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Dawn 2022  •  30 March 2022  •  Business, Law & STEM

The Dawn of the Age: New Beginnings for the Legal Industry

Looking for a short history of major changes in the history of the Legal Industry? Check out this article by Georgia!

By Georgia Neaverson
Content Warning: violence, domestic violence, sexual assault, racism
The Dawn of the Age: New Beginnings for the Legal Industry

A plethora of tragedies plagued the 20th century. From World War I to the Great Depression to the Holocaust, the 1900's were bleak in more ways than one. However, as the ancient proverb goes: The darkest hour is just before dawn.

Various political and legal developments throughout the 20th century paved the way towards equality for Australian minority groups, including women, Indigenous Australians, and homosexual people. These developments represented new beginnings for the legal industry – catalysts for social change. While considerable progress remains, each milestone signifies a step in Australia’s journey from darkness to light. 

1934: Tuckiar v The King

Tuckiar v The King is a landmark judgment handed down by the High Court of Australia on 8 November 1934, which shed light on legal ethics and the treatment of Indigenous peoples in the Australian justice system. The case concerned a Yolngu elder, Dhakiyarr (Tuckiar) Wirrpanda, who was found guilty and sentenced to death for the murder of white police constable Albert McColl in the Northern Territory Supreme Court. 

The Supreme Court proceedings were rife with procedural injustices: 

  • Dhakiyarr was not permitted to testify;

  • The defence counsel appeared “more concerned with protecting Constable McColl’s reputation than ensuring that Tuckiar had a fair trial”;

  • The police tracker doubled as the interpreter. 

Drawing international attention to the plight of Indigenous peoples in the Australian justice system, Dhakiyarr’s case became the first of its kind to be heard in the High Court. The High Court unanimously found a miscarriage of justice and quashed Dhakiyarr’s conviction on appeal. There is a grim epilogue to the story – Dhakiyarr disappeared shortly after his release from Fannie Bay Gaol, and his fate remains unknown. Despite this, the case was monumental in affirming the right of Indigenous Australians to a fair trial. 

1941: The Equal Pay principle

Although women’s groups campaigned for equal pay from the early 1900's, it was not until the Council of Action on Equal Pay in 1938 that times began to change. The Council, led by socialist feminists Muriel Heagney and Jessie Street, sought to combat sexism in the workplace and broader society. 

The push for equal pay was further accelerated during the early years of World War II. As an influx of men joined the military, the door opened for women to begin working in traditionally male industries, such as engineering and manufacturing. Following this shift, in April 1941, the Australasian Council of Trade Unions announced the following motion:

The conference affirms the right of women to earn their living in industry, the professions and the public service and demands for all workers the legal right to equal occupational rates based on the nature of the job and not the sex of workers.

Prime Minister John Curtin subsequently announced the Labour Government’s support for the employment of female workers in historically male occupations but clarified that this was “for the duration of the war” only. It would not be until 1969 that the Conciliation and Arbitration Commission would accept the principle of “equal pay for equal work”. Even then, the principle only applied to women employed in predominantly male areas – benefitting less than 20% of working women at the time. 

1948: Universal Declaration of Human Rights

On 10 December 1948, during its third session, the United Nations passed the Universal Declaration of Human Rights. Born out of the experiences of World War II, the Universal Declaration is a statement of inalienable human rights to be enjoyed by all individuals. It provides for civil, political, economic, social and cultural rights, including the right to life, free speech, privacy, health and education. 

Australia was intrinsically involved in the creation and development of the declaration. It was one of eight nations involved in the declaration’s drafting, and one of 48 nations to vote in favour. Further, Australian Foreign Minister and Attorney-General Dr Herbert Vere Evatt oversaw the declaration’s adoption during his tenure as President of the UN General Assembly. Dr HV Evatt was a renowned champion of civil liberties and reportedly predicted that millions of people worldwide would turn to the declaration for “help, guidance and inspiration”. 

