The Children’s Court: Implications of a New Jurisdiction Jennifer Marie Anderson https://orcid.org/0000-0001-5562-6383 Williamstown Police Court c. 1890s with children in foreground Andrew Rider (1821 – 1903), State Library Victoria, H86.98/640. Doctor of Philosophy March 2021 Melbourne Law School and School of Social and Political Studies University of Melbourne Submitted in total fulfilment for the degree of Doctor of Philosophy ABSTRACT This thesis examines the establishment of Children’s Courts in the state of Victoria through the Children’s Court Act 1906 (Vic) and the campaign for legislative change in the city of Melbourne. It asks as its central question why the foundation of a separate Court was, and continues to be, understood as a primary response to children’s social and economic disadvantage. The thesis employs social history methodologies to show, through close jurisprudential examination of archives, how the Children’s Court was theorised by middle class reformers as a solution to their anxieties about the public behaviour of poor urban children in early twentieth-century Melbourne. It reveals how those anxieties were projected on to concerns over Court environment and procedures, as well as how key decisions about which children should be included within (and excluded from) the new jurisdiction reflected reformers’ social and moral understandings about criminal responsibility, poverty and welfare, race and gender. The thesis also documents the experiences of children who were the subject of historical Court intervention. Their life stories demonstrate the close interrelationship between structural disadvantage and a Court appearance. This research project has both historical and contemporary significance. The modern Victorian Children’s Court is a site of much contention, with ongoing debates about its remit and effectiveness. This thesis offers the first comprehensive history of early Children’s Courts in Victoria, but it also contributes vital historical context to current policy discussions. Overall, my thesis makes visible why the Children’s Court is a continuously-reanimated site for a set of legal and social questions about public responsibility for children in Victoria. It offers a methodology through which the state’s continued reliance on the Court system as a solution to children’s multifaceted social problems can be both understood and critiqued. The thesis invites discussion about how states invested in Children’s Courts, then and now, and challenges public ideas about what is required for their effective operation. My conclusion is that early twentieth- century reformers’ emphasis on the Court system set a problematic precedent. The Children’s Court Act consolidated some valuable changes around the legal treatment of children, and for this reason I argue that the Children’s Court is an institution worth defending. However the new jurisdiction also masked structural inequalities, ii entrenching further the criminalisation of poverty and embedding racial and gender differences. These patterns, and their implications, continue today. iii DECLARATION I hereby declare that the thesis comprises only my original work towards the degree of Doctor of Philosophy; that due acknowledgement has been made in the text to all other material used; and that the text and argument of this thesis inclusive of footnotes is 99,432 words in length, exclusive of tables, bibliographies and appendices. Jennifer M. Anderson 31 March 2021 iv ACKNOWLEDGEMENTS I owe thanks to many people who have made the final submission of this thesis possible. My supervisors, Associate Professor Ann Genovese and Associate Professor Julie Evans, have been immensely helpful in directing what became the final version of this project, as well as extremely patient throughout an unexpectedly long process. Thank you both – we finally got there! I would also like to thank Professor John Tobin, Professor Kirsty Gower, Professor Peter Rush and Professor Shaun McVeigh of the Melbourne Law School, whose valuable feedback at different stages of this project was incredibly helpful. I also owe a debt to the amazing staff at the research office at Melbourne Law School, with particular thanks to Rebecca Croser. You have also been very patient. This thesis has been completed whilst also working in legal practice at, over the years, Darebin Community Legal Centre, St Kilda Legal Service, and Victoria Legal Aid. I would like to thank my colleagues and friends from all three, who have expressed both interest and encouragement. My work, largely practising in the Children’s Court jurisdiction, provided invaluable contemporary context for this historical project and brought home the ongoing implications of decisions about how we as a society respond to vulnerable children and their families. Victoria Legal Aid also kindly granted me several periods of paid study leave, as well as allowing me to take an extended period of leave in 2018. I am very grateful for this assistance, without which it would have been very difficult to find the time to complete the project. I would also like to thank the staff of Public Record Office Victoria, the State Library Victoria, the State Library of South Australia, the National Library of Australia and the Baillieu Library, University of Melbourne, for their assistance in locating the archives cited in this thesis. I also could not have done this without the help and support of good friends and family. Jeffrey Kam, Charlotte Smith, Leonie Tonkin, Florence Wong, Hui Zhou and Ange Zhou have cheered this on for many years. My brother David and niece Ellie hosted me for study visits in Canberra and have provided much support throughout. My deepest gratitude, however, is to my mother Margaret Anderson, without whom this project could v undoubtedly not have been completed. An historian herself, she has read and commented on many chapters of this thesis as well as providing invaluable personal support (including, especially during 2020, a significant amount of babysitting!) And finally, to my daughter Evie, who is largely unaware of the project and puts it all in perspective. vi TABLE OF CONTENTS Abstract ............................................................................................................................................................................... ii Declaration ....................................................................................................................................................................... iv Acknowledgements ...................................................................................................................................................... v Introduction ...................................................................................................................................................................... 1 Part I: Reformers and Children ........................................................................................................................... 37 1. Delinquency and the Law, 1816 - 1890 .................................................................................................... 38 2. Responding to Delinquency in Melbourne, 1890 - 1906 ................................................................... 70 3. Children in the Police Courts, 1890 - 1906 ............................................................................................. 96 Part II: The Children’s Court Movement ..................................................................................................... 130 4. The Campaign for a Court ............................................................................................................................ 131 5. Creating the Children’s Court..................................................................................................................... 158 Part III: Children’s Courts – Solution or Problem? ................................................................................ 189 6. Children’s Courts in Operation, 1907 - 1910 ....................................................................................... 190 7. Fitzroy Children’s Court ............................................................................................................................... 220 Conclusion.................................................................................................................................................................... 246 Bibliography ............................................................................................................................................................... 259 Appendices .................................................................................................................................................................. 276 Appendix A: Criminal Statistics 1890 - 1906 ....................................................................................... 278 Appendix B: Neglected Children and Reformatory Committals 1890 - 1906 ........................ 285 Appendix C: Children’s Court Statistics (Victoria) 1907 - 1910 .................................................. 288 Appendix D: Children’s Court Statistics (Fitzroy) 1907 - 1910 ................................................... 292 Appendix E: Children in the Courts: Further Histories ................................................................... 296 vii INTRODUCTION Introduction and Research Questions The modern Victorian Children’s