Justice System


Of the multitude of court houses constructed in the Australian colonies in the 19th century, some were much more palatial than others; but the most humble were a vast improvement on the earlier places of justice which were at best a room in the magistrate's house and at worst an outbuilding or hut. They proclaimed the status of the towns in which they were located and served to inspire the population with a sense of dignity and awe befitting the authority of the justice system. The business generated by the regular visits of the court was a stimulus not only to local wealth but also to the importance of the town. There was much competition between neighbouring towns to be selected as the location for a proposed court house. Numerous petitions were sent, even from opposing groups within the one town, to promote their vested interests. Once established, they served variously as churches, places of entertainment, venues for public meetings and a focus for the conduct of government business. By providing a community focus, the early court houses gave voice to the people even before the parliamentary system of government evolved fully.

The Yoke of British Justice

We often associate legal decision making with punishment and have empathised with stories of convicts who suffered undue hardship at the hands of British justice. Yet, had we been living in the early isolated settlements of the Australian colonies, we would have been agitating for the presence of a magistrate or police officer to ensure our safety and give us the prospect of a stable future. The British system of justice followed long established procedures and precedents, and was required to be independent of the government of the day; so, when applied in the Australian colonies, it defined them as uniquely British. Many of us find the processes of law neither interesting nor easy to understand, but we can at least gain an understanding of the changes which have evolved in the system throughout our short history.

Most of us find it difficult to appreciate that, within an autocratic system of government, the efficient administration of the early colonies depended, not only on the governor and his immediate staff, but very much on individuals who were prepared to take on legal and administrative duties in an honorary capacity. Life in the early settlements necessitated the enforcement of law and order but the governors, who were commissioned to implement the British system of justice, lacked the infrastructure and experienced people on which the system depended. Because they were responsible for all functions of government, neither they nor their secretaries were in a position to attend to individual disputes or the problems of remote areas. So they resorted to an old British tradition of Justices of the Peace (also known as magistrates), and appointed citizens who were willing and able to fill these honorary positions.

The office of Justice of the Peace had been established in England in the 14th century and had evolved over time to meet the changing requirements of the law. The Justices of the Peace had power to arrest, bail, handle riots and perform the functions which our local government agencies perform today. They even acted as coroners, settled small debt disputes, and handled deceased estates. They held courts of Petty Sessions on a regular basis with authority to hear criminal cases; it is interesting that this traditional practice was not encoded into law for the colony of New South Wales until 1825. The roles of Justices of the Peace were vital in the day to day development of the growing settlements of the Australian colonies. Fortunately these officers were prepared to work not only in an honorary capacity, but also alone in outlying areas.

The second position created to relieve the pressure on the governor was the Government Resident. This person represented the governor in outlying areas and attended to all the official duties which were required in the district. He sent regular inventories and reports back to the Governor’s Secretary so that the business of government could proceed as smoothly as possible. Although the Government Residents received a salary, the responsibilities and pressures of the duties far outweighed the monetary rewards. So it is an irony that, in colonies controlled by autocratic governors, development was possible only through the goodwill and hard work of community minded citizens who were prepared to undertake tasks of government. The position of Government Resident continued to be required in outpost settlements until the end of the century.

A larger than life figure appointed to this position in the Northern Territory in 1890, was John George Knight. He was a man of many talents, particularly as an architect, and after an illustrious career in private practice and service in the Victorian Public Works Department, he left his wife, their seven children and twin babies in Melbourne to move to Palmerston (Darwin) in 1873. At this time the Northern Territory was administered by South Australia, so the Resident was responsible to the South Australian parliament. In addition to his duties as Secretary to the Government Resident, he was the accountant, architect and supervisor of government works. In 1875 he was retrenched because of government cutbacks, but in 1876 he returned to the Northern Territory as the Warden of the Goldfields. In 1884, when the responsible minister was asked by members of the South Australian parliament to report on the duties and remuneration of Mr Knight, he listed - the Clerk of the Local Court, Deputy Sheriff, Government Statist, Clerk of the Licensing Branch, Crown Prosecutor, Special Magistrate, and Chief Warden of the Goldfields, all on a total salary of 535 pounds. Knight had no legal training but he was considered a fair, if sometimes lenient, prosecutor, particularly towards the Chinese. He also took a great interest in Aboriginal people, and organised an exhibition of their art work in Adelaide in 1887.

