Citation: Alex C. Castles and Michael C. Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia, 1836–1986, (Adelaide: Wakefield Press, 1987), pp. 1-28 1 The Aboriginals and their Law



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Citation: Alex C. Castles and Michael C. Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia, 1836–1986, (Adelaide: Wakefield Press, 1987), pp. 1-28

1 The Aboriginals and their Law
From the first the English have occupied Australia as if it were an uninhabited and desert country. The native population were not conquered but the English Government, and afterwards the colonial authorities, assumed jurisdiction over them as if they were strangers who had immigrated into British territory, and punished them for disobeying laws which they could hardly understand, and which were palpably inapplicable to their condition.
Acting Chief Justice Molesworth, in the Victorian Supreme Court, 1885.
Law came to South Australia long before Europeans ventured there. The first law in the region was developed by the Aboriginals as a vital, living force in the ordering of their lives. Aboriginal law was established within tribal groupings and banded down by word of mouth through countless generations. The Aboriginals governed their lives with carefully nurtured rules like those which European legal systems, for example, had long known and understood.
Over twenty centuries and more the Aboriginals created a sophisticated range of social relationships with acknowledged rules and penalties for breaching these which they enforced amongst themselves. Marriages were strictly controlled within closely defined relationships. There were offences like the crime of sacrilege used in Europe when damage was inflicted on a tribal totem with its deep religious significance to Aboriginal communities. Some of the practices followed by the Aboriginals may have seemed strange, even barbaric, to the first European settlers who made their way to Australia with hefty law books and other paraphernalia to regulate their activities. But there were still clearly recognisable parallels between the ways Europeans and Aboriginals controlled their affairs.
Community practices, customs as the English called them, were still acknowledged as a source of law in England and elsewhere, even if they had sometimes been overlaid with other, newer forms of law making as well. The newcomers might find it strange that Aboriginals did not seem to possess any land as individual owners. The Aboriginal notion that tracts of land were jointly the property of a tribe, however, was not fundamentally different from the way common lands could still be held in England, with roots going back to Anglo-Saxon times. The settlement of some Aboriginal disputes by combat probably seemed uncivilised to many of the Europeans. Trial by battle, however, was long used in Europe in the middle ages and earlier. It had been mostly discarded after the fifteenth century but it remained formally as part of English law, for example, until the nineteenth century. It was only after an accused [2] man claimed the right to prove his guilt or innocence by battle in 1819 that this ancient mode of trial was finally abolished by the British parliament.
From the time the first Europeans came to South Australia, however, Aboriginal law was quickly placed under siege. It was an integral part of the complex fabric of Aboriginal tribal life. As this began to be destroyed in many areas by the ravages of European diseases, the seizure of Aboriginal lands and other causes, a system of laws with roots going back to beyond the beginnings of European civilisation seemed to be moving to extinction.
Well-meaning clerics sought to wean the Aboriginals from what they regarded as pagan ways, which included the age-old laws they had used to govern their lives. Land hungry speculators moved the Aboriginals away from their ancient tribal lands and their sacred places which played a significant role in the regulation of Aboriginal communities. Within sixty years of the first official British settlement in South Australia, which began in December 1836, it seemed that Aboriginal law within the region would soon disappear. But even amongst peoples long forced from their tribal lands, Aboriginals left on the fringes of European communities, the folk memories of their ancient laws were still handed down from generation to generation. Further away, there were others, like the Pitjantjatjara in the north-western reaches of South Australia, who were largely, sometimes entirely, untouched by European influences until the twentieth century. With this, Aboriginal law stayed in being in varying degrees. It was alive but sometimes dormant, although it was unrecognised by the European settlers and their government.
The assault on Aboriginal law in South Australia and the way of life which embraced it began in a minor fashion even before the first official British settlement took place in the region. Prior to this seafarers and adventurers, Bass ‘straitsmen’ as they were sometimes called, had made temporary homes on Kangaroo Island from early in the nineteenth century. Later a few toughened individuals settled more permanently on the island. The contacts of these men with the Aboriginals foreshadowed the often callous way Europeans would soon begin to affect the careful ordering of Aboriginal societies. The visitors to Kangaroo Island were mostly itinerants, hard, rough whalemen and sealers. But some like ‘Abyssinnia Jack’ and ‘Governor’ Wallen came to make their permanent homes on the island. The Aboriginals who had once lived there had disappeared years before. Some of these men sought out Aboriginal women on the mainland, forcibly abducting them from their tribes. They helped to set a pattern which was often to become almost [3] a commonplace on the frontiers of European settlement and was to continue through the century and beyond. This was to be a well recognised practice In the far north, particularly in the Northern Territory of South Australia, after it was handed over to the colony in 1863. Aboriginal women were regularly kidnapped from their tribes to meet the sexual demands of European males and also to serve as unpaid workers for their white ‘husbands’. In the process, tribal relationships ordained by Aboriginal law were disturbed, creating conflict not only with white settlers but also within the well-regulated framework of Aboriginal communities.
Activities like this, however, were not the only causes which seemed almost inexorably to bring the working of Aboriginal law to the brink of extinction. European afflictions such as smallpox, measles and the debilitating venereal diseases which followed in the wake of European contacts with the Aboriginals helped quickly to destroy tribal societies. The elders charged with the responsibility of handing on the wisdom of their forebears, including the working of tribal laws, might die of one European disease or another without passing on their priceless knowledge of Aboriginal law to their chosen successors. The policies of colonial governments generally turned away from giving any form of official recognition to Aboriginal law. South Australia, like the rest of the continent, was treated by the British authorities as unoccupied, empty land space, ‘waste land’ as it was sometimes officially described. In Britain, governments adopted the philosophy that peoples like the Aboriginals who did not cultivate the land, who generally made no permanent homes for themselves, should not be regarded as having any recognisable legal rights to the lands their tribes might have been using without serious encroachments for many centuries. Instead, the Aboriginals were to be treated as coming under British dominion, subject theoretically to the same laws which applied to the European settlers, without any necessary account being taken of the ways they had previously governed themselves.
