Well, here I am up in Coffs Harbour, at the Australian and New Zealand Law and History Society conference. It’s a terrific conference- not too many delegates, friendly and a diverse range of interesting papers. It’s being held at a resort on the beachfront, which is certainly a more picturesque setting than most conferences enjoy. It’s humid and thunderstorms and torrential rain sweep in from the ocean, then the clouds clear and the rainforest steams in the sun. I’m not giving my paper until the last session of the last day but I suppose that someone has to be last, and this time it’s me.
COMMERCIALIZING THE COLONIES The first session this morning, ‘Commercialising the Colonies’ at first glance was very diverse: the Australian Industries Preservation Act of 1906, Australia’s first competition legislation; the development of Bankruptcy Legislation in New Zealand in the 1860s; Apprentice Laws and the factory system in Victoria 1864-1900 and the political economy of ‘labour’ in Virginia in the 1830s. But as often happens, themes emerged: first, the importance of regional differences and second the process of commercializing labour.
In Stuart Anderson’s paper on bankruptcy law, differences emerged between the different provinces of New Zealand (Auckland, Dunedin, Christchurch and Dunedin) that were reflected in the debate that occurred in the 1860s over the form that bankruptcy legislation should take. Some provinces emphasized the moralistic overtones of insolvency, others privileged the need for transparency, or the desirability or otherwise of imprisonment, and while some questioned whether it was even possible to write a local Insolvency Bill anyway. In the end, New Zealand adopted the text of an English law.
Regional differences could also have been a factor in the Coal Vend case, the first case heard under the Australian Industries Preservation Act (AIPA) discussed in Katharine Kemp’s paper. This act of 1906 was an anti-trust bill which largely followed the Sherman Bill passed in America against the robber barons, but it also included the English common-law concept of ‘intent’. The Coal Vend case involved Newcastle coalmine owners who decided to discontinue their price war against each other and devised an agreement with shipping companies who would only buy their coal from them. They were prosecuted under the AIPA bill for anti-competitive behaviour. The Melbourne-based Sir Isaac Isaacs, who had drafted the legislation, found that they had infringed the act, but the appeal before the full High Court succeeded when it was heard by NSW based judges Barton and O’Connor. It eventually went before the Privy Council in 1913. There was not another prosecution under the legislation for another fifty-odd years.
The second theme of ‘commercializing labour’ was explored in Onofrio Deserio’s paper on the Victorian Apprentice laws which saw many children working without pay for periods varying between six and twelve (and even eighteen) months as the formal, craft-based system of apprenticeship collapsed under the factory system. [I must confess that my mind turned to the risible ‘apprenticeships’ conducted by fast food companies which likewise have employed a large proportion of their staff under the pretense of ‘training’.] The abuse of probation by employers was particularly rife in the clothing industry, where young women would be ’employed’ on probation, then dismissed once their wage-free period had elapsed, often to be employed for another ‘informal apprentice’ stint without wages.
Chris Tomlin’s paper on Virginia combined both themes. At this time, Virginia had not yet split into East and West Virginia, but there was a difference between the western non-slave-holding ‘peasantry’ and the slave planters of the east. But both sides united, for different reasons, in their belief that abolition would be economically harmful to Virginia.
PUNISHMENT AND EMPIRE The next session was titled ‘Punishment and Empire’.
Sarah Wilson, from the UK has an interest in the current enforcement of criminal charges in the wake of the Global Financial Crisis. Apparently Australia has a reputation as an aggressive securities culture in terms of pressing criminal charges for financial crimes (which I must admit surprised me!) She examined the case of Strahan Paul and Bates (1855), three bankers who were transported for 14 years for embezzling money and the distinction drawn in England at the time between ‘high-art’ (i.e. Commercial) crime and ‘common crime’.
David Plater then turned to cases where women were charged during the 19th century with the crime of poisoning, particularly the crime of poisoning their husbands in order to take up with the boarder or some other man. Such cases were often perceived as polarities, where women were either regarded with sympathy, or as evil women and latter-day Lucretia Borgias. Some were executed, but others were reprieved. During the 19th century medical evidence was still at a primitive stage and it was not always certain if the victim died of poison or natural causes.
Finally, Matt Allen examined the sentencing of the magistrate Samuel Marsden who has been characterized in Australia as the ‘flogging parson’, despite his more benign reputation in New Zealand. Using the Parramatta Court records, he has compared Marsden’s sentences with those of other magistrates and found that he was not exceptional. The magistrates role in NSW at this time reflected the older tradition of gentry-dominated, amateur, discretionary justice but it was more prosecutorial, in a similar way to vagrancy law in England at the time.
FOUNDATION The final session for the day ‘Foundations’ had only two, rather diverse papers. Renae Barker explained a typology (or is it a continuum?) that she has developed to explain the relationship between the church and state in the different Australian colonies. She introduced the concept of ‘plural establishment’ [i.e. That the state made funding available for the Anglican, Roman Catholic and Presbyterian churches and schools (hence the ‘plural’) but not Jewish synagogues and schools (hence ‘establishment’) ]. Her presentation moved beyond the usual emphasis on New South Wales and Van Diemen’s Land to also consider South Australia and Western Australia.
She was followed by a paper delivered jointly by Lisa Ford and David Roberts who examined the hiatus between the receipt in the colony of Robert Peel’s amendments to the ‘bloody code’ and Forbes’ notification to Governor Darling that NSW law would need to also be amended. Thirty capital convictions were handed out on the basis of laws that were now of uncertain status, even though Peel’s legislation deliberately restricted itself to England and the High Seas. It raises the question of what the colonies should do when the legislation on which their law has been based is repealed in England.
PLENARY The plenary lecture was given by Paul Mitchell from University College London, who examined the workings of the Judicial Committee of the Privy Council. The JCPC heard appeals from the colonies, and indeed continued to hear Australian appeals until 1986. As long ago as 1828 British politicians were aware of the problems of ‘distance’ in hearing colonial cases but, as Paul Mitchell explained, ‘distance’ was not just physical. He explained the way that the Privy Council judges used a number of strategies to ‘move closer’ legally and philosophically to the court from which the appeal had originated. The judges were well informed about foreign standards of law, and often appealed to transnational principles rather than ‘pure’ English justice. Moreover, several of the judges had themselves presided in India. In many ways the JCPC took a ‘statesmanlike’ approach rather than a strictly judicial one. It was an excellent presentation.
I hope that I’ve represented these papers fairly (please email me if you’d like me to make changes!) The abstracts for the conference are available at https://www.une.edu.au/about-une/academic-schools/school-of-law/anzlhs-conference-2014