The Journey

Loose connections is a leisurely ramble through the vellum and parchment pages of Tasmanian legislation, along with case law. It is always open to wandering off into the tangled undergrowth of all things Tasmanian.

There is an eventual destination: overseeing the transfer of the official copies of Tasmanian legislation from 1833 to 2013 to the Tasmanian Archives and Heritage Office. Along the way we will meet a motley crew from all walks of life – judges, legislators, officials, farmers, shopkeepers, mariners, free settlers, convicts and the first peoples of this island state. I hope you will enjoy the journey, even if you only pop in for brief catch-ups along the track

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VDL Statutes 1830 already in TAHO collection

A search in Enrolments of Acts of Council (Series SC202) at the Tasmanian Archives and Heritage Office has identified 14 original copies of VDL Statutes for the year 1830 that have already been transferred to TAHO:

SC202/1/1 – 10 Geo IV No 1 An Act to remove Doubts as to the Validity of Acts or Ordinances in force on the Twenty-eighth day of February One thousand eight hundred and twenty-nine;

SC202/1/5 – 10 Geo IV No 2 An Act to institute Courts or General and Quarter Sessions, and to extend the Authority thereof and of Justices of the Peace in certain Cases;

SC202/1/6 – 10 Geo IV No 3 An Act to institute Courts of Requests;

SC202/1/7 – 10 Geo IV No 4 An Act to regulate the Slaughtering of Sheep and Cattle;

SC202/1/8 – 10 Geo IV No 6 An Act to extend to this Colony certain Acts of Parliament, whereby pecuniary Penalties are inflicted, which are made applicable to some local Purpose, and to facilitate Proceedings of Justices of the Peace in such cases;

SC202/1/9 – 10 Geo IV No 7 An Act for the Institution of Houses of Correction, and for other Purposes relating thereto;

SC202/1/10 – 10 Geo IV No 8 An Act for amending the Laws to prevent the harbouring of Felons or other Offenders, and to restrain their tippling and gambling;

SC202/1/11 – 10 Geo IV No 9 An Act to simplify Proceedings at Law or in Equity, by or against the Directors and Company of the Bank of Van Diemen’s Land;

SC202/1/12 – 10 Geo IV No 11 An Act for establishing Regulations to restrain the Increase of Dogs;

SC202/1/13 – 11 Geo IV No 1 An Act to simplify Proceedings at Law or in Equity, by or against the Directors and Company of the Cornish Bank;

SC202/1/14 – 11 Geo IV No 2 An Act to facilitate the apprehension of felons and other offenders illegally at large;

SC202/1 11 Geo IV No 3 An Act to Regulate then Impounding of Animals for Trespass and for other purposes relating thereto;

SC202/1/15 – 11 Geo IV No 6 An Act to prevent doubts as to the application of the Statutes of Usury;

SC202/1/16 – 11 Geo IV No 7 An Act to provide for the summary discharge in certain cases of persons under committal for Felony and Misdemeanour;

SC202/1/17 – 11 Geo IV No 9 An Act to facilitate the prosecution of Servants for larceny and embezzlement and of persons aiding the escape of felons or offenders under sentence of transportation.

The Description Fields in the records for all these Acts simply say: “No Description Available” which makes searching for specific Acts a time-consuming, and on-going, exercise. The coverage for Enrolments of Acts of Council Series SC202/1 is from 1 January 1830 to 31 December 1851.

Original copies of the following 1830 Acts have not, as yet, been found:

10 Geo IV No 5 An Act extending “An Act for the Relief of His Majesty’s Roman Catholic Subjects” to Van Diemen’s Land;

10 Geo IV No 10 An Act to simplify Proceedings at Law or in Equity, by or against the Directors an Company of the Derwent Bank (Private Act);

11 Geo IV No 4 An Act for the Relief of Certain Insolvent Debtors;

11 Geo IV No 5 An Act to Regulate the Constitution of Juries;

11 Geo IV No 8 An Act for the Regulation of Courts of General Quarter Sessions.


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Statutes for the years 1832-1836

