Vale Dr John Kennedy McLaughlin AM (1938-2023)
With much sadness the Francis Forbes Society notes the unexpected and untimely death yesterday of Dr John Kennedy McLaughlin AM. John McLaughlin was heavily involved in the legal profession throughout his entire career, and a good friend of the Francis Forbes Society. He was a long time Master in Equity and then Associate Justice of the Supreme Court of New South Wales (1989-2010). After his retirement he completed his doctorate on the role of Irish lawyers in Australia and delivered the 9th Plunkett lecture to the Francis Forbes Society in 2020. On 27 November 2009, he was conferred with an Honorary Fellowship of the University of Sydney. The citation noted that he attained, in 1973, the rare degree of Master of Laws (with First Class Honours) for his thesis “The Magistracy in New South Wales, 1788-1850”, which stands as a seminal work of authority on the subject. He was a Councillor of the Royal Australian Historical Society. He made a significant contribution to the Australian Dictionary of Biography over many years. He was made a Member of the Order of Australia in 2014 “for significant service to the judiciary and to the law, particularly through the documentation and preservation of Australian legal and constitutional history, and to the community.” (Photo Courtesy Catholic Weekly)
We are very pleased to announce an outline for the forthcoming year.
The Hon Andrew Bell, Chief Justice of New South Wales, will deliver his Sir James Martin Oration in Banco Court on Tuesday 28 March 2023 . At this event, Chief Justice Allsop will present prizes to the winners and commended entries in our 2022 Australian Legal History Essay Competition.
- The Senior Secondary winner is Ruby Byrne for her essay, “An assessment of the legislative legacy of Prime Minister Whitlam Or Everything I learnt in Legal Studies I owe to Gough”
- Jonathan Tang received a commendation for his essay “Growth of the Federal Spirit: The First Post-Federation Rail Link between NSW and Victoria”
- The Junior Secondary winner was Junyoung Hong for his essay, “Why did Captain James Cook claim Australia for Britain in 1770 via the doctrine of Terra Nullius?”
- Rachael Choe received a commendation for her essay, “What factors led to women getting ‘the vote’ in Australia?”
The students’ schools were (alphabetically) Abbotsleigh, Chatswood High School, Katoomba High and Normanhurst Boys High School. Congratulations to these students and their teachers for the high quality of their submissions.
(Image Courtesy The Australian Newspaper)
Congratulations to the President of the Society, Chief Justice James Allsop.
Chief Justice Allsop was made a Companion in the General Division of the Order of Australia in the 2023 Australia Day Honours. The formal citation, that the award was for eminent service to the judiciary and to the law, to organisational and technological reform, to legal education, and to insolvency law.
Legal History Tutorials are BACK!!
The first of our very popular legal history tutorials for 2023 was delivered on Monday 6 March 2023 by Professor Emerita, Anne Twomey, Professor of Constitutional Law and Director of the Constitutional Reform Unit at Sydney Law School. Professor Twomey’s topic is ‘The curious history of the nationhood power’ and she provided the following outline:
Hidden away in the round tower of Windsor Castle is a letter from Sir Isaac Isaacs to the King about one of the greatest constitutional crises that Australia had yet seen – the dismissal of the Lang Government. It contains the first strands of what would come to be a nationhood power to deal with national emergencies. This tutorial will trace the historical development of the nationhood power, with a particular focus on the pivotal judgment of Sir Anthony Mason in the AAP case, and its role in the COVID-19 pandemic as a power to deal with emergencies.
The Society is grateful to Chief Justice Bell for his generous permission to use Supreme Court facilities.
Other dates this year we are pleased to announce are:
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11 April – Professor Peter Gerangelos, Sydney Law School on a topic from the Mason Collection, Dynamic and Principled: The Influence of Sir Anthony Mason edited by Professor Barbara McDonald, Dr Ben Chen, and Dr Jeffrey Gordon and published in 2022.
