3016LAW Constitutional Law: Kruger v Commonwealth Case Analysis

This essay provides a detailed analysis of the case of Alec Kruger and others v. The Commonwealth of Australia (2005), focusing on the legal arguments surrounding the Aboriginals Ordinance Act of 1918. The essay examines the characterization of the legislation, summarizes the key aspects of the case, and highlights the leading decisions made by the High Court of Australia. It explores the constitutional interpretation and doctrine, including the implied rights doctrine and the application of the Genocide Convention. The analysis evaluates the High Court's interpretation of the word 'care' in relation to the Aboriginals Ordinance Act and assesses whether the court afforded sufficient weight to its meaning. The essay also discusses the historical context of the case, the forced removal of Aboriginal children, and the legal challenges to the constitutionality of the legislation. The conclusion summarizes the key findings and provides an overall assessment of the case's significance in Australian constitutional law.

3016LAW Constitutional Law
Page 1

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
Page 2

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.
Page 3

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.
Page 4

possessed plenary power on those people who belonged to varied races so that any laws or
rules established by them must be put into effect. They did not bother much about the
complete or partial benefits of the indigenous people.7
Furthermore, the legislative suggested that the main aim to take away the aboriginal children
from their own family was to offer care so that any kind of cruel treatments are not directed
towards them. In the year 1929, Commonwealth Government received immense pressure
from the Association for the Protection of Native Races and an inquiry was initiated under
the authority of J W Bleakley, ‘the Queensland Chief Protector of Aborigines’. In the
speculations, it was found out that in the North Territory, 21,000 people resided and about
8,000 were ‘half-castes’ among them. However, many of them were not paid with subsequent
wages and the conditions of their sustenance were of severe concern. This made the
Commonwealth take away all the children from their families so that care missions could be
ensured8.
Leading Decisions
The case of Alec Kruger and others v. The Commonwealth of Australia (2005)9 had initiated
a sort of challenge on the part of two aboriginal plaintiffs and questioned the constitutionality
of the legislation that persisted in the Northern Territory. In this case, the issue was the
forceful separation of kids from their own families for parents belonging to aboriginal or
indigenous caste. The laws that were involved in this particular context suggested certain
impugned Ordinances, which were formulated by the Australian States for ensuring that
Aborigines were significantly assimilated into the population of European inhabitants. Based
7 Melissa Castan, “Constitutional Deficiencies in the Protection of Indigenous Rights: Reforming the 'Races
Power” (2011) 7(25) Indigenous Law Bulletin 12.
8 Ross Kidd, ‘Taken on Trust’ (2006) Inquiry into Stolen Wages Senate Legal and Constitutional References
Committee 22.
9 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
Page 5

on this context, the mixed-blood Aborigines were forcibly separated from their indigenous
parents at the former's childhood days so that they could be merged most importantly into the
'white society'. The then-contemporary wisdom considered well that the ‘pure-blood’
Aborigines were supposed to be extinct soon thus; the children were forcibly taken away
from their aboriginal parents10.
The High Court of Australia while analyzing the Ordinance stated that the Aboriginal
Ordinance Act was not at all “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.”11 However, it needs to be said that
the concerned ordinance was directed to one specific race, but the legislation that was
designed in that course did not at all tend to be punitive towards the racial or the aboriginal
group. On the contrary, the High Court while analyzing the situation or rather the details
included in the Ordinance found that there were immense benefits associated with its
implementation and all of them were targeted towards the aboriginal group. In a brief, it can
be said that the intentions of those who had introduced the Ordinance tried to ensure that they
were designed to serve the best interests on the part of the Aboriginals. Furthermore, the
jurisdictions that had been passed by the Court also suggested that although the Ordinance
was designed to take away the children from their families is true enough, it cannot be
implied that it was done to destroy the families or the children. In this context, it has been
also mentioned by the courts that neither wholly nor partially any wrong intentions existed in
exercising the Ordinance. Specifically, it can be asserted that the declaration, which had been
sought by the plaintiffs were not at all true, which suggested that forcibly taking away of
10 Sarah Joseph, “Kruger v Commonwealth: Constitutional Rights and the Stolen
Generations” (No Date) 24(2) Monash University Law Review 487.
11 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
Page 6

children were initiated for destroying or bringing demerits from the aboriginal people.
Therefore, the Court by any means did not at all execute crude acts of genocide, which has
been already defined in the Genocide Convention. Furthermore, the High Court involved in
the analysis of this case went on to reject the freedom on the part of the plaintiff's argument
concerning the Ordinance's invalidation. Another important aspect that needs to be suggested,
herein, incorporates that “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.”12
Specifically, in July 1997, the appeal of the plaintiffs was rejected on all possible grounds by
the High Court. The reasoning the High Court had stated was that the detention powers were
exercised by the Aboriginals Ordinance in the Northern Territory was invalidly conferred so
that the children who were ‘aboriginal and half-caste ‘could be detained and removed
specifically13. However, when the plaintiffs had mentioned that the Aboriginals Ordinance
was initiated or designed to hamper the legal equality in those places, Gummow JJ, Chief
Justice Dawson and Brennan, Gaudron and McHugh rejected all the possible existing facts
that could limit the Ordinance. This was justified with the fact that the Ordinance’s power
was directly mentioned in the ‘Commonwealth by section 122 of the Constitution’, thus there
was no question associated with engaging any kind of constrictions on it.14
Interpretation
Constitutional Interpretation
12 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
13 Chris Cunneen, and Julia Grix, ‘The Limitations of Litigation in Stolen Generations Cases’ (2004) Research
Discussion Paper 11.
14 Chris Cunneen, and Julia Grix, ‘The Limitations of Litigation in Stolen Generations Cases’ (2004) Research
Discussion Paper 12.
Page 7

