Foundations of the Freedom of the Press in Australia - The Inaugural Australian Press Council Address
FOUNDATIONS OF THE FREEDOM OF THE PRESS IN AUSTRALIA
THE INAUGURAL AUSTRALIAN PRESS COUNCIL ADDRESS
THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
BANCO COURT, SUPREME COURT OF NEW SOUTH WALES
SYDNEY, 20 NOVEMBER 2002
On the evening of 20 September 1826, two privates in the 57th Regiment stationed in Sydney, Joseph Sudds and Patrick Thompson, stole some calico from a shop in York Street, around the corner from their barracks situated at what is now Wynyard Square. They expected to be caught and sentenced to transportation, which appeared to them to be preferable to the rigours of military discipline. Lieutenant General Ralph Darling, Governor of New South Wales – or, as his commission described his office, Captain General and Governor in Chief – concerned with the maintenance of the discipline of his force over this and similar incidents, including a soldier’s self-mutilation with a view to discharge, determined to make an example of Sudds and Thompson. Such behaviour reinforced Darling’s opinion, also prevalent in London, that transportation to Australia had lost its deterrent effect and its role as punishment.
Darling set aside the two soldiers’ convictions and sentences by a Court of Quarter Sessions, which had ordered them to be transported to a penal settlement for seven years, and directed that they would serve on a chain gang on the public roads of the State for the entire period of their sentence and thereafter would return to their corps.
At 11.00 am on Wednesday 22 November 1826, the two prisoners were brought before the garrison assembled on the parade ground of the barracks. They were stripped naked, dressed in the yellow and grey clothes of a convict and each was then encased in a specially designed set of chains with an iron collar with spikes that prevented lying down and wrist and leg manacles, weighing some fourteen pounds in total. Thus burdened they shuffled from the parade ground with four drummers beating out the Rogues March.
Perhaps nothing more would have been heard of this affair but for one unfortunate circumstance. Sudds was critically ill, to the knowledge of his wardens but unknown to Darling. He died five days later on 27 November 1826 [1]. Darling had a public relations crisis on his hands. An incident of this character could permanently damage his career, as he well knew, and as testified by both the volume and obsequious content of his correspondence with London on the subject. One source of hostile information for his superiors in London was the strident reportage and exploitation of the incident by the then new independent newspapers of the colony.
Only three years before William Charles Wentworth and Robert Wardell, the first two barristers admitted as such by the Supreme Court of New South Wales, had commenced publication of the Australian, which joined the official Sydney Gazette. A year later the Monitor began publication under the direction of Edward Smith Hall.
Wardell was a highly competent barrister, who had been passed over for Saxe Bannister as Attorney-General. If Darling had had him as principal law officer, the history I am about to recount would probably have never happened. Wentworth, locally born, and already emerging as the leader of the emancipists, had met Wardell in London in 1819 where Wardell was already an editor, of the Statesman evening newspaper. They travelled to Australia together in 1824, accompanied by a printing press. Their approach was clearly stated in their first editorial:
“A free press is the most legitimate, and, at the same time, the most powerful weapon that can be employed to annihilate influence, frustrate the designs of tyranny, and restrain the arm of oppression [2].”
Governor Darling regarded Wentworth as “a vulgar ill-bred fellow, utterly unconscious of the common civilities, due from one Gentleman to another [3].” The very title – the Australian – proclaimed Wentworth’s political program. Edward Smith Hall at the Monitor deployed different terminology. He denounced the community which would not stand up for their rights as “a poor grovelling race … they are no longer Britons but Australians” and spoke of them “degenerating into Australians [4]”. Hall was a failed farmer, the first cashier of the Bank of New South Wales, a founder of the Benevolent Society of New South Wales and of the local branch of the British and Foreign Bible Society. He had come to Australia as a lay missionary – “an apostate missionary”, Governor Darling would call him – with a radical’s faith in the perfectibility of Man, undiminished by the experience of the French Revolution - Hall applied his evangelical zeal to everything he did or wrote, never pausing at the border between zeal and self-righteousness.
The day Sudds died, the Australian commenced its coverage with a blistering attack on the Governor, the system that permitted action of this character to occur and raised serious doubts about the legality of the Governor’s conduct. The Monitor, which had long campaigned against the brutality of the treatment of convicts [5], also took up the cause.
Plainly shaken by the course of events, and by the allegations, Darling belatedly sought legal advice, including an advisory opinion from the Supreme Court, then only two and a half years old. In a joint opinion, Sir Francis Forbes and Justice Stephen ruled against the Governor. Darling had in effect set aside a sentence and imposed a new sentence by executive fiat. This was the assumption of a judicial role. The Governor purported to act under a statutory power, but Forbes and Stephen concluded that that power permitted the Governor to interfere only by reason of conduct subsequent to the sentence of transportation taking effect [6].
The underlying basis of their opinion was the assertion of a clear separation of functions between the judiciary, which imposes sentences, and the exercise of executive authority after a sentence takes effect, pursuant to a statutory power for a specific purpose. It was the clearest possible assertion of the application of the rule of the law to the colony and of the independence of the judiciary.
The strength of Sir Francis Forbes’ convictions on the fundamental significance of these principles had already been manifest in his previous post as Chief Justice of Newfoundland where he had come into conflict with the military Governor of that colony by declaring invalid a range of regulations [7]. Forbes’ strength of character is manifest in the fact that, in neither position, did he have the protection of security of tenure available to the English judiciary since the Act of Settlement of 1701.
The media attack on Darling in the wake of the death of Sudds elevated the injustice of the incident to a symbol of the injustices perpetrated on the residents of New South Wales by reason of the absence of any form of involvement in the legislative process and the absence of trial by jury. There was provision for juries at the time, but such juries, far from being constituted by peers of an accused, were constituted by seven military officers who sat in uniform.
Until this point of time, Darling had allowed the media to develop without interference from the executive. Indeed only shortly before the Sudds Thompson incident, he had refused an application by the head of the Anglican Church, Archdeacon Thomas Scott and the leader of the exclusives, Mr John Macarthur, to direct the Attorney General to prosecute the papers for attacks upon them. Only a week before the delivery of his adverse opinion on the Governor’s powers, Sir Francis Forbes had written to his Parliamentary patron in London, praising the Governor’s restraint. He had said:
“I hold that the Governor’s own good sense had kept him right. It is at all times desirable that the weight of government should be kept out of the scales of justice. Even in England it is so. But the reason that it should is a hundred fold stronger in this Colony, where the Judge that presides holds his place during pleasure; and the jury that try, are military officers, subject in a thousand ways to the feelings and influence of the government, and consequently open to imputation, how conscientiously so ever they may decide [8].”
