Western legal systems are traditionally divided into civil and common law jurisdictions.

The civil law legal system of codified laws became predominant in continental Europe and its colonies.1 In England, however, the common law legal system has remained under constant development for at least a millenium and has traditionally relied upon precedent set through cases (case law).2 British colonisation of Australia began in 1788, and by this time the expansion of the British Empire meant that there was wide colonial adoption of the common law system across the world.3

Although civil and common law systems have fundamental differences in their approaches to the creation and application of the law, there are some similarities in the basic concepts and institutions that comprise them. These western legal traditions greatly, and obviously, influenced the colony of New South Wales (NSW) when it was founded in 1788, and subsequently the development of the Australian legal system.

The immediate imposition of foreign laws

From the very start, a European understanding of law guided the development of the Australian colonies. Although it is now widely accepted that the indigenous communities had developed complex systems of law and property, European traditions of ownership and law fundamentally conflicted with the myriad of cultures of the vast Australian continent.4

International legal principles regarding the acquisition of territory were applied with imperialist perspectives and a limited understanding of indigenous culture; they had been developed from European world views.5 This led to an upheaval of indigenous customary laws as the colonies expanded, replacing traditional systems of law and governance with colonial parliaments and English-derived common law.

The acquisition of NSW (which in 1788 covered the entire eastern seaboard) was considered to have occurred through settlement rather than conquest or cession.6 Unlike India and New Zealand, the lack of a permanently established population and organised resistance to British expansion meant that the land could be considered unoccupied — terra nullius — and therefore the law of the settlers could be imported in accordance with international norms.7

No acknowledgement of the existing customary laws was required, ‘for it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them.’8

Parliamentary democracy and constitutional monarchy

The shift towards representative democracy across Europe and its colonies between about 1650 and 1800 had enormous implications for the development of NSW as a colony. Just as the settlers brought English law, they also brought English governance. Although Magna Carta (which is still in effect across Australia) somewhat restrained the powers of the English monarchy,9 it was not until the Stuart Dynasty nearly 400 years later that serious political reform was needed.

James VI of Scotland and his Attorney-General, Sir Francis Bacon, were ardent proponents of absolute monarchism, and when James inherited the throne of England from Elizabeth I (becoming James I of England) the debate over whether the monarchy, the parliament or the courts had sovereignty became an important issue of the 17th century.10

Struggles of authority between the English Parliament and the Crown resulted in the execution of James I’s son and successor Charles I in 1649, and in 1689 the beginning of England’s (and within 20 years the United Kingdom’s) prompt transition to a modern constitutional democracy.11

From this basis the colony of NSW operated much the same, with a bicameral parliament and constitutional monarchy in the British Westminster tradition, a system also used at the federal level since independence in 1901.12 This division of the legislature in the Federal Parliament resembles a hybrid of the United Kingdom and United States’ systems.

Separation of powers is not as extreme as in the American presidential democracy,13 but the upper and lower Houses of Parliament share their names with the United States’ Congress. The Senate is elected in much the same fashion — seats are equally apportioned to the states regardless of population.14 The executive government is formed by the majority party or coalition in the lower house (rather than being a separate entity), following the tradition of the Westminster system.15

The rule of law and separation of powers

It is from these developments that Australian law derives two of its most fundamental aspects. It is evident that colonists to NSW adjusted the legal system they brought with them to meet their needs,16 which was the usual practice: ‘all the laws of the settling nation were regarded as coming into force in the new country in so far as they were applicable to the circumstances’.17 Despite this, two broad concepts of the Western legal tradition that remained at the core were the rule of law and the separation of powers.

The rule of law is best stated as the notion that the law binds all persons and entities: no one is above the law.18 In England, Magna Carta was the beginning of legal limits being placed on the powers of the monarchy.19 According to Prue Vines, ‘the [English] Bill of Rights … did not establish parliamentary sovereignty in its fullest modern sense, but it trimmed the royal prerogative to some extent. In particular, the royal right of suspension of legislation was declared illegal.’20

As the Bill of Rights 1689 demonstrates, from Magna Carta onward greater restrictions were put in place to ensure that regardless of who has sovereignty — whether it is the monarch or the legislature — the law cannot be exercised arbitrarily.21 Parliament and parliamentarians are themselves bound by laws.22 This principle was imported into NSW, and forms a significant part of the Australian legal system.

A mechanism that limits the authority of parliament is the separation of powers: the concept that those who create laws (the legislature) should be distinct from those who administer them (the judiciary) and, to a lesser extent, government (the executive) should be separate from both again.

