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Poor Laws: A Historiography of Vagrancy in Australia

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DOI: 10.1111/hic3.12052

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History Compass (2013): 10.1111/hic3.12052

Poor Laws: A Historiography of Vagrancy in Australia†

Julie Kimber*
Faculty of Life and Social Sciences, Swinburne University of Technology

Abstract
The study of vagrancy forms part of a larger investigation into the social origins of law, the structures
of inequality and the gendered and racially discriminatory aspects of societies. A full analysis of
vagrancy in Australia must necessarily begin with the inherited traditions of its colonial master, its
convict origins and the defensive nature of European settlement. While the former provided the moral
and legal framework, the latter played a longer and more influential role in establishing the interven-
tionist nature of government in Australia. Despite sharing significant commonalities with the British,
Australia’s vagrancy laws differed in their application in important ways. As with other colonial
regimes, most notably the United States and South Africa, vagrancy laws provided authorities with
broad powers, which enabled them to punish vice and to impose social order on the structures of
inequality in class, race and gender.

The image of the vagrant1 is both place bound and universal. In Australia, the swagman,
captured in the poem turned song Waltzing Matilda, lingers in the popular imagination, with
his ‘apotheosis’ described in Russel Ward’s The Australian Legend.2 While 20th century
vagrants would borrow heavily from the language and culture of the North American hobo,
his 19th century counterpart was a bushman, beloved in abstract and romanticised in print.
But as with other places, the personification of the vagrant-as-swagman contradicts the real-
ities of Australian society: increasingly urbanised and just as prone to moral panics about the
degenerate and criminal class as elsewhere. As this suggests, the popular image of the vagrant
and the laws of vagrancy are not synonymous, though their coexistence reveals something of
the propagation of myths about personal liberty despite the limits of freedom.
Laws against vagrancy can be found in almost all states that rely on the buying and selling of
labour. Australia’s vagrancy laws were, like other former British colonies, inherited and adapted
to suit local conditions.3 William Chambliss, the pre-eminent scholar of vagrancy laws, has
noted their earliest iteration, directed at free labour, in England in 1349. In Caleb Foote’s
words, these laws became a ‘substitute for serfdom’,4 designed to provide labour for landowners
‘at a price he could afford to pay’.5 As has been described elsewhere, these laws prohibited the
giving of alms to those who could work, while later amendments circumscribed people’s move-
ments by criminalising those leaving towns during harvest times.6 While work lay at the heart of
vagrancy laws, it was the fear of idle hands and the mobility of the mob that gave these laws their
moral force. In this, distinctions were made between the ‘settled’ and the ‘vagrant’ poor.7
Despite debate as to the extent to which the vagrancy laws were enforced over the subse-
quent 200 years, there is consensus that by the mid-16th century they were being used to
construct a ‘social order of England’.8 By the early 19th century, numerous changes had been
made to the laws of vagrancy, as ‘adaptive responses to significant changes in local socioeco-
nomic relationships.’ 9
As the more gruesome penalties for vagrancy gave way to prison sentences and fines, these
laws, together with the new poor and labour laws, were, depending on one’s ideological

© 2013 John Wiley & Sons Ltd

Vagrancy in Australia

compass, either coercive mechanisms of social control or a ‘moral decision: an effort to

