The Francis Forbes Society for Australian Legal History

The Origins and Development of the Protective Jurisdiction of The Supreme Court of New South Wales


This paper is a detailed examination of the historical development of New South Wales’ mental health laws and of the Supreme Court’s Protective Jurisdiction, written by a former Justice of the Supreme Court of NSW. Philip Powell AM QC covers the laws applicable in the young colony leading up to the consolidated and revised version of The Lunacy Act 1898 (NSW), which remained in force, with some amendments, until 1958. He argues that its replacement, The Mental Health Act 1958 (NSW) made only cosmetic changes until 1970 when the Office of the Protective Commissioner was created. Powell then covers changes in the law relating to mental health from 1982, when he began his term in the Protective Division of the Supreme Court of New South Wales, and his own activities in this respect. He examines the impact of the Guardianship Act 1987 (NSW) and the Mental Health Act 1990 (NSW) in detail. The concludes with a list of reported and unreported judgments of the Protective Division.

Table of Contents

Foreword by The Honourable R S McColl AO
The Royal Prerogative
Its nature / How invoked and exercised
Those the subject of the Prerogative
Idiots / Lunatics – Subsequent developments
Involuntary detention and treatment
The first lunatic ayslum / Subsequent developments to 1788
The founding of the colony
The inherited law / Governor Phillip’s commission / The first courts
Early examples of the exercise, in the colony, of the Prerogative
The Second Charter of Justice – a Supreme Court – No jurisdiction in lunacy
The Third Charter of Justice – The Supreme Court – Jurisdiction in lunacy
The Australian Courts Acts 1828
Involuntary detention and treatment
Statutory changes, meantime, in England / The law in the colony until 1843 / The Dangerous Lunatics Act 1843
The Lunacy Regulation Act 1853 (UK) and its effects
Involuntary detention and treatment – Further statutory developments in New South Wales
The Lunacy Act 1878 (NSW)
The Lunacy Act 1890 (IMP) – The distinction between unsoundness of mind and mental infirmity established
The Lunacy Convention Act 1894 (NSW) – The distinction between unsoundness of mind and mental infirmity adopted
The Lunacy Act 1898 (NSW)
Legislative amendments in New South Wales 1898-1953
Early anti-schizophrenic (major tranquillizing) drugs
The Mental Health Act 1958 (NSW)
The Mental Health Act 1958 (NSW) – 1970 amendments – the Office of the Protective Commissioner created
The position, in law and in fact, in NSW as at 1970 and after
The position, in law and in fact, in NSW in 1982
My representations to the government – only partly successful
The government’s 1983 ‘Mental health package’
The Mental Health Act 1983 (NSW) – Only partly proclaimed – the consequences
The Protected Estates Act 1983 (NSW)
The effect of a management order / Enduring powers of attorney / Improvements in procedure
The Guardianship Act 1987 (NSW)
The Tribunal / Guardianship orders / Power to make management orders
The Deveson Committee – Appointment, report and recommendations
The Mental Health Act 1990 (NSW)
Definitions – ‘Mental illness’, ‘mentally disorderd person’, ‘mentally ill person’ / Involuntary detention for treatment – when permitted / Community counseling orders / Community treatment orders / Medical treatment / Provisions as to powers of Supreme Court
Summary – powers of Supreme Court in its inherent jurisdiction and/or under various statutes
Appendix – Judgments of the Protective Division 1982-2000

Of interest...