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Law's Empire or Empire's Law? Legal Discourses of Colonies and Commonwealths
33rd Annual Australia and New Zealand Law and History Society Conference
Hosted by the School of Law, University of New England, Australia
Coffs Harbour, 10-13 December 2014
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Francis Forbes Society for Australian Legal History Prize
The Francis Forbes Society for Australian Legal History offers a prize for the best paper presented by a
postgraduate or early-career researcher at the Australia and New Zealand Law and History Society
Annual Conference.
The prize is $500 plus membership of ANZLHS and the prize-winning paper will be considered
for publication in the ANZLHS journal, Law and History.
If you think you might be eligible and would like your paper to be considered, please register your
interest with the conference organiser (Mark Lunney) before the conference and no later than your
presentation. A copy of your paper (article length - approximately 8,000 words) will need to be lodged
with the conference organiser by January 10, 2015.
The prize will be awarded from eligible papers by a panel selected by the editor of Law and History
(Diane Kirkby).
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"Law's Empire or Empire's Law?: Legal Discourses of Colonies and Commonwealths" Program as at 2 December
Wednesday 10 December 6.00pm – 7.15pm Registration and Welcome Drinks and Canapés - Breakers Room
Thursday 11 December 8.30am – 9.00am Arrival Tea and Coffee – Lagoon Room Breakers Room Norman James Room Lagoon Room 9.00am – 11.00am
Empires and Land Law
Ruiping Ye (VUW) “Recognition of aboriginal land rights in Taiwan during the Qing Dynasty, 1684-1895”
Hilaire Tegnan (Andalas University) “Legal Pluralism and Land Administration in West Sumatra: The Implementation of Local Regulations Regarding Nagari Government And Local Regulations on Communal Land Tenure”
S M Masum Billah (VUW) “The Politics of Land Law in Bengal: An Historical Overview”
John Page (SCU) “The Shared Legal Discourses of Grazing Rights Regimes”
Commercialising the Colonies
Katharine Kemp (UNSW) “The Struggle for the Soul of Australia's First Competition Statute”
Professor Stuart Anderson (Otago) “The formation and experience of bankruptcy law in New Zealand in the mid C19”
Onofrio Deserio (La Trobe) “Creating ‘accomplished workmen and good citizens’: Apprentice laws and the Factory System in Victoria, 1864 to 1900”
Chris Tomlins (UC Berkeley) “The Political Economy of ‘Labour’ in Antebellum Virginia: the Virginia Constitutional Convention of 1829-30, the Turner Rebellion, and the Emancipation Debate of 1831-32.”
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11.00am-11.30am Morning Tea
Breakers Room Norman James Room Lagoon Room 11.30am – 1.00pm
Punishment and Empire
Sarah Wilson (York UK) “Crime, punishment and rehabilitation: transportation and the criminal with ‘… esteemed cultural attainments’”
David Plater (UniSA) “The ‘Gentle Art’ of Poisoning, Females and Murder in 19th Century Britain and Australia: ‘Assuredly there never was Murder more Foul and Most Unnatural’?”
Matt Allen (UNE) “Samuel Marsden Lays Down the Law: Eighteenth-Century Justice in Nineteenth-Century NSW”
Lawyers in the Colonies
Louise Baker (ANU) “Commonwealth Women Trailblazers: What can network theory tell us about the lives and careers of Australia’s trailblazing women lawyers and how may network analysis be of use to legal historians?”
Jeremy Finn (Canterbury) “Fit and proper but not solvent: the slow development of financial security as a requirement to legal practice in New Zealand”
Peter Moore (UTS) “An Office of Barrister in British Colonies?”
Intellectual Property in the Empire
Kathy Bowrey/Catherine Bond (UNSW) “The Mystery of a Hansom Cab: An inquiry into how late 19th century copyright law supported colonial ‘Australian’ productions”
Catherine Bond (UNSW) “Beyond Borders: Extra-territorial regulation of ‘Anzac’“
Catherine Kelly (UWA) “Medicine, Patents and Parliament –Intellectual property and the culture of reward in Nineteenth Century Britain”
1.00pm -2.15pm Lunch and AGM
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Breakers Room Norman James Room Lagoon Room 2.15pm – 3.45pm
Foundations
Renae Barker (UWA) “Plural Establishment - what was it and when did it end?”
David Roberts (UNE)/Lisa Ford (UNSW) “’Mr Peel’s Amendments’: Imperial criminal reform in New South Wales”
Colonialism on Trial
Alana Piper/Lisa Durnian (Griffith) “Theft on Trial: Prosecuting Property Crime in Colonial Australia”
Eugene Schofield-Georgeson (Macquarie) “Mad’ Edwin Withers and the Struggle for Fair Trial Rights at Parramatta”
Maori and Empire
Shaunnagh Dorsett (UTS) “Governing Māori: Models of Governance 1835-1846”
David Williams (Auckland) “Colonial Office policy 1835-1847: 1940’s papers by Oxford's ET Williams and recent scholarship compared”
Guy Charlton (Curtin) “New Zealand Constitutionalism and Maori: The failure of legal pluralism in 19th Century New Zealand”
3.45pm – 4.15pm Afternoon Tea
4.15pm – 5.15pm
Plenary Lecture: Professor Paul Mitchell (University College London) ‘The Privy Council and the Difficulty of Distance’
Lagoon Room
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Friday 12 December 8.30am – 9.00am Arrival Tea and Coffee – Lagoon Room Breakers Room Norman James Room Lagoon Room 9.00am – 11.00am
Intellectual Horizons
Carolyn Penfold (UNSW) “The continuing influence of colonial history on South Pacific law.”
Grant Morris (VUW) “The historiography of legal biography in New Zealand”
Susan Bartie (Tas) “Can Australians Do Legal Theory? A Short Intellectual History”
Rule of Law in the Old and New Colonies
John Orth (University of North Carolina) “The Rule of Law: ‘A concept of the utmost importance but having no defined, nor readily definable, content’”
Karena Viglianti-Northway (UTS) “Responsible government – different meanings or different focus? A comparison of the importance placed upon different ideas of responsible government in England and the Australian colonies in the 1890s”
Han Ru Zhou (Montreal) “The Reception of the Common Law, Judicial Review and Constitutional Principles”
Colonies and the impact of WWI
Diane Kirkby (La Trobe) “‘unfortunate necessities of warfare’: National security and the curtailment of free speech under the War Precautions Act 1914”
Caroline Dick (Wollongong) “The Mother(land) leads the way: a sumptuary impulse bound up with slouch hats and khaki”
Cameron Moore (UNE) “The External Affairs Prerogative and the Australian Occupation of German New Guinea 1914-1921”
John McLaren (Victoria) “Shamrock in the Levant: Reflections on the Influence of the ‘Irish Question’ on Governance and Law in Mandate Palestine”
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11.00am – 11.30am Morning Tea
Breakers Room Norman James Room Lagoon Room 11.30am – 1.00pm
Tort Law and Lawyers
Pamela O’Neill (Sydney) “Empire's Law and Law's Neighbourhood: how much does the imperial background of Donoghue v Stevenson matter?”
Jason Taliadoros (Deakin) “The Conundrum of Punitive Damages: Was it Ever So?”
Wendy Bonython (Canberra) “Returning the favour? Australia’s contribution to the socio-legal perspective of Lord Atkin”
Environments of Empire
Libby Connors (USQ) “World Heritage in Danger: Environmental law caught between overlapping jurisdictions”
Rachel Young (UTS) “River red gums and English oak: a history of timber trees in Australian Law”
Nicole Graham (UTS) “Antipodean Law: an environmental critique of Australian legal history”
Policing and the Empire
Anastasia Dukova “Irish Policing Experience on Colonial Soil”
Mark Finane/Amanda Kaladelfos (Griffith) “Policing and Immigration in Postwar Australia”
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1.00pm – 2.00pm Lunch
Breakers Room Norman James Room Lagoon Room 2.00pm – 3.30pm
Shaping the Family Unit
Henry Kha (Qld) “Divorce Law and Public Policy in Victorian England”
Bettina Bradbury (York, Canada) “Colonial legacies: 19th century property and inheritance cases at the Judicial Committee of the Privy Council”
The Devil You Know: Decolonizing the “Empire” and Colonial Legal
Discourse
Nepia Mahuika (Waikato) “Driving out the Devil: Critiquing Māori, Witchcraft, Law and the Empire”
Robert Joseph (Waikato) “Māori and the Empire Strike Back – Māori Self-Governance in Colonial New Zealand up to 1889”
Rangimarie Mahuika (Waikato) “Ka haere whakamua me hoki whakamuri’: The Past, the Present, and Future Aspirations for Ngāti Rangiwewehi Governance”
Children of Empire
Robyn Blewer (Griffith) “A witness in a court of law has no protection’ - The adversarial trial and the experience of the child witness”
Armanda Scorrano (UTS) “Punishing the Poor or Protecting the Vulnerable? Early Judicial Approaches to Child Abuse and Neglect in England and New South Wales”
Christine Kelly (Glasgow) “Exporting law to the Empire; Scottish/UK influences on Australian juvenile justice in the nineteenth and early twentieth centuries”
3.30pm – 4.00pm Afternoon Tea
4.00pm – 4.15pm
Launch of Law and History Journal Lagoon Room
4.15pm – 5.15pm
Plenary Lecture: Professor Mike Grossberg (Indiana University, Bloomington) ‘Why Kids Matter: Age as a Useful Category of Analysis in Legal History’
Lagoon Room 7.00pm Conference Dinner
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Saturday 13 December 8.30am – 9.30am Arrival Tea and Coffee – Lagoon Room Breakers Room Norman James Room Lagoon Room 9.30am-11.00am
Law's counter-archives
Trish Luker (UTS) “Animating the Archive: Legal Sources and the New Materialisms”
Miranda Johnson (Sydney) “Law, Archive, Memory: Indigenous rights on development frontiers”
Hilary Soderland (University of Washington) “The Archive in Archaeology: Autopoiesis, Law, and Indigeneity”
Post-colonial Colonial Adoptions
Gabrielle Wolf (Deakin) “A delayed inheritance: the Medical Board of Victoria’s 75-year wait to obtain its British counterpart’s power to prosecute doctors for ‘infamous conduct”
Fiona Davis (ACU) “Madness across empire: Interwar inquiries into lunacy in Western Australia and the United Kingdom”
Bevan Marten (VUW) “A history of the admiralty jurisdiction in New Zealand, 1840-1863”
11.00am – 11.30am Morning Tea
Breakers Room Norman James Room Lagoon Room 11.30am – 12.30pm
Colonial Office Case Studies
Mel Keenan (Monash University) “The extension of imperial sovereignty to British New Guinea”
Janine Rizetti (La Trobe) “The Judge, The Special Magistrate and the Protector: The Clash of Colonial Office Policy, Local Custom and British Law”
Continental Internationalism
Sally Low (Melbourne) “Disputing Jurisdiction: French Colonial Power and Cambodian Courts 1904-1920”
Louis Sicking (VU Amsterdam and Leiden) “Funduqs, feitorias, factories. The Institutional Foundations of Overseas Trade or the Globalisation of a Concept”
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12.30pm – 1.30pm Lunch and Conference end
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List of Presenters
Plenary Lecture: Professor Paul Mitchell .......................................................................... 3
Plenary Lecture: Professor Michael Grossberg ................................................................. 4
Dr Matt Allen ..................................................................................................................... 5
Professor Stuart Anderson ................................................................................................ 6
Ms Louise Baker ................................................................................................................ 7
Dr Renae Barker ................................................................................................................ 8
Ms Susan Bartie ................................................................................................................. 9
S M Masum Billah............................................................................................................ 10
Ms Robyn Blewer ............................................................................................................ 13
Dr Catherine Bond ........................................................................................................... 14
Dr Wendy Bonython ........................................................................................................ 15
Professor Kathy Bowrey and Dr Catherine Bond ............................................................ 16
Professor Bettina Bradbury ............................................................................................. 17
Dr Guy C. Charlton ........................................................................................................... 19
Dr Elizabeth Connors ....................................................................................................... 21
Fiona Davis ...................................................................................................................... 22
Mr Onofrio Deserio ......................................................................................................... 23
Caroline Dick ................................................................................................................... 24
Professor Shaunnagh Dorsett ......................................................................................... 26
Dr Anastasia Dukova ....................................................................................................... 27
Professor Jeremy Finn ..................................................................................................... 28
Professor Mark Finnane .................................................................................................. 29
Dr Nicole Graham ............................................................................................................ 30
Dr Miranda Johnson ........................................................................................................ 31
Dr Robert Joseph ............................................................................................................. 33
Mel Keenan ..................................................................................................................... 34
Dr Catherine Kelly ........................................................................................................... 36
Dr Christine Kelly ............................................................................................................. 38
Katharine Kemp ............................................................................................................... 39
Henry Kha ........................................................................................................................ 41
Professor Diane Kirkby .................................................................................................... 42
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Sally Low .......................................................................................................................... 43
Dr Trish Luker .................................................................................................................. 45
Dr Nepia Mahuika ........................................................................................................... 46
Rangimarie Mahuika ....................................................................................................... 47
Dr Bevan Marten ............................................................................................................. 49
Professor John McLaren .................................................................................................. 50
Mr Cameron Moore ........................................................................................................ 51
Mr Peter Moore .............................................................................................................. 52
Dr Grant Morris ............................................................................................................... 53
Dr Pamela O’Neill ............................................................................................................ 54
Professor John Orth......................................................................................................... 55
Mr John Page ................................................................................................................... 56
Ms Carolyn Penfold ......................................................................................................... 57
Dr Alana Piper and Ms Lisa Durnian ................................................................................ 58
Dr David Plater ................................................................................................................ 59
Ms Janine Rizzetti ............................................................................................................ 61
Dr David Roberts and Dr Lisa Ford .................................................................................. 62
Mr Eugene Schofield-Georgeson ..................................................................................... 63
Armanda Scorrano .......................................................................................................... 64
Professor Louis Sicking .................................................................................................... 65
Dr Hilary Soderland ......................................................................................................... 66
Dr Jason Taliadoros ......................................................................................................... 68
Hilaire Tegnan ................................................................................................................. 69
Professor Christopher Tomlins ........................................................................................ 70
Karena Viglianti-Northway .............................................................................................. 73
Professor David V Williams ............................................................................................. 74
Dr Sarah Wilson ............................................................................................................... 76
Dr Gabrielle Wolf............................................................................................................. 80
Ms Ruiping Ye .................................................................................................................. 81
Rachel Young ................................................................................................................... 82
Assistant Professor Han-Ru Zhou .................................................................................... 83
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Plenary Lecture: Professor Paul Mitchell
The Privy Council and the Difficulty of Distance
Abstract
In 1828, in the course of delivering his famous speech on law reform to the House of Lords, Henry
Brougham identified “the difficulty… arising of necessity from our distance” as the great challenge faced
by the Privy Council. This lecture explores the strategies subsequently used by the Privy Council in its
attempts to overcome that difficulty. Some of these strategies involved the court appearing to move
closer to the jurisdiction from which the appeal had come. These included being seen to apply foreign
standards in its decisions, positioning its analyses against the grain of traditional English doctrines and
making use of the expertise of former colonial judges. Other strategies implicitly asserted that distance
was irrelevant by appealing to universal principles, to policy and to general common sense. Occasionally
the Privy Council felt that the difficulty of distance loomed so large that it was inappropriate to decide
the case. By using these different strategies skilfully and opportunistically, the Privy Council managed to
maintain both its legal credibility and moral authority, in spite of the formidable difficulties of distance
with which it continued to be faced.
Biography
Paul Mitchell joined UCL as Professor of Laws in 2010, and has previously taught at King's College
London, Queen Mary University of London, and Oxford University. Paul's main research interests are the
law of tort, contract and unjust enrichment. Much of his work is historical, exploring how and why the
law developed to its present form. He is also interested in Roman law and the history of legal education.
His current research projects include co-authoring the eighth edition of Goff and Jones on the Law of
Restitution (with Charles Mitchell, also UCL), and writing an essay on Penn v Lord Baltimore for a
conference on Landmark Cases in Equity (to be held at UCL in April 2011). His longer term research
project is a monograph on the history of the law of tort from 1900 to 1950.
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Plenary Lecture: Professor Michael Grossberg
Why Kids Matter: Age as a Useful Category of Analysis in Legal History
Abstract
In 1986 historian Joan Scott published a seminal article in the American Historical Review: “Gender: A
Useful Category of Historical Analysis.” It crystalized and directed a growing body of work that argued
that gender was a critical force in the past as in the present and argued persuasively that we could not
understand history fully without studying gender. I want to make the same case for age, especially in
legal history: we cannot understand fully the legal past or its role in creating the present without
studying age. My focus will be on one dimension of age spectrum – the young – to argue that there is
the possibility of a deeper and distinctive understanding of the past by paying attending to the legal
history of children and childhood. Though my examples will be drawn primarily from the United States
since the late nineteenth century, I intend to address the conference theme by suggesting through
comparison that the law of the young can be understood as a colonizing discourse but one with differing
national dialects including among former British colonies in and outside of the Commonwealth.
Biography
Professor Grossberg is a historian of United States and I specialize in the history of law. I have a joint
appointment in the Department of History and the School of Law. My research focuses on the
relationship between law and social change, particularly the intersection of law and the family. I am
currently working on a study of child protection in the United States that will assess issues such as child
labor, juvenile justice, school reform, disabilities, and child abuse from the 1870s to the present. I
recently co-edited Re-Inventing Childhood in the Post World War II World (2011). I have also been
involved in several family policy research projects such as an initiative to create guidelines for genetic
testing in child custody cases. I teach courses in American legal and social history. I edited the American
Historical Review from 1995 to 2005 and I have published several articles on scholarly editing.
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Dr Matt Allen
Samuel Marsden Lays Down the Law: Eighteenth-Century Justice in Nineteenth-Century NSW.