In 1832 Lieutenant Governor Arthur was finally able to begin sorting out problems relating to land grants in the Colony. Alfred Stephen had first questioned the validity of land titles in 1828 pointing out that all grants in New South Wales and Van Diemen’s Land had not been made in proper form (being in the name of the governors rather than in the name of the sovereign) and further research showed extensive land jobbery and wilful violations of conditions of grants. In January 1832 Arthur finally received a Royal Warrant from London giving him authority to begin the process of investigating all contested land grants, and on 31 January 1832 he published an Executive Act in the Gazette setting out the proposed arrangements for fixing grants or instruments of title, which provided that:

A new grant or lease will, upon application through the Surveyor General be immediately issued in the proper form without charge of any kind except for five shillings being the sum fixed by the King’s instructions for enrolment. (A copy of this Proclamation is available at the Tasmanian Archives at CS055/1/22 in the 1832 volume of Proclamations, Government Orders and Notices, issued by His Excellency, Colonel George Arthur, Lieutenant Governor of Van Diemen’s Land).

Arthur announced the establishment of a Land Board whose function was to examine claims to Crown grants, including claims by persons who titles were defective. The Board, consisting of the Surveyor-General, George Frankland, and the Superintendent of Government Stock at Ross, James Simpson, was kept busy hearing claims until it was superseded by the Commission of Claims (soon to be referred to as the Caveat Board), established by an Act passed by the Legislative Council on 16 October 1835 (6 Will IV No 11). Arthur appears to have been persuaded that the Land Board did not have enough powers to sort out all the disputed claims. While the new Commission was authorised to take over the Board’s unfinished business, previous decisions of the Board remained valid.

Although the prevailing opinion at this time was that government activities in the public arena should be kept to a minimum Arthur recognised that the postal service was a recognised sphere of public business and in 1832, he set about taking over the existing privately-operated enterprise. By 1834 he had completed the reorganisation of the business, culminating in the Legislative Council passing An Act To Amend And Consolidate The Laws Providing For The Conveyance And Postage Of Letters (4 Will IV, No 18). An article by K A Green “Lieutenant Governor Arthur and the Establishment of the Post Office THRA provides more details on this.

The extent of other public works in the colony was largely confined to what could be achieved with convict labour: wharves, causeways, churches, gaols, hospitals, roads and bridges. Arthur also believed in the importance of clean and impressive buildings. In 1833 he was able to get the Legislative Council to pass a comprehensive Police Act (4 Will IV No 11), based on the provisions of English local statutes, which allowed prosecution of an extensive range of offences designed to make life more comfortable for the citizens of Hobart. It took another two years for the Legislative Council to pass the Water Act (5 Will IV No 14) which aimed to overcome the hygiene problems of contaminated water supplies. The importance of well-run markets was dealt with in 1834 (5 Will IV No 9), and in the same year an Act (5 Will IV No 6) dealing with fencing, and sheep, cattle and horse stealing was passed to assist graziers and large landowners.

During his 12 years as Lieutenant Governor in Van Diemen, Arthur and the Legislative Council passed a wide range of legislation required to effectively govern a colony gradually moving from a largely penal institution with a focus on convict discipline towards a more representative governing body addressing the needs and concerns of free settlers. In addition to the laws referred to above, legislation relating to the press, juries, debtors, commercial and maritime matters, courts and revenue collection all became part of the legal framework of the Colony. Following his recall to the UK Arthur embarked from Hobart on 30 August 1836, leaving the colony in the hands of Lieutenant Colonel Keith Snodgrass until the arrival of Sir John Franklin, the newly appointed Lieutenant Governor, in early January 1837.

For a detailed account of Arthur’s time in Van Diemen’s Land Sir George Arthur, Bart 1794-1854 by A G L Shaw provides a comprehensive account of his time in Van Diemen’s Land from 1824 to 1836. It paints a picture of life in a remote colony on the other side of the world, in another hemisphere, with communications taking up to four months each way (all handwritten on vellum or first class foolscap paper).

