Lawless and
Disorderly

法律秩序的缺失

In this chapter, we find out about laws First Nations peoples had in place for tens of thousands of years before colonisation. We look at the people whose rights expanded during the gold rush and compare them with those for whom democracy ran in reverse as their rights and freedoms were cut back. We meet Bushrangers, rebels and law reformers who featured heavily in gold rush history.

Police life in Victoria, January 15, 1881, State Library of Victoria.

First Laws & Lore

第一法则与传说

This section was contributed by Deanne Gilson and Tammy Gilson, Wadawurrung Traditional Custodians.

“Prior to colonisation, Wadawurrung people lived by the lore of the great creator spirit Karringalabil. Turning himself into a man, he began to create Wadawurrung Country; plants, animals, waterways, mountains, people and time. Once he did this, he turned himself into a wedge-tailed eagle we now call Bundjil. Bundjil’s lore states that we must take care of this Country and respect it, in turn Country will take care of people, providing food and shelter. The most sacred lore of Bundjil is to take care of our children and never harm them, for they are the future lore holders of the land.

Wadawurrung people were quite advanced in their thinking. There was no inequality between Aboriginal men and women; men did not dominate women, and all the work was shared and respected in a spiritual sense. Many ceremonies were created from lived experiences and basic needs, like a ceremony for fishing or welcoming the brolga back to Country. These dances are still recognised and danced today. Bundjil’s lore deemed the land and all the people sacred and equal. All abided by the laws to care for Country and each other.

By the time the gold rush hit, First Nations peoples living in Ballarat were almost exterminated with only a few Wadawurrung surviving. Conflicts raged across many frontiers, exacerbated by Martial Law declaring Aboriginal people could be killed on sight. Original Custodians also died of diseases imported on arriving ships, including smallpox, tuberculosis, venereal disease, measles and whooping cough. Many more were removed from Country and placed into government missions.”

Colonial Law
and Government

殖民法律与管制

Advance Australia, federation [realia]:[souvenir handkerchief of Australian Federation], National Library of Australia, nla.obj-61282855.

Colonial Australia of the late 1800s comprised of six colonies. Each had its own laws, government and taxes, but all were ultimately subject to the law-making power of the British parliament. Britain controlled the colony through a governor appointed by the Queen. If the governor disagreed with a bill proposed by the Council, the bill could be stopped and referred to the British government. Long delays were common, and the inefficiency of this system factored in the building desire for Federation.

The call for self-government

As the population surged and mining communities thrived, there were growing calls for self-government. These demands were partly fuelled by the imposition of gold licenses and other restrictions.

Miners objected to gold licences costing 30 shillings a month, payable in advance. Many believed this was hefty taxation without representation. The diggers called for the toppling of the "squattocracy" in which only wealthy British men had the right to vote.

Glorious News! Separation At Last!, Melbourne Morning Herald, 1850, State Library of Victoria.

Their protests helped drive enormous political changes, including the introduction of self-government across the colonies.

By forming their own two-house systems of parliament, colonies claimed wider powers over local issues.

The need to protect and promote common interests led to inter-colonial conferences of premiers beginning in 1863. A draft federal constitution was drawn up in 1891, and after intense debate in 1898, it was submitted to the British parliament for approval. The British parliament ratified the constitution. After eligible voters had endorsed federation and the constitution in a series of mini state-wide referendums, the Commonwealth of Australia came into being on January 1, 1901.

Rights for whom?

The story of Australia's journey to Federation is often told as one of growing rights and democracy. But an important question to ask is: Growing rights for whom?

To answer this question, you might want to start off by asking what "democracy" means. What comes to mind when you think of democracy in Australia? Can you think of any values or principles linked with democracy? Some people talk about ‘equality for all before the law’.

Now look at this detailed timeline from the Museum of Australian Democracy. You will notice many major democratic reforms, including granting the right to vote and to stand for office to more and more British subjects in Australia. Over time this included women as well as men. But the timeline also mentions ‘democracy in reverse’ – the deliberate reduction and removal of the civil rights of some Australians. One example is the Victorian Aboriginal Protection Act (1869), which gave the ‘Board for the Protection of Aborigines’ control over Aboriginal peoples’ lives and livelihoods. Can you find other examples of democracy in reverse during the gold rush era?

Three views of Law and Order on The Goldfields

对淘金场法律与秩序的三个看法

Law and order had different meanings on the Australian goldfields depending on your identity.

The licence inspected 1852, S. T. Gill (artist) 1818-1880, 1872, State Library of Victoria.

