Douglas, Heather --- "Assimilation, Lutheranism and the 1950s Justice of Kriewaldt" [2004] AUJlLegHist 12; (2004) 8(2) Australian Journal of Legal History 285

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ASSIMILATION, LUTHERANISM AND THE 1950S JUSTICE OF KRIEWALDT

HEATHER DOUGLAS*

INTRODUCTION

Justice Kriewaldt was the only judge of the Northern Territory Supreme Court from 1951 until his death in 1960. The judge’s work has been described as standing as ‘a bench-mark of fairness and justice in the administration of justice to Aboriginals’,[1] yet he supported the assimilation policy of the 1950s.[2] In hindsight it is possible to conclude that during his nine-year period on the bench Kriewaldt was concerned with how the application of the law could support the assimilation policy. His limited general writing, his judgments and the regular newspaper coverage of his decisions during the period give some indication of his understanding of the policy of assimilation and his view of the role of the law in the implementation of the policy.[3] In spite of the continuing relevance of his judgments, to date there has been very little analysis of Kriewaldt’s understanding of assimilation.[4] It is the way in which Kriewaldt interpreted the meaning of the policy of assimilation and how it should be supported through the application of the law that I propose to examine in this article.

After providing a brief discussion of the policy of assimilation as background, this paper will proceed in three parts. In the first part I will examine Kriewaldt’s belief that the policy of assimilation was concerned with the uplift of Aboriginal people. Part two will explain how Kriewaldt interpreted and applied the law in order to support the policy. Finally, part three will discuss Kriewaldt’s understanding of the ultimate aim of the policy, that it would result in a ‘single Australian community’.

WHAT IS ASSIMILATION?

The time at which a policy of assimilation made its way into discourse about Aboriginal people varies. Most discussions about the policy of assimilation recognise that such a policy existed in varying ways in Australia well before the 1950s.[5] McGregor suggests that the heyday of the assimilation policy was roughly the middle third of the twentieth century.[6] However, the policy gained solid ground throughout the 1950s in the Northern Territory as a result of explicit and formal government recognition. The policy was encapsulated in a formal government statement in 1963. By that stage the objectives of assimilation were said to be that:

The policy of assimilation means that all Aborigines and part-Aborigines will attain the same manner of living as other Australians and live as members of a single Australian community enjoying the same rights and privileges, accepting the same responsibilities, observing the same customs and influenced by the same beliefs, hopes and loyalties as other Australians. ...[7]

Further, the formal government position on assimilation in 1963 was not that Aboriginal culture should be suppressed but that over generations cultural readjustments would be made.[8] In spite of the apparent simplicity of the definition quoted above, the term assimilation is a complex one to define. In the 1950’s it had no single meaning and was influenced by a range of intellectual ideas.[9]

By the time Kriewaldt reached the bench in 1951 few people maintained the view that Aboriginal people were a dying race.[10] The predictions had changed. The underlying assumption shared by the influential anthropologist, A P Elkin, the Commonwealth Minister for Territories, Paul Hasluck and Kriewaldt was that Aboriginal people were not going to die out but had to be found a place in the future.[11] Assimilation was the short hand term for the vision of how Aboriginal people would be found a place in that future.

Recent debate about the assimilation policy has focussed on the coercive practices that saw authorities compel Aboriginal people to abandon familial, social and cultural practices in order to integrate with white society. The most atrocious example of these practices was the removal of children from their parents.[12] However, some of those involved in the implementation of the policy in the 1950s saw assimilation as a policy focussed on a social expectation that Aboriginal people would forego or lose their cultural separateness as they increasingly learned about and interacted with white society.[13] In this sense it was understood as a policy of social integration. Participants in the debate varied in terms of how such a policy might best be supported and implemented. Both Hasluck and Elkin explicitly articulated their aims for assimilation and ideas about how it might be achieved. Generally their respective versions included an interpretation of the components noted in the 1963 statement quoted above. For Elkin, Hasluck and, as I demonstrate below, Kriewaldt, assimilation assumed that the lifestyles of Aboriginal people would change. Elkin and Hasluck explicitly intended that training, education and regulation would impact on the manner of living of Aboriginal people in order to encourage (or coerce) Aboriginal people to live like ‘other Australians’. For the purposes of understanding assimilation, ‘other Australians’ in the definition of assimilation quoted previously, was a term, which essentially meant white people. Ultimately the policy sought to result in a national community, or the unity of a single community.

Anderson’s concept of the nation as an ‘imagined community’ may be helpful in understanding the vision of community which underlies an understanding of the assimilation policy. Anderson argues that nations are imagined political communities and that they are imagined because, in even the smallest nation, the members do not know each other ‘yet in the minds of each lives the image of their communion’.[14] For Anderson such communities are imagined because, regardless of actual inequality and exploitation, the imagined community is conceived of as a ‘deep and horizontal comradeship’.[15] This concept of imagined community can be understood as the ‘single community’ aimed for by the policy of assimilation. In this vein Rowse has suggested that assimilation was attractive precisely because it appealed to notions of national unity.[16] It is clear that assimilation was generally conceived of in a positive sense as a nation-building policy. However ultimately the implementation of the policy operated to strip Aboriginal people of their Aboriginal identity in exchange for the single identity of the nation. For example, pursuant to the Welfare Ordinance 1953-1957 (NT) (the cornerstone legislation of the 1950s policy, hereinafter referred to as the Welfare Ordinance), unless Aboriginal people were judged to be wards under this legislation they were, for all practical purposes, effectively part of the white community of ‘equals’. Non-wards were essentially required to cut ties with their relatives and friends who were wards.[17] Williams has emphasised that significant characteristics expressed in the policy of assimilation are egalitarianism and homogeneity,[18] reflecting the kind of ‘horizontal comradeship’ to which Anderson refers.

Those Aboriginal people who were wards were not part of the imagined community (the nation) they were outsiders to the nation and had protected status. Thus, where the moral aim of the assimilation policy was a positive one of uplift, the practical aim was to draw Aboriginal people (wards) into the (imagined) community as (imagined) equals. Essentially this drawing in would occur when it became possible to recognise wards as being no longer Aboriginal people, or alternatively when they behaved like white people. According to Wolf, this approach continued the colonisation process of elimination, the elimination being ideological rather than material.[19] Thus this vision of the single community of assimilation can be seen as a movement away from the previous colonial preoccupation with the physical, that is distinction by blood and elimination via breeding, to distinction by behaviour and elimination by administration.

Others have discussed the views of Elkin and Hasluck in depth.[20] Below I discuss Kriewaldt’s writings in an attempt to ascertain his understanding of the assimilation policy and his perception of his role as a judge in implementing and supporting it.

PART ONE – A POLICY OF UPLIFT

Ultimately Kriewaldt held the view that assimilation would improve the lives of Aboriginal people. For reasons that are discussed below, Kriewaldt’s narrative of assimilation needs to be told against the backdrop of his Lutheran background. Wolfe has suggested that the rhetoric of assimilation was always couched as improvement and that this recapitulated the missionary project of uplifting and civilising.[21] Implicitly, at least, Kriewaldt’s story of assimilation grew out of his experiences of the Australian Lutheran missions’ approach to Aboriginal people. Kriewaldt was a practicing Lutheran throughout his life and retained a strong interest in the Lutheran church. While he was on the bench,[22] he always kept a statue of Martin Luther in his Northern Territory chambers beside his Namatjira paintings.[23] In an early draft of his major published paper Kriewaldt felt compelled to assert his commitment to the Lutheran church, he said:

[t]hose who know me and my family background will be aware of my personal bias; for the sake of the general reader I disclose that I am the son of the manse and that my brother (a clergyman) is the Chairman of the Lutheran Koonibba Aboriginal Mission Board of South Australia.[24]

Kriewaldt’s father was a Lutheran pastor[25] originally based in Wisconsin in the United States. He later came to Australia as a missionary in the 1890s, living with his family, first in Adelaide, and then in Victoria. Justice Kriewaldt was named after an important Lutheran Church reformation leader, Martin Chemnitz and was educated at exclusive Lutheran schools; Concordia in Adelaide and, after his father died, Concordia in the USA. The judge belonged to the Evangelical Lutheran Church of Australia (ELCA) the more conservative branch of the Lutheran Church in Australia at the time.[26] He was at one stage president of the Australian Lutheran League and was later elected to the Executive Council of the Lutheran Church in Australia, ‘one of the highest positions [in the church] that a lay person can aspire to’.[27] According to his son, Justice Kriewaldt’s Lutheran heritage was a strong influence on the way in which he thought about Aboriginal people. Consistently with Kriewaldt’s son’s view a magistrate interviewed shortly after Kriewaldt’s death said that because of the judge’s deep commitment to the church and associated ‘missionary spirit’ Kriewaldt ‘considered the native Aborigine as the white man’s burden, that at all times they were the white man’s cross ... Kriewaldt was a missionary not a judge’.[28] In a similar vein, towards the end of his life he referred to his faith saying that ‘[a]ll my life the duty of Christians towards heathens, and the duty of the more fortunate towards the less fortunate has been impressed upon me’.[29] This statement could be understood as referring to the duty of white Christians, like the judge, to black heathens, such as those who appeared before him in the court. It supports the views of the interviewed magistrate that Kriewaldt believed that flowing from his Christian ethic was a duty towards Aboriginal people.

Ahead of official government policy on assimilation, mission aims had been focussed on a concept of ‘uplift’[30] of Aboriginal people. By the time that Kriewaldt arrived in the Northern Territory in 1951 Pastor F W Albrecht was well known in the Australian community for his outspoken views on Aboriginal people’s welfare.[31] Essentially Albrecht had been lobbying government since 1926 for the assimilation policy reforms instituted by Hasluck in the 1950s. From 1926 to 1951 Albrecht had been a missionary at Hermannsberg.[32] In 1952 Albrecht returned from a sabbatical in Germany to be based in Alice Springs where he focussed on working with the estimated 14,000 Aboriginal people living on the cattle stations in the Northern Territory[33] and also built up the Lutheran ministry in Alice Springs. Kriewaldt was aware of the work of F W Albrecht and engaged with his arguments on some occasions.[34] Kriewaldt was in close contact with the Hermannsberg mission and was a friend of F W Albrecht’s son, Paul Albrecht, who was also a pastor based at Haasts Bluff.[35] On a number of occasions during the 1950s Kriewaldt made the long journey to Hermannsberg to meet with fellow Lutherans and attend church services there.[36] Apparently this was a significant undertaking requiring a high degree of commitment and a police escort was required to travel with him over one hundred kilometres into the desert.[37] Throughout his period on the Northern Territory bench he continued to demonstrate a strong commitment to the Lutheran Church.

