Posts Tagged ‘mabo’

A WORM-HOLE: RICHARD ATKIN’S DIARY & THE FIRST BLACK HOLE

Wednesday, February 21st, 2018

‘You are also with the consent of the natives to take possession of convenient situations in the country in the name of the King of Great  Britain, or if you find the country uninhabited take possession for His Majesty by setting up proper marks and inscriptions as first discoverers and possessors’. British Admiralty Instructions to Lieutenant James Cook RN, 1768. 

1770 – August, Possession Island: In 1770 although Lieutenant James Cook RN wrote ‘the natives of the country [New Holland] live in Tranquilly which is not disturb’d by the inequality of condition’ in the name of His Majesty King George III of England ‘without consent’ of its Peoples, he marked a tree ran up a flag and named their territory New Wales. See: Captain Cook, Charles Green, John Harrison – Three Yorkshirmen Walked Into A Bar – Nevil Maskelyne

‘Military power was the most decisive fact about the early settlements; it was the frame within which everything else happened’. R. Connell and T.H. Irving, Class Structure in Australian History, Documents, Narrative and Argument, 1980.

1788 – 28 January, Sydney Cove: ‘At 6 am the disembarkation began’ a British army commanded by Captain Arthur Phillip RN, two hundred and forty-five (245) marines, two hundred (200) Royal Naval personnel, twenty (20) officials, five hundred and seventy (570) male criminals – ‘rationed as troops serving in the West Indies’, thirty-one (31) marine wives and twenty-three (23) marine  children disembarked from the ‘First Fleet’ at Warrane now Sydney Cove.

A further four hundred and forty (440) merchant-seamen made up the fleet’s complement of 1500 souls.

1788 – 6 February: ‘The day the convict women [one hundred and eighty-nine [189 – 22 free children] disembarked they landed by rowing boas between 6am and 6 pm’. John Moore, The First Fleet Marines 1786-1792, Queensland University Press, 1986

See: Only Men ? Aside from Seagulls How Many White Birds Were On The Ground At Sydney Cove On 26 January 1788 – None

1788 – 7 February, Port Jackson: Captain-General, now Governor Arthur Phillip RN, raised the Union Jack . ‘Using a form of words’ he proclaimed possession by ‘effective occupation’ – conquest – of the island continent of New Holland, now Australia, for he British Empire.

The winner-takes-all mindset of Britain’s ‘original aggression’ – laid down in 1788 – was set in stone during two (2) critical periods of absolute military rule between 1792-1795 and 1808-1810.

1790 – June, Sydney: One hundred and fifteen (115) officers and infantrymen, first contingent of the New South Wales Corps raised specifically to replace the ‘troubled’ Sydney marine garrison, arrived with a second fleet  in June 1790 but without Major Francis Grose their commanding officer. See: ‘Britain’s Grim Armada’ – The Dead and the Living Dead

Grose remained in England and recruited to meet establishment requirements. The power vacuum was filled by Lieutenant John Macarthur, an ambitious, intelligent but unscrupulous junior officer.

At Macarthur’s urging officers pooled their cash morphed into powerful trading cartels and operated as both wholesale and retail merchants holding the infant colony in an economic strangle-hold. See: Machiavellian Macarthur

1792 – February, Sydney: Major Grose arrived at the beginning of February 1792 aboard Pitt a convict transport. One (1) of eleven (11) vessels contracted to a firm of slave-traders Camden, Calvert and King this third fleet brought one thousand eight hundred (1800) mostly male convicts and two hundred (200) additional troops. See: G is for Gender

Among a handful of free settlers was Richard Atkins. Atkins, the dissolute son of baronet Sir William Bower, kept a diary written; ‘in that uninhibited  fashion to which Georgian diarists were prone’. See: Boswell Goes Into Bat

In so novel and primitive a penal settlement Atkin’s polished upbringing and influential family connextions at once marked him as a privileged member of society, particularly as the colonists did not know the real reason for his coming. Journal, Royal Australian Historical Society, Vol. 52. Part 4, 1966

Atkins ‘made much of the fame of his [high profile] brothers’. In a colony almost entirely devoid of educated men, those in authority  failed to see Richard Atkins for what he was, a plausible con-man. Atkins was awarded positions far in excess of his abilities.

