Friday, 30 August 2013

Parliamentary sovereignty and foreign policy

It’s less than twelve hours since the shock defeat of the government not over involvement in a punitive attack on Syria but on the principle of such an attack.  It is to the Prime Minister’s credit that he immediately accepted the verdict of the House of Commons as well as making clear that he will not use his powers under the Royal Prerogative to thwart that verdict, something that is within his powers to do.  In fact, on this particular issue the Prime Minister was on a hiding to nothing whichever way the vote had gone.  Had he won the vote, this morning people would be saying that Britain was again acting as the United States’ lap-dog and that there would inevitably be mission creep leading to more direct involvement in Syria.  Now that he has lost the vote, Britain is being accused by some of appeasing dictators, that our standing in the world community has been diminished and that this is a bad day for democracy.  Given that even the most naive commentator could have predicted these outcomes, one has to ask why the Prime Minister went down a road that was going to lead to disappointment whatever the outcome.  In reality, the government was unable to convince MPs and by extension the country that we should be involved in yet another Middle East adventure. 

Within the British Constitution, the executive makes and implements policies while the legislature hold those policies to account.  It is not a case of who is in charge. Neither is it the case that MPs set Britain’s foreign policy; they simply rejected a policy that the government proposed as is their constitutional duty.  Foreign policy is this morning still set by the executive but it must, as has been the case since the votes on the Iraq war in 2003, carry Parliament with it instead of relying on the antiquated notion of the Royal Prerogative.  Foreign policy, especially in relation to peace and war, is now a collegial matter.  The government lost because it was unable to convince MPs of either the intelligence or legal case for intervention and this raises important questions not simply about the legitimacy of intervention but raises important questions about political timing:

  • Given that intelligence concluded that there had been 14 previous chemical attacks in Syria, was it simply the scale of the attack last week that led to a change in policy from one of diplomatic warnings but largely inaction to intervention?  In other words, the global community (effectively the alliance of the willing in the West) could not longer be seen to do nothing. 
  • Given that this is the case, why then did the West seek to intervene before the UN weapons inspectors has completed their examination of the incident and before the matter had been discussed in the UN Security Council?  In other words, why did it not follow due process?  In Britain, this became a critical issue when Ed Milliband decided, probably strongly influenced by the poisonous legacy of Iraq, that he could not support the government’s policy until due process had been observed.  Whether this was a principled stance or political opportunism, the Prime Minister should at this point have postponed any debate until after the weapons inspectors reported (probably early next week) rather than proceed with a vote on the principle of intervention.
  • That he did not reflected what most commentators believed: Parliament would vote for the principle of intervention and that this would have made it more difficult for it later to vote down any motion calling for that principle to be put into practice.  MPs would need to demonstrate why, having voted for the principle of intervention, why it should not be applied in the case of Syria.  At one level this was a tactically sound approach from the government as there seemed little likelihood that it would lose.  In fact, had all the Labour MPs been present, it is likely that it would have lost by a greater margin that thirteen votes.  Had the Prime Minister decided to postpone the debate until next week it is quite possible, even probable, that he would have won.  Timing it seems is everything.

Wednesday, 28 August 2013

Evidence, International Law and Intervention

There appears to be a new ‘standard of proof’ among western politicians based round the principle of asserting something is the case and then later finding the evidence that sustains the case.  Yet, the only thing about the chemical attack a week ago that is clear is that an attack occurred and large numbers of people died.  What is not is who was responsible.  The balance of probability points to the Assad regime—it has the necessary resources and means of delivery and the attack took place in an area controlled by rebel forces—but in matters where the West is inclined to intervene I think that we need to apply the principle of ‘beyond all reasonable doubt’ not the lesser burden of proof.  Given that the policy of the Western allies towards Syria over the past year has been one of procrastination, allowing weapons inspectors time to collect the necessary evidence and establishing who was responsible for the attack before intervening would be a better solution than the current gung-ho approach.  There have been chemical attacks before (though not on this scale) and there have been atrocities on both sides, ‘red lines’ have been crossed in the past but, apart from strong words, the West has continued its attempts to find a political and diplomatic solution.  Western intervention may well make a bad situation worse.  Intervention in Iraq, though no one is talking about boots on the ground in Syria, makes that point  and if Tony Blair, the Middle East ‘peace envoy’ is in favour of intervention then I think that we should be very careful.

