Reading 2: The Legacy of History
"It is important that we understand the legacy of Australia' s history, as it
helps to explain the deep sense of injustice felt by Aboriginal people,
their disadvantaged status today and their current attitudes towards non-Aboriginal
people and society...."
Chapter 10 of Volume 2 of the National Report Royal Commission into Aboriginal Deaths in Custody
- 2A. Prior to the British arrival
- 2B. Dispossession
- 2C. Frontier period
- 2D. Police
- 2E. Aboriginal people & the Law
Aboriginal Society Prior to British Arrival
10.2.1 The fact of prior Aboriginal occupation cannot be omitted from any understanding of Aboriginal history or of contemporary Aboriginal claims. Aboriginal history dates back somewhere between 50,000 and 100,000 years, and archaeological investigations and improved dating techniques promise further breakthroughs in our knowledge of this history. Regional variations here may not be particularly significant, because they reflect the state of archaeological research--relatively limited in Australia--as much as indicating length of Aboriginal occupation. Aboriginal art of an extremely sophisticated kind and of an extreme age has been found. Aboriginal people had to adapt to dramatic climatic changes which affected not only food resources but the very boundaries of the land itself. Little is known about the Aboriginal past, though some dreaming stories or clan sagas offer clues to their ancient history, as do earlier art galleries.
10.2.2 Our existing knowledge of Aboriginal occupation thus shows that it is extremely misleading to imply that Aboriginal people can be categorised as another minority ethnic group. Any immigration which hypothetically occurred so long ago that the time scope is almost impossible to conceive is in vast contrast to one which commenced only 202 years ago. While migration is undeniably a central part of non-Aboriginal experience, it is not a significant part of Aboriginal history or consciousness. In fact, Aboriginal people may have occupied the same area for longer than any other people in world history. Aboriginal people therefore have an ancient history of having occupied the land we now call Australia.
10.2.3 Many non-Aboriginal Australians imagine Aboriginal people only lived in the middle of the desert, and have no idea that they once lived in areas which are now cities. Population figures in 1788 are estimated at 750,000, with dense populations in New South Wales and Victoria along the coast and rich water courses. The richness of this heritage is still largely ignored. The diversity of Aboriginal land-use patterns, food sources, technology, clothing, and shelter is little known. For example, Aboriginal people in western Victoria wore fur cloaks and lived in more permanent villages with stone houses. In warmer resource-rich areas, Aboriginal people stayed for months at a time, though lighter shelters have weathered away, denying us much ancient evidence. Careful land-management techniques were applied to harvest food resources, and sensitive and skilful methods were used to hunt game. Great physical agility, dexterity and knowledge of animals and land were required to hunt wily game and gather inaccessible foods. Fishing from the rivers was widely practised. Aboriginal people had a balanced diet, and they had also been quarantined from many of the diseases which affected Europeans.
10.2.4 The social and economic organisation of Aboriginal groups varied greatly throughout Australia, but some general observations can be made. Aboriginal society had a relatively egalitarian social structure where age, gender, totemic and land affiliations were important demarcations. Women usually provided the staple food supply, and they owned and had special responsibilities towards sites in the landscape, associated song cycles and Dreaming stories. They had exclusive control of the secret ceremonies of reproduction, and their maternal function as child rearers was highly valued. Men hunted and also played an important role in nurturing and teaching children, and there were special responsibilities for a wide network of kin in relation to each child. When a baby was born, she or he immediately had a niche in a complex cosmology defined by Dreaming stories. Identity was secure, and the child had a variety of land relationships via its conception Dreaming, as well as inheritance through its father and mother. The child would gradually be introduced to responsibilities towards land and kin and the strict marriage rules. Values which were taught in traditional Aboriginal society included sharing, respecting the wisdom of age, looking out for the young, gentle treatment and close observation of plants and animals, and the fulfilment of kinship obligations. Families and clans travelled the land throughout the year. They harvested the land's resources when the opportunity was available, and looked after special sites to which they had responsibility. Men and women separately facilitated the reproduction of resources through ritual nurturing. They also spent much time working or negotiating business in the company of their own gender. Decision making and law enforcement were divided between men and women, and ultimate power was often accorded on the basis of custodial obligations towards relevant land or kinship obligations. The tablet of the law which was ensconced in the landscape itself was explained through Dreaming stories as people travelled. While women were in charge of their own business - sacred and secular, men' s power often appears to have been more highly valued in regard to law and punishment matters concerning the larger group. In some areas, women's law was more powerful than others and older women held high status. Gatherings of many clans took place from time to time to conduct social, marriage and religious business. Ritual confrontations were also staged to avenge wrongdoing, and other transgressions could be punished physically or through potentially fatal sorcery. Dancing and singing, story telling, drawing, painting and sculpture took place all year round, and through such entertaining means everyone learnt the law of their group.
10.2.5 Aboriginal groups often met other outsiders before the British
arrived. In the Northern Territory and parts of northern Queensland,
Macassan trepang gatherers had been interacting with Aboriginal
people off the
coast since at least 1700. Relatively harmonious relations existed,
and they traded with and employed local Aboriginal people. Such
items as glass
thus filtered into Aboriginal tool-making. Macassan words have
been incorporated into some Aboriginal languages. Some intermixing
and the all-male
crews had sexual associations with the local women.
Royal Commission in Aboriginal Deaths in Custody
Australian government Publishing Service Canberra 1991
Full report available on the web.
The Dispossession of Aboriginal People
10.3.1 The history of Aboriginal dispossession is central to understanding contemporary Aboriginal and non-Aboriginal relations. Colonial takeover was premised on the assumption that European culture was superior to all others, and that Europeans could define the world in their terms. A colony could be established by persuading the indigenous inhabitants to submit themselves to its overlordship; by purchasing from those inhabitants the right to settle part or parts of it; by unilateral possession, on the basis of first discovery and effective occupation.4
10.3.2 Possession of Australia was declared on the basis of unilateral possession. The land was defined as terra nullius, or wasteland, because Cook and Banks considered there were few 'natives' along the coast. They apparently deduced that there would be fewer or none inland. Their observations were soon proven incorrect. The governors of the first settlements soon found that Aboriginal people lived inland, and had special territories and associations with land on a spiritual and inheritance basis. Nonetheless, they did not amend the terms of British sovereignty.
10.3.3 In the first hundred years there was no consensus about the basis of British sovereignty. In 1971 Justice Blackburn ruled that all rights to the land were extinguished after 1788, and that because native title had not been legislated by the British it was therefore not part of Australian law. The correctness of this ruling in the Gore Case (Milirrpum v. Nabalco) may be tested this year (1991) in the High Court of Australia. Governor King commented in 1807 that he considered Aboriginal people the 'real Proprietors of the Soil', and lively debate over the issue continued from the 1820s to the 1850s.5 The justice of the British takeover was far from clear cut, and what happened in the Australian colonies was in many ways out of step with international trends. Henry Reynolds has vigorously challenged the legal and moral assumptions of European occupation in Frontier (1987) and The Law of the Land (1987).
