Assignment Problem:
In Kruger v Commonwealth (1997) 190 CLR 1, while addressing the core issue as to whether or not actions authorized by the Aboriginals Ordinance Act (1918) (the 'Aboriginals Ordinance') fell within the description of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide (the 'Genocide Convention'), the High Court of Australia afforded less than sufficient weight to the interpretation and construction of the word 'care'.
Upon closely reading the majority judgments, as well as the minority (dissenting) judgments, do you agree or disagree with this statement? If so, why? If not, why not?
To answer this Assignment Question, begin by reading Kruger v Commonwealth (1997) 190 CLR 1 ("Kruger"), and then conduct an exercise of characterization and interpretation by addressing the following points in the order below:
Part 1: First, Characterization.
- How is the legislation in question - that is, the particular section or sub-section in issue in Kruger - characterised? (Note that the specific legislation in question is the text that contains the word "care".) To assess the characterisation of the legislation in question in terms of its constitutional validity, summarize the head of power of the Commonwealth Constitution that was considered relevant by the judges, any test/s for connection that were applied by the judges, any limits on power that were considered relevant by the judges when characterising the legislation in question, the decision in the case, and the practical effect/s on the plaintiffs.
- What leading decisions were applied in Kruger by the judges, and how?
Part 2: Second, Interpretation.
- How is the Constitution relevantly interpreted by the judges in Kruger in terms of their interpretive approaches? Put differently, how did the judges reach their judgments in terms of constitutional interpretive theory and doctrines?
- In light of this analysis, what do you consider to be the preferable interpretive approach? Did any of the judges in Kruger afford a proper construction to the meaning of the term "care"?
Reading and analyzing cases, understanding constitutional method, and constructing arguments, is a critical skill for a constitutional lawyer.
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