So, without definitive proof that the Assad regime perpetrated the atrocity, would military intervention be legal?  In the absence of an international court that can give a definitive ruling on the legality or otherwise of intervention, the West appears to be relying on the developing notion of ‘responsibility to protect’ that emerged out of the humanitarian disasters in Kosovo and Rwanda in the 1990s.  The idea is widely though not universally accepted and has three parts:

  • States must protect their own populations from genocide, war crimes and crimes against humanity, while, simultaneously, the international community has an obligation to help states prevent such crimes.
  • Where there is strong evidence of these crimes and a state cannot or will not stop them, the international community should exhaust all peaceful means in seeking to bring the atrocity to an end.
  • If all that is done, and fails, the international community can use military force.  The force deployed would be limited and specifically targeted at stopping further atrocities.

If all these criteria are met, then the use of military force would, some lawyers argue, be legal in international law.  To have real legitimacy, military intervention should be authorised by the United Nations Security Council, the primary arbiter in the use of force in international law. Given Russia’s and China’s support for the Assad regime, this is an unlikely scenario. The critical question is whether the second of these elements has been met: have all peaceful means been exhausted?  Given that Syria’s divisions can only be resolved by a peaceful political solution, this is doubtful and in that respect the legal case for intervention is far from conclusive.  Whether the ‘responsibility to protect’ covers a punitive strike to punish the regime for using chemical weapons is also doubtful.

The Middle East has long been a tinder-box and the history of western intervention is hardly one of unmitigated success.  Take, for instance, the initial success of military intervention in Iraq followed by the failure to have a longer-term plan for dealing with the aftermath of regime change.  The West’s solution appears to be that introducing democracy will resolve the problem.  Wrong.  What the introduction of democratic institutions in countries without a democratic tradition does it to exacerbate divisions that had previously been held in check by strong dictatorial leadership—the tyranny of the majority replaces the tyranny of the individual.  We seem to forget that western democracy did not emerge as a refined system but was deeply contested over many decades and yet we appear to think that it will immediately put down deep roots in societies where strong leadership has been the norm. 

Statements that intervention will demonstrate ‘the West’s resolve not to allow the use of chemical weapons’ or ‘intervention is a test for Europe’ neglect the law of unintended consequences. 

  • If missile strikes (the most likely option for intervention) occur and further atrocities take place, what options are then open to the West?  Further strikes?  Physical intervention?  If so, who among the fragmented Syrian opposition is the intervention in favour of?  One of the problems with military intervention is that if it fails to achieve its objectives (and it is far from clear what the objectives in Syria are other than protecting civilians), what happens next?
  • Intervention will inevitably lead to increased tension between the ‘alliance of the willing’ and Russia and China.  It will make finding an agreed solution more not less likely.
  • Israel will be made more vulnerable to attack from Syria (something already stated) and bring it into a conflict that it has largely stood outside.  If Israel then attacked Syria, what would Iran’s response be?   Active intervention by Israel could unite Arab nations.

There is little appetite among public opinion in the West for further military ‘adventures’ in the Middle East.  Doing nothing (though the West has a long history of doing this) may no longer be an option but military intervention is not the answer.  The solution to Syria’s problems lies not in inflaming matters by intervention but in finding common ground with Russia, China and Iran that could form the basis for a peaceful solution.

Monday, 26 August 2013

Syria, chemical warfare and western intervention

The situation in Syria has deteriorated rapidly since the horrific nerve gas attack last week.  The PM is cutting his holiday short and is expected to hold a National Security Council meeting on Wednesday.  He had phone calls with leaders, including US President Barack Obama, this weekend, where they agreed on the need to take ‘strong action’.  William Hague, Foreign Secretary, stated that he would not go into options but was not going to rule anything in or out on this morning’s BBC’s Radio 4’s Today programme and that intervention (in some as yet unspecified form) could occur without the unanimous backing of the United Nations.  It all sounds depressingly familiar.

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William Hague has repeated his assertion that the suspected chemical attack was carried out by the Syrian regime not by those seeking to oust President Bashar al-Assad.  Now he may have sound intelligence for his statement but so far the rhetoric has not been backed by any concrete evidence.  UN weapons inspectors en route for the site this morning were fired on and had to withdraw.  There are only two possible explanations for the outrage: it was either action by the Assad regime (with or without his express instructions) or by the Syrian opposition.  If it was an action by the Syrian regime, it was poorly timed given the presence of the weapons inspectors in the country.  If it was an action by the Syrian opposition, they were killing people in areas they already control and could blame the Assad government.  Possible intervention seems to be based on a dodgy a dossier as the invasion of Iraq.  Both sides, it is claimed, have used chemical weapons in the past and both sides have been accused of committing human rights violations.  To conclude on the basis of no real evidence at all, that one side or the other committed this crime is pure speculation and should not be used as the basis for making a decision in favour of western intervention. 

