Issue 16 No.1

Articles

Professor David Clark (Flinders University)

Magna Carta’s Child: The Rise of a Rule of Law State in New Zealand 1840-2015

Magna Carta is at once a medieval document and the progenitor of a constitutional tradition. The paper shows that the Great Charter has survived because it was adapted by later generations, and that these generations, in this case in New Zealand, were able to adjust Magna Carta to modern circumstances and to use it to create constitutional arrangements not in contemplation in 1215. Using the digital collection of New Zealand Statutes since 1840, and the New Zealand National Library’s digital newspaper collection, the legal and political uses of Magna Carta in creating modern constitutional doctrines and institutions with distinctive New Zealand characteristics is both set out and accounted for. The transformation of the Charter from a medieval document into a modern rule of law state that embodies values suggested rather than expressly stated in 1215 is also a tribute to the flexibility of the common law tradition that survives because it is able to change.

Associate Professor Chris Dent (Murdoch University)

The Rise in References to ‘Knowledge’ in 19th Century English Law

These days, courts refer to the knowledge of parties in disputes regularly. This was not always the case. It was only in the 19th century that judgments increasingly became to be based, explicitly, on what was known by the defendants (and to a lesser extent, other parties). This article uses examples from the English law of the time to show how knowledge began to be referred to in the areas of (amongst others) intellectual property, negligence and the criminal law – areas in which the law was not previously couched in terms of knowledge. The observed changes will then be discussed from two perspectives – first, in terms of the relationships between the law, as a discipline, and knowledge; and second, in terms of the shifts in the discipline’s perception of the individuals that came before it.

Dr Caroline Dick (University of Wollongong)

Anti-Shouting Law: A War Time Sumptuary Impulse Tied up with Slouch Hats and Khaki

Many people think of sumptuary law as an archaic form of government intervention that targeted the personal lives of medieval people, and has no significance in modern times. This article challenges these views, and suggests that sumptuary intervention was particularly ‘alive’ in Australia during the First World War. This wartime period was one of national crisis and was marked by numerous social and economic anxieties, particularly about national security and the morality of Australian citizens. This article suggests that these social and economic anxieties were similar to those social and economic anxieties that prompted the creation of the English sumptuary laws of the early modern period.

In the early modern period, sumptuary laws were not limited just to the regulation of personal appearance through rules relating to dress. They also targeted the private consumption of food and alcohol, social ceremonies, entertainment and economic wealth. Whilst these laws often aimed to limit or regulate the private expenditure of citizens, they were also concerned with the social manifestations of consumption and always involved some combination of social, economic and moral regulation. Drawing on contemporary discourse, the article argues that the Anti-Shouting law that was proposed in Australia during the latter years of World War 1 was clearly a sumptuary measure and analogous to those interventionist laws of the early modern period. This sumptuary measure not only focused on the wartime control of alcohol consumption practices but was also entwined with an impulse for moral regulation that operated in response to wider government concern for Australia’s public well-being and economic future.

Professor Warren Swain (University of Auckland)

Low Value Civil Claims in Early 19th Century Australia

Many modern civil claims are for relatively small sums of money. The same was true in early nineteenth century Australia. The position there was complicated by the way in which the court system was evolving at the time. With the demise of the Court of Civil Jurisdiction in 1814 the jurisdiction over small claims began diversify. The Court of Requests which opened for business in New South Wales in 1824 was modelled on an English equivalent. It proved to be extremely popular. For a brief period before it was abolished in 1847, the court sat in what is now Brisbane. A record of the court survives in the Queensland State Archives and provides a useful insight into the nature of small claims litigation at the time. As a result, it is possible to analyse the number, type and amount of claims. Following the abolition of the Court of Requests small claims came to be dealt with by Magistrates. After separation a system of District Courts was created.

