Published on 20/05/2007

The Early Legal System

•   In 1801 the courts had developed a rule that assigned convicts could only sue or be sued in the magistrates courts. (Ticket-of-leave and pardoned convicts (known as ‘emancipists’) had the same rights as free ppl.)
•   In 1820 the Supreme Court held that convicts and even ppl that had been pardoned did not have civil rights  the court referred to the case of Bullock v. Dodds (1819) which had held that pardons were not effective in England unless they were issued under the Great Seal.
•   The NSW pardons had not been issued with the correct procedure and had therefore not removed the attaint.
•   The Eager cases held that convicts and ticket-of-leave holders, and those who had been pardoned by the governor before their sentences were complete were subject to the full rigour of the law of attainder  rather than emancipists increasing their rights they were losing them.
•   In 1889, in Cooper v Stuart, the Judicial Committee of the Privy Council confirmed that, in the eyes of the common law, Australia had been settled  this introduced, not only British sovereignty, but also English law.
•   There are three common ways that international law recognizes a country can acquire new territory by; Conquest, cession/ceding and settle.

Powers of the governor

•   From 1788 to 1823 the colony experienced personal rule of the governor which was limited only by directions from Britain through the Secretary of State for the colonies, this could take 6 months  governor was very powerful since there was not even a rudimentary legislature to counter them.
•   The governor was the sole source of legislative and executive power and the final court of civil appeal  although the governor could be sued after he completed his term of office, he was otherwise very much like an absolute monarch.
•   Governors slowly had their powers removed and given to the other arms of govt. – the courts and the legislature.
•   In 1814, the second Charter of Justice, by Letters Patent, established a Supreme Court with Civil, Criminal and equitable jurisdiction with a judge and two magistrates. Parties could appeal to the governor or if over 300 pounds to the Privy Council.
•   The Lieutenant-Governor’s court was established in Van Dieman’s land  these were courts in which political battles about power were fought out in the colonies.

Emancipists v Exclusivists

•   According to David Neal there were three main groups of ppl in the new colony:

1.   Aborigines
2.   exclusivists: mostly ppl that had come to the colony as military officers and free settlers.
3.   emancipists: ppl that had come to the colony and had later been freed; they included the children of such ppl, also included free settlers who sympathized with their aims and felt abused by the military dominance in the colony.

•   The latter 2 groups fought both with each other and against the governor and Britain, struggling to gain ascendancy in the colony  the exclusives wished to dominate and to have certain institutions remain in their hands; the emancipists wished to extend their own power and to be allowed to be involved in the organs of power in the colony – such as participation of jurors, voting and so on; increase level of protection of civil rights in the colony.
•   Many emancipists became quite wealthy; the land grant system meant that they owned amounts of land which would have been quite impossible in England, they also became dominant business figures; they became a lot richer than what they would have ever been had they remained in England.
•   Both groups argued for their ‘birthright’ as British, campaigning to move the colony from a penal to a free colony, with trial by jury, and representative govt  this battle was mostly fought in the courts because there was no political arena for disputes and deliberation, so the courts provided this arena.
•   All colonies benefited from the fight for trial by jury and representation  it was significant because it was carried out by ppl using arguments about the rule of law.
•   Neal argues that the concept of the rule of law (which he defines as having at least three elements: general rules laid down in advance, rational arguments from those principles to particular cases, and, at least in a developed form, a legal system independent of the executive for adjudication of disputes involving the general rules) was deeply imbedded in the colonists minds.
•   David Neal, The Rule of Law in a Penal Colony: Law and power in early NSW, 1991: [p24], Kables’ case introduced a change into the inherited legal framework convicts in NSW would enjoy the right to hold property and to sue in the colonies courts to protect that property, they would not have been able to do so in England. The judges needed to decide just how far perculiar circumstances of the colony would justify further departures from English law; this committed considerable political power to their hands.

