Francis Forbes - New South Wales

New South Wales

In 1822, he was appointed Chief Justice of the Supreme Court of New South Wales, to oversee the reform of the administration of the legal system in the colony, following the inquiry into the colony's affairs by commissioner John Bigge. Before departing for Australia, he helped draft the "New South Wales Act" of 1823 (4 Geo. IV c. 96); this bill, along with the "Charter of Justice" issued under it on 13 October 1823, the old legal tribunals of convict days were superseded by a Supreme Court with comprehensive legal jurisdiction; under the new system, not only was he the sole judge, subject only to the appellate power of the Governor, but was an official member of the Executive and Legislative Councils, and all colonial legislation had to bear his imprimatur.

Forbes arrived in Sydney in March 1824, and Court commenced on 17 May 1824. The governor, Sir Thomas Brisbane, was impressed by Forbes, and in his dispatches of 1 July and 12 August 1824 to mention that "since the arrival of the chief justice the state of the Colony has assumed a new tone". Forbes had no difficulties with Brisbane, but it was not long before he came in conflict with the new governor, Sir Ralph Darling. It was proposed to pass acts for the purpose of restraining the liberty of the press, and Forbes refused to certify to them as he considered they were repugnant to the laws of England. He pointed out how necessary it was to go carefully, as in the then conditions of the colony the people looked upon the supreme court as their protection against absolute power. "I had been appointed by Parliament," said Forbes, "to see that the laws of the Empire were not encroached upon . . . I refused to certify the Governor's Bills because I thought them repugnant to law . . . What legal right could the Governor claim to press me further?". After great discussion the issue went to the colonial office whose legal advisers were of opinion that in refusing to grant his certificate to the act for licensing newspapers, Forbes was right, and that in regard to the newspaper stamp act he was wrong. but as there was no reason to doubt that the judge had formed his conclusion honestly, he had executed his duty in acting upon that opinion. Forbes's workload had been and continued to be heavy, his controversy with Darling was harassing, and his health suffered.