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THE RECOGNITION OF ABORIGINAL CUSTOMARY LAWS - 764. Justice (Courts) Project in Aboriginal Communities.
This pilot project, which had been under consideration in the Northern Territory for some years, was initiated in November 1982. Only one community, Galiwin'ku (Elcho Island), has so far been involved. [233] Basically the court is run under ordinary rules but with flexibility to allow local views to be taken into account in sentencing. A group of clan elders sit with the magistrate in order to give their views on the seriousness of the offence and an appropriate sentence. The family of the accused and other community members may also attend court to give their views on the accused's behaviour and appropriate sentence. An anthropologist employed within the scheme is responsible for assessing family and community views both on individual cases and on broader issues. He assesses family structure and proposes strategies for the offender's future. His role is supplemented, and will eventually be taken over, by two locally employed Aborigines who gather information required by the court.

A detailed report is prepared on each offender detailing their information for the magistrate before the offender appears in court. According to the Northern Territory Department of Law the scheme has a number of aims:

1. More community involvement in the system of courts.

2. The community to be able to give more advice in particular court cases, especially facts and background advice and advice as to forms of sentencing.

3. Matters brought before the courts to be dealt with in traditional ways, if that is what the community wants, as long as those ways do not offend existing law.

4. Advice from the communities about the traditional ways of maintaining control in the community.

5. Resolution of some disputes before they get to court.

6. Information concerning the effect upon the community of someone in-the community being jailed. [234]

Although local Aborigines sit with the magistrate, in effect as 'assessors', this is neither a new arrangement nor the most significant aspect of the scheme. [235] What is significant is the work done, by the anthropologist and by two local Aborigines employed under the scheme, to prepare a background report on the offender, and to seek to link relevant kinship responsibilities with the eventual sentencing decision. The anthropologist concerned has:

developed a genealogical index with the permission of the participating Aboriginal clans as a major tool for precisely identifying a defendant and then tracing, through genealogical links, specified kin whose traditional responsibilities toward the defendant included the exercise of specified Aboriginal social controls. This data is then selectively made available on a restricted basis to effect consultation with the defendant's family prior to court and to provide detailed social background reports to the magistrate. [236]

This information has allowed the magistrate, with the advice of senior Aboriginal men, to make better informed sentencing decisions:

Prior to the sentencing of a defendant in the community court there is afforded to the magistrate a reasonable assessment as to whether or not the clan group of the offender has the ability to rehabilitate him in the manner in which they wish, such as isolating him at an outstation, putting him through a ceremony subservient to the authority of older men etc. Although many clans may aspire to do this, the magistrate must have a realistic assessment as to whether or not the clan has the ability to carry out such actions and whether the wider community will allow it to happen. [237]

Thus the scheme concentrates at the sentencing level, with only minor changes to the court itself. [238] A review of the scheme after one year reported an apparent drop in imprisonment rates at Elcho Island, though the figures are far too small, and the scheme has been operating for too short a time, for this to be significant. [239] Of more interest is the observation that:'

the majority of offenders coming before the courts are from clans not living on their own estate but resident in major communities such as Galiwin'ku and Milingimbi, thus subject to considerable internal politics and an often dessicated authority structure. [240]

Although the project is of considerable interest, it is too early to assess its real impact. That should be the subject of an independent review in due course.


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