As crucial as anything in its effect on Aboriginal societies was the way in which tribal lands were mostly taken from them as they came into contact with European settlers. The tribal regions of the Aboriginals were not simply the defined territories of small nations. They were much more than geographical locations where tribal members found their physical sustenance in hunting for game and seeking other food supplies. The Aboriginals had a deep spiritual relationship with their traditional lands and its sacred places. They had an affinity with this territory which transcended the present. Their lands provided links to their spirit ancestors, the dreamtime of man’s beginnings as the Aboriginals understood creation. [5] They brought together religious and temporal experience into an all embracing unity related to the land. This structured the Aboriginal way of life and ordered the working of its law.
Many of these tribal lands which were so central to Aboriginal life were soon to be taken over as official European settlement began in South Australia. Pre-eminently, the new colony was what Douglas Pike, its most distinguished historian, once described as a ‘land job’. Its British planners meant the colony to be self-sufficient. It was supposed to pay its way, financing the running of government and the emigration of new settlers from the sale of so-called ‘waste lands’, the territory which the British parliament declared in 1834 in the South Australian Colonisation Act to be open to European occupation without regard to any territorial claims the Aboriginals might have. The only formal limit the British parliament imposed on the disposition of all of the land in the colony was the requirement that it should not be sold if it was to be used for ,roads and footpaths’. For the rest, a group of entrepreneurs, specially designated by the British parliament as colonisation commissioners, was authorised to sell it and use the proceeds to finance the colony’s development. The commissioners were a group of businessmen who were determined to make the best of this opportunity.
Nevertheless there were some high officials in London who hoped that some special arrangements might still be made to give better protection to the Aboriginals in the proposed colony. One of these was Lord Glenelg who became secretary of state for colonies not long after the British parliament had passed the legislation which authorised the creation of the new colony. He tried to obtain some guarantees from the commissioners that they would not allow land arbitrarily to be taken from the Aboriginals and would take other steps to protect the original inhabitants of the colony. He even suggested that the planned settlement should be delayed so that parliament might be called upon to reconsider the situation. But Glenelg found that large sums had already been spent on the venture and any further delays in sending out the first settlers would probably make him subject to strong criticism. Faced with this dilemma, the best he could achieve was to obtain a commitment from the commissioners that arrangements would be made to hold some land for tile Aboriginals and a person would be appointed to guard their interests In the colony. This compromise, however, had no legal force as the commissioners fully understood. Before the first official settlement was made the commissioners had already used their authority under the British Act of 1834 to affirm that for the time-being they would treat all land within the boundaries of the new colony as being freely available to be sold to Europeans. They also pointed out to Glenelg that without [7] a change in the statute they were bound to abide by its provisions.
It was not an auspicious beginning for those who hoped the Aboriginals might be given better treatment in South Australia compared to what had happened in the other British colonies which had previously been established in Australia. Glenelg and his advisors, however, were not completely powerless in dealing with the situation of the Aboriginals. The Act of 1834 had created a hybrid system of authority in the colony. While the Commissioners were independently responsible for the sale of the colony’s lands, using the money they raised to finance its activities, day to day colonial administration was to follow the more traditional pattern of being vested in a colonial governor and other officials directly responsible to the British government. As a consequence, the first governor, Sir John Hindmarsh, and his successors, were subject to special directions from the British crown. By tradition, these were set out in Letters Patent, Instructions and other directives which were issued from time to time by the British government.
On 19 February 1836 Letters Patent were sealed which formally declared that South Australia was to be occupied as a colony under the British Crown. In the process the document also declared that this instrument was not to he taken to affect the rights of the Aboriginals or their descendants to the occupation of ‘any lands therein now actually occupied or enjoyed by such Natives’. Not long before he sailed Hindmarsh was issued with a set of formal Instructions. In these he was directed ‘to the utmost’ to promote ‘Religion and Education among the Native Inhabitants’. He was told as well to ‘protect the Aboriginals in their Persons and in the free enjoyment of their possessions’. The governor was finally directed to use ‘all lawful ways and means’ to prevent ‘violence and injustice’ to the Aboriginals. He was to take such measures as were ‘necessary for their conversion to the Christian faith, and for their advancement in Civilisation’.
These emanations of crown authority showed benevolent intentions towards the Aboriginals. But legally they could do nothing to alter the arrangements made in the enactment of 1834. It was a revered feature of British constitutional law that British ministers, even the monarch, were subject to the over-all control of parliament when its directions were formally laid down in statutes. High-mindedly, the Letters Patent creating the colony might declare the rights of Aboriginals to their lands should not be affected by the British occupation of this region. This, however, could do nothing to limit the authority of the commissioners under the terms of the 1834 enactment. In contrast, as these documents dealt with other matters concerning the Aboriginals they provided a formal expression of the way the British authorities believed its colonial [8] administration should go about ordering relationships with the colony’s original inhabitants. And in this as much as in the Act of 1834 there were far-reaching consequences involved for the Aboriginals and their way of life whatever the intentions of the British authorities might have been.
At core, Hindmarsh’s Instructions proceeded on the basis that the Aboriginals were to be treated as British subjects. This meant that important safeguards could be imposed on European dealings with the Aboriginals. Most significantly, the Aboriginals were to be entitled to the protection of the colonial authorities and their laws. Europeans, for example, were to be punishable for offences against the Aboriginals in the same fashion as the newcomers were to be subject to legal restraints in their relationships with each other. But one consequence of this, even if it was not clearly spelled out in the royal documents, was the way this also imposed restrictions on the Aboriginals, including the continuing operation of their laws. The Aboriginals, too, like the Europeans, were to be subject to colonial laws. Their relationships between themselves as well as their contacts with Europeans were to be governed by colonial laws without any regard for the tribal rules which the Aboriginals had used previously to regulate their lives.
Again the full import of these crown determinations on the treatment of the Aboriginals was not as obvious as it might have been when Hindmarsh formally took up the reins of the colonial government at Holdfast Bay on 28 December 1836. Constitutionally, what really mattered on this occasion was when the governor fulfilled the legal requirements of setting the colonial government in motion in one of the tents the newcomers had erected on the foreshore. There, in private, the governor produced the Letters Patent authorising the establishment of the colony under the terms of the Act of 1834. He then proceeded to swear his oaths of office before the colonial secretary, Robert Gouger, and other steps were taken to regulate the new colony’s affairs. But this was also to be a day of celebration. Mid-afternoon the union flag of Britain was raised before the colonists who had already arrived. A feu de joie was fired by the small group of marines who had accompanied the governor, appropriate toasts were organised and the best victuals the colonists could find, including a ‘fine Hampshire ham’, were prepared to enhance the occasion. To this, Hindmarsh added another flourish, a touch of pomp and circumstance, by having a document he called a proclamation read out to the assembly by the colonial secretary.
