Croucher on The Murder at Agnes Banks

John Croucher, Macquarie University, has published The Murder at Agnes Banks: Unravelling Truth, Lies, and 19th Century Justice.

The setting for a murder that took place in the early days of the New South Wales penal colony in Australia was the regional town of Agnes Banks. Beginning with an outline of the transported convicts William Williams from England in 1798 and Julia Leahy from Ireland, the paper follows the life of their daughter, Mary Ann, who married the unrelated Robert Williams in 1840, who had the distinction of having all four grandparents as convicts. Some forty years later, in 1881, the now mentally challenged Robert was charged with murdering a neighbour, William Freeman, and was committed to an insane asylum where he remained for the rest of his life. The research reflected in this paper shows that there were numerous flaws in the prosecution's case, which was treated as open and shut. Robert had pleaded not guilty, and there was every chance he was correct. This paper examines the lead-up to the trial and the questions that should have been asked to avoid a possible miscarriage of justice.

Download the essay from SSRN at the link.

Plater on Poisoning, Women, and Murder in 19th Century Australia @Adel_Law_School

David Plater, South Australia Law Reform Institute, University of Adelaide Law School, is publishing 'Assuredly There Never Was Murder More Foul And More Unnatural'? Poisoning, Women And Murder In 19th Century Australia in volume 25 of the Canterbury Law Review (2019). Here is the abstract. 

This article examines crimes committed by women involving the use of poison, notably upon their husbands, in 19th century colonial Australia. It draws on the extensive press archives of the period to determine if the historical and British perceptions and experiences of female poisoners of the 19th century were translated to 19th century Australia. The notion of the supposedly devoted wife stealthily poisoning her unsuspecting husband aroused particular revulsion and was viewed as a threat to social order and as the ultimate betrayal of the female role. Women accused of poisoning their husbands might therefore expect an uphill task within the male dominated criminal justice system of the period in escaping conviction and, if convicted, were unlikely to be regarded with sympathy and as worthy of a grant of mercy. However, this article suggests that the reality in colonial Australia was subtler and more complex than the hostile and often exaggerated perception of female poisoners might indicate. Women accused of capital crimes (including murder) involving poison upon their husbands had every expectation of acquittal and, even if convicted, such offenders were still often regarded with sympathy and might even be spared the “last extremity of the law”. 

The full text is not available from SSRN.

Boyd on Imprisonment for Debt in Colonial Victoria, 1857-90 @jbjodieboyd

Jodie Boyd, Centre for Urban Research, RMIT University, has published 'Contrary to the Spirit of the Age': Imprisonment for Debt in Colonial Victoria, 1857–90 at 42 Melbourne University Law Review 737 (2019). Here is the abstract.

The reintroduction in 1857 of imprisonment for debt in colonial Victoria flew in the face of international momentum for its abolition. In its criminalisation of debt and poverty, the Fellows Act 1857 (Vic) (21 Vict, No 29) also defied the rapid advancement of democratic and egalitarian principles in the fledgling colony. Frequently referred to as ‘gross class legislation’, the law was used unabashedly to target poor small debtors, leaving ‘mercantile men’ with significant debt untroubled by the prospect of a debtors’ gaol. Despite consistent and broad opposition to the Fellows Act, its advocates resisted repeated attempts to abolish or meaningfully amend it. It is argued here that the law, and its survival against the ‘spirit of the age’, can be understood as part of a broader story of conservative resistance to the democratic innovations that threatened the power of the Victorian mercantilist establishment.

Download the article from SSRN at the link.

Thornton on Challenging the Legal Profession a Century On: The Case of Edith Haynes @ANU_Law

Margaret Thornton, ANU College of Law, is publishing Challenging the Legal Profession a Century On: The Case of Edith Haynes in volume 44 of the University of Western Australia Law Review (2018). Here is the abstract.

This article focuses on Edith Haynes’ unsuccessful attempt to enter the legal profession in Western Australia. Although admitted to articles as a law student in 1900, she was denied permission to sit her intermediate examination by the Supreme Court of WA (In re Edith Haynes (1904) 6 WAR 209). Edith Haynes is of particular interest for two reasons. First, the decision denying her permission to sit the exam was an example of a ‘persons’ case’, which was typical of an array of cases in the English common law world in the late 19th and early 20th centuries in which courts determined that women were not persons for the purpose of entering the professions or holding public office. Secondly, as all (white) women had been enfranchised in Australia at the time, the decision of the Supreme Court begs the question as to the meaning of active citizenship. The article concludes by hypothesising a different outcome for Edith Haynes by imagining an appeal to the newly established High Court of Australia.

