Dr J M Bennett AO (1935 – 2022)
Dr John Michael Bennett AO, who died on 17 July 2022 after a brief illness, was the doyen of Australian legal history. He made a significant contribution to legal history in this country, with a profound understanding of the development of our legal institutions, heritage and legal personalities. He is entitled to recognition as one of the most influential Australian legal historians of all time, ranking alongside the late Professor Alex Castles and Emeritus Professor Bruce Kercher.
Dr Bennett matriculated to the University of Sydney in 1953 and graduated with the degrees of Bachelor of Arts and Bachelor of Laws. He was first admitted as a solicitor on 1 May 1959 and later admitted to the Bar on 8 August 1980, practising until 2000 and later becoming a life member of the NSW Bar Association.
Dr Bennett was a man from another era. He never adopted electronic communications such as emails and continued communicating with his friends and colleagues by either telephone or posting typed letters or handwritten notes. He was a gentlemen in the truest sense of the word, being extremely modest about his accomplishments and treating his friends and colleagues with the greatest of respect and warmth. He was a prolific writer, being the author of numerous books and articles spanning over 60 years, with former High Court Chief Justice, the Hon A M Gleeson AC, KC, praising his experience as being 'an unusual combination of legal knowledge and experience, and historical scholarship.'1 Professor Stephen Garton AM described him as follows: 'John Bennett is one of Australia’s most significant legal historians and our foremost authority on the history of the Australian judiciary. His many books on prominent colonial judges, particularly the Chief Justices, and more wide ranging studies of law and lawyers in the early colonial period have made a major contribution to our understanding of the vital role of the law in the evolution of Australian political culture.'2
Dr Bennett’s major works included a history of the New South Wales Bar,3 described as 'a major contribution to the written legal history of New South Wales',4 a history of the Supreme Court of New South Wales,5 an account of the portraits of Chief Justices of New South Wales,6 a history of the High Court of Australia, described by Sir Garfield Barwick as having 'done the community a most useful service' (who also said that the author’s 'qualification to write such a history is beyond question'),7 a history of the solicitors of New South Wales,8 and a compilation of letters of Sir Francis Forbes,9 with one academic noting that Dr Bennett’s editorial notes in this collection 'are a text in their own right.'10
In 2001, Dr Bennett commenced his Lives of the Australian Chief Justices, a remarkable 17-volume series, published by Federation Press, involving original and painstaking research by him into the lives of the 19th century Chief Justices of the Australian colonies.11 They have been described by the late Professor Alex Castles as portraying an 'unparalleled knowledge of the judicial condition of the Australian colonies in the 19th century.' His 17th volume, being Sir Francis Villeneuve Smith: Third Chief Justice of Tasmania 1870-1885, published in 2019, was the final volume in his extraordinary series. In addition, Dr Bennett wrote on various other legal topics, ranging from the office of the Prothonotary,12 the office of the Sheriff,13 the establishment of jury trials,14 the office of King’s Counsel and Serjeants-at-Law,15 a source book for materials on Australian legal history from the 18th to 20th centuries,16 the judiciary’s role in the beginning of responsible government in New South Wales,17 and the significance of the Charter of Justice of New South Wales,18 among many others. Even until a few weeks before his death, Dr Bennett, together with the assistance of his longstanding friend and colleague, Dr J K McLaughlin AM, PhD, was preparing a bicentennial miscellany of essays for the upcoming bicentenary of the establishment of the Supreme Court of New South Wales.
He was a stickler for tradition and clarity in legal history and terminology. As an example, he would regularly point out that what took place in 1788 was not 'European settlement' but rather 'British settlement', the former being a factual and historical misnomer. And, in one of his final articles, published online by the Francis Forbes Society in 2021,19 he questioned the historical accuracy of the claim that (later Sir) James Martin proceeded from his parents’ Parramatta cottage to Sydney daily on foot, there and back in the early 1830s, as well as the decision of placing statuettes of Martin in both Parramatta and Martin Place, writing that 'the time has come to end the perpetuation of the myth of youthful Martin’s supposedly daily 'walks' to and from school in Sydney'. It is worth quoting Dr Bennett’s conclusions on this topic, for they exemplify his fastidious research, as well as his belief that history should not be viewed through 21st century lenses:
'Enough has been put, though much more could be, to demonstrate how far the supposedly daily 'walk' from Parramatta to Sydney and back conflicts with the limitations of reality as it stood around 1830. That, to be blunt, also trivialises the image, intended to be created, of the very great man whose life is under appraisal and recognition. It must be suggested that the 'twin' bronzes need to rise above frippery and not risk tipping the scales too far so as to demean the character of the monumental figure proposed to be honoured. Moreover, should the fable of the 'walking boy' become established, there will be continuing erosion of the truth, manipulation of facts and irresistible exaggeration. Coupled with that is the need to resist the seductive attraction of seeing matters of the 19th century through 21st century eyes and so distorting the true position as to place such a worthwhile project as that of the 'twin' bronzes at risk of resting precariously on unstable foundations.'
