Australian Courts Act 1828
On 25 July 1828 the Australian Courts Act 1828 came into power. It enacted 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. It also provided for trial by jury in the Supreme Court in civil cases and empowered the Governor to introduce general trial by jury in criminal matters.
The Act isn’t mentioned in many Australian history texts, as I discovered on searching the indexes of books in my personal library. Yet it represented a significant move away from autocratic rule in the colonies of New South Wales and Van Diemen’s Land (Tasmania), a move that was instigated by its predecessor, the New South Wales Act of 1823.
The 1828 Act clarified the relationship between the two colonies and the United Kingdom in terms of the administration of law, and strengthened the civil elements of the penal colony. Following the passage of the Act, all English common law and statute law, as it existed in England on the day of 25 July 1828, was held to be in force in New South Wales and Van Diemen’s Land. This did not apply to previous English laws, however, and, most significantly, the 1828 Act made clear that it didn’t apply to future ones – unless the Acts passed by the UK Parliament specifically referred to the colonies.
The Australian Courts Act is also noteworthy as the first time an Act mentioned the term ‘Australian’ in its title. As the Act sought to ‘provide for the 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’, the Imperial authorities needed a concept to encompass both colonies together. ‘Australian’ was it!
Prior to 1823, governors had been the source of executive and legislative power, and the final point of appeal. Under the 1828 Act, appeals to the governors of both colonies against Supreme Court decisions were ended. With the Governor’s Court abolished in 1824, the 1828 Act strengthened the other existing courts. The law courts and the judicial process became independent of the colonial governors.
Previously, governors could exercise power arbitrarily and courts were an extension of their powers. Resistance to this situation – the desire to place a limit on state power - finds echo in the struggles for the Magna Carta principle against arbitrary authority 800 years ago.
In the nineteenth century in England, people were fighting to expand suffrage, and so too in New South Wales the emancipists – the men and women who had once been convicts (and their supporters) – were taking the lead in seeking the development of civil society, trial by jury and, ultimately, representative government.
‘Trial by jury’ was another Magna Carta principle – expressed in 1215 as ‘judgement of peers’ – but it had taken centuries to achieve in England. Australians, luckily, were able to import it, though it took 45 years after the initial British settlement. The Australian Courts Act allowed for trial by jury in Supreme Court civil cases and empowered the governors to introduce trial by jury in criminal cases. It was finally introduced for people charged under criminal law in New South Wales in 1833 and Van Diemen’s Land in 1834.
The 1828 Act expanded the Legislative Councils – the ‘parliaments’ – of both colonies. Each was to have 10 to 15 members, appointed by the Crown, compared to the previous membership of five, when the first NSW Legislative Council was set up via the NSW Act of 1823.
In recognizing that future laws could be legislated for locally, the 1828 Act set a firm foundation for the further development of a legal system, and greater democracy, in Australia; one that could respond better after 1828 to its own requirements and circumstances. The Act rightly assumed that New South Wales and Van Diemen’s Land would not forever be penal colonies. However, the Act was a far cry from creating an independent or democratic status for the colonies. Future laws could be passed in the colonies only if these were not repugnant (inconsistent with or contradictory to) to the laws of the United Kingdom.
This situation was only changed completely in 1986, with the passage of the Australia Act that ended any ‘repugnancy’ test with regards to Australia’s states and territories.