1.5: History of Law in Australia: The Common Law Comes to Australia

Pre-Colonial & International Law Context

• Dominant Modes of Acquiring Territory in Public International Law (late $18^{th}$ century) Three ways which were…

  • Conquest → military force, subjugation.

  • Cession → transfer by treaty.

  • Occupation of terra nullius (meaning land belonging to no one)→ taking possession of land regarded as vacant.

• British Comparison of Legal Systems

  • Britain: formal, written, statute-based + judge-made common law.

  • Australia’s First Peoples: at least $40{,}000$ years of sophisticated customary law, transmitted orally via story, song, ritual.

Indigenous Customary Law (Detailed Features & Significance)

• Rules on interpersonal relations (e.g.

  • Who may speak to whom.

  • Spatial protocols—who may be in the same place.

• Regulation of:

  • Marriage.

  • Travel within Country.

  • Access to different layers of cultural knowledge.

• Significance

  • Demonstrates political sovereignty and social order pre-contact.

  • Ethical issue: British dismissal highlights Eurocentric legal bias → ongoing debates on recognition of Indigenous law.

$1788$—First Fleet & the Doctrine of Terra Nullius

• British settlers encountered inhabited land but legally characterised it as land belonging to no one.

• Rationale:

  • Oral nature of First Nations’ law ≠ British “identifiable” criteria.

  • Easier route under international law: treat as settled rather than conquered → automatic reception of British law.

• Long-term Implications

  • Fast-tracked imposition of British sovereignty & legal institutions.

  • Laid foundation for later land-rights litigation (e.g. $Mabo$ overturning terra nullius in $1992$—connection to future coursework).

Reception of English Law (Privy Council in Cooper v Stuart $1889$)

• Privy Council quote: “In the eyes of the common law, Australia had been settled.”

• Practical outcome: English common law arrived with the convicts and the flag.

• English Parliament legislated for colonies until local institutions formed.

Foundational Imperial Statutes ($1823$–$1850$)

• New South Wales Act $1823$

  • Created Supreme Courts of NSW & Van Diemen’s Land (Tasmania).

  • Recognised them as Courts of Record.

  • Allowed Crown (via Secretary of State) to appoint $5$–$7$ Legislative Council members → direct monarchical influence.

• Australian Courts Act $1828$

  • Extended Supreme Court jurisdiction to all civil & criminal matters.

  • Established inferior courts.

  • In particular Section $24$ reception clause: English laws “in force at the time of passing” apply so far as practicable. This provision made it clear that the legislation and common law that is enforced within England would also apply in the courts of New South Wales and Tasmania, demonstrating the very strong legal ties between England and the Australian colonies.

• Australian Constitution Act No. $1$ ($1842$)

  • Blueprint for parliamentary structure.

  • Two-thirds of NSW Legislative Council to be elected; one-third Crown-nominated.

• Australian Constitution Act No. $2$ ($1850$)

  • Introduced Westminster-style responsible government.

  • Colonies empowered to draft and write their own constitutions, subject to Royal Assent. The process where the colonies could create their own legislative frameworks marked a significant shift in governance, allowing for greater local autonomy and representation.

Colonial Self-Government & the Colonial Laws Validity Act $1865$

• Purpose: clarify that properly enacted colonial statutes are valid, even if inconsistent with later UK laws, unless UK law specifically applied to colony.

• Colonial legislatures & courts had to align with broad British justice ideals while meeting local needs.

Rise of Federation Movement ($1891$ –$1900$)

• Sydney Convention $1891$ drafts first Federal Constitution Bill → insufficient support but movement survives.

• Convention Series $1897$ –$1898$ (Adelaide, Sydney, Melbourne)

  • Produced revised bill → put to referenda.

  • Outcomes:

  • Passed in Victoria, South Australia, Tasmania.

  • Insufficient majority in NSW → amendments.

  • Queensland joins process; Western Australia initially abstains.

• Imperial Passage: Constitution Bill sent to London → Commonwealth of Australia Constitution Act $1900$ gains Royal Assent (Queen Victoria, $9$ September) → Commences $1$ January $1901$.

Core Features of the Australian Constitution

• Separation of Powers entrenched in Chapters $I$–$III$ (Legislature, Executive, Judiciary).

• Responsible Government: executive drawn from & accountable to Parliament.

• Federal Division of Powers: specific vs residual competencies between Commonwealth & six states.

Post-Federation Ties to the UK

• UK Parliament retained authority to legislate for Australia.

• Ultimate appellate court = Privy Council, not High Court of Australia.

• Highlighted lingering colonial dependency despite political federation.

In a legal context, "appellate" refers to the power of a higher court to review decisions made by lower courts. This review typically aims to identify any legal errors from the original trial or proceeding.

Legislative Severance from the UK

• Statute of Westminster $1931$ (UK)

  • UK to legislate for Dominions only on request and consent.

  • Commonwealth supremacy over conflicting UK legislation (unless request made).

  • Australia delayed adoption until $1942$ (back-dated to $3$ September $1939$ for WW II unity reason—historical nuance often examined).

• Australia Act $1986$ (Commonwealth & UK)

  • Section $1$: terminated UK Parliament’s power to legislate for Australia.

  • Section $11$: abolished all Privy Council appeals → High Court = final appellate body.

  • Symbolic & practical completion of legal independence.

Enduring Legacy in Contemporary Legal Education

• British case law still cited due to:

  • Common law heritage from settlement.

  • Privy Council jurisdiction up to $1986$.

• Ethical & philosophical reflection:

  • Ongoing debates on recognition of Aboriginal & Torres Strait Islander law.

  • Constitutional reform proposals (e.g. Voice to Parliament) linked to initial denial of sovereignty.

• Practical skill: students expected to trace historical statutes, understand precedent hierarchy, and contextualise UK authorities in modern Australian jurisprudence.

Summary

1. The British claimed Australia as terra nullius (land belonging to no one) in 1788, despite sophisticated Indigenous customary law. This decision, based on Eurocentric biases, deemed Australia 'settled' rather than 'conquered,' allowing automatic application of British law.

2. Early British statutes (from the 1820s to 1850s) gradually established British legal institutions and laid the groundwork for self-government. This included creating Supreme Courts and introducing representative and responsible parliamentary structures.

3. Australia federated in 1901, creating its own Constitution with a separation of powers and a federal system. However, significant legal ties to the UK remained, including the UK Parliament's power to legislate for Australia and the Privy Council in London as the highest court of appeal.

4. Full legal independence from the UK was a gradual process, culminating in the Australia Act of 1986. This Act severed the UK Parliament's legislative authority over Australia and abolished all appeals to the Privy Council, making the High Court of Australia the final appellate body.