The Evolution of the NSW Judiciary

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By Paul Gregoire and Ugur Nedim

In April 1787, the British parliament passed the New South Wales Courts Act, which created a court of criminal judicature in the soon-to-be founded penal colony on the eastern coast of NSW.

The Act provided that the court was for “the trial and punishment” of “outrages and misbehaviours” deemed “to be treason or misprision thereof felony or misdemeanour.” The court consisted of an appointed Judge-Advocate and “six officers of his majesty’s forces.”

The First Fleet arrived in the vicinity of what is now Sydney in January 1788, proceeding to take over the area. There were between 1,000 and 1,500 convicts, guards and officials on board the eleven ships.

Governor Arthur Phillip was given absolute power of authority over everyone in the colony, but the local Aboriginal people had an issue with this. At the time, there were an estimated 750,000 Indigenous people living across the continent, and the various First Nations lived by their own systems of customary law.

In the eyes of the Gadigal people who lived on the south side of the harbour, they were being invaded by a foreign force after living on the land since time immemorial. Fifiteen months into British occupation, at least 50 percent of the local population had died due to a smallpox epidemic brought by the invaders.

A militarised system of justice

UNSW professor of law Prue Vines explains that the initial penal colony “was run as a military base.” The military government enforced the law with public punishment, such as floggings and hangings.

The first court was presided over by a Judge-Advocate, who was a military officer without any formal training in law. The court heard both criminal and civil cases, and the first hearing was in Sydney Cove on February 11, 1788.

According to professor Vines, the court of criminal jurisdiction consisted of the Judge-Advocate and the six military officers, who served as the jury, “and the governor could exercise mercy.” The criminal court ran until 1823.

The court of civil jurisdiction had “two justices appointed by the governor who sat” with the judge and governor. This civil court continued on until 1814.

The magistracy

A week after the initial court proceedings, the first bench of magistrates – consisting of three men – was convened aboard the HMS Sirius. Most of the work the magistrates initially conducted consisted of allocating work to convicts, and disciplining them if the need arose.

Early magistrates were from the high ranks of society, but they had no background in law. Nor were they paid for their services. “Ex-police were sometimes appointed because they at least knew something about law,” the professor explains.

Some have described early magistrates as glorified justices of the peace. The Judge-Advocate was sent around to attend their sessions “in a sort of informal supervisory capacity.”

A colonial law unto themselves

Lachlan Macquarie was appointed the last autocratic Governor of NSW in 1810.

That year, Macquarie appointed D’arcy Wentworth, as the first paid magistrate in the colony. This led to the practice of paying judicial officers.

“Paying magistrates meant that the magistrate did not have to be” a person of influence “and therefore they could be selected from a broader range of people,” Ms Vines explains. This had the potential for societal change, as magistrates did not simply stick to “the status quo” anymore.

Indeed, the reigning governor of the time caused a scandal by allowing ex-convicts to become magistrates, according to professor Vines.

Under Governor Macquarie, the colonisers were told they could kill local people if they were trying to claim land. Soldiers were permitted to shoot Aboriginal people if they resisted, and the governor ensured there were magistrates to protect the killers.

A Second Charter of Justice for NSW was passed in the British parliament in 1814, abolishing the old civil court. It was replaced by the Governor’s Court, which dealt with claims up to 50 pounds, and the Supreme Court of Civil Judicature, which dealt with claims of more than 50 pounds.

Financing the courts with grog

In 1815, two courtrooms were built by Sydney’s Rum Hospital. The hospital, now Sydney Hospital on Macquarie Street in the CBD, was constructed by three financiers in exchange for the monopoly on rum importation into the colony.

One of the financiers was a doctor named D’arcy Wentworth; the very same man who was appointed the first paid magistrate in the colony.

There was a lack of British money around in the early days, so rum was the main means of exchange.

The only military coup in Australian history occurred in 1808, when the NSW Corps overthrew Governor Bligh, who was trying to outlaw the trade in rum. The ‘Rum Rebellion’ led to a two-year period where soldiers were in charge.

One of the oldest

The Third Charter of Justice for NSW and Van Diemen’s Land was passed in 1823.

It led to the establishment of the Supreme Court of NSW, which had both criminal and civil jurisdiction. The institution of formal, salaried judges was also brought in at this time.

As professor Vines points out, the Supreme Court of NSW is one of the oldest courts in the world, as most of those in Europe have changed since that time. “Judges were appointed to this court and they were people with legal training,” she told Sydney Criminal Lawyers.

The first courthouse was constructed for the Supreme Court in 1827. Situated next to the St James Church in Kings Street, the building was poorly designed and difficult to work in. In 1832, Chief Justice Frances Forbes remarked that a person could not attend the court on a winter’s day without risking illness.

Incidentally, Windsor courthouse was built in 1821, and it remains the oldest running courthouse in the state.

Legal qualifications for magistrates

The appointment of magistrates with no legal qualifications continued on “well into the twentieth century,” professor Vines outlines. In 1955, it became protocol that all newly-appointed magistrates were required to have a qualification in law.

What that meant, according to the professor, was that in the 1970s a lot of magistrates “were often people appointed who had worked in the attorney-general’s department.”

The professor says that newer magistrates “only need to know the outline of the law and spend their time working out what the facts are”, whereas “the higher courts are more likely to be arguing about a point of law.”

“So it is relatively recent that magistrates were appointed from and would be required to have law degrees,” Ms Vines continues.

“… I do think it is a good thing for magistrates to be legally trained,” professor Vines concluded. “Now, of course, most magistrates are former solicitors or barristers.”

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