This harmony would quickly dissipate. Over the next few years there would emerge the most serious conflict between the judiciary and the executive that has ever occurred in Australian history. Fuelled, as it was, by the poisonous banalities of small town politics, there were nevertheless fundamental principles at stake involving the rule of law, the independence of the judiciary and the freedom of the press. Within a few years these principles were confirmed in a manner and with a force of which we remain the beneficiaries to this day.
In England the political use of actions for libel, particularly for seditious libel and criminal libel, which had been expanded by the judiciary over the course of the 18th century, was decisively wound back by the enactment of Fox’s Libel Act of 1792 which restored the general issue to the jury [9]. In New South Wales, however, the peculiar composition of the jury was such as to encourage politically motivated libel actions to proceed. Within a few years there would be a steady stream of such proceedings.
In October of the previous year an action for libel by Attorney-General Saxe Bannister, whom Forbes thought to be intermittently mad, was dismissed by a jury after a scathing summing-up by Forbes. His Honour set out a penetrating analysis of an article in the Sydney Gazette which had, if anything, attempted to praise rather than to criticise the hapless Attorney. In the course of his directions to the jury Forbes said:
“It is, however the right of the public to discuss the acts of a public officer, provided it be conducted within the legitimate bounds of fair discussion, but if, on the contrary, it degenerates so as to impute bad motives and wicked conduct, it is then no longer fair, it is libellous [10].”
It is unlikely that Darling, who eventually forced Bannister to resign, would have regarded this libel case as much of a precedent. He was concerned to ensure control of the press through direct means, rather than through the haphazard process of judicial proceedings. Governor Darling was prone to military simplicity – “a perfect martinet in military discipline” was how the senior official in the Colonial Office described him [11]. Darling regarded any opposition as insubordination. His many achievements, particularly in administrative reform [12], have been overshadowed by the controversies in which his intolerance of criticism allowed him to become embroiled.
When Robert Wardell wrote an article in the Australian critical of Colonel Henry Dumaresq, the brother of Governor Darling’s wife and his personal assistant, Dumaresq challenged Wardell to a duel. They met in a field at Homebush, each fired three shots at the other, all of which missed. Wardell’s second, William Charles Wentworth, convinced him to apologise. Honour being satisfied, the parties rode back to Sydney for breakfast. At that time, duelling was the primary form of alternative dispute resolution but, as the incident at Homebush established, it could not be relied upon as a means of controlling the press.
Darling proposed legislation which would establish a licence system for newspapers, provide for the forfeiture of a licence upon conviction for any blasphemous or seditious libel and confer on the Governor an unconfined discretion to revoke a licence. A second Bill would impose a stamp duty on newspaper sales.
Under the New South Wales Act, the Colony’s first Constitution, which created both the Supreme Court and the first rudimentary, non-representative Legislative Council, legislation by the Council required a certificate from the Chief Justice to the effect that the legislation was not repugnant to and was consistent with the laws of England.
Unlike the British Parliament, the local Legislative Council was a subordinate assembly of limited and defined powers, subject to supervision by the courts at Westminster, the whole of the jurisdiction of which had been invested in the Supreme Court. The certificate was, in substance, an abbreviated mechanism for exercising such supervision. The test was, however, a flexible one. ‘Consistency’ was required only “insofar as the circumstances of the colony permit”. That was a matter on which reasonable minds could differ.
When Darling had raised the possibility of legislation to regulate newspapers, Forbes warned him that he may not be able to provide the requisite certificate. His approach to what “the circumstances of the colony” permitted, differed profoundly from Darling’s.
To a conservative military man like Darling, let alone to his troglodyte advisers like Dumaresq and the self-interested stance of the exclusives like Macarthur, Forbes had marked himself out as a man with dangerously liberal ideas, a supporter of convicts and emancipists. He had been born in Bermuda, but it was known that he had visited the United States of America. Forbes’ conflict with the Governor of Newfoundland would have been regarded by Darling as a form of disobedience. This created suspicion that he was a man with, what was then called “republican” sentiments – the term “republican” was, at the time, deployed with both the accuracy and the abusive content that applied in comparatively recent times to the appellation “bolshevik”. Traditional “republicans” were known for their hostility to the indulgences, including the sumptuary indulgences, of a monarchy.
In a letter to his British patron Forbes said:
“Is it because the simplicity of my life and the economy of my habits are at variance with the pride, the pomp and circumstance of my neighbours, that I must be assumed to be an enemy to the substance of monarchy, because I do not ape its shadow. My dear sir, I yield to no man living in my reverence for the British form of government. My opinion is founded on reason – it is not the blind idolatry of ignorance or the hypocrisy of ignorance. I have read and reflected enough to know that the government best suited to any people is that which has gradually grown amongst them …[13]”
Forbes displayed all these dangerous tendencies in his first few years in the Colony. He refused to permit the adoption of the practice, then still current in England, by which the judges kept the filing fees for themselves. This would be known today as privatisation. Australian judicial posts would never develop into valuable rights of property. The system was strongly supported by Adam Smith [14]. To the consternation of the barristers, whose knowledge of technical procedure was a competitive advantage, Forbes permitted proceedings to be instituted in the Court with the minimum of formality, in much the same manner as has reasserted itself in recent years [15]. It was after his departure, that the bar had his successor insist upon the full paraphernalia of technical pleading on the English model. Perhaps even more dramatically, Forbes – as his formal portrait which hangs in this Banco Court displays – at first abjured the wearing of wigs.
A year after their duel, Wardell and Dumaresq ganged up on Forbes at a dinner party on the subject of wigs which led Forbes to make some sarcastic remarks for which he was admonished from London by his Parliamentary patron. Forbes wrote back:
“Your gentle admonishments, conveyed under the parable of the gown and the wig were taken just as they were intended. The first I had always worn, not more from the propriety of the costume, than from my liking for it – Republican as my taste may be supposed, it was but in keeping that I should entertain a liking for the exterior of the Roman citizens: and the second, I immediately assumed on the reading of your letter. But who could have informed you of the only occasion on which I remembered to have laughed at this venerable appendage of the tribunal, I am at a loss to conjecture.”
(Forbes referred to the dinner party with Dumaresq and Wardell)
“I will affirm that upon no other occasion can I charge my memory with the sin of having slandered wigs – on the contrary, I have always supported the propriety of using them in cold countries – and the reason I’ve always assigned for not using them … is the fact of their being intolerable in the hot months of the year. On many occasions I’ve been compelled to take off even the little band from my neck – you have never sat in a crowded court with the thermometer at one hundred. However, I have given the best possible refutation to one part of the charge against me, by putting on a wig – and it will be a great consolation, when I find my brains boiling under it in summer, to know that I am performing my duty and silencing a great scandal [16].”
Despite his doubts about Forbes’ philosophical predisposition and his prior knowledge of Forbes’ likely response to the validity of the press licensing bill, Darling would have been fortified by the fact that legislation of the precise character which he now proposed for New South Wales had recently been enacted in Tasmania. The wishes of Governor Arthur for such restraint on the media had been approved by a certificate issued by Chief Justice Pedder of the Supreme Court of Tasmania.
