Nettheim, Garth --- "Summary Jurisdiction on Pitjantjatjara Lands" [1990] AboriginalLawB 29; (1990) 1(45) Aboriginal Law Bulletin 4

• Summary Jurisdiction On Pitjantjatjara Lands
• How Does The Court System Itself Impact On The Communities?

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Summary Jurisdiction on Pitjantjatjara Lands

by Garth Nettheim

A perceptive account of the problems of administering the summary court system in Pitjantjatjara lands, in the northwest of South Australia, was written some years ago by Andrew Ligertwood.[1] I had the opportunity to observe the system in operation during the circuit 7-11 May 1990. The magistrate who usually covers the circuit, Gary Hiskey S.M., had decided to visit the communities by road, instead of flying, so as to get a better feel for the country, and also to allow time to consult with communities. Mr Hiskey allowed me to accompany him and Anangu Pitjantjatjara (AP) granted a permit.

The magistrate now visits the circuit every two months, an improvement on the four monthly routine in the early 1980s. Not every community is visited on every circuit. On this circuit, the western most community, Pipalyatjara, was not visited. The court sat in Amata (7 May), Fregon (8 May), Ernabella (9 May), Indulkana (10 May) and Marla (11 May). (Marla is off the Pitjantjatjara lands and the court rarely hears Aboriginal matters). The community at Mimili has asked that the court sit there from time to time.

There are no formal court facilities in any of the settlements, and the court functions where it can. At Amata, it usually sits in the administration building, but because of construction work, it convened instead in the community hall. At Fregon the court sat in a room in the community administration building. At Ernabella it sat under a tree. At Indulkana it convened in the brilliantly painted community hall. Only at Marla did it sit in a formal, though tiny court-room.

These informal settings can produce some unusual appearances. Dogs regularly wander in and out. At Fregon a cat slept on "the bench" for much of the sitting. Mr Hiskey tells of another magistrate who looked up to see a camel wandering through the court; he picked up his camera, took a photo, and went on to the next case. On one occasion at Ernabella there was a goat under the bench which, he said, led observers to remark that there were two goats in court that day!

Communications present a problem. Charges laid on the lands are channelled through the Marla court offices to Coober Pedy. The magistrate received a court list and papers in Adelaide as do the lawyers in Alice Springs. However, the police prosecutor had files for recent charges that had not reached the magistrate or the lawyers. "Dummy" files needed to be opened to deal with them. Occasionally this has caused difficulties. In one case at Amata, a defendant said that his case had been disposed of, but if this was so, the notation was on a "dummy" file. The case had to be stood over for the situation to be clarified.

In each day's court list there were a number of non-appearances. This is a regular occurrence on the circuit. Bail was generally entreated. In minor cases in which the appropriate penalty would be a fine, the complaint was left to lie on the file; in the more serious cases a warrant was issued on the swearing of a complaint. In several of the cases there was no proof of service and an order was made for a fresh summons to issue. On top of monetary fines there were court costs and (except for AP bylaw offences) an additional levy (which goes to the State's criminal compensation fund).

The magistrate is supported by staff, the Clerk of Courts and a court orderly from Coober Pedy, and his own clerk/stenographer from Adelaide. (They flew in each day from Yulara). The police prosecutor, Sgt Mick Judd, flew in to Amata and then travelled by road. The ALRM lawyer, Hamish McLeod and the lawyer for Anangu Pitjantjatjara, Vincent Peters, travelled by road from Alice Springs. On this circuit two departmental officials also attended, Ray Sowerby, an experienced officer of the Department of Correctional Services, who provided thorough oral pre-sentence reports in several matters at very short notice; and Ivan Riesen, of the Department of Community Welfare who assisted with cases involving children. Another valuable member of the circuit was interpreter Kenneth Ken, originally from Amata. Although the need for interpreters has been recognised as a priority for years, apparently this was the first time an interpreter covered the circuit. Overall, my impression was that all personnel involved brought to the task experience, professionalism and a large measure of co-operativeness and flexibility in making the court system work.

How does the court system itself impact on the communities?

The court list offered some variety. There were a couple of civil matters listed in the Magistrate's Local Court jurisdiction, a variety of summary criminal charges under the general law, and in Marla one committal proceeding.

Motor vehicle offences were common driving under the influence, prescribed concentration of alcohol, uninsured or unregistered vehicles, fail to signal, drive while disqualified. Other charges listed included break, enter and larceny; damage property; assault; Firearms Act offences; disorderly conduct; assault police; resist arrest. There were also charges under AP bylaws relating to liquor (supply, possess, consume) and petrol (possess), but none on this circuit for gambling.

