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Buti, Tony --- "Kruger and Bray and the Common Law" [1998] UNSWLawJl 15; (1998) 21(1) UNSW Law Journal 232
Kruger And Bray And The Common Law
TONY BUTI[*]
I. INTRODUCTION
The tabling in Commonwealth Parliament on 25 May 1997 of the Human Rights
and Equal Opportunity Commission (HREOC) report of the
National Inquiry into
the Separation of Aboriginal and Torres Strait Islander Children from their
Families,
[1] titled
Bringing
Them Home,
[2] focused public
attention on this nation’s history of removing Indigenous children from
their families. Two months later, the
removal issue received further media
attention when the High Court of Australia handed down its decision in
Kruger
& Ors v The Commonwealth of Australia;
Bray & Ors v The
Commonwealth of Australia.
[3] The
cases concerned the constitutional validity of the
Aboriginals Ordinance
1918 (NT),
[4] which provided the legal
basis for the removal of Indigenous children from families and communities in
the Northern Territory. The
plaintiffs were unsuccessful.
This article
provides a brief case note on the
Kruger and
Bray cases; then
follows a comment on the question commonly asked by sections of the media: do
the
Kruger and
Bray decisions affect common law litigation in the
area?
[5]
II. KRUGER AND BRAY
The Ordinance under challenge appointed the Chief Protector of Aboriginals
as the legal guardian of every Aboriginal child in the
Northern Territory. The
Ordinance gave a discretion to the Chief Protector to undertake the care,
custody and control of any Aborigines.
Further, the Ordinance authorised the
Chief Protector to cause an Aborigine to be kept within the boundaries of any
reserve or Aboriginal
institution.
[6]
The plaintiffs were Aborigines from the Northern Territory, who had been
removed from their parents and families when they were young
children. They had
been detained in Aboriginal institutions or reserves. The removals had occurred
between 1925 and 1949 and the
last detention had ended in 1960.
The
plaintiffs claimed declaratory relief and damages against the Commonwealth for
being removed from their families and communities.
The plaintiffs challenged
the constitutional validity of ss 6, 7, 16 and 67 of the Ordinance, which
allowed Indigenous children
to be removed from the families and communities, and
were part of a legislative regime which subjugated Indigenous people in the
Northern Territory. The plaintiffs also sought a declaration of constitutional
invalidity of s 13(1) of the
Northern Territory (Administrative) Act 1910
(Cth), to the extent that it purported to authorise those impugned provisions of
the Ordinance.
The basis of the plaintiffs’ challenge was that the
removals infringed certain constitutional rights or freedoms. Those rights
or
freedoms were contained in paragraph 24 of the Amended Statement of
Claim.
[7] Justice Gaudron succinctly
summarised the plaintiffs’ arguments of invalidity as follows:
• the Ordinance was not a law for the government of the Northern
Territory and, thus, not authorised by
s 122 of the
Constitution;
• it exceeded the legislative power of the Commonwealth in that that
power, whether conferred by
s 122 or otherwise, does not extend to laws
destroying racial or ethnic groups, their language or culture or to laws
authorising genocide
and crimes against humanity;
• it purportedly
conferred judicial power contrary to the provisions of Chapter III of the
Constitution;
• it was contrary to an implied constitutional freedom from removal
and detention without due process of law; it was contrary
to an implied
constitutional right and/or guarantee of equality;
• it was contrary to an implied constitutional right to and/or
guarantee of freedom of movement and association;
• it was contrary to s 166 of the
Constitution.
[8]The plaintiffs
claimed that, by reason of the asserted constitutional invalidity of the
impugned provisions, they were entitled to
recover damages from the
Commonwealth. They argued that they were entitled to damages for causes of
action recognised by the common
law (tort of wrongful imprisonment and
deprivation of liberty) and for breach of their constitutional rights. The
plaintiffs sought
damages both with respect to the losses they had suffered in
personal, cultural, spiritual and financial terms and in terms of their
possible
entitlements to participate in land
claims.
