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Given the authoritarian beginnings of British government in Australia, which three key characteristics of Australia"s legal system most clearly marked the development by Federation of the rule of law, or the lack of it? Essay Example

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Australian Legal System 11

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Australian Legal System

Australian legal system is guided by the rule of law1. The rule of law ensures that all persons are subject to law and that there is fairness, transparency, equitability before the law, freedom from bias and right to be heard among others. The common law system is unique 2as it’s found in most former British countries. It’s adversarial as it depends on evidence and arguments presented by parties in the court. It’s developed from legislation and judicial decisions.

The legal system was inherited at the time of British settlement in the late 18th century, but profoundly influenced by the statute law of an active and social-democratic state3. As years passed, the various colonies within Australia in the run-up to the nineteenth century thought it wise to write down their own constitution that was eventually passed in the British Parliament as an Act of Parliament taking effect from January 1901. This paved way for the development of the Australian legal system. The Australian legal system makes laws in diverse ways namely; parliament’s statute laws, executive’s delegated legislation and courts legal interpretation using past rulings. At the heart of the Australian Legal System is the Australian constitution that established the federal system of government a replica of the English legal tradition.

Australia’s constitutional order

Australia’s constitutional order rests on a written Constitution, enacted in 1900 by the

British Parliament giving effect to a more-or-less democratically drafted Australian document. The key features of this constitutional order are that it is federal and parliamentary, with strong judicial review of structural features including the federal division of powers and the separation of powers. There are several key characteristics of Australian legal system that most clearly marked the development by Federation of the rule of law. This paper will be looking at three characteristics that mostly marked the development of rule of law.

Key Characteristics of the Australian Legal System

The place of the aboriginals

Though by 1840’s, there was organized aboriginal resistance for white settlements in Australia, the white settlement in Australia date back in the 18th century4. Diseases and warfare weakened the aborigines and this made the native policy to 5change from marginalized to protection. They were enclosed in stations where missionaries and government officials could supervise them.

The aboriginal community was segregated6 in the legal system and anything that surfaced in the legal system was hard to provide justice. They were seen as outsiders in any legal or constitutional responsibility7. For example, the copyright laws in Australia remained lenient to other traditions but stringent to the aboriginals. This led to the copyright violation of the aboriginal community traditions as the other populations illegally used their traditions and arts.

Aborigines were denied the right to vote. They were discriminated in the Australian legal system since the time of the original constitution. The original constitution barred the aborigines from voting in a racist way8 in any elections. In light of this, the aboriginal community felt left out in the Australian legal system as a result of this discrimination and subsequent isolation from governance matters9. However, 1967 came as a reprieve for the aboriginal society as the constitution was amended and further passed by a majority of aborigines paving the way for their democratic right to vote.

Australian legal system was biased10 in regard to the aboriginals as numerous prisoners in the galls were from that community. This raised eyebrows as to the effectiveness of the legal system.

“…..alarming overrepresentation of indigenous persons as defendants in Australian courts and as prisoners in galls’’ (Edwards 2004 p.76). In cases like R v Millar and Bevan11, which involved indigenous settler’s murder, white settlers were acquitted or pleaded self defence and later set free for lack of evidence12. Aborigines could not give evidence in courts. In the 1799 trial of R v Hewitt,13Thomas Hewitt was charged with the murder of an Indigenous Australian. The widow of the deceased wanted to give evidence, but Thomas was acquitted as the widow’s evidence was denied.

This illustrated human rights violations in the Australian legal system against the aboriginal community. For instance, it questioned as to whether the deeds committed by other individuals were better evils and crime as opposed to the aborigines. In light of this, several commissions were set up to conduct investigations into the matter and come out with conclusive recommendations. The commissions sought to understand the inter-relationship between traditional aboriginal law and the Australian legal system14.

The place of the aboriginals in the Australian legal system is vested upon their traditions. This is because their traditions contradict most of the set up laws that govern the Australian population. For example, the aboriginal customary law remained a great impediment for the legal system as it propelled some illegal acts against their people. In light of this, they inculcated punishments such as death for crimes committed against their traditions. On the other hand, the Australian legal community was bent on such rules.

Additionally, the place of the aborigines in the Australian legal system was motivated by the greed to inflict pain and was conducted by family and the community whereas in respect to the Australian legal system was conducted by people who were not known by the aboriginal community. This placed the aborigines in hot scales since the judges and magistrates would remained partial and thus pass sentences that were not congruent with human rights such as imprisonment of law defaulters for long periods in jail or else faces execution15. This entirely weakened the aborigines’ voice in the Australian legal system for a long period of time.

