AGY-3659 | Law Commission

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The Law Commission was established on 16 September 1848 to investigate and report upon the judicial system in New South Wales and Port Phillip.(1) The Commission was “to make enquiry into the constitution, pleadings, practice, and proceedings” of the Supreme Court, and into the constitution of the Courts of Quarter Sessions, Circuit Courts, and Courts of Requests in the Colony and recommend alterations, extensions or improvements to the judicial system.(2) The Commission was the first Royal Commission of Inquiry issued by the Government of New South Wales.(3) The need for judicial change increased throughout the 1840s as settlement grew, particularly in Port Phillip and Moreton Bay. Therefore, the Law Commission was not only to investigate the judicial system based on the requirements of areas already settled, but they were to also considered areas that had yet to be settled. On 16 September 1848, the following persons were appointed Commissioners: Chief Justice of the Supreme Court Sir Alfred Stephen; John Nodes Dickinson and William Montagu Manning, both Justices of the Supreme Court; Attorney General John Hubert Plunkett; Solicitor General William Foster; Edward Broadhurst and Thomas John Fisher, Barristers-at-Law; James Norton and John Gurner, Attorneys and Solicitors of the Supreme Court.(4) For the Commission to sit, three or more members needed to be present, including one Justice. George Kenyon Holden, an Attorney and Solicitor, was appointed Secretary to the Commission.(5) The judicial system at the time of the Commission consisted of the following: 1) Supreme Court – a Chief Justice and two Puisne Judges at Sydney and a Resident Judge at Melbourne for the Port Phillip District. The Sydney Judges held Circuit Courts twice a year at Goulburn, Bathurst, and Maitland and there was no Circuit Court at Port Phillip; 2) Courts of Quarter Session – held in New South Wales proper with an elected Chairman, and located at Sydney, Parramatta, Goulburn, Bathurst, and Maitland. The Court had a Criminal Jurisdiction concurrent for the most part with that of the Supreme Court, but trying minor cases only; and adjudicating on Appeals from Summary Convictions or other decisions of single Justices or Courts of Petty Sessions, on Road Cases, and other matters referred to Quarter Sessions by various enactments of the Legislature. In Port Phillip, the Court of Quarter Sessions sat only in Melbourne, had the Resident Judge as its Chairman, and left all Criminal Cases to the Judge in the superior Tribunal; 3) Court of Requests – located in the County of Cumberland with a Barrister as Commissioner. Court of Requests had jurisdiction over cases up to ten pounds but in Cumberland the amount was thirty pounds. There was a similar Court in County Bourke in Port Phillip; 4) Courts of Petty Sessions – held by two or more Justices throughout the Colony and exercising under the recent Small Debts’ Act a similar jurisdiction to that exercised by the Commissioners in the Counties of Cumberland and Bourke in cases up to ten pounds. These Courts also adjudicated under the Masters’ and Servants’ Act and in various other matters confided in the Summary of Justices in Courts of Petty Sessions.(6) The Commission was granted full power and authority to examine witnesses and call before it any officer, clerk or minister of the courts, and to order any rolls, records, orders, books, papers, or other writings belonging to the courts.(7) The Commission was instructed to report within six months although their authority was to exist for one year. The Commission appointed Sub-Committees to investigate the many aspects of the judicial system. The Commission circulated printed questions to members of the Legislative Council, the Legal Profession, and the Magistracy to “elicit information and opinions from the better informed of the Community”.(8) The Commission stated that change to the judicial system would not have been necessary if they were only investigating populated areas. However, because of increasing settlement in “every direction in the interior”, change would be necessary.(9) The Commission was aware of the tight financial constraints on the judicial system and that any changes suggested by the Commission could not require additional funding. The Commission examined and rejected the adoption of the County Court system recently established in England because of the expense and the impossibility of escaping local influences and suspicions.(10) The Commission was more supportive of the system of Assistant Barristers established in Ireland. Under this system, Barristers were essentially travelling Commissioners of Requests for civil matters but also exercised criminal jurisdiction when assisting Justices in their Courts of Quarter Sessions.(11) In June 1849, the Law Commission’s Report was placed before the Legislative Council. The Report made recommendations on how to improve the judicial system in both New South Wales and Port Phillip and the Commission’s numerous recommendations included the following: 1) a fourth Judge be appointed to the Supreme Court in Sydney and this Judge, or the four Judges in rotation, should hold a Circuit Court twice a year at Brisbane. The Committee deemed it inefficient to base the fourth Judge at Brisbane for the entire year; 2) circuit Courts to be held three times a year instead of twice a year, and for the Courts to be extended to include sittings at Yass, and either Murrurundi or Tamworth. The Commission also suggested the possibility of a Circuit Court at Parramatta; 3) all present business of Quarter Sessions, except Civil and Petty Criminal Cases, to be conducted in the Supreme Court; 4) a second Judge be appointed at Port Phillip and for the Supreme Court to perform duties in Melbourne, including cases above Ten Pounds currently conducted by the Court of Requests; extension of Circuit Courts in the Port Phillip District; and for the Monthly Petty Sessions in Port Phillip to have jurisdiction over minor criminal cases.(12) The Commission’s recommendation for the appointment of an additional Judge in New South Wales was not implemented.(13) The Commission’s Report noted information on other aspects of the judicial system, such as Pleading and Practice in Criminal Cases, had been gathered and the Commission would await instructions on whether to proceed further with these investigations.(14) ENDNOTES
1. NSW Government Gazette No.105, 22 September 1848, p1261; Report from Law Commission in NSW Votes and Proceedings of the Legislative Council 1849, vol.1, p655.
2. NSW Government Gazette No.105, 22 September 1848, p1261; Report from Law Commission in NSW Votes and Proceedings of the Legislative Council 1849, vol.1, p655.
3. Historical Records of Australia, series 1, vol.26, p641, note 45.
4. NSW Government Gazette No.105, 22 September 1848, p1261.
5. Historical Records of Australia, series 1, vol.26, p640.
6. Report from Law Commission in NSW Votes and Proceedings of the Legislative Council 1849, vol.1, p656.
7. NSW Government Gazette No.105, 22 September 1848, p1262.
8. Report from Law Commission in NSW Votes and Proceedings of the Legislative Council 1849, vol.1, p655; questions circulated and replies can be found in Replies to Circulars 1848-49, CGS 1392, State Records reference number 4/428-29.
9. Report from Law Commission in NSW Votes and Proceedings of the Legislative Council 1849, vol.1, p656.
10. loc. cit.
11. ibid., p657.
12. ibid., pp659-662.
13. Smith, ML, ‘The early years of equity in the Supreme Court of New South Wales’, The Australian Law Journal, October 1998, vol.72, p804.
14. Report from Law Commission in NSW Votes and Proceedings of the Legislative Council 1849, vol.1, p663.