Governor Phillip accordingly appointed this virtual outlaw as a Justice of the Peace and sent him to Parramatta to augment the summary legal administration there’. RAHSoc. Journal. op.cit.

What of Richard Atkins the man? It seems, now as then, it is hard to find a good word.

Atkins; Addicted to liquor, immorality and insolvency he led a thoroughly dissolute life….The colony’s principal legal officer for years…when he was sober he was impressive enough to delude creditors and governor alike; but he was ignorant and merciless, an inveterate debauchee’. Australian Dictionary of Biography

Yet Atkin’s journal is a tardis; a wormhole into Britain’s toxic military occupation of Australia.

1838 – December, London: ‘You cannot overrate the solicitude of H.M. Government on the subject of the Aborigines of New Holland. It is impossible to contemplate the condition or the prospects of that unfortunate race without the deepest commiseration. Still it is impossible that the government should forget that the original aggression was ours’. Lord John Russell to Sir George Gipps, Despatch, 21 December 1838, Series 1, Vol. XX.

THE BACK STORY

1792 – 12 December: Governor Arthur Phillip RN returned to England after five (5) years of extremely stressful service as Britain’s first Governor of Australia (1788-1792). See: Phillip’s Algorithm

‘For the length of the interregnum [December 1792 – September 1795] the British government was greatly at fault. John Hunter, Australian Dictionary of Biography, J.J. Auchmuty

The Home Office failed to appoint an immediate successor so governance of the colony devolved to the military – the corrupt New South Wales ‘Rum’ Corps.     

‘No sooner had Governor Phillip left ye colony than I was convinced that the plan or measures of government were about to undergo an intire [sic] change’. [Atkins]

1792 – 15 December: The civil magistrates, within two days, received an order that their duty would in future be dispensed with, and from that time until your Excellency’s [Hunter’s] arrival [September 1795]…everything was conducted in a military manner’. Captain George Johnston to Governor John Hunter, cited William Foster, Journal Royal Australian Historical Society, Vol. 51, Part 3, 1965.

Major Grose, the Corps’ Commander, described as ‘unassertive, affable and easy-going’, was content to allow his greedy officers have their heads particularly; ‘the energetic Macarthur [who] became the real ruler of New South Wales’. op.cit.

The Atkin’s diary gives an insightful account of the British invaders and their guns, greed and grog- the tipping points of military rule – that changed forever ‘prospects [for] the Aborigines of New Holland’. 

‘Major Grose…has done more harm to this colony than it would be in the power of any govt. to do for many years…The more I consider the govt. of —  — the more it appears hostile not only to the British constitution but to ends for which all good government was instituted’. [Atkins – December 1794]

Major Grose, veteran of the American War, governed Australia from December 1792 until December 1794 when he departed for London. Captain William Paterson, Grose’s second-in-command, governed from December 1794 to September 1795.

‘We now have a commanding officer (Captain Wm. Patterson) for our Chief. I think it will not be approved of’. [Atkins – December 1794]

1795 – 21 March 1795: Captain Paterson having assumed command wrote to Home Secretary Dundas in London.

‘Having reason to expect the arrival of governor Hunter daily…I have made no alteration in the mode of carrying on the service which I found adopted at the Lieut.Governor’s [Grose] departure’. Captain Paterson, Administrator to Right Hon. Henry Dundas, 21 March 1795.

1795 – March, Sydney Cove: Brittania, a vessel chartered by officers of the New South Wales Corps on the say-so of Macarthur, a canny teetotaller sober among a sea of drunks, arrived at Sydney in March 1795 with 25,000 gallons of ‘firey Indian rum’.

‘We may expect Hunter in about 6 weeks….It is much lamented that the govr. [Hunter] does not arrive for every day adds to the debauchery and every other vice….The new settlement on the Hawkesbury is one continual scene of drunkeness.

It would be impossible to describe the scenes of villainy and infamy that passes at the Hawkesbury…a bottle of liquor for a bushell of corn and no questions asked is the common price’… since then drunkeness and robberys to a very allarming degree have taken place’. [Atkins – March 1795]

By 1795 over four hundred (400) ex-convicts, supported by the labour of serving prisoners, were farming ‘thirty miles along the banks on both sides of the Deerubin [Hawkesbury] river’. 

