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Graduation Ceremony, Foreign Law Program, University of Münster
 1 February 2009

Address by H.E. Ian Kemish AM

"Australia and the Law: An Historical Journey"

Sehr geehrter Herr Dekan,
liebe Absolventinnen, liebe Absolventen,
meine sehr geehrten Damen und Herren!

Es freut mich, in Münster zu sein.

Es ist ein schöner Anlass für mich, heute bei dieser Zertifikatsverleihung mitfeiern zu können.

Ich gratuliere den Absolventen recht herzlich.

Ladies and gentlemen, respect for the rule of law is one of the many things that unite my country and Germany, and give us a similar perspective on global affairs.

We are united on so many things. More than one thousand Australian soldiers are working in Afghanistan to promote peace, security and justice for the people of that country, along with almost four thousand members of the Bundeswehr.

In the United Nations we work together on countless issues from nuclear disarmament to the promotion of human rights.

Australia and Germany consult closely and work together on development projects across South-East Asia. We rebuilt together the hospital in Banda Aceh after the devastation of the Tsunami in 2004.

No matter the field of joint endeavor, we find that we share assumptions about what is wrong and what is right. This reflects in turn a common understanding about the rights and responsibilities of individuals and society. Underlying this is an assumption that the rule of law, not man, should be supreme.

This commonality of thinking is remarkable because our legal traditions are far from the same. In Australia the legal system grew out of the English Common Law tradition. The Australian constitutional structure is a federal system of government – like, but not the same as, that of Germany. It drew just as heavily on the experience of the United States of America as it did on British political experience.

Our broader historical journeys have also been very different.

Australia is often described in Europe as the New World.

But this description overlooks at least 65,000 years of continuous human history. The history of the Australian Aborigines is no less a history for not being recorded in ways that are easily understood by modern society.

In traditional Aboriginal society children grew up accepting the Law unquestioningly.

The legal system did not distinguish between the physical and spiritual universes. The Law governed the observance of sacred ritual and economic activity: it maintained social order and dictated the order of everyday life. It was highly practical, representing the accumulated wisdom of hundreds of generations.

Nor did the Law distinguish between humans and the land. To the Aborigines humans were a product of the environment and could not be distinguished from it. To say that an individual owned a piece of land was simply laughable – you might as well say that you owned the sky and the clouds.

Europeans first set foot on Australian soil in the early 17th century. They were from nearby Holland, and here in Europe the Protestant Union and Catholic League were being formed, laying the ground for the Thirty Years War – the conflict that came to an end in this city of Münster. But it was to be another two hundred years before European settlement began.

Try to put yourself in the position of the Australian continent’s original inhabitants, watching British convicts and soldiers arrive on the shore of Sydney Harbour in 1788. In the Aborigines perspective this was the New World that had arrived, and it would only lead to grief.

The clash of cultures that followed had a devastating impact on the Aborigines, threatening their very survival.

The Law was at the centre of this clash. Australia was legally declared by the British to be Terra Nullius – vacant land. To the extent that the Aborigines traditional rights were understood, they were ignored. The Europeans’ disregard for the all-important traditional connection between the Aborigines and the land deprived the first Australians of their rights, leading to an historic injustice that lasted more than two hundred years.

It was British law that had been behind the decision to send a fleet of ships out from England to the other side of the world. A harsh penal system combined with high rates of petty crime in an England where social dislocation and poverty were the by-products of industrial revolution. The jails were full, and the recent revolution in the American colonies meant that a new dumping ground had to be found.

The convicts – our first migrants – are often mentioned by foreigners with an embarrassed smile, or even a superior tone. Or sometimes they are not mentioned at all. Each of these approaches misjudges how we Australians feel about the matter. We regard the role of the convicts in our historical narrative as a matter of great pride. We think it is wonderful that the outcasts of one society – often guilty of nothing more than the theft of food to prevent starvation – were able to build the foundations of a just, prosperous and open society.

The miracle became apparent from early on. Enlightened governors allowed convicts to participate fully in the development of the community once they had done their time. Free settlers began to arrive in enormous numbers from the early 19th century, attracted by the opportunity to make a fresh start in a more egalitarian society, and to improve the lives of their families. It is a story that continues to this day – 200,000 migrants will arrive on our shores this year.

Germans were among the early arrivals. In fact according to a census taken in 1901 German was the second language of Australia. They came to South Australia in the early 1830s and planted the seeds of a successful wine industry. Lutheran missionaries came to my home town of Brisbane at around the same time, establishing themselves in an area of town we now call, in our Australian English, “Nundah”. The missionaries pronounced it differently: when they arrived they said “Wir sind nun da”. Few of you would have heard of Ludwig Leichhardt from the Spreewald region near Berlin. But in Australia he is a household name. One of the great explorers of the Australian interior, he died trying to cross the continent.

Representative government and law-making powers were steadily and progressively taken on by the Australians themselves. There were moments of great enlightenment, when the colony of South Australia became the first jurisdiction in history to give women the right to vote, decades before it became even thinkable in Europe.

Modern Australia came into being on the first day of the 20th century with the creation of the Australian Commonwealth, a federation of six states and one principal mainland territory. At the centre of this structure was a High Court to rule no constitutional issues. It was this court, established by the Australians themselves, which decades later would begin to right the injustice done to the Aboriginal people.

While they were committed to self-governance, the fathers of modern Australia saw themselves as the guardians of British culture. They would not recognize the Australia of today, a country in which one in four were born in foreign lands, where almost half the population have at least one foreign-born parent, where Australians of Asian and African heritage stand shoulder to shoulder with those from Europe.

For the dominant theme of 20th century Australia has been immigration. Consider these simple statistics. Australia has a population of 21 million people. 6.5 million people have come to Australia as migrants or refugees since World War Two.

They have come from the displaced persons camps of post-war Europe, from the Baltic countries, Greece and Italy, from war-torn Vietnam and Lebanon, from the refugee camps of Cambodia and Indonesia. They have come in the belief that their new home is a place where justice and the rule of law are available to all.

Not quite to all, or at least not until recently. Justice was a long time coming for the Aboriginal people of Australia, who only received full citizenship in the 1960s. And then in the 1980s one indigenous Australian – Eddie Mabo from north Queensland - took his grievance to the High Court, challenging it to recognize him as the legal owner of his tribe’s traditional lands.

And it did. In a landmark decision the High Court recognised Eddie Mabo’s land rights, declared that native title existed, and threw out the concept of Terra Nullius. In our Common Law tradition this one decision had far-reaching impact.

This was an important moment on the path to Reconciliation, a path that culminated last February in the historic formal apology extended by the Australian Government and Parliament to the Aboriginal people.

Meine Damen und Herren, die Entschuldigung war ein emotionaler Moment. Ganz Australien versammelte sich vor dem Fernseher, als die historischen Worte von Prime Minister Kevin Rudd gesprochen wurden. Die Leute jubilierten und lagen sich in den Armen. Es war ein wichtiger Schritt, aber es liegen noch viele Aufgaben vor uns.

And you, today’s graduates, have many challenges ahead of you too, in your professional lives. I hope that in some small way you will gain inspiration from our story – one in which the law has played a central role in building a society that can now truly say it is dedicated to justice for all.

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