The Law On The Development Of Nsw And Essay Example

of law. Consequently, during that period, Australian courts had little autonomy from Britain.

The establishment of these courts significantly impacted the colony of New South Wales and the advancement of Australian law. Crucial legal judgments, like that in Kable v Captain Sinclair (1788), were pivotal to the growth of Australia's legal framework, setting the foundation for implementing British law through legislation. In addition, within its court structure, Australia evolved its distinct principle known as doctrine of precedence. The Australian Courts Act was enacted by the British Parliament in 1828 (as referred to in Vines p. 74), proclaiming that all relevant common laws and statutes effective in England on July 28, 1828 would also apply to their colony - a concept called Doctrine of Reception. These laws included general inheritance regulations and protection against personal harm (see Blackstone Vines p. 1760). By 1842, Western legislative systems were assimilated into this colony via the Australian Constitutions Act which established a legislative council primarily made up of elected members - elections accounted for two-thirds (24 out of 36) seats on this council. Subsequently, under the New South Wales Government Act issued in 1855, this entity gained power to enact laws effectively for handling colonial matters.

By 1860, all Australian colonies, except Western Australia, had adopted a governance system akin to Britain's (Vines p. 185). The Colonial Laws Validity Act (Imp) (1865) gave the NSW parliament the power to change British legislative and common laws that were not suitable for the colony, thus endorsing the colonial legislatures' capacity to revise their own constitutions. However, it also established that colonial parliaments could not enact laws that contradicted English

laws directly pertinent to the particular colony. This judgement was affirmed by the Privy Council in Cooper v Stuart in 1889.

This case centered around the rule against perpetuities, which is deemed a crucial aspect of English common law. Their Lordships opined that the same considerations that prompted its implementation in England would necessitate its adoption in New South Wales, as its effect in the colony would be equally advantageous (Vines p.176-77). This notion that only English laws were applicable in Australia played a significant role in shaping Australian law by establishing a clear distinction between English and Australian legal systems. It is evident that Britain did not expect colonial parliaments to unquestioningly follow all imperial legislation (Vines p.186). A notable instance of this divergence is South Australia's enactment of suffrage laws granting women the right to vote twenty years ahead of Britain. Additionally, the case of Kable v Captain Sinclair (1788) showcases the limited influence of English law on Australian legal development. In this case, convicted criminals in Australia retained their civil rights, whereas those sentenced to death in England forfeited them. Furthermore, the plaintiffs in this case successfully sued a captain, underscoring the significance of this ruling.The start of one of Australia's core principles - a 'fair go', the rule of law, equality, and justice - is symbolized by this event. In 1900, the British government enacted the Australians Constitutions Act (1900), leading to the unification of the colonies and the formation of the constitutional monarchy known as the Commonwealth of Australia in 1901 (power point).

When the Australian Constitution was enacted, it was significantly influenced by the principles and

structures of the Western legal tradition that were concurrently shaping New South Wales and the broader Australian legal system. The Australian Constitution drew inspiration from Britain's Bill of Rights, adhering to the Westminster system which incorporated fundamental British legal concepts such as a constitutional monarchy, power separation, responsible governance, and rule of law (Vines p. 15). Consequently, Britain's Bill of Rights played an integral role in shaping Australia's legal framework as it introduced key principles that still govern Australia's law today. However, following the enactment of the Statute of Westminster Adoption Act 1942, Australia obtained significant legal autonomy. This shifted focus towards interpreting its own new Constitution rather than seeking validation for laws from Britain (Vines p. 215).

Despite the Australian constitution not extensively addressing many civil rights, it still plays a crucial role today by offering guidance to the country's legal leaders in upholding the law. The influence of Britain's Bill of Rights, particularly the Westminster system, heavily impacted the development of Australia's legal system. However, the implementation of the Australian constitution also diminished the level of influence from the Western legal tradition on Australian law, as "the constitution became the central reference point for determining the law" (Vines p. 15). The detachment of Australian courts from British dependency commenced with the passage of the Statute of Westminster Act 1931 (Imp) (Vines p. 200). This act enabled dominion parliaments to fully assume legislative competency and prohibited the British Parliament from passing laws regarding Australia unless specifically requested. The Statute of Westminster Adoption Act 1942 (Cth) further confirmed that the Colonial Laws Validity Act 1865 (Imp) no longer applied to the Commonwealth of Australia.

In

1986, the British Parliament passed the Australia Act 1986 (Imp), which repealed the power to pass laws relating to Australia. This was a significant moment in the development of Australian law, as it granted autonomy from England and allowed Australian law to thrive. The Privy Council in London served as Australia's final court of appeal until certain important cases, like Viro v R (1978), led to the passing of the Australian Act 1986. This act terminated all appeals to the Privy Council, except for s 74 certificate matters. The Privy Council had both a significant influence and limitation on the Australian legal system. While it existed, it exposed the Australian judiciary, including the High Court, to a powerful source of international influence. However, it was considered an unsatisfactory body for interpreting the Australian Constitution (source: http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_18jun08.pdf).

In conclusion, the Western legal tradition, which includes common and statute law, the court system, and the Bill of Rights, significantly influenced the colony of New South Wales and the development of the Australian legal system during Australia's 143 years after British settlement. However, while the concepts and institutions of the Western legal tradition still have an impact on New South Wales and the Australian legal system, this influence has diminished over time, with the passing of the Statute of Westminster Adoption Act 1942 as a notable turning point.

The ideas and establishments of the Western legal tradition have profoundly impacted Australian law. Sir Garfield Barwick, the previous Chief Justice of the High Court, asserted that the court does not feel compelled to adhere to rulings made by the House of Lords.