The Hon Justice Michael Kirby AC CMG*

Dynamic global forces

Australia and China are friends. Our peoples each have responsibility for large portions of the earth's surface. China's population is huge; Australia's is quite small. Our respective histories have been very different. Our legal systems are different. Yet a number of forces are drawing us together. These forces include:

                 The dynamic of international and regional trade;

                 The impetus of the worldwide movement to respect and protect the human rights of all peoples on our planet;

                 The imperatives, in the nuclear age, to promote peace and security and to avoid conflict;

                 The amazing advances in telecommunications that make the world now so inter-connected;

                 The many great problems of humanity that can only be solved by international cooperation, such as the spread of HIV/AIDS into every corner of the world, the proliferation of illicit drug dependance and drug use; and

                 The challenge of destructive terrorism to established legal authority.

In these circumstances, it is natural that our two countries should want to get to know more about each other. One aspect of this development is the growing interest in the legal systems of China and Australia.

In the beginning

The Aboriginal people who inhabited the Australian continent for thousands of years before the European settlers came, had a developed system of laws. However, they were not written down. They were passed from one generation to another orally. At first, the European settlers gave no recognition to these legal systems. Most importantly, they did not recognise the rights of the Aboriginal and other indigenous peoples to the possession of their traditional lands. Only in the past two decades have moves been taken to rectify the injustice involved in this approach.

In part, the rectification arose out of a series of important decisions of Australia's highest Court, the High Court of Australia. I am a member of that Court. In part, the rectification has followed from legislation enacted by Federal, State and Territory parliaments in Australia following official enquiries. Other steps have been taken to give special protections to the indigenous Aboriginal people. Much remains to be done. No legal system is perfect, including Australia's. In very many countries of the world, indigenous minorities have been neglected and ignored. Only in recent times, under the stimulus of international and local scrutiny, has legal change come about.

The first settlement of British colonists arrived in Australia in January 1788. They brought with them the common law of England. Soon after the foundation of the colonies, local elected parliaments were set up to make laws for the colonial people. Excluded from those parliaments were the indigenous people and "non-white" migrants, such as the overseas Chinese who had come to Australia in the 19th century in search of gold. Furthermore, women were not able to vote in the elections until nearly the end of the 19th century. No woman was elected to an Australian parliament until the 1920s.

The Australian common law and its strengths

Yet despite these faults, it can be seen that very soon after the establishment of the Australian colonies, a highly sophisticated and developed legal system was put in place. Its elements included:

                 Common law made by local judges derived from reasonable principles originally established by the judiciary in England;

                 Statute law made by the British Parliament, soon supplemented and ultimately replaced by such laws made by the Australian colonial parliaments; and

                 Subordinate laws made by imperial and local officials in accordance with powers granted to them under the parliamentary legislation.

Advantages of the common law system

The common law system must seem somewhat "messy" to those who are used to having all laws written down in general codified systems. Australia is, in this sense, a member of the family of common law nations. Whilst the legal systems of such nations sometimes seem unclear to outsiders, in practice the system works reasonably well. It has several advantages:

                 There is never a gap in the law. If there is no written or legislative rule governing a case, it is left to the judges to develop a new rule by analogous reasoning, based on previous case decisions ("precedents");

                 The judges who are entrusted with this power have a high measure of respect, status and independence. They hold office, generally, until a fixed retiring age (normally 70 years). They can only be removed from office by an exceptional vote of both Houses of Parliament for proved incapacity or misconduct in office. In a hundred years not a single federal judge has been removed from office in Australia. In the last century only one State judge was so removed. This tenure and independence, inherited from Britain, is a important protection to the integrity of judicial decisions and their freedom from the pressures and influences of powerful interests;

                 Furthermore, the judges are uncorrupted. Their decisions are respected and upheld by the people and the government. Once appointed, they withdraw completely from political association. Their job includes upholding the Constitution and the laws against politicians, companies, trade unions or individuals.

