AE 655.2 – Aussie Fact: Capital and Corporal Punishment in Australia

Learn Australian English in this Aussie Fact episode of Aussie English where we talk about the history of capital and corporal punishment in Australia.

AE 655.2 - Aussie Fact: Corporal and Capital Punishment Australia transcript powered by Sonix—the best automated transcription service in 2020. Easily convert your audio to text with Sonix.

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G'day, you mob! Welcome to this Aussie English Fact episode. Today we're going to be talking about corporal and capital punishment in Australia. So, what it's been like throughout history. We're going to cover both indigenous customary laws related to corporal and capital punishment, as well as the European corporal and capital punishment laws that came when Australia was settled in 1788, ok? So, let's get into it.

Today I thought I'd discuss the history of corporal and capital punishment in Australia, both in terms of how it was carried out under customary indigenous laws and in the context of European law. So, first, let's go through Indigenous customary law and history.

Corporal and capital punishment would have first arrived in Australia with the very first indigenous Australians to set foot on the continent some 60 thousand years ago. During that time and throughout the period of European settlement, indigenous people still governed themselves by their own laws and corporal and capital punishment were handed down by the elders of the tribe. Before we get into the details of these punishments, let me tell you about what payback is in the context of indigenous customary law.

So, payback is a form of physical and sometimes deadly punishment carried out by elders or victims to members of a group who broke the law. Payback is an element of indigenous law and where grievances exist or arise, payback is expected to occur when an incident happens. Members of the involved parties meet and negotiate a way to restore balance so that the tribal family, relationships and friendships can continue. This includes the desire of the victim party for retaliation and revenge and the desire of the offending party for paying back their debt that had been incurred.

Accepting the right to punish the guilty party was important for preventing revenge attacks in the future and subsequent further escalation of conflict. Thus, the primary reason for payback was to restore peace and maintain balance both within and between groups of indigenous people, whilst also assisting, healing and helping both parties move on with life. When a certain party agreed to payback, they may have had to make a gift or accept a physical punishment.

These, as well as marriage exchanges, ceremonial relationships and rituals, generated and fortified connections that would keep people and the tribe from further violence and conflict. So, payback was carried out in a formal and organised way where the punishment usually took place in a controlled environment where onlookers would restrain participants from being too overzealous with penalties that were determined.

Prior to European colonisation of Australia, payback was very prevalent all over Australia and usually it included spearing as the punishment. And this would address crimes such as offending an elder, stealing items or stealing a woman, dating someone from the wrong tribe, crossing cultural boundaries without asking permission.

So, trespassing into other people's lands or other tribes lands and also perceived sorcery. And these will be punished by corporal punishment, not the death penalty. So, here's a little clip from a YouTube channel called Private Forever, where an indigenous man from northern Australia describes why you might get speared by an elder.

In my tradition and culture, you disrespect the elder, you get speared. Alright, now very easy, oh, let's just say I've gone out hunting for the day, I've broken a spear, I'm in a crusty mood. My grandfather's waiting at home for me. Now, I'll tell my grandfather's outside, he's gone "how you going, boy?", and I've just gone "Shut up, old man! Get out of my way.". Right then and there in my custom, he would have slapped me, stripped me off my spear, and he would've pointed it straight at my leg.

Now, the spear is going to go in three parts of my leg of his choice. First one. Right next to the groin. Nice and fleshy right there. Second. Right here under the leg. Third. Right in the muscle, right there. So, that's where he's going to be having fun. So, what my grandfather does, walks up, tells me, prepare myself, and he pushes it right in. Now, to make me feel as much pain as possible, he's going to have a lot of fun, 'cause what he does then is twist the blade all around.

Oh no!

Now if I scream from the top of my lungs, he has the right to pull the spear out into my other leg. 'Cause every time a bloke screams, you're not classed as a man no more, you're classed as a little girl. So, this punishment is going to keep on going and going until I pass out or stop screaming. This is how he is making me feel the maximum pain of the spear.