10.3.4 In the debate about British sovereignty commentators, lawyers
and others have relied on the writings of Sir William Blackstone:
Commentaries on the Laws of England. There is no doubting the importance
work which played a unique role in the development of what was then
fledgling American legal system. The lectures which constitute the
commentaries were delivered from 1765 to 1769 and, accordingly,
have no direct relationship
to the situation in Australia. Phrases and individual sentences
are often quoted from Blackstone, and as a matter of interest and
quote the whole of the relevant paragraph:
Besides these adjacent islands [Blackstone had just dealt with the islands of Jersey, Guernsey, etc] our more distant plantations in America, and elsewhere, are also in some respects subject to the English laws. Plantations, or colonies in distant countries are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between the two species of colonies with the respect to the laws by which they are bound. For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there enforced. For as the law is the birthright of every subject, so wherever they go they carry their laws with them. But in conquered or ceded countries that have already laws of their own, the King may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country.6
It will be noted that, on the face of it, the passage equates 'desert and uncultivated' with 'uninhabited'.
10.3.5 Captain Cook and Sir Joseph Banks had reported those parts of the coastal strip which they had observed to be 'thinly' populated. The decision to establish the penal colony there was taken on that basis. Instructions to the first governor, part of which I later quote, make it quite clear that it was understood that there was a presently existing population in the area proposed for the penal settlement.
10.3.6 Governor Arthur's experience in Van Dieman's Land (later
Tasmania) convinced him of the value of a treaty, as he explained
in a letter
to the Select Committee on Aborigines which reported to the
On the first occupation of the colony it was a great oversight that a treaty was not, at that time, made with the natives, and such compensation given to the chiefs as would have deemed a fair equivalent for what they surrendered.
10.3.7 Had this happened, he considered 'that feeling of injustice which I am persuaded they have always entertained, would have no existence'. His advice may have contributed to the signing of the Treaty of Waitangi in New Zealand.7
10.3.8 In the early years of Port Jackson, when Aboriginal people still possessed a land base and their resistance was impeding colonial enterprises, the British attempted to negotiate trade-offs. Although Governors Phillip and later Macquarie attracted large meetings of Aboriginal people who were willing to talk, satisfactory resolutions were not reached; the British were primarily trying to impress them militarily and materially to make them see things their way. At annual meetings, Governor Macquarie imposed a hierarchical and patriarchal seating order, and through conferring rituals he attempted to elevate powerful men as 'chiefs' or 'kings'. British officials did not properly enquire into what suited Aboriginal people, nor what they most valued, and became disillusioned when the Aboriginal people refused to meet their expectations.
10.3.9 The first official instructions regarding 'natives'
in the south land were given to Captain James Cook by
told Cook to observe the native's 'disposition' and attempt
friendship by presenting them with gifts;
You are also with the Consent of the Natives to take possession of Convenient Situations in the Country in the Name of the King of Great Britain...8
or, if the land was uninhabited, to take possession of it by right of discovery. The President of the Royal Society, co-sponsor of Cook's journey, warned that
shedding the blood of these people is a crime of the highest nature. They are the natural, and in the strictest sense of the word, the legal possessors of the several Regions they inhabit. No European nation has a right to occupy any part of their country, or settle among them without their voluntary consent. Conquest over such people can give no just title: because they can never be Aggressors. 9
10.3.10 Some historians have argued that according to contemporary thinking, Cook was justified in describing Australia as unoccupied or terra nullius because the British thought Aboriginal people did not work the land, and therefore lacked property rights. 10 Cook and Banks also thought that Aboriginal people only lived on the coast, but in not venturing inland they were hardly the ones to judge. In their journals, both commented favourably on the indigenous people's life style, in the 'noble savage' tradition, but they also commented frequently on their colour and made derogatory comments about their houses and canoes. They wrote that the country was in 'the pure state of Nature, the Industry of Man has had nothing to do with any part of it', and they likened Aboriginal food gathering to the wandering of 'wild Beasts in search of food' .11
10.3.11 Cook refused to negotiate with Aboriginal people at all. He claimed Australia on the basis of 'first discovery and possession' by such symbolic acts as hoisting a flag in several places along the east coast and, finally, at the place he called Possession Island in Torres Strait.12 The validity of his actions remains debatable, as dramatised by Burnum Burnum in 1988 when he hoisted the Aboriginal flag at Dover and 'took possession' of Great Britain.
10.3.12 The next policy was given in Instructions
to the first Governor of New South Wales, Captain
You are to endeavour by every possible means to open an intercourse with the natives, and to conciliate their affections, enjoining all our subjects to live in amity and kindness with them.13
10.3.13 The Colonial Office thus recognised an Aboriginal
presence. It also recognised that convicts could
potentially cause bitter
conflict, making settlement untenable. Phillip's
And if any of our subjects shall wantonly destroy them [Aboriginal people], 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. You will endeavour to procure an account of the numbers inhabiting the neighbourhood of the intended settlement, and to report your opinion to our secretaries of State in what manner our intercourse with the people may be turned to the advantage of the colony.14
10.3.14 This rhetoric appealed to some influential humanitarians such as the Anti-Slavery Society. But it was British authority and law which was to be imposed; no exchanges or mergence of Aboriginal and European laws were envisaged. Phillip followed the instruction to 'use every possible means' to develop relations with Aboriginal people. After initial friendliness on their own territories, Aboriginal people kept a wary distance from the settlement. Phillip consequently resorted to kidnap and prolonged detention. The first captive, Aranaboo, became resigned to his position, and his gentleness and kindness to children was noted, though after a few months in custody he died of smallpox. The next captives were Colebee and Bennelong. Colebee, a powerful man of his group, soon escaped, while Bennelong was held in the governor's custody with chains and handcuffs, with a convict as prison guard.
10.3.15 Instructions regarding 'unnecessary interruption' of Aboriginal occupations were interpreted conditionally, for anything 'advancing' the colony could be classed as necessary. While Aboriginal people were to be made useful for the colony, no consideration was paid to what they had to sacrifice. The attraction of British culture was thought to be universal, while the 'unchivalrous' aspects of Aboriginal gender relations and other customs were exaggerated. While early British rhetoric may have evoked concern for Aboriginal people, the defacto policy was to expropriate their land to establish a viable British settlement. That was the very purpose for being there. Native welfare--women's or men's--was hardly a priority. Additionally, New South Wales was to be a penal settlement: a place of unwilling exile for many, it was a place of punishment.
