Punishment and Colonial Society:

A History of Penal Change in Queensland,

1859-1930s

John McGuireBA (Hons) University of Queensland

A thesis submitted to theDepartment of History,University of Queensland,for the degree ofDoctor of Philosophy.

November 2001

Declaration of Originality

This work has never been submitted for a degree or diploma in any university. To the best ofmy knowledge and belief, this thesis contains no material previously published or written byanother person except where due reference is made in the thesis itself.

Copyright

This thesis, or any part thereof, must not be quoted, copied, or used in any way without thewritten pennission of the author.

Abstract

This thesis has two main goals: to present a history ofpenal change in Queensland from 1859

to the 1930s, and to contextualise this history in terms ofbroader issues in the history and

sociology ofpunishment. It is argued that scant attention has been paid to investigating the

existence of a distinctive colonial penality in the historiography of colonial penal systems, and

that it may be useful for future studies to be oriented in this direction. The present study

commences this project by seeking to determine the distinctive features ofpunishment in the

context ofcolonial Queensland.

The introduction argues for a synthetic approach to the theory ofpunishment in colonial

settler societies, and surveys the major theoretical traditions that have informed the research

undertaken in the preparation of the thesis. This is followed by a comprehensive review of the

historiography ofpunishment, and other criminal justice, studies in the Australian context.

The present study is distinguished within this historiography as one of the first to offer a

theoretically informed history of a colonial penal system following the era of transportation.

Chapter one is the first of two chronological chapters. It is concerned with the period from

1859 to 1890, in which the colonial state sought to cast aside its convict origins and

replicate the policies and practices of mid-Victorian penality. It was in this period that the

Queensland authorities established an enduring principle ofcolonial penality: any process of

replication would occur within certain limits and imperial policy would be implemented only

insofar as it was consistent with the aspirations of the colonial state. Much ofthis chapter is

concerned with the development of Queensland's penal system as it struggled to keep pace

with a rapidly expanding colony. In its effort to reform a penal apparatus that was

becoming increasingly unable to cope with the dramatic population growth and associated

increase in committals to prison, the colonial state continued to demonstrate its

commitment to classical penality. At a time when other jurisdictions were gradually

reorienting their systems ofpunishment towards rehabilitation and the individual treatment

of offenders, the Queensland authorities remained preoccupied with the fundamentals of

classical penology, such as how to establish uniformity in punishment regimes and to what

extent should punishment be deterrent or reformative.

Chapter two extends the chronological analysis beyond 1890 and into the 1930s. It begins

with an examination of the outcomes of the movement for penal reform in the late 1880s and

early 1890s. This is foIIowed by an examination of the changes that took place in the penal

realm around the tum of the century, both internationaIIy and in Australia, and how these

came to impact upon penal policy and practice in the Queensland context. It is argued that the

various ideological and structural changes in the penal realm in this period were essentiaIIy

the result of a process ofpragmatic borrowing from other jurisdictions, a process that was

continuaIIy subject to the desire of the colonial state to minimise expenditure on its penal

system. The result was a slow transition from classical penality to a new paradigm in which

the individual characteristics ofoffenders became the primary concern ofQueensland's penal

administrators.

Chapter three is the first of five chapters devoted to particular themes in the history of

punishment in Queensland. It is focussed on the actual experience of imprisonment in the

period under analysis, and is organised around a number ofcentral themes which provide an

insight into the material conditions and interpersonal relationships that characterised life in

Queensland's penal institutions. The chapter argues that prisoners were not simply 'docile

bodies' but were consequential actors in the daily life ofQueensland's penal institutions, and

that any comprehensive understanding ofpenal history must take into consideration the

largely hidden role ofthe inmates themselves in negotiating the structures and processes of

institutional life.

Chapter four focuses attention on the specific histories of the women and youths who were

subject to distinctive institutional treatment in Queensland's penal sphere. The chapter begins

with an examination of the development of the reformatory and industrial school movement in

Queensland, highlighting the specific institutional strategies devised to accommodate the

particular requirements ofoffending boys and girls. This is foIIowed by an analysis of the ,

specific strategies deployed in the process ofpunishing women offenders, and the alternative

experiences offemale inmates in the penal system. Queensland may well have foIIowed

international precedent by establishing discrete institutions for the punishment and

rehabilitation ofjuvenile and adult female offenders. Yet the implementation of this policy

of separation did little to distinguish it as a model jurisdiction in the institutional treatment

of female and young offenders. Administrative neglect was a recurring feature, and the

conditions of confinement continued to suffer as a result.

Chapter five examines the decline in use and gradual privatisation ofboth corporal and capital

punishment in Queensland. It is argued that the recent trend to embrace the techniques of

cultural history at the expense ofa political analysis is inadequate to explain the process of

transition from public to private physical punishments. In colonial Queensland, the modes of

physical punishment were modified to address the priorities ofpunishing two distinct

categories of offenders, both ofwhich were perceived as representing particular threats to

colonial social order. Firstly, colonial race relations motivated a change in the execution

procedure for non-European offenders convicted ofcapital offences during the mid-century

transition from public to private executions. Secondly, the use of corporal punishment was

modified in the case ofjuvenile delinquents convicted ofviolent offences. The chapter

concludes with an examination of the final stage in the movement toward the complete

privatisation ofphysical punishments.

Chapter six examines the distinctive penal practices employed for the punishment of

Aboriginal and Islander offenders. It is demonstrated that a desire on the part of the

authorities to identify an appropriate punishment for this class of offender resulted in the

development of some informal penal strategies. The era ofprotection brought with it the

establishment of a more rationalised and bureaucratic system for the control of the Aboriginal

population. As part of this process, confinement on island reserves was substituted for

imprisonment in the case ofmany convicted and time-expired Aborigines, establishing a

lasting association between the punishment ofAborigines and the persistent regulation oftheir

lives on reserves and missions.

Chapter seven examines the relationship between the fiscal concerns of the state and penal

change. It is argued that it was essentially economic considerations which were most

influential in determining the contours ofpenal change in Queensland. By focusing on the

history of 8t Helena Penal Establishment in particular, it becomes clear that in Queensland

economic factors should retain a high degree ofprimacy in any explanation ofpenal change.

The authorities were perpetually constrained by the tension between three competing goals of

imprisonment - economy, punishment and reform - yet it was the desire for economy, or a

self-supporting penal system, that remained the dominant force.

The thesis concludes with a brief discussion of the distinctive features ofpenality in colonial

Queensland.

Contents

Tables and Figures

Illustrations

Acknowledgments

Note on Terminology and References

Map of Queensland

Abbreviations

IntroductionUnderstanding Punishment in Colonial Settler Societies

PART A: THE HISTORICAL DEVELOPMENT OF QUEENSLAND'S PENALAPPARATUS

11

IV

V

VI

vii

1

Chapter 1Deterrence or Reformation? Establishing Punishment in the Classical Mode, 1859-1890 44

Chapter 2New Penology or Neo-Classical Penality? Reordering the Penal Realm, 1890-1930s 90

PART B: THEMES IN THE HISTORY OF PUNISHMENTIN QUEENSLAND

Chapter 3Docile or Defiant Bodies? The Experience of Imprisonment

Chapter 4The Lamkin and the Demi-mondaine: The Problems of Generation and Gender

Chapter 5Seclusion or Spectacle? Civilising Physical Punishment

Chapter 6From 'Dispersal' to Confinement: Imprisonment and Race

Chapter 7Economy, Punishment and Reform: The Political Economy ofPunishment

ConclusionPunishment and Colonialism Reconsidered

146

198

251

287

326

380

Appendices:1. Senior Penal Administrators in Queensland (1857-1926)2. Principal Gaols, Prisons, Penal Establishments and Reformatoryand Industrial Schools in Queensland 1847-19403. Number of Prisoners Released Under the Offenders ProbationAct between 1887 and September 18934. A comparison ofdietary scales in use in the Queensland penal system beforeand after the introduction of the 1892 rules and regulations relating to prisons

5. Systems ofPrisoner Classification in Queensland in 1868 and 18926. List ofOffenders Executed in Queensland, 1850-1913

Bibliography

392

397

399

401404406

408

Tables and Figures

Tables

Table 1.1: Periods of significant economic growth and recessionor depression in Queensland, 1859-1940

Table 5.1: Racial Origins ofOffenders Sentenced to Death andExecuted in Queensland, 1898-1908

Table 5.2: Racial Origins ofOffenders Executed in Queensland, 1850-1913

Table 5.3: Temporal Distribution ofExecutions in Queenslandat Ten Year Intervals, 1850-1913

Table 7.1: Value ofWork Performed at St Helena, 1879-1914

Table 7.2: Annual Expenditure Against Value of Work Performedat St Helena (available figures), 1913-1919

Table 7.3: Estimated Cost per Prisoner Taking into AccountValue ofLabour Performed by Inmate Population, 1904-1923

Table 7.4: Value ofWork Perfomled by Prisoners, 1901-1926

Figures

Figure 2.1: Admissions to Queensland Prisons, 1859-1939

Figure 2.2: Punishments Inflicted for Summary Convictions in QueenslandMagistrates Courts, 1890-1920

Figure 2.3: Admissions to Queensland Prisons and Asylums (rate per100,000 of the population), 1870-1920

Figure 4.1: Admissions to Reformatories (Boys), 1871-1920

Figure 4.2: Admissions to Reformatories (Girls), 1881-1920

Figure 4.3: Admissions to Queensland Prisons (Female), 1880-1939

21

264

266

266

368

370

372

373

107

107

129

208

209

248

11

Illustrations

Illustration 1.1: Brisbane Gaol: Ground Plan, 1868 (SCPD) 49

Illustration 1.2: Toowoomba Gaol: Ground Plan, 1868 (SCPD) 50

Illustration 1.3: Rockhampton Gaol: Ground Plan, 1868 (SCPD) 51

Illustration 1.4: Map Showing Island of St Helena, 1869 (SCStH) 61

Illustration 1.5: St Helena Penal Establishment: Plan of Prison Buildings, 1869 (SCStH) 62

Illustration 1.6: Rockhampton Gaol: Ground Plan, 1887 (BI) 66

Illustration 1.7: Rockhampton Gaol, pictured in 1911 (ARC-G, 1911) 67

Illustration 1.8: Townsville Gaol: Block Plan, 1887 (BI) 68

Illustration 1.9: Brisbane Gaol, South Brisbane: Block Plan, 1887 (BI) 72

Illustration 1.10: Brisbane Gaol, South Brisbane, pictured in 1911 (ARC-G, 1911-12) 73

Illustration 2.1: Stewart's Creek Penal Establishment: Front View, 1913 (ARC-G, 1914) 101

Illustration 2.2: Stewart's Creek Penal Establishment: View from No.3 Tower,1913 (ARC-G, 1914) 102

Illustration 2.3: Stewart's Creek Penal Establishment: Central Tower and A Wing,Kitchen, and Stores, Offices, etc, 1913 (ARC-G, 1914) 103

Illustration 2.4: Stewart's Creek Penal Establishment, 1913 (ARC-G, 1914) 104

Illustration 3.1: Machinery ofSurveillance: Brisbane Prison, No.2 Corridor, A Wing,1916 (ARC-G, 1916-17) 152

Illustration 3.2: Machinery of Surveillance: Stewart's Creek Penal Establishment,Central Tower, 1916 (ARC-G, 1916-17) 153

Illustration 3.3: St Helena Penal Establishment: Field Gang, 1911 (ARC-G, 1912) 159

Illustration 3.4: St Helena Penal Establishment: Tailor's Shop, 1915 (ARC-G, 1915-16) 160

Illustration 3.5: St Helena Penal Establishment: Workshops, 1913 (ARC-G, 1914) 161

Illustration 3.6: HM Prison, Brisbane: Mat-making Workshop, 1912 (ARC-G, 1913) 162

Illustration 3.7: HM Prison, Brisbane: Tailor's Shop, 1913 (ARC-G, 1914) 163

Illustration 3.8: HM Prison, Rockhampton: Mat Shop, 1913 (ARC-G, 1914) 164

Illustration 3.9: Brisbane Prison: Prison Hospital, 1916 (ARC-G, 1916-17) 170

iii

Illustration 4.1: HM Prison, Brisbane: Female Division, 1911 (ARC-G, 1911-12) 239

Illustration 4.2: HM Prison, Brisbane: Female Division, 1913 (ARC-G, 1914) 240

Illustration 4.3: HM Prison, Brisbane: Male & Female Divisions, 1911 (ARC-G, 1911-12) 241

Illustration 4.4: HM Prison, Brisbane: Wing in Female Division, 1915 (ARC-G, 1915-16) 244

Illustration 4.5: HM Prison, Brisbane: Tailoring and Gannent-making inFemale Division, 1912 (ARC-G, 1913) 245

Illustration 4.6: HM Prison, Brisbane: Chapel in Female Division, 1912(ARC-G, 1913) 246

Illustration 5.1: HM Prison, Brisbane: Gallows, n.d. (JOL) 267

Illustration 6.1: Removal Order, 24 July 1903 (QSA A/58927) 315

Illustration 6.2: Thursday Island Prison, 1916 (ARC-G, 1916-17) 321

Illustration 7.1: Salvation Anny Prison Gate Brigade (Boomerang, 19 April 1890) 349

Illustration 7.2: Proposed New Penitentiary, St Helena, 1890 (QSA COLlA636 [11677]) 355

Illustration 7.3: St Helena Penal Establishment: Wooden Cells, D Wing, 1915(ARC-G, 1915-16) 358

Illustration 7.4: "The Way of the Transgressor is -" (Evening Observer, 17 June 1911) 362

Illustration 7.5: Proposed new penitentiary, St Helena, 1914 (QSA PD85.4) 365

Illustration 7.6: Proposed new penitentiary, St Helena: Block Plan, 1914 (ARC-G, 1914) 366

IV

Acknowledgments

The research and writing of this thesis has benefited from the assistance ofa number oforganisations and individuals, and it is incumbent upon me to acknowledge the role played byeach.

First, I must extend my gratitude to the staffof the following institutions: the Queensland StateArchives; the University ofQueensland libraries; the John Oxley Library, State Library ofQueensland; the Mitchell Library, State Library ofNew South Wales; the Archives Office ofNew South Wales; and the Victorian Public Record Office. Margaret Reid, in particular,provided invaluable assistance with the records held at the Queensland State Archives,especially its substantial collections relating to the history ofQueensland's Aboriginal peoples.Thanks are also due to the recently retired Spencer Routh, whose unrivalled mastery oftheUniversity of Queensland's library collections and enthusiasm for Australian history in generalmade the research phase an easier task. Thanks also to Kevin Kearney and Mari McGuire forenabling unfettered access to these same collections.

Thanks also to long-time history colleague, Bryan Jamison, whose unwavering faith in theimportance ofhistory helped to ensure the PhD experience remained a learning one. Ourdiscussions on the detail ofQueensland history, the historical method in general, the state ofthe history profession in Australia and its apparent distancing from the real world (a processwhich we look forward to one day being reversed) assisted in maintaining some perspective onthe activity in which we have both been engaged.

I must also thank Professor Mark Finnane ofGriffith University, who went beyond the call ofduty to provide encouragement and assistance at various stages ofthe research and writing, andin the production ofarticles for publication.

Thanks are also due to my supervisor, Associate Professor Raymond Evans, for commentingon the initial drafts of the thesis.

Most importantly, I must express my greatest debt to my partner Rhonda and my childrenAidan and Elena, whose sacrifice and patience, as I persisted with what must have seemed attimes a fairly pointless exercise, made possible the completion of this thesis.

v

Note on Terminology and References

Following the Prisons Act of 1890 all gaols in the colony, excluding police gaols and lock-ups,became known as prisons. In an effort to maintain fluency in the thematic chapters, however,the terms "gaol" and "prison" will be used interchangeably. In some cases, the smaller prisonsreverted to their original designations as police gaols or lock-ups (Blackall gaol, for example).Generally speaking, those that graduated to the category ofprisons retained this designationuntil they were finally closed.

Following Federation in 1901 Queensland ceased to be an independent colony and became oneof six states comprising the Commonwealth ofAustralia..Consequently, I will use the term"colony" when referring to the period before 1901, and "state" for the latter period. However,the transformation that occurred in 1901 was largely an administrative one, with the social andeconomic circumstances in Queensland remaining essentially "coloniaJl', at least until the1920s.

The Prisons Department was never officially a government department during the colonialperiod. From 1863 to 1896 it came under the portfolio of the Colonial Secretary, and from1896-1935, the Home Secretary. With the passage ofnew legislation in 1890, the new officeofComptroller-General of Prisons was created. When I have used the term "Comptroller­General" I am referring to the Comptroller-General ofPrisons in Queensland. In other cases, Ihave specified the jurisdiction of the officer (for example, "Comptroller-General, New SouthWales").

For references to archival material (chiefly from the Colonial Secretary's and Home Officecorrespondence files) I have adopted the following convention: first, the details of thecorrespondents and the date ofthe letter; second, the acronym "QSA" which refers to thearchival repository, Queensland State Archives; third, the bundle reference number; andfinally, the letter number is contained within square parentheses. For example,

Sub-Inspector, Townsville, to Commissioner ofPolice, 21 November 1883, QSA COLlA375[6393].

VI

Map of Queensland

Bedourie

.Roma

• Springsure

• Emerald

Peak Downs

Blair Athol •• Clermont

• Charleville

~..Cape Tribularion ..

Port OouqlasTrinity Bay

Calms

EndeavO:;f Reef

COoktown

• Cunnamulla

• Barcaldine

• Hughenden

Longreach •

• Winton

• Cloncurry

Arafura Sea

Gulf ofCarpen(aria

Mount lsa.

IiIiiIIIjI

iIii!IiIIiI

I!IIiiiII Bnl .,L._._._._..!-.~!~._...,

iiiIIii!I Warw,ek.L /'-'-" St<Jl1tho

( . ..."._._...;'.'-'-'-'__'__' __'_'_'_._._._._._._._._//' _.,........ rPe~

v,..· .....

Source: Fitzgerald, R. From 1915 to the Early 1980s: A History of Queensland, University of QueenslandPress, St Lucia, 1984.

ARC-GARSARSStH

BI

COSCPACol SecC-GCwPDDFPASDPASFMLGBPPJOLJPMLNLANSWQGGQPDQPPQVPRCIADICSCPD

SCStH

SuptUnder Sec

Vll

Abbreviations

Annual Report of the Comptroller-General of PrisonsAnnual Report of the SheriffAnnual Report of the Superintendent of the Penal Establishment, StHelenaReport with minutes of evidence taken before the Board of Inquiryappointed to Inquire into the General Management of the Gaols, PenalEstablishments, and Lockups of the Colony ofQueensland, 1887Charity Organisation Society .ChiefProtector ofAboriginalsColonial SecretaryComptroller~General ofPrisonsParliamentary Debates, Commonwealth ofAustraliaDischarged Female Prisoners' Aid SocietyDischarged Prisoners' Aid SocietyFryer Memorial Library, University ofQueenslandGreat Britain, Parliamentary PapersJohn Oxley Library, State Library of QueenslandJustice of the PeaceMitchell Library, State Library ofNew South WalesNational Library of AustraliaNew South WalesQueensland Government GazetteQueensland Parliamentary DebatesQueensland Parliamentary PapersVotes and Proceedings ofthe Legislative AssemblyRoyal Commission into Aboriginal Deaths iii Custody (1991)Report ofthe Select Committee on Prison Discipline, together with theproceedings ofthe committee and the minutes ofevidence, 1868Report from the Select Committee on the Penal Establishment at StHelena, together with the proceedings of the committee and theminutes ofevidence, 1869SuperintendentUnder Secretary

Introduction: Understanding PUllishlllent in Colonial Settler Societies

Introduction

Understanding Punishment in Colonial Settler Societies

Maintaining the criminal justice system in Queensland, especially its correctional apparatus, is

today one of the most complex, costly and contentious responsibilities of government. An

alarming rate of increase in the prison population during the 1990s has ensured this state of

affairs, and has captivated a wide range ofpublic commentators, professional and voluntary

practitioners and policy-makers. I The increasingly burdensome costs and the frequent

contests for legitimacy in the penal realm have motivated the state to experiment with a range

ofpenal alternatives. There is now, for example, a much more diverse range ofsentencing

options available to the judiciary than existed a hundred years ago, options designed to

minimise the number ofoffenders receiving a custodial sentence. "Community Corrections"

offers a range of supervised non-custodial sentences or orders as an alternative to prison. For

Queensland's indigenous peoples, community courts are convened by indigenous Justices of

the Peace (although with greatly restricted jurisdiction in comparison with mainstream

magistrates courts). A number ofcommunity corrections centres now occupy prominent

positions on the carcerallandscape, allowingmany Aboriginal offenders to serve their

sentences in their communities under certain conditions. The Queensland government has

also investigated the possibility ofestablishing a new prison to be used exclusively for the

detention ofAboriginal inmates - a proposal favoured by many indigenous people

disillusioned with government attempts at addressing the current level ofover-representation

in the corrective system? With State Government endorsement, a rural "boot camp" for

young offenders has even been established on a trial basis near Warwick.3 There its managers

operationalise rehabilitative strategies that resemble those ofthe nineteenth century. These

are just a few examples of the increasingly diverse range ofpenal strategies deployed by the

state.

1 For details, see the recent Criminal Justice Commission report, Prisoner Numbers in Queensland: AnExamination ofPopulation Trends in Queensland's Correctional Institutions, Criminal Justice Commission,Brisbane, 2000.

2Sunday Mail, 3 March 1996. The plan appears to have been shelved for the time being. Correctional

institutions for indigenous offenders have, however, been established in other jurisdictions. The GriersonCommunity Correctional Centre, for example, is a minimum security pre-release centre for Native offenderslocated in Edmonton, Canada (see Kayleen M. Hazlehurst, "Empowennent, Prevention and Privatisation:Issues in Aboriginal Crime Prevention", in Pat O'Malley and Adam Sutton (eds), Crime Prevention inAustralia: Issues in Policy and Research, FederationPress, Sydney, 1997, pp. 111-3).

3 Courier Mail, 19 February 2000.

fntroduction: lJndcTslancling PunisJullent in Colonial Settler Societies 2

Yet this concern to experiment with innovative policy and practice has not sparked a great

interest in the penal traditions of the past, leaving current debates in the penal realm to occur

in a historical vacuum. The omission is surprising enough on its own. But when considered

in light of the recent decision in Queensland to embrace a new trend in international penology

and transfer much of the responsibility for managing its custodial institutions to private

enterprise, then it is even more SO.4 This is a potentially momentous shift in penal policy and

practice, one that represents the beginnings of a new paradigm in Queensland penality. But as

Queensland's penal administrators move headlong into this new era, they do so with little

knowledge of where they have been. Now is the ideal time to take stock, and develop an

understanding of the trajectories ofpenal change in this jurisdiction. The past should not

remain a distant memory, but should be incorporated into our analysis ofcontemporary policy

and practice. If the historical record is left unexamined, then we will never fully understand

the contemporary penological environment. An analysis of the historical evidence may shed

light on the reasons for the willingness of the Queensland government of recent times to

embrace the concept ofprivate prisons. It will at least provide an important context for

understanding the range ofcontemporary problems and issues confronting the penal realm.

The present study is an attempt to fill this historical void by furnishing a comprehensive

understanding of the development ofQueensland's penal apparatus up to the 1930s. This was

a period in which there was little scope for such profound contest in the penal realm, for there

was no question that it was the responsibility of the state to undertake the function of

punishing crime. In short, the focus of the thesis is on elucidating the trajectories ofpenal

change in the colony ofQueensland, and on contextualising this history ofpenal

transformation in terms ofbroader issues in the history and sociology ofpunishment. This

implies two main goals. First, to present a history ofpunishment in Queensland from

separation in 1859 to the 1930s - a period of significant change. Second, to assess the

implications of the present study for the now extensive body of theoretical work on the history

and sociology ofpunishment. This latter task will involve investigating whether there are any

particular features ofpunislnnent in a colonial settler context that may substantiate the

4 The most authoritative discussions of the Queensland situation are: Paul Moyle, Profiting FromPunishment: Private Prisons in Australia: Reform or Regression?, Pluto Press, Sydney, 2000; and PaulMoyle (ed), Private Prisons and Police: Recent Australian Trends, Pluto Press, Sydney, 1994.

Introduction: CTndcrstanding Punishment in Colonial Settler Societies 3

existence ofa distinctive 'colonial penality,.5

The time period and scope of the research complements the work of other scholars. It could

be argued that this thesis deals with the third phase of penal history in Queensland, the first

two being the convict period (1824-1842), followed by the period of free settlement that

preceded separation from New South Wales (1842-1859). The first phase has occupied a

special place in Queensland history and has attracted the attention ofa range of scholars (see

below for a discussion). The second phase, encompassing the two decades following the

cessation of transportation, has been extensively analysed by Libby Connors in her doctoral

thesis on policing, prosecution and punishment.6 By expanding this historiography to

incorporate the next eighty or so years, the present study will investigate the period in which

the vestiges ofconvictism were cast aside and a modern penal system was established in the

tradition ofBritish penality.

It is important to recognise at the outset that this thesis does not deal with a number of issues

closely related to punishment and confinement. First and foremost, this thesis does not

attempt to investigate the separate, though related, histories ofcrime, policing and the

criminal law in Queensland. The case for examining the specificities ofpunishment, and not

interpreting this distinctive phenomenon as simply an instrumental response to the problem of

crime, has been well established since Michel Foucault breathed new life into the argument

advanced by the Marxist scholars ofpunishment, Georg Rusche and Otto Kirchheimer:

The bond, transparent or not, that is supposed to exist between crime andpunishment prevents any insight into the independent significance of the historyofpenal systems. It must be broken. Punishment is neither a simple consequenceof crime, nor the reverse side of crime, nor a mere means which is determined bythe end to be achieved. Punishment must be understood as a social phenomenonfreed from both its juristic concept and social ends. We do not deny thatpunishment has its specific ends, but we do deny that it can be understood from

5 Following the example of David Garland, the teml "penality" is understood to refer to "the network oflaws,processes, discourses, representations and institutions which make up the penal realm", and is not limited tothe instrumental process of punishment (Punishment and Modern Society: A Study in Social Theory,Clarendon Press, Oxford, 1994, p. 17). The term has become popular since the publication ofMichelFoucault's Discipline and Punish: The Birth ofthe Prison, Penguin, Harmondsworth, 1991 (originallypublished in 1975, and fIrst translated in 1977).

6 Libby Connors, The 'Birth of the Prison' and the Death ofConvictism: The operation of the law in pre­separation Queensland 1839 to 1859, PhD thesis, Department of History, University of Queensland, 1990,chs 2-3. It should be noted that the Moreton Bay settlement retained elements of convictism into the 1850s.

fntroduction: Unckrstanding PunislulJent in Colonial Settler Societies 4

its ends alone.7

Furthennore, the present study is not a comprehensive history ofall fonns of incarceration. In

particular, short-tenn confinement in colonial Queensland's numerous lock-ups for minor

offences will not be examined in any detail. 8 Nor will I devote detailed attention to the

largely hidden history ofpunitive practices used by the authorities on the many Aboriginal

reserves and missions of the colony as these have been well treated by scholars ofrace

relations (see chapter six). Other institutions of confinement, such as lunatic and benevolent

asylums, quarantine stations or leper lazarets, do not feature in this study.

The research for this thesis has been hampered by a lack ofreminiscences and contemporary

writings on the operation of the penal system. There is little resembling the mass ofarticles

that appeared in Victorian Britain's periodical press to assist the historian to contextualise the

changes that took place in colonial Queensland.9 The dearth of secondary work on criminal

justice history in this period has compounded this problem. The one advantage in this

lamentable situation is that the historian is not easily misled by what contemporary writers

perceived as the objectives and actualities ofpunishment in their time. There is only one

option, and that is to reconstruct the specificities ofpunishment in the colonial context using a

range ofprimary evidence - to try and detennine what actually happened - and not be

deceived by the perceived intentions of the various penological programmes that characterised

this period.

A wide range ofprimary source material has been consulted in the preparation of this thesis.

The bulk ofofficial documentation has come from the collections of the Queensland State

Archives. This mainly includes the correspondence ofthe Colonial Secretary's Office and

Prisons Department, but also encompasses the records ofother government agencies, such as

the police, justice and Aboriginal departments. Interestingly, for the period up to 1896, it is

7 Georg Rusche and Otto Kirchheimer, Punishment and Social Structure, Russell & Russell, New York,1968, p. 5. The work was originally published in 1939. For Foucault's comments, see, Discipline andPunish, p. 24.

8 For good work in this area, see Mark Finnane and Stephen Garton, "The Work ofPolicing in Queensland,1880-1914", Pts 1 and 2, Labour History, nos 62-3, 1992, pp. 52-70 and 43-64. Certainly, there is more tobe discovered in the records of the police department.

9 An indication of the volume ofarticles dealing with crime and punishment in Victorian Britain is to befound in E.M. Palmegiano, Crime in Victorian Britain: An Annotated Bibliography from Nineteenth-CenturyBritish Magazines, Greenwood Press, Westport, 1993.

Introduction: Understanding Punishment in Colonial Settler Societies 5

the colonial secretary's correspondence, and not that of the prisons department, which

contains the vast majority of informative material pertaining to the penal system and

punishment generally in the colony. Other major sources include the various parliamentary

papers and records ofdebates, as well as a number of relevant official inquiries into penal and

criminal justice-related affairs. The annual reports of the criminal justice agencies and their

annual statistics have also been examined. Non-government sources have mainly included

newspapers, journals and contemporary reminiscences. The research has also been informed

by an extensive international historiography ofworks investigating the development ofpenal

policies and practices during the nineteenth and early twentieth centuries. It has also been

guided by a range of theoretical perspectives in the history and sociology ofpunishment.

Writing Punishment History in Colonial Societies: Theoretical

Considerations and Methodological Implications

It has now become somewhat ofa customary practice to begin a study ofa penal system with

an account of the development of theoretical currents in the history and sociology of

punishment. These introductory comments usually take the form ofa chronological

discussion, beginning with the dominance of the humanitarian reform school, then moving on

to Durkheim, Weber, classical Marxism, neo-Marxism, Foucault and a variety ofother

revisionist scholars, the empiricist critics of revisionism, feminism, the rediscovery ofElias,

and beyond to the proliferation of the ideas ofnumerous other scholars. There are now many

works of introduction or critique which provide both broad overviews and detailed synopses

of these major theoretical traditions, and there seems little point in traversing similar ground

in the present study, especially so, since it will, in large part, simply involve summarising the

work ofothers. to Nevertheless, it is worthwhile devoting some space to delineatingthe broad

contours of this ambitious project to explain the historical development ofpenal policy and

practice. The majority of this discussion will, however, concentrate on some key themes

identified in the work of those authors whose observations have been ofparticular relevance

to the present study ofpunishment in colonial Queensland.

In his study ofcrime and punishment in Victorian Britain, Martin Weiner identified two

alternative interpretative perspectives - "pragmatism" and "revisionism" - into which we may

10 The best introductions are David Garland, Punishment and Modern Society; and Adrian Howe, Punishand Critique: Towards a Feminist Analysis ofPenality, Routledge, London, 1994.

fntroduction:Undcrstanding Punislullent in Colonial Settlcr Societies 6

divide most recent histories ofpenal policy and practice. I I In his view, adherents to the

former perspective eschew attempts to determine an underlying structure in the development

ofcriminal justice policy, arguing that policy development occurs in response to specific

problems or occurrences and that it is, as a consequence, complex, variable and reactive. 12

Where these historians miss the mark is in their inability to conceive ofcrime and punishment

as socially constructed phenomena, dependent upon the varied interpretations, held by

individuals and classes at particular moments in history, ofwhat constitutes a criminal act and

what is an appropriate punishment. Their overall arguments have been damaged by the more

widely-acclaimed and influential revisionist school who collectively focus on how the

underlying structures ofpower in society shape penal policy and practice. 13 This latter

tradition has emphasised the importance ofplacing the prison in its social context, and

scrutinising the ideological and political basis upon which strategies ofpunishment are

formed and deployed. They too, however, have been sharply criticised in recent years, not

least for their over-reliance on the notoriously slippery concept of 'social control', and their

emphasis on the coercive at the expense ofthe consensual. 14 Their search for unanimity and

II He also refers to two other perspectives in his historiography ofcriminal justice history. First, thetraditional Whig approach, in which change in criminal justice policy and practice is understood as a rationalprocess ofmodernisation and reform. Second, "internalism", in which the criminal law is interpreted as a"highly autonomous field of thought and action that develops with its own internal logic" (Martin J. Weiner,Reconstructing the Criminal: Culture, Law, and Policy in England, 1830-1914, Cambridge University Press,Cambridge, 1990, pp. 1-10).

12 See, for example, Margaret DeLacy, Prison Reform in Lancashire, 1700-1850: A Study in LocalAdministration, Stanford University Press, Stanford, 1986; and her earlier article, "Grinding Men Good?Lancashire's Prisons at Mid-century", in Victor Bailey (ed), Policing and Punishment in Nineteenth CenturyBritain, Croom Helm, London, 1981, pp. 182-216; Lucia Zedner, Women, Crime and Custody in VictorianEngland, Clarendon Press, Oxford, 1994; Sean McConville, A History ofEnglish Prison Administration,Volume 1: 1750-1877, Routledge, London, 1981; and his second work, English Local Prisons 1860-1900:Next Only to Death, Routledge, London, 1995.

13 The most famous works in this tradition are Foucault, Discipline and Punish; Michael Ignatieff, A JustMeasure ofPain: The Penitentimy in the Industrial Revolution, 1750-1850, Penguin, Harrnondsworth, 1989;David Garland, Punishment and Welfare: A History ofPenal Strategies, Gower, Aldershot, 1985; PatriciaO'Brien, The Promise ofPunishment, Princeton University Press, Princeton, 1982; David J. Rothman, TheDiscovery ofthe Asylum: Social Order and Disorder in the New Republic, Little, Brown and Co, Boston,1971; and Nicole Hahn Rafter, Partial Justice: Women, Prisons, and Social Control, Transaction Publishers,New Brunswick, 1990.

14 Michael Ignatieff's review article, in which he is especially critical of his own work, remains a usefuloverview of the initial reaction to the revisionist school ("State, Civil Society and Total Institutions: ACritique of Recent Social Histories of Punishment", in Stanley Cohen and Andrew Scull (eds), Social Controland the State: Historical and Comparative Essays, Basil Blackwell, Oxford, 1985, pp. 75-105). See alsoDavid Rothman, "Social Control: The Uses and Abuses of the Concept in the History oflncarceration", inCohen and Scull (eds), Social Control and the State, pp. 106-17. For a recent discussion, see Howe, Punishand Critique, ch. 2.

Introduction:UndcTstanding Punislllnent in Colonial Settler Societies 7

consistency in penal practice has blinded them to the unintended consequences ofpenal policy.

and the inconsistencies ofpenal practice. Lucia Zedner, for example, has criticised Michael

Ignatieff for assuming the penal ideal embodied in the model prison at Pentonville in the

l840s subsequently came to influence the entire Victorian penal system. 15 Her careful

scrutiny of inmate experiences in the English local prisons, and in many convict

establishments, has shown that penal practice in the Victorian era was rarely as consistent as

Ignatieff appears to have assumed.

Weiner attempts to re-frame these and other traditions in a tentative first step towards the

production ofa truly cultural history DfVictorian criminal policy - a goal that is consistent

with the kind of history ofpunishment that David Garland has promoted in recent years,

history that uncovers and scrutinises "the structures of social action and the webs ofcultural

meaning in which punishment actually operates", the history that we will no doubt begin to

see produced in increasing volume in coming decades. 16 Yet if the type of study he proposes

is not yet possible for Britain, as he laments in his introduction, then it is even less so for

colonial and post-colonial Queensland. Our knowledge ofcriminal justice policy and practice

in this particular jurisdiction, and the cultural beliefs and practices through which it was

refracted, is at present too thin to embark upon such a project. The goal of the present study is

more modest, its interpretative framework sitting somewhere between pragmatism and

revisionism. I have tried to furnish an honest and accurate account (although by no means the

only account) that balances the attention to detail ofthe pragmatists with the highly

schematised social discipline perspectives of the revisionists. 17 And in utilising the ideas of

the revisionists, I have been careful not to view the various competing theoretical traditions as

mutually exclusive. There are certainly some fundamental differences between, say, Foucault

and Elias, yet in both there are concepts developed or methods used that should not be

discarded simply because one total explanation is favoured over another. There is a strong

case to be made for theoretical eclecticism when approaching the study ofpunishment in

15Zedner, Women, Crime and Custody, pp. 96-7.

16Garland, Punishment and Modern Society, p. 10; and esp. chs 9-11. See also John Pratt, "Civilization and

Punishment", Australian and New Zealand Journal ofCriminology, vol. 33, no. 2, 2000, pp. 183-201.

17 This would seem the only way forward ifwe are to achieve what Ignatieffproposed in the early 1980s:"The real challenge is to fmd a model ofhistorical explanation which accounts for institutional changewithout imputing conspiratorial rationality to a ruling class, without reducing institutional development to aformless ad hoc adjustment to contingent crisis, and without assuming a hyper-idealist, all-triumphanthumanitarian crusade" (Ignatieff, "State, Civil Society and Total Institutions", p. 77).

Introduction: Understanding Punislunent in Colonial Settler Societies 8

specific contexts, just as there is an equally strong case for not routinely applying the

Eurocentric theories ofpunishment to all jurisdictions, without revision or qualification.

The present study is concerned with penal change in the context of colonial Queensland. The

source of inspiration for the particular approach to this subject has been drawn from the works

of those scholars ofpunishment who have explicitly sought to explain the transformation of

penal forms in western European and north American contexts from the birth of the prison

through to the mid-twentieth century. This collection ofauthors may be loosely organised

around six themes, each representing a more or less distinctive approach to the explanation of

penal change: the genesis and intensification ofdisciplinary power, the imposition ofsocial

control, the inexorable advance offormal rationality and bureaucracy, the gendered nature of

penality, the impact ofcultural forces, and the influence ofpolitical economy. There are, of

course, other distinctive approaches for explaining the history and sociology ofpunishment,

and others still that are unashamedly synthetic, thereby defying tidy categorisation under a

single theme. But those above are the themes that have thus far captivated the majority of

influential and innovative scholars in the field, and have therefore had the most influence on

the present study. Together, they comprise the toolkit which has been used to construct this

story ofpunishment in Queensland.

The explanatory perspective with greatest currency is without doubt the one elaborated in

Michel Foucault's study of the rise of imprisonment in western Europe, Discipline and

Punish. In short, Foucault's argument is that in Europe between 1750 and 1820 the public

infliction ofpunishment on the body ofthe offender was dramatically replaced by a new

disciplinary technology ofpower embodied in the form of the prison. Consequently, the

power relationship between the ruling elite and the governed came to be demonstrated and

reproduced through these new institutions of incarceration with their 'panoptic' concentration

upon the 'soul' of the offender. For Foucault, the shift away from brutal physical punishments

did not represent the advent ofa more humane approach to the treatment ofoffenders. It

signalled the transition to a new form ofpenality - the "carceral". The goal was now "not to

punish less but to punish better; to punish with an attenuated severity perhaps, but in order to

punish with more universality and necessity; to insert the power to punish more deeply into

the social body".18 The prison became the site ofa range ofnew discursive and non­

discursive dividing practices specifically directed at organising and managing a problem

18 Foucault, Discipline and Punish, p. 82.

hltroduction: Understanding Punishment in Colonial Settler Societies 9

population.

Foucault's thesis has attracted a number of critics from within the historical profession who,

while acknowledging the tremendous insights ofhis iconoclastic study, have challenged his

periodisation and tendency to over-dramatise the details ofthe transformation to the

widespread use of imprisonment. 19 His cavalier treatment ofhistorical evidence has offended

the sensibilities ofmany historians, and provided some solid ground for questioning his

conclusions. Richard Evans, for example, has argued that:

Because he was not a historian, but a philosopher, who was uninterested inproblems of agency and causation, and carried out his archival researches in acasual and unsystematic way, Foucault was unaware of, or unwilling torecognise, the contingency of historical outcomes. In the real past world, thedisciplinary discourse ... was multifaceted, fragmented, disputed, contested,mediated by social relations, and never more than partially realized.20

There are, however, other historians who see value in Foucault's analytical framework, and in

his unique observations on the nature and operation ofpower.21 For anyone interested in the

operation ofpenality in an historical or contemporary context, it is difficult to ignore the

arguments in Discipline and Punish.

Foucault argues that power is not just repressive, but is also positive and productive in its

effects. Disciplinary power is characterised by its focus on individuals who become

increasingly subject to its impersonal forms of surveillance until they intemalise its effects and

become "docile bodies", automatically regulating their own behaviour as if constantly under

an authoritarian gaze. The prison and other like institutions, such as hospitals, asylums,

19 See, for example, 1.M. Beattie, Crime and the Courts in England 1660-1800, Clarendon Press, Oxford,1986; Garland, Punishment and Welfare; Garland, Punishment and Modern Society, pp. 157-62; Ignatieff,"State, Civil Society and Total Institutions", pp. 85-96; John H. Langbein, Torture and the Law ofProofEurope and England in the Ancien Regime, University of Chicago Press, Chicago, 1977, esp. pp. 61-9;Robert A. Nye, "Crime in Modern Societies: Some Research Strategies for Historians", Journal ofSocialHistory, vol. 11, no. 4, 1978, p. 501; John Pratt, "'This is Not a Prison': Foucault, the Panopticon, andPentonville", Social and Legal Studies, vol. 2, 1993, pp. 373-95; and Pieter Spierenburg, The Spectacle ofSuffering: Executions and the Evolution ofRepression: From a Preindustrial Metropolis to the EuropeanExperience, Cambridge University Press, Cambridge, 1984.

20 Richard 1. Evans, Rituals ofRetribution: Capital Punishment in Germany 1600-1987, OxfordUniversity Press, Oxford, 1996, p. 890,

21 See, for example, Randall McGowen, "Power and Humanity, or Foucault among the Historians", inColin Jones and Roy POlier (eds), Reassessing Foucault: Power, Medicine and the Body, Routledge,London, 1994,pp.91-110.

Introduction: lJndC'rstanding Punislullcnt in Colonial Settler Societies 10

barracks, monasteries and schools, operationalise specific techniques - routinisation,

corrective training and behavioural assessment - which together assist in a process of

normalisation. In Discipline and Punish, Foucault illustrates the many points where power is

exercised in the carceral environment, highlighting how previous understandings ofpower in

this context have lacked precision or subtlety. But his conception ofdisciplinary power has a

significance beyond the walls of the prison when he suggests that its substance and techniques

radiate outwards to other institutions and beyond, to gradually become embedded in the fabric

of society. Emerging with the carceral society was what Foucault described as "power­

knowledge", where a diverse andinterrelated range ofprofessional discourses and everyday

practices are deployed in the management ofproblem populations. Foucault is not simply

presenting a history ofan institution, he is also presenting the reader with a genealogy of the

particular power relations associated with modernity.

This new conception ofpower, however, is not without its faults. Foucault's technique of

scrutinising seemingly irrational methods or aspects ofpunishment until he 'discovers' how

they constitute meaningful expressions ofpower leads to an overly-functional interpretation of

punishment. It is as ifeverything involved in the process ofpunishment is part ofa unified

and deliberate strategy. There is no suggestion that penal techniques can be anything other

than positive effects ofdisciplinary power. He is also silent on who it is who actually

exercises power, despite conceiving of it as part of a strategy ofcontrol or domination.22 Yet

it is on his unique conception ofpower that Foucault's phenomenology of imprisonment turns,

and it is this phenomenology that is possibly the most valuable contribution ofDiscipline and

Punish, providing us with a new perspective on the "physical materiality of the prison".23 His

depiction ofthe operation ofthe technologies ofpower upon the individual inmate has added

a new dimension to explanations ofthe functions of imprisonment and provided new insights

into the effects of institutionalisation (even if the Panopticon metaphor tends to overstate the

relationship between the prisoner and the penal system, especially, as we shall see, in

jurisdictions like colonial Queensland). But this phenomenology, preoccupied as it is with the

disciplinary aspect of imprisonment, may yet benefit from some revision. Foucault appears

unwilling to entertain the idea that individuals are capable of resistance and that the

disciplinary environment is in many respects negotiated by those who, whether compelled or

22 Derek Layder, Understanding Social Theory, Sage Publications, London, 1994, pp. 106-10.

23 Garland, Punishment and Modern Society, p. 144 (see also, p. 133).

Introduction: Understanding Punishment in Colonial Settler Societies 11

by choice, participate in its operation.24

Chapter three below seeks to qualifY Foucault's

interpretation ofprison life by departing from the methodology ofDiscipline and Punish and

closely scrutinising the day-to-day experiences of the inmates confined in Queensland's

institutions ofconfinement. The evidence from Queensland would suggest that Foucault's

phenomenology could be improved by inserting the variable ofhuman agency into his

disciplinary equation.

Although clearly in a category of its own, Foucault's work is often seen as one key text in the

body ofscholarship that began to interpret the prison as an emblematic feature of the

expanding social control functions of the state.25

As already discussed, works in this tradition

have examined the role ofpunishment, especially the increased use of imprisonment, in the

imposition and maintenance ofpolitical authority during the process of state formation under

early capitalism. Apart from Discipline and Punish, the best known of these works is

Ignatieffs, A Just Measure ofPain, and the first ofDavid Rothman's studies, The Discovery of

the Asylum?6 Their importance lies in their emphasis on how the ideological, political and

economic struggles of society shape modes ofpunishment to reflect the aspirations of the

ruling elite.27 But they have not been immune to criticism, even self-criticism. In Ignatieffs

opinion, the revisionist arguments contained three basic misconceptions: "that the state enjoys

a monopoly over punitive regulation ofbehaviour in society, that its moral authority and

practical power are the binding sources of social order, and that all social relations can be

24 Foucault was certainly willing to concede that disciplinary power did not always succeed in producingdocile and compliant subjects, and that the tenn "disciplinary" was really a description of the deployment ofcertain techniques (Mark Cousins and Athar Hussain, Michel Foucault, Macmillan, London, 1984, p. 188).But he failed to incorporate in Discipline and Punish any discussion of the effect ofresistance on the natureofdisciplinary power.

25 For useful discussions from supporters ofthe social control perspective, see Stanley Cohen, Visions ofSocial Control: Crime, Punishment and Classification, Polity Press, Cambridge, 1985; and Thomas G.Blomberg and Stanley Cohen, "Punishment and Social Control", in Thomas G. Blomberg and Stanley Cohen(eds), Punishment and Social Control: Essays in Honor ofSheldon L. Messenger, Aldine De Gruyter, NewYork, 1995, p. 7. For a more balanced review, see David Philips, "'A Just Measure of Crime, Authority,Hunters and Blue Locusts': The 'Revisionist' Social History ofCrime and the Law in Britain, 1780-1850", inStanley Cohen and Andrew Scull (eds), Social Control and the State: Historical and Comparative Essays,Basil Blackwell, Oxford, 1985, esp. pp. 58-9.

26 But see also the influential article by Douglas Hay, "Property, Authority and the Criminal Law", inDouglas Hay, et al. (eds), Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, A. Lane,London, 1975, pp. 17-63, which convincingly articulates the ideological purpose to the complex workings ofEngland's criminal justice system in the late-eighteenth century. Hay and the other authors ofAlbion's FatalTree offer uniquely subtle accounts of the way in which ruling class authority preserves its hegemony.

27 Garland, Punishment and Modern Society, p. 130.

fntroduction:Undcrstanding Punishnlent in Colonial Settler Societies 12

described in the language ofsubordination".28 These may be applied more generally to other

works ofcriminal justice history which operationalise a social control model. But this is not

to deny their utility as reminders to the historian ofpunishment that penal policies and

practices are, in large part, defined by the ruling elites in society, and are then subject to

constant negotiation as they are deployed in the complex process ofpunishing. What we now

consider as flaws of the social control perspective, are perhaps less relevant in the special case

of the punishment of indigenous peoples in colonial societies. As chapters six and seven

demonstrate, there is still value in conceiving ofpunishment as an instrumental component of

an increasingly rationalised strategy ofdomination and control levelled against subordinate

groups in society.

The concept of rationality leads us to the next ofour theoretical perspectives on punishment,

one that owes its greatest debt to the work ofMax Weber. To date, there has been little

written on the relevance ofWeberian thought to the history and sociology ofpunishment,29

Yet there is scarcely a single text that fails to incorporate some of the concepts or ideas

initially developed in his work, and some, such as Foucault, have even extended the use and

meaning ofparticular Weberian concepts like rationality. As Garland has demonstrated, most

studies of imprisonment in the modem age refer to themes such as the process of

centralisation that occurred from the latter halfofthe nineteenth century, the drive for

uniformity in punishment regimes, the dramatic expansion of the penal complex in the

nineteenth and late twentieth centuries, the professionalisation of the staff involved in the

process ofpunishment and the increased involvement ofnon-penal professionals and

agencies, and the passionless imposition ofpunishment according to administrative routine.3D

Our understanding of each of these themes owes a great debt to Weber's analysis of the

processes of rationalisation, professionalisation and bureaucratisation up to 1920.31 Itis

28Ignatieff, "State, Civil Society and Total Institutions", p. 77.

29 The best account is in Garland, Punishment and Modern Society, ch. 8. See also Norbert Finzsch, "Elias,Foucault, Oestreich: On a Historical Theory ofConfmement", in Norbert Finzsch and Robert Jutte (eds),Institutions ofConfinement: Hospitals, Asylums and Prisons in Western Europe and North America, I500­I950, Cambridge University Press, Cambridge, 1996, pp. 3-16, for some points of convergence betweenWeber and other important continental thinkers whose ideas have influenced work on penal-welfareinstitutions.

30 Garland, Punishment and Modern Society, pp. 180-9.

31 See, in particular, Weber's study ofpower and bureaucracy in Economy and Society (excerpts in KennethThompson and Jeremy Tunstall (eds), Sociological Perspectives: Selected Readings, Penguin,Harmondsworth, 1973, pp. 67-79).

Introduction: Understanding Punislul1ent in Colonial Settler Societies 13

important, however, that the historian does not apply the products of Weberian thought in a

deterministic fashion, thereby making the evidence fit a model of an ever-widening net of

bureaucratic rationalism, subsuming all social forms within its reach.

Foucault, for example, has framed his study in terms ofthe pernicious impact of

rationalisation upon the development ofpunishment itself, and its pervasive effect upon the

individual inmate. But others have been more sensitive to the limitations of the process of

rationalisation, mindful of the role that emotion still plays in dictating forms ofpunishment,

and aware that the process ofbureaucratisation experiences occasional hiccups, with penal

forms often subject to the vagaries of inefficient (or simply incipient) bureaucracy, or to the

moral and political influence ofexternal critics ofpunishment regimes.32 On this point,

Ignatieffhas cautioned the historian to make room for the "idea that modernity is the site of a

recurring battle between rationalizing intention and institutions, interests and communities

which resist, often with persistent success".33 David Rothman, for example, in his history of

penal-welfare institutions in Progressive America was not tempted to frame his account of

penal change in terms of the unyielding influence ofrationality. In fact, he was critical of

Foucault's tendency to do so in Discipline and Punish:

In Foucault's world, the fit between a capitalist society and the prison is tight, asthough rationality dominated throughout. In fact, the fit was much looser andprocedure less systematic. And this gap is important both for getting the storystraight, for knowing what did or did not happen, and, again, for opening theprospects for innovation, for breaking out of constructs that are confining, evenself-confirming.34

For Rothman, penal change did not occur as a uniform process of reform, but was

characterised by a cyclical pattern of "conscience" followed by "convenience". In other

words, periods of innovation and reform in the penal realm were inevitably followed by

periods ofneglect and stagnation until a new band of dedicated commentators and

practitioners inspired a new period of reforming effort. Rothman is one historian who is

sensitive to the many gaps in bureaucratic efficiency and control, and aware ofthe importance

32 Weber himself was relatively silent on the possibility of dysfunctional or inefficient bureaucracy (see thediscussion in David Lee and Howard Newby, The Problem ofSociology, Hutchinson, London, 1986, pp.196-200).

33 Ignatieff, "State, Civil Society and Total Institutions", p. 83.

34 David J. Rothman, Conscience and Convenience: The Asylum and its Alternatives in Progressive America,Little, Brown and Co, Boston, 1980, p. 11.

Introduction:Unckrstanding Punislul1ent in Colonial Settler Societies 14

ofconsidering in detail the unintended consequences in bureaucratic transfonnation when

explaining the history of imprisonment.

For the present study, the most important methodological implication of Weber's insights is

that changes in penal fonns correspond in large part to advances in technical and

administrative expertise and consequent changes in the routine of governance. Any

explanation ofpenal change will not be complete until it pays due regard to the impact of

bureaucratic transfonnation (or stagnation), especially the desire to establish a rational, cost­

efficient approach to the roles and responsibilities of the state, and the success or otherwise of

attempts to do so. It is suggested in the pages that follow that administrative pragmatism and

neglect played a fundamental role in the development of Queensland's institutions of

punishment.

From the 1980s, the field ofpunishment history has been strengthened by the publication of a

small number ofworks which have focussed on the gendered nature ofpenality.35 This body

of scholarship has directed attention to the specificities ofwomen's imprisonment, and the

experience ofwomen in the criminal justice system generally, demonstrating that penal

responses to female offending are shaped in large part by social nonns governing what is

appropriate behaviour for women.36

Together they have established a case for reviewing the

explanations ofpenal change presented by the revisionists of the late-1970s, preoccupied as

they were with the punishment ofmen. If it can be shown that the experience ofpunishment

for women has varied greatly from that ofmen, then there is good reason to question the

validity of these accounts. Yet, as Adrian Howe has argued, the field remains fragmented,

still requiring the concentrated intervention ofmore feminist scholarship:

Not until the still-disparate studies of women's imprisonment have beenconsolidated into a new theoretically-grounded paradigm will they be able toprovide a fully 'social' history ofpunishment, one capable of challenging therestrictive theoretical boundaries of masculinist studies untouched by aconsideration of gender relations.37

35 See, in particular, Russell P. Dobash, R. Emerson Dobash, and Sue Gutteridge, The Imprisonment ofWomen, Basil Blackwell, Oxford, 1986; Estelle B. Freedman, Their Sisters' Keepers: Women's PrisonReform in America, 1830-1930, University of Michigan Press, Ann Arbor, 1981; Rafter, Partial Justice;O'Brien, The Promise ofPunishment; and Zedner, Women, Crime and Custody.

36 For an informative discussion of the historiography, see Howe, Punish and Critique, ch. 4.

37 Howe, Punish and Critique, p. 154.

Introduction: Understanding PunishJnent in Colonial Settler Societies 15

Chapter four of the present study discusses some of the specificities ofwomen's imprisonment

in the context ofcolonial Queensland.

Also in its infancy, a trend towards culturalist explanations ofpenal change has begun to

encroach on the field ofpunishment studies.38 The main source of inspiration for this new

trend has come from the revival of the work of the sociologist, Norbert Elias, but it also owes

much to a renewed willingness to borrow concepts and ideas from other disciplines, such as

anthropology and cultural studies. Elias's attention to the influence ofpsychological

sensibilities on the process ofhistorical change has inspired scholars in a variety of fields,

including the study ofpunishment.39 While his work has provoked a number of criticisms,40

the concept of the 'civilizing process' is a useful explanatory tool when applied to the history

ofpunishment, allowing the historian to fill many gaps in existing knowledge. In explaining

the course ofEuropean history from the Middle Ages to the early-twentieth century, Elias

emphasised the interaction between processes of state formation, on the one hand, and

psychological and behavioural transformations in the individual, on the other. As the state

gradually began to monopolise the use ofphysical force and its administrative apparatus

became increasingly centralised, there was an accompanying transformation in the individual

towards self-restraint or self-discipline - in short, a civilizing process was apparent ('civilizing'

being understood here not to refer to a society being civilised in an absolute sense but rather

the process in which a society gradually becomes more civilised over time4t).

Although Elias had little to say about the history ofpunishment, the relevance ofhis work for

those interested in penality is self-evident. His emphasis on the role of sensibility and

38 For example, see Weiner, Reconstructing the Criminal.

39 Elias's theoretical contribution is best outlined in The Civilizing Process, vol. 1: The History ofManners(1939), Blackwell, Oxford, 1983; and vol. 2: State Formation and Civilization (1939), Blackwell, Oxford,1982. See also Norbert Elias, What is Sociology?, Hutchinson, London, 1978. For discussions of Elias'scontribution, see, in particular, Stephen Mennell, Norbert Elias: An Introduction, Blackwell, Oxford, 1992;Garland, Punishment and Modern Society, esp. cbs 9 and 10; and Pratt, "Civilization and Punishment".

40 See, for example: Robert van Krieken, "Violence, Self-discipline and Modernity: Beyond the 'CivilizingProcess"', Sociological Review, vol. 37, no. 2, 1989, pp. 193-218; Derek Layder, "Social Reality asFiguration: A Critique of Elias's Conception of Sociological Analysis", Sociology, vol. 20, no. 3, 1986, pp.367-86; R.I. Robinson, "'The Civilizing Process": Some Remarks on Elias's Social History", Sociology, vol.21, no. 1, 1987, pp. 1-17. Mennell has discussed Elias's critics in Norbert Elias, pp. 227-50.

41 See Eric Dunning and Kenneth Sheard, Barbarians, Gentlemen and Players: A Sociological Study oftheDevelopment ofRugby Football, Martin Robertson, Oxford, 1979, p. ix.

Introduction: Understanding Punislul1cnt in Colonial Settler Societies 16

emotion in historical change and portrayal ofprocesses of privatisation, increased inhibition

and gradual pacification in society has obvious implications for the study ofpunishment. It is

not surprising that one of his best known disciples has applied the Eliasian model to the

history ofcapital punishment in Europe, arguing (contra Foucault) that the shift from public

spectacle to confinement was well underway in the seventeenth century and was motivated by

more than just the exercise ofpower.42 The present study explores the utility of the concept of

the 'civilizing process' in explaining the history ofphysical punishments in the context of

colonial Queensland.

It is perhaps worthwhile mentioning at this point the work ofDavid Garland, in particular

Punishment and Welfare and the latter chapters ofhis second work, Punishment and Modern

Society. Garland's work is especially interesting for the way it has evolved in the course ofa

decade or so. His initial study was concerned with the emergence ofpenal-welfare

institutions in Britain in the late-nineteenth and early-twentieth centuries. The point of this

investigation was to understand "how penal policies are forged by particular social

movements within the constraints oflarger social structures".43 His conclusions are

particularly important for the present study, and will be discussed in detail in the chapters that

follow. But beyond this empirical value, it is also interesting to note how Garland has shifted

from an interpretative framework derived from a blend ofneo-Marxism and Foucauldianism

in Punishment and Welfare to a perspective elaborated in his second study, Punishment and

Modern Society, which interprets punishment as "a complex cultural artefact, encoding the

signs and symbols of the wider culture in its own practices".44 What is needed now, in

Garland's view, is for historians and sociologists to move beyond the "power perspective" to

produce a more multi-dimensional account ofpenality, one which incorporates "an analytical

account of the cultural forces which influence punishment, and, in particular, an account of

the patterns imposed upon punishment by the character ofcontemporary sensibilities".45 He

42 Spierenburg, Spectacle ofSuffering. See also the work ofHerman Franke, The Emancipation ofPrisoners: A Socio-Historical Analysis ofthe Dutch Prison Experience, Edinburgh University Press,Edinburgh, 1995. Spierenburg has also made some attempt to elaborate just how a "process approach toprison history" may be differentiated from other approaches (see Pieter Spierenburg, The Prison Experience:Disciplinary Institutions and Their Inmates in Early Modern Europe, Rutgers University Press, NewBrunswick, 1991, esp. ch. 1).

43 Garland, Punishment and Modern Society, p. 126.

44 Garland, Punishment and Modern Society, p. 198.

45 Garland, Punishment and Modern Society, p. 197.

Introduction: Understanding PunisJunent in Colonial Settler Societies 17

is, however, somewhat vague on how historians and sociologists may operationalise this new

perspective and, a decade later, we have yet to see a comprehensive study that satisfies this

objective and represents the genuine cultural history described by Weiner.

The last of the explanatory perspectives that I will discuss in this introductory chapter is the

one with the longest history in the field ofpunishment studies. Beginning with the re­

publication in 1968 ofGeorg Rusche and Otto Kirchheimer's 1939 text, Punishment and

Social Structure, there has been a steady stream of scholarship concerned with the influence

ofpolitical economy on the process ofpunishment.46

As already mentioned, Rusche and

Kirchheimer were the first since Durkheim to conceive ofpunishment as a social

phenomenon, determined in large part by broader social forces. Punishment and Social

Structure advances the theory that modes ofpunishment in history have corresponded to

changes in the character ofthe labour market, specifically fluctuations in the supply oflabour.

In historical periods when labour is in plentiful supply, such as during the Middle Ages or the

early-nineteenth century, the mode ofpunishment becomes more severe, with capital and

corporal punishments commonplace and imprisonnlent increasing in austerity. When labour

becomes scarce, forms ofpunishment are altered to exploit the labour power ofoffenders or

better equip them for service in the labour market. Punishment also plays a crucial role in

disciplining the labour force by maintaining conditions that are consistently worse than those

experienced by the poorest in society, thereby encouraging the labouring classes to compete

for work.47

While Rusche and Kirchheimer's study has provided the inspiration for many scholars of

punishment, the premise that economic causes are always the primary ones is now widely

regarded as unsophisticated and outdated, with numerous studies pointing towards the

importance ofpolitical, ideological and cultural influences as well. As Garland has

concluded, Rusche and Kirchheimer's overly deterministic account ofeconomic forces

deciding penal developments omits

46 Rusche is now widely regarded as the real inspiration behind the work (see his article, "Labour Market andPenal Sanction: Thoughts on the Sociology ofCrirninal Justice", Crime and Social Justice, vol. 10, 1978, pp.2-8). The unusual history of authorship ofPunishment and Social Structure is discussed in Howe, Punishand Critique, pp. 12-16.

47 For summaries ofRusche and Kirchheimer's work, see Garland, Punishment and Modern Society, pp. 89­110; Howe, Punish and Critique, pp. 12-19; and Mark Colvin, Penitentiaries, Reformatories and ChainGangs: Social Theory and the History ofPunishment in Nineteenth-Century America, Macmillan, London,1997, pp. 12-17.

Introduction: Understanding Punishnlcnt in Colonial Settler Societies 18

the complex processes whereby economic structures come to affect socialpolicies, sometimes by imposing a direct imperative, sometimes by setting thebroad limits within which policies will be deemed feasible, most often byimposing considerations of economic 'good sense' in a way which compromisesor qualifies ideologically inspired initiatives.48

Others have not been so inclined to dismiss the observations and emphases ofPunishment and

Social Structure. In the 1970s and 1980s, in particular, authors attentive to the fundamental

importance ofpolitical economy in explaining penal change have, with few exceptions,

reproduced the obsession with analysing the link between changes in penal policy and

practice with changes in the wider economy and fluctuations in the labour market, applying a

variety of quantitative techniques to test available data.49 There is, however, comparatively

little historical work which focuses on the other aspects of the political economy of

punishment highlighted by Garland.50

Consequently, work in the political economic tradition has failed to take the high ground in

influencing historical work on penal change. Authors such as Foucault and Elias have

maintained currency at the expense of those more inclined towards a materialist framework. 51

I want to suggest that there are other aspects of the political economy ofpunishment that need

to be explored - the labour market thesis has thus far occupied too much historical space.

Further, examination of the prison as an institution subject to the fiscal concerns of the state

may yield some important insights. Historians need to do much more work on the productive

capacity ofpenal systems, and how this productive capacity placed limits on the development

ofpenal policy and practice. I argue in chapter seven that in Queensland it was concern about

the cost of maintaining a system ofimprisonment as the most severe sanction of the criminal

48 Garland, Punishment and Modern Society, p. 110. See also Howe, Punish and Critique, pp. 19-43.

49 For a discussion, see Howe, Punish and Critique, pp. 19-31. The best known study in this tradition is IvanJancovic, "Labour Market and Imprisonment", Crime and Social Justice, vol. 8, 1977, pp. 17-31.

50 Dario Melossi is the best known example of an author who has moved beyond the simple economism ofthe labour market thesis to revise the approach ofRusche and Kirchheimer in many important respects (seeDario Melossi and Massimo Pavarini, The Prison and the Factory: Origins ofthe Penitentiary System,Macmillan, London, 1981).

51 In 1987 Robert Weiss lamented the fact that while the recent trend in historical work on punishment was tobetter account for the relationship between the development of penal policy and concurrent changes in socialstructure, most histories ofpenal change continued to neglect "changes in political economy"("Humanitarianism, Labour Exploitation, or Social Control? A Critical Survey ofTheory and Research onthe Origin and Development of Prisons", Social History, vol. 12, no. 3, 1987, p. 331).

Illtroduction:Undcrslanding PUllishlllcnt ill Colonial Settlcr Societies 19

law (excluding the much less frequently imposed capital punishment) that had the most

significant impact on penal change in the period under analysis.

In a colonial society such as Queensland, where a government was more likely to invest in a

new railway line to service the pastoral interior than in a modem institution ofwelfare or

punishment, questions of economy were consistently to the fore. This obsession with

parsimony remained constant throughout the period under analysis, regardless of the fortunes

of the economy and the financial position of the state. the historian cannot help bufnotice

how Queensland governments consistently relied upon anticipated expense to justify inaction

when it came to resolving issues ofpenal-welfare. Raymond Evans, for example, was the first

to emphasise the contradiction between an essentially prosperous colony which "boasted of

limitless resources and a superior living standard: rich mineral deposits, an expanding pastoral

industry, steady economic growth, population explosion and a healthy public works

programme, to name only a few benefits", and the consistently low expenditure on welfare

institutions, whether in times ofboom or bust.52

The Queensland economy was an especially fragile one, characterised by "short-run benefit

and long-term disadvantage".53 In the early years, government policy was to stimulate

economic growth through immigration schemes and railway construction designed to hasten

the settlement and exploitation ofthe land. For the period under analysis, the structure of the

economy lacked diversity, relying on primary production for its strength.54 The pastoral

industry was the backbone of the economy from the 1840s, contributing more to Queensland's

prosperity than it did for the Australian colonies viewed as a whole. Mining developed in the

1870s but remained secondary to pastoralism. The dominant mode ofproduction was

comprador capitalist, with colonial entrepreneurs accumulating capital by acting as

52 Raymond 1. Evans, Charitable Institutions of the Queensland Government to 1919, MA thesis, Departmentof History, University of Queensland, 1969, p. 292.

53 Lewis, Ports a/Queensland, p. 89. For useful analyses of the Queensland economy, see J. Laverty, "TheQueensland Economy, 1860-1915", in DJ. Murphy, R.B. Joyce and Colin A. Hughes (eds), Prelude toPower: The Rise 0/the Labour Party in Queensland, 1885-1915, Jacaranda Press, Brisbane, 1970, pp. 28­44; Lewis, Ports a/Queensland, chs 2, 5, 8 and 11; and Bill Thorpe, Colonial Queensland: Perspectives on aFrontier Society, University ofQueensland Press, St Lucia, 1996, pp. 115-32. See also William LouisThorpe, A Social History ofColonial Queensland: Towards a Marxist Analysis, PhD thesis, Department ofHistory, University ofQueensland, 1986, chs 3 and 6.

54 There was, however, some diversification ofexports in the 1880s and 1890s (Lewis, Ports 0/Queensland,p. 89; and Laverty, "The Queensland Economy", pp. 29-30).

Introduction: Understanding Punislullent in Colonial Settler Societies 20

intennediaries between local producers and foreign merchants. Profits were frequently

invested in markets beyond the colony. The transitory nature of capital accumulation ensured

that local investment would be kept to a minimum. A significant impediment to greater

diversification in the local economy was the unanimous support from both conservative and

Labor governments for nurturing the primary base to Queensland's economy. Failure to

diversifY left the economy especially vulnerable to the setting ofcommodity prices in other

countries. When market prices went down overseas, the Queensland economy suffered. This

over-reliance on primary production led to greater cyclical instability and what has been

described as "rapid but uneven development".55

The comprador structure of the economy no doubt acted as an impediment to investment in

such unprofitable activities as social services. The capitalist class was unlikely to develop any

strong allegiance to the society in which it maintained only a financial interest, decreasing the

likelihood of significant philanthropic investment. And the government was likely to

prioritise expenditure on initiatives aimed at attracting capital investment to strengthen the

economy, rather than providing for the disadvantaged in society. lfthe imperative to protect

foreign investment was not enough, there was also a commonly-held fear that during times of

internal hardship precipitated by drought or some other climatic disaster; or during a period of

international economic distress, the Consolidated Revenue Fund would be depleted and the

colonial economy would be in crisis. This was not an unrealistic fear, given the structure of

the economy in this period. The pastoral industry went through numerous periods ofgrowth

and stagnation, agriculture continued to fail and remain undeveloped56, mineral production

expanded steadily until the 1910s, though remaining subordinate to pastoral production in the

overall economy, and manufacturing never developed to the same extent as in the southern

colonies.57 The erratic nature ofthe Queensland economy may be illustrated by comparing

the main periods of growth with those ofdepression or serious recession (see table 1.1). For

most in the Legislature, and for others in positions ofprominence in colonial society, no

matter how rosy the economic outlook appeared, there was always the fear that hard times

were just around the comer. This apprehension contributed towards the view that state capital

was best invested in initiatives likely to prove beneficial to the economy.

55 Lewis, Ports a/Queensland, p. 28. See also Thorpe, Colonial Queensland, pp. 103-132.

56 The sugar industry is the exception here, although it too experienced hard times in the 1ate-1880s.

57 Laverty has, nevertheless, demonstrated the inlportance of manufactming to the economy, especiallydming the depression years of the 1890s (Laverty, "The Queensland Economy", pp. 37-40).

Introduction: Understanding Punishment in Colonial Settler Societies

Table 1.1: Periods of significant economic growth and recession or depression inQueensland, 1859-1940

Growth Recession or depression

1860-66 1867-70

1871-77 1878-79

1880-84 1884-86

1887-89 1890-93

1895-97 1897-02

1908-14 1914-17

1918-20

1921-25 1926-31

1934-39

Source: Lewis, Ports ofQueensland, cbs 2, 5, 8 and 11.

In a society where steady immigration and substantial capital investment were necessary

ingredients for continued social and material advancement, it would have been imprudent to

unsettle the confidence ofpotential immigrants or investors by pointing to any social ills in

the new colony.58 It is not surprising, therefore, that there also developed an ideological

rationale for placing limits on state benevolence. The very nature of colonial society, where

social and material resources were geared towards the creation ofa new society based on the

old world but free of its social and environmental problems, ensured that little sympathy

would be entertained for the hapless or deviant colonist. Raymond Evans has suggested that:

The virtues and rewards of industry were even more insistently proclaimed in afrontier environment than within a well-established society, for rigorous toil in anew colony suggested not only self-improvement and general economic well­being, but stood also as imperative for community survival and progress amidstnew and naturally hostile surroundings.59

21

In the colonial environment, dependence was perceived by many as a synonym for idleness ­

the fault lay with the individual, not the discouraging competitiveness and alienating capacity

58 Beverley Kingston, Glad, Confident Morning, 1860-1900: The Oxford History ofAustralia, vol. 3, OxfordUniversity Press, Melbourne, 1993, p. 58.

59 Raymond Evans, "The Hidden Colonists: Deviance and Social Control in Colonial Queensland", in JillRoe (ed), Social Policy in Australia: Some Perspectives, 1901-1975, Cassell, Sydney, 1976, p. 75.

Introduction: Understanding PunisIJnlent in Colonial Settler Societies 22

of the colonial social system. This attitude towards the luckless has also been noted in the

New Zealand context.60

From the above summary, we can see that there exists a diverse range of theoretical

perspectives through which penal transformation has been described and understood. In

subsequent chapters we will see how these explanatory perspectives may be deployed in

explaining penal transformation in a colonial context. In so doing, it becomes clear that there

is little to be gained from privileging one mode ofexplanation over all others. By viewing

these perspectives as complementary, and borrowing from each as required, it is possible to

produce a balanced account ofpenal change in colonial Queensland, one that acknowledges

the simultaneous activity ofprocesses ofnormalisation and domination, rationalisation,

cultural transformation, gender differentiation and political economy.

Much of this theoretical work in the history and sociology ofpunishment has already begun to

influence the writing ofpunishment history in colonial settler societies similar to Queensland,

but there is yet to be produced a work ofcomparison that draws together the findings of this

historiography and assesses its implications so that we may begin to determine whether there

is such a phenomenon as 'colonial penality' (see below for a discussion of the

historiography).61 Such an endeavour would seem worthwhile given that there has already

been established a good case for the existence of fundamental similarities in the histories of

these societies, not to mention the ubiquitous role that institutions ofpunishment have played

in the histories ofcolonisation and exploitation in societies such as Australia and South

Afri 62ca.

According to Donald Denoon, colonial settler states in the nineteenth and early twentieth

centuries shared a number ofcommon characteristics: they each began as a garrison outpost of

empire; there was an absence of an indigenous economy able to be exploited; the indigenous

60 See, for example, Miles Fairburn, The Ideal Society and Its Enemies, Auckland University Press,Auckland, 1989.

61 John Pratt has, however, paid particular attention to the distinctively colonial aspects ofpunishment in NewZealand. See John Pratt, Punishment in a Peifect Society: The New Zealand Penal System, 1840-1939,Victoria University Press, Wellington, 1992, ch. 3; and his review article ofGarland's Punishment andModern Society, "Understanding Punishment: Beyond 'Aims and Objectives"', Current Issues in CriminalJustice, vol. 5, no. 3, 1994,p.307.

62 For a recent discussion of the writing on settler capitalism, see Bill Thorpe, Colonial Queensland:Perspectives on a Frontier Society, University ofQueensland Press, St Lucia, 1996, ch. 5.

Introduction: Understanding Punislul1ent in Colonial Settler Societies 23

population was quickly displaced and did not constitute the main source oflabour for the new

economy; they were peculiarly attractive to British capital and they relied heavily on Britain

as a life-line to Europe; they took advantage ofnew enterprises, transport, market

opportunities to expand and, as long as foreign capital investment continued, their political

systems seldom provoked intervention from Britain; the economy was based on a few export

staples, usually the products ofpastoralism, which hindered the development of subsistence

farming and local manufacturing; they were peculiarly mobile and strikingly affluent; their

literati thought of themselves as Europeans abroad; and the social relations ofproduction

were predominantly capitalist.63 In general terms, the Australian colonies, New Zealand,

South Africa, Argentina, Uruguay and Canada, all conformed to this typology.64

Colonial Queensland, in particular, was a large, sparsely settled territory. Despite its

economic dependence on primary production, the population was concentrated in coastal

towns and cities that served inland pastoral and mining regions. The distances between the

main centres were large, and communication was frequently hampered by undeveloped or

inadequate transportation and the regular intrusion ofa capricious climate. Significant

investment in railway construction was a major attempt to deal with the particular problem of

distance. The colony experienced dramatic population growth which received its impetus

from large numbers of immigrants who arrived from the 1860s, many under assisted

passage.65 The majority of these new colonists acknowledged Anglo-Irish heritage, but there

were also significant numbers ofGerman, Scandinavian and later Italian migrants. The

spread ofEuropean settlement further displaced an indigenous population which had been

decimated by introduced disease and settler violence. The Aborigines were dispossessed of

their traditional lands and were frequently exploited as a cheap source oflabour or as

convenient objects for sex. For the colonisers, the bulk ofpaid employment was in domestic

service, on the land, and in the mining, building and transportation industries. From the

1880s, a strong labour movement emerged to challenge the cultural and political hegemony of

63 Donald Denoon, "Understanding Settler Societies", Australian Historical Studies, vol. 18, no. 73, 1979,pp. 511-29; and Settler Capitalism: The Dynamics ofDependent Development in the Southern Hemisphere,Clarendon Press, Oxford, 1983.

64 Thorpe, however, has expressed some minor reservations, Colonial Queensland, pp. 192-5.

65 The population rose by 300 per cent in the decade 1861-71, 78 per cent in 1871-81, 84 per cent in 1881­91,27 per cent in 1891-1901, and just over 20 per cent in the following two decades. In 1861, the estimatedpopulation of the colony was approximately 30,000, in 1881 214,000, in 1901 almost 500,000, and by 1921it had reached 755,000 (Laverty, "The Queensland Economy", p. 29).

fntroduction:Understanding PunisIllnent in Colonial Settler Societies 24

landowners, merchants and traders who had dominated the governance ofQueensland society

in the early colonial period. But there was also the persistence of unfree labour, most

significantly in the form of the indentured labour of Melanesians and other foreign workers in

the colonial sugar industry.66

Denoon has also criticised the cultural determinism evident in much of the early

historiography of these societies, questioning the obsession with explaining events in terms of

a "cultural inheritance". Not to deny the profound influence ofBritish political institutions

and ideologies, the emphasis, he argues, should be upon the circumstances of the settler

society rather than the heritage of its people. Settler states were not completely dominated by

Great Britain, but were largely free to establish their own institutions and devise their own

responses to certain problems. This is particularly the case when one examines the history of

punishment in Queensland, where we find numerous examples ofdeviation from imperial

policy and practice. Denoon also makes the following point: "the fact that settler societies

resemble one another in several respects, is not a consequence of conscious imitation, but of

separate efforts to resolve very similar problems".67 It may repay our efforts ifwe are to

investigate the various responses of settler societies to similar problems ofcrime and disorder,

and how these societies chose to punish offenders.

It may yet be premature to attempt such a work ofcomparison when the historiography still

lacks major works oftheoretically informed punishment history in the majority of

jurisdictions that comprise these societies. But ifstudies continue to be produced with this

project in mind, then with the passage of time some strong conclusions may ultimately be

drawn. It may tum out that there is no evidence for a distinctive colonial penality, but this

should not negate the value of embarking upon such a project. Whatever is discovered should

help to inform the analyses ofpunishment that have been undertaken in the imperial

jurisdictions. Focusing on the history ofpunishment in colonial societies will at least allow us

to better understand the way in which the penal policies and practices developed in Europe

were transplanted, with or without modification, into these societies. Analysing the histories

66 For general histories of Queensland, see, in particular, Ross Fitzgerald, From the Dreaming to 1915: AHistory ofQueensland, University of Queensland Press, St Lucia, 1982; and his second volume, From 1915to the Early 1980s, University ofQueensland Press, St Lucia, 1984; W. Ross Johnston, Call ofthe Land: AHistory ofQueensland to the Present Day, Jacaranda Press, Brisbane, 1982; and Thorpe, ColonialQueensland.

67 Denoon, "Understanding Settler Societies", p. 518.

lutroduction:Understanding Punishmentil1 Colonial Settler Societies 25

ofperipheral states may ultimately inform our knowledge of the imperial core, at least in

terms of suggesting possible future lines of inquiry for the latter.

Historiography

This thesis has been written without the advantage of intersecting with a well-developed

historiography ofpunishment studies in Australia. The study ofpost-convict punishment has

for many years been a neglected area ofAustralian studies, attracting few substantial works

informed by the now extensive international historiography. With few exceptions, it is a

feature of criminal justice history common to all colonial settler jurisdictions. The publication

in 1992 of John Pratt's Punishment in a Perfect Society has gone a long way towards

redressing this situation in New Zealand, and almost a decade later his study remains the most

substantial undertaken in the colonial settler states of the southern hemisphere.68 The

situation is similar in other colonial states.

In Canada, there has been a great deal of attention paid to the historical development of

particular prisons, especially the Kingston Penitentiary in Ontario.69 But there has been a

tendency not to investigate the development ofwhole penal systems in specific jurisdictions.70

68 See also, Bronwyn Dalley, "Following the Rules? Women's Responses to Incarceration, New Zealand,1880-1920", Journal ofSocial History, vol. 27, no. 2, 1993, pp. 309-25; and her "Prisons Without Men: TheDevelopment ofa Separate Women's Prison in New Zealand", New Zealand Journal ofHistory, vol. 70, no.1, 1993, pp. 37-60.

69 For histories of Kingston see, in particular, C.J. Taylor, "The Kingston, Ontario Penitentiary and MoralArchitecture", Histoire social- Social History, vol. 12, no. 24, 1979, pp. 385-408; Bryan Palmer, "KingstonMechanics and the Rise of the Penitentiary, 1833-1836", Histoire social - Social History, vol. 13, no. 25,1980, pp. 7-32; Dorothy E. Chun, "Good Men Work Hard: Convict Labour in Kingston Penitentiary, 1835­1850", Canadian Criminology Forum, vol. 4, 1981, pp. 13-22; Rainer Baehre, "Origins of the PenitentiarySystem in Upper Canada", Ontario History, vol. 69, 1977, pp. 185-207; and J. Jerald Bellomo, "UpperCanadian Attitudes Towards Crime and Punishment (1832-1851)", Ontario History, vol. 64, 1972, pp. 11-26.On other institutions, see, for example, Rainer Baehre, "Prison as Factory, Convict as Worker: A Study of

the Mid-Victorian St John Penitentiary, 1841-1880", in Jim Phillips, Tina Loo and Susan Lewthwaite (eds),Essays in the History ofCanadian Law, vol. 5, Crime and Criminal Justice, Toronto University Press,Toronto, 1994, pp. 439-77; and Joseph Gondor Berkovits, "Prisoners for Profit: Convict Labour in theOntario Central Prison, 1874-1915", in Phillips, et al (eds), Essays in the History ofCanadian Law, vol. 5,pp. 478-515.. For a discussion ofCanadian punishment history, see Jim Phillips, "Crime and Punishment inthe Dominion of the North: Canada From New France to the Present", in Clive Emsley and Louis A. Knafla(eds), Crime History and Histories ofCrime: Studies in the Historiography ofCrime and Criminal Justice inModern History, Contributions in Criminology and Penology, no. 48, Greenwood Press, Westport,Connecticut, 1996, pp. 167-9.

70 The federal penitentiary system has, however, attracted some attention. See, for example, W.A. Calder,"Convict Life in Canadian Federal Penitentiaries, 1867-1900", in Louis A. Knafla (ed.), Crime and CriminalJustice in Europe and Canada, WildrifLaurier University Press, Waterloo, Ontario, 1981, pp. 297-318.

Introduction: Understanding Punislunent ill Colonial Settler Societies 26

Only Peter Oliver's history ofpunishment in Ontario in the nineteenth century offers a

substantial narrative history ofpenal change in a large jurisdiction, and over a significant

period oftime.71 It would appear that there is much less written on the history of

imprisonment in South Africa.72 Published studies to date emphasise the influence ofwhite

nationalism on the development of criminology and penal policy in post-Union South Africa,

and the important role of the prison and compound in the industrial expansion of the South

African state.73 The United States remains the exception, with an extensive historiography of

punishment studies covering a wide array ofjurisdictions and periods.74 There are, however,

good reasons for viewing the United States as a separate case, such as its early settlement and

massive population growth, its subsequent industrial development and rapid economic

growth, not to mention its graduation to an imperial power in the nineteenth century with the

acquisition of foreign territories. However, specific aspects of its penal history, such as

capital punishment and race, and the political economy ofprison development in the southern

states, would make useful themes for comparison with other settler states.

Turning now to Australia, the recent publication ofMark Finnane's Punishment in Australian

Society has done much to delineate the major contours ofchange in penal policy and practice

in the Australian jurisdictions from the mid-nineteenth century to the 1960s, suggesting many

lines of future inquiry. Yet, as the author himselfemphasises, his short book is necessarily a

broad overview that lfaims to stimulate further inquiry and, especially, to inform contemporary

71 Peter Oliver, 'Terror to Evil-Doers': Prisons and Punishments in Nineteenth-Century Ontario, UniversityofToronto Press for the Osgoode Society for Canadian Legal History, Toronto, 1998.

72 For a comprehensive review, see Dirk van Zyl Smit, South African Prison Law and Practice, Butterworths,Durban, 1992, pp. 1-43.

73 Linda Chisholm, "The Pedagogy ofPorter: The Origins of the Reformatory in the Cape Colony, 1882­1910", Journal ofAfrican History, vol. 27, 1986, pp. 481-95; and her "Crime, Class and Nationalism: TheCriminology of Jacon de Villiers Roos, 1869-1918", Social Dynamics, vol. 13, no. 2, 1987, pp. 46-59; Dirkvan Zyl Smit, "Public Policy and the Punishment ofCrime in a Divided Society: A Historical Perspective onthe South African Penal System", Crime and Social Justice, nos. 21-22, 1984, pp. 146-62; and his PrisonLabour in South Africa, Occasional Paper Series, Institute of Criminology, University of Cape Town, CapeTown, 1996; T.M. Corry, Prison Labour in South Africa, National Institute for Crime Prevention and theRehabilitation ofOffenders, Cape Town, 1977; Charles van Onselen, Studies in the Social and EconomicHistory ofthe Witwatersrand, vols. 1-2, Ravan, Johannesburg, 1982; and his "Crime and Total Institutions inthe Making of Modem South Africa: The Life of'Nongoloza' Mathebula, 1867-1948", History WorkshopJournal, no. 19, 1985, pp. 62-81.

74 For a recent study that reviews much of the historiography, see Adam J. Hirsch, The Rise ofthePenitentiary: Prisons and Punishment in Early America, Yale University Press, New Haven, 1992.

Introduction: Understanding Punislullent in Colonial Settler Societies 27

debates on punishment with some historical perspective".75 A glance at the book's

bibliography suggests that there has been persistent attention paid to many aspects of the

history ofpunishment in Australian society, but that this interest has rarely, if ever,

materialised in a detailed jurisdictional study informed by recent post-revisionist trends in the

history and sociology ofpunishment.

The omission is surprising when considered against the burgeoning field ofcriminal justice

history in Europe and North America; even more so, when the veritable obsession with

Australia's convict past is taken into account.76 From the 1970s, there have been a number of

general criminal justice histories produced outside Australia, along with numerous studies of

specific aspects ofparticular criminal justice systems.?? Australian scholars have been slow to

follow this example, but there is now a steadily developing body of scholarship in the field.78

Yet the study ofAustralian criminal justice history remains somewhat ofa specialism, failing

to have much impact on more general studies ofAustralian history. The Canadian situation is

identical, amounting to what Jim Phillips has described as "the inability ofcriminal justice

history to intrude itself into the general consciousness of the historical community".79 Most

general histories ofAustralia end their discussion ofcrime and punishment with the cessation

of transportation in the mid-nineteenth century - only occasionally referring to themes such as

the treatment ofAborigines or sensational crime when addressing the following century and a

75 Mark Finnane, Punishment in Australian Society, Oxford University Press, Melbourne, 1997, p. xii.

76 For a comprehensive review of the historiography, see Ernsley and Knafia (eds), Crime History andHistories ofCrime. For further evidence of the depth ofresearch, see also Eric H. Monkkonen, "The HistoryofCrime and Criminal Justice after Twenty-Five Years", Criminal Justice History, vol. 5, 1984, pp. 161-9;and Xavier Rousseau, "Criminality and Criminal Justice History in Europe, 1250-1850: A SelectBibliography", Criminal Justice History, vol. 14, 1993, pp. 159-81. The Australian preoccupation withconvictism can be gleaned from Stephen Garton's article "The Convict Origins Debate: Historians and theProblem of the Criminal Class", Australian and New Zealand Journal ofCriminology, vol. 24, no. 2, 1991,pp. 66-82; and Finnane, Punishment in Australian Society, pp. 2-5.

77 An example of the former is Clive Ernsley, Crime and Society in England, 1750-1900, Longman, London,1987. The references and bibliographical note in the second edition are testament to the growing number ofmore specific studies in English criminal justice history (publ. 1996); and the essays in Ernsley and Knafla,Crime History and Histories ofCrime, suggest that this is not a phenomenon unique to Britain. See also,Peter King, "Locating Histories ofCrime: A Bibliographical Study", British Journal ofCriminology, SpecialIssue, vol. 39, no. 1,1999, pp. 161-74.

78 For recent reviews, see David Philips, "A Nation of Rogues? Recent Writings on Crime, Law andPunishment in Australian History", Australian and New Zealand Journal ofCriminology, vol. 24, no. 2,1991, pp. 161-6; and Stephen Garton, "The Convict Taint: Australia and New Zealand", in Ernsley andKnafia (eds), Crime History and Histories ofCrime, eh. 12.

79 Phillips, "Crime and Punishment in the Dominion of the North", p. 183.

Introduction: Understanding Punislullent in Colonial Settler Societies 28

half. 80 It may be some time yet before the field develops sufficiently to influence the way in

which historians interpret Australia's past.

When we survey the particular historiography ofpenal studies in Australia, we find a field that

has been dominated by official and semi-official histories of imprisonment.8! These general

histories include the work of Ramsland, Lynn and Armstrong, and Thomas and Stewart.82

Focussing on the successive administrations of senior penal administrators, each of these texts

unconditionally endorses the humanitarian reform theory ofpenal change, in which penal

transformation is explained in terms ofthe progressive influence of reformers or enlightened

administrators. 83 Despite being the earliest, Thomas and Stewart's study remains the best of

this collection, distinguishing itself from the latter two in its breadth of research and

willingness to be critical.s4

The late-1970s and early-1980s witnessed a briefperiod of more critical writings on the dire

state ofpenal affairs that occupied both official and public discourses at the time, although the

majority of these studies were produced without much in the way of an historical context.85 It

80 Kingston's Glad, Confident Morning, is a rare exception{see pp. 167-73).

81 There have been other contributions in the form ofbiographies, such as Stephen Garton, "FrederickWilliam Neitenstein: Juvenile Reformatory and Prison Reform in New South Wales, 1878-1909", Journal ofthe Royal Australian Historical Society, vol. 75, pt 1, 1989, pp. 51-64; and lV. Barry's two works,Alexander Maconochie ofNorfolk Island: A Study ofa Pioneer in Penal Refonn, Oxford University Press,Melbourne, 1958; and The Life and Death ofJohn Price: A Study ofthe Exercise ofNaked Power,Melbourne University Press, Melbourne, 1964. Since the nineteenth century, some reminiscences of inmatesand prison staffhave also been published, including a book by former Queensland prison superintendent,John Roy Stephenson (Nor Iron Bars a Cage, Boolarong, Brisbane, 1982). There have even been textsproduced for the tourist market, such as Jarvis Finger's cnllection ofshort publications on Queensland's StHelena Penal Establishment (True Tales ofOld St Helena, Boolarong, Brisbane, 1986; The Escapesfrom StHelena, Boolarong, Brisbane, 1987; and More True Tales ofOld St Helena, Boolarong, Brisbane, 1987).

82 John Ramsland, With Just But Relentless Discipline: A Social History ofCorrective Services in New SouthWales, Kangaroo Press, Sydney, 1996; Peter Lyrm and George Annstrong, From Pentonville to Pentridge: AHistolyofPrisons in Victoria, State Library of Victoria, Melbourne, 1996; and J.E. Thomas and AlexStewart, Imprisonment in Western Australia: Evolution, TheolY and Practice, University of WesternAustralia Press, Perth, 1978.

83 This traditional form of explanation dominated criminal justice history until being significantly displacedby the new ideas of the revisionists in the 1970s (see, for example, Philips, '''A Just Measure of Crime,Authority, Hunters and Blue Locusts"', pp. 51-4; and Howe, Punish and Critique, pp. 47-9).

84 For a study that focuses on the early history of imprisonment in Western Australia, see Louise 1. Bavin,"Punishment, Prisons and Reform: Incarceration in Western Australia in the Nineteenth Century", in CharlieFox (ed), Historical Refractions: Studies in Western Australian History, vol. 14, 1993, pp. 121-48.

85 Fiori Rinaldi, Australian Prisons, F & M Publishers, Canberra, 1977; Tony Vinson (with research andeditorial help by Paul Rea), Wilful Obstruction: The Frustration ofPrison Refonn, Methuen, Sydney, 1982;

Introduction: Understanding Punislullent in Colonial Settler Societies 29

would be another decade before historians would tum their attention to producing historical

analyses ofaspects of Australia's penal history. The bulk of this work eventually appeared in

article fonn, its subjects many and varied. Christopher Mead, for example, has focussed on

the histories of three different penal institutions to argue that the perpetual goal of establishing

an institution that was "tough but fair" was the main driving force ofpenal change in colonial

and post-colonial New South Wales. As an institution became obsolete, it was replaced by

another that promised to deliver a regime consistent with the rhetoric ofpenal refonn, but all

were destined to fail in the long tenn.86 There has been some attention paid to the political

economy ofpunishment, in particular the relationship between incarceration rates and labour

market fluctuations. 87 Bill Tyler has examined the impact of race on the conditions of

imprisonment in the Northern Territory.88 Richard Broome's study ofPentridge Prison in

Melbourne focuses attention on the place ofa prison within its local community.89 There has

also been a detailed study of the architecture ofAustralian penal institutions which highlights

both the imperial influence on Australian prison architecture and the development ofa

distinctive colonial penal style.9o This small collection ofacademic studies has culminated in

the publication ofFinnane's work of synthesis and original research.91

and George Zdenkowski and David Brown, The Prison Struggle: Changing Australia's Penal System,Penguin, Ringwood, 1982.

86 Christopher Mead, "Tough But Fair: Some Practices ofImprisonment in NSW, 1866-1914", Journal oftheRoyal Australian Historical Society, vol. 77, pt 3,1991, pp. 57-79.

87 John Braithwaite, "The Political Economy of Punishment", in E.L. Wheelwright and Ken Buckley (eds),Essays in the Political Economy ofAustmlian Capitalism, vol. 4, Australia and New Zealand Book Co.,Sydney, 1980, pp. 192-208; and Stephen Garton, "The State, Labour Markets and Incarceration: A Critique",in Mark Findlay and Russell Hogg (eds) Understanding Crime and Criminal Justice, Law Book Co., Sydney,1988, pp. 309-35. For a study that examines the impact ofnew sentencing practices and the proliferation ofspecialist institutions on the decline in prison admissions in New South Wales, see also Stephen Garton, "Bador Mad? Developments in Incarceration in New South Wales, 1880-1920", in Sydney Labour History Group(ed.), What Rough Beast? the State and Social Order in Australian History, George Allen and Unwin,Sydney, 1982,pp. 89-110.

88 Bill Tyler, "Penology on an Australian Frontier", Journal ofNorthern Territory History, vol. 4, 1993, pp.23-35.

89 Richard Broome, "The Stigma ofPentridge: The View from Coburg 1850-1987", Journal ofAustralianStudies, no. 22, 1988, pp. 3-18.

90 James Semple Kerr, Out ofSight, Out ofMind: Australia's Places ofConfinement, 1788-1988, S.H. ErvinGallery, National Trust ofAustralia (NSW), Sydney, 1988. The book is not confmed to the material, and isalso useful for its occasional references to the social aspects of imprisonment.

91 Finnane, Punishment in Australian Society. See also his earlier article "After the Convicts: Towards aHistory ofImprisonment in Australia", Australian and New Zealand Jounal ofCriminology, vol. 24, no. 2,1991, pp. 105-17, which delineated some broad parameters of inquiry in the history ofpunishment inAustralia, later taken up in his monograph.

hltroduction:Undcrstanding Punishnlent in Colonial Settler Societies 30

The main body ofacademic work on post-convict imprisonment in Australia, however,

remains in unpublished form on the shelves of thesis libraries at a variety of tertiary

institutions.92 It is a fractured assortment ofworks, in the main each written independently of

the others and adopting some divergent perspectives which, when assessed as a collection, do

not constitute a coherent paradigm ofpenal history that may be either supported, revised or

overturned. Queensland historians have also contributed to this body ofscholarship. The

earliest and most informative of these is Ian Lincoln's history of imprisonment in Queensland,

covering the period from 1859 to 1890.93 It is a well researched empirical study that

addresses the majority ofkey events in this period. It is, however, compromised by the

author's recourse to the humanitarian reform theory ofpenal change (despite his protestations

to the contrary). The thesis concludes with the introduction of the Prisons Act of1890,

arguing that an antiquated, obsolete and harsh colonial penal system was cast aside with the

passage ofprogressive new legislation. The evidence that will be presented in the following

chapters would suggest that Lincoln's was a hasty assumption, and that penal trajectories were

determined by more than just the will to reform.

This small but expanding corpus ofwork has provided us with some important insights into

Australia's penal history. Yet there are many aspects ofthis history that remain largely

unexplored in most of the jurisdictions. For example, we know little about the various prison

regimes in operation during the colonial and early post-colonial period - how these regimes

were structured to discipline and reform inmates, how they were enforced, how they varied

between institutions and jurisdictions, how they were challenged by inmates. Consequently,

we know little about the correspondence or disparity between the rhetoric and intentions of

92 See, for example, A.R.G. Griffiths, A History of South Australian Prisons, MA thesis, Department ofHistory, University of Adelaide, 1964; Merri1yn Lee Sernack Cruise, Penal Reform in New South Wales:Frederick William Neitenstein, 1896-1909, PhD thesis, Department ofGovernment and PublicAdministration, University of Sydney, 1980; and Lynnette Stevenson, Fremantle Prison in the 1890s, MAiliesis, History Department, University ofWestern Australia, 1983. Susanne E. Davies' doctoral thesis onvagrancy in Victoria examines the various institutions used to detain this class of offender, including prisons(Vagrancy and the Victorians: The Social Construction of the Vagrant in Melbourne, 1880-1907, PhD thesis,History Department, University ofMelboume, 1990, ch. 5).

93 Ian Lincoln, The Punishment ofCrime in Queensland, 1860-1890, BA Hons thesis, Department of History,University ofQueensland, 1966. Libby Connors' work on the earlier pre-separation period also includes twoinformative chapters on punishment, however its empirical focus is largely beyond the boundaries of thepresent study (The 'Birili of the Prison' and the Deafu ofConvictism). For other, somewhat less useful,histories, see Jane Chester, Prisons, Prostitutes and Power: Queensland Women's Imprisonment, 1890-1905,BA Hons thesis, Griffith University, 1989; and Amanda S.M. Smith, Townsville's Old Gaol: A Study ofPeople and Structures, Graduate Diploma thesis, James Cook University ofNorfu Queensland, 1992.

lntroduction: Understanding Punishment in Colonial Settler Societies 31

penal administrators and reformers and the realities of life in prison - between what was

intended and what was achieved. We also know little about the particular experiences of

different categories ofprisoners, such as women, recidivists, and Aborigines and other non­

Europeans. We have only scant knowledge of the dominant personalities involved in prison

administration and penal reform. And we have little in the way of considered explanations for

the changes that have taken place in the penal systems ofvarious jurisdictions. With

particular reference to Queensland's penal history, these and other themes will be explored in

this thesis.

There are, however, other areas in the post-convict history ofpunishment that have received

more significant attention. The first of these is capital punishment. Public fascination with

the death penalty has not been matched by a well-developed body of historical scholarship in

Australia, despite a steady stream of interest amongst its scholars. For Queensland, there is

the fairly detailed, though somewhat dated, work ofRoss Barber.94 More recently, Barber's

efforts have been complemented by the studies ofother historians who have emphasised the

importance of race in the use ofcapital punishment in the Queensland context.95 For the other

Australian jurisdictions, the bulk ofwork on the subject has concentrated upon either

statistical analyses of the use ofcapital punishment or detailed studies of its victims in

particular instances, leaving unexplored many other features which deserve more detailed

consideration.96 Carolyn Strange's study of tum-of-the-century New South Wales and

94 R. Barber, Capital Punishment in Queensland, BA Hons thesis, Department ofGovernment, University ofQueensland, 1967; R.N. Barber and P.R. Wilson, "Deterrent Aspects ofCapital Punishment and its Affect onConviction Rates: The Queensland experience", Australian and New Zealand Journal ofCriminology, vol. 2,1968, pp. 100-08; R.N. Barber, "The Labor Party and the Abolition of Capital Punishment in Queensland,1899-1922", Queensland Heritage, vol. 1, no. 9, 1968, pp. 3-12; and R. Barber, "Rape as a Capital Offencein Nineteenth Century Queensland", Australian Journal ofPolitics and History, vol. 21, 1975, pp. 31-41.

95 Libby Connors, "The Theatre of Justice: Race Relations and Capital Punishment at Moreton Bay, 1841­59" in Brisbane: The Aboriginal Presence, 1824-1860. Brisbane Hist01Y Group, Papers no. 11, 1992, pp.48-57 and her thesis, The 'Birth of the Prison' and the Death ofConvictism: The operation of the law in pre­separation Queensland 1839 to 1859, PhD thesis, Department of HistOly, University of Queensland, 1990,pp. 100-11; and Carmel Harris, "The Terror of the Law as Applied to Black Rapists in Colonial Queensland",Hecate, vol. 8, no. 2, 1982, pp. 22-48.

96 Michael Cannon, The Woman as Murderer: Five who paid with their lives, Momington, 1994; SusanneDavies, "Aborigines, Murder and the Criminal Law in Early POli Phillip, 1841-1851", Historical Studies, vol.22, no. 88, 1987, pp. 313-35; R.P. Davis, The Tasmanian Gallows: A Study ofCapital Punishment, Cat &Fiddle Press, Hobart, 1974; Roger Douglas and Kathy Laster, "A Matter of Life and Death: The VictorianExecutive and the Decision to Execute 1842-1967", Australian and New Zealand Journal ofCriminology,vol. 24, 1991, pp. 144-60; A.R.G. Griffiths, "Capital Punishment in South Australia, 1836-1964", Australianand New Zealand Journal ofCriminology, vol. 3,1970, pp. 214-22; Kathy Laster, "Famous Last Words:Criminals on the Scaffold, Victoria, Australia, 1842-1967", International Journal ofthe Sociology ofLaw,vol. 22, 1994, pp. 1-18; Kathy Laster, "Arbitrary Chivalry: Women and Capital Punishment in Victoria,

fntroduction:Understanding Punislllnent in Colonial Settler Societies 32

Ontario stands out as the only attempt to extend beyond a local perspective to explore themes

common to colonial settler jurisdictions.97 The present work, however, seeks to intersect with

an international debate by analysing the execution ritual itself as it was practised in

Queensland, tracing the gradual changes in the method of its implementation and assessing its

place in the judicial process.98

Attention to specific populations has once again been very selective. On a positive note, there

has been much historical work in the area ofboth criminal and neglected children, although it

has largely been confined to the institutional experiences of this group. There are a number of

studies dealing with the industrial and reformatory school system in Queensland.99 This is

consistent with the remainder ofAustralia, where much has been written on the southern

states in particular. 100 The field has also been strengthened by the publication of an excellent

1842-1967", in David Philips and Susanne Davies (eds), A Nation o/Rogues: Crime, Law and Punishment inColonial Australia, Melbourne University Press, Melbourne, 1994, pp. 166-86; K. Laster and K. Alexander,"Chivalry or Death: Women on the Gallows in Victoria, 1856-1975", Criminology Australia, vol. 4, no. 2,1992, pp. 6-10; Andrew Lattas, "The Aesthetics ofTerror and the Personification of Power: PublicExecutions and the Cultural Construction ofClass Relations in Colonial New South Wales, 1788-1830",Social Analysis, vol. 19, 1986, pp. 3-21; David Philips, "Anatomy ofa Rape Case, 1888: Sex, Race,Violence, and Criminal Law in Victoria", in Philips and Davies (eds), A Nation 0/Rogues, pp. 97-122; andMichael Sturma, "Public Executions and the Ritual ofDeath, 1838", Push From the Bush, no. 15, 1983,pp.3-11. See also Hank Nelson, "The Swinging Index: Capital Punishment and British and AustralianAdministrations in Papua and New Guinea, 1888-1945", Journal 0/Pacific History, vol. 8, pt 3, 1978, pp.130-52.

97 Carolyn Strange, "Discretionary Justice: Political Culture and the Death Penalty in New South Wales andOntario, 1890-1920", in Carolyn Strange (ed), Qualities o/Mercy: Justice, Punishment, and Discretion,University ofBritish Columbia Press, Vancouver, 1996, pp. 130~65.

98 For a broader study of this transition, examining each of the Australian colonies, see John McGuire,"Judicial Violence and the 'Civilizing Process': Race and the Transition from Public to Private Executions inColonial Australia", Australian Historical Studies, vol. 29, no. 111, 1998, pp. 187-209.

99 The most important of these are Laraine Goldman's thesis, Child Welfare in Nineteenth CenturyQueensland, 1865-1911, BA Hons thesis, Department ofHistory, University ofQueensland, 1978, especiallych. 5; and George M. Schofield, An Overview of the Methods ofState Child Care in Queensland, 1864-1965,BSocWk Hons, Department of Social Work, University of Queensland, 1971. See also QueenslandGovernment, Commission 0/Inquiry into Abuse 0/Children in Queensland Institutions (Forde Inquiry),Brisbane, 1999, chs 3, 4,5 and 7. Other works include Gail Reekie and Paul Wilson, "Criminal Children:Childhood and the Law Since 1865", Queensland Review, vol. 3, no. 2, 1996, pp. 76-85; Alan Savige,'''Naughty Boys': The Education ofRefonnatory School Boys at Lytton, 1881-1899", Journal o/the RoyalHistorical Society o/Queensland, vol. 15, no. 1, 1993, pp. 33-48; and "Rascals and Renegades: TheProserpine Reformatory for Boys, 1871-1881", in Greg Logan and Tom Watson (eds), Soldiers a/theService: Some Early Queensland Educators and Their Schools, History ofQueensland Education Society,Brisbane, 1992, pp. 86-94.

100 See especially, Margaret Barbalet, Far From a Low Gutter Girl: The Forgotten World o/State Wards:South Australia 1887-1940, Oxford University Press, Melbourne, 1983; Penelope Hetherington,"Australian Colonial Law and the Construction of Childhood: The Example of Western Australia, 1829­1907", in Dianne Kirkby (ed), Sex, Power and Justice: Historical Perspectives on Law in Australia,

Introduction: Understanding PUllislunent in Colonial Settler Societies 33

overview study that takes in all of the Australian jurisdictions. 101 Indeed, juvenile

delinquency stands out as one ofthe few aspects ofAustralian criminal justice history that has

been studied in significant detail by the historical profession. It should be emphasised that it

is the destitute and neglected children sentenced to care in industrial schools who receive the

most detailed treatment, while the children detained for criminal convictions have attracted

somewhat less attention.

Yet there remain important populations that have not received similar treatment. In

particular, the history ofwomen's imprisonment in Australia has received no significant

attention as a theme worth pursuing in its own right. There has been selective attention in the

few general histories of imprisonment, but nothing in sufficient detail to do justice to the

subject. I02 This inattention to a population that has in recent times become increasingly well

treated by overseas scholars has not passed unnoticed. Adrian Howe has shown that the

critical perspectives on punishment that have emerged in recent decades are, with few

exceptions, "profoundly masculinist" .103 It is perhaps not surprising that this absence of an

imposing feminist critical tradition has constituted a significant impediment to the production

ofhistorical works which examine in detail the gendered nature ofpenality. What is

Oxford University Press, Melbourne, 1995, pp. 126-8; Brian Dickey, "Care for Deprived, Neglected andDelinquent Children in New South Wales, 1901-1915", Journal of the Royal Australian HistoricalSociety, vol. 63, 1977, pp. 167-83; Donella Jaggs, Neglected and Criminal: Foundations ofChild WelfareLegislation in Victoria, Centre for Youth and Community Studies, Phillip Institute of Technology,Melbourne, 1986; Robert van Krieken, Children and the State: Social Control and the Formation ofAustralian Child Welfare, Allen and Unwin, Sydney, 1992; David Maunders, "The Olinda FannReformatory: A Case Study in the Deinstitutionalisation of Nineteenth Century Juvenile Corrections inVictoria", History of Education Review, vol. 21, no. 2, 1992, pp. 20-35; John Rarnsland, '"A Place ofRefuge from Dangerous Influences': Hobart Town Industrial School for Girls, 1862-1945", Journal oftheRoyal Australian Historical Society, vol. 71, part 3,1985, pp. 207-17; and Children of the Backlanes:Destitute and Neglected Children in Colonial New South Wales, New South Wales University Press,Kensington, 1986; John Ramsland and Gregory A. Cartan, "The Gosford Fann Home for Boys, MountPenang, 1912-1940", Journal of the Royal Australian Historical Society, vol. 75, pt 1, 1989, pp. 65-82;Sabine Willis, "Made to be Moral- at PalTamatta Girls' School, 1898-1923", in Jill Roe (ed), TwentiethCentury Sydney: Studies in Urban and Social History, Hale and Iremonger, Sydney, 1980, pp. 178-92;and Kerry Wirnshurst, "Control and Resistance: Refonnatory School Girls in Late Nineteenth CenturySouth Australia", Journal ofSocial History, vol. 18, no. 2, 1984, pp. 272-87.

IO! J. Seymour, Dealing with Young Offenders, Law Book Company Ltd, Sydney, 1988.

102 There have been some small studies of women's imprisonment. For example, John Ramsland's shortarticle, "Dulcie Deamer and the Women's Reformatory, Long Bay", Journal ofInterdisciplinary GenderStudies, vol. 1, no. 1, 1995, pp. 33-40. Kerry Wimshurst has also contributed to our understanding ofwomen's imprisonment in his "Women Prisoners in Queensland in the Interwar Years", paper presented at theHistory of Crime, Policing and Punishment Conference convened by the Australian Institute ofCriminologyin conjunction with the Charles Sturt University and held in Canberra, 9-10 December 1999, pp. 1-21.

103 Howe, Punish and Critique, p. 2.

[ntroduction:UnderSlunding Punislunent in Colonial Settler Societies 34

surprising, however, is the glaring absence of historical work, feminist or otherwise, that

focuses on women's imprisonment in the Australian jurisdictions. 104 The historian is

confronted by an historiography that collectively implies the existence of "universal, non­

gendered penal transformations" in the Australian context, ignoring the possibility that the

punishment ofwomen may have a genealogy somewhat different to that ofmen. 105

It is to be regretted that I am, to a certain extent, perpetuating this pattern ofneglect.

However, the paucity ofprimary source material dealing specifically with women's

imprisonment in colonial Queensland has prevented detailed analysis ofthe sort suggested by

Howe. For an adequate treatment of the gendered nature ofpenality in Queensland, it is

necessary to go beyond the theme of imprisonment to examine more generally the experiences

ofwomen in the criminal justice system and in colonial society itself 106 Such an endeavour

would have taken me well beyond the research base ofthe present study and into other

branches of the criminal justice system, in particular to the imposing collections ofpolice and

justice department records. Time constraints have precluded this type ofwideranging inquiry.

If the nature of the source material in Queensland can be regarded as representative ofthe

other Australian states (but there is no compelling reason to assume that it is), then the

historian interested in the specificities ofwomen's imprisonment should consider the benefits

ofa cross-jurisdictional study that investigates the methods implemented in each penal

system. In any case, a complete history ofwomen's imprisonment in Australia is certainly a

manageable project in itself, and one that is now long overdue.

The punishment of indigenous peoples is another area in which there has been only limited

historical attention, considering the important place ofAboriginal history in Australian

historiography. Hopefully, the recent work ofMark Finnane will inspire other historians to

interrogate further the relationship between race and punishment in the colonial and post-

104 Howe, Punish and Critique, pp. 155-6; and Finnane, "After the Convicts", pp. 108-9.

105 Howe, Punish and Critique, p. 138.

106 Bearing in mind that most theoretical work on punishment has been based on the study ofpenal regimesdesigned for men, Howe has suggested that an appropriate methodology for unearthing the specificities ofwomen's imprisonment may actually require a "crime-and-punishment approach" (Howe, Punish andCritique, pp. 161-3). The particular themes pursued by Judith Allen in her New South Wales-based studyoffer a solid starting point (Sex and Secrets: Crimes Involving Australian Women Since 1880, OxfordUniversity Press, Melbourne, 1990).

Introduction: Understanding Punishment in Colonial Settler Societies 35

colonial context.! 07 The paucity of research has been partially supplemented by numerous

works on the violent dispossession and continued subjugation of Australia's indigenous

peoples - works which necessarily mention aspects of crime and punishment, at least in

passing.108

But there has been no systematic study to date. Most ofthe academic work that

has been produced on the imprisonment of indigenous peoples in Australia has been

concerned with the decades following World War Two and has focussed exclusively on

Aboriginal people. 109 Such study has generally been undertaken by scholars from the legal

and social science disciplines, and historians have been slow to make an equally significant

contribution.

There is, however, an expanding literature addressing the relationship between Aborigines

and the criminal law. This activity has largely been driven by contemporary political

priorities - mainly land rights disputes in the judicial realm and long overdue moves to

incorporate aspects of customary law in the mainstream legal system. It is now mandatory for

this particular category of scholarship to incorporate an historical perspective when addressing

such fundamental contemporary issues as the disproportionately high number of criminal

convictions ofAboriginal people compared to non-Aborigines, assessing rights to native title

over tracts of Crown Land, or when investigating the possibilities ofpromoting legal

107 Mark Firmane, Colonisation and Incarceration: The Criminal Justice System and Aboriginal Australians,Trevor Reece Memorial Lecture, Sir Robert Menzies Centre for Australian Studies, Institute ofCommonwealth Studies, University of London, 1997; Firmane, Punishment in Australian Society; and MarkFirmane and John McGuire, "The Uses of Punishment and Exile: Aborigines in Colonial Australia",Punishment and Society, vol. 3, no. 2, 2001, pp. 279-98. See also Peggy Brock, "ProtectingColonialInterests: Aborigines and Criminal Justice", Journal ofAustralian Studies, no. 53, 1997, pp. 120-9; NevilleGreen and Susan Moon, Far From Home: Aboriginal Prisoners ofRottnest Island, 1838-1931, Dictionary ofWestern Australians, vol. 10, University of Western Australia Press, Nedlands, 1997; Tyler, "Penology on anAustralian Frontier"; Ann McGrath, "Colonialism, Crime and Civilisation", Australian Cultural History, no.12, 1993, pp. 100-14; and McGrath (ed), Contested Ground: Australian Aborigines under the British Crown,Allen and Unwin, St Leonards, 1995, esp. pp. 1-54. The latter text includes much of the historical workundertaken for the Royal Commission into Aboriginal Deaths in Custody (1987-91), but it is disappointing inits failure to include any detailed discussion of the historical relationship between Aboriginal peoples and thecriminal justice system. Thomas and Stewart's history of imprisonment in Western Australia is a rareexample ofearly recognition of the significance of the punishment ofAboriginal people (see Imprisonment inWestern Australia, ch. 6).

