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
Two hundred years ago, on 19 July 1823, the British Parliament passed Imperial Act 4 Geo IV, c.96, titled Administration of Justice in New South Wales and Van Diemen’s Land but generally referred to by its short title New South Wales Act 1823. While the Act provided for the eventual administrative separation of the settlements in Van Diemen’s Land from New South Wales, the immediate focus was on setting up a permanent Supreme Court in Van in Diemen’s Land as recommended in the Second Report of Royal Commissioner, John Thomas Bigge, titled The Judicial Establishments of NSW and Van Diemen’s Land.
Over the next ten months I will be publishing a series of posts outlining the justification for erecting a superior court in Van Diemen’s Land, as well as reporting on significant dates during the period 19 July 1823 to 10 May 1824.
What is the significance of 10 May 1824? The Supreme Court of Van Diemen’s Land (now Tasmania) first opened its doors on this date, making it the oldest Supreme Court in Australia, predating the opening of the Supreme Court of New South Wales by 10 days. On 10 May 2023 it will celebrate its 200th anniversary in providing an independent judicial system for the Island State.
The next post will look at the history behind the Imperial Act 4 Geo IV, c.96.
In 1819 Thomas Bigge had been sent to New South Wales by Lord Bathurst to examine the effectiveness of transportation as a deterrent to felons. He was to investigate all aspects of the operation of the Colony, including the judicial system. Bigge spent 18 months gathering evidence in the Colony and on returning to England in 1821 wrote three Reports which were presented to Parliament. The second report, The Judicial Establishments of New South Wales and of Van Diemen’s Land, was published on 21 February 1823.
Its recommendations were largely responsible for the drafting of Imperial Act 4 Geo IV c96 (New South Wales Act 1823) which made provision for Van Diemen’s Land to become a separate colony and empowered His Majesty, as a temporary measure, to institute a court of judicature in Van Diemen’s Land. Royal Letters Patent were issued under an Imperial Warrant on 13 October 1823, less than eight months after the publication of Bigge’s second report. A sunset clause was included in the Act setting out its expiry date:
And be it further enacted that this act shall be and continue in force until the first day of July in the year of our Lord one thousand eight hundred and twenty seven and from thence until the end of the next session of parliament.
The requirement for a new Act and Charter to replace the 1823 Act in 1828 was likely an acknowledgement that not everything in the legislation would be perfect. An example of a defect in the 1823 Act occurred in 1827 when it was revealed that some of common law jurisdiction of the Lord Chancellor had not been invested in the Supreme Court. Other problems included lack of clarity in procedural matters, judicial errors in applying appropriate Imperial legislation, uncertainty about when local legislation was appropriate, and the extra workload of the Chief Justice being involved in Legislative and Executive Council matters, which also had the potential to create a conflict of interest.
The Huskisson Act 1828 (so named after the Secretary of State for War and the Colonies, William Huskisson – now known as the Australia Courts Act 1828) commenced on 25 July of that year, repealing the New South Wales Act 1823 and enacting legislation of the British Parliament which ensured that the laws of England would be applied in the two existing Australian colonies, New South Wales and Van Diemen’s Land. Importantly it strengthened the independence of the judicial process with the ending of appeals to the governors of both colonies against Supreme Court decisions, although the right of appeal to the Privy Council remained.
The 1828 Act followed the English convention of naming some Acts after the responsible Minister. This was a convenient shorthand particularly when you consider the long title of this Act:
“An act to provide until the first day of July one thousand eight hundred and twenty seven and until the end of 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”
In the case of Van Diemen’s Land the repeal of the 1823 legislation meant that a new Charter was required to authorise the opening of a new Supreme Court. The Charter did not arrive in Hobart until 1831, and a further complication was the death of King George IV on 26 June 1830. The following day the UK Secretary of State issued a circular, enclosing instructions for the issue of a proclamation to continue all persons in such office at the time of the Monarch’s death. This was in accord with the Imperial Act the Demise of the Crown Act 1702 which laid down that all official office-holders stayed in office for six months, provided they swore oaths of allegiance to the new Monarch.
The Act also dealt with the effect the death of the Monarch would have on court actions. It provided that all courts, judicial commissions, and court actions continued under the new Monarch. Communication of this news to the colonies could not be instant. The long sea voyage often took many months and in Van Diemen’s Land the Hobart Town Gazette on 18 December 1830 was still referring to George IV as the Monarch. It is only with the publication of the next Gazette on 25 December that a Proclamation by the King (now William) revealed the death of George IV. The Gazette also included two further proclamations: all Persons to continue in their respective Offices, as well as Letters Patent with Great Seal.
Arthur had been advised by his Crown Law Officers that the Commissions of the Lieutenant-Governor and the Chief Justice would expire six months after the King’s death; the Chief Justice and the Attorney General agreed that the British proclamation could have no effect in prolonging the office of the holders of Royal Commissions beyond that time. After much consultation it was decided that the Lieutenant-Governor should issue a new Commission of the Peace, a new Commission to the Attorney General and other officers required to exercise authority. While the Law Officers professed doubt about the propriety of these proceedings, the Chief Justice was satisfied that public business could proceed.
All were agreed that it would be necessary to enact legislation to indemnify the Lieutenant Governor, the Chief Justice, the Attorney-General, the Sheriff and the Magistrates for all acts performed after the end of six months, and that the period should be extended to twelve months. Not only did the Supreme Court need a new Charter, but the Warrant for the Legislative Council would have to be renewed. As it turned out The Secretary of State had already forwarded an Act, The Colonial Offices Act 1830 to render valid acts done by the Governors of colonies since the decease of the Crown, and to extend the life of Commissions to eighteen months after such decease. But this was not received until May 1831, five months after the expiration of the six months extension.
Later, Arthur was to reveal the Government’s anxiety about these events admitting there was neither Law, Government nor Judge and no provision for the administration of Justices or for the conduct of the Government.
As it was essential that a semblance of government should be preserved, the Lieutenant-Governor continued to act, and the Supreme Court sat for civil business, hoping that any actions would subsequently be sanctioned. It was particularly important that there be no public suspicion arising from the lack of criminal sittings for had it been known “by the Convicts and the lower orders” that the Government and the Supreme Court were not in legal existence, “the most distressing consequences might have resulted”.
