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The Australian Colonies: Common Sources of the Law.

1. LAWS OF ENGLAND.—All the Australian Colonies belong 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.note The sources of the law common to all these colonies are the following:

The laws of England at the time of the settlement (or some date fixed by statute in lieu thereof) so far as they are applicable to the conditions of an 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 of an infant colony.”note

The “Laws of England” include the Statute Law as well as the Common Law; the law so imported is what is sometimes called the Common Law of the colony. The applicability of any law according to the principle laid down is mainly a question for judicial determination, but this class of laws falls completely within the power of the Colonial Legislature, which may declare what laws are in force and may repeal any of them.

2. ACTS OF PARLIAMENT MADE APPLICABLE.—Acts of 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


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which, being part of the general law of England applicable to the circumstances of the colony, are received at its settlement as part of its common law; and it includes all Acts by which Parliament intends to bind the colonies, whether these Acts were passed before or after the settlement of the colony.note 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. An Imperial Act may relate or refer to persons, to things situated, to acts done, or to events happening in a colony or 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 Attorneys Relief Act, 1857, and the Amendment Act, 1884, the Colonial Probates Act, 1892, and the Finance Act, 1894. These and the like Acts are very commonly regarded as “in operation in 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, §§ 1 and 2, affects wills made in the colonies and wills of persons domiciled in the colonies, but only for the purpose of admitting them to probate in England or Ireland, and in Scotland to confirmation. The Bankruptcy Acts and the Companies Acts illustrate the two different kinds of operation. The Bankruptcy Acts vest in the trustee the debtor's 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 enjoyed in all


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parts of the British Dominions.note 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.”note

The general rule that Acts made applicable to a colony cannot be repealed or varied save by the Imperial Parliament is occasionally excluded by a provision giving special power to the Colonial Legislature to enact 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 as the provisions of the Merchant Shipping Act, 1894, relating to ships registered in the possession (§ 735).

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 purposes of the Act, e.g. the Extradition Act, 1870, § 18; Coinage Act, 1853; Colonial Copyright Act, 1847; International Copyright Act, 1886, § 8, sub. § 3; Patents, Designs, Trademarks Act, 1883, § 104.

(c) Supplement the Act, e.g. The Charters of Justice of New South Wales, 1823, and Tasmania, 1831.




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(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, § 12; The Fugitive Offenders Act, 1881, § 32; Merchant Shipping Act, 1894, § 264 (application of Part II. by Colonial Legislatures).

The Orders in Council under the Colonial Prisoners Removal Act, 1869, § 4, and the Merchant Shipping Act, 1894, §§ 670–675 (Colonial Lighthouses, etc.) are made upon an address of the Colonial Legislature.

4. PREROGATIVE ORDERS, CHARTERS, LETTERS PATENT.— Prerogative Orders, including Charters and Letters Patent, are not of the same importance in a settled as in a conquered colony, for 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 last class. The Orders in Council relating to Colonial Currency are a conspicuous case of Prerogative Orders in operation in the colonies.

The Orders in force in 1890 are contained in the collection published “by authority” under the title “Statutory Rules and Orders Revised.” The Prerogative Orders are contained in an appendix in volume viii. Later Orders are in subsequent volumes published annually.

5. LAWS AND ORDINANCES OF COLONIAL LEGISLATURES.— Laws 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. 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


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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 were true of those colonies of Australasia constituting the Federal Council of Australasia. Generally, these 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 may alone 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 deemed binding in the colonies.note

The powers of Colonial Legislatures are defined by the Colonial Laws Validity Act, 1865 (28 and 29 Vict., c. 63). They have power generally to make laws for the peace, welfare, and good government of the colony. Special powers of legislation have been conferred by the Imperial Parliament by many Acts on various grounds, of which the following may serve as examples:

(a) The general power to make laws has always been limited by a condition that such laws should not be “repugnant to the laws of England.” This condition has received widely different interpretations, and the views which has ultimately prevailed has been embodied in the Colonial Laws Validity Act, providing that:




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§ 2. Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

§ 3. No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England unless the same shall be repugnant to the provisions of some such Act, order, or regulation, as aforesaid.

But under the influence of narrower interpretations, Acts of Parliament had been from time to time passed to enable the Colonial Legislatures to make laws on specific subjects, e.g. 6 and 7 Vict., c. 22, empowering Colonial Legislatures to make laws for receiving the evidence of barbarous and uncivilized persons. These Acts, although the occasion for them has gone, are generally still in force.

(b) Colonial Legislatures are “local and territorial legislatures,” an expression used to denote that their power is different in kind from that of the Imperial Parliament. For while the Imperial Parliament, like the organs of every Sovereign State, is limited territorially by its power through the executive and the courts to give effect to laws, it can constrain every person and every authority within its borders to treat its enactments as valid; and the rule against the extra-territorial operation of statutes is a rule of interpretation merely, over-ruled by any clear indication of the intention of Parliament to apply an Act to persons or things outside of the British Dominions. The territorial limitation on a Colonial Legislature, however, is more than a rule of interpretation; it is a rule in restraint of power, sanctioned not merely by the refusal of foreign courts to recognize rights acquired or acts done under it, but by the refusal of the courts of the colony itself