Punishment may be elevated to the death penalty, capital punishment, if the following crimes were committed: rape, murder or breaking marriage laws. These were incredibly important laws to indigenous people. A man had the right to kill his wife if adultery was committed and if a married man committed adultery against his wife and eloped with another woman, quite often the tribes men would go out, find the man and he would face spearing, where each male member of the tribe would throw a spear at him. If he managed to survive the spearing, he'd often be forced to be at the forefront of the next inter-tribal fight where he might be speared by the enemy, but also by members of his own tribe if they were still angry.

Let's have another listen to that same clip from before, where the indigenous man now describes how rapists were marked and punished.

Alright. The last is about sexual assault, rape, very bad violence. Now, usually you'd think we'd murder these people straight out for doing something like this. What we do is we do something else. We make everyone realise who the bad people are in the country. By one piece of... Just by one little move.

Now, does anyone know how do I make a rapist stand out in the crowd? I'll scar him, alright. But do you know where? Anyone know whereabouts?

Chop it off.

I leave that alone. I'm using this. Alright, everyone. This is how I'll make a rapist stand out right in the open for us. Put the spear straight through his tendon. Now, that's a permanent limp for the rest of his life and he's banished from his clan. So now, he should be in the bush by himself walking around with this limp.

So, this is how we can actually see rapists actually coming and going across the land. These bad people, they were the ones who limped all the time and that were by themselves. So, let's just say this is my little community, we're about to have breakfast and a bloke limps out in front of us. The first thing that these women would have done is gone up and ran off to the nearest bloke and said, here, there is a bloke limping over, I want you to have a look at this. Now, I'd jumped up with my spear, alright, then I'll go and have a look. Oh there he is! And I'd have chucked the spear on the ground.

Now, I could have went out there and speared him. It's just, I don't want to do that. How do I know he's not an innocent person? He could've just fallen over, sprained his ankle, bitten by a snake, broken his leg, stuff like that. So, that's why I didn't run out there and attack it. So, I sit back, wait, and I want him to come to me. As he's coming towards me, I'm looking at his scarrings on his body. Do I know you? Yep. Alright. Now, as I notice that single mark on his heal. Boom! The spear will be flicked up out of the ground, straight into the spear thrower and points it straight at him. And we go, "What are you doing here? You're not welcome. You must leave this country.".

If he goes, I'm just looking for a bit of water or food, I'll say, well, that's fine, get your water, get some food, but I don't want to see you again. You must leave. If he's caught later on in that day, still hanging around, you can imagine what's going to happen, either with this spear or that boomerang.

After European colonisation, payback was often doled out by indigenous people to settlers who did things like stole from them or worse, abducted and assaulted Aboriginal women. In fact, the very first governor of New South Wales, Governor Phillip, was actually speared through the shoulder by an indigenous man in what is thought to have been a form of payback. Probably the first payback carried out against a European.

The story goes that Governor Phillip had previously kidnapped an Aboriginal named Bennelong, who he forced to learn English, who started functioning as a go-between for the British and local indigenous people. Bennelong ran away one day, and when Phillip approached Bennelong, who was with a large group of indigenous people on a beach eating a whale carcase together, he ended up being speared by another man who then ran away. The wound wasn't fatal, and Philip took the punishment on the chin and hoped to restore good relations between the local people and the British. And shortly after, Bennelong returned to live with the British.

Let's have a listen now to this clip from the Natural History Museum on YouTube, where Dr Sandy O'Sullivan discusses the customary law of payback as it was applied to Governor Phillip and his reaction.

If they wanted to kill him, they would have through the heart, through the head. It's obviously a wound that's not intended to kill. It's intended to maim. It's really the basic thing that happens with payback in Aboriginal communities, which is to wound and then to have that wound heal. That's actually a very recognisable Aboriginal response to being kidnapped, having something terrible happened to you. Payback is what happens, what was really interesting about it is that Philip's not particularly negative about it. It doesn't stop the ongoing relationship, for instance, with Bennelong and with the Aboriginal people.