discourage dependency and preserve the respectability of the independent poor’.10 In either
perspective, this legal triumvirate cemented the lingering dichotomy of deserving and
undeserving poor, with the latter responsible for a generalised ‘moral decay’ increasingly
perceived as part of an emerging criminal class.11
Central to these laws of vagrancy was the element of discretion in determining vagrant
status. Ostensibly to ensure the deserving poor were not unfairly convicted of the offence
of vagrancy, this discretion was also its power. The flexibility of the laws of vagrancy makes
it unsurprising that they were adopted by colonial regimes.12 These laws were particularly
useful in societies transitioning from slave to free labour, where systems of indenture neces-
sitated both protection and persuasion. In the antebellum period in the United States,
vagrancy laws that were used to return ‘runaway slaves to their masters’ were later applied
‘to force freed slaves into contracts’.13 In Mauritius, vagrancy laws assisted in controlling
agricultural labour and indentured immigrants.14 While in India, their use was primarily
targeted at European, rather than Indian, vagrants whose public begging and behaviour
had become an embarrassment to the colonial authorities.15 In many nations, but perhaps
particularly in North America, South Africa and Australia, vagrancy laws were used as social
policy devices that targeted race as well as ‘vice’.
Although there is no authoritative account of people’s experiences of vagrancy laws across
Australia, there is a vast literature on the social origins and application of law generally in
Australian society and of the people subject to those laws. These include the interrelated
studies of convictism, Indigenous history, policing, welfare, labour, criminology, pauper
studies, law reform, homelessness and prostitution. While many of these studies address
vagrancy laws tangentially, they nonetheless provide the context for their use.
Paula Byrne’s Criminal Law and Colonial Subject identifies the particularities of Australia’s
first European settlement – the penal society of Sydney – as helping to shape criminal law
in relatively distinct ways. Her work highlights that the extensive surveillance of the popu-
lation, a necessity in a convict settlement, continued as the society grew to be dominated
by both the free and the emancipist. Through the same moral prism which animated the
British reformers, such vigilance was aimed particularly at the ‘disorderly, desperate in char-
acter, idle and profligate’ people roaming the streets of Sydney.16
Where the convict system provided the ‘outlines of existence for persons who came or
became free’, the theories of moral decay elevated ‘the notion of the yeoman farmer’ though
the ‘regulation of “idleness”.’17 Such regulation would come in the form of vagrancy laws,
though not necessarily of the type desired by the colonial authorities.18
In both New Zealand and Australia, the English Vagrancy Act of 182419 formed the basis
of subsequent laws in the colonies. The 1824 Act has been described by David Jones as ‘one
of the most flexible, useful and criminal making statutes of the century’.20 Vagrancy statutes
or provisions within Police Ordinances were passed in Tasmania (1824), New South Wales
(1835), South Australia (1844), Queensland (1851), Victoria (1852), Western Australia
(1892), the Northern Territory (1923) and the Australian Capital Territory (1930).21
Like their British counterpart, these laws were vague enough to enable large police and
magisterial discretion, with those contravening the various sections classed as ‘idle and disor-
derly persons’, ‘rogues and vagabonds’ or ‘incorrigible rogues’.22 Their earliest purpose in the
colonies of Australia was to establish order among the free and recently freed population, to
stop the migration of ex-convicts, especially from ‘the moral swamps of Van Diemen’s
Land’,23 and to prevent miscegenation. As in Britain, these vagrancy statutes worked in
tandem with labour law, through the Master and Servants Acts, under which workers could
be gaoled for ‘disobedience’, ‘misconduct’ or ‘misdemeanour’.24

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 Vagrancy in Australia

Poor Laws, the third legal English mechanism for uplift or control, were never introduced
in the colonies of Australia. Although charities with state or church backing provided similar
functions, the perception in the colonies of Australia (in an echo of debates occurring in
Britain) was that the English Poor Laws entrenched dependence. The colonial governments
instead promoted private charity – the Benevolent Society in NSW, for example – and
established orphanages, industrial schools and workhouses. Early exceptions to this included
the care for ex-convicts. Research into the provision for the poor demonstrates that colonial
governments adapted their responses as conditions changed.25 Crucially, however, Poor
Laws and their embedded rights to assistance for much of the free population were absent.
Alistair Davidson makes a strong case that the combined effects of the vagrancy laws and
the Master and Servants Acts amounted to the continued application of convict governance
to a free society.26 But any research that examines this contention would do well to also assess
how the abrogation of responsibility to the destitute poor, not evident in the ‘command
state’ of the penal colony, alters such a conclusion.
The extensive research on poverty in Australia shows that despite not enacting formal
Poor Laws, the colonies and the charity networks did borrow from the ideas that informed
such laws. These included the ‘workhouse test’ where appropriate (relief only in exchange
for work) and the notion of ‘less eligibility’ (any relief offered to the destitute poor had to
be worse than that obtainable through work of the lowest paid). Central also was the sepa-
ration between the deserving and undeserving poor. In such a dichotomy, vagrancy laws
came into their own. Rachel Vorspan has argued that this ‘moral discrimination’, despite
ostensibly infringing ‘orthodox Poor Law theory’, was nonetheless also characteristic of the
British experience in the late 19th century.27
The NSW 1835 Vagrancy Act provided a maximum penalty of 3 months gaol (later
increased to six) for any person found to be ‘idle and disorderly’. This offence included
begging, being a ‘habitual drunkard’ or a ‘common prostitute’ behaving in a ‘riotous or
indecent manner’. Charged with an offence, defendants had to demonstrate their innocence.
As Alex Steel has noted, this law also included two colonial adaptations, which prohibited
‘wandering in company with any of the Black natives’ and being unlawfully in a house with
‘reputed thieves or persons who have no visible lawful means of support’.28
These consorting provisions were aimed at avoiding ‘criminal contagion’29 on the one
hand, and to both ‘protect’, and remove the influence of, Aborigines on the other. Central
to the notion of being an ‘idle and disorderly’ person was whether an individual had ‘lawful’
(later sufficient) ‘means of support’. There is evidence that, in the absence of the right to Poor
Laws, paupers in the various colonies of Australia would be prime targets of vagrancy provi-
sions.30 However, more research is needed to fully grasp the extent to which the poor, rather
than the deliberately idle, were convicted of this offence in the early to mid-19th century.
Nonetheless, several studies are illuminating in this regard.
Christina Twomey’s research has highlighted the ambiguity of the relationship of women
to the state in the mid-19th century. Her research reveals that in 1858, 42% of women in
prison were serving sentences for vagrancy. This work confirms the powerful role played
by magistrates and police in maintaining ‘social order’ in communities. While acknowledging
the sometimes ‘benevolent’ behaviour of police in voluntary appearances for support in
court, she emphasises that involuntary appearances designated other destitute women as
‘licentious’, ‘unaccompanied’ women of ‘ill repute’. 31
These perceptions of women are underscored by Joy Damousi’s research. Her work has
shown that from the outset vagrancy laws in the colonies embodied a gendered fear of
women’s sexuality. A heavy policy emphasis was placed on the institution of marriage as
the solution to the ‘depravity’ of the female convicts, who would otherwise live a ‘vagrant,