108 For recent introductions to this work, see Ann Curthoys and Clive Moore, "Working for the White People:An Historiographic Essay on Aboriginal and Torres Strait Islander Labour", Labour History, no. 69,1995,pp. 1-29; Andrew Markus, Australian Race Relations 1788-1993, Allen & Unwin, Sydney, 1994; andMcGrath, Contested Ground.

109 See especially, Roderic G. Broadhurst, "Imprisomnent of the Aborigine in Western Australia, 1957­1985", in K.M. Hazlehurst (ed), Ivory Scales: Black Australians and the Law, New South Wales UniversityPress, Kensington, 1987, pp. 153-81; and Richard Midford, "Imprisonment: The Aboriginal Experience inWestern Australia", Australian and New Zealand Journal ofCriminology, vol. 21, no. 3,1988, pp. 168-78.

Introduction: Understanding Punislul1ent in Colonial Settler Societies 36

1 1· . h A l' 110P ura ISm III t e ustra Ian context.

It is convenient that the rationale for devoting a chapter of this thesis to the punishment of

non-European offenders is as much supported by current priorities in the academic study of

crime and punishment in contemporary Australia, as it is by the obvious importance of race in

any historical analysis ofpenality in colonial settler states. In Queensland, and the other

Australian states, the continued over-representation of indigenous peoples in the criminal

justice system remains a major concern for politicians, criminal justice system personnel and

the public generally. I11 Historical scholarship has already played an important role in the

identification of the causes that have led to this level ofover-representation.112

Between 1987 and 1991, the Royal Commission into Aboriginal Deaths in Custody

(RCIADIC) was charged with the responsibility of investigating the disproportionate number

of indigenous deaths in custody and recommending possible solutions to the problem. 113

Commissioner L.F. Wyvill, in the Queensland regional report to the national inquiry, argued

that to understand the causes leading to Aboriginal deaths in custody, along with the

disproportionate number of Aboriginal and Torres Strait Islander peoples sentenced to terms

of imprisonment, it is necessary to consider both the history of race relations in Queensland

110 See, for example, Greta Bird, The Civilizing Mission: Race and the Construction ofCrime, MonashUniversity Faculty ofLaw, Melbourne, 1987; Greta Bird, Gary Martin & Jennifer Nielsen (eds), Majah:Indigenous Peoples and the Law, Federation Press, Sydney, 1996; Bryan Keon-Cohen and Peter Hanks(eds), Aborigines and the Law, Allen & Unwin, Sydney, 1984; Elizabeth Eggleston, Fear, Favour orAffection: Aborigines and the Criminal Law in Victoria, South Australia and Western Australia, AustralianNational University Press, Canberra, 1976; Sidney L. Harring, "Australian Social Science, AboriginalPeoples and the Criminal Law", Australian Journal ofLaw and Society, vol. 10, 1994, pp. 67-84; KayleenM. Hazlehurst (ed), Ivory Scales; and Legal Pluralism and the Colonial Legacy: Indigenous Experiences ofJustice in Canada, Australia, and New Zealand, Avebury, Aldershot, 1995.

111 For recent studies of the overrepresentation of indigenous people in custody, see, for example, JohnWalker and David McDonald, "The Over-Representation ofIndigenous People in Custody in Australia",Trends and Issues, no. 47,1995, Australian Institute of Criminology, pp. 1-6; Chris Cunneen and DavidMcDonald, Keeping Aboriginal and Torres Strait Islander People Out ofCustody: An Evaluation oftheImplementation ofthe Recommendations ofthe Royal Commission into Aboriginal Deaths in Custody,ATSIC, Commonwealth ofAustralia, Canbeua, 1996; and Paul Williams, "Deaths in Custody: 10 Years onfrom the Royal Commission", Trends and Issues, no. 203, 2001, Australian Institute ofCriminology, pp. 1-6.

112 Ann McGrath, "Working for the Royal Commission: The History Project of the Royal Commission intoAboriginal Deaths in Custody", Public History Review, vol. 3, 1994, pp. 18-31.

113 For the Queensland contribution to the inquiry see Regional Report ofInquiry in Queensland. RoyalCommission into Aboriginal Deaths in Custody, Australian Government Publishing Service, Canbeua, 1991.The results ofthe national inquiry may be found in National Report. Royal Commission into AboriginalDeaths in Custody, Australian Government Publishing Service, Canberra, 1991 (the historical survey is invol. 2, pp. 1-47).

Introduction: Understanding PUJlislul1ent in Colonial Settler Societies 37

and the general social conditions under which Aboriginal and Islander peoples presently

live. 114 As part of this quest to identify the relevant "underlying causes", the royal

commission considered much evidence relating to the history ofAboriginal-settler relations,

including the former's relationship with the criminal justice system. There was not, however,

particular attention to the involvement ofAborigines in the colonial/state penal system from

the earliest days ofEuropean settlement to the 1960s - no doubt because ofa lack of

accessible secondary work on the subject. Chapter six below addresses this particular aspect

of indigenous criminal justice history, and serves as a corrective to the neglect of the previous

few decades.

Moving away from the study ofpunishment we find that other aspects ofcriminal justice

history have been better served. In the areas ofcrime and policing there have been some

significant contributions. There have been a number of general studies ofcrime in particular

locations along with histories ofparticular crimes and offender populations, including, among

others, the work of Grabosky, Allen and Sturma. t t5 Historical work on policing in Australia

has gone from strength to strength in recent years and there is now a wide range of studies

dealing with numerous aspects ofpolice history and the relations between police, government

and society in general. I 16 The particular history ofnative policing remains an especially well­

developed area that continues to attract attention.! 17 Yet, on the whole, this body ofwork is

114 Regional Report ofInquiry in Queensland, pp. 37-8. As a consequence, three research papers werecommissioned, two ofwhich dealt with the history ofEuropean-Aboriginal relations in Queensland from1840 to 1971. These were Henry Reynolds, "The Aboriginals in Colonial Society, 1840-1897", in RegionalReport ofInquiry in Queensland, Appendix 1(a), pp. 103-22; and Dawn May, "Race Relations inQueensland 1897-1971", in Regional Report ofInquiry in Queensland, Appendix 1(b), pp. 123-70.

115 See, for example, Allen, Sex and Secrets; Susanne Davies, Vagrancy and the Victorians; and '''Ragged,Dirty ... lnfamous and Obscene': The 'Vagrant' in Late-Nineteenth-Century Melbourne", in Philips andDavies, A Nation ofRogues, pp. 141-65; Peter N. Grabosky, Sydney in Ferment: Crime, Dissent and OfficialReaction 1788 to 1973, Australian National University Press, Canberra, 1977; and Michael Sturrna, Vice in aVicious Society: Crime and Convicts in Mid-Nineteenth Century New South Wales, University of QueenslandPress, St Lucia, 1983. See also, the collection ofarticles on criminal justice themes in Philips and Davies(eds), A Nation ofRogues. There are many other works of history that may be included in this tradition.

116 For a comprehensive review of the policing texts, see Mark Finnane, Police and Government: Histories ofPolicing in Australia, Oxford University Press, Melbourne, 1994, pp. 218-25.

117 For histories of the native police in Queensland, see Raymond Evans, Kay Saunders and Kathryn Cronin,Exclusion, Exploitation and Extermination: Race Relations in Colonial Queensland, Australia &NewZealand Book Company, Sydney, 1975, pp. 55-66; Henry Reynolds, With the White People: The CrucialRole ofAborigines in the Exploration and Development ofAustralia, Penguin, Melbourne, 1990, pp. 41-84;Bill Rosser, Up Rode the Troopers: The Black Police in Queensland, University ofQueensland Press, StLucia, 1990; Leslie Edward Skinner, Police ofthe Pastoral Frontier: Native Police 1849-59, University ofQueensland Press, St Lucia, 1975. For Victoria, see also Marie H. Fels, Good Men and True: TheAboriginal Police ofthe Port Phillip District, 1837-53, Melbourne University Press, Melbourne, 1988.

Introduction: Understanding Punislunent in Colonial Settler Societies 38

concentrated on the larger jurisdictions ofNew South Wales and Victoria, with the others

receiving only sporadic treatment.

Queensland lags behind most of the other Australian states in the area of criminal justice

history. This may in part be due to an almost compulsive emphasis on Whiggish themes of

progress, freedom and egalitarianism in Queensland historiography until recent times, and a

blatant disregard for the persistent existence ofless-sanguine themes such as conflict,

discrimination, despoilment and regulation. 118 Prominent in Queensland (and Australian)

history has been the concept of the 'frontier', most commonly deployed in reference to the

advancing boundary of social and economic development in the colony, and also

encompassing the shifting point of displacement for its original inhabitants. Comparatively

little, however, has been written on what may be described as the 'urban frontier', where moral

and immoral, respectable and unrespectable, waged a kind ofwar over the urban environment.

Motivated by an ultimate goal of social defence and very often fired by a missionary zeal, the

moralising agents ofVictorian respectability and the forces of the state were pitted against the

colony's outcasts, who were usually portrayed as the underclass or residuum ofsociety - its

criminals, its sick, its insane, its destitute, and, ofcourse, its racial 'others'. The criminal

justice system, including its institutions ofpunishment, played a fundamental and highly

visible role in mediating these social relations. Raymond Evans' article on Queensland's

"hidden colonists" was a tentative step in redirecting historical scholarship into this

underdeveloped area ofQueensland social history, but there have been few attempts to build

upon his pioneering work119 It is intended that this thesis will contribute towards redressing

this situation and, in so doing, assist in undemlining the persistent mythologies ofrationality,

consensus and progress that have dominated Queensland history.

118 For a discussion of the gradual displacement ofconsensual history in Australian historiography, seeRaymond Evans, "Blood Dries Quickly: Conflict Study and Australian Historiography", Australian JournalofPolitics and History, vol. 41, special issue, 1995, pp. 80-102. For examples ofhistorical texts that haveplayed a constitutive role in the development of a ubiquitous ideology of social and material advancement,see, H.S. Russell, The Genesis ofQueensland, Turner and Henderson, Sydney, 1888; E.J.T. Barton, JubileeHistory ofQueensland: A Record ofPolitical, Industrial, and Social Development, H.I. Diddams, Brisbane,1959; and Raphael Cilento and Clem Lack (comp. and ed.), Triumph in the Tropics: An Historical Sketch ofQueensland, Smith and Patterson, Brisbane, 1959. Rarely do these works even mention the existence ofapost-convict penal system in Queensland. A volume of political history published in 1960 contains just onefootnote in reference to the penal system (see Clem Lack, Three Decades ofQueensland Political History,1929~1960, Government Printer, Brisbane, 1960, p. 529).

119 Evans, "The Hidden Colonists", pp. 74-100.

Introduction: Understanding Punislunent in Colonial Settler Societies 39

It is in more general work assuming a conflict perspective on a variety of social history

themes that criminal justice issues are occasionally addressed. 120 But these histories do not do

justice to the voluminous and largely untouched collections of archival material pertaining to

the criminal justice system that have survived the passage of time and now await careful

scrutiny by the historical researcher. Nevertheless, there is a slowly developing body of

scholarship that may now be considered as constituting Queensland criminal justice history.

Once again, it is the convict period that has been examined in the greatest detail (yet there are

still gaps in the historiography). 121 The early work ofIan Lincoln and Ross Barber did not

give rise to a great postgraduate tradition in the area ofpunishment. Only Libby Connors

1990 study ofpenal history in the pre-separation period can be considered a significant recent

contribution to our understanding ofpost-convict punishment history. 122 There have been a

number of theses produced on the history ofparticular welfare institutions, such as lunatic and

benevolent asylums, reformatories and industrial schools, a variety of charitable institutions

and Aboriginal reserves and missions, but there remain others, especially penal institutions,

that have not yet received detailed treatment. 123 The early 1990s saw the concurrent

publication of a general history of the police and a detailed study of the role ofpolice in

mediating social relations in Queensland, specifically the activities of the working class. 124

120 See, for example, Evans, et al, Race Relations in Colonial Queensland; Stuart Svensen, The Shearers'War: the Story ofthe 1891 Shearers' Strike, University of Queensland Press, 8t Lucia, 1989; and Thorpe, ASocial History ofQueensland, ch. 5.

121 For a discussion of the literature, see Tamsin O'Connor, "A Zone of Silence: Queensland's Convicts andthe Historiography of Moreton Bay", in Ian Duffield and James Bradley, Representing Convicts: NewPerspectives on Convict Forced Labour Migration, Leicester University Press, London, 1997, pp. 124-41.See also Raymond Evans and William Thorpe, "Power, Punishment and Penal Labour: Convict Workers andMoreton Bay", Australian Historical Studies, vol. 25, no. 98, 1992, pp. 90-111.

122 Connors, The 'Birth of the Prison' and the Death ofConvictism, chs 2-3. The specific references toQueensland in Mark Finnane's Punishment in Australian Society have also helped to further our knowledgeof the post-separation period.

123 See, for example, Evans, Charitable Institutions; Laraine Goldman, Child Welfare in Nineteenth CenturyQueensland, 1865-1911, BA Hons thesis, Department ofHistory, University ofQueensland, 1978; Joseph B.Goodall, Whom Nobody Owns: The Dunwich Benevolent Asylum, an Institutional Biography, 1866-1946,PhD thesis, Department of History, University of Queensland, 1992; Schofield, State Child Care inQueensland. For examples of theses that examine Aboriginal institutions, see chapter six below.

124 W. Ross Johnston, The Long Blue Line: A History ofthe Queensland Police, Boolarong, Brisbane, 1992;and Finnane and Garton, "The Work ofPolicing in Queensland", Parts 1 and 2. See also Mark Finnane'searlier work on Queensland, "Police Rules and the Organisation of Policing in Queensland, 1905-16",Australian and New Zealand Journal ofCriminology, vol. 22, 1989, pp. 95-108; and "The Varieties ofPolicing: Colonial Queensland, 1860-1900", in David M. Anderson and David Killingray (eds), Policing theEmpire: Government, Authority and Control, 1830-1940, Manchester University Press, Manchester, 1991,pp. 33-51. See also Margaret Kowald, The Queensland Police Force 1895-1910, MA thesis, University ofQueensland, 1989.

Introduction: Understanding PunisJunent in Colonial Settler Societies 40

There has been some attention paid to the operations ofthe criminal law and judicial system

but, despite the early work of Ross Johnston, this remains the most underdone theme in the

historiography.125 In the area of specific offences there have been some important

contributions since Ross Barber's early work on rape and other sexual offences. 126 The

literature now encompasses a range of offence categories, such as domestic violence,

prostitution, murder, and rape. 127 But even here, there remains much work yet to be

attempted.

The above discussion has surveyed the theoretical work in the history and sociology of

punishment that has influenced the following chapters, arguing for a synthetic approach to the

study ofpunishment in colonial societies that pragmatically deploys explanatory perspectives

from a range of theoretical traditions. It has also reviewed the substantial body of empirical

scholarship in the broad area ofpunishment studies in colonial settler societies, and located

the present study within the developing tradition ofAustralian criminal justice history as one

of the few to provide a detailed jurisdictional history ofpunishment in post-convict Australia.

The chapters that follow will explore the nature ofpenal change in colonial settler society by

focusing on the history ofpunishment in colonial and early post-colonial Queensland.

125 W. Ross Jolmston, A Study ofthe Relationship Between the Law, the State and the Community inColonial Queensland, MA thesis, Department ofHistory, University ofQueensland, 1965; W. Ross Jolmston,"The Growth of the Lower Courts", Queensland Heritage, vol. 3, no. 9, 1978, pp. 14-17; W. Ross Jolmston,History ofthe Queensland Bar, Bar Association of Queensland, Brisbane, 1978; and B.H. McPherson, TheSupreme Court ofQueensland 1859-1960: History Jurisdiction Procedure, Butterworths, Sydney, 1989. Seealso, Mark Finnane, "Penality and Policy: Griffith and the Limits of Law Refonn in Colonial Queensland",Australian Cultural History, vol. 8, 1989, pp. 84-97. On the pre-separation period, see Connors, The 'Birthof the Prison' and the Death ofConvictism, cbs 6-7.

126 Ross Noel Barber, Rape and Other Sexual Offences in Queensland: An Historical and BehaviouralAnalysis, MA thesis, Department of Government, University of Queensland, 1970 (in particular, see sectionI).

127 See, for example, Kay Saunders, "The Study ofDomestic Violence in Colonial Queensland: Sources andProblems", Historical Studies, vol. 21, no. 82, 1984, pp. 68-84; Raymond Evans, "'Soiled Doves':Prostitution in Colonial Queensland", in Kay Daniels (ed.), So Much Hard Work: Women and Prostitution inAustralian History, Fontana/Collins, Sydney, 1984, pp. 127-61; Gary Highland, "A Tangle ofParadoxes:Race, Justice and Criminal Law in North Queensland, 1882-1894", in Philips and Davies (eds), A Nation ofRogues, pp. 123-40; and Anne-Maree Collins, "Testimonies ofSex: Rape in Queensland, 1880-1919",Journal ofAustralian Studies, no. 29, 1991, pp. 50-63.

Introduction: Understanding Punishment in Colonial Settler Societies 41

Structure

The thesis is divided into two parts. The first, chapters one and two, is a chronological

analysis of the historical development of Queensland's penal apparatus from 1859 to the

1930s. The absence ofa general history ofpunishment makes it necessary to delineate the

broad contours ofpenal change in this period, providing an essential background to a thematic

analysis. The second part, chapters three to seven, is an analysis of some key themes in the

history ofpunishment in Queensland.

Chapter one is divided into three sections. The first examines the early development ofthe

penal system during the 1860s, including the enduring influence ofBritish penality and the

two important select committees appointed to inquire into local penal affairs. The middle

section then discusses subsequent developments in the penal system between about 1870 and

the mid-1880s. The final section examines the movement to reform what was by then an

outdated penal system, concentrating on the 1887 board of inquiry into penal affairs and, to a

lesser extent, the introduction ofprobation.

Once again, chapter two is divided into three sections. The first assesses the outcomes of the

movement for penal reform in the late 1880s and early 1890s. The second examines the

changes that took place in the penal realm around the tum ofthe century, dealing in particular

with the impact ofnew liberalism and social democracy in the Australian political domain,

the development of the discipline ofcriminology overseas, and the influence ofpositivist

criminology in Australia and Queensland. The final section surveys the penal strategies

introduced in this period and some important reforms in the area of criminal justice

administration.

Chapter three attempts to reconstruct the actual experience of imprisonment in the period

under analysis. It has been organised around a number of central themes which provide an

insight into the material conditions and interpersonal relationships that characterised life in

Queensland's penal institutions. The regimentation ofprison life is discussed with reference

to the daily routine of the prisoners and the work regime designed to exploit their labour and

instil in them habits of industry. The physical conditions experienced by the inmates are also

addressed early in this chapter. The relationship between the warders and the inmates is then

discussed. The chapter then concludes with an examination of inmate resistance and the

Introduction:Undcrstanding Punislunent in Colonial Settler Societies 42

prison punishments employed to maintain discipline.

Chapter four examines the late nineteenth century differentiation in penal strategies aimed at

dealing with the problems of young and female offenders. The early sections chart the

development of the reformatory and industrial school movement in Queensland, highlighting

the different institutional strategies that were mobilised to deal with the problem of offending

youths. The latter sections examine the gendered nature ofpenality in colonial Queensland,

focusing on the specific strategies deployed in the process ofpunishing women offenders, and

discussing the alternative experiences of female inmates in the penal system.

Chapter five examines the demise ofphysical punishments in Queensland. It begins with an

analysis of the impact of race upon the transition from public to private executions in colonial

Queensland. It then examines the history of corporal punishment, focussing on the flogging

ofjuvenile delinquents. The chapter concludes with a discussion of the complete privatisation

ofphysical punishments.

Following on from the analysis ofcapital punishment, chapter six looks at the distinctive

penal practices employed for the punishment ofAboriginal and Islander offenders. The first

section considers contemporary opinions ofhow Aborigines should be punished. The second

discusses the prison experience ofnon-European criminals, highlighting the informal methods

for segregating them from the bulk ofthe prison population. The third looks at the

punishment of Islanders, focussing in particular on the search for an appropriate mode of

punishment for Islander offenders that would assist in the successful maintenance of the

plantation economy. The final section looks at the punishment ofAborigines at the beginning

of the era of 'protection'.

Chapter seven begins with an examination of the transition from penal to productive labour.

The second section assesses the importance of the 8t Helena experiment in establishing the

principles of a self-sufficient penal system. The third examines the effort made at reforming

offenders, arguing that this role was essentially left to impecunious non-state agencies (and

consequently remained a grossly neglected area ofprison administration). The fourth section

returns to the history of8t Helena; this time focussing on its protracted demise, and arguing

that its longevity (1866-1934) was due to its importance as a productive unit within the penal

system as a whole. Finally, I briefly examine the advent ofa new strategy in the provision of

Introduction: Understanding Punislunent in Colonial Settler Societies 43

punishment - the prison farm.

Part A

The Historical Development of

Queensland's Penal Apparatus

('hapter 1:Deterrence or Rdi:mnation? 44

Chapter 1

Deterrence or Reformation? Establishing Punishment in the Classical

Mode, 1859-1890

It was suggested in the introduction that this thesis is concerned with the third phase ofpenal

history in Queensland. With the vestiges of convictism increasingly diluted in its social and

material landscape, the immediate goal of the now self-governing colony was to embark upon

a new phase in which the ideals of mid-Victorian penality were to continue to be grafted onto

its emerging criminal justice system. The agenda had been set in the mother country where

rationality had become the cornerstone ofcriminal justice policy and administration. The

discourse on penality that prevailed at this time possessed a number ofdistinguishing

characteristics. Doctrines offree-wi11 and individual responsibility comprised the basis of the

criminal law, and offenders were perceived as rational-thinking agents, capable of exercising

judgement in assessing the consequences of a criminal act against the benefits to be accrued

from committing the crime. Punishment was therefore calculated to· be in proportion to the

gravity of the offence. There was also to be predictability in the way punishment was

allocated and uniformity in the way it was dispensed, a uniformity which blended motives of

deterrence and reform - though the objective of reformation was always subsidiary to

deterrence.! By the middle of the nineteenth century classical penality also incorporated a

trend away from the brutal infliction ofphysical pain on offenders and a gradual movement

towards the privatisation ofpenal sanctions - the prison had replaced the gallows as the

emblem ofpunishment. And within the prison, the severity ofpunishment was to be

regulated through separation and hard labour, the so-caned "hard work, hard fare and hard

bed".2 With these features as the benchmark, Queensland's penal administrators sought to

replicate mid-Victorian penal policy and practice in the new society.

This chapter begins with an examination of the early development of the penal system in

Queensland. During the 1860s, two important select committees were appointed to inquire

into penal affairs in the colony. The findings and recommendations of these inquiries

demonstrate how the enduring influence of British penology quickly diminished as the

1 Weiner, Reconstructing the Criminal, p. 122; and Garland, Punishment and Welfare, p. 26.

2 The phrase was coined by Joshua Jebb, Director ofConvict Prisons (see Garland, Punishment and Welfare,p. B).

Chapter 1:Deterrencc Of Refornlatjon? 45

fledgling colonial state developed its own penal priorities to suit local circumstances. These

priorities were implemented as the colony's penal apparatus was expanded in an attempt to

keep pace with population growth and the spread of settlement. Throughout the 1860s and

1870s, the capital works programme struggled to accommodate the demand for cell space,

and the main penal institutions remained in an almost constant state ofovercrowding. By the

mid-1880s the penal system was in crisis, and the initiation ofa programme ofreform seemed

inevitable. The government subsequently established a Board ofInquiry to undertake a

comprehensive examination of the state of the penal system in the colony. Its final report

highlighted numerous deficiencies on the provision ofpunishment in the colony, illustrating

the wide gap between the ideals ofmid-Victorian penal policy and the practices of the

Queensland colonial state.

Establishing a Penal System

When the colony ofQueensland was separated from New South Wales on 10 December 1859

it was virtually free ofany edifice for the detention of criminals. There were a number of

surviving relics from the convict era, and a few small gaols that had been built in the two

decades of free settlement, but only the small and insecure Female Factory continued to be

used for the incarceration oflarge numbers ofprisoners.3 The government was soon to

remedy this situation, however, by following European and north American precedent and

hurriedly investing in institutions ofconfinement as fundamental elements of its nascent

criminal justice apparatus. It began with a commitment to complete the new gaol that had

been under construction since late in 1858.4 The new structure was eventually opened in

September 1860 - the largest building in the colony, with a maximum single cell capacity of

144 (although ea9h cell was barely one third of the size recommended for prisons in cool

climates).5 Its new location was at a distance from the town centre (although it would not be

3 The Female Factory (located in Queen Street) had been converted in 1847 to act as a temporary prison.Throughout the next decade it was frequently criticised as being inadequate to meet the demands of theexpanding region. It could accommodate a maximum offorty-four prisoners, but almost all of these had tobe confmed in association. For details of its poor condition and frequent periods of overcrowding, seeMoreton Bay Courier, 4 & 25 April; and 5 & 12 December 1857; and 8 September 1858. For a discussion,see Connors, The 'Birth of the Prison' and the Death of Convictism, pp. 55-6 and 65-9.

4 For a discussion of the decision to construct a new gaol, see Connors, The 'Birth of the Prison' and theDeath ofConvictism, pp. 95-100.

5 Queensland Government Gazette (hereafter QGG), no. 57, 22 September 1860, p. 318. See also DimityDornan and Denis Cryle, The Petrie Family: Building Colonial Brisbane, University of Queensland Press, St

Chapter 1:Deterrence or Ref<mnation? 46

long before settlement extended well beyond its boundaries) but remained in a position of

clear visibility atop a nearby ridge that later became known as Petrie Terrace. The new gaol

marked a final departure from the era of transportation and heralded a new direction in

colonial penality.6

An indicator of the rising concern about crime in the fledgling colonial settlements was the

contest between certain Toowoomba and Ipswich residents to have a new gaol erected in their

respective locales.? Eventually the Toowoomba petition was successful and a gaol was

opened there in 1864.8 During the same year, another gaol was proclaimed in Rockhampton

to replace its ageing lockup.9 At this time the authorities also compiled rules and regulations

for the management ofthe penal system, and embarked upon the important project of

consolidating the criminal law in force in Queensland. 10 This latter task simply involved the

appropriation ofthe relevant New South Wales statutes for application in the new colony,

affirming the essentially derivative nature ofQueensland's criminal justice system. It also

confirmed the transition from transportation to imprisonment as the appropriate punishment

for serious crime.

Almost immediately, Brisbane Gaol began to suffer from the perennial problem of

overcrowding, forcing the authorities to utilise the Water Police hulk, Proserpine, for the

Lucia, 1992, pp. 120-1. On cell sizes, see "Statistical Register ofQueensland for the year 1861 ", QueenslandVotes and Proceedings (hereafter QVP), 1862, pp. 253-4.

6 On the remnants of the convict period and the two decades before Separation, see esp. Connors, The 'Birthof the Prison' and the Death ofConvictism. For a complete list ofQueensland's senior penal administratorsand principal penal institutions, see Appendices 1-2.

7 For the Toowoomba petition, see J. Taylor and J. Watts to Col Sec, 15 October 1861, and petition ofToowoomba residents to Col Sec, 23 September 1861, QSA COLlA25 [0479]; and for Ipswich, see petitionofIpswich residents to Col Sec, 22 December 1862, QSA COLlA35 [3008]. See also ChiefClerk, ColonialArchitect's Office, to Principal Under Secretary, 11 February 1862, QSA COLlA26 [0501]. Earlier, therehad been some competition between Ipswich and Brisbane to be selected as the site for the construction ofanew gaol and court house for the colony (see Connors, The 'Birth of the Prison' and the Death ofConvictism,p.96).

8 QGG, vol. 5, no. 54, 28 June 1864, p. 419 and QVP, 1864, pp. 35 and 147.

9 QGG, vol. 5, no. 28, 29 March 1864, p. 231. Due to the steadily increasing number of offenders in thenorth, the lockup had been proclaimed a public prison in the previous year (QGG, vol. 4, no. 131, 28November 1863, p. 1011).

10 "Rules and Regulations for the Management ofRer Majesty's Gaols in Queensland", 13 April 1864, QSACOLlA53 [1148].

Chapter 1:Deterrence O[ Ref<mnatiou? 47

detention ofsurplus male inmates. ll In mid-1863, the gaol was so overcrowded, with 166

males and 15 females, that prisoner classification was impossible to maintain and an outbreak

ofdisease threatened. 12 Even with the removal of the lunatics to their own institution at

Woogaroo in January 1865, the situation continued to worsen. l3 By 1867, these and other

problems had become enough ofa concern for the government to appoint a select committee

to inquire into the state of the penal system as a whole. 14

The committee's main briefwas to investigate four principal issues: whether the

accommodation was sufficient to allow for the appropriate classification and strict discipline

of the inmates; whether the hard labour prisoners were actually being required to perform

sufficiently hard work ofremunerative value to the state; whether it would be possible to

utilise prison labour to a greater extent; and finally, whether reformation could be encouraged

by implementing a system ofpartial remission of sentence for good conduct with a small

gratuity to be paid upon release. 15 Fifteen witnesses were examined by the committee, and a

few recurring criticisms emerged from their testimonies. 16 The appalling lack of

accommodation and almost negligible attempts at classification were the most frequently

expressed deficiencies. In fact, the Colonial Architect, Charles Tiffin, was asked to submit a

special report with his suggestions for remedying this problem. I? The back-to-back cell

design at Brisbane Gaol, which retarded adequate ventilation and allowed communication

between the inmates, came in for as much criticism as the designs of the smaller gaols where

I I The hulk was proclaimed a public prison in 1864 and was continually used for this purpose until early in1867 (QGG, vol. 5, no. 38, 30 Apri11864, p. 285).

12 See, for example, Sheriff to Col Sec, 17 November 1862, QSA COLlA34 [2703]; and Sheriff to Col Sec,17 July 1863, QSA COLlA42 [1595].

13 The mentally ill were not removed to facilitate a more progressive regime of medical treatment, butbecause of the overcrowding in the gaol and the realisation that Queensland was well behind other colonialdominions in that it had not established a separate facility for the reception and treatment ofpeople deemed tobe of unsound mind (see Evans, Charitable Institutions, ch. 2, pt 1, esp. pp. 37-40; and Evans, "The HiddenColonists", pp. 81-2). The Woogaroo Lunatic Asylum was located midway between Brisbane and Ipswich.

14 Lincoln, The Punishment of Crime in Queensland, pp. 53-6.

IS "Report of the Select Committee on Prison Discipline" (hereafter SCPD), QVP, 1868, p. 1091. For adetailed summary of the committee's deliberations and fmal report, see Lincoln, The Punishment ofCrime inQueensland, pp. 56-69.

16 These included the Sheriff, Arthur Halloran, the principal officers administering the prisons at Brisbane,Toowoomba and St Helena, and a couple ofothers with experience ofpenal institutions in Britain.

17 SCPD, Appendix L, pp. 1152-4.

Chapter 1:Deterrence or Refonnation? 48

the inmate populations were perpetually herded in association. There was also general

agreement that prison sentences should be made more severe, and that a gratuity system,

regular religious attendance and basic schooling all needed to be introduced. The committee's

report emphasised the need for rectifying each problem and included suggestions for

achieving this goal. Its recommendations were immediately embodied in new regulations

introduced in July 1868.18

The report was well received in parliament, where debate was kept to a minimum and where

there prevailed an optimistic belief that all problems would be solved in the near future. 19

Echoing the hopes of the committee, there was general confidence that the introduction of

profitable labour would contribute towards reducing the costs ofmaintaining the penal system

as well as assist in the reformation of the prisoners. The colony's premier newspaper, the

Brisbane Courier, also recognised the importance ofmaking prison labour as remunerative as

possible. In its editorial on the committee's report it was extremely critical ofthe deficiencies

in construction, the poor classification, and the absence ofhospitals and workshops in each

prison. It was also quite sure of the appropriate cure:

Each one of these evils seems capable of remedy, and the committee appear tohave a very good idea of how they might be cured; but there is one thing wantingwhich is indispensable in nearly every instance, to any attempt to carry outthorough reforms in our prison discipline - and that we have not - namely, money.To have better classification we must have money to construct new buildings, orto make extensive additions to the old ones; to punish with actual hard labourthere must be more space at the disposal of the prison authorities, and morewarders to guard the criminals; to help to reform them by giving them bookknowledge, or a knowledge ofthe mechanical arts, we must have schools andworkshops and people to superintend them; and there again want ofmoney is thegrand difficulty?O

The article then went on to approve ofmaking the best ofprison labour. The implication was

that the state was unable to invest more of its revenue in making improvements to its

disciplinary infrastructure. Residual memories of the financial crisis of 1866 ensured that

capital works would be kept to a minimum until prosperity had definitely returned to the

colony and the Consolidated Revenue Fund was in a healthier position.

18 QGG, vol. 9, no. 74,29 July 1868, pp. 851-62.

19 See Queensland Parliamentary Debates (hereafter QPD), vol. 6, 6 February 1868, pp. 944-8; and 21February 1868, pp. 1027-8.

20 Brisbane Courier, 7 February 1868.

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1: Deterrence or Ref()nnation? 51

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1:Deterwnce or Rd<mnatiou? 52

While the inquiry provoked a great deal of interest in both parliament and the colonial press, it

was not to remain a document solely for the edification ofconcerned locals. The government

also thought it prudent to submit a copy to the imperial authorities in response to an 1865

request from the Secretary of State for the Colonies for information concerning prison

discipline in each of Britain's colonial dominions. Briefdetails had already been sent for

inclusion in a "Digest and Summary" that had been prepared for both houses ofparliament in

1867, and were then forwarded to each colonial government to facilitate further

investigation.21 The reason for this imperial interest in the colonial penal systems stemmed

from the work of the Lords' Committee on Gaol Discipline (known as the Carnarvon

Committee), appointed in 1863 to investigate the state ofdiscipline in Britain's local prisons ­

repeatedly condemned for their variation in regime and conditions. A desire to impose greater

uniformity across all of Britain's penal institutions lay at the heart of the inquiry and no doubt

prompted the authorities to extend their influence abroad to the colonial penal systems?2

Similar concerns had prompted the New South Wales government to appoint in 1857 a Select

Committee on Secondary Punishments to investigate the problem ofprison discipline, but its

conclusions were soon to be superseded by the significant shift in policy in the mother23country.

The year 1863 witnessed a watershed in the area ofpenal policy in Britain. The royal

commission into transportation and penal servitude joined the Lords' Committee in rejecting

the emphasis on reformation that had characterised British penality for the previous two

decades. The new emphasis, soon to be codified in the 1865 Prison Act, was to be upon

greater severity in the treatment ofprisoners. Concern about the failure of the prison to

reform inmates, the problem of absorbing the large number ofhard labour prisoners generated

by the virtual cessation of transportation to Australia in 1852, and dissatisfaction with the

ticket ofleave system following the much publicised garotting panic of 1862, were the main

factors that led to a renewed emphasis on deterrence as the most important goal ofprison

21 "Prison Discipline in the Colonies. Digest and Summary ofInfonnation Respecting Prisons in theColonies", Great Britain, Parliamentary Papers (hereafter GBPP), vol. 57, 1867-8, pp. 592 & 617. Thedocument was referred to in the proceedings of the 1867 select committee (see SCPD, pp. 1117 & 1132)

22 See, for example, McConville, History ofEnglish Prison Administration, pp. 347-80; and English LocalPrisons, chs 1-3, esp. pp. 121-3; and Randall McGowen, "The Well-Ordered Prison: England, 1780-1865",in Norval Morris and David J. Rothman (eds), Oxford History ofthe Prison: The Practice ofPunishment inWestern Society, Oxford University Press, OXford, 1995, pp. 103-5.

23 A Board ofPrison Discipline had also reported in 1855.

Cbapter 1:Deterrence Of Rcf<mnatiou? 53

discipline.24 In its determination to implement a more austere approach, the Lords'

Committee identified two fundamental principles of effective prison management - the

separate system and penal labour.

The separate system had been the cornerstone of prison design since the construction of

Pentonville Model Prison in north London in 1842. Based on the idea that isolation,

combined with religious instruction, would lead to the moral reformation of the prisoner, the

separate system required that prisons be constructed on a cellular plan in which each cell

contained the facilities for an inmate to eat, sleep and work without any contact with fellow

prisoners. It is customary to contrast this form ofprison discipline with the silent system, in

which prisoners were separated at night but made to work silently in association during the

day, although both should be seen as merely two alternatives in a continuum ofdisciplinary

options ranging from absolute solitary confinement to unencumbered congregation.25 It was

not uncommon for penal administrators to employ a combination of the two systems.

The separate system was adopted in Britain after a relentless campaign waged by a group of

evangelical philanthropists under the guidance ofWilliam Crawford and Whitworth Russel1.26

With the ascendancy ofMajor Joshua Jebb (architect ofPentonville) to the specially-created

post ofSurveyor-General in 1844 and his 1850 appointment to the Directorate ofConvict

Prisons, the separate system found one of its most important advocates. More ofa pragmatist

than a reforming zealot, however, he was careful to avoid any extreme application of its

principles.27 Consequently, the enforcement of separation in Britain's convict and local

24 See, for example, Jennifer Davis, "The London Garotting Panic of 1862: A Moral Panic and the Creationofa Criminal Class in mid-Victorian England", in V.AC. Gatrell, Bruce Lenrnan and Geoffrey Parker (eds),Crime and the Law: The Social History o/Crime in Western Europe since 1500, Europa, London, 1980, esp.pp. 192-8; D.R.Q. Henriques, "The Rise and Decline of the Separate System ofPrison Discipline", Past andPresent, no. 54, 1972, pp. 84-9; Ignatieff, A Just Measure 0/Pain, pp. 200-4; and McGowen, "The Well­Ordered Prison", pp. 101-5.

25 The accomplished student ofpenology, William Tallack, was also aware of the major variations in the wayprison discipline was implemented around the world during the nineteenth century (see Penological andPreventive Principles, Wertheimer, Lea and Co, London, 1896, pp. 118-22).

26 Crawford had travelled to America in the early 1830s to assess each system at its place of origin. Heviewed the separate system in operation at WaInut Street Prison in Philadelphia, and also inspected the silentsystem at Auburn Penitentiary in New York. The silent system was rejected chiefly because of its extrastaffmg costs and the lack ofuniforrnity necessarily created by the discretion of the governor in selectingpunishments for inmates who breached the rule of silence. See, for example, Hemiques, "The Rise andDecline of the Separate System", pp. 74-8; Ignatieff, A Just Measure o/Pain, pp. 193-7; and McConville, AHistory 0/English Prison Administration, pp. 243-7.

27 McGowen, "The Well-Ordered Prison", p. 102.

Chapter 1:Deterrence or Refonnation? 54

prisons gradually eased to the point where some prisoners merely endured a few months of

separate confinement before being employed on public works activities.28 With Jebb's death

in 1863, the way was clear for the Carnarvon Committee to promote a more stringent

application of the separate system. Its members were impressed at the extent to which

separation was loathed by the majority ofprisoners and they became convinced of its punitive

potential. Consequently, the concept of reformative separation was to be discarded and

replaced by a harsher penal separation, in which the goal of reformation was subordinate to

the ideal ofdeterrence.

The Carnarvon Committee considered the imposition of penal labour as the second most

important means for increasing the deterrent effect of imprisonment. Arguing that a major

obstacle to the uniform application ofprison discipline was the varying interpretations ofwhat

constituted hard labour, it sought to provide clarification by identifying the appropriate

techniques for employing prisoners. In doing so, the commissioners advocated the use of the

treadwheel and the crank, or, if these were unavailable, shot drill.29 Regardless of its

remunerative potential, productive labour was not to be preferred over penal labour for

prisoners in the early stages of their sentences, or for those serving only short terms:

Industrial occupation, though it may vary in amount and character, is so muchless penal, irksome, and fatiguing, that it can only be classed under the head oflight labour. The picking of oakum must be regarded as an intermediate form ofwork; but under no circumstances, and to no class ofprisoners, can industrialoccupation be made an equivalent for a corresponding amount ofhard labour asadministered by means of the wheel, the crank, or the shot-drill?O

28 McConville, A History ofEnglish Prison Administration, p. 406.

29 These three fonns ofpenal labour were characterised by their regimentation, irksomeness and sheeruselessness. The treadwheel consisted of a large revolving cylinder with steps on it to enable prisoners tomake it turn with their feet, whilst clinging to a bar overhead. Occasionally wheels were set up for someuseful purpose, such as grinding grain or pumping water, but usually they did nothing but continuouslyoccupy prisoners (see Ignatieff, A Just Measure ofPain, p. 177). Similarly, labour at the crank involvedprisoners using their hands to turn a handle which lifted weights. By turning a screw, the resistance could beincreased. Each device had a counter to assess prisoner activity. Shot drill involved a nwnber of prisonersrepeatedly being forced to lift, carry and arrange on the ground heavy cannon balls for over an hour at a time.The only objective in such work was exhausting the inmates and making their tenn of imprisonment asunbearable as possible. After witnessing prisoners employed at shot drill, Henry Mayhew was unable to"imagine anything more ingeniously useless than this fonn ofhard labour" (see Henry Mayhew and JohnBinney, The Criminal Prisons ofLondon and Scenes ofPrison Life, Frank Cass, London, 1968, pp. 308-10).For details of the shot drill employed in Queensland, see the rules and regulations in QGG, vol. 9, no. 74,29July 1868, p. 858.

30 "Report from the Select Committee of the House of Lords on the Present State of Discipline in Gaols andHouses of Correction", BGPP, vol. 9, 1863, p. vii. Oakum was the loose fibre obtained from picking apartold rope. It was usually used in caulking.

Chapter 1:Deterrence or Refc)l'llJation'? 55

The Lords remained unmoved by the frequently expressed allegation that penal labour

"degrades, irritates, and demoralises the prisoner". With deterrence as their primary objective,

they paid little attention to appeals on behalf of the welfare of inmates.31

The findings of the Carnarvon Committee were reflective ofa new emphasis on the principle

oftless-eligibility' that had found application in the workhouse system of the 1830s but was

immediately applied more generally to other state-administered penal and welfare institutions.

A classic formulation ofutilitarian ideology, the principle emerged from the deliberations of

the Benthamite-dominated Royal Commission on the Poor Laws in 1832-34. It stipulated that

the living conditions in the workhouse were to be less-eligible than those of the poorest

independent labourer, thus discouraging undeserving cases from applying for admission.32It

followed that the conditions of imprisonment were to be more severe than the living

conditions experienced by the poorest law-abiding citizen, including those resident in the

workhouse. Only by enforcing the appropriate degree ofausterity, it was argued, could the

punishment of imprisonment remain a realistic deterrent to offending.

After having conveyed the importance of separation and penal labour to the Queensland

government in the despatches of 1863, and again in the Secretary of State's 1865 request for

information, the Colonial Office would have been less than impressed by the findings ofthe

colony's select committee. Its displeasure was clearly communicated to Governor Blackall

late in 1868.33 In short, it was considered that the Queensland system was too lenient in that

its dietary scale was too generous, the prisoners were allowed too much sleep, they were able

to profit from their employment and spend their earnings on luxuries, and they were not

31 See McConville, A History ofEnglish Prison Administration, pp. 349-51. It should be noted that theCarnarvon Committee's advocacy ofpena11abour did not pass uncontested. A handful ofcommentators inthe 1860s continued to profess their faith in the benefits of productive labour. See, for example, Anon.,"Remunerative Prison Labour", Once a Week, vol. 12,27 May 1865, pp. 639-41; R. Arthur Arnold, "PrisonLabour", Fraser's Magazine, vol. 78, December 1868, pp. 769-76; and John Bowring, "On the Influence ofProfitable Prison Labour upon the Reformation of Crirninals", Theological Review, vol. 5, 1868, pp. 415-40.

32 See, for example, Trevor May, An Economic and Social History ofBritain, 1760-1970, Harlow, Longman,1987, p. 122. On the application of the principle in nineteenth century British penal administration, seeMcConville, A History ofEnglish Prison Administration, pp. 238-41 and 354-6.

33 D~e ofBuckingham and Chandos to Governor Blackall, 14 October 1868, in "Further Correspondencerespecting the Discipline and Management ofPrisons in Her Majesty's Colonial Possessions", GBPP, vol. 57,1867-8, pp. 792-3. The despatch is reprinted in QVP, 1868-9, pp. 263-4.

Chapter 1:Dcterrcl1ce or Rd'onnation'? 56

compelled to perform sufficient work.34 Structurally, the cells were too small, there were no

permanent baths or lavatories, and a hospital and better schoolroom were required. It was

suggested that the dietary scales should be made more meagre and plain to increase their

deterrent effect, and that an appropriate gratuity system be implemented whereby the

prisoners would forfeit a portion of their earnings for any misconduct.

None of these criticisms would have greatly surprised the Queensland government (the select

committee had already concluded as much), but the despatch also included two important

messages. First, the lack ofpenal labour in force in the gaols of the colony provoked a

trenchant response:

The experience of England is that no form of industrial labour is so deterrent aswhat is called "strictly penal labour" - that is, labour by tread-wheel, crank, orshot drill - and that it is a short-sighted economy to sacrifice such penal efficacyas can only be obtained by means ofpenal labour to considerations of immediateprofit. The produce of prisoners' labour can never be made to cover the cost ofmaintaining them. ... It is considered in this country that prisoners sentencedfor short terms, and those working out the earlier stages oflong.ones, may best beemployed exclusively at penal labour. In the later stages oflong sentencesindustrial employment may properly take the place of penal labour, thoseemployments being selected which require least instruction, are most severe, andcan be done by task. Stone-breaking fulfils these conditions, and in Queenslandit appears it would be a highly remunerative form ofemployment.35

The second message consisted ofa brief reminder regarding the importance of enforcing

separation: "As Brisbane Gaol is built to admit ofthe separate system, I presume that the

advantages of that system are appreciated in Queensland, and that provision will be made in

any prisons which may hereafter be built for individual separation".36

Despite important evidence heard during the 1867 select committee in support of these harsh

measures, the Queensland government set about structuring its penal system in opposition to

the recommendations of the imperial authorities.3? The 1868 prison regulations made it

34 See also Part 1 of the Digest and Sunnnary, which describes the state of the colonial prisons, for otherdetails of the condition of the Brisbane and Rockhampton Gaols (GBPP, vol. 57, 1867-8, p. 617).

35 Duke ofBuckingham and Chandos to Governor B1ackall, 14 October 1868, GBPP, vol. 57, 1867-8, p.793.

36 Duke ofBuckingham and Chandos to Governor Blackall, 14 October 1868, GBPP, vol. 57, 1867-8, p.793.

37 See the testimony of Frederick William Hill, formerly governor of the Middlesex House ofDetention and

Chapter 1:Deterrence or Ref<Jrlnution? 57

possible for gaolers to subordinate the goal of effective classification to the goal of

productivity:

Prisoners shall be classified... ; and the several classes shall, so far as theconstruction of the building and the necessities of the works and trades willadmit, be kept apart. But any prisoner may, for special reasons, to be reported ineach case to the Sheriff, be associated with a class other than his own.38

Shoemaking was continued as the main occupation for about forty prisoners not employed on

public works outside Brisbane Gaol and, in 1869, a turnkey was appointed as full-time trade

instructor in the shoemakers' shop.39 Later that year, the Sheriff successfully petitioned the

Colonial Secretary for the appointment ofanother trade instructor to establish a tailors' shop in

the gao1.40 Soon after, a saddlers' shop, tin shop and carpenters' shop were established, and

some bookbinding and repair work was carried out. So successful were the various

enterprises that, in 1877, the Sheriff and Inspector of Prisons, Arthur Halloran, vented his

dissatisfaction at the failure of the government to provide sufficient materials to keep the

prisoners constantly at work: "This is very discouraging, for I am doing all in my power to

press on the industries carried out in the Gaol, and to make that Establishment as nearly as

possible, self-supporting" .41 This desire for remunerative labour was epitomised in the

decision of the authorities not to erect a tread-wheel or crank in any of the colony's gaols.42

But colonial variation from imperial doctrine did not end with Brisbane Gaol's remunerative

industries. It was at the convict establishment on St Helena island, in its infancy at the time of

the select committee, that the divergence was most in evidence. From its inception, this new

establishment was to have as its guiding principle the idea that productive work in association

was the means through which a penal institution would become self-sufficient and not be a

burden on the financial resources of the state. I will return to this important observation in the

final chapter. At this stage it is sufficient to note that the decision-makers in the penal realm

Cold Bath Fields prison in London before he emigrated to Queensland (SCPD, pp. 1146-7).

38 "Queensland Prison Regulations", QGG, vol. 9, no. 74,29 July 1868, p. 856.

39 See the correspondence in Sheriff to Colonial Secretary, 27 July 1869, QSA COLlA129 (2877].

40 Colonial Secretary to Sheriff, 14 September 1869, QSA PRIJA4 [0731].

41 Sheriff and Inspector of Prisons to Col Sec, 31 May 1877, QSA COLlA239 [3228].

42 In 1871, the government acquired details of a new design for tread-wheels, but none were subsequentlyconstructed (see Secretary of State for the Colonies to Col Sec, 23 January 1871, QSA COLlA163 [2976]).

Chapter 1:Deterrellce or Ref<)fJJlation? 58

were intent upon disregarding "the well-wrought-out results of English prison experience" in

favour ofa penal philosophy adapted to suit local circumstances.43

Expanding the Penal System

By the mid-1860s, the problem of overcrowding at Brisbane Gaol forced the Queensland

government to look beyond the capital for a new site to erect a penal establishment for the

detention oflong-sentenced convicts. They settled on the island of 8t Helena where, in 1865,

a quarantine station had been constructed by prisoners from the Proserpine.44 Early in the

following year, eighteen of their number were again rowed back to 8t Helena to convert the

quarantine buildings into the foundations of a penal establishment. In March, the island was

proclaimed a place for the detention ofmale prisoners and in the course of 1866 a lock-up and

two buildings were erected.45 By the end of the year the hulk had been moved closer to the

island to minimise travel time so that the full complement ofprisoners could be occupied

constructing the buildings that would later be used for their incarceration. John McDonald,

the Inspector of Water Police, was then appointed superintendent of the fledgling

establishment in 1867.46 He had to contend with a number ofsetbacks throughout the years

following his appointment, including a 'go slow' campaign by the prisoners who had been

promised, but had not yet received, payment for their efforts on the island.47 Buildings were

also periodically lost to ferocious weather or through poor workmanship.48 However, by early

43 Duke ofBuckingham and Chandos to Governor Blackall, 14 October 1868, GBPP, vol. 57, 1867-8, p.793.

44 See, for example, S. Moore, Dunwich quarantine station manager, to Col Sec, 4 October 1865, QSACOLIAn [2943]; and J. McDonald to Principal Under Sec, 9 November 1865, QSA COLlA73 [3036].

45 QGG, vol. 7, no. 32, 14 March 1866, p. 298. A few months later it was proclaimed a gaol, and then in thefollowing year it became a penal establishment (see QGG, vol. 8, no. 38,18 May 1867, p. 469). For detailsof the early construction work, see C. Tiffm, Colonial Architect, to Under Sec for Public Works, 10 January1867, QSA COLlA87 [0116].

46 QGG, vol. 8, no. 38, 18 May 1867, p. 469.

47 See, for example, visiting justice to Col Sec, 5 November 1867, QSA COLlA97 [2862]; and C. Tiffm,Colonial Architect, to Under Sec for Public Works, 5 November 1867, QSA COLlA97 [2890]. The menwere eventually paid a gratuity to encourage a return to their steady work practices (see also Jarvis Finger,The St Helena Story: An Illustrated History ofColonial Queensland's Island Prison [unpublished manuscriptin possession ofauthor]" 1988, ch. 2).

48 Visiting justice Thornton to Col Sec, 1 May 1867, QSA COLlA90 [1006]; and Finger, The St HelenaStory, ch. 2.

Chapter 1;Deterrence or Ref<)fll1ution? 59

1869, the prison was showing signs of steady advancement with observation towers, stone

walls, punishment cells, and a new wing currently under construction.49

The decision to utilise the vacant island for the construction of the colony's major penal

establishment was consistent with the nineteenth century trend towards establishing places of

punishment in isolated locations. There had even been a suggestion that the new facility

should be situated on either Sweers or Bentinck Island in the Gulf ofCarpentaria in the hope

that a convict station would encourage development in the far northern region.50 The

government, however, was not keen to involve its prisoners in any projects designed to lead to

the material advancement of the colony, choosing instead to establish the principle that a

fundamental requirement of punishment was complete segregation from free society. It was a

decision that would reinforce the widespread attitude that prisoners had forfeited their right to

be regarded as members of society. In a somewhat poignant indication of this attitude, the

island was later used for the dumping ofnight-soil by the Brisbane corporation. Only after

numerous cases of serious illness amongst the inmates and three years ofcomplaints from the

authorities were alternative arrangements made.51 The selection of an island in Moreton Bay

also had the advantage ofproviding inexpensive security - about six miles ofwater to cross

and the perceived omnipresence of sharks helping to quash any thoughts of escape. But there

were also the associated difficulties of isolation, transportation and communication costs

being the most obvious examples.52 The ability ofa visiting justice to arrange surprise

inspections of the establishment was also severely hindered - leading to a fear that abuses

could easily be concealed from outside scrutiny.53

Only two years after the prisoners were moved from the hulk to St Helena, the government

found it necessary to appoint another select committee to inquire into the management of the

49 Supt, St Helena, to Col Sec, I May 1869, QSA COLlA122 [1606]. For a detailed description of theestablishment after its fIrst couple of years, see Brisbane Courier, 9 May 1868.

50 J.C. White, Warwick police magistrate, to Col Sec, I September 1865, QSA COLlA70 [2298].

51 See especially "Penal Establishment, St Helena - Superintendent's Report for the year 1887 (hereafterARSStH)", QVP, vol. 1, 1888, p. 920; andARSStH, 1889, QVP, vol. 1,1890, p. 953.

52 A telegraph cable was eventually laid in December 1879 after repeated requests (see telegrams re StHelena telegraph cable, QSA COLlA287B [4698]).

53 QPD, vol. 9, 8 July 1869, p. 465; and "Sheriffs Report on Gaols, 1878 (hereafter ARS)", QVP, vol. 1,1879, p. 743.

Chapter 1:Deterrence or Rd<mnation? 60

new establishment? Its main concern was with the expenditure involved in the construction

and maintenance of the penal establishment, but it was careful to investigate other areas of

prison administration as well. In fact, a significant influence on the decision to appoint the

committee was an assortment of allegations of mismanagement made by an ex-prisoner in

May, 1869.55 Consequently, the committee paid particular attention to more controversial

issues like the efficiency of the warders who had replaced the military and police guards, the

adequacy of the rations and the possibilities for extracting more labour from the inmates. In

the area ofprison punishments, it was disclosed that the lash had been resorted to more

frequently than should have been necessary (fourteen times in approximately two years)

because of the absence ofdark cells.56 The situation had already been remedied, however,

and one prisoner was currently under confinement in complete darkness in a recently­

constructed cell below ground level.5? Ultimately, the investigation failed to uncover any

significant shortcomings, and the final report demonstrated the government's satisfaction with

the establishment's steady progress.

By the early 1870s, the attention of the authorities became focussed on the problem of

habitual offenders, especially those repeatedly convicted ofminor offences under the

vagrancy laws. This shift in focus was consistent with a similar hardening in attitudes towards

habituals in Britain where, during the late 1860s and early 1870s, new legislation was

introduced to make prison sentences for habitual offenders longer and harsher. It would

appear that the coercive side ofGladstonian liberalism also had its impact in the colonies.58

Following another general inquiry from the Secretary of State for the Colonies in 1872, the

Inspector ofPublic Institutions, Arthur Manning, submitted a brief report on the system of

54 "Report from the Select Committee on the Penal Establishment at St. Helena (hereafter SCStH)", QVP,vol. 1, 1869, pp. 859-909.

55 For details ofthe allegations, and McDonald's response, see supt to Col Sec, 7 June 1869, QSA COL/AI25[2165J. The prisoner, John O'Donnell, had formerly been a warder at Rockhampton Gaol. His allegationsincluded problems with the rations, the employment ofprisoners to do private work for some warders, theregular denial of indulgences to inmates, and the warders playing favourites with certain prisoners.

56 SCStH, Appendix I, pp. 886-8.

57 SCStH, p. 892.

58 On the changes in Britain, see Weiner, Reconstructing the Criminal, pp. 148-56.

I :Deterrence or Ret(ll'm,ltic>n?

ARE.A

(Jfl.r/(lIIJ/ ,?j"·T,.~, (;'

f).IJ

Illustration 1.4: Map Showing Island of St Helena, 1869 (SCStH)

61

Chapter 1:Deterrence or Refc)rrnation'? 62

.... " E:. A (,w.{?ht;t (h,~...»"co/

A "" F", ~ ,Sl':~.\..

.;~<A'l.l.n

Illustration 1.5: St Helena Penal Establishment: Plan ofPrison Buildings, 1869 (SCStH)

Chapter 1:Deterrel1ce or ReJemnation? 63

gaol management and discipline in the colony.59 He made particular reference to the class of

prisoner who "almost periodically, take up their quarters within the Gaol", suggesting that the

penal system should be made more punitive in the hope that it would deter some oftheir

number from further criminal behaviour.60 In the following year the colonial secretary

appointed a board, consisting of the sheriff, the Brisbane police magistrate and the visiting

justice to St Helena, to amend the 1868 regulations to make better provision for habitual

criminals.6I Arthur Halloran had earlier expressed to the colonial secretary his own opinion

on the issue, arguing that:

no system can be carried out effectively without proper means in building. Solong as Prisoners are mixed up in association all means of deterring byexceptional severity is I think a mere clumsy expedient, more easily achieved bylonger sentences being given by the Judges on the recurring offenders. I thinkalso, in view of deterring, that the punishment should be made as severe aspossible on the first offence, the man is then more likely to take his lesson, andkeep out of gao1.62

John McDonald was equally happy to make the regime at St Helena more severe, but was

opposed to the idea oflengthening sentences.63

The result of the board's deliberations was a set ofamendments to the 1868 prison regulations

that reflected a turn towards greater severity in the treatment of habitual offenders.64 The new

regulations stipulated that prisoners on second and subsequent convictions would undergo

separate treatment for the first twelve months oftheir sentences (even ifthe sentence was for a

59 Earl ofKimberley to Col Sec, 14 April 1872, Governor's Office. Original Despatches from the Secretaryof State for the Colonies, QSA AJ46207, p. 217. The inquiry was being made on behalf of the Social ScienceAssociation, at that time occupied with the forthcoming International Congress on the Prevention andRepression ofCrime, including Penal and Reformatory Treatment.

60 A.W. Manning to Under Col Sec, 27 June 1872, QSA COL/Al75 [2295]. It is interesting to note that thefmal report for the colonial office (prepared by the Sheriff) did not include much of importance in Manning'soriginal submission. In particular, the complete absence of classification in the colony's gaols wasexpediently camouflaged - a point that Manning had considered important enough to include at the head ofhis report (see "Report on the Prevention and Repression ofCrinle, including Penal and ReformatoryTreatment in Queensland", QVP, 1872, pp. 1487-9).

61 See Col Sec to Sheriff, 3 January 1873, QSA PRVA5 [0025]; and Col Sec to Sheriff, 21 April 1873, QSAPRVA5 [0383].

62 Sheriff to Col Sec, 10 January 1873, QSA COL/A183 [1088].

63Supt, St Helena, to Col Sec, 26 February 1873, QSA COL/A183 [1088].

64 See sheriff, police magistrate, Brisbane, visiting justice, St Helena, to Col Sec, 12 June 1873, QSACOL/A183 [1088]; and ARS, 1874, QVP, vol. 1,1875, p. 641.

Chapter 1:Deterrence or Ref<Jnnation? 64

total of twelve months).65 They would then be allowed to associate with others oftheir class

in "D" yard until the expiration of their second year, upon which time they would be allowed

to work in association with the other prisoners. In addition to the pain of isolation, forty

minutes of shot drill was to be performed each day in strict silence.66 At this time too, the

regular scale of gratuities credited to well-behaved and industrious prisoners as their sentences

progressed was abandoned in favour ofa system which allowed the Sheriff to present

discharged prisoners with a fixed sum on release to pay for food and lodgings for a few days

until employment could be found. 67

By the early 1880s, Queensland's penal system consisted ofgaols at Brisbane, Toowoomba,

Rockhampton, Townsville, and Roma; the penal establishment at St Helena; and police gaols

at Blackall, Thursday Island, Cooktown, and Fortitude Valley in Brisbane.68 These

institutions received in excess of 1400 admissions each year (twelve to fifteen percent were

women) out of a total population in the colony of over 200 000 persons. Arthur Halloran

retained the office of Sheriff and Inspector ofPrisons, and William Townley assumed control

of St Helena in 1882 (relieving John McDonald after his fifteen years in the post). In 1879, St

Helena was re-designated a penal establishment and the workshops at Brisbane Gaol were

transferred there in anticipation of the latter institution's closure.69 St Helena was now

regarded as the colony's main prison with its average daily inmate population rising from 122

in 1879 to 202 in 1880, and beyond 250 after 1885.70 It generally received all prisoners

serving sentences of twelve months or more, and occupied the majority of these with

agricultural and trade work. But the continued advancement ofthe colony's penal apparatus

was hampered by constant restriction of the purse strings in the face ofan expanding

population.

65 During this period they would be employed at mat-making, tailoring, or some other sedentary work withinthe confines of their cell.

66 See QGG, vol. 14, no. 89,27 September 1873, p. 1600, for details of the new regulations. A provision forthe tightening up ofprisoners' rights to receive visits and to send letters was cancelled after the originalproclamation earlier in the month.

67QGG, vol. 14, no. 84, 6 September 1873, p. 1497.

68 Roma Gaol was opened in 1872 to service the western districts (QGG, vol. 13, no. 125,7 December 1872,p.2025). Thursday Island Police Gaol was opened in 1877, Blackall in 1880, and Cooktown in 1881.

69 ARSStH, 1879", QVP, vol. 1, 1880, p. 633.

70 For superintendent McDonald's description of the establishment in 1882, see Imperial German Consul toCol Sec, 31 January 1882, QSA COL/A330 [0464].

Chapter 1:Deterrence or Refcmnation? 65

The problems posed by financial constraints and distance had their greatest impact in the

sparsely settled central and northern districts. Only a few years after it was erected, conditions

at Rockhampton Gaol had deteriorated to the point where extensive renovations were urgently

required.71 The steady increase in population had quickly created problems ofovercrowding

and the colony was having to bear the expense of transferring prisoners to the capital to serve

out their sentences.72 In 1876, twenty-six local magistrates aired their dissatisfaction with the

conditions at the gaol by petitioning the government and publishing their appeal in the press.73

The outcry eventually forced the government into action and building commenced on a new

gaol in the following year.74 But a combination ofbad planning and insufficient funding

meant that it took another seven years before the structure was complete. The erection ofa

gaol in Townsville in 1878 helped to alleviate the pressure of overcrowding, but by the time

Rockhampton Gaol was fully occupied in 1884 it too had become severely overcrowded.75

The case demonstrates how the provision ofadequate penal facilities remained a low priority

for the various colonial governments in this period ofconsistent population growth and

expansion of settlement.76 There may have been an acknowledgment that a programme

prison building was essential, but the manner in which it was implemented reflected the

colonial state's desire to minimise expenditure.

71 The most urgent requirements were a new punishment cell, a female ward, an observation tower, separateaccommodation for lunatics and some repairs to the gaol walls (see Sheriff to Col Sec, 16 January 1869, QSACOLlA116 [0199]; and medical officer to Col Sec, 22 February 1869, QSA COLlAU8 [0719]). Even theprisoners were complaining about the poor conditions (see prisoner W.E. Craig to Col Sec, 5 May 1874,QSA PRJ/A7 [0490]).

72 Sheriff to Col Sec, 4 March 1873, QSA COLlA180 [0393]; and ARS, 1874, QVP, vol. 1, 1875, p. 642.The cost of escorting prisoners was also a perennial concern for the commissioner ofpolice (see, forexample, "Report of the Commissioner of Police for the Year 1878", QVP, vol. 1,1879, p. 751).

73 Police magistrate to Col Sec, 25 July 1876, QSA COLlA224 [1887]; and Rockhampton Bulletin, 22 July1876.

74 Police magistrate to Col Sec, 16 January 1877, QSA COLlA233 [0255]; and police magistrate and medicalofficer to Col Sec, 11 July 1877, QSA COLlA241 [3668].

75 ARS, 1884, QVP, vol. 1, 1885, p. 538; and colonial architect to Under Secretary for Works, 26 February1885, QSA COLiA417 [1528]. The pressures of overcrowding were such that the authorities often employedthe dubious practice of transferring prisoners to the new structures before they had been completed. In 1879the prisoners at Townsville Gaol were being forced to forgo the luxury of a bunk to sleep on the coldconcrete floor with only a double blanket underneath (see visiting justice to Col Sec, 5 April 1879, QSACOLlA275 [1389]). See also, sheriff to Under Col Sec, 7 June 1879, QSA COLlA278 [2086].

76 The situation was no different for the northern police gaols and lockups. In 1885, William Bailey MLAcomplained to the government about the treatment ofunconvicted prisoners in a number of these institutions(see Commissioner of Police to Col Sec, 13 March 1885, QSA COLlA417 [1738]).

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Chapter 1:Deterrence or Reformation? 67

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Chapter l:Dcterrcl1ce or Rdcmnation? 69

The enduring problems ofovercrowding and inadequate classification continued to influence

developments throughout the l870s and early 1880s. In an effort to alleviate the latter

problem, the authorities embarked upon a program to establish facilities for two separate

categories of criminal frequenting the colony's penal system - young people and women.77 In

1871 an attempt was made to provide for the separate confinement ofwomen prisoners by

transforming the Toowoomba Gaol into an institution for the detention ofall women

convicted in the southern districts. It did continue to house a small number of short sentence

men (to avoid the costs of transporting them to Brisbane for briefperiods), but was essentially

regarded as the colony's female prison. The differentiation ofpenal strategies also resulted in

the establishment of the Industrial and Reformatory School for Boys on board the hulk

Proserpine in 1871. The new facility was intended to cater for criminal and neglected boys

aged fifteen years and under, removing them from the dangers of association with older,

confirmed criminals and allowing for the implementation of appropriate reformative

techniques. The government was less concerned with the welfare of its neglected and

criminal girls, however, taking another decade before eventually establishing a similar

institution in Toowoomba. During the intervening period it was either a stay in the orphanage

or a lengthy period ofemployment on license that would follow the conviction ofa young

woman in the colony's courts.78

The construction of St Helena in the late 1860s, and its subsequent designation as

Queensland's only penal establishment for long-sentenced men, had relieved the pressure of

overcrowding at Brisbane Gaol for the best part of a decade. Nevertheless, the Sheriff

remained aware of fundamental defects in the latter facility's design that had been exposed

during the 1867 select committee. In 1877, he recommended that a new prison for 600

inmates be erected in Brisbane so that essential modifications could be made in the areas of

77 The dynamics ofthis important shift in penal administration will be discussed in detail in chapter four.

78 See, for example, the case of the neglected daughter of a prostitute in Police magistrate, Toowoomba, toCol Sec, 9 March 1874, QSA COLlA193 [0519]; and Under Sec, Department ofPublic Instruction, toPrincipal Under Secretary, 3 December 1877, QSA COLiA248 [5497] on the impropriety ofsendingindustrial school girls to the orphanage. Police magistrate Pinnock was forced to secure employment for thegirls he sentenced to confmement in the reformatory (P. Pinnock to Col Sec, 31 March 1880, QSACOLlA291 [1774]).

Chapter l:Deterrcncc or Refonnatiou? 70

classification, prison discipline and prison labour.79 The gaol's central location on Petrie

Terrace also came to be seen as a problem as the city gradually expanded beyond its early

colonial boundaries. Its enhanced visibility offended the sensibilities ofmany influential

citizens who shared the opinion that institutions ofpunishment should be hidden away from

public view. They believed that gaols should be situated in distant localities where they could

not have a demoralising effect upon the public mind and where the inmates could be

completely isolated from society. Colonial Secretary Palmer, for example, remarked in

Parliament that "the present gaol was a disgrace to the nineteenth century and to the city of

Brisbane; ... no possible alteration ofthe building could make it a really efficient gaol - a

place not of torture, but ofpunishment - in the summer months particularly".80

Ultimately, it was decided that the Petrie Terrace gaol would be closed and the majority of its

inmates transferred to St Helena. A modest receiving gaol was to be established in its place to

accommodate the small number ofprisoners in transit, on remand, or serving short sentences.

Demolition began in 1880, and in the following year building commenced on the new gaol.8I

Once again the authorities selected high ground for the new establishment, positioning it

along the Boggo Road in Woolloongabba, approximately three miles from the city centre.

Designed by Francis Stanley, the colony's premier architect, it was entirely composed of

single cell accommodation for a maximum ofsixty-four prisoners.82 The new establishment

was finally completed in 1883 and the fifty-six inmates remaining in the old gaol were

transferred to the new building in July. But in the very year of its inauguration the problem of

overcrowding was immediately to emerge. At one point there were eighty-two prisoners

confined there, with the surplus being accommodated in the corridors and in the hospital.83 In

the following year, a twenty-five percent increase in inmates was recorded (with 125 in

79 1ARS, 1876, QVP, vo . 1, 1877, p. 1027.

80 QPD, vol. 30, 5 August 1879, p. 1096. The increase in inner city property values also meant that the gaolreserve would fetch a tidy sum for the state ifit was subdivided and placed on the market. For details on thestate of the gaol just prior to its closing, see Queensland Figaro, 6 January 1883.

81 ARS, 1880, QVP, vol. 1, 1881, p. 391; and ARS, 1881, QVP, vol. 1, 1882, p. 416. After the move to thenew premises a few of the buildings were preserved to function as an armoury and ordnance store for thedefence force, but the walls were quickly demolished and the stone sold off (Brisbane Courier, 3 July 1883).

82 Stanley was also responsible for the design of the Rockhampton Gaol (see Donald Watson and JudithMackay, Queensland Architects ofthe Nineteenth Century: A Biographical Dictionary, QueenslandMuseum, Brisbane, 1994, pp. 166-78).

83 ARS, 1883, QVP, vol. 1, 1884, p. 535.

Chapter 1:Deterrence or Refonnation? 71

confinement on one occasion), and in 1885 the inmate population peaked at 146.84

Reforming the Penal System

The cause of the sudden and extreme overcrowding was the inability ofthe penal system to

keep pace with a greatly expanding population during the early 1880s. Government policy at

the time reflected the belief that material development and economic expansion would result

from an increased population. Accordingly, the colonial state embarked upon a program of

assisted immigration that saw large numbers ofmigrants, the majority ofBritish stock,

arriving in the colony. The consequence was that in the years 1881-85 the rate of increase in

Queensland's population exceeded that of all the other colonies.85 The population had

virtually doubled in the ten years ending in 1886.86 In the same period, there was a significant

increase in the police force and the prison population more than doubled. 8?

In 1886 two new wings were finally added to the existing structure at Brisbane Gaol in an

attempt to address the problem.88 Upon completion the Gaol was composed ofa central wing

block, three stories high with 54 single cells; two smaller subsidiary wings of 36 cells each; an

administration block at the main entrance; another block containing the hospital, debtors'

ward and turnkey accommodation just inside the entrance; and a kitchen block and store

opposite the hospital (see illustration 1.9).

Continued investment in capital works was not the only method employed by the authorities

for relieving the pressure of overcrowding. Queensland's dramatic population growth also

created favourable conditions for the early adoption ofa more progressive approach to the

problem of increasing prison admissions. On the premier, Samuel Griffith's initiative, an

"Offenders Probation Bill" was drafted in 1886 and enacted later that year - in advance of all

84 ARS, 1884, QVP, vol. 1, 1885, p. 537; and ARS, 1885, QVP, vol. 1, 1886, p. 583. See also Sheriff andInspector ofPrisons to Under Col Sec, 1 June 1885, QSA COL/A425 [3993].

85Johnston, Call ofthe Land, p. 90.

86 In 1876, the population was estimated to be 173,283, in 1886 it was 322,853 (see Wray Vamplew (ed.),Australians: Historical Statistics, Fairfax, Syme and Weldon, Sydney, 1987, p. 26).

87 Johnston, Long Blue Line, p. 19.

88See ARS, 1886, QVP, vol. 1, 1887, p. 660; and El, pp. 717-8.

Chapter 1:Deterrence or l(d()rmation'? 72

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Chapter 1:.Deterrcnce or Rd()rrnalion'? 73

Illustration 1.10: Brisbane Gaol, South Brisbane, pictured in 1911 (ARC-G, 1911-12)

Chapter 1;Dcterrence or Refcmnation'? 74

other Australian jurisdictions and even the mother country.89 The Act allowed for the

conditional release of convicted offenders who were not liable for a sentence in excess of

three years and who were free of any previous convictions.9o But while there were these

formal provisions guiding the application of the new legislation, there was also an informal

one, based on age.

Despite there being no reference to age in the Act, there appeared to be an unofficial bias

towards employing its provisions only in the case of young offenders.91 As the Bill was

debated in Parliament it certainly appeared that an assumption had been made that the

legislation would only apply to youths who could be reclaimed from a life of crime.92 The

editor of the Courier expressed his reservations about this aspect of the proposed new law

when he wrote:

Youth alone should not be the criterion in the selection of individuals to whomgrace is extended, because we have in our larrikin class scores of youths who are,we fear, utterly depraved. It will be necessary to consider in committee whetherthe bill contains sufficient provisions for insuring a proper selection.93

Motivated solely by a fear that dangerous juvenile delinquents could be set free, he did not

consider it worth mentioning that some older offenders may have been deserving candidates

for release under the provisions ofthe Act.

The idea ofa system ofprobation for first offenders originated in 1884 during a discussion

between Griffith, then Premier, and Howard Vincent, an English criminal justice reformer and

89 Sir Samuel Walker Griffith (1845-1920) was a prominent figure in Queensland's judicial and politicalspheres. Throughout the 1870s, he was an important member of the urban based Liberal Party as it opposedthe influential pastoralist interest in Queensland's legislature. He became leader of the Party in 1879. Whenthe Liberals won office in the 1870s and 1880s, Griffith held a number ofportfolios and was premier from1883 to 1888 and then 1890 to 1893. He left politics in 1893 to assume the position of Queensland's chiefjustice. He held this post until1903, when he was appointed the first chiefjustice of the High Court ofAustralia. For further details, see Australian Dictionary ofBiography, vol. 9, Melbourne University Press,Melbourne, 1983, pp. 112-9; and R.B. Joyce, Samuel Walker Griffith, University of Queensland Press, StLucia, 1984.

90 The Offenders Probation Act of1886,50 Vic, no. 14, was eventually assented to on 13 October 1886.

91 See Offenders Probation Act of1886, section 2. On the bias towards youths see R.S. O'Regan, "SirSamuel Griffith and the Origins of Probation in Australia", The Australian Law Journal, vol. 66, 1992, p.283.

n ISee, for example, QPD, vo .49,3 August 1886, pp. 252-3 and 256.

93 Brisbane Courier, 4 August 1886.

Cbapter 1. :Deterrel1CC or Ref<)l'Jnation? 75

vocal advocate ofprobation who had been touring the world speaking and gathering

information on various aspects ofcriminal justice administration.94 Vincent had encountered

the system at work in Massachusetts during the American leg ofhis tour and had instantly

become a devotee of the principles behind the scheme. Blessed with formidable oratory skills

and in possession of a wealth ofknowledge about social issues, he apparently had little

difficulty in convincing Griffith of the merits of implementing some form ofprobation

system.95 If the potential reformatory benefits ofprobation were not enough to convert a

Premier ever mindful ofthe problems ofovercrowding that had dogged Queensland's penal

institutions in the past, then the possible financial savings of such a system would certainly

have added to the perceived value ofVincent's scheme. The fact that the Sheriff and

Inspector ofPrisons was to remain in favour ofprobation would lend some support to this. 96

assertIOn.

For the purpose of this thesis, perhaps the most important feature ofQueensland's probation

legislation in its early years was its delegation of the task ofmonitoring the progress of

probationers to the police force. Each offender was required to report to their local police

station either in person or by mail once every three months during the probationary period,97

This modification was in direct contrast to the scheme in operation in Massachusetts,98 There

the responsibility for maintaining surveillance of released offenders was in the hands of

specially appointed probation officers whose attendant duties involved advising judges in

court on whether to extend the provisions of the legislation to offenders and assisting in the

crucial role of rehabilitating ex-prisoners.99 In Victoria, debate had raged over the role of the

94 For details, see Stephen White, "Howard Vincent and the Development of Probation in Australia, NewZealand and the United Kingdom", Historical Studies, vol. 18, no, 73,1979, pp. 598-617; Finnane, "Penalityand Policy", pp. 84-97; and O'Regan, "Sir Samuel Griffith".

95 White, "Howard Vincent", pp. 608-9; 613.

96 W. Townley, Sheriff and Inspector of Prisons, to Secretary, Crown Law Offices, 13 September 1889, QSAmS/A59 [no number].

97 Offenders Probation Act of1886, section 5.

98 In New Zealand, where probation had been introduced a few months before Queensland, probation officershad been appointed; although it should be noted that as no funds were allocated to employ these officers itwas left to gaol officials and policemen to carry out the surveillance role (see Pratt, Punishment in a PerfectSociety, pp. 25; 145-6). See also Minister for Justice, New Zealand, to Col Sec, 21 January 1887, QSACOL/A492 [1796] for details of the New Zealand system.

99 See Finnane, "Penality and Policy", pp. 90-2.

Cbapter 1:Deterrenee or Refr)flnation? 76

local Prisoners' Aid Society and other private charitable organisations in the process of

supervising probationers, ultimately prolonging the endorsement oflegislation similar to

Queensland's.loo Mark Finnane's assertion that Brisbane, unlike Melbourne, did not have the

charity infrastructure and surplus of funds to accommodate the Massachusetts scheme may

well be correct; but it is curious to note that, exactly one month before the Offenders

Probation Act received royal assent, a Discharged Prisoners' Aid Society (DPAS) was

established in Brisbane at a meeting chaired by the Acting Governor, Arthur Hunter Palmer,

and attended by numerous representatives of the criminal justice system and legislature. lOl At

this inaugural gathering, S.W. Brooks made it clear that he regarded the movement to assist

discharged prisoners as "collateral" to the probation scheme. 102 However, there was no

explicit proposal for the DPAS to assume the role ofmonitoring and reforming probationers ­

in spite of a recent incident in which police persecution had been alleged. 103

Ironically, this distinction between prisoners' aid and probation may have been to the

advantage of the probationer. At the first annual meeting of the Society attention was drawn

to the degrading and potentially demoralising ritual whereby discharged prisoners wishing to

speak with the secretary were forced to seek an appointment with him at the Elizabeth Street

police court offices, where they would invariably become known to the policemen and

magistrates. 104 Griffith himselfhad impressed upon the legislature his desire for minimal

intervention into the probationer's lifestyle. lOS The Police Commissioner, D.T. Seymour,

however, had earlier recommended to the government that the Act should be altered so that

offenders had to report to the police once every month until they had found employment, and

that a description and twelve photographs of each prisoner should be taken prior to their

100 See White, "Howard Vincent", pp. 605-8.

101 Brisbane Courier, 7 September 1886. Earlier in the year there had been appeals from the press toestablish such a society (see Queensland Figaro, 10 Apri11886 and Brisbane Courier, 5 May 1886).

102 Brisbane Courier, 7 September 1886.

103 See Brisbane Courier, 10 April 1886. Vincent himself did not conceive of any formal relationshipbetween probation and prisoners' aid societies, preferring a system which maintained a clear distinctionbetween surveillance and charity (see his article "Discharged Prisoners: How to Aid Them", ContemporaryReview, 43, 1883, pp. 325-32). The representatives at the inaugural meeting in Brisbane were well aware ofVincent's writings on the matter (see Brisbane Courier, 7 September 1886).

104 Evening Observer, 18 October 1887. One former prisoner was certainly very pessimistic about the utilityof the DPAS (Brisbane Courier, 9 August 1887).

105 QPD, vol. 49,3 August 1886, pp. 252-3.

Chapter 1:Deterrence or Refonnation? 77

release. 106 He was intent upon establishing "a complete system of surveillance" which would

keep the probationers in check,IO? The system ofpolice-supervised probation constituted a

barrier to the successful reintegration of the offender into society. Even ifprobationers were

able to conduct their regular meetings with the police in secrecy, and thereby conceal the

"prison taint", they were still constantly reminded of the authoritarian gaze fixed upon them ­

a form ofdiscipline acting as a surrogate for incarceration. In fact, the new system was really

a form of suspended sentence rather than probation. lOS It represented a new method of social

control for the colonial state in which a system ofcentrally controlled surveillance came to

replace incarceration as the appropriate punishment for minor criminal activity in certain

circumstances. The only exception to the continued involvement of the police was in the case

ofjuvenile offenders released on probation. Until 1912, some juvenile probationers were

supervised by the inspectors of the Society for the Prevention of Cruelty and, following the

establishment of the State Children Department in 1911, departmental inspectors assumed this

role. 109

By 1890 the government had become anxious to evaluate the success of the probation system

and opinions were canvassed from a number ofofficers from within the criminal justice

system. 110 Six judges were asked to comment, most finding fault with the system as it was

currently operating. Only Justice Noel was openly hostile to the system, however, arguing

that it could produce in the minds of those under its provisions the notion

that crimes...are oflittle moment and a matter for sympathy rather thancondemnation and as a corollary thereof to destroy that healthy tone ofmindwhich has enabled so many young men to struggle up the ladder of fortune andmanfully resist all temptations to dishonesty while in positions of trust. I II

106 Police Commissioner to Col Sec, 25 August 1887, QSA JUS/A39 [no number]. In the fIrst year of theoperation of the Act, twenty men and one woman were released. For biographical details on Seymour, seeJohnston, Long Blue Line, ch. 2.

107 For details of Seymour's concerns about adequate surveillance, see "Report of the Commissioner of Policefor the Year 1887", QVP, vol. 1, 1888, p. 932.

108 See White, "Howard Vincent", pp. 608-9.

109 Schofield, State Child Care in Queensland, pp. 130-31.

110 For the various opinions see Principal Under Secretary, NSW, to Chief Secretary, 29 October 1891, QSAJUS/A59 [no number].

III Justice Noel to Under Col Sec, 15 February 1890, QSA JUS/A59 [no number]. Convinced that the Acthad actually increased the number of Queensland's criminals, he listed many other reasons for its allegedfailure. For an example ofsimilar complaints in the colonial press, see Week, 27 Aprill889.

Chapter l:Deterrencc or Ref<lnnation? 78

He was later to receive support from the ChiefJustice, Charles Lilley, who was reported to

have declared "'that the too liberal administration of the Offenders' Probation Act was

responsible for the increase of crime, especially theft ofmoney or embezzlement...",.112

In opposition to Justice Noel, William Townley considered

the operation of this Act to be upon the whole satisfactory more especially as itsaves young offenders from the contamination ofprison life, which in the presentdefective state of our penal system, mainly owing to want of gaol accommodationand consequent inability to separate and classify prisoners would beunavoidable. l13

.

He stated that in the three years the Act had been in operation 305 prisoners had been

released, and of these, 180 had completed their sentences satisfactorily, 23 had defaulted, and

125 remained on probation. 114 The estimated saving to the Prisons Department was the

considerable sum of £3000, almost a quarter of the entire vote for salaries and contingencies

in 1889-90. By September 1893 the number had been extended to 632 men and 51 women,

the vast majority ofoffences being for larceny (see Appendix 3).

The sentiments ofNoel and Townley were representative of two opposing penological

discourses embodied in classical penality: the former echoing the Just deserts' philosophy

typical of retributivists, the latter expressing the more fashionable perspective which

emphasised reformation of offenders as the central goal ofpunishment. Beyond the criminal

justice system as well, there was further evidence of the new spirit of reforming zeal being

tempered with calls for more severe treatment ofconfirmed criminals. The Brisbane Courier

expressed the view that both perspectives should inform penal policy and practice:

The true principle to adopt in dealing with offenders is to prevent them, ifpossible, from lapsing into the ranks of confirmed criminals, and if that shouldprove not to be possible to make their punishment a genuine one. We are noadvocates for any sickly sentimentality in dealing with criminals, especially in a

Il2 See Brisbane Courier article reprinted in Evening Observer, 9 April 1889.

113 W. Townley, Sheriff, to Secretary, Crown Law Offices, 13 September 1889, QSA JUS/A59 [no number].He did, however, concede that the Act tended to encourage "recklessness in youths about to commit crime"and attracted old offenders from other colonies to what they perceived as a more lenient system inQueensland.

114 For an example of editorial comment on an early defaulter, see Telegraph, 16 November 1887.

Chapter 1:Deterrence o!' Ref<mnation? 79

country like ours, where the excuse ofpoverty can seldom be pleaded for crime.If a man or woman elects to live at war with society, then society must protectitself, and make life as unpleasant as possible for its enemy. But it should beunremitting in its endeavours to prevent recruits from joining the ranks of the foe,and in attracting desertion from those ranks.... In time [the Offenders ProbationAct] may be followed by a measure enabling us to isolate for life the regularconfirmed criminals who form the leaders of our predatory class, and thus, bycutting off its front rank, while diminishing the number of its recruits, we maygreatly weaken the main body of our social enemies. Crime we shall alwayshave, but the existence of a body of habitual criminals as an almost recognisedclass in the community is a blot upon our civilisation. I IS

But the late-1880s was clearly an important juncture in the history ofQueensland's penal

system, one in which the concept ofreformation began to influence penal policy and practice.

The new system ofprobation carne too late to alleviate the overcrowding problem in the

colony's institutions of incarceration. In mid-1886 the Courier initiated a period ofprofound

concern with the operations of the penal system by printing a series ofarticles exposing the

conditions under which the colony's prisoners were forced to serve their sentences. I16

Beginning with the Brisbane lockup, and then addressing 8t Helena and Brisbane Gaol, the

articles demonstrated an alarming lack of uniformity in the systems ofprison discipline in

operation in the colony and culminated in calls for urgent reform. 117 In the words of the

Courier:

Broadly speaking the fault is that to hardened criminals the supposed punishmentis not punishment, while no attempt is made to save the inexperienced in crimefrom the contaminating influence of men who had adopted crime as a settledavocation, and there are no means provided for assisting the repentant wrong­doer in the attempt to recover a place in honest society.ll8

The solution was threefold: imprisonment must be a punishment, not a lounge, and work must

be provided as a means of instilling discipline and equipping unskilled offenders with at least

the rudiments ofa trade; greater accommodation must be provided to allow for complete

liS Brisbane Courier, 4 August 1886. It would be almost three decades before legislation was passed thatwould satisfy the Courier's plea for an instrument to effectively isolate habitual offenders from society (seethe discussion in chapter two).

116 Two years earlier Queensland Figaro published articles exposing the conditions at St Helena (see 26 Julyand 2 August 1884).

II? Brisbane Courier, 17 and 23 April 1886; and QPD, vol. 49, 3 September 1886, p. 650.

liS Brisbane Courier, 3 May 1886.

Chapter 1:Detcrrcncc o[ Reformation? 80

classification; and the treatment of remand and short sentence prisoners must be better than

that ofhardened long sentence offenders. 1l9 The criticisms owed their substance to classical

penology's principles ofpenal proportion and uniformity and predictability of punishment, a

perspective that was by now coming under sustained attack in Britain and Europe from the

disciples ofa "new penology", but remained dominant in the colonies (see the following

chapter for a discussion).

At the same time as the Courier printed its damning exposes of the penal system, a rising tide

ofdiscontent amongst the inmates at St Helena underlined the need for government

intervention. In May 1886, a petition signed by 183 prisoners was submitted to the

superintendent for delivery to the colonial secretary. In it, the signatories declined to specify

their grievances, preferring instead to request an audience with the colonial secretary

himself. 12o Their request was declined and the visiting justice, Colonel Ross, was instructed

to investigate the complaints. After interviewing each of the petitioners in tum, he concluded

that there were no grounds for complaint and that the petition had probably been the work of

"a few sharp old Jail hands" whose ultimate design was to complain to the colonial secretary

about their respective trials and sentences. 121 The prisoners were duly notified of the colonial, d .. . f: 122secretary s eClSlon not to mterlere.

In the Legislative Assembly a few months later, John Jessop, MLA for Dalby, repeated his

motion of the previous year calling for an inquiry into the gaols and lockups ofthe colony. 123

This time, however, he wanted a royal commission appointed to deal with the matter, rather

than a select committee. With the exposes still fresh in everybody's minds, there was general

agreement that an inquiry was needed. But the Premier, Samuel Griffith, objected to the

appointment of a royal commission, chiefly on the grounds of expense, and lobbied for an

inquiry to be directed by a single commissioner. Ultimately, the motion was withdrawn on

the promise of the Chief Secretary that an inquiry would be organised as soon as possible. 124

119 Brisbane Courier, 3 and 13 May 1886.

120 A copy of the petition may be found at superintendent to Col Sec, 14 May 1886, QSA COL/A469 [4534].

121 Visiting justice to Col Sec, 5 June 1886, COL/A469 [4534].

122 A copy of the briefletter is contained in the BI, p. 1028.

123 QPD,3 September 1886.

124 For a briefdiscussion of the politics of the inquiry, see Finnane, "Penality and Policy", pp. 92-4.

Chapter 1:Deterrence or Ref()fJJ1atjou'? 81

At about this time, a number ofprisoners staged a mutiny ofsorts after taking exception to

what they regarded as some petty tyrannical orders issued by superintendent Townley.I25 The

disturbance was easily quelled and the prisoners punished. Their action may also have been

motivated by resentment at the government's earlier decision not to respond to their petition.

In fact, during the latter halfof 1886 the general atmosphere in the establishment was one of

widespread discontent. Although no major incidents were recorded, the inmates were

certainly in an excitable state and a number of disciplinary breaches, including fights, were

recorded by the warders. 126 In the following February, another more detailed petition,

surreptitiously compiled by the St Helena inmates, somehow reached the colonial secretary

without passing through the superintendent. This would be the event that would finally spark

the government into action.

A few days later, the government appointed two commissioners, Benjamin Cribb and William

Kinnaird Rose, to conduct an inquiry into the general management ofthe several gaols, penal

establishment and lockups of the colony. Cribb, acting police magistrate at Cooktown, was to

resign after only six weeks, and was immediately replaced byWilliam Parry-Okeden,

immigration agent at Brisbane and later commissioner ofpolice (1895-1905). Kinnaird Rose,

a prominent barrister and journalist, had already served on the royal commission into the

kidnapping ofIslanders offNew Guinea in 1885, and had previous experience on similar

investigations in Britain. 127 The inquiry was to occupy the first half of the year - its

investigations being conducted between February and July, and its final report submitted at

the end ofAugust. Throughout this period, the commissioners traversed the colony inspecting

the six gaols and penal establishments, six of the eight police gaols, and forty-three lockups,

and in the process interviewed seventy-eight witnesses, along with a substantial number of

prisoners. Their brief was to investigate a wide range of areas, including prison structure,

accommodation and sanitation; classification and employment ofprisoners; the performance

ofprison officials; prison punishments; the practice ofprisoner transfers; the dietary

125 Brisbane Courier, 2 August 1887.

126BI, p. 779.

127 Kinnaird Rose was a friend of Samuel Griffith (see Ross Barber, "The Criminal Law Amendment Act of1891 and the 'Age of Consent' Issue in Queensland", Australian and New Zealand Journal ofCriminology,vol. 10, 1977, p. 98). For more details ofhis career, see Lincoln, The Punishment ofCrinJe in Queensland, p.155, n. 17.

Chapter 1:Deterrence or Rcf<mnatiou? 82

provisions; the treatment of Asiatic and Aboriginal prisoners; the adequacy of the prison

regulations (especially regarding remissions); and finally, the legislation relating to prisons. 128

Essentially left to its own devices, the board was into the final stages of its investigations

before the press attempted to exert some influence on its deliberations. While Kinnaird Rose

and Parry-Okeden were taking evidence in western and northern Queensland, the Courier

published another condemnatory expose of Brisbane Gaol by "A Man Who Was There".129

The ex-prisoner's commentary presented life in the gaol as being extremely severe for the

inmate population, criticising just about every imaginable aspect of its administration. The

article was taken seriously enough for the gaoler, Captain Jekyll, to be ordered to report upon

each allegation for the benefit of the Colonial Secretary and the commission. Not

surprisingly, he refuted virtually every criticism, seemingly to the satisfaction ofhis

superiors. 130 In any case, soon after the initial article had gone to press, the Courier published

another by an ex-inmate that completely contradicted the broad claim that prisoners in the

gaol were treated negligently or unfairly.131 Three months later, another former prisoner,

Thomas Skiffins, who had been involved in the "mutiny" at St Helena as an acknowledged

representative of the inmates, presented two lectures on prison reform in the Protestant and

City Mission Halls. 132 His speeches centred on the unjust manner in which the inmates were

treated and the general atmosphere of discontent prevailing at 8t Helena, and he was quick to

justify the prisoners' actions at the time of the "mutiny". Most importantly, however, in both

lectures he focused on the authorities' failure to develop reformative strategies at the

establishment. It was this criticism that was highlighted in the press as it eagerly awaited

publication of the board's report. 133

The public curiosity was met with a somewhat ambiguous response. In many respects, the

128 BI, p. 677.

129 Brisbane Courier, 11 May 1887; and Daily Observer, 11 May 1887.

130 For the report and Halloran's defence of the management of Brisbane Gaol, see sheriff to Under Col Sec,30 May 1887, QSA COLlA502 [4399].

131 Brisbane Courier, 14 May 1887; and Daily Observer, 14 May 1887. Soon after, the Courier publishedanother article that portrayed the colony's gaols as comfortable retreats, describing St Helena as a "pleasantsummer resort" (Brisbane Courier, 6 June 1887).

132 Brisbane Courier, 2 and 9 August 1887.

133 See, for example, Evening Observer, 13 August 1887.

Chapter 1:Dcterrcncc o!' ReJemnation? 83

final report seemed at odds with the minutes of evidence. On the one hand, the main thrust of

the report was that overall the penal system was not harsh enough; on the other hand, the

evidence contained details of many instances of inmate suffering caused by deficiencies in the

system. The reason for the discrepancy is unclear. Perhaps it was reflective of the

commissioners' misgivings about relying on the testimonies ofprisoners, or perhaps it was the

need for bureaucratic expediency in preparing a report for Parliament that would eventually

be open to public scrutiny. In any case, together the report and evidence provide the historian

with an indispensable window on the state ofQueensland's penal system in the mid-1880s.

The report began with a brief statistical survey that demonstrated that crime was increasing,

though not at an alarming rate. In 1885,2,267 prisoners were received into the gaols of the

colony, including 228 women. Sixty percent of this number were under thirty years of age,

and nearly halfwere between twenty and thirty. 134 Between 1881 and 1885, the Irish were the

nationality most frequently taken into custody, consistently comprising about one third of the

annual totals with public order offences accounting for much of this representation. 135 The

report also emphasised the problem ofhabitual criminals from the southern colonies

migrating to Queensland, and the proportionately high number ofwomen recidivists

occupying the colony's gaols. 136 The commissioners then included a damning overview of the

state of the penal system:

Broadly speaking the condition of all the gaols and penal establishments in thecolony has become feeble and nerveless. This is perhaps the result of a reboundto undue leniency from the harsh and cruel treatment to which prisoners weresubjected in Australia in the olden days. The defective organisation andadministration which the evidence and the special reports on each of the gaolsdisclose, the deficient discipline rendered unavoidable by badly planned andconstructed prisons, the lack of classification ofprisoners, the facilities forcontamination, the unnecessary luxuries provided for, and the general ease andcomfort enjoyed by the inmates of almost all the penitentiary establishmentsrender, we are convinced, nugatory a considerable proportion of the largeexpenditure incurred in the pursuit, detection, trial, and conviction of criminals,and tend directly to encourage the growth of a criminal class. l37

134 The refonnatories were now taking the vast majority of children convicted of criminal offences - onlyeight aged between ten and fifteen years were received in the gaols (see BI, p. 686).

135 The Irish accounted for 33.81 percent of the total number taken into custody for public order offences inthe years 1881 to 1885 (see El, pp. 685-6; and Appendix, Pt 4, nos 8-10).

136 El, pp. 684-5; and Appendices, Pt4, nos 5-7, p. 1053.

137El, p. 687.

Chapter 1:Deterrence or Refonnation? 84

They confirmed the allegations made in the 1886 exposes by concluding that, on the whole,

prisoners were not worked hard enough, they were too well fed, and they enjoyed too many

hours of relaxation in the company ofeach other with a range ofamusements to while away

the time.

As a consequence of this general perception, it was recommended that the system of

indulgences and tobacco rations be abolished, and more employment be found for the

prisoners. 138 But the suggested improvements were not all reflective ofa desire for greater

severity. It was also advised that the gag should be abolished and that the lash be used as a

last resort only.139 Although not finding any case of serious corruption, the commissioners did

perceive a need to improve the quality ofthe warders by recruiting more reputable personnel

and instituting a system ofrotation in which those below the rank of gaoler would be required

to serve at a number ofdifferent institutions. 140 Compulsory inquests into all deaths in

custody were to be introduced as well. The question ofwhether it was necessary to provide

different treatment for Asiatic and Aboriginal prisoners was also' resolved. Apart from

introducing a special dietary scale for non-Europeans convicted under the Master and

Servants legislation and endeavouring to separate Aboriginal prisoners from the rest, the

commissioners did not see a pressing need for any other alterations to the current practices

(chiefly because ofthe "complexity and expense" ofmaking exceptions). 141 Finally, it was

suggested that there was a need for greater consistency and uniformity in the application of

prison rules, and that new legislation and revised regulations should reflect this, while a

comptroller-general should be appointed to ensure that it is maintained. 142

The most important deficiency outlined in the report was in the area ofaccommodation. 143

Barely forty-five percent of the nominal accommodation available allowed for the separate

138 BI, pp. 692-3 and 697-9.

139 BI, pp. 696-7.

140 BI, p. 694.

141 The proposed dietary modification merely consisted of adding some rice to the existing scale and reducingthe meat allowance (see BI, pp. 699-700).

142 BI, pp. 701-2.

143 BI, pp. 687-90.

Chapter 1:Deterrellce or ReJe)fJmtion? 85

confinement ofprisoners. The remainder were confined in association, rendering appropriate

classification impossible. Consequently, prison discipline was difficult to maintain and, in the

tropical and sub-tropical climate, the necessary conditions for an outbreak of disease were

created. The solution, just as it was in 1868, was the implementation of the separate system in

each of the colony's gaols to combat "the moral and physical contamination" of its

reclaimable inmates. 144 The board made six recommendations to deal with the problem: the

construction ofa new penitentiary for 300 inmates on the mainland; the transformation ofSt

Helena into an establishment solely for the reception ofwell behaved penal servitude

prisoners; the tripartite division ofBrisbane Gaol into distinct wings for females, remand

prisoners and short sentence prisoners; the enlargement ofRockhampton and Townsville

gaols; the complete remodelling ofToowoomba Gaol; and the introduction ofa "sound

system ofclassification". 145 This latter recommendation involved adopting a system of

classification similar to those in force in Victoria and New South Wales. 146

The latter two thirds of the report consisted ofa brief report on each institution examined

during the inquiry. In each, the commissioners focussed specifically upon the areas of site

and buildings, accommodation, health, sanitation, and administration. St Helena was

condemned for its reliance upon association (only one third of 288 prisoners were confined

separately) and its lack ofproductivity in comparison with English prisons. 147 In a special

section devoted to the February petition, the commissioners found against the inmates in

nearly every case. There were only three significant criticisms ofthe existing regime: first,

the superintendent had modified the rules of the establishment without prior approval of the

government; second, there was a genuine need to enhance the level of religious instruction by

erecting some accommodation for visiting clergy; and third, the superintendent's opinion that

use of the prison library was a privilege was refuted and greater access to reading material

recommended. 148 Brisbane Gaol, undergoing extension work at the time of the inquiry,

144 The report included a discussion of the feasibility of converting the associated wards in each establishmentinto separate cells (see El, p. 688-9).

145El, p. 690.

146 Townley had already presented to the board two separate reports from his recent tours of the penalsystems in these colonies. Both contained much information on the classificatory schemes used in eachcolony (see El, Appendix Pt 4, nos 12 and 13, pp. 1055-61).

147BI, pp. 703-9.

148El, pp. 712-17.

Chapter l:Deterrence or Refonnation? 86

received a much more unfavourable assessment. Its most glaring deficiencies included a

defective design that hindered efficient surveillance; frequent overcrowding, with three to four

prisoners squeezed into a single cell; filthy and vermin-infested blankets; an absence of

classification; poor quality food supplies; and inadequate medical attention. But it was the

Townsville and Toowoomba Gaols that stood out as the worst in the entire penal system. In

the former, overcrowding was the major problem as the institution was constantly forced to

accommodate twice its capacity, including a sizeable non-European component. It also

suffered from a lack ofdiscipline amongst its staff - a deficiency for which the gaoler would

be harshly reprimanded and ultimately demoted. 149 The flagrant disregard for the welfare of

the colony's female prisoners was reflected in the fact that both the institutions essentially

reserved for female offenders, Toowoomba Gaol and the Valley Police Gaol in Brisbane,150were found to be well below an acceptable standard.

The final section of the report was devoted to highlighting the consistently poor state of the

lockups and police gaols around the colony. Overcrowding, inadequate ventilation, insanitary

conditions, obscene graffiti, lack of classification, idle inmates and insufficient supervision

were persistently recurring deficiencies plaguing these smaller institutions. Inspired by the

first of the 1886 exposes, the Brisbane lockup received particular attention. Little had

changed since the Courier reporter's brief sojourn there - the commissioners describing the

cells as "dark, ill-ventilated, and oppressive".151 The more remote lockups were even worse.

Travelling west from Rockhampton, the commissioners would have encountered at Emerald a

single cell "scarcely fit for a pig" in which women and lunatics were often confined. 152

Further on at Barcaldine, the lockup was simply a tent with a tree at its mouth to which

prisoners were tied to prevent escape. 153 And finally, at Winton, all prisoners, tried or untried,

were shackled in leg-irons which were chained to a bolt in the wall because white ants had

149 For more details on the problems at Townsville Gaol, see EI, pp. 729-33. It would seem that the evidencegiven by the staff at Townsville Gaol indicated that Gaoler Smyth was not fit for the post. Halloran wrote insupport of the gaoler, blaming the problems on warders unwilling to submit to his strict discipline.Ultimately, he was transferred to Roma (Sheriff to Under Col Sec, 14 November 1887, QSA PRVA38[2258]). Smyth also thought that the warders were conspiring against him (see Sheriff to Under Col Sec, 27October 1887, QSA PRVA38 [2258]).

150 These institutions will be discussed in more detail in chapter four.

151 EI, p. 741.

152 EI, p. 748.

153 EI,p.749.

Chapter 1:Deterrence or Reformation? 87

154eaten away much of the obsolete wooden structure.

The Legislative Assembly was the first to debate the findings of the inquiry after its report was

tabled in parliament on 30 August. A vindicated and self-satisfied Jessop pre-empted the

scheduled time for debating the report to resume his attack on the management of the penal

system. I55 The ensuing debate involved much criticism of the shocking state of affairs in

gaols like Townsville and Toowoomba, but the most trenchant responses were reserved for

the reports on the condition of the lockups. When the designated session finally arrived in the

following month, the debate was distinguished by its brevity. 156 Considering the importance,

not to mention the sheer size of the report, it would be reasonable to expect that more time

would have been occupied discussing its implications. Again it was the gaols at Townsville

and Toowoomba that preoccupied the speakers, but there was also discussion of the need for

compulsory inquests into deaths in custody, the importance ofproviding prison labour and the

quality ofthe warders.

In contrast, the sensation-hungry press leapt upon the damning report and its occasionally

lurid minutes ofevidence. The Evangelical Standard described it as "about as condemnatory

as a report could be. In fact it is one sustained indictment against our present system ofprison

management, and it shows the necessity that exists for an immediate and vigorous reform" .157

The Courier was no more forgiving, concentrating its attack on the apparent easy life of the

colonial prisoner. It condemned the lack ofuniformity that existed in the conditions at each

institution and demanded an end to the "false sentiment, callousness, disorganisation, and

abuse which has so long smothered and bemired the prison administration of the colony". 158

The Evening Observer was just as condemnatory, but it was careful to temper its criticisms

with the assertion that, while the prisoners needed to be found work, their employment must

not interfere with free labour. 159 It was also highly critical of what it regarded as an almost

unanimous censure of the report's credibility in the Legislative Assembly. According to the

154 BI, 751.

155QPD, 14 September 1887, pp. 559-68.

156QPD, vol. 53, 25 October 1887, pp. 1210-20.

157 Queensland Evangelical Standard, 9 September 1887.

158 Brisbane Courier, 5 September 1887. See also Week, 10 September 1887.

159 Evening Observer, 5 and 9 September 1887.

Chapter 1:Deterrcnce or Rd<lflnation? 88

editor, it was absurd to reject the report on the basis that inmate evidence was worthless.

Surely it was more sensible to trust "the corroborated evidence ofprisoners rather than the

exculpatory evidence ofofficials whose conduct was involved in the inquiry". 160 There was

no doubt that the entire penal system was in need ofa dramatic revision, and the editorial

concluded with the progressive conviction that the aim ofpunishment was reformation rather

than deterrence.

At the close ofthe commission, and during the discussion of its report, it appeared that the

colony had reached an impasse in its provision ofpenal strategies - to what degree should they

be deterrent or reformative? Two somewhat contradictory commentaries in the Courier best

illustrate the dilemma. In an editorial on the commissionfs report, the Courier argued:

We need prisons for two purposes, to protect society by punishing criminals, andto lay the foundation of reform in the criminals themselves - or so many of themthat are not passed reformation. Speaking generally, our gaols punish irregularlyor insufficiently, and they rather demoralise than reform their inmates. 161

Six weeks later, in an editorial on the parliamentary discussion ofthe report, the Courier was

emphatic in its opinion that "Law as such, it must not be forgotten, has absolutely nothing to

do with the moral reformation of the wrong doer. What it has to do is to make him suffer, and

so to suffer that, ifpossible, he shall be deterred from a repetition of the wrong". 162 Writing in

the wake ofallegations that the St Helena prison regime was less than harsh, the author was

emphasising the need to make prisoners, while incarcerated, work hard to maintain their

families and accumulate a small amount ofmoney to assist them to find their feet upon

release. That the prisoners and their families had hitherto been burdens on the state was

unfair to the population as a whole. 163

160 Evening Observer, 26 October 1887.

161 Brisbane Courier, 15 September 1887.

162 Brisbane Courier, 28 October 1887.

163 Reinforcing the contested nature ofpenality in Queensland at this time, a correspondent offered a thirdperspective in a later issue. "Janitor" contended that the aim ofpunishment was to prevent further crime, anddeterrence was just one method for achieving this aim. It was time that the government placed moreemphasis on preventing people from committing crime, rather than simply attempting to reclaim those whohad already offended (Brisbane Courier, 1 November 1887).

Chapter 1:Deterrcnce or Rcf<mnation? 89

Conclusion

The tension between deterrence and reformation had always been a feature of mid-Victorian

penality, though any conflict was usually resolved by privileging the former goal. This

tension was evident in Queensland somewhat later in the nineteenth century as its penal

system steadily increased in size and complexity and the colonial state's discourse on penality

gradually matured. When the 1887 board of inquiry was commissioned to determine and

make recommendations to remedy the many deficiencies of the Queensland penal system, it

was a belated attempt to devise a blueprint for the creation ofa "uniformly administered

discipline" in the colony's penal apparatus - a goal consistent with the most fundamental

principles ofclassical penology. 164 But this attempt to manufacture a modem penal apparatus

was imbued with elements ofpragmatism, best illustrated in the longstanding decision to

substitute remunerative labour for penal labour and, from the 1860s, the tacit

acknowledgment that confinement in association was an acceptable alternative to separation.

The inquiry itself, and the public and parliamentary debate around its report, affirmed

Queensland's commitment to classical penology at a time when other societies were on the

cusp of introducing a new approach based on rehabilitation rather than deterrence. The next

chapter will examine the gradual movement away from classical penology in which the

Queensland penal system limped into a new era in the punishment ofcrime, an era in which

the individual treatment ofoffenders would become the goal ofpenal administrators and

others concerned with the administration ofcriminal justice.

[64 Victor Bailey, "English Prisons, Penal Culture, and the Abatement of Imprisonment, 1895-1922", JournalofBritish Studies, vol. 36, no. 3,1997, p. 315.

Chapter 2: New Penology or Neo-Classical PenaLijy,? 90

Chapter 2

New Penology or Neo-Classical Penality? Reordering the Penal Realm,

1890-1930s

The tum of the twentieth century is now generally regarded as a significant period ofchange

in the history ofpenal policy and practice in western European, north American and many

colonial jurisdictions, and the broad details of this widespread transformation provide an

important context for the analysis ofpunishment in Queensland in this period. David Garland

has offered the most comprehensive study to date, investigating in detail the transformation of

the penal domain in Britain which grew out of the crisis of Victorian penality at the end of the

nineteenth century.l The dramatic change in penality in this period occurred in conjunction

with a broader transformation ofBritish social, political and economic life as the ideologies of

social democracy and welfarism gradually displaced the liberal traditions of the nineteenth

century. Between 1895 and 1914 there emerged a new ideology of "penal-welfare" which

was characterised by

its distinctively positive approach to the reform of deviants, its extensive use ofinterventionist agencies, its deployment of social work and psychiatric expertise,its concern to regulate, manage and nonnalize rather than immediately to punish,and of course its new 'welfarist' self-representation - all these characteristicscombine to link the new penality to the new set of social strategies, ideologicalforms, and class relations which emerged at this time?

The reordering of the penal realm was due in particular to the influence ofa number ofkey

social movements that came to fruition in the 1880s and 1890s, receiving their impetus from

the steady march ofwelfarist thought and practice: the advent ofa new scientific criminology,

the positioning ofthe programmes of eugenics and social security to improve the nation's

standards of fitness and efficiency, along with the development of the social work profession

and its involvement in penal affairs. These "programmes ofsocial action", Garland argues,

were the most influential forces in responding to the crisis in Victorian penality and

precipitating the development of a modem, penal-welfare complex.3

1 Garland, Punishment and Welfare.

2 Garland, Punishment and Modern Society, p. 128.

3 Garland, Punishment and Welfare, cbs 3-5.

Chapler 2: Ne\v Penology or Nco-Classical Pcnality? 91

A concurrent and equally dramatic re-structuring of the social realm also occurred in the

Australian context. The economic crisis of the 1890s and the advent of the labour and

women's movements posed unavoidable challenges to the notions ofcontinued prosperity and

consensus that lay at the heart of a hitherto unthreatened majority belief in progress. In the

Australian colonies at the end of the nineteenth century, "an optimism grounded in common

interests and shared values yielded to disillusionment and conflid,.4 As the federation

movement gathered pace, there was widespread recognition that the task ofnation-building

was deeply entwined with the process of establishing social and economic efficiency in a

competitive and uncertain world economy. The drive for security in the face ofmenacing and

unpredictable external forces ushered into being a social welfare system which sought to

guarantee for white colonists a minimum standard ofliving that would become the envy of

other nations.

The penal sphere could not remain insulated from these profound changes, a fact that has

already been noticed by historians ofpunishment in the Australian context.s Stephen Garton,

for example, has examined the impact ofnew penal-welfare strategies in effecting a dramatic

reduction in rates ofprison admissions in New South Wales in this period. He has

constructed a picture ofpenal transformation in New South Wales that closely parallels

developments in western European jurisdictions, along the way criticising overseas scholars

for not adequately examining the impact of structural shifts in the distribution and incidence

ofpenal interventions.6 This portrait of correspondent processes may well be accurate for

New South Wales, and the progressive enterprise of Comptroller-General Frederick

Neitenstein may be the major reason for this, but other historians ofcolonial penality must be

cautious not to assume that other jurisdictions had an identical experience. Only after careful

scrutiny of the particular circumstances of each colony has occurred will we be able to frame

an accurate composite picture of the developmental patterns ofpenality in Australia in this

period. The evidence from Queensland would suggest that the new ideas and practices from

abroad were refracted through a prism ofpeculiar circumstances which ensured that penal

change would be conspicuously distinctive. The transition from a purely punitive system to

4 Stuart MacIntyre, A Concise History 0/Australia, Cambridge University Press, Cambridge, 1999, p. 136;and Lewis, History a/the Ports a/Queensland, p. 76. •

5 Finnane, Punishment in Australian Society, ch. 3; and Garton, "Bad or Mad?"; and "The State, LabourMarkets and Incarceration".

