Introduction

In outlining the evolution of the constitutional systems of the six Australian States – New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia – the starting point is the arrival of Captain Cook in 1770 and the subsequent settlement under Governor Phillip at Sydney Cove in 1788. These events extended English power to New Holland, as Australia was then known, from which emerged in the 19th century six self-governing colonies. Federation in 1901 as States of the Commonwealth of Australia completely transformed their constitutional status. Regrettably, the great Aboriginal civilisation which preceded this European invasion had little impact on this constitutional evolution – at least not until the High Court's decision in Mabo v Queensland (No 2) in 1992. Aboriginal customary law in 1788 was then unknown and ignored. Today much more is understood.

Despite the absence of any centralised authority or political organisation, there was within each Aboriginal tribe a sophisticated system of ‘law’ in terms of traditional customs and rules, generally of a religious nature, which regulated daily life. The predominant focus of Aboriginal customary law was to keep the peace by resolving or averting personal conflicts. Rituals or procedures provided for the imposition of penalties, duels and forms of symbolic washing, where kinship played a central role as a conforming force. In some tribes, elected elders met in a type of council or janarumi with their ceremonial possum fur cloaks.