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Published online by Cambridge University Press: 04 August 2020
I acknowledge the Gadigal of the Eora Nation, the traditional owners of the land on which we gather. I pay my respects to their Elders, past, present, and emerging and especially welcome Aboriginal people here with us today.
The author is AC, QC, an Australian jurist who is the 39th and current Governor of New South Wales, Australia. This paper contains remarks she made at the Annual Course of the International Association of Law Libraries, Law Down Under: Australia's Legal Landscape. My thanks to Elizabeth Chapman (BA Hons, JD candidate, UNSW) for her research in preparing this paper.
2 Lieutenant Colonel David Collins, Chapter 1: The Arrival of the Fleet at Botany Bay in ‘An Account of the English Colony in New South Wales: From its first settlement in January 1788 to August 1801’ (1802).
3 Civilians on the First Fleet included the chaplain, Richard Johnson and his wife; Augustus Alt, surveyor-general; Andrew Miller, commissary of stores; Henry Brewer, provost-marshal, John White, surgeon-general; Dennis Considen, Thomas Arndell and William Balmain, assistant surgeons. In Tench, Captain Watkin, ‘A Narrative of the Expedition to Botany Bay’ in Fitzhardinge, LF (ed) Sydney's First Four Years (Angus and Robertson, 1961), xviiGoogle Scholar.
4 NSW State Archives and Records, Convict Indents (Digitised) Index 1788–1801, https://www.records.nsw.gov.au/archives/collections-and-research/guides-and-indexes/node/1796/browse.
5 Tench, Captain Watkin, ‘A Narrative of the Expedition to Botany Bay’ in Fitzhardinge, LF (ed) Sydney's First Four Years (Angus and Robertson, 1961), 42Google Scholar.
6 Governor Arthur Phillip, ‘Dispatches’ (January 22, 1788). The name Port Jackson came from the earlier voyage of Captain James Cook, who sailed past the heads of Sydney Harbour in 1770. Cook named the inlet after Sir George Jackson, his friend and Patron, a Lord Commissioner of the British Admiralty.
7 Nor, would it seem, did the English consider the French as aggressors. Captain Watkin Tench, writing in March 1785 in his account of the settlement referenced ‘to our good friends the French [departing] from Botany Bay in prosecution of their voyage’ in Tench, Captain Watkin, ‘A Narrative of the Expedition to Botany Bay’ in Fitzhardinge, LF (ed) Sydney's First Four Years (Angus and Robertson, 1961)Google Scholar.
8 Mabo v Queensland (No 2) (1992) 175 CLR 1.
9 See, e.g., conference presentations including: Thalia Anthony, ‘Colonial Legal Histories and Indigenous Sovereignty’; Terri Janke, ‘Protecting Indigenous Cultural Property’.
10 Tench, Captain Watkin, ‘A Narrative of the Expedition to Botany Bay’ Fitzhardinge, LF (ed) Sydney's First Four Years (Angus and Robertson, 1961), 52Google Scholar.
11 Ibid., 32.
12 Sir Ninian Stephen, ‘The Rule of Law’ (2003) 22(2) Dialogue 8. According to Sir Ninian, the rule of law is not ‘one simple ideal, but rather a group of vital principles’. Sir Ninian explains these principles to be:
First, that ‘Government should be under the law… law should apply to and be observed by Government and its agencies, those given power in the community, just as it applies to ordinary citizens’.
Second, ‘those who play their part in administering the law, judges and other lawyers alike, should be independent of and uninfluenced by Government in their respective roles, so as to ensure that the rule of law is and remains a working reality and not a mere catch phrase’.
The third and fourth principles are closely associated—here should be ‘ready access to courts’ and the law should be ‘certain, general and equal in operation’.
13 de Montisquieu, Baron, The Spirit of Laws (Thomas Nugent trans, Cosimo Classics, 2011)Google Scholar. In The Spirit of Laws Montesquieu described the three ‘sorts of power’ in every government—the executive, legislature and judiciary. Montesquieu's approach was that liberty could only be achieved under the proper administration of the law by three separate arms of government:
‘When the executive and legislative powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Where it joined… the life and liberty of the subject would be exposed to arbitrary control.
14 Captain Arthur Philip, Draught Instructions, 1787.
15 ‘Sir Victor Windeyer: A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’ (1962) University of Tasmania Law Review 635, 636.
