Administrative Responses

52. Northern Territory Responses. The Commonwealth Government, acting in response to public pressure and on the advice of Sir Hubert Murray introduced some wide-ranging reforms. In 1933, juries were abolished in the Northern Territory for all offences except those punishable by death.[89] The court was given a discretion not to apply the death penalty to an Aborigine convicted of murder, but could impose such a penalty as just and proper in the circumstances. In determining the appropriate sentence the court was able to take into account any relevant native law and custom and any evidence in mitigation.[90] According to Elkin (writing in 1945), the potential of this provision was not fully realised because personnel with an adequate knowledge of customary law, anthropology and psychology were not available.[91] There were also other difficulties with the legislation. Some judges were reluctant to take native custom into account in cases involving a white victim.[92] Justice Wells in Tuckiar’s case (probably the first case under the legislation) was reported to have described the Crimes Ordinance 1934 (NT) as ‘ill-considered legislation hampering both judge and counsel’.[93] In 1946, a judge hearing a case involving a tribal killing at Milingimbi was reported to have told the jury that ‘the idea pre valent in the community that native wrong-doers should not be punished by the white man’s law was sloppy sentimentality and should be discouraged’.[94] In 1939 the Evidence Ordinance (NT) removed the requirement for Aborigines to take an oath before giving evidence in civil and criminal matters[95] and enabled Aboriginal testimony to be taken through an interpreter, reduced to writing and used in evidence in later proceedings without further appearance by the witness. In the same year, EWP Chinnery, the Director of Native Affairs in the Northern Territory and Commonwealth Adviser on Native Affairs, announced plans for the introduction of Courts for Native Matters. The Native Administration Ordinance 1940 (NT) enabled the establishment of such courts, limited in jurisdiction to matters arising between Aborigines and between the Administration and Aborigines. Draft regulations were prepared, similar to those applying to the village courts in Papua New Guinea at the time. Patrol officers were sent to Sydney University for training in anthropology, native administration and law. However the war years and post-war difficulties effectively put an end to the proposal, which was not proceeded with.[96]

53. Western Australian Responses. Malnutrition and disease, the continuing decline in the Aboriginal population in Western Australia, the failure to pay Aborigines adequate wages (if any at all, north of the Pilbara) and criticism of the conditions under which lepers were taken by lugger to Broome from Darwin, helped to persuade the Western Australian Government to establish a Royal Commission, headed by a Police Magistrate, D Moseley. Moseley’s task was to inquire into the ‘social and economic conditions of Aborigines’ and including questions relating to the trial of Aboriginal offenders, the administration of the Aboriginal Department and recent allegations of mistreatment.[97] Moseley’s Report, published in 1935, included a discussion of the problem of:

the bush native who commits what under our law would be a crime but which is perfectly in order according to his tribal customs — which amount to his law. In such a case, the whole procedure, from the moment of arrest, seems inappropriate.[98]

Nonetheless Moseley rejected any customary law defence for criminal charges, referring to the conflict in the role of the police who must, at the same time, arrest and protect Aborigines.[99] In his view, imprisonment was not an appropriate form of punishment, whipping in front of the members of the tribe being preferable. A proposal had been made for an Aboriginal court, to consist of a resident magistrate, the Chief Protector or his nominee, some person to be nominated by the minister, and the head man of the tribe to which the accused belonged, but Moseley rejected this idea, preferring instead the establishment of special courts for trial of certain natives.[100] He stated:

For the North of the State, I should prefer to see the divisional protector, if a man with the qualifications … can be obtained, clothed with magisterial powers, so that on his patrol he could, on the spot, investigate complaints, explaining when the white point of view conflicts with the black, and exercising his influence over the members of the tribe.[101]

