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Law and Rights

English law in Australia

In January 1788, 735 convicts and 200 soldiers settled on the territory of the Eora people on the southern shore of Sydney Harbour. You might think that normal English law would be suspended for such an operation. The convicts would be controlled by penal or military discipline and the Aboriginal people would be shot if they interfered. In fact the British government declared that English law would govern not only this odd settlement, but all of New South Wales, which meant that Aboriginal people became subjects of the king.

From what it already knew about the Aborigines, the British government decided that they were not the owners of the land. They simply wandered over it, did not plough the soil and had no settled homes. Australia could be treated as terra nullius, a Latin term which means land belonging to no one.
Terra nullius

Where a native population did cultivate the land and had settled homes the British government did treat them as owners. Before deciding on Australia for its convict settlement, it was looking at a site in west Africa which it planned to buy from the native owners.

Since the British government decided Australia was not owned, it claimed full rights over it and saw no need to negotiate with the Aboriginal people. The first governor, Arthur Phillip, was instructed to treat the natives kindly and punish those who disturbed them or their possessions. Very soon convicts were being injured or killed by Aboriginal people and Phillip was under pressure to get tough with them. He refused, saying the convicts were the aggressors. They were taking spears to sell as souvenirs and were probably interfering with the women. Then one of Phillip’s own servants was killed. He ordered a group of soldiers to march through the bush to catch or shoot six Aboriginal people. So they were not subjects. Aboriginal people did not have the protection of the law. This time the soldiers found no Aboriginal people. On other occasions soldiers and police on horseback did find and kill them.

The instructions to governors stayed the same. The governors told the settlers that killing Aborigines was murder. But whenever Aboriginal people held up the advance of white settlement into their territory by killing settlers, the governors sent police or soldiers to deal with them or turned a blind eye to what the settlers did. Thousands of Aboriginal people were slaughtered. On a few occasions white men were brought to court for the killings. They nearly all got off. Aboriginal people could not use the courts to protect themselves – these subjects of the king were not allowed to give evidence because, not being Christians, they would not take seriously the oath to tell the truth.
Murdered Aboriginal people not protected

The settlers said there was a war between them and the Aborigines. They were more honest than the British government. If the Aboriginal people had been treated as enemies rather than subjects there is a chance they may have done better. With enemies there may be negotiation and captured enemies are prisoners of war. But it is hard to imagine a different outcome on the frontier. The settlers were hungry for land, especially when they moved into sheep and cattle farming. For the Aboriginal people land was not something that could be sold or negotiated away.

The British government became aware that its Australian settlement was destroying the Aboriginal people. In the 1830s and 1840s the men and women who had campaigned against slavery in the Empire urged the government to protect the Aborigines.

For illustration, refer to page 74 in the printed publication. (Discovering Democracy: A Guide to Government and Law in Australia)

Governor Arthur in Tasmania attempted to show with these posters that English law operated equally for Europeans and Aborigines: in practice, it did not.

Arthur’s Proclamation to the Aborigines, 1828
Collection: Tasmanian Museum and Art Gallery

The government did not change the terra nullius doctrine or stop the advance of settlement (which would have been very difficult), but it did organise small reserves and protectors in the new settlement of Port Phillip and the leases it issued to squatters made it clear that Aboriginal people still had the right to hunt over their lands. It also reminded the governors that the death of an Aboriginal person was to be treated in the same way as the death of a white person.
Right to hunt

Governor Gipps took this message to heart. In 1838 he put 11 men on trial for murdering 28 Aboriginal people at Myall Creek. When the jury found them not guilty, he put seven of them on trial again. When the second jury found them guilty, he ignored the huge public campaign to spare their lives. All seven were hanged.
Myall Creek murders

Most white men on the frontier did not think the killing of Aborigines was a crime. This case had only got to court because of unusual circumstances. The Aboriginal people who were killed had been camped at Myall Creek cattle station. They were not living in the bush and spearing cattle. They were working part-time on this and other stations. The murderers, who had been roving the district looking for Aborigines to kill, found easy prey at Myall Creek. The Aboriginal people were rounded up and led off to be slaughtered. When the station overseer returned, he wanted to know what had happened to them. He found the pile of bodies and alerted the authorities.

