The 'birth of the prison' and the death of convictism : the operation of the law in pre-separation Queensland 1839 to 1859

Connors, Libby (1990). The 'birth of the prison' and the death of convictism : the operation of the law in pre-separation Queensland 1839 to 1859 PhD Thesis, School of History, Philosophy, Religion, and Classics, The University of Queensland.

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Author Connors, Libby
Thesis Title The 'birth of the prison' and the death of convictism : the operation of the law in pre-separation Queensland 1839 to 1859
School, Centre or Institute School of History, Philosophy, Religion, and Classics
Institution The University of Queensland
Publication date 1990
Thesis type PhD Thesis
Total pages 381
Language eng
Subjects 940403 Criminal Justice
180110 Criminal Law and Procedure
Formatted abstract British historians have argued that the decades 1780 to 1850 were marked by a radical transformation of criminal justice. These decades coincide with the first phase of British colonisation and transportation to eastern Australia. This thesis is an analysis of the operation of the criminal justice system in the decades of the 1840s and 1850s in the regions of pre-separation Queensland.

The central tenet of this thesis is that at least two models of criminal justice co-existed in the regions of pre-separation Queensland. It was not simply a matter of applying British reforms in the colonies. Legal reforms were delayed owing to the convict nature of early New South Wales; but the greatest obstacle to new legal practices was the hostility engendered by northern race relations.

Historiographical issues concerning the changes in British criminal justice in the crucial decades of the 1780s to the 1850s are briefly introduced in order to show how these debates affect the interpretation of convictism in early New South Wales.

The most visible and the most dramatic change to the criminal justice system was the method of punishment in which public floggings, convict labour and public executions were replaced by incarceration in a new, closed, regimented institution, the modern prison. The penal colony of Moreton Bay in the years before 1839 was clearly part of the earlier model of punishment and it is contrasted with the changes of the succeeding decades. The transition to incarceration as the main form of punishment was not without resistance, but it was Aboriginal offenders who were consciously excluded from the reach of reforms. As far as Aborigines were concerned, the function of official punishment was not to penalise the individual but to use exemplary punishment to deter the indigenous population generally.

The difference in the treatment of white and black offenders was even more accentuated in the area of policing. The first measures for police reform were introduced in the late 1840s. The intention was to establish bureaucratic control over the police and introduce constant systematic patrolling both in the towns and on the frontier. In both regions the new practices met with resistance. The town police were returned to magisterial control in 1853 but modern practices did continue in certain areas. On the frontier however, the northern settlers waged a fierce campaign over the nature and control of policing. The Native Police Force never lived up to its initial liberal expectations. In the years after 1855 the northern settlers exerted considerable influence over its operations and its function was one of terror, intimidation and harassment of the Aboriginal population. This was done indiscriminately - the very opposite of the liberal ideal of ensuring submission to the law because of its even application and the certainty of individual apprehension. When the Native Police Force was at its strongest, the rate of apprehension of Aborigines was actually low. By the end of the 1850s the differences between the policing of the European population and the Aboriginal population were fundamental.

The problems of distance and the rapidly expanding frontier which hindered effective policing also affected the ability to prosecute. Residents in the north demanded access to the law as a right and were prepared to use the courts despite dissatisfaction over the class bias of the magistracy. Control of the magisterial bench gave the squattocracy enormous class power in this period. With the establishment of circuit courts and later a resident judge, the occasional appointment of paid police magistrates and the growth of the provincial press, the public were able to secure limits to magisterial behaviour. But in this area, too, the benefits of these developments did not extend to the Aboriginal population. Despite the rhetoric of equality before the law, the courts repeatedly failed to offer protection to the Aboriginal population of the northern regions.

What emerges from this study of the law is that the years 1839 to 1859 were crucial in the transition from penal colony to self-governing colony. They were marked by the transformation of the convict to the prisoner and the convict constable to the modern policeman - examples of modernisation which reflected British developments and were not unique. What was distinctive about the development of modern legal structures in pre-colonial Queensland was the exclusion of Aborigines. By 1860 the new colony of Queensland could claim a modernised system of criminal justice but, in contradiction of its own terms, it was not applied uniformly. Many aspects of the criminal justice system's treatment of the Aboriginal population were reminiscent of the earlier deterrence model. The white community accepted contradictory and illegal practices with regard to the blacks at the same time as they proclaimed their own cherished rights as British subjects.
Keyword Criminal justice, Administration of -- Queensland -- History.
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