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Extended Essay - History

How did the public response to the outcome of the Myall Creek massacre

trials cement the unequal treatment of Aboriginals before the law, and

subsequent exclusion of Indigenous Australians from the 1901 census?


2

Abstract

The Myall Creek massacre of 1838 resulted in the hanging of seven white men for the

murder of Aboriginal Australians, sparking public response that diminished the legal rights

of the Aboriginals. After I began investigating the case, I found that it was an anomaly in the

history of the treatment of Aboriginals by the Australian courts.

This investigation was carried out with the purpose of answering the question: How did the

public response to the outcome of the Myall Creek massacre trials cement the unequal

treatment of Aboriginals before the law, and subsequent exclusion of Indigenous

Australians from the 1901 census? I began by noting the distinction between white

colonists and Aboriginal people from the time of settlement, and the impact of this on the

attitudes of the Australian courts towards Aboriginal rights. I also found that Governor

George Gipps was influential in implementing new British policies on the treatment of

Aboriginals and the prosecution of the murderers. The response of the colony and the

media during the two trials is discussed to establish the effects they had on the outcome

and the approach of the Government to Aboriginal legal rights from that time onwards. This

essay is limited by the consequences of the Myall Creek massacre trials to 1901, particularly

the decision of the Australian Government to exclude Aboriginals from the 1901 census. The

attitudes and response of the colony at the time of the massacre and trials were determined

using primary resources, including letters from Governor Gipps and newspaper articles from

the time. Secondary sources were used to research the continuing issues surrounding

Aboriginal legal rights.

I reached the conclusion that the public response to the trials prevented the Government

from establishing equality of Aboriginals, which led to the exclusion of Indigenous people

from the 1901 census.

Words: 299


3

Table of Contents

Abstract ............................................................................................................... 2

Table of Contents ................................................................................................ 3

Introduction ........................................................................................................ 4

Australian Race Relations from Settlement ........................................................ 5

Background to the Area ...................................................................................... 7

The Massacre ...................................................................................................... 9

The Role of the Governor ................................................................................. 10

The First Trial..................................................................................................... 11

The Second Trial ................................................................................................ 13

Legal Fallout ...................................................................................................... 14

Political Fallout .................................................................................................. 15

Social Fallout ..................................................................................................... 15

The Census of 1901 ........................................................................................... 16

Conclusion ......................................................................................................... 17

Works Cited ....................................................................................................... 18

Appendix A ........................................................................................................ 21

Appendix B ....................................................................................................... 22

Appendix C ........................................................................................................ 23


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Introduction

Since the arrival of British colonists on Australian soil in 1788, the rights of the

Aboriginal1 people have been largely disregarded, despite the fact that Captain James Cook

was given explicit instructions from the British Government to treat any native people as

equal subjects. As the colony spread, violence on the frontier became increasingly common

and was the primary method of removing Aboriginals from their land. Massacres of

Aboriginal people were widespread and were ignored by the Australian courts.

One exception was the massacre at Myall Creek in 1838, following which seven

colonists were trialled and hanged for the murder of 28 members of the Wirrayaraay tribe.

Such trials were unusual at the time; hence, they received a great deal of media coverage

and public attention. Governor of New South Wales, George Gipps, was determined to use

the trials as an example of the correct treatment of Aboriginals under the law. However, the

infuriated Australian public placed sufficient pressure on the Government and courts that

the practice of hanging white men for killing Aboriginals on the frontier was discontinued.

Even after the trials, Aboriginals remained in an unequal position in Australian

society, prompting the question: How did the public response to the outcome of the Myall

Creek massacre trials cement the unequal treatment of Aboriginals before the law, and

subsequent exclusion of Indigenous Australians from the 1901 census?

In order to answer this question, this investigation firstly examines how the British

colonists dismissed the rights of the Aboriginals from the time of settlement through the

declaration of terra nullius. Violence and maltreatment of the Aboriginals persisted and

became generally accepted, allowing convicts to evade punishment for the murder of

Aboriginals. The British Government began to call for new policies that would bring about

the protection and equal treatment of Aboriginals, which were supported by Governor

Gipps. Following investigation of the Myall Creek massacre, the case was identified as an

opportunity to set a precedent of conforming to the new policies, and the murderers were

twice brought to trial to ensure that they received punishment for their crimes.

1 The indigenous people of Australia, unlike those of other colonised countries, were not given a European name to refer to all groups. The correct terminology for an indigenous Australian person is an Aboriginal. This is capitalised to show respect.


5

However, the Australian public remained fiercely opposed to the punishment of

white men for the murder of Aboriginals, which was evident in the overwhelming public

response and media coverage during both the first and second trials. The hangings did not

have the desired effect, rather the colonists on the frontier developed more evasive

techniques for murdering Aboriginals, whilst the Australian courts reverted to lenient

treatment of colonist. Importantly, this investigation demonstrates how the legal, political

and social repercussions had a lasting effect on Aboriginal rights in Australia, which was

seen in the exclusion of Aboriginals from the 1901 census following the federation of

Australia. This highlights how public opinion and media had the capacity to influence and

overpower the Australian Government and courts in relation to the treatment of

Aboriginals, and ultimately secured their unequal position in modern Australian society.