In 1890 he was appointed as Government Resident and Judge on a total salary of 850 pounds a year. This was another economy drive by the South Australian government which had paid the previous Resident 1500 pounds plus an allowance, and the Judge 1000 pounds plus an allowance. When he died in 1892, aged 72, a Melbourne newspaper, the Argus reported:

Eminently social and sociable in his habits, and particularly adapted to the life of a great city, his voluntary exile to a remote settlement, in a tropical climate, where there was little society, and no scope for the exercise of some of the best faculties of his active and inventive mind, appeared to be quite inexplicable to his old friends in Melbourne. But when interrogated on the subject...he replied that he was quite happy in his isolation; that he liked the place, climate and people. 1

Men such as John Knight were pioneers in the frontiers of government administration. Their responsibilities encompassed the rigid traditions of the British legal system and the day to day vagaries of local administration. As the public service evolved, the role of Government Resident declined, and the demarcation between the judicial and executive functions of government became practicable.

Police Force

The delivery of police protection was very rudimentary in the early days: Governor Phillip appointed unpaid watchmen to patrol the settlement in 1789. The number of watchmen increased as other areas around Sydney were settled, and a military officer was given the responsibility of their supervision. Governor Macquarie, who arrived in 1810, set aside funds to ensure a more efficient system which provided a military patrol for Sydney. He appointed D’Arcy Wentworth, the acting principal surgeon and treasurer of the fund as superintendent of police. An Act of 1833 made provision for the appointment of certain Justices of the Peace as Police Magistrates to appoint and supervise police and enforce the law. Appointments were made in Bathurst, Windsor, Maitland, and Paramatta in 1838. The expansion of settlement, discovery of gold, and the increasing threat of bushrangers in New South Wales necessitated dramatic reforms in the following twenty years. The police force was placed under the control of an Inspector General, and became independent of the judiciary.

Court System

The European population of New South Wales in 1788 consisted of military personnel and convicts who were subject to the governor. Governor Phillip established two courts; the Court of Criminal Jurisdiction and the Court of Civil Jurisdiction, appointing David Collins, a military officer with no legal training, as Judge Advocate. In this office Collins presided over the Court of Criminal Jurisdiction with six military officers, and over the Court of Civil Jurisdiction on which he was assisted by 'six fit and proper persons' appointed by the Governor. As convicts did not have the right to sue, the second court did not become effective until the number of free settlers increased. The Judge Advocate's position was onerous because of his numerous roles: he acted as prosecutor and keeper of court records as well as assisting with the case for the defence. In addition to the court officials, Phillip appointed Justices of the Peace to assist with the maintenance of law and order. There were 26 magistrates in New South Wales and eight in Van Diemen's Land by 1821.

The court system as we know it today took many years to evolve, the first changes becoming necessary as the number of free settlers in New South Wales increased. In 1814 the British parliament passed the Second Charter of Justice which established the Supreme Court and the Governor's Court. The Supreme Court, which was to be headed by a judge sitting with two magistrates selected by the governor, was to administer the Common Law and Law of Equity of England; but it did not operate for two years because Judge Jeffrey Bent refused to sit with the nominated magistrates, despite their legal experience, because they had been convicts. Proceedings got under way in 1817 when another lawyer, Barron Field, replaced Bent as the Judge and two free salaried lawyers were sent from England.

By 1823 there were further demands for a greater degree of self determination. The Third Charter of Justice replaced both the previous courts with a new Supreme Court, which convened in the school house adjoining St. James Church until the new court house was completed. It had jurisdiction in civil, criminal, equity and ecclesiastic matters, and was staffed by a Chief Justice with three judges and administrative staff. The judges, who were subject to dismissal by the Crown, received fixed salaries which they could not augment by other means. Prosecutions were to be made by the Attorney General. Common Law actions were heard by a judge and two assessors (both JPs), who could be replaced by a jury of twelve if both parties agreed. In criminal proceedings, the cases were to be heard by a judge and seven commissioned officers of the armed forces. It was not until 1830 that an Order-in-Council authorised the change from military to civilian jurors.

The 1823 Charter formally instituted Courts of Quarter Sessions, which were given jurisdiction in criminal matters and affairs of convicts. They were convened by two or more magistrates quarterly, and, if convened at other times, were referred to as General Sessions. Following this Charter, the legality of magistrates (JPs) sitting alone in Petty Sessions was questioned and so an Act was passed in 1825 to clarify the situation.