‘For the first twenty years, settlement in New South Wales was confined largely to the Cumberland Plain about Sydney….The Europeans explained  such [Aboriginal] resistance by referring to the Aborigines’ ‘Spirit of Animosity and Hostility’. Dr Peter Stanley, The Remote Garrison, The British Army in Australia 1788-1870, Kangaroo Press, 1986

Local Dharug Aborigines, denied access to watering places, hunting grounds and winter yam fields were placed under extreme pressure. They mounted hit and run raids; ‘plundering the corn’ to feed their hungry families.

‘As if the invasion of their land would call for any other response but armed resistance’. Stanley. op.cit.

In early June 1795 Captain Paterson, like Grose also a wounded veteran of the American War, took a decision that compounded difficulties on the Hawkesbury. He sent a detachment of troops to the river., the increased fire-power saw sporadic raids escalate into ‘open war’

‘It appears the determined resolution of the military [Paterson] to support the Despotism of the Lt. Governor [Grose] it is now carried on in a higher degree than in his time. They seem to adopt the Idea that the Natives can be made slaves of…nothing can be more false….they are as free as the air and Governor Phillip’s conduct was highly approved of for reprobating that idea’. [Atkins – February 1795] See: Convict Transportation – The Hulks Act & How the Mindset of Slavery Came to Australia.

1795 – 7 June, Hawkesbury: Captain William Paterson; ‘I therefore sent a detachment of two subalterns and sixty privates of New South Wales to the river, as well to drive the natives to a distance, as for the protection of the settlers.

It gives me concern to have been forced to destroy any of these people, particularly as I have no doubt of their having been cruelly treated by some of the settlers who went out there’. Captain William Paterson to Right Hon. Henry Dundas,15th June 1795.

1795 – 7 September, Sydney: Governor John Hunter RN, Britain’s second commissioned naval Governor of Australia arrived in September three (3) months after Captain Paterson ordered the Hawkesbury raid.

‘On this day Govr. Hunter arrives. ‘How happy is it for this Colony that we have at last a Governor who will make the good of the community at large his particular care, abstracted from all party and dirty pecuniary views’. [Atkins, 7 September 1795]

Soon after he arrived Governor Hunter travelled to Parramatta to stay with Lieutenant John and Elizabeth Macarthur. For this Atkins had one word ‘Ominous’. 

Atkin’s fears were allayed when it became clear Governor Hunter was not deceived by John ‘MacMafia’ Macarthur the slick, get-rich-quick wheeler-dealer.

‘Arrived from Bengal the Brig Arthur laden with spirits, tobacco, sugar etc. A ship from Britain [Ceres] laden with salt and slops’. [Atkins – January 1796]

‘recd. information from Govr. [Hunter] that the Judge Advocate [David Collins] was going home and that I am to succeed him’. [Atkins – 12 February 1796]

It seems after Atkins took up his appointment as Judge-Advocate he was too busy to continue with his diary.

1810 – May: Richard Atkins returned to London on HMS Hindostan in company with ex-Governor William Bligh RN – Britain’s fourth naval governor. Bligh had earlier described Atkins ‘a disgrace to human jurisprudence’.

1820 – November, England: Richard Atkins died ‘insolvent’ nevertheless he has left Australia an invaluable asset. His diary exposes the ‘what’s -yours -is-mine’ attitude inherent in Britain’s ‘original aggression’.

It was a mind-set entrenched by two (2) lengthy periods of absolute military rule firstly 1792-1795 and again 1808-1810.  The ‘Rum Rebellion’ a coup instigated by John Macarthur, by then a civilian agitator. See: Australia Day ‘Rum’ Rebellion

‘In 1837 the Select Committee of the House of Commons on Aborigines (British Settlements) recommended that as the whole land had been taken from the Aborigines in New South Wales…[had ] yielded on sale upwards of hundred thousand pounds a year…’. Barry Bridges, Journal Royal Australian Historical Society, Vol. 56, Part 2, 1965

EPILOGUE

‘At the end of the period of British control over native affairs the Aborigines had no stake in the soil of their native land beyond a few small reserves, and perhaps, the right to limited trespass on leasehold land’. Bridges. op.cit.

1992: Australia’s High Court’s 1992 Mabo decision found ‘terra nullius’‘uninhabited’the founding doctrine of Britain’s ‘original aggression’ – to be ‘legal fiction’.

