880. Summary of Conclusions and Recommendations in this Part. The conclusions and recommendations contained in this Part are, for the reasons given less precise and definite than the conclusions and recommendations in other parts of this Report. Those conclusions and recommendations can be summarised as follows:
Problems of ‘law and order’ on Aboriginal communities, and of local involvement in the criminal justice system, involve issues of local self-government or autonomy which extend beyond the recognition of Aboriginal customary laws, or increasing Aboriginal participation in local courts or police forces (para 689-90, 809-10). Schemes such as the Northern Territory Community Government Scheme are appropriate (para 760), although if Aboriginal communities are to exercise broader responsibilities, adequate support and enforcement powers are necessary (para 762).
In many Aboriginal communities, unofficial methods of dispute resolution operate alongside the general legal system. Local resolution of disputes in these kinds of ways should be encouraged and supported (para 720).
There is only limited scope or demand for new official local justice mechanisms in Aboriginal communities (para 767, 813, 817).
There should be no general scheme of Aboriginal courts established in Australia (para 767, 813, 817, 819, 838).
Aboriginal courts or other official bodies may be appropriate in certain cases. If courts or similar bodies are set up it should only be at the instigation of and after careful consideration by members of the Aboriginal community concerned (para 805, 817). In considering such proposals, it is necessary to consider a wide range of alternatives, including special policing arrangements and dry area legislation. Justice mechanisms are only one avenue (para 756).
In addition there are certain basic requirements for courts or similar official bodies (para 818):
· 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, e.g. by way of appeal.
· 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’.
· The community should have some voice in selecting the persons who will constitute the court, and appropriate training should be available to those selected. In minor matters there need be no automatic right to legal counsel, though the defendant in such cases should have the right to have someone (e.g. a friend) 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 will need appropriate support facilities.
· There should be regular reviews of the operation of any such court, undertaken in conjunction with the local community.
In establishing such courts care should be taken to minimise conflict with or the undercutting of local kinship and’ authority structures. Special attention needs to be paid to the composition of the court, which may need to be variable depending on the identity of those involved in cases before the court (para 742, 758, 855-6).
The Queensland Aboriginal courts should not be continued without broad local support (para 746). In addition:
· the Community Services (Aborigines) Act 1984 (Qld) should be amended to clarify the arrangements for community self-government and to avoid overlap with ordinary local government arrangements (para 743, 746).
· encouragement should be given to local Aboriginal councils to draft appropriate by-laws (rather than simply adopting a central model) (para 746).
So far the Aboriginal Communities Act 1979 (WA) has been applied only to more remote communities. That scheme is not a recognition of Aboriginal customary laws or of traditional authority. The scheme may be more successful in less traditional communities. In reviewing the Act, consideration should be given to its extension to urban areas and town camps (para 753, 756).
It is too early to assess the success of the Northern Territory Justice (Courts) Project. That project should be subject to an independent review in due course (para 764).
The Yirrkala Scheme should, if it is still sought by the Yirrkala people, be adopted for a sufficient period (at least 3 years) on a trial basis. The Yirrkala people should be given independent advice and appropriate support in establishing the scheme (para 832).
Consideration should be given, in any State or Territory where a local justice scheme is established, to a legislative provision allowing courts to defer to the operation of the scheme through, for example, adjournment or diversion (para 834).
There is scope for administrative recognition of Aboriginal customary laws. For this and other reasons greater knowledge and understanding on the part of criminal justice professionals in their dealings with Aborigines is needed (para 835).
Perhaps the greatest scope for administrative recognition rests with the police. In particular:
· There needs to be better communication between police and local Aboriginal communities about policing arrangements for those communities (para 805, 807). Police liaison committees can assist, but they should have broad terms of reference and access to senior police on issues of policy (para 872).
· There should be greater encouragement for some forms of self-policing, as an adjunct to regular police, including in urban areas (para 862-3, 866).
· Police training on Aboriginal issues should not be confined to initial or induction courses. The emphasis should be on post-induction and further education courses (especially after officers have had some experience of policing in Aboriginal areas) (para 876-7).
Police aide schemes should be seen as essentially temporary measures, with the longer term emphasis on self-policing, on increasing the number of Aborigines in regular forces, and on other measures (para 850, 865, 867).
In particular, police aide schemes should not be introduced without a clear articulation of needs and aims (para 857) and clear local support (para 853). If they are introduced there should be:
· some facility for promotion of aides (after any necessary training) into the regular force (para 851, 854, 855).
· provision for periodic review (para 865).
Police aides should have adequate police powers and support, and should not be seen as second class police (para 853).
There should be careful selection of police officers to serve in areas with large Aboriginal populations, including efforts to increase the number of women police officers serving in those areas (para 877).
Aboriginal legal services should be encouraged and assisted to provide community legal education for Aboriginal communities (para 878).
No single approach or solution exists to the ‘problems of law and order’ in Aboriginal communities (para 838). Consideration should however be given to establishing a body to assist Aboriginal communities, police and government departments in the consideration of proposals, and in their implementation and review. Such a body should have an Australia-wide mandate, but could be a federal agency, a federal-State agency, a private body or preferably an Aboriginal agency linked to the Aboriginal legal services. Its terms of reference should not be limited to Aboriginal courts or justice mechanisms (para 839-41). This issue is discussed further in Chapter 38.
In other respects, Commonwealth involvement in this area, in particular having regard to constitutional constraints, is necessarily indirect (para 808).