The origins of a free press

Chief Justice Spigelman's inaugural Australian Press Council Address discussed the clash between authorities and the press in NSW in the 1820s. JACK R HERMAN reports.

The NSW Chief Justice, the Hon. James Spigelman AC, delivered the inaugural Australian Press Council Address on 20 November in the Banco Court of the NSW Supreme Court, before an audience of about 150. The Address is to become an annual event, with the Council inviting a prominent speaker to present a talk related to the freedom and the responsibility of the press. The Chief Justice's address was entitled, The foundations of the freedom of the press in Australia, and concerned events, mainly in Sydney in the 1820s that set the scene for the clashes over the succeeding two centuries between government and the press, over its responsibility and between the executive and the judiciary over the press's freedom.

Spigelman started with the tale of two privates, Joseph Sudds and Patrick Thompson, who, in 1826, stole some goods in the expectation that they would be transported, a fate they thought preferable to continued service in the army. Lieutenant General Ralph Darling, Governor of NSW, and personifying executive government in those days before any representative assembly, set aside the court's sentences on the pair and ordered their flogging, to be followed by assignment to a chain gang. Sudds was critically ill at the time (unknown to the governor) and died five days after the punishment was inflicted. The incident was reported stridently by the then new, independent newspapers of the colony.

The official organ, The Sydney Gazette had been joined by The Australian, first published (by William Charles Wentworth and Robert Wardell - both barristers) in 1823 and by The Monitor, owned and published by Edward Smith Hall, an ex-missionary with a varied past. The Australian's first editorial stated its approach:

A free press is the most legitimate, and, at the same time, the most powerful weapon that can be employed to annihilate influence, frustrate the designs of tyranny, and restrain the arm of oppression.

Governor Darling had a low opinion of the publishers of both newspapers, Wentworth and Wardell for their political program and Hall for his evangelical zeal.

Spigelman noted that, "The day Sudds died, The Australian commenced its coverage with a blistering attack on the Governor, the system that permitted action of this character to occur and raised serious doubts about the legality of the Governor's conduct. The Monitor, which had long campaigned against the brutality of the treatment of convicts, also took up the cause."

At this stage the governor belatedly sought legal advice, including an advisory opinion from the Supreme Court, then only two and a half years old. Sir Francis Forbes was the Chief Justice and in his advice (given jointly with another Justice) concluded, in Spigelman's words, that "Darling had in effect set aside a sentence and imposed a new sentence by executive fiat. This was the assumption of a judicial role." The underlying basis of their opinion was the assertion of a clear separation of functions between the judiciary and the executive. "It was the clearest possible assertion of the application of the rule of the law to the colony and of the independence of the judiciary", said Spigelman.

By way of further background to the clash between the governor and the press, with the Supreme Court in the middle ("the most serious conflict between the judiciary and the executive that has ever occurred in Australian history"), Chief Justice Spigelman outlined how trials were conducted in the 1820s. "There was provision for juries at the time, but such juries, far from being constituted by peers of an accused, were constituted by seven military officers who sat in uniform." Darling was the commander of the troops who constituted any jury and the instigator of many of the libel actions they ruled on.

Until this point of time, Darling had allowed the press to develop without interference from the executive. But, in the wake of the Sudds Thompson affair, the conflict developed, "[f]uelled ... by the poisonous banalities of small town politics ... [N]evertheless [there were] fundamental principles at stake involving the rule of law, the independence of the judiciary and the freedom of the press. Within a few years these principles were confirmed in a manner and with a force of which we remain the beneficiaries to this day."

Spigelman outlined how, in England. the political use of actions for libel was decisively wound back by the enactment of Fox's Libel Act of 1792 which restored the general issue to the jury but, in NSW, the peculiar composition of the jury was such as to encourage politically motivated libel actions to proceed. Within a few years there would be a steady stream of such proceedings.

In October 1825 the Attorney-General Saxe Bannister had initiated a libel action against The Sydney Gazette which been dismissed by the jury. Forbes' summing-up was noteworthy, said Spigelman, especially for this passage:

It is, however the right of the public to discuss the acts of a public officer, provided it be conducted within the legitimate bounds of fair discussion, but if, on the contrary, it degenerates so as to impute bad motives and wicked conduct, it is then no longer fair, it is libellous.

