820. History and Development. Yirrkala is an Aboriginal community in North-East Arnhem Land (NT). The Yirrkala model was developed over a number of years with the assistance of Dr HC Coombs and Dr Nancy Williams. People at Yirrkala first raised the possibility of administering law and order within their community in 1974 and made representations to the Commonwealth Government to this effect. There were discussions with judges and magistrates, and senior members of the community visited Kowanyama (Qld) in 1977 to observe the Aboriginal court there. Since 1977 the Commission has received a number of submissions from Yirrkala, including notes for legislation for the scheme and for related rules and procedures. Commission staff have discussed the proposals with members of the community on a number of occasions.
821. Two Councils. The intention of the scheme is to rely on traditional ways of settling disputes and restoring order but to institutionalise the procedures so that they fit within the general legal system. The scheme envisages the use of Councils, some of which are already in existence. One, an administrative body (the Dhanbul Association) elected by all adult members of the community, is responsible for the day-to-day administration of the community. Another, a Law Council (the Garma Council), comprises two senior men from each constituent clan chosen by the clans in their own way, and relying as far as possible on the established authority structure. Other councils or incorporated bodies may also be formed,’ but the leaders see Garma Council as providing the focus for all matters of law and order. The Garma Council would have responsibility for such matters as:
(a) the preservation of friendly relations between the constituent clans which make up the community;
(b) the maintenance of Aboriginal traditional law and custom;
(c) the settlement of disputes between persons, families and clans;
(d) the maintenance of social order and discipline;
822. Community Court. Although the Garma Council would be responsible for local justice it would not itself sit as a court, but would specify the persons who should constitute ‘a community court’ in each case. Disputes may be resolved by agreement, but where this could not be achieved a court would be appointed, the membership being determined by the nature of the issue and the persons involved. There would be no office holders (such as justices of the peace or magistrates), so that no new authority structures would be imposed. The likely composition of a court where it was needed would be:
a senior member of the clan or family of the complainant;
a senior member of the clan or family of the defendant; and
a senior person (or persons) from another clan or family, chosen for their wisdom or standing in the community.
The composition of the court would presumably vary if an Aboriginal person from outside the community was involved in the dispute or if a non-Aboriginal person was involved. The court would hear matters in public, and upon reaching a decision would report to a community meeting for final approval. Court records would be maintained setting out the cases heard, the decisions reached and the penalties imposed.
823. Interaction with General Legal System. While the Garma Council and the community court would operate as an independent entity, there would be a considerable degree of interaction with the general legal system:
… if a magistrate or judge has before him a case involving a member or members of the Yirrkala community the magistrate or judge should authorise the Council to set up a Community Court to conduct a preliminary study of the case and see whether a consensus settlement of the case is practicable by the community’s own procedures. The outcome of this preliminary study would be reported to the magistrate or judge. The Council accepts that the magistrate or judge would not necessarily be bound by that outcome but expects that weight would be given to it.
Where such a preliminary hearing was not undertaken, for whatever reason, certain persons from the community would sit with the magistrate or judge to advise him about such matters as the facts of the case, attitudes to the issues, any Aboriginal traditions involved and the form and degree of the compensation or punishment.
824. Scope of the Scheme. The Garma Council considers that it should have some say in all offences or disputes involving community members. This would not necessarily mean that the Council would itself deal with all such matters. It may prefer to call in the police or refer matters to a magistrate, in which case the general law and procedure would apply. This could occur, for example, where a serious offence was involved (e.g. homicide) or an inter-clan conflict was in danger of getting out of control. However, even in these matters the Garma Council would expect there to be some continuing consultation with the outside law enforcement authorities.
825. Other Functions of Garma Council. In addition to having responsibility for constituting a ‘community court’ it is envisaged that the Garma Council would be responsible for appointing persons with police functions within the community’s boundaries, establishing rules to operate within the community to maintain social order, appointing persons to oversee and carry out any punishments imposed by the ‘community court’ and advising magistrates in cases involving members of the community.
Policing: The Dhanbul Association has in the past employed orderlies whose main responsibility was maintaining peace and quiet during the evenings. This involved controlling the entry of alcohol and unwanted visitors. It is envisaged that this would be reintroduced, and that further powers, especially the power of arrest and overnight detention or placing a person in the care of a relative, might be conferred.
