LLB 100 Lecture Notes - Lecture 2: Aboriginal Protection Board, Glorious Revolution, Australian Law Reform Commission
Week 2 – Origins of the Australia Legal System
Perceptions of the Australian legal system – unfair, inefficient, slow, harsh
Australian law changed and developed as the needs of society changed and developed
Focus on power, authority and law in context of:
• English history: King v Courts v Parliament
• Eolutio of Austalia oloies’ idepedee fo Bitai
• Coloial poe ad Austalia’s idigeous people
English History: Struggle for power
• A three-way dispute about power between Kind, the common law and Parliament
• Divine right of kings disputed
• Coo la iposed estitios o Kig’s authoit
• King hired decision makers who were the early courts – formed to exercise power for
the King relating to tax collection
Common Law
• Custom from time immemorial
• Common law flexible – refined wisdom of ages
• Common law = custom + reason
• Artificial reason – cases had to be interpreted, rules and principles learned and
applied
Parliament
• Is common law or parliament the best place to protect subjects?
- Parliament emerged as the supreme law-maker as a result of dispute
- Bill of Rights 1689 limits the royal prerogative
- Some prerogatives remained, e.g. in relation to colonial affairs (NB: role of Privy
Council)
• Parliament passed a law in 1689 to reduce King’s poe oal peogatie
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Terra Nullius
• Law in the 18th etu as’t oeed ith hua ights ut ith oloial
powers to acquire new territory
• Sovereignty could be acquired in three ways:
1. Conquest – taking land by force
2. Cession – the surrender of land by treaty
3. Discovery and occupation – hee the lad as tea ullius – the lad of o-
oe. Iluded ot ol uihaited lad ut also lad populated peoples
considered too primitive to have a system of law
• Provided a legal justification that was wrong in two ways
1. Aboriginal people had already inhabitated the land for tens of thousands of years
2. It is o aepted that Austalia’s idigeous populatio had a sophistiated
social organisation and system of laws
See Blackburn J in Milirrpum v Nabalco Pty Ltd – CB 24
Blaku J akoledged the…
• Arthur Phillip, captain of the first fleet became the governor of Australia. Sydney
Coe as oe i hih ships a aho so lose to the shoe, that i a e sall
expense quays may e ostuted at hih the lagest essels a uload – sends
a message that English people wanted to use Australia to trade, invade to earn a
profit, something Aboriginal peoples have not seen
• Australia had no recognised system of government or authority
• No flag planted
• No recognition of Aboriginal people, their customary laws or tradition
• All laws were taken straight from Britain
• Austalia ould’t ake las fo theseles util - CLVAct
• 1931 – Statue of Westminster
• Complete independence from Britain – 1986 – Australia Acts
The Reception of English Law
• Conquered or ceded colonies had existing laws. Britain could make changes by
passing new laws however the existing laws would stay in place until this happened
• A settled colony had no existing laws which meant that all the laws in force in Britain
immediately came in force in the settled colony
• Subject to one qualification: the English laws only applied as they fitted the
circumstances and condition of the infant colony
• European notion of property meant that there was no cultivation of land therefore
there were no rights in it and no barrier to dispossession
• Profound impact on Australian society:
1. Resulted in the development of a legal system based on English principles, laws
and institutions
2. Disastrous repercussions for Aboriginal law and society
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Evolution of Responsible and Representative Government
English statutes enacted after the date of reception only became law if they applied by
paramount force – if they were intended to apply to the colonies either expressly or by
necessary implication
The Supreme Courts in NSW were given the same powers as the courts of Westminster by
the enactment of an Imperial statute in 1823 referred to as the New South Wales Act 4 Geo
IV c 96. It created a Legislatie Couil fo N“W ad ade poisios fo Va Diea’s Lad
as a separate colony with its own Legislative Colony
Responsible Government
The progress towards a civil rather that military society
• Australian Courts Act 1828 (UK) – fixed the date of reception of English law in
Australia, increased the size of the legislative council and diminished the power of
the Governor in relation to it
• 1842 – Australian Constitutions Act (No 1) enlarged the NSW Legislative Council and
provided for the election of of its ees, diffeetiated the Goeo’s
functions from that of the Legislative Council so Australia had 3 separate branches of
government – legislature, executive, judiciary
• Australian Constitutions Act (No 2) – gave the colonial legislatures power to change
their constitutional agreements. NSW was granted new bicameral legislation with an
appointed Upper House and the lower two houses elected. This was approved by
Britain with the enactment of the New South Wales Constitution Statute 1855
• 1890 – All six colonies had a system of responsible government which forms part of
the Westminster tradition and requires accountability of the executive arm
(government) to the legislature and the legislature to the people
• 17th Century – Parliament emerged as the ultimate law-maker in the wake of the civil
war and the 1688 revolution
Representative Government
Requires that members of Parliament be popularly elected so laws made by Parliament are
the expression of the people
• 19th Century – each colony had a bicameral Parliament with an elected lower house
• Britain restrictions remained – voting was limited by gender and race, women first
granted right to vote in SA in 1895. In 1962 the right to vote was extended to
Aborigines at federal elections however they were precluded from Queensland until
1965
Federation
January 1901 – birth of the Commonwealth of Australia, colonies transformed into States
1986 – Australia received full independence from Britain
The colonial politicians did’t at to saifie too uh of thei eistig legislatie poe
to a new national government. The compromise created a federal system where the central
government shared powers with the states. As Britain was a unitary state, Australia had to
look to other constitutions. Canada was rejected as the division of powers favoured the
central government. Looked to US as it limited the power of the federal government to
specific matters set out in the Constitution. Important that the Australian constitution
embodied key principles from England, including the doctrine of responsible government
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Document Summary
Week 2 origins of the australia legal system. Perceptions of the australian legal system unfair, inefficient, slow, harsh. Australian law changed and developed as the needs of society changed and developed. Focus on power, authority and law in context of: english history: king v courts v parliament, e(cid:448)olutio(cid:374) of aust(cid:396)alia(cid:374) (cid:272)olo(cid:374)ies" i(cid:374)depe(cid:374)de(cid:374)(cid:272)e f(cid:396)o(cid:373) b(cid:396)itai(cid:374, colo(cid:374)ial po(cid:449)e(cid:396) a(cid:374)d aust(cid:396)alia"s i(cid:374)dige(cid:374)ous people. Common law: custom from time immemorial, common law flexible refined wisdom of ages, common law = custom + reason, artificial reason cases had to be interpreted, rules and principles learned and applied. Parliament emerged as the supreme law-maker as a result of dispute. Bill of rights 1689 limits the royal prerogative. Some prerogatives remained, e. g. in relation to colonial affairs (nb: role of privy. Council: parliament passed a law in 1689 to reduce king"s po(cid:449)e(cid:396) (cid:894)(cid:396)o(cid:455)al p(cid:396)e(cid:396)ogati(cid:448)e(cid:895) See blackburn j in milirrpum v nabalco pty ltd cb 24.
