Arrival and Reception of English law in colonial Australia.

Question 1

What are three ways according to International Law for a country to conquer new land?

Answer 1

1. Conquest
2. Cession (one power giving up its sovereignty to another)
3. Settlement

Question 2

Following ‘conquest’ and ‘session’, what, according to International Law, happened to the laws that were in force prior to the takeover of the territory?

Answer 2

They continued to operate until the new power shifts.

Question 3

Following ‘settlement’ what, according to International Law, happened to the laws that were in force prior to the takeover of the territory?

Answer 3

All new laws of the New power replaced the existing laws in force

Question 4

What is the text/source of these ‘oft-quoted principles’ of contemporaneous international law?

Answer 4

William Blackstone’s Commentaries

Most influential treaties on the English common law

Question 5

What is ‘sovereignty?

Answer 5

The supreme, absolute, and uncontrollable power by which an independent state is governed and from which all specific political powers are derived; the intentional independence of a state, combined with the right and power of regulating its internal affairs without foreign interference

Question 6

What is terra nullius and why did the British assume so?

Answer 6

European nations defined civilisation with having a a legal system which contained land ownership laws with land being used for agricultural and other uses however as Aboriginal Australians were nomadic, it did not fit into category of land ownership and hence no civilisation

Thus the doctrine of Terra Nullius was established therefore British Sovereignty and English Law (common law, equity, statute) was introduced to Australia

Question 7

What did the Australian Courts Act 1828 attempt to do? What was the date of ‘reception’?

Answer 7

Imperialist Parliament (British parliament legislating for Empire) passed Australian Courts Act 1828 for the English Law (statues, common law, equity) to be operative in NSW and Van Dieman’s Island on 25 Jly 1828

The date of ‘reception’ (day colony state or territory to have acquired english law) was 25 July 1828 for NSW and Van Dieman’s Island

Question 8

What body was formally given power to determine whether a particular law of England was ‘applicable’ to the colonial conditions?

Answer 8

Supreme Courts

Question 9

Was the common law fixed on the day of reception?

Answer 9

The common law was not fixed at the date of reception but could be developed further by the judges (both in England and in the colonies).

Question 10

We have seen that by 1828 colonial courts were starting to exercise powers to interpret the law for the purposes of the colony.

When and how were the early colonial courts established?

Answer 10

Prior the first fleet departed England, Legislations were passed to develop colonial courts such as criminal court in NSW and court of civil jurisdiction which was created from issuings of Letters of Patents (letters from Crown with public instruction)

Question 11

Who were teh staff of early military courts?

Answer 11

military officers

Question 12

What mechanism(s) effectively transformed government in the colony from military rule led by a Governor to a colony where the law-making institutions (making, interpreting and applying English law) mimicked those in England?

Answer 12

Establishing courts initally was interrupted by the conflict between earlier judges and Govenor Macquarie. The judges wanted indepdence of courts from military rule of the government that the Govenor administered.

Reforms of 1823 from New South Wales Act was passed by Imperial Parliament

Question 13

What was the purpose of the New South Wales Act 1823?

Answer 13

Free Court from military interference with the colony adopting a colony system that based on English courts

Colonial judges had security of tenure and indepedence from military interference that were granted by Bill of Rights Act 1689 (UK) and Act of Settlement 1701 (UK)

formally established Australia’s first court, the Supreme Court of New South Wales, with Francis Forbes as the new Chief Justice.

Question 14

What was the legacy Forbes left?

Answer 14

Forbes’s efforts to create judicial indepedence with no political constraint.

He made personal sacrifices to achieve this. This was seen by federation when court system in colonies resemble Australia’s modern courts.

Question 15

What are three tiers of the court system?

Answer 15

The supreme Court

Intermediate civil and criminal court (district or county court)

Lower tier: Magistrates’ courts

Question 16

What was a challenge during federation?

Answer 16

superimpose a federal system of courts on the existing court systems that were established during the colonial times

Question 17

What occurred the first decades after British arrival?

Answer 17

Govenor retained control and power in the colony similar to that of The King. The govenor has advisors similar to The King’s Curia Regis.

Question 18

How did the New South Wales Act 1823 transform the colony?

Answer 18

Created indepedent Supreme Court (same jursidication as English Common law courts) and Legislative Concil comprising of 5-7 members nominated by the Crown.

The Act granted the Govenor who according power to enact laws for ‘peace, welfare and good Government’ of NSW with advice from Legislative Council. However, Govenor did not necessarily have to accept the advice

Question 19

Outline the extent to which the law-making power of the Governor became more limited at each stage of Constitutional development?

Answer 19

Under New South Wales Act 1823, the govenor could begin a legislation but if more than one member of Legislative Council disagreed, the proposal would not be considered.

In addition, Governor could only enact laws were not repugnant to Laws existing in England. The supreme court was to review any proposed legislations by Govenor to ensure no repugnacy.

Govenor Darling in 1825 required ‘advice’ or sometimes ‘advice and consent’ from Executive Council if he were to proceed in enacting an act regarding military, civic, commericlal development of NSW

These limitations the Govenor faced in wielding his power with need for consultation prior taking action, demonstrates NSW transformation from military to civil government.