Abstract
Magistrates in early NSW employed a remarkably limited knowledge of the English criminal law when
enforcing summary justice. Not only did they invent offences like ‘suspicion of robbery’ and ‘overdriving
cattle’ to discipline their recalcitrant convict workforce but they showed little consistency in the
application of punishments which consequently varied enormously. But this approach to their work on
the bench was in fact quite typical of the English tradition they worked within. Sharply divided between
a criminal working class and an official elite, early NSW was almost a caricature of the society assumed
under eighteenth-century English law.
This paper will look at one of the most famous of the early magistrates, the so-called ‘flogging parson’,
Samuel Marsden. Through a detailed examination of his work on the Parramatta Bench between 1815
and 1820 I will try and explore the approach to criminal justice in NSW and how it reflects the larger
challenge of imposing public order in a penal colony.
This paper is based on my research as the 2012 Archival Research Fellow with the NSW State Archives.
My wider project examines the use of summary jurisdiction by Justices of the Peace to manage offences
against public order and decency and focuses particularly on the transition of the magistracy from an
institution primarily concerned with disciplining convicts to one managing a free population.
Biography
Dr Allen is a Lecturer in Historical Criminology at the University of New England whose research is
focussed on colonial NSW and its transition from convict colony to orderly democracy. In particular he is
interested in the history of drinking and drunkenness and the history of magistrates and summary
justice.
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Professor Stuart Anderson
Going for the broke: making bankruptcy law in New Zealand c 1860-1867.
Abstract
This paper seeks to explain why the early stages of New Zealand’s bankruptcy law took the form they
did, from the home-grown Debtors and Creditors Act 1862 through amendments in 1865 and 1866 to its
replacement by an English text in 1867.1 It argues that these shifts and turns flowed clearly but
opportunistically from the differing experiences and values of the commercial elites in the colony’s main
settlements – notoriously New Zealand then was more like five colonies than one. Central government
was always present in the debates, but more often as a disappointment than as a driver or even a
facilitator. Central government was weak in the sense that it was small and unstable; executives
typically consisted of only half a dozen men and quite frequently changed in the course of a legislative
session. The same big men tended to recur – Edward Stafford particularly – but the pressures of the war
in Taranaki and consequent financial stringency caused frequent turnover, and there were no political
parties to bring stability within the legislature. Stafford was cynical about commercial elites and about
the ability of anyone, anywhere, to write a bankruptcy law that would satisfy everyone.2 Regionalism
was endemic, of course; there was a system of provincial government and there was a political
movement for outright separation. This paper illustrates that regionalism could also leave a mark on
national legislation even of such a technical character as bankruptcy. I argue that the choice to replace a
native with an English text was merely expedient, not emulative or deferential.
Biography
Professor Anderson is a Professor of Law, with research and teaching interests in property law, public
law and legal history. Currently my major research project concerns the nineteenth century history of
public law and property law, for publication in the Victorian volumes of a projected multi-volume, multi-
authored, history of the laws of England. I am the author of Lawyers and the Making of English Land Law
1832-1940 (Oxford, 1992).
While at Otago I have been Dean of the Faculty of Law for five years from 1993 and again from July 1999
until February 2001. I came here in 1990, having been a lecturer at the University of Oxford, and Fellow
and Tutor at Hertford College, Oxford. Before that I was a lecturer in the Law Department at the London
School of Economics and Political Science.
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Ms Louise Baker
Commonwealth Women Trailblazers: What can network theory tell us about the lives and careers of Australia’s trailblazing women lawyers and how may network
analysis be of use to legal historians?
Abstract
This paper will explore the lives and careers of trailblazing women lawyers of the Commonwealth of
Australia, with a specific focus on former Judge and Magistrate, Valerie French. Based on in-depth
analysis of the extensive data extracted from the full life oral history transcripts that form the backbone
of the ‘Trailblazing Women and the Law’ project, I analyse the data in a socio-scientific manner. Social
network analysis (SNA) examines the structure of relationships between social entities and this paper
specifically seeks to draw attention to the social capital these trailblazers developed to investigate the
role this may have played in making them trailblazers. This form of analysis may be of use to other legal
history projects involving extensive data and related information.
Biography
Louise is currently studying towards the degree of Doctor of Philosophy through the College of Law at
The Australian National University, Canberra. She is a member of The International Network for Social
Network Analysis and has completed courses alongside her graduate research in the areas of network
analysis, statistics and data science, (including programming in R and python). Her doctoral thesis is
based in the field of informatics and network theory, specifically social network mapping and analysis
(SNA).
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Dr Renae Barker
Plural Establishment - what was it and when did it end?
Abstract
Most commentators agree that the Church of England was the established Church of Australia prior to
the grant of representative government. There is some debate as to whether this establishment was de
jure or de facto, but in any event establishment ended decades before federation. Less well explored is
what followed. Unusually for a British colony the period of establishment of the Church of England was
followed by ‘plural establishment.’ What constitutes plural establishment from a legal perspective and
how long it lasted has not been explored. This paper will examine these joint questions from a number
of perspectives.
As well as examining the concept of plural establishment from a legal perspective the paper will
examine the attitudes and behaviour of the Governors, clergy and State officials towards both the
Church of England and the other major Christian denominations. In a remote colony, such as Australia,
the treatment of the various churches on the ground counted far more than their technical legal
position. Different groups and individuals had differing opinions on when the establishment of the
Church of England ended and plural establishment began.
The end of plural establishment is also difficult to pin down. Different colonies moved at different paces.
While New South Wales officially ceased providing direct grants to the churches in 1862 Western
Australia did not end its grants program until 1895. However, equating plural establishment with State
grants is an oversimplification. Simply providing funds to a church may not necessarily equate to
establishing that church, especially if the funds are provided on a non-discriminatory basis as happened
in South Australia.
Finally the Australian position will be compared with the experience of comparable jurisdictions, such as
New Zealand and Canada. As British colonies Canada and New Zealand provide a contrast to the
Australian experience each with their own unique interaction between the Church of England, the State
and other major Christian denominations.
Biography
Renae Barker is a lecturer at the University of Western Australia. She has recently completed her PhD
which examined the history of the interaction of the State and religion in Australia.
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Ms Susan Bartie
Can Australians Do Legal Theory? A Short Intellectual History
Abstract
Local folklore has it that Australians have never really been strong legal theorists. For example, in 1987
in the pages of the Modern Law Review Michael Chesterman and David Weisbrot said that it was ‘not
yet really possible to identify any distinctively Australian academic jurisprudence, or even to identify
local versions of major overseas schools of thought.’1 The purpose of this paper is to describe the
endeavours of three legal scholars who each held Chairs in Law that brought with them the expectation
that they would advance legal theory. Geoffrey Sawer was the first Chair of Law to head up the
Department of Law at the Research School of Social Sciences at the Australian National University. He
held the first research-only position in law. When he retired in 1975 the Department was wound down.2
Peter Brett was the last Chair of Jurisprudence at the University of Melbourne and Alice Erh-Soon Tay
was the last Chair of Jurisprudence to head the Department of Jurisprudence at the University of
Sydney. What do their endeavours and endings – with each of their roles ceasing with the expiration of
their tenure – say about the history of Australian legal theory and Australian legal education? What does
their work say about what was possible for an Australian legal scholar and what mould – if any - did they
help to create? Did they challenge disciplinary boundaries, attempt to become local versions of Dworkin
or Hart or create a distinctively Australian brand of legal theory? Did they study and theorise the law
and legal institutions in the same way that their English counterparts had done and were continuing to
do? And did their approach encourage Australia’s laws to be conceptualized and developed differently
from those of England?
Biography
Susan Bartie is currently a part time lecturer in law at the University of Tasmania. She is also enrolled in
a Doctor of Philosophy at the University of Adelaide. Her thesis is an intellectual history of Australian
legal academics. Susan commenced her academic career as a lecturer at the University of Adelaide in
2006. She had previously been a commercial litigator and an associate to a judge of the Federal Court of
Australia. In 2001 she was the recipient of a British Chevening Scholarship awarded by the British
Council that enabled her to travel to the University of Cambridge to complete a Masters of Law.
1 Michael Chesterman and David Weisbrot, ‘Legal Scholarship in Australia’ (1987) 50(6) Modern Law Review 709, 724. 2 It was revived again in the late 1980s.
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S M Masum Billah
The Politics of Land Law in Bengal: A Historical Overview
Abstract
As a doctoral candidate I am studying the post-colonial land reform in Bangladesh. My main issue of
inquiry is whether the legal regime relating to land is contributing to the perpetuation of poverty in
Bangladesh. One of the chapters of my work will concentrate on the historical introduction of land law
in Bangladesh. In the ANZLHS Conference 2014, I wish to delve on this particular point of my research.
Bangladesh is a developing country of about 1, 47,570 sq/km located in South Asia. It has a British
colonial past of 200 years (1757-1947) having far reaching implications for post-colonial land reform
agenda. As a part of British India, it inherited a common law legal tradition. A large part of the
Bangladeshi legal system was shaped by English colonialism through land legislation.
In order to understand the appropriate approach of land reform in the post-colonial era it should be
proper to see how the present situation came about. The study of the history of the land law may
provide explanations of how particular principles developed. Once the roots of the current law will be
clear, the structure of contemporary Bangladeshi land law will be more logical.
I will discuss the overall thrust and effect of the British colonial land legislation in Bangladesh (and
British India in broad sense) by examining three major legislative initiatives: (i) The Permanent
Settlement Regulation of 1793; (ii) the Bengal Tenancy Act 1885 and (iii) The State Acquisition and
Tenancy Act 1950.
The concept of Permanent Settlement opened the way to create a kind of feudalism in Bengal. The far-
reaching impact of the system was that it created many intermediary interest groups, enjoying sub-
infeudatory rights and constituting a chain of economic exploitation. The Bengal Tenancy Act 1885 was
designed to ameliorate the condition of the farmers, but it protected only the rights of the occupancy
tenants affording no protection to the non-occupancy tenants like the sharecroppers. Moreover, the law
allowed the landlords to keep the cultivator as a virtual debt-serf. Thus, indebtedness was a major cause
of agrarian malaise in Bengal which made many farmers of lower strata impoverished. In this way, the
laws ignored the subordinate class of farmers and thereby introduced a historical process of
depeasantisation. This, in turn, became the foremost reason of colonial poverty.
The cumulative effect of the Permanent Regulation and Bengal Tenancy Act created a vicious cycle of
poverty which continued for the next 65 years. Land reform issues again gained momentum in the
culmination of British colonialism in the 1940s. The State Acquisition and Tenancy Act 1950 (SAT Act)
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was passed following the recommendations made by Sir Francis Floud Commission. This law abolished
the 157 years old zamindary system (landlord system) introduced by the Permanent Settlement
Regulation 1793.
However, the efficacy of this law in addressing poverty is open to controversy for diverse reasons like
legal challenges, faulty ceiling provisions of land holding, non-recognition of land rights of the
indigenous communities, introduction of lengthy land records system etc.
With these vices, the SAT Act continued to operate even after Bangladesh’s independence in 1971. It is
still a valid law forming the basis of post-colonial land reform initiatives in the country. The land reform
issue found no serious place in the new constitution of independent Bangladesh and the later land
reform attempts were largely fragmented and piecemeal. The land laws appeared to be of little help in
improving the lot of the poor as study reveals that landlessness has increased three-fold over the last
four decades.
The present poverty scenario in Bangladesh has not come up all of a sudden. The inequalities of land
distribution have come up historically to deprive the poor. Therefore, I propose to see whether the post-
colonial legal regime of land rights in Bangladesh structurally and textually provides a possibility to
transform property institutions and framework where pro-poor land reform can take place. My main
question in the paper will be: to what extent is the present land law regime of Bangladesh influenced by
colonial land law and policy? And can the present state of poverty in Bengal be interpreted as an
outcome of colonial process of depeasantisation?
In my paper, firstly, I will deconstruct my ideas of history of land law by consulting the English writers
like Frykenburg, David Washbrook and Peter Robb who seemed to have founded the justification of the
land reform initiatives in British India largely on the ground of simplicity, certainty and expediency. Then
I will examine the views of Indian scholars about the colonial legislative interventions on land rights.
Ranajit Guha’s work A Rule of Property for Bengal in particular will be helpful where he examines how
the western notion of private property was imposed in the Indian Sub-Continent through the British
establishment of permanent settlement. Patrick McAuslan in his paper Property and Empire (2006) tells
us how the British used land law as a tool of expansion of colonialism in the jurisdictions analogous to
Bangladesh. McAuslan identified that the contrast between the native customary land laws and the
imposed rules of land laws was at the heart of colonial enterprise. This provided a formal legal backing
for the land rights deprivations in the colonies. His work also gives a notion about how legal history
blends in with law and development for the past in giving the shape of existing land laws.
I will elaborate these ideas with concrete examples from the Bengal.
12
Biography
I am currently a doctoral candidate at the School of Law, Victoria University Wellington. I am researching
under the supervision of Dr Caroline Sawyer and Professor Sekhar Bandyopadhyaya.
Before this, I was an Assistant Professor, Department of Law, Jagannath University, Dhaka, Bangladesh. I
also taught at the Stamford University Bangladesh and Northern University Bangladesh from 2004-2009.
I have published papers on judicial activism, right to privacy, indigenous peoples’ land rights, land rights
and poverty nexus, political empowerment of women, rule of law and constitutionalism.
I have presented papers in Mofid University, Iran; School of Law, Hong Kong University and Istanbul
Kultur University, Turkey on issues of constitutional law and human rights. I have also attended
international conferences in India, Nepal and New Zealand.
I am the Editorial and Publication Manager of the New Zealand Law Students’ Journal (NZLSJ) for the
2014 academic year.
13
Ms Robyn Blewer
“A witness in a court of law has no protection.” - The adversarial trial and the experience of the child witness
Abstract
Existing criminal justice systems aim to protect children from harm in the process of receiving their
testimony. This paper will consider the tensions between the need to shield child witnesses and the
English adversarial trial process, as practiced in Australian criminal courts. In what ways did the
adversarial system shape the experiences of children in the court? Have these experiences changed over
time? Were all children treated equally? The paper considers these questions through an examination of
the application and evolution of the laws regarding child witness testimony during the twentieth
century. In doing so, it examines the broader social and political climate of child protection in the late
nineteenth and early twentieth centuries and the establishment of Children’s Courts in Australia.
Biography
Robyn Blewer is a PhD candidate with the ARC Laureate Fellowship Project ‘Prosecution and the
Criminal trial in Australian History’ at the ARC Centre of Excellence in Policing and Security, Griffith
University. Her PhD thesis considers the laws relating to the testimony of the child witness in criminal
trials between 1900 and 1975 and the process of change in such laws. Prior to joining the ARC Laureate
Project, Robyn completed a Master of Criminology and Criminal Justice with first class honours, spent
two years as a Judge’s Associate, practised law in the area of commercial litigation and taught in the
Griffith University and Southern Cross law schools.
14
Dr Catherine Bond
Beyond Borders: Extra-territorial regulation of ‘Anzac’
Abstract
In 2003, the Australian and New Zealand Governments successfully applied to the World Intellectual
Property Organisation to have the word ‘Anzac’ listed as a term of such national significance that it
should not be registered as a trade mark in any country that is a party to the Paris Convention for the
Protection of Industrial Property. That success was the culmination of almost ninety years of politicking,
predominantly by the Australian Government, for the protection of the term ‘Anzac’ beyond the borders
of Australia and New Zealand. Just over a year after the landing at Gallipoli, Turkey, on 25 April 1915,
the Federal Government introduced two sets of statutory rules regulating the use of ‘Anzac’ in relation
to trade or business, by charities, or on private homes, vehicles and boats in Australia. At the same time,
it approached the governments of New Zealand, the United Kingdom, Canada and the United States in a
bid to convince those countries to introduce similar legal regulation for the term. This proposal was
successful in a number of jurisdictions, however where a national government could not legally
intervene, Australia subsequently sent delegates to approach individuals and businesses using ‘Anzac’ to
negotiate a cessation of that use. This paper examines the development of this formal and informal
regulation and how New Zealand and Australia, a country still in the infancy of its Federation and by no
means a parental or influential legal jurisdiction, managed to achieve this unprecedented extra-
territorial protection for this nationally significant term beyond the borders of those nations.
Biography
Dr Catherine Bond is a Senior Lecturer in the Faculty of Law, University of New South Wales. Catherine
teaches and researches in intellectual property law, with a focus on historical IP issues. With Professor
Kathy Bowrey, she currently holds a 3-year Australian Research Council Discovery Project grant that
explores the concurrent development of culture and copyright law in Australia. In 2014 Catherine was
also the recipient of the UNSW Law Research Fellowship for a project on the relationship between IP
and war in Australia, from World War I through to today. Catherine has published extensively in
Australian and international law journals including the University of New South Wales Law Journal,
Public Law Review, Intellectual Property Journal and Intellectual Property Quarterly.
15
Dr Wendy Bonython
‘Returning the favour? Australia’s contribution to the socio-legal perspective of Lord Atkin’
Abstract
Reflection on the contribution of Lord Atkin to development of the common law tends to focus on one,
or perhaps two, landmark cases where his judicial activism was at its most overt. This paper looks
deeper into the life and judgements of Lord Atkin, including his early Australian influences, and argues
that while those cases - Donoghue v Stevenson and Liversidge v Anderson - are inextricable parts of the
Atkin legacy, they are properly viewed in the context of his lifelong commitment to social justice, rather
than isolated instances of judicial activism. Atkin’s progressive approach is evident throughout a number
of other judgments during his career, including in cases where he was more successful in persuading his
judicial colleagues of the rightness of his point of view.
