As the colonial legal system developed in the early years of the New South Wales colony, its application to Aboriginal people was inconsistent. There were different approaches to the question of whether Aboriginal people could be tried under the law or were protected by the law.

At the time of colonisation, Aboriginal people lived within complex systems of law. The British recognised the existence of Aboriginal law and practices and, initially, the application of English law to Aboriginal people was unsettled (DOC5882, DOC5316, DOC6168, DOC6482).

As the lives of Aboriginal people and the colonists became more entwined, and as the colony grew, Governors and the courts began to consider how the law applied to Aboriginal people.

Colonial Legal System in NSW

When the colony was established in Sydney Cove in 1788, Britain directed that there should be courts of criminal and civil jurisdiction (DOC5946). The Court of Criminal Jurisdiction had the powers of equivalent courts in England, and could apply penalties that would be available in England, subject to the circumstances of the colony (DOC5946).

Governors had the power to appoint magistrates, who were also called Justices of the Peace (DOC1292).

Magistrates were stationed in different parts of the colony and had a wide range of powers and functions (DOC1292). These functions meant magistrates had significant power over the every day lives of people in the colony, as they included local government functions, law enforcement and trial of certain offences (DOC6628, DOC5943, DOC5879), as well as, for example, granting licenses for bakers, butchers or manufacturers of spirits or setting the price of bread (DOC6642).

Magistrates were appointed from among multiple backgrounds, including military officers, religious officials and eventually, former convicts (DOC6629, DOC6489).

Magistrates were often landholders with convict workers, and their power was often used in an arbitrary and unchecked manner (DOC6077 DOC6316 DOC6643 DOC5879)

Although the law of England applied in the colony, Governors could make orders and proclamations for local governance. Governors operated with high degree of legal autonomy because the colony was so far from Britain, although the extent of their power was the subject of debate.

The Governor was ‘commander in chief of the armed forces, chief magistrate, and civil authority within the colony’ (DOC5879, DOC1292). Governor Hunter, who became Governor of NSW in September 1795, observed that, following the departure of Governor Phillip in 1792, the colony had moved to military control, but that he had ‘reinstate[d] the civil magistrate’ (DOC6112).

During the frontier wars, Governors made many orders specifically about Aboriginal people. This included orders either allowing or prohibiting the use of violence against Aboriginal people and orders regulating the behaviour of Aboriginal people, usually governing where they could be. See SUB0194, SUB0533, SUB0534, SUB0548, SUB0250 and SUB0535 for examples of these orders.

Violence against Aboriginal people and the law

In this period of violence and conflict between white settlers and Aboriginal people, the King’s instructions to successive Governors were to bring justice to those who gave ‘unnecessary interruption’ or ‘wantonly destroy[ed]’ any Aboriginal person (DOC1058).

However, despite significant violence against Aboriginal people by British people, there were very few attempts to hold people legally responsible for violence against Aboriginal people. Where attempts made, they were often unsuccessful.

The case of R v Powell (1799) (DOC6208) was the first time white settlers were tried for committing violence against Aboriginal people. The five men accused of killing two Aboriginal boys said ‘it was generally understood that it was a standing order, or at least it was so issued from the Commanding Oﬃcer, to kill any of the natives found in their way.’

The men were found guilty but the Court could not agree on an appropriate punishment. Captain Waterhouse, one of the judges, said that he was in favour of corporal punishment and added ‘it is the first instance of such an oﬀence being brought before a criminal court and therefore the prisoners were not aware of the consequences of the law’ (DOC6208).

The case was referred to the King and the men went back to their farms (DOC3078).

In 1802, the King told the Governor to pardon the men, mostly because so much time had already passed, but directed that further violence against Aboriginal people be punished (DOC5874). The Governor issued a proclamation to this effect, saying that ‘His Majesty forbids any act of injustice or wanton cruelty to the natives’ (DOC2928).

Several other people were tried in court for violence against Aboriginal people, but found not guilty (DOC6480, DOC6481).

A convict, John Kirby, was the first person to be tried, convicted and executed for the murder of an Aboriginal person in 1820 (DOC6478, DOC6479).

It was not until 1827 that an officer was tried for the murder of an Aboriginal person, although he was found not guilty by an all-military jury. (DOC6316). See SUB0535 for information about the prosecution and execution of people responsible for the Myall Creek Massacre in 1838.

One of the barriers to people being prosecuted for violence against Aboriginal people was that Aboriginal people could not give evidence in court. See SUB0021 for more information about this.

Prosecution of Aboriginal people

There was also inconsistency about whether Aboriginal people could be prosecuted by colonial legal authorities for any acts of violence or theft, especially against non-Aboriginal people.

In the late 1790s, in the Hawkesbury, Lieutenant Thomas Hobbs sent an Aboriginal man named Charley to Governor Hunter when he was accused of spearing a white man, because Lieutenant Hobbs was not sure what action should be taken against an Aboriginal person accused of a crime. The details of this event were described during witness testimony in the unrelated case of R v Powell (1799) (DOC6208).

The Governor was reported to have said ‘it was not in his power to give orders for the hanging or the shooting of such ignorant creatures who could not be made sensible of what they might be guilty of, therefore could not be treated according to our laws.’ The Governor said that instead, in similar circumstances ‘immediate retaliation should be made on the spot’. Charley was sent back to Lieutenant Hobbs and released (DOC6208).

In 1805, Governor King, who became Governor of NSW in September 1800, asked Judge Advocate Atkins for his opinion on the best method to prevent ‘outrages’ committed by the Aboriginal people of the Hawkesbury (see SUB0534).

The Judge-Advocate’s opinion was that Aboriginal people could not be tried under English law. He said ‘the only mode at present, when they deserve it, is to pursue and inflict such punishment as they may merit’, which suggests acts of on-the-spot punishment outside of any legal processes (DOC0071). This approach was never formally adopted as law by any Governor, but demonstrates the legal opinions that existed at the time.

The law continued to develop on the question of whether Aboriginal people could be prosecuted, with the court taking inconsistent approaches. SUB0551 provides more information about the application of the criminal law to Aboriginal people in the colonial period.

'General Orders' Sydney Gazette and New South Wales Advertiser (4 January 1807), 1