4-273 (Original)

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This section contains three substantive declarations: - (1) That all the laws of England then in force shall be applied, so far as they can be, in the administration of justice. (2) When any doubt shall arise as to whether any law applies to the colony, the Governor, with the advice of the Legislative Council, is to declare whether it extends to the colony or not, and to limit and modify such law as might seem expedient. (3) Before the Governor makes such declaration the Supreme Court shall as often as any doubt shall arise upon any proceeding before it adjudge and decide as to the applicability thereof.
Upon this section three views may be taken: - First. That it operates to make "all" laws and statutes then in force in England applicable for all purposes, irrespective of their nature, and including statutes which would not be held to be in force in any colony, e.g., those of local policy and application. This extreme view is overruled by Lord Chancellor Chelmsford in Whicker v. Hume, and by Lord Romilly, M.R., in the same case [7 H.L.C., 124]. The opinion of the Chief Justice of New South Wales [Sir Francis Forbes] in 1836 was to the like effect, as follows: - "This section is affirmative of the text law as it is laid down by Sir W.
Blackstone and other elementary writers, and as it has been received and acted upon by the courts of England, at least ever since the resolutions of the Privy Council in 1722 [2 Pr. Wms 75]. It has always been, and must I contend, always be, a preliminary point to adjust, whether the Act of Parliament intended to be applied is applicable to the condition and circumstances of the colony, whether its provisions are adopted to the status personarum actually existing in the colony, into which it is transplanted. To maintain a contrary doctrine - to hold that Parliament intended to enforce the whole mass of English laws, the laws of an old and settled society which have grown out of occasion, during a long course of years, and which are become more refined and complicated than the laws of any other country in the world, to apply all these laws at once to an infant community without limitation or restraint is a proposition much too inconvenient in its consequences to be perfectly just in its principle." [R. v. Maloney, Legge 74, p. 77.]
Second. This, the narrowest view, that the section only introduced such laws as were requisite for the administration of justice,. is thus stated by Chelmsford L.C. in Whicker v. Hume [7 H.L.C., 124 at 151].
"What is the Act of Geo. IV? It is an Act 'to make better provision for the administration of justice', and for that purpose a court is established. The greater part of the Act consists of regulations and rules for the government of that court". The Lord Chancellor then states the provisions of this section with reference to the introduction of the laws of England; [273] and proceeds, "and then it provides for ordinances being made in doubtful cases, to say whether the law shall extend to the colony or not. . . Now, it would be a most extraordinary thing that this provision should apply to those general laws to which the argument of the appellant seeks to apply it (i.e., all those general laws which are in force in a settled colony, according to the principles hereinbefore stated), and that the colonists of New South Wales should not at all know under what law they were living, until they had brought an action and until in the course of that action they had ascertained the decision of the judges, that the particular law about which they were ignorant was really applicable to the colony. I consider that there is a limitation with regard to the particular laws, which are referred to by this Act of Parliament; and that it applies to laws for the administration of justice in the courts of New South Wales, that if any question arises as to the laws which are applicable to the modes of proceeding in the courts there, the judges are to decide upon that question incidentally arising in the course of the trial of any information or action brought before them whether the law is or is not applicable to the colony."
This expression of opinion was not necessary for the decision of the case, and was not expressly concurred in by the other law lords who gave judgment in that case.
The Lord Chancellor here considers that the sole object of the statute is to make further provision for the administration of justice, and that section 24 was passed to introduce the law, so far only as it related to the practice of the courts, but a glance at the statute shows that other matters of equal importance, such as the appointment of a Council, and conferring legislative authority on that body occupy fully one half in number of the sections. This 24th section is, in position, wholly unconnected with that part of the statute which deals with the Supreme Court and the administration of justice. The sections dealing with that latter subject are similar to, and in fact re-enactments of, the provisions of 4 Geo. IV c. 96, which contains no clause similar to this one. If this section related exclusively to the administration of justice in the Supreme Court, it would be an additional and new provision and (like the 10th section) would have been placed in an unequivocal position.
But assuming that this narrow interpretation of the Lord Chancellor is correct, the limitation of the power of the court to decide upon the applicability of any law regarding procedure, in cases where doubts arose on a trial, &c., would be redundant and unnecessary; for it would be the proper province of the court to decide thereon, and would hardly require an express legislative enactment. It could not be supposed that it would be as proper for the Governor and Council considering their military and naval professions, and vocations to pass an opinion upon a law regulating technical practice. But, regarding the section as one dealing not with procedure only, but with substantive law, the limitation imposed upon the court, to decide only when the question arose during a trial, &c., was most proper; because otherwise it might well claim a general legislative authority in all cases whatsoever, equal, if not superior, to that conferred upon the Governor and Council. Further this is a constitutional statute, and from its very nature ought to receive a most liberal interpretation. '[Per Hargrave, J., in R. v. Valentine, 10 S.C.R. (L), at 130].
Third view, which is the one now adopted. [274]
This section was in fact an addition to and improvement on the legislative powers conferred by the statute 4 Geo. IV c. 96. By it all the laws of England are declared to be in force, so far as the same can be applied, that is, "can be reasonably applied", which in the opinion of Knight Bruce, L.J., lets in all those considerations which guide in the ascertainment of laws in a settled colony, Whicker v. Hume.
This question of applicability is a pure question of law, McHugh v. Robertson [II V.L.R. 414].
It has been already stated that the question of the introduction of any particular portion or principle of English law must be determined by ordinance, judicial determination or statute, and the remarks by Lord Watson in Cooper v. Stewart [14 App. Cas. 292] have been quoted as indicating that in the case of judicial decisions, principles of English law existing at the time of the foundation of the colony may at any time subsequently be held applicable, where the altered conditions or growth of the colony render them suitable though they were unsuitable to its infancy. But where, by statute, a date has been fixed absolutely, as the point of time at which such portions or principles of English law are applicable, the courts are bound to take their stand at the line so drawn and at the time so fixed, and to view the question of applicability and general suitableness of the law from that particular standpoint only, and no subsequent expansion of the population wealth or commerce of the colony can be relied upon as making any principle of law applicable to the altered condition of the colony if it were not so at the date determined. .
The true effect of 9 Geo. IV c. 83, s. 24 is therefore, that it introduced all the laws of England into New South Wales that could be reasonably applied to that colony in 1828 and not so far as they can be reasonably applied to that colony when the question arises.
The practical effect of this section was to make, for such purposes, the Colony of New South Wales a settled colony, having its date of foundation fixed at the date of the passing of that statute. The beforestated general principles would then operate to ascertain what particular laws and statutes were in force.
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