There may have been a case for intervening in Afghanistan and Iraq and later in Libya and I emphasise ‘may’, but intervention has come at a massive human cost for military forces, insurgents and the civilian populations.  Whether this ‘war on terror’ has made the Middle East more stable or reduced the threat of terrorist activities is questionable.  The authorities, of whatever hue, will inevitably point to what has been achieved (whatever that means) but the experience of the last decade shows clearly that you cannot easily import western style democracy to countries without a tradition of democratic institutions and rights and that if democratic regimes do emerge, you have to be prepared to deal with governments, in Egypt for instance before the military coup, whose ideologies you do not like.  The situation in Syria is even more complex because there is no united Syrian opposition with different groups, with markedly different agendas competing not simply against the Assad regime but also against each other.  So who are you intervening to support?  This question will not go away even if the unlikely eventuality of complete UN backing is forthcoming unless you accept the amorphous and bankrupt notion of intervention to ‘protect the people’.  In Afghanistan, Iraq and Libya, intervention (whether you agreed with it or not) was in support of a specific goal; that luxury is unavailable in Syria.  What began as a campaign for democratic liberation has degenerated into a vicious, bloody struggle for military domination in which calls for democracy have become increasingly redundant.  So what are we considering intervention for?

Saturday, 17 August 2013

The ‘moral economy’, the market and politics

The notion of an ethical foreign policy developed by Robin Cook, something that came to an abrupt end with 9/11, and more particularly the impact of the financial crisis since 2008 and the scandal of MPs’ expenses raised important questions about the place of morality in politics and business.  It has become almost essential for politicians to ‘name and shame’ those who, even when they work within existing rules, have offended against the public’s sense of what is ‘right’.  This hair-shirt approach to politics has seen bankers, MPs, journalists, newspaper editors and proprietors and large corporations attacked, often by self-serving  and ‘holier than thou’ politicians for breaching the ‘contract’ between ‘the people’ and governing economic and political elites.  This revival of the notion of a ‘moral economy’ in which there are agreed, but generally ill-defined, standards against which people’s actions can be judged, has seen the idea of the free market come under sustained pressure to become more ethical in its operations.  One of the things that is evident from past experience is that when the moral economy and the free market come into conflict, it is the free market that emerges triumphant.
In part this is the result of the intense difficulty of making ethical judgements on which people actually agree.  Take the question of taxation.  Should people and business pay the taxes that the rules state that they should pay?  Most people would agree that they should.  However, when people are asked whether people should pay the taxes that are due from them following the ‘spirit’ of the rules as well the rules themselves, then the question become more problematic.  What do people understand by the ‘spirit’ of the rules and does it actually have any meaning at all?  If the rules allow people to avoid paying taxes, even aggressively avoid taxes, their actions are perfectly legal and calling upon the ‘spirit’ of the rules to get them to pay more taxes is morally repugnant.  If you think that people should be paying more tax and are using the rules to avoid paying more tax, then change to rules rather than using what can only be called moral blackmail to get them to divi up.  The rhetoric of morality is an excellent stratagem for rousing popular anger against those who offend public sensibilities and is often manufactured by politicians keen to show they are on the people’s side but rules always ultimately trump morality even if they have a moral grounding. 
Take the question of fracking and the so-called ‘dash for gas’. The most important role for the state is to provide security for its people and energy security is of particular importance as Britain is increasingly reliant on imported energy that could be turned off.  Here again there is a clash between the moral economy and the market.  Those opposed to fracking fall into different types.  There are those who are opposed to any fracking arguing that it will not resolve the problem of global warming—methane is released as part of the fracking process and is a powerful greenhouse gas—and that we should be looking at renewable energy to resolve the problem of energy security.  There are those who may or may not be opposed to fracking but don’t want it on their doorsteps.  There are those who are agnostic on the question but are concerned about the environmental effects of fracking and are not convinced that the regulations controlling exploration and extraction are sufficiently robust.  On the other side, there are those who argue that it will reduce energy bills, create jobs, contribute (along with nuclear and renewables) to energy security and will still allow Britain to reach its climate change targets.  Whatever the moral arguments for or against fracking, the critical issue for a state is fulfilling its imperative to provide people with security and that suggests a market solution—fracking may resolve a threat.  There may be moral issues about fracking that for some are absolute but the reality for most people is whether the lights and heating stay on or not. 
The problem for politicians, even if keen to use the rhetoric of morality, is that politics is the art of the possible not the art of moral absolutes.  Although there often is a convergence between what is possible or necessary and what is right in politics, if there is a choice between the two, what is right takes second place whether the decision made is ‘right’ or not. 