The overseer was appalled at the wanton killing of harmless people, but even in these circumstances many whites did not want the murderers to be punished. Governor Gipps’s determination to hang them made little difference to what happened on the frontier.

The English law, which did very little to protect the Aborigines, was altered to benefit the convicts. In England a convict could not own property, take a case to court, or give evidence in court. In New South Wales all these rules were ignored. The first case in the civil court was brought by two convicts against the captain of their ship for losing their luggage.
Convicts and the law

The courts could make these changes because English law had to be followed only as far as circumstances allowed. Since two-thirds of the population were convicts, the courts could scarcely have operated if convicts could not give evidence. Convicts brought property with them and obtained more by working for wages in their time off. If the law had held they did not own this, then the authorities could not have stopped convicts pinching things from each other. To protect their property, convicts had to be able to bring a case and give evidence.

While the convicts were serving their term, they had to work for the government or a private master. This was the punishment laid down by the law. If they did not work or were rude to their master, the men were flogged and the women sent to the Female Factory which was a workshop and prison combined. These punishments too were imposed by the law. Masters could not punish their own servants; they had to take them to the local court. At the court the convicts could also lodge complaints about their masters, an important right made possible by the rule that they could give evidence.

When they had served their term or received a pardon, the convicts were told they had all the rights and liberties of free subjects. In some cases this was more than they would have been entitled to in England. There for some crimes you were deprived of rights for ever.

The decision to use English law to run a colony of law breakers made an abnormal colony into a more normal one. The law breakers were regarded as still having legal rights; if they were to be punished further it was by the law, and when their term was up they were free subjects.

The colony’s first law courts were very different from the English ones. The judge was a military officer, known as the judge advocate. In criminal cases there was a jury, but again this was made up of six military officers who decided the case along with the judge. A majority verdict was enough to convict the accused. The early judges were not trained in the law. The only people trained in the law in the colony were lawyers who had been sent out for fraud and forgery. They were allowed to practise in court since there were no free lawyers. In these odd-ball courts English justice was followed more or less.
Colonial courts

From 1810 the judges were trained in the law. The governor at this time was Lachlan Macquarie, the builder and improver, friend of the ex-convicts, and firm believer that only he should rule. This is what the British government still believed: the new judges were still officers under the governor’s command.
Macquarie versus the judge

When Judge Jeffrey Bent arrived in 1814 to open a new civil court he was appalled at ex-convicts practising as lawyers. He refused to have them practise in his court. Two free lawyers had been sent from England by the British government, but only one had arrived. Until there were two, Bent was determined to keep his court closed.

The governor asked him to admit the ex-convict lawyers. Macquarie did not want legal business to be held up and he did not like a slur being cast on the ex-convicts. Bent was furious with the governor for interfering with the independence of a judge and for polluting the legal profession with ex-convicts. The quarrel continued and the court stayed shut. Bent accused Macquarie of governing like a Roman emperor – he wanted his wish to be law. He refused to pay toll on the Parramatta Road because he said a governor acting alone had no power to enforce a tax.

Bent is usually depicted as the villain in this story. Macquarie is the good guy protecting the former convicts. But the usual rule – it is our rule – is not to have ex-crims as lawyers. New South Wales was such a strange society that the usual rules had unusual effects. Bent was not simply keeping out a few bad eggs; he was putting down all the ex-convicts who thought they could resume their old position in life. The British government supported Bent’s principle and ruled that the ex-convict lawyers must no longer appear in court. The free lawyers kept them on as ‘clerks’ since they knew the business and the clients so well. But Bent himself was recalled for being rude to the governor. Macquarie had said either he goes or I go.

Macquarie was the last governor to rule alone and to have power over judges. From 1823 the governor had a small council and judges were independent. The same arrangement was also made in Tasmania, the only other colony at this time. The courts had the full powers of English courts and operated more or less as they did except for one thing – the jury was seven military officers. The ex-convicts and their supporters wanted ordinary juries which they saw as their right as free subjects. They continued to ask for this. They were not unhappy with the verdicts of the officers. They wanted the right to sit on juries as a public demonstration of their worth. Many of them had done well and were respectable citizens. A few were very wealthy, much wealthier than many of the free settlers who looked down their noses at them.
Demand for juries

The free settlers did not want to have ordinary juries if ex-convicts were to sit on them. They feared that this was the first step to ex-convicts running the colony which would happen if the British government allowed a local assembly for which ex-convicts could vote. Ex-convicts were much more numerous than the free settlers. The free settlers said that if New South Wales were to have juries and an assembly, special rules would have to apply: property alone could not be a test of the right to sit on a jury or to vote.

