Kruger & Anors v Commonwealth
(1997) 190 CLR 1(Judgment by: McHugh J)
ALEC KRUGER & OTHERS, GEORGE ERNEST BRAY & OTHERS v COMMONWEALTH
Court:
Judges:
Brennan CJ
Dawson
Toohey
Gaudron
McHughGummow 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
Judgment by:
McHugh J
For the reasons given by Dawson J :
- (1)
- the Aboriginals Ordinance (1918) NT ("the 1918 Ordinance") was authorised by s 122 of the Constitution;
- (2)
- the actions of which the plaintiffs complain were not an exercise of judicial power by the Executive government contrary to Chapter III of the Constitution;
- (3)
- the Constitution contains no general guarantee of due process of law or of legal equality before or under the law; and
- (4)
- the power to legislate under s 122 of the Constitution is not restricted by s 116 of the Constitution.
I would also reject the plaintiffs' claim that the 1918 Ordinance was invalid because it infringed an implied constitutional right of freedom of movement and association for political, cultural and familial purposes. Nothing in s 122 of the Constitution gives any support for this claim [F378] . Nor is there any implication in the Constitution as a whole that supports the claim.
Because ss 7, 24, 64 and 128 and related sections of the Constitution provide for a system of representative and responsible government and a procedure for amending the Constitution by referendum, the Constitution necessarily implies that "the people" must be free from laws that prevent them from communicating with each other with respect to government and political matters [F379] . The freedom arises from the constitutional mandate "that the members of the House of Representatives and the Senate shall be 'directly chosen by the people' of the Commonwealth and the States, respectively." [F380] It exists for the protection of "the people of the Commonwealth" in the case of the House of Representatives and for "the people of the State[s]" in respect of the Senate. As a matter of construction, the constitutional implication cannot protect those who are not part of "the people" in either of those senses.
The reasons that led to the drawing of the implication of freedom of communication lead me to the conclusion that the Constitution also necessarily implies that "the people" must be free from laws that prevent them from associating with other persons, and from travelling, inside and outside Australia for the purposes of the constitutionally prescribed system of government and referendum procedure. The implication of freedom from laws preventing association and travel must extend, at the very least, to such matters as voting for, or supporting or opposing the election of, candidates for membership of the Senate and the House of Representatives, monitoring the performance of and petitioning federal Ministers and parliamentarians and voting in referenda.
However, from the time when the 1918 Ordinance was enacted until it was repealed in 1957 [F381] , the residents of the Northern Territory had no part to play in the constitutionally prescribed system of government or in the procedure for amending the Constitution. The right of the Territories to elect senators or members of the House of Representatives was, as it is today, dependent on federal legislation, not constitutional entitlement. The Northern Territory had no constitutional right during the period 1918 to 1957 to elect or vote for a member of the Senate or the House of Representatives.
It was not until 1922 that the Northern Territory had any representation in the House of Representatives [F382] . Moreover, its member was not given a vote on any question arising in that House. In 1936, the member was given the right to vote on any motion for the disallowance of any Ordinance of the Northern Territory and on any amendment of such motion [F383] . In 1959, this right was extended to any question "on or in connexion with" a proposed law that was determined to relate solely to the Northern Territory [F384] . It was not until 1968 that the member for the Northern Territory was given the same "powers, immunities and privileges" as those enjoyed by members representing State Electoral Divisions [F385] . Furthermore, the Northern Territory had no Senate representation until the enactment of the Senate (Representation of Territories) Act 1973 (Cth), which came into force on 7 August 1974. Indeed, it was not until 1977 that the residents of the Northern Territory finally received constitutional as well as democratic recognition by being given the right to vote in a referendum to amend the Constitution [F386] . By then the 1918 Ordinance had long been repealed.
As the foregoing account shows, at no relevant time were the residents of the Northern Territory part of the constitutionally prescribed system of government. Nor, as the second paragraph of s 24 and ss 25 and 26 of the Constitution and s 15 of the Commonwealth Electoral Act 1918 (Cth) made plain, were the residents of the Territories "people of the Commonwealth" for the purpose of s 24 [F387] . Moreover, at no time during the life of the 1918 Ordinance did an "aboriginal native of Australia", who was resident in the Northern Territory and subject to the 1918 Ordinance, have any right to vote in federal elections [F388] .
For these reasons, nothing in the Constitution implied that the plaintiffs had any freedom or immunity from laws affecting their common law rights of association or travel during the life of the 1918 Ordinance.
Accordingly, I reject the plaintiffs' claim that the 1918 Ordinance is invalid because it burdened their constitutionally protected freedom of association and travel.
In their Statement of Claim, the plaintiffs also claim that ss 6, 7 and 16 of the 1918 Ordinance and s 67, in so far as it conferred power to make or amend relevant regulations, were invalid because those sections authorised acts which were contrary to an implied constitutional right to freedom or immunity from any law or executive act that constituted or authorised the crime against humanity of genocide. The plaintiffs claim that the United Nations' Convention on the Prevention and Punishment of the Crime of Genocide [F389] ("the Genocide Convention") gave effect to a fundamental rule of international law and that s 122 of the Constitution does not authorise a law that would breach such a rule.
However, it is unnecessary to deal with the constitutional point. The 1918 Ordinance did not authorise genocide. Art II of the Genocide Convention relevantly defines genocide to mean certain acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". The acts include "[i]mposing measures intended to prevent births within the group" and "[f]orcibly transferring children of the group to another group". There is, however, nothing in the 1918 Ordinance that could possibly justify a construction of its provisions that would authorise the doing of acts "with intent to destroy, in whole or in part" the aboriginal race.
Accordingly, I would also reject the plaintiffs' claim based on the Genocide Convention.
The questions in the actions should be answered in the manner indicated in the judgment of Dawson J.