Based on the norms and rules that had been incorporated into the Constitution, certain
commentators and judges by the end of the first century started feeling restless. They tried to
look over the constraints that had been offered to the orthodox principles concerning the legal
interpretation. This is the reason behind they had called directly for 'greater judicial latitude'
so that the existing constitution can be interpreted successfully. Furthermore, interpretation
was immensely needed so that the founders’ intentions could be unconstrained and the
Constitution can be significantly adapted to suffice the fundamental needs and contemporary
values, which persisted in the society. In this context, it can be stated that the Constitutional
obstacle associated with its enactment had hardly occurred in American history. Moreover,
the implied right, which is concerned with legal equality was framed with several queries.
Furthermore, the conditions of legal equality were subsequently rejected by the majority of
the judges in the High Court in the case of Alec Kruger and others v. The Commonwealth of
Australia (2005)15;16.
The clauses presented in Section 116 that incorporates 'establishment 'and 'free exercise' in
the American Constitution was seen to have been narrowly interpreted on the part of the High
Court judges. In other words, it can be said that the inclusive and generous definition of the
notion of religion had been narrowly interpreted by the High Court Judges to suggest
instances of the conservative establishment and free exercise. In the case of Alec Kruger and
others v. The Commonwealth of Australia (2005)17, the plaintiffs of the Northern Territory
had explained that the forced removal of varied indigenous children with the help of the
Aboriginals Ordinance Act significantly hampered their tribal heritage and culture. This was
the reason for invalidating the Act. However, the judges of the High Court had stated that the
law did not at all ever have mentioned the word, such as, ‘religion’. Moreover, the
15 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
16 Larissa Behrendt, ‘Genocide: the distance between law and life’ (2001) 25 Aboriginal History 136.
17 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
Page 8

Aboriginals Ordinance Act did not restrict free exercise on the part of the residents in the
Northern Territory. The statement mentioned by the Judges suggested that"'[n]o conduct of a
religious nature was proscribed or sought to be regulated in any way."18The declaration,
which had been initiated by Krugerhad stated that the Aboriginals Ordinance Act was
completely inappropriate. However, at least four of the judges analyzing this case had
rejected their appeal.19
Constitutional Doctrine
The need associated to determine the meaning of the varied laws or rules included in the
Constitution was immense to make sure that all the contemporary requirements and values
are met appropriately.20 The ‘implied rights’ doctrine that had been presented in the case of
Alec Kruger and others v. The Commonwealth of Australia (2005)21 had presented the notion
incorporating ‘preoccupation with equality’22. Herein, the doctrine that had been established
in the concerned case had been attained from some moral standard. It was completely
ambivalent and originated mainly on the perspectives, which illustrated the ‘nature of
humanity’. Specifically, the High Court judges explained the illustration of humanity to be
the only concern behind the implementation of Aboriginals Ordinance Act23. Furthermore,
Justice Gordon had focused on the 'liberty of individual' in this particular case, which had
shown the doctrines.24
18 Alex Deagon, ‘Liberal Assumptions in Section 116 Cases and Implications for Religious Freedom’ (2018) 46
Federal Law Review 116.
19 Nicholas Aroney, ‘The New Hope Case: An Australian Perspective’ (No Date) Nanovic 5.
20 Brandon J. Murrill, ‘Modes of Constitutional Interpretation’ (2018) Congressional Research Service 1.
21 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
22 Zoë Robinson, ‘A Comparative Analysis of the Doctrinal Consequences of Interpretive Disagreement for
Implied Constitutional Rights’ (2012) 11(1) Washington University Global Studies Law Review 98.
23 Anthony Matthew Dillon, ‘A Response To The Jurisprudence Of The High Court In The ‘Implied Right
Cases: An Autochthonous Australian Constitution, Popular Sovereignty and Individual Rights?’ (2005) JCU 63.
24 Rachael Gray, ‘The Constitutional Jurisprudence of the High Court of Australia: Legalism, Realism,
Pragmatism, Judicial Power and the Dixon, Mason and Gleeson Eras’ (2007) The University of Adelaide
Australia 137.
Page 9

