Lest you think I do absolutely no work on my thesis at all, last night I finished reading Bruce Kercher’s ‘An Unruly Child’. The blurb on the back of the book describes it as “a provocative re-examination of our legal history, appearing at a time when Australians are reconsidering both their past and their future”.
Kercher’s intent is to critique the official view as taught to law students that Australian law is English law with minor adaptations to meet local circumstances. His book examines the contest over the nature of the law in Australia, the struggle between local and imperial officials, and between popular ideas and the official law. Kercher probably leans towards John Hirst’s view that right from its inception, the NSW colony developed practices that subverted imperial intentions for a purely penal society. He argues that particularly between the introduction of the Supreme Court in the 1823 NSW Act, (and even more in the 1828 Australian Courts Act), and the mid-19th century, there was a period in which colonial law officers were authorized and even encouraged to consider the applicability of English law to local conditions, and to modify it where necessary. More liberal judges embraced this opportunity: more conservative judges resisted it. At the same time, colonists themselves subverted legislation that hampered them- for example, squatters in the Legislative Council protected their privilege and opportunities for expansion through the Squatting Acts; they insisted on Bushranger Acts that have some parallels with anti-terror legislation today, and in some regards e.g. insolvency legislation, Australian colonial legislation predated changes made in later decades to English law.
John Walpole Willis is mentioned in this book, but is given less consideration than Montagu in Van Diemens Land and in particular Boothby in South Australia- the two other “bad boy” Australian colonial judges. Possibly Montagu’s actions were more overtly intransigent or complicated by financial scandal, while Boothby in the 1860s was an anachronism in post-responsible-government times. As with so much with Willis, I’m still not absolutely sure that he fits entirely into a ‘conservative’ pigeon-hole. But as Kercher points out, conservative and liberal legal beliefs could have ironic consequences. For example, the ‘liberal’ Francis Forbes quelled his misgivings over the highly repressive bushranger legislation because he strongly supported local law making powers, while the ‘conservative’ William Burton imposed the death sentence on white attackers at the Myall Creek massacre in a radical letter-of-the-law interpretation that outraged white settlers. As Kercher notes “Liberalism and conservatism did not always have predictable results” (p.107).