Question 20

What superseded the New South Wales Act 1823, what are amendments made in the act?

Answer 20

In 1828, when NSW Act 1823 was rumoured to be abolished, the Imperial Parliament passed the *Australian Courts Act 1828. *

The amendments included reforming government through

• expanding member in Legislative Council to 10-15
• fixing date of reception of English Law
• Criminal cases can be trialled by jury
• Abolished the power Govenor had to ignore advice of Legislative Council. Instead, **Legislative Council can vote upon proposed laws **

Question 21

What Act made amendment to Australian Courts Act 1828? When was this made?

Answer 21

The Imperial Parliament passed the Australian Constitutions Act (No1) (1842) expanding Legislative council further to 36 members with **2/3 elected and 1/3 nominated by crown. **

First time Government divided into three Branches:

1. Legislature
2. executive
3. judiciary

Question 22

Describe the Govenor’s Jurisdiction after the** Australian Constitutions Act 1842 (No1) **was passed

Answer 22

Govenor no longer part of legislature. The Govenor had jurisdiction to introduce Bills but it was depedent on Legislative Council to pass or reject.

Question 23

What is the role of Govenor and Govenor-Generals in Australia and United Kingdom today?

Answer 23

Provide royal assent (the formal signing of an act of Parliament by the sovereign, by which it becomes law) provided for bills that the Legislative Council passes

Question 24

What Act was passed following the Australian Constitutions Act (No1) (1842)?

Answer 24

*The Australian Constitutions Act (No2) (1850) *

Question 25

What was the Act that followed The Australian Constitutions Act (No1) 1842

What were features of the Bill?

Answer 25

NSW legislative Council passed a constitutional Bill to England to be conferred Royal Assent.

Th Bill included adopting a bicameral legslature with an appointed upperhouse and elected lower house.

It was enacted after few amendments in London and became the New South Wales Constitution Statue 1855

Question 26

what is the difference between the New South Wales Constutition Statue 1855 and New South Wales Constitution Act 1855?

Answer 26

NSW constitutions Statue 1855 was the Imperial Act after amendments in London

whereas the new constitution itself was New South Wales Constitutions Act 1855

Question 27

What was the New South Wales Constitution Act 1855 replaced by?

Answer 27

It operated until 1902 being relaced by *New South Wales Constitution Act 1902 *

Question 28

To what extent were the early colonial parliaments free to make laws suitable for the colony, and potentially inconsistent with English law?

Why was it important for Australia to be repugnant?

Answer 28

Govenors and legislative council needed to ensure their enacments were not repugnant to laws in England. This was for England to **maintain control over colonial legislature **

It became an important issue as Australia developed its own civil society that had different values to English society, and also different problems to address and solve.

Question 29

What act aimed to resolve the aspect of repugnance? what did it emphasise

Answer 29

*The Colonial Laws validity Act (1865) *

It emphasised the jurisdiction of English Law but colonoial law need not to be invalidated as repugnant to English laws although, it could be invalid if it was inconsistent with Imperial legistation that was ‘_made applicable to colony by express words or necessary intendment of any Act’ _

This enabled colonial legislatures and judges to establish laws that underpin the British concept of justice however, they are geared to the needs and features of the colonies.

Question 30

what happened to imperial legislation?

Answer 30

Imperial Legislation lost significance with the creation of local legislatures in 19th century that gave the power for states to make laws.

Question 31

For how long did Britain retain ‘residual power’ to legislate for the states (the original colonies)? What caused the change? (See the bottom of p 44) Do you find this date surprisingly late?

Answer 31

Britain retained ‘residual power’ to legislate for states until 1986.

Question 32

During colonial times, where did appeals from a colonial supreme court go to?

Answer 32

Appeals from a colonial supreme court such as Supreme Court of New South Wales went to Judicial Committee of the Privy Council (Privy Council)

Question 33

How did the Judicial Committe of Privy Council become established and what is their role?

Answer 33

The judicial committee of Privy Council was established in 1833 by a statute.

Their function is to hear appeals from British Colonies

Question 34

How does the Privy Council abolish appeals from Australian courts?

Answer 34

Privy Council abolish appeals from Australian courts in 3 stages

1 appeals on federal matters (so arising under Australian Federal legislation) were abolished in 1968

2. appeals from the High Court on matters of state law were abolished in 1975 (leaving open appeals to the PC directly from state courts, ie, for a period of time you could choose whether to go to the HCA or to the PC from a state matter).
3. appeals to the Privy Council on state matters directly from state courts were abolished in 1986.

Question 35

Who are the members of The Judicial Committee of the Privy Council?

Answer 35

The body is composed of judicial members of the House of Lords (English judges).

Occasionally colonial judges would also sit on the Privy Council but the Privy Council was free to and typically would apply English law.

Question 36

Why may Australian courts consider international treaties?

Answer 36

international treaties can help judges in Australian courts interpret legislation when there is confusion. This is part of the international treaty obligations under international law