Legal independence of Australia legislature-Samples for Students

Questions: 1.Construct a timeline of the development of legal independence of the legislature in Australia from the time of settlement to the present day, indicating important steps and the means by which the step was taken, through legislation or some other event. 2.Construct a timeline of the development of legal independence of the court system in Australia from the time of settlement to the present day, indicating important steps and the means by which the step was taken, through legislation or some other event. 3.Write a short essay on the importance and effect of the Colonial Laws Validity Act 28 29 Vict. c 63 and the Statute of Westminster 1931 (Imp) 22 23 Geo 5 c 4. Answers: 1.Before the phase of settlement Europeans merely acted as explorers. When James Cook in 1770 covered the east coast line of Australia he claimed that the exploration was made in relation to a British territory. It was clear that no consultation had been done with the indigenous people along with entrance if no treaty. The act of James cook had been justified years latter through the doctrine of terra nullius (the land to nobody). In 1785 Orders-in-Council were issued by London which initiated the establishment of a colony in Botany Bay. Arthur Philip who had been appointed the governor-designate of the newly formed colony in 1786 created a detailed memorandum establishing that the laws of UK would be applicable in Australia and no slavery was allowed. In the year 1827 the first test of the doctrine was initiated in the court of NSW in the case of R v Tommy,[1827] NSWSupC 70 Supreme Court of NSW (24 November 1827) according to the case only when the issue was related to natives and the settlers were the natives imposed on by British laws. The New South Wales Act 1823 (UK) had been passed to proclaim Tasmania as a spate colony for that of NSW. The Colonial Laws Validity Act 1865 was passed to establish a relationship between colonial and imperial legislations. According to the legislation the colonial act was fully effective in the respective colony however is should not have any contradictory law to the imperial legislations. The legislation provided authority to colonial law making however in addition established that they are subordinate to the British parliament. The first formal step towards making the colonies federal was through the Federal Council of Australasia in the year 1885. However it was a weal and non legislative step. Two constitutional conventions had been initiated and adopted a constitution derived from American, British and other models. The constitution was provided approval by the six colonial voters. The constitution was then passed alongside some amendments which included provisions of appeals to the London Privy Council in form of a British parliament Act and came to be known as the Commonwealth of Australia Constitution Act 1990. The legislation was initiated on 1st January 1901 and marked the beginning of the commonwealth of Australia. However it was latter imposed by the British government that any Australian law would be eligible to be replaced by British monarchs within a year but this power was never exercised. In the mid 1920s the British governments established full legislative autonomy of the dominions. The legislative effect was given to this rule in the year 1931 through the Statue of Westminster 1931. The effect by the statue was taken in the year 1942 when the Statue of Westminster Adoption Act 1942 passed. The application of the legislation repealed the Colonial Laws Validity Act 1865. The legislation was in force till it was repealed by the Australian Act 1986. The legislation terminated effectively the power of the British government or parliament to enact laws for Australia. The legislation ensured that any law which previously required British assent could be passed by the Australian parliament. 2.The legal system of Australia had been developed in accordance to the legal system of Britain which was included in the system as a part of making Australia a British colony. A limited right had been granted by the British Parliament to the colonies to set up a local court system. Thus every colony had been provided to power to make laws in order to deal with specific situations. Thus separate development of laws and legal system was initiated in each colony. The concept of judicial independence which is presently established initiated in the year 1701. One of the central pillars of the Australian legal system is judicial independence. The Charter of justice was passed on 2nd April 1787 (UK) with respect to an Australian system of law. The colony of NSW had been established in 1788 after the NSW courts Act 1787 had been passed to keep the convicts under control. The colonel Collins commission (NSW) was passed on 14th January 1803 through which a convict system had been established by David Collins at Hobart. On 2nd April 1814 the Second Charter of Justice of New South Wales established the NSW supreme court of Civil Judicature. In the year 1823 the charter of Justice (UK) was passed on 13th October through which the Ad Hoc legal system of Australia had been subjected to regular procedures. In the year 1828 the Australian Courts Act 1828 (UK) was passed bringing the trial by jury to a stay. In the year 1903 the Judiciary Act 1903 (Cth) was passed through which a high court was gained by Australia but it lost the prime minister. In the year 1933 ACT Supreme Court Act 1933 (Cth) was passed through which a supreme court had been created. The appeals to the privy council by the high court were abolished through the efforts of the Privy Council (Appeals from the High Court) Act 1975 and Privy Council (Limitation of Appeals) Act 1968. In the year 1980 Coastal Waters (State Powers) Act 1980 (Cth) was passed which initiated a new High court building in Canberra by Queen Elizabeth II. The Australian Act 1986 (Cth) undid the old constitutional ties and initiated a strong step towards the independence of judiciary from the British rule. Under the chapter III of the constitution judicial breach of the government had been set out. The high court of Australia which was the federal Supreme Court was established through section 71 of the constitution. The court had been provided the power to govern its own activities in 1980 through the High Court of Australia Act 1979. The district court of NSW had commenced from 1st July 1973 through the passing of the District Court Act1973(NSW). 