An Unruly Child: A History of Law in Australia

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The centenary of federation, re-examination of the Constitution, exploration of a Bill of Rights and High Court decisions such as Mabo have combined to revive interest in Australia’s legal history. No common law system can be understood without knowledge of its history. Kercher’s thesis is that, legally speaking, Australia began creatively enough, became an abject copier of the English and is now becoming more creative again. This is a provocative re-examination of our legal history, appearing at a time when Australians are reconsidering both their past and their future. The Hon. Justice Michael Kirby AC CMG President of the New South Wales Court of Appeal

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U N R U LY C H I L D A history of law in Australia

BRUCE KERCHER

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Publication of this work was assisted by the Law Foundation of New South Wales

© Bruce Kercher 1995 This book is copyright under the Berne Convention. No reproduction without permission. All rights reserved. First published in 1995 Allen & Unwin Pty Ltd 9 Atchison Street, St Leonards, NSW 2065 Australia National Library of Australia Cataloguing-in-Publication entry: Kercher, Bruce. An unruly child: a history of law in Australia. Includes indexes. ISBN 1 86373 891 6. 1. Law—Australia—History. I. Title. 349.94 Set in 10/12 pt Goudy Old Style by DOCUPRO, Sydney Printed by SRM Production Services Sdn Bhd 10 9 8 7 6 5 4 3 2 1

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C ONTENTS CONTENTS

Abbreviations

viii

Preface Introduction: English flotsam

ix xi

PART I FRONTIER

1

LAW

1 Aboriginal subjects of the Crown British subjects or enemies?

3 5

Burton’s tears

12

The word of Aboriginal subjects

15

Aboriginal rights to land

17

2 The contradictions of convict law

22

Freedom and the lash, 1788–1820

22

The impossibility of strict law, 1820–1840

30

The end of convict liberty, 1840–1868

40

From autonomy to official control

42

3 Amateur law at the frontier

43

Law in the bush

43

Civil courts in an uncivil society

45

Amateur law on the penal islands

59

Moreton Bay and Port Phillip

60

The western frontiers

61 v

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PART II IMPERIAL

ORTHODOXY, 1820–1900

4 Innovation smothered? Formal changes from the 1820s to the 1850s

65 67

A new Britannia in another world 1823: the first great change

67 69

1828: closer into the arms of English law Votes for vulgar low-bred fellows

73 76

5 The power of the judges: judicial review and the attachment to England Freedom of the press

82 82

Judicial review and the accumulated wisdom of ancestors Writs and wigs

86 94

Boothby’s lasting contribution to colonial independence

97

6 Repugnant legislation: law making from 1824 to responsible government

103

Dangers in the bush Paternalist labour law

103 109

Reducing the cruelty of debt law Mass law breaking by the squatters

112 118

7 Colonial freedom: law making between responsible government and 1900 Colonial independence

124 124

Selectors and speculators Gold and democracy

126 131

Corporate crashes Danger on the railways

134 135

The rights of women A new province for law and order

137 144

Racial attitudes enshrined in law New principles in new bodies

147 150

From external to internal constraints

153

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PART III FEDERATION:

DEFERENCE AND INDEPENDENCE

155

8 Creeping towards legal independence, 1901–1960

157

Three cheers for the queen and three for Australia Cultural cringe and the myth of unity

157 162

Bending the law on burnt feet Keeping out the Privy Council

169 171

Arbitration and the empire of strict law Remnants of imperial restrictions

174 175

9 The rebirth of Australian legal doctrine, 1960–1995 The slow steps to independence

177 177

Legalist Chief Justices Lionel Murphy

179 184

End of empire: the Australia Acts 1986 The new makers of Australian law

186 188

Mabo and the beginning of justice Five phases of Australian law

195 202

Notes and sources

206

Index

243

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ABBREVIATIONS ABBREVIATIONS

AC AGPS AJLS ALJ ALJR ALR AONSW App. Cas. ASC CLR CUP ER FLR HRA HRNSW JRAHS LBC LRQB MUP NSWLR OUP SASR SCR SUP THRA UNSWP UQP UWAP VLR

Appeal Cases Australian Government Publishing Service Australian Journal of Law and Society Australian Law Journal Australian Law Journal Reports Australian Law Reports Archives Office of New South Wales Appeal Cases Consumer Sales and Credit Law Reporter Commonwealth Law Reports Cambridge University Press English Reports Federal Law Reports Historical Records of Australia Historical Records of New South Wales Journal of the Royal Australian Historical Society Law Book Company Law Reports Queen’s Bench Melbourne University Press New South Wales Law Reports Oxford University Press South Australian State Reports Supreme Court Reports (NSW) Sydney University Press Tasmanian Historical Research Association Papers and Proceedings University of New South Wales Press University of Queensland Press University of Western Australia Press Victorian Law Reports viii

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P REFACE PREFACE

In the past decade a number of people have discovered that there is something wrong with the official story of Australian law. Students have always been taught that it is English law with minor adaptations to meet local circumstances, but historians have recently found that in many areas there was a distinctive quality to Australian law. I found the same in my work on the records of the first civil court in New South Wales. Many of its decisions owed much more to local circumstances than to the received legal traditions of England. The puzzling question is when did this local quality disappear? The more closely I looked at this question, the more the date of strict English orthodoxy seemed to slip away into the future. It certainly seemed to have arrived by the time I sat in the basement of Sydney University Law School 20 or 25 years ago, hearing academics treat the decisions of English courts as seriously as if they were Australian. This book chases the sometimes elusive local quality in Australian law, from 1788 until the High Court’s 1992 Mabo decision and its aftermath. I have tried to draw together others’ discoveries of Australian legal distinctiveness and blend them with some of my own. My own detailed work has been on only a small proportion of the total history of law in Australia, and this book therefore is heavily dependent on the work of others. It does not attempt to provide a comprehensive history of law in Australia. Instead, it is about the contest over its nature, the struggle between local and imperial officials, and between popular ideas and official law. It includes constitutional history where that had an influence on the major theme, but as far as possible the concentration is on civil and criminal law, the law that affects ordinary people. The study of the history of Australian law is in a very healthy state. When I began work on this book I found that much more had been published on the subject than I had anticipated. There are about 100 books in which the ix

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central theme is the relationship between Australian society and law, and many times more articles. They have changed over time, from biographies and institutional histories by academic lawyers such as C. H. Currey and J. M. Bennett, to broader work by historians such as John Hirst. The latest of these are Mark Finnane’s Police and Government (1994), which argues for the distinctive quality of policing in Australia; and a collection of essays edited by David Philips and Susanne Davies, entitled A Collection of Rogues? Crime Law and Punishment in Colonial Australia. One peculiarity of interdisciplinary work is that it is often hard to find because it is scattered across libraries and journals, but there should be a stronger focus in the new Journal of Australian Legal History, published at the University of Adelaide. There is still a lot to do. There is more in this book about New South Wales than the other states and colonies. This imbalance is partly because it was the whole of British Australia for so long, but largely because most of our published legal history has concentrated on it. Comparatively little has been written about some of the other colonies and states, particularly Tasmania and the north and west of Australia. The Northern Territory University’s legal history course, which concentrates on the territory’s own history, is an encouraging sign. We also know less about the history of twentieth-century law than that of the nineteenth. As well, there is much less in this book about popular visions of law than I would have liked; the pluralist vision of law used by Paula Byrne and others needs to be applied across Australian history. We also need to learn much more about legal influences between the colonies and other common law countries, especially those that border the Pacific. This is a fruitful area of research, which has barely commenced. One major aim of this book is to point out omissions in our knowledge. Fields as broad as this continue to change. Since the book was written, Anthony Mason has retired as Chief Justice of the High Court; we must wait to see what effect this will have on the shape of Australian law. One of the court’s last decisions before his retirement was to confirm the validity of all but one section of the Native Title Act. Henry Reynolds has also published a new book, Fate of a Free People; it may cause us to reconsider the legal position of Tasmanian Aborigines. I am indebted to the people whose works appear in the notes at the end of the book, particularly Alex Castles whose enthusiasm is so infectious and whose Australian Legal History has been a central resource. Without Mark Tredinnick there would have been no book; the original idea was as much his as mine, and he encouraged me at every stage. Frank Carrigan, Lyn Bovard, Malcolm Voyce, Ellen Goodman, Gwen Lawrence and Tony Blackshield have all been very helpful, especially Frank, who read the whole manuscript when it was at a very messy stage. I also thank David Boyd, artist-in-residence at Macquarie University’s School of Law, for his generous permission to reproduce the painting on the cover. x

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I NTRODUCTION English flotsam

INTRODUCTION

When the British waded ashore at Sydney Cove in 1788, they carried English law into an utterly remote land. From that time onwards, their law spread across Australia, stripping away the rights of its original occupants, tearing the flesh from the backs of the convicts who had endured the voyage from England, and helping to establish the most distant outpost of western civilisation. As its influence radiated out from the new towns, it imposed its fundamentally English values on people whose ancestors had been in undisturbed occupation of the land for tens of thousands of years. Everyone who arrived in 1788 or later—the British, Irish, Americans, Chinese, Pacific Islanders, Greeks, Vietnamese, etc.—was assumed to accept English law. Even the Scots, with their own distinct legal traditions, were under English law once they arrived in Australia. From January 1788 this imported law took a central role in Australian history, shaping its basic relationships while bending to the demands of the vast dry continent. According to the eighteenth-century jurist William Blackstone, there were three kinds of British colonies, settled, conquered and ceded, and English law was dominant in each of them.1 Settled colonies were those in which the land was assumed to be empty and without an owner, a terra nullius. In them, most but not all of the laws of England were taken by the settlers as their birthright. All English laws that were ‘applicable to their own situation and condition of any infant colony’ were exported there. Those that were ‘neither necessary nor convenient’ were not in force. The process of legal adoption was less automatic in conquered and ceded colonies, which took only those English laws that parliament provided for them. Despite fierce Aboriginal resistance in many places, the British government did not change its initial assumption that all of the Australian xi

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colonies were gained by settlement rather than conquest. When it was first occupied, New South Wales covered territory that later became Victoria and Queensland, each of which took New South Wales law with it when it subsequently separated from the original colony. The same applied in Tasmania, which was part of New South Wales until 1825. It retained its original name of Van Diemen’s Land until 1856, not long after it finally cast off its penal status. Western Australia and South Australia were each established separately, with their own independent adoption of English law from the time of their establishment in 1829 and 1836, respectively. In all of these colonies, the bulk of English law was assumed to apply under Blackstone’s settlement classification. This assumption had devastating consequences for the Aboriginal people whose lands were invaded. Blackstone’s multi-volume Commentaries were the most important law books carried on the First Fleet in 1788. First published twenty years earlier, they were the most convenient summary of the scattered sources of English law. More than that, they soon acquired such authority that they were treated as reverently as any superior court judgment. In the frontier period at Sydney Cove when the only lawyers in the colony were convicts, the possession of the latest edition of Blackstone was almost as good as a qualification in law. The laws of England in 1788 were deeply influenced by tradition. There were two sources of law, the judges and the parliament. Judge-made law, the common law and equity, was built up by the application of precedent on precedent, slowly changing shape like an ancient coral reef. Each decision was based on what had been done in the past rather than by explicit reference to what a changing society might need. The judges considered past decisions and applied them by analogy to the case before them. When they wanted to change the law, they tended to invent fictions to avoid the appearance of change. This allowed flexibility, but the price was increasing unreality and complication. New decisions grew on the bodies of the old, adding complexity to fantastic complexity in this profoundly conservative legal tradition. In theory, the parliament at Westminster was supreme and could pass Acts or statutes to alter or abolish the rules of common law and equity. When it did, the judges were supposedly powerless, although they could bend the meaning of legislation through idiosyncratic interpretation. The supremacy of parliament meant that the system carried its own potential for reform, but there were no serious structural changes until the nineteenth century. Most eighteenth-century lawyers and parliamentarians shared a deep seated belief in the perfection of the law. To Blackstone, the judgemade law of England was also ‘the genuine offspring of that spirit of equal liberty which is the singular felicity of Englishmen’. This belief, or at least the assertion of this belief, was used in political debates until well into the xii

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nineteenth century.2 A touchstone of the English, it was often more than rhetoric. The extreme flexibility of the common law system was what allowed it to last so long in an apparently unchanged way. The vast bulk of judgemade law was so broad and embodied so many traditions that it could be used by radicals as well as conservatives. Like the use of fictions, its ambiguities left room for adaptation to new circumstances. It could not be entirely malleable, however; if it were, it would not have been a system at all. Judge-made law was like a language in which many things could be said, but it did have limits. It papered over contradictions, speaking in universal terms while being the expression of a deeply stratified society. The common law’s most basic value was liberty, which Blackstone chiefly defined in terms of freedom to hold property. To him, the primary merit of property was the opportunity it gave its holders to aid others. In his Lockean world, the object of government was the protection of property, land above all else. What was liberty for some, however, was often deep cruelty to others. The criminal and civil law of eighteenth-century England used extreme methods to protect property, not that Blackstone saw them in that way. The eastern half of Australia was occupied in order to protect English property. Most of the convicts who were transported here had been found guilty of property crimes. In many cases these were simple crimes, such as when female servants stole their mistresses’ clothing, or men robbed pedestrians in the streets of London. Others were Irish political prisoners and those whose crimes had been based on protest or the assertion of their own dissenting views of what was lawful behaviour. Blackstone assumed a paternalist model, which was already crumbling when he wrote. Under it, the strong protected the weak and were owed duties of obedience in return. Servants obeyed their masters who cared for them, and the same basic relationship applied across society, between husbands and wives, parents and children, squires and the poor. As new agricultural methods were introduced, industry developed and people moved to the cities, the old local, personal, class relationships broke down, and the old paternalist laws were repealed. The ideology of the free market had a corrosive effect on the traditions of England. Desperate measures were taken to shore up the increasingly archaic paternalist ways; the criminal law became bloodier. Parliament introduced more and more capital offences as it attempted to reinforce order. At the same time, it attempted to impose new versions of property on a reluctant population. What had been a custom was often declared to be a crime, subject to the death penalty. In these cases there was a fatal clash between conflicting visions of legal right. The worst example was the Black Act of 1723, under which 50 distinct new capital offences were created, the main xiii

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ones concerning the wearing of disguises while hunting animals. Others included the plundering of wrecked vessels and even smuggling, which were seen by those who engaged in them and by the common people as more than simple criminality; they were traditional customary practices. The same applied to poaching and those who breached the game laws.3 The members of parliament may have controlled the official version of the law, but they did not always control the popular visions of it. Popular resistance was sometimes enough to change the shape of official law. In 1772 parliament repealed a series of paternalist marketing laws which had attempted to ensure that the poor had access to cheap bread. The new approach was based on laissez faire principles, but whenever there was a grain shortage the common people rioted in protest against the new laws. As E. P. Thompson shows, their aim was to restore the old principles, and in at least one case they were successful even at the official level. The trial judge in R. v. Rusby (1800) held that while the statutory marketing laws had been repealed, the old paternalist common law was still in force. This decision was barely within acceptable limits of judicial decision making, since it was so obviously against the intentions of parliament when it repealed the marketing statutes. In effect, the new laissez faire principles usually applied by the end of the eighteenth century, but in this case social pressures were released by the application of old values. The initiative was taken by the people, and it had an effect on the formal law. This principled form of civil disobedience was also common in America and, as will be shown, in the Australian colonies.4 When they had no representation in parliament, this was the only way in which ordinary people could express their views of law. It did show, however, that law making was not always imposed from above. In some cases, law breaking was a creative form of law making. The brutality of the criminal law in this transitional period in English society was most evident when a prisoner was condemned to death. After placing the black cloth on his head, the judge stated horrible words such as ‘The law is that thou shalt return from hence, to the Place whence thou camest, and from thence to the Place of Execution, where thou shalt hang by the Neck, till the body be dead! dead! dead! and the Lord have Mercy upon thy Soul’.5 This hideous sentence could be imposed even though the defendants had no right to a lawyer or even to give evidence in their own cases. They could speak in court, but their words could only be persuasive, not decisive evidence. After sentencing, condemned prisoners could only plead to the king for their lives. Many of the convicts who were transported to Australia had been through the terrifying ceremony of being sentenced to death. Having received the mercy of the crown, they were then sent to the penal colonies for periods between seven years and life. xiv

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This brutal suppression of criminals and dissidents was not the only social effect of eighteenth-century criminal law. Douglas Hay has shown that it also played a central role in reinforcing the crumbling social bonds of paternalism and deference, through the intervention of individual paternalists to save those who had been condemned. The weak British state enforced law through extremely strong punishment, but the penalties were often not carried out. When people were saved from the gallows, the law acquired an appearance of mercy and justice while retaining its terrible threat. The bond between land holders and common people was thus strengthened by the combination of fear and gratitude.6 The civil law of England was just as cruel as the criminal law. In the late eighteenth century, as in every period since then, the main role of the civil law was to enforce debts, which it did with extreme force. There were two main kinds of remedy against defaulting debtors: the seizure of property and imprisonment. Imprisonment for debt was available to creditors regardless of the reasons for non-payment, and even before the creditor proved that the money was owing. It did not matter that debtors were too poor to pay what they owed; their creditors had a right to have them thrown into gaol. Bail, insolvency and bankruptcy all allowed the debtor to be released, but many poor debtors fell through the cracks of this disorganised system.7 Once they arrived in gaol, debtors were able to buy as much comfort as they could afford. Those who were wealthy could bring in food, prostitutes, their own furniture or whatever else they wished. Many of them continued their ordinary occupation in gaol, earning enough to live on. In the great debtors’ prisons in London, imprisoned debtors could even pay a large fee to live in the Rules, an area outside the walls of the gaol, while remaining in formal custody. Poor debtors sometimes starved to death or died of disease or neglect. That was the fate of John Trivett only two or three years before the First Fleet left for Sydney. He had been confined in gaol for a year for a debt of about £35 and had slept on a damp stone floor for the whole winter, with only a piece of hop bag as bedding. By sleeping so long in his clothes, he had worn a hole in the shoulder of his coat, so that his skin was in direct contact with the floor. When he was healthy he had supported himself in gaol by blacking shoes and cleaning knives, but his illness, which was a ‘Cold and a Flux’, prevented him from earning a living and being able to afford a bed. The physician who attended him said that he had died of want, although the coroner’s verdict was that he had died ‘by visitation of God’. Subsequently, his room mate was required to live in their room with the body for several days until it was taken away for burial. This was only one of many deaths by malnutrition and inadequate housing mentioned during a parliamentary inquiry into imprisonment for xv

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debt in 1791. Overcrowding, starvation and insanitary conditions may have been common in late-eighteenth-century London, but they can rarely have been so directly related to the law. Trivett was killed by English law, just as certainly as those who were hanged. At common law, debtors had no right to maintenance after it was proved that they owed a debt. Some callous judges seemed to relish the rule: . . . if [an imprisoned debtor] has no goods, he shall live of the charity of others, and if others will give him nothing, let him die in the name of God, if he will, and impute the cause of it to his own fault, for his presumption and ill behaviour brought him to that imprisonment.8

Although debtors had a statutory right to maintenance, it was too costly to obtain for those who needed it most. Many of them were forced to rely on charity, but the largest of the charities insisted on the integrity, sobriety and industry of the debtor before giving relief. Some survived only because of the compassion of other poor debtors. The debt-recovery system shows the nature of freedom under eighteenthcentury English law, the way in which it allowed people to operate with little interference from the state. The law allowed creditors to choose when to imprison their debtors, just as it allowed wealthy debtors to go to gaol to avoid paying their debts and live there as they wished. Some property, such as land and money, was exempt from direct seizure on behalf of creditors. In this way, land was placed above such mundane matters as commercial obligations, while traders retained the right to threaten their debtors with imprisonment. Such were the compromises between the most influential classes of England. The prison keepers were also autonomous, running the prisons with little control by the government or the judges. This complex system of interlocking liberties was central to the old corruption, under which personal and public interests were thoroughly mixed. It was the expression of a form of liberty, the right to manipulate the law to one’s own advantage. Like most abstract liberties, this took no account of the variations in its actual availability. The poor, like the rich, were entitled to live in splendour while in gaol. The prison officials owned their offices, which they milked for profit. They made their money on a fee-for-service basis and by selling goods and services to their inmates. The keepers of the great prisons earned thousands of pounds a year. When they wished to retire, they could either sell their position or lease it and live on the rent. This fee system was an expression of the entrepreneurial nature of eighteenth-century English government. Most officials earned their money through fees, including the judges. The more cases they heard, the greater was their income. This kept down the costs and size of government, but at the expense of vast confusion, corruption and inefficiency. The character of English law in these years was partly determined by the xvi

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mass-produced nature of court actions. As Francis points out, there were only twelve superior court judges, each with a load of 10 000 cases per year. They coped with the work by relying very heavily on formality. Legal decisions were made by reference to strict compliance with legal form rather than the substance of the law or justice, especially in such common actions as debt recovery. Plaintiffs who complied with formal requirements, such as swearing that a debt was due, were able to obtain remedies automatically. The autonomy of creditors was partly a result of these structural restrictions.9 Other aspects of English common law were equally characterised by formality and complexity, adding to the incomes of lawyers. Simply commencing litigation required expert advice; for example, the courts could not hear a case unless the defendant agreed to appear. Appearance could be coerced by outlawry or a process called distringas, each of which was complex and uncertain in its effect. These intricacies were partly caused by a competition for business between the courts. There were three major common law courts in London, the King’s Bench, Common Pleas and Exchequer. Each had its own procedures, which had their origins centuries earlier. Originally the courts had different functions, but in the competition for fees each sought to expand its jurisdiction to cover the most lucrative business. This also led to the creation of fictions. In the King’s Bench, for example, the ordinary process of litigation always began with a fictitious allegation of trespass, no matter what the plaintiff was really claiming.10 The mass-produced and formal nature of the common law often led to injustice, but its rigidity and harshness was supposed to be softened by equity. Equity (or chancery) was a separate legal system with its own courts. Based on a standard of conscience, it applied when the common law remedy was deemed to be inadequate. It grew from the individual decisions of the Lord Chancellors and retained (as it still does) a religious tone. Its concentration was on the substance of the cases rather than their form, and it proceeded by hand-crafted rather than mass-produced methods. The guiding principle was the conscience of the Lord Chancellors; unconscientious dealings, such as the breach of a trust owed by an adult to a child, should have led equity to intervene. However, it operated in only a few areas and did nothing about the plight of many victims of common law rules, such as debtors and servants. By the late eighteenth century this fountain of justice had become very polluted even within its acknowledged areas of activity. If the common law was sufficiently confused and complex to be described as a mist, equity was an impenetrable fog, as Dickens said in chapter 1 of Bleak House (1853): Never can there come fog too thick, never can there come mud and mire too

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deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds, this day, in the sight of heaven and earth. [The members of the High Court of Chancery are] mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goathair and horsehair warded heads against walls of words and making a pretence of equity with serious faces, as players might . . .

This was expressed best by an equity judge, Lord Eldon, who commenced a judgment in 1805 by saying ‘Having had doubts upon this will for twenty years there can be no use in taking more time to consider it’.11 The separation between law and equity is only one example of the diversity in eighteenth-century English law. The common law was only one of numerous competing systems, although the most prominent. Minor local courts were also scattered throughout the country, with varying origins and differing legal principles. Many of them decided cases by reference to general notions of equity and good conscience rather than the strict law. Further diversity came in the law governing marriages and succession, which were left to the canon law in ecclesiastical courts. Debt recovery was divided between the common law courts and the separate insolvency and bankruptcy commissioners. This pluralism even extended to the three equal superior common law courts. In the countryside, local law was administered by amateur justices of the peace, who decided criminal cases and issued licences. There was no single, central source of legal power, whether in the courts, government administration or the police. The fee system and a fear of standing armies and centralised police meant that power in eighteenthcentury law was as widely spread as it was in English society generally. It rested largely in one landed social class, but its members were scattered across the country. The vast complexity of these decentralised and overlapping laws and courts was not diminished until the great law reforms of the mid-nineteenth century. By then Jeremy Bentham and others had invented a new language to analyse the law. Rational, utilitarian logic was applied to a system that had developed by the accretion of custom and precedent. The study of law began to be referred to as a ‘science’, under which ‘defects’ could be discovered and the law reformed. Others, such as the prison reformer John Howard, talked in terms of Christian compassion for the victims of the law.12 For more than 50 years there were heated debates between the old and the new as English law was adjusted to changed commercial and social conditions. These began before the First Fleet left England but had little effect for decades. One apex of these debates, because of its comprehensiveness, was the xviii

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great speech in parliament by Henry Brougham in 1828. It did not cover equity, the criminal law, commercial law or land law, yet it takes up more than 60 pages of Hansard. The speech led to a Royal Commission on the Common Law, which issued six reports between 1829 and 1834. Eventually nearly all of his recommendations became law. Brougham’s aim was to find defects in the law, not to celebrate its virtues. He ridiculed Blackstone’s view that English law embodied perfection and liberty. Brougham believed that the common law was riddled with unnecessary fictions and archaic forms, all of which increased the incomes of lawyers and impoverished their clients. He also argued that the law was frequently inconsistent, and claimed that differences based on custom and tradition, such as those between Welsh and English law, were unnecessary. On land law, for example, he stressed that the nature of legal title and the way it was conveyed varied even from manor to manor. There was not just one law of England but a series of legal systems with varying standards. Brougham wanted unity rather than pluralism, and simplicity rather than complexity in legal pleadings, conveyancing and wills. He attacked the rule of evidence, which prevented parties from being witnesses in their own cases, and criticised ‘that awful Privy Council’ for its amateurism, and amateur local magistrates for their bias: ‘There is not a worse constituted tribunal on the face of the earth, not before the Turkish cadi, than that at which summary convictions on the game-laws take place; I mean a brace of sporting justices’.13 Brougham’s criticisms were largely confined to the structures of the common law rather than its substance. He said nothing, for example, about the inequalities of master and servant law or the subordinate position of married women. Many other laws were changed by other reformers, beginning with the gradual reduction in capital offences.14 The criminal law was slowly moved from a concentration on physical punishment to an attempt to reform the hearts of the criminals. Bureaucracy replaced the fee system, and public and private interests were gradually separated. This led to the loss of local autonomy, and a centralisation of power. Eventually even the transportation of convicts was abolished. The nineteenth century was a time of vast law reform, but the old customary values of the common law were never fully eradicated. The law exported to Australia was a store room of archaic values, sometimes only thinly disguised by later rationalisations. The common law, which became more dominant as a result of the consolidation of jurisdictions during the nineteenth-century reforms, reflected the society in which it had evolved, but not all values were represented equally. It was based on the values of the gentry, and only began to represent other views as social power shifted. Even then, the values of the poor were only faintly echoed in it. Popular ideas rarely xix

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reached the level of official law. England was far from a democracy even by the middle of the nineteenth century, so the voice of ordinary people was also unlikely to be heard in legislation. The relationship between law and society in eighteenth- and nineteenthcentury England was so close that the two cannot be separated. Each was part of a single whole, and causal influences from one to the other are often impossible to trace. Its contents were (and still are) closely connected to the needs and power relationships of earlier generations. The way in which basic common law was transmitted, through adherence to precedents, and the authority it carried, ensured that it was a powerfully conservative force in society. This was not always a negative force; some hard-fought liberties were enshrined in it and could be used to restrain the activities of later powerful figures. Nor was the content of the law a simple reflection of political or social power. It had its own values, some of which were deeply ingrained. There were elements of Christianity in it, particularly in equity, and basic rules of fairness, such as the right to be heard at a trial. These were passed from generation to generation. What is the essential characteristic of late-eighteenth-century law? Was it a tool of the ruling class, used to justify its repression, or was it the repository of liberty, containing values that could be used by all? In fact it was both. Parliamentarians and judges frequently acted in their own class interests, but they had to do so within the limits of the law. Law is not merely a bludgeon for beating people; it is a two-edged sword. Creditors were able to use its cruelty to coerce payment from charities and the friends of debtors, and land holders were able to use the terrors of the criminal law to obtain both the fear and gratitude of those beneath them. Each group was constrained, though, by centuries of legal tradition, and the contents of that tradition were subject to heated debates. The conflicts between groups were often conducted in the language of the law, which had an effect on their outcomes. For example, if those who were charged with criminal offences or sued for debt could establish a flaw in the procedures used against them, they were released. At a broader level, the law’s traditions could be used to press for more democratic forms of government and legal administration, and, through them, for changes to the substance of the law. This happened in both Britain and Australia. The law was written in universal language, and sometimes that could be used by the weak against the powerful.15 This was the ambiguous and shifting legacy inherited by the people who began the occupation of Australia in 1788. It was riddled with contradictions and compromises, between pluralism and its universalising tendencies, cruelty and liberty, justice and strict law. The aim of this book is to study the effect of this inheritance in Australia. Colonial law offers an ideal site for us to examine the relative influences xx

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of legal tradition and local social and economic conditions on the final shape of law. Like the nature/nurture debate in the sciences, this is a perennial debate that is the basis of much of our legal history. If the common law and the many other legal systems of England grew out of distinctively English social conditions, how did it operate in the necessarily different conditions in the Australian colonies? The colonial state was more centralised from the beginning; the aristocracy was represented in Australia only by some of the governors and a few insolvent ‘black sheep’ who ran away from disgrace at home; there was a constant presence of Aborigines; the law needed to be adapted to fit penal societies; and land ownership was much more widespread than in Britain. The judges and law makers who came here may have perceived themselves to be British, but was the legal tradition they brought with them sufficiently powerful to impose itself on these conditions? Were there sufficiently universal themes in the law for it to survive in an essentially unaltered form? Were people sufficiently nostalgic for England (or sufficiently unimaginative or weighed down by authority) to bring its law in all its complexity and idiosyncrasy, even if it was unsuitable? More broadly, if the law emerges organically from a society, how does it operate in a transplanted and derivative society? These questions are all the more tantalising because English law in 1788 was on the verge of change. The inherited tradition was itself shifting during the process of its continuing acceptance and adaptation in the Australian colonies. The shift from a pluralist to a unitary view of law was particularly important. The other significant change was the gradual increase in colonial legal autonomy. The local legislatures and judges eventually reached independence from imperial control, but only gradually and at different times. Their first problem was to adapt English law to the presence of Aborigines and to the needs of penal colonies.

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In 1811 an Aboriginal sailor made a complaint to Governor Macquarie, the paternalist head of the colony of New South Wales. He claimed that he had not been paid as a crew member on the last voyage of the King George. Macquarie sent the case to a magistrate, Alexander Riley, with a request that it should be very carefully considered. Riley did so, but dismissed the claim. This was not necessarily a racist decision, since the outcome is likely to have been because of the law’s bias against workers, whatever their race. The sailor had joined the voyage on the basis of receiving a share of its profits. However, as was common in these cases, the cargo barely covered the men’s expenses, and they had therefore worked merely for their keep. Under these agreements the crews were speculators rather than employees, and the speculation often ended in failure. The claimant had also left the ship early, at Port Dalrymple in Van Diemen’s Land, which also deprived him of his right to recover any money. Local law followed an odious English common law rule that prevented recovery by those who failed to complete any part of their obligations even if they had done most of what they had promised. This is the earliest surviving record of a civil action by an Aborigine in an Australian court. In reporting the case, the Sydney Gazette noted on 23 February 1811 that the colonial government was determined ‘to afford every protection and support to the Natives that they may stand in need of; and particularly to encourage them to useful industry by requiring a scrupulous observance of every contract in which they may be interested’. The policy was one of both paternalism and assimilation. The claimant in this case was one of the few Aborigines who acted in accordance with the hopes of the imperial government, humanitarians and Christian reformers. 3

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By joining the crew, he had shown an interest in British life and had to be protected. The unusual way in which the case reached court, and the choice of court to hear it, both indicated that Aborigines were not treated in the same way as white colonists. If the claim had been brought by an Englishman, he would have done so directly in the colony’s superior court, the Court of Civil Jurisdiction. The magistrates usually heard criminal actions, but Governor Macquarie issued proclamations (which were of dubious imperial legality) giving them power over civil cases as well. It is also likely that the Aborigine’s claim was for more than 40 shillings, the upper limit on the civil power of the magistrates’ courts. These were the courts of the poor and of those whose legal claims were imperially suspect. Under English law, convicts were unable to sue, but they were allowed to do so in the magistrates’ courts of New South Wales. This case shows that Aborigines were released from a similar legal limbo in the same way. He was not the first Aborigine to adopt the commercial activities of the colonists nor the first to complain to the colonial authorities over a civil wrong committed against him. Previous complaints had been met more informally. When a seaman destroyed an Aboriginal canoe, for example, he was ordered to give its owner a complete set of clothing. In another case, an Aboriginal healer claimed £5 for treating a spear wound, on the ground that a white surgeon would have charged £10. After threatening to complain to the governor, he was given a suit of clothes and a bottle of rum.1 The ambiguity of the legal position of Aborigines was also evident in the opinions of Richard Atkins, the second Judge Advocate in New South Wales. In giving his view of the legal position of the Aborigines who were attacking white settlers at the Hawkesbury River, he stated the dilemma that would nag black and white relationships for much of the nineteenth century. He said that Aborigines were within the pale of H.M. protection; but how can a Native, when brought to Trial, plead Guilty or Not Guilty to an Indictment, the meaning and tendency of which they must be wholly ignorant of? Plead they must before Evidence can be adduced against them, and Penal Laws cannot be stretched to answer a particular exigency.

Nor could they give evidence in court, he said. The only practical course, claimed Atkins, was to pursue and punish them when they deserved it.2 The dilemma was that Aborigines were apparently British subjects, but they could not be prosecuted or protected in practice because of doubts about their understanding of English law. The assumption of both local officials and those in London was that New South Wales had been acquired by peaceful settlement of an empty land, rather than by conquest or cession by the original occupiers. From the colonists’ viewpoint this was merely a 4

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technical distinction, but from the Aborigines’ viewpoint the difference was crucial. In a settled colony, they became British subjects from the moment the occupation began. The notion that the land was empty implied that any people who had previously wandered on it had done so without rights or laws.3 Conquest and cession, however, are consistent with the idea that the original possessors of the country had held their land through some notion of right, and that this had been wrested from them or given up by them. If the Aborigines had been classified as enemies in a conquest rather than subjects in a settled colony, they might have been accorded some dignity and a morally strong claim to retain some of their pre-existing rights. One makes treaties with one’s enemies, not with fellow subjects. None of this was very clear at the time the occupation of Aboriginal Australia began in 1788. It took a century for the terra nullius doctrine to be firmly established as the legal explanation of the occupation of Australia. The legal status of Aborigines was the subject of passionate debate among the colonists and imperial officials for a hundred years.

BRITISH SUBJECTS OR ENEMIES? The legal position of Aborigines was determined slowly and hesitantly, through both physical and verbal conflicts. The imperial authorities who established the legal foundations of New South Wales seem to have assumed the settlement theory and thus that Aborigines were British subjects from the start. Like most legal questions, this appears to have been an afterthought in the rush to establish the colony. The First Fleet sailed only nine months after the decision to establish New South Wales.4 In their haste, for example, the imperial officials failed to pass a statute to provide for a civil court. The criminal law was the centre of their legal attention, and only its court had parliamentary approval. Like the civil law, the legal position of Aborigines was determined by royal decree rather than statute, but even that was ambiguous. The instructions given to the first governor, Arthur Phillip, ordered him to secure the colony against Aboriginal attacks, but said that You are to endeavour, by every possible means, to open an intercourse with the natives, and to conciliate their affections, enjoining all of our subjects to live in amity and kindness with them. And if any of our subjects shall wantonly destroy them, or give them any unnecessary interruption in the exercise of their several occupations, it is our will and pleasure that you do cause such offenders to be brought to punishment according to the degree of the offence.

Similar instructions were given in 1805 to those who established Hobart Town in Van Diemen’s Land. The limit on the friendship to be shown towards Aborigines was shown by the fact that Phillip was told to grant 5

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land to the colonists. There was no reference to the rights of its prior occupiers.5 From the beginning then, imperial law placed Aborigines in an ambiguous position. Their land could apparently be taken without compensation, yet they were to be protected. The attitude was one of the paternalist care that might be given to inferiors, rather than a recognition of the right to be defended as British subjects. If Aborigines were compliant, they were to be protected, but if not, Phillip was authorised to see to the defence of the colony. There was no recognition that the Aborigines had their own notion of right, that from their viewpoint they were entitled to defend themselves against invasion. The cultural arrogance of the British was evident even before the First Fleet sailed. The paternalist attitude of the governors’ instructions was continued by the governors themselves. Phillip did not treat Aborigines as subjects of the Crown, with the basic notions of equality and rule of law that that implied. He captured some of them in disastrous attempts at assimilation and ordered punitive expeditions against the groups that made doomed efforts to match guns with spears. Military and police raids against dissenting Aboriginal groups lasted from the eighteenth to the twentieth centuries, regardless of the legal status of these subjects. These raids had commenced by December 1790.6 Under English law, groups of British subjects could not be punished for the actions of individuals, and there could be no corporal or capital punishment without trial except in self-defence or in the heat of battle in a period of martial law. Neither the theory of settlement nor those of conquest and cession justified the imperial and colonial attitudes to Aborigines. They were simply punished and occasionally protected, rather as a wayward nineteenth-century father might do, regardless of the formal law’s view of their status. This rubbery attitude to English law was common in the early colony, where local decisions frequently took the place of strict attention to English legal propriety. What is striking about the legal position of Aborigines, however, is that this uncertainty and failure to observe English law did not begin to be rectified until half a century after colonisation began. One of the most important issues concerned criminal liability for inter-racial clashes. Whites had been found guilty of murder of Aborigines as early as 1799, although they were not hanged. The uncertainty continued for another 40 years. On many occasions, white killings of blacks were ignored.7 In other areas of law, the primacy of English law was firmly asserted much earlier. A smokescreen of legal confusion and argument covered up a continuing pattern of killings at the frontiers of the Australian colonies. Each expansion of settlement was followed by the same tragic pattern: as they were pushed off their land, Aborigines sometimes replied with force, followed 6

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by unofficial and official massacres of Aboriginal family groups. The indigenous population of Australia fell from 300 000 to 50 000 in the first century of European occupation. At least 20 000 Aborigines were killed by white violence, about ten times the number of whites killed by blacks.8 The rule of law was tested at each stage of this expansion, and nearly always failed. Aborigines were placed in an impossible position by white law. When they responded aggressively, they were massacred by superior weapons and communications, or tried for murder. When they did not, they lost their land anyway and were assumed to have acquiesced in one of the largest land grabs in history. The most thorough official reaction to Aboriginal attacks was in Van Diemen’s Land, that land of extremes where bushranging began and convict discipline was carried so much further than elsewhere. The island’s name carries connotations of brutality towards convicts, but its Aboriginal inhabitants were much greater victims of British policies than convicts, partly because English law was looking the other way. Writing in 1836, Henry Melville described the rapid expulsion of Tasmanian Aborigines from their island, the most tragic story in Australian history.9 It commenced, he said, in 1824, and stock keepers were initially to blame. This was more than a disconnected series of raids and reprisals: each side killed the other, regardless of the English notion of individual responsibility. In effect, as Melville said, there was an unofficial war between blacks and whites in Van Diemen’s Land. In response to these ceaseless killings, the English solution of exile was suggested, but for the whole race of people, not for individuals, and supposedly for their protection rather than punishment as was the case in convict transportation. Exile was not carried out until after the demarcation proclamation of 1828, under which Aborigines were ordered not to enter settled districts. This cannot have been lawful by imperial standards, since it so obviously contradicted the liberties guaranteed by the common law. Later, a military and civilian line attempted to push the remaining Aborigines to a peninsula. This failed, but the enticements (and, possibly, trickery) of the humanitarian Protector of Aborigines George Robinson and others managed to gather together some of the Aboriginal survivors, who were then taken to Flinders Island. After that, a few were taken to the Port Phillip district, where some fell into further conflict with whites. More than a hundred Tasmanian Aborigines were buried on Flinders Island, a memorial to the failure of the law to protect British subjects. With the increase in violence in the 1820s, Governor Arthur, like David Collins almost at the beginning of settlement in Van Diemen’s Land, proclaimed that Aborigines were as much to be protected by law as whites. These proclamations were frequently ignored. In this colony it was blacks who were hanged after incomprehensible trials, not whites. In 1830 the 7

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imperial government reminded Arthur of his obligation to prosecute whites for maltreating Aborigines, but he responded by declaring martial law over the whole colony, giving a veneer of legality to the killings, and by planning to drive all Aborigines to one small area. He decided that it was unwise to emphasise that whites could be hanged for the murder of blacks. In doing so, he succumbed to local pressure, ignored his instructions and neglected the most basic rule in English law, that against murder. Arthur, no doubt, felt frustrated at being unable to stop the killings short of the destruction of the Aborigines. The conflict began with the forcible taking of Aboriginal land. This was the great wrong, and no solution was possible without official recognition of it, but such an acknowledgment was politically impossible. Local opinion governed the shape of official reactions, as it so often does. Arthur’s demarcation proclamations might have been unlawful by English standards, but they had the form of law. Even they did not justify the massacres, however. On this issue, as on so many others, local law differed from that of England, and the local people’s version of what was right conflicted with both. Here, the results were tragic. If it is correct that Aborigines were British subjects, the official and unofficial killings that took place in Van Diemen’s Land were mass murders except in cases of immediate self-defence or within the limits of martial law. Martial law was in force on the island at times, but even this had limits. A declaration of martial law was justified when ‘in time of rebellion the Crown might, for the restoration of peace, declare war, and exercise its severities, against rebels’.10 It was made when a rebellion was beyond the control of the civil authorities. The power to declare martial law because a rebellion existed was within the Crown’s prerogative, which the colonial governors assumed to themselves as part of the powers delegated to them by the Crown; it was simply the establishment of absolute and discretionary military power, overruling all ordinary law. The military commander took control over the area in which it had been declared, and over civilians who answered the call for assistance. The governors retained power to declare that it had ended, however. A soldier who disobeyed his orders was subject to military discipline, but there were few civil limits once martial law was proclaimed. In the same way, the governors, as commanders-in-chief in the colonies, undoubtedly had military control over their subordinates to whom they gave orders. In a martial law declaration by a governor, any statement that loss of life was to be limited could therefore have been only an exhortation as far as civil law was concerned, and not enforceable in the civil courts, at least when the acts were done honestly under the declaration. The soldier’s or civilian’s state of mind was the key point when considering attacks on non-combatants such as women and children. The killing of a young child, for 8

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example, could not be an honest act against a rebellion within the scope of martial law, and would be murder, punishable in the ordinary courts. Similarly, a captive rebel should not have been put to death without at least an informal military trial. The consequence was that martial law did not entitle the troops or settlers to whom it was directed to kill whatever Aborigines they came across. They were subject to military limits and, in some cases, to civil law as well. Obviously, if no declaration of martial law had been made, no soldier or settler could lawfully kill an Aborigine except in the act of self-defence. Given the excesses of killings and physical attacks on Aborigines, both under martial law and otherwise, it is clear that many settlers and soldiers were guilty of murder and assault against Aborigines. To reach that conclusion, however, it was first necessary to reach an authoritative decision on the legal status of Aborigines according to white law. The legal position of Aborigines was largely settled at an official level in the late 1830s, although it was still debated after then. The courts had to decide whether three kinds of acts were criminal: a white killing of a black; a black killing of a white; and a black killing of a black, even if in accordance with an Aboriginal notion of right. The latter was the most difficult problem. If that situation were covered by English law, so would the others. In the 1836 case of R. v. Jack Congo Murrell, the New South Wales Supreme Court had to decide whether it was murder for one Aborigine, Murrell, to kill another. Murrell’s barrister, Stephen, made a series of ingenious arguments in his defence. He claimed that the colony was not settled, because there were more Aborigines than colonists. Nor was it conquered or ceded, as Britain had never been at war with the Aborigines. Instead, the native population had its own laws, to which, strictly speaking, white people ought to be subject. Whites were bound by English law, Stephen said, because they were protected by it. By contrast, Aborigines were given no protection by European law: they were unable to give evidence as witnesses, they could not claim civil rights, and they could obtain no compensation for the land that had been torn from them. As a result they were not bound by white law. The unstated effect of Stephen’s arguments was that Australia was subject to a plurality of laws: that of the whites and those of the many different Aboriginal peoples. It is not surprising that the defence arguments were rejected by the Supreme Court. The Attorney-General made a simple reply: the law does not recognise any independent power in a British territory, and everyone within it is subject to British law and protected by it. In response to the political reality pressed by the defence, that Aborigines were being killed without protection, the prosecution simply put a formal version of the rule of law, that Aborigines were subject to legal protection. The Supreme Court 9

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found in favour of the Attorney-General, although by more elaborate argument. The main judgment in the case was written by Justice William Burton. According to his published reasons, he based the Supreme Court’s jurisdiction to try the case on several grounds: Aborigines were insufficiently strong to be recognised as free and independent tribes; a proclamation had laid down the limits of the colony; the British government had exercised rights over the territory ‘for a long period’; offences within the colony were punishable as they would be in England, so protecting the victim; and Aborigines were as entitled to the protection of law as if they had been white. Burton apparently had further grounds on which he decided the matter.11 He seems to have seriously considered the argument that Aborigines had their own legal system, but rejected it, concluding that they ‘had no law but only lewd practices and irrational superstitions contrary to Divine Law and consistent only with the grossest darkness’. He had been influenced by the missionary Threlkeld, whose sympathies for Aborigines were genuine, within the Eurocentric limits of nineteenth-century humanitarianism. Neither Burton nor Threlkeld was able to accept an idea of equality between the ideas of Aborigines and those of Europeans. Ultimately, Murrell was found not guilty on the facts, although he had been declared subject to British law. While this case seemed to settle the matter of the legal status of Aborigines, it was not accepted by Justice Cooper in Adelaide, nor by Justice Willis. Cooper advised that it was permissible to hang Aborigines without trial, although his view was later rejected by imperial officials, who said that it was murder to do so.12 Willis also rejected the imperial view, but in a way that was more sympathetic to Aborigines. John Willis was the resident New South Wales judge in Melbourne during the frontier period at Port Phillip, before Victoria became a separate colony. He should have been bound by the Murrell decision of his colleagues on the New South Wales Supreme Court. In the Bon Jon case in 1841, however, he said he strongly doubted that white law covered situations in which Aborigines took action against one another in accordance with tribal law. British law applied when a white killed a black or vice versa, but not, he seemed to argue, when a black killed a black. He said that this question affected ‘a vast and hitherto neglected, oppressed, and deeply injured multitude of the human race’.13 This attitude was based on the humanitarian view that had led to the abolition of slavery and which now promised to improve the position of native people throughout the empire. His address was as much a political statement as one of law. He called for a treaty with Aborigines to define their rights to protection and self-government. He was also concerned that Aborigines did not understand the proceedings under which they were tried. On another occasion, he 10

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visited an Aborigine in his condemned cell to make sure that he had understood the trial.14 Willis was the most important legal official in colonial Australia who took seriously the idea that Aborigines had their own laws and customs. He linked this to what he saw as their right to land. He rejected the terra nullius theory of the colony’s foundation, as well as those of conquest and cession. British title came in the same way as it did in America and New Zealand, by discovery and occupation of lands that were not in the actual possession of the natives. This settlement occurred without the tacit acquiescence of the Aborigines, who were a distinct people with their own continuing rights but who were dependent on the colonists for their protection. They were dependent allies rather than British subjects, Willis argued. In reaching these conclusions he referred to the view of Saxe Bannister, a former Attorney-General of New South Wales, who had wanted to write down Aboriginal law and direct the British courts to observe it. According to Willis, ultimate dominion rested with the British Crown, but that was consistent with the sovereignty of the original occupants, who could cede their land to the Crown but not to others. Here, in effect, was a forerunner of the High Court’s 1992 Mabo decision, reached 150 years earlier by an irascible judge in the bush town of Melbourne. Bon Jon was acquitted, and so it was unnecessary for Willis to reach a final decision as to whether it was murder for one Aborigine to kill another. Chief Justice Dowling in Sydney subsequently said that Willis was wrong to doubt whether an Aborigine could be tried for killing another Aborigine, holding that the issue had been settled in the Murrell case. Governor Gipps agreed with this, primarily on the ground that British law was the only recognised law in New South Wales. Stanley, the Secretary of State for the Colonies, in London, was content to leave the matter in the hands of the colonial Supreme Court rather than refer it to the British government’s legal officials. The Murrell principle had been affirmed and was later applied in Western Australia.15 The possibility of recognising Aboriginal versions of legal right then fell asleep and was not wakened for another century and a half. A great opportunity for justice had been lost. The Murrell principle was based on a unitary principle of law. Under it, there was only one law in Australia and that was British. That unitary view was a fiction here, just as it was in England. Aborigines continued to exercise their own methods of resolving disputes and to be bound by their own land laws, without interference from the colonial state or even its knowledge. There is, and always has been, a multiplicity of legal systems in Australia, regardless of the lack of recognition of that fact by the dominant European one. If Aborigines were subject to white law when they attacked one another, 11

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then they were clearly subject to it when they attacked whites, as even Willis acknowledged. This is shown by the number of Aborigines hanged in South Australia, where 22 of the 35 people hanged between 1836 and 1874 were Aboriginal. Public execution of Aborigines was continued there even after it was abolished for whites. The motive must have been as much to assure whites that the government was protecting them, as to deter Aboriginal attacks. These public hangings were popular: in 1842 thousands of people in Melbourne watched the execution of two Aborigines who had killed two white whalers. Hanging was also part of the official response to the undeclared war in Van Diemen’s Land, where the first Aborigine to be executed for the murder of a white died in 1825.16 For the native people of Australia, the primary effect of becoming British subjects was that they were thrust before the courts as defendants. Far from the law protecting them, it usually victimised them. Its main impact was to coerce them into obeying a law that they had not agreed to observe and which they often knew nothing about. The law of England grossly failed to give them the liberties which Blackstone had celebrated. When whites attacked blacks, they should have been equally subject to the criminal law. In 1837 Lord Glenelg, the imperial Secretary of State for the Colonies, made that clear when he told Governor Bourke that . . . all the natives inhabiting those Territories must be considered as Subjects of the Queen, and as within H.M.’s Allegiance. To regard them as Aliens with whom a War can exist, and against whom H.M.’s Troops may exercise belligerent right, is to deny that protection to which they derive the highest possible claim from the Sovereignty which has been assumed over the whole of their Ancient Possessions.17

Despite this, in New South Wales as in Van Diemen’s Land, the political situation so strongly affected the administration of the law that massacres often went unpunished. After Murrell, the legal position of the New South Wales Supreme Court coincided with imperial theory, but it was rejected by the squatters in particular. In the drama surrounding the Myall Creek massacre in 1838, Governor Gipps took the formal law of England at its face value and attempted to enforce the humanitarian policies of the then imperial government: he prosecuted a group of convict stock keepers for murder after the massacre of about 28 Aborigines.

B URTON ’ S TEA RS The Myall Creek massacre occurred outside the formal limits of settlement, near the present town of Inverell in northern New South Wales.18 This was part of the vast area of Australia that originally had been illegally occupied by squatters so that they could raise cattle and sheep. By the late 1830s the government had given official recognition of their presence on 12

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the land. There was never any doubt that the area was subject to the ordinary law. The squatters, who included some of the wealthiest people in the colony, dominated its Legislative Council. Most of them lived in or near Sydney and sent their convict servants to manage the stock on their runs. It was these servants (plus one resident squatter) who slaughtered the Aborigines at the Myall Creek station. The Myall Creek defendants were initially tried for the murder of one of the slain Aboriginal men, but were all acquitted at their first trial. It was conducted in a boiling atmosphere, which had been heated by the squatters’ newspaper, the Sydney Herald, whose editorials stopped just short of explicitly urging the jury to acquit the defendants regardless of the evidence, and just short of enticing mass murder. Two months before the first Myall Creek trial it complained that the government had been protecting blacks against whites but was failing to protect whites against blacks. Only whites were being prosecuted, not blacks, it claimed on 14 September 1838. The jury was the place for justice: It is their duty . . . to scan narrowly the particular circumstances of any case that may come before them; and to take care that where the aggression may appear to come from the blacks, they will not convict men who merely act in self-defence . . . it is for the Colonists to determine that they will not consign men to punishment who merely act on the defensive. The government, it is evident, will not, or cannot, protect the whites from the aggressions of the blacks—it behoves the former, therefore to protect themselves; and this they can most effectually do in the jury-box, by determining not to convict persons on charges originating in collisions with the blacks, except upon the most conclusive evidence of wanton cruelty. Let there be equal laws and equal justice.

This was disingenuous at the least, because there was no hint of selfdefence in the Myall Creek massacre. The whites simply rounded up a family group of men, women and children who had taken refuge on what they thought was a safe station, and killed them all. The second part of the passage, referring to ‘conclusive evidence of wanton cruelty’, went way beyond the legal notion of self-defence in any event. Nor did the Herald mention the underlying injustice, that the whites had taken the lands of the Aborigines by superior force and deprived them of the means of feeding themselves. It is clear that the editor’s aim was to influence the jury, as the editorial was published just a few days after the charges had become known in Sydney. He repeated the theme a month later on 15 October when he said that the colonists must engage in ‘passive resistance’ in the jury box, so that they could ‘rout the Glenelg minions’. The newspaper was even more extreme on the day before the first trial. Even though it claimed that it did not encourage the murder of blacks, its tendency was clearly towards that. On 14 November 1838 it repeated the 13

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assertion that the government was failing to protect whites and their property by refusing to prosecute Aborigines: Well, then, such being the case—what is to be done? We say, protect the white settler, his wife, and children, in remote places, from the filthy, brutal cannibals of New Holland. We say to the Colonists, since the Government makes no adequate exertion to protect you, protect yourselves; and if the ferocious savages endeavour to plunder or destroy your property, or to murder yourselves, your families, or your servants, do to them as you would to any white robbers or murderers—SHOOT THEM DEAD, if you can.

Once again the Herald had raised the atmosphere to hysteria: there were no white women or children near the Myall Creek station, and the Aborigines there were quietly seeking a sanctuary. The jury took the Herald’s hint and acquitted the eleven accused at the first trial, just as another jury did in similar circumstances in a Melbourne trial a few years later. One member of this first Myall Creek jury was quoted as saying ‘I look on the blacks as a set of monkies [sic], and the earlier they are exterminated from the face of the earth the better’.19 The prosecutor, Attorney-General John Plunkett, immediately moved for a new trial of the Myall Creek defendants on a second set of indictments, this time for the murder of a child rather than an adult. On the second trial, seven of the eleven original defendants were charged and this time all were found guilty. The new trial judge was William Burton, who had written the Murrell judgment. He left the jury in little doubt that he felt the defendants were guilty. He also rejected the defence of autrefois acquit, that the accused had already been acquitted on the same charge. This was a different charge, he said, even though the evidence was the same. Burton, who was a stern defender of English legal principles, was determined to see that the second trial was governed by traditional notions of the rule of law, regardless of local opinion. After three judges of the Supreme Court considered the defendants’ final legal arguments, Burton placed the black cap on his head; in tears,20 he sentenced them to death. Governor Gipps resisted immense public pressure in rejecting their pleas for mercy. After their final pleas had been heard, the condemned men confessed to their gaoler that they had killed the Aborigines but said that they had not been aware that it was against the law to do so, since it had been done so often before.21 They dropped together to their deaths. Roger Milliss shows that Governor Gipps’ political courage reached its peak in his refusal to show mercy to the Myall Creek murderers. After the second trial his Attorney-General failed to go on with the prosecution of the other four defendants. He claimed that evidence was required from an Aboriginal witness, who was not able to give evidence against them. This was despite the equal involvement of at least some of them in the same 14

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crime. The evidence was sufficient to hang the first seven and should have been enough to hang at least some of the rest. These men were extremely lucky that the political climate had been changed by the hangings and the press campaigns. More importantly, Gipps allowed an inquiry into a greater massacre to fade away into inaction for the same reason. In early 1838, some time before the Myall Creek murders, Major Nunn had led a troop of Mounted Police into the same region of New South Wales. They tracked down and killed perhaps 200 or 300 Aborigines, but none of the police was ever tried for the crimes. Nunn had been sent by Colonel Snodgrass, who was the military Acting Governor between the liberal regimes of Governors Bourke and Gipps. Snodgrass told Nunn to ‘use your utmost exertion to suppress’ Aboriginal attacks. These killings, then, had a smell of official sanction. There was no legal justification for the pursuit and killings that took place, because they were not done in self-defence and there was no martial law declaration. Under English law, Nunn had no more right to massacre a large group of Aborigines than to kill the same number of the underclass of London on suspicion that they might be thieves. However, while it was one thing to hang convicts for killing Aborigines, it was quite another to prosecute soldiers who had done the same in the course of their official actions. That was especially unlikely after the outcry over the hanging of the Myall Creek killers. These events show the limits of law. Gipps came to New South Wales with a personal and official commitment to improve relations with Aborigines. While this did not extend to the recognition of their land rights and autonomy, his policies did coincide with English law as interpreted by the judges of the Supreme Court. Aborigines were British subjects, as had been established clearly in Murrell and affirmed in the founding documents of both South Australia and Western Australia.22 As a result, it could be murder to kill them. In the late 1830s in New South Wales, most of the official legal actors agreed: the imperial government, the colonial Governor and the colonial judges. Even that rare coincidence of views was insufficient to enforce the law against the power of the squatters, which they exercised in their newspapers and in the Legislative Council. There was a dissenting colonial view of the rights of Aborigines, which was more powerful than the officials of the empire. These events prove that the law was not always better for being Australian rather than English. The frontier situation of a continuing land grab was accompanied by hideous justifications for hideous acts. Politics and financial self-interest determined expressions of right.

THE WORD OF ABORIGINAL SUBJECTS The Herald was right, although in reverse, when it pointed out that equality of law between blacks and whites existed only in theory. In practice, 15

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Aborigines were denied the right to give evidence in court because they were unable to make a Christian oath. This evidentiary rule could act against prosecutions of both whites and blacks. If a white person had been killed by Aborigines and the only witnesses were black, the killers could not be convicted. The same applied when whites killed blacks, as the failure to prosecute the last four Myall Creek defendants showed. When whites stuck together, their superior weaponry was matched by the legal tool of this rule of evidence and reinforced by the general cultural gap between blacks and whites.23 This evidentiary rule encouraged the continued reprisals between Aborigines and the colonists. It meant that retaliation was easier by direct action than by law. The bloodiest clashes in Australian history were between blacks and whites, yet even after the Myall Creek trials, relatively few killings by either side resulted in murder trials. The frontiers of Australia were largely lawless on the issue of inter-racial violence, and this rule was partly to blame. In 1839 the New South Wales Legislative Council passed an Act to admit Aboriginal evidence, despite the English common law rule against it. It was cautious legislation which required the corroboration of Aboriginal testimony, but even so, it was rejected when it reached England. At this time the colony’s Acts were subject to disallowance by imperial officials in England. London decided that the Aboriginal evidence Act was contrary to the principles of British jurisprudence. Similar Acts passed in South Australia and Western Australia were subsequently given royal assent by imperial officials, following a change of government in Britain. Although these, too, gave less weight to Aboriginal evidence than that of a European, they did lead to the first hanging of a white for the murder of an Aborigine in South Australia. Unfortunately, New South Wales did not obtain similar legislation, because British officials and the local Legislative Council did not coincide on any single evidence bill. After the Acts of the other Australian colonies were approved, the imperial parliament authorised the New South Wales legislature to pass a similar law, but subsequent bills failed to pass. The 1844 bill was rejected by fourteen votes to ten after a vociferous debate. The Attorney-General said that one of the aims of the bill was to reduce the bloodshed on the frontier; he cited the lucky escape of the four Myall Creek defendants on this ground. In reply, Robert Lowe said that the bill would risk the lives of white people to the uncertain consciences of Aborigines. William Charles Wentworth’s hostility to Aborigines was unrestrained: Conscience had been very expressively defined as a bundle of habits, and the whole life and practice of these blacks were the practice of falsehood; it was by deceit and cunning that they obtained their living in the wild woods of

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the interior. (Hear, hear.) . . . [The Myall Creek outcome] was a legal murder; for in violation of every principle of law and justice, these men were tried and convicted for an offence of which they had been acquitted by a British jury. (Hear! Hear!) . . . [it is] quite as defencible [sic] to receive as evidence in a Court of Justice the chatterings of the ourang-outang as of this savage race, and he for one would as soon vote in favour of a Bill for that purpose as for the present measure.24

Roger Therry, who had been one of the prosecuting counsel in the Myall Creek trial was almost as passionate in reply, contrasting the loving behaviour of one of the Myall Creek Aboriginal children with the inhumanity shown by the stock keepers who were found guilty. Despite his basic argument of equality before the law, even he, however, believed that Aborigines had inferior intelligence to that of whites. His was an attitude of paternalist care for subordinates, not the respect due to equals. The murders at Myall Creek had become a focus of the debate about law on the frontiers of New South Wales. Each side clung to its version of the second trial’s outcome. The 1844 bill failed largely because the majority believed an injustice had been done to the murderers and because of an irrational belief that the bill would encourage further Aboriginal attacks. The formal legal position was that Aborigines were British subjects, but New South Wales was left without any means to begin to give them access to the British version of justice. They were subjects without enforceable rights.

ABORIGINAL RIGHTS TO LAND The most important feature of early New South Wales economic life was that Aboriginal land was given to white settlers and emancipated convicts at little or no financial cost. The colonists grew crops on it and grazed their animals there, and primary production eventually became the colony’s main source of income. Aborigines were never compensated for the loss of their land, but another price has been paid: severe damage to the oldest continuing culture on earth and two centuries of bloodshed and conflict. Australians are still paying for the original and continued decision to seize Aboriginal land. This was the fundamental basis of the conflicts between blacks and whites in the nineteenth century and continues to be so.25 The colonial and imperial attitudes to Aboriginal land were based on the ambiguous legal status of the Aborigines. Eventually it was settled officially that they were British subjects, but the emptiness of that declaration was nowhere more apparent than in the refusal to recognise their pre-existing right to possess the land they had held for so many thousands of years. This came about through the classification of the Australian colonies as being settled in an empty land rather than conquered, and through the unitary theory that British law was the only law in Australia. 17

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The essentially feudal land law of England stated that the Crown was the ultimate holder of all land and the only legitimate source of land titles. As time passed in the nineteenth century, there was little chance of an increase in respect for Aboriginal laws. Legal plurality was diminishing in England and the empire. The trend in that century was towards tighter recognition of London as the sole source of law, even if it sometimes allowed differences to emerge. Recognition of Aboriginal social customs and laws would have gone against that imperial ideal. Aboriginal laws were also progressively damaged as the invasion slowly swept the continent free of challenges to British notions of right. The settlement theory on which the Australian colonies were founded was not necessarily inconsistent with a recognition of Aboriginal land rights, as was shown so often in other countries and continents and as Justice Willis had shown in Bon Jon. It is possible under the common law system to recognise that Aboriginal people have laws of their own, and that those rights survived the coming of the common law. It is also possible to distinguish between the Crown’s right to dispose of land, and its beneficial ownership of it; a rule can be created that the Crown may eradicate Aboriginal rights but that, until it does so, those rights continue to exist. The tragedy was that this conclusion was not reached in Australia until after two centuries of bloodshed. Even under the terra nullius theory—the supposition that the Aborigines merely wandered across the land without occupying it—the British and colonial governments could have set some land aside for them. By the time South Australia was occupied in 1836, for example, the British government was more sympathetic to Aborigines. Lord Glenelg, the imperial colonial secretary whose liberalism had so annoyed the Sydney Herald, told the South Australian colonisation commissioners to reserve land for Aborigines. The Letters Patent, the royal command that established the colony, also declared that Aborigines were not to be disturbed in the possession of their lands. However, the imperial parliament’s foundation Act for the colony placed no such restrictions on the land grants to be made by the commissioners; the legislation assumed that all land was available for distribution to whites. The commissioners ignored the humanitarian motives of the imperial government, and their grants drove the Aborigines from any land that the colonists wanted, in the same way as in the rest of Australia. Once again, there was a clash between imperial and local officials. Imperial benevolence towards Aborigines was not put into effect in the colony.26 The attitude of the common law to pre-existing Aboriginal land rights was not finally settled until a century after the establishment of the first Australian colony. David Collins, the first Judge-Advocate in Sydney, recognised that Aborigines had a version of hereditary property rights over 18

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land,27 but this was only a personal observation which he did not put into effect in any official way. It apparently did not occur to him that they should be compensated for the expropriation of their lands. John Willis took a stronger line in Bon Jon, but his view was crushed by the majority of his court. As the dispute over the legal status of Aborigines intensified during the nineteenth century, there was also an increasing conflict in the colonial community about native land rights. This was debated in colonial newspapers from the 1820s. One common argument was that the Aborigines merely inhabited the land, rather than possessing it (the terra nullius concept expressed in English rather than Latin). The squatters opposed the notion of native title, for reasons of simple self-interest above all else. Even the humanitarians split over the issue, many of them having no doubt that the colonists had a right to occupy land. However, some philanthropists took a more radical line. One of them, the Baptist preacher John Saunders, stressed that there was no moral or man-made law that justified the theft of Aboriginal land. No official was as assertive on this point as Saunders, but even his was a very mixed blessing. He promised them the benefit of his God, but the corollary was the destruction of Aboriginal society and culture.28 John Batman also appeared to recognise a pre-existing Aboriginal right to land, when he made his failed attempt to buy the land surrounding Port Phillip Bay in 1835. This ‘treaty’ was soon quashed by Governor Bourke, in a proclamation declaring that all Persons who shall be found in possession of any such Lands as aforesaid, without the licence and authority of His Majesty’s Government had and obtained, will be considered as trespassers, and liable to be dealt with in like manner as other intruders upon the vacant lands of the Crown.29

Presumptuous settlers were not able to buy land from Aborigines. Only the Crown could distribute it, and it had no need to buy what it already had. This was confirmed by Lord Glenelg. The ambiguity, or perhaps duplicity, of the position of humanitarian officials in England was most evident in the 1837 House of Commons report on Aboriginal relations. Its author, Thomas Buxton, recognised what he called an incontrovertible right of native people to their own land but then eased the empire’s conscience over what had been done, by recommending merely protection for Aborigines and modest compensation for their losses.30 This was the report that Justice Willis had used in his Bon Jon decision. Any lingering doubts about the common law attitude to the land rights of Australian Aborigines were ended by the 1889 Privy Council decision, Cooper v. Stuart (1889). The Privy Council was the highest judicial body in the British empire, and decided in this case that New South Wales 19

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‘consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions . . . There was no land law or tenure existing at the time of its annexation to the Crown.’ This was the decisive fictional assumption that New South Wales in 1788 was a terra nullius, a land without an owner and without a sovereign. Those who, in European eyes, failed to cultivate the land had no claim to its possession, according to Vattel, the influential eighteenth-century jurist. As a result of this assumption, English law applied automatically from the time of settlement, including its land law.31 By 1889 the major cities of Australia had been virtually swept free of Aborigines, and the war on the frontiers was being conducted only sporadically. Aboriginal culture had been destroyed in many places, although its resilience was yet to be recognised by whites. The belief among the British was that Aborigines were dying out; as one New Zealander said, referring to Maoris, ‘Our plain duty as good compassionate colonists, is to smooth their dying pillow’.32 On that assumption, terra nullius was a polite fiction to cover up the murders and thefts of the past. There was no longer a need to describe Aborigines as monkeys, cannibals or enemies. Terra nullius was a genteel way to sweep the great injustice under the carpet, to salve the consciences of pioneers and their descendants by denying that there had ever been a conflict or that the Aborigines had possessed land. Henry Reynolds argues that the truly amazing achievement of Australian jurisprudence was to deny that the Aborigines were ever in possession of their own land, robbing them of the great legal strength of that position, and of compensation which should have been paid following resumption by the Crown.

He also claims that the common law was ‘corrupted in Australia by the nature of the relationship between settlers and Aborigines in the same way in which it was corrupted in Britain’s slave colonies’.33 This view is based on a rather romantic view of the common law, as being a pure and largely unchanging source of justice which was perverted only in extreme societies. It appears to involve a misunderstanding of its malleability. The common law has always been partial, wherever it has operated. In eighteenth-century England, for example, it favoured the aristocracy over traders. In nineteenth-century Australia it was steered away from a recognition of Aboriginal land rights. There is not, and never has been, a simple equation between the common law and justice. The common law is based on a mixture of tradition, morality and economic interest. It is a vast repository of conflicting views of what is right. Its assertions of equality and liberty sometimes give rise to justice but are often used as a mask for self-interest. Fairness can sometimes be found in it, but so can hypocrisy, as was nowhere more 20

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apparent than in colonial Australia. During the first century after European settlement, the property-protecting common law was used to legitimise a vast land grab, but there was nothing unusual about this, as thousands of people who had been thrown off their land in Britain could have testified. The shape of the law was determined by force, political power and legal tradition. Common law judges can usually find a means within the enormous flexibility of the law to nominate a solution that accords both with legal principle and with dominant political views. The core of the common law lies in its method, rather than its rules, and terra nullius fitted within that method regardless of its hypocritical fictions. There is a limit to the malleability of the common law, but Reynolds is wrong to claim that it was exceeded in this case. After Cooper v. Stuart (1889) the mainstream law of Australia developed without reference to the land rights of Aborigines, despite the central economic fact that the entire nation was built on the land of others. The second century was one of failed policies towards Aborigines, of deaths in custody, high infant mortality and alcoholism. The law’s policies swung from attempted assimilation to attempted separation, but always without success. Only at the beginning of the third century of white settlement was there a beginning of a serious reconsideration of the point made by David Collins two centuries before, that Aborigines had a culture and a form of land holding of their own. The impact of white law on Aborigines also illustrates a wider point. The shape of legal rules is usually determined by a debate between officials, but that can be influenced by a wider debate within the community. Lawyers do not create the law in a vacuum, despite what many of them would have us believe. Judges have always moulded the common law according to their own values and their perceptions of public sentiments and interests. The nineteenth-century debate about the legal position of Aborigines was not conducted in words alone; spears and guns were as articulate as words. At least some of the white killers, such as those at Myall Creek, thought they had a right to kill, loathsome as we might now find that notion. Similarly, Aboriginal law may have justified many of the reprisals conducted by them. A clear official assertion of the correct position in law is not the end of the debate, since people often feel justified in breaking the official law. When they do, an official hierarchy as to who makes law and who should be subject to it is sometimes reversed in practice. Officials sometimes succumb to outside pressure and change even the authorised version of the law. Law breaking can be as creative as law making.