Several colonies which later became states of Australia finally eventually passed special statutes which enclosed the Aborigine in ‘protective’ regimes. In 1869, the colony of Victoria enacted a comprehensive code which helped put the Board for the Protection of Aborigines on a legal footing16

In Australia, the aboriginal relations with imperial Britain did not initially follow the pattern of other settlement colonies. This made a convergence to occur by the late nineteenth century. Aboriginal traditional politics17 were denied any standing in law.

Today, the Australian legal system recognizes that the law is above bound and should be applied freely without favor. The system is instrumental in shaping justice through the inclusion of interpreters in their proceedings18. This is in order to include the Australian natives who do not recognize the English language, as it’s heavily used in legal circles. In light of this, the Australian legal system puts into sharp focus the place of the aboriginals. As a result, justice applied becomes effective in respect to the International Convention on the Elimination of all forms of racial discrimination Article 519.

“..to prohibit and to eliminate racial discrimination in all forms and to guarantee the right of everyone, without distinction as to race, color or national or ethnic origin, to equality before the law” 20.

The rule of law is characteristic in many legal systems across the globe, but is evident in the Australian side to the extent that it recognizes the place of the aboriginals. This means that the aborigines were not discriminated against by the system as it aimed at serving them whole heartedly21. However, according to 22Kercher (1995:3), the Australian legal system prior to the nineteenth century provided room for slavery and brutality through physical and verbal conflicts. This is because the imperial law subjected the aboriginals to oppression to the extent that their land would be taken without compensation. This was a clear illustration that the place of the aboriginals in the Australian Legal system was flawed.

Representative government

The etiology of representative government in Australia dates back into the early eighteenth century in 1842. The minister for colonies in Britain saw it wise to devolve leadership into the people and made the major announcement23. In light of this, he invited colonial legislatures to draft the constitution to govern the land and also help in the setup of institutions that would henceforth ensure multidimensional development. The events took place simultaneously with New South Wales being the first to receive its constitution followed by Tasmania, Victoria and then South Australia.

The former colonies thus embraced self government. The term representative government refers to the ability bestowed on citizens to elect their rightful representatives to the law making organs of government. The Australian legal system that came to replace the English legal system adopted the parliamentary system in the running of affairs of governance and politics thus channeling the route for representative government. Representative government is a system of governance that enables the citizenry of a country to democratically elect their representative into political office. In light of this, the elected members converge at the parliament buildings to perform a number of functions including enactment of legislations, debate issues of public concern and also monitor expenditure of public money.

Enactment of legislations simply means the making of laws that eventually propel the wheel of the Australian legal system. Representative government is subdivided into several levels in the Australian legal system such as the federal government and state assembly.

The Australian legal system ensured the realization of a representative government by championing the adoption of the British constitution. For example, the eventual articulation of a federal government24 gave the leeway and opportunity for the citizens to demonstrate their democratic rights to elect their preferred leaders. This led to social, political and economic development in the country as opposed to kingly or queenly leadership that injures the development process.

“The Republic Advisory Committee acknowledges that Australia is a state in which sovereignty resides in its people, and in which all public offices, except that at the apex of the system, are filled by persons deriving authority directly or indirectly from the people’’ 25..

Moreover, representative government, a key characteristic of the Australian legal structure was geared towards a collective involvement of all citizens and authorities alike. For example, the elected officials into public offices were to make sure that the less fortunate members of the society were well taken care of and contradiction of the same would attract legal actions against the state. This was acrimoniously agreed upon during the drafting of the constitution.

Representative government ensures that the political class remains responsible keeping into its toes the senior officers such as the prime minister. This harmonizes politics and avoids disputes. For example, the representatives toil to ensure that they meet their pledges they made during campaigns for elective politics.

The place of women

Gender was and continues to be a bitter pill to swallow for women across the world26. This is as a result of male dominance in all spheres of influence including the legal systems, the Australian legal system not exceptional. In this regard, women representation was unheard of in the Australian legal system with countable women in senior ranks of the system. The Australian legal system27 christens itself within a patriarchic position. For this reason, many social, economic, political, religious and legal spheres of influence misrepresent the women voice thus propelling a male hegemonic ideology. Women’s right to vote in federal elections was included in the constitution of 190128.

Nevertheless, the progress of women in entering public office was slow. In 1995 women’s representation in local, state and federal government was around 20 percent29. Although women are more likely to spend time on religious activities than men, the majority of religious ministers are male. In addition, the Australian legal system has been complicit in the marginalization of Aboriginal women. The place of women in the Australian legal system started to flourish after the Australian leadership in 189530 gave women the opportunity to vote in the Australian elections. Previously, women were deprived off their democratic right to vote in any elections thus propelling the male hegemony that triggered a backdrop in the realization of the various problems faced by women.

