Murder at Myall Creek

by Mark Tedeschi

  The Bill was rejected by a large margin. New South Wales would only abolish the death penalty in 1955.

  17

  SELF-GOVERNMENT AND A SLOW DECLINE

  In 1852, a Select Committee of the New South Wales Legislative Council was established with the concurrence of the Colonial Office in London to recommend a new Constitution for the colony that would make it self-governing. The committee consisted of ten members, of whom one was John Hubert Plunkett. WC Wentworth was its Chairman. The Committee sat for two years before agreeing on a model for final consideration by the Legislative Council and submission to London. There was substantial agreement between the Committee members on many issues, including the principle of a bicameral parliament along the lines of the British Houses. But on one issue there was considerable debate: whether the members of the Upper House should be elected or appointed. Always the Anglophile, John Hubert Plunkett was firmly in support of the Upper House mirroring the British House of Lords, in which members were appointed by the Monarch. A group of the Select Committee members, including Plunkett, also advocated that those appointed to the Upper House should be granted hereditary titles, as in the House of Lords, so as to create an Australian aristocracy. Wentworth championed this suggestion, no doubt with an eye to his own prospects for recognition.

  This was a very controversial topic throughout New South Wales. Should the colony attempt to emulate the mother country and establish its own aristocracy, or should it shun such affectations and create a more classless society, as the Americans had done more than seventy-five years earlier? People were divided on this issue largely based on the degree to which they saw the Westminster system as the quintessential model of good government, or whether they saw Royal appointments as creating undesirable social stratification. New South Welshmen had a choice to make: did they desire a local equivalent of the House of Lords, or did they want something distinctively Australian? When the issue of hereditary appointments was first ventilated in public in mid-July 1853, it was met with almost universal hostility in the newspapers and the general community.

  The issue of hereditary titles was decided not at a meeting of the Legislative Council, or by vigorous debate in the newspapers, but in a place of entertainment at a public meeting called to oppose the proposals for an appointed Upper House. It took place at the Royal Victoria Theatre in Pitt Street, Sydney, on 15 August 1853. The meeting was attended by a huge crowd, where a motion was discussed that:

  … the proposed Constitution Bill is radically defective and opposed to the wishes and interests of the inhabitants of this colony, who believe that a Representative legislature, consisting of two Elective Chambers, will alone possess that stability, energy, and usefulness which is maintained by public confidence, and without which no Government can permanently exist.1

  Twenty-five-year-old man of letters, poet and former ‘boy orator’ Daniel Deniehy gave a brilliant, witty speech in which he so thoroughly ridiculed the proposal for what he called a ‘bunyip aristocracy’ that it became a dead letter. Singling out by name WC Wentworth, James Macarthur, Terrence Murray and George Nichols – all members of the Legislative Council – he lambasted those who supported a local aristocracy:

  Because it was the good pleasure of Mr Wentworth and the respectable tail of that puissant Legislative body, whose serpentine movements (loud laughter) were so ridiculous, we were not to form our own Constitution, but instead of this we were to have an Upper House and a Constitution cast upon us, upon a pattern which should suit the taste and propriety of political oligarchs who treated the people at large as if they were cattle to be bought and sold in the market (loud cheers); or as they indeed were in American slave States, and now in Australian markets (tremendous cheering), where we might find bamboozled coolies and kidnapped Chinamen. (Immense applause.)

  And being in a figurative humour, he might endeavour to make some of the proposed nobility to pass before the stage of our imagination, as the ghost of Banquo walked along in the vision of Macbeth, so that we might have a fair view of these Harlequin aristocrats (laughter), these Botany Bay magnificos (laughter), these Australian mandarins. (Roars of laughter.)

  Let them walk across the stage in all the pomp and circumstances of hereditary titles.

  At this point in his speech, Deniehy sarcastically described the aristocratic titles that might be taken by the four named legislators, and proceeded:

  But, though their weakness was ridiculous, he could assure them that these pigmies [sic] might do a great deal of mischief. They would bring contempt on a country whose interest he was sure they all had at heart, until even the poor Irishman in the streets of Dublin would fling his jibe at the Botany Bay aristocrats. In fact, he was puzzled how to classify them. They could not aspire to the miserable and effete dignity of the grandees of Spain. (Laughter.)

  They had antiquity of birth, but these he would defy any naturalist properly to classify them. But perhaps it was only a specimen of the remarkable contrariety that existed at the Antipodes. Here they all know the common water mole was transferred into the duck-billed platypus, and in some distant emulations of this degeneration, he supposed they were to be favoured with a bunyip aristocracy. (Great laughter).

  It is remarkable to think that Australia rejected a local aristocracy and the class divisions that go with it largely because of a witty, sarcastic speech by a gifted young orator in a place of public amusement.2 Although the issue of hereditary titles was resolved, the debate between those who supported an elected Upper House and those who preferred an appointed one still raged.

