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Overview
The imperial view of Australian law was that it was a weak derivative of English law. In An Unruly Child, Bruce Kercher rewrites history. He reveals that since 1788 there has been a contest between the received legal wisdom of Mother England and her sometimes unruly offspring. The resulting law often suited local interests, but was not always more just.
Kercher also shows that law has played a major role in Australian social history. From the convict settlements and the Eureka stockade in the early years to the Harvester Judgement, the White Australia Policy and most recently the Mabo case, central themes of Australian history have been framed by the legal system.
An Unruly Child is a groundbreaking work which will influence our understanding of Australia's history and its legal system.
Product Details
| ISBN-13: | 9781863738910 |
|---|---|
| Publisher: | Taylor & Francis |
| Publication date: | 10/01/1995 |
| Pages: | 272 |
| Product dimensions: | 6.00(w) x 9.00(h) x (d) |
About the Author
Read an Excerpt
An Unruly Child
A History of Law in Australia
By Bruce Kercher
Allen & Unwin
Copyright © 1995 Bruce KercherAll rights reserved.
ISBN: 978-1-86373-891-0
CHAPTER 1
ABORIGINAL SUBJECTS OF THE CROWN SUBJECTS OF THE CROWN
In 1811 an Aboriginal sailor made a complaint to Governor Macquarie, the paternalist head of the colony of New South Wales. He claimed that he had not been paid as a crew member on the last voyage of the King George. Macquarie sent the case to a magistrate, Alexander Riley, with a request that it should be very carefully considered. Riley did so, but dismissed the claim. This was not necessarily a racist decision, since the outcome is likely to have been because of the law's bias against workers, whatever their race. The sailor had joined the voyage on the basis of receiving a share of its profits. However, as was common in these cases, the cargo barely covered the men's expenses, and they had therefore worked merely for their keep. Under these agreements the crews were speculators rather than employees, and the speculation often ended in failure. The claimant had also left the ship early, at Port Dalrymple in Van Diemen's Land, which also deprived him of his right to recover any money. Local law followed an odious English common law rule that prevented recovery by those who failed to complete any part of their obligations even if they had done most of what they had promised.
This is the earliest surviving record of a civil action by an Aborigine in an Australian court. In reporting the case, the Sydney Gazette noted on 23 February 1811 that the colonial government was determined 'to afford every protection and support to the Natives that they may stand in need of; and particularly to encourage them to useful industry by requiring a scrupulous observance of every contract in which they may be interested'. The policy was one of both paternalism and assimilation. The claimant in this case was one of the few Aborigines who acted in accordance with the hopes of the imperial government, humanitarians and Christian reformers. By joining the crew, he had shown an interest in British life and had to be protected.
The unusual way in which the case reached court, and the choice of court to hear it, both indicated that Aborigines were not treated in the same way as white colonists. If the claim had been brought by an Englishman, he would have done so directly in the colony's superior court, the Court of Civil Jurisdiction. The magistrates usually heard criminal actions, but Governor Macquarie issued proclamations (which were of dubious imperial legality) giving them power over civil cases as well. It is also likely that the Aborigine's claim was for more than 40 shillings, the upper limit on the civil power of the magistrates' courts. These were the courts of the poor and of those whose legal claims were imperially suspect. Under English law, convicts were unable to sue, but they were allowed to do so in the magistrates' courts of New South Wales. This case shows that Aborigines were released from a similar legal limbo in the same way.
He was not the first Aborigine to adopt the commercial activities of the colonists nor the first to complain to the colonial authorities over a civil wrong committed against him. Previous complaints had been met more informally. When a seaman destroyed an Aboriginal canoe, for example, he was ordered to give its owner a complete set of clothing. In another case, an Aboriginal healer claimed £5 for treating a spear wound, on the ground that a white surgeon would have charged £10. After threatening to complain to the governor, he was given a suit of clothes and a bottle of rum.
