A Legal History for Australia

Sarah McKibbin is Lecturer in Law, and Libby Connors and Marcus Harmes are Associate Professors, all at the University of Southern Queensland.

1. The Origins of the Common Law
Introduction
The Sources for Medieval Legal History
Documentary Evidence
Treatises
Educational
Law and Governance in Pre-Conquest England
Impact of the Norman Conquest
Feudalism
Centralisation of Royal Justice
Juries
Instruments of Justice
Experiences of Justice
In the Wake of Magna Carta
Thirteenth Century Law
From the Middle Ages to Mabo
Conclusion
2. The Intellectual Life of the Law and Lawyers from the Middle Ages to Edward Coke
Introduction
The Crown and the Courts
The King’s Judges
Forms of Action and Types of Court
Jurisdiction of the Royal Courts
Being in a Medieval Court
Trespass: The Versatile Action
The Humber Ferry Case
The Legal Profession and its Education
Law Reporting
The Year Books
Nominate Reports
Official Reports
Assumpsit Again: Slade’s Case and the Law in Tudor England
Slade’s Case, 1597–1602
Conclusion
3. The English Revolutions: Parliament, the King and the Law Courts
Introduction
Law and Religion: Sixteenth to Seventeenth Centuries
The Ecclesiastical High Commission
The Crown and Common Law
Equity and the Common Law
Chancery
Star Chamber and Court of Requests
The Common Law and Parliament
The King and Parliament
Parliament and the Common Law
Law and the English Civil Wars
The Interregnum, 1649–60
The Restoration (1660)
The Glorious Revolution
Before the Revolution
Aft er the Revolution
Conclusion
4. Responsible Government, Law and Justice in Eighteenth-Century England
Introduction
The Act of Settlement 1701
The Protestant Succession
The Acts of Union 1707
Emergence of Responsible Government
The Office of Prime Minister
Cabinet Government
Criminal Law and Criminal Trials in the Eighteenth Century
Developments in Criminal Law
Public Execution and Justice
The Reception of English Law Abroad
Abolition of the Slave Trade
Conclusion
5. The American Constitutional Settlement
Introduction
The Stamp Act Furore
The Boston Tea Party and the Intolerable Acts
The First Continental Congress
The Declaration of Independence
The Articles of Confederation
The Constitution of the United States
Two Early Political Factions: Federalists and Democratic-Republicans
Conclusion
6. Reform of British Parliament, Society and Courts in Nineteenth-Century England
Introduction
Reform of the Courts
The Court for Divorce and Matrimonial Causes
Courts of Common Law and Equity
The Judicature Acts
Reform of the British Parliament: Modern Political Parties
Catholic Emancipation and Jewish Relief
The Great Reform Act 1832
The Second Reform Acts of 1867–68
Later Nineteenth-Century Reforms
Codification Movement
Law and Society in the Nineteenth Century
Conclusion
7. The Reception of English Law in Australia
Introduction
The Eighteenth-Century Context: Idealism and Slavery
The English Criminal Justice System and Convict Transportation
Convicts’ Rights
The Governor’s Powers
Early Colonial Legal System
The Court of Criminal Judicature
The Court of Civil Jurisdiction
The First Supreme Court of New South Wales
The New South Wales Act 1823, the Third Charter of Justice and the Supreme Court of New South Wales
The Legal Profession in New South Wales: 1788–1859
Reception of English Law
Conclusion
8. Self-Government and Law in Colonial Australia
Introduction
The End of an Era: Convict Transportation
The Amateur Magistracy in the Colonies
The Path to Responsible Government: 1823–50
The New South Wales Act 1823
Australian Courts Act 1828
New South Wales Constitution Act 1842
Australian Constitutions Act 1850
Representative and Responsible Government from 1850
Bicameralism
Separation, Responsible Government and Unicameralism in Queensland
Colonial Laws Validity Act 1865
Manner and Form
The Federal Idea and the Federal Council of Australasia
Conclusion
9. Indigenous Australia and the Law in the Colonial Period
Introduction
Aboriginal Australia before European Contact
International Law by 1787
Settlement, Conquest and Cession
Early Contact: British Sovereignty?
A New Legal Fiction
The Myall Creek Massacre and Trials
‘One Law for All’ in Other Australian Colonies
The Melanesian Labour Trade
Annexation of the Torres Strait Islands to Queensland
Conclusion
10. Federation
Introduction
The Federation Movement
Influence of the United States Constitution and Canada’s British North America Act 1867
Federation Debates
Australasian Federation Conference, 1890
National Australasian Convention, 1891
Corowa Federation Conference, 1893
National Australasian Convention, 1897–98
Referenda on the Constitution Bill
The Commonwealth of Australia
The Commonwealth of Australia Constitution Act 1900 (UK)
High Court of Australia
The Privy Council’s Continuing Role
Investing Federal Jurisdiction in State Supreme Courts: The ‘Autochthonous Expedient’
The Office of Governor-General
Conclusion
11. Australian Constitutional Independence and Legal Developments of the Twentieth Century
Introduction
White Australia Policy
Immigration Restriction Act 1901
The Case of Egon Kisch
Changing Views of States’ Rights
Case Study of Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
Constitutional Independence in Australia
Treaty of Versailles 1919
Balfour Declaration of 1926
Statute of Westminster 1931
Australia in World War II: The Statute of Westminster Adoption Act 1942 (Cth)
Judicial Review During the Cold War
The Dismissal of Gough Whitlam
Commonwealth and State Alignment: Australia Acts 1986
Termination of Privy Council Appeals
The Mason Court
Conclusion
12. The Painful Legacy of Colonialism: Aboriginal and Torres Strait Islander People and the Law in Modern Australia
Introduction
1967 Australian Referendum
Indigenous Australians and the Right to Vote
Amending the Constitution
The Gove Land Rights Case
Land Rights Movement
The Commonwealth Racial Discrimination Act 1975
Koowarta v Bjelke-Petersen
Mabo v Queensland (No 1)
Mabo v Queensland (No 2)
Native Title at Last!
The Legal Foundations of the Stolen Generations and Stolen Wages
Stolen Generations
Stolen Wages
Deaths in Custody
Indigenous Sentencing Courts
The Northern Territory Intervention
The Uluru Statement from the Heart
Conclusion