State Records Office of Western Australia
Title: Transcript of evidence 1934
Item 1 & Item 2
Aborigines Royal Commission
Tuesday, 13th March, 1934
H. D. Moseley, Esq., Commissioner.
AUBUR [sic] OCTAVIUS NEVILLE, Chief Protector of Aborigines, further examined:
The late Mr. Justice Burnside remarked on one occasion with reference to a Criminal Court trial, “these tribunals are utterly unfitted for trying men who have the lowest form of human nature known, no moral intelligence comparable with our own and who are asked to abide by laws that they have no part in framing.” With reference to a case in which a native was tried for killing another native he said, “I do not propose to pass sentence of death on a native for doing what he has done almost from the commencement of the time he has been on earth and what he will continue to do during the time he is on earth.” In 1923, Mr. Justice Draper said, “The Government should bring in an Act to recognise tribal questions as a defence.” Time after time we find natives brought to justice for killing other natives. While we know perfectly well that the natives should not kill, and we point that out to them, according to their code some of the killings are perfectly justified. There is a case before the Court to-day, which a native killed another native for interfering with his wife, not once but many times. The native speared the offender, whether purposely I do not know. The fact remains that that case was brought before the Court here, as many similar cases have been brought, with witnesses available for the prosecution. There are no witnesses for the defence. The police go out and arrest the offender and bring him in together with what witnesses they require. Unfortunately the native who is in trouble has no witnesses on his behalf. Very often these cases come before the Court before we know anything about them. In the case that is now before the Court I received the depositions last week, which meant that there was no possibility whatever of obtaining any evidence for the defence, although the reason why the man was killed may have been quite right according to the native laws. That is a typical instance and there have been hundreds of similar cases. The State has spent thousands of pounds in bringing natives to justice for doing the very things that they consider it is their right to do. Very often the action taken by the native
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is intended to inflict mild punishment, but he may probably go too far and kill. Then again sometimes blood poisoning is set up and the victim dies a natural death as a result of a wound that would not have killed him in the ordinary course of events. We contend that the time has long since passed when special courts should have been set up for the trial of natives accused of such offences, so that all the circumstances surrounding the particular incident to be investigated can be taken into account. We do not propose for one moment to allow natives to go on killing each other; that is not the object. We propose that a new clause should be inserted in the Bill after Section 59b, reading as follows:—
“(a) (1) The Governor may by proclamation establish courts in any district to be specified in such proclamation for the trial of any offence committed by any aboriginal or half-caste against another aboriginal or half-caste; (2) Every such court shall be constituted by the resident or police magistrate who shall be chairman thereof, the Chief Protector of Aborigines or a protector who shall be nominated by the Chief Protector of Aborigines, some person to be nominated by the Minister, and the head man of the tribe to which the accused person belongs; (3) Every such court shall have exclusive jurisdiction in connection with the trial of any such offence and may in considering any charge made against any aboriginal or half-caste take into account any tribal custom which may be set up as the reason for the commission of the offence; (4) Where it appears that any aboriginal or half-caste has in pursuance of any tribal custom committed an offence against another, then the court may, in the case of a capital charge, sentence the offender to any term of imprisonment not less than ten years with hard labour. The proceedings in such court shall be final and without appeal; (5) The Governor may make regulations prescribing the procedure to be followed by such courts for the trial of such offenders.”
You will observe that under Subclause 1 of the proposed new clause no reference is made to offences against whites. Similar courts to those I have suggested have been set up nn New Guinea and Papua.
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88. Have you a copy of the New Guinea legislation dealing with native problems? — Not the whole of the legislation, but I have a copy of the provisions under which the native courts were constituted. I produce the departmental file 256/30 (Exhibit no. 24), relating to the establishment of native courts. The provision of such courts would not only save a lot of money but would enable the natives to have a hand in the administration of justice, which I consider very necessary. Half the time they do not understand what we are doing and why we do it. If we could do what I suggest in conjunction with one of the natives themselves, I think it would have an excellent effect amongst the aborigines and would enable them to appreciate what we were driving at, I feel sure that after a very few years the effect of the establishment of native courts would be the complete cessation of the vendetta system that prevails amongst the natives. The observance of the law of a life for a life has been going on ever since we have known the natives and it will continue until we do something more than we have so far done towards stopping it. We have to bring justice to the natives in their own way. Their own ideas of justice are pretty sound; if a man does wrong, they punish him. They may spear the offender in a certain way in a certain part of his body. Very often they go too far and that simply leads to another murder.