In a darker side to Australian history, the European settlers often meted out their own justice on indigenous people in revenge attacks for things like theft of their livestock, and this often included hanging or shooting indigenous people. Now, before we get into European history here, I thought I would tell you an interesting story about the Kurdaitcha.

So, the Kurdaitcha was a magic man, a clever man or a shaman that belonged to a tribe called the Arrernte in Central Australia. Now, most tribes had their equivalent of a magic man or a clever man. You could also be sentenced to death by these kinds of men if you were found guilty of witchcraft or black magic or sorcery that had led to the death of another person at the time.

Indigenous Australians from across the entire continent had supernatural belief systems in the past, and many of them still have them today, by which they lived their lives. Among traditional indigenous Australians, there's no such thing as a natural death. All deaths are believed to have been caused by evil spirits or spells influenced or cast by an enemy person. Usually a dying person would whisper the name of the person they thought had caused their death to the Kurdaitcha.

If their identity wasn't known, a Kurdaitcha would look for signs such as an animal burrow leading from the grave of the victim, showing the direction of the guilty party. Sometimes it might take years, but the identity was always eventually discovered of the murderer. Elders of the tribe of the deceased would then hold a meeting and decide suitable punishment, which usually included death.

Another interesting aspect to the Kurdaitcha was bone pointing, and this is where he would create a small bone that would be used to kill someone by pointing it at them. And when the person saw this happen, quite often they believed the Kurdaitcha had effectively sentenced them to death by pointing that bone at them. And there was an interesting story from 1958, 59, where an indigenous man in northern Australia showed up to a hospital claiming that he had been the victim of bone pointing and that he was dying. Although the doctors found nothing wrong with him medically, after a few days, he ended up passing away. So, now let's move on to European Australia.

Western corporal and capital punishment first arrived in Australia in the year 1629, when the Dutch were shipwrecked in a ship called the Batavia off the Western Australian coast. In a nutshell, most of the 322 passengers and crew managed to get ashore, but 40 were drowned. The survivors, including men, women and children, were transferred to a nearby island on the ship's longboats to wait for rescue whilst the captain and some crew members sailed to the city of Batavia, modern day Jakarta, in Indonesia for help. Whilst away, a man named Cornelisz led a group of men who took control of everyone. He was a mad man, an absolute psychopath, a nut job, and he wanted to start his own kingdom with the silver and gold that was racked in the Batavia ship.

To do so, he first needed to eliminate all possible opponents and also control all of the supplies. He took all the weapons, as well as all the food supplies, and coerced his followers to murder at least 110 of the surviving men, women and children. Upon their rescue, though, his atrocities were discovered. In this clip that I'm going to show you, journalists Liam Bartlett, from 60 Minutes, describes Cornelisz and his men's punishment. Check out the full video on 60 Minutes on YouTube to find out more about Batavia.

In another Australian first there was a trial and seven of the mutineers were sentenced to hang. Cornelisz had both hands chiselled off before they strung him up. During the trials, he showed no remorse. You know, he would exhibit, I guess, the traits of a psychopath, someone who was... clearly had no morality. Right to the end, he...

No remorse. None at all. None. How many survivors were there at the end of the entire episode? Was something like just over 80, nearly 90 make it back to Jakarta. So, to Batavia.

Out of everybody.

Out of everybody. Out of the 340 there about who probably came here.

That's a lot of death and destruction, isn't it?

The Batavia incident remains Australia's first and biggest mass murder, as well as the first hanging. It would be nearly 160 years until the next corporal or capital punishments were carried out on Australian soil upon the arrival of the First Fleet on the opposite side of the continent at Port Jackson, modern day Sydney. The First Fleet was transporting nearly 1500 people to the unknown land of New Holland, which they would claim and establish a British colony on. The cargo of the First Fleet comprised the supplies of the colony, as well as about 50 per cent of its members and forced labourers, some 790 convicts.