[9]
III. THE DECISION
A. Section 122: The Power to Make Laws for the
Government of a Territory
Chief Justice Brennan and Toohey, Gaudron, Dawson and McHugh JJ all agreed
that the Ordinance is a ‘law for the government of
a territory’, and
that the plaintiffs argued the wrong test in this regard (the nexus test being
the relevant test, as opposed
to the proportionality test
asserted).
[10] Justice Gaudron
stated that although s 122 has a purposive element, that purposive element was
not an issue in the case.
[11]
Accordingly, the test of proportionality of the legislation had no application.
Thus, the relevant test in the case was whether
the legislation had sufficient
nexus with the Territory. As the law operated only on people, places and events
in the Northern Territory,
the nexus was satisfied.
B. Separation of Powers - Justified Power Only Able
to be Conferred on Chapter III Courts
Justices Dawson, McHugh, Toohey, Gaudron and Gummow all agreed that the
power to detain Aboriginal children in custody (for the purpose
of their
welfare) cannot be construed as an exclusively judicial power, and as such, the
Chapter III requirements of the
Constitution need not be complied
with.
[12] Justice Dawson (with whom
McHugh J agreed) and Gummow J also concluded that Chapter III does not restrict
the scope of
s 122 in any case.
[13]
C. Implied Guarantee to Due Process of Law
Justices Dawson and McHugh agreed that the
Constitution does not contain a
general guarantee of due process of law. Justice Dawson (with whom McHugh J
agreed) stated that, unlike the United
States
Constitution, the Commonwealth
Constitution does not seek to establish personal liberty and does not contain a
guarantee of individual rights. Thus, the
Constitution contains no general
guarantee of due process of law.
[14]
Justice Gaudron stated that as the power to detain in custody is not necessarily
a judicial power, the power was not subject to a
requirement of due
process.
[15]
D. Implied Guarantee of Legality
Chief Justice Brennan and Dawson, McHugh, Gaudron and Gummow JJ rejected
the notion of an implied guarantee of substantive legal equality
in the
Constitution.
[16] Justice Toohey,
relying on his earlier joint decision with Deane J in
Leeth v
Commonwealth,
[17] dissented on
this view. Justice Toohey stated that there is an implied principle of equality
of treatment in the
Constitution.
[18] However, Toohey J
held that it was not possible at this stage of the proceedings to determine
whether the Ordinance contravened
that
principle.
[19]
E. Implied Freedom of Movement and
Association
Justices Toohey and Gaudron recognised the existence of an implied freedom
of movement and association in the
Constitution, which also confined the
operation of
s 122.[20] Justice
Toohey commented that the question of whether the Ordinance contravened the
implied freedoms is a question of whether the
provisions were disproportionate
to what was reasonably necessary for the protection of the people to whom the
Ordinance applied.
However, Toohey J held that at this stage of the
proceedings, it was not possible to answer the
question.
[21] Likewise, Gaudron J
refrained from answering the question because it was first necessary to
determine the veracity of the Commonwealth’s
plea that the Ordinance was
enacted “for the purpose of the protection and preservation of persons of
the Aboriginal race”.
[22]
This plea was the subject of reserved question 3, which did not need to be
answered.
[23] Justice McHugh
recognised the existence of an implied freedom of movement and association in
the
Constitution, which were necessary to guarantee the implied right of
political communication in the
Constitution.
[24] However, McHugh J
held that:
... from the time when the 1918 Ordinance was enacted until it was repealed
in 1957, 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 ...
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 ...
For these reasons, nothing in the
Constitution implied that the plaintiffs
had any freedom or immunity from laws affecting their common law rights of
associations or travel during
the life of the 1918
Ordinance.
[25] Justices Dawson
and Gummow rejected the notion of an implied freedom of movement and
association,
[26] whilst Brennan CJ
did not need to decide the issue, as his Honour concluded that it would have no
effect either way.
