Characteristics of Legal Mistakes by the British Imperial Government in Australia 1788-1901 - Research Paper Example

THE RULE OF LAW IN AUSTRALIA (Institution) (Course) (Name) (Instructors name) Date of submission INTRODUCTION Defining the rule of law The concept of the rule of law has long history and in it contains some element of change in the understanding and interpretation of the concept. Basically, rule of law refers to a doctrine or ideology on government conduct. Therefore, the relationship between legal institutions and the doctrine of the rule of law becomes paramount. The cardinal rule in this relationship is that the government should abide by the rules it sets up and even be limited by them. However, some governments have exhibited tendencies to deviate from the rule of law. The British colonial government in Australia stand accused of ignoring its common law which it exported to some of its colonies, in this context Australia.1 This paper discusses some characteristics of some legal mistakes by the British imperial government in Australia 1788-1901 that inhibited and continues to inhibit the rule of law. BRITISH SETTLEMENT The mere presence of British settlers in Australia by itself affected the application of the rule of law henceforth. With the British settlement in Australia, the aborigines’ way of life, political system, culture, way of life and social conventions were disrupted. The plight of these aboriginal people and Torres Strait islanders in this period (1788-1901) is popularly blamed on the British colonial government as the overseer of the settlement and eventual colonisation. The British government did not acknowledge the natives that they found in Australia as they settled. The settlers disregarded aboriginal human rights, culture, political and legal systems and right to community land which have been ignored by subsequent governments of an independent Australia until recently.2 It is only in 1990 that the aboriginals were given official recognition as a self determining group. The early perception of the aboriginal people by the British settlers tended to legalize their occupation. This has been hard to erase over the years.3 In some of the personal records of the early explorers, the aborigines were perceived as literally lesser human beings. William Damper, a settler who docked on the Australian shores in 1688 described them as the “miserablest people in the world… setting aside their humane shape, they differ but little from brutes.” George Thompson, a marine in the early expeditions perceived them as “a lazy, indolent people, and of no ingenuity.”4 Other issues raised by the first Britons to interact with the aborigines were lack of clothing and housing. The aborigines dwelled in caves and cultivated nothing at all but survived on gathering and hunting. There was also a general acceptance that the aborigines were stupid and primitive. Such perceptions have been carried on in the modern Australia. Aboriginal individuals have reported numerous cases of racial abuse and discrimination. Some rural aboriginal communities have remained separated from modern civilization of urban Australia. Some communities have stuck so strongly to culture such as a dream time stories which more often than not is mistaken for primitiveness.5 Such perceptions continue to limit the rule of law in modern Australia. Before European settlement, the aborigines were a well organised community with political, social and legal systems. According to the 1827 R v Tommy court ruling, the English law could not apply to aborigines since they had their own pre-existing legal systems.6 This made aborigines exempt from the English except under special circumstances. Other court rulings such as R v Boatman or Jackass and Bulleyes7 and R v Ballard strengthened this position. Nonetheless, some British court rulings such as Lyons (Mayor of) v. East India Co and Cooper v. Stuart (1889) held that any land declared Terra Nullius had no pre-existing law even if it was inhabited.8 The special circumstances under which the English law would only apply to natives was in cases pitting a settler versus a native. In modern times, some rural aboriginal communities still feel that the common English law as it applies in Australia does not involve them. Consequently, crime and violence in aboriginal communities remain relatively high. However, there are arguments that a perceived higher crime rate among aboriginal communities is nothing but a social stereotype.9 In modern times, aborigines’ quality of life is significantly lower than the national average. Road and infrastructure networks in aboriginal villages are considerably poor. They have not fully enjoyed the socioeconomic benefits of a modern Australia; equality is a far cry.10 Research has also shown that some aborigine communities feel excluded by the state and federal government. They have taken active steps in opposing some government policies such as development of