A ‘kangaroo court’ is no more Australian than a Californian kangaroo rat. The term originated in the California of 1849, as a legacy of the summary and dubious efforts at informal justice on lawless gold fields. By contrast, the Australian gold fields of that period felt heavily the overbearing hand of the law.
This contrast epitomes a larger paradox. Australians are seen as ‘disrespectful of authority’; the truth is they have, from their beginnings, been highly law-prone. In 1788, years before a single bridge had been thrown together, the infant European settlement of Sydney had a significant legal life. In the following decades the favoured priority of civil works was the erection of court houses; numerous, expensive, and over-large. The judges that presided there soon constituted the aristocracy of local society, founding dynasties of a lustre unmatched in business or politics, and establishing their profession as the acme of social distinction. The pitch of glory to which the law now reaches in Australia is reflected in the rampant profusion of law students. Incredibly, Australia now annually graduates, relative to population, five times the number of law students as the United States.
How to explain the blatant disconnect between the Australian reality of a law-addicted culture and the myth of ‘wild colonial boys’? The myth has some glamour, and it is not surprising Australians have cultivated it, and, in part, fabricated it. ‘Waltzing Matilda’ – at one point Australia’s ‘National Song’ – tells of a sheep thief who chose to drown himself rather than be captured by police. This tale was confected by a Sydney solicitor, from misreports of a ‘barmy’ shearer who had abruptly shot himself, to the mystification of his workmates, and without a single ‘trooper’ in sight.
But the myth’s vigour may also traceable to a certain clawhold it has on reality. There is doubleness of the ‘quiet continent’ with respect to law and order; undeniably, a wildness has co-existed with tameness in her history. Australia had plenty of bushangers – but no lynch mobs. It experienced an insurrection in the mid-19th century gold fields –‘the Eureka Stockade’ – but Lord Salisbury was ‘aghast’ at the submissiveness he encountered on those fields; strikes were endemic, but (in general) had an orderliness that left Jack London almost indignant with incredulity during his sojourn in Sydney 1908.
This duality speaks of a hollowness in Australia’s attachment to law, which in turns betrays a characteristically Australian mistaking the sign of the thing for the spirit of it. The Australian deference to symbols of authority might be described as a lawyer-abidingness rather than law-abidingness. The last is probably rooted in a consciousness of legitimacy; a consciousness that quickened in the middle ages, and was intensely exercised in the constitutional and religious struggles of the 17th century, and remains latent in American political sensibility as a legacy of those struggles. Australia received no such bequest: the quarter deck, the parade ground, the flogging triangle: these were her forcing houses.
The thinness in the sense of the legitimate is correlate with Australians’ evident lack of talent in navigating and coping with conflict. In January 2015 two men brawl near Bondi Beach. Not an extraordinary sight: except that the two are scions of Australian business life; James Packer (worth $A5B) and David Gyngel, the then manager of the Channel 9 Network, once owned by James’ father, Kerry. “I went to his place to punch him” Gyngel later explained to the media.
One upshot of this inability to manage conflict is the destructiveness of conflict; and, as a further consequence, a typically Australian anxiety to avoid conflict. If the first impulse is attack, the second thought is to side-step the confrontation, or hope to somehow dissolve it. One manifestation of this is the ready resort in Australia to various legal gadgetry to try to ‘solve’ a conflict. Thus the extensive attempts in Australia to substitute ‘independent’ authorities for economic and political contestation. A spectacular instance is the ‘new province of law and order’ proudly announced a century ago, which inserted tribunals as a compulsory interface between firms and unions, and which to this day regulate, choke, and poison the relations between management and workers. A second instance might be the ill-starred attempt in 1975 of the Governor-General, Sir John Kerr, to ‘solve’, by use of his ‘reserve powers’, a confrontation between the Prime Minister Whitlam and his political enemies. Both attempts to defuse conflict were to prove utterly abortive. By casting business and unions in adversarial postures, Australia’s system of industrial relations has institutionalised conflict; entrenched it; induced it. And Sir John – so deeply involved in that industrial relations system – would have presided over less conflict if he had let politicians strike their blows.
Beyond the futile and counterproductive attempts to avoid conflict, there is another doleful consequence of an impoverished sense of law. Sucking on its dry rind instead of its pith has fostered in Australia an authoritarianism, which utterly belies the myth of ‘the larrikin’. The historian of Australia will be aware that Australia established compulsory peace time military training long before any other Anglophone society. The casual visitor will be struck by the officious signage that festoons and disfigure public spaces; by the high handed confiscations of security guards at public venues, meekly accepted by patrons; by the smoking bans that now extend to every square inch of her huge national parks. I regularly travel by train; I remain dismayed but no longer surprised by loudspeaker announcements that menace any smoker passenger with ‘undercover policeman’ and ‘police sniffer dogs’ if they dare relieve their addiction on board.
Welcome to Australia.
Featured image credit: A Flag in the Breeze by Timothy Swinson, CC-BY-2.0 via Flickr.