Justice Mechanisms in Aboriginal Communities: Needs, Problems and Responses

683. Previous Discussions of these Questions. Apart from official discussions, the prospects for Aboriginal community justice mechanisms in some form have been discussed by a number of authors, especially over the past ten years. Of earlier discussions the most important were by AP Elkin,[893] who strongly supported the establishment of properly constituted native courts, at least on an experimental basis[894] and Justice Kriewaldt,[895] who did not favour the establishment of special courts in minor or major, cases, but did make recommendations for:

  • exclusion of special (lay) magistrates and justices of the peace in cases involving Aborigines;

  • assessors to sit with the Supreme Court judge in appropriate cases (there was then trial by jury in only a limited class of cases in the Northern Territory);

  • the Supreme Court to sit if possible close to the ‘scene of the crime’.[896]

The more important recent discussions, include the following:

  • Misner (1974).[897] Following the work done for three Reports, (discussed in para 659) prepared for the Commonwealth minister for the Northern Territory[898] Misner studied the possibilities for local Aboriginal justice machinery. His private study was both more detailed and markedly more pessimistic. In view of the limits of political acceptability within the ‘white community’, the ‘great discrepancies among Aboriginal communities as to what they want and could handle’, as well as the logistical and practical problems[899] his view was that:

there is grave doubt whether, except in cases where only a minimal jurisdiction is given over to an Aboriginal Court or where only police functions but no judicial function are performed by Aboriginals, any new approach to the problem of justice on Aboriginal settlements is possible.[900]

And, after noting difficulties posed by the requirements of minimum standards of justice in the International Covenant on Civil and Political Rights of 1966 [901] he concluded:

The problem is clear: due to logistical and cross-culture problems in the Northern Territory, the criminal justice system is an ineffective and sometimes oppressive, tool in dealing with Aboriginals. One possible solution to these problems is the establishment of tribal courts and tribal police. It would appear, however, that for many separate reasons the best that one could hope for is the adoption of basically ‘white courts’ onto the settlements which would be staffed by Aboriginals. It should not be assumed that all or any Aboriginal settlements would want to accept or be able to accept this responsibility.[902]

  • Eggleston (1976).[903] As part of a wider study, Elizabeth Eggleston considered the possibility of special Aboriginal courts as a form of recognition of Aboriginal traditional law and culture. Her conclusion, though not detailed, was strongly supportive of the idea:

I strongly believe that attempts should be made to pass over more responsibility to Aborigines in relation to the whole legal process, whether tribal law is involved or not. For this reason I favour the creation of special courts staffed by Aborigines. [A] United Nations study of Equality in the Administration of Justice … recognises that separate systems of courts for specific ethnic groups may be ‘concessions to traditional tribal patterns or types of temporary legitimate protection of minorities’ and thus need not necessarily be regarded as discriminatory (though others may be discriminatory in effect). This non-discriminatory ideal should be regarded as the policy underlying any creation of special courts for Aborigines and specific provisions should be tested by reference to it. Aboriginal communities should be consulted before detailed legislation is framed. Intensive study of overseas experience with plural systems of law is also needed, so that the best model may be adopted and the most serious problems be avoided … Even if authority over law and order is transferred to Aboriginal communities it is probable that their powers would be limited. Their jurisdiction might only extend to minor crimes leaving homicides to be dealt with by the ordinary courts. The ordinary courts should then be encouraged to give more recognition to tribal law and better means of finding out the actual beliefs of the Aboriginal people than at present exist should be devised. The official recognition of tribal law, as proposed, would not only solve some practical difficulties but would be tangible recognition by white society of the value of Aboriginal culture.[904]

Earlier she had suggested, as one possibility, that legislation provide for Aboriginal courts to be established as required, and

that such courts should only be staffed by persons with certain qualifications and that procedure should be different from that of ordinary courts. There would be no practical difficulty about such requirements. Practical difficulties would arise only if the requirements were unreasonable, including matters like separate court buildings and special staff who had no other employment.[905]