Forbes and Pedder had already established a similar divergence of approach in the first constitutional cases in Australian legal history. In 1824, the issue arose whether the Courts of Quarter Sessions were obliged to sit with juries for the trial of free settlers. In R v Magistrates of Sydney Forbes CJ concluded:
“It would not merely be against the express language of Magna Charta to try free British subjects without the common right of a jury, but against the whole Law and Constitution of England [17].”
Pedder CJ had come to the opposite conclusion in R v Magistrates of Hobart Town [18].
Pedder was young, a less experienced lawyer than Forbes, inclined to sycophancy and by no means made of the same strength of character [19]. That the lake named after him has been flooded beyond recognition is not entirely inappropriate.
Forbes refused to certify the crucial provisions of the Bill. He emphasised that a colonial legislature was not a sovereign Parliament but a subordinate body with authority that had been legislatively defined. The provision of the New South Wales Act which required certification by the Chief Justice itself manifested an intention to preserve the uniformity in the laws of the British Empire. He rejected the prior restraint of a licensing system for newspapers. He said:
“By the laws of England, the right of printing and publishing belongs of common right to all His Majesty’s subjects, and may be freely exercised like any other lawful trade or occupation. So far as it becomes an instrument of communicating intelligence and expressing opinion, it is considered a constitutional right, and is now too well established to admit of question that it is one of the privileges of a British subject. … To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and to make him the arbitrary and infallible judge of all controverted points in learning, religion and government … It is clear that the freedom of the press is a constitutional right of the subject, and that this freedom essentially consists in an entire exemption from previous restraints; … By the laws of England, then, every free man has a right of using the common trade of printing and publishing a newspaper; 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, which liberty consists in exemption from previous restraint; by the proposed Bill, a preliminary license is required, which is to destroy the freedom of the press and to place it at the discretion of the government [20].”
Sir Francis Forbes went on to reject the provision for a power to revoke a licence, on the basis that it empowered the Governor to revoke a licence without giving a hearing and, indeed, to do so in circumstances where he would be a judge in his own cause.
Forbes defended the position he took in a letter to his Parliamentary patron in London:
“An English judge cannot be too careful of his reputation for independence. If he loses that, he loses his necessary influence over the public opinion and, on state occasions, he becomes useless to the state [21].”
In this Newspaper Acts Opinion, as in his judgments, it is noticeable that Chief Justice Forbes felt quite comfortable with a discourse employing the terminology of “rights”. He referred more than once in this opinion to Sir William Blackstone’s classic text which had proven so influential, only a few decades before, with the American colonists. Book I of Blackstone’s Commentaries is entitled “Of the Rights of Persons” and Chapter 1 is entitled “Of the Absolute Rights of Individuals”. For over a century and a half English jurisprudence had been quite comfortable with the language of “rights”, usually referred to in the case of colonial discussion, in Australia no less than hitherto in America, as “the rights of Englishmen” [22]. It is worth recalling the title of Jeremy Bentham’s 1803 tirade against the legality of the powers exercised by the early Governors of New South Wales: it was A Plea for the Constitution. Shewing the Enormities Committed, to the Oppression of British Subjects, innocent as well as guilty; in breach of Magna Charta, the Petition of Right, the Habeas Corpus Act and the Bill of Rights. As Likewise of the Several Transportation Acts, in and by the Design, Foundation and Government of the Penal Colony of New South Wales. We don’t get titles like that anymore.
Over the course of the 19th century common lawyers stopped using the language of rights, to the extent that the discourse has only been revived in common law countries in recent times by means of the adoption of international instruments, the provisions of which can be traced back, historically, to 17th and 18th century British texts.
To a narrow-minded military man like Darling, talk of rights was poppycock. Forbes’ rejection of his plans created a decisive and irreparable conflict between the two men.
The second piece of legislation which Darling proposed was the imposition of a stamp duty. This had an extant English precedent, in contrast with the system of licensing newspapers that had been terminated in England, in large measure by inadvertence, in 1695 [23]. The stamp bill was in a different category and, at first, Forbes indicated an intention to issue a certificate. There is some controversy as to the form in which the Act was originally presented to Forbes. The printed form did not contain the precise quantum, but it was claimed that the amount of 4d had been inserted in pencil on the text which Forbes had approved. Whether that be so or not, it is almost inconceivable that Forbes did not know the amount that Darling had in mind.
Forbes took a month to state that the Act, which had been proclaimed, did not have a valid certificate. The delay itself is suggestive of a change of mind. Forbes had gathered information about the likely effect of a duty of this size on the existing newspapers. The proprietors suggested, understandably, that it would drive them out of business. The New South Wales Act provided that the purpose for the imposition of a tax had to be distinctly stated in the law. In his letter of explanation to Darling, Forbes noted that the Bill purported to state its purpose as being the creation of a fund for printing public instruments but that a fund created by a levy of 4d on each newspaper would be so “extravagantly disproportionate to the objects proposed by the Act that it were absurd to suppose the duty was imposed merely for such purposes” [24]. Forbes concluded:
“Bringing the 4d Stamp Bill to the test of the law, and looking at the broad facts before me, how was it possible to shut out the conclusion that the Bill had other objects in view, than such as were openly expressed, and in its consequences must work the ruin of those persons, whom it professed merely to tax? And how can this be reconciled either with the general principles of English Law or the provisions of the New South Wales Act [25].”
In short, Forbes had concluded, after consideration of facts made available to him privately, that the quantum of the duty indicated that the Bill had probably been proposed for an improper purpose. Darling disputed these assertions of fact [26], but there were no proceedings in which he could be given a hearing or the matters resolved after full consideration. There was no judgment. Nor, indeed, was there a formal refusal of a certificate. Forbes took the position that he hadn’t been asked to certify the Bill in its final form. The published Act had not been certified and was, accordingly, not law. The matter ended in a standoff, with Darling failing to proceed with the proposal. Forbes believed that Darling’s failure was due to his realisation that, if he did so, his improper and therefore illegal purpose, would become obvious [27].
Writing to his patron in England, Forbes indicated that the licensing Bill, which he had refused to certify, was intended to silence the opposition newspapers. He characterised the stamp duty Bill as a measure “to effect the same end by secret and disguised means” [28].
Forbes was correct that the true objective of the legislation was an attempt to destroy an independent press. This would have been the result of the licensing system or, failing that, of the imposition of a prohibitive tax. The intervention of Sir Francis Forbes ensured that this did not occur.
The conflict between the Chief Justice and the Governor descended to pettiness. In March 1827, when Forbes invited a group to attend at his house, for dinner with the recently arrived third judge of the Court, James Dowling, Governor Darling called a dinner for the same evening, issuing invitations to many of the same guests and expressly indicating that his invitation should take precedence [29].
