The Hon. Mr. Justice M.D. Kirby, C.M.G.
Mr. Justice Kirby is President of the Court of Appeal of the New South Wales' Supreme Court and former Chairman of the Australian Law Reform Commission. This is an extract from an article first published in the Adelaide Law Review, September 1980, in which Mr. Justice Kirby discusses the contribution of Professor T.G.H. Strehlow, the noted linguist and anthropologist, to the debate on whether the Australian legal system should recognise and enforce Aboriginal customary laws. The Australian Law Reform Commission has been asked to inquire into and report upon Aboriginal customary laws and is due to deliver its report in 1985. This article examines Strehlow's views on the incompatibilities between Aboriginal customary law and the Australian legal system.
When I first called on Professor Strehlow in April, 1977, he outlined to me the basic problems which he saw in any attempt to secure recognition for traditional Aboriginal law as he knew it and his fear that the moves towards recognition would lead to either a no-man's land, misused by a minority, or a synthetic legal system that was neither truly white nor Aboriginal.
He stressed the complete and mandatory secrecy of much of the traditional law and the fact that even when there was a highly developed traditional Aboriginal society, relatively few knew the law. Male children did not begin their instruction until the age of 15 or so, and only a select and dedicated few attained all the secret lore of their clans. Women were excluded from such knowledge:
"Our women are of no use at our ceremonial gatherings. They are altogether ignorant of the sacred tjurunga. They have fallen from the state of our great feminine ancestors". (1)
As the law's first tenets demanded preservation and respect of its secrecy, it was fundamentally unacceptable to disclose it, let alone codify it, for the purpose of its enforcement, whether by our courts or by Aboriginal communities.
Passing from the vital secrecy of the law, Strehlow said that at the heart of the substance of Aboriginal traditional law were two critical features of substantive law which the majority community in Australia would find it hard to accept, let alone enforce. The first of these was the central importance of religion in Aboriginal customary law. Because an offence against religion risked bringing supernatural wrath upon a whole clan, no notion of individual guilt or personal responsibility was relevant. " 'Clan vengeance' (meant) that an innocent man (might) be punished for an offence committed by a different member of the same clan." (2) Similarly the facts alone without any guilty intent or mens rea were sufficient to attract punishment, usually mortal punishment:
"Even minor damage to a tjurunga ('A sacred stone or wooden object representative of the individual's original body which he bore in his previous existence') resulted in death ... Lurknalurkna's slipped out of its bundle and broke in halves ... The youth was allowed to return to his father ... But though he was safe for a time, he could not escape indefinitely ... one morning, when he was alone, he looked up. Blood-avengers were standing around him. He was looking at the points of their spears. For his fault this mere youth was killed by the old men ... To us the death penalty may seem excessive for accidents of this sort. However, the natives regarded these stone tjurunga as the actual changed bodies of totemic ancestors: and damage of this nature therefore represented an injury done to their persons". (3)
The second critical rule which Strehlow suggested would not find ready acceptance in modern Australian society dealt with kin relationships. He likened one aspect of traditional law on this subject to an incest taboo (although he asserted that this was as unhappy an expression as many in this area). Strict rules governed inter-personal relationships within an extended family. Any such rules would appear to the modern Australian to be irrational, on the one hand, and discriminatory against women, on the other:
"Sexual relations were forbidden not merely with such near consangineous relatives as sister, mother, daughter and so forth, but also with any girl belonging to the class of the man's mother-in-law ... I (Strehlow) am not sure why relations with a woman who is by class regarded as a mother-in-law have been singled out with horror for moral condemnation, generally exceeding that vented upon offenders guilty of incest with actual blood relatives". (4)
The substance of the law apart, the procedures also presented difficulty. The notion of simply appointing traditional Aboriginals as police or justices ran, in Strehlow's view, into the impossible difficulties of kin relationships which forbid any measure of disloyalty, let alone oppression, to persons in particular relationships to the subject:
"It was always expected that members of a family should stand together and help one another. In the case of private disputes among persons belonging to two different families, the members of each family were always inclined to argue -- 'My family, right or wrong', and stand together even if the justice of their cause was rather doubtful". (5)
Finally, he mentioned the prevalent use in Aboriginal traditional law of punishments which Australian society today would regard as unacceptable. Are we, after a half-century of debate, to restore the death penalty so recently removed from the Australian statute book? Yet death was an acceptable (and in some cases compulsory) punishment for offences against traditional law. Are we to countenance spearing, clubbing and other physical violence which would constitute a serious offence against our legal system, simply because in Aboriginal society there was no prison nor any effective means of extracting a fine or other form of punishment?:
"In every human community there are persons who are regarded as rebels or as criminals -- persons who openly flout the dictates of the established authority or who wilfully break ... moral and social restrictions ... The generally accepted penalty [by the Aranda] for such incorrigible, habitual offenders was death." (6)