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Missing Acts

The Acts Custody Act 1858, passed some three years after the name change for the Colony of Van Diemen’s Land to Tasmania, made provision for the custody of all the Acts of the Legislature of Tasmania. Section 1 of the Act provided that persons having custody of Acts from 1826 to the commencement of the 1858 Act should transmit the same to the Supreme Court where they were to be kept in the records of the Court. The Acts Custody Act went on, in section 2, to stipulate that the Act itself, and all subsequent Acts, were required, within seven days of receiving Royal Assent, or of promulgation of reserved assent, to be transmitted by the Clerk of the Legislative Council to the Supreme Court to be kept within the records of the Court. This legislation made the Supreme Court the custodian of all the official copies of the old Legislative Council Acts as well as those of the new bi-cameral Parliament.

By 2008 It became clear that the Court had neither the space nor the staff to continue to care for these unique documents. Chief Justice Ewan Crawford began discussions with the Department of Premier and Cabinet about legislating to make the Tasmanian Archives and Heritage Office the custodian of all the official copies of Tasmania’s legislation and in mid-2013 the Legislation Publication Act 1996, section 6 was amended to allow the Clerk of the Legislative Council to send all future official copies of the Acts directly to Archives, and for the Court to begin the task of preparing its collection for transfer. A small team of volunteers has been working on this task since 2014, with the end in sight in the first half of 2020.

The Supreme Court of Tasmania currently holds the official copies of the Van Diemen’s Land Legislative Council Acts from 1833-1851, the Colony of Tasmania Acts from 1852-1901, and the State of Tasmania Acts from 1901 to mid-2013. This raises the question: where are the original copies of the Acts from 1826-1832?

From 1 August 1826 to 20 January 1830 (7 Geo IV No 1 – 10 Geo IV No 11) a total of 26 Acts were passed by the Legislative Council. These 26 Acts were gathered together under the heading Copies of the Laws and Ordinances passed by the Governor and Council of the Colony of Van Diemen’s Land 1826-1830 and after being presented to the UK Parliament (as required by UK Act 9 Geo IV, c 83, section 29) they were ordered, by the House of Commons, to be printed on 11 March 1931.

A copy of this publication is available in both the National Library of Australia and the State Library of Tasmania. However this publication is part of the UK parliamentary papers series, not the records of the Supreme Court of Tasmania.

An ongoing search of the Tasmanian Archives series Enrolments of Acts of Council has so far located nine handwritten official copies of the 26 Acts identified in the above paragraph. Seventeen more to go!

From 20 March 1830 to 24 April 1830 (11 Geo IV No 1 – 11 Geo IV No 11) nine more Acts were passed by the Legislative Council. These do not appear to have been presented to the UK Parliament, but six more handwritten official copies for this period have been found in the Enrolment of Acts of Council series at Tasmanian Archives, bringing the number of Acts to be found up to 15.

There was only one Act passed in 1831, An Act for the Effectual Administration of Justice in the Supreme Court of Van Diemen’s Land (2 Will IV No 1) and no official handwritten copy has yet been located. No Acts were made by the Legislative Council in either 1829 or 1832.

Final score: 21 missing out of 11,190 Acts, but the search continues.

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Original copies 1826-1851

The first step towards an independent law-making governing body for Van Diemen’s Land was the separation of the Island dependency from the Colony of New South Wales. On 17 July 1825 King George IV had signed a warrant (issued under the power of the Order-in-Council dated 14 June 1825) constituting a single chamber parliament, a Legislative Council, for Van Diemen’s Land. The Order-in-Council was proclaimed at Hobart Town on 3 December 1825 by Governor Darling on a short stop over on his way to take up his position as Governor of New South Wales. Darling also proclaimed the Island’s administrative independence from New South Wales, as outlined in the New South Wales Act, 1823, section 44. The original copy of the Order-in-Council separating Van Diemen’s Land from New South Wales is listed as an “unfound document” on the Documenting a Democracy website.