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Scardamaglia on A Legal History of Lithography @abscard @GriffLawSchool

Amanda Scardamaglia, Swinburne Institute of Technology, has published A Legal History of Lithography at 1 Griffith Law Review 1 (2017). Here is the abstract.

Charles Troedel (1835–1906) was a master printer and lithographer and founder of the firm Troedel & Co. He was also the forgotten face behind the production of much of Australia’s earliest existing and surviving advertising material including posters, labels and other visual ephemera. These works, many of which were registered for colonial copyright and trade mark protection, provide a graphic history of nineteenth-century Australia, speaking to the prevailing state of commerce, culture, social trends and colonial norms. Inexplicably, Troedel’s role in the production of this capsule history has been overlooked. The legal dimension to this history and the relationship between lithography and intellectual property law has also been overlooked – in terms of the stylistic evolution of commercial signifiers and the legal mechanisms which served to protect these graphical expressions. This article uses Troedel’s archive of lithographs as the proxy through which to examine how lithography facilitated and shaped the production of early copyright and trade marks in Australia and more specifically, how lithography, as the technological arrangement mediating early colonial Australian society, was responsible for transforming advertising in nineteenth-century Australia, and the legal categories under which such advertising was defined.

Download the article from SSRN at the link.

Biber on The Archival Turn in Law: The Papers of Lindy Chamberlain @UTSLaw

Katherine Biber, University of Technology Sydney, Faculty of Law, has published The Archival Turn in Law: The Papers of Lindy Chamberlain in the National Library of Australia at 36 Sydney Law Review 277 (2018). Here is the abstract.

Lindy Chamberlain is the victim of Australia's most notorious miscarriage of justice; in 1982 she was wrongly convicted of the murder of her baby daughter, Azaria. In the decades following her exoneration, Lindy Chamberlain-Creighton, as she is now known, came to an arrangement with the National Library of Australia to care for the papers she had accumulated as a result of her daughter's death and the legal processes that followed. This article examines the 'Chamberlain Papers' through the lens of materiality and scholarship associated with the 'archival turn' in the humanities, social sciences and information sciences. This approach affords an understanding of documents as objects, artefacts and technologies. Working materially with documents provides new opportunities for legal scholars to understand files, papers, recordkeeping and bureaucracy, and gives legal significance to papers created outside the law.

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Biber on Evidence in the Museum: Curating a Miscarriage of Justice @UTSLaw

Katherine Biber, University of Technology Sydney, Faculty of Law, is publishing Evidence in the Museum: Curating a Miscarriage of Justice in Theoretical Criminology (2018). Here is the abstract.

After the conclusion of criminal proceedings, criminal evidence sometimes survives in what is described here as an afterlife. In its afterlife, criminal evidence is preserved in various locations; this article explores the museum as a repository for evidentiary exhibits. It examines the case of Lindy Chamberlain, the victim of Australia’s most notorious miscarriage of justice, and the evidence that has survived since her exoneration. Drawing upon interviews with Chamberlain herself, and also the curator of the Chamberlain collections at the National Museum of Australia, this article examines the challenges posed by curating a wrongful conviction.

Download the article from SSRN at the link.

Hooper on the Historical and Legal Limits of Arbitrary Government Decision Making @SydneyLawSchool

Grant Robert Hooper, University of Sydney Law School, has published From the Magna Carta to Bentham to Modern Australian Judicial Review: Themes of Practicality and Spirituality at 84 Australian Institute of Administrative Law Forum 22 (2016). Here is the abstract.

This article considers the interplay or balance between a need to allow the government to govern and the notion that law contains a substantive content to protect the individual from arbitrary government decision making. To illustrate that this search for balance is not new, and despite 800 years is not resolved, this paper starts with the Magna Carta but then proceeds to consider influential historical figures chosen for the impact they have had, and continue to have, on the modern understanding of what limits can and should be imposed on government and how these limits may be legitimately applied by the judiciary. The historical figures chosen are Lord Coke, Blackstone, Dicey, Bentham and Austin. They in particular highlight what might be described as some of the original and core underlying values that shape the judicial response to Parliament’s modern efforts to increase governmental power. In this regard, it will be contended that while modern judicial review is essentially practical, there persists a touch of spirituality and without understanding this it is not possible to appreciate the balance that the High Court so often seeks to achieve between increased governmental power and protecting individuals from arbitrary government decision making. This “balance” will be explored by examining some examples of the modern form of the Magna Carta’s “law of the land” or “due process”, natural justice. More specifically it will touch upon three well-known modern developments, being: the judiciary’s re-birth, defence, reformulation and re-badging of natural justice; the constitutionalisation of judicial review; and the adoption of a broader “purposive” approach to statutory interpretation generally.

Download the article from SSRN at the link.

