Background notes
All communities need rules to organise and protect their members. Laws are legal rules. Breaking a law may result in legal action. In a free democracy rules and laws have a similar purpose: to achieve fairness, justice and security.
When the American colonies declared their independence in 1776, they refused to take any more convicts. Britain was forced to keep those sentenced to transportation in the gaols and in the hulks (old boats) moored in harbours and rivers. When these became overcrowded, the British Government looked for a new place to send convicts. In 1786, it decided to start a colony in New South Wales. The First Fleet arrived there in 1788.
To govern this colony the British Government appointed a governor, Captain Arthur Phillip. Governor Phillip was given very wide powers, but he was bound by British laws and instructions received from the British Government. Phillip's rule can be described as one-man rule; he was solely responsible for implementing and administering the rule of law in the colonies.
As 70 per cent of the population were convicts, with limited rights and legal entitlements, Governor Phillip's one-man rule was the most appropriate form of law-making in the colony at the time. The law brought to the colony was British law but interpreted in the colony. Convicts were given some rights in civil courts not afforded to them in Britain.
There were growing numbers of free settlers among the population. The governor made laws that treated free settlers differently from convicts and ex-convicts. This began to cause difficulties. During the time of Macquarie (1810-1821), free settlers often clashed with the governor. The free settlers were excluded from government and so did not see why they should have to obey the governor's laws or pay taxes. They pointed to Britain's government, where the wealthy property owners were represented in government.
For Aboriginal people, the British colonisation was to have disastrous effects on their communities. Although Governor Phillip was instructed to live in harmony with the Aboriginal people, conflict arose and often resulted in bloodshed. Aboriginal law was not recognised by the British, and while protected under British law Aboriginal people were excluded from the legal process. A particularly vicious attack on some Aboriginal people in which most were murdered took place in 1838 at Myall Creek. After two trials the white men accused of the murders were convicted and executed. Governor Gipps wanted to show that the rule of law applied to everyone in the colony. For the first time equality of all people before the law was upheld.
Today Australia is a democratic society. People have the ultimate say in the making of laws by electing representatives to parliament. In 1901 the people of the colonies united and a federal Australian system of government was formed. A constitution was written to provide rules about the government and law. The Constitution provides for elections for parliament. Governments make laws in parliament but they are also bound by the law. Courts also make laws by establishing a judicial precedent, known as common law. Judges interpret the law when they consider new cases.
To read more about the ideas in this unit refer to Discovering Democracy - A Guide to Government and Law in Australia.
Other resources
Bassett, J, Bomford, J and Abrahams, O 1994, Voices from the Past: Australian History to Federation, Jacaranda Press, Brisbane.
Bereson, I and McDonald, D 1997, Civics and Citizenship, Nelson, Melbourne.
Laurence, J, Eschuys J and Guest, V 1991, Dreamtime to Nation, Macmillan, Melbourne.
Shafer, M and Brown, D 1996, Visions of Australia: Exploring Our History, Oxford, Melbourne.
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