Treaty with Indigenous Australians

This assignment discusses the importance of a treaty between the Australian government and Indigenous Australians. It highlights how such a treaty can foster harmony, understanding, and mutual support between both parties. The document emphasizes the need for open dialogue, addressing concerns, and ensuring equitable access to resources and opportunities for Indigenous Australians.

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AUSTRALIAN LEGAL SYSTEM
STUDENT’S NAME:
STUDENT’S ID:
PROFESSOR’S NAME:

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Table of Contents
Question 1:.......................................................................................................................................3
1. Explanation of doctrine of precedent as well as how it has been operated within Australian
legal system.....................................................................................................................................3
2. Explanation of Australia’s Federal system of government and the reason for states being the
important element of the system......................................................................................................3
3. Explanation of the role of High Court in Australian legal system as well as impact of Australia
Act 1986 on the particular role........................................................................................................4
4. Explanation of the operations of rule of law within Australian legal system..............................5
5. Describe why Australia is a constitutional monarchy.................................................................6
Question 2........................................................................................................................................6
Scenario 1........................................................................................................................................6
Scenario 2........................................................................................................................................8
Question 3......................................................................................................................................10
Discuss whether the Australian government should sign a treaty with the Indigenous Australians.
.......................................................................................................................................................10
Reference List................................................................................................................................14

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Question 1:
1. Explanation of doctrine of precedent as well as how it has been operated
within Australian legal system
The doctrine of precedent is considered as a fundamental constraint over judicial decision-
making within Australia1According to a doctrine of precedent, the judges are supposed to pay
appropriate respect to the previous judicial decisions. In some of the cases, judges become bound
for applying the reasoning of the judges in previous cases or it can be said that judges follow
decisions taken in the past for deciding cases, which raises a similar type of facts. Sometimes,
judges even take reasoning of the judges seriously that have been taken in previous cases even if
it is not important or they are not bound to consider the reasoning and apply that particular
decision. Serving political ideal for rule of law is considered as the moral values for a doctrine of
precedent. According to this ideal, courts are supposed to ensure that law has been developed as
well as applied consistently and predictably, which would help citizens in ordering affairs along
with confidence as to their duties and rights.
In a case [2008] HCA 40, a learner driver met with an accident, which injured one passenger.
The high court was supposed to make a decision on this case. It is the legal duty of a driver to
take care of his passengers; therefore, breaching this duty would lead him to legal consequences.
It is not bound for the driver to follow the past decisions, but it does so in the similar type of
cases that rises. Thus, in this particular case, the high court could follow the previous decisions
as well as a rule that the driver owes a better standard of care to the passenger. However, the
court did not follow the previous decision and overruled the previous decision. In other words,
the court rejected the past decisions in a similar type of facts.
2. Explanation of Australia’s Federal system of government and the reason
for states being the important element of the system
Australia is referred to as a federation of six states that have their own constitutions, laws,
government and parliament along with two self-governing territories. The Australian system of
government is called as commonwealth government or Federal Government. The federal
government has been established by the constitution of Australia by providing for parliament,
1 Neil Duxbury, The Nature And Authority Of Precedent (Cambridge University Press, 1st ed,
2008).

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executive government and judicature2. However, several central features of the Australian system
of the government have not been set down within the constitution, instead are based on
convention and custom. The parliamentary government refers to the fact that executive
government rises from within parliament, whereas, responsible government refers to the fact that
executive government has been responsible to parliament.
Legislature also is known as a parliament of Australia has been made up of representatives that
have been democratically elected from within Australia.
3. Explanation of the role of High Court in Australian legal system as well as
impact of Australia Act 1986 on the particular role
The high court is considered as the highest court within the Australian judicial system. It has
been established in 1901 by the section 71 of a constitution. Interpreting and applying an
Australian law, deciding cases of the special federal significance that includes challenges to the
constitutional validity of laws as well as to hear the appeals from Territory, state and federal
courts are the functions of the high court. The seat of the high court is said to be in Canberra,
which is located within the triangle of parliament. The high court could house three courtrooms,
main registry of court and chambers of justices. Moreover, there are offices in a high court of a
registry within Melbourne and Sydney that are staffed with officers of the High court. The
Australian high court could deal with several cases that come on appeal or that begins within the
court itself3. Seven justices have determined cases that involved interpretation of the constitution.
Various cases that arrive at the high court for the final determination involves appeal against
supreme court’s decisions of states as well as territories of Australian federal court as well as the
Australian family court.
Australia Act 1986 is considered as the name of legislations namely acts on commonwealth
parliament of Australia and parliament of UK. Australian commonwealth act has been
2 James Robertson, "DNA Evidence In The Australian Legal System" (2016) 49 Australian
Journal of Forensic Sciences.
3 Sharon Weill, "The Legitimating Role Of The Israeli High Court Of Justice: From Occupation
To Segregation" (2015) 15 Global Jurist.