The introduction of civilian juries created interesting situations. By the 1830s increasing numbers of convicts were being emancipated, and many had acquired sufficient means and property to qualify as jurors. This led to accusations that they were biased in favour of the accused, who might be a friend or acquaintance. In 1838 the London publication, the Quarterly Review, recounted the experiences of a highly respectable juryman in an article on New South Wales and transportation:

On entering the room in which they were to consider the verdict, one of the jurymen laid himself on the table with his arms folded, saying, ‘Well, my mind is made up.’ Another followed, and lay down on the floor, saying, ‘My mind is made up.’ For about twenty minutes, several discussed indifferent topics; and when they were invited by their foreman to enter on the business in hand, they answered, as before, that their minds were made up. One said he knew the prisoner’s father - one his mother - and a third had known the prisoner himself from a child. The narrator and two other persons being persuaded of the prisoner’s guilt, the jury remained locked up all night, during which there was much foul and disgusting language; and in the morning, rather than continue in such an association, the three jurors who were adverse to the acquittal gave way.2

The article gave further evidence of the reluctance of free settlers to sit on juries with certain ex-convicts:

A synopsis of the jury panels in the Supreme Court, from November 1833, to February 1836 shows that, of 1289 persons who served during that period, there were of this class, no fewer than 322, being just one in four... In fact, though the proportion of convicts to free settlers, on the list of persons qualified by property to be jurors, is only about two to twelve, the proportion actually empanelled is vastly greater; because the respectable inhabitants avoid, in every possible way, the annoyance of serving on juries with those people. 3

Despite the examples of blatant bias quoted in the article, the judges were said to be satisfied with the verdicts with only a few exceptions, and the process of time eliminated the problems of prejudice against ex-convicts.

Van Diemen’s Land

The Supreme Court in Van Diemen’s Land was instituted under the same arrangements as on the mainland. Following the arrival of Judge Pedder from England, the first session was held on 24 May, 1824. Six military officers served on the jury and the position of Attorney-General was filled by Mr Joseph Tice Gellibrand. The colony separated from New South Wales in 1825, and in 1827 Lieutenant Governor Arthur divided it into Districts, each of which was given a stipendiary justice, police clerk and staff, and a small detachment of soldiers. By the 1870s the courts exercised jurisdiction as Courts of Request, Courts of Bankruptcy, and Courts of General Sessions. Possibly because of its size, and because its population and economy did not expand as much as other colonies, Tasmania has a two rather than three tiered court system today.

Port Phillip District

The Port Phillip area had been attracting settlers also, and by 1835 it was necessary for the New South Wales authorities to provide a visible presence there. The following year Captain William Lonsdale was appointed as Police Magistrate and in 1838 an appointment was made to Geelong, followed by Portland in 1840. The police magistrates in outlying areas of New South Wales not only supervised the constabulary but also acted as a vital link with the central administration, passing on first-hand information as well as statistical returns. Their duties extended to the distribution of Crown land and the construction of public works. Regular sittings of the Court of Petty Sessions began in Melbourne in 1838, but civil claims and serious criminal cases were heard in Sydney in the Supreme Court or Quarter Sessions. As in other areas, the administration could not have survived without the honorary JPs.

A Court of High Jurisdiction had been established in the Port Phillip colony by July 1842. Governor Gipps wrote to Lord Stanley, the Colonial Secretary in Britain, to inform him that Judge Willis had been transferred there from Sydney with payment of expenses as an inducement, explaining that the judge would not have transferred without such financial assistance. This arrangement, he wrote, helped him to settle "the dissension which had unfortunately arisen on the bench in Sydney."4

Judge Willis was the subject of another memorandum in November, when Gipps informed Stanley of "the want of moderation and decorum" in speeches delivered from the bench by the judge, who embellished his addresses to the jury with statements on the need for a government bank, as well as problems causing the unemployment of convicts, stemming from insolvency proceedings and speculation by government officials.5

Swan River Colony

Because Western Australia and South Australia were settled by free immigrants, they were entitled to the rights enjoyed by citizens under English law, including trial by jury. In 1829, when Lieutenant Governor Stirling arrived to set up the new colony on the Swan River, he appointed honorary JPs, two to the Fremantle area, and three apiece to the Perth and Canning districts. They held Petty Sessions once or twice a week and Quarter Sessions four times a year. Stirling also appointed fourteen honorary constables, as well as sheriffs and an Attorney-General, on a salary of 200 pounds to prosecute for the Crown and act as parliamentary draftsmen. The other salaried officers were Government Residents, who were sent to newly developing and often very isolated areas, to act on the governor's behalf. For an annual salary of 100 pounds, they performed the duties of the governor and were appointed as JPs, enabling them to act as Chairmen of the Courts of Quarter Sessions and General Sessions. The Government Residents played a vital role in the development of Western Australia.

