‘New quilts from old rags’
The Francis Forbes Society for Australian Legal History held its annual lecture on Thursday, 3 November 2005 in the Bar Association Common Room. Titled ‘New quilts from old rags’, it was delivered by the Hon Justice B H McPherson CBE, of the Queensland Court of Appeal.
Justice McPherson discussed three of the principal ways in which English law was transmitted to British overseas territories: letters patent and colonial charters, the king’s
duty of protecting his subjects and the ‘theory of colonial birthright’.
Following the American Revolution, the British Parliament did not legislate for most communities of free English settlers beyond the seas. The colonies in eastern Australia differed insofar as many of the early arrivals were either ‘under military discipline’, or convicted felons who had been sentenced to death and so were attainted and unable to sue or own property. It was for this reason, McPherson JA argued, that in 1828 English law was directly extended by an imperial Act of the Parliament – the Australian Courts Act.