When the new Charter finally arrived in May 1831, the 19th century historian John West assesses it as demonstrating the Secretary of State’s usual failure to factor in potential problems or risks: it nominated Mr. Pedder as Chief Justice, and Alexander Macduff Baxter, as first puisne judge. It made no provision for continuing process begun in the previous court and required colonial legislation to cure the defects of its details.
Baxter is an example of the imperial and colonial solutions to dealing with problem people: appoint them to a reasonably paid vacant position, as far away as possible, and send them on their way. He arrived in New South Wales in 1827 to take up the position of Attorney General. With virtually no idea of how to carry out his duties, his relations with Governor Darling quickly soured. His domestic affairs were volatile and, at times, violent: his wife is generally described as insane and he was said to be intemperate. Darling frequently complained about him to the English authorities and must have been relieved to see him appointed as a puisne judge in the new Supreme Court in Van Diemen’s Land. Just before Baxter left Sydney for Van Diemen’s Land, he was bound over to keep the peace, and was declared insolvent.
On his arrival in Hobart, Arthur “found him in a high state of neurotic excitement and such an habitual sot that it would have been a violation of all public decency to have suffered him to take his seat on the Bench”. As the Royal Warrant for Baxter’s induction had not reached the colony at that time, Arthur was able to postpone his installation, but in doing so he left the Colony without a functioning Supreme Court because of the clause in the new Charter requiring the Court to consist of two judges. To remedy this constitutional hiccup, on 5 September 1831, the Legislative Council passed An Act for the Effectual Administration of Justice in the Supreme Court of Van Diemen’s Land (2 Wlll IV, No 1). Although this Act was held by lawyers to be “doubtful and dangerous” because it expunged the clause in the Imperial Charter requiring two judges, the Council had power to repeal or annul a Patent until the pleasure of the Crown was known. The Act was finally approved, but the delay in receiving the approval meant no more legislation was introduced until 1833.
When Baxter’s credentials arrived in the Colony, he presented them to Arthur, along with a request for an advance of salary and leave to return to England to recoup his health and challenge charges made against him by Governor Darling. Arthur jumped at the chance to be rid of him, even loaning him £400. Not long after Baxter’s return to London he was imprisoned for over a year in Marshalsea Prison for debt. He died in 1836.
May 1824 was a significant month in the evolution of the administration of justice in Van Diemen’s Land. After 20 years of being a dependency of the colony of New South Wales, the first step towards independence was about to happen with the opening of a Supreme Court in Hobart that could hear both civil and criminal matters.
Hibernia – ship that brought passengers and convicts to Van Diemen’s Land
John Lewis Pedder had been appointed Chief Justice of the new Supreme Court on 18 August 1823. He arrived in Hobart on board the Hibernia, with his wife Maria, on 15 March 1824. Also on board was the new Attorney General, Joseph Tice Gellibrand. When the ship was first sighted, there was much excitement as it was though the new Lieutenant Governor, Colonel George Arthur, was aboard but shipping difficulties were to delay his arrival until mid-May. When the Pedders disembarked the following day, they were greeted with a 13-gun salute fired from the Mulgrave Battery. It was not the most impressive fortification to protect the citizens of Hobart; in fact it was described by a colonist as a “pitiful mud fort with half a dozen honeycombed guns perfectly harmless to the artillery men who fire them and serving only to make a noise on the King’s birthday and on one or two other public occasions“. Clearly the new Chief was deemed worthy of this recognition. When the noise had subsided he then made the trip to Government House to present his credentials to Lieutenant Governor Sorrel, which included all the necessary authority to open the new court, including the Royal Charter of Justice.
Mulgrave Battery with accompanying Signal Station
The Royal Charter of Justice was read in the marketplace in Hobart Town on 7 May 1824. Three days later, the Charter was read out at the first sitting of the new court, and the oath of office was administered to Attorney-General, Joseph Gellibrand and to William Sorell, first Registrar of the Supreme Court. In his opening address, Chief Justice John Pedder acknowledged some of the problems that had beset the administration of criminal justice in Van Diemen’s Land, and hoped these would now be overcome. At this time, he would have been unaware of the problems that were to confront him in his first few years on the bench.
The first defendant to be tried before the new Supreme Court was William Tibbs, who had arrived in the colony just a few months previously. He was charged with having shot and killed a ‘black man’ named John Jackson on 17 January 1824. An account of the trial R v Tibbs also includes an address by the Attorney General to the Court. The trial has often been referred to the first in any Australian Supreme Court where a white man was convicted of the manslaughter of an Aboriginal. However recent research identifies the ‘black man’ shot by William Tibbs in 1824 as an American man of colour. See Chapter 7 of Constructing a Colonial Chief Justice: John Lewis Pedder in Van Diemen’s Land, 1824-1854 for details of how the identity of John Jackson was established.
In 1826 a case involving two aboriginal defendants on trial for murder (R v Jack and Dick) raised questions about the imposition of English law, particularly capital punishment, on aboriginals. However, it made no difference to the outcome – the imposition of the death penalty.
There are no official Law Reports for any of the cases that were heard in the Van Diemen’s Land Supreme Court. However, newspaper reports for the years 1824-1843 are available at Decisions of the nineteenth Century Tasmanian Superior Courts. There are 28 Reports for 1824, 18 in 1825, 19 in 1826, 14 in 1827 and only three in 1828. The Hobart Town Courier, 2 February 1828, noted that few civil matters now reached the Supreme Court by comparison with a few years earlier, with arbitration often being used as it was less expensive. Criminal cases were very briefly reported in some newspapers: Colonial Advocate, 1 April 1828; Hobart Town Courier, 19 July 1828; and particularly the Tasmanian, which often published very short reports of criminal cases. In most instances, these criminal reports merely state the name of the defendant, the charge and the verdict. In 1828, neither the Hobart Town Gazette nor the Colonial Times published any law reports.
Sketch of face of Alexander Pearce after his death
Alexander Pearce was the first confessed cannibal to be sentenced for murder in the new Supreme Court. On 21 June 1824 he was found guilty of murder and hanged on 19 July, with the Chief Justice ordering that his body be handed over to surgeons for dissection. R. v. Pearce [1824] details his criminal history in Van Diemen’s Land, his trial and sentence.