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Vagrancy in Australia

wandering, idle, vicious life to the end of their days’.32 Damousi argued that vagrancy laws
and the establishment of the part refuge, workhouse and gaol – the Female Factory – were
direct responses to what Michael Sturma called the ‘almost obsessional interest’ by the middle
classes of ‘feminine sin’.33 This observation is backed up by the wide research on prostitution
in Australia.
While prostitution was not illegal in the colonies (illegality would come later), we know
from the literature on the related topics of prostitution and police powers that women, either
simply ‘licentious’ or prostitute, were frequently the target of ‘public nuisance’ laws.34
Deborah Oxley has demonstrated that while the Irish sent transported women convicted
for vagrancy to Australia, the British did not. As such, only a small percentage of women sent
to the colonies were vagrants.35 Despite this, the research by Twomey and others reveals that
convictions for vagrancy would become one of the main criminal law sanctions used against
women in Australia.
The perception of working class women as vagrants, potential or actual, has large implica-
tions given the then prevalent ideas of the inherited and contagious nature of crime.36
Twomey’s examination of the Neglected and Criminal Children’s Act bears this out. This work
reveals the fears held by authorities that vagrant and deserted mothers increased the ‘potential
criminality of their children’: ‘the offspring of sin and wretchedness’.37 Work by Sandra
Berns, Gladys Scrivener and others have also examined the interplay between criminal
law, destitution and the removal of children.38 Scrivener’s work on the industrial schools
in New South Wales between 1897 and 1905 shows that it was the police who ‘constructed’
the ‘population of the industrial schools’.39
Studies such as these would suggest that the charge of vagrancy operated both as a social
policy and criminal sanction. While this is not surprising given the restructuring of social or-
der being attempted throughout the British Empire, the underlying assumptions harboured
by those who constructed and enforced these laws do suggest that they were in part ‘sham’.
This conclusion is also suggested by Jan Ryan’s research. Ryan has pointed out that after
the introduction of laws that criminalised soliciting (for example, from 1892 in Western
Australia),40 some of the women convicted under vagrancy laws were neither vagrant nor
prostitute in our contemporary understanding.41 As has long been noted by feminist
historians, the ‘regulation of women’s sexuality’ in Australia, as with other colonial societies,
was intimately connected with issues of race and ethnicity.42
Ryan’s work makes clear that authorities, preoccupied with the ‘national and international
debates on eugenics’, used vagrancy legislation to punish women who transgressed racial
mores. In these examples, numerous women were arrested and convicted of vagrancy simply
because they lived or associated with Chinese men.43 These cases highlight both the futility
of examining the convictions of vagrancy as abstract statistics of crime and the difficulties of
assessing vagrancy as anything other than a meaningless, though politically useful, ‘criminal
making’44 device.
That individuals convicted of vagrancy offences were not necessarily ‘vagrants’ is evident
in the research undertaken by Susanne Davies. Using a one in ten sample of cases appearing
before the Court of Petty Sessions in Melbourne between 1888 and 1901, Davies’ path-
breaking doctoral thesis revealed that the laws were used to prosecute ‘a wide cross section
of the community, including the criminal, the poor, the weak, the suspected and the simply
annoying’.45 Several illuminating aspects about vagrancy laws emerge from this thesis not
least the complex understanding that the success of the laws was partially dependant on its
acceptance by the public.
When faced with the biting circumstances of the 1890s depression, for example, attempts
were made to wind back police powers deemed too large and able to ensnare the

