Introduction

803. The Range of Options. As is clear from the Australian and overseas experience described in the preceding chapters, many different structures have been adopted or proposed in response to demands for local justice mechanisms for indigenous groups. The limitations of some of these structures, and the extent to which they depend on local history and circumstances, will also have become clear. Nonetheless, proposals have been made for local justice mechanisms of different kinds for Aboriginal communities.[1232] The range of options includes:

• local autonomy over a range of law and order matters,

• Aboriginal courts or similar bodies officially constituted;

• specially designed structures aimed at overcoming the difficulties often experienced with ‘Aboriginal courts’ (e.g. the Yirrkala scheme);

• bodies with power of mediation and conciliation (at distinct from adjudication);

• administrative measures for recognising Aboriginal customary laws; and

• changes to the existing courts (e.g. by way of ‘Aboriginalisation’).

804. Criteria for Suitability. Each of these options will be discussed in this Chapter. In judging the suitability of any existing or proposed structure for resolving disputes at the local level, a number of matters have to be considered. Some of these have been discussed in Part II of this Report and in the preceding chapters in this Part. They include:

• the acceptability of the proposal to the relevant local community or communities;

• the conflicts between introduced and local authority structures that Aboriginal courts or other official structures can create or intensify;

• the administrative feasibility of any scheme, in the light of differing, and often rapidly changing, circumstances;

• the need to maintain basic individual rights in the administration of justice; and

• constitutional constraints on direct federal action in establishing local justice mechanisms.

805. Aboriginal Self-Management or Self-Determination. The point has already been made that new structures should only be introduced with the full agreement of those affected.[1233] As one oral submission put it:

This community [Strelley] could achieve a great deal in this area developing their own resources from within but dealing with the question of law and order and Aboriginal people, not only for Strelley but for the Western Desert area, given appropriate opportunities, but the opportunities have to dwell within the people themselves; they have to come from within the people. Only the Aboriginal people can solve the problem.[1234]

A similar view was put by Mr David Hope, who questioned the extent to which the Pitjantjatjara perceive a law and order problem in their communities, and commented that decisions about what action, if any, should be taken, must be for the Pitjantjatjara themselves:

It would not be a question of the Pitjantjatjara working to an exotic legal base, but rather developing the particular institutional modes to suit their circumstances. This course would require from the Pitjantjatjara an initiative to seek answers through political negotiation, and that in turn would depend on their deciding really where issues in law and order come in their priorities. But that process will always be prejudiced if professionals are unyielding in the view that professional judgment has unchallengeable prerogatives in determining what is politically ‘proper’.[1235]

806. Administrative Feasibility. Plainly, any scheme proposed needs to be a practical one, taking into account the diversity, smallness and (especially in remoter areas) decentralization of Aboriginal communities.[1236] Care has to be taken to avoid introducing cumbersome administrative arrangements, possibly duplicating existing systems, with only marginal benefits. The Commission’s work on this Reference has made it clear just how diverse and particular are the needs and requirements of the Aboriginal communities spread across Australia. Administrative practicalities are thus an important consideration in assessing particular proposals.

807. Due Process. In Chapter 9, reference was made to the various internationally recognized human fights, prominent among which are due process rights.[1237] For example, Article 14 of the International Covenant on Civil and Political Rights of 1966 guarantees important due process safeguards especially in criminal cases. They include:

• the right to a fair and public heating by a competent, independent and impartial tribunal established by law (Art 14(1));

• the right to be informed promptly and in detail in a language the defendant understands of the nature and cause of the charge (Art 14(3)(a));

• the right to have adequate time and facilities for the preparation of one’s defence and to communicate with counsel of one’s own choosing (Art 14(3)(b));

• the right to be tried without undue delay (Art 14(3)(c));

• the right to defend oneself and (in certain cases) the right to legal aid (Art 14(3)(d));

• the defendant’s fight to ‘the free assistance of an interpreter if he cannot understand or speak the language used in court’ (Art 14(3)(d);

• the right, in the case of a person convicted of a crime, to have conviction and sentence reviewed by a higher tribunal according to law (Art 14(5)).

It should be stressed that these guarantees are intended to operate in a very wide variety of circumstances, and in very different legal systems. It is necessary to read Art 14 as providing workable guarantees in cases of summary trial for minor matters as well as trial for the most serious offences. Obviously the requirements of the Convention will depend to a considerable extent on the context, the offence and other relevant circumstances. It cannot be argued that the establishment of local ‘traditional courts’ or similar mechanisms will necessarily involve breach of the Convention standards, provided appropriate procedural guarantees are established.[1238] Such local tribunals may be the only alternative to existing courts of summary jurisdiction staffed (in some cases) by untrained non-Aboriginal justices of the peace.[1239] In other words they may be an improvement on the only other available alternative. But basic standards of due process need to be maintained in courts and other officially established justice mechanisms.

