The settlement of NSW and the reception of English law

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This topic deals with the early legal and political system of New South Wales and the other colonies. Main issues include:

  • The governor had absolute power in the colony - he could pretty much do anything he wanted, and was the only legislator and the highest point of appeal.
    • The governor's lawmaking abilities were curtailed by the Chief Justice, who could block legislation on grounds of repugnancy to the law of the UK.
  • The settlers were divided into two main groups:
    • Emancipists - freed convicts (and their children), or settlers who sympathised with them. They pushed for more powers including representative government and trial by jury.
    • Exclusivists - people who came as military officers or settlers. They wished to have certain institutions remain in their own hands (exclude the emancipists).
  • (Partial) Trial by jury and representative government were finally introduced with the passing of the NSW Constitution. From then on they evolved until they became proper representation/trial by jury.
  • The courts became entirely independent from the governor with the passing of the Australian Courts Act 1928 (Imp) which removed the governor from the judicial process.
  • With the enactment of the Australian Constitutions Act (No 2) 1850 (Imp), the colonies separated and VIC etc set up their own parliaments.
  • Reception of English law:
    • After the Australian Courts Act 1828 (Imp), all English law that was in force in England became in force in NSW insofar as it was applicable to the new colony.
    • This means that some principles are not received by the colony when it is at its infant stages, because they do not yet suit it. As the colony grows, those principles of English law which were unsuitable before, would gradually be introduced.[1]

This article is a topic within the subject Introducing Law & Justice.

Contents

Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 155-178 (Chapter 7).

The cruelty of criminal law

[2] Criminal law in England was very severe:

  • Death penalty extremely common – about 30% of convicts on first fleet were sentenced to death originally.
  • Death penalty applied to prisoners who had no right to have a defence counsel speak for them, or to give evidence
  • However, death penalty wasn’t carried out that often – there was usually a pardon (royal prerogative of mercy).
    • Some argued this was a conspiracy so the state looks scary but also merciful.
  • No professional police.
  • Prison officials owned offices – means inmates had to pay for services and goods such as food and bedding.
    • Serious disadvantage, because they can’t work but still have to pay for things.
  • Courts were overcrowded – judges used extreme formality and despatched cases hurriedly.

The prevailing opinion today is that most convicts who came to australia were ordinary working people, convicted of a first offence.

First fleet

[3] The first fleet was captained by Captain (and governor) Arthur Phillip, carrying 1036 people.

  • Land grants were made to men on the basis of marriage and children.
  • After expiration of sentence/pardon, a man was entitled to 30 acres of land if on his own, 50 if with wife, 10 additional per child.
  • Women not given land grants – incentive to marry.
  • Ticket of leave – a sort of parole, accompanied with conditional pardons which meant you have to stay in the colony.

The early legal system

[4] The legal system in Australia started with the First Charter of Justice 1786 which set up:

  • Court of Judicature – Criminal cases.
    • Military court – Judge-Advocate who serves as both judge and prosecutor.
    • Six officers to help.
    • Sentences of death and corporal punishment (mainly lashes).
  • Court of Civil Jurisdiction – Civil Cases.
    • Judge-Advocate and 2 others appointed by Governor.
    • Right to appeal to Governo.
    • Right to Appeal to Privy Council if more than 300 pounds.

The law of attaint (whereby a felon is 'civilly dead') has not been implemented in the colony yet. This is reflected in the Kable's case which was discussed earlier, and is expounded upon here:

  • The Kables (convicts transported to Australia) were allowed to sue one of the Captains for losing their money.
  • Henry Kable was declared a ‘labourer’ and not ‘convict’- which indicates he is not civilly dead.
  • Phillip adapted the laws to give the colony best chance of survival - to deny convicts (the vast majority of population) any form of civil rights would have made the development of the colony impossible.

The law of attaint reached the colony in 1801, which determined that convicts only sue or be sued in Magistrate’s courts.

  • In 1820, the court held that 'emancipists' (people who were freed by a pardon from the governor or a 'ticket of leave') are still attained because pardon is only effective if issued under the Great Seal (of the UK), rather than that of the Governor (for purposes of removing attaint).
  • This applied even though that prior to that judgment emancipists were allowed to sue.

The powers of the governor

[5] In the early days, the governor had pretty much absolute power in the colony – he could do pretty much anything, and was the final point of appeal, and the sole source of executive and legislative power etc.

  • However, in a parallel way to England, the powers of the Governor gradually diminished. The same arguments as were used in England to curb the power of the King were used to curb the power of the governor.
  • The Second Charter of Justice (in 1814) established the Supreme Court with civil, criminal and equitable jurisdiction.

Emancipists and exclusivists

[6] Besides the aborigines, the residents of Australia were divided in ideology to the Emancipists and exclusivists.

  • Emancipists - mainly people who came as convicts and were freed (and their children), but also some free settlers who sympathised with their aims felt abused by military dominance.
    • Wanted to extend power and be allowed to be involved in the organs of power in the colony.
    • Fought to change the colony from a penal colony to a free colony, with trial by jury and representative government.
    • Dominant figures in business because ‘gentlemen’ not involved in trade, and because they got land grants (which would have been impossible back in England).
  • Exclusivists - mostly people who came as military officers/ free settlers.
    • Wished to dominate and have certain institutions remain in their own hands.

