Law and Self-Government in the Australian Colonies

Timeline

Key events and periods affecting law and self-government in the Australian colonies:

• 1820s-1870s: Period of significant legal and political development.
• Reigns of George IV, William IV, and Victoria: Monarchs during this transformative era.
• Opium Wars, European Revolutions, Crimean War, American Civil War, German Empire: Global events influencing colonial dynamics.
• Great Reform Act 1832: Influenced ideas of representation and governance.
• Abolition of Slavery Act 1833: Shaped attitudes towards convict labor.
• Judicature Acts 1873-75: Reforms in the British legal system with relevance to colonial legal structures.

The Molesworth Committee and the End of Transportation

• Molesworth Committee: Investigated the system of convict transportation.
• Economic Critique: Argued that convictism was economically akin to slavery.
• Social Critique: Highlighted the 'demoralization' of societies dependent on convict labor.
• Assignment System: Objected to the lottery-like nature of the convict assignment system.
• Shifting Penal Philosophy: Deterrence as a primary philosophy of punishment was losing favor.
• Anti-Slavery Movement: Shifted attention towards convict transportation after the abolition of slavery in 1833.
• 1838: The Molesworth Report.
• 1840: British government decided to end transportation in New South Wales (NSW).
• 1842: Last convict ships arrived in Sydney.
• 1853: Last convict ship arrived in Van Diemen's Land.
• Opposition to Ending Transportation: The elite opposed ending transportation due to the loss of a cheap labor source, leading to a search for low-cost indentured labor.
• Support for Ending Transportation: The growing free and freed working class supported the decision.

Transition to New Criminal Law Policies

• Modern Criminal Justice System: Transition towards professional police forces, systematic prosecution, professional prison officers, and individual reform as goals.
• Capital Punishment: Limited to murder and treason in the United Kingdom by 1840.
• Public Hangings:
  • NSW abolished public hangings in mid-1855.
  • Last public hanging in Queen Street, Brisbane (then part of NSW) on January 5, 1855.
  • NSW hangman Alexander Green conducted over 490 public executions from 1828.
  • Hangings continued inside gaol walls.

Responsible and Representative Government

• William Charles Wentworth:
  • Born in Norfolk Island in 1790.
  • Crossed the Blue Mountains in 1813.
  • Studied at Cambridge, England, in 1814.
  • Admitted to the bar at Middle Temple in 1815.
  • Married Sarah Cox in 1816.
  • Returned to Sydney with Robert Wardell in 1824, establishing The Australian newspaper.
  • Acquired large pastoral holdings in the 1830s, becoming a leader of the 'squattocracy'.
  • Established the University of Sydney in 1854.
  • Left for England, residing there largely from 1854 until his death in 1872; his body was returned to Sydney for burial.
• Wentworth's Advocacy for Representation:
  • Argued for a House of Assembly for New South Wales.
  • Cited increased agricultural production and free settlers outnumbering convicts.
  • Advocated for emancipists' right to vote if qualified.
  • Proposed property qualifications for voting (20 acres freehold, annual leasehold of £5, or house rent of £10).
  • Emphasized the principle of no taxation without representation, criticizing the governors' authority to levy duties without the consent of representatives.
  • Estimated that £200,000 had been levied unconstitutionally.
• Sir Francis Forbes, Chief Justice of New South Wales:
  • Argued for representation in 1827, stating that the people of the colony paid taxes (nearly £60,000 a year) without proper authority or guarantee of due appropriation.
  • Believed the Governor's honor was an insufficient constitutional safeguard.
• Key Questions Regarding Representation:
  • What did Forbes mean by 'representation'?
  • What reasons did he provide for arguing that New South Wales was entitled to representation?
  • Connections to other historical arguments for representation.
  • Why Forbes, in particular, might have been influenced by those arguments.
• Australian Courts Act 1828 (UK):
  • Did it give 'representation'?
• Revisiting Module 7:
  • Wentworth's Description (1819) advocated for representative government.
• New South Wales Act 1823 (UK):
  • Disappointed local campaigners.
  • Established an appointed Legislative Council to advise the Governor.
• Australian Courts Act 1828 (UK):
  • Increased Legislative Council membership to 10-15 appointees.
  • Required the Governor to obtain the Council's consent for proposed legislation.
  • Allowed Supreme Court judges to protest laws deemed 'repugnant'.
• New South Wales Constitution Act 1842 (UK):
  • Significance of events related to 'representation' in the United Kingdom.
  • Granted representative and responsible government to New South Wales.
  • Voting for two-thirds of the Legislative Council (24 propertied men).
  • Six propertied men from Port Phillip.
  • 12 government appointees.
  • Rationale for property qualifications.
  • The Executive (Governor) became 'responsible' to Parliament.

