Development of the Rule of Law and Democratic Institutions in early colony of Australia

Australian values based on freedom, respect, fairness and equality of opportunity are central to our community remaining a secure, prosperous and peaceful place to live. Our values define and shape our country and they are a reason why so many people want to become Australian citizens. Our democratic institutions and shared Australian values have created our peaceful and stable society. 

– Australian Government’s Department of Home Affairs: 

Australian democratic institutions are reliant on the rule of law with a parliamentary democracy that are supported by an independent judiciary and a free press. They have not appeared by chance but were developed over more than 200 years on Australian soil and over 800 years from England stemming back to the Magna Carta.

These institutions have not been static nor for the protection of one group of people. They have relied upon brave Australians who have stood up for our values to ensure all people no matter their background, race, wealth, religion or gender are provided with equal and fair access to the protection of the law and their human rights.

Looking at historical case studies of events that happened in the early colony provides an understanding of the development of our rights that we enjoy today. In particular we see:

– Equality before the Law with the First Civil Case between First Fleeters Henry and Susannah Kable;

– The importance of an independent judiciary and free press with the tensions between Governor Darling and Chief Justice Forbes;

– The Importance of the being made by the people after the Eureka Stockade; and

– The key role of Law Reform in protecting Indigenous Peoples after the Myall Creek Massacre.

An Ancient People

Aboriginal and Torres Strait Islander Peoples were residents of Australia long before European settlement in 1788. Their history dates back over 50 000 years ago. They were a culture of many nations, each one with established customs and traditions of their own. They developed lores and social rules that maintained kinship obligation and ancient stories of the Dreamtime preserved the traditional culture and beliefs.  Different and unique language groups identified individual indigenous nations across the land.    Click here for an activity sheet.

Terra Nullius: Gaining Sovereignty by Occupation

The British claimed sovereignty over Australia by occupation, as they believed the land was not ruled by anyone.  The British assumed the land was unclaimed and unknown due to the agricultural practices, its ‘thinly inhabited and  indigenous lores.  Although a term not used at the time, we now describe this as terra nullius (land belonging to nobody).

This basis was the justification for European occupation without a treaty with the indigenous peoples of the land.

In 1992, the High Court of Australia overturned the notion that Australia was uninhabited in a decision known as Mabo.  

Click here to learn more about Terra Nullius, sovereignty and the Mabo Case.

How the rule of law applied to indigenous people in the penal colony

Despite confirmation of the legal status of the Indigenous people by the court in R v Murrell (1836), in practice Indigenous people often remained outside of the law’s protection because they had no ability to gain any benefit or protection from it.

There were three key reasons why the indigenous people often fell outside the protection of the law:

1. The sheer size of the frontier made it difficult to enforce laws adequately and consistently.

2. The settlers viewed Indigenous people through a lens shaped by their own culture and religion.

3. There were significant cultural and linguistic barriers which also impeded Indigenous access to, and knowledge of the law. 

Click here to learn more about how the law was applied to Indigenous People in the early Penal Colony and the reform that took place following the Myall Creek Massacre.

A Convict Problem in England led to the Penal Colony

The American solution for English Convicts No Longer an Option

In eighteenth century England, the punishment for theft was the death sentence.  The 1717 Transportation Act allowed for a reprieve of ‘any persons.. convicted of grand or petit larceny, or any felonious stealing’ and provided an alternative punishment of transportation to American ‘.. to some of his Majesty’s colonies and plantations in America for the space of seven years.’

After the American War of Independence, the Americans refused to accept any more convict transports from England.  With a growing prison population, the British Government needed to find a new location to send those sentenced to transportation. After much debate, they decided to establish a penal settlement in Australia. Lord Sydney was responsible for many aspects of the planning for the new colony.

Case Study: Henry and Susannah Kable

As seen in these secondary source ‘Boarding Passes’ created by the Rule of Law Education Centre for the Lost Parcel Storybook, Susannah and Henry Kable were convicts on the First Fleet.  Both were given the death sentence and then given a reprieve of transportation to the American Colonies.