6 Garton, "The State, Labour Markets and Incarceration", pp. 309-35.

Chapter 2: New Penology or Nco-Classical Venality? 92

one that could be described as penal-welfare in orientation was a contingent process in which

innovations in reform were adapted either to suit local circumstances or simply to become

affordable for the frugal colonial state.

The aim of this chapter is to examine the principal ideological and structural changes that

occurred in the penal realm in Queensland from the 1890s to the 1930s. What were these

changes? How did they come about? How extensive were they? The chapter begins with a

discussion of the outcomes of the movement to reform the penal system that had gathered

pace in the 1880s. The introduction ofnew legislation, new rules and regulations, a new

Comptroller-General, and a new penal establishment were features of the early 1890s. By the

middle of the decade, admissions to Queensland's prisons gradually began to decline, and

favourable conditions were created for are-ordering ofthe penal realm. The new science of

criminology began to re-focus attention onto the individual characteristics ofoffenders, and

penal reform in the colonies took on a different hue as the basic principles ofclassical penality

came under threat. If criminological inquiry could identify distinct categories of criminals,

more or less dangerous and more or less able to be reformed, then there could be no

justification for uniformity in punishment, or for proportionality ofpunishment. The

emerging new penology prescribed a differentiation ofpunishment based on the individual

characteristics ofoffenders. The result of this new orientation was the introduction ofa range

ofnew penal-welfare strategies in Queensland which reflected the transformation in

perceptions ofthe offender from a free-thinking, rational human subject to an individually

deficient human, predisposed to certain types ofbehaviour.7 The practical application of this

new ideology, however, was continually obstructed by a parsimonious response on the part of

the colonial state.

Implementing Reform

Before embarking upon an analysis of the changes that took place from the end of the

nineteenth century, it is necessary to continue our narrative ofthe development of

Queensland's penal apparatus. At the end of the 1880s, it appeared likely that there would be

far-reaching reform of the penal system. The report of the 1887 board of inquiry, and the

justifiably raised expectations of the press and public, demanded an immediate and

7 Garland, Punishment and Welfare, p. 90.

Chapter 2: New Penology or Nco-Classical Penality? 93

comprehensive response from government. Twelve months after the report was tabled in

parliament, the Upper Rouse began the task of debating a "Bill to Consolidate and Amend the

Law relating to Gaols, Prisons, Houses of Correction, and Penal Establishments in

Queensland".8 The urgent need for revised legislation had been emphasised in the 1887

report, and the government was reasonably prompt in preparing a draft for perusal and

discussion. A number of minor amendments were initially made in the Legislative Council,

but meaningful debate was continually frustrated by the extended discussion ofwhat were

essentially mere technicalities. Rules specifying the appropriate visiting rights of

parliamentarians and members of the judiciary, and the changed role of the Sheriff following

the inauguration of the position ofComptroller-General, were examples. Enthusiasm quickly

waned to the point where, at the end of the month, the Bill was shelved in favour ofmore

pressing business. It was eventually transmitted to the Legislative Assembly midway through

the next year, but once again was passed over until the following session.

Led by vocal representatives of the emerging labour opposition, debate in the Lower House

took on a very different complexion to what had occurred in the Legislative Council.

Prominent labour supporters like Thomas Glassey and John Hoolan declared their opposition

to the provision in the Bill that allowed for the use ofcorporal punishment to discipline

inmates found guilty ofmajor prison offences.9 When Glassey moved that it be omitted from

the Bill he was supported by Griffith and some other Liberals, but was ultimately defeated in

the resulting division. lo Hoolan had earlier precipitated the temporary withdrawal from the

chamber ofabout a dozen members from both sides ofthe House by declaring that ifhe had

been lashed for a crime committed in the heat ofpassion he would not rest until he had. II

escaped from prison and had drunk the "heart's blood" of the scourger. Glassey and Roolan

also made specific reference to what they regarded as the particularly harsh sentences to be

imposed on prisoners attempting to escape. The issue clearly crossed party lines when it was

suggested by a more conservative McIlwraith supporter that no punishment should be

8 QPD, vol. 54, 28 August 1888, p. 14.

9 See, in particular, QPD, vol. 61,17 September 1890, pp. 555-6; and 1October 1890, pp. 741-5.

to QPD, vol. 62,17 October 1890, pp. 1003-4.

It QPD, vol. 61, 1 October 1890, pp. 742-3; and Brisbane Courier, 2 October 1890. See also RodKirkpatrick, Sworn To No Master: A History ofthe Provincial Press in Queensland to 1930, Darling DownsInstitute Press, Toowoomba, 1984, pp. 148-9.

Chapter 2: New Penology or Nco-Classical Pcnality? 94

inflicted on prisoners who were merely trying to regain their liberty. 12 Only after vigorous

debate did the advocates ofleniency eventually win a number ofconcessions. In particular,

the lash could only be used to punish the offences ofmutiny, assaulting a prison officer, and

other acts of gross insubordination; and the offences relating to escape were redesignated as

minor offences, now carrying a maximum penalty of six months hard labour or fourteen days

in a punishment cell when before a penalty of flogging could be imposed.

It was somewhat fitting (and perhaps more than coincidental) that the Bill was finally passed

after Griffith's return to the Premiership in August 1890 as a member ofthe Liberal­

conservative alliance known as the "Griffilwraith" government. 13 The 1887 inquiry had been

a product ofhis earlier ministry and, to quote Mark Finnane, "the passing ofthe Prisons bill

illustrated Griffith's capacity for pushing through the legal infrastructures necessary for the

proper governing ofcolonial social order" .14 The Act itselfconsolidated and revised earlier

legislation dealing with prisons. It defined in detail the role of the Comptroller-General,

although the Sheriffwas to retain this function for another three years. More attention was

devoted to the role of the visiting justice, however, and his duties 'were delineated in much

greater detail than had previously been the case. He was the officer responsible for

monitoring the day-to-day operations ofthe prisons and was now required to furnish the

Comptroller-General with monthly assessments of each of the following aspects ofprison

management: the state of the buildings; the sanitary condition of the prison; the conduct of the

staff; the classification of the prisoners; the means ofemploying them; the enforcement of

hard labour; the treatment and conduct of the prisoners; and the infliction ofcorporal

punishment. ls The remainder of the Act was devoted to the prisons themselves. Part four

defined the appropriate punishments for a variety ofminor and more serious offences, and set

down other rules relating to the maintenance ofprison discipline and the employment of

inmates. Clause 37 stipulated that, where practicable, a separate cell should be provided for

each prisoner. The words "where practicable" ensuring that it constituted little more than a

mere gesture towards the principle of total separation. The final three sections were as

12 The member was Michael Gannon (see QPD, vol. 61, 1 October 1890, p. 740).

13 Thomas McIlwraith was leader of the conservative side of the alliance. For biographical details, see D.B.Waterson, "Thomas McIlwraith: A Colonial Entrepreneur", in Denis Murphy, Roger Joyce and MargaretCribb (eds), The Premiers ofQueensland, University of Queensland Press, St Lucia, 1990, pp. 118-41.

14 Finnane, "Penality and Policy", p. 94.

15 The Prisons Act 1890,54 Vic, no. 17, c. 27.

Cbaptcr 2: Ncw Penology or Nco-Classical Penality? 95

follows: "the Law ofPrisons", including provision for compulsory inquests into deaths of

prisoners; "Offences in Relation to Prisons", including aiding escapes and the smuggling of

contraband into prisons; and finally, a section for "General Provisions":

In 1892, Townley and Charles Pennefather, superintendent ofSt Helena, finally devised new

rules and regulations for the penal system to reflect the 1890 legislation. 16 The Courier

applauded the emphasis on reformation evident in the new regulations, arguing that a focus on

deterrence alone was likely "to tum out upon society a more determined and dangerous

criminal" .17 The detailed system of classification was presented as the main weapon against

the evils of association. The new system stipulated that all criminal prisoners were to be

divided into those sentenced to hard labour, those sentenced to terms of imprisonment, and

those awaiting trial. Each of these categories was further differentiated according to whether

a prisoner had previously been convicted or not. In this way, the six main classes were

defined, leaving only another two for debtors and lunatics. 18 The new dietary scales were

commended for their "liberality" and "variation". These were divided into four categories

according to each prisoner's sentence and work regime, with another three scales for prisoners

undergoing punishment, or on the sick list. 19 The regulations also included an attempt to

encourage industry amongst the inmates by introducing a gratuity ofone pence per day for

prisoners performing labour, and by introducing a "mark system" which allowed prisoners to

determine the amount of remission to which they were entitled.

If the persistent recommendations of the authorities are a reliable indication, the provision ofa

mark system was long overdue. The 1867 select committee had recommended the

introduction of such a system, and the 1887 commissioners merely confirmed this finding

twenty years later?O Developed from the work ofAlexander Maconochie on Norfolk Island

in the 1840s, and further refined by Walter Crofton in Ireland, the mark system was designed

to encourage good behaviour and industry in inmates by allowing them some control over the

16 "Rules and Regulations relating to Prisons", QGG, vol. 56, no. 33, 3 June 1892, pp. 291-302. Townleyassumed control of the Prisons Department after Arthur Halloran was forced to resign in the aftermath of the1887 inquiry (see Lincoln, The Punishment of Crime in Queensland, p. 169).

17 Brisbane Courier, 24 June 1892.

18 "Rules and Regulations", 1892, pp. 295-6.

19 "Rules and Regulations", 1892, pp. 296-7.

20SCPD, pp. 1095-7; and BI, p. 701.

Chaptcr 2: New Penology or Nco-Classical Venality'! 96

conditions in which they were confined, and over the duration of their sentences.21 It was

intended to bring about the liberation ofmind and body through the disciplined performance

ofproductive labour. Prison sentences were calculated in terms of a total number of marks,

rather than days. Good behaviour and diligence at work earned prisoners marks, thereby

reducing the time they had left to serve, bad behaviour and malingering had the opposite

effect. Maconochie's original formulation stipulated that prisoners would be able to progress

(or revert) through stages on the basis of their behaviour and industry. The stages were

delineated by the degree oftrust and privilege bestowed upon inmates.

The Queensland mark system, however, did not allow for the transfer ofprisoners between

classes or stages, and thereby ensured that the system ofclassification would remain

determined by seriousness ofoffence and number ofprevious offences, rather than the

demonstrated ability ofoffenders to reform. An inmate's behaviour and industry could only

determine the period ofremission they would receive as their sentences progressed. At the

commencement of their imprisonment, prisoners serving sentences ofone to five years were

entitled to a remission ofone-sixth of the term, those serving five to 'ten years were eligible for

a remission of one-fifth, and those serving sentences in excess often years could earn a

remission ofone-quarter. Failure to accrue marks would diminish the period of remission due

to a particular inmate.22 It would also affect the gratuity owed to an inmate upon discharge.23

The mark system was the most significant innovation in prison management arising from the

1887 board ofinquiry. In fact, apart from this new system for determining remissions and

gratuity allowances, there was little in the post-l890 regime to differentiate it from the earlier

period. The practice ofgranting indulgences to well behaved inmates was prohibited in 1888,

in response to a recommendation of the report. The rules and regulations were also massaged

slightly to account for some ofthe recommendations made in 1887. Some new prisons were

erected or existing structures extended, but not enough to institute a uniform system of

classification in the colony. The colonial secretary himself stated in parliament that he had

21 See, for example, Robert G. Waite, "From Penitentiary to Refonnatory: Alexander Maconochie, WalterCrofton, Zebulon Brockway, and the Road to Prison Reform - New South Wales, Ireland, and Elmira, NewYork, 1840-70", Criminal Justice History, vol. 12, 1991, pp. 85-105; Weiner, Reconstructing the Criminal,pp. 114-22; William James Forsythe, The Reform ofPrisoners, 1830-1900, St Martin's Press, New York,1987, pp. 81-8; and Barry, Alexander Maconochie ofNorfolk Island, ch. 4, and pp. 212-19.

22 "Rules and Regulations", 1892, pp. 298-99.

23 For further details, see chapter 4.

Chaptcr 2: Ncw Pcnology or Nco-Classical Pcnality? 97

considered implementing the system ofclassification stipulated in the Prisons Act, but "as any

reform of that kind meant the expenditure ofa large amount ofmoney, he had not been able to

introduce such a change", only a series of "minor reforms,,?4 The vote allocated for prisons in

1892 was increased by a mere £1,896, sufficient for a few extra staff and an increase in the

contingencies budget. The economy had been suffering from drought since 1890 and, with

the short-term economic outlook appearing menacingly grim, there seemed little chance of the

government significantly increasing expenditure to re-model its penal system.

The 1890 Act itself, however, may be considered a positive step forward in that it

consolidated the existing legislation relating to prisons and gave legislative effect to the

recommendations of the board of inquiry. This new legislation and resulting rules and

regulations were reflective of the establishment ofa more efficient and accountable

administration for Queensland's penal system. Greater clarity in the powers and

responsibilities ofvarious officers and the creation of the new position ofComptroller­

General ofPrisons attest to this fact. But whether the new Act had an appreciable effect on

the actual conditions of imprisonment seems extremely unlikely. The evidence included in

the following chapter suggests that most aspects ofprison life and labour remained fairly

constant for the period under analysis. Part of the reason for this was that there was little

impetus for the government to act swiftly and comprehensively. The absence ofa reform

movement led by an influential pressure group, which could monitor the implementation of

recommendations and actively promote reform, ensured that the report ofthe inquiry would

quickly slide off the political agenda.

Perhaps the most significant transformation in the administration of Queensland's penal

system occurred with the appointment ofCharles Edward de Fonblanque Pennefather (1848­

1922) to the position ofComptroller-General in 1893.25 Pennefather's early career included

the captaincy ofa pearling vessel in the Torres Straits, until he was invited to take command

of the colony's naval surveying schooner in 1879.26 His first post in the criminal justice

system came soon after, when he was appointed police magistrate at Ingham in 1882.

Following the promotion ofWilliam Townley to Sheriff and Inspector of Prisons in 1888,

24QPD, vol. 65, 6 October 1891, pp. 1393-4.

25QGG, vol. 59, no. 106, 12 August 1893, p. 890.

26 For details ofPennefather's career, see Brisbane Courier, 5 Apri11919; and R. Spencer Browne, AJournalist's Memories, Read Press, Brisbane, 1927, p. 45.

Chapter 2: New Penology or Nco-Classical PenaUty? 98

Pennefather then took over as superintendent ofSt Helena.27 He was to remain in this

position until Townley's retirement left vacant the position at the head of the Prisons

Department. A well respected and highly valued public officer, he was to remain

Comptroller-General until his retirement in 1919 at the age of seventy-one, briefly taking

leave in 1911 to serve on an inquiry into penal affairs inWestem Australia.

Pennefather's appointment to the position ofComptroller-General underlined the dominance

of ex-military personnel in the prisons service. Some form ofmilitary experience had long

been seen as a crucial qualification for men expected to enforce the strict regimes of the penal

system.28 Apart from Arthur Halloran, the most senior officers had invariably spent at least

some of their early careers in military service: John McDonald had served with the 93rd

Sutherland Highlanders29 ; Townley had held a commission in the Scotch Militia and British

Army, serving in England and India30; Captain Jekyll (principal gaoler at Brisbane Gaol) had

served in the Royal Marine Light Infantry3 I; his replacement, Major Lewis had spent twenty­

one years in the British Army, during which he was wounded in the Indian Mutiny32; Frank

Schneider (superintendent of Roma Prison) had even won the Iron Cross in 1870 while

serving in the Prussian Army.33 Furthermore, the most common previous occupation amongst

the subordinate staffofwarders was some form of military or police service, or both. Even

Arthur Peirson, Pennefather's replacement as Comptroller-General in 1919, had been an

active member of the Queensland Military Force.34 He was the first senior official in the

27 He had already applied for the post in 1882, following the retirement of John McDonald, but was passedover in favour ofWilliam Townley (see C. Pennefather to Col Sec, 11 March 1882, QSA COLlA332[1218]).

28 According to Ignatieff, the process of colonising the machinery ofpublic order with ex-military men beganfollowing the Napoleonic Wars (see A Just Measure ofPain, pp. 189-90).

29 Finger, The St Helena Story, p. 16; and True Tales ofOld St Helena, p. 11.

30 Observer, 13 May 1909.

31 Week, 4 February 1888.

32 H.J. Gibbney and Ann G. Smith (comp. and ed.), A Biographical Register 1788-1939: Notesfrom theName Index ofthe Australian Dictionary ofBiography, vol. 2, Australian Dictionary of Biography, Canberra,1987, p. 24.

33 Sun, 24 November 1907. The most notable, not to mention enduring, exception was James Ryan who hadspent fifty years from 1865 working in the establishments at Rockhampton, Brisbane, Townsville, Mackay,Stewart's Creek, and St Helena (see Telegraph, 17 May 1915).

34 For details of his career, see Brisbane Courier, 17 May 1933.

Chapter 2: New Penology or Nco-Classical Pcnality? 99

prisons service to have risen from a clerical position in the bureaucracy to the more senior

positions. But while he may have been the first 'career bureaucrat' to assume the top post in

the prisons service, his part-time involvement with the military force demonstrates the value

placed upon experience of the rigid discipline and hierarchical structures ofauthority

characteristic ofmilitary life. It is likely that this recruitment policy was a significant

impediment to the process of implementing a more rehabilitation-oriented penal system in

Queensland - unlike Britain, there was never a reformer, denominational or otherwise, in an

official position capable of influencing penal policy.

The year ofPennefather's appointment was also noteworthy for the opening of the colony's

second penal establishment. Ignoring the 1887 commissioners' recommendation that a new

establishment should be erected in the colony's south east, the authorities pinned their hopes

on the extensions to Brisbane Gaol meeting the increased demand. However, they could not

ignore the evidence regarding the completely inadequate prison accommodation in the

northern region.35 Following Townley's tour of the northern gaols in 1889, it had been

decided that a new penal establishment should be built in Townsville to deal with the

problem.36 Aware that it would be the only establishment erected in northern Queensland for

many years, the authorities were careful to ensure that it would be as large and as isolated as

was considered necessary by choosing a site at Stewart's Creek, approximately nine miles

from Townsville.3? The new institution was eventually completed in January 1893 and

opened a few months later.38 In the ensuing restructure, Townsville was temporarily

preserved as a small receiving prison (its inmates being transferred to the new establishment)

until its closure in 1894; and Mackay Prison was redesignated a police gaol and transferred to

the old lockup premises.39 The change resulted in a considerable saving to the department

35 See also ARS, 1886, QVP, vol. 1, 1887, p. 662. For a description ofTownsville Gaol at this time, seeTownsville newspaper (unknown), March 1889 in visiting justice to Under Col Sec, 15 March 1889, QSACOLlA574 [2502].

36 Townley requested the designs ofcertain New South Wales and Victorian gaols to assist with the planning(see Sheriff and Inspector of Prisons to Parry-Okeden, 9 September 1889, QSA COLlA590 [7985]). Seealso, Evening Observer, 17 February 1890.

37 Sheriff and Inspector of Prisons to Under Col Sec, 23 October 1890, QSA COLlA636 [11668].

38 Government Architect to Under Secretary, Works Department, 30 January 1893, QSA COLlA724 [1257];and QGG, vol. 58, no. 88, 8 April 1893, p. 1017. The female prisoners were transferred from TownsvillePrison in the following year.

39 Townley had argued that Townsville Prison could be usefully maintained as a remand and short termimprisonment institution (Sheriff and Inspector of Prisons to Under Col Sec, 28 July 1892, QSA COLlA705

Chapter 2: New Penology or Nco-Classical Penality? 100

with ten warders being dismissed in the process.40

Connected to Townsville by rail, the Stewart's Creek Penal Establishment occupied a reserve

that was approximately 200 acres in size.41 In 1896, there were three existing cell blocks, all

fanning out from a central yard in the shape ofa semi-circle that was situated just inside the

entrance block.42 A and B wings were reserved for male prisoners. Each was three stories

high with twenty-two cells on each level. Two pairs ofcells on the ground floor were formed

into two punishment cells, leaving a total of sixty-two cells for the individual confinement of

prisoners in each wing. Separated from the male precincts by a twelve-foot-high brick wall,

the female wing was half the length of the others and could accommodate thirty-three

prisoners. In 1898, a central observatory tower was erected inside the semi-circle to

complement the look-out towers atop the stockade walls. As a result, the prisoners occupying

the seven exercise yards between the wings could all be kept under constant surveillance from

different locations.43 At about this time, work began on the two-year task of constructing a

concrete wall to enclose the entire prison compound. The employment for the inmates

consisted of woodcutting, tinsmithing, blacksmith work, barrow making, stone breaking,

oakum picking, pumping water and attending to the various agricultural enterprises in the

outer reaches of the reserve. Pennefather considered Stewart's Creek "the best constructed

prison in the colony" and, in his annual reports, regularly urged the government to erect a

similar prison in the south to replace the ageing buildings on St Helena.44 His protests fell on

deafears, however, and the north was to retain the privilege ofpossessing the most modern

penal establishment in the colony for many years to come.

[9207]; and Sheriff to Under Col Sec, 3 July 1893, QSA COL/A740 [7667]).

40 Sheriff to Under Col Sec, 23 August 1893, QSA COL/A745 [9915].

41 For a detailed description oflife in Stewart's Creek, see the articles by a fanner prisoner in TownsvilleDaily Bulletin, 6, 10, 14,21 February and 2 March 1896. See also Townsville Evening Star, 31 October1907; and Daily Mail, 10 May 1911.

42 Space had been left for the construction of two new cell blocks if required in the future.

43 More exercise yards were erected behind the cell blocks by prison labour in 1911 (see ARC-G, 1913,Queensland Parliamentary Papers (hereafter QPP), vol. 2, 1914, p. 279).

44 ARC-G, 1893, QVP, vol. 1, 1894, p. 693. Pennefather's campaign will be discussed in more detail inchapter eight.

Illustration 2.1: Stewart's Creek Penal Estab1islnnent: Front View, 1913 (ARC-G, 1914)

n;:r-

~~t<,

zfl)

:<:-0fl)b2-o~Qzfl)

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o.......

102

Illustration 2.2: Stew31i's Creek Penal Establishment: View from No.3 Tower, 1913 (ARC­G,1914)

PcnO\oi'"V or 103

Illustration 2.3: Stewart's Creek Penal Establishment: Central Tower and A Wing, Kitchen,and Stores, Offices, etc, 1913 (ARC-G, 1914)

!.J(.q"',f,..",,01'

<~.. '.-~.'.'\.".' .~,7"""" \ I ..~~' .'

, )

104

Illustration 2.4: Stewart's Creek Penal Establishment, 1913 (ARC-G, 1914)

Chapter 2: Ncw Pcnology or Nco-Classical PenaIity? 105

One ofPennefather's first duties upon taking office was to inspect and report upon the

institutions under his control. In doing so, he managed to visit every prison in the colony

(apart from those at Blackall and Nonnanton), failing to uncover any major problems in need

of urgent attention. He did make some important recommendations, however, including the

need for extensions at both Thursday Island and Nonnanton, the construction of a small

prison at Winton and a police gaol at Cairns, the abandonment ofToowoomba Prison, and the

complete renovation of Roma Prison.45 But the desperate economic circumstances of the

early 1890s had resulted in the department's annual budget being reduced by almost £5,000 to

a new figure of£24,022 in 1893-4, making any.substantial alterations impossible in the short

tenn. Not surprisingly, Pennefather was quick to criticise what he perceived as the absence of

"hard labour of a useful and profitable fonn" and assured the colonial secretary that he had

taken steps to remedy the situation.46 At the end of 1893, the colony's penal system consisted

of the two penal establishments at St Helena and Stewart's Creek, prisons at Brisbane, Roma,

Toowoomba, Rockhampton, Thursday Island, Cooktown, Mackay, Nonnanton and Blackall

(Townsville was on the verge ofclosure), and police gaols at Fortitude Valley, Herberton,

Ingham, Ayr, Charters Towers and Tambo. Excluding the six police gaols, the penal system

employed approximately 140 staff, ranging from a part-time messenger to the Comptroller­

General himself.47 St Helena was the largest establishment with over forty personnel working

on the island.

When Pennefather assumed control of the Prisons Department, admissions to prison were

continuing to rise (see figure 2.1).48 By the end of the decade, however, a number of

structural and ideological changes would contribute to a disruption in this colonial trend.

Figure 2.1 shows the pattern ofprison admissions, calculated at a rate per 100,000 of the

population, for the period under analysis. The graph indicates that the vagaries of frontier life

contributed to an initial high rate of imprisonment during the 1860s. As the colony's

population grew and settlement spread, the rate of increase settled. Following the turn of the

45ARC-G, 1893, QVP, vol. 1, 1894, pp. 692-3.

46ARC-G, 1893, QVP, vol. 1, 1894, p. 692.

47 This figure includes visiting justices and surgeons.

48 An uncharacteristically large increase in admissions in 1893 was attributed to the depressed economy andan influx ofdestitute men and criminals from New South Wales and Victoria (see ARC-G, 1893, QVP, vol.1, 1894, p. 691).

Chapter 2: New Penology or Nco-Classical Penality? 106

century, however, prison admissions began to decline markedly.49 This reduction in

admissions is consistent with patterns in other comparable jurisdictions and is reflective ofa

major transformation that was gradually occurring in the penal realm. Around the world,

there was evidence of a decline in serious crime, and a range of new penal strategies were

developed and deployed in this favourable climate.5o The development ofnew institutions

and the introduction ofprogressive new legislation also provided some of the impetus for the

decline in admissions (and these will be discussed in the remainder of this chapter). But it is

likely that changes in sentencing practices and the administration ofcriminal justice played an

even greater role in stimulating the decline. For example, a cursory glance at the main

punishments inflicted on offenders who were summarily convicted in the colony/state's

magistrates courts illustrates the significance of such changes (see figure 2.2). Ofparticular

interest is the increase in numbers convicted but not punished and the dramatic decrease in

offenders being sentenced to imprisonment for non-payment of fines in the 1910s. These

changes alone would have had a noticeable impact on rates ofadmission to prison.5!

49 It should be noted, however, that the apparent sharpness of the decline is exaggerated by a change in recordkeeping. In 1898, the method ofdata collection was altered so that only a single admission was recorded forrepeat minor offenders who received more than one term of imprisonment in a year (ARC-G, 1898, QVP,vol. 4,1899, p. 121). The New South Wales police statistics underwent a similar change from 1896 to 1899(see Finnane and Garton, "The Work ofPolicing", Part 1, p. 65).

50 Finnane, Punishment in Australian Society, pp. 66-7. From the late-1880s to the 1910s, there was adecline in the rate of arrest in Queensland and most of the other colonies/states (see Finnane and Garton,"The Work ofPolicing", pt 1, p. 66. The best known study of the decline is VAC. Gatrell, "The Decline ofTheft and Violence in Victorian and Edwardian England", in VAC. Gatrell, Bruce Lenman and GeoffreyParker (eds), Crime and the Law: The Social History ofCrime in Western Europe since 1500, Europa,London, 1980, pp. 238-337. See also VAC. Gatrell and T.B. Hadden, "Criminal Statistics and theirInterpretation", in EA Wrigley (ed) Nineteenth Century Society: Essays in the Use ofQuantitative Methodsfor the Study ofSocial Data, Cambridge University Press, Cambridge, 1972, pp. 336-96.

51 Finnane and Garton, however, have cautioned against an over-reliance on aggregate statistics, arguing forcloser scrutiny at the local level to determine inconsistencies in sentencing practices (see "The Work ofPolicing", pt 2, p. 60).

Chaptcr 2: Nc\v Penology or Nco-Classical Penality'! 107

Figure 2.1: Admissions to Queensland Prisons, 1859-1939

4000

3500

3000

l-< 2500~

-S 2000

==Z 1500

1000

500

o~ ~ @ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

,,'I:> '\."0 '\."0 '\.'1:> '\." '\.'1:> '\." '\.'1:> '\.'1:> ~ '\.<.) '\.C) '\.C) ~ ~ ~ ~

Year

-.-Total no. of admissions --+- Total no. of admissions per 100,000 population

Source: Queensland Statistics.

Figure 2.2: Punishments Inflicted for Summary Convictions in QueenslandMagistrates Courts, 1890-1920

9000

8000

7000

N be5000

urn r4000

3000

Punishment Type

i 1i11890 111900 D 1910 D 1920 ISource: Queensland Statistics.

Year

Chapter 2: New PeDology or Neo-Classica! PenaUty? 108

Towards a Penal-welfare Complex

As discussed in the introduction, the turn of the century was notable for the development of a

new penality in most Western European and North American jurisdictions, and Britain's

colonial dominions were no exception. The nature and extent of this transformation has,

however, recently become the subject ofdebate. Victor Bailey has criticised Garland's thesis,

arguing that penal culture is more diverse than the latter has suggested.52 He contends that

Garland (and also Martin Weiner) have exaggerated the impact ofpositivism on penal culture

in late Victorian and Edwardian Britain. In particular, they have dodged the fact that the new

ideology had a minimal impact on prison conditions and penal practices, and they have

ignored the influential role ofhumanitarianism, philosophical idealism and ethical socialism

in precipitating change in the penal realm. These three intellectual traditions, Bailey argues,

each contributed towards the creation ofwhat he describes as a "neoclassical philosophy and

practice ofpunishment" which greatly influenced penal policy and practice in Edwardian

B 'ta' 53n m.

It would be premature to suggest that Bailey's work seriously undermines Garland's thesis, for

he, as much as Garland, fails to demonstrate in any detail how these ideological pressures

actually impacted upon prison conditions, concentrating instead on the rhetoric ofreform.

Furthermore, there can be little doubt that in the period identified by Garland a perceptible

and significant change did occur in the penal realm, especially in the way that offending

behaviour was understood by the authorities, and that this change was, in large part,

influenced by positivism. Bailey's argument should be viewed as a complement to Garland's

perspective, revising and extending, rather than overturning it. His observations are

important, moreover, because they demonstrate the importance ofquestioning just how

significantly new discourses in the realm of penal culture actually impinge upon penal

practices and structures - an issue explored throughout this thesis. But, even more important

for the present study, they also suggest caution in assuming that the discourses from abroad

were adopted, developed and applied in the same way and at the same time in colonial

52 Bailey, "English Prisons", pp. 285-324.

53 Bailey, "English Prisons", p. 315.

Chapter 2: New Penolog)! or Neo-Classica] Penality? 109

jurisdictions.

It is difficult for the social historian to gauge just how influential European and north

American penal policies and practices were in the colonies. Nevertheless it is important to

make an attempt at assessing the extent ofknowledge ofpenology in the period and the

possibilities for reform that existed as a result. For Queensland, however, little archival

record remains for us to assess the penological competence of administrators like Pennefather

or Peirson. But there is a substantial body of material that does allow us to sketch a general

picture of the gradually transforming penal culture of the period. This information, mainly

garnered from newspapers and government publications, at least makes it possible to assess

the ignorance, or even recalcitrance, of Queensland's penal administrators. For ifwe can

discern evidence of the development ofa more 'progressive' penology in the newspapers of

the colony/state, or amongst certain members ofparliament or the professional classes, we can

learn much about the willingness ofthe principal decision-makers in the penal realm to ignore

or embrace innovations from overseas. In attempting to identify the possibilities for reform, it

is first necessary to provide some discussion of the political climate in early twentieth century

Queensland, before examining how the development ofpositivist criminology in the

international arena impacted on the administrators, politicians and social commentators of

post-colonial Queensland.

From the 1880s, Australia was the site ofa snowballing critique of laissez-faire conceptions of

the state which gradually gave rise to a "new liberalism" that espoused as its central tenet the

subordination of individual rights to the good of the community.54 It was an ideology that

permeated both liberal and Labor ranks alike, influencing dominant political figures such as

Alfred Deakin, H.B. Higgins, W.M. Hughes and Andrew Fisher. Consequently, "from about

1906 to 1916, ... the politically dominant strategy of class rule in federal politics was an

amelioralist liberalism, articulated by a 'power bloc' ofprotectionist liberals and most Labor

MPS".55 The new liberals envisaged a more interventionist role for the state in improving

54 For details of the Australian situation see, for example, Jo1m Docker, "Can the Centre Hold?: Conceptionsof the State, 1890-1925" in Sydney Labour History Group, What Rough Beast?, pp. 57-88; Stuart Macintyre,The Succeeding Age, 1901-1942: The Oxford History ofAustralia, vol. 4, Oxford University Press,Melbourne, 1986, eh. 5; A Colonial Liberalism: The Lost World ofThree Victorian Visionaries, OxfordUniversity Press, Melbourne, 1991; and his Winners and Losers: The Pursuit ofSocial Justice in AustralianHistory, Allen and Unwin, Sydney, 1985, eh. 3; and Tim Rowse, Australian Liberalism and NationalCharacter, Kibble Books, Melbourne, 1978, chs 1 and 2.

55 Rowse, Australian Liberalism, p. 40.

Chapter 2: New Penology or Neo-Classical Penality? 110

welfare arrangements for needy Australians and in mediating between class protagonists ­

'socialjustice' became the catchphrase of the time. These federal patterns were closely

paralleled in Queensland's transforming political climate. We have already seen that in

Queensland it was Samuel Griffith and his band of liberal supporters who provided the

impetus for penal reform during the 1880s as they tentatively took steps towards increasing

state intervention in the affairs of colonial society.56 But with Griffith's shift to the right early

in the following decade (and his ultimate departure from politics in 1893), it was the labour

movement, along with a reconstituted liberal opposition, that produced a nucleus of

parliamentarians dedicated to effecting social reform.

The need for penal reform had for many years posed an insurmountable conundrum for the

Labor Party and its supporters, especially since the main reformatory technique employed by

the authorities was productive labour. The principle ofless-eligibility had become a

hegemonic feature ofan organisation devoted to protecting the interests of the unionised

worker, and there was residual opposition within the ranks of the labour movement to the

provision of vocational assistance to prisoners through trade instruction. In 1886, a Brisbane

Gaol inmate lamented the existence of this major obstacle to the successful reintegration of

offenders into society:

Most prisoners said [they] would live honestly if [they] could but circumstancesare against them. In some cases the detectives inform employers of theirantecedents and the master seeks an excuse to discharge them. Sometimes theyhave not the moral courage to resist the taunts and sneers of their prison mates.Sometimes they are forced into fresh crime by the labour unions which will notadmit them as members while they will not allow the masters to employ men whoare not members. It takes a newcomer sometimes 2 or 3 weeks to obtain work. Ifhe has no money he must necessarily drift into the society of the only class that iswilling to receive him.57

His comments were well-founded, so much so that in 1895 police constables and

commissioned officers were actually instructed not to pass on details of ex-prisoners to58employers.

56 On Griffith's reform legislation, see R.B. Joyce, II Samuel Walker Griffith: A Liberal Lawyer", in Murphy,Joyce and Cribb (eds), The Premiers a/Queensland, pp. 167-8.

57 Comments ofprisoner Donovan, recorded by Gaoler, Brisbane Gaol, 6 May 1886, Principal Gaoler'sJournal, QSA PRI 1/24.

58 Circular memorandum no. 202, 9 September 1895. Circular Memoranda and General Order Book, 1893­1897. Police Department, Commissioner's Office, QSA A/36276. From that date only an Inspector had thepower to do so at his own discretion. But it is unlikely that the order had the effect of ending the practice in

Chapter 2: New Penology or Nco-Classical Penality? 111

The most common labour movement objections to trade instruction in prisons were: first,

convicted criminals had no right to receive trade instruction at the expense of the state when

free men were left to fend for themselves; and second, competition from prison industries

would contribute towards a contraction in the labour market around corresponding industries,

thus limiting the employment opportunities for free labourers. Yet, from the 1890s onwards,

many Labor Party representatives remained sympathetic to the plight ofprisoners. They were

well aware that the inmate population was almost entirely composed of members of the

working classes, and they were made equally aware of the role ofpunishment in protecting

class interests during the strikes of the early 1890s.59

The imprisonment of a large number of strikers during this turbulent period left a lasting

impression on the minds ofLabor supporters for many years to come.60 A small number of

men had been imprisoned during the maritime strike of 1890, but it was as a result of the

shearers' strikes of 1891 and 1894 that protesting workers were convicted on a scale never

before seen in the colony.61 In a post-mortem on the 1891 strike, Pennefather identified

ninety prisoners as having been incarcerated for offences that included intimidation, arson,

resisting police, conspiracy, rioting, stealing, unlawful assembly, and assaulting police.62

Moreover, Townley attributed the sharp increase in admissions during 1891 to the

imprisonment of militant shearers and the recent appearance of southern criminals intent upon

exploiting the unrest.63 But it was the conviction in May 1891 of twelve men for conspiracy,

along with a few others for sedition and rioting, that immediately provoked a rush ofprotest

all cases.

59 The most detailed study of the shearer's strikes is Svensen's The Shearers' War.

60 For details of the strike prisoners, see Svensen, The Shearers' War; Geoffrey Bolton and Helen Gregory,"The 1891 Shearers Strike Leaders: Railroaded?", Labour History, no. 62,1992, pp. 116-26; and Fitzgerald,From the Dreaming to 1915, pp. 151-3; and 320-4. The reminiscences ofJulian Stuart contain some usefulmaterial on his time in St Helena (Part ofthe Glory: Reminiscences ofthe Shearers' Strike, Queensland1891, Australasian Book Society, Sydney, 1967, pp. 141-67).

61 For a list of prisoners convicted during the maritime strike, see P. Pinnock, Brisbane police magistrate, toCol Sec, 22 November 1890, QSA COLlA638 [12296].

62 "List ofPrisoners who served Sentences for Offences in connection with the Shearers Strike 1891", n.d.,QSA AJ19501. Stuart Svensen, however, has identified over 120 sentenced to terms of imprisonment rangingfrom between two months to seven years, with almost as many remanded but not convicted (The Shearers'War, App. H, pp. 302-4).

63ARS, 1891, QVP, vol. 1, 1892, p. 632.

Chaptcr 2: New PCDology or Nco-Classical Penality? 112

which gradually developed into a detennined campaign for their release. During the

campaign, the "strike" or "conspiracy prisoners" received numerous visits from

representatives of the labour movement, including William Lane, Thomas Glassey, Andrew

Fisher, TJ. Ryan and William Kidston,64 These visits provided such influential figures with

the opportunity to observe first-hand the harsh realities of life in prison.

The result of this enhanced awareness oflife behind bars was an attitude towards prison

refonn that was more in tune with contemporary concerns for the welfare ofprisoners than it

was with their potential threat to the livelihood of free labourers. In this more progressive

milieu, the dilemma ofproviding trade instruction for prisoners was easily overcome.

William Browne, then Labor MLA for Croydon, joined William Hamilton, a fonner

conspiracy prisoner who was eventually elected MLA for Gregory in 1899, in endorsing the

practice of teaching trades to prisoners.65 Yet their desire to protect free labourers from

competition was still in evidence when they argued that prison-made goods should only be

made available for sale to government departments - a goal that was, in any case, quite

consistent with established government policy throughout the colonial and post-colonial

period. 66 Other Labor members followed suit. In espousing the principles ofZebulon

Brockway's Elmira system in 1906, William Mitchell, MLA for Maryborough, argued that

simply providing trade instruction was not enough to refonn criminals.67 He advocated a

M ISee, for example, TJ. Ryan to Col Sec, 15 August 1892, QSA COL A706 [9881]; and T. Glassey to ColSec, 16 November 1892, QSA COLlA716 [13553]. For an example ofa petition forwarded on the prisoners'behalf, see Govemor to Acting Chief Sec, 19 June 1897, QSA HOM/A10 [7993].

65 The Westem Australian prison reformer, F.C.B. Vosper, was another labour radical who had beenimprisoned in Queensland in the early 1890s and then, profoundly influenced by this experience, continued tocampaign on behalf ofprisoners until his premature death in 1901. See, for example, Australian DictionaryofBiography, vol, 12: 1891-1939, Melbourne University Press, Melbourne, 1990, pp, 334-5; Stevenson,Fremantle Prison in the 1890s, p. 133; G.C. Bolton, A Thousand Miles Away: A History ofNorth Queenslandto 1920, Australian National University Press, Canberra, 1970, pp. 194-7; and Thomas and Stewart,Imprisonment in Western Australia, pp, 48-54.

66 QPD, vol. 88,22 October 1901, pp. 1393-5.

67 QPD, vol. 97, 13 November 1906, pp. 1649-50. The Elmir~ Reformatory in New York was an institutionfor fIrst-time male offenders aged between 16 and 30, where inmates were subject to a form of indeterminatesentence in which their release date was determined by their progress through its system (although no inmatecould be confmed for longer than the maximum term prescribed under the law for their offence), The Elmiraregime was renowned for tailoring its programme to address the particular requirements of individualoffenders, implementing new methods ofrehabilitation designed to transform the character of each inmate,Its apparent success attracted widespread acclaim, but it should be remembered that the institution did notaccommodate habitual or hardened offenders, focussing instead on those offenders who were the 'easiest' toreform (see, for example, Read Murphy, Prison Reform, Melville and Mullen, Melbourne, 1906, pp. 7-15).For secondary work on Elmira, see, for example, Waite, "From Penitentiary to Reformatory", pp, 96-100.William Townley, however, had been critical of the Elmira system during the early 1890s (see ARS, 1891,

Chaptcr 2: Ncw Pcnology or Nco-Classical Penality? 113

system of shorter sentences for prisoners who had demonstrated a capacity for reform. In

1910, Vincent Lesina, former Labor MLA for Clermont, even argued that St Helena's

prisoners deserved higher rates of remuneration for their work,68

In the decade following federation, Queensland experienced a transition to a three party

system in which anti-conservative alliances between the Labor and Liberal parties dominated

the political scene. In these years, the moderate reformer William Kidston rose above all

other political leaders in the struggle to influence Queensland's development. Initially an

ardent supporter of the Labor Party, he gradually made the transition to a position somewhere

between liberalism and social democracy, a position that often led him to promote the

formation ofpragmatic alliances between political rivals to achieve specific ends.69 During

his terms in office, first as Treasurer in the Morgan-Browne government and later as Premier,

Kidston was to implement a wide-ranging reform programme. Better known for their

achievements in the area of electoral reform and their dramatic resurrection of the

government's financial position, the Kidston-dominated ministries were also heavily involved

in the introduction of social welfare legislation in areas like workers' compensation, old age

pensions and, as we will see later, in the realm ofcriminal justice.

Following Kidston's departure from politics in 1911, the succeeding Liberal-conservative

coalition continued to effect some significant reforms in the criminal justice sphere. In the

Denham ministry (1911-15), it was personalities like the Secretary for Public Instruction,

James Blair, and the Home Secretary, John Appel, who oversaw some of the most important

changes in the administration of the criminal justice system. From 1915, Queensland

experienced its first real Labor Government. But the likelihood of far-reaching reform in the

area ofpenal-welfare quickly diminished. Labor's pre-War emphasis on social

experimentation and welfarism had shifted under TJ. Ryan to a position more concerned with

the material advancement of the State and its citizens.7o

QVP, vol. 1,1892, pp. 633).

68 QPD, vol. 107, 18 November 1910, p. 2182. He was supported by Vernon Winstanley, Labor MLA forCharters Towers.

69 DJ. Murphy, "William Kidston: A Tenacious Reformer", in Murphy, et ai, The Premiers a/Queensland,p.228.

70 For a comprehensive analysis of this period, see Ross Fitzgerald and Harold Thornton, Labor inQueensland: From the 1880s to 1988, University of Queensland Press, St Lucia, 1989, chs 2-3. In therelated area ofpolicing, the Labor governments of the inter-war period were, in fact, extremely hard on

Chapter 2: New Penology or Neo-Classical Penality? 114

With the ideologies of social democracy and liberalism dominating a political climate in

which the possibilities for social reform could exist, the final ingredient necessary to bring

about change in the penal realm was to come fromoverseas - the birth of a discipline of

criminology. In late nineteenth century Europe and Britain, there developed a new way of

looking at crime and criminals that was markedly different to the discourses of the previous

era in which doctrines of free-will and individual responsibility dominated penal thought and

practice.7! The conditions for the emergence ofthis new science ofcriminology were created

by the proliferation of statistical data in the nineteenth century, the development of the

discipline ofpsychiatry, and the existence of the prison as the institutional laboratory where

the objects of the new science could be observed, analysed and experimented upon.72 David

Garland has identified a number ofkey characteristics of the new discipline. It professed to

be a scientific approach to crime, using the techniques ofobservation, measurement and

inductive reasoning to develop factual knowledge ofoffenders. It was focused on the

individual offender, its fundamental objective to distinguish between criminals, or potential

criminals, and law-abiding citizens. It sought to identify the causes ofcrime, and it

"addressed itself to the investigation ofa new, pathological phenomenon - 'criminality'­

which it deemed to be the source ofcriminal behaviour".73 With the development ofpositivist

criminology, the objective ofpunishment was not to bring about a moral transformation in the

offender, but to cure an illness, and the prison was to become, in the borrowed words of

Comptroller-General Pennefather, "a hospital for the treatment ofmoral diseases".74

working class protest, and there were no moves to limit the powers of the police (see DJ. Murphy (ed), TheBig Strikes: Queensland, 1889-1965, University of Queensland Press, St Lucia, 1983, esp, ch. 10; RaymondEvans, The Red Flag Riots: A Study ofIntolerance, University of Queensland Press, St Lucia, 1988; andFinnane and Garton, "The Work ofPolicing", pt 2, pp. 62-3).

71 For informative accounts of the early development of criminology, see Piers Beirne, InventingCriminology: Essays on the Rise of'Homo Criminalis', State University of New York Press, Albany, 1993;David Garland, "The Criminal and His Science: A Critical Account of the Formation of Criminology at theEnd of the Nineteenth Century", British Journal ofCriminology, vol. 25, no. 2, 1985, pp. 109-37; DavidGarland, "Of Crimes and Criminals: The Development ofCriminology in Britain", in Mike Maguire, RodMorgan and Robert Reiner (eds), The Oxford Handbook ofCriminology, Clarendon Press, Oxford, 1996, pp.17-68; and Pasquale Pasquino, "Criminology: The Birth of a Special Savoir: Transformations in PenalTheory and New Sources of Right in the Late Nineteenth Century", Ideology and Consciousness, vol. 7,1980, pp. 17-32 (transl. by Colin Gordon). For the situation in America, see Nicole Halm Rafter, "CriminalAnthropology in the United States", Criminology, vol. 30, no. 4, 1992, pp. 525-45.

72 Garland, "The Criminal and His Science", pp. 110-7.

73 Garland, "Of Crime and Criminals", p. 40.

74 ARC-G, 1916 in QPP, voL 2,1917, p. 445.

Chapter 2: New Penology or Neo-Classical Penality? 115

The criminological movement received its initial impetus from the publication of Cesare

Lombroso's L'Uomo Delinquente in 1876, and quickly developed into a flurry of activity that

led to the "publication ofhundreds of texts, the formation ofdozens of national and

international congresses, conferences and associations, and the assembly of an international

social movement which pressed the claims ofcriminology upon the legislatures and penal

institutions of virtually every nation".75 Practising a distinctive brand ofcriminal

anthropology that relied heavily upon biological determinism, the "Italian school", as

Lombroso and his followers became known, immediately came to the fore in the development

of the discipline. The advent of criminal anthropology shifted the focus away from the study

of criminal acts to criminal behaviour, and culminated in a parallel shift from moral

explanations for crime to biological ones. The Italian school represented the extreme in

positivist criminology in its quest to identify and classify the various forms ofphysical

deficiency that lead to crime. Robert Nye has identified its unifying features: "the

preponderant role ofhereditary factors in criminal behaviour, the existence of identifiable and

morphological characteristics in criminals, and the conviction that various pathological

influences - atavism, degeneration, epilepsy, moral imbecility - controlled the appearance of

'criminal' physiological manifestations".76 The school was not completely blind to the

possibility of environmental influence on criminal behaviour, however. Enrico Ferri, for

example, believed that there were social and economic determinants ofcrime, although

hereditarianism remained central to his work.

The Italian school did not have everything its own way for long, and after a briefperiod at the

head of the infant discipline, it soon came under attack from others who were deeply sceptical

of its emphasis on biological determinism.77 The French school, in particular, was disturbed

by the fatalistic notion of the "born criminal", destined for a life of crime and beyond

reclamation, arguing instead for a sociological and environmental approach to the study and

75 Garland, "The Criminal and His Science", p. 109.

76 Robert A. Nye, "Heredity or Milieu: The Foundations ofModem European Criminological Theory", Isis,vol. 67, no. 238, 1976, p. 336. See also, Daniel Pick, "The Faces of Anarchy: Lombroso and the Politics ofCriminal Science in Post-Unification Italy", History Workshop Journal, no. 21, 1986, pp. 60-86.

77 The intellectual disputes between the Italian and French criminological fraternities have been documentedin Nye, "Heredity or Milieu", pp. 335-55. See also Robert A. Nye, Crime, Madness and Politics in ModernFrance: the Medical Concept ofNational Decline, Princeton University Press, Princeton, NJ, 1984; and RuthHarris, Murders and Madness: Medicine, Law, and Society in the fm de siec1e, Clarendon Press, Oxford,1991.

Chapter 2: New Penology or Nco-Classical Penality? 116

treatment ofcrime. Its assault on the Italian school's methodology undermined the dominance

ofLombroso and his followers by the tum of the century, leaving the way clear for a more

"social interpretation" ofcriminal behaviour.78 Nevertheless, in a lengthy chapter on

"Criminal Anthropology", prepared soon after these formative debates, the well-known

American penologist, Frederick Wines, was prepared to overlook the glaring methodological

deficiencies that characterised this particular branch of the discipline. He argued that the

missionary zeal of the criminal anthropologists was to be commended because it was in no

small part due to their efforts that attention was gradually being directed onto the offender as

the object ofcriminological inquiry.79

While the Italian school was particularly influential in the development ofcriminology as a

distinct discipline, and in popularising the criminological movement generally, its role in the

development of British criminology should not be overestimated. David Garland, for

example, has emphasised the formative role of the psychiatric profession in the early

development ofcriminology in Britain. 8o The theoretical perspectives and practical

engagement with the criminal population that characterised British psychiatric involvement in

criminology Was fundamentally different to the anthropologically-based Italian school.

Although it has yet to be analysed in detail, the role of established medicine in the

development ofcriminology in the Australian context may well have been just as influential

as in Britain.81 If this is indeed the case, then the late development ofpsychiatry in

Queensland (discussed below) may well have been a significant impediment to the earlier

establishment of 'new criminological' concepts and perspectives and, ultimately, a penal­

welfare ideology.

But while the discipline of criminology continued to advance in Europe and America, in

Australia it developed in a fairly ad hoc fashion until after World War TWO.82 In New South

78 For an analysis of these early debates, see Nye, "Heredity or Milieu", pp. 335-55.

79 Frederick Wines, Punishment and Reformation: An Historical Sketch ofthe Rise ofthe PenitentiarySystem, Swan SOlmenschein, London, 1895, p. 263.

80 David Garland, "British Criminology Before 1935", British Journal ofCriminology, vol. 28, no. 2,1988,pp.3-7.

81 The discussion by Finanne in Punishment in Australian Society, ch. 3, would suggest that this was the case.See also Garton, "The Rise of the Therapeutic State", pp. 378-88.

82 David Brown and Russell Hogg, "Essentialism, Radical Criminology and Left Realism", Australian andNew Zealand Journal ofCriminology, vol. 25, 1992, pp. 204-5. For a succinct account of the early

Chapter 2: New Penology or Neo-Classical Penality'! 117

Wales, the development ofcriminology during the earlier era was championed by its

Comptroller-General, Frederick Neitenstein. He demonstrated a keen understanding of the

intricacies of the most important innovations from overseas, and sought to implement these in

the New South Wales penal system between 1896 and 1909.83 A regular correspondent with

international experts, Neitenstein was arguably the most important conduit for criminological

ideas in the colonies. His "authority in criminological opinion and penal administration was

unchallenged in Australia, with the New South Wales system being regarded by

contemporaries 'as the model ofPrison management in the Commonwealthtt ,.84 In

implementing his programme of penal reform, Neitenstein enjoyed the luxury of significant

support from a wide array ofpoliticians and social reformers.85

In the other colonies/states, non-government organisations and individuals also began to assert

themselves in the debates over penal reform. In Victoria, a Criminological Society was

established by the Reverend Charles Strong in the 1890s.86 While speaking on behalf of the

Society, Strong advocated shifting the focus of punishment from general deterrence to the

reformation ofoffenders, arguing that "the best scientific and moral forces" should be utilised

in the reformation process.8? A few years later a Victorian police magistrate, Read Murphy,

published a treatise on prison reform that incorporated many of the recent intellectual shifts in

criminological thought.88 He focussed, for example, on Brockway's Elmira system, the

findings of the Gladstone Committee (1895) in Britain, and the use ofmedication to cure

inebriate offenders. But the principles of classical penology were still in evidence in the text,

especially in his condemnatory comments regarding the concept of indeterminate sentencing

and his strong s~pport for making prisons self-supporting institutions - the latter was also a

development of criminology in Australia, see Finnane, Punishment in Australian Society, pp. 65-83.

83 The most detailed accounts ofNeitenstein's activities may be found in Stephen Garton, "Frederick WilliamNeitenstein", pp. 51-64; Rarnsland, With Just But Relentless Discipline, esp. ch. 5; and Semack Cruise, PenalReform in New South Wales.

84 Finnane, Punishment and Australian Society, pp. 68-9.

85 Garton, "Bad or Mad?", p. 97.

86 See C.R. Badger, The Reverend Charles Strong and the Australian Church, Abacada Press, Melbourne,1971, pp. 150; and 314-22; and Finnane, Punishment in Australian Society, pp. 70-1.

87 Reverend Charles Strong, The Criminology Society ofVictoria: Objects ofa Criminology Society, Paperread at a General Meeting of the Society on the evening of the 9th May 1902, Fraser and Jenkinson,Melbourne, 1902, p. 7.

88 Murphy, Prison Reform.

Chapter 2: New Penology or Nco-Classical PcnaHty? 118

feature of Strong's lecture.

In Western Australia, it was a core group ofjournalists and politicians who began to campaign

for penal refonn in the late 1890s, consistently espousing the principles of the new

criminology.89 Their efforts were rewarded in 1899, when an inquiry into the Western

Australian penal system was held. Although the inquiry did not result in an immediate change

in penal philosophlo or in significant refonn of the penal system itself, its report

demonstrates how European and American criminological thought was beginning to influence

the colonies, containing numerous references to the work ofcriminologists such as Lombroso,

Ferri, Havelock Ellis, W.D. Morrison and even the medical officer of the Adelaide and

Parkside lunatic asylums in South Australia, Dr W.L. Cleland.9!

Cleland's intervention in the penal realm was part of a broader trend in which the medical

profession was becoming increasingly involved in the arena ofpenal administration,

threatening the traditional role ofjurists.92 Arguments were being made for the greater

involvement ofpsychologists and other medical specialists in the study and treatment of

criminal and mental defective populations. Cleland had earlier delivered an address to the

Criminological Society ofSouth Australia in which he discussed the problem of treating "the

Chronic Insane, the Habitual Offender and the Endemic Unemployed" .93 Drawing heavily on

the work ofcriminal anthropology in his search for some mental or physical defect cornmon

89 These men included Frederick Vosper, Thomas Walker, J.M. Drew, and B.S. Emmerson. For details, seeFinnane, Punishment in Australian Society, pp. 71-2 and 150-2; Stevenson, Fremantle Prison in the 1890s,pp. 6-9, and ch. 4; and Thomas and Stewart, Imprisonment in Western Australia, ch. 3.

90 Thomas and Stewart, Imprisonment in Western Australia, p. 82.

91 "Report of the Commission appointed to inquire into the Penal System of the Colony" in WesternAustralian Votes and Proceedings, no. 16, 1899.

92 See, for example, J.V. McCreery, "The Psychology of Crime", Transactions o/the Australasian MedicalCongress, vol. 3, 1908, pp. 263-6; and Richard J.A. Berry and L.W.G. Buchner, "The Correlation of Size ofHead and Intelligence as Estimated from the Cubic Capacity ofBrain of355 Melbourne Criminals",Proceedings o/the Royal Society o/Victoria, vol. 25, pt 2, 1913, pp. 229-53. Berry's study was reported inthe Queensland press, see Daily Standard, 14 August 1913. For further details, see M. Cawte, "Craniometryand Eugenics in Australia: RJ.A. Berry and the Quest for Social Efficiency", Australian Historical Studies,no. 86, 1986, pp. 35-53; Stephen Garton, "The Rise of the Therapeutic State: Psychiatry and the System ofCriminal Jurisdiction in New South Wales, 1890-1940", Australian Journal o/Politics and HistOlY, vol. 31,no. 3, 1986, pp. 378-88; and Finnane, Punishment in Australian Society, pp. 98-107.

93 W.L. Cleland, A Comparative Study o/the Chronic Insane, the Habitual Offender, and the EndemicUnemployed, With a View to Treatment, Webb & Son, Adelaide, 1897. On the South Australian society, seeFinnane, Punishment in Australian Society, pp. 148-9.

Chapter 2: New Penology or Nco-Classical Penality? 119

to all three, Cleland contended that

In the chronic insane is seen a body suffering from long-standing brain disease.In the habitual offender is seen a congenitally inferior brain, ill-nourished by animperfect circulatory and respiratory apparatus. In the endemic unemployed isseen a brain and body enfeebled by generations of chronic mal-nutrition. In thelatter two there is nearly always superadded the effects of a bad heredity.94

His suggested treatment foreshadowed the remedies prescribed by the advocates ofeugenics

in the early decades of the twentieth century: separate them from the rest of society; subject

them to the influence ofa disciplinary regime; and select appropriate employment for them,

preferably located in the country. Even stalwart defenders ofclassical criminology in South

Australia, such as Justice Bundey, were being forced to confront this rising tide ofpositivism

in the 1890s. The concept of "instinctive criminality" may have been difficult for such men to

embrace, but the corollary arguments for the indeterminate sentencing ofhabitual offenders

were received more favourably.95 Some of the methods advocated by supporters of scientific

criminology received support from more conservative criminal justice reformers who had

become disillusioned with the penal practices of the past.

Queensland officials such as Pennefather and Peirson could not be regarded as accomplished

penologists or distinguished students of the new discipline. Rather, they possessed an eclectic

knowledge of the influential theories of the time, and this knowledge occasionally informed

their brand ofpenological pragmatism. Their information came from newspaper articles,

periodicals, foreign publications, tours overseas, visiting international experts and dignitaries,

and intercolonial and international correspondence.96 Much was borrowed from Neitenstein.

Pennefather's long-standing campaign for legislative reform and the establishment of separate

institutions for different categories ofoffender was spurred on by Neitenstein's writings and

94 Cleland, A Comparative Study, p. 7.

95 See W.H. Bundey, "The Punishment of Criminals", Proceedings ofthe Australasian Associationfor theAdvancement ofScience, vol. 5, 1893, pp. 539-56. William Henry Bundey (1838-1909) was a lawyer andpolitician who attained the office of South Australian Attorney-General between 1878 and 1881. Between1884 and 1903 he was a judge in the Supreme Court of South Australia. For more details, see AustralianDictionary ofBiography, vol. 3, 1851-1890, Melbourne University Press, Melbourne, 1988, pp. 296-7.

96 For example, copies of Edmund Du Cane's Account ofthe Manner in which Sentences ofPenal Servitudeare carried out in England were ordered from overseas in 1883 (see Memorandum to Col Sec, 18 May 1883,QSA COL/A360 [2474]); and the views of William Tallack frequently appeared in the annual reports (seeARC-G, 1907, QPP, vol. 2, 1908,p. 893; andARC-G, 1916, QPP, vol. 2,1917, p. 445).

Chapter 2: New Penology or Nco-Classical Penality') 120

activities.97 By drawing on this intercolonial expertise, the Queensland administrators were

also able to learn much about the rapidly changing international criminological environment.

In the colonies, it had become something ofa tradition for senior penal administrators to

travel abroad at some stage in their careers, The knowledge acquired from these tours was

freely exchanged between jurisdictions, frequently informing penal practices at home.98 For

example, George Duncan, Inspector General of Penal Establishments and Gaols in Victoria,

travelled overseas in 1877; and Frederick Neitenstein made an extremely productive tour of

Europe and America in 1903-4, visiting numerous penal-welfare institutions and interviewing

many experts in the field. 99 Pennefather was no exception. In 1908, he toured prisons in the

eastern Australian states, as well as Natal and Britain, reporting on recent developments in. 100pnson management.

An indication of the pervasiveness of the new science ofcriminology - in particular, its

biological determinist strand - was the willingness of the Queensland authorities to participate

in a tum of the century international exchange of information regarding Australian

criminality. In 1898, Chief Secretary TJ. Byrnes received what must' have seemed an unusual

request for copies ofphotographs ofQueensland's most notorious criminals, along with

physical descriptions of each and details of their criminal careers. IOl Examples from the

following categories were specifically asked for: sexual criminals; prostitutes who were also

criminals; burglars, housebreakers, and other thieves who were regarded as dangerous; sneak

thieves, pickpockets, speilers, and the like; persons guilty ofdangerous assaults, including

larrikins; and finally, criminals convicted ofhomicide. The request came from Marshall Lyle,

97 See his annual reports from 1896 to 1915.

98 Finnane, Punishment in Australian Society, pp, 69-70 and 73-4.

99 For details of Duncan's trip, see Lynn and Armstrong; From Pentonville to Pentridge, pp. 100-1. See also,Neitenstein's detailed report on his tour: "Report by the Comptroller-General ofPrisons on Prisons,Reformatories, Asylums and other institutions recently visited by him in Europe and America; withsuggestions and recommendations upon the subject of the prevention and treatment of crime", Joint VolumeofPapers Presented to the Legislative Council and Legislative Assembly ofNew South Wales, vol. 2, 1904,pp. 117-268.

100 Telegraph, 9 January, 1909; and ARC-G, 1908, QPP, session of 1909, p. 523. Unfortunately his reportcannot be located. Late in 1885 Arthur Halloran took time to visit a number of colonial institutions,including Pentridge, Melbourne, Castlemaine, Maryborough and Ballarat gaols in Victoria and Goulbum andDarlinghurst gaols in New South Wales (see ARS, 1885, QVP, vol. 1, 1886, p. 586).

101 For details of Bymes' career, see Rosemary Gill, "Thomas Joseph Bymes: The Man and the Legend", inMurphy, Joyce and Cribb (eds), The Premiers ofQueensland, pp. 176-91.

Chapter 2: New Penology or Nco-Classical Penality? 121

a prominent Melbourne solicitor and enthusiastic advocate ofphrenology who had become

well known for his involvement in the defence of the infamous murderer Frederick Deeming

in 1892. 102 Lyle stated that he was gathering the information for Professor Lombroso after the

last International Criminological Congress had resolved to collect data from each 'civilised'

nation so that it could be analysed in Turin. The enthusiasm of the Queensland authorities for

research ofthis nature may be gauged from their generous reply - seventy-five photographs

(including four Aborigines - two murderers and two rapists), categorised in accordance with

Lyle's taxonomy, were forwarded in response to the original request for thirty. Apparently,

Lyle received a favourable response from each of the other colonies as well.

For Queensland, however, this sort ofdramatic evidence is exceptional. Only by

painstakingly assembling an array of fragmentary evidence is it possible to shed more light on

the way in which ofpositivist criminology influenced the transforming penal culture of the

period. This evidence suggests that positivist criminology was growing in appeal in the early

years of the twentieth century, but that it was far from gaining widespread acceptance. Some

of the better-informed parliamentarians were aware of the work of the positivist school.

Vincent Lesina, for example, in his lengthy speech in favour of the abolition ofcapital

punishment, frequently made reference to the importance of treating criminals in a scientific

manner, citing Lombroso, Ellis and others. l03 Visiting speakers occasionally delivered

lectures on the new science of criminology and its sub-discipline criminal anthropology in the

community halls of the colony/state. 104 Newspapers frequently contained articles on

personalities like Lombroso, as well as expositions on the intricacies ofpositivist

criminology.105 There is even evidence that the idea of the prison becoming a "moral

hospital" also existed amongst the subordinate employees of the penal system. Ex-warder

George Francis was certainly of the opinion that the habitual criminal should be treated as

102 J.S. O'Sullivan, A Most Unique Ruffian: The Trial ofF.B. Deeming, Melbourne, 1892, F.W. Cheshire,Melbourne, 1968; and Michael Cannon, The Woman as Murderer: Five Who Paid With Their Liv~s, Today'sAustralia, Melbourne, 1994, esp. pp. 75-6 and 118-23. His involvement in the campaign for the abolition ofcapital punishment led to his association with the Criminological Society's Reverend Strong (ElaineWilliams, "And Your Petitioner Humbly Prays...": Marshall Lyle and the Abolitionist Campaign in Victoriain the 1890s, BA Hons thesis (criminology), University of Melbourne, 1992, p. 10).

103 1QPD, vo . 82, 27 September 1899, pp. 149-60. See also QPD, vol. 112,24 October 1912, pp. 1937-8.

104 See, for example, Evening Observer, 6 June 1892; and Brisbane Courier, 13 September 1893.

105 b dSee, for example, Truth, 16,23,30 Octo er an 6 November 1904, and 31 October 1909; Worker, 16May 1903; Week, 29 April 1892; Brisbane Courier, 25 April 1892 and 17 March 1909; and Daily Standard,11 April 1914.

Chapter 2: New Penology or Nco-Classical Penality'? 122

though suffering from a disease. 106 Even the social reforming Methodist, Reverend Walter

Lilley, was drawn to comment on the common physical appearance of the St Helena inmates

he encountered on a visit to the island, leading him to regard hereditary influences as

important factors in the reproduction of criminals. 107 The impact ofpositivist criminology

was also reflected in Queensland's infant eugenicist movement prior to World War One.

Douglas Price, for example, questioned the efficacy of imprisonment, arguing that its

persistent failure to 'cure' the prisoner and 'protect' the public demonstrated the urgent need for

a reappraisal of its continued use. 108 Earlier, Dr A. Jefferis Turner had called for the

separation ofcriminals into two classes - those capable of reformation, and those who were

tlO9no.

Reflecting what was possibly the most dominant new perspective in the literature ofpost­

colonial Queensland, the labour movement press offered an explanation for criminality that

was based on a combination ofboth hereditarian and environmental factors. It was a

perspective that clearly owed much to the work of Ferri and Morrison, and the more

progressive labour movement press was possibly its most vocal advocate. For example, in

1913 the Daily Standard cautioned

we should not blame a man for the shape of his skull or the balance of his brainany more than we should blame a man for being color blind or hunch-backed, orfor lacking a musical ear.... The time is fast coming when we shall recognise thatit is the crime and not the criminal that must be attacked, that it is not Christianjustice to punish the individual when he, after all, is not really responsible, that itis to our interests to realise that crime is a disease largely due to a bad socialsystem, and finally that it is our duty to restrain the wrong-doer and eradicate thewrong by means of scientific and social reform. Science is leading the way.IIO

In campaigning against capital punishment, the Worker adopted an identical position:

Human nature is many~sided. One of its outstanding peculiarities is its ready

106 G.F. Francis, Queensland: The State's Stagnation, the Cause and Remedy, E.A. Howard, Brisbane, 1905,pp. 11-2.

107 Rev W.R.O. Lilley, Reminiscences ofLife in Brisbane, and Reflections and Sayings, W.R. Smith &Patterson, Brisbane, 1913, p. 177. Lilley was a minister of the United Free Methodist Church.

108 Douglas Price, "Should Prisons be Abolished?", Forerunner, no. 7, 1916, pp. 30-2.

109 He advocated permanent segregation for this latter category of "innate" criminals (A. Jefferis Turner,"Eugenics", Modernist, no. 10, 1913, p. 7).

110 Daily Standard, 30 September 1913.

Chapter 2: New Penology or Nco-Classical Penality? 123

responsiveness to its environment. Potential virtue and wickedness exist in all ofus at infancy. To what degree of greatness or baseness they will develop dependsentirely upon hereditary limitations and the quickening influences ofenvironment. 111

The task ofgovernment, it continued, was to eliminate the unfit by segregating them from the

remainder of the population, and to improve the environment by removing negative influences

like the slum and sweatshop.

Yet this evidence ofa gradually transforming ideological climate in the area ofcrime and

punishment in Queensland fails to obscure the resilience ofthe basic tenets ofclassical

criminology. As demonstrated above, there is much evidence to show that the 'new

criminological' explanations were regarded as an encouraging departure from past approaches

to crime and punishment, promising to transform Queensland's penal culture in the long-term.

But there is little evidence to suggest that in the period leading up to 1920 the goal of

explaining criminal behaviour, and devising appropriate treatments for particular criminals,

actually supplanted the notion that 'the punishment should fit the crime' in other than the

minds of a few converts to the new discipline ofcriminology. 112 In the colonial context little

impetus was generated for the state to invest in a modified penal apparatus, capable of

implementing the new techniques of individualisation being promoted overseas. I 13 The

comments ofPennefather in his annual reports, for example, suggest that he was well aware

of the major changes in international penology, but he was unable to implement them owing

to the financial constraints imposed upon his department. Significant change would be a long

time in coming. Nevertheless, possibilities for progressive change were created, and the

period is noteworthy for the introduction ofa number ofnew penal strategies, at least partially

111 Worker, 9 October 1913.

112 A powerful symbol of the resilience ofclassical penality in Queensland during this period was thesuccessful passage ofan Act to establish a Code ofCriminal Law in November 1899. In preparing a draftcode for the consideration of a royal commission and the approval ofParliament, Samuel Griffith had as hismain intention "to eliminate as far as possible the possibility of legal procedures under provisions known tocommon law but not expressly mandated by the legislature of Queensland" (Finnane, "Penality and Policy",p. 87). Firmly in the tradition ofBenthamism, it was a grand exercise in fIrst documenting and thenrationalising the processes of the criminal law as it then operated in Queensland. The result was one of themost comprehensive criminal codes ever developed during the nineteenth and early twentieth centuries. Fora biography of Griffith and a discussion ofhis codification of the criminal law, see Joyce, Samuel WalkerGriffith.

113 Peter Oliver has reached a similar conclusion in his study of the Ontario penal system, arguing that thesmall number and intellectual isolation ofCanadian prison administrators limited the impact ofbiologicalpositivism (see Oliver, Prisons and Punishments in Nineteenth-Century Ontario, p. 315).

Chapter 2: New Penology or Neo-Classical PenaUty? 124

inspired by the new focus on the individual characteristics of offenders.

New Strategies

By the late nineteenth century there had developed a diverse range ofprivately managed

institutions for the treatment of the colony's social outcasts. These facilities combined with

the existing state-run penal and charitable facilities to create a broad network of penal-welfare

institutions for the reception of criminal, destitute and mentally ill men and women. In the

case ofwomen, for example, by the early 1890s there were benevolent societies and lock

hospitals in many of the larger towns, and Brisbane had a lock hospital, Female Refuge,

Industrial Home and Lying-in Hospital specifically for "fallen" and destitute women. I14 As

discussed in chapter four, a number ofdenominational homes were also established for the

reception ofwayward women. The "carceral archipelago" for women was completed in 1903

when the ailing Toowoomba Prison was finally closed and a new modem female division in

Brisbane Prison was opened as its replacement. In 1890 the Society for the Prevention of

Cruelty began to broaden its surveillance activities to encompass the protection of children. IIS

Its secretary Joseph Whiting quickly attracted police and public attention by demonstrating an

overzealous attitude to his work. Under his direction, the society gradually established itself

as a sort of "moralpolicing" body, maintaining surveillance over the lives of many of

Brisbane's impoverished and working class families, and frequently intervening in their affairs

when it was considered that children were in "dangertl•116

Although not directly involved in the penal process, these and other organisations did provide

assistance to potential or former offenders in the course of their regular duties. The Charity

Organisation Society (COS), for example, had as its primary role the identification ofworthy

114 For a complete list of organisations involved in charity work with women, see correspondence to BaronessBurdett-Coutts regarding philanthropic activities being undertaken by women in Q1d (for the Chicagoexhibition of 1893), QSA COL/A708 [10717]; and correspondence, printed reports and newspaper clippingsre benevolent societies and institutions, QSA COL/290-1. For details of the Brisbane Industrial Home, seeBrisbane Courier, 30 August 1884.

115 J. Whiting to Col Sec, 31 December 1890, QSA COL/A644 [0003]; Evening Observer, 6 January 1891;and correspondence reports and clippings re Queensland Society for the Prevention ofCruelty, 1899-1928,QSA COL/427.

116 After only a few years the state began to get squeamish about his activities, threatening to discontinue thesociety's annual grant if its arbitrary methods were not curtailed (see the collection of correspondenceregarding the charges against Whiting in J. Graham to Principal Under Sec, QSA COL/A793 [7360]).

Chapter 2: New Penology or Nco-Classical Pcnality? 125

recipients ofcharitable relief. In so doing, it distinguished between two separate categories of

indigence: fldistress due to misfortune", encompassing sickness, old age, and wife desertion;

and "distress due to misconduct", usually the product of intemperance, laziness or crime and

dishonesty. I I? It was as members of this latter, 'less respectable' category that some ex­

prisoners were to remain within the penal-welfare sphere following the duration of their

sentences. Yet the numbers investigated by the COS were small. During 1899-1900 only

ninety cases were closely investigated, with this figure increasing to 132 out ofa total of 408

reported cases in 1908-9. 118

The period around the tum of the century was also notable for a number of technological

innovations and an expansion of interstate cooperation in the area ofcrime control and

punishment. In September 1879, the authorities approved ofa proposal to have all the

inmates of Brisbane Gaol photographed. I 19 The procedure then became a regular feature of

prison management, and by 1887 a photographic gallery had been erected at the gaol (mainly

because ofa need to improve the system in response to the increasing numbers ofprisoners

being released on probation).120 Soon after, it was decided that all prisoners serving sentences

of six months or more would be photographed and copies sent to the major Queensland towns

as well as the Police Departments in New South Wales, Victoria, South Australia and New

Zealand. 121 But the limitations of relying on photographs and memory for the identification of

habitual offenders quickly became apparent when many ex-prisoners realised it was in their

interests to alter their appearance following release. 122

117 See the Annual Report for year ended 30 June 1900 in Charity Organisation Society Welfare Services,Records and Papers, John Oxley Library (hereafter JOL) OM70-42/l/A, 1898-1969. For further details onthe COS, and on other benevolent societies operating in Queensland, see correspondence, printed reports andnewspaper clippings re benevolent societies and institutions, 1872-1932, QSA COL/290-3.

118 See the Annual Report for year ended 30 June 1900 and for year ended 30 June 1909 in CharityOrganisation Society Welfare Services, Records and Papers, JOL OM70-42/l/A, 1898-1969.

119 Sheriffto Under Col Sec, 29 September 1879, QSA COL/A283 [3475]; and Assistant Under Col Sec toSheriff, 8 December 1879, QSA PRIlA15 [1461J. See also Wright Brothers, Photographers, to Col Sec, 1April 1880, QSA COL/A296 [3792].

120 Commissioner ofPolice to Col Sec, 14 January 1887, QSA COL/A490 [1445].

121 Under Sheriff to Under Col Sec, 27 June 1889, QSA PRIlA39 [1981]; and Commissioner ofPolice toUnder Col Sec, 15 July 1891, QSA COL/A667 [8084].

122 ARS, 1890, QVP, vol. 2, 1891, p. 79.

Chapter 2: New Penology or Nco-Classical PenaHty? 126

One possible solution considered by the authorities was the adoption of the French Bertillon

method ofrecording body measurements and descriptions on a card that was then maintained

on file, allowing for a comprehensive system ofclassification, Unsurprisingly, Marshall Lyle

was a strong advocate of this system ofanthropometric measurement, 123 The Queensland

authorities, however, rejected it on the grounds that it was too complex and designed for far

larger populations of transitory criminals than existed in Australia. 124 Instead, a system of

photography, fingerprinting and detailed description was instituted, eventually developing into

a national system with a central repository in Sydney. 125 By 1905, all the inmates confined at

St Helena had been fingerprinted by the police. 126 By the 1930s, it seems likely that this

system was supported by the practice ofassembling extensive case files on released prisoners,

a logical consequence of the increasing focus on the individual characteristics ofoffenders. 127

The campaign against habituals also encouraged a more comprehensive system of

communication between the Prisons Department and its counterparts in the other states. This

involved the exchange of staff as well as information. For example, in 1911 Pennefather was

appointed commissioner to the Royal Commission into the Administration and Conduct of the

Fremantle Prison in Western Australia. 128 This was just three years after his tour ofNatal and

Britain.

The impact of the new science of criminology also inspired the partial development ofa more

individualised approach to the treatment ofconvicted or potential criminals. The introduction

of important new preventative legislation was aimed at addressing the particular problems of

123 Brisbane Courier, 25 October 1902. For a brief discussion of the Bertillon system, see Wines,Punishment and Reformation, pp. 264-5.

124 Brisbane Courier, 6 December 1902.

125 The concept of a national register had been discussed from the mid-1890s (see C-G to Principal UnderSec, 28 June 1895, QSA COL/A793 [7661]), Telegraph, 15 July 1903; and Finnane, Police andGovernment, pp. 80-2. On the involvement of the Police Departrrlent, see Johnston, Long Blue Line, pp. 41and 143-4.

126 Acting Sergeant to Officer in Charge, Criminal Investigation Branch, 14 December 1911, QSA AJ45341;and QPD, vol. 93, 1December 1904, p. 1083.

127 See, for example, HM Prison Brisbane, Criminal Histories, 1930-53, QSA AJ19881-94; and PrisonsDepartrrlent, Ex Prisoner Files, 1928-79, QSA TR1521/1; TR1730/1. The Victorian penal system, underJoseph Akeroyd, began this practice in the mid-1920s - although in this case it involved IQ testing and amuch greater focus on the individual characteristics of offenders (seeLynn and Armstrong, From Pentonvilleto Pentridge, p. 128).

128 West Australian, 10 & 12 May 1911; and Thomas and Stewart, Imprisonment in Western Australia, pp.82-7,

Chapter 2: New Penology or Nco-Classical Penality? 127

habitual offending and habitual drunkenness. There was also a simultaneous attempt to

develop institutions better suited to the individual requirements ofcertain offenders. In

particular, an inebriate institution was established for the treatment ofalcoholics and,

although not originally established as a key component of the penal realm, the lunatic asylum

began to assume a new role as the new criminology gradually led to a blurring of the

distinction between insanity and criminality.

The difficulty ofproviding appropriate institutional settings for the varying degrees ofmental

instability amongst its inmates had plagued the administration of the penal system from the

early 1860s. During the select committee of 1867, the visiting surgeon to Brisbane Gaol had

stated that the colony required a separate institution for criminal lunatics. 129 The problem was

graphically illustrated later in 1884 when two St Helena inmates were suspected ofbeing

insane. One was described as follows:

He rarely speaks to a fellow-prisoner, and isolates himself in a moody morbidcondition; but he is constantly breaking all bounds of discipline, using badlanguage to officers and assaulting them, all without the slightest apparentprovocation or object, the result being that he is nearly always under special

. hm 130punlS ent.

The other, after continually undergoing punishment for a variety ofoffences, attempted to

murder the chiefwarder with a marlinespike, successfully wounding him in the process. After

some press exposure that highlighted the absurdity ofconfining such men in prison, both were131eventually transferred to the asylum at Woogaroo.

The colony's main lunatic asylum, however, was rarely in a position to receive such cases. In

colonial Queensland, the treatment of the mentally ill was continually frustrated by perpetual

underfunding, an absence of concern for inmates, lack of innovation in methods of treatment,

and the existence of inadequate conditions for the reception of inmates. 132 The result was an

institution at Woogaroo that was constantly compromised by the twin problems of insufficient

129SCPD, p. 1142.

[30 Brisbane Courier, 3 January 1884; and Queensland Figaro, 2 August 1884.

13[ Wolston Park Case Book, 1884-85, QSA A/4561O, pp. 53 and 54. For details of the situation inTownsville Gaol, see R.B. Scholes to Gaoler Smythe, 29 July 1887, QSA PRlIA37 (1630].

132 For a briefdiscussion, see Evans, "The Hidden Colonists", pp. 80-8.

Chapter 2: New Penology Of Nco-Classical Penality? 128

staffing levels and extreme overcrowding. By 1892, the number ofcriminally insane in the

asylum had risen to fifteen, prompting its superintendent to complain to the government that,

due to the extreme overcrowding, it was impossible to keep these dangerous inmates in

separate confinement. 133 When Townley was ordered to investigate the feasibility of

transferring them back to prison, he reported that it would be impossible, under the current

staffing constraints, to provide the appropriate supervision and care in an institution like

Brisbane Gaol. The Insanity Act of1884 stipulated that the criminally insane could be

accommodated in any gaol, penal establishment or asylum once it had been officially

proclaimed suitable for this purpose. 134 Ultimately it was decided that the asylum was the

appropriate institution and that a separate wing should be erected as soon as possible.

During the late nineteenth and early twentieth centuries, an increasing number ofoffenders

found their way into Australia's lunatic asylums as increased medical intervention in the penal

process, advances in the discipline ofpsychology (especially improved diagnostic techniques),

and the slow but persistent erosion of classical notions ofpenality led to a redefinition ofwhat

was considered criminal behaviour. Stephen Garton has demonstrated that, in New South

Wales, the revelation that many offenders committed for trial were mentally unfit and in need

of extended treatment, rather than morally depraved and deserving ofpunishment, gradually

had an impact upon the sentencing practices ofmagistrates. 135 The result of this process was

a steady increase in admissions to the southern state's lunatic asylums at a time when prison

incarceration rates were in decline.

The divergence, however, was not as conspicuous in the Queensland statistics. Here,

admissions to asylums decreased (when calculated at a rate per 100000 of the population),

although not at anything like the same rate as prison admissions (see figure 2.3).136 It should

133 Four had been convicted ofmurder; two for attempted murder; one each for manslaughter, shooting,wounding, sodomy, rape; and four for less serious offences (see Medical Supt to Under Col Sec, 4 January1892, QSA COIJA721 [0405]).

134 48 Victoria, no. 8, s. 47.

135 Garton, "Bad or Mad?", pp. 107-9. For a study which shows how psychiatry began to impact on the legalsystem in New South Wales, see also Garton, "The Rise of the Therapeutic State", pp. 378-88.

136 Overcrowding in Woogaroo Asylum was alleviated early in 1879 when the Ipswich Benevolent Asylumwas redesignated the Ipswich Branch Asylum (see "Woogaroo Lunatic Asylum (Report by the Surgeon­Superintendent, Dr Patrick Smith)", QVP, vol. 1, 1879, p. 760). The Toowoomba Hospital for the Insanewas later established in 1890 (see "Asylums for the Insane, Goodna, and Ipswich, and Toowoomba (Reportof the Medical Superintendent for the Year 1890)", QVP, vol. 2, 1891, p. 296). In 1900, the total inmate

Chapier 2: New Penology or Nco-Classical PenaUty'? 129

be noted, however, that the likelihood of remaining in an institution for an extended period

was much greater for asylum inmates. The institutionalisation in asylums of those mentally ill

people likely to appear regularly in the criminal justice system would have had a perceptible

impact on the rates ofprison admissions. This process would also have received some

impetus from the Comptroller-General who had grown tired of the practice ofcommitting to

prison for observation persons suspected ofbeing ofunsound mind. His frustration at the

problems resulting from this practice, chiefly the ,drain on staff and accommodation, led him

to become a vocal advocate of the state establishing a more extensive range of institutions for

d 1· . h d . b h' 137ea mg wIt eVIant e avlOur.

Figure 2.3: Admissions to Queensland Prisons and Asylums (rate per100,000 of the population), 1870-1920

-+-Admissions toQueensland prisons

-II- Admissions toQueensland asylums

900

800

700

600'"Col 500'S::I 400Z

300

200

100

0

,\'J '\'?,q, ,q, ~ ~ ~ ~ ~ ~ ~ ~ W

~ ~ ~ ~ ~ ~ ~ ~ ~

Year

Source: Queensland Statistics, 1870-1920

The later development ofpsychiatry in Queensland was a major factor contributing towards

the difference between the two jurisdictions. Private practices did not begin to develop until

the 1920s, so that the provision ofpsychiatric diagnosis and treatment remained the

responsibility ofjust a few state institutions. 138 It took until the end of the following decade

before the old Insanity Act was superseded by the more progressive Mental Hygiene Act of

population in the colony's three asylums was 1663, climbing to 2703 in 1920.

137 ARC-G, 1901, QPP, vol. 1, 1902, p. 1059.

138 It was not until 1918 that a mental ward was inaugurated at Brisbane's general hospital (see Ross Patrick,A History ofHealth and Medicine in Queensland, 1824-1960, University of Queensland Press, St Lucia,1987, p. 130).

Chapter 2: New Penology or Neo-Classical Penality'? 130

1938; and only after Basil Stafford, superintendent of the Ipswich Hospital for the Insane, had

travelled overseas in 1937 to assess recent European developments. 139 The gradual

transformation in attitudes towards the mentally ill also had an impact upon prison

management, with three observation cells and a single padded cell being constructed at

Brisbane Prison in 1937. 140 The Mental Hygiene Act was accompanied by a Backward

Persons Act of1938, which provided for the establishment of separate institutions for any

person "whose mind has been arrested or is incomplete,..., and who on account of such

arrested or incomplete development is incapable ofadapting himself to the normal

environment ofhis fellows in such a way as to maintain existence independently ofcare,

treatment, or control".14J As a direct result of this legislation, a training farm for 'backward

persons' was established at Dalby in 1941, but was soon after appropriated for military142purposes and never reopened after the war.

An important sub-category of the habitual offender class was the habitual drunkard. For much

of the nineteenth century, social reformers in the colonies and elsewhere became concerned at

the increasing consumption ofalcohol by the working class, viewing alcoholism as a threat to

social and industrial discipline. 143 Drunkenness was perceived to be at the heart ofmany

social ills such as poverty, crime, family breakdown and degeneration. It has been estimated

that by the 1890s approximately a third ofall minor offenders in Australia were charged with

drink related offences and over four-fifths ofthese were ultimately convicted. 144 Alcohol

consumption was a problem that preoccupied the administrations of all the Australian

colonies in the last few decades ofthe nineteenth century, prompting a number of

commissions of inquiry to focus their attention on habitual inebriety. The outcome ofthese

inquiries was a strong recommendation that an extended period ofconfinement in an asylum

139 2 George, no. 21. For details on Stafford, see Patrick, A History ofHealth and Medicine, .pp. 78-80; and131-2.

140 ARC-G, 1937, QPP, vol. 2,1938, p. 1137. Yet this innovation was extremely late in coming consideringthat it was highlighted as a deficiency during the 1887 Board ofInquiry (BI, p. 720).

141 2 George, no. 30, s. 3. Included in the Act was special provision for "criminal backward persons".

142 See Patrick, A History ofHealth and Medicine, p. 132; and "Annual Report of the Director-General ofHealth and Medical Services, 1940-41", QPP, 1941, p. 948.

143 For a discussion, see Brian Harrison, Drink and the Victorians: The Temperance Question in England,1815-1872, Faber, London, 1971.

144 Stephen Garton, '''Once a Drunkard Always a Drunkard': Social Reform and the Problem of 'HabitualDrunkenness' in Australia, 1880-1914", Labour History, no. 53, 1987, p. 39.

Chapter 2: New Penology or Nco-Classical Penality? 131

was the appropriate strategy for reforming drunkards. 145 The criminal justice system appeared

to offer little. Punishment through fines or temporary confinement in gaol had for many years

demonstrated little success in reclaiming habitual drunkards. Once released, inebriates would

quickly lapse into their former pattern of compulsive and excessive drinking. Prolonged

confinement in an asylum, however, allowed for the imposition of a regimen of moral reform

which would encourage the individual to develop his or her powers of self-restraint.

Pennefather had begun to call for the establishment ofan inebriate asylum in Queensland in

the early 1890s, hoping to divert some ofhis more incorrigible inmates away from the penal

system and into a more appropriate institution. 146 Recognition of the need for such an

institution had also been a constantly recurring feature of more general debate on the

temperance question in Queensland. 147 In 1890, the Courier expressed the concerns ofmany

in its columns: "we send the sick to the hospital, the insane to the asylum, the criminal to gaol;

but the confirmed inebriate, who partakes of the character of all three, we either leave

severely alone, or we degrade and harden by writing him down as criminal only" .148 Habitual

drunkenness was now perceived by many as a problem for the state, and pressure quickly

came to bear on the government to legislate accordingly.149

Around the turn of the century, the public discourse on habitual drunkenness became

increasingly polarised, with proponents of the 'moral reform' solution under threat from those

who understood inebriety as a disease requiring a medical treatment, usually in the form of

drug therapy or hypnosis. 150 When debate began on the "Inebriate Institutions Bill" in

Queensland in mid-1893, there was evidently at least some acceptance that alcoholism was a

disease that required medical treatment. 151 All were aware of the futility ofcontinually

145 Garton, "Social Reform and the Problem of 'Habitual Drunkenness lll, pp. 41-6. Australia's fIrst inebriate

asylum was established near Melbourne in 1871.

146 See, for example, ARC-G, 1893, QVP, vol. I, 1894, p. 693; and ARC-G, 1897, QVP, vol. 1, 1898, p. 612,

147 See, for example, Lilley, Reminiscences ofLife in Brisbane, pp. 159-61; Lawson, Brisbane in the 1890s,p.147.

148 Brisbane Courier, 5 June 1890.

149 Brisbane Courier, 5 Apri11890.

150 Garton, "Social Reform and the Problem of 'Habitual Drunkenness"', pp. 46-52.

151 See, for example, QPD, vol. 69,13 September 1893, p. 62; and vol. 74,17 October 1895, p. 1318.

Chapt<';f 2: New Penology Of Neo-Classical PenaIity? 132

sentencing habitual drunkards to terms of imprisonment:

If a person is committed to gaol for drunkenness it is as a punishment for hisoffence, and there he has to associate with criminals, which is a great hardship,especially in the case of young people. There is nothing that conduces more tomake criminals of our youth than obliging them to associate with criminals ingaol, where the accommodation is not sufficient to allow of the proper separationof the different classes of criminals. And even ifprisoners were separated nomeans are taken in gaol to cure an individual of the disease of alcoholism, forafter a time the habitual indulgence in intoxicating liquors becomes a disease,which requires medical treatment just as much as typhoid or scarlet fever or anyother disease. 152

The establishment of inebriate institutions would mean that the convicted drunkard could be

treated "not as a criminal, but as a person who had been put under the cognisance ofthe State

apart from criminals, and in such a position that he may reform himself'. 153 Throughout the

following three years parliament witnessed substantial debate over the best methods of

implementing the legislation, but there was little opposition to the fundamental principle of

the Bill: the compulsory detention of declared inebriates in separate institutions.

When the Inebriates Institutions Act was finally passed in 1896, it provided for the

establishment of state-run inebriate institutions as well as privately-managed retreats.

Inebriates were to be detained for a maximum of twelve months and could be admitted in one

of three ways: they could voluntarily apply for admission to an institution; they could be

summonsed to appear before a court, on the application ofa relative or friend, to justify why

they should not be committed; or they could be forcefully committed if convicted of five

drunkenness charges (three, if all were recorded within twelve months). 154 The passage ofthe

Act was the first indication that penality in Queensland was moving in a new direction. In

exactly the way that habitual offender legislation would extend the rationale ofdetention

beyond the offence to the nature of the offender, the 1896 Act allowed for the prolonged

detention of an offender on the basis of their status as an inebriate. In other words, it was their

condition of irresponsibility that determined their treatment at the hands of the law, not their

condition of responsibility as defined in classical penality.155

152 QPD, vol. 73, 31 July 1895, p. 412.

153 QPD, vol. 71, 14 August 1894, p. 229.

154 The Inebriates Institutions Act of1896, 60 Victoria, no. 14, s. 6-8.

155 For a discussion, see Garland, Punishment and Welfare, pp. 217-8.

Chapter 2: New Penology or Neo-Classical PenaUty? 133

The next step was to establish an institution in which inebriates could be accommodated.

Despite earlier appeals for the construction of a purpose-built facility, in April 1898 the

government authorised the use of an existing ward at the Dunwich Benevolent Asylum as an

inebriate institution. 1S6 At about this time the Brisbane Hospital administration begrudgingly

established a ward for inebriates, a private facility began to petition the government for funds,

and the Salvation Army established its own facility. IS? In September 1902, a mere five

persons (two men and three women) were being confined in the Dunwich institution. Is8

During its first four years there had only been eighteen patients admitted, with five women

being readmitted. In fact, women comprised the bulk of the admissions because, it was

argued by medical superintendent Jackson, their prolonged absence did not threaten the

family income. Problems quickly emerged with some inmates still managing to procure

alcohol from covert sources, a problem exacerbated by the absence of separate

accommodation for the inebriates and special facilities for their treatment. 1S9 Jackson also

realised that a twelve month course of 'treatment' was not sufficient to cure the worst habituals

of their addiction, arguing that four to five years should become the minimum period of

detention. Persistent failure resulted in the closure of the ward in 1906.

The institution was reopened two years later and, in 1910, was transferred to the old

quarantine establishment on Peel Island. It was a depressing facility, described in 1916 as "a

series of galvanised i~on enclosed compounds, in which rank grass remains unmolested" .160

In his report on the workings of the institution, Jackson reaffirmed his allegiance to the

principle of segregation according to deficiency:

I don't think it advisable to keep inebriates at Dunwich, Boggo gaol or GoodnaAsylum. I would much prefer to see a suitable place established in close

156 QGG, vol. 70, no, 77, 17 September 1898, p. 717. For an early suggestion, see G, Watson to Col Sec, 26September 1890, QSA COLIA630 [10 117]. A more detailed discussion of the early history of inebriatelegislation is contained in Evans, Charitable Institutions, pp. 275-85 (also see his article, "Hidden Colonists",pp.91-2).

157 See Evans, Charitable Institutions, pp. 279-80, The Salvation Army was one of the most conspicuouscritics of the ill-effects of the drink trade. The Queensland edition of its journal, the War Oy, regularlycarried articles condemning the "demon drink" (see, for example, War Cry, vol. 16, no. 3, 19 March 1898).

158 Medical supt, Dunwich, to Under Sec, 18 September 1902, QSA HOM/A41 [15945].

159 They were confmed in the pauper ward.

160Telegraph, 25 July 1916.

Chapter 2: New Penology or Nco-Classical PcnaIity? 134

proximity to a State Farm or Agricultural College where patients would be useful.The further inebriates are kept from the depressing surroundings of gaols andasylums the better chances they have ofrecovery.161

He also restated the colonial obsession with economy, arguing that all able-bodied patients

should be made to work so that they could be granted small wages and the institution's

running costs could be minimised. It was a policy that had already proved difficult to

implement. In 1912 an inquiry was held into a disturbance at the institution caused by

patients who refused to work in protest at the intolerable conditions ofthe institution. 162 After

six years the authorities finally admitted defeat, closing the institution and returning the

inmates to Dunwich in 1916. 163 The decision was made in a year when calls were still being

heard for the provision ofspecial institutions for convicted inebriates. The Comptroller­

General ofPrisons, for example, reported that during 1916, "67 female prisoners were

convicted 459 times on the charge of drunkenness, being an average ofabout seven times for

each female". 164

The colony's initial experiment with separate treatment for inebriates'had been disastrous. In

reality, the Dunwich and Peel Island establishments did not repres~nt a significant break from

past practice. Despite the lofty ambitions that resulted from the gradual medicalisation of

inebriety, the inmates themselves continued to be treated as though they were suffering from a

moral, rather than a physical affliction. 165 Consequently, their periods ofconfinement bore

more of a resemblance to imprisonment than to any form of curative treatment. For Raymond

Evans, "the Peel Island station was a special penitentiary for recalcitrant drunkards, where

they served sentences ofa year, unless paroled earlier on a good behaviour bond" .166 Indeed,

the link between criminality and inebriety was still in evidence in 1928, when it was proposed

161 Medical supt, Peel Island, to Home Sec, 28 July 1916, QSA A/31745.

162 Details of this incident may be found in the following Home Office bundle: correspondence relating toinebriates, QSA COL/294, 1910-15.

163 Telegraph, 25 July 1916; and QGG, vol. 107, no. 84,2 September 1916, p. 715. The transfer to Dunwichdid not signify any change in the treatment of inebriates, however.

164 ARC-G, 1916, QPP, vol. 2,1917, pp. 446.

165 Comments made to aroyal commission on the liquor trade in Queensland, held in 1901, reinforce thisobservation. Even the medical practitioners who gave evidence to the commission supported the moralreform approach to the treatment of inebriety over proposed new medical treatments. For a discussion, seeGarton, "Social Reform and the Problem of 'Habitual Drunkenness"', p. 49.

166 Evans, Charitable Institutions, p. 284.

Chapter 2: New Penology or Neo-Classical Penality? 135

that Rockhampton Prison be converted into an inebriate asylum. 167 Even with legislative

recognition that inebriates needed to be removed from the environment of the prison, and that

they required some form of specialised care, classical notions ofhow to treat habitual

inebriates proved remarkably resilient in Queensland.

Following the example ofNew South Wales, where influx ofcriminals legislation had

recently been introduced in 1903, the Queensland government began to investigate the

possibility ofpassing a similar law in 1905. We have already seen how the fear ofoffenders

from other colonies migrating to Queensland remained a constant feature ofthe colonial

period. In 1890 Police Commissioner Seymour suggested that Queensland should introduce

preventative legislation like that in force in Victoria, expressing concern that the existence of

probation would enhance the colony's appeal to habitual offenders from the south. 168 A few

years later, Pennefather reinforced this argument by attributing the sudden rise in prison

admissions during the early 1890s to an influx ofex-prisoners from New South Wales and

Victoria as well as the depressed economy. 169 A bill was introduced in November 1905, and

it was subsequently discovered that fifty such offenders had been imprisoned in Queensland in

h . fi 170t e preVIOUS ve years.

In the succeeding debates no serious opposition was raised to the basic principle of the

legislation and the InJ!ux ofCriminals Prevention Act became law at the close of the

session. l71 The provisions of the Act applied to anyone who had been convicted in another

state ofan offence that carried a punishment of twelve months or more, and who was found to

be in Queensland within three years after the expiration of their sentence. Such people were

liable to be imprisoned for a term not exceeding twelve months, and to be deported from the

state on or before the expiration of their sentence. 172 No-one in parliament seemed concerned

167ARC-G, 1928, QPP, vol. 1, 1929, p. 1250.

168 "Report ofthe Commissioner of Police for the Year 1889", QVP, vol. 1, 1890, p. 975.

169ARC-G, 1893, QVP, vol. 1, 1894, p. 691.

170 For the list, see secretary, Office of Commissioner ofPolice, to Attorney General, 5 December 1905, QSAAJ44724 Influx ofCriminals Prevention Act.

171 Approval for the provisions of the bill clearly crossed party lines (see especially, QPD, vol. 96, 5December 1905, pp. 1940-2; and 7 December, pp. 2025-7).

172 See the Influx ofCriminals Prevention Act of1905,5 Edward VII, no. 24.

Chapter 2: New Penology or Nco-Classical Penality? 136

that discharged prisoners wishing to make a new start in life by travelling as far from their old

associates as possible would be just as liable for prosecution as incorrigible offenders. 173 In

1909, nine prisoners were sentenced under the Act and were to be deported in the following

months. I74 The threat of such a small number of ex-offenders was in danger ofbecoming

overdramatised as the sensationalist Truth proceeded to monitor every arrest made under the

new law. I75 But the Act was suddenly repealed in 1913 after the High Court deemed the New

South Wales law ultra vires - only the Commonwealth had the power to pass such a law. 176

The decision left Queensland in a worse position than before the legislation was passed. By

1913 the other states had introduced indeterminate sentencing, leaving Queensland as an

obvious haven for repeat offenders seeking refuge from the new law in force in their own

state. l77

Indeed, the repeal ofthe Influx ofCriminals Act, and the perceived increase in offenders

migrating across the border, provided sufficient incentive for the government to amend the

Criminal Code and allow for the indeterminate sentencing ofrepeat offenders. 178 Pennefather

had been concerned about the problem ofhabitual criminality from early in the new

century.179 In 1905, he began what would develop into an annual campaign to hav~ a system

of indeterminate sentences introduced to deal with those offenders who were seemingly

beyond redemption, continually posing a threat to the public and frequently re-entering the

penal system. By 1911, he had attracted influential sJJPport from the judiciary, with both

District and Supreme Court judges supporting the concept. 180 The press also proved to be

fervent allies ofthe campaign by publicising the arguments ofthese influential figures and

pointing to the fact that Queensland lagged behind most of the other states in prolonging the

173 For an example of an early conviction, see Telegraph, 3 November 1906.

174 Under Sec to Commissioner ofPolice, 2 December 1909, QSA A/44724 Influx of Criminals PreventionAct.

175 See, for example, Truth, 16 May and 20 June 1909.

176 Sydney Morning Herald, 21 December 1912; and QPD, vol. 115,28 August 1913, p. 1041.

177 See Brisbane Courier, 24 June and 14 July 1909.

178 Telegraph, 29 May 1913; and ARC-G, 1912, QPP, vol. 2, 1913, pp. 204-5.

179 ARC-G, 1903, QPP, vol. 2,1904-5, p. 28.

180 See, for example, Telegraph, 28 January 1911,30 September 1911 and 26 September 1913; Sun, 1December 1912; and QPD, vol. 115,30 September 1913, p. 1606.

Chapter 2: New Penology or Neo-Classical PenaHty'? 137

enactment of such preventive legislation. 181 Finally the government acted, and a bill was

introduced into parliament in October 1914. 182 Once again, there was little opposition to the

basic principles of the legislation and the Criminal Code Amendment Act was passed before183

the close of the year.

New South Wales had enacted similar legislation in 1905 under the influence ofNeitenstein,

New Zealand followed in 1906 (and again in 1910), and then South Australia and Victoria in

1907.184 Each jurisdiction differed in its implementation of the indeterminate senten6e. This

is perhaps best exemplified in the varying criteria for identifYing habituals and the decision of

a few to establish regulatory bodies to oversee the working ofthe legislation (Victoria and

New Zealand were the first). Mark Finnane has argued that this local variation "reflects the

confusion that characterised the whole indeterminate sentencing movement early this

century", with some states interpreting it as a method for reducing prison admissions through

deterrence, others through reformation. 185 For John Pratt, the two New Zealand Acts

represented both the old and the new in penological theory; and their real significance lies not

in their subsequent use, but in "what it was [now] actually possible to legislate for" .186 The

first, he argues, was inspired by classical penology and provided for the declaration of

habitual criminals according to the number of offences they had committed (granting powers

for the imposition ofan indeterminate sentence in such cases), the second, a product of the

positivist incursion into penal theory, allowed for the indeterminate sentencing ofprisoners

convicted ofcertain crimes that indicated they were ofa certain type or character, regardless

of the number ofprior convictions - sexual offenders were an obvious inclusion in this

category. The latter Act heralded a transformation in the penal realm in that it was now the

character of the offender that was most relevant.

181 See, for example, Brisbane Courier, 17 August 1907 and 21 Apri11908; Sun, 2,9,16 and 23 March1913; Telegraph, 28 February 1913 and 8 October 1914.

182 QPD, vol. 118,6 October 1914, pp. 1173-4.

183 Its full title was An Act to Amend the Criminal Code by making Provision for the Detention and ControlofHabitual Criminals, 5 George, no. 22.

184 QPD, vol. 118, 13 October, p. 1277.

185 Finnane, Punishment in Australian Society, p. 80.

186 John Pratt, "From Habitual Criminals to Reformative Detention: The Origins of the Modem PunishmentSystem ofNew Zealand", Criminal Justice History, vol. 11, 1990, p. 60. See also his "Dangerousness, Riskand Technologies ofPower", Australian and New Zealand Journal ofCriminology, vol. 28, no. 1,1995, pp.4-8.

Chapter 2: New Penology or Nco-Classical PenaIity? 138

In Queensland, the legislation was clearly intended to be a blend ofthe two - allowing for

both frequency of conviction and type ofoffence in the designation ofhabituals - but even this

hybrid law was generally regarded as signifying a new era in penal theory. When the bill was

read for a second time, James Blair, the Secretary for Public Instruction, emphasised that it

had been framed with the recent advancements in criminological theory in mind, citing

Lombroso's biological determinism and Garofalo's environmentalism as principal

influences. 18? Pennefather was certainly convinced that a significant transformation had taken

place, arguing that "the idea of indeterminate sentences is to regard a prison as a hospital for

the treatment ofmoral diseases". 188 According to the legislation, offenders could be

designated habitual criminals, and sentenced to indeterminate sentences in reformatory

prisons, for four alternative categories ofoffences: those committing a minimum ofthree

offences against morality; those convicted ofa fourth indictable offence specified in particular

chapters of the Criminal Code; those convicted of a summary offence punishable by not less

than three months imprisonment, where they had previously been convicted of two similar

offences along with two indictable offences specified in the Act; and finally, those committing189a fifth offence under the Vagrant Acts. The first three were targeted at those offenders who

were perceived as posing the greatest threat to the community - the sexual deviate, the violent

offender, and the persistent thief.

Despite the belated urgency in introducing the legislation, it was some time before its

provisions were utilised by the Queensland authorities. In 1921, the Comptroller-General

complained about the number ofhabituals repeatedly being sentenced to short terms of

imprisonment, allowing them to use the prison as "a sort of clean-up and wholesome retreat ...

to recover from the effects of their irregular lives when at liberty", 190 His comments prompted

immediate action and, in the following year, the first two habitual offenders were declared in

Queensland - eight years after the 1914 Act was introduced. 191 The late application of the

187 QPD, vol. 118,8 October 1914, p, 1227. For some ofms earlier comments when Attorney-General, seeBrisbane Courier, 21 Apri11908.

188 ARC-G, 1916, QPP, vol. 2,1917, p. 445,

189 Criminal Code Amendment of1914, s. 3.

190 ARC-G, 1920, QPP, vol. 2, 1921, p. 596.

191 ARC-G, 1922, QPP, vol. 1, 1923, p. 1105.

Chapter 2: New Penology or Nco-Classical Penality? 139

new sentencing provision is further evidence that its hurried introduction was motivated by an

unrealistic fear of an invasion of southern criminals following the High Court's finding on the

legality of the Influx afCriminals Act. After only one year the number ofhabituals had risen

dramatically to ten and, in 1924, Brisbane and Rockhampton Prisons and Stewart's Creek

Penal Establishment were declared reformatory prisons for the detention ofhabitual

criminals. 192 But this use of separate wings of existing institutions was not consistent with the

principles of indeterminate sentencing. Theoretically, a prison for the confinement of

habituals should not contain prisoners of any other class so that the proper classification could

be ensured and the best reformatory methods implemented.193 It was even suggested by the

New South Wales Comptroller-General that each state should contribute towards the

establishment ofa single national reformatory prison for habitual criminals - but the new

penal ideology was not powerful enough to overcome state parochialism. 194

By the end of 1932, twenty-five habituals had been declared in Queensland: fifteen had been

released and ten remained in prison. In his report for that year, Comptroller-General Gall was

sceptical about the value of the Act:

I am of the definite opinion, after a long experience in these matters, that thoseprisoners who come within the ambit of this Act are, with very few exceptions,incapable of reform and rehabilitation in society. In the few cases where aprisoner may reform, it will only be through his own strength of will, separationin another couhtry from former associates in crime, or through the goodinfluences following on spiritual ministrations. 195

His successor was less pessimistic, complaining in 1936 that not enough habituals had been

sentenced to indeterminate terms of imprisonment, and that a separate reformatory prison had

not yet been established. 196 In so doing, he inadvertently highlighted what the Queensland

legislation had quickly become - simply a deterrent measure, rather than a reformatory

technique; a symbol of the continuity between classical and positivist penology.

192 QGG, vol. 122, no. 23, 26 July 1924, p. 203. Two ofthese habituals unsuccessfully appealed against theirsentences in the Court of Criminal Appeal (see R v Murphy and R v Jackson, Queensland State Reports,1923, pp. 276-7).

193 See, for example, Sun, 2 March 1913.

194 Telegraph, 30 September 1911. The suggestion had been mooted earlier in the 1890s (see Bundey, "ThePunishment of Criminals", p. 553).

195 ARC-G, 1932, QPP, vol. 1, 1933, p. 920.

196 ARC-G, 1935", QPP, vol. 1, 1936, p. 1076.

Chapter 2; New Penology or Nco-Classical Penality? 140

The introduction of inebriates, influx of criminals and habitual offender legislation, and the

increasing intervention of the psychiatric profession in the penal realm, are the most striking

indications of the transformation that was occurring in the penal realm. But the growing

concern for the welfare and individual requirements ofoffenders was also reflected in some

other innovations in the area ofcriminal justice administration during the early decades of the

twentieth century. The driving force behind most of these changes was the long-time Kidston

ally, James William Blair, a barrister (later to become a judge) and independent liberal who

had distinguished himselfby holding portfolios in the Morgan-Browne, Kidston and Denham

ministries between 1903 and 1915.197 After initially being involved in drafting the "Influx of

Criminals Bill", he campaigned vigorously for the introduction oflegislation that provided

financial support for poor prisoners to engage some form oflegal aid during their trial. The

resulting Bill, inspired by an earlier British Act, reflected the fashionable concern for social

justice prevailing amongst progressive legislators. With Labor support, he was intent upon

establishing greater equity in the judicial process by ensuring that all persons committed for

trial on an indictable offence would be properly defended:

The rich individual or the man comfortably off, ifhe falls into trouble and isaccused of any offence or crime, is able to provide assistance to defend himselfand properly present his case to the court. The poor man is unable to do that, andfor that reason there exists the necessity for a measure of this kind. 198

Despite some opposition from more conservative members who interpreted the proposed

legislation as merely flA Bill to Provide Work for Briefless Barristers and Solicitors Who

Cannot Work up a Practice", the Act was passed in November 1907, and in its first six months

ofoperation there were forty-eight applications for assistance, with thirty-seven receiving199support.

In the very same session, another of Blair's progressive bills was passed. The Children's

197 For details on Blair, see Australian Dictionary a/Biography, vol. 7: 1891-1939, Melbourne UniversityPress, Melbourne, 1979, pp. 317-21; and J.C.H. Gill, "A BriefAccount of the Life and Times of theHonourable Sir James William Blair, K.C.M.G., Chief Justice ofQueenslandfl , Journal a/the RoyalHistorical Society a/Queensland, vol. 10, no. 2,1976-7, pp. 80-104. He had also served as a commissioneron the 1899 royal commission into the police force.

198 QPD, vol. 99,28 August 1907, p. 484. For an example of a defendant in need offmancial support, seeBrisbane Courier, 22 November 1907.

199 QPD, vol. 99, 28 August 1907, p. 491, and vol. 102,8 December 1908, p. 439.

Chapter 2: New Penology or Neo-Classical Penality? 141

Courts Act of1907 provided for the establishment ofseparate closed courts ofpetty sessions

for juvenile offenders under seventeen years of age.200 This was a year in advance of similar

British legislation.201 It stipulated that hearings for such offenders must be conducted in

private, without any media or public spectators; only those directly concerned with the case or

the welfare of the child were allowed admittance. The court was also invested with a degree

ofdiscretionary power which allowed the magistrate to formally convict or simply admonish

offenders. The establishment of the Children's Court was in response to the increasing

concern for the welfare ofneglected and criminal children who suffered certain disadvantages

from contact with the adult criminal justice system. It was followed in 1911 by the State

Children's Act which was essentially an Act of consolidation, bringing together a range of

legislation governing the welfare ofchildren in the State?02 There was little innovation in the

new Act, although it did transfer control ofthe industrial and reformatory schools to the

recently-established State Children Department (formerly Office of Orphanages). The new

Act was partly the result ofthe more progressive, welfare-oriented thinking of the government

and civil service of the day, but was also enacted in response to pressure from lobby groups

such as the Society for the Prevention ofCruelty.203

In 1909 an important amendment was made to the Justices Act which allowed for offenders

unable to pay their fines either to reduce their sentences upon conviction by surrendering a

portion of the money owed, or later to gain a partial remission of their sentences by paying

from prison a portion of the sum originally owed?04 It was a measure that had been strongly

recommended by Pennefather after New South Wales passed similar legislation in 1899.205

The new law netted substantial savings to the Prisons Department as each year more and more

200 7 Edward, no. 3.

201 The Act, however, omitted provisions for the appointment ofa special magistrate, the removal of thecourtroom from the environment of the adult courts, and the appointment ofprobation officers (Schofield,State Child Care in Queensland, p. 130). It took until 1930 before the flISt two deficiencies were addressed.Prior to World War Two, there was also little chance of a child committed for trial benefiting from a range ofnon-legal experts in the field ofchild welfare. Few such experts existed in Queensland in this period, and themajority were located in Brisbane.

202 2 George, no. 11.

