Aboriginal violence and state response: histories, policies and legacies in Queensland 1860-1940.

• Jurisdiction: Australia
• Date: 01 August 2010
• Author: Finnane, Mark

During the long era of 'protection' (enacted in 1897, flourishing in the interwar years and with effects continuing to this day) policy towards Australian Indigenous people suspected of interpersonal violence was ambiguous in its objectives and its means. Formally, Indigenous peoples in Australia were British subjects entitled to the full protection of the law. As a consequence, violence between Indigenous people was made visible through the conduct of inquests, police inquiries and, in many cases, subsequent arrest and charge with a criminal offence. Disposal of those charged or even suspected of crimes reflects tension between the universalising presumptions of the criminal law and the particularising effects of welfare regimes that ruled the lives of Indigenous people. Drawing on archives of inquests, courts and prisons in the Queensland jurisdiction before 1940, this article examines the policies and decision-making that characterised a state that remained determinedly colonial in its practices and ambitions. In conclusion, we consider briefly the question of how distinctive or how representative was Queensland practice as a state response to Indigenous violence during these decades of colonial subordination.

Keywords: Australia, Indigenous peoples, Aborigines, criminal law, history, Queensland

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Debate over Indigenous violence reflects Australia's contemporary condition as a diverse immigrant society still coming to terms with the reality of a prior and continuing Indigenous claim over the land. This reality is reflected in the intensity of debate around the topic of Indigenous violence affecting women, children and the security of families and communities, in a literature of advocacy (Kimm, 2004; Langton, 2008), in the national media and political debate (Altman & Hinkson, 2007; Jarrett, 2009; Nowra, 2007; Windschuttle, 2002) and across a range of academic research and discourse (Cowlishaw, 2004; Cunneen, 2001; Memmott, 2001; Sutton, 2001). Through the account offered below we intend to build an understanding of Indigenous violence and responses to it that is not simply reductive--that is, does not explain what happened only in terms of the impact and survival of colonialism, or (as in other accounts nowadays) does not attribute a current state of affairs to the alleged inherent violence of Indigenous culture.

Our evidence is the long historical record of inquiries into the circumstances of Aboriginal deaths in Queensland, the basis of an 'Inter se database', which we describe later and which provides a ground from which to explore the social pathologies affecting Aboriginal communities after the frontier. Our previous research into inquest records suggests that after the decades of frontier conflict it was rare for an Aboriginal person to be accused or suspected of being the assailant in a violent incident resulting in death of a non-Aboriginal person (Finnane & Richards, 2004). In Queensland after the 1870s, Aborigines as victims or assailants in violent incidents were most likely to be involved in a struggle within their own kin or community. In spite of the great deal of attention paid to the interracial dimensions of late 19th century violence (Banivanua-Mar, 2007; Wiener, 2009), then and now the little acknowledged story was one of intraracial violence (Broadhurst, 2002; Sutton, 2009).

The degree of heat exhibited in intellectual and political discourse is arguably not limited to the last decade or even the last three decades, but is a characteristic of repeated unsettling discourse about the condition and future of Indigenous people in Australia since European settlement in 1788 (Atkinson, 1997; Boyce, 2008; Karskens, 2009; Reynolds, 1998). At the heart of that discourse has been a contest over the status of Indigenous violence as a marker either of tribalism and barbarity, or as a sign of the impact of colonialism (Blainey, 1976; Clendinnen, 2003; Hiatt, 1996; Povinelli, 2002). In this article we do not want to rehearse or review debates that are at the point of exhaustion about the reality of frontier violence or the violence of dispossession. The evidence of violence is overwhelming, the need to recognise the violent nature of Australian settlement compelling (Foster et al., 2001; Foster & Attwood, 2003; Manne, 2003; Nettelbeck & Foster, 2007; Richards, 2008).

But what happened to Aboriginal people in the aftermath of the frontier, between dispossession and the contemporary era of putative citizenship, policies of self-determination and the politics of affirmation and autonomy? The story for more than a decade has been dominated by the experience of the 'Stolen Generation', the people removed from their families and communities under welfare and assimilationist policies whose motivations and practices remain controversially contested (Haebich, 2000; Moses, 2004). Other stories have also emphasised the struggle for survival, the constitution of new senses of Aboriginal society and community, the emergence of claims to land and land rights in the interstices of a society that has to be characterised as neo-colonial (Attwood, 1989, 1994; Goodall, 1996; Huggins et al., 1995; McGrath, 1987; Rowse, 1996).

