Australian Legal System: History and Foundations

• The Australian Legal System topic introduces the fundamentals of the legal system, its origins, its relationship between British settlers and First Nations Australians.
• The topic also explores the ramifications for current legal issues, how institutions and the history of the Australian legal system have shaped the content and administration of the law, and various aspects of the Australian legal landscape and fundamental concepts.

Key Concepts

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

Key Questions

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

Foundations of the Australian Legal System

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

Key Developments:

• Independent colonial courts and parliaments, modeled on the Westminster system, were established through Colonial Courts and Legislatures.
• Federation (1901): The Australian Constitution created a federal system
• Australia remained under British oversight after federation.
• Full Independence: Achieved through the Statute of Westminster (1931) and the Australia Act (1986).
• First Nations Australians' customary law, existing for 60,000+ years, was ignored throughout this process
• This led to systemic inequality and ongoing calls for recognition of Indigenous legal traditions.

Transportation and Settlement

• In 1717, the Imperial Parliament passed a Statute allowing prisoners to be exported to commute their sentences.
• On 21/01/1788, Australia was settled as a Penal Outpost.
• From 1840-1868, Australian States progressively discontinued importing prisoners.
• Military administration and penal law consequently effected the development of Australian law/administration.
• Colonization of Australia was deemed legal under International Law, which allowed conquest, cession, or settlement.
• Blackstone's Formulatio:
  • Conquest/Cession: Existing laws retained unless altered.
  • Settlement: Existing laws were ignored because 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
• This happened by claiming the land was uninhabited or lacked recognizable systems of law, agriculture, or politics, ignoring Indigenous Australians.
• In Cooper v Stuart (1889), the Judicial Committee of Privy Council upheld this doctrine, stating Australia was "settled."
• This 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
• The act had limitations, including an outdated view of judicial law-making and the subordination of Australian courts 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)
• Stated 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.
• The Imperial Parliament could pass new legislation for Australia, ensuring that English common law continued to evolve and apply.
• The regular British Parliament could not legislate for Australia.
• The Act assumed that judges merely "discovered" common law rather than actively creating or adapting it
• This overlooked the dynamic nature of judicial decision-making.
• The Act implied that the British Apex/Supreme Court remained the ultimate legal authority over Australia, undermining the development of an independent Australian legal system.

Evolution of an Independent Legislature

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

Key Effects:

• 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.

Key Milestones in the Development of Australian Democracy Timeline:

• 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
  • Created a Legislative Council (5–7 Crown-nominated members) to advise the Governor on laws.
  • Established an independent Supreme Court to review laws for consistency with English law.
  • Marked the beginning of the transition from autocracy to constitutional governance.
• 1825 - Creation of the Executive Council
  • Governor Darling's commission introduced an Executive Council, requiring the Governor to seek its advice or consent for many executive acts, limiting unilateral power.
• 1828 – Australian Courts Act
  • Expanded the Legislative Council to 10–15 members, granted it veto power over the Governor's laws, and introduced trial by jury.
  • Fixed the date for the reception of English law in New South Wales.
• 1842 - Australian Constitutions Act (No 1)
  • Expanded the Legislative Council to 36 members, with two-thirds elected and one-third Crown-nominated.
  • Reduced the Governor's role in the legislature, though they retained the power to grant or withhold royal assent.
• 1850 - Australian Constitutions Act (No 2)
  • Allowed colonies to remodel their constitutions for responsible government.
  • Led to the creation of Victoria (1851) and Queensland (1859) as separate colonies.
• 1855 - New South Wales Constitution Statute
  • Established a bicameral legislature (elected lower house and appointed upper house) 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.

Development of Judicial Independence

• 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 were seeking to establish the independence of the judiciary from the two other branches of government, 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:

• Established the Supreme Court of New South Wales and Van Diemen's Land, granting judges 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:

• Allowed the Governor to introduce trial by jury in criminal cases, which began in 1833.
• Fixed the reception of English law in New South Wales.

Role of Sir Francis Forbes (1823–1837):

• As the first Chief Justice of the Supreme Court, Forbes 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, but the majority adopted a pragmatic approach to maintain justice in a penal colony.

Colonial Court Systems by Federation (1901):

• By the late 19th century, colonies had established three-tier court systems
• At Federation, these systems were integrated into a federal court structure, laying the foundation for Australia's modern judiciary.

Continuing Connection with English Law:

• The Colonial Laws Validity Act 1865 narrowed the repugnancy doctrine, allowing 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 develop laws tailored to local needs while maintaining broad alignment with British legal principles.
• Imperial legislative influence declined as colonies gained self-governing powers.
• Britain retained residual authority until the Australia Acts 1986 fully ended its legislative control.

Judicial Committee of the Privy Council

• It was the yardstick against which colonial law was measured.
• Australia's ultimate appeal court was Imperial where 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.

The Role & Abolition of the Privy Council:

• The Judicial Committee of the Privy Council served as the final court of appeal for British colonies, including Australia, until the Australia Acts 1986.
• It was established in 1833 to systematize colonial appeals, offering a neutral forum free from local biases and wasn't used in England.
• Appeals to the Privy Council were gradually abolished in Australia:
  • 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.

The Path to Constitutional Independence:

• Discussions began in the 1840s–1850s, leading to the Federal Council of Australasia Act 1885
• Momentum grew in the 1890s through conventions and a populist movement ending with WA joining
• After a draft constitution was approved by referendums in five colonies, the Commonwealth of Australia Constitution Act 1900 was passed by the Imperial Parliament.
• The new federal nation commenced on 1 January 1901.

The New Constitutional Government:

• The Australian Constitution blends a Westminster-style parliamentary democracy with a federal bicameral legislature.
• Parliament: Comprises the House of Representatives and the Senate.
• Executive Power: Formally vested in the Queen (exercised by the Governor-General), but in practice, it is wielded by the political party that controls the lower house, following Westminster conventions.
• The commencement of the Australian Constitution in 1901 created a new nation but did not provide full legal independence from Britain
• This lack of independence took nearly a century of incremental steps, reflecting the British constitutional tradition where many key elements evolve through practice before being formally codified.

Statute of Westminster 1931

• Granted legislative independence to Dominions like Australia, Canada, and New Zealand, allowing 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.
  • Abolished the repugnancy doctrine from the Colonial Laws Validity Act 1865.
  • 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.
• They:
  • Abolished Privy Council appeals from Australian courts.
  • Gave Australian states full legislative independence.
  • Removed Britain's power to legislate for Australia.
• This marked the final step in Australia's journey to complete legal sovereignty