In order to maintain law and order, corporal and capital punishment were handed down to anyone who broke the laws and put the survival of the colony at risk.

So, corporal punishment - flogging was the primary form of corporal punishment during this time, and it was doled out for a series of crimes or for repeated misbehaviour. Usually, the weapon of choice was a cat o' nine tails, a whip that had a wooden handle with nine thin braided strips of leather attached, of which the leather strips were usually tied at the end in order to cause the flesh to tear when the victim was whipped. Such a punishment would be ordered by a magistrate of the court or by the Governor himself. The guilty offender would often be tied to a three legged wooden frame in a standing position in a public place where everyone was able to come and watch as the punishment was being meted out.

In order to assure the perpetrator's life was not at risk, a doctor watched the punishment while it happened. In the case of convicts, those who meted out the punishment were often other convicts themselves who were called 'scourgers' and were probably given the job because they were larger and stronger than the other men. The target of this punishment was usually the back or the butt cheeks.

You could be flogged for a range of different crimes, including leaving the barracks without permission, 25 lashes, not doing your work, 25 lashes. Insolence, 25 lashes, pretending to be sick, 50 lashes, disobeying orders, 50 lashes, gambling, 50 lashes, missing work or attempted rape, a hundred lashes, theft or stealing, between 50 and 300 lashes and running away from the colony, 300 lashes.

Other punishments for early Australian convicts also included solitary confinement with a diet of bread and water for weeks at a time, being chained up in leg irons and attached to a chain gang to work as a hard labourer and being chained to a large treadmill with other convicts. That was a long wooden cylinder that acted like a never ending staircase for those attached to it. Let's have another listen to an excerpt from the Sydney Living Museum.

Secondary punishments like flogging and solitary confinement were designed to break the body and the spirit, being clapped in leg irons, chained to other convicts and forced to work on iron work gangs was another common form of punishment. We know of 13 year old John Donnelly, who was sentenced to 12 months working on an iron work gang. And this punishment served the dual purpose of not only bringing a convict to heel, but also providing a central labour force for important building projects like like building roads over the Blue Mountains.

Being set upon the treadmill worked in much the same way, and as it turned out, there was a treadmill attached to Carters Barracks. Corn was important food staple in the colony, particularly for the convict breakfast, but it had to be ground, so convicts could be punished by being forced to walk the steps of a large wheel that turned a millstone and ground the corn. Again, our records show 14 year old William Tagwell was sentenced to six weeks on the treadmill for making away with his government-issue shoes.

The death penalty. The majority of convicts brought to Australia had originally been given the death penalty back in Britain, but they'd had their sentence commuted to seven to 14 years transportation to Australia. By the 1770s, British law had gone through a huge change where there were now 222 crimes, almost all of which were against property, i.e. theft or robbery, where the punishment was now to receive the death penalty. Offences included stealing goods worth over five shillings or the equivalent of a few hundred dollars today.

And they could be as trivial as cutting down a tree, theft of an animal, theft of a rabbit from a warren. In fact, some convicts ended up being transported to Australia for a crime as trivial is stealing a hairbrush, a book, or even a scarf or handkerchief, right? A small piece of cloth. This was because the industrial revolution had kicked in during this period, and it had led to an uptick, an increase in petty crime because of economic displacement of much of the population. Let's have a listen to this excerpt from Sydney Living Museum's video on child convicts.

18th and early 19th century Britain was a place of upheaval. The industrial revolution meant that new machines replaced rural workers who moved to cities to find work. This and the return of soldiers from the wars with France and America led to overcrowding, lack of employment, poverty and a rise in crime. Children sometimes became orphaned and homeless, living on the streets and begging for food.

Some had no choice but to resort to stealing by picking pockets or robbing shops and houses. How do you think the authorities responded to this? They imposed harsh penalties for even minor crimes like theft, and being a child did not protect you from the harsh punishments. In fact, children as young as seven were treated the same as adults in the courts. They were thrown in jail, transported beyond the seas, but worse still, hanged.