Darling, who regarded any opposition as insubordination, proposed legislation which would establish a licence system for newspapers, provide for the forfeiture of a licence upon conviction for any blasphemous or seditious libel and confer on the Governor an unconfined discretion to revoke a licence. A second Bill would impose a stamp duty on newspaper sales.

Under the New South Wales Act, legislation required a certificate from the Chief Justice to the effect that the legislation was not repugnant to and was consistent with the laws of England. Despite the fact that Chief Justice Pedder of the Supreme Court of Tasmania had certified similar legislation, Forbes refused to certify the crucial provisions of the Bill. He rejected the prior restraint of a licensing system for newspapers. He said:

By the laws of England, the right of printing and publishing belongs of common right to all His Majesty's subjects, and may be freely exercised like any other lawful trade or occupation. So far as it becomes an instrument of communicating intelligence and expressing opinion, it is considered a constitutional right, and is now too well established to admit of question that it is one of the privileges of a British subject.

Sir Francis Forbes went on to reject the provision for a power to revoke a licence, on the basis that it empowered the Governor to revoke a licence without giving a hearing and, indeed, to do so in circumstances where he would be a judge in his own cause.

Spigelman noted, "In this Newspaper Acts Opinion, as in his judgments, it is noticeable that Chief Justice Forbes felt quite comfortable with a discourse employing the terminology of 'rights' ... Over the course of the nineteenth century common lawyers stopped using the language of rights, to the extent that the discourse has only been revived in common law countries in recent times by means of the adoption of international instruments, the provisions of which can be traced back, historically, to seventeenth and eighteenth century British texts.

"To a narrow-minded military man like Darling, talk of rights was poppycock. Forbes' rejection of his plans created a decisive and irreparable conflict between the two men."

The second piece of legislation which Darling proposed was the imposition of a stamp duty. At first, Forbes indicated an intention to issue a certificate but the printed form did not contain the precise quantum, but it was claimed that the amount of 4d had been inserted in pencil on the text which Forbes had approved. Forbes took a month to state that the Act, which had been proclaimed, did not have a valid certificate. Forbes indicated that the licensing Bill, which he had refused to certify, was intended to silence the opposition newspapers. He characterised the stamp duty Bill as a measure "to effect the same end by secret and disguised means".

Chief Justice Spigelman also introduced Justice James Dowling who would, in due course, serve as the second Chief Justice of the Supreme Court. He was of an altogether different disposition to Forbes, insisting on greater formality in his courts. Dowling, the son of a press reporter, who had himself reported on Parliament before being called to the bar in London, would not prove to be as sympathetic to the press as Forbes.

Spigelman continued, "With the primary provisions of his legislative attack in tatters, Darling turned to the use of prosecution for libel as a means of controlling the press. ... Such a course was reinforced by that part of the legislation which Forbes had accepted would not be repugnant to the laws of England and for which, accordingly, he issued a certificate. The new Act required any newspaper to identify its ownership. Further, it conferred on the Court a discretion to order banishment after a second conviction for seditious or blasphemous libel."

The first prosecution for seditious libel was taken against Wardell for an article in The Australian containing a defamatory attack on the Chairman of the Court of Quarter Sessions about the way he had conducted a trial. It was dismissed on technical grounds due to the incompetence of the Crown Law officers laying the charge. In September 1827, Wardell was back before the Court on a charge of seditious libel of the Governor himself. The case ended in a hung jury. A third prosecution of Wardell again alleging libel of the Governor also resulted in a hung jury. The outcomes of the trials were fascinating, especially considering that Darling was the jurors' commander. In part, the hung juries resulted from "the favourable directions given by Forbes in his summing-up to the two juries".

As a result of the three failed prosecutions, there were no such proceedings during 1828.

At the conclusion of the two trials, Chief Justice Forbes and Justice Stephen wrote a joint letter to Darling on 31 December 1827, in part criticising "the semi-official Sydney Gazette, suggesting that its biased reporting of the trials constituted an improper attempt to put pressure on the Court, particularly the jury, reported Spigelman. "Referring to the Gazette as a 'Government paper', their Honours suggested that once the Attorney had instituted the proceedings such a publication should have refrained from publishing material which might prejudice the case. There seems little doubt that The Sydney Gazette was seeking to put pressure on the military officers of the jury."

