Oz Politics

From Indigenous laws to English law

Aboriginal peoples and Torres Strait Islanders have occupied Australia for at least 40,000 years and possibly more than 60,000 years. Immediately prior to European colonisation, there were over 500 Indigenous nations with their own legal systems. However, from the British perspective, these Indigenous legal systems were swept aside by the acts of colonisation. The process can be explained in terms of (European) international law as it was in the mid to late eighteenth century.

At that time, international law made an important distinction between colonies that were conquered by military force or ceded by treaty, and colonies that were established with the settlement of essentially vacant land. The conquest or cession of a nation formerly under another political power did not affect the pre-existing legal system, although that system could be changed by executive or legislative action after conquest. In the case of a nation ceded under a treaty, the treaty could limit the sovereign’s subsequent law making powers. (An interesting example is the different legal systems operating within the United Kingdom: Scotland has a legal system based on a civil law approach, whereas England has a common law system). In contrast to conquered and ceded colonies, a settled colony did not have a pre-existing legal system that could continue to operate.

From a legal perspective, Australia was settled. The British considered Australia terra nullius, a land practically unoccupied, without settled inhabitants or settled law. The British knew Aboriginal people inhabited Australia. However, because they were hunters and gathers and not farmers, and because they did not live in villages, the British wrongly concluded Aboriginal people did not own their lands. According to Jennifer Clarke (1999), under international law at the time, “terra nullius included territory occupied by ‘backward peoples’ lacking European forms of government and ‘failing’ to cultivate their territories”.

From April to August 1770, without the consent of the Indigenous peoples, Lieutenant (later Captain) James Cook landed at a number of sites on the eastern coast of the Australian mainland and claimed possession of the eastern part of the Australian continent for the British Crown. On 22 August 1770 on Possession Island off Cape York, Cook took possession “of the whole eastern coast, from latitude 38°S. to this place, latitude 10.5°S., in right of His Majesty King George the Third”. He named the area New South Wales. Cook specified 38°S because he first encountered the east Australian coast at this latitude. Incongruously, the 38th parallel passes through the greater city of Melbourne, about one third of the way down Port Phillip Bay. Geelong and the southern suburbs of Melbourne were not included in Cook’s original claim of British possession. Although Cook was not the first European to sight Australia, Cook’s claim paved the way for the subsequent British occupation of Australia and it was the accuracy of Cook’s maps that enabled the reliable return of British ships.

Captain Arthur Phillip led the British occupation of Australia, arriving in Botany Bay on 18 January 1788, before establishing a penal camp at Sydney Cove without the consent of the Eora peoples on 26 January 1788. British sovereignty over a large part of Australia was declared on 7 February 1788 when Judge-Advocate David Collins formally proclaimed Captain Phillip as Captain-General and Governor-in-Chief of New South Wales with a territory extending from Cape York to South Cape in Van Diemen’s Land on the east to all the country inland westward as far as the 135th degree of east longitude and including all the adjacent islands in the Pacific Ocean. This equates to present day Queensland, New South Wales, Victoria, Tasmania, and the eastern half of South Australia and the Northern Territory. The boundary was extended westward to the 129th meridian of longitude (the present day Western Australian boundary) in 1825. Western Australia was occupied from 1829, with the eastern boundary at the 129th meridian confirmed in 1831.

Consequently, from the British perspective, the English legal system progressively replaced the Indigenous legal systems from 1788, 1825 and 1829 (from east to west). From these dates of “occupation”, the resident Aboriginal peoples and Torres Strait Islanders became British subjects, beginning with the residents of the then territory of New South Wales on 7 February 1788. The land and its people - both the Indigenous people and their colonisers - were subsequently subject to British Parliamentary rule and the protection of the English common law. However, early Aboriginal experience of the protection of British law was poor. Because they were not Christians, Aboriginal people were not allowed to give evidence in court. It was thought they would not understand that God would punish them if they lied. As a result, Aboriginal people could not tell the court what happened when European settlers attacked and killed their people. The settlers were safe from prosecution provided they did not give evidence against each other.

