Decided 31 July 1997 Prior action(s) none End date July 31, 1997 | Citation(s) (1997) 190 CLR 1 Subsequent action(s) none Ruling court High Court of Australia | |
 | ||
Full case name Alec Kruger & Ors v The Commonwealth of Australia; George Ernest Bray & Ors v The Commonwealth of Australia Judge(s) sitting Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ Similar Koowarta v Bjelke‑Petersen, Commonwealth v Tasmania, Al‑Kateb v Godwin | ||
Kruger v Commonwealth (1997) 190 CLR 1, also known as the Stolen Generation Case, is a High Court of Australia case that deals with any implied right to legal equality, and the section 116 prohibition on the establishment of a religion.
Contents
Background
The plaintiffs were indigenous Australians from the Northern Territory, where the Aboriginals Ordinance 1918 (NT) authorised the removal of children from reserves.
Implied right of legal equality
Although the plaintiffs sought remedies under the Toohey and Gaudron JJ's judgments in Leeth v Commonwealth, only Toohey J in this case sought to imply a right of substantive equality; Gaudron J departed from her position in Leeth to support procedural equality only. Gaudron J was accompanied by Dawson, McHugh and Gummow JJ. Brennan CJ did not consider this issue, as he found that such a right could not apply to the territories, as they were creations of parliament.
Per Dawson J, the due process afforded by the existence of Chapter III courts is of a "procedural rather than substantive nature". As for the existence of discrimination in the Constitution, he disagreed with the notion that because there were provisions protecting the States from discriminatory Commonwealth laws, there should be applicable laws for individuals, on the basis that these protections were founded on different considerations: Melbourne Corporation v Commonwealth (the State Banking Case). Furthermore, where the Constitution has prescribed equality, it has done so explicitly, such as the section 92 prohibition against discrimination of a protectionist kind. However, he recognised that Deane and Toohey JJ based their doctrine of equality on "considerations of a more fundamental kind".
Dawson J also attacked the notion that legal equality might arise from the Constitution as a free agreement of the people; he noted that there was a degree of equality lacking, with regards to women and Aboriginals. In relation to the common law, even if there were a common law right of substantive equality, the Commonwealth parliament has the ability to usurp the common law otherwise its concurrent power will be less than that of the States. Finally, even with the existence of Chapter III courts, it is not possible to declare a law invalid because it is substantively unequal.
Section 116
It was also claimed that the laws enforced a separation of the children from indigenous culture, thus prohibiting the free exercise of religion. This argument was rejected because the law did not have the purpose of restricting the practise of religion.