Aboriginal Protection and Parens Patriae: Indigenous Youths, Juvenile Delinquents, and the Reformatory Principle in Australia and England

This article explores the connections between childhood and protection by examining the legal history of the British settler empire. Christina Twomey has recently argued that “a comprehensive genealogy” of the origins and rationale of British imperial protection still needs to be written. This essay aims to contribute to reconstructing this genealogy by interrogating the legal foundations of Aboriginal protection through the lens of 18th- and 19th-century imperial practices of rehabilitation of “problem youth”. In particular, this work centres on two case studies related to England and colonial Australia. The first case study concerns the reformatory established by the charitable association, the Philanthropic Society, in London in 1788 to rehabilitate juvenile delinquents and the children of vagrants and convicts; the second concerns the residential working school for Indigenous youths promoted by Assistant Protector of Aborigines, Edward John Eyre, at his protective station in Moorundie, South Australia, in the early 1840s. After outlining the history and principles of Aboriginal protection in the early 19th century in section 2, section 3 discusses the treatment of Indigenous and criminal youths within the context of Eyre’s Protectorate and the Philanthropic Society’s institution. Section 4 locates these experiments in juvenile rehabilitation within the same comparative framework by examining the legal justification for reformatories in both the metropole and its colonies, whereas section 5 investigates the ancient English legal doctrine of parens patriae and its late 18th-century developments, proposing that this doctrine is one of the sets of legitimations underpinning the policy of Aboriginal protection in the British colonial “Antipodes”. Finally, section 6 concludes by contextualising the interplay between parens patriae and Aboriginal protection within the wider framework of legal transfer in the common law world.