European diggers:

Many diggers complained about lawlessness on the goldfields and the routes between the diggings and Melbourne. Armed robberies and violence were common, and the newspapers were filled with reports of murder. The English visitor Ellen Clacy advised,

“[N]o one intending to turn digger should leave England without a good supply of firearms. In less than a week, more than a dozen robberies occurred between Kyneton and Forest Creek – two of which terminated in murder.”

Victoria Gold License, John Ferres (printer), 1853, State Library of Victoria.

Diggers also protested the gold licence system, which required them to pay a steep monthly fee for permission to dig for gold and keep what they found. Beginning in late 1851, they began to organise mass protest meetings – called ‘monster meetings’ – to demand change. On Monday 15 December, 15,000 diggers gathered at Forest Creek to defy the colonial government’s plans to double the cost of their gold licence. This protest caused Governor La Trobe to back down and leave the licence fee unchanged. This was the beginning of a campaign that would ultimately contribute to an armed insurrection; the Eureka Stockade.

First Nations peoples

Historian Fred Cahir writes that the violence and dangers of the goldfields were even greater for First Nations peoples; “…the records of violence and murder against Aboriginal people by non-Indigenous people during the gold rush period were very extensive.” This historical research echoes the stories passed down to the descendants of First Nations peoples who experienced this violence.

Massacres and other crimes against First Nations peoples were rarely prosecuted. One reason for this was the inadmissibility of their evidence in court. As Aboriginal and Torres Strait Islander peoples were regarded as “heathens”, they could not swear on the Bible. This rule also made it impossible for First Nations peoples to defend themselves when any charges were brought against them in court.

At the same time, First Nations peoples resisted these efforts to dispossess, harm and silence their communities. In the First Entrepreneurs section of this website, you can find details of some of the methods of economic resistance used by First Nations peoples. Other resistance in Victoria came in the petitions of leaders like Wurundjeri Elders Simon Wonga and William Barak, who called for land rights and freedom from colonial interference.

Chinese residents

The lawlessness of the goldfields included ongoing racist violence and harassment of Chinese people. According to the Many Roads: Stories of the Chinese on the goldfields virtual exhibit,

“Violence, bullying, bashings, name-calling and cruel practical jokes were common. Claim-jumping, where a group of miners would take over someone else's profitable claim was considered the worst of poor form in the European community. However, claim-jumping of Chinese mines was almost encouraged in some quarters, making Chinese miners vulnerable and exposed to theft.”

At times these attacks escalated into violent riots designed to drive Chinese people off the goldfields.

Though the Chinese community was the frequent target of violence, it was closely scrutinised by colonial authorities and the media, who insisted on its links with perpetrating crime.

Crimes against Chinese people were also frequently unpunished. In Beechworth, the Anti-Chinese League raised funds to defend the organisers of a violent riot that had destroyed 750 tents, 30 Chinese stores and a Chinese temple and caused the entire Chinese population to flee the diggings. None of the rioters were found guilty of assault or robbery.

From 1855, the government's discrimination against Chinese residents also intensified. A 10-pound fee was imposed on Chinese people arriving in Victoria by ship (equivalent to $10,000 today according to the Sovereign Hill blog). From 1857, Chinese residents faced additional annual taxes between four and six pounds. These taxes far exceeded the monthly licence fee that European diggers considered exorbitant. Chinese communities also argued for their rights and organised campaigns of resistance.

Vigilante
‘Justice’

擅自“施法”

Chinese in Lambing Flat riots, December 1860, National Archives of Australia, NAA: A12111, 2/1918/20A/2.

In Victoria, diggers formed their own "protection committees". The “justice” they meted out could be brutal. Thieves were flogged or chained to trees for days. There are reports of near lynchings and the humiliation, maiming and even killings of those accused of crimes by the crowd.

Typically, if a dispute could not be resolved, a "roll-up" would be called to allow the community to deliberate on the punishment. This expression for a diggers’ mass meeting is now also associated with the thousand-strong crowds of vigilante diggers who violently attacked Chinese miners and forced them off the diggings.

Jason Phu, ROLLING ROLLS ROLLED ROLL, 2018, ink on sheet, dimensions variable, 4 works, each work 1200 x 1200mm.

Today these actions would be referred to as hate crimes.

A report on the Lambing Flat anti-Chinese riots notes that the crowd, “cut off the queue [pigtails] from Chinese miners, scalped some of them. They burnt the Chinese miners’ tents, brutalised them.”

Although vigilante violence was common, it is often left out of official records and was probably under-reported. Historian Karen Schamberger says that in the 19th and 20th century, official histories omitted the anti-Chinese mob riots altogether. Information about these events is, however, found in newspaper reports, archaeological sites and in the oral histories of affected communities.