Donoghue v Stevenson- particularly Lord Atkin’s judgement - had a transformative effect on the law of
torts throughout the common law world, including in Australia. Although he is more commonly
identified as a Welshman, he spent his early years in Queensland, where his parents were active in local
politics and media. This paper argues that while Lord Atkin left an indelible mark on the law of Australia,
his early exposure to Australian politics and law reform had a significant influence on both his
jurisprudence and judicial personality. Later in his career, he represented Australia at international fora
seeking to devise a judicial system for the investigation of atrocities committed during World War 2. He
was also a long-standing personal correspondent of H V Evatt, the Australian High Court judge,
opposition leader, and Attorney-General who was instrumental in developing Australia’s foreign policy
and the newly-formed United Nations, in the aftermath of World War 2.
It considers other cases in which Lord Atkin played a pivotal role, often overshadowed by Donoghue v
Stevenson. It identifies themes throughout his judicial career that indicate a strong sense of social
justice, arguably traceable back to his early years in Australia. It relates criticism of Atkin as a public
figure and judicial activist with contemporary debate about figures such as Michael Kirby.
Biography
Wendy Bonython is an Assistant Professor at the School of Law at the University of Canberra. She
teaches and researches in torts, mental health law, privacy, and health and biotechnology law. 21
16
Professor Kathy Bowrey and Dr Catherine Bond
“The Mystery of a Hansom Cab: An inquiry into how late 19th century copyright law supported colonial ‘Australian’ productions
Abstract
This paper explores the commercialisation of Fergus Hume’s 1886 The Mystery of a Hansom Cab. This
‘shilling shocker’ is arguably as much trans-national in its origin and character as it is Australian, yet the
successful launch of the book by the Hansom Cab Publishing Company in London in 1887 was
accompanied by a prospectus for the company entitled “Australian Felix”. ‘The Mystery’ was advertised
as “A Message from Australia; a Literary Tribute to the Mother Country”. The company consistently
referred to the self-described New Zealander author Hume as “Australian”; part of the plan to capitalise
on the British appetite for “sensational, startling and realistic” studies of Australian colonial social life.
The first 1886 Kemp & Boyce publication of ‘The Mystery’ was protected under a colonial Victorian
copyright statute however that protection had very limited geographical remit. The novel was however
one of the first colonial works to benefit from the International Copyright Act 1887 (UK) which sought to
redress a situation whereby colonial authors and publishers were, as the Copyright Commission 1878
had noted, “even in a worse position than a French author”. In unpacking the legal foundations of ‘The
Mystery’ trade we explore the connection between law, economy and assertions of Australian colonial
identity in the late nineteenth century, looking at how colonial and British copyright laws worked to
create new opportunities for colonial publishers, and at why the law had far more mixed results for
authors and playwrights.
Biography
Dr Kathy Bowrey is Professor in the Faculty of Law, University of New South Wales. Her expertise
primarily relates to intellectual property, media and information technology regulation, reflecting a
broad range of interests pertaining to socio-legal history, media and cultural studies and legal theory.
She also researches on western laws affecting indigenous cultural and intellectual property. Currently
she is working with Dr Catherine Bond, a Senior Lecturer in the Faculty of Law, University of New South
Wales, on the Australian Research Council Discovery Project ‘Australian Made: A History of Australian
Copyright Law and Creator Success 1868-1968’. This project evaluates the role of copyright law in the
development of Australian culture, involving an investigation of the experience of five iconic Australian
creators in the arts: Nellie Melba, Norman Lindsay, Ken Hall, Albert Namatjira and Alfred Hill.
17
Professor Bettina Bradbury
Colonial legacies: 19th century property and inheritance cases at the Judicial Committee of the Privy Council.”
Abstract
This paper will explore cases about inheritance that were appealed to the Judicial Committee of the
Privy Council from Australia, New Zealand, Lower Canada/Quebec and the Cape Colony between the
1840s and the end of the 19th century. Over this period the sources of cases heard in this court changed
as the House of Lords took on responsibility for English testamentary and matrimonial appeals. By the
1870s, the Judicial Committee was a court of empire in which predominantly British jurists made
decisions about private colonial familial frictions regarding property and inheritance alongside the
merits of cases on commercial and constitutional issues that have received more attention from
historians. These decisions required that judges be familiar with the many different legal systems
governing civil matters, property regimes and inheritance in the colonies. I have published an account of
one New Zealand case, Rhodes v. Rhodes, which was heard in 1882, based on a paper given at the 2012
ANZLHS meeting. Here I seek to analyze the cases more broadly through a feminist lense that combines
micro-histories of some of the families involved with analysis of legal discourses and decisions in this
court that shaped the British Empire’s law and mapped some of the contours of law’s empire.
Biography
Bettina Bradbury is a Professor of History and of Gender, Sexuality and Women’s Studies at York
University. In late 2014 she will take up residence again in New Zealand. She has published widely on
women, family and the law in 19th century Montreal, Quebec, Canada as well as on aspects of marriage,
property and inheritance the 19th century British Empire. Her latest book was Wife to Widow: Lives,
Laws and Politics in Nineteenth-century Montreal. (Vancouver: University of British Columbia Press,
2011. This paper draws on research for her current major research project which explores the laws of
marriage, property and inheritance in the 19th century Cape Colony, New Zealand, Victoria – Australia
and Quebec. Publications related to that project include: “In England a man can do as he likes with his
property:” Competing Visions of Marriage and Inheritance in Nineteenth-Century Quebec and the Cape
Colony,” in Within and Without the Nation: Canadian History as Transnational History, edited by Adele
Perry, Karen Dubinsky and Henry Wu, forthcoming, Toronto: University of Toronto Press, 2014;
“Troubling inheritances: an illegitimate, Māori daughter contests her father’s will in the New Zealand
18
courts and the Judicial Committee of the Privy Council,” Australia and New Zealand Legal History E-
Journal, [2012]; “Colonial Comparisons: Rethinking Marriage, Civilization and Nation in 19th century
White- Settler Societies,” in Phillip Buckner and G. Frances eds., Rediscovering the British World,
(Calgary: University of Calgary Press, November, 2005), and her earlier “From civil death to separate
property: Changes in the legal rights of married women in nineteenth century New Zealand,” New
Zealand Journal of History, Vol. 29, 1 (April, 1995).
19
Dr Guy C. Charlton
New Zealand Constitutionalism and Maori: The failure of legal pluralism in 19th Century New Zealand
Abstract
Philip Joseph has observed that “New Zealand is the acme of legislative supremacy” with no
fundamental laws and entrenched bill of rights. This centralized Austinian conception of parliamentary
sovereignty was embedded early in New Zealand Constitutionalism. Within this system of governance
the courts function as a check upon executive action; but there is no possibility of judicial review based
on entrenched constitutional or common law standards or a self-executing incorporation of treaties as
found in the United States. Provided a valid statute is explicit, the courts are bound to enforce it
regardless of prior legislation or the common law. The unitary notion of legislative authority as well as
the lack of judicial protection for Maori is surprising in that British imperial policy, the Treaty of Waitangi
and the s 71 of the 1852 Constitution seemed to have been premised on a intercultural and inter-racial
pluralist conception political power in the new colony. This paper argues the development of New
Zealand Constitutionalism with its concomitant incorporation and extinguishment of Maori law and
political authority was affected by Maori political, military and economic competition, and in the minds
of many colonists, obstructionism to economic development and progress. This Maori “threat”, building
on the contradictions inherent in the New Zealand colonial project where Maori were considered both
“nations” and “small and petty savages” and the inconsistency between the dominant racial and cultural
attitudes of the settlers were with the various symbolic acts and legal mechanisms used to interact with
Maori, led the colonial leadership to eschew pluralist legal and political responses which could
“legitimize” non-British authority. This constitutionalism is evident in 19th century case law regarding
Maori treaty and common law rights. The result has been a continued commitment to the constitutional
principle of parliamentary sovereignty and liberalism which precludes the legal efficacy of Maori law
unless incorporated into statute. However the continued Maori presence and the legal and political
commitments towards them as individuals and iwi by the settlers entrenched a continuing political
commitment to Maori and multi-culturalism which has had a moderating effect upon the more harsh
legal implications of a totalising parliamentary sovereignty.
20
Biography
Guy Charlton is a Visiting Associate Professor at City University of Hong where he lectures in Company
Law. He holds a PhD from the University of Auckland, an MA from the University of Toronto and JD from
the University of Wisconsin. His interests include constitutional law and history, settler-indigenous
relations, wildlife law, company law and jurisprudence.
21
Dr Elizabeth Connors
“World Heritage in Danger: Environmental law caught between overlapping jurisdictions
Abstract
In September 2011 the Queensland Government ordered the closure of Gladstone harbour for three
weeks to recreational users and commercial fishers. It was the first public admission of environmental
problems in the harbour which is part of the Great Barrier Reef world heritage area. Local fishers and
the environment movement had been publicly expressing concern since the commencement of the
Western Basin Dredging and Disposal Project in 2010 but by late 2011 disease in all marine life from
crustaceans through to sharks at the top end of the food chain indicated environmental collapse on a
hitherto unforeseen scale. This paper discusses the history of the industrialisation of the harbour and
explores how overlapping legal jurisdictions – state, national and international – have failed to enforce
environmental law to the point where Australia’s biological treasure and tourism industry drawcard, the
Great Barrier Reef, may be declared World Heritage in Danger in 2015.
Biography
Dr Libby Connors is senior lecturer in history at the University of Southern Queensland. She is a co-
author of three books and numerous articles on Australian and Queensland history with a new book,
Brisbane’s Warrior, currently scheduled for publication by Allen & Unwin in May 2015. She is a regular
contributor to Law and History conferences and is currently ANZLHS vice-president.
22
Fiona Davis
Madness across empire: Interwar inquiries into lunacy in Western Australia and the United Kingdom
Abstract
In early 1925 Perth newspaper, the Western Mail reported on the early findings of an inquiry in lunacy
law and institutional reform in the United Kingdom. Patients, it claimed, were being mistreated. “The
fear of having Cotton oil, a drastic purgative, mixed with their food, caused patients to refuse to eat
until forced to by hunger,” the journalist expounded.
Yet when Western Australia had held its own inquiry into "lunacy" three years earlier, the final report
exonerated institutional staff. “The evidence of ex-patients was in many cases found to be heresay [and]
… a gross distortion of fact," the commissioners wrote, made up by 'insane' inmates.
My paper will investigate and compare the two inquiries of this former colony and its metropole. In
particular, it will focus on the legislation and attitudes that shaped their development, the evidence
used and their final conclusions.
Biography
A historian and former journalist, I am investigating how evidence about past social welfare practices is
collected and used - and how this process may be improved. A Postdoctoral Fellow, I operate within the
Historicising Social Policy research team at the Australian Catholic University in Fitzroy, Victoria.
I completed a PhD thesis at the University of Melbourne in 2010 on the Cummeragunja Aboriginal
station. My thesis has now been converted into a book, Australian Settler Colonialism and the
Cummeragunja Aboriginal Station: Redrawing Boundaries, which was published in April 2014 with
Sussex Academic Press.
23
Mr Onofrio Deserio
Creating “accomplished workmen and good citizens”: Apprentice laws and the Factory System in Victoria, 1864 to 1900.
Abstract
During the 1864 election, Edward Cope, a candidate for East Bourke Borough drew cheers from an
audience at the Quarry Hotel in Brunswick. Cope had an answer to the great question of the time: “how
to secure employment for the masses” of the colony. His solution was to place their children in
apprenticeships. He claimed this “would be a far greater step towards the reform of the rising
generation, than all the reformatories” the present government could build. His competitor for the
parliamentary seat, Edward Langton in turn argued the problem was that parents were too quick to
send their boys off to work. Instead of investing in the future prosperity of their children, they preferred
to accept the 2s 6d a week from a menial job than wait for the fruits of the training received through an
apprenticeship.
This presentation examines the thrall in which the English Apprenticeship system was held in Victoria
during the nineteenth century. In doing so it depended on a view of apprenticeships that by the time
legislation was enacted, had become redundant not only in England but also in the developing
manufacturing sector of the colony. In spite of ample evidence that the apprenticeship system was
failing to deliver “accomplished workmen and good citizens”, Victorian Governments showed little
enthusiasm for interfering in what was argued were the private contractual arrangements between
Master and Apprentice.
Biography
Onofrio Deserio is a PhD candidate in History at La Trobe University, examining the regulation of child
and youth employment in Victoria during the nineteenth century. His interest in labour regulation as it
affected children and youths was prompted by research into the Unemployed Girls Schools, established
in Victoria as a response to female unemployment in 1930’s. Onofrio has also undertaken research into
Victorian and Australian censorship laws as they applied in the 1970’s, in particular the claim of the
protection of children to justify the banning of books and magazines. His experience of the legislative
process has included the drafting of an amendment to the Equal Opportunity Act that was debated (and
failed to pass) in the Victorian Parliament in 1999.
24
Caroline Dick
The Mother(land) leads the way: a sumptuary impulse bound up with slouch hats and khaki
Abstract
Many people think of sumptuary law as an archaic form of governmental intervention that targeted the
personal lives of medieval people, and as having no significance in modern times. This paper challenges
these views, and suggests that sumptuary projects were particularly ‘alive’ during the First World War.
This wartime period was one of national crisis and was marked by numerous social and economic
anxieties. The Federal government became intensely preoccupied with national security, the
implementation of wartime measures and the morality of its citizens. This paper argues that these
anxieties and preoccupations were similar to those that prompted the creation of early sumptuary laws.
Throughout the war years, the Australian Parliament was constantly looking to the ‘Motherland’ for
political guidance and moral succour. When the United Kingdom adopted sumptuary measures to
regulate the personal lives of her citizens during the war, the newly established Commonwealth of
Australia closely followed her lead by instituting similar sumptuary measures. This paper argues that the
Anti-Shouting law, which was proposed by the Australian government in the latter part of the war, was
one such sumptuary measure. This proposed legislation not only focused on the wartime control of
alcohol consumption practices but it was also entwined with an impulse for moral regulation that
operated in response to wider governmental concern for Australia’s public well-being and economic
future.
Biography
Caroline has attained a combined degree of LLB & Bachelor of Jurisprudence from University of New
South Wales and a Masters of Law from Sydney University. She also has a Graduate Diploma in
Education. Caroline is a Registered Tax Agent and previously admitted as a Barrister and Solicitor of the
Supreme Court of New Wales and the High Court of Australia. Caroline has worked at various times as a
Barrister and as a Solicitor in her own practice, as a corporate lawyer and as an employed lawyer in both
large and smaller legal firms. Her areas of practice covered Equity, Environmental Law, Property Law,
Commercial Law, Family Law and Probate.
For many years Caroline worked as a casual lecturer in the Law Faculties at various tertiary institutions
including University of Wollongong, UNSW and The College of Law. She has taught Property, Trusts and
25
Equity, Contracts, Taxation Law, Remedies and Procedures and Torts. Caroline now mainly teaches
Taxation Law, Revenue Law, Remedies and Procedure and Contracts. In 2012 Caroline visited INTI
Penang as visiting lecturer in Taxation Law.
Caroline is presently undertaking her PhD in Law at University of Wollongong. Caroline’s thesis topic is:
The sumptuary impulse: protectionism and the regulation of dress in Australia, 1901-1930.
26
Professor Shaunnagh Dorsett
Governing Māori: Models of Governance 1835-1846
Abstract
In the years immediately proceeding and following the formal acquisition of sovereignty by the British
over New Zealand, a raft of models of governance were proposed for Aotearoa / New Zealand. Some of
these are not unknown: for example, British Resident James’ Busby’s proposals based on the Ionian
Protectorate; William Hobson RN (later Governor)’s proposals based on the Calcutta Factory Model;
Governor FitzRoy’s Native Exemption Ordinance and its successor, the Resident Magistrates Ordinance.
Others are less well-known. Many have received some individual exploration. This paper begins the
process of bringing together the various models of governance, in order to explore the myriad of ways
that it was envisaged that Māori could or should be included not just within the formal structure of
sovereignty but, more particularly, within the British legal system. In so doing, this paper seeks to
expose the contingencies of the legal choices made in the late 1830s and early 1840s. The various
proposals show by-ways not taken and remind us that a plethora of arrangements for legal order and
governance were not only possible, but contemplated.
Biography
Shaunnagh Dorsett is Professor of Law in the Faculty of Law at the University of Technology, Sydney and
current President of the ANZLHS. She is a member of the Editorial Committee of both the Journal of
Legal History and law & history, as well as being on the editorial board of a number of other journals.
Her most recent book is Shaunnagh Dorsett, John McLaren (eds) Legal Histories of the British Empire:
Laws, Engagements, and Legacies (Routledge, 2014). Her current project is Lawful Encounters: Māori
and the British Courts 1835-1852, funded by the New Zealand Law Foundation.
27
Dr Anastasia Dukova
Irish Policing Experience on Colonial Soil Abstract
This presentation examines the influence of the Irish policing experience, municipal and rural, on the
formation of the Queensland Police. Prior to the separation of the Irish Free State, Ireland was policed
by the Dublin Metropolitan Police and the rural Irish Constabulary. As a rule, all existing modes of police
organisation adhered to one of the three main models: state civilian, municipal civilian and state military
police (gendarmerie) that were most often found in the countryside symbolising the nation state. Due to
its varied topography the Queensland Police incorporated elements of all three, adapted to the specifics
of colonial needs. The Dublin (and by extension London) Metropolitan Police forces helped shape the
Brisbane Metropolitan Branch of the colonial police, while the paramilitary Royal Irish Constabulary
served as the prototype for organisation of the Mounted or Bush Police. The similarities between police,
both in structure, administration and in the personal experiences of the policemen demonstrated the
profound influence of the Irish experience on the colonial policing system.
The years between circa 1850 and 1900 capture the changing environment of the cities, the frontier line
and the police forces. As the century progressed and urban centres expanded, the demands for more
sophisticated forms of policing grew louder. Population mobility and a steady stream of migrants
throughout the 1840s to 1900s facilitated experience and information exchange within the overarching
context of the British Empire.
Research that informed this presentation relied heavily on respective police internal publications,
manuals, regulations and circulars, along with relevant parliamentary records, professional memoirs and
duty books.