The Council, consisting of the Lieutenant Governor and six members chosen by him, met for the first time on 12 April 1826 and the first Act of the new Colony which was passed on 1 August 1826 dealt with the summary punishment of disorderly conduct in female offenders. Vive la égalité!

The original copies of the legislation produced by the first independent governing body of Van Diemen’s Land – the Executive Council – were handwritten on vellum sheets of varying sizes, except for Acts dealing with the finances of the Colony.

For the most part the vellum sheets appear to have been hand cut and have been folded for storage purposes. The dimensions of the sheets vary slightly but an average measurement would be around 57cm x 63cm. The thickness of the vellum sheets varies from being quite thin (easily unfolded) to thick (requiring weights to hold the pages down).

Example of thin vellum used for single page Act, showing fold marks.

Example of thick vellum sheets folded for storage.

Acts for the appropriation of revenue for the Colony are written on paper sheets measuring 23cm x 28cm. I have been unable to find an official reason for this but, looking at the layout of these financial Acts, I suspect it was quite likely that using large sized vellum sheets to record long lists of financial information would have been more difficult to set out clearly that they would be on the smaller paper sheets.

The Supreme Court of Tasmania currently holds the original handwritten copies of the Van Diemen’s Land Legislative Council Acts from 1833 to 1851 (which are part of the collection to be transferred to the Tasmanian Archives and Heritage Office, under the terms of the Legislation Publication Amendment Act, 2013, section 6). Investigations into the whereabouts of the official copies of VDL legislation for the years 1826-1832 will be published in a separate Post.

Details of the Acts currently held by the Supreme Court have been recorded on a spreadsheet to accompany the Acts when they are transferred to Archives. An additional document has also been prepared listing the condition of each Act for:

  • Any damage to wax seals;
  • Type of fasteners used to keep multi page documents together;
  • Mottling on vellum sheets;
  • Crumpling, creasing and tears on folds on vellum sheets;
  • Mould; and
  • Durability of ink.

Conservators from The Tasmanian Archives and Heritage Office have provided valuable assistance to the volunteers working on the Project in the Supreme Court about suitable folders and boxes for individual Acts, as well as advice on the handling of damaged items.

They have visited the Court to check firsthand on possible mould and insect damage to the handwritten copies of the Acts. No evidence of insect activity was identified and much of the mould is slight to moderate, dry and therefore dormant.

Open four flap folder with Act in position for flaps to completely enclose the document.

It was decided that these Acts would remain in their current finished storage folders and boxes as they are well-protected in four flap folders inside archival clamshell boxes in a cool and dry storage room.

All archive boxes containing any Acts for the period 1833-1851 that have been identified as being mould-affected have been clearly marked to ensure Archives staff are aware of the existence of even minimal traces of mould when the boxes are transferred.

The Conservators also checked twelve handwritten Acts where the ink appeared to be fading. It was suggested that the “fading” was probably due to some inherent chemical instability in the iron gall ink used by the scribes responsible for copying the text of the Acts on to the vellum sheets, possibly combined with poor storage at some earlier stage. As there is some doubt about the effectiveness and long-term safety of current conservation treatments it was recommended that limited handling of the documents and storage in a stable environment would be a sufficient solution for the time being.

However it was also recommended that, when the Acts are transferred to Archives, the documents should be digitised in their current state just in case there is further deterioration causing the ink to continue to lighten. As the folded velum sheets present particular problems for handling and flattening in preparation for digitisation, it was felt that this task be undertaken in house in the Government Archives and Preservation section. A list of the twelve Acts has been created and boxes containing Acts with ink problems have been marked so Archives staff can easily identify where the documents are located.

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Statutes for the years 1826-1831

From 1803 to 1825 Van Diemen’s Land was a dependency of the Colony of New South Wales. A succession of Lieutenant Governors and Commandants used General and Garrison Orders to maintain law and order at a local level. Local Justices of the Peace dealt with petty crimes as required, with the usual punishment being a specified number of lashes for offenders. Serious criminal matters were supposed to be dealt with in the courts in Sydney but the expense and inconvenience of often hazardous sea voyages meant that local magistrates also dealt with matters not officially in their jurisdiction. Governors in New South Wales generally turned a blind eye to this behaviour. It was a similar case with civil cases with free settlers often deciding it was not worth seeking justice for their complaints.