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 Vagrancy in Australia

‘respectable’, temporarily, unemployed. Police, too, varied in their opinions of who should
be subject to such laws. And the laws themselves underwent changes as different emphases
were highlighted and their propensity to be applied altered according to particular historical
circumstance.46 As David Dixon has argued, ‘the enormous discretion which is vested in
police to operate this system on the streets is bounded as much, or as little, by the prevailing
ethos as by the “requirements of law” ’.47
In contrast to Davies, Dean Wilson provides a different perspective with which to view
the policing of the poor. At the heart of Wilson’s research lies the question of police altruism
in dealing with destitution. He argues that historians such as Davies have too heavily
discounted the role that police played in assisting the poor. Wilson’s research highlights
the ‘ambiguities’ in police practice, where ‘benevolent practices coexisted with harsh
treatment for “loafers” and those considered “undeserving”.’ For Wilson, ‘policing of the
“vagrant” involved coercion, but an equally important police function was facilitating the
survival of the destitute.’48
This argument has resonance with the broader project of Victorian virtues discussed by
Gertrude Himmelfarb.49 While there is substance to these arguments, studies such as those
by Jan Ryan demonstrate the illegitimacy of some (though perhaps not all) vagrancy convic-
tions. To borrow from Edward Thompson, though these are ‘useful qualifications’, they do
not alter the bigger picture that these laws were coercive mechanisms of questionable
legality.50 Wilson’s work does, however, provide an important reminder of how the laws of
vagrancy worked in practice. Though vagrancy provisions are often described as mechanisms
of social engineering, they are essentially discretionary powers reliant on their enforcement
by police and magistrates. While some individual police may well have taken benign attitudes
to the poor, our knowledge of other cases suggests otherwise. This is suggestive of an uneven
but hegemonic pulse that regulates perceptions of difference in the Australian population.
This hegemonic pulse is strengthened when looking at cases involving supposed racial
degeneration and female promiscuity at the height of the White Australia Policy. One of
the most controversial involved the deportation of Sonny Clay’s Colored Idea jazz band in
1928. The Los Angeles musicians playing at Melbourne’s Tivoli theatre created a scandal
when it became apparent that they were socialising with local White women. Encouraged
by the Truth newspaper, police raided the men’s flat and arrested the women on charges of
vagrancy. Though the prosecutions were unsuccessful, it is a reminder of the capricious
nature of these laws.51 Despite having markedly different legal sanctions against interracial
relationships than the United States, vagrancy statutes nonetheless enabled Australian author-
ities to ‘police racial boundaries’.52
While the problems of vagrancy peaked in Britain in the lead up to the First World War,53
rates of conviction indicate that this was not replicated in Australia. Befitting the dichotomy
of deserving and undeserving poor, the laws of vagrancy were strengthened rather than
weakened following the federation of the colonies in 1901 and the subsequent introduction
of welfare policies such as the aged pension.54 Vorspan has argued that Britain too would
have gone down the path of increased protection for the ‘blameless’ poor and increased
punishment for the ‘idle’ poor had it not ‘been preoccupied with more pressing matters in
the years before World War I’.55
In 1908, the NSW government changed its provisions against antisocial activities to
include a category of ‘offensive behaviour’. A vague and imprecise offence, it became one
of the most used categories under the provisions.56 Mark Finnane argued that this change
‘made the police officer alone the arbiter of what constituted indecent language or offensive
behaviour’.57 In its first year of operation over 41 000 ‘charges of offences against good
order’, including vagrancy, drunkenness, offensive language and behaviour were laid in the