Biography
Dr Anastasia Dukova read History of Crime and Policing at the University of Dublin, Trinity College,
completing her Doctorate in 2012. The project, funded by IRCHSS, investigated criminal activity and
policing systems of Dublin, Brisbane, and London. In 2013, as part of a Postdoctoral Fellowship at the
University of Toronto, Dr. Dukova conducted research into history and development of Upper Canada
municipal police. Research interests: Irish municipal and state policing models (1830s-1930s), colonial
Queensland, Upper Canada, associated justice and penal systems. Anastasia contributes regularly to
Queensland Police Museum blog, From The Vault.
28
Professor Jeremy Finn
Fit and proper but not solvent: the slow development of financial security as a requirement to legal practice in New Zealand”
Abstract
This paper will examine the curious disconnect between the character requirements for legal practice in
New Zealand in the 19th century and financial support stability or security and the slow progression to a
requirement of solvency if an individual was to practice as a barrister or solicitor. The latter was only
imposed by sections 24 and 25 of the Law Practitioners Act 1955. The paper will first consider the
position of a number of 29 identifiable insolvent lawyers in the 19th century, and how they appear to
have been treated by their colleagues and by society generally. It then will examine the circumstances of
the passage of the Law Practitioners Act 1892, which mandated the keeping of separate trust accounts,
and the influential decision of the Court of Appeal in In re Bruges (1907) 26 NZLR 541. The paper then
concludes by examining the reason for the changes made by the 1955 legislation and speculating why
such provisions took so long to materialise and why insolvency has been ignored in writing about the
New Zealand legal profession.
Biography
Jeremy Finn is a Professor of Law at the University of Canterbury, Christchurch New Zealand. A regular
attender at ANZLHS conferences, his particular areas of interest are in New Zealand legal history and
legal histories of the British settlement colonies. He has published a number of articles and book
chapters in these areas. He is currently engaged in a long-term prosopographical project on New
Zealand lawyers admitted before 1881. He also teaches and researches in the fields of criminal law,
criminal justice, contract law, search and seizure and law and natural disasters.
29
Professor Mark Finnane
Policing and Immigration in Postwar Australia
Abstract:
After the Second World War Australian political identity and affiliation shifted from that of colonial
dependency to an emerging recognition of an independent future. The presumptions of a half century of
the White Australia Policy in law, government and policing were challenged by the conditional
commitment to a mass migration program involving a much broader mix of origins. This paper explores
this transition through investigation of the domestic policing of immigrants in postwar Australia. In this
period, state police and federal immigration departments collated huge volumes of information on
immigrants’ arrests and criminal charges, leaving an archive that grounds this research. Federal officials
and social scientists used this information to analyse the effects of immigration on trends in crime,
juvenile delinquency, and mental illness. Our paper examines this new governance of immigration,
evident in the large-scale monitoring, surveillance and investigation of Australia’s post-war migrant
population.
Biography
Professor Mark Finnane is ARC Laureate Fellow and Professor of History at Griffith University. He has
published widely on the history of criminal justice and police, most recently (with Heather
Douglas), Indigenous Crime and Settler Law: White Sovereignty after Empire (Palgrave Macmillan, 2012).
With the support of an ARC Laureate Fellowship (2013-18), he is leading a 5 year project on the history
of prosecution and the criminal trial in Australia.
30
Dr Nicole Graham
Antipodean Law: an environmental critique of Australian legal history
Abstract
Until the late 20th century, the law of Australia was regarded as essentially English. Revisionist legal
historians have contended however that Australian law was not English, but local and therefore
Australian (Kercher (1995), Buck (1995), (1996), (1996), Edgeworth (1994), Dorsett and Godden (1999),
Dorsett and McVeigh (2002)). This paper questions and extends that legal history through the twin
lenses of legal geography and environmental history. The paper argues that Australian law is only
Australian, that is to say local, to the limited extent that local is defined as not-English. In other words,
Australian law is different from English law to the extent that it has been applied differently in Australia
due to material differences. However, although the development of the property laws of England’s
Australian colonies have locally particular histories and functions – these laws remain fundamentally
alien. Taking property law as a case study; using the evidence of environmental history; and adopting a
legal geographical analysis, it is possible to see that, to the extent it has been adapted to Australian
conditions; the law in Australia is demonstrably maladapted (Graham, 2011). Consequently, the paper
argues that Australian law is better understood as being neither English nor Australian, but as
Antipodean: an identity cast not through place but through a space ultimately constructed by and for an
Imperial purpose (Beilharz 1997). The discourse of colonisation is abstract and abstracting, de-
materialising the places over and on which it bases its authority. This account of Australian legal history
seeks to redress that abstraction by incorporating environmental history into a more comprehensive
account of its development.
Biography
Dr Nicole Graham joined the Faculty of Law, UTS in 2009 having taught jurisprudence, property law and
property in natural resources in the Bachelor of Laws and the Bachelor of Environmental Management
degree programs at Macquarie University for which she was awarded University, Faculty, and Law
Student Society Teaching Awards. At UTS: Law Nicole teaches Real Property and Foundations of Law in
the LLB and JD programs, and supervises two PhD projects. Her research explores the relationship
between property and the environment in legal and cultural discourses and land use practices. Nicole is
particularly interested in the role of property rights in natural resource management and environmental
planning policies. She is the author of Lawscape: Property, Environment, Law (Routledge, 2011).
31
Dr Miranda Johnson
Law, Archive, Memory: Indigenous rights on development frontiers
Abstract
In this paper, I examine the production of extensive archives in the context of Indigenous rights claims
on the development frontiers of Australia and Canada. I am interested in how Indigenous leaders,
lawyers, anthropologists, historians, and others collect, transcribe, translate, and narrate, the historical
memories of Indigenous individuals in order to present a coherent “collective identity” for the purpose
of legal claiming. And I am particularly interested in when that coherency breaks down and a “collective
identity” cannot be parsed; for instance when elderly men and women––usually considered to be the
most authentic repositories of community memory––cannot remember what they are being asked to
recall. In drawing attention to the instability and failures of memory, I want to bring into relief the
contradictions of the archiving impulse itself. On the one hand, the archivist hopes that the documents
collected will preserve the past for those in the present and thus the archive will protect a record that
others may make use of in the future. On the other hand, that very aspiration is formed in the face of
loss, at the place of the “originary and structural breakdown of memory” as Derrida puts it.3 When the
subject, asked to remember something for the court, for instance, struggles to put what they embody
into words. The archive is thus a repository of memory as it has been translated, transcribed, and
replaced––as it no longer is.
Biography
I am an historian of indigenous peoples and settler colonialism in the Anglophone post/colonial world,
most specifically in North America and the Pacific. At the University of Sydney, I hold an appointment as
a Postdoctoral Research Fellow in the School of Philosophical and Historical Inquiry, Faculty of Arts and
Social Sciences and in the Centre for Values, Ethics and the Law in Medicine, Faculty of Medicine, as part
of Professor Warwick Anderson’s ARC Laureate Fellowship project, “Race and Ethnicity in the Global
South”. I have previously taught at the University of Wisconsin-Madison and the University of Michigan.
My forthcoming book, The Law is Our History: Indigenous Rights and Self-Determination in Settler
States, examines connected legal cases in Australia, Canada, and New Zealand in which Indigenous
3 Jacques Derrida, Archive Fever: a Freudian Impression, tr. Eric Prenowitz (Chicago & London: University of Chicago Press, 1995): 11.
32
peoples opened up a legal and moral space for the demands to peoplehood and it grapples with the far-
reaching consequences of those demands for settler identity and nationhood.
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Dr Robert Joseph
Māori and the Empire Strike Back – Māori Self-Governance in Colonial New Zealand up to 1889
Abstract
This presentation will discuss the historic demise of Māori self-governance and jurisdiction through
imported laws and institutions from England but will focus on two significant legal developments for
Māori to maintain their tribal self-governance. The first legal development was issued from the Colonial
Office in London to protect Māori self-governance from settler encroachment in the ‘Native Districts’
provision of the New Zealand Constitution Act 1852. The second development was the Māori response
in establishing the Rohe Pōtae geo-political district following the New Zealand Wars in 1864. Both
responses from a Māori perspective were, inter alia, about Māori retaining self-governance in terms of
territorial, personal and subject matter jurisdiction and authority governed by Māori customary law.
34
Mel Keenan
The extension of imperial sovereignty to British New Guinea Abstract
Always keep in your minds that the Queen guards and watches over you, looks upon you as Her
children, and will not allow anyone to harm you, and will soon send Her trusted officers to carry out Her
gracious intentions in the establishment of this Protectorate.4
With these words, Commodore James Erskine of the Royal Navy’s HMS Nelson hoisted the Union Jack in
Port Moresby on 6 November 1884 and proclaimed Queen Victoria’s protection over British New
Guinea. The background to this cosy scene was the fact that, supposedly concerned by the increasing
German presence in the south west Pacific, on 4 April 1883 Queensland Premier Thomas McIlwraith
ordered the Police Magistrate on Thursday Island to formally annex New Guinea and adjacent islands in
the name of the British government. The Colonial Office was unamused, and this unilateral action was
soon disallowed on the basis that a colonial government had no authority to annex other colonies.
However, in the wake of the shock declaration of the German Protectorate over north eastern New
Guinea on 3 November 1884 as Kaiser-Wilhelmsland, British protection over south-eastern New Guinea
was the swift response. Thus, it was not crimson ties of blood, or grand imperial partnerships which
would stir the Colonial Office to action, but being wrong-footed by an economically expansionist Reich.
The reticence on the Colonial Office’s part is evidence of the fact that the establishment of the
Protectorate provides an example of how appeals to the need for ‘British justice’ outpaced the appeal of
the acquisition of new territory; if, in Sir John Seeley’s well-worn phrase, the British Empire had been
acquired in a ‘fit of absence of mind’, New Guinea became part of it very much in spite of the expressed
mind of the Imperial Government itself. Rather it was due to the extension of British sovereignty over
her own subjects, falling clearly within Professor W R Johnston’s categorisation of the south west Pacific
as a ‘paper empire made by lawyers’,5 and prompted by expansionist moves by both colonial
Queensland and Imperial Germany.
Much of British activity in the South Pacific in the late nineteenth century entailed the gradual extension
of legal jurisdiction over erring British subjects - not the least of whom were blackbirders, kidnapping
island workers for Queensland’s sugar plantations. This jurisdiction was brought about by the
establishment of the High Commission for the Western Pacific in the wake of the cession of Fiji to the
4 G Souter, New Guinea: The Last Unknown, (Sydney: 1963), p 62. 5 See his Sovereignty and Protection: a Study of British Jurisdictional Imperialism in the Late 19th Century
35
British Crown in 1877. The original aim of the High Commission was to tread a careful path between
averting British embarrassment in the Pacific and maintaining non-intervention in local affairs.
This paper aims to examine the manner in which territorial jurisdiction over British New Guinea – later
the Australian Territory of Papua – preceded the reality of British presence on the island. In doing so, it
will consider the tensions between the expansionist enthusiasm of Austral-Britons in the colonies and
the innate caution of politicians and civil servants in the British metropolis focussed on the intricacies of
late 19th century geo-politics; the role of the common law as the vanguard of the ultimate expansion of
the parameters of empire; and the continuing influence in the debate over the South Pacific of that
humanitarian strand within British colonial policy traceable back to the abolitionist movement which
had turned its attention to that maltreatment of Queen Victoria’s native subjects that fell short of
outright slavery.
Biography
Mel Keenan is Principal Legal Officer at the NSW Electoral Commission. He is currently undertaking his
PhD in law though Monash University on the topic "The western legal response to sorcery in colonial
Papua New Guinea" under the supervision of Melissa Castan and Guy Powles.
Mel has previously worked in legal/policy roles at the NSW Parliament, the NSW Aboriginal Land
Council and the NSW Law Reform Commission. In what now seems like a previous life, he was a native
title historian in both the Queensland and NSW Crown Solicitors' Offices.
36
Dr Catherine Kelly
Medicine, Patents and Parliament –Intellectual property and the culture of reward in Nineteenth Century Britain
Abstract
The medical methods exclusion from patent protection (MME) is generally said to originate with the
judgement of Solicitor General, Sir Stanley Buckmaster in Re C& W’s Application (1914) in which he
asserted that the medical profession was opposed to the patenting of discoveries intended to alleviate
human suffering.
This paper interrogates Buckmaster’s claim that in 1914 there was a generally accepted ethical position
opposed to the patenting of medical discoveries. In doing so we will establish that the failure of the
medical profession to establish a culture or practice of patenting methods in the century prior to C&W
was more strongly influenced by other factors including a parallel system of rewards for innovation
more suited to the practicalities of medicine during this period. The paper will illuminate the systems in
which medical practitioners participated to seek pecuniary reward for their inventions, and describe
how that participation was significant in the formation of the normative framework governing the
entitlement of inventors to financial compensation. Further, our study demonstrates we must revise our
understanding of the patent system’s evolution in the context of this parallel and complex system of
incentives.
Biography
The paper will be presented by Catherine Kelly, and is co-authored by Robert Burrell (not attending).
After finishing her LLB at the ANU, Catherine worked at Freehills and the Australian Medical Association
before undertaking an MSc and DPhil in the History of Medicine at the University of Oxford. She joined
UWA as an Associate Professor in the Law School in 2012. Her research interests are primarily in the
interaction of legal systems and medicine and science throughout history, particularly the construction
of argument and authority within the medical profession, and in the involvement of legislators in that
process. She is the author of War and the Militarization of British Army Medicine, 1793-1830 (Pickering
and Chatto, London, 2011).
Winthrop Professor Robert Burrell now splits his time between UWA and the University of Sheffield,
where he also holds a Professorial position. Robert’s previous academic positions include posts at the
Australian National University and King’s College London. He has also been a Herbert Smith Visiting
37
Fellow at the University of Cambridge and Visiting Professor at the Benjamin N. Cardozo School of Law in
New York. Robert teaches and researches in the field of intellectual property law, focusing on copyright
and trade mark law. His work has been cited by the High Court of Australia, the Federal Court of
Australia, the Court of Appeal of England and Wales and in an Opinion of an Advocate General to the
European Court of Justice.
38
Dr Christine Kelly
Exporting law to the Empire; Scottish/UK influences on Australian juvenile justice in the nineteenth and early twentieth centuries
Abstract
In 1866 New South Wales and South Australia adopted legislation on industrial and reformatory schools
based on the UK model. The paper analyses the interrelation between the UK approaches to juvenile
justice and the system which developed in Australia over the course of the nineteenth and early
twentieth centuries. But this clear example of exportation of law to the Empire also had a unique
Scottish dimension which has been little researched up to now and the paper will focus in particular on
the connections between the history of juvenile justice in Scotland and the evolution of the Australian
system.
Biography
I am a qualified solicitor and a graduate of the University of Edinburgh (LLB (Hons), Dip. L.P., MSc) and
the University of Glasgow (PhD). I have been awarded a British Academy Postdoctoral Fellowship to
pursue a three year programme of research on the criminalisation of children in Scotland in the period
from 1910 to 1971. The project takes as its starting point my doctoral work exploring the criminalisation
of children in Scotland between 1840 and 1910 and will continue the account into the twentieth century
until the establishment of the children’s hearings system in 1971. This will complete the story more
fully, promising to offer a broader vision of the historical origins of the distinctive Scottish approach to
juvenile justice.
39
Katharine Kemp
The Struggle for the Soul of Australia's First Competition Statute
Abstract
In 1906, Australia enacted its first competition legislation, the Australian Industries Preservation Act
1906 (Cth) (‘AIPA’). In so doing, Australia dramatically departed from the English common law on
restraints of trade and adopted the approach of the novel and controversial US Sherman Act. But not
quite. Concerned that the US had ‘gone too far’ with its statute, Australia’s policy makers smuggled
some comforting qualifications from the English common law into the AIPA. These qualifications would
prove fatal to the prosecution in the Coal Vend Case, the first prosecution under the AIPA and the last
for over half a century.
The Coal Vend Case is often explained as a struggle between the progressiveness of the United States
‘economic’ approach to antitrust, and the determined backwardness of the Mother Country. One
commentator has described the appellate court decisions in the Coal Vend case as adopting ‘naive
economic reasoning’. This paper argues that such explanations interpret events from the current ‘post-
victory’ perspective of US antitrust, and ignore the struggle that existed between classical political
economy and neoclassical economics at the time the case was decided. It is submitted that the real flaw
in the approach of the appellate courts was that they failed to apply logic to the economic theory on
which they relied.
Biography
Katharine was previously in practice for a number of years as a solicitor and later as a barrister. She
worked as a solicitor for Allen Allen & Hemsley in Brisbane and Allens Arthur Robinson (now Allens) in
Melbourne. In 2001, she was called to the Victorian Bar where she practised largely in intellectual
property law and commercial law.
She later spent six years living in South Africa, where competition law became her specialty. There she
worked on a number of high-profile competition law cases, most often as adviser to the Competition
Commission of South Africa.
Katharine was also a sessional lecturer at Stellenbosch University, teaching competition law in
undergraduate and postgraduate courses. She has been the co-author of Competition Law of South
Africa (LexisNexis), with Prof P J Sutherland, for the last eight years.
40
Katharine has degrees in commerce and law from the University of Queensland. She earned her LLM
(cum laude) at Stellenbosch University. She is currently a PhD Candidate at the University of UNSW.
41
Henry Kha
Divorce Law and Public Policy in Victorian England
Abstract
Although divorce law traditionally falls into the category of private law, public policy and morality tend
to exercise a more significant influence upon family law reform debate than in any other area of private
law. The state has generally held a vested interest in influencing the legal consequence of divorce. This is
the corollary of the popular understanding of the public/private dichotomy. In Victorian England, the
prevailing view of the state was one of ensuring each divorced or separated wife was properly afforded
alimony by the husband. The divorce law was structured so that the parties would be financially and
morally responsible for their own welfare and not the state. Moreover, divorce law in Victorian England
was particularly susceptible to the trifecta of public controversy, namely religion, sex and politics.