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THE CONTRADICTIONS OF CONVICT LAW

FREEDOM AND THE LASH, 1788–1820 In July 1788, just a few months after the British occupation of New South Wales commenced, two convicts took the first civil action in an Australian court. Henry and Susannah Kable sued Duncan Sinclair, the master of a First Fleet vessel, the Alexander, for the loss of their baggage on the voyage from England. Both of them had been condemned to death and reprieved, but only Susannah was to be sent to New South Wales. A prison turnkey dashed across England to plead successfully for Henry and their baby to go too. When this romantic story became public, a subscription was taken up to buy what they would need in exile. These were the goods that were stolen at sea and which led to the court case. It was an audacious claim, because Sinclair was so far above them in the colony’s social structure and because it directly contradicted the law of England.1 At common law, when a person was condemned to death under a conviction for felony, according to Blackstone he or she was pronounced ‘no longer fit to live upon the earth’ but was ‘to be exterminated as a monster and a bane to human society’.2 Condemned criminals became immediately dead in law, unable to give evidence in court, act for another person or sue in the civil courts. Their goods were forfeited to the crown, as were the profits of their lands. This ‘felony attaint’ was not removed when their sentence was commuted to transportation to a penal colony. Only the expiry of the sentence or a pardon under the great seal of England could remove the attaint. Henry and Susannah had both been condemned and should not have been able to own their property, let alone sue for it. David Collins, the Marine officer who was the first Judge-Advocate of the colony, decided to ignore the common law. He awarded £15 damages 22

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for the lost baggage. Although he was not a lawyer, he must have known about the law of attaint, which was the most important of all English laws in a penal colony. He obviously knew that the Kables were convicts, despite their coy omission of that fact from their claim. The rule of law had arrived in the Australian bush, but it was not the same as English law. Kable v. Sinclair showed that the penal colony of New South Wales would not be a closed prison. Convicts would be entitled to hold property and to enforce their rights in the courts. Like prisoners in London, their lives would depend as much on the amount of property they acquired as on their legal status. The personal autonomy of English law was transported to Australia, but in a new form. When male or female convicts arrived in Sydney or Hobart in the first fifty years, they were usually assigned to work either for the government or for a private individual. In the early years the government provided a food allowance for those who were privately assigned, while their masters obtained the benefit of their work. Until tighter regulations were introduced, both privately and publicly assigned convicts were allowed to work for themselves in the afternoons, earning an income.3 In effect, part of the day was their own. Some lived in accommodation supplied by their masters, while many others lived in their own housing. Convicts on assignment mixed with the community, had children and wore no special clothing. In the early years New South Wales and Van Diemen’s Land were as much places of exile as vast prisons. The treatment of convicts under the assignment system was determined by the attitude of their masters. Some lived in notoriously cruel conditions, such as at Castle Forbes, the property of James Mudie. His men sometimes declared that they would rather die than be returned to work there.4 For others, life on assignment was much less harsh. Some were even assigned to their husbands or wives, a practice that was not ended until the 1830s.5 Life on assignment for some convicts resembled that of a domestic or agricultural servant in Britain, even though they were subject to tighter regulation, such as the need to have a pass to leave their masters’ properties. There was also an underlying sting which distinguished convicts from free workers. One Van Diemen’s Land convict wrote in 1835: . . . we have as much to eat as we like, as some masters are a great deal better than others. All a man has got to mind is to keep a still tongue in his head, and do his master’s duty, and then he is looked upon as if he were at home; but if he don’t he may as well be hung at once, for they would take you to the magistrates and get 100 of lashes, and then get sent to a place called Port Arthur to work in irons for two or three years, and then he is disliked by everyone . . . Of a night, after I have done my work, I have a chance to make a few shillings . . .6

Australian convicts were under closer government supervision than those 23

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who had been sent to North America before the American Revolution. The private contractors who shipped convicts across the Atlantic sold their labour to the new masters; and each purchaser then held complete property in the convict’s work. Although the Transportation Act, on which the Australian convict system was originally based, provided for the same system to operate in New South Wales, it did not work that way in practice.7 The property in Australian convict labour was first vested in the governors, who were able to keep it for the government’s own use or assign it to individuals. Once the assignment to a private person was made, the assignee had a limited property right in the services of the convict. This was the view of Francis Forbes, the first Chief Justice of New South Wales, which he and two other judges affirmed in Jane New’s case in 1829.8 Forbes questioned many of the controls over assigned convicts which the governors had exercised until then. In particular, he said, the governors had no right to remove assigned convicts from masters unless they had failed to look after their convicts properly. He did recognise, however, that the private master’s property interest was subject to the governor’s power to pardon convicts and grant tickets of leave. This overall government control meant that there were true penal colonies in Australia, unlike America. This change was evidence of the gradual reduction in private involvement in imprisonment and punishment. The personal autonomy that characterised English criminal law was in slow decline. Female convicts were subject to the same general rules of assignment as men, but most of their work was domestic. Early attempts to turn them into outdoor labourers failed, and in Governor Macquarie’s period (from 1810 onwards) they were usually assigned to household work until they were married. This was part of a deliberate policy of bringing young women to the colonies for reproduction. As Byrne argues, their labour was less important than their sex. Another consequence of this difference in treatment was that the women in domestic service had no right to free time when they could earn their own incomes. As a result of this, they had less room for personal control over their daily lives than men.9 Male and female convicts under assignment were subject to discipline. The rules were a mixture of local orders and Acts, imperial legislation and, in some cases, whatever punishment occurred to the judge or magistrate at the time. Castles’ research reveals that in the first few years in Sydney, the courts showed creativity in their sentences, especially during the time of food shortages. One convict was confined for a week on Pinchgut, a rocky little island opposite the present Sydney Opera House. In effect, this became the first place of secondary punishment in Australia. This was a mild punishment compared with that of another convict who stole some 24

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potatoes; he was ordered to be given 300 lashes, to have his flour ration stopped for six months, and to be chained to another convict.10 For convicts, the importation of the common law included its cruelty. Flogging was the most common punishment for breaches of discipline, but it was mostly confined to men. Marcus Clarke described it in his 1874 novel, For the Term of his Natural Life: Three wooden staves, seven feet high, were fastened together in the form of a triangle. The structure looked not unlike that made by gipsies to boil their kettles. To this structure Kirkland was bound. His feet were fastened with thongs to the base of the triangle; his wrists, bound above his head, at the apex. His body was then extended to its fullest length, and his white back shone in the sunlight. . . . The third blow sounded as though it had been struck upon a piece of raw beef, and the crimson turned purple.11

Convicts could only be punished by the order of magistrates or judges. Masters had no right to beat their convict servants. The most serious offences could be tried only by the judges, but they rarely left the main towns. Before its separation as an independent colony in 1825, Van Diemen’s Land had no resident judge to try serious criminal cases. This led to allegations that serious thefts went unpunished there because it would have been too expensive for the prosecutor to take the case to Sydney. No mainland judge visited the island to try serious criminal cases until 1821, seventeen years after Hobart was established. It led to a splurge of executions, as terror was used to instil obedience into the unruly Vandemonians. Minor offences by convicts were prosecuted there much more regularly, because the amateur magistrates who heard these cases were present in most communities. Capital offences, which should have been tried in Sydney, were instead tried by the island’s magistrates, who could not order executions but who made very heavy use of the lash and other physical punishment instead. Free people, who were not subject to trial by the magistrates, often managed to evade punishment altogether in Van Diemen’s Land.12 This peak of amateurism, with its combination of illegally heavy punishment of some and lucky escapes from punishment by others, was even more capricious than the enforcement of the criminal law in the frontier period on the mainland. Law in Australia was already showing the pluralism of its English parent. The magistrates were given wide punitive powers, at first without explicit guidance, but subsequently by local and imperial statutes. In 1825, for example, one of the first Acts of the newly established New South Wales Legislative Council empowered a magistrate sitting alone to order the punishment of recalcitrant male convicts by work at a treadmill for up to ten days, flogging of up to 50 lashes, solitary confinement on bread and water for up to seven days, or imprisonment with hard labour for up to three months.13 25

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Some of the magistrates imposed these and other sentences arbitrarily. A Supreme Court Justice, Roger Therry, reported that a convict was sentenced to 50 lashes for not taking off his hat to a magistrate as he met him on the road. Therry also showed that the lash was used illegally to attempt to force convicts to confess their guilt or reveal stolen property. These illegal punishments were not restricted to men: he also complained that two women were chained together until they restored a stolen gown. Magistrates also acted beyond their strict powers when they used iron collars against female convicts, and when one ordered a woman to be lashed. Some magistrates sentenced people to transportation to the penal settlement at Newcastle for indefinite periods, which was also beyond their powers. They also manipulated the rules. When the official penalties were reduced in 1832, the magistrates found a way around the restriction by splitting the offences in two, so doubling the available punishments. Illegal sentences left the magistrates vulnerable to being sued or prosecuted by those they punished, but in 1825 the local and imperial legislatures passed indemnity Acts to prevent this.14 Despite the brutal power of the law, convicts were not merely passive victims of a brutal system. Byrne shows that the magistrates’ court records reveal the convicts’ expectations about working conditions, which they tried to enforce. In Sydney their circumstances approached those of wage labour and their claims concerned food and accommodation. Plantation conditions applied in the country, where they complained about food and accommodation; in the bush the relationship between convict and master was closer to a traditional British paternalist one, with enforceable obligations on either side. Byrne argues that the law was a site for struggles over working conditions, not just something used to enforce the discipline of convicts. A charge of insolence or refusal to work was often met by the convict’s own complaint about working conditions. As shown later, the convicts also brought civil actions of their own before the magistrates.15 Although the magistrates heard complaints by both sides, there was nothing neutral about their use of the law. Even if they were unable to hear complaints against their own servants, magistrates were themselves masters who heard complaints by members of their own class. Sometimes they interpreted the very action of complaining as insolence.16 Despite that, the law was a constraint on the behaviour of all members of the colonial community, including the powerful. Masters had to act within its broad limits and had to follow its sometimes awkward procedures. The inconvenience involved in taking reluctant or disobedient convict workers to a magistrate for punishment affected the daily relationship between convicts and masters. Informal sanctions, such as the withholding of discretionary rations, sometimes replaced the punishment imposed by the courts. There were four forms of convict protest, according to Alan Atkinson: 26

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one was a radical rejection of official values, while the other three included at least some acquiescence in them. This partial acceptance of formal values was interwoven with an assertion of the convicts’ own views of their rights. The three ways in which they pressed their rights were appeals to authority (such as through claims in court), refusing to work, and compensatory retribution (when they destroyed property). The latter was not an unprincipled rejection of official power but a response to an infringement of their own perceptions of right. The important implication of Atkinson’s work is that these customary rights were based partly on official values as applied to convicts, and partly on expectations of the work done by free labourers in Britain and Ireland. The result of this interaction was a peculiarly local version of rights, which frequently went beyond official ideas. It was this blend of views that was internalised by the convicts, not simply the official statement as to correct behaviour. When a magistrate accepted one of these convict pleas, he was engaging in a multi-sourced determination of local law. Those in the first of Atkinson’s categories, who undertook a total challenge to official authority, sometimes expressed themselves violently. Bushranging commenced when convicts ran away from an often brutal imposition of force. Convict rebellions were the most dramatic expression of a general rejection of official values, but despite a nagging fear of insurrection, especially by Irish political prisoners, there were very few of them. The rebellions on the mainland, Norfolk Island and Van Diemen’s Land were minor and short-lived. The most important convict rebellion began in 1804 at Castle Hill, outside Sydney. About 300 convicts armed themselves as part of a careful plan to march on Sydney, where they apparently aimed to seize a ship. This had all the elements of a good revolt: Irish rebels, a declaration of martial law, treachery by a military leader in capturing the rebel leaders, a bloody battle, a court martial, immediate executions (one without trial), and the rebels’ grand rallying cry of ‘death or liberty’. Most of these military actions were lawful by imperial standards except, probably, the execution without trial. Nor were military legal procedures fully followed in the trials. The rebels’ aim was to seize not government, but liberty, a return to Ireland. According to O’Farrell, their actions were motivated less by desperation caused by a brutal regime than by a mixture of frustration, sickness of heart and resentment at the English oppression of their religion. This rebellion was an exception, however, not part of the usual pattern among Irish convicts of conditional acceptance of the penal societies’ overall structure and of the almost universal colonial drive for wealth.17 The Act that established the Court of Criminal Jurisdiction authorised it only to inflict capital and corporal punishment, but, together with the governors and the magistrates, the court developed a more feared punish27

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ment, secondary transportation. Convicts were sent to specifically penal settlements when they committed further offences in the colonies. Names such as Macquarie Harbour, Port Arthur, Norfolk Island, Coal River (Newcastle), Port Macquarie and Moreton Bay resonate with blood and horror. It was much greater punishment to be sent there than to be flogged or sentenced to public work such as building roads, even as a member of a chain gang.18 The first penal settlement was Norfolk Island, occupied in 1788, just a few weeks after Sydney. Initially it was not a place for doubly convicted convicts but was simply another convict settlement with the same general rules as the mainland. Within three years, however, it had begun to be used as a place for rebellious and recidivist convicts, its chief attraction being its isolation. In 1800 Foveaux took command there and established the island’s bloody reputation by initiating a pattern of torture and harsh physical discipline, which remained over the succeeding decades. Some were so desperate to get away from the island that they committed brutal crimes so they could be sent to Sydney for trial. Even under Foveaux, however, the basic system of convict management in the first period at Norfolk Island remained as it was at Sydney. This meant that convicts of both sexes lived there. As on the mainland, they had property rights, free time and some autonomy, and they interacted with a local settler community. This is shown by correspondence between Thomas Jamison, an official surgeon in Sydney, and Michael Hayes, a convict who was sent to the island in 1805 as punishment for a locally committed crime. Hayes acted as Jamison’s commercial agent on Norfolk Island, including acting for him in the island’s civil court. Hayes also traded on his own behalf and acquired a considerable amount of property. There is barely a hint of his convict status in this correspondence until the order to evacuate the island was made in 1807. He then had difficulty in obtaining permission to remove his property. He appears to have held his property as of right, but the right to have it shipped on government vessels was restricted to free and emancipist settlers. If New South Wales was remote from British control, Norfolk Island was removed even from that of the governors and judges in Sydney. This is shown by Foveaux’s actions when he and his officers agreed to the immediate capital punishment of two convict mutineers. It is clear that these executions were illegal by the standards of the common law as there had not even been a trial, yet Foveaux’s decision had the support of both Sydney and London. The implication was that those in charge at Norfolk Island were autocrats, able to do what they liked, so long as the convicts were subordinated.19 After the first settlement at Norfolk Island was abandoned, Newcastle (Coal River) became for some time the only place of secondary punishment 28

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in the vast colony of New South Wales. It was established in 1804, and most of the convicts sent there had been convicted of further offences in New South Wales. Some local free people who had committed a major crime were also transported there, and a few convicts who were experienced miners went to Newcastle as soon as they arrived from Europe. It was a relatively remote and sober place, as Commissioner Bigge found. While there was compulsory labour on government works such as coal mining and lime burning, there was also some opportunity for convicts with money to live relatively well. They were able to buy their own houses, take in lodgers and import goods for resale. Most convicts lived as lodgers rather than in the barracks or the gaol.20 TICKETS

O F L E AV E A N D P A R D O N S

Tickets of leave (analogous to today’s parole) were a local colonial invention of the governors. They seem to have been issued first in 1801. The governors may not have had strict imperial legal authority to grant tickets until they were recognised by statute in 1828, but, like so many aspects of convict management, rigorous imperial attention to the legality of this came only in the 1820s. Until then, the practical determination to ensure a functioning penal regime overrode most concerns about legality. The imperial government knew about the ticket of leave system and approved of it, tacitly or explicitly. Tickets of leave allowed convicts to work solely for themselves and live in their own accommodation while remaining under formal sentence. They were conditional on the convict complying with local orders, living within a fixed area, and they sometimes required the holder not to demand ‘extortionate’ prices for labour. One advantage to the government was that they removed the prisoner from official rations. They were also a strong incentive for compliant behaviour, both before they were granted and, because they could easily be lost, afterwards. They were less attractive to the masters of hard-working assigned convicts, however, who had an incentive to block the issue of a ticket if they could.21 The final stage of the emancipation of a transported convict was legal freedom, either through completion of the period of service or through a pardon. Pardons were granted by the local governors and were usually conditional on the convict remaining in the colony until the original period of transportation expired. Absolute pardons, allowing immediate return to Europe, were rarely given. Conditional pardons were linked to the imperial policy of granting land to emancipists with government rations for the first six months or a year; the aims were to create a local yeomanry and give the emancipists an incentive to stay in the colony.22 Tickets of leave and pardons were the most important elements in the early governors’ broad discretionary control over the lives of convicts. This 29

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was a local version of the paternalist discretion that so strongly characterised the criminal law of England at the beginning of the nineteenth century. In Australia, however, it operated in a different context and with different effects. Patronage in the convict colonies was coupled with rewards for good behaviour, some of which included grants of land. Such grants would never have been made in Britain or Ireland. As in England, the law was seen to be merciful while its orderly values were simultaneously reinforced. The control of convicts in colonial Australia was thus achieved through a combination of physical brutality and discretionary rewards. Neither side of this balance should be ignored; each reinforced official views of appropriate behaviour and values. The ideological function of law rested, as it still does, on the way in which official values become part of received common sense. This had to be accepted by people who were subject to it, and that process was much more complex than a simple notion of rules and values being imposed on convicts from above.23 Many of the convict policies in force before 1820 were developed locally by the governors, judges, magistrates and even the convicts themselves. English laws were sometimes broken in this period, but no one seemed to be particularly concerned about that, least of all the imperial authorities in London. There was a change in about 1820, however, which included greater concern about legality, the introduction of more bureaucratic methods and closer control over convicts. The personal autonomy of convicts was at a peak in the period to 1820, after which it gradually declined into strict imprisonment.

T H E I M P O S S I B I L I T Y O F S T R I C T L AW , 1820–1840 The first major attack on the independence of assigned convicts was the opening of Sydney’s Hyde Park Barracks in 1819. It was built for male convicts who had not been assigned to private masters. This was not a prison; the building was a convenient place to live rather than a place of punishment. The inmates slept in hammocks in large rooms and were free to leave on weekends, when they could earn money. They had to be persuaded to live there. This was the first time a large number of convicts were kept together in government quarters, as part of Macquarie’s attempt to diminish the customary autonomy of convicts. The introduction of distinctive convict clothing in this period also symbolised the separation of convicts from the community. Gradually, the notion that convicts could earn money in their own time also diminished. In 1816 it was reduced to a fixed payment of £10 per year for those whose time was devoted solely to their masters’ work, and even that was abolished in 1823. It was replaced, though, by an informal system 30

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of private rewards and indulgences, including passes allowing the convicts to go into town on Sundays.24 As in the great London prisons, which Dickens described, convicts in Australia only gradually lost their independence, their right to live their lives as they wished. Women were under a greater restriction at the Female Factories in Parramatta, Hobart and Moreton Bay. The first of these was established in 1804. The most important was Governor Macquarie’s Parramatta factory, which was completed in 1821. It was designed as a place to keep women separate from men until they were married. He was a great moralist, determined to end what he saw as the scandal of newly arrived young women being assigned to single men. The factory was more than a sanctuary against lust, however. It was also a prison for refractory convicts and, as its name implies, a place for manufacturing cloth. Marriage bureau, prison, labour exchange and factory, the one institution had multiple and conflicting roles. In it, women were confined and regulated much more closely than male convicts at the time. The mass of women were drawn into institutional life much earlier than male convicts. Macquarie divided the Parramatta factory inmates into two groups, and Governor Darling subsequently refined the classification further, splitting them into three. The first class were new arrivals and blameless destitutes, from which assignments (and marriages) were made. The second was probationary and included those who had been returned from service. The third were locally convicted criminals under punishment, including some free women who had committed local crimes. Those in the third class were not paid for their work and lived separately from the others. Hard labour at the factory (sometimes in solitary cells) was one of the main forms of punishment for women, the alternatives being fines and periods in the stocks. With rare exceptions, the lash was confined to men. Byrne stresses that female convicts were not passive, powerless victims of male stereotyping of their roles. By being insolent they could escape an unwanted assignment and be returned to the factory. They used the law, she argues, to attain a degree of autonomy. Marriage also allowed a different version of freedom when women were assigned to their husbands. While this might appear to have been an escape into a new form of subservience, it was not necessarily so, because even married women sometimes engaged in independent trade, as chapter 3 shows. Clark noted that the women of the Hobart factory showed a different form of independence when Lady Jane Franklin visited them: they greeted her by taking down their pants and waggling their bare bottoms at her.25 There was a major change in 1820, when convicts formally lost the key to their personal autonomy, their right to hold property and sue in the courts. Kable v. Sinclair was no longer good law. For more than 30 years that decision to refuse to follow English law had been essential to the 31

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character of New South Wales and Van Diemen’s Land. Without it, the lives of the convicts would necessarily have been dependent on their masters or the government. The right to sue was especially important, since there were few cash transactions. An absence of sterling meant that most transactions were carried out on credit or through payment by promissory notes, which were written promises to pay in the future. Convicts were paid in this way for work done in their own time, and they had to be able to sue. The ticket of leave system was also based on Kable v. Sinclair. Ticket holders lived as if Australia were a vast debtor’s prison, confined by the walls and some regulations, but otherwise free to live as they could afford; they could not do this if their civil legal rights were removed. Early New South Wales and Van Diemen’s Land were remarkably egalitarian places, in which legal status was irrelevant to the common interest of the colonists, the rush for wealth. All of this depended on the continued acceptance of David Collins’ decision at the beginning of British occupation. The law of felony attaint came to New South Wales in stages.26 It began with a governor’s order in 1798, which said that government convicts were not to be arrested for debt. This was extended to all assigned convicts in 1801, and from this the courts developed a unique local rule. Assigned convicts could sue or be sued only in the magistrates’ courts. Ticket of leave holders and pardoned convicts had the same civil rights as free people. This went further than the common law, which did not prevent actions against attainted convicts. In another way it did not go as far, because the magistrates’ courts were open to serving convicts, and ticket of leave holders still had complete civil freedom. This local rule of one court for convicts and another for the free, which cannot be explained as a simple application of Blackstone’s rules about the transfer of the common law, was in force until 1820. This was all swept aside in formal terms in the Eagar cases in 1820. In it, the local courts held for the first time that serving convicts and ticket of leave holders were subject to the full rigours of the English law of attaint, including the rules against holding property, suing in the courts and giving evidence. This was a devastating change for ticket of leave holders. Worse than that, the decision also affected all the emancipated convicts who had been granted a pardon before completing their sentence. The Supreme Court held that the governors’ pardons were invalid because they had not been endorsed in England as required by statute. One of the two Eagar decisions had extra piquancy because the plaintiff, the emancipist attorney Edward Eagar, was taking action against one of the two judges in the colony, Barron Field. A whiff of self-interest added to the hurt. This drastic alteration in the locally applicable law was not due simply to changes in the demographic composition of the colony. The arrival of a powerful group of free immigrants was no doubt influential, as were the 32

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arguments of those who opposed the emancipists, but there was also an important change in fundamental legal attitudes. Professional judges had replaced the amateurs from the end of 1809, when Ellis Bent arrived, and they brought with them a stronger adherence to English law. It took ten years for this to affect the local law of attaint. The court in the Eagar cases followed an English decision of 1819 which prevented one of Macquarie’s emancipists from suing in an English court because his pardon had not been affirmed under the great seal in England. In the Eagar cases, this was extended to actions taken in the colony.27 There had been hints of the Eagar principle before 1820. Ellis Bent was determined to bring the colony’s law closer to the law of England, but he allowed the locally developed attaint rule to continue. He also let emancipist attorneys practise law in his courts under the title of ‘law agents’, recognising the practical necessity of this because there were no free lawyers in the colony. This ended when his brother Jeffery arrived as judge of the first Supreme Court in 1814. Jeffery was affronted by the notion of convict lawyers and refused to allow them to practise. Since there were no free lawyers, he would not allow the Supreme Court to do more than hold formal hearings until at least two properly qualified free attorneys arrived. As a result, the court did not operate until 1817, after he had been dismissed and his successor arrived. Under him, local practice gave way to strict English propriety, regardless of its ridiculous practical effect. Strict law meant that for a long period there was no civil law at all, which was compounded when Ellis’s illness prevented him from sitting in the smaller of the colony’s civil courts.28 The effect of the Eagar decisions was potentially devastating, especially when Chief Justice Forbes subsequently declared that the expiry of a sentence ended attaint only for some crimes and only if the convict had served the full period of transportation rather than being pardoned early by the local governor. This meant that many wealthy emancipists, who may have been pardoned many years earlier, were declared incapable of holding property.29 For two decades some of the richest people in the colony were emancipists, including Henry Kable, Simeon Lord and Samuel Terry. Macquarie even appointed some of them as magistrates. Now, they found they owned nothing and had no civil rights. Even property held by free people was put at risk by the Eagar cases: what would happen to property that had passed unlawfully through emancipist hands? Many of the colony’s land titles were suddenly felt to be doubtful. The rule of law itself was also at risk because a large percentage of the population could no longer give evidence. So was the ticket of leave system, which depended on the Kable v. Sinclair principle. The Eagar cases and the refusal to allow convict attorneys to practise law fed into the colony’s primary political conflict, between the emancipists 33

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and the exclusives. The emancipists were already lobbying for representative institutions, such as juries and an elected legislature. The exclusives, those who had come to the colony as free subjects, opposed this liberalisation on the ground that the colony was corrupted by the presence of convicts. Extreme exclusives such as Mudie argued that the penal colonies should be divided permanently into two castes, with no release from the legal and social stigma of transportation.30 By 1820, however, it was too late for them to prevent wealth falling into emancipist hands. Kable v. Sinclair and the general disregard of English legal propriety had allowed that to happen for more than twenty years. The Eagar decisions came much too late and left the colony in an impossible position. The restriction of convict autonomy and the clumsy assertion of English legal propriety in Eagar were reinforced by the reports of Commissioner Bigge in 1822 and 1823.31 Bigge had been commissioned by the British government to recommend a more punitive convict system. He criticised Governor Macquarie’s liberal regime with its emphasis on rehabilitation, and his reports led to tighter restrictions on convicts in New South Wales and Van Diemen’s Land. In particular, after Bigge there was a new emphasis on places of secondary punishment, in order to increase the deterrent value of transportation for those supposedly considering a life of crime. The perceived needs of Britain supposedly conflicted with the relatively liberal nature of New South Wales. Convict policy was influenced by a combination of the attitudes to punishment held by the dominant political party in London and local ideas. Bigge accepted the exclusive argument that convicts should be separated from the rest of the community to prevent corruption of general morals and the development of any notion of equality between free and emancipist people. He recommended, however, that there should be less emphasis on the lash and that the ticket of leave system should continue. His reports did not lead to the end of the assignment system, but they were part of a trend towards tighter convict surveillance, closer attention to legality, and the end of the governors’ discretion. These trends were clear in the second penal settlement at Norfolk Island. In 1824, the Colonial Secretary, Lord Bathurst, ordered the reoccupation of the island. His aim was to send the worst convicts from New South Wales and Van Diemen’s Land there, as a place of punishment and deterrence. In particular, convicts who committed serious further crimes in the colonies would be sent there, as the one punishment just short of death. Lesser offenders were sent to Moreton Bay. Secondary punishment came under formal law after 1820. An imperial Act of 1823 authorised the re-transportation within New South Wales of convicts who had committed local crimes. On the recommendation of Bigge, the new sentence commenced when the old one expired. Bigge’s 34

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reports also ensured that those who were transported from the United Kingdom for a second or third time were sent to penal settlements as soon as they arrived in Australia. Even the magistrates had power to send re-offending convicts there. This was an extraordinary jurisdiction to be exercised summarily by one man.32 Many convicts must have feared additional time on Norfolk Island more than any number of lashes. The great difference between the first and second settlements at Norfolk Island was that the second had little connection with ordinary society. There were no land grants to emancipists or local assignments of convict labour, and no private sales of food. There was only one reason for anyone to be there, the punishment of crime. It was exclusively a penal island after 1824. The more punitive Commandants even removed the right of prisoners to work their own garden plots. This separation from normal life was exacerbated when Governor Darling ordered that the women there, the wives of officials and convicts, were to be withdrawn. There was no less brutality in the second period on Norfolk Island than the first. Roger Therry showed this when he described several Norfolk Island convicts who were witnesses in a case he was prosecuting as Attorney-General: Of these six or seven witnesses there was not one who had not from time to time undergone the punishment of 1000 lashes each and upwards. They were as little reclaimable by the lash, as if so many drops of water had been poured upon their backs. They looked less like human beings than the shadows of gnomes that had risen from their sepulchral abode.33

Therry also cited a first-hand account of a man who chose to die in 1830 rather than make an appeal for clemency, which would have meant being sent to Norfolk Island. As Therry emphasised, only a minority of convicts were treated so badly, but some were, which showed that there was no sudden jump from punishment of the body to supposedly rational bureaucratic imprisonment. The governor’s powers were also restricted by the closer attention to legality after 1820. In 1826 Governor Darling showed his autocratic tendency when he overruled a Quarter Sessions sentence of seven years’ transportation to a penal settlement. Darling thought that the offence, committed by two soldiers who were trying to obtain a dismissal from the army, deserved severe physical punishment. He ordered them to work in a chain gang with especially heavy chains, but one of the soldiers, Sudds, died. An outcry about this led to an appeal to London, where the imperial officials confirmed that Darling had acted illegally. It was less clear whether Darling had the power to send convicts to the penal settlements, or whether only the courts could do that. Chief Justice Forbes thought that Darling acted illegally when he ignored a Supreme Court order to let a 35

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convict go free, and sent him to Moreton Bay instead. The governors were gradually losing their autocratic powers and falling under the rule of law.34 Paternalist discretion was also in decline. The governors’ individual power to reward approved behaviour gradually gave way to bureaucratic consistency. Beginning with Governor Macquarie, tickets of leave and pardons came to be granted at fixed periods after the commencement of service, although they were still used to reward good behaviour. This trend was accelerated when Governors Darling and Bourke gave up their personal right to assign convicts, with its scope for patronage, and transferred the task to a board of commissioners. At the same time, there was increased official concern about the moral conduct of the convicts’ masters.35 THE

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The Eagar decisions were so out of step with accepted local practices that one or other had to be modified. In fact both were adjusted, but it took years to do so. After Eagar, pardons had to be legitimised, the position of ticket of leave holders clarified, and the rules of evidence changed back to the local law that had allowed convicts to be witnesses. The first task was to rectify the local pardons, which Macquarie and even Bigge said had to be done quickly. In 1823 the imperial parliament affirmed all of the pardons previously given and stated that in future governors’ pardons would have effect at once, unless they were subsequently disallowed in London. In the next year another Act provided that those who had been pardoned were entitled to enforce property or other rights acquired since their convictions.36 The other problems took longer to resolve, and the local courts had to decide what to do in the meantime. It took twenty years before something approaching the local law existing before 1820 was restored, but in the meantime the practice, if not the formal law, was that convicts could hold property. Serving convicts were encouraged to deposit their money in the Bank of New South Wales after its establishment in 1819. On Bigge’s recommendation, these convict deposits were made compulsory in New South Wales and Van Diemen’s Land, at least for the first two years after their arrival. If they had to enforce the payment of their wages, the Comptroller of Convicts would sue on their behalf until a ticket of leave was issued. Once they obtained a ticket, they could withdraw their money. Compulsory deposits were consistent with the more restrictive approach to convict management after Bigge, but not with the law of attaint, which would have forfeited all money of capitally convicted felons to the crown. Further evidence of the official tolerance of convict property was that the government paid wages to its serving convicts, despite Bigge’s objections. The courts had to find a way to reconcile all of this with the formal law after Eagar.37 The judges could not ignore the law of attaint, and so they simply 36

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avoided it. One judge, Roger Therry, described a defendant’s attempt to avoid the payment of a debt by claiming that the creditor was attainted as a ‘monstrous attempt at fraud’.38 The device he and others used to nullify this defence was to hold that attaint would not apply unless a record of criminal conviction could be shown. In the meantime, witnesses could not be compelled to confess their own crimes. The only acceptable proof was the record of conviction in the United Kingdom, and the court had a discretion whether to send for it. Even if it chose to do so, the record could take a year to arrive. This was not good enough for the outraged emancipists; they demanded the certainty they thought they had had until 1820, not the mere judicial discretion to choose not to send for the formal record. In this, they had the support of Chief Justice Forbes and Governor Macquarie.39 Even the judges of the permanent Supreme Court after 1824 used this technical device to reconcile the strict application of English law with the locally accepted custom that convicts were able to acquire property well before they were freed. This evidentiary point was used, for example, when Charles Kable was charged with theft in 1826. He claimed that since the ‘owner’ of the stolen goods was a convict, he could not hold property and therefore it could not be theft to take something from him. The Supreme Court deflected what it saw as ‘a mere question of technicality’ by holding that there was insufficient proof of convict status. The local evidence of convict status (the indent, carried from England with the convicts) was enough to hold them in custody but not sufficient to prove attaint. Many indents failed to state what the convict’s original crime had been, and because attaint did not attach to all crimes the judges could not know from it whether the person was attainted.40 Despite emancipist petitions, and the campaigns by Edward Eagar himself in London, imperial parliament reinforced the common law in 1832. It enacted that even ticket of leave holders were subject to the full law of attaint until their sentences expired or they were pardoned. A New South Wales Act of the same year had formally granted them these powers, but it was crushed by the weight of imperial law. The gulf between imperial and local law was never wider. The colonial governors protested that the imperial legislation wrecked the ticket of leave system, but this had no effect for another ten years. In response to this silence from London, the governors were forced to award conditional pardons instead of tickets of leave, so reviving the convict’s legal status but losing the control the ticket of leave system had given them. Imperial and local laws were at last reconciled in 1843. In that year the imperial parliament finally passed a new Act that revived some of the rights of ticket of leave holders: they were entitled to hold personal property and leases of land, and to sue in the courts to protect these and 37

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other rights. This did not extend to full title to land, but otherwise it was a restoration of the law as it had been accepted in New South Wales before 1820. If the ticket was revoked, the felon’s property was forfeited to the Crown, but it was usually either given to her or his family or retained until a fresh ticket was obtained. Local customs had finally been legitimised in London.41 There was no certainty about the right of convicts to give evidence until it was settled by statute in 1844. The New South Wales Supreme Court reached conflicting decisions on the point. In one important case, R. v. Farrell, it held that the common law rule against the admission of convict evidence was not applicable in New South Wales, on the ground of differing social conditions in the penal colony. The majority judges, Dowling and Stephen, emphasised that even in 1831 New South Wales was essentially a penal colony in which the judges had ‘a wide discretion . . . to mould the principles and rules of the common law, to the actual state of society’. They held that the rules of evidence were mere rules of practice of the courts, which need not be accepted in the colony. Even the dissenting judge, Forbes, recognised that this rule could not apply in the penal settlements such as Norfolk Island. It was such a fundamental law, he said, that only extreme necessity could prevent it from being part of the inherited law of the colony; the necessity was evident only in the places of secondary transportation. Elsewhere, Forbes thought, the lives and liberty of accused people should not be subject to the discredited evidence of convicts.42 As a matter of fact, the evidence of convicts was accepted in the courts regularly before 1844, partly because of the difficulty and delay of obtaining certified copies of the records of convictions from England. The majority judges in Farrell felt that these and other cases formed a long-settled usage within the colony, which should be recognised as formal law. In this way, even if an indent proved a crime to which attaint attached, and even an easily proved local conviction, it would not prevent the person concerned from being a competent witness. In the event the evidence of a doubly convicted criminal, ironically named William Blackstone, was admitted, and his fellow bank robbers were convicted of the crime in Farrell. The practice of admitting evidence by English convicts continued until the Act was passed in 1844, but such were the vagaries of the rules governing the adoption of English law that it could not be guaranteed in every case until then. In the same year a similar Act was passed by imperial parliament. The application of the complete law of felony attaint shows the absurdity of thoughtlessly imposing the law of England on a strikingly different society. A carefully developed local law had been matched to local conditions, but was suddenly swept away in formal terms in 1820. That was followed by twenty years of uncertainty as conflicting versions of the law 38

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gained and lost ground. For much of this period, however, a local rule operated which conveniently stepped around the problem by requiring formal proof of conviction. The gap between formal law and local practice was met by a device resembling the common law’s ancient artifice of fiction: the judges pretended not to know a person’s status until it was inescapably thrust in front of them. The same kind of adjustment was made to allow convict attorneys to continue to practise in Sydney and Hobart after Jeffery Bent left and even after the Eagar cases. Emancipists such as George Crossley had a skill to sell, regardless of their doubtful reputations. Crossley was the most experienced lawyer in early New South Wales. He appeared for many of the wealthiest people there, convict and free, and even recovered debts due to the Crown. Garling and Wylde, Ellis Bent’s successors as Judge-Advocate, supported Crossley’s temporary admission to practice, but in 1817 the transported attorneys were once again denied permission to practice.43 Crossley was then supposedly employed as clerk to an attorney, Thomas Amos, although the reality of the relationship was that Crossley was in charge. He paid Amos several hundred pounds a year plus a share of his profits, in effect buying a cover for his own practice. This ended in 1819 when Barron Field, the new judge, fell into a dispute with Amos over personal business. He removed him from the roll of practitioners with scant reference to Amos’ right to be heard, and tried to get Crossley admitted to full practice. This was blocked by the two lay magistrates who were sitting on the bench with Field. None of the three characters in this story emerges as entirely honest and capable. Amos is shown by it to be yet another among the insolvent drunken early-Australian lawyers. Crossley was accused by Amos’ friends of duplicity. Field’s conduct was little better, as he is shown to have been corrupted by personal motives.44 This combination of corruption and inconsistency in the legal profession should have ended with the establishment of the permanent Supreme Court of New South Wales in 1824 but might not have done so, in fact. The judges of the new court showed a much closer adherence to English law and practice, including a concern with the propriety of legal practitioners. The Third Charter of Justice, which established the court, made clear that transported attorneys were not to be admitted to legal practice if their crimes would have prevented their admission in London. In 1838 the Supreme Court decided that not only were transported convicts forbidden from practising as attorneys, they were also barred from being attorneys’ clerks. As late as that time, only two years before transportation to New South Wales was abolished, the court found a continuation of the practice that had been carried on by Amos—attorneys were still employing transported attorneys under sentence, supposedly as clerks, but in reality as a front for the convicts’ own legal practices. In the view of the exclusive 39

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James Mudie, even in the 1830s the law courts and legal profession of New South Wales were ‘a sink of corruption and iniquity, detestable profligacy and disgusting filth’.45 Local customs, in this case the continuation of convict attorneys, were not easily eradicated, even by the fully trained Supreme Court judges.

T H E E N D O F C O N V I C T L I B E RT Y , 1840–1868 Alexander Maconochie thought that the assignment system was arbitrary and cruel. He criticised the system he saw in Hobart in 1837 and 1838, particularly the discretionary nature of control over convicts. He also complained that the system was based on physical punishment, claiming that cruel beatings did nothing to change the hearts of men. Convicts had the status of slaves, he argued, which they retained even after they obtained their tickets of leave, when they became slaves of the police. Maconochie’s views were representative of a reformist voice in penology, one that called for bureaucratic regularity and for moral reform rather than physical punishment. He said that the ‘essential and obvious error in this system then is its total neglect of moral reasoning and influence, and its exclusive reliance, in every relation of life, on mere physical coercion’.46 In fact, he argued, the convict system damaged the morality of convicts and penal societies generally. In place of arbitrary force, he proposed a graded series of certain punishments. There would be two primary objects: punishment for past wrongs and training for the future. Convicts were to be separated from the rest of society and placed under constant supervision. They were to know where they stood, through a system of marks for good or bad behaviour. Tickets of leave would continue, but assignment would end. Subsequently, Maconochie was able to put his mark system into effect on Norfolk Island, where he was Commandant for a brief period until he was dismissed for being too lenient. Convicts were unlikely to thank him for his reformist approach, as he was proposing their removal from ordinary daily life. His aim was to ensure that transportation was more than exile and a deterrence to others in Britain. He wanted to change the hearts and habits of convicts, to crush their own views of how they should live. His system may have been less arbitrary, but it also lessened individual autonomy. The logical extreme of this kind of perception was eventually put into place in Port Arthur, where recalcitrant convicts were separated even from one another. They were forbidden to speak to one another, required to wear masks when exercising, and to stand in separate stalls in the chapel. Attempts to mould the mind could be as bad as punishment of the body.47 A similar combination of utilitarian rationality and compassion was evident in the Select Committee on Transportation, which met under Sir 40

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William Molesworth and reported in 1838, at a time when so much of English law was being reformed. The committee recommended the end of the assignment system and the abolition of transportation itself to New South Wales. This was quickly put into effect.48 The last convicts under the old system arrived on mainland New South Wales in November 1840. Transportation there was revived in 1844 under a new exile system for conditionally pardoned ex-inmates of British penitentiaries. Most of these were sent to the Port Phillip District, although public opposition ended this before it became the separate colony of Victoria in 1851. When the Hashemy arrived in Sydney in 1849 with another load of convicts, a vast demonstration of public outrage ensured that not many more would follow. After a gap of almost ten years, the people of New South Wales, apart from the squatters, no longer wished to be seen as residing in a penal colony or to compete with convict labour. The last convicts reached Norfolk Island in 1852 and Van Diemen’s Land in 1853, but transportation was not even commenced in Western Australia until 1850, where it persisted until 1868. Because of a change in imperial policy, there was no private assignment in these years.49 Other reformers agreed with Maconochie that assignment was too arbitrary and too much like slavery, against which Christian passions were so fiercely expressed. The new system was put into effect in a relatively mild form in Western Australia.50 Only men were sent there, and tickets of leave and conditional pardons (later conditional releases) were retained as incentives to good behaviour. Some of the earliest convicts there were even entitled to tickets of leave as soon as they arrived. Things were very different though. The absence of assignment and a prohibition on convicts earning extra money in their own time or even holding money meant that these convicts would have envied the freedom of those 50 years earlier. They did earn a minimal daily sum, but it was kept for them until they obtained their tickets of leave. Because they were in government service, such as building roads and prisons, they had no need for private property and they remained under the control of government officials. The new theory emphasised penal servitude on government works, especially away from settled areas. The convicts lived in barracks, or in gaol if they were being punished. The same kind of policy was put into effect in Van Diemen’s Land.51 Convicts there were regulated by a new probation system under which many of them lived in large camps in the bush. By 1847 all the probation gangs were shifted to Maria Island and the Tasman Peninsula, the sites of the earlier places of secondary punishment. They graduated through several stages: at first they were subject to close constraint and labour, then they could hire themselves out as workers, after which came tickets of leave, conditional pardons and full pardons. And within these classes, there were further bureaucratic refinements. The holders of tickets of leave were 41

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tightly confined at this time, including curfews and passes. Even this elaborate system ended when, after a period of suspension, transportation to Van Diemen’s Land was revived despite vigorous local opposition; the new convicts were all granted tickets of leave as soon as they arrived. After it was abolished, the people of Van Diemen’s Land celebrated their new status by changing the name of the colony in 1856 to Tasmania.

F R O M AU T O N O M Y T O O F F I C I A L C O N T R O L The experiences of convicts changed during the 80 years of transportation to Australia, with the introduction of new penal theories in England. British penology was in a transitional phase, between punishment of the body through hanging, whipping and the stocks, and the nineteenth-century faith in the reforming benefits of the solitary lives of the penitentiary. Prisoners in Britain gradually lost their individual liberty and came under the prying eyes of prison bureaucracies. British gaols were cleaned up physically and, according to the Christian reformers and bureaucrats, morally as well. The same occurred in different ways in Australia. Convicts who arrived before 1820 had the most freedom in their daily lives, but they paid for it through arbitrary treatment and physical beatings. These were reduced over time, but at the expense of their personal autonomy. In the early years, when there was no necessary relationship between wealth and legal status, the penal colonies were remarkably egalitarian places, at least formally and commercially. For some of the convicts in those years, a sentence of transportation gave them opportunities they would never have had in Britain or Ireland. They were granted land on emancipation, and a few became wealthy exporters of primary resources, living in grand houses overlooking their ships at anchor in Sydney Harbour. For others, transportation led to the hell of Macquarie Harbour or Norfolk Island. This economic freedom of the early convicts was based on a local law which contradicted that of England. The colonial courts reconciled the contradictions between the common law and imperial penal policy when they avoided the application of the rules of felony attaint. The attitude in Kable v. Sinclair was so deeply entrenched that it was not entirely dislodged by the apparently unambiguous Eagar decisions in 1820. Even the judges of the permanent Supreme Court recognised that the local law was a necessary expression of local practices. This showed that imperial law was not omnipotent. The rule of law had a different meaning under the gum trees. It sometimes required a movement away from English propriety rather than towards it. It was necessary to bend the law of attaint to bring the activities of convicts within the law’s scope, rather than leaving them to operate in a vast black market.

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AMATEUR LAW AT THE FRONTIER

AMATEUR LAW AT THE FRONTIER

L AW I N T H E B U S H It was impossible to transfer the whole of eighteenth-century English law into the Australian bush. The law was an expression of England’s distinctive values, a product of its history of class compromises over centuries and its own peculiar legal traditions, including the strength of local power. The law applied by a magistrate in Kent, for example, came as much from local patterns of paternalism and deference as from the common law. Where those local patterns differed in the colonies, their legal institutions and rules diverged as well. England has never had a unitary body of transferable rules. Colonial law also differed because the British government was unwilling to spend much money on it. In place of the vastly complex system of English courts, King’s Bench, Chancery, Exchequer, the ancient county courts and so on, the colonies had only a few courts. These were divided by function rather than history, with not much more than two courts each for criminal and civil law, for major and minor cases. Simple societies, the imperial authorities felt, needed only simple courts. Simple structures also tend to create simple laws. Many of the colonial courts covered divisions that were jealously guarded in England. Traditional distinctions between, say, common law and equity, or common law and ecclesiastical law, were likely to be blurred when one colonial court handled what, in England, would have been dealt with by a multiplicity of separate tribunals. Technicalities and arcane learning were all apt to be overlooked in the small court buildings of rough colonial towns. The tendency towards simplification of the law was increased when legal amateurs were appointed to administer law in the wilderness. Many of the 43

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judges in the early colonial courts had no legal training. Sydney, for example, did not have a professionally qualified judge for the first 22 years, apart from a brief period around 1800. Its law in these crucial years, when the basis of colonial society was established, was developed first by a marine officer and then by a retired military man who dabbled in poetry, metaphysics and alcohol. They also had little supervision from London, partly because the imperial authorities were less concerned about legal questions than about convict discipline. Nor was there much chance of supervision from London when a voyage there could take half a year. The frontier courts were not all the same. Some of them, such as in Adelaide, had professional judges almost from the beginning. There was also a difference in the experiences of criminal courts in penal societies, such as Van Diemen’s Land, and those in South Australia, which was established as a model liberal society free of the stain of imported criminality. The time of establishment of the colonies was important too. The 50-year gap between the foundation of Sydney and Adelaide meant half a century of change in the English law they inherited. The British parliament began its great legal reforms in that period. Nevertheless, the new Australian colonies faced common frontier legal problems. These included the application of law to violent clashes between Aborigines and the invaders, the settlement of disputes over the title to land, and the sometimes rapid growth of complex commercial disputes. There was added complication in the penal colonies, where the distinction between convict and free people had to be determined. Whether legally trained or not, the judges were often isolated from legal advice or colleagues with whom they could consult. They responded to these problems in diverse ways, resulting in a new form of legal pluralism. As the first two chapters showed, some of them stuck strictly to the English laws that formally bound them, but many invented new rules to deal with new problems. As time passed and the courts became more formally constituted, there was a general tendency for English law to be followed more closely— although there were many exceptions to this, particularly in local legislation. The coming of English propriety also happened inconsistently within each of the colonies. Just because the operation of law in Sydney or Hobart became more English did not mean that it necessarily did so out in the bush. During the nineteenth century and even into the twentieth, the frontiers gradually moved away from the original foundation points. The original conditions were repeated as new towns were established and local judges and magistrates were appointed. Records of the many ways of coping with the frontier legal experience lie unread in Archives Offices and Public Record Offices around Australia. Isolated and often untrained officials repeatedly had to cope with the supposedly simple conditions of new settlements. There is no certainty that they always followed official 44

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imperial or even colonial law. On the goldfields, in the Kimberleys and on Cape York, the spread of European occupation was followed by the law in all its diversity.

C I V I L C O U RT S I N A N U N C I V I L S O C I E T Y The first civil court to face these frontier conditions was the New South Wales Court of Civil Jurisdiction, which operated from 1788 to 1814. This was the court that decided Kable v. Sinclair (1788). Its decisions are used in this chapter to show the rich and distinctive nature of amateur law at the fringes of British civilisation, without suggesting that amateurism always operated in the same way. Local conditions and personalities had as much effect on the shape of its law as the inherited legal traditions of England.1 The founding document of the Court of Civil Jurisdiction, the royal decree known as the First Charter of Justice, gave it power over most of the common law of England, although not equity, bankruptcy, insolvency or divorce.2 Instead of the complex combination of competing superior courts in England, each dominated by its own traditions of complex learning, there was a single civil court in Sydney with a simple procedure. This court appears to have been created as an afterthought in the rush to establish the new colony. The imperial government neglected the colony’s legal position for its first twenty years, until it was forced to pay attention to legality when the government of William Bligh was overthrown by a military coup. In the meantime, the court had to deal with a rapidly developing trading economy. Convicts made money by working for others, growing food, trading with one another and, soon, exporting primary products. A jealous clique of military officers, the so-called Rum Corps, had a monopoly over sterling money, which allowed it a monopoly of imports as well. This did not last, and the loss of this privileged position led to clashes with convicts and emancipists, which had to be mediated through the rudimentary civil court. The colony’s courts had a broader function as well: in the absence of a free press, regular meeting houses, an established theatre or a legislature, they were the only institutions in which the colony’s political battles could be fought.3 The Court of Civil Jurisdiction was a curious legal creature, a hybrid of civil and military ideas. This showed the imperial government’s ambiguous attitude to the penal colony, which was both a prison and the kernel of a new civil society. Its judge, who sat in the court with two lay assessors, had the military title of Judge-Advocate, but most of those who held the office were civilians. Even the civilian judges were required to obey the orders of the governors, and for many years they also had to follow the ‘rules and discipline of war’. Although this was because of the perceived 45

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need for military control over the convicts in the criminal court, some of the military trappings were also attached to the civil court. Despite this, the Court of Civil Jurisdiction showed no bias towards the military. In fact, the court established the limits of its power. This was shown most clearly in Boston v. Laycock in 1795. John Boston, a free settler with a politically radical past, sued a number of soldiers for assault and battery. When he discovered that his pig had been shot, he called out ‘who is the damned rascal that shot my sow’. This was taken to be an attack on the sensitive honour of the New South Wales Corps, one of whom had killed the pig. Laycock then ordered some of his soldiers to beat Boston, which they did with vigour. Boston won the court action. The membership of the civil court at this time included the military leader, Captain George Johnston. Despite that, the court said: We know that the Military is a School of Honour, and that no term save that which brands him with the want of courage, can be more harsh in a Soldiers Ears than that of Rascal.—This however does not amount to a justification of the Assault, and it is the duty and province of Courts of Justice to protect from personal outrage all those who are in the Kings peace.4

Governor Hunter dismissed the defendants’ appeal, stating that all in the colony were under British civil law, including soldiers. He felt that the appeal had been engineered by the soldiers’ superiors, who were inimical to the civil powers. This action, in Hunter’s view, was part of a struggle between the military and the governors for control of the colony, a struggle that was not resolved until Bligh was deposed thirteen years later and subsequently replaced by Governor Macquarie. As well as his Jacobin republican politics, John Boston’s money was a challenge to the economic monopoly of the military traders. ‘Politics and economics coalesced to convince the officers of the danger of John Boston and his colleagues,’ according to one commentator on the case; Boston’s pig was a political and economic martyr.5 The message was that the civilian rule of law applied in the penal colony, but it was muted by the miserable sum awarded in damages, £2. In practical terms, the Judge-Advocates and two lay members of the Court of Civil Jurisdiction were free to remake the common law however they wished. There was an appeal from its decisions to the governor, sitting as a Court of Appeal, but the governors knew less law than the JudgeAdvocates. From the governors, there was a further appeal to the Privy Council in London, the highest judicial tribunal in the empire. Few could afford the time or money to do that. The main restraint on the judicial creativity of the Judge-Advocates was their own attitude to and knowledge of English law. The professional judges followed it more closely, but even they were willing to alter it at times. The only guidance available to the amateurs came from a few emancipist attorneys who practised in the court, 46

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and from whatever they could understand from their reading in the volumes of Blackstone and the few other law books in the colony. A

DISGRACE TO HUMAN JURISPRUDENCE

The first Judge-Advocate was David Collins, a marine officer, who was in office from 1788 until 1796.6 He had no formal training in law, and so any legal knowledge he managed to acquire came from the law books brought on the First Fleet. Although he had a low opinion of small debtors and convicts, his basic social and political attitude was paternalistic. He presided in the starvation years of the colony, when the primary concern was to grow enough food to keep the colonists alive. In both civil and criminal law, Collins established patterns that were continued well after he left Sydney. Collins was succeeded by Richard Atkins, who was among the most flamboyant of all Australian judges.7 The drunken younger son of an aristocratic family, he fled England to escape his creditors. Like Collins, he had no legal training. He was in office from 1796 until 1809, although he was replaced by Richard Dore from 1798 to 1800, and by the rebels in 1808. Atkins was in charge of the colony’s law at the crucial time when the small prison camp developed into a farming community of emancipated settlers and a centre of export and import trading. Richard Atkins was an eighteenth-century paternalist gentleman who lived on into the nineteenth in the peculiar environment of convict Australia. His mental world was that of corrupt old England, with its nepotism and favours to the deserving poor. He believed in a sharply stratified society, but felt that those with privileges were obliged to look after those without. Atkins was no neutral and impartial judicial figure, hiding behind the disinterested face of the law. He was at the centre of ferocious political and constitutional debates, which culminated in the arrest of Bligh and the only coup d’etat in Australian history. His debtrecovery decisions, in particular, favoured the poor farmers along the Hawkesbury River over the officer-traders to whom they owed money. In the conflict that eventually developed between the governors and the officers, Atkins sided with the paternalist governors. He suffered for this choice. No other legal figure in Australian history has been attacked so colourfully. In 1799 he took a defamation action against John Harris, an ally of Bligh’s opponent, John Macarthur. Atkins complained that he had been called a swindler, but Harris’ defence was aggressive; he opened his case with the statement that ‘The time is now come which has been long wished by every person of Character in the Settlement, when the black and disgusting Catalogue of Crimes Committed by my Opponent will be displayed’.8 47

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Atkins’ reply was equally impressive. He claimed that Harris’ statements had ‘arisen from the Spirit of party from a Combination from a Conspiracy at the head of which’ stood Macarthur, who ‘was hiding his diminished head like a Toad in a Hole feeding on his own Poison’. Now ‘he stalks abroad like Sin & Death seeking whom he may devour’. Conflicts of this kind were never simply personal. They involved the relationship between the military and the government, the limits on the governors’ autocracy, the independence of the courts and, at the broadest level, a dispute over the nature of the colony: would it be a place of uncontrolled trade by those who had not been sent as convicts, or would it be a place of rehabilitation of emancipists through working their own farms? Atkins’ legal decisions and support for the governors stepped on the financial, military and commercial toes of the most powerful people in the colony. As a result, he should not be judged by the statements made against him by his enemies, Macarthur and Harris. It is clear that they were trying to manipulate the courts for their own ends. Despite Atkins’ general support for his paternalist policies, Bligh also attacked him, claiming that Atkins was ‘a disgrace to human jurisprudence’.9 This and Bligh’s claims that he was indecisive and unable to search for the truth were an absurd exaggeration, since Atkins had the respect of the other governors despite his drinking and his legal ignorance. Nor do the minutes of the civil court support Bligh’s allegations of corruption or incompetence by Atkins. He did create his own law at times, as had Collins, but criticism of this comes rather strangely from Bligh, who boasted to Atkins ‘The law sir! Damn the Law; my will is the law, and woe unto the man that dares to disobey it’.10 A number of the governors pressed England for the appointment of a professional judge, partly because they felt bamboozled by the legal chicanery of the emancipist attorneys. When the first trained judge, Richard Dore, arrived in 1798, Governor Hunter soon regretted it.11 Theirs was the first clash between the judiciary and the executive in Australian history. The governors wanted professional judges, largely to confirm that they, the governors, were legally correct. Instead, they began to subject the autocratic governors to the rule of law. According to Hunter, Dore quickly became close to the trading clique which plagued him and his successors as governor, King and Bligh. Dore was no more neutral than Atkins, but his preferences went the opposite way, especially in debt-recovery decisions which favoured the traders. He died in 1800, and Atkins resumed his judicial career. The military officers took their final step against the governors when they arrested Governor Bligh and threw him out of office on 26 January 1808.12 They sacked Atkins and replaced him as Judge-Advocate with their own officers, but soon found that they could not do without him. No one 48

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was keen to do what was a difficult job in normal times, but was now at the heart of the illegal, even treasonous action the rebels had taken. After a brief period of martial law, the civil court was back at work within a month. According to the imperial officials and those who backed Bligh, this was only a continuation of the form of the law, not its substance. When Governor Macquarie arrived at the end of 1809, he declared that all the rebel appointments and the decisions of the rebel courts were void. As a practical matter though, many of the decisions were allowed to continue uninterrupted. Judge-Advocate Ellis Bent arrived with Macquarie, determined to bring local law into close alignment with that of England. He reported a few months later that ‘I have found everything in my department in the utmost confusion, and that all law business has been done in the most slovenly, irregular illegal manner conceivable’.13 That was as much a comment about Bent as about his predecessor Atkins. Even Bent was willing to alter formal law, however. He followed Collins’ and Atkins’ decisions on felony attaint and the admission of emancipist lawyers, and made some of his own rulings, which breached the First Charter of Justice. Bent began the process of replacing a cheap, easily comprehended system with an expensive one based on the obscure learning and craft of England. Ellis Bent and Lachlan Macquarie’s friendly relationship on the voyage from England gradually deteriorated once they reached Sydney, with a sharp decline after 1814, when Ellis’ pompous brother Jeffery took up his position as judge of the short-lived first Supreme Court. Ellis clashed with Macquarie over the provision of a proper court house in place of the shambles that Atkins had occupied. He also refused to draft new port regulations for the governor, arguing that they contradicted English law. This was not yet the time for a judge to strike down a governor’s order, however. Judicial review of legislation would come later in the colony’s history. Macquarie’s main conflict was with Jeffery Bent, over his refusal to open the Supreme Court until two properly qualified attorneys were ready to practise there. These arguments led to the recall of the brothers. THE

FREEDOM OF WOMEN

According to English common law, a husband and wife were one person. This did not imply equality between them, since the assumption was that the man was the brain and the woman the body which produced heirs. On marriage, her goods and leasehold land became his, as did the income from any freehold land she might have possessed. Her debts also became his to pay, and she could not sue in the courts except with his agreement and in both their names. Wives were unable to enter into contracts and could not be sued, except in the joint names of themselves and their husbands. An unmarried woman, a feme sole, had the same legal rights as 49

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any man. It was marriage that disabled a woman, by turning her into a feme covert.14 Married women were not completely incapacitated by the common law. (1) They could be their husbands’ agents, whether explicitly or by force of circumstance, and collect their debts, buy goods or enter into contracts on their behalf. This gave them a degree of practical freedom, although largely within whatever limits their husbands imposed. (2) The wives of attainted convicts had greater rights than others; they were able to sue in their own names, because their men were dead in law and unable to take any legal actions. (3) The third method by which married women retained legal freedom was through the creation of a separate estate for the new wife under a marriage settlement. This was much less important for the independence of wives in colonial Australia than the local courts’ flexibility with English rules; simple evasion of the law was the preferred technique, rather than the complexity of the law of trusts. The Court of Civil Jurisdiction bent these rules to suit New South Wales society.15 In fact, married women of all social and legal classes, whether connected to convicts or not, had a much greater degree of practical and legal freedom in the penal colony than Blackstone’s stern statements about the dependence of wives might suggest. They were not as legally free as men, but married women did engage in commerce and its usual companion, litigation. The local custom was that wives could hold property alone, including land. They also issued and received promissory notes in their own names. The civil court allowed them to trade in their own names, and many of them held liquor licences. This freedom was necessary when their husbands were assigned convicts and restricted in their commercial activities by the rules of convict attaint. Remarkably, it was also extended to the wives of free men. There may have been a difference between these groups of women, however. The rule applied by the civil court seems to have been that the wives of free men were able to sue in their own names only if their husbands were absent from the colony. This explains the liberty of John Macarthur’s wife, Elizabeth. Otherwise, the commercial freedom of the wives of free men was restricted by the rule that they had to sue for their debts in the joint names of themselves and their husbands. In effect, these women could trade on their own, but only if they had their husbands’ permission to do so; no trade could be successful in early New South Wales without the ability to sue. The same kind of local law making also helped convict women who cohabited with military officers. When the men returned to England, they often left behind a woman and children, as happened to Sarah Cooley when she was abandoned by Lieutenant Neil Mackellar in 1802. The civil court later gave her and their children equal shares in his property in New South Wales, on the assumption that he had died. The same applied to 50

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women whose men left no will: without leaving a will at common law they would have received nothing.16 This did not suit the moralist Governor Macquarie. Within two months of his arrival, he issued an order to prevent women recovering property ‘on the sole ground of having lived for a number of years with the deceased in a state of illegal and criminal intercourse’. He recognised that his proclamation could have ‘distressful consequences’ but said that the effects of the order could be avoided by marriage.17 This left these women in an awful dilemma, because they and their children, not their men, paid the cost of their ‘illegal’ cohabitation. Macquarie’s proclamation was, from an imperial perspective, correct but unnecessary. It was merely an accurate statement of the common law. This was one of many situations in which the imposition of British notions of legal propriety upset a local, legally enshrined custom. The magistrates also went beyond their formal powers in family law. At common law, they had no right to order husbands to pay maintenance to their deserted wives. This was a matter for the ecclesiastical courts, but the early New South Wales magistrates simply assumed that they could make these orders despite not being given formal power to do so until 1840. They did this as part of their general supervisory power over convicts, and then extended it to all members of the community. The magistrates assumed a loose jurisdiction over convicts and the poor, mixing criminal, civil and family law with convict discipline.18 SHARP

O P E R AT O R S I N L A N D

When Dick the Needle (Samuel Phelps) bought a farm in New South Wales for the price of a mare and a foal plus £5, he was acting in accordance with locally accepted legal customs. He and the seller did not register the purchase, nor even write it on the Crown grant, the document of title. The seller claimed that Phelps had only leased it, and therefore had no power to sell the full title to a third person. Ellis Bent allowed all of this informality to stand, when he declared that the buyer from Phelps obtained the whole title. Possession of the Crown grant document plus oral evidence were enough evidence for Bent.19 Nevertheless, the whole transaction was legally suspect because it conflicted with several governors’ orders requiring that land sales should be registered. The first of these was made in 1800, 62 years before the first land registration Act in England. Under the orders, unregistered contracts were void, which should have eliminated the local custom of selling land simply by handing over the Crown grant in exchange for the price.20 This practice continued despite the orders, and the Court of Civil Jurisdiction supported it. In doing so, the court also ignored the complex English law of conveyancing. There were four competing standards of conveyancing in 51

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early New South Wales: the common law, the governors’ orders, the law applied in the civil court, and local custom. Despite Blackstone’s theory, the common law was irrelevant. Popular practice was so well entrenched that even Ellis Bent seems to have recognised that he would have caused more harm to the colony’s chain of legal titles by following the governors’ orders than by allowing customs to stand. English land titles were just as confused as those in New South Wales, but for entirely different reasons. Its land law was riddled with feudal duties and overlapping rights, and this complexity was multiplied by the obscurity of arcane conveyancing laws. Land was central to the social and political structure of England even as late as the turn of the nineteenth century, which placed it in an especially complex legal position. The obscurity of land titles in New South Wales was based on an egalitarian approach to land holding rather than an aristocratic one. Once it was snatched from its Aboriginal owners, land was distributed by the governors to members of all levels of society, from emancipists to wealthy officers. This meant that there was no particular social significance in the ownership of colonial land. It was as easily bought and sold as a horse, and often much less expensively. Its abundance and cheapness meant that it was frequently and easily passed from one person to another, some of whom were illiterate. That, and the absence of a large legal profession, led to the local customs for transferring land and to the uncertainty of titles. The underlying theory of colonial land law was based on the notion of terra nullius. The Crown was assumed to be the only valid source of titles. When the governors granted land, they did so on conditions such as the payment of quit rents and that the occupier of farming land should work it. At common law, quit rents were originally a substitute for feudal services. Over time, however, they came to be a form of purchase by instalments in Australia, rather than rent in any sense, taking land law further from its English parent. Australian land law was thus English in origin, although not necessarily in impact. As in republican America, individuals in colonial Australia held land without the ancient baggage that accompanied it in England. The egalitarian attitude to land holding flowed into the practice of its land law, if not the theory.21 FADING

INK AND PETTY BANKERS

Early New South Wales was plagued by a lack of sterling money. The officers were paid in it, but ordinary people acquired it only by selling food to the government or supplying goods or services to individuals who had some sterling. As a result of the shortage of official money, many transactions were paid for in acceptable commodities, such as wheat and livestock. Wheat was particularly useful, because it was the staple crop of the colony, and the government stores bought it at a regular price. Some transactions 52

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were paid for in liquor despite a poorly observed prohibition on payment in spirits for such things as land and labour. Those who did use liquor as a currency took a risk. The penalty suffered by one convict, John Green, for exchanging spirits for wheat was a forfeiture of both, and confinement at Norfolk Island.22 People also issued promissory notes. They became known as ‘currency’, which was also a derogatory nickname for those born locally. The connotation was of something unreliable, not as good as British made (or born) ‘sterling’. Promissory notes were drawn by a debtor, promising to pay the creditor a fixed sum in the future, either at a fixed date or on demand. Many of the notes promised payment in sterling money, but some of them promised to pay in currency (which incorporated a discount down from sterling to currency) or in goods. They could be issued quite casually, such as those drawn on scraps of paper for liquor debts. Others were issued formally, when the maker issued printed notes as a regular business practice, sometimes called ‘petty banking’, hoping to gain by the difference in value between sterling and currency. The most useful feature of promissory notes was that they were transferable from one person to another, allowing them to circulate as an alternative to coins or bank notes. They were also negotiable, which meant that a buyer of a note could take better title than that of the seller. If, for example, a person stole a note and then passed it to an innocent person in exchange for goods, the innocent person obtained good title to the note, regardless of the theft. Negotiability thus reinforced their value as currency, because they allowed some degree of safety to people who accepted them. Promissory notes were both credit notes and currency, but their value ultimately depended on the credit-worthiness of the people who drew them. If the original drawer was insolvent, a promissory note was ultimately worthless, unless one of the holders in the meantime had signed (indorsed) it. Those who drew these notes included the transported dishonest poor of Britain, many of whom were illiterate; sharp practice was at the heart of the New South Wales monetary system. This was expressed well by W. C. Wentworth in 1819: Such, however, has been the necessity for a circulating medium of some sort or other, that the public, as if by a general implied consent, without any expressed convention, have permitted the existence and increase of this worthless substitute, and have thus affixed a kind of nominal value to that which is in reality worthless.23

The governors tried to control the issue of promissory notes, but most of their currency orders were ignored. There were constant complaints about fraud and forgery concerning promissory notes, including an allegation that some drawers deliberately used fading ink so that the note became worthless after a while. Macquarie was concerned about the activities of 53

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petty bankers from the lower orders, including convicts, who issued notes, received goods for them, and then declared themselves unable to honour them. In their attempts to control this, the governors prohibited the use of hand-drawn notes, the issue of notes by convicts, and the use of notes drawn in anything but sterling.24 None of these regulations had much effect, largely because there was no adequate substitute for the currency system that the people of New South Wales had developed. Promissory notes were flexible and accepted by the general population. The monetary system floated on a sea of doubtful promises, but it was generally accepted. These local practices were supported by the civil court which, even under Ellis Bent, ignored some of these governors’ orders. It continued to enforce handwritten notes, for example. As in land law, the supposedly autocratic governors were unable to enforce their own views of regularity and order. This was a curious form of judicial control over the actions of the governors, under which their orders were simply ignored rather than being struck down as unlawful.25 FORCED

LABOUR

The labour law enforced by the Court of Civil Jurisdiction was close to the law of England and its characteristic cruelty.26 Master and servant law at the beginning of the nineteenth century was still an expression of paternalism. Each side owed duties to the other, but the law was weighted in favour of the master. There was no clear distinction between criminal and civil law in this area. For instance, if a sailor refused to work because of an alleged breach of the master’s obligation to him, the master might have punished the sailor under his disciplinary powers. Once they reached Sydney, the sailor would then test the legality of the master’s action by suing for false imprisonment or assault. In effect, the formal legal system judged the informal one on board the ship. The inequality of power between the parties was as evident in the law as at sea: if the magistrates found for the sailor, the master would be required to pay damages; if they found against him, he would be sentenced to be flogged for mutiny. The inequality of the law was also clear when a sailor joined a ship on the promise of a share of the profits of the voyage, a ‘lay’. People often sailed on seal-catching voyages under these conditions, but they frequently recovered only the cost of the food and maintenance supplied to them by the ship’s owner. In effect, they worked for nothing. Some of these seal killers were also left without maintenance for long periods in hostile places. They were entitled to compensation for this, but usually received only small amounts, even when they were left over winter on subantarctic Macquarie Island without food or shelter.27 Sailors also lost their claims for wages or a lay if they left the ship early. This was an application of the common law’s entire contracts rule, which 54

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stated that no money was payable to people who failed to complete the whole of their agreements, even if they had performed most of their work. The rule required an investigation into the reason for the termination of the sailor’s work. Wages were payable if the master had ended the contract, but not if the worker had done so. In one case a sailor showed that he had been ‘forced over the side with pistols & cutlasses’ after complaining that he would not accept native provisions after he joined a ship at ‘Bola Bola’. He had been entitled to object to the food, the court found, which meant that his master was responsible for the ending of his contract; as a result, the sailor was entitled to receive wages for the work he had done.28 The Aborigine whose case was discussed at the beginning of chapter 1 lost his claim because of this rule and the generally restrictive interpretation of sailors’ lays. There was bias against workers in both local and English law. THE

M I S ERY O F D EB T

The Court of Civil Jurisdiction’s most original contribution to law making was in debt recovery. Above all, the people of early New South Wales had a common desire to make money. One colonist said ‘all around it was necessary to make money, make it honestly if you can, but you must make money’.29 This passion was expressed most fully in an extraordinary quantity of civil litigation. From 1797, hundreds of cases were commenced each year (more than a thousand in some years), all from a litigating population of only a few thousand people. Most of these cases were for debt, on claims such as non-payment on promissory notes or for goods delivered. The colony’s official debt-recovery law was a simplified version of that of England. According to the First Charter of Justice, there were two primary means of enforcing a debt: imprisonment for debt and execution against goods. Under the latter, the Provost Marshal took the debtor’s goods, sold them at auction and paid the proceeds to the creditor. There was no direct remedy against the debtor’s land or promissory notes, but creditors hoped that a period in gaol would convince their debtors to sell these assets, too, to pay what was owed. If the charter had been followed, colonial law should have been harsher than that of England, because the Court of Civil Jurisdiction had no power over insolvency or bankruptcy. The English law of bankruptcy allowed traders who owed more than £100 to declare themselves bankrupt, pass most of their property over for distribution to the creditors, and be released from any further claims. Unlike insolvency, bankruptcy allowed debtors to be discharged entirely from their past debts and it did not require a period in debtors’ prison. Insolvency was available to all debtors and not just traders, but it only allowed them to be released from gaol, not from their 55

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debts, once they passed their property on to their creditors. Under it they lost their property but still had to pay their past debts. The absence of these laws in New South Wales meant that those who were unable to pay their debts should have been at their creditors’ mercy. Imprisonment for debt was, in theory, perpetual unless the creditor chose to release the debtor. Here, though, the Court of Civil Jurisdiction made its own law. The political and social preferences of the Judge-Advocates were more apparent in debt-recovery law than in any other area. Richard Dore was accused by Governor Hunter of showing bias towards traders when he allowed them to commence their actions in a way which breached the charter. Hunter claimed that Dore was the dupe of monopolists who sold a torrent of useless and destructive articles to petty dealers, who sold these on to the farmers, leading them to debtor’s prison and the loss of their farms. The court records show that Dore was much more inclined to order the imprisonment of debtors than Atkins or Collins. Once again, the ordinary civil law of colonial New South Wales was a site for political and social struggle. Bent’s preferences were more muted, as he moved the law closer to its English parent, but he was also willing to bend the charter on this point, claiming that ‘no injustice is done to either party’.30 In doing so, he was following English practice. English debt-recovery law favoured creditors, and so Bent’s closer adherence to English law had the same effect as Dore’s more overt preferences. Collins and Atkins were much more sympathetic to indebted emancipist farmers than Dore and Bent. Collins heard few debt-recovery cases before his period in office ended, but in 1796 he established a remarkable pattern of flexibility which Atkins inherited and expanded. Under the charter and English common law, creditors had a right to a judgment in sterling and almost immediate payment. If the debtor failed to pay within a few days of the judgment, the creditor could use either imprisonment or the remedy against the debtor’s goods. Collins realised that this would lead to the loss of farms and the imprisonment of the class of people whom the governors wished to encourage to grow the colony’s food. He and Atkins allowed payment in goods such as wheat or livestock and gave them extended periods to pay their debts (for example, until after their harvest), sometimes on security of a conditional assignment of their assets. They allowed farmers to give securities over their growing crops, which were of greater value than the land on which the crops grew. Collins and Atkins also ordered payment by instalments and even by an assignment of the debtors’ labour if that was the only valuable asset they had. None of this was lawful by English standards. Dore ended this leniency in his brief period in office, but Atkins revived it after he was restored to the position. Bent returned the court to the harshness of the common law when he replaced Atkins. 56

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The same pattern of leniency eased the effects of the absence of insolvency and bankruptcy laws. When William Cox, the failed paymaster of the New South Wales Corps and later the builder of the road across the Blue Mountains, found he was unable to pay what he owed, he was not sent to Sydney Gaol for debt. Instead, a local form of hybrid bankruptcy and insolvency law allowed him to escape the harshest consequences of his debts. The same occurred to the emancipist attorney, George Crossley. Their treatment shows that not all debtors were treated alike. Some were imprisoned, but not, it seems, if they were wealthy or well-connected. Most of those who went to gaol were poor. These were important changes to English principles. The mass-produced nature of English debt-recovery law was set aside as Atkins created remedies to suit the needs of each debtor. A broad notion of fairness replaced the strictly rule-bound approach of the common law that Ellis Bent and Richard Dore followed. Above all others, these cases show the success of Richard Atkins as an amateur judge. He adapted the common law to meet local circumstances, even in the face of immense personal pressure from John Macarthur and his allies. CRIMINAL

L AW I N A C O N V I C T C O L O N Y

There was a similar combination of local customs and common law traditions in the criminal court, but its procedure and structure showed a much greater military influence than the civil court.31 The Court of Criminal Jurisdiction consisted of a panel of six uniformed officers plus the Judge-Advocate. The judge had an odd combination of advocacy and judicial roles: he had to prosecute crimes, advise the defendant, reach decisions on matters of law, and play a role in what was effectively a jury. He could be overruled even on matters of law. Military courts martial were similar, except that the Judge-Advocate had even less power there, because he had no vote on the judgment at all. This structure lasted until the criminal court was replaced by the permanent Supreme Court in 1824. The civil court was abolished in 1814 and replaced by the first Supreme Court, whose judge did not bear a military title. The imperial authorities felt at that time, however, that military trappings were still necessary for the enforcement of the criminal law of a penal colony. Despite its military appearance, the criminal court applied civilian law to all residents of the colony, convicts, soldiers and free people. Alex Castles concluded from a study of the court’s minutes that over the whole period, ‘there seems to have been general adherence to many of the recognised standards of the day as far as English trials were concerned’.32 More recent research by Barry Simpson reached the same conclusion. This does not mean that the punishments imposed by the court, or by the magistrates, were the same as those in England, nor even that they were 57

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lawful, as discussed in chapter 2. Governor Phillip warned in 1788 that although capital punishment was not imposed for stealing poultry in England, it would be in Sydney. The adaptation of criminal law, the blending of the common law, convict discipline and colonial expectations, commenced at the very beginning of the colony. Military influence was much easier to impose in the criminal court than in the civil one, and it has been accused of partiality in political cases. That is a major theme of Evatt’s book, The Rum Rebellion. Evatt argued that the officers of the New South Wales Corps used their control over the criminal court to reinforce their commercial and political power. Isaac Nicholls, for instance, was an emancipist overseer of convicts who, Evatt said, enraged the military. On the basis of legally inadmissible evidence, he was convicted by Dore’s criminal court in 1799 of receiving stolen tobacco and sentenced to fourteen years at Norfolk Island. He spent more than three years in prison before Governor Hunter acquired his free pardon. This military influence was nowhere more evident than in the 1808 trial of Macarthur for sedition, the immediate precipitating cause of the rebellion against Governor Bligh. Macarthur’s six fellow officers on the court found that Judge-Advocate Atkins could not sit on the trial, which caused it to be aborted. Bligh was arrested and thrown out of office the next day (an act of high treason, according to Evatt), and the rebel government arranged for the retrial of Macarthur. Not surprisingly, he was acquitted. Clearly, the rebel officers felt that the form of law was important, even if no one would have been fooled into thinking that this trial was impartial.33 COLONIAL

L AW M A K I N G

Amateurism, the distance from imperial supervision, a concentration on convict discipline, a simple court structure, and the absence of many of the central features of English society, all had an effect on the shape of New South Wales law in the first 30 years. Collins and Atkins knew little law but were imbued with paternalism; this was especially evident in their hand-crafted debt-recovery law. Ellis Bent, by contrast, was determined to apply the traditions of English law in which he had been trained, but even he conceded that it was sometimes necessary to adapt that law to local circumstances, such as in his conveyancing decisions. At other times, he applied English law even when it was in conflict with the charter under which his court was constituted. There was a complex relationship between personalities, legal traditions, and the social circumstances in which those traditions were transplanted. There were four primary actors in determining the shape of colonial law. In imperial hierarchical order, these were English law, the governors, the Judge-Advocates and the general population of the colony. In practice, this hierarchy was often reversed, with popular conceptions of law prevailing 58

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even over the inherited traditions of England. The popular view was often an expression of local trading values. The governors’ attempts to limit those values frequently failed and the law became an expression of trading interests more than a restriction on them. This reversal of the hierarchy does not mean that the penal colony of New South Wales was a democracy; it had a heavily autocratic government, although the autocrat did not have it all his own way. Eventually English law was imposed more closely, but the coming of a more formal version of the rule of law was not necessarily a triumph of freedom over the restrictions of a penal colony. Convicts and women both found that English law was much more restrictive than locally developed legal customs. Apart from the lawyers, those who gained most by closer adherence to English law were people whom it favoured most, particularly the traders who sought to enforce their debts. The civil law of New South Wales was recognisably British in its language, its procedures and its structures, but this does not mean that it was a simple copy of the common law. English law was changing in this period and would continue to do so over the next century. Many of the reforms that would be won after so much effort in England, such as married women’s rights, the restriction of imprisonment for debt, land title registration, and a move away from excessive formality and legal complexity, were tried in the penal colony of New South Wales much earlier, but for different reasons and with only a temporary effect. After the common law came to be applied more closely in Australia, these principles had to be reintroduced by legislation.