The Report on the Judicial Establishments of New South Wales and Van Diemen’s Land by Thomas Bigge in 1823 was severely critical of the administration of justice in both New South Wales and Van Diemen’s Land. Its recommendations contributed to the UK Parliament passing an Act for the Administration of Justice in New South Wales and Van Diemen’s Land in October 1823. Under this Act (short title: The New South Wales 1823) a Supreme Court was to be set up in Van Diemen’s Land and in addition, by an Order-in-Council, Van Diemen’s Land was to become a separate Colony.

The paperwork for the creation of the first Supreme Court in Van Diemen’s Land was put in place relatively quickly, considering the inevitable time lag caused by the lengthy sea voyage from London to Hobart. In March 1824, the newly appointed Chief Justice, John Lewes Pedder, arrived with the Charter of Justice establishing the new Supreme Court, which was opened for business in Hobart on 10 May 1824.

Separation from New South Wales would not happen for another 19 months. Despite a Memorial to the Secretary of State, Lord Bathurst, from a number of prominent VDL citizens in August 1823, advocating separation from New South Wales, as well as Lieutenant Governor Arthur, soon after his arrival in May 1824, arguing for separation commercially, legally, executively, legislatively and administratively, there was no rush by the UK Parliament to carry out the provisions of section 44 of the 1823 Act, which provided that the King could constitute and erect:

The Island of Van Diemen’s Land and any islands, territories, or places adjacent, into a separate colony, independent of the Government of New South Wales.

It was not until 17 July 1825 that George IV signed the Warrant drawn up on 14 June 1825, that created a single chamber parliament, the Legislative Council, with not more than seven and no less than five members. It was then more than four months before Governor Darling on his way to take up the position of Governor of the Colony of New South Wales, arrived in Hobart to proclaim the official separation on 3 December 1825. The first meeting of the Council was on 12 April 1826.

The first three years of the operations of the Legislative Council are notable for the power that was able to be exerted by the Lieutenant Governor. Meetings of the Council were held in camera, its members sworn to secrecy, and the only publicity of its operations was the promulgation of its final measures in the Gazette. Under section 24 of the 1823 Act, Arthur alone had the right to initiate bills and he only needed the support of one member of the Council to pass the law. Any dissenting members could, however, have their reasons recorded in the Council’s minutes, and Arthur had to record his reasons for passing a law despite the disagreement of a majority of the Council. The only checks on Arthur at this time were the UK Parliament or the Chief Justice of Van Diemen’s Land declaring that an Act was repugnant to the laws of England.

The first official Act of the Council was passed on 1 August 1826 and by 1831 it had enacted a total of 36 Acts – an average of only six Acts per year. In practice Arthur preferred to use General Orders or Executive Acts, where he could, to regulate colonial affairs. This enabled him to avoid the final scrutiny of the Chief Justice or the Colonial Office.

The 1823 Act was not meant to a permanent solution for the better administration of justice in New South Wales and Van Diemen’s Land. The 1828 Imperial Act 9 Geo IV c.83 (in its original form known as the Huskisson Act after the UK Secretary for the Colonies, and later given the short title of Australian Courts Act 1828) re-enacted the principle provisions of the earlier temporary Act and re-modelled and improved the structure of the Supreme Court of Van Diemen’s Land. It increased the membership of the Legislative Council to not more than 15 and no less 10. The former oath of secrecy was abolished, and drafts of proposed legislation had to be published in the Hobart Town Gazette. Members were appointed by the Crown, and any vacancies were to be filled by persons nominated by the Lieutenant Governor. For an Act to be passed it had to have the support of a majority of Council members. The Council was also empowered to appoint civil juries, but this did not happen for several years.

