Sunday, 4 August 2013

Establishing a judiciary in Australia

The establishment of a professional colonial judiciary in NSW posed a series of problems. First, until representative institutions were introduced in 1823 and, arguably until those institutions included an element of election in the 1840s and given the highly personal nature of the gubernatorial power, the judiciary was the only body that could effectively question the authority and actions of governors. Tensions between the judiciary and the colonial authorities emerged from the early 1810s and intensified in the 1820s and early 1830s. Secondly, since the Colonial Office played a major role in the appointment of the colonial judiciary, there was a perhaps inevitable ambiguity in its attitude to judicial decisions especially when those decisions challenged the authority of colonial governors. Successive Colonial Secretaries found themselves having either to support their governor or their judges reflecting the potential conflict between their political and legal roles. The Colonial Office could and did refer the decisions of the colonial judiciary to English law officers and appeal courts but it was also prepared to recall judges whose actions it found unacceptable. This did not prevent their subsequent reappointment in other parts of the empire though the causes of the initial dismissal often reappeared. For example, Justice John Walpole Willis was dismissed from his position in Upper Canada because he was considered too sympathetic to reformist sentiment in the colony and was prepared to make the colonial administration accountable for its actions. [1] Willis appeared in Victoria in the early 1840s with similar consequences. [2] Similarly, Jeffrey Bent was dismissed as a judge in NSW, largely because of his awkward attitude but reappeared and caused problems in the West Indies first in Grenada then Trinidad and St Lucia and finally British Guiana.[3] Finally, there were continuing tensions between the free settler exclusionists and ex-convict emancipists over their legal and political rights. Although conservative in attitude, exclusionists sought to increase their political control over the colony by calling for representative institutions and by restricting the rights of emancipists. For emancipists, the critical issue was whether, having served their sentences, they should be regarded as citizens with the same legal rights as free settlers.

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Lieutenant-Colonel Lachlan Macquarie (1762-1824)

The first legally qualified judge-advocate, Ellis Bent,[4] who was actually effective in the role, was not appointed until 1810.[5] His official duties as judge-advocate were diverse, extensive and exacting and he presided over the Civil and Criminal Courts. At this time there were no attorneys in the colony who had come there free. There were several who had been struck off the rolls when convicted of the offences that had led to their transportation. To prevent litigants bringing their personal enmities and passions into the court, Bent adopted a pragmatic stance permitting three of these ex-convict lawyers to practice in the Court of Civil Jurisdiction; but he admitted them, as he was careful to tell them, not as attorneys, but only as the specially appointed agents of those who might see fit to employ them.[6] To meet the situation for which he was obliged thus temporarily to provide, he recommended that a few attorneys of good repute should be encouraged by the government to translate themselves to New South Wales; if and when they arrived, he made it clear, he would withdraw the tentative permission given to the ex-convict attorneys to appear before him as agents. It was not until January 1815 that two attorneys William Moore and Frederick Garling arrived in NSW. [7] Bent’s decision reflected his general attitude to the emancipist controversy and he was prepared to admit to the jury box ‘the more respectable and affluent of those who, [having] been transported to this country, had either satisfied the full sentence of the law or received a free pardon’. However, he thought that the appointment of emancipists to more important offices should be decided, ‘not on any theoretical grounds, but on a sober and minute consideration of its most remote practical consequences.’

The Colonial Office was disinclined to limit the governor’s powers and Bent’s proposed reforms[8] were not well received, though in 1823 a number of them were incorporated in the New South Wales Act. Bathurst thought there were ‘many advantages’ in ‘the continuance of a judicial officer who bore a commission exclusively military’; the provision made in 1787 for the administration of the criminal law was unchanged, its administration remained with Ellis Bent, whose title of judge-advocate was unaltered. For civil cases, a Supreme Court was established composed of a judge and two assessors, with a jurisdiction in equity, probate and all common law matters except where the cause of action was below £50; when the amount involved was less, cases were to be heard by a tribunal called the Governor’s Court, over which the judge-advocate was to preside. Bent was acutely critical of these changes. By the time these Letters Patent were promulgated on 12 August 1814, the governor and the judge-advocate had become estranged because of their opposed views on the status of the judiciary in relation to the executive in NSW. Macquarie took the words of Bent’s commission, ‘you are to observe and follow such orders and directions from time to time as you should receive from our governor’, to mean precisely what they said. Apart from his strong views on the independence of the judiciary, Bent interpreted these words as requiring obedience to lawful orders and he refused to comply with directions that he considered involved his doing or officially agreeing to an illegal act. The relationship between Bent and Macquarie was made more difficult by Bent’s growing ill-health that led to his early death in 1815.

