Although law courts were established when the colony was founded, for the first thirty-five years, the Governors were absolute rulers. The British Parliament could control their authority, but England was 12,000 miles and eight months away by sea: by the time a complaint was heard and decided, nearly two years might have gone by. Phillip’s first and second Commissions, dated 12 October 1786 and 2 April 1787, appointed him as the representative of the Crown in an area embracing roughly the eastern half of Australia together with adjacent Pacific islands.[1] Before he left for NSW, Phillip received his Instructions (composed by Lord Sydney) from King George III, ‘with the advice of his Privy Council’. The first Instructions included Phillip’s Commission as Captain-General and Governor-in-Chief of New South Wales. An amended Commission, dated 25 April 1787, designated the territory of New South Wales as including ‘all the islands adjacent in the Pacific Ocean’ and running westward to the 135th meridian, that is, about mid-way through the continent.[2] The Instructions advised Phillip about managing the convicts, granting and cultivating the land, and exploring the country. The Aborigines’ lives and livelihoods were to be protected and friendly relations with them encouraged, but the Instructions make no mention of protecting or even recognising their lands. It was assumed that Australia was terra nullius, that is, land belonging to no one, an assumption that shaped land law and occupation for more than 200 years
Phillip[3] was responsible solely to his superiors in London and was expected to carry out their orders as embodied in his first Instructions of 25 April 1787, his ‘additional’ Instructions of 20 August 1789[4] and official dispatches. Within these limits his powers were absolute. The Crown vested him with complete authority over the inhabitants and gave him the right to promulgate regulations touching practically all aspects of their lives. He combined executive and legislative functions and could remit sentences imposed by the Civil and Criminal Courts established under a warrant issued on 2 April 1787. Only the crimes of treason or wilful murder were exempt from this provision, but even here he could grant a reprieve while awaiting advice from London. Distance from Britain and the relative indifference of the Home Office towards the affairs of the infant colony enlarged even further the scope of the governor’s initiative and increased his responsibilities.
The New South Wales Courts Act 1787 established a legal system, providing for the establishment of the first NWS Courts of Criminal and Civil Jurisdiction by executive action. [5] It ensured that British law landed with the First Fleet in 1788[6] and that the convict colony had the basis for law enforcement. The Act also allowed for a more ‘summary’ legal proceeding than was usual, adapting court procedures to the conditions of the new convict colony. The Court was established by the Letters Patent of 2 April 1787. [7] The Charter of Justice 2 April 1787[8] provided the authority for the establishment of the first New South Wales Courts of Criminal and Civil Jurisdiction. The Charter of Justice is in the form of Letters Patent providing for a Deputy Judge-Advocate and six court officers to be appointed by the Governor and the establishment of a Civil Court. The Governor was required to give his permission to any death sentence imposed by the Court, and was empowered to give pardons. The Civil Court had the power to deal with disputes over property and had jurisdiction over wills and estates. Although the British intended to transport English law and legal proceedings along with the convicts, in practice there were significant departures from English law in the new and distant Colony. Notably, the first civil case heard in Australia, in July 1788, was brought by a convict couple. They successfully sued the captain of the ship in which they had been transported, for the loss of a parcel during the voyage.[9] In Britain, as convicts, they would have had no rights to bring such a case. In reaching this decision, the Judge Advocate, David Collins, ignored the English common law rule of felony attaint.[10] Under that rule, those who had been sentenced to death for felony were unable to hold property, give evidence or sue in the court. Henry and Susannah Cable had been sentenced to death and their attaint should have followed them for the full period of their transportation. Thus the ambivalent relationship between Australian and English common law began with the very first case. [11]
[1] HRNSW, Vol. 1, (2), pp. 24-25, 61-67, HRA, Series I, Vol. 1, pp. 1-2.
[2] HRNSW, Vol. 1, (2), pp. 84-91, HRA, Series I, Vol. 1, pp. 2-9.
[3] Fletcher, B.H., ‘Phillip, Arthur (1738-1814)’, ADB, Vol. 2, pp. 326-333, Mackaness, G., Admiral Arthur Phillip, (Angus & Robinson), 1937, Thea, Stanley, Arthur Phillip: Australia’s Founding Governor, (Movement Publications), 1985 and Frost, Alan, Arthur Phillip: His Voyaging 1738-1814, (Oxford University Press), 1987 provide contrasting biographical material. See also, Stockdale, John, The voyage of Governor Phillip to Botany Bay: with an account of the establishment of the colonies of Port Jackson & Norfolk Island, 3rd ed., (Printed for J. Stockdale), 1790. See also Clune, David and Turner, Ken, (eds.), The Governors of New South Wales, 1788-2010, (Federation Press), 2009 on Phillip and subsequent governors.
[4] HRNSW, Vol. 1, (2), pp. 256-259, HRA, Series I, Vol. 1, pp. 9-16.
[5] House of Lords Record Office: 27 George III, 1787; HRNSW, Vol. 1, (2), pp. 67-70.
[6] ‘8th February 1788: The criminal court, consisting of six officers of his Majesty’s forces by land or sea, with the judge advocate, sat for the first time, before whom several convicts were tried for petty larceny. Some of them were acquitted, others sentenced to receive corporal punishment, and one or two were, by the decision of the court, ordered to a barren rock, or little island, in the middle of the harbour, there to remain on bread and water for a stated time.’ Ibid, White, John, Journal of a Voyage to New South Wales, pp. 126-127
[7] Letters Patent are written instrument granting authority from the Crown, not enclosed but open to view, with the seal of the sovereign at the bottom. As the provision for establishing a Civil Court had not been included in the Act there was no legislative basis for its foundation.
[8] States Records, New South Wales: SRNSW: X24, HRNSW, Vol. 1, (2), pp. 70-76.
[9] Cable/Kable v Sinclair, July 1788 was the first civil action brought in Australian legal history. In it, two convicts successfully sued the master of one of the first fleet ships for the loss of their baggage on the voyage. In doing so, commentators argue, the colony began with the rule of law rather than the simple rule of the lash. See, Kercher, B., Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, (Federation Press), 1996, pp. xviii-xix and Neal, David, The Rule of Law in a Penal Colony: Law and Politics in Early New South Wales, (Cambridge University Press), 1991, pp. 1-8.
[10] ‘Collins, David (1756-1810)’, ADB, Vol. 1, pp. 236-240. See also, Currey, John, David Collins: a colonial life, (Miegunyah Press), 2000.
[11] On the early development of a legal system in NSW, see, Nagle, John F., Collins, the courts & the colony: law & society in colonial New South Wales 1788-1796, (Indiana Press), 1996.
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