Page:Aboriginal welfare 1937.djvu/30

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(c) the diet of natives fully maintained on the mission;
(d) the measures to be taken to regulate the hygienic housing of natives; and
(e) the maintenance of the mission in a sanitary condition,
and that the mission he subject to regular inspection by an officer of the authority.

CONTROL OF MISSION ACTIVITIES BY GOVERNMENT.

Resolved—

That governmental oversight of mission natives is desirable.

To that end suitable regulations should be imposed covering matters as inspection, housing, hygiene, feeding, medical attention and hospitalization, and education and training of inmates, with which missions should be compelled to conform.

Conference adjourned at 9.45 p.m.


FRIDAY, 23 APRIL, 1937.

The Conference resumed at 9.30 a.m.; the Honorable H. S. Bailey in the chair.

COMPELLABILITY OF ABORIGINAL FEMALE WITNESSES.

Mr. CARRODUS.—The Commonwealth Government seeks from the Conference a definition of the wife of a native. This definition is required in order that an ordinance, passed by the Commonwealth for the purposes of extending to the wives of aborigines the same protection in law as is given to the wives of white men with regard to their non-compellabillty to give evidence against their husbands in court actions, shall have the desired effect. The Western Australian Government has inserted in its law on this subject a provision that the wife of the native shall not be a compellable witness, but in the Northern Territory we have had difficulty in defining exactly the term "wife" in relation to aborigines.

Mr. HARKNESS.—Do you mean "legal wife"?

Mr. CARRODUS.—Just "wife". It is desirable to have an approved definition because marriage customs vary according to tribal laws.

Mr. BAILEY.—There is no difference of opinion as to the desirability of the wives of aborigines not being compelled to give evidence against their husbands. All that in necessary is that there shall he satisfactory evidence that a woman is the wife of an aboriginal who may be charged with an offence.

Professor CLELAND.—Would the evidence of a native woman, who was compelled to give evidence against her husband, be of any real value in a court of justice?

Mr. CARRODUS.—In several cases in the Northern Territory the only material evidence available against an aboriginal has been that of the lubra with whom he was living at that time, and they have been decided upon that evidence. The Supreme Court of the Territory has always adopted the practise of taking her evidence. It does not regard a lubra living with an aboriginal as being his Wife.

Mr. BAILEY.—It is for the court to decide whether a woman is the wife of an accused person.

Mr. NEVILLE.—In Western Australia we have not called upon alleged wives of aboriginal prisoners to give evidence against them. We do not think it is fair to do so, because a lubra may be intimidated, merely by a glance from the prisoner, and we have come to the conclusion that such evidence as she may give is virtually useless. The law establishing the court which deals with crimes between natives contains a provision covering the point raised by Mr. Carrodus. In my State we regard the tribal wife of a native as being legally married to him. Even in the settlement of the estates of deceased aborigines the woman living with the deceased prior to his death is regarded as being legally married to him, and entitled to his estate. To decide who is or is not a native's wife is difficult. Often coloured men are found to be living with women with whom, in the strictly legal sense, they should not be living. In some tribes custom allows their members to have four or five wives. Our experience is that fear of punishment would prevent a woman from giving evidence against the man with whom she was living, whether or not she came within the legal definition of the term "wife".

Dr. COOK.—As Protector of Aborigines in the Northern Territory I consider that a native woman, in the matter of compellability to give evidence, should be accorded the same protection as is accorded to a white woman. She should not be forced to give evidence against her husband whether or not she is legally married to him. If a lubra were compelled to give evidence in such circumstances she would incur her husband's displeasure and their family life might be shattered. She might even be brutally assaulted, or killed. I suggest that the Conference pass a resolution defining the term "wife" as being any woman who, at the time of the alleged commission of the offence for which a prisoner is charged, is living with him, and can be regarded as being likely to continue to live with him subsequent to the decision of the court. If it appears that the normal association between the two individuals is likely to continue, the woman should be protected.

Mr. BLEAKLEY.—In Queensland the tribal wife of an aboriginal receives the same protection as is accorded to the wife of a white man.

Mr. CARRODUS.—But that covers only tribal wives. Many natives have wives who are not tribal wives.

Mr. BLEAKLEY.—Yes; I agree that a wider definition is needed.

Mr. NEVILLE.—Under some tribal laws even the unborn child of a woman is the tribal wife of a man sixty years of age. The infant child of another woman may also be his wife. I suggest a motion on these lines—

That any woman who stands in relations to a prisoner as his wife may not be a compellable witness.

Professor CLELAND.—Dr. Cook wants a more comprehensive definition than that.

Dr. COOK.—There may be a whole group standing in relation as the wife of an aboriginal; we desire to protect these living with him as wives.

Mr. BAILEY.—We all agree that a woman living with an aboriginal as his wife or his reputed wife should not be a compellable witness. I like D. Cook's broad definition.

Resolved

That in the opinion of this Conference any native woman who, at the time of the commission of the alleged offence, was living as the consort of the defendant and who may reasonably be expected to continue in that association during and subsequent to the legal proceedings, should have the protection of law accorded to a legal wife.

SPECIAL COURT FOR NATIVE OFFENCES.

Mr. CARRODUS.—Representations are frequently made to the Commonwealth Government that natives should not be tried in a white man's court, but in a special court for native cases only. That is all right when the case is one between natives. In Papua and New Guinea, native courts deal with offences as between native and native. The departmental opinion is that in cases in which white men are concerned, the trial should be in a white man's court, but that cases between natives be heard before a special court. So far, the Commonwealth has not established special courts for offences between natives in the Northern Territory.