Monthly Archives: November 2009

The Resident Judge reckons 28/11/09

that she would have trouble answering the recent Age Poll of 24 November about the ETS that had just been announced the previous day.

The question was:

Do you agree with the deal struck between the Government and the Opposition over the Emissions Trading Scheme?

Yes, or No was the choice.  Some choice.  What about the “I want us to have something concrete at Copenhagen rather than sitting around daring each other to go first”  option?  What about the “It’s a poor effort but better than nothing” option?

I wonder what motivated the 32% to say ‘yes’?  And conversely, the 68% who said ‘no’?  ‘No’ because they didn’t want an emissions trading scheme at all?  or ‘no’ because this one is too weak,  gives away too much to polluters and deflects the need to make changes in the way we do things?

Actually, I felt a little frisson of history-in-the-making when Malcolm Turnbull made his speech about climate change the other night.  I suspect that he will be rolled this week, but I came over all goosey hearing some genuine conviction being expressed, instead of just snarkiness and point-scoring.

The Resident Judge wonders 18/11/09

just how Alexander Downer thought that his comments on Fran Kelly’s breakfast program last week were going to improve the asylum seeker problem.  The previous government had a solution- undertaken “sotto vocce” and it “hasn’t generated much publicity lately in Australia”:

We used to get the navy not to guide the boats into the Australian shoreline, what we did (laugh) was we got the navy to tow the boats back to the Indonesian Territorial Waters, left the boats with enough fuel, food and so on to get to a port in Indonesia, guided them to where to go and then left them- obviously monitored to make sure that the boat was safe, but disappeared over the horizon…. We didn’t run around boasting that we were doing this because we knew the Indonesians accepted these people back through gritted teeth.

My wordy, that’s a refugee policy to be proud of, and one we’d endorse heartily if the boats were sailing in the other direction, wouldn’t we.  Ah yes, we can hold our heads high.


The Resident Judge Wonders 12/11/09

…whether we really need ARMED security guards at railway stations?  Bailleiu seems to have picked a winner as an election policy. But two ARMED security guards down at the little station in Macleod?  Every night?  I don’t think so.

Magistrates in Port Phillip

When Governor Gipps was running through the long list of people who had complained about Judge Willis, he mentioned that eighteen magistrates had come forward with complaints about Willis’ behaviour.   How did people get to be magistrates in Port Phillip in the early 1840s?

A bit of back-tracking first.  The role of ‘magistrate’ has a long history. In England they have been a feature, in one guise or another, of the justice system for the past six centuries.  Traditionally the gentry families of the countryside, almost as a matter of course,  appropriated the role as their right within the village system of deference and moral responsibility that underpinned English rural life.  The magistrate, who usually held unreported hearings in his own house, had wide latitude over many areas of life; magistrates knew the villagers  (their families, their entitlements and their histories)  and were known themselves (their families, their entitlements and their histories)  by the village inhabitants.

In the early years of penal settlement in New South Wales and Van Diemens Land, there were very few free settlers and at first nearly all magistrates held other positions.  As more free settlers arrived and took up large land grants, they were called upon to police the work and leisure of the convicts who worked on their properties.  Have no illusions about this: the colony depended on the forced labour of convicts, and the efficiency of this dispersed, in effect privatized, system depended on the surveillance, assiduousness and authority of the magistrates.

The Colonial Office back in London appointed the main office-bearers for Colonial positions,  shifting, juggling and negotiating individual careers as part of a huge chess-game, with influential spectators on the side making their ‘suggestions’, pulling their strings and calling on and bestowing favours in the swirl of patronage and reciprocity.   The appointment of magistrates was, however, one of the positions in the gift of the local Governor in the colony- and he used it.  And eager aspirants knew that and approached him too, with their letters of introduction and recommendation from patrons both at home and those who had preceded them to the colony.

The early magistrates in Port Phillip were appointed from Sydney, both paid and unpaid.  There was a sniffiness about paid (or stipendiary) magistrates, and certainly the London-based Colonial Office preferred honorary magistrates who did not need to be paid.  But from about 1822-42 the courts had increasing oversight over magistrates’ activities and the issue of conflict-of-interest became more pressing.  Unlike in England, the landed proprietors of New South Wales were not a leisured class: they were entrepreneurial men on the make themselves, who were anxious for quick returns on their capital, which in turn depended on convict productivity.   The rapid extension of settlement necessitated the appointment of paid magistrates in charge of an organized, generally ex-convict, police force.   On the anxious fringe of frontier settlement, there was increasing demand for police magistrates which was on  one level resisted by the local government on grounds of cost, but acceded to as a ‘temporary’ measure because it meant that personnel could be shifted to meet population movements and changing needs, unlike honorary magistrates who were appointed because they were already established in a particular locality.