10.3.16 From first British occupation, the status of Aboriginal people within the colony and empire was ambiguous; were they to be classed as subjects of the Crown? In Phillip's instructions they had been distinguished from 'our subjects'. Although Britain had taken over the land on the basis of 'first discovery and settlement', violent Aboriginal resistance ensued, and settlers assumed a conquest mentality. Phillip's gamekeeper had a reputation as a murderer of Aboriginal people, yet his own murder by Aboriginal people signified a change of direction for the governor. Phillip ordered a party of fifty soldiers to capture twelve natives, put ten to death, and cut off and bring back their heads. 15 The party was unsuccessful. While such group punishment was not in keeping with principles of English law, differential treatment towards Aboriginal people was common.16
10.3.17 In 1797, Governor Hunter declared Aboriginal people a danger and sent out armed parties to 'pacify' them. By 1816 Macquarie had made a martial law-style proclamation. He banned Aboriginal meetings, the carrying of weapons (including those used for hunting), abolished their own system of punishments and reconciliation, and entitled settlers and the military troops to use 'Force of Arms' on armed Aboriginal people or unarmed groups of six or more. Aboriginal people who wanted the protection of the British Government had to guarantee 'peaceful, inoffensive and honest conduct' and obtain a certificate signed by the governor. Unless they carded this certificate they would not be protected from molestation. In exchange, Macquarie promised blocks of fanning land in areas chosen by Aboriginal people, and to provide rations and all the supplies they needed. But the compact was conditional on Aboriginal people relinquishing their 'habits of life', and agreeing to become 'industrious and useful members of a community where they will find protection and Encouragement'. For those who did not want to farm, they could gain land by agreeing to employment by non-Aboriginal people. Another condition introduced by Macquarie was that Aboriginal people had to agree to place their children in a home at Parramatta to be indoctrinated in British culture. 17 The various Aboriginal groups were to meet together and discuss Macquarie's plans for 'a civilising institution', 'as well as for Consulting with them on the best Means of improving their present Condition'. Aboriginal people must have been baffled by the terms upon which they were supposed to regain rights to land they had not agreed to relinquish, and which they probably still viewed as their own.
10.3.18 Violent frontier conflicts continued, and, in 1825, the British Colonial Secretary, Earl Bathurst, advised that aggressions by Aboriginal people should be handled 'in the same manner, as if they proceeded from subjects of any accredited State'. Indeed, Aboriginal people who resisted settlement were frequently killed like 'enemy aliens'.18 After 1836, however, the British Colonial Office instructed that Aboriginal people were subjects of the Queen, within her Allegiance. Only British law was to apply in the colony. Thus, while they were theoretically under the Queen's protection they were not entitled to carry out their own system of laws.19 The British Parliament's Report of the Select Committee on Aborigines recommended a Protector be appointed in each colony who would learn their language, distribute gifts (other than liquor), introduce a simple set of laws, collect statistical information regarding population, act as a magistrate and provide legal representation. The use of native police was not recommended because of the decimation which they allegedly caused in Van Dieman's Land.20
10.3.19 Despite such policies emanating from distant centres of Empire, frontier conflict spread with land settlement. The actual policy on the ground was laissez-faire. Frontier Aboriginal policy, as carried out by settlers and police, was primarily 'pacification' by the use of weapons: a quiet, half-hidden and sporadic war. No colonial government could openly endorse murder; it was illegal. But they could turn a blind eye to what became permissible frontier activities. Native and general police parties were granted the authority to 'quieten' Aboriginal people who resisted non-Aboriginal role.
10.3.20 The ramifications of earlier misinterpretations of Aboriginal population, land fights, use and style of occupation continue today in widely held assumptions and in Australian law. Past Aboriginal negotiations have been largely omitted from our history, with Aboriginal people portrayed as powerless. We still make little effort to understand how Aboriginal people negotiate, let alone attempt to confer with them on their terms. Even where diplomacy occurred, it is dismissed in derogatory fashion. Some pastoralists say Aboriginal people 'gave away' their land in return for flour and sugar, or they 'gave away' their children, although camping on their own land was sometimes conditional on Aboriginal people agreeing to loan their children for labour. Successful adaptations by Aboriginal people to European life styles have been interpreted as confirming the attractions of civilisation, rather than as concerted efforts by Aboriginal people to ensure diplomatic relations.
10.3.21 The Batman-Kulin treaty of 1835 is significant as it was perhaps the only formal treaty negotiated with a group of Australian Aboriginal people. The Kulin were active agents who negotiated and permitted temporary access to their land in exchange for reciprocal rights to European resources. Batman's treaty was declared invalid by Governor Bourke, but this did not demonstrate that Aboriginal people had no rights to land or compensation. The treaty was void because it was carried out by a private citizen rather than the Crown. Nonetheless, as a result of this treaty, relations at Port Phillip were characterised by relative tolerance and goodwill.
10.3.22 George Augustus Robinson was employed to conduct a conciliatory process with Tasmanian Aboriginal people. It seems he negotiated an unwritten treaty in the 1830s which resulted in their move to Flinders Island. Aboriginal people demanded special conditions including the right to pursue their own culture and regular trips back to their traditional land--though these promises were broken. Throughout Australia Aboriginal people attempted to negotiate with various people who first occupied their land, and although mutual compromises were sometimes reached, they had no legal standing.
10.3.23 The Colony of South Australia was established in 1836 at the peak of the humanitarian movement in Britain. By this time it was clearly understood that Banks' opinion that the hinterland of the eastern coastal strip would be uninhabited or virtually so was quite wrong. Furthermore, Stun's voyage down the river, which he named the Murray, into what was to become South Australia had shown that the area was much populated.
10.3.24 The idea of the settlement was privately promoted but the parties secured the passage (August 1834) of an act 'to empower His Majesty to erect South Australia into a British Province..-. '. The preamble defined the area to be colonised and described it as 'waste and unoccupied Lands which are supposed to be fit for the Purposes of Colonisation'. Provision was made for the making of laws and the setting up of a commission to carry the Act into execution. Commissioners were empowered 'to declare all the Lands of the Province... (excepting only Portions which may be reserved for Roads and Footpaths) to be Public Lands open to purchase by British subjects' (the proceeds of sale were to be paid into an emigration fund).
10.3.25 The proposal and the Act were attacked by the humanists and their efforts bore fruit with government. By Letters Patent (19 February 1836), William IV, with the advice of the Privy Council, established the colony and fixed its boundaries, but 'Provided Always that nothing in these our Letters Patent contained shall effect or be construed to affect the rights of any Aboriginal Natives of the said province to the actual occupation or enjoyment in their own Persons or in the persons of their Descendants of any Lands therein actually occupied or enjoyed by such natives '.