Kriewaldt never clearly articulated, in any published material, how he understood what it meant to be a Lutheran, and what the associated ‘personal bias’ entailed. Lutheran theology is underpinned by a theory that there are two kingdoms, one is the kingdom of god and the other is the kingdom of the world.[38] The two kingdoms are closely related and obedience to god and to the institutions of society are concurrently required. Neither authority, church or secular government, should dominate the other.[39] Although the two kingdoms interact they also remain distinct. Thus, as christians are understood as citizens of two worlds with two different and independent sets of rules to follow, this creates a tension in daily life.[40] While other Christian denominations recommended a more cloistered and contemplative life, Luther preached that it was important to work in the kingdom of the world.[41] Thus Lutherans have consistently emphasised vocation and industry.[42] For Luther, educators, magistrates and the judiciary had important functions in the world.[43] It seems consistent with this theological outlook that Kriewaldt would have approached his judicial position as a vocational calling.[44]

Henson comments that Lutheran religious faith was strongly influenced by: ‘... pietism, which emphasized obedience to God in all aspects of daily life, a personal devotional life nourished by bible reading and prayer, and the strong imperative to bring Christian Gospel to every race and person’.[45] Although the sacraments are important to Lutheran faith there is a relaxed approach to how they are carried out as long as the basis of them is sound.[46] This adaptable approach has important ramifications for evangelism as sacraments can be carried out in difficult and under-resourced conditions – for example in remote areas such as Central Australia. Hill agrees that Lutherans are pious and also adds that they are stoic.[47] Lutheran stoicism may be understood to spring from the background of persecution that Lutherans have frequently experienced both around the birth of their church and on many subsequent occasions including in Australia during the twentieth century.[48] Kriewaldt had himself experienced such persecution.[49] The Lutheran emphasis on religious piety is attributable to Luther’s preaching in support of devotion and virtue as a reaction against the practice of indulgences. Perhaps particularly importantly in the context of this analysis, commentaries on Lutheran faith emphasise the importance of evangelism to the Lutheran practice.[50] Lutheran sources frequently refer to the mandate allegedly given to the disciples by Jesus:

... and you shall be my witness in Jerusalem and in all Judea and Samaria and to the end of the earth and the ‘great commission’; ‘[g]o therefore and make disciples of all nations baptizing them in the name of the father and of the Son and of the Holy Spirit’.[51]

Thus Lutherans believe that all people should be able to share in the Lutheran faith regardless of their race.[52]

F W Albrecht, like other Lutheran missionaries before him, sought to evangelise Aboriginal people to the Lutheran faith. This was inevitably understood to be an uplifting process. The practical ramifications of this aim were that Aboriginal people needed to become settled (rather than nomadic). Such changes required that the missions provide food, which in turn required that Aboriginal people work to assist in its production. For Albrecht, if the price of evangelisation was, at least partly, the restructuring of Aboriginal ways of life, then the missions had a responsibility to help ensure that Aboriginal people could survive in this new way of living. Henson suggests that this was fundamentally an articulation of the assimilation policy.[53] Ultimately the policy of assimilation was a policy about civilising which was linked to the missionaries’ concern with the Christianising of Aboriginal people. Others have written about the link between Christianising and assimilation. For example, Woolmington points out that the accepted view of the nineteenth century missionaries was that Aboriginal people had to be civilised before they could accept the gospel.[54] Historically, because of its connection to Christianity, civilising was an ‘improving and elevating’ process.[55]

Given his personal commitment to the Lutheran Church, it is likely that Kriewaldt largely shared Albrecht’s vision for Aboriginal people.[56] At the same time he was also highly influenced by Elkin’s anthropological work.[57] The two approaches were not incompatible. It is clear from Kriewaldt’s writing that he accepted the policy of assimilation. He commented, that:

[t]he white man had decided to use the law as a civilising medium on aborigines. The only alternative would mean giving up attempts to assimilate the natives and relegating them to live on reservations.[58]

Kriewaldt’s eventual preparedness to conform explicitly to prevailing government policy is consistent with the approach of the Lutheran two kingdoms theory. Luther saw law and government as blessings which should be obeyed.[59] In many of his judgments Kriewaldt tried to articulate the best way to apply the law to reflect the aims of the government assimilation policy.[60]

Throughout the 1950s the principle forms of regulation governing the lives of Aboriginal people in the Northern Territory were the Ordinances. Kriewaldt was aware of the controversies surrounding the passage of the various reincarnations of the Aboriginals Ordinance and Welfare Ordinance and had made a point of following the debate surrounding them.[61] The Welfare Ordinance gave the government extraordinary levels of control over Aboriginal people. Kriewaldt had the chance to attack the Welfare Ordinance (and arguably in that process to attack the policy of assimilation) in Namatjira’s case where the key argument of the appellant was essentially a constitutional one. Albert Namatjira, by virtue of his level of assimilation, was not subject to the Welfare Ordinance, and unlike wards was allowed to drink alcohol. He had illegally supplied alcohol to a relative who was a ward. Namatjira’s defence counsel questioned the process of declaring Aboriginal people to be wards and argued that the Welfare Ordinance was ultra vires because it was not a law for the peace, order and good government of the Northern Territory.[62] Given his position as a Supreme Court judge it is no surprise that although Kriewaldt appeared to accept the questionable processes that led to wardship, he did not ultimately accept the defence proposition.[63] The underlying conservatism of his Lutheran beliefs would also have suggested that he would tend towards support for the legislation.[64] In any event, it was his view that when the Welfare Ordinance was passed it was concerned with ‘the protection and advancement’ of Aboriginal people and with their welfare while they were being assimilated.[65] Thus Kriewaldt found that the new Ordinance was constitutionally valid and that it was concerned to assist in the uplifting and civilising of Aboriginal people.

The 1957 shift from the Aboriginals Ordinance to the Welfare Ordinance reflected a change in thinking about Aboriginal people. In theory, no longer were Aboriginal people to be identified as a result of the percentage of Aboriginal blood they possessed or their racial ancestry; from 1957 they were categorised according to the level of civilisation they had attained, once they had attained a manner of living resembling white people[66] (i.e. once civilised) they would no longer need the protection of wardship (i.e. white intervention). In 1957 Kriewaldt was able to recognise three classes of Aboriginal people in need of protection:

[t]here was a small proportion [who] had not had any or very little contact with white civilisation ... a small proportion who had substantially adopted a way of life more nearly resembling that of white persons than the way of life their ancestors followed ... [Finally] there was an overwhelming majority who, although affected by white people, still retained a good deal of the outlook on life of their ancestors and followed their manner of living.[67]

After finding that the Welfare Ordinance was designed to help and guide Aboriginal people he noted that; ‘... nearly all Australian Aborigines stand in need of some special care and attention, [this] would seem to be the unanimous opinion of five out of six state legislatures’.[68] He accepted that most Aboriginal people in the 1950s Northern Territory were in need of white guidance. Only those Aboriginal people who had substantially adopted a white lifestyle would escape wardship, although Kriewaldt accepted that this decision was apparently completely discretionary.[69] The set of categories noted above reflects Kriewaldt’s acceptance that there would be an inevitable shift towards a situation where the lives of Aboriginal people resembled the lives of white people, that is where Aboriginal people would be assimilated.

In Namatjira’s case, Kriewaldt determined that the Welfare Ordinance was a positive force that supported the ‘advancement’ of Aboriginal people towards a white way of life. Although Kriewaldt does not explicitly refer to race in the classifications he uses, the standard against which behaviours are judged is clearly a white standard. In the 1950s the position was effectively that government policy had finally caught up with the position of the evangelising churches. It thus makes sense that the son of an evangelist missionary, himself a practicing Lutheran, should take on the task of interpreting the secular scriptures (the ordinances) of assimilation in the 1950s.

PART TWO − ASSIMILATION AND THE ROLE OF THE JUDGE

As I have argued above, the moral aim of assimilation for Kriewaldt was that Aboriginal people should be ‘uplifted’ and, in a more practical sense ultimately found a ‘useful’ place in white society. Kriewaldt, like Elkin and Hasluck, believed that the process would take some time[70]. Given the broad reach of the policy, that is to transform the lives of Aboriginal people in every sense, the techniques pursued were also broad in their range. By the 1950s, the question of the impact of racial characteristics continued to concern Elkin and to a lesser extent Kriewaldt but this consideration was largely being pushed into the background at least partly by the prevailing political climate.[71] Rather than to ‘breed out the colour’,[72] the apparently legitimate objects by the 1950s were to change the behaviours of Aboriginal people and in that process, to change the way Aboriginal people thought about the world. The overriding technique for the implementation of the policy of assimilation for Elkin and Hasluck[73] and arguably for Kriewaldt was in educating but the method of education varied. For his part Kriewaldt confined his attempts to promote assimilation to the implementation of the law and to discussions and recommendations about its closely associated institutions.

The premise underlying many of Kriewaldt’s judgments is that Aboriginal people must be taught to forego certain Aboriginal cultural responses, for example customary law responses, in exchange for the protections of and subjection to white law.[74] However his categorisations in the Namatjira case[75] also suggest that he accepted that the exchange would be slow. That is that gradually Aboriginal cultural traditions would be replaced with white ways of living in the world, including moving into towns, working in paid employment and following a set of Christian values.[76]

The Lutheran faith exhorts that Lutherans should obey secular law provided it does not conflict with God’s law.[77] Kriewaldt respected this maxim, on one visit to the Hermannsberg mission he reportedly advised the local Aboriginal parishioners that although it was most important to obey God’s law, ‘if you want to be good citizens, obey the law of the country and then enjoy its privileges’.[78] During his career Kriewaldt reiterated this view that subjection to the white law brought with it protection.[79] For Kriewaldt the assimilation policy and the laws that accompanied it were compatible with his Lutheran outlook. As I demonstrate below, both in his judicial capacity, and in his commentary, Kriewaldt often remarked on the importance of the (secular) law as an aid to the process of assimilation.