Prior to 1828 the finances of Van Diemen’s Land were quite simple: the Lieutenant Governor could levy taxes which he considered necessary, and essentially the UK Government paid all the Colony’s expenditure. The 1828 Act created three separate departments: civil, military and convict. The latter two were paid for by the UK, and civil was now to be paid out of the Colony’s Treasury. The new Act which came into effect on 25 July 1828 provided that no taxes could be imposed, except for local purposes which were defined in the Act. Between 12 September 1828 and 24 December 1828, out of a total of six Acts passed, five dealt with local taxes: three concerned the sale of liquor, one for the conveyance and postage of letters, and one with licensing newspapers. The Council had lost no time in enacting its own revenue raising legislation.

Section 24 of the 1828 Act (reception section) established that Van Diemen’s Land was a civil colony, despite its continuing function as a penal institution and a strong military presence. A broad body of English law was now accessible to the British subjects in the Colony who saw the Act as strengthening the legal and civil standing of the legislative and judicial institutions, but they continued to agitate for greater participation in governing the Colony.

However Lieutenant Governor Arthur believed it to be his duty to rule Van Diemen’s Land as a convict settlement with an emphasis on prison discipline to control, coerce and, if possible, reform offenders. He had no sympathy with the free settlers who wanted more participation in the political institutions governing the Colony. The UK Government was largely responsible for this friction, since it had encouraged emigration to a settlement ruled by convict law which Arthur was commissioned to administer.

It is not surprising that during the first six years of Arthur’s term as Lieutenant Governor of the Colony and member of the Legislative Council that the primary legislative focus was on convict discipline, local duties to raise revenue and controlling the local press (often hostile to the Governor and his Council). The Legislative Council also had to supervise the Van Diemen’s Land Company land grant on the North-West Coast as well as appointing a commission of three to conduct a general survey of the Colony to sort out a multitude of problems with existing land grants.

From the earliest years of settlement in Van Diemen’s Land Lieutenant Governors made land grants to free settlers, convicts whose sentences were completed, and military personnel. However there was considerable confusion in the loose way the grants were applied, with the Secretary of State and Governors conferring grants in a haphazard fashion, without any defined principle or legal authority.

Prior to 1827 there are few official records of property transactions but in September of that year a Deeds Registry was established “to provide means whereby the title of real property may be more certainly known” (8 Geo IV No 5). The first sales of land by the administration in Van Diemen’s Land began in 1828, and from 1831 there were no more free grants of land.

The Legislative Council also had to cope with the less than vigorous attention to detail displayed at times by the UK government. The 1831 Charter of Justice for the Supreme Court of Van Diemen’s Land omitted to make provision for matters already commenced in the old Court to be continued in the new Court. On 5 September 1831 the Legislative Council remedied this defect by passing An Act for the Effectual Administration of Justice in Van Diemen’s Land (2 Will IV, No 1). This Act has been described as “very necessary but doubtful and dangerous” by A G L Shaw in his biography of Arthur.

The Charter had provided for the appointment of an additional Judge in the Supreme Court. Arthur had been appalled with the character of the proposed new judge, Alexander Macduff Baxter, so the new colonial Act now provided for the Governor to appoint a judge in place of Baxter as well as allowing, in the absence or death of one judge, for the remaining judge to continue the court until a successor could be appointed.




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Imperial legislation relating to the Charters of Justice in 1823 and 1831

An Act for the Administration of Justice in New South Wales and Van Diemen’s Land, 1823 (4 Geo IV c 96) repealed An Act Constituting a Court of Criminal Judicature in New South Wales, 1787 (27 Geo III c 2). It was a temporary Act to provide, until the first day of July 1827 and until the next Session of Parliament, for the better administration of justice in New South Wales and Van Diemen’s Land, and for the more effectual government thereof; and for other purposes relating thereto. It continued in operation until the commencement of An Act to provide for the Administration of Justice in New South Wales and Van Diemen’s Land, 1828 (9 Geo IV c 83).

