The Sword and the Scales: The Military and Justice in NSW

2024 Annual Patron's Lecture by Major General the Hon Paul Brereton AM RFD SC

17 May 2024 marks the bicentenary of the Supreme Court of New South Wales and the proclamation of the Third Charter of Justice. This provides an occasion to review the long and enduring connection between the military and the administration of justice in this state. 

Under the First Charter of Justice of 1788, the military played a central role in the administration of justice in New South Wales. The first judicial officer in the colony was not a lawyer, but an Army Officer – the Deputy Judge-Advocate, Captain David Collins (pictured). The lecture draws on the story of his life and work, told by the late Hon JF Nagle – a distinguished judge of the Supreme Court and Commando officer – in Collins, The Courts & The Colony (1996), to cover his manifold responsibilities, including convening and presiding over the criminal and civil courts of the colony. The criminal court was constituted by him and six naval or military officers. This unique court administered the criminal law in NSW until the present Supreme Court commenced on 17 May 1824. The original civil court was constituted by the deputy judge-advocate and two “fit and proper” persons being resident in the colony, appointed by the Governor. It was superseded, under the Second Charter of 1814, by the first Supreme Court, presided over by a judge with two magistrates.

The Court’s bicentennial history, Constant Guardian: Changing Times – The Supreme Court of NSW 1824-2024, contains a chapter by Tony Cunneen, which relates the story of the nexus between the Court and the military, on which the lecture draws to illustrate the evolving but enduring nexus, including:

• overt judicial support for the despatch of contingents from the colony to the Soudan in 1885 and to South Africa in 1899,

• unconditional support for the war effort in 1914-1918,

• a more discerning approach during 1939-1945 and the Vietnam years,

• the use of judges of the Court to conduct military inquiries, and

• the service of judges as Judge Advocate Generals and on the Defence Force Discipline Appeals Tribunal.