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What can the last Australian outlaw tell us about our legal history?

7 December 2016

He’s been framed as one of Australia’s most notorious bushrangers – an outlaw that eluded capture for the serial murders of white women and children. His is a story that lives on in archival sources as one of sensational brutality, committed on the momentous eve of Australian Federation.

Professor Katherine Biber

Professor Katherine Biber

The narrative of the Governor Brothers – specifically Jimmy Governor, an Aboriginal farm worker – has always been an anecdote about crime and execution.

But legal historian and UTS Law academic, Professor Katherine Biber, is flipping the Governor story on its head. In her latest research project ‘The Last Outlaw: Making a Nation from the Crimes of Jimmy Governor’, she’s investigating whether the well-worn narrative does indeed have a different side.

What if the tale of Jimmy Governor is less about breaking the law, and more about making the law? And what can his punishment, at the turn of the century, tell us about our legal history, values and institutions?

“Until now, the Governors’ crimes have been told as a story about breaking the law,” Biber’s project proposal says. “In this research, I re-frame the Governors’ crimes as a story that’s actually about making the law, and about law’s preservation.”

Existing primarily as a folklore legend, Jimmy Governor – along with his brother Joe – committed nine brutal murders during 1900, before eluding capture for almost three months. In the largest manhunt ever recorded in Australian history, over 2000 police and volunteers were mobilised to catch them.

Despite having been formally ‘outlawed’ by parliamentary proclamation; a historical legal process that strips the defendant of protection under the law, Jimmy Governor, once arrested, was afforded “every legal protection” possible.

Biber says Governor’s unusual legal treatment at the time of Federation, considering his status as an outlaw, poses vital questions about the creation and preservation of law in the fledgling nation.

“The answers to these questions might be associated with the establishment of the new nation, or they might be associated with specific personalities involved, or there might even be other explanations,” she says. “But my project aims to find out why so many legal protections were afforded to an Aboriginal outlaw who was clearly guilty of dreadful crimes.”

The project, which was recently awarded $239,000 in funding as part of the Australian Research Council’s Discovery Project grant, will examine archival material about Governor in order to gather evidence about how the law worked, and evolved, in the period immediately before and after Federation.

“By examining Governor through the documents generated by his crimes and criminalisation, it becomes possible to see how the law was challenged by his crimes, and then shaped and defended in response to them,” she says.

So far, Biber’s research has focused on the hunt for the Governors, and the period following Jimmy Governor’s capture, when he was imprisoned in a Darlinghurst Gaol.

She says one of her most fascinating discoveries to date is an “extraordinary record” titled “Diary kept by officer doing duty over Jimmy Governor”.

The diary, kept by the three wardens who presided over him while he was in the condemned cells of Darlinghurst Gaol, recorded minute details about Governor’s every move – including his sleeping and eating patterns, “suicidal tendencies” and how much he consulted his Bible.

“No other prisoner in NSW history has ever been recorded in this manner,” she says. “I’ve done research into why this diary was kept, the personnel associated with it, and what it might mean about surveillance and incarceration in the emerging new nation.”

In an era that actively oppressed Indigenous Australians and failed to acknowledge their sovereignty, the postponement of Governor’s execution after his conviction continues to baffle scholars. Several resounding theories persist; including the alluring idea that his execution was delayed so as “not to disturb Federation celebrations”.

Biber’s hoping to validate this theory: “Whilst there is something captivating about the idea that, in 1900, there was unease about inaugurating nationhood with the execution of a black man, there is nothing I can find in the archive so far that supports this claim.”

“I’m looking to investigate further.”

To be completed over the course of three years, Biber’s project will create a comprehensive history of Governor through the eyes of the law. It will culminate in an interactive, multimedia website that will allow visitors to lead themselves through a range of eclectic cultural sources.

Not only will the project’s findings uncover revelations about our nation’s legal history, it will finally shed light on the mystery of the man himself – a largely forgotten, but not insignificant, historical figure.

Wonders Biber: “Who was the person whose crimes coincided with the foundation of our nation; and was he a bushranger, an Aboriginal freedom fighter, a serial killer, or a sociopath?”

Story by: Tess Gibney