National Report for Australia

Author(s):  
Christopher Symes ◽  
Jeffrey Fitzpatrick

Australia’s contract law is an amalgam of common law rules, equitable principles, and statute law. Its genesis lay in centuries of development of these three branches of English law. Principles of modern contract law had their roots in the rise of English maritime law during the sixteenth century. In 1788, England established a penal colony at Sydney Cove, seeding the colony of New South Wales. At that moment, all existing English contract law simply flowed into this ‘new’ land as intellectual baggage. Slowly Anglo Australia’s legal and legislative framework evolved from a patchwork of distinct English colonies into a commonwealth of Federal, State, and Territory Governments. The gloss of contract law took on an increasingly antipodean sheen. This resultant ‘system’ of law is a complex relationship between common law, equity, and Federal, State, and Territory legislation. Throughout this chapter we shall use the term ‘general law’ to mean the principles and rules of common law and equity.

1991 ◽  
Vol 9 (2) ◽  
pp. 269-325 ◽  
Author(s):  
Bruce Kercher

The penal colony of New South Wales was founded in January, 1788, with a population of convicts, military people, and a few civil officers. The settlement displaced one of the oldest cultures on earth, as English law failed to recognize that the Aborigines had any right to the land they had occupied for 40,000 years. On their first night ashore the women convicts were greeted by mass debauchery that deserved to be recorded by Hogarth, all under a heavy thunderstorm.


2017 ◽  
Vol 76 (3) ◽  
pp. 483-486 ◽  
Author(s):  
Paul S. Davies

Both interpretation and rectification continue to pose problems. Difficulties are compounded by blurring the boundary between the two. In Simic v New South Wales Land and Housing Corporation [2016] HCA 47, the High Court of Australia overturned the decisions of the lower courts which had held that performance bonds could be interpreted in a “loose” manner in order to correct a mistake. However, the documents could be rectified in order to reflect the actual intentions of the parties. This decision should be welcomed: the mistake was more appropriately corrected through the equitable jurisdiction than at common law. Significantly, the concurring judgments of French C.J. and Kiefel J. highlight that the law of rectification now seems to be different in Australia from the law in England. It is to be hoped that the English approach will soon be revisited (see further P. Davies, “Rectification versus Interpretation” [2016] C.L.J. 62).


2019 ◽  
Vol 59 (5) ◽  
pp. 1139-1160
Author(s):  
Barry Godfrey

Abstract Between 1850 and 1868, a natural experiment in punishment took place. Men convicted of similar crimes could serve their sentence of penal servitude either in Britain or in Australia. For historians and social scientists, this offers the prospect of addressing a key question posed over 200 years ago by the philosopher, penal theorist and reformer Jeremy Bentham when he authored a lengthy letter entitled ‘Panopticon versus New South Wales: Or, the Panopticon Penitentiary System, and the Penal Colonization System, Compared’. This article answers the underlying tenet of Bentham’s question, ‘Which was best prison or transportation?’ by applying two efficiency tests. The first tests whether UK convicts or Australian convicts had higher rates of reconviction, and the second explores the speed to reconviction.


2000 ◽  
Vol 18 (3) ◽  
pp. 659-666 ◽  
Author(s):  
Bruce Kercher

When it was established in 1788, New South Wales became the most remote, and most peculiar, of the British empire's overseas colonies. The founding colony of what would eventually become Australia, it was established as a penal colony, a place to send the unwanted criminals of Britain and Ireland. Britain lost more than the majority of its North American possessions in the late eighteenth century. It also lost its principal repository for unwanted felons. New South Wales filled the gap.


1971 ◽  
Vol 3 (4) ◽  
pp. 177-181 ◽  
Author(s):  
Samuel Clyde McCulloch

Australians recognize distance and isolation as a mold which shaped their history. Geoffrey Blainey observes this in his brilliantly provocative book, The Tyranny of Distance, and points out the consequences of Australia's geographic situation. Australia is at least 12,000 miles from England, and her continental perimeter is another 12,000 miles. Because of slow and uncertain communications between Australia and Whitehall from 1788 to 1850, the governor was really “the man on the spot”; he had often to act more independently than his instructions intended, and at times he defied both Whitehall and the colonists, sometimes at the same time. Although his link with the Colonial Office was direct, the secretaries of state to whom he was responsible changed frequently; yet much of our information comes from the dispatches between these officials.The colony of New South Wales comprised nearly all of eastern continental Australia until 1850. It was founded as a penal colony in 1788. The commission of the first governor, Arthur Phillip, gave him almost complete autocratic powers over the colony, prompting a military attaché to observe: “I never heard of any one single person having so great power vested in him as the Governor.” This commission stood, with some slight exceptions, for more than thirty years.Because of these extraordinary powers, the early governors were called autocrats. Although the British government decided how many convicts were to be sent and the colonial secretaries in London issued frequent instructions, the distance and slow mails — three to six-month voyages en route each way — placed the governor in complete control of the colony's expansion. Thus, the disposal of land, labor, and capital depended on each governor's individual discretion. After 1824, when George Arthur became lieutenant governor, Tasmania became independent from New South Wales. Eventually, these two autocratically ruled prison farms became prosperous self-governing colonies after 1850. Meanwhile, Western Australia and South Australia were founded sans convicts in 1829 and 1836, respectively. This paper will deal first with New South Wales, and more briefly with Tasmania, Western Australia, and South Australia.


2010 ◽  
Vol 18 (1) ◽  
pp. 71-90 ◽  
Author(s):  
Frank Decker

This article provides a revised account of the development of financial instruments, money and banking in the early penal colony of New South Wales. It is found that private instruments monetised the economy, while the role of state debt, coin and commodities was to finally settle remaining balances. Money originated in the form of small merchant notes. These were created by the need to pay labourers and underpinned a local pound currency standard. A detailed review of colonial court cases and currency legislation reveals that the first bank was founded, contrary to colonial orders, to remove the disruptive impact of exchange rate fluctuations and to achieve a stable private note issue at par with pound sterling bills on London.


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