Kennedy, Lachlan; Nance, Deborah --- "Stolen Generations: the Kruger Action" [1996] AboriginalLawB 4; (1996) 3(79) Aboriginal Law Bulletin 11

Stolen Generations: The Kruger Action

by Lachlan Kennedy and Deborah Nance

On 11 April 1995, a small group of Indigenous people began actions in the High Court against the Commonwealth (`the Kruger action').[1] They allege that Commonwealth officials in the Northern Territory removed them from their parents in their early childhood or that their children were removed. These events are alleged to have taken place between 1927 and 1957, during the period of Commonwealth administration of the Northern Territory.

There has been no judicial determination of the facts alleged in this action. (The High Court heard argument on the issue during the week commencing 12 February 1996 - see `Recent Happenings'.) Whether it will proceed to a determination of the facts depends on the High Court's consideration of the validity of the legal basis of the plaintiffs' action. If the plaintiffs do have a legal basis for their action, the case will probably be referred to the Federal Court for a determination of facts on the basis of the High Court's decision on the applicable law.

The Kruger action is significant both for the legal principles that will be considered, and because of the re-examination of the child removal policies that may occur.[2] Both these aspects of the action have the potential to influence the debate about Constitutional reform.

Background

From 1918, two Ordinances regulated the lives of Aboriginal people in the Northern Territory - the Aboriginals Ordinance 1918 (NT) (`the Ordinance'), and the Welfare Ordinance 1953 (NT) (`the Welfare Ordinance') which repealed and replaced it. Neither now exist but both were complex in operation. They regulated many aspects of the lives of Indigenous people in an apparent attempt to protect them from abuses by non-Indigenous people. Segregation and regulation of inter-racial contact were the methods used. An issue for inquiries in the field will be whether these policies were really intended to physically protect Indigenous people from abuses by non-Indigenous people, or were based on notions of racial hierarchies and designed to protect the `racial integrity' of the non-Indigenous population.

Evidence for the need for physical protection can be demonstrated by the well-documented[3] abuses that occurred as the pastoral industry made inroads into Aboriginal land in northern Australia earlier this century. However, other values are apparent in the comments of some of the political figures and bureaucrats of the time. The following paragraphs provide a brief sketch of the scheme that was in place.

The Ordinance conferred on the administration of the Northern Territory general responsibility for the physical welfare of Aboriginal people.[4] It was the duty of the Chief Protector to provide when possible for the custody, maintenance and education of Aboriginal children. To this end, it enabled the administration of the Northern Territory to declare `degrees' of `Aboriginality' and hence regulate the amount of control to which an Aboriginal person was subject. The Ordinance covered both `Aboriginal people' and `half castes'. The Chief Protector[5] had the power to decide the degree of a person's Aboriginality. After 1936, the Chief Protector could declare any person not to be a `half caste' for the purposes of the Ordinance, whereupon its definitions of `Aboriginal' and `half caste' ceased to apply to them. The names of such persons had to be Gazetted and such a declaration could be reversed.[6] This was the only way `half caste' people could eventually (but not necessarily permanently) escape the operation of the Ordinance.

The provisions of the Ordinance segregated the Aboriginal from non-Aboriginal population in the Territory and restricted inter-racial contact, especially inter-racial sexual contact. Hence, restrictions were placed on Aboriginal women in particular. The Ordinance, which prohibited the marriage of female Aborigines without the authorisation of a Protector, in turn authorised the Administrator to approve their marriages.[7] Sexual contact between non-Aboriginal men and `Aboriginal or half caste' women to whom they were not married was restricted.[8]

There were other restrictions placed on Aboriginal people. `Prohibited areas' were established to which Aborigines were allowed only limited access.[9] Aborigines and `half castes' could be kept within reserve boundaries or moved to or between reserves.[10] Aborigines employed in certain declared `Town Districts' were required to live on the premises of their employers and were subject to a night-time curfew.

The Chief Protector was the legal guardian of every `Aboriginal and half caste' child under 18 years whether or not the child had parents living.[11] The power to make regulations under the Ordinance provided for regulations to be made which would enable any `Aboriginal or half caste' to be sent to or detained in an Aboriginal institution or an Industrial School, and under this power a regulation was made in 1918 to enable Protectors `at their discretion' to forward any `Aboriginal or half caste' children to the nearest Aboriginal institution or school, and report the reason for such action to the Chief Protector.[12]

Even prior to its replacement by the Welfare Ordinance in 1953, it would appear that at least some contemporaries were aware that the policy underpinning the Ordinance may not be seen to sit well with developing human rights notions. In 1949, the Administrator of the Northern Territory wrote that there are `certain restrictions which must remain imposed on Aborigines even though they are at variance with the complete ideals of the Universal Declaration of Human Rights'.[13]

While the Welfare Ordinance, which replaced the Ordinance in 1953,[14] was not expressed to apply only to Aboriginal people, that was virtually its only practical operation. This was not lost on the High Court, which noted that `the legislation took the place of prior legislation [the Ordinance] under which a large body of aboriginals had a particular status analogous to that which is given here... the power [to give such similar status] is almost confined in its application to aboriginals ...'.[15]

The Welfare Ordinance enabled the Administrator, by notice in the Gazette, to declare a person to be a `ward'. The covert racial classification still underpinning the Welfare Ordinance was evident in the criteria used to decide `ward' status. A person could be declared a ward if the person needed special care and assistance by reason of their manner of living, inability without assistance to adequately manage their own affairs, their standard of social habit and behaviour, or their personal associations.[16] But a person could not be declared a ward if they were entitled to vote in the Northern Territory. Thus `ward' was almost a code word for `Aborigine'. At least one declaration of over 15,000 people was made under the legislation. This whole mechanism led the High Court to observe that while the purpose of the legislation was claimed to be `beneficial and not adverse' it was easy to understand that a person `regarded as a ward might not so view the matter'.[17]

While the policy of `protection by control' embodied in the Ordinance was replaced by one of `assimilation', some of the restrictive provisions were nevertheless retained. Restrictions on the lives and activities of Aboriginal people and on inter-racial contact continued. Once declared to be a ward a person could be taken into custody by the Director of Welfare, or removed to, kept in or moved between reserves or institutions.[18] `Prohibited areas' still existed,[19] it was an offence for a person not a ward or the relative of the ward to live with a ward, the Director had the power to order a ward to cease living with another ward, and restrictions on inter-racial sexual contact continued.[20]

It was in the context of this legislation that the child removals took place.