203 Schofield, State Child Care in Queensland, pp. 94-100.

204 Justices Act Amendment Act of1909, 9 Edward, no. 11.

205 ARC-G, 1902, QPP, vol. 2,1903, p. 398. On New South Wales, see Grabosky, Sydney in Ferment, pp.100-1.

Chapter 2: New Penology or Nco-Classical Penality? 142

prisoners made restitution and were granted early release.206 Even as secretary for public

instruction in the Denham Government, Blair remained heavily involved in legal matters,

frequently acting as the Attorney-General's deputy. In 1913, he was instrumental in

establishing a Court of Criminal Appeal to hear appeals from persons convicted on

indictment.207 The new tribunal consisted of at least three judges and heard appeals against

either a conviction or a sentence passed on a conviction. Blair also effected another

amendment to the criminal code in the same year, raising the age ofconsent from fourteen to208seventeen years.

There can be little doubt that these new strategies are evidence ofa transformation that was

gradually occurring in the penal realm in Queensland. But the historian may be equally

certain that the paradigm shift would not be complete until further incremental change had

occurred during the next three decades. A cursory glance at the decades leading up to World

War Two reveals some important events that symbolise the continuing transition to a penal­

welfare complex. The first of these was the Labor Party's success in abolishing capital

punishment in 1922, following an initial unsuccessful attempt in 1916.209 This was a

momentous event in the transition away from purely retributive forms ofpunishment,

especially when one considers that it occurred half a century before the next Australasian

jurisdiction passed similar legislation. Looking further ahead, we find Queensland again

leading the way in establishing a modern system of parole. The Prisoners' Parole Act of1937

led to the establishment of the first parole board in Australia in December ofthat year - New

South Wales followed in 1950.210 The most innovative aspect of the new legislation was that

the board was to be composed entirely ofpublic servants, signifying a departure from the

dominance ofthe judiciary as primary decision-makers in the penal realm. Yet, showing

206 See, for example, ARC-G, 1915, QPP, vol. 2, 1916-17, p. 410.

207 Criminal Code Amendment Act of1913,4 George, no. 23.

208 Criminal Code Amendment Act of1913 (No.2), 4 George. no. 25.

209 The Criminal Code Amendment Act of1922, 13 George V, no. 2,1922. For details, see Barber, "TheLabor Party and the Abolition of Capital Punislnnent", pp. 3-12.

210 1 George VI, no. 20, 1937. By July 1938, ten prisoners had been released on parole (see ARC-G, QPP,vol. 2, 1939, p. 1373). Most ofthe other states did have indeterminate sentences boards to regulate thevarious systems in place for habitual offenders, but none had systems ofparole for prisoners givendeterminate sentences. It was in the 1950s that the use ofparole became commonplace in the Australianstates (see Finnane, Punishment in Australian Society, p. 164). For a discussion of the early history ofparolein Australia, see Fiori Rinaldi, Parole in Australia, PenologyMonograph, no. 5, Law School, AustralianNational University, 1974, pp. 10-24A.

Chapter 2: Ncw Pcnology or Nco-Classical Pcnality? 143

remarkable continuity with the past, the only supervision for parolees was to be in the form of

regular meetings with the police or, failing this, communication by letter - just as it was under

the Offenders Probation Act of1886.211 It is hardly surprising that the Queensland authorities

would have embraced a system that promised to relieve some of the burden ofexpense to its212penal system.

We may speculate that it was not until 1945 that Queensland could claim to have fully

embraced the principles of the new criminology. Soon after the passage ofthe Mental

Hygiene and Backward Persons Acts, the focus shifted to the category ofsexual offenders.

Indeed, from the mid-1930s pressure had been building in the parliamentary arena for the

government to introduce more scientific methods for dealing with sexual offenders, methods

that relied upon the specialist knowledge of the medical profession.213 In 1944 a committee

ofinquiry was established to investigate the nature ofsexual offending in Queensland,z14 One

of its main recommendations was that the provisions ofthe Backward Persons Act be utilised

to establish institutions for backward persons in which sexual offenders deemed to be

mentally defective could be confined. There they would be subject to twelve months of

"investigation, treatment and observation" to determine their readiness for release.215 The

committee made a number ofother recommendations that were also taken up in the "Criminal

Law Amendment Bill" which went before the House in the following year.

The new legislation was to make provision in certain cases for the indeterminate detention of

sexual offenders, regardless ofthe number ofprevious convictions, on the basis of reports

made by two or more medical practitioners appointed by the judge to inquire into their mental

condition.216 At least one of these medical practitioners was to be qualified in psychiatry. It

211 The Queensland Probation Service, with a complement offour staff, was eventually established followingpassage of new legislation in 1959 (see Lack, Three Decades ofPolitical HistOly, p. 529).

212 Indeed, Rinaldi contended in 1974 that "parole in Australia is almost a total sham" because it is little morethan a method ofreducing the costs of each penal system, or extending leniency to offenders too harshlysentenced (see Parole in Australia, p. 3).

213 QPD, vol. 166,25 October 1934, p. 984-5.

214 Report of Committee ofInquiry regarding Sexual Offences, QPP, 1944-5. The New South Wales MentalDefectives (Convicted Persons) Act of1939 had come into operation in 1941.

215 Report of Committee of Inquiry regarding Sexual Offences, pp. 13-4.

216 Even offenders already convicted of sexual offences could become subject to the proposed Act'sprovisions while in prison.

Chapter 2: New Penology orNeo-Classical Venality? 144

would now be possible for the mental condition ofan offender to determine his punishment.

The Bill also increased the severity ofpunishment for sexual offenders, directed supervision

by probation officers, and stipulated that court proceedings for sexual offences involving

children would be held in camera. In the ensuing debate, there was widespread support for

legislation of this sort:

The Bill is a welcome reform in the administration ofcriminal justice because itis the first approach to the subject of criminal punishment from the scientificangle. The report of the committee proceeded on the basis of punishment fromthe scientific angle, the lack ofwhich has been one of the greatest shortcomingsin our system of criminal justice in this State and indeed in most parts of theB '·' hE' 217ntIS mpIre.

The Leader of the Opposition, Frank Nicklin, expressed his disappointment that the

Committee had not gone further to recommend the use of sterilisation in certain cases, citing

evidence from a publication prepared by two "eminent" Brisbane medical practitioners

involved in the eugenics movement.218 The Criminal Law Amendment Act of1945 was

ultimately passed with minimal revision.219

Conclusion

The early 1890s played host to some important changes in the penal realm. In response to the

movement for penal reform, the administrative arrangements for Queensland's penal system

were revised and a modern penal establishment was erected outside Townsville. But as the

Queensland authorities were later challenged by profound changes in the international penal

environment, they responded by introducing a series ofhalf-measures. With the prison

population in decline, there was little motivation for the government to depart from its

obsessive disinclination to expend funds on the penal system. Only gradually did the new

ideology ofpenal-welfare come to influence the penal realm, failing to stimulate a speedy and

complete transformation in penal practice. The changes that did take place were

conspicuously half-hearted in their implementation. Provision for the treatment of the insane,

217 QPD, vol. 184,2 March 1945, p. 2002.

218 QPD, vol. 184, 8 March 1945, p. 2075. John Bostock and L. Jarvis Nye, Whither Away?: A Study ofRace Psychology and the Factors Leading to Australia's National Decline, Angus and Robertson, Sydney,1936. Bostock, a psychologist, actually gave evidence to the 1944 inquiry, and Nye was later appointed toQueensland's Parole Board (Lack, Three Decades ofPolitical History, p. 529).

219 9 George VI, no. 11.

Cbapter 2: New Penology or Nco-Classical Penality? 145

especially the criminally insane, remained an area ofneglect; the experiment with an

institution for inebriates ended in failure; influx ofcriminals legislation could not be defended

in a higher court; and habitual criminals legislation was only sparingly applied. There were,

however, a series of progressive alterations made to Queensland's criminal justice

administration, including the provision of financial support for the defence ofpoor prisoners,

the establishment ofa children's court, the introduction ofpart payment of fines, and the

creation ofa court ofcriminal appeal.

Yet these revisions cannot be seen as representing a change in ideology and practice in the

order ofwhat Garland has described for Britain. They were the outcome ofa process of

borrowing innovations from overseas jurisdictions which were then pragmatically adapted to

suit local circumstances. They should therefore be understood as the beginnings ofa new

penality, one that would finally emerge around World War Two. In the meantime, the

Queensland government continued to operationalise penal policies and practices that were

consistent with a neo-classical penality, rather than something completely new, and

innovation was slow to take hold. This process of incremental change would be familiar to

other colonial jurisdictions. In such societies, there was little chance ofa sudden and

comprehensive departure from the prevailing mode ofpenality. It may be that in Queensland

knowledge of the new science ofcriminology was imported from overseas and began to have

an impact on the penal realm before the social and political transformation to welfarism had

sufficiently matured. Early post-colonial Queensland lacked a strong welfare lobby and there

were few social work and psychiatric professionals to help effect change in the penal realm.

This deficiency, combined with the traditional hesitance of the colonial state to invest in its

institutions ofpunishment and welfare, would have contributed in no small way to its failure

to operationalise comprehensively the new ideology ofpenal-welfare.

PartB

Themes in the History of Punishment in

Queensland

Chapter :1: Docile or Defiant Bodies? 146

Chapter 3

Docile or Defiant Bodies? The Experience of Imprisonment

In Discipline and Punish, Foucault presented his impression of the great transformation that

took place in European penality in the late-eighteenth and early-nineteenth centuries. He did

so by contrasting the spectacle ofviolent public punishments characteristic of the ancien

regime with the discipline of the early-nineteenth century prison regime, concluding that a

new power relation emerged within the walls of the prison in this period. Basing his analysis

on a selective engagement with the evidence ofthis period, mainly contemporary official and

semi-official descriptions ofpenal regimes, Foucault argued that offenders became subject to

an institutional regime which was concerned with the deployment ofnew disciplinary

techniques, such as continuous surveillance, the rigorous classification of individuals, the

regulation ofminute detail, the regular and uniform exercise ofpower, the imposition ofa

programme ofactivities geared towards moulding behaviour, and the relegation of individuals

to objects ofknowledge. The penal regime is thus recognised by its normalising, disciplinary

approach, its orderliness, its regimentation, its functional architecture, and its repressive

structures ofauthority. It is this image of the penitentiary that has now become something of

a stereotype in descriptions of nineteenth-century penal regimes. But how accurate an

impression ofa prison regime can be gleaned from the rules and regulations devised to

organise the everyday functioning ofan institution and its inmates? Surely it is possible that

significant differences could have occurred between what was intended and what actually

occurred.

Foucault's characterisation of the prison experience has been criticised for its failure to

distinguish between the intended operation ofpower - as devised by penologists, and then

prescribed in the rules and regulations of various penal systems - and the way in which it was

actually experienced in the real environment ofthe prison. This is particularly noticeable in

Foucault's disregard for the individual agency of inmates. David Garland, for example, has

suggested that

By studying more closely the nature of resistance, Foucault would have donesomething to balance his account ofpower, [and] he might also have been led torevise this account in some important respects. In particular he might have beenled to describe the operation ofpower upon individuals as being less of an'automatic' process and more a matter ofmicro-political conflict in which theindividual subject may draw upon alternative sources of power and subjectivity to

Chapter 3: Docile or Deflant Bodies? 147

resist that imposed by the institution.!

Garland's comments suggest that, before Foucault's account is to be accepted, it may be

worthwhile examining an important aspect of the prison experience - the extent to which the

individual and collective resources of inmates may be deployed in negotiating the prison

regime. Systematic analysis ofQueensland's historical records suggests that the operation of

power was not simply a top-down process in which inmates were merely "docile bodies",

constantly subject to an invasive regime of surveillance, hard labour and punishment. They

were also consequential actors in the penal process, experiencing a number ofsanctioned (and

also subversive) freedoms, able to influence the operation ofprison discipline and even

exerting some influence on the evolution of the penal system itself.

Foucault's account also creates an impression of uniformity in the operation ofpenal regimes­

something that was more of an elusive goal than a reality for prison administrators in the

Victorian period. It is also worthwhile looking beyond the operation ofpower to detail the

lack of uniformity between institutions that constantly existed in Queensland's penal system.

The fundamental goal ofclassical penology - to enforce uniformity ofpunishment - was never

realised in Queensland. In this particular jurisdiction, there was frequently inconsistency

between actual practice and the official rules and regulations, and inmates experienced a

variety ofpunishment regimes that usually depended upon the institution in which they were

imprisoned. It is through a detailed analysis of the carceral experience that we obtain an

impression of the prison that is somewhat different to the account presented in Discipline and

Punish. In Queensland at least, the experience of imprisonment was partially characterised by

indiscipline, contest, contingency, inconsistency, and the interdependent relationship between

inmate and official.

The perspective presented in the current chapter owes a great debt to the work ofErving

Goffman, whose particular brand of symbolic interactionist sociology offers much for the

historian ofimprisonment.2 His concept of the "total institution", embodying three

I Garland, Punishment and Modern Society, p. 173. See also, Zedner, Women, Crime and Custody, p. 95.Ignatiefftoo has criticised Foucault for failing to view power as "a social relation between contending socialforces" (Ignatieff, "State, Civil Society and Total Institutions", p. 86).

2 His perspective is perhaps best elaborated in the collection of essays entitled Asylums: Essays on the SocialSituation ofMental Patients and Other Inmates, Penguin, Harrnondsworth, 1976.

Chapter 3: Docile or Defiant Bodies? 148

conditioning elements ofclosure, rationalisation and bureaucratic organisation}, and his focus

on the complex relationships between inmates and the structures ofauthority that occur within

such institutions, is a useful model for analysing the social world ofpenal institutions in

historical context.4 Goffman's emphasis on processes of interaction in the institutional

environment, especially his contention that an inmate develops hislher sense of self in

opposition to the institutional regime, serves as an important corrective to Foucault's

obsession with processes of subjectification. Both he and Foucault were concerned with

normalisation in the environment of the institution (although the latter's goal was to

extrapolate beyond the institution to the social body) but Goffman's empirical observations

demonstrate the central role ofcontingency and inmate agency in the process of the self

surrendering to (or resisting) the goals and values of the organisation. A reliable

phenomenology ofprison life must effectively reconcile the post-structuralist approach of

Foucault with Goffman's elaboration of face-to-face relations in the "interaction order".5

Little historical work has been conducted which attempts to reconstruct the actual experience

of imprisonment in the Australasian colonial penal systems established during the transition to

self-government in the mid-nineteenth century.6 An ~nduring preoccupation with the

experience oftransportees has ensured that attention has remained focused on the convict

period.? Indeed, the international historiography is not much better served, with histories of

imprisonment typically being written with the inmates left out.8 There are few works of

3 Tom Bums, Erving Goffman, Routledge, London, 1992, pp. 145-7.

4 Goffinan's conception of "total institutions" has been criticised by a nwnber of scholars who regard it as toovague or undertheorised. For swnmaries of these criticisms, see Philip Manning, Erving Goffman andModern Sociology, Polity Press, Cambridge, 1992, pp. 114-16; and Christie Davies, "Goffinan's Concept ofthe Total Institution: Criticisms and Revisions", Human Studies, vol. 12, 1989, pp. 77-95.

5 For a useful discussion of the idea of an "interaction order", see Layder, Understanding Social Theory, pp.172-81.

6 For a brief discussion of the prison experience in an Australian jurisdiction, see Stevenson, FremantlePrison in the 1890s, ch. 3.

7 See, for example, Stephen Nicholas (ed), Convict Workers: Reinterpreting Australia 's Past, CambridgeUniversity Press, Sydney, 1988; Evans and Thorpe, "Power, Punishment and Penal Labour"; and thecollection of articles in Ian Duffield and James Bradley, Representing Convicts: New Perspectives onConvict Forced Labour Migration, Leicester University Press, London, 1997.

8 Zedner's Women, Crime and Custody, and chapter eight ofPieter Spierenburg's Prison Experience areprobably the best efforts to date. But see also William Calder's study, "Convict Life in Canadian FederalPenitentiaries". Patricia O'Brien does attempt to reconstruct the inmate subculture of French penalinstitutions as "a corrective to viewing life in the prison exclusively as something imposed from the top downon a captive population" (Promise ofPunishment, p. 76). Her analysis, however, is specifically focused on

Chapter 3: Docile or Defiant Bodies? 149

history to match the pioneering sociological studies of Gresham Sykes, Donald Clemmer,

Richard Cloward and Erving Goffman.9 This is hardly a surprising omission when one

considers the obvious problem ofa paucity ofprisoner testimony in the form ofmemoirs,

reminiscences and the like, especially in the Australian jurisdictions. But it is the censorial

nature of official documentation that presents the greatest obstacle to the historian. Prisons,

and other like institutions, are notoriously difficult subjects for social historians concerned

with reconstructing the day-to-day experiences of inmates and their keepers (especially in the

period before detailed case files became mandatory features of institutional administration).

Factors such as the lack of independent scrutiny and minimal external intervention in the

affairs ofprison life combine to ensure that the evidence gleaned from official records may

only offer an opaque picture ofwhat actually happens in closed institutions. Nevertheless, it

is important to fumigate the vast collection ofofficial documentation that has endured to

expose any evidence ofhow the subjects ofprison discipline coped with their loss of freedom

and experienced their temporary disciplinary lifestyle. Occasionally, the historian can obtain

glimpses ofprison life from the testimonies of the prisoners themselves, preserved in petitions

for remission, appeals against harsh treatment, or in the transcripts ofofficial inquiries.

Usually, however, it is the fragments of information preserved in the more routine

administrative records of the penal system, and the government itself, that reveal most about

the minutiae ofprison life.

For Queensland, these records are numerous and I have only been able to include what I

consider a representative sample. This evidence has been organised around a number of

central themes, which provide an insight into the material conditions and interpersonal

relationships that characterised life in Queensland's penal institutions. The regimentation of

prison life is discussed with reference to the daily routine of the prisoners and the work regime

designed to exploit their labour and instil in them habits of industry. The physical conditions

experienced by the inmates are also addressed early in this chapter. The relationship between

the superordinates and the subordinates - the warders and the inmates - is then discussed.

tattooing, prison argot, homosexuality and the use. of architecture as a moral force. See also Herman Franke'ssomewhat eclectic study, The Emancipation ofPrisoners, for his criticisms of Foucault.

9 Gresham Sykes, The Society ofCaptives: A Study ofa Maximum Security Prison, Princeton UniversityPress, Princeton, New Jersey, 1958; Donald Clemmer, The Prison Community, Holt, Rinehart and Winston,New York, 1958; Cloward; Richard A. Cloward, "Social Control in the Prison", in Conference Group onCorrectional Organization, Theoretical Studies in Social Organization ofthe Prison, Social Science ResearchCouncil, New York, 1960, pp. 20-48; and Goffman, Asylums.

Chapter 3: Docile or Defiant Bodies? 150

Through these relationships the inmates were able to influence the circumstances under which

they were incarcerated, while the warders attempted to maintain some form of discipline.

Inmates also devised other techniques to resist the oppressive institutional lifestyle of the

prison and were able to exert some influence on the conditions in which they were confined.

These techniques were usually expressed in individual acts of resistance, although collective

action did occasionally take place. But any form ofresistance tempted a swift and severe

response from the authorities, who were able to draw upon a wide array ofpunishments to

subdue the inmates under their supervision. By examining these aspects of the prison

experience we can learn much about the experience of imprisonment in colonial Queensland

and suggest some important revisions to Foucault's phenomenology of incarceration.

The Prison Regime

There can be little doubt that the lifestyle of the prisoner was highly regimented in comparison

with the average free citizen. At 8t Helena, for example, the daily routine began when the

inmates were roused by a bell each morning at 5.30 (6.00 in winter). They were then

mustered in the appropriate yards where they would shower and breakfast. In 1886, 8t Helena

had three such yards: "B" for newcomers, and "A" and "C" for the outdoor and workshop

gangs. 10 Another bell would ring at 7.00 (7.30 in winter) and the prisoners were marched

either to the workshops or to the field. There they would labour until 11.30 (noon in winter),

with a single fifteen minute rest period to break the shift. The men were then marched back to

the yards for a one and a halfhour lunch (one hour in winter). The afternoon work shift began

at 1.00 and ended at 4.30 (4.00 in winter), and included another fifteen minute break. After a

one hour meal period, the inmates were body-searched in groups of five or six and marched to

their cells or to the associated wards. Once confined for the night, they were allowed one

hour to converse freely before the silence bell sounded. 11

10 This plan was expanded after the new prison regulations were introduced in 1892. In 1907 the Sun (17February 1907) reported that there were six yards in use: "A" for fIrst-timers who had completed theirprobationary period (and who all work outside the stockade); "B" for second offenders who work outside thestockade; "C" for Aborigines and Islanders; "D" for prisoners serving their three month probationary period;"E" for previously convicted inmates working in the shops; and "F" for fIrst-timers working in the shops.

11 Prisoners confmed to their cells as a punishment or on probation were only allowed twenty minutes in themorning to wash, along with one hour for exercise. Their meals were taken in their cells.

Chapter 3: Docile or Defiant Bodies? 151

The rules and regulations prescribed a strict code ofbehaviour and appearance for prisoners. 12

For example, all convicted prisoners were to have their hair cut short upon admission and, for

those serving sentences in excess of three months, were to be shaved weekly. Inmates were

prohibited from communication when locked in their cells, and were required to stand at

attention when an official entered their domicile. Strict silence was to be preserved at all

musters, at meals, in the wards and cells when undergoing separate treatment of solitary

confinement, and when being marched about the prison. When on parade prisoners were to

be ranked in single file and stand at attention. All inmates were required to touch their hats

when passing or addressing an officer. No gambling was pennitted, and even games

involving jumping, wrestling, boxing, singing, laughing, whistling, or making an unnecessary

noise were prohibited.

Even the warders were subject to a strict regime calculated to ensure they remained diligent in

their duties, as well as to intimidate the inmate population. Up to the early 1920s, the warders

at St Helena were organised along military lines, parading around the precincts ofthe

establishment with guns in their hands and saluting any visitors. l3 It was at this institution

that the staffwere particularly deprived, in the words ofone ex-warder: "this isolation from

wife and family is not conducive to the discipline of the establishment, as they are punished

by such isolation almost as much a,s the prisoners, and do not attach so much value to their

positions as they might under happier circumstances". 14 Even at night the prison staffwere

exposed to the scrutiny of their superior officers. A system ofsurveillance using "tell-tale"

clocks was implemented to ensure that warders remained attentive to their duty ofpatrolling

the corridors and yards of the establishment. When on duty, each warder was required to

carry a clock that had to be regularly inserted into a "type" box at each end ofhis beat. The

imprint would change every halfhour, thus recording the number oftimes each warder

traversed his beat. IS Warders were also prohibited from bringing alcohol into the prison

precinct; they were not allowed to sit down without pennission; nor were they to talk, read or

12 "Rules and Regulations", 1892, pp. 297-8.

13QPD, vol. 138,5 October 1921, p. 1153.

14 Francis, Queensland: The State's Stagnation, p. 11. The warders' families were permitted to reside on theisland during the years 1873 to 1890 (see superintendent Pennefather to Col Sec, 31 December 1890, QSACOLlA644 [0419]).

. 15 For a more detailed description, see Queenslander, 16 November 101.

Chapter 3: Doci.1e or Defiant Bodies'! 152

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C:hapter 3: I)ocilc or Defiant Bodies? 153

Illustration 3.2: Machinery of Surveillance: Stewart's Creek Penal Establishment, CentralTower, 1916 (ARC-G, 1916-17)

Chapter 3: Docile or Defiant Bodies? 154

smoke when on duty or in the presence ofprisoners; they were prohibited from gambling or

playing cards; and they were not allowed to frequent public houses when off duty. 16

But even this sweeping network of surveillance possessed limitations imposed by structural

deficiencies and staffing constraints - limitations that were constantly being tested by the

inmates. The result was that prisoners were able to create certain freedoms in the prison

regime that went some way towards alleviating their conditions ofconfinement, and

frustrating the disciplinary objective of imprisonment. These subversive activities have been

described by Goffinan as "secondary adjustments" - a concept he uses to categorise any

habitual arrangement employed by an inmate in which unauthorised means are used to

subvert the institutional regime. These are in contrast to "primary adjustments", which are

made by inmates who choose to conform to the roles prescribed for them. l?

At all times prisoners were afforded numerous opportunities for conversing with each other

(and thus contravene the rules and regulations), despite the best efforts ofthe authorities to

limit intercourse. The report of the 1887 board of inquiry condemned this aspect of the St

Helena regime: "They [the inmates] have hours of relaxation, holidays, and half-holidays;

they enjoy the unrestrained society of each other at stated periods of the day, they have

amusements in the shape ofgames, tuition if they desire it, and music to soothe them". 18 With

only a rudimentary system ofclassification, a work regime based on association, and

associated sleeping cells it was impossible to prevent a variety ofcommunal activities being

indulged in by the inmates. At breakfast, smokos, lunch and dinner there was also ample

opportunity for conversation. 19 It was a problem that the authorities could do nothing to

remedy, leaving little option but to tolerate the high level ofassociation and, in certain

circumstances, attempt to tum it to their advantage. At St Helena, for example, the prison

administration allowed the prisoners in the associated cells to converse until nine o'clock in

the evening before attempting to enforce silence, but they made sure that a slipper-clad warder

regularly traversed the corridor, listening in on the prisoners' conversations.

16 "Rules and Regulations", 1892, pp. 294-5. For further infonnation on the duties of warders, see GeneralOrders Book, HM Gaol, Brisbane, 1869-1890, QSA N19872; and General Orders Book, HM Gaol,Toowoomba, 1889-1902, QSA N47529. .

17 Goffman, Asylums, pp. 171-86. It should be noted that secondary adjustments can be either "disruptive",or challenging to the institutional regime, or they can be "contained", preserving the institutional equilibrium.

18 )BI, p. 687 (see also, pp. 707-8 .

19 See, for example, Sun, 17 February 1907.

Chapter 3: Docile Of DefJant Bodies? 155

The workplace was another area where inmates could challenge the prison regime. The

opportunity to pilfer materials or to adopt go-slow practices in protest at irksome disciplinary

arrangements were two common methods available to inmates working in association?O The

punishment books of the various prisons and the 8t Helena inmate registers contain numerous

examples ofprisoners being punished for 'malingering' or being in possession ofpilfered

contraband.21 The 1887 board of inquiry heard evidence that at Townsville Gaol the prisoners

could easily gain access to the carpentry tools by breaking a single padlock (often saws were

simply left outside the cupboard)?2 In 1925, a prisoner in Stewart's Creek was found to be in

possession of a firearm; another managed to escape from Brisbane Gaol with the aid of a

ladder that he had constructed from pilfered materials.23

Trusted prisoners were even granted special freedoms. Access to medical supplies was one

area ofprison administration in which this was occasionally allowed. The women in

Toowoomba Prison, for example, were permitted to take their medicines to their cells, and

could easily gain access to others kept in some unlocked cupboards in the yards. Only after a

prisoner mistakenly swallowed the wrong mixture in the dark ofher cell, and was almost

poisoned, was an inquiry ordered and procedures modified in response.24 The 1887 board of

inquiry found that the dispenser at Brisbane Gaol was a prisoner, and that he had been given

too much power - power which had been abused on occasions. The commissioners concluded

that

The practice in the Brisbane Gaol of putting the most poisonous drugs in chargeofa prisoner, leaving them open in a room to which many prisoners hadcomparatively free access ... is a most dangerous one, indeed, the care and

20 It was not uncommon for prisoners to then manufacture weapons from pilfered articles. In 1889, forexample, a Townsville Gaol prisoner was caught sharpening a spoon on a stone (Tumkey's duty report book,HM Gaol, Townsville, QSA A/45924, 15 August 1889).

21 See, for example, Punishment register, Mackay Prison, 1891-1902, QSA A/45942; Register of the variousprisoners to whom were allocated (at different times) the various gaol nos. 1-291, St Helena PenalEstablishment, c. 1880-1900, QSA PRI2/4; and Principal Gaoler's Journal, Brisbane Prison, 1883-1904, QSAPRI 1/24. See also St Helena diary, 1895, JOL OM78-32.

22 BI, p. 951.

23QPD, vol. 146,6 October 1925, p. 1028

24 Superintendent, Toowoomba Prison, to Comptroller-General, 15 October 1894, QSA A/19930 [3289].The incident was even more serious considering that an inmate had died after mistakenly consuming thewrong medicine only two year earlier (see below).

Chapter 3: Docile or Deflant Bodies? 156

dispensing ofmedicines in Brisbane Gaol require immediate and thoroughrefonn.25

A clerk and dispenser was immediately appointed.26

At the time of the 1887 board of inquiry, the mid-Victorian ideal ofunifonnity in penal

practice was glaringly absent in the operation ofQueensland's penal system. There existed

much variation in the treatment of inmates, and this variation was usually dependent upon the

particular institution in which an offender was confined. Differences clearly existed in the

most basic activities ofprison life. For example, at St Helena the prisoners were provided

with eating utensils, whereas at Brisbane Gaol knives and forks were prohibited and at meal

times the prisoners had to "snarl at the meat like dogs".27 But there were also major

inconsistencies in the fundamentals ofprison administration. The situation for prisoners

under committal or on remand perhaps best demonstrates the lack ofunifonnity that could

occur in the treatment ofprisoners. The 1887 board of inquiry was extremely critical of this

aspect ofQueensland's penal system.28 Remand prisoners in Brisbane Gaol were allowed to

exercise in their own yard but often had to sleep in cells with convicted men; in Rockhampton

Gaol they had separate accommodation and exercise facilities; in Townsville Gaol they were

accommodated in single cells and exercised with "black, sentenced prisoners" only; in Roma

Gaol they slept in single cells but exercised with sentenced men in the only male yard; and in

Toowoomba Gaol committed female offenders were placed with female first offenders, while

in the male division sentenced and committed male offenders were not separated at all. In the

police gaols there was no distinction made between sentenced and untried prisoners. There

was also great variation in the dietary allowance of remand prisoners. In some lock-ups it was

simply bread and water, while in others, and in certain gaols, it was whatever the inmates

chose to order from the nearest public-house, or asked their friends to bring. The conditions

for remand prisoners remained a problem into the new century.29

25 BI, p. 695.

26 ARS, 1887, QVP, vol. 1,1888, p. 904.

27 BI, p. 722.

28 BI, p. 695.

29 Brisbane Courier, 16 February 1903.

Chapter 3: Docile Of Defiant Bodies? 157

The personalities ofparticular superintendents also ensured the disciplinary regimes would

vary according to institution. The closed nature ofpenal institutions meant that the official

rules and regulations could be interpreted either loosely or rigidly. For example, the gaoler at

Roma, Frank Schneider, was renowned for being a strict disciplinarian who, as well as

intimidating the inmate population into submission, effectively alienated the small staffof

warders who worked under him. His reputation was such that his name regularly provoked

comment in the Supply debates in parliament. In 1900, the Home Secretary described

Schneider as "a martinet of the first order", who should immediately be removed from the

prisons service.30 It was also alleged that one ofhis intimidatory practices was to always be in

possession of a revolver when on duty at the gaol. 31 The punishments for prison offences

meted out at his establishment far exceeded those for other police gaols and prisons ofa

similar size, and the Comptroller-General's office regularly received complaints from the

warders employed at Roma Gaol.32 In his previous position as gaoler at Mackay, he was once

denied an allowance for inflicting a flogging on a prisoner because permission had not been

received from the Sheriff to impose the punishment.33 It would be fair to assume that inmates

were certain to receive harsher treatment under his superintendence than they would at other

institutions.

Labour and Living Conditions

Another glaring example of the lack of uniformity between penal institutions was in the area

ofwork regimes. Throughout the 1880s the prisoners at Brisbane Gaol were essentially

confined in idleness. This was in contrast to St Helena, the productive powerhouse of

Queensland's penal system. Within its stockade were the establishment's workshops, where

the majority ofprisoners were taught their trades and articles were manufactured for the

various government departments. 34 Boots and slippers were made in the boot shop; saddles,

30QPD, vol. 86, 17 December 1900, p. 2691. See also, QPD, vol. 88, 22 October 1901, pp. 1399-403.

31QPD, vol. 91,2 September 1903, p. 457.

32 For material on Sclmeider, see Inquiry into Roma Gaol, November 1890, QSA AJ19929; andcorrespondence and telegrams relating to staff matters, especially to Frank Sclmeider (gaoler at Roma,Mackay, etc) and lE. Maher (warder, St Helena Penal Settlement), March 1882 - September 1931, QSAPRIl7. His obituary may be found in the Sun, 24 November 1907.

33 Gaoler to Sheriff, 10 January 1887, Q'SAPRIlA37 [0084].

34 W. Townley to Under Col Sec,S September 1891, QSA COLlA671 [l0118].

Chapter 3: Docile orDefjant Bodies? 158

bridles, harnesses and other leather goods were manufactured in the saddlers' shop; various

garments were fashioned in the tailors' shop; a variety oftin and galvanised ware was made in

the tin shop; and other necessary articles were forged by the blacksmiths and a gang of

carpenters. Outside the stockade many prisoners were engaged in agricultural work:

ploughing, harrowing, hoeing and trenching for the cultivation ofsweet potatoes, oats, lucerne

and vegetables. Others were employed quarrying, coral lime-burning, road-making and

mending, butchering, shepherding, gardening and a variety ofother occupations. Until the

late-l 880s, the island's fertile, volcanic soil was exploited for the cultivation and refinement of

sugar cane. Ifthe weather was favourable, it functioned as a profitable industry, but problems

soon arose with a succession ofbad harvests and as prisoners attempting to escape managed

to avoid detection for lengthy periods by concealing themselves in the canefields, eventually

prompting the authorities to discontinue the industry.35 The steam engine was retained for its

use in pumping water into the stockade precinct.

The situation was different in the smaller prisons where many of the inmates were serving

short sentences. In 1891, William Townley described the most common industries carried out

there as

cutting firewood for the prison, police use and for sale, gardening, growingvegetables, levelling and improving the prison grounds, making dams, sinkingwells, road making for the municipal or Shire councils, cooking and general dailycleaning ofprisons. The female prisoners are employed in washing, sewing &C.

36

But the availability ofwork was generally dependent upon the enthusiasm ofthe gaoler (or

lockup keeper) in actively soliciting contracts from interested parties in the government or

community. The gaoler at Thursday Island was particularly enterprising in this area. During

the 1890s, the variety ofchores for the inmates included scrubbing, collecting and chopping

firewood, painting, stripping paint, fencing, road work, gardening, cleaning yards, cooking,

carpentry, washing cells, working on ships, sail making, tree planting, and carting materials.37

Few of the remaining smaller gaols could boast such a diverse range ofoccupations.

35 Competition from mainland producers and the need to upgrade the equipment being used for processingwere also cited as reasons for the decision to discontinue cultivation (ARSStH, 1887, QVP, vol. 1, 1888, pp.919-20).

36 W. Townley to Under Col Sec, 5 September 1891, QSA COLlA671 [10118].

37 Principal Gaoler's Journal, HM Prison, Thursday Island, 1891-97, QSA PRJ 13/1-2.

J; [)ocik or IJeflaJlt 130dies') 159

Illustration 3.3: St Helena Penal Establishment: Field Gang, 1911 (ARC-G, 1912)

Illustration 3.4: St Helena Penal Establishment: Tailor's Shop, 1915 (ARC-G, 1915-16)

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Illustration 3.6: HM Prison, Brisbane: Mat-making Workshop, 1912 (ARC-G, 1913)

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Chapter 3: !)ociJe or J)efiant J30dies? 163

'!. I)ociJc or Ikfi"'r·li j.'... ,. ..",)Wiles') 164

Chapter 3: Docile or Ddlant Bodies? 165

Throughout the period under analysis, work was seen as the primary reformative technique

employed by the authorities. It was perceived as serving the dual purpose of inculcating

habits of industry while simultaneously allowing industrious and well conducted inmates the

opportunity to earn indulgences and gratuities and, most importantly, a reduction in their

sentence. From the 1860s, prisoners serving sentences ofbetween twelve months and five

years were entitled to a one-sixth remission; between five and ten years, a one-fifth remission;

and over ten years, a one-quarter remission. Prisoners on their second conviction were

eligible for only half of their remission entitlement, and those on their third were not entitled

to a reduction in their sentence.38 This practice ofdenying the same remission opportunities

to all prisoners serving sentences ofmore than twelve months, regardless of the number of

convictions, eventually emerged as a deficiency in the system. It had become obvious by the

early 1880s that without any remission to look forward to a prisoner had no incentive to be

well behaved and industrious. At Townley's insistence the regulations were altered to make it

possible for prisoners to earn a remission regardless of their previous convictions.39 But when

the new rules and regulations were gazetted in 1892, a mark system was introduced to replace

the old practice of granting partial remissions on the basis ofgood behaviour.

The mark system was only employed for prisoners serving sentences of twelve months or

more. It is a technique that operationalised Foucault's three main instruments ofdisciplinary

power: hierarchical observation, normalising judgement, and examination.4o Each day an

assessment was made of the behaviour of each prisoner by placing marks on a sheet under the

following categories: "orderly", "industrious", "disorderly", "idle", "no work available",

"locked up in cell in punishment", "overtime", or "sick". These sheets were to be inspected

daily by the superintendent and recorded once a month in the mark register. Before the tenth

day of each month the superintendent of each institution was to forward to the Comptroller­

General a form with the names and details ofprisoners due for remission, along with the total

number ofmarks each had earned in the categories previously outlined. An overall

assessment was made according to the following principles:

38 See "Queensland Prison Regulations", QGG, vol. 9, no. 74, 29 July 1868, p. 862; and "Rules andRegulations for the Management ofSt Helena Penal Establishment", QGG, vol. 14, no. 78, 22 August 1873,p. 1398.

39 Acting superintendent Townley, St H:01ena, to Col Sec, 9 Apri11883, QSA COL/A357 [1742]; andRegulations of the Penal Establishment, St Helena, 1 November 1884, QSA COL/A469 [4534].

40 Foucault, Discipline and Punish, pp. 170-94.

Chapter 3: Docile or De!lant Bodies? 166

In dealing with the cases sent in for remission where the conduct of the prisoneris returned as good and he has earned the whole number of"orderly" and"industrious" marks obtainable, the full remission will be recommended; but forevery "disorderly" mark he shall lose from his remission two days, for every"idle" mark he shall lose one day; and for each day passed in a punishment cellfor misbehaviour he shall lose one day; and ifa prisoner while in prison issentenced to corporal punishment, three days' remission shall be deducted foreach lash inflicted.41

The "idle" and "disorderly" marks also resulted in deductions of three pence and sixpence

respectively per mark from the total gratuity earned by each prisoner. Thus affecting their

short tenn capacity to subsist following discharge.

Prisoners were entitled to be notified of their perfonnance at the beginning ofeach week. But

mere verbal notification was not considered sufficient. On the last Saturday ofevery month a

card showing the total number ofmarks earned during that month was displayed in each

prisoner's cell. The conspicuous display of the marks card was calculated "to keep constantly

before the mind of the prisoner the value ofhis marks as advancing or retarding his

remission".42 As well as placing the responsibility fOf detennining remissions in the hands of

the prisoners themselves, the system also had the advantage ofallowing for the more efficient

exploitation ofeach inmate's labour power. Remissions were now not exclusively dependent

upon good behaviour, but were also earned by the perfonnance of remunerative labour in the

prison industries. Work afforded inmates some opportunity to break the monotony ofprison

life, but its central importance in the remission process ensured that it remained a reasonably

disciplined affair - it was both a release and a method for enhancing discipline. Work

perfonnance was also closely tied to the reward and punishment systems.43

The prison experience was also characterised by a monotonous diet that was intended simply

to maintain an inmate's health and vitality. This important aspect ofpenal administration had

for many decades occupied British and colonial parliamentary inquiries, with the less­

eligibility principle determining the contours ofdebate.44 In Queensland in the l860s,

41 "Rules and Regulations", 1892, p. 299.

42 "Rules and Regulations", 1892, p. 299.

43 For a discussion, see Goffman, Asylums, pp. 86-7.

44 On England see, for example, McConville, A History ofEnglish Prison Administration, pp. 240, 357-8,and 417-9.

Chapter 3: Docile or Defiant Bodies? 167

discussion was usually focussed on the undue leniency of the prison dietary, despite

complaints to the contrary from many disgruntled inmates. The latter received some support

in 1867 from the visiting surgeon of Brisbane Gaol when he suggested that the hard labour

prisoners should have their meat ration increased.45 SheriffHalloran responded with a

niggardliness typical ofcolonial penal administration. He expediently proposed that the

maize meal ration be reduced so that an increase in the meat could be made without inflating

the overall cost of the prison dietary. His superiors, however, refused to give permission for

the change, arguing that the ration was already "too liberal" and that the only appropriate

alteration would be a reduction.

Until the late-1880s, the problems ofneglect, poor management, and corrupt suppliers

combined to create a situation in which little uniformity existed between the dietary scales in

place at each penal institution. The colony's lockups were another category altogether. In

these more isolated institutions, the dietary provisions were essentially left to the discretion of

each individual lockup keeper, with quality and quantity being determined by his

benevolence. Consequently, many prisoners were, for lengthy periods, fed nothing but bread

and water.46 The 1887 commissioners drew attention to many of the problems with prison

dietaries, emphasising that the minimum required to maintain health and strength was the

basic goal for administrators, but ~t the same conceding that some variation in the type offood

should be offered (pickled or salted fish was suggested).47 There was little change after the

inquiry, however. A comparison ofthe dietary scales in force up to the 1887 inquiry and

following the introduction ofnew rules and regulations in 1892, demonstrates that there was a

slight improvement in the volume ofbread, meat and vegetables issued to the longer term and

hard labour prisoners, but the scales were left largely unaltered (see Appendix 4).

The provision ofaccommodation was another area in which discrepancies frequently existed

between institutions. This is especially apparent in the quality ofaccommodation provided,

and in the availability ofcell and ward space. The penal system was frequently criticised for

housing prisoners in conditions unfit for human habitation.48 Insufficient bedding, vermin-

45 Sheriff to Col Sec, 30 August 1867, QSA COLlA94 [2123].

46 BI, p, 698,

47 BI, p, 698.

48 For example, the report and minutes of evidence of the 1887 Board of Inquiry contain much evidence ofless than adequate conditions,

Chapter 3: Docile or IkfJant Bodies? 168

infested linen, poor ventilation and inadequate sewerage arrangements are but a few examples

of the deficiencies that commonly affected the quality ofaccommodation. Inmate discomfort

was intensified by the practice ofconstructing cells and wards that fell short of the dimensions

considered satisfactory to maintain the health ofinmates.49 A measure of the insufficiency of

space for Queensland's prisoners can be estimated by comparing the volume ofair space

available in a few colonial penal establishments with the minimum requirement in Britain at

the time - 800 cubic feet per inmate. At St Helena in 1887, the average allocation of air in the

cells and wards for each inmate was just over 200 cubic feet, at Toowoomba Gaol it was 238

cubic feet in the large dormitory (even less when overcrowded) and at Roma Gaol, during the

oppressively hot summer months, it was consistently under 300 cubic feet (depending on the

extent ofovercrowding).50 It is not hard to imagine the suffocating conditions that were

created in the frequently hot and humid climate ofQueensland.

Added to these design faults was the problem ofovercrowding that resulted from insufficient

cell and ward space. We have already seen in chapter two that overcrowding was an almost

daily concern for Queensland's penal administrators in the decades before 1890. The

Brisbane, Townsville, Rockhampton, Toowoomba, and Fortitude Valley Gaols all

experienced periods of extreme overcrowding during these years. Following this period, it

was generally only the smaller prisons, police gaols and lockups that faced similar difficulties

as the decline in prison admissions reduced the demand for cell space.S1 But apart from a

general discomfort for the inmates and a persistent annoyance for their keepers, there were

other important consequences ofprison overcrowding. Perhaps the two most important were

an increased chance of illness and a greater likelihood ofdisciplinary problems amongst the

inmate population.

Regardless of the level ofovercrowding, prisons were less than ideal institutions for inmates

suffering from illnesses that required sanitary and comfortable conditions for successful

recuperation. But when inmates were confined in association, it mattered little what variety

or quantity ofdisinfectant was being used - illness and infection was bound to occur.52

49 For a general discussion of cell sizes and types, see Kerr, Out ofSight, Out ofMind, pp. 153-4.

50 BI, pp. 709, 724 and 734.

51 Again, Norrnanton Prison is a good example. In 1893, it was forced to accommodate sixteen prisoners ineight dilapidated cells (Inspector of Police to Commissioner, 22 July 1893, QSA PRI/A48 [1924]).

52 See the comments of the 1887 commissioners in BI, p. 688.

Chapter 3: Docile or Defiant Bodies? 169

Toowoomba Prison at the time of its closure provides a typical example ofhow the sanitary

arrangements could be placed under pressure. Here the women confined in the associated

wards during the night had to use two large tubs for their ablutions - one for urine and one for

excreta. The authorities had learned that it was essential to keep the matter separate as the

smell was oppressive if they were mixed. Yet there were always problems with tubs

overflowing, or sawdust not concealing the odour, especially when the ward was

overcrowded. 53 Men and women in single cells, however, were issued with their own night

tubs; but during periods ofovercrowding, when more than one inmate shared a single cell,

similar insanitary conditions prevailed.54

The danger ofhousing prisoners in close proximity was never more apparent than when

outbreaks of infectious disease occurred at the various gaols. The overcrowding in Brisbane

Gaol in 1865 led to a minor epidemic of an unidentified contagious illness in which six

patients suffering from fever were placed in isolation - two subsequently died.55

Rockhampton Gaol experienced similar problems the following year when a number of

inmates showed signs of fever and diarrhoea. At this time the gaol contained fifty male

prisoners in accommodation designed for no more than twenty_two.56 There were also cases

ofdengue fever at the Valley Gaol in 1897, scarlet fever amongst the warders' families at St

Helena in 1875 and 1891, along with typhoid in 1883, and enteric fever at Brisbane Prison in

1902_3.57 From May 1900 to mid-1903, the latter establishment implemented new admission

procedures in an effort to prevent an outbreak ofplague that had recently been discovered in

53 Acting Superintendent, Toowoomba Prison, to Comptroller-General, 20 July 1903, QSA PRlIA104[2324].

54 See, for example, inquiry into complaint ofprisoner T.A. Lambert against turnkey P. ODonoghue, 14February 1887, QSA PRlIA37 [0505].

55 Sheriff to Principal Under Secretary, 9 September 1865, QSA COLlA70 [2363]; and Sheriff to ColonialSecretary, 18 September 1865, QSA COLlA71 [2432].

56 Visiting Justice, Rockhampton Gaol, to Col Sec, 8 February 1866, QSA COLlA76 [0454].

57 Matron, Valley Gaol, to C-G, 11 January 1898, QSA PRIlA65 [0134]; Medical Officer to Under Col Sec,31 December 1875, QSA PRIlA10 [0011]. The cases of enteric fever at Brisbane Prison were found to havebeen caused by the "higWy polluted" water in the underground tank (see Commissioner ofPublic Health toUnder Sec, 29 May 1903, QSA PRIlA103 [1875]; Telegraph, 26 March 1903; and Brisbane Courier, 26March 1903 and 14 May 1903). During the outbreak of scarlet fever at St Helena in 1891, the authoritieswere forced to replace warders with police constables when the married warders and their families wereevacuated from the island (see Superintendent, St Helena, to Assistant Under Col Sec, 21 January 1891, QSAPRIlA42 [0332]; QPD, vol. 65, 6 October 1891, p. 1393),

Chapter 3: Docile or Defiant Bodies? 170

Chapter 3: Docile or Ddlal1t Bodies? 171

Brisbane. New arrivals had their clothes fumigated, were given a bath in tepid water with

carbolic soap and were kept in isolation for six days. Visitation rights were also temporarily

d . d . 58eme to new mmates.

A further consequence ofovercrowding was the threat of indiscipline from an inmate

population confined in association. In an overcrowded institution it became impossible to

maintain that most fundamental requirement ofprison administration - classification - thereby

restricting the possibilities ofkeeping dangerous prisoners separate from those considered

safe. In Brisbane Gaol in 1871, for example, a Chinese prisoner, classified as a lunatic and

who had recently had his death sentence commuted, was allowed to exercise unsupervised

with another capitally convicted prisoner while the warder went to have his breakfast. In the

short time that the warder was absent prisoner Kimboo bashed his fellow inmate to death. 59

The situation deteriorated in the new Brisbane Gaol in the l880s. The 1887 commissioners

condemned the system ofassociation introduced to deal with the overcrowding:

This was the associated system in its worst form, because it was superimposed ona style ofbuilding designed for the separate treatment ofprisoners. There could,of course, be no attempt at classification, and genuine penal discipline was, asmay be imagined, out of the question. 60

But the most disturbing outcom~ ofpoor classification was the threat of "contamination". The

possibility ofnew offenders, still reclaimable from a life ofcrime, acquiring the attitudes and

capabilities ofconfirmed criminals weighed heavily upon the minds ofall concerned with the

penal system. Ifoffenders were discharged in worse condition than when they were admitted,

the very purpose of incarceration was undermined. The prevention ofcontamination was a

fundamental requirement ofprison discipline in the colony, but it was a standard that proved

impossible to maintain, especially prior to the tum of the century.

In the nineteenth century, the principles of classification varied greatly according to

58 Superintendent, Brisbane Gaol, to Comptroller-General, 1 September 1903, QSA PRIJA105 [2714J; andPrincipal Gaoler's Journal, QSA PRJ 1/24, pp. 656-66. Previously new inmates were simply given a coldbath, unless they were old and infIrm, and had their clothes disinfected (Superintendent, Brisbane Prison, toComptroller-General, 1 October 1897, QSA PRIJA63 [2815]).

59 Kimboo had been admitted to the asylum on a previous occasion and was considered dangerous. Heeventually died in the asylum in 1893 (see Sheriff to Under Col Sec, 10 March 1871, QSA COL/A153[0712J; and Wolston Park Case Books, QSA A/45611, p. 69).

60BI, p. 718.

Chapter 3: Docile or Defiant Bodies? 172

jurisdiction, usually on the basis ofthe financial capacity ofeach for instituting a system

based on the penological standards of the time. Furthermore, there was usually at least some

variety within each jurisdiction, some institutions being constructed according to modem

principles ofprison design and allowing elaborate systems ofclassification, with others

remaining in operation despite their apparent obsolescence. Throughout the nineteenth and

early twentieth centuries there were many criteria for classifYing prisoners, including sex, age,

skill or occupation, purpose ofconfinement, nature and seriousness ofoffence, and frequency

ofconvictions. 61 In Queensland, it was sex, type of sentence and, following the introduction

ofnew regulations in 1892, frequency ofconvictions that were the basis of the various

systems ofclassification employed at different times (see Appendix 5 for the three systems of

classification employed during the nineteenth century). As discussed in chapter two, later we

find a form ofenhanced classification, utilising specialist institutions such as the inebriate

asylum. But for the period under analysis, it was the prison that was the primary site for the

classification ofcriminals.

As we have seen in chapters two and three, implementing an effective system ofclassification

was one ofthe most enduring deficiencies in Queensland's penal system. It was a problem

that featured in every official inquiry into the penal system and was widely acknowledged

beyond the sphere ofgovernment. As Queensland entered the twentieth century, the problem

ofinadequate classification stood as a poignant reminder ofhow its penal system remained

out of step with good practice, in direct conflict with the international trend towards greater

individualisation in the practice of incarceration. But it was not only overcrowding that

hindered classification, there was also a lack ofwill on the part ofthe authorities. Even at St

Helena, the premier penal establishment in the colony, accommodating the majority oflong

serving prisoners, classification was impossible. In 1882, for example, the Brisbane police

magistrate, Phillip Pinnock, expressed his hesitance in sending young men to prison at St

Helena where they would be forced into association with older, confirmed criminals.62 The

problems at St Helena were that the work regime required a high degree of association

between inmates of various classes and the associated wards prevented a complete system of

classification at night - both, problems that could have been remedied with an appropriate

financial commitment. Much worse, an institution like the Valley Gaol,operating variously

61 For a brief discussion, see Kerr, Out ofSight, Out ofMind, pp. 155-6.

62 Police magistrate Pinnock to Col Sec, 19 August 1882, QSA COLlA343 [4490].

Chapter 3: Docile or Deilant Bodies? 173

as a remand, short-term detention and transit facility for female offenders, housed together

first offenders, habitual offenders, prisoners on remand, drunkards, lunatics, debtors, and

neglected children. The accommodation for particular classes ofprisoner also varied greatly.

The findings of 1887 board of inquiry with regards to remand prisoners demonstrates this

point (see above).

Despite the constant stream ofrhetoric emphasising the necessity ofclassification to the

reformation process, there were some remarkable deviations from good practice. For

example, there was the unfathomable practice employed at Blackall Gaol in the 1880s of

confining "bad" prisoners with short sentence prisoners. It was argued that the short sentence

men were less likely to conspire with rebellious types, as they were unwilling to jeopardise

their impending release.63 Such a system certainly was inconsistent with contemporary

penological theory, and seemingly defied commonsense. A similar policy had been pursued

at St Helena in its early years. In this institution the superintendent adopted a policy of

confining short sentence men with those on long sentences in the hope ofpreventing an

escape en masse.64 Strategies such as these may have been beneficial in maintaining prison

discipline, but they could hardly have been considered likely to assist in the reformation

process of the short sentenced men.

Even the prisoners could be relied upon to espouse the virtues of separation. In 1886, one

inmate highlighted the deficiencies in the St Helena system, arguing that complete separation

was the only sure method for deterring criminals from future offending:

The most effective treatment is solitary confinement and small rations. There isnothing prisoners dislike so much as solitude and short commons. An old gaolbird does not mind going to 8t Helena because he lives well and is able toassociate with others. You will never do any good here til you go in forseparation. Criminals don't stay longer than they can help in a country wherethey have to under-go separate treatment when they get into gaol.65

His theory may have found support amongst some ofQueensland's penal administrators, but

there was little chance that a system ofcomplete separation could ever be considered a

worthwhile investment in the colony. In any case, by this time international opinion was

63BI, p. 59.

64QPD, vol. 9, 27 August 1869, p. 829..

65 Comments ofprisoner Donovan, recorded by Gaoler, Brisbane Gaol, 6 May 1886, Principal Gaoler's. Journal, QSA PRI 1/24.

Chapter 3: Docile or Defiant Bodies? 174

gradually shifting away from the concept ofcomplete separation as an effective reformative

strategy.

The 'Dialectic of Control'

As mentioned in the introduction, Foucault's account of the prison depicts the inmate as a

docile body upon which all the strategies ofdiscipline and surveillance are brought to bear.

The reader ofDiscipline and Punish is left with the impression that prisons were institutions

in which all the power was vested in the hands ofthe authorities, and the inmates were forced

to comply with prescribed rules and regulations, incapable of exerting any influence on the

environment in which they were confined. In reality, however, the power relationship in the

prison was less ofa monopoly and more ofa contested phenomenon, subject in part to the

agency of the inmate population. In penal institutions role segregation was difficult to

maintain. The certainty of roles for inmates and officials alike was frequently collapsed in the

interests ofmaintaining a mutually functional environment. It is perhaps more useful to look

at the phenomenon ofpower in a penal setting in terms ofwhat' Anthony Giddens has

described as the "dialectic ofcontrol" .66 In the words ofGiddens,

All strategies of control employed by superordinate individuals or groups callforth counter-strategies on the part of subordinates.... No matter how great thescope or intensity ofcontrol superordinates possess, since their power presumesthe active compliance ofothers, those others can bring to bear strategies of theirown, and apply specific types of sanctions.67

These counter-strategies did not simply involve overt acts of resistance; they also included

other tactics in which defiant inmates tested the integrity of their keepers and exploited the

degree to which warders required their consent to maintain order in the prison.

Possibilities for subverting the penal regime frequently came from exploiting dishonest,

inefficient or inexperienced prison staff. Misconduct on the part of the warders was a

frequent occurrence.68 Usually this amounted to returning incorrect counts ofprisoners after

66 Anthony Giddens, The Nation-State and Violence: Volume Two ofA Contemporary Critique ofHistoricalMaterialism, Polity, Cambridge, 1992, p. 11.

67 Giddens, The Nation-State and Violence, pp. 10-11.

68 The following material has been gleaned from the following sources: Warders' defaulters book, HM PenalEstablishment, St Helena, 1867-1916, QSA A/19871; Turnkeys' Defaulters Book, HM Prison Brisbane,1891-1927, QSA A/19877; Default Book, Toowoomba GaoVPrison, 1864-1903, and Brisbane Prison

Chapter 3: DociJe or Defiant Bodies? 175

roll calls (which carried the minor penalty ofa caution), but it occasionally involved far more

serious offences. Falling asleep when on night watch, or not being wholly attentive in the

execution of their duties were perhaps the most common. Occasionally warders were caught

pilfering prison materials and utilising prisoner labour for private purposes, with essential

rewards frequently presented to participating inmates. The importance of diligently following

procedure and remaining alert while on duty was a crucial aspect of a warder's activities.

Failure to do so could easily result in a serious breach ofprison discipline or even end in

tragedy. In 1892 warder Gailbraith was fortunate not to have been the cause of such an

outcome when he left a loaded revolver in an open cell while marching fifty prisoners out of

the block, anyone ofwhom could have snatched the weapon. In the same year female

turnkey Elizabeth Joseph was not so lucky while on duty at Toowoomba Prison. She

mistakenly administered three spoonfuls ofcarbolic acid to a sick prisoner, thinking it was the

patent medicine "Black Draft". The prisoner died soon after, and Joseph was immediately

d· . d 69Ismlsse .

Ironically, the range ofdisciplinary measures employed against the warders resembled those

in place for troublesome prisoners. They included cautions, reprimands, monetary fines,

suspensions, and dismissals. The most common method for dealing with serious offences,

however, was to transfer an offend~r to another institution - a technique oflast resort that

could also be used against recalcitrant prisoners. Transfers were usually handed out to

warders who had repeatedly been caught under the influence ofliquor while on duty?O

Following numerous drunkenness offences, warder Gailbraith was transferred to Stewart's

Creek in 1903 and ordered to join a total abstinence society, or be dismissed. He was not

alone - the various prison default registers bear testimony to the difficulty ofpreventing

alcoholism amongst the warders. The problem was particularly bad at St Helena where the

staffhad to endure long periods of isolation from the pleasures of a public house.?! In an

attempt to relieve their situation, some frequently succeeded in smuggling alcohol onto the

(female division), 1903-1948, QSA N19878; and St Helena diary, 1895, JOL OM78-32.

69 Under Sheriff to Under Col Sec, 7 July 1892, QSA COLlA703 [8314].

70 Warder Lillis was transferred from Townsville to Roma Gaol following a number of drunkenness offences.He was eventually dismissed after further breaches of discipline at the new institution (Sheriff to Under ColSec, 28 March 1892, QSA COLlA692 [3701]).

71 The problem of isolation was exacerbated with the decision to remove the warders' families from the islandin 1891 (see Evening Observer, 5 February 1891).

Chapter 3: Docile or Defiant Bodies? 176

island precinct. In desperation, the authorities resorted to the practice of searching the

warders' private belongings for concealed spirits.72

It was the corruptibility ofmany warders that enabled enterprising inmates to favourably alter

their material conditions. Warders were frequently reprimanded for giving prisoners

contraband materials like newspapers, tobacco and even alcohol. There were also cases of

staff smuggling correspondence into and out ofprison on behalfof favoured inmates.73 The

dispenser at Brisbane Prison was even apprehended selling the paintings of an inmate outside

the prison.74 There is also some evidence to suggest that sectarianism played a role in

cohering warder-inmate allegiances.75 In 1885, warder O'Donoghue was accused of favouring

Irish Catholic inmates by frequently overlooking contraband tobacco found in their

possession.76 Usually, however, warders bestowed favours on particular prisoners as

reimbursement for services rendered.?? Chiefwarder McDonald, for example, gave

preferential treatment to an inmate of Brisbane Gaol who acted as his personal barber, shaving

him each morning.78 Others rewarded prisoners for acting as informers, notifying trusted

warders of illicit activities or handing in contraband articles in return for favours. This latter

function was important in helping to maintain a safe and ordered workplace for the warders.

But there was another, more formal way in which favouritism became entrenched in the

prison community and further increased resentment amongst the inmate population. This was

the practice ofemploying prisoners as billets to carry out specific tasks. At Townsville Gaol a

72 Superintendent, St Helena, to Under Col Sec, 1 March 1882, QSA COL/A332 [1162]. See also visitingjustice to Col Sec, 13 June 1873, QSA COL/A183 [1091].

73 There are many examples recorded in the following: Principal Gaoler's Journal, 13 August 1885, QSA PRI1/24; Turnkeys' Defaulters Book, HM Prison Brisbane, 1891-1927, QSA A/19877; Warders' defaulters book,HM Penal Establishment, St Helena, 1867-1916, QSA A/19871. See also Brisbane Courier, 13 February1913.

74 CoG to Principal Under Secretary, 16 May 1894, QSA COL/A771 [5533]. The prisoner was eventuallypunished with the loss ofhis painting privilege.

75 The 1892 regulations specifically condemned warder activities motivated by sectarian feelings (see "Rulesand Regulations", 1892, p. 291).

76 Principal Gaoler's Journal, 13 August 1885, QSA PRI 1/24.

77 For an example of allegations offavouritism in Stewart's Creek Penal Establishment, see SuperintendentDownie, Stewart's Creek, to Comptroller-General, 17 June 1901, QSA PRIlA87 [2052]; and New Eagle, 1June 1901.

78 CoG to Principal Under Secretary, 16 May 1894, QSA COL/A771 [5533].

Chapter 3: Docile or Defiant Bodies? 177

few women were employed as cooks in the gaoler's residence and one acted as a music

governess for his children.79 The situation was similar at Toowoomba Gaol where domestic

labour was in even more plentiful supply.80 At Brisbane Gaol, the cooks, schoolmaster,

gaoler's servant, and even the dispenser were all prisoners. 81 The rewards for such service

included greater freedom within the confines of the prison, frequent access to authority figures

and desirable articles that were normally beyond the reach of ordinary prisoners (like extra

food, tobacco and writing materials) and, after 1892, the option of acquiring extra marks by

performing overtime. It was revealed during the 1887 inquiry that the billeted men at

Brisbane Gaol were allowed the comfort of sleeping in the hospital while some sick prisoners

were denied similar access.82 The commissioners condemned the practice ofemploying

prisoners as billets:

The evidence we obtained showed that it begets suspicion on the part of fellow­prisoners; it leads to charges of favouritism being made - sometimes with truth ­against the officials, and to a general looseness of control. Many of the gravestevils discovered in the administration of the gaols were due directly to the rulewhich permits prisoners being employed in billets or as servants by gaolofficials.83

It was recommended that the practice be outlawed when the new prison regulations were

drawn up - a recommendation that did not appear to be implemented.

Favouritism aside, there are other examples ofhow the warder-inmate relationship was

susceptible to inmate influence. One incident that effectively highlights the interdependence

that existed between inmate and warder occurred at 8t Helena during 1883.84 As the prisoners

were put to work one morning, someone stole a knife from an overcoat that warder O'Brien

had left unattended on "B" verandah. Aware that he would be punished for leaving the article

unattended, O'Brien accused, and then threatened, prisoner Hartigan, to whom he had shown

79 BI, pp. 733 and 963-6.

80 BI, pp. 999-1018. The employment ofbillets at Toowoomba Gaol received special criticism in the reportof the 1887 Board ofInquiry (see BI, p. 725).

81 The latter position involved access to a variety of dangerous pharmaceuticals and poisons.

82BI, p. 720.

83BI, p. 694.

84 For details of the incident, see W. Townley, Acting-Supt St Helena, to Under Col Sec, 1 August 1883,QSA COL/A366 [3932].

Chapter 3: Docile or Deflant Bodies? 178

the knife on a previous occasion. The prisoner denied the charge and complained to the

acting-superintendent, William Townley, who immediately convened an inquiry to gather

statements from the parties concerned. To make matters worse for the warder, the knife

contained a tiny photograph "of two naked women in most obscene positions" - desirable

contraband for men deprived ofheterosexual contact. Following the inquiry, Hartigan

produced the lost article, claiming that another prisoner had left it with a note asking him to

hand it over to the superintendent. Considering Hartigan's previous record, the evidence

would suggest that he had at least played some role in the theft of the knife.85 Such an action

was certainly carried out with the knowledge that the warder would be punished for his

indiscretion. In fact, prior to the arrival ofthe Visiting Justice, O'Brien attempted to tender his

resignation, fearful that he would be discharged for misconduct. The incident neatly

illustrates how prisoners were able to influence the careers of their keepers, and occasionally

remove obstacles to their comfort while in prison. For the successful prosecution of their

duties, the warders needed a certain degree ofcompliance from the inmates to maintain

equilibrium in the prison environment.86

Prisoner Hartigan had already demonstrated his willingness to become involved in the

unseemly side ofprison politics. In 1880, in collusion with warder Sneyd, he devised a

scheme to bring down another warder. The two planned that Hartigan would pass a cheque to

trade instructor Smyth, hoping to incriminate him for trafficking with a prisoner. But their

plan came unhinged when chiefwarder Hamilton intercepted a note from Hartigan to Sneyd.87

He later caught Sneyd receiving the forged cheque. Following an inquiry, Sneyd was

dismissed from the service for conspiracy against a fellow warder. This earlier incident

demonstrates the influence prisoners could wield ifthey were able to establish mutually

beneficial relationships with warders. It was through exploiting associations with corrupt

85 See HM Penal Establishment St Helena, General record and description ofprisoners, QSA A/18557, p. 48,for details of Hartigan's prison record. In 1869 Hartigan had been sentenced to one month of solitaryconfmement on bread and water for assaulting a warder with his night tub and brandishing a knife(Deposition Book, St Helena Penal Establishment, 24 August 1869, PRI2/l). He was eventuallyapprehended at gun-point. He was then transferred to Brisbane Gaol as he had alienated so many ofhisfellow prisoners (Visiting Justice, St Helena, to Col Sec, 25 August 1869, QSA COLlA130 [3246]).

86 The incident also demonstrates how prisoners were occasionally able to scavenge prohibited items. Whenthe knife was surrendered it was missing its two blades - articles that could be fashioned into dangerousweapons or tools for mounting an escape.

87 For details of the incident, see Colonel Ross and Sir St G. Ralph Gore to Col Sec, 18 June 1880, in QSAPRIll, Correspondence relating to Reformatory for Boys at Lytton, 1880-1881.

Chapter 3: Docile or Defiant Bodies? 179

warders that inmates attempted to make significant improvements to their conditions of

existence. In the precarious environment of the prison temporary relationships were

frequently forged to achieve certain ends.

Resistance and Retribution

Individual resistance

Many prisoners employed a variety of techniques for resisting the prison regime and indulging

in practices that provided them with some association with life outside prison. For example,

in the sexually repressed environment of the prison, homosexual dalliances, or enduring

relationships, were familiar techniques for realising sexual gratification and, on some

occasions, as expressions of resistance to the severe limitations imposed on the inmate

population.88 In keeping with the wider colonial attitudes to homosexuality, such behaviour

was not looked upon kindly by the authorities.89 Stem measures were taken to identify, and

then to punish, those inmates found guilty ofcommitting these offences.9o

Communication with the outside world was another basic desire on the part ofprisoners that

the authorities sought to curtail. The 1892 regulations stipulated that under normal

circumstances an inmate could send and receive one letter every two months (previously they

were allowed to receive one letter every month), and that they could receive visitors once

every two months, with each encounter lasting a maximum oftwenty minutes. All

correspondence was to be confined to subjects personally concerning the prisoners and their

relatives and friends, and under no circumstances could they contain any information about

the news of the day. For political prisoners, such regulations were zealously enforced by the

prison authorities. The shearers' strike prisoners, in particular, were singled out for special

attention when they attempted to communicate with their supporters on the outside. Their

letters were continually censored or simply prevented from reaching their intended

88 For a discussion see, for example, O'Brien, The Promise ofPunishment, pp. 90-108.

89 For a discussion ofhomosexuality in the colonial environment, see Clive Moore, Sunshine and Rainbows:The Development ofGay and Lesbian Culture in Queensland, University ofQueensland Press, St Lucia,2001, chs 2-5.

90 See, for example, Superintendent McDonald to Col Sec, 2 August 1869, QSA COLlA129 [2939]; GaolerSmythe to Sheriff, 29 July 1887, QSA P1li!A37 [1630]; Police Magistrate to Under Col Sec, 21 February1888, QSA PRIlA39 [0283]; Superintendent, Brisbane Prison, to Comptroller-General, 14 February 1899,QSA PRiiA70 [0577]; and BI, pp. 949-70.

Chapter 3: Docile or Defjant Bodies? 180

destinations. Occasionally, however, messages were successfully smuggled into and out of St

Helena. Alec Forrester, for example, wrote messages on toilet paper and had them conveyed

to an outside source.9! The prisoners even managed to secure for a time copies ofWilliam

Lane's Cosme, the utopian socialist journal ofthe New Australia settlement in Paraguay.92

The lengths certain inmates would go to to establish some communication with the outside

world seemingly had no limits. Townley had known ofprisoners sharpening a piece ofwood

for use as a quill and then using their own blood as a substitute for ink.93 Usually, it was with

the help of visiting friends and relatives, or through bribing a warder or soliciting the services

ofa fellow inmate due for release that unauthorised letters were conveyed to the outside

world.94 There were certain risks associated with such activity that went beyond simple

punishments for the guilty parties. The authorities could often gain a valuable insight into

inmate subculture from the discovery of illegal letters. From some correspondence sent to the

strike prisoner "Happy Jack" McNamara, the authorities were able to ascertain how

discharged prisoners managed to travel on steamers without government passes or money to

.c. h' 95pay lor t elr passage.

The successful smuggling ofletters to the outside world was potentially an extremely

embarrassing event for the authorities, not just because it highlighted laxity ofprison

discipline, but also because ofthe content of the correspondence. The publication ofprisoner

Troden's comments in the Brisbane Courier in 1872 is one example ofan inmate's appeal

reaching the press.96 Such correspondence undermined public confidence in the sentencing

process and, on some occasions, exposed details ofprison life to public scrutiny. Prisoner

Mapleston's painstakingly researched analysis of the characteristics ofhis fellow St Helena

inmates was being prepared for publication in an unnamed newspaper before being

91 Supt, St Helena, to Sheriff, 20 June 1992, QSA PRIlA43 [1695].

92 Supt, St Helena, to CoG, 4 March 1898, QSA PRlIA66 [0824]. For details on the radical journalist andlabour leader, William Lane, and his utopian settlement in Paraguay, see Gavin Souter, A Peculiar People:William Lane's Australian Utopians in Paraguay, University ofQueensland Press, St Lucia, 1991.

93 Supt, St Helena, to Sheriff, 20 June 1992, QSA PRIlA43 [1695].

94 See, for example, Rev T Jones to Sheriff, 10 December 1872, QSA PRIlA5 [0064]; and Principal Gaoler'sJournal, 20 January 1887, QSA PRI 1/24, p. 272.

95 Principal Under Sec, NSW, to Principal Under Sec, 22 June 1894, QSA PRIlA72 [1644].

96 Brisbane Courier, 20 November 1872.

Cbapter 3: Docile or Defiant Bodies? 181

intercepted by prison staff. It was almost a year after his imprisonment, in late September

1888, when Mapleston was caught attempting to secrete a small collection ofpapers in a hole

in the ground.97 His brief treatise contained much information on the criminal histories ofhis

peers and was critical of the practice of imprisoning first offenders.

The acquisition of contraband was another area in which inmates went to great lengths to

subvert the tight security of the prison environment. No doubt concerned at the potential

effect a radical publication would have on the inmate population, Pennefather repeatedly

refused to purchase a copy ofLane's Workingman's Paradise for the establishment's library.

Despite his resolve, he did not count on the ingenuity ofone inmate. When a strike prisoner

was temporarily transferred to Brisbane Gaol he managed to acquire a copy of the book and

memorised the entire text. When he returned to St Helena, he recited it in instalments to his

fellow prisoners.98 More commonly, it was articles of food or tobacco that were smuggled in

and traded by prisoners.99 These articles were also gambled by inmates in prohibited games

involving, for example, cards, dominoes, and dice. loo

We have already seen in the Kimboo case the dangers that could arise from confining

mentally unstable prisoners with others. But there were other situations in which prisoners

could become violent with each other, thereby challenging the roles prescribed for them.

Daily contact with the same personalities created opportunities for petty jealousies, factional

alliances, intra and interracial confrontations, and other interpersonal conflicts to develop,

with internecine disputes the usual outcome. The case histories of 8t Helena's inmates

frequently contain examples ofprisoners being punished for quarrelling and assaulting one

another.lOI

For example, in 1892 a Javanese prisoner received a number ofpunishments for

97 Superintendent, St Helena, to Under Col Sec, 3 October 1888, QSA COL/560 [8704].

98 Stuart, Part ofthe Glory, pp. 160-3.

99 See, for example, police court depositions in case ofThomas Copp, 26 May 1887, QSA PRIlA62 [2429];Comptroller-General to Principal Under Secretary, 16 May 1894, QSA COL/A771 [5533]; and PrincipalGaoler's Journal, 25 December 1886, QSA PRI 1/24, pp. 267-8. See also the numerous cases ofprisonersbeing punished for the possession of contraband in HM Penal Establishment St Helena, General record anddescription ofprisoners, QSA A/18557; and St Helena diary, 1895, JOL OM78-32.

100 The various punishment books and records of individual prisoners contain numerous references to inmatesbeing punished for gambling (see, for example, general record and description ofprisoners, St Helena PenalEstablishment, 1875-1900, QSA PRI217-8). See also, Lincoln, The Punishment ofCrime in Queensland, p.171.

101 See, for example, General record and description ofprisoners, St Helena Penal Establishment, 1875-1900,

Chapter 3: Docile or Defiant Bodies? 182

fighting with other inmates, culminating in a sentence of fourteen days solitary confinement

and twelve lashes for stabbing a Chinese prisoner. 102 In the same year, an Islander was

punished for biting off half the ear ofa European prisoner. 103 In 1902, a European struck a

Chinese prisoner on the head with an axe, smashing his skull and almost killing him. 104 Two

years later, a Chinese prisoner attacked a European inmate with a hoe after receiving some

provocation. lOS It should also be remembered that there were incidences in which warders

I d · 106assau te pnsoners.

Acts ofviolence were also directed towards the prison staff Offences of this nature

represented a direct challenge to authority and posed a grave threat to prison discipline. As a

consequence, they were invariably met with harsh punishment. In most cases, the injuries

sustained by the warders were minor and the penalties imposed were simply to reassert their

authority within the prison power structure. On a few occasions, however, the inmates'

actions could become life threatening. The most serious ofthese occurred late in 1897 when

prisoner William Archer attacked and stabbed warder Henry Dodd in the tailor's shop at St

Helena. 107 The attack was actually intended for warder Downie who, unknown to Archer, had

been temporarily relieved by Dodd so that he could vi~it the water closet. 108 The warder

received three life-threatening stab wounds to his stomach and was transferred to Brisbane

Hospital for emergency surgery. He died the following day. 109

Archer had for some time been a troublesome inmate. He had two convictions for assaulting

QSA PRI2/7-8.

102 Superintendent, St Helena, to Sheriff, 27 January 1892, QSA COLiA686 [1047]; General record anddescription ofprisoners, St Helena Penal Establishment, 1875-1895, QSA PRI2/7, p. 57.

103 Superintendent, St Helena, to Sheriff, 27 January 1892, QSA COLlA686 [1047].

104 Brisbane Courier, 2 June 1902.

105 Report of assault on Lung Gee, 9 August 1904, QSA PRIlAl13 [0294].

106 G. Taylor to Col Sec, 30 November 1893, QSA COLlA755 [14082].

107 Archer had been convicted ofbreaking into a shop with an accomplice and stealing £35 worth of tweeds,clothing material and trimmings, and a cheque to the value of£1. In considering the previous records of thedefendants, the judge did not look kindly on the offence and sentenced Archer to ten years penal servitude,and his accomplice to twelve (see Brisbane Courier, 17 August 1897).

108 Supt, St Helena, to C-G, 9 April 1898, QSA PRIlA67 [1335].

109 This was the only murder of a warder occurring in Queensland in the period 1.Ulder analysis.

Chapter 3: Docile OJ" DefJant Bodies? 183

warder Falvey, once with a plate ofhominy, and the other with the lid ofhis night tub. For the

first offence he received an additional sentence of six months with hard labour. On the

second occasion, he was sentenced to fourteen days in a punishment cell and twenty-four

lashes - the corporal punishment eventually being remitted. 110 After each incident he was

restrained in a straight-jacket.1I 1 His case attracted the attention of the Worker, horrified that

a prisoner so obviously insane should be continually placed in solitary confinement each time

he committed an offence: "This is not a case for punishment, but for restraint. The authorities

partly recognise this, for instead ofgiving the prisoner the punishment meted out to other

offenders they put him in a straight-jacket".112 The warning signs were certainly there that

this prisoner could be dangerous. 113

Archer had long been upset that the authorities did not take seriously a statement by his

alleged accomplice that he had had nothing to do with the crime and was in fact innocent of

any misdeed. 114 The stabbing itselfwas precipitated by Archer's dislike ofworking in the

tailor's shop where, he believed, warder Downie had instructed a number ofprisoners to taunt

him. The prisoner's violent outburst can be seen as a reaction to his position ofpowerlessness

in the prison environment. When warder O'Donoghue suggested to Archer that, rather than

stabbing Dodd, he should have registered his complaint against Downie with the appropriate

officer, the prisoner responded by saying, "What use in going to the office; I have asked them

to shift me from the shops and they would not do so, but I have now shifted myself' .115

Archer was committed for trial at the following criminal sittings of the Supreme Court, but

died in Brisbane Prison before he could take the stand.116

110 General record and description ofprisoners, HM Penal Establishment St Helena, 1895-1900, QSA PRl2/8, p. 264.

III Supt, St Helena, to C-G, 15 October 1897, QSA PRIlA63 [2982].

112 Worker, 16 October 1897.

113 See also superintendent, StHelena, to C-G, 5 November 1897, QSAHOMlA15 [16067].

114 See Inspector to ChiefInspector ofPolice, 3 November 1897, QSA PRIlA68 [1669].

115 Supt, St Helena, to C-G, 24 February 1898, QSA PRIlA68 [1669].

116 See Regina v William Archer, no. 1, Brisbane Criminal Sittings, 30 May 1898, QSA SCT/CC133, for thedepositions in his case. He died ofparalysis of the heart - the inquest did not reveal any suspiciouscircumstances (see Inquest into the death of William Archer, 19 May 1898, QSA JUS!N263, 214/98; andBrisbane Courier, 20 May 1898).

Chapter 3: Docile or Defiant Bodies? 184

The above incidents demonstrate the frustration that could develop amongst inmates who had

little control over the environment in which they were forced to live. While this often

provoked outward expressions of violence, it also led many prisoners to turn inwards upon

their own bodies. There were many forms ofself-harm indulged in by prisoners, from refusal

to eat to self-mutilation with manufactured weapons,but the most dramatic were the suicide

attempts, both successful and unsuccessful, that regularly occurred in Queensland's penal

institutions. Most involved hanging with rope manufactured from cell bedding or prison issue

belts and clothing. In one case, a prisoner used two straps to hang himself - one was his belt;

the other, ironically, was normally utilised to fasten the muffs used for restraining violent

inmates. ll7 In another suicide, the inmate smuggled an implement used for stabbing holes in

paperwork back to his cell and during the night mutilated the inside ofone arm, eventually

expiring from loss ofblood. The cause ofhis irritation was merely a dyspeptic complaint that

could possibly have been cured with appropriate medical treatment. llS There were many

more failed attempts at suicide. These desperate actions invariably resulted in the

redesignation of an inmate as being of unsound mind and ensured a transfer, temporary or

h · hi'" hi' 1 119ot erwlse, to anot er tota mstltutlOn - t e unatlc asy um.

Some ofthe more shrewd inmates adopted some enterprising tactics in their perpetual struggle

for respite from the prison environment. In 1879, for example, a St Helena prisoner, widely

regarded as a malingerer, rubbed lime into a sore on his leg in the hope that it would appear

much worse than it actually was. After examining the prisoner's wound, the visiting surgeon

immediately ordered that he be transferred to Brisbane Gaol, believing that he did not have

long to live. Soon after arriving at his temporary accommodation he recovered from his

affliction. The authorities did not look kindly on his actions, and he was immediately

punished. He had, however, gained some temporary relief from his daily duties and usual

d. 120surroun mgs.

117 Under Sheriff to Under Col Sec, 22 July 1885, QSA COL/A431 [5361]. The inquest depositions can befound at QSA JUSIN121 (1885/395).

[18 The inquest can be fo~d at QSA JUS!Nl92 (1891/303).

119 The Wolston Park Case Books record a number of these cases. See, for example, prisoner Henry Meyers,QSAAl45606, p. 145; andAh Sam, QSA Al45609, p. 95. See also, the case ofan opium addict, AhHue,who had been restrained in muffs during the day and handcuffs at night while an inmate in Toowoomba Gaol.(Gaoler, Toowoomba Gaol, to Sheriff, 17 September 1885, QSA PRIlA33 [1535]).

120 William Harris to Col Sec, 24 February 1879, QSA COL/A272 [0753].

Chapter 3: Docile o[ Defiant Bodies? 185

Other inmates attempted to flee the oppressive environment of the prison. Such desperate

action carried with it certain risks, including the possibility ofbeing shot while attempting to

escape or, if recaptured, the infliction ofa flogging or some other stern punishment.

Nevertheless, escape attempts were common occurrences in the period under analysis,

especially in the early years. In 1866, for example, two prisoners successfully escaped from

St Helena island in a punt. Th~y were inmates of the Proserpine sent to work on the

construction of the quarantine station there. As a result of their success, a new system of

surveillance was instituted to prevent further escapes. 121 In the following year, three inmates

attempted to escape from the fledgling penal settlement. They were eventually recaptured

after remaining at large for a day and a night by concealing themselves in the dense scrub on

the island. Two received twenty-five lashes as punishment, the other thirty. 122 Fifty lashes

was the punishment for another two men who attempted to escape from the island in acrudely

constructed raft in 1869. 123 In 1866 two prisoners in Rockhampton Gaol were confined in leg

irons because they had repeatedly attempted to escape. 124

Escape attempts were an ongoing source of frustration for the authorities, but the continual

lack of funds prevented many badly needed renovations to the existing structures.

Occasionally successful escapes did provide the necessary motivation tq effect structural

change. For example, an escape ofa male prisoner from Toowoomba Gaol in 1887 brought

about an overdue structural improvement at the establishment in which a sentry tower was

erected to enhance the surveillance capacities of the warders. 125 But this was a rare exception.

In response to the escape and recapture of two prisoners from Townsville Gaol in 1882,

SheriffHalloran expressed an attitude of resignation:

It is greatly to be regretted that the escape of the two prisoners should have takenplace; but prisoners do often escape from the most secure Gaols everywhere,even when the greatest vigilance is exercised, and where as in the Home prisons

121 Visiting Justice, Proserpine, to Col Sec, 7 August 1866, QSA COL/A82 [2274J; and Sheriff to Col Sec,24 August 1866, QSA COL/A82 [2344J.

122 Superintendent, St Helena, to Principal Under Sec, 28 JlUle 1867, QSA COLIAn [1530]; andSuperintendent, St Helena, to Visiting Justice, 28 JlUle 1867, QSA COL/A99 [3386].

123 Visiting Justice, St Helena, to Col Sec, 12 January 1869, QSA COLlA116 [0134].

124 Visiting Justice, Rockhampton Gaol, to Col Sec, 8 February 1866, QSA COLlA76 [0454].

125 Sheriff to Under Col Sec, 5 September 1887, QSA COL/A515 [6991J; Under Sheriff to Under Col Sec,23 September 1887, QSA WORlA295 [2005]); and Toowoomba Chronicle, 16 August 1887.

Chapter 3: Docile or Defiant Bodies? 186

the number of Turnkeys is very much greater, in proportion to the number of. h' h' 1 126pnsoners, t an III t IS co ony.

Colonial Secretary Tozer was even more pragmatic in his attitude towards the escape of a

dangerous prisoner from Mackay Prison in 1898. When obliged to comment on the

appropriate action to be taken against the constable who was on duty at the time ofthe escape,

he commented:

I am never severe in these cases because they are the corollary ofparsimony ­What is wanted at Mackay is a gaol not a lockup cramped up as this one is, but ifwe must save money we do it at the expense of escapes of this kind which shouldnot be altogether chargeable to the men but to the system.127

But Tozer's frank response to the incident belied the extreme annoyance that escape attempts

created for the authorities. Escapes were expensive; they interrupted the rhythm of the prison

regime, resulting in work delays; they encouraged prisoner insubordination, including other

attempts to escape; and they also attracted unfavourable commentary from the press,

invariably provoking community outrage.

Collective resistance

Incidences ofcollective resistance occurred much less frequently but, when they did

eventuate, the consequences could be far-reaching, Between 1886 and 1889 St Helena

witnessed two cases ofcollective protest, each involving the majority ofthe inmate

population. The first of these was the one referred to in Chapter One, in which a petition from

a large number of St Helena's prisoners was prepared in protest at a range ofproblems in the

establishment. As already mentioned, the original petition, bearing 183 signatures, was

submitted to the superintendent in May 1886 for referral to the colonial secretary.128 His

decision not to respond in person, but to send the visiting justice to investigate, culminated in

a protest by some prisoners dissatisfied with their treatment at the hands of the superintendent.

The mutiny occurred soon after, when Townley ignored the regulations and ordered that all

inmates should take their coats to work. Seventy-three prisoners objected to what they

interpreted as mere pettiness on the part of the superintendent and refused to take their coats.

126 SheriffHalloran to Col Sec, 6 July 1882, QSA COL/A340 [3688].

127 Visiting Justice and Police Magistrate to C-G, 7 January 1898, QSA PRIlA65 [0152].

128 The petition is located with the evidence taken by Colonel Ross at St Helena on 5 June 1886, QSACOL/A469 [4534]. At this time, the inmate population ofSt Helena fluctuated around the 250 mark.

Chapter 3: Docile or Defiant Bodies? 187

They were punished for their disobedience. In protest at Townley's decision to punish the

men, the following morning every inmate left his coat in the yard and proceeded to work.

According to Thomas Skiffins, a representative of the protesting prisoners, Townley then

began to negotiate with some delegates and was only able to restore order by promising to

relay the prisoners' grievances to the colonial secretary. 129 This was enough to pacify the

prisoners in the short term. But further inaction on the part of the authorities was enough to

provoke the inmates into surreptitiously compiling another petition, which would this time

reach the office of the colonial secretary himself. 130

Unknown to the prisoners, the above chain of events would provide much ofthe motivation

for the government to establish the 1887 board of inquiry. In fact, the colonial secretary

belatedly added to the original terms ofreference of the inquiry the requirement that the

commissioners ascertain whether there was a legitimate basis to the St Helena prisoners'

grievances. I3l The outcome of the investigation, however, could hardly have been what the

protesting inmates had originally hoped for. There were both positive and negative

consequences, yet neither could be considered to have been intentional. On the positive side,

the inquiry enabled the prisoners to draw widespread attention to their particular grievances ­

a rare event in penal institutions when not accompanied by serious violence. The final report

of the inquiry condemned many aspects of Queensland's penal system and eventually led to

some improvements for the prisoners themselves - the introduction ofa mark system was

perhaps the most notable example.

But there was a negative consequence of their protest. They could not have expected that

their petition would actually assist in establishing the framework for the 1887 commissioners'

criticisms of the leniency ofprison discipline at St Helena. The commissioners were

confident that the motivation for prisoner discontent was the direct result ofwhat they

regarded as an informal system of indulgences devised by the St Helena authorities to reward

prisoners who had not appeared in the punishment books for six months. 132 If they exhibited

good behaviour for this period they were eligible for an extra ration of tea, sugar and tobacco.

129 Brisbane Courier, 2 August 1887.

130 See chapter one above for a discussion.

131BI, p. 712.

132RBI, p. 42.

Chapter 3: Docile or Deflant Bodies? 188

The prison regulations, however, clearly stipulated that the appropriate reward for

compliance with the system should be access to books from the prison library. The

commissioners adopted a stem response to revelations about the existence of this practice:

Prisoners are sent to a penal establishment for punishment, and from the first theyought to be made to realise that they must conform to discipline. To bribe aprisoner to obey the rules, is to place a low value on the rules themselves, and istherefore an encouragement to lax discipline. All prisoners do not receive theindulgences; those that have them not become discontented and irritable.Imagination runs riot, favouritism is charged against the officials, and a constantstate of tension is soon established. 133

Reiterating the logic of less-eligibility, the report recommended the complete abolition of

dietary and tobacco privileges, leaving only the possibility ofearning a partial remission of

sentence as the appropriate reward for good behaviour.

The commissioners' investigations and report was not the end ofthe story, however. Their

observations would not lead to significant changes in the penal system until the Prisons Act

was passed in 1890, and new regulations were introduced two, years later. In the meantime,

little changed in the administration of the colony's prisons, including St Helena. The

appointment ofPennefather to the position of superintendent did not bring with it an end to

the discontent among the inmates. On 17 October 1889, a mutiny occurred when the inmates

were mustered to receive their breakfast ration. In attempting to restore order, the

superintendent was compelled to threaten a violent response.

Despite attracting only minimal press attention, the mutiny constituted one ofthe most serious

breaches ofprison discipline ever to occur on the island. 134 Involving over one hundred

inmates, it was considered serious enough for Brisbane's two police magistrates to accompany

the visitingjustice to St Helena to assist with the process of taking depositions.

Unfortunately, their final report has not survived, but some evidence remains in the form of

remission petitions submitted by a number ofprisoners punished for their involvement in the

133 BI, p. 42.

134 Only the Brisbane Courier(l8 and 19 October 1889) and the Telegraph (25 October 1889) containedreports of the affair, and these were very brief. This lack ofattention by the press may well have been due totheir inability to accumulate significant infonnation about the circumstances of the mutiny. It shows howeasily the details of disturbances occurring within closed institutions can be concealed from outside scrutiny.Interestingly, neither the Sheriffs nor the superintendent's annual reports for 1889 contained any reference tothe mutiny.

Chapter 3: Docile O[ Defiant Bodies? 189

disturbance.

The incident began when en masse the men refused to eat the hominy ration provided for their

breakfast. They then refused to fall in for work because they had not been provided with a

substitute meal. In the resulting standoff, armed guards were called upon to maintain order

and attempt to isolate the ringleaders. Pennefather attempted to reason with the men at

length, but their continued refusal to give up their leaders and fall in for work forced him to

lock them all in their cells. 135 The prisoners had considered the hominy to have been bad for a

couple ofdays prior to the morning of the incident and when, on the day in question, the

inmates in "e" yard learned that bread was given to the prisoners in the other yards as

substitute for the inedible hominy they reacted against being ordered to eat their ration. It

would appear that Pennefather's inconsistent response to the problem of the bad hominy was

at the heart ofthe revolt. Uniformity in punishment was obviously a principle that could, on

some occasions, appeal to inmates as much as prison administrators. In the words ofone

prisoner, punished for his part in the affair:

The disturbance in question was not caused by any insubordinate feelings on thepart of the prisoners; but, resulted in the Superintendent refusing to listen to areasonable complaint in the first instance; in treating the prisoners in "C" yarddifferently to those in "A" and "B" yards by giving the latter yards bread in lieu ofthe bad hominy; and, lastly in refusing to listen to any explanation on the part ofthe prisoners in "C" yard, and in threatening them with firearms when a redress ofwhat was no frivolous complaint by giving them a few loaves ofbread wouldhave sufficed.136

From something as simple as a dispute over the quality of food, a serious disturbance137eventuated.

All prisoners involved in the affair were punished, but to varying degrees. The majority of

offenders received sentences ofeither fourteen or seven days close confinement as

punishment. The harshest sentences were reserved for the six prisoners believed to be the

135 Brisbane Courier, 18 October 1889.

136 Statement of Prisoner John White, 2 December 1889, QSA COLlA599 [10602].

137 For another case ofa dispute over the quality see Principal Gaoler's Journal, QSA PRI 1/24, 3 November1886, p. 264. In this case the prisoners In Brisbane Gaol threw their dishes over the wall in protest at thequality of their hominy. When the gaoler asked all those who were dissatisfied to step forward, forty-two didso. He then tasted the hominy in front of them, declared it to be satisfactory, and then told them they wouldhave it for breakfast when they may appreciate it more.

Chapter 3: Docile or DefJant Bodies? 190

ringleaders of the mutiny - those detected whispering among the "howling, yelling and

excited" assembly. They each received thirty-one days solitary confinement in the dark cells

on a ration ofjust bread and water, and lost half the remission due to them. These men were

considered by the authorities to be members of a St Helena gang known as "the PUSh".138

From the surviving records the historian may only obtain a glimpse ofthe activities of the St

Helena Push. It is clear that it existed in the 1880s and 1890s at least, and was comprised ofa

core group of inmates who bonded together to act in their collective interests. They were

considered by the authorities as "the worst class ofprisoners", frequently standing over other

inmates and stealing their food and other items. 139 Their influential position in the prison was

dependent upon their capacity to frustrate the authorities as well as to intimidate their fellow

inmates. The Wolston Park Case Books contain reference to one patient who had suffered at

the hands of the Push when an inmate ofSt Helena. His fragile mental state appears to have

been in part attributed to the persecution he experienced in prison. 140 Their ability to

influence life within St Helena was clearly in evidence in the case ofthe mutiny.

The consequences of the mutiny were to be felt by the prisoners long after the issue had been

laid to rest by the visiting magistrates. During the debate over the amendments to the "Prisons

Bill" in late 1890, the Legislative Assembly endorsed the use ofcorporal punishment (under

protest from some members) as the appropriate penalty for insurrection, and there was a

general feeling that harsh methods were necessary to prevent a recurrence of such

behaviour. 14! The Upper House went further when some members expressed their fears

concerning the powers ofa superintendent to quell any future cases of insurrection. 142 In

response, it was established that the superintendent was permitted to use force of arms to

defend the authorities from rebelling prisoners and could detain prisoners in solitary

confinement until a tribunal ofjustices could be formed to hear their cases and to impose

138 It would appear that the name had been borrowed from a commonly used word to describe a gang. In thenineteenth and early twentieth centuries a gang ofjuvenile delinquents, or "larrikins", was known as a "push".In Brisbane Gaol the gang ofold offenders responsible for standing over other prisoners was known as the"pushgang" (see BI, p. 721).

139 Deputy superintendent, St Helena, to C-G, 12 June 1894, QSA COLlA773 [6849].

140 Wolston Park Case Book, QSA A/45617, p. 20.

141 QPD, vol. 62, 17 October 1890, p. 1004.

142 QPD, vol. 60, 11-12 November 1890, pp. 191 and 202-3.

Chapter 3: Docile or Defiant Bodies? 191

suitable punishments. In their struggle for an improvement in the quality ofprison fare, the

1889 protest unintentionally led to a guarantee that further outbreaks ofmutinous conduct

would be met with severe retribution.

Ironically, the protest had no immediate impact upon the existing dietary arrangements - at

least in terms of the quantities provided for each inmate. It was not until the new rules and

regulations for the management ofprisons were finally approved in 1892 that there was any

change at all. 143 Only those hard labour prisoners serving sentences longer than twelve

months received any improvement in their diets. They were now eligible for an extra four

ounces ofbread and vegetables, and an ounce of sugar. Hard labour prisoners serving

sentences ofless than one year actually had their meat allowance reduced to twelve ounces

and were now not entitled to a sugar allowance. The Brisbane Courier applauded the new

arrangements:

The new dietary scale is an improvement on the old, both in respect of itsliberality and of its variations. It were alike unwise and unjust to wholly excludethe notion of punishment from the dietary; nothing but evil could result from aconviction on the part of the public that criminals were better fed than the greatbulk ofhonest men, or better fed in gaol than out of it. At the same time it isrecognised that both quantity and quality must be sufficient to maintain health, ifit were only to avoid the special cost of sickness. 144

Public opinion, insofar as editorial comment can be considered representative, remained in

favour of the principle ofless-eligibility.

Both mutinies highlight the role of the often unacknowledged agents ofpenal change - the

inmates themselves. Prisoners should not be regarded as merely "docile bodies" in a

Foucauldian sense, for they did have the capacity to exercise some agency when it came to

altering the conditions of imprisonment in the colony. Their opportunities to negotiate change

may have been severely limited, and the consequences of their actions may often have been

unintended, but they were able to draw upon their limited resources to exert some influence

on the trajectories ofpenal change - a fact obscured by Foucault's emphasis on the automatic

and pervasive operation ofpower in the prison environment. The events leading to the 1887

board of inquiry in Queensland, and the enduring discontent in the wake of the investigation,

143See QGG, vol. 56, no. 33, 3 hme 1892, pp. 296-7.

144 Brisbane Courier, 24 June 1892.

Chapter 3: Docile or Defiant Bodies? 192

support this observation.

Prison punishments

Such dramatic incidents oforganised resistance were rare, for the odds were heavily weighted

against the inmate in the struggle for control in the prison environment. Any resistance was

sure to be met with a swift punitive response from the authorities who were ever cautious to

maintain the upper hand. The threat ofpunishment for prison offences, ranging from minor

infringements of the rules and regulations to acts of violence against staff and escape attempts,

was calculated to maintain a yielding and ordered inmate population. The gaol officials were

able to deploy many of these punishments away from the watchful eye of the visiting justice,

and they frequently did SO.145 For Foucault, "the prison, that darkest region in the apparatus of

justice, is the place where the power to punish, which no longer dares to manifest itself

openly, silently organizes a field ofobjectivity in which punishment will be able to function

openly as treatment and the sentence be inscribed among the discourses of knowledge". 146 He

argued that the prison is the site where a "penitentiary judgement" is deployed, in which an

independent, disciplinary power supplementary to the judicial level is exercised. 147 This

appears to be a valid assessment of the Queensland situation. The 1887 board of inquiry drew

attention to the fact that the power to punish was in large part vested in the authority ofeach

gaoler, and that accurate statistics were rarely kept on the use ofpunishments for breaches of

the gaol regulations. 148 Gaolers were able to send refractory prisoners to the dark cells for

three days on a bread and water diet (or for seven days on halfrations) without recourse to the

visiting justice. Their power to punish was, in large part, unfettered.

In dealing with offenders, an elaborate economy of punishments was available to the

authorities. The various types ofpunishment were used either individually or in combination

to respond to inmate offences. For dangerous, mentally ill or particularly serious offenders

there were punishments ofphysical restraint, including the use of leg irons, gags and straight

jackets. Usually employed in the early years of a sentence, the use ofleg irons was intended

145 For example, see St Helena Penal Establishment, Deposition Book, 15 February 1867-9 March 1886,QSA PRl2/1. This book demonstrates that punishments were meted out every few days at St Helena.

146 Foucault, Discipline and Punish, p. 256.

147 Above the "judiciallevel", which passes sentences, there is the "legislative level", where criminal acts andpenalties are defmed. Foucault, Discipline and Punish, pp. 247-8.

148 BI, pp. 696-7.

Chapter 3: Docile or Defiant Bodies? 193

to augment the deterrent effect ofa particularly severe punishment. On rare occasions they

were also used to restrain inmates convicted ofprison offences. In 1887 it was revealed that a

gaoler could order that a refractory prisoner be placed in irons for up to forty-eight hours

without recourse to higher authority. 149 More common was the use of the gag and straight

jacket. The latter was considered to be a humane method for restraining violent inmates or

those at risk of attempting suicide. Gagging, however, was considered by many to be an

excessively brutal form ofpunishment or restraint, frequently attracting the unwanted

attention of the press or politicians. Used to silence prisoners repeatedly "shouting,

blaspheming and making use ofobscene language", a gag consisted ofa hollow wooden bit or

dummy attached to a leather belt which was fastened to an inmate's head. 150 According to

some warders who were questioned in 1889, it was usually used for five minutes and certainly

no longer than twenty. 151 The 1887 commissioners recommended that the use of the gag be

abolished in Queensland. 152

For serious breaches ofprison discipline there were punishments afphysical pain in the form

of the lash or shot drill. Referred to in the 1868 regulations, shot drill was a form ofpenal

labour generally used as a substitute for productive labour, although it could also be used as a

punishment for troublesome inmates. It was sparingly employed in Queensland's penal

institutions, but was still being used in Rockhampton Gaol as late as 1891. 153 Regarded by

the authorities as indispensable in maintaining discipline, the lash was utilised more

consistently. In 1894, for example, the visiting justice to 8t Helena commented: "I have no

hesitation in saying that unless assaults on warders are not severely punished - and the lash is

the only one the prisoners dread - it will be difficult to keep discipline amongst the prisoners

at 8t Helena" .154 Generally used to punish inmates found guilty of assaulting warders or

attempting to escape, corporal punishment was also used in cases of insubordination. At

149 El, p. 696.

150 Gagged prisoners were also placed in either mittens (stout leather gloves with a belt attached and fastenedaround the waist) or straight jacketed. For further details, see Ramsland, With Just But Relentless Discipline,pp.98-9.

151 Superintendent, St Helena, to Col Sec, September 1889, QSA COLlA591 [8340]. See also QPD, vol. 63,16 September 1889, p. 1614; and Brisbane Courier, 18 and 19 September 1889.

152 El, p. 696.

153 See inquest into death ofPrisoner Edward Assalett, 30 June 1891, QSA JUSIN191 [267/91].

154 Superintendent to C-G, 5 November 1897, QSA HOMlA15 [16067].

Chapter 3: Docile or DdJant Bodies? 194

Brisbane Gaol in 1864, for example, the lash was used in an attempt to check the increasingly

common incidences of insubordination. On this occasion, four prisoners each received twelve

lashes, and a triangle was erected for future use. ISS Corporal punishment remained the most

extreme form ofpunishment for prison offences until the mid-1890s, when it gradually gave

1· fi d d' . h 156way to so ltary con mement an letary pums ments.

Considered less severe than punishments ofphysical pain were punishments ofphysical

deprivation - dietary punishments and extension ofsentences - and punishments ofboth

physical deprivation and mental stress - solitary confinement. These were the most

commonly employed punishments in the penal system, excluding minor punishments of

privilege deprivation such as loss ofexercise or recreation time, or loss of indulgences.

Inflicted for offences such as insolence, disorderly conduct, possession ofcontraband, or

malingering, dietary punishments usually came in the form ofhalf rations for a specified

period or a temporary change to a different ration scale. Along with the extension of

sentences, these were particularly irksome punishments for inmates already subsisting on a

meagre and plain diet, and eagerly looking forward to the expiry of their sentence. Theywere

often used in combination with solitary confinement for the more grievous offences, which

usually involved some form of violence or destruction ofproperty.

Solitary confinement could be carried into effect in either light or dark cells. It was the latter

form of the punishment which evoked the most fear and drew the most criticism. The 1887

commissioners were extremely critical of the use ofdark cell punishment. They reported that

two St Helena inmates had each been sentenced to twenty-eight days in the dark cells. After

twenty-one days the skin on their hands and face had taken on a bluish-white hue, and they157appeared "bloodless, dazed, and weak". They subsequently recommended that the power

of the gaoler to inflict the punishment be limited to one day, and the visiting justice to

fourteen days.IS8 As ifthe darkness, silence and dietary restrictions ofdark cell punishments

155 Visiting Justice, Brisbane Gaol, to Col Sec, 26 September 1864, QSA COLlA60 [2798]. See also the caseofa St Helena inmate receiving 36 lashes for using obscene language towards the warders (visiting justice, StHelena, to Under Col Sec, 15 September 1881, QSA COL/A321 [4050]).

156 The annual reports record few instances in which the lash was used after this period. The Comptroller­General reported in 1913 that the punishment had not been necessary for many years (ARC-G, 1912, QPP,vol. 2, 1913, p. 200).

157 BI, p. 696.

158 The 1890 Prisons Act adopted the latter recommendation, but there was no change to the gaoler's powers

Chapter 3: Docile or Defiant Bodies? 195

were not harsh enough, the condition of the cells was also likely to have an impact on the

severity of the punishment. In 1898, the solitary cells in Brisbane Prison were found to be

damp from soakage underneath, posing an extra health risk to inmates confined there. 159

Occasionally discussed in Parliament, the use ofdark cells was frequently condemned as

"cruel and brutal treatment" .160 When the "Vagabond", John Stanley James, the intrepid

investigative journalist whose jottings frequently appeared in the colonial press, decided to

test the effect of solitary confinement in Brisbane Gaol's dark cells he concluded that it was

indeed harsh, but not unduly SO.161 But his experiment can hardly be considered valid - his

confinement was a mere six hours and he had been given a box ofmatches by the Gaoler

before entering the 9-foot-by-5-foot cell. Yet even this brief and contrived version ofdark

cell punishment managed to induce feelings ofdiscomfort: "In that darkness, which could be

almost felt, there was a sense ofchaos, ofvoid, of infinity.... I began to feel a sense of

oppression on the eyeballs, which lasted for a time" .162 It would seem likely that this extreme

form ofsensory deprivation would have had a greater effect on inmates who had already been

subject to extended periods of isolation and regimentation, especially so for those suffering

from some form ofmental stress or illness.

But even this most powerful ofprison rituals, efficiently calculated as it was to subdue the

inmate population, was occasionally undermined by prisoners determined to resist the rulings

of the authorities. In 1886, a prisoner sentenced to fifty lashes in Brisbane Gaol danced a jig

after receiving his punishment, determined to show that he was unaffected by the ordeal. 163

Riotous behaviour by inmates subjected to solitary confinement was also a common

occurrence. But these forms ofresistance were usually shortlived. Punishments could be

increased in severity, and even the hardest of inmates could not withstand repeated floggings

(see s. 28).

159 Superintendent, Brisbane Prison, to Comptroller-General, 24 March 1898, QSA PRIlA67 [1110].

160 QPD, vol. 86,17 December 1900, p. 2690. See also QPD, vol. 83,17 November 1899, pp. 1082 and1084.

161 Jo1m Stanley James ("the Vagabond"), "Six Hours in a Dark Cell", The Vagabond Papers (abridged ed.),Melbourne University Press, Melbourne, 1969 (originally published in 1877-8), ch. 8.

162 James, "Six Hours in a Dark Cell", p. 78.

163 Principal Gaoler's Journal, QSA PRI 1/24, p. 237.

Chapter 3: Docile or Defiant Bodies? 196

or extended periods in dark cells on a restricted diet. 164

Conclusion

The experience of imprisonment in Queensland's colonial penal system was rarely a

consistent and strictly ordered affair. The goals of uniformity and discipline specified in the

rules and regulations were continually frustrated by limitations placed upon each penal

institution. A combination of factors, such as perennial overcrowding, inadequate

classification, and variation between institutions in terms ofsuperintendence, work practices

and dietary provisions, mitigated against the establishment ofa uniform system of

punishment, carefully graded according to offence. An administrative obsession with

frugality ensured that the majority of these deficiencies would only ever be temporarily

remedied, ifat all. The overall result of this lack ofuniformity was a penal regime somewhat

different to the description characterised by Foucault.

The Queensland evidence also suggests that Foucault's narrative of imprisonment suffers from

an inattention to the interactive aspects ofprison life. His account does not adequately

consider the influence prisoner resistance and coping strategies can have upon penal

trajectories, nor does he pay due regard to the role such forces play in the daily life ofa penal

institution. Resistance to the penal regime, whether it be collective protest, as in the case of

the two St Helena disturbances, or the subversive activities of individuals, may win only small

gains for the incarcerated. But it is the process ofcontest itself that must be considered as a

fundamental component of life within prison. The struggle ofan inmate against the

institutional regime is a central feature ofthe intemallogic oftotal institutions. The inmate

should be seen as

...a stance-taking entity, a something that takes up a position somewhere betweenidentification with an organization and opposition to it, and is ready at theslightest pressure to regain its balance by shifting its involvement in eitherdirection. It is thus against something that the self can emerge.165

The evidence from colonial Queensland confirms the important role of inmate consent and

164 For a detailed analysis of the use of flogging in the convict period, see Raymond Evans and Bill Thorpe,"Commanding Men: Masculinities and the Convict System", Journal ofAustralian Studies, no. 56, specialissue: Australian Masculinities, 1998, esp. pp. 22-32.

165 Goffrnan, Asylums, p. 280.

Chapter 3:.DociJe O[ Defiant Bodies? 197

dissent in reproducing the relations characteristic of a functioning penal system.

Chapter 4: I'he Larrikil1 and the Dcmi-mondainc 198

Chapter 4

The Larrikin and the Demi-mondaine: The Problems of Generation and

Gender

Offending women and youths receive particular attention in this chapter because

internationally they became prominent features of the penal realm in the mid- to late­

nineteenth century, and because locally they posed continuing problems for Queensland's

penal system. These persistent problems stimulated an institutional response that was based

on contemporary trends in international penological theory and practice. Colonial

Queensland became the site ofa differentiation in penal strategies in which discrete

institutions were created exclusively for the punishment and rehabilitation ofjuvenile and

adult female offenders. Influenced by the work of reformers in western European and north

American jurisdictions, the Queensland authorities believed that the cure for juvenile

delinquency was based on removal from the disorder of the urban environment to institutions

where programmes ofdiscipline, education and moral reform could be implemented. The

authorities were also aware of the need to segregate women prisoners from men if they were

to establish an effective institutional regime that appropriately combined the elements of

punishment, humiliation, rehabilitation, education and labour. Through an analysis ofthe

distinctive histories ofcolonial Queensland's institutions for juvenile and female offenders, it

is possible to assess to what degree the development ofage- and gender-specific penal

strategies were determined by the circumstances ofcolonialism.

The early nineteenth century was the period in which the problem of young offenders rose to

prominence in western European discourses on crime and punishment.I The emergence of

the concept ofjuvenile delinquency was in part due to the agency ofreformers like Mary

Carpenter whose "child-saving" activities reached their peak with the establishment ofhomes

for destitute and criminal children in the early 1850s? Yet it probably owed more to prior

changes in the jurisdiction and administration ofcriminal justice which saw young offenders

l For a general history of the concept ofjuvenile delinquency, see Geoffrey Pearson, Hooligan: A History ofRespectable Fears, Macmillan, London, 1983.

2 Jo Manton, Mary Carpenter and the Children ofthe Streets, Heinemann, London, 1976; and Margaret May,"Innocence and Experience: The Evolution of the Concept of Juvenile Delinquency in the Mid-nineteenthCentury", Victorian Studies, vol. 17, 1973, pp. 7-29.

Chapter 4: I'he Larrikin and the Demi-mondaine 199

exposed to greater risk of detection and prosecution.3 The refonners were in all probability

responsible for posing an institutional solution to a problem that had been created in the late

eighteenth and early nineteenth centuries. Fonnal recognition ofthe work ofCarpenter and

others came in 1854 with the passage of the Youthful Offenders Act, which allowed for

convicted youths under sixteen years of age to be committed to refonnatory schools for two to

five years, after serving a minimum prison sentence of fourteen days. Three years later new

legislation provided for the commitment ofchild vagrants to industrial schools. The

establishment of the new refonnatory institutions was an acknowledgment of the need to

remove young offenders from the corrupting environment of the prison, but their continued

association with crime and punishment, especially in their highly disciplined and harsh

regimes and the provision for prior imprisonment, ensured that they would remain central

features ofVictorian penality.4

In Queensland, and the remaining Australian colonies, juvenile delinquents were more

commonly referred to as "larrikins", and the reformatory system was developed at a time

when popular fears about the activities of this particular class of offender featured in the

colonial discourse on crime.s The larrikin was a much-maligned figure in colonial society,

described in 1884 as follows: "As a rule the larrikin is utterly useless, worthless, and

contemptible - a being whose life is spent in the pursuit of vicious and degrading pleasures,

who lives very often on the ill-gotten gains of those unfortunate creatures who haunt our

streets at night, and who, ifhe ever marries may beget children who will inherit all his vices

increased in intensity".6 In some cases, this reputation was matched by an equally

3 Susan Magarey, "The Invention of Juvenile Delinquency in Early Nineteenth-Century England", LabourHistory, no. 34, 1978, pp. 11-27; Peter King and Joan Noel, "The Origins of 'The Problem of JuvenileDelinquency': The Growth of Juvenile Prosecutions in London in the Late Eighteenth and Early NineteenthCenturies", Criminal Justice History, vol. 14, 1993, pp. 17-41; and Peter Rush, "The Government ofaGeneration: The Subject of Juvenile Delinquency", Liverpool Law Review, vol. 14, no. I, 1992, PP. 3-43.

4 Weiner, Reconstructing the Criminal, pp. 131-41; and John A. Stack, "Reformatory and Industrial Schoolsand the Decline ofChild Imprisonment in Mid-Victorian England and Wales", History ofEducation, vol. 23,no. 1, 1994, pp. 59-73.

5 For details of larrikinism, see, for example, James Murray, Larrikins: 19th Century Outrage, LandsdownePress, Melbourne, 1973; Noel McLachlan, Larrikinism: An Interpretation, MA thesis, Department ofHistory,University ofMelbourne, 1950; Graeme Davison, "The City-bred Child and Urban Refonu in Melbourne,1900-1940", in Peter Williams (ed), Social Process and the City, George Allen and Unwin, Sydney, 1983,pp. 143-74; Lawson, Brisbane in the 1890s, pp. 237-8; John Rickard, "Lovable Larrikins and Awful Ockers",Journal ofAustralian Studies, no. 56, special issue: Australian Masculinities, 1998, pp. 78-85; and DavidWalker, "Youth on Trial: the Mt Rennie Case", Labour History, no. 80, 1986, pp. 28-41.

