| Act of Parliament | |
 | |
| 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. |
|---|---|
| Citation | 4 Geo. 4. c. 96 |
| Territorial extent | Colony of New South Wales |
| Dates | |
| Royal assent | 19 July 1823 |
Status: Repealed | |
| Text of statute as originally enacted | |
TheNew South Wales Act 1823 (4 Geo. 4. c. 96), orNew South Wales Jurisdiction Act 1823, was anAct of theParliament of the United Kingdom, which established theNew South Wales Legislative Council and theSupreme Court of New South Wales, in addition to theSupreme Court of Van Diemen's Land.[1]
The act was passed in response to growing criticism in theColony of New South Wales of the lack of a proper superior court as well the lack of a properresponsible government. At the time, theGovernor of New South Wales had virtually unlimited powers and could only be overruled by the Colonial Office in the United Kingdom. In 1819, CommissionerJohn Bigge was sent fromLondon to report on the state of the colony.[2]Francis Forbes, formerlyChief Justice of Newfoundland, was heavily involved in the drafting of the bill presented to Parliament.
The act authorised the creation of theNew South Wales Legislative Council, alongside theSupreme Court of New South Wales which was to be a court of equivalent authority to that of theKing's Bench in theUnited Kingdom. Moreover, it established the office ofChief Justice of New South Wales, which was anex officio member of the legislative council who also had to certify any laws as being proper. Additionally, it authorised the eventual separation of Van Diemen's Land (now Tasmania) from the colony of New South Wales, and created the Supreme Court of Van Diemen's Land, which is now theSupreme Court of Tasmania, which contained theChief Justice of Tasmania.
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 second report, who recommended against trial by a civilian jury.[4] TheHouse 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 theAttorney-General of NSW,Saxe Bannister and theSolicitor-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 byD'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 createdSupreme Court in whichChief JusticeForbes 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 theAustralian Courts Act 1828.[5][7]
This Act is seen withinAustralia as being the first steps towardrepresentative democracy. The Act authorised the issuing ofletters patent by theMonarch 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 theThird Charter of Justice.
TheMurders Abroad Act 1817 had previously givenLachlan Macquarie, the Governor of New South Wales, an increased legal authority overNew Zealand and murders or manslaughters could be tried in an admiralty court just as if they had been committed at sea.[8][9] The New South Wales Act 1823 extended the jurisdiction to include lesser crimes committed in New Zealand.[8]
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