Lack of women in both the political and legal administration made the male leaders to only progress dictatorial ideologies for their own benefit. In the wake of the nineteenth century the Commonwealth further asserted the strength of women by championing the Commonwealth Franchise Act that paved way for women to vie for elective posts in the federal parliament31. In light of this, this greatly acted as a milestone achievement in the women population as their problems neared solutions unlike in the past. As a matter of fact, Edith Cowan became the first woman to be elected to an Australian parliament in competitive politics. Over two decades ago, Australia ratified the United Nations Convention on the elimination of all forms of discrimination against women.

Women face obstacles in the Australian legal system as a result of lack of awareness

In light of this, the Australian legal system furthered this course and continued to oppress the women. For example, women representation was below average in the legal systems32. Moreover, the costs in legal system were very high thus many women could not afford to seek legal redress from the courts. This placed them at the very bottom of the Australian legal system.

In Australia, women have overcome both institutional and social barriers to struggle for equality of opportunity. Today the place of women in law has been felt as they have won equality, freedom and choice33. More women are educated and occupy formal employments. In the 2011, federal governments, 28% of the members are women. 34For the first time in parliamentary history, the Prime Minister is a woman.


The paper has structuralized the various key characteristics of the Australian legal systems pointing out their contributions to the current legal structure in the country. Although the Australian legal system has arguably progressed over the years since the publication of the first constitution, more needs to be done to breach the gap that results from lack of awareness. This, therefore that nobody is immune to law or else is above the law. In light of this, the legal system portrays a critical representation of a federal system whereby the various parliaments in the states made their own laws to govern their populous. The judiciary is the epitome of the Australian legal system thus is free from political, social or economic interference implying that it’s independent from manipulation. Principles such as procedural fairness, judicial precedent and the separation of powers are fundamental to Australia’s legal system35. The legal system is also influenced by other legal systems namely; the international law and customary law. International law represents other laws that are construed and developed at the international level. For example, international law dictates how countries relate with non citizens and vice versa. Customary law illustrates the various traditions of the Australian natives and that their beliefs are legally bound in the Australian legal system.

Moreover, the legal system is far from recognizing the various groups of people in the society such as the aborigines and women. In conclusion, further research and collective is paramount to the realization of a free and fair Australian legal system.

Further readings

Ainslie Lamb and John Littrich, Lawyers in Australia (2007).

Bruce Kercher, An Unruly Child : A history of law in Australia, (1995) pp. 3–21 (19p)

Cannon, Andrew. Lessons from the Australian constitution (2008).

Edwards William, An introduction to the Aboriginal societies (2004).

Galligan Brian. A federal republic: Australia’s constitutional system of government (1995).

Johnston Elliot, Rigney Daryle and Hinton Martin. Indigenous Australians and the law (2008).

Kercher Bruce. Debt, seduction and other disasters: The birth of civil law in convict New South Wales (1995).

Kurz-Milcke, Elke, and Gigerenzer, Gerd. Experts in science and society (2004).

Laster, Kathy, and Taylor, Veronica. Interpreters and the legal system (1994).

Laster, Kathy. Law as culture (2011).

Macintyre, Stuart. A concise history of Australia (2004).

SALTER BRENT ‘Aboriginal Subjects Of The Crown’

‘For Want of Evidence’: Initial Impressions of Indigenous Exchanges with the First Colonial Superior Courts of Australia

Cases cited

R v Hewit [(1799]

R v Millar and Bevan (1797) NSW Sel Cas (Kercher) 147)


John and Ainslie ‘Lawyers in Australia’ (2007).

Laster, Kathy. Law as culture (2011).

P.G. McHugh, Aboriginal Societies and the Common Law : A History of Sovereignty.

6 Kurz-Milcke and Gigerenzer(2004 p.89).

8 Cannon, Andrew. Lessons from the Australian constitution (2008).

10 Edwards An introduction to the Aboriginal societies(2004 p.76).

R v Millar and Bevan (1797) NSW Sel Cas (Kercher) 147: the first indigenous related superior court

criminal trial.

SALTER Brent ‘For Want of Evidence’: Initial Impressions of Indigenous Exchanges with the First

Colonial Superior Courts of Australia.

R v Hewit [(1799].

Bruce Kercher ‘Aboriginal Subjects Of The Crown’ in :, An Unruly Child : A history of law in Australia, (1995) pp. 3–21 (19p).

Laster, Kathy, and Taylor, Veronica. Interpreters and the legal system (1994 p. 74). (Most legal systems are guided by ratification of the United Nations convection).

Laster, Kathy. Law as culture (2011).

Macintyre, Stuart. A concise history of Australia (2004).

Galligan Brian. A federal republic: Australia’s constitutional system of government (1995).

26 Johnston Elliot, Rigney Daryle and Hinton Martin. Indigenous Australians and the law (2008).

dfat, Women—towards equality http://www.dfat.gov.au/facts/women.html.

Kercher Bruce. Debt, seduction and other disasters: The birth of civil law in convict New South Wales (1995).