In 1783, 19-year-old Henry Kable (or Cable), together with his father, broke into a house in England and stole a lot of household goods. Henry and his father were sentenced to death. His father was hung but due to his young age, Henry’s sentence was reprieved to transportation to America for seven years.
In 1784, 20-year-old Susannah Holmes stole linen, clothing and kitchen goods from her employer. She was sentenced to death and her sentence reprieved to transportation to ‘some of Your Majesty’s Colonies or Plantations in America for the term fourteen years.’

Lord Sydney was responsible for planning the new penal colony

In 1780’s, the British parliamentary minister called Thomas Townshend was the Home Secretary in the British cabinet. His responsibilities in this role included immigration and citizenship. He was also given the task of organising the relocation of convicts to other parts of the world, particularly after the option of sending them to the Americas had been stopped due to the War of Independence around that time.

Townshend was awarded peerage for his work and became Lord Sydney in 1783. It is under this title, Lord Viscount Sydney, that the city of Sydney in New South Wales, Australia was named after!! 

Lord Sydney was a man of compassion who felt a great responsibility in maintaining the rights of individuals, regardless of their unfortunate circumstances or position in society. Lord Sydney made two key decisions that impacted the direction of the new colony; the type of rule (whether it was under military rule or with Courts) and the person who would lead the new colony.

i. The Courts would protect the rights of those in the new colony

When preparations were being made for the First Fleet to sail to Australia, Lord Sydney set out to write a Charter of Justice. This Charter would provide a plan that could be used to guide the new society, in accordance with British justice expectations and based on principles from Magna Carta. It established the colony and courts and ensured that all persons in the colony were subject to the law. 

Click here to learn more about Lord Sydney, the man that the city of Sydney is named after.

ii. Arthur Phillip: Compassionate leader of the new colony

This plan was to be implemented by the commanding officer in charge of the colony to avoid a dangerous and lawless society developing from the early days of settlement.

Lord Sydney chose Captain Arthur Phillip to fill the role as the first governor of New South Wales, as he believed he was a man of great integrity and fairness who would be sympathetic to the plight of those being transported.

In the initial days of arrival, the colony was still essentially a prison facility and Captain Phillip looked to the Charter of Justice written by Townshend for guidance and direction. The challenge was great as his officers were dealing with convicts who had endured everything to survive and were afraid of nothing.

Governor Phillip endeavored to administer principles in fairness, justice, and supporting individual freedoms as the fledgling society developed in harsh conditions.

Justice in the new Colony

In 1788 when the English established the penal colony of New South Wales, it was governed in accordance with English Law.

As written in the Commentaries on the Laws of England by Sir William Blackstone; ‘those who were sent to settled colonies carried English law with them as a birthright…’ The laws of England were considered a birthright and inheritance as they provided a protection of rights and freedoms for citizens.

Would convicts in the new colony have their rights protected by the law?

According to English law, people who were sentenced to death were considered ‘dead to the law.’ This means that they no longer had any legal rights as citizens, they could not get married, give evidence in Court etc.  This was problematic in the new colony with so many convicts who had been sentenced to death and then received a reprieve. If they had no legal rights how could they own property, start a business, have a family? 

What we see in the below Kable’s Case study is the rule of law adapting to the new colony to provide equality before the law. Convicts that had no rights when they left England, were able to get married and receive the protection of the law in the new colony. 

Case Study: The Story of Henry and Susannah Kable and their lost parcel

Before leaving England, a large parcel of goods was donated to Henry and Susannah and put onboard the cargo ship Alexander with the First Fleet. The Kable’s were to collect their parcel at the end of their journey from the Ship’s Captain Mr Duncan Sinclair.  When they arrived in Sydney, they asked after their parcel of goods, but it could not be found. The couple sought justice for their ‘lost parcel.’
On 1 July 1788, the Kable’s lodged a civil claim in the NSW Court of Civil Jurisdiction. They asked the Ship’s Captain, Mr Duncan Sinclair, one of the most powerful men in the new colony ‘to show cause why the parcel was not forthcoming, or to make restitution for the value.’ The Case was heard in the NSW Civil Court (which at the time did not have a Courthouse) by 3 independent persons, with eyewitness accounts and statements and they won! 