The plaintiffs' arguments

The plaintiffs in the Kruger action are seeking recognition of implied Constitutional rights to:

• Freedom or immunity from removal without due process of law in the exercise of the judicial power of the Commonwealth.
• Equality before the law.
• Freedom of movement and association.
• Freedom from laws authorising genocide, or having the effect of the destruction in whole or in part, of a racial or ethnic group.

They are seeking damages under two claimed rights of action. One is that the removals were in breach of these claimed Constitutional rights. The second is that, if the ordinances were invalid, the removals and detention constituted wrongful imprisonment.

A hurdle for the Kruger action plaintiffs is establishing that there is a right of action in damages for loss or damage arising out of a breach of the Constitution. If there is, the Commonwealth argues that any Constitutional right of action based on implied rights is itself subject to an implied Constitutional time limitation requiring that the claim be instituted within a reasonable time. In relation to the claim for wrongful imprisonment, the Commonwealth argues that it is barred through lapse of time by the Limitation Act 1981 (NT).

The laws in question were made pursuant to the Commonwealth's Constitutional power in relation to Territories (s122 of the Constitution). The Commonwealth denies that s122 is restricted by any of the implied Constitutional freedoms, and also that it is not subject to the separation of powers doctrine implied from Chapter III of the Constitution, that judicial power is separate from the executive and legislative powers.

Another of the Commonwealth's defences is that in any case the Ordinance was not contrary to these freedoms in that it was enacted for `the protection and preservation of persons of the Aboriginal race'. Whether this is the case could only be determined after a substantial factual inquiry. Any inquiry in this area will be a confronting experience for non-Indigenous Australians who have collectively forgotten about this aspect of Australian history.

The Commonwealth is also arguing that the Constitutional validity of the Ordinance must be considered by reference to standards and perceptions prevailing at the time of its enactment, and not by reference to contemporary standards. While some human rights of the sort being relied upon in this action were well known at the time of the enactment of the Ordinances, many important human rights were only authoritatively articulated in the period after the second world war, when the international human rights conventions were prepared. In fact these conventions were themselves partly the reason for undoing in the 1950s many of the racist policies of the 1920s and 1930s.

The recognition of any of the suggested implied rights would be a significant matter for Commonwealth and State Governments. No doubt there are other groups within the community who were dealt with by the parliaments of the day in a manner that was in breach of such principles. A successful outcome for the plaintiffs in this case will have effects far beyond the plaintiffs themselves.

If as a result of this action the High Court finds some implied rights, we can expect a critical debate about whether it is appropriate for human rights to be developed by the High Court through implications drawn from the Constitution. If, on the other hand, the Kruger action fails for lack of any legal basis, then the injustice of the removals will still need to be redressed. The Federal Government will have an opportunity to do this when the Human Rights and Equal Opportunity Commission inquiry into the lost generation reports.

Inevitably, the perception of non-Indigenous people that Australia has always been a place of the `fair go' will be seriously challenged by these proceedings or by the HREOC inquiry. If the current generation of non-Indigenous Australians is prepared to take responsibility for this history, then the spirit of reconciliation may support Constitutional recognition of prior Indigenous occupation of Australia, and perhaps a Constitutional Bill of Rights.

---

[1] Kruger & Ors v The Commonwealth, High Court, M21 of 1995, Bray & Ors v The Commonwealth, D5 of 1995.

[2] If the plaintiffs' argument in the Kruger action fails entirely, it will not reach the stage where this re-examination will take place. However, the recently commenced inquiry by the Human Rights and Equal Opportunity Commissioner into these policies will also cover the factual issues, and in relation to all Australian jurisdictions, not just the Northern Territory.

[3] See, for examples the Report of the 1905 Western Australian Royal Commission on the Condition of the Natives by Commissioner Walter Roth, or the Report of the 1935 Western Australian Royal Commission on the Treatment of Aborigines by H D Moseley.

[4] The Ordinance and the Welfare Ordinance used terms that are offensive and inacceptable, particularly in their juxtaposition of `Aboriginal' and `half caste'. Unfortunately, it is not possible to discuss either Ordinance without recourse to these terms, since any attempt to do so would make the account confusing and inaccurate, and possibly engender suspicion that the writers are trying to gloss over unpleasant facts historical facts.

[5] Section 4.

[6] Section 3A.

[7] Section 45.

[8] Section 53.

[9] Section 11.

[10] Sections 15 and 16.

[11] Section 7.

[12] Section 67 and Regulation 3 (1918) and Regulation 6 (1933).

[13] Australian Archives No. AA ACT: CRS F1 1943/24.

[14] Although it did not commence operation until 1957.

[15] Namatjira v Raabe [1959] HCA 13; (1959) 100 CLR 664 at 669.

[16] Section 14.

[17] Namatjira v Raabe [1959] HCA 13; (1959) 100 CLR 664 at 669.

[18] Section 17.

[19] Section 6.

[20] Sections 61, 62 and 64.