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Decisions of the Superior Courts of New South Wales, 1788-1899

Bannister on Transportation, 1825

Attorney General Bannister on Transportation, 1825


Attorney General Saxe Bannister to Governor Thomas Brisbane, 24 June 1825, Colonial Secretary's In-Letters, 4/1782: 67-69. State Records New South Wales. 
Sydney 24 June 1825 
I have the honor of transmitting to your Excellency a collection of Sessions sentences on convicts, with a few remarks upon them. Having observed some irregularities in the execution of the Act of Parliament establishing the summary jurisdiction of magistrates, I obtained these papers in April last, but illness has prevented me reporting on them as I had intended. 
I procured them from the warrants of committal in the possession of the Gaoler at Sydney; and the result of my examination is an opinion that your Excellency will find it right to intimate to the magistrates that in some respects they must conform more closely to the late Act of Parliament;i and if they find it unsuited to the condition of the colony that they should make representations to your Excellency to be transmitted to His Majesty's ministers with the returns of sentences about to be made for their books. 
The statute of the 4 G.4 c96 s19 appears to me to contemplate two classes of punishments for two classes of offences committed by convicts whose sentences are not expired or remitted: that is to say, 

1st for 
"crimes and misdemeanours not punishable with death["] 
(a) "Extension of the time for which such persons have been originally transported" 
(b) "Transportation of them to such part of the colony as should be appointed under the act section 38 and by hard labour" 

(2) for  
(a) disobedience of orders, 
(b) drunkenness, 
(c) neglect of work, 
(d) absconding or desertion, 
(e) abusive language to their employers 
(f) or overseers, 
(g) insubordination or 
(h) other turbulent or 
(i) disorderly conduct 
(a) whipping, or 
(b) other corporal punishment not extending to privation of life or member, or 
(c) removal to some other part or place of the colony and hard labour 
These various punishments seem capable of very great variations, so as to be apportioned to different degrees of guilt; which was probably the object of the section. 
In executing the act some confusion appears to me to have arisen, partly from the actual state of the colony as to its present penal settlements, having escaped observation in England: and partly from the magistrates not having sufficiently attended to the words of the above mentioned 19th section. 
The "transportation" provided for by the Act, is applied in it, apparently, to the new penal settlements - not including Port Macquarie or Macquarie Harbour - altho' these places are too severe for the punishment of "removal" which is provided for the lighter class of offences. Port Macquarie and Macquarie Harbour, under their present establishments might very suitably have been the objects of His Majesty's appointment together with Norfolk Island and Moreton Bay under the 38th section of the late Act. As however the appointment by His Majesty in Council has not included the old penal settlements, and as they still are used for places of transportation and must for some time, particularly Macquarie Harbour, be devoted to that purpose, the magistrates cannot [?] to be embarrassed by the words of the Act, which do not authorise such a sentence of transportation thither. ii 
This having arisen from an imperfect view in England of the state of the colony, I take the liberty of suggesting to your Excellency that an act of Council, doing what the King in Council might have done, will remedy the evil. Doubts may be entertained of the authority of Your Excellency in Council to make a law for this purpose, but my opinion is, after much hesitation, that it may be done with propriety, and that the occasion requires that it should be done. 
Many sentences appear to me to be [?] in consequence of the framing of the act itself, and almost independently of the magistrates: - others seem to have been passed incorrectly from want of sufficient attention to its words. 
This seems to be the case wherever corporal punishment is inflicted in addition to transportation, as too frequently has been done. Sentences also occur by which the criminal is ordered to suffer transportation as well as extension of his original term of servitude; and offences of the second or lighter class are often punished by sentences applicable by the act only to the heavier classes of crimes.iii 
I will not trouble your Excellency with references to the cases in the accompanying list upon which I have formed these remarks; and I trust I need not disclaim and dispositions of consciousness on the magistrates. The act of Parliament aims at a most important object - a just apportionment of punishment to crime - and the gentlemen may find some of its provisions new, and perhaps difficult to be complied with. But the returns which they are now preparing, will permit amply material for such remarks as they may think proper to make on the subject; and the review of what they have done seemed to present a proper opportunity for me to lay before your Excellency what I have myself observed. 
Upon the former inconvenience arising from the act itself, I have taken the liberty to suggest a remedy - upon the latter I also humbly recommend that a letter be sent to the magistrates by your Excellency's secretary, intimating to them that serious doubts have been entertained of the legality of certain classes of the decisions under the above mentioned section of the New South Wales Act.iv 
I have the honor 
Your Excellency's obedient servant 
S Bannister 


This document was selected, edited and transcribed by David Roberts, University of New England.

For fuller discussion of this important opinion by Bannister, see Lisa Ford and David Andrew Roberts, Legal Change, Convict Activism and the Reform of Penal Relocation in Colonial New South Wales: The Port Macquarie Penal Settlement, 1822-26, Australian Historical Studies, Vol 46, Issue 2, June 2015, pp. 174-90. 

Published by the Division of Law, Macquarie University