Australian Constitutional History

The Constitutional history of Australia began with the first white settlement in Sydney in 1788 and has undergone numerous constitutional changes since.

Prior to white European settlement of Australia in 1788, Europeans had been to the land merely as explorers. The only exception was James Cook who in 1770 sailed up most of the east coast of Australia and then claimed the entire coastline he had just explored as British territory. The basis of the claim is not clear, but it is clear that the indigenous peoples were not consulted and no treaty was entered into. In later years the doctrine of terra nullius was invoked in justification of the act.

Orders-in-Council were issued in London on 6 December 1785 for the establishment of a colony in Botany Bay.Arthur Phillip was appointed Governor-designate of the new colony in October 1786. Soon after Lord Sydney appointed him governor, Phillip drew up a detailed memorandum of his plans for the proposed new colony. In one paragraph he wrote: "The laws of this country [England] will of course, be introduced in [New] South Wales, and there is one that I would wish to take place from the moment his Majesty's forces take possession of the country: That there can be no slavery in a free land, and consequently no slaves." Actual white European settlement commenced with the arrival of the First Fleet, comprising 11 ships which arrived at Botany Bay, New South Wales between 18 and 20 January 1788. The Fleet brought a total of 1044 people to the new settlement, of whom 696 were convicts. The actual settlement was located at Sydney Cove. The colony was formally proclaimed by Governor Phillip on 7 February 1788 at Sydney. However, though the settlement was a military prison, and Phillip had full power as governor, the colony also had a civil administration and courts of law.

The first test of the doctrine of terra nullius occurred in R v Tommy which held that the native inhabitants were only subject to English law where the incident concerned both natives and settlers. The rationale was that Aboriginal tribal groups already operated under their own legal systems. This position was further reinforced by the decisions of R v Ballard and R v Boatman. In 1835, Governor Bourke issued a proclamation which showed the implication of the doctrine of terra nullius. He proclaimed that Indigenous Australians could not sell or assign land, nor could an individual person or group acquire land, other than through distribution by the Crown. The proclamation was approved by the Colonial Office on 10 October 1835. The proclamation was issued in response to the attempt by graziers from Van Diemen's Land to enter into an agreement with indigenous tribes in Port Philip, known as Batman's Treaty.

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