The ambiguity of the legal position of Aborigines was also evident in the opinions of Richard Atkins, the second Judge Advocate in New South Wales. In giving his view of the legal position of the Aborigines who were attacking white settlers at the Hawkesbury River, he stated the dilemma that would nag black and white relationships for much of the nineteenth century. He said that Aborigines were within the pale of H.M. protection; but how can a Native, when brought to Trial, plead Guilty or Not Guilty to an Indictment, the meaning and tendency of which they must be wholly ignorant of? Plead they must before Evidence can be adduced against them, and Penal Laws cannot be stretched to answer a particular exigency. Nor could they give evidence in court, he said. The only practical course, claimed Atkins, was to pursue and punish them when they deserved it.
within the pale of H.M. protection; but how can a Native, when brought to Trial, plead Guilty or Not Guilty to an Indictment, the meaning and tendency of which they must be wholly ignorant of? Plead they must before Evidence can be adduced against them, and Penal Laws cannot be stretched to answer a particular exigency.
The dilemma was that Aborigines were apparently British subjects, but they could not be prosecuted or protected in practice because of doubts about their understanding of English law. The assumption of both local officials and those in London was that New South Wales had been acquired by peaceful settlement of an empty land, rather than by conquest or cession by the original occupiers. From the colonists' viewpoint this was merely a technical distinction, but from the Aborigines' viewpoint the difference was crucial. In a settled colony, they became British subjects from the moment the occupation began. The notion that the land was empty implied that any people who had previously wandered on it had done so without rights or laws.
Conquest and cession, however, are consistent with the idea that the original possessors of the country had held their land through some notion of right, and that this had been wrested from them or given up by them. If the Aborigines had been classified as enemies in a conquest rather than subjects in a settled colony, they might have been accorded some dignity and a morally strong claim to retain some of their pre-existing rights. One makes treaties with one's enemies, not with fellow subjects.
None of this was very clear at the time the occupation of Aboriginal Australia began in 1788. It took a century for the terra nullius doctrine to be firmly established as the legal explanation of the occupation of Australia. The legal status of Aborigines was the subject of passionate debate among the colonists and imperial officials for a hundred years.
BRITISH SUBJECTS OR ENEMIES?
The legal position of Aborigines was determined slowly and hesitantly, through both physical and verbal conflicts. The imperial authorities who established the legal foundations of New South Wales seem to have assumed the settlement theory and thus that Aborigines were British subjects from the start. Like most legal questions, this appears to have been an afterthought in the rush to establish the colony. The First Fleet sailed only nine months after the decision to establish New South Wales. In their haste, for example, the imperial officials failed to pass a statute to provide for a civil court. The criminal law was the centre of their legal attention, and only its court had parliamentary approval. Like the civil law, the legal position of Aborigines was determined by royal decree rather than statute, but even that was ambiguous.
The instructions given to the first governor, Arthur Phillip, ordered him to secure the colony against Aboriginal attacks, but said that
You are to endeavour, by every possible means, to open an intercourse with the natives, and to conciliate their affections, enjoining all of our subjects to live in amity and kindness with them. And if any of our subjects shall wantonly destroy them, or give them any unnecessary interruption in the exercise of their several occupations, it is our will and pleasure that you do cause such offenders to be brought to punishment according to the degree of the offence.
Similar instructions were given in 1805 to those who established Hobart Town in Van Diemen's Land. The limit on the friendship to be shown towards Aborigines was shown by the fact that Phillip was told to grant land to the colonists. There was no reference to the rights of its prior occupiers.
From the beginning then, imperial law placed Aborigines in an ambiguous position. Their land could apparently be taken without compensation, yet they were to be protected. The attitude was one of the paternalist care that might be given to inferiors, rather than a recognition of the right to be defended as British subjects. If Aborigines were compliant, they were to be protected, but if not, Phillip was authorised to see to the defence of the colony. There was no recognition that the Aborigines had their own notion of right, that from their viewpoint they were entitled to defend themselves against invasion. The cultural arrogance of the British was evident even before the First Fleet sailed.