some land areas. Numerous court cases have been filed by human rights group in challenging government efforts in destruction of land and natural phenomena that has cultural values to the aborigines. The tense and suspicious relations between the federal government and the aboriginals have not helped matters. This relation was established during the colonization period when the aborigines were brutally maimed and tortured by the British settlers and forced to work in plantations and denied civil status.11 In a society that recognises the rule of law, such people should be compensated for the ills and sufferings that they endured. However, nothing conclusive has been done yet. The Redfern Speech made efforts towards this but it has been hampered by legal and political hurdles. This tense relation between aboriginal and non-native Australians is a product of the authoritarian colonial practices that continue to limit the rule of law. CONCEPT OF TERRA NULLIUS Closely related to the plight of aboriginal people and Torres Strait islanders is the concept of Terra Nullius. The Imperial British government wrongfully declared Australia Terra Nullius despite the explorers acknowledging the presence of inhabitants. By declaring Australia Terra Nullius, it implied that the term native people or native land was unacceptable legally. This therefore gave the British government absolute control over the land and natural resources.12 Prior to the onset of the Cpt. Cook expedition, the president of the Royal Society, the organisation which had commissioned the expedition acknowledged that Cpt. Cook and his team were likely to come face to face with “the natural and legal owners of the lands” that they would encounter.13 Cook was advised thus to treat them respectively and respect their land and resources. The British government played an active role in denying the existence of native Australians. The early settlers and explorers, headed by Cpt. Cook reported that “the natives do not appear to be numberous.”14 He also made a brief note of the culture of the native people and their social and cultural structures. Another notable person to recognise the presence of natives despite a legal approach that denied their presence was one Arthur Philip, who was later to become the first governor of New South Wales. He said, “The general opinion…is that there are very few inhabitants in this country.” 15 The colonialists’ treatment of Australia as colony was different from the standard approach used then. The strategy applied by Britain and other colonial powers in annexing new colonies basically involved an agreement between the local people and the colonial government.16 From Africa to Asia and South America, colonial powers entered into treaties with the local people through their tribal chiefs. These treaties provided a guideline and a framework that guided the relations between the two. However, the absence of a treaty between the colonial government and the natives implied that the relations between the two were abstract and undefined. The 18th century international law of Europe recognised three ways of possessing foreign land: 1) By persuading the indigenous inhabitants to submit themselves to its overlordship; 2) by purchasing from those inhabitants the right to settle part or parts of it; 3) by unilateral possession on the basis of first discovery and effective occupation.17 Britain opted for the third option as indicated by forceful eviction of the aborigines. In modern times, the claims for native land by some aboriginal communities are technically invalid under Terra Nullius. For instance in the 1971 Gove land rights case, Justice Blackburn cited that Australia had been Terra Nullius before the British settlement hence the native title was inapplicable.18 Another case, Mabo v Queensland19 has also challenged the concept of Terra Nullius.20 The debate on what qualifies as Terra Nullius still continues. Where the conventional wisdom dictated that terra nullius was land with no inhabitants, the British settlers suggested applying the term to also include very sparsely populated land such as Australia. Another aspect rose in declaring Australia terra nullius was the fact the natives had absolutely no buildings or cultivated crops. As such, the land could not be viewed as theirs. Captain Cook in his records too noted that the natives did not appreciate any form of trade given that items that they left in the caves of the natives remained untouched while the natives expressed unwillingness in letting anything that traditional belonged to them away. This was translated to mean, any attempts to buy land from the natives would be futile as no amount of money or any other goods would be accepted by the natives-they had no understanding of property ownership.21 Therefore, the concept of terra nullius was being used to circumvent the problem of making treaties with natives in light of the desire to cultivate the vast land and settle there.22 