On the Origins of Invalidation of British Colonial Legislation by Colonial Courts: The Van Diemen’s Land Dog Act Controversy of the 1840s–Part One

Abstract

By 1865 British Imperial governments had accepted that colonial courts had the authority to invalidate colonial statutes which contravened the relevant colony’s constitution. This situation arose notwithstanding the lack of any express grant of such jurisdiction to colonial courts in Imperial or colonial legislation. This paper evaluates the first instance of a colonial court asserting that jurisdiction, during the Dog Act crisis in Van Diemen’s Land (Tasmania) in the 1840s. Part one of the paper charts the background to, conduct of and judgment in the relevant litigation. The second part, which will appear in a future issue of this journal, explores the consequential attempts of the colony’s Governor to remove the judges from office and to re-enact the invalidated colonial law. The suggestion made is that the Dog Act controversy provides considerable insight into how, despite the absence of any explicit statutory grant of such jurisdiction, the power of judicial review of colonial legislation by colonial courts became established as an orthodox element of British colonial constitutional law in the latter nineteenth century.