A M A T E U R L AW O N T H E P E N A L I S L A N D S Amateurism prevailed in Van Diemen’s Land even after professional judges began arriving in Sydney. The island was under a double colonial bind when it was part of New South Wales between 1803 and its separation as a new colony in 1825. In these years it suffered neglect from both Sydney and London. There was no formal provision for civil litigation there before 1816, apart from whatever the local magistrates might have provided. In that year, a Lieutenant-Governor’s Court began operation for cases up to £50. Like the Governor’s Court in Sydney, it had the same structure as the original Court of Civil Jurisdiction of New South Wales. Its judge was a military officer, who, according to Melville, often said that he was not a lawyer and would not be bothered with the law. More serious cases should have been heard in Sydney, except when members of the first Supreme Court crossed Bass Strait to hear them. Van Diemen’s Land obtained its own professionally staffed Supreme Court in 1824, formally ending the frontier period. Castles stresses that the frontier experience in Van Diemen’s Land was 59

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different from that on the mainland. When it finally began sitting in 1816, the Governor’s Court in Sydney was quite technical in its application of legal forms, but the island’s Lieutenant-Governor’s Court remained more like the old New South Wales civil court in its amateur days. It avoided the £50 limit by the use of fictions, and like a latter-day Richard Atkins its judge made orders for payment in goods such as wheat. He also allowed a convict attorney to practise, even after the arrival of free lawyers; by this time, the Bents had ended this in Sydney. Like the earlier civil court in Sydney as well, the Lieutenant-Governor’s Court allowed married women to sue regardless of the common law’s restrictions on their legal rights. As chapter 2 shows, the magistrates of Van Diemen’s Land also applied illegal penalties in criminal cases during the island’s long period of legal neglect. The differences from the mainland stressed by Castles include the early development of the custom of land squatting and the long-term continuation of decentralised policing on the island.34 Frontier notions of law also operated during the first settlement on Norfolk Island. The records of the island’s civil court appear to have been lost, but, as chapter 2 shows, surviving commercial correspondence between a convict agent on the island and his principal in Sydney proves that convicts there had access to property and the courts. The agent wrote that Three Members that composed [the court] seem to be of one Mind that equity and Justice will govern them in their desition [sic], and that any little defect that the Law may point out on this head ought not to be an obstacle in the way of Justice.35

The abolition of this court because of the decision to abandon the first settlement of the island led to a crisis among creditors, who found that their debtors suddenly lost interest in paying what they owed. This was exacerbated by the fact that there was not yet a civil court in Van Diemen’s Land, where the Norfolk Islanders were resettled. These civil courts may have been less strict towards debtors than the common law, but they were essential for the enforcement of commercial debts. The commandants and magistrates of Norfolk Island, especially the monstrous Foveaux, sometimes showed little concern about the formal limits on the punishments they could inflict. No British subjects were further away from legal protection than the convicts of this remote island in the Pacific.

M O R E T O N B AY A N D P O R T P H I L L I P The European occupation of what became Queensland began with the establishment of the Moreton Bay penal settlement in 1824. Until its closure in 1842, it was like the second settlement at Norfolk Island, where the commandants had the powers of magistrates to punish minor crimes 60

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and disciplinary breaches. Between 1842 and the separate creation of Queensland in 1859, free settlement was allowed there, within what was still the colony of New South Wales. Frontier conditions were in effect during the early part of this period, when the law was administered by legal amateurs. In 1842, a salaried police magistrate was appointed. He was a naval officer, who sat with two other lay justices of the peace as the court of petty sessions. They were given power to hear small civil cases in 1847. Larger civil and criminal matters had to be heard in Sydney, but the inconvenience of that meant that many cases were abandoned. The first circuit visit by a New South Wales Supreme Court judge took place in 1850. It ended the brief period of amateurism in the north, which was half a century later than the equivalent in Sydney. There was no resident judge in Queensland until 1857, although the first of these so-called residents was reluctant to live there. After Queensland separated from New South Wales it acquired its own professionally staffed Supreme Court.36 The law in Victoria, which was originally the Port Phillip District of New South Wales, was affected by its unauthorised beginnings and by the fact that it had few convicts. Its permanent European settlement was commenced unlawfully in 1834; it was officially opened in the next year. Before the appointment of a police magistrate in 1835, the local community had its own method of settling disputes by the appointment of an arbitrator. The first magistrates had only minor criminal law powers. As usual, more serious criminal cases had to be sent to Sydney. This was eased in 1839 when Edward Brewster, an Irish barrister, was appointed to head the Court of Quarter Sessions to hear some of the more important cases. In the next year Brewster was appointed as commissioner of a Court of Requests in Melbourne, with power to decide small civil cases. Finally, in 1841, a judge of the New South Wales Supreme Court was appointed as the resident judge in Melbourne. The amateur period had lasted only a short time. Victoria acquired its own professional Supreme Court when it became a separate colony in 1851.37

THE WESTERN FRONTIERS Western Australia was established as a free colony in 1829. Its free status meant that, like South Australia seven years later, it acquired trial by jury and a legislature almost from the beginning, rather than enduring the humiliating wait that the penal colonies had suffered. The local courts in both of the western colonies were created by their own legislatures rather than imposed by England as happened in the east. Before the first passage of legislation at Swan River, the new governor established criminal courts by prerogative, when he appointed magistrates and created a Quarter Sessions Court. He had been instructed by imperial authorities to ensure 61

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the settlement of civil disputes by arbitration until formal legal structures could be established. The magistrates became involved in civil cases in this informal period, apparently as arbitrators or investigators; two of them were trained lawyers. In 1832 the first Act of the new Western Australian Legislative Council created a Civil Court with all the powers of the superior common law courts of England, plus some of those of the ecclesiastical courts. This court had simple procedures with a broad mix of powers, much like the first civil court in Sydney. Although from the beginning all of its judges (who were called commissioners) were legally trained, they were willing to be flexible about the application of English law. There were doubts about their power over equity, for example, but they exercised it anyway. The same had occurred 30 years earlier in Sydney. They were also reluctant to allow the cruelty of imprisonment for debt to pollute the free air of Western Australia. The civil court was replaced by the Supreme Court in 1861.38 South Australia appears least likely to have had rule of law by amateurs, because it had a legally qualified judge, John Jeffcott, almost from the beginning.39 The colony was proclaimed to commence at the end of 1836, and in the few months before Jeffcott arrived there was a brief period of litigation before laypeople. In 1837 the Supreme Court was established by an Act of the Council of Government, the first local legislature. This court was given jurisdiction over common law and equity, and sufficient ecclesiastical power to deal with the succession of deceased estates. Minor courts were also created for less important civil and criminal cases, the most significant of which were conducted by paid resident magistrates. This judicial structure in South Australia seemed quite straightforward, but the practice of law at the foundation period of any colony was never that. Jeffcott’s late arrival was apparently caused by elaborate plans to avoid his creditors. He was another in a series of heavily indebted colonial judges. Before his appointment he spent time in France to avoid imprisonment in England, both for debt and on a charge of murder. While holding another colonial judicial appointment he had killed a man in a duel, but was eventually acquitted when the prosecution failed to offer evidence against him. There was some substance in John Dunmore Lang’s complaint that the ancient practice of the Colonial Office was ‘to send out men for the highest appointments in the colonies who have been bankrupt alike in character and purse’,40 at least as far as their purse was concerned. After his arrival in Australia, Jeffcott preferred to be in Van Diemen’s Land for reasons of the heart and to avoid the political squabbling of South Australia. He drowned, however, while waiting for another passage to the island, having completed little judicial work in Adelaide. He did, though, commence the South Australian practice of transporting its unwanted 62

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criminals to the depraved penal colonies of eastern Australia. South Australia’s purity from the convict stain was thus ensured. Jeffcott’s temporary successor at Adelaide, the eccentric Henry Jickling, commenced the first civil hearings in 1838, but he was apparently incapable of controlling his rowdy court. Like a student teacher’s nightmare, he fled from the personal confrontation of one hearing. Orderly litigation did not begin until Jeffcott’s permanent replacement, Charles Cooper, arrived in 1839. Cooper’s preference was for the close application of English law. The absence of transported convicts in South Australia removed some of the justification for creating a unique local law. This felt like a normal English colony following normal law. English law was planted along with Adelaide’s English gardens and squares. Grand juries were used, the colony’s criminals were transported to Van Diemen’s Land, English precedents were followed, and technical procedural details were adopted in litigation and conveyancing. Whenever exotic fauna or flora are introduced into Australia, the results usually differ from those in their places of origin. We need only look at the devastating effects of rabbits in the countryside to see that. Differences emerged between South Australian and English law in these early years, despite the self-consciously English preferences of the colony’s judges. Some of these legislative and judicial innovations did not last, such as the judicial decision that local law did not allow creditors to arrest their debtors.41 According to Castles and Harris, South Australian variations from English law, such as the unified structure of the court, the use of paid magistrates and the different organisation of the legal profession, ‘all pointed to a legal system which was already developing important characteristics and traditions of its own’, different both from England and the neighbouring colonies.42 This was not amateur law, however. For that, it is necessary to look at the very earliest decisions, and at litigation before lay magistrates. As the South Australian experience hints, locally developed ideas about law did not necessarily end as soon as professional lawyers arrived. Ellis Bent found that he could not impose English laws as completely as he had planned, and some later legally trained judges did not try as hard as him to do so. When John Wylde, his successor from 1816, gave evidence before Commissioner Bigge in 1820, Wylde showed a familiar attitude: Q. Do you consider yourself bound to pursue the principles of the English Law in all the cases that come before you? A. Not so broadly as the question imports, tho’ the principles of British Law have been generally considered proper to influence every decision but not as being British Law but as consonant to essential Justice and Right.43

Later chapters will show that the extent of the adoption of English law has been contested ever since.

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INNOVATION SMOTHERED? Formal changes from the 1820s to the 1850s INNOVATION SMOTHERED?

A N E W B R I TA N N I A I N A N O T H E R W O R L D In 1819 W. C. Wentworth, the son of a convict mother and an almost convict father, published a call for freedom for the penal colony of New South Wales. In his Statistical, Historical and Political Description of the Colony of New South Wales, he argued for jury trial and a representative assembly. He wrote the book while living in England. After training as a barrister there, he returned to New South Wales in 1824, a leading figure in the emancipist cause and one of many politically active lawyers in Australia who have had such a profound influence on its government and politics.1 The book was a call for neither democracy nor independence from Britain. Wentworth wanted to restrict membership of juries and the local legislature to those who held property. He later became a spokesman for the privileged squatters, even making a fool of himself by arguing for the creation of an Australian hereditary aristocracy. He sought the introduction of a peculiarly British notion of freedom, but in his version there would be no restrictions on those who had been transported as convicts. Like so many people after him, he saw no contradiction between loyalty to Britain and to the place of his birth, Australia. He hoped to create a ‘new Britannia in another world’.2 Wentworth joined a campaign that was already being conducted in New South Wales. A vast petition to London called for trial by jury in 1819. At that time, criminal trials were still heard before a panel of military officers, which was seen as a symbol of the colony’s subordinate legal status. Edward Eagar also proposed a bicameral legislature in 1819, complaining of arbitrary and illegal legislation by the governors, excessive taxation, 67

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oppression of individuals and suppression of free speech. These complaints were directed towards the reform of the autocratic system of government, under which law was made and controlled by one man, the governor. They reached a peak in 1820, when the first Supreme Court declared in the Eagar decisions that convicts and even many of those who had been pardoned were no longer entitled to civil rights. The emancipists were aware that they were moving away from freedom, not towards it.3 The constitutional reform cause was inextricably linked to the dispute between the emancipists and the exclusives. The exclusives argued that the institutions of freedom could not be granted to a penal colony. According to David Neal,4 they opposed the universalist spirit of the age, by attempting to establish a permanent division in society, under which transported convicts would be placed permanently in a lower position. In arguing against that view, the emancipists used the traditional language of the inherited rights of free Englishmen. They did not seek revolutionary change, but only what had been accepted in other British colonies. After the Eagar decisions the emancipists appointed Eagar himself and another prominent ex-convict, Dr Redfern, to take their case to London. Eagar spent the rest of his life there, arguing the emancipist case for constitutional reform, raising a vast illegitimate family, running businesses and falling deeper into debt. Local pressures for change were increased in 1824, when Wentworth and Robert Wardell began publication of the Australian newspaper. It took a reformist, emancipist line, while the Monitor was more radical. A similar campaign was conducted in Van Diemen’s Land, where it was fiercely opposed by the Lieutenant-Governor, Arthur.5 Imperial officials, in both England and Australia, also recognised that more orthodox legal institutions were necessary in New South Wales. The appointment of professional judges had shown up cracks in the original constitution, which had to be repaired. This became obvious in 1814, when Ellis Bent refused to redraft some of Governor Macquarie’s Port Regulations on the ground that they contradicted the law of England, an early version of judicial review of legislation. In effect, Bent complained that Macquarie was attempting to place himself above the parliament of Great Britain. He said that ‘the Governor considers me merely as a Subaltern Officer, a mere cypher [sic], a person sent out simply for his convenience and merely to execute his commands as one of his staff . . . I never did or could consider my appointment a military one.’6 This dispute raised the great constitutional issues of the day: the independence of the judiciary, the executive’s obligations to act within the law, and the requirement that colonial legislation should be consistent with that of England. The early constitutional structures did not help to resolve them. Although Bent was recalled over this and other conflicts, Macquarie was also told to be more careful to observe the law in future, except where 68

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the colony’s circumstances clearly required otherwise. Such were the ambiguities of the rule of law in the penal colonies. Imperial officials thought that it was necessary to clarify the power of the governors to issue orders and proclamations. Jeremy Bentham and Commissioner Bigge claimed that the governors had no power to make law at all as there was no legislature, but this seems to have been wrong by the legal standards of the day. They were entitled to make local rules, at least when they were consistent with the laws of England.7 Jeffery Bent may have been right to refuse to pay the toll on the road between Sydney and Parramatta, one of many small points to be raised to the level of high policy. Legislative power had to be placed on a firmer basis to remove these doubts. The professional judges also wanted a more formal court structure than the one inherited by Ellis Bent. Soon after he arrived, Bent suggested to London that the colony needed the sophisticated complexity of the English court system. He claimed that the simple structure of the original civil court had been made redundant by the colony’s growth in population and trade. He wanted new criminal and civil courts, with juries in each and a judiciary independent of the governors.8 He did not live to see most of his proposals become law. The second Charter of Justice in 1814 merely introduced a new civil court and left the criminal court untouched.

1 8 2 3 : T H E F I R S T G R E AT C H A N G E Most of Bent’s proposals finally became law in 1823, when the imperial parliament passed the New South Wales Act, the famous 4 Geo. IV c. 96. It was conservative legislation, which did not include trial by jury or an elected legislature. Its final shape owed more to the officially perceived need to clarify the legal position of New South Wales and Van Diemen’s Land, than to the emancipists’ arguments for representation. Consequently, the official autocracy of the governors of the penal colonies was only slowly diminished. The 1823 Act made three great changes to the colonial constitution: the separation of Van Diemen’s Land from New South Wales, and the creation of a Legislative Council and Supreme Court for each colony. It was partly drafted by Francis Forbes, the liberal first Chief Justice of New South Wales, but it also showed the influence of Bigge, who had worked so effectively against the liberty of serving convicts.9 The Act granted authority to the Crown to create Van Diemen’s Land as a separate colony, which happened in 1825. The new colony began on the same footing as New South Wales, but its constitution developed separately and more slowly. Britain continued sending convicts to the island long after transportation to the mainland was abolished, and as a result Van Diemen’s Land waited longer for an elected legislature. 69

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The Legislative Councils of the two colonies were not established as democratic or representative institutions. Their intended role was to legitimise the governors’ law making, which had been going on since 1788. Their members, of whom there were only five to seven, were nominated by the governor, and only he could initiate legislation. New laws usually required majority support in the council, but if the governor felt that a law was ‘essential to the Peace and Safety’ of the colony, he could make it with the support of only one member. He could even do so against the entire membership of the council in the event of rebellion or insurrection. Nor would policy be thrashed out in public, since the councils’ proceedings were kept secret for more than a decade after they began operation.10 Although the governors retained control over the Legislative Councils, these changes meant that they lost some of their theoretical autocracy. Under the new constitutions, they usually had to obtain the support of at least some of their officials when they wanted to make law. In particular, they now shared power with the newly created Chief Justice of each colony, who was made a member of the Executive and Legislative Councils. Before a new law could be considered by the Legislative Council, it had to be placed before the Chief Justice for his certificate that ‘such proposed Law is not repugnant to the Laws of England, but is consistent with such Laws, so far as the Circumstances of the said Colony will admit’.11 This was a new stage in judicial control over law making, different from the conventional form which applied in litigation. Under it, the issue behind the Port Regulation conflict was resolved in favour of the judiciary: the Chief Justice was to decide whether a local law was in conflict with the law of England. Because the test was so vague, this gave immense political power to the Chief Justices and guaranteed that any clashes between them and the governors would be elevated to constitutional conflicts. This repugnancy provision was an implicit statutory statement that the law of New South Wales and Van Diemen’s Land was that of England, as far as possible. It had usually been assumed that that was so, but not always, and not even this clause was conclusive. In the convict evidence case in 1831, Justice Dowling argued that New South Wales was a special place with special laws. The colony was established for penal purposes, he said, not as a settlement of free English subjects. In such a state of society, I apprehend, the general municipal laws of England could not have been administered, and that no laws could be applied to them but such as are equally applicable to all persons in the like degraded situation, whether confined within the walls of a gaol or allowed to move within certain prescribed bounds under restraints of penal discipline, namely, those that had the effect of protecting them against unlawful violence, or unnecessary coercion.12

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The 1823 Act did not change this position, Dowling said, and nor did the more explicit Act of 1828. Dowling’s view would have startled Ellis Bent, who had been so determined to bring the whole of the law to the penal colony. Chief Justice Forbes also rejected it in the convict evidence case, when he said, ‘Let an Englishman go where he will, and settle a new country, he carries with him all the laws which are applicable to his condition’.13 This was a conventional statement that Blackstone’s rule on settled colonies applied in Australia. His view came to be accepted by other judges and was given final approval in 1889, by the Privy Council in Cooper v. Stuart.14 It may seem to have been a conservative position, but Forbes showed in other cases that this was not necessarily so. Through the repugnancy clause, the new legislatures were ordered not to be innovative, not to change the inherited law of England. London had a further control over colonial legislation, which came to be important towards the end of the nineteenth century. The Crown (which is to say the Secretary of State for the colonies) could disallow colonial Acts. The new legislatures were anything but supreme parliaments. Any chance of locally developed legislation seemed to have been crushed. The third major reform of 1823 was the establishment of Supreme Courts for New South Wales and Van Diemen’s Land.15 New Charters of Justice of 1823 created the courts, the third for New South Wales and a first for Van Diemen’s Land. Because the New South Wales Act authorised the Crown to issue these charters, there could be no more doubts about the legitimacy of the courts. The old courts were abolished (except for the Court of Vice-Admiralty) and a single Supreme Court was created for each colony, with both criminal and civil jurisdiction and a full array of court officials bearing English titles. The Supreme Courts, which began operation in 1824, had all the powers of the common law courts in London, including the power to supervise lesser courts. They also had full jurisdiction over equity. From them, there was an appeal to a Court of Appeal (consisting of the governor) and from there to the Privy Council. Once again, then, there was an appeal from a professional judge to a legally amateur governor. Even this appellate amateurism had a precedent in Britain, since both the House of Lords and the Privy Council, the highest appeal courts there, included legal amateurs for much of the nineteenth century and even beyond in the case of the Privy Council.16 Although they were closely modelled on English superior courts, there was one important difference, as the previous chapter suggests: the colonial Supreme Courts were granted power over many areas of law, common law, equity, and ecclesiastical and admiralty matters. The risk, if it can be called that, of blurring these principles was greatest between common law and 71

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equity. Common law is said to be strictly rule-bound, regardless of the justice of the individual case, while equity is supposedly far more flexible and discretionary, more concerned about justice. Under the new Supreme Courts, the mix of powers meant that there was a danger that the common law might become flexible, or equity rule-bound. This became one of the primary points of conflict between conservative judges and those who wished to adapt the law to local circumstances. The Supreme Courts did not have jurisdiction over the full body of English law. The most important omission was the power to grant divorces, which was deliberately kept away from them until the English courts were authorised to do so. The Supreme Courts were given power over bankruptcy, however, under a temporary law created by the 1823 Act itself. This allowed full bankruptcy relief to all classes of debtors, unlike the law in England. The emancipist argument for trial by jury had little effect on the structure of the new courts. The irksome military influence continued in criminal matters, with a continuation of trial by seven military officers. In the new Supreme Courts they decided only matters of fact, however, not law. This military jury lasted for more than another decade in New South Wales and Van Diemen’s Land, although some cases were decided by civilian juries before then. Even though it had been supported by successive governors and an 1812 Select Committee of the House of Commons, civilian jury trial was rejected by Bigge and Earl Bathurst, the Secretary of State for the colonies. Bathurst said that it was unsuitable for convicts and the society in which they lived. The emancipists found it very difficult to overcome this attitude. While Britain continued to dump its unwanted convicts in Australia, it would not grant what the colonists thought was their birthright freedom.17 Francis Forbes took a more liberal view of grand juries, which decide whether a person is to be charged with a crime. The first of them was called in New South Wales in 1824 to consider whether a criminal charge should be laid in the Court of Quarter Sessions. Forbes saw this in great constitutional terms, as the application of a fundamental principle of English law, which had not been prohibited by the 1823 Act. He recognised that juries played a central discretionary role in law enforcement. Despite that, the grand jury system lapsed in New South Wales by 1830, leaving discretion over criminal prosecutions in the hands of the Attorney-General. Although this old English institution did not develop in Australia as it did in the United States, it operated for some time in the other colonies and is still on the books in Victoria.18 Instead of juries in civil matters, the Supreme Courts sat with two assessors, who were magistrates appointed by the governors. There could, however, be a civilian jury of twelve when both parties agreed. These jurors 72

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had to be substantial property owners, although there was no exclusion of emancipists. In effect, each side had a veto on the use of a jury, which meant that exclusives were not required to risk their fortunes to untrustworthy emancipists. This assessor system was abolished in 1834 in Van Diemen’s Land and 1844 in New South Wales, at last bringing full trial by jury to civil cases. The 1823 Act also authorised the creation of minor criminal and civil courts. These too, the Courts of General or Quarter Sessions, and the Courts of Requests,19 were modelled on English courts. The coming of a stricter form of legality meant, in structure at least, a closer adherence to English precedents. This did not mean, however, that there was a single body of law that would bind every court and transaction in Australia. There still was a wide diversity of courts and bodies of law in England in 1823, and their transplantation to Australia was the transfer of some of that diversity, not unity. The Courts of Requests, for example, operated very informally in England and were not bound to follow the common law. Nor did they necessarily operate in exactly the same way in every place, since their flexible criterion of justice meant they could have no written body of law. The new court structure was expressly based on that of England, but it was more modern. On a number of points the New South Wales Act foreshadowed changes that were not yet in place in England, and which would not be law there for decades in some cases. These important differences included the fact that the new colonial judges were paid by salary alone, not fees, unlike Ellis Bent and some of his successors and unlike the old corruption in English courts. Also, there was no attempt to duplicate the vast complexity of overlapping and parallel courts, which still infested England, and would do so until bureaucratic rationality began to replace tradition as the underlying principle for court administration in the second half of the nineteenth century. With the complexity and diversity of English law, at least there came a simple and comprehensible court structure in New South Wales and Van Diemen’s Land.

1828: CLOSER INTO THE ARMS OF E N G L I S H L AW The imperial parliament made even clearer in 1828 that this diverse body of rules and principles, called the law of England, was also the unalterable law of the Australian colonies. It replaced the temporary New South Wales Act 1823 by the Australian Courts Act 1828, which was also drafted by Forbes.20 The new Act repeated much of the 1823 Act, but it had a new repugnancy provision. Instead of the Chief Justice’s certificate, all Supreme Court judges had power to raise the issue. Any new Act had to be enrolled in the Supreme Court, and the judges then had fourteen days to submit a 73

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protest to the governor that it was repugnant to English law. If they did, the Act was suspended until the governor and Legislative Council reviewed it. This time, however, final power was given to the legislators, not the judiciary. The governor and council could stick to the legislation despite the judges’ objection, and if they did, the law remained valid until reviewed in London. This change did not alter the inferior status of the Legislative Council, which was still required not to pass ‘repugnant’ legislation, even though it might now get away with it for a time. Its laws were also still subject to disallowance by the Crown and supervision by imperial parliament. The 1828 Act dropped the appeal from Supreme Court decisions to the governors. Francis Forbes and the Attorney-General, Saxe Bannister, had lobbied for this change, and now litigation in the superior courts was fully professional. Clumsily, this left a vacuum, since appeals to the Privy Council were available only from the governors, not direct from the Supreme Courts. This was not repaired until 1850, although one appeal was heard in 1845 under an imperial Order in Council.21 Even after 1850, the obstacles of cost, time and distance still discouraged appeals to England. The most important provision in the Australian Courts Act 1828 was section 24, which stated explicitly for the first time that English statutory and judge-made law was operative in New South Wales and Van Diemen’s Land. It said that all laws and statutes in force within the Realm of England at the time of the passing of this Act, (not being inconsistent herewith, or with any Charter or Letters Patent or Order in Council which may be issued in pursuance hereof,) shall be applied in the administration of justice in the courts of New South Wales and Van Diemen’s Land respectively, so far as the same can be applied within the said colonies . . .

In cases of doubt as to the applicability of any English law, section 24 went on to say that the governors and Legislative Councils could declare whether it was deemed to apply in the colony, or to limit or modify it. In the meantime, Supreme Courts could, during the course of litigation, decide which English laws were applicable and which not. This settled a dispute about whether British Acts passed since 1788 formed part of the law of the Australian colonies. Forbes felt that they did, but Bannister argued that unless parliament provided otherwise, the date of reception of statute law was 1788. This would have led to the absurdity of the colonies’ statute law being frozen as it had been in England 40 years before. Forbes’ view was more practical; he said that the important date was that of the establishment of a colonial legislature, after which it could create its own law. On this basis, English statutes passed before 1824 would have been received. Parliament adopted a modified version of Forbes’ view and set the date 74

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of reception at 25 July 1828, the date of royal assent of the Australian Courts Act. This took advantage of important recent Acts, particularly those that lessened the brutality of the criminal law.22 There was conflict over the meaning of this as well. Dowling, by then Chief Justice of New South Wales, said in 1839 that it meant that ‘fundamental’ laws of England enacted after 1828 were adopted as part of colonial law quite automatically. Forbes had disagreed, and his view was eventually generally adopted: English Acts were accepted only if they were in force in 1828 and colonial conditions were suitable for them at that date. If conditions later became suitable to attract a pre-1828 Act, it was too late.23 Imperial Acts passed after 1828 were inapplicable unless they applied by paramount force—that is, they were expressed to apply to the colony in question. This gave Australian law a firm foundation point, a strong root in England. The 1828 Act did not, however, resolve all problems about the applicability and binding power of English unenacted and statute law in the eastern colonies. The courts would have many problems to resolve. Would the judge-made law of England (common law and equity) be accepted only as it was in 1828, or would changes after that date be adopted automatically? Did a particular English Act apply in the colonies? Did the local legislatures have power to change English statute or common law? These became the main legal controversies in the nineteenth century in all Australian colonies. They involved questions about the very nature of law in Australia, its relationship to its English parent, and who would make or break it. The 1828 Act also applied to Victoria, Queensland and the Australian Capital Territory when each of them was carved out of New South Wales, since they took its law with them at the date of separation. C O U RTS

A N D L E G I S L AT U R E S I N T H E W E S T

Western Australia and South Australia were founded separately from those in the east, and it was simply assumed that they took with them the laws of England at the time of settlement, in 1829 and 1836 respectively. The Australian Courts Act provision on reception did not apply in the western colonies.24 These colonies were established without the convict taint and did not have to struggle for the basic institutions of juries and representative legislatures; nor did the arrival of convicts in Western Australia in 1850 lead to the withdrawal of jury trial. Juries and representative legislature were quickly adopted there as normal institutions of free colonies. As shown in the previous chapter, the new legislatures quickly created their own courts rather than relying on imperial authorities to do so.25 South Australia’s first legislature, the Council of Government, was replaced by a two-thirds elected one in 1850. 75

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VO TES FO R VULG AR L OW-BRED F EL LO WS ELECTIONS

AND FREEDOM

The next major change in the eastern colonies was a partly elected legislature. This reform was finally made in 1842 in New South Wales, but not until 1851 in Van Diemen’s Land, which had to pay for the privilege of continuing to receive Britain’s convict exiles. There was a vigorous reform campaign in Hobart and Launceston, which linked the demand for wider legislative representation to the crusade against transportation.26 An elected legislature was not the same as democracy, even in the limited nineteenth-century sense of one vote per white adult male. It did mean, however, that convicts who had received a conditional pardon were granted a vote if they met the property qualification. Under the imperial Act, the Australian Constitutions Act 1842,27 the number of council members in New South Wales was enlarged to 36, of whom 24 were elected. There was a strict property franchise to limit participation to men who held freehold land worth £200 or more, or whose houses had an annual rental value of £20 or more. Under this system, colonial land owning had a political significance for the first time. Nor was an elected legislature the same as responsible government, which requires the government to have the support of the majority in the legislature. The executive was still appointed by the Crown, and although Council members could introduce general bills, their legislation could be disallowed by the governor or imperial officials in London. Only the governor could initiate laws on the colonial budget. The introduction of elections did not mean that the legislatures had a formal right to change the law of England. Their laws were still required to be consistent with English law.28 There was an escalation of pressures between local and imperial ideas about law, and increasing resentment at rule by London and its governors. The opposition members of the elected Legislative Councils spent much of their time in manoeuvres to squeeze power away from the governor. David Neal argues that the colonists of New South Wales used the ideology of the rule of law to force imperial authorities to grant it all of these institutions and conditions of a free society. The penal colony of 1788 had become a free society by 1842, he says, with trial by jury and a representative legislature in place, and with a professional judiciary imposing limits on the actions of previously autocratic governors. In making this argument, Neal opposes what he claims is John Hirst’s contrary view that New South Wales had the conditions of a free society from the beginning. Their debate turns on the criteria of a free society. If one stresses institutions, particularly from a British perspective, Neal is undoubtedly right. If, however, emphasis is placed on social history, on the lives of the 76

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colonists, there was no linear, albeit-contested, march to freedom in the Australian penal colonies. As chapter 2 of this book shows, convicts began with a remarkably high level of personal and legal autonomy in 1788. By the 1830s, which was the peak decade for the number of convicts transported, changes in local and imperial attitudes to penology and the coming of closer adherence to English law had largely eroded this early freedom. For convicts, the arrival of strict English law meant the eradication of freedom rather than the reverse. A free society, if that is what it was, no longer saw convicts as an accepted part of daily life, but demanded that they be dressed in distinctive clothing and separated from the rest of society. This affected tens of thousands; there were more than 27 000 convicts in New South Wales in 1836, compared with a free white population of 49 000. Strict adherence to English notions of the rule of law was an equivocal inheritance for this large percentage of the population, not an unambiguous signal of liberty.29 Some of these institutions came more easily to the colonies that were established later. Victoria separated from New South Wales in 1851, and acquired its own representative legislature along with a name that symbolised its superiority over its convict-ridden parent. As in the western colonies, the Victorian Supreme Court was created by a colonial Act, in 1852. The same applied in Queensland, which separated in 1859 and created its Supreme Court in 1861.30 THE

D E F E AT O F T H E G E N T L E M E N

The final major reforms were universal male suffrage, followed by the introduction of responsible government. The first elected Legislative Councils were still dominated by an elite, but this was reduced when the franchise was widened. Conservative political power was eroded even further by responsible government. This meant government by a broadly representative group of local people rather than by London’s dignitaries, the abolition of most of what was left of the old autocracy of the governors. Although they retained the right to veto legislation, the governors withdrew from daily policy making after this change. Imperial officials did not surrender power meekly. The reformist lawyer George Higinbotham pressed London to accept the full implications of the constitutional changes it had allowed, and it only slowly buckled.31 New South Wales received a broader electorate in 1850 and then responsible government in 1856, after a reform campaign which involved a subtle mixture of arguments.32 Sometimes the reformers spoke democratic rhetoric, says John Hirst, but at other times they claimed that what they were seeking had British precedents. The link with Britain had a powerful effect when so many people looked there for their basic values. Some of those who took this nostalgic line may have been sincere, but others used 77

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it as a mask for their real argument, which was for universal white male suffrage. This tactic disgusted some democrats, but it was effective, perhaps more so in the colony than in London, where at this time, ironically, uniformity across the empire was seen to be less important. The colonial reformers and their opponents tried to outshine one another in their claims to be British, and eventually the reformers were able to rely on statements by leading politicians in London, which appeared to favour a wider franchise. British arguments may have been distorted in the Australian debates, but they were not less important because of that. What counted, says Hirst, was the image that change was about to occur in London. Universal male suffrage seemed imminent in Britain, and so could not be opposed in New South Wales. In fact, the reform movement quickly waned in Britain after the changes were made to the Australian constitutions. There were no major reforms in Britain until 1867, household suffrage was not introduced until 1884, and there was no manhood suffrage until 1917, 60 years after New South Wales. Once again, the legal ideas for reform in the Australian colonies may have been recognisably British, but the reforms themselves were put into effect in the colonies decades earlier. Those who claimed they wanted to be British were not reproducing the Britain of a nostalgic past, but foreshadowing its future. The franchise in New South Wales was widened by something like a confidence trick. The 1842 financial requirement for the vote was halved by the British government in 1850, when it accepted an argument that the lower level would bring New South Wales into line with England. In fact, says Hirst, property prices were much higher in the colony, and so the franchise was much wider at the same monetary value. The apparent appeal to British standards was a mask for a broader level of representation. This difference was soon greatly increased by the inflation caused by the gold rushes of the early 1850s. After then, the occupant of a simple rented room in Sydney satisfied the franchise: 95 per cent of Sydney men now had the vote, a vastly greater percentage than in London. A lower percentage was enfranchised outside Sydney, but the principle of universal white manhood suffrage was easily gained once inflation took its effect. Land owning soon lost most of its political significance. Conservative squatters such as James Macarthur still said that they wanted government to be in the hands of ‘Australian born gentlemen’ rather than ‘vulgar low bred fellows’,33 but that could no longer be assured, especially once the secret ballot became law. This began in 1856 in Victoria, and the other colonies copied it by the end of the decade, except Western Australia which did not do so until 1877. Once universal white male suffrage was in force, conservatives were less concerned about the introduction of responsible government into New South Wales than about the perils of democracy. They tried to retain power 78

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in their own genteel hands by manipulating the drafting of the constitution that would create the new parliament. The imperial Australian Constitutions Act 1850 authorised the Legislative Council to draft it.34 Led by the old emancipist’s friend, W.C. Wentworth, it did so and sent the document to London for approval. Two points were politically contentious, the composition of the upper house and Wentworth’s attempt to draw electoral boundaries to favour the country over the city. Wentworth wanted to secure conservative interests against the mob. He argued for the creation of a local hereditary aristocracy, but this was laughed away as a bunyip aristocracy, something totally unsuited to egalitarian Australia. Instead, his draft constitution included a nominated Legislative Council to balance the elected lower house, the Legislative Assembly. Wentworth failed in his attempt to entrench these key provisions for elite power. He included a clause stating that once the constitution was in force, a two-thirds majority of each house would be needed to change these special provisions. Although drafted in New South Wales, the constitution was enacted as a schedule to an Act of imperial parliament applying by paramount force. This was because the draft exceeded the authority granted to the Legislative Council by the previous imperial Act. As a result, the colonial legislature would have been unable to change the constitution once it was in force, except in the way approved by the imperial Act itself. The British government blocked Wentworth’s attempted entrenchment of privilege, by stating in the imperial Act that any clause could be changed by a simple majority in each house of the New South Wales parliament. This meant that the new colonial parliament could repeal the two-thirds clauses, which it did soon after it commenced operation. After that, the constitution was easily changed. The British government accepted an appointed upper house for New South Wales, on the principle of letting the local legislature decide. At the same time it allowed elected ones elsewhere.35 Only New South Wales and Queensland had appointed upper houses, which ensured that there would be future conflicts between conservative and more radical houses of parliament. The imperial Act that resulted from this lobbying created the two houses of the parliament of New South Wales. Under this new constitution, the government and its chief minister were responsible to the lower house, the elected Legislative Assembly; through it they were responsible, in theory, to the white men who had elected the members of parliament. A result of this change was that most appointments, such as those to the courts, fell into colonial hands. There was one great exception to this. The governors remained imperial men, appointed by Queen Victoria on the advice of the British government and responsible to London, not the people of the 79

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colonies. They retained power to veto local legislation, although they rarely exercised it. There was still power in Government House. This surge of independence was felt in Tasmania, Victoria and South Australia as well, where responsible government was also granted at this time; their new parliaments opened in 1856 in Tasmania and Victoria, and in 1857 in South Australia. Responsible government in Queensland came on its separation from New South Wales in 1859, but it was delayed until 1890 in Western Australia.36 None of these colonial constitutions was obtained as of right by the local people. They were either Acts of imperial parliament or local Acts whose validity depended on the approval of the British legislature. In effect, they were favours, which had to be requested or demanded, or simply given by London. There was no grand declaration, as in the United States that ‘we the people of New South Wales’ or any other colony created our own sovereignty. Sovereignty was a gift from above. LOCAL

L AW M A K I N G A N D C O N S T I T U T I O N A L CHANGE

Once created, the new colonial parliaments should have been able to change the inherited laws of England. Their legislation was still subject to imperial veto, and the British government insisted that some matters were in its own exclusive power, such as divorce and foreign policy. Despite that however, most powers had been transferred into local hands, and it would take a judicial extremist to decide otherwise. Responsible government should have been the end of the old repugnancy doctrine. Although the rhetoric that led to the Australian colonial constitutions was consciously British, as was the source of their power, this did not mean that the institutions or the laws they passed would necessarily be a pale reflection of England. The most important difference was that the colonial parliaments were much more democratic than the British one. Deference to England as the source of aesthetics and many legal ideas would last another century, but a popularly elected parliament would not always pass the same laws as those in England. John Hirst decries the foul behaviour and radical anti-property actions of the new parliament in New South Wales. Democracy was a failure, he claims; its tone was repulsive and some of its laws were corrupt expressions of class greed. The low-bred, vulgar new members of parliament abused their gift by drunken invitations to fight one another outside parliament.37 But were their laws worthless, the unprincipled result of a corrupt system? The Acts of the new parliaments are examined later (in chapter 7). After 1823 there were two stages in the imperial control over nineteenthcentury Australian law. In the first, the local legislatures were prohibited from passing laws that conflicted with the general body of the received 80

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law of England. Imperial parliament gave the colonial judges immense political power when it left the repugnancy question to them. At first, they were able to strike down legislation even before it came into force, which they supplemented by a more conventional form of judicial review in the courts. The chance of conflict between the judges and the legislatures increased when the franchise broadened and the judges became more conventionally English. They were moving in opposite directions on the main question of colonial law, its adherence to the values of its parent. The second stage of imperial control commenced some time after responsible government, when the colonial parliaments became free to reject most of their English legal inheritance. At that time, refusal of the royal assent became the most important restraint on local legislation. Chapter 5 discusses the judges’ attitudes to English law and local legislation. Chapter 6 looks at innovative legislation in the period before responsible government, and chapter 7 at the Acts passed after then.

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T HE POWER OF THE JUDGES Judicial review and the attachment to England THE POWER OF THE JUDGES

James Stephen, for so long London’s adviser on colonial law, thought the prohibition on colonial Acts that were repugnant to English law was no real barrier to colonial law making: Whatever is tyrannical or very foolish you may safely call ‘repugnant’ &c. But whatever is necessary for the comfort and good government of the colony you may very safely assume to be in perfect harmony with English law . . . Take a new code, wherever the old one won’t suit you. Keep up the family resemblance between your law and ours as well as you can, and never think it worthwhile to go mad over a difficulty which an act of his Excellency in Council can grind into powder with a blow.1

This liberal view at the heart of the empire was frequently ignored. The men who wore their wigs in the Australian heat frequently looked to England for more than their authority and clothing. They saw its laws as a strict code, to be followed without question. The conflict between these two positions gave colour to mid-nineteenth-century law, but it did more than that. It was a fundamental dispute about the ability of new societies to create their own laws, their own moral and political structures.

FREEDOM OF THE PRESS The 1823 constitutional reforms placed Francis Forbes, the first Chief Justice of New South Wales, at the centre of the bitter dispute between the emancipists and exclusives. After the liberal regimes of Governors Macquarie and Brisbane, General Darling went to New South Wales in 1825 like a latter-day Bigge, determined to make it a place of punishment and deterrence. In his view, penal colonies could not be trusted with the full British institutions of freedom, fully elected legislatures, juries and a 82

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free press. To a Tory general, what was needed was discipline, not liberal ideas of legal rights for convicts and emancipists. It was inevitable that the new governor’s relationship with the Chief Justice would be tense; Forbes was a moderate liberal who believed in liberty even in places such as Sydney. He refused to wear a wig, seeing them as unsuitable in the colonies. Even a colleague thought his bare bald head gave him a ‘round head republican look’; suspicions were also aroused by his connections with America when he was young. When he was Chief Justice in Newfoundland, his governor had accused him of having opinions ‘of the freest tendency’. Forbes’ liberalism included an occasional willingness to follow Newfoundland commercial customs even over the strict laws of England.2 This did not mean however, that Forbes acted outside what he saw as the broad legal traditions of England. In 1827, he said ‘I consider that since the passing of the New South Wales Act . . . that the laws of England are essentially the laws of New South Wales, that the government is essentially an English government, and that the courts are essentially the Courts at Westminster’.3 To Francis Forbes, the essence of the law was British freedom. Darling and Forbes came to represent the great division in New South Wales. Much as they wished to retain their independence, they came to be cheered from the sidelines by opposing camps: the exclusives and the emancipists. As chapter 4 shows, the 1823 New South Wales Act ensured that any difference between the two most senior officials in the colony would become a constitutional clash. In the colony’s transitional state of government, Forbes, as Chief Justice, was a member of the Legislative and Executive Councils. His position was explicitly political, but with the skills of a lawyer. Only the governor could introduce bills into the Legislative Council, but the Act required Forbes to certify that the bills were not repugnant to the laws of England. No judge in England was required to state that a new Act was consistent with the rest of the law. English constitutional law held that parliament was supreme. The New South Wales Act provision was a consequence of imperialism, a result of the centrality of power in London and the belief that England was the true source of law. Under the Act, the Chief Justice first had to work out what the law of England was. This was difficult enough, since unreformed English law was an overlapping mess of inconsistencies and vague generalities, a collection of ad hoc decision making which could barely be called a system. The essence of the common law was a method of reasoning rather than a tight body of rules. Statute law, however, was often more precise, and many of the new Supreme Courts’ cases referred to this. Forbes then had to decide whether the particular English law was applicable in the colony at the date of acceptance. This required two steps: deciding whether the English Act was generally worded 83

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rather than local to England, and then whether the conditions of the colony at the date of acceptance were suitable for the Act in question to apply.4 If those tests were satisfied, he then had to decide whether the new colonial bill was ‘repugnant’ or ‘consistent’ with that law, so far as the colony’s circumstances allowed. The vague reference to ‘circumstances’ was the main source of the Chief Justice’s political power, which was much greater than that of any judicial figure in England. In effect, the New South Wales Act gave Forbes a power of veto over the legislative program of the governors. Did the circumstance that New South Wales was a penal colony allow the suspension of the ordinary liberties of the British people? That question, dressed up as one of law, was the central political issue in the 1820s and 1830s. Forbes had not wanted to be put in this position. When working on the draft of the New South Wales Act in London, he had wanted a milder provision. He said then that when the issue of repugnancy of a local law was put before him, he would act in the spirit rather than the letter of English law, with a leaning towards the local law: ‘new relations of men require new adaptations of law’.5 He had wanted a quiet discussion between the Chief Justice and the governor about the lawfulness of new colonial legislation, which would minimise clashes between them. Instead of the power to suspend repugnant legislation, Forbes was able to kill it. He foresaw the conflicts that occurred as a result of the final provision. Governor Darling became the centre of a powerful constitutional campaign by two new opposition newspapers, Wentworth and Wardell’s Australian and Edward Hall’s Monitor. Beneath their criticisms of his regime was an argument for representative institutions for New South Wales. Darling’s actions were scrutinised closely, with charges of tyranny being regularly flung at him, such as in the Sudds case which is examined in chapter 2. The newspaper campaign against Darling lasted for years. One tactic used by Darling was to prosecute the newspaper editors for seditious libel. Defamation was both a crime and a civil wrong, and the cold, stiff military governor could not tolerate criticism. When he arrived, the press in convict New South Wales was less restricted than in England. In 1819, in fear of the spread of continental rebellion, the British parliament had passed the notorious Six Acts to muzzle the press. Brisbane, Darling’s liberal predecessor, had not had any difficulty with the press in New South Wales and allowed it to grow without restriction. Darling’s first campaign of prosecutions failed, despite the fact that he had nominated the members of the military juries that heard the cases. Darling began to suspect that Francis Forbes was in league with the barristers who owned the Australian. His criticism and suspicions of Forbes were expressed in extreme allegations in reports to London; he accused Forbes of collusion with the government’s opponents and of being ‘greedy 84

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of power, almost beyond example’.6 These were extraordinary charges, among the worst that could be made against a judge. Forbes replied in a more restrained way, stressing his impartiality. Paranoid, defensive and intolerant of criticism, Darling had the instincts of an autocrat. Like Bligh, he became enmeshed in the bitter squabbles of the colony and a victim of his own nature; he, too, was impatient with what he called ‘legal niceties’.7 The two governors were confronted by equally determined opponents, but the law and judges had changed since Bligh’s time. Instead of Jeffery Bent, who might have supported him, or Richard Atkins, who had little public respect, Darling had to deal with Francis Forbes. Forbes and his colleagues were lawyers who were unafraid to use the law and their judicial independence to restrain the excesses of the governor. To Darling, a penal colony could not have a critical press. He had an aristocratic vision of the press, under which a ruler was superior, not an agent of the people. To Forbes, by contrast, a free press was a right guaranteed by the British constitution. Elsewhere, Forbes argued that New South Wales no longer had a gaol government under a despotic governor.8 The theory of governor as autocrat was dying. Darling also tried to restrain the newspapers by legislation, as Bathurst, the Secretary of State for the Colonies, had recommended. This led to the main clash with Forbes. Darling copied two bills from Van Diemen’s Land, which he hoped would stifle the press criticism. The first took some of the features of the repressive English law, with an additional licensing requirement; those who wished to publish newspapers would have to hold a licence, which would be granted at the discretion of the governor. The second bill was supposedly about stamp duty, to fund the government’s own printing program, but its real aim was to drive the opposition newspapers out of business. These draft bills were placed before Forbes for his certificate of compliance with English law. The conservative and sycophantic Pedder,9 the first Chief Justice of Van Diemen’s Land, had decided that the bills in that colony were not repugnant to English law. Forbes was not required to agree. His decision was necessarily political, because he had to decide what the nature of the colony required, whether a free press was possible in a convict society. It was not a simple matter of finding and applying the appropriate rule in a neutral fashion. Forbes acted consistently with his own principles in holding against the unfettered autocracy of the governor. The licensing provisions, he said, were repugnant to the rights of British people: By the laws of England . . . every free man has the right of using the common trade of printing and publishing newspapers; by the proposed bill this right is confined to such persons only as the Governor may deem proper. By the laws of England, the liberty of the press is regarded as a constitutional privilege.10

That was as much a statement of political aspiration as law, given the 85

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repressive nature of English press laws. Like the emancipists’ reform rhetoric, Forbes felt that liberty and being British were synonymous. He had made the same kind of grand statement of principle about the constitutional role of juries in 1824; once again, Pedder disagreed.11 Forbes approved the stamp duty bill in principle, but the bill he saw had a blank space where the sum would be written. After it passed the Legislative Council with a fixed rate, it was returned to him for his certificate, and the evidence is unclear as to whether he assented to it orally. If so, he had second thoughts when he realised that it had been passed with an ulterior purpose. He declared that it was invalid, and so Darling suspended its operation. London supported Forbes; the stamp duty Act was disallowed and the first Act accepted without the licensing provisions. Both of the Van Diemen’s Land Acts were disallowed. The rule of law in this case meant freedom, not repression and the enforcement of authority. In this decision, the New South Wales judiciary also strongly asserted its independence from the government. The failure of his legislation meant that Darling had to continue prosecuting the editors, which he did with some success. This did not silence Edward Hall, the editor of the Monitor, who persevered, writing his articles from prison. By this time, however, the atmosphere in London was changing, and its newspapers were beginning to obtain some of the freedom the Monitor and Australian used so powerfully. In another Act, Darling had copied an English provision which allowed banishment of recalcitrant editors, but this was repealed in England, and the New South Wales copy was disallowed. A repressive approach was now out of favour. Darling left Sydney in 1831 and was replaced by another military man, the liberal Richard Bourke, a Whig who had spent time in the home of Edmund Bourke, a distant relative.

JUDICIAL REVIEW AND THE A C C U M U L AT E D W I S D O M O F A N C E S T O R S The requirement of the Chief Justice’s certificate was dropped when the Australian Courts Act was passed in 1828. Instead, as chapter 4 shows, until the provision was abolished in 1842, the responsibility came to be shared between the judges of the Supreme Courts, any of whom had a fortnight to declare that a new law was repugnant to the law of England. Alternatively, during the course of a trial they could decide that a colonial Act was invalid, just as they could have done while the 1823 Act was in force. In the great case of Marbury v. Madison in 1803, the United States Supreme Court had declared that it had power to strike down legislation that conflicted with the constitution. This developed into a requirement that legislation had to meet basic standards of liberty.12 The origin of judicial review in Australia was much less lofty. Imperial parliament created inferior 86

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legislatures in the colonies, and it was the role of the judiciary to enforce that inferiority. Occasionally, the judges used this to a higher purpose, when they treated the common law as a source of basic liberties against which colonial statutes could be judged. Usually, however, the process was based more simply on a comparison between one law and another. In all cases, ironically, the process of ensuring that English law ruled the colonies resulted in the very non-English notion that judges could decide on the validity of legislation. It was difficult to deny that English law was in force, especially after the declaration in section 24 of the 1828 Act that it was in operation ‘so far as the same can be applied’ in the colonies. The effect of that on local legal experiments was very much in issue, however. These judicial review decisions were not always explicitly political like the press freedom dispute, but a more subtle politics was often at work. These cases frequently raised questions about the nature of the colony’s society and economy, and almost always raised the broader issue of the sharing of power within the empire. These questions were at the heart of an important usury case in 1833. Interest rates in Sydney had always been higher than in England, and in Macdonald v. Levy the plaintiff sought to enforce a promissory note at a rate of 8 per cent, which was commonly used in New South Wales.13 The defence was that the ancient English laws of usury were in force, under which it was unlawful to lend money above 5 per cent. The Supreme Court held that the local rule was valid, but the court was divided two votes to one. This was more than a disagreement on a particular rate. It was a fundamental split on the way judges make decisions and the degree of permissible legal variation within the empire. The minority judge was William Burton, who was a stickler for the strict application of English law even when it led to hardship. His test of whether an English Act was applicable was whether it ‘can’ be applied. He based this on a strict reading of the words of the 1828 Act. If it was possible to apply it and there was no legal bar to doing so, then his view was that English law must be applied. Since there was no obstacle, he held that the usury laws of England operated in New South Wales. As a result, the previous practice of allowing higher interest rates in the colony was unlawful. This practice was not a custom, a recognised way of making law, said Burton, because it had not been in force as long as the ‘memory of man runneth’.14 The colony was established within legal memory, which meant there never could be a valid colonial custom. Only English habits could be elevated into law, a conclusion that suited Burton’s jaundiced view of the colony. As a result, colonial law could only be made by the legislature, and only if it were not repugnant. Burton held that a section of the Savings Bank Act of the Legislative Council, which required the bank to charge at least 8 per cent, was void. 87

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This very stern version of legal imperialism was consistent with the politics and law of the rest of Burton’s judgment. He drew a strict line between law and equity, noting that by 1833 the Supreme Court had sharply distinguished the two. The action, Burton said, was brought at common law, where strict rules applied. There was no room at common law for the judges to be compassionate or reasonable, even if they were aware that their decision might cause grave injustice. The law had to be applied; and if it was harsh, then that was a matter for the legislature to repair: I have no power to bend the law; transactions in society must be adapted to the law; it is not in Judges, but in Legislatures to adapt the law to the state of society; the law is a main pillar of the Constitution, not to be removed, or bent, or deformed, according to the particular views of judges, but only with the authority of Parliament. With me, therefore, arguments of expediency have no avail . . . I have always thought that there has been too great a proneness in Courts to resort to the use of expedients to prevent the execution of what they may consider a hard law, which has grown up to be an evil.15

Indeed, it was the duty of judges to make harsh decisions, because that would encourage the legislature to change the law. He was not opposed to change—he later drafted a bankruptcy law, which merged insolvency and bankruptcy well before the same reform in England—but it was the role of the legislature, not judges in court, to do so. Nor did Burton take a laissez faire approach to contract making. In his judgment he referred to the excessive rates of interest being charged in the colony. This was a personal concern; he came to Sydney in the hope of making his fortune but found that interest rates were exorbitantly high. In this case, he had the great satisfaction of striking a blow at the usurers while strictly upholding the glories of English law. As he said in his judgment, section 24 of the 1828 Act was ‘the great charter of the Colony . . . at once yielding to the colonists all that by the common law, or by the liberal, and enlightened, and accumulated wisdom of our ancestors, has been provided for the protection of life, liberty and property . . .’16 He wrote to friends that this judgment was his ‘one grand stand against . . . usurious practices’, in which he was in a ‘glorious minority of one’. His aim in the judgment was not to change the opinions of his colleagues, which he knew he would not do. Instead he hoped through his ‘exposure of the corrupt system which exists, that the attention of the Government here and at home will be called to the subject and a legal limitation put to the cupidity of the half reformed rogues of Botany Bay’. Burton hated Sydney and its corruption, in which even those who were opulent and influential were ‘without Virtue, considering money as the criterion of excellence’. He also had little respect for the legal actions of his colleagues. He told his friends that 88

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I found on my arrival, such a Court, such a looseness of regulation & practices—such advocates such attornies [sic] and such clients as the name of the place would lead me to expect: —But the most distressing part of this subject was the disregard to legal principles & hence to uncertainty & reproach which existed as to the administration of the laws. The capricious adoption of some English statutes & the libertine abandonment of others—so that although by the express words of the Statute of Geo 4 c 38 [sic]—‘all the laws & statutes then in force in England were directed to be applied, in all cases where they can be applied’ yet so loosely has this law been applied that Usury and Extortion are become the Rogue’s honesty.17

He went on to describe looseness, irregularity and drunkenness among the practitioners, sounding like Ellis Bent’s criticisms of Richard Atkins’ court. ‘I can only describe them as Botany Bay lawyers.’ Henry Melville had a similar view in 1851: it was impossible, he said, to be struck off the role of legal practitioners in Australia ‘for justly has it been remarked, that no lawyer can, in those colonies, be considered out of the pale of society, until he is hanged’.18 Burton’s colleagues were not Richard Atkins, however, and nor were the court’s practitioners transported convicts. Like Atkins, Burton’s fellow judges were willing to adapt English law to the circumstances of the colony, but unlike him they knew the law. These were sophisticated, highly regarded lawyers who argued their case for local law with clarity and thought they were acting within the spirit of English law. Forbes stated in the usury case, as he often did, that section 24 merely repeated the old common law position described by Blackstone: settled colonies took English laws that were applicable to their circumstances. Section 24 merely set the date at which adoption applied, he said, after which new imperial Acts were not automatically adopted unless they stated that they were applicable to the colony concerned or to the colonies generally. Forbes’ test of applicability was not Burton’s mechanical one of whether a law ‘can’ be applied. Nor was it merely whether there was sufficient machinery to enforce a law. Instead, said Forbes, the ‘first and leading principle should be, whether such laws are applicable in their nature and object, to the state and condition of the colonists’.19 This test was consistent with Forbes’ liberalism. To him, laws were necessary evils, and there was no greater evil than to be governed by unsuitable laws. The usury laws of England were merely local to that country, he concluded, and were not applicable to the colonies. Forbes’ position was a liberal one for individuals as well as the colonies. Its general tendency was to allow people to make contracts that suited themselves. This did not mean, however, that there was no limit on them doing so. There was a local usage in New South Wales, which allowed higher interest rates than in England, but within the broad supervision of the courts. This was not laissez faire contract law, the law of unrestrained 89

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capitalism, which came later. There had always been a general agreement among the courts, government and population of New South Wales that the English usury laws did not apply, but the local courts had always awarded interest at a reasonable rate, which accorded with the practice of the colony. This was not a strict custom that had the full force of law, said Forbes, but an accepted usage, which was not repugnant to the general laws of the ‘parent country’. It was consistent with the rules of equity and the interests of the colony, he claimed, and was adopted as an implied portion of all contracts. All the colonies were free to make their own laws on this issue, and there was considerable variation across the empire. This was done in New South Wales by the courts accepting the local practice. Forbes was not always so ready to accept local customs. In 1825 he held that ‘loose’ local practices concerning land title could not contradict the law. The usury decision may have reinforced popular practice, as the first civil court had done so often, but Forbes would not do the same for land law. He also rejected the local practice of allowing convicts to give evidence; the law against this was so fundamental that it required change by the legislatures, not the judges.20 Ordinary people had less opportunity to make law under the Supreme Court, even under a judge as liberal as Francis Forbes, than in the old amateur courts. If they were to do so in future, it would more often be through placing pressure on the legislature. Adherence to the law of England weakened the link between popular behaviour and formal law.21 In his judgment in the usury case, Justice Dowling agreed with Forbes, noting that the Supreme Court had never allowed more than 8 per cent. The full English usury law was not in force, said Dowling, but its spirit was in operation in the equitable jurisdiction. This was the looseness that made Burton so angry: Dowling was mixing common law and equity and using such vague phrases as the ‘spirit’ of the law. Despite the differences between Forbes and Dowling (which were discussed in chapter 4), they were both concerned in the usury case with the impact of the law on the community, with hardship and injustice and with the universal assent of the government and community as to whether a law was applicable. Worse, from Burton’s perspective, it was Dowling who was appointed as Chief Justice after Forbes left the colony. Burton coveted the position but was denied it. The usury case is a clear example of the deep division among judges about the nature of law and law making. Dowling and Forbes represented a view based on community needs and expectations, within a broad framework of justice. The law was to be applied in a flexible way, with an eye on its effect. Even within the spirit of English law, they decided, there was great scope for variation among the colonies. The repugnancy doctrine was merely to ensure that the fundamental principles of English law were 90

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honoured, not its detail. Although they shared with Burton the belief that England’s laws were the source of liberty, and agreed with him that this did not mean people could make whatever contracts they wished, they disagreed on the scope of repugnancy. Burton had a much narrower vision of English law, under which he applied it strictly regardless of its suitability. His method would later be called ‘legalism’. Those who follow the strict letter of the law and say it cannot be changed by judges tend to bind it to the values of the past. Their apparently neutral technique masks conservatism. The disguise in Burton’s case was not very well made, however, given his candour in his judgment and his private letters. To him, New South Wales was a place of rotten corruption from which no good could come, and none of its practices could be elevated into law. The only good law came either from England or from local legislation consistent with that pure fountain of legal right. His legalism was based on a deeply held belief in the virtue of English law and the rotten nature of local practices. The method of legal reasoning changed during the nineteenth century. The paternalism that Richard Atkins had so clearly exhibited gave way to a new version of legitimacy. After the 1832 Reform Bill in England, a new democratic legitimacy was created; laws were to be followed because a representative legislature had passed them. This was even more important in the Australian colonies, where the notion of representation went so much further. The legitimacy of judge-made law also changed. Whereas it had previously been justified as a craft or an art, by 1855 it came to be seen as a science in Australia.22 It was assumed, by analogy with scientific empiricism, that there was a vast body of law which only needed to be discovered by the judges. The courts did not make law, which was the job of parliament. Instead they merely discovered it, like Charles Darwin on the Beagle. This was reinforced by the doctrine of precedent, under which the courts operated in a strict hierarchy. This formalist notion of law became the dominant method of legal reasoning later in the nineteenth century and reached its peak in the middle of the twentieth, as chapter 8 shows. The strict attachment to previous decisions entrenched the peculiarly English values of the law and was a powerful weapon against local innovations throughout the British empire.23 This is its particular effect in colonial societies, but it was not a total victory. For at least 150 years in Australia there has been a struggle in our courts between the Burtons and the Forbes, between strictness and flexibility, deference to England and local law making. Burton expressed a view that would become victorious, but never completely so. Over this long period the legislatures frequently made laws without English precedents, while the judges moved closer to 91

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strict legal imperialism. The courts looked to England while the legislatures often looked at local circumstances. There were many other cases of this kind in the nineteenth century, where the courts had to decide on the application of English law to local needs. In the convict evidence case discussed in chapter 2, the Supreme Court held two to one that the English rule on the point was not in force in New South Wales. This was not the last word on this issue, as the arrival of Burton to replace one of the majority judges tipped the balance of the court. In another case it found that the English law of bankruptcy and insolvency was inapplicable. Forbes also noted that marriage legislation, land title law, poor laws and excise laws had never been considered part of colonial law. In a split decision the court also decided that the English Marriage Act did not apply in New South Wales, Forbes and Dowling once again outnumbering Burton. In Van Diemen’s Land it was decided that a British statute requiring the publisher’s name to be added to publications was not received, and in South Australia that an English Act governing stamp duties on newspapers was not part of its law. The problem continued to arise in the twentieth century; for example, the High Court decided in 1907 that English vagrancy laws had not been received. These became the most important cases in colonial law, with the same kinds of tensions as in the usury case.24 English judge-made law was adopted with less controversy. Unlike British legislation, there was little concern about the date of creation of unenacted law. Nor were the judges concerned that conditions in 1828 may not have suited it. When the conditions later became suitable, judge-made law was simply adopted to match them. This was in sharp contrast to the acceptance of statutory law, which was done only if the conditions were suitable at the acceptance date. Part of the explanation for this is that on one theory, the common law is timeless, the judges merely discovering the law as it has always existed. More importantly, the judges were self-consciously English on these issues, choosing to keep colonial judge-made law in tandem with that of England, and so adopting it as it was created or became appropriate. The English preferences of the judges meant that it was rare for the common law to be adapted to local conditions. One exception was a Victorian Supreme Court decision that because local trees differed from those in England, ‘timber’ had a different meaning as well. In another, Jeffcott held that a tent was a ‘dwelling house’ in the primitive conditions of early Adelaide, unlike England; as a result, it was burglary to break into one under the British statute in force in South Australia.25 These were minor alterations to English judge-made law. The judges’ background partly explains their preference towards English common law. More than half of the judges in Australia in the second half 92

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of the nineteenth century were educated in England or Ireland. It was not until the 1870s that locally trained barristers began to be appointed to the Supreme Courts, but they tended to adhere just as closely to English traditions anyway.26 Legal education is a powerful force, which is difficult to overcome. Another reason is that final appeals were taken to the Privy Council in London, which, until well into the second half of the twentieth century, rarely recognised the possibility that colonial law could be different from that of England; in 1879 it declared that it was ‘of the utmost importance that in all parts of the Empire where English law prevails, the interpretation of that law by the Courts should be as nearly as possible the same’.27 The dominant belief by the second half of the nineteenth century was that there was one, universal, timeless common law, and that colonial conditions would rarely justify its non-acceptance. One result of this was that the colonial judges tended to look only to English legal decisions, not to those of their colleagues in other colonies. This was reinforced, no doubt, by the poor state of legal reporting in Australia. In many cases, only newspaper reports were available, although law reports came early in Melbourne.28 By the middle of the nineteenth century, the period of judge-made differences between English and Australian law was over, with few exceptions. The most important exception concerned the interpretation of colonial statutes, where colonial judges showed some resistance to Privy Council decisions. Here, at least, they had not forgotten a local approach to law making, particularly in Victoria. Nevertheless, there was variation even here; for example, Chief Justice Higinbotham asserted that responsible government implied broad power for the colonial parliament, while Justice Stawell stood for judicial supervision over the parliament and government. On the whole, the members of the Australian Supreme Courts recognised that they were bound to follow the decisions of the Privy Council even if they sometimes said that they were not required to follow the decisions of English domestic courts. This did not mean much for the development of an Australian approach to law, because the Privy Council itself said that there was only one consistent common law. Despite their occasional resistance to English law, the internal and external legal colonialism of the judges increased over time, rather than decreasing in line with the growth of legislative independence. There was still a tension between conservative and innovative approaches, but many of the professional judges after the creation of the Supreme Courts were English to the core.29 The cases on repugnancy and the acceptance of English law were often finely balanced, based on vague criteria. In effect the judges had a broad discretion and they brought their own interests and values into their 93

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decisions. This meant that there could be little certainty about the question, which was a particular problem for Chief Justice Pedder of Van Diemen’s Land. Less than a year after this young, inexperienced man took office, he discovered to his horror that he had wrongly condemned two men to death on an assumption that a British Act applied in the colonies.30 This uncertainty also frustrated the governors and legislators, particularly when the judges wavered in the repugnancy cases. In one case, Pedder affirmed the validity of the Dog Act at the time it was presented to him for his certificate of compliance, but he and Justice Montagu later struck it down as invalid when it reached them in court. At first Pedder thought that it was a licensing Act, but later he decided it was a tax Act, which had not followed the form required by imperial law. Montagu was amoved, dismissed, from the court within weeks, officially for financial reasons. He was an able but petulant man, who had offended the colonial government. Governor Denison also tried to amove Pedder because of his action over the Dog Act, but in the Executive Council Pedder successfully defended his judicial independence. Judicial autonomy was a flimsy notion when judges held office at the pleasure of the Crown and the Executive Council.31 These decisions show that even the combined effect of the establishment of a fully professional Supreme Court, a firm statement that the law of the colonies was that of England, and the rule on repugnancy, did not automatically mean a death sentence for local notions of law making. Burton’s position was simply impossible to achieve. There can never be as simple a transplantation of a legal system as he sought. Australia could never be England, with its misty fields, closely settled villages and complex class structure. The land, the air, and the mix of native born and immigrant people were all different from England, and the colonies’ law had to be different too. This does not deny that English law was important in the colonies: the daily operation of the courts in debt recovery and criminal law, their bread and butter, was recognisably English. England was ‘home’, and the reproduction of its laws was as much part of the nostalgic transplantation as oak trees and roses, and names such as Richmond and Canterbury. While the language of the common law was spoken in Australia, however, it was in a distinctly different accent. There was always tension between the imported legal tradition and local needs. The tradition came to be almost smotheringly dominant in the courts, but even there it never snuffed out the local.

