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10.6.1 Aboriginal people have experienced an anomalous position in relation to British and Australian law. Prior to and after contact, Aboriginal communities had their own system of law, with its logic and rationale tied in with the holistic philosophy of the Dreaming. Rather than abstract principles of 'justice ', their laws were evoked more directly and on a more personal basis to maintain or regain community harmony.41 Theoretically, Australian courts have held that their laws applied to Aboriginal people and non-Aboriginals alike 'except to the extent that the legislature had seen fit to make differences or to allow exceptions'.42 Some attempts have been made to accommodate tribal law, such as the native courts established in Western Australia which operated between 1936 and 1954. 'Tribal custom' could be taken into account in mitigation of a sentence, though not as a complete defence.

10.6.2 Usually Aboriginal people have been subject to general Australian laws, and additionally to a range of special laws which prohibited and restricted their movements and associations. While theoretically Aboriginal people were to be treated as British subjects, they 'suffered severe disabilities in the courts'.43 They were not given equality of legal status, yet were perceived as law-breakers. Because they were not Christians, they often could not testify in court (amended in Western Australia in 1841, New South Wales in 1876). In many colonies, legislation entitled police and justices of the peace to exercise extraordinary powers over Aboriginal people. Pastoralists, miners and other employers of Aboriginal labour were often appointed as justices of the peace and magistrates. They tried cases relating to their own or their neighbours' employees, and sent out their station 's employees to assist in police efforts to quell Aboriginal actions. In Western Australia, for example, Aboriginal protectors, who were often police, had special duties to 'minimise the annoyance caused by the aborigines' by nudity, begging, etc. In 1849, Aboriginal people could be tried summarily for criminal offences (excluding murder, arson, rape) by two or more justices of the peace and sentenced with up to six months imprisonment plus corporal punishment for male offenders.

10.6.3 Many legal impediments existed to Aboriginal people giving evidence and exercising their rights as individuals. In some colonies they could not press charges, were held corporately guilty for the crimes of others, and were not permitted to give evidence because they were pagans. But even the lifting of restrictions on giving evidence meant little. The justice system was especially alienating for people who were not familiar with this facet of Western culture. Aboriginal people often understood little English, and thought they were to provide required answers rather than an objective 'truth'. Juries were mainly non-Aboriginal, and rarely sympathised with the Aboriginal defendant or believed Aboriginal witnesses. There was a certain protocol to be observed. Even if a non-Aboriginal man had provoked the attack, the lesson had to be taught that Aboriginal retaliation was not acceptable. In the 1920s and 1930s, numerous cases which Charles Rowley described as 'spectacular injustice' occurred through the courts. These highlighted the conflicts between traditional Aboriginal and British style law. But even more, they drew attention to the fact that Aboriginal people were not receiving justice under the Australian system. In a survey of the North Queensland circuit court between 1882 and 1894, a quarter of Europeans charged with violent offences against Aboriginal people were found guilty, and none were sentenced to be executed, despite the high proportion of murder cases. 44

10.6.4 Race was a crucial factor in administering justice, as shown by studies of the 1888 rape case of a Victorian Aboriginal woman and of rape cases concerning Aboriginal men.45 In Northern Territory murder trials from 1884 to 1911 all nine Aboriginal people charged with the murder of non-Aboriginal people were found guilty, and three were executed. In the cases where non-Aboriginal people were charged, they were very rarely found guilty, and the murderer was released after a short term. In 1913 Judge Bevan wrote to the Administrator:
Juries will not convict a white man for an offence against a black, certainly if the evidence is that of blacks, whereas on black evidence there is no difficulty in the way of securing a conviction against a black. The jury system may have worked well where the population is all one colour, but the introduction of racial antipathies goes far to undermine the principles of trial by Jury.46

10.6.5 Some of the scandals which occurred in the 1920s and 1930s in the far north related to police involvement in actions against Aboriginal people (for example, the Coniston and Forrest River massacres). Others involved cases of suspicious deaths in police custody and a police officer was charged with assault in the Borrooloola district. He was acquitted of a charge of assault on an Aboriginal male prisoner, and of assault on an Aboriginal woman, 'Dolly', who died in his custody. The Supreme Court judge found him innocent, stating that all the Aboriginal witnesses were 'liars'. Witnesses were certainly treated contemptuously and it was common for Aboriginal witnesses to be chained and imprisoned until the hearing.

10.6.6 In the case of R v. Tuckiar (1934) in the Northern Territory an Aboriginal man was charged with the murder of Constable McColl, and was found guilty, despite corroborated evidence of provocation. McColl was alleged to have engaged in sexual intercourse with Tuckiar's wife but of having refused to compensate the husband. The High Court overruled the decision, unanimously ruling that Tuckiar should be released into the custody of the chief protector. Tuckiar disappeared the next day without trace.

10.6.7 As can be seen from this brief review, Aboriginal experience of the court system was one of discrimination and repression. The courts were seen to be acting on behalf of other interests and to be imposing a foreign culture. That historical experience remains very much the perception of the courts today held by many Aboriginal people.

Source
Royal Commission in Aboriginal Deaths in Custody
National Report
Volune 2
Chapter 10
Australian government Publishing Service Canberra 1991
Full report available on the web.