The early days
The New South Wales Courts Act 1787 (UK) enable His Majesty to establish a Court of Criminal Judicature on the Eastern Coast of New South Wales, and the Parts adjacent. Judicial authority was invested in the local commandants, who were given the powers of magistrates. Established Although the British intended to transport English law and legal proceedings along with the convicts, in practice there were significant departures from English law in the new and distant Colony. Notably, the first civil case heard in Australia, in July 1788, was brought by a convict couple. They successfully sued the captain of the ship in which they had been transported, for the loss of a parcel during the voyage. In Britain, as convicts, they would have had no rights to bring this case.
In 1824 Queensland became both a subject and an instrument of British justice when Moreton Bay was selected as the suitable location for a new penal settlement.
When the penal colony closed in 1840 the Superintend Convict, William Whyte became the chief constable. He also took over the function of postmaster from the Commandant. He moved into the vacant house next to the Convict Barracks (corner George Street) from where he also operated the the post office.
When the Moreton Bay penal colony closed in 1842, Courts of Petty Sessions were established. Until his death in 1844 Whyte was also the clerk of the court. Most of these courts were presided over by lay justices of the peace functioning on the traditional English model.
The Police Act of 1838 provided for appointment of police magistrates and justices to suppress riots, tumults, and affrays in towns. In 1843, after his retirement from the Royal Navy, John Wickham was made Police Magistrate of the Moreton Bay District. He was charged with looking after the general government interest and was the Representative of the Governor. He had a handful of conscripted men as his assisting force. He operated from the Old Convict Barracks. On arrival he appointed William Fitzpatrick as the new chief constable, replacing the elderly Whyte. By that time there were also four constables under his command. A clerk and watch-house keeper complemented the team.This was substantial force as the settlement at that time had a population of not more than 300 people. It however does reflect the frontier mentality with a relative high level of low level crime and disturbance.
Under the leadership of Wickham – between the 1840s and 1850s – the free settlement of Moreton Bay saw further reforms, legal, governmental, social and policing . A Police Magistrate, Court of Petty Sessions opened in 1846, a new Police Force was organised in 1850. While changes to the act were made, the structure and the work of the police force in Brisbane remained more or less the same over the next few decades.
The Water Police – originally under the relevant NSW Inspectors. The first Water Police Magistrate for Moreton Bay was appointed in 1859 and in 1863 it became independent from NSW. The force consisted of the Inspector, a coxswain, a carpenter and five constables, one of then also acted as the cook. The were stationed in the hulk the Proserpine at the mouth of the river, off Lytton. The Water Police eagerly used imprisoned rebellious sailors for their own service needs.
In 1860 the ‘ordinary’ police force consisted of the chief constable, three sergeants, one acting sergeant and 18 constables. The chief officer from the military regiment in town, David Thompson Seymour was in 1864 appointed as the Police Commissioner of Queensland a position he held until 1895. By that time the force had 921 staff, operating from 222 stations.
Native Police and the war with the Aboriginal inhabitants
Policing land regulations in remote districts was established in 1839, Controlling river traffic became increasing more busy and a special Water Police Force was set up in 1840. The Native Police or Mounted Aboriginal Police force operated in Queensland from 1848 till 1915. Under the command usually of a single white office, Aboriginal men from previous ‘cleaned’ frontier areas operated as a death squad to clear the land of other Aboriginal people so the new settlers could take the land and settle there. They are best known for conducting widespread extrajudicial shootings of Aboriginal people under the official euphemism of “dispersal”. Its mode of operation cannot by any standard be classified as “law enforcement”. Yet consequent governments showed a blind eye to the massacres that these terror organisations conducted.
From the period 1859 onward to the 1890s there are no signs that this force was engaged in anything but general punitive expeditions, commonly performed as deadly daybreak attacks on Aboriginal camps. All signs are that the force generally took no prisoners at the frontier and in the few cases on record when this did happen these prisoners were on record as having been shot during attempts to escape.
This ‘police work’ led to many massacres, the largest in Australia being the Cullin-la-ringo massacre in 1861 were 300 Aboriginals were killed in Central Queensland. Research from professor Raymond Evans and Danish historian Robert Ørsted-Jensen calculated the indigenous fatalities caused by the Queensland Native Police Force. They concluded that there were over 650 massacres with in all closer to 65,000 Aboriginals killed. The frontier wars also saw the death of approx 1500 settlers including their family members and workers. The last Native Police camps in Queensland were closed in 1915. Until this day (2021) these issues have not not properly been addressed in Queensland. Until this is done the State will never be able to properly built its relationship with its indigenous people.
With the white settlers moving further away from the center of Brisbane, conflicts with the Aboriginal inhabitants of these lands only increased. Resistance in the north was severe. Settlers who started to take over the land from the Ningy-Ningy people were attacked. In response the Native Police made an end to this by establishing barracks in the middle of the Aboriginal camps where they stayed from 1859 till 1865. By that time very few Aboriginals were left, they were either killed or had moved further north again, only to wait for the next onslaught. There were the barracks of the Native Police stood stand now the Church of the Sacred Heart, you couldn’t have a bigger contrast.
At the time of Separation in 1859 there were three full-time magistrates (police magistrates). They were integral to the development of the free settlement, taking up a variety of responsibilities today conducted by local government authorities.
More serious crimes remained under the jurisdiction of the judicial authorities in Sydney. In 1850 the NSW Supreme Court introduced a circuit assize court at Moreton Bay, allowing serious criminal cases to be heard at Brisbane during routine visits by a Sydney-based judge. Roger Therry was the first Circuit Court judge to visit Brisbane.
The only legal training or instruction many of these early magistrates had was from watching proceedings at the circuit courts, or later by references to manuals such as J. K. Handy’s 1869 Queensland Magistrate’s Guide.
The Sheriff, a role taken from England but adapted over time to suit local exigencies, also assisted the business of the court. W. A. Brown was appointed as the first Queensland Sheriff in 1859. The Queensland Sheriff was charged with the function of serving writs, summoning jurors and executing other court orders and processes. Bailiffs were appointed to assist him in these duties under the Sherriff Act of 1875.
In 1855 the New South Wales government enacted the Moreton Bay Judge Act authorising the appointment of an additional Supreme Court judge to help oversee the district. The Supreme Court at Moreton Bay was established in 1857 operated from the chapel of the old convict barracks in Queen Street. Samuel Frederick Milford became the first resident Supreme Court judge. After independence Alfred Lutwyche took over, he became the first judge upon its official creation in 1861.
The Supreme Court continued to sit at the convict barracks in Queen Street but by 1870 it had become apparent that a purpose-built courthouse was needed. Chief Justice Sir Charles Lilley opened the new building on George Street in 1879.
During the late nineteenth century judges came into conflict with the Queensland government on several occasions. In 1863 Justice Lutwyche’s outspoken public involvement in Queensland politics brought him close to removal. At this stage judges had tenure for life ‘during good behaviour’ and could only be removed on orders by the Governor as representative of Crown. The matter could then be the subject of appeal to the Privy Council in England. As a result, Governors and governments were loath to adopt such means of removal. Lutwyche’s position was saved when the Chief Justice, Sir James Cockle, extracted a promise from him that he would refrain from further political commentary. Thirty years later, Chief Justice Lilley was compelled to resign by a mixture of public and private pressure as a result of his support for socialist and republican causes.