[27] Chief
Justice Brennan held that the impugned provisions were not directed to impeding
protected communications. Accordingly, even
if there was an implied
constitutional right to freedom of movement and association, such a
constitutional requirement would not
have invalidated the impugned
provisions.
[28]
F. Genocide[29]
All six judges agreed that the Ordinance did not authorise
genocide.
[30] Chief Justice Brennan
held that none of the impugned provisions could be taken to have authorised acts
done for the purpose or with
the intention of causing harm. It was therefore
unnecessary to consider whether the Ordinance was inconsistent with an implied
constitutional
freedom or immunity from any law or executive act having the
effect of the destruction of a racial or ethnic
group.
[31]Justice Dawson (with
whom McHugh J agreed) stated that there was nothing in the Ordinance which
conferred authority to commit acts
of
genocide.
[32] Justice Dawson also
stated that consistent with the doctrine of parliamentary supremacy, there was
no constitutional restriction
on
s 122 of the
Constitution not to authorise acts
of genocide.
[33] He
commented:
... the legislative power of parliament to make laws for the government of
the territories is sovereign and, subject to the possibility
of any specific
limitation to be found elsewhere in the
Constitution, there is nothing which
places rights of any description beyond its
reach.
[34]Justice Toohey held
that there was nothing in the Ordinance, according to the ordinary principles of
construction, which would justify
a conclusion that it authorised acts
“with intent to destroy, in whole or in part the plaintiffs’ racial
group”.
[35] He added,
“it is necessary to keep in mind that it is however the validity of the
Ordinance, not any exercise of power under
the Ordinance, which is the subject
of these
proceedings”.
[36]Justice
Gaudron held that under the settled principles of statutory construction, the
Ordinance did not authorise acts of
genocide.
[37] However, in contrast
to Dawson J, Gaudron J was of the opinion that
s 122 of the
Constitution was
restricted by prohibition against “laws authorising acts of genocide as
defined in
Part II of the Genocide
Convention”.
[38]Justice
Gummow held the actions authorised by the Ordinance did not amount to genocide
as defined by the Genocide
Convention.
[39] Justice Gummow
agreed with Dawson J, that reliance by the plaintiffs on customary international
law as it related to genocide was
“misplaced”.
[40]
G. Freedom of Religion
Chief Justice Brennan held that
s 122 of the
Constitution restricted
s 116
(freedom to exercise any religion) but “none of the impugned laws on its
proper construction can be seen as law for prohibiting
the free exercise of a
religion”.
[41] Justice Toohey
left open the question of whether
s 116 restricted
s 122 but, in any case could
not find an intention to restrict the free exercise of religion in the
Ordinance.
[42] Justice Gummow held
that s 122 was subject to s 116,
[43]
but there was no breach by the
Ordinance.
[44]Justice Gaudron
held that s 122 should be read as being subject to s
116.
[45] However, her Honour did
not come to a conclusion as to whether or not there was a restriction of the
free exercise of religion in
the case in hand.
Justice Dawson (with whom
McHugh J agreed), held that the Territories are not parts of the Commonwealth,
but rather are parts annexed
to the Commonwealth and subordinate to it.
Accordingly, Chapter V of the
Constitution does not apply to the Territories.
Similarly,
s 116 of the
Constitution does not restrict the operation of
s
122.[46] Justice Dawson
added:
... that if I am wrong in this conclusion, I would [hold] ... that the 1918
Ordinance contains nothing which would enable it to be
said that it is a law for
prohibiting the free exercise of
religion.
[47]
H. Actions for Damages for Infringement of
Constitutional Rights
Chief Justice Brennan and Gaudron J found no basis upon which an action for
damages would arise upon the breach of a constitutional
right.
[48] Justice Toohey also
answered in the negative without giving
reasons,
[49] whilst Dawson, McHugh
and Gummow JJ decided there was no need to answer.