  • Daunton-Fear and Freiberg (1977).[906] As part of a larger review of Aborigines and Australian law, Daunton-Fear and Freiberg discussed the possibility of ‘tribal courts’ as one approach to the problems. Such a system, in their view, had many difficulties:

It would be unrealistic to paint a sanguine view of the possibility of indigenous courts, for the difficulties seem overwhelming. Foremost among these is the question of whether in fact such a system would make use of the existing practices and traditions of the people or whether this scheme is merely another imposition created by an idealised perception of Aborigines on the part of the Europeans.[907]

On the other hand the example of the PNG Village Courts (then just introduced) was seen helpful as: ‘it would seem that such a system of limited jurisdiction maybe both acceptable and suitable in Australia and should be given careful consideration’.[908] They concluded:

This litany of problems of tribal courts is indeed depressing but should not be overwhelming. It is submitted that despite these difficulties the idea of indigenous courts has much merit and that rather than being dispirited by experience elsewhere, Australia should learn from the errors and develop a system of courts based on Australian needs in the latter half of the twentieth century.[909]

  • Keon-Cohen (1981).[910] In a wide-ranging comparison of ‘native justice’ in the three jurisdictions, Keon-Cohen reached only ‘very tentative conclusions’.[911] He stressed the special character of the Australian situation, as well as variability within Australia:

differing needs of different indigenous communities may require a range of jurisdictions to meet the requirements of native justice. Thus, isolated traditional Aboriginal communities may require a customary law jurisdiction, while fringe-dwelling acculturated communities may require a local government by-law scheme. This question of variability, both as to indigenous legal needs and realistic federal government response, is a central question facing Australian reformers.[912]

There were, in his view, many other difficulties in the way of any ‘separate Aboriginal customary law jurisdiction’ in Australia: these included ‘complexity, uncertainty, confusion, and resulting cost’[913] and the political reality that Australian governments are no more likely than American ones ‘to vest [substantial] penalty powers in indigenous communities’.[914] While accepting that ‘no universal justice mechanism panacea … can be offered’,[915] he suggested that increasing governmental control, whether over existing or new justice systems, not accompanied by a more basic system of separate self-government, would be mistaken.[916] In his view:

amongst Australia’s traditional Aboriginals … native justice is more likely to be achieved though maximising the use of existing customary law ways, and encouraging their development.[917]

The inference is that such encouragement should be indirect, rather than through outside involvement in the establishment of formal machinery, although no specific measures were suggested.

684. No Solutions Proposed. Discussion of these issues in the literature so far gives a much better guide to the difficulties in the way of the establishment or support of Aboriginal community justice mechanisms than it does to the possibilities and potential solutions. The question is whether various responses, legal and administrative, to the problem suggest possibilities for further action.

685. Legal and Administrative Responses. Partly as a result of Aboriginal views and demands, and partly out of growing dissatisfaction with the existing summary criminal process as it involves Aborigines, a number of legal and administrative responses have been made or attempted, although in many cases these have taken the form of calls for further study or examination of the issues. Important examples in more recent times include the following:[918]

  • Hawkins and Misner (1973-4). In three reports commissioned by the Commonwealth Minister for the Northern Territory, GJ Hawkins and RL Misner made a series of recommendations for changes in the criminal justice system in the Northern Territory.[919] Two of these reports discussed problems of the administration of justice in Aboriginal communities. The First Report stated only that:

