Australia and the ‘rule of law’

Elsewhere there might be the sultan’s caprice, the lit de justice, judicial torture, the slow-grinding mills of the canon law’s bureaucracy and the auto-da-fe of the Inquisition. In England by contrast, king and magistrates were beneath the law, which was the even-handed guardian of every Englishman’s life, liberty and property. Blindfolded Justice weighed all equitably in her scales. The courts were open, and worked by known and due process. Eupeptic fanfares such as those on the unique blessings of being a free-born Englishman under the Anglo-Saxon derived common law were omnipresent background music. Anyone, from Lord Chancellors to rioters could be heard piping them (though for different purposes).[1]

In this stylish statement Roy Porter pointed to the rule of law’s popularity as a rhetorical device in eighteenth century England where it was ‘the central legitimizing ideology, displacing the religious authority and sanctions of previous centuries.’[2] Arising out of struggles between the monarchy, Parliament and the courts, the rule of law sought to protect individual liberty and private property by placing constraints on arbitrary authority. The ruling class used the rule of law ideology to enhance their power, but it also acted as a break on that power. All citizens from the monarch to the poorest citizen became bound by the rule of law and could settle their disputes in the courts presided over by judges, who were independent of manipulation.[3]

Most people in both English society and British colonial settler communities believed that the rule of law also had substantive content and was a highly flexible notion. The list ranged from the inherently legal to the explicitly political. Its meaning depended on who was employing it and for what purpose. In one form or another the rule of law embraced: the right to justice by the judgement of one’s peers conceded in Magna Carta and trial by jury (both elements of claims of an Ancient Constitution); habeas corpus, a protection solidified during the latter half of seventeenth century[4]; freedom from suspension of or dispensation from laws of Parliament secured after the Glorious Revolution of 1688; the independence of the judiciary established by the Act of Settlement 1701[5] but not operative in the colonies until the middle third of the nineteenth century and its corollary, the right to a trial according to law and established legal procedures involving the application of rational principles; and, freedom from intrusion and arrest by the use of general warrants developed by the courts during the mid-eighteenth century.[6] Closely allied and overlapping with the rule of law were a series of ‘constitutional rights’, some of which seemed settled, at least in Britain, such as no taxation without representation and the right to petition the Crown and others protections such as freedom of the press, freedom of association, freedom of assembly, and freedom of conscience.

The ideology and practice of the rule of law were exported to Britain’s colonies. According to the English jurist William Blackstone, writing in 1765,

...if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For the law is the birthright of every subject, so wherever they go they can carry their laws with them.[7]

But, as David Neal has pointed out, in practice this depended on the circumstances of the colony. Neal seeks to discover what the rule of law meant in the particular circumstances of the Australian penal colony of NSW from its foundation in 1788.[8] As convicts, ex-convicts, and their children made up an increasingly large proportion of the population (87 per cent in 1828 and 63 per cent in 1841), British governments wanted liberty to be restricted by their representatives, the governors and that did not augur well for the rule of law. Until 1823, governors ruled in an autocratic manner and had extensive discretionary powers but agreed with the British government that the transported criminals needed to be kept under close surveillance and punished firmly and quickly if they broke the rules.[9] Colonists whether free settlers (the Exclusives) or ex-convicts (the Emancipists), felt they were too closely watched and demanded that the rule of law be recognised as protection against the arbitrary rule of the governor. While the colonists waged their campaign for civil and legal rights, the courts became ‘a sort of broking house of power.’[10] Colonists expressed their opposition to the actions of governors, while governors sought to have their actions and authority legitimised by judicial process. Even convicts soon learned to use the magistrates’ courts for their own purposes.