Despite its pretentious title, this proclamation was really no more than a government notice, no different in kind from the style of homily governors like Phillip in New South Wales had directed to gatherings [9] like this when they had taken up the reins of colonial government in similar circumstances. This document as Gouger read it out directed the attention of the European colonists to the policies the British government had already determined should be operative in the colony, including the way in which the Aboriginals were to be treated. The colonists were told the Aboriginals were to be accorded ‘the privileges of British subjects’. Following his Instructions, virtually to the letter, Hindmarsh declared that the colony’s original inhabitants ‘were to be regarded as much under the safeguard of the law as the colonists themselves’. The Europeans were warned they could be punished with ‘exemplary severity’ if they committed acts of ‘violence’ or ‘injustice’ against the Aboriginals. The scattering of Aboriginals who were in the vicinity at the time, however, were not apprised of the necessary consequences which flowed from this for the future ordering of their way of life and the working of their laws under the new colonial administration. The granting of the ‘privileges’ of British subjects carried with it the requirement that the Aboriginals were now to be regarded as bound by European laws, subject to punishments imposed by colonial courts, whatever their own tribal laws might have required.
This policy on the treatment of the Aboriginals, as the imperial authorities decreed it, was no more nor less than what bad been turning into a generally acknowledged precept for all British colonial administrations in Australia. Even in the midst of the almost genocidal impact of colonial administration on the Aboriginals in Van Diemen’s Land, Lieutenant-Governor Arthur and others had expressed basically the same sentiments, placing small painted boards on trees to inform the Aboriginals with a series of pictures that they were to be given equal rights with Europeans under colonial law. In New South Wales and Western Australia, too, the British authorities had directed the imperial administrators to make every endeavour, whatever the practical difficulties, to protect the Aboriginals against the brutality and unlawful killings which had too frequently marked relationships between the European settlers and the Aboriginals.
There were motives in this which went beyond simple basic notions of fairness in the regulation of colonial affairs. In an era when Britain had recently outlawed slavery in its own possessions and taken a strong, moral stand against the slave trade in general, there were prominent dignitaries, churchmen and others, who espoused firm views on the treatment of peoples like the Aboriginals which they were determined should be applied in all British colonies. Increasingly it became a rubric of colonial administration that the subjection of peoples like the Aboriginals to colonial laws was one important way of helping to draw [10] groups like this into the mould of European societies. Churchmen sought this as a means of turning ‘pagan’ peoples, as they viewed them, away from non-Christian habits. Like others in their situation, Aboriginals were supposed to be encouraged by this to find a state of grace in the Christian religion, giving up the laws and other practices of their traditional way of life which were believed to run counter to Christian ethics.
Even those who were less concerned with evangelising the Aboriginals saw other important merits in making the Aboriginals subject to European laws. For the time-being Britain seemed all powerful and understandably so. It was the economic leader of the world community in the wake of its industrial revolution. It still basked in the shadow of the ultimate victory of the British nation and its allies in the Napoleonic wars and retained strong naval and military forces to protect its international trade and maintain its influence in its many colonies and other places around the globe. In circumstances like this it was not surprising that there were those in Whitehall and elsewhere who regarded the state of British ‘civilisation’ as supreme. With well-meaning benevolence they saw it as a special opportunity for peoples like the Aboriginals to be drawn from their older, traditional ways and advanced as ‘noble savages’ into the mysteries and the accompanying benefits of the British way of life.
In his sermonising way, Hindmarsh referred to purposes like this in the proclamation which Gouger read out for him at Holdfast Bay on the day the colony had begun its official existence. It was the colonial administration’s clear intent, so the settlers were told, that the Aboriginals were to be advanced in ‘civilisation’, and finally ‘under the blessing of Divine Providence’ they were to be led to conversion to the Christian faith. More explicitly, George Grey, who was a close advisor to the British government and was later to become the third governor of South Australia, wrote in 1840 of the importance he and others placed on making the Aboriginals subject to European laws if the political and religious aims of the colonial administrators were to be achieved in places like South Australia. As he candidly remarked, it was impossible to conceive that ‘individuals subject to savage and barbarous laws’ could ‘rise to a state of civilisation’. He argued that the forced application of European laws was an important means of turning the Aboriginals from such ‘barbarism’, helping to lead them into the ‘civilised’ state of European communities, enjoying the privileges of British subjects while also exercising the responsibilities which went with this status, including obedience to the laws the colonists applied amongst themselves.
In practice, however, the high flown rhetoric of colonial administrators and the pious aspirations of well-intentioned clerics could soon be dissipated, even ignored, on the frontiers of empire. There had been views [11] like this running through official pronouncements on the treatment of the Aboriginals since the beginnings of European settlement in Australia. But this had not prevented serious outrages against the Aboriginals, sometimes with the official connivance, even the blessing, of some authorities. When administrators took a stand against the maltreatment of the original inhabitants it became increasingly common for settlers simply to conspire with each other to make sure that no word reached the ears of officials on the way they were conducting their relationships with the Aboriginals.
To further exacerbate the situation, as South Australia’s colonial administrators soon found, the English-style law which the British officials believed would be applied in the colonial courts was ill-suited to the regulation of matters concerning the Aboriginals. There were some in authority, including Charles Cooper, who presided over the colony’s most significant court for many years, who doubted whether it was appropriate anyway to make Aboriginals subject to European legal proceedings when they had not been in meaningful contact with European settlers. To Cooper it seemed patently unfair to try Aboriginals for offences in European courts when they had no prior knowledge of the nature of colonial laws and it could seriously be doubted that the Aboriginals could be expected to understand the nature of European legal procedures. At the same time, the prosecution of Europeans for offences against the Aboriginals suffered from a grave impediment. The testimony of Aboriginal witnesses could not be admitted as valid evidence in European courts if Aboriginals had no clear belief in the style of after-life professed by Christians. This meant there could be occasions when Europeans could go free even if they had committed offences against the Aboriginals when there was no evidence from Europeans to support the charges.