Rules for the Community: The Garma Council has formulated a broad set of rules which would apply to all persons within the community, whether visitors or permanent residents. These rules, which were set out in Chapter 19, were deliberately expressed in very general terms to allow flexibility. In addition, obligations would be imposed on the heads of every clan or family to prevent wrong things being done by members of their family or clan and to assist in deterring or preventing breaches of the rules from taking place.
826. Punishment and Compensation. A range of sanctions has been proposed for the community court:
(2) committal for a period to the care of a responsible member of the offender’s clan or family for ‘re-education’;
(3) compulsory residence at a ‘homeland’ centre for a period;
(5) compulsory community work;
(6) temporary banishment from the community;
(7) overnight imprisonment in a ‘lock-up’ situated at the community.
Great emphasis is placed on compensation as a way of resolving disputes. This is in line with what may be an increasing trend in many Aboriginal communities for the greater use of compensation, usually in the form of money payments. In earlier submissions from the Yirrkala community powers for the community court to impose some traditional physical punishments was sought but with a right of appeal:
If the Court says that the accused member should be punished it can say:
(f) … that he be punished in a way traditional in Aboriginal law — but if the accused person believes the punishment would be too severe he may ask that a magistrate be asked to say whether some other punishment should be given.
In a more recent submission the request for powers to impose physical punishment was omitted. Dr Coombs argued in a separate submission that the original proposal should be accepted and that the Yirrkala community court should be allowed to impose spearing (which, he points out, is willingly accepted by the person being punished) but with provision for an appeal to a magistrate or judge.
827. Imprisonment? Power to order imprisonment, apart from overnight detention, was not requested for the Yirrkala community court. Sending a person to gaol in Darwin is not regarded by many as a punishment and in some instances can lead to disputes being exacerbated or going unresolved while the person is away in gaol. Because the gaol is situated in Darwin, the prisoner is removed from his family support (and restraint) mechanisms into an environment which often has detrimental affects. Almost invariably he returns to the community with imprisonment having had no rehabilitative effect. Periods of imprisonment — provided they are not too lengthy — may indeed provide a life with more amenities than available at home. Such persons are often in further trouble within a short time after release, thus aggravating law and order problems in the community and confirming local views that gaol is of no value.
828. Matters to be Resolved. The documentation prepared by and on behalf of the Yirrkala people outlining a community justice mechanism was intended to provide a framework for discussion rather than a definitive model. The initial proposal has been modified in the light of further discussion and reconsideration. Representatives from the Commission have visited Yirrkala to discuss the proposal. These discussions, though helpful, revealed a degree of frustration on the part of some people at Yirrkala at the perceived lack of progress over the proposals originally put forward many years previously. The Aboriginal leaders with whom discussions were held were confident of their ability to make the scheme work and perceived it as their problem to worry about any detrimental effects. But it was acknowledged that a number of matters remained to be resolved. These relate to the jurisdiction of the community court, to the degree of acceptance by members of the community of the powers of the Garma Council and community court, and to the range and administration of punishments. None of these problems is beyond resolution, but those who come into contact with the scheme will need to be clear about how it is to operate. For example, would persons living on homeland centres around Yirrkala be subject to its jurisdiction at all times or only when visiting Yirrkala? Some homeland centres may be reluctant to bring themselves within the jurisdiction of the community court. Should they be given the fight to opt out or will this undermine the entire scheme? The increase in the number of persons (including members of the Garma Council) moving from Yirrkala to homeland centres raises the practical question of how often the Garma Council will meet (or ‘want to meet) in order to consider law and order matters. If attending meetings involved significant travel it is likely that only more serious matters would justify bringing the Garma Council together. A further issue is the relationship between community security men and the Northern Territory police. For example, if someone from Yirrkala called the police for assistance should they attend or refer the matter to the local security men? Such issues need to be considered before any scheme is implemented, as they may be crucial to its success.