Punishment, to be effective, must be prompt, fair and in response to acts which the community deems to be offensive. Considering the vast distances between outlying districts and the courts and also considering the different cultural patterns between a settlement and an urban centre, the distribution of justice in the Northern Territory must be decentralised so that local groups will be better able to deal with their own affairs. Elected councils on the settlements and missions should be able to deal with the ‘street offences’ now contained in the social welfare regulations. All persons on the settlement or mission, European or Aboriginal, would be subject to the council’s jurisdiction, An appeal should be allowed from the council to the magistrate and for this purpose an additional magistrate will be necessary in order to visit the settlements on a regular basis. A further study would be necessary in order to outline appropriate procedures for conducting and recording the council’s proceedings. Also it must be determined at a later time whether each settlement should have a lock-up and a person to serve as a gaoler. It is envisioned that punishment may take other forms than traditional imprisonment, e.g. community work projects.[920]

These issues were discussed in greater detail in the Third Report.[921] This did not attempt to make any specific or detailed proposals, other than that the matter be subject to an ‘immediate review by an inter-disciplinary body which would conduct an extensive full-time inquiry into this extremely complex issue’.[922] After discussing jurisdictional and other problems and some of the training and other support that would be required for any effective scheme, the Report concluded:

It would be naive to assume that the tribal justice programs can be put into effect overnight. In fact any hastily constructed program may be harmful. But this should not be used as an excuse to delay the search for answers. A highly qualified inter-disciplinary team should be immediately formed to seek solutions to the problem of justice on Aboriginal settlements … It should not be assumed that a system of tribal courts is necessarily practical, beneficial or desirable. The real challenge is to begin seriously considering the possibility.[923]

  • Commission of Inquiry into Poverty, Second Main Report, Law and Poverty in Australia (1975).[924] Among many issues, the Second Main Report of the Poverty Commission examined the law as it affects disadvantaged people, including Aborigines. Referring to existing (mostly discretionary) approaches to modifying the law as it applies to ‘tribal Aboriginals’, Commissioner Sackville concluded:

While these developments are commendable, they are piecemeal in character, concentrating on specific difficulties rather than the overall effect of the imposition of European law on tribal Aboriginals. In our view the basic problems can be attacked only if an attempt is made to restore and maintain the traditional authority of tribal Aboriginals so that, to the maximum extent possible, European law is applied in tribal areas only at the request of the tribal community.[925]

After giving as examples the Papua New Guinea Village Courts and the former Western Australian Courts of Native Affairs[926] the Report pointed out that:

One major difficulty in implementing our proposal in Australia lies in ascertaining the source of legitimate tribal authority. It is not fully clear who has authority over whom … nor whether such authority as exists is legitimate in all circumstances. It has been suggested, for example, that those in authority do not have legitimate power unless they are on their own tribal lands. Moreover, it is not certain when the traditional sources of authority would regard themselves as obliged to refer offenders to the ordinary courts. These issues will require intensive discussion with tribal groups in order to formulate proposals for restoration of tribal authority. Other difficulties arise, including the precise definition of the jurisdiction to be conferred on Aboriginal communities and the formulation of principles to govern problems of ‘conflicts of laws’. We think that these questions should be investigated as soon as possible.[927]

  • Aboriginal Communities Act 1979 (WA). Action was not confined to the federal level. In 1979, following a report by Magistrate T Syddall, the Western Australian Government introduced a scheme for Aboriginal justices of the peace to sit with the magistrate in specific remote communities. The scheme is described in detail in Chapter 29.[928]

  • South Australian Committee on Aboriginal Customary Law (1979). A South Australian Committee on Aboriginal Customary Law was appointed by the South Australian Attorney-General in 1978 to inquire into and report on the recognition of Aboriginal Tribal Law and the administration of justice in Aboriginal communities in the North-West and at Yalata. The Committee’s most recent Report, on Children and Authority in the North West (1984), addressed particularly the problems of petrol sniffing by children, but it also contained recommendations relating to alcohol, general law enforcement, police aides and the role of the judicial system. The Report did not specifically deal with the question of community courts.[929] But it did recommend more frequent and longer Magisterial visits to the NorthWest. It recommended against the extension of police services or the introduction of a system of Aboriginal police aides.[930]

