Kruger v the Commonwealth

[1997] HCA 27

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ

ALEC KRUGER & ORS v THE COMMONWEALTH OF AUSTRALIA (Matter No M21 of 1995); GEORGE ERNEST BRAY & ORS v THE COMMONWEALTH OF AUSTRALIA (Matter No D5 of 1995)
Constitutional law - Limitation laws

(1997) 146 ALR 126

31 July 1997
Constitutional law - Limitation laws

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. Constitutional law—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. Constitutional law—Existence of implied constitutional principle of legal equality—Whether Ordinance is contrary to such principle. Constitutional law—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. Constitutional law—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. Constitutional law—Whether Ordinance is a law for prohibiting the free exercise of religion contrary to s 116—Whether s 122 is subject to s 116. Constitutional law—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). 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.

Orders

Order:
Matter No M21 of 1995

1. The questions reserved for the consideration of the Full Court be answered as follows:

"Q.1. 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?"

A. No.

"Q.2. 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?"

A. No.

"Q.3. If yes to question 1 or question 2, are any and which of the matters…