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18 April – Dr Peter Edwell and the Hon Keith Mason AC KC – “Art and the Law: The Archibald prize case of 1944 and beyond”
When the dispute over the award of the Archibald Prize to William Dobell went to the Supreme Court of NSW in 1944 it made headlines around Australia. With Garfield Barwick as counsel for the relators and Frank Kitto acting for the respondents, the legal arguments and tactics employed in the case took centre stage in one of Australia’s most famous court dramas. Behind the scenes, art and the law were strongly connected with the influential figure of Lionel Lindsay playing an important role in the case and possessing strong links with business, political and legal powerbrokers, especially Chief Justice Frederick Jordan. This lecture investigates some key aspects of the case and the influences at play on Barwick and Kitto. It also examines connections between Lionel Lindsay and Chief Justice Jordan together with the controversy behind the creation of Mary Edwards’ portrait of Jordan that hangs in the Banco Court today.
Keith Mason served as Solicitor-General of New South Wales (1987-1997) and President of the NSW Court of Appeal (1997-2008). In 2019 he published the first biographical study of Chief Justice Frederick Jordan (Sir Frederick Jordan: Fire under the Frost) and has published other material on Jordan and his connections to the art world in the 1940s.
Peter Edwell is Senior Lecturer in the Department of History and Archaeology at Macquarie University. His most recent book, The Case that Stopped a Nation: The Archibald Prize controversy of 1944, deals with the controversy surrounding the award of the Archibald Prize to William Dobell for his portrait of fellow-artist Joshua Smith. It is the first detailed study of the controversy and court case and was short-listed for the Prime Minister’s Literary Awards in 2022.
3.) 24 May – Michael Adams, a PhD candidate at Columbia Law School and the current Counsel Assisting the NSW Solicitor General, on the topic of “the effect of the American Civil War on the law of contract”;
We expect that online viewing will be available for all lectures and tutorials from the Court’s AVL System.
Other presenters in 2023 will include:
And two recipients of grants from the Francis Forbes Fund in 2022:
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Dr Jessica Lake (Australian Catholic University) ‘The Slander of Women’,
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Megan Cameron (University of Sydney) The work of magistrates in early colonial New South Wales (from 1788 until 1835)
2023 Plunkett Lecture
We are honoured that the Hon Andrew Bell, Chief Justice of New South Wales, has agreed to present the 2023 Plunkett Lecture later this year
ANNUAL GENERAL MEETING
The Following Annual Report was presented at the Francis Forbes AGM 2022 on Tuesday 29 November 2022. ANNUAL REPORT 2022 (25.11.22)
Membership renewal for 2022/2023: Members of the Francis Forbes Society who have overlooked renewing membership for the 2022/2023 membership year are invited to complete the renewal form available here: 2022-23 Francis Forbes Membership Application and Renewal .
RECENT EVENTS
2022 joint presentation for the Ngara Yura Committee of the Judicial Commission of NSW and the Francis Forbes Society for Australian Legal History – the third annual joint presentation was delivered by the Hon Lucy McCallum, Chief Justice of the ACT Supreme Court, titled “The fallacy of protectionism.” The paper addressed the historical background to the so-called “protectionist” policies of the last century, their abject failure in achieving their stated goals of protecting First Nations peoples and the reckoning to be done to avoid such mistakes in the future.
Justice Lucy McCallum
The presentation was chaired by Ngara Yura Committee member, the Hon Justice Rachel Pepper of the Land and Environment Court. It will be delivered on Thursday 10 November 2022 at 5.15 pm – in person in Court 1, Federal Court of Australia, Level 21 Law Courts Building, Queens Square, 184 Phillip St Sydney
The Ngara Yura Committee and the Forbes Society are grateful to the Hon James Allsop AO, Chief Justice, Federal Court of Australia, President of the Forbes Society and Ngara Yura Committee member, for use of Federal Court facilities for the presentation.
Forbes Society Legal History tutorial:
Our latest legal history tutorial was delivered by Declan Noble on “A partial history of the Public Law Injunction in Australia” on Tuesday 22 November 2022 at 5.15pm in Court 13A, Law Courts Building, Queens Square, 184 Phillip St Sydney.