There was however a sting-in-the tail of the Mabo ruling; ‘Native Title will be extinguished where the traditional holders lose their connection to land’.

Although The First Nations’ Peoples were removed willy-nilly from their country whose boundaries had been fixed for millennia, The High Court took no account of forced removal.

‘Where traditional holders lose their connection to land’ led to decisions such as that of Judge Olney: ‘the right to the occupancy of this [Yorta Yorta] land….have been washed away by the tides of history’.

Continuing connection an ‘institutional [reminder] of Empire’ has resulted in competing claims and the development of what some First Australians describe as ‘Native Title warfare’.

‘To believe that Britain can forget its history, is to believe that Russians should not discuss the crimes of Stalin or Germans the crimes of Nazism. There is a need for a re-writing of history, for the purging of some guilt by its contemplation.

There is not yet in Britain any institutional reminder of the guilts of Empire; the builders of Empire are still the great men of the history texts, and monuments still stand to them in London’. Donald Horne, God is an Englishman, Pelican, 1969.

2019 – Brexit: As the Union of Great Britain appears on a slippery slide to disintegration it is time to take a forensic knife to: ‘the original aggression’  ‘effective occupation’, ‘forced removal’ ‘the tides of history’ ‘the builders of Empire’ ‘the guilts of Empire’. See:  A Continuing Connection – But When The Bough Breaks?

‘An effective resolution will require what the British required as long ago ago as 1768 ‘the consent of the natives’. G. Nettheim, Centre for Aboriginal Economic Policy Research, Monograph No. 7, May 1994, ed. W. Sanders, Australian National University, Goanna Press, 1994

 

AIR-BRUSHED – INVASION – EYES WIDE SHUT

Wednesday, November 1st, 2017

‘The Old Privy Council decision in Cooper V Stuart [1889] was based on the factual errors that Australia was peacefully settled and that Aborigines were never in possession of the land’. Professor Bruce Kercher, An Unruly Child, A History of Law in Australia, 1994

1889 – 3 April, London: Lord Watson, Lord Fitzgerald, Lord Hobhouse, Lord MacNaghton, Sir William Grove, in Cooper V Stuart [1889] 14 AC, Privy Council of the United Kingdom, ruled: [13] ‘There was no land law existing in the Colony (New South Wales) at the time of its [peaceful] annexation to the Crown’.

1790 – 13 December: ‘Bring in six [6] of those natives who reside near the head of Botany Bay, or if that should be found impractical, to put that number to  death…cut off and bring in the heads of the slain’. Extract: General Orders, Governor Arthur Phillip to Marine Captain Watkin Tench, Sydney, 13 December 1790, Historical Records of New South Wales.

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A CRACKER-JACK OPINION – NO SWEAT

Tuesday, July 19th, 2016

‘During the period 1763-1793 the character of the Second British Empire was being formed…the empire of commerce in the Indian and Pacific Oceans’. Vincent T. Harlow, The Founding of the Second British Empire 1763-1793, Vol. 2 Longmans, 1963

1771 – England: In  July 1771 Lieutenant James Cook RN returned to England from the Endeavour voyage (1786-1771) and reported New Holland was inhabited.

‘The natives of the country…live in Tranquility which is not disturb’d by the inequality of condition’. James Cook, Endeavour Journal

ACTUAL OCCUPATION: ‘EXISTING IN FACT’ – OXFORD ENGLISH DICTIONARY

The whole claim of sovereignty and ownership on the basis of terra nullius [no inhabitants] was manifestly based on a misreading of Australian circumstance, not that this prevented Phillip from hoisting the Union Jack in 1788 and expropriating the owners of Sydney Cove. Stuart Mac Intyre, A Concise History of Australia, Melbourne University Press, 2004  

According to international law of the eighteenth century only if territory had no inhabitants could that territory be claimed by another nation then shared out amongst that other nations’ citizens.

England’s lawyers burned midnight oil as they sought to establish legal grounds that would allow Britain take ‘effective occupation’ from those in ‘actual possessionof the island continent of New Holland.

To that end they studied the tortuous twists and turns of English law, as laid down in the ‘Commentaries’ of Sir William Blackstone England’s leading jurist.