WRITS AND WIGS The courts’ increasing deference to England was shown in their procedure and dress. Although Forbes created simple rules of procedure in place of the ancient complexity that still dominated the English courts, his rules did not last long after his retirement. His successors increasingly followed 94

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English procedures, as did the courts in other colonies such as South Australia. The result was slow, cumbersome, expensive litigation, especially in equity. Henry Melville, who was imprisoned for contempt of court, claimed that the list of those ruined by law in Van Diemen’s Land was very much like ‘a list of killed and wounded, after a very serious battle’.32 The absurd complexity of the law, a triumph of tradition over rationality, benefited no one but the lawyers and those who felt that the closer they came to England, the nearer they were to perfection. When simplification did come, it was usually through copying procedural changes in England.33 Court dress was similar: Forbes and even the Anglophile Cooper, the dominant judge in early South Australia, chose not to wear traditional English dress, but later judges adopted the silliness of eighteenth-century clothing and wigs in the heat of Sydney and Adelaide. The same occurred in Hobart.34 The creation of single Supreme Courts in each colony allowed a new start to be made, but the judges soon reverted to the English conservatism that has marked the Australian legal profession so deeply. Like the division between law and equity, English forms were followed regardless of function. This was also evident in the legal profession itself, which reproduced English class divisions, despite the egalitarian nature of Australia. The 1823 Third Charter of Justice, which established the permanent Supreme Court in New South Wales, referred to the admission of barristers and attorneys or solicitors. Wentworth and Wardell, English-trained barristers who were admitted in 1824 as both barristers and solicitors, promptly argued that barristers could practise in both professions while solicitors ought to be confined to their own. Forbes rejected this self-serving argument but expressed the hope that the profession would soon be divided; he said that ‘an attorney is no more a barrister, than he is a physician’.35 Division was finally approved by the Supreme Court in 1829, but the issue was referred to London and not given approval until 1834. The colonial judges hoped that the gentlemen of the higher profession would bring decorum in advocacy. The implications of this were strongly rejected by the solicitors, who thought they were being treated ‘as animals of an inferior grade’.36 A proposal to re-amalgamate the professions in 1846 was referred to a Select Committee under Wentworth. Not surprisingly, it reported against the idea, but it did establish the Barristers’ Admission Board as a method of local admission to the bar. The first locally trained attorney, George Allen, had been admitted in 1822,37 and now it was no longer necessary for those who wished to become barristers to eat dinners at the Inns of Court in London. Victoria, like Queensland, inherited a divided profession when it separated from New South Wales. Eventually an Act was passed in 1891 to amalgamate the professions in Victoria, after 40 years of strong debate. In South Australia, the first Chief Justice, Charles Cooper, resisted the 95

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arguments of those who wished to separate the profession. It was never formally divided there. Only Queensland and New South Wales retained divided professions at the time of federation, in 1901, but even the colonies with fused professions were vulnerable to the power of tradition. After a century of a supposedly united profession, Victoria’s barristers are still as distinctive and strong as those in New South Wales.38 THE

I N E QU I T Y O F C H A N C ERY

John Willis,39 the first resident judge at what was then the Port Phillip District of New South Wales, was deeply attached to English equity in which he had trained. He is best known for his bizarre conduct towards practitioners, the press and his colleagues. He publicly ridiculed his fellow judges and the lawyers who appeared before him. At first, Willis was welcomed in Melbourne as a sign of some degree of independence from Sydney. His conduct soon changed that, and two of the three Melbourne newspapers came to criticise him heavily. He responded by imprisoning one of the editors. He had been amoved from a previous judicial position in Upper Canada and was amoved again in 1843 after a short period in Melbourne. His great contribution to Australian legal ideas was the Bon Jon case on Aboriginal rights, but it was soon forgotten, unlike his work in equity. Willis drafted rather simplified English equity procedures, which were used in New South Wales for the next 50 years. This was still cumbersome: it was claimed in Queensland that no equity suit for the administration of a deceased estate down to 1866 had produced anything but legal costs. At about the same time, equity suits in Sydney commonly lasted four or five years, leading to the ruin of many litigants.40 This did not match Dickens’ fictional Jarndyce v. Jarndyce in Bleak House, but it was intolerable in a new court with an ostensibly simple structure. Willis sought orthodoxy in equity, complaining that his Supreme Court colleagues had presided over a ‘perfect chaos of irregularity’ in this area.41 In both Sydney and Canada he argued for an entirely separate equity court. That was not created, but an 1840 Act allowed the separate operation of equity cases within the Supreme Court of New South Wales, with a Primary Judge in Equity. Willis did not get the job, which went to one of the principal creators of the chaos, Dowling. Willis was not the only one who wished to turn this preference for Englishness into institutional form. The New South Wales judges proposed in 1843 that there should be three separate courts, Queen’s Bench, Equity and Exchequer, to reflect the structure in England, but nothing came of it. By 1850 the New South Wales Supreme Court was so struck by its self-created limitations that in one case it declared it was sitting as a common law court and could not entertain any applications in equity. This 96

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also occurred in other colonies, such as South Australia, where the Supreme Court had an ‘equity side’ by the mid-1840s. This could not be justified by reference to administrative convenience; it was simply a copy of an English division, which itself would be abolished twenty years later. The judges took a simple structure and made it complex. Castles says that these tendencies showed ‘the strong attachment of the members of the Supreme Court and others to the almost slavish adoption of many Englishbased practices in the legal life of the colony’.42 The judges’ attachment to England led to the adoption of a system with little rational basis, when judged by nineteenth-century standards. The English court structure was a conglomeration of jealous overlapping courts, which were swept away by the Judicature Act of 1873. The Act was not automatically adopted in Australia, although it would have been easy to copy its main provisions. The 1873 Act created one superior court of England and simplified its procedures. In Australia there had only ever been one Supreme Court in each colony, and it was only necessary to tell the courts to make their procedures clearer and do what they could always have done—break down the walls between common law and equity. All but New South Wales and Tasmania had adopted this reform by 1883. Tasmania did not do so until 1932, and New South Wales was one of the last places in the world to make the change when the Supreme Court Act 1970 came into force in 1972.43 English tradition had an abiding quality, even after some of its complexities were abolished there.

BOOTHBY’S LASTING CONTRIBUTION TO COLONIAL INDEPENDENCE Nowhere was the belief in the superiority of English law more deeply embedded than in the heart of Benjamin Boothby,44 a judge of the South Australian Supreme Court from 1853 to 1867. When responsible government came into effect in South Australia in 1857, it was generally believed that the new parliament, responsible to its electors, would be able to make law that suited their needs. It was thought that the political independence granted to the Australian communities would be matched by a lessening of the notion of repugnancy to English law. Boothby rejected these simple propositions. This arrogant man was certain of his own correctness even in the face of opposing views by his fellow judges, both houses of the South Australian parliament, the imperial law officers in London and even imperial parliament. Like Burton, he came to Australia to tell the local people what the law was, and to condemn anything colonial as being unworthy of notice. He decried those who felt that ‘rules formulated by the finest English minds and buttressed by centuries of tradition should be set aside for antipodean convenience’.45 His was the most extreme case of 97

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this affliction in Australian history. He was often joined in his crusade by his colleague, Justice Gwynne. Boothby’s deeply conservative attachment to what he thought was the letter of English law led him to declare that the new Torrens system of land title, South Australia’s gift to the common law world, was invalid. He also said that the entire administration of the criminal law was invalid, as were the customs laws and the colony’s Constitution Act and its court system. Even procedural differences were enough for him to find that a local law was void. Boothby had three grounds for reaching these decisions: that the South Australian parliament exceeded the powers granted to it by imperial law; that its laws had not been reserved for assent in England when some of them should have been; and that some of the local Acts were repugnant to English law. He combined Burton’s deep conservatism and contempt for colonial thought with Willis’ ability to offend his fellow judges and lawyers. Boothby looked down on the locally trained practitioners who had not proved their culinary skills at the Inns of Court. On one issue, it was agreed that he was right, however: he declared the South Australian Electoral Act to be invalid because it had not been reserved for assent in London as required by imperial law. As a result, both the colonial parliament and the laws it passed were invalid. This was repaired retrospectively by an imperial Act. Boothby challenged the whole notion of responsible government in South Australia, casting doubt on every Act passed there. The local parliament established a select committee into his activities, which pointed out the absurd extremities of his views. Repugnancy under responsible government, the committee declared, was limited to direct clashes between local legislation and Acts of imperial parliament applying specifically to the colony. A colonial Act was also invalid if it breached the fundamental principles of the English constitution. Otherwise, only disallowance by the Crown could destroy an Act of colonial parliament. Both houses of the South Australian parliament acted to dismiss him. One government was formed with the sole purpose of doing so, while another collapsed on the issue. Parliament first tried to remove him under the Constitution Act, which Boothby had declared invalid. Ironically, that Act saved him at first. It stated that a judge could be removed on grounds of misbehaviour if both houses petitioned the monarch to do so. The British government refused to advise the queen to dismiss him because the petitions gave no evidence of misbehaviour. Boothby’s actions led directly to the greatest step towards colonial legal independence taken in the nineteenth century. With the agreement of the South Australian parliament, imperial parliament passed the Colonial Laws Validity Act 1865, which applied across the empire except in India, the Channel Islands and the Isle of Man. It gave a narrow test of repugnancy: 98

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colonial parliaments were bound only by paramount force Acts of imperial parliament, whether passed before or after the date of acceptance of the general law. If they conflicted with paramount Acts, colonial Acts were void and inoperative to the extent of the repugnancy. Otherwise, colonial legislatures could pass whatever laws they wished, adopting, rejecting or ignoring general English laws and statutes as they chose. The meaning of this was stated authoritatively in the English case of Phillips v. Eyre in 1870:46 the paramount statutes were those that applied to the colony concerned, by express words or ‘necessary intendment’. The latter referred to statutes such as the Navigation Acts, which applied to all colonies. This was vague, but it was not as restrictive as some of the earlier decisions on repugnancy, nor even the general notion of compliance with the fundamental constitution of England. Under the Colonial Laws Validity Act, colonial parliaments were placed on much more certain ground. There were only four limits on their powers: paramount force legislation of imperial parliament, an inability to legislate beyond the colony’s territory, royal assent whether in London or by the local governor, and the extent of the general powers granted to them. Imperial parliament’s power to impose law on the colonies was rarely questioned, but when a Commissioner of Western Australia’s Civil Court dared to do so, the response from London was blunt; it dismissed him from the Legislative Council and invited the governor to remove him from judicial office.47 The governors were still appointed by and responsible to London, but over time, direct disallowance by London became less common. The legislatures’ general powers were also very wide, although they excluded some matters such as foreign affairs. The Privy Council eventually acknowledged in 1885 that the colonial parliaments were sovereign within their powers, not merely agents of the imperial parliament.48 Although the colonies’ legislatures could now repeal or alter the mass of their received English law, it remained in force until they did so regardless of whether it had been repealed in England. English statutory reforms were not adopted in the colonies unless by imperial Act of paramount force, or by colonial legislation. These became crucial legal problems, because much of the law of England was reformed after the dates of adoption of law in the Australian colonies. It was left to the local legislatures to handle the dizzying complexities involved in reforming the arcane traditions of the common law. Although the Colonial Laws Validity Act severely limited the judges’ powers over local legislation, responsible government in the colonies still differed from that in Britain, as Davidson argues. The governors were subject to instructions from London, rather than being bound to follow the advice of the government which commanded a majority in parliament.49 After 1865, however, the colonial judges had lost their main 99

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weapon, repugnancy with the general law of England, so that responsible government moved closer to its English meaning. Judicial review continued, but for a new, pragmatic reason: it became a means of policing the boundaries between sovereign legislatures. When the distribution of power to make law on different topics was carved out, the courts took the role of deciding which legislature had power over a particular topic. That is a crucial decision in federations, such as Australia’s, and in mature empires, such as the British empire in the late nineteenth century.50 The Colonial Laws Validity Act was seen at the time it was passed as a charter of freedom for local law making, independence within a loose imperial structure. Later, however, it was criticised as a final obstacle to the complete independence of colonial and state parliaments, because it prevented them from repealing or amending paramount force Acts. In the 1890s there were still more than 200 imperial Acts that bound Victoria, for example.51 This later perception should not lessen the Act’s historical importance. It was a great step away from the English umbrella, which had threatened to overshadow the adaptation of law to Australian conditions. Those who drafted it in the nineteenth century should not be held responsible for the failure of law makers in the twentieth century to repeal it when its task was complete. None of this had any effect on Boothby, who continued in his idiosyncratic way, unmoved by imperial parliament’s declaration that he was wrong. Eventually he was amoved in 1867, under Burke’s Act of 1782, which had also accounted for Montagu and Willis. This merely required action by the South Australian governor and Executive Council. The coming of responsible government to the colonies had brought about the adoption of the English notion of judicial tenure during good behaviour,52 but it was an Act applying by paramount force which finally brought him undone, one that was related to the old notion of colonial judges holding office at the pleasure of the Crown. Boothby was amoved by the paramount force of the empire, the last Australian judge to be dismissed in that way. On the whole, from the middle of the century onwards, the legislators were more adventurous than the judges of colonial Australia. English law in this period was changing, but the colonial parliaments were often in advance of the imperial one or acted entirely independently. The effect of any law depended on the interaction of the courts and legislatures. For example, Paul Finn argues that the English notion of individual responsibility for government actions gave way to the collective in Australia.53 In 1853 South Australia passed an Act that allowed legal action to be taken against the government and not merely an office-holder. New South Wales did the same, but in Victoria the legislation was much narrower. Later it was expanded even further in Queensland and New South Wales, after the false start of a refusal of imperial assent in each case. This was radical 100

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legislation; the same reform was not made in Britain or the United States until the 1940s. Under these Acts the Crown was no longer immune from action, as it had been at common law, although there was considerable variation between the colonies’ Supreme Courts as to how much this and other changes allowed the judges to intervene in government decisions. In New South Wales some of the judges minimised the differences between English and local law, refusing to accept what parliament had intended. Eventually the principle was accepted, even by the Privy Council, but after then the judges were still ruled by narrow conservatism and formalism in interpreting the legislation strictly. By contrast, the much narrower legislation in Victoria was interpreted very broadly. This is one of many examples of an independent approach by the Australian colonial legislatures. Different conditions meant different law, as we shall see in subsequent chapters. Like the Crown immunity legislation, the parliaments’ innovations did not always have the support of the courts, but the Colonial Laws Validity Act and the overall attitude of the imperial Colonial Office show that London had no desire to force the mature colonies into slavish adoption of English legislation on most matters.54 Despite this, much colonial legislation simply copied that of England. Many of the English Acts made in the unprecedented surge of law reform after the Reform Bill of 1832 were adopted by the colonial legislatures. The duplication of English statutes had begun by 1828 and continued throughout the nineteenth century. Thousands of sections of English Acts were eventually copied, including much of its commercial law. This sometimes had absurd results, when entirely unsuitable legislation was followed slavishly. One Victorian Act declared that the United Kingdom was not ‘beyond the seas’ from Victoria.55 There were numerous reasons for the duplication of the legislation of England: a feeling that British was best, that these were British colonies which should follow the lead of the parent, that the complexities of law reform required an expertise that was absent in the colonies, and, towards the end of the century especially, a desire to have uniform laws across the empire. Sometimes, English reforms were deliberately not copied, such as the failure to merge the administration of common law and equity in New South Wales. Some colonial conservatives looked back to an England that no longer existed. While the legislatures became more adventurous, the judges became more conservatively English, which led to a clash between local and English legal ideas. The press freedom case involved a liberal judge reviewing conservative legislation, but this was unusual. In most cases, conservative judges reviewed legislation that was liberal or radical by the standards of England. Over the course of the nineteenth century and into the twentieth, 101

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the judges increasingly worked on the assumption that there was one common law, one source of legal correctness. This unitary notion, a product of imperialism and formalism, was a direct attack on the pluralism which had marked the frontier periods. There was less opportunity for local practices to be adopted by the judges and less variation between the judge-made law of Australia and England than there had been in the early periods of the colonies. No longer would the judges willingly engage in political disputes. The common law in Australia became distant and apparently neutral, not the personal and transparent body of values it had been at the beginning. This was not the end of diversity in Australian law, however. The minor courts sometimes operated in different ways, like the colonial parliaments. The Colonial Laws Validity Act allowed the local legislatures to innovate, even though their authority to do so came from London, and they acted within an imperial structure. There was tension between local and imperial ideas in most of the great legal disputes of the nineteenth century, as the legislatures and judges tried to meet local conditions with tools created on the other side of the world. The next two chapters show the results of that tension.

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REPUGNANT LEGISLATION Law making from 1824 to responsible government REPUGNANT LEGISLATION

The Australian colonial legislatures were inferior bodies when they were first established. They did not control the local government, and they were unable to pass laws that were repugnant to the inherited laws of England. Not even the introduction of elections affected these limits, which were not removed until responsible government commenced. This should have been a period of unimportant legislation, local tinkering on the edges of law. The judges, the governors and the colonial office in London were defensive structures, put in place to ensure conformity with the received wisdom of England. That seems to have been the imperial intention, but the reality was sometimes different. Colonial legislation in these years was often deferential to English law, a mere copying of its Acts, but at times it had a vibrant local quality. Some of the colonial Acts preceded major English law reforms by decades, and others were entirely original and in direct conflict with basic English legal principles. Even these changes managed to get past the ramparts of legal propriety, which shows that strict adherence to English standards was not always expected even at the highest imperial levels. Politics was more important in many of these repugnancy decisions than adherence to legal theory. Differences did not end with new kinds of statutes; even when there was a simple copying of English laws, they often operated in a new way in Australia. This chapter concentrates on major legislation before responsible government.

DANGERS IN THE BUSH Bushranging was a violent challenge to the official view of colonial Australia. The countryside was utterly alien to those who had been born 103

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in Europe. In the frontier years especially, there were only occasional paddocks surrounded by the endless ancient bush, with its venomous snakes and spiders, and hidden Aboriginal spears. The bush was much more violent than Britain and Ireland. Familiar and safe, the old countries had only occasional patches of forest among closely settled fields and towns, and no terrifying snakes or spears. When convicts turned themselves into the first bushrangers, they added to the dangers of the bush and challenged the official policies of close surveillance and discipline, and reform through hard work. The first serious threat by bushrangers was in Van Diemen’s Land, where convicts began to run away almost from the time British occupation commenced in 1803. The possibility of starvation led masters to send their convict servants into the bush with dogs and guns to catch kangaroos for food. Many absconded, taking the dogs with them and living by robbery and the sale of kangaroos. The government made proclamations of outlawry, which it later suspended in unsuccessful attempts to induce the runaways to return. At this time there were no courts on the island to try serious crimes, and so many prosecutions were either dropped or reduced to lesser charges. The bushrangers developed links with free people, selling what they had stolen or killed and buying what they needed. In effect they had a network of spies and allies. In 1814 Governor Macquarie issued a proclamation, which may have made things worse. It offered to pardon all crimes short of murder, but seemed to say that people had six months in which to commit further crimes before surrendering. Davey, Lieutenant-Governor in Van Diemen’s Land, then declared martial law, imposed a curfew and banned the sale of kangaroo skins. His proclamation assembled a general court martial to try suspected offenders. Some were hanged in chains and gibbeted in public near the Hobart wharf. Despite its success, Macquarie was furious about the martial law declaration and cancelled it. Macquarie might not have appreciated the seriousness of the danger to the Van Diemen’s Land government. Robbery was so common that farms were deserted and even soldiers were attacked. Davey’s administration was almost in a state of siege. After he was removed from office, his successor, Sorell, tightened security, investigated the friends of the outlaws and sent two military parties into the bush to catch them. This first wave of bushranging ended in 1818, when the last real threat, Michael Howe, was killed and decapitated. He had been dressed in the bushrangers’ clothing of kangaroo skins and carried a book written in blood. The island’s people did not easily forget this experience. When convicts escaped from Macquarie Harbour in 1825 and began to collect arms, farms were abandoned once again. Bushranging culture now extended to their own mock court martial. They also aped the government’s proclamations by offering a 104

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reward for the capture of Governor Arthur. The last of these bandits to pose a real threat to the island, Matthew Brady, was hanged in 1826. The romantic myths about them were soon circulating.1 The meaning of bushranging changed over time. At first it referred simply to runaway convicts, but by the 1830s it had changed to the meaning that is still so familiar. It referred to armed bandits who lived in gangs in the bush and engaged in systematic robbery and attacks on houses. More importantly, it acquired an image of popular resistance to authority. This image included bushrangers being comfortable in the bush, dressing in distinctive ways, and having their own codes of justice under which they punished those who had been cruel to the poor. Although many of them attacked small settlers, the romantic view of them was widespread. Even those who did not support them rejoiced in seeing the police baffled. Self-serving as it may have been, Ned Kelly’s 1879 Jerilderie letter expressed some of this. He claimed that he and his family were victims of ‘the brutal and cowardly conduct of a parcel of big ugly fat-necked wombat headed big bellied magpie legged narrow hipped splay-footed sons of Irish Bailiffs or English landlords which is better known as officers of Justice or Victorian Police’. He also linked his actions to the convict past. Irishmen who resisted England, he claimed, were transported to Van Diemand’s [sic] Land to pine their young lives away in starvation and misery among tyrants worse than the promised hell itself . . . many a blooming Irishman rather than subdue to the Saxon yoke were flogged to death and bravely died in servile chains but true to the shamrock and a credit to Paddy’s land.2

There was no legal definition of bushranging, not even in the Bushranging Acts. Instead, its meaning was constructed jointly by the bushrangers, the police and other officials, and by the public who admired, aided and feared them. In this broad sense, there were two major waves of bushranging in mainland New South Wales. The first involved mostly runaway convicts in the 1820s and 1830s. Therry claimed that this was largely caused by the brutal punishment inflicted on convicts. Of the hundreds of bushrangers to go through the criminal courts, he said, ‘I do not remember to have met one who had not been over and over again flogged before he took to the bush’. Some men, he said, were driven by cruelty to armed rebellion. They were hanged under the Bushranging Act, which was passed to deal with the first crisis.3 The second wave of bushranging occurred from the 1860s, well after the end of transportation. It led to changes in policing and to the enactment of the Felons Apprehension Acts from 1865.4 The New South Wales Bushranging Acts had no parallel in English law. The first of them was passed in 1830 under Governor Darling and was 105

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used by the newspapers as further evidence of his repressive tendencies. The legislature passed it as a temporary measure, in response to a crisis. It then re-enacted it every two years until 1842, although some of its most draconian features were toned down in later Acts. The Acts came to have a broader significance than a response to Bold Jack Donohoe, who was in action in the Campbelltown area up to 1830. They affected the basic freedom of everyone in the colony. The 1830 Bushranging Act did not prohibit bushranging as such, but it did attempt to prevent it. It authorised anyone who had reasonable cause to suspect that other people were escaped convicts, to arrest them and take them before a magistrate. Those who were arrested had to prove that they were innocent; and if they could not do so, the magistrate could hold them until proof was given, or send them to Sydney for examination. The Act also gave magistrates power to issue search warrants to the police. Armed persons could be arrested on suspicion of robbery and had to prove that they would not have used their guns illegally. Those who could not prove this were subject to three years’ imprisonment. The Act also imposed life imprisonment on those who received goods obtained by robbery, and capital punishment on those who assisted robbers. As well, it provided that robbers and housebreakers were to be hanged two days after trial, which reduced the chance of vice-regal clemency. Just as capital offences were being reduced in England, the Bushranging Act extended them. The legislature in Van Diemen’s Land shared this attitude in 1834, when it refused for a year to follow England’s lead in abolishing capital punishment for sheep stealing. Some of these repressive measures of the 1830 Act had colonial precedents, if not British ones. Convict discipline included a system of passes, house searches, and arrests on suspicion, and some of this spilt over onto the free population. These controls had been tightened after Bigge’s reports, particularly under Governor Darling. The Bushranging Acts officially extended these broad measures to free people, instead of doing so only incidentally. As Byrne notes, the whole population, particularly in the bush, became subject to surveillance. By the time the Bushranging Act came up for renewal in 1832, Darling had been replaced as governor by the more liberal Richard Bourke, but a strange alliance of liberals and conservatives led to the continuation of the legislation. Bourke reluctantly approved of the renewal, deferring to the opinions of those on the Legislative Council who had been in the colony longer than him. He pressed his objections more strongly at the 1834 renewal, stating that the Act was contrary to the spirit of English law. He sought the opinions of the magistrates and senior police officers, but found that they were in favour of the Act. The council referred the issue to a 106

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subcommittee under Forbes, the Chief Justice. It reported favourably, and Bourke once again gave way. The liberalism of Bourke and Forbes allowed this repressive legislation to continue in force. Bourke deferred to local opinion, while Forbes argued that the conditions of New South Wales differed from those of England, and that there was a precedent in the vagrancy laws of England in any case. Burton, at this stage the junior judge on the Supreme Court, held out for repugnancy. As in the usury case discussed in chapter 5, he had a much narrower view of the allowable scope of local law making, and stated that this Act conflicted with English law. This was the first time in which a judge exercised his right to declare an Act repugnant under section 22 of the Australian Courts Act 1828. Burton argued that English law placed the onus of proving a crime on the prosecution. This was reversed under this Act, he said, so it was repugnant and void. The Legislative Council relied on the views of Forbes and Dowling that the Act was valid and pressed on with it, as it had a right to do. Its view was backed up in London, which confirmed the Act. The Colonial Office’s belief was that the legislation protected government authority, not merely property. It had not forgotten the lessons of Van Diemen’s Land. In this case, Forbes’ regard for local law making powers led him to support an authoritarian Act passed by a Legislative Council composed of conservative ‘exclusives’. Forbes was involved in the legislation at every level: he moved to suspend standing orders to allow it to be passed in one session, headed the subcommittee that approved it, and finally persuaded the council that it had power to pass the Act. The arch-conservative Burton’s attachment to English propriety caused his attack on this statute—just as he stuck to the letter of English law four years later, when he presided over the successful prosecution of the Myall Creek murderers. Liberalism and conservatism did not always have predictable results. Forbes and Dowling later obtained personal knowledge of the nature of the legislation they had approved. Dowling was arrested under the Bushranging Act while walking between Newington and his chambers in Sydney. And Forbes was interrogated by a constable near his house at the foothills of the Blue Mountains. The Act had its strongest effects on free people. Convicts and emancipists were able to show passes, tickets of leave or pardons, but free people had no documents to prove their innocence. The constables who intercepted the judges must have been especially vigorous, however, because their clothing should have indicated that they were not runaway convicts.5 The combination of bushranging and convict discipline created this great attack on the civil liberties of the people of New South Wales. Anyone was able to arrest anyone else on suspicion, and some landowners created their own lock-ups. The Act gave the magistrates wide power over eman107

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cipists, allowing the magistrates to keep an eye on them even after their sentences expired or their pardons were issued. This meant that convict surveillance did not end with the sentence. The side effect was to allow free people to be arrested as well, which was especially irritating when the arrest was carried out by a convict or emancipist constable. Through this Act, traditional methods of convict discipline were extended across the community. THE

FAILURE OF POLICING

Three different kinds of policing were used against bushranging, but none was particularly successful. The traditional English method, in use since the colony began, was a local constabulary under the control of amateur magistrates. The magistrates were powerful local figures, little magnates of the land as Therry put it,6 who resisted the loss of their control over the police. This minimalist approach to government had its own slant in New South Wales, as many of the constables were serving or emancipated convicts. The exclusives resented the idea of being accosted by convict constables, just as free people generally resented the confusion between them and convicts. Despite concerns about cost and a desire not to move away from the gentleman-magistrate model, the lay magistrates were supplemented by paid Police Magistrates in larger towns across the colonies. Bushranging was a problem outside the towns, and so it was the local amateurs who had to deal with it, generally without much co-ordination with other officials. Before 1862 there was not one police force, but a number of them, operating separately and, on major crimes, ineffectively.7 The Mounted Police force was created in New South Wales in 1825, mainly to deal with the bushranging crisis.8 This quasi-military force, so different from the English model of policing, was designed to supplement the local police. Its members were serving soldiers, under the command of a military officer. They slaughtered Aborigines at Waterloo Creek in 1838, but they also brought in the Myall Creek murderers. Although they were more successful than the local constables, they did not manage to stop bushranging. The third kind of policing began in New South Wales after responsible government commenced. The liberals, who had won the 1860 election, created a uniformed and centralised force in 1862, which had no parallel in England. The squatters had lost control over the legislature, and now over the local police as well. This happened nine years after a similar force was created in Victoria along paramilitary lines. The other colonies also centralised their forces in the mid-nineteenth century, except Tasmania, which did not do so until 1899.9 At the same time, most of the specialist police forces, such as the gold police, were abolished. The British had created a single force in London in 1829, and then in the whole of Ireland 108

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in 1836. The Irish notion of one quasi-military force was tried in New South Wales in 1850, but the experiment lasted only two years. Now it was made permanent. This does not mean that the Australian colonies simply copied British and Irish models. As Finnane points out, local influences affected these reforms in Australia, such as the presence of convicts, Aborigines, bushrangers and gold rushes. The new, largely immigrant, centralised force had no immediate success against bushrangers, whose bushcraft was far superior. The bandits had a deliberate plan of humiliating the police, which was gleefully reported in some of the newspapers. Frank Gardiner, Ben Hall and other bushrangers of the 1860s were provocative and elusive proof of official failure.10 They took over the town of Canowindra twice, holding it for days, and raided the much larger centre of Bathurst. Huge gold robberies made the police look foolish. When the New South Wales legislature passed the Felons Apprehension Act in 1865, it authorised the government to declare bushrangers as outlaws, after which anyone could take them dead or alive. Harbourers, no longer subject to capital punishment, were subject to imprisonment and loss of property. In the familiar way, the legislation was attacked as non-British and unnecessary. By this time, however, the notion of repugnancy with general English law had been abolished, except in Boothby’s mind. Local problems could be dealt with in local ways, and it was sometimes the liberals who were the most repressive. Bushranging was a uniquely Australian problem, which was met by a mixture of local and imported legal tools. The first techniques were dubiously lawful adaptations of convict discipline. At the end there was less concern about compliance with English law, but less variation from it. Ned Kelly’s trial, while it had legal weaknesses, would not have been conducted very differently in England. The myth surrounding it could never have been mistaken for England, however. Ned, the hero of thousands and incarnation of evil to thousands more, uttered the immortal final words of the trial. When he was sentenced, he was told by Justice Barry that he would be taken to such place as the governor directed for his hanging. ‘I will go a little further than that’, he replied, ‘and say I will see you there where I go.’ Within four weeks both men were dead, the judge in his bed and Kelly at the end of a rope. He was hanged on 11 November 1880.11

P A T E R N A L I S T L A B O U R L AW In 1828 the New South Wales Legislative Council passed a Master and Servant Act, which was both a symbol and an essential feature of the deep inequality between workers and their bosses in the nineteenth century. The Act gave power to the magistrates to hear complaints by either side, but 109

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it continued an old difference in remedies. If a servant failed to work as agreed, or damaged or lost property, or engaged in misconduct, the magistrate could send him or her to gaol. This forced workers to see out their contracts, even if others offered them higher pay. In contrast, if the servant sued for failure to pay wages or for ill-treatment, the only order that could be made against the master was to pay money to the servant. It was an essentially paternalist relationship under which each side owed a broad range of obligations to the other, and in which punishment was an essential component.12 This was the first Act of its kind in Australia, and all colonies passed similar Acts several times during the nineteenth century. They remained in force throughout that century and most of the twentieth, until the states began to repeal them in the 1970s. They were not unique to Australia, but were modelled on English legislation. The English Acts were repealed in 1875, leaving the Australian ones to linger for at least another century as imperial orphans, which was a reversal of their usual positions on reform. It seems that the English Acts were not formally part of Australian law, at least before the constitutional changes of the 1820s. In 1818 Governor Macquarie proclaimed that the English master and servant law did apply, but Judge-Advocate Wylde held that it did not and that the governor’s proclamation had no effect. In London, James Stephen confirmed Wylde’s view: the governor had no power to legislate in this way, he said, and the English laws on this topic had not been adopted. This was because there was no Court of Quarter Sessions in the colony to hear appeals from the magistrates.13 This may have been the imperial position, but in fact the magistrates did hear these cases before 1818. Masters prosecuted servants for neglect of work, and servants sued for wages. The magistrates’ courts were the courts of the poor and convicts, in which the rules of convict discipline were blurred with those governing masters and free servants. It is not clear from the records of most cases whether the magistrates were dealing with a convict or a free person, and they do not seem to have been too concerned about the distinction. This allowed both to sue for wages and both to be punished for poor work. Convict workers were called ‘servants’ or ‘government servants’, and the rules governing their disobedience and neglect of work were as much derived from master and servant law as from their penal status.14 The similarity between convict discipline and the penal provisions of the master and servant Act was a raw point to free servants. This was exacerbated by government insensitivity. The New South Wales Legislative Council re-enacted the legislation on the very day in 1840 on which the governor announced that transportation of convicts to the colony was to cease. There had been a vast public meeting and petition against the Act, 110

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but with little success. A protest in Melbourne in 1845 made the same point, that free workers should not be treated as if they were convicts. The Van Diemen’s Land legislature was even less sensitive: it also passed a new Act at the same time transportation was ended, 1854, but it added a new penalty, solitary confinement. One magistrate could impose this penalty on a free worker; it took two to do the same to a convict. Whether intentionally or not, these master and servant Acts had the appearance of treating all servants as if they were convicts. They gave magistrates discretionary power over the work of every servant in the colonies, convict, emancipist or free.15 As more categories of workers were drawn into the Acts, this power increased. This does not mean that the legislation was just an instrument of ruling-class power, under which cases were always heard before biased members of the employers’ class. These laws remained in force in Australia despite the election of governments under universal male suffrage. Those governments merely removed the penalty of imprisonment and replaced it with a fine. The continuation of the laws was due to a change in the way in which they were used. Up to 1830, they were used much more by masters than by workers, usually in theft cases, and the magistrates decided most serious points in favour of the masters. Even at that time, however, the law was not simply repressive. There were many ambiguities in the master and servant relationship, over ownership of property, the length of agreements and other terms. These were resolved between the parties, and even though the law favoured one group, it was a source of rights and arguments for both sides.16 The legislation had a new function by the middle of the nineteenth century, which was carried through to the twentieth. Prosecutions continued, even as late as 1963, but the Acts came to be used much more often by servants than masters. The penal provisions were sometimes used against those who went on strike, but punishment was generally confined to marginal workers such as Aborigines, Chinese and ex-convicts. This restriction was apparently due to effective collective action by white free workers, as was a change in judicial attitude. The magistrates and judges began to interpret the penal provisions more narrowly. The legislation also became less significant when the new industrial laws were created at the end of the nineteenth century. For most workers, the Acts merely became a convenient way to recover their wages.17 Even when an Act such as the master and servant legislation had an obvious English parent, it did not necessarily operate in the same way in Australia. In both places, these Acts had a universalising tendency when they drew what had been independent contractors into what became the new category of employees. Labour relations in nineteenth-century Australia had two distinctive features, however: the lingering influence of 111

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convict status and the dominance of pastoralism. These were fed into the debates and daily workings of the legislation, to produce a different result from the parent legislation. Locally developed working customs were put before the magistrates, who had to decide whether they were legitimate or a form of misbehaviour, whether it was a breach to end work early on a Saturday or not, whether certain supplies were a sufficient substitute for wages, and many other issues. The result was a local form of regulation. Differences in operation of a law are as important as differences in the rules themselves. The rules are merely the skeleton of the law.

R E D U C I N G T H E C R U E L T Y O F D E B T L AW There was a passionate campaign to abolish imprisonment for debt in England, beginning in the eighteenth century.18 It reached its peak in the 1830s, but was not fully successful until 1869. The aristocratic view was expressed most often in the House of Lords, which managed to block a number of reform bills because of innate conservatism and a wish to continue the special protection given to land. There was general recognition that the exemption of land from seizure for debts would have to give way once debtors’ prison was abolished. The reformers included humanitarians and utilitarians, none of them more outraged than G. C. Smith, a minister of religion who was imprisoned by a rival. In one of his many tracts, called ‘The Horrible Evils of Imprisonment for Debt’, he said that it ‘arms a vindictive, obstinate creditor, with power to deprive a free-born Englishman of his liberty in a free country’. Dozens of others made similar arguments. The campaigners often stressed the irrationality of imprisoning those who could not afford to pay. On the other side were small traders, squeezed between their creditors and their own defaulting debtors; they wished to retain imprisonment and to extend the direct remedies to cover all kinds of property. One of their spokesmen, J. H. Elliott, argued that the proposals to abolish imprisonment for debt were ‘another instance in which the interests of the industrious many have been sacrificed to the idle and dissolute few’. Creditors were men of ‘self-restraining virtue’, while debtors merely suffered ‘the self-inflicted misfortunes of knaves and rascals’.19 Reform in England came very slowly, as these class interests were readjusted by a progressively more representative parliament. The first major change was in 1838, when the creditors lost their right to imprison their debtors before proof of the debt was accepted by the court. Pre-judgment imprisonment was still possible after 1838, but it now required an allegation that the debtor was about to abscond. This began the squeeze on the creditors’ autonomy, their right to control the lives of their debtors. Under the same Act, land became available, although clumsily, for the enforcement of debts, as did most forms of intangible property such as bank notes. This was not the end of the reforms. Money owing to debtors could not be seized 112

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on behalf of judgment creditors until 1844. The 1838 Act also left post-judgment imprisonment untouched; creditors still had a right to imprison these debtors regardless of their honesty. That was gradually altered between then and 1869, when this, too, was restricted to debtors who had committed broadly defined commercial offences. The reform has been misnamed as the ‘abolition’ of imprisonment for debt, but in fact it was its re-enactment under the moral code of the Elliotts of England. Its effect should have been to restrict imprisonment to guilty debtors, but in reality it led to its restriction to those at the bottom of the social and economic structure. The reform gave only an appearance of ending the law’s cruelty. Imprisonment for debt of the poorest and least articulate people continued in England until 1970, when it was finally abolished. The other major change in England was to insolvency and bankruptcy law. These laws were frequently altered in the middle of the nineteenth century, as alliances of interest came and went. Eventually, in 1861, bankruptcy, complete relief from debts, became available to everyone, and not merely traders. All the Australian colonies inherited the unreformed debt-recovery laws of England, with their horrible evils, because in each case the date of reception of English law was before the first great English reform in 1838. Convict debtors could be in an even worse position than others, as James Moorhouse’s petition in 1836 showed. He was a ticket of leave holder whose business (a boarding school) failed; his creditors managed to have him transferred from the ordinary debtor’s prison to the penal settlement at Port Macquarie. Worse still, the colonies did not inherit insolvency or bankruptcy, the two main ways in which imprisonment for debt was alleviated.20 The imperial parliament gave temporary relief in 1823, when the New South Wales Act included a bankruptcy law that was open to all classes of debtors, but this was only a temporary provision. When it expired, the law was left to the local legislatures. There was also an imperial Act in 1813 which recognised that land in the colonies did not have the same social and political influence as in England: it became available to creditors in the enforcement of their debts, 25 years before England. The people of South Australia were very conscious of its superiority over the penal colonies of the east, and this apparently had a surprising effect on its debt-recovery law. In 1837 Justice Jickling decided that local law did not allow the arrest of debtors. The governor pressured him to change his mind, and he soon began to issue arrest warrants, but only when there was an assertion that the debtor was about to abscond. That is, a year before imperial parliament finally made one of the great reforms of English law, Jickling did the same without fuss. He may have been influenced by the fact that imprisoned debtors in South Australia could only be kept in miserable conditions in tents. There was a similar reluctance to imprison debtors in the early years in Western Australia, where only absconders were 113

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sent to gaol.21 Ironically, these were the states in which imprisonment for debt lasted longest, into the late twentieth century. Imprisoned debtors in Australia campaigned for law reform, but their aim was much more modest than the Mr Micawbers of England who sought the abolition of imprisonment for debt. Australian debtors usually petitioned only for an insolvency law, which would release them from gaol after some time but which would not wipe out their debts. This modest claim would merely have placed local law in the same position as the unreformed law of England. The colonial debtors claimed that it was unconstitutional to imprison debtors without the possibility of relief, and that to do so gave their creditors complete control over their lives. One debtor told the Colonial Secretary in Hobart that ‘you can hardly conceive the anguish of mind bordering on insanity under which people labour who have been so long confined’.22 This was particularly urgent in South Australia during the recession of the 1840s, when business people who had once been successful now languished in miserable prison conditions. One of them angrily asked the governor to state whether he would keep his promise to pass an insolvency law, or ‘whether or not the blessings of the English Laws are in force in this Colony’.23 The deprivation of the rights of Englishmen was a constant theme in these petitions. In Adelaide this was backed by claims that South Australia was hypocritical, with its pretensions to liberality despite its more punitive debt laws than the penal colonies. The imprisonment of supposedly respectable people attracted attention in Sydney as well. A grand jury in 1828 found that conditions for imprisoned debtors in Sydney were . . . very lamentable. One of them, who had been very respectable, assured the Inquest that almost every new debtor undergoes a considerable degree of cold and sickness, when first imprisoned, until he gets accustomed to the damp and stench of the water, which, oozing through the wall next to the rocks, runs freely through the sitting room of the unfortunate inmates . . . The violence done to the moral feelings and habits of the debtors, by their being perfectly exposed to the language and society of the malefactors, who are necessarily permitted to take the air in the same yard is a still more deplorable consideration.24

Sydney debtors were moved to a new gaol, called Carter’s Barracks, but the sheriff soon complained that it was ‘altogether unfit . . . as affording proper accommodation for any respectable individual who may have the misfortune to be confined therein’. In this prison, as in Melbourne, some debtors were allowed to live in the Rules, a fixed area of the town, while still being formally imprisoned. This was no local innovation, but an idea imported from the great debtors’ prisons of London. Many creditors argued that the idea was ridiculous, but it was one of the ways in which a cruel 114

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law was made bearable.25 The Sydney debtors were moved again, to Darlinghurst gaol, which was built in the penitentiary style with multiple isolated cells. The debtors were required to live not in the cellblocks, but in the Deputy Governor’s house, with their own exercise yard. Until debtors were declared at least semi-criminal, they could not be treated in the same way as criminals. The colonial legislatures passed many reform Acts, which oscillated between sympathy for debtors and sympathy for creditors, and from English precedents to local innovations. Imprisonment for debt was abolished in stages, as in England, but it happened much earlier in Australia. In New South Wales, for example, an abolition statute was passed in 1843, 26 years before the final English reform. This was clearly repugnant to English law, and London hesitated before approving it, which it did on the advice of the colonial judges. A bankruptcy law for all debtors also came decades earlier in New South Wales than in England. These reforms did not mean the true abolition of imprisonment for debt, any more than they did in England; the poor and ill-advised became its main victims. An article in the Melbourne Review of 1880 pointed out the obvious, that the abolition legislation left debtors half-way between civil law and criminal law, subject to imprisonment without proof of a crime.26 More than a century later, the Western Australian parliament is still to understand this argument, as debtors continue to be imprisoned there. Creditors in the west retain some of their ancient autonomy. There were many political and social reasons for the relatively advanced state of colonial debt recovery law, but the coming of democracy for white males was not one of them. The most important reforms were passed by partly elected legislatures with conservative majorities. Conservatism meant something different in Australia. Despite its nostalgic references to England, it did not necessarily cling to an aristocratic past. Instead, in the eastern colonies it stood primarily for the financial interests of squatters. There was also some evidence of liberalism in the legislatures, among the judges and even some of the appointed members. The ambiguously liberal Robert Lowe told the New South Wales Legislative Council that he hoped imprisonment for debt would be abolished: Sincerely do I pray the Council to blot forever from the statute book, the foulest stain which yet disgraces the colony, and so while you daily supplicate the Throne of Grace for mercy and forgiveness, you can say with truth of heart, ‘Father forgive us our debts, as we have forgiven our debtors’.27

No one was immune from the recession of the 1840s, and that may have been the strongest influence on the reforms to local debt-recovery law. There was strong opposition to some of these changes, and the colonies did not all act with the same speed; for example, imprisonment was not abolished for all classes of debtors in Tasmania until 1867, only two years 115

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before the final reform in England. Even in 1866, one debtor spent more than 200 days in Hobart Gaol for debt. In bankruptcy, however, Tasmania was much more progressive: a full bankruptcy Act for all classes of debtors was passed in 1836.28 Those with English hearts could comfort themselves that none of the early changes to colonial debt-recovery and insolvency law would have been surprising to the members of the British parliament. Most of these reforms were under debate there, and some began operation in the English lower courts at about the same time as they were adopted at all court levels in the Australian colonies. Colonial innovation on these subjects eventually ended when full reform was finally adopted in England. When that happened, the colonies abandoned their own approaches and meekly followed the new laws of the parent. The reforms had the whole-hearted support of some of the judges, which explains why they did not challenge them on the ground of repugnancy to English law. The New South Wales judges, in particular, were in the thick of these changes, favouring the abolition of imprisonment and the broad availability of bankruptcy.29 The most important bankruptcy Act in New South Wales was passed in 1841, just two years before the main imprisonment for debt abolition Act. It allowed all debtors to take advantage of bankruptcy, a reform that was twenty years away in England. The Act was drafted by William Burton, who stuck so strictly to English law on other issues. It allowed debtors to take ‘Burton’s purge’ in ‘Whitewash Hall’. Burton said that he modelled it on a bill he had drafted when he was a judge in South Africa. He dedicated his book about the Act to the merchants of Sydney, describing himself as their ‘Faithful Friend and Servant’.30 Burton shared the broadly felt sympathy for the business people who had suffered in the recession. John Gava claims that the 1841 Act showed a shift from a punitive attitude to one seeking an efficient solution to the inevitable consequences of a recession. The aim was to distribute the debtors’ assets and allow them to resume business quickly, while protecting creditors. This reinforced local commercial customs and the local attitude that was clearly expressed by a South Australian in 1842: the ‘happier spirit of modern legislation [is] that Bankrupts are not criminal but unfortunate’.31 This attitude was also reflected in the Supreme Court’s interpretation of the legislation, according to Gava, when it failed to read morality into the 1841 Act. The Privy Council insisted that morality was an essential feature of bankruptcy law, which led to an extraordinary tussle. The Supreme Court refused to follow the Privy Council, saying that it had not made an ‘express decision’ on the point. Despite a subsequent Privy Council decision reiterating its view, the Supreme Court stuck to its guns and continued to follow its own interpretation right through to the repeal of the legislation 116

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in 1887. This judicial attitude was apparent to some people in the colonies: in 1860 one Victorian referred to that colony’s Supreme Court’s ‘colonial licence with which it sometimes construes the law rather according to public convenience than legal principle’.32 Further legislation was passed when the recession deepened in 1843 and 1844. After Macdonald v. Levy (1833) held that English usury law did not apply in Australia, the subject was left to the new legislatures. In Van Diemen’s Land and New South Wales, the Legislative Councils promptly passed Acts making clear that the English usury laws did not apply there. Burton once again declared that this legislation was repugnant, but was overruled by the other members of his court, the Legislative Council and London. The absence of restriction on interest rates cleared the way for profitable investment by British moneylenders. Once the recession took effect, however, attitudes changed. The Van Diemen’s Land Legislative Council was bombarded with petitions for and against a usury law; those in favour stressed that ‘exorbitant Interest should not be allowed to fatten on the very vitals of the Colony’, while those against argued that interest rates, like water, should be allowed to find their own level.33 In 1843 Wentworth proposed a new usury law for New South Wales under which rates were to be limited to 5 per cent. This would apply retrospectively, which excited the local and British banks and moneylenders. The Legislative Councils heard fierce criticism of British companies that had been lending at 12.5 per cent in the belief that they had a right to earn higher rates in the colonies than at home. This bill was defeated, but a more moderate one was passed in 1844. Governor Gipps reserved his assent for the new one, and the imperial authorities stalled for time. This issue had the potential to cause a great constitutional and economic clash, Sydney versus London, and the squatters versus the banks. The colonies were dependent on British capital, despite its sometimes ruthless desire for profits. The heat was removed from the debate when the economy improved in 1845. There was greater innovation in an 1843 New South Wales Act, which allowed pastoralists to obtain loans on security of their wool clips and livestock. Under this law loans were secured on wool even before it was grown. Squatters had no firm land title to mortgage, and even freehold land had suffered a disastrous drop in value, so this was the only way to obtain loans when moneylenders had doubts about the squatters’ solvency. The Colonial Secretary complained that this Act was deeply opposed to English law and allowed it to remain in force for only two years, but Wentworth and his allies in the Legislative Council found a way to keep the new law in force. They felt that it had saved individual pastoralists and even the colony itself. To avoid the two-year deadline, they repealed the first Act and made a new, similar one with a new expiry date. Gipps 117

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reserved this for London’s assent, but the principle had been won. Eventually stock and wool liens spread to the other colonies and became a permanent, innovative feature of Australian law. In this legislation there was an unwitting return to the legal ideas of 40 years before. The first wheat farmers had held secure title to their land, but it was less valuable than the crops that grew on it. Collins and Atkins, the amateur judges who began the process of adapting English law to Australian conditions, had recognised local customs when they allowed farmers to give security over growing crops, and now Wentworth relied on a similar principle. However, the privileged position of the squatters (who dealt in wool and livestock) meant that farmers who grew crops had to wait longer for the revival of loans secured on those crops. This supposed innovation was not made in Victoria until 1878.34 These advanced debt laws were passed by conservative Legislative Councils and in spite of their formally limited powers. They clearly contradicted important English laws, yet most of them were allowed past the triple filters of the judges, the governors and final approval by London. Even Burton, who claimed to be so attached to English propriety, approved of the abolition of imprisonment for debt, which was perceived as a relatively unimportant step after his liberal bankruptcy law was passed. There was more to law making in this period than simple compliance with England. Local conditions and the personal interests of important figures were at least as significant as that. The notion of repugnancy to English law often gave way to politics.

M A S S L AW B R E A K I N G B Y T H E S Q U A T T E R S Squatters were the most audacious breakers and makers of law in Australian history.35 By simply taking the land they wanted for grazing and wool growing, they contradicted the basic imperial land policy, which had been in force since the colonies began. London’s ideal had always been that Australia should be a country of farmers, a distorted mirror image of Britain. Close settlement meant control and civilisation, adherence to the authorities’ model. Once the squatters’ great land grab took hold, which saw much of the good land of eastern Australia taken by 1850, this official view was entirely out of step with the colonists’ actions. The law limped along behind popular behaviour, covering up the embarrassing cracks that developed between the two. The new policy was made by unofficial behaviour, not by official law making. James Stephen, London’s legal man, confessed that this was so in 1836: In the remoter part of the vast region comprised within the range of the Australian colonies, the power of the Law is unavoidably feeble when compared with the predominant inclinations of any large body of the people. In such a Country, unless supported by a Force either of Police or Soldiery

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irresistible and overwhelming, unpopular Regulations must become little more than a dead letter. Thus, in New South Wales, the Squatters (to employ the significant Local Term), find in the high upset price of land some of the advantages which a smuggler in other countries derives from a high rate of duty. Their proceedings, instead of being condemned and opposed, are countenanced and supported by the Society to which they belong . . . The case of Port Phillip is but an example and illustration of the prevailing triumph of popular feelings over Positive Law.36

The Australian colonies inherited a simplified version of English land law. Many of its feudal encrustations were missing, but central features remained, according to the authorities: that all land was in the possession of the Crown until it disposed of it, and that the only legitimate land title was an estate held under the Crown. This may have clashed with the reality of bourgeois property holding in Australia and with any notion of native title, but this feudal idea was affirmed by the New South Wales Supreme Court in 1847. It would not come into serious doubt until the Mabo case in 1992.37 Under this theory, the Crown’s representatives, the governors, gave away land in the early years, and began to sell it in the 1820s. Simple land law did not necessarily result in clear titles. The chaotic consequences of early conveyancing were shown in chapter 3. These problems were magnified when it was found that the Crown grants were invalid because they had been made in the names of the governors rather than the Crown. This was soon fixed by legislation in New South Wales and by the reissue of deeds in Van Diemen’s Land, but people still treated their land in a casual way. Even in rationally planned South Australia, three-quarters of the land title documents were lost by 1857. Problems such as this, as well as complications caused by unsatisfied conditions for Crown grants and unpaid quit rents, still had to be resolved. New South Wales created a Court of Claims and Van Diemen’s Land a Caveat Board to settle these disputes. These were deliberate attempts to avoid the complexities and injustices of formal law and the courts. The commissioners were instructed to act according to ‘good conscience’ rather than the law; however, they did not have the final say, which remained with the governors. This was an early example of the legislatures expressing their frustration at legalism by establishing a tribunal to avoid strict law, and further evidence of the diversity of colonial law even after the constitutional changes of the 1820s.38 The governors wanted certainty and control, and colonisation within fixed areas. In the 1820s they established the limits of settlement in mainland New South Wales, the area within which occupation was permitted. Land distribution should have been an orderly process under which it was surveyed before being placed in private hands. This policy of close 119

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settlement was tried in its most organised form from 1836, in the new colony of South Australia; the Wakefield theory, which was tried there, required sales rather than gifts of land, with the proceeds going to further immigration. The evils of a convict society could be avoided as orderly growth ensured civilised behaviour. This theory required substantial prices for land, a minimum of twelve shillings an acre in South Australia.39 Imperial land policy for New South Wales came to acquire some of these features, but it was shattered by the actions of the squatters. The term ‘squatting’ was first used in Van Diemen’s Land, where it referred to lower-class men who moved onto vacant land and plundered their neighbours’ stock. By 1836 it acquired a new, respectable meaning. In the 1830s and 1840s there was a vast rush for land by people of all classes, who simply took their sheep and cattle beyond the limits of settlement in a search for pasture. In these years they grabbed the best pastoral land, from the Darling Downs to Melbourne, although with less success in South Australia. Large-scale squatting occurred later there, as it did in the vast bulk of Queensland. People became proud to call themselves squatters, the aristocrats of Australia.40 In nineteenth-century official terms, the squatters were trespassers on Crown land, but the real damage they did was to the Aborigines whom they cast aside with guns, disease and alien animals. The Myall Creek massacre took place on a squatter’s run, largely by squatters’ servants. It was far from the worst of its kind. Following the analysis in the High Court’s 1992 Mabo decision, the squatters were trespassers on land held under native title, which made this the worst invasion of legal rights in Australian history. Few white people saw it that way at the time of the land rushes. The nineteenth-century debate was between squatters on one side and the governors and Wakefielders on the other. South Australians were concerned that if land could simply be taken, even at a nominal licence fee, their own enterprise would be jeopardised. The squatters endlessly rationalised their vast breaches of the law and tirelessly pressed their claim for secure tenure. They claimed that British land policies were entirely inappropriate in a country that was much more suited to pastoralism than farming. It was uneconomic for pastoralists to buy land even at less than £1 per acre, but secure titles were needed to give an incentive to improve the land. Pastoralism was the saviour of the vast colony of New South Wales, they claimed, and the way in which it could turn from the disgrace of convictism to respectability. The squatters’ eventual control over land policy was the result of more than a simple refusal to follow the official view of law. They dominated the New South Wales Legislative Council in the land rush years and pressured the governors and London. The debate over land policies also fuelled their demands for greater self-government. If ever a class of men 120

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acted in a self-interested way in a legislature, this was it. They did not have complete control over law making, though. Much of the official land law was made by the governors and by Crown prerogative and imperial parliament in London. Most land policy was an imperial matter before 1852, when it was passed to the colonial legislatures.41 The debate over squatting had all the ingredients of the best brawls over colonial law: London versus the colonies, popular versus official visions of law, pastoralists versus the bourgeoisie and workers, Sydney versus the bush. The colonial and imperial governments gave in to this pressure and mass disobedience of the law. In mainland New South Wales, where squatting began by 1820 within the settled districts, the governments of the 1820s responded by allowing them to graze their stock on Crown land under a ticket of occupation. This allowed the squatters to take their stock wherever they wished, but it did not mean that they acquired title to the land. A new system began in 1827 under which they had to pay an annual rent of £1 for each 100 acres they used. Again, they were not given land title or compensation for the improvements they made to the land. This system applied only within the boundaries of settlement.42 Once the official settlement limits were burst in the 1830s, the government’s close-settlement policy was in tatters and even this legalisation after the event was insufficient. The squatters, who now included the wealthiest and most powerful people in the colony, demanded secure title at minimal cost; white men’s greed was at a peak. Governor Bourke, caught between the contradictory demands of the squatters and the British government’s close-settlement policies, found a way to cover the cracks by legitimising what he could not stop. His 1836 colonial Act allowed the issue of licences to those who had unlawfully occupied Crown land. This was the first squatting Act, but it, too, failed to give them secure tenure. For £10 a year, a squatter could run as many animals as he wished over as much land as he chose; Ben Boyd held 426 000 acres for his £10.43 No particular piece of land was designated in the licence. This legislation could not succeed without detailed administration; the new Crown lands commissioners had no power to resolve boundary disputes nor any effective means of preventing illegal squatting. The Act was a vast change to English notions of land holding, however—one that the colonial judges and London let past the repugnancy test. Bourke’s successor, Governor Gipps, passed an Act based on similar policies to the first squatting Act, but Justices Burton and Willis declared that it was repugnant to the laws of England. Burton was now concerned that the £10 fee was a tax, which could not be imposed in this way. Gipps persuaded the judges to withdraw their objection and lodge a more mod121

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erate one. Deviously, he then told them that they were outside the two-week period for objections, and that he would ignore them.44 London supported Gipps, and that was the end of the only judicial objection to some of the most radical legislation passed in the repugnancy period. The main change in Gipps’ 1839 Act was that it created commissioners with power to decide boundary disputes and a wide discretion to remove licences for offences such as attacks on Aborigines. Their failure on the latter point is shown by the continuing massacres of Aborigines despite the Myall Creek show trial.45 The role of the commissioners shows that, once again, an essentially judicial function was removed from the courts and handed to other officials. Practical land law was now a long way from the common law model. Despite Gipps’ claim that the Act only gave squatters permission from year to year to run animals on Crown land, the squatters believed that they had a right to stay on the land they developed. They now pressed for this to be made into formal law. They bought and sold their runs and built permanent houses on an assumption of some degree of permanence. In 1839 the Supreme Court held that the buyer of a run had enough title to be able to sue for trespass against a later arrival.46 Even this was not enough for the squatters, since their land could always be sold by the Crown and there was little certainty about the boundaries. After they survived the recession of the early 1840s, the squatters used the Legislative Council to press their demands for secure title. Gipps triggered an uproar when he proposed new regulations in 1844: the £10 fee would not be a flat fee but would cover only one run of a fixed maximum size. He also proposed that squatters should gradually be forced to buy their holdings, at 320 acres at each proposed eight-yearly renewal. These draft regulations were sent to London for approval, but its customary neglect of colonial matters resulted in contradictory signals until the issue was at last settled by imperial legislation. Eventually the squatters had their final victory in London: under the imperial British Waste Lands Occupation Act 1846 and an Order in Council of 1847, the governors were authorised to issue pastoral leases in the unsettled areas for up to fourteen years. Squatters also gained the right to buy their land at the end of the lease at its unimproved value, thus keeping the value of their own buildings and fences. They also had an uncontested right to buy it during the term of the lease, which gave them the security they had wanted. For now, the legislation meant that large squatters would tie up thousands of acres at minimal cost calculated by reference to the number of animals a run could support. As soon as the shape of the new law was announced, Robert Lowe complained that it grossly favoured the large squatters and compared their claims to highway robbery.47 After responsible government, the squatters 122

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had to resume their fight, when locally elected liberal governments allowed selectors to take some of the bush aristocrats’ land. In the meantime, they had proved that the repugnancy test was irrelevant to the most important question of Australian law.

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7

COLONIAL FREEDOM Law making between responsible government and 1900 COLONIAL FREEDOM

COLONIAL INDEPENDENCE The Colonial Laws Validity Act 1865 freed the colonial parliaments from the threat of having their Acts struck down on the ground that they conflicted with the general laws of England. It allowed them to adopt, change or ignore the bulk of English law, but they still operated within some imperial limits. Their laws could not operate beyond their territories, they had to be passed in accordance with their constitutions, and they could not contradict the paramount force statutes of imperial parliament. These limits were enforced by the courts, but they did not have much effect on the day-to-day operation of legal business. Royal assent replaced judicial review as the main imperial control over colonial legislation in the second half of the nineteenth century. Despite the creation of apparently independent and sovereign colonial parliaments, any laws they passed still had to receive the assent of the local governors and the queen in London. The governors were instructed to reserve some matters for assent in London, rather than giving it themselves. In reality, this meant that the British government controlled what it saw as sensitive areas of colonial law making, particularly divorce and immigration, as part of the division of powers between itself and the colonies. London continued to block laws passed by the Australian parliaments right up to the end of the century, long after universal white male suffrage was in force. Nevertheless, the increased independence of the colonial legislatures supported the continuation of Australian innovation on fundamental legal issues. An egalitarian but racially conscious ethos was expressed in new land laws, labour laws and immigration restrictions, which had no coun124

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terpart in England. In other areas, the Australian parliaments passed Acts that Britain copied decades later. As in other periods, however, internal constraints on innovation were as important as those imposed from outside. The colonial parliaments often merely copied new British statutes as they were passed. This impulse to copy English law came from more than a desire to be English or the idea that British is best. There was also a strong and pragmatic view that imperial trade would be assisted by uniform commercial law. Trading links led to the duplication of most, but not all, new British commercial law Acts, including statutes on partnership, sale of goods, bills of exchange and bills of sale. Some of these Acts codified the common law.1 Codification was a drastic attempt to alter the basic ad hoc approach of English law making, which had been in operation for centuries. Under the common law system, the basic laws are made by judges. Parliament has power to alter common law rules whenever it chooses to do so, but rarely attempts to displace them entirely. When Acts are amended, the changes are usually piled on top of previous Acts and common law rules, new added to old. Codification was based on the belief that it was possible and desirable to replace this vastly complex tapestry of the law with a rational, positive statement of the law. Scientific clarity was to replace the uncertain tradition of judge-made common law, according to the codifiers of latenineteenth-century England and Australia. Their aim was to make a complete statutory statement of the law. There was little to show for this movement in Australia. The most extensive attempt at codification was made in Victoria. Chief Justice Higinbotham of the Victorian Supreme Court worked on the consolidation of Victorian statutes in the 1880s, bringing together the complex bits and pieces of legislation that had been passed over time, but without attempting to displace the common law. He hoped that this would be the first step towards the true codification of the general law. Higinbotham supported the codification plans of William Hearn, Dean of the University of Melbourne’s Faculty of Law and a member of the Legislative Council. Hearn spent years on his vast project, attempting to write down the whole of the substantive law of Victoria, but he died in 1888 just as his code was gaining support in parliament. The legal profession opposed it, and it failed to become law. The codifiers had more success in the criminal law. The colonial parliaments deliberately kept the substance of Australian criminal law close to that of England, much as its practice differed. As new laws were passed in England, they were often adopted by the Australian legislatures.2 This began to change at the end of the century, when the rapid spread of liberal and progressive thought caused innovation to replace imitation. One example was legislation for the early release of prisoners, in which Massa125

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chusetts, New Zealand and Queensland led the common law world in introducing probation for criminal law offenders. Under the influence of Samuel Griffith, Queensland took a more drastic approach in 1901, when it passed its broad Criminal Code; Western Australia and eventually Tasmania joined it in codifying the criminal law. These codes were more than changes to the form of the law. Any attempt to write down common law rules must change them, when clarity, rationality and simplicity are designed to displace ambiguity, tradition and complexity. The criminal law codes did not include the drastic changes to legal language and classifications, which had caused opposition to Hearn’s code.3 Like chapter 6, this chapter concentrates on the differences between Australian and English law rather than their similarities, and on statutory rather than common law.

S E L E C T O R S A N D S P E C U L AT O R S A decade after the squatters finally obtained what they thought was secure title to their land, it was all put at risk again. Land law became the focus of vigorous election campaigns. The squatters’ hold on vast areas of Australia was threatened by the coming of white male democracy and by the mass desire for independence, which land ownership symbolised. Those who had purchased their land rather than simply taking it also resented the squatters, whose titles had been gained as much through political power as by payment. The end of their monopoly in the legislature was matched by calls for the end of their monopoly on vast areas of the countryside.4 The 1860 New South Wales election campaign was fought over land reform. The liberal government’s land bill had been defeated in parliament, so it took the issue to the people. John Robertson’s slogan was that ordinary people should be able to choose their own land, as the squatters had done. The reformers won a devastating election victory, but still the conservatives tried to block the change in the Legislative Council. This upper house was still a nominated body, the accustomed home of those who thought they had a right to rule. When its members tried to amend the land bill in the new parliament, Premier Cowper went to the governor to swamp it with new appointed members, who would let the legislation pass. William Burton, by now President of the Legislative Council, expressed his attachment to English standards once again; he claimed that although swamping of the upper house had British precedents, there was no case for it until a bill had been rejected once and was about to be rejected a second time. He and the majority of its members resigned, preventing the bill from being enacted. Cowper then made a conciliatory move, agreeing to a new conservative Legislative Council, on condition that it would pass the land legislation. The resulting Robertson land Acts of 18615 allowed the poor to obtain 126

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Crown land held by the squatters. The new laws provided that selectors, as they became known, were entitled to make a conditional purchase of from 40 to 320 acres per person; and if more than one person applied for the same block, there was a ballot between them. Buyers had to pay a 25 per cent deposit on the price of £1 per acre and had three years to pay the balance at 5 per cent interest, after which they obtained freehold title. They had to live on the land, were not allowed to sell it for twelve months, and had to improve it. If these conditions were broken, their claim to the land was forfeited. There was no need to have the land surveyed before selection, and the squatter had no right to receive notice that a selection was about to be made. This legislation led to bitter conflicts between squatters and selectors. The selectors wanted the best land, including access to water, and became known as cockatoos. Some of them bought land in the names of their children as well as themselves, erecting huts on each lot in which the family supposedly lived separately. The Supreme Court and Privy Council confirmed that this was lawful. Some selectors blackmailed the squatters into paying them off; after making their selections they harassed the squatters by impounding straying cattle, hoping that they would be bought out. The squatters had their own tactics to deal with these threats, including the use of dummy buyers to protect the most important parts of their runs. The dummy selector held the land for the minimum period, then sold it to the squatter. Mobile huts were moved from place to place to fool the inspectors into thinking that a selector had moved onto the land. Only about a third of the selections were made in good faith.6 When genuine selectors arrived on the squatters’ land, there were endless disputes over straying cattle, because there were few fences. Some conflicts were much more hostile, including false accusations of sexual crimes. Although the aim was to increase farming in New South Wales, the Acts did little to change the pastoral use of the colony’s land. Many selectors became small pastoralists by binding several claims together and running stock on their land. By the 1870s the squatters had largely nullified the Act by buying up land at auction. In fact, they lost only a small proportion of their land through the legislation. The Acts were not a complete failure, however, since they allowed thousands of small settlers to go onto the land. Some succeeded, but many failed when they found they had too little capital or their land was unsuitable or too small for successful agriculture. In John Hirst’s account of these events he describes the land Acts as ‘the most vicious attack on private enterprise in our history’. It was ‘not so much a policy as a licence to pillage’, he claims, in which the anarchy of the frontier was elevated into a principle of government.7 By the time of the selector Acts, the squatters had leases over their land, which were 127

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overridden by the new laws. Hirst claims that the land laws encouraged disputes and dishonesty, which is undoubtedly right. It is difficult to share Hirst’s sympathy for the squatters, as they achieved their tenure only through manipulation of their political power in the 1830s and 1840s. They had no great moral claim to the land, which they originally took without payment to anyone. The real attack on property rights was when they marched across Aboriginal land and established their runs regardless of the rights of those who had occupied it for thousands of years. Of course, the squatters were no more guilty of this than any other colonial land holder; the government was just as insensitive to Aboriginal holdings when it made its authorised grants of land. The weakness of the squatters’ case is that class privilege had been built into their leaseholds. A change to broader representation led to an abrupt change in that privilege, but not a permanent one. Money had its way in the end, when they managed to retain most of their land, although they were at last forced to buy at least some of it. The selection principle of conditional purchases on credit spread to the other colonies. These Acts varied from place to place, and not all of them aimed at taking land from squatters. When they did try to do that, class clashes followed as people crowded around the land offices that were opened in new areas, in Hamilton under Victoria’s Duffy Act, or in Yass or elsewhere around the country. Tasmania did not have large-scale squatting, but even it had legislation in the first years of the twentieth century for the compulsory purchase and redistribution of land to small settlers.8 The selector laws were peculiarly Australian Acts, which the Privy Council misunderstood. This led to an extraordinary attack on it by a New South Wales judge in 1890. Justice Windeyer complained that the Privy Council had upheld the actions of New South Wales squatters in using dummy selectors to subvert the policy of the land Act. The Queensland Act expressly prohibited this, while the New South Wales Act did not. The Privy Council thought that this difference in legislation was due to geographical differences between the two colonies. The New South Wales Act, they held, showed no intention of implicitly prohibiting these actions. In an angry response, Justice Windeyer attacked this decision as being based on ignorance of the basic geography of Australia and of the history of Australian land law. The Queensland Act, he said, was drafted later and had attempted to avoid the problems New South Wales was having with dummy selections. After the Privy Council decision, the New South Wales parliament amended the Act to correct the error and make clear that it intended to make dummy selection illegal. To avoid such blunders in the future, Windeyer called for the appointment of judges experienced in Australian law to sit on the Privy Council. He thought that while the 128

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Australian colonies remained part of the empire, appeals would have to continue to the Privy Council.9 They did so for many decades. The selectors seeped into Australia’s folklore. Through Steele Rudd’s Dad and Dave stories, they came to stand for cheerful impoverished independence. Henry Lawson, another selector’s son, found less to laugh about in their loneliness, lack of education and poverty.10 In Harry Heathcote of Gangoil, Anthony Trollope, whose son was a squatter, wrote about a clash between a squatter and a selector in Queensland which was romantically resolved after a bushfire. In it, Trollope emphasised the ambiguities of social class in the Australian bush. The main selector and squatter in the story were both well-educated British men, but the adjoining squatter, whose family are the villains of the book, was an emancipated convict, untrustworthy and uneducated. The earliest grants to emancipists in Sydney had been conditional on the land being worked, and these selector Acts returned to that policy, as they did to the idea of close settlement for agriculture. These basic notions of Australian law were repeated during the next great experiment in land law, when the governments placed returned First World War soldiers on the land. The soldier settlement schemes saw a repetition of the daily experiences of the nineteenth-century selectors—failures caused by inadequate skills, equipment and land—but some successes again. Australia had enough land to reward its soldiers, but the depression drove many of them back to the cities.11 Australian land law eventually developed a complex and unique variety of overlapping Crown leases for pastoral, mining, homestead and water purposes, so much so that one squatter looked back nostalgically on the simplicity of the £10 licence, when he was the only white person with a claim to the land. In England rights to water were, and still are, a jealously guarded form of private property, such as fishing rights. But in Victoria, inland water rights were effectively nationalised and parcelled out according to bureaucratic formulae.12 Australian land law eventually became as complex as English, a product of its own dry landscape, egalitarian values and neglect of Aboriginal interests. A U S T R A L I A’ S

GIFT TO BOURGEOIS LAND HOLDING

The Torrens system of land titles was a consequence not of the arid land, but of the uncertainties caused by speculation and sloppy land dealing; it was a monument to an egalitarian market-based approach to land ownership. In English law, land title was conveyed by collecting together documents of sale, mortgage and lease and passing them on to the buyer. This system should have worked easily in nineteenth-century Australia, where land titles could be traced back no more than a few generations to grants by the governors, but the colonists did not act so predictably. As 129

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shown in previous chapters, they sold land without written contracts, lost their Crown grant documents, gambled the land away, sold it for goods, and generally treated it as what they thought it was, just another form of property, sometimes valuable and sometimes not. The governors and legislatures tried to force registration of titles on sometimes reluctant populations, and the legislatures established officials to clarify Crown grants. These helped, but they did not guarantee the title to land.13 Adelaide became as much a place for land speculation and muddled titles as any other, when land jobbing overcame the high-minded principles of its founders. It was there that Robert Torrens gave his name to Australia’s legal gift to bourgeois land holding, the Torrens title. The uncertainties of title, high legal costs and hair splitting of English conveyancing all hindered the market in land. They were swept aside in Torrens’ dramatic reform. Under South Australia’s Real Property Act 1858, those who claimed to hold an interest in land could prove it to a government official. When they did so, they were issued with a certificate of title, conclusive proof of their rights. This government-guaranteed title was also included in all new land grants after the Act came into force. Titles were maintained at a central office, where subsequent sales and mortgages were registered. Some lawyers saw this as a challenge to their livelihood and basic way of thinking. In South Australia they lost their monopoly on conveyancing soon after the first Torrens Act came into force. Anti-lawyer sentiment meant that land transfers there were thrown open to land agents, who charged much lower fees than lawyers. The assumption was that a simple system did not need the arcane learning of the legal profession. Justice Boothby characteristically declared that the new system was repugnant to English law, but his dismissal and the Colonial Laws Validity Act disposed of that argument. The Torrens system was soon copied by the other colonies and spread beyond Australia. What did not spread so easily was the loss of the lawyers’ monopoly on conveyancing. New South Wales, for instance, waited until the 1990s before permanently legalising land agents. The simplicity of the basic principle underlying Torrens title conflicted with the intricacy of traditional legal reasoning, and the courts nibbled away at the central notion of an indefeasible title. What began simply was gradually made more complex by the judges. As well, nineteenth-century conservatives saw the Torrens system as more than a break from English law. It was a challenge to their self-perceptions of Englishness and of a stratified society based on land holding. The legal profession in England was attacking similar proposals there. A registered title Act was passed there in 1862, but it did not require compulsory registration and only a truly sound title could be registered. This left many complex and uncertain titles as they had always been, subject to the old conveyancing rules.14 Despite attacks on it, the fundamental basis of the Torrens system 130

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remained intact in the Australian colonies, because it was so well suited to a speculative market in land and to the egalitarian attitude to property owning that prevailed here. English notions of the political and social significance of land were 12 000 miles away.