Since the adoption of the Universal Declaration, Australia has shown its continued support for human rights, ratifying almost all major human rights instruments to date. 

1975: Racial Discrimination Act and Criminal Law (Sexual Offences) Amendment Act

1975 was a year of social change in Australia. In June 1975, the Whitlam government introduced the Racial Discrimination Act, which criminalised discrimination based on race, colour, nationality or ethnic origin. By the close of the 20th century, the Australian Human Rights Commission had received over 10,500 complaints, including 4000 from people from non-English speaking backgrounds and 3,500 from Aboriginal and Torres Strait Islander peoples. 

Further, 1975 saw South Australia become the first Australian state to fully decriminalise consensual homosexual acts, with the introduction of the Criminal Law (Sexual Offences) Amendment Act. The legislation came three years after the 1972 murder of homosexual academic Dr George Duncan at Adelaide’s Torrens River, which drew awareness to violence against homosexual people and resulted in a demand for law reform by parliamentarians and lobby groups. The amendment abolished several sexual “offences” and equalised the age of consent for hetero- and homo-sexual activity. 

Following South Australia’s example, legislation equalising hetero- and homo-sexual acts was passed in the Australian Capital Territory (1985), Queensland (1990), Tasmania (1997), Western Australia (2002), New South Wales (2003) and the Northern Territory (2003). 

1976: Aboriginal Land Rights (Northern Territory) Act

In 1973, Prime Minister Gough Whitlam appointed Justice Edward Woodward to head the Aboriginal Land Rights Commission and explore appropriate ways to acknowledge Indigenous land rights in the Northern Territory. The Commission recommended a process for First Nations peoples to claim land and stipulated that such areas should be held under “inalienable freehold title” – barring them from being bought, acquired or mortgaged. 

However, before the new Bill could pass through parliament, the Whitlam government was dismissed during the 1975 constitutional crisis. Fortunately, with historic bipartisan support, the Fraser government passed the Aboriginal Land Rights (Northern Territory) Act in December 1976, the first piece of legislation to recognise Indigenous title of land in Australia. The Act allowed First Nations peoples to claim title to land if they could show “traditional and historical association” with an area. Today, approximately 50% of the Northern Territory and 85% of its coastline is recognised as Aboriginal land. Further, Indigenous land rights and interests are now formally recognised across approximately 40% of Australia’s landmass.  

1987: Crimes (Family Violence) Act

For hundreds of years, many acts of violence against women were not criminalised by Australian legislation. There was a common belief that husbands were permitted to “chastise” their wives’ behaviour. It was not until the 1970's that feminist scholars brought public awareness to the physical, emotional and sexual violence experienced by Australian women. The once hidden domestic violence gradually evolved into the complex criminal offence it is today.  

The 1980's saw an expansion of legal protections offered to victims of domestic violence. In 1985, the Crimes (Amendment) Act criminalised rape in marriage – almost 250 years after Sir Matthew Hale stated that a husband could not be guilty of raping his wife “for their mutual matrimonial consent and contract the wife hath given herself in this kind to her husband which she cannot retract.” Moreover, in 1987, the Crimes (Family Violence) Act was introduced to expand legal protection for domestic violence and child abuse victims, providing for restraining orders against perpetrators. 

Today, Australian domestic violence legislation covers a variety of personal relationships, including couples of the opposite or same gender and those who are engaged, in a de facto relationship, or married. The type of harm constituting domestic violence has also expanded to include social, verbal and spiritual abuse, as well as psychological and economic harm. 

However, despite increased legislative protection over the past 40 years, domestic violence is still disturbingly prevalent in Australian society. Data from the Australian Institute of Health and Welfare shows that one in six women have experienced physical or sexual partner violence, and one in four women have experienced emotional partner violence, since the age of 15. 