The Fight for Trial by Jury

•   In 1819, a petition to the monarch was made by the emancipists (in the form of 1300 landholders) asking for trial by jury for civil as well as criminal matters.
•   In England property qualified a person to serve on a jury, vote and to stand for office, and ppl with equivalent wealth could do these things  the issue was so important to the emancipists that they actually sent representatives to London to argue it for them.
•   Criminal courts in NSW use military panels instead of juries, governor had commanding right to choose the panel but in practice this was done by the commanding officer in garrison  there was no right to challenge the choice which proved to be a problematic issue especially in issues concerning the military  colonists objected to this as well as military officers because they did not want to be drawn to civilian life in this way.
•   A petition in 1821 sought to reverse the Eager decisions about felony attaint  trial by jury was important because the right to serve on a jury was regarded as symbolic of citizenship.
•   The 1823 NSW Act (4 Geo IV c 96) followed – it provided that the governor’s pardon was to have the effect of a pardon under the Great Seal (thus reversing the effect of the Eager cases) and it statutorily defined the institutions of gov’t including a legislative council of seven ppl nominated by the governor, and a Supreme Court, but it did not provide for trial by jury in criminal cases, and it provided for juries in civil cases only if both parties agreed.
•   The Act established intermediate courts without mention of juries, governor made proclamation allowing trial of trial by jury to those courts  Attorney- General obtained an order from the Supreme Court to compel them: R v Magistrates [1824].
•   Magisrates then published a list of jurors-which excluded emancipists.
•   Colonial officer persuaded the Imperial Parliament in the Australian Courts Act of 1828 to abolish jury trial in the immediate courts until it was established in the Supreme Court.
•   Jury trials were left to the judge to decide in civil cases and the governor and council were given the power to introduce trial by jury.
•   Magistrates continued to exclude emancipists, on the basis that they were attained, until the Jury Act 1829 (NSW) was amended in 1830.
•   Jury trial in criminal cases was finally won in 1833.

The Governor's Powers and the Evolution of an Independent Court

•      Civil courts were established by Letters Patent (letters from the Crown containing public instructions or directions)  royal prerogative, not by statute.
•   Governor court hear appeals from the civil court and was final in a matter valued less that 300 pounds, for a matter valued more there could be appeal to the Privy Council.
•   In 1814, the second Charter of Justice set up 3 civil courts by Letters Patent  the Governor’s Court of the Deputy Judge- Advocate and 2 members appointed by governor could hear civil pleas valued at less than 50 pounds; Lieutenant- Governors Court est. in Tasmania-no appeal; Supreme Court with judge and 2 magistrates appointed by the governor  heard all civil matters, it could review governor’s actions.
•   In response, in 1818 the British Government appointed John Bigge to investigate the situation in NSW, he issued 2 reports which were favourably received in England, and in 1823, the Imperial Parliament passed legislation to enact many of their recommendations.
•   The 1823 New South Wales Act (Imp) (4 Geo IV c 96) – est. a new Supreme Court with equity and full civil, ecclesiastical and admiralty jurisdiction (except for divorce) and in which judges were paid salaries instead of fees for the first time.
•   The act emphasized the power of the new Supreme Court by requiring by s29 that no law could be laid before the new Legislative Council of residents before the Chief Justice of the Supreme Court had certified that the law was not repugnant to the laws of England.
•   From the Supreme Court, an appeal in civil matters lay to the governor (who could call on the chief justice for advice), and from the governor to the Privy Council.
•   The criminal jurisdiction of the Supreme Court continued to have a jury of seven military officers and also had the power to review magistrates’ decisions.
•   The Act however did not introduce trial by jury which was one of the emancipists’ chief concerns  this was introduced 5 years later by the Australian Courts Act.
•   These court arrangements continued after the 1828 Australian Courts Act (Imp) (9 Geo IV, c 83) except that for the first time there was no appeal to the governor from the Supreme Court and in its place was a direct appeal to the Privy Council  within the colony, the judiciary had become completely separate from the executive for the first time.
•   The Act of Settlement of 1701 had conferred independence on the judiciary in England, judges were appointed by Royal Commission and therefore at the pleasure of the British govt; although the courts were not independent of the British govt, the courts became independent of the governor.

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Judicial committee of the Privy Council

•   Despite the 1865 Act, english law and justice continued to have a major influence on Australia’s law due to the fact that cases could and were appealed on a number of occasions to the JCPC. This was so up until 1986.
•   The JCPC had similar grass roots through the 12th and 13th centuries in what were then known as the King's council. Also through the 16th and 17th centuries during the tudor and stuart dynasties where Conciliar Courts were created in opposition to the common law courts in an attempt to tame the effects of them.
•   Initially, the courts were favoured for their simplicity in procedure but soon became feared for their injustices  became a political means of establishing criminal charges against enemies, courts were known to employ the inquisitorial system.
•   In 1641, courts' court-like powers were abolished after much dislike of the courts. The council now became a political advisory body similar to todays Cabinet. Once the council's numbers became too large, a smaller sub committee began to meet in the king's private chamber (Cabinet).
•   The Privy Council today consists of 300 members and only sits on rare occasions, when the queen meets with Cabinet this is still referred to as the privy council.
•   The council continued however to collect and put forward petitions to the king on behalf of residents in the colony. These residents favoured this form of complaint as it was seen to be free of any bias as it was a body outside of the colony.
•   It became common practice that petitions frwarded by the privy council were being forwarded to a group of judges, mainly members of the house of lords, for considerartion. It was then felt that theere was a need to systemise the appeals process and so the parliament passed the Judicial Committee Act which created a a formal judicial committee whose job was to hear appeals from the colonies.
•   The appeals received would be considered and then advice to the queen would be forwarded to either allow or denie the appeal. An appeal to the privy council was said to be an appeal to the queen in council. For this reason the privy council did not issue judgments. Rather an Order in council was issued.
•   The Privy council had two flaws:-

