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.