Little attention has been paid in these histories of the period after the frontier to the realities of violence and crime within Indigenous communities. In this respect, Australian scholars reproduce the reluctance of other settler society researchers to delve too far into histories that complicate the more readily addressed history of interracial conflict. Recent work on American homicide goes some way to redress that reluctance, with Roth (2009, pp. 104-6, 371-2) in particular noting the very high rates of intraracial homicide among Native Americans during the extension of the American frontiers in the 18th and 19th centuries.

While historians have sometimes noted the evidence of Aboriginal intraracial violence in colonial times (see especially Broome, 2005; Nance, 1981) there has been little attempt to explore its significance as a factor in the development of criminal justice or other systems of government administration, a contentious literature feeding off anthropological evidence has emerged in recent years, reinstalling images of the violence of 'traditional' Aboriginal communities (most recently Jarrett, 2009). More nuanced debate about the status of this evidence has, nevertheless, reinforced the picture of violent practices, ritualistic or otherwise, which characterised aspects of Aboriginal life before and after contact (Cowlishaw, 2004; Flood, 2006; Povinelli, 2002; Rose, 1991; Sutton, 2001). After the frontier, however, there is largely silence about the stories of violence that lie behind the imprisonment of large numbers of Aboriginal men in Australian prisons before the 1960s.

It is the story of imprisonment that tended to dominate the limited analysis of Aboriginal experience of the criminal justice system until quite recently. The disproportionate increase in Aboriginal imprisonment (involving both men and women) from the 1960s was a story around which decisions, policies and practices of the dominant White society could be quite justifiably analysed, criticised and reviewed. These were, after all, matters of state responsibility in which public accountability and resources were at stake and national reputation in question. The conditions that underlay the production before courts of large numbers of Aboriginal men were less addressed, though never quite out of focus. Path-breaking studies by Eggleston (1976) and Gale (1972) drew on their field work in South Australia, Western Australia and Victoria in the 1960s during the period of increasing incarceration of Aboriginal people. Their sober picture of social disadvantage during the transition from protection to citizenship was shockingly supplemented by Wilson in 1982 in a study that mapped the deterioration of the social condition of Queensland Aboriginal communities on the reserves and missions, which had been long dominated by the state's Department of Native Affairs, and before that by the Chief Protector of Aborigines (Wilson, 1982).

In the only study ever to estimate the longitudinal characteristics of the prison population with respect to Aboriginality, Broadhurst (1987) showed a rapid rise of Aboriginal incarceration in Western Australia from 1965. What he did not directly address was the disproportionate share of the state's imprisoned population made up of Aboriginal people before that date, notably among women (more than half the 'daily muster' from 1957 to 1965) but also evident among men (12 to 18% across these same years). In going behind the data, Broadhurst also pointed to the seriousness of much of the offending: parenthetically he noted that 'the great majority of violent Aboriginal crime is intra racial'. Broadhurst's study was not concerned directly with that question but his conclusion reinforced the point: 'the continued characterising of, and over-emphasis on, Aboriginal offending as minor, trivial and a social nuisance masks the very serious rates of aggressive and harmful crime among Aborigines and the need to assist Aboriginal communities to assist themselves' (Broadhurst, 1987, pp. 189, 180). His observation is consistent with the more recent insistence of Weatherburn and colleagues on the contribution of serious criminal offending to high incarceration rates (Snowball & Weatherburn, 2007).

As this discussion implies, the critical issues of high rates of imprisonment and high rates of Indigenous violence demand a richer historical contextualisation (Broadhurst, 1997; Finnane & McGuire, 2001; Hogg, 2001; McGrath, 1993; Thomas & Stewart). Working from very scattered data we show below that it is nevertheless possible to build up an account of the contexts of Aboriginal violence and of responses to it in an Australian jurisdiction that has a sorry record of race relations and...