Aboriginal Courts in Western Australia

747. The Syddall Inquiry. The system of ‘Aboriginal courts’ in Western Australia[1071] was introduced by the Aboriginal Communities Act 1979 (WA). It stemmed largely from the efforts of Mr Terry Syddall MBE who for varying periods, commencing in 1970, worked as a stipendiary magistrate in the North West of the State. He had adopted a practice of inviting local elders to sit with him in the courtroom while Aboriginal defendants were being dealt with, and of discussing possible penalties with them. In 1977 he was asked by the Western Australian Government to conduct an inquiry into aspects of Aboriginal law and to formulate plans to improve the understanding of the law by Aboriginal communities. The inquiry was to be limited to the Kimberley area, on the basis that any decisions made following it could if appropriate be later extended to other parts of the State later. As a result a system of ‘Aboriginal courts’ in Western Australia was introduced in an experimental basis in 1980 at La Grange and One Arm Point.[1072]

748. The Aboriginal Communities Act 1979 (WA). The Act provides for the scheme to apply initially to the Bidyadanga Aboriginal Community La Grange Incorporated and the Bardi Aborigines Association Inc, with provision for further communities to be included by proclamation (s 4). It has in fact been extended to three other communities: Lombadina, Beagle Bay and Balgo Hills. A number of applications have been made by other communities to be included (including town-based Aboriginal communities). The Act provides for community councils to make by-laws covering a range of specified subject matters (s 7) including:

  • entry to community lands;

  • regulation of vehicles;

  • damage to local flora;

  • littering;

  • disorderly conduct, language or behaviour;

  • restrictions on alcohol; and

  • regulation of firearms.

749. Application of Aboriginal Traditions. There is no specific provision for by-laws to be made dealing with local Aboriginal custom, although some of the matters specified in section 7 could in their application include custom.[1073] Sub-section 7(3) provides that:

Nothing in this Act affects the power of a community or its Council to make other by-laws, rules or regulations under and in accordance with the Constitution of the community.

However, this provision is likely to be limited to by-law making powers associated with incorporation rather than any more general powers. The former Attorney-General clearly stated the Government’s intention with respect to the recognition of customary laws:

While the community by-laws enable customary law to be taken into account, they do not recognise or validate them in the sense of sanctioning some of the traditional forms of punishment such as spearing which are illegal under State law.[1074]

750. Enforcement of the By-laws. The by-laws apply to all persons, Aboriginal or non-Aboriginal, within the community lands (s 6, 9). Penalties of a fine not exceeding $100 and imprisonment for a maximum of three months may be imposed for breaches of the by-laws. Fines are paid to the Council for the use of the community (s 12). There is provision for an offender to be ordered to pay compensation (not exceeding $250) to the community or to an injured person (s 7). Breaches of the by-laws are dealt with summarily under the Justices Act 1902 (WA). Proceedings, which may be brought by a member of the police force, are not dealt with by a special Aboriginal court but come before an ordinary court staffed by justices of the peace or a magistrate. The intention however is that the court should be staffed by Aborigines, and to this end Aboriginal justices of the peace and other Aboriginal court staff have been appointed. No provisions in the Act deal specifically with this aspect of the scheme: once Aboriginal justices of the peace are appointed they have the normal powers of justices of the peace and are not limited to hearing breaches of the by-laws. There is no exclusion of other laws of Western Australia, such as the Criminal Code and the Police Act, from Aboriginal communities so that local by-laws are additional to other State laws.[1075] Section 13 of the Act provides that:

No by-law takes away or restricts any liability, civil or criminal, arising under any other statutory provision or at common law.

Thus there is a potential for conflict between by-laws and general State laws, in which case State laws would prevail. A number of conflicts are pointed out by Gyanraj:

  • a policeman may prosecute a person for breach of the Liquor Act even though there may be a community by-law dealing with the use of liquor;

  • whereas the Police Act provides a maximum penalty of six months imprisonment for disorderly conduct, the maximum under the Aboriginal Communities Act is three months.[1076]

Such conflicts, while not major, have the potential to undermine the effect of community by-laws, although in practice, given the restricted scope of the by-laws and the way they are enforced, this does not seem to have occurred.[1077]

751. Model By-laws. In order to implement the scheme a model set of by-laws was drafted and some training of Aboriginal justices undertaken. The first by-laws to become effective, for the La Grange community, were gazetted on 15 February 1980. Identical bylaws, for One Arm Point (Bardi), Lombadina, Beagle Bay and Balgo Hills, have since been gazetted.[1078] The by-laws closely follow s 7 of the Act. There are thus provisions regulating the entry of persons on to community land (Balgo Hills by-laws 3-5) and vehicle traffic on community land (by-laws 6-7), and creating a number of offences. For example, by-law 10 states:

No person shall cause a disturbance or annoyance to other/persons by using abusive language or fighting or otherwise behaving in an offensive or disorderly manner.

