This has been transcribed by Mikiverse Law from a book entitled "The Constitution of The Commonwealth of Australia by W. Harrison Moore. It was first published in 1902, but this transcription is from the Second Edition, published in 1910.
Moore is described in his book as being "of King's College Cambridge, and of the Middle Temple, Barrister-At-Law; Dean of the faculty of Law in The University of Melbourne." My comments, as always are in red. Comments, queries etc are always welcomed in the thread below. Feel free to share this url.
The
Commonwealth of Australia is formed of the Colonies of New South Wales,
Victoria, Queensland, Tasmania, and Western Australia, and the Province of
South Australia. It appears therefore desirable to state briefly the time
and circumstances of their foundation, and the sources to which regard must be
had in the administration of their laws.
The
first thing which must strike an English lawyer who turns to the study of
Colonial institutions is the multiplicity and complexity of the sources of the
law and their striking contrast with the singleness of authority which
dominates the English system.
The
Common Law, the Prerogative, Acts of Parliament and Orders thereunder play
their part as in England. But the Prerogative looms larger in Colonial than in
Home institutions; Acts of Parliament have varying force and authority
according to their date and their nature; Orders in Council are less frequently
acts of supplementary legislation than the exercise of a statutory suspending
power or power put into operation. In addition to these are the Acts and
Ordinances of Colonial Legislature, sometimes of Legislatures between which the
power of legislation is divided, sometimes of Legislatures which have been
superseded by others, as Colonies have been divided or joined together, or
their progressive development has been marked by changes in their institutions.
All
the Australian Colonies belonged to the class of colonies acquired by
settlement or occupancy. The doubts once held as to the status of
New South Wales as a penal settlement (see Bentham, Works, vol. iv.) must now be regarded as set at rest by the decision of the Privy
Council in Cooper v. Stewart.[1] The sources of law common to
all these Colonies are the following:—
1. The laws of England at the time
of settlement (or some date fixed by Statute in lieu thereof) so far as they
are applicable to the conditions of the infant colony. “It hath been held that
if an uninhabited country be discovered and planted by English subjects, all
the English Laws then in being which are the birthright of every English
subject are immediately in force (Salkeld, 411, 666). But this must be
understood with very many and very great restrictions. Such colonists carry
with them only so much of the English Law as is applicable to their own
situation, and the condition as an infant colony.”[2]
The “laws of England” include
Statute Law as well as the rules of common law and equity; the law so imported
forms what is sometimes called the common law of the Colony. The applicability
of any law according to the principle laid down is one for judicial
determination as the occasion arises; it forms one of the most difficult tasks
of the colonial judiciary, and from its nature gives rise to many conflicts of
opinion. Even the principle itself appears not yet to be wholly settled. Does
the “infant colony” attract more of English Law as its needs develop (as is
suggested by Lord Watson in Cooper v.
Stewart)[3] or must a Court called on in
1909 to determine the applicability of any English law take its stand upon the
condition of the Colony at the time of its foundation, as laid down by High
Court of Australia in Quan Yick v. Hinds?[4] If the latter be the true
view, a Colony may be founded in conditions which make very little of English
Law applicable as of authority; and its legal development will then be
peculiary in the hands of its Judges who would theoretically have a large field
for the expression of that “private justice, moral fitness, and public
convenience”[5] which make common law.
Practically, however, whether by way of authority or doctrine, English Law is
applied as of course unless there be some striking cause of inapplicability or
unsuitability. If there be, any theoretical difficulty in avoiding the particular
rule of English Law is overcome by the consideration that it would certainly
not be more suitable or applicable at the foundation of the Colony than it is
to-day.
Another way of approaching this
subject is suggested by the dictum of Sir W. Grant, M.R., in Att.-Gen. v. Stewart. [6] “Whether the Statute (of
Mortmain) be in force in the island of Grenada will, as it seems to me, depend
upon this consideration—whether it be a law of local policy adopted solely to
the country in which it was made, or a general regulation of property equally
applicable to any country in which it is by the rules of English Law that
property is governed.” According to this view, attention is fixed, not on the
condition of the Colony, but on the English Law. That law consists in part of
institutions and rules which operate upon or in relation to facts and
conditions which are peculiar and local; in part, of laws and institutions
which are so far general as to be reasonably applicable wherever English Law is
the lex terræ. The whole of the
latter law becomes the law of a settlement Colony except so far as it may be
particularly excluded. In other words, the rule depends upon a distinction
analogous to one of the antitheses of jus
civile and jus gentium in Roman
Law. The principle has much to commend it: it substitutes a more definitely
legal test than “suitability,” one which gives the same result in the case of
all the settlement Colonies, and one which if adopted would give a real meaning
to the expression “British law.” It overcomes also the difficulty already
referred to as to the time to be regarded in determining suitability, and that
of subsequent attraction. It was adopted by the High Court of Australia in Delohery v. Permanent Trustees Co.,[7] but is not adverted to in Quan Yick v. Hinds.[8] It Is certainly not from this
point of view that the matter has commonly been dealt with by the Courts.