Australian Race Relations from Settlement

In January of 1788, the First Fleet landed on the shores of Botany Bay, New South

Wales carrying British convicts to settle the land. Upon arrival, they declared terra nullius2,

which disregarded the occupation of the Aboriginals for over 40,000 years. Although the

Aboriginals gave some resistance to the invasion of the white convicts through hostile

attacks, the convicts maintained the view that the Aboriginals held no claim over the land3.

In 1838, The Sydney Herald stated:

“[The aboriginal society] belonged generally to every body but particularly to nobody... the

ground was in common and no part of it was the permanent property of any particular man”4

2 Terra nullius is a Latin term that translates to ‘land belonging to no one,’ suggesting that the Aboriginals had no rights over it. 3 Reynolds, Henry and Bruce Dennett. The Aborigines. (Melbourne: Oxford University Press, 2002), 72.

Professor Henry Reynolds is a prominent Australian historian. As a revisionist historian, his work is controversial since it suggests that much of Australia’s history was hidden or misinterpreted, and that the British in fact invaded Australia, as opposed to the widely-held perception of ‘settlement.’ As a result, the text presents strong bias towards the Aboriginals, and portrays them as victims of the invasion of the convicts.

4 “Sworn to no Master, of no Sect am I.” The Sydney Herald, 5 December, 1838: 2. Accessed 30 June, 2011: http://nla.gov.au/nla.news-article12859164

As a newspaper article from the time of the trials, this is a valuable primary resource that demonstrates the ideas of the time. The article shows clear bias towards the convicts, and the author clearly felt that the murderers should not have been punished for killing Aboriginals. They argue that

http://nla.gov.au/nla.news-article12859164


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Using the claim of terra nullius, the British colonists disregarded the authority of the

Aboriginal leaders and began to occupy the land without offering any compensation5. With

this attitude, the colonists validated the forcible removal of Aboriginals from their

traditional lands6. In fact, the colonists generalised that they were no more than aggressive

savages who could only be controlled by violent methods7. The degrading attitudes of the

colony were already allowing for unfair treatment of Aboriginals.

The conflict on the frontier can be seen to have officially begun when Governor

Phillip and armed settlers attacked a group of Indigenous people to warn them to keep

away from their settlement8. Coupled with the harsh conditions on the frontier, the fear of

retaliation from the Aboriginal tribes made the colonists more insecure and anxious of the

Aboriginal people9. By 1792, settlers were allowed to use force against them under the guise

of protecting themselves10. Even if prosecuted, most colonists were able to escape

punishment using the excuse of self-defence11.

Despite widespread opinion, attacks from Aboriginals were normally not out of

savageness, but in response to murder, rape or failure to fulfil obligations on the part of the

whites12. The massacre of Aboriginals was not a rare event; however, such attacks were

disguised under the euphemism of ‘dispersion’13. The white response was frequently

disproportionate to the harm inflicted by the Aboriginals, with some estimates suggesting

that up to 10,000 Indigenous Australians may have been killed in such massacres14.

Australia was not owned by the Aboriginals before the arrival of the British, and that they consequently have no rights over it.

5 Pattel-Gray, Anne. The Great White Flood: Racism in Australia. (Atlanta: Scholars Press, 1998), 16 Being an Aboriginal, the author shows bias towards Aboriginals. This book was valuable for illustrating the events that caused Aboriginals to lose their rights.

6 Stubbins, Ted and Paulette Smith. The Myall Creek Massacre: Its History, Its Memorial and the Opening Ceremony. (Bingara: Edwards Printing, 2001), 1. 7 Reynolds, Henry. Frontier: Aborigines, Settlers and Land. (Sydney: Allen & Unwin, 1987), 42 8 Ibid, 30 9 Ibid, 12 10 Australian Heritage Database. “Place Details: Myall Creek Massacre and Memorial Site.” Accessed February 3, 2011, http://www.environment.gov.au/cgi-bin/ahdb/search.pl?mode=place_detail;place_id=105869 11 Ibid 12 Horton, David. The Encyclopaedia of Aboriginal Australia. Vol. II. (Canberra: Aboriginal Studies Press, 1994), 668.

A valuable reference for factual information on the Myall Creek massacre and massacres in general at the time, demonstrating very little bias.

13 Ibid 14 Ibid.

http://www.environment.gov.au/cgi-bin/ahdb/search.pl?mode=place_detail;place_id=105869


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In 1833, slavery was abolished in Britain, which influenced the British Government’s

encouragement of more humane Aboriginal policies15. The Supreme Court in Sydney

implemented these ideas in 1836, but the distance to the frontier meant that the same

attitudes were not adopted. The tension on the frontier mounted as the settlers felt that

they were receiving inadequate protection from the Government, and had great difficulty

communicating with the Aborigines16. The language barrier meant that Aboriginals could

not understand British laws, and when arrested, could not be tried properly because the

white people did not understand their language17 (Appendix A shows an attempt by

Governor Davey to present the laws visually in the hope of overcoming this barrier).