The situation was exacerbated by the arrival, in mid-1814, of Jeffrey Bent who had been appointed as judge of the Supreme Court of Civil Judicature, created by the Letters Patent on 4 February 1814.[9] Like his brother, Jeffrey had cordial relations with the free settler elite because of mutually conservative views and distaste for Macquarie and his policies. He was unwilling to open his court until lawyers arrived from Britain[10] and as he held his office under the Crown and was not required, as was the judge-advocate, to obey the orders of the governor, Macquarie could only fume and report the whole matter to the Colonial Office.[11] These mounting differences led Macquarie to request Bathurst to accept his resignation unless the Bents were removed.[12] Bathurst decided in January 1816 to support his governor and recall the judges. They seemed, he wrote, ‘too much disposed to resent the authority of the Governor and to withhold from him that cordial co-operation without which the business of the colony could not be satisfied’.[13] Bathurst based his dismissal of Jeffery on the latter’s closing of his court, even though he approved the judge’s attitude to convict attorneys as a general principle.[14]


[1] Wilson, Alan, ‘John Walpole Willis’, Dictionary of Canadian Biography, Vol. 10, 1871-1880, 1972, pp. 704-707.

[2] Behan, H. F., Mr. Justice J. W. Willis: with particular reference to his period as first resident judge in Port Phillip 1841-1843, (Glen Iris), 1979.

[3] The commentary in HRA stated that Bent was not considered ‘blameworthy’ by the British government that chose to employ him elsewhere: HRA, Series I, Vol. 9, p, 864

[4] Currey, C.H., ‘Bent, Ellis (1783-1815)’ and ‘Bent, Jeffrey (1781-1852)’, ADB, Vol. 1, pp. 87-92.

[5] HRA, Series I, Vol. 7, p. 81 deals with Bent’s appointment following the suspension of Richard Aitkins. Macquarie granted him 1,265 acres of land in the Bringelly District in 1810: HRA, Series I, Vol. 7, p. 440.

[6] His brother Jeffrey took a more conventional stance objecting to the admission of ex-convicts as attorneys: see Macquarie to Bathurst, 22 June 1815, HRA, Series I, Vol. 8, pp. 480-483.

[7] See, Mckay, R.J., ‘Moore, William Henry (1788-1854)’, ADB, Vol. 2, pp. 255-257 and McIntyre, Joanna, ‘Garling, Frederick (1775-1848)’, ADB, Vol. 1, pp. 426-427. See also, Bathurst to Macquarie, 13 February 1814, HRA, Series I, Vol. 8, p. 139 stated that, following Jeffrey Bent’s recommendation, two solicitor would be proceeding to NSW.

[8] See, HRA, Series I, Vol. 7, pp. 814-820 prints Bent’s proposals sent to Lord Liverpool.

[9] Macquarie to Bathurst, 28 June 1813, HRA, Series I, Vol. 7, p. 777 recommending Bent’s appointment as a puisne judge: ‘...of Mr. Jeffery Bent to be the Assistant Judge Could not fail of producing so desireable an Object, when United with the Mild and Conciliatory Manners of his Brother, Mr. Ellis Bent.’

[10] See, Macquarie to Bathurst, 24 March 1815, HRA, Series I, Vol. 8, p. 466: ‘...frivolous and ridiculous Reason’ for not opening his court.

[11] See his complaints in Macquarie to Bathurst, 30 November 1814, and Macquarie to Bathurst, 24 February 1815, HRA, Series I, Vol. 8, pp 380-383, 389-399.

[12] Macquarie to Bathurst, 1 July 1815, HRA, Series I, Vol. 8, pp. 620-622.

[13] Bathurst to Macquarie, 18 April 1816, HRA, Series I, Vol. 9, pp. 107-108

[14] Bathurst to Jeffrey Bent, 12 April 1816, HRA, Series I, Vol. 9, pp. 112-113.

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