The legal system 1803-1832

Colonial Office Instructions on treatment of natives

From 1788, when the First Fleet arrived in Port Jackson to set up a penal colony for convicts sentenced to transportation, governors and lieutenant governors had quite specific instructions on how they were to interact with the native population.

The draft Instructions issued to Governor Phillip on 25 April 1787 specified that he was:

… to endeavour by every possible means to open an intercourse with the natives and to conciliate their affections, enjoining all our subjects to live in amity and kindness with them; and if any of our subjects shall wantonly destroy them, or give them an unnecessary interruption in the exercise of their several occupations, it is our will and pleasure that you do cause such offenders to be brought to punishment according to the degree of the offence.

Similar instructions were given to Lieutenant Governor Collins on 7 February 1803 when he sailed for Port Phillip, and then on to Hobart to take over the administration of the newly claimed territory of Van Diemen’s Land from Lieutenant John Bowen.

Lieutenant Governors from Collins to Sorell

The first serious confrontation with the local aborigines was at Risdon Cove on 3 May 1804, when a number of aboriginals were killed by a group soldiers under the command of Lieutenant Moore. The incident was recorded by the Rev Knopwood in his diary and Lieutenant Moore gave a report to Collins who then reported to Governor King about the incident stating “Not having been present myself, I must take it for granted that the measures which were pursued were unavoidable.” It was later established that the aboriginals were simply engaging in a kangaroo hunt to provide themselves with food. It would seem no action was taken against the solders.

Following this early confrontation, both Collins, in the south, and Paterson, in the north, issued general orders urging the settlers to establish friendly relations with the natives and warning them that the aboriginal inhabitants were under the protection of the British law, and that acts of violence against them would be punished.

Following the death of Collins in 1810, the three subsequent lieutenant governors of Van Diemen’s Land continued to exhort the settlers to behave humanely towards the aborigines. These requests largely fell on deaf ears with Thomas Davey writing:

… he could not have believed that British subjects would have so ignominiously stained the honour of their country and themselves as to have acted in the manner they did towards the aborigines.

and William Sorell frequently found it necessary to issue proclamations because of “cruelties [that] have been perpetrated upon the aborigines repugnant to humanity, and disgraceful to the British character”, declaring:

The Lieutenant-Governor thus publicly declares his determination that if, after the promulgation of this publication, any person or persons shall be charged with killing, firing at, or committing any act of outrage or aggression on the native people, the offender or offenders shall be sent to Port Jackson to take their trial before the Criminal Court.

Such proclamations were, however, of no avail while convict stockmen, shepherds, and bushrangers, themselves the product of a brutal punishment regime, continued in the words of historian James Bonwick, to:

… indulge a demoniacal propensity to torture the defenceless, and an insatiable lust, that heeded not the most pitiable appeals, nor halted in the execution of the most diabolical acts of cruelty to obtain its brutal gratification.

Lieutenant Governor Arthur’s dilemma

Arthur was shocked at the treatment of the aboriginal population by the settlers and his correspondence with the Colonial Office displays a genuine, albeit misguided, zeal to save the souls of the natives. He appears troubled when writing to his superiors on the condition of aboriginal people, declaring it “a fatal error in the first settlement of Van Diemen’s Land that a treaty was not entered into with the Natives” going on to say the Natives should have received compensation for territory surrendered. He claimed it would have been preferable if “adequate laws” had been introduced to protect them “from the very first” and “enforced for their protection”. Hampered as he was by a lack of legal authority to change the legal status of aborigines Arthur did, however, demonstrate more empathy for their suffering than did his mainland counterparts in their dealings with local aboriginal tribes.

Shortly after Arthur’s arrival in Hobart in 1824 a tribe of natives had appealed to him for protection, which was granted. They were able to establish a camp at Kangaroo Point on the Derwent River, living there untroubled for a couple of years, until one of their white neighbours committed a savage murder on a tribe member, which saw the whole tribe to disappear into the wilderness.