The paper investigates the interaction between public policy and the introduction of civil divorce under
the Matrimonial Causes Act 1857 in England. The competing demands of the Church of England,
Victorian morality and the campaign for law reform ultimately shaped public policy and in turn the
nature of the nascent English civil divorce system. The enactment of civil divorce in England was
repeated across the British Commonwealth, including in the Australian colonies. Many of the legal and
cultural challenges of the Victorian era divorce law reform debate continue to be present in the debate
surrounding contemporary family law.
Biography
Henry Kha graduated from the University of New South Wales with a Juris Doctor in 2014, where he was
named in the Dean’s List for Excellence in Academic Performance. Henry has also graduated from the
University of Sydney with a Bachelor of Arts (Advanced) (Honours) in 2011. His research interests are in
the field of private law and legal history. He is currently a PhD candidate at the University of Queensland
and is researching the legal development of divorce in Victorian England.
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Professor Diane Kirkby
‘Unfortunate necessities of warfare’: National security and the curtailment of free speech under the War Precautions Act 1914
Abstract
Historians have shown that Australia went to war in August 1914 because of its lingering colonial
relationship with Imperial Britain. They have not however explored how, in its prosecution of wartime
security regulations, it also followed the lead of Britain. In 1914 passage of the War Precautions Act
setting up National Security Regulations made it an offence to make statements that might prejudice
the war effort, particularly the recruitment of men to fight. The threat of prosecution grew more
pronounced during the constitutional referenda campaigns over conscription. The legislation turned the
people holding, or acting on, dissenting ideas into potential criminals and particularly vulnerable were
radical journalists whose livelihood depended on the protection of the right of free speech. This paper
examines the national security provisions of the legislation and the prosecutions, those ‘unfortunate
necessities of war’, thereby generated.
Biography
Professor Diane Kirkby is a Professor in the School of Humanities, Faculty of Humanities and Social
Sciences, La Trobe University. Professor Kirkby currently teaches USA Art and political cultural history;
Australian history centuries; history of Food and Drink; film in history. Her research interests include:
Labour history and gender; Women's work and popular culture; law and history; feminism. Professor
Kirkby won the WK Hancock Prize for her book Alice Henry: The Power of Pen and Voice.
43
Sally Low
Disputing Jurisdiction: French Colonial Power and Cambodian Courts 1904-1920
Abstract
‘[U]nder the regime of the King, my Father, as well as that of my Brother … the highest jurisdiction of the
Kingdom has always been presided over by a Prince … [your predecessor led me to understand that] this
post could be reserved for members of the Royal Family.’ 6
This letter from King Sisowath of Cambodia, written in 1914 to the head administrator of the French
Protectorate, Résident Supérieur Francois Baudoin, referred to the position of President of the Court of
Cassation (Sala Vinichhay), which had previously been occupied by a prince. The court was established
in 1912 as part of a restructuring of Cambodian judicial administration. 7
Drawing on previously unexamined colonial archives, my paper will consider three instances of the
reaction of the Cambodian elites to French re-structuring of their jurisdiction. I will argue that although
the French succeeded in taking control of the Cambodian courts and judiciary, the response of the
Cambodian King, Council of Ministers, judges and provincial governors, combined with French
dependence on these very elites to legitimise and administer their domination, influenced the form and
practice of colonial jurisdiction.
In this process, jurisdiction can be examined according to the three registers posited by Shaunnagh
Dorsett and Shaun McVeigh8: giving form to and bringing into being legal and political authority;
ordering and crafting legal relations and legal beings; and interrogation of the quality of those
relationships. Jurisdiction is considered as a process rather than a static set of norms. 9
As a Protectorate, rather than a directly annexed colony, Cambodia was said by some French jurists to
be under dual internal sovereignty. 10 Jurisdiction played an important role in the process of attrition
and ultimatums that saw French sovereignty expand at the expense of Cambodian. The 1863 Treaty of
Protection established extraterritoriality for French citizens and joint Cambodian-French adjudication of
mixed cases. By 1897 the French jurisdiction had expanded to include most Europeans and ethnic
6 Letter from His Majesty the King of Cambodia to the Résident Supérieur, 17 June 1914, National Archives of Cambodia (NAC), collection of the Résident Supérieur du Cambodge (RSC), 12715. Translation by the author. 7 Kingdom of Cambodia, Code d’Instruction Criminelle et d’Organisation Judiciaire, 1911 8 Dorsett, S.G. & McVeigh, S. 2012, Jurisdiction, Routledge, Oxford 9 Dorsett and McVeigh, summarized at 132-137 10 The Treaty of Protection between France and Cambodia was signed in 1863. In 1887, the colony of Cochinchina, the protectorates of Annam, Tonkin, Laos and Cambodia, and the French possession of Kuong Tchéou in Southern China were formally incorporated as the Union indochinoise or French Indochina.
44
Vietnamese and Chinese, who made up 15 per cent of the population, and all mixed cases. Significantly,
however, in the wake of widespread rebellion in 1885-6, the Cambodian jurisdiction survived, albeit
restricted to those considered by the French to be ethnically Khmer (Cambodian).
The colonial administration set about re-structuring the Cambodian jurisdiction after the crowning of
King Sisowath, who, due to his support for the French, succeeded his more recalcitrant brother,
Norodom, in 1904. During the next two decades, administrative and judicial institutions were
transformed to suit French political and economic needs. Laws and courts were structured to more
closely fit the colonial power’s conception of what was rational and acceptable.
This re-forming of the Cambodian jurisdiction both established and expanded colonial control.
Technologies such as codified laws introduced French-inspired substance, procedure and judicial
hierarchies, imposing French domains of knowledge and crafting legal relationships of tutelage and
domination. Nevertheless elite Cambodian reactions affected the pace and practice of these changes.
Biography
Sally Low is a doctoral student enrolled in the School of Law, (Asian Law Centre) University of
Melbourne, Australia. She has had a long association with Cambodia, starting in 1993. She holds legal
qualifications and has worked in law and development in a number of Southeast Asian countries since
1997. From 2010 to 2012 she was the Cambodia Country Manager for a research program comparing
local reactions to donor funded court reform programs in Cambodia and Vietnam.
45
Dr Trish Luker
Animating the Archive: Legal Sources and the New Materialisms
Abstract
In the wake of the ‘archival turn’ in humanities scholarship, disruption of the epistemological premise
that a document is tantamount to evidence of its content has resulted in greater attention to the
historical and social context of its creation, its purpose and audience, as well as the subjectivity of the
creator. Furthermore, recognition of oral forms of historical record has contributed to legitimation of
previously excluded historical subjects. This reading against the grain has resulted in questions about
what has not been preserved and what is omitted from the record, as well as what resists being
archived, all of which contributes to historical understanding.
However, there has been less attention to the materiality of the archive – questions about the vitality
and effects of things and how objects, such as are found in archives, make up cultures and produce
pasts. In this paper, I will outline some lines of investigation pursued during my recent foray into the
field of new materialisms, an approach, as Jane Bennett puts it, where we may consider the ‘curious
ability of inanimate things to animate, to act, to produce effects dramatic and subtle’ (2010: 6). Is it
possible, for example, to take this ‘thing power’ and attribute to archival sources a force of their own, an
agentic capacity? Could we say, following Bruno Latour, that in law, evidence may be an actant, because
it is defined by how it acts, and that it may be granted signification which is not entirely reducible to the
semiotic?
The paper draws on preliminary research in a project which aims to contribute to interdisciplinary
scholarship in the fields of law and history. It is concerned with jurisprudential approaches to the use
and interpretation of archival records and other historical documents as sources of evidence and proof
in law.
Biography
UTS Postdoctoral Research Fellow, Faculty of Law, University of Technology, Sydney
46
Dr Nepia Mahuika
Driving out the Devil: Critiquing Māori, Witchcraft, Law and the Empire
Abstract
MahuIn early 1887, Apihai Tangi was accused of vagrancy at the Whangarei Court in the far north of the
North Island of Aotearoa New Zealand. Reporting on the incident local constable Thomas Inger deposed
that he had removed Tangi from the clutches of two hundred ‘excited natives’ intent on ‘driving out a
Tipo’ or devil, and informed them that ‘the law didn’t believe in witchcraft.’ Shortly after, Haura Arika
and Raumunga Maruhera, were arrested and charged with unlawful assault for allegedly ‘throwing
Apihai Tangi down, binding his hands and feet, tying him to a tree, and threatening to murder him.’
Cases, similar to this, that deal with makutu (“witchcraft”) provide nuanced examples of how indigenous
Māori have long negotiated the law in conjunction with their own evolving knowledge systems. This
paper explores and reveals the collisions between legal, traditional, cultural and political, beliefs and
practices. It engages with the ways in which Māori understandings of criminality and the law have
regularly been connected to spiritual ideas that invoke contemporary tikanga (Māori law) relevant to
human behaviour and ethics. The paper covers a broad array of ‘incidents’ from a variety of nineteenth
century examples to the recent exorcism and murder of Janet Moses in 2007. “Driving out the devil”,
then, much more than simply a cleansing of the tortured soul, invokes the idea that through the law
Pākehā and many Māori sought to exorcise the ‘uncivilised’, ‘superstitious’, and ‘savage’ native. This
vanquishing of the ‘backward heathen’ relied on a discursive narrative of progress that encouraged
Māori to become good civilised citizens. What, then, has been the Māori response at these moments of
collision, where the law, empire, and indigenous desires to remain empowered, intersect?
Biography
Nēpia is a Ngāti Porou descendant and scholar. He lectures in History at the University of Waikato, and
specialises in research on Māori and indigenous history, oral history, New Zealand history, and history
and theory. He has research interests in nineteenth century Māori legal histories, histories of indigenous
political thought, martial arts, witchcraft and murder. He is the current chair of the National Māori
Historians Collective of Aotearoa New Zealand.
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Rangimarie Mahuika
‘Ka haere whakamua me hoki whakamuri’: The Past, the Present, and Future Aspirations for Ngāti Rangiwewehi Governance
Abstract
The proverb from which this paper takes its title asserts that we “move into the future by looking to the
past.’ This encapsulates an important epistemological understanding for many Indigenous peoples: that
the future must always be shaped by the wisdom and understanding of ancestors and the lessons of the
past. This paper, examines specifically selected historical manuscripts relevant to Ngāti Rangiwewehi,
scribed by tribal leaders such as Wi Maihi Te Rangikaheke, Wiremu Hikairo and Matenga Te Waharoa in
a consideration of the values and traditions which inform Ngāti Rangiwewehi understandings of
governance. In conjunction with contemporary oral recordings the paper compares and contrasts pre
and post empire tribal governance principles with those identified by the Office of Treaty Settlements as
necessary criteria in the establishment of Post-Settlement Governance Entities. It draws specifically on
the writing and insight from those who governed the tribe in the wake of the invading British Empire.
There is now a steadily growing body of literature – both from past records, and today - which
demonstrates the importance of ‘cultural match’ within effective Indigenous governance bodies, and
the significant influence of culturally-based values and traditions on our understandings of what makes
good governance. The domain of Māori Tribal Governance therefore provides a useful context to
consider these issues, as traditional governance practices have been routinely ignored, considered
inferior to those imported from the Colonial Empire. This paper explores the notion of governance as it
applies to the retaining of traditional tribal knowledge and values in the establishing of post-settlement
governance bodies. With a focus on Ngāti Rangiwewehi aspirations, history, and politics, related to self-
determination, this paper focuses on the question: how can tikanga and tribal conceptions of
governance exist within the legal machinery created and controlled by the ‘colonisers’? In this light the
paper argues that within the New Zealand context the Crown must more adequately address their
history of cultural bias before it can appropriately provide the space and support for Maori and iwi
perspectives on how we might best govern ourselves.
Biography
Rangimarie is Ngāti Rangiwewehi. She is a Doctoral Candidate in Te Piringa Faculty of Law at the
University of Waikato. Her research focuses on indigenous governance entities, and looks particularly at
48
the production of post-settlement governance structures that seek to retain traditional Māori practices
and mātauranga.
49
Dr Bevan Marten
A history of the admiralty jurisdiction in New Zealand, 1840-1863
Abstract
Despite it involving what instinct suggests would be important disputes for a 19th century colony, the
beginnings of the admiralty jurisdiction in New Zealand were haphazard. Although successive
Governors-General were appointed Vice-Admiral, the appointment of deputy judges appears never to
have been formalised at the imperial level, and thus the jurisdiction was exercised on questionable
foundations for almost two decades. A meeting of NZ judges in Auckland in 1861 involved their
requesting intervention from the Admiralty law officers in London, and an Act of 1863 ultimately
legitimised their position retrospectively. In the meantime a number of cases had been heard in both
New Zealand and New South Wales involving New Zealand-related shipping matters. This paper will
discuss this haphazard evolution, with the author reporting on the research he has undertaken to date
in New Zealand, Sydney, and London.
Biography
Bevan Marten joined the Law Faculty of Victoria University of Wellington in August 2012, having
completed his doctoral studies in Hamburg. During his years in Germany, Bevan was based at the Max
Planck Institute for Comparative and International Private Law on a scholarship from the International
Max Planck Research School for Maritime Affairs. Prior to this he completed an LLM at the University of
Cambridge as a Commonwealth Scholar, obtaining a first, as well as the Leonard Coling Scholarship and
Lyndon Stanford Prize from Sidney Sussex College. Bevan worked for three years as a solicitor at the
Wellington firm of Izard Weston, where he specialised in litigation and maritime law. In his final year as
an undergraduate at VUW he was the Student Editor-in-Chief of the Victoria University of Wellington
Law Review (VUWLR). Bevan’s primary research interest is in maritime law, in particular the
international and regulatory aspects of this field. He has recently published a monograph on Port State
Jurisdiction and the Regulation of International Merchant Shipping (Springer, 2013), and is currently
undertaking a project on the history of New Zealand’s vice-admiralty jurisdiction in the mid nineteenth
century. In addition to maritime law Bevan teaches in the torts and property law courses.
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Professor John McLaren
The Common Law of Torts in Canada: The Economy, Environment and Quality of Life, 1900 to 1950
Abstract
In this paper I try and open up connections between the ill-fated attempts of the British to govern and
administer justice in Palestine Mandate between the World Wars and beyond, and their handling of the
governance of Ireland between 1910 and 1921. I use those connections to assess the turbulent judicial
career of Sir Michael McDonnell, Chief Justice of Palestine, 1927-1936. Was he simply motivated by anti-
Zionist or even anti –Semitic sentiment, or were his pro-Arab inclinations a reflection of long-standing
opposition to partition and separation of populations as a political and legal solution to ethnic, cultural
and religious tensions within colonies?
Biography
51
Mr Cameron Moore
The External Affairs Prerogative And The Australian Occupation Of German New Guinea: 1914-1921
Abstract
The Commonwealth’s first action in the Great War was the occupation of German New Guinea between
1914 and 1921. Despite subsequent occupations in Somalia in 1993 and East Timor in 1999/2000, this
operation remains the most extensive use of the external affairs power in terms of the length of time,
geographical scope and the breadth of the powers exercised. This operation is also important because it
occurred before the external affairs prerogative was thought to have passed from being exercisable by
the Imperial Government to the Commonwealth Government. Even with this extensive exercise of
coercive powers, there is less positive legal authority to support them than there is for war. The main
distinction between such operations and war is that they do not involve combat against an enemy, the
war prerogative is not applicable and there is no doctrine of combat immunity. The use of force is that
required for self defence and mission accomplishment, essentially a law enforcement approach.
Act of State Doctrine would most likely be the principal plea in response to claims against the Crown
arising from exercises of the external affairs prerogative. This paper will consider the possible sources
of, and limitations upon, this prerogative power for the Commonwealth occupation at the time. Was it
an imperial prerogative exercised on behalf of the King? If so, how did that authority pass to the naval
and military forces of the Commonwealth? As there was no Australian authority for a coercive use of the
external affairs prerogative, it is only possible to argue that the operation was lawful through reference
to English case law on Act of State doctrine and the prerogative power for external affairs, as informed
by legal history.
Biography
Cameron joined the School of Law in 2005. His practice experience includes six years as a Navy legal
officer, as well as private practice.
Cameron's teaching, research and supervision interests are Executive Power, Environment Law, Law of
the Sea, International Law, the Law of Armed Conflict and Military Law.
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Mr Peter Moore
An Office of Barrister in British Colonies?
Abstract
The NSW Supreme Court’s admission rules, 1824-34, treated all lawyers alike. Barristers, arguably,
became ‘officers of court’ like the attorneys certainly were. Barristers were, just as arguably, relieved by
the professional division of 1834 from what they felt as the stigma of being treated the same as
attorneys, and ceased to be holders of an ‘office’. At issue was the degree of control that the Court
could exercise over their standing as advocates in the Anglo-Irish tradition. Now, the first person to be
struck off the Supreme Court Roll after the 1834 division was a barrister. This was done at the behest of
other barristers, and by exactly the same procedure and pleading practised by the superior courts in
England to discipline attorneys.
South Australia and New Zealand took different views though with much the same result. When it came
to their Supreme Courts’ discipline of lawyers, the distinction between barristers and attorneys did not
appear to matter.
However, there is a further argument that, in terms of the rhetoric of office, barristers remained office-
holders whether they liked it or not. This was in spite of black-letter statutes and admission rules, and
the greyer area of received law. Or was it?
Biography
Peter Moore is a former South Australian practitioner and is currently a doctoral candidate at UTS
working on legal professional culture in NSW, SA and NZ, between 1834 and 1861.
