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Kennedy, Lachlan; Nance, Deborah --- "Stolen Generations Litigation: Kruger, Bray v Commonwealth" [1997] IndigLawB 93; (1997) 4(6) Indigenous Law Bulletin 22


Stolen Generations Litigation:
Kruger, Bray v Commonwealth

High Court, Brennan CJ,

Dawson, Toohey, Gaudron, McHugh and Gummow JJ

[1997] HCA 27; (1997) 146 ALR 126

31 July 1997

Casenote by Lachlan Kennedy and Deborah Nance[1]

Note: Page references in this casenote are to the decision published by the Court an 31 July 1997. The ALR report was published just as this issue of the ILB went to print.

In all but one instance, the plaintiffs are persons who were allegedly removed from their parents by the Chief Protector of Aborigines in the Northern Territory. The other plaintiff is a mother whose child was allegedly removed from her. The removals were all done by the Chief Protector acting under the Aboriginals Ordinance 1918 (NT) ('the Ordinance'), the first in 1925, the last in 1949.

The Ordinance was enacted pursuant to Commonwealth legislation providing for the government of the Northern Territory. That law in turn was enacted pursuant to the Commonwealth's constitutional power, conferred by s122 of the Constitution, to make laws for the government of Territories.

The validity of provisions of the Ordinance permitting the Chief Protector to take Aboriginal children into custody if it was in his opinion necessary in the interests of the child (s6), making him the guardian of all Aboriginal children (the guardianship later extended to all Aboriginal people) (s7), and giving him a power to confine Aboriginal people on reserves (s16), were foremost amongst those challenged.

At a preliminary hearing before Brennan CJ questions were formulated which were then referred to the Full Court for consideration. The questions dealt with the validity of the challenged provisions of the Ordinance in respect of the following major issues:

1. whether the Ordinance was contrary to an implied constitutional right to or immunity from removal and detention without due process of law in the exercise of the judicial power of the Commonwealth;
2. whether it was contrary to an implied constitutional guarantee of equality under and equal protection of laws of the Commonwealth;
3. whether it was contrary to an implied constitutional right to freedom of movement and association;
4. whether it was contrary to an implied constitutional freedom from any law constituting genocide;
5. whether it was a law prohibiting the free exercise of a religion contrary to s116 of the Constitution. The plaintiffs also unsuccessfully challenged the Ordinance on the basis that it was not properly a law for the Government of a Territory.

Additionally, the Court was asked whether there was any right of action in respect of a breach of the above implied rights by an officer of the Commonwealth which would give rise to damages against the Commonwealth.

Since the Commonwealth's power to make the Ordinance ultimately came from s122 of the Constitution, the questions (which were substantially the same for both actions) were drafted so as to discover whether s122 was subject to any of the above implied rights or freedoms. The plaintiffs' arguments in relation to due process of law depended on persuading the Court that s122 was subject to implied limitations based on Chapter III of the Constitution, which deals with the Commonwealth's judicial power, and which has been held by the High Court to require the separation of judicial and executive functions. The plaintiffs argued that the Ordinance conferred judicial power, namely the power to take people into custody, on the Chief Protector. The plaintiffs' arguments in relation to genocide were based on the 1948 Convention on the Prevention and Punishment of the Crime of Genocide ('the Genocide Convention'), and a suggested pre-existing norm of international law in relation to genocide which, they argued, fettered Commonwealth power to make laws.

Reasons

Scope of s122: due process of law; equality under laws of the Commonwealth

Brennan CJ applied accepted authority to construe s122 as a complete power to make laws for and about the government of Territories. Therefore s122 could not be limited by implied restrictions derived from provisions of the Constitution that distribute powers as between the Commonwealth and the States, including the judicial power of the Commonwealth in Chapter III. This conclusion was fatal to the plaintiffs' arguments that s122 was subject to implied requirements with respect to due process of law and equality before the law which were based on Chapter 111.

Dawson J (McHugh J concurring on this point) also found that the Commonwealth is, with respect to the Territories, a completely sovereign legislature (p 26). He considered that the powers conferred on the Chief Protector by the Ordinance were not judicial in character. But even assuming they were, in his view the judicial power exercised in the Territories is not the judicial power of the Commonwealth within the meaning of Chapter III.

The plaintiffs based their argument concerning equality before the law on the reasoning used by the minority in Leeth v Commonwealth ((1992) 107 ALR 672) (ie Deane and Toohey JJ). Dawson J took some care to reject this line of reasoning, and in particular its use of the common law as a source of constitutional implied rights (p 38).

Toohey J found the argument that the doctrine of the separation of powers based on Chapter III extends to the Territories very persuasive. However, he thought the responsibility for welfare placed upon the Chief Protector was at odds with the notion that the power of detention was judicial, and therefore the plaintiffs' argument based on judicial power did not succeed (pp 54-60). Toohey J adhered to the position he adopted in Leeth that there is a constitutional right to equality under the law. However, he considered that the Ordinance should be assessed against the standards prevailing at the time, and he declined to determine whether the Ordinance was inconsistent with the implied right to equality on the basis that there had been no proper consideration of the facts (p 75).

Gaudron J considered that the power to deprive a person of liberty is not necessarily a judicial power, and therefore it was not clear that the Ordinance did confer judicial power on the Chief Protector. She therefore found it unnecessary to decide whether s122 is confined by the separation of powers doctrine derived from Chapter III. Gaudron J adhered to the view she expressed in Leeth that there is a limited constitutional guarantee of equality before the law deriving from Chapter III, but that there is no room for any wider implication of a constitutional right to equality. The right to equality deriving from Chapter III has no bearing on the Ordinance (p 96).