The doctrine of terra nullius was most clearly implemented in 1835 when Governor Bourke annulled John Batman’s attempt to buy land from the local Aboriginal people in the Port Philip District (Victoria) through a treaty. Bourke held that all of New South Wales from Cape York in the north to Wilson’s Promontory in the south, from Norfolk Island in the east and as far west as the border with Western Australia is the Crown’s to distribute. The doctrine of terra nullius was endorsed by the New South Wales Supreme Court in 1847 (Attorney-General v Brown) and confirmed by the Privy Council 1889 in Cooper v Stuart:

“There is a great difference between the case of a colony acquired by conquest or cession, in which there is an established system of law, and that of a colony which consisted of a tract or territory practically unoccupied with settled inhabitants, or settled law, at the time when it was peacefully annexed to the British dominion. The colony of New South Wales belongs to the latter class.” (Cooper v Stuart)

Although the High Court’s Mabo decision (Mabo v Queensland (No. 2) (1992)) set aside the doctrine of terra nullius, it reaffirmed the legal theory that the Australian colonies were acquired by settlement and not by conquest or cession. Justice Brennan explained that the Mabo decision does not affect the legality of Australian sovereignty from the perspective of the Australian courts.

“The acquisition of a territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state.”

Subsequent efforts before the High Court of Australia have failed to argue that remnants of Aboriginal sovereignty or customary Aboriginal law continue. The High Court has also rejected the argument that the application of Commonwealth or state laws to Aboriginal people requires their acceptance, adoption, request or consent (see Coe v Commonwealth (No. 2) (1993) and Walker v New South Wales (1995)).

From English law to Australian law

The evolution of Australia’s legal system, from the English legal system, can be divided roughly into five phases, recognising that the specific periods for each of the steps are indicative and the actual dates can vary substantially for each of the six colonies/states:

1. military government (1788-1820s);
2. British colonial government (1820s to 1850s);
3. responsible self-government (1850s to 1900);
4. federal self-government (1901 to 1940s); and
5. independent and sovereign government (1940s to today).

Military government (1788 - 1820s)

The colony of New South Wales began as a prison camp under the personal rule of the governor, with the support of the army. All legislative, executive and judicial power was vested in the governor. The New South Wales Courts Act 1787 (UK) and Letters Patent from the King dated 2 April 1787 ensured that the new colony had a basis for law enforcement. These instruments established a royal prerogative court of civil jurisdiction and a statutory court of criminal jurisdiction. The criminal court first sat on 11 February 1788, and the civil court sat within a few months of colonisation. The governor also had the power to declare martial law if necessary, and martial law was declared on a few occasions in the first few years of the colony. The King also issued formal instructions to Captain Phillip that empowered him to establish the first British colony in Australia and to make grants of land and issue regulations for the colony.

From 1788 to the 1820s, the Australian colonies essentially operated under a form of military government oversighted by autocratic governors that were appointed in London. While this was considered appropriate for convicts, its appropriateness for free settlers was questioned in London by influential voices including Jeremy Bentham. To address these concerns, the Imperial Parliament in Westminster passed two laws in 1823 and 1828.

British colonial government (1820s - 1850s)

The New South Wales Act 1823 (UK) repealed the New South Wales Courts Act 1787 and authorised the establishment of a Legislative Council and Supreme Court in New South Wales, and a Supreme Court in Van Diemen’s Land.

The King on the advice of the British Secretary of State could appoint between five to seven members to the Legislative Council to advise the New South Wales Governor in the exercise of his legislative powers. Majority Legislative Council opposition could, in normal circumstances, defeat a law proposed by the Governor. In addition, the Council had control over local appropriation of revenue. However, the New South Wales Governor could appoint members to the Legislative Council to fill temporary vacancies, retained the sole power to initiate proposed laws and veto amendments from the Council. Decisions of Governor and Council remained subject to veto by the British Government. Proposed laws had first to be certified by the Chief Justice of the Supreme Court as compatible with English law, and each proposed law was required to be set before the British Parliament.

In 1825, an Executive Council was created to advise the Governor in the exercise of his executive duties. In practice, until 1856 in New South Wales, the Governor’s appointments to the Executive Council were largely the same people appointed to the Legislative Council. This coincidence of membership laid the foundations for the emergence of Cabinet government.

The New South Wales Act of 1923 also provided that Van Diemen’s Land could be proclaimed as a separate colony, which happened in 1825. A Legislative Council, similar to the one in New South Wales, was also established in Van Diemen’s Land in 1825. (Van Diemen’s Land became Tasmania on 1 January 1856 in an effort to rehabilitate its previous image as a penal colony for incorrigible convicts).

The Australian Courts Act 1828 (UK) ensured that the then laws of England would be applied in the then two Australian colonies: New South Wales and Van Diemen’s Land. Prior to the full reception of English law, only that much of the statute law and common law of England that was applicable to the local situation was in force in the Australian colonies. This reception of English law occurred on 28 July 1828. Later statutes of the Westminster Parliament did not apply in Australia unless they were specifically passed for or extended to the colonies. Hence the Australian Courts Act marks the beginning of the evolution of Australian law. Because of their different histories and circumstances, the recognised dates of reception of English law vary from state to state.

