Thursday, 30 May 2024
Royal Sydney Yacht Squadron, Kirribilli
Her Excellency the Honourable Margaret Beazley AC KC

Tonight, we have been enjoying each other’s company on the land of the Cammeraygal, one of 20 clans of the Eora nation.

Bujari Gamarruwa Diyn Babana Gamarada Gadigal Ngura. In greeting you in the language of the Gadigal, Traditional Owners of these lands and waterways, I pay my respects to their Elders past, present, and emerging.

On 17 May 2024, the New South Wales Supreme Court held a ceremonial sitting, commemorating, to the day, the establishment of the Supreme Court of New South Wales 200 years earlier, with the appointment of a Chief Justice, assisted by a Sheriff and other necessary officers for the due administration of justice in the penal Colony of New South Wales, which had been settled 35 years earlier.

The solemn document by which this came about was the 1823 Third Charter of Justice. Having read the document many times, which is not an easy task with its beautiful scrolled script and not a dot of punctuation in its 5865 words of 18^th century English, and with my being oh-so- modern in using Google Control+F to find what I was looking for, it came as a surprise to me one day when reading past the Control+F highlight to discover that in 1823, when this document came into existence, this country of ours was still called New Holland by our British masters. 

A little more research revealed that Britain didn’t officially use the name “Australia” until 1828, when the Australia Act of that year was passed, settling down the relationship between the Governor and the Chief Justice, which had become a little tense.

It all came to a head in 1827 when Governor Darling introduced legislation to control what he considered to be a vituperative press. The Chief Justice was having none of it. As the Chief Justice wrote to the Home Secretary the Earl of Bathurst, various of the provisions were repugnant to ‘the Laws of England, the liberty of the press [being] regarded as a constitutional privilege.’

This was a significant observation given that Britain didn’t then, and doesn’t now, have a written constitution. Here in Australia, we have a written constitution, but no Bill of Rights. However, in 1997, in Lange v Australian Broadcasting Corporation[1], the High Court found that freedom of political communication was a constitutionally implied right, with significant implications in defamation proceedings involving political commentary.[2]

The significance of the bicentenary of the Supreme Court and the Sheriff’s Office, and the first House of Parliament, enabled an autocratically governed penal colony to become, in an almost seamless transformation, a fledgling democratic society underpinned by the rule of law.

In our democratic system, the judiciary is the third arm of government, standing equally, but independent from, the legislature and the executive. The judiciary, and indeed the legal profession as a whole, takes particular pride in the continuity of our Court system over these 200 years, predating the British Courts of Judicature as they exist today by some 50 years, although it doesn’t come close to the oldest continuing court in the world, the Tribunal de Les Aguas del las Vega de Valencia – which our Spanish speaking diplomats here tonight will recognise as ‘the Water Court’ which has continued to sit weekly in the same place for over 1100 years.[3]

That Court was established during the Iberian Islamic period to resolve water disputes arising from the region’s irrigation network. It continues to sit every Thursday; each case is dealt with on the day with oral argument only and no records are kept, a form of efficiency rarely matched by the Courts in our Westminster system.

Continuing to Google my way through ‘oldest courts in the world still in use’ I came across the Palace Court in the Falklands, which opened in 1541 and is still functioning, only to find it was a tennis court[4] - and presumably very British.

The continuity and constancy of our legal and political systems is a triumph given our inauspicious start as a penal colony of some 700 convicts. Over time we have become a nation where people from over 200 countries have come and made it home. Today, we are recognised as one of the most multicultural countries in the world with 30.7%[5] of our population born overseas, ahead of New Zealand (27.4%)[6]; Canada (23%)[7] the United Kingdom (14.8%)[8] and the United States (13.9%)[9].

What is sometimes overlooked is that Australia has always been a multicultural country of many languages. There are more than 200 Indigenous nations across Australia each with their own language.  167 of those languages are still viable.  

Even as a penal colony, Australia was destined to be a country that many nationalities would make home. Of the 11 vessels of the First Fleet, nine were owned by or leased from the English East India Trading Company, and most of the seamen on board were Indian.[10] One historical site contends there were 60 different nationalities amongst the crew and convicts of the First Fleet. I haven’t been able to verify that.

