The Oxford History of Australia. Vol. II, 1770-1860: Possessions 
by Jan Kociumbas.
Oxford, 397 pp., £25, September 1992, 0 19 554610 5
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The Rule of Law in a Penal Colony: Law and Power in Early New South Wales 
by David Neal.
Cambridge, 266 pp., £30, March 1992, 9780521372640
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Waterloo Creek: The Australia Day Massacre of 1838, George Gipps and the British Conquest of New South Wales 
by Roger Milliss.
McPhee Gribble, 965 pp., February 1992, 0 86914 156 2
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Living in a New Country: History, Travelling and Language 
by Paul Carter.
Faber, 214 pp., £14.99, July 1992, 0 571 16329 7
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Tasmania’s prodigal son, Peter Conrad, suggested recently that his island-state had ‘unwritten its own history’ in accordance with ‘a self-protective incuriosity about origins’. Tasmania’s origins lay in an act of genocidal conquest and a penal experiment, both of which were so recent and so omnipresent in their effect as to make recollection intolerable. There are certainly striking instances of this desire for amnesia. The reiterated claim that the Aboriginal inhabitants of Tasmania were extinct effaced both their demise and their uncomfortable presence. And the story is still told of the historian working in the state archives who was surprised to be asked to take tea with the Governor. His Excellency wanted reassurance that he was not chasing convict ancestors among Tasmania’s leading families.

Yet the occasion of Conrad’s suggestion belied the observation. Down Home, in which Conrad recorded his experience of ‘Revisiting Tasmania’, was one of the many publications during the bicentenary of British settlement to cater to an apparently insatiable interest in the past. The cultural politics of the Bicentenary demanded an inclusive past, one which celebrated diversity and served the growing need for vicarious atonement. Not only were convict ancestors a source of pride, but there was a desire to know an Aboriginal past, however harrowing to the white conscience it might be. The revisiting expatriate could not but be struck by the altered sensibility. As Conrad observed, ‘if anything, Tasmania possesses too much history: a succession of pasts queuing up like unappeased revenants to accuse the ignorant present.’

These four books are concerned with the moments of colonial origin, discovery, conquest and civilisation, with the formative event which begins a process that is encoded in subsequent habits, institutions and modes of thought. Jan Kociumbas’s general history of the Australian colonies begins with the flogging of three female convicts: while allowing that this was not part of any ‘formal plan’ of colonisation, she believes the event indicates the assumptions about property and authority, sexuality and family life, on which the settlement’s ‘blueprint for growth’ was premised. By contrast, David Neal’s monograph opens with a successful legal action brought by a convict couple against one of the First Fleet captains.

Neal is concerned to show how the establishment of the rule of law in a penal colony, at once a tautology and an oxymoron, created the conditions for a free society. Yet the insistent lesson of Roger Milliss’s massive account of the fatal impact of the newcomers on the indigenous inhabitants, as played out in a series of bloody encounters in New South Wales during the late 1830s, is the signal failure of the rule of law. Paul Carter’s essays offer a far-reaching re-evaluation of the processes of cultural transference triggered by the act of migration.

The most familiar of the books in form and scope is that of Kociumbas, whose brief was to write the first post-Aboriginal volume in the Oxford History of Australia. While each of the authors in that series (myself included) worked both with and against the conventions of the general history, she was presented with the greatest challenge. All of us sought to synthesise scholarly research into a literary narrative that told the story of a nation: in her case the combination of ingredients was so volatile that they threatened to burst the vessel. For almost a century, textbooks had laid down the outlines of her period. Exploration, settlement, enterprise, the redemption of penal origins through industry and enterprise, the arbitrary rule of the governors yielding to self-government, social amelioration and civic virtue – each phase following providentially in anticipation of the nation that was to be. Historians might vary in their readings of this history – for some it affirmed the British colonising genius, while for others it marked the emergence of an indigenous radical tradition – but the effect was always a lillipultian version of Whig triumphalism, a history populated by masterful individuals, whether rancorous or exemplary, whose visionary foresight established their status as national progenitors.

This approach had fallen into disfavour by the Seventies. A new generation of historians, beneficiaries of an affluent post-colonial Australia with a greatly expanded system of higher education, projected their discontent back into a wide-ranging critique of the received version of the past. Initially this took the form of a patricidal assault on the radical nationalists who were arraigned for their mythologisation of the convicts as defiant victims, the bushrangers as primitive rebels and goldfield diggers as levelling democrats. The re-evaluation widened as feminist historians discerned a uniquely oppressive subjugation of women. Aboriginal historians discovered a genocidal pattern of frontier conflict, environmental historians plotted a destructive contempt for the flora and fauna. In each case, the colonial experience was taken as formative, an intolerable past that had to be known in order to be disowned.

