Kruger & Anors v Commonwealth

(1997) 190 CLR 1

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ALEC KRUGER & OTHERS, GEORGE ERNEST BRAY & OTHERS v COMMONWEALTH

Court:

Judges: Brennan CJ
Dawson
Toohey
Gaudron
McHugh
Gummow JJ

Subject References:
CONSTITUTIONAL LAW
Purported invalidity of Aboriginals Ordinance 1918 (NT)
Whether beyond the power which could be conferred to the Governor-General of the Commonwealth and the Legislative Council of the Northern Territory under s 122
Method of characterisation applied to laws purported to be supported by s 122.
Existence of implied constitutional immunity from removal and subsequent detention without due process of law in the exercise of the judicial power of the Commonwealth
Whether Ordinance is contrary to such immunity
Whether s 122 is subject to Ch III
Whether deprivation of liberty can occur without exercise of judicial power.
Existence of implied constitutional principle of legal equality
Whether Ordinance is contrary to such principle.
Existence of constitutional implication of freedom of movement and association
Whether Ordinance is contrary to such freedom
Whether s 122 is subject to implied freedoms.
Convention on the Prevention and Punishment of the Crime of Genocide
Existence of implied constitutional immunity from any law authorising acts of genocide
Whether Ordinance is contrary to such immunity.
Whether Ordinance is a law for prohibiting the free exercise of religion contrary to s 116
Whether s 122 is subject to s 116.
Availability of damages from Commonwealth for breach of the Constitution by an officer of the Commonwealth.
LIMITATION LAWS
Commonwealth and Territory laws
Application of Judiciary Act 1903 (Cth).

Other References:
Aboriginals Ordinance 1918 (NT).
Constitution ss 116, 122.
Judiciary Act 1903 (Cth), ss 56(1), 64 and 79.
Convention on the Prevention and Punishment of the Crime of Genocide.

Judgment date: 31 JULY 1997

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ORDER

Matter No M21 of 1995

1. The questions reserved for the consideration of the Full Court be answered as follows:

"Q.1. Is the legislative power conferred by section 122 of the Constitution or the power to enact the Ordinances and regulations referred to in paragraphs 7-12 inclusive of the Amended Statement of Claim so restricted by any and which of the rights, guarantees, immunities, freedoms, or provisions referred to in paragraph 29 of the Amended Statement of Claim as to invalidate the Acts, Ordinances and regulations referred to in paragraphs A, B, C and D of the claim to the extent pleaded in those paragraphs?"

A. No.

"Q.2. Does the Constitution contain any right, guarantee, immunity, freedom or provision as referred to in paragraph 29 of the Amended Statement of Claim, a breach of which by -

(a)

an officer of the Commonwealth; or

(b)

a person acting for and on behalf of the Commonwealth;

gives rise to a right of action (distinct from a right of action in tort or for breach of contract) against the Commonwealth sounding in damages?"

A. No.

"Q.3. If yes to question 1 or question 2, are any and which of the matters pleaded in subparagraphs (d) and (e) of paragraph 29 of the Amended Defence relevant to the existence, scope or operation at any material time of any and which of the rights, guarantees, immunities, freedoms and provisions?"

A. Unnecessary to answer.

"Q.4. If yes to question 2 -

(a)

on the facts pleaded in paragraphs 1 to 6 of the Amended Statement of Claim, are the Plaintiffs' claims (or any of them) for damages for breach of a constitutional right, guarantee, immunity, freedom or provision statute barred?

(b)

by what statute?"

A. Unnecessary to answer.

"Q.5. If yes to question 2, on the facts pleaded in -

(a)

paragraphs 1 to 6 of the Amended Statement of Claim, paragraph 36B(a) and (c) of the Amended Defence and paragraph 7 of the Amended Reply;

(b)

paragraphs 1 to 6 of the Amended Statement of Claim, paragraph 36B(c) of the Amended Defence and paragraphs 6 and 7 of the Amended Reply,

are the Plaintiffs' claims (or any of them) for damages for breach of a constitutional right, guarantee, immunity, freedom or provision barred, or capable of being barred, by an implied constitutional time limitation requiring that the claims be instituted within a reasonable time?"