6 Brisbane Courier, 30 August 1884.

Chapter 4: 'fheLarrikin and the Demi-mondaine 200

ignominious record ofoffending. Yet it must be remembered that the concept oflarrikinism

gradually came to encompass such a variety offorms of youthful misbehaviour that it can

scarcely be interpreted as a synonym for juvenile crime.? The definition stretched well

beyond criminal behaviour to include any activities not consistent with the image of the well

behaved, morally sound, industrious adolescent. But never far from the minds ofconcerned

citizens, prying journalists and assiduous policemen was the potential for wayward youth to

graduate from mild deviant behaviour to a life ofcrime. In late-nineteenth century

Queensland, the criminal justice system and welfare organisations became more concerned

with combating the causes ofjuvenile delinquency. This was reflected in the more thorough

policing oflarrikin behaviour, and in the provision of reformatory institutions specifically

aimed at reclaiming wayward youth.

Women prisoners first became noticed early in the nineteenth century, primarily through the

determined missionary work of the Quaker prison reformer Elizabeth Fry and the Ladies'

Prison Associations. By drawing attention to the specific needs ofwomen in prison, Fry and

her associates succeeded in establishing the idea that women should be segregated from male

inmates.s Following the cessation of transportation tn the 1850s, Brixton Prison was

remodelled to accommodate an exclusively female inmate population, becoming the first

British prison to do so. From this time, the authorities strove to establish an appropriate penal

regime for women, one that became much more focussed on the individual treatment of

inmates than the variety of regimes utilised for men.9 For the remainder ofthe century,

however, the majority of female offenders were confined in local prisons, while only the more

serious offenders were sent to one ofthe convict prisons for women. Beset by the difficulties

ofdeveloping an appropriate institutional regime for women, these latter institutions

underwent a number ofchanges in this period. The idea ofseparate institutions for women

was most comprehensively applied in America where, in the late-nineteenth century, there

developed a network of reformatory prisons based on the premise that female institutions

7 Nwnerous examples of situations where simple youthful exuberance came under the gaze of the police maybe found in the larrikinism files, QSA POL/J4-8, 1902-22.

8 For discussions of the work ofFry, see Annemieke van Drenth and Francisca de Haan, The Rise ofCaringPower: Elizabeth Fry and Josephine Butler in Britain and the Netherlands, Amsterdam University Press,Amsterdam, 1999, esp. ch. 3; Dobash, Dobash and Gutteridge, The Imprisonment ofWomen, esp. pp. 41-56;and Ignatieff, A Just Measure ofPain, ch. 6.

9 Dobash, Dobash and Gutteridge, The Imprisonment ofWomen, pp. 62-72; and Zedner, Women, Crime andCustody, pp. 101-24.

Chapter 4: The Larrikin and the Demi-mondaine 201

required a distinctive architecture and regime of treatment, 10 In the Australian colonies the

problem ofwomen's imprisonment was typically regarded as less pressing than other issues

facing the penal authorities, and women's prisons were usually established as discrete

divisions in vacant wings of existing institutions for men. Yet in the space of two decades

from the late-1880s, the administrations of the eastern colonies fell into step with overseas

trends and sanctioned a period ofprison building in which each acquired a newly-built, . IIwomen s pnson.

This chapter begins with a discussion of the early moves to establish refonnatory and

industrial schools for criminal and neglected children in Queensland. The conditions of these

institutions are then examined, along with the rationale for their continued development in the

late-nineteenth and early-twentieth centuries. The remainder of the chapter examines the

establishment of institutional regimes for the punishment ofwomen. From the early 1870s,

when Toowoomba Gaol became the primary place ofconfinement for women sentenced in

the southern regions of the colony and Townsville Gaol (and later Stewart's Creek) serviced

the north, the penal system failed to establish and maintain appropriate institutional treatment

for convicted women. The construction ofa new establishment in Brisbane immediately after

the tum ofthe century represented only a brieftransfonnation in the standards ofconfinement

for women offenders.

Institutions for Juvenile Offenders

At the time ofseparation from New South Wales, neither appropriate legislation nor a purpose

built institution existed in Queensland to deal with the problems ofneglected and criminal

youths. With a total population of less than 30000, the fledgling colony had not yet generated

a sufficient number of suitable candidates to warrant state intervention. There was some

concern in 1864 about a number ofEnglish refuge boys, uncharitably described as "the very

scum ofLondon, ." worse even than refonnatory boys", who had been banished to the colony

to obtain land grants in the hope that they would develop into respectable and industrious

10 See especially, Nicole Hahn Rafter, "Chastizing the Unchaste: Social Control Functions of a Women'sReformatory, 1894-1931 ", in Stanley Cohen and Andrew Scull, Social Control and the State: Historical andComparative Essays, Basil Blackwell, Oxford, 1985, pp. 288-311; and her book, Partial Justice, chs 2-3.

II Finnane, Punishment in Australian Society, pp. 84-92.

Chapter 4: The Lmrikill and the Dcmi-mondainc 202

settlers. 12 But it was not long before this perceived external threat was surpassed by more

pressing concerns at home. In expressing the anxiety felt by an increasing number of

influential citizens, the editor of the Toowoomba Chronicle marshalled the hereditarian

arguments of Goethe and Coombe in calling for the implementation of an institutional remedy

to what he perceived as the endless production ofjuvenile criminals in the urban centres of the

colony. He concluded that

A vote ofmoney from the Queensland parliament could not be better applied thanfor the establishment ofajuvenile reformatory. It might be under goodgeneralship, made nearly, ifnot quite, self-supporting, and it might afford suchclassification as to give good hopes for the reformation of character andreclaiming a large number of the victims of crime for various industrial pursuits. 13

Nevertheless, it was the growing number ofdestitute and neglected children in Brisbane,

rather than the existence ofa youthful criminal class, that provided the necessary stimulus for

the successful passage of the Industrial and Reformatory Schools Act of1865. 14

It was another six years before the authorities finally established the colony's first reformatory

and industrial school on board the ailing hulk Proserpine. IS Tlie choice ofa maritime vessel

gave the impression that the institution was intended to function as a nautical training facility

similar to the Vernon in New South Wales. 16 In reality, however, the decision reflected the

well-established parsimonious attitude ofthe colonial government towards its welfare and

penal institutions in that utilising the decaying hulk simply constituted a less expensive option

12 QPD, vol. 1,25 August, 1864, p. 307. A select connnittee was ordered to report on the matter. Theensuing revelations inspired images ofa time when MoretON Bay acted as a destination for recalcitrantconvicts and aroused anxiety that a respectable class of immigrant would be discouraged from settlingalongside such threatening company.

13 Toowoomba Chronicle, 10 November 1864.

14 QPD, vol. 2, 6 July 1865, p. 360. The logic ofthis decision seems strange, however, when one considersthat the majority ofboys admitted to the institution in its first few years had been convicted of criminaloffences.

15 For the proclamation rescinding the hulk's status as a prison, see QGG, vol. 12, no. 29, 25 March 1871, p.483. For criticism of the government's tardiness in establishing a reformatory, see The Bulletin,Rockhampton, 21 May 1868; and Brisbane Courier, 20 November 1870. Early in 1868, however, there wassome resolve to address the problem (see police magistrate, Brisbane, to Under Col Sec, 24 January 1868,QSA COL/AI00 [0237]).

16 The Queensland government had received information on the operation of the Vernon early in 1871 (ColSec, NSW, to Col Sec, 21 April 1871, QSA COL/A155 [1109]). The industrial school on the Vernon wasestablished in 1867, one year after the NSW Industrial Schools Act was passed (see Ramsland, Children ofthe Backlanes, p. 116).

Chapter 4: I'he Larrikin and the Dcmi-mondainc 203

than erecting a new establishment on valuable crown land. I? The resolution to confine

neglected and criminal boys together further underlines this approach. During the 1865

debate there had been warnings issued against the "great danger" ofkeeping both classes of

children in association. 18 However, with only a small number of admissions to the hulk each

year, there was little motivation for the government to establish separate institutions. 19 It was

a precedent that was to inform government policy for the remainder ofthe century and, in the

case ofboys, well into the next. Queensland was not alone in adopting this course, as most of

the other colonies paid little regard to the distinction between criminal and neglected when

identifying institutions for their confinement.2o

The Queensland policy reflected just one of a number of alternative approaches to the

problem ofproviding institutional care for criminal youths in the Australian colonies. Despite

demonstrating faithful attention to the needs of its neglected and destitute children, the New

South Wales authorities resisted establishing a reformatory facility to match the industrial

school on the Vernon. Consequently, the destination for the majority ofmale juvenile

offenders (until the opening of the Carpentarian Reformatory in 1895) remained one of the

colony's gaols.21 South Australia, with its total population similar to Queensland for the latter

half of the nineteenth century, also chose to confine both classes in the same institution,

although specialist institutions quickly emerged.22 In Victoria, on the other hand, the

government had been keen to follow British precedent and encourage the involvement of

17 The Proserpine was in such poor condition that its moorings were in shallow water to prevent any loss oflife if it was to go down suddenly. It also housed the local water police headquarters and was occasionallyused as a quarantine station (see Johnston, Long Blue Line, p. 46 and Health Officer to Col Sec, 17 January1877, QSA COL/A233 [0265]). It would be misleading to accept Robert van Krieken's classification of theProserpine as a nautical training ship (see Children and the State, p. 69).

18 IQPD, vo .2,6 July 1865, p. 361.

19 The problem was to emerge in 1874 after some neglected boys under the age of eight were admitted to thehulk. The Brisbane Courier (13 and 20 November 1874) expressed its disdain for a system which sanctionedthe association of neglected children of tender years with criminals. It argued that children of such tenderyears required a standard ofparenting that could not be provided in a reformatory institution.

20 Seymour, Young Offenders, pp. 45-8.

21 Ramsland, With Just But Relentless Discipline, p. 40. An industrial and reformatory institution for girlswas established at Newcastle in 1867 (the reformatory added in 1869). The institution was transferred toCockatoo Island in 1871, and in 1878 the convicted offenders were moved to Shaftesbury Reformatory(Seymour, Young Offenders, pp. 55-6).

22 Leonora Ritter, "A Comparison of the NSS 'Vernon' in New South Wales and the NSS 'Fitzjames' in SouthAustralia", Australian and New Zealand History ofEducation Society Journal, vol. 7, no. 2, 1978, pp. 35-7;and Seymour, Young Offenders, p. 54.

Chapter 4: The Larrikin and the Dcmi-mondaine 204

private organisations in the provision ofcustodial treatment for young delinquents. From the

1860s, a number of small, voluntarily-run reformatories and industrial schools were

established to assist the state institutions already dealing with neglected and criminal youths.23

By the l890s, the ideology of voluntarism had become so influential that all Victorian

reformatory institutions were privately managed, leaving only a single state-run receiving and

security institution at Royal Park. The Tasmanian authorities also courted private assistance,

but did maintain state-run Training Schools that functioned as reformatory institutions.24 The

alternative institutional arrangements adopted in the colonies highlight how the provision of

treatment for convicted juveniles was particularly susceptible to the particular attitudes and

financial constraints of each colonial administration.

A former Sub-Inspector of the Water Police, James Wassell, was appointed superintendent of

the reformatory in 1871, and was to remain in charge until 1899.25 From the surviving

records, it would appear that he remained in firm control of the institution during his period in

command. As well as maintaining good order on the hulk (and later, at the Lytton

establishment), he was diligent in finding licensed employment for suitable inmates and, from

1879, demonstrated his concern for effective case management by establishing an archive of

depositions taken in all cases where reformatory boys were convicted ofcriminal offences.26

A more searching assessment ofhis governance is difficult to make from the paucity of

surviving records. Moreover, the problem is compounded by the fact that it was he who

generated the majority of the daily correspondence. It should be noted, .however, that for the

three decades he was in control, the institution remained largely immune from both

government and public criticism?? Although, this absence ofcriticism could be attributed to

the closed nature of the reformatory and its geographical isolation from the bulk of the

Brisbane population. Indeed, such isolation meant that poverty stricken parents often found it

23 Maunders, "The Olinda Farm Reformatory", pp. 22-4.

24 Seymour, Young Offenders, p.53.

25 For details on Wassell, see Savige, "Rascals and Renegades", pp. 88-9.

26 J. Wassell to visiting justice, 9 December 1879, QSA COLlA287A [4440].

27 Apart from the criticism ofsentencing young neglected boys to the reformatory (mentioned above), and aminor incident in 1873, when a disgruntled former employee alleged that the boys were kept in idleness formost of the time and were prevented from making complaints to visiting authorities, the institution did notattract significant attention. For details of this latter episode, see Brisbane Courier, 13 March 1873; andvisiting justice to Col Sec, 27 March 1873, QSA COLlA181 [0598].

Chapter 4: TbeLarrikill and the Demi-mondaine 205

difficult to make regular visits to see their sons and assess their condition?8

During their confinement in the hulk the boys were subject to a disciplined and highly

routinised lifestyle that was not unlike the prison regime. In his annual report for 1874,

Superintendent Wassell identified the daily programme as follows:

AM5.156.00 to 8.008.00 to 8.308.30 to 9.009.00 to 9.159.15 to noon11.00 to noon

PMnoon to 12.3012.30 to 1.001.00 to 2.302.30 to 5.005.10 to 5.405.40 to 7.007.15 to 8.458.509.00

Rise, make up hammocks, say prayers, wash, etcWork, wash decks, Monday and Thursday wash clothesBreakfastRecreationMuster and drill1st class at school, other classes at work2nd or 3rd class at school

DinnerRecreationAll hands at work2nd or 3rd class at schoolSupperRecreationSchool, all classesStretch hammocks, say prayersTo bed29

After 1873, two thirds of the boys were regularly employed in the tailor's shop, while the

remainder were engaged in cooking, cleaning, painting, cutting firewood and various other

aspects of ship duty. Not simply devised to maintain good order within the institution, the

daily routine was also designed to inculcate in the inmates habits oforderliness, cleanliness

and industry. Work and a crude fonn of schooling were the main components of a scheme for

transforming troublesome boys into useful citizens.3D

There was no significant modification to the inmates' work practices for the remainder ofthe

century, even after the reformatory was transferred to nearby Lytton in February 1881.31 The

28 Police magistrate, Ipswich, to Under Col Sec, 14 February 1881, QSA COLlA307 [0664].

29 Report for the Reformatory for 1874 in J. Wassell to Visiting Justice, 19 May 1875, QSA COL/A216[3264]. In winter the inmates were allowed to rise at 6.00 AM and begin work at 6.30. On Saturdayafternoons, weather pennitting, they were taken on shore to bathe and participate in a game ofcricket.

30 Goldman has discussed the poor standard of education in Child Welfare in Nineteenth CenturyQueensland, p. 131.

31 It was originally intended that a site at Boundary Street in West End would be used for the new

Chapter 4: The Larrikin and the Demi-mondaine 206

move to a mainland site did add some variety to the nature ofwork undertaken by the boys,

but it did not result in an appreciable reduction in the drudgery of each task. As well as

making uniforms for the lunatic asylum and working to maintain the reformatory precinct, the

boys were also employed at tent-making, cleaning the guns and grounds of the adjacent

military establishment, and mining blue metal for road construction.32 Most of their time was

spent within the confines of the reformatory itself: a poorly constructed establishment, erected

at minimum expense.33 Built in an 'L' shape and surrounded by a high paling fence,

the main portion of the building consist[ed] of two large dormitories, eachcontaining about forty beds, a room which serves as a hospital in case of sickness,a warder's room, and the office of the superintendent. The wing contain[ed] theschoolroom, refectory, and kitchen, large verandas forming the workrooms.34

In contrast to the hammocks used on the hulk, the ward style ofaccommodation allowed the

authorities to maintain constant surveillance over the inmates. Even when asleep, the inmates'

bodies were the focus ofattention for this authoritarian gaze.

It was also the body that became the focus for punishments meted out to refractory inmates.

In satisfying the overtly punitive goals ofthe institution regular whippings, dietary

punishments, solitary confinement and work turning the grinding stone for a period of two

days or more were punishments that followed even minor breaches ofdiscipline.35 There

were subtle variations in the penalties considered appropriate for the range ofmisdemeanours

committed by the inmates. Two stripes ofa lash for lying, four stripes for lying and stealing,

six stripes ofa cane for disobedience oforders, twelve stripes ofa strap for thieving, and one

week ofmeals in the solitary cells for not being ready for church, constituted different layers

in an economy ofpunishment calculated to ensure compliance by establishing distinct grades

ofdeviance. The severity ofpunishment was usually mitigated by size and age, with the less

establishment. The value of the property, however, prompted the government to look for a location furtherfrom the centre of town (J. Wassell to Under Col Sec, 24 July 1878, QSA COLIA263 [3026]). On the moveto Lytton, see the te1egramfromJ. Wassell to Under Col Sec, 17 February 1881, QSA COLlA307 [0719];and QGG, vol. 28, no. 27, 19 February 1881, p. 383.

32 See Brisbane Courier, 20 May 1886; J. Wassell to Under Col Sec, 16 May 1882, QSA COLlA337 [2731];and J. Wassell to Under Col Sec, 9 July 1885, QSA COLlA430 [5014].

33 For some details of the inadequate structure, see Savige, '''Naughty Boys"', pp. 33-5.

34 Brisbane Courier, 20 May 1886.

35 J, Wassell to Water Police Magistrate, monthly reports for Reformatory School Hulk "Prose~ine" fromJanuary to May 1872, QSA COLlA174 [2214],

Chapter 4: T'be Larrikin and the Demi-mondail1e 207

robust offenders receiving diminished penalties.36

The most common serious offence for which the boys received punishment was absconding

from confinement.3? Usually the escapees were apprehended on the day of their escape;

although, on one occasion in 1881, a boy managed to remain at large for almost five months.38

In the previous year, two boys dramatically expressed their dissatisfaction with life in

confinement by attempting to set fire to the hulk - an act that earned them a harsh sentence of

twenty stripes each.39 The authorities were also keen to prevent what they regarded as

inappropriate sexual conduct. In 1879, two inmates were charged with having committed

sodomy. Following an investigation, it was discovered that the case was not as serious as had

initially been thought and only a relatively mild punishment was imposed on the older boy.40

In order to maximise the deterrent effect of the punishment, however, he was to suffer the

indignity ofhaving his twelve lashes inflicted publicly, in full view ofhis fellow inmates.

Punishments were administered in the presence of the superintendent and visiting justice, and

there were few opportunities for independent observation. On one occasion in 1879, however,

the captain ofa government vessel was present when a fourteen year old inmate was

undergoing a sentence of twenty stripes for absconding from the hulk.41 Much to the disgust

of the visiting justice, the spectator voiced his objections at the severity of the penalty - the

punishment being stopped after the first twelve stripes had almost broken the skin.42 Possibly

36 See, for example, visiting justice to Under Col Sec, 22 April 1881, QSA COLlA311 [1734]. There wasalso a pertinent gender division in that delinquent girls were not subject to corporal punishment in theToowoomba reformatory.

37 See, for example, J. Wassell to Under Col Sec, 24 August 1889, QSA COL/A589 [7570]; J. Wassell toWater Police Magistrate, 11 May 1872, QSA COL/A167 [0724]; visiting justice to Under Col Sec, 22December 1881, QSA COL/A328 [5596]; telegram from J. Wassell to Under Col Sec, 8 July 1889, QSACOLlA585 [6102]; and J. Wassell to Under Col Sec, 11 November 1892, QSA COLlA715 [13481].

38 Innnigration Agent to Under Col Sec, 15 November 1881, QSA COL/A325 [4939].

39 The younger boy's punishment was reduced to twelve strokes (visiting justice to Under Col Sec, 24 March1880, QSA COLlA291 [1663]).

40 Visiting Justice to Col Sec, 19 September 1879, QSA COL/A283 [3412]. For other cases, see J. Wassellto visiting justice, 21 November 1872, QSA COLlA176 [2359]; and visiting justice to Under Col Sec, 21August 1880, QSA COL/A298 [4628].

41 He made his escape by swllnming to a nearby island, where he then concealed himself in the thickmangroves and managed to elude his pursuers for most of the day.

42Telegram from J. Wassell to Under Col Sec, 26 May 1879, QSA COL/A277 [1903].

Chapter 4: The Lnrrikin and the Demi-lJlondaine 208

reflecting a broader cultural transformation in attitudes towards the infliction ofpain upon

juvenile offenders, the punishments gradually diminished in severity. In 1912, the most

common punishment was inflicted with a cane on the hand ofan offender, while the

maximum sentence was ten stripes on the buttocks for absconding.43

Under the 1865 Act, any child under the age of fifteen who had been convicted ofa criminal

offence could be detained in a reformatory school for a period not less than one year and no

more than seven years.44 From the mid-1870s to the depression years of the early 1890s,

admissions ofboys for neglect exceeded those for criminal offences. Following this period

the pattern was reversed (see figure 3.1). Larceny was far and away the most common

offence for which boys were committed to the reformatory. The situation for girls was

markedly different. Admissions ofneglected girls far exceeded commitments for those

convicted ofcriminal offences (see figure 3.2). Only after World War One was this pattern

altered.

Figure 4.1: Admissions to Reformatories (Boys), 1871-1920

300

250

200

~e 150

=Z100

50

Year

IiiJConvicted Boys IINeglected Boys

43 See the "Report of the general inspection of the Westbrook reformatory by J.G. Macdonald, visitingjustice, and George Ferguson, Director, State Children's Department", 2 August 1912, QSA A/4734Westbrook [9842].

44 29 Vic, no. 8, ss. 5 and 9.

Chapter 4: The Larrikin and the Demi-lUondaine 209

Figure 4.2: Admissions to Reformatories (Girls), 1881-1920

140

120

100

...80<II

,.Q

e:: 60z:

40

20

0

«:," «:," «:,«:''1 9'? 9'" ~" ~" >:;J'1 :-,.'? :-,.'",,«:' ,,«:' '\; "q; "q; ,,'1 "CJ "CJ ,,'1 ,,'1

Year

I liil Convicted Girls II Neglected Girls I

It was in the late 1870s that the authorities were first obliged to confront the problem of

devising an appropriate method for dealing with neglected girls too old for the orphanage and

still able to be saved from a life in prison.45 The situation became particularly urgent in

November 1879 when three generations of "fallen women" were confined in Toowoomba

Gao1.46 The eldest confinee was the owner of a well known Brisbane brothel who had been

employing her daughter since an early age to work as a prostitute in the establishment. The

youngest was an eleven year old child, forced to accompany her prostitute mother and

grandmother to gaol after the former had been accused ofrobbing a customer in the brothe1.47

The grandmother was eventually released and petitioned the government for custody ofher

grand-daughter. The Brisbane police magistrate, Philip Pinnock, was emphatic in his opinion

that the child should not be handed over to her kin to embark upon an inevitable career as a

prostitute. However, he was equally swift to lament the lack of institutional care in the colony

45 The police commissioner emphasised the need for a girls' refonnatory in his annual report for 1879("Report of the Commissioner ofPolice for the year 1879", QVP, vol. 1, 1880, p. 707).

46 Police Magistrate, Brisbane, to Col Sec, 31 November 1879, QSA COLlA285 [3868].

47 The girl was convicted ofvagrancy and sentenced to six months imprisonment (see Brisbane Courier, 6September 1879). The case is also mentioned in Goldman, Child Welfare in Nineteenth Century Queensland,p.142.

Chapter 4: The Larrikin and the Dcmi-mondainc 210

that could attend to such cases.48 A similar problem had occurred in 1877 when an epileptic

girl Elizabeth B had been sent from the Nudgee Orphanage to Woogaroo Lunatic Asylum and

then on to hospital. She was considered a danger to her mother but no appropriate institution

could be found to treat her. The doctors admitted that her case was "one deserving ofhelp but

owing to the 'red tape' ofofficial routine no one can help her & the responsibility rests

nowhere".49

Ultimately, an institutional remedy was found in the establishment ofan Industrial and

Reformatory School for Girls in Toowoomba early in 1881.50 A location in an urban setting

was consistent with contemporary wisdom on the appropriate environment for the instruction

and reformation of young women. As Teresa Ploszajska has observed, the Victorian

discourse of reformatory treatment for girls was dominated by a "middle-class belief in

suburban domesticity".51 It was expected that reformed girls would seek employment in

domestic service upon release and there was no reason to remove them from an urban centre

in the meantime.52 When parliament was discussing an appropriate site for a proposed new

institution in 1901, the idea of selecting a country location was dismissed as the Home

Secretary espoused the virtues ofconfining girls clos~ to the metropolis.53 But this logic did

have its limitations. When, in 1894, it was suggested that a group of girls could be transferred

to a location in Brisbane where they could be kept under some control without acquiring the

stigma ofbeing reformatory girls, the superintendent opposed the proposal. He thought that

the danger of them escaping, and becoming permanently lost to the evils ofthe city, was too

great. His preference was to keep them in the Toowoomba institution until appropriate

48 Police Magistrate, Brisbane, to Col Sec, 31 November 1879, QSA COLlA285 [3868].

49 T. Jones, All Saints, to Col Sec, 22 October 1877, QSA COLlA247 [5215]. There were many other casesofgirls sentenced to terms in an industrial school being improperly detained in the orphanage (see Under Sec,Department of Public Instruction, to Principal Under Sec, 3 December 1877, QSA COLlA248 [5497]).

50 QGG, vol. 28, no. 50, 9 April 1881, p. 975. The reformatory was officially opened on 9 April 1881 withits fIrst three inmates being transferred from the gaol (B. Cribb to Under Col Sec, 11 April 1881, QSACOLlA311 [1580)).

51 Teresa Ploszajska, "Moral landscapes and Manipulated Spaces: Gender, Class and Space in VictorianReformatory Schools", Journal o/Historical Geography, vol. 20, no. 4, 1994, p. 426.

52 For discussions of the focus on domestic work in the Australian context, see Willis, "Made to be Moral",pp. 181-2; Wimshurst, "Control and Resistance".

53 QPD, vol. 88, 22 October 1901, pp. 1403-4.

ChapteT 4: The Larrikin and the Demi-mondainc 211

situations could be found in the country.54

But while the authorities were following a well established tradition in choosing the location

of their juvenile reformatory institutions, they were severely lacking in innovation when it

came to the design of each structure. Just as the boys' institution was initially a recycled hulk

and later moved to an inexpensive, second-rate building at Lytton, the girls' reformatory was

established in the old Toowoomba court house, opposite the women's' gaol. The issue of

proximity to the gaol was then to become one of the most common criticisms levelled against

the reformatory throughout the next two decades, and ultimately became an important factor

in its demise after 1897.55

It would appear that many observers did not consider that the Toowoomba institution was

even a permanent industrial and reformatory school. The Brisbane Courier, for example, was

in favour of erecting an entirely new premises, well away from the gaol.56 In fact, the location

of the reformatory, not to mention the fact that its superintendent, Blaney, was also the local

gaoler, led many to believe that it was merely a separate division of the gaol? This image of

impermanence was reinforced by the lack of instruction given to the superintendent. When he

complained in 1888 that there were no rules to guide him in his management of the

reformatory, he was instructed by the Colonial Secretary to adapt the rules and regulations of

the appropriate New South Wales institutions for his own purposes. Consequently, the

regulations of the Shaftesbury Reformatory and the Industrial School for Girls at Parramatta

were acquired for use in Queensland.58

Conditions in the Toowoomba reformatory were harsh, perhaps even harsher than in the boys'

institution. The girls were confined in a dormitory setting where little privacy could be

54 Superintendent Blaney to Col Sec, 17 June 1894, QSA REF4/G2 Letterbook of the Supt, ToowoombaReformatory and Industrial School, 1893-95.

55 See, for example, Brisbane Courier, 22 February 1881; QPD, vol. 50, 6 October 1886, p. 1118; and QPD,vol. 77, 24 September 1897, p. 974.

56 Brisbane Courier, 20 and 24 May 1886.

57 Added to this was the fact that young women over the prescribed maximum age of admission wereoccasionally removed from the gaol to the reformatory (see, for example, visiting justice to Col Sec, 12 April1889, QSA COLlA576 [3363]).

58 Col Sec, NSW, to Col Sec, 18 Aprill888, QSA COLlA543 [3737].

Chapter 4: The Larrikin and the Demi-mondaine 212

maintained, and where the troublesome freely associated with the well-behaved.59 It was

suggested that an appropriate institution should have some facility for separating the sexually­

aware from those at risk ofcontamination, but no steps were taken to realise this goal. 60

However, loss ofpurity was perceived as the source of all vice in young women, and some

measures were taken to separate the fallen from other inmates. 61 Pregnancy was perceived as

the ultimate failing in reformatory girls, and would always result in hasty removal to another

institution.62 When, in 1891, it was discovered that a fourteen year old inmate was pregnant

to her mother's de facto husband, the superintendent recorded his agitation at the situation:

I submit that this girl should not be allowed to remain here, we are doing all wecan to reform and train these girls so that when there [sic] sentences expire theymay be able to lead good and useful lives but the very appearance of this girl inthere [sic] midst is enough to counteract the good work we are striven [sic] to

63perform.

Depending on their behaviour, girls in this condition were usually sent to the Magdalen

Asylum in Brisbane and into the care ofthe Sisters ofMercy.64

Apart from two hours of schooling, the girls occupied most ofeach day employed in the

institution's laundry.65 Only a small profit was generated in the early years, but eventually the

enterprise progressed to the point where the visiting justice hesitated in hiring out inmates if

he perceived any subsequent threat to production.66 Staffing was inadequate, and the inmates

59 For a discussion of the conditions at the Toowoomba Industrial and Reformatory School, see Goldman,Child Welfare in Nineteenth Century Queensland, pp. 140-6.

60 Brisbane Courier, 20 May 1886. Isolation of the sexually-active or sexually-aware did occur in otherreformatory institutions. See, for example, Michelle Ca1e, "Girls and the Perception ofSexual Danger in theVictorian Reformatory System", History, vol. 78, no. 253, 1993, pp. 206-7.

61 See, for example, Brisbane Courier, 20 May 1886.

62 Ca1e, "Girls and the Perception of Sexual Danger", pp. 212-3.

63 Supt to visiting justice, 11 Apri11891, QSA REF4/G2 Letterbook ofthe Superintendent, ToowoombaReformatory and Industrial School, 1881-1893.

64 In 1887 a seventeen year old girl was removed to the gaol when it was discovered she was pregnant (seesuperintendent Blaney to Sheriff, 24 August 1887, QSA REF4/G2; and Blaney to visiting justice, 24 August1887, QSA COL/A513 [6632]). For other cases, see police magistrate, Brisbane, to Home Sec, 31 May1897, QSA HOM/A9 [7079]; and Prison surgeon to Home Secretary, 19 January 1900, QSA HOM/A27[0971 ].

65 Blaney to Home Secretary, June 1901, QSA HOM/A35 [9887].

66 G. Murray, visiting justice, to Under Col Sec, 23 March 1887, QSA COL/A494 [2430].

Chapter 4: I'llC Larrikin and the Demi-l1londainc 213

were denied weekly attendance at church because of the inability to provide supervision.67

The most common punishments for breaches ofdiscipline were solitary confinement or some

form of dietary restriction, usually involving meals ofbread and water.68 Escapes were not

uncommon, leading Blaney to make repeated requests for permission to line the institution's

fence with barbed wire.69

The decision to move the boys' institution to the mainland did not herald the end ofattempts

to implement the 'progressive' methods favoured by Frederick Neitenstein in New South

Wales.7o Faith in the reformatory potential of a life at sea prompted the occasional licensing

ofboys to government vessels, although this never developed into a major programme.71

There were also calls in the early 1890s to utilise an abandoned hulk, Beatrice, for the purpose

of establishing a training ship for Brisbane's 'street arabs,.72 Couched in the familiar jargon of

colonial patriotism, it was proposed that these specimens of "rising manhood" could be

transformed into candidates for future naval service. The proposal came at a time when the

colony was rudely awakened to the possibility that the number of Brisbane's "street arabs" far

exceeded previous estimates.73 The grave concern that these burgeoning ranks would quickly

augment the criminal class eventually prompted the formation of the Brisbane Boys' Horne in

1890, specifically to cater for neglected boys.74 It was in this milieu that some looked towards

67 Rev R.E. Goldingham to Col Sec, 27 March 1890, QSA COLlA609 [2914].

68 See, for example, Blaney to visiting justice, 30 October 1889, and 7 October 1893, QSA REF4/G2,Letterbook of the Superintendent, Toowoomba Reformatory and Industrial School, 1881-1893; and visitingjustice to Col Sec, 3 December 1889, QSA COLlA599 [10566].

69 Supt to visiting justice, 27 December 1892; and superintendent to Col Sec, 25 October 1893, QSAREF4/G2, Letterbook of the Superintendent, Toowoomba Reformatory and Industrial School, 1881-1893.

70 Favorable reports on the operation of the Vernon were often contained in the press (see, for example,Brisbane Courier, 8 December 1884 and 19 February 1886).

71 Six boys were sent to work on the government schooner Mavis in 1884 and there were plans to use thevessel solely as a training ship for reformatory boys (Supt to Under Col Sec, 31 August 1885, QSACOLlA435 [6489]). For another example of maritime service, see J. Wassell to Under Col Sec, 13 January1890, QSA COLlA604 [0468].

72 Brisbane Courier, 15 December 1891. A similar proposal had been made in parliament in 1889 (QPD,vol. 63, 16 September 1889, p. 1615). On the state of the Beatrice, see Portrnaster to Under Col Sec, 10November 1891, QSA COLlA677 [12815]. As late as 1899 the government was still keen to receiveinformation on the workings of the Sobraon, commissioned as the replacement for the Vernon in 1891 (seeUnder Secretary, NSW, to Home Secretary, 23 June 1899, QSA HOM/A23 [8411]).

73 See, for example, Brisbane Courier, 11, 12, 18 & 22 April 1890.

74 Brisbane Courier, 15 May & 13 June 1890; and 1June 1891.

Chapter 4: I'lJe Ll1rrikin and the Dcmi-mondaine 214

the sea as an antidote for urban ills. The scheme attracted the attention ofcolonial secretary

Tozer, who saw it as an opportunity to remove the neglected children from the influence of

the criminal element in the reformatory. Premier Griffith, however, argued against the

practicality of the suggestion, possibly on account ofthe deteriorating economic situation.75

Another proposal was made in the following year that also received an encouraging response

from the government, but again no action appears to have been taken.76

Failure to implement a rigorous programme ofnautical training meant that the most important

reformatory technique for delinquent boys would remain agricultural labour. Tentative steps

were taken in this direction after the move to Lytton, but it was not until the Westbrook

reformatory was established in Toowoomba in 1899 that it began to realise its full potential.

The rationale for this new emphasis in correctional methodology was the reputation it had

earned at a number of reformatories in western Europe and America. On both continents, it

was generally accepted by reformers that the corrupting influence of the city had to be

countered with the uncomplicated orderliness of the country.77 It necessarily followed that

reformatories and industrial schools should be established in rural locations where the inmates

could be trained in the virtues of farm life while remaining sheltered from urban influences.

The most celebrated example of such an institution was the agricultural colony at Mettray in

France.78 For Foucault, the opening ofthis particular institution completed the transition to

the "carceral system", for it encapsulated "the disciplinary form at its most extreme, the model

in which are concentrated all the coercive technologies ofbehaviour".79 The Queensland

reformatories embodied each key aspect ofthe Mettraymodel in that the inmates were subject

75 See the marginal notes ofTozer and Griffith in G. Watson to Minister for Public Instruction, 14 April1892, QSA COLlA695 [4810].

76 G. Watson to Minister for Public Instruction, 14 April 1892, QSA COLlA695 [4810]. For a laterdiscussion, see QPD, vol. 79, 12 October 1898, pp. 738-40.

77 See, for example, Anthony M. Platt, The Child Savers: The Invention ofDelinquency, University ofChicago Press, Chicago, 1969, pp. 61-6; and Felix Driver, "Discipline Without Frontiers?: Representations ofthe Mettray Reformatory Colony in Britain, 1840-1880", Journal ofHistorical Sociology, vol. 3, no. 3, 1990,pp.280-1.

78 For discussions of Mettray see, for example, Driver, "Discipline Without Frontiers?", pp. 272-93;Foucault, Discipline and Punish, pp. 293-6; O'Brien, The Promise of Punishment, pp. 131-9; and JohnRamsland, "The Agricultural Colony at Mettray: A 19th Century Approach to the Institutionalization ofDelinquent Boys", Melbourne Studies in Education, no. 29, 1987-88, pp. 64-80. See also Ramsland, "LaMaison Paternelle: fa College ofRepression' For Wayward Bourgeois Adolescents in Nineteenth and EarlyTwentieth Century France", History ofEducation, vol. 18, no. 1, 1989, pp. 47-55.

79 Foucault, Discipline and Punish, p. 293.

Chapter 4: The Larrikin and the Demi-mondaine 215

to a fonn ofmilitary regimentation, industrial training, regular schooling, the daily

administration ofpunishments, and organisation consistent with the "family principle". 80

Although, it was in this latter area that an exclusively institutional response would not be

sufficient.

Fundamental to the "family principle" was the subdivision of the inmate population into

separate houses or cottages of up to forty inmates so that the maximum degree of surveillance

could be brought to bear upon each confinee and a moralising influence exerted by the

superintendent and his wife as they acted as de facto 'parents'.81 In Queensland, it was never

necessary to make this division because the total population in either the boys' or the girls'

refonnatories rarely exceeded this figure. It was also argued that boys' refonnatories should

be located in the country, where they could be isolated from the contaminating influence of

the city. This method ofreturning city-bred 'urchins' to the simpler, saner, more orderly

environment of the country squared neatly with assumptions about the future employment

prospects of state wards. The majority, it was hoped, were destined for work as unskilled

labourers, and hence, to become functional agents in the material advancement of the colony.

But without the necessary facilities to implement a serious programme ofagricultural training

at Lytton, the licensing out system developed into the main method for exposing the inmates

to country life.

In short, the system oflicensing out industrial and refonnatory school inmates involved

placing them in the employment and care of respectable working class families for a period of

up to three years.82 Ideally, these families were to be located in the country and would

employ the boys as fann hands. In the early years, however, it was not uncommon for boys to

be hired out to members ofBrisbane's small middle class. Often these were influential

representatives of the criminal justice system like D.T. Seymour, commissioner ofpolice, and

Thomas Barron, visiting justice to the refonnatory itself.83 Placement was not automatic,

80 Foucault, Discipline and Punish, p. 293-4. For more detailed discussion of the "family principle", seeDriver, "Discipline Without Frontiers?", pp. 276-7 and 289.

81 Steven Schlossman, "Delinquent Children: The Juvenile Reform School", in Norval Morris and David J.Rothman (eds), Oxford History ofthe Prison: The Practice ofPunishment in Western Society, OxfordUniversity Press, Oxford, 1995, p. 370.

82 29 Victoria, no. 8, s. 15. For early discussions of the boarding out of destitute, orphaned and abandonedchildren, see Brisbane Courier, 13 November 1874 and 16 December 1876.

83 J. Wassell to visiting justice, 26 November 1874, QSA COL/A200 [2478]; and J. Wassell to visiting

Chapter 4: The Larrikin and the Dcmi-motldainc 216

however, and the superintendent used the system as an incentive to encourage good

behaviour. 84 In fact, the administration of the scheme was almost entirely at the discretion of

the superintendent until regulations were formulated in 1891.85

While the licensing out system gradually came to supplant the "family principle" in Britain at

the end of the nineteenth century, it would appear that in Queensland the former method had

been the preferred option from the beginning of the reformatory system.86 It is doubtful

whether this can be attributed to an enlightened belief in the reformatory potential of life with

foster families. 87 Rather, licensing out simply represented the least expensive option for the

colonial state. Wassell neatly summarised the attitude of the government when he argued that

the system "is one of, ifnot the best, means ever tried for the reclamation oflads of the

neglected or criminal class, for by it, the country is relieved of the cost of their maintenance,

and the boys acquire the knowledge of some useful occupation which enables them to earn

their living after they are free from control".88 lfthe authorities had been seriously concerned

for the well-being ofchildren out on license, then they would surely have instituted a system

ofregular inspection.89 Apart from a statutory provision for inspections included as part of

the 1891 regulations, no rigorous system was ever devised to make it a genuine deterrent to

errant employers. The desire to relieve the state ofthe financial burden ofproviding for

delinquent and destitute youth was clearly an important motivation in promoting the licensing

out system.

justice, 5 July 1875, QSA COL/A2l! [1883].

84 See Goldman, Child Welfare in Nineteenth Century Queensland, p. 134. Blaney continued this practice atthe girls' refonnatory (see Blaney to Col Sec, 11 May 1894, QSA REF4/G2 Letterbook of theSuperintendent, Toowoomba Refonnatory and Industrial School, 1893-95).

85 QGG, vol. 54, no. 47,17 October 1891, pp. 570-1.

86 On Britain, see Driver, "Discipline Without Frontiers?", p. 288.

87 Nor can it be assumed that it was the proliferation of respectable working class families willing toaccommodate state wards that provided the sole motivation for expanding the system (see van Krieken,Children and the State, p. 74). In Queensland, the system was well under way before there was anysignificant increase in the working class population.

88 J. Wassell to Under Home Sec, 26 April 1898, QSA HOMlA45 [9438].

89 Regular supervision would certainly have been a considerable fmancial burden on the refonnatory systemand, as Rarnsland has argued for New South Wales, Queensland's thin rural population prevented theestablishment of a system of volunteer supervision like those used in Europe (Children ofthe Backlanes, p.211).

Chapter 4: I'he Larrikin and the Demi-/ttondaine 217

In 1899, the Lytton establishment was closed with the intention of transferring the reformatory

to a property at Westbrook near Toowoomba where it could better implement a scheme of

agricultural training for the inmates.9o At this time, Walter Richmond replaced Wassell as

superintendent. The new institution had been established with the intention that it would

become self-supporting, and greater effort was made to generate a substantial income from its

farm. 91 As well as employment in cultivating land adjacent to the institution, the inmates

were required to assist in the maintenance of a dairying plant and a large herd. A much

stronger emphasis was placed on the work regime and the boys could expect to become

involved in a wide range of tasks that often took them beyond the confines of the reformatory.

Each day a gang often boys not needed within the institution was marched from the

reformatory to the adjacent state farm to assist in the work being carried out there. After a

boy absconded in February 1905, Richmond argued that the system should be stopped. The

inquiring magistrate, however, considered that this would entail too great a loss to the public

and directed that in future a warder should accompany the boys at all times.92 The

reformatory was considered an indispensable source ofcheap labour for the state farm,

In 1905, Richmond was generously credited with having maintained the institution as "a

parental school rather than a place ofpunishment".93 Seven years later, however, the

government was presented with incontestable evidence that his superintendence was lacking

in certain key areas. An inquiry into the conditions ofWestbrook reformatory exposed a

number of startling deficiencies: on occasions fly-blown meat was simply washed and served

up at mealtime; the contents ofthe puddings were so poor that in combination they acted as a

laxative; the boys slept on wire mattresses without sheets, blankets or pyjamas; often their

garments did not fit correctly and parts of their bodies were exposed; they could only take

cold baths and towels were shared; there was no regular medical attention or dental treatment;

and finally, there was little privacy for each inmate.94 In spite of these wretched conditions,

90 The Diamantina Reformatory School for Boys at South Brisbane operated as an interim measure fromOctober 1899 to May 1900 (see QGG, vol. 72, no, 103,7 October 1899, p. 855; and QGG, vol. 73, no, 133,12 May 1900, p. 1330),

91 See, for example, QPD, vol. 89,24 September 1902, p. 657. In 1910, the fann was earning approximately£500 (see "Report of the Under Secretary, Home Secretary's Department, upon the Industrial andReformatory Schools established in Queensland ll

, QPP, vol. 2, 1910, p. 623),

92 Police magistrate, Toowoomba, to Under Sec, 6 March 1905, QSA HOMlJ12 [12851].

93QPD, vol. 96, 18 October 1905, p. 1239,

94 See "Report of the general inspection of the Westbrook reformatory by lG. Macdonald, visiting justice,

Chapter 4: I'he Larrikin and the Demi-ntondaine 218

there had been few cases of serious illness occurring at the institution. There had been a

fatality in 1903 when a boy succumbed to pneumonia caused by injuries sustained after a fall.

It was found that the tragedy could have been averted ifhe had been sent to bed and kept

warm immediately after the fall. 95 The incident demonstrates the consequences ofnot paying

sufficient attention to the medical requirements of reformatory institutions. The Lytton

establishment had only one hospital bed, while the Toowoomba reformatory had none. In

1883, two girls with measles had to be quarantined in a small cell in the vain hope that the

entire population would be insulated from infection.96 Rather than spend funds on extra staff,

when cases ofserious illness occurred at Westbrook they were immediately transferred to the

Toowoomba hospital- a demanding journey that increased the chances ofa fatality. The

harsh conditions at Westbrook ensured that life in the state reformatory would remain

punitive, rather than correctional, in orientation.

Church Intervention

At the same time as the government was contemplating transferring its reformatory for boys to

Toowoomba, it was also considering the merits ofallowing religious groups to establish their

own institutions. In fact, the matter was resolved before the move to Westbrook had even

been finalised when the authorities sanctioned the removal ofnine neglected girls from

Toowoomba to the newly-established Salvation Army Industrial School at Riverview.97 From

the early 1890s, representatives of the Salvation Army had begun to establish themselves in a

kind of advocacy role in which they would testify to the good character of,deservingI parents

applying for custody of their child and then mediate between the applicants and the

government bureaucracy.98 Occasionally, children were even hired out to the Army in lieu of

and George Ferguson, Director, State Children's Department", 2 August 1912, QSA A/4734 Westbrook.

95 Inquiry by visiting justice re death ofEdwin Webber, 12 September 1903, QSA HOMJA47 [11013].

96 Blaney to visiting justice, 15 January 1883, QSA REF4/G2 Letterbook of the Superintendent, ToowoombaReformatory and Industrial School, 1881-1893.

97 Matron to Supt, Industrial Home, Toowoomba, 9 June 1897 [0165], QSA A/4722 State Children,Reformatories other than Westbrook, 1897-1925.

98 See, for example, A. Hutchinson, Salvation Army, to Under Col Sec, 3 April 1890, QSA COL/A61O[3122]; W. Peart, Salvation Army, to Col Sec, 25 April 1893, QSA COL/A733 [4821]; and W. Peart,Salvation Army, to Col Sec, 2 June 1893, QSA COL/A736 [6387].

Chapter 4: The Larrikil1 and the Demi-mondainc 219

detention in an industrial and refOlmatory schoo1.99 It would appear that James Wassell

supported the extended involvement of the Salvation Army and was also keen to encourage

the Catholic church to follow suit. After only one year in operation, it was decided to transfer

the girls to a new establishment at Yeronga and convert the Salvation Army institution into

one for boys so that they could take advantage of the surrounding land for agricultural

activities. 10o The Home Secretary was assured that in this environment the boys could be

subjected to a high level of discipline and instruction that would "develop in them the highest

ideal of true Christian manhood and citizenship". 101 It was initially intended that only

neglected boys under the age of twelve would be handed over, but the lists of transfers include

boys as old as sixteen and many who had been convicted ofa criminal offence. I02

It was in the provision of institutional care for neglected and criminal girls, however, that

religious intervention was most pervasive. In 1903, it was decided that the Toowoomba

reformatory would be closed, and its inmates divided between the Salvation Army school at

Yeronga and the Catholic institution at Nudgee. 103 Immediate protests from the Anglican

authorities precipitated a revised scheme in which a third industrial school was to be

established at Clayfield. 104 Ultimately, the girls were distributed according to their stated

99 C.H. Jeffries, Salvation Anny, to police magistrate, Brisbane, 7 February 1895, QSA COLlA790 [1315].Others who had ended up in prison because they were too old for the refonnatory were occasionally releasedon probation into the care of the Salvation Army. See, for example, the case of a fifteen year old youthconvicted oflarceny in C.H. Jeffries to Col Sec, 5 September 1894, QSA COLlA780 [10387].

100 The first 25 boys were transferred to Riverview on 19 October 1898, leaving 78 at Lytton. On thediscussions to establish the Industrial School for Boys at Riverview, and for details of the transfers from thestate institution between 1898 and 1903, see Supt, Salvation Anny Industrial School for Boys, Riverview, toHome Sec, 28 April 1903, QSA HOMJA45 [9438].

101 MJCommandant Booth to Home Sec, 18 May 1898, QSA HO A45 [9438].

102 See supt, Salvation Anny Industrial School for Boys, Riverview, to Hom Sec, 28 April 1903, QSAHOMJA45 [9438]; and J. Wassell to Under Home Sec, 26 April 1898, QSA HOMJA45 [9438]. It was evensuggested that to save on paperwork neglected children who were too young for an industrial school, but whowere, strictly speaking, not orphans, should be sent directly to the Salvation Anny, rather than be made toappear in court. Home Secretary Foxton disagreed: "I think that all committals to refonnatories should be toa Goy! institution whence the children can be afterwards transferred to the schools at Riverview andYeronga". His sentiments demonstrate that the state was not yet willing to relinquish entirely itsresponsibility for the welfare of neglected children (see Police magistrate, Brisbane, to Under Sec, 23February 1900, QSA HOMJA27 [2738]).

103 Initially, the plan had been to transfer the girls to the old immigration barracks at Kangaroo Point inBrisbane (See Under Secretary, Department of Public Works, to Under Secretary, 9 July 1903, QSAHOMJA45 [8775]; and Brisbane Courier, 28 July 1903).

104 A.E. David to Home Secretary, 29 July 1903 [9499] & A.E. David to Home Secretary, 21 August 1903,QSA N4722 State Children, Reformatories other than Westbrook, 1897-1925, [10288].

Chapter 4: 'fhe Larrikin and the Demi-mondaine 220

religion, with those not considered either Catholic or Church of England being sent to the

Salvation Army. lOS The Toowoomba institution itselfwas then formally closed on 14 October

1903. 106

It would appear that the churches conducted their establishments along the same lines

initiated by Blaney in Toowoomba. The Salvation Army, for example, saw no reason to

deviate from the principle ofdomestic training: "When a girl enters the Industrial School, she

is placed on some special work, then every few months her work is changed. So she passes

from dormitories to dining room, from kitchen to pantry, from laundry to sewing room, etc,

till at the expiration ofher term in the School, she is quite able to take a situation, and to

support herself in comfort and respectability". 107 In the area ofdiscipline, both Catholic and

Protestant found it necessary to employ methods of "correction" in cases ofcontinued

misbehaviour, and in 1906 they began to investigate the possibility of imposing solitary

confinement and dietary punishments. 108 A fourth institution for girls had been declared at

the Holy Cross Retreat at Wooloowin in 1904 to deal with what were described as

"incorrigible" inmates. 109 The label was really a euphemism for prostitutes or others who had

somehow violated the sexual norms of the day, and the girls transferred to the institution

found themselves in the company ofa variety of "fallen women". By 1911, it was obvious

that the disciplinary techniques were failing to have a significant deterrent effect on the

inmates. Absconding from both girls' and boys' institutions had become so common that, in

desperation, it was suggested a term ofone months imprisonment should be imposed on110future escapees.

105 Under Sec to Brigadier E. Knight, 1 October 1903, QSA A/4722 State Children, Reformatories other thanWestbrook, 1897-1925, [11090].

106 For a brief history of the institution since it was fIrst established, see Blaney's report to Home Secretary,June 1901, QSA HOMlA35 [9887].

107 Report from Girls' Industrial School, Yeronga, 1906, QSA A/4722 State Children, Reformatories otherthan Westbrook, 1897-1925 [7855].

108 Visiting justice, Nudgee, to Under Sec, 6 August 1906,QSA A/4722 State Children, Reformatories otherthan Westbrook, 1897-1925 [9496].

109 "Report of the Under Secretary, Home Secretary's Department, upon the Industrial and ReformatorySchools established in Queensland", QPP, vol. 2, 1910, p. 624. See Goldman's discussion in Child Welfarein Nineteenth Century Queensland, pp. 148-9.

110 Police magistrate, Brisbane, to Under Sec, 16 August 1911, QSA A/4735 Westbrook [7693]. In 1909, theComptroller-General's advice was sought regarding the best form of treatment for incorrigible inmates inWooloowin Industrial Home (see C-G to Home Sec, 21 November 1909, QSA HOMIB22 [15250]).

Chapter 4: The Larrikil1 and the Demi-mondaine 221

It was around the tum of the century that industrial schools were established exclusively for

Aboriginal youths as well. According to the 1865 Act, "any child born of an Aboriginal or

half-caste mother" was to be regarded as neglected, III Consequently, a few Aboriginal

children found their way into the appropriate state institutions. 112 Later, as the government set

about developing its regulatory bureaucracy for the Aboriginal population, other industrial

schools were established on some of the missions and reserves scattered around the

colony/state. Deebing Creek was the first in 1896, then Yarrabah in 1900, and Mapoon

followed soon after in 1901. From this point, Aboriginal industrial schools were the most

common destination for indigenous youths designated as neglected or criminal. This

separation of institutions was a product of the realisation that it was much less expensive for

the government to maintain a child on an Aboriginal reserve, than in an orphanage or

industrial school. In 1910, the government was spending on each Aboriginal inmate a third of

what it was on youths in the denominational institutions. I 13

At first glance, it appears that increased denominational involvement in the enterprise of

child-saving was the logical consequence ofan emphasis upon treating the moral deficiencies

ofwayward youth. But a more complete explanation must take into account the economic

advantages that such a transition would have had for the government. The provision of

reformatory care in the previous three decades had instructed the authorities in the harsh

realities ofattempting to make each institution self-supporting, and a more cost effective

alternative was bound to hold great appeal. Eventually, it was agreed that the state would

provide a subsidy of seven, and later eight, shillings per week for each inmate, saving it the

considerable expense ofmaintaining a girls' reformatory. I 14 But the new policy did not

proceed unchallenged. In 1902, William Kidston, then Labor member for Rockhampton,

III Industrial and Reformatory Schools Act of1865, 19 Victoria, no. 8, s, 6,

112 See, for example, the mention offour "half-caste" girls in Supt to visiting justice, 15 January 1883, QSAREF4/G2,

113 "Report of the Under Secretary, Home Secretary's Department, upon the Industrial and ReformatorySchools established in Queensland", QPP, vol. 2, 1910, p. 623. For a more detailed study of the institutionsestablished for indigenous youths, see Commission ofInquiry into Abuse ofChildren in QueenslandInstitutions (Forde Inquiry), Brisbane, Queensland Government, 1999, ch. 4.

114 In the early years, the weekly subsidy proved to be more expensive than maintaining the reformatory hadbeen, but it did become more cost effective as time progressed (see QPD, vol. 93,2 December 1904, p. 1089,and the "Supply" debates of succeeding years).

Chapter 4: The Larrikin and the Demi-mondainc 222

spoke against delegating to religious bodies what he regarded as "a duty of the115Government". Home Secretary Foxton responded:

This was by no means the only matter which the State handed over to theSalvation Army, or other more or less religious institutions. Many of our waifsand strays, both juvenile and adult, were handed over in the same way for socialreformation. There were quite a number of institutions in Queensland whichwere subsidised by the State, and they were very much better managed by privateindividuals than they would be by the State,116

The economic imperative outweighed any moral considerations ofgovernment

'b'l' 117responsl 1 Ity.

With the establishment of Westbrook Reformatory and the denominational industrial schools

for girls, the Queensland government had embarked upon a new course in its methods for

dealing with wayward youth. By adopting a gender division in the system for punishing and

reforming criminal and neglected youths, a precedent was established that would remain for

the next seven decades. Boys convicted of offences were generally committed to a state

administered institution that conformed to penal or, at least, prison farm policies and

practices, Neglected boys, however, were sent to either Westbrook or a denominational

industrial school, such as the Salvation Army institution at Riverview or the Boys! Home at

Enoggera. Girls, on the other hand, whether convicted ofoffences or simply in need ofcare,

were to be confined in denominational industrial schools. It was this differentiation in

strategy that confirmed the distinctiveness ofthe Queensland system. In no other state were

the churches so heavily involved in the administration of institutions for delinquent youth,

especially in the case ofonly one gender. I IS

One final feature of the Queensland system was that it assumed the category of "youth"

included those aged 17 and under, There was no attempt to develop an institution to reclaim

convicted males or females aged 18-21. In 1911, the Comptroller-General of Prisons argued

115 QPD, vol. 89,24 September 1902, p. 657, He asked pointedly whether the Salvation Army would bebetter than the government at running "prisons, or Dunwich, or day schools".

116 QPD, vol. 89,24 September 1902, p. 657. The issue was raised again in the following year (see QPD,vol. 91,2 September, 1903, p. 457).

117 Goldman has also recognised the importance ofeconomic considerations (see Child Welfare in NineteenthCentury Queensland, p, 152).

118 Seymour, Young Offenders, p. 55,

Chapter 4: The Larrikin and the Demi-mondainc 223

in favour of such a facility after observing the success of the "Borstal System" in Britain. 119

This new scheme involved the establishment of institutions that were effectively halfway

houses between reformatories and prisons. They varied in their policies and procedures, but

they all employed lengthy, curative sentences, as a rule, and endeavoured to implement a

more individualised, therapeutic approach to the treatment ofdelinquency with inmates

progressing through grades on the basis oftheir behaviour and industriousness. 120 An obvious

impediment to the establishment of such institutions in Queensland was the small number of

offenders in the 16-21 age group throughout this period. In 1906 Pennefather had suggested

that one of the state's smaller prisons be set aside for use as a juvenile institution. 121 By 1909,

he was being supported by the local press, who had come to regard the Borstal movement as a

success in Britain and had begun to campaign for its i~troduction in Queensland. 122 The

state's population was steadily increasing and Pennefather was certain that an institution for

juveniles would have to be established in the near future. 123 But the situation eased with the

gradual reduction in prison admissions during the second decade of the twentieth century, and

was not to emerge again until the mid-1920s.

Imprisonment of Women

For the first decade after separation from New South Wales women were confined in separate

sections ofeach of the colony's gaols. In Brisbane Gaol they were allocated an entire wing

with separate cell accommodation for a maximum of thirty-six prisoners. Rarely, however,

did their number exceed twenty during these early years, and many of the cells remained

unoccupied. During frequent periods of overcrowding, the authorities were continually

frustrated at not being able to exploit the available accommodation in the female wing to

119 See, for example, "Annual Report of the Comptroller-General of Prisons, 1910", QPP, vol. 2, 1911-12, p.591.

120 See, for example, Victor Bailey, Delinquency and Citizenship: Reclaiming the Young Offender, 1914­1948, Clarendon Press, Oxford, 1987, esp. chs. 7-9; and DJ. West, The Young Offender, Penguin,Harmondsworth, 1974, esp. pp. 225-9.

121 ARC-G, 1905, QPP, vol. 2, 1906, p. 1527.

122 Telegraph, 5 January & 11 September 1909; Brisbane Courier, 6 October 1910; and Truth, 19 January1913.

123 ARC-G, 1910, QPP, vol. 2,1911-12, p. 591; ARC-G, 1912, QPP, vol. 2,1913, p. 204; andARC-G,1914, QPP, vol. 2,1915-16, p. 468.

Chapter 4: The Larrikin and the Demi-mondainc 224

temporarily confine men. 124 The situation prompted the formulation ofa plan to erect a

barracks alongside the gaol in which the women could be housed. The decision to erect a

prison on St Helena, however, temporarily relieved the pressures ofovercrowding and the

proposed extension did not proceed. The new decade witnessed a minor restructuring ofthe

penal system in which it was decided to utilise Toowoomba Gaol for the detention of all

female prisoners convicted in the southern districts. 125 Henceforth, women sentenced to terms

of imprisonment for as little as seven days were temporarily held in the Valley Gaol until

transport to Toowoomba could be arranged. 126 The gaol continued to maintain a small

population ofmen serving short sentences to assist with maintenance.

Protests were registered immediately after the decision to confine large numbers ofwomen in

Toowoomba Gaol had become known to the general public. In a letter to the Colonial

Secretary in 1870, W.H. Groom expressed the reservations ofa number ofhis constituents

about the type ofcriminals who would then be attracted to the town. 127 There was a general

expectation that the gaol would become "the receptacle for the female prostitutes of Brisbane

who were [then] turned loose on the streets ofToowoomba". 128 The threat of immorality

from these women was considered an unfair burden for the town and directly challenged the

notions of respectability that had become strengthened with Toowoomba's recent prosperity.

A few years later, after the system had been successfully introduced, Groom again became a

mouthpiece for the "leading families" ofToowoomba when he petitioned the govemment to

remove the "slur" that had been cast upon them. 129 He argued that since Toowoomba was fast

124 See, for example, the complaint recorded in the report of the 1867 select committee (SCPD, p. 1092). In1862, however, the gaoler did utilise the spare cells in the female wing for the detention ofmen at night(Sheriff Brown to Col Sec, 3 February 1862, QSA COLlA25 [0435]).

125 ARS, 1872, QVP, 1873, p. 1289.

126 For evidence of a woman sentenced to imprisonment for one week being sent to Toowoomba Gaol, seeSheriff to Under Col Sec, 20 July 1887, QSA COLlA509 [5643].

127 William Henry Groom was a newspaper-owner and successful businessman. He had a long career inparliament (1862-1901) in which he persistently advocated a brand of agrarian radicalism on behalfofhisDarling Downs constituents. Groom's outspokenness on this occasion is ironic, considering that he originallycame to Australia as a convict on board the Hashemy, and was later convicted of theft and imprisoned inVictoria before migrating to Queensland in 1856 (Australian Dictionary ofBiography, vol. 4: 1851-1890,Melbourne University Press, Melbourne, 1990, pp. 304-5).

128 W.H. Groom to Col Sec, 15 December 1870, QSA COLlA151 [3316]. See also the petition printed inQVP, vol. 3, p. 259.

129 W.H. Groom to Col Sec, 10 March 1874, QSA COLlA193 [0530].

Chapter 4: 11JC Larrikiu and the Demi-mondaine 225

becoming the colony's second town this was reason enough to remove the stigma from the

place and find a more suitable location for these "unfortunates". This attitude was in contrast

to the initial enthusiasm expressed by Toowoomba residents at the decision to erect a gaol in

1861. 130 Over a decade later, however, it was the type ofoffender destined for the newly

redesignated institution - the prostitute - that provided the impetus for the community outcry.

It would appear that it was Toowoomba's respectable middle class that had been offended by

the government's decision to establish a female reformatory prison. The position ofthe

prostitute in colonial society was an unenviable one. 131 As Zedner has argued for Victorian

Britain, female offenders not only endured censure for breaking the law, but they also suffered

the ignominy ofhaving contravened the social norms that defined what was appropriate

behaviour for respectable women:

The prescriptive ideology of femininity in Victorian England gave women animportant moralizing role: not least the responsibility for maintaining therespectability of their family. As a result women's crimes contravened not onlythe law but, perhaps more importantly, their idealized role as wives and mothers.The high social costs attributed to criminality in women attracted considerablepublic anxiety and, as a result, female offenders were likely to be severelystigmatized. Most strongly condemned were women involved in so-called'crimes of morality', particularly offences relating to prostitution andalcoholism. 132

The prostitute represented the very antithesis ofVictorian respectability.133

It is now well-documented that from the mid-nineteenth century there emerged an increasing

obsession with 'crimes ofmorality' that went well beyond the physical or financial threat these

130 Refer to chapter 2 above (Chief Clerk, Colonial Architect's Office, to Principal Under Secretary, 10February 1862, QSA COUA25 [0479]).

131 The history ofprostitution in Australia is now a well-developed field. The obvious starting point for theresearcher is the historiographical work of Raelene Frances, "Australian Prostitution in InternationalContext", Australian Historical Studies, vol. 27, no. 106, 1996, pp. 127-41. See also Allen, Sex and Secrets;and the collection of articles in Kay Daniels (ed), So Much Hard Work, especially Evans, '''Soiled Doves'''.For Queensland, see also Rod Fisher, "Old Frogs Hollow: Devoid ofInterest, or a Den ofIniquity?",Brisbane in 1888: The Historical Perspective, Brisbane History Group Papers, no. 8, 1988, pp. 17-46.

132 Zedner, Women, Crime and Custody, p. 2.

133 The level ofcommunity distaste at the existence ofbrothels in Queensland was demonstrated in theoutrage generated after the Legislative Council voted to omit a clause dealing with the prohibition ofbrothelsfrom the "Bill to make better provision for the protection ofwomen and for the suppression of brothels" in1891. A huge petition was compiled and the press condemned the Council's decision. For details, seeBarber, "The Criminal Law Amendment Act of 1891", p. 105.

Chapter 4: The Lanikin and the Demi-mondaine 226

generally victimless crimes posed to law abiding citizens. 134 Both government and public

discourses on prostitution reflected the perceived threat that such an "immoral" activity posed

to the moral fabric of respectable society. From early on in colonial Queensland, these

attitudes towards prostitution were supported by legislation. In the late 1860s, anxiety about

the health risks posed by Queensland's prostitutes aided the successful passage though

parliament ofa unique piece ofpreventive legislation - an Actfor the Prevention of

Contagious Diseases, 1868. 135

Historical work on the subject is extensive, and there seems little point in including more than

a briefdiscussion ofthe nature of the Act. 136 Modelled on amended English legislation of two

years earlier, the Act provided for the compulsory periodical examination ofwomen deemed

to be prostitutes and, if found to be infected with a venereal disease, required their detention

in a hospital for a period not exceeding six months. Treatment would take place, but was not

guaranteed to effect a cure. Terms of imprisonment could be imposed ifwomen refused to be

examined, absconded from hospital or continued to work as prostitutes when discharged

uncured. While the English legislation was only applied in garrison towns - to protect the

military from infection - the Queensland Act was desIgned to encompass the civil population,

as towns were successively declared to be subject to its provisions. The new legislation was

clearly discriminatory in that it applied only to women - in practice, poor women. This bias

severely limited its preventive potential in that it did nothing to limit the activities ofmen who

had become infected with a venereal disease. So, for the nineteenth and early twentieth

centuries, the Queensland authorities were armed with legislation to control the activities of

all prostitutes under their jurisdiction. 13?

134 See, for example, Emsley, Crime and Society in England, pp. 67-8; and Zedner, Women, Crime andCustody, pp. 30-1.

135 31 Victoria, no. 40.

136 For further reading on contagious diseases legislation in Queensland and beyond, see Enid Barclay,"Queensland's Contagious Act, 1868· 'The Act for the Encouragement of Vice' and some Nineteenth Centuryattempts to repeal it", Pts 1 and 2, Queensland Heritage, vol. 2, no. 10, and vol. 3, no. 1, 1974, pp. 27-34 andpp. 21-9; Evans, '''Soiled Doves"', pp. 141-9; Kay Saunders, "Controlling (hetero) sexuality: Theimplementation and operation of contagious diseases legislation in Australia, 1868-1945", in Kirkby (ed.),Sex, Power and Justice, pp. 2-18; F.B. Smith, "Ethics and Disease in the Later Nineteenth Century: TheContagious Diseases Acts", Historical Studies, vol. 15, no. 57, 1971, pp. 118-35; and Judith Walkowitz,Prostitution and Victorian Society: Women, Class and the State, Cambridge University Press, Cambridge,1980.

137 The Act was effectively superseded in 1911 with the introduction ofnew public health legislation (thatapplied to men as well as women). The English legislation had been repealed in 1886.

Chapter 4: ]'heLarrikin and the Dcmi-mondaine 227

The existenceof the Contagious Diseases Act necessitated the establishment of a specialised

institution for the secure detention and treatment ofprostitutes - the lock hospital. 138 A

location adjacent to the general hospital was chosen as the appropriate site. Conditions in the

substandard and insecure accommodation were harsh. It was an extremely degrading

experience to be confined there, exposed to the scornful gaze of staff and occasional passers

by, bereft of even moderately stimulating activities to relieve the boredom, and continuously

subject to an intrusive routine ofmedical examination and "treatment" .139 As a consequence,

many of the women forcibly detained in the lock hospital resisted the restrictions placed upon

their freedom. The resulting indiscipline amongst the inmates eventually became an issue in

the mid-1880s. 14o The medical officer often attempted to control unruly inmates by locking

them in a bathroom. He was not, however, empowered to impose solitary confinement upon

inmates until legislation was passed in 1885. 141 Successful escapes were not uncommon, but

punishment was sure to follow recapture. When, in 1897, two women successfully escaped

from the lock hospital by pulling away a board in the fence, one was later sentenced to three

months imprisonment under the Contagious Diseases Act. 142 Occasionally some inmates

expressed a desire to reform. In 1884, for example, permission was reluctantly granted for

five women, who had demonstrated a willingness to desist from prostitution, to be transferred

from the lock hospital to the Home for Fallen Women. 143 Ever suspicious of their motives,

however, the authorities were careful to ensure that the police were instructed to keep a

watchful eye on their progress in the less secure institution. In 1900, the penal nature of the

lock hospital was formalised when the authorities established a new facility on the gaol

138 For a brief discussion of the use oflock hospitals in Queensland, see Evans, Charitable Institutions, pp.273-5.

139 It should be remembered that not all of those admitted to this unsavory environment were adults. In 1883,for example, a 13 year old neglected girl was transferred from the reformatory to the lock hospital (seeBlaney to Visiting Justice, 3 January 1883, QSA COL/A352 [0051]).

140 For details, see the correspondence from the medical officer in Correspondence records and reports onhospitals and hospital boards, Brisbane, Lock Hospital, 1885-1911, QSA COL/360. See also medicalsuperintendent Jackson to Col Sec, 26 August 1886, QSA COL/A478 [6649].

141 See Government Gazette, vol. 38, no. 65, I May 1885, p. 1613.

~ RIIComptroller-General to Under Secretary, 2 June 1897, QSA P A61 [1621). For other examples, seesuperintendent, Toowoomba Prison, to Comptroller-General, 1 July 1901, QSA PRIlA87 [2191]; and sub­inspector to chief inspector ofpolice, 15 October 1897, QSA POL/135.

143 Medical superintendent Jackson to Under Col Sec, 28 August 1884, QSA COL/A399 [6033).

Chapter 4: I'he Larrikin and the Dcmi-mondaine 228

144reserve.

In the opinion of the authorities, the vast majority ofwomen admitted to prison were known

prostitutes. In the six month period ending 31 March 1887, there was a total of 134

admissions to the Valley Gaol. Of this number, 122 were registered prostitutes, and all but

one of the remaining 12 were children admitted for protection. 145 Moreover, behind the

general category oflabouring, the most common profession identified for the prisoners

incarcerated during 1887, both female and male, was prostitution. 146 It is difficult to

determine whether these confident observations were completely accurate. It seems likely

that many police and magistrates would have been influenced by the prevailing colonial

attitudes towards offending women and been inclined to label any 'deviant' woman as a

prostitute, especially one who was inclined to drink.

The establishment of the Toowoomba Gaol as a women's facility coincided with the

movement to establish reformatory prisons solely for women in both Canada and the United

States. But the similarity ended there. 147 The first Canadian institution, in Ontario, and the

first American one, in New York, were both established as reformatories in which the ideals

ofmodem penology were to be implemented in reclaiming the lives ofpredominantly young

public order offenders. The Toowoomba Gaol was little more than a stockade in which

women ofall criminal types and ages were incarcerated in association. 148 For the three

decades following the removal of the majority ofmale prisoners from Toowoomba Gaol there

was no attempt at introducing therapeutic and rehabilitative methods to assist in reforming the

inmate population. Throughout this period the briefofthe Gaoler and Matron, Henry and

Catherine Blaney, was simply to maintain good order in the gaol. The fact that the Ontario

144 Inspector ofWorks to Government Architect, 16 November 1900, QSA HOM/A32 [17928].

145 Commissioner ofPolice to Col Sec, 1April 1887, QSA COLlA496 [2831].

146 Prostitution accounted for twelve per cent of the occupations ofall prisoners in that year (see ARS, 1887,QVP, vol. 1, 1888, p. 913).

147 For details on the Andrew Mercer Ontario Reformatory for Females, see Carolyn Strange, '''The Criminaland Fallen ofTheir Sex': The Establishment ofCanada's First Women's Prison, 1874-1901", CanadianJournal ofWomen and the Law, vo11, 1985, pp. 79-92. For America, see Rafter, "Chastizing the Unchaste".

148 Nicole Rafter has shown that in late-nineteenth century America only a minority of female offendersserved their sentences in reformatories based on rehabilitative ideals (see Rafter, Partial Justice, chs 2-3).The majority were incarcerated in prisons and gaols which were simply designed to isolate the offenders fromsociety.

Chapter 4: The Larrikin and the Dcmi-mondaine 229

institution was funded from a substantial bequest, and the American institutions resulted from

detennined campaigns led by influential upper-middle class womenI49, suggests the extent to

which the implementation ofmodem rehabilitative techniques relied upon private

philanthropy in colonial settler states. No generous donations were forthcoming in colonial

Queensland, and there is no evidence ofa campaign to establish a separate women's

refonnatory.

The methods employed to refonn female offenders were at best rudimentary. After all, the

prospects for reclaiming this class ofoffender were widely considered to be especially grim.

In 1872 the Sheriffcontended that women prisoners were "the most degraded and difficult

class to deal with", and the criminal statistics repeatedly demonstrated a tendency towards

recidivism. I5o Religious instruction and counselling by visiting 'ladies' played a minor part in

the rehabilitation process, while the majority of each week was spent at work. Like the

convict prisons for women in Britain and the other colonies, the Toowoomba (and later the

Brisbane) institution adopted a variety offeminised penal practices to refonn the inmates.

The most obvious of these was a work regime based on domestic labour and, somewhat

optimistically, intended to improve the moral and spiritual well-being ofwomen offenders as

well as inculcate habits of industry and self-reliance. As Zedner has emphasised, the prison

laundry fulfilled an important symbolic function in the process ofreclaiming fallen women:

Cleanliness, thought to be inimical to the temper of criminal women, was asmuch an element of discipline as it was of refonn. Whilst men escaped daily tothe filth of the public works, female labour revolved around an endless routine ofscrubbing and cleaning. Significantly, the laundry was the most important andmost frequently lauded fonn of employment at Brixton, for it exemplified theprocess ofphysical and, above all, spiritual purification (quite apart fromproviding the women with a livelihood on release). The extreme cleanliness ofher surroundings was designed to encourage a parallel self-purification. 151

In Toowoomba Gaol, however, the established work regime was a fairly ad hoc affair. 152

149 Rafter, "Chastizing the Unchaste", p. 290.

150 ARS, 1872, QVP, vol. 1, 1873, p. 1289. It followed that the possibility of refann following release fromgaol was unlikely. In 1872, the Sheriff argued that in the small communities typical of colonial Queensland,women offenders become well known and consequently had little chance of reformation ("Report on thePrevention and Repression of Crime, including Penal and Reformatory Treatment in Queensland", QVP,1872, p. 1488).

151 Zedner, Women, Crime and Custody, p. 189.

152 This was underlined in 1886 when the gaoler was asked what the women did for employment. He

Chapter 4: T'he Larrikin and the Demi-molldainc 230

Laundry work was performed in the morning and sewing in the afternoon. In 1881, two

workshops existed in the Gaol, but little work was achieved "owing to the wretched class of

female prisoners confined therein". 153

The decision to utilise Toowoomba Gaol as a women's prison did little to alleviate the

overcrowding in the northern districts. In 1874 at Rockhampton Gaol, for example, four

women were being kept in a cell designed for one. I54 The problem remained until the new

gaol was completed in 1884, although the construction ofTownsville Gaol in 1878 had

assisted in reducing the burden. 155 The latter institution then became the main gaol for

women until the construction of Stewart's Creek Penal Establishment in the early 1890s. At

Townsville, conditions were harsh, with all the women forced to sleep on the concrete floor as

punishment for using their bed-boards as stands to facilitate communication with and expose

their naked bodies to the male inmates. 156 An improved design at the new penal

establishment ensured that following 1892 such behaviour would be minimised. In the new

facility there was ample space for the individual confinement of its complement of female

prisoners. For the next few decades the daily average rarely exceeded ten and the authorities

were able to institute periods of separate treatment for certain offenders. I57 These women

were detained in their cells, where they were required to undertake employment repairing

prison garments. They were allowed only one hour of exercise each day. This was the first

serious attempt to institute separate treatment for female prisoners involving some form of

compulsory regular employment.

Conditions in Toowoomba Gaol were possibly the worst ofall the major gaols in the

colony.158 This estimation was borne out by the investigations of the commissioners during

responded, "all kinds ofslop work" (El, p. 1016).

153 ARS, 1881, QVP, vol. 1, 1882, p. 415.

154 ARS, 1874, QVP, vol. 1, 1875, p. 642.

155 ARS, 1878, QVP, vol. 1, 1879, p. 743.

156 BI, p. 731.

157 For further details, see Supt, Stewart's Creek, to C-G, 24 June 1903, QSA PRIJAI04 [2118].

158 The debates in parliament that followed the publication of the inquiry focussed on the deplorableconditions atToowoomba. See, for example, QPD, vol. 51,27 October 1887, p. 125; vol. 52, 14 September1887, pp. 560-3; and vol. 53, 25 October, 1887, pp. 1210-2.

Chapter 4: The Larrikin and the Demi-/tlondaine 231

the 1887 board of inquiry:

Our firm conviction is that no woman can enter Toowoomba Gaol withoutbecoming degraded, losing self-respect, and made infinitely worse than beforeshe stepped within its walls.... It is the system which is at fault, and until that canbe altered and female prisoners confined separately, with classification for workpurposes, we may regard the gaol as little better than a manufactory ofabandonedand criminal women. 159

Most of the women were confined in a ward containing twenty-four beds (on one occasion

forty-one were held there), while the remainder were divided between another two wards of

five beds each. There were also two small associated wards for the men and four single cells.

The gaol frequently experienced periods ofovercrowding in which first offenders were

forced into association with habituals. 16o This problem was exacerbated by the small exercise

yard, with its "numerous nooks and recesses" allowing communication between different

classes ofprisoner and hindering effective surveillance by the turnkeys. The defective design

was the inevitable result of incremental building in response to the regular pressure of

overcrowding. In the area ofprison employment there had been some improvement on the

former situation at Brisbane Gaol where the women had been kept in complete idleness. 161

As already mentioned, they were now required to perform domestic duties like repairing or

washing prison clothing. But there were still frequent periods of inactivity in which no work

could be found or there was no time to train prisoners serving short sentences. 162 These, and

other observations, led the 1887 commissioners to conclude that a female wing should be

established at Brisbane Gaol, and the practice of imprisoning women in the Valley and

Toowoomba Gaols discontinued. 163 But any change would be a long time in coming.

Various forms ofrebellion were employed by the women in resisting the oppressive

supervision of the authorities. One of the most offensive to officialdom was to subvert the

159 BI, p. 724. See also QPD, vol. 53,25 October 1887, pp. 1210-2.

160 See, for example, ARS, 1874, QVP, vol. 1, 1875, p. 641.

161 SCPD, pp. 1113-4.

162 WG Bailey (MLA) to Col Sec, 18 June 1878, QSA COLlA260 [2262]. He emphasised that "...habits ofindustry should be encouraged among these unfortunates". The gaoler was reprimanded at the 1887 inquiryfor improperly utilising the labour of the prisoners for his and his wife's own benefit (BI, p. 726).

163 BI, p. 690. The Valley Gaol was also strongly criticised in the report (see BI, pp. 740-1; and QPD, vol.53,25 October 1887, p. 1215).

Chapter 4: "I be Lnrrikil1 and the Demi-mondaine 232

segregative ideal by communicating with male inmates. The prevention of such behaviour

was difficult at institutions like Toowoomba Gaol, where poorly constructed buildings made

complete separation impossible. 164 It was a problem that plagued most ofQueensland's penal

institutions, especially the older ones. At Normanton Prison, for example, the existence of a

single yard meant that when the women inmates were exercising they could lie on their

stomachs and speak to the men confined in the cells through holes in the stockade fence.

Sugar and other contraband was also passed between the two groups. 165 In Townsville Gaol

women were frequently reprimanded or punished for other offences like using obscene

language, impertinence, insolence, or exposing their bodies (even ifonly the neck and

shoulders). In fact, female turnkey Morris's proclivity for recording instances of female

misbehaviour, no matter how trifling, would suggest that in this institution the women were

subject to a greater degree of surveillance than the men. 166 Certainly, they were more likely to

be reprimanded for minor behavioural infringements that offended contemporary perceptions

of the appropriate manner in which women should conduct themselves.

The punishments resembled those employed for the men, except that floggings were

prohibited. Instead, the most severe penalty was a period ofsolitary confinement in a dark

cell. This particular apparatus received special attention in the report of the 1887 inquiry in

its discussion ofToowoomba Gaol: "There are no windows in the dark cell, ventilation is

supplied by augur-holes in the ceiling and two perforated iron plates in the floor. The air

when the door is shut is most oppressive, the smell is abominable, and there are no means of

communication with officials except by knocking" .167

The distance ofToowoomba Gaol from the capital, where most resided at the time oftheir

conviction, also placed women prisoners at a disadvantage. Isolation from friends and

relatives added to the loneliness of a prison term, and contact with Brisbane's charity workers

was severely curtailed. Occasional visits from resident religious figures such as the Sisters of

Mercy and members of the local branch of the Women's Christian Temperance Union

164 BI, p. 722.

[65 Visiting Justice, Nonnanton Prison, to C-G, 11 September 1901, QSA PRIlA89 [3350]. More cells weresubsequently erected to deal with the problem.

166 See turnkey's duty report book, HM Gaol, Townsville, 1889-1890 and 1893-1896, QSA N45924.

[67BI, p. 722.

Chapter 4: The Larrikin and the Dcmi-mondaine 233

(WCTU) were the only contact the inmates had with people interested in their successful

reformation. 168 When prisoners were released from the Gaol they were placed on a train

bound for Brisbane, often arriving late in the evening. Eventually, the Salvation Army made

arrangements to be furnished with lists ofwomen due for discharge, so that they could arrange

to meet them at the railway station and attempt to keep them from their old associates. 169

For women serving sentences in Townsville, however, a Discharged Female Prisoners' Aid

Society (DFPAS) was in operation for a briefperiod from June 1890 to sometime in 1898.170

Not surprisingly, the society was a Christian organisation comprising an amalgamation of

members from the various denominations that had been established in Townsville. 171 Its

objectives were to visit the prison regularly, meet discharged prisoners at the gate, provide

them with temporary homes, collect funds, and secure employment for the women. Initially,

the DFPAS survived on a meagre budget with its members having to accommodate released

prisoners in their own homes. 172 There was a plan to establish a permanent home, but there is

no evidence to confirm that a property was ever secured. The greatest difficulty for its

workers was finding employment for women bearing the 'convict stain'. The early statistics

were not encouraging: in its first six months the society provided assistance to seventeen

women, with twelve eventually returning to their "evil ways", 173

168 See, for example, C-G to Principal Under Sec, 1 June 1894, QSA COL/A772 [6218]; and A.E. Palethorpeto C-G, 23 August 1897, QSA PRIlA62 [2444].

169 Brigadier P. Kyle to C-G, 14 July 1897, QSA PRIlA61 [2071].

170 The society was eventually disbanded after the Salvation Army began to fulfil an identical role (see ARC­G, 1898, QVP, vol. 4, 1899, p. 125). There was some discussion about forming a prisoners' aid society forwomen in Brisbane. See Queensland Figaro, 24 April 1886 and Queensland Evangelical Standard, 10September 1886. At the ftrst annual meeting of the DPAS, the secretary, Mr Parr Smith, stated that thesociety had been prepared to give assistance to women, but they had received only a single application in thepast year (Evening Observer, 18 October 1887).

171 For details on the DFPAS, see Townsville Bulletin, 13 November 1890.

172 The DFPAS did request that the government register it as a benevolent society so that it may have becomeeligible for an annual gratuity. Colonial Secretary Tozer refused the request, however, because the societydid not work exclusively with paupers (see S. Hodges for Emma Davis to Col Sec, 30 November 1890, QSACOL/A640 [12792]).

173 Pennefather was later satisfted that the society was making progress (see ARC-G, 1896, QVP, voL 2,1897, p. 2).

Chapter 4: 'I11e Larrikin and the Demi-mondainc 234

The "CarceraI System" for Women

By the mid-1890s, there had developed in the colony a carceral "system" for offending

women guilty of "immoral" activity. 174 The system was propelled by the prevailing colonial

discourses of "the fallen woman", and was comprised ofa range of institutions for the

voluntary reception or compulsory detention ofwomen whose morality had been called into

question by representatives ofcharitable organisations, or through the formal processes of the

criminal justice system. There was the lock hospital for known prostitutes and a range of

what could be described as semi-penal charitable institutions administered by denominational

organisations to reclaim "fallen" women (the Catholic-run Magdalen Asylum and the

Salvation Army's Rescue Homes, for example). 175 For girls there was the reformatory at

Toowoomba and, later, the various denominational institutions. For women on remand, there

were the police lock-ups and Valley Gaol; and, for convicted women, there was the Valley

Gaol for minor offenders and others in transit; the Toowoomba Gaol; and the female division

at Stewart's Creek. 176 For women deemed to be of unsound mind there was also the asylum.

For the female habitual drunkard, widely considered to be one step away from becoming a

prostitute, there existed the possibility ofconfinement in the inebriate asylum at Dunwich or,

later, Peel Island. 177 Treatment for these women was scarcely different to that ofprostitutes,

as the inebriate institution came to function in similar fashion to the lock hospital or magdalen

asylum. Official opinion was clearly despairing of the possibility of reforming these women,

and it was these firmly held views which ensured that a more benign treatment regime would

174 The concept of a "system" has been borrowed from Linda Mahood, The Magdalenes: Prostitution in theNineteenth Century, Routledge, London, 1990, Pt 3. See also Barbara Littlewood and Linda Mahood,"Prostitutes, Magdalenes and Wayward Girls: Dangerous Sexualities ofWorking Class Women in VictorianScotland", Gender and History, vol. 3, no. 2, 1991, pp. 160-75. For another useful discussion, see LynetteFinch, The Classing Gaze: Sexuality, Class and Surveillance, Allen and Unwin, Sydney, 1993, pp. 96-101.

175 For a brief discussion on the latter institutions, see Lawson, Brisbane in the 1890s, pp. 145-6. Regulararticles on the operation of the Salvation Army's Rescued Sisters' Home are contained in the Brisbane editionof the War Cry. A lengthy article commemorating the opening of the new Brisbane premises at Taringa maybe found in the edition of2 January 1895.

176 In 1887, the Brisbane Courier described the Valley Gaol as an "institution for the production ofprostitutes" (28 March 1887).

177 The Queensland institutions were for both women and men. For details of the short history of inebriateinstitutions for women in Britain, see G. Hunt, J. Mellor, and 1. Tumer, "Wretched, Hatless and MiserablyClad: Women and the Inebriate Refonnatories", British Journal o/Sociology, vol. 40, no. 2,1989, pp. 244­70; and Zedner, Women, Crime and Custody, ch. 6.

Chapter 4: I'he Lnrrikin and the Dcmi-mondaine 235

not be introduced. In 1891, the Sheriff argued that "women who once abandon the paths of

virtue and give way to intemperance and its consequent train of evils are generally more

reckless than men, and seem to lose the power of controlling their downward career, but

pursue it to the bitter end". 178 His sentiments were echoed in the opinions of the medical

specialist whose duty it was to reform female inebriates. The superintendent of the Peel

Island institution did not hold much regard for the reformatory potential of any ofhis charges

but he was particularly despairing of the female inmates. 179 Most, he believed, were beyond

any cure.

The capacity of this system to manufacture habitual offenders, consigning them to a perpetual

cycle ofoffending followed by institutionalisation, should not be underestimated. In the

words of Littlewood and Mahood, "the 'prostitute' and the 'magdalene' were characters

constituted in significant part by the discourses in circulation and by the apparatuses designed

to control them". 180 Once a woman fell into this regulatory web - and the draconian

provisions of the Contagious Diseases Act ensured that this remained a distinct possibility­

she was in danger of remaining there. The system had an inherent capacity to criminalise

working class women who were, in actual fact, merely engaged in a struggle to subsist and not

likely to commit a serious criminal offence. 181 Elizabeth B, the epileptic girl mentioned

earlier, who was shuffled between institutions because there was no reformatory for girls at

the time, is a case in point. State intervention in 1877 achieved little in saving her from a life

ofprostitution. In the following year, she was admitted to the lunatic asylum, where a doctor

described her as "a wretched example ofa street-arab, she suffers from epilepsy and has

acquired all the vices likely to be met with, during a neglected childhood spent in the streets

ofBrisbane". 182 Both Elizabeth and her sister Margaret spent the majority of their lives

working as prostitutes, regularly fronting the Brisbane police court and spending time in

confinement in the various institutions for the reception of "immoral" women, chiefly the lock

178 ARS, 1891, QVP, vol. 1, 1892, p. 632.

179 G.W. Jackson, Supt, to Home Secretary, 28 July 1916, A/31745 Home Secretary's Office, Special Batches(1891-1957), Inebriates, 1910-1950 [6970].

180 Littlewood and Mahood, "Prostitutes, Magdalenes and Wayward Girls", p. 163.

181 Finnane and Garton have discussed the role of police in prosecuting and regulating the activities ofprostitutes in Queensland ("The Work of Policing II , Part 2, pp. 47-8).

182 Case of Elizabeth B, Walston Park Case Book, 1876-79, QSA A/45606, p. 125.

Chapter 4: The Larrikil1 and the Demi~m()nd(/i!1e 236

h . I' d I 183osplta , pnson an asy urn.

Where sexual purity was not at issue, the situation for female minor offenders was less

complicated, though not without some fundamental deficiencies. For the majority ofwomen

arrested for drunkenness or other good behaviour offences, the carceral experience typically

consisted ofshort periods ofconfinement in police lockups or the smaller penal institutions.

Detention in such facilities posed particular problems for offending women who, throughout

the period under analysis, remained at the mercy ofa male-dominated criminal justice system.

In 1890, for example, a deputation ofwomen led by the prominent suffragist, Leontine

Cooper, met with the Colonial Secretary, Horace Tozer, to discuss the possibility of

appointing a female warder to attend to women incarcerated in Brisbane's police cells. 184 The

party argued that most of the women were being held overnight to face drunkenness charges

the following day and spent their period ofdetention in an lIunconscious and senseless"

condition. As such, they were unable to resist any improper advances made by lockup staff or

other police constables. Following the meeting, a petition was forwarded to the Colonial

Secretary accompanied by over 1,000 signatures. 185 Tozer was sympathetic to the concerns of

the women, remarking that he had heard ofcases in which girls had alleged they had been

seduced by constables. His resolve to attend to the matter was such that the Commissioner of

Police and the Sheriffwere duly ordered to report on making the necessary alterations to the

current system.

Seymour and Townley submitted their report a few days later with the recommendation that

the request be denied and the system left unaltered. They believed it would be too expensive

to appoint a woman warder on a full-time basis and assured the Colonial Secretary that

IIWatchhousekeepers in Brisbane are married men of excellent repute; the wife of one resides

183 Cases ofElizabeth and Margaret B, Wolston Park Case Books, 1887, QSA A/45614, p. 139; and 1896­97, QSA A/45629 p. 134. For further details on the pair, see, for example, Comptroller-General to UnderSecretary, 2 June 1897, QSA PRIlA61 [1621]; and removal ofMargaret B from Brisbane Prison to GoodnaAsylum, QSA HOMIB24 1910 [4889].

184 For details ofan earlier public meeting to formulate a strategy for action, see Week, 19 July 1890. Theinsufficient number offemale staff in penal institutions was not a new problem. The report of the 1887 BoardofInquiry highlighted the apparent "superabundance" of male staff at Toowoomba Gaol (see BI, p. 725).Cooper and another Brisbane suffragist, Ellen Parsons, had been corresponding with the famous prisonreformer and advocate for women's rights, Rose Scott (see Judith A. Allen, Rose Scott: Vision and Revisionin Feminism, Oxford University Press, Melbourne, 1994, p. 156). Scott was to visit the new Brisbane Prisonin 1903 (Principal Gaoler's Journal, 21 October 1903, QSA PRI 1124, p. 758).

185 Commissioner ofPolice to Col Sec, 17 October 1890, QSA COLlA634 [10928].

ChapteT 4: The LaTrikill alld the Dcmi-Illondaine 237

in the Lockup building with him and when required performs the duty of searching female

prisoners". They also argued that a woman would be unable to cope with "violent half

drunken prisoners" and would often require the assistance of a constable. The only acceptable

reform that could be implemented was the construction of a new wing for female prisoners

and the employment of three women full-time to staff the new establishment. Their attitude

was a prime example ofthe difficulties in labouring to reform a patriarchal system which

functioned in a manner disadvantageous to women. If the remedy suggested by Cooper and

her associates was considered too expensive, then the possibility oferecting new quarters and

appointing three new employees was certainly out of the question. It was quite clear that

Seymour and Townley were, through a fabricated sense ofconcern, being obstructionist in

their approach to the complaint.

The issue again rose to prominence in 1897 when the WCTU convened a lecture by Mrs

Barney, a visiting women's rights activist who had been instrumental in the introduction of

female prison and police court matrons in America. 186 Even after a decade the situation had

not changed, despite news in 1898 of the appointment ofwomen warders to female police

cells in New South Wales. Referring to the 1890 campaign, the press urged the government

to reconsider its position and follow the lead of the southern colony.I8? Vincent Lesina also

took up the cause and, in 1900, duly raised in parliament the issue ofappointing female

searchers to the colony's lockups,I8s It would appear that sometime in the following year the

Salvation Army stepped into the breach and provided a female searcher for the City lockup. 189

A Promise of Reform

In September 1898, the government formally declared Toowoomba Prison an institution for

the detention of female prisoners only,190 As we have seen, the prison had virtually been

operating in this capacity since the 1870s, but the proclamation formalised the by now well­

accepted wisdom that separate institutions were needed for the successful reformation of

186 Brisbane Courier, 21 and 23 August 1897.

187 Progress, 3 November 1900.

188 QPD, vol. 86,17 December 1900, p. 2691.

189 Queenslander, 28 September 1901.

190 ARC-G, 1898, QVP, vol. 4, 1899, p. 124, QGG, vol. 70, no. 77, 17 September 1898, p. 720.

Chapter 4: I'he Larrikin and the Dcmi-mondaine 238

191women offenders. But there remained the persistent problem of the deteriorating condition

of the buildings at Toowoomba. Both Townley and Pennefather regularly criticised the

method of confining women in association and implored the government to erect a more

modem prison in Brisbane. In By the end of the century the appeals were beginning to have

an impact, and in 1899 steps were taken to begin work on a new establishment adjacent to the

existing Brisbane Prison. l93 In 1903 the new division was completed, with single cell

accommodation for a total ofeighty-four prisoners - many more than were needed at the time.

Indeed, if every female prisoner in the state had been transferred to Brisbane barely three

quarters of the cells would have been occupied. The first six prisoners arrived from

Toowoomba on 6 October 1903, with the remainder following after the closure of

Toowoomba Prison and the Valley Gaol. 194

Initially under the governorship ofJohn Vivian Williams, the superintendent of the adjacent

male prison, it was to remain subject to the control of a male officer for the duration ofthe

period under analysis. This was in contrast to the Female Penitentiary at Coburg, Victoria,

which was already being managed by a female governor and had a staff entirely composed of

women. 195 The willingness of the coloniallegislato~s to embrace overseas or intercolonial

penological innovations did not extend to the possibility ofplacing women in charge ofmajor

penal institutions. This attitude was in evidence during the debate over establishing a new

reformatory for girls in 1886 when the Courier asserted that a male should be placed in charge

191 There had also been the occasional problem caused by housing men in the same institutions as women(see, for example, ARS, 1888, QVP, vol. 1, 1889, p. 1182).

192 See, for example, ARS, 1889, QVP, vol. 1, 1890, p. 938; ARS, 1892, QVP, vol. 1, 1893, p. 436; andARC-G, 1896, QVP, vol. 2, 1897, p. 2.

193 ARC-G, 1899, QVP, vol. 5, 1900, p. 512. Pennefather requested information collected by the New SouthWales Government Architect on his trip to Britain which included extensive details on Aylesbury Prison forwomen (see NSW Government Architect's report "Prisons", QSA PRIlA70 [0624]).

194 Principal Gaoler's Journal, Brisbane Prison, QSA PRI 1/24, p. 754. By the end ofthe year there werethirty-three women in the prison. The movement to close the Valley gaol had gathered pace since the 1887board of inquiry. A movement to have the Valley Gaol closed had gathered pace from the late 1890s. Themotivation appeared to come more from its offensiveness to local residents than any concem for its inmates(see, for example, QPD, vol. 77, 24 September 1897, pp. 971-2; vol. 83, 17 November 1899, p. 1079; vol.79,12 October 1898, pp. 737-8; vol. 86, 17 December 1900, p. 2689; vol. 88,22 October 1901, p. 1395; andvol. 89,24 September 1902, p. 655).

195 It was towards the end of the nineteenth century that feminist reformers began to campaign for theappointment of women as superintendents ofpenal institutions (see Zedner, Women, Crime and Custody, pp.121-2).

Chapter 4: '!,heLarrikin and the Derni'lI1ondaillc 239

IlIustTation 4,1: EM Prison, Brisbane: Female Division, 1911 (ARC-G, 1911-12)

'.II"'Jl\A 4: 'CheLarrikin and the Demi·mondaine 240

Illustration 4,2: HM PIlson, Brisbane: Female Division, 1913 (ARC-G, 1914)

4: T'heLarrikin and the Dcrni--mondainc 241

Illustration 4.3: HM Prison, Blisbane: Male & Female Divisions, 1911 (ARC-G, 1911-12)

Chapter 4: The Larrikin and the Demi-mondaine 242

because "women are too much given to favouritism and to petty tyranny to be left in sole

charge of an institution requiring great firmness as well as judgement". 196 Nevertheless, the

decision to establish a modem prison for women, with a subordinate staff exclusively

comprised of female warders, should be seen as a significant departure from past practice. 197

During the late nineteenth century there occurred a transformation in emphasis from moral

explanations for female crime to biological ones. 198 There was also an accompanying shift in

the treatment prescribed for female offenders which depended upon greater individualisation

ofpenal practices. As the individual offender became the object of treatment and study, the

need for single cell accommodation became a necessity. When it was opened, the new prison

was considered to be state-of-the-art for its time. 199 With single cell accommodation for every

inmate and six separate exercise yards, the authorities were finally able to institute a complete

system ofclassification. The architecture ofthe state's main prison for women was now

consistent with modem standards ofpenal treatment for female offenders.

The new forms ofdetached, individualised treatment made possible by the design of the new

prison are exemplified in its clinical admission procedure. After her reception into the prison,

the new inmate was ushered into a stony room in which she would stand alone until a slide in

the wall opened with a pile ofprison garments folded neatly inside.zoo The slide was attached

to a storeroom within which a hidden attendant was able to dispense the clothing without

coming into contact with the prisoner. The inmate would then undress, place her own

clothing within another slide, and wash herself in a white enamelled bath. A process of

"personal defacement"ZO1 took place as the new inmate was stripped ofall her physical

196 Brisbane Courier, 20 May 1886.

197 Toowoomba Prison had only two women warders out of six subordinate staff (El, p. 725). During histime as commissioner in Western Australia Pennefather expressed his preference for separate women'sprisons (see West Australian, 10 and 12 May 1911).

198 Zedner, Women, Crime and Custody, ch. 2.

199 A few years later Mrs Asher, a visiting American evangelist, praised the new establishment: "I have seennothing like this before, either in America or any other part of the world. I am wonderfully impressed withyour methods of gradation and separation and think you are accomplishing a work which reflects beneficiallyon the women incarcerated" (Brisbane Courier, 8 July 1909. Her husband was later to inspect 8t Helena, seeBrisbane Courier, 26 July 1909).

200 The bundle included underwear, a nightdress, striped linen gown, large white apron, white starched cap,and a huckaback towel. The following description has been taken from Friday Night, 3 March 191 L

201 Goffman, Asylums, pp. 29-30.

Chapter 4: Tbe Larrikin and the Demi-mondaine 243

associations with the outside world. The process continued as the institution imposed its rules

prescribing the appropriate physical appearance of inmates. According to the 1892 rules and

regulations:

213. Female prisoners are required to wear their back hair divided from the front,and coiled up in a knot at the back of the head; the front hair to be parted downthe middle and worn off the face. The hair of a female prisoner may be cut onaccount of vermin or dirt, or when the medical officer deems it requisite on theground ofhealth.214. Female prisoners are at all times during the day to appear properly dressed;to wear the neckerchief on the neck and the jacket tied down by the apron

, 202strIngs.

After she had dressed in her prison attire, the prisoner was then led to a small cell containing

an iron bedstead and mattress, a tin washing basin and some blankets. The main source of

ventilation was a small barred window high upon the rear wall. Despite being issued with her

own basin, each inmate bathed communally in a small court near the cells. Although the

prisoners were not required to wash on a daily basis, it was compulsory to do so each Saturday

with the weekly issue ofclean garments. The admission routine and the ensuing submission

to strict regulations governing behaviour, dress and personal hygiene were primary elements

in the creation ofa compliant inmate population. The new procedure encapsulates the process

of "mortification ofself', so eloquently described by Erving Goffman, in which inmates are

stripped of all physical and psychological associations with the outside world so that the

institution may rebuild their identities through the process ofprivilege allocation.203

202 "Rules and Regulations", 1892, p. 298,

203 Goffman, Asylums, pp. 25-40.

Chapter 4: 'fheLarri.k.in and the Derni-momiainc 244

Illustration 4.4: HM Prison, Brisbane: Wing in Female Division, 1915 (ARC-G, 1915-16)

Illustration 4.5: HM Prison, Brisbane: Tailoring and Gannent-making in Female Division,1912 (ARC-G, 1913)

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Po

~Efp::;Cl..

~

(1,

\::)~

~.'"o~

K>::;s·~

N.P0­l))

4: '[be Larrikin and the Demi-lI1ondainc 246

Chapter 4: I'he Larrikin and the Demi-mondaine 247

The work regime devised for the women did little to break with the traditions of the past­

conforming to the contemporary stereotypes of what was appropriate employment for women.

The institution employed the dual strategies of industrial training and moral education. The

incessant drudgery involved in the usual occupations oflaundry work, tailoring, cooking basic

meals and sanitary work could hardly be regarded as innovative, however, and was unlikely to

improve the moral character of each prisoner.204 For women serving short sentences there

was also little chance ofdeveloping their skills to any significant degree. Adding to the

indignity of such work was the knowledge that it was the garments and bedding of the men's

prison that the women were being compelled to wash and mend. The only real effort to

reform the moral character of the inmates was through the regular ministrations conducted in

the prison chapel: a depressing and sparsely decorated building with barred windows, in

which the women sat on benches under the pervasive gaze of an image of Jesus Christ (see

illustration 4.6).205

Consistent with international trends in the incarceration of female offenders, female

admissions to Queensland's penal institutions diminished in the early decades of the twentieth

century.206 The decline was so dramatic that the total number of female admissions to the

penal system dropped from 317 in 1900 to just 59 in 1925 (see figure 4.3 for the downward

trend).207 At the end of 1903,33 women were confined in the female division ofBrisbane

Prison; at the close of 1920 it was just 12. In spite of this decline, the Comptroller-General

was unable to report that the problem of female recidivism (especially for the offence of

drunkenness) had been solved.208 These findings, along with the discouraging failure of the

inebriate asylum, seemed to confirm the impossibility of reforming habitual offenders. The

architectural and administrative innovations of the new women's prison had failed to deliver a

204 Some of the gannents made in Brisbane Prison were shirts, dresses, aprons, petticoats, night dresses andpY.iama suits. The laundry work generally consisted of washing government and prison articles (see QSAAJ19876 HM Prison, Brisbane, Summary of work perfonned in the female prison, 1905-1944).

205 Two of the pictures were donated by the Countess of Dudley after her visit to the prison in 1909 (seeTelegraph, 4 August 1909, and Brisbane Courier, 7 August 1909).

206 Lucia Zeduer, "Wayward Sisters: The Prison for Women", in Norval Morris and David 1. Rothman (eds),Oxford History ofthe Prison: The Practice ofPunishment in Western Society, Oxford University Press,Oxford, 1995, pp. 358-9. For a study that examines the decline from the seventeenth to the nineteenthcentury, see Malcolm Feeley, "The Decline ofWomen in the Criminal Process: A Comparative History",Criminal Justice History, vol. 15, 1994, pp. 235-74.

207 In 1890, the figure was 603.

208ARC-G, 1913, QPP, vol. 2,1914, p. 236; andARC-G, 1916, QPP, vol. 2,1917, p. 446.

Chapter 4: The Larrikin and the Demi-rnondaine 248

solution to the problem. The way was now clear for the authorities to return to their

traditional policy of subordinating the problems ofwomen's imprisonment to those of the

male prisoners.

Figure 4.3: Admissions to Queensland Prisons (Female), 1880-1939

800

700

600

... 500~

,Q

e 400:::Z 300

200

100

0

'b\) 'b':> 9\l,'1:> ,'b ,'0

9':> \)\l<>p':> :--,.\l :--,.':> (i,\l (i,':> :'J\l :'J':>

,'0 ,C) ,<1 ,<1 ,<1 ,<1 ,<1 ,<1

Year

I__ Female I

Source: Queensland Statistics.

When, in 1921, the penal system underwent an extensive restructuring process, the authorities

were forced to relocate the majority ofSt Helena's inmates to Brisbane Prison.209 To facilitate

this change, a wooden building adjacent to Brisbane Gaol was re-designated the women's

prison, and the small number ofwomen occupying the female division were shuffled aside to

be replaced by St Helena's 'long-timers'. The new arrangement signalled a return to the

antiquated barrack-style accommodation that had been so severely criticised when

Toowoomba Gaol was the state's main receptacle for female offenders. The decision to

transfer the women to the inferior structure highlights how the very practical problem of

providing sufficient accommodation for male prisoners set limits on the process of

individualisation for female prisoners. The gendered nature ofpenality in colonial and post­

colonial Queensland is no better demonstrated than in the persistent subordination of the

needs ofwomen offenders to those ofthe men. The changes in the penal realm that were

209 For details of the restructure, see ARC-G, 1921 ", QPP, voL 2, 1922, p. 515. See also, Observer, 29August 1921. For further discussion, see chapter eight below.

Chapter 4: l'lJe Larrikin and the Demi-mondaine 249

eventually stimulated by medical intervention in the comprehension, diagnosis and treatment

ofdeviance had little impact on the experiences of incarcerated women in Queensland prior to

World War Two. This is further evidence that the process outlined by David Garland in the

British context was to occur much later in the case of its colonial dominions.

Conclusion

The system ofreformatory treatment for colonial Queensland's offending young people

developed in a way that reflected contemporary attitudes to wayward youth. The system

began with a failure to separate criminal from neglected children, despite warnings against

this course ofaction. This would remain a feature of the Queensland system until the final

decades of the twentieth century. The successive reformatory institutions were organised

along the lines ofQueensland's penal facilities. The daily regime was highly routinised, the

accommodation barrack-style, punishment for infractions severe, and a monotonous system of

labour was utilised to reform the young offenders and defray the costs of their maintenance.

The work and punishment regimes were differentiated according to gender: agricultural work

was utilised for boys, domestic duties for girls; boys were subject to corporal punishment,

girls were not. By the tum of the century, the reformatory and industrial school system had

evolved to the point where it was further differentiated by gender and also by race. The

system for boys was based on the use ofa state-run reformatory for those convicted of

offences, and the use of denominational industrial schools for those deemed to be neglected.

Both convicted and neglected girls were confined in denominational industrial schools.

Aboriginal industrial schools were also established on some of the reserves and missions at

this time. Prior to the 1930s, the authorities failed to differentiate the system further by

establishing institutions for young men to spare them from detention in adult institutions.

In concluding his analysis ofthe colonial origins of the system for dealing with young

offenders, John Seymour questioned whether the authorities in each jurisdiction maintained a

genuine commitment to save wayward youth from a life of crime, suggesting that their

rhetoric may have amounted to !lno more than a vague and poorly articulated commitment to

'reform', an aim which could be pursued in an institutional system borrowed from

England!l.210 The evidence from Queensland appears to confirm his suggestion. Indeed, the

210 111: dSeymour, Young 0JJen ers, pp, 65-6.

Chapter 4: The Larrikil1 and the Dcmi-mo!ldainc 250

above analysis ofQueensland's reformatory system would suggest that while the rhetoric of

reform may have been vague and poorly articulated, its implementation also fell well short of

the mark. The years of administrative neglect and insufficient resources, the careless use of

licensing out, the lack of innovation in institutional treatment, the use ofdenominational

institutions to accommodate the majority of inmates, and the failure to articulate precise aims

for the rehabilitation ofconvicted children as distinct from destitute or neglected ones, all

underline the indifferent attitude of the authorities to the business ofrec1aiming young

offenders. The Queensland system was the consequence ofa preoccupation with frugality and

a lack ofsympathy for the plight ofoffending youths. The situation was scarcely different for

Queensland's adult female offenders.

The history ofwomen's imprisonment in Queensland also exhibited the characteristic signs of

administrative neglect. Throughout the nineteenth and early-twentieth centuries, the

authorities failed to implement a program of individualised treatment for female offenders, at

least until changes in criminal justice policy and administration brought about a significant

reduction in admissions to prison. Prior to this period, female offenders were herded together

in association in desperately overcrowded institutions, and were subject to only a rudimentary

system ofrehabilitative treatment. In her work on women's imprisonment in Victorian

Britain, Lucia Zedner has clearly demonstrated how "penal policy was differentiated by

sex" ?11 Queensland was no different to Britain in that it developed an alternative penality for

women offenders that was characterised by an extensive network ofcontrol agencies, different

disciplinary arrangements in prison, different rules for the appearance and behaviour of

inmates, and by different institutional work practices. In Queensland, however, the most

striking evidence for this gender-based differentiation was that the conditions for the

confinement and treatment ofwomen offenders were consistently worse than for the men, and

that the perceived needs ofthe male prisoners took precedence over the needs ofwomen.

211 Zedner, Women, Crime and Custody, p. 99.

Chapter 5: Seclusion or Spectacle? 251

Chapter 5

Seclusion or Spectacle? Civilising Physical Punishment

Ever since the publication ofFoucault's iconoclastic work, Discipline and Punish, students of

the history ofpunishment in western society have been compelled to regard the gradual

privatisation ofpenal sanctions as a central feature ofmodernity and, consequently, many

have been inclined to analyse the phenomenon in increasing detail. 1 The resulting scholarship

has been enriched by a number ofcompeting explanations for this transition, and a

longstanding debate has ensued. Yet there has been scant attention paid to the subject in a

colonial context. This chapter is an attempt to redress this omission. What follows, therefore,

is not a comprehensive analysis of the history ofphysical punishments in Queensland. Rather,

it is an examination ofan important aspect of that history - the decline in use and gradual

privatisation ofboth corporal and capital punishment throughout the second half of the

nineteenth century and into the twentieth.

As has already been discussed, many scholars have disagreed with Foucault's periodisation

(along with some of the intricacies ofhis argument) but few would dispute the evidence ofa

general trend away from the spectacle of suffering towards the concealment ofpunishment

from public view. Recently, however, there has been a conspicuous trend among historians

and sociologists interested in the demise ofpublic punishment to de-emphasise what David

Garland has described as Foucault's "power perspective",2 in which the symbolic act of

execution is interpreted as having fulfilled a decisive political function in reasserting the

1 See Michel Foucault, Discipline and Punish: The Birth ofthe Prison, Penguin, Harmondsworth, 1991. Forscholars who have dealt specifically with the end ofpublic executions see especially Randall McGowen,"Civilizing Punishment: The End of the Public Execution in England", Journal ofBritish Studies, vol. 33, no.3, 1994, pp. 257-82; David D. Cooper, The Lesson ofthe Scaffold: The Public Execution Controversy inVictorian England, Ohio University Press, Athens, Ohio, 1974, and his article "Public Executions inVictorian England: A Reform Adrift", in William B. Thesing (ed), Executions and the British Experiencefrom the 17th to the 20th Century: A Collection ofEssays, McFarland & Company, Jefferson, 1990, pp. 149­M; Louis P. Masur, Rites ofExecution: Capital Punishment and the Transformation ofAmerican Culture,1776-1865, Oxford University Press, Oxford, 1989; Harry Potter, Hanging in Judgement: Religion and theDeath Penalty in Englandfrom the Bloody Code to Abolition, SCM Press, London, 1993, esp. chap. 7; andLeon Radzinowicz, A History ofEnglish Criminal Law and its Administration from 1750, vol. 4, Stevens,London, 1968, pp. 343-53. Richard J. Evans has recently argued that the decision to abolish publicexecutions in each of the German states during the mid-nineteenth century was intimately bound up withbourgeois attempts to establish control over the public sphere, see Rituals ofRetribution: Capital Punishmentin Germany 1600-1987, Oxford University Press, Oxford, 1996, pp. 305-17 and "Justice Seen, Justice Done?Abolishing Public Executions in 19th-Century Germany", History Today, vol. 46, no. 4, 1996, pp. 20-5.