3.The British during the period of 1700-1900 made many colonies and within them introduced their own legal system. Various laws were passed by the British parliament in order to ensure that British supremacy continues to be established over the colonies. The purpose of this paper is to discuses two of such legislations namely the TheColonial Laws Validity Act 1865(28 29 Vict. c. 63)and the Statute of Westminster 1931 (Imp) 22 23 Geo 5 c 4. The paper discuses the importance and effects of the two legislations with respect to Australia. The Colonial Laws Validity was an act of British parliament. According to the title of the act it had been passed to abolish any doubts in relation to the colonial laws validity. The act purported to eradicate any visible inconsistency between colonial and British legislations. The act provided that the Colonial legislations which were passed in accordance to the provided procedures would have due effect in relation to the colony they have been passed in, however the provisions of such legislation should not be inconsistent to the provisions of any existing legislation of the British parliament. Any such provisions in colonial legislations were deemed to be invalid[1]. The effect of the legislation was such that the colonial legislatures had been provided with increased law a making powers however he supremacy of the British parliament was imposed upon them. Till the legislation was enacted a few local statues had been declared invalid by the judges on the grounds that they were not in consistent with an existing British legislation irrespective of the fact that such imperial legislations had the intention to be implemented in the colonies. The particular problem was causing serious issues in South Australia where on various occasions local laws were declared invalid by Justice Benjamin Boothby in the Supreme Court. It was accepted by the British till the year 1920 that full legislative authority has to be provided to the dominions and accordingly the statue of Statute of Westminster was passed repealing the provisions of the Colonial Laws Validity Act in Australia along with other counties like Canada, New Zealand, South Africa and NewFoundLand. The legislation was the first effort made by the British parliament to provide some apparent rights to the colonies towards law making. The rights are said to be apparent as the law made by the colonies would have been anyways in accordance to the law of the British parliament. Thus the colonies were provided an appreh ension that they have been provided with increased right whereas in reality the British parliament ensured supremacy without providing extra effort towards law making for the colonies. The Statue of Westminster has been modified in various ways so as to incorporate it within the legal system of Australia and other colonial countries[2]. The legislation has been repealed by New Zealand expressly and impliedly in those dominions which are no longer under the British. The act had immediate and in certain cases upon ratification effects through which the dominions governed by the British gained legal independence from being bound to consult the British parliament before making laws. Thus a statutory embodiment had been established based on equity which was set out in Balfour Declaration of 1926. It was the most significant step towards the making of Dominions in independent separate states[3]. The basis of the relationship which is continuing between the crown and the commonwealth realms is set out by the statue and this is its relevance in the present day. Certain political resolutions which had been passed by the Imperial Conferences of 1930 and 1926 particularly the Balfour Declaration of 1926 were given effect by the statue. The major effect of the statue was to abolish the power of the British parliament to make laws for the colonies which was provided by the Colonial Laws Validity Act 1865[4]. It was expressed by King Gorge that the laws of succession should be exempted from the statue, however as such desires would have been against the principles of the Balfour declaration so it was rejected. Section 4 of the statue provided that no act passed by the British parliament after the commencement of this act would extend to or apprehended to be extended as a part of law for any dominion unless the dominion had consented to such laws[5]. Section 2-6 off the statue was adopted by Australia through the Statute of Westminster Adoption Act 1942 so that validity of specific legislation of Australia can be clarified. The adoption was done during the initiation of the world war. The adaption of section 2 by the commonwealth of Australia ensured that the Australian parliament could enact legislations which did not have to be consistent with British legislations. In addition the acceptance of section 3 of the statue ensured that the parliament could make legislations which had an extraterritorial effect. Section 4 ensured that only if Australia consented to such act could Britain legislate in relation to Australia[6]. The capacity of legislating in relation to those areas which were not within the scope of the constitution was still vested in the British parliament through section 9 but such capacity was never used[7]. However, the powers of the British parliament with respect to legislating for Australia came to an end by th e acceptance of the Australian Act 1986. Concluding the paper it can be provided that the TheColonial Laws Validity Act 1865(28 29 Vict. c. 63) although only provided apparent powers to the colonies towards law making, it ensured that law making is initiated by the colonies themselves making them self sufficient in relation to laws. The colonies were not satisfied with the statue as it created a lot of issues where most of the legislations were declared inconsistent with the British laws even the British parliament did not intend to do so. The step towards gaining supreme law making power by Australia was initiated by the Westminster statue which abolished British indulgence in Australian law making. However not until the Australian Act was passed did Australia get official soverginity over law making. Bibliography Cunneen, Chris. "Colonial processes, indigenous peoples, and criminal justice systems." (2014). Day, David A., and David Day.Claiming a Continent. HarperCollins Australia, 2015. Lloyd, Clem, and Jacqui Rees.The last shilling: a history of repatriation in Australia. Melbourne Univ. Publishing, 2017. Norton, P. (2015).Back from Westminster. University Press of Kentucky. Prokhovnik, Raia. "From sovereignty in Australia to Australian sovereignty."Political Studies63.2 (2015): 412-430. Statute of Westminster 1931 (Imp) 22 23 Geo 5 c 4 The Australian Act 1986 TheColonial Laws Validity Act 1865(28 29 Vict. c. 63) TheColonial Laws Validity Act 1865(28 29 Vict. c. 63) Norton, P. (2015).Back from Westminster. University Press of Kentucky. Cunneen, Chris. "Colonial processes, indigenous peoples, and criminal justice systems." (2014). Prokhovnik, Raia. "From sovereignty in Australia to Australian sovereignty."Political Studies63.2 (2015): 412-430. Statute of Westminster 1931 (Imp) 22 23 Geo 5 c 4 Day, David A., and David Day.Claiming a Continent. HarperCollins Australia, 2015. Lloyd, Clem, and Jacqui Rees.The last shilling: a history of repatriation in Australia. Melbourne Univ. Publishing, 2017.