49. The Need for Change. By the 1920s the problems of the frontier had changed from those of first contact to those of coping with the reality that fairly large Aboriginal populations had survived settlement. What was to be the future of Aboriginal society? What institutions should be created for Aborigines? At the time conditions for Aborigines were particularly bad. Poverty, ill health and malnutrition were endemic. Events such as the Kimberley Massacre (1927), the mistreatment of lepers in the far north-west of Western Australia, clashes between Aborigines and the Japanese in Arnhem Land, and disagreement over the provision of minimum wages for Aborigines employed in the pastoral industry, captured public attention. In 1928 the Commonwealth Government responded to pressure from, among others, the Association for the Protection of Native Races, by requesting the Queensland Chief Protector, JW Bleakley, to report on conditions in central and northern Australia. His report described the lack of effective shelter and clothing, the problems of malnutrition and health, and the operation of institutions provided for half-caste Aborigines. Bleakley made only passing comments on the injustice of applying British law to crimes involving tribal law, and on the possibility of some form of tribal court. At this time the Western Australian Government set up a Royal Commission into Aboriginal conditions under Moseley. Later the Queensland Government set up Aboriginal Courts and Aboriginal police on the reserves. The efforts of all State Premiers eventually led to the calling of the 1937 Conference of Protectors involving Commonwealth and State administrators.
50. Attention Given to Aboriginal Customary Laws. Meanwhile attention was also being paid to the possibility of reform of the criminal law as applied to Aborigines. In 1931 the Commonwealth Minister for Home Affairs (Interior), the Hon A Blakeley MHR, advocated that for the Northern Territory Aborigines, there should be:
a simple tribunal, presided over by a person or persons with a thorough knowledge of native customs, who can sift native evidence. I do not want a court restricted by all kinds of legal technicalities and procedures.
The following year, the Hon Archdale Parkhill MHR, Blakeley’s successor as Minister for the Interior, was advised by Sir Hubert Murray that there should be no legislation abrogating the general law to allow for the operation of native law. British law must prevail, as was the practice in Papua. Murray considered that customary law was sufficiently taken into account in the Magistrates Court and the Supreme Court in the Northern Territory by way of ‘substantive defence as negativing criminal intent or, more frequently in mitigation of sentence’. But he did suggest some changes in the Northern Territory, including machinery to ensure that evidence of native custom could properly come before the court in mitigation of sentence, a greater emphasis on Aboriginal customary law in determining criminal intent, and regular sittings of the Supreme Court in Arnhem Land, the Roper and McArthur River districts, the Daly and Victoria River districts, Tennant Creek, Darwin and Alice Springs. Murray also urged the abolition of the jury system for offences between Aborigines, and the use of assessors or special juries in cases where Aborigines and non-Aborigines were involved. Similar calls for reform were made from a number of quarters. In 1933, a panel of 60 jurors presented a petition to Acting Judge. Sharwood of the Supreme Court in Darwin calling for Aborigines to be tried in accordance with customary law in circumstances where the offence was known to be of a tribal nature. They pointed out that very often tribal elders were charged with an offence for inflicting punishment on another Aborigine in accordance with customary law. The jurors sought:
the establishment of a tribal court, especially created to deal with cases of the nature abovementioned, functioning under milder laws of punishment than our present criminal system provides. It is known that if one Aboriginal unlawfully and violently injures another, his tribe will see to his proper punishment, irrespective of what the white man does to him. It is strongly urged that the whole question should be investigated and reported to the Government by men who have lived amongst the natives and have knowledge of their codes, and by men who have studied their laws and customs from a scientific point of view, and by men who are genuinely and sympathetically interested in the Aborigines. Such men are the likeliest to point out the best manner in which to achieve the desired result. Leaving the matter in the hands .of those who have no knowledge of the Aboriginal would only result in a remedy worse than the disease.
In the same year the Aborigines Friends’ Association argued that:
In all cases of breaches of law in which Aborigines are concerned, full consideration should be given to tribal traditions and customs, in order that full justice may be done. It would be the duty of the field officers not only to be familiar with tribal language, laws, traditions and customs, but to explain to the Aboriginal so much of the white man’s law as he is expected to obey. Many casa could very well be dealt with in the locality in which they arise, whereby many complications and much expense and inconvenience would be avoided.
In addition, the press and missionary and other bodies made representations on the need for a positive policy on Aborigines to the Commonwealth.
