If the Crown of Great Britain had received a new land through cession or if it had conquered it, we know, and there's little doubt about this, that the new colony would have its own pre-existing laws. In those cases, the British Crown would have to alter the law, but until those changes had taken effect, the law of the land would still remain in force. But that did not happen when the colony was previously empty. If you had declared the land as terra nullius then everyone would understand that there was no previous law in that land.
In our last video, the one that is appearing in the card above, we saw that if you settled, if you occupied the land, then that land, the new colony, was deemed to have no prior laws. The principle of terra nullius guaranteed that the English laws would be applicable to the new land if that land was previously declared as terra nullius. So in January 1788 with the first settlers and the first prisoners you know what else disembarked on the shores of Botany Bay in Sydney?
Exactly the laws of England. Hello everyone my name is Renato Costa this is Aussie Law and today we will look at how the Australian legal system worked during the colonial era. With 850 convicts, with the marine guards and the officers, also came the laws of England to be implemented in Australia.
But the colony was not prepared nor did it have any structure to support the already well-developed British legal system. So how could the laws of England be implemented here? I can actually hear your answer from here. You're saying where there's will there's a way. Well that's true but in this case there was really no will at all.
Do you really think that there was an interest from the British crown to protect the freedoms of prisoners and military men who had deserted in battle? Nah. Not really.
So that's why the colony was established, in practice, as a sort of autocratic dictatorship. There was one representative of the crown, he was the governor, and he was vested with many royal commissions, which basically gave him plenary powers to rule over Australia. There is even the record of Governor William Bly once saying, Them the law, my will is the law.
Not quite a democratic Australia that we're used to, right? Now, let's fast forward some years. Some convicts became free, new settlers arrived, people started getting married, and Australian babies started being born.
And so, the population started to increase. And with that increasing, they also wanted representation. They wanted to be part of the government. They wanted a government that was for them. So the autocratic government was absolutely not what the people expected and wanted.
People wanted a true government. And that's when we started seeing voices being raised against this oppressive government, autocratic government in the colonies. People like Australian-born William Charles Wentworth started fighting for representativeness and for certain legal guarantees like trial by jury.
And because of these claims, Australia started to change while still being a colony. In 1823, for example, a legislature was established in New South Wales. This was a move towards more representation, but it was still not quite what people wanted.
Because, for example, that body that was created in New South Wales was still under the influence, the direct influence, of the governor. In 1828, the British Parliament enacted the Australian Courts Act and that expanded the representation of that body created in New South Wales, although that body didn't have any locally elected representatives until 1842. But again, this was one more step towards self-government in the colony. There is another very important thing in the Australian Courts Act of 1828. That act said that Every English law that was enacted before the 25th of July 1828 would remain valid.
But all the other laws that were enacted after that date, they would only be applied and implemented in the Australian colony by paramount force. That is, only if they were intended to be applied to the colony, only if they were designed to the colony. Paramount force means that the legislation was tailor-made.
for the colony and as such no other law could supplant it. Let me draw you a timeline. The laws that existed before the 25th of July 1828 were still valid, but all the other laws after that date would only be implemented in colonial Australia by paramount force, that is, if they were intended to be applied to the colony.
Two more Acts were enacted after 1828 and they expanded the legislature, they gave more representativeness to the people and they diminished the powers of the governor. So by the beginning of the 1850s Australia had new colonies being formed and constitutional documents being enacted for them. New South Wales enacted its constitution in 1855. Tasmania, South Australia and Victoria in the following year in 1856. Queensland separated from New South Wales in 1859 and enacted its constitution in 1867 and Western Australia only enacted its constitution in 1889. But still back in the 1850s, we saw the Chartist movement explode with the Eureka Stockade in Victoria.
It was also during that period that Henry Parkes John Dunmore Lang, James Robert Wilshire formed the Australian League, which intended to be a union of the colonies into one Federation. Despite these advancements, the Australian legal system was still a mess. Look at what the authors of this book have said.
To be subjected to the law of the colony during the 19th century was to be subjected to a movable feast. An uncertain combination of UK and local statutes and principles of common law. Imagine the mess of not knowing what laws are applicable or not. Not knowing if the valid law was a law enacted by the local legislature or by the British Parliament. So further steps needed to be taken.
And one of these steps was the enactment of the Colonial Laws Validity Act of 1865. But... To know more about that act, you're going to have to subscribe to our channel and hit that bell sign over there. Because that's the only way you're not going to miss our next video, where I'll explain everything about the Colonial Laws Validity Act of 1865. For now, I hope I have painted a picture of how colonial Australia looked like and its legal system looked like. I hope you enjoyed this video and I hope you've learned something else, something new.
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