Amenable to the Law
When settlers invaded Aboriginal lands in the place Captain Cook had called New South Wales (NSW), they were not equipped with ready-made instruments of law to assimilate the peoples they were displacing. Nor did they need them. Law belonged to a time after force had done its work (Attwood, 2004). It took nearly 50 years from the landing of convicts at Sydney in 1788 before a colonial court would determine finally that the law would apply to Aborigines in NSW in the cases of offences among themselves. As we have noted in the previous chapter, this meant that the same kind of resolution of law’s uncertainty in the face of vast cultural difference took place in parts of the Australian continent within the same few years, namely the 1830s and 1840s. These also were years in which the consolidation of common law jurisdiction was determined in other settler societies (Harring, 1998; McHugh, 2004; Ward, 2006; Dorsett, 2009; Ford, 2010; Pope, 2011). In that moment what became Australian law was British law — the common law exercised in the colonial courts, under the watchful and often critical eye of the Colonial Office at the heart of empire. What the resolution of colonial jurisdiction meant for the administration of criminal justice remained unclear for some time, even a long time in many places.
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