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Law and order in colonial Australia

by Melissa Norris

(L-R) Lecturers David Plater and Sue Milne.From bushrangers and horses to guns and gambling, the modern media paints a vivid – and faulty – view of Australia’s colonial life and penal system in the early 19th century, according to the latest research from UniSA’s School of Law.

Lecturers David Plater and Sue Milne (pictured right) dug through state archives and the colonial newspapers to uncover fascinating untold stories of what punishment, the courts and the death penalty were like for those living in Australia between 1824 and 1860. This was a time of convicts, bushranging and Indigenous resistance to colonisation.

Their research suggests that despite the turbulence of colonial society, Australia’s early legal system was mature beyond its years.

“For a very young colony, it’s amazing – the political debate, the legal debate, the public debate – it’s all there, alive in the newspapers,” Milne said.

More than 300 crimes were punishable by death in England and Australia at the time, and most centred on the protection of property and livelihood.

While the most common crimes that incurred the death penalty were stealing from a dwelling and highway robbery, others included stealing a sheep, absconding from lawful custody, forgery and theft.

But despite the large number of convictions incurred, only 10 per cent of offenders in England convicted of capital crimes and sentenced to death were eventually hanged at the gallows. In Australia the figure was higher but even in the turbulent context of early colonial society, many offenders in Australia, even if convicted of crimes that were “beyond the pale”, were, nevertheless, spared the death penalty.

One of the main reasons for this was the prerogative of mercy, in which the monarch in Britain or the Governor and Executive Council in the Australian colonies pardoned the condemned prisoner based on a range of mitigating circumstances.

“In England, the grounds for awarding mercy commonly included that the offence was minor, the convict was of good character, and that the crime committed was not common enough to present an exemplary hanging,” Milne said. “However, in Australia, an array of factors were considered when looking to pardon those convicted of a capital offence.”

“They certainly worked through all the possible options to ameliorate the sentence, and they would usually specify the reasons that they took into account, including whether they were going to give a pardon.

“You could see that they were trying to do things correctly according to law, because they still regarded it as the ultimate punishment, and it was not something they took at all lightly. The prerogative of mercy was taken seriously in Australia.”

While Australia’s colonial laws were drawn directly from England at the time, the situation was different in New South Wales and Tasmania as most of the offenders were convicts who were already under a form of punishment.

“If you committed further offences in the colony as a convict you had to be resentenced, so for minor offences you might be whipped by your master or by the local magistrate,” Dr Plater said.

“However, if you committed any serious criminal offences, they had secondary places of punishment such as Norfolk Island, Port Arthur and Port Macquarie, and if you committed particularly heinous crimes or further offences as a convict, then you could be hanged.”

The hanging itself was meant to be a solemn ritual, held in public until the mid-1850s in the hope that the accused would acknowledge the guilt of what they had done and appeal to the crowd, deterring them from further crime.

But despite the hopes of the legal system of the day, deterrence at the gallows did not work, as hangings often became a public spectacle.

“We’ve read accounts that mothers would take along their children and the public would have bets on whether the accused would be spared before they were hanged, so people weren’t appreciating the solemn occasion that it was intended to be,” Dr Plater said.

Milne and Dr Plater’s research also debunks the clichéd myth of colonial history that is often portrayed by the entertainment industry.

Despite the glamorous depiction of bushrangers in the media, Dr Plater said the reality was a desperate, grim experience.

“Bushranging was regarded very seriously – most of them were either shot during arrest for resisting arrest, or they were hanged,” he said.

One notable media portrayal that has not changed since the early 1800s was the polarised view of women as saints or sinners.

“That’s how the modern media tend to portray women today – they’re either a victim of crime or as an offender they would either be demonised or cast as an unfortunate victim of circumstance, and that was certainly the way they’ve been portrayed in the cases we’ve been reading,” Milne said.

As for where they plan to develop their research, Dr Plater suggested following up on some of the sub-themes uncovered in the research.

“There is a lot more to Australia’s legal history than just Ned Kelly and the Eureka Stockade. It is a fascinating and until recently overlooked area of study,” he said.

“There is scope for lots of further research in many areas. For our project we’ve got the overall death penalty, but then for future research Sue and I want to look at the subcategories of offenders sentenced to death, particularly females and Indigenous accused.”