Indigenous and the Law

Terra Nullius and European settlement

In 1788, the British claimed sovereignty over Australia by occupation. With no one person ‘owning land’, Indigenous agricultural practices and viewing the land as  “thinly inhabited and of indigenous lore,” the British considered the land as unclaimed. Although the term wasn’t used at the time, we now call this concept terra nullius (land belonging to nobody). This justified European occupation without a treaty with the Indigenous peoples. In 1992, the High Court of Australia overturned the idea that Australia was uninhabited in a landmark decision known as Mabo.

Myall Creek: How the law was applied to Indigenous People

Even though the court in R v Murrell (1836) confirmed the legal status of Indigenous people, in practice, they often remained outside the law’s protection because they couldn’t gain any benefit or protection from it.

The Myall Creek Massacre marked a turning point in Indigenous rights. Reforms followed the trial, driven by the advocacy of John Plunkett.

Establishment of the Penal Colony

The need for a new penal colony: Lord Sydney

In eighteenth-century England, theft was punishable by death. However, the 1717 Transportation Act allowed for a reprieve for those convicted of grand or petit larceny or any felonious stealing, offering transportation to American colonies for seven years as an alternative punishment.

After the American War of Independence, Americans refused to accept more convict transports from England. With a growing prison population, the British Government needed a new location for those sentenced to transportation. After much debate, they decided to establish a penal settlement in Australia. Lord Sydney played a key role in planning the new colony.

The First Civil Case in Australia: Henry and Susanna Kable

In 1783, 19-year-old Henry Kable (or Cable) and his father broke into a house in England and stole many household goods. Both were sentenced to death, but while Henry’s father was hanged, Henry’s sentence was reduced to transportation to America for seven years due to his young age. In 1784, 20-year-old Susannah Holmes stole linen, clothing, and kitchen goods from her employer. She was also sentenced to death, but her sentence was commuted to transportation to America for fourteen years. Susannah and Henry Kable were among the convicts who came to Australia on the First Fleet.

They became parties to the first civil case in New South Wales. Convicts, who had no rights when they left England, were able to marry and receive legal protection in the new colony. They were treated equally before the law and successfully sued the powerful ship’s Master, Duncan Sinclair, for their lost parcel of possessions. The Kable’s Case demonstrates how the rule of law adapted to the new colony, providing equality before the law. 

The establishment of the NSW Supreme Court

Following the Bigge Reports in 1822 and 1823, the British Government recognized the need for additional checks on the Governor’s power and better administration of justice in the colony of New South Wales. The New South Wales Act 1823 (UK) established key institutions such as the Legislative Assembly, Executive Council, and the Supreme Court with an independent judiciary, which began to limit Governor Darling’s authority.

Francis Forbes, the first Chief Justice, was dedicated to upholding the law and protecting freedoms. He often clashed with Governor Darling, particularly over press freedom, opposing the governor’s attempts to impose restrictive press licensing laws and maintaining the separation of powers.

The Eureka Rebellion

The Eureka Rebellion, also known as the Eureka Stockade, took place in Ballarat in 1854 during the Victorian gold rush. This violent clash between Victorian miners and the colony’s military marked a pivotal moment in the fight for true representative democracy in Australia, as the people demanded a “fair go” and the right to be included.

Through their sacrifice, the miners reinforced key values that are now deeply embedded in Australian society, such as freedom of assembly and political participation, freedom of speech, expression, and religious belief, and the right to vote and be elected.

Click here to see our resource on how the Eureka Rebellion impacted democracy in Australia

Different Paths to Federation: Australia and USA

In contrast to the American experience, where they “fought” and “killed” “for the notion of a nation we now get to build” (quotes from the musical Hamilton), Australia’s path to federation was marked by peaceful referendums in each colony, where citizens voted to unite as one nation. Australia had its own Alexander Hamilton in Henry Parkes. Both men, as immigrants to their adopted countries, worked tirelessly to achieve democratic milestones and establish a national doctrine that millions of citizens live by today. They are both unsung heroes, and it is fitting that Parkes and Hamilton are commemorated on national currency.

These resources use songs from the musical Hamilton as a prompt to compare the different paths that Australia and America took on their journey to federation.

Using the Case Method to teach History

This resource provides a step-by-step guide to the Case Method. This teaching approach utilises decision-forcing cases to immerse students in real historical dilemmas from the past. The approach fosters critical thinking and facilitates student engagement in civil debate. Resources for First Civil Case and the Establishment of the NSW Supreme Court.

Civics and Citizenship

In Australia, Civics relates to civic knowledge of our system of governance, our democracy and the rule of law. It looks at the history, structures and process to provide students with relevant knowledge and understanding. Citizenship looks at skills, attitudes, beliefs and values that support active citizens and the capacity to act as informed and active citizens. Australian society has three main beliefs that form the core of our national identity, each one embedded into the process of how Australia is governed: Democracy, Laws, and Human Rights.