1990 DEBT RECOVERY AND INSOL VENCY LA W 49 New South Wales creditors ’ autonomy in a way which was never evident in England. Later reforms in both England and New South Wales reinforced or revived that autonomy of creditors. The reforms also restricted the autonomy of debtors, the essence of which was their right to remain in gaol protecting exempt property. That eventually disappeared in England, but it was never very evident in New South Wales where the autonomy of both parties was strongly limited by the Court of Civil Jurisdiction. When the English state eventually strengthened, it did so at the expense of debtors more than creditors. By the middle of the nineteenth century both jurisdictions had laws which favoured creditors. DEFAMATION LAW AND THE EMERGENCE OF A CRITICAL PRESS IN COLONIAL NEW SOUTH WALES (1824-1831) Brendan Edgeworth Introduction arly one morning in March 1827 two men met in a lonely field at Homebush on the outskirts of Sydney. One of them was Robert Wardell ELL.D., part-owner of the Australian newspaper, editor and barrister. The other was Colonel Henry Dumaresq, personal assistant, confidant and brother-in-law of Governor Darling. Their purpose in meeting was to fight a duel provoked by an alleged libel of the Colonel appearing in the Australian one week earlier. The Colonel had issued a challenge to the editor after reading an article which claimed that he had improperly supplied a file belonging to the Australian to the Sydney Gazette, the official newspaper in the colony at the time. The old adage has it that the pen is mightier than the sword. Fortunately for the two protagonists that day it proved mightier than the pistol too, for despite three attempts to hit each other from a distance of thirty paces, they both emerged unscathed. At this point Robert Warden’s second, and co-owner of the Australian, William Charles Wentworth, prevailed upon him to tender a verbal apology. Thereupon, 50 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 51 “[h]onour being satisfied, the parties mounted their horses, courteously saluted each other, and rode back to Sydney and breakfast”.1 Paradoxically, this episode, an illegal one at that, was significant in the develop­ ment of defamation law in the colony for a number of reasons. In the first place it marked a deterioration in the relations between the press and the Governor at the very time when he was contemplating a legislative scheme to regulate their activities. Second, it demonstrated how ancient rituals continued to set the terms of the conduct of public affairs in early New South Wales. Third, it was one of a sequence of reverses suffered by the hapless Governor in his contest with the newly-arrived, critical and “independent” press. However, it is not possible to understand the complexities of the ensuing struggle over the freedom of the press in New South Wales in the late 1820s by focussing exclusively on the dynamics of particular conflicts between the Governor and the newspaper editors. It is also necessary to address the peculiar constitutional framework within which those conflicts were acted out. Today, it is usual in popular imagery to see the press as a fourth estate, a distinct arm of a pluralistic, democratic and responsible polity. By contrast, the fledgling colony of New South Wales in the 1820s did not have a division of constitutional labour that allows ready application of these modem concepts. In­ deed, to apply contemporary notions of legislature, executive, judiciary and press would positively hinder analysis of the political and legal disputes of the time. Insofar as the political structure of the colony was defined by the New South Wales Act of 1823 an examination of that Act must be the starting point for analysis of the dramatic differences between early New South Wales and modem New South Wales, dating the latter for the purposes of this analysis from the establishment of a democratically elected Legislative Council in 1856.2 The Act of 1823 reflected the changed nature of the colony by the 1820s. No longer simply a convict settlement, it could boast geometrically increasing commer­ cial and agricultural activity evidenced most visibly in the development of Sydney Town as a busy seaport. The majority of the population were still convicts, but given a total mainland population in excess of 24000 by 1820, there was good cause for reformers such as William Charles Wentworth to advocate the introduction of such political institutions as would satisfy the needs of a population aspiring to be free citizens rather than passive subjects of the Empire. After an extensive official inquiry undertaken by Commissioner Bigge in the early 1820s two reports were produced which proposed the system later embodied in the Act. The representative institutions demanded by Wentworth and others were notably absent from the mode of governance envisaged by the Imperial Parliament. Instead, section 24 of the Act provided for the establishment of a distinctly undemocratic Legislative Council: its members were to consist of from five to seven persons nominated by the Crown. Further, what legislative powers the Council did have were rather limited. They could not initiate legislation, for instance. This power was vested exclusively in the 1 O’Halloran, Some Early Legal Celebrities (Second Series), 10 Jnl. OF THE Royal Aust. Historical Soc. 301,345 (1924). 