2 Garland, Punishment and Modern Society, p. 131.

Chapter 5: Seclusion or Spectacle? 252

power ofsovereign over subject until its dramatic replacement in the late eighteenth and early

nineteenth centuries by the new technology ofpower - the prison. Influenced by the ideas of

Norbert Elias, primarily his concept of the "civilizing process", there is now a tendency to pay

greater attention to the role ofcultural factors in determining the movement away from public

punishments.3 His concern for the influence ofpsychological sensibilities on the process of

historical change has created new possibilities for scholars involved in the study of

punishment. Yet this innovative approach has scarcely been tested in a colonial context with

regards to the history ofpunishment. Although one must be cautious in applying a theory that

was developed to explain a specific historical circumstance to another quite distinct situation,

it remains to be seen how applicable Elias's theory is to areas other than western Europe.4

Indeed, for any analysis of the European "civilizing process" to be complete it would seem

logical that the colonial settler states that comprised its margins should be taken into account.

The evidence from Queensland would suggest that it is inadequate simply to exclude

Foucault's ideas from any explanation of this shift in the history ofcapital punishment.s

Rather than simply underlining the dominance ofcultural conditions external to the exercise

of the power to punish, here the transition from public to private punishment reflected a

confluence ofboth cultural and politico-economic forces in determining the state's

implementation of severe penalties. While there was a desire evident on the part ofa section

of the population which deplored the barbarity of violent public punishment, and its attendant

effect upon a certain class ofcitizen, there was also a perceived need to maintain the didactic

function ofphysical punishment in particular cases.

Initially, it was the powerful influence of racial conflict that was to frustrate this attempt at

3 See especially Masur, Rites ofExecution; Spierenburg, Spectacle ofSuffering; and Garland, Punishmentand Modern Society, esp. chaps 9 and 10. VAG Gatrell, The Hanging Tree: Execution and the EnglishPeople, 1770-1868, Oxford University Press, Oxford, 1994, pp. 12-14 and 17; and Greg T. Smith, "CivilizedPeople Don't Want to See That Sort ofThing: The Decline ofPhysical Punishment in London, 1760-1840",in Strange (ed.), Qualities ofMercy, pp. 21-51, have also recognised the value of Elias' contribution. RichardEvans, however, is much more sceptical about the utility of Elias' theory, see Rituals ofRetribution, esp. pp.12-18 and 891-9.

4 For a study that utilises an Eliasian framework and takes in a number ofcolonial jurisdictions, see Pratt,"Civilization and Punishment", pp. 183-201.

5 Nor should the important work of Douglas Hay be forgotten (Ignatieff, "State, Civil Society and TotalInstitutions", pp. 85-6). See his discussion of the "majesty" of the law in "Property, Authority and theCriminal Law", pp. 26-31. In this chapter, Hay draws attention to the crucial ideological role played byjudicial spectacle in cohering the relationship between law, property and power.

Chapter 5: Seclusion or Spectacle? 253

improving the method ofjudicial killing, as tension immediately developed between the

"civilizing process" and the process ofcivilising what were regarded as savage racial groupS.6

But there were also other instances in which political priorities influenced the use ofphysical

punishment in colonial Queensland. In the late 1870s, it became clear that an entirely private

execution procedure would not satisfy public demands for adequate safeguards in judicial

procedure. A sufficient degree oftransparency was considered just as important in the

performance ofexecutions as it was in courtroom proceedings. The need for a stern response

to non-indigenous problem populations, exposed during periods ofmoral panic, was also to

stimulate an alteration in the use ofcorporal punishment in the colony. In particular, the

widespread perception of a proliferation of violent crimes perpetrated by juvenile delinquents

led to a more determined use of the punishment of flogging. These incidents were significant

exceptions to the general trend away from the public and brutal infliction ofphysical

punishment by the colonial state, illustrating the contested nature ofcolonial penality.

Race and the Transition from Public to Private Executions

In the decade prior to separation from New South Wales there were 17 sentences ofdeath

passed and eight carried out.7 As in Britain, criticism ofthe public execution had resonated

throughout the community during this period to the point where the New South Wales

Legislature discussed the possibility ofdispensing with the public spectacle, even before the

mother country legislated to this effect.8 Doubts existed as to the efficacy of such punishment

with the editor of the Sydney Morning Herald arguing that public executions were

"brutalizing...and, in as far as example is concerned, it may be doubted whether the terror they

6 For a more general analysis of this aspect of the history of capital punishment in Australia, see my article"Judicial Violence and the 'Civilizing Process"'.

7 Connors, "The 'Birth of the Prison' and the Death ofConvictism", p. 105. Of those executed there were fourAborigines, three Europeans and one Asian. There were at least another two Aborigines executed before thisperiod, see Connors, "The theatre ofjustice", pp. 49-50. It should be noted that there was some opposition tothe introduction ofprivate executions (see Moreton Bay Courier, 30 July 1853).

8 For example, see Sydney Morning Herald, 12 July 1853. Public execution was eventually abolished inBritain in 1868. For discussions see Cooper, The Lesson ofthe Scaffold; Gatrell, The Hanging Tree, pp. 29­105 and 589-611; Thomas W. Laqueur, "Crowds, Carnival and the State in English Executions, 1604-1868",in A.L. Beier, David Cannadine and James M. Rosenheim (eds), The First Modern Society: Essays inEnglish History in Honour ofLawrence Stone, Cambridge University Press, Cambridge, 1989, pp. 305-55;McGowen, "Civilizing Punishment"; and Radzinowicz, A History ofEnglish Criminal Law and itsAdministrationfrom 1750, vol. 4, pp. 343-53.

Chapter 5: Seclusion or Spectacle? 254

are intended to inflict is equal in force to the disgust or the pity they generate".9 Despite these

progressive concerns, in 1854 the "halfcivilised black" Davy was publicly executed at

Moreton Bay in the presence of an unspecified number of spectators, including" ...to the

shame and disgrace of the town, a very large number ofwomen and children". 10 The Courier

lamented the number of murders ofwhite settlers at the hands of Aborigines which went

unpunished, prompting the popular opinion that the sentence of death was perceived by the

indigenous offenders "".as a mere bugbear and a farce".I! In the following year the famous

Aboriginal leader, Dundalli, was executed in the presence of spectators, including a group of

Aborigines standing atop Windmill Hill. The spectacle began with the condemned struggling

and wailing, and shouting appeals from the scaffold to the assembled Aborigines. His

protestations aroused intimidating yells from the Aborigines which inverted the proceedings

and precipitated a threatening situation in which violence seemed immanent. 12 The event

climaxed in a bungled drop in which the prisoner's feet managed to touch the coffin below the

scaffold. "A turnkey quickly drew away the coffin, but still the feet of the hanging man

touched the ground, and the spectators were shocked by the sight of [the executioner] lifting

up the legs of the malefactor, and tying them backwards towards his pinioned arms" .13 A few

days later, on 11 March 1855, the public execution "",as officially abolished in NSW.!4

Consistent with the new legislation, the European ex-convict Teagle was executed privately

within the precincts ofBrisbane Gaol in 1857 and the abolitionist Moreton Bay Free Press

contended that "the adoption ofthe private mode in these colonies was a step in the right

direction. Practised with success in America, there could be no possible reason why the plan

should not be carried out in Australia, and the colonies have stolen a march on the mother­

country by adopting it". The editor also commended the shift towards a mode ofpunishment

where "the ends ofjustice are fully met - the 'law is satisfied'; public indignation is appeased;

9 Sydney Morning Herald, 12 July 1853.

10 Moreton Bay Courier, 26 August 1854. Lincoln wrongly asserts that public executions had never takenplace in Queensland (see The Punishment ofCrime, p. 40).

11 Moreton Bay Courier, 26 August 1854.

12 See Connors, "The theatre ofjustice", pp. 54-5 for an insightful assessment of the events surroundingDundalli's execution.

13 Moreton Bay Courier, 6 January 1855.

14 On the abolition of public executions in New South Wales and the Australasian colonies in general, seeMcGuire, "Judicial Violence and the 'Civilizing Process"', esp. pp. 191-5.

Chapter 5: Seclusion or Spectacle? 255

and the murderer suffers all the pangs which his dying victim may have suffered before

him".ls However, rather than signifying a total break in the manner of inflicting capital

punishment, Teagle's hanging was indicative of a transformation in attitudes towards the

penalty only in cases of European offenders.

Once again, in 1859, Moreton Bay was to witness a public execution of sorts - one in which

the authorities were to stage a pedagogic exhibition aimed squarely at the Aboriginal

population. Instead ofconcealing the "machine ofdeath" from public view during the

execution ofDick and Chamery, both convicted ofrape, it was decided to remove the black

cloak surrounding the scaffold so that some thirty or forty Aborigines assembled on Windmill

Hill could survey the proceedings. 16 It had been suggested in Sydney that the execution

should be transformed into a lesson for the indigenous spectators and the authorities adopted

the advice with such calculated enthusiasm that another three Aborigines were coaxed into the

gaol precincts, two Aboriginal prisoners were forced to watch and assist in placing the bodies

in their coffins and a number ofnative police were marched in to view the lifeless bodies as

they swung from the gibbet. 17 Apparently the Aboriginal witnesses fully comprehended the

occurrence and were consoled by the assurance that white men who had committed the same

offence would have suffered an identical fate. IS The need to set an example to the Aboriginal

population clearly had transcended any desire on the part of the government to reform its

method for executing offenders in the colony. The authorities had neglected to amend the

existing law, however, making the procedure used in the case ofDick and Chamery illegal.

In the financially insecure colony, the elaborate European rituals involved in the punishment

ofcapital offenders were considered by some as an unnecessary indulgence when applied to

Aborigines. Late in 1861, when it was decided to execute an Aborigine named George in

Brisbane Gaol, the Courier vented its dissatisfaction with the application ofBritish justice to

Aborigines by questioning the sense in punishing "a being to whom the proceedings were

15 Moreton Bay Free Press, 29 July 1857. See also Moreton Bay Courier, 1August 1857, for editorialcomment on Teagle's execution, and also Prisons Department, Letterbook of the Sheriff, 29 July 1857, QSAPRIlG62.

16 Moreton Bay Courier, 6 August 1859.

17 Moreton Bay Courier, 6 August 1859. See also the account in Prisons Department, Letterbook of theSheriff,S August 1859, QSA PRIlG62. Approximately another thirty people were also present.

18 A fact not supported by the historical analyses of rape in colonial Queensland. See Barber, "Rape as aCapital Offence", pp. 35-6, and Harris, "The Terror of the Law", pp. 22-48.

Chapter 5: Seclusion or Spectacle? 256

unintelligible, and for whose conviction the country will have to pay something like £200 11•19

Quick to emphasise that the newspaper did not entertain lIa morbid sympathy for the blacks ll,

the editor argued that

To recommend that the ringleaders of their marauding parties should be takeninto custody, brought down the country, perhaps 300 or 400 miles, by the squatterto the nearest police court - and that they should go through all the formula ofapreliminary investigation and subsequent trial - and finally kneel down at the footof the scaffold with a clergyman beside them preparatory to being Illegallymurderedll themselves - is the height of absurdity.20

The solution was initially lito show them the true character of their position as a people who

have found their masters by keeping them at a distance until they shall have learnt enough of

the whites to fear to harm them", then, if they transgressed the predetermined boundaries, IIlet

the consequences to them be ofsuch a character as shall lead them to fear their civilised

superiors II - in other words, summarily execute offenders on the spot, or, to quote the popular

contemporary euphemism, "disperse" them.21 These harsh suggestions were partly in

response to the perceived absurdity of the execution ofGeorge but were also a reaction to the

philanthropic efforts at establishing missions to the Aborigines. It was clear to the Courier

that only violence could instruct them in the ways ofcivilisation and that, when faced by an

aggressive body ofAborigines, the advocates ofthe IImoral suasion" principle IIwould much

rather prefer a good revolver to a whole dray load of testaments printed in the Kamilaroi

dialect".22 While these suggestions were not officially sanctioned, they were usually tolerated

by a government still to establish its monopoly of violence in the colony.

These early executions ofAborigines demonstrated an attempt to transplant the 'rule oflaw'

into their communities and also served to fortify its hegemonic influence over the European

settler population.23 They were carried out at a time when frontier violence between

pastoralists and Aborigines was reaching its peak in Queensland and represented an early

exertion on the part of the state to secure a monopoly over the use of force in the protection of

19 Courier, 6 December 1861. See also Evans et aI., Race Relations in Colonial Queensland, pp. 71-2, for adiscussion ofGeorge's case and European attitudes towards Aboriginal rapists.

20 Courier, 6 December 1861.

21 Courier, 6 December 1861.

22 Courier, 6 December 1861.

23 See Connors, "The theatre ofjustice", pp. 48-57 for a similar argument.

Chapter 5: Seclusion or Spectacle? 257

European persons and property.24 While wholesale massacres may have been considered a

necessary expedient in the short term, settlers had to be prevented from usurping the due

process of the law as the method for dealing with conflict in colonial society. It was an

imperative of the process ofintemal pacification that both the colonised and the colonisers

should be shown the appropriate penalty for severe crime and dissuaded from taking matters

into their own hands.25 The maintenance ofa native police force was another conspicuous

measure designed to subdue the indigenous population but it differed from execution in that

its actions were to be kept secret from the general population.26 In this early period of

settlement, the execution constituted little more than a veneer of state control, while the

activities of the native police and settlers in the more remote districts maintained a continuing

undercurrent of violence beneath this formal display of the state's power to punish.

Race and the Limitations of the Semi-Public Execution

Throughout this period execution proceedings were all enveloped in a highly formalised and

ritualistic dramaturgy. Typically, an execution began with the attendance ofa clergyman at

the cell of the condemned to offer spiritual counsel up to the final moments - even in cases of

non-christians.27 Occasionally cajoling prisoners into a semi-mesmeric state of verbal prayer,

24 For works dealing with frontier violence in Queensland, see Bruce Breslin, Exterminate with Pride:Aboriginal-European Relations in the Townsville-Bowen Region to 1869, Department of History andPolitics, James Cook University, Townsville, 1992; Evans et al., Race Relations in Colonial Queensland, pp.1-145; Glen Lewis, "Violence in Australian History: The Queensland Experience", Meanjin Quarterly, voL33, no. 3, 1974, p. 314; Noel Loos, Invasion and Resistance: Aboriginal-European Relations on the NorthQueensland Frontier 1861-1897, Australian National University Press, Canberra, 1982; R.H.W. Reece,Aborigines and Colonists: Aborigines and Colonial Society in New South Wales in the 1830s and 1840s,Sydney University Press, Sydney, 1974; Henry Reynolds, "Violence, the Aboriginals, and the AustralianHistorian", Mea/yin Quarterly, vol. 31, no. 4, 1972, pp. 471-7; Henry Reynolds, The Other Side oftheFrontier: Aboriginal Resistance to the European Invasion ofAustralia, Penguin, Melbourne, 1982; HenryReynolds, Frontier: Aborigines, Settlers and Land, Allen & Unwin, Sydney, 1987; C.D. Rowley, TheDestruction ofAboriginal Society, Penguin, Halmondsworth, 1974.

25 On this point, see Anthony Giddens' discussion of the decline ofpublic punishments as a defIningcharacteristic of the process ofintemal pacifIcation in The Nation-State and Violence, pp. 187-9.

26 On the native police, see Evans et al., Race Relations in Colonial Queensland, pp. 55-66; Reynolds, Withthe White People, pp. 41-84; Rosser, Up Rode the Troopers; Skinner, Police ofthe Pastoral Frontier.

27 During executions of Chinese offIcials from the Joss-house and a Chinese priest would usually attend (seeBrisbane Courier, 13 December 1881 and 22 June 1886). The provision of religious ministrations to thecondemned reached extremes following the execution of Ah Sue in 1880 when the Catholic and Protestantclergy became embroiled in a dispute over the remains of the prisoner. Sectarian jealousies surfaced as eachclaimed to have converted Ah Sue before his death and demanded his corpse for interment in their respectiveburial grounds (see Brisbane Courier, 28 June 1880).

Chapter 5: Seclusion or Spectacle? 258

the clergy performed the dual task ofbenevolently displaying concern for the spiritual welfare

of the condemned while at the same time helping to deliver up a penitent and docile body for

the ensuing display. The appearance ofa stoic and penitent condemned assisted in softening

the barbarous act of execution to something more benign and just.

The ritual itself commenced with the arrival of the Sheriff at the condemned's cell, whereupon

his irons were struck off, he was immediately pinioned by the executioner and then led in

procession to the scaffold. The procession was usually accompanied by a tolling of the prison

bell and the hoisting ofa black flag. 28 The prisoner's final march ended upon arrival at the

foot of the gallows. At this point he shook hands with the executioner or superintendent of

the gaol and was expected to ascend the stairs unaided and in as decorous a manner as

'bl 29pOSSI e.

The preferred mode ofexecution in Queensland was hanging by the neck until life was

extinct. It was upon the scaffold that the condemned was initially masked with a white hood

and the bolt then drawn, plunging him or her to their death.3o The body was left to hang for a

time specified by the Sheriff- anything from 5 to 30 ~inutes. 31 It was then lowered into a

coffin and subjected to a post-mortem examination by a medical practitioner whose

responsibility was to pronounce upon the swiftness ofdeath, thereby reinforcing the sterility

of the procedure. The place selected for burial often varied, with bodies usually being interred

in unconsecrated ground within local cemeteries.32

28 The practice ofbell tolling and flag flying appeared to have been stopped by order of the ColonialSecretary on 5 May 1880 (see Under Col Sec to Sheriff, 5 May 1880, QSA PRIlA16 [0497] and Col Sec,Western Australia, to Col Sec, 7 Apri11887, QSA COL/A498 [3279]). The Evening Observer (13November 1888), however, drew attention to the use of the bell in the case ofa double execution in 1888,suggesting that it may have continued on occasions after 1880.

29 Situations in which the condemned had to be forced to the gallows were to be avoided at all costs. In 1862the Chinese prisoner Tommy had to be carried up the steps where he refused to stand, forcing the executionerto place the noose around his neck as he lay prostrate on the apparatus (see the Courier, 3 April 1862). Thesame circumstances accompanied the execution of the Islander Jinnny in 1882 (see Maryborough Chronicle,6 June 1882).

30 When the Malayan muslim, Sedin, was executed in 1888 he successfully demanded to be allowed to wearhis turban over the hood (Brisbane Courier, 13 November 1888).

31 During the execution ofWong Tong in 1886 the body was left to hang for 15 minutes longer than the usualfive, after the gaoler had heard stories from America that men had still been alive after five minutes. SeePrincipal Gaoler's Journal, QSA PRI 1/24, p. 238.

32 Occasionally prisoners were buried within the prison grounds. For example see the cases of the AborigineBismark (Brisbane Courier, 20 Apri11900) and Millewski (Brisbane Courier, 17 December 1907).

Chapter 5: Seclusion or Spectacle? 259

The authorities were well aware that a hostile crowd could easily appropriate the intended

meaning of an execution by inverting proceedings into a celebration of the condemned and a

disdain for the authority of the state?3 A decision on the part of the condemned to die 'game',

with overt challenges to the forces that had pronounced upon his fate, was the most common

spark for a boisterous and rowdy crowd. It was in this milieu that the semi-public execution

was practiced with a variable number ofonlookers, rarely numbering more than sixty, allowed

to witness the display.34 The assembled spectators included the prison officials, the clergy,

the Sheriff, members of the public, along with a small number ofwitnesses who were

procured to confirm the event had actually taken place. In cases where the condemned was

not European, this latter category included representatives of the prisoner's ethnic community.

The intention of the authorities was to ensure that the message ofthe execution was to be

unambiguously conveyed to this particular fraction of the population. For example, when the

Aborigine Dugald, convicted of rape, was transferred to Brisbane for execution in 1872 it was

suggested that he be hanged outside the police court so that the local Aborigines could receive

a moral lesson when they appeared for the regular distribution ofblankets.35 The proposal

was not carried out, but as an alternative measure about twenty Aboriginal prisoners were

conveyed from St Helena to Brisbane Gaol to witness the scene.36

The technique of forcing witnesses to attend the execution reached its apotheosis in the events

surrounding the punishment of two Islanders convicted of rape in 1876.37 Tommy and

33 See, for example, Gatrell, The Hanging Tree, pp. 29-105; Laqueur, "Crowds, Camival and the State", pp.305-55; and Peter Linebaugh, "The Tybum Riot against the Surgeons", in Hay, et al. (eds), Albion's FatalTree, pp. 65-117.

34 Until the 1870s these people were admitted by tickets distributed at the gate of the gaol with their numberbeing predetermined by the Sheriff on each occasion. In 1864 approximately 50 people gained admission toToowoomba Gaol for the execution ofRitchie while a large crowd gathered outside with some peopleutilising elevated positions to gain a glimpse of the drop (Brisbane Courier, 2 and 6 August 1864). At theexecution of Brown in 1870, 100 people assembled outside the Toowoomba Gaol hoping to gain admission,but only 25-30 were allowed admittance (Toowoomba Chronicle and Queensland Advertiser, 31 August1870).

35 Maryborough Chronicle, 30 May 1872.

36 Brisbane Courier, 29 May 1872. For another example see the execution of George in Rockhampton(Rockhampton Bulletin, 16 May 1871).

37 Other examples of Islanders being forced to witness the executions of their countrymen may be found inthe cases of Alick (see Brisbane Courier, 30 December 1874) and Eroora (see Brisbane Courier, 24December 1878).

Chapter 5: Seclusion or Spectacle? 260

George committed an offence that horrified the sugar manufacturing community of

Maryborough, when they allegedly raped and violently assaulted a woman living with her

husband and children on the outskirts of the town.38 After being tried and convicted amid a

frenzy ofanti-Islander hysteria, which happened to coincide with the debate in parliament

over the Second Polynesian Island Labourer Bill, the two men were sent to Brisbane for a

second hearing in the Supreme Court. Appeals on their behalfwere unsuccessful and it was

decided that they would hang on 18 May 1877. The decision to execute set in train a series of

dramatic events beginning with the Brisbane Courier's call for the government "to make the

execution of their sentence, not a matter ofpunishment to them merely, but also a warning to

their fellows".39 The Courier contended that the other labourers employed on the plantations

would have assumed that Tommy and George had not been killed but had escaped or returned

to their islands and suggested that the prisoners be transported back to Maryborough where

they could be executed in view offlas many ofthe islanders as can be mustered in from the

plantations".4o The article continued:

Weare entirely opposed to public executions as a rule, and rather incline to theopinion that they do not serve to deter the European races from crime; but wethink there is reason to believe that with these islanders an exhibition of ourpower to avenge outrages of the kind referred to, and the demonstration that wedo so avenge them, might do much good, and could not possibly do any harm.41

The Executive concurred, and the condemned prisoners were duly transferred north. The

Courier's Maryborough correspondent, however, was not as enthusiastic as his employer,

sarcastically commenting that "the authorities in Brisbane had the forethought to send up a

gallows, so now we may be considered civilised".42 Maryborough lockup was hurriedly

proclaimed a gaol so that the execution could take place and further preparations were

made.43 In the meantime, the colonial secretary received a letter from Alfred Davidson,

38 For details of the trial, see Maryborough Chronicle, 21-24 April and 8 May 1877, and Brisbane Courier, 2May 1877. There is also a brief discussion of the incident in Patricia M. Mercer, An Analysis ofRacialAttitudes Towards Melanesians Expressed in the Queensland Legislative Assembly and Newspapers, 1877­92, BA Hons thesis, James Cook University ofNorth Queensland, 1972, pp. 34-41.

39 Brisbane Courier, 8 May 1877.

40 Brisbane Courier, 8 May 1877. The attorney-general was to claim later that it was his idea to have themen executed in Maryborough (see QPD, vol. 23, 17 May 1877, p. 37).

41 Brisbane Courier, 8 May 1877.

42 Brisbane Courier, 19 May 1877. See also Maryborough Chronicle, 15 May 1877.

43 See Minutes of the Executive Council, vol. 19, 1877, pp. 283-84, QSA EXEID43 for the decision to

Chapter 5: Seclusion or Spectacle? 261

correspondent of the Aborigines Protection Society, appealing against the use ofa public

execution as it would not be perceived by the islanders as a deterrent but as a show of

power.44 The government remained determined, however, and its intention "to heighten the

desired deterrent effect of the horrid scene by 'improving the occasion' to the largest number

of ravishers and murderers in posse that could be gathered together" was promoted by the

accumulation of as many of the labourers from the surrounding plantations as could be spared

to witness the affair. 45 Ultimately, however, the authorities acceded either to Davidson's

exhortations or simply to a fear that a rescue attempt would be made, and the execution was

conducted behind the recently black-draped gaol walls to afford a degree ofprivacy.46 This

was in spite of the fact that the town's contingent ofpolice had been doubled to approximately

thirty.47 Eventually six labourers representing different islands were admitted to witness the

execution, while a large 9rowd assembled outside the gaol, some utilising elevated vantage

points to obtain a view.48 One of the prisoners had been driven to the point ofmadness as he

marched towards the gallows and, in a final irony, several local Aborigines were employed to

drag him to the noose.49

The events surrounding the execution ofTommy and George demonstrated the willingness of

the colonial government to modulate the procedure ofcapital punishment in circumstances

involving non-European ethnic groups. This departure from convention engendered two

distinct discourses of retribution - one aggressive, the other defensive. The overt intent of the

exhibition was to intimidate the Islander population. Motivated by the widely held impression

that "there was an ineradicable evil connected with the presence ofan inferior and

comparatively savage race in the midst ofa superior and civilised population", the authorities

conduct the execution at Maryborough.

44 A. Davidson to Col Sec, 14 May 1877, QSA COLlA238 [2815].

45 Maryborough Chronicle, 19 May 1877.

46 Two historians have incorrectly cited the execution as a public one: Kay Saunders in Race Relations inColonial Queensland, pp. 215-16, and Harris, "The Terror of the Law", p. 41.

47 In 1881, there were only fifteen police stationed in Maryborough. See "Report of the Commissioner ofPolice for the Year 1881 ", QVP, vol. 1, 1882, p. 420.

48 Maryborough Chronicle, 19 May 1877.

49 These Aborigines may have been native police selected from the thirty strong contingent of localconstabulary.

Chapter 5: Seclusion or Spectacle? 262

were in favour of employing harsh methods to ensure their submission.50 For the exploitation

of the Islanders' labour power to proceed successfully, there had to be an understanding on the

part of the indentured labour force that British law was not to be defied. While the public

execution offended the sensibilities of those who regarded violence as uncivilised, it was also

seen as an essential weapon in maintaining the compliance of "untutored savages" with the

conventions ofcivilisation. The decision to alter the mode of execution can also be

interpreted as a method for providing an outlet for public feelings ofoutrage and contempt

that could otherwise have become manifest in acts ofaggression similar to the lynchings of

Chinese seen on Queensland's goldfields or in the frontier massacres of troublesome

Aborigines. The decision to advertise the sentence to as many ofthe Islanders as possible was

intended to assure the European settlers that the indentured labourers were not immune from

British law, and also that the state responded swiftly and surely to deter and punish any

criminal behaviour. In this way the use ofa liberal measure ofviolence comprised a discourse

of social defence, which was designed to buttress civilisation against those beyond its

confines.

Rather than exorcising a social evil, the employment ofcapital punishment as a penalty in

such situations inevitably assisted in dramatising any threat to the community. Consequently,

an unintended corollary of imposing this deterrent measure in the case of the non-European

offender was a substantial contribution towards the criminalisation ofhis ethnic group en

masse.51 Between the date ofarrest ofTommy and George and their execution six months

later, many of the anti-Islander articles in the press and derisory comments in parliament were

articulated in terms of the outrages these "savages" were capable ofperpetrating.52 The

sensational response to the rape on the part ofthe authorities inflamed rather than dampened

public fears about the employment ofIslander labour and assisted in creating an image of the

Islander as a popular 'folk devil'. This process of deviance amplification was repeatedly

50 QPD, vol. 23,17 May 1877, p. 39.

5\ For material on the treatment ofIs1anders in the criminal justice system in the 1890s see Mark Finnane andClive Moore, "Kanaka Slaves or Willing Workers? Melanesian Workers and the Queensland CriminalJustice System in the 1890s", Criminal Justice History, vol. 13, 1992, pp. 141-60. See also Clive Moore,'''Me Blind Drunk': Alcohol and Melanesians in the Mackay District, Queensland, 1867-1907", ANZAASCongress: Papers, no. 57, 1987, paper 4981H, pp. 1-27.

52 The Brisbane Courier, the Maryborough Chronicle, the Bundaberg Star, the Bundaberg and Mount PerryMail, and the Mackay Mercury were all examined between November 1876 and August 1877. Scarcely anissue was published which did not mention the criminal behaviour of the Islander population and their'propensity' for committing serious outrages.

Chapter 5: Scdusjon or Spectacle? 263

stimulated by the discriminatory treatment of the Islander population within the colonial

criminal justice system, with the act ofexecution comprising an exceptional moment in which

racial prejudice became most acute.

In stark contrast to the Maryborough execution, the European offender John Wenzel had

suffered the death penalty in Brisbane Gaol during the previous year with a minimum of fuss

and with few spectators, and the occasion ofJames Cunningham's execution in 1878 produced

similar restraint,53 Perhaps it was the nature of the offence committed by the two Islanders, in

combination with their ethnicity, that motivated the sensational events in Maryborough. By

the 1880s, the image of Islanders as rapists ofwhite women had become a common element

in racial caricatures? This particular theme had already featured in the stereotyping of

Aborigines during the preceding few decades, when frontier conflict was at its most intense

and, as Aboriginal-settler relations gradually increased in complexity, the perpetual colonial

fear ofmiscegenation was becoming more frequently expressed.55 Such powerful images

contributed towards the conspicuous imbalance in the number ofnon-Europeans executed in

Queensland where, between 1850 and 1913, over ninety percent ofoffenders executed for

rape were either Aborigines or Islanders.56

The attempt to mould capital punishment into an efficient heuristic device for the Islander

population did not end with the death ofTommy and George, but was to become a feature of

Islander executions well into the period inwhich the execution process was gradually

becoming closed off from public scrutiny. When the two Bundaberg murderers Miore and

Narasemai were executed within Brisbane Gaol in 1895 virtually no public interest was

raised.57 However, when the two men left the condemned cells and marched to the execution

53 Brisbane Courier, 30 August 1876 and 15 January 1878. Both men were executed for the crime ofmurder.

54 On this issue, see Kay Saunders' discussion in Race Relations in Colonial Queensland, pp. 211,213,215­17.

55 See Evans, et al., Race Relations in Colonial Queensland, pp. 71-3. On miscegenation see Evans, et al.,Race Relations in Colonial Queensland, pp. 108-9,357-8,363, and Harris, "The Terror of the Law", pp. 23­4. Harris has also concluded that "the rape of a white woman by a black man was regarded by the dominantideology ofQueensland colonial society as an assault on the supremacy of the white race for whichretribution had to be exacted swiftly and surely" (see Harris, "The Terror of the Law", p. 44).

56 12 Aborigines, 3 Islanders and 1 European suffered the extreme penalty of the law for the crime of rape(see Barber, "Rape as a Capital Offence", pp. 35-6).

57 Brisbane Courier, 21 May 1895.

Chapter 5: Seclusion or Spectacle? 264

chamber they encountered, not more Europeans representing white officialdom, but 14 of

their countrymen arranged in a line two deep in front of the apparatus. The men had been

transported to Brisbane from the Mackay, Bundaberg, Childers and Maryborough districts to

participate in the didactic exhibition and convey details of the lesson to their fellow labourers

on the plantations. Far from exhibiting an approving demeanour, however, the Islanders

reacted to every ritual movement "with extreme anxiety and horror".58 Two months later the

spectacle was repeated at the execution ofSayer when a bus load ofIslanders were

transported to Brisbane Gaol for the event. Once again the stated intention on the part of the

authorities was to give them "a practical lesson in the justice which the law metes out to

murderers".59 This unconventional adjustment in the 'theatre ofjustice' again highlighted the

existence ofparticular punitive practices for the disciplining ofnon-European racial groups.60

By the turn of the century, however, the practice had been dispensed with and the Islander

execution procedure began to conform with that of Europeans. Nevertheless, it was during

this period that the over-representation ofIslanders in the execution statistics was at its

starkest. Table 5.1 illustrates that between 1898 and 1908 10 Islander offenders were

sentenced to death, with the relatively excessive figure of five ultimately reaching the gallows.

Table 5.1: Racial Origins of Offenders Sentenced to Death and Executed in Queensland,1898-1908

Race Sentenced To Death Executed

European* 27 6

Aboriginal 15 1

Islander 10 5

Indian 2 1

Chinese 1 1

Total 55 14

* Includes one female.Source: C-G to Supt, Brisbane Prison, 17 June 1909, QSA PRI/14 [0458].

58 Brisbane Courier, 21 May 1895.

59 Brisbane Courier, 23 July 1895.

60 In parliament, it was suggested that white traders would suffer if time-expired Islanders chose to imitatethis feature ofEuropean civilisation upon their return home. See the debate in QPD, voL 73, 11 September1895, pp. 908-9.

Chapter 5: Seclusion or Spectacle? 265

The decision to execute Tommy and George in Maryborough was an unusual one. Of the

82 executions to take place in Queensland between 1860 and 1913, a mere 14 were

conducted outside Brisbane.61

Tommy and George were the last two, with the exception of

Michael Barry, who suffered the penalty of death in Rockhampton in 1890. Sometime

during the 1870s a decision had clearly been made to remove all condemned prisoners to

the capital for execution, marking a significant gesture towards an increased privatisation of

proceedings and indissolubly associating the ultimate punishment of the law with the centre

of power in the colony. The variety of exceptions made for the execution of the two

islanders represented an attempt by the colonial government to overcome the recurrent

dilemma of how to treat non-European offenders. The execution statistics clearly illustrate

their persistent over-representation in this particular area ofpunishment in comparison with

the European population (see Tables 5.2 and 5.3. For a complete list of offenders executed

in Queensland, see Appendix 6). Their unfamiliarity with the British legal system coupled

with the numerous barriers created by a determined racism, militated against success in the

court room and resulted in a greatly diminished chance of avoiding the death penalty.62

61 Four had been held in Toowoomba and seven in Rockhampton before 1876.

62 See, for example, Connors, "The 'Birth of the Prison' and the Death ofConvictism", pp. 100-11; Highland,"A Tangle of Paradoxes; and Patricia Mercer, White Australia Defied: Pacific Islander Settlement in NorthQueensland, Department ofHistory and Politics, James Cook University, Townsville, 1995, pp. 12-20.

Chapter 5: Seclusion or Spectacle? 266

Table 5.2: Racial Origins of Offenders Executed in Queensland, 1850-1913

I Race I No. Executed IEuropean* 40

Aboriginal 19

Pacific Islander 13

Chinese 9

Cingalese 2

Filipino 2

Eurasian# 2

Javanese 1

Japanese I

South American (Chile) 1

Total 90

* Includes one female.# Denotes those of mixed ancestry.

Source: Connors, "The 'Birth of the Prison' and the Death of Convictism", p. 105; newspaper sources;Barber, "Capital Punishment in Queensland", pp. 193-7; and Prisons Department, Record of DeathSentences, Brisbane, 3 Nov 1865 - 20 Mar 1922, QSA PRl/18-19.

Table 5.3: Temporal Distribution of Executions in Queensland at Ten Year Intervals,1850-1913

Years European Non-European

1850-1859 3 5

1860-1869 8 5

1870-1879 8 10

1880-1889 9 10

1890-1899 3 9

1900-1909 7 9

1910-1913 2 2

Total 41 49

Source: As above.

Chapter 5: Seclusion or Spectacle? 267

Chapter 5: Seclusion or Spectacle? 268

Public discontent and press cynicism at the execution in Maryborough emphasised the

sensitivity to judicial killing that was gradually developing within the community.63

Regardless ofwhether an individual supported capital punishment or not, there was certainly a

need to disassociate oneself from the barbarity of the process. It necessarily followed that

resentment would be felt in recipient communities when the government chose to move

against the trend towards privacy and conduct executions outside Brisbane. But there was

also a danger that proceedings could become too private. It was this issue that was to emerge

in 1879, after Joseph Mutter was tried and convicted ofmurder in Townsville and transported

to Brisbane for execution.

The Limitations of Privacy

The newly implemented inaccessibility to the execution procedure was contentious enough

for the Opposition of the day to gain political mileage from the circumstances attending the

death ofMutter. The first communications received by the public on the matter ofhis demise

were briefarticles in the Telegraph on 9 June 1879 and in the Brisbane Courier the following

day calling for an inquiry into the "atrociously revolting circumstances" surrounding the

execution.64 No notice of the condemned's impending fate had appeared in the press and,

when it was discovered that through the inefficiency of the hangman Mutter's head had been

severed on the drop, the outcry spread through the community and echoed in the halls of

parliament.65 The debate hinged on the lack ofnotification concerning the impending

execution and the Opposition, led by Samuel Griffith, harangued the government to great

effect.66 It was suggested by a member of the government that it was inappropriate to notify

the press of imminent executions as they "glorified the criminal and indulged in highly­

sensational descriptions for the edification ofa morbid class of the public" .67 In a moment of

feigned sensitivity the Courier seemed to concur:

63 See the editorial corrunents in the Maryborough Chronicle, 15 and 19 May 1877.

64 Brisbane Courier, 10 June 1879. The Telegraph described the death as "...most repugnant to the feelings"(9 June 1879).

65 For further details, see W.R.O. Hill, Forty-Five Years' Experiences in North Queensland, 1861-1905, H.Pole, Brisbane, 1907, p. 85.

66 QPD, vol. 29, 10 June 1879, pp. 338-44.

67 QPD, vol. 29, 10 June 1879, p. 340.

Chapter 5: Seclusion or Spectacle? 269

Unless some special reason to the contrary, we prefer to carry out the principle onwhich these executions take place - namely, keep out the crowd ofbrutalsightseers who enjoy such tragedies, and refrain from thrusting the gallows andits victim in sight of our readers who have done nothing to deserve so painful aninfliction.68

These comments demonstrated how, in the Courier's view at least, the execution procedure

was an affront to respectability. However, the volume of sensational articles liberally

scattered throughout Queensland's leading journal (concerning executions both at home and

abroad) would suggest that these sentiments did not accurately reflect editorial policy. Any

execution created great interest among the reading public, regardless of the individual reader's

position on the morality of the punishment, and it was almost obligatory for the press to

capitalise upon such curiosity to increase sales.

Boyd Morehead, the member for Mitchell, may have been correct when, in defence of the

government, he asserted that "If there had not been an unfortunate accident there would have

not been a single word said", but there did appear to be sufficient grounds to raise the issue of

obscuring the execution process from some degree ofpublic scrutiny. In any case,

unfortunate accidents were bound to occur occasionally during executions and these served to

reinforce the barbarity of the punishment itsel£69 Also surfacing in the debate was the fear

that a tyrannical government, bent upon eradicating opposition, could expediently utilise

private executions for its own political ends. This had been a popular argument against the

abolition ofpublic executions in Britain and the Australian colonies during the mid-century

shift towards privacy, and was the main reason for legislation incorporating provision for the

compulsory attendance ofwitnesses at each execution.70 Its reappearance suggested that two

decades ofprivate executions had not convinced some spectators that justice could be ensured

behind prison walls. 71

68 Brisbane Courier, 11 June 1879.

69 At the execution of Gee Lee in Toowoomba in 1870, the condemned's feet became caught on a cross beamupon withdrawal of the bolt and "he continued to struggle convulsively for about twenty minutes ...", untileventually suffocating (Brisbane Courier, 21 March 1870). Once again, during the execution ofPatrickCollins in 1872, the prisoner's neck was"...horribly lacerated and he bled profusely" (Brisbane Courier, 30May 1872).

70 See, for example, Argus, 24 November 1855. On Britain see McGowen, "Civilising Punishment", pp. 272­3.

71 The need for public scrutiny of the penal process also surfaced in the debate over whether 8t Helena shouldbecome the only gaol in the southern region. Many were against such isolation and it was considered

Chapter 5: Seclusion or Spectacle? 270

While the initial motion was eventually withdrawn, Griffith was able to embarrass the

Colonial Secretary, Arthur Hunter Palmer, by forcefully arguing against denying the public

the opportunity to challenge the decision of the Executive on behalfofthe prisoner. The

prospect ofa "secret execution" was one which offended the sensibilities of many and

threatened the judicial mandate of capital punishment. The sensation did not end with the

withdrawn motion, however, but was to emerge again in the following year when the

Secretary of State for the Colonies forwarded a circular despatch to the Colonial Secretary:

The attention both ofmy predecessor and myselfhas been called to cases where,through mismanagement or an adherence to barbarous usages, the execution ofcriminals has been attended with revolting circumstances, the recurrence ofwhich it is necessary, in the interests ofboth humanity and decency, to prevent by

'bl 72every PoSS! e means.

The despatch was followed six months later by a large plan ofthe gallows at Newgate Prison

to assist with any improvements required for the apparatus currently in use in the colony.

Kimberley's sentiments reflected the dominant and unequivocal attitude in Britain that a

private, sanitised procedure was to be implemented and offensive public displays were to be

avoided.

The Larrikin and the Lash

The punishment of flogging occupies a special place in Australian history. The public

spectacle ofa convict misdemeanant suffering the brutality ofa flogging of 100 or more

lashes remains even to this day as one ofthe most popular images of the era of

transportation.73 Indeed, the importance of the subject has been underlined by a longstanding

and lively debate about the frequency and brutality of its usage in convict Australia.74

necessary that the public should have limited access to its prisons (and remain aware of what took place inthem) to maintain confidence in the penal system (see QPD, vol. 30, 5 August 1879, pp. 1098-9)

72 Executive Council, Circular received from the Secretary of State for the Colonies on capital punishment,27 Jun, 28 Dec 1880, QSA EXEI7. See also Governor's Office. Original Despatches from the Secretary ofState for the Colonies, 27 June 1880, QSA A/46215.

73 See, for example, Robert Hughes, The Fatal Shore: A History ofthe Transportation ofConvicts toAustralia, 1787-1868, Pan Books, London, 1988.

74 For overviews of the use of corporal punishment in the convict period, see, for example, Jan Kociumbas,Possessions, 1770-1860: The Oxford History ofAustralia, vol. 2, Oxford University Press, Melbourne, 1995,pp. 157-8; Evans and Thorpe, "Commanding Men", pp. 17-34; Evans and Thorpe, "Power, Punishment and

('haptef 5: Seclusion Of Spectacle? 271

Comparatively little attention has been paid to its virtual disappearance as a judicial

punishment in the half century following the cessation of transportation. It has been

suggested that the decline in its use following the convict period - a decline more rapid than in

the case of Britain - was at least partly due to memories of its barbaric past,75 Whatever the

motivation for this restriction in its use in the Australasian jurisdictions, by the end of the

nineteenth century, sentences of flogging were essentially reserved for punishing offences

committed by male youths and prisoners, and for particular offences, especially sexual

offences.76

Post-convict Queensland was no exception to the general pattern ofdecline in the use of

whipping as a punishment for criminal offences?7 In a return of the number ofcorporal

punishments inflicted in Brisbane Gaol and St Helena during the ten years prior to 1880, it

was demonstrated that there were a mere sixteen cases in tota1.78 Only three of these were the

result of sentencing orders, while the remainder were for breaches ofprison discipline.79 In

justifying his request for the return, William Walsh advised the Legislative Council that

"information had lately reached him that punishment was inflicted upon prisoners in the gaols

of the nature ofwhich the public knew nothing".8o This time it was the possibility ofmen

being secretly "tortured under the lash" that constituted a challenge to the legitimacy of

imposing private physical punishments.81 But any humanitarian concern about the

Penal Labour"; and Finnane, Punishment in Australian Society, pp. 20-2. See also A.G.L Shaw, Convictsand the Colonies: A Study ofPenal Transportation from Great Britain and Ireland to Australia and otherparts ofthe British Empire, Faber and Faber, London, 1966, esp. chs 9-10; Sturma, Vice in a Vicious Society,ch. 1; and Nicholas (ed), Convict Workers.

75 Finnane, Punishment in Australian Society, pp. 5-6, and 22.

76 Finnane, Punishment in Australian Society, pp. 112-8. Barber has also demonstrated that the use ofcorporal punishment for sexual offences was a widely accepted concept in colonial Queensland (see Barber,Rape and Other Sexual Offences in Queensland, pp. 25-31).

77 For a discussion of the use of corporal punishment in pre-separation Queensland, see Connors, The 'Birthof the Prison' and the Death of Convictism, pp. 46-53. On the convict period, see Evans and Thorpe, "Power,Punishment and Penal Labour".

78 Gaoler to Sheriff, 5 October 1880, QSA COL/A299 [5334].

79 The three judicial floggings were for highway robbery under arms (in 1870), indecent assault (in 1873),and attempting to carnally know a girl under ten years of age (in 1876).

80 QPD, vol. 31, 23 September 1880, p. 80.

8l Such sentiments were still being expressed as late as 1887. See, for example, the Brisbane Courier's pleafor an end to the system whereby gaol officials (in the form of visiting justices) were able to award physicalpunishments to offending prisoners (15 September 1887).

Chapter 5: Seclusion or Spectacle? 272

appropriateness ofcorporal punishment was soon to be undermined by the emergence of

another ubiquitous colonial 'folk devil' - the larrikin.

It has already been mentioned that the 1880s was the decade in which the juvenile delinquent

rose to prominence in colonial society. Steady increases in minor offences against the person,

public order violations, and offences under the Vagrant Act were attributed to the criminal

activity of colonial youths. This perceived increase in juvenile delinquency prompted the

regular appearance ofnewspaper commentary bemoaning the wretched state ofcolonial youth

and targeting the hated figure ofthe larrikin.82 Anxiety at the threat of the larrikin class did

not end with emotional outpourings in the press, however, but was to provoke some

interesting statements from influential representatives ofthe criminal justice system.

Throughout the mid-1880s, the Commissioner of Police consistently highlighted the problem

ofcrime committed by Brisbane larrikins in his annual reports, never wavering from his belief

that "nothing but corporal punishment will effectually P1Jt a stop to this nuisance".83

Similarly, William Townley regarded imprisonment as a largely ineffective penalty, preferring

the lash as a suitable alternative:

It may not be out ofplace in this report to draw your attention to a class ofprisoners frequently sent for confinement here [8t Helena] - I allude to youngoffenders, now generally known as "larrikins". It is to be regretted that someother system than sending them to be incarcerated and associated with old andhardened criminals is not adopted. I would suggest that they should be eitherkept in strict isolation in Brisbane Gaol, or, if the law sanctioned it, whipped andturned out of gaol at once.84

These harsh suggestions were never implemented in the form oflegislation, but there were

incidents that demonstrated a hardening in approaches to serious offending.

In August 1884, four men were charged in the Brisbane police court with having assaulted

and robbed Charles McKenzie in William Street.85 Unfortunately for the assailants, the police

commissioner's report for 1883 had just been tabled in parliament and was to receive

82 See, for example, Week, 27 August and 31 December 1881,25 February 1882; Figaro, 10 February 1883;Brisbane Courier, 3 January 1884, 6-8 June 1887; Evening Observer, 21 September 1889.

83 "Report of the Commissioner ofPolice for the Year 1883", QVP, vol. 1, 1884, p. 543. See also his annualreports for the years 1882 and 1884-6.

84 1ARSStH, 1883, QVP, vo . 1, 1884, p. 526.

85 Brisbane Courier, 21 August 1884.

Chapter 5: Seclusion or Spectacle? 273

significant editorial treatment in the Courier the day after their committal hearing. The focus

of the article was on the perceived increase in larrikinism during the previous year, and the

need to meet this form oflawlessness with a determined response:

In view of the alarming rate of increase in those crimes which come under thehead of larrikinism, our Legislature would do well to take some strong measuresto check that increase before the evil has become any greater than it is now. It isproved by the experience of other countries that there is a class ofoffenders whocan only be restrained by the fear of corporal punishment. The lash is thespecific cure for larrikinism.86

A few days after the article was published the four men, William Lucas, Hugh McIntyre,

Robert Wilson and Thomas McLean, appeared at the Supreme Court criminal sittings. After

hearing evidence that they had violently assaulted their victim, almost suffocating him in the

process, the presiding judge, Charles Lilley, decided that they should have been charged with

a more serious offence than robbery.8? He believed that their,crime could well have included

garotting and he subsequently ordered that the men stand trial in two days on the graver

charge of robbery with violence.88

On the morning of their reappearance, the Courier again published a lengthy article

condemning a group of larrikins for violently harassing an innocent party of "ladies and

gentlemen" who were peacefully walking on the river bank at West End. It concluded with

another passionate appeal for the use ofcorporal punishment in such cases, even suggesting

that a larrikin or two should be chained up at each state school to demonstrate to the pupils

"the state of degradation to which a human being can be reduced".89 The colony's premier

newspaper was determined that the phenomenon oflarrikinism would be at the forefront of

everybody's minds when the men appeared in court. The second trial did not take long as the

evidence was simply reiterated from the previous hearing.9o The defendants remained

86 Brisbane Courier, 22 August 1884.

87 Brisbane Courier, 28 August 1884.

88 In England and Wales, the offence of garotting was frequently punished by a sentence of flogging andimprisonment, especially after the 'garotting panic' of 1862 (mentioned in Chapter 2). Indeed, Fillnane hasargued that while it was sexual offences that were most commonly punished by flogging in the colonies, inBritain it was robbery with violence (see Punishment in Australian Society, p. 118). In Queensland, it wouldappear that both offences attracted the punishment.

89 Brisbane Courier, 30 August 1884.

90 For further details, see the depositions in the case ofWilliam Lucas, Hugh McIntyre, Robert Wilson andThomas McLean, QSA SCT/CC52, no. 16.

Chapter 5: Seclusion or Spectacle? 274

unrepentant, each proclaiming his innocence in tum. After a mere twenty-five minutes, the

jury returned and a verdict of"guilty" was recorded against each offender. In passing

sentence, the judge pointed out that they belonged to "the most dangerous class oflarrikins"

and that he was determined to put down such an "obnoxious element". Each received a

sentence of two years imprisonment with a further twenty-five lashes "to be administered by

the regulation 'cat",.91

No time was wasted in executing the whipping portion of the sentence, and the prisoners were

brought to the triangles at Brisbane Gaol two days after the trial. There they each received

their twenty-five lashes at the hands of the public executioner, John Hutton. In a final gesture

reminiscent of the Aboriginal and Islander executions, the authorities attempted to augment

the deterrent effect of the punishment by forcing eight larrikins undergoing sentences in the

gaol to stand at attention and bear witness to the display.92 But the spectacle did little to

assuage press discontent at the measures being taken to deal with larrikinism. The Week

described the flogging as a "miserable failure", while Queensland Figaro saw it as "a travesty

on penal law - a ridiculous parody that made the majesty of the law feeble and dignified the93 ..

offenders into heroes". Apparently, the eighty-four year old scourger was unable to

administer each blow with enough force to inflict sufficient pain on the offenders. In fact,

"hardly a murmur" was heard from each man and only a little blood was seen to ooze from the

skin.94 There were also tales ofbravado in which the men allegedly challenged Hutton after

they had received their punishment, later basking in the admiration of their fellow prisoners.

Clearly, the press wanted more blood, more pain, and more outward signs ofsuffering and

distress. In unison, each newspaper represented the exercise as an abject failure that did little

to deter the larrikin class, or assuage community outrage.

In 1885 another three men were convicted ofa similar case of robbery with violence.95 In this

instance, however, it was clear from the outset that a chain had been used to garrotte their

91 Brisbane Courier, 1 September 1884.

92 Brisbane Courier, 2 September 1884.

93 Week, 6 September 1884; and Queensland Figaro, 6 September 1884.

94 Queensland Figaro, 6 September 1884.

95 For details of the case, see Brisbane Courier, 20 and 22 July and 1, 2 and 3 September 1885. See also thedepositions in the case of William Phillips, Daniel Carmichael, James Toohey and James White, QSASCT/CC58, no. 3.

Chapter 5: Seclusion or Spectacle? 275

victim. Once again, it was Chief Justice Lilley who was required to pass sentence upon the

malefactors - only this time he intended to compensate for past leniency. The Courier

reported:

The moral weight of the previous judgement of the court was greatly diminishedby the injudicious comments of the Press upon the manner in which thepunishment had been administered. It was made to appear that the punishmentwas light and trivial. He (the Chief Justice) would endeavour to remove thatimpression from the minds of criminals by increasing the punishment on the

. [ h' ] 96present occaSlOn my emp aSlS .

Lilley's remarks demonstrate how the judiciary could be influenced by the press in responding

to serious crimes that had provoked significant community outrage. Consequently, Daniel

Carmichael was sentenced to two years imprisonment with three whippings - the first of fifty

lashes, and the second and third of forty lashes each; James Toohey received two years

imprisonment and two whippings of forty lashes each; and William Phillips received two

years imprisonment and two whippings ofthirty lashes each.

The men received the first of their floggings on 12 September in the company of another two

offenders under sentence for indecent assaults on minors. Hutton had since been replaced by

a new executioner who was much younger and ofa more imposing physique. Carmichael

was the first to receive his punishment. At the first stroke he uttered a yell,

kicking up his legs, but almost immediately the lash fell again almost in the sameplace, causing him to howl again. Commencing rather low down in the back thelash gradually ascended until it had covered in breadth about a foot of theprisoner's back Again and again the lash descended with the regularity of clock­work, the prisoner howling and yelling with each successive stroke. By thetwentieth stroke the red scores of the different strokes could hardly bedistinguished, and the prisoner's back was one red quivering mass. At the twenty­ninth stroke the dark blood, which had made its appearance in small clots afterthe first few lashes, began to ooze from the lacerated flesh and trickle down hisback, but still the blows fell one after another with pitiless regularity. And nowthe yells and shrieks sank to groans, and by the fortieth stroke the prisonershowed signs of fainting, only uttering a subdued moan as each stroke fell. Thesight now became painful to witness, and after a few more strokes Dr. Hobbsasked Dr. Wray ifhe did not think he had had as much as he could bear, butmeanwhile the flogging continued. Carmichael's body was now hanging by hisarms, and his head pressed convulsively against his left arm; but yet he continuedmoaning faintly until the turnkey called out fifty.97

96 Brisbane Courier, 3 September 1885.

97 Brisbane Courier, 14 September 1885.

ChapteT 5: Seclusion OT Spectacle? 276

Cannichael was carried away and the other prisoners each received their punishments in tum.

They each received the full quota of strokes prescribed in their sentences. There were some

signs ofbravado, but on the whole the next four floggings were administered without incident.

The press reaction was positive. The Courier was unequivocal in its support for the liberal

use of flogging in circumstances where excessive force was used by offenders. The lash was

considered an indispensable deterrent when dealing with habitual offenders:

When the wild beast which we tolerate among us shows his teeth we must floghim until he is cowed, and until his associates are terrified by his example. Andin doing this our justification lies in the paramount necessity ofprotecting theinoffensive community from grave danger.98

The Figaro was in agreement. The only point ofcontention was whether Cannichael

continued to be flogged after he had lost consciousness. But, in espousing the classic

utilitarian view of the objective ofpunishment, the editor considered this an insignificant

objection because the greatest possible benefit to the whole community had been achieved.

He concluded:

The fact that terror and craven fear have been inspired in the minds of ourgarrotters and child-violators, is but a small evil as compared with the goodwhich will be done to the whole community by the diminution of the number ofcowardly crimes attended by violence.99

The floggings were witnessed by three members ofparliament who duly raised at the next

sitting the question ofwhether such brutal punishment could be justified. Buttheir protests

failed to inspire scenes ofoutrage in the House. and the press was unfavourable in its reporting

f h . h .. 100o t elr umamtanan concern.

The second instalment of floggings was carried out two months after the first. Again the

prisoners exhibited signs ofgreat suffering, so much so that on this occasion, they each

received less than their full quota oflashes. IO! Cannichael then received his final forty lashes

98 Brisbane Courier, 14 September 1885.

99 Queensland Figaro, 19 September 1885. The Week also supported the floggings (19 September 1885).

100 Queensland Figaro, 19 September 1885; and Brisbane Courier, 16 September 1885.

101 Brisbane Courier, 20 November 1885; and Week, 21 November 1885.

Ch2pter 5: Seclusion or Spectacle? 277

at the end ofthe following February. The Courier reported that the scourger was "laying it on

very lightly", and that the punishment, compared with his earlier floggings, was "trifling". 102

It would appear that Lilley's objective had been achieved in the first floggings, and the

authorities deliberately shied away from repeating an exhibition which would invariably

arouse further protestations ofundue cruelty. With the initial floggings having served their

purpose, the Courier confidently endorsed the sentences imposed by Lilley and implored

other judges to follow suit:

We trust that our Judges will not be turned from the perfonnance of their duty tosociety by mistaken expressions ofhumanitarians. We trust that they will meteout the extreme penalty of the law till our streets are as safe at midnight as atmidday; till our wives, our sisters, and our children are as secure in our absenceas they are when surrounded by those who love them.! 03

The press at least was satisfied that severity in sentencing was the only suitable method for

deterring juvenile delinquents from committing violent offences.

In a manner similar to the executions of indigenous offenders, the above incidents

demonstrate how the punishment of flogging was manipulated to satisfy a political goal. The

brutality of the offence was the acknowledged factor leading to the alteration in the use of

corporal punishment in the mid-l880s. But the fact that the majority ofoffenders were youths

played on the fears of those who saw the larrikin class as posing a new threat to colonial

society, a threat that had to be met with force. Not long after the first series of floggings was

inflicted late in 1886, the Australasian press would be saturated with stories ofa similar,

though more spectacular, event in which an eighteen-strong gang oflarrikins was convicted of

violently raping a young woman at Mt Rennie near the working class suburb ofWaterloo in

Sydney. Once again editorial outrage would influence the severity ofpunishment inflicted on

the offenders, and four would eventually hang for the offence. 104 The incidents in Brisbane

may be seen as an early indication of the severe response that would inevitably result from the

moral panic over juvenile delinquency in colonial society.

The use ofdifferent forms of corporal punishment was to remain a common sanction

102 Brisbane Courier, 1 March 1886.

103 Brisbane Courier, 16 September 1885.

104 See Walker, "Youth on Trial", pp. 28-41.

Chapter 5: Seclusion or Spectacle? 278

employed against youths in the early decades of the twentieth century. We have seen in

chapter five that for those undergoing some form ofcustodial sentence whippings were still

used to punish recalcitrant behaviour. But the sentences were certainly decreasing in severity,

and there is evidence ofa more general softening in attitudes towards the use of corporal

punishment. For example, when in 1914 a ten year old boy was convicted ofabsconding from

the horne ofhis foster parents and stealing one sovereign, the Gyrnpie Bench ordered that he

be given four strokes ofa cane as punishment. However, the local policeman instructed to

administer the sentence declined to do so on conscientious grounds. lOS Earlier, in 1908, a

Mackay headmaster was prosecuted in a civil court action for lIunreasonably and excessivelyll

punishing an eight year old school boy with a bamboo cane. The resulting conviction was

ultimately overturned on appeal to the Supreme Court, but it is further evidence that attitudes

towards corporal punishment were gradually changing, especially in the case ofchildren and

youthS. I06 Both incidents are reflective ofa more general decline in the use ofcorporal

punishment in Australia as representatives of the criminal justice system became more. . . lO7

senSItIve to Its use.

Yet the history ofcorporal punishment in Queensland again highlights a particular peculiarity

in the infliction ofpunishment in colonial jurisdictions. Ifthe indigenous population is taken

into account, the general pattern ofdecline in the use ofcorporal punishment appears a more

uneven process in which flogging remained a feature for many Aborigines and Torres Strait

Islanders living in isolated parts of the State or confined on reserves or missions. It is well

known that in the colonial period informal floggings were frequently used to discipline

Aborigines, especially those involved in the various colonial industries employing indigenous

labour. lO8 But there is also evidence to suggest that this practice continued well into the

twentieth century. The superintendent at Aurukun mission in the 1920s and 1930s, for

105 Acting Sergeant Henry to Inspector ofPolice, Maryborough, Police Department, Commissioner's Office,General Correspondence, Whipping of offenders, 1914-31, QSA A/45429.

106 Brisbane Courier, 20 February 1909; and Arrnat v Little, Queensland State Reports, 1909, pp. 83-6. Oncorporal punishment in Queensland schools, see E. Clarke, Corporal Punishment in Queensland StateSchools: Historical Perspectives on Contemporary Issues in Queensland Education, No.1, Department ofEducation, Brisbane, 1980.

107 For a discussion, see Finnane, Punishment in Australian Society, pp. 119-26.

108 See, for example, police magistrate Gympie, to under colonial secretary, 11 October 1876, QSACOUA228 [2894]; Vincent Dowling to colonial secretary, 4 June 1887, QSA COUA503 [4520]; and policemagistrate Norrnanton, to assistant under colonial secretary, 10 November 1890, QSA COUA639 [12476].

Chapter 5: Seclusion or Spectacle? 279

example, frequently used corporal punishment to discipline the Aborigines living there. 109

Considering the poor inspection record of these isolated institutions, not to mention the

unprecedented degree ofautonomy invested in the superintendents who managed the

disciplinary regimes within each, it would seem likely that the Aurukun experience was far

from unique.

Transition to Private Executions

Following the 1870s the history ofcapital punishment was characterised by a distinct

movement away from the semi-public spectacle towards increased privacy. Gradually the

assembly ofspectators at each event decreased in size so that those present were all official

functionaries ofone sort or another. In certain cases, however, the public still maintained a

keen interest in the proceedings and large crowds often formed outside the prison gates at the

time ofexecution. The cathartic moment now became the instant in which the gates were

opened and the funeral wagon carried the corpse away for burial. A crowd of200 had

assembled to witness the appearance of the funerary vehicle after the execution ofFrancis

Horrocks in 1892. He had been convicted ofmurder and his case had excited much public

. fh' h 110mterest on account 0 IS yout .

Even greater interest was generated when Patrick Kenniffwas executed in 1903 after an

extensive campaign had been launched for the commutation ofhis sentence. I I I The Courier

estimated that 500 or 600 people, including men, women and children, had assembled at the

gaol gates out ofa "morbid interest" in the proceedings and, following the execution, a 60

vehicle strong funeral cortege wound its way from the gaol to the South Brisbane

109 Rosalind Kidd, The Way We Civilise: Aboriginal Affairs - the Untold Story, University ofQueenslandPress, St Lucia, 1997, pp. 119-22. In the Northern Territory in the 1930s, flogging was employed as anindispensable disciplinary tool by at least one officer involved in the administration ofAborigines (see TimRowse, "Strehlow's Strap: Functionalism and Historicism in a Colonial Ethnography", in Bain Attwood andJohn Arnold (eds), Power, Knowledge and Aborigines, La Trobe University Press, Melbourne, 1992, pp. 88­92). See also Raymond Evans, Fighting Words: Writing About Race, University of Queensland Press, StLucia, 1999, esp. pp. 189 and 194-5.

110 Horrocks was only 20 years of age (Brisbane Courier, 27 September 1892).

111 Brisbane Courier, 13 January 1903. Interestingly, the tradition of tolling the prison bell was resurrectedon this occasion. The sensation generated by the trial of James and Patrick Kenniff, and the execution of thelatter, is best documented in the Truth, 6 July 1902 to 18 January 1903. See also E.G. Heap, "The RangesWere the Best: The KenniffStory", Queensland Heritage, vol. 2, no. 1, 1969, pp. 3-23; and Barber, "TheLabor Party and the Abolition ofCapital Punishment", pp. 4-5.

Chapter 5: Seclusion or Spectacle? 280

Cemetery.II2 The authorities had been incensed at the level ofpublic support for the Kenniff

brothers during their trial. They were frequently cheered as they marched in and out ofcourt

and gaol. At one point Chief Inspector Alex Douglas instructed detectives and plain clothes

police to stand outside the court and take down the names and addresses ofany people

"making any demonstration". 113 Anyone who was found to be in any way causing a

disturbance was to be arrested or summonsed to appear in court.

Throughout the execution proceedings, and in the days leading up to their death, condemned

prisoners were confined under close inspection. 114 Usually in irons to prevent a suicide

attempt (thereby depriving society of its moment of retribution) the condemned was also

isolated from other prisoners and expressly forbidden from observing the gallows - unless

required for a trial run in which the hangman would test his apparatus. A visitor to Brisbane

Gaol recorded his horror at the architectural provisions made for condemned prisoners:

The Gallows is erected inside the walls of the Prison opposite the condemnedcells and in view of the occupants thereof through barred gates night and day, Iwas shocked to see such a state of affairs and am convinced that the convicts nowunder sentence of death if they are not lost to all human feeling must have theirsufferings greatly aggravated by such a sight, I15

Tommy and George also had witnessed the construction ofthe gallows outside their cells

when incarcerated in Maryborough lockup. The practice always provoked an adverse reaction

from critics of the execution procedure, who were quick to emphasise the barbarity of such a

manoeuvre. Such protestations were evidence ofa concern for the prisoner's feelings and

illustrated an effort on the part of the state not to replicate the barbarity of the offence in the

execution of its perpetrator. It highlighted that the execution itselfwas not simply a display of

force, and is further evidence that transforming sensibilities towards excessive cruelty and

violence were affecting the execution ofcapital punishment in the colony.

112 Occasionally exceptions were made and, in 1883, the father ofa murdered woman was permitted to attendthe execution of her killer. Coincidentally he was to witness Queensland's only triple execution in whichJames McMahon (alias Gardiner), the murderer ofhis daughter, was flanked on either side by the AboriginesJango and George as he trembled and sobbed upon the scaffold. Jango had been convicted of murder, whileGeorge was being executed for rape (Brisbane Courier, 16 October 1883).

113 Chief Inspector to Under Sec, 10 September 1902, QSA JUS/A158.

114 The Gaoler at Brisbane Gaol paid particular attention to the behaviour of the condemned preliminary totheir execution. See Principal Gaoler's Journal, QSA PRI 1124, especially pp. 286-94, 664-700 and 720-8.

115 Mr Abbott, JP, to Col Sec, 12 October 1883, QSA COLlA370 [5253].

Chapter 5: Seclusion or Spectacle? 281

From the date ofconviction the prisoner was attended by representatives from a range of

disciplines all fulfilling essential functions in the process oflegitimising the punishment,

dispersing responsibility for enforcing the act and, as we have already seen in the role of the

clergy, instructing the prisoner in the correct mode ofperforming his expiration. This

bureaucratisation was exemplified in the judgement process which, at its most complex,

began with a jury of twelve who convicted the prisoner, leaving it to the presiding judge to

pass sentence. If the sentence was death the Home Secretary would forward the trial papers

and judge's report to the Chief Secretary, who would then pass them on to the Ministers and

the Governor for perusal. The Home Secretary's department would then make a

recommendation to Cabinet and a meeting would ensue in which a decision would be made.

The Governor then conveyed this decision to the ChiefSecretary and a meeting of the

Executive Council was called to confirm the judgement once again. I 16 This complex

procedure, which gradually became more elaborate throughout Queensland's history,

abrogated any single individual from the stigma ofculpability.

The medical profession as well performed a role that became increasingly more significant

than simply pronouncing death and conducting a post-mortem. As questions ofcriminal

responsibility were pushed to the fore with the development of the profession and its

diversification into related disciplines like psychology, doctors were often required to arbitrate

in cases where the condemned may have been insane. 117 Intervention from the fringe of the

discipline also occurred with the attentions ofphrenologists being felt both before and after

the execution. By 1880, it was not uncommon for those loosely associated with medicine to

acquire the remains ofan executed felon for scientific study. Following the execution of the

Chinese murderer Ah Sue the government authorised handing over his head to the Russian

scientist Baron Maclay so that he may conduct his "investigations into the cerebral

development of the various races ofman" .118 The renowned southern phrenologist Professor

116 Under Sec to Home Secretary's Department, 31 August 1906, QSA HOMJJ20 [10351].

II? For an analysis of the intervention of the psychiatric profession in the criminal justice sphere, see Garton,"The Rise of the Therapeutic State", pp. 378-88. See also Finnane, Punishment in Australian Society, pp. 98­107 and 127.

118 Brisbane Courier, 28 June 1880. A plaster cast was taken of the face of Gardiner in 1883 after hisexecution (Brisbane Courier, 16 October 1883) and an unnamed phrenologist was also in attendance at theexecution of Pickford (see Brisbane Courier, 31 May 1887). Maclay was later given pennission to conduct apost-mortem examination of the executed Aboriginal Johnny Campbell (see Maclay to Col Sec, 9 August1880, QSA PRIlA17 [0969]).

Chaptt,r 5: Seclusion or Spectacle? 282

Blumenthal was pennitted to attend the execution ofEllen Thompson and John Harrison. 119

Conveniently, his cranial examination ofThompson's corpse "showed that in the woman

combativeness and destructiveness were both large, the domestic affections were fairly full,

the animal or selfish propensities were full, the moral propensities were small, and sexual love

- amativeness, exceedingly large". 120 Harrison's attributes also expediently matched the crime

for which he had just been executed. Blumenthal's posthumous diagnosis allowed the Courier

to emphasise the inherent evil in the offenders, thereby presenting the crime as inevitable and

the punishment appropriate.

The demise ofthe public and semi-public executions precipitated a transfonnation in the

confession ritual. Prior to the privatisation of the execution, the condemned was given a final

opportunity to confess his/her guilt publicly to atone for misdeeds committed during a tragic

life. This was the point in the execution process where the event could be subverted to

something bordering on the camivalesque if the prisoner chose to die "game" and inspired

vociferous sympathy from the crowd. 121 One of the final rights of the condemned, even

during Queensland's last executions, was to address the audience assembled to witness the

display.122 Gradually, as the number of spectators de~reased, it became the responsibility of

the press to convey the condemned's last words to the public. This certainly was not a new

practice, but the innovation lay in it becoming the only method for transmitting the intended

meaning ofthe event. It was diluted further by the increasingly common practice ofrecording

the confession or final statement before the date ofexecution, thus eliminating the possibility

ofa change ofheart as the prisoner stood upon the scaffold, and monopolising the benevolent

forces of the clergy and other visitors as they focused their attentions upon the prisoner in the

cell.

The advantage that now lay with the authorities was the ability to censor the condemned's

discourse ofpenitence if it offended the unwritten moral code to which they often appealed

and allowed the state to reimpose the political function ofnarrating the crime without having

119 Thompson and her paramour, Harrison; had been convicted of the murder of her husband. Although anumber of women were sentenced to death in Queensland, Thompson was the only one to suffer the penalty.

120 Brisbane Courier, 14 June 1887.

121 See Foucault, Discipline and Punish, pp. 57-65 for an illuminating discussion.

122 However, on one occasion in 1874 this right was denied the murderer Donald Ross (Brisbane Courier, 22November 1874).

Chapter 5: Seclusion or Spectacle? 283

to contend with celebrations of the condemned's last words. 123 When George Blantern,

convicted ofbrutally murdering a young woman, penned his final statement he did so with the

intention ofhaving it published in the Rockhampton Bulletin after his execution. 124 The

Colonial Treasurer, however, was "of the opinion that in the interests ofpublic morals this

document should not be published tl, and Blantern's statement was consigned indefinitely to

the archives of the Colonial Secretary's Office. 125 The manuscript, heavily laden with

religious references and the obligatory condemnation of tithe drinktt, was not unlike those

composed by other condemned prisoners and regularly printed in the press. 126 Blantern did,

however, exceed his license when he referred to his victim:

May poor Flora MacDonald's death act as a warning to young girls who areaddicted to the sin oLflirting, I do earnestly beseech all such to refrain from sodoing for it certainly is a sin and a grave one inasmuch as it causes many untruthsto be spoken and God's most holy word says 'lying lips are an abomination to theLord'. 127

It would seem that Blantern was attempting to assuage his guilt by implicating his victim in

motivating the crime. This was too much for the government who were loath to authorise the

publication ofanything but unqualified penitence.

Throughout Queensland's early history discordant voices were frequently heard condemning

the practice ofcapital punishment, but it was not until the 18908 that an abolitionist

123 Foucault discusses the loss of this political function to the celebratory broadsheets, ballads and otherplebeian literature that accompanied executions earlier in the century (Discipline and Punish, pp. 67-9). Onthe influence of condemned prisoners' last words and actions, see Laster, "Famous Last Words tl and PhilipSmith, "Executing Executions: Aesthetics, Identity, and the Problematic Narratives of Capital PunishmentRitual", Theory and Society, vol. 25, no. 2,1996, pp. 235-61.

124 Blantem had killed the woman with a tomahawk and then attempted to incinerate the body at Marlboroughin May 1893.

125 George Blantem to Col Sec, 20 October 1893, QSA COL/A752 [12547]. For details of the trial see theRockhampton Morning Bulletin, 21-23 September 1893. The report ofBlantem's execution appeared in theBrisbane Courier, 24 October 1893 and the Rockhampton Morning Bulletin, 24 October 1893. The ColonialTreasurer was Hugh Muir Nelson and his decision was endorsed by the Colonial Secretary, Horace Tozer.

126 See the statements of Christopher Pickford (Brisbane Courier, 31 May 1887) and especially JamesWarton (Brisbane Courier, 18 July 1905) for similarities. However, after the execution of Francis Horrocksin 1892 the Courier implied that his confession had been withheld from the public (Brisbane Courier, 27September 1892).

127 George Blantem to Col Sec, 20 October 1893, QSA COL/A752 [12547J.

Chapter 5: Seclusion or Spectacle? 284

movement began to establish some momentum. 128 Closely tied to the fortunes of the labour

movement, the abolitionists' ranks were filled with Labor Party members who ultimately

became the movement's mouthpiece in Parliament. 129 Sensing increasing dissatisfaction with

capital punishment among certain sections of the population, and its incompatibility with

developing humanitarian sensibilities, the more reformist politicians seized upon its retention

as an election issue. Representatives from religious groups and charity organisations also

became involved in the various agitations for the commutation ofdeath sentences following

1880. 130 When the Criminal Code Act was passed late in 1899 rape ceased to be a capital

offence in Queensland. 131 However, the progress of the reform movement was not matched

by an appreciable decrease in the frequency ofexecutions. In Queensland, twenty were

carried out between 1900 and the final death in 1913, whereas in the demographically larger

state ofVictoria there were only twenty-one between 1900 and 1967.132 Perhaps the reason

for this higher rate in the northern State was the influence of race once again. Queensland

possessed a much larger indigenous population than the southern states, and there were still

large numbers ofMelanesians resident in the State until 1906.133 It was generally the cases of

European offenders which were championed by the opponents ofcapital punishment, 134 with

non-Europeans receiving only occasional token support insofar as any execution harmed the

b 1··· 135a 0 ItlOlllSt cause.

128 For an early (and rare) anti-capital punishment text, see Jo1m Camille Weale, The Calvary ofSuperstitionor the Downfall ofthe Scaffold: An Essay on Capital Punishment, A. Keith, Leader Office, Brisbane, 1886.

129 See Barber, Capital Punishment in Queensland, pp. 102-88, for the most complete analysis of the abolitionmovement. See also the speech to Parliament by Lesina in QPD, vol. 82,27 September 1899, pp. 149-60.

130 Apart from the Catholic and Church ofEngland clergy, there were also Presbyterian, Wesleyan Methodist,Salvation Army, City Mission and City Tabernacle church groups involved. The Christian TemperanceUnion and Brisbane Board ofReliefwere also represented (see Barber, Capital Punishment in Queensland,pp.200-6).

131 The Criminal Code formally came into force in 1901 (see Barber, "Rape as a Capital Offence", pp. 39­40).

132 See K. Laster, "Arbitrary Chivalry", p. 168 for the Victorian data.

133 See Barber, "The Labor Party and the Abolition of Capital Punishment", p. 4. Following 1906,approximately 2-2,500 Melanesians were permitted to remain in Queensland.

134 The case ofPatrick Kenniffwas a striking example when a crowd of over 1000 attended his funera1­many in protest at the imposition of the death penalty (Truth, 18 January 1903).

135 A rare example ofsupport for an Aborigine (racist nonetheless) occurred when J.S. Collings, a prominentmember of the labour movement, wrote to the Brisbane Courier regarding two condemned men: "Perhaps thefact that they are only 'niggers' has something to do with the official and the public indifference to their fate;but to me this is an additional reason why we should be merciful" (Brisbane Courier, 12 May 1906).

Chapter 5: Seclusion or Spectacle? 285

It was only after the political climate changed in the latter half of the 1910s that the abolition

movement met with success. Following the 1907 Labor-in-Politics Convention the abolition

ofcapital punishment had become a regular feature of the Labor Party's social reform

programme. Seven years after Labor formed its first effective government, capital

punishment was officially abolished on 1August 1922. 136 Queensland was the first

Australasian jurisdiction to take this step. The campaign to abolish capital punishment

demonstrates the level ofpublic and political pressure needed to create possibilities for

meaningful change in the penal realm. Only in the case ofcapital punishment did this occur

in Queensland.

Conclusion

The evidence from Queensland would suggest that the ritual ofpublic execution was

preserved to perform a didactic function in which distinctive messages were communicated to

European settlers and to indigenous peoples. A complex interplay of discourses of deterrence,

retribution and social defence informed a display which underlined the state's power to punish

and reinforced its claim to a monopoly of violence in the colony. The decision to maintain the

semi-pUblic execution throughout fhe 1860s and 1870s and the modification ofproceedings in

cases ofnon-European offenders is further evidence ofthe influence racial conflict had upon

the infliction ofpunishment in colonial society. The movement away from the brutal

spectacle ofpublic execution was just as profoundly influenced by the phenomena of frontier

violence and unhappy race relations between Europeans and non-Europeans as it was with

transforming sensibilities towards the public infliction ofpain upon the body of the criminal.

The transition to privacy in the infliction ofphysical punishment was also influenced by

concerns about the secrecy ofprivate executions and the moral panic generated as a result of

fears about the behaviour ofBrisbane's 'larrikin class'. The tension created by these political

imperatives is evidence ofa briefcollapse at the margins of the civilizing process, which

brought about another inconsistency in the method of implementing physical punishment.

Ultimately, this tension was overcome. But its temporary existence clearly demonstrated that

wider social conflicts were a continuing impediment to the civilizing process, reinforcing the

136 Criminal Code Amendment Act of1922, 13 George V, no. 2.

Chapter 5: Seclusion or Spectacle? 286

point that any study applying Elias' model to settler history must take into account the impact

of such conflicts.

If the historian adopts a 'broad brush' perspective on the history ofphysical punishment in

most westemjurisdictions, then Elias' theory offers a tidy and plausible explanation. But the

inherent danger in uncritically accepting the existence ofa "civilizing process" is that it does

not necessarily lead the historian to seek a detailed explanation of the actual processes of

change, and can easily result in a teleological explanation. It is through investigating the

minutiae of the transition to private punishment in particular jurisdictions (a practice not

inconsistent with Elias' own method) that we discover that the transition was an awkward one

- a process ofcontest rather than consent, where restraint could give way to overt expressions

ofoutrage and violence, and where the power of the state was routinely displayed. While it

must be conceded to David Garland that historians and sociologists ofpunishment should

embrace the innovations ofcultural studies in "a more multi-dimensional framework of

inquiry",137 we must simultaneously guard, against endorsing a culturalist approach that

obscures the impact ofpolitical factors in the history ofpenal processes.

137 David Garland, 'Frameworks of Inquiry in the Sociology ofPunislnnene, British Journal ofSociology, vol.41, no. 1, 1990, p. 1.

Chapter 6: From 'Dispersals' to Confinement 287

Chapter 6

From 'Dispersals' to Confinement: Imprisonment and Race

In the previous chapter we saw how frontier conflict influenced the way in which capital

punishment was inflicted upon Aboriginal offenders. For many Aborigines living in this

period, colonial punishments, both formal and informal, were experienced in a more arbitrary

and brutal manner, with settler massacres and native police 'dispersals' the most dramatic

examples. But as the frontier was gradually pacified in the interests of the colonisers, first in

the south east during the 1840s to 1860s and then later in the central, western and northern

districts during the subsequent half-century, the opportunities for unchecked violence

diminished accordingly. The present chapter is concerned with this process ofmoving from

'dispersals' to confinement as the accepted form ofpunishment for indigenous peoples in the

colony. In this transitional period, the traditional elements of the criminal justice system ­

police, courts and prisons - assumed a more pervasive role in disciplining the indigenous

population, later to combine with the protectorate or reserve system to create a new locus of

regulation in the colony. 1 It was during these years that the colonial state became increasingly

dependent upon less violent tactics ofdispossession in its attempts to manage the indigenous

population: incarceration within institutions, segregation from the settler population, and

increased surveillance and regulation through an expanding bureaucracy. In the terms used by

Giddens, "disciplinary power" was surpassed by "administrative power" as the buttress of

state control of indigenous peoples.2

The specific experience ofAboriginal and Torres Strait Islander peoples confirms how

1 For works whieh address the role of Queensland's criminal justice agencies in dispossessing and regulatingthe lives of Aboriginal people see, for example, Breslin, Exterminate with Pride; Evans et al., Race Relationsin Colonial Queensland; Maurice French, Conflict on the Condamine: Aborigines and the EuropeanInvasion, A History of the Darling Downs Frontier, vol. 1, Darling Downs Institute Press, Toowoomba,1991; Kidd, The Way We Civilise; Loos, Invasion and Resistance; Dawn May, Aboriginal Labour and theCattle Industry: Queenslandfrom White Settlement to the Present, Cambridge University Press, Melbourne,1994; Reynolds, The Other Side ofthe Frontier; Rowley, The Destruction ofAboriginal Society. See also,the works on the native police force mentioned in the previous chapter; Malcolm D. Prentis, "The Life andDeath ofJohnny Campbell", Aboriginal History, vol. 15, nos. 1-2, 1991, pp. 138-51; and Tatz, "Queensland'sAborigines: Natural Justice and the Rule of Law", Australian Quarterly, vol. 35, no. 3,1963, pp. 33-49. Onthe history of Melanesians in Queensland see, for example, Regina Ganter, The Pearl Shellers ofTorresStrait: Resource Use, Development and Decline, 1860s-1960s, Melbourne University Press, Melbourne,1994; Finnane and Moore, "Kanaka Slaves or Willing Workers?"; Mercer, White Australia Defied; CliveMoore, Kanaka: A History ofMelanesian Mackay, Institute ofPapua New Guinea Studies and the UniversityofPapua New Guinea Press, Port Moresby, 1985.

2 Giddens, The Nation-State and Violence, pp. 181-91.

Chapter 6: From 'Dispersals' to Confinement 288

penality in the colonial context must be understood to encompass the extensive network of

Aboriginal 'protection', especially the direct role played by the police in regulating the day-to­

day lives of indigenous peoples. Formal criminal justice institutions and agencies played an

important role in this network, but just as important were welfare organisations, government

departments, and businesses and industries employing indigenous labour. Indeed, it is

important to recognise that incarceration (or restriction ofmovement) in a very real sense

came in many forms for the dispossessed indigene - eviction from traditional lands to

unfamiliar areas which were beyond settler interests, virtual slave labour on pastoral stations

or fishing vessels, enforced removal to the confines ofa reserve, regulated life within a

makeshift settlement on the fringe ofa town, and imprisonment. This theme ofincarceration

and continued regulation has been most rigorously explored in numerous unpublished works

which have concentrated on the histories of Queensland's Aboriginal reserves and missions.3

Yet this chapter does not attempt to analyse the entire complex ofgovernment and non­

government agencies and institutions involved in the regulation ofAboriginal people.

Instead, it focuses upon one under-researched aspect ofAboriginal penality - incarceration for

criminal offences - and attempts to explain how Queensland's penal practices were modified

to accommodate the more general colonial aspiration of restraining an indigenous population.

The chapter begins with a discussion of the early colonial attempts to devise an appropriate

punishment for Aboriginal offenders that fulfilled a segregative purpose, but was not

prejudicial to health. These early debates suggest that it is worth inquiring into the way in

which Aboriginal, and other non-European offenders, actually experienced their

imprisonment in Queensland's penal institutions. A briefdiscussion of this largely hidden

aspect of colonial penal history has been included in this chapter. The particular experience

of Melanesian offenders is then addressed, with attention focused on the role of imprisonment

in disciplining the indentured labour force. The chapter then concludes with an analysis of the

role ofpunishment in mediating the tum of the century transition to a new system of

regulation for Queensland's Aboriginal remnant - a race-specific penal-welfare system which

was to facilitate the exploitation, segregation and administration of Aboriginal and Torres

Strait Islander peoples for most of the twentieth century.

3 See, for example, Thomas Wesley Blake, A Dumping GrOlmd: Barambah Aboriginal Settlement, 1900-40,PhD thesis, Department ofHistory, University ofQueensland, 1991; Rosalind M. Kidd, Regulating Bodies:Administrations and Aborigines 1840-1988, PhD thesis, Griffith University, 1994; Christine M. Halse, TheReverend Ernest Gribble and Race Relations in Northern Australia, PhD thesis, Department ofHistory,University of Queensland, 1993; and Joanne Watson, Becoming Bwgcolman: Exile and Survival on PalmIsland Reserve, 1918 to the Present, PhD thesis, Department ofHistory, University ofQueensland, 1994.

Chapter 6: From 'Dispersals' to Confinement 289

Formulating a Punishment

As the period of intense frontier conflict was drawing to a close in the southern districts,

Queensland's administrators, on the advice of some local philanthropists, expediently

promoted the establishment ofa reserve system for the Aboriginal population.4 The first such

reserve was established at Mackay in 1871, much to the consternation of many of its local

residents.5 Their complaints prompted the formation of an inquiry in 1874 to determine the

most effective means for ameliorating the condition of the Aborigines. Included among the

commissioners' findings was recognition that imprisonment as a punishment was highly

incompatible with Aboriginal culture:

Among civilized people accustomed to long periods ofresidence in one localityimprisonment is more a moral than physical punishment, and does not, as a rule,prejudice health; but, with the Aborigines, such close confinement is so much atvariance with their ordinary habits that it is prejudicial to their bodily health,while the unavoidable contact with other classes of prisoners does not tend to anymoral improvement. It is therefore expedient to introduce some system by whichAboriginal offenders may be imprisoned apart; and to provide places ofconfinement where the discipline may be so modified as to admit of outdoor orfield labor rather than punishment of a sedentary character. It would scarcely bepracticable to have a prison on the mainland which would combine security withsufficient space for the employment of the prisoners in cultivating land, but thereare several islands off the coast which meet the requirements of isolationcombined with ample area of land adapted for agriculture.6

The fear that close confinement would result in the rapid deterioration ofAboriginal prisoners

had long been a consideration of the officers administering Queensland's penal institutions. In

1864, for example, the Visiting Justice at Brisbane Gaol was careful to exempt Aboriginal

prisoners from suffering long periods of isolation in individual cells, even though this was the

standard practice at the time for other hard labour prisoners.?

4 For the most detailed analysis of the decision to establish a reserve for the Aborigines, see Raymond Evans,"Queensland's First Aboriginal Reserve", Pts 1 and 2, Queensland Heritage, voL 2, nos. 4 and 5, 1971, pp.26-38 andpp. 3-15.

5 The reserve was gazetted in that year, but the fIrst Aborigines were not transported there until 1873. SeeEvans, "Queensland's First Aboriginal Reserve", p. 28 & 29.

6 "Aborigines ofQueensland. Report of the Commissioners", QVP, voL 2, 1874, p. 442. See also Rowley,The Destruction ofAboriginal Society, p. 174.

7 Visiting Justice to Col Sec, 12 August 1864, QSA COL/A58 [2374].

Chapter 6: From 'Dispersals' to Confinement 290

Despite their searching inquiries during the late 1860s, this particular aspect of colonial penal

administration escaped the attention of the Colonial Office. In an 1871 despatch, the

Secretary of State for the Colonies insisted that solitary confinement in the form of the

separate system would have the same effect on black as on white prisoners and should be

implemented without exception.8 The directive was ignored by the Queensland

administration as they set about structuring their penal system on the premise that exceptional

treatment was required for indigenous offenders.

The 1874 commission established two essential principles for the punishment ofAborigines

that were to remain influential throughout succeeding decades. First, the idea of segregation

from the European population, free or criminal, is clearly in evidence. And second, the belief

that incarceration on an island penitentiary, rather than behind prison walls, was strongly

advocated.9 These principles were again expressed in the findings ofan 1876 inquiry into the

activities ofthe native police:

Attention has been directed to the infrequency of the arrest of Aboriginalcriminals. The difficulties ofprocuring evidence against such delinquents whichcould be accepted in Courts oflaw. The serious objections to the association ofaboriginal with white prisoners - and to the close confinement, discipline andfood adopted in Gaols which are prejudicial to the health of men who have beenunaccustomed to the restraints of civilized life. lo

Once again the recommendation was for the establishment of an island penal establishment

where Aboriginal prisoners could be employed in outdoor pursuits and where a school could

be established to educate them in the rudiments ofChristianity. The report went on to

encourage the acceptance ofAboriginal evidence in criminal cases" and endorsed the

8 Secretary of State for the Colonies to Col Sec, 15 April 1871, Governor's Office. Original Despatches fromthe Secretary of State for the Colonies, QSA Al46206, p. 243.

9 It is interesting to note that this idea of an island penitentiary has been proposed in the MaryboroughChronicle as early as 1864 (see Raymond Evans and Jan Walker, "These Strangers, Where Are TheyGoing?"; Aboriginal-European Relations in the Fraser Island and Wide Bay Region 1770-1905", in P.K.Lauer (ed) Fraser Island. Occasional Papers in Anthropology, no. 8, University of Queensland, 1977, p.66).

10 Extract from the Report of Messrs Drew, Gregory and Coxen on the Native Mounted Police Force Part IIpages 5 and 6,1876, QSA COLlA222 [1311].

11 The fIrst recommendation was not formally adopted until 1884 (Oaths Act Amendment Act ofI884, 48Vic, no. 19); although, in a modest concession, late in 1876 parliament passed legislation that allowed for aninterpreter to take an affmnation of truth (rather than a formal oath) in regard the translation of evidence

Chapter 6: From 'Dispersals' to Confinement 291

frequently made proposal to extend summary jurisdiction to certain districts at the discretion

of the Governor. 12 It was hoped that in this way a mild system ofpunishment would be

instituted which would encourage Aborigines to surrender offenders rather than risk a brutal

encounter with the native police. Despite this concern to make the criminal justice system

more sensitive to the needs ofAborigines, there was no accompanying attempt to merge

aspects of indigenous legal cultures with the British system - separation remained the

b· . 13o ~ectlve.

The difficulty of reconciling the Aboriginal form oflaw with that of the European colonists

was to emerge soon after the Mackay experiment had begun. In 1878 the Reverend Duncan

McNab 14 reported upon the state of an Aboriginal settlement on Bribie Island, north of

Brisbane. In his letter he emphasised the urgency of incorporating the Aborigines under the

British legal system: "The blacks must be subject to some law; when they are civilized they

are released from the restraint of their own laws and punishments, and should be subjected to

those ofother civilized subjects" .15 The problem for the authorities was to identify criteria to

differentiate between Aborigines who had become 'civilised' and those who remained

'uncivilised'. Frequently, Aboriginal offenders occupied a grey area in which their familiarity

with European legal customs was little more than a passing acquaintance. With these early

developments in the reserve system, the novelty in the Aboriginal experience of

imprisonment, or at least loss ofliberty, was that it very often preceded an offence. Their

traditional way-of-life was sharply interrupted when they were forced to congregate onto

reserves (hence becoming 'civilised'); and if, following this considerable adjustment, their

activities contravened British law, they were then much more likely to be prosecuted and

formally imprisoned.

(Oaths Act Amendment Act of1876,40 Vic, no. 10; and QPD, vol. 21,31 October 1876, pp. 1139-40).

12 The situation was very different in Western Australia, where summary jurisdiction could be exercised inthe case ofan Aboriginal offender pleading guilty to a non-capital offence (see Finnane, Colonization andIncarceration, p. 6).

13 McGrath, "Colonialism, Crime and Civilisation", p. 104. John Pratt has discussed how this was attemptedin the colonial New Zealand (see Punishment in a Peifect Society, ch. 2).

14 McNab was a Scottish Catholic missionary who attempted to establish Aboriginal families as small farmersin agricultural settlements on specially allocated land.

15 Duncan McNab to 1. Douglas, 16 October 1877, in QVP, Vol. 2, 1878, pp. 66-7.

Chapter 6: From 'Dispersals' to Confinement 292

In spite ofMcNab's appeals, however, the prosecution ofAboriginal offenders remained a

haphazard affair. In cases where the criminal activity ofAborigines did not directly affect

European interests, it was tolerated and a policy of non-intervention was generally pursued.

The commonly held beliefofthe various officers managing the criminal justice system in

Queensland was that offences committed by Aborigines upon Aborigines in accordance with

tribal law should not be prosecuted. 16 Following the 1887 board of inquiry, for example, the

commissioners reported that in such cases the offenders should be left alone unless the

offence was committed close to a town or white settlement. I7 Proximity to white settlement

meant a greater likelihood that the authorities would prosecute to ensure that a general

contempt for settler law did not develop among either the black or white population. For

those whose indiscretions attracted settler attention, it was the penal system that was to

represent their initial experience of 'civilisation'.

Experiencing Imprisonment

The surviving institutional records of the colonial period yield little information regarding the

day-to-day prison experience ofnon-European prisoners. Ifwe are to accept uncritically what

has endured as an accurate record, then we must draw the unlikely conclusion that these

offenders were, on the whole, accepting of their incarceration and existed as compliant souls

within the penal system. There is some evidence, however, that would suggest this was not

always the case. One such example is an incident that occurred at St Helena during

September 1890, in which approximately twenty prisoners were punished for "dirtying the

walls ofWard B12", two of their number also being charged with shouting and exhibiting

disorderly conduct. IS What was interesting about this episode was that nearly all of the

offenders were either Chinese, Cingalese, Islanders or Aboriginal prisoners. Unfortunately,

there is no way of discovering the nature ofthe grievance which led to the outburst; however,

it would be reasonable to conclude that the disturbance was a form of protest against

something which adversely affected non-European prisoners collectively.

16 See BI, pp. 884,926-7,977-8,980-1,982,986 and 996-7. See also Evening Observer, 10 September1887.

17 BI, p. 699.

18 St Helena Punishment Sheet for the month of September 1890, QSA COL/A632 [10563J.

Chapter 6: From 'Dispersals' to Confinement 293

More common were cases of individual prisoners reacting to their confinement in prison

either through self-mutilation or disobedience. Others were either so demoralised by their

unfortunate circumstances, or were suffering from some form ofmental illness, that they

chose to take their lives. 19 Many unsuccessful attempts resulted in re-classification as a

lunatic and temporary or permanent transfer to Woogaroo Asylum. In one instance, a suicidal

Chinese prisoner in Toowoomba Gaol was forced to wear muffs during the day and was then

handcuffed to a chain at night. He was later transferred to the Asylum.2o

The most dramatic expressions ofdiscontent with their incarceration were the escape attempts

made by non-European prisoners. In 1899, an Aboriginal prisoner made his escape from

Blackall Prison and successfully eluded his pursuers for a fortnight before being taken into

custody? I Three years later, two Aboriginal men, each serving a one month sentence for

larceny in Herberton police gaol, managed to break their leg irons and overpower the warder

in making their escape. They were still at large when the authorities conducted an inquiry

into the affair.22 Most escapes ended in recapture, but there were some cases in which the

escapees lost their lives while trying to regain their liberty. One such case occurred at

Brisbane Gaol in 1862 when Kipper Billy, lying under sentence ofdeath for rape, successfully

extricated himself from his leg irons and made a dash for freedom. He was shot through the

head as he climbed over the gaol wal1.23 In 1899, another Aboriginal prisoner, Jacky,

narrowly avoided a similar fate during his escape from Normanton Prison when the pursuing

warder's revolver failed to discharge.24 In 1921, Burketown Peter drowned in Moreton Bay

while trying to make his escape from St Helena?5

One offender whose prison experience was to embody each of these forms ofresistance was

19 See, for example, the case of Gun Lin (Superintendent, Brisbane Prison, to C-G, 18 September 1902, QSAPRIlA97 [3251]; and Principal Gaoler's Journal, Brisbane Prison, QSA PRI 1/24, pp. 675-7).

20 Gaoler, Toowoomba Gaol, to Sheriff, 17 September 1885, QSA PRIlA33 [1535].

21 Superintendent, Blackall Prison, to C-G, 23 October 1899, QSA PRIlA74 [3662].

22 Sergeant O'Donnell to Commissioner of Police, 11 April 1902, QSA PRIlA93 [1386].

23 Under Sheriff to Col Sec, 6 March 1862, QSA COL/A26 [0739].

24 Commissioner of Police to C-G, 17 May 1899, QSA PRIlA72 [1722].

25 Inquest into the death of Burketown Peter, QSA JUSIN718 (1921/121); and Brisbane Courier, 18-20January 1921.

Chapter 6: From 'Dispersals' to Corrfincment 294

that of the 23 year old Cingalese labourer, Sing Appo, convicted at Bowen in 1883 of the

manslaughter ofan overseer on Homebush Plantation and sentenced to fifteen years penal

servitude.26 He was to become one of the most difficult prisoners ever confined in St Helena.

During the first two years of his sentence he was punished for a variety ofminor offences,

including fighting, general disobedience, habitual laziness, and smoking at inappropriate

hours.27 This early phase of activity culminated in two attempts to commit suicide - one by

hanging, the other drowning. Following these attempts he was remanded for medical

treatment and eventually committed to the lunatic asylum in 1885.28 He was once again to

prove a troublesome inmate, twice escaping from the asylum, on one occasion successfully

eluding recapture for over a year.29 He was readmitted to St Helena in 1888 and, after a brief

period ofquiescence, eventually resumed his former behaviour. For the next five years he

was continually to harass the authorities by committing numerous behavioural offences which

culminated in an attack on one of the warders. With scant regard for his mental state, dietary,

exclusionary and physical punishments (including the use of gags and straight-jackets) were

all imposed in an attempt to curb Appo's rebellious instincts and transform him into a docile

prisoner.30 The authorities met with little success, and he was eventually discharged in June

1894, only nine months after committing his last recorded prison offence. Ironically, he was

to commit suicide some years later while under confinement in the Mackay lockup on a31drunkenness charge.

The admission ofnon-European criminals, along with a steadily increasing number of

lunatics, into Queensland's asylums once again raised the pervasive issue ofracial segregation

in the colony. The debates for 1882 record the comments ofone parliamentarian:

26 The overseer was also Cingalese. See Port Denison Times, 10 March 1883, for details of the trial.

27 Details ofhis prison record may be found in St Helena Penal Establishment, general record and descriptionofprisoners, 1875-1900, QSA PRI217, p. 50. See also Register of the various prisoners to whom wereallocated (at different times) the various gaol nos. 1-291, St Helena Penal Establishment, QSA PRI2/4, c.1880-1900.

28 Telegram from Superintendent, St Helena, to Under Col Sec, 17 July 1885, QSA COL/A431 [5467]; andWolston Park Case Book, 1885, QSA A/45611, p. 221.

29 See Brisbane Courier, 12 April 1886 and 13 September 1888.

30 Superintendent, St Helena, to Visiting Justice, 25 April 1889, QSA COL/A577 [3760]. He also receivedtwo sentences of twenty lashes each and numerous hours of solitary confmement during his sentence.

31 Inquest into the death of Singh Appoo, 30 October 1908, QSA mSIN408 [08/520].

Chapter 6: From 'Dispersals' to Confinement 295

South Sea Islanders and Chinese were mixed up with the white men in theAsylum. They slept together and ate together. There were different degrees ofinsanity, and many of those unfortunate people were to a certain degree sensibleand felt their position a little; and having to sleep and eat with South SeaIslanders and [Chinese] certainly added to the punishment which the unfortunateaffliction of those poor people caused them. He submitted that there should be aspecial ward for South Sea Islanders and Chinese. Their own people should notbe put side by side with that class, as he noticed they were every time he visitedthe asylum. 32

Similar concerns were faced by Queensland's penal administrators, prompting the limited

adoption ofa system of segregation in the larger prisons of the colony. In 1894, St Helena

was able to accommodate a maximum number of248 prisoners, 144 ofwhom were confined

in associated cells which housed a maximum of eight prisoners each.33 Six of these

associated cells were set aside for"coloured prisoners". But while the authorities were able to

establish an effective system of segregation within the colony's penal establishments,

insufficient accommodation in the smaller colonial gaols made the adoption ofa uniform

. 'bl 34strategy lmpossl e.

The scrupulously formulated 1892 rules and regulations did not explicitly provide for a

separate class ofprisoner according to his/her racial background. There was, however, a brief

directive regarding the issue of separate treatment for one section of the prison population:

"Pacific islanders and aboriginal prisoners shall not be required to undergo separate treatment,

but shall, where practicable, be kept in the daytime, when not at work, in a yard by themselves

and apart from otherprisoners".35 At 8t Helena, it was "e" yard that was set aside for this

32 QPD, vol. 38, 20 September 1882, p. 725. The statement was made by Liberal member W.G. Baileyduring the annual debate concerning the provision of funds to the colony's asylums.

33 See Prison Plan. St Helena, Moreton Bay, Penal establishment, Ground plan showing prisoners' cells,buildings, workshops, stockade fence, etc, 23 October 1894, QSA PD72.4.

34 See QPD, vol. 50, 6 October 1886, p. 1113. Whenever the prison population remained at an acceptablelevel, however, non-Europeans were kept separate from Europeans in the gaols at Mackay and Ingham, andthe lockups at Maryborough, Bundaberg and Townsville adopted similar strategies (see BI, pp. 737, 739,746, 747 & 753). By 1890, Thursday Island Gaol had been restructured to pennit the separation ofblack andwhite prisoners (see ARS, 1890, QVP, vol. 2, 1891, p. 80).

35 See "Rules and Regulations", 1892, p. 296. This directive confIrmed the anomalous position ofAboriginesand Islanders in the new scheme for classifying the inmates ofprisons. Its inclusion in the new rules andregulations suggested that Aborigines and Islanders actually constituted a ninth class of prisoner, when therewas nominally only provision for eight classes. At Mackay, overcrowding ensured that "coloured" prisonersoften had to be confmed with lunatics (see ARS, 1886, QVP, vol. 1, 1887, pp. 663).

Chapter 6: From 'Dispersals' to Confinement 296

purpose.36 This new regulation is evidence that apprehension about the psychological damage

inflicted upon these prisoners during long periods of separate confinement was stilI in

evidence during the 1890s, and affirms the influence ofthe attitude that association of

European with non-European prisoners would lead to dissension amongst the inmates.3? For

some gaolers, however, physical separation was not enough. When the 1887 commissioners

asked Henry Blaney, gaoler at Toowoomba, why he believed Asian prisoners should be

placed on a lower dietary scale than the one used for European prisoners, he replied: "Because

white men should be treated better than Asiatics".38

Even while engaged in work in the various prison industries the prisoners remained as

segregated as was practicable. One of the Queenslander's investigative journalists reported in

1901 that in the St Helena tailors' shop, "[a]t the end nearest to us nearly all the men are

coloured - Chinese, Aboriginals, Kanakas, &c. 'We make it a rule to keep all the blacks and

Chinamen together, ifit is at all possible,' says the tailoring expert, 'for the whites do not like

being closely associated all day with men of an alien race'''. 39 This spatial separation

contributed to a more general racial division of labour in the penal system in which the non­

European prisoners, especiaIly the Aborigines and Islanders, were delegated the least

d . bl' d . 40eSlra e mamtenance utles.

Aborigines, in particular, were not considered valuable labourers within the normal prison

regime and were often excluded from work in the various prison industries, especially prior to

the 1890s. For example, it was nearly always Aborigines and Islanders who were persuaded

36 Brisbane Truth, 17 March 1901. For more on racial segregation in colonial gaols, see Kerr, Out ofSight,Out ofMind, p. 99.

37 Trouble among the inmates ofTownsville Gaol in 1888 was attributed to "the herding together of a numberofprisoners of mixed races" (ARS, 1888, QVP, vol. 1, 1889, p.1182). The following year a newspaperreport highlighted the racial segregation ofprisoners in the gaol (see unknown Townsville newspaper, March1889, in visiting justice to Under Col Sec, 15 March 1889, QSA COL/A574 [2502]). A racial divisionappears to have been maintained later at Stewart's Creek Penal Establishment (see Townsville Daily Bulletin,21 February 1896) and at Brisbane Prison (see Queenslander, 26 September 1903).

38 BI, p. 1017.

39 Queenslander, 9 November 1901. For an example ofa prisoner refusing to work with an Aborigine, seeTurnkey's duty report book, HM Gaol, Townsville, QSA Al45924, 9 December 1892.

40 In 1879, it had been suggested that Aborigines should not be allowed to work as tailors as the skills theyacquired would not be ofbenefit to them upon release. They should be employed at some form ofhard workinstead (see QPD, vol. 30, 5 August 1879, p. 1098).

Chapter 6: From 'Dispersals' to COJlflnement 297

to perform the sanitary duties while in prison.41 It was no accident that "e" yard conveniently

played host to 8t Helena's cess-pit. A former inmate recalled the unhygienic ritual which

centred on this distinctive landmark:

[W]hat appears to me to be the most alarming phase in connection with thisfamous pit is the fact that the black boys make a bath of it! On almost any day ofthe week ... these fellows, generally aboriginals, can be seen displayingthemselves to full perfection in it.... There is a tap at one side for flushing. Thisthey call a 'shower' and when two or three of these boys are seen dancing a'corroboree' in this plague spot, the sight is simply sickening and revolting in theextreme. But at 8t Helena it is thought nothing of.42

In 1910 it was acknowledged that an Aborigine was performing the hardest jobs on the island

- including driving the night cart.43 There were, however, occasionally perquisites associated

with this form of labour in the form of a tobacco allowance and its associated bribery value (at

this time few prisoners received a tobacco ration):

The men, for the most part "swabs" (colored men), who do the sanitary cleaningup, are allowed a certain quantity of weed or "snout" or "nose", as it isvicariously denominated in the vernacular. The dirty, crawling smoodging that isdone to these men - who, whatever sort of crawlers they may otherwise be, arethe most popular men in gaol while they're "on the tubs" - is as degrading anddemoralising as it is disgusting.44

Nevertheless, in spite of this marginal elevation in status it would appear that a racial standard

was demanded, and to a large degree achieved, by the European prisoners whose adherence to

colonial notions ofracial incompatibility found expression behind prison walls. Racial

segregation was not simply a decree from above, but was a generally agreed upon principle

permeating the European prison population.45

41 Two Islanders were also employed driving the prison's tram car from the stockade to the jetty and silos (seeFinger, True Tales afOld St Helena, p. 12).

42 Truth, 17 March 1901.

43 See J. Lee to C-G, 11 April 1910, QSAPRIJA145 [1021]. In the mid-1890s, a gang of Aboriginalprisoners was used to transport cargo from the jetty to the penal establishment precinct (see St Helena diary,1895, JOL OM78-32, p. 131).

44 Brisbane Truth, 22 January 1911.

45 See Goffman's brief discussion of this aspect of an inmate's cosmology in Asylums, p. 36.

Chapter 6: Prom 'Dispersals' to Confinement 298

The Punishment of Islanders

Islander involvement in the penal process began soon after their introduction to Queensland as

indentured labourers in mid-1863.46 During the construction of the penal establishment at 8t

Helena, superintendent McDonald requested that the visiting justice authorise the transfer of

fifteen more men to the island to assist in clearing the mangroves.47In his communique he

singled out the Islanders for praise in performing this form oflabour and specifically

requested that as many of them as could be spared should be transferred. The Islanders could

scarcely have comprehended the activity in which they were engaged. The idea ofclose

confinement was something alien to their culture and few could have at that stage been forced

to endure such an ordeal. For the Islanders, transported to Queensland because of their skills

as efficient field labourers, it must have seemed peculiar that they were being made to assist in

the creation ofa structure that was to keep men in isolation from the outside world and where

labour retained only a perfunctory role.

By the late 1860s, the authorities had become well aware that Islanders were subject to the

same dangers as Aborigines when detained in solitary confinement for lengthy periods.48

Robert Arthur Johnstone, police magistrate at Bundaberg, declared at the 1887 Board of

Inquiry that the policy in his district was to sentence Islanders to periods of fourteen days

imprisonment in the lockup; any longer and their lives were considered to be in danger.49

Upon release they informed their countrymen oftheir punishment and it seemed to operate as

an effective deterrent to others. Fear ofdeprivation ofliberty was seen as an effective weapon

for ensuring that breaches ofcontract on the part of the indentured labourers remained

infrequent occurrences. In this way, the provision of an appropriate mode ofpunishment for

offences committed by Islanders and other indents was inextricably linked to the efficient

46 For histories of the labour trade, see, for example, Peter Carris, Passage, Port and Plantation: A History ofSolomon Islands Labour Migration, 1870-1914, Melbourne University Press, Melbourne, 1973; Moore,Kanaka; and Kay Saunders, Workers in Bondage: The Origins and Bases ofUnfree Labour in Queensland,1824-1916, University of Queensland Press, St Lucia, 1982.

47 Supt, St Helena, to the Visiting Justice, 26 June 1869, QSA COLlAll7 [2424].

48 Nevertheless, this conviction did not prevent the prolonged detention in Ayr lockup of two Islanders onremand for murder. The two were held for eighty-five days until an interpreter could be found to hear theirevidence (see BI, p. 754).

49 BI, p. 888. It was obvious from Johnstone's testimony that he regarded opium and alcohol as the majorcause ofcrime amongst the Islander population.

Chapter 6: From 'Dispersals' to Confinement 299

maintenance of the plantation economy.

Further evidence for this assertion may be found in the establishment of certain prisons in the

sugar manufacturing districts. The police gaol at Ingham was established after some local

planters complained to the Colonial Secretary, Samuel Griffith, about the expenses incurred

by the government and employers in transporting offenders to Townsville Gaol, and then

having to return them upon the expiration of their sentences.50 At Mackay too, in 1884, a

proposal was made to erect a "stockade" in the district so that local"aliens" convicted under

the Master and Servants Act would not have to be transferred to distant Townsville for

punishment.5l The need for a more effective means for disciplining indentured labourers

clearly led to the formation of gaols in the sugar manufacturing districts. There was a desire

to establish a form ofpunishment that was both an effective deterrent to labourers

contemplating absconding from their contractual obligations and one that could be operated as

a cost efficient measure. The overriding objective, however, was to ensure that the Islanders

would work for their employers and it was clear that prison sentences would be shortened or

waived if absconders demonstrated a genuine willingness to repent. 52

Arguments were also advanced in favour of increasing the severity of the prison regime for

Islanders convicted ofoffences against the Master and Servants Act in the hope that it would

prevent further instances ofabsconding. The directors of the Maryborough Sugar Company

complained to the colonial secretary in 1868 that twenty-one of their labourers were being

maintained on first class rations while under confinement in the Maryborough lockup.

Concerned that the men would become accustomed to gaol life and refuse to work upon

returning to the plantation, the Company urged the government to make their sentence as

50 See the testimony of C.B. Pennefather, then police magistrate in the Ingham district, in BI, p. 981 (see also,BI, p. 739). The gaol at Ayr was also erected to cope with the vast increase in the number ofIslander andMalay offenders from the neighbouring plantations (BI, p. 739).

51 T.H. Fitzgerald (JP), et aI, to Col Sec, 1 July 1884, QSA COL/A395 [5019]. Townsville Gaol itself wasexperiencing a major overcrowding problem that was exacerbated by the constant admission of indentsconvicted under the Masters and Servants legislation (see visiting justice, Townsville Gaol, to Col Sec, 26February 1885, QSA COL/A417 [1528]).

52 When twelve men from the island ofLifu were sentenced to three months in Rockhampton Gaol (despitebeing subjected to employment conditions contrary to their agreement), the Colonial Secretary stated that aGovernor's pardon would be forthcoming if the men chose to overlook their grievances and return to work(see Police Magistrate, Mackay, to Col Sec, 19 August 1874, QSA COL/A198 [1951]).

Chapter 6: From 'Dispersals' to Confinement 300

harsh as possible.53

Distance again became a factor in the 1890s, when the management of the Colonial Sugar

Refining Company's Goondi plantation at Geraldton (now Innisfail) became dissatisfied with

the arrangements for releasing contracted Javanese labourers who had undergone sentences of

imprisonment in Townsville Prison.54 Unhappy with the length of time it took for the men to

return, and fearful that increasing numbers would choose to ignore their contractual

obligations and seek employment elsewhere, the Company offered to pay for the labourers'

transportation back to their workplace. The local police opposed the proposal and the

Colonial Secretary, Horace Tozer, was forced to adjudicate. Tozer favoured the position of

the police, although he obligingly instructed the superintendent of the prison not to release the

men until a steamer was in port and to ensure that they were placed on board.

Other colonial industries employing indentured labour witnessed similar events. For example,

in 1881 the Thursday Island police magistrate was forced to investigate when complaints were

heard from Jervis Island (now Mabuiag) about the alcohol-induced disorder that occurred

there every Saturday night when shelling crews converged on this popular rendezvous point to

camp for the night.55 Dominated by economic concerns, the ship owners were loath to

discipline their crews, fearing that the divers would respond by retrieving less shell in protest.

