838. The Search for Solutions. While it is possible to draw up various models of justice mechanisms for Aboriginal communities, and to point to potential difficulties and shortcomings, it is not possible to predict the likely success of any of them. Certainly it has become clear that there is no one solution or straightforward answer to the question:
to what extent Aboriginal communities should have the power to apply their customary law and practices in the punishment and rehabilitation of Aborigines.
To expect Aboriginal people to have worked out a coherent approach to reform is unrealistic. The only possible response to this aspect of the Commission’s Terms of Reference is to present various options and to initiate, or further, the process of discussion and consultation with a view to the eventual introduction of agreed proposals. Whatever longer term solutions are arrived at in terms of Aboriginal control or autonomy, problems of law and order for Aborigines and their communities, their relationship with the general legal system and the resolution of customary law matters remain. It does appear that changes to the general legal system can be made to reduce its impact on Aborigines, at least to some extent. Suggestions which have been canvassed in this Part include:
Provision of machinery to enable the creation of Aboriginal courts, but not a general system of such courts similar to the PNG Village Courts. Such courts if created should not be limited to dealing with customary law matters. They should only be established following detailed discussion and with the agreement of the local Aboriginal community (para 817). There would need to be adequate procedural safeguards in the operation of these courts (para 818).
The Yirrkala Scheme and any similar scheme that emerges in the future (paras 820-32).
Local conciliation or mediation panels (paras 833-4).
Greater knowledge and understanding on the part of criminal justice professionals in their dealings with Aborigines (para 835).
Improvements in Aboriginal/police relations and in particular the way in which Aboriginal communities are policed (paras 865-7).
Among these various options there can be no single preferred approach. The decision as to what are the most appropriate alternatives for Aboriginal communities mast rest with those communities. But assistance is likely to be required to ensure that Aboriginal groups and organisations are fully informed of the various options, to enable them to make an informed choice and to assist with questions of implementation.
839. A New Agency? One way in which assistance might be given is to establish an agency, similar to the Secretariat which services the Papua New Guinea village courts. This Secretariat, established before the village courts came into existence, is responsible for overall planning, to explain the courts to the people and to train the village court magistrates. The Secretariat has the following functions:
to extend the Village Courts system throughout the Nation where desired by the people, and ensure the effective and efficient operation of the system by monitoring the operation of the courts, co-ordinating, assisting in, and rationalising supervision and inspection, liaising with different departments, authorities and agencies, training Village Court Officials and support personnel, supplying advice and assistance where necessary, and providing general administrative services.
A similar agency could perhaps be established in Australia, but it would need to have a wider range of responsibilities, not limited to dealing with Aboriginal courts. Its task might involve liaison with Aboriginal communities, groups and organisations, supplying them with information and the resources to enable them to make a considered decision about justice mechanisms and other measures to overcome problems with the law. The agency could assist in drafting proposals, and with questions of implementation, although this would depend on the constitutional basis on which it was established. It could also have a continuing function of overseeing the various schemes established, considering modifications to existing schemes or the setting up of new ones. The Report of the South Australian Customary Law Committee on Children and Authority in the North-West recommended the establishment of a North-West Policy Bureau ‘to provide the Government with policy advice and to review matters affecting the North-West without prejudicing Pitjantjatjara autonomy’. The Report suggested that the Bureau would have a number of functions which would include:
[to] record and evaluate development, and where appropriate, co-ordinate proposals and initiatives as they emanate from Government (State and Commonwealth), semi-government and community sources.
840. Potential Dangers. There are a number of disadvantages in establishing such an agency. The most important is that it may artificially create expectations or generate interest for schemes or proposals which are not genuinely sought or needed. Aboriginal communities may feel under some pressure to become involved in considering new proposals merely because such options are available. The agency would also have to ensure that it did not take over decision-making responsibility or become just another arm of government dealing with Aborigines. There is the related difficulty that some Aborigines may be led to believe that the answers to their problems lay beyond their own societies, in the adoption of non-Aboriginal institutions and ways of doing things. Associate Professor Barsh, drawing on wide experience of indigenous peoples in the United States and Canada, counselled against the too ready acceptance of this approach:
I am concerned by the number of communities that told the Commission they wanted uniformed police and real judges. That was exactly what was happening in the US in the 1920s, when Indian leaders began pressing for the right to have (what they perceived as) real governments. They were overawed by the apparent effectiveness of white institutions. After a generation, they found that white institutions weren’t working well in their communities, and began blaming themselves for the failure (‘we just don’t know how to run a good government’). By the 1970s, tribes discovered that white institutions hadn’t worked all that well in white society, either. By that time it was too late to undo much of the damage wrought by zealous law enforcement and the rise of a juridical-administrative elite. Similar problems are developing in Greenland. Inuit leaders seem intoxicated with the apparent sophistication and power of Danish institutions, and reproduce them anxiously.