Unacceptable secrecy, unacceptable substantive rules, unacceptable procedural barriers, unacceptable punishments, a fear of the legal no-man's land and a caution against synthetic customary laws. This was the message which Strehlow brought to those whose responsibility it is to consider recognition of Aboriginal customary law in modern Australia:
"I believe that in 1978 no completely untouched Aboriginal communities exist anywhere in Australia. All Aboriginal Australians, even the furthest regions of the outback, have by now come into contact with European ideas, with white Australian cultural notions, and with white Australian legal notions. I believe that this is a process that can be neither arrested nor reversed; for even Aboriginals living in some form of tribal organisation wished to live on the white man's foods -- flour, tea, sugar and beef; and everywhere the young people, i.e. the future 'black' folk, are demanding also access to liquor. It seems therefore that in another 50 years or so there will be no Aboriginals at all whose beliefs, languages, or cultures have remained even relatively unaffected by 'white' ideas, concepts and values; and the original indigenous traditions in consequence are irretrievably on the way out ... I [am] left with the impression that few, if any, ... experts and spokesmen ha[ve] any deep knowledge of Aboriginal customary laws anywhere ... I know that the modern young Aboriginals and part-Aboriginals who have never been trained by any of the old local group elders in Central Australia are so inconversant with the old norms that they always use the term 'Aboriginal law' when talking about matters in which they feel 'black' behaviour differs (or ought to differ) from 'white' behaviour. Others talk about 'The Law'; but few of them seem to know much about the old terms in which breaches of 'The Law' used to be defined. These terms themselves would at least indicate what breaches of 'The Law' were regarded as meriting death, which breaches could be punished by the infliction of what we might term 'grievous bodily harm', and which breaches could be left to be dealt with by private persons (provided their 'punishments' were kept within certain limits). The loose use of 'The Law' or 'Aboriginal law' so freely indulged in nowadays by people who have only the haziest notion of what it is all about I find completely misleading and just as obnoxious as the universally promulgated term 'The Dreamtime' -- a completely misleading white man's term substituted originally for the Aranda word 'altjira' (which meant 'eternal' or 'uncreated' or -- used as a noun -- 'eternity'). Single legal definitions do demand clarity rather than prevarication, think that experts giving explanations before a legal commission should first be clear in their own minds what they are talking about. I note that ... you say 'The Law, no doubt, as in ancient Hebrew times, is religious Law'. This is true. But ... what happens when the old religion dies?" (7)
1. UNACCEPTABLE SECRECY
Despite a lifetime in scholarship, Strehlow was in many ways a practical man. He realised clearly that the Law Reform Commission must report to a Parliament comprising, almost exclusively, "white" representatives of a majority "white" population. He also realised that it was simply not feasible to present to the Parliament, for blind adoption, unstated, secret rules, the very existence of which could not be recounted to the Parliament. He also realised the practical fact that, the Australian legal system having asserted its dominance through the length and breadth of the continent, a revived recognition of Aboriginal customary law, in whatever form, would involve either a de jure of a de facto retreat by current Australian law from areas presently controlled (at least in legal theory) by it:
"Aboriginal law could be fully understood only by persons who had undergone years of training by the local group elders and in Central Australia (and probably elsewhere too), this was done mainly during the performances of the great ceremonial festivals. It was these highly-trained local group elders who knew all the sacred myths and sacred songs that were also the guardians of Aboriginal law since it rested on and was validated by the religious beliefs expressed in these myths and songs. For more than forty years I myself have listened to many hours of discussions by Central Australian local group elders about their norms, their territorial rights, the duties of ceremonial assistants, the powers of the ceremonial chiefs, the punishments prescribed for 'sacrilege' and for other offences: and I soon came to realise on how deep a knowledge of (and reverence for) religious beliefs the arguments were invariably based ... It would be improper for me, in Aboriginal eyes, to discuss ... such things as death charms, the operations of 'feather-boot men" or the ultra-secret practice of 'pointing the bone'. In all cases their magical efficacy was believed to come from secret verses left behind by certain greatly feared supernatural beings. These verses were known only to a few trusted men in the local groups. Many lesser men refused to learn them for fear of being accused of having played around with 'black magic' whenever any sudden deaths were reported either in their own community or in adjoining areas ... The younger generation of Aboriginals merely had a general idea of Aboriginal law: it was their fully-trained guardians of the sacred beliefs that were also the unquestioned guardians of their norms." (8)
The secret nature of the customary law had two practical results, so far as Strehlow was concerned. In the first place it could only be disclosed to an outsider who had won confidence over many years of proved trustfulness and then only on terms that it would not be divulged. It would never be revealed, particularly to women; but especially to a national audience which comprised women and those who might sneer and mock its tenets.
