Seminar 4: The Australian Legal System

Part A: An exploration of the importance of Australian legal history

Please complete the Quiz below before attending the Week 4 Seminar. We will check the
answers together in class.

1. What is a feudal system of property ownership?

a. A system of property ownership where the monarch was the ultimate owner of all
land in the kingdom.
the monarch owned all the land but allowed favored individuals the use of it, as
tenants, in exchange for service. The tenancies were called "feuds", "fees", or "fiefs",
and the tenants would further pass on rights down to others in their retinue.

b. All land belonged equally to the monarch, barons, knights and peasants
c. The monarch granted possession of land to barons, knights and peasants for lifetime
enjoyment.
d. A system of property ownership that existed in Britain and its colonies

2. What is the 1689 Bill of Rights?

a. It contains certain rights granted to British citizens including the freedom of speech in
parliament
b. A document prepared by Oliver Cromwell
c. It contains the absolute right of the monarch

 a landmark Act in the constitutional law of England that sets out certain basic
civil rights and clarifies who would be next to inherit the Crown.
d. A treaty between Britain and Australia

3. How did the Judicature Acts of 1873 address practical and procedural difficulties
created by common law and equity?
 a. By ensuring the administration of both common law and equity.
through reforms to the law of evidence and pleadings and a greater control over jury verdicts judges
fine-tuned their decision-making in the light of a fuller knowledge of the factual matrix

b. By abolishing two separate court systems and establishing a High Court of Justice.
c. By creating separate rules and principles.
d. By declaring common law rule and rule of equity one and the same.

4. The remedy available at common law is the remedy of damages while equitable
remedies include?
a. Monetary compensation and injunction
b. Monetary compensation only
c. Injunction and specific performance
d. Specific performance and monetary compensation

5. Why is Magna Carta an important document?

a. It was a victory for the voice of the people, the beginning of a system based on the rule
of law instead of the divine right of kings

Magna Carta came to be used throughout English history in both symbol and
substance for the rule of law and the advancement of liberty.
b. It highlights the importance of the divine right of kings
c. It highlights the importance of the divine right of kings and certain rights of people
d. Because it was signed by King John

6. What is the significance of declaring Australia as terra nullius at the time of the first
British colony?
a. English laws were introduced to Australia
b. Australia became a British colony
c. Australia was deemed to have been settled by Britain thereby considering it a territory
previously uninhabited
d. New South Wales was declared as the first British colony in Australia

7. What does the doctrine of reception mean?

a. The application of British laws to the resolution of colonial legal disputes and the
disregard to Aboriginal customary law
b. The commencement of the British colonial rule in New South Wales

'Doctrine of reception' in common law. In common law,

the doctrine of reception (properly, reception of the common law of England
in a colony) refers to the process in which the English law becomes applicable
to a British Crown Colony, protectorate, or protected state.
c. The lack of reception received from Indigenous people
d. The lack of regard of the Indigenous legal system

8. The Colonial Laws Validity Act (1865) clearly stated?

a. Acts of the British parliament applied to Australia
b. Colonial parliaments were not free to make laws
c. Colonial parliaments did not have any power to amend their constitutions
d. Acts of the British parliament applied only if expressly stated to apply to Australia

The Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63) is an Act of the

Parliament of the United Kingdom. Its long title is "An Act to remove Doubts
as to the Validity of Colonial Laws". The purpose of the Act was to remove any
apparent inconsistency between local (colonial) and British ("imperial")
legislation.
9. An Australian politician often referred to as the ‘Father of Federation’?
a. Tony Abbot
b. Sir Henry Parkes
c. Sir Winston Churchill
d. Kevin Rudd
 10. When was the Commonwealth of Australia Constitution Act (Imp) passed?
a. 1 January 1901
b. 4 July 1776
c. 26 January 1900
d. 5 July 1900

11. Which of the following best explains the importance of Australia coming into
existence on 1 January 1901?
a. Each State retained their own individual constitutions, legislatures and court systems
b. Federal government was given power to make laws of common interest to all
Australians
c. Australia became a Federation of six States
d. All of the options are correct
 12. What is the effect of the Statue of Westminster 1931?
a. The grant of full legislative competence to the Australian Federal parliament and if
necessary to override any inconsistent United Kingdom legislation
b. It prevented the Australian Federal parliament from overriding the Constitution Act
c. Abolition of appeals from the High Court of Australia to the Privy Council
d. Abolition of appeals from the state Supreme Courts to the Privy Council

13. The Australian Acts 1986 severed all judicial ties between Britain and Australia
resulting in?
a. The introduction of the Court of Appeal as the highest court of Australia
b. The introduction of the Privy Council as the highest court of Australia
c. The abolition of the final right to appeal from an Australian court to the Privy Council
d. The abolition of the right to appeal to the High Court of Australia

