Kruger v Commonwealth: Constitutional Law Essay on 'Care' (LAW3016)

This research essay critically examines the High Court of Australia's interpretation of the word "care" within the Aboriginals Ordinance Act 1918, focusing on the case of Kruger v Commonwealth. The essay begins by characterizing the legislation in question, specifically the sections containing the word "care," and analyzes its constitutional validity. It then explores the meaning and construction of "care," considering its implications for the education, custody, and maintenance of Aboriginal people. The essay assesses whether the judges in Kruger afforded sufficient weight to the interpretation of "care," arguing that the construction of the word did not adequately address issues of freedom, immunity, and international law, particularly in relation to the Genocide Convention. The analysis considers the impact of the Aboriginals Ordinance Act on the Stolen Generation and concludes that the court's interpretation, while potentially aiming to avoid destruction, failed to provide a clear legal framework aligned with international standards, highlighting violations of freedom and the potential for genocidal intent. The essay utilizes characterization and interpretation methods, examining the judges' tests, consideration of power limits, and practical effects on the plaintiffs to support its arguments.

Constitutional Law Research Essay
Construction to Word “care” in the Ordinance
The word care is constructed in a significant way in the ordinance, one that captures the
responsibilities of control and provides for education, custody, and maintenance of aboriginals.
Its establishment when related to the concept behind the sufficiency of the same word in Section
6 of the Aboriginal Ordinance Act 19181. The judges in Kruger afforded a proper construction to
the word "care" since the provision of the word is constructed on the foundation of possibilities
and necessity from the legal point of view. This is because on the reserve people for example, the
construction of the word care in the ordinance provides for relocation, specified detention, and
removals when there is necessity and sufficient institutionalization. This comes with key
provisions that must be legally adopted sufficiently under the same Act.
The same adopts some basic regulations on care, custody, and education of the same
children which on a legal front caters for the transfer of any `aboriginal' or `half-caste' child to an
`aboriginal institution' or industrial school.2 In addition, the protection of aboriginals and the
benefit of care based on the constitutional application under a stated aboriginal institution is yet
another justification that the judges in Kruger afforded a proper construction to the word "care".
The construction of the word in the long run allocates some basics of legal supervision and
specified apprenticeship. When opinions of the chief protector are in necessity and desirable, the
construction of care is that he or she must be responsible for caring and protecting such.
However this was not the same with Kruger judges.
The declaration however must be confirmed from the Director and adhered to on the
basis of ancestry and the best interests for the people involved. The power behind care in the
1 Silverstein
2 Wind-shuttle

Aboriginals Ordinance 1918 is catered for by the same director who also keeps the registry and
declarations of interests and legal fronts adhered to during the whole process3. From the
amendments point, management of personal affairs was not a constituent consideration to the
construction of care in the Aboriginals Ordinance 1918. This is then considered a subject of
ordinance and the person thereof.
Conclusion
Considerably, the construction of the Aboriginals Ordinance Act (1918) on the stolen
generation brought specifics on legal framework on the generation of Australian Aboriginal and
Torres Strait Islander people. From the discussion, it is evident that the Kruger judges did not
afford a proper construction of the word “care”. This is because the impacts were basically
represented on violations and assertions of freedom and immunity that were not clearly displayed
as intent to justice and opinion based analysis of the court. To some extent, the indescribable
pain was felt over and over due to the racial opinions and the principles of statutory construction
that were referenced under the same context.
On a legal front, it may be argued that the intent of the ruling was to avoid destruction but
the construction and the conclusion did not provide a basic compel to the specifics and
conformities with international law. The legislation of beneficial intent was presented throughout
amendments over the years but the specific case brought some emphasis on some intent to
destroy which was a failure from the ordinance. The Kruger Litigation basically provided a clear
discussion based on the issues of the implications made under the constitutional prohibition on
genocidal legislation.
3 Wind-shuttle

Bibliography

Silverstein, Ben, "‘Possibly They Did Not Know Themselves’: The Ambivalent Government Of Sex
And Work In The Northern Territory Aboriginals Ordinance 1918" History Australia (2017)
14(3):344-360
Windschuttle, Keith. "Historical deceptions and inconvenient truths." Quadrant 61.4 (2017): 57.