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Kruger V Commonwealth [1997] HCA 27; (1997) 190 CLR 1; (1997) 146 ALR 126; (1997) 71 ALJR 991 (31 July 1997)

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Kruger V Commonwealth [1997] HCA 27; (1997) 190 CLR 1; (1997) 146 ALR 126; (1997) 71 ALJR 991 (31 July 1997) Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1; (1997) 146 ALR 126; (1997) 71 ALJR 991 (31 July 1997) HIGH COURT OF AUSTRALIA BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ Matter No M21 of 1995 ALEC KRUGER & ORS PLAINTIFFS AND THE COMMONWEALTH OF AUSTRALIA DEFENDANT Matter No D5 of 1995 GEORGE ERNEST BRAY & ORS PLAINTIFFS AND THE COMMONWEALTH OF AUSTRALIA DEFENDANT 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 pleaded in subparagraphs (d) and (e) of paragraph 29 of the Amended Defence relevant to the existence, scope or operation at any material time of any and which of the rights, guarantees, immunities, freedoms and provisions?" A. Unnecessary to answer. "Q.4. If yes to question 2 - (a) on the facts pleaded in paragraphs 1 to 6 of the Amended Statement of Claim, are the Plaintiffs' claims (or any of them) for damages for breach of a constitutional right, guarantee, immunity, freedom or provision statute barred? (b) by what statute?" A. Unnecessary to answer. "Q.5. If yes to question 2, on the facts pleaded in - (a) paragraphs 1 to 6 of the Amended Statement of Claim, paragraph 36B(a) and (c) of the Amended Defence and paragraph 7 of the Amended Reply; (b) paragraphs 1 to 6 of the Amended Statement of Claim, paragraph 36B(c) of the Amended Defence and paragraphs 6 and 7 of the Amended Reply, are the Plaintiffs' claims (or any of them) for damages for breach of a constitutional right, guarantee, immunity, freedom or provision barred, or capable of being barred, by an implied constitutional time limitation requiring that the claims be instituted within a reasonable time?" A. Unnecessary to answer. "Q.6. If yes to question 2, on the facts pleaded in - (a) paragraphs 1 to 6 of the Amended Statement of Claim, paragraph 36B(a) and (c) of the Amended Defence and paragraph 7 of the Amended Reply; (b) paragraphs 1 to 6 of the Amended Statement of Claim, paragraph 36B(c) of the Amended Defence and paragraphs 6 and 7 of the Amended Reply, are the Plaintiffs' claims (or any of them) for declaratory relief and/or damages for breach of a constitutional right, guarantee, immunity, freedom or provision - (i) capable of being barred by laches or other analogous equitable principles? (ii) barred by laches or other analogous equitable principles?" A. Unnecessary to answer. "Q.7. On the facts pleaded in paragraphs 1 to 6 of the Amended Statement of Claim - (a) are the Plaintiffs' claims (or any of them) for damages for wrongful imprisonment and deprivation of liberty statute barred? (b) by what statute?" A. Unnecessary to answer. 2. The plaintiffs pay the defendant's costs. Matter No D5 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 4-9 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 26 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 26 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 pleaded in subparagraphs (d) and (e) of paragraph 26 of the Amended Defence relevant to the existence, scope or operation at any material time of any and which of the rights, guarantees, immunities, freedoms and provisions?" A. Unnecessary to answer. "Q.4. If yes to question 2 - (a) on the facts pleaded in paragraphs 1 to 3 of the Amended Statement of Claim, are the Plaintiffs' claims (or any of them) for damages for breach of a constitutional right, guarantee, immunity, freedom or provision statute barred? (b) by what statute?" A. Unnecessary to answer. "Q.5. If yes to question 2, on the facts pleaded in - (a) paragraphs 1 to 3 of the Amended Statement of Claim, paragraph 33B(a) and (c) of the Amended Defence and paragraph 7 of the Amended Reply; (b) paragraphs 1 to 3 of the Amended Statement of Claim, paragraph 33B(c) of the Amended Defence and paragraphs 6 and 7 of the Amended Reply, are the Plaintiffs' claims (or any of them) for damages for breach of a constitutional right, guarantee, immunity, freedom or provision barred, or capable of being barred, by an implied constitutional time limitation requiring that the claims be instituted within a reasonable time?" A. Unnecessary to answer. "Q.6. If yes to question 2, on the facts pleaded in - (a) paragraphs 1 to 3 of the Amended Statement of Claim, paragraph 33B(a) and (c) of the Amended Defence and paragraph 7 of the Amended Reply; (b) paragraphs 1 to 3 of the Amended Statement of Claim, paragraph 33B(c) of the Amended Defence and paragraphs 6 and 7 of the Amended Reply, are the Plaintiffs' claims (or any of them) for declaratory relief and/or damages for breach of a constitutional right, guarantee, immunity, freedom or provision - (i) capable of being barred by laches or other analogous equitable principles? (ii) barred by laches or other analogous equitable principles?" A. Unnecessary to answer. "Q.7. On the facts pleaded in paragraphs 1 to 3 of the Amended Statement of Claim - (a) are the Plaintiffs' claims (or any of them) for damages for wrongful imprisonment and deprivation of liberty statute barred? (b) by what statute?" A. Unnecessary to answer. 2. The plaintiffs pay the defendant's costs. 31 July 1997 FC 97/023 Representation in both matters: N H M Forsyth QC with R A Finkelstein QC for the plaintiffs (instructed by North Australian Aboriginal Legal Aid Service Inc) G Griffith QC with S J Gageler, M A Perry and C R Staker for the defendant (instructed by Australian Government Solicitor) Interveners: K Mason QC with L S Katz SC intervening on behalf of the Attorney-General for New South Wales (instructed by the Australian Government Solicitor) R J Meadows with R M Mitchell intervening on behalf of the Attorney-General for Western Australia (instructed by the Crown Solicitor for Western Australia) B M Selway QC with N A Manetta intervening on behalf of the Attorney-General for South Australia (instructed by the Crown Solicitor for South Australia) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Kruger & Ors v The Commonwealth of Australia Bray & Ors v The Commonwealth of Australia 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.
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