From 1788, English criminal law was imposed across the expanding colony in present-day New South Wales, although it took decades to resolve how it applied to Aboriginal people. Today, substantial evidence shows Aboriginal communities continue to face systemic bias in the criminal legal system, resulting in shocking rates of criminalisation and incarceration.
Towards Truth is our ground-breaking truth-telling partnership with the Indigenous Law Centre. New research on Criminal Offences examines how the criminal law has been used to control First Nations lives.
Early interaction with English criminal law
From 1788, long-standing Aboriginal systems of law, culture, and governance – commonly known as ‘customary law’ – were overridden by colonial rule. English law was imposed across the New South Wales colony, although it took decades to resolve the extent to which English criminal law applied to Aboriginal people.
Early on, military officers and settlers took punishment into their own hands, in line with views expressed by some government officials. A court witness statement from 1816 recounts Governor Hunter saying an Aboriginal boy accused of spearing a white man should have been punished ‘on the spot’, as there was no authority to punish the boy under English law.
When Governor Macquarie imposed ‘Rules, Orders and Regulations to be observed by the Natives, and rigidly enforced’ in 1816, Aboriginal people were offered legal protection only if they behaved peacefully and applied for a special passport – treating legal protection as a privilege granted at the Governor’s discretion, and not a right.
Colonial courts also saw Aboriginal people as having different legal rights and obligations to white settlers. And the court’s view on whether English criminal law could be imposed on Aboriginal people shifted over time.
The first record of an Aboriginal person being convicted in a court involved an Aboriginal man who had been adopted by colonists as a child, who was tried for rape in 1816.
In an 1832 case involving two Aboriginal men accused of stealing sheep, the court made it clear that English law did apply to Aboriginal people accused of crimes against white people’s property. But it declined to try the men on the basis they were not able to understand the law.
Whether English law should apply to acts committed by Aboriginal people against Aboriginal people was more controversial. In 1829, Chief Justice Forbes of the New South Wales Supreme Court said it was the policy of the courts and the government not to interfere in the ‘quarrels’ between Aboriginal people. But when Jack Murrell was before the Court in 1836, accused of killing another Aboriginal person, that position was overturned. The Court reasoned ‘serious cases might arise if these people were allowed to murder one another with impunity’.
The issue was settled in 1837, with the British Colonial Office directing the Governor to ensure all Aboriginal people within New South Wales be treated as British subjects and be taught that English criminal laws superseded Aboriginal customary law.
Contemporary criminal law impacts
Many reports, inquiries and reviews have shown First Nations people are unfairly targeted by over-policing and criminalisation. While discriminatory policing practices are broad in scope, our research shows how policing of particular offences has severely impacted First Nations peoples’ lives.
Offensive conduct and language
Offensive conduct and language laws aim to regulate public behaviour by enforcing ‘community standards’. In NSW, they criminalise public acts like swearing, urinating, fighting and wearing clothing displaying offensive language,
As enforcement relies on police discretion, impacts vary wildly between communities. First Nations communities feel the weight of these laws much more heavily than non-Indigenous people, especially in regional areas. Aboriginal people are charged at far higher rates and a charge can quickly escalate into the notorious ‘trifecta’ of offensive language or conduct, resisting arrest and assaulting police.
In 1982, the Anti-Discrimination Board of New South Wales examined court appearances for public order offences across ten country towns with high Aboriginal populations. It found 98% of court appearances for street offences involved Aboriginal people, with 61% of cases involving the use of ‘unseemly words’, compared to 43% across the state. In three-quarters of cases, police were the people reportedly ‘seriously alarmed’ or ‘affronted’ by language used. The research found that in at least one major town, non-Aboriginal residents, including police, were found to use offensive language more frequently than Aboriginal residents, suggesting selective enforcement.
A 2009 NSW Ombudsman review found a significant increase in Criminal Infringement Notices (‘on the spot’ fines) issued to Aboriginal people, with 45% of those fines issued for offensive language. It recommended NSW Police develop local strategies to reduce the over-representation of Aboriginal people being charged. Despite both the NSW Law Reform Commission and the Australian Law Reform Commission since confirming the on-going disproportionate impact of public offence laws on Aboriginal people and urging reform, these laws have not been changed or repealed.
Consorting laws
Consorting laws make it a crime to associate with people who have criminal records or are perceived as threats to public safety. These laws have their root in vagrancy laws which, as far back as the 1830s, were applied differently to Aboriginal people and non-Aboriginal people.
Consorting laws aim to control public behaviour and purport to prevent crime. In NSW, a person can be charged if they ‘habitually consort’ with a convicted offender after police have warned them to stop. Defences include if a meeting is for family, work or education purposes.
Consorting laws were updated in NSW in 2012, with changes aiming to modernise, clarify and extend the offence, to give NSW Police ‘adequate tools to deal with organised crime’. But during Parliamentary debate, Upper House MLC David Shoebridge warned:
‘This bill will give the police such a broad discretionary power to constrain the capacity of Aboriginal citizens in this State from meeting with their extended family. Aboriginal citizens, on the misfiring of our criminal justice system over the past two centuries, face enormously disproportionate imprisonment rates, indictable offences and charges.’
In 2016, a NSW Ombudsman review revealed the laws were not being used to target serious crime but were frequently applied to offences ‘including minor and nuisance offending’. It also found disproportionate use against Aboriginal people, young people and people experiencing homelessness, often without any evidence of links to serious or organised crime.
Despite 2018 amendments responding to the Ombudsman’s concerns, including expanding the definition of ‘family’ to reflect Aboriginal kinship systems, a 2019-2022 review by the NSW Law Enforcement Conduct Commission raised similar concerns. It found in a ‘large number of cases’ there appeared to be no clear link between serious criminal activity and consorting warnings. Again, Aboriginal communities were disproportionately impacted, with Aboriginal people accounting for 42% of adults and 25% of children charged with consorting law offences.
Find out more
Head to the Towards Truth website for further research into Prohibition on sale of alcohol, Public drunkenness and Driving offences.
Additional research on Contemporary Policing will be released soon, with detailed information about particular policing practices that have been shown to unfairly target First Nations communities.