The tension between the settlers and the Indigenous population was further

exacerbated by the influence of newspapers, which depicted colonists as courageous

pioneers who were victims of the harsh conditions on the frontier18. The settlers began to

see themselves as helpless and isolated, and needed to defend themselves against the harsh

conditions of drought, poverty and attacks from Aboriginal tribes19. As a result, the British

colonists continued to expand across the country without regard for the rights of the

Indigenous people.

Background to the Area

During the early settlement era, high demand for Australian wool and other products

led to rapid expansion throughout New South Wales20. The Masters and Servants Act of

15 Reynolds, Henry and Bruce Dennett. The Aborigines. (Melbourne: Oxford University Press, 2002), 111. 16 Reece, R. H. W. Aborigines and Colonists: Aborigines and colonial society in New South Wales in the 1830s and 1840s. (Sydney: Sydney University Press, 1974), 143.

This book was controversial as it highlights the “Great Australian Silence,” presenting the idea that Australian history had been misinterpreted. The book does not fully consider Aboriginal perspectives, using only white sources.

17 Ibid, 144 18 Wood, Rebecca. “Frontier violence and the bush legend: the Sydney Herald’s response to the Myall Creek massacre trials and the creation of colonial identity.” History Australia 6.3 (Essay, Student Resource Center - College Edition Expanded via Gale [A215515639], 2009), 67. Accessed September 15, 2010. http://find.galegroup.com/gps/infomark.do?&contentSet=IAC-Documents&type=retrieve&tabID=T002& prodId=IPS&docId=A215515639 &source=gale&srcprod=CCRE&userGroupName=61schools&version=1.0 19 Ibid 20 Reynolds and Dennett, Aborigines, 110.

http://find.galegroup.com/gps/infomark.do?&contentSet=IAC-Documents&type=retrieve&tabID=T002&%20prodId=IPS&docId=A215515639%20&source=gale&srcprod=CCRE&userGroupName=61schools&version=1.0



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1828 protected the interests of squatters21, giving them the power to threaten and punish

Aboriginals22. Massacres were a frequent occurrence and in 1837 - the year before the Myall

Creek massacre - 200 Aboriginals were killed in Gravesend, NSW23, and in January of 1838,

40 Aboriginals were massacred at Waterloo Creek24. In both cases, the perpetrators were

allowed to walk free.

George Gipps was appointed Governor of New South Wales in 1837 and found that

communication between Sydney and Whitehall was slow and uncertain25. Despite the

general feeling amongst the settlers, he fought for more humane policies for Aboriginal

people26. In discussions with Lord Glenelg, Gipps agreed that conflict would be reduced if

they could demonstrate that the Aboriginals and colonist were equally protected by the

law27. In spite of his diligence in implementing policies reflecting his beliefs, the colony

appeared to view Gipps as a weak governor and did not value his authority. Gipps soon

became unpopular with the colony, as they degraded any leader who attempted to improve

the conditions of the Aboriginal people, viewing it as detrimental to their safety28. The

influence of the colony became clear when Gipps instructed the Chief Protector of

Aborigines that the Government’s goodwill for the Aboriginals should not outweigh the

focus on economic growth29.

In 1837, the same year that Gipps became governor, Henry Dangar set up the Myall

Creek Station about 400km from Sydney and was managed by William Hobbs30. This

21 Squatters were those who took claim on land without legal title, usually for grazing livestock. 22 Blanch, Russ. Massacre: Myall Creek Revisited. (Delungra: Grah Jean Books, 2000), 22.

Detailed investigation of the Myall Creek massacre, with bias towards Aboriginals. Source provided insight into the events of the massacre.

23 Racism: No Way!. “Key Dates.” Last modified November 15, 2005. http://www.racismnoway.com.au/library/keydates/index-1800s.html#1830.

Heavily biased site that portrays Aboriginals as victims at the hands of white colonists. 24 Ryan, Lyndall. “A Very Bad Business: Henry Dangar and the Myall Creek Massacre 1838.” The University of Newcastle. Accessed February 3, 2011. http://www.newcastle.edu.au/Resources/Schools/Humanities%20and %20Social%20Science/Research/SCCRG/Henry%20Dangar%20and%20the%20Myall%20Creek%20massacre.pdf 25 McCulloch, Samuel Clyde. “Gipps, Sir George (1791-1847).” Australian Dictionary of Biography Online. Accessed February 3, 2011. http://www.adb.online.anu.edu.au/biogs/A010412b.htm?hilite=myall;creek 26 Ibid. 27 Connor, J. The Australian Frontier Wars 1788-1838. (Sydney: The University of New South Wales Press, 2002), 113 28 Reynolds, Frontier, 185 29 Ibid, 41 30 Stubbins and Smith, Myall Creek Massacre, 2

http://www.racismnoway.com.au/library/keydates/index-1800s.html#1830

http://www.newcastle.edu.au/Resources/Schools/Humanities%20and%20%20Social%20Science/Research/SCCRG/Henry%20Dangar%20and%20the%20Myall%20Creek%20massacre.pdf


http://www.adb.online.anu.edu.au/biogs/A010412b.htm?hilite=myall;creek


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distance from Sydney meant that messages could take months to pass between them31.