These histories also capture the efforts of those who challenged hate crimes. For example, farmer James Roberts and his wife provided refuge to around 1200 Chinese miners fleeing the Lambing Flat riots.

Crime
but not always
Punishment

并非总是受到惩罚的犯罪

We know that Chinese gold seekers were often the targets of race-based hate crimes including lethal violence, bashings, scalping (the removal of men’s pigtails or braids/queues), harassment, theft and property destruction.

There are extensive records of violence and murder against First Nations peoples during this period (please note the weblink provided in this paragraph contains distressing information). These crimes also extended to abuse, poisoning and shooting of animals, desecration of graves and interference in Aboriginal affairs.

Might versus right by S.T. Gill, c.1862-1863, J.T Doyle's sketches in Australia by John Thomas Doyle & Samuel Thomas Gill, Mitchell Library, State Library of New South Wales.

Violence against women

Historian Clare Wright writes that women were particularly vulnerable to violence because they were the property of their husbands under the law in this era: “A wife was construed as having the legal status of a chattel; an item of property, no better than a slave.”

Domestic violence was common and was not seen as a crime in this period. There were no systems in place to support survivors fleeing this violence.

True stories of crime

The podcast Tales from Rat City often features true and untold stories of crimes on the Ballarat diggings. These are brought to life using court and newspaper records from the period.

Claim jumping

If claims were not guarded, they could be "jumped" or taken over by others, and disputes were often settled by fights. An underground version of claim jumping was the practice of "undermining", which involved digging into the adjoining claim. Some diggers took to sleeping in their workings to guard against unwanted fossickers.

Bushrangers
on the roam

丛林大盗四处漫游

As a penal colony, Australia was a destination for thousands of prisoners who had previously filled the English and Irish gaols. Often their crimes were minor. Once in the colonies, convicts endured long hours of hard labour, poor accommodation and food shortages. As a result, many prisoners became "bolters", preferring to take their chance in the bush rather than live a convict life.

Item 19: [Wanted poster, offering a reward for information leading to the capture of Ned Kelly], 13 December 1878, Dixson Library, State Library of New South Wales.

One of the most famous of these bolters was Englishman William Buckley, who was taken in and befriended by the Wadawarrung people, with whom he lived for 32 years.

Others became early bushrangers, robbing travellers and farmers for food, money, guns and horses. The attacks were often brutal since their perpetrators had little to lose. Bushrangers became greatly feared throughout the colony. Bushranging gained momentum as the gold rush brought an influx of immigrants and wealth to the bush. There were no banks on the goldfields, and those who found wealth had to keep their treasure with them. They became easy targets for thieves.

The former convicts were followed by a new generation of outlaws. Among them were some of Australia's more infamous bushrangers such as Frank Gardiner, Ben Hall, Captain Moonlite and Ned Kelly.

Less well-known bushrangers included Mary Ann Bugg, a proud Worimi woman. Mary Ann was born of an Aboriginal mother and convict father near Gloucester, New South Wales. Often dressed in men's clothes, she was an expert horse rider and bush navigator who roamed with her partner, Captain Thunderbolt (Fred Ward) across the colony as he robbed travellers, stations, pubs and stores while evading police. Thunderbolt remains a popular folk hero. He is known for having the longest bushranging career in New South Wales, but Mary Ann's help was crucial for his survival. She taught Thunderbolt to read, gave him food and shelter, helped him outwit police and cared for him when he was shot. Later when she was arrested, she wrote her own petition to the governor.

Jason Phu, The 5th Reincarnation of Sam Poo, Infamous Bushranger and the Mustard Horde: The Last Stand (detail), 2018. Type C photograph. Image courtesy and © the artist. Photograph: Leanna Maione.

Australia’s only known Chinese bushranger, Sam Poo, arrived in New South Wales before the gold rush as an indentured labourer. He was active in the Coonabarabran region during 1865. Accused of shooting a police sheriff, Poo was the target of a manhunt that ended in his imprisonment and hanging in the old Bathurst gaol in 1865. He took no part in his trial and possibly had little understanding of what was going on. The government-appointed interpreter did not understand Poo's southern dialect.

Historian Meg Foster suggests that non-white bushrangers were often demonised even in cases where there was no evidence of their crimes. Meanwhile their European counterparts were immortalised in national history, often embraced as larrikins despite their crimes.

Transporting
Gold

黄金运输

Arrival of the first gold escort William St. Melbourne June 1852, William Austin, 1852, Sate Library of Victoria.

From the earliest days of the gold rush, diggers needed a secure method to get their gold to cities, where prices were higher than on the diggings. They could take the gold themselves, but that meant leaving the field and their claim. It also brought the risk of being held up by bushrangers, who terrorised, robbed and even killed for gold.