14. What is the significance of Mabo v Queensland (No 2) (1992) 175 CLR 1?
a. For the first time, the High Court formally declared that the declaration of terra nullius
at
the time of British settlement was wrong
b. It allowed other Indigenous Australians a right to have traditional title to their land
recognised formally
c. That the Meriam people had traditional title to the Murray Islands
d. All of the options are correct

15. Why is the Native Title Act 1993 (Cth) important?

a. It gives the Nunga people the right to their traditional title to land in South Australia
b. The recognition at common law of native title in Australia by establishing a scheme for
determining the existence of ‘native title’ on certain land
c. The abolition of British colonial laws
d. The declaration of Indigenous Australians as owners of all land in Australia
The Native Title Act 1993 (Cth) (NTA) is a law passed by the Australian
Parliament that recognises the rights and interests of Aboriginal and Torres
Strait Islander people in land and waters according to their traditional laws
and customs. For an interactive timeline please click here.

Part B: Aboriginal and Torres Strait Islander (ATSI) Peoples and Australian Public
Law

In discharging its duty to declare the common law of Australia, this [High] Court is not free to
adopt rules that accord with contemporary notions of justice and human rights if their adoption
would fracture the skeleton of principle which gives the body of our law its shape and internal
consistency. Australian law is not only the historical successor of, but is an organic development
from, the law of England. Although our law is the prisoner of its history, it is not now bound by
decisions of courts in the hierarchy of an Empire then concerned with the development of its
colonies. It is not immaterial to the resolution of the present problem that, since the   Australia
Act 1986  (Cth) came into operation, the law of this country is entirely free of Imperial control.
The law which governs Australia is Australian law. 1

Mabo [No 2] v Queensland (1992) 175 CLR 1, 29 (Brennan J).

Group Discussion
What are the key points made by Justice Brennan in the extract from his judgment in
Mabo set out above?

- courts are not free to approve rules which align with modern ideas of fairness, if the
new rules break the basic value and consistency of the Australian law
- the law of England is not only the history of this country but also the organic
development
- since the act of 1986, the country is free of colonial control

What changed in Mabo?

Mabo and the island groups won the ownership to the land, their Customory law was
recognized. Hence Australia was not terra nullius

The court asked to prove there was still a connection between the land and the islander
groups. They were not able to show the connection

1 This is a quote from the decision of Brennan J in Mabo [No 2] v Queensland. Although it is extracted text from the
decision we do not use ‘quotation marks’ as the quote is a long quote, greater than 3 lines in length. The general
rule is that these longer quotes are indented, without quotation marks, and set out in a size smaller font than the
main text. See AGLC,3d Rule 1.5.1.
 If the crown has already been using the land ( such as build a building) the land is the
ownership of the crown.

Do you believe that this demonstrates a comprehensive knowledge of legal history is

important to the study and practice of the law? Discuss.

- yes, the  legal history allows us to understand modern-day law.

Australia as terra nullius , the English did not recognize a legal system, hence a land of
nobody.
PRIOR to the tutorial please read the following passage and consider the embedded questions.

The ATSI Peoples

There is no comprehensive legal definition of who is an ATSI person. Why is this so?

In considering the diversity of Indigenous peoples, an official definition of ‘indigenous’ has not been adopted by any
United Nations (UN) system or body. According to the UN the most fruitful approach is to identify rather than define
Indigenous peoples. This is based on the fundamenta

What does the law say about it ?

Evidence

Aboriginal people were recognized as a dying

Compensation

Section 127 -
Section 51(xxiv) discrimination act
Section 25 – voting rights

Do you think this is a real problem for regulating the rights and protections to be afforded ATSIC
peoples?

Is the identification of laws that pertain only to ATSIC peoples discriminatory? Is it otherwise
lawful?
The struggle for Aboriginal and Torres Strait Islander rights

The historical legacy

ATSI peoples have fought the actions and policies of the settlers and governments from the
arrival of the First Fleet. The 19th century proceeded under the abhorrent assumption that
ATSI peoples were a 'dying race', (why do you think this was so?] but by the late 19th century
and into the 20th century the predicted demise of ATSI peoples had not occurred, and
governments began implementing policies of assimilation that aimed to separate ATSI children
from their traditional culture and homes. [what prompted these assimilation policies?] These
policies were accompanied by various laws that expressly discriminated against ATSI peoples,
including denying ATSI peoples the right to vote, denying fair or any payment for work and
providing only limited legal protection of traditional lands.