Three ex-convict men were employed on the station under Hobbs’ management, who would

later be involved in the massacre: Charles Kilmeister, George Anderson and Andrew

Burrowes32. The men were very isolated on the station, which caused them to adopt the

same fear and prejudice as the rest of the colony: they constantly armed themselves for

protection from the Aboriginals, despite the fact that they never had any problems with

them33. The negative attitudes towards the Aboriginals were not based on experience, but

fear.

The Massacre

New South Wales entered a period of drought and economic difficulty around 1837,

which placed additional strain on those working on the stations on the frontier34. By May

1838 the drought in McIntyre region meant that 50 Aboriginals from the Wirrayaraay

people had to move to a location with water35 and Kilmeister convinced Hobbs to allow the

tribe to stay on the Myall Creek station. Based on letters from Gipps, there was no evidence

that the Aboriginal tribes had done anything to provoke or harm the settlers in the area36.

After the arrival of the Aboriginals, Hobbs and Burrowes went away from the station and

left Anderson in charge, and on June 10, the men of the tribe left to work on another station

cutting bark, with only the women, children and old men remaining37.

31 Blanch, Massacre, 36 32 Milliss, Roger. Waterloo Creek: The Australia Day Massacre of 1838, George Gipps and the British Conquest of New South Wales. (Ringwood, McPhee Gribble, 1992), 277.

Very useful and detailed account, covering the events before and after the massacre. Book shows evidence of extensive research, cited in many other texts.

33 Ibid, 279 34 Reece, Aborigines and Colonists, 142 35 Ryan, Very Bad Business, 5 36 House of Commons - Parliament - Great Britain. Copies or extracts of despatches relative to the massacre of various aborigines of Australia, in the year 1838, and respecting the trial of their murderers. (London: House of Commons, 1839), 34

Excellent primary resource containing letters and reports from Gipps and other people involved in the investigation, trial and hangings of the seven convicts. Biased to the views of those writing the letters, who were white settlers, giving important insight into attitudes and ideas of the day.

37 Ryan, Very Bad Business, 5


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John Fleming was determined to punish the Aboriginals for conflict on other stations,

and assembled the group of killers38 (Appendix B contains the map showing the route taken

by the men). Fleming and the group arrived at Myall Creek station on Sunday 10th June

1838, roped the remaining Aboriginals together and led them away from the station, joined

by Kilmeister. Two of the old men were shot in the stockyards, and the rest were massacred

with swords39. At Anderson’s request, some of the tribe had remained behind, who were

allowed to escape once the killers left; however, the men pursued and murdered them.

Following this, the killers returned to Myall Creek station to burn the bodies and hide the

evidence of the murders40.

When Hobbs returned and saw the tribe missing, he questioned Anderson and

Kilmeister over what had taken place, and eventually discovered the burned bodies. After

discussions with a neighbouring settler, Hobbs sent Frederick Foot to report the massacre to

Sydney in July 183841.

The Role of the Governor

Once Governor Gipps received report of the massacre, he immediately recognised it

as an opportunity to implement the new policies of the British Government and set an

example of offering equal legal protection for the Aborigines42. Gipps sought to

demonstrate to the colony that the Aborigines would receive the same treatment as the

convicts, and sent Police Magistrate Edward Day with the mounted police for find the killers,

who had a reputation for executing the law with justice and integrity. Although John

Fleming could not be located, Day arrested eleven of the men and reported seeing the

massacred Aborigines43. Following the arrest, various newspapers such as the Sydney Herald

accused Gipps of not adequately protecting settlers on the frontier44. In reality, the settlers

38 House of Commons, 34. 39 Horton, 746 40 Stubbins and Smith, 5 41 Blanch, 82 42 McCulloch 43 House of Commons, 35 44 Blanch, 115


11

felt that Gipps should condone the killers’ action simply because they were white, and the

Aborigines did not deserve to have equal protection.

However, the letters between Gipps and Lord Glenelg show that Gipps was acting in

direct response to the instruction of the British Government, coupled with his views on the

equal importance of the lives of Aborigines45. Glenelg supported Gipps’ response to the

massacre, especially since the settlers had clearly been acting aggressively towards the

Aborigines, and were not merely retaliating as the law allowed. These letters sent before

the trials demonstrate the Government’s determination punish the convicts and create

better equality between the colonists and Aboriginals.

