The Christian Foundations of Australia

36 M.J. Detmold's book The Australian Commonwealth, 1985, ch. 4. 37 Wood: op. cit., p. 258.


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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