808. Constitutional Constraints. The Commonwealth Constitution imposes significant constraints upon direct federal action in establishing community justice mechanisms (whether in the form of courts or other bodies). This affects significantly what the Commonwealth could itself do in this area. In this Report constitutional and Federal-State issues have been left to be discussed in Part VIII, in the context of implementation of the Commission’s proposals. But in this area the constraints are considerable, and they need to be briefly described here.

• The Position in Federal Territories. Fewest constitutional problems arise in the Territories, since many of the restraints imposed by the Constitution on the exercise of jurisdiction under Commonwealth law do not apply to courts and similar bodies established for Territories under s 122 of the Constitution.[1240] However the most relevant Territory, the Northern Territory, has since the grant of self-government in 1978 been treated as equivalent to a State for most purposes, although it does not have the constitutional status of a State.

• The Position in the States. The position in the States is much more complex. For present purposes a number of different problems arise:

· Establishment of Federal Courts. If the Commonwealth wished to establish special Aboriginal courts to exercise some form of coercive jurisdiction in a State, such courts would have to be established in accordance with Chapter III of the Constitution. The judges of such courts would have to be appointed by the Governor-General in Council, would be removable only with Parliamentary approval, and would hold office until a fixed retiring age.[1241] As federal judges they could only exercise judicial powers or powers properly incidental to judicial powers.[1242] It follows that the Commonwealth Parliament could not itself set up indigenous courts along the lines of the Papua New Guinea village courts[1243] to exercise judicial power in any of the States. Proposals for such courts characteristically envisage short-term or ad hoc selection or election of judges at the local level. It is also not clear to what extent the Commonwealth could give such courts a combination of judicial and mediatory or conciliatory functions.

· Modification of existing State courts. Alternatively the Commonwealth might seek to modify existing State courts in respect of their exercise of jurisdiction over Aborigines in appropriate cases, to take into account local traditions or processes. Modifications might be made in this way to ordinary courts such as magistrates courts or Supreme Courts exercising jurisdiction with respect to Aborigines, or to special courts such as the Aboriginal courts in Queensland.[1244] Assuming that such modifications would be within power under s 51 of the Constitution, as legislation for the Aboriginal people affected (s 51(26)) or otherwise, federal jurisdictional problems can still arise. The cardinal principle is that, while the Commonwealth can (by otherwise valid legislation) modify the procedures to be applied by State courts in their exercise of jurisdiction,[1245] it cannot alter the ‘structure’ or ‘constitution’ of those courts.[1246] A second limitation is that the Commonwealth Parliament may not vest non-judicial power in State courts, even if it would be consistent with their ‘constitution’ or structure to exercise such power.[1247] Together these rules considerably restrict what the Commonwealth can do, and great care is needed in the formulation and drafting of any proposals (although more flexibility is possible than with special federal courts). Thus the Commonwealth could probably empower (if not require) a State court to sit with and consult Aboriginal assessors in appropriate cases, but clearly it could not give such assessors voting or decisional power. It could not require a court to sit in camera in all cases involving Aboriginal customary law,[1248] although it could probably empower a court to adopt special procedures in such cases (including a power to sit in camera) in terms that would go some way towards preserving secrecy.[1249] The Commonwealth cannot appoint judicial or other personnel to State courts[1250] although it has some limited control over the composition of courts of summary jurisdiction exercising federal jurisdiction.[1251] On the other hand other reforms in the rules of evidence and procedure, considered in Part V, present no particular problems since they do not involve the creation of special structures or the addition or substitution of personnel in State courts or agencies.

· Establishment of Non-court Procedures. There may be scope for the establishment of non-court procedures in this field, and for consequent diversion away from State courts. For example a mediation scheme such as the New South Wales Community Justice Centres[1252] does not involve any exercise of coercive or judicial power and could be established for an Aboriginal group or community by federal law, if this were otherwise desirable. Federal or State courts dealing with a case could be empowered or required to adjourn, pending attempts at mediation through such a scheme. The validity of any machinery of this kind would depend very much on the particular proposal: the central restriction is that no exercise of judicial power can be involved.

• Co-operative Federalism. Some of the constitutional constraints may be overcome through cooperative federalism. In some areas it may be more appropriate for joint Federal State action, rather than the Commonwealth being directly involved.