"[The old men] refused to part with the sacred traditions of their forefathers to men who scoffed at their beliefs and who desecrated their ceremonial centres." (9)
The second consequence was one to which he frequently returned in his writing. So secret was the body of the law that not even every adult, initiated male would get to know of it:
"[The old men] preferred to take the tjurunga of their ancestors with them into the grave rather than surrender them into unworthy hands." (10)
As only a limited number in the purest traditional state would know Aboriginal law in reality, "loose talk" of the recognition of Aboriginal customary law was unacceptable because those who purportedly revealed it were almost certainly not the traditional recipients of it:
"Th[e] vast body of tradition in myths and chants, together with the thousands of traditional ceremonies associated with the various ceremonial centres, has had to be preserved by a population whose numbers were estimated ... in 1896 as numbering only some 2000 Aranda persons ... If we exclude from this total all those persons who were not permitted to carry forward the sacred traditions, that is to say, all females and boys under the age of fifteen, we should still be left with perhaps a mere nine hundred potential culture bearers. Of these more than half, say five hundred, would have been young men still in the novice and early instructional stages: and of the remaining four hundred no more than perhaps half knew all the secret lore of their clans." (11)
The need to be clear in what we are talking about when we refer to "Aboriginal customary law" was a constant theme of Strehlow's later writing. To his mind, the equation was simple. Traditional law was part and parcel of traditional society. Break down that society and the limited number who at the best of times had access to traditional laws and such laws diminished or evaporated entirely:
"Even in the local group area a veil of deep secrecy effectively shrouded the most important parts of the sacred beliefs and ritual from the younger men. All episodes in the sacred myths, all verses in the sacred songs, and all acts in the ceremonial cycles attached to each major totemic centre, were carefully graded in point of sacredness and secrecy. Young men were allowed to be taught only those sections of belief and ritual that were open to the novices. Middle-aged men (called Kngari-bata) knew most of the sacred lore in the possession of .their own local group area. But there were probably never more than two or three elderly leaders to be found at any one time in one of the major local totemic groups who possessed that fullness of knowledge that enabled them to function as the final repositories of the complete body of sacred lore which was the property of their local group. In the Aranda-speaking area such men received the title Ingkata (ceremonial chief) -- a title that conferred on them also the privilege of meting out capital punishment on persons accused of sacrilege and of wielding in addition considerable secular powers ... In other words, they were also the main moral guardians in their community, and what we may perhaps call the respected enforcing officers of what has been termed 'tribal law'." (12)
Strehlow asks, by inference, if not directly, can we seriously propose the retreat of the general Australian legal system to permit the enforcement of secret laws, the very revelation of which cannot be permitted? He also asks, in view of the decline of truly traditional society and the diminution of the ever scarce numbers to whom the law was passed orally from generation to generation, are there any true Ingkata left? If not, what is this law called "tribal" or "traditional" which it is suggested the Australian legal system should countenance and support?
2. UNACCEPTABLE SUBSTANTIVE RULES: RELIGION
In Strehlow's view the critical central force in Aboriginal traditional law was religion. To him the problem of latter-day recognition of such law was twofold. First the evaporation in the belief in that religion and secondly, the plain unwillingness of the majority community to countenance the sanctioned enforcement of religious rules:
"All Aboriginal law was ultimately based on the religious beliefs; its rules varied in different parts of the Australian continent, since the beliefs too varied in different localities. In all cases of capital punishment, care was taken to convince the relatives of the victim that the execution had been, in a very real sense,, decreed by the supernatural beings venerated by the local group in whose area the killing had been carried out. For instance, men killed on a ceremonial ground were immediately buried and had then a sacred object such as a ceremonial pole erected over them or (according to Dr H. Basedow) ground painting set down over them. Broken tjurunga objects were shown as condemnatory evidence in other cases. Sometimes (probably very rarely) a man accused of 'sacrilege' was actually put before his judges and asked to justify himself again, against the accusation received by the elders. Sometimes he was believed. 'Then all the old men felt sorry for him: they perceived - "it is certain that he has not committed such a crime".' But if they did not, a death curse was pronounced and he was killed on the spot. If, as often happened, the accused had fled or resided at a place too distant from the 'court scene', a party of young men was sent out to execute the victim, who was sometimes unaware of the accusations secretly made against him; and the members of party then took him away from the main camp (perhaps on the excuse that he was to accompany them on a hunting excursion) and then killed him: this is what happened to a young Pitjantjatjara man ... near Mt. Conner, late in 1934." (13)
The law, being based on supernatural phenomena, was immutable and unchanging. Young children were drowned for thieving religious objects as a "grim warning" to children to keep away from sacred places. (14) Strangers who came upon religious objects or ceremonial performances, even if by a perfect accident, might be subject to mortal punishment for the offence, being against supernatural laws, threatened the whole clan with supernatural peril that had to be assuaged:
