Parliamentary Supremacy and Judicial Interpretation
Added on 2020-03-04
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Running head: KRUGER V COMMONWEALTHKruger v CommonwealthName of the studentName of the universityAuthor note
1KRUGER V COMMONWEALTHThe case of Kruger v Commonwealth is also referred to as the stolen generation casein this case a challenge regarding the validity of legislation applicable in the north territoryduring the year 1918 to 1957 was rejected by the High Court which authorised purportedlythe removal of aboriginal children from their families. The case took place in the high courtof Australia and was presided over by Brennan CJ, Toohey, Dawson, Gaudron, Gummowand McHuge JJ. The challenge to the validity of 1980 ordnance was rejected by the majorityof judges it was also provided that no implied right in relation to legal equality exist. It wasfound by the judges in this case that 1918 ordinance had a beneficial intention with nopurpose of restricting religious practice all promoting genocide. It was also unanimously heldby the High Court that no separate action with respect to the breach of any constitutional rightexisted1.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 thenorthern territory Aboriginals Act 1910 was passed by the government2. Through theprovisions of this act chief Protector of aboriginals had been appointed as the legal guardianof all children whose parents were aboriginals3. The chief protector in addition was providedwith the authority to send such children to aboriginal institution or a reserve. The legislationmeant that children belonging to aboriginal parents would be removed from the custody onlyby an administrative order as compared to those children who belong to non aboriginalparents and could only be removed by an order of the court. Even after the control of thenorthern Territory has been transferred to the Federal government from South Australia thepolicy of removing indigenous children from the custody of their family continued. The1 Kruger v Commonwealth [1997] HCA 272 Kune, R."The Stolen Generations in Court: Explaining the Lack of Widespread Successful Litigation byMembers of the Stolen Generations".(2011) 30 University of Tasmania Law Review 32.3The Northern Territory Aboriginals Act 1910(SA).
2KRUGER V COMMONWEALTHpowers of the Aboriginal Ordinance 1918 had been extended by bringing the aboriginalfemales under the chief protector’s exclusive control. The churches operated most of theaboriginal institutions. From the year 1964 the circumstances in which the indigenouschildren could be removed from the custody of their parents became same which wereapplicable to non indigenous children however the condition of life which the indigenouspeople were subjected to place them at a greater risk of their children being removed from thecustody because of destitution or neglect. As reported by 91% of the children which had beenplaced in Foster care were identified as indigenous. The bringing them home report waspublished by the human rights and equal opportunity commission in 1997 with respect to itsenquiry into the separation of indigenous children from their families. Arrange ofrecommendations was made by the report which included involving charities and churchesgovernment apologies, paying the family is monetary compensation and the requirement forthe Federal government enact legal provisions in accordance with genocide convention4. In this case compensation was demanded by the plaintiff in relation to deprivation ofLiberty and wrongful imprisonment. A claim made by seven plaintiffs namely was related tocompensation for being removed from their families when they were child during the year1925 and 1944. The claim made by the eight plaintiff was made as she was a mother whosedaughter has been removed from her custody. The primary barrier which prevented themembers of the stolen generation to make a claim was that removal which was done by thegovernment has been authorised by the Aboriginal Ordinance 19185.There were primarily five arguments which one made by the plaintiff stating that theaboriginals Ordinance 1918 was not valid act of the parliament. The plaintiff pleaded that theordinance in French the doctrine of separation of power, the common law doctrine is4Australia – a national overview: resource sheet. Human Rights and Equal Opportunity Commission. 2010.Retrieved29 May20115"Aboriginals Ordinance No. 9 of 1918 (Cth)". Museum of Australian Democracy.
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