  • House of Representatives Standing Committee on Aboriginal Affairs, Report on Aboriginal Legal Aid (1980).[931] As part of its Report the Standing Committee discussed a number of issues relevant to the Aboriginal Customary Law Reference, including Aboriginal police aides,[932] the problem of representation of community views to sentencing courts[933] and the recognition of Aboriginal customary laws.[934] The Committee canvassed the various possibilities for, and difficulties with, recognition without attempting to reach any definite conclusion. Noting that the issues were being examined by this Commission, the Standing Committee commented that:

If Aboriginal customary law is applied in cases involving offences against Aboriginal communities which are also offences against Australian law, the division of jurisdiction between the two systems will be significant. At the present time there is no recognition of traditional punishment as a valid punishment to be applied by existing courts dealing with criminal charges against Aboriginals. Australian courts cannot impose penalties which are repugnant to natural justice or morality or which are in conflict with any other laws … By allowing Aboriginal communities to apply customary law, there is a danger of subjecting an Aboriginal offender to the tyranny of the group. There is the problem that, in many respects, the adoption of a policy of non-interference by legal authorities in communities regulated by customary law and practices carries with it an abrogation of responsibility for the protection of the rights of the individual.[935]

In their view these factors:

would appear to preclude Australian courts from applying tribal sanctions in the punishment of serious offenders and probably confine Aboriginal communities to dealing with minor offences in the summary jurisdiction.[936]

  • House of Representatives Standing Committee on Aboriginal Affairs, Report on Strategies to Help to Overcome the Problems of Aboriginal Town Camps (1982).[937] That these difficulties did not, in the Standing Committee’s view, preclude the adoption of some form of justice machinery even in less-traditional contexts, was made clear in its Report on Aboriginal Town Camps. The Report noted this Commission’s inquiry, and commented:

One aspect of the inquiry is an investigation into the possible operation of community justice systems in Aboriginal communities. The Committee is aware of the difficulties of such systems operating in town camping communities where there is close contact with the non-Aboriginal community and where the operation of customary law is not as strong as in traditional communities. The concepts being developed by the Commission of a conciliation panel to resolve internal disputes and the operation of internal policing in discrete town camping communities should be fully investigated. Such concepts, if introduced, would recognise and reinforce existing structures in town camps for resolving disputes and could have a significant impact in reducing the level of crime in the communities.[938]

The Standing Committee accordingly recommended that the Commission ‘fully investigate the operation of community justice systems in town camping communities’.[939]

  • Northern Territory: Justice (Courts) Project in Aboriginal Communities (1983). Growing out of earlier informal experiments and statements[940] the Northern Territory Department of Law introduced a ‘Justice (Courts) Project in Aboriginal Communities’, on a trial basis. The scheme involves a magistrate and an anthropologist working together. It is planned to be introduced in perhaps 3 or 4 communities but is operating in only one community, Galiwin’ku, at present. The proposal is discussed in Chapter 31.[941]

  • The Groote Eylandt Aboriginal Task Force Report (1985). The Task Force with an all-Aboriginal membership reported to the Commonwealth and Northern Territory Governments on ‘the possibility of establishing an accepted mechanism to reduce high criminal activity within the Groote Eylandt Community’. The Report stated:

The Task Force takes the view that the Aboriginal communities on Groote Eylandt are not seeking separate and independent justice mechanisms … [W]hat they are seeking is a better working relationship with all agencies of the criminal justice system with some modifications of the rules and procedures.[942]

To this end the Report recommended greater community involvement in the court process, the appointment of an Aboriginal justice of the peace, the appointment of police aides, the introduction of, a community service order program and that the Aboriginal Community Justice Program operating at Galiwin’ku be applied to Groote Eylandt. It also recommended that:

The Australian Law Reform Commission be requested to undertake an investigation into the incorporation of Groote Eylandt Customary Laws within the judicial system presently operating in Groote Eylandt in close consultation with the leaders of the Aboriginal Communities.[943]