Index to compilation of speeches delivered by the Hon. J J Spigelman, AC, Chief Justice of NSW in 2002 Page number Date speech Description reference within delivered pdf compilation Foundations of the freedom of the press in 20 November 2002 Australia - The Inaugural Australian Press Page 2 of 194 Council address Re-dedication of the honour roll in the original 11 November 2002 Page 18 of 194 Supreme Court building Address upon the occasion of the retirement of 8 November 2002 Page 20 of 194 the Honourable Mr Justice Philip Powell AM Are Lawyers Lemons? Competition Principles 29 October 2002 Page 24 of 194 and Professional Regulation 12 October 2002 The Idea of a University Page 41 of 194 8 October 2002 Becket and Henry II: Exile Page 44 of 194 Convergence and the Judicial Role: Recent Developments in China - Address to the XVIth 16 July 2002 Page 68 of 194 Congress of the International Academy of Comparative Law Convergence and the Judicial Role: Recent 11 July 2002 Developments in China - Address to the China Page 91 of 194 Education Centre, University of Sydney June 2002 Guide to Judicial Conduct Page 113 of 194 17 May 2002 The Maintenance of Institutional Values Page 155 of 194 Negligence: The Last Outpost of the Welfare 27 April 2002 Page 162 of 194 State Negligence: The Last Outpost of the Welfare 27 April 2002 Page 164 of 194 State (Summary) Formal Opening Ceremony Court of Criminal 8 February 2002 Page 180 of 194 Appeal at Dubbo 29 January 2002 Opening to Law Term Dinner 2002 Page 186 of 194 Foreward to G Lindsay, No Mere Mouthpiece: 2002 Servants of All Yet of None, Chatswood, Page 191 of 194 LexisNexis Butterworths, 2002 Foreward to J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations 2002 Page 193 of 194 and Commentary on the Uniform Evidence Acts, Sydney, LexisNexis 2002 Foundations of the Freedom of the Press in Australia - The Inaugural Australian Press ... Page 1 of 16 Print Page Close Window Foundations of the Freedom of the Press in Australia - The Inaugural Australian Press Council Address FOUNDATIONS OF THE FREEDOM OF THE PRESS IN AUSTRALIA THE INAUGURAL AUSTRALIAN PRESS COUNCIL ADDRESS THE HONOURABLE J J SPIGELMAN AC CHIEF JUSTICE OF NEW SOUTH WALES BANCO COURT, SUPREME COURT OF NEW SOUTH WALES SYDNEY, 20 NOVEMBER 2002 On the evening of 20 September 1826, two privates in the 57th Regiment stationed in Sydney, Joseph Sudds and Patrick Thompson, stole some calico from a shop in York Street, around the corner from their barracks situated at what is now Wynyard Square. They expected to be caught and sentenced to transportation, which appeared to them to be preferable to the rigours of military discipline. Lieutenant General Ralph Darling, Governor of New South Wales – or, as his commission described his office, Captain General and Governor in Chief – concerned with the maintenance of the discipline of his force over this and similar incidents, including a soldier’s self-mutilation with a view to discharge, determined to make an example of Sudds and Thompson. Such behaviour reinforced Darling’s opinion, also prevalent in London, that transportation to Australia had lost its deterrent effect and its role as punishment. Darling set aside the two soldiers’ convictions and sentences by a Court of Quarter Sessions, which had ordered them to be transported to a penal settlement for seven years, and directed that they would serve on a chain gang on the public roads of the State for the entire period of their sentence and thereafter would return to their corps. At 11.00 am on Wednesday 22 November 1826, the two prisoners were brought before the garrison assembled on the parade ground of the barracks. They were stripped naked, dressed in the yellow and grey clothes of a convict and each was then encased in a specially designed set of chains with an iron collar with spikes that prevented lying down and wrist and leg manacles, weighing some fourteen pounds in total. Thus burdened they shuffled from the parade ground with four drummers beating out the Rogues March . Perhaps nothing more would have been heard of this affair but for one unfortunate circumstance. Sudds was critically ill, to the knowledge of his wardens but unknown to Darling. He died five days later on 27 November 1826 [1]. Darling had a public relations crisis on his hands. An incident of this character could permanently damage his career, as he well knew, and as testified by both the volume and obsequious content of his correspondence with London on the subject. One source of hostile information for his superiors in London was the strident reportage and exploitation of the incident by the then new independent newspapers of the colony. Only three years before William Charles Wentworth and Robert Wardell, the first two barristers admitted as such by the Supreme Court of New South Wales, had commenced publication of the