16 Blackstone, Commentaries, Vol 1, 107.
17 See, Cooper v Stuart (1889) 14 App Cas 286.
18 Captain Arthur Phillip, Commission 2 APR 1787, in Mabo and Ors v Queensland (No 2) (1992) 175 CLR 1, 78 (Deane and Gaudron JJ). (‘Mabo’); ‘Sir Victor Windeyer: A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’ (1962) University of Tasmania Law Review 635, 636.
19 Mabo 175 CLR 1, 80 (Deane and Gaudron JJ).
20 Cooper v Stuart (1889) 14 App Cas 286.
21 (1889) 14 App Cas 286 at 291.
22 (1889) 14 App Cas 286.
23 Cooper v Stuart (1889) 14 App Cas 286, 291; See also Stoljar, J ‘Invisible Cargo: The Introduction of English Law in Australia’ in Gleeson, JT, Watson, JA and Higgins, RCA (eds) Historical Foundations of Australian Law: Vol 1 Institutions, Concepts and Personalities (The Federation Press, 2013), 194–211Google Scholar.
24 Cooper v Stuart (1889) 14 App Cas 286, 291.
25 (1889) 14 App Cas 286.
26 Mabo v Queensland (No 2) (1992) 175 CLR 1, 82 (Deane and Gaudron JJ).
27 ‘The islands of this continent were not terra nullius or “practically unoccupied” in 1788’, Deane Gaudron JJ in Mabo v Queensland (No 2) (1992) 175 CLR 1, 82–•83.
28 In the first, dated October 12, 1786, Captain Phillip was ‘[appointed] to be Governor of all towns, garrisons, castles, forts and all other fortifications or other military works which now or may be hereafter be erected upon this territory’.
29 The second commission of April 1787 commanded ‘all officers and soldiers and all others for whom concern, to obey you…’
30 Green, The Provincial Governor, Harvard Historical Series, Vol VII, in Windeyer, V ‘Responsible Government—Highlights, Sidelights and Reflections’ Journal of the Royal Australian Historical Society 42 (1956) 257Google Scholar.
31 Windeyer, Victor, ‘Responsible Government—Highlights, Sidelights and Reflections’ JRAHS 42 (1957) 257Google Scholar, in Bruce Debelle AO QC (ed) Victor Windeyer's Legacy: Legal and Military Papers (2019), 39–40. Fabrigas v Mostyn (1773) Cowp 161; Campbell v Hall (1774) Lofft 655.
32 (1775) 20 St Tr 82/ [1775] 98 ER 1021.
33 [1775] 98 ER 1021 at [150].
34 Ibid at [231].
35 Tench, Captain Watkin, ‘A Narrative of the Expedition to Botany Bay’ Fitzhardinge, LF (ed) Sydney's First Four Years (Angus and Robertson, 1961), 42–43Google Scholar.
36 27 Geo III c 2 (1787).
37 ‘The First Charter of Justice for New South Wales’, Letters Patent (2 April 1787) in JM Bennett and Alex C. Castles (eds), A Sourcebook of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries (Sydney, 1979), 19.
38 Statute 27 Geo III c 2, ‘the person to be appointed Governor… to convene from time to time as occasion may require a Court of Judicature for the trial and punishment of all such outrages and misbehaviours as if committed within this realm would be deemed and taken, according to the laws of this realm, to be treason or misprision thereof, felony or misdemeanour’.
39 ‘Sir Victor Windeyer: A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’ (1962) University of Tasmania Law Review 635, 653.
40 Mutiny Act 1797 (Imp) 37 Geo 3 c. 70.
41 Historical Records of Australia, Series IV, Vol 1, 171 (24 October 1786), in ‘Sir Victor Windeyer: A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’ (1962) University of Tasmania Law Review 635, 643–644.
42 ‘Sir Victor Windeyer: A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’ (1962) University of Tasmania Law Review 635, 644–645.
43 Ibid., 648.
44 Blackstone, Commentaries, 4, 380.
45 Tench, Captain Watkin, ‘A Narrative of the Expedition to Botany Bay’ in Fitzhardinge, LF (ed) Sydney's First Four Years (Angus and Robertson, 1961), 42Google Scholar.
46 Kercher, Bruce, An Unruly Child: A History of Law in Australia (Allen & Unwin, 1995), 24Google Scholar. Re Jane New [1828] NSWSupC 11.
