When Governor Arthur Phillip arrived at Sydney Cove in January 1788 with 850 convicts, guards and officials, he had absolute authority over everyone in the colony, including the Aboriginal inhabitants. The legal basis for Phillip’s authority was the First Charter of Justice for New South Wales, Letters Patent, 2 April, 1787 along with The New South Wales Courts Act 1878 (UK).
Under the Law of Nations (the equivalent of international law) at that time, the Australian continent was regarded as terra nullius. When Phillip arrived, he was able to plant the British flag, read the proclamations issued by the British Government and proceed to set up the Penal Colony of New South Wales along with establishing the necessary Civil Government. The concept of terra nullius remained in the Australian legal system until it was overturned by the High Court Mabo judgment in 1992.
In the case of Van Diemen’s Land, it had already been claimed for the Stradtholder of the Netherlands in 1642 by the Dutch navigator, Abel Tasman. Part of the deal in claiming such land was that you then had to establish a settlement. However, having made the claim, Tasman then sailed away and there was never any Dutch follow-up.
It was a different story in 1803, when Van Diemen’s Land was officially claimed as British territory and part of the Colony of New South Wales. As such it was now subject to the provisions of the 1st Charter of Justice with access to justice available in the courts established in Sydney.
Lieutenant John Bowen had been despatched by Governor King in Sydney to start a settlement in Van Diemen’s Land and to raise the flag in the name of His Majesty. Earlier in 1803 King had become concerned that the French had designs on claiming parts the continent, even though the explorer Nicholas Baudin, when he sailed into Sydney Harbour, insisted his voyage was a purely scientific one. King was taking no chances and had hastily packed the young Bowen off to the island, providing him with the appropriate proclamation, a flag and a suitably magnificent uniform to wear should any French explorers decide to sail up through Storm Bay and into the Derwent River. Sadly, for Bowen and his uniform, they never did.
His command was short-lived as Lieutenant David Collins had been despatched by the British government to establish a colony in the southern parts of the continent or in Van Diemen’s Land (again in order to thwart any possible French attempts to claim territory). Collins original choice was Port Phillip Bay in what is now part of the State of Victoria, but he abandoned that as unsuitable and sailed on to Van Diemen’s Land. Not impressed with the site chosen by Bowen, he moved the settlement to the current site of Hobart and assumed control as Lieutenant-Governor. A second settlement was also set up at Port Dalrymple by Colonel Paterson.
In 1804 Royal Letters had been issued appointing Samuel Bate as Deputy Judge Advocate for a colony to be established by David Collins, but when Bate eventually arrived in Van Diemen’s Land in 1806 he did not bring the necessary Charter of Justice which would allow courts of civil and criminal jurisdiction to be set up in the colony. Collins was not happy, writing to the Colonial Office after the arrival of Bate –
“The arrival of this Officer had long been anxiously expected by me, as I had hoped the administration of Public Justice and the infliction of Capital punishment would follow his appearance and that the Commission of Crimes, which the peculiar Circumstances of the Settlement have rendered frequent, would thereby have received an effectual check; but to my extreme regret, I learned from himself that he was wholly unprovided with the Authority from Parliament necessary to constitute a Court of Criminal and Civil Judicature.”
So Collins was left with a Deputy Judge Advocate who continued to be paid until 1814, but with no ability to set up a court over which he could preside. The Judge Advocate in Sydney could have gone on circuit to Van Diemen’s Land, but was unwilling to make the arduous sea journey. This left the judicial administration of the Island in the hands of the courts operating in Sydney, but the distance, inconvenience and cost of travelling by sea to resolve legal matters meant that magistrates and justices of the peace in Van Diemen’s Land ended up dealing with all but the most serious cases such as murder and complex civil matters.
It was not until 1816 that Edward Abbott, appointed as Deputy Judge Advocate under the terms of the 2nd Charter of Justice, would begin hearing civil matters in Hobart up to the value of ₤50 and a further five years for Judge Advocate Wylde to make the trip from Sydney to Hobart to hear criminal charges against 116 prisoners.