Preferable Doctrine
The doctrine that can be preferred in this particular case concerning the judgments by the
High Court judges is the one that asserts no harm was intended to be brought on the
indigenous people in implementing the Aboriginals Ordinance Act. The High Court of
Australia had suggested that the reason for designing and implementing the Ordinance was
not to bring any kind of violent afflictions on the race and its people.25 However, some of the
judges had established the doctrine that the Ordinance had been narrowly described in the
names of ‘free exercise’ and ‘establishment’26. The judges of the High Court had also stated
that the act, which had been introduced in the Northern Territory, did not at all implicate any
kind of injustice towards the religion practised by the Aboriginals residing therein.27
However, the opinion, which had been instigated by the judges suggesting that the Ordinance
was initiated to ensure that proper care is offered to the children, which is mainly to improve
the living conditions of the Aboriginals and the Indigenous people in that area. Moreover, the
most preferred doctrine, herein, suggests that the Ordinance was designed in a way so that the
residents of the Northern Territory do not face any kind of issues. The judges had also
suggested that the Ordinance did not intend to destroy the heritage of the people.
Contradictorily, the sustenance issues were so extensive on the part of the aboriginals that
taking away the children was immensely necessary; as otherwise, they might have been dead
within a year. Thus, this particular doctrine stated by the judges suggested that the Ordinance
was intended to offer immense care to the children of the aboriginals by admitting them in
certain European adoption homes. 28 In this regard, the issues that the plaintiffs had raised
25 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
26 Paul T. Babie and Arvind P. Bhanu, ‘Freedom of Religion and Belief in India and Australia: An Introductory
Comparative Assessment of Two Federal Constitutional Democracies’ (2018) 39 (1) Pace Law Review 27.
27 Kathleen E. Foley, ‘Australian Judicial Review’ (2007) 6 (2) Orrick, Herrington & Sutcliffe LLP 289.
28 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
Page
10

concerning the religious factors, Latham CJ, one of the case analyzers had understood that the
Commonwealth did not have any power concerning religion. Thus, 116 s had been introduced
in the case of Alec Kruger and others v. The Commonwealth of Australia (2005)29 so that it
can have a certain extent of connection with the religion30. Thus, the notion presented by the
High Court to offer care to the children by forcibly taking away from their parents can be
emphasized significantly.
Conclusion
In the case of Alec Kruger and others v. The Commonwealth of Australia (2005), the
plaintiffs had raised charges for the instances that happened with them and resulted in
forcibly taking away their children. However, varied Constitutional doctrine was offered and
judges had refused their requests on grounds of reasonable grounds.
29 Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995.
30 Melbourne Law School, ‘Legal Aspects of the Protection of Religious Freedom in Australia’ (2009) Associate
Professor Carolyn Evans Centre for Comparative Constitutional Studies 23.
Page
11

Bibliography
Case
Alec Kruger and others v. The Commonwealth of Australia (1997) M21 of 1995
Journals
Aroney, Nicholas, ‘The New Hope Case: An Australian Perspective’ (No Date) Nanovic 1
Babie, Paul T. and Arvind P. Bhanu, ‘Freedom of Religion and Belief in India and Australia:
An Introductory Comparative Assessment of Two Federal Constitutional Democracies’
(2018) 39(1) Pace Law Review 2
Behrendt, Larissa, ‘Genocide: the Distance between Law And Life’ (2001) 25 Aboriginal
History 132
Castan, Melissa, ‘Constitutional Deficiencies in the Protection of Indigenous Rights:
Reforming the 'Races Power’ (2011) 7(25) Indigenous Law Bulletin 12
Cunneen, Chris and Julia Grix, ‘The Limitations of Litigation in Stolen Generations Cases’
(2004) Research Discussion Paper 3
Deagon, Alex, ‘Liberal Assumptions in Section 116 Cases and Implications for Religious
Freedom’ (2018) 46 Federal Law Review 113
Dillon, Anthony Matthew, ‘A response To The Jurisprudence Of The High Court In The
‘Implied Right Cases: An Autochthonous Australian Constitution, Popular Sovereignty and
Individual Rights?’ (2005) JCU 10
Foley, Kathleen E. ‘Australian Judicial Review’ (2007) 6 (2) Orrick, Herrington & Sutcliffe
LLP 281
Gray, Rachael, ‘The Constitutional Jurisprudence of the High Court of Australia: Legalism,
Realism, Pragmatism, Judicial Power and the Dixon, Mason and Gleeson Eras’ (2007) The
University of Adelaide Australia 19
Page
12

Kidd, Ross, ‘Taken on Trust’ (2006) Inquiry into Stolen Wages Senate Legal and
Constitutional References Committee 1
Melbourne Law School, ‘Legal Aspects of the Protection of Religious Freedom in Australia’
(2009) Associate Professor Carolyn Evans Centre for Comparative Constitutional Studies 5
Murrill, Brandon J., ‘Modes of Constitutional Interpretation’ (2018) Congressional Research
Service 1
Robinson, Zoë, ‘A Comparative Analysis of the Doctrinal Consequences of Interpretive
Disagreement for Implied Constitutional Rights’ (2012) 11(1) Washington University Global
Studies Law Review 95
Sarah Joseph, ‘Kruger v Commonwealth: Constitutional Rights and the Stolen Generations’
(No Date) 24(2) Monash University Law Review 486
Page
13