Page:Aboriginal welfare 1937.djvu/31

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Mr. BLEAKLEY.—Two years ago, the Queensland Government decided against the establishment of a special court for natives. It, however, agreed that in cases in which natives were charged with offences—whether between natives or against whites—no aboriginal person shall be allowed to plead guilty unless, before such plea is made, the the Chief Protector certifies that the charge is understood by the accused, that he understands his rights of trial, and that the Chief Protector himself believes that a plea of guilty is reasonable in the circumstances. In nearly every instance the court has decided not to allow a native to plead guilty. Provision is also made for the proper legal defence of native prisoners and for a Protector to address the court on behalf of the prisoner. In Queensland we have provision for a native court, elected by the inmates, to deal with minor offences between natives on a reserve. Serious offences, too involved for a native court, are heard before a Protector or a visiting justice.

Mr. NEVILLE.—A special court for natives should deal only with offences between natives. Where white men are concerned, the trial should be in the ordinary courts of the State. Where a native is charged with an offence against a white person, the act of Western Australia provides that be may be represented by counsel, and have the protection of the Chief Protector. In my opinion, not only tribal offences, but all offences between natives, including charges of murder, should be heard before a native court, such court to consist of a special magistrate appointed by the Crown and a nominee of the Chief Protector. It should be given practically a free hand. Difficulty was experienced in obtaining convictions by juries of white men charged with assaulting natives. Invariably, the white man was acquitted, and consequently juries have been abolished in such cases. In Western Australia, all such cases are now heard by a magistrate; they are not dealt with by Justices. Tribal practice is accepted as evidence in a native court.

BLEAKLEY.—I agree that offences between natives, and whites should be heard in the ordinary courts of the land, so long as proper defence is provided for the native.

Mr. McLEAN.—We must provide for cases in which the Protector is a police officer and may also be the prosecutor.

Mr. NEVILLE.—In such cases a special protector should be appointed.


That the jurisdiction of the Court for Native Affairs shall be confined to cases in which both parties are natives.

That mixed cases—those in which a native is involved against a white man or a man of other race—be dealt with by the ordinary courts of the State or territory.

That natives be not allowed to plead guilty in any case, except with the approval of the Chief Protector.

That a native charged before a white man's court shall have adequate representation by counsel or a protector, or both.

That no confession or statement before trial shall be sought or obtained, or, if obtained, it shall be disregarded by the court. (See section 60(1.) of the Native Administration Act, 1905-1936 of Western Australia.)

That for the purpose of this resolution a native shall be a native as defined by this conference.


Mr. CARRODUS.—Previously, it was the custom in the Northern Territory to chain prisoners by the neck when being brought for trial, but a change of Government substituted handcuffs for chains. The police objected, on the ground that chains around the neck allow prisoners much greater freedom of movement and cause less discomfort than handcuffs. Recently, the Minister for the Interior (Mr. Paterson) witnessed a demonstration of the two methods, and was convinced that the chaining of prisoners around the neck is a much more humane practice than handcuffing. As the Commonwealth has been severely criticised for chaining natives, I should like to hear the opinion of delegates.

Mr. BLEAKLEY.—We have been criticized on this score also in Queensland. We have left the matter to the discretion of the Police Department. The safety of the escort depends upon the security of the means of restraint placed upon the prisoners. When natives have to travel long distances the rule is, wherever possible,to provide means of transport to obviate walking.

Professor CLELAND.—I think the Conference could safely go so far as to say that when the use of chains is necessary the neck chain is preferable to the handcuff for humane reasons, but all instances of the use of chains should be reported.

Mr. CARRODUS.—That would be done in the general way. The use of chains in confined to the remote areas from which prisoners have to be brought.

Mr. CHAPMAN.—Is the chain used on witnesses as well as prisoners who have to be brought long distances from the bush?

Dr. COOK.—Sometimes it has been.

Mr. NEVILLE.—This has been an issue in Western Australia for 50 years or more and it has been decided that the use of light neck chains is more humane than handcuffs when bringing prisoners from long distances in the bush. The practice is not adopted unless it is necessary, but when prisoners and even witnesses, have to be brought from the bush the use of light neck chains of 6 oz. a foot is adopted. There have been a few unfortunate instances, of course, but action has been taken against those responsible. We must take care of the safety of an officer who may have to go out 300 miles to bring in several natives. This matter was referred to in the report of the royal commission appointed in 1934 to investigate, report and advise upon matters in relation to the condition and treatment of aborigines. The Commissioner reported as follows:—

I had no opportunity of seeing natives "on the chain" other than the prisoners at Broome Gaol while working outside. I understand they were chained with the same class of chain as would be used in the case of natives under police escort in the bush, although the prisoners I saw were chained by the ankle and not by the neck. The practise has been described by one witness before the Commission as one causing the greatest misery and degradation. With all respect to that witness—a lady whose views show unmistakably her well-intentioned, but, I think, extravagant, ideas of what should be done for the native—I noticed no such effect. Indeed they seemed perfectly comfortable in their chains, they had every freedom of action, and apparently did not notice them. Other witnesses of great experience amongst natives—men of human ideas and expressing their honest conviction—have said that the practise is not only necessary but, properly carried out, inflicts no hardship on the native. The Reverend J. R. B. Love, the Superintendent of Kunmunya Mission at Port George IV, probably the most satisfactorily conducted mission I inspected, expressed the opinion that chains are infinitely preferable to handcuffs, and the practise is certainly not cruel. He thought a neck chain the most humane way of restraining native prisoners. This opinion was supported by Mr. A. W. Canning, who particularly advocated chaining by the neck rather than by the wrists, the later method preventing the native from defending himself from attack by insects.

Realizing the difficulties of a police escort, possibly consisting of one constable, properly taking charge of a number of wild natives in their own county, I do not see how chaining can be avoided. It would appear to be necessary, both from the point of view of the safety of the escorting constable and also in order to prevent escape. Chaining may possibly have taken place when not strictly necessary. That could hardly be avoided when the decision is left to an individual discretion.

Chains may be used where they are necessary. In the gaols an ankle chain is used, but when natives travel from the bush the neck chain is preferable. This is the testimony of all the people who have had anything to do in a direct way with the natives.

Mr. BAILEY.—Unfortunately the chaining is not always done in a humane way.