The patent unsuitability of the existing European law to order relationships with the Aboriginals became apparent to Hindmarsh and his advisors within a few months of the Governor’s arrival in the colony. In mid-1837 the body of a whaleman called Driscoll was found not far from Encounter Bay. He had last been seen in the company of an Aboriginal, Reppindjeri, or ‘Black Alick’ or ‘Elick’ as Europeans in the vicinity had variously described him. Together with his two wives, Reppindjeri had agreed to act as a guide to the whaleman. The Aboriginal was seized, imprisoned on a colonial vessel and sadistically incarcerated in a barrel for a time when he proved to be recalcitrant in his captivity. There was credible information that the whaleman had been killed after he had attempted sexually to molest one of Reppindjeri’s wives. Nevertheless, local Encounter Bay whalemen and others wanted retribution with the Aboriginal tried for murder in the colonial courts. [12] Reppindjeri remained imprisoned for four months while Hindmarsh and others pondered on how they might deal with the situation. Advocate general Charles Mann, the governor’s chief legal advisor, considered that it was probably an ‘absolute necessity’ to try and hang the alleged offender. But he had his doubts on the way this might be done legally, given that the only witnesses were Aboriginals whose testimony did not seem to be admissible in European court proceedings. Hindmarsh in a letter to London opined that it would be ‘worse than useless to bring him before a jury unless there is almost certainty of his conviction’. As it transpired, Reppindjeri himself saved the local officials from what they seemed to consider was an embarrassment. Fortuitously, as far as they were concerned, he managed to escape from his captors and nothing further was beard of him.
The dilemma which Hindmarsh had faced in trying to deal with Reppindjeri underlined what was soon to become a pressing issue for the local colonial administrators. On the one band, European colonists demanded protection and beyond this forms of retribution against those Aboriginals they regarded as hindering the advancement of the colony. Where Aboriginals resisted European encroachments, settlers wanted the colonial government quickly to put a stop to resistance. As Aboriginals understandably began to hunt the sheep and cattle the Europeans were moving out into the countryside, the settlers demanded, too, that these depredations, as they viewed them, should be halted with the full rigour of European law. On the other hand, the governor and his advisors, and the courts which the government were establishing in the colony, were supposed to fulfil the dictates of the administrators in London, treating the Aboriginals as British subjects, only allowing them to be tried and convicted for offences under the colonial laws and procedures which also applied to the European settlers. But as the events surrounding the capture and imprisonment of Reppindjeri had clearly shown, there could well be great, perhaps even insuperable, difficulties in the way of doing this fairly or effectively.
This dilemma continued to bedevil European relationships with the Aboriginals for years to come and soon led to forms of officially sponsored actions which were quite at variance with what the more highminded among the colony’s planners had envisaged. Events reached a climax in the early 1840’s as strong demands were made by many colonists to control the Aboriginals at whatever cost, even if this meant that the basic principles of law which were supposed to apply to the Aboriginals were really set aside. A potent example of this occurred in the first half of 1840, after the brig Maria was wrecked on Encounter Bay off the area known as the Coorong. It was discovered that twenty-six European [15] survivors – men, women and children-had subsequently been killed by members of an Aboriginal tribe living in the vicinity. Adelaide was shaken by the news and the colony’s second governor, George Gawler, ordered out an expedition to apprehend the tribe. The expedition was led by Major O’Halloran, who had been put in charge of the colony’s police. The major was instructed ‘to bring to summary justice the ringleaders in the murder’. He was authorised specifically to execute by shooting or hanging up to three of these if he believed they had actually participated in the killing of the shipwrecked Europeans. O’Halloran and his party captured a large group of the Milmenrura tribe, picked out two who seemed the most ‘villainous’ and, after what one observer described as a ‘drumhead court martial’, sentenced them to death by hanging. The next day a crude gallows was erected near the graves of the unfortunate survivors of the Maria. In the presence of the Aboriginal tribe, the two condemned men were executed.
The arbitrary hanging of the two Aboriginals on the Coorong was followed quickly by a further period of serious tension in European relationships with the Aboriginals. Many colonists were stirred by attacks by large bands of Aboriginals on ‘overlanders’ driving sheep and cattle to the colony from New South Wales. Aboriginals gathered in large bands in the upper Murray region of the colony in mid- 1 84 1, clashed with the drovers and scattered large consignments of livestock. A privately organised group of volunteers set out from Adelaide to try to recover some of the lost animals. In one incident, which virtually amounted to a pitched battle, eight or ten Aboriginals were killed without the loss of any European lives. An official expedition was then organised to go to the area, headed by the commissioner of police. It met with a party of overlanders who reported that two days previously they had lost four of their number in a fight with a large band of Aboriginals near the Rufus river, a tributary of the Murray river about three hundred and eighty kilometres to the north-east of Adelaide. At the same time, the overlanders reported that they had killed five Aboriginals. The expedition tried vainly to catch up with the Aboriginals but was ultimately forced to return south without capturing any. In September another party of Europeans, including some police officers, was despatched to the area again. It joined up with a group of overlanders which had just killed ten Aboriginals. This time, the Adelaide expedition confronted a large group of tribespeople near the Rufus river. Without the loss of any European lives, at least thirty Aboriginals were killed. The South Australian party and the overlanders from New South Wales blasted away with their guns at a large number of fleeing Aboriginals for twenty minutes or more. Some Aboriginals had already been seized and one, as an official report stated [16] it, was fired on attempting to escape by swimming with his hands bound by manacles while his feet were clamped in iron fetters joined with a chain.
