Saturday, 8 June 2024
Parade Ground, Government House, Sydney
Her Excellency the Honourable Margaret Beazley AC KC, Governor of New South Wales

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.

This year is the second official celebration of the birthday of His Majesty King Charles the Third, and is also the year in which New South Wales marks the bicentenary of the Supreme Court and the Legislative Council, the mother parliament of the Australian parliamentary system. 

The establishment of these two institutions laid the groundwork for representative and responsible government in the colony and, subsequently, upon federation, in the Commonwealth and the newly formed Australia States.  As importantly, they laid the foundation for our democracy based on the rule of law. 

These are milestones of fundamental significance within a history of an ever-increasing understanding of both our successes and our failures and a singular appreciation of institutional constancy, in a world that had been unsettled then as it has been at different times throughout that 200-year history. 

What is singularly important is that the success of both the Supreme Court and the Legislative Council, is as much in their evolution as in their longevity. 

For example, in the 1823 Charter of Justice which established the Supreme Court, Britain still referred to ‘our colony of New South Wales situate in the island of New Holland’;  it was a convict colony that had nearly failed in its early years due to starvation;  a colony, which in its first 50 years used a multitude of currencies, ranging from IOU’s, to promissory notes, to the India rupee, to the Spanish Holey Dollar and Pounds Sterling, to say nothing of the ubiquitous rum trade controlled by the New South Wales Corps which led to an ill-fated coup against Governor Bligh. 

Throughout its history its establishment those 200 years ago, the central role of the Court in the administration of justice has remained constant, administering the laws of the State as they are from time to time. 

However, one significant difference relates to the treatment of Indigenous people, a matter which concerned the first Chief Justice, Sir Francis Forbes, as to whether English law should apply to the local population who had their own system of law. 

That concern was an aspect of the doctrine of Australia as terra nullius – literally meaning uninhabited – but that was never the understanding.  Captain Arthur Phillip’s 1787 instructions including that he ‘endeavour … to open an Intercourse with the Natives and to conciliate their affections’.^[1] 

Rather, terra nullius was a principle of European international law, meaning a land that was not cultivated or was without a settled system of government.  As more accurate history informs us that was a misconception about Australia’s indigenous peoples and their systems and traditions.  It was not until the 1992 decision of Mabo that the doctrine was legally rejected. 

Today, the Court administers the law for all people as embodied in the judicial oath which, in substance, has also remained constant: to do right to all manner of people according to law, without fear or favour, affection or ill will.

The longevity of institutional governance in New South Wales is well captured in the title of the Supreme Court’s bicentennial book:  Constant Guardian, changing times.  That history is deserving of acclaim and protection, sitting as it does within the overarching continuity of our constitutional monarchy.  

The Legislative Council, today a body of 42 members elected for 2 consecutive 4 year terms, is unrecognisable from the original chamber, with its then 5 nominated representatives: the Lieutenant Governor, the Colonial Secretary, the Chief Justice, the Surveyor General and the Principal Surgeon - hardly a democratic body but of sufficient representation for the purposes of a rapidly changing colony. 

Upon its establishment, the Council had power and authority to make laws and ordinances for the peace welfare and good government of the said colony…  Except for the reference to the ‘colony’ those same words are, today, the constitutional basis of the law-making power of the NSW Parliament.^[2]  

I wish everyone well and thank the cadets and Scots College Pipes and Drums, the Corrective Services Band, and the mounted police who again have done us proud as we celebrate the official occasion of the King’s birthday, here at Government House. 

God Save the King.  Long may he reign!

[1] Draught Instructions to Governor Phillip, 25 April 1787: https://www.foundingdocs.gov.au/resources/transcripts/nsw2_doc_1787.pdf

[2] Constitution Act (NSW) s 5