Self-Government

• First Elections in New South Wales (1843):
  • No secret ballot.
  • Voting day was a public event, often fueled by alcohol.
  • Governor Gipps reported its success despite two deaths.
• Responsible Government in Australian Colonies After 1850:
  • Victoria separated in 1851.
  • Australian Constitutions Act 1850 (UK) required New South Wales, Van Diemen's Land, South Australian, and Victoria to draft constitutions for the Colonial Office's consideration.
  • Constitutions were approved through 1855-1856.
  • Self-governing parliaments existed in the four colonies by 1856.
  • All electors had to meet a property qualification.
• Australian Parliaments Modelled on Westminster:
  • The Governor represented the Queen.
  • Two chambers: Legislative Assembly (lower house) and Legislative Council (upper house).
  • Taxing and appropriation powers vested in Parliament.
  • The Governor needed the support of the colonial Parliament to govern.
• Bunyip Aristocracy:
  • 1853 Select Committee considered a Legislative Council with hereditary members who were significant landowners.
  • Hereditary titles for Legislative Councillors were proposed.
  • Daniel Deniehy satirized this concept as a 'bunyip aristocracy'.
• Colonial Borders:
  • 1788: New South Wales
  • 1823: Van Diemen’s Land (renamed Tasmania in 1856)
  • 1829: Swan River Colony (renamed Western Australia in 1832)
  • 1836: South Australia
  • 1851: Victoria
• Limits to Self-Government:
  • Significant autonomy granted, except in foreign policy.
  • The United Kingdom Government determined foreign policy for the entire Empire.
  • Departure from Colonial Office policy: Settlers should not control Indigenous peoples due to conflicts of interest.
  • Control over colonial laws maintained through appeals to the Privy Council.

The Last Colony: Queensland

• Queensland's Unique Path:
  • 1849-1850: Strong movement in the Moreton Bay District to resume transportation.
  • John Dunmore Lang promoted free Protestant immigration and proposed three northern colonies: Cooksland, Capricornia, and Carpentaria.
  • New South Wales Constitution Act 1855 (UK) ss 6-7 allowed the UK Government to create new colonies from districts in New South Wales.
  • 1859: Separation. Queensland created as a colony by Letters Patent.
  • Constitution Act 1867 (Qld) drafted by Sir Alfred Stephen. Electoral system allowed plurality voting by property holders.
• Supreme Court of Queensland:
  • Supreme Court of New South Wales on circuit from 1850–1856.
  • Increased workload led to Justice Samuel Milford becoming Resident Judge at Moreton Bay in 1857.
  • Justice Alfred Lutwyche replaced Milford in 1859.
• Alfred Lutwyche:
  • Born in London in 1810.
  • Educated at Oxford and Middle Temple.
  • Earned income writing for the Morning Chronicle in the 1830s.
  • Colleague of Charles Dickens.
  • Called to the Bar (Oxford Circuit) in 1840.
  • Moved to Sydney due to ill health in 1853.
  • Correspondent for Morning Chronicle.
  • Admitted to the colonial Bar in 1856.
  • Solicitor-General in the Cowper Government and leader of the Legislative Council.
  • Appointed Resident Judge, Moreton Bay in Feb 1859
  • Shocked at cut and paste of earlier conservative sections of NSW Constitution including loss of manhood suffrage.
• Lutwyche and Separation:
  • Reversal of male suffrage.
  • Anonymous newspaper campaign.
  • Queensland Government attempted to prosecute the Moreton Bay Courier for sedition.
  • Parliament attempted removal and pay reduction.
  • Sir James Cockle appointed Chief Justice.
  • Full male suffrage in 1873 (excepting Aboriginal Queenslanders, Chinese, and South Sea Islanders) through the Electoral Act 1872 (Qld), while plurality voting was still possible.

