759. Different Schemes. There are no separate mechanisms in the Northern Territory such as those discussed in this Chapter. However, two recent developments should be mentioned. The first involves the granting of certain local government powers to Aboriginal communities, including the power to pass special by-laws to operate within the specified community area. Although the powers to make by-laws are circumscribed, the Community Government Scheme, as it is known, may provide a model for law and order powers to be given to certain communities in addition to their local government powers. The second development involves an attempt to get greater Aboriginal involvement in the administration of the criminal justice system at the local level. Finally there is an interesting dispute resolution model contained in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Section 25 imposes on Land Councils an obligation to conciliate in Aboriginal disputes over land within their area of responsibility. These provisions will be described in turn.
760. Community Government Scheme. The Community Government Scheme was introduced by an amendment to the Local Government Act in 1978. Although not specifically limited to Aboriginal communities, it has so far been introduced in Aboriginal communities only: Lajamanu, Angurugu and Milikapiti, with Belyuen, Nguiu, Maningrida and Palurumpi intended to be included in due course. Communities must apply to the Local Government Minister for inclusion in the scheme. The Minister has to approve a model set of provisions for community government schemes which may be adopted by the community, or the community may draw up its own provisions which must be exhibited for public comment. The Minister has to arrange consultations with community residents before approving a scheme, and must be satisfied that the majority of the residents are in favour of the scheme. The scheme provides for the election of a community government council whose powers under s 454 may include commercial development; communications; community amenities; education or training; health; housing; relief work for unemployed persons; roads and associated works; water supply, and welfare. These are broad powers, considerably broader than would normally be given to a local government council. They provide the potential for a degree of autonomy, although, of course, within the constraints of the Local Government Act. It is a matter for each community to decide, when the schemes are set up, which powers they will exercise.
761. Local By-laws. The community government council has the power to make by-laws which, in addition to local government matters, may cover:
the sale, purchase, possession, presence and consumption of liquor (s 476(d)); and
the sale, display, possession, hire, purchase, presence and use of firearms (s 476(e) or offensive weapons (s 476(f)).
A fine of up to $200 may be imposed by the court for any breach of the by-laws. By-laws come into effect on notification in the Gazette, unless another date is specified. There is provision for disallowance by the Legislative Assembly. The Minister has no direct powers to disallow by-laws although he may recommend amendments. There are no special provisions for the by-laws to be policed by either the Council or by any local Aboriginal police vested with special power to deal with such breaches. On the other hand the contents of a community government scheme have effect as a law of the Territory (s 439) so that any breaches of the by-laws would be dealt with as a breach of Northern Territory laws.
762. The Scheme in Practice. The community government scheme is still in its early stages. Lajamanu has been operating for a number of years, but Angurugu only since September 1982 and Milikapiti since October 1983. No by-laws have yet come into effect. Discussions have been held at Lajamanu about by-laws: one idea was for a by-law to make it an offence to be drunk in a public place within the community boundary, but the action required to put this into effect has not been taken. The Angurugu Community on Groote Eylandt has requested by-laws to cover offensive weapons, control of dogs, petrol sniffing and swimming in the catchment area, but the community had received no information as to when the by-laws would be drafted and put into effect.
763. Delegation of Child Welfare Functions. A further development of the community government scheme is contained in the Community Welfare Act 1983 (NT). Sections 70 and 71 of the Act envisage delegation to a community government council of certain child welfare functions. Section 70 provides for a preference principle so that Aboriginal children in need of care are placed with Aboriginal persons. Section 71 gives a specific role to a community government council:
A community government council constituted under the Local Government Act or an association incorporated under the Associations Incorporation Act may, subject to agreement with the Minister, undertake functions under this Act in relation to the welfare of children and the provision of facilities and trained staff to provide counselling and assistance to, or in relation to the welfare of, children.
No agreement has yet been made with a community government council under s 71. The section has been criticised because the Community Government Council is given a role involving child welfare decisions which it would not have under customary laws. The 1983 Act, and its operation in practice, are discussed in Chapter 16 of this Report.