Kociumbas begins with chapters on the female and the male convict experience. These are explicitly grounded in the ‘new social history’, and draw on the work feminist, Aboriginal and labour historians have carried out in an attempt to reconstruct the experience of those whom Kociumbas considers to have been ‘previously under-represented in the history books’. Their experience is determined by structures of class, gender and race which are in turn generated by strategies of exploitation, control and social discipline. The reading of the material to sustain this analysis is forceful, the orchestration of the themes powerfully sustained. Kociumbas’s emphases send her back to the subject-matter of the older historiography: the first two chapters on the convict experience yield to chapters on exploration, settlement and administration, and later to innovative treatments of cultural policy, education and family formation. Familiar figures reappear in a different light: the heroic navigators become ‘hunters and collectors’, their Enlightenment project a rationalisation of conquest; a philanthropist like Caroline Chisholm appears not as a redeemer of women but as a ‘female political economist’ subduing men’s vice with women’s morality.

Providing a wide-ranging, integrated and highly readable version of the anti-triumphalist view of Australian history, Kociumbas presents a convenient target for those who would like to reaffirm the idea of a unitary and consensual national past. This campaign against ‘doom and gloom’ history was waged on the larger terrain of public spectacle during the Australian Bicentenary in 1988, and has flickered fitfully in academic journals and review pages. Some conservative historians have read this volume of the Oxford History as denying the agency of those with whom it sympathises, imprisoning them in a dungeon of remorseless determinations. Such critics lose sight of the object of her history, which, despite its title, is not the nation: Australia figures as little more than a site on which the supranational categories of gender, class and race happen to operate. If there is a problem here, it lies in the absence of a politics in the Nineties that can span these discontents and bring their oppressive structures to a resolution. It is this contemporary absence that robs the historical narrative of its binding force.

The convicts have long served as a stumbling block for those who contest the ‘doom and gloom’ view. A settlement based on penal servitude, a place of exile for 160,000 unwilling settlers, a regime of violent coercion – how can patriotic piety be constructed from such unpropitious material? In the spirit of present-day higher education, the Australian Research Council requires those who seek funding to demonstrate how their work will yield national benefit, and several teams of historians have obtained large grants to recast the convicts into more congenial data bases. One study shows their success in bearing and nurturing the first generation of native-born European Australians. Another has them as a labour supply with a higher level of skill than the workforce from which they were drawn. Such revisionist interpretations have been described by Robert Hughes as ‘normalising’ the convicts, and further instalments along similar lines can be expected; but no amount of normalising can remove the scars from the backs of the victims of the Antipodean Gulag. And while Hughes himself made significant concessions to the normalisers, no reader of his epic account of The Fatal Shore can miss the horrific abnormality of the regimen that distinguished the penal from the non-penal settlers of Australia.

A subtler, and more economical, exercise in revisionism was performed by the Melbourne historian John Hirst in Convict Society and its Enemies (1983). Hirst studied the early history of New South Wales, intent on understanding how a penal colony had changed into a free society. As he stripped away the anti-transportation campaigners’ caricatures and favourably compared conditions in New South Wales with those in early 19th-century Britain, he reached the conclusion that ‘this was not a society that had to become free; its freedoms were well established from the earliest times.’ Hirst’s argument was criticised by the legal historian David Neal for its failure to specify the meaning of ‘free society’, and Neal’s book, The Rule of Law in a Penal Colony, aims to make good that failure.

Neal’s title suggests his answer: the colony of New South Wales, in which convicts constituted a major portion of the population for the first fifty years, was not free. Its freedoms were secured over time as the restrictions made necessary by the operation of a vast open-air prison yielded to legal and political changes that culminated in the creation of a partially elected legislature in 1842. At that moment the transformation from penal colony to free society was achieved. But long before then, he argues, the principle of the rule of law served to qualify the absence of free institutions. That first action brought by the convict couple for loss of property on the voyage from England established the existence of property rights enforceable by law. For all their imperfections, the courts set limits on executive power and arbitrary rule. The defence of judicial independence, the campaign for trial by jury and the appeal to the courts for protection of individual rights provided both a language and a site of politics in the absence of representative institutions. Neal also suggests that the persistence and pervasiveness of this legal discourse stunted any alternative development of a rights-based approach within Australian political culture.

Neal describes his book as a history of the transportation, not of convicts but of ideas. He might have added that it is a history of one set of ideas: consideration of other, non-legal discourses that were brought to bear on the penal experience by the 1840s might have qualified the unitary movement from servitude to freedom. Nevertheless, Neal writes lucidly and with considerable sophistication. He is acutely aware that the colonial rule of law sanctioned a brutal discipline. In 1835, magistrates ordered 7,103 floggings to a population of 27,340 convicts. He estimates that the rate of execution during the 1830s was 200 times higher than it was in England at the same time. Whether these grisly reminders will register with the normalisers is more doubtful. The readership for his academic monograph is too restricted, the mechanisms for transmission of its argument too fragmentary, the argument itself too nuanced, to disturb present-day predilections.