Patronage power tended to be diluted the further one travelled from the metropole.  The Colonial Office could, and did, ask that particular men be appointed magistrates-  F. B. St John, the Police Magistrate in Port Phillip was one such Colonial Office request.  But generally, the magistracy was one area of patronage, interwoven as it was with local status and visibility, that the Colonial Office was prepared to devolve to the Governors.  Once La Trobe arrived in Port Phillip, Gipps shared aspects of this patronage with La Trobe.  He always consulted La Trobe before ratifying appointments and he entertained suggestions from La Trobe’s end.  But the actual gift of  the magistracy rested with him.

Gipps’ practice was to avoid making magistrates from among practising doctors and from the clergy (unlike earlier times- the Rev Samuel Marsden was commonly known as a whipping parson). He insisted that magistrates must have been in the colony for one year, and must be at least 24 years of age.  Gipps relied on La Trobe’s opinion and asked him to vet the appointments amongst others in the locality- for instance, before appointing Stephen and Edward Henty to the position of magistrate in Portland, La Trobe consciously sought out people who thought they should not be appointed- to no avail.  Gipps advised La Trobe to broach the topic with nominees beforehand: “I hope you always obtain a man’s consent to act before you recommend him as it is very necessary to do so.”  Gipps suggested that La Trobe make the recommendation directly to him (Gipps) or to his Private Secretary as “a man might not want his qualifications for the Magistracy discussed in public office” (Gipps to La Trobe 1 March 1840, Shaw Gipps-La Trobe Correspondence p.17)

By the early 1840s the magistracy was no longer seen primarily as a penal surveillance mechanism, but had been overlaid with other municipal, moral, licensing and public order issues.  The honorary and police magistrates were responsible for the “regulation and control of a community” including the administration of regulations over buildings, fire prevention, roads, cleanliness etc.   as well as petty crime and public safety.  When the Melbourne Town Corporation was created in 1842, a separate division of magistrates was created from among the town councillors.

One thing that you did not need was legal training.  In the 1830’s Plunkett published his book which came to be known as “Plunkett’s Australian Magistrate” and the mainstay of legal advice for magistrates and the first Australian practice book of its kind.  As the 1840s went on, there were increased bureaucratic demands made of magistrates in terms of documentation and official oversight.

Paul de Serville  in Port Phillip Gentlemen lists the magistrates appointed in 1841.  Several held other government positions e.g. Edwards,, Le Souef, Parker, Robinson  and Sievwright were all magistrates by virtue of their positions as Aboriginal Protectors;  Airey, Fyans and Powlett were also Commissioners of Crown Lands.  Lieutenant Russell as Commander of the Mounted Police was a magistrate; as was  James Simpson as Police Magistrate until replaced by the Colonial Office’s suggestion of F. B. St John.  Alongside these were the honorary magistrates recognized for their importance in the community.  As part of the gentlemanly identity that they all projected and drew upon, all magistrates were involved in myriad civic and business activities.

As might be expected given Willis’ temperament, he clashed with several of the magistrates under his purview.  He strongly embraced the educational aspects of his role as Supreme Court judge, insisting that the magistrates attend court to familiarize themselves more fully with the law.  He was critical of magistrates who were involved in speculation – or at least, those who got caught out in the financial distress of the early ‘4os, and clashed with Simpson, Farquhar Mc Crae, Lonsdale and Brewster.  He was often critical of the Aboriginal Protectors, especially Sievwright who was by this time under a cloud over other improprieties as well.  In one of the frequently-retold vignettes from Judge Willis’ courtroom, he clashed on several occasions with J. B. Were, most famously when he without warning ordered Were, attending court as a magistrate,  to take the witness stand to testify.  When Were protested that he could not remember certain details, Willis awarded him one-two-three-six months in jail for contempt of court.  Needless to say, J. B. Were was one of the 18 who protested Willis’ behaviour.  But not all magistrates opposed him.  Willis looked favourably on Robert Martin, William Verner and J. D. Lyon Campbell- all of whom happened to live nearby to Willis in Heidelberg- and they gave him their unstinting support.   The split in support or opposition to the Judge amongst the magistrates mirrored the division in public opinion more generally.