With all these thieves now going to jail, the government had to find a solution with where to send them in. Ultimately, Australia proved to be the answer. The first governor of Australia, Arthur Phillip, believed in severe punishment for all members of the colony, not just convicts. Executions by hanging were commonplace right from the get-go after the arrival of the First Fleet in Port Jackson.

It may seem brutal, but you have to remember that Governor Phillip's colony was on the edge of a vast unknown land full of hostile inhabitants, on which it was really hard to farm food. Simultaneously, establishing a viable colony was taking place on a knife's edge. Food supplies were often running low with people on rations, making the maintenance of peaceful relationships with the locals paramount, as well as the avoidance of rampant stealing of supplies by members of the settlement, convict or not.

As such, numerous hangings of both soldiers and convicts took place in the years following colonisation, when people committed crimes, including murder in the colony, murder of an Aboriginal person, and theft of food supplies. The very first person to be executed in the new colony of Port Jackson was a convict called Thomas Barrett. He had conspired with three other prisoners to steal food from the government's stores when the colony was already running low and everyone was receiving rations. After a quick trial, he was taken to a large tree on a hill that is now The Rocks in Sydney and was hanged.

His body was left there for one hour as a deterrent to others. Both the corporal punishment of flogging and the capital punishment of hanging lived on in Australia up until the 20th century. Between the years of 1820 and 1900, some 1500 people were hanged for breaking the law in Australia. From 1901, up until the very last state outlawed the death penalty, only 114 more people would be hanged. In the 19th century and onwards, you could receive the death penalty for things like burglary, sheep stealing, forgery, sexual assault, murder and manslaughter. So, when did Australia get rid of corporal and capital punishment?

The last execution to take place on Australian soil occurred in 1967. A man named Ronald Ryan was hanged in Victoria for the murder of a prison guard, George Hodson, when he and a fellow inmate broke out of and escaped from jail. Ryan's hanging was met with public outrage and large scale protests which erupted across the nation, carried out by those who were very opposed to the death penalty. Here's reporter Brian Joyce's reaction to watching the execution as he recounts it on a Channel 7 news story on the 50th anniversary of Australia's last execution.

Former 7 News reporter, Brian Joyce, took us into D Division where he witnessed the hanging.

I could tell that Ronald Ryan was calm and also, a man prepared for his fate.

He still gets nightmares.

This was a medieval act conducted in a medieval place.

Between 1967 and 1984, several more people were sentenced to death, however, their sentences were commuted to life imprisonment. By 1985, all Australian states and territories had abolished the death penalty. Interestingly, Queensland was the very first to do so in the year 1922, and New South Wales was the last to do so in 1985, some 63 years later. Interestingly, corporal punishment in Australia had faded out and the last flogging was delivered some 10 years before the last execution. And this was to two men named Taylor and O'Meally in Victoria on the 1st of April in 1958.

Corporal punishment in Australia's schools, however, carried on well after it was abolished for criminals. Misbehaving school kids could be caned by their teachers, an act that often included being struck over the hand or knuckles with a long wooden stick or cane, and sometimes even a wooden paddle. States and territories began to ban the practice of caning school students in 1983. However, it's still technically legal in both South Australia and Queensland, though, likely never carried out today.

Parents and carers still have the right to dole out corporal punishment to their children in the form of spanking. Australian law states that corporal punishment by a parent or carer is lawful and is not considered child abuse, provided that it is, 'reasonable'.

So, that's it for today, guys, I hope you found this episode interesting. I definitely did researching it as I didn't know very much about the history of corporal and capital punishment in Australia, and I would love to know what you guys think about corporal and capital punishment. Do you think it's something that should still exist in the law, whether in Australia or elsewhere in the world? With that, guys, thanks for joining me and chat to you soon. Peace!

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