"[I]nstances of the fears in which all religious matters were wrapped up: doing anything wrong, even unwittingly, in the religious sphere constituted sacrilege and there was only one punishment for it -- death ... the supernatural beings had not merely existed in some shadowy 'Dreamtime' as is now being taught ... they had created the landscape, composed the sacred songs, instituted the sacred acts, and put part of their own immortal lives into all human beings. Any breaches of the links between these supernatural beings and the human beings consequently upset the whole balance of nature, and disturbed the economic environment to a degree that, if persisted in, would cause the deaths, of all animals, the perishing of all plants and hence ultimately the death of the whole human race ... It is therefore easy to understand why all Aboriginal law was ultimately based on religious beliefs, and why the death penalty was accepted almost with demur. Even on the most joyful occasion of his life, that on which a young Aranda man who had successfully passed all the terrifying physical operations and tortures of his 'man-making' rites, viz., circumcision, sub-incision, head biting, evulsion of fingernails, and so on, was at last being presented with his own Tjununga that symbolised his personal and indestructible link with the spirit world and immortal supernatural beings, he was still cautioned against sacrilege. Among the western Aranda the formula was, according to my old friend Rauwiraks (who was given more than one object himself) 'look at those tjununga! These are to be yours when we die. You must never place (on any new tjununga) the engravings of other places (i.e. the totemic patterns proper to the other sacred sites): if you put down the patterns of other sites, you will bring down on yourself the death penalty'." (15)
The notion of individual intention and personal moral culpability had no place in this system. The facts alone constituted the offence. Many instances are told, including by Strehlow in his Journey to Horseshoe Bend, of the application of the principle of punishment for "corporate guilt". The case there recounted (of the massacre of Irbmangkara in 1875) saw the killing of about 100 men, women and children for an alleged act of sacrilege of which most of those slain were personally quite innocent:
"It was this readiness to kill persons who had committed sacrilege either knowingly or unwittingly (the fact alone was looked at, not any mens rea) that caused a great revulsion against Aboriginal religion in Central Australia after the arrival of the white population." (16)
3. UNACCEPTABLE SUBSTANTIVE RULES: KIN RELATIONSHIPS
Contemplating the enforcement of such religious rules by such punishments, constituted an insurmountable object in Strehlow's mind to the revival of Aboriginal tribal law as he knew it. But it was not the only substantive objection. Severe punishments were also meted out according to traditional law for what have been loosely described as "incest" offences. The term is loose because it has a different meaning in the Aboriginal context from its meaning in our society:
"Most importantly (it is) intimately bound up with the classificatory kinship system. Thus an Aranda Kamara man could not marry or have sexual relations with any Kamara (or Nakamara or Watjala) woman anywhere: for such a female would have been classified as his sister. Again, the most heinous form of Aboriginal 'incest' would have been to have had any sexual relationship with a woman classifiable as his mother-in-law. Thus an Aranda Kamara man could not marry any Ngala (or Nangala or Ngangkala) woman. In the pre-white days he was not even allowed to speak to her. After white settlement this sometimes caused much inconvenience and sometimes embarrassing or even comic situations. Thus one of the kitchen women in my Jay Creek home thirty years ago was according to classificatory kinship terminology the 'mother-in-law' of both of my trackers, though neither of them was married to any of her daughters. At meal times she would noisily slam the kitchen door when taking out the food dishes to these two men, who sat some distance away with their backs turned towards the house so as not to see her. She placed these dishes on a table and then returned to the kitchen banging the door as noisily as before to let them know that she had gone inside. The men would now come to the table and eat their food. No words ever between her and these men. If she wanted any firewood cut, she told me; and I would then pass on her request to my trackers. There were various punishments for breaches of these 'incest' laws; but any affair with a mother-in-law would have cost both this woman and her lover their lives. In the early days of white settlement; some white employers in similar circumstances used violence in order to induce their black servants to talk to each other, and this led to much trouble." (17)
Several tales are told in his writing of the punishment singled out for breaches of the incest prohibition:
"Breaches of the incest prohibitions were punishable by death; and the council of elders appointed the persons who had to do the killing, since no kinsman of the guilty pair would have been willing to do so. If the man had married the girl rating, for instance, as his mother-in-law, then the pair sometimes fled to some distant njinana group in the hope that no one there would undertake the killing, and that their own local section would be content with having got rid of them permanently. In other words they hoped that their social extinction would make unnecessary their physical extinction. Even in such cases they were lucky if they survived for long. The avengers sometimes travelled long distances to carry out the sentence; and the local njinana section itself might do the killing. After the advent of the whites, persons who had contracted 'incestuous' unions generally sought employments with white station owners or police officers in order to insure immunity for themselves from the verdicts of their elders." (18)
Quite apart from the rigidities of the incest taboo many rules governing marriage were strictly enforced in traditional societies. Exogamy certainly existed among the Central Australian tribes and an accepted marriage pattern evolved, partly by reason of the small numbers of most clans and the limitations imposed by incest taboos:
"The choice of the individual in the determining of a permanent union was a factor of considerable importance among the Central Australian natives as it is among ourselves; and while the majority of them readily fell in with the marriage arrangements made for them by their elders, there were always a not inconsiderable number of men and women who preferred to choose their own partners. Sometimes the most desirable wife or husband belonged to a wrong class. Where incest was involved, particularly with blood relatives, society could not readily condone the offence; and in most cases the death penalty was inflicted upon the lovers, unless they managed to find asylum with some friends in other groups ... if no incest was involved, the relatives of the wrongly-coupled pair generally tried to separate them, often using much physical force in trying to convince the obstinate lovers of the error of their ways. Often the latter would try to avoid the wrath of their relatives by eloping to neighbouring groups for a while. Upon return they were sometimes accepted without further comment as a properly married couple, and sometimes they might have to put up with further physical chastisement. But if nothing served to bring them to their senses, the community would gradually cease to interfere and accept what had originally been termed an improper liaison as a permanent union, though continuing to refer to its being bailba when asked to express an opinion as to its legality." (19)
