Vol. 15, No. 1. February 2003 ISSN 1033-470X The origins of a free press

Chief Justice Spigelman's inaugural Australian Press Council Address discussed the clash between authorities and the press in NSW in the 1820s. JACK R HERMAN reports.

he NSW Chief Justice, the The official organ, The Gazette was the assertion of a clear separation Hon. James Spigelman had been joined by The Australian, first of functions between the judiciary and AC, delivered the published (by William Charles the executive. "It was the clearest inaugural Australian Wentworth and - both possible assertion of the application Press Council Address on barristers) in 1823 and by The Monitor, of the rule of the law to the colony and 20 November in the Banco ownedCourt ofand published by Edward Smith of the independence of the judiciary", theT NSW Supreme Court, before an Hall, an ex-missionary with a varied said Spigelman. audience of about 150. The Address is past. The Australian 's first editorial By way of further background to the to become an annual event, with the stated its approach: clash between the governor and the Council inviting a prominent speaker A free press is the most legitimate, and, at press, with the Supreme Court in the to present a talk related to the freedom the same time, the most powerful weapon middle ("the most serious conflict and the responsibility of the press. that can be employed to annihilate influence, between the judiciary and the The Chief Justice's address was frustrate the designs of tyranny, and restrain executive that has ever occurred in entitled, The foundations o f the freedom the arm of oppression. Australian history"), Chief Justice o f the press in Australia, and concerned Governor Darling had a low opinion of Spigelman outlined how trials were events, mainly in Sydney in the 1820s the publishers of both newspapers, conducted in the 1820s. "There was that set the scene for the clashes over Wentworth and Wardell for their provision for juries at the time, but the succeeding two centuries between political program and Hall for his such juries, far from being constituted government and the press, over its evangelical zeal. by peers of an accused, were responsibility and between the constituted by seven military officers executive and the judiciary over the Spigelman noted that, "The day Sudds who sat in uniform." Darling was the press's freedom. died, the Australian commenced its coverage with a blistering attack on the commander of the troops who Spigelman started with the tale of two Governor, the system that permitted constituted any jury and the instigator privates, Joseph Sudds and Patrick action of this character to occur and of m any of the libel actions they ruled Thompson, who, in 1826, stole some raised serious doubts about the legality on. goods in the expectation that they of the Governor's conduct. The Monitor, Until this point of time, Darling had would be , a fate they which had long campaigned against thought preferable to continued allowed the press to develop without the brutality of the treatment of convicts, interference from the executive. But, service in the army. also took up the cause." General Ralph Darling, Governor of in the wake of the Sudds Thompson NSW, and personifying executive At this stage the governor belatedly affair, the conflict developed, government in those days before any sought legal advice, including an "[fjuelled ... by the poisonous representative assembly, set aside advisory opinion from the Supreme banalities of small town politics ... the court's sentences on the pair and Court, then only two and a half years [Nevertheless [there were] ordered their flogging, to be followed old. Sir was the Chief fundamental principles at stake by assignm ent to a chain gang. Sudds Justice and in his advice (given jointly involving the rule of law, the was critically ill at the time (unknown with another Justice) concluded, in independence of the judiciary and the to the governor) and died five days Spigelman's words, that "Darling had freedom of the press. Within a few after the punishment was inflicted. in effect set aside a sentence and imposed years these principles were confirmed The incident was reported stridently a new sentence by executive fiat. This in a manner and with a force of which by the then new, independent was the assumption of a judicial role." we remain the beneficiaries to this newspapers of the colony. The underlying basis of their opinion day." 2 Australian Press Council News, February 2003

Spigelman outlined how, in England, the political use of By the laws of England, the right of printing and publishing belongs actions for libel was decisively wound back by the enactment of common right to all His Majesty's subjects, and may be freely of Fox's LibelAct of 1792 which restored the general issue to exercised like any other lawful trade or occupation. So far as it becomes an instrument of com munieating intelligence and expressing the jury but, in NSW, the peculiar composition of the jury opinion, it is considered a constitutional right, and is now too well was such as to encourage politically motivated libel actions established to admit of question that it is one of the privileges of to proceed. Within a few years there would be a steady a British subject. stream of such proceedings. Sir Francis Forbes went on to reject the provision for a In October 1825 the Attorney-General Saxe Bannister had power to revoke a licence, on the basis that it empowered initiated a libel action against The Sydney Gazette which the Governor to revoke a licence without giving a hearing been dismissed by the jury. Forbes' summing-up was and, indeed, to do so in circumstances where he would be noteworthy, said Spigelman, especially for this passage: a judge in his own cause.

