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Narrative Report to Law Reform Commission of Australia on Results of Field Trip to the Northern Territory Pursuant to the Reference on Customary Law

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Narrative Report to Law Reform Commission of Australia on Results of Field Trip to the Northern Territory Pursuant to the Reference on Customary Law Narrative Report to Law Reform Commission of Australia on Results of Field Trip to the Northern Territory Pursuant to the Reference on Customary Law Item Type Report Authors Conn, Stephen Citation Conn, Stephen. (1980). Narrative Report to Law Reform Commission of Australia on Results of Field Trip to the Northern Territory Pursuant to the Reference on Customary Law. Submission to the Law Reform Commission of Australia under Ford Foundation grant. Anchorage: Justice Center, University of Alaska Anchorage. Publisher Justice Center, University of Alaska Anchorage Download date 04/10/2021 12:43:12 Link to Item http://hdl.handle.net/11122/10725 Scholarworks@UA — UAA Justice Center July 1980 Narrative Report to Law Reform Commission of Australia on Results of Field Trip to the Northern Territory Pursuant to the Reference on Customary Law Stephen Conn Suggested citation Conn, Stephen. (1980). Narrative Report to Law Reform Commission of Australia on Results of Field Trip to the Northern Territory Pursuant to the Reference on Customary Law. Submission to the Law Reform Commission of Australia under Ford Foundation grant. Anchorage: Justice Center, University of Alaska Anchorage. Summary This submission to the Law Review Commission of Australia (later the Australian Law Review Commission) makes recommendations regarding to what extent existing courts or Aboriginal communities themselves should be empowered to apply Aboriginal customary law and practices in the trial, punishment, and rehabilitation of Aboriginal offenders. The report is based on field interviews in six Aboriginal communities in the Northern Territory of Australia as well police, magistrates, solicitors, legal aid field officers, the Crown Solicitor of the Northern Territory; and community advisors and staff of the Department of Aboriginal Affairs. The report discusses the relationship between indigenous law and the western law system derived from the British common law system as one of legal pluralism — more than on legal process at work in the same environment at the same time — and draws comparisons between legal pluralism as it exists in Australia with the situation in Alaska. Additional information The Australian Law Reform Commission's inquiry into Aboriginal Customary Laws was conducted from 9 February 1977 to 12 June 1986. Its focus was on whether it would be desirable to apply, either in whole or in part, Aboriginal customary law to Aboriginal and Torres Strait Islander peoples — generally or in particular areas or to those living in tribal communities only. The inquiry's findings were reported in: Recognition of Aboriginal Customary Laws. ALRC Report 31. Australian Law Reform Commission, 11 Jun 1986. UAA is an AA/EO employer and educational institution and prohibits illegal discrimination against any individual: www.alaska.edu/titleIXcompliance/nondiscrimination. NARRATIVE REPORT TO LAW REFORM COM­ MISSION OF AUSTRALIA ON RESULTS OF FIELD TRIP TO THE NORTHERN TERRI­ TORY PURSUANT TO THE REFERENCE ON CUSTOMARY LAW NARRATIVE REPORT TO LAW REFORM COM­ MISSION OF AUSTRALIA ON RESULTS OF FIELD TRIP TO THE NORTHERN TERRI­ TORY PURSUANT TO THE REFERENCE ON CUSTOMARY LAW Stephen Conn, Esq. Professor of Justice University of Alaska Anchorage, Alaska JC 8023.01 July, 1980 Stephen Conn* Narrative Report Introduction I was invited to spend five weeks in Australia in order to 1/ visit Aboriginal settlements in the Northern Territory- and offer practical advice regarding initiatives which might be taken in response to a Parliamentary reference to the Law Reform Commission of Australia to ascertain: A. Whether, and in what manner, existing courts deal­ ing with criminal charges against Aborigines should be empowered to apply Aboriginal customary law and practices in trial and punishment of Aborigines. B. To what extent Aboriginal communities should have the power to apply their customary law and prac­ tices in the punishment and rehabilitation of Abo­ rigines; and C. Other related matter. The Law Reform Commission had conducted extensive and lengthy field studies of Aboriginal customary law in Western Australia, Queensland and the Northern Territory. It had also drawn upon several anthropologists, experts in Aboriginal culture and in legal anthropology, among them Nancy Williams, Diane Bell and 3/ W. Stanner.