51. Tuckiar’s Case. At this time attention focused on a case involving the killing of a white man, Constable McColl, at Woodah Island in the Gulf of Carpentaria by an Aborigine named Tuckiar. The incident occurred against a background of considerable tensions within the Aboriginal communities in Arnhem Land, due in part to increased mission activities and to the operation of Japanese pearlers. Three Japanese fisherman were killed in 1932 by a group of Aborigines, and another five were killed in 1933. Constable McColl and three other constables were sent to inquire into these killings: during this expedition McColl was fatally speared. Three Aborigines were sentenced to 20 years gaol by Justice Wells in 1934 for their part in the killings. Protests were made about comments the trial judge was reported to have made, but it was the trial and conviction of Tuckiar, for the murder of McColl, that produced the greatest indignation. Justice Wells sentenced Tuckiar to death. In doing so he refused to take account of the accused’s background and customs, despite recent legislation specifically allowing him to do so. This refusal to take account of mitigating circumstances where a white man had been killed, and the fact that similar difficulties had arisen in at least four other cases, led to a large public meeting at Kings Hall, Sydney in 1934 and the involvement of the Prime Minister and the Australian High Commissioner in London. Public pressure led ultimately to the case being appealed to the High Court. The Court unanimously quashed the conviction, concluding among other things, that the judge’s comments on the accused’s failure to give evidence amounted to a misdirection. It also held that evidence of McColl’s good character should not have been allowed. As the joint judgment said:
the purpose of the trail was not to vindicate the deceased constable but to inquire into the guilt of the living Aboriginal … The prisoner should not have been exposed to the danger of the jury’s regarding the matter as a dilemma between an imputation on the dead and the conviction of an Aboriginal. That danger is likely to have been much increased by the manner in which the Judge expressed himself …
The conviction was quashed, the Court holding that the public statement by Tuckiar’s counsel precluded the ordering of a new trial. Tuckiar was released but disappeared on his way home. In his foreword to White and Black in Australia, published in London in 1935, Burton commented:
The story of that thai is pathetic and tragic reading; but the glaring injustice and inhumanity of it aroused afresh the indignation of Australia.
With public feeling running high on the perceived injustice of a strict application of British laws to Aborigines, a number of steps were taken or proposed by the Commonwealth Government in the Northern Territory, and by several States, to make the criminal law more responsive to Aboriginal needs. This was done by reforms at the substantive and at the sentencing level.
Rowley (1978) 357.
Rowley (1978) 255-304.
JW Bleakley, The Aboriginals and Hay’ Castes of Central Australia and North Australia, Commonwealth of Australia, Parl Paper 21/1929.
See para 53.
See para 55.
See para 26, 54.
The Aborigine’s Protector (Sydney, 1936) vol no 3, 5, cited by AP Elkin, ‘Aboriginal Evidence and Justice in North Australia’ (1947) 17 Oceania 173, 199.
 Sir Hubert Murray to Mr Archdale Parkhill (Minister for the Interior), 29 June 1932, cited Elkin, (1947) 204. Murray was Chief Judicial Officer of British New Guinea from 1904 and became the first Lieutenant-Governor of the territory under Australian administration in 1908, a position he held until his death in 1940. See AP Elkin, ‘The Place of Sir Hubert Murray in Native Administration’ (1940) 12 Aust Q 23.
The Daily Telegraph (Sydney) 13 April 1933, cited Elkin (1947) 200.
Seventy-Fifth Annual Report (1933) 25, cited Elkin (1947) 200. See also JS Needham, White and Black in Australia, National Missionary Council for Australia, London, 1935, 167.
Elkin (1947) 200. See also Rowley (1978) 295.
See further D Thomson, Donald Thomson in Arnhem Land, Currey O’Neil, 1983, 19-27; VH Hall, Dreamtime Justice, Rigby, Adelaide, 1962; Rowley (1978) 290-7.
The Argus (Melbourne) 2 August 1934; Rowley (1978) 291-2.
The Argus, 12 July, 2 August 1934; The Herald (Melbourne) 17 May 1934, cited Rowley (1978) 292.
Criminal Procedure Ordinance 1933 (NT) s 6; Crimes Ordinance 1934 (NT) s 6A. See para 52.
AP Elkin, ‘Aboriginal Policy 1930-1950: Some Personal Associations’ (1957) 1 Quadrant 29-30, cited Rowley (1978) 295.
(1934) 52 CLR 335, 344 (Cavan Duffy CJ, Dixon, Evatt, McTiernan JJ).
id, 345 (Cavan Duffy CJ, Dixon, Evatt, McTiernan JJ), 353 (Starke J). In addition, the whole court was critical of the conduct of Tuckiar’s counsel in making a damaging public statement to the court. This was to the effect that Tuckiar had admitted that one of two reported statements by witnesses was true and thus the allegation that McColl had committed adultery with one of Tuckiar’s wives was false: id, 346, 354.
See Berndt & Berndt (1954) 134-52 for further details of the case.