It is, however the right of the public to discuss the acts of a public Spigelman noted, "In this Newspaper Acts Opnnion, as in his officer, provided it be conducted within the legitimate bounds of judgments, it is noticeable that Chief Justice Forbes felt fair discussion, but if, on the contrary, it degenerates so as to quite comfortable with a discourse employing the impute bad motives and wicked conduct, it is then no longer fair, terminology of'rights'... Over the course of the nineteenth it is libellous. century common lawyers stopped using the language of Darling, who regarded any opposition as insubordination, rights, to the extent that the discourse has only been revived proposed legislation which would establish a licence system in common law countries in recent times by means of the for newspapers, provide for the forfeiture of a licence upon adoption of international instruments, the provisions of conviction for any blasphemous or seditious libel and which can be traced back, historically, to seventeenth and confer on the Governor an unconfined discretion to revoke eighteenth century British texts. a licence. A second Bill would impose a stam p duty on "To a narrow-minded military man like Darling, talk of newspaper sales. rights was poppycock. Forbes' rejection of his plans created Under the Act, legislation required a a decisive and irreparable conflict between the two men." certificate from the Chief justice to the effect that the The second piece of legislation which Darling proposed legislation was not repugnant to and was consistent with was the imposition of a stamp duty. At first, Forbes indicated the laws of England. Despite the fact that Chief Justice an intention to issue a certificate but the printed form did Pedder of the Supreme Court of Tasmania had certified not contain the precise quantum, but it was claimed that the similar legislation, Forbes refused to certify the crucial amount of 4d had been inserted in pencil on the text which provisions of the Bill. He rejected the prior restraint of a Forbes had approved. Forbes took a month to state that the licensing system for newspapers. He said: Act, which had been proclaimed, did not have a valid certificate. Forbes indicated that the licensing Bill, which he had refused to certify, was intended to silence the opposition newspapers. He characterised the stamp duty Bill as a measure "to effect the same end by secret and disguised INSIDE THIS ISSUE means". Chief Justice Spigelman also introduced Justice James • The origins of a free press 1 Dowling who would, in due course, serve as the second Jim Spigelman's 2002 Press Council Address Chief Justice of the Supreme Court. He was of an altogether different disposition to Forbes, insisting on greater formality • In pursuit of a free press 5 in his courts. Dowling, the son of a press reporter, who had Katrine Narkiewicz comments on the Address himself reported on Parliament before being called to the • Press Council News 6 bar in London, would not prove to be as sympathetic to the News and information about the Prize; changes on press as Forbes. the Council and a current vacancy; the 2002 Address; Spigelman continued, "With the primary provisions of his change in Principle 6: submissions on a terrorism legislative attack in tatters, Darling turned to the use of Bill and a Commons' inquiry; and mediated prosecution for libel as a means of controlling the press. ... complaints. Such a course was reinforced by that part of the legislation • Profile 10 which Forbes had accepted would not be repugnant to the laws of England and for which, accordingly, he issued a Deb Kirkman interviews Chris McLeod certificate. The new Act required any newspaper to identify • Press Council Adjudications 12 its ownership. Further, it conferred on the Court a discretion Rulings from November and January to order banishm ent after a second conviction for seditious or blasphemous libel." • About the Council 16 The first prosecution for seditious libel was taken against s______* Wardell for an article in The Australian containing a Australian Press Council News, February 2003 3