• New South Wales, Tasmania, Victoria, and Queensland: 28 July 1828;
• Western Australia: 1 June 1829;
• South Australia: 28 December 1836; and
• Northern Territory: 22 September 1863.

Today, each state and territory’s Imperial Acts Application Act defines the date of reception of English law, and the British statutes that continue to operate in that state or territory.

The Australian Courts Act 1828 (UK) also enlarged the Legislative Council to between 10 and 15 members and deprived the Governor of any right to enact legislation against the wishes of the majority of the Council. Taken together, the 1823 and 1828 Acts made the change from military colonies to settled Crown colonies.

Whereas the other colonies were established as, or by subdividing, New South Wales, Western Australia was established under the Western Australia Act 1829 (UK). The long title for this act raises some interesting questions about the recognised name of the Australian continent at that time, “An Act to provide Â… for the Government of His Majesty’s Settlements in Western Australia, on the Western Coast of New Holland”.

The Australian Constitutions Act (No. 1) 1842 (UK) further expanded the number of members in the previously fully appointed legislative chamber in New South Wales and provided that two-thirds of the 36 members would be elected, thus beginning the transition from nominee government to representative government. Although the Governor was removed as a member of the Legislative Council and could no longer participate in its discussions, the Governor could withhold assent to legislation recommended by the Council. However, the executive branch of government remained unassailable by the legislature, being responsible only to the Colonial Office in London. Thus, the 1842 Act did not establish responsible government as the Governor still had overriding authority and Executive Councillors were not required to be members of or responsible to the Legislative Council.

The Australian Constitutions Act (No. 2) 1850 (UK) made similar provisions for partially elected legislative chambers in Van Diemen’s Land, South Australia and the new colony of Victoria (previously the Port Philip District of New South Wales) foreshadowed by the Act.

Responsible self-government (1850s - 1900)

More importantly, the Australian Constitutions Act (No. 2) 1850 (UK) was the initial charter of responsible self-government for the Australian colonies. It allowed the colonies to establish their own constitutions with fully elected legislative assemblies, the Westminster system of representative and responsible government, and wide-ranging powers of self-government. The colonial constitutions had to be reserved for the Queen’s assent, which was given to the New South Wales, Victorian and Van Diemen’s Land constitutions in 1855. According to Lumb (1977), the proposed constitutions for New South Wales and Victoria exceeded the original authority of the Australian Constitutions Act (No. 2) and, therefore, required further Imperial legislation (and amendments) before the Queen gave her assent. The Imperial government rejected South Australia’s first draft constitution, but its second draft constitution received assent in 1856 without Imperial amendment.

A separate Queensland colony was anticipated in the New South Wales constitution of 1855. The Queensland colony was created in 1859 and adopted it own constitution in 1867. Critical provisions of the Australian Constitutions Act 1850 (UK) did not extend to Western Australia because it was still receiving convicts from the United Kingdom at that time. Consequently, Western Australia’s path to representative and responsible government was slower, only being achieved in 1890.

Independent self-government raised the issue of whether the Australian colonies could enact laws that were in conflict with the laws of England. Justice Benjamin Boothby, of the South Australian Supreme Court, repeatedly struck down South Australian laws because they were contrary to British statutes or the English common law. This issue was resolved by the Colonial Laws Validity Act 1865 (UK), which confirmed that the colonial legislatures could override most received British statutes and common law. This Act was welcomed at the time as it confirmed a large measure of autonomy to the colonial legislatures. However, under the Act, the colonies could not override those few British statutes of paramount force that explicitly or implicitly applied to the Australian colonies. Boothby has the infamy of being the only judge to have been removed from the South Australian Bench, in part because he persisted in his views after the passage of the Colonial Laws Validity Act.

Interestingly, the Colonial Laws Validity Act conferred on the colonies a power that is denied to both the Westminster Parliament in London and the Commonwealth Parliament in Canberra. The colonial legislatures could make laws about the operation of the legislature that are binding on future parliaments. This power has been used to entrench elements of the colonial (and later state) constitutions so that they cannot be amended without (for example) a majority vote at referendum. Although the Colonial Laws Validity Act has been repealed, this power to bind future parliaments has been continued through the Australia Act 1986.