Initially, during his time on the bench, Kriewaldt expressed a reluctance to openly describe the law as a tool of assimilation. This is illustrated in the Northern Territory News coverage of the 1954 case of Timothy Chimokee. The headline for a Northern Territory News article, stated; ‘[c]ourt ponders position regarding assimilation’.[80] The paper reported that the judge was pressed by the crown prosecutor to consider the government policy of assimilation and to use sentencing to discourage tribal customs. However, Kriewaldt reportedly stated to the court that the case before him was not a suitable case in which to decide whether the Federal Government policy of assimilation was a relevant factor.[81] However by 1959 the judge was prepared to openly express his view that the law had an important role to play in the implementation of the assimilation policy. In the case of Wheeler, he referred to the relationship between the law and the assimilation policy. Wheeler, an Aboriginal person, was reportedly involved in a tribal fight at Papunya[82] where he fatally speared another person. The headline to the coverage of this case quoted Kriewaldt stating that ‘[l]aws are part of assimilation; prosecution of Aborigines who break the law must be an integral part of any assimilation policy’.[83] Indeed the main thrust of the judgment appears to be an attempt to aid the process of assimilation by deterring ‘pay back’.

It is possible to see that, for Kriewaldt, the law assisted the assimilation process in a range of ways. For the law to operate successfully with respect to Aboriginal people Kriewaldt argued that Aboriginal people needed to be convinced that they should submit themselves to the law. According to Kriewaldt, this submission could be encouraged in two main ways. First, by demonstrating that when Aboriginal people submitted themselves to the law, the law would then provide protection and second, by demonstrating that the law was equally applied to Aboriginal people and white people. This latter aspect of the demonstration of equality required that the law be seen to bestow equal rights on Aboriginal people and white people. As a result of ensuring that Aboriginal people submitted themselves to the law, Kriewaldt found that the law could then be used to teach Aboriginal people appropriate (civilised) behaviours. I examine these aspects of Kriewaldt’s view of the role of the law in the assimilation process below.

A Kriewaldt and Submission, Protection and Equality

Kriewaldt accepted that it was settled law that the criminal law should be universally applied.[84] Williams has pointed out that this attitude complements the egalitarian ideals of assimilation,[85] that is that Aboriginal people and white people should ‘enjoy’ the same rights and privileges and accept the same responsibilities.[86] Kriewaldt has written that an essential part of the process of assimilation was that Aboriginal people should be subjected to the criminal law. The judge believed that it was equally essential for the process of assimilation that the criminal law was protective towards Aboriginal people, so that Aboriginal people would be discouraged from taking the law into their own hands.[87] He stated:

I regarded it as settled law that, except to the extent that legislation has made some alteration, the whole of the criminal law, both substantive and procedural, and the whole of the law of evidence, applied equally to whites and aborigines.[88]

Kriewaldt probably laid emphasis on the criminal law as this was the branch of the law with which Aboriginal people tended to be most involved. However, in the one civil case over which he presided, involving Aboriginal applicants, similar attitudes are seen to prevail.[89] Ultimately Kriewaldt wanted Aboriginal people to feel confident to avail themselves of the protection of the white law in exchange for their subjection.[90]

Kriewaldt believed that, like Aboriginal people, white people also had to be educated to accept that the law should be equally applied. This is most obvious in his directions to (inevitably) white juries.[91] Kriewaldt believed that there were a number of problems involved in allowing white juries to decide on the guilt of an Aboriginal defendant. The judge believed that jury members rarely understood Aboriginal witnesses, that they rarely had any experience or knowledge about Aboriginal people and that they, from Kriewaldt’s point of view most disturbingly, often believed that crimes committed by one Aboriginal person upon another Aboriginal person should not be tried in white courts of law.[92] Kriewaldt believed that because of this latter attitude there were a disproportionate number of acquittals.[93] Thus for Kriewaldt, it was very important to use jury directions to educate juries to apply the law to Aboriginal people in the same way that they would apply the law to a white person. For example in Jangala’s case he noted that jurors should

... discard from your mind any prejudices you may have against the accused because of his colour, and similarly discard from your mind any views you have regarding the wisdom of trying natives in the same manner as white people...the law at present is that an Aboriginal native of Australia in the Northern Territory is tried according to the same laws as a white person.[94]

In the above direction the judge emphasised the fact that the law for Aboriginal people is the same and that it is not only that fact that the jury must accept, but also the fact that the method of trial for both Aboriginal people and white people is the same. He stressed that all are subject to the same content and process under the law (the same rights and privileges). The direction demonstrates the judge’s anxiety that jurors may have been concerned about whether white legal rules were the most appropriate way to judge Aboriginal people and, further, jury concerns as to whether Aboriginal people should be tried at all by a white system of law.

In Wheeler, Kriewaldt went as far as to advise the jury that they may well be able to think of a better system for trying natives than the one that had been in place for 150 years, but he re-iterated that ‘[w]hen a native is accused of a serious crime he must be tried in exactly the same way as if he were white’.[95] Given these directions it is not surprising that unlike Elkin, Kriewaldt was sceptical about the introduction of a Native Court or a distinct court or process for judging Aboriginal people. Kriewaldt suggests that the underlying reason put forward in support of such courts was that the current system encouraged unfair convictions. Kriewaldt argued that the real problem was actually unfair acquittals, which, in his view, Native Courts would not correct.[96] Some had also suggested that tribal matters should be heard by such a Native Court, Kriewaldt’s response to this was a question of how to distinguish and define tribal matters from other matters related to drink or general disputes.[97] The judge was aware that legislation had been developed for the establishment of Native Courts but it never came into force[98] and he did not support it. He did accept that some changes to the legal procedures may be helpful but he was keen to ensure that any changes would retain the judge as the final decision-maker. Essentially he was committed to maintaining the same processes for Aboriginal and white people.

The judgments in the Chambers cases provide excellent examples of Kriewaldt’s approach to his threefold emphasis on subjection, protection and equality. Below I will discuss these cases, firstly the criminal case in which three white men were prosecuted with assaults against a number of Aboriginal people and then the associated civil case in which a number of the Aboriginal victims of the assaults sued their white attackers.

B The Chambers’ Cases

The first Chambers case came before Kriewaldt in 1955.[99] At the time newspapers covered the story in depth and correspondence about the case and overseas newspaper clippings are stored in the Kriewaldt archive.[100] An American journalist, Robert Ruark, was travelling in Australia during the time that the case was heard in the Northern Territory. He was so impressed with Kriewaldt’s approach that he dedicated his column to covering it. His syndicated column subsequently reached over 200 newspapers across the United States.[101] A copy of the transcript of the ensuing civil application by the victims is held in the archives of the NT Supreme Court library[102] and throws some light on the accepted facts of the criminal prosecution. The Chambers cases offer a strong insight into Kriewaldt’s understanding of the role of the law in supporting the assimilation policy.

In 1955, five Aboriginal people were allegedly stockwhipped and bashed by two brothers, Colin and Jack Chambers. The Chambers brothers were the white owners of Eva Downs cattle station where the Aboriginal victims were employed. It was accepted that earlier on during the day of the assaults the only female victim, Dolly Ross, had had an altercation with Jack Chambers about cooking and Jack Chambers had allegedly called her a malingerer. Some hours later Dolly Ross and her partner Jim Ross, who were aged in their ’40s and ’50s respectively, were sitting with a 16 year old boy called Monroe on the road when the Chambers brothers rode up on horses armed with stockwhips and revolvers. It is at this point, according to newspaper reports, that the stories of the victims and the Chambers brothers diverge. Kriewaldt heard evidence from the Aboriginal victims and from the Chambers brothers and two other white stockmen. The victims testified that the Chambers had ridden up to them and that:

Jim had been flogged by the horsemen until he ran, flogged to the ground, and driven with whips back to the station, where he had been bashed and made to work with a pick; that Dolly had also been flogged until she fell; that the diminutive Munroe had been flogged, bashed and booted in the ribs; that Jim and Munroe had been threatened with a loaded revolver brandished by one of the horseman ...[103]

Jim and Dolly Ross’ wounds were deep and numerous and the pair displayed their scars to the court. The prosecutor suggested that there were about 97 whiplash marks on the victims, 47 marks on one victim.[104] Apart from the testimony from those actually involved in the events, the only other evidence came from a policeman who displayed the photographs he had taken of the wounds some four days after the assaults took place. However, it seems that, due to the fact that the photographs were taken so long after the event they carried little weight for the judge.[105] The defence argued that the stockmen had been ambushed and attacked by the Aboriginal people who were waving nulla nullas and boomerangs and in self defence the stockmen had formed a ‘stockwhip circle’ together and waved their whips around in a circular motion in an effort to protect themselves. The defence also argued that some of the scars exhibited by the victims were tribal marks or lash marks they received when they tried to break through the protective ‘stockwhip circle’.

Kriewaldt’s main focus, due to the available evidence in the case, was inevitably on the testimony of the Aboriginal victims and the white stockmen. The Northern Territory News reported that the defence lawyer in the case argued that the evidence of the Aboriginal victims should be viewed as dangerous, he was quoted as saying:

The mentality of natives is comparable to very young white children, only more dangerous because of ... cunning ... Aboriginal’s evidence ... is plainly the most dangerous material any court can be required to handle ... Pinned down in the witness box they always have a favorite means of escape – the pretence of being unable to understand the questions.[106]

In spite of the lawyer’s efforts to convince him otherwise, Kriewaldt accepted the evidence of the Aboriginal victims. Kriewaldt noted that he thought that it was ‘quite fantastic’ that a middle-aged native couple and a young native boy would attempt to attack five mounted men and that he didn’t believe there was ever any intention by the Aboriginal victims to ambush anyone.[107] The Chambers brothers were found guilty of the assaults. In the circumstances this was considered by the public to be an extraordinary result. However, for Kriewaldt this was precisely the point of the law, that it had equal application. The message in this case was that if Aboriginal people submitted themselves to the law it would protect them.[108] The case also demonstrated Kriewaldt’s view of the legitimacy of the law to enforce standards of behaviour. The unacceptable violence of the white defendants in this case (and Aboriginal tribal law in other cases[109]) was to be punished.

