721. History of ‘Aboriginal Courts’. From time to time, attempts have been made in some States to create special courts for Aborigines.[1003] These courts have not used existing Aboriginal authority structures, but have sought to adapt the model provided by the general court system to allow for what was perceived as the special situation of Aborigines. They have not necessarily been intended as concessions to Aboriginal requirements: one reason for their creation may have been the difficulty in obtaining convictions before the ordinary courts, where juries were often reluctant to convict.[1004] Aboriginal court systems have often been imposed on Aborigines with little consideration being given to the views or to the effectiveness of their customary mechanisms.

  • Western Australia. In Western Australia between 1939 and 1954 there was provision for Courts of Native Affairs to be convened on an ad hoc basis to try a ‘native’ for an offence committed against another ‘native’. The Court consisted of a special magistrate, nominated by the Governor, as chairman, and the Commissioner of Native Affairs or his nominee. The Court could enlist the assistance of a headman of the tribe to which the accused belonged, and could take into account in mitigation of punishment any tribal custom which was proved to be an element in the commission of the offence. If tribal custom was an element, the Court’s punishment powers were limited to imprisonment not exceeding 10 years or banishment from his country to be kept during the Governor’s pleasure in prison, or at a place reserved for banished native prisoners. There was no appeal from a Court of Native Affairs. It is not known how often these courts were convened although it is probable they were not held regularly.[1005]

  • Queensland. Special courts to hear offences committed by Aborigines who were resident on reserves in Queensland were provided for in the Aboriginal Preservation and Protection Act 1939 (Qld). The Act gave extensive powers to the Chief Protector of Aborigines (later the Director of Native Affairs) to deal with offences by Aborigines. Amendments in 1945 extended these powers to include property management, deceased estates and Aboriginal courts, police and gaols. The superintendents of reserves were empowered to constitute a court to hear a wide range of offences committed by Aborigines on reserves. An Aboriginal police force was established, also under the superintendent’s control. From 1965 Aboriginal justices of the peace or members of the Aboriginal Council were empowered to constitute the Aboriginal court.

  • Northern Territory. In the Northern Territory plans were originally drawn up for a system of native courts in 1938. This was followed in 1940 by an Ordinance providing the framework for the courts.[1006] The jurisdiction and powers of the Courts for Native Matters were to be prescribed by regulation, but although regulations were drafted to cover these and other aspects of the scheme they were never brought into operation. Courts for Native Matters, while much talked about, never sat.[1007]

722. The Present Situation. Both Queensland and Western Australia still have systems of Aboriginal courts. While these operate in different ways, basically they involve the enforcement by Aboriginal personnel of a set of local by-laws. However, many magistrates in different Australian jurisdiction have experimented unofficially with ways of making the court and its procedures more relevant and understandable to Aboriginal people. For example in 1979 in the Northern Territory, Chief Magistrate Galvin introduced modified court procedures when he sat at the Port Keats Aboriginal community.[1008] He would arrive at Port Keats a day or two before the court was to sit to familiarise himself with the local scene and to discuss matters generally with the elders. During the court sittings the elders sat with the Magistrate and he would discuss with them the appropriate punishments. This would be done in all but the more serious offences. The Court was conducted with less formality and as a result was apparently well accepted by the elders, and other people at Port Keats, as a genuine attempt to get them involved in the decision-making process and to make the court more comprehensible.[1009] Magistrates Grubb and Lewis when sitting in the former North-West of South Australia (now Pitjantjatjara land under the Pitjantjatjara Land Rights Act 1981 (SA)) made it a practice to consult with tribal elders during court proceedings. The elders performed the role of assessors, which included discussion of appropriate penalties.[1010] Magistrate Terry Syddall conducted court hearings in a similar way in the Kimberley region of Western Australia during the 1970s. More recently a scheme to get greater community involvement during the court sittings has been set up at Galiwin’ku (NT).[1011] However, these responses by magistrates to the needs of Aboriginal defendants and their communities have been very much ad hoc, depending largely on the individual magistrates involved. They have not become entrenched procedures anywhere. This Chapter describes the various special schemes for Aboriginal courts or similar bodies, and the extent to which these have proved successful alternatives to the administration of justice by the ordinary courts.