Legal History Notes - Reception of English Law in Australia

Terminology

• Ticket of leave: A permit allowing convicts a certain amount of freedom. Convicts with a ticket of leave were able to work for wages and live on their own, but they were restricted to a certain area and had to report regularly to the authorities.
• Commutation of sentence: The reduction of a convict's original sentence.
• Conditional pardon: Released convicts with conditions attached.
• Absolute pardon: Released convicts without conditions.
• Free by servitude/certificates of freedom: Convicts who had served their full sentence and were given certificates attesting to that fact.
• Exclusives: Free settlers.
• Emancipists: Convicts who had been freed.

Timeline

• 1760-1837: The Crown was ruled by George III, Regency, George IV, and William IV, and Victoria.
• Australia: Cook maps east coast, First Fleet/Arthur Phillip, William Bligh, Lachlan Macquarie, Thomas Brisbane, Ralph Darling, and Richard Bourke.
• The World: American Revolution, French Revolution, French-British Wars, Napoleon crowned, Trafalgar, and Waterloo/Congress of Vienna.

The Rule of Law in the 18th Century

• Recap of previous modules (4-6):
  • Responsible government
  • Rise of the Whigs
  • The US Constitution
  • Social contract
  • Individual rights
• The dark side of the rule of law included slavery, the Bloody Code, and transportation.

The Bloody Code

• Description of the 18th-century English criminal justice system.
• In 1688, there were 50 offenses punishable by death.
• By 1800, this had increased to over 220 offenses.
• Offenses largely focused on the defense of private property.
• Grand larceny was defined as the theft of goods worth more than 12 pence.

Why New South Wales?

• Transportation was the old idea of banishment or exile.
• From 1788-1868, one-third of all British convicts were transported to New South Wales, Van Diemen’s Land, and Western Australia.
• Important Legislation:
  • Transportation Act 1717 (UK)
  • Criminal Law Act 1776 (UK)
  • Transportation Acts 1784 and 1785 (UK)
  • New South Wales Courts Act 1787 (UK)
• Traditional View:
  • North America was unavailable.
  • Hulks and gaols were overcrowded.
  • New South Wales was seen as a convict dumping ground.
• Modern View:
  • Multifaceted reasons: financial, strategic, and penal reasons.
  • Naval trade.
  • Supply of flax and timber.
  • New sea routes.
  • Sealing and whaling opportunities.
• Jeremy Bentham: ‘The moon was then, as it continues to be, inaccessible: on earth there was no accessible spot more distant than New South Wales’.
• Low rate of transportation pre-1820s (<500 per annum).
• Repeal of Bloody Code laws (1830s >5000 pa).
• Sir William Molesworth’s recommendations.
• The old deterrence system was replaced.
• Systematic policing, prosecution, and imprisonment were introduced.
• The end of transportation to New South Wales occurred in 1840.
• High rate to Van Diemen’s Land until 1853.

