Kruger & Ors v Cwealth of Aust

In *Kruger & Ors v Commonwealth of Australia*, the applicants, who were Aboriginal people, sought to challenge the validity of certain provisions of the *Aboriginal and Torres Strait Islander Act 1989* (Cth) (the Act). The applicants contended that these provisions, which established the Aboriginal and Torres Strait Islander Commission (ATSIC) and its functions, were beyond the legislative power of the Commonwealth Parliament. They argued that the Act purported to legislate in relation to matters concerning the Aboriginal race, which they asserted was not a head of power available to the Commonwealth under the Australian Constitution.

The central legal issue before the High Court was whether the Commonwealth Parliament had the constitutional power to enact legislation concerning the Aboriginal race. Specifically, the Court was required to determine if the power to make laws with respect to "the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws" conferred by s 51(xxvi) of the Constitution extended to making laws for Aboriginal people. The applicants argued that the exclusion of "the aboriginal race in any State" from this head of power meant that the Commonwealth lacked the constitutional authority to legislate for them.

The High Court, in a majority decision, rejected the applicants' argument. The Court held that the exclusion of "the aboriginal race in any State" from s 51(xxvi) was a historical anomaly and that the power to legislate for the Aboriginal race was, in fact, conferred by the later amendment to the Constitution in 1967, which removed the words "other than the aboriginal race in any State". Therefore, the Commonwealth Parliament possessed the constitutional power to make laws for Aboriginal people, and the impugned provisions of the *Aboriginal and Torres Strait Islander Act 1989* were valid. The application was dismissed.