2 4 Geo. IV c.96; and Constitution Act 1955 (N.S.W.). 52 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 6 Governor. Also, the British authorities could approve a law even if it had been rejected by the Legislative Council, while section 25 of the Act conferred on the Governor an emergency power to make laws independently of the Legislative Council in cases of actual or threatened rebellion or insurrection. In addition to these very clear limitations on local law-making, the Crown explicitly retained a general power of disallowing any colonial laws. This power could be exercised by the Secretary of State for the Colonies.3 This was not all. The Governor’s powers were subject to one other significant limitation: the Chief Justice’s role in the process of legislation. By section 29 of the Act, no law could either be presented to, or passed by, the Legislative Council unless the Chief Justice had previously certified that “such proposed law is not repugnant to the Laws of England, but is consistent with such Laws, so far as the circumstances of the said Colony will admit”. Importantly, this provision required the Chief Justice to act ex officio and not in the course of judicial proceedings in granting his approval. As will be seen later, this enlargement of his role in the legal affairs of the colony was to prove very significant in the context of the later struggle between the press and the Governor. The Chief Justice’s powers did not stop there. He was also a member of both the Executive Council and the Legislative Council.4 It followed that any Governor would be very dependent on his Chief Justice for support in political as well as legal matters. Formally, at least, the repugnancy doctrine was the only substantial restriction on the Legislative Council’s powers: as long as its proposed legislation was not inconsistent with the laws of England, its legislative power was unlimited. However, the history of the late 1820s is marked by a dramatic ineffectualness on Darling’s part in his attempts to impose a legislative muzzle on the press. Furthermore, when this strategy failed his attempts to achieve the same object in the courts through use of common law criminal and seditious libel were only marginally more successful. The aim of this paper is to examine the causes of this dramatic contrast between legal doctrine on the one hand and legal practice on the other. My argument is that only an examination of the political and social contexts of the various legislative measures and judicial pronouncements can reveal the reasons why the law changed as it did. But before any analysis of the case law and statutes can be undertaken it is necessary to survey Governor Darling’s early relations with the press. Darling's First Encounters with the Press or the first quarter of a century of the colony’s existence there was only Fone functioning newspaper, the Sydney Gazette. Modelled on the London 3 Id., s.30. For further details, see A. Castles, An Australian Legal History chap. 7 (Law Book Co. 1982). 4 Id., s.29; and Instructions to Governor Darling, July 17, 1825, Historical Records of Australia [H.R.A.] 1/12 at 109 (Commonwealth Parliament 1922). 1990 DEFAMATION LAW IN COLONIAL NEW SOUTH WALES 53 Gazette of the seventeenth century, this paper operated more as an official publication than a newspaper in the modem sense. It was owned by the Crown, a considerable portion of its columns were given to disseminating official information, its editor received an annual stipend of £60 as Government Printer and, most importantly, he was obliged to submit every copy to the Governor’s secretary for approval before publication.5 Unsurprisingly there is no record of the paper ever having attracted official disfavour. It was not until 1824 that the first genuine, critical newspaper, the Australian, appeared. In 1826 it was joined by the Monitor and in April of the following year the Gleaner arrived, hi a rather short time, therefore, the colony had acquired a fourth estate of sorts, and some thirty years before it saw its first democratically elected political institutions. This peculiarity of historical development is an important factor in understand­ ing the relations between the press and Governor Darling.