Dowling would, in due course serve as the second Chief Justice of the Supreme Court. He was of an altogether different disposition to Forbes. Upon his arrival on a hot February Sydney day, Dowling disembarked to an eleven gun salute and was greeted by a gowned but wigless Chief Justice. Dowling got off the boat both robed and wigged and remained so throughout the day. He confided to his diary that he did not find the experience a pleasurable one and regretted his decision to accept the appointment. He did not refer to the temperature, but his private comments about Forbes were revealing:
“He seemed very unhappy, and had a round head, republican look which was anything but encouraging to a person of my temperament [30].”
To accuse a servant of the Crown of having, with the innuendo of being, a “round head” was suggestive of the regicides of the English Revolution, referring to the short cut hair of the puritans in contrast with the long ringlets fashionable at the Court of Charles I. “A round head republican” was, as I have noted above, roughly equivalent to “commie bastard”. The difference in philosophy between Forbes and Dowling would soon be reflected in the judgments of the Court. Dowling, the son of a press reporter, who had himself reported on Parliament before being called to the bar in London, would not prove to be as sympathetic to the press as Forbes.
With the primary provisions of his legislative attack in tatters, Darling turned to the use of prosecution for libel as a means of controlling the press. Indeed, Forbes had used the absence of such proceedings as a ground for rejecting the licensing Bill. Such a course was reinforced by that part of the legislation which Forbes had accepted would not be repugnant to the laws of England and for which, accordingly, he issued a certificate. The new Act required any newspaper to identify its ownership. Further, it conferred on the Court a discretion to order banishment after a second conviction for seditious or blasphemous libel.
In the absence of a Legislative Assembly, the courts had emerged as the pre-eminent forum for political conflict. The first prosecution for seditious libel was taken against Wardell for an article in the Australian containing a defamatory attack on the Chairman of the Court of Quarter Sessions about the way he had conducted a trial concerning goods stolen from Government House. Forbes had to rebuff overtures from both the Colonial Secretary and the Governor, who each sought to privately make suggestions about how this case should be listed for hearing [31]. The notorious incompetence of the Crown Law officers led to the proceedings being dismissed on technical grounds [32].
A few months later, in September 1827, Wardell was back before the Court on a charge of seditious libel of the Governor himself. He had published in the Australian a detailed criticism of a particular aspect of government policy. The issue for the trial was whether or not he had crossed the bounds of permissible public debate and attributed improper motives or conduct to the Governor. The case ended in a hung jury, even though the jury consisted entirely of military officers sitting in judgment on criticism of their commanding officer. A third prosecution of Wardell for the publication in the Australian of a letter critical of the Governor occurred in December. This also resulted in a hung jury.
When called upon by the Governor to explain these unexpected results, the Crown Law officers complained about the licence that the Court had given to Wardell, who conducted his own defence, to attack the government for its motive in instituting each prosecution and, generally, about the width of the address that was permitted. Secondly, the officers blamed the favourable directions given by Forbes in his summing-up to the two juries [33].
Forbes had emphasised that it was perfectly permissible for a public writer to debate public issues, but there were boundaries beyond which the writer could not go. He picked up a particular submission made by Wardell to the jury of military officers, and instructed them to determine the matter as if they were a jury of peers sitting in England, rather than to approach the matters as if they were sitting in an ex-officio capacity. To the particular ire of the Crown Law officers, Wardell’s argument was given the force of authority from the Chief Justice [34]. Forbes said in the first trial:
“An argument has been addressed on the peculiarity of the situation you are placed in. Give such a verdict as a jury of your country would do under similar circumstances.”
The difficulty of the jurors’ position was manifest in Governor Darling’s report to London, in which he stated that he was well aware that in both cases there was a majority in favour of conviction: in one case a five to two majority [35]. Bearing in mind that the Governor was the commanding officer of each of the jurors, the fact that no convictions were recorded is extraordinary.
There seems little doubt that the force of Forbes’ summing-up had a significant effect. Darling told London that at least one of the jurors had told him that Forbes’ summing-up had made it impossible to convict [36] and that he couldn’t see any point in continuing with prosecutions of this character [37]. There were no such proceedings during 1828.
At the conclusion of the two trials, Chief Justice Forbes and Justice Stephen wrote a joint letter to Darling on 31 December 1827 stating:
“We do not think that the cases selected for prosecution in this Colony would have been deemed of sufficient importance to have demanded State prosecution in England [38].”
The judges went on to criticise the semi-official Sydney Gazette, suggesting that its biased reporting of the trials constituted an improper attempt to put pressure on the Court, particularly the jury. Referring to the Gazette as a “Government paper”, their Honours suggested that once the Attorney had instituted the proceedings such a publication should have refrained from publishing material which might prejudice the case. There seems little doubt that the Sydney Gazette was seeking to put pressure on the military officers of the jury.
Forbes and Stephen balanced this letter with criticism of the press. In a case in which Wardell and Wentworth were seeking to take proceedings for criminal libel against the Colonial Secretary for certain official publications in the Sydney Gazette, Forbes and Stephen publicly stated, the day before the letter to Darling:
“We avail ourselves of the first opportunity which has been afforded us, of expressing our entire disapprobation of the style and manner of discussing public measures in this Colony. It is impossible to say that the press has not transgressed the bounds of fair and temperate discussion – and an intemperate process is no less opposed to the moral laws under which we live, than it is to the good sense, the good taste, and the sober feelings of society … In these observations we desire to be understood not to allude to any particular publication, or to any individual person. We condemn what we consider to have been a general practice, in the same manner as it is condemned and forbidden by our laws, and we would earnestly recommend all those persons in whose hands the press of the Colony is placed, to be more guarded in the uses which they make of it – they are, to a certain degree, entrusted with the springs of public opinion – they hold a powerful influence over the peace and goodwill of society – it is their moral duty, no less than their legal obligation, to conduct their discussions with fairness, temper and moderation. The law protects them within these limits; beyond them they become criminals in the eye of the law and disturbers of the public peace.”
Forbes was increasingly disturbed by the tone and content of the press which he described, in the argot of the era, as “licentious” [39]. However, it is clear that he had a strong belief in the role of vigorous public debate. Further experience with the local press would lead him to emphasise, to a greater degree than he did at first, the necessity for restraint by the press in the special circumstances of the colony. Nevertheless, at first, and to substantial degree throughout, he was a champion of freedom of the press.
I would not wish to create the impression that Forbes partook in anything like first amendment jurisprudence. Writing extra-judicially he said:
“… A free press is not quite fitted to a servile population; it is excellent, indispensable in a free state because of its tendency to counteract that eternal propensity of our social natures to make slaves or dupes of one another, but for that reason perhaps, it is not suited to a state of society, where one half of the community are worked in chains by the other; the direct tendency of the press is, in short, to equalise mankind; and the direct policy of our little state is only an enlarged prison discipline; the first is to set all free; the last to hold one half in servitude … An unrestrained press is not politic or perhaps safe in a land where one half of the people are convicts, who have been free men; yet I must not leave out of the account that the other half of the people are free, and that, as an abstract right, they are consequently entitled, as of birthright, to the laws and institutes of the parent state. It is a mixed question, and requires to be carefully examined; if you take away the freedom of public opinion upon matters of government, you take away a legal right; necessity you will say justifies it; then the limit of that justification is the necessity which compels it; it should go no further [40].”