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considered as the final from the seven acts of seven parliaments of Australia that are required for
changes in the constitution to an entire federation.
4. Explanation of the operations of rule of law within Australian legal system
According to principles of government, rule of law such as representative democracy and
separation of the powers consists of both aspirations as well as formal aspects. Rule of law is
considered as the principle, which individuals and governments could act according to laws
known publicly4. These laws could be adopted as well as enforced in a manner that is consistent
with established traditions, procedures and conventions. Rule of law has been a foundational
principle that underpins preparation of American and Australian constitution. It has been
considered as a cornerstone for democratic societies. Rule of law embodies facts that are part of
the political debate.
Rule of law consists of several characteristics:
The universality of a scope of law: According to the first principle of rule of law, every citizen
comes under the scope of law irrespective of his or her authority and eminence. Those are
responsible for making and enforcing the laws have been bound the rule of law.
Clarity for every citizen: According to the second principle of rule of law, a law is supposed to
be expressed in a manner that individuals could be guided by it. For achieving the goal, several
conditions are to be met. These laws should be understandable as well as clear. The body of law
could not be contradictory.
Supportive arrangements of an institution as well as legal culture: It is very important to
have a proper institution for supporting rule of law. However, there have been four central
concepts that support principles of rule of law, which are adopted widely. There is also a need
for having a culture for the law that has been valued widely as well as shared among the lawyers.
4 Nóra Chronowski and Márton Varju, "Two Eras Of Hungarian Constitutionalism: From The
Rule Of Law To Rule By Law" (2016) 8 Hague Journal on the Rule of Law.

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5. Describe why Australia is a constitutional monarchy
Australia is a well developed and advanced country which is flourishing in every department.
Australia follows the constitutional monarchy style. It is previously called as a commonwealth of
Australia. In the year 1901, all the six states of the Australian Country together decided to join
together and form a federation. The six states that came together to form an Australian country
were previously part of the British colonies. A new constitution was then followed by Australia
which further flourished the whole country. Australia then started to follow the constitutional
monarchy style5. It is a process in which the Monarch of country of England is the ultimate and
The Supreme head of the government. It is called constitutional as the government of that
country strictly follows or works according to the provisions or rules laid down in the
constitution. It is termed as a monarchy as Queen Elizabeth II is at present at the ultimate head in
the country of Australia. The Queen Elizabeth II has no ultimate powers and only remains as the
supreme head with ceremonial powers. The Queen has no real powers in administrative and
political actions of the country. The government of Australia regulates their authority in the
different actions of the country. The millions of people in Australia think that Australia should
follow the constitutional monarchy system as it serves better the interests of the Australia as
compared to the republic style. Due to the demands of the millions of the people in Australia, it
continues to follow the Constitutional monarchy style in their country6. The people of Australia
thinks that there is a strong emotional appeal in following the constitutional monarchy style in
their country as Australia was previously a part of the independent British colonies and also was
previously founded by Great Britain in earlier times.
Question 2
Scenario 1
In the following scenario, Sebastian has underlined his problem and also described that he wants
to get a divorce from his wife. The two children of Sebastian went away from home to lead their
own life. Sebastian has been married for 25 years. There has been a difference in the thinking
5 Pamela M Pilbeam, The Constitutional Monarchy In France, 1814-48 (Taylor and Francis, 1st
ed, 2014).
6 Sean Connolly, Monarchy (Smart Apple Media, 1st ed, 2013).

