Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Barbara Miller
Extracted from a paper presented at the Australian Institute of Criminology Conference: The Police and the Community in the 1990's, October, 1990.
There is a law and order crisis on Queensland Aboriginal communities of major proportions. The ongoing effects of dispossession, frontier violence and institutionalised violence, such as racism, has left a psychological scar on contemporary Aboriginal Australia. Many Aborigines still recall massacres of their people. The pain and bitterness of these memories leave an aching, crying feeling in the hearts of Aboriginal people and causes a choking of the voice, a wiping of tears from eyes - tears of hate, anger, shame, grief, depression, powerlessness and alienation. It is this pain and the knowledge that Aboriginal people constitute too small a group to regain Australia by forceful or peaceful means that leads Aboriginal people to turn their violence against other Aborigines rather than against white Australia.
Traditional social control mechanisms, such as dispute resolution, have now been corrupted so that they are no longer regulated by a strict set of rules. Under traditional law, dispute resolution occurred in public, blockers were used to prevent serious harm and alcohol was not involved. The introduction of European law and order and alcohol has almost destroyed this process.
The traditional role of men in Aboriginal society has been eroded and there are few opportunities for men to raise their self-esteem. Men use violence against women to re-assert their authority. Homicide, assault, rape, and suicide occur as a result of Aboriginal men's fear of loss of a valued relationship and jealousy over their wives or defactos. This fear takes on greater proportions when it is experienced in the context of few alternatives (such as meaningful employment) to develop a sense of self-worth.
In North Queensland Aboriginal communities, the destruction of traditional social control systems and the imposition of European laws that are inadequate for Aboriginal communities has led to a situation where Aborigines are seven times more likely to appear on homicide charges, fifty times more likely to appear on major assault charges, thirty seven times more likely to be charged with rape, thirty-one times more likely to appear on break and enter and twenty-two times more likely to appear on Liquor Act offences.[1] Juvenile crime rates are also high with Aboriginal children, under the age of 15, being 21 times more likely to be the subject of a court order for an offence than a non-Aboriginal in that age group.[2]
The constant refrain of police on communities is that 90%-95 % of crime is alcohol related and the constant complaint of nursing staff is that 90 % -95 % of health problems are a result of alcohol.
An "alcohol culture' has developed on some communities where it is almost considered deviant not to drink, and socialisation of the young works to encourage heavy drinking and fighting behaviour. A constellation of social and economic conditions such as poverty, high store prices and inadequate nutrition, poor housing, and little employment, create conditions which Wilson has termed "violence provoking" (Wilson 1982). Added to this is the pressure of overcrowding. Two or three families often live in one household with sometimes up to twenty people living in a three bedroom house. The forced movement of clans onto reserves has meant that some clans are living on another clan's area and this inevitably leads to conflict.
Support for the movement of clan groups back to their own lands and the establishment of outstations like Aurukun will relieve the pressure back in the main settlement. It is time governments responded in a way which empowers Aboriginal people to find their own solutions at a local community based level. As Wilson (1982:97) so eloquently states:
"Most Australians, would not acknowledge the responsibility they bear in the acts of murder and self-mutilation that occur on Aboriginal reserves (now trust areas). But by taking traditional black homelands, by refusing to allow Aboriginal self-determination and by actively enforcing on Aborigines an assimilationist framework, we have subjected them to fatal psychic trauma that manifests itself in alcoholism, self-effacement and self-destruction. "
The present system of law and order on communities is not working. Although there are Aboriginal police and community courts presided over by JP's (who dispense law based on Aboriginal Local Government Council by-laws) it is still the European system of law and order that is operating. Governments must empower Aboriginal communities to adapt customary laws to their present social control mechanisms, or else the present scandalous situation will continue.
In 1984 a form of land tenure was granted to the Aboriginal Co-Ordinating Council (ACC) Communities with the "Deeds of Grant in Trust legislation", Aboriginal Councils became trustees for the ex-reserve land now owned communally and called trust areas.
