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LAWS104 W3L (11-3-15) - Lecture notes 3

Legal Reading Research and Writing (Australian Catholic University)

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LAWS104 W3L (11-3-15)

Britain Gaining Ownership of The Australian Land

-Britain could do this in one of three ways:
-By Conquest
-Usually involving a struggle to conquer the people who were living
there
-Ceded
-The people who currently own the land surrender it to the new
comers
-By Settlement
-The land is unoccupied and free for whoever settles there
-Basically, the land is Terra Nullius

Secret Instructions To Cook

-Cook was instructed to try and receive ownership of the lands by way of the
current owners ceding it to the British
-It was intended that the land would be handed over to him
-These instructions were not followed, as they could not properly communicate to
the aborigines
-Instead, the land was basically taken from the aborigines, as there was no clear
evidence of signage or ownership of land
-The idea that Australia was settled was upheld for decades through the common
law, meaning that Australia was settled, rather than conquered or ceded

Rule Against Perpetuities

-Doesn’t like laws that leave situations open ended

Cooper v Stuart (1889) 14 App Case 286

FACTS: -Cooper, in 1823 was granted land by the Governor to develop and
farm under the condition that, upon request, the Crown could
reclaim a portion of the land back on terms relating to what was in
the public’s interest (Park, Town Hall ect)
-The Governor made their claim in 1889, but Cooper’s grandson now
owned the land, and after taking care and putting effort into the
land for so long, he was resistant to give it up
-Cooper argued the long standing rule of property common law,
being the ‘rule against perpetuities’, which states that laws that
leave open-ended situations and scenarios, like the reclaiming of
land, should be disregarded
-This being that, once you give away property, you cannot make
rulings or exert any control over that property
-The common law prefers that property be owned by ‘one person’,
rather than multiple people having separate ownership and rights to
certain land
-The governor’s lawyers argued that the law of perpetuity was not
part of the New South Wales law that was brought over from
England

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ISSUE: -Did the rule against perpetuities come ‘along with the British ships’,
or, was it not relevant when involving dealings within New South
Wales

HELD: -The Privy Council held that the reservation was valid
-New South Wales should be treated as a settled colony, and that
English common law would only be considered if it came ‘with the
first fleets, not post their arrival’
-This proposition could not be challenged
-In a new colony, the Government needs to give away land grants,
but also needs to reserve land for public use
-Therefore the law against perpetuities could not be considered as
part of the law in New South Wales
-Cooper was unsuccessful
-Basically, this is a law that did not come with the first fleet, however
it has now been re-established

Charter of Justice 2 April 1787 (Imp)

-This Charter allows for the New South Wales courts
-It established the first criminal court
-No Parliament was yet established, as people were scarce
-Provided the Governor the power to permit the death penalty for certain sanctions

New South Wales Courts Act 1787 (Imp)

-Established the legal system
-This ensured that British law landed with the first fleet
-It stated that the courts created would be courts of record, allowing for reports to
be written and precedents to be created

Charter of Justice 13 October 1823 (Imp)

-Created the first Supreme Court of New South Wales, with a single chief justice
-Allowed for barristers and solicitors
-Limited the ability for trial by jury, as the civilians were not quite trusting yet due
to them being old convicts themselves

New South Wales Act 1823 (Imp)

-Repealed the New South Wales Court Act 1787 (Imp), and authorised a legislative
council and a Supreme Court of New South Wales
-In criminal cases, a jury of seven naval or military officers would be assembled
-People felt that it would be better if the military and naval were kept out of the
legal system

Australian Courts Act 1828 (Imp)

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-Entrenched trial by jury in the Supreme Court of New South Wales criminal cases
-At this time, the crown, not the public, elected the members of Parliament
-(At this stage, New South Wales included land other than, what is now known as
New South Wales)

Extent of English Law Received Upon Settlement

-Legislation passed after the day of reception in the UK will not be applicable in
Australia
-Even though certain new precedents after this date do not form part of the
Australian common law, the cases before reception are still relevant, so such
principles can still be developed through these precedents
-The common law, as still today, changed due to changing circumstances
technological upgrades and advancements in society

State Government Insurance Commission v Trigwell (1979) 142 CLR 617, 625-6
(Gibbs J)

FACTS: -Trigwell was involved in an accident were sheep wondered onto the
road and forced him to swerve and collide with another vehicle
-The driver of the first car was killed, and the second car suffered
injuries
-They sued the insurer of the first car for negligence, alongside the
owners of the land where the sheep lived, forming the defendants
-It was claimed that the sheep on the road was a result of their
negligence by not building a fence, or by not controlling them

ISSUE: -Was the land owners acting negligently by allowing the sheep to
roam at their free will?

HELD: -The land owners were not held liable for the incident, as such laws
relating to negligence was unsuitable under Australian conditions,
or was not relevant as it was not ‘part of our law’ (did not come with
the fleet)
-This case reinforces the belief that Australia was settled, rather than conquered or
ceded

Victoria Constitution Act 1855 (Imp)

-This was the decision to allow the colonies to be self-governed
-This act from the British Parliament allowed Queen Victoria to assent to a
Constitutional bill
-This act brought in the constitutional framework that we now have, being the
Separation of Powers

The Relationship Between Domestic and International Law

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-Public International Law

-Governs the relationship between sovereign states
-States consent to obligations through agreement
Private International Law
-Governs transactions between individuals

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