10.3.26 By order in Council of 23 February 1836, the Governor and certain named officers were empowered to make laws for the colony (subject to approval in London) but the order cited the terms of the proviso in the Letters Patent just quoted.
10.3.27 It is interesting
to note that there
is not here
nullius'. The first
December 1836 the
to his fellow new arrivals
establishment of Government.
It was a simple statement,
of which reads as
It is also, at this time especially, my duty to aprise the Colonists of my resolution to take every lawful means for extending the same protection to the Native Population as to the rest of His Majesty' s subjects, and of my firm determination to punish with exemplary severity, all acts of violence or injustice which may in any manner be practised or attempted against the natives, who are to be considered as much under the Safeguard of the law as the Colonists themselves and equally entitled to the privileges of British Subjects. I trust, therefore, with confidence to the exercise of moderation and forebearance by all Classes in their intercourse with the Native Inhabitants, and that they will omit no opportunity of assisting me to fulfil His Majesty' s most gracious and benevolent intention towards them, by promoting their advancement in civilisation and ultimately, under the blessing of divine providence, their conversion to the Christian faith.
10.3.28 There was considerable activity in the direction of converting the people to Christian religion but not to the protection of their fights to occupation or enjoyment of lands 'now occupied or enjoyed by them'.
10.3.29 The administration, as determined by the Act and the Letters Patent, contained a fatal division. The Governor had certain executive functions and the Council made the laws; but the Colonisation Commissioners sold the land without any reference to the position of Aboriginal occupiers or to the terms of the Letters Patent. The people of the Adelaide Plains and surrounding areas and those of the Murray River were decimated by dispossession, disease, violence and lack of food due to the stocking of the land to the detriment of native wildlife and interference with fishing. The first mission was established at Poonindie, near Port Lincoln, in 1850. More missions and reserves were set up from then on.
10.3.30 The dispossession proceeded more slowly in the more distant parts of the colony, although the spreading out was quite rapid. The European population was small and the records are full of the recognition of the work that was done by Aboriginal workers, not only on the pastoral runs but farming, transport and in many other ways. The pastoral leases that were granted reserved certain rights to Aboriginal people for living and hunting. The pastoralists drove them away from areas that were the most special to the needs of the pastoral industry and particularly from the better watering places. In South Australia, as in other places, Aboriginal people were able to find a place as workers on the pastoral runs and in this way were frequently able to retain contact with their traditional lands and to engage in ceremonial life but difficulties were constantly put in the way of doing so.
10.3.32 The conflict between Aboriginal people and non-Aboriginal people in Australia is not premised only on 'race' but on a colonial past. Racial ideas went hand in hand with British imperialism, and hence its anthropologists, who turned such ideas into a sustaining 'science' which was later applied in both Africa and Australia, have been branded the 'handmaidens' of colonialism. Theories like social Darwinism, popularised in the 1870s, predicted that the extinction of' inferior races' in the wake of 'colonial progress' was inevitable. The disease and ill-health which Australian Aboriginal people faced in the late nineteenth and early twentieth century only reinforced this notion of their inevitable disappearance. Despite the efforts of missionaries like J. B. Gribble in Western Australia and humanitarians in other colonies, the general public was relatively complacent about Aboriginal suffering, and subsequent government policies took on a short-term palliative nature.
Royal Commission in Aboriginal Deaths in Custody
Australian government Publishing Service Canberra 1991
Frontier Period: Disease and Violence
10.4.1 This Royal Commission was in part prompted by a belief by Aboriginal people, the families of those who died in custody, and many supporters that foul play or murder was responsible for deaths and that the culprits must be caught. The thrust of the Commission has since also turned to the Underlying Issues, in which social, mental and physical health and an Aboriginal sense of injustice feature prominently. The expectation that there would be individuals to blame (such as particular police officers) for Aboriginal deaths in custody is understandable given the perspective of history which Aboriginal people have experienced, as well as reflecting the present state of Aboriginal-police relations.
10.4.2 Past experiences, as passed down through the generations, create what is termed 'popular memory' or historical consciousness. A certain patterning, a logic of events, emerges which explains the predicament of the individual and the group. Past lessons create a basis upon which to assess the present, and contemporary events reinforce them. That Aboriginal people and others often believe that police or gaolers have killed those who died is a serious indictment of Australia's colonial past, as well as proof that the present society has yet to provide reassurance that that past is over.
10.4.3 Aboriginal perceptions of threat by various forces in non-Aboriginal society have been perpetuated by a long heritage of control, with often harsh means of enforcement.
10.4.4 In order to make way for British rule and its law to take effect, flagrant disregard of this same law was popularly accepted. There were also implicit contradictions in imposing such rule in a 'new' land, for British justice had not been designed to cater equally for people of other cultures, let alone those in the relationship of the colonised. Edicts on paper which required humane treatment of Aboriginal people were not carried out by frontiersmen. British statements that Aboriginal people came under the 'protection of the Crown' were inappropriate when they had not chosen to be invaded and taken over as 'subjects'.
10.4.5 The frontier period indicates the type of 'law and order' first imposed on Aboriginal people, which set the tone. In most parts of Australia during its various frontier eras, force or its threat became the key means of establishing British 'law and order'. Australia has many unrecorded battlefields, and the number of Aboriginal people killed by the newcomers during the frontier era probably exceeds 20,000.21 Aboriginal people were thus dispossessed of their land and traditional livelihood, making retreat, starvation and migrations to the fringes of non-Aboriginal settlements or reserves inevitable. Through its legacy of fear, violence thus had a lasting impact on Aboriginal people, as was intended. As elsewhere, it was often the most effective strategy in establishing control over indigenous peoples. Once they had come within its influence they would be more likely to obey not just British laws but any instructions given to them by any British person.
10.4.6 Many individuals literally took the law into their own hands.
As colonisers they felt empowered to 'do their job' by participating
in conquest. The legal authorities seldom intervened, and provided tacit
approval of such actions.
As far as the whites were concerned the general view by the end of the century was that there was a direct relationship between colonial progress--the fulfilment of their mission and the destruction of Aboriginal society. It was in itself a proof of progress.22
10.4.7 Different styles of violence and techniques of subduing Aboriginal people were employed. This applied even in the earliest, more conciliatory contacts. In 1788, the Eora people who met the first British arrivals at Botany Bay were given displays of musket fire in order to instil a sense of fear of British weaponry. While Governor Phillip may have justified this show of military power in the hope of avoiding violence, it was aimed at making Aboriginal people submit to the authority of the newcomers. They wanted to be respected and to dominate, to leave no doubt as to who was in charge.