One of the provisions of Darling’s newspaper legislation which Forbes had approved was a requirement that a copy of any newspaper be delivered to the Colonial Secretary on the day of publication. Edward Hall had changed the Monitor into a new form consisting of a number of pages stitched together and retitled The Monitor Magazine. In proceedings to recover a penalty for his failure to deliver a newspaper, the Supreme Court held, by the application of the principle that penal enactments must be strictly construed, that the Act did not apply to magazines and the publication was not, in fact, a newspaper [41].
Darling had no doubt as to the source of his embarrassment. On 1 September 1828 he wrote to the Colonial Office, in one of his many dispatches urging the removal of Forbes, and said:
“I’ve been abused and calumniated since the close of the Year 1826 by the Newspapers, and I have shewn beyond all doubt that Mr Forbes and his associates ministered to this Abuse and these Calumnies …”
Darling’s letters to London had become a campaign against Forbes’ influence and his alleged proclivity to give a legal character to virtually any issue. This made the Chief Justice, according to Darling, “in effect the ruling Authority” [42]. Debates about Bills of Rights, were always thus.
In August 1828, the Secretary of State for the Colonies sent a detailed, scathing dispatch to Darling, with a copy to Forbes, criticising the conduct of both over a series of disputes – Darling coming off significantly the worse. He threatened to recall all the judges and the Governor if the confrontation did not cease [43]. A greater degree of circumspection became evident in Forbes’ conduct and correspondence thereafter. The absence of security of tenure must have had its effects.
The next phase of confrontation between the executive and the press began in church. Archdeacon Scott, head of the Anglican Church, formerly secretary to Commissioner Bigge, and, somewhat ironically, given his proclivity to give sermons about drink and the later traditions of the church in Sydney, a former wine merchant [44], was a Government House insider, and, from the time of his visit with Bigge, a friend of John Macarthur.
Hall, the editor of the Monitor was, at least on the surface, a religious man. He had come to Australia as a freelance lay missionary with a distinct evangelical bent. Hall rented a pew at St James Church for himself and his six daughters. Probably with the concurrence of Governor Darling, but in any event knowing precisely what the Governor’s wishes would be, Archdeacon Scott decided that Hall’s pew was far too close to the Governor for the latter’s comfort [45].
At first the Archdeacon simply locked the pew. When Hall and his six daughters attended for Evensong, they climbed over the barrier and sat down. Next time the pew had been boarded up and was guarded by constables with staves. Hall and his daughters squatted on the step outside the altar rails, to the inconvenience, Scott would complain, of the children who were permitted to sit there.
Taking up his pen, and dipping it in his usual vitriol, Hall wrote a Monitor editorial on 5 July 1828, attacking Scott. He proclaimed: “This is the age of cant – cant political and cant religious. Thus we have Ministers of Jesus Christ thrusting their parishioners out of their pews, and then administering the sacrament [46]”.
In subsequent civil litigation Hall would, eventually, be vindicated. The first action in trespass instituted against Hall by the Crown was successful, because Hall had chosen to defend the case on the basis that he had an exclusive right to the pew, whereas the evidence established that it was shared. Hall’s request for a new trial was refused, but Chief Justice Forbes made it clear that some form of notice had been required before the termination of Hall’s rights. Nominal damages of one shilling were awarded to the Crown, which had claimed 100 pounds. Subsequently, Justice Dowling applied Forbes’ approach to the matter, when Hall proceeded against the Archdeacon for trespass, and was awarded damages in the amount of twenty-five pounds, plus costs of one hundred and forty-nine pounds one shilling and eleven pence [47].
Hall’s attack on the Archdeacon in the Monitor extended to Scott’s attitude to religion, his involvement in politics, his bias against emancipists and the allegation that the Archdeacon “was not a man of peace”. He also attacked the appropriateness of an established church with its “ancient ecclesiastical pomp and authority”. However, he still wanted his pew back.
Ex-officio proceedings for criminal libel were taken and heard by Judge Dowling and a military jury. Hall conducted his own, spirited defence, relying in part on the fact that the Archdeacon was a public figure on a government salary. Anticipating New York Times v Sullivan he told the jury:
“A public officer was public property; and he must submit his public actions to the test of public criticism.”
And:
“A public officer must expect to pay a tax for the public good. When a man accepts a public place, he ought to calculate that he will be subject to public animadversion and should act with magnanimity [48].”
Later, Hall would complain bitterly about judicial bias in the summing-up [49]. Dowling’s approach was different to Forbes’. There is little doubt that the summing-up was not as favourable as Forbes would probably have given. Specifically, there was no indication to the jury from the bench that they should set aside their military status and act as if they were jurors in England, although Dowling would give such a direction in subsequent cases.
The tone of Dowling’s summing-up was clearly in favour of conviction:
“This is an information for a libel upon the character of a gentleman filling the sacred office of a clergyman – a gentleman sustaining the highest church dignity in this remote settlement. Gentlemen, whether the public or private character of a minister of a religion, of whatever denomination he is, be considered, I know of no sort of libel so reprehensible as that which tends to lower him in the estimation of mankind. As it affects his public vocation, it is highly injurious to society, by tending to bring scandal upon religion itself and thereby to dissolve the sacred bonds which bind man to man but above all, as a paramount consideration, to weaken man’s confidence in the divine attributes of his Maker.”
His Honour went on:
“In this case a dignitary of the Church of England – the very Head of the Establishment in this distant settlement – is compelled to come into a Court of Justice, to seek redress for the publication of a scandalous libel of and concerning him in his sacred office.”
He went further:
“Gentlemen, whatever advantages may have been derived, and are daily derived to Society from the just liberties of the public press I believe there is no well-constituted mind can view with complacency, any use of the privilege of the Press, when carried to licentiousness. It is the proper and constitutional province of Courts and Juries to curb licentiousness of this powerful organ of public communication and discussion … It is not part of the liberty of the Press, to libel the constituted authorities of Government, to blacken the reputation, and wound the spirits of private individuals, and pour forth columns of matter as offensive to good taste and good feeling, as opposed to the real welfare of this promising settlement. An honest, public-spirited writer is allowed a sufficient latitude without fear of incurring the animadversion of the law. Candid and temperate discussion upon public affairs, fall properly within the just bounds of the Free Press.”
