Kruger v Commonwealth

Kruger v Commonwealth - [1997] HCA 27 - HCA 1997 case summary — Zoe

[32]

The common law may discriminate between individuals by reference to relevant differences and distinctions, such as infancy or incapacity, or by reason of conduct which it proscribes, punishes or penalises. It may have failed adequately to acknowledge or address the fact that, in some circumstances, theoretical equality under the law sustains rather than alleviates the practical reality of social and economic inequality. Nonetheless, and putting to one side the position of the Crown and some past anomalies, notably, discriminatory treatment of women, the essential or underlying theoretical equality of all persons under the law and before the courts is and has been a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government. However, whilst the rule of law requires the law to be applied to all without reference to rank or status, the plain matter of fact is that the common law has never required as a necessary outcome the equal, or non-discriminatory, operation of laws. It is not possible, in my view, to dismiss the discriminatory treatment of women at common law or such matters as the attainder of felons [93] as "past anomalies". To do so is to treat the doctrines of the common law with selectivity. Moreover, the supremacy of parliament, which is itself a principle of the common law [94] , necessarily leaves the common law subject to alteration without reference to notions of equality. The common law thus provides no foundation for a doctrine of equality, at all events substantive equality as opposed to the kind of procedural equality envisaged by the rule of law. 1. Leeth (1992) 174 CLR 455 at 485-486. 2. See Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; see also Winterton, The Separation of Judicial Power as an Implied Bill of Rights in Lindell (ed), Future Directions in Australian Constitutional Law (1994) 185, at p 205 . 3. See Dixon, The Common Law as an Ultimate Constitutional Foundation, Jesting Pilate (1965) 203, at p 206 ; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 76-77.

[265]

The Constitution of the Commonwealth of Australia, 1st ed (1902), p 329. 2. See, eg, Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 24, per Barwick CJ; at 46, per Gibbs J; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 43, per Brennan J; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 139-140, per Mason CJ; at 182, per Dawson J; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 193, per Dawson J. 3. Notwithstanding that the Northern Territory Representation Act 1922 Cth provided for the election of a representative to the House of Representatives, it was not until 1968, when that Act was amended by s 4 of the Northern Territory Representation Act 1968 Cth, that "[t]he member representing the Northern Territory [was given] all the powers, immunities and privileges of a member representing an Electoral Division of a State and the representation of the Northern Territory [was to] be on the same terms as the representation of such an Electoral Division": see s 6 of the Northern Territory Representation Act 1922 Cth. There was no Senate representation at all for the Northern Territory prior to the commencement of the Senate (Representation of Territories) Act 1973 Cth. (Section 6 of the Northern Territory Representation Act 1922 Cth and the Senate (Representation of Territories) Act 1973 Cth were held to be constitutionally valid in Queensland v The Commonwealth (1977) 139 CLR 585.) The entitlement of the people of the Northern Territory to participate in federal elections is now regulated by ss 40-54 of the Commonwealth Electoral Act 1918 Cth. Self-government was granted to the Northern Territory by the Northern Territory (Self-Government) Act 1978 Cth. 4. Section 2(a) of the Constitution Alteration (Referendums) 1977 Cth altered s 128 by inserting the words "and Territory" in both places to which reference is made to the electors "in each State". 5. The final paragraph of s 128 of the Constitution, inserted by s 2(b) of the Constitution Alteration (Referendums) 1977 Cth is as follows: "In this section, "Territory" means any Territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives."

Parties

Applicant/Plaintiff:

Kruger

Respondent/Defendant:

Commonwealth

Cases Cited (144)

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh and Gummow JJ Kruger v Commonwealth (M21/1995) [1997] HCA 27

as exhaustively describing the federal judicature and its functions in reference only to the federal system of which the Territories do not form part. There appears to be no reason why the Parliament having plenary power under s 122 should not invest the High Court or any other court with appellate jurisdiction from the courts of the Territories. The legislative power in respect of the Territories is a disparate and non-federal matter. This is the accepted doctrine of the relationship between Ch III and s 122 [30] . As Kitto J said in Spratt v Hermes [31] : But it has been the doctrine of this Court for fifty years, consistently maintained notwithstanding criticism, that Ch III is directed to a limited topic and accordingly has a limited application. The doctrine arises from a consideration of the framework of the Constitution and from many indications, to be found by working through the Constitution Act (63 and 64 Vict c 12) and the Constitution itself, that the first five Chapters of the Constitution belong to a special universe of discourse, namely that of the creation and the working of a federation of States, with all the safeguards, inducements, checks and balances that had to be negotiated and carefully expressed in order to secure the assent of the peoples of the several Colonies, with their divers interests, sentiments, prejudices, ambitions and apprehensions, to unite in the federation. When Ch VI is reached, and it is found that s 122 gives the Parliament a general power to make laws for the government of any Territory surrendered by any State to and accepted by the Commonwealth, or of any Territory placed under the authority of the Commonwealth or otherwise acquired by it, a change to a fundamentally different topic is perceived. The change is from provisions for the self-government of the new federal polity to a provision for the government by that polity of any community which comes under its authority while not being "a part of the Commonwealth" [32] . It follows that the ground advanced by the plaintiffs in sub-par (i) for restricting the scope of s 122 fails. 1. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270. 2. (1957) 95 CLR 529 at 545; [1957] AC 288 at 320. 3. R v Bernasconi (1915) 19 CLR 629 at 637-638; Porter v The King; Ex parte Yee (1926) 37 CLR 432 at 440. 4. (1965) 114 CLR 226 at 250. 5. cf Harrison Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910), p 589.

