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

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Title The limits of jurisdiction: law, governance and Indigenous peoples in colonized Australia
Author Finnane, Mark
Book Title Law and Politics in British Colonial Thought: Transpositions of Empire
Editor Shaunnagh Dorsett and Ian Hunter
Year Published 2010
Place of publication United States
Publisher Palgrave Macmillan
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.
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Copyright Statement Copyright 2010 Palgrave Macmillan.This extract is taken from the author's original manuscript and has not been edited. The definitive version of this piece may be found in Law and Politics in British Colonial Thought edited by Shaunnagh Dorsett and Ian Hunter which can be accessed from
Edition First
Chapter Number 8
Page from 149
Page to 168
ISBN 9780230104556
Date Accessioned 2011-02-09
Language en_AU
Research Centre ARC Centre of Excellence in Policing and Security
Faculty Arts, Education and Law
Subject Aboriginal and Torres Strait Islander History; Australian History (excl Aboriginal and Torres Strait Islander History); Law and Society
Publication Type Book Chapters
Publication Type Code b1

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