The struggle between these groups occurred mostly in the courts (since no political forum such as parliament existed in the colony), and the arguments used were similar to the ones used during the 17th Century in England (The Rule of Law, the Magna Carta and the Bill of Rights were all used).

Trial by jury

[7] The residents of Australia had to fight to introduce trial by jury to the colony.

  • 1819 petition by landholder emancipists - they wanted to have the political power that usually came with wealth (like in England).
  • Criminal cases had a military jury - both colonists and military objected to this (military personnel did not want to be dragged into civilian's affairs).
  • 1823 New South Wales Act – empowered governors pardon to remove 'attaint' (governor's pardon the same as a 'Great Seal' pardon), instituted legislative council, right to trial by jury in civil cases, if both sides agree.
    • Trial by jury unavilable for criminal cases still.
    • Emancipists were continued to be excluded from serving on a jury until 1830.
  • 1833 – trial by jury for all criminal cases.

The governor and the evolution of an independent court

[8] In the beginning, the governor had basically absolute power. The governors were tyrants, who exercised power arbitrarily.

  • The courts were just extensions of the governors powers, and were not independent at all
  • Eventually, after the New South Wales Act, the court became more independent to the governor.
    • The Supreme Court could review the actions of the governor and most importantly, laws could only be passed in the colony if the court certified that they were not repugnant to the laws of the UK.
  • '1828 Australian Courts Act (Imp) - the governor can no longer hear appeals - appeals from the Supreme Court go directly to the Privy Council. The Courts are now separated from the governor.

Sir Francis Forbes

[9] Forbes was the first Chief Justice in NSW. He acted as a foil to governor Darling, by blocking some of his legislation and his attempts to control the press.

The governor and the fight for representation

[10] The emancipists were also fighting for representation. Originally, the governor was the legislature of the colony, although he was kept in check by the Chief Justice.

  • Indeed, many attempted laws of the governors' were invalidated by the Chief Justice or the Secretary of State in London.
  • What the colonists really wanted was a representative parliament, like the one in England.
  • Battles about power resulted in Bigge Royal Commision.
    • Led to representative government, which started out as small and not actual representation ('representatives' were few and elected by the governor rather than the people), but later grew and became more democratic with the enactment of acts such as the Australian Courts Act and the NSW Constitution (which provided for actually elected members).
  • The requirement that the Chief justice certify the laws was dropped accordingly.

At this point, the other colonies wanted to separate from NSW and be able to then set up legislatures similar to that NSW.

  • This occurred with the enactment of the Australian Constitutions Act (No 2) (Imp) in 1850.
  • The other colonies separated from NSW and were allowed to establish a form of a parliament.
  • Soon, bicameral parliaments were introduced, and states were encouraged to draft a constitution to send for approval in the UK.
  • NSW constitution was approved in 1855.

W C Wentworth

[11] William Charles Wentworth is one of the biggest names in early Australian history. Here is some basic information:

  • He was one of the richest men in the colony, and the head of the emancipists movement. He led the movements for both trial by jury and representative government.
  • He owned the first Australian newspaper, which critiqued the governor and pushed for further rights.
  • Quarreled with governor Darling often (accusing Darling of being a tyrant), and hosted a massive BBQ & party at his mansion to celebrate Darling's departure back to England.
  • He Drafted the NSW constitution.

Reception of English law

[12] With the enactment of the Australian Courts Act 1828 (Imp), all English law that was in force in England became in force in NSW insofar as it was applicable to the new colony.

  • This is known as he date of reception (28 July 1928)
  • All common law and statute law of England has been 'transported' into Australia.

Meanwhile, the doctrines of 'repugnancy' and 'paramount force' developed:

  • Repugnancy: laws passed by colonial legislatures which are deemed inconsistent or contradictory to the laws of the UK are invalid.
  • Paramount force: determines which new statutes of England will also bind the colonies.

The idea of repugnancy was already discussed earlier, and indeed caused some trouble:

  • in SA, the CJ kept striking down legislation as being repugnant due to technical or minor issues - it was impossible to legislate.
  • Whilst the SA parliament tried to petition England to get him to stop, England rather liked the repugnancy doctrine and even formalised it in s 2 of the Colonial Laws Validity Act 1865 (Imp).
    • The act did, however, empower the state legislatures to amend their own constitutions etc.

Determining which laws were received and apply today

[13] It can sometimes be difficult determining which laws were received into Australia, and which continue to apply today/are now repealed and no longer apply. This is discussed in Cooper v Stuart:

  • Some principles are not received by the colony when it is at its infant stages, because they do not yet suit it. As the colony grows and prospers, those principles of English law which were unsuitable before, would gradually be introduced.
  • The court determines whether laws were received by considering whether the laws suited the colony at the specified stage.

References

Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Cooper v Stuart (1889) 14 App Cas 286
  2. Textbook, pp. 156-7
  3. Textbook, pp. 157-8
  4. Textbook, pp. 158-61
  5. Textbook, pp. 162-3
  6. Textbook, pp. 163-4
  7. Textbook, pp. 166-7
  8. Textbook, pp. 167-9
  9. Textbook, p. 169
  10. Textbook, p. 170-1
  11. Textbook, pp. 171-2
  12. Textbook, pp. 173-5
  13. Textbook, p. 175
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