  Plunkett took the position that if both Houses were elected it would lead to instability and the passage of hasty legislation, so he supported appointment to the Upper House by the Governor. Ever the Anglophile, he stated his reasons eloquently for favouring appointment by a system similar to the British House of Lords, even though that House had blocked Catholic emancipation for decades:

  The result of a Constitution cannot be seen until after a long lapse of years or perhaps centuries. But if we desire the Constitution which we have devised should be of an enduring nature, what better model can we have than the Constitution of the land ‘whose flag has braved 1000 years the battle and the breeze’ … All my readings, and my study, have inspired me with the greatest veneration for the noble Constitution of the United Kingdom. I believe it to be the most excellent of human institutions. It is no matter of theory or speculation, it is not a work of yesterday, that may be amended today and changed tomorrow; it is composed of many wheels, springs and balances, of counteracting and cooperating powers, all dovetailing in each other; and each of its parts seems to be fitted for the test; that to unsettle is to destroy … I assert that the elective principle in an Upper House is not congenial to the British Constitution, and that it is now proposed for the first time … I cannot conceive how monarchy can exist with an elective upper house.3

  In the result, those who favoured an appointed House won the day.4 The New South Wales Constitution Act to establish self-government passed its second reading in the Legislative Council on 2 September 1853, and was then reserved by the Governor and remitted to London. William Charles Wentworth and Edward Deas Thomson proceeded to London to advocate support for the Bill and combat any objections to it.5 With some amendments, it was given the Royal assent by Queen Victoria on 16 July 1855 and proclaimed by the New South Wales Governor on 24 November 1855.

  By virtue of the Act, New South Wales became a self-governing colony with a colonial Parliament, consisting for the first time of a fully elected Legislative Assembly and an Upper House – the Legislative Council – appointed by the Governor. The whole structure was modelled closely on the British Parliament. An Executive Council was established to advise the Governor in the exercise of his limited decision-making functions. Most importantly, the new Parliament had wide powers over domestic matters, including revenue raising and land, thereby side-stepping the overriding scrutiny of the Colonial Office in London and reducing
the role of the Governor to a subsidiary one with the same limited functions as the Monarch in England.6 The British Parliament, however, still retained an overriding power to disallow colonial legislation.7

  The newly constituted Parliament met for the first time on 22 May, 1856.

  * * *

  With the introduction of responsible self-government and a fully elected Lower House, John Plunkett was firmly of the opinion that the old administration should make way for the new. Under the 1856 Constitution, the position of Attorney General was a political one, in that the holder was required to be a Member of Parliament. Plunkett decided that he would relinquish his post. Perhaps he realised that the influence of the new Attorney General would never be as strong as it had been during the twenty years he had held office, and so it was a good time to depart. Maybe he appreciated that he was a lone ranger who did not have the stomach for the lobbying and bargaining that membership of a Ministry of elected leaders would entail. In any event, he announced his retirement, which prompted an outpouring of accolades for the man now universally respected as an elder statesman who had guided the colony through more than two decades of progress – legally, politically and administratively. On 24 June 1856, the judges of the Supreme Court paid tribute to his twenty-four years as Solicitor General and Attorney General, when the Chief Justice said:

  When the contests of party shall have passed away, and the voices of friendship and calumny have been like silenced by death, and the grave has closed over the generations which now know us, there will be no name recorded by the pen of history, in Australian annals, with juster or more enduring praise than that which belongs to Mr Attorney General Plunkett.8

  These lofty expectations would prove to be quite exaggerated. Plunkett was offered a public dinner in his honour by members of the Bar, but he declined, claiming that he was not yet finished in his public life, that he intended to maintain practice as a barrister, and that it would look too much like a ‘valedictory manifestation’ if the dinner were held.

  Plunkett’s last major achievements as Attorney General were to pass through the old Legislative Council two highly important Acts. The first was the Marriage Act, which for the first time legitimised civil marriages and gave equality of recognition to marriage celebrants of all the Christian religions. He had worked steadily on the Bill for four years, starting in 1851, until he was assured that it would pass, which only came about in 1855. He had ‘hastened slowly’ to achieve this monumental legislative step. In 1855, the Bill passed by twenty-seven votes to ten. Several months later, John Plunkett was responsible for the passage of the Registration of Births, Deaths and Marriages Act, which created the most detailed, centralised, public record keeping of these life events in the world, to such an extent that it became a model for other countries.9 These life events had previously been recorded by religious authorities.

  These two legislative provisions were Plunkett’s final contributions to the laws of New South Wales under the old form of government. It can be seen that they both involved a further secularisation of public institutions and functions. The transition to responsible government in 1856 marked the apogee of John Plunkett’s influence and power. Hereafter, at age fifty-four, he was increasingly viewed as an honourable elder statesman whose time had almost come to an end and whose influence had waned. The new guard, which would lead the colony forward under responsible self-government, did not include him.

