You’ve heard the saying ‘context is everything’. For Faculty of Law Professor Katherine Biber, she’s using context to explore the foundations of modern law and criminal justice in Australia.
Biber’s current research project, funded by the Australian Research Council, is focused on the case of colonial Australia’s last outlaw Jimmy Governor. Governor, together with his brother Joe, were outlawed after killing nine people in the year 1900. Joe was subsequently killed by a hunter, while Jimmy was shot, then apprehended and left to face the criminal justice system.
“One hundred and seventeen years on, the case of Jimmy Governor still endures,” affirms Biber.
Though Governor’s story has been captured in books, poetry, theatre and film, Biber’s work is the first time it’s been investigated through the prism of the law. She is examining his treatment in the context of Australian Federation, which established the new nation in 1901.
So far, Biber’s research has revealed a series of unexpected and unusual legal processes behind Governor’s capture, trial and execution. She believes the context of Federation might help to explain these unconventional approaches, in part because the authorities in question didn’t want to “kick off a new nation by hanging a black man”.
“We have identified that all the personnel involved in this high-profile case – the Attorney-General who didn't want to outlaw him, his lawyer who ended up becoming an Attorney-General, his other lawyer who ended up becoming a High Court judge – were all important figures in the Federation movement,” says Biber. “And whilst they were busily working on Federation, they were also involved in bringing Jimmy Governor to justice.
“It seemed that some of the bigger principles about what kind of nation do we want to have, and what kind of rule of law do we want to have, were actively in the minds of the people who were also trying to apprehend, defend and punish Jimmy Governor.”
In some ways, Biber believes this case is a precursor for some contemporary instances where administrative or executive powers are used to blur the separation of powers – the mechanism enabling the three branches of government (legislature, executive and judiciary) to maintain checks and balances on each other.
She cites control orders, preventive detention, emergency intervention and other risk-mitigation measures as examples in which the rule of law is tested and proper oversight might be neglected.
“In the modern climate of terrorism and counter-terrorism, we are also seeing more and more instances where administrative orders are used, or usual legal processes are suspended, to detain people whose detention hasn't been scrutinised by a court.”
Biber believes her unique research approach – combining historical and archival methods with legal doctrine and modern criminological theory – will generate new knowledge about practices of policing, punishment and surveillance in today’s nation.
“Through this research, I hope to contribute to our understanding of what motivates our society to police and punish criminal behaviour in the way that it does. These are relatively modern traditions, but they've evolved because of past criminal conduct and the challenges it poses to our legal values and institutions.”