Application of criminal law to Aboriginal people 1788-1837
Following the arrival of the British in 1788, English criminal law was imposed across the colony, although it was initially unclear whether it applied to Aboriginal people. Over time, Aboriginal people were subject to English law overriding and not recognising long-standing Aboriginal legal systems.
Before the arrival of the British, Aboriginal people lived under established systems of law, culture, and governance. Commonly known as ‘customary law’, this regulated many aspects of daily life, including social behaviours, relationships, land management, and conflict resolution. Aboriginal groups had different laws and practices, with distinct methods for maintaining order, addressing disputes, and enforcing sanctions, all deeply rooted in cultural knowledge and spiritual beliefs (, , ).
After 1788, a new legal regime based on English common law was applied by the colonial government (), and English criminal law was generally treated as applying to the colony (, , , ). However, it took decades to resolve the extent to which the law applied to Aboriginal people.
The process of colonisation had a profound and devastating impact on Aboriginal people, their way of life, and their systems of law.
Particularly in the early decades of the colony, military officers and settlers took punishment into their own hands. This appears to have been in line with views expressed by some Government officials at the time.
For example, during a case heard in 1799, witnesses referred to a prior incident where Governor Hunter said he did not have authority to punish an Aboriginal boy accused of spearing a white man and that he should have been punished ‘on the spot’ ().
Similarly, in 1805, Judge Advocate Atkins gave the legal opinion 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’ (). (See SUB0555 for more information about the legal system during the frontier wars).
Macquarie’s 1816 proclamation
On 4 May 1816, following a series of violent conflicts between settlers and Aboriginal groups, Governor Lachlan Macquarie issued an official statement directed at Aboriginal people (). The proclamation imposed a range of ‘Rules, Orders and Regulations to be observed by the Natives, and rigidly enforced’, but was unclear as to whether Aboriginal people were considered British subjects under English criminal law, entitled to its protection ().
Governor Macquarie’s proclamation offered Aboriginal people legal protection only if they behaved peacefully and applied for a special passport from the Governor. This treated legal protection for Aboriginal people as a privilege, not a right, to be granted or denied at the Governor’s discretion ().
Macquarie’s statement was also the first explicit regulation of Aboriginal traditional practices, prohibiting Aboriginal people from carrying any spears and carrying out punishments at or near Sydney or other settlements, stating that such practices were repugnant to British laws ().
Prosecution of Aboriginal People
The court’s view of whether Aboriginal people could be tried in a court under English law changed over time. In 1816, an Aboriginal man who had been adopted by settlers as a child, Daniel Mow-watty, was tried and found guilty of rape (). This is the first recorded case of an Aboriginal person being convicted in a court under English law.
In R v Boatman (1832), two Aboriginal men were accused of stealing sheep. The court said that English law did apply to Aboriginal people accused of crimes against white people’s property, but that the men were not able to understand the law and therefore could not be tried by the court ().
In his 1835 guide to the role of magistrates, Solicitor-General John Plunkett provided that Aboriginal people were protected by the law, but also ‘amenable to its rules and liable to
its punishments’ ().
Acts between Aboriginal people
In 1829 the New South Wales Supreme Court in R v Ballard (or Barrett) () advised the Attorney-General that it would be unjust and impracticable to apply English criminal law to the killing of an Aboriginal person by another Aboriginal person (). Chief Justice Forbes said that it was the policy of the courts and the government not to interfere in the ‘quarrels’ between Aboriginal people.
Justice Dowling held that ‘We have a right to subject them to our laws if they injure us, but I know of no right possessed by us, of interfering where their disputes or acts, are confined to themselves, and affect them only’ ().
In 1836 this decision was overturned by the New South Wales Supreme Court in R v Jack Congo Murrell (, ). Mr Murrell was accused of murdering another Aboriginal person and the Court agreed that it could hear the case.
Mr Murrell’s lawyer argued that Aboriginal people continued to be governed by their own laws and were not British subjects, so were ‘not bound by laws which offer them no protection’.
This argument was rejected by the Court, and it was held that Mr Murrell would have been ‘answerable’ had the offence ‘been committed on a white’ and that ‘serious cases might arise if these people were allowed to murder one another with impunity’ (, ).
Despite this, in 1837, the British House of Commons Select Committee on Aborigines said that requiring Aboriginal people to observe the British law ‘…would be absurd, and to punish their non-observance of them by severe penalties would be palpably unjust’ ().
The issue was settled later that same year, with the Colonial Office directing the Governor of New South Wales to ensure that all Aboriginal people within his jurisdiction be treated as British subjects (). It was also emphasised that Aboriginal people be taught that English criminal laws superseded Aboriginal customary law ().