10.4.8 A series of kidnapping’s was another strategy used to command authority, the most famous being of Bennelong who was, as I have already noted, forcibly kept in British custody with chains, bolts and guards. Hostage taking was practised to acquire intelligence of the original occupants, and to force the establishment of diplomatic ties. After Bennelong was returned his freedom, some promising cooperation and coexistence occurred at Port Jackson and areas north. Conflict intensified as pastoral settlement expanded on the Hawkesbury River in the 1790s, then later on the Bathurst plains and along the Hunter River in the 1820s. It grew worse during the 1830s and early 1840s along the Macintyre, Gwydir and Namir, with the famous Myall Creek massacre of twenty-eight men, women and children in 1838. Aboriginal spokespersons repeatedly appealed to have their best hunting areas protected from intruders, but to no avail.23
10.4.9 Western Australia was occupied by the British in 1829, and was claimed without any negotiation of a treaty. Competition for land and resources led to violent struggles. In 1835 Governor Stirling led a punitive raid in Pinjarra where an estimated eleven Aboriginal people were killed. In 1833 an Aboriginal man from the south-west, Yagan, was shot and killed, and his smoked head removed and placed on public exhibition in Britain.24
10.4.10 In nineteenth century Queensland, frontier violence was often used to ruthlessly dispossess Aboriginal people. Its later date of occupation brought advanced rifle and revolver technology, plus the accumulated experience of past conflict in the southern colonies. Additionally, the strong humanitarian lobby of Sydney and Melbourne was absent. The effectiveness of the Native Police force was another factor. Queensland's vastness and the isolation of many pastoral and mining outposts meant it had a more protracted frontier struggle than in south-eastern Australia. By the 1880s and 1890s, the era of frontier violence in eastern Australia was largely over and colonial 'order' had been imposed.
10.4.11 One way in which authority was established in Queensland was by frontiersmen who consistently carried guns in case they encountered 'hostile' Aboriginal people; they considered they were in 'enemy territory'. The graziers' parliamentary power enabled them to clear and 'settle' the land unimpeded, which meant quelling Aboriginal opposition. Deaths of Europeans met calls for vengeance---'the deadly bullet must do the work of the more legitimate executioner--justice must triumph over law'. Given the 'punitive expeditions' which followed, it was indeed doubtful that Aboriginal people were being 'protected as subjects of British law'.25 In Queensland possibly 10,000 Aboriginal people and at least 1,000 Europeans died as a result of frontier conflict. The chronic anxiety caused by this situation affected both sides. As the Chief Protector of North Queensland, Archibald Meston wrote, Aboriginal people met him 'like hunted wild beasts, having lived for years in a state of absolute terror' .26 Such a fearful people could be forced more easily onto reserves away from their own land.
10.4.12 The Northern Territory was the last area to be continuously occupied by the British. Soon-abandoned settlements such as Fort Dundas (1826), Raffles Bay (1828) and Port Essington (1838) had left their legacy of violence and introduced animals.27 Little British presence existed then until the building of the overland telegraph line in the 1870s. The first encounter with outsiders for many inland Aboriginal people was with the Chinese goldminers, and for decades afterwards the British population remained low. Violence between Aboriginal people and newcomers was an integral part of pastoral expansion throughout Australia, and' fatal conflicts were widespread. They continued up to the 1920s and 1930s in Central, North and Western Australia.
10.4.13 Although some regions of Australia were less violent than others, such incidents were often hidden from the public records and so we lack much-of the evidence. A literate culture knew well the implications of committing deeds to paper which, although publicly condoned, did not conform to the 'letter of the law'. Frontier behavioural codes evaded prosecution by prescribed euphemisms: words like 'dispersing', 'breaking up', 'shaking up', 'giving a fright', 'teaching them a lesson' meant shooting, murdering any number of Aboriginal people.
10.4.14 The violence was certainly not one way; Aboriginal people often used force against the strangers, and posed a serious danger. At least 3,000 Europeans were killed and another 3,000 wounded by Aboriginal people attempting to defend themselves and their land.28 Their opposition to the newcomers has often been portrayed as a pan-Aboriginal desire to rid the country of non-Aboriginal people, but this is to misinterpret Aboriginal culture. Individual Aboriginal people fought for a variety of reasons. They were generally carrying out their own law, and defending their country from intruders. This might have been owned by individuals, clans or bands. The British had come uninvited; they had not followed the required protocol of introductions by elders to the land's spirits and contemporary custodians.
10.4.15 The late Phillip Pepper, a Kurnai man of Victoria, wrote of the
struggles of past generations:
The white come here and took it by force with a lotta blood bein' shed by the Aborigines, they really died for their own country and got nothin' in return.29
10.4.16 Amy Laurie, a Gurinji woman, spoke of how her grandchildren could
not understand why the past generations had not fought back harder when
they were attacked. The elders explained:
You know why we bin let 'em shoot we. Why? We frightened? No, we never gotim rifle. And we didn't care, they reckon, 'We can die in our own country' 30
10.4.17 Introduced diseases such as smallpox in New South Wales and Victoria, and malaria and smallpox in the north, had devastating effects on most Aboriginal groups before they came into physical contact with Europeans. Populations were halved or virtually wiped out; the severe depopulation caused personal suffering and crises in community organisation, and put them in a weakened position by which to meet powerful outsiders.31 The title of Noel Butlin's book labelled disease as Our Original Aggression, and, although there is no strong evidence that it was intentionally used in Australia as a means of subduing Aboriginal people, closing off access to land and food resources and poor medical assistance constituted neglect if not malice. By the late nineteenth century--and in fact until the 1950s. those who expressed concern about Aboriginal health were largely motivated by the perceived threat of contagious diseases to the 'public health', that is, to non-Aboriginal people.
10.4.18 While in many areas, disease proved to be the main factor responsible for Aboriginal deaths, susceptibility was enhanced by the trauma of dispossession, unavailability of traditional food and water supplies, bans on traditional weapons, the unhygienic results of being required to wear European-style clothing, and the lack of immunity to introduced diseases. Alcohol and tobacco also played a role.
10.4.19 Colonies differed. The south-eastern peoples were badly hit by smallpox, whilst northerners probably had greater immunity because of earlier Macassan visitors. The Eora of New South Wales, the Port Phillip peoples and the Tasmanian Aboriginal people suffered speedy decimation. Predominantly convict populations stole their food, weapons, and raped their women. The desperation of the hungry newcomers to establish self-supporting agriculture and pastoralism led to a push for land and disregard for the original inhabitants. Van Dieman's land settlers were involved in sheep gazing, and the ex-convict population was little interested in humanitarian concerns. The death toll from violence and disease on their lands was shocking, but possibly even worse after they were detained on islands.32 Only a small population survived the 1830s, though the island people of Bass Strait who had formed a community with men of the sealing industry were to continue as a distinct and defiant people. Aboriginal people had more chance to pursue their traditional economy where there was less competition for resources and land. The hotter, northern and desert regions and areas without ports or reliable water supplies were less desirable to the newcomers, which gave local Aboriginal people more time to develop survival strategies. There were fewer intruders, and often they relied upon Aboriginal labour. The less successful the enterprises, and the less land-intensive the industries, the greater the chances for Aboriginal survival and relative independence.
