Week 2 – History and Structure
In Week 2, I learned about the history of the Australian Legal system, which also necessitated learning about the history of the British Legal system, which our legal system is based upon. I examined the importance of the concepts such as the Rule of law, and the Separation of Powers. I explored the doctrine of Terra Nullius, and how that affected the Indigenous Australians.
The British Legal system underwent many changes, which I remember some of from my school history studies – namely the Magna Carta and how it was a key change how the monarch ruled, and the hierarchy of power (monarch -> barons -> knights -> peasants). I didn’t realise that in conjunction with the monarch and ‘royal justice’ (and as a result of this, I suppose), that a system of Equity was being developed by the Court of Chancery. This is of significance today as Equity is one of the two aspects of modern day justice – the other being common law. After all the fighting between forces supporting parliament and various kings, the other important change in the British legal system was the introduction of the bill of rights – which recognised certain rights of citizens such as freedom from cruel and unusual punishments, freedom from fines and forfeitures without trial, and freedom of speech in parliament. It also established the Westminister system of parliament, which was a major shift in power.
In Australia, the initial form of law was legislature (law of the British Parliament) at the discretion of the Governor of the colony of New South Wales. Approximately 40 years after the colony was established, British Parliament passed the Australian Courts Act, which permitted Australia to use common law ‘as long as the circumstances of the colony would make it possible’ – which was an interesting decision as convicts did not have the right to appear in court. A major change in this would have been the Colonial Laws Validity Act of 1865, which allowed the colonies to make laws as long as they didn’t conflict with those created by the British Parliament. After the short space of a little more than 100 years, Australia’s legal landscape changed to have a three tier system of government (federal, state and local), made it possible for Federal parliament to override UK laws and finally separate from the British legal system in by making British Parliament unable to override State laws, and the highest court in Australia the High Court of Australia (instead of the Privy Council in London).
Not all changes in the legal system during this time period were good. The rights, values and customary law of Indigenous Australians were not acknowledge, and in fact were completely ignored and encroached on. The initial determination of ‘Terra Nullius’ when establishing the New South Wales colony meant that a treaty for land rights did not need to be negotiated, and in 1909, legislation was passed that gave legal authority for the children of Indigenous Australian to be removed from their families, without consent. However, Since the 1960s, there has been a reversal in this behaviour, beginning with legislature that acknowledges their right to vote, including them in the census, and recognising the native title rights of Indigenous Australians through reversing the doctrine of ‘Terra Nullius’. There has also been recognition of customary law, although this is contentious subject even today, and there was a formal apology for the ‘Stolen Generation’
Finally, with the establishment of an Australian Constitution, and the individual constitutions of the states, there is a formal separation of powers into three tiers – that of the Parliament, the Executive Government and the Judicature. The Parliament is responsible for enacting legislation, and the day to day administration of power, the Executive Government is responsible for the creation and amendment of legislation, and the Judicature is responsible for the interpretation of legislation. However, in Australia there is a crossover between the Parliament and the Executive Government, as members of parliament also make up the executive government. This highlights that fact that this is a separation of powers, not a separation of people.
The material for this week has been very interesting, and the focus on the history of the development of the legal system has made it easier to understand why some aspects of the system are how they are. And considering how the last remnant of the monarchs authority now rests with the Governor General (and the State Governors to a lesser extent), it is understandable why there have been calls for a change to a republic – as the current structure seems at odds which what we have been moving towards – which is a separation from the Commonwealth. Time will tell if that move is successful, and if it is a good idea in the first place.