By-law 12 relates to alcohol on community land. The Council is empowered to permit ‘any person’ to bring alcohol onto community land or possess, use or supply alcohol on community land, but the Council may impose such ‘terms, conditions and restrictions as [it] thinks fit’. Proceedings for breaches of the by-laws may be brought by police officers, who are also empowered to remove a person from community land for a maximum of 24 hours or until a court is convened, where that person has committed an offence or is likely to cause injury to persons or to damage property. By-law 17 provides that:

It is a defence to a complaint of an offence against a by-law to show that the defendant was acting under, and excused by, any custom of the community.

Although this ‘customary law defence’ is not specifically provided for in the Act, if there is power to create offences in the by-laws then there must also be power to establish special defences.[1079] The defence has been relied on by defendants before courts sitting in Aboriginal communities, though on rare occasions and with very limited success.[1080]

752. The Extent of Aboriginal Autonomy. The by-laws which operate in the five Aboriginal communities in Western Australia are, so far as their content is concerned, non controversial. Their scope is limited. They cover a range of less serious offences, which however constitute a large proportion of the day-to-day problems within Aboriginal communities. While it is intended that there be Aboriginal involvement in the court administration, there is no requirement for this. Nor is it clear how much scope there is in practice for Aboriginal communities to draft their own by-laws to include aspects of the local customary laws, as the drafting of one set of model by-laws applicable in all five communities may indicate.[1081]

753. Geographical and other Limitations of the Scheme. The number of communities included in the scheme is still small. Considerable caution has been exercised in extending the scheme, which is so far limited to the north-west of the State. Aboriginal communities outside this region, such as Mt Margaret in the Eastern Goldfields, have requested inclusion in the scheme, but this has not yet occurred. The criteria for selection, as stated by the former Attorney-General, required that the community in question ‘be a coherent community with established community leaders, such as tribal elders, having recognised authority within that community’, that ‘the people and their leaders must demonstrate a desire to Preserve the peace and harmony of their community’ and that ‘they must show a willingness to abide by the laws of the land and be prepared to accept voluntary restrictions on alcohol consumption’.[1082] In addition, persons within the community with a reasonable degree of understanding of the legal system are required. Selecting persons to play leading roles and training them for their positions can be difficult and time-consuming. These, relatively strict, criteria may be one reason for the limited scope of the scheme so far: another is the State Government’s desire to review the scheme before extending it to other areas.[1083]

754. Contrast with Queensland By-laws. Comparing the Western Australian by-laws with the Queensland by-laws, the Human Rights Commission commented that:

The Western Australian by-laws confine themselves to a limited range of topics involving minimum interference with the day-to-day lives of residents in various Aboriginal communities. On the other hand the Queensland by-laws, containing as they do a very wide range of topics coupled with open-ended discretions entrusted to the Managers and Councils, permit the most minute regulation of the day-to-day lives of Aboriginal persons on reserves in Queensland.[1084]

The Human Rights Commission concluded that, again in contrast to Queensland, the Western Australian by-laws ‘do not involve racial discrimination or any serious infringements of human rights’.[1085]

755. The Western Australian Scheme in Practice. Very different views have been expressed on the success or otherwise of the scheme. The former Government of Western Australia considered the scheme very successful,[1086] but the present Government takes a more cautious and reserved view. According to the Minister with special responsibility for Aboriginal Affairs:

It is difficult for me to comment in any definite way on the effectiveness of the Act as this tends to vary considerably between community situations and depends upon a variety of factors. I feel that I can submit a general view that the WA Act has assisted some communities in their wish to have a closer involvement in the administration of justice at the community level and has also assisted in their improved communication with authorities in law enforcement and general judicial matters.[1087]

Questions have been raised about the autonomy of the justices of the peace in operating courts within their community. When the scheme was set up it was envisaged that the magistrate would train the Aboriginal justices of the peace, and that as they became proficient his role would diminish or even disappear, leaving them to run the court themselves. This has only occurred to a limited degree in most of the communities.[1088] The result is that Aboriginal communities still have little responsibility for their own local law and order problems. Obviously, training of Aboriginal justices and other court personnel is required, but the aim should be substantial independence, if this is what local Aboriginal communities want.

