The Australian Legal System

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The Australian Legal System

Overview
* The continent now known as “Australia” has a very long history of occupation * Aboriginal people have lived on the continent for at least 40 000 years. European settlement of the continent has been relatively recent

Aboriginal Culture
* When English settlers arrived at Sydney cove in 1788, there were approximately 500 aboriginal tribe living in different parts of the continent. The combined population of the tribes is thought to have been approximately 315,000

Customary Law
* The members of each aboriginal tribe observed detailed rules of conduct. The collection of rules observed by the tribe is today referred to as customary law (or tribal law) * Customary law was very different from modern Australian law * Customary law has been recognised as a genuine legal system * In 1971, the federal court of Australia examined the traditional way of life of the Yolngu people of Arnhem Land. Justice Blackburn had this to say about the regulation of tribal affairs among the Yolngu

English Settlement in Australia
* English colonisation of the continent of Australia occurred on 26 January 1788 with the arrival of the First Fleet at Port Jackson Terra nullius
* In the 1700s, new territory discovered by England was classified as either: * Territory acquired by treaty or military victory in which cases the existing legal institution was retained * Territory that was terra nullius i.e the inhabitants were not recognised and the English legal system applied * For Australia terra nullius was applied

* Customary law ( the legal system of the local aboriginals) was not recognised by the British crown nor by the settlers themselves

Early Colonial law
* In it’s early years, the colony of NSW was a penal colony (prison settlement). Most settlers who arrived with the First Sleet were convicts who has been transported to the colony as punishment for their crimes

Colonial Law
* Despite having its own parliament and courts the colony of NSW remained dominated by English law * Most of the laws that were in force in the colony were English laws * The courts were obliged to follow the decision of English courts * The new parliament of NSW was forbidden from enacting any new law that was inconsistent with English law

Legal independence from Britain
* The process of legal independence can be said to have begun in the year 1850. At this time, the territory of NSW included modern day Victoria, Queensland and the Northern Territory * The only other colonies in existence were Van Diemen’s land (later Tasmania), Western Australia and South Australia. (Victoria became a separate colony in 1851 and Queensland in 1859).

Legal Independence
1965: The British Parliament removed the requirement that colonial laws had to be consistent with British laws. This gave the colonial parliaments greater freedom to make their own laws - There were now six colonies (NSW, Victoria, QLD, SA, Tasmania & WA) and each colony had its own system of government.

Federation
* Difficulties were starting to emerge with the colonial system. Some of the problems included: * Difficulty travelling from one colony to another
* Trade between the colonies were restricted as some of the colonies charged taxes on goods from other colonies (tariffs) * Defence of the colonies from other European powers could not be assured, as Britain was a long way away! * To overcome these problems federation (joining) of the colonies into a single nation under a nation government was proposed in 1867 * In order to form a federation, the colonies needed to agree to a federal constitution * The first draft constitution was presented to the colonial governments in 1891 * 1899: Draft constitution put to referendum and approved * 1900: Constitution put to the British

* 1900: British parliament passes the Australian constitution act * 1901:...
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