Dowling J then turned to the submissions made about public figures and instructed the jury:
“It has often been said, and has been said this day, that the characters and conduct of public men are public property. Be it so, but let public men be fairly and candidly dealt with. Let them be shielded from the shafts of malice, and protected against the venom of personal vituperation. The editor of a public newspaper has fearful odds on his side against the victim whom he may have singled out for castigation. He asserts an authority that does not belong to him, and acquires an advantage over his neighbour, as foreign from impartial injustice as it is inimical to the public peace and well being of society. The mischief of a libel does not always consist in its grossness; on the contrary, when its bitterness is muffled in the garb of innuendo and latent allusion the malicious purpose is more galling for feelings to the wounded party. Gross and vulgar abuse, carries with it its own antidote. Not so where the venom is wrapped up in obscure suggestion and dropping hints, unperceived perhaps by the common reader, but no less intelligible to him at whom the poisonous shaft is levelled.”
Setting aside the high blown rhetoric of the age, the issues raised are with us still. In Dowling’s direction there was one very pointed barb. The reference to “personal vituperation” emphasised for the jury that Hall was reporting on his own personal affairs. To the military jury, Hall’s assertion that he was performing some kind of public duty must have appeared to be cant. Hall was convicted.
When he came to be sentenced for the offence, Scott asked the court to be merciful. Dowling took the occasion to observe that the press of the colony had been guilty of excesses against which no action had been taken. He expressed in the name of “the Court” a “deep sense of pain and regret that so valuable an organ of public welfare should have been abused” and expressed concern that the attacks would be taken seriously in London, with adverse consequences on the possibility of reform of colonial governments, which he described as “the fruition of many advantages which Her Majesty’s subjects possess in every region where a British language is spoken and British law is administered” and which his local audience would have understood to refer at least to trial by jury, and probably to a reformed Legislative Council [50].
The hints that the law of libel could be effective, that Darling had received in private from Forbes and in public from Dowling, were taken up in 1829 when the Sudds Thompson affair was suddenly revived. The semi-official Sydney Gazette published documents with the assertion that they cleared Darling, who had emerged “like gold purified in a furnace [51]”. This infuriated the Australian and the Monitor. The new owner of the Australian, Attwell Hayes, editorialised [52]:
“… We can never believe and affirm that the author and ostensible executor of Sudd’s punishment, and which terminated in his death, is a fit person to rule over a British Colony [53].”
In the proceedings for seditious libel, Hayes was represented by W C Wentworth. On the day of the trial, Wentworth finally signed and sent a letter to the Secretary of State for the Colonies, a sixty-eight page closely written document attacking Darling’s administration and specifically seeking that he be impeached, including for murder, for his role in the case of Sudds. Wentworth had been sitting on a draft of this charge for two years. Darling’s renewed attack on the press, finally confirmed when this case was listed for trial, spurred him to act. The trial proceeded before Mr Justice Dowling and a military jury.
On this occasion Dowling gave a balanced direction to the jury, noting their peculiar position as military officers. The Australian newspaper, itself, described his summing-up as “a most luminous and impartial charge” and said that the finding of guilty had astonished most people [54].
Dowling reserved for consideration by the Full Bench an objection to competency of the jury. Before the Full Bench, Wentworth attacked the constitution of the jury on the basis that a jury of military officers could not validly be constituted in a case in which their commanding officer was the prosecutor. He further relied on the fact that on this particular jury, each officer was paid an additional fifteen shillings a day, a payment in the sole discretion of the Governor. He also noted that the prior system by which jury service of members of the garrison was selected on a roster basis, had been changed so that a process of selection occurred as to which officer would serve on which jury. Warming to his task Wentworth suggested that not only should juries be as “spotless” as Cornelia but should be as much “above suspicion” as Caesar’s wife – his marriage to Pompeia ending in scandal - in effect, the contemporary test of apprehended bias.
Forbes CJ and Dowling J, with Stephen J dissenting, rejected the attack and recorded a conviction. Stephen J pointed out that a military jury could have been composed from half pay officers and naval officers in port, who were not under the direct military control of the Governor. To a modern ear the position taken by Stephen carries much more conviction than the learned discourses of both Forbes and Darling, who applied a literal approach to the peculiar mode of trial – apparently used previously only at Gibraltar - for which the British Parliament had provided in New South Wales.
Hayes spent a period in prison, but his fine was paid by public subscription. Throughout his six months imprisonment, Hayes continued to edit the Australian.
This solitary prosecution, on a very narrow basis, of Hayes was mild in comparison with a systematic campaign launched against Hall of the Monitor. By the end of 1829 he would be convicted on six separate charges. Two in April and four in December.
The first was a charge of seditious libel of the Governor, for an imputation that he had played an improper role in the selection of the jury in his prosecution for libel of Archdeacon Scott. In the same month, he was also found guilty of criminal libel of the commandant at Port Macquarie, whom he accused of misappropriating government grain. On both occasions, the jury were strictly directed that truth was irrelevant.
In December 1829, Hall had to be brought from prison to stand trial again and again. In four criminal libel prosecutions, Hall was found guilty with respect to allegations he made against the Governor, the Colonial Secretary and two lesser officials [55].
Actions in libel were to become a Sydney sport. Hall himself took proceedings for criminal libel against the editor of the semi-official Gazette, as did Wentworth. Sydney’s position as a world capital of defamation litigation was established in 1829.
Darling did not rest content with actions for criminal or seditious libel. He sought to muzzle the press by exercising the full weight of his discretionary authority, in some respects, as the Court subsequently found, improperly.
When Hall applied, pursuant to announced government policy, for release of unoccupied lands adjacent to his own land, he was rejected [56]. He was demoralising the community, he was told, by treating the clergy with disrespect [57]. The policy of encouraging migration by land grants was set aside for political reasons.
A more direct attack on both the Australian and the Monitor was the attempt by Darling to remove employees who were assigned convicts. All private enterprise in Sydney depended, in large measure, on the labour of such convicts. Their withdrawal would cripple any business. In the case of the newspapers, the persons with the technical skills as printers were amongst those persons assigned. The withdrawal of their labour would, in substance, stop the newspapers. Darling’s attempt to act in this manner would be declared invalid by the Court [58].
In March 1829 a journalist on the Australian was at the Supreme Court taking notes of a trial when a constable entered the Court and took him away to the prisoners’ barracks – now the Hyde Park barracks - his assignment as a convict having been withdrawn. On the same day Hall’s foreman printer at the Monitor was summoned by the Superintendent of Convicts for the same purpose. Hall protected him. However, eventually, the printer was arrested and forcibly dispatched to Wellington, on the other side of the Blue Mountains. Darling defended the withdrawal of the printer on the basis that it would give Hall “less means of disseminating his poison” [59].