I. Limitation Periods
Justice Gaudron held that
s 79 of the
Judiciary Act 1903 (Cth)
should be construed as intended to apply to the High Court, notwithstanding that
the language of the section does not adequately
reflect the nature of the
jurisdiction or the manner of its exercise. Accordingly,
ss 64 and
79 of the
Judiciary Act 1903 (Cth) ‘pick up’ the provisions of the
Limitation Act 1981 (NT) and make them applicable to the
plaintiffs’ actions.
[50]
IV. COMMON LAW ACTIONS
In general, the negative outcome for the plaintiffs in
Kruger and
Bray, will have no significant effect for actions based on common law
rights. The
Kruger and
Bray cases involved challenges to the
constitutional validity of the Ordinance, not to any exercise of power under the
Ordinance. The
legal basis of the actions concerned the constitutional validity
of the impugned provisions, not “whether the actions complained
of were
authorised by those
provisions”.
[51]However,
common law actions that depend on establishing constitutional invalidation of
the removal and detention statutes in order
to argue wrongful imprisonment
and/or deprivation of liberty,
[52]
are significantly affected by the
Kruger and
Bray decisions. In
fact, solicitors for plaintiffs with actions currently before the Federal Court
in Darwin have amended their pleadings
to remove the
Kruger and
Bray constitutional arguments/wrongful imprisonment and deprivation of
liberty nexus.
The
Kruger and
Bray decisions reinforce the
notion that in any litigation including common law actions, it is the community
standards at the time of
the exercise of the legislative power and/or
‘welfare care’ under challenge that is relevant. Chief Justice
Brennan
and Dawson J commented in
Kruger and
Bray that one must
look to the standards of the time. Justice Dawson stated that:
... a shift in view upon the justice of morality of those measures taken
under an Ordinance which was repealed over 40 years ago does
not itself point to
the constitutional invalidity of that
legislation.
[53] Thus in any
common law action, it is the standards of the period under question that is the
relevant standard. Standards of child
care may have changed over the period of
the early 1900’s to the late 1960’s, where the systematic removal
policies and
practices were operating. Practices that may have been acceptable
forty years ago, may be totally unacceptable today. However,
it is what was
acceptable at the period under challenge which the court will focus on, not
today’s standards. Therefore, for
example, in an action for breach of
fiduciary duty, the courts will look to contemporary child care standards of the
relevant period
of the action before them. Although it should be noted that
evidence presented to the National Inquiry detailed incidents of excessive
and
violent punishment and sexual abuse, that could not have been accepted by any
contemporary standards this
century.
[54]
V. CONCLUSION
Whilst the decisions in Kruger and Bray were a severe blow to
the plaintiffs in those cases, its impact on future court actions should not be
overstated. Most common law
actions, for example, breaches of fiduciary duty,
negligence and statutory duties are not effected.
Indigenous litigants and
their legal representatives have many other problems upon which they can expend
their energies. Obstacles
presented by limitation statutes and evidentiary
concerns will prevent time being spent on contemplating what could have been if
Kruger and Bray were decided differently.
[*] Lecturer at Law at
Murdoch
University.[1] Herein
referred to as the National
Inquiry.[2] Human
Rights and Equal Opportunity Commission, Bringing Them Home: Report of the
National Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children from their
Families, 1997. Herein referred to as the National
Report.[3] [1997] HCA 27; 146 ALR 126.
Hereafter referred to as Kruger and
Bray.[4] Herein
referred to as the
Ordinance.[5] For
example, refer to “Judges Reject Claim Over Stolen Children”, The
Western Australian, 1 August
1997.[6] Upon acquiring
exclusive jurisdiction over the Northern Territory under the Northern
Territory Acceptance Act 1910 (Cth), the Commonwealth enacted the
Northern Territory (Administration) Act 1910 (Cth), relying on s 122 of
the Constitution. Section 13(1) of that Act empowered the Governor-General to
make Ordinances having the force of law in the Northern Territory. Under ss
13(2)
and (3) of the Act, Ordinances were required to be laid before the Houses
of Parliament, either of which had the power of disallowance.
