In the early decades of NSW, a decentralised police system was in operation. Lay magistrates in rural areas controlled the police and had discretion to decide ‘what would and would not be policed.’[1] They used their power to protect their class interests and relied upon flogging to enforce order. The assistance of the military was necessary to quell large-scale disorder, but the military were not used for ordinary policing duties. Reflecting the characteristics of the population, most policemen were convicts. In 1823, J. T. Bigge, charged with making transportation more of a deterrent for English criminals, reported to the Colonial Office that police organisation was defective and recommended centralised control rather than retaining local control by unpaid magistrates.[2]
John Thomas Bigge, c1819
Because magistrates were unwilling to relinquish control of the police, a number of changes were made to weaken their power in 1825, creating a system of divided control. The mounted police, composed mainly of soldiers, were formed to deal with bushrangers and Aborigines. Captain F. N. Rossi became the head of the Sydney police, whose existence was made official by the Sydney Police Act of 1833, a statute based on the London Metropolitan Police Act of 1829. In the absence of local government, the Sydney police were required to assume a range of urban functions. Thus, in the 1820s and 1830s, police reform in NSW was a compromise between the English and Irish models, modified to meet the exigencies of a large convict population, the activities of bushrangers, the resistance of the Aborigines and a growing urban population.[3] In addition to the police, overseers, masters, and private informers ensured that the colonists enjoyed ‘a level of surveillance more akin to a penal colony than the society they knew in England.’[4]
Bigge’s report influenced thinking about police arrangements in VDL, the second Australian penal colony, far more than in New South Wales. Governor George Arthur created a more highly centralised policing system and controlled the police, mainly comprised of convicts, through paid magistrates, responsible directly to him. He saw himself as the servant of empire, answerable only to the British government and not local colonists and became the foremost supporter of the benefits of transportation. [5] Feeling that a penal colony was ‘an unnatural condition’ because ‘virtue’ was subordinate to ‘crime’, Arthur believed he had no choice but to rule the colony as a jail. His police reforms and their operation made VDL a more intensively policed society than NSW.
Making order his aim, Arthur expected colonists to forgo their rights and liberties in the interests of making transportation a feared punishment and in exchange for the security of person and property that he provided.[6] The majority of colonists, especially those in the interior, resigned themselves to this policy and were constrained to obey his commands for two reasons.[7] First, they appreciated the security, funded not by local taxes but by the Crown that Arthur provided after years of anarchy. Secondly, given the shortage of free labourers, they feared losing the cheap convict labour that Arthur could withdraw whenever he liked. But those colonists who did not rely on convict servants for their wealth or who had fallen out with Arthur, mainly the residents of the colony’s capital Hobart Town, felt that the benefits of transportation were purchased at too high a price and became hostile to attacks on their liberty.[8]
Sir George Arthur
As its central aim was to strengthen the authority of the governor and enforce order, the rule of law as a protection of free citizens was compromised at all levels of the legal system in VDL. Under Arthur’s autocratic rule, the nominated Legislative Council, the judges of the Supreme Court, paid magistrates and the police generally placed the orderly management of the convict system ahead of rights and liberties. In the courts, colonists contested arbitrary uses of police power and employed the language of the rule of law when arguing for their rights or defending their liberties. But they realised that the paid magistrates gave prime consideration to convict order and discipline and supported police action unless the evidence clearly demonstrated they had acted illegally or arbitrarily.
Police work had an important bearing on whether in practice the rule of law could curb arbitrary power. Not only did the police threaten liberty by treating colonists unequally and unjustly, they also enforced the law, made ‘its orders meaningful’ and constituted its ‘coercive function’.[9] How did the public respond to the introduction of the ‘new police’ in the Australian colonies? Did the police encounter opposition at either an organisational or operational level and if so, by whom and what form did this opposition take? The papers in this section consider how the rule of law was established in Australia, the ways in which the law was enforced by the police in VDL, South Australia and Victoria and how the use of arbitrary power was resisted.
[1] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 163.
[2] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. 148-149.
[3] Ibid, King, Hazel, ‘Some Aspects of Police Administration in New South Wales, 1825-1851’, pp. 205-30; Sturma, Michael, ‘Policing the Criminal Frontier in Mid-Century Australia, Britain, and America’, in Finnane, Mark, (ed.), Policing in Australia: Historical Perspectives, (University of New South Wales Press), 1987, pp. 15-34; Finnane, Mark, Police and Government: Histories of Policing in Australia, (Oxford University Press), 1994, chapter 1.
[4] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 54.
[5] Report from the Select Committee on Transportation, Together with the Minutes of Evidence, Appendix, and Index, (Irish University Press), 1968, Vol. 2, Appendix, p. 2, Arthur to Howick, 18 February 1832; Chapman, Peter, ‘The Island Panopticon’, Historical Records of Australia: A Documentary Periodical, number 1, (1990), pp. 6-10.
[6] Giblin, R. W., The Early History of Tasmania, (Melbourne University Press), 1939, Vol. 2, p. 629.
[7] Forsyth, W. D., Governor Arthur’s Convict System: Van Diemen’s Land, 1824-36, (Sydney University Press), 1970, pp. 109, 126-129.
[8] Ibid, Report from the Select Committee on Transportation; together with Minutes of Evidence, Appendix, and Index, pp. 117, 225; West, John, The History of Tasmania, (Angus and Robertson), 1971, p. 122; ibid, Giblin R. W., The Early History of Tasmania, Vol. 2, pp. 420-421, 605.
[9] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 143.
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