The Resident Judge Reckons 8/11/09

that newspapers are increasingly being used as an outlet for the activities of lobbying firms.  It’s just “he said/she said” being mouthed by ventriloquist politicians, ‘spokesmen’ and ‘independent’ commentators.

The Age yesterday had a register of the climate-change lobbying companies- easily found yesterday;  I couldn’t find it on the site today- I had to find it through the Centre for Public Integrity which then had a link to it through the Sydney Morning Herald.   The PDF file showing the large companies, the lobbying companies who contract to them, and the lobbyists and their policitical connections can be found at

The advisers and staffers, on both sides,  are coming out to play.  And we’ll uroll our newspapers in the morning and think that we’re reading “news”.

Meanwhile, Rupert and Little Johnny are whipping themselves up into a frenzy.  A plague on all their houses.

‘The Colony’ by Grace Karskens


2009, 549p plus notes

This is an absolutely beautiful book.

Physically, it is a thing of beauty.  It is hard cover, brimming with photographs and drawings (some glossy museum pictures juxtaposed with current photographs that the author has taken herself), with thick, luxuriant white pages.   And beautiful it should be, I suppose, supported as it is by the City of Sydney, the Australia Council, the Australian Academy of Humanities and the State Library of NSW.  In fact at first I thought it was a coffee table book to accompany a series (there was an SBS series of that name) but it’s not.  It’s a history (with the humility to designate itself a history rather than the history) fair and square, without apologies.

Karskens nails her colours to the mast: she is writing as an historian, and participating in a historical conversation with other historians:

This book has its roots deep in a great mountain of existing research, thinking and histories.  Historians work collectively, within a wider community of scholars.  So history writing is less an individualist pursuit than a collective quest, and an ongoing process.  This is one reason references are so important: they rightly acknowledge the work of past scholars, as well as guiding future readers and scholars into the literature.  In the notes and bibliography of this book you will find, besides original manuscripts and archival records, maps and pictures, an extraordinary and diverse body of scholarship about early Sydney, works mainly by historians, but also archaeologists, economists, anthropologists, art and architectual historians, ecologists, geologists, museuologists, geographers, biographers and local and community historians.  (p. xii)

She is true to her word.  There’s a heavy debt to Inga Clendinnen here, not only in content but in writing style, and likewise to Alan Atkinson– two historians I deeply admire whose writing turns an event around and looks at it from different angles, giving us the gift of coming to the familiar with new eyes.   There’s also a connection with James Boyce whose recent book Van Diemen’s Land is almost a pigeon-pair with this book in its re-visioning of the penal colony as a new environment with new opportunities.  Unlike Robert Hughes’ The Fatal Shore, this book joins other histories- John Hirst’s work springs to mind-  written with  a determination to look beyond Hughes’ gulag and horror: it looks to the agency, optimismism and opportunism of ordinary people in a new environment instead of just the dregs of the old world.

The history itself is a thing of beauty too.  It breaks free of many straitjackets: more than perhaps any other history of Australia that I have read it interweaves Aboriginal history, archaeology, women and environmental history throughout the book.  Not content with the almost obligatory “before” chapter dealing and then dispensing with “the aborigines”, she asserts that Sydney remained an Eora town- that Eora people continued to live within Sydney on their own terms, with their own geography and in resistance to christianizing impulses, into the 1830s and 40s. Indeed, they have never left.

The environmental theme carries throughout the book as well.  She starts in deep time and emphasizes the connection between landscape and food supply not just along the coastal regions, but inland along the rivers and ravines.  Unlike other histories which are drawn to the inland and the importance of crossing mountains and going towards the centre, she turns back towards the sea, just as the early Sydney people did.  She reminds us that Sydney had three beginnings: the abandoned Botany Bay settlement;  Port Jackson (truly a ‘port’ city where early convicts settled into the Rocks with their own raucous, uninhibited subculture), and then the third, more ordered attempt to start again in Parramatta by imposing conformity onto the layout.  She reminds us that once settlers spilled onto the Cumberland Plain, confronted by different tribes, the same battles had to be fought anew with new opponents.   The Europeans of early Sydney were not the industrialized huddled-masses; they were pre-modern people bringing with them the patterns of village tradition and the pre-industrial paradox of deference combined with the English moral economy.  At the same time, though, they were a consumer society, tied into the broader imperial economy by virtue of the port which serviced and was served by British trade routes and markets.

In Karsken’s book Macquarie is not the benign “Father of Australia”.  Instead she depicts both Lachlan and Elizabeth Macquarie as landscape artists, imposing their improving architectural vision onto Sydney, obliterating the emergent, spontaenous eruption of the workers’  lifestyle and culture by appropriating public space for the ‘respectable’ in mimicry of  a modern European urban landscape.