In the same year, the AboriginesAct 1971 (QLD), which was discriminatory and contained a large number of infringements of human rights, was replaced by the Community Services (Aborigines) Act 1984.[3] The intention of this legislation was to give local government status to Aboriginal communities living in trust areas. The Queensland Government made little attempt to ask community councils what they wanted to see in the new Council by-laws, nor was there any effort by the Government to assist the councils to develop culturally appropriate by-laws or to implement the recommendations of the Law Reform Commission Report on the Recognition of Aboriginal Customary
Laws.[4]
Instead the Aboriginal councils were advised to adopt the "Mt Perry" by-laws, which were devised for a non-Aboriginal council. Yarrabah was the first to do so and a number of other councils have followed suit because no alternatives were given. These by-laws are inappropriate as many provisions are irrelevant and some important matters, like land management issues are not covered. Injinoo and Kowanyama Councils however, have separately sought legal advice and drawn up more appropriate by-laws. Some communities still do not have new by-laws. They are operating under the out dated by-laws that pertained to the discriminatory Aborigines Act 1971(QLD) that no longer exists. This is a disgrace!
The ACC puts such a high priority on its by-laws project (for which it is still seeking funding) because, by-laws are perceived to be the main avenue for law reform in communities. However, the current Queensland legislation needs to be reviewed so that it can be more culturally appropriate, allowing Queensland Aboriginal communities to recognise and/or re-introduce customary laws and traditional dispute resolution mechanisms.
By-laws are also an avenue for communities to be more self determining. Aboriginal by-law making powers should be wider ranging than non-Aboriginal by-law making powers. This is important because many of the problems faced by the communities today stem from their loss of control over their lives.
Under the previous Queensland government, the Crown Law Department continually rejected sections from proposed councils' by-laws. The previous Government would not recognise cultural differences in the communities. It is hoped that this will not happen under the present Labour Government.
The concept of mediation is that it is non-coercive, non-punitive and that the mediator is not the arbitrator but facilitates the process of getting disputants to talk and to hear each other so that they can agree upon a solution.
Aboriginal communities want mediation centres with trained local Aboriginal people as mediators. Aboriginal JP's, community police and women's groups have also expressed interest in mediation training to improve their personal and work skills. Mediation is more suited to Aboriginal communities than the western adversarial justice system. Jacob Wolmby, an Aurukun councillor said "mediation is what we do anyway". In an Aboriginal community, mediators would need to involve a number of kin for the mediation process to be effective.
Mediation, as well as being a preventative measure could also be used as a sentencing option by the Community Courts or Magistrates Courts depending on the severity of the offence. Restitution might be agreed upon between parties with the help of a good mediator.
Since colonisation Aborigines have distrusted police because they were used to move Aboriginal people off their land and to protect white squatters. Children were stolen by police from their Aboriginal mothers and taken to settlements designed as training grounds to assimilate them into white society. Many were never to see their families again. Some were hired out as cheap labour for station owners.
Until recently, the bank books of Aboriginal people were held at the local police station by the local police "protector". As literacy and numeracy levels were low, Aboriginal people suspected, but could not prove, that they were receiving less money than they were owed. One police station in North Queensland was burned down when there was talk of an inspection of its records.
There are many instances of Aborigines in all states being discriminated against by police - being harassed at pubs, being beaten up at demonstrations, and being bashed in police cells. Rape of Aboriginal women by police has not been uncommon. There is distrust even hatred of police and fear of going to gaol. One young Aboriginal male hung himself in Melbourne in 1988, rather than be returned to Yarrabah for fine default and breach of community service orders for traffic offenses, because he had previously been assaulted by police there. A chairman from Yarrabah Council, Percy Neal, was forced to leave Yarrabah for 12 months as a result of police harassment and members of the Yarrabah Land Rights Committee were intimidated over a period of years by police spotlighting their homes on night patrols.
This is not to say that there are no police who have assisted Aborigines, worked hard and won the respect of Aboriginal people. However, the historical background of Aboriginal-police relations in particular, and Aboriginal-white relations in general, is one which has led to a situation where Aborigines are 40 times more likely to experience custody than non-Aborigines and are very likely to experience such custody as frightening, alienating and unjustified.
