Were they that bad? #2 – Australian Law as Applied to Aborigines

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.

34 thoughts on “Were they that bad? #2 – Australian Law as Applied to Aborigines”

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

    It’s worthy of note that the Myall Creek Massacre was reported to the authorities by the “white” station overseer, and that report was thoroughly investigated. Those men were hanged after a first trial found them “Not Guilty.” The Attorney General of the colony ordered a retrial, which found them “Guilty.”


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  2. There have been scores of massacres of dozens and some over 100 natives recorded throughout Aust during early post settlement era.

    Reasearch link.

    So even accepting the above post, it does not reflect all history known for that time.


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  3. There have been scores of massacres of dozens and some over 100 natives recorded throughout Aust during early post settlement era.

    No doubt criminal activity occurred, on both sides. That doesn’t constitute a systemic attempt at genocide, etc.

    That said, in regards to ‘documented’ massacres, I’d be careful.

    THE FABRICATION OF ABORIGINAL HISTORY

    10 pages that will blow you away about academic misconduct.

    “In the February edition of Australian Book Review, Alan Atkinson of the University of New England described an article of mine in The Australian (9 December 2002) as “heart-sinking”. That article was largely a list of examples of the abuse of scholarship that I have just given, showing invented incidents, concocted footnotes, altered documents and gross exaggeration of the Aboriginal death toll. What made Atkinson’s heart sink, however, was not this catalogue of misconduct. Instead he was dismayed that my critique was based on such an outdated concern as getting the facts right. “Windschuttle aims to take the discipline of History back to some golden age,” he lamented, “when it was all about facts.””



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  4. There have been scores of massacres of dozens and some over 100 natives recorded throughout Aust during early post settlement era.

    As I posted on Maters other thread, nobody can deny that there weren’t some “dark and bloody deeds done on the frontier, but over 100 “Natives?” Did the early settlers and police have access to automatic weapons and artillery?


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  5. The British were about the lightest touch of any of the colonial powers. Aborigines were exceedingly lucky to have them set up here.
    See the Belgian Congo for an example.


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  6. The Poms were great big softies, and the indig flocked to developed British culture the instant they became aware of it. Blankets, permanent shelter and portable food were vast improvements on sharp rocks for tools and sleeping on bark (for the elites, ie men).

    But the British were selective with their cultural applications, and fortuitously so.

    If they’d force-fed the indig kippers, they would have died out by 1800.


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  7. This entire brand of stinking horseshit, highlighted by but by no means limited to NAIDOC Week occurs because the society we live in is affluent enough to tolerate it.

    If there was a last-ditch necessity to perpetuate that society, ie keeping its people alive, all this would be thrown in the bin because all assembled are very much aware it’s pure theatre.

    See also: Climate change and gay pride festivals.


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  8. … among a mixed group who had very different expectations and outlooks about right, wrong and barbarity.

    Your terminology is confused.
    Aborigines were considered Savages by the British Authorities of the day, not Barbarians.
    In future, try doing basic research before inflicting your gobbledegook on readers.


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  9. The British were about the lightest touch of any of the colonial powers. Aborigines were exceedingly lucky to have them set up here.
    See the Belgian Congo for an example.

    Again, do some research.
    The Belgians enslaved the Congolese to work the rubber plantations.
    The British concluded that the Australian Aborigine wasn’t slave material, so they exterminated them where they found them.
    In the Orders:
    Disperse the Aborigines when encountered …



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  10. The British concluded that the Australian Aborigine wasn’t slave material, so they exterminated them where they found them.

    Which is why the latest census found 798,400 Aborigines/Torres Strait Islanders in Australia today?


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  11. Your terminology is confused.
    Aborigines were considered Savages by the British Authorities of the day, not Barbarians.
    In future, try doing basic research before inflicting your gobbledegook on readers.

    Perhaps try reading the post (and/or reference) before you mouth off with irrelevant shit.

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

    “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”


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  12. In the Orders:
    Disperse the Aborigines when encountered …

    “Disperse” is hardly “Massacre”, but nevertheless, I provide references, perhaps you’d return the favour.
    It helps maintain an intellectually honest discussion.


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  13. Dickless

    The British concluded that the Australian Aborigine wasn’t slave material, so they exterminated them where they found them.
    In the Orders:
    Disperse the Aborigines when encountered …

    Perhaps you should use your Google-fu to check the difference between “disperse” and “exterminate”? Idiot.

    Note also that there had been very limited contact before the First Fleet arrived to enable the British to determine that “the Australian Aborigine wasn’t slave material”.