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Dr Grant Morris
The historiography of legal biography in New Zealand
Abstract
An impressive number of political biographies appear in New Zealand’s more recent historiography yet
few academic legal biographies exist. Peter Spiller’s The Chapman Legal Family (1992), Alex Frame’s
Salmond: Southern Jurist (1995), Janet November’s in the footsteps of Ethel Benjamin: New Zealand’s
first woman lawyer (2009) and Grant Morris’ Prendergast: Legal Villain? (2014) are the more recent and
comprehensive models available to the New Zealand legal historian. The Chapmans, Salmond and
Benjamin are all legal figures widely admired by the present generation. Prendergast’s current
reputation is largely negative, posing a different challenge to the legal biographer. This paper results
from the presenter’s recent experiences in publishing a legal biography and explores three key issues.
Firstly, what has been the nature of legal biography in New Zealand over the past hundred years?
Secondly, the paper will explore the reasons for the limited amount of scholarship in this area. Finally,
suggestions as to how to increase scholarship will be provided.
Biography
Dr Grant Morris is a Senior Lecturer in Law at Victoria University of Wellington. He joined the Faculty of
Law in 2002. Grant specialises in legal history, negotiation and mediation, Treaty of Waitangi issues and
law and literature. He is the author of Law Alive: The NZ Legal System in Context (OUP) and Prendergast:
Legal Villain? (VUP) and is the recipient of a Victoria University ‘Excellence in Teaching’ Award.
54
Dr Pamela O’Neill
“Empire's Law and Law's Neighbourhood: how much does the imperial background of Donoghue v Stevenson matter?
Abstract
Donoghue v Stevenson is not an English case: it fell within the somewhat different legal system of
Scotland, and was presided over by Law Lords of whom only the minority were English. It may therefore
be open to characterisation not as an instance of the imperial head (England) imposing its own law
throughout the empire, but rather as exemplifying a process by which legal thinking developed in one
part of an empire is transmitted to other parts, including the imperial head. This paper investigates the
extent to which the outcome of Donoghue v Stevenson was influenced by its imperial context. It asks
whether the Welsh-Australian Lord Atkin's famous neighbour principle would have been established had
it not been for the unique cultural context of the early 20thcentury British empire.
Biography
Dr Pamela O'Neill is an honorary research associate in Celtic Studies at the University of Sydney, where
she has also obtained postgraduate degrees from the Arts and Law faculties, and an adjunct lecturer in
the University of New South Wales Global Irish Studies Centre. She has published widely in Celtic Studies
and legal history, particularly early Irish law.
55
Professor John Orth
The Rule Of Law: “A Concept Of The Utmost Importance But Having No Defined, Nor Readily Definable, Content”
Abstract
When the Massachusetts Constitution of 1780 proclaimed a “government of laws and not of men” it
was restating an ideal that stretched back to the earliest days of the common law tradition. Whether
expressed as government “per legem terrae” (according to the law of the land) as in Magna Carta or “by
due process of law” as in the Fifth and Fourteenth Amendments to the United States Constitution, the
ideal seeks to subordinate the exercise of power to known rules and orderly procedures. The
fundamental difficulty with its realization is that “law” is not a disembodied force that can constrain a
nation’s rulers. Institutional arrangements such as written constitutions and the separation of powers
are useful, but the primary guarantee of the rule of law, as opposed to the unconstrained rule of the
powerful, is the development of a professional ethos that enforces the separation of individual
preference and desire from the professional performance of duty.
Biography
John V. Orth is William Rand Kenan, Jr. Professor of Law at the University of North Carolina, where he
teaches basic and advanced property law and legal history. He has a law degree and Ph.D. in history
from Harvard University. He is the author of six books, most recently Reappraisals in the Law of Property
(2010). He is the author of over seventy law review articles and book chapters on constitutional law,
property law, and legal history. He is a contributor to The American National Biography, The Oxford
Companion to the Supreme Court of the United States, The Oxford Companion to American Law, The
Oxford International Encyclopedia of Legal History, The Yale Biographical Dictionary of American Law,
and other legal reference works. Professor Orth’s publications have been cited by federal and state
courts, including the United States Supreme Court and the North Carolina Supreme Court. Professor
Orth is the recipient of a University award for excellence in post-graduate education.
56
Mr John Page
The Shared Legal Discourses of Grazing Rights Regimes
Abstract
In the first-half of the 20th century, economic and environmental exigencies in the ‘back country’ of
New Zealand and the rangelands of the western United States resulted in the emergence of sui generis
grazing rights regimes that bore strong similarities in their effect, yet distinctive differences in their form
and substance. The property rights that arose spoke to a legal discourse that resonated in two related
common law jurisdictions, rationales familiar to ‘settler’ societies with frontier imperatives.
This paper compares and contrasts the formative influences of the 1934 Taylor Grazing Act in the United
States, and the 1948 Land Act in New Zealand. The shared narratives, common legal geographies, and
analogous histories of these two grazing regimes are examined, informed by diverse sources including
the 1920 Royal Commission into the Southern Pastoral Lands in New Zealand, and the personal papers
of the first U.S. Director of the Grazing Service, Farrington Carpenter.
Biography
John Page is a senior lecturer at the School of Law at Southern Cross University. He has previously
worked at the University of New England and Bond University. John has presented at ANZLHS
conferences in 2008, 2009 and 2011. His research interests are in property rights in diverse contexts:
geographic, historic, and contemporary.
57
Ms Carolyn Penfold
The continuing influence of colonial history on South Pacific law.
Abstract
This paper demonstrates that it is not simply legal history which shapes law in post-colonial societies, it
is history more generally. Hence education systems which imitate colonial ones, and which value foreign
ways over indigenous ways, ensure that contemporary local law continues to be heavily influenced by its
colonial history. In addition to obvious colonial imports such as legal systems, legal institutions, and
specific laws imposed, adopted, or copied from colonial powers; the way the law is taught, applied and
interpreted are all still shaped to a great degree by colonial history.
A study of over eighty lawyers in the Melanesian countries of Vanuatu and Solomon Islands provides
insight into the continuing importance of colonial history in the contemporary legal environment.
Although both countries have been independent for close to forty years, colonisation continues to
influence not just ‘the’ law and legal institutions, but everything about law. The study shows that
colonial history still constrains the use of kastom law for example, although kastom is constitutionally
protected as a source of law in both jurisdictions.
This paper argues that the continued colonial system of legal education, which focuses almost entirely
on formal law, hinders the development of local legal systems, legal institutions, and laws themselves,
and constrains the development of recognised and respected local alternatives.
Biography
Carolyn Penfold is Head of School at UNSW Law. Following two years living and working in the Pacific,
and teaching law at University of the South Pacific, she is currently undertaking empirical research on
legal education in Vanuatu and Solomon Islands.
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Dr Alana Piper and Ms Lisa Durnian
Theft on Trial: Prosecuting Property Crime in Colonial Australia
Abstract
Tales of thievery dominate Australian history and culture. Between memories of convict ancestors and
the theft of land from Indigenous peoples, through to the continuing popularity of Ned Kelly and
Waltzing Matilda, stealing forms an integral part of the colonial story. Yet while offences against
property represent one of the most pervasive forms of criminal activity, it remains an under-researched
area in Australian historical scholarship. This paper will draw on detailed inter-jurisdictional research to
elaborate trends in the conviction and sentencing of theft in colonial Australia. In particular, we shall
consider the influence of a variety of factors on the outcome of theft trials in order to elucidate the
expectations that needed to be met to ensure conviction. By addressing this issue, we will examine the
way attitudes to theft and the protection of property were affected by colonial conditions, and the
distinctive fears produced by larcenous acts within the colonial context.
Biographies:
Alana Piper is a Postdoctoral Research Fellow at Griffith University, appointed as part of the ARC
Laureate Project ‘Prosecution and The Criminal Trial in Australian History’. Her current project looks at
theft-related trials and issues of identity across the years 1861-1961. Alana completed her PhD at the
University of Queensland in January 2014, with her thesis examining relationships between women in
criminal subcultures in the late nineteenth and early twentieth centuries. She has published in History
Australia, Journal of Australian Studies and Queensland Review.
Lisa Durnian graduated from the University of Queensland with first class honours in criminology in
2013. Lisa joined the School of Criminology and Criminal Justice at Griffith University as an ARC Laureate
PhD candidate with the Prosecution Project. Her doctoral research will identify the structural
mechanisms that led to system transformation in criminal trials; that is, the shift from traditional jury
trials to the current phenomena where most criminal matters end in guilty pleas.
59
Dr David Plater
The ‘Gentle Art’ of Poisoning, Females and Murder in 19th Century Britain and Australia: ‘Assuredly there never was Murder more Foul and Most Unnatural’?
Abstract
This presentation considers the perception and reality of crimes committed by women involving the use
of poison upon their husbands in 19th century Britain and colonial Australia. Though poisoning by
women in Britain in the 1800s has been the subject of much study, this issue has largely escaped
academic scrutiny in respect of colonial Australia. This presentation examines if, and to what extent, the
British perceptions and experiences of female poisoners of the 19th century was translated in the
context of colonial Australia
Though the ‘gentle art of poisoning’ can be traced to antiquity, it was in the 19th century that crimes of
poisoning emerged as a source of major and recurring concern in both Britain and colonial Australia.
Though such crimes were viewed with general abhorrence, it was the notion of the supposedly devoted
wife stealthy poisoning her unsuspecting husband that struck an especially deep chord in 19th century
society The ‘veritable fiend in human guise’, her crimes committed ‘under circumstances that indicates a
truly devilish combination of hypocrisy and treachery’ was one that aroused particular revulsion,
‘assuredly there never was murder more foul and most unnatural’.
It might be thought that, in light of this polarised perception, women accused of poisoning their
husbands could expect an uphill task within the male dominated criminal justice system of the period in
escaping conviction and, if convicted, they were unlikely to be regarded with sympathy and as worthy of
the grant of mercy. However, this presentation suggests that the reality in both Britain and colonial
Australia was more subtle and complex than the hostile and often exaggerated perception of female
poisoners might indicate. Women accused of even capital crimes involving the use of poison upon their
husbands had every expectation of acquittal and, even if convicted, such offenders were often regarded
with sympathy. It was far from inevitable that even the worst female poisoner of the period would
receive the ‘extreme penalty of the law.’
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Biography
David Plater graduated from Monash University with a Bachelor of Arts and a Bachelor of Laws. He
completed a Master of Laws in Criminal Litigation at the Inns of Court Law School in London. He
obtained his PhD in 2011 at the University of Tasmania. His thesis examined the historical and modern
development of the role of the prosecution lawyer in England and Australia. His thesis asked whether
the notion of the "minister of justice" has outlived its usefulness. He has wide practical experience as a
lawyer in criminal law in both England and Australia. He is admitted as a barrister and solicitor of the
Supreme Courts of the Northern Territory, Tasmania and South Australia. He is also admitted as a
solicitor of the Supreme Court of England and Wales and as a solicitor of the High Court of the Republic
of Ireland. He has worked as a Crown Prosecutor in England with the Crown Prosecution Service in
London at the Youth and Inner London Crown Court branch of the CPS. He has also worked with the
State DPP in South Australia. He still works as a legal practitioner in Adelaide. He is an Adjunct Lecturer
at the Faculty of Law at the University of Tasmania and a Lecturer at the School of Law at the University
of South Australia. He lectures in Criminal Law, Criminal Procedure and Sentencing, Evidence and
Advocacy. David has a strong interest in Morris dancing, Commonwealth and Australian Legal History,
the exercise of the death penalty and prerogative of mercy and perceptions of crime and gender in the
19th century.
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Ms Janine Rizzetti
The Judge, The Special Magistrate And The Protector: The Clash Of Colonial Office Policy, Local Politics and British Law
Abstract
During the 1830s and 1840s metropolitan humanitarian lobby groups exerted their pressure most
directly on two Colonial Office policy areas: the introduction of the Apprenticeship in former slave
colonies after the abolition of slavery in 1834, and the extension of British justice to interactions
between settlers and indigenous people on the frontiers of British settler colonies. In response, the
Colonial Office directly appointed special magistrates from Britain as a way of circumventing the
prejudices of local colonists in the administration of justice. Much of the work of these magistrates was
conducted directly with the people in their charge, but on occasion cases in which they had been
involved came before the superior court. The Special Magistrates and Protectors were already heavily
criticized by local planter and settler interests, and the Supreme Court judges brought yet another level
of scrutiny to their actions. This paper examines two cases brought before Justice John Walpole Willis
whose colonial career spanned three colonies between 1827 and 1843. The first, in British Guiana in
1835, involved the challenge to the authority of Special Magistrate Ross by plantation manager M. G.
Van Der Pant when he was charged with illegally confining an Apprenticed Labourer to the stocks. The
second, in Port Phillip, involved a charge of shooting with a firearm with intent to kill, brought against
Sandford George Bolden through Aboriginal Protector Charles Sievwright in 1841. Both cases gave rise
to conflicting discourses involving the policy intentions of the Colonial Office, local political agitation on
the part of colonists, the particular legal stance of the controversial Justice John Walpole Willis and the
demands of British justice.
Biography
Janine Rizzetti is a doctoral candidate in the School of Humanities at La Trobe University. Her thesis,
titled “Follies and Consequent Disasters: The Unsuccessful Colonial Career of Justice John Walpole
Willis” examines the career of this controversial judge in the colonies of Upper Canada, British Guiana
and New South Wales.
62
Dr David Roberts and Dr Lisa Ford
“’Mr Peel’s Amendments’: Imperial criminal reform in New South Wales
Abstract
In 1828, Chief Justice Forbes presided over a particularly busy criminal session, in which he tried about
70 cases and handed out 30 capital convictions. But he did so on the basis of English criminal statutes
which were now of uncertain status in the colony. First, it was not clear to everyone at home or in the
colony that New South Wales had formally ‘received’ British law. Second, and much more importantly,
some of the statutes Forbes relied upon had been repealed as part of a modest process of consolidation
and mitigation of England’s notorious ‘bloody code’ spearheaded by Tory minister Robert Peel.
The result was a constitutional dilemma with legal, political and moral dimensions. In this paper we
explore the controversy over Forbes’ 1828 sentences in the colony of New South Wales. We argue that
the dispute not only revealed pervasive (and hitherto unexamined) uncertainty about the relationship
between metropolitan repeal and colonial law after 1824, it also raised very important questions about
the nature of colonial legal subject hood in New South Wales and elsewhere in the expanding empire.
Biography
David Roberts, Senior Lecturer at the University of New England, has authored more than 30 articles on
nineteenth-century New South Wales, and, with Martin Crotty, edited the well-known collections,
Turning Points in Australian History and The Great Mistakes of Australian History. His recent work has
been funded by an ARC Discovery Project Grant, titled 'Liberty, Anti-transportation and the Empire of
Morality' [DP1096538] with Prof HM Carey.
Lisa Ford, Senior Lecturer at the University of New South Wales is author of Settler Sovereignty (Harvard
2010). This paper is based on work funded by two ARC projects, Convicts, Empire and Order (2011-2013)
and Protecting the Peace (2012-2018).
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Mr Eugene Schofield-Georgeson
‘Mad’ Edwin Withers and the Struggle for Fair Trial Rights at Parramatta
Abstract
Edwin Augustus Withers was an intellectual and an eccentric. He was the proprietor of a working-class
coffee-house in Parramatta in the 1840s. From the day he protested his illegal conviction for a
misdescribed charge, to the day he was released from Tarban Creek Lunatic Asylum by writ of habeus
corpus, Withers wagered his life, sanity and liberty for the advancement of fair trial rights in New South
Wales. He consistently battled the magistracy and advocated on behalf of other working-class ‘prisoners
of the Crown’, receiving coverage of his outbursts and protest in Edward Mason’s Parramatta Chronicle
and The Star & Working Man’s Guardian. Withers changed procedure at the level of Magistrate’s and
Quarter Sessions Courts. But more importantly, his specific demands shaped key amendments to the
adoption in the Colony of the Jervis Acts – one of the most important procedural reforms to criminal law
throughout the 19th Century.
The story of Withers and his social activism in respect to procedural law is one of many that are
currently being uncovered in the course of a broader research project exploring criminal procedure and
colonialism in NSW. These cases provide examples of radical possibilities for “bottom-up” social change
from within a hegemonic rule of law. This approach to historiography integrates Legal History with
Social History. Accordingly, it shows that the experience of the criminal law by colonised people was not
passive. Rather, by examining specific episodes of resistance within the Court-room, it is clear that
colonised people often emancipated themselves from certain forms of repressive procedural law. This,
in turn, enables contemporary lawyers and historians to better understand the importance of
apparently abstract criminal procedure law.
Biography
Eugene Schofield-Georgeson has practiced as an industrial lawyer in Sydney and a criminal lawyer with
Aboriginal legal aid in the Northern Territory of Australia for some years. He is a current PhD candidate
and sessional academic at Macquarie University in Sydney and continues to represent socially
disadvantaged criminal defendants with the Legal Aid Commission of New South Wales.
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Armanda Scorrano
Punishing the Poor or Protecting the Vulnerable? Early Judicial Approaches to Child Abuse and Neglect in England and New South Wales
Abstract
In most contemporary societies, children are seen as vulnerable beings deserving of special protection
by the state. The development of child protection legislation, beginning in the second half of the
nineteenth century, is well documented. Yet before the different parliaments began drafting child
protection statutes, cases of child abuse and neglect surfaced in the courtrooms of jurisdictions
throughout the British Empire. As part of a larger project exploring legal constructions of motherhood in
various British colonies, this paper examines judicial approaches to child abuse and neglect during the
late eighteenth and early nineteenth centuries in England and New South Wales.
Biography
Armanda Scorrano is a legal historian at UTS. She is a Visiting Scholar in the Faculty of Law and teaches
in the Communications program in the Faculty of Arts and Social Sciences. Her research interests include
feminist legal history, nationalism, and national identity. Her recently completed PhD addresses issues
surrounding national representations in Australian museums. She has published in the Journal of
Australian Studies and Public History Review, and is coauthor of the ‘People’s Park’: Centennial Park, A
History (with Paul Ashton and Kate Blackmore).
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Professor Louis Sicking
Funduqs, feitorias, factories. The Institutional Foundations of Overseas Trade or the Globalisation of a Concept.
