The Exercise of Jurisdiction

Abstract

In the years before self-government of the Australian colonies, criminal jurisdiction over Indigenous peoples had been settled, or so it seemed. In New South Wales (NSW) (at a time when its territorial borders covered the entire east coast and hinterland of the continent), that question had been determined in R v Jack Congo Murrell in 1836. Six years later and in seeming ignorance of Murrell, a bench of magistrates in the tiny settler colony of Perth had asserted its jurisdiction over the Indigenous peoples of the western half of the continent in the case of R v Wewar (1842). Judgments in both cases had contemplated the difficulties that might follow in making jurisdiction effective. In South Australia those difficulties were the source of conflict between the desire of a judge seeking a ‘proper exercise of jurisdiction’, and that of a governor wanting to use law to establish order on the frontiers of settlement, among settlers as much as Aborigines (Ward, 2006, emphasis in original). A late flourish of legal advocacy challenging jurisdiction in self-governing Victoria around 1860 also foundered in the Supreme Court, seemingly the end of any sense of multiple jurisdictions in the Australian colonies.