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The Criminal Law Consolidation Act Amendment Act 1971 (South Australia) removed the ability for Aboriginal murderers to be executed at the scene of the crime as allowed by the Criminal Law Consolidation Act of 1876 (SA).

Did this punishment ever apply to murderers of other ethnic origins in Australia? If so, in what states and territories was it applicable and when was it abolished for non-Aborigines?

  • @Razie Mah The book I'm reading, Citizens Without Rights, has an endnote referring to legislation of 1971 and refers to it in the context of events after the 1967 referendum. Can you confirm that it really ought to be the 1952 amendment that is relevant here? – lins314159 Apr 15 '14 at 7:47
  • I can't, really. This is from the book Ngarrindjeri Wurruwarrin: A World that Is, Was, and Will be. It provides a chronology of laws against the aborigines. I tried reading the law first but its very, very long. – Razie Mah Apr 15 '14 at 7:50
  • The 1967 referendum removed the ability of the government to make laws referencing a particular race. It was repealed in 1971 because the government wanted to take vital statistics to help the aborigines. – Razie Mah Apr 15 '14 at 8:26
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tl; dr

Did this punishment ever apply to murderers of other ethnic origins in Australia?

No.

However applying different rules for the execution of Aboriginal people convicted of a capital offence was not unique to South Australia. A similar law also applied, for example, in Western Australia.


South Australia

Public executions for capital offences had been the norm until 1858. However, where a person was hanged depended almost entirely on their race. In his paper Punishment as pacification, Steven Anderson observes:

" Unlike public executions for European offenders which always took place in or around the Adelaide Gaol, public Indigenous hangings occurred at the scene of the crime with settlers and fellow tribesmen encouraged, sometimes forced, to watch."


Public executions in South Australia were abolished in 1858 by the Act to Regulate the Execution of Criminals 1858 (SA). This meant that all executions, regardless of race were carried out:

"... , within the walls or within the enclosed yard of the Gaol of Adelaide, or of such other Gaol as the Governor may, by writing under his hand, direct"

However, even when the Bill had been in Committee, concern had been raised that this move would reduce the deterrent effect of the punishment. Thomas Strangeways stated:

"The Act would entirely prevent the execution of the aborigines in the usual manner. If any of the white population committed a crime, it was perhaps desirable they should be executed under the provisions of that Act, but it had hitherto been considered necessary in the case of an aborigine that he should be executed in the place where the crime was committed, in order that the associations connected with the crime should be connected with the punishment."

  • South Australian Parliamentary Debates, 7 October 1858, quoted in Steven Anderson: Punishment as pacification.

The move to amend the Bill in 1858 failed, and the Act was passed and became law in December 1858.

However, an amendment to the 1858 Act was passed in 1861. The Act to amend an Act, No. 23 of 22nd Victoria, intituled "An Act to Regulate the Execution of Criminals" stated:

"It shall be lawful for the Governor, with the advice and consent of the Executive Council, by writing under his hand, to order that any sentence of death, which shall have been lawfully passed on any aboriginal native of the said Province, may be publicly carried into execution at the place at which the crime, in respect of which such sentence shall have been passed, was committed, or as near to such place as conveniently may be."

The amendment only applied to Aboriginal people convicted of a capital crime.


Western Australia

Western Australia also allowed the execution of Aboriginal people convicted of murder at the place where the crime had taken place.

Western Australia passed an Act titled An Act to provide for carrying out of Capital Punishment within Prisons in 1871.

  • Like the 1858 Act in South Australia, this meant that all executions were to be carried out in private, within the jail.

  • Like the 1858 Act in South Australia, this Act applied to all races

  • Like the 1858 Act in South Australia, this Act was subsequently amended to allow the execution of Aboriginal people, in public, at the place where the crime had been committed.


In 1875, An Act to amend The Capital Punishment Amendment Act, 1871 allowed:

  1. The second section of the said Act shall be taken and read as if the words following were added to and formed part thereof, that is to say :— ` except in the case of such of the aboriginal natives who may from time to time be condemned to death, in which case such judgment shall be carried into effect by the proper officer at such place as may be appointed by the Governor for that purpose.'

  2. Such executions as last aforesaid, if the place appointed for the same as aforesaid be without the walls of a prison, shall take place in public; and such rules and regulations shall apply to the same in all respects as if the said Act had not passed.

Again, the amendment only applied to Aboriginal people convicted of a capital crime.


New South Wales, Victoria and Tasmania

Here, the situation seems to have been very different. Public execution was abolished earlier than it was in South Australia and Western Australia. It was abolished in New South Wales in 1853, in Victoria in 1854, and in Tasmania in 1856.

Quoting again from Steven Anderson's paper, Punishment as pacification:

In complete contrast are the colonies of New South Wales, Victoria and Tasmania, which seldom altered the public execution ceremony for Indigenous people and never contemplated its formal reintroduction once abolished.

Queensland

Queensland abolished public executions in 1855 and never reintroduced them. However, once more quoting Steven Anderson's paper, Punishment as pacification:

Queensland never formally reintroduced public executions after they were discontinued in 1855, but sometimes allowed for a controlled number of spectators to attend non-European prison hangings well into the 1890s.

It seems that most cases where spectators were permitted involved capital offenders from the Pacific Islands. In such cases, a limited number of spectators, who were generally of the same ethnicity, were permitted to watch the 'private' execution.

For more information, see John McGuire's 1998 paper, Judicial violence and the “civilizing process”: Race and the transition from public to private executions in colonial Australia, Australian Historical Studies [Vol 29, Issue 111]6: pp 203–208.

  • Fantastic answer. Just to round things out, do you have information on Queensland as well? – lins314159 Apr 29 at 14:48
  • @lins314159 Added a section to my answer. :) – sempaiscuba Apr 29 at 15:07

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