Nonetheless, later land transactions were made such as by John Batman in Victoria in 1835 through a treaty though the colonial government did not officially recognise it.23 CONSTITUTIONALISM OF THE CONSTITUTION There are questions on the constitutionalism of the Australian constitution. The formulation of the Australian constitution was among the last major actions of the British colonial government in pre-independent Australia. The first draft constitution was written in 1891. The final draft was passed through a referendum and forwarded to the British parliament for approval which it did through the 1900 Commonwealth of Australian constitution act. The act and thus the constitution came into force on 1st January 1901 a day which was adapted as Australia’s Independence Day. This Australian constitution is still in use. The constitution act requires that amendments be made through referendum though the constitution act itself is not a part of the constitution. Apart from this anomaly, this constitution fails to meet some basic functions of a constitution. Key among them is a failing to provide a clear guideline on the separation of powers amongst the arms of government and even the federations.24 The federal system, borrowed from the US. However, the US constitution has clearly indicated the limits of power of the various levels of government. The Australian constitution does not explicitly show the limits of these powers.25 The Australian constitutional model is hybrid of the British and American system.26 With the British constitution largely guided by unwritten law and the American constitution guided by written law, the Australian constitution suffers discontinuity between the text on one hand and the ethos on the other hand. What is written down in the constitution is not what is practiced. A number of political experts note that the Australian constitution does not guide Australian politics as it is supposed to but rather it is the politics of the day that define and interpret the constitution to suit prevailing circumstances.27 Take for instance the issue of powers of the prime minister and the governor general. Convention had it that support of the house and not necessarily the senate was the hallmark of responsible government and representation. However, when Prime Minister Whitlam failed to get the appropriation bill through the senate, only then did the written constitution come into play. In 1975 the powers of the governor general as stipulated in section 64 were put into practice when the then governor general, John Kerr dismissed Whitlam from the office of the prime minister alongside his cabinet ministers. Fraser was appointed as the Prime minister of the new caretaker government. Attempts by the house to pass a vote of no confidence on the Fraser government were pre-emptied when the governor general ordered a double dissolution under section 57 of the constitution hence new round of elections. The federalist structure calls for separation of powers amongst the arms of government, the commonwealth structure unifies them creating some inconsistency.28 For instance, the constitution clearly states that Australia is a constitutional monarchy with all executive powers vested in a governor general, who acts as a representative of the queen assisted by the executive council. The governor general is the commander in chief too. However, in practice, the governor general is just a figure head. Executive power is exercised through a number of conventions. The majority party in the House of Representatives forms the government headed by a Prime minister who governs through the cabinet.29 However, as aforementioned the constitution does not recognise this convention as witnessed through the sacking of a prime minister by the governor general in 1975. CONCLUSIONS The manner in which the Australian colony was established is the root cause of all legal and constitutional woes bedevilling Australia. Francis Forbes, First chief justice of New South Wales once said that, “the first colony was a body of convicts, with as many marines as were necessary to guard them; the first government of the colony was that of a gaol, and the first law little more than prison discipline.”30 The aborigines found the white settlers alien in their looks and way of life. The reception they gave the invaders was mixed; friendliness and hostility. However, the settlers dismissed the people as uncivilised and somehow lesser human beings. There have been glimpses of these perceptions in a modern Australia. Cases of aborigines being racially abused and excluded from national policies are common. Such perceptions are essential the results of the authoritative rule imposed on native people.31 The fact that majority of the settlers were convicts implied that there was little respect to the rule of law. Remnants of ‘prison discipline’ were engraved in the constitution that is still in use today. The only way to ensure the rule of law