  * * *

  In late 1855, John Plunkett decided he would stand for election in one of the four seats representing Sydney in the new Legislative Assembly. However, because he was still working assiduously as Attorney General and due to remain in public office until the expiry of the old Council in early June 1856, he considered it inappropriate to publicly promote his own candidature. By early January 1856, the campaigning by others for the seats of Sydney had begun in earnest. Four prominent and seasoned politicians decided to form what was then called ‘the bunch’ but today we would call a ticket. They were Henry Parkes, Charles Cowper, James Wilshire and Robert Campbell. Two of them, Parkes and Cowper, were among the shrewdest politicians in the colony, and they had many supporters, one of whom – the clergyman John Dunmore Lang – was vehemently opposed to Plunkett’s candidacy. It was Lang who raised the religion issue against Plunkett, suggesting that if Plunkett won a seat he would not be representing Sydney, but Rome.10

  Although Plunkett was reluctant to campaign while still serving as Attorney General, he had substantial support in the community, and, most importantly, Reverend John West, the editor of the Sydney Morning Herald, was keenly promoting his cause. At this time, the Sydney Morning Herald had the largest circulation of any newspaper in Australia;11 in fact, its daily circulation was higher than all but the biggest two papers in England. John West, a Congregationalist minister at the Pitt Street Church, had advocated strongly for the abolition of transportation and he was a keen champion of Aboriginal welfare, so he had much in common with Plunkett. At a critical stage of the election campaign, in an editorial on 22 February 1856, his paper summarised Plunkett’s contribution to public life over nearly twenty-five years and noted:

  The patriot of the highest character is the man who honestly and without reserve, abjures all pretensions unsuited to modern relations, and to colonial life; one who gives his days and nights to preserve the line which separates the civil rights and obligations of all from questions of religion.

  The paper made this comment about John Plunkett’s extensive career in the public sector:

  … neither in his sympathy as an Irishman or in his profession as a Roman Catholic, will [he] ever sacrifice the general interests of the community, or suffer himself to be an instrument of any faction, whether polemical or national.

  The paper went on to remind readers of some of his notable achievements, namely: ameliorating the worst aspects of the convict system, supporting public education, establishing the civil rights of minority groups, including the Jews, introducing new marriage laws, his support for the end of transportation, his general administrative talents, his determination to protect the Aborigines, and even his opposition to Asian immigration.

  Finally, the paper commented on his personal integrity:

  The personal character of Mr Plunkett is blameless. We do not think any human being – not himself infamous – would be found to question Mr Plunkett’s honour, or cast the slightest stain upon his character as a man and a gentleman. In so long a career he must have awakened animosities, and come into collision with many; but it must be a rare degree of personal excellence, which through such various scenes, and in an office so calculated to create bitter recollections, has preserved to him the confidence of almost every respectable member of the community. All, whether his political antagonists or not, bear testimony to Mr Plunkett’s worth, and acknowledge that whatever may be his opinions, he stands in the highest place as an honourable and upright man.

  One aspect of that integrity was his failure to enrich himself while in public office:

  While other members of his profession are found connected with banking establishments, have made large fortunes in speculative pursuits, and shared in all the advantages of a rising colony, the Attorney General has limited himself to his profession, and rejected all the means of gain which could in the remotest degree compromise the administration of justice.12

  The Empire, on the other hand, couldn’t hide its sarcastic contempt for John Plunkett:

  Mr Plunkett has been a member of the Legislature the greatest length of years, but there is no man of prominence to whose account so little is set down in the records of the Legislative Council. Even his votes, if examined by any constitutional test, in nine cases out of ten would tell against him as a public man. Yet we have often seen occasion to admire Mr Plunkett; and when we have heard the bitter contempt for his intellect often expressed by the ablest of his contemporaries in turn, by Mr Wentworth, Mr Richard Windeyer, Mr Robert Lowe, and Dr Lang, we have thought he was unjustly t
reated.13

  It was only several days before the elections for the four seats of Sydney on 17 March 1856 that John Plunkett felt comfortable to speak publicly in support of his candidacy. It was not enough. The people of Sydney looked to the new bunch to lead them and Plunkett came fifth. He was then nominated to stand for two country seats, Bathurst and Argyle, and he won them both.14 John Plunkett was the only pre-1856 government official to be elected to the new Parliament. The election resulted in sixteen native-born representatives in the Legislative Assembly out of a total of fifty-four.

  The new Assembly met for the first time on 22 May 1856. Plunkett had to choose between the two seats he had won, and so resigned as the member for Bathurst and took his place representing the electorate of Argyle. The first Premier of New South Wales – the position was then known as Colonial Secretary – was Stuart Donaldson. He offered the position of Attorney General to Plunkett, who declined it. However, another honour soon came in its place. On 6 June 1856, John Hubert Plunkett was appointed as the first Queen’s Counsel in Australia.15

  The first Parliament of New South Wales was a most unstable one, with the first two Premiers quickly losing the support of the Assembly. The first Ministry only lasted from late May until 22 August 1856, when Donaldson resigned as Premier. Charles Cowper took over as the new leader, and he also asked Plunkett to become Attorney General, which again Plunkett declined. A few weeks later, in September 1856, Cowper was also forced to resign, and Henry Watson Parker assumed the leadership. For a third time, Plunkett was asked to accept the position of Attorney General, and for a third time he refused.16