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Vagrancy in Australia

state of NSW alone.58 Local histories and biographical studies59 reveal patterns of arrest by
police of those same groups identified by Davies – ‘the criminal, the poor, the weak, the
suspected and the simply annoying’.60 Finnane’s examination of the police harassment of
William James Chidley, an eccentric who advocated gentler sexual relations between men
and women, and who was charged with over 20 offences mostly for ‘indecent language or
offensive behaviour’, provides a case in point.61
The mass unemployment and associated homelessness brought about by the Great Depres-
sion of the 1930s provoked ambiguous reactions. On the one hand, sympathetic responses
were forthcoming; on the other, we know from the research that police frequently used
vagrancy laws to ensure non-resident unemployed ‘kept moving’.62 As David Jones noted
of the British statute, the flexibility of these laws in adapting to specific cultural contexts is
striking. This was also evident in the sporadic way that these laws were deployed against
protesters,63 as a convenient weapon to criminalise homosexuality, particularly during the
homophobic atmosphere of the 1950s,64 and to institutionalise the mentally ill.
In 1967, A. A. Bartholomew, the chief psychiatrist at Pentridge Prison in Victoria, under-
took a study on men entering the prison on charges of ‘insufficient means’. He found that
90% of the men suffered some kind of mental illness.65 Buckley’s work also shows that by
the mid-1960s, vagrancy laws were used against those who simply offended the system:
students in the counterculture, the unemployed and prostitutes.66 That is not to suggest that
there were no legitimate targets within the vagrancy provisions, but their discretionary
element and reversal of the onus of proof were antithetical to a democratic society based
on the rule of law and the presumption of innocence.
One of the more controversial and long-lasting provisions under vagrancy statues was
introduced in NSW in 1929. This was a consorting provision adopted to deal with the panic
over ‘razor gangs’ who had been terrorising people in East Sydney. Borrowing from a
provision in New Zealand’s Police Offences Act of 1901, the law criminalised people who
‘habitually consort with reputed thieves or prostitutes or persons who have no lawful means
of support’.67 While we do not yet know the extent to which these provisions were used
outside of the criminal underworld, the fact that NSW’s vagrancy laws now made the
convicted vagrant ‘friendless’ seems another pointer to the deeply iniquitous nature of these
laws.68 But perhaps the most prominent example of the illegitimacy of vagrancy laws can be
seen in how they were applied to Australian Aborigines.
Australia’s earliest consorting laws, as mentioned earlier, prohibited people from ‘wander-
ing with a black native’. Throughout the literature on poverty, vagrancy and policing, there
are strong parallels in authorities’ perceptions of the non-Indigenous subaltern class and
Australian Aborigines. Twomey has argued that both were viewed as sharing ‘a moral
weakness which prevented them from successfully assimilating into “civilized society” ’.
Sharing membership of a ‘vagrant class’ in the eyes of the colonists meant that both groups
were subject to the ‘arguments that had been advanced to improve Britain’s own working
classes’.69 Likewise, Sandra Berns’ research highlights the similarities between the develop-
ment of industrial schools and threats of criminal law sanctions aimed at the indigent poor
with the removal of Indigenous children from their families. Berns has argued that such
actions were ‘lineal descendants’ of the British conceptions of vice and virtue adopted to suit
the particularities of Australian society.70
There are, however, two important qualifications that need to be stressed. These have
been identified by Chris Cunneen, and are useful when making analogies with, for example,
the treatment of the Romani by the British.71 First, the Indigenous population was an ‘obstacle’
to the state in seizing land, and second, the categorisation of Australian Aborigines as a distinct,
primitive and dying ‘race’ engendered a deeper and more complex police surveillance which

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 Vagrancy in Australia

embodied both ‘protection’ and persecution.72 While the ambiguities in the second of these are
shared, albeit not as sharply, by the poor more generally, their effect in terms of the application
of vagrancy laws has had profound consequences. Peggy Brock’s work highlights how these
tensions played out in practice. Her research demonstrates that South Australia’s public nuisance
laws were used against the Indigenous population in the late 19th century, but were incremen-
tally replaced by ‘protective’ legislation, which controlled ‘Aboriginal movements’ and behav-
iour in the early 20th.73
This protective legislation, which was employed differently in the various states of Australia,
provided authorities with significant control over Indigenous populations. However, as
segregation gave way to assimilation from the 1950s, public nuisance laws against vagrancy
and public drunkenness were again used to regulate Aborigines in South Australia and
beyond.74 Evidence for this can be found in Elizabeth Eggleston’s superb doctoral work,
published as Fear, Favour or Affection. Eggleston found that discretionary police powers including
vagrancy and public drunkenness were being used by the mid-20th century disproportionally
against Indigenous populations.75 As Cunneen has argued, the over-surveillance of Aboriginal
people and communities is a direct descendant of Australia’s ambiguous colonial legacies.76 The
contemporary implications of these approaches could not be more stark. Of the 99 cases
investigated in the 1987 Royal Commission into Aboriginal Deaths in Custody, nearly half had been
gaoled on a charge of ‘public drunkenness or public disorder’.77
While the use of public drunkenness and indecent behaviour provisions against Indigenous
populations barely raised an eyebrow, ‘insufficient means’ cases did. This apparent contradiction
was a by-product of the separation in the minds of the authorities of ‘full-bloods’ (regarded as
non-citizens) and ‘half-castes’ (regarded as Commonwealth citizens). ‘Full-blood’ Aborigines
were, for the most part, excluded from the idea of vagrancy given the emphasis on Aboriginality
as axiomatically ‘primitive’ and ‘nomadic’. This ‘exclusionary edifice’, John Chesterman and
Brian Galligan argue, was a ‘conscious legislative and administrative creation’,78 with sometimes
contradictory consequences.
This is evident in the overturning of the 1967 vagrancy conviction of a high profile
Indigenous activist, Dexter Daniels. The judge questioned the legitimacy of a ‘Tudor Law’
being applied to an Indigenous man who could clearly live off the land.79 The Daniels’ case
provides a further example of the class-based nature of vagrancy laws. While in this instance
financial assistance to appeal a conviction was provided by supporters, this was rare. By the
mid-1960s, however, law reformers and criminologists in Australia as elsewhere80 had begun
to question the validity of these laws. In more recent years, investigations by Philip Lynch
and Tamara Walsh into the (then) still operating vagrancy laws provided law reformers with
much needed evidence of the iniquities of applying a colonial statute to a modern
population.81
Vagrancy laws are not unique to the former British colonies. But this cursory examination of
the disparate research on vagrancy in Australia suggests that, while similar to the British experi-
ence, Australia’s use of vagrancy laws differed because of its settler colonial status. Unlike Britain
and the United States, there is still very little known about the reach of vagrancy laws as devices
of social engineering in Australia. But these public policies contrast with vagrancy laws. They
are, after all, locally enforced, profoundly personal laws. They therefore have something to tell
us about the degree to which populations share state public and social policies.82
What we do know is that vagrancy laws were used as an extension of the White Australia
Policy, to control Indigenous populations, as punishment for ‘deviant’ sexuality, and as a tool
to remove ‘nuisances’ from communities. They were also used as a ‘protective device’, to
remove children from risk and influence, and to put a roof over an indigent’s head.
Irrespective of intent and outcome, these laws criminalised the poor.83

