Australian Legal System Fundamentals

Australian Legal System Fundamentals

• The fundamentals of the Australian legal system include the relationship between British settlers and First Nations Australians
• Institutions and history have shaped law content and administration
• Various aspects of the Australian legal landscape and key concepts of the legal system are also fundamental

Key Words

• Common Law
• Equity
• Adversarial system
• Australian Constitution
• Victorian Charter of Human Rights and Responsibilities

Key Questions

• When and how English law was received in Australia
• What First Nations Peoples Customary Law is
• Whether Australia was conquered, ceded, or settled
• What the Doctrine of Terra Nullius is

Australia's Legal System

• Australia's legal system is based on English common law, received in 1788 with British 'settlement'

Colonial Courts and Legislatures

• Independent colonial courts and parliaments were established.
• They were modeled on the Westminster system

Federation (1901)

• The Australian Constitution created a federal system
• Australia remained under British oversight

Full Independence

• Achieved through the Statute of Westminster (1931) and the Australia Act (1986)

First Nations Customary Law

• First Nations Australians' customary law existed for over 60,000 years
• It was ignored, leading to systemic inequality.
• There were ongoing calls for recognition of Indigenous legal traditions

Transportation and Settlement

• 1717 IMPERIAL PARLIAMENT passed a STATUTE allowing prisoners to be exported to commute their sentences
• 21/01/1788, Australia was settled as a PENAL OUTPOST
• 1840-1868, Australian States progressively discontinued importing prisoners
• Resultant military administration and penal law affected the development of Australian law and administration
• Colonization of Australia was deemed legal under International Law, which allowed conquest, cession, or settlement

Blackstone's Formulation

• Conquest/Cession: Existing laws retained unless altered
• Settlement: Existing laws were ignored, as the land was treated as uninhabited or without recognized legal systems

Doctrine of Terra Nullius

• Terra nullius (Latin for "land belonging to no one") was a legal doctrine used to justify British colonization of Australia
• It did so by claiming the land was uninhabited or lacked recognizable systems of law, agriculture, or politics, ignoring Indigenous Australians
• Cooper v Stuart (1889) saw the Judicial Committee of Privy Council uphold this doctrine, stating Australia was "settled"
• The decision reinforced the denial of Indigenous land rights until later legal challenges

Reception of English Law

• The 1828 Australian Courts Act formalized the application of English law in Australia
• It had limitations, including an outdated view of judicial law-making
• Australian courts were subordinate to British authority
• These issues were later addressed as Australia moved toward full legal independence

1828 Australian Courts Act:

• Passed by the Imperial Parliament (British Parliament), stating that all English laws and statutes in force at the time applied in Australia, provided they were suitable to local conditions
• Australian Supreme Courts were responsible for determining which English laws were applicable in Australia

Legislative Authority

• The Imperial Parliament could pass new legislation for Australia, ensuring that English common law continued to evolve and apply
• The regular British Parliament (not the Imperial Parliament) could not legislate for Australia

Problems with the Australian Courts Act

• Judicial Role: The Act assumed that judges merely "discovered" common law rather than actively creating or adapting it, overlooking the dynamic nature of judicial decision-making
• Authority: The Act implied that the British Apex/Supreme Court (e.g., the Privy Council) remained the ultimate legal authority over Australia, undermining the development of an independent Australian legal system

Evolution of an Independent Legislature

• From autocratic rule under early Governors to the establishment of responsible government and federation, these milestones reflect the gradual transition of Australia to a democratic, self-governing nation

Key Effects of Legislative Evolution

• Judicial Independence: The judiciary was freed from military and executive interference, aligning with English common law principles
• Trial by Jury: Introduced as a fundamental right, reflecting democratic values
• Foundation for Modern Courts: The colonial court structure evolved into today's system, balancing state and federal jurisdictions

1788 – Arrival of British Colonization

• The Governor of New South Wales held virtually all political power, similar to early English monarchs, with minimal constraints from advisory bodies

1823 – New South Wales Act

• A Legislative Council (5–7 Crown-nominated members) was created to advise the Governor on laws
• An independent Supreme Court was established to review laws for consistency with English law
• The beginning of the transition from autocracy to constitutional governance was marked

1825 – Creation of the Executive Council

• Governor Darling's commission introduced an Executive Council
• The Governor was required to seek its advice or consent for many executive acts, limiting unilateral power.

1828 – Australian Courts Act

• The Legislative Council expanded to 10–15 members
• It gained veto power over the Governor's laws and introduced trial by jury
• The date for the reception of English law in New South Wales was fixed

1842 – Australian Constitutions Act (No 1)

• The Legislative Council expanded to 36 members, with two-thirds elected and one-third Crown-nominated
• The Governor's role in the legislature was reduced, though they retained the power to grant or withhold royal assent

1850 – Australian Constitutions Act (No 2)

• Colonies were allowed to remodel their constitutions for responsible government
• It led to the creation of Victoria (1851) and Queensland (1859) as separate colonies

1855 – New South Wales Constitution Statute

• A bicameral legislature (elected lower house and appointed upper house) was established in New South Wales
• Similar constitutions were adopted by other colonies, paving the way for self-government

1901 – Federation of Australia

• The Australian Constitution came into effect, establishing a federal system with a bicameral Parliament and responsible government, marking the culmination of Australia's democratic evolution

Early Colonial Courts (1788–1810)

• New South Wales initially had military courts staffed by officers, lacking judicial independence and civil rights protections
• The first civilian judge, Ellis Bent, arrived in 1810 but clashed with Governor Macquarie over military interference in the judiciary