The Supreme Court had already handed down a judgment in another case declaring that the Governor did not have an unconfined discretion to revoke assignments of convicts [60]. The executive ignored the judgment. So did the magistrates before whom Hall was prosecuted for harbouring an escaped convict. Hall had attacked the exclusivist magistracy – for receiving stolen goods, torture, harassment, theft of fines, sexually abusing convicts, excessive and improper flogging [61] - as often as he had attacked Darling. The Supreme Court quashed the conviction.
The judges of the Court dismissed, with palpable suppressed anger, criminal proceedings against the magistrates for their obvious abuse of power and contempt of the Court. The Secretary of State for the Colonies in London would send a blistering dispatch regretting the public perception that Darling was “endeavouring by this use of your power to harass a political opponent and to cripple his operations” [62]. Darling was directed never to use the power except for a proper purpose, primarily the welfare of the convict.
In 1827 when Forbes had rejected certain provisions of the Act to license newspapers, some sections were in fact enacted. One of them was a section modelled on a provision of one of Castlereagh’s notorious “Six Acts” of 1819 – the attempt by the Tory government to suppress dissent - by which the Supreme Court was given a discretion to banish from the colony any person convicted for a second time of seditious libel. This was a provision capable of having the same degree of finality as the refusal of a licence.
In January 1830 Darling convinced the Legislative Council, of which Forbes was a member, and, it appears without dissent from him, to approve a Bill amending that provision, so that the banishment upon a second conviction for seditious libel became automatic and was not in the discretion of the Court, i.e. mandatory sentencing.
Hall, still editing the Monitor from prison, published a depiction of a coffin with an inscription in Latin which, translated, said:
“Under the government of Sir Thomas Brisbane, Knight, liberty of the press was born. Under the government of Ralph Darling, Esquire it was strangled on the 29th day of January 1830. I shall rise again [63].”
Events were turning against Darling. A few months later the British Parliament repealed the provision permitting banishment in the original Act, which had served as the model for New South Wales. Then, the government of the Duke of Wellington fell and was replaced by the liberal administration of Earl Grey. On advice of his British ministers, the King disallowed the New South Wales Act to make banishment mandatory.
Darling was criticised in dispatches from London for allowing the situation to get out of control and, specifically, for seeking to interfere with free speech to a degree now regarded as unacceptable. There should be no permanent system for controlling the press, the Secretary of State for the Colonies told Darling. Any proceedings against the press should be “confined, under the pressure of extreme necessity, to the occasional exigency of some particular case” [64]. The laws of libel needed no reinforcement and proceedings for seditious or criminal libel should be used sparingly.
In February 1831, Darling released Hall from prison, two years early. When Darling’s six year term expired, his appointment was not renewed and he left Sydney on 22 October 1831. Hall announced the event in the Monitor in large capitals on its front page:
THE REIGN OF TERROR ENDED.”
Wentworth organised a feast at Vaucluse House where an ox, half a dozen sheep and copious amounts of Coopers and Wrights beer was consumed, together with a thousand loaves of bread. A band played “Over the Hills and Far Away”.
A few years later, in 1835, when Sir Francis Forbes had to leave the Colony, not least for his health, the then new Sydney Herald poured scorn on the proposal that a public meeting be held to commemorate his contribution. The Herald proclaimed:
“We admit that every Convict in New South Wales is bound, in common gratitude, to sign an address to Mr Forbes … From this portion of the ‘people’, therefore, Mr Forbes richly deserved, not only an address, but a piece of plate into the bargain; but … the body of respectable Emigrant Colonists owe him no such obligation [65].”
And so, following quickly on the creation of the Sydney tradition for defamation litigation, another grand Australian tradition was born, the short memory of the media.
The effect of the law of libel on freedom of the press has been the subject of debate in New South Wales for over 170 years. It is surprising how many of the issues and arguments were already current in the 1820’s. One thing is, however, worth acknowledging. The contribution of the first judges of this Court, particularly of the first Chief Justice, to freedom of the press was substantial and worthy of commemoration.
Until comparatively recently, Australian history has generally been told as if it consisted only of the achievement of independence from England: constitutional, political, economic, military, cultural, social and legal independence- “a march towards the light” as one historian has described it [66]. However, many important institutions were created quickly and have developed in a distinctive way over long periods of time. The rule of law, the independence of the judiciary, supported by a vigorous and independent bar, and freedom of the press, driven by cantankerous editors, are such institutions [67]. These were and are interdependent institutions, the strength of which is determined, to a substantial degree, by their longevity. We do well to understand the source of that strength.
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1 The fullest treatment of the Sudds Thompson Affair remains C H Currey, Sir Francis Forbes: The First Chief Justice of the Supreme Court of New South Wales Angus & Robertson, Sydney, 1968, ch XVIII. The principal official communications and a number of media reports are set out in Historical Records of Australia, Series 1, vol XII at 715, 766 (hereafter HRA (i) Vol 12). Accurate shorter summaries appear in: C M H Clarke, A History of Australia, vol 2, Melbourne University Press, Melbourne, 1968, 71-73; Alex C Castles, An Australian Legal History, Law Book Company, Sydney, 1982 159-160; J B Hirst, Convict Society and Its Enemies: A History of Early New South Wales, George Allen & Unwin, Sydney, 1983, 177-179. Summaries also appear in the notes to a number of relevant decisions of this Court during the course of the subsequent controversy which appear in the extraordinarily useful compilation of the early decisions of this Court prepared by Professor Bruce Kercher and his associates at the Law School of the University of Macquarie accessible at www.law.mq.edu.au/scnsw. See generally Bruce Kercher “Publication of Forgotten Caselaw of the New South Wales Supreme Court” (1998) 72 ALJ 876. Judge Woods appropriately calls these reports “The Kercher Reports” (K.R.). See G D Woods, A History of the Criminal Law in New South Wales, Federation Press, Sydney 2002, p xiv. The Subject Index of the site includes a reference to “Sudds and Thompson Case”. Many of the cases hereinafter referred to can be accessed via the Subject Index under the headings “Forbes CJ and Governor Darling, Conflict Between”, “Criminal Libel”, “Seditious Libel” or under the Case Index by case name.
2 Pike et al Australian Dictionary of Biography, M.U.P., Melbourne, 1969, vol 2, “Wardell” at 571.
3 HRA (i) Vol 12 p736.
4 K S Inglis, The Australian Colonists: An Exploration of Australian Social History 1788-1870, M.U.P. Melbourne, 1924, p40.
5 See e.g. Hirst, op cit, pp178-179.
6 K.R. see Transportation Opinion, 13 December 1826.
7 See e.g. Currey, supra, esp 13-14 and 18-19.
8 See J M Bennett (ed), Some Papers of Sir Francis Forbes: First Chief Justice in Australia, Parliament of New South Wales, Sydney, 1998 at 110.