These outbreaks of violence were a cause of deep concern in London. The official hanging of the two Aboriginals on the Coorong In particular amounted on its face to a blatant denial that the Aboriginals in the colony were to be entitled to the protection of colonial law, including trials before ordinary courts, prior to any punishments being inflicted on them. Gawler sought to excuse his actions, pointing to an opinion his council had received from Judge Cooper that Aboriginals like the members of the Milmenrura tribe were effectively beyond the pale of European influence. As such, Cooper had argued, Aboriginals with little or no prior contact with Europeans should not be regarded as amenable to colonial legal processes. It was one thing, however, to argue along these lines to prevent unfairness and injustice in the conduct of court proceedings, and something of quite a different order to use this line of reasoning to justify what virtually amounted to lynch law in the treatment of the Aboriginals. The British authorities were not impressed and even less so when the governor claimed the Milmenrura might even be regarded as a ‘foreign enemy’ which really had no rights under British law. If this was so then the Aboriginals might be acknowledged as a nation in their own right, with separate laws and other attributes which were entitled to recognition under British law, running counter to the whole course and conduct of colonial policy in Australia since the beginning of European settlement on the continent. Gawler was admonished and strongly so. He was informed that the British government bad concluded on the advice of its law officers that the governor and other officials who had been involved in the hanging of the two Aboriginals on the Coorong were technically guilty of murder or at least were to be regarded as accessories to this crime.
No formal action, however, was taken against Gawler and the others, like O’Halloran, who had been directly involved in what essentially amounted to an unlawful reprisal against the Aboriginals suspected of attacking the survivors of the Maria. Increasingly, the British authorities showed an inclination to accept reluctantly that in practice colonial administrators were faced with a difficult task in their conduct of relations with the Aboriginals, particularly as the strength of opinion among many settlers favoured punitive action being taken against them. As with the violent outbreaks on the upper Murray there was the attendant risk as well that vigilante groups of settlers might attempt to take the law into their own hands in such circumstances, creating special problems for maintaining the authority of government administration.
As officials in London reviewed the events on the Upper Murray they [17] noted that, after the killing of the thirty Aboriginals on the Rufus river, George Grey, who had recently arrived in the colony as Gawler’s successor, had convened a meeting of twenty-three settlers who previously had been appointed as justices of the peace and had been asked to inquire into the matter. After hearing a variety of evidence. this specially convened body had concluded that the European party had not acted with ‘unnecessary severity against the natives when obliged to fire on them’. Still with misgivings, but beginning to bow to what seemed to be the inevitable, the colonial officials concluded that actions like the affrays on the upper Murray could be condoned provided they did not exceed in severity what one official dispatch described ambiguously as ‘the limits of the strictest self-defence’. This was not quite carte blanche for the local colonial officials and ordinary settlers to act with indiscriminate violence against the Aboriginals. But it helped to make it less likely that Europeans would find themselves in conflict with the law as they sought to ensure the Aboriginals placed no serious impediments in the way of European occupation in the region.
In the more isolated areas of the colony, beginning on Eyre peninsula after the establishment of Port Lincoln in 1839, and then in the southeast as European settlers made their way there, conflict between white settlers and Aboriginals sometimes reached serious proportions, as along the upper Murray. Eyre peninsula in particular was a running sore in the conduct of European-Aboriginal relations for two decades and more. By 1842 the town of Port Lincoln was said to have declined seriously in population because of conflict with the Aboriginals. There were killings on both sides. A military contingent sent to the area in 1842 had little success in its attempts to pacify the local tribespeople but managed to wound mortally an Aboriginal innocently fishing on the shores of a local bay. In the same year, five Europeans were killed by Aboriginals in one month. Several Aboriginals were tried and convicted for murders in the area between 1840 and 1860, sent back to the scene of the crime, and there hanged publicly.
At the same time, as local legend bad it-although it was probably exaggerated and the event may never have happened-after a white woman and her infant child were killed by an Aboriginal in 1849, the dead woman’s husband took a terrible revenge on the local tribespeople. He and others, so the legend claimed, drove local Aboriginals to their death over high cliffs at Waterloo Bay. In 1849 it was noted officially that five Aboriginals died after taking poisoned flour from a hutkeeper. The European poisoner, however, managed to elude capture by the authorities and fled to California.
Much later in the century, the situation in the Northern Territory [19] of South Australia was probably little better, if at all. In 1890 the official government representative in the area reported to Adelaide that relations with the Aboriginal tribes were ‘hopelessly irreconcilable’ as settlers moved out to take up pastoral leases in the hinterland.
To make matters worse, there were officers in government service who had little patience with official efforts to treat the Aboriginals as fairly and reasonably as the British authorities had originally planned. Comments like those of the British authorities on the Rufus river affray were well known to men like Alexander Tolmer, a long serving officer in the colonial police who acted for a time as Police commissioner. Tolmer was a freebooting adventurer, one of the flotsam of empire who frequently made their way to the colonies to seek fame and with luck to gain some reasonable financial recompense for their labours. In the twilight of his life he wrote with candour on his approach to dealings with the Aboriginals. He remarked that in circumstances like the controversial hanging of the Aboriginals on the Coorong he still believed that ‘summary justice’ like this was often the best ‘preventive’ to maintain effective control over the original inhabitants of the colony. He asserted firmly that he preferred dealings with the Aboriginals to be carried on without regard to the ‘tedious process of the law’. Attitudes like this were also mirrored in other ways in the ordering of colonial affairs.
A watercolour painting made in 1845 depicts police officers herding Aboriginals like cattle to a court in Adelaide where they were to be dealt with for trespassing. In 1850, an unknown artist showed two Aboriginals chained by their necks to a dray as they were being taken into custody by two constables for suspected crimes on Yorke peninsula. Not long before, after an Aboriginal had died on Eyre peninsula, his white employer admitted that his Aboriginal workers were regularly flogged and this normally seems to have passed without complaint by the constables in the area. During the man’s trial, the jury foreman seemed to reflect a body of local opinion when he exclaimed that ‘everyone knew it was general practice to thrash natives if they deserved it’.
Views and practices like this, however, provided only one set of insights into the ways Aboriginal communities were progressively and often quickly brought forcibly into decline, even to extinction, as they came into contact with Europeans. The fatal impact of European diseases, the kidnapping and exploitation of Aboriginal women, the use of superior weaponry against the Aboriginals, imposed a heavy toll on tribal communities. But the loss of tribal lands, the shifting on from sacred places, stripped many Aboriginals of much more than physical possessions. It took away some fundamental elements of their being, their direct links with spirit ancestors, focal points of their traditional way of life and the [20] working of their law. The substitutes the colonists preferred in return mostly did little, if anything, to alter this condition. At Glenelg’s insistence, the colonisation commissioners did agree that one-fifth of the land they sold in the colony should he used for the benefit of the original inhabitants, with any money raised from selling this land being used to assist the Aboriginals. But nothing came of the scheme. Some land was allocated to the Aboriginals in 1840 but mostly for the purposes of farming along European lines. In the same year it was decreed that other small parcels of land should be given to the Aboriginals for ‘educational or relief purposes’ and ‘the containment of the Aboriginal problem’. Even limited moves like this, however, were opposed strenuously by some colonists. The nett result was that little was done-to alter the basic decline in Aboriginal community life in many areas . By the 1860’s much of the land designated after 1840 for Aboriginal use was leased to Europeans. In 1842, a British statute, The Waste Lands Act, overrode the original Colonisation Act of 1834. It authorised land to be set aside for Aboriginal purposes, and up to fifteen per cent of the moneys raised by land sales could also be made available to support the original inhabitants. Nothing like this sum, however, normally seems to have been appropriated in this way.
