Alec Kruger and others v. The Commonwealth of Australia

Court	High Court of Australia, Australia
Case number	M21 of 1995
Decision title	Order
Decision date	31 July 1997
Parties	Alec Kruger Hilda Muir Connie Cole Peter Hansen Kim Hill Rosie Napangardi McClary George Ernest Bray Janet Zita Wallace Marjorie Foster The Commonwealth of Australia
Categories	Genocide
Keywords	genocide
Links	Order of the High Court of Australia

Summary

Eight inhabitants of the Northern Territory (Australia) who had been taken from their families between 1925 and 1944 under the Aboriginals Ordinance of 1918 (which allowed the forced removal of children of mixed Aboriginal descent), and a mother, Rose Napangardi McClary, whose child had been taken from her under the same law, sought a declaration that the Ordinance was unconstitutional. They instituted legal proceedings in 1995. In July 1997, the High Court rejected all their arguments and held that the Ordinance was not unconstitutional.

Procedural history

The case arose from the ‘Going Home Conference’ organised in Darwin in 1994, which brought together more than 500 affected Aborigines who had been taken from their families between 1910 and 1970. The chief plaintiffs, Kruger and Bray, both attended the conference. Kruger maintained that he was stolen from his family in the late 1920s, while Bray maintained that he was taken away from his parents in the 1930s.

In 1995, Kruger, Bray and seven other affected Aborigines with similar experiences commenced legal proceedings. They claimed, inter alia, that the Northern Territory’s Aboriginals Ordinance of 1918, which allowed Chief Protectors and Directors of Native Affairs control over the movement and restraint of Aborigines throughout the territory, was unconstitutional and claimed damages for financial, spiritual and personal harm. Plaintiffs argued that the Ordinance was contrary to an implied constitutional right to freedom from any law that authorised the crime of genocide.

Related developments

On 13 February 2008, the Prime Minister of Australia, Kevin Rudd, apologised to the “Stolen Generations” for the ‘profound grief, suffering and loss’ inflicted on them by decades of abuse and mistreatment.

Legally relevant facts

In 1911, the Australian Government gained control of the Northern Territory from South Australia. Later in 1911, an anthropologist, Baldwin Spencer, was hired by the Government to propose measures for establishing control over the Aborigines in the region. Spencer’s proposal stated that children of mixed Aboriginal descent should be removed from the region. He claimed that these children were unable to ‘be of much greater intellectual calibre than those Aboriginal children of full descent’ (p. 41 of the report). This proposal was implemented into the Aboriginals Ordinance of 1918. Section 16(1) of the Ordinance provided (in part) as follows:

‘The Chief Protector may cause any aboriginal or half-caste to be kept within the boundaries of any reserve or aboriginal institution or to be removed to and kept within the boundaries of any reserve or aboriginal institution, or to be removed from one reserve or aboriginal institution to another reserve or aboriginal institution, and to be kept therein’.

Until the 1970s, mixed-race children, mostly of Aboriginal mothers and European fathers, were taken to orphanages, church missions or foster homes to be raised separately from their families and their culture.

The Welfare Ordinance 1953 repealed the Ordinance and became effective in May 1957. The new Ordinance did not explicitly refer to Aborigines but in fact applied to them. It established a specified criterion for awarding a ward status (status determining removal).

In April 1997, the national “Bringing them Home” report was published, stating that between 1885 and 1967 between 70,000 and 100,000 Aboriginal children had been taken away from their parents.

Core legal questions

Was the Aboriginal Ordinance of 1918 contrary to an implied constitutional right to freedom from any law that authorised the crime of genocide?

Specific legal rules and provisions

Commonwealth of Australia Constitution Act 1900:

Section 25 - Provision as to races disqualified from voting
Section 88 - Uniform duties of customs
Section 92 - Trade within the Commonwealth to be free
Section 99 - Commonwealth not to give preference
Section 116 - Commonwealth not to legislate in respect of religion
Section 117 - Rights of residents in States
Section 122 - Government of territories
Section 127 - Aborigines not to be counted in reckoning population

Judiciary Act 1903, Commonwealth of Australia:

Section 18 - Reference to Full Court
Section 40 - Removal by order of the High Court
Section 56(1) - Suits against the Commonwealth
Section 64 - Rights of parties
Section 78A - Intervention by Attorneys‑General
Section 78B - Notice to Attorneys‑General
Section 79 - State or Territory laws to govern where applicable
Section 80 - Common law to govern

