Throughout that whole region, modified British Common Law alone then held sway — and still does. This is so for at least four reasons.
First, because Captain James Cook on Possession Island (just North of the Northernmost point in Queensland) on 22nd August 1770 took possession for Britain of the whole of the Eastern Coast — right down to the 38th Degree South Latitude.
Second, because Governor Phillip claimed the 135th Degree East Longitude — as the westernmost boundary of the Colony in 1786.
Third, because New South Wales Governor Phillip's 1787 jurisdiction included Tasmania — over which the British flag was hoisted even before its first colonization in 1803f.
Fourth, all of these 1770-87 events transpired before the establishment of Britain's first colony within Australia.37 That latter event occurred only in 1788.
In 1823, a Legislative Council in New South Wales was set up by Act of the British Parliament — giving that Council power to make any laws consistent with those of
36 M.J. Detmold's book The Australian Commonwealth, 1985, ch. 4. 37 Wood: op. cit., p. 258.
THE CHRISTIAN FOUNDATIONS OF AUSTRALIA
England. It set up a system of law courts on the English model, allowing some cases to be tried by jury. However, convicts and emancipists were not allowed to be jurymen.38
Now the power to make new laws for the Colony was vested not in the king but in Parliament.39 This means that in Australia the Crown (as distinct from Parliament) could not legislate by royal prerogative with respect to New South Wales (as a settled colony) in the way that it lawfully could do as regards conquered territories. This important fact itself largely secured the rule of law.40 Had the New South Wales Legislature not itself been set up in 1823 with power to legislate, the Church of England would have continued to enjoy also in New South Wales the preferred status which it then had and still has in England. However, even with the setting up of the New South Wales Legislature in 1823, the dominant significance of the Christian religion within the Colony continued.41 See the 1948 case of Wylde v. Attorney-General.42
The great influence in Australia of the renowned Presbyterian Rev. Dr. Lang
Already from 1823 onward, the tremendous political and religious and social influence in Australia of the famous Presbyterian Minister Rev. Dr. John Dunmore Lang should be noted. A Scot by birth and a graduate of the University of Glasgow, he had been influenced by the famous leading Evangelicals Thomas Chalmers and Rev. Professor Dr. Stevenson Macgill.43
Lang arrived in Sydney during 1823. He believed profoundly that the character of a nation is determined by that of the people. So he bent himself to secure immigrants in whom religion, education and industry would be displayed.44
In 1831, Lang established a family emigration scheme. He urged Brisbane Town to establish a Constitution, with convicts not welcome. He recruited Ministers from Europe for what is now Queensland. In 1833 & 1836, he was in Britain and appealed to the Church in Germany for Missionaries to seek the conversion of native Black Australians — the so-called 'Aboriginees' of Moreton Bay near Brisbane. The Mission was planted at Zion's Hill, near Nundah.
Indeed, it soon came to pass that the penal settlement near Brisbane was closed down and the last convicts evacuated. The area was opened up to free immigrants, from 1842
38 Ib., p. 101. 39 E.C.S. Wade & O.G. Phillips: Constitutional Law, 6th ed., p. 390, n. 2. 40 D.P. O'Connell & A. Riordan: Opinions on Imperial Constitutional Law, 1971. 41 A.C. Castles: An Australian Legal History. 1982, pp. 46 & 67f. 42 Wylde v. Attorney-General (1948) 78 C.L.R. 224 & 257 per Latham C.J. 43 R.S. Ward: The Bush Still Burns: the Presbyterian and Reformed Faith in Australia, Globe, Brunswick Vic., 1989, p. 34. 44 R. Bardon: Centenary History of the Presbyterian Church of Queensland, 1849 – 1949, Brisbane, Smith & Patterson, 1949, pp. 12f. See too art. Lang, John Dunmore (in CEANZ I:546).