The paternalist attitude of the governors' instructions was continued by the governors themselves. Phillip did not treat Aborigines as subjects of the Crown, with the basic notions of equality and rule of law that that implied. He captured some of them in disastrous attempts at assimilation and ordered punitive expeditions against the groups that made doomed efforts to match guns with spears. Military and police raids against dissenting Aboriginal groups lasted from the eighteenth to the twentieth centuries, regardless of the legal status of these subjects. These raids had commenced by December 1790. Under English law, groups of British subjects could not be punished for the actions of individuals, and there could be no corporal or capital punishment without trial except in self-defence or in the heat of battle in a period of martial law. Neither the theory of settlement nor those of conquest and cession justified the imperial and colonial attitudes to Aborigines. They were simply punished and occasionally protected, rather as a wayward nineteenth-century father might do, regardless of the formal law's view of their status.
This rubbery attitude to English law was common in the early colony, where local decisions frequently took the place of strict attention to English legal propriety. What is striking about the legal position of Aborigines, however, is that this uncertainty and failure to observe English law did not begin to be rectified until half a century after colonisation began. One of the most important issues concerned criminal liability for inter-racial clashes. Whites had been found guilty of murder of Aborigines as early as 1799, although they were not hanged. The uncertainty continued for another 40 years. On many occasions, white killings of blacks were ignored. In other areas of law, the primacy of English law was firmly asserted much earlier.
A smokescreen of legal confusion and argument covered up a continuing pattern of killings at the frontiers of the Australian colonies. Each expansion of settlement was followed by the same tragic pattern: as they were pushed off their land, Aborigines sometimes replied with force, followed by unofficial and official massacres of Aboriginal family groups. The indigenous population of Australia fell from 300 000 to 50 000 in the first century of European occupation. At least 20 000 Aborigines were killed by white violence, about ten times the number of whites killed by blacks. The rule of law was tested at each stage of this expansion, and nearly always failed. Aborigines were placed in an impossible position by white law. When they responded aggressively, they were massacred by superior weapons and communications, or tried for murder. When they did not, they lost their land anyway and were assumed to have acquiesced in one of the largest land grabs in history.
The most thorough official reaction to Aboriginal attacks was in Van Diemen's Land, that land of extremes where bushranging began and convict discipline was carried so much further than elsewhere. The island's name carries connotations of brutality towards convicts, but its Aboriginal inhabitants were much greater victims of British policies than convicts, partly because English law was looking the other way. Writing in 1836, Henry Melville described the rapid expulsion of Tasmanian Aborigines from their island, the most tragic story in Australian history. It commenced, he said, in 1824, and stock keepers were initially to blame. This was more than a disconnected series of raids and reprisals: each side killed the other, regardless of the English notion of individual responsibility. In effect, as Melville said, there was an unofficial war between blacks and whites in Van Diemen's Land.
In response to these ceaseless killings, the English solution of exile was suggested, but for the whole race of people, not for individuals, and supposedly for their protection rather than punishment as was the case in convict transportation. Exile was not carried out until after the demarcation proclamation of 1828, under which Aborigines were ordered not to enter settled districts. This cannot have been lawful by imperial standards, since it so obviously contradicted the liberties guaranteed by the common law. Later, a military and civilian line attempted to push the remaining Aborigines to a peninsula. This failed, but the enticements (and, possibly, trickery) of the humanitarian Protector of Aborigines George Robinson and others managed to gather together some of the Aboriginal survivors, who were then taken to Flinders Island. After that, a few were taken to the Port Phillip district, where some fell into further conflict with whites. More than a hundred Tasmanian Aborigines were buried on Flinders Island, a memorial to the failure of the law to protect British subjects.
