Aboriginal Courts or Similar Bodies

812. Basic Features. Several kinds of local courts have been described in this Report, including the Queensland and Western Australian schemes, the Papua New Guinea Village Courts and the Indian tribal courts in the United States. Each essentially involves the enforcement of local by-laws by courts staffed by persons appointed from (though not always by) the local community. While such by-laws could be expected to reflect local customs and practices it is only in the Papua New Guinea village courts that indigenous customs and practices are applied to any significant extent.[1260] Essentially in each of the jurisdictions mentioned the indigenous courts are modelled on the common law court system at its lowest level of the magistrate’s or justices court. Is such a system appropriate in Australia?

813. Support for Aboriginal Courts. In submissions to the Commission and in its fieldwork, the Commission has received very few requests from Aborigines for Aboriginal courts to be established.[1261] There may be a number of reasons for this, but there certainly does not appear to be any groundswell of Aboriginal opinion in favour of such courts.[1262] The Commission has however received several well-argued submissions from non-Aboriginal persons in favour of such courts.[1263] Professor Kevin Ryan made the general observation:

There is, I believe, much to be said in favour of the general idea of making aboriginal communities responsible for the administration of a set of rules which will apply to their members, and this implies that they must be invested with police powers, with judicial powers, and with powers of punishment.[1264]

Mr Henry Wallwork QC, who had originally opposed the scheme set up in Western Australia, changed his mind after the scheme had been operating for some time:

It now seems however that these courts and law enforcement procedures allow the traditionally oriented Aborigines to retain their racial identity and traditional lifestyle even if they are not traditional forms of dispute settlement … It may be that what is more important than the preservation of customary law is the giving of law making and law enforcing powers to Aboriginal communities in order that they may control crime and disorder within their areas by the use of the general Australia laws adapted to those communities.[1265]

Mr AR Welsh, who has had extensive experience with village courts in Papua New Guinea and who worked for several years with the Department of Aboriginal Affairs in the Northern Territory, argued strongly for such a scheme. He suggested that ‘the absence of a community or village level dispute settling mechanism backed by law is presenting a serious handicap in promoting the welfare and development of the [Aboriginal] people’.[1266] In his view:

The fact that Aboriginal Communities cannot control their members adequately in the absence of Government-backed support for participation in their own law and order is not necessarily an indication that this situation would continue to exist if such backing were introduced. Indeed I feel the lack of social control within certain Aboriginal groups is largely due to Government refusal to grant adequate powers and responsibilities to the traditional leaders of such groups.[1267]

He concluded that a village court system is appropriate and could be set up in Aboriginal communities in the Northern Territory:

Providing that legislation takes account of the actual customs of the people it covers there is no reason to suppose that Aboriginal groups are incapable of participating in law enforcement and the administration of justice. In fact there is already evidence that Aboriginals are not only capable of such participation, but that they are also capable of properly exercising legislative functions (NT Land Councils and Queensland Aboriginal Councils) … I believe that if the same legislation for Village Courts existed in the Northern Territory I would have no problems in setting up courts at say Yirrkala or Warrabri …[1268]

Professor Goldring has also suggested that the Papua New Guinea village court model should be applied in Australia:

It is therefore suggested that official sanction be given to traditional dispute-settlement bodies within traditional aboriginal communities, similar — and if possible with fewer bureaucratic requirements — to that accorded to the traditional dispute-settlement in PNG. The law should also provide that if a person has been dealt with by such a ‘village court’ acting within its jurisdiction, he should be immune from further proceedings in any other court in respect of the same matter or transaction.[1269]

814. Contrary Arguments. On the other hand Mr Noel Wallace, who has worked with the Pitjantjatjara people in South Australia, argued against the village court model:

There is no possibility that unbiased justice would be received under similar circumstances with the Western Desert people, due to kinship obligations.[1270]

Mr Gerry Blitner, then Chairman of the Northern Land Council, was also not in favour of Aboriginal courts. In the context of local application of customary laws he commented:

This way [setting up Aboriginal courts] it would not function, because we have our own identity. This is what has happened in some areas [Queensland] and they have … lost their identity.[1271]

One reason repeatedly given for rejecting Aboriginal courts, especially in traditionally oriented communities, was the need to appoint particular persons to exercise judicial authority. Mr Pauling SM commented that appointing Aboriginal justices of the peace would cut across existing family and authority structures,[1272] a view echoed by Mrs L Lippmann:

Setting up of separate formalised courts on settlements might tend to destroy the standing of the traditional bearers of authority (as the training of Aboriginal JPs in traditional areas has tended to do), thus leaving Aborigines once more to receive the worst of two worlds.[1273]

Ms Pam Ditton, in a submission to the Commission prepared after some time working in tribal courts in the United States, commented that:

In those areas where the Aboriginal people continue to run their own affairs by their own traditional unwritten law I do not see any system of tribal court along the lines of anything I saw in the [United] States as being other than a total disaster.[1274]

In her study of the Aboriginal Justice of the Peace scheme in Western Australia, Hoddinott pointed to what she saw as serious shortcomings in the scheme. But in her assessment the one community in which the scheme works effectively is the least traditionally oriented:

The Beagle Bay Aboriginal Community is, in some ways an exception to the general flawed operation of the JP Scheme. Although the community does not practice tribal custom there is a strong sense of community cohesion and re-identification as Aboriginal … Many Aborigines living at Beagle Bay have a reasonable command of the English language and a fair understanding of English law … The JP Scheme has added to the new sense of community identity and JP’s have few problems applying the Aboriginal Communities Act.[1275]

Aboriginal courts may well be effective in some Aboriginal communities, particularly those which have undergone the greatest changes with respect to their customary laws.

815. The Law to be Applied. Official Aboriginal courts need not only apply local customary laws. The law applied could be the general law, or it could incorporate or take account of valued customs and traditions. As Dr Maddock pointed out:

It may be that [Aborigines] will simply wish to be authorized to apply their own laws and practices, the range and content of these to be determined by themselves in their own way as occasion for it arises. On the other hand, it may be that some communities would wish to draw up a code of rules to be observed, the implication being that uncodified rules would not be obligatory upon members of the community in question … Should a code of substantive rules be favoured, however, it would be necessary to ask oneself whether it is reasonable to expect a community to produce a list of rules governing the entirety of the conduct of members together with an indication of how to weigh them against each other in cases of conflict between members who were invoking different rules.[1276]

A submission from a National Police Working Party was in favour of local community by-laws with a wider content:

Aboriginal communities should participate in determining local community by-laws. These provisions should especially relate to the problems arising from the interaction of Aboriginal tribal society with the broader Australian society and some of the ‘lower order’ customary offences.[1277]

While by-law schemes raise wider issues of the area, unit and content of self-government, and should not be treated as restricted to ‘law and order’ issues,[1278] it is clear that the law to be applied in Aboriginal courts cannot be limited to Aboriginal customary laws. The law to be applied should include both aspects of customary laws (if local Aboriginal people want this) and of the general law.

816. Lessons from the Western Australian Scheme. One scheme which attempts to address at least the more obvious difficulties with Aboriginal courts has been the Western Australian scheme, described already.[1279] The scheme is similar to the usual court of summary jurisdiction, but it is, partly at least, run by Aborigines, and has the advantage of being locally based. Its supporters suggest .that the scheme as established accords with Aboriginal traditions and ways of doing things:

In this way, Justices from the appropriate section by virtue of their status with particular offenders should normally be available to deal with them as they would be in Aboriginal law.[1280]

Mr Terry Syddall MBE, the architect of the Western Australian scheme, commented that it has been very successful:

It seems likely that their involvement will contribute towards a harmonisation of relationships on a much wider scale by reducing resentment felt when a law alien to their culture is administered by Europeans. Moreover, by administering European law to their own people, traditional constraints such as ‘shame’ are automatically invoked against offenders. This gloss is absent where proceedings are administered by Europeans. Further, it is likely that non traditional offences contained in by laws such as those relating to alcoholic liquor will become ‘Aboriginalized’.[1281]

A similar view has been expressed to the Commission by the present magistrate, Dr John Howard SM. The result, on this view, has been a synthesis of local customary law and the by-laws, such that the community at La Grange refer to the new law as ‘Bidyadanga Law’.[1282] Mr Syddall commented that the process of synthesis would be inhibited if persons appearing before the Aboriginal justices are allowed legal representation.[1283] On the other hand, it has been argued that an Aboriginal justice of the peace, hearing an offence against community by-laws and sentencing the defendant, if found guilty, to a fine or gaol, cannot be said to be dealing with a person as he would under Aboriginal law, even if by coincidence he stands in the right relationship to the defendant and has a personal responsibility to deal with him as a wrongdoer. The conclusion of Associate Professor Getches was that:

… they [the Yirrkala proposal and the Queensland and Western Australian Aboriginal courts] all suffer from an attempt to appear indigenous when in fact they are transplants of Australian values and authority (very little authority at that) in native communities and hands. They do not apply or defer to Aboriginal law ways.[1284]

On this view, such courts are assimilationist in their underlying philosophy and are likely to have an undermining effect on Aboriginal customary law and its processes.[1285]

817. General Conclusion. After considering the submissions received and examining the relevant Australian and overseas experience, the Commission does not recommend a general scheme of Aboriginal courts for Australia. The Village Courts in Papua New Guinea have been generally successful, and it is possible that similar bodies might be suitable in some Aboriginal communities. But the wholesale transplanting of such a scheme is unlikely to be successful. There is simply no indication that this would be welcomed by, or be workable in, the diverse range of Aboriginal communities. The Village Courts scheme requires a central secretariat and machinery for supervision which, though necessary to cope with the considerable demand for village courts there, is unlikely to be practical in Australia. Local law and order is only one of a number of areas where Aborigines may seek to exercise local authority, and not necessarily the one to which they would attach the highest priority. Establishing elaborate machinery, with framework legislation, focussing on local courts and law and order issues would tend to bias decision making. It is better that such questions be considered in the broader context of proposals for local self-government, referred to already.[1286] However, this conclusion does not mean that particular local courts or other bodies should not be established in response to genuine local demands or initiatives, or that existing courts should not be retained if the local community so wishes. But certain basic standards should be applied to local Aboriginal courts officially established. The standards should apply both to existing Aboriginal courts such as those in Queensland and Western Australia, and to any similar bodies which may be created.

818. Basic Standards for Aboriginal Courts. Notwithstanding the criticisms directed at both the Queensland and Western Australian courts they appear to have some degree of local support, and are likely to continue to exist for the foreseeable future. In line with the principles discussed already,[1287] there are a number of important requirements for the acceptable working of such courts. These requirements have taken into account the basic criteria for the suitability of community justice mechanisms outlined in paragraph 804-808.

  • The local Aboriginal group should have power to draw up local by-laws, including by-laws incorporating or taking into account Aboriginal customs, rules and traditions.

  • Appropriate safeguards need to be established to ensure that individual rights are protected,[1288] by way of appeal or a right to elect an alternative form of trial (e.g. in the magistrate’s court).

  • The by-laws should, in general, apply to all persons within the boundaries of the community.

  • If the court is to be run by local people, they should have power within broad limits to determine their own procedure, in accordance with what is ‘seen to be procedurally fair by the community at large’.[1289]

  • The community should have some voice in selecting the persons who will constitute the court, and appropriate training should be available to those selected.[1290] In minor matters there need be no automatic right to be represented by legal counsel before the Aboriginal court,[1291] though the defendant in such cases should have the right to have someone (e.g. a friend or family member) speak on his behalf.

  • The court’s powers should include powers of mediation and conciliation. A court which is receptive to the traditions, needs and views of the local people may be able to resolve some disputes before they escalate, perhaps avoiding more serious criminal charges. The power to order compensation of some kind in such situations is one way of achieving this.

  • Such courts need appropriate support facilities.

  • There should be regular reviews of the operation of any such court, undertaken in conjunction with the local community.

819. Introduction of New Aboriginal Courts and Similar Bodies in Particular Communities? With changes of this kind it may well be that existing Aboriginal courts in Queensland and Western Australia will achieve a measure of general acceptance and utility which they have not always had so far. But it is another matter to advocate the extension of Aboriginal courts to other communities, let alone to make comprehensive provision for such courts. As has been pointed out already, local powers over law and order matters are best dealt with in the broader context of local self-government.[1292] So far as a general system of Aboriginal courts is concerned, there is no indication that this would be welcomed by, or workable in, the diverse range of Aboriginal communities.[1293] However one possible exception to this generalisation is the so-called Yirrkala proposal, which is the only worked-out proposal submitted to the Commission for a separate formal local justice mechanism, proposed by or on behalf of an Aboriginal group.