The magistrate suggested that a lockup be established there with a staffof two police

constables so that offenders could be detained on the island rather than removed to Thursday

Island for punishrnent.The provision ofa place ofpunishrnent was therefore a state measure

designed to mediate between regular outbreaks oflawlessness and a profitable shelling

industry. The occasional incarceration ofminor offenders was implemented to act as an

effective measure of control over the workforce, while at the same time tolerating their right

to indulge in leisure pursuits.56 Despite calls to prohibit indents working within the industry

53 See H. Palmer, Chairman ofMaryborough Sugar Company, to Col Sec, 28 November 1868, QSACOLlA114 [3889] (for further details see also PM Maryborough to Col Sec, 26 January 1869, QSACOLlA117 [0351]. For details of the court case against the Islanders see Maryborough Chronicle, 24October 1868. At that time, conditions in the lockup were already quite severe with the Islanders beingconfmed ten to a single cell and having to contend with the suffocating stench of the lockup's effluvia.

54 See Charles Forster to Parbury, Lamb and Co, 13 May 1892, QSA PRIlA4 [1528].

55 Some twenty or thirty boats operating in the Torres Straits used the Island as a meeting point (PoliceMagistrate, Thursday Island, to Col Sec, 25 April 1881, QSA COLlA312 [1932]). For a history of the pearl­shell and beche-de-mer industries, see Ganter, The Pearl-Shellers ofTorres Strait.

Chapter 6: From 'Dispersals' to Confinement 301

from consuming alcohol, the authorities did not respond by altering the relevant legislation.57

These events demonstrate how economic imperatives - in this case, the desire for an efficient

labour force - may influence the objectives and practices ofpunishment. They highlight how

processes in the development of a colonial penal system can be mediated by the broader

aspiration of disciplining an indentured labour force. The labour repressive characteristics of

Queensland's sugar industry clearly exerted some influence on the development ofthe

colony's penal system. In this way, the establishment ofa penal apparatus in the sugar

manufacturing districts bears some resemblance to the history ofpunishment in the southern

states ofAmerica, and suggests the utility ofRusche and Kirchheimer's labour market thesis. .. 58m certam CIrcumstances.

It is clear from the evidence heard during the Board of Inquiry and from the aforementioned

events that there were two, somewhat contradictory, theories held by government officials and

settlers regarding the attitude ofIslanders to imprisonment. To some, they were regarded as

inherent malingerers who would prefer the idleness ofprison life to performing contract work

for European planters; to others, they were highly susceptible to the demoralising effects of

prolonged imprisonment in close confinement. It was a contradiction in opinions also

reserved for Aborigines. The dichotomy found expression in inconsistent penal policies that,

on the one hand, promoted the practise ofputting prisoners to work on the roads or reducing

their rations to prevent them from becoming accustomed to prison life or, on the other, called

for the imposition ofshort, fourteen day sentences for the majority ofoffences committed by

indigenes. The 1887 commission was to conclude that it would be unwise simply to deport

Islander offenders and thereby deprive their employers of the services they were contracted to

provide, but that they should be kept strictly separate and at hard labour.59 A special dietary

56 For details of the incident see Police Magistrate, Thursday Island, to Col Sec, 25 Apri11881, QSACOL/A312 [1932].

57 The 1880 Pacific Island Labourers Act prohibited any person from supplying Islanders with fermented orspirituous liquor, although it did not make illegal the consumption of such liquor on the part of indents. For adiscussion, see Moore, "'Me Blind Drunk''', pp. 2-3.

58 For a useful discussion of the historiography ofthe development ofpenal systems in America's south, seeWeiss, "Humanitarianism, Labour Exploitation, or Social Control?", pp. 341-50. For a good recent studythat focuses on the state ofGeorgia, see Alex Lichtenstein, Twice the Work ofFree Labour: The PoliticalEconomy ofConvict Labour in the New South, Verso, London, 1996.

59 BI, p. 699.

Chapter 6: From 'Dispersals' to Confinelnent 302

scale was also recommended that included a large amount of rice and a very small portion of

meat.

As already mentioned in chapter two, the 1887 board of inquiry found that Queensland's

northern gaols were largely populated by non-European prisoners and it would be safe to

assume that, for the majority of this class of offender, it was incarceration in these institutions

that characterised their experience ofpunishment in the colony.6D For the bulk of the Islander

population it was the gaols and lockups in the sugar manufacturing districts or those located in

the northern coastal towns that received offenders usually serving sentences ofless than

fourteen days.61 Conditions in these gaols were very often poor. Overcrowding

predominated, sanitation was inadequate and there were invariably structural deficiencies in

each of the institutions.62 In 1886, for example, the press regularly drew attention to the fact

that there were no bathing facilities for the prisoners in Mackay Gaol and that twenty-seven

prisoners were being kept in accommodation designed for ten.63 Such deficiencies were the

inevitable consequence ofconverting police lockups into gaols as the small populations in

Queensland's distant localities gradually increased.64

One of the dangers of such poorly constructed prisons was the opportunity for prisoner revolt.

60 At Mackay, for example, most of the prisoners were Islanders, with Cingalese, Malays and Aborigines alsoregularly included in the inmate population (see BI, p. 737, and Clive Moore, "The Mackay Prison: 1888­1908", Journal ofthe Royal Historical Society ofQueensland, vol. 13, no. 9, 1989, p. 329). The number ofthese prisoners confmed in the gaol can be gauged from the punishment register kept by the gaoler from 1886to 1898 (see Punishment Register, HM Prison, Mackay, 1891-1902, QSA A/45942, pp. 1-29). The mostfrequent offences for which these prisoners suffered punishment were disobedience, misconduct, malingeringand spitting in the cells.

61 For sentences exceeding this duration Townsville Gaol or, from 1893, Stewarts Creek Penal Establishmentwould have been the most common place ofdetention.

62 See Arthur Halloran's damning statement in ARS, 1884, QVP, vol. 1, 1885, p. 538. As well as labouringunder these poor conditions, non-Europeans were occasionally forced to endure physical abuse from thewarders. In 1891, for example, a warder at Roma Gaol was accused of "brutally and savagely" assaultingJimmy Bob, an Islander (see T. North to Sheriff, 24 October 1891, QSA PRVA42 [3151]).

63 Mackay Mercury, 21 September 1886. Following the community agitation, a bath was eventually built byprison labour, see Mackay Mercury, 2, 5 & 14 October 1886. The matter was also raised in parliament (seeQPD, vol. 50, 6 October 1886, pp. 1111-7)

64 The events in Mackay served to expedite planning for the construction of a new gaol on the outskirts of thetown (see Mackay Mercury, 7 October 1886). It was eventually completed in 1888 (see Moore,' "TheMackay Prison", pp. 329-30). With the opening of Stewart's Creek Penal Establishment in 1893, the newprison was abandoned and the local lockup was converted into a small prison. For a rough plan ofMackayPrison as it was in 1920, see Prisons Department, Special Subject Batches, Mackay Prison, 1909-1935, QSAA/45806/1.

Chapter 6: From 'Dispersals' to Confinement 303

One such incident occurred at Mackay Prison in 1903, when Sow Too Low, an Islander on

remand for the murder of a woman at nearby Habana Plantation, seized a wood-chopping axe

during exercise time and struck a prisoner on the head, killing him instantly.65 The lockup

keeper attempted to intervene but was surprised by the assailant and met with an identical fate

to the prisoner. Eventually, the malefactor was subdued, and he was later executed at

Brisbane Prison.66 Rather than ask any searching questions about the state ofprison discipline

and security, the press focussed most of its attention upon the racial background of the

offender.67 The Truth's report of Sow Too Low's execution, under a typically alliterative sub­

title, "A Planter's Polynesian Pet Pays the Penalty", stands as a particularly colourful

example.68 The article went on to support the often cited opinion that the unusually large

number of unsolved murders in the sugar manufacturing districts had actually been committed

by Islander indents.69 Sensational incidents, like Sow Too Low's murderous rampage, fit

neatly into the racial stereotypes that predominated in Queensland during the period.

Throughout the nineteenth century, attitudes towards Aborigines underwent a gradual

transformation that included the erosion of ideas like the 'noble savage' and the advancement

of racialist images of inferior creatures occupying the lower links in the 'Great Chain of

Being,.70 Indeed, the sharp contrast between images ofsavagery and civilisation lay at the

65 The incident occurred on 29 March. For a report, see Telegraph, 3 April 1903. For the inquestdepositions, see C. Porter to C. Pennefather, 1April 1903, PRIlAI02 [1248].

66 Brisbane Courier, 23 June 1903.

67 The inquiry by the Prisons Department found that the axe should not have been so easily accessible to theprisoner. The superintendent had been cautioned that Sow Too Low could be dangerous (see A.B. Gibson toUnder Sec, Department ofJustice, 4 May 1903, PRIJA103 [1651]).

68 Truth, 28 June 1903. See Superintendent, Brisbane Gaol, to C-G, 22 June 1893, PRIlAI04 [2003], forSow Too Low's execution notice.

69 Other examples of this opinion maybe found in QPD, vol. 83,7 December 1899, p. 1178. Even in thefederal government debates over the deportation of the Islander population this view was further perpetuated,see Parliamentary Debates, Commonwealth ofAustralia (CwPD) (Senate), vol. 12, 10 September 1902, pp.15855-6.

70 See, for example, Charles Dickens' disparaging comments in his article, "The Noble Savage", HouseholdWords, vol. 7, no. 168, 11 June 1853, pp. 337-9. See also Henry Reynolds, "Racial Thought in EarlyColonial Australia", Australian Journal ofPolitics and History, vol. 20, no. 1, 1974, pp. 45-53; his editedvolume, Dispossession: Black Australians and White Invaders, Allen & Unwin, Sydney, 1989, ch. 4;Markus, Australian Race Relations, ch. 1; and Evans, Fighting Words, esp. pp. 41-4, 153-4 and 204-9. MarkFrancis has recently argued against the tendency for historians to interpret the development of racialistideology in late-colonial and post-colonial Australia as dependent upon the concept of social-Darwinism (see,"Social Darwinism and the Construction ofInstitutionalised Racism in Australia", Journal ofAustralianStudies, no. 50/51, 1996, pp. 90-105). For contemporary examples, see Brisbane Courier, 19 November

Chapter 6: From 'Dispersals' to Confinement 304

basis ofthe European rationalisation for the processes ofdispossession and colonisation.7!

Images ofAborigines as wild beasts with insatiable appetites for immoral activities, and

lacking in the virtue of self-control, were increasingly deployed in colonial parlance.

Similarly, attitudes towards the Chinese had graduated from an "amused curiosity" at the

onset of the gold rushes to opinions which reflected grave concerns about these unwanted

immigrants as they struggled to establish themselves as competitors with white labour.72

Inherent in these racial stereotypes were notions ofnon-Europeans as being more criminally­

inclined than their white superiors, with comparisons occasionally being made with the

European criminal class.73 On this matter, the Evening Observer asked, "Ifany man is to be

regarded as an instinctive criminal, should not the man who is scarcely removed by a single

generation from untutored savagery, from cannibalism, from the doctrine that might is right,

from nameless brutalities to women, be so regarded?".74 It necessarily followed from these

beliefs that a greater propensity for immoral behaviour would result in a higher frequency of

lawlessness amongst these people, and the colonial newspapers were thus saturated with

exaggerated reports ofnon-European crime.75 The product of this activity was that it left

many in Queensland in fear not only of the Aboriginal rapist, but also ofthe walk-a-about

kanaka, the Chinese opium smoker, the Japanese prostitute and the crazed Malay.

Consistent with this broader process ofchange, attitudes towards the Islander labour force

began to undergo a similar transformation during the late 1880s.76 Joining the urban liberal

bourgeoisie, long an opponent of the labour trade, an organised and vocal labour movement

1874, and Queenslander, 2 November 1889.

71 See Evans, et ai, Exclusion, Exploitation and Extermination, pp. 67-8.

72 Andrew Markus, Fear and Hatred: Purifying Australia and California 1850-1901, Hale & Iremonger,Sydney, 1979, pp. 237-42.

73 Evans, et aI, Exclusion, Exploitation and Extermination, p. 74.

74 Evening Observer, 26 April 1892.

75 See especially the numerous articles in labour movement periodicals like the Boomerang, Progress or theWorker. In its series, "In Darkest Queensland", Progress focused in some detail on non-European crime (see,for example, 11 & 25 February and 1899). Other journals like Queensland Figaro, Punch and Truth werejust as sensational in their reporting style.

76 See especially, Saunders in Evans, et aI, Exclusion, Exploitation and Extermination, ch. 7.

Chapter 6: From 'Dispersals' to Confinement 305

began to campaign against the presence of 'savages' in the colony.77 In this increasingly

hostile environment, both public and government attention came to be focussed upon the

criminal activity of the Islander population. As well as the more sensational crimes of rape

and murder, dramatic outbreaks of violence - often the result of alcohol supplied illegally to

Islander labourers - were frequently reported in the press and investigated by the authorities.78

Racial stereotypes were again employed to emphasise the potential dangers these 'aliens'

posed to colonial society.

There had long been concern about the numbers ofpotential criminals that were unwittingly

being imported into the colony, but as racial antipathy reached fever pitch around the tum of

the century,79 the Islander prison population was thrust even further into the limelight.80

Untiring in his campaign to rid Queensland of the Islander 'menace', Vincent Lesina was often

the chiefprotagonist in debates about the number ofconvicted Islanders in the colony/state's

prisons, calling on a reluctant Government to supply details of the criminal convictions of

"coloured alien" offenders.8! The annual statistics generated by the Prisons Department

strongly suggested that Islanders were over-represented in criminal convictions, though there

was scarcely any rational discussion of the numerous mitigating circumstances contributing

77 It should also be noted that by the 1890s many Islanders had left the isolated plantations to seek work inurban areas, thereby increasing their visibility in colonial society (see Finnane and Moore, "Kanaka Slaves orWilling Workers?").

78 For government inquiries see, for example, Police Commissioner to Col Sec, 13 February 1883, QSACOLlA354 [0721]; Police Magistrate, Geraldton, to Col Sec, 20 September 1888, QSA COLlA565 (9972];and Police Magistrate, Ingham, to Under Col Sec, 2 July 1890, QSA COLlA621 (7457]. In 1887, theBundaberg Police Magistrate claimed that "the facilities for obtaining grog from dishonest persons has beenincreased, rather than reduced" (see T. Pugh to Under Col Sec, 14 December 1889, QSA COLlA601(11130]). For a discussion of the impact of alcohol on the Islander population, see Moore, "'Me BlindDrunk"', pp. 1-27.

79 Andrew Markus has identified the period 1898 to 1901 as witnessing the most intense levels of anti­Islander hysteria, see Fear and Hatred, p. 249.

80 The 1887 inquiry had noted the high number ofnon-Europeans amongst the prison population (see BI, p.699). Earlier, in 1884, a return for the previous ten years ofall Polynesians, Cingalese, Maltese, Malays andChinese convicted under the Master and Servants Act and sentenced to tenns of imprisonment was called for,along with the number ofPolynesians convicted of capital offences and felonies (see Clerk of the LegislativeAssembly to Col Sec, 17 January 1884, QSA PRlI28 (0077]; and QVP, 1883-4, pp. 1449-51).

81 QPD, vol. 82, 10 October 1899, pp. 309-10, and 3 November 1899, p. 787; and QPD, vol. 83,16November - 20 December, 1899, pp. 1032-5, 1172-82, and 1502. Lesina again attempted to embarrass thegovernment in 1901 when he made further inquiries about the "coloured aliens and half-castes" occupying thestate's prisons (see QPD, vol. 87, 21 August 1901, pp. 441-8; and QPD, vol. 88, 5 December 1901, p. 2256­9).

Chapter 6: .From 'Dispersals' to Confinement 306

towards the imbalance.82 Yet concern about the issue clearly extended beyond the

Queensland border. In the newly-formed federal parliament a return was called for which

would show the number of serious and minor crimes committed by "kanakas" and "white

males" in Queensland, and the number of serious crimes that remained unsolved. 83 The

statistics were scrupulously tabulated by Pennefather and presented to the House in January

1902.84 Little discussion was provoked by the return, however, and it is difficult to estimate

how influential it was to become in the debates over the issue of Islander deportation.

There may have been a reluctance on the part of the Queensland government to publicise

statistics featuring Islander criminal convictions at a time when the future of the labour trade

was being so hotly contested, but it had in the past been concerned enough to collate certain

intelligence along these lines for use in-house.85 In 1896, Pennefather inquired into the case

of each Islander then imprisoned in Queensland and prepared a dossier containing his

opinions on each offender.86 He concluded that these men only understood "the law of

strength" and it would be unwise to deport them before they had served significant portions of

their sentences; otherwise, their countrymen would begin to think that European law could be

flouted. Despite his recommendations, however, the government was more concerned about

the burden ofcost incurred in maintaining these men in Queensland's prisons.

Imprisonment may have been a useful technique for ensuring compliance amongst the

Islander labour force, or for allaying settler fears concerning the threat ofIslander

82 See, for example, ARC-G, 1900, QVP, vol. 4,1901, pp. 1018-9. Eventually, attention was drawn to thefact that most of the Islanders were adult males, and if they were compared to white adult males, rather thanthe entire white population, then the percentage did not appear significantly high (see, for example, theSupply debate on the Prisons Department in QPD, vol. 88,22 October 1901, pp. 1392-3).

83 CwPD (House ofRepresentatives), vol. 3, 26 July 1901, p. 3150.

84 CwPD (House ofRepresentatives), vol. 7, 15 January 1902, p. 8802.

85 A return ofIs1ander crime for the ten years ending December 1895 had been calculated for the Bishop ofMelanesia, no doubt concerned at the prospect ofreceiving convicted offenders sent back to their islands (seeReturns ofPolynesian Islanders serving sentences, 1886-1899, Prisons Department, QSA PRI/8). Two yearsearlier, a return of alien prisoners was prepared for the Colonial Secretary by Pennefather (see CoG toPrincipal Under Sec, 6 February 1894, QSA COLlA760 [1476]).

86 CoG to Under Col Sec, 30 June 1896, QSA COLlA806 [8654]. Interestingly, twenty-one of the twenty­four prisoners mentioned were recruited from the island of Malaita, renowned for the aggressiveness of itspeople and frequency of inter-tribal conflict. In this year, the issue of non-European representation inQueensland's prisons was briefly discussed in parliament (see QPD, vol. 76, 30 September 1896, pp. 1027­9).

Chapter 6: From 'Dispersals' to Confinement 307

depredations, but it certainly was not perceived as a method for refonning these wayward

'aliens,.87 Unwilling to assume responsibility, in spite ofa general recognition that Islander

crime was a problem resulting from the labour trade itself, the colonial authorities frequently

chose to adopt a policy of 'out of sight, out of mind'. From the late 1860s, men were deported

as soon as they began to pose problems for the authorities by either committing criminal

offences or exhibiting the symptoms ofmental illness.88 In cases of serious felonies, token

sentences of imprisonment were often imposed, and the offenders were only required to serve

small portions of these sentences before being deported to their native islands. Harry

Aramora and Peter Ambryn, each convicted of murder and sentenced to periods often and

five years imprisonment respectively, were transported home to their islands only three

months after being convicted.89 Cases like these were not unusual, gradually increasing as the

campaign to have Islander labour excluded from Queensland gained momentum. Four of the

Malaitans mentioned by Pennefather were deported six months after his report was submitted

to the government - he had initially recommended that they were not yet ready for release.9o

After the decision in 1901 to repatriate the vast majority ofIslanders residing in Queensland

by the close of 1906, it was decided to reserve number eight yard at Stewart's Creek Penal

Establishment for the volume of Islander prisoners expected as a result of the decision.91

Ultimately, there was little need for concern as the deportees' exit proceeded without drama

87 Although, Pennefather did argue that imprisonment would ensure that the "Malayta boys will become asdocile and obedient to the laws of the country as other Islanders employed on the plantations are" (see C-G toUnder Col Sec, 30 June 1896, QSA COL/A806 [8654]).

88 See, for example, the case ofan Islander convicted of vagrancy who had at one time been wounded by thepolice and as a result began to exhibit signs of insanity (Immigration Agent to Col Sec, 23 September 1869,QSA COLIA132 [3606]). The Woogaroo Lunatic Asylum received a number ofIslanders who wereeventually returned to their island following briefperiods of institutionalisation (see, for example, WolstonPark Case Books, 1897-98, QSA Al45630, p. 16; 1898-99, QSA Al45632, pp. 74, 95 & 142; 1905-06, QSAAl45645, p. 111). It was a fate that was experienced by other non-European peoples. In 1880 fourteenChinese inmates of the asylum were deported to China (see Supt, Woogaroo Lunatic Asylum, to Col Sec, 14July 1880, QSA COL/A296 [3919].

89 C-G to Under Sec, 8 November 1905, QSA PRIlA116 [2701]. See also, Immigration Agent to PrincipalUnder Sec, 23 March 1895, QSA COL/A791 [3386]; and Supt, Mackay Prison, to C-G, 22 November 1897,QSA PRIlA64 [3400].

90 Under Sec to C-G, 4 February 1897, QSA PRIlA60 [0333]; and C-G to Under Col Sec, 26 June 1896,QSA COL/A806 [8654]. The Commissioner of Police directed that all criminal Islanders deported fromQueensland should have their photographs taken "as nearly nude as possible" so that copies could beforwarded to government agents and police stations, thus preventing any future return to the state (seeCircular memorandum no. 231, Police Department, Commissioner's Office, 25 May 1897, QSA POL/J35[6573]).

91 C-G to Supt, Stewart's Creek, 22 September 1905, QSA PRIlA115 [2429].

Chapter 6: From 'Dispersals' to Confinement 308

and there was no perceptible increase in the prison population.92 It is ironic that while the

Queensland government was vehement in its opposition to the French method ofdeporting its

recidivist criminals to New Caledonia, where they could easily escape and travel to

Queensland, it began its own policy ofdeporting dangerous criminals back to the nearby

islands.93 Little thought was given to the potential repercussions in the islands ofreturning

such men.

Incarceration, Welfare and the Reserve System

From separation, the Queensland government was content with a small number ofconvicted

Aboriginal offenders regularly being confined within its prisons, and no formal penal

institution was ever established to function along the lines of Rottnest Island in Western

Australia.94 The informal allocation of justice' on the frontier ensured that the confinement of

Aboriginal criminals would remain a minor inconvenience for Queensland's penal

administrators. There was, however, recognition that the persistent problem ofhow to deal

with Aboriginal criminals could not be resolved by imposing terms ofimprisonment upon

offenders and then simply releasing them following the expiration of their sentences. The

situation was set to change with the establishment ofa system ofAboriginal "protection" in

the closing years ofthe nineteenth century.

In 1897, the Queensland government passed its Aboriginals Protection and Restriction ofthe

Sale ofOpium Act. The Commissioner of Police, W.E. Parry-Okeden, was placed in charge

ofadministering the Act, with Archibald Meston as Southern Protector and Walter Roth in

charge of the northern regions. 95 Touted as a humanitarian gesture on the part ofthe

92 See Peter Corris, "'White Australia' in Action: The Repatriation of Pacific Islanders from Queensland",Historical Studies, vol. 15, no. 58, 1972, p. 247. Mercer has demonstrated that a few reluctant Islanders wereincarcerated in Mackay Prison prior to deportation (see White Australia Defied, p. 96).

93 On the attitude of the Queensland government to the French decision to transport recidivists to its NewCaledonian territory and the subsequent problem ofescapees travelling to Queensland, see Clem Lack, "TheProblem of the French Escapees from New Caledonia", Journal ofthe Royal Historical Society ofQueensland, vol. 5, no. 3, 1955, pp. 1046-65.

94 In 1838, Rottnest Island was established as a penal institution solely for the incarceration of Aboriginalinmates. It was fmally closed in 1903 after allegations were made in the report ofthe 1898-99 royalcommission into the penal system that it was ill-equipped to deal with Aboriginal prisoners ("Report of theCommission appointed to inquire into the Penal System of the Colony", pp. 24-5).

95 "Condition of the Aborigines. Report of the Commissioner of Police on the Working of "the AboriginalsProtection and Restriction of the Sale ofOpiurnAct, 1897", QVP, vol. 4,1898, p. 499. See also Meston's

Chapter 6: From 'Dispersals' to Confinement 309

government, the legislation formalised the process ofgathering the remaining Aborigines in

the colony together to segregate them on state-run reserves or denominational missions. All

full-blood Aborigines and all those with mixed-blood who were living with, or as, Aborigines,

or under sixteen years ofage, were subject to its provisions. It was argued that the move was

in the best interests of an indigenous population that had long suffered under the weight of

settler depredations, introduced disease, starvation, dislocation and a host ofother evils

precipitated by European colonisation. However, it has been well documented that, despite its

intentions, the Act rarely promoted the best interests ofAborigines.96

Established just prior to the introduction of the 1897 legislation, the Fraser Island Aboriginal

settlement (Bogimbah) became the first ofQueensland's Aboriginal settlements to come under

the control of the new administration.97 Originally established to accommodate the last

surviving Aborigines scattered throughout the south east comer of the colony, the Fraser

Island settlement became the first designated reserve in accordance with the 1897 legislation

and was closely followed by similar institutions at Deebing Creek (previously gazetted as an

industrial school near Ipswich) and Durundur (some fifteen miles from Caboolture) and

Barambah (near Murgon).98 Each of these reserves was under the control of a superintendent,

although Meston possessed ultimate control acting in his capacity as Southern Protector.99

While the Fraser Island reserve has already attracted the detailed attention ofa number of

historians who have been concerned with its role as a blueprint for later institutions, there is

still a need to investigate more deeply its implications for a study ofpenality in the100Queensland context.

initial suggestion that protectors be appointed in A. Meston to Col Sec, 27 June 1895, QSA COLlA793[7395J.

96 See especially Evans' discussion in Evans, et aI, Exclusion, Exploitation and Extermination, ch. 8 andconclusion; and Kidd, The Way We Civilise, ch. 3.

97 Evans and Walker, "These Strangers, Where Are They Going?", pp. 73-9.

98 See Archibald Meston's memorandum entitled "Measures Recently Adopted for the Amelioration of theAborigines", QVP, vol. 2, 1897, pp. 43-4; W.E. Parry-Okeden's report on the "Condition ofthe Aborigines",QVP, vol. 4, 1898, p. 499; and Kidd, Regulating Bodies, pp. 76-82. Both Deebing Creek and Durundur hadbeen temporarily gazetted as reserves from 1877-80.

99 For details of the career ofMeston see, William Thorpe, "Archibald Meston and Aboriginal Legislation inColonial Queensland", Historical Studies, vol. 21, no. 82,1984, pp. 52-67.

100 Evans and Walker, "These Strangers, Where Are They Going?", pp. 39-105; Raymond Evans, 'APermanent Precedent': Dispossession, Social Control and the Fraser Island Reserve and Mission, 1897­1904, Ngulaig Monograph, no. 5, Aboriginal and Torres Strait Islander Studies Unit, University ofQueensland, Brisbane, 1991; and Rosalind M. Kidd, Regulating Bodies, pp. 222-38.

Chapter 6: From 'Dispersals' to Confinement 310

One of the features of Roth's involvement in the administration of Aborigines in Queensland

was his role in establishing a system whereby detailed records of all Aborigines punished for

criminal offences were to be scrupulously maintained. In 1901, he corresponded with the

Under Secretary of the Home Office:

I have the honour to ask you to kindly request the Commissioner ofPolice toinstruct the various Northern Police Protectors to forward me brief particularsmonthly as matters of aboriginal interest (which are already required of them bythe Regulations) of all charges and offences in connection with the aboriginals intheir respective districts. The special statistics which I could thereby tabulatewould prove very valuable from both criminological and sociological points ofview, and form an accurate record of what is really going on. At present, Ireceive no information re charges of supplying alcohol or opium (except perhapsin my immediate neighbourhood) beyond what I see in the various newspapers:and I may mention, that in the aboriginal murder case tried at Cooktown about 6weeks or so ago, I knew nothing of the matter until the trial was over. IOl

As well as offences against Aborigines, he was also determined to accumulate information on

offences committed by those under his management and began to record his findings in the

annual reports ofhis department, 102 At this point, interest in the criminal behaviour of

Aborigines evolved into a more rationalised and bureaucratised feature ofthe administration

of the Aboriginal population generally. The developing regulatory bureaucracy, comprising

the co-operative workings of the agencies ofpolice, judiciary, penal system, and the Protector

of Aboriginals Office, was to ensure that a close watch on 'delinquent' Aborigines would be. . d 103mamtame .

As well as recording the particulars ofAboriginal criminals, Roth also began the practice of

deporting the most troublesome of this class to the Fraser Island reserve. 104 Finally, after a

101 Dr W. Roth to Under Sec, 5 Jillle 1900, QSA AJ58786, Aboriginal Crime and Deportation.

102 List the years in which these appeared and mention that Bleakley continued the tradition.

103 By the late 1920s the system had matured into one where separate records were kept by the Protector ofAboriginals on the criminal records ofAborigines (see ChiefProtector ofAboriginals Office. Card Index ofPrisoners, 28 Sep 1926 - 19 Nov 1936, QSA A/58972/4).

[04 The practice of forcibly transferring Aborigines aroillld the colony had occasionally been employed beforethe turn of the century. For example, after an appeal from a local settler in 1879, the Coloma1 Secretaryapproved the removal of an inebriate Aborigine serving a four month sentence for theft to a remote stationwhere he would be illlable to procure alcohol (see A. McDowall to Col Sec, 5 May 1879, QSA COLlA277[1757]). The process of deporting Aboriginal prisoners to Bogimbah has been briefly discussed in Evans, fAPermanent Precedent', pp. 19-20; and Evans and Walker, "'These Strangers, Where Are They Going?''', p.83.

Chapter 6: From 'Dispersals' to Confinement 311

quarter ofa century, it seemed that the recommendations of the 1874 commission would be

put into practice. In sanctioning this procedure, he believed that he was acting to alleviate the

problem ofcriminal activity among Aboriginal people:

I am '" strongly impressed that the so-called 'crimes' committed as a rule in theexercise of ... tribally-recognised laws and customs, and committed by blacks onblacks, should be dealt with rather by an organised system of expatriation than bythe verdict of a jury.... I, therefore, shortly propose making arrangementswhereby all such time-expired aboriginal prisoners shall be effectually preventedfrom getting back to their native countries. lOS

In other words, Aborigines engaging in reprisals sanctioned by tribal laws would no longer be

ignored, but would become subject to executive as well as judicial punishment for their

actions. From the surviving records it would appear that it was on Roth's own initiative that

this practice was resorted to, and it does not appear that Meston was as greatly concerned

about 'dangerous' Aborigines as he was with simply gathering the last of the south eastern

remnant onto reserves. 106 Indeed, the Southern Protector was extremely critical ofwhat he

perceived as Roth's carefree attitude with regards to the deportation of Aborigines. 107

Nevertheless, Meston himselfwas certainly responsible for some early removals of ex­

prisoners exhibiting "criminal tendencies". 108

As a response to this practice, the original 1897 Act was amended by parliament in 1901 to

authorise the deportation ofAborigines from one district to another. 109 Home Secretary

Foxton explained that it frequently became necessary for the protection ofboth whites and

105 "Report of the Northern Protector of Aboriginals for 1899", QVP, vol. 5, 1900, p. 591.

106 Meston claimed in the Daily Mail, 21 October 1905, that in his jurisdiction he had not found it necessaryto deport dangerous Aborigines.

107 See A. Meston to Under Sec, Public Lands, 5 October 1903, QSA A/58930. Extracts from these lettersappeared in the Daily Mail, 21 October 1905. The friction between the two was later to provoke a questionin parliament about the practice of deporting unconvicted Aborigines in chains. The response from theSecretary for Public Lands, J.T. Bell, confIrmed the procedure was taking place under the provisions of the1897 Act, and was adamant that no inquiry was needed (see QPD, vol. 95, 10 October 1905, p. 1070).

108 Two men (possibly the fIrst) were deported before August 1897. See A. Meston to Under Sec, 18 August1897, QSA COL/483a [10718]. In his annual report for 1902 Meston noted that thirty-eight time-expiredAboriginal prisoners had been placed under his authority, along with an extra twelve men who had not beenconvicted but who had been suspected of committing crimes ("Report of the Southern Protector ofAboriginals", QPP, vol. 1, 1902, p. 1178).

109 The Aboriginals Protection and Restriction ofthe Sale ofOpium Act, 1901, s. 3.

Chapter 6: From 'Dispersals' to ConfInement 312

indigenes alike to remove dangerous Aborigines from one district to another. 110 He then

proceeded to give the impression that the provision had been included more for the protection

oflocal Aborigines, rather than as a preventative measure to deal with any threat to the

European population. His explanation must have been generally accepted, as it would appear

that no member ofparliament thought it necessary to question the legality of a procedure that

allowed for the detention of an Aborigine in a distant localityfollowing the expiration ofa

term of imprisonment, or even in circumstances where no formal conviction had been

obtained. Nor were there any recriminations regarding the retrospective nature of the

legislation. III The fact that a number ofdeportations to Fraser Island had already been

effected prior to 1901 was not raised. lI2

The surviving evidence relating to the deportations would suggest that it was regional settler

interests that provided the most significant motivation in deciding whether an Aborigine

would be "expatriated" or not. The potential threat that any incorrigible offender posed to his

community provided the impetus for deportation in only a minority ofcases. The removal of

one "old offender", regarded by the local settlers as "nothing else but a black bushranger", was

motivated as much by the desire to set an example to the Aborigines in the region as it was by

his individual criminal activities. I 13 In another case, the authorities wanted to deport an

Aborigine following his term of imprisonment in Stewart's Creek as he would be regarded as

a hero ifallowed to return to his native Geraldton. 114 Others were transported despite having

no convictions against them and never having been arraigned to appear in a court room. For

110 QPD, vol. 87, 3 September 1901, pp. 693-4. See Roth's comments on the new power which clearlyindicate that deportation was intended for use only in circumstances in which the offender was criminallyinclined or somehow dangerous (QPD, vol. 87, 3 September 1901, pp. 1137-8).

111 The 1897 Act clearly states that Aborigines could be removed from one locality to another in the samedistrict, or between reserves. It does not mention transporting Aborigines from one district to another in thecolony (see The Aboriginals Protection and Restriction ofthe Sale ofOpium Act, 1897, s. 9).

112 At least sixteen were transported south during 1900 and 1901 (see "Annual Report ofthe NorthernProtector ofAboriginals for 1900", QVP, vol. 4, 1901, p. 1337; and "Annual Report of the NorthernProtector of Aboriginals for 1901 It, QPP, vol. 1, 1902, p. 1140). Meston claimed that by October 1903 sometwenty-one men had been deported from the north (Daily Mail, 21 October 1905).

113 W. Roth to Under Sec, 7 February 1901, QSA A/58786. It was a policeman in the Coen district, Sub­Inspector Garraway, who emphasised the deterrent aspect of the measure: "... it will have an excellent effecton other blacks inclined to mischief" (see his comments in 1. Earle to W. Roth, 24 January 1901, QSAA/58786). For a similar case, see E.R. Gribble to Inspector ofPolice, Cairns, 9 September 1901, QSAA/58786.

[14 "Annual Report of the Northern Protector ofAboriginals for 1903", QPP, 1904, p. 862.

Chapter 6: From 'Dispersals' to Confinement 313

example, when a settler from Lawn Hill complained about three Aboriginal leaders causing

trouble in his district the police were asked to investigate the matter. I 15 The local constable

reported that one of the leaders was a "notorious bad character", but that he frequented the

Northern Territory side of the border and rarely ventured into western Queensland. Another

was apparently regarded as quite obedient and well-behaved, always preventing any ofhis

tribe from committing any depredations against the settlers in the region. The third, however,

was "quite a different boy altogether and an undesirable character amongst the different tribes.

[He] ... has been the cause ofmany fights between the different Blacks and the organizer of

all depredations committed by the tribe [he] is king Of,.116 The result of the investigation was

that the Aborigine was deported by rail to the reserve at Mapoon, probably in chains, and

frequently on display for onlookers at each station (for a copy ofhis removal order see

illustration 6.1).117

Most deportations occurred as a result of the bureaucratic structure established by Roth

whereby police (and settlers) were encouraged to notify him of criminal activity by

Aborigines. This greater level of surveillance in the northern regions may have had the effect

of ensuring that the Protector remained acutely aware oflawlessness in his sphere of

influence, but it also made him much more susceptible to the influence oflocal settlers whose

motives for requesting deportations may, on occasions, have been questionable. I 18 It is worth

quoting at length one of these appeals to curtail the freedom of a troublesome Aborigine:

It is in addition suggested that this boy having already served a term ofimprisonment and being of a dangerous, intractable disposition continually (ashas been satisfactorily shown to us), plundering prospector's tents, while the menare at work, so it was considered that nothing was safe, and to a great extenteducating and encouraging the aboriginals of the Woodville district to commitdepredations on the white population which in these parts is very scattered, it

115 Mr Macintosh to W. Roth, 3 February 1903, QSA A/58927.

116 Report of Constable G. Dwyer for Inspector Gai1braith, Nonnanton, 31 March 1903, QSA A/58927.

117 "Annual Report of the NorthemProtector ofAboriginals for 1903", QPP, 1904, p. 862. Meston referredto the practice of transporting these men in chains in his complaints about Roth (see Daily Mail, 21 October1905).

118 It is important to note, however, that Roth was not always persuaded by such appeals (see, for example,"Annual Report ofthe ChiefProtector of Aboriginals for 1904", QPP, vol. 1, 1905, p. 761). Nevertheless, itwould have been virtually impossible for him to have carefully investigated each case and in many instanceshe must have been forced to rely on the testimony ofloca1 police and settlers (more examples of policeinvolvement during 1901-2 may be found in Police Department, Commissioner's Office, generalcorrespondence, offences committed by Aborigines, 1901-47, QSA A/45212).

Chapler 6: From 'Dispersals' 10 Confinement 314

would be desirable in the interests of the protection ofproperty and in order tostop these raids which have now lasted continuously for a period of three months,that the boy after serving his term of imprisonment would be sent to Frazer'sIsland, it being hoped that ifhe were removed a sufficient distance from thescenes ofhis former exploits, he would improve and reform or at least, would nothave enough encouragement in a strange place to commence again his career of

h 119petty t eft.

It is clear that the petitioners were desperate to fragment Aboriginal resistance in the region by

removing another influential renegade obstinately defYing white law. Ultimately, they were

successful, and the malefactor was placed under Meston's control upon release from prison in120September 1901 and duly transferred to Fraser Island.

It should be remembered, however, that many of the 'criminals' were not automatically

consigned to incarceration upon a reserve. One apparent paradox in the treatment of released

Aboriginal offenders was that they were just as likely to be employed as police trackers or

Native Police as to be deported to Fraser Island. 121 In 1900, Sub-Inspector Garraway, of

Coen, asked his sergeant to ascertain whether two troublesome Aborigines could be recruited

as trackers, otherwise he would have to "recommend them for expatriation". 122 It would

appear that the 'roguish' behaviour demonstrated by such Aborigines, along with the

dominance they were capable of asserting over indigenous communities, were attributes

highly sought after by the police. Recruitment did not always guarantee an uncritical

adherence to police practices, however, as was demonstrated in 1901 when a tracker was

convicted ofassisting three Aboriginal prisoners to escape from police custody. When

questioned as to why he had aided in the escape, he replied: "When white man gets into the

119 J. Williams, Police Magistrate at Thomborough, and F. Gabriel, Justice of the Peace, to Home Secretary,5 March 1901, QSA PRVA88 [2870].

120 See Under Sec, Home Office, to W. Roth, 29 July 1901, QSA A/58786 and J. Williams, Police Magistrateat Thomborough, and F. Gabriel, Justice of the Peace, to Home Secretary, 5 March 1901, QSA PRVA88[2870].

121 Ironically, Fraser Island was one of the main recruiting grounds for trackers during the late l870s (seeQPD, vol. 30, 1879, p. 1090).

122 Extracts from letters received from W,J. Robertson Dunbar Station re Aboriginal offenders, and actiontaken by Native Police in the matter, QSA COLl483a, December 1900. In another case, it was only after fourAborigines were deemed to be unsuitable for service in the Queensland police force that they wereconsidered for removal to a reserve (see telegrams in QSA A/58786 following letter from W. Roth to UnderSec, Home Office, 25 February 1901). For further details on the policing ofAboriginal criminals, see PoliceDepartment, Commissioner's Office, general correspondence, offences committed by Aborigines, 1882-1947,QSA A/45211-2; and ChiefProtector of Aborigines, 1900-47, QSA A/45209.

.. The Abm-i!JinaL~ Protection and Restriction of the Sale of Opiwn Acts, 78U7 to 1U01."iIt,

1'0 all Of1lecrs anll COJlstables or Police, Prison Officcrs, anll othcrs whom it may concorn. ~yOrder for Removal of flboriglnals from one Reserve to tlnother.

WHEREAS hy Section 9 of tI The Aborigi,urls ProleclioT'- (MId Restriction of the Sale of Opiwn Act, 1897:' and Section 3 of "The Aboriginals Protection and llestriciion of the Sale of Opium Act, 1901,"

it is cnnctcll that the 1viinistr.r mny cause Aboriginals to he removed from nny TIescrvo.in onc District to :'lnothcr Reserve in nnothcr District: Now, therefore, I, The Hono!lrnhle~__.__

_Aboriginals horeinafter nnmed he removed from the Reserve in

for the cnmU~8 Rtntcd in conn~otion with their Names respectively, and to he kept within~to the Res~rve nt

____________ lteservo in Ruch mnnuer finll Imhject to Ruch cOTHlltiomt ns may he prc8crlhod.

Homo Secrctnry of the State of Queensland, lhe i\lini~tcr f\dmini~terjDgthe abovementioned Acl~, do hl~rebJ order that the . .

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Chapter 6: From 'Dispersals' to COJlfine111cnt 316

water, white man gets him out: when blackfellow gets into jail, blackfellow gets him out". 123

His comments would suggest some residual conflict between his native culture and European

penal methods.

Apart from these increasingly rare cases of employment in the native police, there was no

guarantee of freedom after the expiration ofa prison sentence for Aboriginal offenders.

Instead, the stigma ofa gaol term was to ensure that the "incorrigible" label would remain

with them and, more often than not, consign them to an indefinite period of incarceration

within the reserve system. A Foucauldian-inspired phenomenology appropriately

characterises this extension of the carceral experience in the case ofAboriginal offenders:

they were to remain subject to life within strictly defined physical boundaries, continual

surveillance by European officialdom, a disciplined and regulated life-style, and all lived

under the constant threat of intervention from the authorities. In short, a condition in which

all the accoutrements of the European experience ofmodemity came to be collectively and

abruptly imposed upon a group ofpeople whose history had been characterised by an inverse

experience.

This technique ofdeportation has significant implications for the history ofpenality in a

colonial context. It was a strategy that directly contravened classical notions ofpenality, in

that freedom did not follow the expiration ofa term of imprisonment. Eventually, the

introduction ofhabitual offender legislation abroad helped to sustain the exceptional nature of

this form ofpreventive detention. In the local late colonial context, however, a unique form

ofindeterminate sentence was applied to Aboriginal 'criminals' some two decades before the

first European offender was to become subject to official habitual offender legislation in

Queensland. It is interesting to note that in Britain during the protracted debate over the

merits of the positivist paradigm, especially the concept of indeterminate sentencing, Evelyn

Ruggles-Brise, chairman of the Prison Commission, rejected the use of the penalty except in

cases where offenders were unable to exercise free will, in other words, when they were

feebleminded, insane, or too young. 124 It was a similar perspective that informed the decision

123 Correspondence from W. Roth, 20 December 1901, QSA AJ58786. Also quoted in Rosalind M. Kidd,Regulating Bodies, p. 233. The tracker was eventually sentenced to two years imprisonment which, contraryto the Northern Protector's report, he served at St Helena ("Annual Report of the Northern Protector ofAboriginals for 1901", QVP, vol. 1, 1902, p. 1141; Supt, St Helena, to C-G, 13 January 1903, QSAPRlIA100 [0199]). His sentence was remitted after about eighteen months and he was removed to Dunmdur(St Helena Penal Establishment, General record and description of prisoners, QSA AJ18577, p. 133).

124 Bailey, "English Prisons", pp. 314-5.

Chapter 6: From 'Dispersals' to Confinement 317

to apply a form of indeterminate sentence to Aborigines. In Queensland, the authorities were

dealing with a problem population they believed to be morally deficient and incapable of

reform. It is no coincidence that they conceived of a preventive strategy that bore close

resemblance to one which was considered by Ruggles-Brise as appropriate for mentally

deficient adults or children.

Conditions at Bogimbah were particularly harsh. Indeed, it has been described by its historian

as a "punitive, custodial and potentially correctional institution,,125 - in many crucial respects,

approximating a prison. Native mission officers were appointed to maintain order on behalf

of the superintendent, rules were devised to regiment the day-to-day activities of the inmates

and almost every movement remained under surveillance. As well as its own 'policing'

structure, the reserve had a small lockup for refractory inmates. Complaints were often made

by the inmates about the harshness of the regime and occasionally they equated their lives on

the reserve with confinement in a prison. 126 Even after the damning allegations ofcruelty

against the superintendent in 1900, and the Anglican takeover later that year,127 conditions

remained highly repressive for both 'criminals' and the ordinary inmate population alike. 128

Forced "expatriation" was not always sufficient to stifle Aboriginal resistance to such

European penal sanctions and there were many successful escapes from the island reserve.

Some of the men deemed to be incorrigible prior to their being transferred to Fraser Island had

enhanced their infamy by making successful escapes from local gaols and lockups. 129 They

were to further frustrate the reserve authorities and police by continuing to do so. In one case,

a partially deafand mute inmate managed to escape from Fraser Island only to be recaptured

and transferred to Durundur reserve. 130 There he assaulted the superintendent and was

125 Evans, 'A Permanent Precedent', p. 19. See also his discussion ofhow Australian colonial adnrinistratorshave resorted to using island prisons in dealing with Aborigines, in Evans, et aI, Exclusion, Exploitation andExtermination, pp. 347-9.

126 Police Magistrate, Maryborough, to Home Secretary, 5 June 1901, QSA A/15992 (08987).

l27 Evans and Walker, "These Strangers, Where Are They Going?", pp. 83-5; and Kidd, Regulating Bodies,pp.225-30. Archibald Meston's son, Harold, was the superintendent for the initial few years of the reserve'slife.

128 The best analysis of these conditions is in Evans, 'A Permanent Precedent', pp. 23-6.

129 See, for example, James Gibson to Inspector of Police, 15 November 1898, QSA A/58786; and ActingSergeant, Cooktown, to W. Roth, 4 July 1901, QSA A/58786.

130 "Annual Report of the Northern Protector ofAboriginals for 1903", QPP, 1904, p. 863.

Chapter 6: From 'Dispersals' to Confinement 318

subsequently removed to Deebing Creek, where he again eluded detention and attempted to

travel back to his home in the north - it was alleged that a longing for his wife and child

provided the motivation. 13! Meston was later to claim that it was a yearning to renew contact

with family members that motivated each of the escape attempts. 132 In an earlier escape, the

inmate managed to reach his home in far north Queensland in under six months, a distance of

800 miles. 133 There are many other such instances recorded in the Northern Protector's annual

reports and departmental correspondence. Apart from the threat of corporal punishment, or its

use, the authorities devised other methods for quelling the inmates' enthusiasm for escape. In

one particular instance, it was suggested that the 'gin' of a 'criminal' Aborigine be deported

with him ifit was thought that her company might keep him contented. 134

It was ultimately these appalling death rates that brought about the demise ofthe Bogimbah

experiment. After revelations ofmismanagement and abuse appeared in the press, the

government was pushed to discontinue its use, and the surviving inmates were removed to the

Anglican-administered Yarrabah Mission near Cairns. 135 It is also likely that the e~pense of

deporting Aboriginal prisoners from the northern districts to Fraser Island contributed to the

closure ofBogimbah. In 1902, the government issued instructions to find "some less

expensive method ofdealing with these constantly recurring cases" .136 As a consequence, the

government pursued a policy ofremoving 'criminal' Aborigines to the most convenient of the

increasing number of reserves and missions scattered around the state. Durundur was closed

in 1905 and Barambah then became the regular destination for many convicted southern

Aborigines and others who had experienced confinement in the south eastern prisons. 13? In

131 "Annual Report of the ChiefProtector ofAboriginals for 1905", QPP, vol. 2, 1906, p. 930; Daily Mail, 21October 1905.

132 Daily Mail, 21 October 1905.

133 "Annual Report of the Northern Protector ofAboriginals for 1903", QPP, 1904, p. 862.

134 See Under Sec, Home Office, to W. Roth, 2 April 1901, QSA A158786.

135 See Evans and Walker, "These Strangers, Where Are They Going?", pp. 88-9; and Halse, ReverendErnest Gribble. Occasional mentions of former Fraser Islanders may be found in the Yarrabah News (see, forexample, 10 April 1905).

136 Roth to Under Secretary, 20 September 1902, QSA A170007 [15565].

137 For examples of removals of 'criminals' to Durundur, see Supt, St Helena, to CoG, 13 January 1903, QSAPRIlA100 [0199]; and Sub-Inspector ofPolice, Cairns, to Commissioner ofPolice, 14 September 1903, QSAA158929; and A. Meston to Under Sec, Public Lands, 7 August 1903, QSA A158929. See also Crime andOffences, ChiefProtector of Aboriginals Office, 1919-26, QSA A158701. In 1910, an Aborigine, Craigie,was transferred from Thursday Island Prison to Barambah for being a ringleader of a tribe that had repeatedly

Chapter 6: From 'Dispersals' to Confinement 319

the north, it was usually to reserves like Yarrabah, Mapoon, Taroom (later Woorabinda) and

Palm Island that many Aborigines were deported.

Prior to the closure of Bogimbah reserve, Roth was elevated to the newly-created post of

ChiefProtector ofAboriginals. 138 In occupying this position, he was invited to report to the

Western Australian government on the condition of the Aborigines in that state. From

comments in his 1905 report, it is clear that the experiment on Fraser Island had done little to

resolve in his mind the best method for dealing with sentenced Aborigines:

With regard to long sentences being passed upon native prisoners, they are notconsidered beneficial. The blacks are far better in their uncivilised than semi­civilised state, and are a great deal of trouble after they come out of gaol. It doesnot do them the least bit of good, and does not stop them from killing cattle, thesame blacks have been brought before the Court again and again.139

Apart from a general recommendation that greater provision ofreserves for indigenous

communities was the only possible solution to the Aboriginal question, he did not offer much

in the way ofguidance on the vexatious issue ofpunishments for their transgressions against

European authority. 140 His decision not to make reference to the Bogimbah reserve would

suggest that, having witnessed the demise of this institution, he did not favour the concept of

utilising a reserve to act as a type ofAboriginal prison.

It should be remembered that Roth was writing at a time when the terms of settlement had not

yetbeen finalised in the more remote parts of Queensland, and the practice ofleaving

Aborigines to their own devices remained a realistic option for the state. Consequently, as the

era of institutionalisation began, there were still many Aborigines whose existence remained

maimed and killed cattle (C-G to Under Sec, 12 October 1910, QSA Al19504 [2862]). On the history ofBarambah, see Blake, A Dwnping Ground.

138 For a discussion, see Kidd, The Way We Civilise, pp. 54-60.

139 "Royal Commission on the Condition of the Natives, Report" Western Australian Votes and Proceedings,no. 5, 1905, p. 20. For a discussion ofRoth's investigations see Peter Biskup, Not Slaves, Not Citizens: TheAboriginal Problem in Western Australia J898-J954, University of Queensland Press, St Lucia, 1973, esp.pp.59-64. For biographical details ofRoth see Australian Dictionary a/Biography, vol. 11: 1891-1939,Melbomne University Press, Melbourne, 1988, pp. 463-4.

140 Later in 1905, Roth completed the eighth bulletin in his series on North Queensland Ethnography in whichhe discussed the "government, morals and crime" of the Aborigines in his region. The work was purelydescriptive, however, and did not offer any commentary on how Europeans should intersect with traditionalAboriginal perceptions of criminal behaviour and punishment. See Walter E. Roth, "Notes on Government,Morals and Crime", North Queensland Ethnography: Bulletin No.8, in QPP, vol. 2, 1906, pp. 945-56.

Chapter 6: From 'Dispersals' to Confinement 320

largely immune from settler interference. As late as 1912, for example, we find in the Cape

York region a pragmatic tolerance of indigenous legal practices. In that year, the

superintendent of Weipa Aboriginal Mission, Mr E. Brown, reported:

On the whole, the year under review has been more settled and brighter thansome of its immediate predecessors. There has been less fighting and blood­shedding, and no murder among our people. They have kept their usual periodicgathering of the clans to settle quarrels, but for the most part these were settled inparliamentary style; and where any spearing was done, it has been light. Untileither the whole community has become so thoroughly Christian that there are nowrongdoers, or we have the usual concomitants ofcivilisation in the form of anorganised police force, gaols, &c., the cessation of these periodic assizes is hardlya thing to be desired. Though the aborigine usually takes his punishmentphilosophically enough when he finds that he can no longer escape it, theknowledge that punishment will surely follow crime is a deterrent to a man whowould otherwise soon become a real scoundrel. 141

Brown's observations were reminiscent of those presented to the 1887 board of inquiry. In the

early decades ofthe twentieth century, many Aborigines still remained subject to the

traditional lore of their communities, and were spared the tribulations of a term of

imprisonment in a settler prison.

It seemed the experiences ofFraser Island would soon be repeated when, in 1921, it was

proposed that an Aboriginal prison be established on Friday Island in the Torres Strait,142 The

local Protector ofAboriginals submitted to Chief Protector Bleakley his scheme to establish a

penitentiary on the island exclusively for the punishment and reformation ofminor Aboriginal

offenders. Prior to his proposal being made, the usual punishments for such offenders had

been either a briefperiod of incarceration in Thursday Island Prison or the imposition ofa

fine; although, in some cases offenders were able to sign on for employment on a fishing

vessel for an approved period of time. The greatest problem with the existing system was that

it very often defeated the twin aims ofpunishment in the district - the restoration of social

discipline and the reformation of offenders. Holmes perceived the problem in terms of an

insufficient isolation ofoffenders from their community. There was little punishment in a

situation where criminals were able to associate regularly with their friends and family.

141 E. Brown, Superintendent of Weipa Mission, in "Annual Report of the ChiefProtector of Aboriginals forthe Year 1911", QPP, vol. 3, 1912, p. 1019.

142 Memo fromR. Holmes, Protector of Aboriginals, Somerset District, to CPA, 22 April 1921, QSAA/5870 1. The island had previously been used as a quarantine station.

Chapter 6: From 'Dispersals' to Confinement 321

Illustration 6.2: Thursday Island Prison, 1916 (ARC-G, 1916-17)

Chapter 6: From 'Dispersals' to C:onfinement 322

Holmes' scheme also included a proposal to confine female offenders on the island as well,

with an asylum being established there solely for "unfortunate girls". Embodying the residual

colonial principles ofeconomy and self-sufficiency, his plans involved recycling materials

from the buildings already in existence on the island and employing Murray and Damley

Island offenders to erect a new structure for the women. Aborigines and Torres Strait

Islanders would also be employed as warders. In the proposal we can detect the emerging

principle ofwelfarism that was gradually becoming more pervasive in the early decades of the

twentieth century: "My object in recommending the establishment ofa penitentiary is that

those sent there would be punished for their misdeeds and at the same time have a chance of

again becoming decent members of the Aboriginal community" .143 However, it was a form of

welfarism constrained by the dominant belief in Aboriginal exceptionalism that had hitherto

characterised penal strategies during the colonial period in Queensland. The proposal never

progressed beyond the draft stage as the depressed economy put paid to the introduction of

many new schemes requiring significant state funding.

It was left to one of the existing reserves to assume the dubious responsibility of informal

detention centre for recalcitrant Aborigines. By the 1920s, the notorious Palm Island came to

be seen as the new island prison to which many offending Aborigines were removed. 144 Here,

convicted and time-expired Aborigines and Torres Strait Islanders were detained alongside

others who were simply regarded as persistently troublesome to reserve superintendents,

employers or police. The new policy had an immediate impact on the number ofAborigines

being sentenced to terms of imprisonment. The Comptroller-General was able to report in

1924 that the recent decrease in Aboriginal admissions to prison "is accounted for by a

number having been released, by special remission, and removed to the Mission Station, Palm145Island". Throughout the 1920s and 1930s Palm Island became the most common

destination for indigenous people removed from their traditional lands, and for the next five

decades it remained the major depository for those Aborigines and Torres Strait Islanders who

143 Memo from R. Holmes, Protector ofAboriginals, Somerset District, to CPA, 22 April 1921, QSAA158701.

144 Indeed, the establishment of the reserve in 1918 was motivated by a desire on the part of the authorities fora facility that could receive Aborigines who were considered disciplinary problems in other institutions or insociety generally (see Raymond Evans, "Aborigines: 'The Duty We Owe.. .', Aborigines and State Control inQueensland, 1915-57", in D.l Murphy, R.B. Joyce and Colin A. Hughes (eds), Labor in Power: The LaborParty and Governments in Queensland, 1915-57, University ofQueensland Press, St Lucia, 1980, pp. 330­54; and Watson, Becoming Bwgcolman, p. 72).

1~ 1ARC-G, 1923, QPP, vo . 1, 1924, p. 40.

Chapter 6: From 'Dispersals' to Confinement 323

. d . 1 . . 146exerCIse strenuous resIstance to co omsatlOn.

From its inception, the reserve was well known for its disciplinary regime. It was equipped

with its own criminal justice system, replete with Aboriginal policemen appointed by the

superintendent; a police commissioner, judge and jury in the form of the superintendent

himself; and a gaol for residents convicted of 'offences'. The first superintendent also began a

practice of secondary deportation, frequently banishing particularly problematic offenders to

nearby Curacoa and Eclipse Islands. This surrogate criminal justice structure reinforced the

varying regimes ofsocial control instituted by successive superintendents. Until the 1960s,

for example, indigenous residents were forced to salute non-indigenous residents as they

passed in the street; permits were required for fishing or hunting; residents were subjected to

unannounced inspections of their homes; women were required to sweep the streets and work

in the homes ofwhite staff; certain areas, including the cinema and school, were racially

segregated; people continued to queue for rations; and the network ofindigenous police,

armed with batons, patrolled the community observing the activities of residents. 147

Sanctioned by legislation from 1939, superintendents instituted similar structures ofauthority

and social control on other reserves in Queensland. 148 For the next three decades, there

gradually developed a set ofpunitive practices, independent of the mainstream criminal

justice system, that played a fundamental role in the largely hidden history ofcolonisation in

twentieth century Queensland. 149

Conclusion

From the first admissions of indigenous peoples to the colonial penal system, the authorities

were confronted by the problem ofdevising an appropriate punishment for this unique class of

146 For work on Palm Island, see Kidd, The Way We Civilise; Dawn May, "A Punishment Place", in BillGammage and Peter Spearritt (eds) Australians 1938, Fairfax, Syrne & Weldon, Sydney, 1987, pp. 95-107;Renarta Prior, Straight From the Yudaman's Mouth, Department ofHistory and Politics, James CookUniversity, Townsville, 1993; and Joanne Watson, '''We Couldn't Tolerate Any More': The Palm IslandStrike of 1957", in Ann McGrath and Kay Saunders (eds), with Jackie Huggins, Aboriginal Workers, LabourHistory (Special Issue), no. 69,1995, pp. 149-70. The most informative work is Watson, BecomingBwgcolman.

147 Watson, Becoming Bwgcolman.

148 The Aboriginals Preservation and Protection Act of1939, 3 George VI, no. 6.

149 Tatz, "Queensland's Aborigines", pp. 33-49. C.D. Rowley, Outcasts in White Australia, Penguin,Harrnondsworth, 1972, pp. 107-27.

Chapter 6: From 'Dispersals' to Confinement 324

offender. It was a problem that was repeatedly sidestepped by successive administrations,

even after the 1874 commission found that close confinement was an inappropriate

punishment for Aborigines, and subsequently recommended that some form ofmore open yet

secure institution, such as an island penitentiary, be utilised instead. It is clear that from these

early years the authorities were aware that the separation ofAborigines was damaging to their

health, and that confinement in association with European offenders was damaging to their

minds. Nevertheless, the colonial state persisted with its pragmatic policy ofconfining

Aboriginal and Islander prisoners in its ordinary gaols and penal establishments. Within these

institutions, they were delegated the most menial jobs and were segregated as much as

possible from non-indigenous prisoners. In fact, the use of segregation was considered

necessary to assuage the racist sentiments of other prisoners, as much as preserve the health of

indigenous inmates. It was one instance in which (non-indigenous) inmate opinion was

unequivocally in consensus with administrative decree.

The use of imprisonment in the case of Melanesian labourers displayed a different form of

pragmatism, closely related as it was to the efficiency of a profitable colonial industry.

Queensland's penal apparatus was clearly modified in response to the specific needs of the

sugar industry in maintaining discipline among its indentured labour force. The ambiguous

position ofIslanders (and also Aborigines) in the colonial penal system was also highlighted

in two contradictory attitudes towards their ability to cope with life behind bars. Some argued

that they preferred life in prison, with meals and accommodation guaranteed, to life on the

plantations. Others thought that imprisonment was so completely alien to their experience

that it was damaging to their health and vitality. Further complicating this picture were the

colonial press and political opponents of the labour trade. Both parties were responsible for

demonising the Islander population, as well as other non-European racial groups, greatly

influencing attitudes towards indigenous offenders. Failure to resolve this debate ensured that

the authorities could never confidently decide between severity or leniency in developing an

appropriate regime for the punishment ofMelanesian prisoners. In the case of serious

offenders, the authorities decided upon a process ofarbitrary deportation as the best method

for liberating the colony/state of these problematic immigrants.

With the passage of the 1897 protection Act, Queensland's indigenous population entered a

new phase in the evolution ofcolonial penality. The island penitentiary objective that was

first enunciated during the 1870s finally materialised with the establishment of a more

Chapter 6: From 'Dispersals' to Confinement 325

rationalised and bureaucratic system for the effective control of the Aboriginal population. It

was as a consequence of this process that, in Queensland, the preferred colonial technique for

the punishment of Aborigines - confinement on isolated, preferably island, reserves - came to

be conflated with a much more broadly based strategy of social control. In this way, an

enduring nexus was established between the punishment ofAborigines and the persistent

regulation of their lives on reserves and missions. As the protectorate system expanded,

gradually drawing more and more people into its net, it became increasingly difficult to

identify the ordinary boundaries ofpolicing, prosecution and punishment. Penality came to be

represented in a complex mesh offonnal and infonnal criminal justice practices that clearly

distinguished the experience of indigenous peoples from others in Queensland society. The

place of the prison in this network quickly diminished in importance, yet the role of

incarceration increased. This pattern would remain in place until the 1960s, when the prison

would re-emerge as the primary institution for the confinement of indigenous offenders.

Chapter 7: Economy, Punishment and Rcf(xO} 326

Chapter 7

Economy, Punishment and Reform: The Political Economy of

Punishment

This chapter will pursue an alternative line of inquiry to that of the usual political economies

of punishment, and explore the relationship between the fiscal concerns of the state and penal

change. This is a theme that has not yet been examined in existing studies of punishment in

Australasian jurisdictions. The work of Braithwaite, for example, sits comfortably alongside

traditional political economies of punishment. He has investigated the relationship between

labour market fluctuations and imprisonment rates throughout New South Wales and

Victorian history, concluding that, as incarceration rates declined from the middle ofthe

nineteenth century, there were periods of slight increases which clearly corresponded to

periods of economic strife in Australian society.] Garton, however, has been at pains to

highlight the limitations ofthe labour market thesis, concluding that in New South Wales it

was a confluence of various political processes that had the most profound impact on penal

transformation between 1880 and the 1920s. He does, however, concede that "[t]he structures

of the labour market - unemployment, underemployment, and the stresses accompanying the

sexual division oflabour - were crucial in the genesis ofvulnerable populations"? This

dissatisfaction with the labour market thesis is just as pertinent in the Queensland situation,

although I would argue that it is premature to abandon completely the emphasis on economic

issues. In fact, there is good evidence to suggest that in Queensland it was essentially fiscal

considerations which were most influential within the political realm in determining

responses to penal pressures. The following discussion will demonstrate that there is value in

redirecting attention away from an exploration of the relationship between penal change and

developments in the wider economy - the theJJ;le that has thus far preoccupied the majority of

scholars interested in the political economy ofpunishment - to concentrate instead upon the

internal economy of the penal system itself.

1 Braithwaite, "The Political Economy of Punishment", pp. 192-208. Braithwaite's article is, however, moreconcerned with reconciling the apparent differences between Andrew Scull's work on decarceration as aconsequence of the fiscal crisis of the state during late capitalism and Richard Quinney's argument that crimerates increase with a gradually deepening economic crisis (see Richard Quinney, Class, State and Crime: Onthe Theory and Practice a/Criminal Justice, David McKay, New York, 1977; and Andrew T. Scull,Decarceration: Community Treatment and the Deviant - A Radical View, Prentice-Hall, Englewood Cliffs,New Jersey, 1977).

2 Garton, "Bad or Mad?", p. 109. For a more comprehensive critique of labour market theories ofpenalchange, see also Garton, "The State, Labour Markets and Incarceration", esp. pp. 311-6.

Chapter 7: T:conomy, Punlshment and Reform 327

While the emphasis in most political economies ofpunishment has clearly been upon the

relationship between imprisonment and the labour market and, by extension, the link between

punishment and social control, there have also been a minority of studies that have drawn

attention to the importance of the income-generating capacity ofpenal institutions in

determining their development. The work of John Conley is perhaps the most informative of

these studies? He has convincingly demonstrated the fundamental role ofprison industries in

influencing the development of the penal system in the southern central state of Oklahoma,

citing other studies ofAmerican penal systems in support ofhis contention that economic

factors should be accorded greater primacy in explanations ofpenal history. In Oklahoma, the

profit-making potential of the industrial prison was quickly recognised, and its penal system

was established with the intention that prison production would stand as a model for industrial

growth in the predominantly rural state. Early success soon gave way to falling profits,

however, as the prison was forced to contend with problems such as inefficiency in production

and the manufacture ofpoor quality goods, failure to resolve the issue of competition between

prison goods and private firms, and the political threat posed by a coaJition of business and

labour interests opposed to prison production.4 Following continued attempts to "apply a

free-market perspective to prison industries that had a captive employee force without

incentive, outmoded and inefficient equipment, and a limited and closed market", the

industrial paradigm was abandoned and, from the 1950s, the Oklahoma penal system was

reoriented to pursue a goal of safe and orderly custody.s

Similar attempts to enhance the productive capacity ofprisons and increase profit margins

3 See, in particular, the following articles by John A. Conley: "Economics and the Social Reality of Prisons",Journal ofCriminal Justice, vol. 10, 1982, pp. 25-35; "Revising Conceptions About the Origin ofPrisons:The Importance ofEconomic Considerations", Social Science Quarterly, vol. 62, no. 2, 1981, pp. 247-58;and "Prisons, Production and Profit: Reconsidering the Importance of Prison Industries", Journal ofSocialHistory, vol. 14, no. 2, 1980, pp. 257-75. See also Christopher R. Adamson, "Hard Labour and SolitaryConfinement: Effects ofthe Business Cycle and Labor Supply on Prison Discipline in the United States,1790-1830", Research in Law, Deviance and Social Control, vol. 6, 1984, pp. 19-56; Glen A. Gildemeister,Prison Labour and Convict Competition with Free Workers in Industrializing America, 1840-1890, GarlandPublishing, New York, 1987; Gordon Hawkins, "Prison Labor and Prison Industries", Crime and Justice,vol. 5, 1983, pp. 85-127; and Martin B. Miller, "Sinking Gradually into the Proletariat: The Emergence of thePenitentiary in the United States", Crime and Social Justice, no. 14, 1980, pp. 37-43.

4 Conley, "Prisons, Production and Profit", pp. 260-4. A briefreprieve from economic collapse occurredduring the 1940s, when the demands ofa war economy and post-war reconstructive effort found value inprison industries.

5 Conley, "Prisons, Production and Profit", p. 267.

Chapter 7: Economy, Punishment and Reform 328

have occurred in colonial jurisdictions, although in these cases it was usually the

overwhelming influence of fiscal conservatism, in combination with the impact of

unfavourable external forces, that frustrated profitability. Two Canadian studies, for example,

have confirmed the paralysing effect of a parsimonious state intent upon transforming penal

institutions into profitable industrial enterprises without investing sufficient capital. The

grandiose profit-making ambitions of the architects of the 8t John Penitentiary in New

Brunswick and the Ontario Central Prison were ultimately dashed by the usual disciplinary

and practical problems.6 The present study confirms that this form of fiscal conservatism was

not confined to the North American colonial settler state.

The evidence presented in this chapter suggests that in Queensland economic factors should

retain a high degree ofprimacy in any explanation of the gradual unfolding ofpenal history.

In this jurisdiction, the decision-makers in the penal realm were perpetually constrained by the

tension between three competing goals of imprisonment - punishment, reform and economy ­

and it was this tension that shaped penal policy and determined the functions and

characteristics of imprisonment in Queensland's early history. Believing that punishment

must possess a deterrent quality to prevent reoffending, the authorities were aware that a

system of imprisonment must incorporate a sufficiently punitive element to satisfy this

objective. They were equally aware that punishment alone would not be enough to prevent

reoffending, and that modem penal systems were expected to incorporate a rehabilitative

programme to bring about the reformation of inmates. Finally, they were aware that

imprisonment came at a cost to the state, and were perpetually in search of a mode of

punishment that would be cost effective, if not profitable. The task ofpenal administration

was to find an appropriate balance between these three competing goals, and not allow one to

eclipse the others. A satisfactory balance remained elusive, however, and the constant state of

tension continued to be the impulse behind penal transformation in the colony.

Evidence ofthis tension was occasionally articulated in both government and non-government

commentary on the penal system, suggesting that this approach to imprisonment was quite

consistent with the public discourse on the objectives ofpunishment. The report ofthe 1887

board of inquiry, for example, argued that: "There is a three-fold purpose in imposing hard

labour on prisoners. First, it deters them from a return to gaol by its penal character; second,

6 Baehre, "Prison as Factory, Convict as Worker"; and Berkovits, "Prisoners for Profit". See also Oliver,Prisons and Punishments in Nineteenth Century Ontario, ch. 11.

Chapter 7: Economy, Punishment and Reform 329

it reforms them by developing their intelligence, cultivating habits of steady industry and

order; and, third, it contributes towards the expense oftheir maintenance".7 Moreover, in an

1878 editorial on the issue of reformation, the Brisbane Courier summed up the contradictory

nature of prison discipline: "The difficulty principally encountered is how to combine

punishment with reformatory measures while the prisoner is in gaol, and at the same time to

fit him for liberty at the expiration ofhis sentence. Another aspect of the question is the

possibility or otherwise of making penal establishments self-supporting..." without

compromising refonnatory treatment.8 These sentiments were also quite consistent with

public perceptions ofwhat the less-eligible conditions of imprisonment should entail for

offenders.9 The notion that inmates should toil to relieve their burden on the public purse had

similar appeal to advocates of retribution, deterrence and rehabilitation - after all, hard labour

could be punitive, reformative and productive at the same time. The commonly-held

ideological position that prisoners should not be a burden on the society they had sinned

against ensured that the objective of self-sufficiency remained a fundamental consideration in

the theory and practice of colonial penal administration. 1o

The capacity ofQueensland's penal system to generate income was the fundamental factor

influencing the conditions of imprisonment in the colony, setting definite limits on the

possibilities for both severity in punishment and the refonnation ofoffenders, and propelling

the function of prison labour to the fore in considerations on penal administration. Unlike

Oklahoma's penal system, however, it was not the quest for profit that drove Queensland's

penal administrators, but an obsession with economy, and the more modest, yet challenging,

goal of a self-supporting penal system. For Queensland's penal administrators, the central

issue was not how the penal economy could be made to contribute to the state economy, but

how the former could be structured to prevent it from becoming a burden on the latter. This

bureaucratic concern for an economical system of imprisonment overshadowed the

fundamental goal of imprisonment - the prevention of crime through punishment and

7 BI, p. 692. This statement was also quoted in Parliament (see QPD, vol. 53,25 October 1887, p. 1219).

8 Brisbane Courier, 17 September 1878.

9 In 1885, for example, the Queensland Evangelical Standard repeated the cry for exploiting the labourpotential of offenders: "Every man who becomes a confirmed knave is a loss to the community. We losewhatever contribution he might have made to the working power of society by his honest labour, and in somecases all that it takes to support him in prison as well as out of it" (28 August 1885).

10 O'Brien has also noted that the French public were concerned at the cost of maintaining prisoners (Promisea/Punishment, p. 151).

Chapter 7: Economy, Punishment and Reform 330

reformation - determining the parameters ofpenal change from the 1860s to the 1930s.11 The

desire for economy dissuaded the authorities from implementing a more deterrent institutional

regime. As demonstrated in chapters one and three, a theoretical devotion to the separate

system was never matched with a wholehearted practical commitment, and productive labour

was never displaced by penal labour. And while there may have been a discernible rhetoric of

reform in the documentation associated with the penal system, there was rarely any move to

incur the heavy expense of its implementation. In the absence ofan influential reform

tradition and a scarcity ofphilanthropic investment, the trajectory ofpenal change was left

largely to the state to determine. The concern for economy was a continuing impediment to

the adoption of welfare ideology and practice in the administration of Queensland's penal

system, and is the main reason for the slow transition from classical penology to penal-welfare

discussed in chapters one and two. This observation casts even more doubt on the validity of

interpreting Queensland's penal history in terms of two distinct periods ofdevelopment­

classical and penal-welfare. Fiscal concerns played a much greater role in defining the penal

system than did international reports or innovations in penal treatment and administration.

This chapter investigates the consequences of this emphasis on economy, extending the work

ofchapters one and two. It begins with an examination ofthe transition from penal to

productive labour in the 1850s and 1860s. This is followed by an assessment of the

importance of the St Helena experiment in embedding the principle of self-sufficiency in

Queensland's penal ideology. The emphasis on economy had a profound impact on the

provision of reformatory treatment within the penal system itself, with much of the

responsibility falling onto the shoulders of non-government agencies. An examination of the

rudimentary attempts to rehabilitate offenders highlights the low priority placed on the penal

objective of reformation. The chapter then returns to the history of St Helena; this time

focussing on its protracted demise, and arguing that its longevity (1866-1934) was due to its

importance as a productive unit within the penal system as a whole. This section includes an

analysis ofthe productive capacity of St Helena, and the penal system as a whole, relying on

evidence in the annual financial returns of the Prisons Department. The chapter concludes

with a briefdiscussion of the advent ofa new strategy in the provision ofpunishment - the

prison farm.

11 This preoccupation with economy has also been noticed by Raymond Evans in his study of colonialQueensland's charitable institutions. He has concluded that: "State intervention did suffer from a passion forsaving, more closely related to laissez-faire concepts" (Evans, Charitable Institutions, p. 292).

Chapier 7: Economy, Punishment and Ref()rtll 331

From Penal to Productive Labour

At the time of separation from New South Wales, the majority of Queensland's prisoners

served their terms of imprisonment without having to participate in any form of industrial

labour. The 1867 select committee reported that occasionally the male inmates were found

employment in cabbage-tree hat-making or picking oakum, while the female prisoners were

almost always confined in a state ofcomplete idleness.12 At this early stage, the major

obstacles to the establishment of successful remunerative industries were the insufficient

accommodation in the various gaols and the lack of workshop facilities. We have already

seen that, in its recommendations to Governor Blackall in 1868, the Colonial Office made

particular reference to the methods ofemploying prisoners in Queensland's gaols, condemning

the industry of hat-making (an occupation generally considered too light for male inmates)

and forcefully reasserting the position of the Carnarvon Committee on the importance of

strictly penal labour.!3 The lesson was to fall on deaf ears, however, as the Queensland

administrators had already decided only to employ shot drill if remunerative labour could not

be found for the prisoners. 14

This position had already been established before Queensland became a colony in its own

right. Unaware of the rising tide of imperial opinion against the focus on reforming prisoners,

an 1857 New South Wales Select Committee on Secondary Punishments asserted that:

All the good systems of Prison Discipline recognise work as their basis - notwork having no definite object, or only the object ofpunishment - but work witha view to instruction and profit; to assist in the reformation of prisoners; and tohelp to defray the cost of their maintenance; punishment with a view to theprevention of crime, being of course the chief end; refonnation and profitsubordinate considerations, but still if possible to be conjoined with it;particularly when we find that competent authorities fix the proportion ofincorrigibles at only six per cent of the entire number. ls

[2 SCPD, p. 9.

13 Duke of Buckingham and Chandos to Governor B1ackall, 14 October 1868, GBPP, vol. 57, 1867-8, p.793. See chapter one above for further details.

14 SCPD, p. 9 (see also the prison regulations in QGG, vol. 9, no. 74,29 July 1868, p. 856). It should benoted that the government did employ shot drill on a few occasions throughout the next two decades. It hadbeen introduced in Brisbane Gaol in January 1869, and was still in use for some prisoners in 1875 (seeReport of Sheriff for January 1869, QSA COLlAl17 [0300]; and ARS, 1874, QVP, vol. 1, 1875, p. 641).

[5 Moreton Bay Courier, 20 June 1857.

Chaptcr 7: Economy, Punishment and Rcform 332

In this pre-Carnarvon Committee period, it was clear that the colonial authorities believed that

prison labour should not be organised with punishment as its sole objective, but should also

assist in the reformation ofthe prisoner and contribute towards the maintenance of each

institution. As discussed in chapter one, it was a conviction that would prove to be resilient,

continuing to influence penal policy well after the separation of the northern districts in 1859.

The issue ofemploying prisoners under sentence of hard labour was one that had also

preoccupied the officials administering the Moreton Bay settlement during the early 1850s,

albeit in a more pragmatic fashion than their southern counterparts. 16 At this time, the

majority of hard labour prisoners were transported to Cockatoo Island Penal Establishment on

the Parramatta River near Sydney, while the others remained in a state of idleness in Brisbane

Gaol. Many in the region argued that prisoners should be forced to labour on desperately

needed public works in the streets of Brisbane town, and resentment grew against the

authorities in Sydney who were seen to be profiting from the northern settlement's loss of

potential workers: "ifoffenders sentenced to labour on the public works be sent to Sydney, ...

loss of labour is experienced; although it cannot be denied that the construction of a dry dock

at Cockatoo Island is a work of importance, yet we have many works of far greater local17consequence, utterly neglected". The Sydney Morning Herald's Moreton Bay correspondent

was later to argue that:

the principle ofemploying local convicts on local public works [is] a good one.It is advantageous to the district that has suffered from their crimes, and theexample is of greater force when the convict expiates his offence in the dailyview of his acquaintances and associates. It is also merciful to the convictsthemselves, as it saves those of them that are comparatively new to vice andcrime from the deeper pollution which infalliably [sic] awaits them in such acolonial pandemonium as Cockatoo Island. 18

Eventually the Brisbane Municipal Council began to employ prisoners on its public works

schemes and the practice was to become a regular occurrence throughout the early l860s. 19

16 For a brief discussion, see Connors, The 'Birth of the Prison' and the Death of Convictism, pp. 84-8.

17 Moreton Bay Courier, 13 March 1852. See also Moreton Bay Courier, 20 March 1852. For a briefdiscussion, see Connors, The 'Birth of the Prison' and the Death ofConvictism, pp. 87-8.

18 Sydney Morning Herald, 3 May 1855. In 1857, the Sydney Morning Herald carried a similar suggestionregarding the exploitation ofprison labour for road repairs and construction (15 June 1857).

19 In 1858 the Sheriff requested that twenty-four hard labour prisoners be used to clean out the large drain in

Chapter 7: Economy, Punishment and Reform 333

However, some opposition did come from a few local councillors who complained that they

did not want to hear the "clank ofchains tl in Brisbane's streets.20 The protest culminated in a

successful motion which called for a proviso that only those prisoners convicted of essentially

venial offences would be used for public work, and none would be made to labour in irons. In

any case, the sight ofprisoners on the streets became less common after the commencement,

of construction at 8t Helena in 1866. The demand for prison labour on the island resulted in a

diminution in the numbers available for public works in and around the capital.

In spite of this dramatic reduction, the limited use ofprison labour on some of Brisbane's

public works was continued well into the 1880s.21 Road gangs were occasionally seen

engaged in construction work around the city and some prisoners were employed as labourers

in the Botanic Gardens.22 Other centres possessing gaols also employed prison labour for

essential public works during this period.23 Interestingly, Arthur Halloran was critical ofmost

country corporations for not more frequently availing themselves of this economical option?4

However, employing prisoners in competition with free labour would not have been a

popular decision with many electors and, as has already been mentioned, the sight ofprisoners

working in public was offensive to many in the community. This latter consideration was in

evidence when the Roma Council protested against the daily procession ofprisoners carting

stones through the main street for use on the prison reserve, forcing the Comptroller-General

the centre ofBrisbane and work on the streets in the centre of town (see SheriffBrown to Col Sec, 10 August1858, Letterbook of the Sheriff, Prison Department, QSA PRIlG62). See, for example, Sheriff to Col Sec, 6September 1861, QSA COL/AI9 [2169]. Other towns followed the capital's lead and began to exploit prisonlabour where possible (see, for example, R. Dexter, Toowoomba Town Clerk, to Col Sec, 16 July 1864 QSACOL/A57 [2200]).

20 Moreton Bay Courier, 14 February 1860.

21 In 1889, SheriffTownley reaffIrmed his right to employ prisoners outside the gaols of the colony (seeSheriff to Under Col Sec, 3 October 1889, QSA PRVA40 [2653]).

22 See, for example, Visiting justice to Col Sec, 19 February 1867, QSA COL/A88 [0453]; and PrincipalGaoler's Journal, Brisbane Prison, QSA PRI 1/24, pp. 234, 242 & 310, June 1886 - October 1887.

23 For example, the Rockhampton corporation employed prisoners in gangs often to clear and stump the localrecreation ground (see ARS, 1885, QVP, vol. 1, 1886, p. 585). See also Principal Gaoler's Journal, HMPrison, Thursday Island, 1891-97, QSA PRI 13/1-2, for abundant evidence that prisoners were still beingused for outside labour around the turn of the century.

24 ARS, 1885, QVP, vol. 1, 1886, p. 585. He had earlier been critical of the mayor of Townsville for notemploying prisoners on the breakwater being constructed along the coastline (ARS, 1884, QVP, vol. 1, 1885,pp.538). The commissioners during the 1887 inquiry supported the greater utilisation ofprison labour forpublic works (see BI, p. 693).

Chapter 7: Economy, Punishment and Reform 334

to discontinue the practice.25

Another factor contributing to the discontinuation of labour gangs working beyond gaol walls

were the disciplinary problems these gangs posed for the prison authorities. There were

frequent incidents of members of the public communicating with the men as they laboured on

public works. On one occasion a cabman passed tobacco to a working prisoner, and on

another, an ex-prisoner passed some tea and sugar to a former prison companion who then

attempted to smuggle it into the gaol.26 Escape attempts were also a persistent problem.

Nevertheless, it was quite clearly the issue ofcompetition with free labour that was the

greatest hindrance to the further utilisation ofprison labour on public works schemes?7 This

contributed towards prisons becoming more isolated from the community and forced the

authorities to look inwards in their search for a solution to the problem ofproductively

employing the inmate population. The solution was to be found in the productive activities of

the penal institutions themselves.

The St Helena Experiment

Alongside the limited use ofprison labour on various public works activities, there was also a

concerted effort to rid the penal system ofshot drill in favour of useful employment carried

out behind gaol walls. Productive labour was regarded as an essential component in the

reformation ofprisoners as well as a means offarcing them to repay at least some oftheir debt

to society by contributing towards the cost of their maintenance. Spearheading this movement

towards productive labour was the penal establishment at St Helena where a variety of

industries were established to meet the costs of the institution itself and, it was hoped, to

generate a profit which would reduce the expense of the penal system as a whole.28 This drive

25 Evening Observer, 15 September 1893; Brisbane Courier, 2 October 1893; and QPD, vol. 70, 21September 1893, p. 840. See also, QPD, vol. 96, 18 October 1905, pp. 1230-1, on the problem ofexposingprisoners to the public gaze while employed on public works schemes.

26 See Principal Gaoler's Journal, Brisbane Prison, QSA PRl1l24, pp. 235, 257, 284-5 & 311, June 1886­October 1887.

27 See, for example, the discussion on employing the prisoners in Rockhampton Gaol in ARS, 1888", QVP,vol. 1, 1889, p. 1183. Captain Jekyll was careful, when suggesting improvements to the work regime atBrisbane Gaol, to emphasise that the construction ofconcrete slabs for pavements "would not interfere withfree labour" (ARS, 1885, QVP, vol. I, 1886, pp. 584).

28 For a brief survey of the history of St Helena, especially its formative years, see St Helena PenalEstablishment, History, 1865-98, JOL OM78-4/8.

Chapter 7: Economy, Punishment and Rej()rm 335

for self-sufficiency was to remain a central feature in the administration of Queensland's penal

system for the remainder of the period under analysis.

Even from the very beginnings of construction in 1866, St Helena relied upon the efficient

exploitation ofprison labour.29 Throughout its first year, prisoners were conveyed daily from

the hulk Proserpine to the island to clear land, lay foundations and erect the buildings within

which they were later to be confined. During these early years the authorities regarded it as

imperative that the prisoners be worked as hard as possible, and the military guard was soon

dispensed with in favour ofprison warders. The rationale for such a move was explained

during the 1867 select committee on prison discipline when W. Thornton, Visiting Justice to

St Helena, remarked that while "a soldier conceives his only duty is to prevent the prisoners

from escaping", a warder "considers it his duty to see that the prisoners do a fair amount of

work".30 After some early difficulties, the prisoners proved to be useful workers, with some

of their number actually drawing up the plans of the buildings to be erected without any

assistance from the colonial architect.31 At the end of its inaugural year superintendent

McDonald was able to predict confidently that the gaol would, through the implementation of

agricultural labour, operate as a self-supporting institution within two years.32 His prediction

may not have been entirely accurate, but his optimism was certainly not misplaced. By mid­

1869, the chairman of the select committee appointed to investigate the new penal

establishment was able to report that "[w]ith the industries now established on the island, and

its peculiar adaptability to the growth of sugar, ... at no distant date, the establishment will be

nearly, if not quite, self-supporting".33

But this early emphasis on productivity did not pass through parliament uncontested. During

the debate on the tabling of the 1869 report, William Walsh forcefully argued that the

authorities were losing sight of the primary aim ofpunishment. He believed that the first duty

of the government was towards its prisoners, not reducing the cost of their imprisonment:

29 Prison labour was also utilised in the construction of the quarantine station on St Helena during theprevious year.

30 SCPD, p. 12.

31 Brisbane Courier, 9 May 1868. The early problems have been discussed in chapter one.

32 SCPD, p. 22. See also the Brisbane Courier's sanguine predictions, 9 May 1868.

33 SCStH, p. 5.

Chapter 7: Economy, Punlshment and Rcfllfll1 336

"Their duty was to punish them, in the first place, for the crimes they had committed; and, in

the next place, to try and reform them; and he was afraid that, neither at St. Helena, nor at the

gaol in Brisbane, was any reformatory process going on".34 Archibald Archer was not

convinced by Walsh's argument that the teaching of trades was the best means for achieving

this end. He insisted that the best way to wean offenders off their old habits was to make

them participate in agricultural work, not treat them as apprentice tradesmen.35 The

consequent advantage of focusing on agricultural labour was that it would invariably lead to

St Helena becoming a self-supporting institution - an ambition he believed was perfectly

consistent with the other goals of punishment. This briefexchange was an early indication of

how the competing aims of imprisonment - punishment, profit and reform - could provoke

steadfast disagreement between the colony's decision-makers.

During the late-1860s, St Helena's inmates were employed according to an eight-point

classificatory scheme which was virtually a microcosm of that portion of free society engaged

in manuallabour.36 Mechanics, land clearers, quarrymen, harvesters, excavators, outdoor

labourers, those involved in sedentary trades (like tailoring and bootmaking), cooks and

wardsmen were all engaged in occupations designed to make the institution self-sufficient.3?

The cultivation of sugar cane was established as the main industry, and hopes were high for its

continued expansion and profitability?8McDonald himselfwas responsible for embarking on

the sugar experiment and, despite some teething problems caused by inadequate machinery, it

seemed that the early optimism would be well founded.39 Indeed, the local press was pleased

34 QPD, voL 9,27 August 1869, p. 834.

35 QPD, vol. 9,27 August 1869, p. 836-7. Archer's attitude is hardly surprising given that, only a few weeksbeforehand, he had given evidence to the select committee on St Helena predicting a promising future forsugar cultivation on the island (SCStH, pp. 903-4).

36 SCStH, Appendix G: Report on the Employment ofPrisoners at St Helena, pp. 18-19. See also Finger,The St Helena Story [unpublished manuscript], p. 36.

37 The eighth class consisted of men unfit for any form of work.

38 Much attention was paid to the experiment in sugar cultivation during the 1869 select committee and thewitnesses' responses were generally positive, especially that of Archibald Archer, an experienced sugarmanufacturer (see SCStH, pp. 876 and 903-4).

39 The problem of discolouration ofthe sugar crop had occurred in 1871 (see 1. McDonald to Col Sec, 6April 1871, QSA COL/A154 [0982]). New machinery was ordered to rectify the matter (see R.R. Smellie toCol Sec, 18 June 1870, QSA COLlA 145 [1906]). John Buhot, founder ofsugar cultivation and manufacturein Queensland, was extremely praiseworthy of St Helena's adaptability for the industry (see 1. Buhot to ColSec, 17 September 1873, QSA COL/A189 [2488]). .

Chapter 7: Economy, Punishment and Reic)rm 337

with the prospect that the sugar industry would keep the prisoners productively employed and

reduce the cost of the new penal establishment,40 By 1876, over half the prison population of

107 were employed in sugar manufacturing and eighty acres were under cultivation. The year

also brought early signs that production would not necessarily proceed smoothly, when the

superintendent reported that cane disease was becoming a problem.41 Throughout the next

decade sugar production continued with mixed success until 1888 when it was decided that,

due to past climatic difficulties, competition from mainland producers, and the antiquated

machinery in operation at the establishment, cultivation would be discontinued.42 In

economic terms, the experiment had been only partially successful, yet it had established the

pattern of self-sufficiency through prison labour that was eventually to make St Helena the

most productive institution in Queensland's penal system.

The sugar experiment also underlined the authorities' faith in agricultural labour as the

appropriate rehabilitative technique for criminal offenders. We have seen in chapter four how

strongly held this belief was in the case of male youths, but it was just as persistent in the case

of adult men. The 1887 commissioners even suggested that a greater variety of agricultural

employment should be found for the inmates on St Helena so that they could be fully trained

in all the forms of farm work: "Farm labour is always in demand in the colony, and one of the

best chances ofcomplete reformation for a man who had fallen into crime through temptation

would be in the country, away from evil associates".43

The value ofprison labour had become so entrenched in the penal philosophy of the period

that in 1886 William Townley was moved to report:

I do not advocate the total isolation of prisoners or the cellular system as strictlycarried out in many countries, but I feel convinced that there is no system betterthan that which provides for the association of prisoners at work - at all othertimes isolation. Under such a system they cannot contaminate each other, andreformatory influences are more likely to be successful than where constant

40 For details of the manufacturing process on St Helena, see Brisbane Courier, 28 November 1870.

41 ARSStH, 1876, QVP, vol. 1, 1876, p. 899. Two years later, reservations were expressed in parliamentabout whether it was worth persisting with the sugar cultivation (see QPD, vol. 26, 10 July 1878, pp. 767-8).It was suggested that the prisoners would be better employed constructing a break-water at Cape Moreton.

42 ARSStH, 1887, QVP, vol. 1, 1888, pp. 919-20.

43 BI, p. 711.

Chapter 7: Economy, Punishment and Reform 338

association is the rule.44

The limitations of total separation had become clear during the previous two decades and the

authorities were loath to institute a system in which complete isolation, and only penal labour,

was the norm. In some ways, the system ofprison discipline in operation in Queensland

quickly began to resemble the 'silent system' in that the inmates were made to work in

association but remain separate at other times (although there was no attempt to enforce the

strict silence that had initially been proposed at Auburn Prison earlier in the century). It was a

similarity that existed only in theory, however, as only one third of the prison population

could be confined in single cells at this time and association was still very much the norm.45

The consistent and rapid growth in Queensland's prison population throughout the nineteenth

century ensured that separation would be difficult to maintain.

During 1879, the industries of Brisbane Gaol had been transferred to 8t Helena in anticipation

of the planned relocation and downsizing of the former institution.46 The result was a

doubling in the number of inmates and a greater diversification of prison labour carried out on

the island.47 From this point the total earnings of the institution gradually rose with the steady

increase in its inmate population. By the close of 1880, the value of labour performed had

risen to £6,357 from a previous end of year total of about £3,431. It was to remain around this

figure until 1887, when the figure exceeded £12,000. We have already seen in chapter three

the wide variety ofoccupations at which the prisoners were required to labour. The most

profitable of these were the trades carried out in the tailors', saddlers', tinsmiths', carpenters'

and boot and shoe shops. A consistent level ofproductivity was maintained by a system

designed to extract the most from its captive workforce. Townley outlined its fundamentals in

1891 :

Each workshop is presided over by a trade instructor or overseer whose duty it is

44 ARSStH, 1885, QVP, vol. 1, 1886, p. 592. Townley's sentiments were typical of those expressed by manypenal administrators in England in the 1880s and 1890s. By the time of the Gladstone Committee in 1895,the practices of separate treatment and industrial labour sat uncomfortably together. Edmund Du Canehighlighted the contradiction in the Committee's recommendations, which continued to promote the virtues ofseparation, while at the same time calling for the gradual introduction of labour in association (see E.F. DuCane, "The Prison Committee Report", Nineteenth Century, vol. 38, 1895, p. 291).

45 BI, p. 707.

46 ARSStH, 1879, QVP, vol. 1, 1880, p. 633.

47 The inmate population increased from about 100 to 200 men.

Chapter 7: Economy, Punishment and Reform 339

to teach the prisoners in his particular gang the particular trade he himself ismaster of. The work is so far as possible task or piece work; material necessaryfor the manufacture of each article is cut out and issued to each prisoner everySaturday morning in such quantity as is considered sufficient for a fair weekswork, and the prisoners return to the overseer at the end of the week themanufactured goods; should they fail in accomplishing the prescribed work, theyare liable to be punished for idling, in accordance with the prison regulations.48

Gradually the establishment reached a level of productivity that ensured it remained the

central source of revenue for the penal system as a whole.

The task of finding suitable employment for the colony's prisoners did not end with

experimentation on St Helena. By the end of the l870s, most of the colony's other gaols were

able to dispense with shot drill and institute other forms of labour to occupy their inmates.49

As we have seen in chapter one, the vastness of the colony and the sparseness of its population

necessitated the establishment of a number of small, isolated gaols which did not have the

facilities for the employment ofprisoners at profitable labour.50 These smaller institutions

generally received prisoners who were confined for such short sentences that it was

impossible to teach them the skills necessary for advanced work like saddle-making or

tailoring. Consequently, they were usually required to perform the day-to-day tasks necessary

for the maintenance of the gaol, or forced to pick oakum within the confines of their cells.

In Australia, throughout the nineteenth century, it was the public account system that was the

most prevalent form ofprison labour.51 This entailed the government meeting all the costs of

production from the confinement, discipline and welfare of its prisoners, to the purchasing of

the tools and materials for production, oversight ofthe labour and disposal of the goods

produced. Occasionally work was carried out for private contractors, but generally

48 W. Townley to Under Col Sec, 5 September 1891, QSA COLlA671 [10118].

49 Although, Rockhampton Gaol was forced to continue the practice ofshot drill during the late 1880s, afterthe local corporation refused to continue employing prison labour for public works (see ARS, 1887, QVP,voL 1, 1888, p. 905; and ARS, 1888, QVP, voL 1, 1889, p. 1183).

50 ARC-G, 1897, QVP, vol. 1, 1898, p. 612.

51 This was in contrast to the United States, where the contract and lease systems were the dominant forms inmany jurisdictions (see Gildemeister, Prison Labour and Convict Competition, pp. 29-35). In nineteenthcentury France, contract and leasing systems were employed by private enterprise for the production of profit.Consequently, the entrepreneur exerted great influence on the structure and regime of particular prisons (seeO'Brien, The Promise ofPunishment, ch. 5, esp. pp. 155-63). For a contemporary discussion of the differentforms of prison labour, see Tallack, Penological and Preventive Principles, ch. 12.

Chapter 7: Economy, Punishment and Reform 340

commodities were produced exclusively for other government departments. Whereas in

Britain, and especially in the United States, there were vigorous campaigns against the

development ofprison industries, in Australia resistance was muted. Motivated by a belief in

the centrality of less-eligibility, there were the occasional objections in the press, as well as

speeches in parliament and at trade union meetings; but there was nothing ofthe agitations in

Britain that won legislative provision effectively preventing prison labour from asserting

undue pressure upon anyone trade or industry, nor was there anything resembling the anti­

prison alliances of organised labour and business interests in the United States.52

It would appear that British experience informed the way in which the systems ofprison

labour were established in the colonies. The system adopted in Queensland was devised so as

not to discriminate against free trade or industry. It was a form ofpublic account, in which

the articles manufactured were either sold to other government departments via the colonial

stores, or used for the maintenance of the penal system itself. The decision of the authorities

to maintain a diversity ofoccupations to prevent discrimination against anyone industry

practised outside the penal system also helped to quell the fears of those opposed to unfair

competition.53 Perhaps another factor contributing to the muted opposition to prison labour

was the widely held opinion that prison made goods were of an inferior quality to those

manufactured by private enterprise, and would be less in demand on the open market,54

When objections were raised, it was usually in opposition to the use of prison labour on public

works projects. In 1896, it was suggested by Superintendent Downie, of Stewart's Creek

Penal Establishment, that prosecuting prisoners for escaping from labour gangs was pointless

because the juries would be largely composed of free labourers who would ensure that a

verdict of not guilty was returned in protest at the divisional board's decision to employ prison

52 McConville, English Local Prisons, pp. 253-64; and Gildemeister, Prison Labour and ConvictCompetition, esp. ch. 8.

53 This was certainly an influential factor in Britain during the late-nineteenth century (see McConville,English Local Prisons, pp. 253-64).

54 Complaints about the quality of the saddles manufactured at Brisbane Gaol in 1875 led the government toappoint a local saddler to make an assessment of the standard ofworkmanship. Not surprisingly, he regardedthem as inferior to those made outside the penal system (Colonial Storekeeper to Under Col Sec, 11 March1875, QSA COLlA207 [0856]). In the face of further complaints two years later, sheriffHalloran remindedthe colonial secretary that the saddles had won prizes at the recent Philadelphia and New South WalesExhibitions (Sheriff to Col Sec, 6 August 1877, QSA COLlA242 [3985]). In 1888, there were morecomplaints made about the quality of the saddles made at St Helena (see the Board of Inquiry into theManagement of the Colonial Stores, QVP, vol. 1, 1888, pp. 561-2 and 639-44).

Chapter 7: Economy, PUIllshment and Reform 341

55labour.

The manner in which St Helena's work regime was structured found support from one of the

most respected penal administrators in the Empire. In an infonnative article on prison labour

published in 1895, Edmund Du Cane outlined a number of difficulties associated with trying

to make profitable industrial labour in prisons a common feature of the English penal

system.56 Not least of these was the fact that it would take at least two months to instruct an

unskilled inmate in the rudiments of a trade, and then at least another month before the

inmate's labour had repaid the investment. According to his calculations, the number of

prisoners serving sentences of three months or more was less than ten per cent of England's

inmate population. What could be done with the remaining majority? The problem was just

as salient in Queensland. For Du Cane, there was no solution to this and other problems, and

he chose to advocate for a system ofprison labour that was more modest in its aims. In his

VIew:

prisons should be looked on as workshops for articles required for theGovernment service, considered as a whole; that is, they should be made sourcesof supply ofarticles required by other Government departments; and that itshould be clearly established as a general principle that it is the duty of theofficers of those departments to find employment for prisoners in making some ofthe numerous articles they require in such large quantities. 57

It would appear that the objectives of the system of prison labour employed at St Helena were

quite consistent with Du Cane's recommendations. The occupations were clearly established

in consideration of the numbers of inmates sentenced to periods ofconfinement of less than

six months, and the entire productive unit was directed towards meeting the day-to-day

requirements of the establishment itself as well as supplying a range of goods for government

departments.

The gradual transition to productive labour did not please everyone. Arthur Halloran, for

example, argued that penal labour should not be sacrificed for profit and requested that funds

55 Superintendent, Stewart's Creek, to CoG, 1 May 1896, QSA PRIlA57 [1204].

56 E.F. Du Cane, "The Unavoidable Uselessness ofPrison Labour", Nineteenth Century, vol. 40, 1896, pp.632-42. See also Michael Davitt, "Criminal and Prison Reform", Nineteenth Century, vol. 36, 1894, pp. 880­3.

57 Du Cane, "Prison Labour", p. 641.

Chapter 7: r';conomy, Punishment and Reform 342

be allocated so that tread-wheels could be built in the Brisbane, Rockhampton and

Toowoomba Gaols.58 But it was clear that by the late-1880s more progressive influences

were beginning to dominate. The Queensland Evangelical Standard, for example, disagreed

with Halloran's argument:

We do not fall in so cordially with the Sheriff's proposal that treadmills shouldalso be provided. Far better try the plan of providing good, honest, profitablework, and encourage with bonuses such as give evidence ofwillingness anddiligence in such work, before resorting to the treadmill slavery.59

Its argument received considerable support when the 1887 commissioners confirmed the

transition to productive labour in their report to parliament:

Purely penal labour, such as the crank, shot drill, and the treadmill, is theunreasoning exercise ofmuscular force, and produces resentment, obstinacy, andhardness in the labourer. It is torture in disguise, can only be carried on for alimited period, and is totally non-reformatory in its effects.6o

The commissioners called for an expansion of the existing prison industries and an extension

of the programme of employing prisoners on public works, especially those on the harbour

and riverside docks at Brisbane and Townsville. Their conclusions matched the new attitude

in Britain, where the uncompromising adherence to the use ofpenal labour had been

diminishing since the late-1870s.61 Halloran's recommendation reflected the ideals of an

antiquated penology that was fast disintegrating in the face of new penal priorities.62

There was some other qualified support for his view, however. William Townley, while

superintendent of St Helena, was so exasperated at the problems caused by association that he

advocated the use of a short term ofpenal labour for each new inmate, especially first

offenders:

58 ARS, 1884, QVP, vol. 1, 1885, p. 538. He also tried to reinstate shot drill until the necessary facilitiescould be erected, but the government declined to provide him with any shot (see ARS, 1886, QVP, vol. 1,1887, p. 661).

59 Queensland Evangelical Standard, 1 October 1886.

60 BI, p. 692.

61 McConville, A History ofEnglish Prison Administration, p. 351.

62 In the colonies, productive labour was more easily introduced than it was in Britain. For a discussion ofthe English situation, see McConville, English Local Prisons, pp. 110-8 & 253-64.

Chapter 7: Economy, Punishment and Ref()rn1 343

I am of [the] opinion that a penitentiary in the metropolis in which penal labouronly should be strictly enforced, and to which all prisoners of short or longsentences should be sent to undergo a certain probationary period, would provethe greatest benefit as a deterrent to crime, and that a short and sharp course ofthis treatment to first offenders would, if more painful, be more merciful than alonger sentence passed in an establishment of this kind, where prisoners are ofnecessity thrown so much together".63

Townley's suggestions were not adopted, however, and productive labour continued to

supplant penal labour, often on the initiative of the various gaolers themselves.64 By the tum

of the century, the larger prisons and Stewart's Creek had established a number of industries,

including mat-making, cabbage-tree hat-making, carpentering, blacksmithing, tinsmithing,

quarrying, and tailoring, to name but a few. But the debate had clearly demonstrated that

there remained some persistent opposition to any reliance on productive labour to reform

prisoners. For many, prison occupations alone would not be enough to rehabilitate offenders.

Rehabilitating the Prisoner

We have seen that, throughout the period under analysis, Queensland's penal administrators

continually professed their faith in the capacity ofproductive labour to refonn prisoners. This

has already been exemplified in the rejection of the concept ofpenal labour in 1868, and in

the adoption ofa mark system in 1892 to further refine the implementation of the reformative

labour programme. But it was a faith born of the necessity to identifY something in the prison

regime that could bring about a meaningful transfonnation in the character of an inmate; for

there was little else in plac~ that could justifiably be regarded as satisfYing this crucial

objective ofprison administration. Thus, when William Townley endeavoured to describe the

methods employed for the refonnation ofprisoners in Queensland in 1891, he outlined a

system that was based on productive labour.65 The only other aspects of prison life geared

towards the refonnation of the prisoner, apart from the punitive strategies embodied in the

discipline, regimentation and orderliness of the standard penal regime, were the regular visits

of clergymen ofvarious denominations and the provision of libraries in each of the major

63 ARSStH, 1885, QVP, voL 1, 1886, p. 592.

64 Captain Jekyll was very keen to re-establish the means for productive employment at the new BrisbaneGaol (see ARS, 1885, QVP, voL 1, 1886, p. 584).

65 W. Townley to Under Col Sec, 5 September 1891, QSA COLIA671 [10118].

Chapter 7: Economy, Punishment and Reihrm 344

prisons.66 It was this latter strategy that Townley frequently emphasised: "Our principal gaols

are possessed of libraries containing carefully selected books, religious, educational, scientific

& literary, travels, biography &c, these are all held in great request by the prisoners and it may

be presumed assist in some degree to elevate their moral character, they are at all events the

chief means employed here to endeavour to bring about the reformation of the convicts".67

Townley's comments may also be read as an indictment on the attempts of the penal

administration to maintain an effective programme ofeducational instruction in the larger

gaols. Most of these facilities offered classes for their inmates, but it is interesting that

Townley did not consider schooling a more effective means for rehabilitating offenders than

private reading. It was no coincidence that self-improvement could be carried out in a

prisoner's free time, and would not impede the labour routine ofeach establishment. In 1886

Townley himself had reported that at 8t Helena during the previous year, the average number

ofprisoners attending classes each week was a mere twenty - this, when the inmate

population averaged 225. He added that "attendance at school had not been made

compulsory. If more time could conveniently be deducted from the hours oflabour, there68would be longer classes. Many would then attend to escape from the drudgery ofwork". It

was clear that work would take precedence over other forms of rehabilitation.

If the government was not prepared to extend the reformative programme beyond trade

training, the responsibility fell upon the churches to do so. In 1874, the Reverend Hassall

condemned the efforts of the Prisons Department in this direction:

And I may now state that under your prison discipline there is no provisiontending to the reformation of criminals. There is no probability that prisonerswill reform. There is punishment for crime and temporary protection to thePublic, so long as men are in custody, but I may safely say that ... in any Prisonwhere men are congregated together simply as a place of punishment few caseswill be found in which they do not leave more hardened and wicked, and more

66 For a history ofthe role of libraries in British prisons, see Janet Fyfe, Books Behind Bars: The Role ofBooks, Reading, and Libraries in British Prison Reform, 1701-1911, Greenwood Press, Westport(Connecticut), 1992.

67 W. Townley to Under Col Sec, 5 September 1891, QSA COLlA671 [10118]. The 1887 commissionerswere also in agreement with Townley's position and, as was mentioned in chapter one, were critical ofTownley's failure to promote reading further (see Bl, p. 716). For more details on prison libraries, see DailyMail, 16 February 1910.

68 ARSStH, 1885, QVP, vol. 1, 1886, pp. 591-601.

Chapter 7: Economy, Punishment and Reform 345

disposed to lead a dishonest life.69

Throughout the nineteenth century the clergy had exercised a traditional role as agents of

reform and, in Queensland, had always maintained a presence in the penal system, albeit a

very occasional one in the early years.

By the late-1870s clergy visits to the colony's penal institutions had lapsed into fairly irregular

occurrences. In 1883, the Anglican Queensland Guardian expressed its dissatisfaction with

this situation, arguing that regular ministrations were crucial to the reformative process within

each gao1.70 But by 1887 a consortium ofprotestant denominations joined with the

Methodists to establish the Dunwich and St Helena Mission, providing regular attendance of

ministers at the penal establishment, along with the reformatory at Lytton and the benevolent

asylum at Dunwich.71 Kinnaird Rose applauded the move emphasising two factors essential

to a prisoner's successful reformation: "the first that they be taught to work, and next that they

be made to realise the idea of a higher life".72 Religious instruction was meant to encourage

the latter. The introduction ofthis new system meant that a minister would stay at St Helena

for a few days each month, conducting services and conversing with the prisoners. After the

first two and a half years of the Mission's operations, the Reverend J. McPherson had spent

seventy-five days on St Helena, and paid the reformatory twelve and Brisbane Gaol forty-one•• 73

VISItS.

Prison work was generally unpopular amongst the congregations, however, and many of the

churches experienced difficulties in raising funds to provide assistance to incarcerated

69 Rev Hassall to Visiting Justice, StHelena, 13 May 1874, QSA COL/A195 [1133].

70 Queensland Guardian, 8 November 1883.

71 Brisbane Courier, 23 November 1887. The Methodist Town and Country Mission had been visitingprisoners since the early l880s (see Week, 26 January 1884 and 21 January 1888) and the CatholicChurchhad arranged for weekly masses on the island during 1883 (see W. Townley to Under Col Sec, 11 April1883, QSA COL/A358 [1820]. Eventually, a rivalry was to develop between some of the churches as to whohad fIrst provided effective services to the prison population (see Brisbane Courier, 19 and 21 March 1887).It did not take long for some smaller churches to follow the lead and become involved in prison work. TheLutheran Church, for example, provided services for six ofonly eight German prisoners confmed in the penalestablishment during 1890 (see supt, St Helena, to Under Col Sec, 15 September, 1890, QSA COL/A629[9806]).

72 Brisbane Courier, 23 November 1887.

73 Week, 18 January 1890.

Chapter 7: Economy, Punishment and Reform 346

criminals. The Protestant Church Chronicle, for example, believed that the majority of its

readership were not even aware that the Church possessed its own prison chaplain, and were

quick to emphasise that "he has received little or no support, but has been doing his best with

no funds for the work, with no organisation to assist him - in fact, under circumstances of

great difficulty".74 In 1894, the Dunwich and St Helena Mission found it so difficult to raise

the funds necessary to remunerate the Reverend MacPherson for his work that they appealed

to the government for a grant of £103.75 A favourable response was not forthcoming,

however, and they were forced to struggle on without state support.

Efforts to continue the reform process following an offender's discharge from prison were

equally as rudimentary. The Church of England, for example, was well aware of the necessity

for such work but there were few practical steps taken towards improving the situation.76 In

the late 1880s, it was the Discharged Prisoners' Aid Society that began with the lofty ambition

of fulfilling this crucial role. Sometime prior to the end of the century, however, the Society

ceased its activities, leaving only the Salvation Army and, to a lesser extent, some ofthe other

religious bodies, to continue prison work. The reason for its disappearance is difficult to

determine. There appears to be little surviving evidence that can shed light on the reasons for

such a move and it is especially confusing when one considers the resilience ofsimilar

societies in New South Wales, Victoria and South Australia. The most likely explanation is

that inadequate funds made it impossible to continue. The apparent success ofthe Salvation

Army in fulfilling this role may also have been a factor.77

The Salvation Army Prison Gate Brigade was formed early in 1890 and it soon acquired its

first premises at Montague Road, South Brisbane.78 The Women's Rescue Home had been

74 Church Chronicle, 1February 1899.

75 See E. Bell to Col Sec, 19 October 1894, QSA COLlA784 [12110]. Included in this file is the annualreport of the Mission for 1893.

76 Church Chronicle, 1February 1899. In 1899 the Church formed a committee to work towards establishinga home for discharged prisoners. It would appear that insufficient funds were raised and prison workremained focused upon those offenders still incarcerated.

77 Brisbane Courier, 10 January 1891 (cited in Lawson, Brisbane in the 1890s, p. 143).

78 See War Cry, 2 April and 21 May 1890; Evening Observer, 15 April and 16 May 1890; Brisbane Courier,15 April1890; Week, 17 May 1890; Brisbane Courier, 15 and 21 April 1890; and Colonel J. Barker to ColSec, 8 May 1890, QSA COLlA615 [5565]. The new building could accommodate a maximum of thirtyinmates. The Boomerang conducted a lengthy interview with a representative ofthe brigade on the nature ofprison gate work (19 April 1890).

Chapter 7: Economy, Punishment and RefC)ftl1 347

doing similar work for discharged female prisoners in the 1880s, and this was the first

Salvation Army initiative directed at assisting male discharged prisoners. Prison work was an

important aspect ofthe Army's programme as it represented the ultimate challenge in rescuing

the fallen from further sin.79 Other Brigades had already been established in New South

Wales and Victoria, and their operations were gradually being expanded each year. The basic

role of the Brigade was to meet with offenders during their terms of imprisonment and

encourage them to avail themselves of the Army's assistance upon discharge, rather than

become reacquainted with their former criminal associates. In fact, Queensland was the first

Australian colony to allow the Salvation Army entry into its prisons to visit inmates due for

discharge.8o Each month lists containing those prisoners who were due for release were

presented to the Prison Gate Brigade and its officers would then address them as a group. On

the day of their release, willing expirees would be met at the prison gates and transferred to

the Brigade's home, where they would remain until they could find employment or transport

to an outlying district.8l It did not take long before many discharged prisoners began to take

advantage of the Army's charity. During 1893, for example, hospitality was provided for 230

inmates, with over half of these finding at least temporary work before the close of the year

and only fifteen returning to prison.82

There were criticisms of the Army's activities, however, especially with regards to

information concerning discharged prisoners' previous convictions being supplied to those in

charge of the Prison Gate Brigade.83 It was argued that such information would enable any

79 For further details on the centrality of prison work see the letter from Colonel F. Bailey, General Secretaryfor Prison Gate and Rescue Work in Melbourne, to Premier, 9 July 1890, QSA COLlA621 [7420]. See alsothe file on the Prison Gate Brigade Home in correspondence, printed reports and newspaper clippings rebenevolent societies and institutions, 1897-1929, QSA COL/293.