Ultimately the judge sentenced the Chambers brothers to six months jail. In his judgment one newspaper reported that Kriewaldt said:

I do not think the assaults were pre-meditated ... They were influenced by sudden bursts of temper. If I thought the stockwhips were used in self-defence I would have released the Chambers brothers on a bond ... If I thought the whips had been used to drive the natives back to work I would have imposed extremely severe penalties. But I think the whips were used on the ground to enforce the will of the white men over that of the natives to show that the white men would brook no interference in their dealings with the natives.[110]

The result was considered to be remarkable, first because Kriewaldt had accepted the testimony of Aboriginal people over and above the testimony of the white stockmen. Second, because Kriewaldt had not only found the white stockman guilty of the assaults but he had also delivered the most serious punishments to the stockmen, both of the main protagonists had received jail sentences, one had received a jail sentence with hard labour. Kriewaldt had never before jailed (let alone found guilty) a white man who had assaulted an Aboriginal person.

The judge accepted that the Chambers were not treating Aboriginal people as slaves, driving them back to work with whips, but rather that they intended to ‘enforce the will of the white men over that of the natives’.[111] The distinction between the motives articulated by Kriewaldt; that of slavery versus enforcing wills was extremely important to the judge.[112] He noted that his penalty would have been much more severe if he thought there was any suggestion of enslavement.[113] In spite of the judge’s use of the words ‘white men’ and ‘natives’ his refusal to accept any proposition of slavery as the motive for the crime suggests an attempt to diffuse the racial element of the incident. He was attempting to downplay the issue of race relations so that he could demonstrate the neutrality of the law, that it was equally applied regardless of race. Later he wrote that if his decision had been to acquit the white men of the assaults he would have ignored any suggestion that he was influenced by the racial characteristics of the accused.[114] The crime is ultimately cast as one between equals rather than slaves and their masters, employers and employees or as between Aboriginal and white people. It was arguably this that caused the journalist, Ruark, to describe Kriewaldt as having ‘enormous wisdom’, the columnist noted that ‘... this is the only country where the principle of equal justice for all could be upheld like this to such a high degree ... Australia and the world’s whites might be truly proud of Mr Justice Kriewaldt ...’[115]

Finally, the judgment reflects some of the general aims of the assimilation policy, that rights, responsibilities and privileges would be the same for all.[116] In 1956 the victims of the stock-whipping incident filed a writ claiming damages for assault against the Chambers brothers.[117] The only remaining record of the case deals with the question of whether Aboriginal people have standing to sue. The writ in this case was filed by the victims’ next friend, the Director of Native Welfare. However there were some problems noted with respect to the authority of the next friend and the appropriateness of the documents filed. Ultimately Kriewaldt found that the primary issue of the case was whether an Aboriginal of full-age could sue in his own name.[118] The Chamber’s lawyers attempted to argue for a broad reading of the Ordinance such that Aboriginal people would be required to sue via the Director of Welfare. Kriewaldt agreed that there was an ambiguity within the Ordinance but nevertheless found it appropriate to read the legislation down. After examining the relevant Ordinance[119] he decided that, prima facie, an Aboriginal person had the right to sue. He noted that an Aboriginal person of full-age living in the Northern Territory

... is subject to the same laws and entitled to the same rights and privileges as any other person living in the Territory. The law has never regarded an aboriginal as deprived of rights or relieved of obligations merely because of his ancestry. [120]

The judge recognised that there had been modifications made to this principle by legislation such that Aboriginal people were denied some of the rights held by white people and were restricted in some ways more than white people. However he used that overarching principle of equality of rights and privileges to clarify and interpret this ambiguity in the law. One of the important principles of the assimilation policy, that Aboriginal people and white people have the same rights and privileges, is again mirrored in his application of the law. Where possible Kriewaldt used the law to recognise the legal rights of Aboriginal people, so that they would mirror the legal rights of white people; here the right to sue for damages. For Kriewaldt legal rights existed regardless of race. Again in this case Kriewaldt is effectively demonstrating his view of the role of the law in the implementation of the assimilation policy. That is, for him it was a policy that ensured equal rights for both Aboriginal and white people.

C Using the Law to Educate

Kriewaldt believed that through the policy of assimilation it was hoped that Aboriginal people would become ‘permanent, integrated, and useful’ members of the community.[121] For this to occur Kriewaldt argued that Aboriginal people would have to be punished for any crimes they committed.[122] Kriewaldt accepted that Aboriginal people would need to be taught that the criminal law both inflicts punishment and protects.[123] He commented that:

[o]ne of the purposes of the criminal law is to restrain the instinct to resort to violence when a wrong has been suffered. This restraint is accepted in civilised communities partly from fear of punishment but partly also because there are other means of punishing the offender than resort to force.[124]

The implication was that once Aboriginal people became ‘civilised’ or assimilated they would begin to accept the subjection of the criminal law but could also expect its protection. For Kriewaldt there were a number of ways in which the legal process could be used as a tool to educate Aboriginal people about how to behave in a way that would facilitate their assimilation into the single Australian community. Although Kriewaldt accepted that often individual Aboriginal people did not understand what was happening to them with respect to the legal process in which they were involved[125] he maintained that the law could still be used as a tool to educate Aboriginal people more generally. Kriewaldt believed that the pre-trial steps involved in bringing a case to court were extremely important in this regard. He suggested that the informal steps taken during the police investigation and interview often did more to educate Aboriginal people about the law than the formal trial.[126]

Further Kriewaldt was ‘... of the opinion that prosecutions must be part of any assimilation policy’.[127] Ensuring the prosecution of offences was an important part of the assimilation process for Kriewaldt because it made Aboriginal people subjects of the criminal law. This subjection enabled a demonstration of the law’s protective function towards the (usually Aboriginal) victims of the perpetrator through the application of appropriate penalty. The judge suggested that support could be provided to the project of assimilation if welfare officers could give assistance to police in investigating and prosecuting crimes involving Aboriginal people.[128] Kriewaldt presumed that welfare officers had significant knowledge of the events on Aboriginal reserves, and often had information about potentially criminal behaviour that police would find difficult to access. Some welfare officers saw a conflict between assisting police to prosecute and their central role of protecting Aboriginal people and did not readily co-operate with police, but Kriewaldt pointed out that their role was to protect all Aboriginal people both victims and offenders[129] which required the subjection of perpetrators to the law. In this regard he emphasised the protective function of the criminal law and the fact that Aboriginal people must be made aware of this function so that they would be taught to rely on the white law rather than their own law.

Interestingly, in a note of warning, the judge suggested that he would expect crimes committed by Aboriginal people against other Aboriginal people would appear to increase in future years as the effects of the assimilation policy were felt.[130] Although he does not explain directly why this might be the case, we can infer several potential explanations. One possibility was that he believed that as Aboriginal people became assimilated they would begin to understand the universal application of the law and report and complain of offences. Alternatively that as Aboriginal people became assimilated their behaviours may be subjected to higher scrutiny by officialdom. A final related explanation was that as assimilation progressed state institutions (police and welfare as examples) would also be more willing to subject Aboriginal people to white law and thus more willing to prosecute the crimes of Aboriginal people.

The judge found that one of the major challenges for the implementation of the policy of assimilation was to help Aboriginal people understand that because of the criminal law they could safely relinquish retaliation.[131] Thus Kriewaldt recognised an educative function for the criminal law, and surrounding institutions, in teaching Aboriginal people about acceptable standards of behaviour. The educative role of the law is played out in a number of Kriewaldt’s sentencing judgments where he examines the role of punishment in the assimilation process.[132] In Charlie’s case, where Charlie, at the direction of tribal elders killed a person who divulged tribal secrets, the judge used the sentencing disposition to send a message to Aboriginal people that the white law did not approve of killing those who reveal tribal secrets.[133] However his sentencing comments reveal his early anxiety about the educative role of punishment in circumstances involving Aboriginal defendants:

I have considered one further aspect, namely, whether any punishment on this prisoner is likely to hasten or retard the assimilation of the native population resolved upon by the authorities entrusted with their welfare, and whether the effect on that policy of punishment or lack of punishment is a relevant consideration for me to take into account. I have come to the conclusion that, unless the legislature prescribes that this factor shall be taken into account, it would be wrong to increase or decrease an otherwise just sentence in order to give effect to a policy of accelerating the assimilation of the native population of the Territory.[134]

Although the above extract may suggest an early reluctance to embrace the policy of assimilation to later cases provide a clearer and stronger view. Heard some six years after Charlie, in the Wheeler case, Kriewaldt stated that the ‘criminal law must be used to assist in the assimilation of the Aborigines’.[135] He described the sentence ‘as an aid in the process of the assimilation of the Australian Aboriginal into the integrated community’.[136] Thus he later accepted that one of the roles of sentencing was to apply general deterrence to assist in effecting assimilation,[137] the consequence of the penalty would be to deter certain behaviours associated with Aboriginal ways of living.

Kriewaldt recognised that some Aboriginal people were already more assimilated (civilised) than others so that different kinds of treatment depending on the extent of assimilation would be appropriate. For example, for those Aboriginal people who were effectively civilised, specific deterrence with respect to penalty could come into play[138] while for those who were living essentially tribal lifestyles, general deterrence may be appropriate where specific deterrence would not be.[139]

Although by the 1950s assimilation policy was focussed on a concept of social integration rather than biological integration, there appears to be some lingering concern for Kriewaldt about the source of the difference between Aboriginal and white people.[140] In spite of his efforts to approach the task of applying the law to Aboriginal people in a race neutral way, Kriewaldt’s judgments sometimes suggest an equivocal view about whether there were some differences between Aboriginal and white people that would not disappear with the process of assimilation.[141] In the preface to Kriewaldt’s major article Sawyer writes:

[m]y impression was that his Honour had developed from experience a view that the Aborigines as a whole, or at any rate a considerable number of ‘pure-blooded’ Aborigines, had a slightly different mental make-up from the white man or the mixed blood, and that this created inherent and inescapable difficulties in applying our legal concepts to their affairs ...[142]

Kriewaldt’s uncertainty about the impact of such qualities is illustrated in his jury directions in a line of cases concerning provocation to kill. For example in Balir Balir’s case the judge comments:

I see no objection to a jury taking the view that a white person will recover from the effect of provocation more quickly than an Aboriginal. I think it is right in law for a jury to say, from their knowledge of Aboriginals, that whereas a white man may have perhaps have cooled down, an Aboriginal would not.[143]

The implication in this judgment may be that there are biological as well as cultural differences between white people and Aboriginal people. White peoples’ tempers may cool more quickly when provoked and Aboriginal people may be quicker to respond with violence when provoked than are white people. Similarly the lack of direct answers in a statement that the defendant, Jangala, made to police were considered by the judge to result from how the ‘native’s mind works’.[144] Further, in Wally’s case the judge speculated that ‘generally speaking [aboriginal peoples’] intellect is of a comparatively low standard’.[145] These comments suggest that Kriewaldt was concerned that perhaps Aboriginal people had a distinct way of thinking about the world, which was largely related to their biological inheritance. This issue is never clarified to the judge’s satisfaction.