In the event the kind of special court preferred by the Chief Protector, but not supported by Moseley, was established in 1936 by the Native Administration Act 1905-1936 (WA).[102] This Act was largely concerned with the reorganisation of the Aborigines Department in Western Australia, and was otherwise thoroughly assimilationist in nature.[103] The court was to consist of a special magistrate, nominated by the Governor, a headman of the accused’s tribe if practicable, and the Commissioner of Native Affairs or a Protector nominated by him. Its jurisdiction was limited to offences committed by Aborigines against Aborigines. The Act allowed for customary laws to be taken into account in mitigation of punishment.[104] These courts were ad hoc courts, to be established by proclamation when the need arose. They were in fact constituted on a number of occasions between 1936 and 1954 when the relevant provisions were repealed.[105] There was a maximum penalty of 10 years for offences previously punishable by death. The proceedings were final and without appeal.’[106] The Act also provided that offences committed by whites on Aborigines (which were not part of the jurisdiction of the special court) should be tried summarily by a magistrate, thus abolishing jury trials.[107] Perhaps more significant was a provision[108] which prohibited entirely the obtaining, and the use in evidence, of admissions and confessions of Aboriginal defendants for offences punishable by death or imprisonment. Section 61 also provided that no plea of guilty could be entered for any offence unless the court was satisfied as to the accused’s understanding of the nature of the occasion, his awareness of his fight to trial, and that he had acted without duress. The Protector’s approval was required before such a plea could be entered.[109] Despite these safeguards, Elkin was critical of what he considered to be excessive power to imprison (up to 10 years) given to the magistrates, on the grounds that there was no appeal, that the power was not given to justices of the peace in respect of non-Aboriginal defendants, and that it far exceeded that exercised by the Papua New Guinea courts at the time.[110]

54. The Conference of Protectors. 1937. This burst of activity led to the question of Aboriginal courts being discussed by the States and Commonwealth at the 1937 Protectors’ Conference.[111] The Conference resolved:

That the jurisdiction of the Court for Native Affairs shall be confined to cases in which both parties are natives.

That mixed cases — those in which a native is involved against a white man or a man of other race — be dealt with by the ordinary courts of the State or territory.

That natives be not allowed to plead guilty in any case, except with the approval of the Chief Protector.

That a native charged before a white man’s court shall have adequate representation by counsel or a protector, or both.

That no confession or statement before trial shall be sought or obtained, or, if obtained; it shall be disregarded by the court …

That for the purpose of this resolution a native shall be a native as defined by this conference.[112] The definition of ‘native’ was to be based on the definition contained in the Native Administration Act 1905-1936 (WA), that is, ‘a person of Aboriginal descent with a quarter or more of Aboriginal blood’.[113]

The resolution relating to native courts was rather inconclusive. No vote appears to have been taken on the question whether such courts should be established, the Commonwealth, Queensland and Western Australian administrations being the only participants in the debate.[114] The Commonwealth representative considered that native courts are ‘all right when the case is one between natives[115] but stated that the Commonwealth had not established such courts for offences between natives in the Northern Territory.[116] Bleakley, the Chief Protector of Aboriginals in Queensland, advised the conference that the Queensland Government had rejected the idea of a special court. Instead guilty pleas by Aborigines were restricted and special provision for legal defence and pleas in mitigation was made.[117] Neville, the Commissioner for Native Affairs, Western Australia, argued that:

A special court for natives should deal only with offences between natives. Where white men are concerned, the trial should be in the ordinary courts of the State … In my opinion, not only tribal offences, but all offences between natives, including charges of murder, should be heard before a native court, such court to consist of a special magistrate appointed by the Crown and a nominee of the Chief Protector. It should be given practically a free hand. Difficulty was experienced in obtaining convictions by juries of white men charged with assaulting natives. Invariably, the white man was acquitted, and consequently juries have been abolished in such cases. In Western Australia, all such cases are now heard by a magistrate; they are not dealt with by Justices. Tribal practice is accepted as evidence in a native court)[118]

55. Queensland Aboriginal Courts. In Queensland the Aboriginals Preservation and Protection Act 1939 provided for the establishment of Aboriginal police on Reserves,[119] gave formal legal status to Aboriginal courts established on Reserves,[120] and provided that the Superintendent of the Reserve could constitute the court.[121] These courts were intended to maintain order on the Reserves and to hear charges for breaches of the Aboriginal regulations. Dealing with minor cases they were different in nature and purpose from the Western Australian special courts.[122] They continue still in the form of Queensland Aboriginal Courts: as such they are dealt with in Chapter 29.[123]

56. Outcome of the 1930s Debates. During the 1920s and 1930s there was thus a considerable degree of interest in the reform of the law as it related to Aborigines. But many of the reforms suggested or introduced at this time were short lived. Although a few speakers favoured them, no resolution directly supporting systems of native courts was passed by the 1937 Conference of Protectors.[124] The Northern Territory Courts for Native Matters never sat.[125] The Western Australian Native Courts sat on only a few occasions from 1939 before ceasing to exist in 1954.[126] The Queensland Aboriginal Courts alone have continued to exist.[127] The longest surviving of the Northern Territory changes — the sentencing discretion in Aboriginal murder cases — was repealed in 1983.[128]