The First Trial

The eleven captured killers were brought to trial before the Supreme Court on the

15th November 1838: Charles Kilmeister, William Hawkins, John Johnstone, Charles

Toulouse, James Lamb, Edward Foley, James Parry, James Oates, George Palliser, John

Russell and John Blake46, charged with the murder of the Aboriginal male, ‘Daddy.’ even

though the body had not been recovered and there were no witnesses to the specific

crime47. The prosecution was lead by Attorney-General John Hubert Plunkett, who was

known for his belief in equal protection of Aborigines before the law48.

Aside from the testimony given by Hobbs of seeing the bodies, no substantial

evidence could be brought forward, since Daddy’s body was not recovered and no witnesses

could testify with absolute certainty that they had seen his remains49. On this basis, the jury

deliberated for a mere fifteen minutes, and found them not guilty, to the cheers of the

court. Nonetheless, John Plunkett was not satisfied, and immediately requested another

opportunity to prosecute the men and revise his case.

45 House of Commons, 33 46 Ibid, 35 47 Stubbins and Smith, 8 48 Suttor, T. L. “Plunkett, John Hubert (1802-1869).” Australian Dictionary of Biography online. Accessed February 3, 2011. http://www.adb.online.anu.edu.au/biogs/A020299b.htm?hilite=myall;creek 49 Stubbins and Smith, 8



12

Before the investigation had even begun, Gipps realised the pursuing the case would

result in uproar from the colony, but was prepared to face this in order to fulfil his duty and

strive for equality. As expected, there was a great deal of hype among the colony over the

trial. It was clear that the negative views of the colony had in fact affected the outcome of

the trial, with one of the jurors commenting:

“I look upon the blacks as a set of monkies, and the earlier they are exterminated from the

face of the earth the better. I would never consent to hang a white man for a black one. I

knew well they were guilty of the murder, but I for one would never see a white man suffer

for shooting a black.”50

Clearly, the prejudices against Aboriginals held by Australian society were influencing the

treatment of Aborigines before the law.

The newspapers became quite divided in their treatment of the trial, with some

minor newspapers supporting the Government in their determination to give the Aborigines

equal treatment. The Sydney Herald, on the other hand, took the stance of idealising white

settlers in order to defend the actions of murderers51. In fact, the day before the trial, the

14th November 1838, they published the following statement:

“We say to the Colonists, since the Government makes no adequate exertion to protect

yourselves; and if the ferocious savages endeavour to plunder and destroy your property, or

to murder yourselves, your families, or your servants, do to them as you would do to any

white robbers or murderers - SHOOT THEM DEAD, if you can.”52

The Sydney Herald was noted for its influence on public opinion, building on the idea of

white supremacy by dehumanising the Aborigines and taking a firmly negative stance on

Aboriginal rights. The jury were well aware of the point of view of the colony and the media

at the time, which evidently impacted their decision. Despite the efforts of the Government

to improve the legal rights of the Aborigines, public opinion and media influences had

sufficient power to change the judgement of the court.

50 “To the Editor of The Australian.” The Australian, December 8, 1838, 2 51 Wood, Frontier Violence and the Bush Legend 52 “The Sydney Herald.” Sydney Herald, November 14, 1838, 2


13

The Second Trial

According to Plunkett’s request, a second trial was held on 27th November, in which

seven of the men were charged with the murder of an Aboriginal child: Charles Kilmeister,

William Hawkins, John Johnstone, Edward Foley, James Oates, James Parry and John

Russell53. Due to the increasing excitement over the case amongst the citizens of Sydney,

the court had difficulties finding people who were willing to serve on the jury54. There was

some debate over whether the convictions were actually the same as those of the first trial,

using the plea of “autrefois acquit”55. The jury decided that the trial was different, with the

judge ruling that there was sufficient evidence of the description of the child for them to be

accused56. The trial continued two days later on 29th November before a different jury, with

evidence given from Thomas Foster, Hobbs, Day and Anderson57. The seven men were

found guilty, with the three judges unanimously deciding to support this decision, and the

seven men were sentenced to death. They were hanged at 9:00am on 18th December

183858.

Plunkett had hoped to bring the remaining men to trial at a later date, but in the

wake of public pressure after the second trial, it did not take place59. The general public

became resentful to the issue of Aboriginal rights as they felt the hangings were simply the

result of the British Government meddling in Australian affairs60. A first-hand account from a

settler, Alexander Harris61, who lived at the time of the massacre describes the aftermath of

the trials. He suggests that the hangings did not improve the relations with Aboriginals

because the authorities did not fully understand their behaviour and only made matters

53 R. v. Kilmeister and others. 110 (Supreme Court of New South Wales, 26 November 1838) 54 Reece, 151 55 House of Commons, 35 56 Stubbins and Smith, 9 57 Ibid 58 Ibid, 10 59 Goodall, Heather. Invasion to Embassy. (St. Leonards: Allen & Unwin, 1996), 31 60 Ibid, 46 61 Although it is attributed to Alexander Harris, the author of the text is in fact unknown, as the original manuscript identified him only as ‘An Emigrant Mechanic.’ The editor of this edition, Manning Clark, commented that much of the author’s self-description appeared to be false, and that he probably used a different name on all his records, with Alexander Harris as his pen-name. Since all the records from the original publishing company had been destroyed, there was no way of knowing who he was. However, the text remains one of the most detailed accounts of everyday life in the early Australia colony.