A. Unnecessary to answer.

"Q.6. If yes to question 2, on the facts pleaded in -

(a)

paragraphs 1 to 6 of the Amended Statement of Claim, paragraph 36B(a) and (c) of the Amended Defence and paragraph 7 of the Amended Reply;

(b)

paragraphs 1 to 6 of the Amended Statement of Claim, paragraph 36B(c) of the Amended Defence and paragraphs 6 and 7 of the Amended Reply,

are the Plaintiffs' claims (or any of them) for declaratory relief and/or damages for breach of a constitutional right, guarantee, immunity, freedom or provision -

(i)

capable of being barred by laches or other analogous equitable principles?

(ii)

barred by laches or other analogous equitable principles?"

A. Unnecessary to answer.

"Q.7. On the facts pleaded in paragraphs 1 to 6 of the Amended Statement of Claim -

(a)

are the Plaintiffs' claims (or any of them) for damages for wrongful imprisonment and deprivation of liberty statute barred?

(b)

by what statute?"

A. Unnecessary to answer.

2. The plaintiffs pay the defendant's costs.

1. Matter No D5 of 1995

1. The questions reserved for the consideration of the Full Court be answered as follows:

"Q.1. Is the legislative power conferred by section 122 of the Constitution or the power to enact the Ordinances and regulations referred to in paragraphs 4-9 inclusive of the Amended Statement of Claim so restricted by any and which of the rights, guarantees, immunities, freedoms, or provisions referred to in paragraph 26 of the Amended Statement of Claim as to invalidate the Acts, Ordinances and regulations referred to in paragraphs A, B, C and D of the claim to the extent pleaded in those paragraphs?"

A. No.

"Q.2. Does the Constitution contain any right, guarantee, immunity, freedom or provision as referred to in paragraph 26 of the Amended Statement of Claim, a breach of which by -

(a)

an officer of the Commonwealth; or

(b)

a person acting for and on behalf of the Commonwealth;

3. gives rise to a right of action (distinct from a right of action in tort or for breach of contract) against the Commonwealth sounding in damages?"

A. No.

"Q.3. If yes to question 1 or question 2, are any and which of the matters pleaded in subparagraphs (d) and (e) of paragraph 26 of the Amended Defence relevant to the existence, scope or operation at any material time of any and which of the rights, guarantees, immunities, freedoms and provisions?"

A. Unnecessary to answer.

"Q.4. If yes to question 2 -

(a)

on the facts pleaded in paragraphs 1 to 3 of the Amended Statement of Claim, are the Plaintiffs' claims (or any of them) for damages for breach of a constitutional right, guarantee, immunity, freedom or provision statute barred?

(b)

by what statute?"

A. Unnecessary to answer.

"Q.5. If yes to question 2, on the facts pleaded in -

(a)

paragraphs 1 to 3 of the Amended Statement of Claim, paragraph 33B(a) and (c) of the Amended Defence and paragraph 7 of the Amended Reply;

(b)

paragraphs 1 to 3 of the Amended Statement of Claim, paragraph 33B(c) of the Amended Defence and paragraphs 6 and 7 of the Amended Reply,

3. are the Plaintiffs' claims (or any of them) for damages for breach of a constitutional right, guarantee, immunity, freedom or provision barred, or capable of being barred, by an implied constitutional time limitation requiring that the claims be instituted within a reasonable time?"

A. Unnecessary to answer.

"Q.6. If yes to question 2, on the facts pleaded in -

(a)

paragraphs 1 to 3 of the Amended Statement of Claim, paragraph 33B(a) and (c) of the Amended Defence and paragraph 7 of the Amended Reply;

(b)

paragraphs 1 to 3 of the Amended Statement of Claim, paragraph 33B(c) of the Amended Defence and paragraphs 6 and 7 of the Amended Reply,

3. are the Plaintiffs' claims (or any of them) for declaratory relief and/or damages for breach of a constitutional right, guarantee, immunity, freedom or provision -

(i)

capable of being barred by laches or other analogous equitable principles?

(ii)

barred by laches or other analogous equitable principles?"

A. Unnecessary to answer.

"Q.7. On the facts pleaded in paragraphs 1 to 3 of the Amended Statement of Claim -

(a)

are the Plaintiffs' claims (or any of them) for damages for wrongful imprisonment and deprivation of liberty statute barred?

(b)

by what statute?"

A. Unnecessary to answer.

2. The plaintiffs pay the defendant's costs.