LAWS 1016

Foundations of Law
WEEK 3: Australian historical and constitutional foundations
Lecture outline
• The reception of law in Australia
• Federation
• Aboriginal Australians and the law
The
reception of
law in
Australia
Date driven summary
Thematic summary
What will be covered…
1.The ‘Reception of law’
1. being the importation of the English common law system into Australia upon settlement in 1788.
• Where did the capacity and authority lie for the United Kingdom to assert power over
Australia?
• How did the United Kingdom assert that power and authority?
• What laws applied in Australia?

2. The place of the Indigenous peoples and laws upon reception.

The reception of English Common law
• 1786 Order-in-Council created the penal colony of New South Wales
• The New South Wales colony and the other colonies subsequently established in
Australia were initially controlled directly, and rather strictly, by the British
government as represented by the colonial Governor
• Acquisition of sovereignty by the British Crown on 26 January 1788
• ‘Royal Commission and Instructions granted Governor Arthur Phillip
powers to govern the colony
The establishment of the colonies
1. Areas that became colonies by virtue of settlement were
regarded as ‘terra nullius’ (land belonging to no one)
2. Areas that became colonies by virtue of military conquest.
3. Ceded colonies (one power giving up or ‘ceding’ its
sovereignty over territory to another)
Terra nullius
• On their arrival in the late 1700s, the British declared the Australian continent to be
terra nullius - ‘empty land’ or ‘land belonging to no-one’.
• Australia was deemed to have been settled by Britain rather than conquered. As Sir
William Blackstone explained in his 1765 Commentaries on the Laws of England:
If an uninhabited country be discovered and planted by English subjects all the
English laws then in being which are the birthright of every English subject, are
immediately there in force ....
A ‘settled’ colony
• Australia was treated as a settled colony. Although there was violent resistance
from the Aborigines, it was considered that they did not have a sufficiently
permanent (as distinct from nomadic) attachment to the land to be regarded as
a conquered people.
• https://www.theguardian.com/australia-news/ng-interactive/2019/mar/04/ma
ssacre-map-australia-the-killing-times-frontier-wars?fbclid=IwAR2lsaMIMAhhy
wcDfBRQ3ZUa7VOiP2qGtJY_yeWH6ImwO4hWOCCetrpylVo
Privy Council confirmed settlement view in Cooper v Stuart (1889) 14 App Cas
286. ‘practically unoccupied without settled inhabitants or settled law, at the time
when it was peacefully annexed to the British dominions’.
What law applied in this ‘settled’ colony
•The settlers applied British law to the resolution of colonial legal
disputes under what is known as the doctrine of reception.
•English law (common law, equity and statute) applied in Australia
from 26 January 1788.
• ‘... colonists carry with them only so much of the English law as is
applicable to their own situation and the condition of an infant colony
...’ (Sir William Blackstone)
Legislative confirmation of imperial law
• In 1828 the British Parliament passed the Australia Courts Act. Section 24 provided
that:
all laws and statutes in force within the realm of England at the time
of the passing of the Act ... shall be applied in the administration of
justice in the Courts of New South Wales and Van Diemen's Land ...
so long as the circumstances of the colony would make it possible.

o NB: boundaries then included Vic and Qld.

NOTE: Dates of reception of law into the other, later colonies is different. (1 June 1829 WA founded
(Interpretation Act 1984 (WA) s 73); 28 December 1836 SA founded (Acts Interpretation Act 1915
(SA) s 48)
The development of the colonies
What about English law made after 1828?
• Subsequent Acts of the British Parliament only apply to the
Australian colonies by Paramount force ie. if there is an express
provision or necessary implication that they are to so apply.
Phillips v Eyre (1870) LR 6 QB 1, 20-21.

