Originially from: World Arbitration and Mediation Review (WAMR)

Worldwide Perspectives on Mediation
by
David Spencer

and Nadja Alexander

Australia
The Australian mediation landscape is dominated by court-annexed schemes and in
subsequent months this column will report on some of the interesting developments in mediation
law and practice in Australia and elsewhere. However, in order to understand the system of
court-annexed mediation operating in Australia, it is necessary to take you, the reader, on a short
tour of the Australian legal system. I hope you enjoy the tour!
The first English settlers came to Australia in 1788 and, by virtue of their settlement,
annexed it to the British Dominions, thereby imposing English law on the indigenous Australian
population. This consisted of statute and judge-made law as it applied in England. The first
formal statute giving the power of English law in Australia was passed by the Imperial
Parliament of the United Kingdom in 1823. The original colony in Australia was called New
South Wales. In 1836, the colony of South Australia was established followed by the colony of
Victoria in 1851. The colony of Queensland was established in 1859 and Western Australia (not
originally part of New South Wales) was founded independently in 1829. These colonies (now
States) operated as colonial systems of government and achieved parliamentary and legal
independence each having their own constitution. In 1901, after much negotiation, the separate
colonies of Australia agreed to a federal system of government which came into being after the
enactment of the Commonwealth of Australia Constitution Act 1900. The federation now
consists of six states and two territories being: Australian Capital Territory; New South Wales;
Northern Territory; Queensland; South Australia; Tasmania; Western Australia; Victoria.
The establishment of the Commonwealth of Australia means that, today, Australia has
nine legal jurisdictions—one for each State and Territory and one for the Commonwealth of
Australia. While Australia’s legal system is self-contained in that it has its own final court of
appeal, being the High Court of Australia, its historical roots are still prevalent by virtue of the
fact that the prevailing English monarch is still the Head of State and legislation has to be
assented to federally by the monarch’s representative—the Governor-General or at State level by
the Governor. As it was prior to federation, each State has its own Constitution and can make its
own laws providing those laws are for the “peace, order and good government” of the respective