The difficulty of reconciling the strict enforcement of incest taboos and the oppressive enforcement of arranged marriages in an Australian society which is increasingly asserting and defending the rights of women needs only to be stated to be perceived. The law may turn a "blind eye" to that which it does not know. But is it to decline its assistance to a woman, Aboriginal or non-Aboriginal, in today's society in Australia who seeks protection from the enforcement of marriage arrangements which she does not wish? The clash between the competing forces, each of them in their own way desirable, is here seen starkly. That which would uphold the right of the Aboriginals to be themselves may clash with that which would uphold the right of women in our time to be free from forced marriages:
" ... [T]imes have altered; and with the example of their white sisters before them, native girls and women in Central Australia no longer submit passively ..." (20)
4. UNACCEPTABLE PUNISHMENTS
Enough has been said to disclose the fact that capital punishment played a critically important part in the enforcement of Aboriginal customary laws:
"[I]n a community which uses no money (not even sea shells could have been used as currency over most of Australia) and possesses no gaols, the only punishments available are corporal punishment and capital punishment." (21)
Even if this is somewhat over simplified (banishment and enforced solitude were among other alternatives), the point is fairly made that our regular and acceptable forms of punishment were simply not available in the circumstances of traditional Aboriginal life. For some offences against the whole community (particularly breaches of the religious or "incest" rules) death was the all but invariable consequence. For the rest, disputes between individuals were largely left to those individuals to redress:
"Fights were the acknowledged means of settling disputes not only between individuals but also between groups of individuals, as long as the settlement of the dispute did not involve the death of the offender. Even parties belonging to different tribal sub-groups or different tribes could arrange to determine the rights of their quarrels in this way." (22)
In Aranda Traditions Strehlow tells the tale of a retaliatory raid at Hermannsburg in 1914 and concludes thus:
"This episode strikingly illustrates native ideas on the punishment of murder. Murder, whether, intentional or not, must be avenged by murder; blood alone can atone for shed blood; if the real 'murderers' cannot be brought to justice, the craving for revenge is satisfied equally well by the killing of some of his relatives or friends. None of the three men attacked ... at Hermannsburg had been guilty of the original 'murder'; they merely happened to be the first men in the western Aranda camp who came within striking distance of the spears of the avengers." (23)
Strehlow is quick to defend the Aboriginal against the "primitivist" attitude of scientists. (24)
"It must not be thought that Aboriginal law was purely destructive ... it also furnished a firm basis for the healthy functioning of Aboriginal society. Again, it must be remembered that in these small Aboriginal local groups, life was not thought of as being cheap; it is the great 'civilised nations' that from time to time engage in disastrous wars where the lives of millions of men are held to be expendable by their own rulers and where young men of military age are sometimes rated as being little better than 'cannon fodder'. In the Aboriginal world, all men, and all women too, rated as full human beings, and each human being carried in it some of the immortal 'life' of the supernatural beings who were believed to have instituted the 'divine' laws which sometimes required these executions and other punishments." (25)
In his writing Strehlow asked directly or by inference whether a return to capital punishment, possibly fatal spearing, and clubbing to death, would be countenanced in Australia today. The terms of reference of the Law Reform Commission specifically remind the Commission that it should give special regard to the need to ensure "that no person should be subject to any treatment, conduct or punishment which is cruel or inhumane". Some Aboriginals, of course, assert that our form of punishment is "cruel or inhumane". Lengthy terms of imprisonment, on this view, are at least as "cruel and inhumane" as spearing and beating. Western law cannot turn its back because, increasingly, international conventions speak out against such punishments. The point made by Strehlow, however, is this. Such punishments are part and parcel of traditional Aboriginal law. Abolish them, remove the death sanction for sacrilege and spearing, fighting and beating for other offences, and you undermine traditional law itself. Calls for the return to "tribal law" originate in the desire to return to a cohesive, hierarchical society in which rules were carefully obeyed and severe sanctions were meted out to those who infringed. It is not so long since our society relied on terror and violent retribution as the means of controlling crime. A return to such sanctions, even as a result of the law's "turning a blind eye", would be unacceptable and contrary to international standards of conduct. Yet, unless the full vigour of Aboriginal punishments can be exerted, the power of the Aboriginal elders and council to enforce traditional law, as it was known, is completely undermined:
"The young men realised that where tradition provided the authority, the old men had the power to inflict any amount of pain upon them; also that their own male relatives, instead of helping them to escape from these ordeals, actually assisted the old men to carry out their painful decisions. To the fear of magic and the supernatural was now added the fear of the old men assembled in council." (26)
This states a quandary for the enforcement of some at least of the customary laws of the Australian Aboriginal. Unless traditional punishments are countenanced the probable area of traditional law susceptible to modern day enforcement is severely narrowed.