Thus, the period from the 1820’s to the 1890’s can be characterised as a transition from despotic government, through partially elected legislative chambers but still with executive governments that were beyond the reach of the legislature, to models of responsible government like that of the Westminster Parliament in London. By 1891, Australia comprised six largely independent, self-governing colonies, each with responsible and representative governments.

Federal government (1901 - 1940s)

The next big step in the development of Australia’s legal system was federation on 1 January 1901. Following a series of constitutional conventions and two referenda in the 1890s, the six Australian colonies “agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland” (Commonwealth of Australia Constitution Act 1900 (UK), preamble).

The centrepiece of federation was the Australian Constitution, which established the new federal government and regulated the relationship between federal and state governments (as the colonial governments were redesignated). The six states continue to have an important role in government of the nation. Section 106 of the Constitution provides that, subject to that Constitution, the constitutions of each state shall continue in force at the establishment of the Commonwealth.

However, federation did not change Australia’s colonial status. The Constitution allowed the Queen and (implicitly) the British government to overturn any law passed by the Australian Parliament within 12 months of its enactment. The Commonwealth and the states remained subject to the Colonial Laws Validity Act 1865. The colonial status of the states was further reinforced by the Australian States Constitutions Act 1907 (UK), which required that any proposed amendments to the state constitutions to be reserved for the King’s assent, and (implicitly) the approval of the British government. Australia’s complete constitutional independence from Britain was achieved by a series of steps long after 1901.

Independent and sovereign government (1940s to today)

When the Imperial Parliament enacted the Statute of Westminster 1931 (UK), it granted sovereignty and independence to the executive and legislative arms of the Commonwealth Government. The Statute of Westminster gave the Australian Parliament power to make laws repugnant to the United Kingdom and it prevented the British Parliament from overriding acts of the Commonwealth Parliament without a request from the Commonwealth. The Statute of Westminster was formally adopted into Australia law in 1942, with the date of effect backdated to the commencement of the Second World War on 3 September 1939. However, it did not apply to the state governments which, technically, remained British colonies until the passage of the Australia Acts in 1986.

The role of the Privy Council in our legal system was virtually eliminated in respect of the federal sphere by two Commonwealth statutes: Privy Council (Limitation of Appeals) Act 1968 and the Privy Council (Appeals from the High Court) Act 1975. In 1978, the seven justices of the High Court of Australia decided unanimously that the High Court would not regard itself as bound by decisions of the Privy Council; this established an Australian common law apart from the English common law. The Australia Acts abolished appeals to the Privy Council from State Supreme Courts in 1986.

The Australia Acts 1986 also terminated the power of the British Parliament to legislate for Australia, and granted independence and sovereignty (under the Australian Constitution) to the states. Australia has thus completed its evolution from six colonies to a sovereign and independent nation.

Sources of Australian law

Understanding the evolution of Australia’s legal system is an important key to identifying the legislation and judicial precedents that apply to a matter. For example, the statute law that applies to Victoria is:

• British statutes up to 1828 in so far as they were applicable to the condition of New south Wales at that time;
• British statutes expressly applying to Australia between 1828 and 1986;
• New South Wales statues passed between 1828 and 1851, when the Victorian colony was established;
• Victorian colonial and state statutes since 1851; and
• Commonwealth statutes since 1901.

As Waller (1995) noted, these laws only apply to the extent that they have not been amended or repealed by a competent parliament since they were first passed. With the enactment of the Australia Acts, the few remaining Imperial statutes, passed by the Westminster Parliament, can be repealed by state parliaments. A similar chart to this one can be constructed for each state and territory to identify the binding judicial precedents from the various English and Australian courts.

Want to find out more?

• Australia’s founding documents
• National Library of Australia: Australian law on the internet
• National Library of Australia: Australian history on the internet
• Scott Bennett’s Australia’s Constitutional Milestones is at the Parliamentary Library (reference Chronology 1 1999-2000 dated 12.10.1999)
• Case-law reports can be obtained from www.austlii.edu.au and scaleplus.law.gov.au. Some interesting High Court case law reports in respect of terra nullius, native title and the place of Aboriginal Law, include:
  • Coe v Commonwealth (1978)
  • Mabo v Queensland (No.2) (1992)
  • Coe v Commonwealth (1993)
  • Walker v The State Of New South Wales (1994)
  • The Wik Peoples v The State of Queensland (1996)
  • Fejo v Northern Territory of Australia (1998)
  • Yanner v Eaton (1999)
  • Yougarla v Western Australia (2001)