• English common law (decisions of courts) continued to be received

into the colony after 1828. State Government Insurance
Commission v Trigwell (1979) 142 CLR 617, 625.
Colonial law
The British government granted the Australian colonies increasing
levels of independence. Each colony eventually had its own
constitution, setting out how the colonial legal system should
operate. Each colony had its own parliament, executive
government and court system.
What will be covered…
• The development of the institutions of government.
• The evolution of constitutionalism.
Early years in colony of NSW
•The Secret River Video [2 mins]
•The Governor ruled the settlement by proclamation and his powers
were very wide (eg he had the power to appoint legal and other
officials, to grant land, and to control public money and the
commerce of the colony; he could reprieve and pardon convicts; he
had command over the military officers and civil officials).
•First Charter of Justice, 1788
Establishment of parliamentary system of government

• New South Wales Act 1823 (Imp)

• Australian Courts Act 1828 (Imp)
• Governor and a Legislative Council
• Governor’s powers were limited to introducing laws for the ‘peace,
welfare and good government of NSW’ and on the advice of the
Legislative Council, provided that they were not repugnant to the
laws of England.
• NB: CJ to certify laws were not repugnant to English laws.
Establishment of an executive system of government

• New South Wales Act 1823 (Imp)

• Australian Courts Act 1828 (Imp)
• An Executive Council (‘EC’) was comprised of senior officials from the
colony;
• Governor had to consult with EC before making decisions or taking executive action.
• not until responsible government introduced in the 1850’s that Governor was
expected to follow advice of his EC.
• Accountable to the UK government through the UK Secretary for the Colonies
The establishment of a court system
• New South Wales Court Act 1787 (Imp)
• First Charter of Justice, 1788 (Imp)
• Bigge report (1822)– restructure required
• New South Wales Act 1823 (Imp)
• ‘to provide for the better administration of New South Wales and Van Dieman’s Land.’
• established Supreme Court of NSW, and Supreme Court of Van Diemen’s Land, provided
with the same civil & criminal jurisdictions as the KB & Exchequer courts in England
• Australian Courts Act 1828 (Imp) -criminal matters be tried by jury
• Judicial independence
Received law and governance
• English law as at 25 July 1828, as far as applicable
• Subsequent Acts of UK Parliament that applied by paramount
force
• Governors orders
• Laws passed by local Legislative Councils, subject to doctrine of
repugnancy
• But those law could not extend extra-territorially
Who determined issues of applicability, repugnancy &
paramount force?
Were the colonies sovereign?
Colonial Laws Validity Act 1865 (Imp)
• All statute & common law received by colonies prior to 25 July 1828 could be
amended by local parliaments s2
• Colonial parliaments could not pass laws repugnant to UK legn that applied
by paramount force. S3
• Otherwise the colonial parliaments were free to make laws as they saw fit,
and to even amend their own constitutions.
• BUT amendments to Constitutions must abide by ‘manner and form’
requirements. s5
• This provision still exists today as s 6 Australia Acts 1986.
Developments from mid-1880s
• Australian Constitutions Act 1842 (Imp)
• Legislative Council expanded to 36 members (2/3 elected – male, >21, property);
• Governor & Ministers did not hold seats in Parlt.
• However LC consent required for taxation.
• Australian Constitutions Act (No 2) 1850 (Imp)
• Created the colony of Victoria, and provided for the eventual creation of Queensland.
• Newly elected LC for Tasmania, NSW & SA with plenary powers to make laws for the ‘peace, order & good govt’ of the colonies