829. Jurisdiction. The Garma Council has sought the power to deal with all law and order problems at Yirrkala. It would thus include both minor and major offences. However in discussions with the Commission the leaders were prepared, though reluctantly, to accept that at least initially, the jurisdiction of the community court should be limited to less serious offences, and that major offences such as murder, rape and serious assaults would be dealt with by the ordinary courts (although the Garma Council should be consulted by the Court on sentence). There was however some reluctance about accepting this limitation, with the favoured option being that all cases should be processed through the Garma Council first, even if later referred to a magistrate or judge:
830. Community Acceptance. A key issue is the acceptance by members of the community of the proposed system. While it may not be unreasonable to expect individuals to abide by the new rules if they seek to reside in the community, some safeguards would be necessary; for example, an opting out provision (involving choice of trial in the magistrate’s court), or a right of appeal. Article 14(5) of the International Covenant on Civil and Political rights provides that a person convicted of a criminal offence should have the right to have the conviction and sentence reviewed by a higher tribunal according to law. Both opting out provisions and rights of appeal to outside authorities would tend to undermine the status of the Garma Council and the community court, especially if opting out was common, or if appeals were regularly upheld. Of the two, a fight to opt out is likely to be more damaging, since it prevents the exercise of local authority at all. Appeals could be expected to be rare, and there are established ways by which appeal courts defer to decisions taken by courts at first instance on issues of fact, discretion (including sentencing) and local community standards. Provided appeal courts exercise their powers wisely, there is no reason to expect that a right of appeal would undermine the system or frustrate the purposes it is intended to achieve.
831. Other Issues of Concern to the Yirrkala Leaders. In a submission to the Commission in September 1985 the clan leaders at Yirrkala repeated their wish to have the Yirrkala Scheme implemented. The specific concern raised in this submission was not the day to day law and order problems confronting the community, but rather the degree of control the clan leaders were able to exercise over their land, including permission to enter and the use of resources. There was also concern over control of their own people and their culture outside Aboriginal land:
The Garma Council should also be recognised as having control over Yolngu persons and the use of Yolngu culture outside the Yolngu area, and if any financial benefit accrued, it should be directed to the Garma Council for disposition. The Garma Council should have brought before it all persons, including non-Aborigines, who enter Yolngu land and/or use its resources, and it should have the power to apply sanctions (generally compensation or fine) if appropriate. Compensation is the type of sanction most likely to be applied, although the Garma council should have the power to use other sanctions.
The authority to control Aboriginal people and culture, and entry to and activities on Aboriginal land, raises many of the questions of autonomy and self-government discussed in paragraphs 809-811. It also raises questions as to the operation of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and the Aboriginal Land Act (NT). However the issue of control of Yolngu persons and Yolngu culture outside the Yolgnu area is more complex. Attempts to protect Aboriginal culture have been made in both Federal and State legislation. The various Acts protecting Aboriginal sacred sites and the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1983 (Cth) are examples of this. The Commission recognises the importance of Aboriginal land and the protection of Aboriginal culture. But these matters are outside the Commission’s Terms of Reference and are not dealt with in any detail in this Report.
832. Assessment and Recommendations. The Yirrkala scheme is more elaborate and seeks to rely to a far greater degree on traditional mechanisms than the Western Australian or Queensland schemes. It would, it is hoped, combine aspects of a court enforcing local laws with traditional authority structures. The principal feature of the scheme is that it is an Aboriginal initiative, although there has been outside assistance in articulating and presenting it and in spelling out some of the details. Though there are difficulties on particular issues, and a number of matters to be resolved, in the Commission’s view the decisive factor is the combination of:
the continued difficulties of magistrates’ courts in processing Aboriginal defendants (and the associated gross over-representation of Aborigines in the criminal justice system); and
the existence of the Yirrkala scheme as an articulated scheme for local administration of justice, proposed by or on behalf of the local people.
It is clear from the submissions received from the Yirrkala community and from discussions the Commission has had with the clan leaders at Yirrkala that one of their major concerns is the way the general legal system operates for Yolgnu people. The clan leaders are not seeking the exclusion of the police and the courts from their land. What they are seeking is an input into the general legal system and a recognition by the general legal system of local Aboriginal customary laws and mechanisms. To some extent these needs may be met by the introduction of the scheme operating at Galiwin’ku. But even if steps are taken to set up this scheme at Yirrkala the Commission believes that serious consideration should be given to adopting the scheme developed by the Yirrkala people on a trial basis. Assuming that the appropriate authority is the Northern Territory Government, it is recommended:
(2) If so, that the scheme be implemented, with appropriate legislative backing, for a sufficient trial period (at least three years); and
(3) That the Yirrkala people be given independent advice and such other support as they may require in carrying out the scheme.
If this is to occur it is important that the proposal be implemented in a thorough-going way, and with as few derogations from the model sought by the Yirrkala people as possible.