686. Aboriginal Views. An essential pre-requisite to any consideration of justice mechanisms for Aboriginal communities is to ensure that the wider community is not simply foisting its own perception of ‘the problems’, and its own solutions, upon Aborigines affected. It is necessary to be clear about the needs and purposes that machinery is intended to meet, and to be reasonably confident that the machinery is sought by those to whom it will apply. In fact the Commission has met with a wide range of responses and views on these central issues.
Many Aboriginal communities would draw a distinction between those matters which are for the general legal system to deal with and those which they consider fall within their jurisdiction or responsibility:
The Pitjantjatjara are determined to keep their customary methods for dealing with disputes in the traditional mode, and concede that ‘serious’ offences should be dealt with by the conventional South Australian legal system.
There is however an area of uncertainty between the two, and it is here that many conflicts between two competing legal systems arise. Some groups will deal with matters even though they know the police are also involved. Others may be reluctant to become involved in such cases. Many seek further powers to deal with their own problems but accept that this needs to be sanctioned by the general legal system. This was clearly expressed in a submission to the Commission by the Council President on behalf of the Peppimenarti Community (NT):
As a general principle, we want Aboriginal law to rule on Aboriginal land, and to some extent to rule Aboriginals outside Aboriginal land. For example, we would like to have the power to take our own people away from towns and hotels (if they are getting drunk or into trouble) back to our own community. Or if a young fellow steals a car, or makes trouble, we want to be able to take them back to our own system of law. We want to keep traditional punishments … We feel that gaol sentences in white man’s system do not solve many problems …. If a marriage is illegal by our law (e.g. too close relatives) we want the power to stop or annul that marriage … Illegal marriages of our people in white man’s churches and towns, has caused deep trouble in our system of families and relatives. We MUST STOP this before more damage is done. Motor registration, insurance, drivers licences, worker’s compensation etc. we think should all stay the same as they are.
Implicit in these statements is a request for the two systems to work together, with the Aboriginal voice being heard, and responded to, by the general legal system on issues of particular concern.
While Aboriginal communities in general accept the authority and functions of the police and the courts, many do not consider they should intrude into all matters even if an offence may have been committed against Australian law. It is the nature of and background to an offence that may be of paramount importance. The fact that there has been a fight and some persons are injured may be regarded as a just result and resolve the dispute. The police may take a different view. Some communities may seek the exclusive right to deal with certain minor law and order problems. Others would like some input into the decision-making process so that they could call in the police when they wanted assistance and also have some say during the court process:
We feel it is fair that while people living on or visiting Aboriginal lands or settlements should be subject to Aboriginal laws and punishments if they make trouble. However, in all cases, we want the option to send an offender through the white man’s law system. There are no white police on our settlement. We do not need them here all the time. We only want the option to call them in when we think it necessary.
Many communities already exercise such powers on a de facto basis. Whether they can or should be formalised to any greater extent is another question.
Most Aboriginal communities have modified the punishments given to offenders because of the possibility of the punisher being charged for committing an offence under the general legal system. Some regret that such change has taken place and seek specific sanction for certain physical punishments:
I think it [spearing] is the only way to stop young men or any other person of any age … In the olden days that used to check the trouble … but in this day and age they think ‘well white fellow laws say you can’t spear me, you can’t hurt me, so if I want to sue you I can sue you’. That is the reason why we want it to be recognised as such and the elders to hand out punishment if they think it is needful.
This view was presented to the Commission on several occasions during its Public Hearings.
Some Aboriginal communities rely on the ‘old people’ or ‘tribal elders’ to resolve disputes. There are many different ways in which these operate.
We are quite satisfied with our ‘court’ system — which is a meeting of elders. No punishment is meted out without discussion and the offender is given the opportunity to defend himself.