Question: “To what extent did the concepts and institutions of the Western legal tradition influence the colony of New South Wales and, ultimately, the development of the Australian legal system?”
The writer has used key term from the question, such as “Western legal tradition”, in their intro
Clear, short headings have been used in the body to indicate what part of the question is being answered.
To support their discussion, the student has used outside sources, indicated by footnotes. These sources have been paraphrased, rather than quoted, which contributes to the fluid writing style.
The student restates their thesis statement clearly and decisively in their conclusion, as well as summing up their main points
It can be said that the Western legal tradition substantially influenced the colony of NSW, and ultimately the development of the Australian legal system, however it is clear the Australian legal system is not a direct model of the British system. Although it did extract some of the key components of the British legal system such as the rule of law, jury system, common law, statute law, and split profession system, it had to be adapted to suit a different country, different circumstances and a different population The Australian legal system has developed, based on its population’s needs, to provide a just and equitable system of law and government for all Australians.
The Western Legal Tradition
The Australian and British legal system is founded upon the rule of law coming from the creation of the Magna Carta1. The English people made it clear that everyone was subject to the law including the King2, this led to the creation of a system of parliament3. Elements of the Magna Carta remain in Australian law today4 and the foundations of freedom laid down within it have been brought up in many Australian legal cases5.
The development of the rule of law in England came from a desire to restrain the King’s power6. James I, like many monarchs, believed it was sedition to limit a King’s power, due to his divine right to rule7, but lawyers believed that the King’s power was limited to that given to him by law8, that the King’s powers should be limited to managing good government and minor aspects of the realm such as coinage, which have no effect on the restriction of people’s rights9.
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Influence on the Colony of New South Wales
On the 28th July 1828, which is known as the date of reception, it was determined that all applicable English statute and common law was to be applied to the colonies of NSW and Tasmania10. For most of the 19th Century the doctrine of repugnancy meant that colonial legislation was void if it contradicted with English law11, whilst the doctrine of paramount force meant that any applicable English Act was also in force in the colony depending upon circumstance12. In South Australia the repugnancy regulations were implemented so excessively that creating legislature became impossible13. This led to a formalisation of Britain’s regulation over the colonies’ creation of laws14. However, it also led to each colony having power to amend their individual constitutions15.
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The circumstances of the colony were different from that of Britain and this was significant in creating a departure from English law16. In English law any person convicted of a crime were “civilly dead”17, meaning they had no access to the courts. Australia was a penal colony and much of its population were convicts, which meant this would limit much of the population access to the legal system18. In 1788, two convicts, Henry and Susannah Kable, were allowed to bring the first civil action in Australia19. This was the first of many distinctive differences as Australian law became established in its own right, no longer merely a direct derivative of the English legal system.
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Although established on the same model as the British legal system, and initially under its control, the Australian legal system has developed independently. Although it includes many major aspects of English law such as a jury system, rule of law, common law, statute law, and a split profession system, it was adapted to suit a different country, different circumstances and a different population.
By 1860, although still governed by the monarch, all Australian colonies except for Western Australia had an upper and lower house of parliament20, and Britain became decreasingly involved in Australia’s affairs and legislation. Indeed many laws passed in Australia were radically in advance of Britain2122. The final detachment of Australia’s legal system from that of Britain’s came when Australia successfully terminated Britain’s power to create legislation binding within Australia, terminated Britain’s restrictive ability on legislation of States, and terminated the ability to make appeals to the Privy Council23.
The writer’s thesis statement is expressed clearly at the beginning of the introduction. The rest of the intro outlines the main points which will be covered in the essay
The first sentence is a topic sentence which states the main point of the paragraph. Note the repetition of the term “rule of law”, taken from the intro. Key terms are used consistently throughout the essay in strategic areas, like topic sentences, to create cohesion and flow.
These two paragraphs end with concluding sentences which directly link back to the thesis statement expressed in the introduction: that Australian law is impacted by, but not identical too, the British system.
The student’s final statement highlights the substantial difference between the two legal systems, with phrases such as, “decreasingly involved and “final detachment”, ending the essay off on a decisive note.
3 WS Holdsworth, A History of English Law, (Methuen & Co, London, Vol 1, 3rd edn, 1922) 54, extracted in Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed, 2009) 47.
4 Vines, above n 47.
5Prisoners A-XX (inclusive) v NSW  38 NSWLR 622 as extracted in Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed, 2009) 48-50.
6 Vines, above n 98.
7 Somerville, Politics and Ideology in England, 1603-1640, (Longman Group, United Kingdom, 1986) 100-107 as extracted in Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed, 2009) 99.
10Australian Courts Act 1828 (Imp) s 24.
11 Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed, 2009) p 174.
14Colonial Laws Validity Act 1865 (Imp) s 2.
15 Vines above n 45.
16David Neal, The Rule of Law in a Penal Colony: law and power in early New South Wales, (Cambridge University Press, 1991) 24-25; 63, 76, as extracted in Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed, 2009) 165-166.
17 David Neal, The Rule of Law in a Penal Colony: law and power in early New South Wales, (Cambridge University Press, 1991) 24-25; 63, 76, as extracted in Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed, 2009) 4.
20 Prue Vines, Law and Justice in Australia (Oxford University Press, Melbourne, 2nd ed, 2009) 185-187.