USQ Law Society Law Review
Bonifacio Jr Badri Arribas
Winter 2021
The early colonial settlers may have been selective in the laws they brought to Australia, because Blackstone continued in his Commentaries that ‘in…conquered or ceded countries, that have already laws of their own, the king may indeed alter the change of those laws; but, till he does actually change them, the ancient laws of the country remain.’5 The British did not apply Blackstone’s second maxim mentioned because through their understanding of international law, Indigenous Australians did not truly inhabit the land since they did not settle, cultivate, and hold permanence to it. Rather, they roamed the land as a ‘primitive people whose laws and customs were considered inapplicable to a civilised race.’6 Having established that British law was the accepted law in Australia, the next step was to have British enacted laws suitable to the Australian environment that was not the same as England’s. To qualify such laws, England gave Australia the right to try cases within its jurisdiction. England, however, still had the final say through the privy council and that such laws used in Australia were not repugnant to ultimate British authority. The Australian Courts Act 1828, s 24, for example, makes it ‘clear that all English law…[is] in force insofar as it was applicable to the new colony’ that included the strengthening of NSW and Van Diemen’s Land legislative and judicial institutions.7 To illustrate, in NSW these were strengthened institutions in addition to the already enacted New South Wales Act 1823 (Imp) which ‘established a new Supreme Court with equity and full civil, ecclesiastical and admiralty jurisdiction.’8 It also ‘gave the colony some elements of representative self-government.’9 How did this recently developed ability of Australia to have some jurisdiction in cases affect Indigenous Australians customary law and their eventual dispossession? Settler sovereignty occurred when colonisers of “Australasia redefined indigenous theft and violence as a crime…[because] they pitted [it] against the rights of the indigenous people.”10 Australia started out as a penal colony. Criminal law, therefore, was the first type of British law brought to Australia. The practice of criminal law during the19th century, from its judgements to its punishments, was more for deterrence than redemption for those found guilty of crimes. Often, these crimes were minimal such as stealing. The punishments would range from lashings to hanging.11 These practices were initially held for accused British subjects, not Indigenous Australians. If such was the treatment for British subject convicts, how would have Indigenous Australians been treated who were considered not as British subjects, but as “savages”? A comparison of trials during the 1820’s – 1830’s will show that on criminal cases held for British accused, steps were taken by the Australian courts to depart from traditional
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Ibid 105. Alex C. Castles, ‘The Reception and Status of English Law in Australia’ (1963) 2(1) Adelaide Law Review 2, quoting Case 15.-Anonymous, op. cit. Blackstone’s Commentaries. 7 Prue Vines, Law and Justice in Australia: Foundations of the Legal System (Oxford University Press, 3rd ed, 2013) 179 and see also ‘Museum of Australian Democracy’, Australian Courts Act 1828 (UK) (2020) <https://www.foundingdocs.gov.au/item-did-39.html>. 8 Ibid 173. 9 Ibid 177. 10 Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788-1836 (Harvard University Press, 2010) 2. 11 See generally Vines (n7) 161. 6
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