5. UNACCEPTABLE PROCEDURE
Many writers sympathetic to the notion of a revival of Aboriginal customary law suggest that Aboriginals today have a clear "jurisdictional concept" which, except in the remotest desert, concedes that some crimes are apt for discipline by white law, whilst reserving some matters to enforcement in the Aboriginal community. Again Strehlow points to the difficulties. As early as 1936, in his notes on native evidence, he drew attention to the special procedural problems arising out of the rules of kin relationship:
"The natives have no uncertainty about the nature of a lie. They know the difference between truth and untruth as well as a white man. They have a word for 'lie' (ortjerama is the Aranda term, for instance). If a lie achieves its purpose, it is not regarded as a serious offence, but as a permissible means to achieve a purpose easily or when other means fail; only the deceived person must be a mere acquaintance or a stranger or an enemy. On the other hand, it is regarded as shameful to deceive blood relatives or friends. It is regarded as shameful to tell a lie to one's father or grandfather or brother. (In some groups the grown-up native normally does not speak to his mother or grandmother unless compelled to do so.) It is regarded as shameful to tell a lie to the leader of the local totemic group to which the speaker belongs. It is sacrilege to tell a lie to the old men who are in charge of a great ceremonial gathering; even a young man withholding an animal which he has killed on the hunt during the day is guilty of sacrilege." (27)
The difficulties of a procedural kind created by the kin relationship simply cannot be glossed over. It would be unthinkable, at least in traditional Aboriginal society, for an Aboriginal policeman to arrest and detain a kin relation. It would be unthinkable for him to interrogate certain persons in kin relationship, particularly women. It would be impossible for him to give evidence against such persons. If he were a justice, it would be impossible for him to weigh independently and impartially the evidence against kin relations or even members of his clan. It would be quite unthinkable for him to condemn certain persons to punishment.
Additional problems abound. A recent criminal trial came to a complete halt when an Aboriginal witness was asked to name certain dead relatives. (28) Difficulties of this kind stand in the way of the public, curial application of traditional law. The need to face up to these difficulties and to avoid loose talk and loose thinking was constantly addressed by Strehlow both in his writing and in his conversations and advice.
6. BEWARE THE SYNTHETIC LAW
Some of the problems to which Strehlow drew attention have now been stated. Critics say that his notions of traditional Aboriginal Australia are suspended in the Aranda communities of the 1930s. For good or ill Aboriginal Australia has changed never so rapidly as in the last few years. Welfare, education, land rights and more lately, the establishment of an elected National Conference, (29) all of these create changes from the dependent, mission-led, self-deprecating community into which Strehlow was born and in which he grew up.
There is do doubt that some of his writings betray an impatience with the "so-called Aboriginal leaders". Those who most offended him were the noisy "mixed bloods", some of whom had "white spouses ... and cannot speak any Aboriginal languages". (30) Undoubtedly Strehlow found it hard to accept as legitimate the leadership of such persons and of their calls back to "customary law".