Judges and juries

The cautious approach to reform sought to define the powers of the governor and establish the principle of separation of powers in which the authority of the governor was constrained by the supervisory authority of the courts. Australian reformers drew on the history and traditions of the British constitution in their demands for a free press, trial by jury and taxation by representation. The passage of the Australian Court Act in 1828 made the NSW Supreme Court independent of the executive. It was not that governors such as Ralph Darling and Richard Bourke were opposed to notions of the free-born Englishmen, the issue was when the Australia colonies would be ready to assume greater responsibility for their own affairs in the form of further representative institutions and how governors responded to demands for those institutions.

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Sir Richard Bourke

The appointments of Richard Bourke as Governor of NSW in 1831 and Sir John Franklin as Governor of VDL in 1837 indicated that reform in Britain would be extended to the colonies. This was especially evident in the position of the jury system seen by Enlightenment thinkers as sanctioned not only by tradition but as an inalienable right of Englishmen. [1] Edward Hall, editor of the reformist Monitor wrote in The rights of juries that:

...self-defence and love of power, induce governments, even the best of them, to take little pleasure in enlightening the people, because such enlightenment make the people prying and impertinent, that is to say, freedom-loving people. [2]

The introduction of criminal and civil jury trials occurred gradually and faced stubborn resistance from the British Government. The campaign for trial by jury was taken up by free settlers as early as 1791 and by several governors including Hunter, King, Bligh and Macquarie.

John Thomas Bigge, who conducted a Royal Commission of Inquiry into Macquarie’s administration, did not support the efforts of the emancipists to establish a right to jury trial. [3] He gave three main reasons for rejecting the jury system: first, tensions between the free and freed settlers meant the system would not operate impartially; secondly, there were insufficient numbers of competent jurors to implement the system; and, lastly, serving on the jury would greatly inconvenience people. Nevertheless, juries were soon allowed with the 1823 Act providing for a judge and jury of seven commissioned officers, nominated by the Governor to try criminal issues before the Supreme Court. In civil cases, provision was made for a tribunal system where a judge and two assessors, who were magistrates nominated by the Governor, would determine the case. Where property valued at £500 or more was involved and both parties agreed to trial by jury, a jury trial could occur. The 1829 Act permitted the Supreme Court to order trial by jury in civil cases if either side requested it, but it was rarely used and most trials continued to be heard by judges sitting with assessors. The 1830s saw further reforms. In 1832 the NSW Legislative Council, with much prompting from Governor Bourke, passed an Act stating that trials of all civil matters were to be heard before a civil jury of twelve. Significantly, the Act also allowed limited use of trial by jury for criminal cases. In 1839, military trials were finally abolished followed by the use of military juries in 1840 and trial by assessors in 1844. The assessors were replaced by a jury of four in civil cases although the parties had the option of seeking a jury of twelve. These developments became permanent features of the administration of justice in NSW in 1847 and the campaign for full jury trial had finally succeeded.

In NSW the judges were necessarily drawn from England during this period. Although, those men varied in their political and social philosophies and their attitudes towards colonial conditions, it was possible and perhaps inevitable that some would see the value of independence and detachment in the judicial role, especially after 1820 when there was a conscious attempt to introduce more clearly the substance and values of English law to the colony. With responsible government constitutional argument and the protection of rights shifted more clearly into the legislative sphere in Australia as it had in Canada. Consequently, the rule of law became more clearly a court-based and legal doctrine, despite the idiosyncratic attempts of Justice Boothby in South Australia to give the judges primacy over colonial legislation.[4] However, it may well be that disputes between upper and lower houses within several Australian colonies that periodically produced legislative stalemate helped preserve a more clearly political role for the courts in Australia than was true in Canada at the same time.[5]


[1] Bennett, J. M., ‘The establishment of jury trial in New South Wales’, Sydney Law Review, Vol. 3, (1959-1961), pp. 463, 464-465.

[2] Hall, Edward, The rights of juries, in ten essays, (printed at the Sydney Monitor office), 1835, p. 70.

[3] Bigge, J. T, The Report on the Judicial Establishments of New South Wales and Van Diemen’s Land, 21 February 1823, (Cmnd. 33).

[4] Castles, Alex C. and Harris, Michael C., Lawyers and Wayward Whigs: Government and Law in South Australia 1836-1986, (Wakefield Press), 1987, pp. 126-134.

[5] See, Davidson, Alaistair, The Invisible State: The Formation of the Australian State 1788-1901, (Cambridge University Press), 1991.