47 John Grant in David Neal The Rule of Law in a Penal Colony, 61. (Peel Papers).
48 David Collins ‘An Account of the English Colony in New South Wales’ (1756–1810)—references the proceedings of the court but makes no mention of the reason for the Governor's pardon, only that it occurred.
50 Collins, David ‘Chapter 1: Arrival of the Fleet at Botany Bay’ in An Account of the English Colony in New South Wales (1756–1810) (University of Sydney, 2003)Google Scholar.
51 Those rations were, per week: 7 lbs of biscuit, 1 pound of flour; 7 pound of beef or 4 pound of pork; 3 pints of pease; and 6 ounces of butter: Collins, David ‘Chapter 1: Arrival of the Fleet at Botany Bay’ in An Account of the English Colony in New South Wales (1756–1810) (University of Sydney, 2003)Google Scholar.
52 ‘The First Charter of Justice for New South Wales’, Letters Patent (April 2, 1787) in J.M. Bennett and Alex C. Castles (eds), A Sourcebook of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries (Sydney, 1979), 19.
53 Cable v Sinclair [1788] NSWSupC 7.
54 Emerald Supplies Ltd v British Airways [2015] EWHC 2201 (Ch).
55 The newspaper story reporting the reuniting of Henry and Susannah in the Norwich Chronicle attracted the attention of Lady Cadogan, who organized a public subscription which yielded 20 pounds—enough money to buy clothes and other items for their life in NSW. FN #5, Ch 1—Bruce Kercher ‘An unruly child’ p. 4.
56 Cable v Sinclair [1788] NSWSupC 7, [9].
57 The original manuscript of the court proceedings bears only ‘x’ marks where Henry and Susannah Cable were required to sign, Cable v Sinclair [1788] NSWSupC 7, [9].
58 Alex C. Castles, An Australian Legal History (Sydney, 1982), 53.
59 These tensions are no better represented than in the Emancipists’ petition for equal representation in courts—evinced most clearly in their campaign for inclusion in jury selection. Their petition of 1819 to the King, signed by 1261 ‘Merchants, Settlers & c’ is clear evidence of this deepening tension: Historical Records of Australia, Volume I, X, 56–57.
60 David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge University Press, 1991), 85–104.
61 Bent to Bathurst, 1/7/1815, Historical Records of Australia, Volume VI, No 1, 149.
62 Bathurst to Ellis Bent, 11/12/1815, Historical Records of Australia, Volume VI, No 1, 170, [172].
63 ‘The Second Charter of Justice for New South Wales’, Letters Patent (4 February 1814) in J.M. Bennett and Alex C. Castles (eds), A Sourcebook of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries (Sydney, 1979), 31.
64 Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge University Press, 1991), 105Google Scholar.
65 4 Geo. IV c 96.
66 4 Geo. IV c 96, s 24.
67 Re Jane New [1828] NSW SupC 11.
68 Re Jane New [1828] NSW SupC 11.
69 IX Geo IV. LXII sec. 2, in Re Jane New [1828] NSW SupC 11.
70 Lord Mansfield, The King v Willis 4 Burr. 2539, quoted by Forbes CJ in Re Jane New [1828] NSW SupC 11.
71 Re Jane New [1828] NSW SupC 11 (Forbes CJ).
72 Lieutenant Colonel T C Sargent (Ret'd) ‘The British Garrison in Australia 1788–1841—the Commissariat’ Sabretache Vol XLI (June 2000), 15–23.
73 The Spanish dollar, also known as the peso or a ‘piece of eight’ gained literary notoriety in Robert Louis Stevenson's Treasure Island. You may remember Captain Flint's parrot's catch cry ‘pieces of eight, pieces of eight!’: Robert Louis Stevenson, Treasure Island (London, Cassell and Company, 1883), in Pond, Shepard, ‘The Spanish Dollar: The World's Most Famous Silver Coin’, Bulletin of the Business Historical Society 15(1) (Harvard, 1941), 12–16CrossRefGoogle Scholar.
74 Currency Act 1824 (NSW), passed September 28, 1824.
75 No XIII (July 5, 1825).
76 No XVII (August 30, 1825).
77 No XVI (August 17, 1825).
78 XXII (November 16, 1825).
79 No VII, XI, XIV.
80 No III.
81 Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge University Press, 1991), 84Google Scholar.
