1 January 1809 Ellis Bent was appointed Deputy Judge Advocate. He had the power to hear criminal and civil cases and sat in a court with six military officers where majority verdicts were recorded. The separation of executive powers from the judicial was only partially realised and the Deputy Judge Advocate's commission made him subordinate to the Governor whose orders he was obliged to obey.
Bigge's "Report on the Judicial Establishments of the New South Wales" recommended that an Attorney General be appointed to be present all cases for trial after preparing indictments. (1) Bigge's proposals were incorporated into the 'New South Wales Act' 1823 (4 Geo IV c.96) , and the first Attorney General (Saxe Bannister) was appointed in 1823. The Attorney General, who assumed the duties of the Deputy Judge Advocate, was the main legal adviser for the Crown, and was to draft legislation and act as counsel in criminal and civil cases.
The duties of Attorney General regarding the instigation of criminal prosecution were modified by 'The Australian Courts Act', 1828 (9 Geo. IV c. 83) (2) . The Attorney General defined his role as i) deal with all criminal prosecution and prepare material for them ii) to answer all questions on matters of law from magistrates or the Governor, and iii) to prepare regulations, proclamations, and other papers for the Governor. (3)
The inauguration of self-government for New South Wales in 1856 altered the Attorney General's status from that of a government official to a Portfolio position. At the same time a Parliamentary Draftsman was appointed to serve as an officer of the Attorney General.
On 13 February 1866 responsibility for the Police Magistrates and the Courts of Petty Sessions was transferred from the Colonial Secretary to the Attorney General and the Solicitor General. (4) However, this was just one of several changes to the administration which occurred prior to the establishment of the Department of Justice and Public Instruction at the end of 1873.
On 3 December 1873 a resolution to establish the Department of Justice and Public Instruction was passed in the Legislative Assembly (5) The Department was charged with control and supervision of the offices of the Supreme Court, the Sheriff, District Courts, Quarter Sessions, Clerks of Petty Sessions, Police Magistrates, and the Prisons Department, the Council of Education, and other educational establishments. The Attorney General continued to be responsible for the Crown Solicitor, Parliamentary Draftsman, and Quarter Sessions whilst the Minister for Justice was took charge of the administration of all other courts including petty sessions.
On 1 August 1901, the Department of Attorney General and the Department of Justice were formally amalgamated into The Department of Attorney General and of Justice (6).
(1) J.T. Bigge 'Report on the Judicial Establishments of New South Wales' (Bigge Report Volume 2) Sydney, 1823 p58.
(2) HRA Series I, Vol. ,XV, p. 99
(3) HRA Series I, XIV Vol. pp. 372-3.
(4) NSW Government Gazette 13 February 1866 p. 453
(5) NSW Government Gazette , Vol II 1873 p.3447.
(6) NSW Government Gazette , 1 August, 1901 p. 5931.
Returns of the Colony (Blue Books) 1856 - 1857 (4/251-290) and Public Service Lists , 1858- 1960. Sections Attorney General and Justice.McMartin, Arthur. "Public Servants and Patronage", 1786-1859. Sydney, SUP, 1983 (AO729).
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