"I would ... agree ... that the problem of 'revivalism' should be carefully investigated, particularly when modern urban or rural Aboriginals suddenly discover Ancient Customary Law as assisting them to realise their own interests rather than having 'imbibed it in a traditional way'." (31)
But his principal concern here was one that is entirely legitimate and one which must be given full weight by the Law Reform Commission. He expressed a fear that, in the name of restoring so-called "customary law", we must be careful not to create a synthetic, loose kind of law which is neither Aboriginal nor Western, but depends upon the whim of those persons who are appointed to administer it. Such a development would be dangerous for the Rule of Law and of uncertain value to Aboriginals generally:
"I am concerned by the implications of some recent court cases and some of the theories being put forward by lightweight experts ... it is one of those situations where well-meant sympathy plus a little knowledge is very dangerous, and people are attempting to establish very important principles on this sort of shaky foundation. There is little real understanding today by either black or white people of traditional Aboriginal law. In some recent instances I suspect the courts and the community have had the wool pulled over their eyes. I don't suggest deliberate intent to mislead but rather an end result of general well-meaning effort based on wrong or unsound premises. In present circumstances one could already go so far as to suggest the best defence against a murder charge, if you happen to be Aboriginal with links to traditional life-style, is to claim the victim breached tribal law and that everyone was drunk at the time." (32)
This somewhat acid comment, clearly directed at the Sydney Williams case, does however contain a clear warning which was then spelt out in plain terms:
"Who today can speak with real authority on tribal law? Who can advise the courts of the validity of claims of beaches of tribal law? I have great reservations about the validity of claims in some recent murder hearings involving tribal Aboriginals that the killings had resulted from breaches of tribal law. I suspect that the quarrels that led to at least some were more likely to have been domestic-based and, sadly, aggravated by alcohol -- a not too uncommon situation in society at large. If this is the case then we are creating in our community scope for a small sector to get away with murder or to avoid punishment normally required under European law on the ground that tribal elders would extract retribution. These ill-considered theories could therefore lead to a legal no-man's land between white and black society in Australia. I do not believe that thinking white or Aboriginal people want this". (33)
Strehlow clearly recognised the problem before the descendants of the traditional Aboriginals:
"Despite the white man's welfare handouts, the old sense of security and intra-group human dignity appears to have been almost lost. The young people have become, it seems, virtually a lawless community, with all the horrors which that term implies. The old 'law' has largely lost its force, its remaining guardians can no longer control the younger generations; the new 'white man's law' has not taken any real root among the young people either. The remedy is, of course, a return to respect for the law. But how is this to be achieved? The old law rested on the old religious beliefs, and the young generation will no longer accept these ... Perhaps white Australians, too, are finding themselves in a not very dissimilar 'transitional stage'." (34)
In other words, a return to the law is a solution. It is even desirable. But in default of a return to the old religions, the old power structures, the unquestioned authority and rigid ceremonial, the endeavour to resuscitate customary laws in today's society will produce, with varying success, nothing more than a hybrid of uncertain content, ineffective enforcement and dubious respect.
Those who answer Strehlow say that he underestimated the viability of Aboriginal customary law and construed too narrowly the meaning of law. Why of all the legal systems of the world should this one stand still when the community changes? Such critics see Strehlow as a counsel of despair, as unacceptable for Aboriginal society as for the majority community in Australia. These are the issues that must now be resolved by the Law Reform Commission and passed upon, in the end by the Parliament of Australia. They raise fundamental questions about the nature of law, its rules of procedures and enforcement. In scrutinising these questions in the context of Aboriginal society and in seeking to find answers that will restore acceptable social control, we of the majority community may find answers, as Strehlow suggests, to our own legal problems. Strehlow, as has been shown, clearly saw the Aboriginal law was not just destructive, but provided a well organised system and a "firm basis for the healthy functioning" of Aboriginal society. Although he rightly called to the attention of the over-optimistic the severe, even harsh aspects of traditional law, he also suggested that, some cases apart, the usual and consistent solution to community problems was one of peaceful discussion and sensitive resolution.
On his 70th birthday, Strehlow wrote to me in sincere but happily whimsical terms thus:
"We in Australia are living in an agonising time of transition. It is therefore particularly difficult to make points now which will still be considered as completely valid in, say, twenty or fifty years time. I therefore do not envy you your task as Chairman of the Australian Law Reform Commission. But I sincerely wish you every success (and would I be correct in adding, good luck) in your endeavours."
Strehlow was a brave scholar'; not contented with cloistered virtues, he went out into the world and said what he believed. This is the prerogative and duty of the modern scholar. Australians, Aboriginal and non-Aboriginal, should remember his life's work with gratitude.
ENDNOTES
1. Strehlow, Aranda Traditions (N.Y., 1947), 94.
2. Strehlow, "Agencies of Social Control in Central Australian Aboriginal Societies", unpublished and undated mimeo MS, 51.