At first, the government organised a weekly armed escort with the mail, but as gold discoveries increased, it became apparent that the mail service had insufficient capacity. Transporting gold was so dangerous that a higher level of security was needed.

The first official gold escort left Ballarat for Geelong and Melbourne in September 1851. Diggers were charged a shilling per ounce to have their gold escorted. However, there was no guarantee of safe delivery or acceptance of liability for loss if the gold didn’t arrive. If the digger could not produce a receipt and proof of identity when reclaiming their gold, it was forfeited to the government. The treasury also put strict limits on the amount of gold that could be collected by women. A woman could only receive up to 1.5 ounces of gold, while the average consignment was well over a pound.

The British 40th Regiment was given the responsibility for escorting the gold. First Nations men also joined the escort. They were members of what was called the "Native Police Corp", which helped protect the gold from thieves and bushrangers in Victoria.

It was a difficult life for these Aboriginal troopers, who often came from communities that had been dislocated. There is evidence of physical and verbal abuse towards them by their commanding officers. Many people objected that the First Nations men had been given the same authority as the police force. Head to this Sovereign Hill resource to find out more about mounted police.

Marlene Gilson, Eureka Stockade, 2018, acrylic on linen, Image courtesy of the Art Gallery of Ballarat. Photo credit Peter Freund.

The gold escort proved to be a lucrative business. A group of Melbourne businessmen seized this opportunity and established a private transport service in 1852, known as "Dight’s Light Cavalry". It was disbanded in 1853 when Dight died. Other private gold escorts continued to operate alongside the official Gold Police.

The gold escorts were very slow, averaging six kilometres per hour along the rough roads. Many of Victoria’s country towns were founded to service the gold escorts that passed through them. These towns were later known as "10-mile towns" because 10 miles (approx. 16 kilometres) was the average distance that diggers could cover in a day as they trekked to the goldfields.

Police

警察

Collection: Melbourne drawings, 1861-1901, William Strutt Dixson Library, State Library of New South Wales.

As the Victorian gold rush gathered pace, the population of the goldfields soared. It became very clear that the colony’s police force was ill-equipped to deal with escalating crime rates. Matters were made even worse when in July 1851, all but two of Melbourne’s policemen quit and fled to the goldfields in search of riches.

This led to growing calls for increased law enforcement and protection, and the appointment of a small contingent of First Nations mounted police. The duties of these First Nations troopers were wide-ranging and included finding people lost in the bush, escorting travellers, tracking bushrangers and other criminals and delivering mail.

They were provided with a horse and weapons and their families were able to obtain rations. However, their salary remained exceedingly low, and sometimes the government failed to pay them at all.

After this, a contingent of heavily armed police was introduced. These police received higher wages if they fined diggers mining without a licence. Known for their force and brutality, they applied fierce methods to their "licence hunts", which drew protests from diggers. In 1853, 8,000 Victorian diggers signed a petition objecting to the "sending of an armed force to enforce the License Tax". They complained that diggers were being treated like criminals; those found without a licence were sometimes chained to trees and logs and punished by being forced to do hard labour.

The new police force also intensified its focus on the Chinese camps. A deepening racist obsession with “Chinese vice” led to the appointment of Chinese policemen or “headmen", who were meant to report back on activities in the settlement. The most famous of these was Fook Shing, also known as "colonial Victoria's Chinese detective", a version of whose story can be found here.

The Eureka Stockade

尤里卡城寨之战

Before you start

Eureka Stockade riot, Ballarat, 1854, J. B. Henderson (artist), Mitchell Library, State Library of New South Wales.

Watch: The National Museum has produced a 6-minute live-sketch animation of the Eureka story as told by historian David Hunt.

Read: Read these primary sources from around the time of the Eureka Stockade. They include a poster plastered on the Ballarat diggings in November 1854, a charter outlining the Ballarat community's demands and a map which served as evidence in the trial after the Eureka Stockade (Source: Public Record Office of Victoria).

In order to dig for gold after 1852, miners in Victoria had to pay for a gold licence. Taxes were also collected for each newly made claim.

The monthly licence fee was not only expensive but had to be paid irrespective of whether the digger discovered gold or not. The miners protested that they were lumbered with the tax even though they didn't have the right to vote. In contrast, the landowners of the colony had the vote and paid far less tax.

On November 29, 1854, this meeting was held on Bakery Hill in Ballarat. About 12,000 diggers attended after being advised by organisers to “[b]ring your Licenses, they may be wanted”. They stood beneath a new flag, the Southern Cross, and burned their licences. The next day, Gold Commissioner Rede ordered a license hunt, further emboldening the diggers to take up arms.