defamatory attack on the Chairman of the Court of Quarter According to Spigelman, the next phase of confrontation Sessions about the way he had conducted a trial. It was between the executive and the press began in church. dismissed on technical grounds due to the incompetence of Archdeacon Scott, head of the Anglican Church, was a the Crown Law officers laying the charge. In September Government House insider. The M onitors editor Hall was 1827, Wardell was back before the Court on a charge of a religious man, an ex-missionary. Because of its proximity : seditious libel of the Governor himself. The case ended in to Darling's pew in St James' church, the Archdeacon a hung jury. A third prosecution of Wardell again alleging locked the pew which Hall rented. This led to a piece in The libel of the Governor also resulted in a hung jury. The Monitor in July 1828, attacking Scott. Hall wrote: outcomes of the trials were fascinating, especially This is the age of cant - cant political and cant religious. Thus we considering that Darling was the jurors' commander. In have Ministers of Jesus Christ thrusting their parishioners out of part, thehungjuriesresulted from "thefavourable directions their pews, and then administering the sacrament. given by Forbes in his summing-up to the two juries". In subsequent civil litigation Hall would, eventually, be As a result of the three failed prosecutions, there were no vindicated. But an initial action in trespass against him was | such proceedings during 1828. successful. Nominal damages of one shilling were awarded. When Hall proceeded against the Archdeacon for trespass, At the conclusion of the two trials, Chief Justice Forbes and he was awarded damages in the amount of twenty-five J ustice Stephen wrote a joint letter to Darling on 31 December pounds, plus costs. Hall's attack on the Archdeacon in the 1827, in part criticising "the semi-official Sydney Gazette, M onitor extended to Scott's attitude to religion, his suggesting that its biased reporting of the trials constituted involvement in politics, his bias against and an improper attempt to put pressure on the Court, the allegation that the Archdeacon "was not a man of particularly the jury, reported Spigelman. "Referring to the peace". Gazette as a 'Government paper', their Honours suggested that once the Attorney had instituted the proceedings such Hall was prosecuted for criminal libel before Judge Dowling a publication should have refrained from publishing and a military jury. He conducted his own defence, relying material which might prejudice the case. There seems little in part on the fact that the Archdeacon was a public figure doubt that the Sydney Gazette was seeking to put pressure on a government salary. Anticipating New York Times v on the military officers of the jury." Sail man, Hall argued:

The judges also criticised the independent press criticism of A public officer was public property, and he must submit his public the press. Before a case in which Wardell and Wentworth actions to the test of public criticism. j were seeking to take proceedings for criminal libel against Hall would later complain bitterly about judicial bias in the j the Colonial Secretary for certain official publications in the summing-up. Says Spigelman: "There is little doubt that | Sydney Gazette, the said: the summing-up was not as favourable as Forbes would probably have given. Specifically, there was no indication We avail ourselves of the first opportunity which has been afforded us, of expressing our entire disapprobation of the style and manner to the jury from the bench that they should set aside their of discussing public measures in this Colony. It is impossible to say military status and act as if they were jurors in England, thatthe press has nottransgressed the bounds of fair and temperate although Dowling would give such a direction in subsequent discussion ... cases. The tone of Dowling's summing-up was clearly in Spigelman noted, "Forbes was increasingly disturbed by favour of conviction. He suggested that, as a minister of the tone and content of the press which he described as ... religion, the Archdeacon was particularly vulnerable to "licentious". However, it is clear that he had a strong belief any libel which lessened his character; that the press was in the role of vigorous public debate. ... Nevertheless, at entitled to liberty but not to 'licentiousness'; that a 'candid first, and to substantial degree throughout, he was a and temperate discussion' of public affairs was acceptable; champion of freedom of the press. I would not wish to but that public figures need to be protected from 'shafts of create the impression that Forbes partook in anything like malice' and from 'personal vituperation'. first amendment jurisprudence." He quoted one of Forbes' "The issues raised are with us still," said Spigelman. extra-judicially writings: Hall was convicted. In sentencing him, Dowling observed ... A free press is not quite fitted to a servile population; it is that the press of the colony had been guilty of excesses excellent, indispensable in a free state because of its tendency to against which no action had been taken. He expressed in counteract that eternal propensity of our social natures to make slaves or dupes of one another, but for that reason perhaps, it is not the name of "the Court" a "deep sense of pain and regret suited to a state of society, where one half of the community are that so valuable an organ of public welfare should have worked in chains by the other; the direct tendency of the press is, been abused". in short, to equalise mankind; and the direct policy of our little state Further libel actions emerged in 1829 when the Sudds is only an enlarged prison discipline; the first is to set all free; the last to hold one half in servitude ... [I]f you take away the freedom Thompson affair was suddenly revived. The semi-official of public opinion upon matters of government, you take away a legal Sydney Gazette published documents with the assertion right; necessity you will say justifies it; then the limit of that that they cleared Darling. This infuriated The Australian justification is the necessity which compels it; it should go no and The Monitor. The new owner of The Australian, Attwell further . Hayes, wrote in an editorial: 4 Australian Press Council News, February 2003

