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The Australian Colonies.

New South Wales.

Captain Phillip's expedition arrived at Botany Bay on the 18th January, 1788, and formal possession of Sydney Cove was taken on the 26th January, which is observed in Australia as “Foundation Day,” though the proclamation of the colony did not take place until the 7th February. The Governor's commission and proclamation embraced the present colony of New South Wales, Tasmania, Victoria, and Queensland, as well as part of New Zealand and of the Western Pacific. The early government was little in accord with the principles applicable to free settlements, and much that was done in the name of authority had a very slender basis of law to support it. The uncertainty as to the legality of the government was met by the Statutes of 4 Geo. IV., c. 96, with the Charter of Justice of the 13th of October, 1823, and 9 Geo. IV., c. 83. Although the Act under which the colony was founded (27 Geo. III., c. 2) contemplated the establishment of “a colony and civil government,” the true foundation of civil as distinguished from military government dates from 1823. A Supreme Court with the ordinary adjuncts of a common law court as contrasted with those of a court martial was established, and the Ordinances of a Council, equipped by Statute with legislative power, took the place of the doubtful regulations of the Governor. In 1829 the Australian Courts Act, 1828 (9 Geo. IV., c. 83), superseded the temporary provisions of the Act of 1823; and while confirming the Supreme Court and the Legislative Council, the Act also set at rest doubts concerning the law in force in the colony. Section 24 of the Act provided “that all Laws and Statutes in force within the Realm of England at the time of the passing of this Act (not being inconsistent herewith, or with any Charter, or Letters Patent, or Order in Council which may be issued in pursuance hereof) shall be applied in the Administration of Justice in the Courts of New South


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Wales and Van Diemen's Land respectively so far as the same can be applied within the said colonies.” This has been construed as not applying merely to procedure on the one hand nor introducing the whole law of England on the other, but putting the colony in the same position as if it had been founded on the 25th July, 1828. The law enacted in the colony includes:

1. Laws and Ordinances made by the Governor and a nominee Council established by Royal Warrant coming into operation in 1825 under the authority of 4 Geo. IV., c. 96, continued by 9 Geo. IV., c. 83.

2. Laws made by the Governor and a Legislative Council, one third nominee, two thirds elective, established by 5 and 6 Vict., c. 76. The Constitution and powers of the Council were affected by 13 and 14 Vict., c. 59.

3. Laws made by the Queen and a Legislative Council (nominated), and Legislative Assembly (elective), established by 18 and 19 Vict., c. 54 (empowering the Queen to assent to the New South Wales Act, 17 Vict., No. 41).

4. Orders, Rules, and Regulations made by various authorities in pursuance of powers conferred by the Legislature of the Colony.

New South Wales has never been a member of the Federal Council of Australasia.

Tasmania.

Although the commission of Governor Phillip included the territory of Van Diemen's Land, there was no settlement there until the arrival of an expedition under Lieutenant Bowen, on September 12th, 1803. Bowen was commissioned “Commandant of the Island of Van Dieman” by Governor King of New South Wales; and in February, 1804, the island was made a Lieutenant-Governorship under New South Wales. For some years it was treated less as an integral part of New South Wales than as a dependency of that colony. The Act of 1823, which established a Council in New South Wales to make laws for that “colony and its dependencies,” authorized the establishment of a Supreme


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Court of Judicature for Tasmania, with an appeal to the Governor of New South Wales. This power was exercised on October 13th of the same year. Section 44 of the Act empowered the Crown to erect Van Diemen's Land into a separate colony independent of the Government of New South Wales, and to commit to any person or persons within the island of Van Diemen's Land such and the like powers, authorities, and jurisdictions as might be committed to any person or persons in New South Wales. On December 3rd, 1825, the island was proclaimed a separate colony, and the appropriate legislative and executive authority established. By the Australian Courts Act, 1828, provision was made for the government of Van Diemen's Land identical with that made for New South Wales (q.v.), including the provision for the introduction of the Laws of England in the administration of justice. A Charter of Justice, dated March 4th, 1831, was granted under the powers of the Acts of 1823 and 1828. When the representative principle was introduced into New South Wales in 1842, all that was done for Van Diemen's Land was to make permanent the arrangements of the Act of 1828 and to enlarge the number of members of Council (see 5 and 6 Vict., c. 76, § 53). The island was, however, embraced in the constitutional arrangements of the Act of 1850 (13 and 14 Vict., c. 59), and that under that Act acquired a Legislative Council, one third nominated and two thirds elected, with the power to alter its own Constitution. This power was exercised by 17 and 18 Vict., No. 17, passed on October 31st, 1854 (confirmed by 25 and 26 Vict., c. 11), and a Legislative Council and Legislative Assembly, both elected, were substituted for the old Legislative Council. The new Legislature began its first session in December 2nd, 1856.

The colony was an original member of the Federal Council of Australasia (constituted by 48 and 49 Vict., c. 60), and has remained a member ever since.




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Victoria.