exists in Australia is overhauling the constitution. The colonial government imposed a new way of life on the aboriginal people including the English common law which was entirely new to them. Opposition to foreign rule was only natural and the most expected result, but the colonial government failed to see this and acted in the contrary. The aborigines were not familiar with cultivation and the so called modern life.32 The settlers were pushing this kind of life on the natives in a bid to civilize them. However, the natives were not ready to this kind of life and thus they resisted. This resulted in the use of force. Thousands of native lives were lost. This created another level of enmity between the two. Efforts to officially acknowledge these crimes against humanity and arrange for compensation are still underway. The Redfern Speech was supposed to mark the beginning of a healing process.33 Until more comprehensive efforts are put in place, the relationship between the aboriginals and non-native Australians will further strengthen a case of failed rule of law. The partial exclusion of the aborigines from the common law opened a new path for lawlessness among the aboriginal people. Some aboriginals still hold the view that the English common law in use in Australia does not apply to them. This may be a sign of resisting change and sticking to cultural values. As such, the government needs to develop a programme that will harmonise any existing aboriginal legal systems with the common law. The Milirrpum v. Nabalco Pty. Ltd34 ruling acknowledged that there was a cultural system among aboriginals which acted as their law. Thus such cultural values should be incorporated in law. Declaration of Australia as Terra Nullius directly is responsible for the present day exclusion and impoverishment of the aborigines. Although a number of court rulings have challenged the concept of terra nullius in Australia, and recognizing native land, the government is still vehemently opposed to it. The constitution is ambiguous on some major issues hence a potential source of legal and political conflict itself. It has been noted that the Australian constitution contains many ambiguous and complex unexplained legal terms. This push for an overhaul of the constitution References (a) Books and articles Bonwick, J, John Batman: The Founder of Victoria, 2d ed, ed. C. E. Sayers (1973), 84–87. Broome, R, ‘The Struggle for Australia: Aboriginal–European Warfare, 1770–1930’, in M McKernan and M Browne (eds), Australia: Two Centuries of War and Peace (1998) Crowley, Frank, Colonial Australia: 1788 – 1840, (1980) Daunton, Martin, Empire and Others: British Encounters with Indigenous Peoples, 1600-1850, (1999) Davidson, A, The invisible state: the formation of the Australian state, 1788-1901, 2001 Day, David, Claiming a Continent: A New History of Australia (1997) Denton, Kit, For Queen and Commonwealth: Australians at War, (vol. 5, 1987) George Winterton, Parliament, the Executive, and the Governor-General: A Constitutional Analysis (1983) Historical Records of Australia (series IV, 1:330) Kercher, Bruce, “Native Title in the Shadows: The Origins of the Myth of Terra nullius in Early New South Wales Courts,” in ed. Gregory Blue et al, Colonialism and the Modern World: Selected Studies, (2002), 100–19 Mayer, K and Schweber, R, Does Australia Have a Constitution? Part I: Powers - A Constitution Without Constitutionalism (n.d.) Mercer, D, ‘Terra nullius, aboriginal sovereignty and land rights in Australia: The debate continues’ Political geography, (2002), 12(4), 299-318 McGrath, Ann, Contested Ground: Australian Aborigines under the British Crown, (1995) Miller, R, L, Behrendt, and Lindberg, T, Discovering Indigenous Lands: the Doctrine of Discovery in the English Colonies, (2010) Moorehead, Alan, The Fatal Impact: An Account of the Invasion of the South Pacific, 1767-1840 (1966). Moore, George Fletcher, Diary of Ten Years Eventful Life of an Early Settler in Western Australia (1884) Neal, David, The rule of Law in a Penal Colony: Law and Power in Early New South Wales, (1991) Orakheshvili, A ‘The idea of European international law’ The European journal of international law, 17(2) (2001) Peter Karsten, Between Law and Custom: “High” and “Low” Legal Cultures in the Lands of the British Diaspora—The United States, Canada, Australia, and New Zealand, 1600–1900 (2002) Reynolds, Henry, Disposession: Black Australians and White Invaders (1989) Sampford, C and Round, T, Beyond the republic, meeting the challenges to constitutionalism (2001) Sydney Gazette, 25 February (1832) University of Melbourne, Australian historical studies (2001), issues 116-117 Winterton, George, Parliament, The Executive, and the Governor-General: A Constitutional Analysis (1983) (b) Lyons (Mayor of) v. East India Co. (1836) 1 Moo PC 175, at pp 272-273 Mabo v Queensland (No 2) [1992] HCA 23, at pp 223 Milirrpum v. Nabalco Pty. Ltd (58) (1971) 17 FLR 141, at p 267 Read More