Outlaws in their Native land: the 'Incompetence' of Aboriginal Witnesses in 19th Century Colonial Australia

Abstract

This Chapter considers the law of witness competence applying to Aboriginal witnesses in 19th century colonial Australia. After British colonisation, there was strong awareness of the rule of law and the ostensible need for equity and justice for all. Yet Aboriginal witnesses were deemed ‘incompetent’ witnesses, unable to testify as they did not believe ‘in a future state of reward and punishment’ and were ‘destitute of the knowledge of God’. The British law of witness competence was designed to ensure that only ‘reliable’ testimony was presented. However, this law was arbitrarily applied in 19th century colonial Australia and ignored Aboriginal lore and beliefs. The authors contrast this to the acceptance of the testimony of other non-Christian witnesses in this period. The authors note the efforts at reform, which belatedly allowed in the mid-1800s the ‘unsworn’ testimony of Aboriginal witnesses. Such laws proved relatively swift and uncontentious in South Australia but encountered hostility in New South Wales and did not pass until 1876. However, the effects of such laws proved limited, and the testimony of Aboriginal witnesses was still regarded as inferior to ‘sworn’ evidence. The law of competence to Aboriginal witnesses raises continuing implications (a topic of both personal and professional application).