Constitutional Law Table docx.

3016LAW Constitutional Law
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Table of Contents
Introduction................................................................................................................................3
Characterization.........................................................................................................................3
Summarization........................................................................................................................3
Leading Decisions..................................................................................................................6
Interpretation..............................................................................................................................8
Constitutional Interpretation...................................................................................................8
Constitutional Doctrine..........................................................................................................9
Preferable Doctrine...............................................................................................................10
Conclusion................................................................................................................................12
Bibliography.............................................................................................................................13
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Introduction
The legal case of Alec Kruger and others v. The Commonwealth of Australia (2005)1
signified the issues initiated by families when their children were being taken away from
them considering the Aboriginals Ordinance Act. However, the judges had turned it down by
stating that the intentions of designing the Act were not to create any such social issue.
Contextually, the objective of this essay has been to evaluate the case in the context of the
Aboriginals Ordinance Act.
Characterization
Summarization
The case of Alec Kruger and others v. The Commonwealth of Australia (2005)2 has defined
eight inhabitants, who resided in Australia’s Northern Territory and had been directly moved
from their families between 1925 and 1944 within the conditions of the Aboriginals
Ordinance of 1918. In this context, the legislation was allowed to take away children forcibly
from their families who belonged to ‘mixed aboriginal descent’. During this instance, a
mother whose name was Rose Napangardi McClary had tended to bring up a declaration that
the Aboriginals Ordinance of 1918 was completely unconstitutional3. She said that her child
was taken forcibly from her based on the conditions presented by the law or the regulatory
declaration. They conducted varied legal proceedings in the year 1995. Two years later in
1997, the decision that was offered by the High Court suggested that all of the arguments
presented by Rose Napangardi McClary were completely rejected and it was declared that the
concerned Ordinance was constitutional completely4.
The characterization of the involved Aboriginals Ordinance Act in 1918 with respect Section
(1) described that the Chief Protector may initiate keeping any half-caste or aboriginal to
1 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
2 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
3 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
4 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
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remain within aboriginal or reserve the institution's boundaries. The Chief Protector can also
decide otherwise that a concerned child can 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.”5 However, in
the 1980s, mixed-race children who belong to European fathers and Aboriginal mothers were
given to varied orphanages or foster homes or church missions so that they (children) could
be separately raised all away from their own homes, cultures and families. On this note, it
needs to be suggested that the Welfare Organization 1953 had willingly repealed the existing
Ordinance and then came into effect in May 1957. Significantly, the new Ordinance, which
had come into effect did not unequivocally direct its rules towards the aboriginals, instead
had completely applied to them6.
While summarizing the “head of power of the Commonwealth Constitution”, it needs to be
mentioned that the results were attained from the absence of ‘constitutional protection of
human rights’. In this regard, the Northern Territory National Emergency Response Act 2007
(Cth) that was enacted to possess extremely discriminating attitude towards the Aboriginal
People who resided in the Northern Territory, which indeed contradicted to the existing
International Human Rights standards. For instance, the Racial Discrimination Act 1975
(Cth) tends to protect the rights of indigenous people. Furthermore, the Commonwealth's
power under s 51(xxvi), which incorporates 'race power' presently, attempts to protect the
rights of Indigenous Australians. However, there are limitations associated with the
concerned ‘race power’. The High Court had used the proportionality tests to characterise
completely the commonwealth laws. The High Court had directly addressed the case
properly. However, another notion can be signified in this case is that the Commonwealth
5 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
6 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
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