State Records Office of Western Australia
Title: Transcript of evidence 1934
Item 1 & Item 2
Aborigines Royal Commission 005-3
Tuesday, 13th March, 1934
H. D. Moseley, Esq., Commissioner.
AUBUR [sic] OCTAVIUS NEVILLE, Chief Protector of Aborigines, further examined:
I refer to Sections 118-120 of the Licensing Act, Section 45 of the Aborigines Act. The Licensing Act does not include half-castes, nor does it enable exempted aborigines or half-castes to obtain liquor. The object we have in view is to make it an offence to supply liquor, either to aborigines, half-castes or coloured persons, unless exempted, and to exclude those from licensed premises unless similarly exempted. In practice, most cases are taken under the Aborigines Act, as it has a wider application than these sections of the Licensing Act. It is proposed to insert a new section after Section 45 of the principal Act as follows: —
“45A.(1) Any person being the holder of a publican’s general license or wayside house license who shall permit or suffer any aboriginal or half-caste not exempt from the provisions of this Act to enter remain in or loiter about his licensed premises shall be guilty of an offence against this Act,
(2) Any aboriginal or half-caste not exempted from the provisions of this Act who enters or remains on or loiters about the premises in respect of which a publican’s general license or wayside house license under the provisions of the Licensing Act 1911-22 is held shall be guilty of an offence against this Act provided that this section shall not apply to any aboriginal or half-caste employed on the licensed premises under a permit granted by the Chief Protector.”
With regard to the first part, it has been ruled by the Crown Law Department that “aboriginal” means an aboriginal, defined under Section 2 of the Act and not under Section 3.
83. There is no definition under Section 2? — It says an original inhabitant of Australia; in other words, a half-caste is deemed to be an aboriginal is not included in the Section.
84. The definition in Section 2 is that of a half-caste. You have to read Section 3 to find out the definition of “aboriginal”? — I was thinking of the amendment we propose to make defining an aboriginal in that section.
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I have here a minute by the Assistant Crown Solicitor written in 1932 and dealing with the definition of “aboriginal”. I put in the Chief Secretary’s department file No. 302/32 (Exhibit 22). Our object is to prevent natives, half-castes or coloured parsons obtaining liquor unless they are definitely exempted. A considerable number of people are getting liquor. At Wagin the other day the suppliers claimed that some they supplied did not come under the Act, but the Protector won his case. The last proviso in the proposed new section covers the granting of a license by the Chief Protector to a publican who may wish to employ a native on his premises. We give permission to publicans in the North only to employ as a yardman a male native, but we do not allow any females on the premises. Under regulation, the Chief Protector has power to give a special permit for that purpose. Sections 47 to 52 deal with firearms. These sections should be restored, but I do not think that is likely to happen. I recognise the wisdom of having one authority only to deal with the issue of licenses for firearms.
85. Probably anything that is done in that direction should be done by amending the Firearms Act? — The Commissioner of Police should work in conjunction with the Protector in regard to licenses to natives, so that there may be no injustice done to them. If the matter is left in the hands of the police, very few natives, as we know, will be permitted to carry firearms. Section 58 of the Act deals with penalties, it is proposed to increase some of the penalties which, in our opinion, are insufficient. We propose to substitute the words “three years” for “six months” in the fourth line, and to substitute the words “one hundred” for “fifty”.
86. That is the maximum term of imprisonment ? — Yes. We also propose to add the words “or both” after “pounds” in the last line. In the North, men, particularly Asiatics,
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are constantly being brought up for supplying liquor to aborigines. They pay the fine of £50, but commit the same offence soon afterwards. The penalties are less than those provided in other ordinances in Australia. It would be a good check on wrongdoing if the penalties were increased. It is proposed to amend Section 59A. of the principal Act by inserting a new subsection as follows :—
“No admission of guilt or confession before trial shall be sought or obtained from any aboriginal or half-caste charged or suspected of any offence the punishment for which may involve loss of life or liberty except with the consent of the Chief Protector of Aborigines, and if any such admission or confession is obtained it shall not be received in evidence.”
Section 59A. of the Act provides that a native shall not plead guilty, shall not be allowed to plead guilty, can only plead guilty if the Protector does it for him, and is quite satisfied that he should plead guilty. In criminal court cases there is never a plea of guilty put in; it is always a plea of not guilty in order to give the native a chance. We find, however, that police officials extract confessions from natives and produce them in court as evidence. The two things are inconsistent. We bring a native to court and tell him we are going to give him a fair trial according to British law. In effect, he starts out as not guilty of the offence. Shortly after, the police trot out the confession. I invariably protest in court against such confessions being put in. The judge has remarked that the two things are not the same. The confessions have not always been accepted as evidence. Nevertheless, a man stands condemned in spite of the fact that he is not permitted to plead guilty. It is our duty to prove a man guilty, if he is guilty.
87. We are rather altering the law as it applies to others? — Some of the admission are definitely obtained by threats. A native does not understand what is required of him. He willingly says he is guilty, and tells the whole
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story with a certain amount of glee. In the case of a native murder, be may not see that he has done any wrong, and thinks he is a fine fellow. He thinks he is telling you something it was right for him to do from his point of view. He does not see why he should keep back the fact that he is guilty, and he spills it all out. The police go to him, and something of this kind occurs.
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The policeman says to the native, “you want to tell me all about the killing business”. He does that to extract an admission. The policeman, as he must do, also says, “Suppose you don’t want to tell me, all right.” The native does not see any harm in telling him and he replies, “I did it all right. Of course I did.” Then the native goes on to tell the policeman why he did it. I suggest that if a white man were to be spoken to by a policeman along those lines in such circumstances, he would naturally shut up like an oyster because he would know that he would have to stand his trial. A white man in those circumstances would not say a word unless there were certain circumstances that might compel him to do so. Natives should not be asked such questions by policemen.
It is our duty to show that the native committed the murder if he did so, and to prove the charge. Here is a case in point. A man named, we shall say, Barney, is arrested on a charge of murder. The policeman says to him, “What you want spear old fellow for?” The native answers the policeman giving the reason why he did it and explains how he did it. Of course he would do so because the native thought he was doing right according to tribal law. The contentions I have raised coincide with our idea that native courts should be established to deal with such cases. I consider the clauses proposed to be embodied in the new legislation are necessary for the protection of the natives in order to give them a fair unbiassed trial. I submit a copy of a minute I seat to my Minister last year dealing with matters I have been referring to including the establishment of native courts (Exhibit No. 23). In every dependency or country where there are natives and in some of the Australian States, special courts have been established to deal with native tribal cases. We propose that special oourts shall be established in Western Australia for a similar purpose. I was asked to give evidence on that subject before the Royal Commission on the Constitution of the Commonwealth in 1927. I did so and since then the matter has been taken up in different parts of Australia and I claim that I was the first to make that suggestion in the interstate of the aborigines.
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