1.   the costs of appealing to the privy council was not affordable to many in the colony and the main people it proclaimed to benefit could not gain access.
2.   The Privy Council was never really a colonial court and was accused on many occasions of being insensitive to the conditions of the colony.
•   When the Australian Constitution Bill was first drafted, it attempted to limit appeals to the Privy Council. Joseph chamberlain (Colonial secretary) requested some amendments and these were agreed and supported by colonial judges. Appeals from high court on question of constitution were limited but appeals from state courts on common law were available.
•   The latter abolished by the Australia Acts 1986  The appeals were recommended to be kept by chamberlain to maintain symbolic ties with the empire and to preserve English financial interests.

The Governor's Powers and the Fight for Representation

•   England judges had no power over parliament during this period the judges could say that legislative action in the colony was wrong because it was repugnant to legislation of the UK parliament.
•   Judicial review of legislation in Australia began when Ellis Bent, the Judge Advocate, held the Port Regulations of Sydney in 1815 issued by Governor Macquarie in 1800 to be unlawful because they restricted free ppl from leaving the colony and this was repugnant to English free trade legislation  Bent argued that he was only required to follow the governor’s lawful orders.
•   Counsel held that if the colony had been settled, the law of England was in force in so far as it was applicable, so the governor was required to convene an assembly elected by freeholders and not to pass legislation without the advice of a parliament of some kind.
•   The battles about the governor’s powers and the petitions for trial by jury and representation eventually led the colonial office to establish a royal commission.
•   The New South Wales Act 1823 was passed which gave the colony some elements of representative self-govt  ‘representation’ however consisted of five to seven unelected members of a legislative council; these men were elected by the Crown, and the governor, with their advice, could make laws for ‘the peace, welfare and good govt’ of the colony, so long as they were not repugnant to the New South Wales Act, the Charters of Justice or the laws of England.
•   Governor had the sole right to lay bills before the council, it could not become law without the consent of the majority of the council unless the governor was convinced it was essential for the peace and safety of the colony, then only one member of the council needed to assent.
•   Laws had to be laid before the imperial parliament and certified as not repugnant by the chief justice; crown could disallow legislation within 3 years.
•   Australian Courts Act expanded The Legislative Council to 15 members and chief justice’s certificate requirement was dropped.
•   NSW’ first constitution was first established in 1842 by the Australian Constitution Act (No.1) increased Legislative Council to 36, of whom 24 were elected on a property-based franchise, had to have significant property qualifications & governor was subject to the legislature  also had control over taxation revenues. Expanded to 54 members in 1852; introducing the notion of three separate branches: legislature, evecutive and judiciary; governor was no longer considered to be part of the legislature.
•   Agitation from the other colonies for separation from NSW and the continuing pressure for responsible or self-govt led to the passing of the Australian Constitution Act (No 2) (Imp) in 1850 separated Victoria from NSW and gave it a council like that of NSW, the legislative councils were given power to set up bicameral legislatures. Act also provided for eventual creation of Queensland.
•   Colonies were encouraged to submit a draft constitution to London, this act conferred upon the colonial legislatures the power, subject to final approval by the imperial authorities, to remodel their constitutions to accommodate full responsible govtWillian Charles Wentworth drafted the NSW constitution during the 1850s and was passed in the Imperial Parliament in 1855.
•   All constitutions provided for 2 houses – lower house (Legislative Assembly) and upper house (Legislative Council).
•   WA did not participate till 1890 and SA was democratically ahead of most of the world, no property qualification was needed to be elected to the lower house and a very low one for the upper house.