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process of both him and his wife. I advise Sebastian for getting a divorce from his wife as they
no longer want to stay together as a family and want to be separated from each other. They want
to leave a separate life and want to stay happy separately. They have been living separately from
each other in the last 18 months in the same house. I suggested Sebastian that they have been
already separated from each other in the last 18 months and so they needs to file a petition in the
court of Australia and also needs to form an additional form in the court of Australia. According
to the family law act 1975, the Federal court of Australia has the ultimate powers to handle or
conduct the divorce between the husband and his wife7.
They have to mutually agree that they want to get a divorce and stay away from each other. I
suggest that after getting divorce Sebastian and his wife can stay separately in their own house or
stay in separate houses according to their wish. Under this law, they have to convince the court
that they have stayed separately from each other for the last 18 months. They have to then sign a
form together and submit the form to me and it would be presented in the court. I advise that
Sebastian should give a joint application to the court of Australia which comprises application of
both him and his wife who wants to be separated from each other. Sebastian and his wife should
also need to answer the questions given in the form before filing the petition for divorce in the
court of Australia. Sebastian and his wife should need to answer the questions that they are
willing to stay in Australia after getting divorce8. They should also have to give their birth
certificates as proof that they were born in Australia. They should also have to show the
Australian citizenship certificate to the court. They should also have to proof that they have
stayed in Australia for a period of 12 months before filing their divorce to the court. After
submitting the application to the court consisting of the following subjects the court would try to
investigate the following things. In this case of Sebastian, they are living separately for a period
of 18 months under one roof and they want to get separated from each other. The court would
see that they have been sleeping together in one room under that period of 18 months before
filing the application for divorce. They were engaged in any type of sexual activity in that period
of 18 months. They were sharing their meals and also shared together their bank accounts
together in that period of 18 months. I would suggest that Sebastian should quickly file the
7 Anne Hall Dick, Family Law (Scotland) Act 1985 (W. Green/Sweet & Maxwell, 1st ed, 2000).
8 Russell Hinchy, The Australian Legal System (Thomson Reuters (Lawbook Co), 1st ed, 2015).

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application for divorce to the court quickly so that they are separated quickly from each other. I
would also suggest that Sebastian should quickly go to the home and ask his wife to form the
application form so that the divorce is filed quickly to the court. I would also suggest Sebastian
that he should be ready with the details of the documents that are needed to be presented in front
of the court at the time of filing the petition for divorce to the court. I would also suggest that
Sebastian should take the advice of his wife after getting to the home so that they quickly file the
appeal for divorce in the court. After that, the court would investigate the following documents
that are given to him and also give the relevant date for the hearing of divorce date. On that day
Sebastian and his wife should be present there and the court would hear the views of Sebastian
and his wife and grant a divorce to both of them. I would suggest that Sebastian and his wife
should think carefully about the decision of getting the divorce and file the divorce file in the
court.
Scenario 2
In this scenario, it has been seen that there has been domestic violence done with Lisa by Ross at
the time of marriage. Lisa was not mentally ready for marriage at that time with Ross. Lisa was
given mentally pressure to marry Ross at that time. I also asked Lisa about the validity of her
marriage with Ross. In the above scenario, it is very clear that Lisa is very unhappy in staying
with Ross as his wife. Lisa is very unhappy with the daily activities of Ross and the force that he
exerts on Lisa. I also suggest Lisa that she should go to the court and file a domestic violence
protection act against Ross due to the violence is done by Ross on Lisa after the completion of
their marriage. There are several domestic protection laws in Australia which should help Lisa
against the violence done by Ross on her daily after the marriage. In Australia the domestic and
violence protection Act 2012 is laid down by the government9. This act protects any person who
is suffering from domestic violence after their completion of marriage. This act helps the person
to stay safe from any type of violence done to him or her after their marriage. I would suggest
Lisa that she goes to the court and files the complaint against Ross and tells them about her
stories of violence. It would help the court to make a domestic violence order against Ross which
would protect Lisa from the violence of her husband Ross.
9 Bonita Meyersfeld and Harold Koh, Domestic Violence And International Law (Hart, 1st ed,
2012).

