The Case of Nie’s Refusal: Gender, Law and Consent in the Shadow of Pacific Slavery

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Notes

1 ‘A Female Slave in Queensland’, Bundaberg Star, 28 December 1881.

2 Mere Lava, also called Star Island or Star Peak, is a small volcanic island with an area of 18 km². The inhabitants speak an Oceanic language known as Mwerlap. I refer to the Indigenous peoples of the colonial New Hebrides by the contemporary term ni-Vanuatu.

3 Percy S Allen, Stewart’s Hand Book of the Pacific Islands; A Reliable Guide to All the Inhabited Islands of the Pacific Ocean, for Traders, Tourists and Settlers (McCarron, Stewart & Co 1919) 9.

4 On ‘testimonial transactions’ see Gillian Whitlock, Postcolonial Life Narratives: Testimonial Transactions (Oxford University Press 2015).

5 ‘A Female Slave in Queensland’ above note 1.

6 Tracey Banivanua Mar, ‘Frontier Space and the Reification of the Rule of Law: Colonial Negotiations in the Western Pacific, 1870–74’ (2009) 30(1) Australian Feminist Law Journal 28.

7 Antoinette Burton, ‘Accounting for Colonial Legal Personhood: New Intersectional Histories from the British Empire’ (2020) 38 Law and History Review 146.

8 As above at 144.

9 For example, under the Polynesian Labourers Act 1868 (Qld); the Pacific Islanders Protection Act 1872 (UK) or ‘Kidnapping Act’; and the Pacific Island Labourers Act 1880 (Qld).

10 Tracey Banivanua Mar, Violence and Colonial Dialogue: The Australian-Pacific Indentured Labor Trade (University of Hawaiʻi Press 2007) 142.

11 Kay Saunders, ‘Melanesian Women in Queensland 1863–1907: Some Methodological Problems involving the Relationship between Racism and Sexism’ (1980) 4(1) Pacific Studies 28.

12 See Clive Moore (ed), The Forgotten People: A History of the Australian South Sea Island Community (Australian Broadcasting Commission 1979); Clive Moore, Kanaka: A History of Melanesian Mackay (PhD Thesis., University of Papua New Guinea 1985).

13 Lydia David, ‘Slavery under the British Flag: Representations of the Pacific Labour Trade in the Anti-Slavery Reporter, 1867–1901’ (unpublished manuscript, 1 January 2015) 4. <http://hdl.handle.net/2123/14006> (last accessed 7 June 2021).

14 Kay Saunders, Workers in Bondage: The Origins and Bases of Unfree Labour in Queensland 1824–1916 (University of Queensland Press 2011); Saunders above note 11.

15 Tracey Banivanua Mar, ‘The Contours of Agency: Women’s Work, Race, and Queensland’s Indentured Labor Trade’ Carol Williams (ed), Indigenous Women and Work: From Labour to Activism (University of Illinois Press 2012) 73. See also Victoria K Haskins and Claire Lowrie (eds), Colonization and Domestic Service: Historical and Contemporary Perspectives (Routledge 2015).

16 See Australian Research Council Discovery Project DP150100914, ‘Intimacy and Violence in Anglo Pacific Rim Settler Colonial Societies’, CIs Lyndall Ryan; Victoria Haskins; Amanda Nettelbeck; Penelope Edmonds; Anna Johnston; Angela Wanhalla. See also Penelope Edmonds and Amanda Nettelbeck, ‘Precarious Intimacies: Cross-Cultural Violence and Proximity in Settler Colonial Economies of the Pacific Rim’ in Penelope Edmonds and Amanda Nettelbeck (eds), Intimacies of Violence in the Settler Colony: Economies of Dispossession around the Pacific Rim (Routledge 2018) 1.

17 Edmonds and Nettelbeck, above note 16 at 1.

18 Amanda Nettelbeck, Indigenous Rights and Colonial Subjecthood: Protection and Reform in the Nineteenth-Century British Empire (Cambridge University Press, 2019); Samuel Furphy and Amanda Nettelbeck (eds), Aboriginal Protection and Its Intermediaries in Britain's Antipodean Colonies (Routledge 2020). In Queensland, the first of Queensland’s ‘protectionist’ laws for Aboriginal peoples was ‘The Aboriginals Protection and Restriction of the Sale of Opium Act’ (1897), which established the framework for government control of reserves and the lives of Aboriginal people, thereby removing the basic freedoms of all Aboriginal people in Queensland.

19 Nettelbeck above note 18 at 176.

20 As above.

21 As above at 177, note 55.

22 As above, Introduction.

23 Saunders above note 14 at 126.

24 As above.

25 As above.

26 As above.

27 Courts of Petty Sessions also known as Magistrates’ Courts provide the lowest level of redress in civil and criminal matters: ‘Wide Bay’ Queenslander 31 December 1881, 839.

28 As above.

29 ‘A Female Slave in Queensland’ above note 1.

30 As above, emphasis added.

31 N A Loos, ‘Queensland’s Kidnapping Act: The Native Labourer’s Protection Act of 1884’ (1980) 4(2) Aboriginal History 150, 169.

32 Preamble, Kidnapping Act 1872 (UK) (35 & 36 Vic c 19); Loos, above note 31 at 159.

33 Taylor notes that Polynesians were allowed to testify under the Oaths Amendment Act 1876 (Qld). It appears that Aboriginal people were excluded from this first amendment, but later were allowed to testify in courts through the Oaths Amendment Act 1884 (Qld): Greg Taylor, ‘A History of Section 127 of the Commonwealth Constitution’ (2016) 42(1) Monash University Law Review 221.