The judges also criticised the independent press criticism of the press. Before a case in which Wardell and Wentworth were seeking to take proceedings for criminal libel against the Colonial Secretary for certain official publications in The Sydney Gazette, they said:

We avail ourselves of the first opportunity which has been afforded us, of expressing our entire disapprobation of the style and manner of discussing public measures in this Colony. It is impossible to say that the press has not transgressed the bounds of fair and temperate discussion ...

Spigelman noted, "Forbes was increasingly disturbed by the tone and content of the press which he described as ... "licentious". However, it is clear that he had a strong belief in the role of vigorous public debate. ... Nevertheless, at first, and to substantial degree throughout, he was a champion of freedom of the press. I would not wish to create the impression that Forbes partook in anything like first amendment jurisprudence." He quoted one of Forbes' extra-judicially writings:

... A free press is not quite fitted to a servile population; it is excellent, indispensable in a free state because of its tendency to counteract that eternal propensity of our social natures to make slaves or dupes of one another, but for that reason perhaps, it is not suited to a state of society, where one half of the community are worked in chains by the other; the direct tendency of the press is, in short, to equalise mankind; and the direct policy of our little state is only an enlarged prison discipline; the first is to set all free; the last to hold one half in servitude ... [I]f you take away the freedom of public opinion upon matters of government, you take away a legal right; necessity you will say justifies it; then the limit of that justification is the necessity which compels it; it should go no further.

According to Spigelman, the next phase of confrontation between the executive and the press began in church. Archdeacon Scott, head of the Anglican Church, was a Government House insider. The Monitor's editor Hall was a religious man, an ex-missionary. Because of its proximity to Darling's pew in St James' church, the Archdeacon locked the pew which Hall rented. This led to a piece in The Monitor in July 1828, attacking Scott. Hall wrote:

This is the age of cant - cant political and cant religious. Thus we have Ministers of Jesus Christ thrusting their parishioners out of their pews, and then administering the sacrament.

In subsequent civil litigation Hall would, eventually, be vindicated. But an initial action in trespass against him was successful. Nominal damages of one shilling were awarded. When Hall proceeded against the Archdeacon for trespass, he was awarded damages in the amount of twenty-five pounds, plus costs. Hall's attack on the Archdeacon in The Monitor extended to Scott's attitude to religion, his involvement in politics, his bias against emancipists and the allegation that the Archdeacon "was not a man of peace".

Hall was prosecuted for criminal libel before Judge Dowling and a military jury. He conducted his own defence, relying in part on the fact that the Archdeacon was a public figure on a government salary. Anticipating New York Times v Sullivan, Hall argued:

A public officer was public property, and he must submit his public actions to the test of public criticism.

Hall would later complain bitterly about judicial bias in the summing-up. Says Spigelman: "There is little doubt that the summing-up was not as favourable as Forbes would probably have given. Specifically, there was no indication to the jury from the bench that they should set aside their military status and act as if they were jurors in England, although Dowling would give such a direction in subsequent cases. The tone of Dowling's summing-up was clearly in favour of conviction. He suggested that, as a minister of religion, the Archdeacon was particularly vulnerable to any libel which lessened his character; that the press was entitled to liberty but not to 'licentiousness'; that a 'candid and temperate discussion' of public affairs was acceptable; but that public figures need to be protected from 'shafts of malice' and from 'personal vituperation'.

"The issues raised are with us still," said Spigelman.

Hall was convicted. In sentencing him, Dowling observed that the press of the colony had been guilty of excesses against which no action had been taken. He expressed in the name of "the Court" a "deep sense of pain and regret that so valuable an organ of public welfare should have been abused".

Further libel actions emerged in 1829 when the Sudds Thompson affair was suddenly revived. The semi-official Sydney Gazette published documents with the assertion that they cleared Darling. This infuriated The Australian and The Monitor. The new owner of The Australian, Attwell Hayes, wrote in an editorial:

... We can never believe and affirm that the author and ostensible executor of Sudd's punishment, and which terminated in his death, is a fit person to rule over a British Colony.

In the proceedings for seditious libel, Hayes was represented by W C Wentworth. The trial proceeded before Mr Justice Dowling and a military jury. "On this occasion," noted Spigelman, "Dowling gave a balanced direction to the jury, noting their peculiar position as military officers. The Australian newspaper, itself, described his summing-up as 'a most luminous and impartial charge' and said that the finding of guilty had astonished most people.

