Aboriginal Law Bulletin --- "Update: The Stolen Generations Case" [1995] AboriginalLawB 24; (1995) 3(73) Aboriginal Law Bulletin 25

• Update-The Stolen Generations Case
• Grounds Of Constitutional Invalidity
• Loss And Damages

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Update -

The Stolen Generations Case

Kruger & Ors v The Commonwealth of Australia

High Court Proceeding No. M21 of 1995

Members of the Stolen Generation are to bring a historic challenge under the Australian Constitution in the High Court. The challenge follows the Going Home Conference held in Darwin last year which saw the reunion of six hundred people, many of whom were forcibly removed from their families and homelands over a 40 year period. Six Northern Territory Aboriginal people, five removed as children from their families and the one the mother of a stolen child, will argue before the High Court that the legislation which "authorised" this to occur was constitutionally invalid. This legislation was the Northern Territory Aboriginals Ordinance 1918-1953 Act. Under this legislation Aboriginal people were subject to the despotic control of a Chief Protector. Under Section 7 of the Act the Protector was appointed as the "legal guardian of every aboriginal and of every half-caste child, notwithstanding that the child has a parent or other relative living, until the child attains the age of eighteen years." The Protector was entitled at any time to "undertake the care, custody or control of any aboriginal or half-caste". He could, on his discretion enter any premises and remove into his custody an " aboriginal or half-caste". (Section 6(1) of the Act.) The Protector under Section 16 of the Act also had the power to "cause any aboriginal or halfcaste to be kept within the boundaries of any reserve or aboriginal institution or to be removed to and kept within the boundaries of any reserve or aboriginal institution, or to be removed from one reserve or aboriginal institution to another reserve or aboriginal institution, and to be kept therein." This section also provided that "any Aboriginal or half caste who refuses to be removed or kept within the boundaries of any reserve or aboriginal institution when ordered by the Chief Protector, or resists removal, or who refuses to remain within or attempts to depart from any reserve or aboriginal institution to which he has been so removed, or within which he is being kept, shall be guilty of an offence against this Ordinance."

Grounds of Constitutional Invalidity

The above legislative provisions are the primary targets of the constitutional challenge. The Statement of Claim filed by the plaintiffs in the High Court on the 11 April indicates the following grounds for constitutionally invalidating the Aboriginals Ordinance Act and in particular ss6, 7 and 16:

• "it was contrary to an implied constitutional freedom of individuals within the Commonwealth from removal and subsequent detention away from the individual's parents, family or community, under laws of the Commonwealth or laws made or executive acts carried out pursuant to or under authority of laws of the Commonwealth, without due process of law in the exercise of the judicial power of the Commonwealth conferred in accordance with Ch III of the Constitution";
• "the legislation breached the requirement that judicial powers must be exercised exclusively by courts contemplated by the Commonwealth Constitution, and independently of legislative and executive powers, in that the legislation provided for the taking of decisionsand actions in respect of the removal and detention of children which could only be taken by constitutional courts";
• "it was contrary to a constitutional requirement that all people be treated equally under the law, in that it provided for discriminatory treatment of Aboriginal and "half-caste" children";
• "it infringed an implied constitutional freedom of movement and association in that it restricted, in particular, cultural association and movement by full and "half-caste" children within their family and community";
• "it was contrary to an implied constitution freedom from any law, purported law or executive act:

A. providing for or having the purpose, the effect or likely effect of the destruction in whole or in part of a racial or ethnic group, or the language and culture of such a group;
B. subjecting the children of a racial or ethnic group, solely by reason of their membership of that group to the legal disability of removal and detention away from the group; or C. constituting or authorising the crime against humanity of genocide by, inter alia, providing for, constituting or authorising:

(i) the removal and transfer of children of a racial or ethnic group in a manner, which was calculated to bring about the group's physical destruction in whole or in part;
(ii) actions which had the purpose, the effect or the likely effect of causing serious mental harm to members of a racial or ethnic group; and
(iii) the deliberate infliction on a racial or ethnic group of conditions of life calculated to bring about its physical destruction in whole or in part."

Loss and Damages

Damages are being sought by the plaintiffs both with respect to the losses they have suffered in personal, cultural, spiritual and familial terms and in terns of their possible entitlements to participate in land claims. It is hoped that success in the High Court challenge will allow other indigenous peoples unconstitutionally removed from their families and communities to run Federal Court compensation cases to redress the injustices of the past.

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