Side by side with these developments, other efforts were made to ameliorate the condition of the Aboriginals. Glenelg fought as strongly as he could to provide at least a minimum of protection for them. At his pressing the colonisation commissioners funded the appointment of an official described as a protector of the aboriginals. This office was continued on after the abolition of the commissioners’ authority and was one focal point for drawing attention to Aboriginal affairs in the colony. It sometimes helped to ensure that the maltreatment of the original inhabitants was not condoned. Edward John Eyre, the famed transcontinental explorer, was sworn in as a magistrate and took charge of a settlement at Moorunde, not far from the Rufus river. There he worked conscientiously with the Aboriginals, seeking to pacify them, providing them with blankets and food as he endeavoured to lead them into European ways.
Missionaries of various religious persuasions also ministered to the Aboriginals, seeking to bring them to a state of Christian grace. They lived and worked with the Aboriginals in a fashion which sometimes made them the most knowledgeable and perceptive observers of the traditional Aboriginal way of life, even if they did not necessarily approve of it. There were influential clerics in the colony, too, like the Anglican bishop, Augustus Short, who believed that these christianising activities should go on at whatever cost, even if contact with European missionaries [21] might visibly play a role in the disintegration of Aboriginal communities. In 1860 the Bishop solemnly observed to a select committee of the colony’s Legislative Council that continued efforts should be made to christianise the Aboriginals even if this affected their bodily health. He said with firm conviction that it was better the Aboriginals ‘died as Christians than drag out a miserable existence as heathens’.
By the year that Short tendered his remarks to the colonial legislators, the Aboriginals in the vicinity of European occupation had been virtually thrust aside, their numbers had rapidly declined, the remnants of once proud tribes lived a squalid existence on the fringes of European communities. Their women were exploited. The ravages of alcohol had been added to the other causes which seemed to point to the wholesale disappearance of the original inhabitants within a few generations. Along the way, the subjection of the Aboriginals to European laws had played its part as well in helping to make them forced appendages of European society, whatever their own feelings might be. The 1860 Legislative Council committee noted with sympathy that the application of colonial laws to the Aboriginals had not always been in accord ‘with the principles of equity and justice’. It even canvassed the possibility that some elements of tribal law might be allowed forms of recognition within the framework of the colonial legal system. But the charity of the committee was not reflected strongly in its recommendations. It had no firm suggestions to advance on how the existing situation might be changed.
Despite the early misgivings of Judge Cooper and some others in the colony, by 1860 the subjection of the Aboriginals to European laws had become a commonplace. To Cooper, the execution of the two Aboriginals on the Coorong may have been the logical consequence of his view that Aboriginals with little or no immediate contact with Europeans should not be treated as being amenable to colonial legal processes. But, as he continued to demonstrate publicly for more than a decade, his deepest concerns were related to the ways many Aboriginals seemed to him to he subject to unfair treatment when arraigned before the courts of the colony. He remained seriously perturbed by his belief that Aboriginals with little or no prior contact with Europeans could be expected to understand the nature of court proceedings. When no effective interpreter was available, he could simply dismiss a charge against an Aboriginal accused, on the basis that the defendant could have no reasonable grasp of the nature of the offence nor why he had been arraigned before a colonial tribunal. As late as 1851 he doubted the wisdom or the fairness of bringing Aboriginals before the colonial courts for European offences committed in tribal situations where the Aboriginals still regarded themselves as bound by their own law. Cooper’s views, however, were [22] not adapted generally by English-trained judges in Australia or elsewhere and more and more he conditioned himself to trying Aboriginals for European offences, even when the results might lead to the infliction of capital punishment. The judge consoled himself with the pious hope that the application of European laws to the Aboriginals would be regarded as part of the ‘civilising’ processes which would help to lead them to the enjoyment of a new, improved way of life.
Whatever their real knowledge and understanding of European law, a steady procession of alleged Aboriginal malefactors was brought before the colonial courts. In May 1839 two Aboriginals were convicted of the murder of a shepherd not far from Adelaide. They were the first of their race to be executed under colonial law. Their hanging set a pattern to be followed in many later cases, as they were ‘turned off’ in the parlance of the day, before a public assemblage which included she members of their own tribe especially brought together to witness the event. From 1836 to 1874 officials recorded that thirty-five executions took place in South Australia and twenty-two of those who went to the gallows were Aboriginals. At times the crown’s prerogative of mercy was extended to Aboriginals who bad been convicted of capital crimes, but not as frequently as might have been expected, given the tenor of the views of Cooper and others on the legal situation of the Aboriginals. The public execution of Aboriginals, preferably at or near the scene of their alleged crimes, in the presence of their tribes, became an acknowledged feature of colonial life. Many of the settlers held the strong belief that such displays would serve as much as anything to deter other Aboriginals from violating European laws. In 1849, for example, three convicted Aboriginals were returned to Port Lincoln to be hanged.
In 1858 the colonial parliament seemed to show enlightenment well in advance of the colony’s mother country when public executions were apparently outlawed and capital offenders were normally to be hanged behind the walls of the Adelaide Gaol. Nevertheless, in 1860, despite the ostensible strictures contained in this enactment, an Aboriginal was despatched to Streaky Bay for public execution. Soon after, the legislature remedied what some of its members must have regarded as an oversight in the statute of 1858. In amending legislation passed in 1861 the Governor-In-Council was authorised to direct that the hanging Of Aboriginals could be carried out at or near the scenes of their capital offences. Within the next two years Aboriginals were executed publicly at Port Lincoln and Venus Bay under the terms of this statute, and its provisions formally remained as part of South Australian law until 1925.