57. From the 1940s to the 1970s. Questions of Aboriginal affairs policy, including the recognition of Aboriginal tradition, receded as matters of public concern or controversy during and after the Second World War. The framework of policy in the pre-war years had remained, as has been seen, very much a paternalistic one of protection, with little general concern for Aboriginal rights or Aboriginal customary laws.[129] Various factors, including the obvious failure of those policies to achieve the ‘advancement’ or to further the interests of Aboriginal people, eventually led to the dismantling of the institutions of protection, but the movement was towards assimilation, that is, a policy not merely of treating Aborigines as equal with all other Australians, but of attempting to make Aboriginal life-styles the same in all respects as those of the general community.[130] Against that prevailing opinion there was no movement towards recognising distinct Aboriginal traditions or ways of life. Such recognition as existed in the 1950s and 1960s was essentially local or particular, the result of judicial decisions or administrative acts in specific cases, which did not challenge the underlying policies.[131]

[89]Criminal Procedure Ordinance 1933 (NT).

[90]Crimes Ordinance No 10 of 1934 (Cth) s 6A.

[91]Elkin (1947) 201-2.

[92]Elkin (1947) 202.

[93]Sydney Morning Herald, 7 August 1934, cited Elkin (1947) 203. See para 51.

[94]The Northern Standard, 25 October 1946, cited by Elkin (1947) 204.

[95]Evidence Ordinance 1939 (NT) s 9A, repealed by Oaths Ordinance 1967 (NT). Thereafter the only provision was s 25A of the Ordinance, allowing evidence to be given by persons incapable of comprehending the nature of an oath or affirmation.

[96]See para 56, and see further para 721.

[97]WA, Report of the Royal Commission appointed to Investigate. Report and Advise upon Matters in Relation to the Condition and Treatment of Aborigines (Parl Paper 2/1935) vol 1, 23.

[98]id, 18.

[99]id, 19.

[100]id, 23.

[101]id, 19.

[102]s 59D, inserted by Act No 43 of 1936, renumbered s 63 in the 1936 reprint, s 64 in the (unpublished) 1941 reprint.

[103]Rowley (1978) 303, 312; Hasluck, 160-1.

[104]s 63(2).

[105]Elkin states that in 1943 such courts were convened twice: Elkin (1947) 206. Eggleston details six cases heard between 1947-52 at Broome: Eggleston, 284-5. See further para 721.

[106]For the procedure to be adopted by the court see Elkin (1947) 206.

[107]Originally s 59C when inserted in 1936, this provision was renumbered as s 62 and s 63 respectively in the 1936 and 1941 reprints. It was repealed in 1954.

[108]This was inserted as s 59A(1) by the 1936 Act, and was renumbered as s 60(1) and s 61(1) respectively in the 1936 and 1941 reprints.

[109]These provisions dated back to 1911, when s 59A was inserted in what was then called the Aborigines Act 1905.

[110]id, 208. cf also Hasluck, 160.

[111]For the background to this Conference see para 26.

[112]Aboriginal Welfare — Initial Conference of Commonwealth and State Aboriginal Authorities, held at Canberra, 21st-23rd April, 1937, AGPS, Canberra, 1937, 31.

[113]id, 21.

[114]id, 30, 31.

[115]id, 30.


[117]id, 31.


[119]s 12(4).

[120]Courts were to be established by regulation: s 12(3).

[121]s 10(1). Elkin (1947) 209 was critical of the fact that the Superintendent had both magisterial power and appointed the police.

[122]As Bleakley pointed out in 1937: Conference Report, 31.

[123]See para 723-46.

[124]See para 54.

[125]The Native Administration Ordinance 1940 (NT) was never proclaimed and was repealed by Ordinance No 16 of 1964.

[126]The Native Welfare Act 1954 (WA) repealed much of the Native Administration Act 1905-1936 (WA), including s 63. For the modification and later replacement of the provisions dealing with Aboriginal evidence, see para 558n.

[127]See para 55.

[128]The Criminal Code 1983 (NT) s 164, removed the discretion as to penalty for murder, established by the Criminal Procedure Ordinance 1933 s 6, and the Crimes Ordinance 1934 (Cth) s 6A. See further para 519-20.

[129]See para 25.

[130]See para 26-7.

[131]Many of the issues faced by courts in remote areas in the 1950s were canvassed by Kriewaldt J in an article published posthumously: `The Application of the Criminal Law to the Aborigines of the Northern Territory of Australia’ (1960) 5 UWAL Rev 1. For the 1960s see especially E Eggleston: though published in 1976 the substance of the work was completed in 1970 and the field research was done in the mid-1960s. On Eggleston’s work see the notes by L Waller and CD Rowley, `Elizabeth Eggleston’ (1976) 3 Monash UL Rev 1, 5.