• Permitted change to Constitutions to accommodate full responsible (as in ‘self-govt’) government.
• 1855 - 1890
• Colonial constitutions enacted…
• Responsible govt. implied, not express
• Bicameral legislatures
Federation
What will be covered…
1.The movement to Federation in 1901 and subsequent
developments.
2.Is Australia a sovereign nation today?
Federation
• By the late 1800s, six relatively independent self-governing colonies existed on
the Australian continent. It was widely recognised that, given the similarities
and the common interests of the six colonies, some form of unifying legal
system should be established.
• In 1899 a referendum was held, and a majority of the colonies voted in favour
of federation.
• On 5 July 1900, the British Parliament passed the Commonwealth of Australia
Constitution Act (Imp), and the Commonwealth of Australia came into
existence on 1 January 1901.
Federation
Under the Constitution, Australia became a federation of six
States with a central government that had power to make laws on
matters that were considered to be in the common interest of all
of Australia. Each of the States gave up certain powers and rights
to the new Federal government, and at the same time retained
their individual identities and substantial legislative authority.
Federation
Australian Constitution
• Commonwealth of Australia Constitution Act 1900 (Imp)
• Creation of the Commonwealth of Australia
• Colonies became states…
• The Constitution recognises that the states’ Constitutions, Parliaments,
and laws continue to exist
Federation
• The Statute of Westminster 1931 (Imp):
• provided that the British Parliament would no longer legislate for the Commonwealth of Australia without
its request and consent and
• allowed a Commonwealth statute to override any inconsistent United Kingdom legislation other than the
Constitution Act.
• Applied ONLY to the Commonwealth, not the states (s 9(1))
• Essentially ended UK Parlt’s powers over the Commonwealth Parlt
• S 2(2) repugnancy doctrine not to apply to Commonwealth Parliament;
• S 4 Imp Parliament would not pass laws that applied to the Cth unless requested to do so.
• S 3 Commonwealth had extra-territorial powers
The Australia Acts
• The Statute of Westminister 1931 (UK) and the Statute of Westminister Adoption Act 1942 (Cth) gave the Cth independence from
Britain:
• UK Parliament can no longer pass laws for the Cth without consent and request
• Doctrine of repugnancy no longer applied to Cth Parliament
• Repealed the Colonial Laws Validity Act 1865 (Imp) – British Parl can no longer override federal laws or make laws applying to Australia.
• But, until 1986, the Australian States were still linked to the British Parliament through their constitutions and their constitutional
history.
• In 1986 (not that long ago!) the States achieved the same level of independence from Britain as the Commonwealth through the
‘Australia Acts’
• Australia Act (Request and Consent) Act 1985 (Cth) [states referring power to Cth]
• Australia Act 1986 (UK) [enacted on request of Aust Cth Parliament]
• Australia Act 1986 (Cth)
• Australia Acts video
The Australia Acts
• The Acts terminated the UK’s power of States, Territories and
the Cth
• i.e. even with request and consent, the UK Parliament could not pass laws
with respect to Australia
• removed repugnancy limitation on State parliaments
• abolished appeals to Privy Council from state Courts
Australia Act
Legislature
• State laws concerning the Constitution, powers or procedures of the State’s Parliament must be passed in
accordance with any “manner and form” requirements = s 6.
• State laws assented to by the Governor of the State may not be disallowed by the Queen = s 8.
• The requirement that certain State legislation be reserved for the Queen’s personal assent is abolished =
s 9.