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The Domestic violence order helps to minimize the domestic violence which occurs within the
relationship caused after marriage and helps to restricts or control the behavior of the concerned
person who is committing or doing the violence or abuse on the concerned person10. In this case,
Ross is performing domestic violence on Lisa which is affecting Lisa mentally all the time.
Domestic violence is a process in which the concerned person who is in linked with an intimate
relationship after the completion of their marriage or any types of irrelevant behaviors which are
performed by the concerned person against the victim which is suffering from the violence done
on the person.
The domestic violence includes the emotional, verbal, sexual, financial abuse done on the victim
by the concerned person11. In this scenario, Lisa has proof to show to any of her friends or
relatives that she is being abused or being a victim of the domestic violence performed by Ross
on her. I suggest that Lisa should take the proof of medical evidence that she has with her during
the period when she experienced issues of underweight during the period when she was doing
overstretched work in the office. I also suggest Lisa that she should take the medical reports
along with her and present to the court that she experienced underweight issues and she
continued to do her work and support Ross.
Despite this helpful activity Ross continued to force her to do the work and performed violence
activities on her. Ross also provoked Lisa that he should commit suicide if Lisa did not marry
him. Lisa also does not have any recent medical evidence that she is being violently dominated
by her husband Ross physically. I suggest that Lisa should gather any type of recent medical
evidence and present in front of the court. It would help the court to quickly file the domestic
violence protection order against Ross. It would help Lisa in stopping any type of violence done
to her by her husband Ross. I would also suggest Lisa that to think very carefully about the
validity of their marriage and the relation that she has with her husband Ross. I suggest Lisa that
she should think of staying further with her husband Ross more and stay in the same house. Lisa
is being forced to stay with Ross as she is not in a healthy mind to stay with her husband Ross
more in the same house and continue their marriage life in the future.
10 Kelly Barth, Domestic Violence (Greenhaven Press, 1st ed, 2009).
11 Michael D. A Freeman, Domestic Violence (Ashgate, 1st ed, 2010).

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So I suggested Lisa complete the procedure of gathering any type of proof against the domestic
violence done to her by her husband Ross and present that in front of the court so that the court
would start to take the necessary actions of passing the domestic violence order as quickly as
possible against her husband Ross. It would help Lisa to be freer in her mind and her mind would
be more stable. She would start to feel less fear in her mind about not getting domestically
violated anymore by her husband Ross.
Question 3
Discuss whether the Australian government should sign a treaty with the
Indigenous Australians.
The indigenous people of Australia consist of the different people belonging to different tribes
who live in different islands in Australia. Australia being a commonwealth nation should go in
treaty with the indigenous people of Australia. There is a need of going in a treaty with the
Indigenous people of Australia. The indigenous people had their origins in Australia previously
where they used to stay previously before forming a separate section of tribe12. The government
of Australia should think that by going in a treaty with the indigenous section of the people
would help to build the overall strength of Australia as a whole in future and boost the economy
of the country. The absence of a proper treaty between the government of Australia and the
indigenous people lacks proper denial of their occupation of land and also a denial of their proper
existence of their survival. It would also lack proper relation between the indigenous people and
the other citizens of Australia. During the formation of the constitution in Australia, the
indigenous people were not enlisted in the constitution at that time. They were considered as a
separate race previously in Australia and later they were drafted in the constitution. The
Australian government never tried to enter into an agreement with the indigenous section of the
people in Australia in previous times13. They never discussed with the indigenous people of
deprival of their lands in previous times and also the idea of the treaty also never came into their
mind.
In 1990, the government of Australia tried to propose to go into a treaty with the indigenous
people but failed to complete the treaty successfully. The proposal of going into a treaty with the
12 Martin Hinton, Indigenous Australians & The Law (Taylor and Francis, 1st ed, 2012).
13 Shonna L Trench, Latinas Narratives Of Domestic Abuse (John Benjamins Pub., 1st ed, 2003).

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indigenous people was later changed into recognition into a constitution. It later on raised as a
controversial rumor and later on changed into a discussion of a constitutional recognition.
The treaty with the indigenous people includes hearing about their matters of grievance and also
their problems of staying together within the continent of Australia together. The Australian
government should try to give solutions to the grievances of the indigenous people and try to
enter into a negotiation with them.
The treaty should discuss the mutual respect that should be shown to them by the other people of
Australia. It should help them to earn equal respect as earned by other citizens residing in
Australia. The overall change that could help to boost the economy of the country of Australia
should be helped by going in a treaty with the indigenous people. The treaty should help the
government also to introduce many programs designed for solving the different needs of the
indigenous people of Australia. This treaty would help the indigenous people to develop their life
more. It would help to improve and make development more in their education, maintaining the
health care and also develop the economic position of them as a whole. The successful treaty
with the indigenous people in Australia would make them more capable of making their own
decisions and also makes them stronger in overall terms14.
The Indigenous group of people used to stay previously in Australia and so they have the rights
to reside in Australia. The Treaty should help them to stay in a peaceful way and they can come
and stay with the other citizens of Australia together by facing no problems.
This treaty would also help in the better protection of the indigenous people. It would also help
to provide better thinking system for the different regional and local thinking process in making
their decisions. It would also help the indigenous people to be felt more safe and happy as
compared previously before completing the treaty with the Australian government.
The treaty would also add to the sovereignty of the indigenous people which would help the
people to enjoy freedom in their respective territories. It would help the indigenous people to
have their own control in all the affairs of their land and there should be not any type of outside
interference from any type of outside government. The government of Australia should always
support on the basis that they must give emphasis on the sovereignty of the indigenous people.
14 Toni Bauman, Whose Benefits? Whose Rights? (Native Title Research Unit, Australian
Institute of Aboriginal and Torres Strait Islander Studies, 1st ed, 2005).