GOLD AND DEMOCRACY The bloody attack on the diggers of the Eureka stockade in December 1854 was the most dramatic expression of the clash between official and popular perceptions of law in Australian history.15 What began as a rejection of a clumsy licensing scheme, escalated into mass meetings by thousands of English, Irish, European and American miners, demands for political representation and the end of the squatters’ monopoly on land, the deaths of more than twenty diggers after a military attack on a fortified position, a declaration of martial law, the unsuccessful prosecution of thirteen surviving diggers for high treason, and the introduction of a new system of mining law. The mining law that provoked these events was similar to the old licensing system for squatters prior to the introduction of pastoral leases. Most gold was found on Crown land, and even if it had not been, it would have been the property of the Crown at common law. The proclamation of the new colony of Victoria in 1851 was followed almost immediately by the realisation of the vastness of its gold reserves. The rush for gold was on a much larger scale than the race for grazing land over the previous twenty years. Determined to avoid the perceived lawlessness of the Californian gold fields, the governments in New South Wales and Victoria established a licence system, under which the diggers paid a monthly fee for the right to work a small claim. This was enforced by goldfields commissioners, who hunted for unlicensed diggers. The system worked relatively smoothly in New South Wales, where the commissioners had the assistance of a small specialist police force and could rely on established towns and administrative structures. They did not face the vast numbers who collected at the Victorian fields, but they also took care not to alienate the diggers unnecessarily. There were some protests about the licence fee and its enforcement in New South Wales, but nothing like the drama in Victoria.16 In Victoria the diggers objected to the arbitrary application of the same fee to unsuccessful as well as successful diggers and to the use of police and eventually troops to enforce the licence rule. Unlicensed diggers were chased by ex-convict policemen, who sometimes chained them to trees overnight. These complaints were exacerbated in Ballarat by corruption, a loss of faith in the commissioners’ claim-jumping decisions, a bungled attempt to cover up the killing of a digger, and the actions of officials who were determined that they were in charge, not the diggers. The official 131

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view in Victoria was that the law was to be obeyed, and when it was not, more and more force would be applied until opposition was crushed. Most of the diggers were democrats but not republicans. At meeting after meeting, they called for what they thought were the traditional rights of free British subjects, no taxation without representation of the people, wholesome laws and honest government. Once again, the people of colonial Australia appealed to what they called British rights, while making claims that had no actual parallel in English experience. The diggers rarely relied explicitly on republican principles, and even when they did they sometimes put them conditionally; the members of the Ballarat Reform League said in 1854 that they would remain faithful to the queen if there were a change to obnoxious laws and dishonest ministers. If there were no change, they would endeavour to supersede the royal prerogative and assert that of the people, who were ‘the only legitimate source of all political power’.17 The League composed a democratic document and a conditionally republican one, but it was not based on collective values. The diggers stood for the right of all men to be free to make their own money—the white male egalitarian claim to wealth and liberty. The miners had that in common with the emancipists whose debates had been so important twenty years earlier. The diggers’ position was an essentially liberal one, but it was also based on the right of all human beings to dignity. The Melbourne juries who found the thirteen diggers not guilty of high treason for their actions at Eureka implicitly found that the authoritarian system of law making and law enforcement was to blame for the events there. They rejected Governor Hotham’s stern view that people were obliged to obey the law even when they thought it was arbitrary and unjust. The military rout of Ballarat’s diggers at Eureka led to their political victory; the old authoritarian system, including the domination of the Legislative Council by the squatters, was eroded even before the commencement of responsible government in 1856. By losing the battle, the diggers won their case. After Eureka, the diggers won representation in the Legislative Council, and one of its last actions before responsible government was established in Victoria was to create a new mining law. New South Wales had given the old licence model to Victoria, and now a new Victorian approach, influenced by the events at Eureka, took its place as a model for other colonies. Although its most radical features were soon dropped, its essential notions were adopted in all Australian colonies and remained long-term features of mining law. Instead of a ‘licence’, which implied permission, the 1855 Act required diggers to purchase a ‘right’ to look for gold. The fee was much lower than the hated licence, and an export tax was imposed on gold, which meant that the most successful miners paid the most. Under the old system, the hated and arbitrary goldfields commissioners had settled 132

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civil disputes about claims and had imposed fines for unlicensed digging, a role they had shared with paid magistrates. They were now replaced by local courts, which had both judicial and legislative powers when they made and enforced the mining rules in each area. This was a new voice for popular law making, but one that confused two roles which were usually kept well apart. Remarkably, the legislation provided for the election of most of the members of the new local courts. Each court under the 1855 Act18 consisted of a chairman appointed by the government plus nine people elected by the miners. At least five of them had to be holders of a Miner’s Right. The notion of an elected judiciary was a deep rejection of English principle, showing how far Hotham’s authoritarian view had been rebuffed. This was an idea from America, where it is still possible to see signs urging people to ‘elect John Doe judge; he was a tough D.A. and will be a tough judge’. The structure of the new Victorian mining law was not modelled on America, however, any more than it was copied from England. Even though the radical 1855 Act was passed before the coming of responsible government, there were no serious challenges to it on the ground that it was repugnant to English law. As in so many other areas, repugnancy was only one of a number of considerations in deciding whether an Act passed by a colonial Legislative Council would be allowed to stand. Here, the extreme political situation swept aside any such notions. The use of elected officials in the Victorian local courts lasted only two years, after which they were replaced by a more familiar structure. Robin Sharwood says that there were many reasons for their abolition after such a short period, including miner apathy, the curious method of election, faction fighting, disputes over the admission of lawyers, jurisdictional confusion, charges of corruption, inconsistent regulations, and a concern that the legal questions the courts had to decide were too complex for lay tribunals. Even Peter Lalor, one of the miners’ leaders at Eureka, came to speak against the election of the court members, claiming, inaccurately, that it was on the way out in America. Another member of parliament claimed that it was the election of the judiciary that caused people to claim the local courts were partial. The new Victorian parliament abolished the local courts by statute in 1857 and replaced them with a modified judicial and legislative structure. Under the 1857 Act, legislative powers were granted to mining boards, while judicial power was given to new Courts of Mines. Elected bodies continued to create local laws, which was the legacy of Eureka, but dispute judging was now seen to be too important for elected amateurs. The Courts of Mines were headed by professional lawyers, and legal representation was allowed, as was an appeal to the Supreme Court. After only two years, lawyers were put back in their accustomed position, at the head of an 133

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important area of law. In 1865 this Act was replaced by the Mining Statute, which kept the idea of special Courts of Mines under professional judges and, like the later squatters’ legislation, relied on the notion of mining leases on Crown lands. This was a uniform law across Victoria, a consolidation of the local customs that had been passed by the mining boards as by-laws.19

C O R P O R AT E C R A S H E S Until the middle of the nineteenth century, companies had to be created one by one, either by the Crown or by legislation. The British parliament then introduced the notion of a general law allowing companies to be formed simply by registration, culminating in the Companies Act 1862. The underlying principle was the liberal right of freedom of association, backed by limited liability. These Acts created a right to form companies under which shareholders were liable only to the extent of the amount paid or due for their shares. If individuals could be declared bankrupt and discharged from their debts, so would shareholders be liable in only a limited way for their companies’ debts. This principle was subject to a concern about fraud and business morality, but the measures to prevent this were subject to frequent debate; there was no serious attempt at government regulation of the new companies. The legislation was laissez faire in concept and administration, just as the underlying ideology of nineteenth-century contract law was based on a notion of commercial freedom.20 The Australian colonial legislatures copied the British Companies Act as part of their duplication of most of England’s commercial law but soon made changes to it. The major Australian innovation in company law was the Victorian parliament’s invention of the no liability mining company. This was based on the belief that the British statute did not suit the speculative nature of the Australian mining industry. In order to encourage investors, the Victorian Companies (Mining) Act 1871 allowed shareholders of mining companies to avoid liability even to the extent of their shares, and the principle was soon copied by the other colonies. If an ordinary company became insolvent, its shareholders had to contribute up to the value of their shares. That is, if five shillings were still unpaid on a £1 share, its owner had to pay it when the company was wound up. Under the new Victorian law, the investor could walk away from a no liability company, having lost only what he or she had already paid on the shares. This principle briefly applied to other kinds of companies but was mostly confined to miners. In fact, people had often been avoiding liability by using false names. Regulatory structures were too weak to prevent dummy holdings, particularly in Victoria.21 The next major change occurred after the long economic boom ended 134

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in the crash of the 1890s. There were sensational failures among Victorian land speculation companies when land prices suddenly dropped. These collapses spread to other industries, including all but one of the banks that had their head offices in Melbourne. That city lost a tenth of its population during the depression. Laxity of company regulation, the absence of adequate reporting and the disdain of company officials towards shareholders were all implicated in the great crash, and the Victorian parliament reacted by making detailed amendments to company law. Some of the new regulations were copied from England, where there was a similar panic at this time, but other provisions in the legislation came from elsewhere in the empire or were locally invented. The new policy was partly a reversal of the previous laissez faire approach, as the legislation tightened the obligations of companies. The 1896 Victorian Companies Act was the strictest in the empire for a time, foreshadowing later reforms in England and the rest of Australia. Some of its most stringent clauses were removed in the Legislative Council, however, which some people thought was merely a club of company directors, out to protect themselves.22 Tighter laws mean very little unless they are enforced, and this weakness of nineteenth-century company law continued into the twentieth. Even after the 1896 Act there was a persistent feeling that company law was primarily aimed to facilitate companies, not to regulate them. Rob McQueen argues that the failure to develop a genuine local system of company law and administration has been a recurring theme since 1862, and the cause of continuing problems in this area. At no time was the law adapted to local business conditions. Nor was there any resolution of the contradiction between the laissez faire heart of company law and the notion of regulation.23 The British companies legislation, although unsuitable to Australian conditions and incoherent in its aims, operated as a model for the company law of the colonies and thus worked towards something approaching consistency across the empire. Federation raised the possibility of a single national law, but that was lost when the High Court gave a narrow interpretation to the new Australian commonwealth’s corporations power in the Huddart Parker case in 1909. From that time, uniformity would be achieved only through co-operation between the states and the commonwealth.24

D A N G E R O N T H E R A I LW A Y S English and American railways were privately owned and funded throughout the nineteenth century, but there was no successful large-scale non-government investment in the railways of Australia. Not even laissez faire company laws were enough to encourage the private development of these vast infrastructural projects in such a sparsely populated continent. 135

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Instead, the belief that the railways would bring civilisation to the bush led each of the Australian colonial governments to take the gamble of building them. This did not prevent the madness of conflicting gauges, however, which still haunt us more than a century after the trains first began running. The difference between government and private ownership of railways is likely to have had an effect in law. Much of the tort law of nineteenthcentury America and England was a product of the legal conflict between railway companies and those who were injured by trains. This has been the source of some of the richest and most interesting American legal history. Historians there have traced the effect of railway accidents on laws such as the fellow servant rule, contributory negligence and liability for death. One theory has it that the judiciary developed all of these antiplaintiff laws in order to protect large industries such as railways from personal injury claims. Other historians reply that there were much more benign influences on the development of American tort law.25 We should not assume that the same forces were at work in Australia, where there was not the same tension between laissez faire attitudes to the railway business, general economic development and compensation for injured workers and passengers. In the Australian colonies, legal conflict was between injured people and the governments’ own railways. Plaintiffs here had to contend with the Crown immunity doctrine under which the government was exempt from legal action, but railway management was delegated to statutory boards, which were far removed from the British model of ministerial responsibility. We should not be surprised if there were unique attitudes to the tort liability of the governments’ railways (although this is yet to be studied extensively).26 There are tantalising hints that the tort defences were not used harshly against victims of railway accidents in Australia. In one New South Wales case in 1863, the Commissioner for Railways denied liability to an injured passenger on the ground that she had been careless for her own safety when she stepped off a moving train. Contributory negligence was a complete defence if the defendant could prove that the plaintiff was even partly at fault in the accident. The New South Wales court did not reject this defence in principle, but it allowed the passenger to obtain damages in any event. It held that although her train failed to come to a complete stop at a station, the station master in effect had invited passengers to get out. The court found that although ‘the plaintiff was guilty of some incaution and imprudence’, it was to such a slight degree that she should not lose her right to damages.27 This suggests that the English law was adopted, but not applied strictly. The other harsh nineteenth-century common law rules were that defendants were not liable for damages when they killed someone, and the fellow 136

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servant rule under which employers were not liable for injury done to one of their employees caused by the negligence of a fellow employee. It seems that these rules were not adopted in their entirety in Australia. According to the New South Wales Railways Commissioner in 1877, the English companies relied strictly on the fellow servant rule, preventing injured workers from suing the railway itself. The commissioner said that this law was ‘undoubtedly harsh’ and noted that a Royal Commission had recommended it be changed. He also said that injured workers should have been compensated even if they had been careless about their own safety. Their lack of care was often due to their zeal to get on with railway work, he said. As a matter of fact, despite these common law rules, railway workers and their families in New South Wales were treated well. The Railway Commissioner reported that parliament’s practice was to compensate those affected by death or injury on railway work. The New South Wales government may have been running a business, but it does not seem to have acted like a robber baron. Other employers were less generous; they relied on the fellow servant rule until its abolition in England in 1880 was followed in the Australian colonies.28 Victoria may have been less generous towards government employees. Its Board of Land and Works successfully used the fellow servant defence in an action brought by an injured engine driver, for example. In dissent, Justice Higinbotham found that although he was bound to follow the rule, there was a way around it on the facts. He said that he was ‘unable to discover on what rational and just principle this rule is founded’.29 There are many more cases to read on this topic before any final conclusions can be drawn. Nineteenth-century Australian common law is largely unknown to legal historians.

THE RIGHTS OF WOMEN DOUBLE

S TA N D A R D S I N D I V O R C E

The British government did not allow divorce in the Australian colonies until 1858, when it granted them the reluctant permission an overprotective parent might give to a child. In that year Lord Stanley, the Secretary of State for the Colonies, told the governors of the Australian colonies that they should invite the colonial parliaments to copy the new English divorce law. Until the Matrimonial Causes Act 1857, divorce in England required a private Act of parliament. This had been the essence of wealthy male privilege, since few women initiated the process and it was so expensive. Divorce a mensa et thoro had also been available through the Ecclesiastical Courts in England, but it was merely a form of judicial separation, which did not allow remarriage. The new Act authorised the civil courts to 137

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dissolve marriages, but only on familiar English grounds: a husband merely had to show adultery by his wife, but a wife had to prove adultery plus a further ground, such as cruelty. This official double standard was rationalised on grounds such as the supposed insatiability of male sexual appetites and a corresponding lack of passion among women, and the possibility of adultery by a wife introducing a false heir. The assumption was that property rights were at risk when women engaged in adultery, whereas their husbands could be trusted to do so discreetly with prostitutes or lower-class women without endangering inheritance. The effect of the Act was to extend the rich man’s right to rid himself of an unwanted wife, to those of merely moderate wealth.30 At the time of the foundation of the Australian colonies, their courts were given no power over divorce, separation or maintenance of deserted wives, although the magistrates made maintenance orders during the frontier period in New South Wales in any event. In 1853 Wentworth introduced a private Bill into the New South Wales Legislative Council for the dissolution of one marriage, which eventually received London’s assent.31 The 1858 invitation to copy English law, hardly an imperial statement of independence, was the first time in which London relented on the general principle. The South Australian parliament acted very quickly, passing its own divorce Act on the English model before the end of 1858. This was not the beginning of innovation on these issues by Adelaide. Catholic clerics there led a petition of 40 000 opposed to further liberalisation, and South Australia did not act to equalise access to divorce on the ground of adultery until 1918. Queensland was even slower to end the official double standard; its English-style Act was passed in 1864, and there was no major amendment until 1923, the same year in which England allowed women to divorce on the sole ground of adultery.32 The British government intervened whenever the colonies went beyond the English divorce legislation. Even after the passage of the Colonial Laws Validity Act 1865, with its apparent charter of independence for the Australian legislatures, the Colonial Office in London felt that it had a right to veto their divorce laws. It was still dabbling in them near the end of the nineteenth century, when there were heated exchanges in which the divorce reform debate was reinforced by arguments about colonial independence. Even the conservative New South Wales Legislative Council joined in a virtual vote of censure against the Colonial Office for its refusal to give assent to colonial laws on this topic.33 In 1860 the Victorian parliament passed a divorce Act, which not only allowed formal male and female equality of access to divorce, but did so on the ground of desertion for four years. This did not become a ground for divorce in England until 1937. Desertion was rife in gold-mad Victoria, 138

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and the English notion of poor relief was never imported, so many families were destitute. Some of the Act’s supporters stressed Victoria’s innovation on the issues of secret ballot and manhood suffrage and saw this divorce law as another example of Victoria offering a lead to the mother country. Others placed a comforting reliance on Scottish precedent, where there had been divorce on the ground of desertion since the Reformation. Lord Stanley’s instruction to the governors told them to reserve divorce bills for assent in London. The queen refused her assent to the 1860 Act, and the Victorian parliament caved in. It passed another Act in 1861, which was based on England’s. The double standard remained until 1890, when the Colonial Office at last gave way.34 There was no New South Wales divorce Act until 1873, nine years after any other Australian colony. According to Hilary Golder,35 the members of the Legislative Assembly at this time were political liberals and social conservatives. Most of the successful politicians refused to have anything to do with divorce law reform, some feeling that marriage was a source of social cohesion, which it was dangerous to loosen so soon after the end of convict transportation. New South Wales passed a new law on the property rights of deserted wives in 1858, soon after Stanley’s dispatch arrived, and this Act seriously weakened the case for the introduction of divorce. The first divorce bill was introduced into the New South Wales parliament in 1861, and there were 34 more by 1893. The government opposed the first bill, and from that time the impetus for reform had to be carried by private members, particularly the anti-Catholic David Buchanan. He continually stressed equality of access to divorce, but the Legislative Council blocked his bills. In the end, the 1873 Act became law, modelled on the English double standard. Buchanan had failed to convince the parliament to lead the way in an attempt to elevate women to an exact equality with man in the eye of the law, a thing British law had never yet done, but on the contrary, in all its dealings with woman, has treated her with an injustice which is founded on feudal barbarism and that wretched vassalage, the spirit of which animates certain orders in England to this day.36

New South Wales eventually passed the first law based on equal access to divorce, but only on the ground of adultery, not desertion. The reform campaign commenced as soon as the 1873 Act became law. Three bills passed both houses of the New South Wales parliament but were blocked by the refusal of royal assent in London. The British government wanted uniformity throughout the empire; it did not want to see people running from place to place in search of divorces, and it was concerned that New South Wales divorces might not be recognised elsewhere in the empire. Nor did it consider that the colonies could provide a model for the divorce law of the empire. 139

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Colonial radicalism was fired up with each refusal of assent, and eventually the Colonial Office relented. It allowed the 1881 Act to become law, but only for those whose domicile was in New South Wales. Domicile required more than presence in the colony, but a determination to live there. It operated especially harshly on women whose husbands left them. At common law, a married woman’s domicile was determined by that of her husband, and when his domicile was unknown she could not obtain a divorce under the New South Wales Act. Although the 1881 New South Wales Act cast off the official double standard, in practice it did little for women. Even under it, their petitions for divorce still stressed the cruelty of their husbands as well as their adultery; women were presented as passive victims, rather like Dickensian heroines. The real problem was desertion, and the real obstacle to divorce was money. Women had to be sure that they could afford to live independently before they would go through with it. In effect divorce was restricted to those who were supported by their families or who had paid employment.37 Women frequently abandoned their divorce petitions even when they had very strong cases. In one Victorian case, a woman presented a petition in 1870 on the ground of adultery and cruelty. Her husband had engaged in sexual intercourse with the family servants and had even tried to do so in the presence of his wife on one occasion. He had bashed her, kicked her and dragged her around behind a horse. Still she delayed acting, saying that she did not want to die in an asylum and have her children rot in orphanage schools. Eventually she lodged a divorce petition, but withdrew it when he settled an income on her and promised to reform. He quickly broke his promise, and she lodged but then withdrew another petition.38 This was an extreme case, but it makes the point about the pervasive problem of unequal access to money. Divorce on the ground of desertion finally became law in Victoria in 1890, followed by New South Wales in 1892. Once again the Colonial Office held up the process of reform by refusing royal assent. The main campaigner in New South Wales was now the aging ex-Chief Justice Alfred Stephen. This crusade was run by liberal men rather than women. There were organised groups of feminists by the late 1880s, but they were fighting for the vote, not for extended divorce laws. Louisa Lawson supported divorce law reform, but many other feminists opposed it, feeling that easier divorce would harm the position of vulnerable women. Under the 1890 and 1892 Acts, Victoria and New South Wales had the most liberal divorce laws in the empire, almost 50 years in advance of England. As in other reforms in which Australia led the way for England, the explanation lies partly in the entrenched power of conservatives in Britain. In this case, the Church of England, with its official representation 140

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in the House of Lords, led the opposition to reform. In Australia, where there has never been an established church, the church position was fragmented as the leaders of the various religions made contradictory arguments. The 1890 and 1892 reforms led to an immediate sharp increase in the divorce rate. Divorce came to be used more by women, and it was no longer a law just for the middle and upper classes. The next important change was not until 1975, when the Family Law Act cast aside the fault-based system entirely, repealing the first commonwealth Act of 1959.39 This does not mean that women were eternally passive victims of male violence and power. An article by Bridget Brooklyn shows us the way in which South Australian women used the law, whether as petitioners or as respondents in divorce actions, to rid themselves of unwanted husbands. This sometimes required a degree of play acting to conform to male expectations. She reminds us that it is necessary to look beyond strict statements of law and beyond the meek images which the judges required women to adopt. Like female convicts and Aborigines of both sexes, it is inaccurate to cast nineteenth-century wives as passive objects without self-defined rights. Brooklyn’s argument is important for feminist scholarship and for the history of law generally. Like only a few other writers, she points out the subtlety of the role of law, and the inadequacy of seeing it as no more than an expression of dominant power.40 P ROP ERTY

AND THE VOTE

Australian women were heavily involved in the campaign for female franchise and property rights. According to the common law, women lost most of their independent legal rights on marriage; their goods and leasehold land became the property of their husbands, as did the income from their freehold land. The South Australian Attorney-General reminded his parliament that the combined effect of this rule and the double standard in divorce was that a husband could lavish his wife’s personal fortune on his mistress, and there was nothing his wife could do about it.41 As chapter 3 shows, these restrictions on married women were not closely followed in the frontier period in New South Wales. The judges of the later colonial Supreme Courts were much less likely to allow such looseness with English law, however. In their view, it was parliament’s role to change the law on this issue, not theirs. At common law, while a husband gained his new wife’s property, he also owed duties to her, the most important of which was the obligation to provide for his wife before and after his death. This was recognised in the law of dower. When a man died, his wife had a dower right to a life interest in a third of any freehold land he had held during the marriage. She could 141

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take this regardless of the provisions of his will, and regardless of the rights of any later holder of the land.42 The notion of dower was eroded by liberal ideas of property. Even in seventeenth-century England, with its traditional attachment to settled landed estates, dower was avoided by complex conveyancing and by terms in the marriage settlements of the wealthy. When a market developed in land, dower came to be seen as an unnecessary restriction on clear legal titles. By 1800 it was almost universally avoided in practice, although it remained part of the law. The law of succession of deceased estates absorbed eighteenth-century liberal property ideas, the absolute right of property owners to deal with it as they wished. On this basis, people spoke of ‘testamentary freedom’, the right to leave property by will to whomever the deceased person wished. This universalising language ignored the fact that married women had very few property rights; testamentary freedom meant freedom for men alone. The gradual destruction of dower was, from the woman’s perspective, the gradual abolition of the husband’s duty to maintain his wife after his death and the slow loss of the wife’s minimal property rights. Once dower was avoided or abolished, she could challenge her husband’s will only on the grounds of his insanity or that undue influence had been placed on him at the time he made the will.43 Land in Australia never had the aristocratic character that developed over centuries in England, so there were fewer obstacles to the abolition of dower here. Governor Macquarie proclaimed in 1819 that married women could forfeit their dower right, which was confirmed by a local Act in 1825. Under these provisions there had to be an independent examination of the woman before this took effect; as usual, a man looked after the woman’s interest. A Royal Commission in England led to the Dower Act of 1833, which placed the fate of dower solely in the hands of the husband without abolishing it completely. In 1836 this was adopted by statute in New South Wales. Under it, husbands were subject to an expectation that they would look after their widows, but they no longer had a legal obligation to do so. Another New South Wales Act of 1850 restricted dower even further, by stating that it would not take effect if the woman had not lived in the colony when her husband owned the land and if the buyer of the land did not know about her. England did not have a law of this kind. The next step towards the abolition of dower was the creation of the Torrens system of land title registration. The two were in complete conflict, one an old hidden right and the other based on clarity of legal title. The Torrens legislation destroyed the dower interest in each piece of land as it was registered. This was essentially a conflict about the meaning of property—market-based liberalism versus the ancient right of women to 142

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compensation for the loss of their property rights on marriage. New South Wales took the final step of abolishing dower in 1890, 35 years before England. The impetus for the introduction of married women’s property rights came from America, from where it spread to England and then to Australia.44 Vast petitions by English women supported change, as did the case of Caroline Norton, whose husband took both her children and her independent income as an author. The British parliament passed the Married Women’s Property Act in 1870, but it was limited in the range of property rights it allowed to wives: they could keep their earnings and investment income during the marriage. Conservatives had made only a minimal concession until a broader Act was passed in 1882. Like divorce, these Acts passed on benefits, which the rich had long enjoyed, to the rest of society. Victoria quickly followed the lead of the 1870 English Married Women’s Property Act, but Higinbotham’s Victorian Act of 1870 went much further; it copied some of the provisions from a broader bill, which had not been enacted in England. This innovation was lost when England reformed its own Act in 1882, and Victoria then fell into line with the broader English law. Once again, the conservatism of England had held up a law, which was then passed in Australia, but when the English reform was completed the Australian parliament was willing to meekly follow England. For much of the nineteenth century, most married women had no dower rights and no right to hold property. Nothing else so clearly indicates their legal subordination. MALE

D I S C R E T I O N A N D T H E L O S S O F M A N LY

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Formal equality of property rights between husbands and wives meant little when men alone had practical access to money and property. Even after the married women’s property reforms were passed, late-nineteenth-century wives were more dependent than many married women in the penal colonies who had held liquor licences and acted in partnership with their husbands. The formal changes to their property rights meant little to women who followed the passive expectation of female lives at the end of the century. Their husbands controlled the family income, while the abolition of dower symbolised the end of any limits on male property holders. Men could reward good wives and punish bad ones in their wills, but there was no way of ensuring even this reward for virtue. Women campaigned to change this in America, England, New Zealand and Australia. Their aim this time was not formal equality, but a return to a discretionary version of the dower interest. The testator’s family maintenance legislation which they fought for 143

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allowed one man, a judge, to test whether another, the husband, had left adequate property for his wife and children in his will.45 By the end of the century, testamentary freedom, with its connotations of liberty, came to be seen as the man’s right to neglect his family. A new form of liberalism was at work in the second half of the century, under which hard laissez faire property rights began to be restricted, and the testators’ legislation was part of this change. Australian feminists focussed their campaigns on the right of women to vote for parliament, which became law in South Australia in 1895. In the English-speaking world, only New Zealand, Wyoming and Colorado passed this law before then. South Australia did not simply copy the New Zealand law of 1894. Its feminists had been working for this since the 1880s, and there were six unsuccessful bills from 1886 before it was finally passed in South Australia. By 1908 white women had the vote for all Australian state and federal parliaments, but Aboriginal men and women were excluded in some states for several more decades. Women did not get the vote in Britain until 1918. Fortunately or not, John Madden, the Victorian Chief Justice, was wrong in his prediction in 1895 that female suffrage would abolish soldiers, war, racing, hunting, football, cricket and all manly games. It did affect men’s absolute right to household property, however, which was just as important as cricket.46 The new testator’s family maintenance law was largely the result of feminist agitation. New Zealand passed the first Act of this kind in 1900, followed by Australia and then England. Female suffrage had a decisive effect on this campaign. Testators’ bills were introduced soon after the first elections in which women voted, but there was still a long delay in New South Wales. Female suffrage came into force there in 1902, and the testators’ family maintenance legislation was not passed until 1916. English women had to wait even longer, until 1938. The testators’ legislation was based on the recognition that formal equality of property rights did little for women in practice. In effect, though, it was a return to paternalism, under which a male judge was put in the position of a new just and wise husband and father. This law did not challenge the moral framework under which only deserving women had a right to family property, nor was it much of a restriction on the ultimate control of women by men. The right that women lost with the abolition of dower was returned as a new form of paternalist discretion.

A N E W P R O V I N C E F O R L AW A N D O R D E R At the end of the nineteenth century and beginning of the twentieth, New Zealand and Australia led the world in creating new structures for the settlement of labour disputes.47 They have become a permanent distinctive feature of Australian law, despite regular attacks from late-twentieth-cen144

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tury politicians. Some current conservative politicians wish to return to what they see as a golden age, when laissez faire contract law governed the relationship between workers and their employers. Theirs is a mythical past, since the paternalism of the master and servant laws overlapped with compulsory arbitration. The law that governed the sale of fish and chips was never applied in its full harshness to the employment of white people in Australia. Industrial laws enacted from the 1890s onwards were partly the result of the vast maritime, mining and shearing disputes at that time. These conflicts, which occurred during one of Australia’s deepest economic depressions, were of an unprecedented scale. Woolsheds were burnt, martial law declared and troops sent in against the workers. Although they had the vote by then, workers saw their elected governments use the full power of the law to crush them. Force is sometimes self-defeating, when liberal opinion turns against its use and seeks a different method to resolve disputes. According to a young Bob Hawke, the workers also discovered during these conflicts that they had to go beyond the simple coercion of strikes, and seek political representation. One result of this was the new arbitration system, the new province for law and order, as Justice Higgins put it.48 The legislatures established special courts and tribunals to hear industrial disputes, either by conciliation (where the object is to reach an agreement between the parties) or by arbitration (in which the person hearing the dispute makes an order to resolve it). Under this system, industrial conflicts were settled compulsorily, a term that has several meanings: the compulsory use of the procedure against the parties’ consent; the commencement of the procedure without the consent of one or both of the parties; awards that are binding on the parties; and a ban on industrial action such as strikes and lock-outs. The legislation was also based on the collective principle; it dealt with disputes between registered trade unions and registered employers’ organisations, rather than conflicts between individuals. Agreements between employers and unions could also be registered, after which they were enforceable. Instead of being imprisoned, union leaders became part of a state-sponsored system of ensuring industrial peace. The radical politician Charles Kingston introduced the model for this legislation in a South Australian bill in 1890. He declared that ‘I wish to be classed as a State Socialist—as one who recognises that it is right for the State to interfere for the good of society’.49 A version of his bill was finally enacted in 1894, but it remained a dead letter because it did not compel unions and employer groups to register. There had also been earlier Acts, such as those in New South Wales and Victoria in 1892, but they lacked the compulsory features of the complete industrial legislation.50 New Zealand passed its conciliation and arbitration law in 1894, followed 145

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by Western Australia and New South Wales between 1900 and 1902. Charles Kingston also won a difficult campaign to include the conciliation and arbitration of interstate labour disputes in the powers of the new commonwealth parliament. Its first conciliation and arbitration Act was passed in 1904. There were English precedents for some of these provisions. Its magistrates had engaged in wage fixing for centuries, but this became obsolete. English law had also used conciliation and arbitration for labour disputes during the eighteenth century, based, like the new Australian laws, on a judicial tribunal acting according to equity and fairness rather than strict law. Laissez faire impulses from 1800 led the British parliament to remove the compulsory elements from its labour law as the nineteenth century progressed. In one sense, then, the Australian experiment was a rediscovery of old British principles which had been abandoned there. Nor was there anything new or uniquely Australian about the use of lawyers to settle labour conflicts. The collective principle in the Australian legislation was new, however, as was the broad system of compulsory industrial dispute resolution. Lawyers were now in charge of the whole dialogue of industrial relations, not just individual disputes. The state came to represent the public, and its judicial officers supplied a perceived impartiality.51 The departure from a fading British model of labour law can be traced to important differences between the economies and political structures of Britain and those of Australia. In these laws, the democratic tradition of Australia was combined with a much more interventionist state than in Britain. Australian colonial governments distributed land, supplied labour, suppressed Aboriginal attacks and built the railways. This meant that Australia was open to new liberal state-interventionist policies, which also led to other social reforms at the end of the nineteenth century, such as unemployment benefits, restricted working hours and factory regulations.52 As shown earlier, Australian railway managers were apparently less punitive towards their workers than in Britain. This, the arbitration system and other interventionist industrial laws may be part of a broader pattern. It seems that the whole notion of enforcing individualist laissez faire policies through state law was more rampant in Britain than Australia during the nineteenth century, but our knowledge is incomplete. This is a rich subject for future study. We need to examine contract law, industrial law, and the law of torts within a context of differing economic conditions and different attitudes to egalitarianism and state intervention. The parliaments intended to create a new approach to labour law, but there was tension between the new tribunals and the courts. The New South Wales Supreme Court was generally hostile to the notion of industrial arbitration. B. R. Wise, who pushed one arbitration Act through 146

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parliament, envisaged it as independent of the ordinary courts. His aim was to correct the anti-labour orientation of the common law; the industrial courts would operate according to ‘equity and good conscience’. Although the legislation was designed to avoid appeals to the Supreme Court, its judges found a way to intervene. As they often do, they narrowly interpreted legislation that interfered with common law rights. This forced the unions to take legal advice, and narrowed the scope of industrial debate down to legal questions. Judicial hostility to state and federal labour law has been a continuing problem in the twentieth century.53 These attacks by the courts did not kill off the arbitration system, however. In 1907 Justice Higgins, the President of the federal Arbitration Court and a High Court justice, made the famous Harvester decision: he held that a ‘fair and reasonable’ wage should be enough for an unskilled worker to support himself, a wife and three children in a frugal level of comfort. This decision became the basis of a minimum national wage, the basic wage. It rejected the values of the market place, the belief that contract law alone should govern employment. This family wage concept was based on a notion of differential needs for men and women, however, and it was not until 60 years later that the Arbitration Court finally decided that men and women should receive equal pay for equal work.54 Like many other formal statements of equality, this was not matched by immediate equality in practice. Traditional women’s occupations, such as teaching infants and nursing, are still paid less than equally skilled occupations that are dominated by men. Females’ average earnings are still below those of males.

R A C I A L A T T I T U D E S E N S H R I N E D I N L AW The history of Australia’s racial attitudes can be read in its law. The passions and racism of events such as the anti-Chinese riots on the goldfields were expressed in immigration Acts, which stayed in force under the name of the ‘white Australia’ policy until the 1960s. The British government was not responsible for this legislation. Prejudice on which it was based may have been shared with the South African colonies and North America, but the initiative to restrict Chinese immigration came from within Australia. London’s contribution was merely to suggest a feeble disguise for discriminatory legislation.55 The first Chinese immigrants came to Australia in the 1840s as cheap labour for the pastoral industry, followed by tens of thousands more once gold was discovered. Mostly men, many of whom arrived in debt, they came with the hope of making their fortunes on the goldfields and returning home. At Buckland River in 1857 and at the Lambing Flat goldfields in 1860 and 1861, the diggers tried to drive them off their claims. The Eureka flag flew as the miners attacked the Chinese; radicalism and 147

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nationalism had a racist element. Troops were called in, rioters were prosecuted and racial discrimination was expressed in the statute books. White attitudes were based on greed, a deep feeling of their own moral superiority and fear of what the Chinese might bring, the spread of vices such as opium smoking and gambling, racial conflict and cheap competition for white workers. Australian egalitarianism was based on an equality of white men alone. Like Aborigines, Asians were left out of the embrace of mateship. Such icons as The Bulletin magazine and the Labor Party, and most politicians, openly favoured immigration restrictions based on race at the end of the nineteenth century. In the 1860s, the conservatives, acting in accordance with the British empire’s traditional open-door immigration policy, opposed the anti-Chinese laws. At that time it was the liberals who looked for ways to stop the flow of Chinese arrivals, and they accused the conservatives of merely seeking cheap labour for their pastoral properties.56 In 1855 the Victorian government reacted to pressures such as these by passing an Act whose express aim was to restrict Chinese entry to the colony; it imposed a £10 tax on each Chinese immigrant and restricted ships to landing only one Chinese person for every ten tons weight of the ship. The imperial Colonial Secretary allowed the Act to pass but protested that the law was opposed to the empire’s immigration policies. The Act was easily evaded when the ships landed in South Australia instead, and the Chinese walked across Victoria to the goldfields. A Royal Commission of 1856–57 found that there were 40 000 Chinese in Victoria, mainly digging for gold. They paid their taxes, but, ominously, the commission found that they participated in vice. More restrictive laws were passed across Australia in the 1870s and 1880s, with higher poll taxes and lower ratios of immigrants to tonnage. When the governors and London objected to the overt racial basis of these laws, they were met with cries about colonial independence.57 The colonial governments tried to stop Asian immigrants by executive action as well. When Chung Teong Toy arrived in Victoria in 1888, a customs official refused him entry even though he was willing to pay the tax. He appealed to the Victorian Supreme Court. Chief Justice Higinbotham supported the government’s case on a wide view of its powers, but he was in a minority. The majority held that the government had no right to stop the plaintiff ’s entry to Australia.58 This was reversed by the Privy Council in London, on the basis that aliens had no enforceable right to enter a British country. In 1888 the Parkes government in New South Wales instructed its officers to deny entry to Chinese immigrants, contrary to its own Influx of Chinese Restriction Act 1881. The Supreme Court declared this to be 148

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unlawful, but the government persisted, even after a second judicial decision saying that it was illegal to do so. In a third decision the Supreme Court said that the government’s actions were in deliberate defiance of the court. According to the judges, it was the duty of the executive to uphold and enforce judicial decisions, not defy them. Ultimately, however, the court was powerless. This unprecedented clash ended when the parliament passed a new anti-Chinese immigration Act and indemnified the ministers and officers who had breached the law.59 The overt racial basis of this first wave of legislation offended the sensibilities of London. In 1880 the participants at an intercolonial conference agreed that it was essential to the welfare of Australia’s people that Chinese immigration be restricted. They declared that this should be done by requesting London to apply diplomatic pressure on the emigrant countries, and by uniform colonial legislation. Another conference in 1896 resolved that the restrictions should apply to all ‘coloured’ people. London baulked at this and refused assent to legislation based on the resolution. The Secretary of State for the Colonies, Joseph Chamberlain, told the premiers that he was sympathetic to the colonies’ aims and to the concern about the threat to white workers, but he was worried that the openly racial basis of the legislation offended Asian members of the empire as well as Britain’s ally, Japan. He suggested that the Australian governments should follow Natal’s lead, under which one ground for refusing entry to an immigrant was her or his failure to pass a language test. This was the thinnest possible veneer for racially discriminatory policies. The notorious dictation test became the basis of Australian immigration law until it was repealed by the federal Migration Act in 1958. New South Wales passed an Act in 1897 based solely on the language test, while some of the other colonies and New Zealand adopted the whole of the Natal provisions, which also included prohibitions on the immigration of insane, diseased and convicted people. The federation conventions agreed to give power over immigration to the commonwealth government, and it passed an Immigration Restriction Act in 1901, also modelled on the Natal legislation. The debate in the new national parliament had an unapologetic air of white superiority, with expressions of concern that non-whites would lower the civilisation and standard of living of the British people of Australia. The bill was moved by the Prime Minister, Edmund Barton. Like most Australians of their day, most of the founding fathers were white supremacists at heart.60 The pro-white policy also ended the use of indentured Pacific island labour in the canefields of northern Australia. It had been felt that no white man should endure the bad conditions of sugar production, and so Kanakas were brought as labourers for three years, after which they were expected to go home. Some opposed this on the racial ground that it would 149

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lead to moral contamination. Others were concerned that it smacked of slavery. The Queensland government tried to appease both sides in a series of regulatory Acts, beginning with the Polynesian Labourers Act 1868. Imperial legislation was more effective, leading to prosecutions in the Australian courts for kidnapping. Despite that, the islanders continued to be tricked into working for minimal sums supposedly on the basis of freely bargained contracts. Laissez faire contract law may not have been applied to European workers, but it was used to justify Kanaka labour. Before the end of the century a change in technology had begun to improve the conditions of canefields work, leading to an increase in white labourers there. This increase was accelerated by the development of small sugar farms on which white men worked their own land, and by the depression, which made white workers more desperate for employment. These changes meant that the new national parliament was free to mark the official end of the use of indentured Pacific workers, which it did by the Pacific Island Labourers Act 1901. This Act required the deportation of non-white workers, the lowest point in Australia’s immigration history.61 The federal parliament followed Chamberlain’s suggestion in not explicitly basing the Immigration Restriction Act 1901 on race. The Act’s dictation test gave a vast discretion to the government, by allowing officials to require immigrants to pass a written test in any European language. The arbitrary nature of this was shown in the Kisch High Court cases in 1934.62 Egon Kisch was a peace activist, who twice appealed to the High Court against the federal government’s attempts to stop him entering Australia and speaking at political rallies. The government first tried to exclude him on the basis of a provision in the Act that dealt with security risks. Justice Evatt would have none of it, holding that the Act’s requirements had not been satisfied. The government’s next tactic was to require the multi-lingual Kisch to take a dictation test in Scottish Gaelic. By majority, the High Court decided that this was not a ‘European language’ within the meaning of the Act. This delighted civil libertarians and the left, but greatly offended Australia’s Scots. Once again, colonial legal ideas had been blocked in London, this time just a few years before the establishment of the Australian nation. Like the laws dealing with Aborigines, Australian immigration legislation was racist. It was the British who favoured non-racial laws; the Australians wanted to retain their pure British breeding by excluding non-whites. These laws, above all others, shatter any illusions we might have that locally developed Australian law was necessarily progressive and enlightened.

NEW PRINCIPLES IN NEW BODIES In one sense, mining law is typical of a pattern in Australian law generally. It began with very informal dispute resolution under the gold commission150

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ers. When that was abolished, the legislature tried another informal method of resolving conflicts: the local courts. Their perceived failure led to the introduction of new courts with professional judges, although still for a particular purpose. The change was from amateur or informal law to professional law. Sometimes the movement goes the other way, however; a dissatisfaction with the cost and complexity of strict law leads to the deliberate creation of informal and accessible tribunals. Over the course of Australian history there has not been a single-minded march from frontier-style informality to rigid law administered by legal professionals. Instead, we have seen an oscillation, a movement back and forth from informal to formal law, amateurism to professionalism, from local to imperial law, pluralism to legal centralism. The introduction of lawyers into a new area often threatened to impose one central view of law, a crushing of the local by the power of strict law. Informal law was often sensitive to local values, but it was frequently attacked as partial, confused or arbitrary. Its critics often argued that only the strict application of law, by which was usually meant the common law of England, upheld popular respect for the courts. Local amateurs may have been responsive to the community, but they lacked the appearance of neutrality, of the scientific application of a set of principles imposed from above. The flexibility of informal tribunals was both their strength and their weakness. This oscillation has been a feature of Australian law since 1788. Judicial amateurism has two meanings, being legally untrained and acting judicially without payment. In both senses, it faded over time as paid lawyers took over decision making. Unpaid squatter magistrates were replaced by paid stipendiaries in the middle of the nineteenth century. New South Wales magistrates are now trained lawyers, but were not required to be so until the second half of the twentieth century.63 The same pattern applied in the minor civil courts. The Courts of Requests, which were created under the constitutional reforms of 1823, decided civil cases up to £10. Like the English courts on which they were modelled, they operated very informally. Lawyers were specifically excluded from appearing there at first, there were no appeals to higher courts, and they were required to act according to ‘equity and good conscience’ rather than the strict law. When Roger Therry was commissioner in one of these courts, he rejected the felony attaint defence on the ground that ‘a Court of Requests was a Court of Conscience, and that such a defence as this shocked all conscience!’64 It was just this attitude that appealed to people who wanted cheap, quick and non-technical justice. Many lawyers opposed the expansion of the Courts of Requests, since their business would have been diminished and because of their doubts about the standards applied there. These courts were the heir to the civil courts of the frontier period, 151

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but Therry was a lawyer who would later be a Supreme Court judge, not merely a serving or retired military officer.65 The Courts of Requests drifted towards the procedures of ordinary civil courts, after which they began to lose power. In 1847, they lost some of their jurisdiction to the magistrates sitting as Courts of Petty Sessions. The rest went to the new professionally constituted Victorian County Court in 1852 and the New South Wales District Court in 1858, which were modelled on the English County Courts of 1846. Queensland followed this pattern, but the other colonies were slower to do so. In the beginning the District Court judges travelled around the countryside without bar or library, dispensing law as they could remember it, professionally qualified judges in frontier conditions. One of them even stayed in the litigants’ houses, to save him from having to spend his daily travelling allowance.66 Today, the District and County Courts are barely distinguishable from the Supreme Courts except for their jurisdictions. They generally operate under the same rules and are part of a fixed hierarchy; wigs, gowns, high costs and legal technicality are all evident there, as are the advantages of perceived impartiality and neutrality. This was not the end of diversity. The Australian superior courts slipped into specialised divisions, of equity, commercial law and other areas, and the creation of specialised professional mining courts was also a recognition of legal difference. The parliaments continued to make new tribunals and courts, even in the twentieth century. The states’ current consumer law tribunals are similar to the old Courts of Requests, with decisions by non-lawyers according to broad standards of justice.67 The most important Australian example of this is industrial law, where new principles were applied in new bodies. There has been a continuous search for balance between informal specialised law and universal principles. H.W. Arthurs, an academic lawyer, argues that despite a centralising tendency, diversity also continued to burst out in England in the nineteenth century. There was an increase in arbitration as well as broader decision making by the bureaucracy, he says. He concludes that English law was no less pluralist at the end of the nineteenth century than at the beginning, despite the abolition of the vastly diverse ancient courts.68 The character of Australian legal decision making can not be discovered simply by reading its statutes or the judgments of its superior courts. We need to look at the specialised courts and tribunals as well, at the interaction between the diggers and the mining courts, debtors and the Courts of Requests, workers and the industrial tribunals. Even when Australian specialist courts were based on those of England, their decisions were not necessarily the same, any more than the superior court judges always followed English law. Those at the top of the judicial hierarchy at the end of the nineteenth century thought that they discovered the law in some 152

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infallible fashion and that it then seeped down to reach those below them, from London to the judges sitting in all the court rooms of Australia. That was only a theory, which needs to be tested by detailed research in the archives.

FROM EXTERNAL TO INTERNAL CONSTRAINTS Divorce and immigration were the last major places of resistance by London against the legislative power of the colonies. In the Australian parliaments, debate over the principles of divorce was overshadowed by the assertion of their right to pass their own laws unhindered by the Colonial Office. They won this battle by the turn of the century, and few were perturbed that many of the Acts passed by the state and federal parliaments in the twentieth century conflicted with general English law. The Australian parliaments were still subject to the paramount legislation of Westminster, but this rarely had any practical effect. After federation, the limit on the Australian character of law was largely internal rather than external. Locally born and educated judges copied English common law without hesitation. The British government did not trust this ingrained deference, however, and insisted on the continuation of a significant role for the Privy Council. This became a major issue in twentieth-century Australian law.

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C REEPING TOWARDS LEGAL INDEPENDENCE, 1901–1960

CREEPING TOWARDS LEGAL INDEPENDENCE

THREE CHEERS FOR THE QUEEN AND THREE FOR AUSTRALIA The Australian constitution is a deeply ambiguous document, with roots in both the British legal tradition and Australian democracy. It was created at a time of ambivalence about Australia’s place in the world, whether it was an independent country or a child of England. The document was drafted by lawyers, loyal to the English traditions of law, yet Australian nationalists at heart. Many of the founding fathers felt no real conflict between these tendencies, which were quietly buried in the constitution, to be uncovered over the next century. When the final constitutional convention closed in 1898, it ended with three cheers for the queen and three for Australia.1 The constitution was enacted by the imperial parliament as section 9 of the Commonwealth of Australia Constitution Act 1900. Under British constitutional theory, what one parliament does can be undone by another. According to this, the Australian constitution could be repealed at any time merely by the passage of another Act in Westminster. That is, imperial parliament made a gift of sovereignty, which it can take it away. Even within the imperial statute, however, there was reference to the wishes of the people of Australia. The preamble to the constitution Act begins ‘Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom’. Western Australia joined the federation at the last minute, becoming one of six foundation states on the first day of the twentieth 157

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century (and the only one that later took seriously the idea of seceding). The constitution was drafted in Australia, and the process was approved by legislation of each of the popularly elected colonial parliaments. This time there was no false start, as there had been in the 1880s, when New South Wales had refused to join the unsuccessful Federal Council of Australasia. The link to the people was strengthened when they elected the delegates to the 1897 convention that debated the terms of the constitution. More importantly, the constitution was put to two referenda of the Australian people. Although Australia was not born through a revolutionary demand for popular sovereignty, its constitution was more than a document of politicians and lawyers and more than the handing down of sovereignty by the imperial parent to its Australian children. The preamble had some historical substance.2 The constitution shows other historical tensions as well. It is the product of compromises made in the 1890s, between supporters of state rights and centralists, democracy and the interests of the smaller states, conservatives and liberals, English legal tradition and innovation. Some of its structure was borrowed from the United States constitution, including the idea of a balance between the states’ house, the Senate, and the more democratically representative House of Representatives. Federalism was not necessarily in conflict with British ideas, however. Canada was a federation, as was the empire itself.3 The resulting document creates a rather awkward version of the Westminster system of responsible government. Red and green leather, men in wigs and stockings, maces, and deference to the queen were all copied from England, but with deep social, legal and political differences. The nineteenth century’s legal clashes over imperialism continued into the twentieth, but there were also new themes in the new century. Judicial review of legislation took on a different life under the national court created by the constitution, the High Court of Australia. This was review by an Australian court, under standards that were largely developed locally. The imperial grasp on Australian law may have loosened on 1 January 1901, but it did not end then. Australians still called England ‘home’, they still fought under the British flag, and they continued to sing ‘God Save the Queen’. Queen Victoria was the first Australian head of state, not Banjo Paterson or Nellie Melba. In moving for the transmission of the draft constitution to London, Edmund Barton, who would become the first prime minister and a member of the first High Court said I believe whatever may lead to our legislative independence, so long as it affirms the relation of amity and loyalty which exists between all these colonies and the mother country will be viewed with extreme favour by all those interested in the dear old land, in the strengthening and welding together, and in the continued affection between one part and another of the whole empire.4

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This combination of independence and subjugation to London was reflected in the new country’s law. Under the common law system which the Australian constitution continued, there are two bodies that make law, the judges and the parliaments. Both were subject to imperial restrictions after 1901. The key debate for Australian legal independence in the twentieth century concerned the role of the empire’s supreme judicial body, the Judicial Committee of the Privy Council.5 In close voting at the constitutional conventions, it was agreed that once the new commonwealth constitution came into effect, there should be no appeals as of right from Australian courts to the Privy Council. It would hear appeals only if the queen gave leave, and only in matters of public interest of the commonwealth, the states or other dominions. Under this, the High Court would have been the normal summit of the Australian legal hierarchy, hearing final appeals on constitutional and general law. This even had the support of conservative lawyers, who thought there was sufficient legal expertise in Australia. Isaac Isaacs, who later became Chief Justice and governorgeneral, said that the members of the Privy Council were ‘as unable to interpret the meaning of our statutes as if they were living in the planet Mars’.6 This was too much for the Colonial Office in London. Chamberlain, the Colonial Secretary, insisted that it was necessary to retain Privy Council appeals on private matters as well as grand affairs of state. This would maintain uniformity of law throughout the empire (on the English model, of course). The Privy Council saw itself as the tie that bound the empire together, justifying its existence by the claim that all subjects had a right to appeal to the Crown. (The Judicial Committee of the Privy Council is not formally a court, but a committee which advises the queen.) Chamberlain darkly added a further rationale: the continuation of Privy Council appeals would maintain the confidence of British investors in Australia, who were concerned that ‘local prepossessions’ might affect Australian judicial decisions. These were powerful people, who, Chamberlain said, would insist on imperial control of Australia’s courts. There had been an organised campaign within Australia to promote the same argument; the implication was that Australians could not be trusted with Britain’s wealth. Even some of the Supreme Court Chief Justices lobbied for a continuation of appeals to London. Australian interests were compromised in the final draft on the appeals question. As enacted, section 74 of the constitution provided that the High Court would be the final court of appeal only in some constitutional matters, the inter se questions. These concerned the split of powers among the states, or between a state and the commonwealth. Even in these cases, the High Court had power to issue a certificate authorising a further appeal from it to the Privy Council. On all other points of law, the Privy Council 159

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could give leave to hear appeals, whether directly from the Supreme Courts or from decisions of the High Court. The constitution gave the commonwealth parliament power to limit appeals to the Privy Council, but the governor-general was required to reserve proposed laws of this kind for the queen’s assent in London. Section 74 of the constitution was an important restriction on the development of an Australian approach to law making. Except in the inter se matters, the final shape of state and federal law could be determined in London, and the British government would decide when to give permission to release the Privy Council choker. Privy Council appeals were eventually abolished in stages, from 1968 to 1986, after which there was an explosion in independent Australian legal thought. Until then, the High Court was not the final court of appeal, which the members of the constitutional conventions had wanted; it was merely an intermediate court of appeal on general law and some constitutional questions. The ambiguity of nationalism within the empire was also evident in the roles of the state governors and the commonwealth governor-general. They were torn between their loyalty to the queen and their obligation to follow the advice of their Australian ministers. Like the colonial legislatures, which now continued as state parliaments, the commonwealth parliament created by the Australian constitution could make law only with the approval of the queen or her representative. Under section 58 of the constitution, the governor-general can give assent in the queen’s name, refuse it, or refer the law to the queen for assent, which is to say, for the approval of the British government. Even if the governor-general gives assent, the queen may still disallow the law. This became less likely to happen as the century progressed, but the governors and governors-general also retained their power to dismiss elected governments (notably John Kerr’s dismissal of the Whitlam government in 1975). Unfortunately this continues to be a live feature of Australian constitutional practice in the state and federal arenas; we can not be certain that it will not happen again before the end of the century. No Australians held office as governor-general until Isaac Isaacs in 1931. His was a controversial appointment, which excited the Royal Empire Society and other loyalists.7 The commonwealth parliament was also subject to the paramount force laws of the empire. The Colonial Laws Validity Act 1865 was as much a limit on it as on the colonial and state parliaments. Some imperial legislation bound Australia, and there was nothing its parliaments could do about it. The imperial Merchant Shipping Act, for example, which was passed in 1894, showed that the British government was determined to retain control over shipping. This was also made clear during the negotiations about the terms of the Australian constitution. The commonwealth parliament was not free to alter this until 1931. The states waited another 160

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half a century after then before they cast off this strong remnant of colonialism. In the meantime, the courts had to decide whether British statutes were applicable, whether they applied by paramount force, and whether the laws of the states or the commonwealth contradicted them.8 The Australian constitution itself placed further limits on the lawmaking powers of the state and federal parliaments. The distribution of power between them was one of the most tightly contested issues at the constitutional conventions. In the end, the commonwealth was given a very short list of exclusive powers, and a longer list of powers that it could exercise along with the states. The concurrent powers included laws about taxation, defence, marriage and divorce, industrial arbitration of interstate disputes, transport, pensions, bankruptcy, trade, immigration and external affairs. When the states made laws on these topics, they were invalid to the extent of any clash with commonwealth laws, according to section 109 of the constitution. In effect, the commonwealth was allowed to take over these areas. The influence of the colonies at the end of the nineteenth century is shown by the fact that residual powers, anything not on the list, were left to the states. The intention was that the colonies would retain their autonomy as the new states of the commonwealth, and the central government would have only the powers it needed. This list of state and commonwealth law-making powers had to be interpreted, and here was one new form of judicial review of commonwealth and state legislation. An Act could be struck down as invalid because it was outside the list of the particular parliament’s powers, or because it was a state law in conflict with a valid commonwealth Act. The High Court jealously guarded its monopoly on this inter se issue, which became the basis of some of the great legal cases of the twentieth century, such as the Tasmanian Dams Case. How far, for example, did the external affairs or banking powers go? These were much more than legal questions. They went to the structure of the Australian system of government, to the spread of practical power between the states and the federal parliament. These issues, which were a consequence of the federal system of shared powers, were completely foreign to the English notion of the supremacy of parliament. Lawyers have a tendency to complicate plain words such as section 92 of the commonwealth constitution, which states that ‘trade, commerce, and intercourse . . . among the states shall be absolutely free’. The context was a desire to abolish customs posts at the colonial borders in places like Albury as well as to prevent other discriminatory barriers. Those who drafted these words thought that they had ‘the further recommendation that no legal technicalities can be built upon them in order to restrict their operation. It is a little bit of laymen’s language which comes in here very well.’9 161

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They could not have been more wrong. The words of section 92 took on mystical significance in the minds of the legal profession. This simple section has provided lawyers with countless Daimlers, holiday homes and fees for expensive schools, as they churned them over for the advantage of their clients. Were they a charter for laissez faire trade within the commonwealth, and thus a bar to marketing schemes and consumer protection? Or did they have a narrower, more technical meaning? Reviewing 50 years of High Court and Privy Council interpretation of section 92, Robert Garran, one of the grand old men of the constitution, talked of the student who ‘closes his notebook, sells his law books, and resolves to take up some easy study, like nuclear physics, or higher mathematics’.10 This was another limit on state and commonwealth law making, another opportunity for judicial review of legislation. The new federal structure placed the High Court at the centre of this new form of jurisprudence. The first of its judges, Griffith, Barton, and O’Connor, had all been heavily involved in the drafting of the constitution. Its deceptively simple language left it open to vast subtlety of argument. The constitution itself provides for its own amendment in section 128. This requires an Act of the commonwealth parliament and, as a concession to the smaller states, both an overall majority in a referendum of the people and a majority in the majority of the states. The Australian people have always distrusted their politicians, and few amendments have made it past all of these stages. Despite this, there have been vast changes in the balance between commonwealth and state powers since 1901, with the commonwealth now holding political powers that would have amazed the founding fathers. These have come about through the commonwealth’s financial control over the states and through judicial interpretation. The unelected judges of the High Court regularly amend the constitution, through changing their interpretation of its words. They adapt the document to their perceptions of its meaning and their notions of Australian needs. They are at the centre of public life in Australia.11

C U LT U R A L C R I N G E A N D T H E M Y T H O F UNITY HOMER

IN THE

AUSTRALIAN

ALPS

In addition to the external constraint of Privy Council appeals, the judges of the High Court and other Australians courts carried their own internal limitations on the kind of laws they made and applied. The High Court judges have all been white, male in every case but one, mostly Christians, and a majority have been appointed by conservative governments. All of them, needless to say, have been lawyers. By background, education and profession, although not necessarily in politics, they have been predomi162

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nantly conservative. This does not mean that they have been uniformly orthodox in their attitudes to legal and social questions. They may look like seven black crows in spectacles, perched on a wooden bench as Craig McGregor said, but in all periods there have been differences between them, disagreements about the adaptation of the English legal heritage to Australia.12 Until recently, the dominant attitude on the High Court bench, as in conservative Australian society generally, was to look to England for verification in all important issues. Internalised imperialism kept Australian common law close to that of England, assisted by the notion of rigid precedent, the view that there was one legally correct answer to any problem, which trickled down from London. Even in the years when Australian-born and trained judges unthinkingly copied English law, however, there were dissenters on the bench. The nature of the judiciary can partly be shown by their apparent taste in reading. Michael Meehan has shown that Australian judges often cite literature in their judgments, sometimes decoratively but at other times very usefully.13 Shakespeare is the most quoted author, followed by Dr Johnson, then Pope and Dryden. Classical and neoclassical literature predominates, with only a light representation of Romantics and Victorians, those who wrote after the European occupation of Australia began. Women writers do not figure in Meehan’s list of judicial citations. Among more than a hundred literary allusions, he found only two references to the works of Australian writers. These were made by two of the most controversial members of the High Court, the ex-Labor politicians, Justices Evatt and Murphy. This may be the best available indication of the mentality of twentiethcentury judges, as Meehan suggests. Part of the reason for their failure to take Australian literature seriously, he says, is that schools and universities have only recently begun to do so. This is evidence of a derivative culture in literature as well as law. In looking for universal truths in the literature they quote, the judges are showing the same tendency as when they look for unity in the common law. There may, however, be room for hope, Meehan suggests. Australian literary writing broke away from imitation of England in the 1890s, which was eventually acknowledged by critics and academics in the 1960s and 1970s. This will eventually seep into legal decision making as well. The discovery of Australia’s distinctive place within the common law tradition has been even slower than in literature. This book shows that legal academics and historians have been working away at this issue for at least the past decade, some of them apparently unaware that they are not alone in finding legal distinctiveness. Professional historians are becoming aware of the importance of law in Australia’s history, and academic lawyers 163

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have cast off their belief in the neutrality and timelessness of the law. It may be that future lawyers will be less quick to assume that Australian law was always merely an unimportant by-product of English law. The autobiography of historian Manning Clark shows that during the 1930s, academic history in Australia suffered the same kind of deference to European history that lawyers and literary critics have exhibited. A major part of his life story, like those of writers Patrick White and Andrew Reimer in their different ways, consisted of coming to terms with the role of European traditions in Australian society. All had been taught the values of the empire, with its implication of the superiority of England and Europe. Culture, Clark was told, was ‘over there’, not here in Australia. This began to change, he said, when the Second World War caused many Australians to wonder who they were. Eventually Clark saw that the greatest themes in human existence could be explored with Australian materials. There was no need to turn his back on his heritage in order to write Australian history, no need to reject western culture. That would be just cultural cringe in reverse, a narrow, parochial nationalism. He showed that it is important to explain Australia’s distinctive part in western civilisation.14 Australian judges had the same kind of education as Clark, Reimer and White. Even those who are only now being appointed to the bench grew up reading Biggles and Enid Blyton, letting off fireworks on Empire Day, and standing up at the Saturday afternoon pictures when ‘God Save the Queen’ began each session. Most High Court judges were highly accomplished even before they began to study law. As Neumann shows, many of them held first class honours degrees in Arts, mostly awarded by the Universities of Sydney and Melbourne. Given the European slant of Australian education for most of the twentieth century, it is no wonder that they quote high-level European literature. Legal education was unlikely to dilute the effects of this Anglophile schooling.15 Until the university law schools were established, Australian legal education was entirely in the hands of lawyers. The University of Melbourne established a Faculty of Law in 1873, and Adelaide in 1882. The University of Sydney did not begin its Law School until 1890, although it awarded degrees in law before then. The transfer of legal education to the universities is still incomplete. The largest law course in Australia is the New South Wales Legal Practitioners Admission Board course, which is a vast remnant of professional legal education of a century ago. The development of university law courses did not mean that academics immediately wrenched control away from the hands of practising lawyers. Much of the legal teaching at the three universities, Melbourne, Sydney and Adelaide, during the first half of the twentieth century was by legal practitioners who taught law in the evenings. Sydney University’s Law 164

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School was established in the city, where it still is, across the road from the Supreme Court and far from the rest of the university. Even some of its most influential full-time academics in the first half of this century apparently saw themselves as lawyers first and academics second. The introduction of university legal education had two aims: the education of gentlemen and the development of the skills needed by lawyers. Some of the early Law Deans, such as Hearn in Melbourne and Cobbett in Sydney, had broad interests, but this was not the same as an interest in developing Australian ideas about law. As at Oxford and Cambridge, Australian law students earlier this century studied Roman law and jurisprudence, and read English cases and text books. The close links between the law schools and the profession are shown by the fact that 60 per cent of the lecturers at the University of Sydney during the time of John Peden as Dean (1910–41) were later appointed to the bench; six of them became High Court judges. In this period, even the New South Wales AttorneyGeneral complained that Sydney University Law School was too concerned with training technicians and too little with educating broadminded lawyers. Legal history was part of the Sydney curriculum, but like history generally, the emphasis was on England, not Australia. The same applied at the other law schools as well, with the result that generations of students were taught the intricacies of irrelevant English land law, while learning little about important Australian law.16 Peden’s period as Dean at Sydney University Law School ended in great controversy, when he and others tried to block the appointment of Julius Stone as professor. Stone was eventually affirmed in the post and became the great questioner of basic legal principles which Australian academic law so much needed.17 This was not the end of the era of narrow legal technicians and part-time teaching, but it was the beginning of a much more critical approach to the law at Sydney. Nor was Peden’s retirement the end of the other great limitation on legal education and therefore the profession and the judiciary: the absence of women from the law. Even in 1976, less than 20 per cent of law students at the University of Sydney were women; only recently has there been close to equal representation of the sexes.18 The first woman graduate of the school, at the turn of the twentieth century, was as lonely a figure at Sydney University Law School as women still are on the bench. Melbourne University Law School, which also educated numerous High Court judges, showed a greater tension between professional and university values. The faculty stressed during the 1930s that it wanted to provide more than ‘a legal tradesman’s course’.19 Even there, however, most of the teachers until after the Second World War were members of the practising profession, giving lectures in the evening. As at Sydney Law School, these part-time teachers were unlikely to ask basic questions about the law or 165

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question its basic assumptions. Nor were women any more common in Melbourne Law School than at Sydney. Women were allowed to enter the Victorian legal profession in 1903; they had to wait until 1918 in New South Wales.20 This was not the same as equality of opportunity, however. Like the attitude to local legal thought, the internal constraints against women in the law were as important as those imposed by formal law. STRICT

AND COMPLETE LEGALISM

The inclination of Australian lawyers to follow English precedents cannot be explained as just a version of the cultural cringe that had us reading English authors and pining for the green fields of Kent during the 1950s and 1960s. Even if the judges had shared that Anglophile vision, it would not necessarily follow that they would simply copy English law. The history of Australian law in the nineteenth century gives sufficient warning against that assumption. Even the colonial judges who were born and trained in England, and who were determined to bring strict adherence to English law with them, sometimes made decisions that would never have been made at home, as they put it. An admiration for English law was only one reason for its influence in Australia. The law is more than a matter of personal taste such as literature or art; it is also a system of authority, which is strongly influenced by theory. The Privy Council occasionally told Australian judges which rules of law to follow, but even this was not usually necessary. For much of the twentieth century, Australian lawyers simply accepted that there was one unitary common law across the empire, passed down from above in a system of strict precedent. This was not just imperialism at work, although that was part of the explanation. The Australian judges followed more than the Privy Council, whose decisions immediately bound them. They also followed the House of Lords and even the Court of Appeal, the intermediate-level court in England. These strictures were largely selfimposed. In 1943 the High Court decided that it would follow the decisions of the House of Lords even in preference to its own previous decisions. It had already decided in 1926 that it would follow the Court of Appeal, at least in commercial law and property cases where it thought uniformity across the empire was important; it maintained this position until the 1940s. The Privy Council had told colonial courts in 1879 that they should feel bound by the Court of Appeal, a view it did not alter until 1980. As Castles points out, the general deference to English courts was partly because the Privy Council was the summit of the Australian legal system in judge-made law. There would be little point in refusing to follow the House of Lords, because essentially the same group of men also sat as the Judicial Committee of the Privy Council (although it sometimes included 166

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one or two judges from the dominions as well). On this basis, it did not matter that relatively few cases went on appeal from Australia to the Privy Council. Its continuation as the supreme court of imperial appeals was decisive.21 There was more to this, however, than a simple insistence on an authoritarian structure. The trickle-down theory of law even affected the House of Lords itself. It decided in 1894 that even it was bound by its own previous decisions, a principle it did not revoke until 1966.22 This amazing decision by the House of Lords, this charter of conservatism regardless of its consequences, was based on the view that the only role of judges was to find and declare the right legal answer to any question. As chapter 5 has shown, legal thought from the middle of the nineteenth century onwards was dominated by a pseudo-scientific theory that tended to smother legal creativity throughout the empire; under this, legal decision making was seen as a neutral process in which the correct legal principle had only to be discovered by the judges, not created by them. If there were any injustice in decisions made under this theory, variously called classical legal positivism, legalism or formalism, it was the legislature’s job to correct it. This lent a sometimes specious tone of democracy to a doctrine which, above all others, favoured those whom the common law most favoured, those with property. By the end of the nineteenth century a series of common law rules had been created that favoured producers over consumers, employers over workers, and industrialists over those whom their industries harmed. The stare decisis rule, that the legal question had been decided and could not be reopened, set many unjust laws in concrete: the extreme laissez faire principles of late-nineteenth-century common law were seen to be immutable and timeless.23 We need not see this as some terrible plot, a conscious ruling-class conspiracy to hijack the law and draw a mask over its preferences. It is often necessary in law to distinguish between intention and outcome. Nor does it mean that the law is merely politics in disguise. It has its own rich principles, sometimes connected with social and political events and sometimes not. It should not surprise us, however, that the outcome of law-making often favours the wealthy. The doctrine of precedent is inherently conservative. Under this theory, it was necessary to search past cases, whatever their age or context, to find the ‘correct’ legal principle. Having done so, the judge then had to apply the discovered rule to the facts before the court. Logic and precision were required, not compassion or historical consciousness. The theory was based on bad history in its failure to recognise why a certain decision had been made at a particular time, that it was an expression of the values of the judges who made it. Its supposed neutrality was exploded by American legal realists in the 1930s, who pointed out 167

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that this judicial technique could easily be manipulated, and worse, that it was a mask for the policy preferences of the judges. Julius Stone made similar arguments.24 This had little effect in the courts of the British empire, where the same theory trundled on for decades. It still lurks in the minds of many Australian judges. Sir Owen Dixon, Chief Justice of the High Court from 1952 to 1964, and judge there from 1929, was the most influential adherent of this theory in Australia. When he took office at Sydney in 1952, he stressed the neutrality of judicial decision making. In the most famous statement in Australian law, he said: ‘It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.’25 He gave a subtly different message to the Melbourne bar a fortnight later, placing less emphasis on strict case law and more on the importance of facts and the presentation of ‘a policy or a view’. Perhaps Tony Blackshield is right, that Dixon was telling each bar what he thought it needed to hear, that Sydney should follow the law more closely, and that Melbourne should be less pedantic.26 By 1955 Dixon recognised that there had been a loss of faith in scientific method in other disciplines. He argued, however, that law was confined to the realm of ideas. Any analogy with what he called the fashions of other disciplines could only be false. This required a curious leap by Dixon: legal thought had been modelled on the sciences, but when they changed he said it was not necessary to change with them. That is, the law stuck with a failed method; its tradition and authority lost their intellectual peg. Legal knowledge was based on predictability, said Dixon, which itself was based on the assumption that there was an ascertained body of rules. These could be extended legitimately to new facts in a process of evolution, but it ‘is an entirely different thing for a judge, who is discontented with a result held to flow from a long accepted legal principle, deliberately to abandon the principle in the name of justice or of social necessity or of social convenience’, he argued.27 The benefits of this approach were uniformity, consistency and certainty of law; the assumption was that there was only one common law for the empire. Dixon was a man of subtlety, whose legal decisions should be studied as well as his speeches. He had many of the attributes of Australia’s judges, perhaps carried to an extreme: he used to ride a horse across the Australian alps, reciting Homer in classical Greek. One judge of the United States Supreme Court declared that he ‘is the greatest judge in the English-speaking world’. He was not as strict a legalist as his famous statement implied: he once criticised the judgment of a fellow judge as ‘proceeding by steps of impeccable logic to a most unjust result’.28 To Dixon, the common law 168

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was sufficiently flexible to avoid injustice. Nor did he feel compelled to follow England in every case. In 1963, he made the celebrated pronouncement that the High Court would no longer feel bound by the House of Lords, which is discussed in the next chapter.

B E N D I N G T H E L AW O N B U R N T F E E T We only have a hazy picture of the history of the High Court’s common law decisions. Most of the historical work on Australian law has concentrated on the nineteenth century. There is comparatively little on the twentieth century, and much of that is biographical and institutional rather than about legal doctrine. We need detailed studies of the development of law this century, and particularly of the judge-made law of the High Court. A group of Melbourne University academics have led the way: their collection of essays to commemorate Australia’s bicentenary in 1988 examined some of the differences between English and Australian common law.29 It is difficult to write the history of twentieth-century legal doctrine because of the legal positivism the judges preferred for so long; this masked the preferences of the judges, sometimes even from themselves. When this history is written, we might well find that the High Court was less deferential to English law than we presently assume. Some examples from tort law show the difficulties and potential of this kind of study. In the hands of a judge like Dixon, the common law was a method of developing legal principles rather than a set of rigid rules.30 This was clear in a 1960 torts decision by the High Court, Commissioner for Railways v. Cardy, in which a fourteen-year-old boy sued the railway for the personal injury he suffered when he walked on a bed of hot ashes. The ashes had seemed solid, but he broke through the surface and burnt his feet. There are many cases like this in the law reports, where children are injured when they play in dangerous areas without the permission of the land’s legal occupier. The problem Cardy’s lawyers faced was that under the common law at that time, trespassers could not usually sue the occupier. The traditional way around this was for the judge to decide that the child had received implied permission to be there. In this case, Dixon decided that this supposed consent was an unnecessary fiction. He thought the boy should win, but on more honest grounds. He looked at the facts, including the hidden danger of the ash pit and that the railway staff were aware that children played there. By studying common law principles, he then decided that the railway owed the boy a duty to take care. Without smashing the common law’s method or resorting to an unreal implied consent, he allowed him to recover damages. This case shows the flexibility of the common law, and the difficulty of generalising about the restrictive nature of formalism or legalism. In the hands of a lesser judge, however, or one who was less willing to be creative, 169

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the traditional method could be a straitjacket. There are also many legal principles that are so well entrenched it is not possible to step around them by the supposed rediscovery of basic principles, as happened here. Very few legal judgments stick in the mind because of the passionate way in which they were written. Judgments are often important, sometimes well written, but they are rarely impassioned refutations of injustice. The accepted twentieth-century judicial style is cool and analytical, to match the dominant theory of supposedly neutral judging. One exception is the great dissenting judgment by Justice Evatt in Chester v. Waverley Corporation (1939). Chester concerned the tragic loss of a child. A small boy drowned when he fell into an uncovered water-filled ditch, and his mother sued the municipal council that had left it in a dangerous state. She claimed she had suffered nervous shock as a result of the worry about her lost boy and the stress she suffered on seeing his body dragged from the ditch. The common law in 1939 showed a great distrust of intangible injury, as it still does to a lesser extent. It was extremely difficult to recover damages for psychiatric harm, and the majority view of the High Court in Chester was that she had not met the very harsh standard required. The power of Evatt’s judgment comes from the strength of his narrative and his touching use of Australian literature to show that the loss of children has a special meaning in Australia. He developed the legal principles and emphasised the severity of the situation to uphold her claim, although in a lone dissenting judgment. Isaac Isaacs, a member of the High Court from 1906 to 1931, wrote an equally powerful dissent in Wright v. Cedzich in 1930. Under English common law, a husband could sue a man who seduced his wife away from him. The theory was that the husband had a property right in her services, which he could protect by an action for damages. (A wife could not sue her husband’s seducer, however, because she had no such proprietary right over her husband’s obligations to her.) The majority in the High Court followed this rule, which was, Isaacs said, one of legal and moral degradation of women. The law had been moving away from this in reforms to the franchise and in married women’s property laws. The majority view deeply angered Isaacs, who said that judges ought to be able to change the law if they are to be living organs of a progressive community. Isaacs made the same kind of argument for judicial activism in Bourke v. Butterfield and Lewis Ltd (1926). In this case he was in the majority, holding that a worker could sue his employer for breach of the statutory obligation to keep fences around dangerous machinery, even when the worker had been careless. This was not the end of the matter, because the House of Lords disagreed with the High Court view, stating that contributory negligence by the worker was a complete defence for the employer. 170

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After that, the High Court caved in and reversed the Butterfield and Lewis decision. It took legislation to restore the Isaacs view, and justice, to industrial law. These cases show three basic techniques for dealing with unwanted English precedents: deflection of legal principle through supposed discovery of new aspects of it, avoidance on the basis of factual distinctions, and head-on confrontation. There are many questions to ask about these decisions. What was the accepted rule in England, and why did it develop in that way? Did the judges assume that a different rule should apply in Australia, and if so, how would it be justified within accepted common law methods? Where differences did develop between Australian and English law, were they open to cultural, political, economic or social explanations? Was there anything in the backgrounds of the judges themselves to explain their decisions? It is too simple to state that in its first 50 or 60 years the High Court merely copied English common law. That is largely true, apparently, but this should be the commencing point of historical analysis, a hypothesis to explore, rather than a conclusion. Although legal formalism exerted a powerful influence on the court’s decisions, that was only part of the story. It is just as important to discover what the judges decided as the rules they apparently followed.

