Monday, November 12, 2012


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sometimes of Legislatures between which the power of legislation is divided, sometimes of Legislatures which have been superseded by others, as Colonies have been divided or joined together, or their progressive development has been marked by changes in their institutions.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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