Abstract
How did European merchants organize their trade over long distances? What means did they have at
their disposal? How did they cooperate and reduce their risks in a world full of danger in the form of war
and violence? A particular kind of institutions contributed importantly to the organisation of overseas
trade: funduqs, fondacos and feitorias which originated around the medieval Mediterranean. These
institutions provided merchants overseas with all kinds of rights and facilities. Besides legal protection
these institutions offered lodgings, inns and taverns, warehouses, ovens, baths, brothels and chapels.
How did these institutions develop in the course of time, what role did they play in international trade
and how did they affect cross-cultural contacts, such as between Muslims and Christians in North
Africa? Olivia R. Constable has studied ‘the diffusion of this institutional family’ from Late Antiquity to
the end of the Middle Ages in her ground breaking Housing the Stranger in the Mediterranean World
(2003). The proposed paper offers to contribute to answer the question of how these institutions left
the Mediterranean and provided a model for early modern European expansion overseas. By studying
funduqs, feitorias and factories in a comparative perspective similarities and differences can be brought
to light and thus provide insight into the successes and challenges of European traders who were active
at a great distance from their city or country of origin. This can be linked to current debates in the field
of new institutional economics and global history.
Biography
Louis Sicking is Aemilius Papinianus professor in the History of Public International Law at VU University
Amsterdam and lecturer in Medieval and Early Modern History at Leiden University, the Netherlands. He
is a specialist in maritime and naval history and has an interest in the history of exploration and
European expansion in a global context.
Amongst his publications are Neptune and the Netherlands. State, Economy and War at Sea in the
Renaissance (Leiden: Brill 2004) and Colonial Borderlands. France and the Netherlands in the Atlantic in
the Nineteenth Century (Leiden: Martinus Nijhof 2008) His next book, La Naissance d’une
Thalassocratie. Les Pays-Bas et la Mer à l’aube du Siècle d’Or is in press.
66
Dr Hilary Soderland
The Archive in Archaeology: Autopoiesis, Law, and Indigeneity
Abstract
Excavation by archaeologists constructs the archaeological record. While destructive, excavation
simultaneously generates a new record, informed by artifacts and other tangible vestiges of past
material culture. The archaeological record as archive epitomizes the very essence of archaeology. Aside
from the historical record, which when available can complement, the archaeological record is typically
considered the sole, if not principal, archive of archaeology. Yet, other archives are tantamount to the
understanding of material culture in contemporary society. The legislative archive is a prime exemplar.
In previous work, I have shown how law regulating archaeology creates a legislative archive that is
fundamental to the discourse.11 Positing the legislative archive as archaeological artifact is one method
that offers an effective assessment of the discipline and practice of archaeology. This paper moves
beyond this methodological innovation, yet is predicated upon its principles. The focus here centers on
how the law-making process creates a legislative archive for archaeology and, in turn, how the terms
and provisions of the law not only rely upon pre-existing archives but also actuate and perpetuate the
creation of new archival data. This process shows how law’s relationship with archives is autopoietic. It
also illuminates how the legislative archive is an official written repository that captures colonial
narratives, modalities of identity and collective memory, as well as dynamics of power. Archives of court
records, testimonies, administrative processes, legislative histories, and the text of law itself are
fundamental to how law regulates the archaeological record and positions the rights of indigenous
peoples in the United States. Archives factor into claims of repatriation, requirements of standing,
disposition decisions, judicial rulings, administrative decision-making, and more – reaching far beyond
the archive created by excavation alone.
Emphasis on the 1990 Native American Graves Protection and Repatriation Act (NAGPRA) and
implementing regulations indicates the ways in which archives are now essential to how law
implements, effectuates, enforces, and arguably legitimates the law governing archaeology –
authenticating or invalidating cultural heritage claims. Examining NAGPRA also uncovers how
archaeology’s archives are infused with cultural alterities. Indigenous peoples’ rights under the law are
11 Soderland, H A, The History of Heritage: a method in analyzing legislative historiography in Heritage Studies: Methods and Approaches, M L S Sørensen and J Carman (editors), Routledge, 2009.
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inextricably linked to the ways in which legislation relies upon and/or fashions archives. Moreover,
archives – and law – often eclipse constructs of intangible heritage. This paper highlights the autopoietic
system whereby law creates archives, and archives reinforce law, to underscore how knowledge
production and access to the archaeological past is determined in a way that often eschews, rather than
embraces, cultural diversity and the intangibility of heritage.
Biography
Hilary A. Soderland directs the PhD in Law Program at the University of Washington School of Law and
teaches interdisciplinary courses to law as well as social science and humanities graduate students.
Specializing in archaeology, cultural heritage, and the law, Soderland received her MPhil and PhD from
the University of Cambridge and her Juris Doctorate (JD) from the University of California-Berkeley’s
Boalt Hall School of Law. A Registered Professional Archaeologist, her publications include articles,
commissioned work, and a co-edited book manuscript concerning archaeology legislation, cultural
heritage law, repatriation, and archaeological resource protection and heritage management. She has
been a Visiting Scholar at the American Bar Foundation in Chicago and at Tel Aviv University’s Cegla
Center for Interdisciplinary Research of the Law. Her museum work on three continents has
encompassed curation, accessioning protocol, exhibition preparation, and legal compliance. For the
Society for American Archaeology, she co-founded and served for seven years as co-chair of the
Heritage Values Interest Group and she currently serves on the Committee on Ethics, the International
Governmental Affairs Committee, and as a legal advisor to the Repatriation Committee. Soderland also is
a manuscript reviewer and editorial board advisor for journals in the fields of anthropology, law, cultural
heritage, and museology. Her professional service further includes pro bono legal work.
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Dr Jason Taliadoros
The Conundrum of Punitive Damages: Was it Ever So?’
Abstract
The modern Australian common law conception of punitive damages has long troubled legal thinkers as
it purports to go beyond the traditional role ascribed to tort law of compensation (and distributive
justice) and overlaps with criminal law aims of retribution and punishment (or corrective justice). How
might an historical analysis of the early analogues of punitive damages inform this conundrum? Modern
punitive damages took their modern form in the 1763 English companion cases of Wilkes v Wood and
Huckle v Money as a check on arbitrary rule, although in the context of political wrangling between
Whigs and Tories from the bench. Prior to this, the traditional accounts point to the English statutes
from the 13th century, which imposed double or treble fines for certain kinds of offences. How can we
explain these two signal moments? And how do we account for the five centuries in between in the
development of notions of punitive damages, or its analogues?
Biography
Dr Jason Taliadoros is a Senior Lecturer in the School of Law at Deakin University who researches in the
area of the history of ideas in the pre-modern period, particularly on notions of law and religion in the
twelfth and thirteenth centuries. Jason has degrees in law and arts and a PhD from the University of
Melbourne. He has published a book on law and theology in twelfth-century England and numerous
chapters and journal articles on this and related themes. He was in receipt of an ARC grant between
2008 and 2011 at Monash University on notions of pre-modern rights. Jason’s teaching interests lie in
the subjects of torts and personal injuries compensation schemes.
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Hilaire Tegnan
Legal Pluralism and Land Administration in West Sumatra: The Implementation of Local Regulations Regarding Nagari Government And Local Regulations on
Communal Land Tenure
Abstract
Land administration has always been a delicate issue to deal with in the history of nations, and
Indonesia, a country where a significant number of the population lives pastoral life is not exempt from
this reality. This paper discusses land tenure issues in West Sumatra, an Indonesian province which is
home to the Minangkabau people with their long existing village management system known as Nagari,
established to settle disputes based on adat (custom) principles as well as to protect the rights of the
community members. These rights include communal land (referred to as tanah ulayat hereafter). Long
before the Dutch occupation of Indonesian archipelago, the nagari government was vested with powers
to regulate communal land in West Sumatra. However, this authority was constantly overlooked by the
then Dutch colonial administration as well as the post independence governments (both central and
regional) as we shall show in this paper. To reinforce the Nagari Government as the guardian of the
customary law (hukum adat) and to specify its jurisdiction, the Regional Government of West Sumatra
enacted two laws between 2000 and 2008: Law No. 9/2000 repealed by Law No. 2/2007 and Law No.
6/2008 on communal land tenure. Although these two laws provide legal grounds to address land issues
across the region, land conflicts still prevail among West Sumatran populations due to unsynchronized
and contradictory regulations. The Protests against the Army (Korem) in Nagari Kapalo Hilalang, the
protest against the oil palm company in Nagari Kinali, and the protest against a sement factory in Nagari
Lubuk Kilangan are cited in this paper as case references.
Biography
Hilaire Tegnan is a Cote D’Ivoire national doing a Ph.D in Law School at Andalas University Padang-
Indonesia.
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Professor Christopher Tomlins
The Political Economy of ‘Labour’ in Antebellum Virginia: the Virginia Constitutional Convention of 1829-30, the Turner Rebellion, and the Emancipation
Debate of 1831-32.
Abstract
By the early 1830s, forty years of migration into Trans-Allegheny Virginia had given the state’s politics a
triadic cast that pitted a western “peasantry” – predominantly non-slaveholding and underrepresented
– against the long-settled east, where planters heavily invested in slavery for more than 150 years
enjoyed an establishment’s political ascendancy, but where intra-sectional antipathies in the shape of
clamorous mercantile and artisanal interests rubbed up against planter power. Both species of strain
instanced the gradual decomposition of a hierarchical and pre-modern political economy, built upon
uneven accumulations of land and slaves, under the persistent battering of commercial capitalism.
Decomposition’s political-legal effects – fought out in the Constitutional Convention of 1829-30 – were
quite singular: the atrophy of freehold in land as principal expression of agrarian Virginia’s republican
self-perception, and the key to the state’s post-Revolutionary political and legal structures, and the
beginnings of its replacement by an idealization of productive labor. In the case of the merchant,
artisan, and yeoman (peasant) farmer the validating labor was their own – the self-possessed, self-
disposing labor of the free contracting individual; in the case of slaveholders, the labor that validated
their civic identity was that of their slaves.
Though multivocal, the Convention debates were, necessarily, monochromatic. Nat Turner’s rude
intervention (August 1831) in their aftermath lent the conversation a new coloration and a new
direction. The three Virginias abandoned their attempts to shoehorn multiple economies into a single
polity; they began instead openly to debate the merits of one economy in particular, the political
economy of slavery.
Arrestingly, the outcome was not, even gradually, an end to slavery; rather the reverse. As free labor, in
the form of white male self-possession, moved to the center of political debates over representation
and enfranchisement, slaves were involuntarily annexed to the politics of civic status to qualify their
possessors too. No longer mediated by land, the ownership of slaves – property in services perpetually
owing – became the basis for planters’ civic identity and membership in an increasingly democratic
republican polity. Simultaneously, however, slaves’ labor power joined white labor as a circulating
commodity: in their case, a capitalized investment – literally human capital – seeking a return. The
discourse of political economy in Virginia would at first conflate, then differentiate, the slave’s two
71
abstracted bodies – the political and the economic. The main reason for the differentiation was the
intervention of the slave’s third body, the real, material, threatening body of the rebel.
Biography
Christopher Tomlins joined the Berkeley Law faculty in 2014. Trained as a historian at The Johns Hopkins
University, his teaching career began in 1980 at La Trobe University, Melbourne, where he was
successively Lecturer, Senior Lecturer, and University Reader in Legal Studies. In 1992 Tomlins joined the
research faculty of the American Bar Foundation, Chicago, where he remained until 2009, when he
became Chancellor’s Professor of Law at the University of California, Irvine. Tomlins’ primary affiliation
at Berkeley Law is to the Jurisprudence and Social Policy (Ph.D.) program, in which he teaches courses
on the history and law of slavery, and on legal history. He also teaches in the undergraduate Legal
Studies Program.
Tomlins is currently engaged in research on the Nat Turner Slave Rebellion, which occurred in 1831 in
Virginia. He is also pursuing research on the history of contemporary legal thought, and on the
materialist jurisprudence detectable in the work of the literary critic Walter Benjamin.
His books include Freedom Bound: Law, Labor and Civic Identity in Colonizing English America, 1580-
1865 (2010); Law, Labor and Ideology in the Early American Republic (1993); and The State and the
Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960 (1985). He is
also editor, with Michael Grossberg, of The Cambridge History of Law in America, 3 volumes (2008); with
Bruce H. Mann, of The Many Legalities of Early America (2000); with Andrew J. King, of Labor Law in
America: Historical and Critical Essays (1992); and with Ian W. Duncanson, of Law and History in
Australia (1983). He is sole editor of The Supreme Court of the United States: The Pursuit of Justice
(2005). Other publications include some 200 chapters, articles, editorial essays, reviews, and working
papers. Tomlins has been the editor of the Law and History Review (1995-2004), and Law and Social
Inquiry (2005-09). Currently he is academic editor of two Cambridge University Press book series:
Cambridge Historical Studies in American Law and Society, and (with Michael Grossberg) New Histories
of American Law.
Tomlins’ scholarly work has been awarded the Surrency prize of the American Society for Legal History,
the Littleton-Griswold prize of the American Historical Association, the James Willard Hurst prize of the
Law and Society Association (twice), and the Bancroft Prize of the Trustees of Columbia University. He
has been the recipient of fellowships and distinguished visitorships from The Johns Hopkins University;
the University of Wisconsin, Madison; the Harry S. Truman Library Institute; The Charles Warren Center
72
for the Study of American History, Harvard University; the Commonwealth Center for the Study of
American Culture, and the Institute of Bill of Rights Law, both at the College of William & Mary in
Virginia; the University of Sydney; the University of Technology Sydney; Tel Aviv University; The Institute
for Advanced Studies, Hebrew University, Jerusalem; the University of Haifa; and the University of
London (Queen Mary).
73
Karena Viglianti-Northway
Responsible government – different meanings or different focus? A comparison of the importance placed upon different ideas of responsible government in
England and the Australian colonies in the 1890s
Abstract
In this paper I examine how the Australian colonies provided different meanings of responsible
government in the 1890s to the way in which the concept was understood to operate in England at that
time. The move to federation in particular provided an interesting basis and forum in which the colonies
could discuss three major aspects of the concept of responsible government as part of the codification
process involved in drafting the Commonwealth Constitution. These aspects focused in the main on how
to reconcile strong parliamentary government within a federal system and still achieve the political
accountability required by responsible government. The paper explores the differences that the social
and political contexts that were present in Australia in the 1890s made to the colonists’ understandings
of the doctrine of responsible government and how they struggled to recognise a somewhat amorphous
political concept in a constitutional and legal document at a time when such an attempt had not been
made anywhere else in the Commonwealth. It is argued that this context provided different
understandings of what responsible government meant and how it could be achieved within Australia
compared to how the concept had been interpreted and applied in England at the time.
Biography
Karena is a Quentin Bryce Doctoral Scholar and a Teaching Fellow in the Faculty of Law at the University
of Technology, Sydney. She is currently completing a PhD in Constitutional Law, supervised by Professor
Shaunnagh Dorsett and Professor Andrew Lynch (UNSW). She also practices as a barrister and has a
range of legal and policy experience through the roles she has held as Counsel and as a solicitor advising
various governments and governmental agencies and some of Australia’s largest publicly listed
companies. Karena has advised Commonwealth and State Governments across a range of public policy
areas and has a particular interest in the way in which legal doctrine attempts to incorporate history in
understanding the meaning of doctrines implied into the Commonwealth Constitution.
74
Professor David V Williams
Colonial Office policy 1835-1847: 1940’s papers by Oxford's ET Williams and recent scholarship compared".
Abstract
Orthodoxy once had it that Under-Secretary James Stephen and his political superiors were inspired by
Clapham sect humanitarian beliefs to erect a colony that was uniquely benevolent in its intentions
towards Maori as evidenced by the Treaty of Waitangi 1840. Later scholarship suggested that the
recognition of Maori property rights in the Treaty came to be seen by British politicians as a ‘mistake’
that had to be worked around for the benefit of incoming settlers. Colonial Office policy was however
more complex as shown in the recent work of Mark Hickford on conceptual incommensurability. These
latest insights are not so different, however, from those adumbrated in two fascinating papers written
by a Junior Research Fellow in Oxford just before the centennial of the Treaty of Waitangi in 1940, but
seldom cited. I will suggest that the historical assumptions of the New Zealand courts since 1986
regarding the justifiability and enforceability of Maori claims in ordinary courts should be revisited in the
light of the recent work of Hickford and the much earlier work of Williams.
The author of the papers published in 1940 and 1941 was Bill [later Sir Edgar] Williams whose first
marriage was to a New Zealander, who served in the 8th Army intelligence unit alongside several
Oxfordian New Zealanders, and who later was Warden of Rhodes House in Oxford for many years.
Biography
Dr David V Williams holds a personal chair as Professor of Law at the University of Auckland, New
Zealand. After study at Victoria University of Wellington, he was a Rhodes Scholar at Balliol College,
Oxford. He has tertiary qualifications in history, law and theology including a PhD from the University of
Dar es Salaam in Tanzania where he taught in the 1970s. For a decade (1991-2001) he was an
independent researcher and barrister engaged in legal history research relevant to claims to the
Waitangi Tribunal.
He has authored 5 books – the most recent being A simple nullity? The Wi Parata case in New Zealand
Law and History (AUP, 2011). Additional publications include 16 book chapters, 36 refereed journal
articles and 10 major technical reports.
75
He has held visiting positions at the University of Oxford and the University of Dar es Salaam. He has
recently returned to Auckland from two terms as a Visiting Research Associate in St John’s College
Research Centre, Oxford.
