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By what authority?: Criminal law reform in colonial New South Wales 1788-1861
thesisposted on 2022-03-28, 18:15 authored by Eugene Schofield-Georgeson
In colonial New South Wales (NSW) between 1788 and 1861, criminal law was the primary State apparatus through which social relations were conducted. In an era before representative democracy (1857) and during a time of brutal colonisation, the criminal law was, undoubtedly, an implement of coercive colonial power. But criminal law also provided a forum in which social grievances could be heard and against which were made counter-hegemonic claims to fundamental rights and civil liberties. This thesis proposes that a broad coalition of social groups relied upon the criminal law to democratise their society as well as the law itself, in which they participated either as its subjects, as lawyers or social commentators.In making such a claim, this thesis constructs a new typology specifically designed to describe social relations related to the legal history of the criminal law. It does so by identifying structural relationships between three distinctive social groups who occupied colonial society throughout the period: 'colonised peoples and working-class peoples', 'civic radicals' and 'constitutional radicals'. Accordingly, this thesis examines how various struggles and interventions by these groups eventually led to the reform of criminal law in colonial NSW. The reform achieved throughout this period made the law fairer, particularly for colonised peoples. But it also ensured the longevity or 'hegemony' of a section of the colonial ruling-class who supported reform. The legacy of this reform has since been carried into the twentieth century where, concerningly, towards its end and at the beginning of the next, efforts have been to dismantle much of the reforms hard-won during the mid-to late-colonial era. Long forgotten are the people for whom that reform exists -those who continue to occupy unequal space, often on the fringes of Australian cities and towns and in the prisons and courts of the Australian criminal justice system.