ATSI claims today

 The most fundamental claim made by ATSI peoples against the Australian state is the
freedom to make their own decisions about their lives (self-determination), and the
freedom to negotiate the intersection of their own laws and the laws of the state (self-
government).
 ATSI laws and cultures are deeply embedded in tribal territories or 'country'. Land is
also an economic resource and a basis upon which to build sustainable communities. As
such, rights to land are integrally connected to the aspiration of self-government. ATSI
have repeatedly contested their rights to land in Australian courts and were regularly
denied recognition of their rights until the Mabo (1992) 175 CLR 1 decision in 1992
where the High Court recognised a new form of ATSI land right, known as 'native title'.
 ATSI cultural heritage includes both objects and areas of significance to ATSI peoples for
traditional cultural reasons. Historical dispossession of land meant it was difficult to
maintain cultural practices that relied on the land for their expression. Limited statutory
protections for cultural heritage have been enacted at the State and national level.
 For many ATSI peoples customary law continues to provide the framework for their
lives. Recognition of customary law has remained controversial, particularly when
customary practices are contrary to human rights. This issue has generated attention
from a number of law reform bodies, which recommended that customary law be
recognised in a wide range of legal areas including the criminal justice system, burial
rights and distribution of property after death, and intellectual property laws relating to
the protection of cultural information.
 ATSI peoples have also made a range of claims associated with equality rights. These
include citizenship and voting rights, compensation for harm resulting from
discriminatory policies and conduct (for example harm relating to deaths in custody and
child removal policies), redress for intervention in Aboriginal communities (for example
the Northern Territory Emergency Response); and 'closing the gap' between Aboriginal
and non-Indigenous health, education and other social outcomes.
Structural change
 Over the last decade there has been increasing efforts to undertake structural reform
that would see ATSI peoples recognised in the Australian Constitution. This could take
the form of symbolic recognition (already exists in some State Constitutions), a racial
non-discrimination clause in the Constitution, (could we not use the s 51(xxvi) races
power?) and/or the guarantee of ATSI political representation in the Parliament. A range
of efforts have been made over past decade to generate options and proposals for
constitutional recognition. These efforts include the 2017 Uluru Statement from the
Heart which called for three substantive reforms, summarised as 'Voice, Treaty, Truth'.
 Another method of protecting ATSI rights through the formal legal system is for the
state and ATSI peoples to enter agreements or treaties over the nature and extent of
ATSI rights. There have been calls for treaty since 1979, which have been recently
revived through the Uluru Statement, however the treaty process faces a range of
serious political, legal and practical hurdles (what are some of these hurdles?).

Class Discussion

Carefully read the Uluru Statement from the Heart (link from Week 3 of the Course website)

 Identify the key purpose and features of the three major reforms described as 'Voice, Truth and
Treaty'.

- We seek constitutional reforms to empower our people and take a rightful place in our own
country. When we have power over our destiny our children will flourish. They will walk in
two worlds and their culture will be a gift to their country
- We call for the establishment of a First Nations Voice enshrined in the Constitution
- We seek a Makarrata Commission to supervise a process of agreement-making between
governments and First Nations and truth-telling about our history.
- Voice
Enabling Indigenous communities across Australia to have a voice in decisions that are
made about their people, their land, and their way of life is an important step towards
reconciliation.

Where laws are passed?

Parliament, they want to be part of the parliament.
Minister of indigenous Australia – executive

- Treaty
A treaty is a political mechanism used to agree on future decision-making and sovereignty.
It is an important concept that all Australians should understand and engagement
professionals are encouraged to learn more through research and discussion.
The principles of decision-making and sovereignty can be applied in engagement practice
by ensuring that the Indigenous community has a real opportunity to influence the
outcomes.

Against- they come from a very legal perspective / treaty come from international / how can you
make a treaty with yourself.
What are you trying to achieve from a treaty?

Recognition of rights
Coming to a decision

- Truth
Truth-telling is an important movement in the reconciliation journey across Australia and
was a focus of National Reconciliation Week in 2019. We are increasingly seeing a focus
placed on open and transparent dialogue between Indigenous and non-Indigenous
Australian communities. On a large scale, this relates to how we discuss our shared history,
and our current challenges. However this also relates to how we interact on an individual
level. This movement towards truth-telling is important to apply in the way we approach
engagement with all participants, but in particular the Indigenous community.

 How would 'Voice, Truth and Treaty' be implemented in practice?

 Consider what implications would this have for the principles and values underpinning
Australian public law?
-
 How widely has the Statement been accepted by government or the Australian community
more generally? You may wish to watch some of the UniSA 2020 Student Symposium on the
Uluru Statement for help with this question.