Dr Bennett taught in Australian legal history in the University of Sydney and at the University of Technology, Sydney. He was a Senior Research Fellow in the Research School for Social Sciences of the Australian National University, and in 2002 he was appointed Adjunct-Professor in Law at Macquarie University. He was also a contributor to many legal and historical journals, including, inter alia, the Sydney Law Review, Australian Law Journal and the Journal of the Royal Australian Historical Society, and at one point serving as the latter’s president. Dr Bennett’s significant contribution to original historical research led to a Master of Laws and, subsequently, the rarely conferred degree of Doctor of Laws from the University of Sydney. He was also awarded a Master of Arts by Macquarie University. And, in 2007, the honorary degree of Doctor of Letters was conferred upon Dr Bennett by then Pro-Chancellor John McCarthy KC at the Faculty of Arts graduation ceremony at the University of Sydney. Also in 2007, the even more rarely awarded degree of Doctor of Letters was conferred upon Dr Bennett by the Australian National University. Dr Bennett also served as Editor-in-Chief of the Australian Law Journal Reports and Editor-in-Chief of the second and third editions of The Australian Digest. In 1970 he became Director of Research and later an Executive Member of the New South Wales Law Reform Commission.
In 2005, Dr Bennett was made a Member of the Order of Australia in 2005 for services to the law and later made an Officer of the Order of Australia in 2020 'for distinguished service to the law through prolific authorship of biographies of eminent members of the legal profession'. Dr Bennett made a significant contribution to the understanding of Australian legal history. Without his painstaking and meticulous research, much of Australia’s colonial legal history would have been permanently lost or simply forgotten. It is to his credit that future legal historians will be able to further their research into Australian legal history following the strong foundations which he has painstakingly laid over the decades. He was a strong personality with qualities of another era – and the legal world is the poorer without him.
By Carol Webster SC and Daniel Yazdani
* Barrister, 10th Floor St James Hall, FAAL, Treasurer, Francis Forbes Society for Australian Legal History
1. Barrister, 13th Floor St James Hall. J M Bennett, Sir Francis Forbes: first Chief Justice of New South Wales 1823-1837 (Annandale, 2001)
2. J M Bennett, Sir Alfred Stephen: Third Chief Justice of New South Wales (Annandale, 2009) vi.
3. J M Bennett, A History of the New South Wales Bar (Sydney, 1969).
4. R A Woodman, ‘Book Review’ (1971) 15 American Journal of Legal History 140, 160.
5. J M Bennett, A History of the Supreme Court of New South Wales (Sydney, 1974).
6. J M Bennett, Portraits of the Chief Justices of New South Wales 1821-1977 (St Ives, 1977).
7. J M Bennett, Keystone of the Federal Arch: a historical memoir of the High Court of Australia to 1980 (Canberra, 1980).
8. J M Bennett, A History of Solicitors in New South Wales (Sydney, 1984).
9. J M Bennett, ed., Some Papers of Sir Francis Forbes: First Chief Justice In Australia (Sydney, 1998).
10. J Forbes, ‘Some Papers of Sir Francis Forbes: First Chief Justice in Australia’ (2000) 21 University of Queensland Law Journal 133.
11. A list of these and other writings of Dr Bennett published by the Federation Press can be found at https://federationpress.com.au... authors/j-m-bennett/.
12. J M Bennett & R W Bentham, ‘The Office of the Prothonotary’ (1959) 3 Sydney Law Review 47.
13. J M Bennett, ‘The Office of Sheriff – Historical Notes on its Evolution in New South Wales’ (1978) 7 Sydney Law Review 360.
14. J M Bennett, ‘The Establishment of Jury Trial in New South Wales’ (1959) 3 Sydney Law Review 46.
15. J M Bennett, ‘Of Silks and Serjeants’ (1978) 52 The Australian Law Journal 264.
16. J M Bennett & A C Castles, A Source book of Australian legal history: source materials from the eighteenth to the twentieth centuries (Sydney, 1979).
17. J M Bennett, Colonial Law Lords: The Judiciary and the Beginning of Responsible Government (Annandale, 2006).
18. J M Bennett & Mr Justice Else-Mitchell, The Charter of Justice of New South Wales: its significance in 1974 (Sydney, 19749).
19. J M Bennett, ‘Reflections on Sir James Martin’ (Paper, 4 April 2021) https://www.forbessociety.org.... uploads/2016/02/Reflections-on-Sir-James-Martin-04.04.21.doc