In 1819 Commissioner Thomas Bigge had been sent from London to investigate the state of the penal Colony of New South Wales and its dependency Van Diemen’s Land. His report was critical of the administration of the Colony and its island dependency, and it led to the UK Parliament making considerable legislative changes to the structure of governance and the administration of justice.

Notable events, provided for under the provisions of the 1823 Act and the Third Charter of Justice, included:

  • creation of a Legislative Council for the Colony of New South Wales which was a first step away from the Colony’s penal status, albeit its members were all appointed by the Secretary of State in London;
  • constitution of Van Diemen’s Land, by an Order in Council, issued on 14 June 1825, and proclaimed to commence on 3 December of that year, as a separate Colony, with its own Legislative Council (seven members), and the cessation of appeals from the Island to the Governor of New South Wales;
  • creation of two new supreme courts, with civil and criminal jurisdiction; one in New South Wales and one in Van Diemen’s Land;
  • the current Supreme Court of Tasmania owes it origin to the 1823 Act, which authorised by warrant a separate Charter of Justice – the first Charter of Justice for Van Diemen’s Land; and
  • the new VDL Supreme Court being able to enrol barristers and solicitors, decide the form and function of legal procedure relating to wills and letters of administration bonds, and appeals to the Privy Council and other functions which previously had to be settled in the NSW Supreme Court.

While the 1823 Act, and associated Charters, went quite some way towards providing a measure of local control of government and administration of justice, free settlers and emancipists remained dissatisfied with the amount of control retained by the UK Parliament.

The 1828 Act was also originally intended to be a temporary measure. It was, however, made permanent in the Colony of New South Wales by the Australian Constitutions Act, 1842. This Act established a 36-member Legislative Council in the Colony, 12 of whom were nominated by the Queen (on the advice of her Ministers), with the remaining 24 members to be elected by eligible voters who owned or occupied property above a specified value.

Many sections of the 1828 Act did little more than reiterate the sections of the 1823 Act that dealt with the powers and functions of the courts in New South Wales and Van Diemen’s Land. It did, however, also include further important changes to the administration of justice in the two colonies, with the main features summarised below:

  • the laws of England current on the precise date the Act came into operation would be applied in both colonies, with section 24 of the Act setting the date of this invisible transfer as 25 July 1828, commonly called Reception Day;
  • English Acts of Parliament passed after Reception Day did not apply unless they were specifically passed for the colonies;
  • appeals from Supreme Court decisions to the Governor were ended (the Governor’s Court was abolished) although appeals to the Privy Council still had to come from the Governor;
  • trial by jury to be available in civil cases, as well as the Governor being empowered to introduce a general trial by jury in criminal matters;
  • section 24 of the Act made it clear that Van Diemen’s Land was a civil colony despite the continuing penal functions and strong military presence in the administration of justice;
  • the Act contemplated the issuing of a new Charter of Justice for Van Diemen’s Land which eventuated and finally arrived in 1831 – court to consist of Chief Justice and Puisne Judge, and also appointment of a Registrar, Master and Keeper of Records and a Sheriff; and
  • the Legislative Council increased to 15 members.

With the proclamation of the Second Charter of Justice for Van Diemen’s Land, it became necessary for a colonial enactment, An Act for the effectual Administration of Justice in the Supreme Court of Van Diemen’s Land, 2 Will IV No 1, to save from invalidity court proceedings and other matters pending under the repealed First Charter of Justice for Van Diemen’s Land.

Copies of Imperial legislation relating to the First and Second Charters of Justice in Van Diemen’s Land can be found in Vol 6 of Tasmanian Statutes 1826-1956.

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Imperial legislation and the 1787 and 1814 Charters of Justice

An Act Constituting a Court of Criminal Judicature in New South Wales, 1787 begins by reciting the provisions of An Act for the effectual transportation of felons and other offenders; and to authorise the removal of prisoners in certain cases, 1784 (24 Geo III c 56, referred to as The Transportation Act). The abridged text of this Act is available in: J M Bennett & A C Castles, A Source Book of Australian legal history : source materials from the eighteenth to the twentieth centuries, 1979:Law Book Co, Sydney, pp 3 – 5.