3. Id., 43.
4. Id., 40-41.
5. Id., 28.
6. Id., 38.
7. Letter from Strehlow to the author, 8 June, 1978, 1, 3.
8. Strehlow, "Aboriginal Law", mimeo note, August 1978, 3-4.
9. Strehlow, op. cit. (supra n.1), 172.
10. Ibid
11. Strehlow, op. cit. (supra n.2), 1-2.
12. Strehlow, "Aboriginal Religion", Strehlow Research Foundation Pamphlet No. , Vol. 1, June 1978, 1.
13. Strehlow, loc. cit. (supra n.8), 2-3.
14. Strehlow, "Aboriginal Customary Law", Strehlow Research Foundation Pamphlet No. 5, Vol. 1, August 1978, 1.
15. Ibid.
16. Ibid.
17. Id., 2.
18. Strehlow, loc. cit. (supra n.2), 41.
19. Strehlow, "Aranda Regular and Irregular Marriages" unpublished and undated mimeo MS, 35-36. Cf. Strehlow, loc. cit. (supra n.2), n.2), 19-20.
20. Id., 33. J -3
21. Strehlow, loc. cit. (supra n.8), 3.
22. Strehlow, loc. cit. (supra n.2), 33.
23. Strehlow, op. cit. (supra n.1), 64.
24. See e.g. id., xvi-xvii.
25. Strehlow, loc. cit. (supra n.8), 3.
26. Strehlow, loc. cit. (supra n.2), 28.
27. Strehlow, "Notes on Native Evidence and its Value" (1936) VI Oceania 331.
28. The reference is to recent proceedings before the Supreme Court of the Northern Territory.
29. The National Aboriginal Conference provides a forum in which Aboriginal views may be expressed at State and National levels, particularly on the goals and objectives in Aboriginal affairs. It commenced operations in 1977.
30. Strehlow, letter to the author, 8 June, 1978, 1. See also Strehlow, loc. cit. (supra n.8), 5.
31. Ibid.
32. As cited in the Adelaide Advertiser, 19 February, 1977.
33. Ibid.
34. Strehlow, loc. cit. (supra n.8), 5.
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APPENDIX 1: ABORIGINAL LAND IN AUSTRALIA
APPENDIX 2: ABORIGINAL LAND TENURE AND POPULATION
| Aboriginal Population June 1981 (a) | As % Total Population | Total Land Area (sq km) | Aboriginal Freehold (b) (sq km) | As % Total Land | Leasehold (c) (sq km) | As % Total Land | Reserve Mission (sq km) | As % Total Land | All Aboriginal Land (sq km) | As % Total Land | |
| N.S.W. and A.C.T. | 36,190 | 0.68 | 804,000 | 180 | 0.02 | 107 | 0.01 | - | - | 287 | 0.04 |
| VIC. | 6,057 | 0.16 | 227,600 | 19 | 0.01 | - | - | - | - | 19 | 0.01 |
| QLD. | 44,698 | 1.95 | 1,727,200 | 5 | 0.00 | 14,307 | 0.83 | 19,671 | 1.14 | 33,983 | 1.97 |
| S.A. | 9,825 | 0.76 | 984,000 | 184,738 | 18.77 | 505 | 0.05 | - | - | 185,243 | 18.83 |
| W.A. | 31,351 | 2.46 | 2,525,000 | 36 | 0.00 | 39,863 | 1.58 | 190,654 | 7.55 | 230,553 | 9.13 |
| TAS. | 2,688 | 0.64 | 67,800 | 1 | 0.00 | - | - | - | - | 1 | - |
| N.T. | 29,088 | 23.59 | 1,346,200 | 429,452 | 31.90 | 19,596 | 1.46 | 42 | 0.00 | 449,090 | 33.36 |
| AUST. | 159,897 | 1.10 | 7,681,800 | 614,431 | 8.00 | 74,378 | 0.97 | 210,367 | 2.74 | 899,176 | 11.71 |
(a) 1981 Census
(b) Or in the process of being granted freehold.
(c) Includes Pastoral, Special Purposes, and Local Shire Council leases.
Source: Department of Aboriginal Affairs, Annual Report 1983-84.
APPENDIX 3: EXPENDITURE ON ABORIGINAL PROGRAMMES*
Aboriginal Programmes: Department nf Aboriginal Affairs (1984/85)
| $ | |
| Housing | 15,772,000 |
| Health | 30,794,200 |
| Education | 15,591,200 |
| Employment | 26,971,000 |
| Social Support | 8,999,300 |
| Community Management & Services | 35,389,200 |
| Culture & Recreation | 4,240,700 |
| Legal Ald | 12,297,700 |
| Training | 5,720,700 |
| Consultations & Research | 11,873,000 |
| Aboriginal Devel. Commission | 66,078,0OO |
| Total | 233,727,000 |
Aboriginal Programmes: Other Commonwealth Departments & Authorities (1984/85)
| $ | |
| Dept. of Health | 5,438,000 |
| Dept. of Education | 55,090,000 |
| Dept. of Social Security | 837,000 |
| Dept. of Housing | 52,200,000 |
| Dept. of Employment & Industrial Relations | 62,183,000 |
| Dept. of Arts, Heritage & Environment | 2,412,000 |
| Total | 178,160,000 |
* Commonwealth Government allocation -- includes grants to State Governments.
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