His skull was later sold to an American phrenologist, Dr Samuel George Morton and is now on display in the University of Pennsylvania’s Museum.
The cases of R. v. McCabe [1825] and R v Jeffries and Others [1826]highlight the dangers that gangs of bushrangers posed to the community, and the sentences imposed by the Supreme Court when they were captured and put on trial. R. v. Farquharson and Webster [1826] is notable for the number of executions recorded on one day when his Honour the Chief Justice Pedder came into Court at 11 o’Clock on 2 September for the melancholy purpose of passing sentence on the prisoners who have been convicted at the last Sessions.
Convicts who had escaped from the Macquarie Penal Settlement on the west coast often received a death sentence. For some this was preferable to being returned to Sarah Island in Macquarie Harbour, which had the reputation of being one of the harshest penal settlements in the Australian colonies. At times convicts who were sentenced to be returned would plead to have their sentences changed to the death penalty – see R v. James, Pennel and McGuire [1828]. The Prosecution Project’s report on the Hanging Years shows the number of executions in Van Diemen’s Land peaking at over 50 a year around 1824.
Thomas Lempriere’s sketch of Macquarie Harbour, 1830 (AOT, PH30/1/376)
Pedder had to deal with two important issues during his first few years in office. The first question involved juries: the Act empowering the establishment of the Supreme Courts in New South Wales and Van Diemen’s Land (4 Geo IV c 96) provided for actions at law to be tried by a jury of twelve men if both parties in an application to the presiding judge for such jury. Judicial interpretation in the two colonies differed, with Sir Francis Forbes in R v The Magistrates of Sydney [1824] NSWSupC 20 ruling that free men should be tried by juries of their fellows, but limiting it to Courts of Quarter Sessions. In contrast Pedder’s decision in R v Magistrates of Hobart Town [1825] held that trial by jury could only apply in the Supreme Court. Alex Castles in his article, The Judiciary and Political Questions: The First Australian Experience considers these conflicting opinions in detail.
The second issue related to freedom of the press. This was a topic hotly debated in New South Wales and Van Diemen’s Land. The main combatants in Van Diemen’s Land were Lieutenant Governor George Arthur and emancipist Andrew Bent. The Timeline of Andrew Bent’s Life states that 4 June 1824 was the day “Bent’s Hobart Town Gazette threw off the shackles of official censorship … by sacking the government-appointed editor” Henry Emmett, and appointing his own editor, Evan Henry Thomas. The result was that proofs of the Gazette were no longer sent to the government for approval. While he was free to publish, he was still open to being prosecuted for libel.
From 1825-1828 Bent was prosecuted by the Crown on a regular basis, sometimes successfully but not always. The Timeline mentioned in the previous paragraph provides links to the cases involving Bent. Despite spending three months in gaol and being fined several hundred pounds sterling he still managed to keep publishing. In 1827 Arthur thought he had finally got the upper hand when the Legislative Council passed an Act imposing duties on Newspapers and Licences to Publish 8 Geo IV, No 3. By refusing to grant Bent a licence he effectively gagged him. While this ploy was initially successful, it was only a temporary victory as the Act was disallowed by the British government in 1828.
The passage of the 1827 Act through the Legislative Council highlights a dilemma for the Chief Justice at this stage of his career. Pedder was a member of the Legislative Council as well as being the only judge on the Supreme Court. Thus, he was a party to passing the legislation in the Council, which was then sent to the Supreme Court to be certified by the Chief Justice that it was not repugnant to the laws of England. When the Act was disallowed, it would have reflected on his ability to be truly independent in his role as Chief Justice.
Unlike his counterpart in Sydney, Sir Francis Forbes, Pedder had no previous experience as a judge. This probably contributed to his reputation for vacillation as he agonised over minute details about points of law and court procedure. Squabbling legal officers did not help either as demonstrated by In re Gellibrand [1825].
By 1828 Pedder must have been looking forward to new UK legislation that would confirm the appointment of a second judge for the VDL Supreme Court. As well as being Chief Justice, he was also a member of both the Legislative Council and the Executive Council, making for a very heavy workload. If he had expectations of a swift outcome then he was to be disappointed, with a second judge not taking his place on the bench until 1833. The next post will focus on the period from 25 July 1828 (often referred to as Reception Day because all English law on that day would automatically apply to Van Diemen’s Land) to 3 February 1833 (Algernon Montagu becomes second judge).
From the early 1600s to 1782 Britain was able to send criminals to its colonies in America. However, the War of Independence put an end to that arrangement and the Government found itself in need of an alternative destination to relieve overcrowding in its prisons. After considering locations in Africa (not far enough away) it turned its attention to New South Wales in the southern hemisphere, where it would be almost impossible for convicts to escape and return home.
It was necessary for any penal colony to have a basic legal system, able to administer British laws. January 1788 saw the first permanent European settlement in New South Wales. When Captain Arthur Phillip, Commander of the First Fleet, landed at Botany Bay, and then sailed up the coast to Port Jackson (considered to be much better site) his authority to claim the whole of the east coast of the continent was set out in an Imperial Act of Parliament (27 Geo III, c2). This included the power of the Governor or Lieutenant Governor of the Colony to convene a Court of Judicature for the trial of offenders. In addition, the King also issued his warrant for a Charter of Justice which allowed for the appointment of Governors and Lieutenant Governors as justices of the peace within all settlements.
The second permanent European settlement, under the command of Lieutenant John Bowen, was in Van Diemen’s Land at Risdon Cove. Governor King had decided there needed to be a permanent British presence in Van Diemen’s Land to deter any aspirations the French expeditions, currently in the area, might have to claiming the Island. While not openly acknowledged, it would also be a convenient destination to which some of the most troublesome convicts in New South Wales could be sent.
It should be noted that this was not the first time Van Diemen’s Land had been claimed by a European country. In 1642 Able Tasman had claimed it for the Netherlands, but no effort had ever been made to follow up the claim by establishing a settlement. See Operation of the First Charter of Justice in Van Diemen’s Land for a more detailed account of the history of the Island prior to 1803.