The Colony of Victoria was established by separation from New South Wales on July 1st, 1851, under the provisions of 13 and 14 Vict., c. 59, § 1, and was upon that day duly proclaimed by the Governor-General. Thereupon the authority of the Legislative Council of New South Wales over the colony ceased and determined. The law of the colony includes:

1. Laws and Ordinances of the Legislative Council of New South Wales up to July 1st, 1851, which by the Act were continued in operation in the colony until such time as the Governor and Legislative Council of Victoria should see fit to repeal or alter them.

2. From July 1st, 1851, to March 20th, 1856, Laws and Ordinances of the Governor and Legislative Council of Victoria (one third nominated, two thirds elected).

3. From November 21st, 1856, Laws made by a Legislature consisting of Her Majesty, a Legislative Council, and a Legislative Assembly (both elected), established by 18 and 19 Vict., c. 55, empowering Her Majesty to assent to a Bill as amended, passed by the Governor and Legislative Council, entitled “An Act to establish a Constitution in and for the Colony of Victoria.” This Act was proclaimed in the colony on November 23rd, 1855, and thereupon came into force.

4. Orders, Rules, and Regulations made by various authorities in pursuance of powers conferred by the Legislature of the Colony.

5. Statutes of the Federal Council of Australasia since 1886.

Queensland.

The Moreton Bay District of New South Wales was by letters patent proclaimed a separate colony under the name of Queensland on the 6th of June, 1859, in pursuance of a power contained in 5 and 6 Vict., c. 76, §§ 51 and 52; 13 and 14 Vict., c. 59, §§ 34 and 35; and 18 and 19 Vict.,


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c. 54, schedule 1, § 46. The law of the colony therefore includes:

1. The Ordinances and Statutes of New South Wales up to the date of separation so far as not varied or repealed by the Legislature of Queensland.

2. The Statutes passed by a Legislature consisting of the Governor, Legislative Council, and a Legislative Assembly established by an Order in Council of June 6th, 1859, validated and effectuated by 24 and 25 Vict., c. 44.

3. Orders, Rules, and Regulations made by various authorities in pursuance or powers conferred by the Legislature of the Colony.

4. Statutes of the Federal Council of Australasia since 1886.

South Australia.

In 1834 Parliament was persuaded to sanction an experiment in free colonization, and on the 28th of December, 1836, under the powers contained in the 4 and 5 Will. IV., c. 95, His Majesty proclaimed “The Province of South Australia.” The Act specially exempted the province from the laws and jurisdiction of any other part of Australia. The law enacted in the colony consists of:

1. Ordinances or Acts of Council passed from December 28th, 1836, up to and inclusive of the year 1843, by a Council consisting of the Governor and four official members constituted under the authority of 4 and 5 Will. IV., c. 95, and 1 and 2 Vict., c. 60.

2. Ordinances or Acts of Council passed from the year 1844 to the 21st of February, 1851, both inclusive, by a Legislative Council consisting of the Governor, three official and four non-official members, constituted under the authority of 5 and 6 Vict., c. 61.

3. Ordinances or Acts of Council passed from the 3rd of October, 1851, to the year 1856, both inclusive, by the Governor and a Legislative Council of twenty-four members, eight nominated by the Crown and sixteen elected, constituted under Ordinance No. 1 of 1851, pursuant


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to power given by the Imperial Statute 13 and 14 Vict., c. 59.

4. Acts passed from 1857 inclusive down to the present day by the Parliament of South Australia constituted under the Constitution Act No. 2 of 1855-6, which Act itself was authorized by 13 and 14 Vict., c. 59, the “Act for the better government of Her Majesty's Australian Colonies.”

5. Orders, Rules, and Regulations made by various authorities in pursuance of powers contained in these Acts.

South Australia in 1888 became a member of the Federal Council of Australasia, and sent delegates to the session of 1889. No law affecting her was passed, and she ceased to be a member before the next session.

Western Australia.

The Colony of Western Australia was declared a British Colony by settlement on May 2nd, 1829, and the first governor entered upon his government on June 1st, which is saidnote to be the date of the introduction of English law. The law enacted in the colony consists of:

1. Laws, Institutions, and Ordinances made by persons appointed first by Order in Council of December 29th, 1831, under 9 and 10 Geo. IV., c. 22. The power of appointment was continued from time to time by other Acts, and the “Persons” were increased in number and became a “Legislative Council.” A non-official element was introduced in 1839, and in 1868 a representative element. This Legislature began to exercise its powers at the commencement of 1832 and continued until the end of 1870.

2. Laws made by the Governor and a Legislative Council (one-third nominated and two-thirds elected) established in 1870 by Ordinance of the Council last mentioned (Act No. 13, June 1st, 1870) under the authority of 13 and 14 Vict., c. 59, § 9.




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3. Laws made by the Queen with a Legislative Council and Legislative Assembly established by 53 and 54 Vict., c. 26 (empowering the Crown to assent to Western Australian Constitution Act, 1889, passed by the Legislative Council).

4. Orders, Rules, and Regulations issued under the authority of the Ordinances or Acts.

5. Since 1886 Acts of the Federal Council of Australasia.

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