Administrative Recognition

835. Major Areas of Concern. With few exceptions, Aboriginal communities have not, so far as the Commission is aware, sought to have separate or independent justice mechanisms officially established. Though the various problems of local law and order facing many communities are well-known, and cause much concern, members of those communities have not sought to resolve them by excluding the criminal justice system or establishing alternative mechanisms. They have however, sought a better working relationship with the police and the courts.[1324] Professor Stanner expressed it in these terms:

In my opinion, if a remedy could be found for the shortfall or miscarriage of justice which now affects Aborigines, either because of their incomprehension of their situation when under charge, or because of the misprisal by our functionaries of Aboriginal viewpoints and motives and sense of responsibility, there would be little difficulty in the criminal law area … It is my impression that amongst Aborigines I know well the certainty and relentlessness of the process of the criminal law are not resented. What is resented deeply is the arbitrariness, the use of violence, the impatience and the boorish neglect of Aboriginal rules of privacy, decent conduct and respect for persons and authorities so often shown by the process of our criminal law.[1325]

Those concerned in the administration of the criminal justice system need to be more sensitive to the special problems facing Aborigines and to take into account Aboriginal customary laws.[1326] For example the South Australian Police do not pursue prosecutions where tribal spearings have occurred as a form of tribal punishment ‘providing the spearing relates to a strict tribal custom and no complaint is made to police by the victim’.[1327] This is one form of administrative recognition of Aboriginal customary law. Other proposals of this kind have been put forward. Many relate to questions of policing, both in terms of relations between Aboriginal people and the police, and proposals for ‘Aboriginal police’ of various kinds. The police are, in a special position as the first point of contact with the criminal justice system. They are considered in detail in the next Chapter. But discussion should not be limited to the police. Judges, lawyers and others involved in criminal justice all need better information and education in relation to Aboriginal customary laws. The Galiwin’ku Scheme[1328] established in the Northern Territory as a pilot project is one attempt to do this. It has at present no statutory basis but relies on flexible procedures to accommodate local needs. Much can be achieved towards the recognition of Aboriginal customary laws and satisfying Aboriginal demands in this regard by simple administrative measures of these kinds.