Bakery Hill Meetings Poster (VPRS5527/P0000), Eureka Stockade Historical Collection (VPRS 5527), 1854-11-29 - 1855-12-31, Public Records of Victoria

Eureka Stockade

Peter Lalor, Ludwig Becker (artist), 1856, State Library of Victoria.

On December 1, the miners met again. Irish organiser Peter Lalor called for volunteers to join the fight against the police and military. Several hundred took an oath of allegiance to the Southern Cross and marched off to the Eureka diggings where they built a rough stockade from timber. They stockpiled their firearms inside.

In the early hours of Sunday December 3, almost 300 troopers launched a pre-emptive strike on the 120 diggers that were left inside the stockade. The battle was over in 15-20 minutes. Five troopers and 22 diggers were killed. Women and children were located inside the stockade, and at least one woman was among those killed. She was "mercilessly butchered by a mounted trooper,” as eye-witness Charles Evans recorded in his diary three days later. Many diggers were taken prisoner, but Peter Lalor escaped.

Aftermath

The rebellion resulted in the near elimination of licence hunts. The Victorian jury that adjudicated the trial of 13 leaders of the uprising acquitted all but one: Henry Seekamp, the editor of the Ballarat Times. He was sentenced to six months for treasonous libel.

The aftermath of the stockade included a sweep of law reforms. The gold licence was abolished and replaced by a ‘miner's right’, costing just one pound per year. This gave the digger the right to mine gold and vote in the elections for parliament.

Peter Lalor and John Humffray were elected unopposed in 1855 to the Legislative Council, and the former became Speaker of the House of Assembly in 1880. Miners were given eight representatives on the Legislative Council.

A First Nations view of The Eureka Stockade

Marlene Gilson, Eureka Stockade, 2018, acrylic on linen, Image courtesy of the Art Gallery of Ballarat. Photo credit Peter Freund.

The Eureka Stockade is set against a history that spans millennia on Country. Artist and Wadawarrung Elder, Marlene Gilson, weaves the rich oral history of her ancestors King Billy and Queen Mary into her artwork. These ancestors lived at the time of the gold rush.

Her painting Mount Warrenheip and Eureka Stockade shows the stockade in the context of the lives of Wadawurrung people, who were central to events on the diggings.

The impacts of The Eureka Stockade

尤里卡城寨之战的影响

The Eureka Stockade (or Rebellion, as it is known) was a crucial step towards Australian democracy. It helped establish equality and a ‘fair go for all’ as national values. Since 1854, leaders from all sides of politics have often named the Eureka rebels and the Southern Cross flag among their inspirations. The Eureka events have been memorialised in public statues, postage stamps, films, TV shows, art and literature. Peter Lalor has a Victorian suburb and federal electorate named after him.

However, the Eureka story also has links to one of the most disturbing chapters in Australian history; although a political triumph for the miners, the Eureka Rebellion also contributed to development of the White Australia Policy.

White Australia: the great national policy song, 1910, National Library of Australia, nla.obj-241278811.

From the mid-1850s, anti-Chinese racism was increasingly embraced by lawmakers. This sentiment was advanced at the (post-Eureka) Victoria goldfields reformation commission, where diggers complained that the influx of "a pagan and inferior race" to the goldfields was a serious problem.

Growing anti-Chinese racism urged governments to introduce laws restricting immigration. In New South Wales, this resulted in the Immigration Restriction Act and Regulations of 1861. This Act was the beginning of what is now known as the White Australia Policy (which was not fully repealed until the 1970s).

Chinese communities organised resistance campaigns to unfair taxes and laws imposed on them. They sent petitions to those in authority, wrote books arguing their cause, fought legal test cases on the constitutional right of the colony to exclude Chinese citizens and organised civil disobedience campaigns. In 1859, in Bendigo and Castlemaine, thousands of Chinese men offered themselves up for arrest for being unlicensed in a mass protest against unjust laws. Many bilingual petitions were signed with thousands of signatures from Chinese storekeepers and miners, and their allies. In The Chinese Question in Australia (1879), three Chinese community leaders, Lowe Kong Meng, Cheok Hong Cheong and Louis Ah Mouy raised their voices against discriminatory laws.

In her 2014 book The Forgotten Rebels of Eureka, Clare Wright explores the history of women in the Eureka Stockade. Women and children were a third of the Ballarat community by 1854. Wright's study highlights women who contributed to the rebellion and fought for Australian democracy as writers, political commentators, newspaper publishers, fundraisers and seamstresses (who created the iconic Eureka flag in just a few days).

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