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The Australian Legal System and the Common Law ‘ Downunder ’

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The Australian Legal System and the Common Law ‘ Downunder ’. Yesterday:. Introduction Common law vs Civil Law Common law vs Statute Common law vs Equity Norman Invasion of England Itinerant justices (of Eyre and of Assize) Curia Regis: the origin of Westminster courts

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Common law vs Civil Law

Common law vs Statute

Common law vs Equity

Norman Invasion of England

Itinerant justices (of Eyre and of Assize)

Curia Regis: the origin of Westminster courts

Writ System and sclerosis of the common law

Development of Modern Parliamentary Democracy


Development of Modern Parliamentary Democracy and the rise of the statute


Doctrine of Precedent

Australian Legal System:

European Discovery

Colonisation and Development



An Australian Republic?


Magna Carta 1215

  • 1265 Simon De Montfort’s Parliament
  • 1295 Model Parliament King Edward I
  • Henry VIII
  • James I 1603 -1625 (James VI of Scotland)
  • Charles I 1625 - 1649
  • The Commonwealth Period under Lord Protector Oliver Cromwell
  • Charles II 29 May 1660 - 1685
  • James II 61685-88
  • Glorious Revolution of 1688
  • William and Mary
    • Bill of Rights 1689
    • Act of Settlement 1701
  • Rule of Law
  • Separation of Powers
The role

of the




The jurisdiction of The Court of Chancery

Lord Chancellor: King’s principal legal officer and “the keeper of the King’s conscience.”

English not Latin or Norman French

No jury

Focus on merits of the claims regardless of the technicality of forms/writs

Its earlier decisions were binding upon itself.


“The Office of the Chancellor is to correct Men’s consciences for Frauds, Breach of Trusts, Wrongs and oppressions, of what ever Nature soever they be, and to soften and mollify the Extremity of the Law … [W]hen a judgment is obtained by Oppression, Wrong and a hard Conscience, the Chancellor will frustrate it and set it aside, not for any error or Defect in the Judgment, but for the hard Conscience of the Party.”

The Earl of Oxford’s Case (1615) 21 ER 485

the tr ust a n important feature of law and commercial lif e f or example
The trust: an important feature of law and commercial life,for example:

Banking & Finance (securities clearing systems, unit trusts, custodianship of investments, bond issues)

Commercial (business trusts, nominee shareholders)

Wills & Estates (testamentary trusts)

Charities (charitable purpose trusts)

Family (family trusts, equitable interest of man and woman in family home)

Tax “minimisation” strategies

Superannuation & pensions

what is a trust
What is a trust?

A device by which one person (trustee) holds property (trust property) for the benefit of another person (beneficiary) or for certain lawful purposes.

judicature acts of 1873 and 1875 uk
Judicature Acts of 1873 and 1875 (UK)

Abolished both the Court of Chancery and the common law courts

Created one court – the High Court of Judicature with five divisions:

Queen’s Bench, Exchequer, Common Pleas, Chancery & Probate, Divorce & Admiralty








  • stare decisis et non quietamovere
  • (stand by the thing decided and do not disturb the calm)
  • Telstra Corporation v Treloar (2000) 102 FCR 595, 602 (Branson and Finkelstein JJ)

‘Our common law system consists in the applying to new combinations and circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of obtaining uniformity, consistency and certainty we must apply those rules where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised.’

  • Mirehouse v Rennell
    • (1833 1 Cl and F 527; 6 ER 1015 at 546 per Parke B)
doctrine of precedent in summary
Doctrine of Precedent: in summary

Each court is bound by decisions of courts in its hierarchy

A decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive, it will not be binding

Generally a court will not consider itself bound by its own past decisions but will depart from them only reluctantly

Only the ratio decidendi of a past decision is binding

Obiter dicta are not binding but may be persuasive

Precedents do not lose their force by lapse of time

judicial reasoning or how courts can avoid a precedent

Distinguish it on the facts

Eg Thornton v Shoe Lane Parking [1971] 2 QB 163

Statement of law is too wide

 eg Attorney-General for New South Wales v Mundey [1972] 2 NSWLR887

Ex parte Attorney-General; Re Truth and Sportsman Ltd [1961] SR(NSW) 484

‘any statements or comment dealing with the case and propounding views as to its proper determination are calculated to obstruct, or tend to obstruct, the administration of justice and to make the task of the court entertaining the appeal both difficult and embarrassing.”

Statement of law is obiter dictum

Changed social conditions

R v L (1991) 174 CLR 379

R v. R. [1992] 1 AC 599, 612-623

Precedent Unsatisfactory

Precedent is wrongly decided

But what about when there is no precedent?



SYSTEM: the common law ‘downunder’


1606: Willem Janszon (Dutch)

1622: British East India Company ship The Tryall wrecks on the west coast

1642: Abel Tasman (Dutch) sighted Tasmania on the way to discovering New Zealand, Fiji and visiting New Guinea

1688: William Dampier (English), landed on the west coast

19 April 1770: Captain James Cook in The Endeavour sighted the east coast of Australia and ten days later landed in a bay now located in Sydney's south

22 August 1770: Cook took possession of most of the East coast for the British – with an undefined western boundary.

26 January 1788: First Fleet arrived in Sydney

Other colonies established thereafter


Australian colonies established largely as a place to deposit convicts whose death penalties had been commuted to transportation

  • 160,000 convicts were transported to the Australian colonies
  • until:
    • 1852 New South Wales
    • 1852 Tasmania
    • 1868 Western Australia

‘[Aboriginal Australians] may truly be said to be in the pure state of nature, and may appear to some to be the most wretched upon the earth; but in reality they are far happier than ... we Europeans.’

Captain James Cook

23 August 1770



‘It has been held that if an uninhabited country be discovered and planted by English subjects all the English laws then in being, which are the birthright of every English subject, are immediately there in force.

But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their new situation as the condition of an infant colony…’



New South Wales Act 1823 (Imp)  

  • Australian Courts Act 1828 (Imp) (s24)
  • all common law and statute law of Britain was imported into New South Wales (and Queensland and Victoria) on 25 July 1828.
  • South Australia: 28 December 1836
  • Western Australia: 1 June 1829
  • Australian Constitutions Act (No 1) 1842
  • – introduced a number of reforms that created for the first time three separate branches of government
  • Australian Constitutions Act (No2) 1850
  • - Allowed colonies to form their own constitutions and parliaments

For example in South Australia:

  • Became a self-governing colony in 1856
  • A bicameral parliament was elected on 9 March 1857
  • Constitution provided for:
  • Adult male suffrage (including indigenous men) (no property requirement);
  • Secret ballot voting; one man, one vote;
  • No property qualifications for Members of its House of Assembly and a relatively low property qualification for Members of its Legislative Council
  • In 1894 women in South Australia :
  • were given the right to vote; and
  • and were the first women in the world to be able to stand for parliament.


  • World War 1 and Treaty of Versailles
  • Consitutional Crisis in Canada and the Balfour Declaration of 1926
  • World War 2
  • Statute of Westminster (Imp) 1931
  • Statute of Westminster Adoption Act (Cth) 1942


The Australia Acts enacted by both the Australian and in the United Kingdom Parliament in 1986


Queen visits Australia in 1963:

  • Looking back on the 1999 Republic Referendum:
  • Queen visits Australia in 2011:


Australian Republic?