1. Introduction

a. History and background

Australia was first settled by Europeans on 26 January 1788, when the United Kingdom of Great Britain’s government established a penal colony at Sydney under the administration of Captain Arthur Phillip RN, later to become Governor Phillip of the colony of New South Wales.

On 9 July 1900, the United Kingdom Parliament enacted the Australian Constitution, approved by electors in each of the then Australian colonies. On 1 January 1901, the Australian nation was born.

The currency is the Australian dollar (AUD).

b. Legal system

Australia is a federation of six states and two federal territories. It is similar in a political sense to the Dominion of Canada, but because the Australian Constitution is based on the US Constitution, it is called a commonwealth. This federation is based on the US constitutional model and the US concept of a division of powers – executive, legislative and judicial – but it adopts the Westminster system of executive government. This system provides for the political party having a majority of seats in the House of Representatives to form and conduct the executive government.

The Australian Constitution gives the Australian Parliament legislative authority over only specified areas of power to the exclusion of the states. In respect of all other powers and areas of human conduct, the states have residual legislative powers. Among legislative powers left with the states is the creation and administration of trusts and deceased estates. One must look at the statute law in all six Australian states and its two territories in order to ascertain the law regulating the creation and administration of trusts and deceased estates. The Commonwealth Parliament is now the sole source of legislation over income taxation.

Like both the US and the UK, Australia has a common law system under which the courts interpret statute law and from time to time develop judge-made law. Statute laws are paramount. The common law of trusts and probate in Australia is based on English principles of trust law.

Editorial board
Christopher Bevan TEP
Wentworth Chambers, Sydney, Australia
Dr John de Groot TEP
De Groots Wills & Estate Lawyers, Brisbane, Australia
Bradley Jones TEP
Wentworth Chambers, Sydney, Australia
David Marks TEP
Inns of Court, Brisbane, Australia
Michael Perkins TEP
Diamond Conway, Sydney, Australia
Dr Mark Robertson
Wentworth Chambers, Sydney, Australia
David Russell QC TEP
Wentworth Chambers, Sydney, Australia
Rashelle Seiden TEP
Wentworth Chambers, Sydney, Australia
Mr Justice Peter Young AO
Supreme Court, Sydney, Australia


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