In spite of the unresolved question about the source of certain characteristics, Kriewaldt found that the law could be usefully employed as an aid to assimilation. Kriewaldt believed that the law could play a role in teaching white people about the equal rights provided by the law to white and Aboriginal people alike. The law could be used to demonstrate its protective role to Aboriginal people which in turn would encourage Aboriginal people to subject themselves to the law. The law could also be used to recognise equality with respect to rights of Aboriginal people and white people. Finally, the judge believed that the law could discourage certain ways of behaving which were associated with Aboriginal outlooks. Thus, in these ways, he saw the law as serving an educative function with respect to the implementation of the assimilation policy.

PART THREE − A SINGLE AUSTRALIAN COMMUNITY− THE PRACTICAL AIM OF ASSIMILATION

Kriewaldt accepted that the practical aim of assimilation was that eventually Aboriginal people would become part of an integrated community,[146] in this sense they would essentially disappear. Kriewaldt anticipated that gradually the behaviours and expectations of Aboriginal people would change so that eventually they would assimilate with the ‘civilised’ or white community. This endpoint is implicit in the writings and judgments discussed above. This position recalls Wolfe’s contention that the aim of assimilation was the ideological elimination of Aboriginal people rather than their physical elimination.[147] The position is very well illustrated in the local news reports of the 1950s. For example, the Northern Territory News reported on the liquor supply charges faced by Albert Namatjira in 1958 and noted that ‘[t]he black skin of Albert Namatjira hides the sick heart of a white man. A white man if ever there was.’[148] Namatijira had been exempted from wardship under the Welfare Ordinance, through an administrative action his Aboriginality was effectively erased. The editorial comment demonstrates that skin color was no longer, for the paper or the legislature, the definer of inclusion in the community. Rather, it was behaviour that indicated inclusion.[149] In this case, counsel for Namatjira pointed out that there was no clear set of standards in the legislation, which clarified whether an individual needed attention.[150] He asked ‘[w]ould the wearing of trousers be a test? Is it good if he does, bad if he doesn’t?’[151] Here counsel was pointing out that the focus of the legislation was on the behaviour of the person. Similarly, an earlier case had sought to establish whether an offender was an Aboriginal and the magistrates court in Alice Springs had heard that a person who ate with a knife and fork and drank tea from a cup was civilised and thus not an Aboriginal within the relevant legislation.[152]

As I have noted, Kriewaldt accepted that Aboriginal people could be divided into a number of social groupings and these groupings depended on behaviours. This categorisation essentially reflected a view that Aboriginal people were processing towards a civilised state, or towards life in the integrated community. For Kriewaldt, as Aboriginal people became assimilated their behaviour reflected more and more closely the behaviour of a white person. In many of his cases Kriewaldt made an assessment of the level of civilisation of the Aboriginal defendant who came before him. In his sentencing judgments he frequently assessed whether a particular defendant should be treated as if he were white (i.e. civilised or assimilated) or whether, because of a lack of civilisation, he should be given the benefit of leniency.[153] In his sentencing judgments the judge used phrases which referred to his understanding of the behaviours of the integrated community imagined as part of the assimilation policy. For example he questioned whether the ‘mode of life and general behaviour approache[d that of a] white man’.[154]

Although Kriewaldt did not explain how white people behaved, he did explain, through the application of the law, how ‘white’ (assimilated or civilised) people did not behave. Kriewaldt wanted to ensure that the law should be equally applied to Aboriginal people as well as to white people, however he also sought to use the law to teach Aboriginal people the behaviours expected of them in preparation for becoming part of the single community. For example, in his major article and in a number of cases where he attempted to clarify the application of provocation to unlawful killing cases involving Aboriginal people, Kriewaldt pointed out his view that civilised communities are ‘restrained’ and that they do not take the law into their own hands. Rather, Kriewaldt believed that civilised communities relied on the law of the state so that retaliation may be safely abandoned.[155] Similarly, in a number of cases involving Aboriginal people charged with using weapons and inflicting violence, Kriewaldt recommended punishment to send a message to Aboriginal people that such behaviours were not appropriate.[156] Kriewaldt identified these behaviours as strongly associated with uncivilised and unassimilated ways of life. Although Kriewaldt accepted that in certain circumstances native laws and customs may be relevant to sentencing, he advised juries that they were never relevant to the question of guilt. Native law and custom did not excuse unacceptable behaviour[157] even though it may sometimes mitigate penalty.[158] Even where mitigation was appropriate, the judge used sentencing to express disapproval for certain specific behaviours such as killing those who breach tribal law.[159] Kriewaldt believed that any differences in the treatment of Aboriginal and white people could only be related to a need to protect whilst they were being assimilated. He found that the protective function of some laws while assimilation was taking place was important. For example, he viewed the Welfare Ordinance and the prohibition of alcohol for Aboriginal people as serving a protective function.[160]

The single community had, as its basis, a broad conception of culture in the sense in which Williams has described it, including expressing meaning in ordinary behaviour.[161] The single community was one, which embraced the ordinary behaviours of white people. Thus this imagined single community was understood in terms of what white people did. When the practical aim of assimilation towards a ‘single community’ can be understood to reject certain behaviours associated with Aboriginal ways of life in favour of behaviours associated with white lifestyles, Kriewaldt’s application of the law reflected this practical aim.

CONCLUSION

Kriewaldt imagined that white society and its laws could be placed like a grid over Aboriginal society and laws,[162] however his approach suggests that he was prepared to loosen the struts of the grid from time to time to ease the transition to white society. Like other assimilationists of his era, he expected that the struts of the grid of white society and its laws would be able to be laid firmly in place and Aboriginal customary law and ways of life would disappear. To this end, Kriewaldt applied the law with a view to encouraging the transition towards assimilation. He accepted that it was a positive objective that eventually (and inevitably) Aboriginal people would be culturally absorbed into the white community. He sought to discourage Aboriginal cultural practices through active prosecution of offences and through using sentencing as an educative tool. He accepted that Aboriginal people needed protection while they were being assimilated and he sanctioned the operation of the notorious Welfare Ordinance and some of its associated prohibitions. In line with the definition of assimilation set out earlier in this article, Kriewaldt believed that one of the underlying principles of assimilation was that the law should be applied equally to both Aboriginal and white people.[163] For him, this meant that Aboriginal people should be subjected to the law, but also that they should benefit from its protection and from the rights that it bestowed.

The assimilation policy has continued to receive strong criticism, especially more recently as we have struggled to come to terms with the legacy of the stolen children and the coercive practices associated with their removal.[164] There is no evidence that Kriewaldt overtly supported the coercive practices encouraged by other assimilationists of the era. His judgments, perhaps unwittingly, do lend support to those oppressive practices, but his writing overall suggests a view of assimilation as a gradual and positive transition over generations. However, in spite of his apparently benign approach I recall a comment from Wolfe who notes that ‘the road to oppression has consistently been paved with good intentions’.[165] It is Kriewaldt’s good intentions and his often benign approach that have led to him being referred to as culturally sensitive, in spite of his support for the assimilation policy.

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* Senior Lecturer, Law School, Griffith University. This research is part of a larger project. The author wishes to thank Peter Rush, Ian Duncanson and Rosemary Hunter and the two anonymous reviewers for their helpful comments at various stages of the writing of this piece.[ ]

1 Justice Dean Mildren, ‘The Role of the Legal profession and the Courts in the Evolution of Democracy and Aboriginal Self-Determination in the Northern Territory in the Twentieth Century’ (1996) 7 Journal of Northern Territory History 47, 51. He has also been described as ‘culturally sensitive’, Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No 31 (1986) 302.

[2] See for example Justice Martin Kriewaldt, ‘The Application of the Criminal Law to the Aborigines of the Northern Territory of Australia’ [1960] UWALawRw 1; (1960-1962) 5 University of Western Australia Law Review 1, 15, 24, 31; Namatjira v Raabe [1958] NTJud 19; (1958) NTJ 608, 617-118 (‘Namatjira’) ‘Death Battle over Woman’ Northern Territory News, 3 April 1958, 1. Others have identified Justice Kriewaldt as pro-assimilation, see for example Mildren ibid; Mary W Daunton-Fear and Arie Frieburg in ‘“Gum-tree” Justice: Aborigines and the Courts’ in Duncan Chappell and Paul Wilson eds, The Australian Justice System (1977) 60.

[3] I note that many of Kriewaldt J’s judgments are unreported. A number of the unreported judgments referred to in this article were viewed by the author at the Supreme Court Library, Darwin, Northern Territory. I am indebted to librarian Frieda Evans for her assistance with accessing these judgments. The only record of some judgments is in the newspapers of the period. Thus the paper has also relied on newspaper reports of some of Kriewaldt’s judgments.

[4] For example Kriewaldt’s judgments continue to be referred to as authoritative in the Northern Territory about sentencing and provocation. See R v Minor (1992) 799 NTR 1 per Mildren J; Mungatopi v R [1991] NTCCA 9; (1991) 105 FLR 161, 166. See for example Daunton-Fear and Freiburg, above n 2.

[5] Armitage argues that the assimilation period lasted from 1930-1970, Andrew Armitage, Comparing the Policy of Aboriginal Assimilation in Australia, Canada and New Zealand (1995) 14.

[6] See Russell McGregor, ‘Wards, Words and Citizens: A P Elkin and Paul Hasluck on Assimilation’ (1999) 69 Oceania 243, 244.