Bowen arrived in September 1803 with a total of 49 settlers, including convicts, members of the New South Wales Corps and free settlers. There was no way this could be a separate colony; it would remain a dependency of New South Wales for over twenty years, with the administration of the law subject to the jurisdiction of the courts set up in Sydney.
John Bowen’s sketch map of Hobart and the Derwent 1803
The choice of Risdon Cove as the site for Hobart was based on the advice of the explorer George Bass. From a defensive point of view the site had merit but the poor soil and scarce water supply made it unsuitable for a permanent settlement
This arrangement was quickly overtaken in 1804, following the arrival of Colonel David Collins aboard HMS Calcutta. Collins had been commissioned by the British government to be Lieutenant Governor of a new settlement at Port Phillip Bay (in what is now the state of Victoria). Unimpressed by the lack of timber and water Collins sought and received permission from Governor King in New South Wales to relocate to Van Diemen’s land.
Governor King’s approval for Collins to proceed to Van Diemen’s also included a letter of instruction to Bowen to give up the settlement to Collins as the newly appointed Lieutenant Governor of the Island.
After landing at Risdon Cove on 16 February 1804 Collins was told that Bowen was absent, having left his post to take a soldier, charged with aiding convicts to steal stores, to be tried in Port Jackson. This meant that there could be no official handover to Collins until Bowen’s return to the Island. Even when Bowen returned on 10 March the official handover of documents did not happen until 8 May.
Governor King had not been impressed with Bowen’s action, considering it to be too trivial a matter to warrant the Commandant personally accompanying a prisoner to be tried in New South Wales. Collins was also extremely disappointed with the condition of Bowen’s settlement, writing a very unfavourable report on it to Governor King. He quickly decided the settlement should be abandoned and another more suitable site found found. He relocated to Sullivan’s Cove, across the River Derwent, which had a better harbour and was more suitable for a permanent settlement to be called Hobart. These early events were just the beginning of what has been described as a “chaotic legal system” in Van Diemen’s Land.
Sullivan’s Cove, Hobart Town,1804 – UTas ePrints
An additional settlement was set up by Colonel Patterson in the north of the Island at Port Dalrymple. Both Collins and Patterson reported on all civil and military matters to the Governor in Chief in Sydney. They issued Garrison and General Orders to maintain law and order at the local level and relied on a handful of justices of the peace, sitting as single magistrates or a bench of three, who had the same power as their counterparts in England “to keep the peace, arrest, take bail, bind to good behaviour, suppress and punish riots, and to do all other matters and things with respect to the inhabitants” residing in Van Diemen’s Land. Serious criminal and civil matters required all parties to travel to new South Wales for their cases to be heard: often a dangerous and expensive undertaking that the authorities and settlers preferred to avoid if possible. This led to VDL Magistrates often dealing with matters that should have been heard in the Court of Criminal Jurisdiction in Port Jackson. For more detail on VDL Magistrates see: Magistrates 1803-1824
From 1804-1812 Van Diemen’s Land was administered as two counties (Buckinghamshire and Cornwall) until the two divisions merged in July 1812. This was largely the result of a visit to the Island by Governor Macquarie in 1811. Not impressed by the irregular streets and temporary buildings in Hobart Town, the new Governor of New South Wales designed a rectangular street grid and ordered all buildings to be constructed of more permanent materials such as brick or stone. His street grid – mapped by surveyor James Meehan – included a large public square which included the land between Elizabeth, Murray and Macquarie Streets and towards Morrison Street. The space was named George’s Square and the intention was it would be the site for a future Church, Court House or Town Hall, a Main Guard and a Saturday Market.
While Macquarie recognised the need for a Court House, the administration of the settlement was floundering, following the death of Lieutenant Governor Collins in 1810, then three years of temporary Commandants more interested in their own affairs than those of the settlement. Depredations by bushrangers were increasing, putting the safety of free settlers at risk, and tensions between the aboriginal inhabitants and farmers were developing. When Lieutenant Governor Thomas Davey finally arrived in 1813, he proved totally incapable of restoring any semblance of law and order in the settlement, and eventually resorted to imposing Martial Law in 1814, against all the legal advice that he did not have the power to so, and even if he did, the bush ranging activities did not warrant such action.
While all this was going on the British Parliament was in the process of revising the legal system in New South Wales. In 1814 the second Charter of Justice of New South Wales created three new courts: the Lieutenant Governor’s Court (to be presided over by a Deputy Judge Advocate) was created specifically for Van Diemen’s Land and the civil and criminal jurisdiction of the New South Wales Supreme Court was extended to the dependency Van Diemen’s Land. However, it was to be another five years before the Supreme Court extended its circuit to include Hobart, with Chief Justice Barron Field presiding over civil cases in early 1819 in a temporary Court House recently fitted up for the occasion. He returned in 1821, when he was accompanied by the Judge Advocate, John Wylde, who opened the first criminal court in a vacant ward in the Colonial Hospital. Wylde would return in 1823 for a further and final sitting of the Supreme Court of New South Wales in Van Diemen’s Land.
Edward Abbott had been commissioned as the second Deputy Judge Advocate of Van Diemen’s Land. He was however the first to be able to constitute the newly established Lieutenant Governor’s Court when the Court opened in December 1815. The original appointee to this position was Samuel Bate, who arrived in Hobart in 1806, but without the official documentation required to set up the Court. He was able to sit as a magistrate, but this did not go well, with Governor Macquarie later describing him as “much addicted to low Company, totally Ignorant of Law, and a Very troublesome, ill-tempered Man”. This new court was the first superior civil court to sit permanently in the settlement and it was an important step in bringing normality to the commercial life of the settlement, even though it could only deal with matters valued up to £50. If the amount exceeded this figure then the parties involved were generally able to agree to split the action in to separate parts, all valued below the legal limit.
In September 1819 John Thomas Bigge arrived in New South Wales with instructions from Lord Bathurst, Secretary of State for War and the Colonies to carry out a wide-ranging commission of inquiry into the state of the colony. In Britain, rising unemployment had caused crime rates to rise, and increasing prisoner numbers had become a burden on the convict transport system.