80 See C-G of Prisons, NSW, to Captain C. Pennefather, 12 February 1900, QSA PRIJA77 [0670].

81 See War Cry, 6 February 1892. On the establishment of the second home at Lutwyche see War Cry, 22June 1892.

82 See annual report in letter from Major W. Peart to Col Sec, 19 June 1890, QSA COLlA739 [7262J.

83 See Truth, 16 September 1906; QPD, vol. 97,13 November 1906, p. 1647-8; and QPD, vol. 100, INovember 1907, p. 1613. Vincent Lesina thought the issue serious enough to make inquiries in parliament(see QPD, vol. 97,21 August 1906, p. 342). Previously, the Army had experienced some difficulties inattaining permission for their newspaper, the War Cry, to be distributed amongst the colony'S prisons. Aftersome hesitancy, on the grounds that prisoners were prohibited from receiving reading material from theirfriends, the Colonial Secretary eventually acquiesced and gave permission for the local edition of the WarCry to be made available to prisoners (see supt, St Helena, to C-G ofPrisons, 7 April 1896, QSA PRI/A56[1027]).

Chapter 7: Economy, Punishment and Reform 348

untrustworthy member of the Army to blackmail offenders fearful that their criminal past

might be exposed to prospective employers. 84 Nevertheless, in spite of these reservations the

work of the Prison Gate Brigade was generally regarded in a positive light by the majority of

the population. Both the Comptroller-General and the government were very supportive of

the Army's efforts, and limited financial support was regularly provided to encourage a

continuation of the work. 85 Aware that charitable organisations could relieve a substantial

amount of the burden on the public purse usually generated by this form of social work, the

government regarded the provision ofan annual grant as preferable to establishing its own

agencies to cater for the relief ofex-prisoners. It was this mentality that was to remain a

hegemonic feature ofpost-release welfare in Queensland well into the twentieth century, and

was to ensure that state resources would be sparingly expended on reforming offenders

following their release from prison.

With the gradual encroachment of a welfare ethos into the penal realm early in the twentieth

century, there followed a greater emphasis upon developing more effective reformative

measures to deal with the persistent problem of restoring recently discharged prisoners to a

position of respectability in society. But generally the rhetoric was not matched with activity.

The problem was to exasperate the Comptroller-General throughout the first two decades of

the twentieth century. His annual reports regularly lamented the absence in Queensland ofa

body like the New South Wales Discharged Prisoners' Aid Society, although he did not

suggest any potential remedies.86 Consequently, it remained the responsibility ofprivate

organisations, usually religious bodies, to conduct the necessary work.

84 The Prison Gate Brigade Homes also occasionally received criticism for maintaining deplorable conditionsand being receptacles of immorality. In Melbourne during the early 1890s, the War Cry responded tocriticisms printed in the Age of its prison gate and rescue work (see War Cry, 28 January and 4 February1891). Sydney's homes as well were later criticised by the press for operating under 'sweatshop' conditions(see Truth, 15 December 1901). Considering the shortage of funds available for prison gate work, there islittle doubt that the state ofmany of the dwellings was of a poor standard. Nevertheless, disapprovingcomments from sensational newspapers like the Truth may also be interpreted as symptomatic ofacondemnation of Salvation Army practices in general, and should be treated with caution. Conflict betweenBrisbane's Queen Street merchants and the Salvation Army over the public nuisance caused by their streetpreaching had occurred as early as 1881 (see Merchants, et ai, Queen Street, to Col Sec, 2 February 1881,QSA COLlA307 [0515]).

85 See, for example, ARC-G, 1898, QVP, vol. 4, 1899, p. 125; ARC-G, 1900, QVP, vol. 4,1901, p. 1013;and ARC-G, 1905, QPP, vol. 1,1906, p. 1523. See also QPD, vol. 62, 6 November 1890, p. 1299 and vol.70,21 September 1893, p. 839. Without government assistance, the Prison Gate Brigade Home would neverhave survived (see Major C. Quick to Col Sec, 20 June 1890, QSA COLlA620 [7135]). Railway passes wereespecially valued commodities (see Brigadier Jeffries to Col Sec, 4 December 1894, QSA COLlA787[13835]).

86 See, for example, ARC-G, 1925, QPP, vol. 1, 1926, p. 1054.

Chapter 7: Economy, Punishment and Reform 349

-;----~-------- ---- ----._-----~ ... ,

II

~, I

/1/

,I

Illustration 7.1: Salvation Anny Prison Gate Brigade (Boomerang, 19 April 1890)

Chapter 7: Economy, Punishment and Reform 350

One denomination that had underlined its devotion to prison work by regularly conducting a

chaplaincy service was the Methodist Church. In particular, the Reverend William Powell

had established good relations with the staff and inmates of 8t Helena and Brisbane Prison.

His admiration for the work of the most famous of evangelical prison reformers, John

Howard, led him to take a great interest in the welfare of Queensland's prisoners. Aware that

incarceration alone was not enough to tum offenders away from crime, Powell perceived

punishment as a social problem: "It is said that the prisoner problem is the problem of

problems. It has both its legal and social aspect -legal from the point ofview of the prisoner

who has endured punishment for his offence; and social from the point of view ofhis future

position as a good citizen".87 Powell believed that it was the stigma of a prison term that

existed as the greatest impediment to offenders regaining their former position in society. He

was aware that many employers would not engage men or women bearing the 'prison taint',

forcing them into the further commission of criminal offences: "If people be deprived of the

only legitimate means ofobtaining a living how can they live within the limits of the law, and

maintain any sort of honourable existence?".88 Rather than allow discharged prisoners to

suffer beyond the expiration of their sentence, it was the responsibility of any society to

counter this stigma and reclaim its criminal class by transforming them into valuable,

productive citizens:

Society does not object to the financial bankrupt regaining his credit. Why, I ask,should it object to the moral bankrupt regaining his character? Surely he is lowenough to excite the deepest pity, and the difficulties in the way of his regaininghis past position are surely real enough without adding to them the burden of aperpetual stigma.

Consequently, he came to believe that the greatest deficiency of Queensland's penal system

was its lack of concern for the social position of the discharged prisoner.

Powell's ideas were consistent with the tum of the century shift towards catering for the

welfare ofdischarged prisoners. The Brisbane Courier, for example, maintained a similar

position:

87 William Powell, Society's Duty to the Discharged Prisoner, Pamphlet distributed by the Methodist Churchof Australasia, Queensland Conference, c.1918-l9 (JOL OMFSI7/4/4). The pamphlet was certainly read inparliamentary circles (QPD, vol. 131, 19 September 1918, p. 2496; and QPD, vol. 134,3 February 1920, p.2682).

88 Powell, Society's Duty to the Discharged Prisoner.

Chapter 7: Economy, Punishment and Reform 351

Where our present system of punishment for crime fails is in a specialisation ofregenerative effort.... The community cannot shut its eyes to the fact that if itdegrades a man by imprisonment for crime, however just the sentence may be, itsmoral obligations do not end there. Indeed, they only begin there. Our prisonsystem, combined with social ostracism, can only make confirmed criminals.89

In fact, few progressive-thinking Queenslanders would have disagreed with these sentiments;

the problem, as it had been for decades, was how to go about reforming the existing system.

Perhaps influenced by his experience as chaplain to Brisbane's public institutions, Powell was

in favour of an institutional solution. After a few years ofcampaigning, in 1917 he finally

succeeded in convincing the Home Mission Committee to establish a home for discharged

prisoners which would instruct them in the habits ofagricultural labour.90 Once again, it was

a faith in the reformative capacity of labour that was to surface in Powell's proposal. The

scheme was dependent upon raising £2000 from government and public donations, however,

and the committee was continually frustrated during the following two years by a lack of

generosity from both sources. Eventually, sufficient money was collected to purchase some

land at Kuraby, and a house for the superintendent and barracks for the inmates was finally

erected in 1922. Unfortunately, Powell did not live to see the outcome of his tireless efforts,

passing away a few months before the institution was completed. The Home was officially

opened in November 1922 and was renamed in his honour.

Admission to the Home was completely voluntary and willing inmates were met at the gates

ofthe prison by the superintendent and taken to their destination.9! Upon arrival they were

allocated a private room and instructed in a variety of agricultural pursuits integral to the

operation of the Home. These included milking cows, ploughing fields, picking bananas and

other produce, and assisting in the general maintenance of the facilities. There were no racial

or religious restrictions placed upon new arrivals, and the length of stay generally depended

upon how quickly secure employment could be found for each inmate. For the first few years

there were never more than a handful of inmates at any time, however, by 1936 over 300

89 Brisbane Courier, 17 April 1918.

90 See the Minutes of the Meetings of the Prisoners' Aid Sub-Committee of the Home Mission Committee, 16July 1917, JOL OMFS/7/4/1. He also conducted research into the discharged prisoners' aid societies in NewSouth Wales, Victoria and South Australia to assess the techniques employed by these institutions (seeAnnual Reports of various Prisoners' Aid Associations, JOL OMFS/7/4/7, 1913-17).

91 Queenslander, 4 June 1936.

ChClpter 7: Economy, Punishment and Reform 352

discharged prisoners had spent time in the Home.92 The work of the Methodists did not go

unappreciated by the Comptroller-General, although he did consider that there was still a

pressing need to establish other organisations to assist discharged prisoners.93 Nevertheless,

the government was loath to become more heavily involved itself, content that private

agencies were willing to shoulder the burden ofproviding for the welfare of ex-prisoners. It

did, however, enthusiastically continue its annual grant of £200 to the Home - a small price to

pay in comparison with the cost of maintaining a similar state-run institution.

It could be argued that the church efforts at reforming Queensland's prisoners contributed

towards relieving the government of its responsibility for implementing a more

comprehensive rehabilitative programme within its penal system. The work of the Salvation

Army, the Methodists, the mainstream churches, and even the Discharged Prisoners' Aid

Societies, was carried out with minimal funds and the regular infusion of only partial state

support. There were occasionally suggestions in parliament that the government increase its

contribution to the religious bodies involved in welfare work, but these were conveniently

refused on the grounds that it would establish an unwelcome precedent for the provision of

state aid to denominational organisations.94 When, in 1889, it was put to the government that

it should donate to the Salvation Army ten times its present contribution, the Colonial

Secretary replied that "he did not think the State should be asked to do more than it was doing.

Private charity or benevolence should also come in and assist".95 It is interesting to note that

when the Prisoners' Aid Society finally collapsed around the tum of the century, there was no

suggestion that it should be replaced with an entirely state-funded organisation. It was left to

the denominations to fill the breach, and with no extra financial support. It seemed that only a

small annual grant was all the government was willing to expend on the rehabilitation of its

criminal population, despite constant reminders of its fundamental place in a successful penal

system.96 This informal government policy of minimal intervention was matched by an

92 Queenslander, 4 June 1936. In 1928 there were only three inmates (see Committee Meeting Minute Book,William Powell Home for Discharged Prisoners, JOL OMFS/7/4/2b, 1920-31).

93 ARC-G, 1924, QPP, vol. 1, 1925, p. 1125.

94 See, for example, Week, 4 November 1887.

95 QPD, vol. 63, 16 September 1889, p. 1613

96 The Supply debates in parliament regularly included criticisms of the government's rehabilitative work (forexample, see QPD, vol. 63,16 September 1889, p. 1613). Labor member, Thomas Glassey suggested in1891 that the government should provide greater assistance to the Salvation Anny (see QPD, vol. 65, 6October 1891, p. 1395). In 1906, Labor MLA William Mitchell was even more scathing in his criticisms of

Chapter 7: Economy, Punishment and Ref()rm 353

equally limited concern with the internal refonn of its penal apparatus.

The Decline of St Helena

As early as 1884, and only one year after the opening of the new Brisbane Gaol, the Colonial

Secretary was notified by the Superintendent of St Helena that a new penal establishment

would soon be required in the ever-expanding colony.97 Aware that the most fundamental

principle of the current penological paradigm was the strict enforcement of a system of

classification and separation, Townley advocated the erection ofa new concrete structure to

replace the rapidly deteriorating wooden buildings on St Helena.98 His recommendations

were accompanied by a bleak report from the Colonial Architect who estimated that an

establishment entirely composed of separate cells could not be built for much less than

£70,000; whereas, it would cost approximately £40,000 for a structure which retained the

solitary and associated system presently in use.99 Unwilling to expend such a large sum, the

government ofthe day ignored Townley's warning and chose to continue with the existing

system. In so doing, they established a precedent that would be followed by successive

governments for the next five decades.

The next major push for the construction ofa new penal establishment came in 1890 when

draft plans, which had been drawn up three years earlier, were considered by the100 .

government. New South Wales had recently built new gaols at Goulburn and Bathurst and

it was intended to erect a similar structure on St Helena. IOJ The Queensland government,

the government's half-hearted attempts at reforming its prisoners (QPD, vol. 97, 13 November 1906, pp.1649-50).

97 Arthur Halloran had warned in 1879 that St Helena was unsuited as a site for a gaol because its isolationdid not allow for regular and surprise inspections and its wooden structures were too dangerous (see ARS,1878, QVP, vol. 1, 1879, p. 743).

98 Supt, St Helena, to Col Sec, 7 April 1884, QSA COLIA406 [773 8]. Townley wrote: "I need hardly say,that ... a system the success ofwhich may briefly be said to depend upon the isolation and classification ofprisoners; cannot be carried on".

99 Colonial Architect to Under Col Sec, 10 October 1884, QSA COLlA406 [7738].

100 R. Ferguson to Col Sec, 4 November 1890, QSA COLlA636 [11677]. Townley's annual report for 1885again contained a warning that a new establishment was required (see ARSStH, 1885, QVP, vol. 1, 1886, p.592). The 1887 inquiry, however, found against the construction ofa large establishment as, it was argued,more moderately sized ones had been shown to achieve greater levels of efficiency (BI, p. 689).

101 See Ramsland, With Just But Relentless Discipline, pp. 101-7.

Chapter 7: Economy. Punishment and Reform 354

however, was not prepared to commit to spending a similar sum of money (in the range of

£30,000). As an alternative, it was calculated that ifprison labour was utilised and the local

clays and mud from the island precincts were used to manufacture cement, then the project

could be completed with a fifty percent saving. For this to occur though, the prison would

have to be erected on St Helena, adjacent to its source oflabour.

The plan was for a massive structure that could accommodate 900 prisoners, but was

eventually reduced to a maximum capacity of 588. It was designed according to the radiating

principle, which would enable a thorough classification ofprisoners, ensure the safety of its

inhabitants and, with its concentrated form, allow for a high degree of surveillance by the

prison authorities. 102 In appearance, the proposed prison was conceived ofas an unadorned,

austere structure; the clock tower was the only building with any distinction, "its Architecture

being ofa Renaissance character, disposed with quietness, yet expressing the dignity

necessary to convey to the Public mind the nature of the institution".103

Once again, however, the proposal was ignored and the ambitious plans fell into abeyance.

As well as not wishing to outlay the requisite funds, the government was unable to make a

decision on whether the establishment should be erected on St Helena or on the mainland.104

By 1890, however, it was generally agreed that, despite there being some advantages in

erecting the new prison on the island, the outskirts of Brisbane would be the most desirable

location. The justification was twofold: first, the expense oftransport to and from the island

was excessive; and second, the isolation of the island hindered the employment ofwarders

with families and would, in the event ofa breakout by the inmates, impede a prompt response

from the Brisbane police.! 05 Nevertheless, not everyone was so easily convinced of St

Helena's inherent redundancy, least ofall the Comptroller-General himself.

102 See Townley's comments in his letter to the Col Sec, 7 June 1886, QSA COLIA636 [11677].

103 These were the words of its designer, G. Connolly, Colonial Architect (see Connolly to Under Sec forPublic Works, 7 March 1887, QSA COLlA636 [11677]).

104 In 1889, the Colonial Secretary believed that St Helena was the ideal choice (see QPD, vol. 63, 16September 1889, p. 1614) and Townley had always given the impression that he agreed with this opinion.

105 C. Pennefather to Col Sec, 31 December 1890, QSA COLlA644 [0419].

Chapter 7: Economy, Punishment and Reform 355

Illustration 7.2: Proposed New Penitentiary, St Helena, 1890 (QSA COL/A636 [11677])

Chapier 7: Economy, Punishment and Reform 356

From his appointment to the position of Comptroller-General in 1893, Pennefather waged an

annual campaign to have a new penitentiary erected in place of the existing structure at 8t

Helena. 106 He was initially in favour of erecting a replacement on the mainland,107 but by

1910 had changed his opinion to support the alternative option.108 In the following year he

perceived the situation as reaching a crisis point, urging the government to break with its

tradition ofcontinually postponing prison reform and to confront the problem of erecting a

new penal establishment on the island. 109 He articulated his support for retaining the island as

the state's principal penal establishment in tenns of its proven rehabilitative potential.

Pennefather was always keen to emphasise that on 8t Helena the authorities were able to

allow the inmates greater freedom than in the mainland establishments (the chance of escape

being diminished by its isolation), the climate was especially healthy, and a variety of

employment opportunities could be provided to assist in the refonnation process. He believed

it would be shortsighted to sacrifice these advantages in favour oferecting a new prison on the

mainland.

Moreover, Pennefather was equally aware of the remunerative value of the establishment. In

1908, he reported: "[i]n so far as 8t Helena Penal Establishment is concerned, the value of

work perfonned for the State overlaps by a little the total cost ofsalaries and upkeep, and I

venture to state that there are very few prisons in the world ofwhich this can be said".110 The

following year he began comparing St Helena to model establishments overseas, such as the

internationally-renowned Witzwil penal labour colony in Switzerland.111 Ifhis repeated

comments are any indication, there was no doubt that the institution played an indispensable

role in defraying the costs ofthe penal system as a whole.

106 In every annual report he submitted to his superiors, Pennefather reiterated the urgency of attending to theproblem of building a new penitentiary for the southern districts of the colony/state. For the fIrst, see ARC­G, 1893, QVP, vol. 1, 1894, p. 693.

107 C. Pennefather to Col Sec, 31 December 1890, QSA COL/A644 [0419].

108 For example, see ARC-G, 1910, QPP, vol. 2,1911-12, p. 592.

109 ARC-G, 1910, QPP, vol. 2, 1911-12, p. 592.

110 ARC-G, 1908, QPP, session of 1909, p. 519.

111 ARC-G, 1909, QPP, vol. 2, 1910, p. 975. He had consulted Edith Sellers' article dealing with theoperation ofWitzwil (see "A Self-Supporting Penal Labour Colony", Nineteenth Century and After, vol. 67,1910, pp. 108-20) and was greatly impressed by its success.

Chapter 7: Economy, Punishment and Reform 357

But still the criticism continued. One ofthe most frequently aired objections was the serious

risk of fire posed by the rapidly deteriorating wooden buildings on the island. 112 Fears of a

tragedy had been aired in parliament during 1890,113 and the prisoners' tobacco ration was

eventually terminated as a result. I14 This anxiety reached its highest levels around the tum of

the century, however, when it was frequently discussed in parliament and was even drawn to

the attention of the public in a pamphlet composed by a former warder. I IS Even the

Comptroller-General himself felt compelled to notify his superiors of the constant danger. I16

The prisoners were at the greatest risk. Their cells were each locked individually with

separate keys, making it extremely difficult to evacuate the premises at short notice. I I? There

had been fires during the colonial period, an absence of injuries due more to good fortune than

effective planning. IIB In spite of the dire predictions, little was done throughout the remainder

of the penitentiary's existence to reduce the risk to the lives of its inmates. I19 This prolonged

disregard for the safety ofthe prisoners is evidence that the essential maintenance ofprison

buildings was regarded as subordinate to the ongoing quest for profit. The continued neglect

could hardly be considered the fault of the penal administrators, who were diligent in warning

the government of the potential consequences, but was determined in the political realm

through the restriction of funding to the Prisons Department in the face of repeated warnings.

112 See, for example, Telegraph, 4 June 1912; Truth, 10 November 1912; Brisbane Courier, 3 February 1913and 5 February 1914.

113 QPD, vol. 62, 6 November 1890, pp. 1298-9.

114 See QPD, vol. 71, 28 September 1894, p. 685.

115 See, for example, QPD, vol. 83, 17 November 1899, p. 1079; QPD, vol. 86, 17 December 1900, p. 2690;QPD, vol. 88,22 October 190 I, p. 1394; and QPD, vol. 89,24 September 1902, p. 654. The ex-warderincluded some damning allegations about the state of St Helena in his general critique ofthe administration ofQueensland (see Francis, Queensland: The State's Stagnation, pp. 10-11). See also Telegraph, 15 September1905.

116 ARC-G, 1907, QPP, vol. 2,1908, p. 894. Fire extinguishers were not installed until 1903 (ARC-G, 1903,QPP, vol. 2, 1904-5, p. 29).

Il7 In 1908, Pemlefather recommended that an automatic locking device be installed to expedite removalfrom the cells (see ARC-G, 1907, QPP, vol. 2, 1908, p. 894).

lIS See, for example, Evening Observer, 24 & 25 February, 1888; Week, 25 February 1888; and supt, StHelena, to Sheriff, 4 April 1893, QSA PRl/A47 [1088]. The prison authorities were always aware of suchtragedies occurring overseas, see Telegraph, 15 April 1910.

119 The issue was periodically mentioned in parliament as St Helena was gradually being phased out (see,QPD, vol. 112,24 October 1912, p. 1935; QPD, vol. 131, 19 September 1918, p. 2496; and QPD, vol. 134,3 February 1920, p. 2682).

illustration 7.3: St Helena Penal Establishment: Wooden Cells, D Wing, 1915 (ARC-G, 1915­16)

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Chapter 7: Economy, Punishment and Ref~)rnl 359

Yet it was insufficient classification that remained at the core of objections to the existing

state of St Helena. In 1889, Townley had identified inadequate accommodation as being at

the heart of all the problems facing Queensland's penal system. 120 He was well supported by

the findings of the 1887 inquiry:

[T]he associated system has been condemned on all hands. The evils attending it- as disclosed in the course of our investigations - are too great to pennit of itsbeing safely continued. It leads to insubordination, to conspiracies, to discontent,to vices of the most revolting nature; it increases the cost of administration; itprevents the possibility of refonnation on the part of the convicts; it contaminatesprisoners not wholly bad; it, in short - as was tersely put by a shrewd observer ­manufactures crimina1s. I21

In parliament as well, the issue of undesirable association had long been a feature of

discussions about St Helena in particular and the penal system as a whole. 122 At the turn of

the century, Queensland's prisons boasted accommodation for a total of 1,010 prisoners,

although only 487 ofthese could be confined in single cells. 123 Brisbane Prison and Stewart's

Creek were the only prisons entirely comprised of single cells. Despite constant criticism, by

1910 the situation had only slightly improved to fifty-seven per cent of the total

accommodation being provided by single celis. 124 The state ofaffairs at St Helena had not

changed since the 1880s with the establishment only able to accommodate one third of its

inmates in isolation. With such a chronic shortage of single cells it was impossible to institute

an adequate system ofclassification to quarantine certain prisoners from undesirable

influences.

Influenced by the new climate of concern for the welfare ofprisoners, John Appel, Home

Secretary in the liberal Kidston and Denham ministries, was forced to confront the worrying

conditions prevailing in the state's prisons. 125 Spurred on by articles in the press and constant

120 ARS, 1888, QVP, vol. 1, 1889, p. 1185.

121 BI, p. 688.

122 See, for example, QPD, vol. 47,29 September 1885, pp. 853-4. The supply debates following this yearfrequently carried references to the problem of classifYing the inmates at St Helena.

123 ARC-G, 1901, QPP, vol. 1, 1902, table no. 9, p. 1070.

124 ARC-G, 1910, QPP, vol. 2, 1911-12, table no. 10, p. 610. However, the continuing reduction in prisonadmissions led to a corresponding increase in the proportion of single cell accommodation throughout thenext decade.

125 Appel was Home Secretary 11"om June 1909 to February 1915. For details ofhis career, see Australian

Chapter 7: Economy, Punlshment and Reform 360

criticisms of 8t Helena from those involved in the campaign to have the island resumed for

recreational purposes, prison reform became one of his chiefpreoccupations from early in

1911.126 After conducting a few detailed inspections of the state's prisons, Appel was left

with a positive impression of the penal system as a whole and the lot of each of its inmates. 127

Nevertheless, he did hold to the view that the reformation of each offender was the

paramount goal of any civilised society, and was able to identify some aspects of the system

that could be improved in this area. There was certainly no ignoring the constant references

in Pennefather's annual reports to the problems of retaining associated wards in some ofthe

prisons, especially 8t Helena.128 The major reforms consisted of reducing the period of

compulsory separate treatment for inmates by half; eligibility for remissions was now

calculated on the basis of the number of convictions, rather than the old method of length of

sentence; and more liberal privileges regarding visits and correspondence were introduced.

Electric lighting was also introduced in the cells at Brisbane Prison,129 along with some basic

furniture and the permission to keep some minor possessions like family photographs. 130

There were also promises to rid the penal system of the evils of association. The reforms

were eventually instituted in January 1912.131

During the discussions on Appel's reform program some criticism was once again heard from

those who regarded 8t Helena and Brisbane Prison as already being "earthly paradises" .132

This was clearly a reaction to the modem emphasis on welfarism in penal realm, and was

Dictionary ofBiography, vol. 7: 1891-1939, Melbourne University Press, Melbourne, 1979, pp. 83-4.

126 The major articles calling for reform ofthe penal system were in Friday Night, 3 February 1911; Truth, 5February 1911; and Brisbane Courier, 8 & 9 February 1911. Appel conducted a surprise visit to BrisbanePrison soon after, but was satisfied that everything was in good order (see Daily Mail, 10 February 1911 andTelegraph, 9 February 1911).

127 Surprise visits appear to have been his preferred method of inspection (see, for example, BrisbaneCourier, 1 July 1911). .

128 See, for example, ARC-G, 1903, QPP, vol. 2, 1904-5, p. 28; ARC-G, 1907, QPP, vol. 2, 1908, pp. 893;and ARC-G, 1910, QPP, vol. 2,1911-12, p. 950.

129 Lights were eventually installed in the cells ofQueensland's other prisons during the 1920s.

130 See Brisbane Courier, 25 March 191 1; Daily Mail, I April 1911; Rockhampton Morning Bulletin, 3 April1911; ARC-G, 1911, QPP, vol.2, 1912, p. 1211. The new regulations also made warders subject to thesame conditions of other public service employees.

131 For newspaper commentary, see Telegraph, 26 December 1911.

132 Daily Mail, 16 June 1911.

Chapter 7: Economy, Punishment and RcliJrI11 361

manifest in a belief that inmates were being treated too softly. The Daily Mail warned the

government to adopt a more considered approach to prison reform:

Let our prison system be reformed by all means if it is necessary, and let us actupon enlightened principles. But also let the needs of the honest be attended tobefore. those of the felon, and, above all, let the inhabitants of Dunwich be at leastas well provided and cared for as the convicts in Boggo-road, St Helena, or any

h S . 133ot er tate prison.

The less-eligibility principle remained a dominant factor in determining community attitudes

towards prison reform. The Observer offered what was perhaps the most poignant

condemnation in one of its cartoons (see illustration 7.4). Nevertheless, Appel's reforms

received a positive response from most in the community. It would only be in dire

circumstances that the Government's parsimonious attitude to penal reform would be at odds

with public opinion.

The discussions on penal reform that emerged from Appel's campaign sparked renewed

interest in the New Zealand scheme of utilising prison labour for afforestation projects. The

New Zealand system had first been discussed in parliament during 1904 but there was little

done to promote the adoption ofa similar scheme in Queensland. 134 It was not until the Rev

J. Kayll,135 adviser to the Prisons Department ofNew Zealand, visited New South Wales and

Victoria that the issue once again rose to prominence in the southern states and the scheme

was seriously considered. 136 In accordance with the system, prisoners were only eligible for

transfer to a tree planting colony if they were first offenders and had served at least one third

of their sentences. Upon arrival, they would reside in barrack-style accommodation and work

under the supervision of unarmed warders. Despite minimal supervision, there was little

incentive to escape from the isolated locations as the chance of recapture was extremely high

and punishment severe. Kayll argued that "as a rule ... ex-tree planters honestly look for labor

when they get discharged and are quite prepared to take laborious work in the country".137

133 Daily Mail, 16 June 1911. The quotation refers to Dunwich Benevolent Asylum.

134 QPD, vol. 93,1 December 1904, pp. 1082-3; QPD, vol. 96, 18 October 1905, p. 1232; and QPD, vol. 97,13 November 1906, p. 1651. See also Telegraph, 21 May 1906.

135 For some details on Kayll, see Pratt, Punishment in a Perfect Society, pp. 181-5.

136 Sun, 12 June 1911; Daily Telegraph, 13 June 1911; Evening News, 13 June 1911, and Sydney MorningHerald, 13 June 1911.

137 Evening News, 13 June 1911.

Chapter 7: Economy, Punishment and Reform 362

THE WA'1 OJ!' THETRANSGtmsson IS

Illustration 7.4: "The Way of the Transgressor is -" (Evening Observer, 17 June 1911)

Chapter 7: Eeonomy, Punishment and Reform 363

Kayll's visit was followed in 1914 by a brief tour of the New Zealand Inspector-General of

Prisons, C.E. Matthews, who visited Brisbane and met with Pennefather to discuss matters of

mutual interest. 138 The tree planting scheme received the attention of both Pennefather and

Appel but the latter objected to the scheme on a number of grounds: the prisoners should not

be exposed to the public gaze while at work, there was already enough work for them within

~he various prisons, and there was already an abundance offree labour available for such

work. 139 There was a feeling that New Zealand had overcommitted itselfto reform through

19riculturallabour, and it was maintained that Queensland should preserve its blend oftrade

instruction and agricultural pursuits. The fear that any specialisation would disadvantage a

Jarticular industry practised outside the penal system may also have been a consideration.

During his years as Home Secretary, Appel demonstrated himself to be an ardent supporter of

:he retention ofSt Helena as the State's premier penal establishment. In 1912, he cited a

Health ofevidence from notable visitors to the establishment who were all highly

)omplimentary of the system in operation there. 140 Couching his argument in terms of the

narvellous reformative effect ofa prison unencumbered by the imposing walls ofa mainland

nstitution, such as Stewart's Creek, he continually managed to defer the allocation of funds

lecessary for the erection ofa new establishment west ofBrisbane. The promise that new

mildings would be erected at St Helena to allow for the complete separation of the prisoners

Nhen not at work had accompanied his 1912 reforms. By the following year, plans had been

lrawn up for the new structures (see illustrations 7.5 and 7.6).141 The renovations were never

nade, however, as the war put paid to any speedy completion ofthe work and the Ryan Labor

~ovemment failed to revive the project following 1918.142 For a time, the promise of repairs

;ilenced the Comptroller-General's annual criticisms of the establishment; although it did not

38 Telegraph, 29 June 1914; Brisbane Courier, 30 June 1914; and Daily Mail, 30 June 1914. This was nothe fIrst time that Queensland had followed New Zealand's initiatives with keen interest (see, for example,rruth, 26 June 1910).

39 Telegraph, 1July 1914. Appel also argued in Parliament that there had always been a "delicacy" inmtting prisoners to work in view ofthe public (QPD, vol. 116, 17 October 1913, p. 2008).

40 QPD, vol. 112,24 October 1912, pp. 1947-50. The flattering opinions of the Comptroller-General of>risons ofNew South Wales, the Western Australian Colonial Secretary, the Reverend William Asher, arisiting American evangelist, and R.W.H Bligh, general secretary of the Australasian White Cross League,vere among those referred to by Appel in his speech to parliament.

41 ARC-G, 1913, QPP, vol. 2,1914, p. 260. See also Truth, 16 June 1912.

42 Truth, 10 October 1915.

Chapter 7: Economy, Punlshment ane! Reform 364

take long for the press to challenge the government's inaction. 143

The role ofthe press in undermining both public and parliamentary confidence in the St

Helena establishment should not be underestimated. In particular, reports of two escapes in

1911 and 1914 respectively contributed in no small way to the demise of the institution as a

penal establishment. In the first incident, two convicts seemingly staged an overnight escape

from the island. The press immediately learned of the story and ran a series ofarticles on the

supposed escape.144 A fortnight later, the two would-be escapees were discovered hiding in

one of the prison buildings. The resulting inquiry found a number ofdeficiencies in prison

management and construction that had contributed to the incipient escape. Flaws in the St

Helena establishment were clearly in evidence in the report, the investigating magistrate

commenting that "the escape is in a measure attributable to an endeavour to conduct upon

unduly economical lines a prison which in its construction leaves much to be desired on the

score of security" .145 Three years later there was another escape, this time the prisoner

managed to fashion a raft and travel a few miles offshore before being recaptured.146 Escapes

such as these were easily sensationalised by the press. Reports of convicted felons suddenly

free to terrorise law-abiding citizens were easily made to play on the residual public fears of

the 'dangerous' in society. The apparent spate ofescapes from St Helena in 1911-14 did much

to provoke vocal opposition to the retention of the establishment.

How was it that St Helena was able to survive in this climate of severe criticism? Pennefather

may have been influenced by the reformative potential ofan island penal establishment, but

there were other reasons, more convincing to a government unwilling to expend large sums on

its penal system, not to interfere with the status quo. It has already been demonstrated that

from the 1880s St Helena became the most cost effective institution under the control of the

Prisons Department. This trend was to continue well into the twentieth century, with the

143 See, for example, the newspaper articles in Daily Mail, 10 September 1915; and Truth, 10 October 1915.The Comptroller-General was certainly under the impression that a new establishment was to be built in thenear future (see ARC-G, 1914, QPP, vol. 2, 1915-16, p. 468).

144 See, for example, Brisbane Courier, 7 & 8November and 2 December 1911; Daily Mail, 7 & 18November 1911; and Telegraph, 8, 9 & 17 November and 2 December 1911.

145 "Escape of Prisoners from St Helena: Report ofInquiry Held by Mr RA Ranking, Police Magistrate",QPP, vol. 2,1911-12, p. 615.

146 See, for example, Daily Standard, 27 & 31 March, 18 May and 1April 1914; Brisbane Courier, 28March 1914; and Daily Mail, 28 March and 19 & 25 May 1914.

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Chapter 7: Economy, Punishment and Reform 367

prison consistently generating around two thirds of the estimated total value ofwork

performed by prison labour until 1921. 147 This labour was essential in reducing the running

costs of the penal system as a whole. Table 7.1 illustrates the important contribution St

Helena made to the estimated total value of work performed by prisoners in the penal system

and, ultimately, in reducing the annual cost per prisoner. 148 In 1912, the Home Secretary

proudly reported that the net cost of maintaining a prisoner in Queensland was just over £25,

while in New South Wales it was over £48. 149 The labour carried out at St Helena was the

main contributor to this overall productivity. In his annual report for the financial year ending

in 1913, Pennefather was able to comment that St Helena was "practically ... self-supporting",

with the estimated value ofwork performed by inmates (including that for ordinary prison

work) of £13,663 exceeding its total expenditure of £11,736. 150

147 Even Vincent Lesina remarked in parliament that St Helena was providing Queensland with excellentservice and that its inmates should be given every opportunity for useful employment (see QPD, vol. 107, 18November 1910, p. 2181). By 1904, the sisal hemp industry, introduced around the tum ofthe century, wascontributing to the profits ofthe establishment (see ARC-G, 1903, QPP, vol. 2, 1904-5, p. 30; and ARC-G,1906, QPP, vol. 2, 1907, p. 254). For further details on the early history ofhemp cultivation on St Helena,see AJ. Boyd, The Sisal Fibre Industry in Queensland with Notes on Mauritius Hemp, Murva, and theMexican Zapupe Fibre, Department of Agriculture and Stock, Government Printer, Brisbane, 1910.

148 It should be noted that the methods for valuing the profits of prison labour may be misleading, and shouldbe interpreted as indicative only. Valuations ofunsold goods, for example, may not have been accuratepredictions of their eventual sale prices, if, indeed, they were ultimately sold. But even if the value of prisonlabour was consistently overstated by Queensland's penal officials, their estimates at least allow the historianto draw comparisons between institutions, and thus determine which institutions were the most important indefraying the costs of imprisonment.

149 bQPD, vol. 112,24 Octo er 1912, p. 1951.

150 ARC-G, 1913, QPP, vol. 2, 1914, p. 238.

Chapier 7: Economy, Punishment and Reform 368

Table 7.1: Value of Work Performed at St Helena, 1879-1914

Value of work% of total

Value of work% of total

Year performed atvalue of work Year performed at

value of work

St Helena*performed in

St Helena*performed in

Prisons Dept Prisons Dept

1879 £3431 na 1897 £10 906 59

1880 £6357 na 1898 £9631 54

1881 £5567 na 1899 £11 381 57

1882 £4366 na 1900 £11 773 56

1883 £6503 na 1901 £10827 64

1884 £6768 na 1902 £9749 63

1885 £6715 na 1903 £9381 58

1886 £12423 na 1904 £11 574 62

1887 £12399 na 1905 £10 713 62

1888 £12 182 79 1906 £11488 64

1889 £11 206 7D 1907 £10 376 62

1890 £9997 na 1908 £12447 66

1891 £10173 65 1909 £11 555 64

1892 £8593 61 1910 £13 406 64

1893 £8757 58 1911 £12535 63

1894 £10639 61 1912 £13 054 61

1895 £9788 57 1913 £13663 63

1896 £11 231 59 1914 £13793 64

*value of labour performed by prisoners, including the value ofwork for ordinary service of the prisons

Source: ARSStH, 1879-90; ARS, 1879-92; and ARC-G, 1893-1914.

By 1915, however, attention became focused upon the cost ofSt Helena in relation to the total

expenditure of the entire penal system. lSI It was revealed that out of a total expenditure of

£30,537, St Helena alone had cost £11,468. The estimated value ofprison labour still

exceeded its expenses, but the margin amounted to a mere £2,584. At the close of 1916 the

difference had dwindled to £118, and by 1919 it had resulted in a clear loss of £7,192 (see

table 7.2). Added financial pressure had come from an increase in commodity prices during

1916 and the appointment of five new warders to the existing complement oftwenty-eight to

accommodate the recently-introduced eight hour day principle.152 World War One had

lSI ARC-G, 1915, QPP, vol. 2,1916-17, p. 413.

152 ARC-G, 1916, QPP, vol. 2, 1917, p. 449. A total of twelve new warders were appointed the penal system

Chapier 7: Economy, Punishment and Reform 369

exacted a heavy toll on the Australian economy. The country lost some of its most valuable

markets overseas and the inflow of labour and capital had been CUt. IS3 Queensland's industrial

development was especially hard hit by the loss of labour, and the cost of living suffered from

a dramatic increase in prices. 154 Industrial unrest also began to increase. ISS In 1916 the

Prison Employees' Union officially became an industrial union following passage of the

Industrial Arbitration Act. ls6 New rates ofpay and conditions ofemployment were

negotiated in 1918. These latter changes must have added considerably to the operating costs

of St Helena in particular, given the transportation costs associated with its staff of warders.

With these unflattering financial returns in mind, it is difficult to take seriously Peirson's

optimistic review of the operation of the penal system during 1919: "[d]uring the year the

various establishments have been conducted as far as possible in the interests of reform and

economy consistent with efficiency".157 An acute tension had developed between the

competing goals of economy, punishment and reform, and a fundamental paradigm shift

seemed inevitable. After half a century of service, St Helena's position at the heart of

Queensland's penal system was under threat.

in this year.

153 Macintyre, Concise History 0/Australia, pp. 160-1.

154 Price fIxing and wage regulation was adopted by both State and Conunonwealth governments. Even afterthe War, the Queensland government maintained the responsibility for price fIxing in the State (see pp. TJ.F.Rilla, A History o/Queensland Public Finance. The Sixth Decade, 1910/11-1919/20, Department ofEconomics Discussion Papers, no. 232, University ofQueensland, 1998, pp. 9-10).

155 Raymond Evans, Loyalty and Disloyalty: Social Conflict on the Queensland Homefront, 1914-18, Allenand Unwin, Sydney, 1987, pp. 69-71, 80-4, 137-9, and 178; and Fitzgerald and Thornton, Labor inQueensland, pp. 33-6.

156 Barry A. Cotterell, "The Machinery ofGovernment", in Murphy, et al (eds), Labor in Power, pp. 78-9.The Worker had for many years suppolied an eight hour dayfor prison warders (Worker, 16 October 1897).

157 IARC-G, 1919, QPP, vo. 2,1920, p. 238.

Chapter 7: Economy, Punishment and Reform 370

Table 7.2: Annual Expenditure Against Value of Work Performed at St Helena(available figures), 1913-1919

Year Expenditure Value of work Marginperformed*

1913 £11 736 £13663 £1927

1914 na £13793 na

1915 £11 468 £14052 £2584

1916 £13291 £13 409 £118

1917 na na na

1918 na £8163 na

1919 £15238 £8046 -£7192

*value of labour performed by prisoners, including the value ofwork for ordinary service of the prisons

Source: ARC-G, 1913-1919.

In 1921, under the direction ofthe Labor Home Secretary, William McCormack, the

Comptroller-General instituted major structural reforms which were to curtail the integral role

that St Helena had hitherto played in the operation ofthe penal system. Finally, the

government had decided to deal with the persistent problems generated as a result of gradual

decay and penological obsolescence. The issue ofclassification for longer term offenders

could no longer be avoided as it placed Queensland well behind most other western nations

actively involved in penal reform. 158 As was mentioned in chapter four, a building was

erected alongside Brisbane Prison and the small number of women occupying the female

division were moved aside to be replaced by St Helena's 'long-timers,.159 In this way, a

complete system ofclassification (for male prisoners) could now be implemented. The

Department also began the gradual transfer of the St Helena workshops to Brisbane Prison,

and the penal establishment was converted into a prison farm with approximately fifty to sixty

prisoners remaining there to maintain the various agricultural enterprises. Those left behind

were kept in separate cells and, from the mid-I920s, were allotted the pleasurable task of

slowly demolishing the structures which formerly comprised the prison. 160 In typically frugal

158 'See ARC-G, 1919, QPP, vol. 2,1920, p. 239; and ARC-G, 1920, QPP, vol. 2, 1921, p. 596.

159 For a detailed discussion of the restructuring, see ARC-G, 1921, QPP, vol. 2, 1922, p. 515. See also,Observer, 29 August 1921; and Daily Mail, 1 September 1921.

160 These were generally long serving prisoners who were nearing the end oftheir sentences. QPD, vol. 147,

Chapter 7: Economy, Punishment and Ref()rt11 371

manner, the materials were preserved and transferred to Dunwich Benevolent Asylum and

some of the nearby Aboriginal settlements for use in the construction of new buildings. By

postponing the inevitable, successive administrations had managed to avoid the financially

burdensome task of erecting a new penal establishment. The general decline in imprisonment

rates (especially for women) had created the option of simply extending existing facilities,

rather than investing in an expensive new structure.

This significant structural shift in the administration of the penal system could not have

occurred without the necessary economic conditions outlined above. For such dramatic

change to occur in the penal realm, a desire to reform had to be accompanied by theeconomic

exhaustion of the previous system. The Comptroller-General, however, offered a much more

sanguine interpretation. Formulating his explanation in terms of the triumph ofa progressive

concern for the welfare ofthe offender, he attributed the motivation for the restructuring to a

desire to bring Queensland into line with modern penological methods: "The whole of the

new system is formed on the principle of reformation, and not with a vindictive desire to

punish, which would be to the detriment of the recognised principle of humanitarian

treatment". 161 His comments masked the real motivation for the restructuring. Economically,

the system had once again achieved its former balance: in I 920, the gross cost ofmaintaining

each prisoner had risen to £124 and the net cost to £92; three years later it was £106 and £66,

respectively (see table 7.3).162 The centre-piece ofQueensland's penal system had now

moved to the capital and Brisbane Prison took over as the productive nucleus of the prison

economy (see table 7.4).163 This did not represent a permanent shift to the artisan trades,

however. Just as the agricultural facet ofthe St Helena experiment was being dismantled,

Queensland's politicians and penal administrators were again demonstrating their unshakeable

faith in the reformatory capacity ofagricultural labour.

8 October 1926, p. 995; QPD, vol. 150, 1December 1927, pp. 1459-60; and ARC-G, 1926", QPP, vol. 1,1927, p. 1146.

161 ARC-G, 1922, QPP, vol. 1, 1923, p. 1104.

162 ARC-G, 1923, QPP, vol. 1, 1924, p. 1011.

163 Compliments on the new facilities in Brisbane Prison had begun to flow by 1925 (see, QPD, vol. 146,6October 1925, pp. 1030-1).

Chapter 7: Economy, Punishment and Reform 372

Table 7.3: Estimated Cost per Prisoner Taking into Account Value of LabourPerformed by Inmate Population, 1904-23

Gross costPrisons Dept-

Gross costPrisons Dept -

Yearvalue of work Net cost per Year value of work Net cost perperperformed for prisoner***

perperformed for prisoner***

prisoner*the state**

prisoner*the state**

1904 £44 £10193 £26 1914 £59 £14620 £28

1905 £40 £8893 £24 1915 £64 £15 135 £32

1906 £47 £10 038 £27 1916 £78 £15897 £41

1907 £50 £9320 £30 1917 £97 £11235 £61

1908 £46 £11 567 £23 1918 £120 £8467 £89

1909 £48 £10896 £26 1919 na £8516 na

1910 £48 £13072 £22 1920 £124 £10383 £92

1911 £51 £12952 £25 1921 na .£9351 na

1912 £56 £14131 £27 1922 na £14290 na

1913 £59 £14262 £29 1923 £106 £13427 £66

*cost includes supervision, maintenance and all other requirements** value oflabour performed by prisoners, less the value of work performed in the ordinary service of the prisons*** following deduction of the value of labour performed by prisoners, less the value ofwork performed in theordinary service of the prisons

Source: ARC-G, 1904-23.

Chapter 7: Ecot1onw Punislnnent and Reform 373

Table 7.4: Value of Work Performed by Prisoners, 1901-1926

Year Prisons Dept - Prisons Dept - value Brisbane Prison St Helena - valuetotal value of of work performed - value of work of work

work performed* for the state** performed for performed forthe state** the state**

1901 £16832 £9116 £427 £7 702

1902 £15394 £7405 £203 £5976

1903 £16090 £7155 £384 £5522

1904 £18724 £10 193 £1 161 £7798

1905 £17144 £8893 £I 520 £6374

1906 £18041 £10 038 £1727 £7569

1907 £16793 £9320 £1895 £6763

1908 £18861 £1 I 567 £2106 £8914

1909 £18196 £10896 £2327 £7887

1910 £20788 £13072 £2304 £9514

1911 £20008 £12952 £2794 £9041

1912 £21259 £14131 £3 133 £9598

1913 £21573 £14262 £3067 £10024

1914 £21 580 £14620 £3106 £10 110

1915 £22 156 £15 135 £3412 £10377

1916 £15897 £15897 £3225 £10873

1917 £15 58 I £11 235 na na

1918 £13328 £8467 £1647 £5374

1919 £13584 £8516 £1582 £5232

1920 £15 833 £10 383 £1664 £7117

1921 £14353 £9351 £2568 £4950

1922 £19871 £14290 £9570 £2345

1923 £18854 £13427 £8946 £3958

1924 £15341 £10453 £5648 £865

1925 £15927 £11 570 £7722 £1 163

1926 £16066 £10436 £7 691 £244

*Value oflabour performed by prisoners, including the value of work performed in the ordinary service ofthe prisons** value of labour performed by prisoners, less the value ofwork for ordinary service ofthe prisons

Source: ARC-G, 1901-26.

Chapter 7: Economy, Punishment and Reform 374

Prisons Without Walls

By the mid-1920s, the need for an institution along the lines of Britain's Borstal model had

become more acute. 164 In 1924, the government investigated the possibility of sending only

firstoffendingjuvenile criminals to St Helena so that they could be isolated on a prison farm

like the one established at Emu Plains in New South Wales during 1914. 165 In accordance

with the principles ofa prison farm colony, few warders would be required to supervise the

inmates and a substantial saving in this area of prison expenditure could be effected. A

provisional assessment of the cost of refurbishing the ailing establishment at St Helena was

requested, but it was decided that there were too few juvenile prisoners entering the penal

system to make the reorganisation worthwhile. In 1924, V. Winstanley, Labor MLA for

Queenton, made a lengthy speech in Parliament advocating the practice of agricultural labour

as the most appropriate reformatory treatment for prisoners. 166 He again cited the New

Zealand farm colony system as evidence in support ofhis claims, and argued that the William

Powell Home was working in the right direction. For Winstanley, it was time that

Queensland established a "self-supporting farm colony" where prisoners could be spared the

experience ofconfinement behind four walls and receive the benefit of labour in the open air.

During the following year the government declared its intention ofestablishing just such an

establishment as soon as an appropriate area of Crown land could be identified. 167

Winstanley's arguments were consistent with the gradually developing international

penological opinion on the benefits of confining offenders in prisons organised around a work

regime based on agricultural labour. This idea of utilising agricultural labour in prisons was

not a new one. The novelty in the early twentieth century rhetoric was the idea that certain

. classes ofprisoners could be confined in minimum security penal labour colonies to enhance

their prospects of rehabilitation and to harness their labour in a productive industry, the cost

effectiveness of this labour enhanced by inexpensive security.168 New Zealand's afforestation

camp scheme was a practical application of this new ideology. However, not all expert

164 CAR -G, 1925, QPP, vol. 1, 1926, p. 1054.

165 CoG to Under Sec, 26 May 1924, QSA PRlJA153 [4820].

166 QPD, vol. 143,5 September 1924, pp. 668-70.

167 QPD, vol. 146,6 October 1925, p. 1033.

168 For a discussion, see Rams1and, With Just But Relentless Discipline, ch. 7.

Chapter 7: Economy, Punishment and Ref(,nIl 375

opinion was in favour of the new emphasis on congregate labour in low security agricultural

labour prisons. William Tallack, for example, was extremely sceptical of the reformatory

potential of institutions which were not structured on the separate system, arguing that

whatever profit was earned by prison labour would be negated by the expense incurred as

numbers of reoffenders increased. 169 Nevertheless, Mark Finnane has contended that in the

Australian penal systems in this period, "a discourse of reform emerge[d] that emphasised the

merits of healthful environments, in which the walls of the prison were less evident and the

opportunities for productive agricultural work were abundant" .170 Evidence of this new

discourse may be found in an article on the use ofagricultural labour in Australian prisons

prepared by Walter Campbell, the New South Wales Director ofAgriculture. Campbell

enthusiastically reported:

The improvements made in the management of prisons in New South Walesduring recent years, whereby a sound principle of classification of prisoners hasbeen adopted and the best use made of waste labour, the initiation of agricultureor horticulture and making good use ofwaste land, have proved most beneficialto the state, the general public, and the prisoners. 171

Finnane has suggested that this new discourse of reform was closely linked to the idea of

indeternlinate sentencing, providing a suitable reformatory option for the treatment of

recidivist offenders eligible for graduated release. In Queensland, however, it was a different

class Dfoffender who was destined to benefit from this new approach to confinement.

At the same time as discussions were taking place about the type of institution needed in

Queensland's penal system, the issue ofwhat to do with juvenile offenders between the ages

of seventeen and twenty-one was also being contested. In As was mentioned in chapter four,

the mid-1920s brought with it an increase in admissions of this class ofoffender to the point

where the establishment ofa new institution became the main priority of the newly-appointed

Comptroller-General, William Gall. I73 Gall considered that the only other option was to

169 Tallack, Penological and Preventive Principles, ch. 9.

170 Finnane, Punishment in Australian Society, p. 81.

171 Walter S. Campbell, "Agricultural Work in Prisons", World's Work, June, 1912, p. 92.

172 Seventeen was the maximum age that a youth could be sentenced to a tenn in a reformatory, althoughinmates could be held beyond that age if it was deemed appropriate.

173 Most had been convicted of minor property offences (see ARC-G, 1926, QPP, vol. 1, 1927, p. 1149).

Chapter 7: Economy, Punishment and Ref()Wl 376

confine these offenders in Westbrook Refonnatory alongside younger inmates, where they

could serve a minimum sentence of six months and then, if well behaved, be "licensed out to

fanners or others who would be willing to employ them and in such employment be earning

something for themselves and saving the community the cost of their maintenance" .174 His

preference, however, was for the construction ofa new institution that replicated the emphasis

on agricultural training at Westbrook, in particular, fanning, dairying, and pig raising. 175

After learning the rudiments of such labour, those youths not hired out to fanners could then

b k ffi · 176e sent to wor on a orestatlOn reserves.

The hegemonic belief in the value of this form of labour is demonstrated by the fact that it

was also being encouraged for the employment of long serving prisoners approaching

release. 177 In this particular case, however, it was not because ofthe perceived reformatory

effect of outside labour that the scheme was being advocated. Rather, it was stimulated by a

recognition that the employment prospects of these prisoners were especially grim, and was

calculated to equip them with the most basic skills for farm labouring work. Such

employment could be found well away from the site of their criminal indiscretion and

concealed them from the scornful eye ofurban acquaintances and potential employers alike.

By the late-1920s the problem of overcrowding was once again looming. The authorities

were expecting an increase in prisoners as a consequence of the planned introduction of

consorting legislation and St Helena would soon be closing, necessitating the transfer of its

inmates to the mainland. 178 Gall recommended the construction ofa new prison near

Brisbane with up to 500 acres ofadjacent land which could be used for agriculturallabour.179

With the accompanying increase in accommodation, better classification could be effected

and juvenile prisoners kept separate from hardened offenders. 180 By 1933, however, Gall had

174 ARC-G, 1926, QPP, vol. I, 1927, p. 1150.

175 ARC-G, 1927, QPP, vol. 1, 1928, p. 971.

176 It was even suggested that Fraser Island would be an ideal location for such a project.

177 1ARC-G, 1927, QPP, vo. 1, 1928, p. 970.

In IARC-G, 1929, QPP, vo . 1, 1930, p. 984.

179 ARC-G, 1928, QPP, vol. 1, 1929, p. 1248.

180 His report did not pass unnoticed during the Supply debate in parliament (see QPD, vol. 154,24 October1929, p. 1145).

Chapter 7: Economy, Punishment and Reform 377

altered his opinion in favour of establishing a 1000 acre prison farm in which male offenders

aged between seventeen and twenty-five would be engaged in the intensive cultivation of

vegetables. I 81 The land would be divided into small units and the prisoners would work in

gangs with one member acting as an elected leader. 182 With the official closure of St Helena

in the following year, the government moved to endorse Gall's scheme and set about

identifYing a suitable site.183

Eventually, they settled on an area of land south-west of

Rathdowney, and the Palen Creek Prison Fann was established after May 1934.184 The new

institution was modelled on the Emu Plains and Tuncurry facilities in New South Wales. 18s

Another prison fann for males was later established at Numinbah in 1940, and others

followed throughout the next decade. 186 The paradigm shift was now complete. The

Queensland penal system had finally embraced the concept of 'prisons without walls', and the

authorities would now attempt to "reclaim the land by the man, and the man by the land".187

Conclusion

The idea that prison labour should be exploited to compensate the state for the cost of

imprisonment dominated the colonial discourse on punishment even before separation from

New South Wales. Early dissatisfaction with the practice of employing labour gangs outside

the prison walls forced the authorities to establish a structure for the employment ofprisoners

that was confined to the prison itself. The notion that prisons could become self-supporting

1& I Since the mid-1920s, Gall had been collecting infonnation on the utility ofagricultural labour in penalsystems outside ofQueensland. See, for example, the reports in the Gall Collection, Estrays, 1869-1934,

I QSAN8724.

1&2 ARC-G, 1932, QPP, vol. 1, 1933, pp. 929-31.

1&3 QPD, vol. 163,26 October 1933, pp. 1025-6. St Helena was closed by proclamation on 17 February1934 (QGG, vol. 142, no. 43, 1934, p. 965).

184 QGG, vol. 143, no. 136, 17 November 1934, p. 1359. The rules and regulations for the new institutionmay be found in QGG, vol. 143, no. 153,1 December 1934, pp. 1537-8. For details of the plans to establishPalen Creek see Palen Creek State Farm, 1931-57, QSA N19963 Prisons Department, Special SubjectBatches, 1881-1972. It is interesting to note that by this time New South Wales had already established sixsimilar institutions (see Ramsland, With Just But Relentless Discipline, pp. 209-28).

185 Tuncurry was established in 1913 and Emu Plains in 1914 (see Ramsland, With Just But RelentlessDiscipline, p. 210).

1&6 IQGG, vo. 154, no. 21, 27 January 1940, p. 418.

1&7 The quotation comes from Frederick-Auguste Demetz, founder of the Mettray reformatory in France (seeTallack, Penological and Preventive Principles, p. 221).

Chapler 7: Economy, Punishment and Re!()fm 378

institutions was immediately operationalised with the establishment of the island penitentiary

of 8t Helena. Queensland's penal administrators were intent upon improving the productivity

of the institution through the introduction of a diverse range of occupations and

experimentation with industries such as sugar manufacturing. The labour power of the

inmates was organised to support the needs of the institution and to defray its costs by

supplying government departments with prison-made goods. Despite regular calls to enhance

the punitive element in the work regime, the emphasis remained on productive labour.

A consequence of the emphasis on production was the continual neglect ofthe rehabilitation

of the inmate population. There was little in the institutional regime geared towards the

reclamation of offenders apart from some rudimentary attempts at schooling and the

availability ofbooks, .leaving the administrators to argue optimistically that it was the work

regime which would reform inmates. This subordination ofprison reform to the exigencies of

the penal economy led to the maintenance ofa penal system that was increasingly at odds

with modem trends in penology. The objective of separation and the introduction of

innovative reformative techniques both suffered as a result of the desire to maximise the penal

system's productive capacity. The continued economic success of 8t Helena gave rise to a

logic ofprison reform that was based on what could be afforded, rather than what was

required. Consequently, the administration of Queensland's penal system was more attuned to

maintaining levels of custodial acceptability or administrative comfort, than achieving

maximum efficiency in satisfying the objectives ofpunishment and reformation. The

persistent resort to voluntary organisations to carry out the process of rehabilitation in many

respects abrogated the state of its responsibility to do so. The absence ofa powerful reform

tradition throughout the years of colonial government ensured there would be no threat to the

pragmatic political opposition to state-funded rehabilitative measures. Ifthere was no

pressure for change emanating from the electorate or from influential prison reform societies,

then what would encourage governments to outlay funds on improving the conditions for its

prisoners? Reform was only fostered when it could be implemented within tolerable fiscal

boundaries.

While simple institutional inertia played a role in the longevity of 8t Helena, its income­

generating capacity was the overriding factor. In the face of mounting criticism of the

establishment, the authorities continued to profess their faith in its reformative capacity,

instituting a series of minor reforms aimed at extending its life and deferring the need to

Chapter 7: E~conomy. Punlshment and Reform 379

expend funds on a new facility. Only after the productive capacity of 8t Helena was

neutralised by the vagaries of the state's post-War economy did the authorities abandon their

reliance on the institution and re-structure the penal system accordingly. In the wake of8t

Helena's demise, new possibilities were created for the confinement of prisoners and

Queensland witnessed the establishment ofa new institution - the prison farm.

From the evidence presented in this and earlier chapters, it is clear that the desire for economy

was the primary force impacting on the process ofpenal change in Queensland. On the

strength of this observation, perhaps it is time to discard the search for a consistently strong

positive correlation between labour market fluctuations and incarceration rates, and devise a

theory which takes into account more general economic considerations, especially the place of

prison production in the wider economy, when attempting to explain penal transformations.

There are a number of questions which scarcely receive consideration in traditional political

economies ofpenal history. In what circumstances does the state allocate resources to

provide punishment? What level of expenditure can be tolerated by the state in supporting

and expanding its penal apparatus? How does the allocation of resources respond to and

impact upon the goals, objectives and structures of imprisonment and mediate relations within

the institutional setting? This is not to suggest that the work ofFoucauIt, Melossi, Rusche and

Kirchheimer, and others who have noticed the importance ofpolitical economy is redundant;

but that perhaps they are too narrow in their focus, and would benefit from a much more

broad-based approach that investigates the net financial cost of incarceration to a society as a

principal factor in the history ofpenal change.

COllclusion: Punishment and Colonialism Reconsidered 380

Conclusion

Punishment and Colonialism Reconsidered

The Queensland penal system underwent a process of significant change during the years

1859 to the 1930s. As its penal apparatus grew in size and complexity, the ideology and

practice ofpunishment was transformed from a classical penality, reflexively modelled on

Victorian penal traditions, to what may be described as an embryonic form ofpenal-welfare

ideology and practice. This process of change can be understood as a direct response to

transformations in the international penal environment. The trajectories ofpenal change were

also determined by Queensland's status as a colonial society, its distinctive social and

economic circumstances setting limits on the development ofpenality within its boundaries.

What then were the distinguishing characteristics ofpenality in Queensland in this period, and

what are the implications for the existence ofa distinctive colonial penality? Before

addressing these questions, however, it is necessary to make two points of clarification.

First, it is perhaps uncontentious to suggest that the peculiar circumstances ofcolonialism

have led to the development of distinctive penal forms. It is a somewhat more difficult task to

identify all the particular aspects ofcolonialism that are responsible for shaping the distinctive

contours ofpenality. The circumstances of colonial societies are complex, and there are

numerous and varying factors that have contributed to the development ofpenality in such

jurisdictions. I have suggested in the introduction, and especially in the final chapter, that the

economic structure and the related ideology ofaspiration and competition have both played

significant roles in defining punishment in colonial Queensland, and posited further causes

throughout the remainder of the text. But this does not complete the story. Many questions

remain unanswered. For example, how does the history (and memory) of convictism impact

on penality in some colonial societies? How do feelings of vulnerability experienced by

colonists living far from their cultural roots impact on the treatment of offenders and

condition the development ofpenal forms? How important is the fluctuating gender

imbalance and other peculiar demographic features? How does the experience of the

harshness and austerity of life on the frontier influence attitudes towards offenders?

Identifying all such causes and assessing their impact is a complex and laborious task, and one

that is beyond the scope of this thesis. We must continue to look forward to the production of

a cultural history ofcrime and punishment in colonial Australia to provide some of the

answers to questions such as these. The object of this thesis, however, has simply been to

Conclusion: Punishment and Colonialism Reconsidered 381

demonstrate that there is a strong case for examining the specificities ofpunishment in

colonial settler states and good reason to go further and attempt to answer some of the

questions posed above.

The second point ofclarification concerns the transferability of the conclusions in the present

study. This thesis has identified the major distinguishing characteristics ofpenality in colonial

Queensland, and has gone some way towards explaining the reasons for the existence of these

features. While these characteristics in combination serve to identify the Queensland penal

system, they do not necessarily represent the emblematic features ofcolonial penality. It

remains to be seen whether other colonial states experienced comparable challenges to penal

convention, and adopted either analogous or divergent penal policies and practices in

response.! As stated in the introduction, the substantiation ofa colonial penality is a

comparative project of considerable scope, one that is beyond the present study. The findings

ofthis study do, however, represent an initial contribution to this project. It is only through

evaluating these findings against those ofother jurisdictions that it will become possible to

differentiate the common features of colonial penality.2

The first important point to grasp about penality in the colonial context was that it was

essentially derivative, its concepts, policies and practices ofpunishment in large part

borrowed from overseas, mainly from Britain. The Queensland penal system maintained

consistency with Victorian penality in all crucial respects: it consisted of gaols and penal

establishments; youths and women were confined in separate institutions; the architecture of

the institutions ofconfinement was derived from British convention; the policies and

procedures ofprison administration resembled in essence those ofBritain. They were not,

however, mere imitations of the parent jurisdiction. There was certainly a deliberate attempt

I David Brown's observation that the state penal systems ofcontemporary Australia are strikingly dissimilarsuggests that inter-jurisdictional difference must be considered in any formulation ofcolonial penality (see"Penality and Imprisonment in Australia", in Robert P. Weiss and Nigel South (eds), Comparing PrisonSystems: Toward a Comparative and International Penology, Gordon and Breach, Amsterdam, 1998, pp.367-400). The existence of alternative penal responses to similar problems may yet undermine the relevanceof the concept ofcolonial penality (although comparison with non-colonial jurisdictions must occur beforethe concept can be considered redundant). But this will simply provide the historian with a new project: toinvestigate why various colonial administrations chose the penal strategies they did when a range ofpossibilities existed.

2 It is encouraging to note that there is an increasing collection of studies devoted to comparative penology inthe contemporary context, suggesting that we may not have to wait too long for a similar historical study. Fora review ofthis work, see Weiss and South (eds), Comparing Prison Systems, pp. 1-15.

Conclusion: Punishment and Colonialism Reconsidered 382

to imitate wherever possible, to graft onto local circumstances. But the particular exigencies

of colonial society dictated that appropriate modifications to imperial practice would be made.

This process of pragmatic adaptation frequently gave the appearance of a confused

understanding of Victorian penal policy and practice. In the 1860s, the imperial authorities

were quick to seize upon this apparent misunderstanding and preach to the Queensland

administration about the virtues ofpenal labour and separate treatment. There was little point

in doing so, however, as Queensland's penal administrators had made a conscious decision to

continue with remunerative labour and to make do with a system ofconfinement that

incorporated association. The desire to reduce the cost of imprisonment to the colonial state

ensured that the productive capacity of inmates would be exploited wherever possible and no

significant expenditure would be approved for extravagant new structures in which all

prisoners could be confined in separation. The establishment of the penal institution on St

Helena, at the very time that the Carnarvon Committee's recommendations were being issued

throughout the dominions, was a practical application of this colonial variation on imperial

policy. It was in this institution that the Queensland authorities' aspirations were most

unambiguously expressed: the establishment ofa diverse range ofprison industries for the

productive employment ofthe inmates and the widespread use ofassociated confinement in

inexpensive hardwood structures. Deviations such as these represented an acknowledgment

that Victorian penal policy and practice would not adequately meet the demands ofcolonial• 3

society.

An area in which imperial doctrine provided little foundation for the development of colonial

penal policy and practice was the punishment of indigenous peoples. As far as the Colonial

Office was concerned, all prisoners were to be treated equally regardless of race. The

Queensland authorities, however, acknowledged the need to develop specific penal practices

for the treatment ofAboriginal and Islander offenders. From the 1870s, there was a

recognition that the effects of close confinement were detrimental to the health of Aboriginal

prisoners. It was suggested that a form of island penitentiary would be the most appropriate

institution for such offenders. The authorities, however, persisted with a pragmatic policy of

confining both Aboriginal and Islander prisoners in ordinary gaols and penal establishments.

3 The derivative nature ofcolonial penal systems has been noticed by other historians. Peter Oliver, forexample, has acknowledged the difficulty in identifYing the particular influences on the development oftheOntario penal system: "For practical reasons, American influences were stronger than the British in latenineteenth century Canada, yet it is difficult to determine the extent to which either did much to shapeCanadian experience" (Oliver, Prisons and Punishments in Nineteenth-Century Ontario, p. 309).

Conclusion: Punishmcnt and Colonialism IZcconsiclered 383

There they were segregated from the mainstream inmate population and were subject to a

racially-based division of labour, in which they were required to perform the most undesirable

duties. Gaols were also established in Queensland's sugar manufacturing districts to provide a

more efficient form ofpunishment for Melanesian prisoners, and a practice of deportation was

pursued formore serious offenders.

Racial antipathy also provided the colonial authorities with a rationale for maintaining the

ritual ofpublic execution in certain cases. Capital punishment was a conspicuous, exemplary

form ofstate-sanctioned violence that fulfilled an important ideological function in the

process of internal pacification as the colonial state sought to establish its authority over both

indigenes and settlers. This was clearly demonstrated in the decision of the authorities to

resort to public display in the executions ofcertain Aboriginal and Islander offenders, even

after public execution had been abolished in the colony. The normal procedure for executing

capital offenders was modified to fulfil a dual purpose, in which the colonised were

unequivocally shown the penalty for their assaults on Europeans, and the colonisers were

reassured that the Aboriginal menace was being met with a stern response. These subtle

modifications in the use ofcapital punishment are evidence of the way in which frontier

conflict and racial antagonism influenced the development ofpenal forms in colonial society.

The principle ofexceptional treatment for indigenous offenders continued well into the

twentieth century. The idea ofan island penitentiary eventually found expression as a vital

component ofthe emerging system for the regulation ofthe Aboriginal population as a whole.

With an initial experiment on Fraser Island, and then later on Palm, the authorities put into

practice the technique of deporting criminal Aborigines to island reserves which resembled, in

many crucial respects, prisons. There they were subject to a unique form of indeterminate

sentence well before such punishment had even been contemplated for non-indigenous

criminals in Queensland.4 These punishment places became fundamental components of the

protectorate or reserve system, confining many convicted and time-expired Aboriginal

offenders. This range of deviations from usual practice in the case of indigenous offenders is

an obvious feature of colonial penality. It would appear unlikely that Queensland is the

exception here. Other colonial penal systems will have undergone similar processes of

4 Detention on islands was a mcasure that had hitherto been reserved for the non-criminal population ofindigent, infmn, diseased and alcoholic colonists.

Conclusion: Punishment and Colonialism Reconsidered 384

adjustment to accommodate the imperative ofpunishing indigenous peoples.5

Perhaps the most striking feature ofpenality in colonial and post-colonial Queensland was the

influence of economy on the transformation of the penal system. From the evidence presented

in this thesis it is clear that the driving force behind penal change in Queensland was not the

influence ofpenological theory or changes in the international penal environment; not the

impact of transforming sensibilities towards the treatment ofprisoners; not the influence of a

reform movement; not the conscious desire ofa ruling elite for a more efficient form of

control over the working classes; not the increased rationalisation of the colonial state

apparatus; not the desire for a more pervasive and efficient form of discipline; nor was it the

need to respond to changing labour market conditions. If there was an overarching penal

discourse for the period under analysis, it was to maintain a cost-efficient penal system that

sustained less-eligible conditions for prisoners and in which rudimentary methods for their

rehabilitation were also provided - economy, punishment and reform, in that order.

These three competing penal priorities co-existed in a state ofperpetual tension. The

possibilities for enhancing the reformatory potential of the penal system were mediated by

,issues ofexpense and a desire to maintain an exclusively punitive element of imprisonment.

The extent to which the penal regime could be made more punitive, its deterrent qualities

enhanoed, was determined by a widespread belief that imprisonment should incorporate a

rehabilitative component and a consideration of the costs that would be incurred in structural

renovations or the employment of extra staff. Finally, the idea that punishment could be cost­

effective was perpetually frustrated by the fact that it had to fulfil both punitive and

rehabilitative goals. The evidence would suggestthat in Queensland it was the priority of

economy that took precedence as the colonial authorities aspired toward their goal of a self­

supporting penal system.

The relationship between the three competing priorities of punishment is best demonstrated in

the history of St Helena Penal Establishment. From its establishment in the 1860s, 8t Helena

was the most important productive institution in Queensland's penal system, incorporating a

diverse range ofprison industries to employ its captive labour force. The ultimate goal for the

authorities was to create a self-supporting institution, and its physical structures and

administrative arrangements were organised accordingly. The desire for profit also motivated

5 See Finnane and McGuire, "The Uses of Punishment and Exile: Aborigines in Colonial Australia", for a

Conclusion: Punishment and Colonialism Reconsidered 385

the implementation ofsome ill-fated experiments in sugar and sisal hemp manufacturing. In

spite of repeated attempts to encourage the authorities to increase the punitive element in St

Helena's penal regime, the emphasis remained on productivity. Similarly, there was little

effort to enhance the rehabilitative elements of the prison regime at the expense of its

economic efficiency. An attempt at educational training, sporadic religious instruction and

the availability of reading material were the only techniques utilised in the reformation of

prisoners. Furthermore, a large number of inmates continued to be confined in association,

despite the clear emphasis on separation in the rhetoric ofprison administration in

Queensland and other jurisdictions. As the criticisms mounted and the decision-makers in the

penal realm became more aware of its redundancy, the authorities continued to embellish its

reformatory potential and support its retention. Its income generating capacity overshadowed

its deficiencies. Minor reforms were regularly initiated to prolong its existence. Only after

the productive capacity of St Helena rapidly diminished following World War One, did the

authorities contemplate scaling down its operations and embrace the concept of minimum

security prison farms.

The parsimonious approach of the Queensland authorities also had an impact on the

conditions of imprisonment in institutions other than St Helena. Poor quality accommodation

and amenities were frequently found in Queensland's penal institutions. This is no better

demonstrated than in the practice of constructing cells and wards to dimensions that fell short

of those recommended for cold climates. In the colonial period, most of Queensland's penal

institutions experienced some periods of overcrowding. Insufficient cell and ward space was

a constant impediment to the establishment ofan adequate system of classification. This was

repeatedly highlighted as one of the most enduring deficiencies of Queensland's penal system,

featuring in every official inquiry and in numerous annual reports. Illness and inmate

indiscipline were serious consequences ofthis overcrowding and inadequate classification.

The methods of instruction and rehabilitation available for the reformation of inmates also

suffered from inadequate resources. The only meaningful reformatory techniques

implemented in Queensland's penal institutions were the occasional visits of clergy,

participation in the standard work regime and the availability of reading material. The

benefits to be gained from these activities remains subject to debate.

This obsession with economy also had a profound impact on the way in which the colonial

comparison ofQueensland and Westem Australia.

Conclusion: Punishment and Colonialism Reconsidered 386

state devised strategies for the punishment of criminal youths. The desire for an inexpensive

solution led the authorities to solicit the involvement of the churches in providing institutional

treatment for both neglected and criminal youths. While the state maintained a reformatory

for boys, by the tum of the century it was left to the denominations to provide for neglected

boys an~ both criminal and neglected girls. This is not to imply that denominational

involvement in reformatory treatment is a feature ofpenality in all colonial societies. Rather

it suggests something of the capacity of the colonial state to seek alternatives to the usual

penal practices and embrace the involvement of non-government organisations in the

provision ofpenal-welfare services. But even before this policy became the norm, the

reformatory system suffered from the effects of insufficient funding and a consistently

disinterested government. For its entire history it was characterised by neglectful

administration, the indiscriminate use of licensing out, and the failure to develop a

rehabilitative programme beyond a daily work regime that also satisfied a remunerative

objective for each institution. None of these features would be unknown to the British

reformatory system, for example, but it is unlikely that their existence in combination ever

had as debilitating an effect on the development of reformatory treatment as they did in

colonial Queensland.

Yet in the case ofjuvenile delinquency there is also evidence ofa remarkable continuity with

British penality. The immoderate use of corporal punishment at the time of the larrikin panic

of the 1880s bears some striking resemblances to Britain's garotting panic of 1862. The harsh

treatment ofyoung offenders at the hands of the judiciary was the result of a combination of

two factors: the effective demonisation of larrikin offenders in the colonial press, and the

vivid memory of the garotting outrage and ticket of leave conflict that gripped Britain in the

early 1860s. The intractable problem ofjuvenile delinquency led the colonial authorities to

pursue similar remedies to those already tested in the mother country, appropriately modified

to suit local circumstances.

The punishment of women was another area in which the state's obsession with economy had

a profound impact. For almost the entire period under analysis, women prisoners were forced

to endure conditions of imprisonment that were inferior to the men. For the majority, it was

either the Valley or Toowoomba Gaols - both small, dilapidated structures, incapable of

accommodating large numbers - that received the majority of women sentenced to terms of

imprisonment. Only after the reduction in levels of incarceration at the tum of the century,

Conclusion: Punishment and Colonialism Reconsidered 387

and the new women's division was erected at Brisbane Prison, did the authorities manage to

implement an individualised system ofclassification for female prisoners. Once cell space

again became scarce after 1921, the authorities immediately relocated Brisbane Prison's

female prisoners to an adjacent wooden structure, to make way for St Helena's long-timers.

The subordination of the needs of female offenders to those ofthe men was an enduring

policy in the development of Queensland's penal system.

Another distinctive feature ofpenality in colonial Queensland was the development of its

penal culture. To some extent this was determined by the emphasis on economy, but there

were other contributing factors as well. Perhaps ofprimary importance, the absence of an

influential reform tradition was a striking feature ofpenality in colonial Queensland,

distinguishing it from most other Australasian jurisdictions. There was never an organised, or

even a loose grouping of reformers who together persistently lobbied the government to effect

reforms in the penal realm.6 This lack ofa visible and effectual reform tradition was largely

responsible for the muted public discourse on punishment in Queensland, ensuring that the

only impetus to reform the existing system would have to come from within. Penal reform

was ultimately subsumed within a more general programme ofadministrative reform in the

criminal justice sphere, spearheaded by Samuel Walker Griffith.7 It did not in itselfconstitute

a passionate issue for more than a handful of reformers.

Even when some kind of reform was the likely outcome of the crises of the mid-1880s, there

were few who came forward to offer comprehensive critiques of the penal system. It was

really only the sensation-hungry press and a few political spokesmen who were prepared to

keep the issue on the agenda. Indeed, it is an indication ofthe gravity ofthe situation

confronting Queensland's penal administrators in the mid-1880s that the board of inquiry was

ever commissioned at all, and that its recommendations were even addressed. The dramatic

population growth of the early-1880s and the resulting overcrowding in the penal system, not

to mention the enterprising activities ofthe inmates themselves, were the main motivations

for the inquiry. There was widespread acknowledgment that something needed to be done if

the penal system was to continue to service the needs ofa rapidly developing colony.

Nevertheless, the long delay in commencing its work and in implementing its

6 Possible evidence for this is Mark Finnane's discussion ofpenal reform in Australia, in which he does notinclude any evidence from Queensland (see Punishmentin Australian Society, pp. 147-59).

7 See Finnane, "Penality and Policy", pp. 84-97.

Conclusion: Punishmcnt and Colonialism Rcconsidered 388

recommendations, and the pragmatic and unambitious reforms that were the result, are further

evidence that an influential reform movement was sorely missed in colonial Queensland. The

dilatory and penurious response of government suggests that there was no external force able

to apply sufficient pressure on the state to reform its penal apparatus to any significant degree.

As demonstrated in the final chapter, it was only after certain economic conditions were met

that meaningful change would occur in the penal realm.

The absence of a reform tradition meant that there were few passionate advocates for the

welfare ofprisoners. When proponents did emerge, their small number precluded the

development ofa consistent position on the nature ofpenal reform required in Queensland.

Drawn mainly from the ranks of the clergy and the legislature, the only occasions in which

they constituted an organised group were when the Discharged Prisoners' Aid Society was

established in 1886, only to disappear several years later, and during the campaign to abolish

capital punishment. For the clergy, prison work was part of the established routine of

providing charitable assistance to the unfortunate in colonial society, but it was not a

particularly popular activity until the Reverend Powell began to campaign for a discharged

prisoners' home during World War One. The interest ofpoliticians in penal reform typically

resulted from their involvement in other pressing or contentious social issues. Vincent Lesina,

for example, was a tireless supporter of the labour movement, always conspicuously involved

in the struggle for workers' rights. His brand ofpenal reform reflected his political position on

the labour movement, and led to the development ofa contradictory approach. He was a

passionate opponent ofcapital punishment and occasional defender of the rights ofprisoners.

Yet his advocacy did not extend to Aboriginal and Islander offenders. In the case of

Melanesians, in particular, he was quick to seize upon any instances of lawlessness to mount a

broad critique of the labour trade in general, never failing to highlight what he regarded as the

inherent criminality of these imported "savages" as he did so. In a sizeable and well­

established reform tradition, his contradictory attitude toward penal reform would scarcely

have been noticeable. In a tradition with as few voices as colonial Queensland, his view

achieved a high degree ofprominence as one ofthe few to be expressed in parliament.

The distinctive fonnation of Queensland's penal culture was also characterised by certain

policy trends and structural developments. For example, the derivative nature ofpenality in

colonial Queensland has already been highlighted, but there is more that can be said about the

effect of this process of derivation on the development of penal culture in Queensland.

Conclusion: Punishment and Colonialism Reconsidered 389

Penality in Queensland was characterised by the ad hoc development ofpenal policy in

response to shifts in policy and practice in other jurisdictions. Policy in colonial Queensland

was rarely formulated on the front foot, but was developed in response to changes in the

international penal environment. As a result, innovation in penal policy and practice usually

occurred following the importation ofa fashionable idea from outside, rather than as the

outcome of an attempt to grapple with local problems and develop appropriate solutions.

Indeterminate sentencing, for example, was introduced to Queensland soon after it became a

feature ofother jurisdictions, yet even after it finally received legislative sanction, it would be

some time before it was utilised to any great extent.

International jurisdictions were not the only source of inspiration for Queensland's penal

administrators. The authorities also looked to their counterparts in the other Australasian

jurisdictions for innovations in penology that may have been suitable for implementation in

Queensland. The activities of Frederick Neitenstein, for example, were frequently a source of

inspiration for Queensland's penal administrators. His opinions were often cited as expert

testimony in annual and other reports and his advice was frequently sought on matters of

penological importance. Even the tree planting experiments in New Zealand had an influence

upon penality in Queensland, where the concept of agricultural labour remained an essential

component ofpenality. In many respects, the development ofpenal policy in colonial society

was a cooperative endeavour, involving the regular exchange of ideas and practices between

nearby jurisdictions.

This process ofpragmatically borrowing from other jurisdictions and adapting to suit local

circumstances led to what may be described as an inconsistency in penal innovation and the

uneven development ofpenal policy and practice. On the one hand, Queensland was capable

of taking the lead in transforming penal policy. It was, for example, the first Australian

jurisdiction to introduce probation and legislate to establish a parole board, and the first to

abolish capital punishment. These innovations were accompanied by some other progressive

changes in the administration ofcriminal justice, namely the provision of financial support for

the defence ofpoor prisoners, the introduction ofpart payment of fines, and the establishment

of a children's court and a court ofcriminal appeal. Yet it was also capable of lagging behind

other jurisdictions. This is noticed in its hesitance to implement imperial policy throughout

the colonial period, failure to institute a more individualised system ofconfinement following

the tum of the century, slowness in introducing habitual offender legislation and providing

Conclusion: Punishment and Colonialism Reconsidered 390

institutions for inebriates, and providing appropriate accommodation for the criminally insane.

The outcome of this inconsistency or unevenness in penal change was a relatively slow

transition to penal-welfare in comparison with international and some other Australasian

jurisdictions. It was not until World War Two that the particular characteristics of the new

penology were to emerge in combination in Queensland.

In summary then, the evidence from Queensland would suggest that the most important

distinguishing characteristics of colonial penality are fourfold. First, the pervasive effect of

economy on the development and maintenance ofpenal-welfare institutions. Second, the

derivative nature ofpenal forms in the colonial context, demonstrated in a willingness to

imitate penal policy and practice where possible, although with pragmatic adaptation often the

result. Third, the need to modifY penal policy and practice to accommodate indigenous

peoples, as evidenced in the creation of distinctive penal forms on the basis of race. Finally,

the distinctive development ofpenal culture in comparison with non-colonial jurisdictions. In

Queensland, this was characterised by the virtual absence of a reform tradition, the

importation ofpenal innovations from neighbouring jurisdictions as opposed to local

development, and the existence ofpatterns ofpenal change which differed from non-colonial

jurisdictions. It remains to be seen whether these features are also present in the histories of

punishment in other colonial settler states. Other studies of colonial penal systems are needed

to either confirm or revise such a conclusion.

The implications of these observations for the study ofpenality in contemporary Queensland

are somewhat more apparent. The worrying level ofAboriginal and Torres Strait Islander

over-representation in Queensland's correctional institutions is a clear legacy of the damaging

effects of colonialism on indigenous peoples. This thesis has shown that the influence of race

on the development of penality has a long history, being just as relevant a hundred years ago

as it is today. The present study also suggests some interesting continuities between past

practice and the contemporary shift toward privatisation. Like many colonial penal policies,

the concept of private prisons was derived from overseas and modified to suit local

circumstances.8 Privatisation was also speedily implemented in a jurisdiction in which the

8 A significant example was the 1996 decision ofthe government to resolve the problem of the statecompeting with the private sector for prison contracts by removing the service provider function from theQueensland Corrective Services Commission and transferring it to a specially created governmentcorporation, Queensland Corrections (see Moyle, Profiting From Punishment, pp. 329-30, and RichardHarding, "Private Prisons in Australia: The Second Phase", Trends and Issues, no. 84, 1998, AustralianInstitute of Criminology, pp. 2-3). The decision was reversed in 1999.

Conclusion: Punishment and Colonialism Reconsidered 391

penal system had been left for many years to atrophy, where historically the welfare lobby in

general has been weak9, and where innovation could be embraced amidst a general resistance

to modemisation. 1o Private prisons are perhaps the logical consequence of a parsimonious

state keen to divest itself, as much as possible, of the responsibility for developing and

maintaining penal-welfare strategies and institutions. As the final chapter has shown, the goal

ofmaking prisons pay for themselves is not a new one, but has preoccupied Queensland's

penal administrators since the 1860s.

9 See the historical discussion in Peter Walsh, "Welfare Policy", in Bron Stevens and John Wauna (eds), TheGoss Government: Promise and Performance ofLabor in Queensland, Macmillan, Melbourne, 1983, pp.215-19.

10 See Moyle's discussion ofthe political context in which prison privatisation was introduced to Queensland(Profiting From Punishment, pp. 7-14 and ch. 3).

Appendix 1 392

Appendix 1:

Senior Penal Administrators in Queensland (1857-1926)

BROWN, William AnthonySheriff,1857-1864

BLAKENEY, William TheophilusSheriff, Feb-Mar 1864

HALLORAN, Arthur Edward (1813-1890)Sheriff, 1864-1888Inspector of Prisons from 1Jan 1873

TOWNLEY, William (1836-1909)Superintendent ofSt Helena, 1882-1888Sheriff and Inspector of Prisons (later Comptroller-General of Prisons), 1888-1893

PENNEFATHER, Charles Edward de Fonblanque (1848-1922)Police Magistrate, Ingham, 1882-1888Superintendent of St Helena, 1888-1893Comptroller-General of Prisons, 1893-1919

PEIRSON, Arthur Thomas (1867-1933)Clerk of Gaols, 1886-1904Superintendent of Brisbane Gaol, 1904-1919Comptroller-General ofPrisons, 1919-26

Comptrollers-General from 1926

GALL, William, 1927-34WHITNEY, James Francis, 1935-48RUTHERFORD, William, 1948-57QUINN, Thomas Joseph, 1957KERR, Stewart, 1957-74WHITNEY, Allen, 1974-79

Principal Officers of Penal Institutions in Queensland (1864-1914):1

Brisbane Gaol/Prison

SNEYD, SamuelPrincipal Gaoler, 23.11.1859-

I This list includes the officers who were in charge ofeach institution throughout the specified period. It doesnot include the occasional title changes for each position held (for example, McDonald changed fromSuperintendent to Gaoler and back to Superintendent again).

BERNARD, Frederick R.Principal Gaoler, 24.11.1868-

JEKYLL, John RichmondPrincipal Gaoler, 1.1 0.1885-

LEWIS, Major Ralph FitzgibbonPrincipal Gaoler/Superintendent, 22.2.1888-

WILLIAMS, John VivianSuperintendent, 6.9.1901

PEIRSON, Arthur ThomasSuperintendent, 1.7.1904

Brisbane Prison (Female Division)

WILLIAMS, John VivianSuperintendent, 30.9.1903

BROWNE, SarahMatron, 30.9.1903

PEIRSON, Arthur ThomasSuperintendent, 1.7.1904

NIXON, S.A.Matron, 8.10.1908

Mackay Police Gaol/Gaol/Prison

SCHNEIDER, FrankGaoler, 23.7.1883-

RYAN, JamesGaoler/Superintendent, 16.12.1890-

DOWNIE, Duncan FraserGaoler/Superintendent, 25.9.1891

WOODHOUSE, JosephSuperintendent, 20.8.1893

JOHNSTON, DavidSuperintendent, 12.10.1898

BROOKS, Charles HenrySuperintendent, 8.4.1903

Appendix 1 393

Rockhampton Gaol/Prison

SHEEHY, EdwardGaoler/Superintendent, 4.12.1867-

HAMILTON, JamesSuperintendent, 1.11.1894

MACDONALD, lA.Superintendent, 14.10.1909

Roma Gaol/Prison/Police Gaol

DONNELLY, PeterGaoler, 14.12.1872-

SMYTH, ThomasGaoler, 1.1 0.1888-

RYAN, JamesGaoler, 1.3.1889

SCHNEIDER, Frank OswaldGaoler/Superintendent, 16.12.1890

Police gaol from 16.10.1903

BOWEN, WilliamSuperintendent, 16.10.1903

St Helena Penal Establishment

McDONALD, JohnSuperintendent, 20.5.1867-

TOWNLEY, WilliamSuperintendent, 20.4.1882-

PENNEFATHER, Charles Edward de FonblanqueSuperintendent, 11.7.1888-

RYAN, JamesSuperintendent, 1.11.1894

Thursday Island Police Gaol/Prison

SIMPSON, James George

Appendix 1 394

Gaoler/Superintendent, 21.7.1877

DOWNIE, Duncan FrazerSuperintendent, 30.9.1893

CARTER, JohnSuperintendent, 13.11.1894

McKEE, David DouglasSuperintendent, 23.12.1903

Toowoomba Gaol/Prison

MURPHY, WilliamGaoler, 1.6.1864-

BLANEY, HenryGaoler/Superintendent, 11.2.1871-

BLANEY, CatherineMatron, 1.3.1871

BLANEY, FlorenceMatron,

McKEE, David DouglasSuperintendent, 1.10.1900Proclaimed for the detention of female prisoners only, 14.9.1898Closed on 17.10.1903 and prisoners moved to Brisbane

Townsville Gaol/Prison

SMYTH, ThomasGaoler,1.l0.1878-

DONNELLY, PeterGaoler/Superintendent, 1888-

RYAN, JamesSuperintendent, 25.9.1891-

HALLIGAN, PatrickSuperintendent, 6.9.1893

Stewart's Creek Penal Establishment, Townsville

RYAN, JamesSuperintendent, 6.4.1893

Appendix I 395

DOWNIE, Duncan FrazerSuperintendent, 1.11.1894

Fortitude Valley Gaol/Police Gaol

TYRRELL, MargaretMatron, 1.1.1878-

BROWN, MariaMatron, 1.1.1879-

BROWN, MargaretMatron, 1883

SLATTERY, KateMatron, 1.7.1884-

SLATTERY, ElizabethMatron, 1894

BROWNE, SarahMatron, 3.7.1894Closed 17.10.1903 and prisoners transferred to Brisbane Prison

Appendix 1 396

Appendix 2 397

Appendix 2:

Principal Gaols, Prisons, Penal Establishments and Reformatory andIndustrial Schools in Queensland 1847-1940

1847-60

1864-7

1860-83

1863-1903

1864-

1864-1903

1866-1934

1871-1881

1872-

1877-

1878-94

1881-1899

1881-1903

1883-

1884-

1883-

1881-

1888-

1893-

1897-

1897-

Brisbane Gaol in Queen Street

Hulk Proserpine utilised for reception ofprisoners

Brisbane Gaol, Petrie Terrace

VaHey Gaol (proclaimed a gaol on 9 September)

Rockhampton Gaol (new gaol gradually erected between 1877 and 1884)

Toowoomba Gaol erected (became principal gaol for women in 1871 and in1898 was declared a prison for the detention of female prisoners only)

St Helena Penal Establishment

Reformatory School for Boys, Hulk Proserpine

Roma Gaol opened in December

Thursday Island Police Gaol (proclaimed a Prison in 1890)

Townsville Gaol opened on 1 October (proclaimed a Prison in 1890 and wastemporarily redesignated a Police Gaol in 1893)

Reformatory School for Boys, Lytton

Toowoomba Industrial and Reformatory School for Girls

Brisbane Gaol, (Boggo Road) South Brisbane (later EM Prison, Brisbane)

Blackall Police Gaol (proclaimed Prison in 1890, Police Gaol in 1902)

Mackay Police Gaol (a new Gaol was erected in 1888, but was abandoned in1893 and the prisoners were returned to the 0 ld premises)

Cooktown Police Gaol (proclaimed Prison in 1890)

Normanton Gaol (proclaimed Prison in 1890)

Stewarts Creek Penal Establishment, Townsville (later EM Prison,Townsville)

Cairns Prison

Salvation Army Industrial School, Riverview (Girls) [moved to Yeronga in

1898-

1899-1900

1900-

1903-

1903-

1903-

1904-

1934-

1940-

Appendix 2 398

1898]

Salvation Army Industrial School, Riverview (Boys) [moved to Toowoombain 1903]

Diamantina Reformatory School for Boys, South Brisbane

Westbrook Reformatory School for Boys

HM Prison Brisbane (Female Division), Boggo Road

Industrial School for Girls, Nudgee

Industrial School for Girls, Clayfield

Industrial School for Girls, Wooloowin

Palen Creek State (Prison) Farm established in May

Numinbah State (Prison) Farm established on 19 January

Appendix 3 399

Appendix 3:

Number of Prisoners Released under the Offenders Probation Actbetween 1887 and September 1893:

Offence No. No. Sentence

M F

Larceny 271 28 From 1month to 5 years

Attempted larceny 5 From 6 weeks to 12 months

Embezzlement 55 From 3 months to 3 years

Assault 36 1 From 1month to 12 months

Horse-stealing 36 From 1to 4 years

False pretences 63 4 From 3 months to 3 years

Cattle-stealing 10 From 13 months to 4 years

Unlawfully wounding 12 From 6 to 18 months

Vagrancy 4 1 From 3 to 6 months

Illegally using a horse 12 From 3 to 14 months

Arson 5 2 From 2 months to 3 years

Wounding with intent 2 From 12 to 18 months

Forgery 16 From 6 months to 4 years

Forgery and embezzlement 1 6 months

Larceny and embezzlement 1 2 years

Murder 1 10 years penal servitude

Attempted rape 2 10 years penal servitude

Assault with intent to steal 3 From 2 to 3 years

Manslaughter 3 From 6 months to 7 years

Forgery and uttering 13 I From 1month to 7 years

Larceny as a bailee From 6 months to 2 years

Stealing from the person 8 3 From 3 to 12 months

Breach of Licensing Act 1 2 From 2 to 3 months

Maliciously killing a filly 1 12 months

Bigamy 2 12 months

Breaking and entering and stealing 3 From 12 months to 2 years

Loitering with intent 3 From 4 months to 6 months

Gambling 10 4 months

Appendix 3 400

Perjury 2 From 12 months to 4 years

Burglary I 2 years

Indecent exposure 2 6 months

Indecent assault 6 From 6 to 2 years

Breach of the Insolvency Act 3 From 12 to 20 months

Breach of the Registration Act I 3 months

Illegally pawning I 6 months

Keeping a disorderly house From 6 to 12 months

Abandoning a child I 2 years

Uttering a counterfeit coin I 12 months

Robbery I 2 years

Rioting 2 3 years

False declaration I 6 months

Breach of the Immigration Act 3 From 3 to 4 months

()bscenelanguage 1 6 months

Concealment of birth 6 From 6 months to 2 years

Receiving stolen property 9 I From 3 months to 2 years

Killing cattle with intent to steal 3 From 6 to 18 months

Intent to commit a felony 4 From I to 6 months

Wilful destruction of property 5 From 3 to 12 months

Illegally on premises 8 From 11 weeks to 6 months

Total 632 51

Source: W. Townley, Sheriff, to Secretary, Crown Law ()f'fices, 13 September 1893, QSA PRIlA47 [1335].

Appendix 4 401

Appendix 4:

A comparison of dietary scales in use in the Queensland penal systembefore and after the introduction of the 1892 rules and regulationsrelating to prisons: 1

1. Daily rations to be issued to prisoners serving sentences not exceeding six months:

1869-189i

12 oz bread8 oz maize meal (made into hominy)

34 oz meat8 oz vegetables12 oz salt12 oz soapY4 oz rice

1892-

12 oz bread8 oz maize meal4 oz meat8 oz vegetables12 oz salt12 oz soapY4 oz rice or barley

2. Daily rations to be issued to prisoners serving sentences not exceeding twelve months:

1869-1892

12 oz bread8 oz maize meal6 oz meat8 oz vegetables12 oz salt12 oz soapY4 oz rice

1892-

12 oz bread (females 10)8 oz maize meal8 oz meat12 oz vegetables (females 8)12 oz salt12 oz soapY4 oz rice or barley

I The scales for the years 1869-1892 were originally included as a late addition to the 1868 Queenslandprison regulations (see Sheriff to Col Sec, 16 December 1868, QSA COL/AIlS [4080]; and QGG, vol. 10,no. 1,2 January 1869, p. 1). They were again cited as the scales in force at the time of the 1887 Board ofInquiry. Prior to 1869 there were only two scales: one for prisoners actually working at hard labour, andanother for all other prisoners. The fIrst consisted of 16 oz bread, 12 oz maize meal, 8 oz meat, 8 ozvegetables, Y:z oz salt, and Y:z oz soap; the second, 12 oz bread, 12 oz maize meal, 4 oz meat, 8 oz vegetables,Y:z oz salt, and Y:z oz soap (see "Rules and Regulations for the Management of Her Majesty's Gaol inQueensland", 1April 1864, QSA COL/A53 [1148]). The 1892 dietary scale was included in "Rules andRegulations Relating to Prisons", QGG, vol. 56, no. 33, 3 June 1892, pp. 296-7.

2 For sentences not exceeding one month, and for the fIrst month ofa six month sentence, inmates wereentitled to their meat and rice rations on Sundays and Wednesdays only. The rice ration was increased to halfan ounce.

3 It should be noted that the nominal meat ration could be misleading if bones were included in themeasurements. This was the situation at Brisbane Gaol before the 1887 inquiry, with blame being attributedto the supplier rather than the authorities (EI, p. 697).

Appendix 4 402

3. Daily rations to be issued to prisoners at hard labour serving sentences under twelvemonths:

1869-1892

12 oz bread8 oz maize meal60zmeat8 oz vegetablesY2 oz saltY2 oz soapY4 oz riceY2 oz tea (for good conduct)2 oz sugar (for good conduct)2 oz tobacco (weekly for good conduct)

1892-

16 oz bread (females 12)8 oz maize meal12 oz meat12 oz vegetablesY2 oz saltY2 oz soapY4 oz rice or barley

4. Daily rations to be issued to prisoners when employed at hard labour servingsentences exceeding twelve months:

1869-1892

16 oz bread8 oz maize meal11 oz meat8 oz vegetablesY2 oz saltY2 oz soapY4 oz rice1oz sugarY2 oz tea (for good conduct)2 oz sugar (for good conduct)2 oz tobacco (weekly for good conduct)

1892-

20 oz bread (females 16)6 oz maize meal16 oz meat12 oz vegetablesY2 oz saltY2 oz soapY4 oz rice or barley1 oz sugar (ration)

5. Basic daily diet for prisoners on the sick list:4

1869-1892

8 oz bread2 oz rice2 oz arrowroot5 gills milkY2 oz tea3 oz sugar2 oz oatmeal (made into gruel)Y2 oz soap

1892-

8 oz bread2 oz rice2 oz arrowroot(according to order) milkY2 oz tea2 oz sugar2ozoatmealY2 oz soapY2 oz salt

4 The 1869 scales also included provision for a spoon diet of 8 oz bread, 1gill milk, Yz oz tea, 2 oz sugar, 1oz arrowroot, 2 oz oatmeal (made into gruel), and Yz oz soap.

Appendix 4 403

6. Authorised to be issued daily to prisoners undergoing solitary confinement:

1869-1892

24 oz bread

1892-

24 oz breadY:z oz soap

Appendix 5 404

Appendix 5:

Systems of Prisoner Classification in Queensland 1864-1892

1864:

40. In all cases where the building will allow of separate classification, the prisoners are to bedivided into the following classes:-

(1) Prisoners awaiting trial and committed for re-examination.(2) Prisoners under sentence of hard labour.(3) Prisoners under sentence of imprisonment for misdemeanour or default of fine.(4) Debtors.(5) Lunatics.(6) Juveniles.

Source: "Rules and Regulations for the Management of Her Majesty's Gaol in Queensland", 1April 1864,pp. 6-7, QSA COL/A53 [1148].

1868:

CLASSIFICATION

1. Prisoners shall be classified as below stated; and the several classes shall, so far as theconstruction of the building and the necessities of the works and trades will admit, be keptapart. But any prisoner may, for special reasons, to be reported in each case to the Sheriff, beassociated with a class other than his own.

1st. Prisoners convicted offelony under sentences to the roads and public works, or toimprisonment with hard labour. Provided that prisoners sentenced to imprisonmentonly shall be eligible, on reasons shown to the satisfaction ofthe Sheriff, foradmission into the second class.2nd. Prisoners convicted of misdemeanour - sentenced to imprisonment only - andthose committed for want of sureties, nonpayment of fines or wages, and on summaryorders and convictions.3rd. Prisoners awaiting trial, or under examination.4th. Lunatics, comprising persons supposed to be of unsound mind.5th. Debtors, comprising persons confined for contempt upon civil process.

2. Prisoners of the 1st Class shall consist of three divisions - A, B, and C.Each prisoner shall serve one-twelfth of the period of his sentence, commencing uponhis conviction, in the A Division, provided that such service shall not exceed twelvemonths. Thence he shall, unless he be further detained by reason of misconduct, bepromoted to the B Division, wherin he shall serve one half of the remaining period ofhis term ofsentence; and thence (unless in like manner, retarded for misconduct) tothe C Division, for the remaining period of his sentence.

[Prisoners in A Division were to be employed at the hardest labour available - productive orpenal; those in B Division were to work in association or at hard labour; and those in CDivision were to be provided with privileges and indulgences as incentives to work]

Appendix 5 405

Source: "Queensland Prison Regulations", QGG, vol. 9, no. 74, 29 July 1868, pp. 856-8.

1892:

Classification ofprisoners

136. In all cases where practicable the prisoners shall be divided into the following classes,and the several classes, so far as the construction ofthe prison and the necessities of the worksand trades will admit, shall be kept apart; but any prisoner may for special reasons, to bereported in each case to the comptroller-general, be associated with another class than hisown:-

1st Class.- Prisoners under sentence of imprisonment with hard labour or penalservitude on first conviction;2nd Class.- Prisoners under a sentence of imprisonment with hard labour or penalservitude on a second or subsequent conviction;3rd Class.- Prisoners under sentence of imprisonment only, and who have notpreviously been convicted;4th Class.- Prisoners under sentence of imprisonment only who have been previouslybeen convicted;5th Class.- Prisoners awaiting trial or under examination who have not beenpreviously convicted;6th Class.- Prisoners awaiting trial or under examination who have been previouslyconvicted;7th Class.- Debtors and persons imprisoned for contempt ofcourt, or for failing togive security for the peace or for good behaviour;8th Class.- Lunatics.

[Separate treatment was required in the following cases:1st Class - for the first three months of the sentence2nd Class - for the first six months ofthe sentence4th Class - for the first month ofthe sentence]

Source: "Rules and Regulations Relating to Prisons", QGG, vol. 56, no. 33, 3 June 1892, pp. 295-6.

Appendix 6 406

Appendix 6:

List of Offenders Executed in Queensland, 1850-1913

Pre-Separation Executions in Queensland between 1850 and 1859:

Jacob Wagner (English)Patrick Fitzgerald (Irish)Angee (Chinese)Davy (Aboriginal)Dundalli (Aboriginal)Teagle (Irish)Dick (Aboriginal)Chamery (Aboriginal) .

08 Jul185008 Jul185006 Jan 185222 Aug 185405 Jan 185528Jul185704 Aug 185904 Aug 1859

murdermurdermurdermurdermurdermurderraperape

Executions in Queensland between 1859 and 1913:

T. Woods (English)George (Aboriginal)Tommy (Chinese)M. McGuinness (Irish)A. Ritchie (English)Jacky (Aboriginal)R. Momburger (German)TJ. Griffin (Irish)Billy (Aboriginal)Jacob (Aboriginal)G.C.F. Palmer (NSW)1. Williams (English)A. Archibald (Scottish)

Gee Lee (Chinese)1. Whitten (Aboriginal)W. Prendergast (Irish)W. Brown (German)D. Ross (Scottish)George (Aboriginal)Dugald (Aboriginal)P. Collins (Irish)1. Garbett (NSW)Johnny alias Alick (Islander)1. Clayton (Aboriginal)1. Wenzell (German)Tommy (Islander)George (Islander)1. Cunningham (Scottish)Sam Ah Poo (Chinese)Johnny alias Eroora (Islander)1. Mutter (Gennan)1. Wells (NSW)

07 Dec 186005 Dec 186102 Apr 186208 Apr 186301 Aug 186403 Nov 186513 Dec 186501 Jun 186807 Dec 186817 May 186924 Nov 186924 Nov 186922 Dec 1869

07 Mar 187007 Mar 187028 Mar 187029 Aug 187021 Nov 187015 May 187128 May 187229 May 187210 Mar 187429 Dec 187414 Apr 187529 Jun 187618 May 187718 May 187714 Jan 187819 Aug 187823 Dec 187809 Jun 187922 Mar 1880

murderrapemurdermurdermurdermurdermurdermurderraperapemurdermurderAccessory before thefact of murdermurderrapemurderrobbery under armsmurderraperapemurdermurderraperapemurderraperapemurdermurdermurdermurderrobbery under armswith wilful murder

L.1. Ellensdale (NSW)Jimmy Ah Sue (Chinese)M. el Pedro Gomes (Philippino)1. Campbell (Aboriginal)Ah Que (Chinese)G. Byrne (Qld)Towolar (Islander)1. Gardiner (Scottish)Jango (Aboriginal)George (Aboriginal)W.E. Gordon (English)Tum Tio (Chinese)Wong Tong (Chinese)C. Pickford (English)1. Harrison (English)E. Thompson (Irish)Sedin (Javanese)E. Duhamel (French)M. Barry (Irish)Donald (Aboriginal)F.C. Horrocks (Qld)C. Gleeson (Eurasian)L.W. Moncado (Chile)G.T. Blantern (English)Abbe (Japanese)Narasemai (Islander)Miore (Islander)Sayer (Islander)Jacky (Aboriginal)F. Tinula (Philippino)W. Broom (Aboriginal)C.Beckman(German)Wandie (Islander)1. Rheuben (portugese)Orifough (Islander)DA. Brown (USA)P. Kenniff(NSW)Sow Too Low (Islander)Charley alias Gosano (Islander)1. Warten (English)Johannes (Celanese)Twadyea (Islander)Look Low (Chinese)A. MilIewski (German)Bismark (Aboriginal)H. Ross (English)A.1. Bradshaw (Qld)G.D. Silva (Eurasian, Qld)C. Deen (Ceylanese)E. Austin (Victoria)

31 May 188031 May 188021 Jun188016 Aug 188012 Dec 188122 May 188205 Jun 188215 Oct 188315 Oct 188315 Oct 188326 Oct 188505 Apr 188621 Jun 188630 May 188713 Jun 188713 Jun 188712 Nov 188812 Nov 188802 Jun 189025 Apr 189226 Sep 189224 Oct 189224 Oct 189223 Oct 189328 May 189420 May 189520 May 189522 Jul189504 Nov 189504 Nov 189511 Jun 190013 May 190127 May 190130 Sep 190103 Dec 190109 Dec 190112 Jan 190322 Jun 190317 Apr 190517 Jul190514 May 190614 May 190631 Dec 190616 Dec 190719 Apr 190907 Jun 190913 Jun 191010Jun 191205 May 191322 Sep 1913

murdermurdermurderrapemurderrapemurdermurdermurderrapemurdermurdermurdermurdermurdermurdermurdermurdermurderrapemurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurdermurder

Appendix 6 407

Bibliography 408

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Legislation

1840

1851

1852

1852

1853

18551859

18651865

18681868

1880

18841886

1886

1890

1891

189418961896

1897-1901

1899

An Actfor the Regulation ofGaols, Prisons and Houses ofCorrection in theColony ofNew South Wales and its Dependencies andfor otherpurposesrelating theretoAn Actfor the more Effectual Prevention ofVagrancy andfor the PunishmentofIdle and Disorderly Persons, Rogues and Vagabonds and IncorrigibleRogues in the Colony ofNew South WalesAn Act to Authorise Lock-up Houses or Watch-houses to be used as places ofImprisonment under Summary Sentences for Short PeriodsAn Act to make it Compulsory on Persons under Committal to Prison toProceed thither on Foot when requiredAn Act to Regulate the Removal ofPrisoners under Sentence to the Placesappointedfor the Service ofsuch SentencesAn Act to regulate the Execution ofCriminalsOn 10 December the Moreton Bay settlement separated from New SouthWales to become the new colony of Queensland. The laws ofNSW wereimmediately adopted by the new colony.An Actfor further improving the administration ofCriminal JusticeAn Act to providefor the establishment ofIndustrial and Reformatory Schools(Amended in 1906)An Actfor the Prevention ofContagious DiseasesAn Act to Regulate and Control the Introduction and Treatment ofPolynesianLabourersAn Act to make provision for Regulating and Controlling the Introduction andTreatment ofLabourers from the Pacific Islands (Amendment in 1884, 1885,1886)An Act to Consolidate and Amend the Law relating to the InsaneAn Act to Consolidate and Amend the Laws relating to Justices ofthe Peaceand their Powers and Authorities (Amended in 1909)An Act to Amend the Criminal Law so far as regards the Punishment ofPersons Convicted ofFirst Offences (Offenders Probation Act)An Act to Consolidate and Amend the Law relating to Gaols, Prisons, HousesofCorrection, and Penal Establishments (Prisons Act)An Act to make better Provision for the Protection ofWomen and Girls, andfor otherpurposesAn Actfor the Better Preservation ofthe Peace in Disturbed DistrictsAn Act to Provide for the Protection ofChildrenAn Act to Provide for the Establishment ofInstitutions and Retreats for theReception and Protection ofInebriatesThe Aboriginals Protection and Restriction ofthe Sale ofOpium Act(Amended in 1901)An Act to Establish a Code ofCriminal Law (Errors corrected in 1900, 1913,1914 [see below], 1915)

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detention and control ofhabitual criminals)1922 The Criminal Code Amendment Act of1922 (abolishing capital punishment)1937 The Prisoners' Parole Act1938 Mental Hygiene Act1938 Backward Persons Act1939 The Aboriginals Preservation and Protection Act1945 The Criminal Law Amendment Act of1945 (making provision for the

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(Abbreviations in parentheses indicate the repository in which the rarer texts are held)

Anon., "Remunerative Prison Labour", Once a Week, vol. 12,27 May 1865, pp. 639-41.

Arnold, R.A. "Prison Labour", Fraser's Magazine, vol. 78, December 1868, pp. 769-76.

Berry, RJ.A. and Buchner, L.W.G. "The Correlation of Size of Head and Intelligence asEstimated from the Cubic Capacity ofBrain of355 Melbourne Criminals", Proceedings oftheRoyal Society ofVictoria, vol. 25, pt 2, 1913, pp. 229-53.

Bostock, J. and Nye, LJ. Whither Away?: A Study ofRace Psychology and the FactorsLeading to Australia's National Decline, Angus and Robertson, Sydney, 1936 (FML).

Bowring, J. "On the Influence ofProfitable Prison Labour upon the Refonnation ofCriminals", Theological Review, vol. 5, 1868, pp. 415-40.

Boyd, AJ. The Sisal Fibre Industry in Queensland with Notes on Mauritius Hemp, Murva,and the Mexican Zapupe Fibre, Department ofAgriculture and Stock, Government Printer,Brisbane, 1910 (JOL).

Browne, R.S. A Journalist's Memories, Read Press, Brisbane, 1927.

Bundey, W.H. "The Punishment of Criminals", Proceedings ofthe Australasian Associationfor the Advancement ofScience, vol. 5, 1893, pp. 539-56.

Campbell, W.S. "Agricultural Work in Prisons", World's Work, June, 1912, pp. 92-7.

Cleland, W.L. A Comparative Study ofthe Chronic Insane, the Habitual Offender, and theEndemic Unemployed, With a View to Treatment, Webb & Son, Adelaide, 1897 (ML).

Davitt, M. "Criminal and Prison Reform", Nineteenth Century, vol. 36, 1894, pp. 875-89.

Dickens, C. "The Noble Savage", Household Words, vol. 7, no. 168, 11 June 1853, pp. 337-9.

Bibliography 419

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Price, D. "Should Prisons be Abolished?", Forerunner, no. 7, 1916, pp. 30-2 (FML).

Roth, W.E. "Notes on Government, Morals and Crime", North Queensland Ethnography:Bulletin No.8, in QPP, vol. 2, 1906, pp. 945-56.

Russell, H.S. The Genesis ofQueensland, Turner and Henderson, Sydney, 1888.

Sellers, E. "A Self-Supporting Penal Labour Colony", Nineteenth Century and After, vol. 67,1910, pp. 108-20.

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