... We can never believe and affirm that the author and ostensible disallowed the NSW Act to make banishment mandatory. executor of Sudd's punishment, and which terminated in his death, Darling was criticised in dispatches from London for is a fit person to rule over a British Colony. allowing the situation to get out of control and, specifically, In the proceedings for seditious libel, Hayes was represented for seeking to interfere with free speech to a degree now by W C Wentworth. The trial proceeded before Mr Justice regarded as unacceptable. Any proceedings against the Dowling and a military jury. "On this occasion," noted press should be, according to the Secretary of State for the Spigelman, "Dowling gave a balanced direction to the jury, Colonies, noting their peculiar position as military officers. The confined, underthe pressure of extreme necessity, tothe occasional Australian newspaper, itself, described his summing-up as exigency of some particular case. 'a most luminous and impartial charge' and said that the In February 1831, Darling released Hall from prison, two finding of guilty had astonished most people. years early. When Darling's six year term expired, his The Full Bench of the Supreme Court heard an objection to appointment was not renewed and he left Sydney on 22 competency of the jury. Forbes CJ and Dowling J, with October 1831. Hall announced the event in The Monitor in Stephen J dissenting, rejected the attack and recorded a large capitals on its front page: conviction. Hayes spent a period in prison, but his fine was HE'S OFF! paid by public subscription. Throughout his six months THE REIGN OF TERROR ENDED. imprisonment, Hayes continued to edit The Australian. A few years later, in 1835, when Sir Francis Forbes had to This prosecution was followed by what the current Chief leave the Colony, not least for his health, the then new Justice calls, "a systematic campaign launched against Hall Sydney Herald poured scorn on the proposal that a public of The Mont to /'. By the end of 1829 he would be convicted meeting be held to commemorate his contribution. The on six separate charges. These included seditious libel of Herald proclaimed: the Governor; and criminal libel of the commandant at . On both occasions, the jury were strictly directed We admit that every Convict in New South Wales is bound, in that truth was irrelevant. In four criminal libel prosecutions common gratitude, to sign an address to Mr Forbes ... but ... the body of respectable Emigrant Colonists owe him no such obligation. in December, Hall was found guilty with respect to allegations he made against the Governor, the Colonial Spigelman notes: "And so,followingquickly on thecreation Secretary and two lesser officials. of the Sydney tradition for defamation litigation, another grand Australian tradition was born: the short memory of Spigelman observed: "Actions in libel were to become a the media." Sydney sport. Hall himself took proceedings for criminal The Chief Justice noted that the effect of the la w of libel on libel against the editor of the semi-official Gazette, as did freedom of the press has been the subject of debate in NSW Wentworth. Sydney's position as a world capital of for over 170 years. "It is surprising how many of the issues defamation litigation was established in 1829." and arguments were already current in the 1820s. One Darling's attacks on the press were not limited to libel thing is, however, worth acknowledging. The contribution actions. He sought to muzzle the press by exercising the full of the first judges of this Court, particularly of the first Chief weight of his discretionary authority, in some respects, as Justice, to freedom of the press was substantial and worthy the Court subsequently found, improperly. He sought, for of commemoration." example, to remove newspaper employees who were He also pointed out that many institutions in NSW were assigned convicts. All enterprise in Sydney created quickly and developed a distinctive way, including depended, in large measure, on the labour of such convicts. the rule of law, the independence of the judiciary, supported Their withdrawal would cripple any business. In March by a vigorous and independent bar, and freedom of the 1829 a journalist on the A ustralian was at the Supreme Court press, driven by cantankerous editors. taking notes of a trial when a constable entered the Court and took him away to the prisoners' barracks, his assignment Jack R Herman as a convict having been withdrawn. On the same day Hall's foreman printer at the Monitor was sum m oned by [A transcript of the speech can be found on Chief Justice the Superintendent of Convicts for the same purpose. In Spigelman's page on the NSW Supreme Court website. There is taking such actions, Darling was ignoring a ruling of the a link to the speech on the "What's New" page of the Press Court, which later quashed a prosecution of Hall for Council's website. harboring an escaped convict, arising from such an attempt A journalism student from the University of Technology, Sydney, to withdraw assigned laborers. Katrine Narkiewicz, who attended the Address, has linked the Chief Justice's remarks more fully to contemporary developments In January 1830 Darling convinced the Legislative Council in libel law and the discussion of'rights'. Her article is published to approve a Bill that made banishment upon a second on the next page.] conviction for seditious libel automatic and was not in the discretion of the Court, i.e. mandatory sentencing. But, according to Spigelman, events were turning against Darling. On advice of his British ministers, the King