Dear Furies, While I hold the Supreme Court of New South Wales in the highest esteem, is it bad that I don’t really care about its bicentenary? I haven’t attended a single event in honour of it. Am I unworthy of my call?

You are right to hold the Supreme Court of New South Wales in the highest esteem. It deserves and, indeed, requires our respect to exist. Any tyrant can enforce order. But a court’s power to dispense justice is derived from the veneration and trust it is afforded by those subject to it. You do not have to look far, or far back in history, to see how fragile our democratic institutions are without that trust and respect.

As for not celebrating its bicentenary, well … ahem … we have not exactly been waving the pompoms either. You see, while we love the Supreme Court, we maintain a deep and abiding distrust of bicentennial celebrations. Specifically, bicentennial celebrations in this country.

We trace the beginnings of this cynicism to The Bicentenary in 1988. Without a trace of embarrassment, many of us, the young Furies included, rallied to the shores of Sydney Harbour on the 26^th of January that year to celebrate the landing of the First Fleet and to mark the two hundred years since the ‘birth’ of ‘our country’. ‘Living together’ was the unironic motto of the festivities. Any allusion to Indigenous art or culture was for purely decorative purposes. To say that the celebrations lacked nuance is a shameful understatement.

Fast forward 36 years and we have another bicentenary. Could we do better?

The celebrations started well. We followed the press releases. We were told that the day ‘marks 200 years of continuity of the rule of law in New South Wales’ and that ‘it heralded an institutional shift from a penal colony with a system of essentially military justice to a settlement with the plenary civil and criminal jurisdiction of the English courts’.^[1]

We revelled in the exotic and sensational. The apocryphal 1935 story of the captured shark that vomited up the tattooed arm of a murder victim was gold. At first, we were unsure how the acquittal of the chief murder suspect – after the chief witness had also been murdered – best exemplified justice in this state. But perhaps that was not the point. Perhaps we were acknowledging a part of our sordid past. Or perhaps we were just acknowledging the exoneration of an entirely innocent shark.

On the day, the ceremony and speeches were respectful and cognisant of continuing Indigenous culture. We did not shy away from the darkest aspects of the court’s history, including acknowledging that, in the same year the Supreme Court was created, martial law against the First Nations peoples of the Wiradjuri was declared. Acknowledging this evil was a good thing. It was mature. It was nuanced.

But did the Supreme Court really herald an institutional shift from a penal colony? What we say now is to advance a nuanced appraisal of that claim.

Yes, the Third Charter of Justice in 1824, by which the Supreme Court was created, was an improvement. It dispensed with the judge advocate of military rank, which was ripe for abuse and, in latter years, was abused.

However, the Third Charter, and the Supreme Court itself, was the product of a royal commission of inquiry into the judicial establishments of New South Wales conducted by a very respectable Mr John Thomas Bigge.^[2] Part of his commission read as follows:

You are aware of the causes which first led to the Formation of the Settlements in New Holland. … these Settlements cannot be administered with the usual Reference to those general Principles of Colonial Policy, … they must chiefly be considered as Receptacles for Offenders, in which Crimes may be executed at a distance from home by punishments sufficiently severe to deter others from the Commission of Crimes, …. So long as they continue destined by the Legislature of the Country to these purposes, their Growth as Colonies must be a Secondary Consideration, and the leading Duty of those, to whom their Administration is entrusted, will be to keep up in them such a system of just discipline, as may render Transportation an Object of serious Apprehension.^[3]

It appears that by 1819, transportation had not become the ‘Object of serious Apprehension’ that it ought to have been: transport lists attached to the commission show a five-fold increase in male convicts transported to the new colony from 1810. Mr Bigge’s commission details how numerous prisoners convicted of even minor transgressions were applying for transportation, which, at that time, appeared preferable to a life of poverty in England.

In his report, Bigge confirmed this sorry state of affairs of justice dispensed by the criminal courts in the new colony since 1810, stating:

… it will be found that, with the exception of some of those that were ordered by the two Criminal Courts of the year 1816, in which Mr. Garling presided as judge advocate, there has been manifested a great degree of humanity and tenderness.^[4]

To address this excessive ‘humanity and tenderness’, Bigge recommended a number of measures, including the establishment of the Supreme Court, with combined civil and criminal jurisdiction, and secondary penal centres at Moreton Bay, Norfolk Island and Port Arthur. These recommendations were implemented.

In the 11-year period between 1826 and 1837, the Supreme Court sentenced 1,300 people to death. ^[5] Those ‘lucky’ to have their sentences commuted were transported to places such as Port Arthur, where conditions and punishments were so harsh, they remain immortalised in film, book and museum as a kind of therapy for the collective trauma they induced.

In his lecture on the bicentenary of Governor Macquarie’s assumption of office, Spigelman CJ said the following of Commissioner Bigge:

There is no doubt that Australia would have developed differently if Commissioner Bigge had not made so comprehensive a set of recommendations to ensure that Australia remained primarily a penal settlement designed to incapacitate British criminals and to deter others.^[6]

It would be inaccurate and ungenerous to describe the Supreme Court of 1824 as a repressive tool of the executive or a symbol of deterrence, now manifested by venomous snakes and spiders, in an early precursor of our current ‘turn back the boats’ campaign.

However, like everything in Australia, the early history of our legal institutions is not rosy or awe-inspiring. What is awe-inspiring is how, despite these difficult and problematic beginnings, these institutions have grown and thrived. Rather than despair, this should give us hope that they have the resilience to survive the problems and difficulties that another two hundred years will no doubt bring.

^ENDNOTES

^{[1] Andrew Bell, ‘On the cusp of a brave new world, treasure the rule of law’, The Sydney Morning Herald (online, 17 May 2024) <https://www.smh.com.au/national/nsw/on-the-cusp-of-a-brave-new-world-treasure-the-rule-of-law-20240514-p5jdhl.html>.}

^{[2] Any man who, on the honour roll, would be referred to as Bigge, John Thomas, must be accorded respect.}

^{[3] Letter from the Earl of Bathurst to Commissioner Bigge, 6 January 1819, which can be found at N Overton, Project Gutenberg Australia (Web Page, 2013) <https://gutenberg.net.au/ebooks13/1300251h.html> (emphasis added).}

^{[4] Report of the Commissioner of Inquiry, on the Judicial Establishments of New South Wales, and Van Diemen’s Land (Report, 21 February 1823) (emphasis added); ibid.}

^{[5] Museums of History New South Wales, Court of Criminal Jurisdiction Guide: How the Court Worked (Web Page, 2024) <;.}

^{[6] Chief Justice Spigelman, ’The Annual History Lecture History Council Of New South Wales. The Macquarie Bicentennial: A Reappraisal of the Bigge Reports’ (Lecture, Sydney, 4 September 2009) <;.}