Declan is currently Associate to the Hon Justice Jeremy Kirk in the New South Wales Court of Appeal. In 2021, he was tipstaff to the Hon Justice Richard White, also in the New South Wales Court of Appeal. He completed a Bachelor Arts in Classics (Hons I) and a Bachelor of Laws (Hons I) at the University of Sydney.
His LLB Honours thesis, titled “The Section 75(v) Injunction: History and Principles”, examines the development in Australia of the public law injunction over the course of the 20th century, especially in constitutional contexts. It will be published in the Australian Law Journal in January 2023.
The Society is very grateful to Chief Justice Bell for his generous permission to use Supreme Court facilities.
Some recent events
Thank you to Dr Patrick Graham (School of Law, University of New England) for presenting the 2022 Plunkett Lecture “The Unlikely Reformer: Sir John Latham and the Australian Constitution” on Thursday 27 October 2022.
Dr Graham received a grant from the Forbes Fund in 2021 for his project “Sir John Latham and constitutional autochthony.”
Sir John Latham was Chief Justice of the High Court of Australia from 1935 to 1952
Dr Patrick Graham is a lecturer in law at the University of New England. He researches in legal history, particularly on emergency power, and constitutional law and theory. He has most recently published on the constitutionally implied freedom of political communication and Sir John Latham’s constitutional thought. Patrick’s doctoral thesis looked at the use of emergency power in early twentieth century England. Patrick is from Ireland and studied law at the London School of Economics and Queen Mary, University of London.
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Thank You to
Dr Henry Kha (Senior Lecturer, Macquarie Law School)
for his tutorial on Tuesday 27 September 2022
Synopsis
The enactment of the Matrimonial Causes Act 1959 (Cth) was a significant moment in the history of Australian family law. The Act unified the divorce law under a single federal statute. It is argued that the introduction of the Act was driven based on modern conservatism. The Act promoted the social conservatism that was prevalent during the Menzies era of the 1950s by preserving many of the existing grounds for divorce and barring divorce to married couples in the first three 3 years of marriage. On the other hand, it was a legal change driven by modernity and the unification of Australian divorce law was part of the project of nation building. Moreover, the Act introduced separation of five 5 years as a no-fault ground of divorce. This eventually paved the way for the introduction of no-fault divorce in Australia under the Family Law Act 1975 (Cth). The tutorial explored the legal and political changes that led to this divorce law reform.
Further details on the background to this paper can be found at:
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Thank you to
Dr Bartie’s for delivering the
2022 Forbes lecture
on
Wednesday 31 August 2022
Program: 2022 Annual Forbes Lecture Prog 31.08.22
Dr Bartie’s topic was:
Legal Life Histories and the Creation of Legal Fields.
Dr Bartie’s lecture examined the role that legal life history can play in investigating how legal fields are created and sustained, and how they change over time. It will also make an argument for greater understandings of Australian legal fields.
First, it drew from Dr Bartie’s life history of Professor Geoffrey Sawer to illustrate the type of insights which can be gleaned from life history. As one of the founders of constitutional law in Australia and the first Australian law professor to work within a school of social scientists, Sawer’s career – and life – provides crucial insights into the creation of both constitutional law and Australian academic law. The choices he made when founding modern constitutional law scholarship and when working alongside social scientists can also help explain the marginal place of both history and life history within Australian academic law.
Second, the lecture outlined the potential for group biography (‘prosopography’) to create new and stronger connections between law, politics, culture and society, as well as investigate the creation and sustenance of legal fields. It introduced Dr Bartie’s new socio-legal history of Australian environmental lawyers as a way of illustrating the changing nature of group biography and how this methodology can both enhance law’s interdisciplinary credentials law and create more holistic understandings of law and legal culture in Australian society.