In any case, this class of laws—the
“common law” of the Colony in the sense above described—falls completely within
the power of the Colonial Legislature, which may declare what laws are in force
and may repeal any of them; and on the same principle no repeal of such laws by
the Parliament of the United Kingdom affects their operation in the Colony.[9]
2. ACTS OF THE IMPERIAL PARLIAMENT
MADE APPLICABLE—Acts of the Imperial Parliament made applicable to the Colony either in common with other dominions
of the Crown or specially, whether by express words, or necessary
intendment—these Acts are of paramount obligation. The expression made applicable to the Colony requires
some explanation. In the first place, it excludes those Acts of Parliament
which being part of the general law of England applicable to the circumstances
of the Colony are received at its settlement as part of the common law; and it
includes all Acts by which Parliament intends to bind the Colonies, whether
those Acts were passed before or after the settlement of the Colony.[10] In the second place, an Act
of the Imperial Parliament may relate to a Colony without being in force there,
just as it may relate to a foreign country; but the enforcement of the
regulation established by the Act may belong to the English Courts alone, and
be limited by the powers of those Courts to make their orders effective. The
Colonies, through their inhabitants and in other ways, receive by many Statutes
certain favourable treatment in England and in English Courts, either
absolutely or upon terms of reciprocity, e.g.,
by the Colonial Solicitors Act 1900,
the Colonial Probates Act 1892, and
the Finance Act 1894. These and the
like Acts are very commonly regarded as “applicable to” the Colony; they are in
fact “in operation in England in respect to” the Colony. The importance of this
distinction is obvious; but it was ignored by those who compared the financial
proposals of the Chancellor of the Exchequer in 1894 with the Stamp Act of 1765 and the Tea Duty of 1770. Again, the Wills Act 1861, sec. 1 and 2, affects
wills made in the Colonies and wills of persons domiciled in the Colonies, but
only for the purposes of admitting them to probate in England or Ireland, and
in Scotland to confirmation. The Bankruptcy
Acts and the Companies Act
illustrate the two different kinds of operation. The Bankruptcy Acts and the Companies
Act illustrate the two different kinds of operation. The Bankruptcy Acts vest in the trustee the
debtors’ property everywhere in such a way that the trustee’s title is
enforceable in all parts of the British Dominions; and a discharge in
bankruptcy in England is a discharge in a paramount jurisdiction, recognized
and enforced in all parts of the British Dominions.[11] On the other hand, in the
winding up of a company in England, while the English Court will treat its
orders as affecting all Colonial property of the debtor and as binding all his
Colonial creditors, the operation of these orders is limited by the power of
the English Court to give effect to them, and any recognition they may obtain
in the Colonies is due, not to any paramount jurisdiction, but to the “comity
of nations.”[12]
Statutes of this class, i.e., made applicable or extending to
the Colonies, may not in general be repealed or varied except by the Imperial
Parliament (Colonial Laws Validity Act 1865,
sec. 2). But the application of this rule is occasionally excluded by a
provision giving special power to the Colonial Legislature to make laws as if
the Act had not been passed, and to alter or vary it (e.g., Coinage Act 1853),
or to repeal the Act or some part of it (e.g.,
the Merchant Shipping Act 1894,
sec. 735). A special reason for such a provision is that the machinery for
carrying out an Act, even upon an Imperial matter, as extradition, may be more
conveniently devised by the Colonial Legislature.
3. STATUTORY ORDERS AND
REGULATIONS.—Orders or Regulations made by the Crown in pursuance of Acts of
the Imperial Parliament, to which they are equal in authority. These Orders—
(a)
Put an Act into operation in a Colony, the Act being in terms postponed in the
case of such Colony until an Order is made. This is the commonest case, and
many illustrations might be given, e.g.,
Colonial Courts of Admiralty Act 1890, in the case of four Colonies
scheduled.
