Australia's Frontier Wars

Is there a legal reason why Australia’s Frontier Wars can’t be officially recognized and commemorated?

By Dr Samuel White, UNSW Canberra

In 1998, the then Prime Minister, John Howard rejected the idea that the Australian War Memorial should commemorate Aboriginal people who died in the Frontier Wars on an apparently straightforward basis: “If you want to be legalistic about it, the state of war didn’t exist.”

But is that legally correct? I question that.

The problem is that neither law nor the history of warfare provides a simple test for deciding when violence becomes war. 

There was no single declaration beginning the Frontier Wars, no unified First Nations army and no treaty formally bringing them to an end. But declarations, uniforms and conventional armies have never been necessary ingredients of war. Australia did not formally declare war in Korea, Vietnam, Iraq or Afghanistan either. In fact, the last two countries we declared war against were Bulgaria and Thailand (in 1942). I don’t see them in the Australian War Memorial. 

Put simply, a declaration of war is not required for a war to take place. For centuries, lawyers and military thinkers have instead looked to the character and purpose of violence. 

Hugo Grotius, who was a major figure in the fields of philosophy, political theory and law during the 16th and 17th centuries, understood war as a state existing between parties contending through force. Carl von Clausewitz, a 19th century military theorist, later described it as an act of force intended to compel an enemy to do one’s will.

That distinction matters in Australia. Violence and force accompanied the expansion of British colonial authority across Country already occupied and governed by First Nations peoples. In some places it was isolated or interpersonal. Elsewhere, Aboriginal warriors mobilised collectively, resisted colonial expansion, contested territory and fought sustained campaigns. Not every frontier killing was an act of war, but neither can all that violence simply be reduced to acts of crime, policing or disorder.

Indeed, 18th century English law makes the distinction even more uncomfortable. 18th century legal expert and judge, Sir William Blackstone understood conquest as a forcible change in political authority: an enemy became a subject. Conquest did not require annihilating another people or defeating them in a European-style pitched battle.

That suggests the better question is not whether the Frontier Wars looked sufficiently like European warfare. It is whether political authority was being contested through organised force. The answer will differ across Australia and across more than a century of colonial expansion. 

Some episodes may properly be called wars, especially those conflicts that involved planned collective effort on both sides and battles that were fought over territory. Other episodes, although still violent and using force, probably wouldn’t be included under the broad catch-all of war due to their limited scale and opportunistic and ad-hoc nature. 

But one argument can be put aside: the absence of a formal declaration does not mean war did not exist.

Law does not give us that easy escape, so there is no reason why we can’t reinvigorate a national discussion about whether the Frontier battles should be recognised in a similar way to the wars that are commemorated currently.