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to treat the enactment as valid. This is the general but not the universal opinion as to the nature of the powers of a Colonial Legislature.note Many of the cases relied on for the opinion in question are unsatisfactory in that they are decisions, not of courts of the colony whose power is in question, but of an English court or the court of another colony asked to recognize and give effect to the law on grounds of comity. And adopting the opinion in question, we find no certain test of what is “legislation for the colony.”note The narrow view by which Parliament has sometimes been moved as to the powers of Colonial Legislatures is manifested by the Acts passed from time to time to enlarge their powers in special cases, e.g. 23 and 24 Vict., c. 122, enables Colonial Legislatures to enact that where any person feloniously injured within the colony shall die beyond the limits of the colony, the offence may be dealt with in the colony where the injury was inflicted. Other Acts enable Colonial Legislatures to make laws having a true operation outside their limits (a) as enabling acts of authority to be done, or jurisdiction to be exercised in respect of acts done or things happening, out of the colony, e.g. the Colonial Prisoners Removal Act, 1869, the Colonial Naval Defence Act, 1865, the Merchant Shipping Act, 1894, §§ 478 (Colonial Inquiries), 736 (Coastal Trade); or (b) as giving to Acts of the Colonial Legislature the force of law throughout the British Dominions, e.g. 28 and 29 Vict., c. 64, an Act to remove doubts respecting the validity of certain marriages contracted in Her Majesty's Possessions abroad. This is generally effected by an Order in Council made in pursuance of the enacting Imperial Act.

(c) The territorial boundaries set to a colony, whether by the Crown or by an Act of Parliament, and the constitution


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of a colony bind the legislature of the colony.note As far as the constitution is concerned, special power has been given in the Constitution Acts of the Australian Colonies to alter the constitution subject to the observance of certain forms, and by the Colonial Laws Validity Act, 1865, § 5 every representative legislature has full power, and is deemed at all times to have had full power to make laws respecting the constitution, powers, and procedure of such legislature, to establish and reconstitute courts and to make provision for the administration of justice therein. As to the territory of the colonies, this also is the subject of special provision in the Constitution Acts, having in view the great extent of New South Wales, South Australia, and Western Australia; and very naturally the power of subdivision was, subject to limitations, left in the hands of the Crown. In 1895 the Imperial Parliament passed the Colonial Boundaries Act, which, while conferring general powers of severance and delimitation on the Crown, provides that in the colonies with responsible government—which are set out in a schedule and include all the Australian Colonies—the power shall not be exercised except with the consent of the colony.

(d) The “local and territorial” nature of colonial legislatures has been regarded as implying the reservation of certain matters in which there must be one law for the Empire, or which fall within an Imperial rather than a local policy. Such matters are of course generally the subject of Imperial legislation, so that any Colonial Act thereon would be over-ridden by the Act of the paramount authority; but the opinion in question is that the matters referred to are excluded from the area of Colonial power, and that an Act of the Legislature under the general power to make laws for the possession would be ultra vires.

Colonial Acts conferring upon aliens the privileges of British subjects within the possession are the most common illustration of matters of this class, as is seen from Chalmers'


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Opinions. Sometimes the law officers allowed them to pass, more often they were disallowed, as beyond the province of a colony. At last 10 and 11 Vict., c. 83, was passed to quieten doubts; and besides confirming Colonial Acts of Naturalization, it conferred the power of local naturalization upon all Colonial Legislatures, a power confirmed by the Naturalization Act, 1870, § 16. In their fiscal and commercial policy, in the regulation of shipping and the jurisdiction of Admiralty, the colonies came at the outset under a political system which treated these matters as Imperial. As the older policy has been abandoned, it has generally not been deemed sufficient to repeal the paramount Imperial Acts; power of legislation has been specially conferred. In regard to duties of customs, the restrictions which accompanied the grant of representative institutions to the Australian Colonies by 13 and 14 Vict., c. 59, have been removed by 36 and 37 Vict., c. 22, and 58 Vict., c. 3. The special powers to make laws with respect to the coasting trade and certain other matters of shipping are due partly no doubt to the “territorial” limitations on the legislature, but partly also to the opinion that the regulation of trade was essentially Imperial. The same may be said of defence. The Colonial Naval Defence Act, 1865, though in supplement of the territorial powers of the Colonial Legislatures, also authorizes the proper legislative authority to make proper provision for maintaining discipline among the officers and men while ashore or afloat within the limits of the colony (§ 3). The Army Act 1881, § 177, provides that where a force is raised in a colony, any law of the colony may extend to such force, whether within or without the limits of the colony; and that when such force is serving with Her Majesty's regular forces, the Act shall be in supplement of the law of the colony. The Court of the Vice-Admiral in a colony has always been a branch of the Admiralty and outside the Colonial system of courts and jurisdiction. The Court, its judge, and jurisdiction alike have been regulated by Imperial and not by Colonial Statutes and Orders. In 1890, however, by the Colonial


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Courts of Admiralty Act, it was provided that every court of law in any colony declared in pursuance of the Act to be a Court of admiralty, and in the absence of such declaration, every court with unlimited civil jurisdiction should have the same admiralty jurisdiction as the High Court in England; and (§ 3) the legislature of any British possession may declare any of its courts of unlimited civil jurisdiction to be a Colonial Court of Admiralty, and may limit territorially or otherwise its admiralty jurisdiction, and may vest partial or limited jurisdiction in any inferior or subordinate court. The Legislature may not, however, confer any jurisdiction not by the Act conferred upon a Colonial Court of Admiralty.

The opinion that for some matters the Colonial Legislature does not possess the power even of internal legislation has thus been a reason for conferring special powers. Whether it is well founded has never been authoritatively decided. But if it was a correct opinion, its effect does not appear to be altered by the Colonial Laws Validity Act, 1865, for that Act merely deals with the ground of repugnancy to the laws of England, and, as was pointed outnote many years ago, the objection of “repugnancy” is one thing, the objection of “want of power” is another.

6. ORDERS UNDER ACTS OF COLONIAL LEGISLATURES.— 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. But the Governor has power under some Imperial Acts to issue proclamations making regulations upon certain matters, e.g. the Merchant Shipping Act, 1894, §§ 366 and 367, and “every such proclamation shall have effect without as well as within such possession, as if enacted in this part of this Act.”




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