34 ‘“Assault”, Tiaro Police Court’ (Before Messrs. W.G. Bailey, H. Gordon, and J. Dowser, J.J.P.)’ Maryborough Chronicle 23 December 1881.

35 As above, emphasis added.

36 ‘Wide Bay' above note 27 at 839.

37 As above.

38 Tracey Flanagan, Meredith Wilkie, Susanna Iuliano, Australian South Sea Islanders: A Century of Race Discrimination under Australian Law (2003) Australian Human Rights Commission <https://humanrights.gov.au/our-work/race-discrimination/publications/australian-south-sea-islanders-century-race> (last accessed 7 June 2021).

39 Saunders above note 14 at xvii.

40 M R MacGinley, ‘Irish Migration to Queensland, 1885–1912’ (1974) 3(1) Queensland Heritage 12.

41 As above.

42 Michael Quinlan, ‘Australia, 1788–1902: A Workingman's Paradise?’ in Douglas Hay and Paul Craven (eds), Masters, Servants, and Magistrates in Britain and the Empire, 1562-1955 (University of North Carolina Press 2004) 219, 234.

43 As above at 232.

44 ‘Wide Bay’ above note 27.

45 Pacific Islanders Labour Act Amendment Act 1880 (Qld), items 2, 10.

46 Mackay Mercury and South Kennedy Advertiser, 23 October 1880, 2.

47 This quote is from Wood’s cross-summons: Theodore Wood v H.M. Hall – Entering enclosed lands of J.P. Wood without consent of owner or occupier thereof. Case withdrawn.

48 Thanks to Audrey Peyper here for this discussion.

49 ‘Wide Bay’ above note 27.

50 Miguel Vatter and Marc de Leeuw, ‘Human Rights, Legal Personhood and the Impersonality of Embodied Life’ (2019) Law, Culture and the Humanities 1, 4.

51 Kate Stevens, ‘“The Law of the New Hebrides is the Protector of their Lawlessness”: Justice, Race and Colonial Rivalry in the Early Anglo-French Condominium’ (2017) 35(3) Law and History Review 595, 620.

52 Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton University Press 1995) 162–165.

53 Carole Pateman, The Sexual Contract (Polity Press, 1988) 16–18; Sophie Watson, ‘Reviews: The Sexual Contract by Carole Pateman' (1989) 33(1) Feminist Review 105.

54 On the ‘the unlegislatable private realm’ I thank Dr Camille Nurka for her helpful discussion.

55 Alecia Simmons, ‘Courtship, Coverture and Marital Cruelty: Historicising Intimate Violence in the Civil Courts’ (2019) 45(1) Australian Feminist Law Journal 131.

56 Personal communication with Nan Seuffert, April 2021.

57 Audra Simpson, ‘Consent’s Revenge: An Inquiry into the Politics of Refusal’ (Lecture delivered at Anthropology Colloquium Series, Department of Anthropology, Stanford University, 13 March 2017) < https://anthropology.stanford.edu/sites/g/files/sbiybj9346/f/2016-17colloq_simpson.pdf>.

58 Audra Simpson, Mohawk Interruptus: Political Life across the Borders of the Settler State (Duke University Press 2014) 22.

59 United Kingdom, Parliamentary Debates, House of Lords, 6 February 1872, vol 209, col 4 (The Queen's Speech).

60 Saunders, cited in Gerald Horne, The White Pacific: US Imperialism and Black Slavery in the South Seas after the Civil War (University of Hawai’i Press 2007) 5.

61 Reid Mortensen, ‘Slaving in Australian Courts: Blackbirding Cases, 1869–1871’ (2000) 4 Journal of South Pacific Law 1.

62 Banivanua Mar above note 11 at 142.

63 As above.

64 Whitlock above note 4 at 1.

65 As above at 9.

66 ‘The Police Court' Brisbane Courier 13 January 1869, 2.

67 As above.

68 As above.

69 As above; Doug Hunt, ‘Hunting the Blackbirder: Ross Lewin and the Royal Navy’, (2007) 42(1) The Journal of Pacific History 43; Clive Moore notes that the Oaths Act 1867 (Qld) ‘denied non-Christians the right to give sworn evidence’: see Clive Moore, ‘The Pacific Islanders’ Fund and the Misappropriation of the Wages of Deceased Pacific Islanders by the Queensland Government’ (2015) 61(1) Australian Journal of Politics and History 1, 5. Naguinambo would have been declared ‘incompetent’ under section 37 of the Oaths Act (Qld) due to ‘defect of religious knowledge or belief or other cause’.

70 ‘The Police Court’ above note 66.

71 Larissa Behrendt, ‘Consent in a (Neo)Colonial Society’ (2000) 15(33) Australian Feminist Studies 353, 365.

72 As above.

73 Saunders above note 14 at 99.

74 Francis Steel, ‘Servant Mobilities between Fiji and New Zealand: The Transcolonial Politics of Domestic Work and Immigration Restriction, c 1870–1920’ (2018) 15(3) History Australia 519.

75 ‘Theodore Wood v. H. M. Hall – Entering enclosed lands of J. P. Wood without consent of owner or occupier thereof’, Case withdrawn; ‘Wide Bay' above note 27.

76 Banivanua Mar above note 10.

77 ‘Wide Bay’ above note 27.