[7] Tim Rowse, Obliged to be Difficult: Nugget Coombs' Legacy in Indigenous Affairs (2000) 17. McGregor points out that Hasluck had offered a very similar description of assimilation in 1952 see Russell McGregor, ‘Nation and Assimilation: Continuity and Discontinuity in Aboriginal Affairs in the 1950’s’ (draft unpublished paper 4-5, available from the author).

[8] Rowse, above n 7.

[9] McGregor above n 6, 244.

[10] According to McGregor, most policy makers dispensed with the doomed race theory in the late 1930s. See Russell McGregor, Imagined Destinies: Aboriginal Australians and the Doomed Race Theory, 1880-1939 (1997) 178-180. See also C D Rowley, The Destruction of Aboriginal Society (1972) 320.

[11] McGregor above n 6, 245; Kriewaldt, above n 2, 31.

[12] See further Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Human Rights and Equal Opportunity Commission, Sydney, 1997.

[13] Generally this was Elkin’s view. See Tigger Wise The Self-made Anthropologist: A Life of A P Elkin (1985) 81, 107, 120, 135.

[14] Benedict Anderson, Imagined Communities (2nd ed, 1983) 6.

[15] Ibid 7.

[16] Tim Rowse, ‘Assimilation and After’ in Ann Curthoys, A W Martin, Tim Rowse eds, Australians from 1939 (1987) 133-149.

[17] For example Welfare Ordinance 1953-1957 NT, s 64 effectively disallowed association between male non-wards and female wards, and Licencing Ordinance, s 141 made it an offence for non-wards to supply alcohol to (and therefore to drink with) wards.

[18] Nancy Williams ‘Law, Laws and “The Law”: Aborigines and the Administration of Criminal Justice, With Particular Reference to the Northern Territory’ (unpublished paper read at the Instructional course for Criminal Justice Personnel, ‘Aboriginal Culture and Values’ Training Programme, Australian Institute of Criminology, Canberra, 1 November 1977, 22, copy on file with author).

[19] Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event (1999) 34.

[20] See especially MacGregor above n 6, but also see for example Wise above n 13, Robert Porter, Paul Hasluck: A Political Biography (1993).

[21] Wolfe, above n 19, 176

[22] Personal email communication with Justice’s son, Martin Kriewaldt (Jnr), 10 September 2002. See also Editorial ‘Leaguers Who Have Made Good’ Luther League Monitor (Adelaide) April 1952, 5, 7 copy held by the Lutheran Archive, Adelaide, South Australia. See also Justice Rice, ‘The Court as it was’ (1986) 2(1) Australian Bar Review 50, 52.

[23] Personal email communication with judge’s son, Martin Kriewaldt (Jnr) 10 September 2002.

[24] Martin Kriewaldt, ‘The Application of the Criminal Law to the Aborigines of the Northern Territory of Australia’ (draft paper 3 held in Archives, National Library of Australia MS5169 folder 2). This comment was subsequently deleted from the final paper, probably by his editor Geoffrey Sawyer.

[25] Justice Kriewaldt’s father was the Reverend E P G Kriewaldt, see the listing for Martin Kriewaldt, Joseph A Alexander ed, Who’s Who 1955 (1955) 444.

[26] During the 1950s the ELCA, operated separately from the United Evangelical Lutheran Church of Australia (UELCA). The ELCA, which can be traced back to German roots, grew out of a more conservative approach than the UELCA. Essentially the difference between the two strands is that the ELCA had a stronger emphasis on biblical doctrine and faithful adherence to the ‘historic Lutheran confessions’, while the UELCA encouraged a more contextual reading of scripture. See H Richard Niebuhr, The Social Sources of Denominationalism (1929) 196. In 1966 the two branches of the Australian church amalgamated and now exist as the Lutheran Church in Australia (LCA). See Paul G E Albrecht, From Mission to Church: 1877-2002 Finke River Mission (2002) 41.

[27] Editor ‘Leaguers Who have Made Good’ The Luther League Monitor (Adelaide), April 1952, 5.

[28] Colin Tatz, Aboriginal Administration in the Northern Territory of Australia (unpublished PhD thesis, ANU, 1964, 260, copy on file with author).

[29] Namatjira [1958] NTJud 19; (1958) NTJ 608, 614.

[30] John Harris, One Blood: 200 Years of Aboriginal Encounter with Christianity: A Story of Hope (3rd ed, 1990) 635.

[31] B Henson, ‘A Straight-out Man: F W Albrecht and Central Australian Aborigines’ (1992) 205, see also ‘Deep Gulf to Cross Before Assimilation’ Northern Territory News (Darwin), 23 August 1955, 4.

[32] Albrecht, above n 26, 11.

[33] F W Albrecht, ‘White Paper’ delivered to Mission Conference in Darwin, reprinted as: ‘Deep Gulf to Cross Before Assimilation’ Northern Territory News (Darwin), 23 August 1955, 4.

[34] See for example Kriewaldt, above n 2, 43, where Kriewaldt refers to Albrecht’s writing. The Northern Territory News also regularly reported Albrecht’s writing. Note also that the Finke mission was part of the UELCA which was the only active Lutheran church in the Northern Territory at the time, see Albrecht above n 26, 41.

[35] An Indigenous community near Alice Springs

[36] Editorial, Lutheran Herald (Adelaide), 4 August 1951, 233.

[37] Personal email communication with Martin Kriewaldt (son) 10 September 2002.

[38] Luther’s Works, Jaroslav Pelikan and Helmut Lehmann (eds), (1955) vol iv, 265-266. This theory has been heavily criticised by Troeltsch on the basis that it discourages political action see Ernst Troeltsch, The Social Teachings of Christian Churches (1931) vol 2, 540.

[39] Eric W Gritsch, A History of Lutheranism (2002) 113.

[40] See the discussion of this theory in H Richard Niebuhr, Christ and Culture (1951) 42-43, 149, 164, 171, 174. Unbelievers belong only to the kingdom of the world, see also Gritsch, above n 39, 112-113.

[41] See John Witte Jr, Law and Protestantism (2nd ed, 2002) 20, 101.

[42] Pastor Fredrich W Albrect, ‘Citizenship For Aborigines’ Alice Springs, January, 1959, copy held at the Lutheran Archives, South Australia 3; ibid 6, 20, 101.

[43] Witte, above n 41, 18, 20, 112.

[44] See ‘New Judge Sworn’ in Northern Territory News (Darwin), 1 April 1952, reporting on the swearing in of Justice Kriewaldt, he is reported to say ‘It would ill become me ... to say more that I have resolved, so far as it may please God to give me ability, strength and courage, to discharge faithfully and truly the duty I have undertaken’. The comment suggests a view that the position is a ‘calling’ or a vocation in the Lutheran sense.

[45] Henson above n 31, 3. See Luther’s thesis 94, which exhorts Christians to be ‘diligent’ in following Christ, see Evangelical Lutheran Church in America http:www.ecla.org (visited 28 July 2003) (copy on file with author).

[46] See Erwin Doernberg, Henry VIII and Luther: An Account of Their Personal Relations (1961) 111.

[47] Hill points out that ‘a life of struggle was ethnic to the Lutheran tribe’. Barry Hill, Broken Song: T G H Strehlow and Aboriginal Possession (2002) 46-47; Lonning also suggests that as a Lutheran the path to Christ entails struggle and affliction. He also emphasises the importance of piety. See per Lonning, The Dilemma of Contemporary Theology: Prefigured in Luther, Pascal, Kierkegaard, Nietzche. (1962) 28-29.

[48] Hill notes that many Lutherans fled to Australia from Germany after the King of Prussia attempted to create a new liturgy; Hill, above n 47, 46. Harris discusses war-hysteria, which lead to missionaries of German origin in Australia being described as ‘alien enemies’ and accusations of ‘Germanising natives’; Harris, above n 30, 403. Historically, the Lutheran church in Germany has always been strongly entwined with government, see Niebuhr, above n 26, 130.

[49] Justice Kriewaldt’s son, Martin Kriewaldt reported that his family faced hostility (as a result of their ‘distant’ German roots) in Australia before they returned to America. Personal email communication with Martin Kriewaldt (son) 10 September 2002. This would have occurred around the time of the First World War.

[50] Evangelism is said to weaken sin. See Thomas McDonough The Law and the Gospel in Luther: A Study of Martin Luther’s Confessional Writings (1963) 94.

[51] Bible Acts Chapter 1 verse 8, Gospel according to Mathew Chapter 28 Verse 19, see for example Evangelical Lutheran Church in America http://www.elca.org (visited 28 July 2003).

[52] The Judge’s son believed that this aspect of Lutheran theology would have helped to shape his father’s views about aboriginal people. Personal email communication with Martin Kriewaldt (son) 10 September 2002. See Witte above n 41, 293, where he discusses the social pluralism encouraged by Lutheran faith.

[53] See Henson, above n 31, 11.

[54] Jean Woolmington ‘The Civilisation / Christianisation Debate and the Australian Aborigines’ (1986) 10(2) Aboriginal History 90, 92.

[55] Ibid 92 quoting from J J Freeman, The Advancement of Nations from the Barbarous to the Civilised State and the Influence of Christianity on that Advancement (1848) 4.

[56] Although the pair did not belong to the same branch of the Lutheran Church it is unlikely that the difference between the branches would have impacted on their approaches to Aboriginal people. I note also that Kriewaldt expressed his admiration for Albrecht in R v Charlie [1953] NTJud 12; (1953) NTJ 219.

[57] Kriewaldt refers to him in his general writing and also in his cases. See for example Kriewaldt, above n 2, 31; Namatjira [1958] NTJud 19; (1958) NTJ 608, 629.

[58] Quoted in ‘Death battle Over Woman’ Northern Territory News (Darwin), 3 April 1958, 1 discuss a case where an Aboriginal man named Leo had pleaded guilty to a charge of assault. Note also Kriewaldt’s comment that: ‘[the] negative and static in emphasis’ policy [of protection] condemned by Professor Elkin in 1937 has given way in the Northern Territory to a policy of assimilation whereby it is hoped to make the aborigine a useful member of the community’ see Kriewaldt above n 2, 31.

[59] See Niebuhr, above n 40, 164.