Neal argues that the political ideas and discourse of the colonists were based on their English legal inheritance as systematised by Blackstone in his Commentaries on the Laws of England.[11] They claimed ‘no more than their rights as free-born Britons, rights guaranteed by the Magna Carta, Habeas Corpus, the Bill of Rights, [and] the Act of Settlement.’ Seeking ‘to forge a new social and political order out of the penal colony’, they demanded an independent judiciary, trial by civilian, not military, jury, and representative government.[12] The first important step in consolidating the rule of law in NSW occurred in 1824 when the newly established Supreme Court began to hear cases. It was staffed by judges appointed in England who supported the principles of the rule of law and were a major counterweight to the power of the governors. The achievement of a nominated legislature, the development of a free press and the introduction of civilian jury trials were also significant landmarks in entrenching the rule of law. But it was not until a partially elected legislature was formed in 1842 that, Neal argues, NSW finally changed from a penal colony to a free society, a situation helped by the ending of transportation to the colony.

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[1] Porter, Roy, English Society in the Eighteenth Century, (Penguin), 1982, p. 149.

[2] Thompson, E.P., Whigs and Hunters: The Origin of the Black Act, (Penguin Books), 1977, pp. 263-264; see also Hay, Douglas, ‘Property, Authority, and the Criminal Law’, in Hay, Douglas, et al, (eds.), Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, (Penguin), 1977, pp. 17-63

[3] According to Neal, the rule of law had at least three elements: ‘general rules laid down in advance, rational argument from those principles to particular cases, and, at least in a developed form, a legal system independent of the executive for adjudication of disputes involving the general rules.’ These elements must be applied in the everyday working of the legal system and not be used by the governing classes for rhetorical effect or only when convenient to their interests. See ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 67.

[4] This right was given legislative recognition in the Habeas Corpus Act 1679.

[5] The constitutional position of the judiciary was established in the Act of Settlement, 1701, s 3.

[6] See Leach v Money (1763) 19 State Trials, 981; Entick v Carrington (1765) 19 State Trials, 1045.

[7] Blackstone, William, Commentaries on the Laws of England, (University of Chicago Press), 1979, Vol. 1, pp. 104-105.

[8] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. xii, 15, 32 and 64.

[9] For the debate on the kind of convicts sent to Australia, see Garton, Stephen, ‘The Convict Origins Debate: Historians and the Problem of the ‘Criminal Class,’’ Australian and New Zealand Journal of Criminology, Vol. 24 (1991), pp. 24-82 and Dyster, Barrie, ‘Convicts’, Labour History, Vol. 67, (1994), pp. 74-83.

[10] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 190.

[11] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. 23 and 25.

[12] See, Blakeney, Michael, ‘The reception of Magna Carta in NSW’, Journal of the Royal Australian Historical Society, Vol. 65, (2), 1979, pp. 124-142.

Policing in Australia: importance of the 1820s

In the early decades of NSW, a decentralised police system was in operation. Lay magistrates in rural areas controlled the police and had discretion to decide ‘what would and would not be policed.’[1] They used their power to protect their class interests and relied upon flogging to enforce order. The assistance of the military was necessary to quell large-scale disorder, but the military were not used for ordinary policing duties. Reflecting the characteristics of the population, most policemen were convicts. In 1823, J. T. Bigge, charged with making transportation more of a deterrent for English criminals, reported to the Colonial Office that police organisation was defective and recommended centralised control rather than retaining local control by unpaid magistrates.[2]

John Thomas Bigge, c1819

Because magistrates were unwilling to relinquish control of the police, a number of changes were made to weaken their power in 1825, creating a system of divided control. The mounted police, composed mainly of soldiers, were formed to deal with bushrangers and Aborigines. Captain F. N. Rossi became the head of the Sydney police, whose existence was made official by the Sydney Police Act of 1833, a statute based on the London Metropolitan Police Act of 1829. In the absence of local government, the Sydney police were required to assume a range of urban functions. Thus, in the 1820s and 1830s, police reform in NSW was a compromise between the English and Irish models, modified to meet the exigencies of a large convict population, the activities of bushrangers, the resistance of the Aborigines and a growing urban population.[3] In addition to the police, overseers, masters, and private informers ensured that the colonists enjoyed ‘a level of surveillance more akin to a penal colony than the society they knew in England.’[4]

Bigge’s report influenced thinking about police arrangements in VDL, the second Australian penal colony, far more than in New South Wales. Governor George Arthur created a more highly centralised policing system and controlled the police, mainly comprised of convicts, through paid magistrates, responsible directly to him. He saw himself as the servant of empire, answerable only to the British government and not local colonists and became the foremost supporter of the benefits of transportation. [5] Feeling that a penal colony was ‘an unnatural condition’ because ‘virtue’ was subordinate to ‘crime’, Arthur believed he had no choice but to rule the colony as a jail. His police reforms and their operation made VDL a more intensively policed society than NSW.

