The limits of jurisdiction: law, governance and Indigenous peoples in colonized Australia

Abstract

In the case of The King v Jack Congo Murrell (1836) the NSW Supreme Court determined that the 'aboriginal natives of this colony are amenable to the laws of the Colony for offences committed within it against the persons of each other'. While this settled the question of jurisdiction the amenability of Indigenous people in the Australian colonies to criminal law remained a problem of policing choices, as well as prosecutorial and judicial discretion. 150 years after Murrell law reformers in a succeeding state, the Australian Commonwealth, revitalised debate over the recognition of a body of 'customary law'. In subsequent decades the scope and claims of 'customary law' have remained contentious, for some holding out the promise of a role in reconstitution of Indigenous communities, for others being only a reminder of the need for a completion of a transition to a state of civilisation. This paper will examine the construction of customary law as a body of knowledge (or more properly a set of presumptions) that constitutes changing policy in the government of Aboriginal lives, in legal, policing and bureaucratic domains. Drawing on historical evidence from the adjacent jurisdictions of Queensland and the Northern Territory it considers the extent to which policing and legal processes continued to distinguish Aboriginal subjects as less than amenable to criminal law. It thus examines the implications for the lives of Indigenous people of the continuing ambiguities of their status at law in spite of their standing as British and later Australian subjects.