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An Act for the Administration of Justice in New South Wales and Van Diemen’s Land, 1823 (4 Geo IV c 96) repealed An Act Constituting a Court of Criminal Judicature in New South Wales, 1787 (27 Geo III c 2).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.

About dashea2014

A Law Librarian with extensive experience in general legal and court libraries. Editor of the Australian Law Librarian for 4.5 years (2008-2012) and active member of Law Libraries Tasmania. Special topics - Tasmanian legislation and case law. A passion for maintaining access to print resources.
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