Explain the origins of the Australian legal system, including the reception of English law and the place of Aboriginal and Torres Strait Islander customary law.

What this dot point is asking

You must explain how Australian law originated in English law, what was inherited, and how the law has dealt with Aboriginal and Torres Strait Islander legal traditions.

Reception of English law

When Britain established colonies in Australia from 1788, it brought English law with it. This is called the reception of English law. The colonies were treated as settled rather than conquered, which meant English law applied automatically as the law of the colony.

Australia inherited several enduring features from this English foundation.

• The common law tradition, where judges develop law through decided cases.
• The doctrine of precedent, under which courts follow earlier decisions of higher courts.
• The Westminster system of responsible parliamentary government.
• The adversarial system of trial.
• Core legal concepts such as the presumption of innocence and trial by jury.

Growing independence

Over time Australian law became independent of England. Federation in 1901 created a national parliament and the High Court. Appeals to the Privy Council in London were gradually abolished, and the Australia Acts 1986 ended the remaining legal links, confirming that Australian courts and parliaments are the final source of Australian law.

Aboriginal and Torres Strait Islander law

Aboriginal and Torres Strait Islander peoples had complex systems of law and custom long before 1788, governing land, kinship and obligations. For most of Australian legal history these systems were not recognised. The land was treated as terra nullius, meaning land belonging to no one, which was used to justify the assertion that English law applied to empty territory.

This changed with the High Court decision in Mabo v Queensland (No 2) (1992), which rejected terra nullius and recognised that native title could survive where a connection to land had been maintained. The Native Title Act 1993 (Cth) then created a national framework for claiming and recognising native title.

Why origins matter

Understanding origins explains why the Australian system looks the way it does. The common law and precedent come from England, which is why courts make law as well as parliament. The recognition of native title shows that the law can correct its own historical wrongs through the courts, an example of the legal system responding to changing community values. It also shows the tension between certainty, the inherited tradition, and the need for the law to reflect justice for all groups.

Connection to the rest of the course

These origins underpin sources of law, the doctrine of precedent and the constitutional structure created at Federation. The recognition of native title connects directly to rights protection, law reform and the role of the High Court in shaping the rights of groups within the Australian community.