Australian, which joined the official Sydney Gazette. A year later the Monitor began publication under the direction of Edward Smith Hall. Wardell was a highly competent barrister, who had been passed over for Saxe Bannister as Attorney- General. If Darling had had him as principal law officer, the history I am about to recount would probably have never happened. Wentworth, locally born, and already emerging as the leader of the emancipists, had met Wardell in London in 1819 where Wardell was already an editor, of the Statesman evening newspaper. They travelled to Australia together in 1824, accompanied by a printing press. Their approach was clearly stated in their first editorial: http://infolink/lawlink/supreme_court/ll_sc.nsf/vwPrint1/SCO_speech_spigelman_20 ... 23/03/2012 Foundations of the Freedom of the Press in Australia - The Inaugural Australian Press ... Page 2 of 16 “A free press is the most legitimate, and, at the same time, the most powerful weapon that can be employed to annihilate influence, frustrate the designs of tyranny, and restrain the arm of oppression [2].” Governor Darling regarded Wentworth as “a vulgar ill-bred fellow, utterly unconscious of the common civilities, due from one Gentleman to another [3].” The very title – the Australian – proclaimed Wentworth’s political program. Edward Smith Hall at the Monitor deployed different terminology. He denounced the community which would not stand up for their rights as “a poor grovelling race … they are no longer Britons but Australians ” and spoke of them “degenerating into Australians [4]”. Hall was a failed farmer, the first cashier of the Bank of New South Wales, a founder of the Benevolent Society of New South Wales and of the local branch of the British and Foreign Bible Society. He had come to Australia as a lay missionary – “an apostate missionary”, Governor Darling would call him – with a radical’s faith in the perfectibility of Man, undiminished by the experience of the French Revolution - Hall applied his evangelical zeal to everything he did or wrote, never pausing at the border between zeal and self-righteousness. The day Sudds died, the Australian commenced its coverage with a blistering attack on the Governor, the system that permitted action of this character to occur and raised serious doubts about the legality of the Governor’s conduct. The Monitor, which had long campaigned against the brutality of the treatment of convicts [5], also took up the cause. Plainly shaken by the course of events, and by the allegations, Darling belatedly sought legal advice, including an advisory opinion from the Supreme Court, then only two and a half years old. In a joint opinion, Sir Francis Forbes and Justice Stephen ruled against the Governor. Darling had in effect set aside a sentence and imposed a new sentence by executive fiat. This was the assumption of a judicial role. The Governor purported to act under a statutory power, but Forbes and Stephen concluded that that power permitted the Governor to interfere only by reason of conduct subsequent to the sentence of transportation taking effect [6]. The underlying basis of their opinion was the assertion of a clear separation of functions between the judiciary, which imposes sentences, and the exercise of executive authority after a sentence takes effect, pursuant to a statutory power for a specific purpose. It was the clearest possible assertion of the application of the rule of the law to the colony and of the independence of the judiciary. The strength of Sir Francis Forbes’ convictions on the fundamental significance of these principles had already been manifest in his previous post as Chief Justice of Newfoundland where he had come into conflict with the military Governor of that colony by declaring invalid a range of regulations [7]. Forbes’ strength of character is manifest in the fact that, in neither position, did he have the protection of security of tenure available to the English judiciary since the Act of Settlement of 1701. The media attack on Darling in the wake of the death of Sudds elevated the injustice of the incident to a symbol of the injustices perpetrated on the residents of New South Wales by reason of the absence of any form of involvement in the legislative process and the absence of trial by jury. There was provision for juries at the time, but such juries, far from being constituted by peers of an accused, were constituted by seven military officers who sat in uniform. Until this point of time, Darling had allowed the media to develop without interference from the executive. Indeed only shortly before the Sudds Thompson incident, he had refused an application by the head of the Anglican Church, Archdeacon Thomas Scott and the leader of the exclusives, Mr John Macarthur, to direct the Attorney General to prosecute the papers for attacks upon them.