But it was James Cook’s poetic ‘Earth and Sea’ musings, when allied to Swiss born Anglophile Eremich Vattel’s Law of Nations, that provided Britain with NO SWEAT as ‘moral and legal justification’ for wresting New Holland; ‘the fifth great continental division of the earth’ from its Peoples.

Vattel’s Law of Nations, a treatise held to be ‘full of inconsistencies and contradictions’, an English translation published anonymously in 1760, had a profound effect on many of America’s revolutionary pamphleteers including Thomas Jefferson, James Otis and cousins Samuel and John Adams.

‘Study of the pamphlets confirmed my old-fashioned view that the America Revolution was above all else an ideological, constitutional, political struggle’. Bernard Bailyn, Forward, Origins of the American Revolution, Belknap Press, Harvard University, 1967

James Otis, a brilliant somewhat erratic Boston lawyer and prolific pamphleteer, is credited with coining the catch-cry of America’s Patriot Revolutionaries; ‘no taxation without representation’.

AMERICA’S WAR OF INDEPENDENCE: 1775-1783

Post the Seven Years’ War (1756-1763) Patriot America’s call for independence centred on opposition to a plethora of taxes imposed by Britain on her American colonists.

Included were taxes on tea and sugar, Stamp and Navigation Acts, plus a miscellany of nit-picking taxes on domestic things such as glass, paint etc. known collectively as the [Charles] Townshend Acts.

But America’s colonists were not as one. Patriots sought independence from Britain, Loyalists fought for Britain and King George III.

‘The New York loyalist Peter Van Schaack reached his decision to oppose Independence on the basis of a close and sympathetic reading of Locke, Vattel, Montesquieu, Grotius, Beccaria and Pufendorf’. Bailyn. op.cit. 

Patriots and Loyalists however sang from the same hymn sheets, citing the same luminaries.

‘In pamphlet after pamphlet the American writers cited…Vattel on the laws of nature and nations and on the principals of civil government’. Bailyn. op. cit.

1775 – April, Massachusetts: At Lexington the war of words became a war of men and of brothers. While France and Spain joined Washington’s Patriot militia, aside from colonial Loyalists, England was without allies.

1783 – September, Versailles: After eight (8) years of conflict, via the Treaty of Paris against all odds, including treachery from within,  Britain lost the colonies of North and South Carolina, Connecticut, Delaware, Georgia, Maryland, Massachusetts, New York, New Hampshire, New Jersey, Pennsylvania, Virginia and Rhode Island, her ‘mighty empire in the west’.

‘Britain’s decision in 1786 to occupy New South Wales was partly to compensate for the loss of the American colonies to which unwanted convicts (some 50,000 before the Declaration of Independence in 1776) had been sent and partly to protect Britain’s control of the sea route to Asia via the Southern Oceans’. Professor Martyn, Oxford Companion to British History, 1997

WILLIAM PITT AND NEW HOLLAND

‘Great Britain under the premiership of the younger Pitt (1783-1806)…asserted rights were conferred by effective occupation’. J.A. Williamson, Cook and the Opening of the Pacific, Cambridge University Press, 1946

New Holland was occupied.  Vattel was the go-to man for England’s lawyers. His Law of Nations paved the way for Britain to establish an ’empire of commerce in the Indian and Pacific Oceans’.

EFFECTIVE OCCUPATION: ‘ANSWERING ITS PURPOSE’

‘We had reason to believe, that the natives associate in tribes of many families together…you may often visit the place where the tribe resides, without finding the whole society there…but in the case of any dispute with a neighbouring tribe, they can be soon assembled’. Captain John Hunter, First Fleet Journal, 1793, Bibliobazaar reprint, 2009

In 1788 Captain John Hunter RN commander of HMS Sirius flagship of the ‘First Fleet described Sydney’s Eora Peoples in terms that met Vattel’s criteria of  ‘a civil society...private and exclusive right’.

‘The territory which a Nation inhabits, whether the Nation moved into it as a body, or whether the families scattered over the territory came together to form a civil society, forms a national settlement, to which the Nation, has a private and exclusive right. Every nation which governs itself, under whatever form, and which does not depend on any other Nation has a private and exclusive right’. Eremich Vatel, Law of Nations, 1760

Vattel provided wriggle room – no sweat – ‘failure to cultivate’. Vattel held ‘distinction’ could be made between ‘cultivated and uncultivated lands’.