Royal Commission in Aboriginal Deaths in Custody
Australian government Publishing Service Canberra 1991
Full report available on the web.
10.5.1 Historically the police have acted as the most consistent point of Aboriginal contact with colonial power. This is pertinent to the present situation, for past history relating to police action is very much alive in the minds of Aboriginal people. Similarly, police share a certain heritage relating to the treatment of Aboriginal people.
10.5.2 The formative experiences of Australia's colonial police were often in conflicts involving control of Aboriginal people. The police were also empowered to control convicts and ex-convicts, including escapees who took up bushranging. Convicts were a group whose punishment was the earliest rationale for Australian settlement and whose discipline and an array of punishments were enforced by a military administration.
10.5.3 Interventions in the lives of Aboriginal people were condoned for different reasons. With the exception of the early convict colonies, it was the police who mediated conflict between Aboriginal people and Europeans in Australia. This was in contrast to North America where the military played this role. Rather than evolving out of the need for community policing, Australian policing soon took on a centralised militaristic and coercive character akin to the Irish constabulary of the early nineteenth century. Also indicative of its paramilitary style is its descriptive terminology: 'troopers', 'corps' and even police 'forces'. In New South Wales the term 'Force' was only replaced by police 'Service' in 1990.
10.5.4 Aboriginal resistance actions were often the catalyst which led to the establishment of Australian rural police forces. The New South Wales border police were set up after the Myall Creek massacre of 1838. Their role was to curb Aboriginal/non-Aboriginal conflict, yet they were involved in 'punitive expeditions' which amounted to massacres of Aboriginal people. The Western Australian mounted police were set up in the 1830s in response to settler demands for 'protection'. These police were not supposed to manage existing relationships, but to play a 'civilising' role; that is they were not only trying to impose authority and perhaps prepare for the rule of law but also to change Aboriginal people culturally. This meant they were to encourage them to become malleable employees and settle in one place, rather than travel freely over country which Europeans now wanted to exploit. This 'civilising' mission was also in line with new trends in western policing where the values of respectable behaviour were to be instilled as a form of control over the 'masses'. 33
10.5.5 Aboriginal styles of resistance, such as attacking isolated shepherds or killing livestock, were usually classed by non-Aboriginal authority as breaches of the law rather than acts of war. This reflected the failure of colonial authorities to recognise Aboriginal people as original owners with anything to defend, and it also reinforced stereotypes of their savage treachery or barbarity. In fact, many attacks by Aboriginal people were of a judicial nature, intended to punish individual transgressions on their territory. From the Aboriginal perspective, the 'hostile blacks' occasionally portrayed in the school texts were in fact the 'policemen' of their communities. Their policing role was dictated not by a specialist classification but by particular land associations. Mudbura people in the Northern Territory-see similarities between non-Aboriginal policing and their own; they refer to different types of traditional Aboriginal land owners or custodians as 'managers', 'owners' and 'policemen'.34 Although non-Aboriginal police were supposed to represent impersonal authority, Aboriginal people saw the 'policemen' as individuals, and judged them as' good' or 'bad' police officers according to how well they fulfilled the kin-based principles of their own systems of law.
10.5.6 Aboriginal people who attempted to defend their land or communities, however, were classed by non-Aboriginal society as criminals, and if they were not dealt with arbitrarily by settlers, the local non-Aboriginal or native police were called in. Police, therefore, became the de facto arbiters of two sets of laws in conflict. 'Ordinary' Aboriginal behaviour was also classed by police as 'criminal'. 'Right' lay on the side of the most powerful group, who continually judged Aboriginality as deviant in body, mind and action.
10.5.7 Although officially they were required to curb vigilante actions against Aboriginal people, policing on the frontier favoured the protection of the non-Aboriginal population. The police had thus become the State instrument by which frontier pacification was to be established. Once Aboriginal people were 'subdued', police began to serve a role of 'protecting' Aboriginal people. This coincided with the turn of the century belief that Aboriginal people were a doomed race heading for extinction, so protective policies were considered to be only temporary measures to 'smooth the dying pillow'.35 Administrators in Western Australia and Queensland saw the inherent conflicts in appointing police to carry out policies of Aboriginal 'protection', and hoped their appointment was a short-term measure, but its economy meant that this police role became institutionalised. Police who were acting as protectors were still answerable to police department superiors, who had to listen first to continuing European demands for control of Aboriginal people. Individual police were also part of the non-Aboriginal community, and risked ostracism if they sided too closely with Aboriginal people. Police and 'settlers' held common interests, especially in remote areas where they were only a small minority amidst a larger Aboriginal population. To many settlers, a 'good officer' was a practical and experienced man who knew when to shut his eyes.36
10.5.8 Policing and Aboriginal affairs were both centralised in each colonial (and after 1901, State and Commonwealth) government. The police had to implement the various 'protective' legislation which governed the lives of many Aboriginal people. Tensions must have often occurred not only between economic and industrial demands and humanitarian interests but also between local community objectives and the latest State policies regarding Aboriginal people. The police were required to work in closely with the more politically powerful groups like employers. On the Queensland frontier in the 1900s, police assisted the pastoralists in various ways. They were called in to relocate Aboriginal communities when their labour was not needed, or to force them off waterholes and other land which was required for stock. Police therefore participated in restricting their hunting grounds, which led to hunger and ill-health, and made imperative Aboriginal dependence on non-Aboriginal employers and township resources for survival.
10.5.9 Police frequently ordered Aboriginal people around at the request of non-Aboriginal residents. In the Northern Territory and South Australia, they moved people's camps because their noise might disturb bullocks or their presence might deter animals drinking there. Their actions contravened covenants in pastoral leases or legislation which allowed Aboriginal people access to pastoral lands to hunt and camp, but this was overlooked. This was the case in Queensland, South Australia and the Northern Territory.37 Towns or other places used by non-Aboriginal people often became prohibited areas to Aboriginal people. They were subject to many restrictions, and in most States were prohibited from drinking and possessing firearms practices which were widely and publicly observed by the rest of the rural community.