Executive
• The British government now has no responsibility for the government of any State = s 10.

Judiciary
• Appeals to the Privy Council from any Australian court are abolished = s 11.
Has sovereignty been achieved?
• ACTV v Commonwealth (1992) 177 CLR 106, 138 (Mason CJ) …
these Acts ‘marked the end of the legal sovereignty of the
Imperial Parliament and recognised that ultimate sovereignty
resided in the Australian people.’

• BUT…Constitutional Monarchy? Video [3 mins]

Aboriginal
Australians
and the law
Customary law
• Customary law refers to the laws, practices and customs of indigenous
communities.
• Customary law:
• comprises elements of law, spirituality, ceremony and business.
• is usually passed on orally rather than set down in writing.
• simultaneously explains the existence of humans and nature, creates a social code of
conduct, and provides the basis for both a political structure and a social hierarchy.
Customary law
• The emphasis in British law is upon the rule of law and publicly
known legal rules
• Knowledge of customary law is often kept secret, with
different parts of the law preserved by initiated men and
women or by small groups to the exclusion of others.
Focus of Aboriginal Peoples and the law
• Territory
• Identity
• Sovereignty
Identity and territory
• Several hundred Aboriginal communities at time of British settlement
• Impact of colonisation
• devastating impact on the several hundreds of ATSI communities, each with
their own unique languages, cultures, territories and laws.
• communities demonstrated strength, resilience, resistance and a sense of
identity in the face of many episodes of state sponsored violence during
Australia's colonial history.
Sovereignty?
• The assertion of British sovereignty in Australia was only possible because the colonial mind set of
the British,
• a series of cultural assumptions about the relative work of other cultures, ways of life, value systems, social and political
institutions and ways of organising property.
• The acquisition of British sovereignty to found the Australian state has been vigorously contested by
ATSI people, both in fact and in law.
• series of High Court cases that culminated in Coe v Commonwealth (1979) 24 ALR 118,
• the High Court affirmed the sovereignty of the Crown and declared this sovereignty to be inconsistent with any other
claims.
The Mabo case
‘My father told me: “Son, this land will
belong to you when I die.”’
Eddie Koiki Mabo
Indigenous law
• Not recognised AT ALL in the Australian legal system until the High Court’s
Mabo decision in 1992.
• Mabo recognised the possibility that ‘native title’ to land might still exist in Australia in some
cases...
• Where it is likely that an offender will undergo some form of tribal punishment
– that fact can be taken into account by sentencing judges in Australia..
• Beyond this – indigenous law is still given very little recognition in Australia...
Murray Islands
In 1991 Eddie Mabo sought to establish that the Meriam people’s
rights to the Murray Islands were not extinguished by the arrival
of the British in 1788 or by the annexation of the Islands to
Queensland in 1879.
Mabo v Cth (No 2) (1992) 175 CLR 1
• The first common law recognition of some aspects of indigenous law in Australia
• The doctrine of terra nullius partly rejected
• Accepted that ‘native title’ (previously unrecognised) could survive European settlement
reflects the entitlement of the indigenous inhabitants, in accordance with their laws or
customs, to their traditional lands
• until Crown action inconsistent with its survival..
• This was a 6:1 majority decision in favour of Eddie Mabo and the Meriam
people.
The Mabo case
Important to remember that:
• did not question that Australia was a settled colony, or that English law came with the settlers.
• radical title to all land in Australia was vested in the Crown.
• observed that in reality, Australia was not terra nullius, that is, empty land belonging to no one.
• it was appropriate to change the common law rule to recognise that the Crown’s radical title
coexisted with a beneficial native title.
• This meant that:
if a group of Aborigines or Torres Strait Islanders could show that they had exercised traditional
rights over land since before British colonisation, the law would recognise their traditional rights.
BUT
if the Crown had exercised its title to the land, either by using it itself or by selling or granting it
to someone else, the native title would be extinguished.
The Mabo case
• How may native title be extinguished?
• Some examples:
• If permanent public works have been built on the land.
• If the Aborigines lose their traditional connection with the land.
• When the last Aborigine connected with the land dies.
• If it is voluntarily given up.
After Mabo
Wik Peoples v Queensland (1996) 187 CLR majority of the High Court held that
native title is not extinguished by the Crown’s granting of pastoral leases.

Native Title Act 1993 (Cth)

Indigenous Australians today
[T]he disadvantaged position of so many Indigenous Australians today is
in large part, a legacy of legal doctrines – or of the misapplication of
legal doctrines – which go back to the beginnings of British colonisation.
… It is also our belief that law, as well as being part of the problem, can
also be part of the solution.
H McRae, G Nettheim, T Anthony, L Beacroft, S Brennan, M Davis and T Janke, Indigenous
Legal Issues, Commentary and Materials (Lawbook Co, 4th ed, 2009).
The Stolen Generations
• Generations of Indigenous children removed from their birth families by governments,
churches and welfare bodies to be brought up in institutions or fostered out to white
families.
• In 1995, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children from their Families
- found that between one in three and one in ten Indigenous children had been removed from their
families under past government policies.
- major recommendation was that all Australian Parliaments apologise to the Stolen Generations for
the actions of their predecessors in forcibly removing children from their families.
Northern Territory intervention
•2007 Report Inquiry into the Protection of Aboriginal Children from Sex Abuse
•revealed an alarming level of child abuse in some Indigenous communities.

•Federal Government passed the Northern Territory National Emergency Response Act 2007,
which:
• banned the possession of pornography within ‘prescribed areas’,
• extended the mandate of the Australian Crime Commission to include ‘Indigenous violence and child abuse’,
• deployed Australian Federal Police as ‘special constables’ to the Northern Territory Police Force,
• provided that the Commonwealth can retain an interest in buildings and infrastructure on Aboriginal land if it
funds their construction or major upgrade, and
• removed the permit system which governed access to Aboriginal land.
Constitutional recognition
• Professor Williams Video [1.41]
• At present, the Australian Constitution makes no reference to Indigenous Australians.
• Constitutional reform is seen by some as essential to achieving a lasting legal reconciliation with
Indigenous Australians. Proposals for Constitutional change usually call for an amendment to the
wording of the Preamble. Some proposals call for more substantial changes to the main part of the
Constitution.
• Some call for something more – a TREATY
• Uluru Statement from the Heart
• Uluru Statement from the Heart - 4 years on 
• To be explored further in the seminar!