‘International law recognised an obligation for people to cultivate the land they used. So, in the case of wandering tribes, so he [Vattel] contended, their failure to cultivate the lands they used meant that they [Australia’s First Peoples] had never taken real and lawful possession of these’. Alex Castles, An Australian Legal History, Law Book Company, 1982. 

‘CULTIVATED’ V ‘UNCULTIVATED’ AND ‘EFFECTIVE OCCUPATION’

‘The natives of the country…live in Tranquillity’ Britain knew New Holland was occupied. But lawyers deemed them ‘wandering tribes’. Therefore they had not earned the right to claim ‘real and lawful possession’ of their lands.

‘The main characteristics of wandering tribes throbbed with disapproval’. Henry Mayhew, London Labour and London Poor, 1851, Cited in The Unknown Mayhew, Eileen Yeo and E.P. Thompson, Schocken Books, New York

Mayhew’s insight reveals the mindset that made Vattel’s ‘wandering tribes’ hypothesis such an agreeable fit for Prime Minister William Pitt and his ‘secretive inner cabinet’ – three (3) powerful politicians Henry Dundas, Lord Hawkesbury and Lord Mulgrave.

A multitude of paupers were Britain’s ‘wandering tribes‘. Criminals, petty thieves and n’er-do-wells, despised and shunned ‘for their lax ideas of property…general improvidence…repugnance to continuous labour…disregard of female honour…love of cruelty…pugnacity…utter want of religion’. Mayhew. op.cit.

Australia’s First Nations’ Peoples were not ‘wandering tribes’ seasonal change dictated movement. They lived vigorous, healthy lives governed by strict protocols. Violation and non-observance of clan strictures were punished.

Exacting laws of avoidance, taboo and trespass, preserved a rich family, cultural and spiritual life.

CULTIVATE: ‘TO DEVELOP (FACULTY, MANNER, HABIT) IN ONESELF OR OTHERS BY PRACTICE OR TRAINING’.

Aboriginal cultivation was dynamic. In rhythm with the seasons it was based on the faculty of acute observation, inherited knowledge, training and regular practice. Understanding and obeying the dictates of their semi-arid land provided ‘all the things necessary for life‘.

‘Lieutenant Ball, who had remarked, as well as myself, that every part of the country, though the most inaccessible and rocky, appeared as if, at certain time of the year, it had been all on fire’. Dr John White, Chief Medical Officer, First Fleet Journal, 1794, reprinted Angus and Robertson, 1961

Fire; ‘a carefully calibrated system [fire] kept some areas open while others grew dark and dense’ was the essential ingredient. Judicious use of fire engineered regeneration, guaranteed repetition and allowed predictable outcomes.

By contrast European ‘planter’ cultivation was static. Tied to river systems in this ‘land of drought and flooding rain’ crops and animals would always be prey to the vagaries of weather making outcomes highly unpredictable.

‘The English were the most explicit of all the European colonizers in seeing themselves as ‘planters’. It provided a moral and legal justification for what might otherwise be regarded as the problematic act of dispossessing native peoples of their lands’. David Day, Conquest, A New History of the Modern World, Harper Collins, 2004

Grazing, cropping, harvesting, storage, all labour intensive were inherently confrontational, as each facet demanded protection. Fences – exclusion –  was the ‘planters’ hallmark.

EPILOGUE

Not until the High Court gave its Mabo judgement in 1992 was there a legal recognition that Aborigines owned and possessed their traditional lands…A similar recognition of prior or continuing sovereignty has yet to occur’. Stuart Mac Intyre. ibid. See: Cape York to South Cape – Your Land is My land

‘An effective resolution will require what the British required as long ago as 1768 ‘the consent of the natives’. G. Nettheim, Centre for Aboriginal Economic Policy Research, Monograph No. 7, May 1994, ed. W. Sanders, Australia National University, Goanna Press, 1994

INVASION – THE GREAT BLACK WHITE DIVIDE

Monday, June 20th, 2016

The Old Privy Council decision in Cooper V Stuart [1889] was based on the factual error that Australia was peacefully settled and that Aborigines were never in possession of the land. That case was also inconsistent with the common law decisions of the United States, Canada and New Zealand. In short, it was wrongly decided’. Professor Bruce Kercher, An Unruly Child, A History of Law in Australia, Allen & Unwin, 1994

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