(b)
Suspend the Act or a portion of it, or apply it with modifications in the case
of a Colony, generally on the ground that the Legislature of the Colony has
made suitable provision for carrying out
the purpose of the Act, e.g., the Extradition Act 1870, sec. 18; Coinage Act 1853; Colonial Copyright Act 1847; International
Copyright Act 1886, sec. 8, sub-sec. 3; Patents
Designs and Trade Marks Act 1883, sec.104.
(c)
Supplement the Act, e.g., The
Charters of Justice of New South Wales 1823 and Tasmania 1831.
(d)
Bring new subjects within the scope of the Act, as where the operation of the
Act depends upon treaties, e.g., the Extradition Act 1870 and the International Copyright Act 1886.
(e)
Give to a Colonial Law the force of law throughout the British Dominions, e.g., Colonial Prisoners Removal Act 1884,
secs. 670-675 (Colonial Lighthouses, &c.) are made upon an address of the
Colonial Legislature.
3. PREROGATIVE ORDERS, CHARTERS, AND
LETTERS PATENT.—Prerogative Orders, including Charters and Letters Patent, are
not of the same importance in a settled as in a conquered Colony; as Constitutions
come to rest more and more on Statute, the Prerogative recedes. Its most
important exercise is in the grant of Constitutions, the establishment of
Executive authority, the appointment of Governors and the definition of their
powers, and the setting up of Courts of Justice. Most of these things in
Australia, however, are done by the Crown under statutory authority, and so
fall into the preceding class. The Orders in Council relating to colonial
currency are conspicuous cases of Prerogative Orders in operation in the
Colonies.
These instruments are contained in
volumes published annually by authority, and those in force are periodically
collected and published under the description “Statutory Rules and Orders
Revised.”
5. STATUTES AND ORDINANCES OF
COLONIAL LEGISLATURES.—Statutes and Ordinances made by the Legislature of the
Colony, meaning thereby the authority other than the Imperial Parliament or the
Crown in Council competent to make laws for the Colony, are of course the
ordinary source of new laws in the Colony. There may be more than one such
authority. Some Colonies have been formed by separation from others, and
inherit the laws enacted by the Legislature of the mother Colony before the
separation. Such laws, so far as they apply within her borders, the daughter
Colony may repeal. In other cases, there may be legislatures with exclusive
powers over different subjects, or with concurrent powers but so related that
in case of conflict the enactment of the one shall prevail over the enactment
of the other. Both these conditions are true of the Dominion of Canada, and of
those Colonies of Australasia which were members of the Federal Council of
Australasia. Generally, the powers are exclusive, but where the same matter is
within the power of both the central and the local Legislature, the enactment
of the central Legislature prevails. Each authority retains control over its
own laws, and alone may alter or repeal them.
Amongst “Laws and Ordinances made by
the Legislature of the Colony” are included many Acts of the Imperial Parliament
which have been adopted for the Colony by the local Legislature. They form part
of the ordinary legislation of the Colony, and are to be distinguished from
other local laws merely by a rule that where a Statute has before its adoption
by the Colony received an authoritative judicial construction in England, that
construction is generally deemed binding in the Colonies.[13]
6. ORDERS UNDER ACTS OF COLONIAL
LEGISLATURE.—Rules, Orders and Regulations issued by some authority within the
Colony under powers conferred by the Colonial Legislature, e.g., the Governor in Council, are hardly to be regarded as an
independent source of law, since they are issued by an authority acting by
delegation merely and are subject to the control of the Legislature.
[1] (1889) 14 A.C. 286
[2] Blackstone, Com. i. 107.
[3] (1889) 14 A.C. 286
[4] (1905) 2 C.L.R. 345, 356.
[5] Per Willes J. in Millar v. Taylor (1779), 4 Burr. 2303, at p. 2312.
[6] 2 Mer. 143, at p. 160.
[7] (1904) 1 C.L.R. 283.
[8] (1905) 2 C.L.R. 345
[9] See per Fellows J. in R. v. Mount, 4 A.J.R., at p. 39.
[10] See Lewis, Government of Dependencies, p. 201.
[11] Ellis v. McHenry, L.R. 6
C.P. 228
[12] New Zealand Loan and Mercantile Agency Co. Ltd. v. Morrison, L.R. 1898 A.C. 349.
[13] See Harding v. Commissioners of
Stamps for Queensland (1898), A.C. 769. But in R. V. Hyland (1898), 24
V.L.R. 101, the Supreme Court of Victoria declined to follow R. v. Hillman (1863), 9 Cox. 386, a decision on an English Statute
subsequently adopted in Victoria.
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