The 20th century was a period of economic, political and social reform in Australia. Legislative change acknowledged several minority group rights, including the right to equal pay, the right to claim land, and the right to be free from discrimination. However, although each event paved the way toward equality, equality is not yet synonymous with reality. Thus, moving forward, the persistent progression of social attitudes is vital for Australia to truly realise its potential as a fair and just society. 

Every sunset brings the promise of a new dawn.

References

(1934) 52 CLR 335.

National Archives of Australia, ‘Yolgnu Elder Dhakiyarr Wirrpanda – High Court case,’ NAA (online) https://www.naa.gov.au/learn/learning-resources/learning-resource-themes/first-australians/history/yolgnu-elder-dhakiyarr-wirrpanda-high-court-case.

The Honourable Justice Virginia Bell, ‘2008 Law and Justice Address’ (Speech, Justice Awards, 29 October 2008). 

Mickey Dewer, ‘Dhakiyarr Wirrpanda (1900-1934),’ Australian Dictionary of Biography (online, 2006) https://adb.anu.edu.au/biography/dhakiyarr-wirrpanda-12885.

National Archives of Australia, ‘Yolgnu Elder Dhakiyarr Wirrpanda – High Court case,’ NAA (online) https://www.naa.gov.au/learn/learning-resources/learning-resource-themes/first-australians/history/yolgnu-elder-dhakiyarr-wirrpanda-high-court-case.

Margaret Anderson, ‘The Question of Equal Pay,’ Old Treasury Building (online) https://www.oldtreasurybuilding.org.au/work-for-victory/equal-pay/

Museum of Australian Democracy, ‘Milestones in Australian Democracy,’ Museum of Australian Democracy (online) https://explore.moadoph.gov.au/timelines/milestones-in-australian-democracy.

Ibid. 

Australian Human Rights Commission, ‘What is the Universal Declaration of Human Rights?’ Australian Human Rights Commission (online) https://humanrights.gov.au/our-work/what-universal-declaration-human-rights.

Leonora Risse, ’50 years after Australia’s historic “equal pay” decision, the legacy of “women’s work” remains,’ The Conversation (online, 19 June 2019) https://theconversation.com/50-years-after-australias-historic-equal-pay-decision-the-legacy-of-womens-work-remains-118761. 

Barry York, ‘40th Anniversary of Decriminalisation of Homosexuality,’ Museum of Australian Democracy (online, 27 August 2015) https://www.moadoph.gov.au/blog/40th-anniversary-of-decriminalisation-of-homosexuality/.

National Museum of Australia, ‘1976: Australian Government passes Aboriginal Land Rights (Northern Territory) Act,’ National Museum of Australia (online) https://www.nma.gov.au/defining-moments/resources/aboriginal-land-rights-act.

National Indigenous Australians Agency, ‘Land and Housing,’ Australian Government (online) https://www.niaa.gov.au/indigenous-affairs/land-and-housing.

Terry Goldsworthy & Matthew Raj, ‘Out of the Shadows: The Rise of Domestic Violence in Australia,’ The Conversation (online, 4 August 2014) https://theconversation.com/out-of-the-shadows-the-rise-of-domestic-violence-in-australia-29280

Australian Women’s History Network, ‘Rape in marriage: Why was it so had to criminalise sexual violence?’ Australian Women’s History Network (online, 7 December 2016) http://www.auswhn.org.au/blog/marital-rape/.

Museum of Australian Democracy, ‘Milestones in Australian Democracy,’ Museum of Australian Democracy (online) https://explore.moadoph.gov.au/timelines/milestones-in-australian-democracy.

Terry Goldsworthy & Matthew Raj, ‘Out of the Shadows: The Rise of Domestic Violence in Australia,’ The Conversation (online, 4 August 2014) https://theconversation.com/out-of-the-shadows-the-rise-of-domestic-violence-in-australia-29280.

Australian Institute of Health and Welfare, ‘Family, domestic and sexual violence,’ Australian Government (online, 16 September 2021) https://www.aihw.gov.au/reports/australias-welfare/family-domestic-and-sexual-violence.

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