Kruger v Commonwealth
Encyclopedia
Kruger v Commonwealth 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.
from the Northern Territory
, where the Aboriginals Ordinance 1918 (NT) authorised the removal of children from reserves.
, 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.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
1, also known as the Stolen Generation Case, is a High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
case that deals with any implied right to legal equality, and the section 116
Section 116 of the Australian Constitution
Section 116 of the Constitution of Australia precludes the Commonwealth of Australia from making laws for establishing any religion, imposing any religious observance, or prohibiting the free exercise of any religion...
prohibition on the establishment of a religion.
Background
The plaintiffs were indigenous AustraliansIndigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
from the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
, 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 CommonwealthLeeth v Commonwealth
Leeth v Commonwealth 174 CLR 455 is a High Court of Australia case that deals with the implied right of legal equality in the Australian Constitution.- Background :...
, 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
Melbourne Corporation v Commonwealth
Melbourne Corporation v Commonwealth 74 CLR 31; [1947] HCA 26 , also known as the Melbourne Corporation case or the State banking case, is an important case in Australian constitutional law...
(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.