Reception of English Law

•   The common law rule was formalized in the Australian Courts Act 1828 s 24 to make it clear that all English law which was in force on 28 July 1828 was in force insofar as it was applicable to the new colony known as the date of reception, dates differ for states not part of NSW; this act was passed by the Imperial Parliament (that is, the British Parliament legislating for the empire).
•   At reception date all applicable statutes and common law were taken to have been received into the colony’s jurisdiction.
•   The doctrine of repugnancy applied to laws passed by colonial legislatures  if they were repugnant, they were void.
•   The doctrine of paramount force applied to determine which new statutes of the imperial parliament applied in the colonies - Phillips v Eyre (1870) held any English Act which was applicable to a colony ‘by express words or necessary intendment’ would be in force in the colony.
•   In SA these doctrines were applied with such ferocity by Justice Benjamin that SA govt was made impossible  this led to the Imperial Parliament to formalize the doctrines of repugnancy and paramount force in the Colonial Laws Validity Act (Imp) of 1865, which applied to all states:
I.   ss 2 – Any act which is repugnant, shall be read subject to such act, order or regulation, and shall, to the extent of such repugnancy, but not otherwise be and remain absolutely void and inoperative.
II.   ss 3- provided that no colonial laws was to be invalidated on the basis of repugnancy unless it was inconsistent with British legislation specifically directed at the colony.
•   The Colonial Validity Act was important as it sent a message to judges and colonial legislatures that their task was not to replicate English society within the colonies but rather develop bodies of law, in comformity with British notions of justice, but responsible to the various needs of colonial societies wherever they might lie.
•   In State Government Insurance Commission v Trigwell (1979), Gibbs J offered a view as to the means by which principles of English Common law decided after reception could nevertheless be seen to form part of the common law of Australia.

Constitutional Independence

•   In the eyes of the International community, Australia had no identity apart from its membership in the British Empire.
•   First hint of change in 1919, when Australia and Canada were permitted to sign the Treaty of Versailles themselves.
•   ‘Balfour Declaration’ which signaled an important shift in the nature of the r’ship between Great Britain and the so-called ‘dominions’ no longer was there to be a master-servant r’ship, instead the empire was a partnership.
Statute of Westminster 1931
•   Reiterated in its preamble the essence of the Balfour Decleration.
•   s 4: provided that thereafter, the British Parliament would not pass legislation applying to any of the dominions unless it was at the dominions request.
•   s 2: formally repealed the last vestiges of the repugnance doctrine as contained in the Colonial Laws Validity Act.
•   s 3: formally conferred upon the dominion parliaments the power to make laws of extra-territorial application (that is laws which could apply outside the country’s own borders).
•   The problem was, states especially NSW, which at the time was embroiled in a controversy with the Commonwealth over financial power, did not want to server their direct constitutional links with Britain.
•   So, s 10(1) was an express provision included which said that the operative provisions of the statute were not to come into effect vis a vis a dominion until the dominion passed legislation to that effect In Australia this happened 11 yrs later, when the Commonwealth Parliament enacted the Statute of Westminster Adoption Act 1942.
•   In 1941, Australia separately declared war against Japan. 1942, Australia’s first embassador was accredited, to the US.
•   Though the states retained a direct colonial link with the Imperial Government and were still bound by the Repugnancy doctrine contained in the Colonial Laws Validity Act.
•   Australia Acts (Request) Acts was passed in 1985 which requested the British and Commonwealth parliaments to pass statutes by which the UK would give up whatever remaining legislative powers it had over the states.
•   At the same time, the Commonwealth parliament, pursuant to the Statute of Westminster, passed the Australia (Request and Consent) Act 1985, requesting that the UK give up whatever power it might still have over Australia as a whole.
•   In 1986, British and Commonwealth parliaments each passed virtually identically-worded statutes called the Australia Acts central provision s1: ‘No Act of the Parliament of the UK passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or Territory as part of the law of the Commonwealth, of the State or of the Territory  journey to independence was fully complete.

Native Title and Customary Law

•   First major affirmative step to recognise and preserve the strong Aboriginal connection with the land was the passage of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which allowed blocks of land in the Northern Territory to be granted to land trusts if traditional Abo. land ownership could be proven.
•   In Mabo v Queensland (No. 2), a group of islanders began a fight to have their traditional land ownership recognized. In the courts decision, it recognized that Australia was not terra nullius; influenced by developing notions about human rights, the court held that it was appropriate to change the common law rule to recognise that the Crown’s radical title co-existed with a beneficial native title.
•   Wik Peoples v Queensland (1996) held that native title was not extinguished by the Crown’s granting of pastoral leases extended considerably to the geographical area over which native title could potentially arise.
•   In 1993 Cth parliament passed the Native Title Act that set up a body called National Native Title Tribunal for the implementation of common law as laid down in Mabo.

International law principles impinge on our domestic common law system in different ways. Australia is party to, and has obligations under, a number of international treaties and conventions - though international law is not subject to the same enforceability as domestic law.