Bigge toured New South Wales and Van Diemen’s Land between 1819 and 1821. He found that in Van Diemen’s Land there was no surplus convict labour, and those in government employment worked harder and were more strictly disciplined than in New South Wales. The legal dependence on New South Wales was severely felt, and Bigge recommended that Van Diemen’s Land be established as a separate colony; criminal jurisdictions be separated; a criminal court be created; and the powers of the lieutenant-governor in Hobart Town be strengthened. Bigge’s recommendations for Van Diemen’s Land were were reflected in the Imperial Act, 4 Geo IV, c96 which empowered His Majesty, as a temporary measure, to institute a court of judicature in Van Diemen’s Land. The Court would have the same powers as the common law courts (King’s Bench, Common Pleas and Exchequer) in England as well as the Equity Court of Chancery. It was also given ecclesiastical jurisdiction so it could deal with probate and letters of administration. It would be presided over by a single judge.
An Imperial Warrant was issued on 18 August 1823, followed by Royal Letters Patent on 13 October 1823. John Pedder was appointed to be the first Chief Justice and arrived in Hobart in March 1824 bringing with him the third Charter of Justice which provided for the creation of the Supreme Court of Van Diemen’s Land.
In 1823 Lieutenant Governor Sorell had ordered a court to be build but construction did not start until 1824 and was not completed when the new Supreme Court of Van Diemen’s Land sat for the first time on 10 May. The building, however, was temporarily fitted up for the first sitting though it would be another 16 months for the Court House to be completed during which time the Supreme Court sat in temporary accommodation in a house the authorities had purchased and fitted out for the Lieutenant Governor’s Court from 1822 to May 1824. This building was available because once the Supreme Court opened for business, the Lieutenant Governor’s Court ceased operations.
Upcoming posts will provide more details of the careers of individual chief justices and puisne judges in Van Diemen’s Land, the buildings which they occupied, their interpretation of legislation passed by the Legislative Council and the challenges to the independence of the judiciary.
Following the American War of Independence in 1783, the UK government could no longer send convicts to America. It was now faced with the problem of finding another overseas destination for the ever-increasing numbers of prisoners in its overcrowded gaols and prison hulks. Two of the essential criteria were that it had to be far away (to make it difficult for ex-convicts to return to England) and it had to be as cheap as possible. The eventual choice owed much to the report of Captain James Cook about what he had observed in 1770 when sailing up the east coast of what was then called New Holland. He claimed the entire eastern coast of the continent for the British Crown, naming it New South Wales.
Claiming territory was one thing but until settlements were established it was theoretically possible for other nations to claim unoccupied territory. By establishing a penal colony in New South Wales the British would be able to consolidate their claim as well as getting rid a considerable number of the prison population. The rights of the natives were effectively ignored.
Captain Arthur Phillip sailed from Portsmouth in late 1787 with around 1,500 people aboard the eleven ships of the First Fleet. The bulk of the passengers were prisoners, along with a contingent of marines and officers (some with wives and children). Arriving on 18 January 1788 at Botany Bay, Phillip was not impressed with the location. After sailing around for just over a week he finally decided on Port Jackson as the best location for the convict settlement.
In late 1802 Nicholas Baudin, Commander of the French expedition, sailed into Port Jackson to resupply his two ships. He was on a voyage to observe and research the geography and natural history of the coasts of New Holland. Governor King was concerned that the French explorers, in addition to their scientific activities, may well have had a hidden territorial agenda: to claim Van Diemen’s Land as French territory. In early 1803 he despatched Lieutenant John Bowen, with a splendid new uniform and a proclamation to be read any to any Frenchman who might dare to set foot on the Island, that this was British territory and an extension to the penal settlement in New South Wales. But no French ships appeared in the Derwent River. When they left Port Jackson they took the first right turn into Bass Strait, continuing to carry out their scientific observations along the southern shores of the mainland.
Initially both penal settlements were paid from the British Treasury, but the expectation was that the colonies would, in time, become self-sufficient. After all this was no holiday camp, but a place of punishment that would serve as a warning to the criminal classes in England that petty crimes could be punishable by banishment to the other side of the world. As for free settlers, enticements such as land grants and free convict labour went hand in hand with the loss of some of the civil rights they had enjoyed in England.
Under the terms of the New South Wales Act 1823 Van Diemen’s Land was granted colony status and officially separated from New South Wales on 3 December 1825. It now had its own governing body, a Legislative Council, and was able to enact its own legislation. From 1826-1830 a total of 34 Acts were passed, with approximately a third dealing with raising revenue for local purposes. This power was provided for under the provisions of both the New South Wales Act 1823 and the Australian Courts Act 1828 and included licensing and sale of liquor, imposing duties on newspapers, registration of deeds, wills, judgements, property conveyances, postage of letters, impounding animals for trespass, and regulating the slaughter of sheep and cattle. These revenue raising activities were legislated by the Legislative Council and the money raised had to be used to fund the specific activities relative to each Act. The money raised could not go into the Consolidated Revenue Fund. Expenditure on Administration of the Colony, the Convict Establishment, the Military, the Judiciary and the Churches was paid out of the British Treasury.
It was not until 1833 that the first Appropriation Acts describing the annual expenditure for the administration of the Colony of Van Diemen’s Land were enacted (4 Will IV No 6 and 4 Will IV No 7. Act No 6 sets out expenditure for Civil, Judicial, Ecclesiastical (including Schools), and Military departments, followed by a group of Miscellaneous matters. It takes a lot of concentration to read as the amounts for each item are included in the text of the Act: eg Section 4 reads:
“IV.-AND BE IT FURTHER ENACTED that out of the produce of the said duties there shall and may be issued and applied any sum or sums of money not exceeding six hundred and twenty pounds eleven shillings and eight pence to defray the salaries and contingent expenses of the Military Establishment in Van Diemen’s Land”
Act No 7 uses the same format but does include marginal notes which makes it much easier to see the individual amounts of expenditure(three examples listed below – note use of “l s d” abbreviations for pounds, shillings, pence).
43,310l. 6s. 2d. for the Civil Establishment viz.
771l. 10s. for the Lieutenant Governor’s Establishment.
638l. 5s. for the Department of the Councils.