14

worse62. Settlers became more hostile towards Aborigines and were less welcoming of them

on their land. In addition, the colonists became more secretive about the murder of

Aborigines, ensuring that murders were performed away from the notice of officials and

that any evidence was removed, often using poison to hide the cause of death. The officials

appeared to realise that they had gone too far by hanging the men, and the situation in the

colony was allowed to reach a worse state than before the hangings.

The second trial also received a great deal of publicity, with the media attacking

Governor Gipps for failing to introduce sufficient measures against the Aborigines and

increasing the public ill-feelings for them. The Sydney Herald and Commercial Journal

particularly encouraged the release of the prisoners. Plunkett realised the impact of the

media on the jury and requested a court order to prevent the Sydney Herald from writing

further articles on the case, but Judge Burton refused63. Nevertheless, Plunkett’s request

emphasises just how significant the role of the media was in determining the treatment of

the Aboriginal people.

Reconciliation for the events at Myall Creek was finally made on 10th June, 2000, on the

162nd anniversary of the massacre with the erection of a memorial stone.

Legal Fallout

Before the trials, the murder of Aboriginals was not seen as a punishable crime.

Although Plunkett was able to overcome the opposition from the colony to obtain the

desired outcome, his success did not teach the lesson that Gipps was hoping for64. Instead

of preventing further violence, the settlers made efforts to conceal their actions and avoid

being caught65. Prosecution of white men was rare and it appeared that the courts gave up

on controlling the violence and conflict on the frontier.

The Aborigines continued to receive unequal treatment before law and being

punished beyond the levels of white men: 90 Aborigines have hanged themselves in

62 Harris, Alexander. Settlers and Convicts. (Carlton: Melbourne University Press, 1964), 221 63 Reece, 150 64 “The late Hon. J. H. Plunkett.” The Argus, May 12, 1869, 7. 65 Blanch, 116


15

Australian prisons between 1982 and 1988 alone66. The fact that Australian courts

continued to regard Aborigines differently from white men indicates that the power of

public opinion was not isolated to the Myall Creek trials alone; it demonstrates that these

attitudes have had a lasting impact on the entire legal system, and continued to affect the

treatment of Aborigines even 150 years after the event.

Political Fallout

The prosecution of the perpetrators of the massacre was fuelled by a political

agenda to create precedent for the new policies being implemented by Gipps and the British

Government. Governor Gipps saw that the circumstances between the colony and the

Aborigines had returned to its original state, and declared:

“All we can do now is to raise, in the name of Justice and humanity, a voice in favour of our

poor savage fellow creatures, too feeble to be heard at such a distance.”67

The former Australian Prime Minister, Gough Whitlam, stated in 1992 that:

“We have made too little progress in Aboriginal affairs, primarily because the State opposes

it68.”

Both statements, although over a century apart, recognise that the situation was beyond

the control of the Government because of the huge influence of public opinion on the

relations with Indigenous people.

Social Fallout

The public flooded Gipps and Plunkett with angry response to their actions,

demanding that Plunkett resign from his position as Attorney-General69. The colony

66 “Reflections on Nation-building.” Sydney Morning Herald (online), January 26, 1988. http://www.fugitives.com.au/fugitives-articles/1988/1/26/reflections-on-nationbuilding/ 67 Reynolds, Frontier, 40 68 Pattel-Gray, 44 69 Reece, 147

http://www.fugitives.com.au/fugitives-articles/1988/1/26/reflections-on-nationbuilding/


16

responded to the hangings by employing tactics for evading legal retribution and the hatred

towards Aborigines mounted.

There were still some colonists who were sympathetic towards the Aborigines,

including Eliza Dunlop, who published a compassionate poem entitled ‘The Aboriginal

Mother’ just before the hangings (see appendix C). However, such people formed a minority

and their support for Aboriginal rights was too insignificant to make any difference. The

decline in race relations after the trials solidified into nation-wide racism that removed any

prospect of closing the divide between Aboriginal and white Australians.

The Census in 1901

In 1901, Australia had its federation, which saw all the states uniting as one nation.

That year, the first census was taken of the Australian population, but it did not include

those of indigenous descent. In addition, the “White Australia” and assimilation policies

were implemented, essentially forcing Aboriginals to adopt and conform to European

customs, and leave behind their own language, history and culture70. At the time, the

general public saw the Aborigines as a problem that merely wasted their resources in their

efforts to “protect them71.” It was not until 1967, after a federal referendum, that

Aborigines were counted in the census; however, the Aborigines were never given a vote or

say in whether they would be counted72. This illustrates that the attitudes of white

Australians and the Government had not changed: Aborigines were still regarded as subjects

to the more supreme and powerful white people, and were not given equal treatment to

other Australian citizens.

