The New South Wales Act 1823, or New South Wales Jurisdiction Bill, was an Act of the

Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprem ...

, which established the

New South Wales Legislative Council The New South Wales Legislative Council, often referred to as the upper house, is one of the two chambers of the parliament of the Australian state of New South Wales. The other is the Legislative Assembly. Both sit at Parliament House in t ...

and the

Supreme Court of New South Wales The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales. It has unlimited jurisdiction within the state in civil matters, and hears the most serious criminal matters. Whilst the Supreme Court ...

, in addition to the

Supreme Court of Van Diemen's Land The Supreme Court of Tasmania is the highest State court in the Australian State of Tasmania. In the Australian court hierarchy, the Supreme Court of Tasmania is in the middle level, with both an appellate jurisdiction over lower courts, and ...

. and

Background

The Act was passed in response to growing criticism in the

Colony of New South Wales The Colony of New South Wales was a colony of the British Empire from 1788 to 1901, when it became a State of the Commonwealth of Australia. At its greatest extent, the colony of New South Wales included the present-day Australian states of ...

of the lack of a proper superior court as well the lack of a proper

responsible government Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability, the foundation of the Westminster system of parliamentary democracy. Governments (the equivalent of the executive br ...

. At the time, the

Governor of New South Wales The governor of New South Wales is the viceregal representative of the Australian monarch, King Charles III, in the state of New South Wales. In an analogous way to the governor-general of Australia at the national level, the governors of the A ...

had virtually unlimited powers and could only be overruled by the Colonial Office in the United Kingdom. In 1819, Commissioner

John Bigge John Thomas Bigge (8 March 1780 – 22 December 1843) was an English judge and royal commissioner. He is mostly known for his inquiry into the British colony of New South Wales published in the early 1820s. His reports favoured a return to the ...

was sent from

London London is the capital and List of urban areas in the United Kingdom, largest city of England and the United Kingdom, with a population of just under 9 million. It stands on the River Thames in south-east England at the head of a estuary dow ...

to report on the state of the colony.

Francis Forbes Sir Francis William Forbes (1784 – 8 November 1841) was a Chief Justice of Newfoundland, and the first Chief Justice of New South Wales. Early life Forbes was born and educated in Bermuda, the son of Dr. Francis Forbes M.D. and his wife Mar ...

, formerly Chief Justice of Newfoundland, was heavily involved in the drafting of the bill presented to Parliament.

The Act

The Act authorised the creation of a Legislative Council for

New South Wales ) , nickname = , image_map = New South Wales in Australia.svg , map_caption = Location of New South Wales in AustraliaCoordinates: , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , es ...

, alongside the

which was to be a court of equivalent authority to that of the King's Bench in the

United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and ...

. Moreover, it established the office of

Chief Justice of New South Wales The Chief Justice of New South Wales is the senior judge of the Supreme Court of New South Wales and the highest-ranking judicial officer in the Australian state of New South Wales. The Chief Justice is both the judicial head of the Supreme Co ...

, which was an ''ex 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 the

Supreme Court of Tasmania The Supreme Court of Tasmania is the highest State court in the Australian State of Tasmania. In the Australian court hierarchy, the Supreme Court of Tasmania is in the middle level, with both an appellate jurisdiction over lower courts, and d ...

, which contained the Chief Justice of Tasmania.

Trial by civilian jury

A petition was circulated in 1819 seeking both trial by civilian jury and the establishment of representative government. This was one of the matters considered by Commissioner Bigge in his 2nd report, who recommended against trial by a civilian jury. The

House of Commons The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. T ...

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 Saxe Bannister (1790 – 16 September 1877) was a writer and the first Attorney-General of New South Wales, Australia. Early life and education Bannister was born in Steyning, Sussex, son of John Bannister. He matriculated at The Queen's Colle ...

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 D'Arcy Wentworth (14 February 1762 – 7 July 1827) was an Irish surgeon, the first paying passenger to arrive in the new colony of New South Wales. He served under the first seven governors of the Colony, and from 1810 to 1821, he was ''great ...

, who was one of the magistrates who had failed to assemble juries, (1975) 5(3)

Adelaide Law Review The ''Adelaide Law Review'' is a scholarly refereed law journal based at the University of Adelaide. It is published twice a year by the Adelaide Law Review Association of the University of Adelaide's Faculty of Law.Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...

in which Chief Justice

Forbes ''Forbes'' () is an American business magazine owned by Integrated Whale Media Investments and the Forbes family. Published eight times a year, it features articles on finance, industry, investing, and marketing topics. ''Forbes'' also r ...

held that civilian juries were required for Court of Quarter Sessions. Trial by civilian jury was short-lived however as it was abolished by the '' Australian Courts Act 1828''. and

Legacy

This Act is seen within

Australia Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...

as being the first steps toward

representative democracy Representative democracy, also known as indirect democracy, is a type of democracy where elected people represent a group of people, in contrast to direct democracy. Nearly all modern Western-style democracies function as some type of represe ...

. The Act authorised the issuing of

letters patent Letters patent ( la, litterae patentes) ( always in the plural) are a type of legal instrument in the form of a published written order issued by a monarch, president or other head of state, generally granting an office, right, monopoly, tit ...

by the

Monarch of the United Kingdom The monarchy of the United Kingdom, commonly referred to as the British monarchy, is the constitutional form of government by which a hereditary sovereign reigns as the head of state of the United Kingdom, the Crown Dependencies (the Bailiw ...

. 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 Third or 3rd may refer to: Numbers * 3rd, the ordinal form of the cardinal number 3 * , a fraction of one third * 1⁄60 of a ''second'', or 1⁄3600 of a ''minute'' Places * 3rd Street (disambiguation) * Third Avenue (disambiguation) * Hi ...

. The Murders Abroad Act 1817 had previously given

Lachlan Macquarie Major General Lachlan Macquarie, CB (; gd, Lachann MacGuaire; 31 January 1762 – 1 July 1824) was a British Army officer and colonial administrator from Scotland. Macquarie served as the fifth Governor of New South Wales from 1810 to 1821, an ...

, the Governor of New South Wales, an increased legal authority over

New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island coun ...

and murders or manslaughters could be tried in an admiralty court just as if they had been committed at sea. The New South Wales Act 1823 extended the jurisdiction to include lesser crimes committed in New Zealand.

References

{{UK legislation 1823 in law United Kingdom Acts of Parliament 1823 Acts of the Parliament of the United Kingdom concerning Australia 19th century in New South Wales