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Vagrancy in Australia

The list of what we do not know is larger. What percentage of people were charged with
vagrancy but not convicted? How many individuals appealed a conviction of vagrancy? Was
there a consistent approach in the use of law to indicate agreement of what constituted
‘deviant’ behaviour? To what extent did the laws of vagrancy target a different population
in Australia compared with other nations? How distinct is the vagrant, as identified by Gareth
Steadman Jones,84 from the individual convicted of vagrancy? One difficult but possible
method for finding answers to these questions might be through a process of biographical
mapping of those convicted under vagrancy laws. If assessed against national, state and local
political priorities, we might begin to see the lags, contradictions and disagreements between
governments, people and the law.
Responding to Douglas Hay’s Albion’s Fatal Tree: Crime and Society in Eighteenth Century
London, John H. Langbein suggested that ‘the criminal law is simply the wrong place to look
for the active hand of the ruling classes . . . the criminal justice system occupies a place not
much more central than the garbage collection system.’85 And as E. P. Thompson noted,
‘there is a difference between arbitrary power and the rule of law’.86 But the rule of law in
this instance did not protect against the arbitrary power of the magistrates’ courts. The
paradox of law is embodied in the laws of vagrancy. Notwithstanding the subtleties of place,
the varying approaches of the individual policeman, or the idiosyncrasies of particular
magistrates, the capricious and discretionary nature of the laws of vagrancy demonstrate their
value in allowing us to listen to the hegemonic pulse of societies.

Short Biography

Julie Kimber teaches politics at Swinburne University of Technology in Melbourne, Australia.

And is an affiliate researcher with the Democracy and Justice Research Flagship at the
Swinburne Institute for Social Research. Her current research examines the disjuncture
between formal equality in law and localised abuses of power.

Notes
* Correspondence: Faculty of Life and Social Sciences, Swinburne University of Technology, Melbourne, Australia. Email:
JKimber@swin.edu.au
†
I would like to thank Phillip Deery, Peter Love and the referees for their constructive comments on this paper.
1
On the etymology of ‘vagrant’, see W. Sayers, ‘Etymologies’, 40–42.
2
Ward, The Australian Legend, 207–237.
3
On Australia’s complex adoption of British law, see Castles, An Australian.
4
C. Foote, ‘Vagrancy-type law’, 90.
5
Chambliss, ‘A sociological analysis’, 89; Beier, The Problem of the Poor, 3.
6
Beier, ‘A new serfdom’, 39.
7
Beier, The Problem of the Poor, 5.
8
Chambliss, ‘A sociological analysis’, 90-1; Beier, ‘A new serfdom’, 52.
9
Allen, ‘Vagrancy in Mauritius’, 143.
10
Himmelfarb, The De-Moralization, 238 & 242.
11
Chambliss, ‘A sociological analysis’, 93-5; Rose, Rogues and vagabonds, 3; E.A. Ross, ‘Social control’, 513–35.
12
Ocobock, ‘Vagrancy’, 1–34.
13
Ocobock, ‘Vagrancy’, 21; Tinker, A New System. See also Kerber, No Constitutional Right; Stanley, From Bondage to
Contract. A.D. Stanley, ‘Beggars’, 1265–1293; Montgomery, ‘Wage Labor’, 6–27; Ringenbach, Tramps and reformers.
14
Allen, ‘Vagrancy in Mauritius’, 143.
15
Arnold, ‘Vagrant India’, 122, 127–8.
16
Byrne, Criminal Law, 156, 163. See also Dixon, Law in Policing, 59; S. Petrow, ‘Policing’, 351–395; Petrow, ‘After
Arthur’, 1–25.

