New South Wales Act 1823

The New South Wales Act 1823 (4 Geo. IV c. 96) was an Act of the Parliament of the United Kingdom with the long title "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".[1]

Background

The Act was passed in response to growing criticism in the colony of New South Wales of the lack of a proper superior court as well the lack of a proper responsible government. At the time, the governor of New South Wales had virtually unlimited powers and could only be overruled by the Colonial Office in the United Kingdom. Commissioner John Bigge was sent from London in 1819 to report on the state of the colony.[2] Francis Forbes, formerly Chief Justice of Newfoundland, was heavily involved in the drafting of the bill presented to Parliament.

Main objects of the Act

The Act set out to create a number of aims. Firstly, it authorised the creation of a Legislative Council for the colony of New South Wales. Secondly, it created the Supreme Court of New South Wales, being a court of equivalent authority to that of the King's Bench in the United Kingdom. Thirdly, it created the office of Chief Justice of that Court, such as justice to be the supreme justice of the Court. The Chief Justice was an ex officio member of the legislative council and also had to certify any laws as being proper. Fourthly, it authorised the eventual separation of Van Diemen's Land (now Tasmania) from the colony of New South Wales. Fifthly, it created the Supreme Court of Van Diemen's Land, which is now the Supreme Court of Tasmania. Sixthly, it created the office of Chief Justice of that Court.

Trial by civilian jury

A petition was circulated in 1819 seeking both trial by civilian jury and the establishment of representative government.[3] This was one of the matters considered by Commissioner Bigge in his 2nd report, who recommended against trial by a civilian jury.[4] The House of Commons had narrowly defeated a proposal that civilian juries be introduced for criminal trials, prior to passing the Act which prescribed military juries for criminal trials before the Supreme Court. There was a disagreement between the Attorney-General of NSW, Saxe Bannister and the Solicitor-General of NSW, John Stephen as to the meaning of the Act. Castles describes the case that followed as a fabricated cause, set in train by D'Arcy Wentworth, who was one of the magistrates who had failed to assemble juries,[5] but had been one of the leaders of the 1819 petition seeking their introduction. The matter was argued before the newly created Supreme Court in which Chief Justice Forbes held that civilian juries were required for Court of Quarter Sessions.[6] Trial by civilian jury was short-lived however as it was abolished by the Australian Courts Act 1828.[5][7]

Importance

This Act is seen within Australia is being the first steps towards representative democracy. The Act authorised the issuing of letters patent by the King of the United Kingdom.

In consequence of this legislation, Letters Patent establishing the New South Wales Supreme Court were sealed on 13 October 1823, and proclaimed in Sydney on 17 May 1824. They are known as the Third Charter of Justice.

The Murders Abroad Act 1817 had previously given Lachlan Macquarie, the Governor of New South Wales, an increased legal authority over New Zealand[8] and murders or manslaughters could be tried in an admiralty court just as if they had been committed at sea.[9] The New South Wales Act 1823 extended the jurisdiction to include lesser crimes committed in New Zealand.[8]

Trivia

Amendments noted on the rear of the bill refer to the Act as the "New South Wales Jurisdiction Bill."

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References
  1. New South Wales Act 1823 (UK) and transcript (PDF), retrieved 25 February 2019 – via Museum of Australian Democracy
  2. John Thomas, Bigge (1823). Report of the Commissioner of Inquiry on the judicial establishments of New South Wales and Van Diemen's Land. House of Lords Sessional papers 1801-1833.
  3. Auchmuty, J J. "Wentworth, D'Arcy (1762–1827)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538. Retrieved 23 February 2019 – via National Centre of Biography, Australian National University.
  4. Bigge 2nd Report (1923), p. 53.
  5. Castles, Alex C. "The Judiciary and Political Questions: The First Australian Experience, 1824-1825" (PDF). (1975) 5(3) Adelaide Law Review 294.
  6. R v Magistrates of Sydney [1824] NSWSupC 20, [1824] NSWKR 3, Supreme Court (NSW)
  7. Australian Courts Act 1828 (UK) and transcript (PDF), retrieved 25 February 2019 – via Museum of Australian Democracy
  8. McLintock, A. H., ed. (22 April 2009) [First published in 1966]. "The Establishment of Sovereignty". An Encyclopaedia of New Zealand. Ministry for Culture and Heritage / Te Manatū Taonga. Retrieved 24 June 2017.
  9. Jenks, Edward (1912). A history of the Australasian colonies : from their foundation to the year 1911 (3rd ed.). Cambridge: University Press. p. 170. Retrieved 24 June 2017.
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