10.5.10 In the Northern Territory in the 1910s, 1920s and 1930s, police visited cattle stations about once every three months. As 'protectors' of Aboriginal people, their duties included checking to see if station conditions were satisfactory, taking a census, rounding up the ill, treating minor ailments and detaining and arranging transport for the diseased to be taken away and quarantined. They also had to remove children of mixed descent from their families. It is not surprising that many Aboriginal people avoided and attempted to withhold information from them. Many residents of cattle stations left when they heard that the police were about to make their quarterly visits. They wanted to protect a diseased relation who would be taken away forever, and not allowed to die in his/her country, or hide a little light-skinned daughter, son or grandchild whom they would probably never see again. In addition to their role as 'protector' the police also 'hunted' Aboriginal people for other reasons. They arranged Aboriginal people as labour for the police station, for tracking, and for other Europeans. They sought out and detained cattle spearers, those involved in tribal murders, and those in possession of opium or alcohol. In towns, they detained those who went into areas prohibited to Aboriginal people, those 'loitering' in a township, found drunk, using obscene language, or carrying a nulla nulla.
10.5.11 In New South Wales towns during the same period, police were required by the Aboriginal Protection Board to issue rations to 'deserving' Aboriginal people. The Board was able to withhold rations in order to force relocations, or to force children to attend school. The Board could decide whether an Aboriginal person required medical treatment. It had the right to patrol and maintain order on unsupervised reserves, to expel 'trouble makers' from such places, to recommend on disposal of reserve land, to remove children from parents to 'Training Homes', to charge parents who attempted to prevent their children's removal, and stop the children returning to Aboriginal camps. The powers conferred by the Board were wide indeed, and this did not include their usual duties of administering justice in the towns, often at the request of local municipal councils or powerful individuals. 38
10.5.12 Police also interacted with mission and government reserve authorities, and were requested to take away 'recalcitrants' to more distant reserves and sometimes gaols. Police were the intermediaries of non-Aboriginal authority reflecting wider social and structural relations of power. As the main points of contact with non-Aboriginal society, they were logically the most accessible points from which Aboriginal people might gain knowledge of non-Aboriginal 'law', yet Aboriginal people often decided it was best to avoid them at all costs.
10.5.13 Police surveillance of Aboriginal communities in turn shaped their perceptions, and they came to think their duties towards Aboriginal people a 'nuisance'. They most often came into contact with those who no longer had the dignity of supporting themselves, or who regularly got into trouble with the law. Contemporary thinking defined Aboriginal people living alongside Europeans as degenerate remnants. Non-Aboriginal police were supported by this thinking and found it easy to stereotype Aboriginal people accordingly. The character of racial thinking changed over time, but structural factors locating Aboriginal people at the bottom of the social hierarchy remained.
10.5.14 In the 1920s and in the post- 1940s era, the continuing police role in rationing the 'indigent', handing out other forms of welfare, managing trust funds (containing a large proportion of all money earned by Aboriginal people according to State policies), and general surveillance of Aboriginal activities often necessitated regular association with police and forced many Aboriginal people into dependence upon them. The paternalistic nature of the policing role requires further analysis. Many sincerely wanted to help Aboriginal people, though their role could be restricted or overruled by more powerful interest groups such as employers and government, as well as their own department, who did not consider Aboriginal-related work a high priority. Loyalty to their employers or fear of the consequences often stopped Aboriginal people complaining to police.
10.5.15 To sum up, relations between Aboriginal people and police were complex, and changed according to differing government policies, but in most States throughout both centuries, police played an important role not only in arresting and charging Aboriginal people for 'criminal' offences but for carrying out 'protective' roles. These roles intervened in Aboriginal control and management of their own lives and impinged on realms usually defined by Australian society as 'private': residence, diet, self-sufficiency, illness, work, education and child rearing. From the late 1940s on, welfare officers took over much of the surveillance, but police still had to enforce removal, detention and other orders.
10.5.16 The gender implications of Australian policing also require consideration. Police were virtually always non-Aboriginal males, and the interaction which followed was generally one between a non-Aboriginal male and an Aboriginal male, and sometimes a female. Aboriginal women would consequently view 'police work' as 'men's business'. In rural areas, police were often single and their position empowered some of them to select females from the Aboriginal communities for whom they worked. Aboriginal women also saw the possibilities which might flow from having an intimate relationship with a man in such a powerful position over their family's lives. Many police officers had sexual relationships with Aboriginal women, and some even had 'harems'. In the Northern Territory, at least, various welfare officers also had promiscuous reputations. The fact that some of these men biologically fathered the children they later seized for State institutions adds a cruel twist to the story. In terms of Aboriginal gender relations, the nature of policing potentially reinforced male authority, while the desire of some to exploit the women would have caused concern mainly if the women stayed too long with the non-Aboriginal police officer or if he did not fulfil his reciprocal obligations by distributing goods to her family.
10.5.17 The short-term stays of many non-Aboriginal police officers (especially in remote areas) disrupted Aboriginal attempts to incorporate them within their own network of reciprocal obligations. In Western Australia and the Northern Territory, many Aboriginal people never claimed their trust moneys because a different police officer had taken charge of their area, and they thought it improper to ask for anything from the stranger.
The role of Native Police
10.5.18 Aboriginal police and police trackers played important roles during the nineteenth and twentieth centuries. Some Aboriginal and non-Aboriginal people assume that they must have been traitors. It was true that a divide and rule strategy was often effectively used by imperial powers, and clan rivalries were exploited by colonial police. However, frontier struggles were not polarised solely according to one's place as coloniser or colonised. Aboriginal Australia was not one 'nation'; it was many. And like all societies, it was not static. Aboriginal contributions to policing can be seen as adaptation and cooperation to changed historical circumstances
10.5.19 The first experiments with 'native police' forces commenced in Victoria in 1837, with subsequent forces set up in 1839 and 1842. Paramilitary in character, the prestigious Port Phillip Native Police Corps were proudly uniformed and mounted on good horses. As well as providing a deterrent to Aboriginal attacks on pastoral properties, they played a wider policing role, capturing non-Aboriginal offenders, and later policing the diggings and escorting gold into Melbourne. Their story was one of cooperation with Europeans; leading Aboriginal men applied for recruitment and then actively pursued their position to their own advantage. They refused to capture kinsmen by claiming inability to track them, while eagerly pursuing someone from an 'enemy' group. It seems they were also involved in some murders of other Aboriginal people.
10.5.20 New South Wales and Queensland native police had a well-deserved reputation for violence. The Queensland force was called in specifically to dispense 'justice' towards Aboriginal people. They were ordered to 'disperse' any large numbers of Aboriginal people and, in the words of a contemporary senior police office, the term meant 'nothing but firing at them'.39 This made Aboriginal meetings and ceremonies impossible. In the Northern Territory, Aboriginal people were often employed as police trackers, though frequently on a casual basis. They were sometimes engaged by police after spending a time in gaol. They were offered shorter sentences for agreeing to work. Sometimes they took the opportunity of being armed (firearms were otherwise prohibited for Aboriginal people) to carry out attacks against enemies. In some cases where they took the blame for shootings, it seems they served as scapegoats for over-zealous non-Aboriginal police.