Many Aborigines feel that they are "political prisoners" - gaoled by the discriminatory laws of a racist society. A society whose very foundation is illegal, immoral and based on the lie - that Australia was "terra nullius" or uninhabited. Traditional Aboriginal lore has largely been replaced by white law, Aboriginal custom and religion much interfered with by white society's rules, priorities and lifestyles, traditional economics have been destroyed by the theft of Aboriginal land and Aboriginal sovereignty and self-determination has been denied. Such marginalisation has been in the name of progress.
There should be a screening process to weed out racist police, so that they do not work in areas with high Aboriginal populations. A recent move by the Queensland Police Department to involve Aboriginal councillors on the interview panel to select State Police applying to work in communities has been welcomed. It is necessary that State Police be trained with in-service courses in Aboriginal studies and inter-cultural communication skills. These courses should be designed and taught by Aboriginal people.
State police need to make more use of pro-active policing, getting preventative programs going such as blue light discos and other recreational activities to build up a rapport with young people. Police also need to use their discretionary powers more e.g. to ignore some matters or deal with them informally by giving advice on conciliation, or formally by caution.
Queensland Aboriginal communities want their community police to be trained. Training modules need to be developed to teach pro-active, crime prevention, and mediating skills. Kayleen Hazelhurst of the Australian Institute of Criminology, was asked by the ACC to prepare a community police training manual and video in conjunction with the Queensland State Police. This was quite innovative, but there have been several problems. The trust areas are a very large area for one policeman to do community police training along with his other responsibilities. Also, by the time he gets around to a community to do another module, some police have been replaced so he has to start again. Community police have a high drop-out rate because it is difficult to arrest relatives and there are anti-police feelings on communities. Cultural prescriptions regulating interaction with close kin sometimes hamper police duties. It is also difficult for community police to arrest councillors or their families when they are employed by councils. A career structure, decent pay, and decent resources should be provided to community police to increase morale. The Royal Commission into Aboriginal Deaths in Custody found that the senior Aboriginal police officer on Wujal Wujal was an untrained teenager.
Very few community police are likely to go to the Police Academy in Brisbane to be trained as State Police because of not wanting to leave home for study and because of the need for a bridging course to cope with the study requirements.
In addition, on completion of the courses they can be posted anywhere in the State, which they do not want. This makes it important to provide adequate, regular on-the-ground training. It is not appropriate for community police to have criminal records themselves and a better selection process is required. More female community police are needed, in particular for search procedures with arrested women. Community police should be selected by the community and should be trained to support the use of traditional mechanisms of dispute resolution and social control.
The Northern Territory police aides scheme could be adapted to the Queensland Communities' requirements. It works because police aides are selected by the community, allowing for tribal authority and the endorsement of all clans. Tribal mechanisms of dispute resolution and social control are utilised wherever possible. There are also suitably trained police supervisors along with responsive two-way communication from State Police via Aboriginal police to the Aboriginal Community. Funding should be made available for Queensland Community Police to visit the NT to see how the Police Aide scheme works.
An ACC Working party on the Community Services (Aborigines) Act 1984 recently recommended that community police training occur at a residential training centre on a north Queensland Aboriginal community, supplemented by on-the-job training. This would be preferable to going to the Police Academy in Brisbane, although it could be a stepping stone to the Academy for those who wish to go. Aboriginal-police liaison committees could be set up on each community to facilitate greater Aboriginal input into the policing of the communities.
Queensland Aboriginal Communities feel strongly that community police should have powers of arrest, and that the Community Services (Aborigines) Act 1984 should be amended so that community police, and Aboriginal councils as their employers, are exempt from liability for their actions. This would make it even more important that police be trained adequately.