Indigenous courts are almost invariably modelled on the general legal system or rather its lower echelons They may commence with flexible procedures, but they tend to become more formalised and legalistic. Perhaps this is inevitable. It certainly appears to have the effect of undermining customary laws and practices. Aborigines need to be fully aware of those dangers.
841. A Non-Government Approach? An alternative approach to establishing a federal agency was put by Dr Coombs. He suggests that a body such as ANUTECH (a subsidiary of the Australian National University set up to carry out commissioned research) could be a point of first contact to provide advice to Aboriginal organisations about what information or resources are available and how access might be obtained. Some work would be done on a commercial basis but other work might be done by academics with a research interest in an area with only expenses being paid. Dr Coombs points out that the Australian Conservation Foundation has a comprehensive panel of experts who work in this way on environmental issues. He suggests the following structure’
ABORIGINAL RESEARCH SERVICES
Board of Management (Honorary)
Composed of Aborigines with some research experience available in city where organisation is located. If Canberra, Aboriginal research managers of AIAS and NAC, NAILS, NAIHO.
Board of Advisers (Honorary)
Composed of academics with experience in fields of knowledge relevant to Aboriginal needs, law, organisation, health, archaeology, anthropology, land use, environmental and socio-economic impact studies.
Panel of consultants (volunteers)
Euro-Australian and Aboriginal academics and professionals etc. willing to make their services available on terms to be negotiated in individual cases — from free, expenses only to full commercial terms according to circumstances.
Aboriginal with some organisational experience and knowledge of academic disciplines.
842. An Aboriginal Organisation. For a number of years the Aboriginal legal services throughout Australia have sought the establishment of a small secretariat, preferably based in Canberra, as a general support facility. If such an agency did come into existence one of its responsibilities could be to assist communities to formulate proposals for new justice mechanisms within Aboriginal communities. Such an agency would have distinct advantages. It would be run and supported by Aboriginal people, and it would rely on the experience and expertise of Aboriginal legal services which have dealt exclusively with legal problems facing Aboriginal people, and which are situated in city, country and remote parts of Australia. They are thus in a unique position, with the capacity to take fully into account Aboriginal views about their problems and difficulties. In particular such a body could have as one of its responsibilities the monitoring of Aboriginal communities needs with respect to local justice issues. Mr JP Harkins in his Inquiry into Aboriginal Legal Aid made the following observation about a national secretariat for Aboriginal legal services:
There are a number of respects in which ALSs could benefit from communication and coordinated action. The establishment of a national legal services organisation … is one of several ways in which this might be achieved. A national conference, suggested elsewhere in this report, and bilateral arrangements on specific issues as they arise, are other means.
He concluded that improving the delivery of legal services to Aborigines in the States and Territories should be given higher priority than a national secretariat, and he did not consider whether the role outlined here would be a suitable one for such an agency. In the Commission’s view, if an agency is needed to assist Aboriginal communities to assess appropriate community justice mechanisms, it should be an Aboriginal agency. Given that a National Aboriginal and Islanders Legal Services Secretariat (NAILSS) is already in existence, even if in fledging form, it seems sensible that it be utilised rather than creating any new structures or organisations.
843. Related Issues. To a considerable degree the choice between differing methods of implementation depends on the wider issues of self-government and local autonomy outlined earlier in this Chapter. These questions, and related issues of implementation, will be discussed in Part VIII of this Report. It should also be noted that some of the purposes sought to be achieved by local justice mechanisms may be achieved in other, perhaps indirect, ways. A number of these are dealt with elsewhere in this Report, including the following:
the introduction or reinforcement of procedures to allow community opinion on customary law and attitudes to offenders to be introduced in court (para 510-515)
the diversion of certain cases from the courts to be dealt with by local Aboriginal communities (para 481-9)
the enforcement of Aboriginal customary laws in the courts at least in some circumstances (para 461-465)
the creation of a complete or partial defence based on Aboriginal customary laws (para 451-453)
taking Aboriginal customary laws into account at the sentencing level in criminal cases (para 505-511).