836. Policies of ‘Aboriginalisation’. One idea often suggested in the present context is a policy of increasing the number of Aborigines holding decision-making positions within the criminal justice system. This envisages the appointment of Aboriginal justices of the peace, Aboriginal magistrates and Aboriginal support staff in the courts, as well as Aboriginal police officers. It implies also the training of more Aboriginal lawyers. It is argued that, to avoid the alienation and hostility which is a feature of relations between Aborigines and the criminal justice system, Aborigines should be involved in the system in roles other than as accused persons. More Aboriginal justices of the peace and magistrates will, it is said, make the system more understandable and less alienating. Aborigines may come to perceive the criminal justice system as something other than as a non-Aboriginal dominated structure over which they have no input or control. The assumption is that no significant changes can, or perhaps should, be made to the existing legal system, but that Aborigines should as far as possible perform judicial and other functions, at least at the lower court level. This policy received strong support from a National Police Working Party which made detailed submissions to the Commission on this Reference. The Working Party commented that:
Aboriginalisation within the police and court structure should be a long term aim and that in the immediate term efforts should be made to place suitably qualified personnel within the judicial process in areas where there are Aboriginals, on a regular and frequent basis.
The Queensland State branch of the National Aboriginal Conference also supported ‘Aboriginalisation’:
There are few Aboriginal and TSI Justices of the Peace and magistrates are often ignorant of the cultural influences which shape the behaviour of Aboriginal and TSI people … [T]he process of ‘Aboriginalisation’ of the law system [should] be rapidly achieved through such actions as training and appointing Aboriginal and TSI Justices of the Peace, stipendiary magistrates, jurors etc.
The concept of ‘Aboriginalisation’ of the legal system also received indirect support from the Groote Eylandt Aboriginal Task Force:
The appointment of an Aboriginal Justice of the Peace from each community would serve to increase community provision of judiciary processes. Moreover each community would have a point of access into the judicial system.
837. ‘Aboriginalisation’ as a Solution. The appointment of Aborigines as justices of the peace and magistrates is unlikely to go very far towards reducing the number of Aborigines coming into contact with the criminal justice system, nor does it go any way towards the recognition of Aboriginal customary laws. Taken alone it seems an insufficient response to the present situation. Moreover, quite apart from considerations of practicality (including the ‘diversion’ of the relatively small number of qualified Aborigines from other positions and areas of concern) the history of ‘indigenisation’ as a policy in other countries with ethnic minorities is not encouraging.
In my experience here [United States] both judges and police are placed in an impossible situation in tribal communities … , kinship obligations and professional duties inevitably come into conflict. One of three consequences can be expected: (1) the law-enforcer becomes an outlaw in his own community and identifies increasingly with external authority; (2) the law enforcer respects kinship obligations to his own clan or family, upsetting the entire balance of power in the community and destabilizing it; or (3) law-enforcers have to be imported from other communities, in which case they are little better informed than whites. ‘Indigenising’ conventional law processes is almost always futile.
The Western Australian Scheme is a form of ‘indigenisation’ and relies on the appointment of local Aboriginal justices. The local court at Aurukun in North Queensland is run by Aboriginal justices. Aboriginal justices of the people have previously been appointed in both city and country areas. In the Northern Territory some years ago 2 senior Aboriginal men were appointed as justices to sit with the magistrate when he visited their community on circuit. The system eventually became unworkable as the justices found it increasingly difficult to avoid obligations to kin and would often be expected to speak on behalf of their family or clan if one of its members appeared in court. The judicial system should as far as possible reflect the ethnic mix of the population, but a concerted policy of ‘indigenisation’ or ‘Aboriginalisation’ will not solve the problem of Aborigines within the criminal justice system, nor is it a form of recognition of Aboriginal customary laws.