In Kruger v Commonwealth, decided in 1997, also known as the Stolen Generation Case, the High Court of Australia rejected a challenge to the validity of legislation applying in the Northern Territory between 1918 and 1957 which authorised the removal of Aboriginal children from their families.

The majority of the bench found that the Aboriginals Ordinance 1918 was beneficial in intent and had neither the purpose of genocide nor that of restricting the practice of religion.

[5] This policy of removing Indigenous children from their family continued when control of the Northern Territory was transferred from South Australia to the federal government.

[8] In 1997 the Human Rights and Equal Opportunity Commission published the Bringing Them Home report on its inquiry into the separation of Aboriginal and Torres Strait Islander children from their families.

For seven of the plaintiffs, Alec Kruger, Hilda Muir, Connie Cole, Peter Hansen, Kim Hill, George Ernest Bray, Janet Zita Wallace and Marjorie Foster, the claim was based on their removal from their families while they were children between 1925 and 1944.

[17] Authority for the second proposition came from Chu Kheng Lim v Minister for Immigration,[18] where Brennan CJ, Deane and Dawson JJ said "The involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.

Brennan CJ held that the territories were not part of the federal system that involved the distribution of powers between the Commonwealth and the States.[2]: p.

Toohey J held that the proposition that the separation of powers doctrine extended to the territories was very persuasive, however his Honour did not determine the question on that basis because "judged by the values and standards prevailing at the time" the Ordinance had a welfare purpose and thus were neither puniative nor the exercise of judicial power.[2]: p.

162 The plaintiffs sought remedies consistent with the dissenting judgements of Deane and Toohey JJ, and Gaudron J in a separate judgment in Leeth v Commonwealth,[19] However, in this case only Toohey J held there was a right of substantive equality; Gaudron J departed from her position in Leeth to support procedural equality only.

Per Dawson J, the due process afforded by the existence of Chapter III courts is of a "procedural rather than substantive nature".

Finally, even with the existence of Chapter III courts, it is not possible to declare a law invalid because it is substantively unequal.

[24]A majority of the High Court, Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ, found that the 1918 Ordinance required action to be taken in the best interests of the Aboriginal people and thus did not authorise genocide.

134  Gummow J similarly left open the possibility that section 116 prohibited the use of concealed means or circuitous devices, but that would have to be established by evidence before a law could be found to be invalid.[2]: p.

161 The High Court upheld the validity of the 1918 Ordinance but that removal could only occur if it was considered as being best interests of the Aboriginal child, "judged by the values and standards prevailing at the time".

Only one member of the Stolen Generations, Bruce Trevorrow in South Australia,[26] has obtained compensation as a result of litigation.