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

Abstract

ABSTRACT The first part of this paper examined the background to and conduct of a case called Symons v Morgan before the Supreme Court of Van Diemen’s Land. Symons appears to be the first case in which a colonial court asserted jurisdiction to invalidate a colonial ‘statute’ on the basis that the legislation concerned contravened the colony’s constitution. The Supreme Court claimed the jurisdiction as a matter of inference. There was no imperial or colonial legislation expressly granting such a power, nor any judicial authority – whether colonial or imperial in origin – supporting the Supreme Court’s conclusion. The second part of this paper analyses the responses of the colonial government to the Symons judgment, and consequently the responses of the imperial government and Parliament to those colonial initiatives. The actions of the imperial government and Parliament show acceptance of the principle that colonial courts could review the validity of colonial legislation.