678. Background to the Terms of Reference. As well as requiring the Commission to consider whether and in what manner Aboriginal customary laws and practices should be applied to Aborigines in civil or criminal cases before the ordinary courts, the Commission’s Terms of Reference require it to consider:
to what extent Aboriginal communities should have the power to apply their customary law and practices in the punishment and rehabilitation of Aborigines.
This question was to a large extent impelled by representations made by the Yirrkala Community Council to the Council for Aboriginal Affairs in 1975. Aboriginal leaders from Ngukurr, Groote Eylandt and Yirrkala appealed to the Council for assistance on how to reduce the problems resulting from the easy availability of alcohol in their communities. The Council agreed with the proposals made by the Aboriginal leaders, which were aimed to improve conditions which were largely beyond their control. Their Report stated:
The Leadership Council makes some very practical suggestions for (a) more responsible conduct by and supervision of supplies of liquor, and (b) a system of restraint, control and, if necessary, punishment of drunken offenders by Aboriginal authorities backed by European law. The Council for Aboriginal Affairs was impressed by the suggestions and, in general, commends them. In brief, the leaders advocate four measures.
1. the appointment of uniformed Aboriginal orderlies with power to arrest and confine drunken Aborigines until sober or charged with an offence;
2. a working agreement with the Northern Territory Police that, when practicable the arrest, and in all circumstances the custody of arrested Aborigines, will be matters for the Aboriginal orderlies;
3. an agreement with the appropriate Northern Territory authorities that charges against Aborigines will be heard by a court sitting at Yirrkala, with Aborigines assisting the judge or magistrate as assessors or as Justices of the Peace, and always with legal representation of the persons charged;
4. the recognition by Australian law of the legal authority of the Council of Leadership and the orderlies.
Requests from Yirrkala, and from other communities looking for ways to solve local order problems were thus an initial catalyst for the Reference:
This reference was given to the Commission in response to requests by many Aboriginal communities in the north for help in handling law and order problems in their communities and for recognition of the problems they face in adapting their traditional forms of social control to their contemporary situation. I believe that this kind of initiative by Aboriginal people typifies the quite revolutionary changes that have occurred in Aboriginal life in the past decade.
679. ‘Law and Order’ in Aboriginal Communities. In addressing the second aspect of the Terms of Reference, broader questions of law and order in Aboriginal communities arise, including the ways in which different communities deal with, or would like to deal with law and order problems. An Aborigine may commit an offence against the general criminal law which may be categorised as ‘non-customary’ but which may be very disruptive of community life, with the result that members of his community would like some say in the way in which the offender is dealt with. Some offences may breach both the general criminal law and Aboriginal customary laws. Or an ‘offence’ may be entirely customary, in which case communities may consider it is within their jurisdiction to deal with it — a view that may not be shared by the general legal authorities. Some Aboriginal communities have sought Commonwealth or State legislation to give them power to make rules for the community and to deal with persons who break such rules, while others have sought the enactment of customary laws enforceable in the general legal system.
680. Outline of this Part. While the Commission’s Terms of Reference refer only to the possibility of ‘Aboriginal communities being given the power to apply their customary laws and practices’, what underlies this aspect of the Terms of Reference is the broader question of autonomy for Aboriginal communities in law and order matters. Accordingly, this Part of the Report will consider a broad spectrum of issues and proposals. This Chapter will consider the general principles underlying justice mechanisms for Aboriginal communities. For convenience, the term ‘justice mechanism’ has been adopted in this Report to cover generally the various forms or structures of dispute resolution which operate or could operate within Aboriginal groups. Chapters 28 and 29 describe existing dispute-resolving mechanisms, in Aboriginal communities. Chapter 30 considers the relevant overseas experience. Chapter 31 considers what mechanisms may be applied in Australia, and ways of implementing them in accordance with the wishes of particular Aboriginal communities concerned. Finally, Chapter 32 discusses the role of the police, and the policing of Aboriginal communities by means other than the regular police force.