There are records of 12 African prisoners. One of those was Billy Blue, who, after serving his sentence, became the principal ferryman conveying people across the Harbour and was so skilled Governor Lachlan Macquarie made him the “water bailiff’.  He was given a home which was thought to be located on the grounds of Government House today. [11]  His name continues to be memorialised in the name 'Blues Point' on the opposite of the Harbour Bridge to Kirribilli, and in the Billy Blue College of interior design.

We also know there were about 140 Irish, 33 Scottish and 9 Welsh convicts.[12] Doing some quick maths, over 500 were probably English. There were eight convicts of uncertain origin, likely from America and the West Indies. Among the crew, nationalities included Madagascar, Germany, Norway, France, Sweden, Portugal and Holland.[13]

As well as being part of the crew, I found a source – again on Google – suggesting there were some French among the convicts.[14] There is a lingering Australian idyll that we were almost French. Captain Arthur Phillip’s fleet arrived in Botany Bay over three days from 18-20 January 1788.  Captain Arthur Phillip had decided Botany Bay was unsuitable and on 26 January had started to move the fleet around to Sydney Cove.  On the same day, two French ships, the Boussole and the Astrolabe, part of the French scientific expedition led by captain Monsieur de la Perouse took anchor in Botany Bay.  It had left France some 3 years earlier.   La Perouse knew of Captain Phillip’s purpose and destination and was not surprised to come across the British fleet.

The French ships were not there as aggressors or colonisers.[15] So the romanticism of Australia as a French speaking idyll where the civil system of law was to flourish was but a poor understanding of our history and there are many Australians who even today cling to the myth.  

La Perouse left Botany Bay in March 1788 and sailed north but his two ships were shipwrecked off the Solomon Islands with a total loss of crew.[16] In another example of the saying ‘truth is stranger than fiction’, but for a failed application to sail with the expedition, the La Perouse expedition could have changed European history – the failed application was by a 14-year-old sea cadet named Napoleon Bonaparte – who, had he been accepted, would have perished in 1788 along with the crews of the Boussole and the Astrolabe.

Of course, ships and people kept coming to our island continent, and as is the case today, the reasons were various. In its early years, the colony nearly starved and India became its main source for the supply of food and animals. The result is that today there are strong bloodlines of horse, cattle and sheep which trace their origins back to India. [17]   Australia’s most famous sheep is the Spanish merino, sourced in South Africa and first imported into the colony in 1797.[18]

In 1796, the Begum Shaw – later renamed the Sydney Cove - set sail from Calcutta but was shipwrecked off north east Tasmania, what is now called Preservation Island. Refusing to be marooned, they set off in their lifeboats, discovered the now called Bass Strait and landed on the southern coast of Victoria. They then set out to walk to Sydney - something only brave souls undertaking charity walks do these days.[19]  

In 1798, Mak Said Ying, known as Johnny Shying, came to Australia from Guangdong province as a free settler.

The first Muslim Indian arrived in Van Diemen’s Land in 1813; the first Hindus as indentured labourers in 1816, and the first Sikhs in 1844. The Indian rupee was an accepted currency until 1832 – as was the Spanish holey dollar, which, for a time vied for the position as the official currency in the colony.  It was not until 1832 that sterling was made the colony’s official currency.  As an aside, today, you may recognise the holey dollar as memorialised in the logo of Macquarie Bank.

The first Greeks arrived in 1829, seven of them having been convicted of piracy by a British Naval Court and the penalty imposed was transportation to Australia. Two stayed.

Over the period of transportation to the colony of New South Wales - which lasted until 1840 when English Prime Minister, Lord Melbourne, approved its cessation - the English comprised about 70% of all convicts transported[20] – significantly outdoing the Irish (25%). In the interests of complete accuracy, and for those of you with consular responsibilities in Tasmania and Western Australia, I should add that convicts continued to be sent to Tasmania until 1853 and to the west until 1868.

