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.