The Western Legal Tradition in Australia

This short essay was submitted for Introduction to Law at Western Sydney University in early 2013. It was the first graded essay I and my colleagues submitted. We were not required to research beyond the assigned textbook, hence it relies almost entirely on a single source — Prue Vines, Law and Justice in Australia: Foundations of the Legal System (Oxford University Press, 2^nd ed, 2009) — with some references to cases and materials in that book. It was worth 35% of the unit grade with a limit of 1500 words. I was among about five students who received full marks, but the average across the cohort was a fail (less than 50%).

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Question

To what extent did the concepts and institutions of the Western legal tradition influence the colony of New South Wales and, ultimately, the development of the Australian legal system?

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Introduction

The Western legal tradition essentially consists of two contrasting systems of law: the civil law system of codified laws, which became predominant in continental Europe,¹ and the common law system, developed in England, which relies primarily on precedent set through judicial decisions (case law).² European colonisation exported these systems across the world. The expansion of the British Empire resulted in wide colonial adoption of the common law system, including in the territories that would eventually become Australia.³ This essay discusses the influence of the Western legal tradition, especially English common law, on the Colony of New South Wales and the Australian legal system.

International Law and Common Law

From the outset, European understandings of law guided the development of New South Wales, the first Australian colony. European traditions of ownership and law fundamentally conflicted with the myriad indigenous cultures of the vast continent.⁴ International legal principles concerning acquisition of territory were applied with imperialist perspectives and limited regard for the indigenous population, as these principles had been developed from European worldviews.⁵ This resulted in an upheaval of indigenous customary laws as the colonies expanded, replacing traditional forms of governance and law with British-style institutions and English common law.

New South Wales, which in 1788 included the entire eastern seaboard of Australia, was considered to have been acquired by settlement rather than conquest or cession.⁶ Unlike India and New Zealand, the absence of permanent indigenous settlements and organised resistance to colonial expansion meant that New South Wales was considered unoccupied — terra nullius — and the law of the settlers could therefore be imported in accordance with ‘international’ norms.⁷ It was deemed unnecessary to acknowledge existing customary law: ‘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 government across Europe and its colonies between about 1650 and 1800 had significant implications for the development of New South Wales. Just as settlers brought English law, they also brought English governance.

Although Magna Carta (which is still at least partially in effect in New South Wales⁹) placed some limits on the powers of the English monarchy in 1215,¹⁰ it was not until the reigns of the Stuarts (1603–1714) that serious political reform was required in England. 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, the debate over whether the monarchy, legislature or courts possessed sovereignty became a key feature of the dynasty.¹¹ Struggles between the English Parliament and the Crown resulted in the execution of James’ son and successor, Charles I, in 1649 and, beginning in 1689, England’s establishment as a parliamentary democracy with a constitutional monarchy.¹²

From this historical basis, the Colony of New South Wales operated much the same, with a bicameral parliament and constitutional monarchy, which was adopted at the Commonwealth (federal) level when the Australian colonies federated in 1901.¹³ The division of the Australian federal legislature resembles a hybrid of the British and American systems. Following the Westminster system of responsible government developed in England, the executive government is formed by the majority in the lower chamber of Parliament rather than being entirely separate from the legislature.¹⁴ However, the two chambers of Parliament share their names with those of the United States Congress, with the senates of both being equally apportioned to the federated states regardless of population.¹⁵

Rule of Law and Separation of Powers

The colonists to New South Wales adjusted the legal system they brought with them,¹⁶ which was to be expected: ‘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 of Australian law were the rule of law and separation of powers.

The rule of law is the notion that the law binds all persons and entities.¹⁸ In 1215, Magna Carta marked the beginning of clear legal limits on the powers of the English monarchy.¹⁹ According to Vines, the 1689 ‘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 The Bill of Rights 1689, 1 Wm & M, c 2 demonstrates that after Magna Carta, restrictions were increasingly placed on the Crown to ensure that regardless of who possesses sovereignty, the law cannot be exercised arbitrarily.²¹ Parliament and parliamentarians are themselves bound by laws.²² This principle was imported into New South Wales and is a cornerstone of the Australian legal system.

Another concept that limits parliamentary authority is separation of powers: the principle that those who create laws (the legislature) should be discrete from those who administer them (the judiciary) and, to a lesser extent, those who implement them (the executive). While presidential democracies like the United States place greater emphasis on separating the legislature and executive than parliamentary democracies like Australia,²³ it is a fundamental principle of the Western legal tradition that the judiciary is independent of other branches of government. This is embedded in Chapter 3 of Australian Constitution.

Precedent, Court Hierarchy, Privy Council and Royal Assent

Two characteristics of the legal system that were imported from England are the doctrine of precedent and the court hierarchy. The former is inherent to the common law system: the ability, or requirement, of courts to rule based on previous interpretation and application is not as strong in other legal traditions.²⁴ The court hierarchy is related to this. Courts are arranged such that decisions of higher courts bind lower courts.²⁵ A persuasive ‘horizontal’ precedent supplements this binding ‘vertical’ precedent — because much of Australian law is not codified, the outcomes of cases in other common law jurisdictions can influence judicial decisions in Australia.²⁶

Until the Australia Act 1986 (Cth) and its British counterpart, the Australia Act 1986 (UK) c 2, the highest judicial authority to hear appeals in Australia was the Privy Council, which convenes in England,²⁷ reflecting Australia’s status as a dominion of the British Empire and later British Commonwealth. The Australia Acts cut this tie, making the High Court the ultimate judicial authority in the Commonwealth of Australia.²⁸ However, Australia retained one colonial institution, the monarchy, and, even today, Acts of Parliament must receive royal assent from the the monarch’s representative, the Governor-General, to become law.

Shared History

Australian law has, since the first colonists arrived in New South Wales, developed as a separate — but not isolated — branch of the Western legal tradition. By cutting ties with the United Kingdom in the late-20th century, Australia attained political and judicial independence. Yet while the Australian legal system will continue to develop independently, its fundamental concepts and institutions originate in Western European traditions, with most of the underlying principles of the English legal system being imported by colonists.

While Blackstone wrote that ‘colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony,’²⁹ it is clear that in Australia’s case this meant that almost the totality of English law was initially in force. Over time, colonial courts and legislatures developed a distinct Australian legal system but, ultimately, it shares the same history as that of England until 1788 and retained close ties until 1986.

Conclusion

The concepts and institutions of the Western legal tradition were the bedrock of law in the Colony of New South Wales. It is this tradition that permeates and underpins the entire Australian legal system. It has only been since 1986 that Australian law has been discrete from English law, and there is a continued reliance on precedent from England and other common law jurisdictions, making the Australian legal system a relatively branch of the Western legal tradition. Regardless of any peculiarities Australian law may have, it remains clear that the Australian legal system continues to embrace and uphold the institutions that are ingrained in the Western, and especially English, legal tradition — most fundamentally the rule of law, bicameral parliamentary democracy, parliamentary sovereignty, the doctrine of precedent, and a hierarchical court system.

Endnotes

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