Sunday, 11 August 2013

I’m afraid not Darling: Forbes versus Darling

Appointed in 1823[1] and first Chief Justice of the Supreme Court of NSW until 1837, Francis Forbes had significant powers.[2] He was not only head of the judiciary but also a member of the Legislative Council and, ex officio, of the later Executive Council.[3] The 1823 Act stated that the governor could not submit any bill to the Legislative Council until the chief justice had certificated that the proposed measure was not repugnant to the laws of England. [4] This placed an important constraint upon what governors could and could not do and brought Forbes into conflict especially with Ralph Darling. However, Forbes’ relationship with his first governor, Sir Thomas Brisbane was good. The new Legislative Council first met on 25 August and as Brisbane thought it wise not to attend its sittings Forbes was virtually its president. He established the criteria by which the governor was guided in nominating unofficial members and temporarily became the parliamentary draughtsman when Saxe Bannister, the Attorney-General proved incompetent. [5] On 14 October, Forbes construed section 19 of the 1823 Act that trial by common jury of twelve inhabitants, who had come to the colony as free men or had been born in it, was instituted for the first time in Australia, though it was limited to Courts of Quarter Sessions. On the same day the Australian, the colony’s first independent newspaper, was published by Robert Wardell and W.C. Wentworth who had qualified as barristers in England, were admitted as such, though they practised as attorneys in NSW as there was no division in the profession.[6] In November, the charter of the Australian Agricultural Company was issued; on its local committee the Macarthurs were very strongly represented. Invited by Sir Robert Wilmot Horton, permanent secretary at the Colonial Office to comment on the wisdom of the company’s million-acre grant, Forbes reported adversely on the formation of large estates and favoured ‘unlocking the land’ for settlers. He was also critical of members of the local committee who sold their stock to the company at high prices.

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Sir Ralph Darling

Forbes had already earned the opposition of the Macarthurs over his advice to Brisbane in a quarrel between Henry Grattan Douglass and other justices of the peace at Parramatta.[7] At the Colonial Office Forbes had read the reports relevant to Brisbane’s removal of the names of Samuel Marsden and Hannibal Macarthur and three others of the Parramatta bench from the Commission of the Peace and had agreed with James Stephen that the magistrates’ proceedings were indefensible. However, Marsden had retaliated against Brisbane’s action by sending defamatory letters to Sir Robert Peel and Wilberforce accusing Douglass of punishing convicts illegally. These letters were passed on to Bathurst who ordered an inquiry to be conducted in the colony by the governor, chief justice and Archdeacon Thomas Scott.[8] Their finding exonerated Douglass and reflected scathingly upon Marsden. The grand jury of Parramatta, of which Hannibal Macarthur was foreman, then indicted Douglass and two other justices for imposing what the jury considered an illegal sentence: daily flogging of a convicted thief until he disclosed the whereabouts of stolen goods. The men so indicted sought government intervention. On Forbes’s advice, Brisbane remitted the matter to the Legislative Council, which in turn searched all the available bench proceedings and found many precedents for the sentence imposed by the indicted justices, including some imposed by Marsden and Macarthur. Forbes then proposed an Act of Indemnity that was duly passed in October 1825. Meanwhile Bathurst had severely censured Hannibal Macarthur and ‘from that time’, wrote Forbes, ‘I have been a marked man and no efforts have been spared to get me out of the colony.’ The campaign against Brisbane was also vigorously continued and in 1825 he was relieved of his command and replaced by Ralph Darling. [9]

Tensions between the Governor and the judiciary reached a peak in the late 1820s. This was partly because of the more formal introduction of English law and the establishment of a conventional superior court system on the civil side. It also reflected the Darling’s and Forbes’ different personalities and political ideologies. Darling was a former general with some skill in that role but Forbes found him ‘quite unacquainted with civil business’ and possessed of ‘less knowledge of the laws of his country than any gentleman filling his high official station whom it was ever [his] fortune to meet’. Although ready to improve the efficiency of the administrative and fiscal affairs of the colony, he had a conservative’s suspicion and mistrust of political and social change and was quick to judge others unfavourably, especially if they disagreed with him, and unreceptive to criticism. At the same time, as a military man he was impatient with lack of action and the niceties of process. Darling also lacked sound legal advice from the law officers of the Crown that might have curbed his enthusiasm for executive initiatives of dubious legality. Francis Forbes by contrast was a liberal in political and legal terms. He was born not in England but in Bermuda.[10] Forbes had been educated and trained as barrister in London, and before going to Sydney had been Chief Justice of Newfoundland.[11] In that latter role he had developed a reputation as a liberal; for Governor Sir Charles Hamilton too liberal, because of the judge’s belief that law should to some extent reflect and respond to local conditions and needs and in the need to reign in inferior courts. Forbes served less than five years on the bench in Newfoundland, but his influence on the future development of the colony was profound. His judgments checked the abuse of power by officials, established Newfoundlanders’ rights to own property in the island, and showed the need for a constitutional form of government. Forbes recognised the need to bring English law and the rule of law much more fully into the operation of justice and governance in NSW. At the same time, as a sophisticated observer of British imperialism, Forbes was aware of the need to balance concerns with centralisation with appreciation of the realities of the particular colony, its history and population. In his judicial role he was perhaps too detached from an executive that needed sound legal advice.

