Reference: Australian Law as Applied to Aborigines – Australian Law Reform Commission (Australian Government)

With the settlement of Australia came the insurmountable problem of integrating two very different ‘legal’ systems (English Common Law and Native Custom), among a mixed group who had very different expectations and outlooks about right, wrong and barbarity.

Can you imagine the impossibility of the situation? The settlers expect protection (from both other whites and aboriginals) in accordance with their laws, yet Aboriginal culture operated under a system that was almost the antithesis, including theft and revenge killings. Any interaction, bar the most mundane, was bound to precipitate a ‘clash of cultures’.

If the modern narrative is to be believed, one might expect the British to come in with an iron fist, and force their laws unwaveringly and viciously onto the native population.

However:

The decision to classify the ‘new’ country of Australia as a settled colony, rather than as conquered or ceded, meant that the new settlers brought with them the general body of English law, including the criminal law. The application of that law to Aborigines was in practice less certain, especially for offences (especially killings) committed by one Aborigine against another. For some time the practice was to apply English law at least to offences committed by colonists against Aborigines and by Aborigines against colonists,^[13] so as to provide a measure of protection for each group against the other. However the amenability of Aborigines to English law presented many problems, whether the victims were colonists^[14] or other Aborigines. In 1829 the New South Wales Supreme Court advised the Attorney-General that it would be unjust to apply English law to the killing of an Aborigine by members of another tribe.^[15] Similar doubts were entertained in South Australia^[16] and in Melbourne.^[17]

Furthermore, despite the Jack Congo Murrell Case confirming that the Court of Justice had jurisdiction over all crimes:

Despite the reality of the coexistence of two laws for Aborigines, the case came to be regarded as having settled the question for Australian law.^[24] But in practice, both before and after 1836, the law was applied differentially and, especially in remoter areas, haphazardly, so that few killings (whether an Aborigine was offender or victim) were prosecuted.^[25]

An 1835 Select Committee of the House of Commons examining the conditions of Aboriginals in British settlements stated:

when British law is violated by the Aborigines within the British dominions, it seems right the utmost indulgence compatible with a due regard for the lives and properties of others, should be shown for their ignorance and prejudices. Actions which they have been taught to regard as praiseworthy we consider as meriting the punishment of death. It is of course impossible to adopt or sanction the barbarous notions which have urged the criminal to the commission of the offence, but neither is it just to exclude them from our view in awarding the punishment of his crimes.^[36]

A full reading of the reference makes it abundantly clear that not only did the British not come in as overlord and unflinchingly apply the letter of their law, they appear to have exercised an enormous amount of flexibility and discretion in deference to the Aboriginal culture.

But the reality in many cases was that Aborigines neither understood nor felt allegiance to that law. In such cases, judicial punishments was usually mitigated through the Governor’s exercise of the prerogative of mercy, under which he could remit or mitigate punishment for all offences other than treason and wilful murder (where he was limited to postponing execution until the Monarch’s pleasure was known). Another safeguard for Aborigines lay in the fact that in the Colony, the Attorney-General exercised the functions of a Grand Jury. Without his initiative, an Aborigine would not be sent for trial. Thus both the initiation and final review of criminal prosecutions against Aborigines lay with the Government

In fact:

On the whole executive review took much of the sting out of major sentences in that a significant proportion of capital sentences imposed on natives were commuted to transportation which in effect often becomes a term for Cockatoo or Goat Islands (in Sydney Harbour) for instruction in secular and religious matter preparatory to an early release. A review of the cases tried (for the period 1788-1855) leads one to believe that with the sole exception of Charley, no Aboriginal was executed who would not have qualified for death also under native laws … Governor Gipps stated explicitly that this was the test applied by the Executive Council in his time.^[33]

Note the line: “A review of the cases tried (for the period 1788-1855) leads one to believe that with the sole exception of Charley, no Aboriginal was executed who would not have qualified for death also under native laws.”

As an aside, you’ll note in the reference that the author refers to the “attitude of Gipps’ Executive Council” as “enlightened for its time” and then counters it with a glib comment that “in practice, law enforcement and the activities of private citizens were not at all consistent with it“.

It only seems enlightened to him/her because they are starting from a modern position of bias, which sees our forefathers lacking both compassion and commonsense. The standard whataboutism regarding private citizens is a pathetic, unreferenced and (frankly) cliche attempt to hold onto bias in the face of significant counterevidence.

As promised, I’ve tried to provide a contention and a relatively short reference. I implore you to click on the link and read it. If you think it demonstrated anything other than accommodation, understanding and deference (under what was a no-win situation), I’d be interested in your feedback in the comments (do try to keep them relevant, Ed).

The bottomline is, the British didn’t come in with an iron fist savagely applying their worldview on the Aboriginal population. Kid gloved them might be a more appropriate term. It seems obvious that if they had wholly malicious intent toward the native population, they would have taken every opportunity to ruthlessly apply the full force of British law. They didn’t. Why?

Everywhere you look in this article, compassion and empathy abound. Modern activists might take note. Many of the other Imperial powers of the time might not having been so kindly, and it’s wholly unrealistic to think that Aboriginal culture was going to evade modern culture indefinately.

It should also be noted that seven white settlers were hanged in 1938 for the murder of Aboriginals.