The discussion on this legislation in parliament and elsewhere underlined the fears many in the colony still clearly felt about the [23] Aboriginals and the need, as they viewed it, for special steps to be taken to hold them in check. The Register newspaper bad summed up its opinion on this when it urged, with the Aboriginals particularly in mind, the legislature to adopt a bill to enable touring magistrates to impose summary justice for capital offences. Already in 1854, provisions had been made for Aboriginals to be tried summarily by magistrates for lesser offences which required jury trials for white settlers, provided punishments did not exceed twelve months in prison. As the paper argued, ‘touring gallows world no doubt strike terror into the minds of the natives’. The legislature was not prepared to do this. But the Act to enable Aboriginals to remain the subject of public executions was passed with little opposition. One member went so far as to affirm that after such hangings gibbets should be employed in South Australia to display the rotting bodies of the Aboriginals after they had been executed, just as the remains of executed felons had been kept in public view in Britain down the centuries. This member seriously intoned that if ‘mildness and kindness was of no avail, a system of terror must be resorted to’.
In one way, however, the original unfairness of colonial law in relation to Aboriginals was at least partially remedied in the 1840s. Governor Grey in particular was deeply troubled by the manner in which the English legal principles which applied in the colony excluded testimony being given by Aboriginals where they could not demonstrate a belief in an after-life in the Christian fashion. At his behest, the colonial legislature passed an Ordinance which enabled Aboriginal testimony to be received in the colony’s courts without the swearing of the ordinary oaths used in English courts. The Ordinance, however, was not as all-encompassing as it might have seemed, even after it was subject to amendments in 1846 and 1849. Aboriginal testimony was still not treated on a full basis of equality with evidence given by Europeans. The evidence of Aboriginal witnesses was to be given such weight as a court determined, which left it open for such testimony to be still ignored by a court if it wished. There was a further and even more drastic limitation imposed on the value to be placed on Aboriginal evidence in the case of more serious criminal offences. No conviction in these circumstances was to be permitted solely on the testimony of ‘uncivilised persons’, as the legislature defined it. It was to be necessary still for sworn evidence also to be given by those who could take the ordinary oath, normally Europeans. Nevertheless, these changes did achieve some improvement in remedying tile previous situation. After the law was altered the first European was hanged for the murder of an Aboriginal and the reform constituted by Grey seems to have played a role in securing this conviction.
As the century progressed, however, later colonial legislators mostly [24] showed little interest in dealing comprehensively with the deteriorating condition of the Aboriginals. The inquiries of the select committee established by the Legislative Council in 1860 led to nothing of moment. More and more the Aboriginals were treated as being out of sight and out of mind, except in remoter areas like the west coast and the Northern Territory. Bishop Short told the select committee that he believed it was only a matter of time before the Aboriginal race disappeared within the boundaries of South Australia. The idealistic way peoples like the Aboriginals bad sometimes been described as ‘noble savages’ before 1850 gave way to harsher judgments which often quite wrongly pointed to the original inhabitants of the continent as being essentially unfitted in mind and other attributes to stand on a basis of equality with Europeans. In 1890 an historian of South Australia seemed to sum up a view on this which was probably held firmly by many Europeans around Australia. As he wrote, he regarded the Aboriginals as the ‘lowest in the scale of humanity’.
Meanwhile, the deterioration of many Aboriginal societies went on, seemingly an inevitable consequence of the march of ‘civilisation’ as many Europeans conceived it. The report of the select committee of 1860, for example, illustrated this by recording that the estimated number of Aboriginals around Adelaide had dropped from six hundred and fifty in 1841 to about one hundred and eighty in 1856. Once proud, independent communities were collapsing: some bad come to the brink of extinction; others had virtually disappeared. The case of the Ngarrindjeri peoples, whose lands had once stretched around the lower reaches of the Murray river, exemplified poignantly the breakdown of Aboriginal society. The collapse of their social organisation and its legal processes was well advanced by the 1870s. The Ngarrindjeri were probably amongst the most advanced of Aboriginal communities which ever developed in Australia. They lived a relatively settled existence. Their social organisation, and most particularly the operation of their laws, seems to have been as sophisticated as any among the original inhabitants of the continent. At the time of European settlement the Ngarrindjeri were divided into eighteen largely autonomous groups. They had reached beyond simpler ways of controlling their affairs with each of the groups having its own council or tendi, presided over by a chief called a rupelle. A nineteenth-century missionary who lived with them for many years recorded that each council administered justice ‘in accordance with the customs handed down by the tribe’. Trials took place, presided over by a rupelle sitting on a judgment seat called a tendi lewurmi. On occasions there were also meetings of a ‘combined tendi’, or great council, which met to settle conflicts between two or more [25] lakalinyerar, as the smaller tribal groupings were described. By the 1870s, however, much of this tribal structure, and the organisation which went with this, was heading for extinction. Some of the smaller tribal groupings had already disappeared. The last combined tendi seems to have been held in the early 1870s.
More and more, official policies leant to isolating the Aboriginals from the mainstream of European life, placing them on reservations until, in the course of time, as anthropologists and others were predicting, the Aboriginal race in South Australia, as elsewhere on the continent, would quietly disappear. In 1911, the South Australian parliament enacted an Aborigines Act which sought to deal broadly with their situation for the first time. It was to provide much of the substance of the law on the treatment of the Aboriginals through until the second half of the twentieth century. The enactment was not limited to full blooded Aboriginals but extended as well to persons of mixed blood. Essentially, the Aboriginals as so defined could be prohibited from entering towns at the dictates of government officials. An officer of the government was to be appointed as the legal guardian of all Aboriginals under the age of twenty-one years, empowered to regulate the lives of Aboriginal minors whatever the aspirations and feelings of their natural parents might be. Provision was also made for restricting Aboriginals to designated reserves, places where they could be kept segregated from European communities.
