The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, David Neal, Cambridge, U.K.: Cambridge University Press, 1991, xiv + 266 pp.

Abstract

Australia should be the country lawyers most love to study. In the half century after the first British settlement was established in 1788, the majority of immigrants to Australia had been selected by judges and juries in Britain and Ireland. They were convicts. Although their discipline was a perennial concern of the colonial authorities, breaches of discipline could not be punished in a summary fashion. Convicts had to be brought before a court, where they could give evidence and even initiate complaints. It was not simply that early Australia was saturated in law. A full complement of legal institutions and legal practices evolved in this anomalous society. This is the paradox presented, unintentionally, by Robert Hughes in his best-selling book The Fatal Shore (1987); 1 the first gulag became a complacent law-abiding community. Why, then, did it take The Australian and New Zealand Journal of Criminology twenty-four years, until its forty-eighth issue in 1991, to accept or commission articles on the startling criminological experiment that had taken place in its own country? The best explanation is a double one. First, the historically orthodox view of the convicts since 1950 has been that they came from a self-perpetuating criminal caste in the United Kingdom. Because they were outside the normal class structure, they were uninteresting to social scientists; the idea of a separate criminal class has been an easy but disabling concept for scholars. Second, the apparently conventional outcome of Australian society after its apparently lurid origins seems to defy logic, so the problem has been sidestepped. In the last fifteen years, most historians of nineteenth-century England have undermined and rejected the stereotype of a distinct criminal class; crime was committed by people inside the class structure. The publication in 1988 of a collection called Convict Workers, edited by Stephen Nicholas, 2 brought this new orthodoxy to Australia. Convict Workers demonstrated that the convicts were members of the conventional working classes at both ends of the voyage. Their destiny in Australia was work, with which they were familiar before their transportation. Essays by Garton and Dyster 3 provide a history of this debate.

Management and Resistance in the Convict Work Gangs, 1788-1830

“…This meant the skilled workers could concentrate their efforts on the more challenging tasks, leaving mundane and complementary work to be performed by the less skilled. The gang system also allowed the training of unskilled 'adult learner' convicts as multi-skilled labourers, although this was not a 'shifting [of] control of training to the employer' (Littler 1979) but empowered individual convicts (Dyster 1989).…”