From the 1840s, cameleers came to Australia from Afghanistan, Egypt, Iran, Turkey, India and Pakistan[21] and led camel trains through outback Australia – their contribution to our country is memorialised in The Ghan, the railway that runs from Adelaide to Darwin.

The Gold Rush of the 1850s saw gold-seekers from all around the world pour into the colonies, particularly from China, but also from all over Europe.[22]

In 1871, the first Japanese-born settler arrived, an acrobat, Mr Sakuragawa Rikinosuke. The late arrival of Japanese settlers to Australia is explained by the fact that, until 1866, it was a capital offence for the Japanese to leave Japan. Rikinosuke, for reasons which are beyond me, settled in Queensland.[23]

In continuing the theme of diversity in the great Australia story, or as I like to say: a country of many stories, our national anthem, Advance Australia Fair, was written by a Scotsman Peter Dodds McCormick in 1878.

Let me return to the present. The last consulate to open here in Sydney was that of the Republic of Vanuatu – which Dennis and I had the honour of attending (and cutting the ribbon) on the 25^th of March this year. With that, the Consulate-General of Vanuatu joins one of the largest, busiest, and, I have to say, in my experience, collegiate consular corps in the world.

[1] Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520.

[2] The High Court declared that the common law of defamation had to recognise that "each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia". The effect of this declaration is to make available a new expanded duty-interest form of qualified privilege in defamation law to provide protection to publishers of such information, opinions and arguments. See: https://www5.austlii.edu.au/au/journals/MurUEJL/1998/3.html#The%20expanded

[3] https://en.wikipedia.org/wiki/Water_Tribunal_of_the_plain_of_Valencia

[4] https://www.quora.com/What-is-the-oldest-court-in-the-world-still-in-use#:

[5] https://www.abs.gov.au/statistics/people/population/australias-population-country-birth/jun-2023

[6] https://www.stats.govt.nz/news/new-zealands-population-reflects-growing-diversity#:

[7] https://www12.statcan.gc.ca/census-recensement/2021/as-sa/fogs-spg/page.cfm?  

[8] https://iasservices.org.uk/how-many-immigrants-are-in-the-uk/#:

[9] https://www.census.gov/newsroom/press-releases/2024/foreign-born-population.html#:

[10] https://historyandheritage.cityofparramatta.nsw.gov.au/blog/2017/06/29/indias-untold-story-in- australia#:

[11] https://www.openforum.com.au/tabi-on-racial-matters-black-african-communities-have-deeper-connections-to-australias-history-than-we-realise/#:

[12] https://firstfleetfellowship.org.au/convicts/they-came-from-many-lands/

[13] https://firstfleetfellowship.org.au/convicts/they-came-from-many-lands/

[14] https://education.nationalgeographic.org/resource/first-fleet-sets-sail-australia/

[15] Nor, would it seem, did the English consider the French as aggressors. Captain Watkin Tench, writing in March 1785 in his account of the settlement referenced ‘to our good friends the French [departing] from Botany Bay in prosecution of their voyage’ in CAPT Watkin Tench, ‘A Narrative of the Expedition to Botany Bay’ in LF Fitzhardinge (ed) Sydney’s First Four Years (Angus and Robertson, 1961).

[16] https://www.sl.nsw.gov.au/stories/french-australia/fate-la-perouse#:  

[17] https://historyandheritage.cityofparramatta.nsw.gov.au/blog/2017/06/29/indias-untold-story-in-australia#:

[18] https://digital-classroom.nma.gov.au/defining-moments/merino-sheep-introduced

[19] https://historyandheritage.cityofparramatta.nsw.gov.au/blog/2017/06/29/indias-untold-story-in-australia#:

[20] https://www.nla.gov.au/research-guides/convicts/transportation-arrival#:

[21] https://exhibitions.slwa.wa.gov.au/s/migration/page/afghan#:  

[22] https://www.nma.gov.au/defining-moments/resources/gold-rushes

[23] https://www.homeaffairs.gov.au/mca/files/2016-cis-japan.PDF