[60] His views about assimilation were carried into his views about overseas migrants. At a Naturalisation Ceremony the judge noted that migrants could enrich the Australian way of life. He asked the new citizens to become ‘part of the Australian community not only in law but in fact, to adopt the Australian way of life, to adopt Australian habits and to learn the Australian brand of the King’s English’. See ‘Migration Could Enrich Our Way of Life’ Northern Territory News (Darwin), 8 October 1957, 3.

[61] Namatjira [1958] NTJud 19; (1958) NTJ 608, 614, 621. For relevant Northern Territory Newspaper commentary see Northern Territory News (Darwin), 9 October 1952, 1; Northern Territory News (Darwin), 1 October 1953, 6; Northern Territory News (Darwin), 7 June 1955, 2; Northern Territory News (Darwin), 24 March 1955, 5.

[62] Namatjira [1958] NTJud 19; (1958) NTJ 608, 610, 617.

[63] I am indebted to the anonymous referee who pointed this out to me. I note that Kriewaldt was also aware that the matter was to be appealed to the High Court which would make it even more unlikely that he would accept the invalidity of the legislation at this stage of the legal process, see Namatjira [1958] NTJud 19; (1958) NTJ 608, 624 and the appeal Namatjira v Raabe [1959] HCA 13; (1959) 100 CLR 664.

[64] See Niebuhr, above n 40, 174.

[65] Namatjira [1958] NTJud 19; (1958) NTJ 608, 618, 621.

[66] Section 14(1) Welfare Ordinance 1953-1957 NT, or had become ‘sufficiently assimilated’, see Potts v Porter unreported decision, Kriewaldt J, Supreme Court of the Northern Territory, March 1960.

[67] Namatjira [1958] NTJud 19; (1958) NTJ 608, 621. These categorisations almost mirror the categories developed by the anthropologist Elkin, A P Elkin, The Australian Aborigines: How to Understand Them (3rd ed, 1954) 330-331.

[68] Namatjira [1958] NTJud 19; (1958) NTJ 608, 618.

[69] Namatjira [1958] NTJud 19; (1958) NTJ 608, 617.

[70] See Elkin, above n 67, 332, Paul Hasluck, Shades of Darkness: Aboriginal Affairs, 1925-1965. (1988) 108; Kriewaldt, above n 2, 10.

[71] See Alan Powell Far Country: A Short History of the Northern Territory (1996) 202-203; also John Chesterman, ‘Defending Australia’s Reputation: How Indigenous Australians Won Civil Rights Part One’ (2001) 116 Australian Historical Studies 20, 21.

[72] McGregor, above n 10, 161-162.

[73] McGregor above n 6.

[74] Kriewaldt above n 2, 10, and see Ross & Others v Chambers [1956] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 5 April 1956; R v Marikit [1958] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 8 October 1958 [6].

[75] [1958] NTJud 19; (1958) NTJ 608, 621.

[76] For discussions of when Aboriginal people can be sentenced ‘as if they are white’ see R v Anderson [1954] NTJud 5; (1954) NTJ 240, 249, the discussion of the case of Gilligan, ‘Native Gaoled for Bashing Constable’ Northern Territory News (Darwin), 27 September 1955; ‘12 Months for Police Assault’ Centralian Advocate, 30 September 1955. For a consideration of how the missions would continue to effect changes on Aboriginal people see R v Charlie [1953] NTJud 12; (1953) NTJ 219, 222.

[77] I note that Luther advised passive resistance in the face of oppressive laws, see Gritsch, above n 39, 35.

[78] Editor, ‘Miscellaneous News’ Lutheran Herald (Adelaide), 4 August 1951, 233.

[79] Ross & Others v Chambers [1956] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 5 April 1956; R v Marikit [1958] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 8 October 1958 [6]; Kriewaldt, above n 2, 10.

[80] Northern Territory News (Darwin), 9 December 1954, 1.

[81] The judge found that there was provocation and because Chimokee had already served two months in jail, he was sentenced to the rising of the court. Northern Territory News (Darwin), 9 December 1954, 1.

[82] Spelt ‘Papunyah’ in the case report, this community was, at that time, a government controlled reserve.

[83] Northern Territory News (Darwin), 21 August 1959, 4; see also R v Wheeler [1959] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 19 August 1959.

[84] Although Kriewaldt was aware of the doubts held by many people about the desirability of this view, see his directions to juries in: R v Patipatu [1951] NTJud 4; (1951) NTJ 18, 19; R v Wally [1951] NTJud 5; (1951) NTJ 21, 27; R v Charlie [1953] NTJud 10; (1953) NTJ 205, 209; R v Jangala [1956] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 1 May 1956; R v Willie [1955] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 12 May 1955 [168].

[85] Williams, above n 18, 8.

[86] Rowse, above n 7, 17.

[87] See Kriewaldt archive, National Library of Australia MS5169 folder Folder 3: draft article; ‘The Application of the Criminal Law to the Aborigines of the Northern Territory’ 94.

[88] Kriewaldt, above n 2, 20. See also for example R v Muddarubba [1956] NTJud 1; (1956) NTJ 317, 318; R v Smiler 1957 Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 9 December 1957.

[89] Ross & Others v Chambers [1956] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 5 April 1956. There are no records of any other cases of this type.

[90] Martin Kriewaldt, above n 2, 16; Ross & Others v Chambers [1956] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 5 April 1956; R v Marikit [1958] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 8 October 1958 [6]. Note the more recent argument about subjection of Aboriginal people to the criminal law in Walker v The State of New South Wales [1994] HCA 64; (1994) 182 CLR 45.

[91] R v Jangala [1956] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 1 May 1956; R v Willie [1955] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 12 May 1955 [168]. I note that in the 1950’s juries never included Aboriginal people. Jury members were required to be over 21 years, of ‘European extraction’ and resident for 12 months or more in the Northern Territory, and were only used in murder trials; see Jury Ordinance NT 1912-1954 s 5 (pursuant to s 5B of the Jury Ordinance certain half-caste returned soldiers were also able to sit on juries) see also ‘Judge calls for Reform for Outmoded Jury Law’ Northern Territory News (Darwin), 4 August 1955, 3. In this context I note Haebich’s discussion of pamphlets produced by the government to educate white people about assimilation, see Anna Haebich, ‘Imagining Assimilation’ (2002) 118 Australian Historical Studies 61, 63.

[92] Kriewaldt, above n 2, 41; see R v Wally [1951] NTJud 5; (1951) NTJ 21, 27; R v Muddarubba (1951) NTJ 317, 318; R v Marikit [1958] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 8 October 1958 [4]; R v Balir Balir [1959] NTJud 1; (1959) NTJ 633.

[93] Kriewaldt, above n 2, 40, ‘Jury System for Native Trials Condemned’ Northern Territory News (Darwin), 16 May 1957 1, 2.

[94] R v Jangala [1956] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 1 May 1956. In this case the accused hit another Aboriginal person with a stick during a fight. See also R v Patipatu [1951] NTJud 4; (1951) NTJ 18, 19 where Kriewaldt J similarly states that there is no difference between the law relating to ‘white’ people and the law relating to ‘coloured’ people. Note the extended commentary on Patipatu in Centralian Advocate (Alice Springs), 30 May 1951, 4; 6 April 1951, 12; 18 May 1951, 1.

[95] R v Wheeler [1959] Supreme Court of the Northern Territory (Unreported, Kriewaldt J), 19 August 1959 [192]. (Author’s italics.)

[96] Kriewaldt, above n 2, 44; ‘Alice Springs Moves for Special Courts for Territory Natives’ Northern Territory News (Darwin), 12 November 1953, 3; ‘Petition on Native Trial Anomalies’ Northern Territory News (Darwin), 1 December 1953, 2; ‘Jury System for Native Trials Condemned’ Northern Territory News (Darwin), 16 May 1957, 2.

[97] Kriewaldt, above n 2, 44; R v Nelson [1956] NTJud 3; (1956) NTJ 327, 333, 336; R v Panaka [1957] NTJud 10; (1957) NTJ 453, 453.

[98] See Native Administration Ordinance No 14 of 1940 (Northern Territory); Kriewaldt, above n 2, 45.

[99] A full record of the trial is not available and it has not been published in any law reports. Part of the case is available at the Library of the Supreme Court of the Northern Territory. See R v Chambers and Others [1955] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 15 December 1955.

[100] Kriewaldt Archive, National Library of Australia MS5169 folder 8.

[101] Robert Ruark, ‘Scottsboro Case in Reverse: Australia Stamps on Stockwhip Rule’ – probably during December 1955; this article appeared in numerous newspapers in the USA, for example in the Cincinatti Post and Richmond Times Dispatch. The Kriewaldt archive contains an undated copy of the article and a number of letters from Americans praising the judge. See Kriewaldt Archive, National Library of Australia MS5169 folder 8.

[102] R v Chambers and Others [1955] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 15 December 1955 [70].

[103] No author noted ‘Floggings Earn Gaol for Station Owners’ Truth, New Zealand, 21 Dec 1955, no page number noted. Held in the Kriewaldt Archive, National Library of Australia MS5169 folder 8.

[104] Untitled/unauthored report, Sydney Morning Herald (Sydney), 16 December 1955, 1. Held in the Kriewaldt Archive, National Library of Australia MS5169 folder 8.

[105] The judge is not reported to mention the photographs.

[106] Northern Territory News (Darwin), 13 December 1955, 1.

[107] Untitled/unauthored report, Sydney Morning Herald (Sydney), 16 December 1955, 1. Held in Kriewaldt archive, National Library of Australia MS5169 folder 8.

[108] Kriewaldt, above n 2, 23.

[109] For example R v Charlie [1953] NTJud 12; (1953) NTJ 219, 222; R v Patipatu [1951] NTJud 4; (1951) NTJ 18, 19, the case of Leo discussed in ‘Death battle Over Woman’ Northern Territory News (Darwin), 3 April 1958, 1.

[110] Robert Ruark ‘Scottsboro Case in Reverse: Australia Stamps on Stockwhip Rule’ copy of syndicated American article probably January 1955 considering letters included in the archive, held in Kriewaldt Archive, National Library of Australia MS5169 folder 8.

[111] No author noted, ‘So That The Will of the White Man Would Prevail’ Northern Territory News (Darwin), 20 December 1955, 2.

[112] According to Justice Rice the case can be understood in a broader political framework. He notes that at this time Hasluck was being called to account by the United Nations to put an end to ‘extreme maltreatment of aborigines’. See Justice Rice, ‘The Court as it was’ (1986) 2(1) Australian Bar Review 50, 53.