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The indigenous people want sovereignty so that it helps in the better recognition of their
diverseness in the culture adopted by them. It would also help them to solve the injustice that is
done to them by other people. The issue of sovereignty now days also continues to rise to a large
extent so that it helps to solve the different issues in the treaty so that it helps both the parties to
solve their issues well. This would help the indigenous people to control the actions of
themselves on their own and also develop the country as a whole. The indigenous people would
no longer think that they are being deprived of their rights of taking control over their own land.
They would also be happy that there rights are fulfilled and they have equal rights in decision-
making as compared to the other citizens of Australia.
The treaty with the indigenous people is different from the proper recognition in the constitution.
The treaty between the indigenous people and the not- indigenous people means that they
formally enter into a negotiation between the concerned parties trying to resolve their problems
and solving their sovereign disputes. The citizens of Australia think that by drafting the
indigenous people would affect the indigenous sovereignty during going in a treaty with them.
This treaty is needed for the development of Australia as a whole. It would help them to
economically boost by going in a treaty with the indigenous people and it would also help to add
to the economy of the country as a whole. The need for the treaty is very much recommended by
the citizens of Australia also as they think that the indigenous people would also come to visit
the country of Australia. The citizens of Australia can also go and interact with the indigenous
people and try to know about their different habitats, their way of living and also the island in
which they live. The indigenous people would also be helped by the treaty that they are not
deprived of any facilities as the other citizens of Australia enjoy in their country.
The treaty with the indigenous people would help both the parties to stay in harmony with one
another and also share their problems in cases of needs15.
The government of Australia should quickly discuss with their members in the government and
discuss the fact of completing the treaty as soon as possible. The government of Australia would
propose to send an invitation to the indigenous people and ask about their views in the treaty.
They should mutually discuss the different matters in the treaty and give the necessary solutions
in details in the treaty.
15 W Grey and Will Sanders, Views From The Top Of The 'Quiet Revolution' (Centre for
Aboriginal Economic Policy Research, 1st ed, 2006).

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They should also agree on a future date for arranging the meeting for the treaty between the two
parties. The treaty would help Australia to create a strong bond within them and also helps to
increase the unity of the nation as a whole.
Reference List
Anne Hall Dick, Family Law (Scotland) Act 1985 (W. Green/Sweet & Maxwell, 1st ed, 2000).
Bonita Meyersfeld and Harold Koh, Domestic Violence And International Law (Hart, 1st ed,
2012).

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James Robertson, "DNA Evidence In The Australian Legal System" (2016) 49 Australian
Journal of Forensic Sciences.
Kelly Barth, Domestic Violence (Greenhaven Press, 1st ed, 2009).
Martin Hinton, Indigenous Australians & The Law (Taylor and Francis, 1st ed, 2012).
Michael D. A Freeman, Domestic Violence (Ashgate, 1st ed, 2010).
Neil Duxbury, The Nature And Authority Of Precedent (Cambridge University Press, 1st ed,
2008).
Nóra Chronowski and Márton Varju, "Two Eras Of Hungarian Constitutionalism: From The
Rule Of Law To Rule By Law" (2016) 8 Hague Journal on the Rule of Law.
Pamela M Pilbeam, The Constitutional Monarchy In France, 1814-48 (Taylor and Francis, 1st
ed, 2014).
Russell Hinchy, The Australian Legal System (Thomson Reuters (Lawbook Co), 1st ed, 2015).
Sean Connolly, Monarchy (Smart Apple Media, 1st ed, 2013).
Sharon Weill, "The Legitimating Role Of The Israeli High Court Of Justice: From Occupation
To Segregation" (2015) 15 Global Jurist.
Shonna L Trench, Latinas Narratives Of Domestic Abuse (John Benjamins Pub., 1st ed, 2003).
Toni Bauman, Whose Benefits? Whose Rights? (Native Title Research Unit, Australian Institute
of Aboriginal and Torres Strait Islander Studies, 1st ed, 2005).
W Grey and Will Sanders, Views From The Top Of The 'Quiet Revolution' (Centre for Aboriginal
Economic Policy Research, 1st ed, 2006).