10.5.21 Members of the native police forces were all male. Many Aboriginal men and some women worked as police trackers. Their bush expertise was used to assist in police hunts on a casual basis, while others worked for longer stints, with duties such as doing the rounds, grooming horses, and offering general assistance. Often they were only paid a few shillings a week, with rations supplied to their families. Aboriginal trackers were immortalised in Aboriginal oral histories and in fictional works such a Ion Idriess' Mantracks and in the detective series of Arthur Upfield's Boney. Henry Reynolds' With the White People depicts their important role in Australian history.40
10.5.22 Aboriginal communities gradually came to use the police, Aboriginal or non-Aboriginal, as an outside authority structure which could be employed for internal policing purposes. Trouble-makers could be sent away, sympathetic kin could protect someone due for a tribal punishment or likely to do something 'dangerous' to others. Sometimes gaol was used to discipline or calm someone down. Aboriginal law enforcement structures were not as strong as they once were owing to forced migration, illness, alcohol, unemployment, and the intrusive power of Western culture. Western control mechanisms could thus be easily used by Aboriginal people to meet their own agendas--though this strategy proved problematic, for they often encountered people who did not understand their language, actions or intentions.
Royal Commission in Aboriginal Deaths in Custody
Australian government Publishing Service Canberra 1991
Full report available on the web.
Aboriginal People and the Law
10.6.1 Aboriginal people have experienced an anomalous position in relation to British and Australian law. Prior to and after contact, Aboriginal communities had their own system of law, with its logic and rationale tied in with the holistic philosophy of the Dreaming. Rather than abstract principles of 'justice ', their laws were evoked more directly and on a more personal basis to maintain or regain community harmony.41 Theoretically, Australian courts have held that their laws applied to Aboriginal people and non-Aboriginals alike 'except to the extent that the legislature had seen fit to make differences or to allow exceptions'.42 Some attempts have been made to accommodate tribal law, such as the native courts established in Western Australia which operated between 1936 and 1954. 'Tribal custom' could be taken into account in mitigation of a sentence, though not as a complete defence.
10.6.2 Usually Aboriginal people have been subject to general Australian laws, and additionally to a range of special laws which prohibited and restricted their movements and associations. While theoretically Aboriginal people were to be treated as British subjects, they 'suffered severe disabilities in the courts'.43 They were not given equality of legal status, yet were perceived as law-breakers. Because they were not Christians, they often could not testify in court (amended in Western Australia in 1841, New South Wales in 1876). In many colonies, legislation entitled police and justices of the peace to exercise extraordinary powers over Aboriginal people. Pastoralists, miners and other employers of Aboriginal labour were often appointed as justices of the peace and magistrates. They tried cases relating to their own or their neighbours' employees, and sent out their station 's employees to assist in police efforts to quell Aboriginal actions. In Western Australia, for example, Aboriginal protectors, who were often police, had special duties to 'minimise the annoyance caused by the aborigines' by nudity, begging, etc. In 1849, Aboriginal people could be tried summarily for criminal offences (excluding murder, arson, rape) by two or more justices of the peace and sentenced with up to six months imprisonment plus corporal punishment for male offenders.
10.6.3 Many legal impediments existed to Aboriginal people giving evidence and exercising their rights as individuals. In some colonies they could not press charges, were held corporately guilty for the crimes of others, and were not permitted to give evidence because they were pagans. But even the lifting of restrictions on giving evidence meant little. The justice system was especially alienating for people who were not familiar with this facet of Western culture. Aboriginal people often understood little English, and thought they were to provide required answers rather than an objective 'truth'. Juries were mainly non-Aboriginal, and rarely sympathised with the Aboriginal defendant or believed Aboriginal witnesses. There was a certain protocol to be observed. Even if a non-Aboriginal man had provoked the attack, the lesson had to be taught that Aboriginal retaliation was not acceptable. In the 1920s and 1930s, numerous cases which Charles Rowley described as 'spectacular injustice' occurred through the courts. These highlighted the conflicts between traditional Aboriginal and British style law. But even more, they drew attention to the fact that Aboriginal people were not receiving justice under the Australian system. In a survey of the North Queensland circuit court between 1882 and 1894, a quarter of Europeans charged with violent offences against Aboriginal people were found guilty, and none were sentenced to be executed, despite the high proportion of murder cases. 44
10.6.4 Race was a crucial factor in administering justice, as shown
by studies of the 1888 rape case of a Victorian Aboriginal woman and
of rape cases concerning Aboriginal men.45 In Northern Territory murder
trials from 1884 to 1911 all nine Aboriginal people charged with the
murder of non-Aboriginal people were found guilty, and three were
executed. In the cases where non-Aboriginal people were charged,
they were very
rarely found guilty, and the murderer was released after a short term.
In 1913 Judge Bevan wrote to the Administrator:
Juries will not convict a white man for an offence against a black, certainly if the evidence is that of blacks, whereas on black evidence there is no difficulty in the way of securing a conviction against a black. The jury system may have worked well where the population is all one colour, but the introduction of racial antipathies goes far to undermine the principles of trial by Jury.46
10.6.5 Some of the scandals which occurred in the 1920s and 1930s in the far north related to police involvement in actions against Aboriginal people (for example, the Coniston and Forrest River massacres). Others involved cases of suspicious deaths in police custody and a police officer was charged with assault in the Borrooloola district. He was acquitted of a charge of assault on an Aboriginal male prisoner, and of assault on an Aboriginal woman, 'Dolly', who died in his custody. The Supreme Court judge found him innocent, stating that all the Aboriginal witnesses were 'liars'. Witnesses were certainly treated contemptuously and it was common for Aboriginal witnesses to be chained and imprisoned until the hearing.
10.6.6 In the case of R v. Tuckiar (1934) in the Northern Territory an Aboriginal man was charged with the murder of Constable McColl, and was found guilty, despite corroborated evidence of provocation. McColl was alleged to have engaged in sexual intercourse with Tuckiar's wife but of having refused to compensate the husband. The High Court overruled the decision, unanimously ruling that Tuckiar should be released into the custody of the chief protector. Tuckiar disappeared the next day without trace.
10.6.7 As can be seen from this brief review, Aboriginal experience of the court system was one of discrimination and repression. The courts were seen to be acting on behalf of other interests and to be imposing a foreign culture. That historical experience remains very much the perception of the courts today held by many Aboriginal people.
Royal Commission in Aboriginal Deaths in Custody
Australian government Publishing Service Canberra 1991
Full report available on the web.