KEEPING OUT THE PRIVY COUNCIL The Australian constitution is a unique blend of English, American and local legal principles, which allows the courts to develop legal doctrine with no remote counterpart in English law. There is no room here for even a brief survey of the principles developed by the courts in interpreting the constitution, but fortunately the published analyses of Australian constitutional law have explored many important historical themes. Through them, we can see the gradual shift of power from the states to the commonwealth, the frustration of legislative attempts to ban the Communist Party, or to nationalise the banks, and the hostility of traditional judges to the arbitration system. The aim here is to examine the conflict between the High Court and the Privy Council over this uniquely Australian law.31 One of the main functions of the High Court is to interpret the constitution, but until 1968 it shared this power with the Privy Council, the heart of British legal imperialism during the twentieth century. The constitution apparently left the High Court in exclusive control of the inter se questions on the distribution of powers between the states and the commonwealth, but the Privy Council interfered with them as well. The first great clash between the High Court and the Privy Council on constitutional matters occurred soon after federation. In D’Emden v. Pedder 171

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(1904),32 the High Court decided that commonwealth public servants were not liable to pay state taxes. It relied on a theory that state and commonwealth governments each had an area of implied immunity from the laws and actions of the other. The Victorian Supreme Court did not favour this American idea. In the next case on this issue, Deakin v. Webb (1904), it stepped around the High Court decision and once again declared that federal public servants were subject to state taxes; in doing so, it followed what it thought were binding Privy Council decisions on the point. On appeal, the High Court stuck to its previous decision in D’Emden v. Pedder and overruled the Supreme Court. All the state premiers supported an application for appeal to the Privy Council in this case, but the High Court judges refused to give permission under section 74 of the constitution. When the question arose again in the Victorian Supreme Court, it followed the High Court, but the state government then appealed directly to the Privy Council. In doing so, it bypassed the High Court and the section 74 procedure for appeals to London. The Privy Council rejected the High Court’s notion of implied immunities, and purported to overturn the High Court view (Webb v. Outrim (1906)). According to the first High Court, whose members had helped to draft the constitution, the Privy Council in Webb v. Outrim was trespassing on the High Court’s exclusive ground in inter se matters. The extensive appeals to the Privy Council had only been included at the insistence of the British government, and now there was an attempt to take them even further. In the next case in this series, the High Court extended its immunities doctrine by saying that it also protected the states against commonwealth power (the Railway Servants case (1906)). The High Court judges knew that the Privy Council had decided against the immunities doctrine a few days earlier but chose to deliver their judgment anyway. The next time the High Court faced this question, there could be no hiding behind a pretended ignorance of the Privy Council view. Instead, the court simply declared that it was in control of inter se questions and refused to follow the Privy Council (Baxter v. Commissioners of Taxation (1907)). There were five High Court judges by then, two of them opposed to the idea of implied immunities. However, one of the dissenters, Isaacs, thought that Privy Council decisions on inter se questions should be ignored. Chief Justice Griffith summed up his view in one powerful passage. In establishing the Australian constitution, he said, the intention of the British legislature was to substitute for a distant Court, of uncertain composition, imperfectly acquainted with Australian conditions, unlikely to be assisted by counsel familiar with these conditions, and whose decisions would be reached many months, perhaps years, after its judgement has been invoked, an Australian court, immediately available, constant in its

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composition, well versed in Australian history and conditions, Australian in its sympathies and whose judgements, rendered as the occasion arose, would form a working code for the guidance of the Commonwealth.33

The implication of these cutting comments was that Australia did not need a Privy Council to tell it what to do. The commonwealth parliament supported the High Court by amending the Judiciary Act in 1907 to ensure that the High Court had exclusive power on inter se matters. If there were no Supreme Court decisions, there could be no appeals directly to the Privy Council. This was the end of the conflict, which the High Court won in a great victory for Australian judicial independence. From that time, these matters were controlled by the High Court, even if other constitutional questions were not. The final step for the High Court to take was to declare that the commonwealth parliament had power to abolish Privy Council appeals entirely. It virtually did this in the 1920s, 40 years before parliament began the abolition process. Michael Coper says that the Privy Council made no lasting contribution to the development of Australian constitutional law. Even when it overruled the High Court, it often adopted a strong minority High Court view. In some cases, it just added further gloom to the fog of principles surrounding the key sections of the constitution. At times this angered the members of the High Court, who accused the Privy Council of misreading history and legal authority. In James v. Commonwealth in 1936, it overruled the High Court on section 92, but confused things even further in doing so. Lord Wright confessed twenty years later that the Privy Council had been wrong in this case, and said that if ‘we had really appreciated how difficult it was to amend your Constitution we would no doubt have looked a little harder at that case’.34 The section 92 cases affected the power of the state and federal governments to regulate Australia’s internal trade, and the Privy Council’s unpredictable legalism frustrated government policy in a way that could never have occurred in England. The Privy Council was even more deeply involved in Australian politics in the Bank Nationalisation case in 1949.35 The usually reformist Australian Labor Party made a grand leap for socialism when it passed a law to nationalise Australia’s private banks, but as with its social welfare legislation of this period, it was frustrated by the High Court. The constitutional challenge to the Act was led by Garfield Barwick, who was opposed by Evatt, at this time the commonwealth Attorney-General; High Court judges from different generations faced one another at the bar table. The High Court struck down Labor’s nationalisation Act by a majority of four to two, the key issue being section 92. The majority used the free trade section as a charter of individual commercial liberty, which obviously suited the Liberal Party at the expense of Labor. Even legalism’s strongest sup173

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porters have difficulty in describing this decision as a neutral application of legal principle. The Labor government appealed to the Privy Council, but lost; the Privy Council decided that it was an inter se matter, which it could not properly hear without the High Court’s approval, but it proceeded to uphold the High Court decision anyway. Gough Whitlam complained in 1954 that the Australian Labor Party was much more constrained than the British and New Zealand labour parties; it had to get its legislation past judicial review under the constitution.36 The values of the judges overrode those of elected governments. Judicial review has also frustrated conservative governments at times, although much less often than Labor governments. In 1951 the High Court declared that the federal Communist Party Dissolution Act was unconstitutional because it was outside the terms of the defence power.37 This repressive legislation would have given the Liberal government an unlimited discretion to name supposedly subversive people and bar them from holding office in vital industries. Like the old Bushranging Act, this would have forced people to prove their innocence, a strange stance for nominally liberal politicians to take. Barwick faced Evatt in court again, but this time he lost. The High Court resisted cold war hysteria; Chief Justice Latham was alone in incredulous dissent. This case did not go to the Privy Council.

A R B I T R AT I O N A N D T H E E M P I R E O F S T R I C T L AW Many of the great constitutional cases in Australia concerned attempts to limit industrial arbitration.38 The Railway Servants case (1906), the Engineers case (1920), and the Boilermakers case (1956) were all decided on fundamental constitutional principles. In the Railway Servants case the High Court decided that state employees were not subject to federal arbitration laws. In the Engineers case, however, it held that federal arbitration was applicable to a dispute between unions and state government authorities; in reaching this decision it abandoned the old ‘implied immunities’ doctrine, stressing that the constitution ought to be interpreted as if it were an ordinary statute. Supposedly neutral legalism was to be the guide in these essentially political judgments. In the Boilermakers case the court showed its hostility to the industrial relations system when it forced it to be split apart. Its judicial functions were separated from its conciliation and arbitration functions, on the ground of the necessity to separate judicial and executive powers. The courts were to be protected from confusion with mere tribunals. Even when the High Court was not overtly hostile, its legalism nibbled away at the arbitration system. The vagaries of constitutional interpretation gave great scope to judges who opposed this alternative method of legal decision making. Judges often claim that they have no discretion, that they 174

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are bound to act as they do. This is the defence of neutral legalism that Dixon put so strongly, the argument that the judges act legally in constitutional cases, not politically. In fact, words are so manipulable and the supposed science of judicial reasoning so fluid that judges often have a broad range of possible choices, as the conflicting constitutional decisions show. Arbitration laws were frequently restricted by apparently neutral constitutional interpretation. What is really at stake in many of these cases is pluralism, whether we have one or many kinds of law in Australia. Some judges are as arrogant about the assumed superiority of their version of legal thought as the British empire’s legal officers were in the nineteenth century. This is the current battle about imperialism, the fight within Australia over the empire of strict law.

REMNANTS OF IMPERIAL RESTRICTIONS The principal restriction on parliamentary law making in the twentieth century has been the Australian constitution rather than the remnants of the British empire. Royal assent is still required before an Act of state or federal parliament comes into force, but to nationalists and republicans this is more an insult than a practical obstacle. The governors are more likely to dismiss a government than to refuse to endorse its legislation. The only serious imperial barrier to Australian legislation in the twentieth century was the Colonial Laws Validity Act 1865, under which the paramount force legislation of the imperial parliament still bound both state and federal parliaments. This was more than a theoretical and symbolic problem. As shown earlier, there really were British statutes that applied in Australia, which neither state nor federal parliaments could repeal. British shipping law and military discipline, for instance, were still binding on the federal parliament. This was the last practical remnant of imperial restrictions on Australian legislation, evidence that Australia was not yet a fully independent nation.39 Once again, imperial legislation was needed to remove an impediment to complete legal independence in Australia. The Statute of Westminster, passed in 1931, recognised the dominion status of Australia, that it was an independent legal community within the British empire. The statute authorised the commonwealth parliament to release itself from the bind of paramount force legislation. Once it was adopted, the imperial parliament would make no more Acts covering the dominions (such as Canada, New Zealand and Australia) except at their request, and the Australian federal parliament could amend or repeal any British paramount force Acts. The only exceptions to this new power of the Australian parliament to repeal imperial legislation were the Australian constitution itself and laws within 175

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the states’ area of operations. The extent of the latter restriction was a question of great complexity. The commonwealth parliament was in no hurry to seize its independence after 1931. It took the threat of British control over Australia’s armed forces to prompt it to accept the powers granted under the Statute of Westminster. It passed the Statute of Westminster Adoption Act in 1942, with retrospective application to the beginning of the Second World War. After then, the paramount force statutes operated rather like ordinary British Acts applicable in Australia. They remained in force until they were repealed by the commonwealth parliament. Sometime between 1931 and 1950, it was recognised that Australia was an independent nation in international law, able to make treaties on its own behalf. It is remarkable that the law does not date such an important event precisely—although typical of our creeping legal independence.40 Strangely enough, the states did not gain their complete legislative freedom at the same time. Unlike the provinces of Canada, they left themselves out of the Statute of Westminster. This was because of the state governments’ curious fear that the statute might have strengthened commonwealth power over them, and because Western Australians thought that imperial legislation might be needed in its secession case of the time. The states, hoping to play Canberra off against London, condemned themselves to another half-century of formal colonialism. They remained in this position of colonial dependence, still subject to paramount force legislation, until 1986. This does not mean that state Acts simply reflected the statutes of England until the 1980s. Sometimes they did, on basic matters such as sale of goods or tort law. In many cases, however, and especially in the last couple of decades, state and federal legislatures have taken paths that are quite different from England. In consumer law, for instance, America has been a more fruitful model than England, and many locally developed legal ideas have also been enacted. For example, an elegant New South Wales Contracts Review Act 1980 has become a model for the legislation of the other states and the commonwealth; its English counterpart, the Unfair Contract Terms Act 1977, is much clumsier. The legislatures, lacking the conservatism and authoritative limits of the judges, have been more innovative than the courts. They have been supported by the state and federal law reform commissions, which have examined precedents from all over the common law world before recommending new statute law. There was no practical or legal impediment on this; the days of British concern about Australian legislation had passed.

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T HE REBIRTH OF

AUSTRALIAN LEGAL DOCTRINE, 1960–1995 THE REBIRTH OF AUSTRALIAN LEGAL DOCTRINE

THE SLOW STEPS TO INDEPENDENCE Chief Justice Dixon, the self-declared strict and complete legalist, made one of the great pronouncements that led to the independence of Australian law. In 1963 he stated that the English House of Lords had made an error in a criminal law decision and that the High Court no longer felt bound to follow it (Parker v. R.).1 Under his successor, Garfield Barwick, the court took the next step in 1966, when it declared that it was not obliged to follow the House in civil cases either (Skelton v. Collins). At the same time, the High Court told the state courts to follow its decisions rather than those of the House of Lords. The House was the highest court in England, but its decisions would no longer be treated as if they were scripture. The structure that bound Australian law to that of England, combining imperialism and legalism, had received a fatal crack.2 This was only a beginning for Australian judicial independence. The trickle-down theory remained alive because it was still possible to appeal from the High Court to the Judicial Committee of the Privy Council, which meant that all Australian courts remained bound to follow Privy Council decisions. However, the strict notion of precedent was beginning to unravel. Even the House of Lords declared in 1966 that it was no longer bound to follow its own decisions. The notion of law as a science was coming to an end. The commonwealth parliament took the next major step when it abolished appeals from the High Court to the Privy Council. Under the nationalist Prime Minister John Gorton, it ended appeals on constitutional and federal law matters in 1968. The Whitlam Labor government went further in 1975, when its Act abolished nearly all other appeals from the 177

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High Court to the Privy Council. All that remained were those under section 74 of the constitution on inter se matters, which require the High Court’s consent. At last the High Court was free of the imperial yoke, free to make its own law. This did not liberate the state courts from imperial control, though. The 1968 and 1975 Acts did not affect the state Supreme Courts, and so it was still possible to appeal directly from them to the Privy Council. These cases included most matters that affect ordinary people, such as criminal law, torts and contracts. Australian common law could still be made in London after 1975. From then until 1986, when Privy Council appeals from the states were abolished, Supreme Court litigants could appeal either to the High Court or to the Privy Council, depending on which was more likely to favour their case. It was a bizarre situation: Australia had two supreme appeals courts in this period, two summits of the one judicial pyramid. The High Court’s next declaration of its own autonomy accentuated this. It stated in 1978 that it would no longer be bound to follow the decisions of the Privy Council (Viro v. R.). This was a logical consequence of the end of appeals from it to London, an assertion of the High Court’s independence. It was quite conceivable, however, that the Privy Council and the High Court would disagree on a common law issue, and both would bind the state Supreme Courts. The High Court’s solution was simple: Chief Justice Barwick advised the state courts to follow the High Court whenever its decisions were in conflict with the Privy Council. This could have led to a showdown between the two summits, but the Privy Council would not necessarily enforce its power. In Australian Consolidated Press v. Uren (1967), the High Court decided that it would not follow a House of Lords decision, which restricted the award of punitive damages. On appeal in 1969, the Privy Council let the High Court get away with this and refused to overturn its decision. To the dismay of imperial conservatives such as Lord Hailsham, the Privy Council had recognised that there was more than one common law in the British commonwealth. In some of its later cases the Privy Council tried to reassert the single common law theory, and the High Court seemed to assume the same thing as it periodically fell back into the arms of English propriety. From the Uren case onwards, there was an oscillation back and forth between these two views, between strict law and justice, between innovation and deference to the one London-controlled common law of the empire. There were trends as the courts slid up and down these overlapping scales, but no simple leaps from one end to the other. At times the Privy Council showed a woeful ignorance of Australian law, such as when it made the blunder of stating that the commonwealth had no legislative power over criminal law (Oteri v. the Queen (1976)); it failed to notice the 178

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very well known commonwealth Crimes Act. This did not help its case for imperial omniscience. The Uren case was part of the slow collapse of the trickle-down theory of judge-made law. The unitary notion had only ever been a theory, an imperial aspiration, and now it was disintegrating even at a formal level. This change began with the High Court’s occasional refusal to obey English authority, and parliament followed its lead in its Privy Council abolition statutes. The slow death of the empire was written in its legal theory. By this time Britain had begun looking to Europe, but Australian lawyers did not know quite where to look. Queensland’s Premier Joh Bjelke-Petersen knew where he wanted to look, and it was not towards Canberra; he wanted to keep close to the mother country even if she was no longer certain she wanted him. His one-house parliament passed a special Act in 1973 to ensure the continuation of appeals from Queensland to the Privy Council. Joh would save Queensland from the socialists in Canberra by ensuring that there would continue to be a queen of Queensland and a link to the men in Downing Street. The High Court unanimously declared, however, that the appeal provisions in this Act were invalid because they conflicted with the commonwealth constitution on inter se matters. Bjelke-Petersen’s main concern in his conflict with Prime Minister Whitlam was the relationship between the states and the commonwealth, but the High Court said that this question was peculiarly suited to decision in Australia. State law matters, however, would still be subject to appeals directly to London, regardless of Canberra’s actions. Bjelke-Petersen’s Act was both useless and invalid; he was pining for an empire that had already collapsed.

LEGALIST CHIEF JUSTICES Despite these changes, both the Chief Justices between 1964 and 1987 were legalists. In 1964 there was no controversy when Garfield Barwick was appointed to the court by a Liberal–Country Party coalition government from within its own ministry. He had been a mildly reformist Attorney-General who supported anti-monopolies legislation. He was also president of the Australian Conservation Foundation even while he was Chief Justice. Like Harry Gibbs, who succeeded him in 1981, Barwick found opposition on the High Court bench. A new method of legal reasoning was growing, with corrosive effects on the links between Australian and English law.3 G A R F I E L D B A RW I C K The historic declarations that the High Court felt free to override House of Lords and Privy Council decisions were not immediately matched by 179

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the court’s actions. After 1966 the High Court retreated into its shell, according to some writers, often reaching English-style decisions using traditional methods. In 1978, for example, it held that the old common law rule of felony attaint was still good law in Australia (Dugan v. Mirror Newspapers).4 As a result of this, the court stopped a prisoner from suing a newspaper for defamation. One hundred and fifty years after the Eagar decisions, the High Court held that ancient attitudes to the civil death of felons were still binding. This decision had only strict adherence to the common law to commend it. After the Eagar cases, the nineteenth-century courts found a way to get around these rules, but the High Court of the 1970s did not. Darcy Dugan had less civil freedom than most of the convicts who had been transported to Australia. These were not entirely conservative years. In 1977, for example, the High Court made a great compassionate decision in a personal injury case, awarding damages to a quadriplegic plaintiff for the nursing services provided to him for free by members of his family (Griffiths v. Kerkemeyer). The decision was based on a recent English Court of Appeal precedent. Even though the activist Lord Denning did not sit on that particular case, this was a very reformist period for the Court of Appeal and there was nothing doctrinally conservative about Australian courts following its decisions. During the Barwick period the High Court’s deference to English authority slowly diminished. The attitude of Barwick himself to the House of Lords moved from expressions of ‘unfeigned gratitude and respect’ (1968), to ‘utmost respect’ (1972), to ‘great respect’ (1978) and eventually to a determination to see whether foreign declarations of the common law were accurate, without expression of respect.5 He became a legal nationalist while retaining his political and social conservatism. His legalism was a mask for what he wanted to do rather than a restriction on it. Under Barwick, the High Court sometimes went well beyond English law, as, for example, in its decisions on liability for negligently caused non-physical loss. In Caltex Oil v. Dredge ‘Willemstad’ (1976) it expanded a small crack in English law. The common law in England generally opposed the recovery of damages in tort for purely financial losses caused by negligence, but the High Court expanded a small English exception into a general rule in favour of this kind of action. The Privy Council rejected the Caltex reasoning in 1986, but by then it was irrelevant to the development of Australian law (Candlewood Navigation v. Mitsui O.S.K.). The High Court has rewritten the Australian law of torts since Caltex, regardless of the views of the English courts or the Privy Council. The Barwick court’s decision was a major step along this new road. Within any High Court there has always been a range of views, and Barwick himself was at one extreme in his own court. Like Dixon, he 180

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proclaimed the virtues of legalism. He claimed that the United States Supreme Court was inevitably drawn into political issues because it was required to interpret that country’s Bill of Rights. Australia had no Bill of Rights, so the Australian High Court had no political questions to decide, went Barwick’s extraordinary argument. Its work was ‘strictly legal’ and its technique was ‘legalistic’, he said. It decided matters in a neutral manner, giving words their natural meaning regardless of the political or social context of the case.6 THE

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The hollowness of these claims was shown in the High Court’s tax decisions during the Barwick years.7 In the infamous Curran decision in 1974, it upheld an artificial tax-avoidance scheme, allowing smart lawyers and accountants to assist their clients to avoid paying their share of the costs of government. The parliament was required to add more and more sections to the tax legislation to fill the gaps that the High Court permitted lawyers to invent in this and other cases. These tax decisions became an embarrassment to the Liberal government as well as the High Court, which no hiding behind legalism could avoid. Soon after Barwick retired in 1981, parliament declared that the courts should look for its intentions when interpreting legislation. At about the same time, the High Court began to move in the same direction. Lionel Murphy called the Barwick court the ‘tax-avoider’s temple’ but thought that it had changed by 1983.8 By 1989 it was very clear that it had; in that year it overruled Curran and, with it, the highly technical interpretations of the tax legislation (John v. Commissioner of Taxation). The court’s aim when interpreting legislation was now to give effect to parliament’s intentions, not to interpret words narrowly and literally. This seems to be an obvious approach for an unelected court to take in a democracy, but it is not one the Barwick court had taken in tax cases. Barwick used more than legalism to justify his tax decisions. In his final appearance as an advocate at the Privy Council he had, not surprisingly, failed to convince Lord Denning to take a technical approach to tax law. Barwick felt that citizens had a right to structure their affairs to avoid tax. Unlike Murphy, he thought that there was nothing immoral about doing so, even if it meant a shift in the tax burden from the wealthy and greedy onto the poor and the scrupulous. There was more to this than liberalism; Barwick felt that tax was positively evil. In his judgment on a personal injury case in 1980, he said that ‘The community appears already to be aware that the level of income tax has become destructive of initiative and effort and, further, has had a tendency to undermine much of the sense of moral rectitude on which a community so much depends’.9 181

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Conservative judges are rarely so candid. Legalism usually hides extreme attitudes like this. H ARRY GI BB S Harry Gibbs, Chief Justice from 1981 until 1987, was a cautious judge. He was a good choice for a conservative government in 1981: he had been a judge for twenty years, and he did not have Barwick’s connection with the dismissal of the Whitlam government. Like the replacement of Kerr by Zelman Cowen as governor-general, the government hoped through the promotion of Gibbs to put the dismissal at rest. There is no reason to doubt the sincerity of Gibbs’ belief that legalism is a neutral process, which does not involve the values of the judges who use it. Many judges are offended by the suggestion that their decisions may be influenced by their own deeper values, seeing it as an attack on their professionalism. That misses the point of the analysis, which is that legalism sometimes hides the role of the judges’ values even from themselves. Gibbs, however, was aware of this version of the argument, but he rejected it in an article published in 1990. He apparently felt that it is improper for judges to be influenced by their own beliefs, even unconsciously. Gibbs was not a rigid legalist; he said when he was sworn in that the court should ‘develop the law in a way that will lead to decisions that are humane, practical and just’,10 but that it could not replace legal principles with its own social and political theories. That is, he was a legalist in the mould of Chief Justice Dixon. His period in office was a healing one for the High Court, and a time of transition. Strict legalism, in the sense of technical reliance on received doctrine regardless of justice or its appropriateness for Australian society, was on the wane by 1981. Even the Liberal Attorney-General in that year, Senator Durack, called for a greater lawmaking role for judges. The High Court clearly did make law in a personal injury case soon after Gibbs became Chief Justice. The common law approach to assessing damages for those who are severely injured is to give a single lump sum to cover all past and future losses. Most judges think that claimants have an advantage in getting compensation for their future losses in advance, and so they discount the total sum to remove this assumed advantage. By 1981 the disagreements among Australian judges over the appropriate discount rates were so great that the High Court set one binding rate of 3 per cent. This was a pragmatic decision, a piece of pure judicial legislation, which Gibbs summarised in words that look just like an Act of parliament (Todorovic v. Waller (1981)).11 At other times, however, the Gibbs High Court took a strict attitude both to the common law and to the interpretation of anti-laissez faire legislation. One of the lasting legacies of the Whitlam government is the 182

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Trade Practices Act 1974, which includes a modern code of consumer protection. Its key provision is section 52, which prohibits misleading conduct in trade; those who contravene it are liable to pay damages to anyone who suffers ‘loss or damage’ as a result of the breach. Under Barwick and Gibbs, the High Court allowed this law to become less a form of protection for consumers than a new method of protecting businesses against one another. It read down the Act to the disadvantage of consumers who actually tried to use it. This was the awful fate of the plaintiff in Gates v. City Mutual Life Assurance Society Ltd in 1986. Jeffery Gates was a self-employed builder who took out an accident insurance policy. The agent told him that he would be insured against any injury that prevented him from working as a builder. In fact, the policy covered him only if he was so badly hurt that he was unable to work in any occupation. He had been misled, which was a clear breach of section 52. After he was injured, he was able to work in some occupations but not as a builder. He sued for the breach of the Trade Practices Act, claiming the amount he would have received if the agent’s assertions had been true. In 1986, only a year before Gibbs retired, the High Court decided that Gates had suffered no ‘loss or damage’ through the agent’s breach of the Act. The judges looked at the common law to discover what those words meant and decided that they should treat section 52 as if it were a tort. In tort, there are no damages for the loss of expected benefits, so Gates lost his action. This was a very narrow decision, one that paid little attention to the consumer protection purposes of the legislation. The judges who held against Gates included Mason and Wilson, both of whom would soon be involved in a drastic change of judicial direction. The Gates case is something of an aberration, because the High Court’s change of approach was becoming increasingly obvious by 1986. Adverse reactions to its extreme position on tax avoidance may have been partly responsible for this new direction, in which the court was moving so far from the legal strictness and extreme economic liberalism of Barwick. It was becoming less legalist, more inclined to examine the purpose of legislation, and more willing to reject English precedents and look to other countries for guidance. This change has had a profound effect on the relationship between English law and Australian law. This does not mean that Australian lawyers have entirely lost the habits of 150 years. The High Court delivered 133 decisions on contract law between 1975 and 1985, in which it referred to 2037 cases. Of them, 54 per cent were English, 39 per cent Australian and only 7 per cent from other jurisdictions. Between 1983 and 1987, 65 per cent of the precedents ‘judicially considered’ by the court in all cases were Australian, but English cases dominated the rest: of the foreign cases, 397 were English, 16 Canadian, 7 from the United States and 6 from New Zealand.12 This does 183

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not show that Australian courts necessarily used these precedents in the same way as the English. To see what they did requires a much more subtle form of analysis. The figures do show, however, that when Chief Justice Mason took over the High Court in 1987, he inherited a deeply ingrained tradition of deference to English precedents, which was only beginning to change.

LIONEL MURPHY Lionel Murphy was a harbinger of these changes, whose judicial career spanned the Barwick and Gibbs High Courts.13 Appointed to the court by the Whitlam government in 1975, he died in office in tragic circumstances in 1986. He is the most controversial of all the High Court judges, the only one to face the serious possibility of being removed from office. There was uproar over his appointment, as there had been in 1930 over Evatt and McTiernan. Murphy had been a fiery federal Labor Attorney-General, but a successful one. He steered two of the most important Acts of the twentieth century through the federal parliament: the Trade Practices Act 1974 and the Family Law Act 1975. He had little in common with Barwick, whose appointment by a Liberal government in similar circumstances had been treated so calmly, and who suffered much less than Murphy for their supposed sins (Barwick’s over his secret role in the Whitlam dismissal, and Murphy over his unproved little mate). The controversy of the Whitlam government clung to Murphy long after the other members of that government had retired or retreated to the opposition benches of parliament. The antagonism to him was based on more than his political background, however. His judicial work was castigated. Justice Murphy attacked strict legalism, opposed the slavish use of precedent, wanted to make the law less subserviently English, looked for the parliamentary purpose behind the legislation he was required to interpret, quoted Australian authors and American precedents, and was open in his policy preferences. He admitted that judges make law according to their own social values. He even dared to make a joke about his attitude to precedent: in 1980 he said ‘the doctrine of precedent, one of my favourite doctrines . . . I have managed to apply it at least once a year since I’ve been on the Bench’. He went on to say that it was quite suitable to a nation of sheep.14 He wanted to adjust the law to meet modern Australian circumstances. He was an adaptor of the inherited legal tradition of England, not an empty vessel through whom it passed unchanged. In none of this was he unique, although in his candour and in combining all of these attitudes in one person perhaps he was. Appointed just as the belief in legalism was collapsing, he came to be a despised symbol of change among those who opposed change. His legal techniques aroused as much hostility as his 184

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decisions themselves. The common law is as much a method of operation or language as it is a set of recognisable rules, and Lionel Murphy worked on the outer limits of this method, at the extremes of the language. He spoke law with such a broad accent that many thought it was not a recognisable legal language at all. In his willingness to adapt the common law to Australian conditions, he acted in accordance with an Australian tradition that was almost 200 years old. This adaptation does not damage the common law; flexibility is its essence, its strength. If Murphy had been appointed to the court ten years later he would have been much less noticeable, more often in a majority, less vulnerable to the supporters of strict legalism. On many points, particularly in constitutional law, Murphy ran his own race. He was alone when he said, by analogy with a decision of the United States Supreme Court, that the words ‘directly chosen by the people’ in the Australian constitution require equal representation in the House of Representatives (McKinlay (1975)).15 Similarly, he dissented while following American law in the DOGS case in 1981; he thought that the constitution prohibits state aid to church schools. He also held that section 92 is concerned only with customs duties on state trade; this would have allowed state and federal governments much greater scope for regulating trade. Most importantly, Murphy held in Bistricic v. Rokov (1976) that all British Acts regulating the imperial–colonial relationship ceased to operate when the Australian constitution came into force in 1901. Australia became an independent sovereign state at that time, he said, and the legitimacy of its constitution was based solely on its acceptance by the Australian people, not because it was an Act of imperial parliament. For similar reasons he thought the Privy Council had no right to hear Australian cases after 1901, and that the British parliament had no right to pass laws affecting Australia. The majority of his fellow judges in Bistricic explicitly refuted this argument, holding that there was a clear intention at the time of federation that British Acts would continue. In this case, Murphy’s nationalist law-making ran ahead of his history, as was shown in chapter 8. Australia’s position was an ambiguous one in 1901, half colonial and half independent. This is not to say that Murphy was always on the outside of the court, a constant dissenter. He was in the majority in many cases, and on some issues he seems to have convinced the other members of the court to change. Soon after he joined the court in 1975 he began to point out in his judgments that catastrophically injured plaintiffs were severely undercompensated because of excessive judicial discount rates, which failed to take inflation into account. He argued in Todorovic v. Waller that judicial policies were transferring the costs of industrial and road accidents to their 185

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victims; this kept down the pressure to reduce accidents and thus contributed to the high rate of deaths and injuries, he claimed. His persistent campaign from the bench seems to have had an effect when the majority of the court agreed to set the figure at 3 per cent; it had been as high as 8 per cent. There was a vast difference between these rates, because they had a compounding effect. Even the compromise rate of 3 per cent did not satisfy Murphy. He and Ninian Stephen both dissented in Todorovic, saying that there should be no discounting at all. A great deal has been written about Lionel Murphy, but we need more. Together with biographies of Dixon and Mason, his is the one we need most. It should be a judicial biography, one that examines the background to his decisions and his general approach to the law. It ought to look at his relationships with all his colleagues on the bench, not just his conflict with Barwick. We do not yet know how much lasting effect his decisions have had.

END OF EMPIRE: THE AUSTRALIA ACTS 1986 All legal links with the British government, if not the queen, were finally broken on 3 March 1986. The parliaments of the states, the commonwealth and the United Kingdom all passed complementary Acts that ended imperial control over Australia. The federal and British parliaments enacted almost identical Australia Acts 1986.16 There is little real doubt about their legal validity, because they aimed to comply with both the Australian constitution and the British Statute of Westminster. In ensuring that they have both Australian and imperial validity, however, they reinforced the ambiguity about the source of Australian legal sovereignty. The most important change the Australia Acts made was when they ended the British parliament’s power to create Australian law. Section 1 says that no future Acts of the United Kingdom parliament shall extend to the commonwealth, states or territories of Australia; Britain abdicated its law-making powers. The Acts also gave power to the Australian states to repeal the paramount force Acts of British parliament. This finally put to rest the repugnancy doctrine that had dominated colonial relationships in the nineteenth century. In doing so, they ended the colonial status of the state parliaments, 85 years after federation and almost 200 years after the commencement of the European occupation of Australia. It was a very long legal infancy. The Australia Acts also abolished appeals from state courts to the Privy Council. The New South Wales parliament had attempted to end these appeals in 1979, but the federal and British governments refused to cooperate at that time. The British opposed it on the ground that all six states should act simultaneously—an unjustifiable interference in the sovereignty 186

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of the New South Wales legislature. The separate abolition attempts of Victoria and Tasmania also failed. When the states reached an agreement between 1982 and 1984, they went further than the earlier attempts: they agreed to sever all links with the empire, short of a declaration of a republic. Under the agreement, the Australia Acts ended the embarrassment of dual summits on the Australian judicial pyramid when they provided that there would be no more appeals from Australian courts to the Privy Council. The only exception was section 74 of the Australian constitution, on inter se matters. The High Court has stated that it does not intend to grant any more certificates under this section to allow the Privy Council to hear Australian cases. It is now in undisputed control of the judge-made law of Australia. The third major change by the Australia Acts was that they ended the British government’s role in the selection and control of the state governors. There would be no more absurdities such as happened in South Australia in 1967, when the British government was reluctant to appoint an Australian as the state’s governor, despite the premier’s support for him. A change of state government complicated matters, but so too did the arrogance of the retiring governor, a British army officer; according to the premier, the governor treated him ‘with all the courtesy of a British commander to an errant subaltern’.17 The Australia Acts also placed much of the royal power under Australian control. Under them, the queen may act personally only when she is physically present in Australia, or when appointing or terminating the governors. Even then, she must act on the advice of the state premiers. The Acts also terminated her power, which is to say the power of the British government, to refuse assent to Australian legislation. As well, they provide that only the state governments (not the government of the United Kingdom) can give advice to the governors. This does not remove all of the independent powers of the governors, who retain the authority to dismiss governments in extreme situations. From the Australian perspective, the federal Australia Act is a final recognition of legal independence from Britain, which places law making by both the courts and the parliaments in exclusively Australian hands. This is locked into place like the state or federal constitutions, with specially restricted amendment provisions. According to the British theory of absolute parliamentary sovereignty, however, the United Kingdom’s Australia Act, like the Australian constitutions themselves or any other British Act, can be repealed by a later British parliament. That is the lingering ambiguity of Australian law. This conclusion can be avoided only if the British Act is interpreted as an irreversible abdication of the United Kingdom’s legal power over Australia. 187

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Our basic legal institutions have been created by a foreign nation, so where does ultimate sovereignty reside? In Britain? In the Australian people? Despite their fundamental importance, the Australia Acts were not put to the Australian people for approval in a referendum. They are lawyer’s law, a matter of agreement between politicians, like the controversial patriation legislation in Canada. Limited as it is, the continuing role of the queen shows that the severance of ties with Britain is incomplete. The governors are still appointed by her and have divided loyalties between her and the Australian governments and people. The Australia Acts shifted sovereignty towards Australia, but its precise location is still uncertain. While Australia remains a monarchy, every state or federal Act is an Act of the Crown in parliament. The queen of the United Kingdom is not merely a decorative and nostalgic addition to Australia’s legal system; she is deeply embedded in it. The Australian constitution still describes the governor-general as ‘the Queen’s representative’. The declaration of an Australian republic, which would unequivocally transfer sovereignty to the Australian people, would be the final stage in more than 200 years of the creeping, oscillating, contradictory trend towards Australian control over its own law making. Even the abolition of the monarchy would not necessarily end the internal empire of English law, since most Australian lawyers still retain an ingrained deference to English precedents. This is especially evident in the state Supreme Courts, despite exceptions such as Michael Kirby, the President of the New South Wales Court of Appeal. When he suggested to a barrister Mr Meagher, who was later appointed to the same court, that a Florida Supreme Court decision was directly relevant to a point of law, Meagher replied ‘Your Honour is such a tease’.18

T H E N E W M A K E R S O F A U S T R A L I A N L AW The Australia Acts accelerated the High Court’s development of a distinctive Australian common law.19 The court declared in Cook v. Cook20 in 1986 that the final abolition of Privy Council appeals meant that no Australian courts should in future feel bound by English judicial decisions. English case law should be treated as useful, it said, but no more so than that of any other great common law countries. Under this, decisions of the English Court of Appeal are only as persuasive as those of the Supreme Courts of Canada, New Zealand or the United States. Australia was now perceived as legally independent, developing its own law but not in isolation. This was the clearest sign of legal and cultural maturity: the decisions of other countries were neither adopted nor rejected automatically. Australia was perceived to be a distinctive part of a broad common law tradition, just as its history is now seen as a product of the clash of local and foreign influences. 188

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The court qualified this firm statement of legal independence in Cook v. Cook by a ‘perhaps’, which referred to the ‘special position’ of the House of Lords’ decisions made in the period before the abolition of appeals to the Privy Council. This curious ambivalence was no more than a hesitation on the High Court’s road to a dramatic change in the relationship between Australian and English judge-made law. Once its rival was knocked off the top of the judicial pyramid in 1986, the High Court began the strongest period of judicial law making in its history. Anthony Mason replaced Harry Gibbs as Chief Justice of the High Court in 1987. Originally appointed to the court by a conservative government in 1972, he was promoted by a Labor government. He does not come from a Labor background; once close to Barwick, Mason campaigned for him when he was running for parliament. As judge of the High Court, he also played a small role in the dismissal of the Whitlam government, when Barwick showed him his advice to Kerr before he delivered it to the governor-general. That does not worry Whitlam much, who now claims that Mason is the only Chief Justice in his lifetime who is adequate in both national and international terms.21 Something happened to Anthony Mason between 1972 and 1995. He became the most creative Chief Justice in Australian history. Like his colleagues, Mason’s approach to judicial law making has changed in his two decades as a member of the High Court. One of the many things that distinguishes him as Chief Justice is his willingness to talk and write about the judicial process. He indicated his new approach even before he became Chief Justice. In a speech in 1985 he attacked the legalist claim that decisions are made by the application of objective legal rules to the facts of the case, without any involvement of the subjective values of the judge. It was impossible for a judge to do that, he said, because those values are necessarily involved in the interpretation of constitutions and other documents. He argued that judges should expose their underlying values so that they can be shown to be those of the community and not merely idiosyncratic. ‘Strict and complete legalism’ was a mask for undisclosed policy values, said Mason, and when combined with a strict notion of precedent it had a subtle and formidable conservative influence. If values were not exposed when the first court created a rule, they would be buried when the original case was followed, year after year. He also advocated policy-oriented constitutional interpretation, with greater emphasis on the purpose of the Act in question. This would enhance the open character of judicial decision making and make it more comprehensible to the general public. This was an assertion of the legal realism which was so prominent in Australia’s university law schools from the 1970s onwards. Mason applied the same kind of argument to the common law in a heavily reported speech 189

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in 1994. He said that the claim that judges merely discover and apply the law was like a fairy tale. He went on to say that It is no longer feasible for courts to decide cases by reference to obsolete or unsound rules which result in injustice and await future rules at the hands of the legislature . . . There is a growing expectation that courts will apply rules that are just, equitable, and soundly based except in so far as the courts are constrained by statute to act otherwise. Nothing is more likely to bring about an erosion of public confidence in the administration of justice than the continued adherence by the courts to rules and doctrines which are unsound and lead to unjust outcomes.22

That is, he felt free to reject obsolete and unjust English common law. It was one thing for an academic to reach legal realist conclusions, but quite another for the Australian Chief Justice, according to his critics. Harry Gibbs spoke for most previous judges when he propounded the fairy tale in his 1990 article, but Gibbs had retired by then. Barwick also criticised the Mason court’s purposive constitutional interpretation, calling it ‘laughable’.23 The more serious objection to the High Court’s new approach to precedent was that it led to anti-democratic judicial legislation. This was the main criticism of the court’s decisions in Mabo (discussed below) and the Political Advertising cases (in which it found that federal laws restricting political advertising just before an election were in conflict with an implied constitutional right to free speech).24 These and other decisions by the Mason court led to continuing uproar in the media by conservative politicians and commentators. Critics described the High Court’s judges as ‘Murphyites’ (as if that is a criticism) and as ‘Revolutionaries’. Their focus was as much on the High Court’s methods as its results. It was accused of acting politically, legislatively and without accountability.25 Why then, according to Mason, was this not merely legislation from the bench? For one thing, he argued, judges are required to speak in objective and principled terms, by which he meant reasons that deal fairly and impartially with competing considerations, resting on general principles. This is an argument that the language of law is different from the language of politics, that judges work by analogy from the rich ambiguity of precedents to find and create general legal principles which can later be used in other cases. Under Mason, there is no doubt that the High Court does do this, as it always has. Its judgments could hardly be confused with extracts from Hansard. They constantly refer to case law, and only overturn the court’s own precedents after careful thought. In an interview published in 1993,26 Mason also argued that judicial law making is different from legislation because the courts have no agenda of their own. Although the High Court now decides which cases it will hear, it can only select from the cases that are presented to it. Unlike politicians, 190

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the courts cannot avoid a question when it is put before them. The parliaments are obviously happy to leave some issues for decision by the courts, he argued, Mabo being an interesting example. Ultimately, he said, parliament can overrule the courts but not the reverse. To him, this is the final limit on judicial law making, although no more important than the obligation to remain within acceptable legal technique. Parliament does not control the words of the constitution, however, which means that the High Court’s interpretation of it is usually final. Mason has to meet the argument that the High Court has rewritten the commonwealth constitution rather than merely interpreting it. He argues that the constitution is merely a broad framework for government and must be adjusted as social and economic conditions change; it should be read according to current conditions, rather than those of the 1890s when it was drafted. This may not lead to historical truth, but it is a legitimate form of legal truth.27 Mason calls this a ‘dynamic’ approach to interpretation. One example of current conditions is the much greater international role of the Australian government, which, he says, the High Court should support. He also points out how difficult it is to amend the constitution through referenda; the implication is that if the court did not change it, no one would. Mason makes clear that in his view the Australian constitution is as much an expression of popular will as that of the United States, and should be interpreted accordingly. This is reinforced by his opinion of the Australia Acts. The federal Act was decisive, and the United Kingdom one merely confirmed it. He implies that such fundamental principles, expressions of the people’s will, cannot be interpreted like a Dog Act, as the narrow approach to statutory interpretation would have it. The popular sovereignty underlying the constitution is also a justification for the court’s decisions to overturn legislation. Mason was not the first judge to admit that the courts make law. In 1973, for example, Lord Reid called the declaratory view a fairy tale, as did Justice Kirby in 1983. Ninian Stephen, whose productive period as a High Court judge ended when he became governor-general, said in 1981 that the question was not whether judges make law, but whether they should do so by staying abreast, behind or ahead of public opinion. The significance of Mason’s speeches lies in his attempts to find an alternative to legalism. Whether he has succeeded is more a matter of jurisprudence than history, but the attempt to do so is very important historically.28 Another way to look at the current High Court’s recent actions is to see them as the greatest-ever experiment in law-making by Australian judges. We know what the High Court judges have done under Anthony Mason, but not yet exactly why, despite their attempts to explain their increased creativity. We need a biography of Mason, to draw out his values, tease 191

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out the relationships between the present judges, and place the whole astonishing enterprise in the context of growing Australian nationalism, the end of empire, and the collapse of more than a century of strict legalism. We know more about the legal history of the nineteenth century than we do about the twentieth. In particular, we need to know what role the Australian people have had in shaping recent changes to official law. Legal history can offer insights that go beyond the generally present-minded legal analysis of the law reviews. Especially since the end of legalism, law is most illuminatingly seen as a process of change. The new attitude is all the more striking when the backgrounds of the seven current members of the court are considered. Apart from a lack of political experience, they have had careers typical of High Court judges. Before appointment they were government lawyers, leaders of the commercial bar, and judges of state and federal superior courts. None of them has been a member of parliament. Only three were appointed to the court by a Labor government, not counting Mason’s promotion. Mason, Brennan and Deane were appointed by Liberal governments. One distinctive and possibly influential feature is that six out of seven have Catholic backgrounds. The one Protestant, Daryl Dawson, is generally recognised to be the most legally conservative. It is always difficult to generalise about individual High Court judges; terms such as conservative, radical, activist and legalist all need qualification if they are not to be more misleading than useful. The six more creative judges differ in their approaches to precedent, some being more cautious about discarding it than others. They also have differing attitudes to the importance of community values in their decisions. They have in common that they are all concerned not to destroy the common law method. This limits their choices, surprising as that may seem to their critics. Just as it is difficult to pin labels on each of the judges, it is not easy to say who are the most important among them. Mason is the most vocal outside the court, as his position seems to demand, but that does not mean that he is necessarily the most influential. Legal academics talk more about Mason, Brennan and Deane than they do about the others, which suggests that they are seen as the leading judges, but even that is misleading when one considers, say, the innovative judgment of Mary Gaudron in Trident General Insurance v. McNiece Bros (1988). The creativity of the present High Court judges, and the differences between them, can be shown through discussion of some of their decisions. Ask ten legal scholars which is the most innovative decision of the court since 1987, the one that moved furthest from English common law, and you are likely to get ten different answers. The court has changed the basic shape of constitutional law, contract law, torts, administrative law and many other areas. One academic lawyer, Linda Pearson, nominated Aus192

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tralian Broadcasting Tribunal v. Bond (1990), the case in which Alan Bond did all he could to avoid his company being declared unfit to hold the Channel Nine television licence. In it, she says, the High Court restructured administrative law away from the English model; in doing so, it limited the degree of judicial interference in the decisions of tribunals. This may seem dull until its effects on the empire of the common law are considered. As explained earlier in this book, the judges of the superior courts often try to impose their monolithic and technical view of law on those who legitimately decide disputes in different ways. The Bond decision is official recognition at the highest level of the pluralism that has been an important if sometimes buried feature of Australian law since 1788. Those with an interest in contract law are likely to nominate Trident v. McNiece as the High Court’s most innovative recent decision. The doctrine of privity is one of the basic principles of laissez faire contract law: the only people who can sue on a contract are those who are parties to it. This is justified by a form of liberalism which says that people are bound by agreements only if they agree to be so, and that a contract is formed only between those who pay for it. In Trident, an insurance company received premiums but refused to pay out on the policy. The insured company was not a party to the contract; someone else had paid the premiums. The question was whether the insured could sue the insurance company, and the court decided by a four to three majority that it could. Two of the four, Mason and Wilson, held that the vast bulk of contrary case law was mere sediment, which could be disposed of where it operated unjustly. The injustice here was starkly obvious. But this was not necessarily the end of the privity doctrine; the case’s effects might be restricted to insurance contracts, and one of the four majority judges decided it on a different basis. Justice Gaudron held that the insurance company had been unjustly enriched by accepting payments without paying out on the policy, and so allowed the insured to sue. A telling feature of Trident is that even the three dissenting judges were willing to mould the law to avoid injustice. They thought that privity was too well entrenched to be overturned, but they would have developed other principles, such as the law of trusts, to get around its restrictions. Trident is typical of many recent judgments. All the judges showed concern about injustice, yet all developed principled arguments within accepted techniques. They disagreed over the ways in which inequity could be avoided, not over whether it should be. None was happy to reach a hard decision and leave it to parliament to clean up the mess. The judges agree that the law should be shaped by them, using recognisably legal methods. Many other cases could be used to show the court’s recent innovations. In contract law it seems to be moving away from the strict laissez faire notions of late-nineteenth-century theory. It is sometimes willing to impose 193

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its own view of justice on contracting parties, rather than leaving the stronger one to force its position on the other. In tort, the court is breaking down the artificial barriers between diverse legal wrongs, developing the inherited English law on negligence into one supertheory. That is part of a general simplification of the common law, a process that has been going on since the time of Jeremy Bentham, but is now being carried out much more vigorously in the High Court than in the House of Lords. The weight of age bears down more heavily in the Palace of Westminster than in the vast building on the shores of Lake Burley Griffin in Canberra. The High Court is stripping legal sediment off the old common law of England, but in doing so, it has not just revealed some former, original shape; it has changed it in fundamental ways. This does not mean that the court is always activist or progressive. Its judges are very cautious with precedents in some decisions, and in one case they extended the laissez faire model of contract rather than restricting it (Hungerfords v. Walker (1990)). Despite this, it is clear that the distinctive feature of the present court is its attempt to change the common law to meet current Australian values and needs. The federal parliament recognised this in 1988, when it altered a reference in the Judiciary Act 1903 from the ‘common law of England’ to the ‘common law in Australia’.29 Like Lionel Murphy, the Mason High Court is operating within a 200-year-old Australian tradition of adaptation of inherited law. The first civil case in Australia was based on a rejection of a fundamental rule of English law, felony attaint. In that case in 1788, David Collins was the first of many who changed English legal principles to meet local needs. Atkins, Forbes, Evatt and even Ellis Bent and Dixon all played important roles in this. They varied in their enthusiasm and consciousness of what they were doing, and in their justifications for doing so, but they were all makers of Australian law. The present High Court is one of the most creative courts in Australian history. There is not one Francis Forbes or Richard Atkins on the bench, but six. They may be the most impressive collection of intellects ever to sit in the same Australian court. Effective judicial creativity requires compassion, a deep knowledge of the law, and imagination. This is not to say that anyone is likely to agree with all of their decisions. They are the decisions of seven relatively wealthy white people from relatively privileged, English-speaking backgrounds, and that must influence their perceptions of community values. However, those who are concerned to see the common law adjusted to meet contemporary Australian norms and conditions must be satisfied with the overall direction of the court’s work. It has taken the 200-year-old tradition of independent law making further than any court since the frontier period of colonial law. The remoulding of the common law is incomplete, but some of the High 194

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Court’s changes may be irreversible. If Anglophile legalists swamp the court in future, they will have to cope with a large body of creative High Court precedents. Some of them such as Trident could be cast aside as an error or left to be neglected. Other recent cases have permanently changed Australian law, none more so than Mabo.

MABO AND THE BEGINNING OF JUSTICE The greatest injustice in Australian law has always involved race. This has been evident in both official and unofficial views of law. Squatters and their workers thought that it was justifiable to shoot Aborigines, and the Sydney Herald teetered on the edge of inciting mass murder of them, and there were anti-Chinese riots on the goldfields. These popular visions of morality and of the appropriate shape of the law filtered into official law, particularly in the herding of Aborigines onto small reserves, the destruction of their family life, racially based immigration statutes and the law’s silence after massacres of Aborigines and the taking of their land. Much of this lasted until well into the second half of the twentieth century. Australia is now one of the most successful multicultural nations on earth. In disadvantaged schools such as Tempe High School, which is under the flight path to Sydney Airport, only a small minority of students have English-speaking backgrounds. An imaginative principal and staff there have used the students’ diversity to build strength; to learn English effectively, they first study their own language in depth. Every level of the Australian education system includes multi-racial student populations. At Macquarie University Law School, about a third of the students are from non-AngloCeltic backgrounds and many are Asian. This is a remarkable change for a country that had an official ‘white Australia’ policy until the 1960s. There has been a vast reversal in legal and social attitudes from the racism of quotas on Chinese immigrants, and the Natal language test. Of course, racist attitudes still exist, as anti-Asian slogans on the walls of some universities show, but, overall, one of the most racist nations on earth has become one of the least xenophobic. The law is an important part of this shift. Immigration laws have been changed, and anti-discrimination tribunals have been established. Which came first, the change in law or the change in social attitudes? Like the chicken and the egg, the answer is that they came together. The law is part of social beliefs, not something that stands outside them. In one important way, however, these changes are like the alteration in views about the role of women: the composition of the judiciary and parliaments are among the last areas to be affected by them. Women are still as rare on the judicial bench and in parliament as people of non-English-speaking backgrounds. This happy picture of increasing racial tolerance does not account for 195

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the continuing maltreatment of Aborigines and Torres Strait Islanders. They are the last to begin to benefit from it, and still suffer from conditions that have long been eradicated among those whose ancestors arrived since 1788. Indigenous Australians are still much more likely than the rest of the community to suffer ill health, early death, poverty, poor housing, and other desperate signs of social dislocation. There are disproportionately few Aboriginal lawyers, despite the fine programs at the University of New South Wales and elsewhere, and none has become a judge in the superior courts. The main Aboriginal experience with the law is as defendants and, among women, as victims of male violence or as families of imprisoned men. Aborigines are much more likely to be sued for non-payment of debts to finance companies or prosecuted for crimes than to press their rights against others. They are ten to twenty times more likely to be sent to gaol than non-Aborigines, and are among the most gaoled people in the world. Despite a Royal Commission into Aboriginal Deaths in Custody between 1987 and 1991, police in many parts of Australia continue to use repressive tactics. Institutional racism cannot be eradicated easily.30 As chapter 1 shows, the common law as it operated in Australia for more than 200 years failed to recognise the right of Aborigines to occupy the land they had lived on for tens of thousands of years. They were herded onto reserves, and throughout the nineteenth and much of the twentieth centuries they were subjected to failed experiments of assimilation, separation and control. In New South Wales alone, more than 5000 children were removed from their parents and placed in the care of whites between 1883 and 1969. This was an attempt to eradicate difference, to hurry along the perverted version of Darwin’s evolutionary theory, under which it was believed that Aborigines were a dying race. The beginning of a change of attitude was signalled by a 1967 referendum in which the Australian people approved an amendment to the commonwealth constitution to allow the federal government to make laws about Aborigines. Individual judges have also shown sensitivity to Aboriginal values, such as in the South Australian case of Napaluma v. Baker (1982).31 It was a personal injury action brought by a Pitjantjatjara man, in which Justice Zelling awarded damages for the loss of the man’s customary right to receive secrets; he was too injured to do so. There are special rules to deal with confessions by Aborigines in criminal cases (R. v. Anunga (1976)). When sentencing, some judges make allowances for Aboriginal notions of law: a spearing, which is seen by mainstream law as assault, may have been an action taken under Aboriginal law. If so, that may be taken into account in deciding on the criminal penalty to be imposed. In more controversial circumstances, some judges allow for the likelihood of customary punishment when setting sentences of their own. The reluctance of the empire of the common law to allow competitors 196

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also affects Aborigines. There is no general recognition of Aboriginal law as a separate and autonomous system of laws or dispute settlement. The official assimilation policies that were in force for so long were directly opposed to this recognition, but white attitudes began to change with official moves towards greater self-determination by Aborigines. When western law takes Aboriginal law into account, however, it does so only within the dominant legal system and only in an ad hoc way. The Australian Law Reform Commission recommended in 1986 that these situations should be widened. Even that would be within white law, not outside it, and thus further evidence of the imperialism of the common law. The most important change that mainstream law can make is the recognition of native title to land, because land is the source of both spiritual and economic power for Aborigines. The states passed land rights Acts between 1966 and the 1980s, some of them after pressure by the federal government. There is also a federal Act covering the Northern Territory. In many cases these Acts did no more than transfer reserve land into Aboriginal hands, and it was often marginal land of little commercial value to whites. Aborigines fought for these Acts, some of which are based on notions of Aboriginal autonomy and self-determination. The key weakness is that they are all just that, Acts of parliament. They are not based on the notion of pre-existing Aboriginal right to land. The land rights Acts were drafted on the assumption that all Australian land became the absolute property of the Crown on the foundation of the colonies, after which the government could dole it out as it chose. Under this, the only valid title is one that derives from the Crown. This basic law was endorsed by the Privy Council in Cooper v. Stuart in 1889 and not overturned until the Mabo case. The principle was tested in a major case in 1971, Milirrpum v. Nabalco Pty Ltd, but Justice Blackburn concluded that the common law did not recognise any notion of pre-existing native title. Although a judge of the Canadian Supreme Court later described Blackburn’s analysis of the Canadian case law in Milirrpum as ‘wholly wrong’,32 Blackburn’s decision led people to conclude that land rights in Australia could come about only through legislation. Fortunately, Eddie Mabo and the people of the Torres Strait islands pressed on with their claim for native title, despite Milirrpum. They were encouraged by a High Court decision in Coe v. Commonwealth (1979). The Coe case was struck out because of the poor drafting of the claim, but some of the judges, especially Murphy, showed sympathy towards the idea of native title. Mabo v. Queensland (No. 2) (1992)33 is the most important legal decision in Australian history. The claim was brought by the Meriam people of the Murray Islands in the Torres Strait, who argued that they held their land 197

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under native title, not by grant of the Crown. They began the case in 1982, and it lasted a decade and included two High Court decisions. In 1985 the conservative Queensland parliament, then notoriously antiAboriginal, tried to block the islanders’ legal action by extinguishing any native title they might have had. The High Court declared by a four to three majority in its first Mabo decision in 1988 that the Queensland Act was inconsistent with the federal Racial Discrimination Act 1975. As a result of the constitutional provision that federal law prevails over that of the states when the two are in conflict, the Queensland Act was ineffective. This opened the way for the main claim. By a six-to-one majority (Justice Dawson dissenting), the High Court held in Mabo (No. 2) that the Meriam people are entitled to the possession, occupation and use of most of the lands of the Murray Islands. They hold it under native title, not under a grant by the Crown. This title is, however, subject to the power of the Queensland government and parliament to extinguish it, so long as they do not infringe federal law. The six judges disagreed over the right of native people to compensation for the destruction of their title. Justices Deane, Gaudron and Toohey held that compensation is payable for the wrongful extinguishment of native title unless a statute says otherwise. They were apparently outvoted on this point by the other four, although in such a complicated judgment as this, even this point is not beyond dispute in all future cases. The outcome of the Mabo case is that Australian common law now recognises native title to land, but it can be extinguished by the Crown or by parliament. Where it was extinguished in the past, it seems that there is no right to compensation. The old Privy Council decision of Cooper v. Stuart and its supporting decisions by Australian courts have been overruled. The pernicious fiction at the heart of the Australian legal system, terra nullius, has been rejected. We are no longer required to believe that the indigenous people of Australia were not in possession of their land prior to the British occupation of Australia. Curiously, though, the court decided not to abandon the ‘settled’ classification of Australian colonisation, and rested its decision half-way between that and the idea that it was acquired by conquest (see chapter 1). Despite this, the case includes a fundamental rewriting of Australian land law, moving it far from its origins. One commentator says it has resonances of republicanism.34 This is just one of many aspects of a decision on which there have already been special issues of law journals, several books and many academic articles. Justice Brennan wrote the key judgment in Mabo, with which Chief Justice Mason and Justice McHugh agreed in a separate judgment. Brennan held that the notion that British occupation automatically removed Aboriginal title was unjust by any civilised standard. His general themes were also followed by the other three who found in favour of native title, 198

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but who dissented over compensation. There were also differences between the judgments about what exactly is needed for a successful native title claim. Injustice was not enough on its own for the High Court to change the law. Since 1986, the Brennan judgment pointed out, the High Court has been in sole control of the state of the common law in this country. ‘The law which governs Australia is Australian law’, he said; it is the historical successor to and is an organic development of the law of England. While the High Court is free to depart from English law, it cannot do so if that would fracture the skeleton of principle. The law can be modified to bring it into line with contemporary notions of justice and human rights, he said, but it cannot be destroyed. Here, he was talking about the limits of adaptation, the outer reaches of the legal language of the common law. Some principles are basic to our system of law, he said, and he had to decide whether they would be fractured by the recognition of native title. The most important limit on judicial law making in Mabo was the court’s finding that it cannot challenge the notion of Crown sovereignty; they must hold, at least, that the Crown acquired sovereignty when it established its colonies in Australia. According to Brennan, that imports supreme internal legal authority, which means the power to make law, and it is this which the courts cannot question. He then found that sovereignty carries with it the notion that the Crown and the parliaments may eradicate native title whenever they choose to do so. In one sense, then, what the High Court gave with one hand, it took away with the other. Brennan looked at international law and at the common law of other countries before deciding that native title did exist at the time of the commencement of colonisation. He then held that British occupation did not automatically eradicate this pre-existing title. To decide that would be unjust, discriminatory and in conflict with Australia’s international obligations as well as the fundamental values of the common law. The Crown merely obtained ultimate or radical title to land on the commencement of occupation, which meant the power to take land whenever it wished. That was consistent with the continuation of native title until the Crown or the parliament destroyed it. This, then, was a recognition of continuing native title based on the traditional laws and customs of the indigenous inhabitants of the islands. The Murray Islanders were successful because they proved the existence of their traditional title, that they had continued in possession under it, and that the Crown or parliament had never eradicated it. Once the people lost their customs or their connection with the land, it became the property of the Crown in a beneficial sense, but this had not happened on the Murray Islands, according to Brennan. (Not all of the judges accepted the 199

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need for continuing customs.) Nor does the grant of land that is subject to reservation of native rights extinguish the native title. Much of the mainland of Australia has been subject to the Crown’s determination to end native title, but not all, and not the islands in question. The judgments of the six majority judges are passionately written statements about 200 years of injustice. Deane and Gaudron admitted that some might find their judgment to be ‘unusually emotive’. They found, as a matter of history, that the obliteration or near obliteration of Aborigines in some areas was the inevitable consequence of their being dispossessed of their traditional lands, which was done under the cover of the law. They devoted several pages of their judgment to historical analysis, which is the driving power of their argument for compensation. For this we can thank historians who have worked in this area, much as Geoffrey Blainey objects to their findings.35 The other majority judgments were also based on the rejection by most historians that Australia was settled by peaceful annexation of unoccupied land. By accepting a revised historical account, the judges made new law, or, from a more traditional perspective, they recognised that the common law had been misapplied in Australia. Even on traditional legalist grounds, the decision in Mabo is unassailable. The old Privy Council decision in Cooper v. Stuart was based on the factual errors that Australia was peacefully settled and that Aborigines were never in possession of the land. That case was also inconsistent with the common law decisions of the United States, Canada and New Zealand. In short, it was wrongly decided. In Mabo, the majority judges of the High Court brought Australian law into line with the rest of the common law world. The Mabo decision shows, above all others, the way in which the High Court under Chief Justice Mason has remade the common law of Australia. It did not shatter the fundamental skeleton of the law, but it did show the influence of international law and the law of the other great common law jurisdictions, as well as a strong attachment to contemporary standards of justice. Mabo also shows the High Court’s limited willingness to move away from the empire of the common law. The judges felt obliged to hold that the common law system is supreme in Australia, since their court is a central part of that system. The court was unable to attack its own foundations, but this does not necessarily mean there is only one set of acknowledged legal values in Australia. Despite the attempts of some judges to avoid the point, the recognition of native title is automatically a recognition of other legal systems, those of the Aborigines and Torres Strait Islanders. The sovereignty implications of the judgment are still to be worked out; how far do the co-existing sovereignties of the Crown and the indigenous people of Australia go?36 This is likely to become the key issue in future debates about Aboriginal self-determination, just as it is in North America. It will 200

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also become an important theme in legal history, as we study the interaction of the many legal systems in Australia. The decision is a powerful stimulus to a pluralist view of the history of Australian law. The notion of pre-existing rights is what distinguishes native rights from those of immigrants to Australia. Those who come from Greece or Vietnam often have their own ideas about rights and justice. These ideas are, no doubt, seeping slowly into mainstream law. This is done as the High Court continues to incorporate community values into the law, and also more subtly as people from non-English-speaking backgrounds interact with the legal system. As society changes, so does the law, much as Anglophiles wish it could retain its English character.37 These immigrant ideas about law have not received the much greater recognition that Mabo necessarily requires for the indigenous people of Australia. The difference is that the common law has incompletely displaced a series of indigenous laws, whereas immigrants are taken to accept Australia’s basic legal system when they come here. Aboriginal immigration happened 50 000 years before the common law arrived, and it was their pre-existing laws which were interrupted, not those of the British. There could be no resolution of Aboriginal relations while official law treated them as enemies, or as lesser beings to be patronised, or even as universal, abstract Australians who are no more deserving of special consideration than any other minority group in a multicultural society. By recognising the pre-existing rights of Aborigines, Mabo has laid the foundations for reconciliation between them and other Australians. Mabo is only a first step. It was decided 200 years too late, and 150 years or more after similar decisions in other countries and the Bon Jon opinion of Justice Willis in Melbourne (chapter 1). Since Mabo, Aborigines are still dying in prison cells, and their children still live in deprivation. The decision has also brought out the anti-Aboriginal racism in the hearts of many Australians, as well as stirring the hostility of many miners, pastoralists and passionate believers in legalism. It will benefit only a minority of Aborigines directly, as it is likely that few will be able to meet the criteria for showing that they still hold native title. Those who were moved from their traditional land to distant reservations will probably find that their land has been taken without compensation. If they are to regain any land, they must do so through state and federal legislation. Mabo is most important for the political and social effects that flow from official recognition at the highest level that Australia was not merely peacefully settled. We do not yet know what immediate impact this will have on the land rights of the Aborigines of mainland Australia. We will not know that until the Labor government’s Native Title Act 1993 is tested in the national Native Title Tribunal, which the Act created; in one of its first decisions, in February 1995, the tribunal decided that even a 201

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pastoral lease could destroy native title. The Western Australian government has challenged the Act in the High Court. The Act was passed to give effect to the Mabo judgment, by establishing methods of recognising and enforcing native title. The Native Title Act was passed only because of the Mabo decision. The Hawke government repeatedly said that it would negotiate a Makarrata or treaty with the native people of Australia, but nothing came of it. Nor was there a federal land rights Act applicable across Australia until this. It was the High Court judges, not politicians, who broke the ice, and that required some courage. In doing so, they reversed the political onus. From the time the judgment was handed down, the onus was cast onto the politicians and others who wanted to argue that native title should be eradicated rather than on those who favoured it. Those who purport to support private property, especially spokespeople for the mining and pastoral industries, have to show why the property rights of the indigenous people of Australia should be taken away. Native title became a fact that day, and Australian history was changed. The Mabo decision was a victory for the Aborigines and islanders who fought for land rights as well as for the lawyers and the Aboriginal legal services who pressed on with the case for a decade, even against the power of the Bjelke-Petersen government in Queensland. It was also a victory for historians such as Henry Reynolds, who told us in book after book that the dispossession of Aboriginal people was by violence rather than polite settlement. Nothing has been given to the indigenous people of Australia through the High Court’s decision. They demanded recognition of what they knew to be their rights. Those rights were affirmed by the High Court rather than created by it. The Mabo case is a product of the end of the British empire, the collapse of the nineteenth-century pseudo-scientific theory of law, the growth of Australian assertiveness about law, the rewriting of Australian history to include the perspective of people who were conquered, and of a mature, internationally conscious legal system. It is the most important example of the adaptation of English law to local conditions, of the making of Australian law.

F I V E P H A S E S O F A U S T R A L I A N L AW There have been five phases of European law in Australia, each corresponding with constitutional developments.38 These phases have varied from one state or colony to another, as they moved through them at different times and in different circumstances. In the first, or frontier period, there was a practical opportunity for the rejection of English legal principles, even if imperial theory disapproved of this. According to this theory, the basic law of the Australian colonies was 202

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that of England, with only minor approved variations. The frontier stage was followed by one in which formal, professionally staffed superior courts were established and colonial legislatures were created with the right to pass laws that were not repugnant to the general inherited law of England. The third phase began in the 1850s with the grant of responsible government in five of the six colonies and was reinforced by the Colonial Laws Validity Act 1865. This Act allowed new elected colonial parliaments to repeal or alter the bulk of inherited law. The imperial government still had power to reject colonial legislation, however, which it occasionally did even in the last few years of the nineteenth century. In the fourth phase, which began with federation on 1 January 1901, the main practical limitation on local law making was the British government’s insistence that the Privy Council should remain at the top of the Australian judicial hierarchy. The fifth phase, from the 1960s onwards, has been characterised by a rejection of the symbols of deference to English legal ideas; that is, the abolition of Privy Council appeals, a lifting of the restriction on state legislatures which bound them to the paramount force laws of the imperial parliament, and the removal of the British government’s power to interfere with the laws and institutions of Australia. A concentration on this formal constitutional history suggests that Australian law has moved steadily away from its English parent, culminating in the Australia Acts in 1986. In fact, however, the nature and content of western law in Australia was subject to contest in all of these phases. Imperial officials in London, officials in Australia and the general population have engaged in debates about these issues ever since 1788, as the law has oscillated between deference to the inherited tradition of England and adaptation to local circumstances. There has never been a time at which one or other view was entirely triumphant, never a period of complete subservience to English tradition or complete rejection of it. For more than a hundred years after the mid-nineteenth century, most of the judges of the Australian courts subscribed to a combination of imperialism and formalism, under which the law was assumed to derive from England both in its authority and in its detailed content. But even in this period, Australian judges sometimes made important changes to English legal doctrine. More significantly, the legislatures often moved sharply away from English precedents in these years. The judges and politicians moved in opposite directions on the fundamental question of how English the law of Australia should be. The debate was not simply one in which imperial officials insisted on the colonies following English law despite Australian opposition, although that was part of the story. In both Australia and England, and at both official and unofficial levels, there were important disputes over issues such as race and divorce. The attachment to England may have been a back203

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ground issue in some of these arguments, but it was always there, always a powerful and conservative rallying point. Over the past two or three decades even the judges of the High Court have rejected the positivism and trickle-down theory which kept Australian judge-made law closely tied to that of England for so long. Historians in the university law schools have also been influenced by this fundamental change of attitude and have begun to look for diversity rather than similarity, pluralism rather than a unitary conception of law. Social historians such as E. P. Thompson have had an important effect on this as well, with their concentration on popular normative ideas, the people’s views of law. A few historians have applied that notion to Australian law, showing that the way in which law is used can have an effect on its content, both formally when popular ideas are translated into official law and informally when even the supposed victims of the law’s power use it to their own ends. The practical operation of the law involves the values of all who come into contact with it, even if white male values usually remain formally dominant. Official hierarchies, in which imperial law was on top, colonial law makers were in the middle, and the population did what it was told, were sometimes reversed. Australian law has been made as much by its general population and the material and social conditions in which they lived as by adherence to the ancient laws of England. The nature of Australian law is best explained as a contest between attitudes or visions of law. There is not, and never has been except at an official theoretical level, just one correct set of ideas about law, one single legal system. Even as the High Court is changing the common law and making it more Australian, there is resistance among conservative lawyers who remain attached to English ideas. Much of what the superior courts do is also irrelevant to the practical operation of law in the lower courts and tribunals, and to the great diversity of the Australian population. Australia’s indigenous people are the most notable example of this, with their insistence on asserting their own widely varying views of law. There is a true clash of legal cultures when those views are expressed in court rooms. Now that the diversity of law has become clearer, we need to pay closer attention to the sources of these conflicting attitudes among indigenous as well as non-indigenous people. It is now clear that the imperial centre was not the source of all legal ideas, but this does not mean that all other ideas were locally developed. In particular, it is time to look at cross-Pacific influences, and not just within commonwealth countries. The United States was as much a part of this pattern of influence as Canada and New Zealand. In this sense, these common law countries may have had a commonality that is quite distinct from the old imperial notion of law flowing only from London. This is not to deny that England was part of 204

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this pattern, but further research may show that it was merely an important part of a network, not the centre of a spider’s web. We need a new model of the circulation of legal ideas, particularly around the Pacific. This will have to incorporate multi-directional influences on official and popular thought, while continuing to recognise that Britishness was the mark of propriety for much of Australia’s legal history.