Issue 16 No.2

Articles

Professor Megan Richardson (The University of Melbourne)

A Display of Questionable Taste: False Labelling of a Prize for Pickles at the International Exhibition 1862

In the English case of Batty v Hill decided in 1863, the plaintiff objected to the defendant’s labelling of his pickles as ‘Prize Medal, 1862’, pointing out that the representation was false. The fact that these words were stamped in a conspicuous manner on the cases in which the defendant exported his pickles to the Australian colonies, appeared to be a source of particular grievance to Batty – a reputable pickle merchant who had been granted a medal in the category of pickles and preserved fruits at the 1862 International Exhibition of the Industrial Arts and Manufactures in London, and who also exported to colonial markets. There was no disagreement that Hill’s assertion of a prize medal won at the same Exhibition was a deliberate lie. Yet the application for an injunction was unsuccessful. The Vice-Chancellor Sir William Page Wood said that ‘[i]t is obvious that this Court cannot interfere simply on the ground that this is a misrepresentation’ and ‘[the defendant] must be held entitled to use these labels, false though they be, if they do not interfere with the plaintiff’s rights’.  In short, the fact that the plaintiff could demonstrate no injury to his ‘rights’ flowing from the defendant’s false labels meant that he had no basis to obtain a remedy. This article considers why it was so obvious that a misrepresentation was not sufficient for a court to grant a remedy in 1863.  In investigating this question, the author concludes that it may simply have been that deceptive trading was widely practiced in Victorian markets, and especially when it came to the distant colonies, this being a time when, as the Vice-Chancellor noted, quoting Horace, ‘rem facias, rem, si possis, recte; si non, quocunque modo, rem’ (make a fortune honestly if you can; if not, make it by any means).

Dr Sharon Rodrick (Monash University) and Dr Adiva Sifris (Monash University) 

100 Years of Open Justice in Family Law Proceedings in Australia

This article recounts the history of the principle of open justice in family law proceedings in Australia. It takes as its starting point the seminal case of Scott v Scott, decided by the House of Lords in 1913, in which open justice reached its zenith, and traces how the strength of that principle in the context of family law proceedings has fluctuated in the 100 years since the Scott case was decided. These fluctuations it is argued, have been the product of attempts to accommodate competing public interests, such as the perceived need to protect public morality and, more recently, the desire to safeguard personal privacy.

Dr Janet Ruffles

The Management of Insanity Acquittees in Victoria: An Historical Perspective on the Operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) 

The introduction, in 1997, of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’) marked a dramatic reform of the common law system governing the detention, management and release of persons found not guilty by reason of insanity in Victoria. The Act abolished the Governor’s pleasure system and set out the law and procedure for determining whether a person is unfit to stand trial and whether a person is not criminally responsible for an offence due to mental impairment. Additionally, the CMIA established new procedures for the supervision and management of people found unfit to stand trial or not guilty by reason of mental impairment, a statutory defence established by the Act which abrogated the common law defence of insanity.  This article provides a detailed discussion of the law regarding the insanity defence and the consequences that flow from the verdict, including an overview of the history of the insanity defence, the genesis of the CMIA and a summary of the main legislative changes introduced by the Act.  It examines the operation of the CMIA in light of its underlying principles and evaluates the extent to which the Act has achieved its aims, before assessing the desirability of the proposed reforms. 

Book Extract

Leonora Ritter and Jim Windeyer

William & Mary Windeyer: Law, Politics and Society in Colonial New South Wales (Australian Scholarly Publishing, 2016)

This book extract provides a glimpse into the world of Sir William and Mary, Lady Windeyer.  Sir William and Mary, Lady Windeyer were a significant couple in 19th century New South Wales, he in politics and law, she as advocate for the rights of women and children. In politics, William was close to Henry Parkes, especially on education for both girls and boys, and he worked for women's equal rights in property and divorce. As a judge he was often controversial in his conduct of criminal trials, but in other cases his judgements were highly regarded and he not unreasonably aspired to a seat on the Privy Council. Mary advocated in similar fields, as president of the Womanhood Suffrage League of NSW and the Crown St Women's Hospital, and in fundraising for the Sydney University Women's College and promoting the foster care of children through the foundation of the Boarding Out Society.

Book Review

Marc Trabsky (La Trobe University)

Simon Smith (ed), Judging for the People: A Social History of the Supreme Court of Victoria 1841-2016 (Allen & Unwin, 2016)

This book review provides an overview of the recently published an copiously illustrated Judging for the People: A Social History of the Supreme Court 1841-2016. Commissioned by the Chief Justice, the book contains robust contributions from thirteen distinguished law and history scholars. Together they canvass topics as diverse as the pioneering and influential judges themselves, the first lawyers, the unsung heroes of the court, the changing nature of the courtrooms and buildings, the divorce jurisdiction, the death penalty, the circuit court, forensic medicine and the role of the court reporter. The research by these scholars brings a new and different perspective to the place of the Supreme court in the community.