The Civil Court of Western Australia was established in 1832. Either party in a case could request a jury in disputes involving amounts of more than twenty pounds, provided they paid for the service. An article in the Perth Gazette and WA Journal of 13 April 1833 stated:

The establishment of a Court of Civil Jurisdiction in this Colony was hailed with general satisfaction, but has tended to the diffusion of a spirit of litigation amongst us, which is painful to see growing with our growth. 6

The writer suggested he preferred a spirit of goodwill and co-operation. The Court of Quarter Sessions continued to hear criminal cases, sitting in Fremantle until it moved to the new court house in Perth in 1837. A church had served as a court house in Perth until the specific building designed by Civil Engineer Henry W. Revely was completed in 1836. This building, which still stands, not only accommodated the Quarter Sessions, but acted as a church and a school as well when required.

The extent to which the justice system depended on the goodwill and dedication of a select body of citizens is demonstrated in the following correspondence to the Colonial Secretary from two Resident Magistrates in Western Australia as late as 1867. On 2 September the Geraldton Resident Magistrate wrote:

I have the honour to call your attention to the Greenough Local Court being held on the first Wednesday of the month - this would be very inconvenient to those who have to attend Quarter Sessions and also deprive me of the assistance of the Greenough Resident, without whom, it sometimes occurs the Session could not be held - he being the only Magistrate beside myself present.7

On 29 January the Resident at Newcastle had requested a change in the day on which the Local Court would be convened on the grounds that considerable inconvenience is at times felt from the present court days being the same as those on which the mail arrives, and latterly the English mail has also arrived on that day.

The fact that the Postmaster of the district and the clerk of the Local Court being one and the same person will, I feel confident, make the inconvenience apparent.8

South Australia

Before any settlers arrived in the colony, the Board of Commissioners in London appointed Sir John William Jeffcott to the position of Judge, and Mr. Charles Mann to the positions of Advocate General and Crown Solicitor. As it happened, Jeffcott arrived after the initial group of settlers who accompanied the Governor and his Colonial Secretary, Mr. Robert Gouger. The Cyclopedia of South Australia tells the intriguing story of Mr. Gouger. In his capacity as Magistrate, he set himself up in a tent known as “Government Hut” and announced Acts by displaying them on the tree opposite. One of the Acts, supposedly passed at a meeting of the Legislature, established Courts of General and Petty sessions, and another determined qualifications for jurors. Authorities in Britain took a dim view of proceedings, maintaining that, as free settlers, the new arrivals were subject to the laws of the motherland and enjoyed the rights of British subjects, so the only Act written into the Statute-book was the one which established the Supreme Court. Following the arrival of Judge Jeffcott, a Court of General Gaol Delivery was established and, while charging the Grand Jury in the first case, the judge took the opportunity to remind the colonists of their privileges:

You are aware that in the neighbouring colonies it has been inexpedient to concede the full rights of trial by jury. The reasons which have been considered as justifying such restriction elsewhere do not, however, happily, prevail here; and I feel no slight degree of satisfaction in being able to congratulate the free inhabitants of South Australia ... in being able to claim as their birthright the full and unrestricted privileges of the British Constitution, amongst which not the least valuable is ... trial by jury.9

As early as 1837, a Local Court of Appeal was established to hear appeals on decisions of the Supreme Court. This court consisted of the Governor and all members of the Executive Council except the Advocate General and Crown solicitor. As in the other colonies, the justice system depended on JPs, six of whom were appointed on settlement. As the colony developed, Courts of Resident Magistrates, presided over by a paid Magistrate or two honorary JPs, were established in the local areas. A Police Magistrate was appointed in 1843.