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They have punishments for almost anything a man may do wrong.
Another new clause is inserted to stand as 59D as follows:— “The Chief Protector may obtain letters of administration of the estate of any deceased aboriginal or half-caste.”
Hitherto the estates of deceased aborigines have had to be referred to the Curator of Intestate Estates. They have had to go through all the procedure and have been docked of the fees required by the State and the Curator. For many yours a lot of these estates were handled by the Chief Protector. Such an estate might consist of a few old clothes or a horse or an old buggy. Someone had to deal with them and it was my practice to refer them to the Curator and ask him if I could settle the matter. If he agreed, it was a simple procedure without legal obligation. Nowadays we have to refer all these estates to the Curator and have to go to endless trouble in settling some of them. The Govt knows the position, and some time ago ruled that the Chief Protector was to handle all these things in future. But the Curator, properly I suppose, pointed out it would be illegal for the Chief Protector to do that, and that while he had no objection he thought it was still his job as Curator. The upshot was that we had to revert to the original position and all such estates have to go to the Curator. We now seek to alter that by bringing it within the power of the Chief Protector to settle these matters. There is one vital reason for the change, namely that the Curator cannot recognise native marriages, and therefore, as to persons who may have been living together as man and wife for years, if the husband dies and leaves his estate to the wife she cannot receive it. The dept recognises these native marriages, and therefore would not act in that way.
Then there is another proposed new clause to stand as 59(e) as follows:—
(1) Any wages due to an aboriginal or half-caste absconding from service or deceased, and any wages due to an aboriginal or half-caste unclaimed for a period of one month after the same shall become due, and any estate or other moneys to which an aboriginal or half-caste is
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entitled either as beneficiary or otherwise shall forthwith be paid by the employer, trustee or debtor or other person liable to pay or deliver the same to the Chief Protector. Failure to do so shall be an offence against the Act.
(2). On receipt of such wages, estate or other moneys,the Chief Protector shall place the same to the credit of a trust account and for such purpose where any estate does not consist of money the Chief Protector shall, as soon as reasonably may be, convert the same into money.
(3). Subject to the provisions of this Act, the moneys placed to the credit of the said account as herein provided, may, after a period of three years be applied by the Chief Protector for the benefit of aborigines or half-castes.
That follows the lines of the Queensland system and enables the Chief Protector to deal entirely with estates and any money due to deceased natives, which I am afraid nowadays very often remains in the hands of the employers. My object is to ensure that any money which a native is possessed of at the time of his death, or which is unclaimed, shall go back to the natives themselves. Actually, we have started a system of this nature with certain trust funds which were too old to be dealt with in the ordinary way. We could not find the owners of the money and so we paid it all into a trust account and we use the interest on that money for the education of natives. We still have the principal and if those people turn up at any time they can get the money.
Section 60 of the principal Act deals with regulations. Paragraph (h) reads, “Regulate the payment of wages payable under agreement.” We want to add the words “with aborigines or half-castes or when employed under permit.” Then, after paragraph (k2), we wish to add paragraph (k3) as follows:— “For the establishment and regulation of mission stations and the issue of permits to mission workers.” Then we wish to add paragraph (m) aa follows:— “Prescribe the procedure to be followed in courts of native affairs”.
Section 62 of the existing Act deals with penalties for breaches of regulations. We propose to amend it by deleting the word “twenty”, in line 2, and inserting the word “fifty” in lieu thereof, and by deleting the word “one”, in line 3, and inserting in lieu thereof the word “six”; and by adding the words “or both” after “month” in the last line.
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