Appropriation Act 6 Will IV No 9 for 1835 makes it even easier for anyone wanting to see the details of expenditure for that year. Headings are listed as marginal notes and items of expenditure are detailed in two columns: the item and the cost. Listed below are the seven headings and the total costs for each:
Civil Establishment – £34,724. 7s. 2d.
Departments of Public Works – £19,896. 19s. 1d.
Judicial Establishments – £12,345 17s. 6d.
Ecclesiastical and School Establishments – £14,445 16s. 10d.
Colonial Military Establishment – £384 16s. 8d.
Pensions – £845 0s. 0d.
Miscellaneous Services – £13,150 0s. 0d.
By 1849 the breakdown of expenditure for the Colony had increased from seven sections listed above to 23, as detailed in 13 Vict No 4.The final Appropriation Act for the Colony of Van Diemen’s Land was 19 Vict No 19. This authorised the expenditure for the year 1855. The next Appropriation Act would be for the Colony of Tasmania with expenditure no longer approved by an appointed Legislative Council but a bi-cameral Parliament which included some elected members.
If searching for missing Acts is like finishing a jig saw puzzle and realising the picture is not complete, then finding ten Acts that appear to have duplicate numbers is akin to having bits left over after you have assembled a flat pack piece of furniture.
In 1886 the numbers 1 – 4 appeared to have been used twice. The label on the brown paper package for 1886 indicated there were 36 Acts for that year: in fact, there were 40. Comparing the Acts with duplicate numbers confirmed each had the same regnal citation (50 Vict), both were printed by the Tasmanian Government Printer and signed by the Tasmanian Governor and at first glance, only the text showed they were different Acts, dealing with different subject matter.
You sometimes see what you expect to see. The different wording following the signatures at the end of each Act was the first clue and finally after close inspection of the front pages it became clear that the first 36 Acts were Acts from the Colony of Tasmania and the heading on the front page above the crest was Tasmania. The remaining four were the first four Acts of the Federal Council of Australasia.
Federal Council Act No 4 1886
Further investigation revealed six more Acts had been enacted by this body, making a total of ten Acts of the Federal Council, passed during the years 1886 to 1897. The first question was what was this Council, and secondly why was its legislation in the Records of the Tasmanian Supreme Court?
Since 1883 the Australian Colonies and some of their Pacific neighbours had become increasingly concerned by the presence of French and German ships in the region, to the extent that Queensland was so alarmed by German activity in the Torres Strait that it annexed the Island of New Guinea without seeking approval from the Colonial Office. Once the Imperial Government became aware of this development, they refused to ratify it. The Australian Colonies reacted by convening an inter-colonial convention which met in Sydney in November and December 1883. It was attended by the six colonies, Fiji and New Zealand and resulted in a request for the UK Parliament to pass legislation creating a Federal Council of Australasia, which would allow colonies to unite to deal with matters of common interest. Samuel Griffiths, Premier of Queensland (whose behaviour had precipitated the UK rebuke to the colonies) drafted a bill to be sent to the Imperial authorities for their consideration and this request got the tick of approval with the UK Parliament passing An Act to constitute a Federal Council of Australasia 14 August 1885
Membership was not compulsory, but there was a proviso that at least four colonies had to agree to be members. Queensland, Victoria, Tasmania, and Western Australia all passed the necessary Colonial Acts. South Australia joined for two years (1889-1890) but withdrew and New South Wales never joined. Speculation on why New South Wales refused to be a member ranges from a fundamental disagreement with Victoria about tariffs, to the vote in the NSW Parliament about joining the Council clashing with Melbourne Cup Day, leaving the government of the day in a minority due to the absence of a number of members who had travelled to Melbourne to attend the race (Source: Stuart B Kaye, “Forgotten Source: The Legislative Legacy of the Federal Council of Australasia”, [1996] Newcastle Law Review 5, 1(2) footnote 13, p 59).
As to how the official copies of the ten Acts passed by the Council ended up in Tasmania is a matter of logistics. The only convenient time the Council could sit was when colonial parliaments were in summer recess. A sea voyage to the cooler climate of Hobart during January/February every two years seems to have had a certain appeal to the three mainland colonies.
Representatives of first Federal Council Meeting Hobart 25 January 1886
Except for the final session of the Council in 1899, all the meetings were held in Hobart, with the Crown being represented by the Governor of Tasmania, or the Administrator, if there was no resident Governor when the Council was in session. When an Act was passed by the Council, it was printed by the Government Printer in Hobart, a wafer seal impressed on the top right-hand corner of the front page and the Act signed by the Governor of the day with a message: “In accordance with Act 48 & 49 Vict Cap 60. Section 15, I reserve this Bill for the signification of Her Majesty’s Pleasure”. Colonial Acts were simply signed by the Governor or Administrator.
Copies of the Federal Council Acts were then sent to the Colonial Office for assent by the Queen and advice of this assent sent back to the Colony, with the Order then published in the Hobart Gazette. As was the practice with Tasmanian Acts the original copies were forwarded on to the Supreme Court, to be held in the Records of the Court. However, there was no notification on the annual packages that they were from a separate jurisdiction.
A strange twist to this saga occurred during the time of the Australian Joint Copying Project (1948-1997) when important historical documents from the Colonial Office were microfilmed to allow Australian historians and researchers access to this material through the National Library. The ten Acts of the Federal Council (now available online) were included in this project, seemingly with no one aware that the original copies were securely stored in the Records of the Supreme Court in Tasmania.
The 2013 Tasmanian legislation providing for the original copies of all VDL and Tasmanian Acts to be transferred from the Supreme Court of Tasmania to the Tasmanian Archives and Heritage Office does not make any provision for the Acts of the Federal Council of Australasia. They will remain in the Records of the Court until a decision is made about the future of these jurisdictional stowaways.
One of the puzzles encountered when preparing to transfer the official copies of the legislation passed by the Legislative Council of Van Diemen’s Land was the whereabouts of some of the manuscript copies of Acts from 1826-1832. In theory all Acts from 1826 should have been held in the Records of the Supreme Court, until the responsibility was transferred to the Tasmanian Archives Heritage Office in mid-2013. However, the earliest Act in the Supreme Court collection is 4 Will IV Extending Existing Liquor Licences, No 1 of 1833. Of the 35 Acts made from 1826-1831 (no Acts passed in 1929 or 1832), 15 have been identified as already transferred to TAHO (reasons unknown but appears to have been mistakenly done under the Public Records Act 1943) leaving 20 original handwritten copies unaccounted for, though we know copies were sent to the Colonial Office as enclosures.