The British government faced a problem. Juries and assemblies were the rights of British subjects who had settled overseas, but were ex-convicts the right people to judge guilt and innocence in a criminal trial? Our rules today exclude convicted people from juries. This was another of the odd problems which a convict colony threw up. The British government solved it by doing nothing. It didn’t allow ex-convicts to sit on juries or make special rules for juries. It continued with the military juries for another ten years.

Ex-convicts were allowed to sit on juries in criminal cases from 1833. The free settlers were angry about this, but it was becoming clear that the convict era would soon be over. Free workers were now coming from Britain as well as convicts and the native-born population was increasing. In 1839 the British government announced that transportation to New South Wales was finished. Only then did it decide that there could be voting for two-thirds of the Legislative Council. If ex-convicts met the property test they could vote. This was introduced without bitterness in 1843.

The great danger of a convict colony was that the ex-convicts would become a degraded group not enjoying the same rights as others. Some of the free people wanted this. It didn’t happen partly through luck, partly good management and partly because the ex-convicts, seizing their chances, made themselves into a prosperous and wealthy group who could not be ignored. The former convict colony could move to self-government with its peculiar problems already solved.
Ex-convicts’ rights

Western Australia and South Australia, founded separately as free colonies, had not faced these problems. From the beginning their governor had a council, the judges were independent of the governor, and ordinary juries operated.

When the colonies acquired self-government, judges were no longer appointed from London. They were appointed by the colony’s government which was responsible to parliament. The parliaments could pass almost any laws they liked on internal matters. The British government had the right of veto which it used very rarely. The judges were not as free. They were part of the common law system and from their courts people could appeal to the Privy Council in London, the highest court for the empire. The judges had to give close attention to the rulings of British judges.
Appeals to England

The creation of the Commonwealth created a new court, the High Court. Some of the founders wanted to make this the last court of appeal in Australia and stop appeals to the Privy Council. But others did not want to break this link and the British government wanted it preserved. So Privy Council appeals survived from both the High Court of Australia and the Supreme Courts of the States. The judges still had to follow British precedents. The process of freeing Australian courts from British supervision began in 1968 and was completed in 1986. Australian courts still look for guidance and suggestion to British cases just as they do to cases throughout the common law world, but British cases no longer have any special standing.

In the 1980s the High Court became bolder in its interpretations, more ready to depart from precedent. It was called an ‘activist’ court. No longer bound by British precedent, its boldest act was to overturn the starting point of English law in Australia, the doctrine of terra nullius.
‘Activist’ court

In a case brought by Eddie Mabo in 1992 it ruled that his people in the Torres Strait islands were the owners of their lands and that native title had existed throughout Australia at the time of British settlement. Where land had been sold or leased native title had been removed, but on crown land it still survived.

There was a doubt whether a pastoral lease removed native title. In the Wik case in 1996 the court ruled that it did not. It pointed to the fact that the first pastoral leases, by order of the British government, had allowed the Aboriginal people the right to hunt.

The court was both praised and condemned for these decisions. The critics said that such a fundamental change should have been made by the parliament, not by unelected judges. The supporters of the court said this was a case where the court had to act because the parliament had not. Land rights legislation for Australia had been talked of, but not provided. Some of the judges said the Australian people would want them to decide as they did. Who are they to judge what the people want, said the critics.
Criticism of High Court

The court could have told Eddie Mabo that according to precedent he didn’t own his land and that may have spurred parliament to act. But judges have to deal with the case before them and do justice. The majority of the court, with the evidence before them, thought it would be an injustice to decide against Eddie Mabo.

The parliament remains in charge. After the Mabo and Wik decisions, governments put measures to parliament to define who had native title and how far this right would extend and when it would be overridden. It could have passed a law to abolish native title on all land.

One of the judges of the 1980s said that of course judges reflect public opinion in their decisions. It would be very strange if they did not. The question is whether they should lag behind public opinion, be up with it, or ahead of it. If they are too far ahead, their judgements will not stand. On Mabo and Wik, they were probably just a little in front.

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