Indigenous History during and after Colonisation
The Word “Aboriginal” and Exclusion from Justice in Colonial Victoria
MLA Educational Series — Language, Law, and Colonisation
The word Aboriginal is widely used today to describe the First Peoples of Australia, yet its origins are deeply entwined with colonial power, categorisation, and dispossession. In early colonial Victoria, Europeans used the label to describe diverse and sovereign nations who identified themselves by their own language groups and Country — Gunditjmara, Wadawurrung, Taungurung, Woiwurrung, Dja Dja Wurrung, Yorta Yorta, and many more (Broome 2005; Barwick 1998). At the same time, Aboriginal people were denied fundamental rights in the colonial legal system. They were not permitted to give evidence in court unless they swore an oath on the Christian Bible — an act many refused, as it contradicted their own spiritual law (Reynolds 1987; Clark 1995). This exclusion meant that crimes against Aboriginal people often went unpunished, helping to enable massacres and dispossession across Victoria.
The Origins of the Word “Aboriginal”
Etymology
The term Aboriginal comes from the Latin ab origine, meaning “from the beginning” or “original inhabitants” (Oxford English Dictionary 2023). Europeans applied it broadly to Indigenous peoples in colonised lands, from Canada to India and Australia, often implying primitivism or otherness (Smith 1999).
Colonial Usage in Australia
When used in early Australian colonies, the word Aboriginal homogenised hundreds of distinct nations into a single category (Broome 2005). Colonial administrators, surveyors, and missionaries in Victoria spoke of “the Aborigines” as though they were one group, erasing linguistic, legal, and cultural diversity. While Aboriginal has since been reclaimed in political and legal discourse, many Victorian communities prefer identifiers that affirm connection to Country and culture — such as Koorie (used in Victoria and southern New South Wales) or local names like Wadawurrung, Gunditjmara, and Taungurung (Barwick 1998; Clark 1995).
Aboriginal Exclusion from Colonial Courts
British Law and Racial Inequality
When British law was imposed in Port Phillip in the early 19th century, Aboriginal peoples were subjected to its authority but denied its protections (Reynolds 1987). Colonial courts operated under a Christian oath system, requiring witnesses to swear upon the Bible to affirm truthfulness. Those who did not share Christian beliefs were deemed “incompetent witnesses” (McGrath 1995).
The Rule of Oaths
Because many Aboriginal people would not swear on a Christian Bible, their testimony was legally inadmissible. The effects were catastrophic:
Aboriginal witnesses could not testify against settlers who committed murder or assault.
Evidence of massacres and abductions was routinely dismissed.
Settlers accused of violence were often acquitted due to “lack of admissible evidence” (Clark 1995; Reynolds 1987).
This exclusion turned the colonial justice system into an instrument of racial inequality, silencing Aboriginal voices in cases where they were the principal victims and witnesses.
Consequences and Historical Examples
The impact of legal exclusion was visible across frontier Victoria between the 1830s and 1850s. During the Frontier Wars, the imbalance of law and testimony reinforced the dispossession of Aboriginal people and the impunity of settlers (Broome 2005; Clark 1995).
Case Studies:
The Convincing Ground Massacre (c.1833): Near Portland, Gunditjmara survivors were unable to give evidence against whalers who had attacked their group. No prosecutions followed (Clark 1995).
The Faithfull Massacre Retaliations (1838): Following violence near Benalla, reprisal killings by settlers went unpunished because Aboriginal testimony was disallowed (Reynolds 1987).
Myall Creek Trial (1838, NSW): Although outside Victoria, this case showed the rarity of justice; it was one of the only times in Australian history when Europeans were executed for murdering Aboriginal people (Ryan 2010).
These examples reveal a consistent pattern: Aboriginal people were subjected to British law but excluded from participating in it as equals.
A System of Racial Exclusion
This judicial exclusion was part of a broader colonial structure of control. The creation of missions and reserves, the Half-Caste Acts, and the denial of voting rights all formed part of a system designed to regulate Aboriginal movement, family life, and autonomy (Barwick 1998; Broome 2005). The legal silencing of Aboriginal people during the 19th century helped entrench systemic racism in Australian governance.
Change and Legacy
By the 1850s, reforms in Britain and its colonies permitted “heathen oaths” or secular affirmations, but the damage in Victoria had already been done (Reynolds 1987; McGrath 1995). Many crimes had gone unpunished, and trust in the justice system was broken for generations. In the 21st century, truth-telling initiatives such as the Yoorrook Justice Commission have revisited these historical injustices. Yoorrook’s findings acknowledge that Aboriginal exclusion from colonial courts contributed to the genocide of First Peoples in Victoria (The Guardian 2025; Yoorrook Justice Commission 2023). These processes form part of a wider movement toward Treaty and sovereignty, placing Aboriginal law and truth at the centre of justice.
Global Comparisons
The Victorian experience reflected a global colonial pattern:
In North America, Native Americans were often barred from testifying against white settlers in 19th-century US courts (Deloria 1988).
In South Africa, under apartheid and before, Indigenous Africans were legally classified as “non-credible” witnesses (Kosanovich 2016).
In New Zealand, despite the Treaty of Waitangi (1840), Māori testimony was often dismissed in land disputes with settlers (Orange 2015).
Such examples show that colonial legal systems worldwide served to legitimise dispossession and suppress Indigenous authority.
Conclusion
The word Aboriginal embodies both colonial categorisation and Indigenous resilience. In Victoria, while the term once flattened cultural diversity, Aboriginal peoples — Koorie, Wadawurrung, Gunditjmara, Taungurung, Yorta Yorta, and others — continue to assert sovereignty and identity through language, law, and Country. The denial of Aboriginal testimony in colonial courts exposes how language and law worked together to enforce injustice. Recognising this exclusion is crucial to understanding Australia’s colonial history and to supporting the present-day movements for Treaty, truth-telling, and self-determination.
Reference List
Barwick, D. (1998). Rebellion at Coranderrk: The Story of an Australian Aboriginal Community. Canberra: Aboriginal History Monograph.
Broome, R. (2005). Aboriginal Victorians: A History Since 1800. Sydney: Allen & Unwin.
Clark, I. D. (1995). Scars in the Landscape: A Register of Massacre Sites in Western Victoria 1803–1859. Canberra: Aboriginal Studies Press.
Deloria, V. (1988). Custer Died for Your Sins: An Indian Manifesto. Norman: University of Oklahoma Press.
Kosanovich, K. (2016). “Colonial Justice and Testimonial Exclusion in South Africa.” Journal of African Legal History, 12(3), 45–63.
McGrath, A. (1995). Contested Ground: Australian Aborigines under the British Crown. Sydney: Allen & Unwin.
Orange, C. (2015). The Treaty of Waitangi. Wellington: Bridget Williams Books.
Oxford English Dictionary. (2023). “Aboriginal.” OED Online. Oxford University Press.
Reynolds, H. (1987). The Law of the Land. Ringwood: Penguin.
Ryan, L. (2010). Tasmanian Aborigines: A History Since 1803. Sydney: Allen & Unwin.
The Guardian. (2025). “Victoria’s Indigenous People Experienced Genocide, Truth-Telling Inquiry Says.” Available at: https://www.theguardian.com/australia-news/2025/jul/01/victorias-indigenous-people-experienced-genocide-truth-telling-inquiry-says [Accessed 9 Sept. 2025].
Yoorrook Justice Commission. (2023). Interim Report: Truth-Telling and Justice in Victoria. Melbourne: State of Victoria.
Written, Researched and Directed by James Vegter (22 October 2025)
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