A search through the Register of the Governor’s Despatches to the Colonial Office provides the following details:
13/12/1826 – enclosing copies of Acts of Council as per 4 Geo IV, Chap 96, section 30 (New South Wales Act 1823) – 3 Acts
24/09/1827 – transmitting Acts of Legislative Council Nos 1, 2, 3 and 4, with observations on same
03/10/1827 – transmitting Acts 1 – 5 of Legislative Council
01/02/1830 – transmitting copies of all VDL Acts of Council
16/04/1830 – transmitting copies of 14 new Acts of Legislative Council
It appears that on 1 February 1830 copies of the 12 Acts previously transmitted were sent again. With 14 more Acts sent in April 1830, the total number of Acts passed at that time comes to 26. These Acts were ordered to be printed by the House of Commons and presented to Parliament as required by Act 9 Geo IV Chap 83, section 29, (now referred to as Australia Courts Act 1828) titled Copies of the Laws and Ordinances passed by the Governor and Council of the Colony of Van Diemen’s Land. The Tasmanian State Library holds a copy of this item in the Elephant Stack at TL.E 348.946024 TAS.
No Acts were passed in 1829. In 1830 the Legislative Council passed a total of 20 Acts. Manuscript copies of 14 of these Acts have already been transferred to Archives, and the remaining six Acts can be viewed in manuscript form at Tasmania: Acts – Manuscript. Only one more Act was published (in 1831) before the Supreme Court of Tasmania collection begins. 2 Will IV No 1 – Administration of Justice in the Supreme Court of Van Diemen’s Land can also be viewed at the above link, although not in manuscript form. The copy transmitted to the Colonial Office was a printed version.
Acts identified as missing from the Supreme Court collection are listed below:
5 Will IV No 10 and 6 Will IV No 9 are both Appropriation Acts which would have expired at the end of the financial year. Manuscript copies of both Acts can be viewed in the Australian Joint Copying Project Collection for the period 1 January 1834 to 31 December 1837.
6 Will IV No 3 was an Act to correct two clerical errors in 6 Will IV No 2, Courts of General Sessions and punishment and control of Transported and Other Offenders which had been passed on 4 August 1835. The amending Act (No 3) was passed on 19 August and both Acts published in the Gazette on 20 August 1835. The principal Act, No 2, now included the amendments made by the amending Act, but was still shown as being passed on 4 August. A check of the manuscript copy of Act No 2 in the Supreme Court collection shows that the corrections were not made to this copy. There is no copy of Act No 3, in the Supreme Court Collection, although there is one (very poor quality) in manuscript form, created by the Australian Joint Copying Project. Strangely there is no copy of Act No 2 in the AJCP Collection. In summary an amendment has been incorporated into the principal Act No 2 in the Gazette, while the clerical errors identified in Act No 3 have not been made to the original manuscript version. In addition, there is no manuscript version of amending Act No 3 in the Supreme Court Collection.
Neither Act No 31/1962 (Amending the Guest House Registration Act) nor Act No 31/1963 (amending the Probation of Offenders Act) have been located.
After its receipt by the Registrar, Act No 55/2005 was listed in the Consignment List as:
2005 No 55 Taxation Legislation (Miscellaneous Amendments) Act 2005
The Act had received the Royal Assent on 9 December 2005, and was then forwarded to the Registrar, and duly signed as being received into the records of the Court. When all the entries in the Consignment List were checked against the Acts in the Archive Boxes, the physical copy of Act 55/2005 was missing. The reason was that the Legislative Council had requested the Registrar to return the Act as invalidly made and making revoked.
No other request for the return of an Act had ever been received by the Court. When Acts were disallowed either by the Queen, the Judges or the Tasmanian Parliament, the physical copy remained in the records of the Supreme Court.
An enquiry to the Office of Parliamentary Counsel provided the following explanation:
There is no Act No 55 of 2005. The Governor cancelled his signature by which he purported to assent to Bill No 74 of 2005.
Contrary to the advice given to the Governor, the Bill had not passed both Houses of Parliament, so the assent given by the Governor on 9 December 2005 had no effect in law. Notice of cancellation was published in Gazette 18 January 2006, p 51.
In 1945 the National Library of Australia and Archive repositories in the United Kingdom and Ireland began a collaborative project to copy historical records relating to Australia, New Zealand and the Pacific. Microfilming commenced in 1948, continuing until the Project was completed in 1993. The date range of records now available through the Australian Joint Copying Project (AJCP) is 1560 to 1984. The collection contains 7.5 million records held on 10,419 reels of 35mm microfilm and is divided into two main sections: PRO (Public Records Office and M (Miscellaneous) Series. These records are now available online.
See the AJCP website for a comprehensive account of how to use and access its content.
The AJCP is relevant to the Tasmanian Supreme Court Legislation Archiving Project because it provides access to copies of the original manuscript Acts of the Legislative Council in Van Diemen’s Land from 1830 to 1851. These copies were sent to the Colonial Office by the Lieutenant Governors of the Colony to ensure the legislation of the Colony was not repugnant to the laws of England. There is no indication that the AJCP knew that the original manuscripts were part of the records of the Supreme Court of Tasmania, under the terms of the Acts Custody Act 1858 (Tas). The importance of the original copies of all Tasmanian legislation (both manuscript and printed), that have received Royal Assent by being signed by the Governor, replicates the procedures of the UK parliament whereby members could request to see the original Act to check the accuracy of the wording in a particular law.
There are seven collection files of VDL legislation: 1830-18341834-18371838-18391840-18411842-18451846-18481849-1851. You can use the Browse this Collection button to bring up thumbnails of single pages and use the Next and Previous links to move either forward or backward through each collection. The quality of images varies but selecting Full Screen mode or the Zoom button allows you to increase the size of each image.
Links are also available to manuscript copies of the early legislation of New South Wales and Western Australian on Acts, Ordinances and Proclamations from the Colonies. There is also a link on this page to a Register of Acts for Australian colonies, New Zealand, Auckland Islands, Fiji and British New Guinea (Papua) and the printed copies of the ten Acts of the Federal Council of Australasia.