- In addition, staff researchers had reviewed several extant experiments in integration of Aboriginal law ways and Australian law. Darwin Magistrate George Galvin employed clan represent·­ atives in Pt. Keats as lay assessors to advise him on sentencing of youthful offenders. Alice Magistrates Barrette and Towers consulted settlement councils for the same purpose at Papunya, Yuendumu, Herrnannsburg and Hooker Creek. Magistrate Tom Pauling had consulted with the Garma Council, a traditional council, at Yirrkala and had been prepared to name clan heads as justices of the peace until advised against it by local leadership and by H. C. Coombs, a leading advocate of re- 4/_ form of Aboriginal policy.- Other reforms in the territorial delivery of justice services were underway during my visit. At the police level, the Northern Territory had embarked on an expansion of police presence into ex-government settlements and missions. A police aide program for Aboriginals had been designed and implemented. Aboriginal Legal Aide had for about five years deployed Aboriginal field officers as interpreters and as investigators in Aboriginal communities. At the supreme court level, new court decisions had articu­ lated operating procedures for interrogation of Aboriginal pris­ oners which involved the use of a "prisoner's friend, " a second Aboriginal person to interpret for the defendant and to put the �/ defendant at ease. Finally, several legislative reforms had some present or prospective impact on the issue addressed by t�e Law Reform Com­ mission. First, public drunkenness and vagrancy statutes had been replaced in practice by protective custody, a provision which allowed police to take into short-term custody inebriated persons who in the opinion of the officer posed a danger to them­ selves or the community. Second, new territorial liquor legis- -2- lation allowed communities to ban liquor or to limit its use in the settlements to specific persons or to specific times and places. Finally, another piece of territorial legislation provided that community councils could make ordinances to further enforcement of territorial liquor laws. Separate Native courts existed under the aegis of the Abo­ riginal Affairs Department of Queensland, courts not unlike law and order courts on many American Indian reservations. New Guinea had developed custom courts attractive to many European Australians because of their prior involvement in New Guinea. Serving as a backdrop to ongoing experimentation, reform and research in the field are unresolved issues which have great bearing on domestic law and order and the role of custom and law in small settlements. Chief among these is the ultimate legal authority of rural Aboriginal groups over land occupied by them since prehistoric times. The issue of land rights is the one to which Aboriginal groups are addressing paramount attention. The relationship of this issue to law and order or disputing issues and the role of custom stems from the importance of being on one's own land to social ordering generally in traditional Aboriginal communities. Therefore, it was necessary for me not only to formulate new proposals, but also to understand and evaluate current, projected and near-recent experiments already underway. It was also neces­ sary for me to have some basic understanding of the land rights phenomenon. -3- Finally, and most importantly, it was necessary for me to learn something of the legal history of Aboriginals and the present day, daily experience of Aboriginals with law. After preliminary discussions, I requested of Commissioner DeBelle that my field work focus upon an examination of the factors which result in the intervention of the Australian criminal investigation system and factors which result in prosecution together with a discussion of means whereby the interface between the Australian legal system and the Aboriginal legal system can be screened or brokered. I chose this relatively narrower focus upon the interplay between custom and law and further narrowed my examination of the Australian legal process to what is termed the summary justice (non-felonious) level. This excluded from examination the role of the territorial supreme court because the Australian legal process is experienced more generally by Aborigines through the work of police and magistrates. Both normal and experimental activity by police and magistrates were considered. The physical presence and daily decisions made by Australian police and magistrates establish the context in which reforms must be implemented. One cannot evaluate the actual or potential role of customary law outside of the context of real life experi­ ence with Western law, both present and historical experience. From th�t experience, both positive and negative, emerges realistic assessments by Aboriginals as to the future role of customary law. From that same experience a researcher may predict -4- the probable response of legal bureaucracies to reforms articulated at the parliamentary level. The Field Investigation and Its Results Six Aboriginal communities were visited. These were Papunya, Areyonga and Haast Bluff near Alice Springs; Beswick and Banyilli near Katherine and Yirrkala near Nhulunbuy.
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