1 but in England the common law legal has remained under constant development for at least a millennium and has traditionally relied upon case law precedent.2 British colonisation of Australia began in 1788, and by this time the expansion of the British Empire meant that there was wide adoption of the common law system across the world.3

  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. 

"/> Mozart Olbrycht-Palmer | Origins of the Australian Legal System

Origins of the Australian Legal System

Western legal systems are traditionally divided into civil and common law jurisdictions. The civil law system of codified laws became predominant in continental Europe and its colonies,1 but in England the common law legal has remained under constant development for at least a millennium and has traditionally relied upon case law precedent.2 British colonisation of Australia began in 1788, and by this time the expansion of the British Empire meant that there was wide 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 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 approach to law guided the development of the Australian colonies. Although it is now widely accepted that the indigenous communities had developed complex systems of law, European legal traditions fundamentally conflicted with the myriad of cultures of the vast Australian continent.4 Principles of European-based international law regarding the acquisition of territory were applied with imperial goals in mind and a limited understanding of indigenous cultures.5 This led to an upheaval of indigenous customary laws as the colonies expanded, replacing existing systems of law and governance with the common law and colonial parliaments.

The acquisition of NSW (which in 1788 covered the entire eastern seaboard) was considered by European powers 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 was considered unoccupied — terra nullius — and therefore the law of the settlers was imported in accordance with norms of international law.7 No acknowledgment 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, Constitutional Monarchy and Separation of Powers

The shift towards representative democracy across Europe and its colonies between about 1650 and 1800 had enormous implications for the development of NSW. Just as the settlers brought English law, they also brought English governance. Although Magna Carta (which is still in effect to a limited extent in Australia) somewhat restrained the powers of the English monarchy,9 it was not until the ill-fated reign of Charles I over 400 years later than serious political reform took place.

When Charles I’s father, James VI of Scotland, inherited the throne of England the debate over whether the monarchy, the Parliament or the courts had sovereignty became an important issue of the 17th century.10 James and his English Attorney-General Sir Francis Bacon were ardent proponents of absolute monarchism, a belief that largely defined the tension between the House of Stuart and the Parliament that would continue when Charles succeeded James in 1625. Conflicts between the Parliament and the Crown under culminated in a civil war and the execution of Charles in 1649, and marked the beginning of England’s transition to a modern constitutional democracy.11

The British Westminster system of a constitutional monarchy and bicameral parliament was imported into the colony of NSW, and was later blended with the American system to produce the ‘Washminster system’ used by Australia at the federal level since independence in 1901.12 The Australian Houses of Parliament share their names with those of the United States Congress, and the Senate consists of an equal number of Senators elected from each state.13 The executive government is formed by the majority party or coalition in the House of Representatives, rather than being entirely separate, following the Westminster system.14

The separation of powers doctrine divides the legislative, executive and judicial functions of government and assigns these to different bodies. This mechanism decentralises governmental power by keeping, to varying degrees, the law-making, law-enforcing and law-applying roles separate. While other jurisdictions place a greater emphasis on the separation of the legislature and executive than parliamentary democracies like Australia,15 at the federal level the Australian Constitution maintains a strict separation of judicial functions from the legislative and executive functions.16

The Rule of Law

It is evident that colonists arriving in NSW adjusted the legal system they brought with them to meet the needs of the colony,17 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’.18 Despite this, the rule of law remained at the core of the legal system.

The rule of law is the notion that the law binds all persons and entities: no one is above the law.19 In 1215 Magna Carta marked the beginning of legal limits being placed on the powers of the monarchy in England,20 which was taken further with in 1689 with the English Bill of Rights. 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.21

Developments in English law over the past 800 years have seen increased restrictions being put in place to ensure that regardless of who has sovereignty, the law cannot be exercised arbitrarily.22 The Crown, Parliament and parliamentarians are themselves bound by laws.23 This principle was also imported into NSW, and is the basis of the Australian legal system.

Precedent, the Court Hierarchy and Royal Assent

In common law legal systems like that of Australia, the doctrine of precedent requires courts to make decisions based on the previous interpretation and application of the law.24 The court hierarchy determines which courts can hear cases in the first instance, and which courts can hear appeals. Courts lower in the hierarchy are obliged to follow the rulings of courts that are higher up in the hierarchy. This binding ‘vertical precedent’ is supplemented by a persuasive ‘horizontal precedent’ — the outcomes of cases in other common law jurisdictions is often considered by Australian courts when it is unclear how or whether existing precedent should be applied.25

Until the Australia Act 1986 (Cth), the highest court of appeal in Australia was the Privy Council, which convened in England.26 The Act cut this tie, and the High Court of Australia became the apex court — the ultimate judicial authority — within the state and federal court systems.27 While it may seem odd that an English institution would have such authority over Australian matters more than 80 years after independence, but the Privy Council is not the only remnant of British imperialism. Even today Acts of Parliament must receive royal assent from the Governor-General, who represents the Queen in Australia, in order to become law.

Shared History

Since the first colonists arrived in NSW, Australian law began emerging as a separate, but by no means isolated, branch of the family of western legal systems. By cutting legal ties with the United Kingdom during the 20th century, Australia gained full political and judicial independence. However, while the Australian legal system continues to develop independently, its fundamental concepts and institutions are derived wholesale from Western traditions. Most of the underlying concepts have been adapted directly from the English legal system that was brought by the colonists.

Although Sir William Blackstone wrote that ‘colonists carry with them only so much of the English law as applicable to the condition of an infant colony,’28 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 courts and colonial legislatures, 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 Australian courts were bound by the precedents of the Privy Council.

Conclusion

The western legal tradition underpins the entire Australian legal system. It has really only been since the Australia Act 1986 (Cth) that Australian law has been wholly independent from English law, and there is a continued non-binding reliance upon the precedents set by English cases. Regardless of the intricacies that Australian law may have that are not present elsewhere, 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 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 3. 

  12. Vines, above n 1, 185–187. 

  13. Ibid 215. 

  14. Ibid. 

  15. Ibid 216. 

  16. Australian Constitution ch 3. 

  17. See, eg, Cable v Sinclair [1788] NSWKR 7. 

  18. Vines, above n 1, 118; Cooper v Stuart (1888) 14 App Cas 286. 

  19. Vines, above n 1, 3. 

  20. Ibid 47. 

  21. Ibid 107. 

  22. Ibid 111–112. 

  23. Ibid 3, 111–112. 

  24. Vines, above n 1, 22. 

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

  26. Vines, above n 1, 200–205. 

  27. Australia Act 1986 (Cth) s 11. 

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