A major area of conflict between Darling and Forbes was freedom of the press and the Governor’s increasing petulance towards radicalism in the colony, inspired in particular by William Charles Wentworth, lawyer and newspaper man, the leading advocate of the emancipist cause. Not satisfied with the conservative reforms to the constitution and justice system of NSW in the late 1810s and early 1820s, he was vigorous and vocal in his campaign for both trial by jury and representative legislative organs. Only these changes, he argued, would give colonists, including emancipists, a voice in both the administration of justice and their own governance. It was a combination of Wentworth and his journalistic colleagues, Wardell and Edward Smith Hall[12] advocating these views while labelling Darling as a tyrant that baited Governor Darling.[13] The Attorney General, Saxe Bannister unsuccessfully and ineptly sought to prosecute the newspapermen for seditious libel, an offence open to repressive use, even in England.

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Sir Francis Forbes

Darling then sought to muzzle them by other means. His instructions for controlling the press had been framed by James Stephen in the light of suggestions from Lieutenant-Governor Sir George Arthur in VDL. Arthur’s proposal of a licence revocable at the governor’s will had already been submitted to Brisbane who on Forbes’ advice declined to sanction it. [14] Darling was anxious to remain at peace with the press, although Arthur, on receiving similar instructions, promptly had bills prepared providing for licenses and imposing a stamp duty and sent them to Sydney for parallel action. Darling delayed until, angered by the criticisms of the Monitor and the Australian submitted these bills to Forbes for his certificate as prescribed in the 1823 Act. Forbes refused his certificate to the six clauses relating to a licence in the first bill because he believed them inconsistent with English law, a view later upheld by the law officers of the Crown. Giving what can only be described as a broad interpretation to existing constitutional doctrine and a political construction to the rule of law, the Chief Justice denied certification to the licensing law as repugnant to the freedom of the press. [15] He went so far as to describe this freedom as a constitutional privilege. Bruce Kercher suggested: ‘that [it] was as much a statement of political aspiration as law, given the repressive nature of English press laws’.[16] However, he did certify the other clauses and they became law as the Newspaper Regulating Act.

The second bill, as he received it, did not include the amount of stamp duty to be imposed, but he found no objection in law to a newspaper tax and gave his certificate, expecting that, when the crucial amount was determined, the bill would be returned to him for further certification. This was not done. A duty of 4d was inserted, the bill was passed, the governor assented and it was promulgated. Forbes maintained that these actions contravened sections 27 and 29 of the 1823 Act, c.96 and that the 4d tax was too high. He therefore intimated that, if the Act were challenged before the Supreme Court, he would declare it invalid.[17] Darling then proclaimed that ‘a certain Bill purporting to be an Act’, was suspended; later the authorities at Westminster upheld Forbes’ opinion and the Act was disallowed. In 1828, when bills to license auctioneers and places of public entertainment were submitted to Forbes, they were found by him to be open to the objection in law that had been fatal to the first six clauses of the Newspaper Regulating Act, but this time amendments were made and the requisite certificates were given. Forbes was not prepared to allow the colony to continue with a form of government that allowed repressive action and in which the governor was not subject to any local authority other than his own. He did so by invoking a liberal view of constitutional rights and of the rule of law that reflected the reformist sentiments he held, and caused him to support trial by jury and to muse about a legislative assembly in the colony.

Irritation at Government House was made worse when the Forbes notified Darling that certain regulations issued on 30 July 1827 for the assignment of convicts and the granting of tickets-of-leave were ultra vires. In Forbes’ opinion masters had a legal right of property in the service of convicts assigned to them and, although he approved the principle of tickets-of-leave as inducements to reformation, he considered that they could not be given legally to assigned servants or granted at all except under an authority conferred by parliament.[18] Again his opinions were upheld by the Crown law officers, much to the annoyance of Darling, who, on advice from the Home Office and his own legal officers, had revoked the assignment of certain servants of the editors of the Monitor and the Australian, with the avowed intention of restricting his critics’ output. In his frustration Darling suspected that the chief justice was colluding with Wardell, the editor of the Australian and saw Forbes unjustifiably as the main cause of his problems.[19] The fault rested with Darling and his legal officers, none of whom was a match for Wardell or Wentworth. The governor’s bitterness was intensified by a series of defeats in prosecutions for criminal libel instituted by the attorney-general. Although Wardell had offended grievously, Forbes thought his acquittals were probably due to the knowledge of at least some of the jury that the prosecutions had been ordered and they themselves nominated by the governor. In his dispatches Darling attributed these setbacks to the chief justice’s bias in favour of Wardell, an aspersion that Forbes convincingly rebutted.[20]

