Where does Australian law come from? This essay looks at how Australian law originated. The past and the present is explored which provides an insight into the hierarchy of laws within Australia specifically the Commonwealth law, the individual State laws and common law. The last part of the essay explains the differences between two common classification of laws; civil and criminal law.
The law in use in Australia is mostly based on the law of England. Australia was settled by the British in 1788. Prior to that Aborigines inhabited Australia and had their own system of customary laws. The Aboriginal system of laws were disregarded by settlers and as stated by Turner (2005, p. 24) 'the new territory was regarded for practical purposes as being unoccupied (that is, terra nullius), without its own settled inhabitants or settled law'. Instead, the law of England was put in its place.
Therefore, the settlers did not recognise any Aboriginal rights and customs. It was not till recently that the common law recognised that there was a form of native title: Mabo v Queensland (No 2) (1992) 175 CLR 1. In brief, the decision made was that indigenous people have rights to land under the Australian law, rights that existed before colonisation till present. The Native Title Act 1993 was the outcome of this decision. This did not, however, change Australia's classification as a settled colony instead of a conquered one.
As outlined by Turner (2005, p.25), the colony had originally been a penal colony under the rule of successive Governors. In 1823, with the increase in the number of free settlers, the British Parliament made provision for the beginning of formal English law in the colony. In 1828, the Australian Courts Act was passed by the British parliament. This made...