Origins of Australian Law & Legal Systems: Part 1 British History

The 18th century in Britain signified the end of the agrarian economy. With new land reforms of the Agricultural Revolution, agriculture productivity had rose due to new crop rotations. While, it had also declined the agriculture share of the labour force, having driven small farmers off the land, seeking work in newly established factory towns. This provided many additional numbers to the urban workforce on which the Industrial Revolution depended.

Living conditions were depressed and crime grew. Both Parliament and the Judiciary thought tougher laws would create necessary fear. Parliaments first response was the Waltham Black Act 1723 (Imp), which created 50 capital offences with charges punishable by the death penalty. At the end of the 18th century, Parliament had made some 220 different crimes, known as the Bloody Code capital offences.

Death sentences were often commuted to transportation, between 1718-1775 those were sent to American or West Indian colonies. “But the American War of Independence (1775-83) put an end to this practice and transportation to these colonies was suspended.” (Gibson & Fraser, 2012, p.21) Parliament then passed the Hulks Act 1776 in order to house transportees on empty hulks on the Thames, yet quickly filled, therefore many were sent to the army, navy or told to transport themselves.

People questioned whether non-violent property crimes should be punishable. Parliament therefore adopted Captain James Cook’s recommendation that New South Wales was suitable for settlement, as a convict colony. “In 1770, Cook had charted the east coast of Australia and, under instruction from King George III, he claimed the land for England on 22 August 1770 at Possession Island, naming it ‘New South Wales’. (Gibson & Fraser, 2012, p.21)

Cook had reported that NSW was occupied by a small number of nomadic people who did not cultivate the land or appear to have any recognised society. It was deemed terra nullius, meaning a territory belonging to no one. Colonies established by England were classified as either terra nullius or acquired by treaty or military victory in which law of the current inhabitants would be replaced by laws of the colonising power. While, terra nullius colonies meant they could take law with them known as the doctrine of reception.

This rule was modified by the Privy Council in Cooper v Stuart (1889) 14 App Cas 286, the Privy Council had to consider cases of the validity of land grants, the result was British law was applied. Until 1968, the Privy Council was the highest appeal court in the Australian court hierarchy (based in London). It was against this background of overflowing jails that the First Fleet sailed from England in 1786. Landing in Botany Bay on 18 January 1788 with over 750 convicts. While, Captain Arthur Philip suggested Port Jackson would be more suitable for inhabiting, therefore they move on 26 January (Australia Day).  

Reference list

Gibson, A. & Fraser, D. (2012). Business law. (6th ed.). New South Wales, Australia: Pearson Australia.




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