756. Community Support. The Commission held meetings in 1981 at both La Grange and One Arm Point and has discussed the scheme in detail with persons involved in its operation (including Mr T Syddall MBE and Dr J Howard, the two magistrates who have operated the scheme). There was clearly at the time in both communities, general support for the concept, although it was suggested that some difficulties arose in determining which matters should go to the ‘white man’s court’ and which should be dealt with according to Aboriginal traditional law.[1089] One view expressed at La Grange was that certain matters should be dealt with by community meetings rather than before a court:

… like some people when they have a fight or fighting between husband and wife, they face the court … It should have been settled by the whole community …

… You see its not a white man’s problem. May be the husband hit his wife. That’s a problem on the Aboriginal side.[1090]

Fr Kevin McKelson, who has been superintendent at La Grange for over 20 years, thought the new scheme had been and would be successful:

… in itself it has been a blessing, and the fact that sometimes it does not work is not due to the JP’s, it is due to the fact that the police possibly do not visit as regularly as they can or the local magistrate has other commitments in other areas of the Kimberleys.[1091]

757. The Hoddinott Study. But this view is not universally shared. A study of the scheme by Ms A Hoddinott, based on a six month project, was published in 1985.[1092] The study was highly critical of the way the scheme has operated in practice, partly based on the lack of real independence of the Aboriginal justices, but more fundamentally on the scheme’s failure to incorporate local customary laws. According to Hoddinott:

The scheme, whilst promising in its inception, has developed serious difficulties in application There are general feelings of discontent among community members participating in the scheme except at Beagle Bay … The whole social organisation of traditional Aboriginals rests on the kinship structure which is closely linked to expectations and obligations between kin. The justice of the peace scheme is creating havoc among tribal Aboriginals in terms of the expectations alone. Tribal laws are either being ignored or undermined by an alien value system. Further, Aboriginal justices feel they are becoming powerless both within their own law, and within the framework of the … Act … There is a lot of resentment and an increasing sense of impotency because they feel they are still advisors to the court.[1093]

However the statistical material presented by Hoddinott does not indicate any clear differences between communities in the region subject to the scheme and those that are not.[1094] Differences that do exist are almost certainly due to other factors.[1095] Moreover the scheme has never purported to be a recognition of ‘tribal law’ or of ‘tribal arbitration’.[1096] Structurally it was from the beginning an extension into local communities of the general court system, with certain adjustments and with the addition of local personnel. The range of offences covered is limited, both in theory and practice, and most are directly or indirectly related to alcohol. It is most unlikely that any scheme centering on the application of ‘tribal law’ or ‘tribal arbitration’ would concern itself with many of these matters. On the other hand, the disruption caused by alcohol can be great, whether or not ‘tribal law’ is involved. As the Western Australian Minister pointed out, it is perhaps for this reason that:

an increasing number of Aboriginal communities have requested that they be given the opportunity of having by-laws applied under the provisions of the Aboriginal Communities Act. Some of these communities are town based and it could be expected that a different range of factors would affect the operation of the Act should it be extended to these communities. It seems that most communities are seeking assistance in the area of liquor control and it may be more appropriate in some situations to introduce a modified form of the by-laws or new legislation aimed specifically at providing dry areas.[1097]

758. Future of the Scheme. Clearly there are very different perceptions of the scheme, influenced in part at least by different expectations of what it should be seeking to achieve. One possibility would be to restructure the scheme, to avoid the conflict with kinship responsibilities outlined by Hoddinott. However the scheme was specially formulated with Aboriginal kinship as a central feature. Aboriginal justices are chosen as representative of particular ‘sections’ or ‘sub-sections’ in order to overcome kinship difficulties. If Hoddinott is right about kinship difficulties, then clearly the fundamental assumptions of the scheme are open to doubt. There may be a large number of cases which the Aboriginal justices do not wish to hear, and which they are quite happy for the Magistrate to hear when he visits on circuit. In these cases the Aboriginal members of the community may seek only the opportunity to give background information or advice on sentencing, rather than being seen or decision-making. This would be similar to a scheme operating at Galiwin’ku in the Northern Territory, described in para 764. One danger in introducing local Aboriginal courts is that, rather than reducing the number of persons appearing in court, they may increase the number of prosecutions, and even the range of offences, well beyond what would otherwise be the case. The penalties imposed may be no different from those the ordinary courts would impose, or may be more severe. There is no real indication that the latter problem has occurred under the 1979 Act (as it has with Queensland courts), but that may only indicate its very limited scope and effect so far.[1098] The 1979 Act is being reviewed by the Western Australian Government:[1099] in that review careful consideration should be given to provisions which would assist local communities to achieve a more substantial degree of autonomy, whether through changes to the Act or in other ways which respond to local needs and demands.[1100] Furthermore, great care must be taken to articulate clearly the rationale for such courts, and to be realistic about what can be achieved.