764. Justice (Courts) Project in Aboriginal Communities. This pilot project, which had been under consideration in the Northern Territory for some years, was initiated in November 1982. Only one community, Galiwin’ku (Elcho Island), has so far been involved. Basically the court is run under ordinary rules but with flexibility to allow local views to be taken into account in sentencing. A group of clan elders sit with the magistrate in order to give their views on the seriousness of the offence and an appropriate sentence. The family of the accused and other community members may also attend court to give their views on the accused’s behaviour and appropriate sentence. An anthropologist employed within the scheme is responsible for assessing family and community views both on individual cases and on broader issues. He assesses family structure and proposes strategies for the offender’s future. His role is supplemented, and will eventually be taken over, by two locally employed Aborigines who gather information required by the court. A detailed report is prepared on each offender detailing their information for the magistrate before the offender appears in court. According to the Northern Territory Department of Law the scheme has a number of aims:
1. More community involvement in the system of courts.
2. The community to be able to give more advice in particular court cases, especially facts and background advice and advice as to forms of sentencing.
3. Matters brought before the courts to be dealt with in traditional ways, if that is what the community wants, as long as those ways do not offend existing law.
4. Advice from the communities about the traditional ways of maintaining control in the community.
5. Resolution of some disputes before they get to court.
Although local Aborigines sit with the magistrate, in effect as ‘assessors’, this is neither a new arrangement nor the most significant aspect of the scheme. What is significant is the work done, by the anthropologist and by two local Aborigines employed under the scheme, to prepare a background report on the offender, and to seek to link relevant kinship responsibilities with the eventual sentencing decision. The anthropologist concerned has:
developed a genealogical index with the permission of the participating Aboriginal clans as a major tool for precisely identifying a defendant and then tracing, through genealogical links, specified kin whose traditional responsibilities toward the defendant included the exercise of specified Aboriginal social controls. This data is then selectively made available on a restricted basis to effect consultation with the defendant’s family prior to court and to provide detailed social background reports to the magistrate.
This information has allowed the magistrate, with the advice of senior Aboriginal men, to make better informed sentencing decisions:
Prior to the sentencing of a defendant in the community court there is afforded to the magistrate a reasonable assessment as to whether or not the clan group of the offender has the ability to rehabilitate him in the manner in which they wish, such as isolating him at an outstation, putting him through a ceremony subservient to the authority of older men etc. Although many clans may aspire to do this, the magistrate must have a realistic assessment as to whether or not the clan has the ability to carry out such actions and whether the wider community will allow it to happen.
Thus the scheme concentrates at the sentencing level, with only minor changes to the court itself. A review of the scheme after one year reported an apparent drop in imprisonment rates at Elcho Island, though the figures are far too small, and the scheme has been operating for too short a time, for this to be significant. Of more interest is the observation that:
the majority of offenders coming before the courts are from clans not living on their own estate but resident in major communities such as Galiwin’ku and Milingimbi, thus subject to considerable internal politics and an often dessicated authority structure.
Although the project is of considerable interest, it is too early to assess its real impact. That should be the subject of an independent review in due course.
765. Conciliation Role of Land Councils. Section 25 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) imposes a duty on Land Councils to attempt conciliation of disputes over land between Aborigines and/or Aboriginal organisations. Subsection (3) provides that:
Where proceedings are commenced before a court with respect to [a land dispute of this description] the judge or magistrate constituting the court may, if he thinks it appropriate, adjourn the proceedings at any time for the purpose of affording a Land Council the opportunity of undertaking conciliation with a view to the settlement of that dispute.
Land Councils have been involved in conciliating such disputes, although the Commission is not aware of proceedings being adjourned in any court for the purpose of enabling conciliation to occur. The Commission has been informed that in those disputes where Land Councils have been involved they have been quite successful, although some disputes between groups of long standing have been difficult, sometimes impossible to resolve.