Biography: Dr Susan Bartie is a legal historian at the University of Tasmania. She has spent the last decade studying the intellectual agendas and endeavours accompanying the rapid growth in the size and stature of Australian law schools. She is currently developing a 50-year socio-legal history of Australia’s environmental lawyers supported by a Discovery Early Career Researcher Award from the Australian Research Council (2022-2024).
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FURTHER FORTHCOMING
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Early November – joint presentation with the Ngara Yura committee
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1-3 December 2022 – ANZLHS 2022 Annual Conference at the University of Technology Sydney. The theme of the conference is Tenuous Histories and Provable Pasts: How Legal Historians Create Knowledge. Keynote speakers will include Professors Constance Backhouse and Katherine Biber. See 2022 conference for details and a link to the full Call For Papers
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Thank you very much to Professor Barbara McDonald, Dr Ben Chen, and Dr Jeffrey Gordon for presenting the legal history tutorial “The Mason Court” on their book, Dynamic and Principled: The Influence of Sir Anthony Mason) on Tuesday 9 August. The book is available through Federation Press.
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RIP
Vale – Dr J.M. Bennett AO
With sadness, the Francis Forbes Society notes the death of Dr J.M. Bennett AO yesterday, 17 July 2022.
Dr Bennett was one of Australia’s leading legal historian with many credits to his name. He worked closely with Professor Alex Castles, Professor Bruce Kercher and others.
Dr Bennett edited A History of the New South Wales Bar (1969). He wrote A History Of Solicitors In New South Wales (1984), Portraits of the Chief Justices of New South Wales (1977) and the several volumes of the Lives of Australian Chief Justices, amongst other writings.
He will be sorely missed.
Forbes Presentations for 2022:
Thank you to Professor Mark Lunney
Professor Mark Lunney, Junior Vice President of the Forbes Society presented a lecture titled ‘Racing Morals’ and the Law of Defamation: An Australian Story
The lecture was delivered on Tuesday 28 June in Court 13A Supreme Court of New South Wales, Queens Square
The lecture covered: ‘Racing Morals’ and the Law of Defamation: An Australian Story While legal proceedings arising out of recreational activities were not common in early white Australian legal history, they were not unknown. Where such cases involve private law, they can provide an opportunity to view the interaction between formal English rules of private law and their application in very different Australian conditions. Using an example from the ‘Sport of Kings’, this lecture explores how rules founded explicitly on public policy – such as the defence of qualified privilege in defamation – were moulded to prioritise the interests thought most valuable to the Australian community they now served. What the analysis reveals is that horse racing in early twentieth century Australia was a prioritised interest albeit one that revealed important class differences between the various constituencies of the racing community.
Biography (abbreviated): Mark Lunney is a Professor at the Dickson Poon School of Law, King’s College London. He is also a Professor in the School of Law at the University of New England, Armidale, Australia, and a Visiting Professor at the Faculty of Laws, University College London.
For any queries, please email membership@forbessociety.org.au. Alternatively you may contact the Secretary: Simon Chapple secretary@forbessociety.org.au or Treasurer: Carol Webster SC treasurer@forbessociety.org.au.
MEMBERSHIP NOTICE:
Our new Membership Application and Renewal Form is now available at: FFS Membership application and renewal 22-23
DONATIONS
Have you considered donating to the Society?
The Society welcomes donations to support research activities, such as that outlined in the Current Research Page of this Website. Anyone wishing to donate should download the following form: Fund Donation Form 2022
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The first Forbes Society tutorial of 2022 was Wednesday 23 February 2022 at 5.15pm in the Banco Court presented by Dr Coel Kirkby of the University of Sydney, on the “History of Jurisprudence”.