With the increase in violence in the 1820s, Governor Arthur, like David Collins almost at the beginning of settlement in Van Diemen's Land, proclaimed that Aborigines were as much to be protected by law as whites. These proclamations were frequently ignored. In this colony it was blacks who were hanged after incomprehensible trials, not whites. In 1830 the imperial government reminded Arthur of his obligation to prosecute whites for maltreating Aborigines, but he responded by declaring martial law over the whole colony, giving a veneer of legality to the killings, and by planning to drive all Aborigines to one small area. He decided that it was unwise to emphasise that whites could be hanged for the murder of blacks. In doing so, he succumbed to local pressure, ignored his instructions and neglected the most basic rule in English law, that against murder.
Arthur, no doubt, felt frustrated at being unable to stop the killings short of the destruction of the Aborigines. The conflict began with the forcible taking of Aboriginal land. This was the great wrong, and no solution was possible without official recognition of it, but such an acknowledgment was politically impossible. Local opinion governed the shape of official reactions, as it so often does. Arthur's demarcation proclamations might have been unlawful by English standards, but they had the form of law. Even they did not justify the massacres, however. On this issue, as on so many others, local law differed from that of England, and the local people's version of what was right conflicted with both. Here, the results were tragic.
If it is correct that Aborigines were British subjects, the official and unofficial killings that took place in Van Diemen's Land were mass murders except in cases of immediate self-defence or within the limits of martial law. Martial law was in force on the island at times, but even this had limits.
A declaration of martial law was justified when 'in time of rebellion the Crown might, for the restoration of peace, declare war, and exercise its severities, against rebels'. It was made when a rebellion was beyond the control of the civil authorities. The power to declare martial law because a rebellion existed was within the Crown's prerogative, which the colonial governors assumed to themselves as part of the powers delegated to them by the Crown; it was simply the establishment of absolute and discretionary military power, overruling all ordinary law. The military commander took control over the area in which it had been declared, and over civilians who answered the call for assistance. The governors retained power to declare that it had ended, however.
A soldier who disobeyed his orders was subject to military discipline, but there were few civil limits once martial law was proclaimed. In the same way, the governors, as commanders-in-chief in the colonies, undoubtedly had military control over their subordinates to whom they gave orders. In a martial law declaration by a governor, any statement that loss of life was to be limited could therefore have been only an exhortation as far as civil law was concerned, and not enforceable in the civil courts, at least when the acts were done honestly under the declaration. The soldier's or civilian's state of mind was the key point when considering attacks on non-combatants such as women and children. The killing of a young child, for example, could not be an honest act against a rebellion within the scope of martial law, and would be murder, punishable in the ordinary courts. Similarly, a captive rebel should not have been put to death without at least an informal military trial. The consequence was that martial law did not entitle the troops or settlers to whom it was directed to kill whatever Aborigines they came across. They were subject to military limits and, in some cases, to civil law as well. Obviously, if no declaration of martial law had been made, no soldier or settler could lawfully kill an Aborigine except in the act of self-defence.
(Continues...)
Excerpted from An Unruly Child by Bruce Kercher. Copyright © 1995 Bruce Kercher. Excerpted by permission of Allen & Unwin.
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Table of Contents
Abbreviations viiiPreface ix
Introduction: English flotsam xi
PART I FRONTIER LAW 1
1 Aboriginal subjects of the Crown - 3
2 The contradictions of convict law - 22
3 Amateur law at the frontier - 43
PART II IMPERIAL ORTHODOXY, 1820-1900 65
4 Innovation smothered? Formal changes from the 1820s to the 1850s - 67
5 The power of the judges: judicial review and the attachment to England - 82
6 Repugnant legislation: law making from 1824 to responsible government - 103
7 Colonial freedom: law making between responsible government and 1900 - 124
PART III FEDERATION: DEFERENCE AND INDEPENDENCE 155
8 Creeping towards legal independence, 1901-1960 - 157
9 The rebirth of Australian legal doctrine, 1960-1995 - 177
Notes and sources 206
Index 243