A major stumbling block to introducing into Queensland, a scheme similar to the NT Police Aide Program would be the employment of Aboriginal police by the State Police force. Presently the Aboriginal community police in Queensland are employed by Aboriginal councils and most councils would prefer it this way. Some councils, e.g. Hopevale, do not feel it is necessary to have any State Police in their community while other councils (e.g. Wujal Wujal) have requested in vain to have State Police stationed there. (Wujul Wujul presently has no Community Police, State Police or JP's to hold Community Court and no watch house to detain offenders in.)
The present system consists of a community court which is presided over by two Aboriginal JP's or three Aboriginal councillors, often elders in the community. They hear matters related to by-law offences which apart from the usual local government by-laws, include social order offences such as drunk, drunk and disorderly, offensive language etc. However, a number of problems arise. Firstly, JP's lack training. They have no support staff or facilities and there is no clear definition of their role. They have difficulty in remaining aloof from community conflicts or dealing with relatives. Secondly, court hearings are infrequent and it is still a white system of justice which is only administered by Aboriginal people. This leads to a lack of faith in community courts by some Aboriginal people who call them "Kangaroo Courts".
One reason for the infrequency of court hearings is that JP's are often old and too sick to attend court or they are tied up with other jobs in the community which take precedence because JP's are unpaid. More JP's need to be appointed, proper training needs to be provided and remuneration must be considered.
A review into the appropriateness of the community court system needs to occur before a decision is made whether to keep it or not. With reform, however, it is a possible vehicle whereby customary laws could be recognised. Presently, there is no legal representation of Aborigines in community courts and the maximum penalty for a breach of by-laws is a fine of $500, fines being the only sentencing option.
Community courts should have increased jurisdiction allowing Aboriginal people to deal with most juvenile offenders, or to advise the court on juvenile offenders (and child abuse and neglect). The procedures and informality of the small debts and small claims courts and tribunals in Queensland should have application within the community court system.
The two-tiered system of justice on communities means that offences that result in charges under State laws are dealt with by visiting magistrates. These magistrates visit communities on a regular basis every 2 or 3 months and deal with cases over a 2 to 3 day period. Most matters are dealt with summarily.
Aboriginal advisers from particular interest groups in the community should sit with magistrates. Different groups could be recognised as capable of advising the court in their specific area of concern, e.g. domestic violence, children etc. Aboriginal customary laws should be recognised and the courts should be vested with some statutory discretion to have regard to customary law and punishment. Governments which have not already done so should legislate to enforce the principle that imprisonment should be utilised only as a sanction of last resort.
The current legal system operating in Queensland is completely inappropriate to deal with the unique problems faced on Aboriginal communities. As a result, violence on the communities is out of control. The need for the return of traditional social control mechanisms must be addressed by the Queensland Government by setting up an inter-departmental committee and inviting representatives from Aboriginal community groups, such as the ACC, to attend.
Australian Bureau of Statistics, Law and Order, 1989
Miller, B. 1. (1986) The Current Aspirations of Aborigines Living at Yarrabah in Relation to Local Management and Human Rights, Canberra, Human Rights Commission.
Miller, B. J. (1990) The Aboriginal Co-Ordinating Council's Submission to the Royal Commission into Aboriginal Deaths in Custody, Aboriginal Co-Ordinating Council, Cairns.
Roberts, J. P., Russell, B. and Parsons, M. (ed) (1975a) The Mapoon Story by the Mapoon People. Vol. 2 Fitzroy, Via International Development Action.
Taylor, J. C., Smithson, M. J., Reser, P and Reser, J. P. (1989) A Community Profile of Yarrabah, Prepared for The Royal Commission of Inquiry into Aboriginal Deaths in Custody. Townsville: James Cook University of North Queensland.
Wilson, P R. (1982) Black Deaths White Hands, Sydney Allen and Unwin.
[1] Australian Bureau of Statistics, Law and Order, 1989.
[2] K. Colahan, ACC Data Base Project, 1990.
[3] For a thorough discussion of the inadequacy of these pieces of legislation see Miller (1986) and the ACC's 1989 submissions to the Queensland Government requesting changes to the Community Services (Aborigines)Act 1984.
[4] The Law Reform Commission, The Recognition of Aboriginal Customary Laws, AGPS, Canberra, 1986.
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