Case Citation: Cable v Sinclair [1788] NSW KR 7, Court of Civil Jurisdiction

Even though they were convicts, they were treated equally before the law and were able to sue the powerful ship’s Master, Duncan Sinclair, for their lost parcel of possessions.

Additional Protection of Rights in the Colony

Following the Bigge Reports in 1822 and 1823, the British Government decided that the colony of New South Wales needed additional checks on the Governors power and better administration of justice.

The New South Wales Act 1823 (UK) created important institutions within the colony such as the Legislative Assembly, Executive Council and the Supreme Court.  

i. An Independent Judiciary, The  Supreme  Court  of  NSW  and  the  Third  Charter  of  Justice

The New South Wales Act 1823 (UK) together with the Letters patent, formed the legal basis of the NSW Supreme Court known as the Third Charter of Justice.  The establishment of the Supreme Court was for the better administration of justice in the colony and was to become an important check on the power of those in government.

The first Chief Justice of the NSW Supreme Court was Francis Forbes who saw his role as a check on the arbitrary use of power and authority and famously wrote ‘the judicial office stands uncontrolled and independent, and bowing to no power but the supremacy of the law.’

Forbes had an extensive knowledge of the law and was determined to uphold the 1823 NSW Act, even when he encountered pressures from Governor Darling to disregard the law. As Chief Justice, his role was to keep the Governor’s power in ‘check’ and to protect the freedoms of those in the NSW colony. He acted independently of Governor Darling and resisted infringements on these freedoms.   Click here to learn more.

ii. A free press and the establishment of independent newspapers

In 1827, Governor Darling tried to introduce a press licensing law. This would allow the Governor to control the newspapers and to cancel licenses if defamatory material about him or his administration was published. In order to pass the new law, Governor Darling needed the approval of Chief Justice Francis Forbes.

This caused significant tension between the Governor and the Chief Justice.  The Chief Justice refused to pass the law as he believed that even in a colony full of convicts, the freedom of the press was a constitutional privilege which could not be denied. Click here to learn more about the whole story of Checks and Balances: Press Freedom and an Independent Judiciary.

Case Study: Checks and Balances in the early colony

Checks and Balances tells the story of the tension between Governor Ralph Darling, who had been sent to the colony to rebuild it as a place of ‘terror’ for the convicts who had been sentenced there, and Chief Justice Forbes, whose duty it was to administer justice through the courts and ensure that the rule of law was upheld by all… even the Governor! 

This book illuminates the importance of having checks and balances in place (such as an independent judiciary and free press) to restrain the tyrannical ambitions of the Governor and to ensure that the rule of law is universally upheld.

This separation of powers remains paramount, still protecting our individual rights and freedoms, even today.

The Rule of Law Under the first 5 Governors in NSW

The first five governors of New South Wales were instrumental in the development of Australia since Europeans arrived on the First Fleet in 1788. Governors Arthur Phillip, John Hunter, Philip Gidley-King, William Bligh, and Lachlan Macquarie were given the momentous task of establishing and managing the development of a new British society on the other side of the world.

Each one struggled to rule the new colony in a rapidly changing and dangerous environment.

Their challenge was to establish a new colony with the unwanted felons who were rejected by British society.

Click on an image to go to each section

Arthur Phillip	John Hunter	Philip Gidley-King	William Bligh	Lachlan Macquarie

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Test your Knowledge of the early days of the European Settlement

Colonial Capers! is a fun way for your students to develop their knowledge and understanding about the contribution of past people, who have shaped the course of Australian history, and learn about the nature of history from key changes that have occurred in the past. This quiz game can be used as a diagnostic resource to introduce the topic of European settlement, or it can be a useful assessment tool to complement the study of European settlement in Australia.  This resource will enable teachers to play the game with their class. Questions are presented in a way where your students can easily see all components for each question. Answers can be found by discovering clues presented in the question, or are easily identified by using logic.

Click the below images to go to each section:

                  
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