Principles of Law
The authoritative Hague’s History of the Law in South Australia 1837 – 1867 makes the point that Eyre was the only Resident Magistrate outside Adelaide for much of his tenure there, the equivalent position in Port Lincoln having ceased. Eyre’s experience of having to apply the law to bush Aborigines was therefore unique at that time. Consequently, Ralph Hague quotes Eyre at length regarding the problems that arose.
As described in the book, Eyre’s agitating was one influence that brought about Act No. 8 of 1844, which allowed Aboriginal testimony in court, although convictions needed in addition to be supported by independent evidence, much as is the situation in practice today.
Eyre struggled with a deep ethical problem, one shared by Judge Cooper, Grey, Sturt and other influential Australians of the day. They believed the Christian model that white and black alike shared a unique inheritance basic to all humanity, of being formed in the image of God. Therefore certain behaviours were universally good, and other were universally bad and needed to be controlled by laws if society was to function at its best. They admitted that cultural norms could lead people along different paths providing the issues were minor, but believed that deep down it was built into all people to reject more serious “degrading” behaviours such as the sexual abuse of children, murder for personal gain, rape, physical abuse of the weak by the strong and other crimes “heinous to all humanity”. They believed that all persons at a young age possessed a conscience that would be pricked by this basket of serious antisocial behaviours, even if later choices or teaching by adults erased this conscience from them. Because of this fundamental view, these men believed that fair laws were universally good and could be applied beneficially across all societies, the indigenous as well as the white. Today’s development of International Law might be seen to support their premise; however, this is based more of the concept of a shared humanity than a common creator.
In practice, Eyre attempted to apply the law equally to the colonials and the indigenous population, hoping to develop a model law-abiding community. In the process he became locked in a David and Goliath struggle, trying to prevent the success of the settler from damaging the lives of the Aborigines on whose lands he was settling, while attempting in turn to persuade the Aborigines to embrace colonial law for their own protection. This tension caused him to emphasise the need for even-handed legislation.
I am equally convinced that all one-sided legislation, all measures having reference solely to the natives, must fail. The complete want of success attending the protecting system, and all other past measures, clearly shows that unless the interests of the two classes can be so interwoven and combined, that both may prosper together; no real good can be hoped for from our best efforts.
Why not allow the Aborigines nowadays to apply their own system of tribal law in more minor cultural issues? This has been trialled in certain areas, but it is fraught with difficulties. For example, it would work best if Aboriginal society were a unified block with a single set of standards. However, it never was and each tribe had its own culture, laws and dialect. To further confuse the issue, it is now rather a polyglot society sharing similar space, for example the Aboriginal communities are often of mixed tribal backgrounds. It is hard to escape the practicality of a single system of law for all Australians being the best solution. However, in the development of Australian law, the indigenous people should have a far greater input in order that it can become a better servant for them also.
And allowing separate Aboriginal law provides a dangerous precedent. Next the Muslims might demand Sharia law and the other minority groups similarly. (Mind you, it is an accepted step in Muslim strategy to gain power in a country to demand Sharia law, so that is a weak example as it will happen anyway – but separate indigenous law would provide a powerful case in point for them and other minority groups to appeal to.)
A disunited nation would be the outcome of allowing parallel systems of law to function.
Ultimately the test must be – will proposed legal changes engender a more unified, caring Australian community, or will they encourage splintering into dangerous and divisive factions?