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INTRODUCTION My analysis of popular attitudes to law, here and in the rest of this book, was influenced most by H. Hartog, ‘Pigs and Positivism’, Wisconsin Law Review, 1985, p. 899; E. P. Thompson, Whigs and Hunters: The Origin of the Black Act, Penguin, Harmondsworth, 1975; and the essays in Albion’s Fatal Tree: Crime and Society in Eighteenth-century England, eds D. Hay, P. Linebaugh, J. G. Rule, E. P. Thompson and C. Winslow, Penguin, Harmondsworth, 1975. The essays include the famous piece by Douglas Hay, ‘Property, Authority and the Criminal Law’. 1 W. Blackstone, Commentaries on the Laws of England, vol. 1, 9th edn, 1783, reprint Garland Publishing, New York, 1978, pp. 108–109. 2 Blackstone, quoted by Henry Brougham, Hansard, House of Commons, 7 February 1828, col. 202. 3 Black Act: Thompson, Whigs and Hunters. The other customary practices are examined in the various essays in Albion’s Fatal Tree. 4 R. v. Rusby (1800) Peake Add. Cas. 189, 170 ER 241; E. P. Thompson, ‘The Moral Economy of the English Crowd in the Eighteenth Century’ Past and Present, vol. 50, 1971, p. 76. On America, see Hartog. 5 P. Linebaugh, ‘The Tyburn Riot against the Surgeons’, in Albion’s Fatal Tree, p. 65. 6 D. Hay, ‘Property, Authority and the Criminal Law’, in Albion’s Fatal Tree. 7 The best source on imprisonment for debt in the late eighteenth century is the Report of the House of Commons Select Committee on Imprisonment for Debt, House of Commons Journal, vol. 47, 1792, p. 640; also reported in Parliamentary Papers at 1791 (97) IX. See also (1729–30) First, Second and Third Reports of the Select Committee of the House of Commons into the State of the Gaols, published in Parliamentary History, 2 Geo. II, 1729–30, pp. 706, 731, 803; Report from the House of Commons Select Committee on the State of the Gaols of the City of London, Parliamentary Papers, 1813–14 (157)

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IV 249; Report from the House of Commons Select Committee on the King’s Bench, Fleet and Marshalsea Prisons, 1814–15 (152) IV 531. Secondary sources include P. Haagen, ‘Eighteenth Century English Society and the Debt Law’, in Social Control and the State: Historical and Comparative Essays, eds S. Cohen and A. Scull, Martin Robertson, Oxford, 1983; B. Kercher, ‘The Transformation of Imprisonment for Debt in England, 1828 to 1838’, AJLS, vol. 2, 1984, p. 60; J. Innes, ‘The King’s Bench Prison in the Later Eighteenth Century: Law, Authority and Order in a London Debtor’s Prison’, in An Ungovernable People: The English and their Law in the Seventeenth and Eighteenth Centuries, eds J. Brewer and J. Styles, Hutchinson, London, 1980. Dive v. Manningham (1551) 1 Plowden 60, p. 68; 75 ER 96, p. 109. At page 68/108 in this case, an analogy was drawn between the imprisonment of a debtor and the distraint of cattle. In neither case was it necessary to feed the captured being. See similarly, Manby v. Scott (1659) 1 Mod. 124, p. 132; 86 ER 781, p. 786. C. W. Francis, ‘Practice, Strategy, and Institution: Debt Collection in the English Common-Law Courts, 1740–1840’, Northwestern Law Review vol. 80, 1986, p. 807. See First Report of the Common Law Commissioners, Parliamentary Papers, 1829 (46) IX; I.U.P. Reprint: Legal Administration, General. Michael Kirby, The Judges, Australian Broadcasting Commission, Sydney, 1983, p. 50. ‘Science’: First Report of the Common Law Commissioners, p. 83. J. Howard, The State of the Prisons, abridged 3rd edn, 1784, Everyman’s Edition, London, 1929. Hansard, House of Commons, 7 February 1828, col. 166; ‘awful Privy Council’, col. 158. The speech is reported at cols 127–258. On the fee system, imprisonment and changes to English society in these years, see H. Perkin, The Origins of Modern English Society 1780–1880, Routledge & Kegan Paul, London, 1969, pp. 38–56; M. Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1750–1850, Macmillan, London, 1978; S. McConville, A History of English Prison Administration. Volume I 1750–1877, Routledge & Kegan Paul, London, 1981; E. P. Thompson, ‘Eighteenth Century English Society: Class Struggle Without Class?’, Social History, vol. 3, 1973, p. 133. D. Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, CUP, Cambridge, 1991; Whigs and Hunters, pp. 258–269.

CHAPTER 1 ABORIGINAL

SUBJECTS OF THE

CROWN

The best accounts of the nineteenth-century political and legal atmosphere concerning relations between colonists and Aborigines are Roger Milliss, Waterloo Creek: The Australia Day Massacre of 1838, George Gipps and the British Conquest of New South Wales, McPhee Gribble, Ringwood, Vic., 1992; and the works of Henry Reynolds, particularly The Law of the Land, Penguin, Ringwood, Vic., 1987. 1 On these events, see D. D. Mann, The Present Picture of New South Wales 1811, 1811, reprint John Ferguson, Sydney, 1979, p. 47; D. Collins, An Account of

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the English Colony in New South Wales, 1798, reprint A. H. & W. A. Reed, Sydney, 1975, vol. 1, p. 148; J. Holt (P A’Shaughnessy ed.), A Rum Story: The Adventures of Joseph Holt—Thirteen Years in New South Wales (1800–12), Kangaroo Press, Kenthurst, 1988, p. 71. Judge-Advocate Atkins’ Opinion on the Treatment of Natives, HRA, 1/5, pp. 502–504. J. A. Cassidy, ‘The Significance of a Colonial Acquisition: The Conquered/Settled Distinction’, paper delivered to Law in History Conference, La Trobe University, 1988; and see Introduction: English Flotsam, above. G. J. Abbott, ‘The Botany Bay Decision’, Journal of Australian Studies, vol. 16, 1985, p. 39. Governor Phillip’s Instructions, 25 April 1787, HRA, 1/1, pp. 13–14; General Orders to Hobart Town, 7 January 1805, HRA, 3/1, p. 529. HRA, 1/1, p. 293; and see P. Bayne, ‘Aborigines and the Legal Basis of Colonisation: Then and Now’, unpublished paper delivered to Law in History Conference, La Trobe University, 1988. Alex Castles, An Australian Legal History, LBC, Sydney, 1982, pp. 520–521; M. Sturma, Vice in a Vicious Society: Crime and Convicts in Mid-Nineteenth Century New South Wales, UQP, St Lucia, 1983, pp. 91–92. Henry Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia, Penguin, Ringwood, 1982, pp. 122–123. H. Melville (G. Mackaness ed.), The History of Van Diemen’s Land from the Year 1824 to 1835, inclusive during the Administration of Lieutenant-Governor Arthur, Horwitz-Grahame, Sydney, 1965. Modern accounts of the war with the Tasmanian Aborigines include L. L. Robson, A History of Tasmania. Vol. 1 From the Earliest Times to 1855, OUP, Melbourne, 1983, chs 3, 11; and Cassandra Pybus, Community of Thieves, Heinemann, Melbourne, 1991. For a copy of a martial law declaration, see M. Coe, Windradyne: A Wiradjuri Koorie, Blackbooks, Sydney, 1986. W. F. Finlason, Commentaries upon Martial Law, 1867, reprint, Rothman & Co., Littleton, Colorado, 1980, quotation at p. 1. For the further grounds in R. v. Jack Congo Murrell (1836) 1 Legge 72, see B. Bridges, ‘The Extension of English Law to the Aborigines for Offences Committed Inter Se, 1829–1842’, JRAHS, vol. 59, p. 264; Castles, Australian Legal History, pp. 526–529. See Alex Castles and Michael Harris, Lawmakers and Wayward Wigs: Government and Law in South Australia, 1836–1986, Wakefield Press, Adelaide, 1987, pp. 11, 16, 21-22. Willis, Address in Bon Jon’s case, enclosure in Gipps to Stanley, 24 January 1842, IUP Parliamentary Papers, Colonies: Australia, vol. 8, p. 149; the case is reported in this volume at pp. 143–156. On this case and Aborigines in the Port Phillip District generally, see Susanne Davies, ‘Aborigines, Murder and the Criminal Law in Early Port Phillip, 1841–1851’, Historical Studies, vol. 22, 1987, pp. 326–329; John Hookey, ‘Settlement and Sovereignty’, in Aborigines and the Law, eds Peter Hanks and Bryan Keon-Cohen, Allen & Unwin, Sydney, 1984, pp. 4–8.

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14 H. F. Behan, Mr. Justice J. W. Willis: with Particular Reference to his Period as First Resident Judge in Port Phillip 1841–1843, Behan, Melbourne, 1979, p. 224. 15 E. M. Russell, A History of the Law in Western Australia and its Development from 1829 to 1979, UWAP, Perth, 1980, p. 315. 16 On South Australia, see Castles and Harris, p. 22. On Melbourne, see Castles, Australian Legal History, pp. 244–245; and see Davies, pp. 315–319. On Van Diemen’s Land, see Robson, p. 211. On public executions generally, see M. Sturma, ‘Public Executions and the Ritual of Death’, Push from the Bush, no. 15, 1983, pp. 3–11. 17 Glenelg to Bourke: 26 July 1837, HRA, 1/19, p. 48. 18 Milliss provides the best account of the Myall Creek and Waterloo Creek massacres. See also R. H. W. Reece, Aborigines and Colonists: Aborigines and Colonial Society in New South Wales in the 1830s and 1840s, SUP, Sydney, 1974, ch. 4. 19 E. Webby, ‘Reactions to the Myall Creek Massacre’, Push from the Bush, no. 8, p. 2. Melbourne trial: Davies, pp. 321–325. 20 Milliss, pp. 545–546. 21 R. Therry, Reminiscences of Thirty Years’ Residence in New South Wales and Victoria, 1863, reprint SUP, Sydney, 1974, p. 283. Henry Reynolds, Frontier: Aborigines, Settlers and Land, Allen & Unwin, Sydney, 1987, pp. 58–61 shows that this attitude lingered in frontier areas, well into the nineteenth century. 22 J. M. Bennett and A. C. Castles, A Source Book of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries, LBC, Sydney, 1979, pp. 256–258; Castles and Harris, pp. 8–9; Russell, p. 335. 23 On Aboriginal evidence generally, see Castles, Australian Legal History, pp. 533–534. SA and WA: Castles and Harris, p. 23; Russell, pp. 317, 319. Therry on Aborigines: Therry, pp. 286–287. 24 The debate was reported by the Sydney Herald, 21 June 1844. 25 The best general treatment is by Reynolds, Law of the Land, ch. 2. 26 Castles and Harris, pp. 5, 7; Reynolds, Law of the Land, ch. 5. 27 Collins, vol. 1, p. 497. 28 Newspaper debates: Henry Reynolds, Dispossession, Allen & Unwin, Sydney, 1989, pp. 71–73. Saunders: Milliss, pp. 457–458. 29 Proclamation, 26 August 1835, Government Gazette, 2 September 1835, p. 613. See also Glenelg to Bourke, 13 April 1836, HRA, 1/18, pp. 379–91. 30 Milliss, pp. 226–232. 31 Vattel is quoted in Bennett and Castles, pp. 250–252. 32 Ian Pool, The Maori Population of New Zealand 1769-1971, Auckland University Press, 1977, p. 191. On Cooper v. Stuart (1889) 14 App. Cas. 286 as a polite fiction, see Bayne, pp. 10–11. 33 Reynolds, Law of the Land, p. 4; ‘amazing achievement’, p. 2.

CHAPTER 2 THE

C O N T R A D I C T I O N S O F C O N V I C T L AW

There is no specialised study of the legal position of convicts, but aspects of it are examined by David Neal, The Rule of Law in Penal Colony: Law and Power in Early New South Wales, CUP, Cambridge, 1991; J. B. Hirst, Convict Society and its Enemies:

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A History of Early New South Wales, Allen & Unwin, Sydney, 1983; Paula Byrne, Criminal Law and Colonial Subject: New South Wales, 1810–1830, CUP, Cambridge, 1993; and Bruce Kercher, The Development of Law in the New South Wales Court of Civil Jurisdiction, 1788–1814, PhD thesis, Macquarie University, 1992, ch. 4. 1 The papers in Cable (or Kable) v. Sinclair, July 1788, 2/8147 are held by the New South Wales Archives Office. On the background to the case, see Neal, pp. 1–7. 2 W. Blackstone, Commentaries on the Laws of England, vol. 4, 9th ed., 1783, reprint Garland Publishing, New York, 1978, pp. 380–389, 400–401 (quotation at p. 380); and see Field to Bathurst, 15 January 1823, HRA, 4/1, p. 423; Shepherd and Gifford to Bathurst, 13 May 1818, HRA, 1/9, p. 821; F. Forbes, ‘Summary of the Law . . . with Regard to Persons Who Have Been Adjudged Guilty of Crimes’, 1 January 1823, HRA, 4/1, pp. 419–422. 3 On the right to earn a living, see for example, orders, 28 October 1802, HRA, 1/4, p. 326; 26 October 1811, HRNSW, vol. 7, p. 631; and see Wylde and Field to Goulburn, 5 April 1817, HRA, 4/1, p. 247. 4 Castle Forbes: R. Therry, Reminiscences of Thirty Years’ Residence in New South Wales and Victoria, 1863, reprint SUP, Sydney, 1974, pp. 164–174, 177–178, 498; and, justifying his policies, James Mudie, The Felonry of New South Wales, 1837, reprint Lansdowne Press, Melbourne, 1964. 5 Portia Robinson, The Women of Botany Bay, revised ed., Penguin Books, Ringwood, 1993, pp. 277–290; ‘Marginalia’ in Mudie, p. 215. 6 Letter by Henry Tingley to his parents, in Select Documents in Australian History 1788–1850, ed. C. M. H. Clark, Angus & Robertson, Sydney, 1950, pp. 131–132. 7 Transportation Act (1784) 24 Geo. III c. 56; H. V. Evatt, ‘The Legal Foundations of New South Wales’, ALJ, vol. 11, 1938, pp. 411–412; A. E. Smith, Colonists in Bondage: White Servitude and Convict Labor in America, Peter Smith, Gloucester Mass., 1965, Part II. On indentured servants generally, see D. W. Galenson, White Servitude in Colonial America: an Economic Analysis, CUP, Cambridge, 1981. 8 On Jane New’s case, Sydney Gazette, 17 and 24 March 1829, see (1824) 5 Geo. IV c. 84; Forbes to Horton, 6 March 1827, HRA, 4/1, pp. 695–699; Forbes to Hay, 12 November 1827, HRA, 4/1, p. 748; Stephen to Horton, 27 March 1825, HRA, 4/1, pp. 607–608. See also Molesworth Report (1838), in J. M. Bennett and A. C. Castles, A Source Book of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries, LBC, Sydney, 1979, p. 2; and for a jaundiced view see Mudie, p. 29. The political background is examined by Neal, pp. 110–113; and see C. H. Currey, Sir Francis Forbes: The First Chief Justice of New South Wales, Angus & Robertson, Sydney, 1968, ch. 31. 9 Byrne, pp. 38–51; and see Portia Robinson, ‘The First Forty Years’, in In Pursuit of Justice: Australian Women and the Law 1788–1979, J. Mackinolty and H. Radi eds, Hale & Iremonger, Sydney, 1979, pp. 1–16; Robinson, Women of Botany Bay. 10 Alex Castles, An Australian Legal History, LBC, Sydney, 1982, p. 64. Castles wrongly suggests that he was chained to a coffin, rather than to a convict called Coffin.

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11 Marcus Clarke, For the Term of his Natural Life, 1874, reprint OUP, London, 1952, pp. 363–364. 12 Alex Castles, ‘The Vandemonian Spirit and the Law’, THRA, vol. 38, 1991, pp. 108–110; L. L. Robson, A History of Tasmania: Vol. 1 From the Earliest Times to 1855, OUP, Melbourne, 1983, pp. 60, 81, 118–119; H. Melville, The History of Van Diemen’s Land from the Year 1824 to 1835, inclusive during the Administration of Lieutenant-Governor Arthur, ed. G. Mackaness, 1835, reprint Horwitz, Sydney, 1965, p. 18. 13 (1825) 6 Geo. IV No. 5; and see (1830) 11 Geo. IV No. 12; (1832) 3 Wm IV No. 3 (NSW). 14 Therry, pp. 43–49, 164–170; Circular to Magistrates, 20 April 1820, HRA, 4/1, p. 337; Hirst, Convict Society, pp. 111–112, 175–176; Currey, Forbes, ch. 15; Castles, ‘Vandemonian’, p. 112. On the avoidance of (1832) 3 Wm IV No. 3 (NSW), see Michael Sturma, Vice in a Vicious Society: Crime and Convicts in Mid-Nineteenth Century New South Wales, UQP, St Lucia, 1983, pp. 14–18. Indemnity Acts: (1825) 6 Geo. IV No. 18 (NSW); (1825) 6 Geo. IV c. 69, s. 5 (imp.). 15 Byrne, ch. 2; and see Alan Atkinson, ‘Four Patterns of Convict Protest’, Labour History, vol. 37, 1979, pp. 28–51. 16 Sturma, pp. 19–20; Atkinson, pp. 36, 43. 17 P. O’Farrell, The Irish in Australia, UNSWP, Sydney, 1986, ch. 2; L. Silver, The Battle of Vinegar Hill, Doubleday, Sydney, 1989; R. W. Connell, ‘The Convict Rebellion of 1804’, Melbourne Historical Journal, vol. 5, 1965, pp. 27–37. Illegality at trial: M. Grove, ‘Observations on the Influence of Courts-Martial in the Colonial Court’, unpublished paper delivered to the Royal Australian Historical Society, 1993. On a subsequent alleged plot, see B. W. O’Dwyer, ‘Michael Dwyer and the 1807 Plan of Insurrection’, JRAHS, vol 69, 1983, pp. 73–82. On other rebellions, see Hirst, Convict Society, pp. 134–135, 142. 18 Court of Criminal Jurisdiction enabling Act: (1787) 27 Geo. III c. 2 (imp.). Chain gang legislation: (1830) 11 Geo. IV No. 12, ss 1, 3; (1832) 3 Wm IV No. 3, ss 3, 18, 24 (NSW). 19 The main source on Norfolk Island is M. Hazzard, Punishment Short of Death: A History of the Penal Settlement at Norfolk Island, Hyland House, Melbourne, 1984. On the Hayes correspondence, see M. Roe, ‘Trade, Life, and Law at Norfolk Island 1806–1808: Michael Hayes’s Records’, THRA, vol. 35, 1988, pp. 93–111. Desperate to escape: R. v. Farrell (1831) 1 Legge 5, p. 28. 20 Newcastle as a Convict Settlement: The Evidence before J. T. Bigge in 1819–1821, ed. J. W. Turner, Council of the City of Newcastle, Newcastle, 1973. 21 Sid Hammell, ‘Tickets of Leave’, honours paper, Macquarie University, 1992; Stephen to Horton, 27 March 1825, HRA, 4/1, p. 609; Forbes to Hay, 12 November 1827, HRA, 4/1, pp. 748–749; Jane New’s case, Sydney Gazette, 24 March 1829; Macquarie to Bathurst, 28 June 1813, HRA, 1/7, p. 779; proclamation, Sydney Gazette, 8 June 1811, p. 1; Sydney Gazette, 16 March 1806, p. 1; First Bigge Report (Great Britain, Report of the Commissioner of Inquiry, on the Judicial Establishments of New South Wales, and Van Diemen’s Land), 1822, p. 130; Mudie, p. 108; Therry, pp. 134–135, 167–168. On recognition of tickets, see (1832) 2 & 3 Wm IV c. 62; (1832) 3 Wm IV No. 4, s. 36.

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22 Pardons: 30 Geo. III c. 47; 6 Geo. IV c. 25; 9 Geo. IV c. 83, ss 34–35; 2 & 3 Will. IV c. 62 (imp.); Molesworth Report, pp. 2–3; First Bigge Report, pp. 119–120. Land policy: Instructions to Governor Phillip, HRA, 1/1, pp. 14–15; Brisbane to Bathurst, 14 May 1825, HRA, 1/11, p. 579. 23 W. Nichol, ‘Ideology and the Convict System in New South Wales, 1788– 1820’, Historical Studies, vol. 22, 1986, p. 1. 24 Brisbane to Bathurst, HRA, 1/11, p. 574; Hirst, Convict Society, pp. 41–46, 50–51. 25 Parramatta Female Factory: (1830) 11 Geo. IV No. 12, s. 3 (NSW); (1832) 3 Wm IV No. 3, ss 3, 18 (NSW); Brisbane to Bathurst, 14 May 1825, HRA, 1/11, p. 578; Report of the Select Committee on Transportation, 1812, in Clark, Select Documents, pp. 117–118; Therry, ch. 13; Annette Salt, These Outcast Women: The Parramatta Female Factory 1821–1848, Hale & Iremonger, Sydney, 1984; Hilary Weatherburn, ‘The Female Factory’, in Pursuit of Justice. On the factory in Hobart, see Robson, p. 146, and on bare bottoms there see C. M. H. Clark, A History of Australia, vol. 3, MUP, Melbourne, 1973, p. 207. On the use of the lash against women, see Castles, ‘Vandemonian Spirit’, p. 112; Pursuit of Justice, opposite p. 1. 26 The gradual introduction of attaint is discussed in Kercher, pp. 100–121. 27 Eagar v. Field and Eagar v. De Mestre are in HRA, 1/10, pp. 351–364, 553–554; and see Eagar to Bathurst, 3 April 1823, HRA, 4/1, pp. 463–464; First Bigge Report, pp. 131–137. See also N. McLachlan, ‘Edward Eagar (1787–1866): A Colonial Spokesman in Sydney and London’, Historical Studies, vol. 10, 1963, p. 431. The English decision followed in Eagar was Bullock v. Dodds (1819) 2 B. & Ald. 258; 106 ER 361. 28 Ellis Bent to Bathurst, 1 July 1815, HRA, 4/1, pp. 136–141; Jeffery Bent to Bathurst and enclosures, 1 July 1815, HRA, 4/1, pp. 144–162, 204–205; Jeffery Bent to Goulburn, HRA, 4/1, pp. 302–311; First Bigge Report, p. 145. See C. H. Currey, The Brothers Bent: Judge-Advocate Ellis Bent and Judge Jeffery Hart Bent, SUP, Sydney, 1968, chs 2 and 3. On convict attorneys, see Anthony Fisher, ‘From Norman Conquest to Rum Rebellion’, in J. M. Bennett, A History of Solicitors in New South Wales, Legal Books, Sydney, 1984. 29 Forbes, 1 January 1823, HRA, 4/1, pp. 419–422; and see his dissenting judgment in R. v. Farrell (1831) 1 Legge 5. See also evidence of Field to Bigge, October 1820, HRA, 4/1, pp. 866–867. 30 Mudie, ch. 1. 31 There were three Bigge Reports, one in 1822 and the others in 1823. The two that concerned the law were Great Britain, Reports of the Commissioner of Inquiry, on the Judicial Establishments of New South Wales, and Van Diemen’s Land (1822 (448) and 1823 (33)). Commission: see Bathurst to Bigge, 6 January 1819, in Bennett and Castles, pp. 6–8; J. M. Bennett, ‘The Day of Retribution: Commissioner Bigge’s Inquiries in Colonial New South Wales’, American Journal of Legal History, vol. 15, 1971, p. 89. 32 Re-transportation within NSW: (1823) 4 Geo. IV c. 96, ss 19, 36; and see (1830) 11 Geo. IV No. 12, and (1832) 3 Wm IV No. 3 (NSW); Hirst, Convict Society, p. 107. Second transportation from U.K.: Brisbane to Bathurst, 14 May 1825, HRA, 1/11, p. 573. Magistrates’ power of transportation: (1825) 6 Geo.

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IV c. 69, s. 3; Forbes to Horton, 6 March 1827, HRA, 4/1, p. 697. On the power of the Commandants, see (1830) 11 Geo. IV No. 12, ss 10–11; (1832) 3 Wm IV No. 3, ss 7–8 (NSW). Therry, p. 21, and see pp. 22–26. Sudds case: Castles, Australian Legal History, pp. 159–160; Hirst, Convict Society, pp. 118, 121, 177; and for comments supporting Darling, see Mudie, pp. 32–40. Moreton Bay: J. G. Steele, Brisbane Town in Convict Days 1824–1842, UQP, St Lucia, 1975. (1832) 2 & 3 Wm IV c. 62; 1837–38 Select Committee on Transportation, in Clark, Select Documents, pp. 133–134; First Bigge Report, pp. 119, 122–125; Therry, p. 133; Hammell, pp. 9, 13, 16, 18. Concern with morality of masters: S. G. Foster, ‘Convict Assignment in New South Wales in the 1830s’, Push from the Bush, no. 15, 1983, pp. 35–80; Therry, pp. 133–134. (1823) 4 Geo. IV c. 96, ss 34–35; (1824) 5 Geo. IV c. 84, s. 26; (1825) 6 Geo. IV c. 25; Macquarie to Bathurst, HRA, 1/10, p. 352; Field to Bathurst, 15 January 1823, HRA, 4/1, pp. 423–429; First Bigge Report, p. 119. See Dugan v. Mirror Newspapers Ltd (1978) 142 CLR 583, pp. 604–605. Convict deposits: S. J. Butlin, Foundations of the Australian Monetary System 1788–1851, SUP, Sydney, 1968 reprint, pp. 410–419; Hirst, Convict Society, p. 123; J. Maclehose, Picture of Sydney and Strangers’ Guide in N.S.W. for 1839, 1839, reprint John Ferguson, Sydney, 1977, p. 21; Stanley to Franklin, 1842, in Clark, Select Documents, p. 158; Brisbane to Bathurst, 14 May 1825, HRA, 1/11, p. 576; Australian, 13 March 1829. Government wages: Brisbane to Bathurst, HRA, 1/11, p. 578. Therry, p. 319 and see pp. 330–331. R. v. Joseph Eames, Sydney Gazette, 2 June 1825; R. v. Farrell (1831) 1 Legge 5, pp. 11, 24; First Bigge Report, pp. 136–138; evidence of Field to Bigge, December 1820, HRA, 4/1, p. 781; Field to Bigge, 23 October 1820, HRA, 4/1, pp. 866–867; Field to Bathurst, 15 January 1823, HRA, 4/1, pp. 423–429; Forbes, 12 June 1823, HRA, 4/1, pp. 483–484; Macquarie to Bathurst, 1 September 1820, HRA, 1/10, pp. 351–352. R. v. Charles Kable was reported in Sydney Gazette, 8 and 22 July 1822; see also Australian, 13 March 1829; Sydney Gazette, 10 March 1829. Legal effect of indents: Doe dem. Cotton v. Farrall (1847) 1 Legge 403; (contra: Doe dem. Tugwell v. Farrell (1847) 1 Legge 399); Hogan v. Hely, 31 March 1831, Sydney Gazette, 5 April 1831; Bourke to Goderich, 25 January 1833, HRA, 1/17, p. 21; (1830) 11 Geo. IV No. 12, s. 2 (NSW); (1832) 3 Wm IV No. 3, s. 35 (NSW). The indents were often inaccurate: see First Bigge Report, p. 121. Emancipist campaigns: Macquarie to Bathurst and Petition of Emancipists, 22 October 1821, HRA, 1/10, pp. 549–557; Eagar to Bathurst, 3 April 1823, HRA, 4/1, pp. 441–476. See McLachlan, and chapter 4. Imperial legislation on attaint: (1832) 2 & 3 Wm IV c. 62; (1843) 6 Vic. c. 7. NSW Act: (1832) 3 Wm IV No. 3, s. 36. See Therry, pp. 320–321; Clark, Select Documents, pp. 136, 158; Hirst, Convict Society, pp. 124–125; Hammell, pp. 27–28. R. v. Farrell, Dingle and Woodward (1831) 1 Legge 5, p. 18; (1844) 8 Vic. No. 1 (NSW); (1844) 7 & 8 Vic. c. 85 (imp.); Therry, pp. 203–205, 331; Debate on Evidence Bill, Sydney Herald, 21 June 1844; Alex Castles, ‘The Reception

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and Status of English Law in Australia’, Adelaide Law Review, vol. 2, 1963, p. 9; Currey, Forbes, pp. 462–464; Hirst, Convict Society, p. 122. Crossley’s appearance for wealthy people: see, for example, evidence of Palmer in Anthony Fenn Kemp v George Crossley, Court of Appeal Minutes, 12–13 April 1810, 4/1724 (AONSW); Sydney Gazette, 26 September 1812, p. 2; evidence of Wylde to Bigge, December 1820, HRA, 4/1, p. 840. On Crossley, see Crossley’s petition, 18 December 1817, HRA, 4/1, pp. 268–271; K. G. Allars, ‘George Crossley: An Unusual Attorney’, JRAHS, vol. 44, 1958, p. 261; Fisher, pp. 16–18; A. Halloran, ‘Some Early Legal Celebrities: First Series’, JRAHS, vol. 10, 1924, pp. 176–189; Currey, Brothers Bent, pp. 35–37. Convict attorneys at Hobart: Castles, ‘Vandemonian Spirit’, p. 111. Crossley, Amos and Field: Wylde to Goulburn, 31 March 1817, HRA, 4/1, pp. 229–230; Petition of Crossley, 18 December 1817, HRA, 4/1, p. 270; Macquarie to Wylde and Field, 10 March 1817, HRA, 4/1, p. 856; evidence heard by Bigge, November–December 1819, HRA, 4/1, pp. 755–773, 783–784, 850; John Amos to Bathurst, 27 July 1820, HRA, 4/1, pp. 339–343; and see Bennett, ‘Retribution’, pp. 93–95: Bennett, History of Solicitors, pp. 25–29; Allars, pp. 293–296; Halloran, pp. 185–188. Mudie, pp. 149–151 (quotation p. 151). Convict attorneys after 1824: Charter Establishing Courts of Judicature in New South Wales, clause 10, October 1823, HRA, 4/1, pp. 512–513; In re Roberts and Williams (1838) 1 Legge 89. Maconochie, p. 248. On Maconochie, see J. V. Barry, Alexander Maconochie of Norfolk Island: A Study of Pioneer in Penal Reform, OUP, Melbourne, 1958, including appendix, ‘Summary of Papers on Convict Discipline, Sent Home by Captain Maconochie, R.N.’. Coultman Smith, Shadow over Tasmania, 22nd impression, Walch & Sons, Hobart, 1985, pp. 58–60; Robson, pp. 151, 443, 488. On Molesworth and the end of transportation to New South Wales, see Molesworth Report; Russell to Gipps, 6 July 1840, HRA, 1/20, p. 700; N. Thompson, ‘The Molesworth Enquiry: Does the Report Fit the Evidence?’, Journal of Australian Studies, vol. 1, 1977, pp. 33–51; Clark, History, vol. 3, pp. 417–421; J. B. Hirst, The Strange Birth of Colonial Democracy: New South Wales 1848–1884, Allen & Unwin, Sydney, 1988, pp. 20–21. Hirst, Convict Society, pp. 22–27, 211; Robson, 329. See Alexandra Hasluck, Unwilling Emigrants: A Study of the Convict Period in Western Australia, OUP, Melbourne, 1959; I. van den Driesen, ‘Convict Migrants in Western Australia 1850–1968’, JRAHS, vol. 72, 1986, p. 40; addresses at 1985 symposium on convicts in Western Australia, published in Westerly, no. 3, 1985; L. Poole, ‘Convicts in Western Australia: Some Myths Exploded’, Social Sciences Forum, vol. 5, 1978, pp. 10–35; Argus Supplement, 25 June 1864, in Bennett and Castles, pp. 14–16. See Robson, pp. 388–389, 442–443, 453, ch. 23; Stanley to Franklin, 1842, in Clark, Select Documents, pp. 156–159.

C H A P T E R 3 A M AT E U R

L AW AT T H E F R O N T I E R

Much of this chapter is based on a thesis, which is presently being prepared for

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publication by Federation Press: Bruce Kercher, The Development of Law in the New South Wales Court of Civil Jurisdiction, 1788–1814, PhD thesis, Macquarie University, 1993. Two chapters have been published: B. R. Kercher, ‘Commerce and the Development of Contract Law in Early New South Wales’, Law and History Review, vol. 9, 1991, pp. 269–325; Bruce Kercher, ‘An Indigenous Jurisprudence? Debt Recovery and Insolvency Law in the New South Wales Court of Civil Jurisdiction, 1788 to 1814’, AJLS, vol. 6, 1990, pp. 15–49. Alex Castles has also written on frontier law: Alex Castles, ‘The Vandemonian Spirit and the Law’, THRA, vol. 38, 1991, pp. 105–118. The frontier period in other colonies has not been studied closely. 1 The main source used here on the Court of Civil Jurisdiction is Kercher, Development of Law. Unless stated otherwise, case references in this chapter are to the minutes of the Court of Civil Jurisdiction, held by the New South Wales Archives Office, and archival references are those of that office. 2 The First Charter of Justice, Letters Patent, 2 April 1787, is extracted in J. M. Bennett and A. C. Castles, A Source Book of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries, LBC, Sydney, 1979, pp. 19–22. On the foundation of these legal structures, see J. Bentham, A Plea for the Constitution, 1801, HRA, 4/1, p. 887; E. Campbell, ‘The Royal Prerogative to Create Colonial Courts: A Study of the Constitutional Foundations of the Judicial System in New South Wales, 1788–1823’, Sydney Law Review, vol. 4, 1964, p. 343; V. Windeyer, ‘ “A Birthright and Inheritance”: The Establishment of the Rule of Law in Australia’, Tasmania University Law Review, vol. 1, 1961, p. 635; R. Else-Mitchell, ‘The Foundation of New South Wales and the Inheritance of the Common Law’, JRAHS, vol. 49, 1963, p. 1; H. V. Evatt, ‘The Legal Foundations of New South Wales’, ALJ, vol. 11, 1938, p. 409; J. M. Bennett, ‘The Status and Authority of the Deputy Judge-Advocates of New South Wales’, Sydney Law Review, vol. 2, 1956–58, p. 501. 3 H. V. Evatt, Rum Rebellion: A Study of the Overthrow of Governor Bligh by John Macarthur and the New South Wales Corps, Angus & Robertson, Sydney, 1938, reprint 1975, p. 78. 4 HRA, 1/1, p. 632. The full reference is John Boston v Thomas Laycock, Neil McKellar, William Faithfull and William Eaddy, 8–30 December 1795, 2/8147; HRNSW, vol. 3, pp. 87–89; HRA, 1/1, pp. 602–643. 5 T. G. Parsons, ‘Was John Boston’s Pig a Political Martyr? The Reaction to Popular Radicalism in Early New South Wales’, JRAHS, vol. 71, 1985, p. 170. 6 L. Andell, ‘David Collins: His Early Life and Background’, THRA, vol. 35, 1968, pp. 23–36. For brief biographies of the early NSW judges, see Australian Dictionary of Biography; A. Halloran, ‘Some Early Legal Celebrities: First Series’, JRAHS, vol. 10, 1924, p. 169. 7 J. M. Bennett, ‘Richard Atkins: An Amateur Judge Jeffreys’, JRAHS, vol. 52, 1966, p. 261; K. Dermody, Justice and Tyranny: Interpretations of Politics and the Law Especially the Ideas of Richard Atkins and John Grant in New South Wales, 1792–1811, BLitt thesis, Australian National University, 1986; M. Meehan, ‘The Fallen World of Judge Advocate Atkins’, in Law and History in Australia, ed. S. Corcoran, Adelaide Law Review Association, Adelaide, 1991. Atkins’

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journal has not been published: R. Atkins, Voyage to Botany Bay, undated, typescript in Macquarie University Library. Richard Atkins v. John Harris, 28 May–10 June 1799, 2/8150. Quoted by Bennett, ‘Atkins’, p. 282, from Banks’ papers, Mitchell Library, 10 October 1807, pp. 191–192. See also Bligh to Windham, 21 October 1807, HRA, 1/6, pp. 150–151. Quoted by Bennett, ‘Atkins’, p. 284. See HRA, 1/2, pp. 244f. See Evatt, Rum Rebellion; R. Fitzgerald and M. Hearn, Bligh, Macarthur and the Rum Rebellion, Kangaroo Press, Kenthurst, 1988. Ellis to Jeffery Bent, 9 March 1810, Bent Papers 1802–1841, National Library of Australia, MS 195. The main biography of the Bents is C. H. Currey, The Brothers Bent: Judge-Advocate Ellis Bent and Judge Jeffery Hart Bent, SUP, Sydney, 1968. See also D. J. Benjamin, ‘Ellis Bent: Australia’s First Lawyer’, JRAHS, vol. 38, 1952, p. 57. Bent on Atkins: see also Ellis Bent to Cooke, 7 May 1810, HRNSW, vol. 7, p. 371. See W. Blackstone, Commentaries on the Laws of England, 9th edn, 1783, reprint Garland Publishing, New York, 1978, vol. 2, pp. 430–443; and see vol. 1, pp. 442, 444. NSW cases on married women include: Mrs Griffiths v. Mrs Noel, Sydney Gazette, 2 June 1805; Mary Reibey v. Thomas McKennah, 22 April 1812, 5/1107–176; David Dundas v. Elizabeth Driver (Executrix of the last Will and Testament of John Driver deceased), 20 August 1810, Case Papers 5/2278 (passage written by Crossley); William Packer v. William Clark, 3 May 1813, 5/1109–210; Elizabeth McArthur v. Connelly, 19 April 1814, 5/1110–262; Elizabeth McArthur v. Pickering, 28 April 1814, 5/1110–340; and see Doe dem. Tugwell v. Farrell (1847) 1 Legge 399; Doe dem. Cotton v. Farrall (1847) 1 Legge 403. On marriage, see Alan Atkinson, ‘Marriage and Distance in the Convict Colonies, 1838’, Push from the Bush, vol. 16, 1983, p. 61; C. H. Currey, ‘The Law of Marriage and Divorce in New South Wales (1788–1858)’ JRAHS, vol. 41, 1955, pp. 97–109; C. H. Currey, Chapters on the Legal History of New South Wales 1788–1863, doctoral thesis, University of Sydney, 1929, pp. 396–398; and see M. Perrott, A Tolerable Good Success: Economic Opportunities for Women in New South Wales 1788–1830, Hale & Iremonger, Sydney, 1983. Sarah Cooley’s case is Ex parte Thomas Broadhurst, 29 October 1811, 5/1106– 249, 23 January 1812, 5/1107–39. Similar cases are discussed by P. Grimshaw, M. Lake, A. McGrath and M. Quartly, Creating a Nation, McPhee Gribble, Melbourne, 1994, pp. 55-60. See also Portia Robinson, ‘The First Forty Years’, in In Pursuit of Justice: Australian Women and the Law 1788–1979, J. Mackinolty and H. Radi eds, Hale & Iremonger, Sydney, 1979, p. 12; S. Parker, Informal Marriage, Cohabitation and the Law, 1750–1989, MacMillan, Basingstoke, 1990, ch. 2; Portia Robinson, The Women of Botany Bay: A Reinterpretation of the Role of Women in the Origins of Australian Society, Macquarie Library, Sydney, 1988, p. 200. Proclamation, 24 February 1810, HRNSW, vol. 7, pp. 292–294; Sydney Gazette, 24 February 1810, p. 1, 26 June 1813, p. 1. Magistrates’ powers over maintenance: Field to Bigge, 23 October 1820, HRA,

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4/1, p. 861; the following cases in the minutes of the Sydney Magistrates’ Court: Hannah Fox v. Richard Fox, 11 August 1798, SZ 766 (reel 655); Sarah Anderson v. Bryan Overend, 18 August 1810, SZ 771 (reel 658); and see order, 22 January 1798, HRA, 1/2, p. 210; HRNSW, vol. 3, pp. 352–353. Thomas Sanders v. Thomas Jones, 6 July 1814, 5/1110–476. See also William Mahoney v. Bryan O’Brien, 9 January 1813, 5/1109–51. Order, 13 November 1800, HRA, 1/3, p. 38, and HRA, 1/4, pp. 255, 343–344; order, 26 February 1802, HRA, 1/3, pp. 473–474. See also Sydney Gazette, 10 July 1803, p. 1; 2 June 1805, p. 1; 15 January 1809, p. 2, and HRA, 4/1, note 66, pp. 917–918. For England, see A. H. Manchester, A Modern Legal History of England and Wales 1750–1950, Butterworths, London, 1980, p. 309; W. R. Cornish and G. de N. Clark, Law and Society in England 1750–1950, Sweet & Maxwell, London, 1989, pp. 172–179. There were local registration provisions in England by 1817, but none at a general level: see HRA, 4/1, p. 220. See Alan Atkinson, ‘Taking Possession: Sydney’s First Householders’, in A Difficult Infant: Sydney Before Macquarie, ed. Graeme Aplin, UNSWP, Kensington, 1988; J. Oxley-Oxland and R. T. J. Stein, Understanding Land Law, LBC, Sydney, 1985, pp. 90–91; C. H. Currey, Chapters, pp. 318–320; K. W. Robinson, ‘Land’, in Economic Growth of Australia, eds G. J. Abbott and N. B. Nairn, MUP, Melbourne, 1969, pp. 74–104; A. W. Williams, ‘Colonial Origins of Land Acquisition Law in New South Wales and Queensland’, Journal of Legal History, vol. 10, 1989, p. 352; L. McLoughlin, ‘Landed Peasantry or Landed Gentry: A Geography of Land Grants’, in Difficult Infant; B. H. Fletcher, Landed Enterprise and Penal Society: A History of Farming and Grazing in New South Wales before 1821, SUP, Sydney, 1976. Republican views of land: Brendan Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law: English and Australian Land Law Compared after Mabo v Queensland’, Anglo–American Law Review, vol. 23, p. 397, 1994. Liquor as currency: order, 14 February 1807, HRNSW, vol. 6, p. 253; Sydney Gazette, 19 February 1809, p. 1; HRNSW, vol. 7, p. 25; Thomas Kent v. Robert Campbell as surety for Captain Mallison, 22 December 1809, 2/8149. John Green: HRA, 1/3, p. 469. W. C. Wentworth, Statistical, Historical, and Political Description of the Colony of New South Wales, 1819, facsimile edn, Griffin Press, Adelaide, 1978, p. 209. Fading ink: S. J. Butlin, The Foundations of the Australian Monetary System 1788–1851, SUP, Sydney, 1953, reprinted 1968, p. 27, and see chs 1–4 on promissory notes. Macquarie’s concern about petty bankers (HRA, 1/7, pp. 264–265) was shared by Ellis Bent: Bent to his mother, 25 October 1810, Bent Papers; and see Sydney Gazette, 29 September 1809, p. 2. Governors’ orders on promissory notes: HRA, 1/2, p. 623; HRA, 1/3, p. 465; HRNSW, vol. 7, pp. 390–391; Sydney Gazette, 7 August 1803, p. 1; 2 November 1806, p. 1; 18 January 1807, p. 1; 30 June 1810, p. 1; 9 October 1813, p. 1. Court’s breach of orders: see for example, Elizabeth Driver v. James Flavel, 20 March 1810, 5/1103–80; Samuel Terry v. James Pheelin, 20 March 1810, 5/1103– 44; Henry Kable v. Robert Richy, 26 March 1810, 5/1103–112. See Kercher, ‘Commerce’. John Wood v. Robert Campbell, 15 and 20 January 1812, 5/1107–12 and 20.

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28 William Jarrett v. Joseph James, 19 April 1814, 5/1110–270; and see Martin Bryant v. Charles Hook, 31 January 1812, 5/1107–88; Cutter v. Powell (1795) 6 TR 320, 101 ER 573. 29 Quoted by Michael Roe, ‘Colonial Society in Embryo’, Historical Studies, vol. 7, 1956, p. 153. On debt recovery up to 1814, see Kercher, ‘Indigenous’. 30 Bent to Cooke, HRA, 4/1, p. 53. 31 On the Court of Criminal Jurisdiction, see (1787) 27 Geo. III c. 2 (imp.); First Charter of Justice; Alex Castles, An Australian Legal History, LBC Sydney, 1982, ch. 4; Currey, Brothers Bent, p. 13; J. B. Simpson, The Military and the Administration of Criminal Justice in 1788–1806: Historical, Legal and Social Aspects, LL M thesis, Macquarie University, 1990. 32 Castles, Australian Legal History, p. 59. Military trappings still necessary: Bathurst to Bent, 11 December 1815, HRA, 4/1, p. 171. 33 Isaac Nicholls’ case: Evatt, Rum Rebellion, ch. 6; Currey, Brothers Bent, pp. 22–25. Manipulation of court by rebels: Evatt, Rum Rebellion, chs 27–29, p. 155. 34 See Castles, ‘Vandemonian’; Castles, Australian Legal History, pp. 105, 114–116, 264–265; Henry Melville, The History of Van Diemen’s Land from the Year 1824 to 1835, ed. G. Mackaness, 1835, reprint Horwitz, Sydney, 1965, p. 18; R. W. Baker, ‘The Early Judges in Tasmania’, THRA, vol. 8, 1960, pp. 71–72. Convict attorney, see also: J. M. Bennett, A History of Solicitors in New South Wales, Legal Books, Sydney, 1984, p. 42. 35 See Michael Roe, ‘Trade, Life and Law at Norfolk Island, 1806–8: Michael Hayes’s Records’, THRA, vol. 35, 1988, pp. 93–110 (quotation at p. 97). 36 See B. H. McPherson, The Supreme Court of Queensland 1859–1960: History Jurisdiction Procedure, Butterworths, Sydney, 1989, ch. 1; Castles, Australian Legal History, ch. 10. 37 Castles, Australian Legal History, ch. 10. 38 Castles, Australian Legal History, ch. 12; E. M. Russell, A History of the Law in Western Australia and its Development from 1829 to 1979, UWAP, Perth, 1980, chs 2–4, 7–15. 39 On SA, see Castles, Australian Legal History, ch. 12; Alex Castles and Michael Harris, Lawmakers and Wayward Wigs: Government and Law in South Australia, 1836–1986, Wakefield Press, Adelaide, 1987, chs 2–3; R. M. Hague, Sir John Jeffcott: Portrait of a Colonial Judge, MUP, Melbourne, 1963. 40 Quoted by Hague, p. 56. 41 On imprisonment for debt in SA and WA, see chapter 6. 42 Castles and Harris, pp. 90 and 92, and see ch. 3 generally. 43 HRA, 4/1, p. 802.

C H A P T E R 4 I N N O VAT I O N

SMOTHERED? FORMAL CHANGES FROM THE 1820s TO THE 1850s

Two books provide particularly useful discussions of the constitutional changes examined in this chapter: J. B. Hirst, The Strange Birth of Colonial Democracy: New South Wales 1848–1884, Allen & Unwin, Sydney, 1988; and David Neal, The Rule of Law in Penal Colony: Law and Power in Early New South Wales, CUP, Cambridge,

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1991. An older, broad study is A. C. V. Melbourne, Early Constitutional Development in Australia, 2nd edn, UQP, St Lucia, 1963. 1 W. C. Wentworth, Statistical, Historical, and Political Description of the Colony of New South Wales, 1819, reprint Griffin Press, Adelaide, 1978. See Neal, Rule of Law, pp. 176–177; C. M. H. Clark, A History of Australia, vol. 2, MUP, Melbourne, 1980, ch. 3. 2 See Clark, vol. 2, p. 49. 3 On the campaign for jury trial, see Neal, Rule of Law, ch. 7; David Neal, ‘Law and Authority: the Campaign for Trial by Jury in New South Wales’, Journal of Legal History, vol. 8, 1987, pp. 107–128; J. M. Bennett, ‘The Establishment of Jury Trial in New South Wales’, Sydney Law Review, vol. 3, 1959–61, pp. 463–485. Eagar’s role in the reform debate: N. McLachlan, ‘Edward Eagar (1787–1866): A Colonial Spokesman in Sydney and London’, Historical Studies, vol. 10, 1963, pp. 431–456. 4 Neal’s argument is in Neal, Rule of Law. 5 L. Robson, A History of Tasmania, vol. 1, OUP, Oxford, 1983, pp. 301–310; Alex Castles, An Australian Legal History, LBC, Sydney, 1982, p. 273. 6 J. M. Bennett, ‘The Day of Retribution: Commissioner Bigge’s Inquiries in Colonial New South Wales’, American Journal of Legal History, vol. 15, 1971, p. 88. On this dispute, see C. H. Currey, The Brothers Bent: Judge-Advocate Ellis Bent and Judge Jeffery Hart Bent, SUP, Sydney, 1968, pp. 74–80; Neal, Rule of Law, pp. 95–97. There was a similar dispute a few years later, between Judge-Advocate Wylde and Governor Brisbane: L. A. Whitfield, Founders of the Law in Australia, Australian National University, Canberra, 1969, p. 31. 7 Enid Campbell, ‘Prerogative Rule in New South Wales, 1788–1823’, JRAHS, vol. 50, 1964, pp. 180–184; V. Windeyer, Lectures on Legal History, 2nd edn, LBC, Sydney, 1957, p. 306; R. Else-Mitchell, ‘The Foundation of New South Wales and the Inheritance of the Common Law’, JRAHS, vol. 49, 1963, p. 5. Evatt was alone among modern writers in thinking that the governors’ power to make law even allowed them to contradict English law: H. V. Evatt, ‘The Legal Foundations of New South Wales’, ALJ, vol. 11, 1938, p. 423. 8 E. Bent to Cooke, 26 January 1810, HRA, 4/1, p. 48; E. Bent to Liverpool, 19 October 1811, HRA, 4/1, p. 57. 9 See Castles, Australian Legal History, ch. 7; C. H. Currey, Sir Francis Forbes: The First Chief Justice of New South Wales, Angus & Robertson, Sydney, 1968, chs 3 and 4. 10 4 Geo. IV c. 96, s. 24, and see s. 25 on insurrection. Secrecy: Melbourne, p. 176; Robson, vol. 1, p. 333. 11 4 Geo. IV c. 96, s. 29, and see s. 24, which puts the requirement slightly differently. 12 R. v. Farrell, Dingle and Woodward (1831) 1 Legge 5, p. 17. 13 R. v. Farrell, p. 10. 14 Cooper v. Stuart (1889) 14 App. Cas. 286; and see, for example, Burton J. in Macdonald v. Levy (1833) 1 Legge 39. See also Alastair Davidson, The Invisible State: The Formation of the Australian State 1788–1901, CUP, Cambridge, 1991, pp. 134–136. 15 See Castles, Australian Legal History, ch. 7; Court in the Colony, ed. J. N. D.

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Harrison, Law Society of Tasmania, Hobart, 1974; G. D. Brown and P. B. Walker, The Brief Case, Melanie Publications, Hobart, 1981; J. M. Bennett, A History of the Supreme Court of New South Wales, LBC, Sydney, 1974; J. M. Bennett, ‘The Office of Sheriff: Historical Notes on its Evolution in New South Wales’, Sydney Law Review, vol. 7, 1976, p. 360. On amateurism in appeals, see A. C. Castles and M. Harris, Lawmakers and Wayward Wigs: Government and Law in South Australia, 1836–1986, Wakefield Press, Adelaide, 1987, p. 64; Currey, Forbes, pp. 26–28. Juries and 1823 Act: Castles, Australian Legal History, pp. 191, 273–275; Neal, Rule of Law, pp. 184–185; Bennett, ‘Jury Trial’; Currey, Forbes. The first jury trial in a civil case was in 1825: The King v. Robert Cooper, Sydney Gazette, 17 February 1825. Bathurst on juries: Neal, Rule of Law, p. 175; Currey, Brothers Bent, p. 66. Bigge on juries: Bennett, ‘Retribution’, pp. 100–102. Forbes and the grand jury: A. Castles, ‘Now and Then’, ALJ, vol. 64, 1990, p. 507–509; Bennett, ‘Jury Trial’, pp. 482–485. In ‘Now and Then’, Castles also examines the use of grand juries in other colonies, as he does in Castles, Australian Legal History, pp. 204–205, 275–276, 300, 312–314, 322. See also E. Histed, ‘The Introduction and Use of the Grand Jury in Victoria’, Journal of Legal History, vol. 8, 1987, p. 167; Castles and Harris, p. 50; Alex Castles, ‘The Judiciary and Political Questions: The First Australian Experience, 1824– 1825’, Adelaide Law Review, vol. 5, 1973–76, p. 294. See W. H. Winder, ‘The Courts of Requests’, Law Quarterly Review, vol. 52, 1936, p. 369. Australian Courts Act: (1828) 9 Geo. IV c. 83; J. M. Bennett and A. C. Castles, A Source Book of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries, LBC, Sydney, 1979, pp. 53, 72, 74; Currey, Forbes, ch. 24. A. R. Blackshield, The Abolition of Privy Council Appeals: Judicial Responsibility and ‘The Law for Australia’, Adelaide Law Review Association, Adelaide, 1978, ch. 2. See also Bennett, History of the Supreme Court, pp. 168–170. Choice of date of reception: V. Windeyer, ‘ “A Birthright and Inheritance”: The Establishment of the Rule of Law in Australia’, Tasmania University Law Review, vol. 1, 1961, pp. 667–669; Castles, Australian Legal History, pp. 393– 399; Currey, Forbes, ch. 28. Ex parte Nichols (1839) 1 Legge 123; T. P. Webb, A Compendium of the Imperial Law and Statutes in Force in the Colony of Victoria, 2nd edn, 1892, in Bennett and Castles, pp. 272–274; Alex Castles, ‘The Reception and Status of English Law in Australia’, Adelaide Law Review, vol. 2, 1963, p. 17. Castles, Australian Legal History, pp. 295, 402; Castles, ‘Reception’, p. 3. E. M. Russell, A History of the Law in Western Australia and its Development from 1829 to 1979, UWAP, Perth, 1980, ch. 12; Castles, Australian Legal History, pp. 314, 325; Castles and Harris, pp. 62–64. Robson, vol. 1, pp. 335, 483–487, 513–517. Australian Constitutions Act, 5 and 6 Vic. c. 76; Castles, Australian Legal History, ch. 8. Melbourne, p. 270. Neal, Rule of Law; J. B. Hirst, Convict Society and its Enemies: A History of

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Early New South Wales, Allen & Unwin, Sydney, 1983; J. B. Hirst, ‘Or None of the Above: A Reply’, Historical Studies, vol. 22, 1987, p. 519; B. Kercher, ‘The Rule of Law in a Penal Colony’, Law and History Review, vol. 11, 1993, p. 453. Statistics: Australians: Historical Statistics, W. Vamplew ed., Fairfax, Syme & Weldon, 1987, pp. 104–105. Supreme Court (Administration) Act 1852 (Vic.); Supreme Court Ordinance 1861 (Qld); Castles, Australian Legal History, pp. 332–333; B. H. McPherson, The Supreme Court of Queensland 1859–1960, Butterworths, Sydney, 1989, ch. 2. Castles and Harris, pp. 144–146. Hirst, Strange Birth; and see Ruth Knight, Illiberal Liberal: Robert Lowe in New South Wales, 1842–1850, MUP, Melbourne, 1966, chs 4–6; Davidson, ch. 6. Clark, vol. 4, p. 105. R. D. Lumb, ‘The Bicentenary of Australian Constitutionalism: The Evolution of Rules of Constitutional Change’, University of Queensland Law Journal, vol. 15, 1988, p. 9. See Castles and Harris, pp. 111–112. Responsible government legislation: 18 and 19 Vic. c. 54 (imp.); Lumb, p. 9; Castles and Harris, ch. 4; Clark, vol. 4, pp. 103–105; Paul Finn, Law and Government in Colonial Australia, OUP, Melbourne, 1987, pp. 79–80, 114; Castles, Australian Legal History, p. 325. Clark, vol. 4, pp. 242–243, 260, 376.

CHAPTER 5 THE POWER OF THE JUDGES: J U D I C I A L R E V I E W A N D T H E AT TA C H M E N T T O ENGLAND There are book-length biographies of Forbes and Willis, but not of Burton or Boothby: C. H. Currey, Sir Francis Forbes: The First Chief Justice of New South Wales, Angus & Robertson, Sydney, 1968; H. F. Behan, Mr. Justice J. W. Willis: with Particular Reference to his Period as First Resident Judge in Port Phillip 1841–1843, Behan, Melbourne, 1979. Currey’s biography of Forbes, like his book on the Bents, is a cornerstone of work in this period. 1 R. Therry, Reminiscences of Thirty Years’ Residence in New South Wales and Victoria, 1863, reprint, SUP, Sydney, 1974, p. 318. 2 Quotations: Currey, Forbes, pp. 5, 19; J. M. Bennett, A History of the Supreme Court of New South Wales, LBC, Sydney, 1974, p. 31. Customs in Newfoundland: see Michael Meehan v. John Robert Brine, 11 August 1817, and Lydston Newman v. John Goss, 15 September 1817, in Sir Francis Forbes, Decisions of the Supreme Court of Judicature, Newfoundland 1817–1821, Mitchell Library, manuscript A740. Forbes on repugnancy: see also Therry, pp. 333–334. On his dispute with Darling, see Brendan Edgeworth, ‘Defamation Law and the Emergence of a Critical Press in Colonial New South Wales’, AJLS, vol. 6, 1990, p. 50; C. M. H. Clark, A History of Australia, vol. 2, MUP, Melbourne, 1968, pp. 71–91. For a very hostile view of Forbes, see James Mudie, The Felonry of New South Wales, 1837, reprint Lansdowne Press, Melbourne, 1964, ch. 5. 3 Forbes to Horton, 6 March 1827, in J. M. Bennett and A. C. Castles, A Source

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Book of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries, LBC, Sydney, 1979, p. 71. Alex Castles, ‘The Reception and Status of English Law in Australia’, Adelaide Law Review, vol. 2, 1963, p. 17. Currey, Forbes, pp. 43–45. Currey, Forbes, pp. 281–282. Currey, Forbes, p. 194. See Edgeworth. On Forbes’ view of the end of gaol government, see Forbes to Horton, 6 March 1827, in Bennett and Castles, pp. 70–71. J. M. Bennett, Sir John Pedder: First Chief Justice of Tasmania, University of Tasmania, Hobart, 1977, pp. 12–14; Lloyd Robson, A History of Tasmania, vol. 1, OUP, Melbourne, 1983, pp. 301–304. Currey, Forbes, p. 216. R. v. Magistrates of Sydney (1824); Alex Castles, An Australian Legal History, LBC, Sydney, 1982, pp. 185–186; Alex Castles, ‘The Judiciary and Political Questions: The First Australian Experience, 1824–1825’, Adelaide Law Review, vol. 5, 1973–76, p. 294; Bennett, Pedder, pp. 10–11; R. W. Baker, ‘The Early Judges in Tasmania’, THRA, vol. 8, 1960, p. 73. On the development of judicial review in pre-revolutionary America, see Shannon Stimson, The American Revolution in the Law: Anglo-American Jurisprudence before John Marshall, Princeton University Press, Princeton, 1990. Macdonald v. Levy (1833) 1 Legge 39. On Burton, see K. G. Allars, ‘Sir William Westbrooke Burton’, JRAHS, vol. 37, 1951, p. 257. In letters to his brother and friends, which are in the NSW Bar Association Library, Burton emphasised his pressing financial problems and his personal ambitions. The debate about usury was revived during the recession of the 1840s; see chapter 6. Macdonald v. Levy (1833) 1 Legge 39, p. 42. Macdonald v. Levy (1833) 1 Legge 39, p. 49. Macdonald v. Levy (1833) 1 Legge 39, p. 49. Burton to Mr and Mrs Benjamin Austen, 19 June 1833, 30 September 1833, Mitchell Library document 2668. H. Melville, Australasia and Prison Discipline, London, 1851, pp. 284. An equally fine insult is that lawyers were ‘cormorants of the law, of different grades as to rank and emolument but with an equality as to the voracity of most of these harpies, quite in keeping with the character of their race’: Mudie, p. 148. Macdonald v. Levy (1833) 1 Legge 39, p. 55. Land law: R. v. Cooper, Sydney Gazette, 17 February 1825, in Bennett and Castles, pp. 268–269. Evidence: R. v. Farrell, Dingle and Woodward (1831) 1 Legge 5; see chapter 2. See also Alastair Davidson, The Invisible State: The Formation of the Australian State 1788–1901, CUP, Cambridge, 1991, ch. 5. Linda Martin, ‘From Apprenticeship to Law School: A Social History of Legal Education in Nineteenth Century New South Wales’, University of New South Wales Law Journal, vol. 9, 1986, p. 123. See Blaine Baker, ‘The Reconstitution of Upper Canadian Legal Thought in the Late-Victorian Empire’, Law and History Review, vol. 3, 1985, p. 219; Paul Romney, ‘Very Late Loyalist Fantasies: Nostalgic Tory “History” and the Rule

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of Law in Upper Canada’, in Canadian Perspectives on Law and Society: Issues in Legal History, eds W. W. Pue and B. Wright, Carleton University Press, Ottawa, 1988. Applicability of bankruptcy: Ex parte Lyons; in re Wilson (1839) 1 Legge 140. Forbes on marriage, land, etc.: Macdonald v. Levy (1833) 1 Legge 39, p. 54. Marriage Act: R. v. Maloney (1836) 1 Legge 74. Press laws: Castles, ‘Reception’, p. 18. Vagrancy: Mitchell v. Scales (1907) 5 CLR 405. Adoption of judge-made law: Fitzgerald v. Luck (1839) 1 Legge 118. Timber: Campbell v. Kerr (1886) 12 VLR 384. Tent: see R. M. Hague, Sir John Jeffcott: Portrait of a Colonial Judge, MUP, Melbourne, 1963, pp. 82–83. Paul Finn, Law and Government in Colonial Australia, OUP, Melbourne, 1987, p. 67; Castles, Australian Legal History, pp. 343–344; and see Daniel Duman, The English and Colonial Bars in the Nineteenth Century, Croom Helm, London, 1983, pp. 125–130. Trimble v. Hill (1879) 5 App. Cas. 342, p. 345, quoted in Finn, p. 166. See Castles, ‘Reception’, pp. 5–13; J. W. Harris, ‘The Privy Council and the Common Law’, Law Quarterly Review, vol. 106, 1990, p. 574; A. R. Blackshield, The Abolition of Privy Council Appeals: Judicial Responsibility and ‘The Law for Australia’, Adelaide Law Review Association, Adelaide, 1978. Trimble v. Hill and the similar Robins v. National Trust Co. [1927] AC 515, are both discussed by Harold Luntz, ‘Throwing off the Chains: English Precedent and the Law of Torts in Australia’, in The Emergence of Australian Law, eds M. P. Ellinghaus, A. J. Bradbrook and A. J. Duggan, Butterworths, Sydney, 1989, p. 71. Castles, Australian Legal History, pp. 246–248. Finn, esp. at pp. 6, 67, 84–87, 108, ch. 7; and see John Gava, ‘The Revolution in Bankruptcy Law in Colonial New South Wales’, in Emergence. J. M. Bennett and J. R. Forbes, ‘Tradition and Experiment: Some Australian Legal Attitudes in the Nineteenth Century’, University of Queensland Law Journal, vol. 7, 1971, pp. 181–182, argue to the contrary, that judicial independence increased during the second half of the nineteenth century. Castles, Australian Legal History, p. 266. Symonds v. Morgan: see Castles, Australian Legal History, pp. 276–280, 406; Bennett, Pedder, pp. 21–24; Baker, ‘Early Judges’, p. 75; and on amoval, Therry, pp. 344–345. On Montagu, see Robson, pp. 159, 297, 335, 390, 468–473; Baker, ‘Early Judges’, pp. 78–80; Australian Dictionary of Biography. Melville, p. 285. Castles, Australian Legal History, pp. 188–190, 319, 348–353; and see A. C. Castles and M. Harris, Lawmakers and Wayward Wigs: Government and Law in South Australia, 1836–1986, Wakefield Press, Adelaide, 1987, pp. 74, 205; Enid Russell, A History of the Law in Western Australia and its Development from 1829 to 1979, UWAP, Perth, 1980, pp. 153, 198–199; Bennett, Supreme Court, pp. 62–67, 99–103. There was innovation in Queensland: B. H. McPherson, The Supreme Court of Queensland 1859–1960: History Jurisdiction Procedure, Butterworths, Sydney, 1989, pp. 135–136, and see pp. 100–103. Castles, Australian Legal History, pp. 280–281, 293, 319, 344; Castles and Harris, pp. 74–75, 172–173, 204–205; Court in the Colony, J. N. D. Harrison ed., Law Society of Tasmania, Hobart, 1974, p. 20.

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35 J. M. Bennett, A History of Solicitors in New South Wales, Legal Books, Sydney, 1984, pp. 51–52. 36 Currey, Forbes, p. 447. 37 Bennett, Solicitors, pp. 40, 105; A. Halloran, ‘Some Early Legal Celebrities (Second Series)’, JRAHS, vol. 10, 1924, p. 318. 38 See Castles and Harris, pp. 75–77, 215–216, 376; A History of the New South Wales Bar, J. M. Bennett ed., LBC, Sydney, 1969, ch. 1; Bennett, Solicitors, ch. 3; Bennett and Forbes, pp. 182–194; Therry, pp. 340–341; Ruth Knight, Illiberal Liberal, MUP, Melbourne, 1966, pp. 153–154; Currey, Forbes, p. 76, ch. 44; Arthur Dean, A Multitude of Counsellors: A History of the Bar of Victoria, Cheshire, Melbourne, 1968, ch. 6; McPherson, pp. 79–80, 228–229, 348–349; Russell, pp. 69–72; Harrison Moore, ‘A Century of Victorian Law’, Journal of Comparative Legislation and International Law, series 3, vol. 16, 1934, pp. 188–189; Ross Johnston, History of the Queensland Bar, Bar Association of Queensland, Brisbane, 1978, p. 33. 39 Behan; Castles, Australian Legal History, pp. 193–194, 239–244; Therry, pp. 341–345; Dean, pp. 11–17. 40 Qld costs: McPherson, p. 132. NSW delays: J. M. Bennett, The Separation of Jurisdictions in the Supreme Court of New South Wales 1824–1900, LL M thesis, Sydney University, 1963, p. 33. 41 Bennett, Supreme Court, p. 95. Separation of law and equity: Bennett, Separation; Castles and Harris, p. 74; Castles, Australian Legal History, pp. 193–197, 319, 347–348; Bennett, Supreme Court, ch. 5. 1843 proposal: Castles, Australian Legal History, p. 197. 42 Castles, Australian Legal History, p. 197. 43 See Castles, Australian Legal History, pp. 354–361; Bennett, Supreme Court, p. 67, ch. 5; Russell, pp. 198–199; McPherson, pp. 135–136, ch. 6; Bennett and Forbes, pp. 173–174; J. M. Bennett, ‘Historical Trends in Australian Law Reform’, Western Australian Law Review, vol. 9, 1969–70, pp. 227–232. 44 On Boothby and the Colonial Laws Validity Act, see Castles and Harris, ch. 4; Castles, Australian Legal History, pp. 406–411; Castles, ‘Reception’, pp. 22–26. 45 Quoted by Castles, ‘Reception’, p. 24. 46 Phillips v. Eyre (1870) LR 6 QB 1, pp. 20–21; Castles, Australian Legal History, p. 409; Castles, ‘Reception’, pp. 26–27. 47 Extra-territorial powers: McPherson, pp. 84–88. Civil Court Commissioner: Russell, pp. 150–151. 48 Powell v. Apollo Candle Co. (1885) 10 App. Cas. 282, pp. 289–290. 49 Davidson, ch. 6. 50 See Alex Castles, ‘Some Uncertain Foundations of Judicial Review in Australia’, ALJ, vol. 62, 1988, p. 380; Richard Lucy, ‘The Division of Powers between the British Empire and its Australian Self-Governing Colonies, 1855– 1900’, AJLS, vol. 6, 1990, p. 83. 51 Castles, Australian Legal History, p. 404. 52 See McPherson, pp. 55, 60–63. 53 Finn, ch. 6 esp. In Tasmania, see (1859) 23 Vic. No. 1. 54 See Bennett and Forbes, pp. 172–173. On innovation and copying in Victoria, see Moore.

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55 Duplication of statutes: Castles, Australian Legal History, pp. 178–179; and see C. H. Currey, ‘The Influence of the English Law Reformers of the Early 19th Century on the Law of New South Wales’, JRAHS, vol. 23, 1937, p. 229. Not ‘beyond the seas’: Castles, Australian Legal History, pp. 453–455, 485; and see Russell, ch. 28.