The Transportation Act authorised His Majesty “to appoint any place or places beyond the seas, either within or without His Majesty’s Dominions to which offenders so sentenced shall be conveyed”. The Colony of New South Wales, which in 1787 included all of the east coast of Australia as well as Van Diemen’s Land, was appointed to be such a place. When Van Diemen’s Land was settled in 1803, it was a dependency of the Colony of New South Wales, and subject to the provisions of the 1787 Act and the accompanying Charter of Justice.

The 1787 Charter (First Charter) contained recitals expressing it to have effect in pursuance of the 1784 Transportation Act and two 1786 Orders in Council, and with regard to the Court of Criminal Jurisdiction, in pursuance of the 1787 Act (27 Geo III c 2). The Court of Civil Jurisdiction, constituted by the Charter, had no statutory foundation but was a creature of the royal prerogative.

One of the major critics of the First Charter was Deputy Judge Advocate Bent. In a letter to Under Secretary Cooke on 7 May 1810 he complains that the Criminal Jurisdiction of the Colony is imperfect in every point of view. He points out that that the greatest defect is the variety of duties the Judge Advocate has to perform:

In the first instance, he is obliged to prepare and examine the evidence for the prosecution … he then has to draw up the indictment, of the legality of which he then has to judge, and it is by him to be exhibited to the court …

He goes on to say that the execution of all these duties “is apt to bias the mind” in carrying out his role as Judge Advocate. Simply put, the court “was very well calculated to answer the purposes for which it was created in the infant state of the colony” but increases in population and trade have made it “very deficient in many respects”.

In response to these and similar views and opinions the House of Commons appointed a Select Committee to inquire into the effectiveness of sentences of transportation and other matters. The 1812 Report of the Committee resulted in significant proposals for reforming the judicature in the colony.

As the changes proposed by the Committee only related to civil courts it was not considered necessary to create any legislation to carry them out. Rather they were the subject of letters patent, now known as the Second Charter of Justice.

While the provisions of the second Charter proved beneficial to the courts in Sydney, they did very little to improve the administration of justice in Van Diemen’s Land. Judge Advocate Bent, in a letter to Lord Bathurst in October 1814, pointed out that while the establishment of the Lieutenant Governor’s Court did provide some relief, the lack of a Court of Criminal Jurisdiction and a Court of Civil Jurisdiction, with sufficiently extensive powers, was deplorable.

Judge Advocate Wylde, in a letter to Under Secretary Goulbourn on 31 March 1817 felt it his duty to point out the Charter, in regard to the jurisdiction of the Supreme Court (based in Sydney) would soon be found to be altogether insufficient for the inhabitants of Van Diemen’s Land due to delays, heavy expenses, personal inconveniences and losses, and communication difficulties that were incurred when having to travel to Sydney to have their cases heard.

From 1819 to 1823 Chief Justice Barron Field and Judge Advocate Wylde both made two visits to Hobart to hear civil and criminal matters but this was never going to be a successful solution for the Island dependency.

In his 1823 Report on the Judicial Establishments of New South Wales and Van Diemen’s Land, Commissioner Thomas Bigge clearly spelled out the problem, and proposed solution:

The evils, however, arising to the settlement from the unchecked commission of crime, and from the extensive schemes of plunder in which the remitted convicts and those whose terms of service had expired were thus tempted to engage, together with the temptation to personal redress of civil injuries that is held out to the free inhabitants, as well as strangers, from the distance and long absence of any controlling judicial authority, I consider to be very clearly established; and as these evils admit of very partial and insufficient correction from the occasional and annual circuit of the judges … I have no difficulty in recommending to your Lordship the early establishment of a separate civil and criminal judicature in Van Diemen’s Land, as a measure essential to its tranquillity and to the prosperity of its inhabitants.

It was time for a new Act and a new Charter.

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