Throughout his 12-year administration Arthur was literally between a rock and a hard place. He was sympathetic to the plight of the natives, deploring the violence inflicted upon them, but was also dependent on retaining the good will of the Colonial Office for future career appointments. The Colonial Office, in contrast, reacted like a weather vane shifting position whichever way the wind was blowing: it had no problem with decreeing that aboriginals should be treated equally with white settlers, while at the same time encouraging free grants and then sales of land in the colony, resulting in the reduction of traditional hunting areas for the native population, which in turn put pressure on their food supply, causing an increase in raids on livestock owned by farmers.

Driven by the demands of white settlers, many of whom had the ear of influential officials in England, Arthur devised a scheme that would create two zones in the Island: the settled districts for whites and wilderness areas for natives. Little thought was given to the seasonal tribal journeys that were undertaken by the aboriginals and which in many cases now impinged on the artificial boundaries created by settlers fencing the land that had either been granted or sold to them. In theory aboriginal leaders could apply to landholders for permission to travel through farmland but, as with all of Arthur’s instructions on the humane treatment of the native population, the edict was ignored.

From the mid-1820s hostilities between settlers and aboriginals steadily escalated, until ordinary law was superseded by the declaration of martial law in 1828: this legal environment remained in place until 1832. In the initial proclamation Arthur decreed that, wherever possible, peaceful means had to be used and the use of firearms would only be justified when this failed; Europeans who failed to obey this dictate could be subject to trial and punishment. However despite Arthur’s repeated orders throughout the conflict about the circumstances in which deadly violence could be justified, no colonist was ever charged, or committed for trial, for assaulting or killing an aboriginal person.

In 1829 Arthur agreed with a proposal by George Frankland to use illustrated story boards to help explain that British laws applied equally to black and white.Nailed to trees and given to aboriginal groups they were yet another example of the mindset of colonial authorities: that the authority of British law was universal, and the use of this pictorial material would make that clear to the native inhabitants.

Other efforts by Arthur to resolve the conflict included offering bounties for the capture of aboriginals, the employment of George Augustus Robinson to carry out conciliarity missions and creating an Aborigines Committee to inquire into the origins of the hostility and make recommendations on how to stop the violence and destruction of property.

By the time martial law ceased in January 1832 the aboriginal population was in serious decline in Van Diemen’s Land (probably less than 1,000). Lyndall Ryan, Tasmanian Aborigines (2012), estimates that from November 1823 to August 1834 some 878 aboriginal people were killed and 201 settlers.

Their treatment exposed the hypocrisy of a legal system that could stipulate that the native population were to be regarded as British subjects, entitled to the rights of “freeborn” Englishmen and, at the same time, condone their being hunted down, arbitrarily exiled from their tribal lands, and dispossessed of their traditional way of life. There has been considerable discussion by historians as to whether these events fall within the definition of genocide. Historians like Robert Hughes, and James Boyce believe it was, while Henry Reynolds is of the opinion that Arthur’s focus was on using the land for profitable purposes that would benefit the colony and the British government and not the destruction of the aboriginal people.

Sir George Murray, in a letter to Arthur in 1830, warned that the extinction of the aboriginal race would leave “an indelible stain upon the character of the British Government”. Writing on the treatment of the aborigines in 1832, Arthur also acknowledged that their treatment in the colony was a “stain on the Colonisation of Van Diemen’s Land”.

What seems undeniable is that there were two irreconcilable sets of beliefs about the land. The Australian Museum’s The Land web pages describe the aboriginal relationship with the land as:

Changing it and changing with it. The land was not just soil or rocks or minerals, but a whole environment that sustains and is sustained, by people and culture.

To European eyes the land was terra nullius, belonging to no one, and the soil, the rocks and minerals were commodities to be used, bought and sold. That belief was to prevail until 3 June 1992, when the High Court of Australia decided that terra nullius should not have been applied to Australia. The judgment  recognised that Aboriginal and Torres Strait Islander peoples have rights to the land – rights that existed before the British arrived and can still exist today.


About dashea2014

A Law Librarian with extensive experience in general legal and court libraries. Editor of the Australian Law Librarian for 4.5 years (2008-2012) and active member of Law Libraries Tasmania. Special topics - Tasmanian legislation and case law. A passion for maintaining access to print resources.
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