Push for Reform (1814–1823)

• Ellis Bent and Jeffery Bent sought to establish the independence of the judiciary from the executive and legislature
• Emancipists (freed convicts) advocated for trial by jury and civil rights
• The Bigge Reports (1818–1822) recommended restructuring the court system along English lines to escape military despotism

New South Wales Act 1823

• Supreme Court of New South Wales and Van Diemen's Land established
• Judges were granted independence akin to English courts
• Judges were no longer subject to the Governor's orders, marking a shift toward judicial independence
• However, trial by jury was not yet entrenched (until 1833)

Australian Courts Act 1828

• The Governor was allowed to introduce trial by jury in criminal cases, beginning in 1833
• The reception of English law in New South Wales was fixed

Role of Sir Francis Forbes (1823–1837)

• Forbes, as the first Chief Justice of the Supreme Court, championed judicial independence and jury trials
• His tenure marked the end of autocratic military rule and the establishment of a strong, independent judiciary

Landmark Case: R v Farrell (1831)

• Forbes CJ dissented in favor of defendants' rights, citing the Magna Carta
• The majority adopted a pragmatic approach to maintain justice in a penal colony, Australia is essentially an extensive gaol (everyone is a criminal)

Colonial Court Systems by Federation (1901)

• By the late 19th century, colonies established three-tier court systems: Supreme, District/County, and Local/Magistrates' Courts
• At Federation, these systems integrated into a federal court structure, laying the foundation for Australia's modern judiciary

Repugnancy and the Colonial Laws Validity Act

• The Colonial Laws Validity Act 1865 narrowed the repugnancy doctrine
• It allowed colonial laws to stand unless they directly conflicted with Imperial legislation explicitly applying to the colony
• This gave colonies greater legislative independence, encouraging them to tailor laws to local needs while maintaining alignment with British legal principles
• Imperial legislative influence declined as colonies gained self-governing powers, though Britain retained residual authority until the Australia Acts 1986 fully ended its legislative control

Judicial Committee of the Privy Council

• Australia's ultimate appeal court was Imperial and the Judicial Committee of the Privy Council sat in London
• The Privy Council played a key role in colonial justice but was phased out as Australia and other colonies sought greater legal independence, culminating in the Australia Acts 1986

Abolition of Appeals

• Appeals to the Privy Council were gradually abolished:
  • 1968: federal matters.
  • 1975: appeals from the High Court on state matters.
  • 1986: direct appeals from state courts (via the Australia Acts).
• The last Australian appeal was decided in 1987

Path to Constitutional Independence

• Federation discussions began in the 1840s–1850s, leading to the Federal Council of Australasia Act 1885, but momentum grew in the 1890s through conventions and a populist movement
• A draft constitution was approved by referendums in five colonies (excluding WA)
• The Commonwealth of Australia Constitution Act 1900 was passed by the Imperial Parliament, with WA later joining
• The new federal nation commenced on 1 January 1901

The Australian Constitution

• The Australian Constitution blends a Westminster-style parliamentary democracy with a federal bicameral legislature
• Parliament includes the House of Representatives (lower house) and the Senate (upper house)
• Executive power is formally vested in the Queen (exercised by the Governor-General), but in practice, wielded by the political party controlling the lower house
• Westminster conventions are followed
• The Australian Constitution in 1901 created a new nation but did not provide full legal independence from Britain
• Australians still identified as British

Statute of Westminster 1931

• The Statute of Westminster 1931 granted legislative independence to Dominions like Australia, Canada, and New Zealand
• It allowed them to pass laws without requiring approval from the British Parliament
• It marked a key step toward sovereignty, though Britain retained some control over constitutional amendments until the Australia Acts 1986
• It ensured the British Parliament would not legislate for Dominions without their request
• It abolished the repugnancy doctrine from the Colonial Laws Validity Act 1865
• It granted Dominions the power to make extra-territorial laws
• Australia did not adopt the Statute of Westminster until the Adoption Act of 1942

The Australia Acts 1986

• The Australia Acts 1986 ended all remaining legal ties between Australia and Britain, fully establishing Australia's independence
• Privy Council appeals from Australian courts were abolished
• Australian states were given full legislative independence
• Britain's power to legislate for Australia was removed

Key topic areas

• Timeline of judiciary independence
• Timeline of legislative independence
• Origins and institutions
• Parliamentary democracy
• Federal system
• Key constitutional principles
• Separation of powers
• Responsible government
• Rule of law
• Australian legal institutions
• Legislature Judiciary
• Commonwealth
• State and territory court systems
• Executive
• State and territories
• Administrative law
• First Nations' Peoples and the Australian Legal System
• Native title
• Mabo [No 2) and the Native Title Act 1993 (Cth)
• Wik and the Native Title Amendment Act 1998 (Cth)
• Developing jurisprudence of native title: from Yorta Yorta to Akiba
• The ALRC's Connection to Country report
• Compensation for extinguishment: the Timber Creek Decision
• Complexity of native title claims
• First Nations Australians and the criminal justice system
• Early jurisdiction over the 'Aboriginal native'
• Protection regimes
• Royal Commission into Aboriginal Deaths in Custody
• Crimes of poverty, despair and defiance
• Indigenous sentencing courts
• Customary punishment
• Equality under the Law
• Northern Territory Intervention 106
• First Nations Australians and the Australian Constitution 112
• The race power and the 1967 referendum 112
• Constitutional recognition of First Nations Australians 114
• First Nations Australians, aliens, and the Constitution