There was a formal presentation by the President of the Forbes Society, Chief Justice Allsop of the Federal Court of Australia, to:
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The Honourable T F Bathurst AC, Chief Justice of New South Wales, recognizing his support for the Society during his term as Chief Justice, on his retirement from the Court; and
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NOTE 2021 AGM WAS HELD ON WEDNESDAY 24 November at 5.30 pm VIA ZOOM. Further details are at: Notice of AGM 2021 (1.11.21)
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New Legal History blog Announced
The University of Southern Queensland School of Law and Justice has recently launched a blog with a strong focus on legal history – https://lawfully.usq.edu.au/
Initial posts examine the 1348 Humber Ferry case, Chief Justice Coke’s decision in the Bonham case, an analysis of the 1686 Godden v Hales matter, and more!!!
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Thank you very much to the Hon Justice Jacqueline Gleeson, High Court, for delivering a fascinating 2021 Plunkett Lecture. Thank you also to the Attorney General, the Hon Mark Speakman SC MP (19 August) for chairing the meeting
The Lecture was titled, ‘Dignity in the time of John Hubert Plunkett’ and provided a fascinating perspective on the concept of dignity in legal proceedings and history.
The Attorney General delivered the Seventh Annual Plunkett Lecture in 2018, ‘The Royal Prerogative of Mercy’ and chaired the 2017 Plunkett Lecture, ‘John Hubert Plunkett QC and the Myall Creek murder trials’ delivered by Mark Tedeschi AM QC and the 2020 Plunkett Lecture, ‘John Hubert Plunkett: An Irish Lawyer in Australia’ delivered by Dr John McLaughlin AM.
Click Here for the program: 2021 Plunkett Lecture Programme
here for: 2021 Annual Forbes Lecture Programme and News Update _09 06 2021
Paper on Sir James Martin (1820-1886)
A new paper by eminent legal historian Dr John Bennett (rip)on Sir James Martin has been published by the Society.
Dr Bennett described Sir James Martin as enjoying “the unique distinction, thus far in the history of New South Wales, of holding in succession the offices of Premier (thrice) and then of Chief Justice.”
Martin has been honored recently with twin statuettes in Martin Place and Parramatta. Dr Bennett, as Martin’s chief biographer, argues that these statues would be better located in the ground floor of the Law Courts Building and the grounds of Old Government House. as more protected from vandalism and more in keeping with the history of this significant individual.
This important paper is available here: Reflections on Sir James Martin 04.04.21
Recent Books
– Australian Jurists and Christianity – a collection of essays, many written by members of the Society which explore the connection between Australian Jurists and Christianity. People profiled include Eddie Mabo, Edith Cowan and Michael Kirby AC CMG
Abbeys Bookshop of 131 York St Sydney, has the book – Just $99.00!! Click on the following link to purchase a copy from Abbey’s
https://www.abbeys.com.au/abbeys/home.do
Australian Jurists and Christianity provides new perspectives on the relationship between law and religion in Australia. It claims that the relationship between law and religion was more significant in Australia than has been suggested. Specifically, it suggests that Christianity was a significant influence on Australian jurists, both as public figures and as makers of Australian law.
Forbes Flyer No. 42 is out now!!!
This is David Ash’s final Flyer as editor. Our thanks to David for his great work in editing these excellent Newsletters for the society. It can be found at: Forbes-Flyer-No-42-Summer-2020-2021
This edition contains a review of the year’s events, and a fascinating article on Alexandria Park, the home of Terra Nullius.
The Flyer also contains details David’s recent book: Three Sydney Judges
This book sketches the lives of three Justices of the High Court of Australia, the nation’s supreme court. Albert Bathurst Piddington, George Rich, and Adrian Knox are part of Sydney’s history. They also inform our present.
The book is available through Amazon: https://www.amazon.com.au/Three-Sydney-Judges-David-Ash/dp/B0884H5S4C#:~:text=This%20book%20sketches%20the%20lives,They%20also%20inform%20our%20present.
The Previous editions of the Forbes Flyer are available on the Forbes Flyer Page of this website.
Some Recent articles of interest:
The Society welcomes any contributions from members who may have a particular interest they wish to explore through an essay, or a resource they think may be useful in the wider community. We can easily publish them online!! Send them to the Web Manager, Tony Cunneen at: TCunneen@stpiusx.nsw.edu.au
As a result of long research Summer Bar News Published an article on the establishment War Crimes tribunal on Labuan in 1945 by former Justice Russell Le Gay Brereton.