The paternalism of the 1911 legislators was mostly well-intentioned. The consequence of their law-making, however, was openly to deprive the Aboriginals of equality under the law, and make them formally second-class citizens who could not be regarded as sufficiently trustworthy to conduct their own affairs within the framework of European society or even within their own tribal communities. There was the potential for benign despotism, and worse, in the way that Aboriginal children were subject to the control of European officials. There were noteworthy elements of racial segregation in the way Aboriginals could be excluded from the precincts of European towns and be forced to remain on specified reservations. The 1911 Act formalised a situation which had long been taking root in South Australia, transposing the ideals of men like Glenelg into a situation for the Aboriginals which could rob them of their human dignity, and remove the underpinning of their traditional way of life and its laws, while providing them with no effective substitutes in return. With some modifications down the years, the legislation of 1911 remained as the foundation for the regulation of Aboriginal affairs until 1962.
The repeal of the legislation in 1962 was a significant step, taken cautiously, towards removing the basic forms of discrimination which [27] had been imposed upon the Aboriginals for many decades. Most Aboriginals were now to be treated equally with Europeans, except for those still living in remoter places in tribal situations. As a mark of changing times the minister who brought the bill into the parliament acknowledged that in their original state the Aboriginals ‘were a well ordered and strictly governed society’. He stated frankly that Aboriginal law, so long neglected or ignored by Europeans, had been ‘highly developed and rigorously enforced’. Ten years later, these processes were carried to conclusion when the remaining special legislation for the Aboriginals was repealed and the functions of a separate government department which had dealt with them were merged into a new body called the department of community welfare. On this occasion, the minister who introduced the bill affirmed strongly that the government was ‘insistent that there should be no discrimination of the services against any ethnic or cultural group’. The alterations to the law, as the minister expressed it, were ‘designed to emphasise that Aboriginal and non Aboriginal people are fellow citizens of the same community with the same rights and obligations’.
The enactment of these laws, with important measures of bipartisan support in the legislature, were only one aspect, however, of revisionary thinking in South Australia on the treatment of Aboriginals in the State. Don Dunstan, a Premier with a passionate concern for redressing what he considered to be the historical wrongs perpetrated against the Aboriginals, was instrumental in having legislation passed in parliament which outlawed racial discrimination. In 1966 he also played a prominent role in the establishment of an aboriginal lands trust. This, as he told the House of Assembly, would enable some atonement to be made for the way Aboriginal lands had been seized forcibly from the first days of European settlement. Under this legislation Aboriginals were enabled to take charge of land in the State and control it in their own interests. Then, in 1980, an historical agreement on land rights was signed by a later Premier, David Tonkin, and Pantju Thompson, representing the Pitjantjatjara Council, a body comprised of Aboriginal peoples located in the north-west of the State. This opened the way for new legislation which gave the Pitjantjatjara people authority to exercise broad powers over their traditional lands. The Act was far-reaching in its import, as Tonkin described it in parliament. It enabled the Pitjantjatjara to exclude others from their territory and to order their own way of life within the specially designated region. This was followed in 1984 with similar legislation which extended the same authority to other Aboriginals in the far west of South Australia. Side by side with this, the parliament formally recognised that Aboriginal sacred sites and tribal artefacts required special protection under State law.
[28] The recognition of Aboriginal rights like this could not turn back the pages of history, nor remove the dire consequences which had followed the seizure of tribal lands in the nineteenth century, nor alter the manner in which the Aboriginals had been treated under European laws from 1836 until well into the twentieth century. In a belated fashion, however, there was official recognition that from the beginning of European settlement the Aboriginals had been peoples with their own distinctive way of life, owning land collectively and governing their relationships with laws which were peculiarly suited to their circumstances but no less deserving of recognition than those which had ordered the condition of European nations down the centuries. For the Aboriginals who remained, the legislation provided new opportunities for those who wished to follow the traditional life of their people.
In recent years, even the courts of the State have given their own forms of recognition to Aboriginal law. In 1976, for example, a judge of the Supreme Court, the State’s highest court, determined that an Aboriginal convicted of an offence against another Aboriginal should be sent back to his home territory to be subjected to a traditional punishment prescribed by Aboriginal law, rather than being dealt with in some other legally prescribed way. This set a precedent which could not lightly be ignored. Magistrates, too, in dealing with Aboriginals arraigned before them began to show a disposition to take into account Aboriginal traditions and tribal law in some circumstances. The wheels of history can be slow-moving; the errors and the misunderstandings of the past cannot he erased without trace. Nevertheless, in South Australia at least, Aboriginal law and the way of life which encompassed it, still remains as a living, sometimes vibrant force, as it was when the first Europeans made their way to the Bass strait islands and then occupied the mainland under the aegis of British authority in 1836.

B. Select Bibliography on Individual Chapters

Chapter I
Cassidy, The Conquered Continent: The Distinction between Settled and Conquered Colonies and its Relevance to the Status and Rights of the Indigenous Peoples of Australia, University of Adelaide, honours LL.B. thesis, 1986;
Cumpston, Kangaroo Island 1800-1836, undated;
Castles, ‘the Aborigines and European Law’, chap. 18 in Australian Legal History, op. cit;
Gibbs, ‘Relations Between the Aboriginal Inhabitants and the First South Australian Colonists’, Proceedings of the Royal Geographical Society of South Australia, vol. 61;
Hassell, Relations Between the Settlers and Aborigines in South Australia, 1966 (reprint of university of Adelaide thesis, 1927);
Jenkin, Conquest of the Ngarrindjeri, 1979;
Lendrum, ‘the Coorong Massacre: Martial Law and the Aborigines at First Settlement’, (1977) 6 Adelaide Law Review pp. 26-43;
O’Halloran’s Journal, South Australian archives, 706;
Oldham, Land Policy of South Australia. From 1830 to 1842, 1917;
Osterstock, Story of Kangaroo Island, 1975 (revised format), reprint 1977;
British Parliamentary Papers Relative to the Affairs of the South Australian Aborigines, (Irish Universities Press) op. cit. supra, reprint, vol. 32;
Powell, Far Country. A Short History of the Northern Territory, 1982;
Report on the Select Committee of the Legislative Council on Aboriginals, South Australian parliamentary papers, no. 165 1860;
Taplin, The Ngarrindjeri, 1873, reprinted in Woods, Native Tribes of South Australia, 1879;
Tolmer, Reminiscences, 2 vols, 1882;
Fischer, ‘the South Australian Colonization Act’ (l 966) 2 Adelaide Law Review pp. 360-372.


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