Darling was to get into a further notable scrape with the Chief Justice and his colleagues over his distaste for dissent before he was recalled in 1831. The issue was whether the undoubted executive power exercised by previous governors to assign and release convicts was now subject to the demands of the rule of law and examination by the Supreme Court. Darling in attacking one of his newspaper critics, Edward Hall, tried another tack.[21] By gubernatorial order he sought to deprive Hall of one of his assigned convicts, Peter Tyler. The Supreme Court had already determined that the revocation power did not give the governor unfettered discretion, because a decision had to be connected to a proper purpose, for example to grant a genuine indulgence to the convict or protect him from an abusive master. The Court, led by Forbes, concluded that Darling had abused his discretion in this instance, a decision that held even though the court’s interpretation was initially rejected in the Colonial Office.[22] Once again Forbes showed himself to be an opponent of arbitrary government, elevating the rule of law in the process.

The Hall case is also interesting in that, although the Supreme Court fought shy of issuing criminal information against the Sydney magistrates who had convicted Hall of harbouring a runaway convict, the judges criticised the magistrates for their decision. Dowling warned them against contempt of the superior institution. Furthermore, Hall ultimately secured damages against the magistrates in a civil action before the Supreme Court. This episode illustrates another point of tension within the administration of governance and justice in the colony, the identification of the magistracy with the conservative elite. In NSW conservative exclusionists were able to exercise significant power through their control of local government and justice. In the Hall case and other decisions of the Forbes court, judicial review of executive and administrative action took firm root in Australia.

Chief Justice Forbes stands out as genuinely committed to impartiality in the judicial role and as a sincere advocate of the rule of law, at times in a liberal sense. Forbes was one of those people of independent mind who, despite the personal attacks by opponents, such as John Macarthur, eschewed strong ties with particular interests in the colony and was by background, inclination and experience a shrewd observer of British imperialism and colonial development. He could relate the tradition of which he was unmistakably a part to both the present and future needs of the colonies in which he served. However, Forbes was not infallible and he may be criticised for taking an excessively disinterested position in relation to the need of Darling for sound and considered legal advice. Moreover, as Bruce Kercher had observed, he could be exasperatingly illiberal in certain contexts, for example legislation relating to bush rangers, and indecisive in others, as he seems to have been in relation to Aboriginal rights. He was, however, guided by a strong belief that ‘the judicial office...bowed to no other power but the supremacy of law’. [23] He stood out among other colonial judges of this period as being singularly adept in balancing a respect for English legal tradition with a recognition that the law needed to accommodate colonial constitutional change.


[1] Bathurst to Brisbane, 4 August 1823, HRA, Series I, Vol. 11, p. 102

[2] Bennett, J.M., Sir Francis Forbes: First Chief Justice on New South Wales 1824-1837, (Federation Press), 2001, pp. 16-37. See also, Currey, C.H., ‘Forbes, Sir Francis (1784-1841)’, ADB, Vol. 1, pp. 392-399 and Holloway, Ian, ‘Sir Francis Forbes and the Earliest Australian Public Law Cases’, Law and History Review, Vol. 22, (2004), pp. 209-242.

[3] Warrant appointing a Council in NSW, 19 January 1824, HRA, Series I, Vol. 11, pp. 195-196.

[4] See, New South Wales Act (1823) 4 Geo IV, c 96, s 29: ‘And be it further enacted that no law or ordinance shall by the said governor or acting governor be laid before the said council for their advice or approbation or be passed into a law unless a copy thereof shall have been first laid before the chief justice of the supreme court of New South Wales and unless such chief justice shall have transmitted to the said governor or acting governor a certificate under the hand of such chief justice that such proposed law is not repugnant to the laws of England but is consistent with such laws so far as the circumstances of the said colony will admit.’

[5] Currey, C.H., ‘Bannister, Saxe (1790-1877)’, ADB, Vol. 1, pp. 55-56.

[6] See, Currey, C.H., ‘Wardell, Robert (1793-1834)’, ADB, Vol. 2, pp. 570-572 and Persse, Michael, ‘Wentworth, William Charles (1790-1872)’, ADB, Vol. 2, pp. 582-589.