Lipton on the Transplant and Adaptation of Company Law in Colonial Victoria, 1850-1900

Phillip Lipton, Monash University, Department of Business Law & Taxation, has published The Transplant and Adaption of Company Law in Colonial Victoria 1850-1900. Here is the abstract.

This paper deals with the transplant and adaption of company law in the Australian colony of Victoria during the second half of the nineteenth century. It seeks to place the development of company law in Victoria in its economic and institutional contexts so as to inform a consideration of the circumstances that are conducive to successful legal transplants. The gold mining industry was a particularly important driver of economic development and prosperity. However the availability of resources may be either a blessing or curse. In the case of nineteenth century Victoria, the extraction of gold was a decided blessing due to a number of favourable institutional factors including the successful transplant of English company law which facilitated the formation of gold mining companies and the necessary large-scale investment. An important factor in this success was the preparedness of the legislature to respond to the needs of the wider business community and especially the gold mining industry. This paper then examines some of the significant innovations that assisted the gold mining industry, in particular the introduction of the no liability company and other later investor protection innovations that modernised company law.

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Waugh on The Judges and Their Court 1852-1900 (Victoria, Australia)

John Waugh, Melbourne Law School, has published The Judges and Their Court 1852–1900 in Judging For the People: A Social History of the Supreme Court in Victoria 1841-2016) (Simon Smith, ed., Sydney: Allen & Unwin, 2016). Here is the abstract.

The Supreme Court of the new colony of Victoria was born in the midst of the gold rush. As population soared, cases poured into the court at a rate the judges could barely handle. Compared with the labour of clearing that avalanche, the court’s history for the rest of the century was a long anti-climax, as social and economic changes that are yet to be fully explored reduced its work to a smaller number of longer cases. On the bench, migrants from England and Ireland began to make way for judges born and educated in Australia.

Download the essay from SSRN at the link.

Bond and Greenleaf on Copyright Duration in Australian Law, 1869 to 2014

Catherine Bond, University of New South Wales, and Graham Greenleaf, University of New South Wales, Faculty of Law, have published Copyright Duration in Australia: 1869 to 2014 at 25 Australian Intellectual Property Journal 155 (2015). Here is the abstract.

One of the most significant features of any copyright statute is the duration of the rights granted to works and subject matter other than works pursuant to that law. The most "appropriate" length of copyright also continues to be a recurring theme in legislative, policy and academic debates. However, despite both the significance of and interest in the term of copyright, there has been little empirical evidence presented on how long, in light of both statutory term and life expectancies, copyright will likely protect a work. This article provides a historical account of both the duration of copyright and its various extensions, from the introduction of the first colonial copyright statute through to today. It reveals that, while multiple legislative extensions have lengthened the term of protection, continual increases in life expectancies have also added to the duration of copyright, to the point where, today, copyright will likely protect a work for well over 100 years. The paper concludes that it is worth questioning whether IP terms are out of alignment when one form of creation – patents – only warrants a 20 year period of protection whereas another – copyright – garners 120 years. The haphazard legislature approach to copyright terms identified in this article needs to cease, and a more considered approach taken. It feels akin to science fiction that, today, copyright in a work created by a 35 year old today will generally not expire until well after the deaths of a generation that is yet to be born, and extend for more than a century. Furthermore, given the current creations found to be "literary works", this would apply to, for example, a computer program, the practical utility of which will cease over a century before its copyright expires, and where its literary or artistic appeal never existed.

Download the article from SSRN at the link.

The NSW Customs Department and Frederick Garling

Diane Kraal, Monash University, Department of Business Law and Taxation, has published Customs Revenue in the British Colony of New South Wales 1827-1859. And Inquiries Concerning Frederick Garling, Artist and Customs Department Employee at 7 Studies in the History of Tax Law 329 (2015). Here is the abstract.

Customs duties in the British Colony of New South Wales provided important funds for the economic development of the settlement. This significant source of revenue led to the Colony's Customs Department being established, in Sydney 1827, to administer the collection process. The shift from physical assessments of duty by powerful individuals to a process with legislated and more regulated procedures was not without challenges. The first aim of this chapter is to provide insights into five early inquiries concerning the system of the Colony's customs duties, legislation and practice. With a particular focus on the last two inquiries, it is asked whether any modifications were made to legislation and practice. The second aim is to provide a fuller account of the employment of Frederick Garling (1806-1873) with the Customs Department, Sydney. He was found guilty of serious neglect of duty by the NSW Board of Inquiry of 1858/59. Today, Garling is a recognised Australian colonial artist for his genre of marine watercolours.

The full text is not available from SSRN.