The Economy, Political System, and Legal System in Early New South Wales

• Felony attaint: Convicts sentenced to death (even if commuted to transportation) could not:
  • Sell, purchase, or hold property.
  • Make contracts.
  • Sue.
  • Give evidence in court.
  • This was ignored in NSW (1788–1820).
  • Cable v Sinclair [1788] NSWKR 6
• Economy:
  • Reliance on convicts.
  • Army officers’ defiance of colonial office policy on land grants.
  • The significance of the Second Fleet (June 1790):
    • Six ships.
    • High mortality (26.5%).
  • The New South Wales Corps (‘The Rum Corps’).
  • Growing tensions: enriched army officers as against naval governors.
  • A highly factionalized society.
  • Governors reliant on wealthy emancipists.
• Political authority: The Governor
  • Commissions granted autocratic powers.
  • Early tensions arose between the Governor and army officers.
  • Later tensions developed between the Governor and exclusives – the change with Macquarie.
  • Support for affluent emancipists.
  • The right of emancipists to sit on juries and be appointed attorneys.
  • The appointment of emancipists as magistrates.
  • Political authority: Limits on the Governor’s power
  • The withdrawal of Governors’ commissions.
  • Successor Governor reversing past Governor’s policies.
  • Non-cooperation.
  • The use of the law courts.
  • Second Charter of Justice 1814 … and introducing the Bent brothers!
• The courts: Ellis Bent and Jeffrey Hart Bent
  • Ellis Bent, Deputy Judge Advocate of NSW
  • Jeffrey Hart Bent was appointed judge of new Supreme Court of Civil Judicature (1814)
  • JH Bent quarreled with Macquarie over:
    • Court accommodation
    • Port and turnpike regulations
    • Emancipist attorneys
  • The new Supreme Court remained closed!
  • Ellis died November 1815
  • Ellis (already dead) and JH Bent recalled April 1816
• The Bigge Inquiry:
  • Inquiry into Macquarie’s government.
  • Investigate whether transportation was a deterrent to crime
  • Appointment of Bigge
• Outcomes:
  • A drastic cut to convict freedoms.
  • Places of secondary punishment established.
  • Convict attaint reimposed.
  • Land grants to convicts terminated.
  • Macquarie loses the politics.

Reception of English Law in Australia

• New South Wales Act 1823 (UK)
  • Van Diemen’s Land separated from New South Wales.
  • An appointed Legislative Council is established.
  • Supreme Courts of New South Wales and Van Diemen’s Land are established.
  • Criminal cases tried by a jury of seven army or naval officers.
  • Civil cases heard by the Chief Justice and two magistrates, and a jury of 12 men if the parties agreed.
  • Courts of General and Quarter Sessions to hear ‘crimes and misdemeanours not punishable by death’.
  • Chief Justice had to certify that colonial laws were not repugnant to English law.
  • Appeals from the Supreme Courts of New South Wales and Van Diemen’s Land to:
    • Court of Appeal of New South Wales (i.e., the Chief Justice + the Governor).
    • Privy Council
  • Sunset clause in the Act.
• Freedom of the press
  • The Sydney Gazette
    • Australia’s first newspaper
    • Government’s mouthpiece 1803–1824
  • Brisbane’s freedom of press experiment September 1824
  • Wardell and Wentworth's Australian October 1824
  • Edward’s ’radical journal’, Monitor 1826
  • Sudds–Thompson case 1826
  • Newspaper Acts
  • Opinion [1827] NSWSupC 23 Apr–May 1827
• Freedom of the press
  • Joseph Sudds and Patrick Thompson​
  • Privates belonging to 57th (West Middlesex) Regiment stationed in New South Wales
  • Theft to be discharged ​
  • Seven years’ transportation​
  • Governor Darling intervenes
  • ​‘Commutes’ to seven years’ hard labour in chain gang​
  • Chains, iron collars, and performance of the Rogue's March​
  • Sudds’ death prompts outrage​
• The free press: the Chief Justice and the Governor
  • Darling’s attempts to restrain the press
  • Van Diemen’s Land example copied
  • Darling: Bills for licensing the press and for stamp duty
  • Forbes declares the licensing provisions declared repugnant to English law
• Australian Courts Act 1828 (UK)
  • “An Act to provide for the Administration of Justice in New South Wales and Van Diemen’s Land, and for the more effectual Government thereof, and for other Purposes relating thereto.”
  • Reception of English law
  • Reception Day: 25 July 1828: s 24
  • Subsequent United Kingdom statutes applied only if specifically passed for colony
  • Trial by jury in Supreme Court civil cases
  • Introduction of the jury in criminal matters becomes possible
  • The validity of legislation
  • The Chief Justice’s prior certification is removed
  • Any Supreme Court judge can advise the Legislative Council that he considers that parts of a colonial statute are repugnant to English law – but it is up to the Council to decide
  • A statute may be suspended until reviewed
  • Existing courts retained, but appeals to Governor abolished
  • The appointed Legislative Councils are enlarged