Indigenous tribes possessed the Australian continent for millennia, managing its vast landscape and fragile environment.  In R v Lowe (1827), the Supreme Court held that the indigenous inhabitants had the rights and duties of British subjects.  English law, however, treated the land as something to be granted, bought, leased and transferred, without regard for the rights of the traditional owners.  Unchallenged Executive action and unchecked private licence would see Indigenous people pushed out of traditional lands and prevented from hunting and fishing according to their customs of millennia.  In Attorney General v Brown (1847), the Supreme Court ruled that the Crown had original title to all ‘waste land’ after 1788.

British colonisation of Australia, and through it the founding of the Supreme Court, owes much to the operation of criminal justice in Georgian England. Harsh, iniquitous and ineffective at deterring crime, its wide range of capital offences was designed to protect property, rather than public safety. The perceived threat was a criminal class, which burgeoned amid the urbanisation, inequality and squalor of industrialisation. When the futility of public hangings and prison hulks became apparent, and transportation of convicts to North America was no longer an option, the British Government turned in desperation to a penal colony in the Antipodes.

Governor Lachlan Macquarie emancipated many convicts and appointed them to positions in all spheres of life, including the law and medicine. Some of Macquarie’s pardons were overturned, but that did not halt the growth of an increasingly assertive class of freed convicts and their native-born offspring. Opposing Macquarie were the Exclusives; retired officers, free settlers like the Reverend Samuel Marsden, and wealthy pastoralists like John Macarthur. The Exclusives had the pretensions of a landed aristocracy, based on a reliable supply of assigned convict labour. The British Government came to share the Exclusives’ dismay that Macquarie was soft on convicts.

English law arrived with the First Fleet in 1788. The First Charter of Justice (1787) established a civil court and a court of criminal jurisdiction, headed by a deputy judge-advocate and six military officers, many of whom had no legal training. The Second Charter of Justice (1814) created three new civil courts, including the Supreme Court of Civil Judicature. The colony’s first judge was Judge Jeffrey Bent, whom one historian described as ‘vain, pretentious, insolent and un-conciliatory’. Bent refused to allow former convicts to appear as solicitors and heard no cases at all for two years. He clashed frequently with Governor Macquarie, who wrote that ‘the highest law officer in the colony is the root of every faction and cabal that takes place in the colony’. 

By the 1820s New South Wales had begun to prosper, but to the British Government this was incompatible with the colony’s function as an antipodean prison; ‘an object of real terror.’ On 5 January 1819 Commissioner John Bigge was appointed to review the colony’s affairs. His third report, Inquiry on the Judicial Establishments of New South Wales and Van Diemen’s Land, recommended forming a Supreme Court and a Legislative Council. The Imperial Parliament passed the New South Wales Act 1823. The Third Charter of Justice reached Sydney and was proclaimed with the opening of the Supreme Court on 17 May 1824. 

Establishment of the Supreme Court and the office of Chief Justice meant that the administration of justice in the colony required an appropriate building. The King Street Courthouse, built between 1820 and 1827, was the first permanent home for the Supreme Court. Its three main buildings remain in operation today: the original courthouse on the corner of King and Elizabeth Street; the Registry on Elizabeth Street (built 1859); and the St James Road Banco Court (built 1894-96). By the 1830s use of King Street Courthouse was growing rapidly.

In response to the overcrowding and chaotic state of King Street Courthouse, the construction of a new criminal courthouse in Darlinghurst was initiated. In 1835 Governor Bourke directed the design of the courthouse to be situated outside Sydney Town, upon the hill opposite the new gaol, for convenient prisoner access and to separate criminal matters from civil matters in the city. Criminal trials, however, continue in King Street to this day.

By the early 1820s, exports of wool to Britain began to generate immense wealth. Land west of the Great Dividing Range was granted to white pastoralists with no recognition or regard for the traditional rights of Aboriginal people. Between 1820 and 1824, the white population increased tenfold in the Bathurst region, from 114 to 1,267. There, conflict between settlers and the Wiradjuri people escalated and on 14 August 1824 Governor Brisbane declared martial law. Aboriginal leader Windradyne led his warriors in a guerrilla warfare campaign, attacking isolated farms. Settlers responded with mounted reprisal raids and mass poisonings until martial law was repealed on 11 December 1824.