The Australian High Court's Use of Foreign and International Materials In Constitutional Decisions

Elisa Arcioni, University of Sydney Faculty of Law, and Andrew McLeod, Lady Margaret Hall, University of Oxford & University of Sydney Faculty of Law, have published Cautious but Engaged -- An Empirical Study of the Australian High Court's Use of Foreign and International Materials in Constitutional Cases at 42 International Journal of Legal Information 437 (2015). Here is the abstract.

The issue of whether constitutional courts should refer to foreign law has become the subject of debate and discussion around the world. In the US in particular, a heated judicial and academic debate on the issue has spilled into a political controversy extending to the introduction of federal and State Bills to prohibit judicial citation of foreign law and to Congressional proposals for such citation to be an impeachable offence. The use of foreign law, for some, is in tension with national sovereignty: one Congressman claimed that citation amounted to a surrender of lawmaking 'to the control of foreign courts and foreign governments', and potentially represented the start of an internationalist normative debates about foreign law play at best a muted role in Australian jurisprudential and political life, and we do not directly engage with them here. Rather, we consider to what extent, and how, Australian High Court judges engage with foreign and international legal materials in constitutional cases. In this article we track the frequency of citation in constitutional cases and provide a substantive analysis of the ways in which those materials are used. We find that the citation of foreign and international materials in constitutional cases is widespread, though it is issue-dependent and varies in both quantity and kind between judges. In general, the Court shows a willingness to consider foreign approaches to constitutional questions, even when they are ultimately found not to be directly applicable in the Australian context. Unsurprisingly, the Court's use of foreign precedents leans heavily towards nations with which it shares a common law heritage. We suggest that the highly context specific nature of constitutional law remains a significant factor shaping the Court's approach, and that this creates a barrier to the direct importation of foreign materials.

Download the article from SSRN at the link.

Australian Copyright Law and Eighteenth Century Precedent

Isabella Alexander, University of Technology Sydney, Faculty of Law, is publishing 'Manacles Upon Science': Re-Evaluating Copyright in Informational Works in Light of 18th Century Case Law in volume 38 of the Melbourne University Law Review (2014). Here is the abstract.

Questions over whether, and if so how, copyright law should protect works of fact and information have occupied the courts of several common law countries in recent decades. In Australia, they recently came to the fore in two Federal Court decisions relating to telephone directories. While the Court paid considerable attention to nineteenth century cases, consideration of the eighteenth century cases on which these precedents were based sheds greater light on the later development of the law. This article takes a microhistorical legal approach and examines a series of cases relating to road books from the late eighteenth century to explore some of the earliest legal approaches to works of geographical information, placing them in their social and cultural context.

Download the article from SSRN at the link.

Australian Women Judges and Lawyers Through the Archives

Heather Roberts, Australian National University College of Law, has published Telling a History of Australian Women Judges Through Courts' Ceremonial Archives at 40 Australian Feminist Law Journal 147 (2015). Here is the abstract.

Swearing-in ceremonies are held to mark the investiture of a new judge on the bench. Transcribed and stored within courts’ public records, these proceedings form a rich ‘ceremonial archive’. This paper showcases the value of this archive for the (re)telling of Australian legal history and, particularly, a history of Australian women lawyers. Using a case study drawn from the swearing-in ceremonies of women judges of the High Court, Federal Court, and Family Courts of Australia between 1993 and 2013, the paper explores what this archive reveals about the Australian legal community’s attitudes towards women in the law. It argues that despite the regional and jurisdictional differences between these courts, recurring themes emerge. Notably, while feminising discourse dominates the earlier ceremonies, stories of the judges’ personal and judicial identity come to display a more overt feminist consciousness by the end of the Labor Governments in power in Australia between 2007 and 2013.

The full text is not available from download. 

Time and Movement In the Common Law

Olivia Barr, University of Technology, Sydney, Faculty of Law, has published Walking with Empire at 38 Australian Feminist Law Journal 59 (2013). Here is the abstract. 

This article considers the place of movement in common law and, in particular, the relation between movement and place in the time and space of common law in the Colony of New South Wales. Attending to jurisdiction as a way of sliding beneath the rhetoric and representations of sovereignty and territory that tend to dominate the ways in which we understand the place of law, this article links movement to place and suggests that it is through practices of movement that common law comes to be in place. Drawing on testimony provided in a 1799 colonial trial, the elliptical centre of this article is a burial party that walked into the woods beyond an emerging frontier settlement to bury the dead. Redescribing the movements of this burial party through an attention to some of the technical and material practices of common law provides a way of illustrating how common law moves and how common law comes to be, or at least how common law seems to come to be, in place. Offering a jurisprudential linking of movement to place, therefore, this article suggests it is through material practices of movement in both space and time that common law comes to rest in place. Put simply, this is the suggestion that movement forms common law’s place.

Download the article from SSRN at the link.