Neal observes that the protection of the rule of law was almost entirely illusory for the original inhabitants of the colony. The courts were closed to Aboriginal testimony and denied the existence of their laws. He briefly notes a case which seemed to afford them some protection: the trial, conviction and execution of seven Europeans for what became known as the Myall Creek Massacre of a group of Aboriginal captives in 1838. It was an isolated case because the outcry against the prosecution was such that the Administration effectively abandoned the attempt to restrain the ‘anarchy and the extermination of the Aborigines beyond the frontier’.

The Myall Creek Massacre has long attracted the attention of historians because it marks the limits of the rule of law across the Australian frontier. The received version presents a group of assigned convicts led by a squatter’s son seeking revenge for alleged cattle-spearing. They descend on a party of Aborigines camped on a pastoral station, mostly women and children, whose men are off cutting bark on a neighbouring station. They brush aside the timorous appeals of one of the station hands, and lead their victims away to a stockyard where they are butchered. As news of the incident attracts attention, they make some attempt to dispose of the remains, but a magistrate investigates and 12 men are charged with murder. All but the squatter’s son are arrested, brought to trial, acquitted, tried again until seven are found guilty and hanged. In its essential features, this episode pits the depravity of fallen men brutalised by the hardships of the frontier against the resolute pursuit of justice by the colonial authorities. That the pastoralists retained the colony’s leading lawyers to defend the murderers, that the principal Sydney newspapers raised such a storm of protest that the Governor never again embarked on a similar prosecution, that the only non-convict culprit lived unpunished to a ripe old age, are incidental to this condign instance of the rule of law.

The Myall Creek Massacre figures prominently in Roger Milliss’s epic, but in a different context: it is only one of many incidents during the late 1830s that mark the suppression of Aboriginal resistance to the pastoral invasion of Australia. Indeed, it is wholly atypical, in that the authorities who pursued the Myall Creek murderers were themselves guilty of worse atrocities. The title, Waterloo Creek, refers to an earlier massacre in the same region perpetrated by the mounted police, and no official escapes unscathed from the investigation of its cover-up.

Waterloo Creek is written as historical drama. The scenes are described in lavish detail, the camera panning from the ‘lusty little seaport’ of Sydney to the ranges and twisting waterways of the interior. No character arrives unannounced (‘It was at this point that the principal player in the piece made an unobtrusive entrance downstage’) or leaves without notice (‘he slunk back into obscurity’). The book bulges with reportage and reconstruction, the weighing of evidence and the testing of hypotheses. Yet the reader is left to navigate its half-million words of discontinuous action and to make out their larger meaning. Milliss works almost entirely from primary sources and refers to other people’s research only to correct it. He seeks verisimilitude in the accumulation of detail, and aims to break the great Australian silence about its genocidal past by sheer weight of evidence.

That evidence is overwhelmingly drawn from official records created by administrators, police and magistrates. In the absence of Aboriginal testimony Milliss reconstructs the lives of the Kamilaroi people of northern New South Wales from European anthropology, and fleeting glimpses of their contacts with European settlers. While he proclaims their resistance, they appear more often as victims. Whereas the principal European actors have depth and complexity, the Kamilaroi have no other identity than the names that the Europeans attached to them. ‘The only picture of what it was like on the other side of the frontier’, he writes at one point, came from a newspaper correspondent. That phrase, ‘the other side of the frontier’, invokes the work of Henry Reynolds and it is odd that Milliss has not made greater use of the substantial literature on Aboriginal history published in the decade since Reynolds showed how much could be discovered from white records.

If Milliss seeks to arraign the past in order to prick the conqueror’s conscience, the object of Paul Carter’s essays on Living in a New Country is reconciliation. The title essay takes up the experience of migration as a process of psychic as well as physical relocation. The trick, he says, is to learn how to move lightly and be less possessive, to learn that our voices are shared; and he demonstrates this across a range of cultural encounters that run from the early colonial period up to the present. It will be apparent that Carter cuts across the entrenched polarities of critical and affirmative versions of colonial history. Indeed, since he suggests that the massive displacement of populations in the modern period means that we are almost all migrants, and that the real novelty is to live in an old country, his Australia assumes an exemplary significance. He is as far from the structural determinism of Kociumbas as he is from the moral tragedy of Milliss. His migrant is no longer an exile, oppressed and marginalised, but, in Post-Modern fashion, a subjectivity taking pleasure in the endless deferral of arrival. But where does that leave the Aboriginal? Reconciliation has a particular meaning in contemporary Australia, as the name of a process that seeks to reconcile the long-denied fact of Aboriginal sovereignty with the consequences of its denial for two hundred years. It is a history that will not be subsumed in the poetics of migration.

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