The Colonial Laws Validity Act 1865 (UK)

• Benjamin Boothby:
  • Justice of the Supreme Court of South Australia from 1853–1867.
  • Invalidated colonial laws repugnant to the laws of England, including:
    • Real Property Act 1857 (SA) (the Torrens legislation) in Auld v Murray (1864).
    • The constituting of the South Australian Parliament.
    • Local Courts Act 1861 (SA) in Dawes v Quarrel (1865).
  • Dismissed in 1867.
• Introduction of the Colonial Laws Validity Act 1865 (UK):
  • Section 3: Colonial laws not invalid merely because they are repugnant to the law of England.
  • Section 2: A colonial law is repugnant if inconsistent with United Kingdom legislation that applies to the colony.
  • Section 1: Applies to the colony by the 'express words or necessary intendment of any Act of Parliament'.
  • Section 5: A colonial law can entrench the 'constitution, powers, and procedure' of the colonial Parliament.
  • The Australia Act 1986 (Cth & UK) s 6 is relevant.

Privy Council Appeals

• Appeals to Her Majesty in Council (the Privy Council).
• The alter ego of the Judicial Committee of the House of Lords.
• Close alignment between decisions of the Privy Council and those of the House of Lords or the Supreme Court of the United Kingdom.
• Privy Council judgments are called 'advice'.
• Appeals were against decisions of colonial courts.
• Helped to protect British investment in the colonies.
• The Privy Council was a contentious issue in Australia at Federation.

Imperial Rivalries and Colonial Behavior

• Great Powers in the Indo-Pacific (c. 1900):
  • France: Tahiti, Marquesas Islands, New Caledonia, New Hebrides (shared).
  • Germany: New Guinea, German Samoa, Marshall Islands (including Nauru), Caroline Islands, Mariana Islands, Palau.
  • Great Britain: Six Australian colonies, New Zealand, Norfolk Island, Fiji, Papua, Solomon Islands, New Hebrides (shared), Pitcairn Island, Cook Islands, Tonga, Niue, Gilbert Islands, Ellice Islands, Solomon Islands, Tokelau, Line Islands (shared).
  • The Netherlands: Dutch East Indies, Dutch New Guinea.
  • Portugal: East Timor.
  • United States of America: Hawaii, The Philippines, Guam, American Samoa, Line Islands (shared).
• The New Guinea Crisis:
  • 1872: Queensland extended its border to include Thursday Island in Torres Strait under the authority of Letters Patent.
  • 1879: Queensland annexed the rest of Torres Strait via the Queensland Coast Islands Act 1879 (Qld).
  • German interest and the land boom fueled tensions.
  • 1883: Queensland attempted to annex the east of the island of New Guinea.
  • The United Kingdom immediately repudiated the Queensland annexation.
  • 1884: The United Kingdom and Germany agreed to partition the east of New Guinea.
  • 1888: The United Kingdom annexed the south-east of the island (Papua).
• The Federal Council of Australasia:
  • Sir Samuel Griffith, Premier of Queensland, proposed to the United Kingdom that its colonies in 'Australasia' (Australian colonies, New Zealand, and Fiji) form a Federal Council.
  • Aligned with Imperial interests, mirroring a Canadian campaign to federate the British Empire.
• Federal Council of Australasia Act 1885 (UK):
  • Section 15: Saving Her Majesty's prerogative, the Council had legislative authority regarding:
    • Relations of Australasia with the islands of the Pacific.
    • Prevention of the influx of criminals.
    • Fisheries in Australasian waters beyond territorial limits.
    • Service of civil process of the courts of any colony within Australasia.
    • Enforcement of judgments of courts of law of any colony beyond its limits.
  • Participation was voluntary; New South Wales and New Zealand never participated.
  • Pre-empted Australian Federation; parts of the Federal Council Act were copied into the Constitution (Cth). Professor Reid Mortensen