The article is available at:
https://barnews.nswbar.asn.au/summer-2020-mag/LEGAL-HISTORY.html#page=81
ALSO,
Bar News Winter published a series of articles on the New South Wales Legal Profession and the 1919 Pandemic. Following is an extended version of one of those articles: Tony CUNNEEN 1919 Pandemic and the Bar (7 June 2020)-1
Plunkett Lecture 24 November is available at:
Forbes Society – 2020 Plunkett Lecture – YouTube
The Ninth Annual Plunkett Lecture was delivered by Dr John McLaughlin AM on Tuesday 24 November 2020 at 5:15pm. The JH Plunkett Lecture honours the memory of one of this State’s pivotal Attorneys General. John Hubert Plunkett (1802-1869) arrived in NSW, from Ireland, in 1832. For more than 30 years thereafter he made a major contribution to colonial law and society, serving, inter alia, as Solicitor General and Attorney General. He was the first Australian lawyer to be granted a commission as Queen’s Counsel. He led Roger Therry, another Irish-born barrister, in the conduct of the Myall Creek Murder trials.
The 2020 Plunkett Lecture focused on John Plunkett himself and was chaired by the NSW Attorney General, The Hon Mark Speakman SC MP, himself a former Plunkett Lecturer.
WE THANK ALL OUR SUPPORTERS FOR THEIR INTEREST IN OUR Past PRESENTATION:
“Making the Past Visible: The Colonial Frontier Massacre Map Project and the Legacies of Frontier massacres”.
On Thursday 5 November 2020 at 5:15-6:30pm (Eastern Daylight Saving Time) there was a webinar held organised by the New South Wales Judicial Commission, Ngara Yura Committee entitled:
Making the Past Visible: The Colonial Frontier Map Project and the Legacies of Frontier Massacres.
Speaker Professor Lyndall Ryan of the University of Newcastle.
Chaired by Chief Justice Allsop of the Federal Court of Australia and Justice McCallum from the Supreme Court of New South Wales.
In the lecture Professor Ryan addressed the history of massacres of Aboriginal people that occurred from 1794 to 1928 (some 300, with an estimated loss of nearly 10,000 lives) across the Australian frontier. The lecture examined the data concerning these events and addressed important historical and contemporary questions about this part of Australian history and legal history: the lack of awareness of these events; why few perpetrators appeared before courts; how do we come to terms with this past and what the past and our response mean for the future?
Prof Ryan. Digital Map of Colonial Frontier Massacres
Obituary to Philip Selth OAM
The following Obituary to Philip was first published in the New South Wales Bar Association, InBrief on 7 July 2020. It is reproduced with the permission of the author, Bret Walker SC. It can be found at: PHILIP ALAN SELTH OAM
Philip Selth OAM was the founding Honorary Executive Director of the Society, then variously a member of the Advisory Board and Councillor. Philip’s support for the Society and its legal history work was vital.
Photo courtesy Australian Dictionary of Biography – one of the many history projects which Philip supported so passionately. He wrote six entries in the ADB. Click on the following link for a piece written by Philip on his experience with the ADB: Philip Selth in the ADB
Further Details from the NSW Bar Association are available at: VALE PHILIP ALAN SELTH OAM
2020 Forbes Lecture
2020 Forbes Lecture: Justice Leeming of the NSW Court of Appeal delivered the Forbes Lecture on Tuesday 19 May 2020 at 5.30 pm.
The title was: : “Lawyers’ uses of history, from Entick v Carrington to Smethurst v Commissioner of Police”. Justice Leeming’s excellent presentation the first time the Society used social media to broadcast a lecture live.
Download the Lecture here: Forbes Lecture 2020_ Justice Leeming
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New South Wales and worked hard to establish the legal framework for the new colony. Further details are in our Biography Section.