Nor, despite her obvious respect,  does she let Clendinnen’s romantic vision of dancing strangers blind us to the violence that was the first response and default position.  She is not so enamoured of Watkin Tench that she sees his expedition under Phillip’s orders as a face-saving farce, as Clendinnen argues.

In her review of the book  Cassandra Pybus chided Karskens for following the well-worn and well-mined biographies of  governors, scribbling military officers, Macquarie, Ruse and a few high-profile convicts.  I’m not sure that this is fair: the book is studded with small stories that move into the spotlight then fall back to the wings- not grand narratives to be sure, but small solo items that illuminate and make larger arguments human before moving on.  There is the grand design of official planning and policy, but she emphasizes that there was a complementary,unofficial, spontaneous counter-reality that emerged from the myriad small stories and small lives of ordinary people.

Some quibbles?  Karskens had succeeded so admirably in integrating an aboriginal worldview and interaction throughout the book, but two lengthy chapters at the close of the book focus on black/white relations in the Cumberland region.  Given that she was already handling this so naturally and unselfconsciously these two chapters deflected the book into another direction.  They are both long chapters.  Up to this point, there had been such elegance in the writing, at both structural and sentence level, but the conclusion of the book is  weighted unevenly and the work as a whole loses its symmetry.

The book is richly illustrated, so much so that I was surprised to find colour plates half-way through.  I had assumed that it was black and white only, and there was no reference in the text (e.g. Plate 3) to prompt the reader to search for them.  I felt almost cheated to find them later.  Likewise, maps would have reinforced her argument about the importance of waterways and coast and the pattern of the spread of settlement.

Ah, but these are just quibbles.  This is an insightful, intelligent, deeply human history with immaculate scholarship.   In his review published in The Monthly, Alan Atkinson wrote that the book  “propels Karskens straight to the first rank of Australian historians”- high praise indeed.  It’s certainly had me engrossed for about the last three weeks (hence the paucity of other book reviews recently), and you know- I think I’ll read it again one day.

‘Journey from Venice’ by Ruth Cracknell


2000, 271 p

Ruth Cracknell was a much-loved Australian actor- sharp, eloquent, funny, rather patrician in an ‘older woman’ sort of way. Although, of course, her character Maggie Beare in ‘Mother and Son’ (where she plays the devious elderly mother whose hapless adult son returns to live with her)  was none of these things!

I had to keep flicking to her picture at the back of the book to remind me that she was the author, because her celebrity is almost inconsequential to this story.   It’s not so much Ruth Cracknell here, but Mrs. Ruth Phillips, mourning the death of her husband Eric.  It’s as woman and widow, mother and grandmother that we meet her, not as a ‘star’.

This is a beautifully constructed memoir.  The preface starts with Eric’s funeral,  written in italicized third person, as if she is watching herself going through the ritual.  She then moves back in time to their arrival in Venice for a holiday together and the pace of the narrative moves to a slow sort of travelogue, overshadowed by the certain knowledge that death  is hovering over them like an unseen, malevolent force.  This sense of foreboding permeates the book, even when Eric is finally well enough to fly home to Melbourne where cancer is diagnosed.  The title is well chosen: I kept thinking of Mann’s ‘Death in Venice’, but Eric does not die there. He recovers sufficiently to be medi-evacuated back to Australia, has two precious trips back to the family home for Sunday lunch, and some weeks later dies of the cancer, not the bleeding that initially threatened his life.  And so, by the end of the book, we return to the funeral and we, too, grieve.

While waiting in Venice for him to recover sufficiently for the trip home, the tourists leave as the summer season ends, the deeper water laps at the floor of her ground floor flat, and Ruth becomes aware of the sheer inconvenience of living (as distinct from visiting) Venice.  That holiday, so eagerly anticipated, so richly enjoyed for the first few days becomes instead a stark, lonely, bewildering exile.

This is, instead, a journey from Venice, not to it, and in the weeks they have together, they fall in love again- a different sort of love, suffused with the knowledge that it is all they have left.  They truly do live “in the moment”: the sharing of a blood orange is a sensuous joy, and she sees and loves anew the stripped down, solid core of the man she has been married to for over 40 years.

It was interesting to read this book after recently finishing Caroline Jones’ book about her father’s death.  This is a much more grounded, sane and adult book, and one that gives much more comfort.  It is beautifully written and constructed, and it shares the poise, groundedness and authenticity of its author.