76
Dr Sarah Wilson
Crime, punishment and rehabilitation: transportation and the criminal with ‘… esteemed cultural attainments’
Abstract
Reference above to the criminal with ‘… esteemed cultural attainments’ is a play on Edwin Sutherland’s
seminal work on white collar crime dating from the 1940s. Here Sutherland contrasted the position of
violators of criminal law drawn from ‘high social status and respectability’12 and those possessing ‘less
esteemed cultural attainments’,13 explaining how the former did not ‘conform to popular stereotype of
“the criminal”’.14
In 1855 London private bankers Strahan Paul and Bates stood accused of the embezzlement of moneys
belonging to their firm’s clients and were convicted. The bankers’ criminal trial at the Central Criminal
Court in October of that year forms part of a small cluster of key cause célèbre trials dating from c 1850,
which focused on business fraud, and which can be seen to have brought together a series of ‘core’
issues associated with such Victorian ‘transformative understandings’15 of financial crime.16 As such the
‘delinquencies of Strahan Paul and Bates’17 forms part of a lineage of contemporary criminal responses
to financial misconduct as Victorian Britain struggled to come to terms with the arrival of ‘large-scale
illegality that occurs in the world of finance and financial institutions’.18 Given that today Australia is
known for its very tough stance on financial crime, this focus on the dynamics of Empire and law-making
ensures that Britain’s early experiences of financial crime are likely to be of interest to scholars
concerned with today’s enforcement culture for financial crime, and scholars of Australian social,
economic and cultural history alike. This case also has an additional special significance for Australian
scholars and those interested in how Britain’s laws became integral to mapping Australia’s early history.
This is because following their conviction; these bankers were transported to Australia, in what was
considered grave punishment for their crimes.
12 E H Sutherland White Collar Crime, New York: Dryden Press, 1949, p. 9. 13 E. H. Sutherland ‘Is “White-collar Crime” Crime?’ American Sociological Review, 1945, 10, p.137. 14 Ibid, 136. 15 Per D. O. Friedrichs ‘Wall Street: Crime Never Sleeps’ in S. Will et al (eds), How They Got Away With It: White Collar Criminals and the Financial Meltdown New York: Columbia University Press, 2012, p.20. 16 S. Wilson The Origins of Modern Financial Crime: Historical Foundations and Current Problems in Britain Abingdon: Routledge, 2014. 17 D. M. Evans Facts Failures and Frauds Revelations Financial Mercantile Criminal, 1859, reprinted New York: Augustus M Kelley, 1968, pp.106-39. 18 D. O. Friedrichs Trusted Criminals: White Collar Crime in Contemporary Society California: Belmont Press, 1996, p.5.
77
This case is central to the narrative constructed in the paper of how the reactions of shocked
contemporaries to this arrival of ‘large-scale illegality’ became highly significant within two colossus of
Victorian law-making agendas19 in what was a ‘century of law reform’.20 The paper explains why the
exposure of ‘“High-art” Crime’ during the 1840s21 was so shocking for contemporaries,22 to draw out
how reactions to this unease and actually alarm became manifested within the extensive reforming
energies being directed towards both the rationalisation of the criminal law and its administration, and
also the articulation of capitalism with law. This was in a setting of contemporary acknowledgment that
the nature of financial crime embodied in the rhetoric ‘high art crime’ constituted a point of departure
for early-to-mid nineteenth-century Britain, even for a society which acknowledged that clerks had been
embezzling employers’ property since ‘time immemorial’.23
The main themes for this paper are drawn out from how ‘high art crime’ would challenge both of these
key agendas in Victorian law-making and law reform. Within this the case of Strahan et al is particularly
interesting because these bankers were sentenced to transportation for a period of 14 years because ‘a
greater or more serious offence could hardly be imagined’ in a sentencing decision explicitly going to the
very limits which the law would allow.24 This was seen as fitting punishment for those who were not
criminals ‘as are usually seen’ at the bar of a criminal court, and whose ‘unquestioned honour and
integrity’ had prevented them from being ‘supposed capable’ of the offence of which they were
convicted. 25 These ‘delinquent’ bankers were then able to return home early on account of changes in
law, with this happening amidst calls for their swift and effective reintegration into their positions of
‘high office’.26
Focusing on the use of transportation and the increasing emphasis on institutional punishment ‘at
home’ and concentrating on the mid-century years, the paper makes a number of observations on the
difficulties experienced by Victorian society in directing punishment towards those who did not
‘conform to the popular stereotype of “the criminal”’. This was on account of the ‘criminal within
respectability’27 having perceived differences from the ‘fundamentally unsophisticated … sheep stealers
19 S. Wilson, n. 4 above, esp pp 157-187. 20 Anonymous, A Century of Law Reform: Twelve Lectures On The Changes In The Law Of England During The Nineteenth Century, London: Council of Legal Education, 1901. 21 As reported by D. M. Evans, n. 5 above, p.1. 22 Ibid, pp.1-5 especially. 23 Ibid, p.1. 24 The Trial of Strahan, Bates and Paul, 26 October 1855, Central Criminal Court, London, per presiding Baron Alderson. 25 Ibid, Mr Bodkin, presenting the case before Bow Street Magistrates; prosecution’s case in the Central Criminal Court. 26 In the Central Criminal Court, per presiding Baron Alderson. 27 M. Wiener Reconstructing the Criminal: Culture, Law, and Policy in England 1830-1914 Cambridge: Cambridge University Press, 1990, p.244
78
and poachers … and … thieves’; persons whose identification as such shaped the penal system of the
mid-nineteenth century,28 as well as being the focus of the birth of modern policing,29 and the
rationalisation of the criminal law itself.30 It then directs these ideas, and the acknowledged and
vocalised importance of the transportation sentence in the case of Strahan et al to reflect on the
difficulties presented by the ‘respectable criminal’ for nineteenth-century criminal and penal
policymaking. It suggests that notwithstanding that these were considerable, this discourse was more
effective for castigating financial impropriety than the emerging legal framework for regulating
capitalism and its operations, and was perceived by contemporaries as such. This proposition will be
examined alongside powerful argument made within critical analyses the emergence of the modern
criminal law that the ‘respectable criminal’ was absent from its underpinning social and moral
calculations,31 and the paper reflects on the lasting impact of this purported power of criminal
discourses for responding to nineteenth-century financial misconduct. This lasting impact will be
explored both in relation to Britain and also Australia, viewed through the lens of ‘law’s empire’ as a
legacy of ‘Empire’s law’. In considering a number of criminal trials relating to violations of Australian
securities law, there will be much emphasis on the importance for the Australian courts of the 21st
century of ensuring ‘condign punishment’ for ‘serious criminal offences’ committed by those in positions
of ‘high office’. This was remarked on by the New South Wales Supreme Court in 2012 in one of a
number of highly profiled cases involving alleged securities regulation violations.32 In joining these cases
together with British crime history and the importance of this for mapping Australian history, very
significant intellectual framing also comes from Braithwaite’s seminal Crime, Shame and Reintegration33.
Biography
York Law School (UK). Prior to my current position, I was a lecturer at the University of Manchester. I
have also held academic posts at Keele University, the University of Leeds, and the University of Wales,
Swansea. Following my undergraduate studies at Cardiff Law School, I studied history at the University
of Wales, Swansea at master’s level and then obtained my PhD in legal responses and social
constructions of financial crime from c.1850 to the present.
28 U. Henriques ‘The Rise and Decline of the Separate System of Prison Discipline’ Past and Present 1974, 54, esp p.82-86. 29 See e.g. Jones, D.J.V. ‘The New Police: Crime, and People in England and Wales, 1829-1888’ Transactions of the Royal Historical Society, 1983, 33. 30 A. Norrie, Crime Reason and History: A Critical Introduction to Criminal Law London: Wiedenfeld and Nicolson, 1993, see especially pp.85-86. 31 Ibid. 32 R Fysh (No 4) [2012] NSWSC 1587, Per McCallum J. 33 J. Braithwaite Crime, Shame and Reintegration, Cambridge: Cambridge University Press, 1989.
80
Dr Gabrielle Wolf
A delayed inheritance: the Medical Board of Victoria’s 75-year wait to obtain its British counterpart’s power to prosecute doctors for ‘infamous conduct’
Abstract
On 1 July 2010, the Medical Board of Australia, which regulates doctors throughout Australia, came into
being. Its antecedent that governed the medical profession in Victoria until that date was originally
modelled on the General Council of Medical Education and Registration of the United Kingdom (GC).
From its inception in 1844 as the Medical Board for the District of Port Phillip, the Victorian board, like
its British counterpart, was empowered to retain a register of medical practitioners whom it declared to
be ‘legally qualified’. Nevertheless, it was not until 1933 that the Medical Board of Victoria (MBV), as it
became, was given the counterbalancing authority possessed by the GC from 1858 to erase from the
register names of medical practitioners it judged to be ‘guilty of infamous conduct in [a] professional
respect’.
This paper examines the reasons for and significance of the delay in the MBV’s inheritance of this power
from Britain. It argues that the Victorian legislature did not trust the MBV to exercise the power
carefully, but that the Parliament’s wariness was deeply misplaced and jeopardised patients’ safety. The
MBV in fact responded with caution to its new power and prudently sought advice from the GC before
exercising it. Yet, importantly, when the MBV did find that medical practitioners whom it previously
deemed legally qualified had engaged in infamous conduct, it was determined to use its authority to
protect the public from them.
Biography
Dr Gabrielle Wolf is a lecturer in the School of Law at Deakin University. She has degrees in Arts
(Honours) and Law and a PhD in History from the University of Melbourne. Gabrielle has worked as a
lawyer in private practice and in-house, practising in a range of areas including the regulation of medical
practitioners at the then Medical Practitioners Board of Victoria, the Australian Health Practitioners
Regulation Agency and Minter Ellison Lawyers.
81
Ms Ruiping Ye
“Recognition of aboriginal land Rights in Taiwan during the Qing Dynasty, 1684-1895
Abstract
The Qing Empire annexed Taiwan in 1684, and governed Taiwan first as a prefecture under Fujian
Province and then as a province. Taiwan was ceded it to Japan in 1895.
This paper analyses the Qing government’s recognition of land rights of the Taiwan aborigines. They had
lived on the island for thousands of years before parts of the island were subject to successive
colonisation, first by the Dutch (1624-1662) and then by the Chinese Zheng family (1662-1683).
This paper examines the Qing officials’ and government’s views of aboriginal land rights in Taiwan,
including land that was cultivated by aborigines, uncultivated land that belonged to acculturated
aborigines, and uncultivated land that was situated in the non-acculturated aborigines’ territories. It
argues that the Qing government assumed a title, similar to the Common Law radical title, in Taiwan
through the aborigines submitting themselves to the government. Subject to this ultimate title in the
government, the government recognised aboriginal land rights. The government often tried to protect
aboriginal land rights, and usually, although not always, ensured the aborigines received appropriate
compensation for land used by settlers.
Biography
I am a PhD candidate at the Law Faculty, Victoria University of Wellington (VUW), New Zealand. My
research focuses on aboriginal land tenure in Taiwan during the Qing dynasty and the Japanese colonial
period (1684-1945). I am interested in finding out how the two different legal systems influenced the
policies regarding aboriginal land, and the effects of such policies on aboriginal land rights.
Holding an LLM (distinction) from VUW and an LLB from Xiamen University, I am qualified to practise
law in both New Zealand and China. Aside from the current research, I’ve written and published on
topics relating to land registration, administrative law, and New Zealand-China Free Trade Agreement.
82
Rachel Young
River red gums and English oak: a history of timber trees in Australian law
Abstract
The violent ring-barking of trees in the name of improving the land is well-known in Australia’s colonial
and environmental history. Histories of tree protection are lesser known. This paper presents a series of
colonial Australian cases where landowners sought to prevent tenants from clearing the land. It traces
the movement of a body of law – the doctrine of waste – from England to the Australian colonies. I
examine two opposing arguments in these cases. The first was that trees of the colonies were worthless
and could not be compared to the valuable ‘timber’ trees of Europe. There was, therefore, no standard
by which the clearing of trees could be measured and lawfully restrained. The second was that land-use
customs in the colonies could be used to determine whether or not specific cases of tree clearing
constituted ‘waste’.
Today’s politics and laws on tree clearing are about the protection of native vegetation and endangered
species habitat. The timber tree history may seem, therefore, quaintly anthropocentric and utilitarian in
the current environmental law context. Indeed, the doctrine of waste is by no means an ancient law of
sustainable development recently rediscovered. But I argue that it does provide an account of how to
live in and with nature that is perhaps still relevant today. Arguably, this is a different kind of
‘environmental law’. It is one that does not seek to protect nature from humans but instead seeks to
protect a human use of nature that is measured and mindful.
Biography
Rachel Young is a PhD candidate and Quentin Bryce Scholar at the University of Technology, Sydney. Her
doctoral project is titled “Who owns the trees? Property rights, carbon and forests”. Previously, Rachel
has worked at the Department of Foreign Affairs and Trade, including a three-year posting to Vanuatu.
83
Assistant Professor Han-Ru Zhou
The Reception of The Common Law, Judicial Review and Constitutional Principles
Abstract
In most Commonwealth countries, a staple feature of the legal system has been the establishment of
judicial review of legislation on the basis of their respective national Constitutions. However, over the
past half-century, the courts, in particular the Judicial Committee of the Privy Council, have also
exercised judicial review of legislation on the basis of principles not formally expressed in the provisions
of their Constitution but which originally derive from the English constitution. This paper seeks to offer a
historical explanation of the use and role of such principles as a ground of judicial review of legislation.
In these common law-based systems, the exercise of judicial review on the basis of English
constitutional principles is rooted in a shared legal history and tradition and can be coherently explained
by the nature of the common law. More specifically, such an exercise of judicial review can be traced
back to British colonization and the reception of English law in the new territories. Over time, the
colonial courts developed a practice of referring to English (and other Commonwealth) authorities,
which would continue even after the political and legal ties between the former colonies and the UK had
been severed. One major reason of this ongoing practice is the fact that the independence of almost all
of the former colonies had been formalized through the adoption of a Constitution on the “Westminster
model” and was thus founded upon the general principles of English constitutional law. Altogether,
these channels of reception of the common law have contributed to form a supplementary
constitutional basis for conducting judicial review in these Commonwealth countries.
Biography
Han-Ru Zhou (LL.B., LL.M., D.Phil.) is an Assistant Professor of Public Law at the Université de Montréal
Faculty of Law. Before joining the Faculty of Law, he was a Boulton Fellow (Visiting Scholar) at McGill
University and served as a Law Clerk to Justice Marie Deschamps at the Supreme Court of Canada. A
member of the Québec Bar, Han-Ru Zhou also practised as a corporate lawyer at a Canadian law firm.
Han-Ru Zhou received his legal education at Montréal, Harvard and Oxford Universities. Professor Zhou
teaches and researches in the areas of constitutional law, comparative law and legal theory.
84
Rachel Young
River red gums and English oak: a history of timber trees in Australian law
Abstract
The violent ring-barking of trees in the name of improving the land is well-known in Australia’s colonial
and environmental history. Histories of tree protection are lesser known. This paper presents a series of
colonial Australian cases where landowners sought to prevent tenants from clearing the land. It traces
the movement of a body of law – the doctrine of waste – from England to the Australian colonies. I
examine two opposing arguments in these cases. The first was that trees of the colonies were worthless
and could not be compared to the valuable ‘timber’ trees of Europe. There was, therefore, no standard
by which the clearing of trees could be measured and lawfully restrained. The second was that land-use
customs in the colonies could be used to determine whether or not specific cases of tree clearing
constituted ‘waste’.
Today’s politics and laws on tree clearing are about the protection of native vegetation and endangered
species habitat. The timber tree history may seem, therefore, quaintly anthropocentric and utilitarian in
the current environmental law context. Indeed, the doctrine of waste is by no means an ancient law of
sustainable development recently rediscovered. But I argue that it does provide an account of how to
live in and with nature that is perhaps still relevant today. Arguably, this is a different kind of
‘environmental law’. It is one that does not seek to protect nature from humans but instead seeks to
protect a human use of nature that is measured and mindful.
Biography
Rachel Young is a PhD candidate and Quentin Bryce Scholar at the University of Technology, Sydney. Her
doctoral project is titled “Who owns the trees? Property rights, carbon and forests”. Previously, Rachel
has worked at the Department of Foreign Affairs and Trade, including a three-year posting to Vanuatu.
85
Assistant Professor Han-Ru Zhou
The Reception of The Common Law, Judicial Review and Constitutional Principles
Abstract
In most Commonwealth countries, a staple feature of the legal system has been the establishment of
judicial review of legislation on the basis of their respective national Constitutions. However, over the
past half-century, the courts, in particular the Judicial Committee of the Privy Council, have also
exercised judicial review of legislation on the basis of principles not formally expressed in the provisions
of their Constitution but which originally derive from the English constitution. This paper seeks to offer a
historical explanation of the use and role of such principles as a ground of judicial review of legislation.
In these common law-based systems, the exercise of judicial review on the basis of English
constitutional principles is rooted in a shared legal history and tradition and can be coherently explained
by the nature of the common law. More specifically, such an exercise of judicial review can be traced
back to British colonization and the reception of English law in the new territories. Over time, the
colonial courts developed a practice of referring to English (and other Commonwealth) authorities,
which would continue even after the political and legal ties between the former colonies and the UK had
been severed. One major reason of this ongoing practice is the fact that the independence of almost all
of the former colonies had been formalized through the adoption of a Constitution on the “Westminster
model” and was thus founded upon the general principles of English constitutional law. Altogether,
these channels of reception of the common law have contributed to form a supplementary
constitutional basis for conducting judicial review in these Commonwealth countries.
Biography
Han-Ru Zhou (LL.B., LL.M., D.Phil.) is an Assistant Professor of Public Law at the Université de Montréal
Faculty of Law. Before joining the Faculty of Law, he was a Boulton Fellow (Visiting Scholar) at McGill
University and served as a Law Clerk to Justice Marie Deschamps at the Supreme Court of Canada. A
member of the Québec Bar, Han-Ru Zhou also practised as a corporate lawyer at a Canadian law firm.
Han-Ru Zhou received his legal education at Montréal, Harvard and Oxford Universities. Professor Zhou
teaches and researches in the areas of constitutional law, comparative law and legal theory.