The Full Bench of the Supreme Court heard an objection to competency of the jury. Forbes CJ and Dowling J, with Stephen J dissenting, rejected the attack and recorded a conviction. Hayes spent a period in prison, but his fine was paid by public subscription. Throughout his six months imprisonment, Hayes continued to edit The Australian.

This prosecution was followed by what the current Chief Justice calls, "a systematic campaign launched against Hall of The Monitor". By the end of 1829 he would be convicted on six separate charges. These included seditious libel of the Governor; and criminal libel of the commandant at Port Macquarie. On both occasions, the jury were strictly directed that truth was irrelevant. In four criminal libel prosecutions in December, Hall was found guilty with respect to allegations he made against the Governor, the Colonial Secretary and two lesser officials.

Spigelman observed: "Actions in libel were to become a Sydney sport. Hall himself took proceedings for criminal libel against the editor of the semi-official Gazette, as did Wentworth. Sydney's position as a world capital of defamation litigation was established in 1829."

Darling's attacks on the press were not limited to libel actions. He sought to muzzle the press by exercising the full weight of his discretionary authority, in some respects, as the Court subsequently found, improperly. He sought, for example, to remove newspaper employees who were assigned convicts. All private enterprise in Sydney depended, in large measure, on the labour of such convicts. Their withdrawal would cripple any business. In March 1829 a journalist on The Australian was at the Supreme Court taking notes of a trial when a constable entered the Court and took him away to the prisoners' barracks, his assignment as a convict having been withdrawn. On the same day Hall's foreman printer at The Monitor was summoned by the Superintendent of Convicts for the same purpose. In taking such actions, Darling was ignoring a ruling of the Court, which later quashed a prosecution of Hall for harboring an escaped convict, arising from such an attempt to withdraw assigned laborers.

In January 1830 Darling convinced the Legislative Council to approve a Bill that made banishment upon a second conviction for seditious libel automatic and was not in the discretion of the Court, i.e. mandatory sentencing.

But, according to Spigelman, events were turning against Darling. On advice of his British ministers, the King disallowed the NSW Act to make banishment mandatory. Darling was criticised in dispatches from London for allowing the situation to get out of control and, specifically, for seeking to interfere with free speech to a degree now regarded as unacceptable. Any proceedings against the press should be, according to the Secretary of State for the Colonies, confined, under the pressure of extreme necessity, to the occasional exigency of some particular case.

In February 1831, Darling released Hall from prison, two years early. When Darling's six year term expired, his appointment was not renewed and he left Sydney on 22 October 1831. Hall announced the event in The Monitor in large capitals on its front page:

HE'S OFF!
THE REIGN OF TERROR ENDED.

A few years later, in 1835, when Sir Francis Forbes had to leave the Colony, not least for his health, the then new Sydney Herald poured scorn on the proposal that a public meeting be held to commemorate his contribution. The Herald proclaimed:

We admit that every Convict in New South Wales is bound, in common gratitude, to sign an address to Mr Forbes ... but ... the body of respectable Emigrant Colonists owe him no such obligation.

Spigelman notes: "And so, following quickly on the creation of the Sydney tradition for defamation litigation, another grand Australian tradition was born: the short memory of the media."

The Chief Justice noted that the effect of the law of libel on freedom of the press has been the subject of debate in NSW for over 170 years. "It is surprising how many of the issues and arguments were already current in the 1820s. One thing is, however, worth acknowledging. The contribution of the first judges of this Court, particularly of the first Chief Justice, to freedom of the press was substantial and worthy of commemoration."

He also pointed out that many institutions in NSW were created quickly and developed a distinctive way, including the rule of law, the independence of the judiciary, supported by a vigorous and independent bar, and freedom of the press, driven by cantankerous editors.

JACK R HERMAN

[A transcript of the speech can be found on Chief Justice Spigelman's page on the NSW Supreme Court website. There is a link to the speech on the "What's New" page of the Press Council's website.

A journalism student from the University of Technology, Sydney, Katrine Narkiewicz, who attended the Address, has linked the Chief Justice's remarks more fully to contemporary developments in libel law and the discussion of 'rights'. Her article is also published on this site.]

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