Parliamentary Supremacy and Judicial Interpretation

This assignment examines a legal case concerning an ordinance that challenged religious practices. While the high court upheld the ordinance, arguing it served the best interest of the child and reflected prevailing social values at the time, the analysis reveals potential bias in judicial interpretation favoring parliamentary supremacy over constitutional limitations. The case highlights the complexities of separation of powers and the influence of political considerations on legal decision-making.

Running head: KRUGER V COMMONWEALTH
Kruger v Commonwealth
Name of the student
Name of the university
Author note

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KRUGER V COMMONWEALTH
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
existed1.
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 government2. Through the
provisions of this act chief Protector of aboriginals had been appointed as the legal guardian
of all children whose parents were aboriginals3. 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
1 Kruger v Commonwealth [1997] HCA 27
2 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.
3 The Northern Territory Aboriginals Act 1910 (SA).

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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 convention4.
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 19185.
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
4 Australia – a national overview: resource sheet. Human Rights and Equal Opportunity Commission. 2010.
Retrieved 29 May 2011
5 "Aboriginals Ordinance No. 9 of 1918 (Cth)". Museum of Australian Democracy.

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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
Commonwealth6 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 Limited7. 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 powers8. It had been held
previously in the case of Attorney-General (Cth) v The Queen9 that terrorism does not
come under the part of that Federal judicial authority.
6 [1915] HCA 17
7 [1918] HCA 56
8 R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10
9 [1957] UKPCHCA 1

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The power in relation to the second proposition arise from the case of Chu Kheng
Lim v Minister for Immigration10 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
10 [1992] HCA 64

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KRUGER V COMMONWEALTH
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 Commonwealth11. 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
11 [1992] HCA 29

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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.

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References
"Aboriginals Ordinance No. 9 of 1918 (Cth)". Museum of Australian Democracy.
Attorney-General (Cth) v The Queen [1957] 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 [1992] 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 [1992] HCA 29, (1992) 174 CLR 455, High Court (Australia).
New South Wales v Commonwealth [1915] HCA 17, (1915) 20 CLR 54.
R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10, (1956) 94 CLR 254.
The Northern Territory Aboriginals Act 1910 (SA).
Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56, (1918) 25
CLR 434