Kruger v Commonwealth facts for kids

Quick facts for kids Kruger v Commonwealth
Court	High Court of Australia
Full case name	Alec Kruger & Ors v The Commonwealth of Australia; George Ernest Bray & Ors v The Commonwealth of Australia
Decided	31 July 1997
Citation(s)	.
Case opinions
(4:2) The 1918 Ordinance which purportedly authorised the removal of Aboriginal children, was not invalid as breaching the claimed constitutional rights (per Brennan CJ, Dawson, McHugh & Gummow JJ; Gaudron and Toohey JJ dissenting) (6:0)There is no separate action for a breach of any constitutional right.
Court membership
Judge(s) sitting	Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ

In 1997, a very important court case called Kruger v Commonwealth took place. It is also known as the Stolen Generation Case. The High Court of Australia looked at a law from 1918 that allowed Aboriginal children to be taken from their families in the Northern Territory. The court decided that this law was valid.

Most of the judges believed the 1918 law was made to help Aboriginal people. They did not think it was created to commit genocide (destroy a group of people) or to stop people from practicing their religion. All the judges agreed that there was no special way to sue the government just for breaking a constitutional right.

What Happened Before the Case

Indigenous Australians have lived in the Northern Territory for a very long time, over 40,000 years. In 1863, the area came under the control of South Australia. In 1910, a law called the Northern Territory Aboriginals Act 1910 was passed. This law said it was for the "Protection and Control" of Aboriginal people.

Under this law, a person called the "Chief Protector of Aboriginals" became the legal guardian of every child with an Aboriginal mother. This Chief Protector could send these children to special reserves or institutions. This meant Indigenous children could be removed from their families by an administrative order. At the same time, non-Indigenous children could only be removed by a court order.

This policy of removing Indigenous children continued when the federal government took control of the Northern Territory. The Aboriginals Ordinance 1918 made these powers even stronger. It put Aboriginal women under the Chief Protector's complete control. Many of these Aboriginal institutions were run by churches.

After 1964, Indigenous children could only be removed under the same rules as non-Indigenous children. However, the difficult living conditions for Indigenous people often meant their children were still at higher risk of being removed due to neglect. By 1971, almost all (97%) of the children in foster care in the Territory were Indigenous.

In 1997, the Australian Human Rights Commission released a report called Bringing Them Home. This report was about its investigation into the separation of Aboriginal and Torres Strait Islander children from their families. The report suggested several things. These included apologies from governments and churches, financial payments, and new laws to put the Genocide Convention into effect in Australia.

Arguments in the High Court

The people who brought the case (the plaintiffs) wanted money from the government. They said they had been wrongly held and had their freedom taken away. Seven of the plaintiffs, including Alec Kruger and Hilda Muir, were removed from their families as children between 1925 and 1944. The eighth plaintiff, Rosie Napangardi McClary, was a mother whose daughter had been removed.

One big problem for the Stolen Generations to get compensation was that the 1918 law had allowed their removal. The plaintiffs wanted the High Court to say that this law was illegal.

They argued that the 1918 law was not valid because it:

• Broke the rule about how government powers should be separated.
• Was unfair and went against the idea of legal equality.
• Stopped them from moving freely and associating with others.
• The removal of children was a form of genocide.
• The removal stopped children from freely practicing their religion.

The Court's Decision

Separation of Powers

The plaintiffs argued that only courts could make decisions about holding people against their will. They said the 1918 law, which allowed an administrative officer (the Chief Protector) to do this, was breaking the rule of separation of powers. This rule says that different parts of the government (like law-making, law-enforcing, and judging) should be separate.

All the judges rejected this argument. Their reasons were slightly different. Some judges, like Chief Justice Brennan, said that the separation of powers rule did not apply to laws made for the Northern Territory. Other judges, like Toohey J, said that removing Indigenous children was not a judicial power. They believed the law's purpose was welfare, not punishment.

Implied Right of Legal Equality

The plaintiffs also argued that there should be a basic right to legal equality for everyone. This means that laws should treat all people the same.

However, most judges did not agree that such a right existed in the Constitution. They pointed out that the Constitution sometimes allows for different treatment in certain situations. They also said that if there was a common law right to equality, the Parliament could still make laws that override it.

Freedom of Movement and Association

The plaintiffs argued that the 1918 law stopped them from moving freely and associating with their families and communities. They said this was an implied right, meaning it wasn't written directly in the Constitution but was suggested by other rights, like the freedom of political communication.

Some judges agreed that freedom of movement and association were important. However, they had different views on whether the 1918 law broke these rights. Some judges said that because people in the Northern Territory could not vote at that time, this freedom did not apply to them. Only one judge, Gaudron J, thought some parts of the 1918 law were invalid because they were not truly necessary for a good purpose. These were the sections that allowed the Chief Protector to take children and keep them in institutions.

Freedom from Genocide

The Bringing Them Home report had stated that the removal of Indigenous children was genocide. This is defined in the Genocide Convention, which Australia agreed to in 1949. Genocide includes acts meant to destroy a group, such as "forcibly transferring children of the group to another group."

Most of the High Court judges found that the 1918 law was meant to act in the best interests of Aboriginal people. They said it did not allow for genocide. This meant that if acts of genocide did happen, they were beyond what the 1918 law permitted. One judge, Gaudron J, went further. She believed that the Australian Parliament did not even have the power to make laws that would allow genocide.

Freedom of Religion

Section 116 of the Constitution says that the government cannot make laws that stop people from freely practicing their religion.

The plaintiffs argued that the spiritual beliefs and practices of Aboriginal people were a religion. They said the 1918 law stopped Aboriginal children from practicing their religion by separating them from their culture. The Bringing Them Home report had found that children were removed because their Aboriginal identity was seen as a "problem."

The High Court rejected this argument. Most judges said that Section 116 looks at the purpose of a law, not just its effect. They found that the 1918 law did not have the purpose of stopping people from practicing their religion.

What Happened After the Case

The High Court decided that the 1918 law was valid. However, they also said that children could only be removed if it was truly in their "best interests," based on the ideas and standards of that time. This left open the chance that some removals might not have been allowed by the 1918 law.

So far, only one person from the Stolen Generations, Bruce Trevorrow in South Australia, has received compensation through a court case. Some limited compensation programs have been set up in New South Wales and South Australia.

See also

• Australian constitutional law
• Stolen Generations