While presidential democracies place like the United States place greater emphasis on separation of the legislature from the executive than parliamentary democracies like Australia,23 it is a fundamental concept of the Western legal tradition that the judiciary is wholly independent of the legislature and executive. This concept is so significant that it is embedded into the Australian Constitution.24

Precedent, the court hierarchy and royal assent

Two characteristics of the legal system that were imported from England are the doctrine of precedent and the court hierarchy. The doctrine of precedent is an inherent trait of the common law system: the ability and requirement of courts to rule based on previous interpretation and application of the law is not found in civil law jurisdictions.25

The court hierarchy is related to this: courts are arranged so as to bind lower courts by decisions of higher courts. A horizontal persuasive precedent supplements this vertical binding precedent — because much of Australian law is not strictly codified, the outcomes of cases in other common law jurisdictions (including other states, but also other countries) can have influence on the results of cases in Australian law.26

Until the Australia Act 1986 (Cth), the highest court to hear appeals in Australia was the Privy Council, which convened in England.27 The Act cut this tie, making the High Court of Australia the ultimate judicial authority within the state and federal court systems.28

It may seem odd that an English legal institution would have such authority over Australian matters more than eighty years after independence, however the Privy Council is not the only relic of British imperialism that remained. Even today Acts of Parliament must receive royal assent from the Governor-General, representing the Queen in Australia, in order to become law.

Shared history

Australian law has, since the first colonists arrived in NSW, been emerging as a separate — but by no means isolated — branch of the Western legal tradition. By cutting legal ties with the United Kingdom during the 20th century, Australia obtained political and judicial independence. But while the future of the Australian legal system may develop independently, its fundamental concepts and institutes are derived wholesale from Western traditions. Most of the underlying concepts have been adopted directly from the English legal system that was brought by the colonists.

While Sir William Blackstone wrote ‘colonists carry with them only so much of the English law as applicable to the condition of an infant colony,’29 it is clear that in Australia’s case this meant that initially almost the totality of English law was immediately in force. With the establishment of separate colonial legislatures during the 19th Century, the Australian colonies were able to develop their own laws. Nevertheless, ultimately the Australian legal systems today share the same history as that of England up until 1788, and until 1986 was bound by precedents set by the Privy Council.

Concluding remarks

The Western legal tradition permeates and underpins the entire Australian legal system. It is only really since the Australia Act 1986 that Australian law has been discrete from English law, and there is a continued reliance upon the precedents set by English cases.

Regardless of the intricacies that Australian law may have that are not present elsewhere (such as Native Title), it remains clear that Australian law continues to uphold and embrace the institutions that are inextricably ingrained into the Western (and especially English) legal tradition — most fundamentally the rule of law, parliamentary democracy, parliamentary sovereignty, the doctrine of precedent and a hierarchical court system.

  1. Prue Vines, Law and Justice in Australia: Foundations of the Legal System (Oxford University Press, 2nd ed, 2009) 21–22.

  2. Ibid 35.

  3. Ibid 6.

  4. P Grimshaw et al, Creating a Nation (McPhee Gribble, 1994) 9–8; ibid 119–123.

  5. Vines, above n 1, 118–121, 123.

  6. Ibid.

  7. Ibid.

  8. Sir William Blackstone, Commentaries on the Laws of England, Vol 1, 104–105.

  9. Vines, above n 1, 47; Prisoners A–XX (inclusive) v NSW (1995) 38 NSWLR 622.

  10. Vines, above n1, 87–88.

  11. Ibid 105–107; Bill of Rights 1689, 1 Wm & M, sess 2, c 2.

  12. Vines, above n1, 185–187.

  13. Ibid 216.

  14. Ibid 215.

  15. Ibid.

  16. See eg Cable v Sinclair [1788] NSWKR 7.

  17. Vines, above n1, 118; Cooper v Stuart (1888) 14 App Cas 286.

  18. Vines, above n1, 3.

  19. Ibid 47.

  20. Ibid 107.

  21. Ibid 111-112.

  22. Ibid 3, 111–112.

  23. Ibid 216.

  24. Australian Constitution ch 3.

  25. Vines, above n1, 22.

  26. See eg Zanker v Vartzokas (1988) 34 A Crim R 11 [11]; Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 [37]–[45].

  27. Vines, above n1, 200–205.

  28. Australia Act 1986 (Cth) s 11.

  29. Blackstone, above n 8, 107 quoted in Cooper v Stuart (1889) 14 App Cas 286.