LAWS1006 Lecture Notes - Lecture 2: Lachlan Macquarie, Jeffery Hart Bent, Terra Nullius
16 May 2018
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Department
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Kelly He
2- The Australian Legal System
• Australia shares most of its legal principles and doctrines with that of England and other
countries of the Commonwealth
• The common law was maintained by Australia and hence a product of Australian experience,
though was ultimately passed down and traced back to its English establishment
Arrival of the common law in Australia
• The British declared Australia to be terra nullius, or, in other words, land belonging to no one
• They could not see any recognisable legal system, or any rules about land ownership. They
believed that since the land was not seemed to be owned or used for agricultural or other
purposes, that it was belonging to no one
• Status of colonial law was dependent on whether the land was conquered, prior inhabitants
gave up the land, or it was an unoccupied settled colony
• As the nomadic Aborigines were not seen as owning land or having a developed legal or
political system, the British had SETTLED, rather than CONQUERED the Australian colony
• Hence common law was brought to Australia and settled with the introduction of British
sovereignty
• NSW Courts Act 1787 (Imp): enabling establishment of a criminal and civil jurisdictions
• Letters Patent (First Charter of Justice) 1787, established two courts (Civil and Criminal)
Uncertainties and reception
• It is generally said that common law, equity and statute law was transplanted in Australia on
the day of settlement i.e. 26th of January 1788
• Yet limitation pointed out by William Blackstone in his Commentaries: Colonists carry with
them only so much of the English law as is applicable to their new situation and the condition
of an infant colony.
• To get rid of this uncertainty and doubt regarding how applicable English laws were to
Australia, the Imperial Parliament (British Parliament) passed the Australian Courts Act 1828
which ruled that all of the laws and statutes present in England would be readily applied to
New South Wales back then included QLD and Victoria and Van Diemens Land, where
applicable to the conditions. The Supreme Court would decide if the laws were applicable to
the colonial conditions
• Date of reception of English law in NSW and Van Diemens Land – 25th July 1828 with the
Australian Courts Act. For WA: 1st June 1829 with the Interpretation Act 1984. And for SA, 28th
December 1836 with Acts Interpretation Act 1915. And for ACT, it received English law on the
date the Territory was proclaimed: 1st January 1911 with the Seat of Government Acceptance
Act 1909. Lastly, NT on date it was proclaimed, 1st January 1911 with Northern Territory
Acceptance Act 1910
• In State Government Insurance Commission v Trigwell, Gibbs J wrote: the common law which
was adopted is not frozen in the form which it assumed in 1836…parts of the common law which
are suitable to a more advanced state lie dormant until occasion arises for enforcing them…
• Yet it is commonly accepted and acknowledged now that courts are able to develop and modify
the common law
Creation of the Australian court structure
• Shortly before the First Fleet left England, Legislation passed to create a criminal court in NSW,
and Letters Patent (letters from the crown containing direction) were issued in order to create
a civil jurisdiction (authority to decide). They were established once the fleets arrived but
mostly staffed by military and run by military
• Ellis Bent, the first civilian judge in 1810 found that there as interference by the military
authorities including Governor Macquarie
• His brother, Jeffery Bent, was appointed a judge in NSW and both sought to establish judiciary
independence away from the executive and legislature (both in the hands of the Governor)
• Governor Macquarie demanded London dismiss these judges, ignoring the principles of
English common law during his rule
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Kelly He
• Further pressure came from freed convicts or emancipists, who wanted to increase protection
of civil rights in the colony, and have the principle of trial by jury embedded into colonial law
• 1818: British Government responded to demands and dismissal of Bent by Macquarie, and
appointed John Bigge to investigate the situation in NSW
• Bigge recommended that the court system need be restructured
NSW Act 1823 (imp)
• Act created the Supreme Court of NSW and Supreme Court of Van Diemens Land. Even
though the Supreme Court had been established by Letters Patent in 1814 already, it was
noticeably ineffective due to the interference by military
• The acts gave the judges of the new courts like jurisdiction and authority in NSW and Van
Diemens Land…as the judges of the cours of Kings Bench, Common Pleas and Exchequer in
England
• Hence the security and independence established by the 1689 Bill of Rights and 1701 Act of
Settlement for English judges were formally rectified for NSW and Van Diemens Land
• The Supreme Court was given jurisdiction to ensure that no part of the legislation was
repugnant (inconsistent) with that of England
• However, trial by jury had not yet been established completely and was allowed only in some
cases – not until 1833 under the Australian Courts Act 1828
• NSW Act also created the Legislative Council – 5-7 members nominated by the Crown. This
was a crucial evolvement as the Governor would have his independent right to initiate
legislation, but a unanimous agreement by the Legislative Council was necessary for that to
become law except in certain cirucmstances
• The first Chief Justice of the new Supreme Court of NSW was Sir Francis Forbes, one of the
drafters of the NSW Act, and the rule of law in Australia is much owed to him as he very much
wished to establish a new judicial independence
• As evident, colonies generally had court systems by the time of federation, including the
Supreme Court, and intermediate civil/criminal court and at the lower tier, the magistrates
courts – remained in place except for in two mainland territories and Tasmania (population)
• So during the first years after British arrival, it was the Governor that had most political power
with his body of advisors though they could not do much to constrain him – the NSW Act
began the transformation of the colony from de facto autocracy to a state bounded by
constitutional rules.
Evolution of constitutional government in Australia – NSW Act and onwards
• The NSW Act was a key evolution in Australias constitutional government
• A further event that was important was the appointment of Governor Darling in 1825, since he
had created the Executive Council with members appointed by the Crown, who would give
permission and consent to acts relating to military, civic and commercial development of NSW
• NSW now possessed a Supreme Court with the same jurisdiction as the English courts, a
Legislative Council and an Executive Council which limited the power of the Governor –
transition from military to civil government
• YET the NSW Act was only meant to be experimental and ceased by 1828
• However, this was the year the Australian Courts Act 1828 (Imp) was introduced, yet this was
only temporary, but incorporated these measures:
Criminal matters must now be ired by jury
Increased size of Legislative Council to 10-15 members
Legislative Council gained even more power, could veto a proposed law
Bestowed limited self government on the colony
Decalred that the law of England that applied to NSW was the law of England as at 24th
July 1828
• The 1842 Australian Constitutions Act (No 1):
Expanded Legislative Council to 36 members, 2/3 had to be elected, 1/3 nominated by
Crown
Governor no longer part of legislature
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Document Summary
Arrival of the common law in australia: the british declared australia to be terra nullius, or, in other words, land belonging to no one, they could not see any recognisable legal system, or any rules about land ownership. Uncertainties and reception them only so much of the english law as is applicable to their new situation and the condition: to get rid of this uncertainty and doubt regarding how applicable english laws were to. New south wales (cid:523)back then included qld and victoria(cid:524) and van diemen(cid:495)s land, where: date of reception of english law in nsw and van diemen(cid:495)s land 25th july 1828 with the applicable to the conditions. The supreme court would decide if the laws were applicable to the colonial conditions. Australia, the imperial parliament (british parliament) passed the australian courts act 1828 which ruled that all of the laws and statutes present in england would be readily applied to.