Moreton Bay

At much the same time as in South Australia, the justice system was being established in the Moreton Bay Colony. Captain William Wickham was appointed as Police Magistrate in 1842, and from 1853 he served as Government Resident until separation from New South Wales. The JPs held Courts of Petty Sessions which were extended in 1847 to Ipswich, the Darling Downs and the Armidale area.

Adapting to Change

The system of justice services continued to change and adapt to new developments. Transportation to New South Wales was abolished in 1840 and Van Diemen's Land in 1853. New South Wales, Victoria, Tasmania, South Australia, and Queensland were declared self-governing colonies between 1850 and 1857. The population was increasing dramatically and judges were travelling on circuit to service local demand. This led to a burgeoning of court house construction in country centres.

Justice System Today

Each state has evolved its own court system, most following the three-tier system with the Supreme Court at the top and Magistrates' Courts on the lowest level. A government department supervises the system as a whole but procedures and day-to-day administration are the responsibility of the judiciary and staff. Individual state systems differ in their application of civil and criminal jurisdiction and in the way appeals are organised, but all maintain an avenue of appeal to the High Court which was set up under the Federal Constitution.

The Supreme Court is located in the state capital but may have court houses in larger regional centres. The intermediate courts, known as District Courts, except in Victoria where they are known as County Courts, are located in centres which serve a large population. The judges and staff of both the courts go on circuit to serve more isolated areas. Magistrates' Courts are found in the major cities, metropolitan areas and regional centres.

Magistrates today no longer act in an honorary capacity and most are fully trained lawyers. They have the power to hear minor civil and criminal matters without a jury. They hold committal hearings in matters relating to serious criminal charges to determine whether there is a case to answer, and, if so, the case proceeds to a higher court. The Childrens' Court and the Coroner's Court are both presided over by magistrates. The role of Justices of the Peace has changed dramatically, in that their duties have declined and their primary role has become the witnessing of documents and signatures. Their responsibilities differ from state to state but most states have introduced training courses for them.

Despite changes in the delivery of justice, the 19th century court houses are still serving the public, and stand as monuments to the civic pride of local communities, as well as their dependence on the enforcement of law and order.


Section 72 of the Federal Constitution states:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other justices, no less than two, as the Parliament prescribes.

The High Court, located in Canberra, was established with Queensland’s Sir Samuel Griffith as Chief Justice in 1903. It acts as an appellant court to hear appeals on decisions of the state Supreme Courts. Originally it had the power to allow appeals to the Privy Council in Britain in certain cases involving interests of members of the Empire. Appeals to the Privy Council from state jurisdictions were preserved under state constitutions. The right of appeal to the Privy Council was abolished in 1975. On Federation the High Court was given the power to interpret the Constitution, and this process has resulted in judgements which have defined the powers of the federal and state governments. In addition, the court has made decisions in relation to implications of Acts of Parliament, such as the Native Title legislation of the Keating Labor government.

In order to implement powers conferred by the Constitution, the Commonwealth government established the Federal Court to hear cases related to industrial matters, trade practices and bankruptcy, and act as a court of appeal. In 1975 the Family Law Act was passed to implement substantial reforms to divorce proceedings and establish a new Family Court. Commonwealth courts have registries in all the capital cities, and where appropriate the state Supreme Courts may hear cases which are within the Commonwealth jurisdiction. The High Court sits in Canberra in its very prestigious building which attracts thousands of visitors each year, and sits in some capital cities for short periods.

In 1998 the Chief Justice expressed concern that the position of the bench was being undermined by undue criticism of some of its decisions, especially by politicians. Some members of parliament were concerned that the court was using its power to interpret laws in such a way that it was effectively making new laws. As the elected representatives of the people, the politicians maintained their sole right to make laws and to ensure their enforcement according to the spirit in which they were made. Nevertheless, the people have the right to challenge laws which they consider unjust. The court system provides avenues whereby their voices are heard.


1 Argus, 12 January 1892.

2 Quarterly Review, vol. LX11, no. CXX1V, pp. 492, 493.

3 ibid pp. 492, 495.

4 Historical Records of Australia, series 1, vol. 22, p.144

5 ibid. p.351.

6 Perth Gazette and WA Journal, 13 April 1833.

7 C.S.R. vol. 600/136.

8 C.S.R. vol. 601/4.

9 Cyclopedia of South Australia, vol. 1, Cyclopedia Co., Alfred G. Selway, Adelaide, 1907, p. 235.


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