Over the years the jurisdiction of the magistrate's court has expanded, largely at the request of Anangu. For example, because the lands are private land, under the Pitjantjatjara Land Rights Act, 1981, many "road" offences and "public place" offences only applied after legislative amendments were made. Offences relating to liquor, petrol and gambling were the direct legislative creation of AP through its bylaw making power. As stated in the Preliminary Report of SA's Aboriginal Customary Law Committee "It is in the area of drink related and juvenile offences that the greatest problems occur, and it is where the Pitjantjatjara are seeking urgent and substantial assistance from the State.... [They] pose special difficulties in that they are day to day matters requiring immediate, confident, and effective handling, but which lie across the boundary between community and juridical concern, and at the same time fall outside the capacity of communities to control deviant behaviour by use of traditional methods".[2]

Only one police officer is resident on AP lands Senior Constable Darryl McCormack based at Amata. Backup is available when needed from Marla which is dose to the eastern boundary. Each community now has police aides who are part of the SA Police Force, and they have primary responsibility for policing in their areas. The SA Aboriginal Customary Law Committee had in 1984 cautioned against the introduction of a system of police aides, but Mr Hiskey's impression is that the system is working well, better than the earlier system of wardens appointed by the communities. Some of the police aides are significant members of their communities. A few problems were evident during the circuit. In one case of resist arrest, the police aide was attempting to arrest his uncle, and evidence was called as to whether the Anangu respect due to older relatives is displaced by the official position of the younger man. At one community meeting with the magistrate, there were complaints that the aides were not vigilant enough in dealing with people who come in drunk. There were several indications that the work of the police aides may be affected by kinship considerations.

The magistrate held discussion with members of the community at both Fregon and Ernabella. Generally, communities seemed to want stronger action to deal with liquor offences.

To date, the magistrate's sentencing powers have been limited to fines or imprisonment (or bonds). He can also order payment of compensation for property damage, and periods of disqualification for driving under the influence. On this circuit he was able to tell communities that the Correctional Services Department plans to station a fulltime officer at Marla, later in the year, which will make it possible, for the first time, for the court to impose Community Service Orders (CSO's). (See article on SA Aboriginal Community Service Order program on p6). The community meetings expressed a great deal of interest in the scheme and thought that it might work well. The magistrate remanded one case to be finalised at the next sittings so that he might make a CSO (the terms of which he foreshadowed) rather than impose a goal sentence on a man whose organizational work for the community would be virtually irreplaceable.

At one meeting, someone asked whether the court could banish a person from one settlement to another.

Mr Hiskey answered that this could be done in the case of a child by a bond condition requiring the child to reside with a particular relative at a particular place (say, a homeland) but that it would be more difficult in the case of adults. Another questioner renewed a longstanding suggestion that cars which are used to bring grog into the lands be confiscated. The Pitjantjatjara Land Rights Amendment Act 1987 did confer such a power, but problems of implementation are still being worked out. Generally the communities seemed pleased that the magistrate was willing to discuss issues with them and to support Anangu law where possible.

Most of the cases dealt with in the circuit did not, on their face, raise issues of Anangu law though, as noted above, some kinship issues did arise. In one case, when a very senior man was giving evidence, women were asked to leave the court. Interestingly, in one settlement, the prosecutor decided not to proceed with three assault cases after inquiry of elders indicated the involvement of "tribal circumstances". Those involved in the circuit seem prepared to leave space for Anangu law to operate on its own terms.

Two other men also followed the circuit, District Court judge Jack Lewis and David Hope from S.A.I.T. Both are long term members of the SA Aboriginal Customary Law Committee, and they have been asked by AP to advise on aspects of the justice system on the Pitjantjatjara lands. They, too, held meetings with community leaders and will report independently to AP.

One suggestion that was put to them was that some of the liquor offences may also involve Anangu law. Sometimes a drunken man will call out things which other people should not hear. This can be a major offence under Anangu law (akin, perhaps, to blasphemy), and in earlier times might have been punished by execution. The question that was put was whether the court system could deal with such a case? Even if it could (say, by the laying of a separate charge of offensive language or behaviour), by what process could the court address such issues? Only Anangu can assess the seriousness of such an offence. How can this factor be fed into the court system? By testimony? By the use of assessors? By other means?

Grog continues to be a major direct and indirect factor in matters that come before the court. For example, one woman who pleaded guilty to damaging a police vehicle said that she was angry because the police aides had not locked up her husband who had been drunk the previous night.

There are some suggestions that petrol sniffing is becoming less of a problem than it was several years ago, though it is still regarded as a serious issue. Generally, the Pitjantjatjara communities seem to welcome the assistance of the State's police and justice systems in dealing with problems that have their origins in non-Aboriginal sources, and they appreciate the willingness of justice personnel to support the authority of Anangu law.

A fuller appraisal of the operation of. the police and justice systems on AP lands may be expected from the report for AP being prepared by Judge Lewis and David Hope.

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[1] Andrew Ligertwood represented defendants for the Aboriginal Legal Rights Movement (ALRM) in the late 1970':. See Andrew Ligertwood, Aborigines in the criminal courts" in P. Hanks and B. Keon-Cohen Aborigines and the Law George Allen & Unwin, Sydney, 1984, p.191. See also Richard Bradshaw, Community representation in Criminal proccedings (1986) 11 Legal Service Bulletin

[2] Preliminary Report of SA's Aboriginal Customary law Committee Adelaide, September 1979, p.2224