[113] The newspapers reported that Kriewaldt had heard about allegations of slavery in Australia but that he had put this background fact from his mind before making a decision. No author noted; ‘So That The Will of the White Man Would Prevail’ Northern Territory News (Darwin), 20 December 1955, 2.

[114] Kriewaldt, above n 2, 11.

[115] No Title, Northern Territory News (Darwin), 1 March 1956, 1

[116] Williams, above n 18, 6.

[117] Ross & Others v Chambers [1956] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 5 April 1956 [69].

[118] Ross & Others v Chambers [1956] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 5 April 1956 [71].

[119] Ordinance Number 9 of 1953 (Northern Territory).

[120] Ross & Others v Chambers [1956] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 5 April 1956 [71].

[121] Kriewaldt, above n 2, 31,

[122] Kriewaldt, above n 2, 31, in the case of Barney ‘Strip-Poker Game Leads to Manslaughter Charge’ Northern Territory News (Darwin), 4 October 1956, 3; R v Nelson [1956] NTJud 2; (1956) NTJ 324, 336.

[123] Kriewaldt, above n 2, 31; R v Marikit [1958] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 8 October 1958 [7]; R v Charlie [1953] NTJud 12; (1953) NTJ 219, 223; R v Nelson [1953] NTJud 7; (1953) NTJ 186, 187; Lewis v Metcalfe (appeal against sentence) [1959] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 5 May 1959 [62].

[124] Kriewaldt, above n 2, 13, there is a particular message to Aboriginal people here because it asks Aboriginal people to forego customary law practices, see for example R v Patipatu [1951] NTJud 4; (1951) NTJ 18, 19; the case of Leo discussed in ‘Death Battle Over Woman’ Northern Territory News (Darwin), 3 April 1958, 1; R v Balir Balir [1959] NTJud 1; (1959) NTJ 633; Balir Balir’s sentence is discussed in ‘Angry Young Man Kills’ Northern Territory News (Darwin), 10 March 1959, 1.

[125] Kriewaldt, above n 2, 22 and 23; see R v Charlie [1953] NTJud 12; (1953) NTJ 219, 221; also in the case of Daywonga discussed in ‘Court Told of Spear Killing’ Northern Territory News (Darwin), 15 March 1955, 1. Further see ‘Juries and Native Trials’ Northern Territory News (Darwin), 16 May 1957, 2, reporting on a public talk given by the judge where he said: ‘If the rule requiring substantial comprehension of proceedings were applied in the Northern Territory many aboriginals would not be tried.’

[126] Kriewaldt, above n 2, 29.

[127] ‘Laws are Part of Assimilation’ Northern Territory News (Darwin), 21 August 1959, 4.

[128] Kriewaldt above n 2, 31 and see R v Marikit [1958] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 8 October 1958 [6]; Wilson v Porter [1959] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 7 December 1959 [4].

[129] Kriewaldt, above n 2, 31. Ultimately the judge appreciated that the conflicts of policy may mean such co-operation was not possible.

[130] Ibid 8.

[131] Ibid 16. Again this is linked to his idea that Aboriginal customary law required violent retaliation. It was the reliance on customary law that had to be replaced with a reliance on the white legal system. See R v Wadderwarri (1958) NTJ 517.

[132] See for example R v Wheeler [1959] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 19 August 1959 [202], see the case of Leo discussed in ‘Death battle Over Woman’ Northern Territory News (Darwin), 3 April 1958, 1.

[133] R v Charlie [1953] NTJud 12; (1953) NTJ 219, 222. He also sought to send a message to Aboriginal people that white law did not approve of ‘native tribal custom’ R v Tiger and Captain [1953] NTJud 11; (1953) NTJ 211, 216; ‘payback’ see R v Timmy (1959) NTJ 677, 679 or wife disputes see the case of Leo discussed in ‘Death battle Over Woman’ Northern Territory News (Darwin), 3 April 1958, 1.

[134] R v Charlie [1953] NTJud 12; (1953) NTJ 219, 223. Note also the similar attitude expressed in the case of Willie discussed ‘Aborigine Gaoled for Two Years for Tribal Vengeance Killing’ Centralian Advocate (Alice Springs) 27 May 1955, 9, see also R v Willie [1955] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 12 May 1955.

[135] ‘16 Months for Manslaughter’ Centralian Advocate (Alice Springs), 21 August 1959 (no page number).

[136] R v Wheeler [1959] Supreme Court of the Northern Territory (Unreported, Kriewaldt J), 19 August 1959 [202]. See also see the case of Leo discussed in ‘Death battle Over Woman’ Northern Territory News (Darwin), 3 April 1958, 1.

[137] Kriewaldt, above n 2, 31.

[138] See for example R v Anderson [1954] NTJud 5; (1954) NTJ 240, Wilson v Porter [1959] Supreme Court of the Northern Territory No 150 of 1959 (Unreported, Kriewaldt J) no date [295]; R v Jangala [1956] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 8 May 1956 [128]; R v Peppin [1952] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 22 January 1952. Peppin’s case is also discussed in ‘Five Years Gaol Ordered’ Centralian Advocate (Alice Springs), 25 January 1952, 1.

[139] See for example R v Charlie [1953] NTJud 12; (1953) NTJ 219, 223, the case of Daywonga discussed in ‘Court Told of Spear Killing’ Northern Territory News (Darwin), 15 March 1955, 1.

[140] For a detailed discussion of the two forms of assimilation see McGregor above n 6.

[141] His jury directions with respect to provocation suggest this; see for example R v Balir Balir [1959] NTJud 1; (1959) NTJ 633, 637; R v Nelson [1956] NTJud 3; (1956) NTJ 327, 335; R v Muddarubba [1956] NTJud 1; (1956) NTJ 317, 322; R v MacDonald [1953] NTJud 7; (1953) NTJ 186, 189. I note that Yeo has critisised this line of cases saying that they had the effect of promoting a ‘negative stereotype of Aborigines being at a lower order of the evolutionary scale than other ethnic groups’. SMH Yeo ‘Sex, Ethnicity, Power of Self-Control and Provocation’ [1996] SydLawRw 15; (1996) 18 Sydney Law Review 304, 316.

[142] Geoffrey Sawyer; preface to Kriewaldt, above n 2, 1.

[143] R v Balir Balir [1959] NTJud 1; (1959) NTJ 633, 637.

[144] R v Jangala [1956] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 1 May 1956 [121].

[145] See R v Wally [1951] NTJud 5; (1951) NTJ 21, 23. In Doyle’s case the judge commented on the difficulties involved in following the ‘processes of the native mind’ R v Doyle [1953] Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 21 October 1953 [ 302, 305].

[146] Kriewaldt, above n 2, 15: Namatjira [1958] NTJud 19; (1958) NTJ 608, 621, discussion of the case of Leo in ‘Death battle Over Woman’ Northern Territory News (Darwin), 3 April 1958, 1.

[147] Wolfe, above n 19, 34.

[148] ‘The Truth About Namatjira’ Northern Territory News (Darwin), 10 October 1958, 3.

[149] Welfare Ordinance 1953-1957 (NT) s 14(1); people could be declared wards by reason of manner of living, inability to manage affairs, standard of social habit or personal associations, or if they stood in need of special care.

[150] Counsel referred to Welfare Ordinance 1953-1957 (NT) s 14(2)

[151] Northern Territory News (Darwin), 16 December 1958, 1.

[152] Northern Territory News (Darwin), 20 December 1956, 3

[153] R v Anderson [1954] NTJud 5; (1954) NTJ 240, 249; see for example R v Charlie [1953] NTJud 12; (1953) NTJ 219, 223 and the case of Daywonga discussed in ‘Court Told of Spear Killing’ Northern Territory News (Darwin), 15 March 1955, 1.

[154] R v Anderson [1954] NTJud 5; (1954) NTJ 240, 249. See also the discussion of the case of Kevin, ‘Aborigine Draws Long Prison Term’ Northern Territory News (Darwin),, 11 December 1959, 4.

[155] Kriewaldt, above n 2, 16; see also R v Wadderwarri [1958] NTJud 5; (1958) NTJ 516. I note again that Kriewaldt specifically wanted to use the law to encourage Aboriginal people to forego customary law ways of dealing with disputes.

[156] R v Pananka (1951) NTJ 453, 454; R v Nelson [1956] NTJud 3; (1956) NTJ 327, 336, I note in these cases he draws attention to the use of particular weapons by Aboriginal people specifically.

[157] R v Patipatu [1951] NTJud 4; (1951) NTJ 18, 19; R v Wally [1951] NTJud 5; (1951) NTJ 21, 27.

[158] R v Timmy [1959] NTJud 7; (1959) NTJ 676, 677.

[159] R v Charlie [1953] NTJud 12; (1953) NTJ 219, 222, ‘native tribal custom’, R v Tiger and Captain [1953] NTJud 11; (1953) NTJ 211, 216, ‘payback’ see R v Timmy (1959) NTJ 677, 679 or wife disputes see the case of Leo discussed in ‘Death battle Over Woman’ Northern Territory News (Darwin), 3 April 1958, 1.

[160] Namatjira [1958] NTJud 19; (1958) NTJ 608, 621. Kriewaldt J perceived that the drinking laws had essentially a protective function, see for example Lewis v Metcalfe (appeal against sentence) Supreme Court of the Northern Territory (Unreported, Kriewaldt J) 5 May 1959 [62] and the appeal against sentence of Tudawali discussed in ‘Native Actor Appeal Dismissed’ Northern Territory News (Darwin), 11 December 1959, 1.

[161] Raymond Williams, Culture and Society 1780-1950 (1961) 57.

[162] See Benton’s discussion of this analogy and approach, Laura Benton, Law and Colonial Cultures (2002) 254-257.

[163] I note, as Dorsett has pointed out, that this understanding of legal uniformity has constantly constrained the possibility of legal pluralism. See Shaunnagh Dorsett, ‘“Since Time Immemorial”: A Story of Native Title and the Case of Tansitry’ (2002) 26 Melbourne University Law Review 3, 6.

[164] See Bringing Them Home above n 12; Anna Haebich, Broken Circles (2000).

[165] Wolfe above n 19, 213.