CHAPTER 6 REPUGNANT

L E G I S L A T I O N : L AW

MAKING FROM 1824 TO RESPONSIBLE GOVERNMENT

1 Lloyd Robson, A History of Tasmania, vol. 1, OUP, Melbourne, 1983, pp. 48–49, 52–53, 55, 141–144, 184–186, ch. 6; Alex Castles, An Australian Legal History, LBC, Sydney, 1982, pp. 79–80. 2 John Phillips, The Trial of Ned Kelly, LBC, Sydney, 1987, pp. 113–114. 3 R. Therry, Reminiscences of Thirty Years’ Residence in New South Wales and Victoria, 1863, reprint SUP, Sydney, 1974, p. 43, and see pp. 167–169. 4 On bushranging and its control in NSW, see Paula Byrne, Criminal Law and Colonial Subject: New South Wales 1810–1830, CUP, Cambridge 1993, chs 5 and 6; Paula Byrne, ‘“The Public Good”: Competing Visions of Freedom in Early Colonial New South Wales’, Labour History, vol. 58, 1990, p. 76; C. H. Currey, Sir Francis Forbes: The First Chief Justice of the Supreme Court of New South Wales, Angus & Robertson, Sydney, 1968, ch. 39; Michael Sturma, Vice in a Vicious Society: Crime and Convicts in Mid-Nineteenth Century New South Wales, UQP, St Lucia, 1983, pp. 98–102, 166–167; J. B. Hirst, Convict Society and its Enemies: A History of Early New South Wales, Allen & Unwin, Sydney, 1983, ch. 3; J. B. Hirst, The Strange Birth of Colonial Democracy: New South Wales 1848–1884, Allen & Unwin, Sydney, 1988, chs 8 and 13. I have also relied on student essays written in 1993 by Macquarie University students, Joshua Barr, Noel Greenaway, Adrian Harrison and Thomas Smith. The first Bushranging Act was (1830) 11 Geo. IV No. 12. 5 Currey, Forbes, pp. 417–418. 6 Therry, p. 47. 7 For a general history of policing in Australia, see M. Finnane, Police and Government: Histories of Policing in Australia, OUP, Melbourne, 1994; see ch. 1 on these themes. Police and magistrates: Hilary Golder, High and Responsible Office: A History of the NSW Magistracy, SUP, Sydney, 1991; David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, CUP, Cambridge, 1991, chs 5 and 6; David Neal, ‘Law and Authority: The Magistracy in New South Wales 1788–1840’, Law in Context, vol. 3, 1985, p. 45; Byrne, Colonial Subject, ch. 6; T. A. Weber, ‘The Origins of the Victorian Magistracy’, Australian and New Zealand Journal of Criminology, vol. 13, 1980, p. 142; John McLaughlin, ‘The Magistracy and the Supreme Court of New South Wales, 1824–1850: A Sesqui-Centenary Study’, JRAHS, vol. 62, 1976, p. 91; John McLaughlin, The Magistracy in New South Wales, 1788–1850, LL M thesis, University of Sydney, 1973; Lorraine Barlow, ‘A Strictly Temporal Office? N.S.W. Police Magistrates 1830–1860’, Law and History in Australia, ed. Diane Kirkby, vol. 3, La Trobe University, Bundoora, 1987, p. 50. VDL: Castles, Australian Legal History, pp. 283–287. SA: Alex Castles and Michael Harris,

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Lawmakers and Wayward Wigs: Government and Law in South Australia 1836– 1986, Wakefield Press, Adelaide, 1987, pp. 45, 87–88. See Roger Milliss, Waterloo Creek: The Australia Day Massacre of 1838, George Gipps and the British Conquest of New South Wales, McPhee Gribble, Ringwood, 1992, pp. 15–17. Centralised police: John McQuilton, ‘Police in Rural Victoria: A Regional Example’, in Policing in Australia: Historical Perspectives, ed. Mark Finnane, UNSWP, Sydney, 1987; Australians 1888, eds Graeme Davison, J. W. McCarty and Ailsa McLeary, Fairfax, Syme & Weldon, Sydney, 1987, pp. 367–369; E. M. Russell, A History of the Law in Western Australia and its Development from 1829 to 1979, UWAP, Perth, 1980, ch. 16; Castles, Australian Legal History, p. 287. See Hirst, Strange Birth, chs 8 and 13; C. M. H. Clark, A History of Australia, vol. 4, MUP, Melbourne, 1980, pp. 201–210. On policing in the later period, see Michael Sturma, ‘Policing the Criminal Frontier in Mid-Nineteenth Century Australia, Britain and America’, in Policing in Australia; Sturma, Vice. Native police: L. E. Skinner, Police of the Pastoral Frontier: Native Police 1849–1859, UQP, St Lucia, 1975. Phillips; Clark, vol. 4, pp. 324–337 (quotation at p. 335). See Adrian Merritt, ‘The Historical Role of Law in the Regulation of Employment: Abstentionist or Interventionist?’, AJLS, vol. 1, 1982, p. 56; Rob McQueen, ‘Master and Servants Legislation in the 19th Century Australian Colonies’, in Law and History in Australia, vol. 4, p. 78; Rob McQueen, ‘Master and Servant Legislation as “Social Control”: The Role of Law in Labour Relations on the Darling Downs 1860–1870’, Law in Context, vol. 10, 1992, p. 123. Castles, Australian Legal History, pp. 388–389; Golder, p. 25; and see Currey, Forbes, pp. 181–183. Bruce Kercher, The Development of Law in the New South Wales Court of Civil Jurisdiction, 1788–1814, PhD thesis, Macquarie University, 1992, pp. 47, 309– 311. Merritt, pp. 72–74 shows a similar looseness by later magistrates. McQueen, ‘19th Century’, pp. 82–84; Clark, vol. 3, p. 183; Sturma, Vice, p. 120. See Byrne, Colonial Subject, pp. 214–217. On the vagueness of work agreements, see Bruce Kercher, ‘Commerce and the Development of Contract Law in Early New South Wales’, Law and History Review, vol. 9, 1991, pp. 299–306; Merritt, pp. 76–79. McQueen, ‘19th Century’; McQueen, ‘Darling Downs’; and see Castles, Australian Legal History, p. 469, on the use of the law against a strike. See also Michael O’Connor, ‘Policing in a Country Town, the 1860s and Today’, paper presented to Third Australian Law and Society Conference, 1985; Golder, p. 105. Universalising tendency of legislation: Merritt. The main sources on debt-recovery law used here are Bruce Kercher and Michael Noone, Remedies, 2nd edn, LBC, Sydney, 1990, ch. 2; Michael Tilbury, Michael Noone and Bruce Kercher, Remedies: Commentary and Materials, 2nd edn, LBC, Sydney, 1993, chs 8 and 9. I also used John Gava, ‘The Revolution in Bankruptcy in Colonial New South Wales’, in The Emergence of Australian

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Law, eds M. P. Ellinghaus, A. J. Bradbrook and A. J. Duggan, Butterworths, Sydney, 1989; C. H. Currey, Chapters on the Legal History of New South Wales 1788–1863, doctoral thesis, University of Sydney, 1929, ch. 24. See also J. M. Bennett and J. R. Forbes, ‘Tradition and Experiment: some Australian Legal Attitudes of the Nineteenth Century’, University of Queensland Law Journal, vol. 7, 1971, pp. 175–178; J. M. Bennett, A History of the Supreme Court of New South Wales, LBC, Sydney, 1974, ch. 6; Currey, Forbes, chs 32, 40, 41; B. H. McPherson, The Supreme Court of Queensland 1859–1960: History Jurisdiction Procedure, Butterworths, Sydney, 1989, pp. 140–145. On the English campaign, see Bruce Kercher, ‘The Transformation of Imprisonment for Debt in England, 1828 to 1838’, AJLS, vol. 2, 1984, p. 60. Quotations from Tilbury, Noone and Kercher, pp. 820–823. Moorhouse: Tilbury, Noone and Kercher, p. 825. English insolvency and bankruptcy not applicable: Ex parte Lyons; in re Wilson (1839) 1 Legge 140. Kercher and Noone, pp. 16–17; Russell, pp. 110–111, 161; SA archives, GRG 24/6/2010. Tasmanian archives, CSO 1/8/117, p. 98. SA archives, GRG 24/1/1841/201. Currey, Chapters, pp. 385–386. Quotation, ‘altogether unfit’: Tilbury, Noone and Kercher, p. 825. Rules: see Castles, Australian Legal History, p. 244; McPherson, p. 141. Abolition in NSW: Gava, pp. 216–217; Currey, Chapters, p. 392; Ruth Knight, Illiberal Liberal: Robert Lowe in New South Wales, 1842–1850, MUP, Melbourne, 1966, pp. 61–62. Not true abolition: Theodore Fink, ‘Imprisonment for Debt’, Melbourne Review, vol. 5, 1880, p. 186; and see Bruce Kercher, ‘Imprisonment for Debt in the 1980s’, Western Australian Law Review, vol. 17, 1987, p. 3. Knight, p. 61. (1836) 6 Wm IV No. 10, ss 1, 81; (1867) 31 Vic. No. 16; Return on Imprisoned Debtors, Legislative Council 1867; Hobart Town Gazette, 28 September 1844, p. 4. See, for example, evidence of R. Therry to NSW Select Committee on Insolvent Debtors and Imprisonment for Debt, 1838. ‘Burton’s purge’ in ‘Whitewash Hall’: S. J. Butlin, Foundations of the Australian Monetary System 1788–1851, SUP, Sydney, 1953, p. 323. ‘Faithful Friend’: Tilbury, Noone and Kercher, pp. 825–826. The Act was (1841) 5 Vic. No. 17; see Gava on its passage and interpretation. A. H. Davis to Colonial Secretary, 29 June 1842, SA records GRG 24/6/1842/423. George Stephen, Insolvency Reform, Blundell & Co., Melbourne, 1868, p. 10. Petition by Henry Melville and others, and see petition by Alexander Clerke and others, 1842. On these Usury Acts, see (1830) 11 Geo. IV No. 6 (VDL); Votes and Proceedings of the Legislative Council, NSW, 1834, p. 187; David MacMillan, The Debtor’s War: Scottish Capitalists and the Economic Crisis in Australia 1841–1846, Cheshire, Melbourne, 1960; Butlin, pp. 244–247; Currey, Forbes, chs 40–41. Report from the Select Committee on the Preferable Lien on Wool Act, 1845; Castles, Australian Legal History, pp. 170–175; Castles and Harris, pp. 180–181;

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W. H. Moore, ‘A Century of Victorian Law’, Journal of Comparative Legislation and International Law, series 3, vol. 16, 1934, pp. 193–196. The main source used here is Stephen Roberts, The Squatting Age in Australia 1835–1847, 1935, reprint MUP, Melbourne, 1964. See also Castles, Australian Legal History, pp. 175–176, 215, 288–291, 456–458, 461; Clark, vol. 3, pp. 115, 121–123, 184, 195–197, chs 11–13; A. Davidson and A. Wells, ‘The Land, the Law and the State: Colonial Australia 1788–1890’, Law in Context, vol. 2, 1984, p. 89; Robson, vol. 1, pp. 447–448, ch. 10; T. H. Irving, ‘Francis Scott, Colonial Agent: Aristocratic Ideals and Empire in the 1840s’, JRAHS, vol. 74, 1989, p. 289; Alan Williams, ‘Colonial Origins of Land Acquisition Law in New South Wales and Queensland’, Journal of Legal History, vol. 10, 1989, p. 352; A. C. V. Melbourne, Early Constitutional Development in Australia, UQP, St Lucia, 1963, pp. 296–307; Alastair Davidson, The Invisible State: The Formation of the Australian State 1788–1901, CUP, Cambridge, 1991, pp. 65–76; Knight; Andrew Lang, Crown Land in New South Wales, Butterworths, Sydney, 1973, ch. 1. Roberts, pp. 82–83. Attorney-General of New South Wales v. Brown (1847) 2 SCR App. 30; Brendan Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law: English and Australian Land Law Compared after Mabo v Queensland’, AngloAmerican Law Review, 1994, vol. 23, p. 397. See King v. Steele, (1834), discussed in Currey, Forbes, pp. 464–467; and Davidson and Wells, p. 95; J. Oxley-Oxland and R. T. J. Stein, Understanding Land Law, LBC, Sydney, 1985, pp. 88–90. Crown grants invalid: Currey, Forbes, pp. 482–484. SA titles lost: Douglas Pike, ‘Introduction of the Real Property Act in South Australia’, Adelaide Law Review, vol. 1, 1961, p. 172. Power of commissioners: Castles, Australian Legal History, pp. 215–216, 289–292; Robson, vol. 1, pp. 205–206. W. K. Hastings, ‘The Wakefield Colonisation Plan and Constitutional Development in South Australia, Canada and New Zealand’, Journal of Legal History, vol. 11, 1990, p. 279. Roberts, chs 3, 6; Robson, vol. 1, p. 208. Lang, p. 8. See Roberts, pp. 74–75; Melbourne, p. 296; and in VDL, see Alex Castles, ‘The Vandemonian Spirit and the Law’, THRA, vol. 38, 1991, p. 113. Bourke’s Act: (1836) 7 Will. IV No. 4. Boyd’s run: Clark, vol. 3, p. 304. Roberts, pp. 85–86; (1839) 2 Vic. No. 27. See chapter 1, and see Golder, pp. 56–62. Scott v. Dight (1839) Gazette, 26 March 1839; Australian, 26 March 1839; Sydney Herald, 25 March 1839. See Therry, pp. 267–270. Knight, pp. 176–182.

CHAPTER 7 COLONIAL

F R E E D O M : L AW M A K I N G BETWEEN RESPONSIBLE GOVERNMENT AND 1900

There are few general studies of colonial legislation from responsible government until the end of the nineteenth century, apart from Alex Castles, An Australian Legal History, LBC, Sydney, 1982, ch. 16. For the most part, topics such as mining

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law, immigration, and women’s suffrage have been studied separately rather than as part of a broad pattern of law making. 1 Copying of commercial law: Castles, pp. 453–454, 485. On the commercial codes, see Robert Ferguson, ‘Legal Ideology and Commercial Interests: The Social Origins of the Commercial Law Codes’, British Journal of Law and Society, vol. 4, 1977, p. 18. 2 Some of the criminal law cases had distinctively Australian features. See, for example, the Knatchbull case, tried by Burton: Ruth Knight, Illiberal Liberal: Robert Lowe in New South Wales, 1842–1850, MUP, Melbourne, 1966, pp. 65–69, 117–118; R. Therry, Reminiscences of Thirty Years’ Residence in New South Wales and Victoria, 1863, reprint SUP, Sydney, 1974, pp. 100–104; Michael Sturma, Vice in a Vicious Society: Crime and Convicts in Mid-Nineteenth Century New South Wales, UQP, St Lucia, 1983, pp. 35–39, 42. On the Louisa Collins case, which combined debates about the jury system, the punishment of women and capital punishment, see Alan Sharpe, The Crimes that Shocked Australia, Currawong Press, Milson’s Point, 1982, ch. 14, and contemporary newspaper comments from December 1888 to January 1889. On the copying of English law, see J. M. Bennett, A History of the Supreme Court of New South Wales, LBC, Sydney, 1974, pp. 71–75. On criminal law, see also Michael Sturma, ‘Seduction and Punishment in Late Nineteenth Century New South Wales’, AJLS, vol. 2, 1985, p. 76; Lyn Finch, ‘Seduction and Punishment’, Hecate, vol. 16, 1990, p. 8; David Philips, ‘Sex, Race, Violence and the Criminal Law in Colonial Victoria: Anatomy of a Rape Case in 1888’, Labour History, vol. 52, 1987, p. 30; Stephen Garton, ‘Policing the Dangerous Lunatic: Lunacy Incarceration in New South Wales, 1843–1914’, in Policing in Australia: Historical Perspectives, ed. Mark Finnane, UNSWP, Sydney, 1987. 3 Innovation: Mark Finnane, ‘Penality and Policy: Griffiths and the Limits of Law Reform in Colonial Queensland’, Australian Cultural History, vol. 8, 1989, p. 85. Early release: Stephen White, ‘The Pitfalls of Imitation: The New South Wales First Offenders Probation Act of 1894’, Victoria University of Wellington Law Review, vol. 13, 1983, p. 137; Finnane, pp. 90–92. Codification and consolidation: Castles, pp. 481–489; Finnane, pp. 87–90; W. H. Moore, ‘A Century of Victorian Law’, Journal of Comparative Legislation and International Law, series 3, vol. 16, 1934, pp 183–185; B. H. McPherson, The Supreme Court of Queensland 1859–1960: History Jurisdiction Procedure, Butterworths, Sydney, 1989, pp. 269–271. 4 On selection, see John Hirst, The Strange Birth of Colonial Democracy: New South Wales 1848–1884, Allen & Unwin, Sydney, 1988, pp. 88–92, ch. 9; Castles, pp. 457, 461–465; C. M. H. Clark, A History of Australia, vol. 4, MUP, Melbourne, 1978, ch. 9; Therry, pp. 470–474; Lloyd Robson, A History of Tasmania, vol. 2, OUP, Melbourne, 1991, pp. 28–29, 99–105; Enid Russell, A History of Law in Western Australia and its Development from 1829 to 1979, UWAP, Perth, 1980, pp. 251–255; A. Davidson and A. Wells, ‘The Land, the Law and the State: Colonial Australia 1788–1890’, Law in Context, vol. 2, 1984, pp. 107–110; Alex Castles and Michael Harris, Lawmakers and Wayward Wigs: Government and Law in South Australia 1836–1986, Wakefield Press, Adelaide, 1987, pp. 179–180; Alastair Davidson, The Invisible State: the For-

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mation of the Australian State 1788–1901, CUP, Cambridge, 1991, pp. 197–198, 245; Kenneth Allars, ‘Sir William Westbrooke Burton’, JRAHS, vol. 37, 1951, pp. 291–294; Andrew Lang, Crown Land in New South Wales, Butterworths, Sydney, 1973, ch. 1. Crown Lands Alienation Act 1861; Crown Lands Occupation Act 1861. See Castles, p. 462. Legality of selection for children: Drinkwater v. Arthur (1871) 10 SCR 193; Joachim v. O’Shanassy (1874) 13 SCR 174; O’Shanassy v. Joachim (1876) 1 App. Cas. 82. Bad faith selections: Castles, pp. 463–464. Hirst, pp. 135, 141–142. Conditional purchase outside NSW: see, for example, Vic.: 25 Vic. No. 145. Qld: 31 Vic. No. 46. SA: Strangways Act 1869. VDL: Waste Lands Act 1858. WA: Russell, pp. 253–254. Class clashes: Clark, vol. 4, pp. 167–168. Tasmanian compulsory purchases: Robson, vol. 2, pp. 264–265. Paul Finn, Law and Government in Colonial Australia, OUP, Melbourne, 1987, p. 44 and see 70–71. See p. 50 on the administration of the land Acts. See, for example, his depressing ‘Water Them Geraniums’, in Henry Lawson Favourites, Viking O’Neil, Ringwood, 1987. Robson, vol. 2, pp. 407–410, 507–508; Clark, vol. 6, pp. 141, 179–180, 227; Albert Facey, A Fortunate Life, Penguin, Ringwood, 1981, chs 62–64. On soldier settlement in the nineteenth century, see Lang, p. 10. Nostalgia for £10 licence: see Rolf Boldrewood (Thomas Browne), Robbery Under Arms, Essays and Short Stories, UQP, St Lucia, 1979, p. 423. Water rights: Castles, pp. 464–466. Torrens system: see Douglas Pike, ‘Introduction of the Real Property Act in South Australia’, Adelaide Law Review, vol. 1, 1961, p. 169; Castles and Harris, pp. 174–178, 215–216; Castles, pp. 457–461; Andrew Buck, ‘The Logic of Egalitarianism: Law, Property and Society in Mid-Nineteenth Century New South Wales’, Law in Context, vol. 5, 1987, p. 18; Russell, ch. 26; Davidson, pp. 246–248. Land registration: Pike; J. Oxley-Oxland and R. T. J. Stein, Understanding Land Law, LBC, Sydney, 1985, ch. 10. Attack on indefeasibility: see Davidson, pp. 247–248. English system: W. R. Cornish and G. de N. Clark, Law and Society in England 1750–1950, Sweet & Maxwell, London, 1989, pp. 172–178. The main source used on Eureka is John Molony, Eureka, Penguin, Ringwood, 1989; and on the abolition of the local courts, Robin Sharwood, ‘The Local Courts on Victoria’s Gold Fields, 1855 to 1857’, Melbourne University Law Review, vol. 15, 1986, p. 508. See also Raffaello Carboni, The Eureka Stockade, 1855, reprint MUP, Melbourne, 1993; Sturma, Vice, pp. 72–74, 174–175; John Phillips, ‘The Eureka Advocates’, ALJ, vol. 64, 1990, pp. 211, 290, 356; Clark, vol. 4, pp. 68–83; Ken Buckley and Ted Wheelwright, No Paradise for Workers: Capitalism and the Common People in Australia 1788–1914, OUP, Melbourne, 1988, pp. 8, 113–114; Arthur Dean, A Multitude of Counsellors: A History of the Bar of Victoria, Cheshire, Melbourne, 1968, pp. 33–40. Licence enforcement in NSW: Hirst, pp. 98–99, ch. 12; Hilary Golder, High and Responsible Office: A History of the New South Wales Magistracy, SUP, Sydney, 1991, pp. 68–70; Sturma, Vice, pp. 72–73, 174–175.

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17 Molony, p. 100. 18 18 Vic. No. 37 (Vic.); see Sharwood on its abolition. On the New South Wales experiment with local courts, see Hirst, pp. 212–214. 19 Moore, pp. 192–193; Castles, pp. 467–468; J. M. Bennett and A. C. Castles, A Source Book of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries, LBC, Sydney, 1979, pp. 161–162. On mining law in Western Australia, see Russell, ch. 27. 20 English legislation: Cornish and Clark, pp. 254–257. Laissez faire basis: Rob McQueen, ‘Laissez-Faire Fraud and the Company or the Criminality of Corporations’, conference paper, Law and Society Conference, Macquarie University, 1984. 21 Castles, pp. 468–469; Rob McQueen, ‘Limited Liability Company Legislation: the Australian Experience 1864–1920’, in Law and History in Australia, ed. S. Corcoran, University of Adelaide, Adelaide, 1991. 22 John Waugh, ‘Company Law and the Crash of the 1890s in Victoria’, University of New South Wales Law Journal, vol. 15, 1992, p. 356; Moore, pp. 182–183. See also John Waugh, ‘The Centenary of the Voluntary Liquidation Act 1891’, Melbourne University Law Review, vol. 18, 1991, p. 170. 23 McQueen, ‘Limited Liability’; Rob McQueen, ‘An Examination of Australian Corporate Law and Regulation 1901–1961’, University of New South Wales Law Journal, vol. 15, 1992, p. 1. See also Rob McQueen, ‘Why High Court Judges Make Poor Historians: The Corporations Act Case and Early Attempts to Establish a National System of Company Regulation in Australia’, Federal Law Review, vol. 19, 1990, p. 245. 24 Huddart, Parker & Co. Pty Ltd v. Moorehead (1909) 8 CLR 330: see David Solomon, The Political Impact of the High Court, Allen & Unwin, Sydney, 1992, ch. 4; McQueen, ‘Examination’. 25 See, for example, Morton Horwitz, The Transformation of American Law, 1780– 1860, Harvard University Press, Cambridge, 1977; and in reply, Peter Karsten, ‘Explaining the Fight Over the Attractive Nuisance Doctrine: A Kinder, Gentler Instrumentalism in the “Age of Formalism”’, Law and History Review, vol. 10, 1992, p. 44. 26 Paul Finn has written on the government’s liability for defective roads: Finn, pp. 71–74, 111–112; and see on the railways, pp. 66–67, 69, 82, 95, 130. 27 Thomson v. Commissioner for Railways (1863) 2 SCR (L) 292, p. 302. See also Gallogly v. Melbourne and Hobson’s Bay United Railway Co. (1875) 1 VLR 58. The rule was applied strictly in a Queensland motor car case: McPherson, p. 238. 28 Report of the Commissioner for Railways, 1877, NSW, pp. 32–34. Other employers: Russell, pp. 241–242. 29 Brown v. Board of Land and Works (1882) 8 VLR 414, p. 424. 30 Peter Maddox, ‘The Background of, and Contemporary Reaction to, the Matrimonial Causes Act, 1857’, Cambrian Law Review, vol. 18, 1987, p. 62; Cornish and Clark, pp. 382–398. 31 J. M. Bennett, Supreme Court, pp. 144–145; J. M. Bennett, ‘The Establishment of Divorce Laws in New South Wales’, Sydney Law Review, vol. 4, 1963, p. 242;

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Hilary Golder, Divorce in 19th Century New South Wales, UNSWP, Sydney, 1985, p. 52. Bridget Brooklyn, ‘Nothing to Lose: Women and Divorce in South Australia 1859–1918’, Law in Context, vol. 8, no. 2, 1990, p. 70; Castles and Harris, pp. 183, 186–187, 190; McPherson, pp. 145–151. See also Russell, pp. 167–168. J. M. Bennett, ‘Establishment’, p. 247. R. Campbell, ‘Desertion and Divorce: The Colony of Victoria, Australia, 1860’, Law, Litigants and the Legal Profession, eds E. W. Ives and A. H. Manchester, Royal Historical Society, London, 1983, p. 208. Golder, Divorce; and see J. M. Bennett, ‘Establishment’; J. M. Bennett, Supreme Court, ch. 9. Golder, Divorce, p. 169. Hilary Golder, ‘An Exercise in Unnecessary Chivalry: The NSW Matrimonial Causes Act Amendment Act of 1881’, in In Pursuit of Justice: Australian Women and the Law 1788–1979, eds J. Mackinolty and H. Radi, Hale & Iremonger, Sydney, 1979; Golder, Divorce, ch. 4; and see Margaret James, ‘The Class Dimension in the History of Divorce: Evidence from a Victorian Case-Study’, Law in Context, vol. 6, 1988, p. 74. Margaret James, ‘Not Bread but a Stone: Women and Divorce in Colonial Victoria’, in Families in Colonial Australia, eds P. Grimshaw, C. McConville and E. McEwen, Allen & Unwin, Sydney, 1985. 1890 and 1892 reforms: Golder, Divorce, ch. 5; and see Margaret James, ‘Double Standards in Divorce: Victoria, 1890–1960’, in Pursuit of Justice. On the 1959 Act, see Margaret James, ‘Muted Voices: Women and the Matrimonial Causes Act 1959’, Law and History in Australia, vol. 4, ed. Diane Kirkby, La Trobe University, Bundoora, 1987. Brooklyn; and see P. Grimshaw, M. Lake, A. McGrath and M. Quartly, Creating a Nation, McPhee Gribble, Melbourne, 1994. Castles and Harris, p. 189. On dower and its abolition, see Andrew Buck, ‘“A Blot on the Certificate”: Dower and Women’s Property Rights in Colonial New South Wales’, AJLS, vol. 4, 1987, p. 87 (emphasising land); Rosalind Atherton, ‘Expectation without Right: Testamentary Freedom and the Position of Women in 19th Century New South Wales’, University of New South Wales Law Journal, vol. 11, 1988, p. 133 (emphasising succession). Atherton, ‘Expectation’, examines the cases on challenges to wills, one of the few extended studies of nineteenth-century Australian case law. On married women’s property laws, see John Mackinolty, ‘The Married Women’s Property Acts’, in Pursuit of Justice; History and Philosophy of Law materials, eds Rosemary Hunter and John Waugh, University of Melbourne, 1989, pp. 87–104, relying on Elizabeth Warbasse, The Changing Legal Rights of Married Women 1800–1861, Garland Publishing, New York, 1987, pp. 294–298 esp; Cornish and Clark, pp. 398–402. There was no Act in New South Wales until 1879: Atherton, ‘Expectation’, p. 134. See Rosalind Atherton, ‘The Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW): Husband’s Power or Widow’s Right’, AJLS, vol. 6, 1990, p. 97.

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46 Female suffrage: Castles and Harris, p. 173; Cornish and Clark, p. 83. On the franchise for Aborigines, see Beth Gaze and Melinda Jones, Law, Liberty and Australian Democracy, LBC, Sydney, 1990, pp. 87–94. Madden prediction: Clark, vol. 5, p. 192. English reform: Cornish and Clark, p. 402. 47 There are many studies: Andrew Frazer, ‘Conceptions of Law and Industrial Arbitration in New South Wales, 1880–1901’, in Law and History in Australia, vol. 4; Andrew Frazer, ‘Delimiting Industrial Law: Judicial Review and the New South Wales Arbitration System, 1901–1914’, paper for Law in History Conference, Griffith University, 1992; Laura Bennett, Making Labour Law in Australia: Industrial Relations, Politics and Law, LBC, Sydney, 1994; Davidson, pp. 219–230; Clark, vol. 5, pp. 60, 243–245, 286–287; and Hunter and Waugh, pp. 110–129, especially Michael Quinlan, ‘“Pre-Arbitral” Labour Legislation in Australia: Its Implications for the Introduction of Compulsory Arbitration’, in Foundations of Arbitration: The Origins and Effects of State Compulsory Arbitration 1890–1914, OUP, Melbourne, 1989; Richard Mitchell, ‘State Systems of Conciliation and Arbitration: the Legal Origins of the Australasian Model’, in Foundations of Arbitration: The Origins and Effects of State Compulsory Arbitration, 1890–1914, eds S. Macintyre and R. Mitchell, OUP, Melbourne, 1989; R. J. Hawke, ‘The Commonwealth Arbitration Court: Legal Tribunal or Economic Legislature?’, University of Western Australia Annual Law Review, vol. 3, 1956, p. 422; Rosemary Hunter, ‘Women Workers and Federal Industrial Law: From Harvester to Comparable Worth’, Australian Journal of Labour Law, vol. 1, 1988, p. 147. For a detailed study, see Andrew Frazer, Law and Industrial Arbitration in New South Wales, 1890–1912, PhD thesis, Australian National University, 1990. 48 H. B. Higgins, A New Province for Law and Order, Government Printer, Melbourne, 1920. 49 Frazer, ‘Conceptions’, p. 124. 50 Mitchell; Frazer, ‘Conceptions’; Castles and Harris, pp. 190–192; R. W. Connell and T. H. Irving, Class Structure in Australian History: Documents, Narrative and Argument, Longman Cheshire, Melbourne, 1980, pp. 216–218; Davidson, pp. 225–230. 51 Mitchell; Frazer, ‘Conceptions’. 52 Quinlan; Frazer, ‘Conceptions’; Connell and Irving, pp. 134–135; Clark, vol. 5, pp. 242–244. 53 L. Bennett, ch. 3; Frazer, ‘Delimiting’; and see David Plowman and Graham Smith, ‘Moulding Federal Arbitration’, Australian Journal of Management, vol. 11, 1986, p. 205. 54 Hunter; Nettie Palmer, Henry Bourne Higgins: A Memoir, Harrap & Co., London, 1931, ch. 29; Connell and Irving, pp. 232–236; Clark, vol. 5, pp. 286–287; John Rickard, H. B. Higgins: The Rebel as Judge, Allen & Unwin, Sydney, 1984. 55 Hunter and Waugh are particularly useful on immigration laws and their background; they rely on convention debates, Hansard, cases, statutes and J. Quick and R. R. Garran, The Annotated Constitution of the Australian Commonwealth, 1st edn, 1901, reprint Legal Books, Sydney, 1976, pp. 624–627. 56 See Hirst, ch. 10; Clark, vol. 4, pp. 128–134.

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57 On the legislative history from 1855 to 1897, see Quick and Garran, pp. 624–627. For comparison, see John McLaren, ‘The Early British Columbia Judges, the Rule of Law and the “Chinese Question”: The Californian and Oregon Connection’, in Law for the Beaver, Law for the Elephant: Essays in the Legal History of the North American West, eds John McLaren, Hamar Foster and Chet Orloff, Ninth Judicial Circuit Historical Society, Pasadena, 1992. On anti-opium laws in this period, see Terry Carney, ‘The History of Australian Drug Laws: Commercialism to Confusion?’, Melbourne University Law Review, vol. 7, 1981, pp. 176–180. 58 Chung Teong Toy v. Musgrove (1888) 14 VLR 349; Musgrove v. Chung Teong Toy [1891] AC 272. See Zelman Cowen, Sir John Latham and other Papers, OUP, Melbourne, 1965, pp. 121–123; Finn, pp. 84–86. 59 Finn, pp. 42–43. 60 Official Report of the National Australasian Convention Debates, 1891, reprint Legal Books, Sydney, 1986; Australia, Parliamentary Debates, 1901–1902, vol. 3, pp. 3497f (both in Hunter and Waugh); Clark, vol. 5, pp. 200–202; Cowen, pp. 82–83. 61 Pacific labourers: McPherson, pp. 90–91; Clark, vol. 4, pp. 355–356, and vol. 5, pp. 201–204; Buckley and Wheelwright, pp. 250–256: Dean, pp. 63–65. On Boyd’s use of Pacific Island labour, see Knight, pp. 171–172. 62 R. v. Carter; ex parte Kisch (1934) 52 CLR 221; R. v. Wilson; ex parte Kisch (1934) 52 CLR 234. See Clark, vol. 6, pp. 469–475; Kylie Tennant, Evatt: Politics and Justice, Angus & Robertson, Sydney, 1970, pp. 88–91; Peter Crockett, Evatt: A Life, OUP, Melbourne, 1993, pp. 84–85, 87, 119. 63 Golder, High and Responsible, ch. 3, p. 175. 64 Therry, p. 319. 65 Australian Courts of Requests: Castles, pp. 207–211, 282–283, 367–371, and see 322–324. The Rules of the Courts of Requests under Roger Therry were published in Francis Low, The City of Sydney Directory, Alcock, Sydney, 1844. England: W. H. Winder, ‘The Courts of Requests’, Law Quarterly Review, vol. 52, 1936, p. 369; H. W. Arthurs, ‘Without the Law’: Administrative Justice and Legal Pluralism in Nineteenth-Century England, University of Toronto Press, Toronto, 1985, pp. 25–34. Lawyers’ opposition: Australian, 5 August 1842, p. 2; 24 February 1842, p. 2; 19 August 1842, p. 2; 22 August 1842, p. 2; see also ‘Petition of Certain Inhabitants of the Northern Division of the Island’, Van Diemen’s Land Legislative Council, 1852. 66 Australian County and District Courts: H. T. E. Holt, A Court Rises: The Lives and Times of the Judges of the District Court of New South Wales (1859–1959), Law Foundation of NSW, Sydney, 1976; Castles, pp. 367–371. English County Courts: Arthurs, pp. 43–44, 173. Travelling allowance: Holt, pp. 8, 37. 67 See, for example, Holman v. Deol [1979] 1 NSWLR 640; Esanda Finance Corporation Ltd v. Murphy (1989) ASC 55–703; Australian Group Financial Services (NSW) Ltd v. Bogan (1989) ASC 55–938. 68 Arthurs, ch. 6.

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C H A P T E R 8 C R E E P I N G T O WA R D S L E G A L INDEPENDENCE, 1901–1960 The best study of the Privy Council in relation to Australia is A. R. Blackshield, The Abolition of Privy Council Appeals: Judicial Responsibility and ‘The Law for Australia’, Adelaide Law Review Association, Adelaide, 1978. I relied on Michael Coper, Encounters with the Australian Constitution, C.C.H. Australia, North Ryde, 1987, on constitutional law. The themes of this chapter and chapter 9 are also evident in some of the essays in The Emergence of Australian Law, eds M. P. Ellinghaus, A. J. Bradbrook and A. J. Duggan, Butterworths, Sydney, 1989. 1 On the drafting of the constitution, see especially J. A. La Nauze, The Making of the Australian Constitution, MUP, Melbourne, 1972. See also Coper, ch. 2; Essays in Australian Federation, ed. A. W. Martin, MUP, Melbourne, 1969; Peter McDermott, ‘External Affairs and Treaties: The Founding Fathers’ Perspective’, University of Queensland Law Journal, vol. 16, 1990, p. 123. Three cheers: Coper, p. 73. 2 WA secession: Christopher Besant, ‘Two Nations, Two Destinies: A Reflection on the Significance of the Western Australian Secession Movement to Australia, Canada and the British Empire’, Western Australian Law Review, vol. 20, 1990, pp. 209–310. Federal Council of Australasia: Coper, pp. 61–63; A. C. Castles and M. Harris, Lawmakers and Wayward Wigs: Government and Law in South Australia, 1836–1986, Wakefield Press, Adelaide, 1987, pp. 149, 229–230. 3 Richard Lucy, ‘The Division of Powers between the British Empire and its Australian Self-governing Colonies, 1855–1900’, AJLS, vol. 6, 1990, p. 83. See also Anthony Mason, ‘The Role of a Constitutional Court in Federation: A Comparison of the Australian and United States Experience’, Federal Law Review, vol. 16, 1986, p. 1; C. J. G. Sampford, ‘Reconciling Responsible Government and Federalism’, in Emergence, ch. 16; Stephen Gageler, ‘Foundations of Australian Federalism and the Role of Judicial Review’, Federal Law Review, vol. 17, 1987, p. 162. 4 La Nauze, Making, p. 173. 5 B. K. de Garis, ‘The Colonial Office and the Commonwealth Constitution Bill’, in Essays in Australian Federation; La Nauze, Making, pp. 25, 40, 56, 67, 71, 73, 86, 137, 160, 172–173, 184–185, 218–223, 248–249, 252–254, 260– 269; A. J. Hannan, The Life of Chief Justice Way, Angus & Robertson, Sydney, 1960, pp. 184–193; Roger Joyce, Samuel Walker Griffith, UQP, St Lucia, 1984, pp. 210–215; Zelman Cowen, Isaac Isaacs, UQP, St Lucia, 1993, p. 67. On the legal effect of the Privy Council, see Blackshield, Abolition. 6 Cowen, Isaacs, p. 87. 7 Cowen, Isaacs, ch. 8. 8 Merchant Shipping Act: Gerard Carter, ‘The Imperial Merchant Shipping Act Story’, ALJ, vol. 66, 1992, p. 359; La Nauze, Making, pp. 172, 251–252, 254, 257. 9 George Reid, quoted in Cowen, Isaacs, p. 68. 10 See J. A. La Nauze, ‘A Little Bit of Lawyers’ Language: The History of “Absolutely Free” 1890–1900’, in Essays in Australian Federation, p. 58. 11 See Coper, p. 50; Alastair Davidson, The Invisible State: The Formation of the

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Australian State 1788–1901, CUP, Cambridge, 1991, p. 239. For a bibliography on this, see James Thomson, ‘Constitutional Interpretation: History and the High Court: A Bibliographical Survey’, University of New South Wales Law Journal, vol. 5, 1982, p. 309. Eddy Neumann, The High Court of Australia: A Collective Portrait 1903–1972, University of Sydney, Sydney, 1973. For biographies of them, see J. M. Bennett, Keystone of the Federal Arch: A Historical Memoir of the High Court of Australia to 1980, AGPS, Canberra, 1980; Graham Fricke, Judges of the High Court, Hutchinson, Melbourne, 1986; Joyce; Cowen, Isaacs; Nettie Palmer, Henry Bourne Higgins: A Memoir, Harrap & Co., London, 1931; John Rickard, H. B. Higgins: The Rebel as Judge, Allen & Unwin, Sydney, 1984; Zelman Cowen, Sir John Latham and Other Papers, OUP, Melbourne, 1965; Kylie Tennant, Evatt: Politics and Justice, Angus & Robertson, Sydney, 1970; Peter Crockett, Evatt: a Life, OUP, Melbourne, 1993; Irene Andrew, ‘The Rt. Hon. Sir Owen Dixon, O.M. G.C.M.G. 1886–1972: The Foundation Years of Australia’s Most Eminent Jurist’, unpublished paper, 1989; Ninian Stephen, Sir Owen Dixon: A Celebration, MUP, Melbourne, 1986; Michael Kirby, ‘Sir Edward Aloysius McTiernan 1892–1990: Parliamentarian and Judge’, ALJ, vol. 64, 1990, p. 320; Michael Kirby, ‘Sir Edward McTiernan: A Centenary Reflection’, Federal Law Review, vol. 20, 1991, p. 165; H. Burmester, ‘Justice Windeyer and the Constitution’, Federal Law Review, vol. 17, 1987, p. 65. There is no full-length biography of Dixon. Seven black crows: see Coper, p. 104. Michael Meehan, ‘The Good, the Bad and the Ugly: Judicial Literacy and Australian Cultural Cringe’, Adelaide Law Review, vol. 12, 1990, p. 431. See also Cowen, Isaacs, p. 39. Manning Clark, The Quest for Grace, Penguin, Ringwood, 1991; David Marr, Patrick White: A Life, Random House, Sydney, 1991; Andrew Reimer, Inside Outside: Life between Two Worlds, Angus & Robertson, Sydney, 1992. See John Hirst, ‘Australian History and European Civilisation’, Quadrant, May 1993, p. 28. Cultural cringe: A. A. Phillips, The Australian Tradition: Studies in a Colonial Culture, Longman Cheshire, Melbourne, 1980, pp. 112–117. A Century Down Town: Sydney University Law School’s First Hundred Years, eds John and Judy Mackinolty, Sydney University Law School, Sydney, 1991; The Jubilee Book of the Law School of the University of Sydney 1890–1940, ed. T. Blavin, Halstead Press, Sydney, 1940; J. M. Bennett, A History of the New South Wales Bar, LBC, Sydney, 1969, pp. 219–235; Ruth Campbell, A History of the Melbourne Law School 1857–1973, University of Melbourne, Melbourne, 1977; Arthur Dean, A Multitude of Counsellors: A History of the Bar of Victoria, Cheshire, Melbourne, 1968, ch. 19; Linda Martin, ‘From Apprenticeship to Law School: A Social History of Legal Education in Nineteenth Century New South Wales’, University of New South Wales Law Journal, vol. 9, 1986, p. 111; W. L. Morison, ‘Law and Images of History: A Reminiscence’, Sydney Law Review, vol. 11, 1986, p. 114; Alex Castles, ‘Law Schools Old and New and their Impact on Australian Law’, ALJ, vol. 64, 1990, p. 147; Castles and Harris, pp. 181–182, 338–341; Hannan, pp. 211–212; Ross Johnston, History of the Queensland Bar, Bar Association of Queensland, Brisbane, 1978, pp. 140–142;

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and see entries on William Brown and William Hearn in Bibliographical Dictionary of the Common Law, ed. A. W. B. Simpson, Butterworths, London, 1984. Complaint by NSW Attorney-General: Century Down Town, pp. 72–73. Irrelevant English land law: Castles and Harris, pp. 181–182, 340. See A. R. Blackshield, ‘The Legitimacy and Authority of Judges’, University of New South Wales Law Journal, vol. 10. 1987, p. 155. Century Down Town, pp. 78–82, 208–209. Campbell, p. 15. D. Kok, J. O’Brien and R. Teale, ‘In the Office and at the Bar: Women in the Legal Profession’, in In Pursuit of Justice: Australian Women and the Law 1788–1979, eds Judy Mackinolty and Heather Radi, Hale & Iremonger, Sydney, 1979, pp. 182–183. Privy Council view on Court of Appeal: Harold Luntz, ‘Throwing off the Chains: English Precedent and the Law of Torts in Australia’, in Emergence, p. 71. Deference to English authority: Alex Castles, An Australian Legal History, LBC, Sydney, 1982, p. 510; Alex Castles, ‘The Reception and Status of English Law in Australia’, Adelaide Law Review, vol. 2, 1963, p. 10; Coper, p. 110; J. W. Harris, ‘The Privy Council and the Common Law’, Law Quarterly Review, vol. 106, 1990, p. 582; Luntz; and see Piro v. W. Foster & Co. Ltd. (1943) 68 CLR 313; Sexton v. Horton (1926) 38 CLR 240. Privy Council and House of Lords decisions did sometimes conflict: see Castles, ‘Reception’, p. 10; Luntz, pp. 74–75. See W. R. Cornish and G. de N. Clark, Law and Society in England 1750–1950, Sweet & Maxwell, London, 1989, p. 45; William Twining and David Meirs, How to Do Things with Rules, 2nd edn, Weidenfeld & Nicolson, London, 1982, pp. 270–271. The Privy Council never felt itself to be strictly bound by precedent: A. S. Morrison, ‘The Appeal to His Majesty in Council’, JRAHS, vol. 67, 1981, p. 19. See Morton Horwitz, The Transformation of American Law, 1780–1860, Harvard University Press, Cambridge, 1977, ch. 8; R. B. Ferguson, ‘The Horwitz Thesis and Common Law Discourse in England’, Oxford Journal of Legal Studies, vol. 3, 1983, p. 34. See Alan Hunt, The Sociological Movement in Law, Macmillan, London, 1978, ch. 3; David Kairys, ‘Legal Reasoning’, in The Politics of Law: A Progressive Critique, ed. David Kairys, Pantheon, New York, 1982, ch. 1. On Stone, see Blackshield, ‘Legitimacy’; Morison. Owen Dixon, Jesting Pilate and Other Papers and Addresses, LBC, Sydney, 1965, p. 247. Blackshield, ‘Legitimacy’, p. 166; and see Dixon, p. 251. Dixon, p. 158, in the chapter headed ‘Concerning Judicial Method’. Stephen, pp. 21, 27. Homer in the alps: Andrew; Stephen, p. 7. The bicentenary essays were published in Emergence; see especially Luntz on tort, M. P. Ellinghaus, ‘Towards an Australian Contract Law’, and David Lanham, ‘Murder Most Australian’. On ideology and positivism, see Robert Martin, ‘Ideology and Judging in the Supreme Court of Canada’, Osgoode Hall Law Journal, vol. 26, 1988, pp. 817–820, 825–826. On Dixon’s decision discussed here, see Stephen, pp. 30–32; on Evatt’s, see

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Meehan, pp. 437–439, and Crockett, pp. 66–69; on Isaacs’, see Cowen, Isaacs, pp. 39, 127–128, and Luntz, pp. 71–72. The case references are: Commissioner for Railways v. Cardy (1960) 104 CLR 274; Chester v. Waverley Corporation (1939) 62 CLR 1; Wright v. Cedzich in (1930) 43 CLR 493; Bourke v. Butterfield and Lewis Ltd (1926) 38 CLR 354. On the Privy Council and constitutional law, see Blackshield, Abolition, ch. 2; Coper, pp. 104–109; Cowen, Isaacs, chs 6–7; Joyce, chs 10–11; Bennett, Keystone, pp. 27–29; Brian Galligan, Politics of the High Court: A Study of the Judicial Branch of Government in Australia, UQP, St Lucia, 1987, pp. 80–81, 96–102; and see Morrison. On legalism in constitutional interpretation, see Galligan, Politics, pp. 30–41; Burmester; David Meale, ‘The History of the Federal Idea in Australian Constitutional Jurisprudence: A Reappraisal’, AJLS, vol. 8, 1992, p. 25; Brian Galligan, ‘Legitimating Judicial Review: The Politics of Legalism’, Journal of Australian Studies, vol. 8, 1981, p. 33; Davidson, Epilogue; Hilary Charlesworth, ‘Individual Rights and the Australian High Court’, Law in Context, vol. 4, 1986, p. 52; Gageler. Case references: D’Emden v. Pedder (1904) 1 CLR 91; Deakin v. Webb (1904) 1 CLR 585; Webb v. Outrim [1907] AC 81; Railway Servants case (1906) 3 CLR 807; Baxter v. Commissioners of Taxation (1907) 4 CLR 1087; James v. Commonwealth [1936] AC 578. Quoted in Joyce, p. 270. Coper, p. 284, and see pp. 109, 283, 293–294. Bank Nationalisation case (Bank of NSW v. Commonwealth (1948) 76 CLR 1; (1949) 79 CLR 497): Galligan, Politics, pp. 169–183; Galligan, ‘Legitimating’, pp. 44–45; Cowen, Latham, pp. 36–37, 49–51; Tennant, pp. 205, 216–218, 226–230, 241–243, 245–246; Crockett, pp. 6–7; W. G. McMinn, A Constitutional History of Australia, OUP, Melbourne, 1979, pp. 186–187; Coper, pp. 157, 295–297, 300–301. David Solomon, The Political Impact of the High Court, Allen & Unwin, Sydney, 1992, p. 13. On the Communist Party case (Australian Communist Party v. Commonwealth (1951) 83 CLR 1), see Frank Cain and Frank Farrell, ‘Menzies’ War on the Communist Party, 1949–1951’, in Australia’s Cold War 1945–1953, eds Ann Curthoys and John Merritt, vol. 1, Allen & Unwin, Sydney, 1983; Galligan, Politics, pp. 203–207; Cowen, Latham, pp. 45–47; Tennant, pp. 258–269; Crockett, pp. 163–168; Coper, pp. 127, 369–371; and see generally, Laurence Maher, ‘Sounds Dreadful: Broadcasting Regulation, Communism and the Early Cold War Period in Australia’, Melbourne University Law Review, vol. 18, 1991, p. 368. See Laura Bennett, Making Labour Law in Australia: Industrial Relations, Politics and Law, LBC, Sydney, 1994, ch. 3; Solomon, ch. 8; Cowen, Isaacs, ch. 7; Joyce, pp. 272–273; Coper, pp. 91–93; Galligan, Politics, pp. 207–209; Galligan, ‘Legitimating’; ‘The Seventieth Anniversary of the Engineers Case Commemorated’, ALJ, vol. 64, 1990, p. 755; Peter Bayne, ‘Mr Justice Evatt’s Theory of Administrative Law: Adjusting State Regulation to the Liberal Theory of the Individual and the State’, Law in Context, vol. 9, 1991, p. 1. See more broadly, Blanche D’Alpuget, Mediator: A Biography of Sir Richard

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Kirby, MUP, Melbourne, 1977; Palmer; Rickard. Judicial hostility to labour law is also discussed in chapter 7. Case references: Railway Servants case (1906) 3 CLR 807; Engineers case (1920) 28 CLR 129; Boilermakers case (R. v. Kirby, ex parte Boilermakers’ Society) (1956) 94 CLR 254, (1957) 95 CLR 529. 39 See Owen Dixon, ‘The Statute of Westminster, 1931’, in Dixon, p. 82; Castles, Australian Legal History, ch. 15; K. Mack, ‘Development of an Australian Legal System’, in Emergence, pp. 324–325; R. D. Lumb, ‘The Bicentenary of Australian Constitutionalism: The Evolution of Rules of Constitutional Change’, University of Queensland Law Journal, vol. 15, 1988, p. 3; Alex Castles, ‘Reception’, pp. 29–31. 40 Lumb, p. 18; James Crawford, ‘Australian Law After Two Centuries’, Sydney Law Review, vol. 11, 1988, p. 449; Zelman Cowen, ‘The Achievement of Australian National Independence’, Law Institute Journal, vol. 62, 1988, p. 1197.

C H A PTE R 9 T H E R EBI RT H O F LEGAL DOCTRINE, 1960–1995

AUSTRALIAN

Like chapter 8, some of the issues in this chapter are discussed in essays in The Emergence of Australian Law, eds M. P. Ellinghaus, A. J. Bradbrook and A. J. Duggan, Butterworths, Sydney, 1989. 1 Case references: Parker v. R. (1963) 37 ALJR 3; Skelton v. Collins (1966) 115 CLR 94; Viro v. R. (1978) 141 CLR 88; Australian Consolidated Press v. Uren (1967) 117 CLR 221; Australian Consolidated Press v. Uren [1969] 1 AC 590; Oteri v. the Queen [1976] 1 WLR 1272. 2 On formal changes between 1963 and 1975, see Anthony Mason, ‘The Australian Constitution 1901–1988’, ALJ, vol. 62, 1988, p.752; Michael Coper, Encounters with the Australian Constitution, CCH Australia, North Ryde, 1987, pp. 109–113; David Solomon, The Political Impact of the High Court, Allen & Unwin, Sydney, 1992, ch. 9; A. R. Blackshield, The Abolition of Privy Council Appeals: Judicial Responsibility and ‘The Law for Australia’, Adelaide Law Review Association, Adelaide, 1978; J. W. Harris, ‘The Privy Council and the Common Law’, Law Quarterly Review, vol. 106, 1990, p. 574; Alex Castles, An Australian Legal History, LBC, Sydney, 1982, pp. 331–332, 511; Harold Luntz, ‘Throwing off the Chains: English Precedent and the Law of Torts in Australia’, and K. Mack, ‘Development of an Australian Legal System’, in Emergence; J. M. Bennett, Keystone of the Federal Arch: A Historical Memoir of the High Court of Australia to 1980, AGPS, Canberra, 1980, pp. 87, 95–99; A. R. Blackshield, ‘Judges and the Court System’, in Labor and the Constitution 1972–1975: Essays and Commentaries on the Constitutional Controversies of the Whitlam Years in Australian Government, ed. Gareth Evans, Heinemann, Melbourne, 1977, pp. 107–111. 3 On the Barwick and Gibbs High Courts, see David Marr, Barwick, Allen & Unwin, Sydney, 1980; Brian Galligan, Politics of the High Court: A Study of the Judicial Branch of Government in Australia, UQP, St Lucia, 1987; Brian Galligan, ‘Legitimating Judicial Review: The Politics of Legalism’, Journal of Australian Studies, vol. 8, 1981, pp. 49–53; Coper, pp. 110–113; H. Gibbs, ‘Judgment

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Writing’, ALJ, vol. 67, 1993, p. 494; H. Gibbs, ‘Law and Government’, Quadrant, vol. 34, October 1990, p. 25; H. Burmester, ‘Justice Windeyer and the Constitution’, Federal Law Review, vol. 17, 1987, p. 65; Stephen Gageler, ‘Foundations of Australian Federalism and the Role of Judicial Review’, Federal Law Review, vol. 17, 1987, p. 175; Castles, Australian Legal History, pp. 502–504; M. P. Ellinghaus, ‘Towards an Australian Contract Law’, David Lanham, ‘Murder Most Australian’, and Luntz, in Emergence; Blackshield, ‘Judges’, pp. 121–126. The sources used for common law changes in these years are Bruce Kercher and Michael Noone, Remedies, 2nd edn, LBC, Sydney, 1990, and Luntz. Case references: Dugan v. Mirror Newspapers (1979) 142 CLR 583; Griffiths v. Kerkemeyer (1977) 139 CLR 161; Caltex Oil v. Dredge ‘Willemstad’ (1976) 136 CLR 529; Candlewood Navigation v. Mitsui O.S.K. [1986] AC 1. Ellinghaus, p. 47. Galligan, Politics, p. 31. See Richard Krever, ‘Murphy on Taxation’ in Lionel Murphy: A Radical Judge, ed. Jocelynne Scutt, McCulloch Publishing, Melbourne, 1987; Solomon, ch. 7; Marr, pp. 131, 227–229, 293–294; Galligan, Politics, pp. 185, 197, 254; John Passant, ‘Tax Avoidance and the Judiciary’, Law in Context, vol. 7, 1989, p. 24; Judith Grbich, ‘Writing Histories of Revenue Law: the New Productivity Research’, Law in Context, vol. 11, 1993, p. 57. Case references: Curran v. Commissioner of Taxation (1974) 131 CLR 409; John v. Commissioner of Taxation (1989) 166 CLR 417. Krever, p. 142. Cullen v. Trappell (1980) 146 CLR 1, p. 9. ‘Swearing in of Sir Harry Gibbs as Chief Justice’, (1981) 148 CLR p. xiii. Case references: Todorovic v. Waller (1981) 150 CLR 402; Gates v. City Mutual Life Assurance Society Ltd (1986) 160 CLR 1. Ellinghaus, p. 48 (1975–1985 figures); James Crawford, ‘Australian Law after Two Centuries’, Sydney Law Review, vol. 11, 1988, p. 446. Ellinghaus shows the same kind of pattern in law text books. Murphy’s judicial life and influences: Radical Judge; Galligan, Politics, pp. 190–191, 234–236, 238; Coper, pp. 5, 104, 121, 126, 132–140, 283, 317, 320–321, 336–337, 348–354; Solomon, pp. 97, 129; Blackshield, ‘Judges’, pp. 118–120. His decisions were published with commentary in The Judgments of Justice Lionel Murphy, eds A. R. Blackshield, David Brown, Michael Coper and Richard Krever, Primavera Press, Sydney, 1986; and Lionel Murphy: The Rule of Law, eds Jean and Richard Ely, Akron Press, Sydney, 1986. Coper, p. 283; recollection of Tony Blackshield, April 1994. Case references: Attorney-General (at relation of McKinlay) v. Commonwealth (1975) 135 CLR 1; DOGS case (Attorney-General (Victoria) v. Commonwealth) (1981) 146 CLR 559; Bistricic v. Rokov (1976) 135 CLR 552. See John Goldring, ‘The Australia Act 1986 and the Formal Independence of Australia’, Public Law, 1986, p. 192; Bernard O’Brien, ‘The Australia Acts’, in Emergence; James Thomson, ‘The Australia Acts 1986: A State Constitutional Law Perspective’, Western Australian Law Review, vol. 20, 1990, p. 409; R. D. Lumb, ‘The Bicentenary of Australian Constitutionalism: The Evolution of

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Rules of Constitutional Change’, University of Queensland Law Journal, vol. 15, 1988, pp. 26–32; Solomon, pp. 120–121, 131–132. A. C. Castles and M. Harris, Lawmakers and Wayward Wigs: Government and Law in South Australia, 1836–1986, Wakefield Press, Adelaide, 1987, pp. 251–253. Michael Kirby, ‘Changes Seen, Foreseen and Unforeseen’, Legal Education Review, vol. 4, 1993, p. 301. On the Mason court, see Anthony Mason, ‘Jurisdictional and Procedural Constraints on the Evolution of Australian Law’, Sydney Law Review, vol. 10, 1984, p. 253; Anthony Mason, ‘The Role of a Constitutional Court in Federation: A Comparison of the Australian and United States Experience’, Federal Law Review, vol. 16, 1986, p. 1 (reprint of the 1985 speech); Mason, ‘Australian Constitution’; Anthony Mason, ‘Future Directions in Law’, Monash University Law Review, vol. 13, 1987, p. 149; Barrie Virtue, ‘High Court is Planning New Rules’, Australian Lawyer, vol. 28, 1993, p. 18; David Wood, ‘Adjudication and Community Values: Sir Anthony Mason’s Recommendations’, in Emergence; John Toohey, ‘A Government of Laws, and not of Men’, paper delivered to Darwin Conference on Constitutional Change in the 1990s, 1992; Angus Corbett, ‘The Future of Australian Democracy: The Political Advertising Case’, University of New South Wales Law School Bulletin, vol. 3, 1993, p. 27; Solomon, pp. 186–188. On the views of Michael Kirby, which are similar to those of Mason, see Michael Kirby, The Judges, Australian Broadcasting Commission, Sydney, 1983, chs 3, 5; and see Michael Kirby, ‘On the Writing of Judgments’, ALJ, vol. 64, 1990, 691; Sydney Morning Herald, 27 October 1993. On Cook v. Cook (1986) 162 CLR 376, see Ellinghaus, p. 48; Luntz, p. 82; Mack, pp. 331–332. Mason and Barwick: Marr, p. 239. Whitlam, Sydney Morning Herald, 15 January 1994, p. 27. Sydney Morning Herald, 16 March 1994; Australian, 17 March 1994. Solomon, p. 49. Case references: Political Advertising cases (Nationwide News v. Wills (1992) 66 ALJR 658, Australian Capital Television v. Commonwealth (1992) 66 ALJR 695); Trident General Insurance v. McNiece Bros (1988) 165 CLR 107; Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321; Hungerfords v. Walker (1990) 171 CLR 125. Sydney Morning Herald, 1 December 1992, 10 and 12 July 1993, 17 March 1994; but see editorial, 17 March 1994. Virtue, p. 23. Rob McQueen, ‘Why High Court Judges Make Poor Historians: The Corporations Act Case and Early Attempts to Establish a National System of Company Regulation in Australia’, Federal Law Review, vol. 19, 1990, pp. 245–246. Kirby, Judges, pp. 58–59; Wood; A. R. Blackshield, ‘The Legitimacy and Authority of Judges’, University of New South Wales Law Journal, vol. 10, 1987, p. 155. Alex Castles, ‘The Elusive Common Law and Section 80 of the Judiciary Act 1903 (Cth)’, ALJ, vol. 63, 1989, p. 490; Solomon, pp. 127–128. On numbers in custody, see Royal Commission into Aboriginal Deaths in Custody, National Report, AGPS, Canberra, 1993, vol. 1, and see generally M.

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Finnane, Police and Government: Histories of Policing in Australia, OUP, Melbourne, 1994, ch. 6. The main pre-Mabo source used here is H. McRae, G. Nettheim and L. Beacroft, Aboriginal Legal Issues, LBC, Sydney, 1991. On customary law, see Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No. 31, AGPS, Canberra, 1986; Richard Johnstone, ‘Aboriginal Issues in Australian Legal Scholarship: The Australian Law Reform Commission’s Report on the Recognition of Aboriginal Customary Law’, in Emergence. Case references: Napaluma v. Baker (1982) 29 SASR 192; R. v. Anunga (1976) 11 ALR 412; Coe v. Commonwealth (1979) 53 ALJR 403; Milirrpum v. Nabalco Pty Ltd (1971) 17 FLR 141. Bartlett, p. 185. Mabo v. Queensland (1988) 166 CLR 186; Mabo v. Queensland (No. 2) (1992) 175 CLR 1. There is already a large literature on Mabo, including special law journal issues: Aboriginal Law Bulletin, vol. 3, June 1993; Sydney Law Review, vol. 15, 1993; University of New South Wales Law Journal, vol. 16, No. 1, 1993. Commentaries include: Mabo: A Judicial Revolution, eds M. A. Stephenson and Suri Ratnapala, UQP, St Lucia, 1993; Garth Nettheim, ‘“The Consent of the Natives”: Mabo and Indigenous Political Rights’, Sydney Law Review, vol. 15, 1993, p. 223; M. J. Detmold, ‘Law and Difference: Reflections on Mabo’s Case’, Sydney Law Review, vol. 15, 1993, p. 159; Richard Bartlett, ‘Mabo: Another Triumph for the Common Law’, Sydney Law Review, vol. 15, 1993, p. 178; Edward Woodward, ‘Aboriginal Land Rights’, Law Institute Journal, vol. 62, 1988, p. 1213; Coper, pp. 51–53; Sydney Morning Herald, 11 April 1993, 11 May 1993, 5, 16, 20 and 23 October 1993, 8, 10–12, 22–23, 25 November 1993, 2 and 22–23 December 1993, 28 April 1994; Australian, 22 December 1993; Peter Connolly and S. E. K. Hume, The High Court of Australia in Mabo, Association of Mining and Exploration Companies Inc., Leederville, 1993; Greta Bird, The Process of Law in Australia: Intercultural Perspectives, 2nd edn, Butterworths, Sydney, 1993, ch. 5. See also Ann McGrath, ‘History and Land Rights’, Law and History in Australia, vol. 3, ed. Diane Kirkby, La Trobe University, Bundoora, 1987; Rosemary Hunter, History and Philosophy of Law: Aborigines and the Law materials, Melbourne University, 1989. Brendan Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law; English and Australian Land Law Compared after Mabo v. Queensland’, Anglo-American Law Review, 1994, vol. 23, p. 397. Blainey’s objections: Sydney Morning Herald, 10 November 1993, and see the Herald’s own reply on 12 November 1993. See Nettheim. Interaction of legal systems, see Sidney Harring, ‘The Rich Men of the Country: Canadian Law in the Land of the Copper Inuit, 1914–1930’, Ottawa Law Review, vol. 21, 1989, p. 1. See J. J. Smolicz, ‘Cultural Sharing or Cultural Suppression?’, Social Alternatives, vol. 3, 1983, p. 27; Bird, ch. 3 especially; and see generally, Australian Law Reform Commission, Multiculturalism and the Law, Report No. 57, Law Reform Commission, Sydney, 1992. See B. Kercher, ‘Homer in the Australian Alps: Attitudes to Law since 1788’, Australian Journal of Legal History, forthcoming.

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Aborigines British subjects, 4–5, 8, 12, 17 colonial law civil actions, 3–4 criminal liability, 6–15 evidence, 9, 14–17 imprisonment, 196 land rights, 6, 17–21, 197 Mabo case, 11, 195, 197–202 Myall Creek massacre, 12–17, 21, 108 native title, 197–202 paternalism, 3, 6, 17 recognition of Aboriginal law, 9–11, 18, 196–7 removal of children, 196 South Australia, 12, 18 sovereignty, 200–1 squatting, impact of, 120, 122 Tasmania, 7–8 terra nullius, xi, 4–5, 11, 18–21, 52, 198, 200 twentieth century conditions, 196 violence, 6–17, 195–6 votes, 144 administrative law, 100–1 amateur judges, 43–5, 57, 59–61, 63, 133, 151 amoval of judges, 33, 94, 96, 98–100, 184 Atkins, Richard, 47–9, 56–8 Australia Acts 1986, 186–8, 191

autocracy of colonial governors, 35–6, 48, 54, 59, 67–70, 77, 85 bank nationalisation, 173 bankruptcy, xv, 55, 57, 72, 92, 113, 116 see also debt recovery law; insolvency Barton, Edmund, 158, 162 Barwick, Garfield, 173–4, 177–82, 190 tax cases, 181–2 Batman, John, 19 Bent, Ellis, 33, 49, 56–8, 68–9, 71 Bent, Jeffery, 33, 39, 49 Bentham, Jeremy, xviii, 69 Bigge, JT, 29, 34, 36, 69 Bjelke-Petersen, Joh, 179, 202 Blackstone, William, xii Bligh, Governor, 45–8, 58 Boothby, Benjamin, 97–8, 100, 130 Brougham, Henry, xix Burton, William, 10, 14, 87–9, 94, 107, 116, 126 bushranging, 27, 103–9 Bushranging Acts, 105–8 Felons Apprehension Act 1865, 109 police, 108–9 capital offences, xiii–xv, xix, 106 Castle Hill convict rebellion, 27

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paternalism, 30, 36 promissory notes, 54 property rights, 31–2, 36–7, 41 protests by, 26–7 rebellions, 27 reform of law, 40–2 secondary transportation, 24, 26, 28–9, 34–5 Sudds and Thompson case, 35–6, 84 Tasmania, 41–2, 104 ticket of leave, 29, 32–4, 36–8, 40–1 Western Australia, 41 Cooper, Charles, 63, 95 court dress, 95 Court of Appeal, English, 166 Courts of Requests, 73, 151–2 criminal codes, 125–6 Crossley, George, 39, 57 Crown disallowance of legislation, see Royal assent Crown immunity, 101, 136 Crown leases, see land law Crown mercy, xiv–xv, 14, 29, 106 Crown sovereignty, 199 cultural cringe, 163–6 currency, 52–4 customary law, non-Aboriginal, xii–xiv, 87, 90

Chancery, see equity Chinese, see immigration law Coal River, see Newcastle codification, 125–6 Collins, David, 18–19, 22, 47, 56, 58 Colonial Laws Validity Act 1865, 98–102, 124, 160, 175, 203 see also repugnant colonial legislation; Statute of Westminster commercial law, 125, 134 common law flexibility, xii–xiii, 185 commonwealth powers, 161–2, 171–4 Communist Party abolition, 174 company law, 134–5 conciliation and arbitration, 144–7, 174–5 constitution, Australian, 157–62 amendment, 162 conventions, 157–8 interpretation, 171–4, 185, 191 popular base, 157–8, 185, 188, 191 consumer law, 183 contract law entire contracts rule, 3, 54–5 privity, 193 see also laissez faire law contributory negligence, 136, 170–1 conventions, constitutional, 157–8 conveyancing, see land law convicts abolition of transportation, 41–2 assignment, 23–4, 34, 40–1, 110–11 attaint: see convicts, felony attaint constables, 108 convict servants, 23–4, 34, 40–1, 110–11 discipline, 24–9, 34–5, 40, 107–8 emancipist lawyers, 33, 39–40, 46, 48, 60 evidence, 36, 38, 92 felony attaint, 22–3, 31–4, 36–9, 42, 50, 68 twentieth century, 180 Female Factories, 31 flogging, 25–6, 31, 34–5 imprisonment for debt, 32, 113 living conditions, 23–4, 26, 29–31, 40–1, 77 North America, 24 pardon, 27, 32, 36–7, 41

Darling, Governor, 35, 82–6, 106 date of reception of English law, 74–5, 92 death, liability for, 136–7 debt recovery law English, xv–xviii, 112–13 formality, xvii frontier law, 55–7 imprisonment for debt, xv–xvi, 55–7, 62–3, 114–16 abolition in Australia, 115–16 convicts, 32, 113 property remedies, xvi, 55 reform, 112–17 see also bankruptcy; insolvency defamation, 84 dismissal of judges, 33, 94, 96, 98–100, 184 divorce, 72, 137–41

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governors’ autocracy, 35–6, 48, 54, 59, 67–70, 77, 85

divorce (continued) double standard, 138–9, 141 English law, 137–8 see also married women’s rights Dixon, Owen, 168–9, 177 Dore, Richard, 47–8, 56–8 dower, 141–4 see also succession; testators’ family maintenance Duffy Act, 128

Hearn, William, 125, 165 Higgins, Henry, 145, 147 High Court backgrounds of judges, 162–4, 192, 194 judicial review, 158–9, 171–4 Higinbotham, George, 77, 93, 125, 137, 143, 148 Hotham, Governor, 132 House of Lords, 166–7, 169, 177–8, 180, 189

Eagar, Edward, 32, 37, 67–8 elected judges, 133 emancipist lawyers, 33, 39–40, 46, 48, 60 English law applicability in Australia, xi–xii, 4–5, 9, 11, 17–20, 71, 74 competing courts, xvii–xviii, 43 reform, xviii–xix, 101 sources of law, xii equity, xvii–xviii, 96–7 fusion with common law, 72, 96–7, 101 Eureka stockade, 131–2 see also gold rushes Evatt, HV, 150, 163, 170, 173–4 evidence Aboriginal, 9, 14–17 convict, 36, 38, 92

immigration law, 147–50, 195 language test, 149–50 Pacific islanders, 149–50 white Australia policy, 147 imprisonment for debt, see debt recovery law industrial law, see labour law insolvency, xv, 55–7, 113–14 see also bankruptcy; debt recovery law Isaacs, Isaac, 159–60, 170, 172 Jeffcott, John, 62 judicial review, 49, 68, 70, 73–4, 81–94, 97–101, 107 commonwealth constitution, under, 161–2, 171–4 juries, 67, 72–3, 75

Federal Council of Australasia, 158 fee system, xvi, xviii–xix, 73 fellow servant rule, 136–7 felony attaint, see convicts Female Factories, 31 female suffrage, 141, 144 Forbes, Francis, 24, 35, 37–8, 69, 71–2, 74, 82–6, 89–90, 107 formalism, 91, 163, 166–9, 181–2, 184, 189–92 free trade, 161–2, 173, 185 fusion of law and equity, 72, 96–7, 101

Kanakas, see immigration law Kelly, Ned, 105, 109 Kerr, John, 160, 182, 189 Kingston, Charles, 145–6 Kirby, Michael, 188, 191 labour law basic wage, 147 conciliation and arbitration, 144–7, 174–5 convict servants, 23–4, 34, 40–1, 110–11 entire contracts, 3, 54–5 equal pay, 147 master and servants, 54, 109–12 paternalism, 110, 145

Gibbs, Harry, 179, 182–4, 190 gold rushes, 131–4, 147–8 see also Eureka stockade

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laissez faire law, xiv, 89–90, 134–6, 145–6, 150, 162, 167, 194 land law, 18 Aboriginal land rights, 6, 17–21, 197 close settlement, 118–21, 129 conveyancing, 51–2, 129–31 Crown as source of titles, 119, 197, 199 Crown leases, 122, 128–9 Crown licences, 121 Mabo case, 11, 195, 197–202 native title, 197–202 pastoral leases, 122 registration, 51–2, 130 Robertson land Acts, 126–9 selector legislation, 126–9 soldier settlement, 129 Torrens system, 98, 129–31, 142 Wakefield scheme, 120 see also squatting legal education, 93, 95, 164–6, 195 legal profession, division of, 95–6 legalism, 91, 163, 166–9, 181–2, 184, 189–92 Legislative Councils establishment, 70 reforms, 79 liens on wool, stocks and crops, 117–18

master and servants, see labour law mercy, see Crown mercy migration law; see immigration law mining law, 131–4, 150–1 company law, 134 courts, 133–4 licensing, 131 mining right, 132 Moreton Bay, 34, 36, 60–1 see also Queensland multiculturalism, 195, 201 Murphy, Lionel, 163, 181, 184–6, 197 Myall Creek massacre, 12–17, 21, 108

Mabo case, 11, 195, 197–202 Maconochie, Alexander, 40 Macquarie, Governor, 37, 49, 68 magistrates’ courts, colonial, 4, 25–6, 32, 108, 110 marriage, 49–51, 92 married women’s rights common law, 49–50, 141–2 deserted wives, 139 dower, 141–4 frontier law, 50, 60 property rights legislation, 143 seduction, 170 testators’ family maintenance, 144 see also divorce; dower; testators’ family maintenance martial law, 8–9, 27, 49, 104, 131, 145 Mason, Anthony, 189–92

paramount force legislation, 99–100 federation, after, 160–1, 175 repeal of restrictions, 160–1, 175–6, 186 pardon, see convicts pastoral leases, see land law paternalism, xiii–xv, 47–8, 58 Aborigines, towards, 3, 6, 17 convicts, towards, 30, 36 labour law, 110, 145 women, towards, 144 Pedder, John, 85–6, 94 pluralism, xviii, xix, 11, 25, 43–4, 102, 151–2, 175, 193, 201 police, 108–9 Port Arthur, 40 Port Phillip District, 10, 19, 41, 61, 96 see also Victoria

native title, 197–202 see also Aborigines; land law New South Wales bushranging, 105–8 Court of Civil Jurisdiction, 45–6 Court of Criminal Jurisdiction, 57 elections, colonial, 76–8 First Charter of Justice, 45, 55–6 Governor’s Court, 59–60 military influence on colony, 46, 57–8, 72 Supreme Court 1814–1824, 57 Supreme Court, post 1824, 71–3 Newcastle, penal settlement, 26, 28–9 Norfolk Island, 28, 34–5, 38, 40–1, 60

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science of law, xviii, 91, 167–8, 175, 177, 202 secret ballots, 78 selectors, 126–9 see also land law settled colonies, law in, xi–xii, 4–5, 9, 11, 17–20, 71, 74–5, 89, 198 soldier settlement, 129 South Australia Aborigines, 12, 18 frontier law, 62–3, 113 land law, 18, 98, 129–31 legislature, establishment of, 75 squatting, 12–13, 60, 118–23, 126–9 see also land law states, powers of, 161–2, 171–4 Statute of Westminster, 175–6, 186 Stephen, James, 82 Stone, Julius, 165, 168 succession, 141–4; see also dower; testators’ family maintenance Sudds and Thompson case, 35–6, 84

precedent twentieth century, 166–8, 170–1, 177–8, 184, 189–90, 199, 203 see also legalism press laws, 84–6, 92 Privy Council, 46, 71, 74, 93, 116, 166–7 abolition of appeals to, 160, 173, 177–9, 186–8 debate over, at federation, 159 judicial attacks on, 128–9, 159, 172–3 role after federation, 159–60, 171–4 procedure, 94–5 promissory notes, 53–4 Queensland frontier law, 60–1 separation from New South Wales, 77 see also Moreton Bay racially based law, 147–50, 195 see also Aborigines; immigration law railways, 135–7 reception of English law, xi–xii, 4–5, 9, 11, 17–20, 71, 74–5, 83–4, 99 date of reception, 74–5, 92 representative legislatures, 76–80 repugnant colonial legislation, 70–1, 73–4, 82–4, 86–7, 90–1, 94, 97–100, 186 bushranging legislation, 107 debt law, 115–16 mining law, 133 squatting laws, 121–2 see also Colonial Laws Validity Act responsible government, 77, 79–80, 97–9 federal government, 158 Robertson land Acts, 126–9 Robinson, George, 7 Royal assent to legislation, 71, 77, 80–1, 86, 99–100, 124 divorce, 138–40 federation, after, 160, 175, 187 immigration, 148–9 ‘Rum rebellion’, 48–9, 58

Tasmania Aborigines, 7–8 bushranging, 104–5 change of name, xii, 42 convicts, 41–2, 104 courts before separation from New South Wales, 25, 59 elections, 76–7 frontier law, 59–60 Lieutenant-Governor’s Court, 59–60 separation from New South Wales, 69 Supreme Court, 1824, 71–3 tax cases, 181–2 terra nullius, xi, 4–5, 11, 18–21, 52, 198, 200 testators’ family maintenance, 144 Therry, Roger, 17, 35, 37, 151–2 ticket of leave, see convicts Torrens, Robert, 130 Torrens system, 98, 129–31, 142 torts, 169, 180 contributory negligence, 136, 170–1 death, liability for, 136–7 fellow servant rule, 136–7 nervous shock, 170

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torts (continued) occupiers’ liability, 169 personal injury cases, 169–70, 185–6 transportation, see convicts; Crown mercy treason, 132 tribunals, 119, 145, 151–2, 174, 193

Wakefield scheme, 120 water rights, 129 Wentworth, WC, 16–17, 67, 79, 117 Western Australia convicts, 41 delay in joining commonwealth, 157 frontier law, 61–2, 113–14 responsible government, 80 secession case, 176 white Australia policy, see immigration law Whitlam, Gough, 160, 174, 179, 182, 184, 189 Willis, John, 10–11, 96 women legal profession, in, 165–6, 195 paternalism, 144 see also divorce; Female Factories; married women’s rights

universal male suffrage, 77–8 usury law, 87–90, 117 Van Diemen’s Land, see Tasmania Victoria frontier law, 61 mining law, 131–4 separation from New South Wales, 77 see also Port Phillip District voting see Aborigines; female suffrage; secret ballots;

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