[7] HRA, Series I, Vol. 10, pp. 750 et seq. When Governor Sir Thomas Brisbane arrived in November 1821, Douglass became a regular visitor at his residence. This association brought him into conflict with his senior colleagues on the Parramatta bench. The first clash came in August 1822 over a convict girl, Ann Rumsby, whom he had taken into his home; Dr James Hall, surgeon superintendent of the Maria Ann in which she had been transported, alleged that Douglass was behaving improperly with her. Samuel Marsden, Hannibal Macarthur and three other magistrates held a meeting, to which Douglass was summoned but failed to appear. The magistrates then had Ann arrested, and for perjury she was sentenced to imprisonment at Port Macquarie. Brisbane intervened, gave her a free pardon, threatened to remove the Parramatta magistrates who had not only refused to sit with Douglass on the bench but also called a secret general meeting of justices to support their action, and complained to London of a conspiracy against Douglass. Douglass, however, soon showed that he could fend for himself. In April 1823, he brought an action for libel against Hall, claiming damages of £5,000, and was awarded £2 and costs. Next month with William Lawson he fined Marsden for allowing one of his convict servants to be at large and, when he refused to pay, had his piano seized and sold. Marsden promptly sued him for damages of £250, but the court awarded him only the amount of the fine. Marsden then complained to the bishop of London that Douglass was preventing inmates of the Female Factory from taking their infants to church for baptism, and connived with Hannibal Macarthur in a letter to Robert Peel at the Home Office, charging Douglass with drunkenness, torture of prisoners and other disreputable official conduct. These letters, forwarded to the Colonial Office, brought orders for an inquiry which exonerated Douglass but provided a loophole for Macarthur as foreman of the Grand Jury to publish further complaints against Douglass in the Sydney Gazette. Brisbane’s reports extolled his virtues with increasing warmth after each attack and in February 1824 he nominated him as commissioner of the Court of Requests and sent him to London to consult the Colonial Office on the functions of the new court. See, Noad, K.B., ‘Douglass, Henry Grattan (1790-1865)’, ADB, Vol. 1, pp. 314-316.

[8] Bathurst to Governor of NSW, 2 September 1824, HRA, Series I, Vol. 11, pp. 351-353, 462-465, 717-807.

[9] ‘Sir Ralph Darling (1772-1858), ADB, Vol. 1, 1966, pp. 282-286, and ibid, Fletcher, B.H., Ralph Darling: A Governor Maligned, provide biographical material.

[10] On Forbes, see Castles, Alex C., An Australian Legal History, (Law Book Co.), 1982, pp 182-184.

[11] On his period in Newfoundland see, O’Flaherty, Patrick, ‘Sir Francis Forbes’, Canadian Dictionary of Biography, Vol. 7, (University of Toronto and the Universit√© Laval), 1988, pp. 301-304.

[12] See, Kenny, M.J.B., ‘Hall, Edward Smith (1786-1860)’, ADB, Vol. 1, pp. 500-502 and Ferguson, J.A., ‘Edward Smith Hall and the “Monitor”’, Journal of the Royal Australian Historical Society, Vol. 17, (3), (1931), pp. 163-200.

[13] On this see Darling’s comments in a letter to Under Secretary Horton 15 December 1826, HRA, Series I, Vol. 12, pp. 761-762.

[14] Darling to Under Secretary Hay 4 December 1826, HRA, Series I, Vol. 12, pp. 725-729.

[15] HRA, Series I, Vol. 13, pp. 285-287 covers the disallowed clauses; see also pp. 289-297 for Forbes’ reasons.

[16] Kercher, Bruce, An Unruly Child: A History of Law in Australia, (Allen & Unwin), 1995, pp. 85-86; see also, Edgeworth, Brendan, ‘Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824-1831), Australian Journal of Law and Society, Vol. 6, (1990-91), pp. 67-70.

[17] Darling to Bathurst 29 May 1827, HRA, Series I, Vol. 13, pp. 374-379; Darling to Bathurst 30 May 1827, pp. 380-387.

[18] Forbes to Darling 1 August 1827, HRA, Series I, Vol. 13, p. 489.

[19] On the Wardell libel case, see, HRA, Series I, Vol. 13, pp. 477-484

[20] See, for example, Darling to Goderich, 10 September 1827, HRA, Series I, Vol. 13, pp. 509-510: ‘...Mr Forbes’s endeavours to assume a power of controlling generally the measures and acts of the Government....’ and Darling to Hay, 15 December 1827, HRA, Series I, Vol. 13, pp. 648-649: ‘...he has endeavoured to raise an Opposition to the Government.’

[21] There had been a succession of disputes between Hall and Darling dating back to 1826: see, HRA, Series I, Vol. 14, pp. vi-xiii.

[22] HRA, Series I, Vol. 16, pp. 292-294.

[23] Kercher, Bruce, ‘The Recognition of Aboriginal Status and Laws in the Supreme Court of New South Wales under Forbes CJ, 1824-1836’, in Buck, A.R.. McLaren, John and Wright, Nancy, (eds.), Land and Freedom: Law, Property Rights and the British Diaspora, (Ashgate), 2001, pp. 83-102.

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.