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McKenna, Terence --- "Tradition and Change in Australian Law by Patrick Parkinson" [2001] AltLawJl 40; (2001) 26(2) Alternative Law Journal 104


Tradition and Change in Australian Law

by Patrick Parkinson; LBC Information Services,2nd edition,2001; 265 pp; $65 softcover.

Australia still bears indelibly the marks of its birth - not only in relation to indigenous issues as a result of invasion but also through the arrival of received traditions of legal and political institutions. Austrialia del Espiritu Santo took over 200 years to give up legal fictions to reach spiritual growth, so a dialogue with the past is essential to understand how we got to 'here and now'.

Patrick Parkinson (Professor of Law at the University of Sydney) has provided a unique and concise history of the law and legal ideas that arrived on English ships in 1788. To understand what arrived, it is necessary to delve into the development of the Western legal tradition, and Parkinson has given us a most readable text, with plenty of endnotes for scholars.

Areas covered range from the Westem idea of law, the development of the common law, equity and statute law, the Westminster system of government, and our path to legal independence.

Particular attention is paid to the future of Australian law. The first issue to be canvassed is accommodating diversity so that we have a legal system for all, taking into account the diversity of the population and protecting every­ body's rights. 'The notion that the legal system should be the means by which social chance is affected is also a peculiarly western idea' (p.220). The challenges of inclusion must be met, as our population is no longer homogenous, making the law more accessible and fairer to all in the age of multiculturalism.

Parkinson next turns to the problem of reconciliation of the Indigenous with the white majority, giving a short history since 1788. Much needs to be done to erase the legacy of bittemess and suspicion. As Elliott Johnston QC said about the National Report of the Royal Commission into Aboriginal Deaths in Custody in 1991, 'Aboriginal people have a unique history of being ordered, controlled, and monitored by the State'. It was our legal system that provided the framework for the creation of the 'stolen generation', as well as the destruction of ATSI families and culture. Now the legacy of the past is being exacerbated by mandatory sentencing in some States.

Leaving aside the question of an apology for past wrongs, Parkinson suggests that land and coastal water rights remain foremost in the reconciliation process, as too recognition of Aboriginal customary law and self determination. These issues may have set the agenda for the 21st century.

Parkinson also notes that the law has also provided a framework for the exclusion of women from public life, and from many types of employment, so that they are sublimated to a minority status. But then most Australians belong to minorities now.

Parkinson observes that the legal system has had to adapt to the needs of children - the awareness of the extent of child sexual assault has led to an increased number of prosecutions as well as a reduction in the age at which children might be called to give evidence (p.223). Evidence can now be given through pre-recorded video taping in most jurisdictions, and this in turn has had a bearing on the court process.

Other areas in which Parkinson looks to the future include some aspects of multiculturalism, access to justice, reducing legal costs, contingency fees, and legal aid. But the concept of legislation as a social justice strategy may remain utopian in a land that has eleven Court systems for 18 million people, each with its own rules, registries, and judges, as well as each State and Territory having its own legislatures. And the High Court in Re Wakim has made life more interesting in the court system, at least in the diversity of solutions.

If I were to make one criticism of this work it would be that little or no real consideration has been given to an aspect of multiculturalism which I believe will become important in the next few years -freedom of religion and belief, which is now being discussed in Victoria as a result of the Brack's government issue of a discussion paper and model Bill on racial and religious tolerance.

An excellent book, readable, and engaging.


Terence McKenna teaches at St Marks National Theological Centre Canberra and is a freelance writer.

© 2001 Terence McKenna


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