The not-so-secular foundations of Australia’s legal-political institutions

civil-litigation

While the Australian legal-political tradition cannot lay claim to the historical depth of America and the United Kingdom, it too was built on solid foundations—starting with the first British fleet departing for Australia in 1787, when Captain Arthur Phillip was instructed to take such steps as were necessary for the celebration of public worship.

At the time of British settlement in Australia, Christianity formed an integral part of the theory of English law and civil government. In his seminal work, A History of English Law, Sir William Holdsworth expressed the traditional view of the close relationship between Christianity and the common law:

Christianity is part and parcel of the common law of England, and therefore is to be protected by it; now whatever strikes at the very root of Christianity tends manifestly to dissolution of civil government.

While the penal colony of New South Wales was established in 1788, English law was not recognised until the passage of the Australian Courts Act 1828 (Imp.). This Act determined that all laws and statutes in force in England at that time were to be, as far as it was possible, applied in the courts of New South Wales and Van Diemen’s Land.

When the English common law was transplanted to Australia, the supreme courts of the colonies were empowered to decide which English laws were applicable to Australia. It was at that moment that Christianity was included in the law of the land.

The place of Christianity in the common law was not only acknowledged, but unconditionally adopted by the Supreme Court of NSW in the case of Ex Parte Thackeray (1874). The reception of these principles was perhaps best encapsulated in that case by Justice Hargrave, who famously commented that:

We, the colonists of New South Wales, “bring out with us” … this first great common law maxim distinctly handed down by [Sir Edward] Coke and [Sir William] Blackstone and every other English Judge long before any of our colonies were in existence or even thought of, that ‘Christianity is part and parcel of our general laws’; and that all the revealed or divine law, so far as enacted by the Holy Scripture to be of universal obligation, is part of our colonial law….

It has been said that a people without historical memory can be easily deceived by false and destructive philosophies. Although undeniably diminished and rarely acknowledged, the Christian religion has an enduring role in the Australian legal-political system. In these days of political correctness and cultural relativism, it is always good to be reminded of our Christian heritage, which still permeates most of the present laws and socio-political institutions of this democratic nation. To state this obvious fact is not to be ‘intolerant’ but to simply stress an undeniable truth.

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