70 Ibid, 29 71 Ibid, 30 72 Simmons, Gary. “The Other Side of the Rabbit-Proof Fence.”Australian Screen Education. (Essay, Academic OneFile [A108050391], 2003), 42. Accessed October 13, 2010. http://find.galegroup.com/gtx/infomark.do?& contentSet=IAC-Documents&type=retrieve&tabID=T002&prodId=AONE&docId=A108050391&source=gale& srcprod=AONE&userGroupName=61schools&version=1.0

http://find.galegroup.com/gtx/infomark.do?&%20contentSet=IAC-Documents&type=retrieve&tabID=T002&prodId=AONE&docId=A108050391&source=gale&%20srcprod=AONE&userGroupName=61schools&version=1.0




17

Conclusion

This investigation asked the question: How did the public response to the outcome

of the Myall Creek massacre trials cement the unequal treatment of Aboriginals before

the law, and subsequent exclusion of Indigenous Australians from the 1901 census? The

historical research demonstrated that the equal treatment of Aboriginals during the Myall

Creek massacre trials provoked an overwhelming negative response from the colony, which

caused race relations to rapidly decline from that point. As a result, when Australia had its

federation in 1901, the Government chose to exclude Aborigines from the calculations,

illustrating that they were still not valued as equal citizens in Australian society.

From the arrival of white colonists in 1788, the Aborigines were degraded and

denied equal rights. Myths and misconceptions of their behaviour meant that the

Aborigines were feared and hated by the settlers. By the time of the Myall Creek massacre

in 1838, the colonists perceived themselves as victims, causing outrage from the public and

the media when the killers were brought to trial. Although Governor Gipps intended to use

the trials as a way of demonstrating the equality between the Aboriginals and the convicts,

the hangings only caused greater resentment towards Aborigines from the colonists, and led

to a decline in their relations. With these negative attitudes firmly engrained in Australian

society, the Government chose to exclude Aborigines from the 1901 census, whilst

implementing the “White Australia” and assimilation policies to further degrade their

position in society. The Myall Creek massacre did not just affect those immediately involved:

the outcome of those trials sparked a public reaction that would come to define the

Australian nation and influence the treatment of Aborigines before the law for centuries to

come.


18

Works Cited

Primary Sources

1. Harris, Alexander. Settlers and Convicts. Carlton: Melbourne University Press, 1964

2. House of Commons - Parliament - Great Britain. Copies or extracts of despatches

relative to the massacre of various aborigines of Australia, in the year 1838, and

respecting the trial of their murderers. London: House of Commons, 1839

3. R. v. Kilmeister and others. 110. Supreme Court of New South Wales, 26 November

1838

4. “Sworn to no Master, of no Sect am I.” The Sydney Herald, 5 December, 1838: 2.

Accessed 30 June, 2011: http://nla.gov.au/nla.news-article12859164

5. “The late Hon. J. H. Plunkett.” The Argus, May 12, 1869, 7.

6. “The Sydney Herald.” Sydney Herald, November 14, 1838, 2

7. “To the Editor of The Australian.” The Australian, December 8, 1838, 2

Secondary Sources

1. Australian Heritage Database. “Place Details: Myall Creek Massacre and Memorial

Site.” Accessed February 3, 2011, http://www.environment.gov.au/cgi-

bin/ahdb/search.pl?mode=place_detail;place_id=105869

2. Blanch, Russ. Massacre: Myall Creek Revisited. Delungra: Grah Jean Books, 2000

3. Connor, J. The Australian Frontier Wars 1788-1838. Sydney: The University of New

South Wales Press, 2002

4. Goodall, Heather. Invasion to Embassy. St. Leonards: Allen & Unwin, 1996

5. Horton, David. The Encyclopaedia of Aboriginal Australia. Vol. II. Canberra: Aboriginal

Studies Press, 1994

6. Milliss, Roger. Waterloo Creek: The Australia Day Massacre of 1838, George Gipps

and the British Conquest of New South Wales. Ringwood, McPhee Gribble, 1992)

http://nla.gov.au/nla.news-article12859164




19

7. McCulloch, Samuel Clyde. “Gipps, Sir George (1791-1847).” Australian Dictionary of

Biography Online. Accessed February 3, 2011.


8. Pattel-Gray, Anne. The Great White Flood: Racism in Australia. Atlanta: Scholars

Press, 1998

9. Racism: No Way!. “Key Dates.” Last modified November 15, 2005.

http://www.racismnoway.com.au/library/keydates/index-1800s.html#1830.

