Alec Kurger & Ors V Commonwealth Of Australia Case Study

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Alec Kurger & Ors; George Ernest Bra & Ors v. Commonwealth of Australia In the case of Alec Kruger & Ors; George Ernest Bray & Ors v. Commonwealth of Australia, the plaintiffs sought, among other things, a declaration that the provisions of the 1918 Aboriginals Ordinance were invalid. They contended that the ordinance was contrary to an implied constitutional right to freedom from any law or executive act that, among other things, constituted or authorized the crime of genocide. In support of their case they cited several provisions contained within the Genocide Convention, which they argued were violated by the Aboriginals Ordinance. These included: 1. The removal and transfer of children of a racial or ethnic group in a manner which was calculated to bring…show more content…
After all, genocide was already forbidden under customary international law at the time that the Aboriginals Ordinance was enacted. The court, however, found difficulty here as well, this time based on problems inherent in the definition of genocide as a crime. According to the court, the transfer that the Aboriginals Ordinance authorized lacked the requisite mental element of "intent to destroy" the children's racial or ethnic group. Rather, the court held that the forcible transfers authorized by the Ordinance were intended "for the good and welfare" of the aboriginal population. The court based this interpretation on the conditions that prevailed at the time of the Ordinance's passage. At that time, the population of the aboriginals in the Northern Territory was rapidly decreasing due to disease and unsanitary conditions. The policies and measures adopted by the government of Australia were supposedly designed to rescue the aboriginal population from

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