Northern Territory Acceptance Act 1910, Commonwealth of Australia:

Section 7(3) - Continuance of laws

Aboriginals Ordinance 1918, Commonwealth of Australia:

Section 4 - Chief Protector
Section 6 - Chief Protector to undertake care and control of aboriginals and half-castes
Section 7 - Chief Protector be legal guardian of children
Section 16 - Aboriginals may be removed to reserves
Section 67 – Regulations

Convention on the Prevention and Punishment of the Crime of Genocide, 1948, UN General Assembly:

Article 2 - Definition of genocide

Court's holding and analysis

The High Court of Australia held that the Ordinance was not ‘contrary to an implied constitutional right to freedom from and/or immunity from any law, purported law or executive act providing for or having a purpose, the effect or the likely effect of the destruction in whole or in part of a racial or ethnic group, or the language and culture of such a group’ (p. 12). Although the Ordinance was specifically directed at one racial group, it was not an example of legislation designed to be punitive towards that racial group. Instead, the Court found that it was an example of beneficial legislation as the intentions of those who enacted the Ordinance was that it would be exercised in the best interests of Aborigines (pp. 37-38). Furthermore, according to the Court, the Ordinance gave permission to remove Aboriginal children from their families but it did not authorise these acts ‘“with intent to destroy, in whole or in part” the plaintiffs’ racial group’ (p. 51). Therefore, the Court ruled ‘that the Ordinance did not authorise acts of genocide as defined in the Genocide Convention […]’(p. 66).

The Court further held that the power to order involuntary detention is not ‘necessarily judicial power, whether or not subject to exceptions, and, thus, s122 is not subject to an implied right of due process, as contended by the plaintiffs’ (p. 70).

The Court also rejected the plaintiffs’ freedom of movement argument for invalidation of the Ordinance. Judge McHugh found that, since at the time the Ordinance was passed the residents of the Northern Territory had no part to play in the constitutionally prescribed system of government or the amendment procedure, there was no implied freedom of movement (pp. 79-80).

The judges had different opinions as regards the argument that the Ordinance violated the plaintiffs’ freedom of religion. Judges Dawson and McHugh declared that section 116 (freedom of religion) did not apply to the Northern Territory (p. 77). The majority held that there was no violation because the law must, on its face, show that its object or purpose is to prohibit the exercise of religion and the Ordinance did not have that explicit purpose.

Therefore, the Court dismissed the plaintiffs’ case.

Further analysis

B. Cummings, J. Blokland, and R. La Forgia, ‘Lessons From the Stolen Generations Litigation’, Adelaide Law Review, 1997, Vol. 19, pp. 25-44.

S. Joseph, ‘Kruger v Commonwealth: Constitutional Rights and the Stolen Generations’, Monash University Law Review, 1998, Vol. 24(2), pp. 486-498.

T. Buti, ‘Removal of Indigenous Children from their Families: The National Injury and What Came before - The Push for Reparation’, Australian Indigenous Law Reporter, April 1998, Vol. 3(1).

M. D. Schaefer, ‘The Stolen Generations - In the Aftermath of Kruger and Bray’, University of New South Wales Law Journal, May 1998, Vol. 21(1), pp. 247-252.

M. Storey, ‘Kruger v The Commonwealth: Does Genocide Require Malice?’, University of New South Wales Law Journal, May 1998, Vol. 21(1), 224-231.

C. Cunneen and J. Grix, ‘The Limitations of Litigation in Stolen Generations Cases’, Institute of Criminology, University of Sydney Law School, 2004, pp. 6-7.

Instruments cited

Commonwealth of Australia Constitution Act 1900
Judiciary Act 1903, Commonwealth of Australia
Northern Territory Acceptance Act 1910, Commonwealth of Australia
Aboriginals Ordinance 1918, Commonwealth of Australia
Convention on the Prevention and Punishment of the Crime of Genocide, 1948, UN General Assembly

Additional materials

‘Kruger v Commonwealth’, Answers.

National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, ‘Bringing them home’, Australian Human Rights Commission, April 1997.

M. Decoust, ‘Australia’s forgotten dreamtime’, Le Monde diplomatique, October 2000.