation to the second proposition arise from the case of Chu Kheng Lim v Minister for Immigration where it was held by the judges that detention of citizen which is involuntary in nature through the custody of the state is positive or panel in nature and under the given system of government is available only as an incident of particular judicial powers of punishing and adjudging criminal guilt. In the case with respect to this papers the argument related to the separation of power was rejected by all the judges however the opinion related to the rejection deferred among them. It was held by Brennan CJ, Dawson and McHugh JJ that the doctrine of separation of power was not applicable in relation to the authority to make laws for a territory falling under section 122 of the Australian constitution and does the judges did not proceed towards deciding that whether detention fall under the provisions of judicial power or not. It was held by Brennan CJ that as a territories were not a segment all the federal system which involved the distribution of powers between the state and the Commonwealth the doctrine of separation is not applicable. Dawson J and McHuge J together provided that section 122 provided the parliament the authority to enact quotes which were not Federal in nature and did not exceed Federal jurisdiction. It was doubted by Dawson J that the actions in relation to the case was rather than executive were of a judicial character.
It was held by Toohey, Gaudron and Gummow JJ that the taking a way of indigenous children was not the use of judicial power and did not provide whether or not the doctrine of separation of powers is applicable. As provided by Toohey J that it was a very persuasive proposition that the doctrine of separation of powers applied to the territories however the question on that basis was not determined by the judge as judged by standards and values prevailing and those Times the purpose of the ordinance was welfare and thus it was neither the exercise of judicial power nor it was punative. Similarly the decision of Gaudron J was based on the finding that the authority with respect to the authorisation of detention in government custody was not under the provisions of exclusive judicial power. And finally it was held by Gummow J that the moment at which the detention was initiated it was necessary for a non punitive legitimate purpose and therefore does not fall under the provisions of judicial power.
The next question was related to the implied right with respect to legal equality. Remedies for short by the plaintiff which were consistent with the judgement of the dissenting judges in the case of Leeth v Commonwealth. However, in the present case only Toohey J considered that there was a right related to substantial equality. In order to support only procedural equality Gaudron J departed from her position. It was further provided by the court that even if common law grants Substantive equality, the parliament has the power to override is or else it would make the concurrent powers of the parliament less than the states. The claim related to the freedom of movement was not relied upon by expressed rights like the right to travel interstate for commercial purpose. It was decided by the court in this case as there was no right to vote vested in the people of the territory the right of freedom of movement did not exist. In addition it was provided by Gummow J that there was no such right and even if it existed the ordinance did not breach it. In relation to genocide it was held by the court that the ordinance did not authorise genocide as the parliament did not have the authority to authorise it. Section 116 of the constitution protects the freedom of religion in Australia. The challenge of the plaintiff in relation to the freedom of religion had been rejected by the court by stating that the laws which had been challenged did not have the intention to restrict any religious practices.
The validity of the ordinance had been upheld by the high court in this case however it was provided by the court that only when the removal was in the best interest of the child can it be initiated. The judges provided that the case had been judged by the standard and values which prevailed during the period. The constitution provides a range of restriction on the law making powers of the parliament. One of the rime examples of such restrictions have been provided in section 116 of the constitution through which a parliament cannot make laws to restrict the exercise of a religion. The decision in the case however signified that the parliament can make laws against the constitution with respect to the situation which was prevailing when the law had been made. The case was a total violation of the constitution through the use of legal interpretation and techniques by the judges in order to support the law making powers of the parliament as all provisions had been interpreted against the plaintiff deliberately. Further the court found a way in this case to deny their own reasoning made in previous cases to limit the rights of the plaintiff.
The case was totally adjudged taking into account political considerations and the law making power of the parliament. The judges denoted through their judgement that the decision was based on social implications revealing at the time the law had been made. However the bias stance of the judges in this case towards the plaintiff denotes that the only intention of the court was to ensure parliamentary supremacy in law making. The attitude of the courts towards upholding a parliamentary enactment has been seen in various cases where although prima faice it appeared that the provisions of the constitution had been breached, the interpretation off those provisions was done in such a way as to intentionally accept the validity of the new legislations. The decision can be seen as a prominent limitation of the doctrine of separation of powers where the judiciary was not able to perform there fiction freely under the influence of the legislature.
"Aboriginals Ordinance No. 9 of 1918 (Cth)". Museum of Australian Democracy.
Attorney-General (Cth) v The Queen  UKPCHCA 1, (1957) 95 CLR 529
Australia – a national overview: resource sheet. Human Rights and Equal Opportunity Commission. 2010. Retrieved 29 May 2011
Chu Kheng Lim v Minister for Immigration  HCA 64, (1992) 176 CLR 1, High Court (Australia).
Genocide Convention Act 1949 (Cth).
Kune, R. "The Stolen Generations in Court: Explaining the Lack of Widespread Successful Litigation by Members of the Stolen Generations". (2011) 30 University of Tasmania Law Review 32.
Leeth v Commonwealth  HCA 29, (1992) 174 CLR 455, High Court (Australia).
New South Wales v Commonwealth  HCA 17, (1915) 20 CLR 54.
R v Kirby; Ex parte Boilermakers' Society of Australia  HCA 10, (1956) 94 CLR 254.
The Northern Territory Aboriginals Act 1910 (SA).
Waterside Workers' Federation of Australia v J W Alexander Ltd  HCA 56, (1918) 25 CLR 434