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  14. “Disperse” is hardly “Massacre”, but nevertheless …

    You’re Pettifogging again, a sure sign that you accept that you’ve lost the argument.


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  15. 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.

    I’m sure this will be covered when the truth telling comission gets underway.

    [sarc]


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  16. … , yet Aboriginal culture operated under a system that was almost the antithesis, including theft and revenge killings.

    Uh huh … so donning the black cap and pronouncing a Death Sentence isn’t a revenge killing, and taking a Sheep on your own property doesn’t fall under: Possession is nine tenths of the Law?


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  17. Ed Casesays:
    July 17, 2022 at 9:35 am
    “Disperse” is hardly “Massacre”, but nevertheless …

    You’re Pettifogging again, a sure sign that you accept that you’ve lost the argument.

    No, a sure sign that, once again, you have made up a stupid statement, with no actual proof of your (improbable) assertion.


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  18. I’m going to adopt Ed’s definition of pettiness (only when I find it convenient, of course).

    Something along the lines of…

    Collingwood supporters dispersed after the game…where are we going to find the space to bury 40,000 football supporters?


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  19. Your terminology is confused.

    Not as much as yours, you brain dead nuisance.

    In no dictionary anywhere will you find that ‘disperse’ and ‘exterminate’ have interchangeable meanings.

    If you persist in your quest to become the biggest idiot in the trolloverse then I suggest you have a sh*t load of work ahead of you.


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  20. If you persist in your quest to become the biggest idiot in the trolloverse then I suggest you have a sh*t load of work ahead of you.

    I’ll take your word for that.
    Your own performance today alone has been in the Phar Lap class.


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  21. I was talking of this stuff with a friend (ex) as we strolled around Northbridge one night.
    Observed that today, aboriginal Australians are given soft justice, from the ground up. From APLOs, to direct instructions to police to engage less, warn more, move on order more, turn a blind eye more, arrest less, bail more, detain less, redirect to alternative justice engagements more, a higher bar to criminal culpability, a lower bar to extenuating circumstances considered, invoke intergenerational trauma more, a lower bar to considering mental health diagnoses, convict less, sentence more leniently, suspend more easily, commute more readily, direct to work camps and babysitting activities “on Country” more.
    All this leniency and infantilization has obviously sent Aboriginal Australia backwards. The phenomeneon of massive incarceration rates- which, in view of the kid gloves handling, is telling of shameful -and distressingly, often violent- criminality amongst urban Aboriginals- shows it don’t work.
    I thought that it was a pomo thing which Whitlam had kicked off in the 60’s, but there is also alongstanding tradition. Mater, thanks for your thoughts and efforts.
    After 250 years, I wish that English Common Law was not so afraid to win, or so ashamed to hold itself up as an admirable and successful way of life. And, I’d wish that the gavel coming down would once again say unambiguously, “guilty. From here on, it’s detain and punish, with the rest of the common criminals.”


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  22. Wally:
    All those changes also apply to non aboriginal Australians.
    Has there been any dividend there?
    I don’t think so.
    Aboriginal Social Programs are designed to fail.
    Where there have been successes, it’s where the unsuitable Australians have been fucked off from running the programs and exploiting aborigines.
    That hasn’t happened very often.


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  23. No, the British knew that Australia was inhabited, at least since Dampier, and likely much earlier.

    The American Indians also made poor slaves.
    British/American solution?
    Exterminate them.
    They largely did.
    There are very few 100% Indians left, but since accurate DNA Testing isn’t allowed, there may not be any!


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  24. Ed Casesays:
    July 17, 2022 at 5:25 pm
    No, the British knew that Australia was inhabited, at least since Dampier, and likely much earlier.

    The legal concept of Terra Nullius was constructed much later, and does not mean “uninhabited”.


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  25. The legal concept of Terra Nullius was constructed much later, and does not mean “uninhabited”.

    A fact known to all except the very stupid and the very ignorant.


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  26. American Indians made pretty good slaves, and were slavers themselves. Before 1492.

    Slavery was the natural condition of prisoners or war, or inter tribal conflict. It was thought of as a humane alternative to killing. That arrangement was common to all pre modern people who had notions of compassion or valued labour.

    American Indians also had chattel and bondage traditions. Women were traded and voluntary and forced bondage was a way of settling debt between individuals and families.

    American Indians also owned and traded in African slaves, post 1492. For example Jesse Jackson’s ancestors were slaves of the Cherokee.

    There are lots of sources for the above assertions, very easy to find.


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