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The Boothby case


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Howell, PA 1966 , 'The Boothby case', Research Master thesis, University of Tasmania.

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ln 1860-61 Mr Justice Boothby, of the Supreme Court of South Australia incurred the wrath of the province's Governor and politicians when he maintained that colonial enactments were ineffectual and void if the Governor's assent to them had been given contrary to statute or to royal instructions, if the enactments contained provisions repugnant to basic common law principles, or if they contained provisions repugnant to imperial statutes applying to South Australia. Boothby's view enraged, in particular, a powerful group of speculators who had secured the passage of Real Property Acts. These Acts had provided for the issuance of indefeasible titles to real property and had cheapened and expedited transfers of land.
Boothby's persistence in insisting that the local government and legislature must exercise their powers according to law twice led to the legislature's addressing the Queen for his removal. Three Secretaries of State for the colonies declined to advise the Queen to comply with these addresses on the ground that the Judge had not been proved guilty of misbehaviour that would justify his removal. At length, in 1867, the South Australian Governor and Executive Council invoked a 1782 statute, known as Burke's Act, and removed Boothby from the bench for alleged judicial misbehaviour. Boothby appealed to the Queen in Council. Though his appeal probably would have succeeded, he died before it was set down for hearing by the Privy Council's Judicial Committee.
Meanwhile, the imperial government had sought to solve the confusion about South Australia's laws by securing the passage of four validating statutes. The most important of these measures was the Colonial Laws Validity Act of 1865, which A. V. Dicey, in his "Law of the Constitution", called "the charter of colonial independence". It enacted that a colonial statute was not to be void because a governor had contravened his instructions in assenting to it. Colonial legislatures were given, and were to "be deemed at all times to have had", power to constitute and reconstitute courts of justice and regulate their procedure, and power to make laws regulating the constitution, powers and procedure of the legislature, provided that the forms prescribed for passing such Acts were observed. Moreover, the Act provided that colonial enactments were no longer to be judged void on the ground of "repugnancy to the law of England". This abolished a constitutional rule that had prevailed since the middle ages. All that was left of that ancient tradition was the validating Act's prescription that a colonial enactment repugnant to an imperial statute applicable, by express words or necessary intendment, to the colony, would be void to the extent of the repugnancy.
The Boothby case raised issues of great constitutional significance; for example: the role of colonial judges as agents for the enforcement of imperial policies, and the consequent tardiness in conceding such judges that independence from executive power which had been secured for the English judiciary by the Act of Settlement; whether royal instructions issued to a governor bound him with force of law; whether the monarch was obliged to comply with addresses for the removal of a colonial judge; and whether the governor and Council in a colony possessing responsible government could invoke Burke's Act to remove a judge holding office "during good behaviour".
Because an understanding of such issues, which go to the very roots of English constitutional law and imperial practice, is essential for an understanding of the Boothby case, this thesis is introduced by an essay on judges in relation to executives and legislatures in the British tradition.

Item Type: Thesis - Research Master
Authors/Creators:Howell, PA
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