10. Reece, R. H. W. Aborigines and Colonists: Aborigines and colonial society in New

South Wales in the 1830s and 1840s. Sydney: Sydney University Press, 1974

11. “Reflections on Nation-building.” Sydney Morning Herald (online), January 26, 1988.

http://www.fugitives.com.au/fugitives-articles/1988/1/26/reflections-on-

nationbuilding/

12. Reynolds, Henry and Bruce Dennett. The Aborigines. Melbourne: Oxford University

Press, 2002

13. Reynolds, Henry. Frontier: Aborigines, Settlers and Land. Sydney: Allen & Unwin,

1987

14. Ryan, Lyndall. “A Very Bad Business: Henry Dangar and the Myall Creek Massacre

1838.” The University of Newcastle. Accessed February 3, 2011.

http://www.newcastle.edu.au/Resources/Schools/Humanities%20and

%20Social%20Science/Research/SCCRG/Henry%20Dangar%20and%20the%20Myall%

20Creek%20massacre.pdf

15. Simmons, Gary. “The Other Side of the Rabbit-Proof Fence.”Australian Screen

Education. Essay, Academic OneFile [A108050391], 2003, 42. Accessed October 13,

2010. http://find.galegroup.com/gtx/infomark.do?& contentSet=IAC-

Documents&type=retrieve&tabID=T002&prodId=AONE&docId=A108050391&source

=gale& srcprod=AONE&userGroupName=61schools&version=1.0

16. Stubbins, Ted and Paulette Smith. The Myall Creek Massacre: Its History, Its

Memorial and the Opening Ceremony. Bingara: Edwards Printing, 2001


http://www.racismnoway.com.au/library/keydates/index-1800s.html#1830










20

17. Suttor, T. L. “Plunkett, John Hubert (1802-1869).” Australian Dictionary of Biography

online. Accessed February 3, 2011.


18. Wood, Rebecca. “Frontier violence and the bush legend: the Sydney Herald’s

response to the Myall Creek massacre trials and the creation of colonial identity.”

History Australia 6.3 Essay, Student Resource Center - College Edition Expanded via

Gale [A215515639], 2009, 67. Accessed September 15, 2010.

http://find.galegroup.com/gps/infomark.do?&contentSet=IAC-

Documents&type=retrieve&tabID=T002& prodId=IPS&docId=A215515639

&source=gale&srcprod=CCRE&userGroupName=61schools&version=1.0






21

Appendix A

In an attempt to clarify the government’s position on the treatment of aborigines under the

law, the following proclamation was made in 1816 by Governor Davey73:

73 Blanch, Russ. Massacre: Myall Creek Revisited. (Delungra: Grah Jean Books, 2000), 133


22

Appendix B

Map showing the movements of the killers, led by John Fleming74.

74 Milliss, 305


23

Appendix C

A poem written by Eliza Hamilton Dunlop in her outrage over the Myall Creek massacre.

Oh! hush three - hush my baby,

I may not tend thee yet.

Our forest-home is distant far,

And midnight’s star is set.

Now, hush thee - or the pale-faced men

Will hear thy piercing wail,

And what would then thy mother’s tears

Or feeble strength avail!

Oh, could’st thy little bosom

That mother’s torture feel,

Or could’st thou know thy father lies

Struck down by English steel;

Thy tender form would whither,

Like the kniven on the sand

And the spirit of my perished tribe

Would vanish from our land.

For thy young life, my precious,

I fly the field of blood,

Else had I for my chieftain’s sake,

Defied them where I stood:

But basely bound my woman arm

No weapon might it wield:

I could but cling round him I loved

To make my heart a shield.

I saw my firstborn treasure

Lie headless at my feet,

The goro on this hapless breast,

In his life-stream is wet!

And thou! I snatch’d thee form their sword,

It harmless pass’d by thee!

But clave the binding cords - and gave,

Haply, the power to flee.

To flee! my babe - but whither?

Without my friend - my guide?

The blood that was out strength is shed!

He is not by my side!

Thy sire! Oh! never, never,

Shall Toon Bakra hear our cry:

My bold and stately mountain-bird!

I thought not he could die.

Now who will teach thee, dearest,

To poise the shield, and spear,

To wield the koopin or to throw

The boommerring, void of fear:

To breast the river in its might:

The mountain tracks to tread?

The echoes of my homeless heart

Reply - the dead, the dead!

And ever must their murmur

Like an ocean torrent flow:

The parted voice comes never back

To cheer our lonely woe:

Even in the region of our tribe,

Beside our summer streams,

‘Tis but a hollow symphony -

In the shadow-land of dreams

Oh hush thee, dear - for weary

And faint I bear thee on -

His name is on thy gentle lips,

My child, my child, he’s gone!

Gone o’er the golden fields that lie

Beyond the rolling cloud,

To bring thy people’s murder cry

Before the Christian’s God.

Yes! o’er the stars that guide us,

He brings my slaughtered boy:

To shew their God how treacherously

The stranger men destroy:

To tell how hands in friendship pledged

Piled high the fatal pire;

To tell - to tell of the gloomy ridge!

And the stockmen’s human fire.

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