9 See generally Sir James Fitzjames Stephen, A History of the Criminal Law in England, Macmillan, London, 1883, Ch 24.
10 See R v Howe, 20 October 1826, at the K.R. See also Currey, supra, at 189-190.
11 A G L Shaw Convicts and Colonies Faber, London, 1966, p194.
12 See A G L Shaw, Heroes and Villains in History, Sydney UP, Sydney, 1966; B Fletcher, “Administrative Reform in NSW under Governor Darling”, 1979, 38 A J of Public Admin 246; B Fletcher, Ralph Darling: a Governor Maligned (OUP Melbourne 1984).
13 Bennett, Some Papers of Sir Francis Forbes, supra, 186.
14 See my address “Economic Rationalism and the Law” (2001) 24 UNSWLJ 200 at 211-212.
15 The Colonial Office supported procedures that promoted expedition. See Paul Knaplund, James Stephen and The British Colonial System, Uni of Wisconsin P., 1953 at 233-234.
16 Bennett, Some Papers of Sir Francis Forbes, supra, at pp184-185.
17 See K.R., R v Magistrates of Sydney at [16].
18 See Castles, An Australian Legal History, op cit at 185-186, 273. Forbes CJ’s judgment was nullified by the British Parliament in the Australian Courts Act 1828.
19 See J M Bennett, Sir John Pedder: First Chief Justice of Tasmania, University of Tasmania, 1977, esp at 5, 10-14; J M Bennett, Sir Francis Forbes First Chief Justice of New South Wales 1823-1837, Federation Press, Sydney, 2001 at 87-88, 91-92.
20 See HRA, (i), Vol 13, esp at 282-285. See also K.R., Newspaper Acts Opinion, 16 April 1827.
21 Bennett, Some Papers of Sir Francis Forbes, supra, p120.
22 See, for example, J W Gough, Fundamental Law in English Constitutional History, Oxford Clarendon, 1955. On the English background to American rights discourse, see e.g. Bernard Bailyn, The Ideological Origins of the American Revolution, Harvard Uni, Cambridge Mass (1992) at 175-198; Gordon S Wood The Creation of the American Republic (1776-1787) W W Norton, New York, (1969) esp at 259-268; Gordon S Wood The Radicalism of the American Revolution, Random House, New York, 1893, esp 11-16 and generally John Phillip Reid The Concept of Liberty in the American Revolution, Uni of Chicago P, 1988; John Phillip Reid Constitutional History of the American Revolution: The Authority of Rights, Uni of Wisconsin P, 1987; John Phillip Reid, Constitutional History of the American Revolution: the Authority of Law, Uni of Wisconsin P, 1994.
23 The fullest treatment is Currey, supra, ch XX. See also footnote [8] to the “Newspaper Acts Opinion” in K.R.; J M Bennett, Sir Francis Forbes, op. cit., at 94-100. The basic correspondence is set out in HRA (i), Vol 14, pp374-387 and 391-399.
24 See HRA (i), Vol 13, at 395.
25 Ibid p396.
26 Ibid p398.
27 HRA (iv), section A, Vol 1, pp737-738.
28 See Bennett, Some Papers of Sir Francis Forbes, supra, at 164.
29 ibid, at 187.
30 Quoted in Currey, supra, at 307.
31 See HRA (i), Vol 13, at 429-433.
32 See Currey, supra, at 253; the K.R., R v Wardell (No 1), 26 June 1827.
33 See HRA (i), Vol 13, 723-724.
34 In K.R., see R v Wardell (No 2) and R v Wardell (No 3). See also Brendan Edgeworth “Defamation Law and the Emergence of a Critical Press in Colonial New South Wales 1824-1831”, (1990) 6 Australian Journal of Law and Society, 50 esp 70-72.
35 HRA (i), Vol 13, p718.
36 HRA (i), Vol 13, p693; c/f HRA (i), Vol 14, p359.
37 HRA (i), Vol 13, at 717.
38 See HRA (i), Vol 13, at 720.
39 See e.g. HRA (iv), section A, vol 1, at 682, 685.
40 HRA (iv), section A, vol 1, at 681-682.
41 See K.R., R v Hall (No 3), 7 July 1828.
42 HRA (i), Vol 14, p195.
43 HRA (i), Vol 14 esp at 365.
44 See R T Wyatt “A Wine Merchant in Gaiters: Thomas, Hobbes Scott, Archdeacon of NSW, 1824-1829” 1949 XXXV RAHS J. and Proc. 145.
45 See Bruce Kercher “Establishment, Freedom of Speech and the Church of England: Pew Disputes in Early Nineteenth Century New South Wales and Newfoundland” (2000) 6 A. J. of Legal Hist. 135.
46 Wyatt, ibid at 239.
47 See Currey, supra, at 311-312. The relevant litigation is in K.R. as R v Hall (No 1), 25 September 1828; R v Hall (No 1), 12 March 1829 and Hall v Scott, 6 April 1830.
48 K.R., see R v Hall (No 2), 29 September 1828.
49 See Bennett, Sir James Dowling: Second Chief Justice of New South Wales 1837-1834, Federation Press, Sydney at pp60-61.
50 For Hall’s later complaints about this proceeding see HRA (i), Vol 15, esp 633, 635. Note that at 635 Hall complained that Dowling sat alone on this occasion but the Sydney Gazette reproduced in K.R. and R v Hall (No 2), 29 September 1828 suggests that he sat with Forbes. Hall is more likely to be right.
51 See Currey, supra, at 352.
52 Ibid.
53 See K.R., R v Hayes, 14 April 1829.
54 Ibid p9-33.
55 See Bennett, Sir James Dowling, supra, ch 4, esp at 65-68; on the Macquarie site see R v Hall (No 6), 21 December 1829, R v Hall (No 7), 23 December 1829 and R v Hall (No 8), 23 December 1829. See also Currey, supra, ch 34.
56 See HRA (i), Vol 14, at p(vi)-(vii).
57 Wyatt, esp at p 245.
58 See K.R., Hall v Rossi, 15 March 1830; also HRA (i), Vol 15, at 631, 640. Bennett, Sir James Dowling, supra, 68–71. See also the K.R., Convict Assignment Opinion, 3 October 1827; HRA (i), Vol 13, 608-612.
59 HRA (i), Vol 15, p53.
60 See K.R., In re Jane New, 6 March 1829. Forbes’ detailed consideration of the statutory provisions, which led him to conclude that the Governor could not revoke the rights of property in an assigned convict, had been known to Darling for almost two years. (See e.g. HRA (i), Vol 13, at p611; Currey, supra, ch 31.)
61 David Neal, The Rule of Law in a Penal Colony: Law and Power in Early NSW, Cambridge U P, 1991 at 129.
62 HRA (i), Vol 15, p812.
63 See Currey, supra, at 371.
64 HRA (i), Vol 16, p11.
65 Bennett, Sir Francis Forbes, supra, at 125.
66 Alan Atkinson, The Europeans in Australia: A History, vol 1, Oxford U P., Melbourne, 1996, p xii.
67 See e.g. Neal, supra, esp ch 3 and ch 4.
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