Making order his aim, Arthur expected colonists to forgo their rights and liberties in the interests of making transportation a feared punishment and in exchange for the security of person and property that he provided.[6] The majority of colonists, especially those in the interior, resigned themselves to this policy and were constrained to obey his commands for two reasons.[7] First, they appreciated the security, funded not by local taxes but by the Crown that Arthur provided after years of anarchy. Secondly, given the shortage of free labourers, they feared losing the cheap convict labour that Arthur could withdraw whenever he liked. But those colonists who did not rely on convict servants for their wealth or who had fallen out with Arthur, mainly the residents of the colony’s capital Hobart Town, felt that the benefits of transportation were purchased at too high a price and became hostile to attacks on their liberty.[8]

Sir George Arthur

As its central aim was to strengthen the authority of the governor and enforce order, the rule of law as a protection of free citizens was compromised at all levels of the legal system in VDL. Under Arthur’s autocratic rule, the nominated Legislative Council, the judges of the Supreme Court, paid magistrates and the police generally placed the orderly management of the convict system ahead of rights and liberties. In the courts, colonists contested arbitrary uses of police power and employed the language of the rule of law when arguing for their rights or defending their liberties. But they realised that the paid magistrates gave prime consideration to convict order and discipline and supported police action unless the evidence clearly demonstrated they had acted illegally or arbitrarily.

Police work had an important bearing on whether in practice the rule of law could curb arbitrary power. Not only did the police threaten liberty by treating colonists unequally and unjustly, they also enforced the law, made ‘its orders meaningful’ and constituted its ‘coercive function’.[9] How did the public respond to the introduction of the ‘new police’ in the Australian colonies? Did the police encounter opposition at either an organisational or operational level and if so, by whom and what form did this opposition take? The papers in this section consider how the rule of law was established in Australia, the ways in which the law was enforced by the police in VDL, South Australia and Victoria and how the use of arbitrary power was resisted.

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[1] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 163.

[2] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. 148-149.

[3] Ibid, King, Hazel, ‘Some Aspects of Police Administration in New South Wales, 1825-1851’, pp. 205-30; Sturma, Michael, ‘Policing the Criminal Frontier in Mid-Century Australia, Britain, and America’, in Finnane, Mark, (ed.), Policing in Australia: Historical Perspectives, (University of New South Wales Press), 1987, pp. 15-34; Finnane, Mark, Police and Government: Histories of Policing in Australia, (Oxford University Press), 1994, chapter 1.

[4] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 54.

[5] Report from the Select Committee on Transportation, Together with the Minutes of Evidence, Appendix, and Index, (Irish University Press), 1968, Vol. 2, Appendix, p. 2, Arthur to Howick, 18 February 1832; Chapman, Peter, ‘The Island Panopticon’, Historical Records of Australia: A Documentary Periodical, number 1, (1990), pp. 6-10.

[6] Giblin, R. W., The Early History of Tasmania, (Melbourne University Press), 1939, Vol. 2, p. 629.

[7] Forsyth, W. D., Governor Arthur’s Convict System: Van Diemen’s Land, 1824-36, (Sydney University Press), 1970, pp. 109, 126-129.

[8] Ibid, Report from the Select Committee on Transportation; together with Minutes of Evidence, Appendix, and Index, pp. 117, 225; West, John, The History of Tasmania, (Angus and Robertson), 1971, p. 122; ibid, Giblin R. W., The Early History of Tasmania, Vol. 2, pp. 420-421, 605.

[9] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 143.