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 Vagrancy in Australia
17
P. Byrne, ‘Freedom’, 51–56.
18
See, for example, Ward, Earl Grey, 205.
19
G. Curry, ‘Bundle of Vague’, 523–536.
20
Jones, Crime, 206-7. See M. Roberts, ‘Public and Private’, 289.
21
An accessible genealogy of Vagrancy laws in Australia can be found in The Law Reform Commission of Western
Australia, Police Act Offences Report.
22
Bignold, The Police Offences Acts, 116.
23
Molesworth, ‘Transportation to Van Diemen’s Land’.
24
J. Turner, ‘Newcastle Miners’, 30; York, Empire and Race, 23.
25
B. Dickey, ‘Why were there’, 111–133.
26
Davidson, The Invisible State, 105. See Quinlan, ‘Australia’, 219–50.
27
R. Vorspan, ‘Vagrancy’, 79–80. On poverty and charity in Australia see, for example: Piper, ‘Beyond the Convict
System’; Hyslop, ‘Social reform movement’; Hetherington, Paupers, Poor Relief; Kennedy, ‘Charity and Ideology’;
Conley, ‘The “Undeserving”’; A. O’Brien, ‘Pauperism Revisited’, 212–229; Cage, Poverty Abounding.
28
Specific offences listed under ‘rogue and vagabond’ or ‘incorrigible rogue’ are outside of the scope of this survey.
A. Steel, ‘Consorting’, 581; Campbell and Whitmore, Freedom in Australia, 135.
29
See Garton, ‘Mad or Bad’, 95. For Britain see R. Vorspan, ‘Vagrancy’.
30
See, for example, Swain, ‘Victorian charity’, 329–30.
31
C. Twomey, ‘Courting men’, 231–246.
32
J. Damousi, ‘Depravity’, 34.
33
M. Sturma, ‘Eye of the Beholder’, 3–4.
34
See M. Finanne and S. Garton, ‘The Work of Policing’, 56. On prostitution see, for example: Allen, Sex and Secrets;
Arnot, ‘The Oldest Profession’, 42–62; Buckley, Vagrancy and Prostitution; Daniels, So Much Hard Work; S. Davies,
‘Working their way’, 50–63; Frances, Selling Sex; H. Golder and J. Allen, ‘Prostitution’, 17–25; C. McConville, ‘The
Location’, 86–97; Perkins, ‘Street Prostitution’; Perkins et al. Sex Work; Perkins, Working girls.
35
This is of course problematic. Many women transported to Australia often had complex criminal records. Oxley,
Convict Maids. See also J. Williams, ‘Irish Female Convicts’, 1–17; B. Godfrey and D. J. Cox, ‘The Last Fleet’, 253.
See also Damousi, Depraved; Daniels, Convict Women; Reid, ‘Contumacious’, 106–23.
36
On the Australian historiographical debate about a ‘transplanted criminal class’ see B. Dyster, ‘Convicts’, 74; B.
Dyster, ‘Transported Workers’, 84–92; Nicholas and Shergold, ‘A labour aristocracy’, 98–110; G. Wood, ‘Convicts’,
187; Fitzpatrick, British Imperialism and Australia; M. Clark, ‘The Origins’, 314–27; Robson, The Convict Settlers; Shaw,
Convicts; S. Garton, ‘Convict Origins’, 66–82; Fletcher, Colonial Australia; M.B Schedvin and C.B. Schedvin, ‘The
nomadic tribes’, 254–76; Hirst, Convict Society; McQueen, A New Britannia; D. Neal, ‘Free Society’, 497–518; J. Hirst,
‘Or None of the Above’, 519–24.
37
C. Twomey, ‘Gender, Welfare’, 169–186; Twomey, ‘Without’. See also S. Berns, ‘Returning’, 24–52.
38
S. Berns, ‘Regulating’, 1–38; G. Scrivener, ‘Parental imposition’, 23–38. See also R. van Krieken, ‘Children and the
State’, 33–53; P. Quinn ‘Unenlightened Efficiency’.
39
G. Scrivener, ‘Parental imposition’, 36.
40
On the introduction of laws against prostitution see Daniels, So Much Hard Work.
41
See H. Mayhew and B. Hemyng ‘The prostitution class’, 35–6 cited in M. Sturma, ‘Eye of the Beholder’, 6–8.
42
See, for example, J. Martens, ‘Polygamy’, 24–45; A.L. Stoler, ‘Making Empire’, 1548–1425.
43
J. Ryan, ‘She lives with a Chinaman’, 149–159. See also P. Griffiths, ‘Containing’, 69–88.
44
Jones, Crime, 206–7; see also A. Winter, ‘“Vagrancy” as an Adaptive Strategy’, 249-277.
45
Davies, ‘Vagrancy’. See also Buckley, Offensive and Obscene, 237–52; T. Walsh, ‘Waltzing Matilda’, 75–95.
46
Davies, ‘Vagrancy’, 451–3.
47
Dixon, Law in Policing, 68–9.
48
D. Wilson, ‘Policing Poverty’, 101–2. Such ambiguities have been illuminated elsewhere. See M. Finnane, ‘Police
Rules’, 95–108; Garton, Out of Work; see also Davies, ‘“Ragged”’, 141–165.
49
Himmelfarb, The De-Moralization.
50
Thompson was writing about the historiography of the enclosure movement. Thompson, The Making, 238.
51
R. Hall, ‘White Australia’s Darkest Days’, 17.
52
Maillard et al. Loving v. Virginia, 1.
53
R. Vorspan, ‘Vagrancy’, 81.
54
Buckley, Offensive and Obscene, 245–7; O’Malley, ‘The place of crime’, 42; J. Kimber, ‘A nuisance’, 275–293. On
these changes in welfare see Piper, ‘Beyond the Convict System’, 297–8, 331; A. Hyslop, ‘Social reform movement’;
Hetherington, Paupers, Poor Relief.
55
R. Vorspan, ‘Vagrancy’, 81. On earlier proposals see M.J. Rozbicki, ‘To Save Them’, 29–50.
56
Buckley, Offensive and Obscene, 245–7.
57
Finnane, ‘Sexuality’, 195.