While examining the original manuscripts of Acts from 1830-1851 twelve Acts were identified as being very difficult to read. As the collection has had minimal exposure to light, which can cause fading, it is thought that the problem may be poor quality ink, particularly as there are instances in the correspondence from the Colonial Office to the administration in Van Diemen’s Land where complaints are made about the readability of ink in official dispatches. A random check to compare the readability of some of the twelve problem Acts, held in Tasmania, with the same Acts in the AJCP Collection indicates their digital images can, at times, be easier to read than the original Acts. This could be useful if, in the future, it is decided to digitise the original manuscript copies of the Acts.
While Lieutenant Governor George Arthur has the dubious reputation for engaging in the longest period of martial law in Australia, from late 1828 to the end of 1831, this was not the first instance of the Island being subjected to a period of direct military control and the suspension of many civil activities.
Arthur had proclaimed martial law to try to resolve the growing hostilities between the aboriginals and settlers about land use. Some 14 years earlier Lieutenant Governor Thomas Davey had issued a proclamation to treat the aborigines kindly. However, as the settlement expanded, the treatment of aborigines by settlers, convicts and bushrangers did result in some acts of retaliation. This did not concern Davey overmuch, his main concern being the escalation of bushranging.
As Van Diemen’s Land was still part of the Colony of New South Wales, Davey requested increased military protection from Lachlan Macquarie the Governor-in-Chief, but this appeal went unanswered. In 1814 Macquarie did act, promising to pardon bushrangers who surrendered within six months. Not surprisingly this was generally seen as an opportunity to continue their raiding activities for most of the amnesty period before ‘coming in’. Some of those who did surrender later returned to their old ways.
With no additional military forces, and no local criminal court, Davey resorted to declaring martial law in 1815, even though being advised by Edward Abbott that he lacked the authority to do so. With martial law in force the military were able to punish individuals as they saw fit, trying captured bushrangers by court martial. Several were executed before Governor Macquarie reacted by revoking martial law after six months.
The six months of martial law impacted the civilian population by:
The trade in kangaroo skins being banned
Curfews being imposed
Licensed houses closing early
The limitation of small boat movements
The end of martial law allowed Edward Abbott to finally take up his position as Deputy Judge Advocate in Van Diemen’s Land. He had opposed the imposition of martial law, arguing that it was incompatible with holding a court under civil law. He did, however, serve on several courts-martial during the six months of military rule.
Prior to Van Diemen’s becoming an independent colony on 3 December 1825, a succession of Lieutenant Governors had administered the Island largely through the issue of General and Garrison Orders. As the names suggest Garrison Orders applied to the military and General Orders to civilians, including convicts. David Collins, first Lieutenant Governor, brought a small hand press with him which was used to print copies of the Orders which were headed by the Royal Coat of Arms and placed on an Order Board for the whole settlement to see.
The Mitchell Library in Sydney holds a copy of the General and Garrison orders issued by Collins for the years 1803-1808. The introduction asserts that the 355 pages of the volume “contains a very interesting and authentic account of the first settlement in Port Phillip … and Risdon and Hobart Town”. The following examples from the Subject Index of General Orders show the minute detail of the day-to-day concerns in governing the settlement:
Hogs – running loose to be sold to defray damages committed
Huts, persons occupying them are to keep the Road in front thereof clean
Kangooroo not to be received [in the stores] in a damagd or putrid state
Night Watch – not to interfere with Military
Swans – not to be destroyed witht. Permissn
The Subject Index is followed by the full text of each Order. The handwritten Orders do not appear to have been numbered, and are identified by the date issued and subject of each Order.
The first book printed in Van Diemen’s Land appears to be a 36-page compilation of Orders and Proclamations issued during the first year of Lieutenant Governor Thomas Davey’ tenure 1813-1814
It is not clear if this was an official government publication or a commercial venture by George Clark who appears to have been doing the work of a government printer, though there is no formal record of his appointment. By the time Lieutenant Governor Sorell arrives to take over from Davey, official Government Orders and Notices were being published in the Hobart Town Gazette.
In the main vice-regal General Orders were taken to be valid law-making acts, enforceable by magistrates but by 1820 it was becoming evident that some General Orders were open to challenge in the New South Wales Supreme Court because of doubts about the legality of certain colonial powers, particularly in the area of raising tax revenue.
Sorell was the last Lieutenant Governor of Van Diemen’s Land who had to rely solely on General Orders to govern the civilian and convict population. When Colonel George Arthur arrived in 1824 to succeed Sorell as Lieutenant Governor, he too could only make General Orders but by the end of 1825 Van Diemen’s Land had become independent from New South Wales, with an Executive Council to advise and a Legislative Council to legislate.
Arthur now had almost unlimited power to make laws for the new Colony, with both councils prepared to rubber-stamp his policies and legislation. However, he did not go into a frenzy of law making, with just 26 Acts passed from 1826-1830, an average of five a year. In the ten years from 1826 to 1836, 88 statutes were passed compared with 136 in six years under his successor Sir John Franklin.
Where possible Arthur still preferred to continue the practice of issuing General Orders to regulate colonial affairs. All Acts passed by the Legislative Council could be disallowed by the Queen, whereas General Orders were not subjected to such scrutiny.
The numbering system for statutes enacted in by the Legislative Council in Van Diemen’s Land from 1826 to 1852 followed the convention used by the UK Parliament, by using regnal years.
The first Act to be passed was:
An Act for the Summary Punishment of Disorderly Conduct in Any Offender in the Service of Government or of Any Inhabitant of New South Wales or Van Diemen’s Land (7 Geo IV, No 1).
King George IV had become King on 29 January 1820, thus the first year of his reign started on 29 January 1820 and ended on 28 January 1821, which was expressed as 1 Geo IV. On 29 January 1821, the regnal year becomes 2 Geo IV, and so on until we get to 7 Geo IV which began on 29 January 1826 and ended on 28 January 1827. As the Act was passed in August 1826 its citation is 7 Geo IV, followed by the No 1 (since it was the first Act of this regnal year) – hence 7 Geo IV, No 1.
Loose Connections 