(1920) 28 CLR 129

(1965) 113 CLR 54

(1947) 74 CLR 492

(1951) 82 CLR 188

(1995) 69 ALJR 885

(1981) 146 CLR 559

(1915) 19 CLR 629

(1965) 114 CLR 226

(1992) 177 CLR 248

(1969) 119 CLR 564

(1986) 161 CLR 1

(1976) 133 CLR 603

(1994) 181 CLR 548

(1975) 135 CLR 337

(1956) 94 CLR 254

(1957) 95 CLR 529

(1926) 37 CLR 432

(1992) 174 CLR 455

(1939) 62 CLR 339

(1996) 187 CLR 579

(1958) 99 CLR 132

(1971) 125 CLR 591

(1992) 177 CLR 106

(1988) 166 CLR 1

(1945) 71 CLR 29

(1913) 16 CLR 315

(1976) 138 CLR 492

(1965) 114 CLR 20

(1943) 67 CLR 116

(1979) 53 ALJR 403

(1975) 135 CLR 1

(1986) 160 CLR 171

(1992) 177 CLR 1

(1994) 182 CLR 104

(1994) 182 CLR 272

(1989) 166 CLR 518

(1992) 176 CLR 1

(1996) 189 CLR 51

(1947) 74 CLR 31

(1983) 158 CLR 1

(1982) 153 CLR 168

(1996) 186 CLR 140

(1978) 142 CLR 583

(1997) 189 CLR 520

(1912) 16 CLR 99

(1958) 101 CLR 536

(1995) 183 CLR 273

(1945) 70 CLR 60

(1996) 63 FCR 450

(1959) 100 CLR 664

(1951) 83 CLR 1

(1945) 72 CLR 37

(1988) 165 CLR 360

(1945) 70 CLR 1

(1976) 135 CLR 110

(1986) 161 CLR 556

(1994) 182 CLR 211

(1993) 177 CLR 541

(1995) 185 CLR 307

(1989) 168 CLR 461

(1944) 69 CLR 457

(1948) 76 CLR 1

(1957) 99 CLR 575

(1989) 166 CLR 161

(1982) 150 CLR 169

(1986) 161 CLR 376

(1908) 7 CLR 277

(1925) 37 CLR 36

(1983) 152 CLR 281

(1990) 169 CLR 625

(1990) 171 CLR 1

(1991) 172 CLR 319

(1994) 179 CLR 427

(1964) 113 CLR 207

(1908) 6 CLR 309

(1983) 153 CLR 297

(1977) 139 CLR 585

(1929) 42 CLR 582

(1937) 56 CLR 657

(1947) 74 CLR 1

(1971) 122 CLR 353

(1985) 159 CLR 192

(1987) 163 CLR 329

(1996) 189 CLR 1

(1984) 155 CLR 193

(1993) 176 CLR 480

(1994) 179 CLR 155

(1994) 179 CLR 297

(1987) 162 CLR 514

(1966) 117 CLR 118

(1966) 117 CLR 185

(1962) 108 CLR 177

(1987) 164 CLR 1

(1971) 124 CLR 621

(1971) 17 FLR 141

(1995) 64 SASR 551

(1912) 15 CLR 366

(1973) 129 CLR 65

(1967) 116 CLR 353

(1937) 57 CLR 514

(1988) 169 CLR 41

(1997) 71 ALJR 1102

(1977) 139 CLR 362

(1929) 42 CLR 91

(1958) 99 CLR 521

(1964) 110 CLR 162

(1982) 154 CLR 318

(1984) 59 ALJR 511

(1991) 174 CLR 1

(1958) 100 CLR 32

(1965) 112 CLR 295

(1995) 184 CLR 95

(1953) 88 CLR 168

(1977) 139 CLR 527

(1984) 156 CLR 532

(1947) 75 CLR 1

(1952) 85 CLR 545

(1932) 47 CLR 274

(1937) 58 CLR 146

(1996) 185 CLR 595

(1985) 157 CLR 290

(1983) 154 CLR 120

(1990) 169 CLR 436

(1996) 89 CLR 51

(1978) 138 CLR 276

(1917) 23 CLR 482

(1970) 123 CLR 89

(1970) 125 CLR 93

(1975) 132 CLR 164

(1991) 172 CLR 501

(1937) 58 CLR 528

(1995) 184 CLR 453

(1983) 151 CLR 575

(1963) 110 CLR 321

(1954) 90 CLR 652

(1911) 12 CLR 667

(1991) 172 CLR 84

(1905) 2 CLR 315

(1991) 173 CLR 194

(1975) 134 CLR 298

(1931) 46 CLR 73

(1995) 183 CLR 373

At a glance

Court

Decision date

Before

Source

Judgment (621 paragraphs)

Parties

Cases Cited (144)