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Vagrancy in Australia
58
Buckley, Offensive and Obscene, 247–9.
59
J. Kimber, ‘A Nuisance’, 275–93 D. Taylor, ‘Melbourne, Middlesbrough and Morality’, 15-38.
60
Davies, ‘Vagrancy’. See also Buckley, Offensive and Obscene, 237–52; T. Walsh, ‘Waltzing Matilda’, 75–95.
61
Finnane, ‘Sexuality’, 195.
62
G. Spenceley, ‘Broadmeadows’, 58; Costar, ‘Labor, Politics’, 283; Huelin, Keep Moving.
63
V. Burgmann, ‘Contesting’, 89–101.
64
Willett, ‘From Vice’, 124–5.
65
A.A. Bartholomew and G. Hunter, ‘Insufficient Means’, 19.
66
Buckley, Offensive and Obscene.
67
A. Steel, ‘Consorting’, 581.
68
Buckley, Offensive and Obscene, 250.
69
C. Twomey, ‘Vagrancy, Indolence’, 101. Also Chesterman et al. Citizens Without Rights, 11–30.
70
P. Berns, ‘Regulating’, 32. See also Brook et al. Parramatta; P. Grimshaw, ‘Colonising Motherhood’, 329–346;
A. O’Brien, ‘Creating’, 6–30; M. Horsburgh, ‘The Apprenticing of Dependent Children’, 33-54.
71
See for example, Mayall, English Gypsies.
72
Cunneen, Conflict, Politics, 78.
73
P. Brock, ‘Protecting colonial interests’, 120–129.
74
P. Brock, ‘Protecting colonial interests’, 120–129. On public drunkenness and reform policies more generally see
M. Finnane, ‘The Politics of Police Powers’; S. Garton, ‘Once a Drunkard’, 38–53; M. McKernan, ’An Incident’,
70–85; S. Petrow, ’Creating’, 175–194; M. Sturma, ‘Police and Drunkards’, 48–56.
75
Eggleston, Fear, Favour. See also Rowley, A Matter of Justice.
76
Cunneen, Conflict, Politics.
77
Cunneen, Conflict, Politics, 260. See also H. Wootten, ‘Aborigines and police’, 265–301.
78
Chesterman et al. Citizens Without Rights, 120.
79
J. Kimber, ‘A right to be’, 167–179. For examples of different ways vagrancy laws were against Australian Aborigines
see H. Anderson, ‘Lost in the Streets’, 22–37; Bierens, ‘The Captain’s Lady’; J. Horton, ‘The case’, 1–18.
80
On the Miranda judgement and vagrancy laws in the USA see R. Yeamans, ‘Constitutional Attacks’, 782–793.
81
P. Lynch, ‘Understanding and responding’, 75–95; Walsh, Homelessness and the Law; T. Walsh, Overruling the
Underclass? ; also Sackville, Homeless People and the Law.
82
Compare Ward, The Australian Legend, 144 with S. Wilson, ‘Police Work’, 11 & 18.
83
Ward, The Australian Legend, 144.
84
Jones, Outcast London, 88–90.
85
J. H. Langbein, ‘Albion’s Fatal Flaws’, 119.
86
Thompson, Whigs and Hunters, 266.

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