                 The common law which the judges administer also has a bias towards upholding the civil rights of individuals. Although Australia does not have, as such, a formal bill of rights in its Constitution, there is a firm principle, devised by the judges, that ambiguity in the Constitution and written legislation are construed in favour of established individual rights. The judges are independent from prosecutors. Serious criminal trials are normally conducted before a jury of twelve citizens who reach their verdict in private and themselves constitute a protection against oppression and tyranny. Ordinarily, their verdicts must be unanimous.

Defects in the common law system

I would not, by these words, want it to be thought that the Australian legal system is without flaws. Like the legal system of every country, it has defects and weaknesses. Amongst the most significant of these are:

                 The past, and still some present, defects in the laws defining and upholding the rights of indigenous peoples;

                 Defects in the laws protecting minorities;

                 The expense of securing a private lawyer to provide representation in court and the consequent need of many people, in a complex legal system, to represent themselves in court. This has the inevitable disadvantage, in most cases, that they are not familiar with all of the applicable laws and find it hard to do justice to their cases; and

                 The slow pace of law reform and the difficulty of securing the attention of various parliaments, Federal, State and Territory, to the removal of injustices that exist in the law and that affect the lives of ordinary people.

Constitutionalism and justice

Nevertheless, it can be said that, in the courts, the Australian legal system normally reaches conclusions that are predictable and just. Virtually without exception, such decisions are unaffected by political influence or monetary corruption. The Australian legal profession is itself skilled and independent. Lawyers are expected to fight courageously and with professionalism for their clients' interests. Decision-makers, in all courts and tribunals, must not only be competent, independent and impartial. They must also appear to be so to the eyes of a reasonable observer.

The rule of law and of constitutionalism is extremely strong in Australia. Often the courts uphold the rights of minorities. Thus, when in 1951 the Australian Federal Parliament enacted a law to restrict the civil rights of communists, who were most unpopular in Australia at that time, the High Court of Australia struck down the law as incompatible with the Constitution. The decision was accepted by the government and the people. Indeed, an attempt to change the Constitution to overcome the decision was rejected by the referendum process that is necessary in Australia to change the national Constitution.

In my own lifetime, I have seen important advances in justice under law in Australia. The rights of Aboriginal Australians under the law have definitely been improved. So have the rights of women. The White Australia policy, and the laws which supported it, have been abolished. Many of the laws that previously oppressed homosexuals have been repealed. Federal and State laws have been enacted to protect people from discrimination on the grounds of race, sex, childhood, age and other irrelevant considerations. Law reform commissions, federal and State, have been established to help the democratically elected parliaments to keep the law up to date. Law is administered in courts that are virtually always open to all people. Judicial decisions are subject to criticism and commentary in the media. They are not immune from criticism. The media itself has a constitutionally protected right to discuss matters, including law, relevant to the proper operation of the representative democracy established by the Constitution.

Describing a nation's laws

It takes a lifetime to really understand any country's legal system. Even then, there will be aspects of the law that are unknown to a judge in the country's highest court. To write a book explaining the legal system of any country to people in another country, is therefore a very brave endeavour. To explain a legal system fully would require many books and a huge amount of detail. But to set out the main features of a legal system, so that others might understand its general character, its strengths and its weaknesses is a valuable exercise.

True friendship rests on knowledge. That is why Mr Jiang is to be congratulated for his endeavour with this book. As a lawyer and a judge I send greetings to those colleagues in China who may read this book and these words of mine. As an Australian, I send good wishes to the Chinese brothers and sisters who will read of the law of my country. But as one human being to another I give the reader of these words this admonition. Law everywhere is only good if it is conducive to upholding the human rights and the individual dignity of the people subject to it. Human rights and dignity bind us together - in Australia, China and everywhere else. We are one species. The differences in the human genome are infinitesimally small. We live in a dangerous but exciting world. It is the duty of lawyers to contribute to the building of law. We must explain the importance of the observance of the Constitution and the conventions and principles that help it to operate with justice. Law alone is not enough. Laws and practices that oppress and are unjust constitute an affront to human beings.

In the 21st century we must ensure that the legal systems of all nations conform to constitutionalism. But we must also make sure that they comply with the universal principles of human rights and human dignity that we all share.

Michael Kirby


18 March 2002

* Justice of the High Court of Australia.