It was pursuant
to s 13(1) of the Northern Territory (Administration) Act 1910 (Cth) that
the Governor-General made the
Ordinance.[7] Both
cases made the same
assertions.[8] Note 3
supra at
184-5.[9] The factual
issues in the actions before the High Court have not been tried. From an
earlier interlocutory hearing, Brennan CJ reserved
seven ‘questions of law
arising on the pleadings in each of the cases for the opinion of the Full
Court’ (Kruger v The Commonwealth (1995) 69 ALR 885). If the
plaintiffs failed on questions one and two, which they did, the other five
questions became unnecessary to answer. The first
two questions were in the
following terms:Q1. 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?Q2. 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?[10] Refer to
note 3 supra at 138 per Brennan CJ, at 147 per Dawson J, at 167 per
Toohey J, at 187 per Gaudron J and at 218 per Justice
McHugh.[11] Ibid
at
198.[12] Ibid
at 154 per Dawson J, at 172 per Toohey J, at 192-3 per Gaudron J, at 218 per
McHugh J and at 233 per Justice
Gummow.[13] Ibid
at 154 per Dawson J, at 218 per McHugh J and at 239-43 per Justice
Gummow.[14] Ibid
at 154 per Dawson J, at 218 per Justice
McHugh.[15] Ibid
at
193-4.[16] Ibid
at 141 per Brennan CJ, at 155-8 per Dawson J, at 195 per Gaudron J, at 218 per
McHugh J and at 227-8 per Justice
Gummow.[17] (1992)
174 CLR 455.[18] Note
3 supra at
179-82.[19] Ibid
at
182.[20] Ibid
at 175-8 per Toohey J and at 195-201 per Justice
Gaudron.[21] Ibid
at
179.[22] Ibid
at 201.[23] Reserved
question 3: If yes to question 1 or question 2, are any and which matters
pleaded in subparagraphs (d) and (c) 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?[24] Note
3 supra at
218.[25] Ibid
at
219.[26] Ibid
at 160 per Dawson J and at 230 per Justice
Gummow.[27] Ibid
at
141-2.[28] Ibid.[29] Pursuant
to Article II of the Convention on the Prevention and Punishment for the Crimes
of Genocide (‘Genocide Convention’),
genocide is defined inter alia
to mean: ... any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or
religious group,
as such: ... (d) Imposing measures,
intended to prevent births within the
group; (e) Forcible transferring of children of the
group to another
group.[30] Ibid
at 137 per Brennan CJ, at 161-2 per Dawson J, at 175 per Toohey J, at 190 per
Gaudron J, at 220 per McHugh J and at 230-2 per Justice
Gummow.[31] Ibid
at
137.[32] Ibid
at 161-2 per Dawson J and at 220 per Justice
McHugh.[33] Ibid
at
162-3.[34] Ibid
at
163.[35] Ibid
at
175.[36] Ibid
at
175.[37] Ibid
at
190.[38] Ibid,
compare with Dawon J at
162-3.[39] Ibid
at
232.[40] Ibid.[41] Ibid
at
138.[42] Ibid
at
173.[43] Ibid
at
238.[44] Ibid
at
233.[45] Ibid
at
202-3.[46] Ibid
at 152 per Dawon J and at 218 per Justice
McHugh.[47] Ibid
at
153.[48] Ibid
at 142 per Brennan CJ and at 205 per Justice
Gaudron.[49] Ibid
at
182.[50] Ibid
at
216-17.[51] Ibid
at 167 per Justice Dawson. Executive power granted by statute will be bound by
constitutional limitation and guarantees. See James v Cowan [1932] UKPCHCA 2; (1932) 47
CLR 386 at
396.[52] Such
arguments were made by the plaintiffs in Kruger and
Bray.[53] Note
3 supra at
147.[54] Refer to
note 2 supra, and T Buti, After the Removal, Aboriginal Legal
Service of Western Australia, (1996).
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