When the British flag was unfurled at Port Jackson on 26 January 1788, Captain Arthur Phillip proposed toasts to the King, the royal family and the success of the Colony of New South Wales, a penal settlement primarily created to relieve the pressure on overcrowded English gaols. As it was acknowledged that free settlers would be encouraged to migrate at a later date, the authorities in London made provision for a civil judicial system, as well as a criminal court.
The Court of Civil Jurisdiction was created by the First Charter of Justice by Letters Patent dated 2 April 1787. The presiding officer was the Deputy Judge Advocate and he was assisted by two persons appointed by the Governor. It had jurisdiction to hear matters relating to land, houses, debt, contract, trespass as well as common law and equitable cases. It operated from 1788 until it was abolished by the Second Charter of Justice, issued on 14 February 1814.
With the establishment of a settlement in Van Diemen’s Land in 1803, followed by the arrival of Lieutenant Governor David Collins in February 1804 there was an expectation that a similar court would soon be operating in the new dependency of Van Diemen’s Land, along the lines of the court that Collins himself had presided over in New South Wales from 1788 to 1796. A Judge Advocate, Benjamin Barbauld, had been appointed to accompany Collins but did not sail with Collins in the Calcutta when it left Portsmouth in company with the supply ship Ocean on 27 April 1803, bound firstly for Port Phillip (deemed unsuitable for settlement) and then sailing on to the River Derwent in Van Diemen’s Land.
Barbauld had obtained permission to delay his departure on account of urgent, private business. When he showed no inclination in the following months to find passage to Van Diemen’s Land to take up his commission it was eventually cancelled and Samuel Bate was appointed in his stead. When Bate finally arrived in Van Diemen’s Land in 1806 Collins discovered that Bate not been given the necessary authority for presiding in a court in Van Diemen’s Land and could only be used as a magistrate. Despite this, every year from 1803 to 1814 the UK Parliament included a vote for the salary of a Deputy Judge Advocate despite Baubauld never appearing in Van Diemen’s Land and Bate only ever sitting as a magistrate. J M Bennett’s article on ‘The Status and Authority of the Deputy Judge Advocates of New South Wales’ provides a useful summary of the role and responsibilities of this office.
When Governor Macquarie arrived in Port Jackson in 1810 to assume control of the Colony of New South Wales, he initially thought that there were law courts operating in the Van Diemen’s Land. When he found this not to be the case, he made strong representations to London that separate courts of civil and criminal jurisdiction should be set up in the island dependency.
The 1812 Report from the Select Committee on Transportation acknowledged that:
‘… great inconveniences are felt in the Colonies in Van Diemen’s Land, from the want of a Court of Justice. The jurisdiction of the Magistrates is all that the inhabitants have to look to for their protection against offenders; and for the settlement of civil differences, they have no power within the colony of appealing to the law; all causes and great offences are removed for trial at Port Jackson, to an inconvenience and expense too manifest to need any further remark; a Judge Advocate is already appointed, and the additional expense to be incurred, by the completion of a Court, adapted to the male population of the Colony, would not be great’. It was not until 1816 that a civil court opened its doors in Hobart, and eight more years before a criminal court came into being.
In 1814, the Second Charter of Justice did make provision for a Deputy Judge Advocate’s Court in Van Diemen’s Land, but it was two more years before it finally began hearing cases.
The failure of the UK Government to make adequate provisions for a functioning legal system in van Diemen’s Land is hard to understand. As a dependency of New South Wales, the population of the colony supposedly had access to the courts that operated in New South Wales, but both the civil and criminal courts refused to make the journey across Bass Strait, so the only recourse was to make the long and expensive trip to Sydney with the necessary witnesses to prosecute a case in the Sydney courts.