Gummow J, in relation to the question of an implied guarantee of legal equality, considered that there is 'no anchor' for such an implied right in the Constitution, and extracting a general doctrine of legal equality from the common law and treating it as constitutionally entrenched is 'too large a step' (p 146). He also considered that the judicial power of the Commonwealth required that a power of detention which is punitive in character could not be conferred on the executive. However, in his view the Ordinance did not confer judicial power on the Chief Protector (p 155), since the Chief Protector's power to take people into custody could be seen as necessary for a legitimate non-punitive purpose (namely the welfare and protection of persons).

Scope of s122: implied constitutional right to freedom of movement and association

Brennan CJ, with whom Gummow J appeared to agree (p 160), took the view that such a right had not hitherto been implied in the Constitution and that 'no textual or structural foundation for the implication has been demonstrated in this case' (p 22). He concluded that even if such a freedom did exist it would only have been relevant to the validity of actions taken under the Ordinance, not the validity of the Ordinance itself.

Dawson J's clear view (p 50) was that there was nothing in s122 which suggested that laws made by the Commonwealth for the government of a Territory are subject to limitations arising from concepts such as freedom of communication or 'such other rights to freedom of movement and association as may be suggested as constitutional requirements' (p 51).

McHugh J agreed that nothing in s122 or any implication in the Constitution as a whole would support the plaintiffs' claim that the scope of s122 is restricted by the implication they asserted (p 139). He did express the view that the Constitution implies that 'the people' must be 'free from laws that prevent them from associating with other persons, and from travelling inside and outside of Australia for the purposes of the constitutionally prescribed system of government and referendum procedure' (p 140). This did not extend to the Territories during the period the Ordinance was in operation, however, because at that time, the residents of the Northern Territory were not part of the constitutionally prescribed system of government (p 140).

Toohey and Gaudron JJ found that such an implication did restrict the scope of the Territories power in s122 (pp 79 and 111). Both took the view that it was an essential element of freedom of political communication. Toohey J did not find it possible to say at this stage of the proceedings whether the challenged provisions were necessarily invalid. To reach that conclusion would require a trial which considered whether the Ordinance was, or could be considered to be, appropriate and adapted to the purpose of the protection and preservation of Aboriginal people.

Gaudron J (p 124) found s6 (to the extent it authorised taking people into custody), s16, and s67(1)(c) of the Ordinance invalid. In her view the freedom of movement and association is not absolute (p 113). After assessing whether the impugned sections constituted an impermissible restriction on the freedom, she found that they could not be said to be 'in any way necessary for the protection or preservation of Aboriginal people' (p 124).

Scope of s122: freedom from any law constituting genocide

Dawson J (p 43) (with whom McHugh J agreed), Toohey J (p 64), Gaudron J (p 89) and Gummow J (p 150) each found that the Ordinance, which was required to be administered in the interests of Aboriginal people generally, was not a law authorising genocide as defined in the Genocide Convention, and therefore found it unnecessary to decide if s122 was confined by an implied limitation in relationship to genocide. However, had it been necessary Gaudron J would have found that s122 did not authorise laws permitting genocide (p 88).

Was a law prohibiting free exercise of a religion contrary to s116 of the Constitution?

Brennan CJ (p 9) found that none of the impugned laws had the purpose of prohibiting the free exercise of religion. He therefore found it unnecessary to consider whether s122 of the Constitution was subject to s116.

Dawson J (McHugh J concurring) concluded that s122 is not confined by s116, principally because the latter provision is located in Chapter V of the Constitution, and is thus part of the Federal arrangements of the Constitution (pp 30-31).

Toohey J (pp 60-62) was sympathetic to the view that s116 restricts laws that could be made under s122, but did not make a decision on this point. However, he found that the Ordinance was not a law prohibiting the free exercise of religion. He acknowledged that in reaching this conclusion, he could not take into account material presented to the Court as to the effect of the administration of the Ordinance.

Gaudron J (p 107) found that s116 applied to any Commonwealth law, under whatever power those laws were made. It thus became necessary for her to deal with the question of whether the Ordinance was inconsistent with s116. However, this question involves factual issues which could not be considered, and Gaudron J declined to determine the issue (p 117).

Gummow J considered that s116 applies to any Commonwealth law of the type described by s116 (p 161). However, s116 is concerned with the objective or purpose of the law in issue (p 153). In forming a view of the purpose of the Ordinance, Gummow J acknowledged that under the procedure adopted for determining this action, evidence of the operation of the Ordinance could not be relied upon to suggest that its purpose was different from that appearing from its terms (p 154). He thus found that the Ordinance did not infringe s116.

Action for breach of constitutional right or guarantee

Brennan CJ, Toohey and Gaudron JJ found that there is no action in damages for breach of constitutional guarantees. Dawson, McHugh and Gummow JJ found it unnecessary to consider the question dealing with the right of action for breach of constitutional limitations. This issue therefore was determined in accordance with the judgment of the Chief Justice.

Future of the litigation

This judgment does not end the litigation in relation to the stolen generations arising from the Commonwealth's government of the Northern Territory. The validity of particular removals can still be challenged. In any case, where the challenge involves the examination of the opinion of the Chief Protector as to whether a particular action was in the interests of a person, the reasonableness of that opinion can be tested. However, it is a moot point as to whether reasonableness is to be judged by contemporary standards, or standards prevailing at the time of the removal.


[1] This piece is written in a personal capacity, and does not purport to reflect the views of the Australian Government Solicitor, the Commonwealth Attorney-Generals’ Department, or of the Commonwealth.


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