Australian Institute of Criminology

Skip to content

The Kowanyama Justice Group : a study of the achievements and constraints on local justice administration in a remote Aboriginal Community

Australian Institute of Criminology, Paul Chantrill
11 September 1997 -

Dr Paul Chantrill - University of New England, New South Wales

Contents

Abstract

The Royal Commission into Aboriginal Deaths in Custody found that Aboriginal Australians were victims of entrenched racism and discrimination in the justice system. To redress this, the Royal Commission recommended that funding be available for developing innovative and community-based justice programs. This paper examines the operation of one scheme in the remote Aboriginal community of Kowanyama in far north Queensland which was made possible by a seeding grant provided by the Queensland Corrective Services Commission. The paper also considers the results of this initiative in the development of strategies for crime prevention, diversion from custody and local justice administration at Kowanyama and the potential for their application elsewhere now that support is available through the Queensland Government's Local Justice Initiatives Program. The success of the model requires a willingness from government to recognise and respect the capacity of Aboriginal communities to develop and manage their own distinctive approaches to local justice. It also requires concrete measures to empower the members of the justice group through strengthening their knowledge of and confidence in dealing with the mainstream justice processes.

Introduction

Since its establishment in 1994, the Kowanyama Community justice group has made a significant contribution to the effective management and limiting of law and social order problems besetting the community. The achievements at Kowanyama centre around increasing emphasis on community development strategies designed to improve opportunities for young people, the re-establishment of community authority and discipline based on the authority of local Elders as well as efforts to improve the community's relationship with local and external justice agencies - the police, children's services and juvenile justice, corrective services and visiting magistrates. Drawing on available police statistics, court records and community sources, it is apparent that there have been significant reductions in crime and recidivism attributable to the operation of the justice group at Kowanyama since 1994. A significant current issue for the Kowanyama is the challenge of sustaining the viability of the project in the longer term. One potential threat to the consolidation of local justice initiatives at Kowanyama and other remote Aboriginal communities in Queensland comes from the broader interaction between communities and government agencies, (including the police, magistrates and corrective service officials) and the extent to which such agencies may seek to regulate and limit the community-based processes required in the establishment and operation of justice groups in Aboriginal communities. Another challenge involves the empowerment of the individual members of the justice group to act as weighty protagonists in the criminal justice system. Greater knowledge and confidence in dealing with the criminal justice processes and participation in its formal processes are some of the areas for reform requiring closer attention.

Identifying the Problems: Over-representation and Systemic Bias in the Mainstream Criminal Justice System

On 25 November 1996, Michael Dodson, the Aboriginal and Torres Strait Islander Social Justice Commissioner, announced the release of an evaluation report of the progress of governments in implementing the 339 Recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC Monitoring Unit Annual Report 1995-1996). The report is scathing of governments in their failure to deliver adequately on these recommendations and notes that the number of deaths in custody continues to rise and that the only significant change is that the location of the deaths has shifted away from police watch houses and into correctional institutions (RCIADIC Monitoring Unit Annual Report, 1995 - 1996, pp. 13 & 15-22). The Royal Commission identified some basic problems with the criminal justice system that echo the principal themes in calls from Aboriginal and Torres Strait Islander communities for greater autonomy and local control. It is the rate of progress on this issue that is central to turning the tide and reducing the incidence of deaths in custody3.

One of the major long term goals identified by the Royal Commission was to allow each community to develop the means to resolve disputes and to deal with offenders in culturally appropriate ways. The RCIADIC also found that many Indigenous people were victims of entrenched racism and discrimination within mainstream criminal justice and legal institutions. This insight and the appalling statistics on the high level of over-representation of Aboriginal and Torres Strait Islander peoples within correctional institutions has prompted a questioning of correctional practices and policy approaches of government. For example, in Queensland in 1995, a report was commissioned by the Minister for Police and Correctional Services, on the results of the Report on Consultations with Far North Queensland Aboriginal and Torres Strait Islander Communities with Respect to Offender Management Strategies.

The report prepared by Gavan Palk, Ministerial Liaison Officer to the Queensland Minister for Police Corrective Services, showed that in 1995, Aboriginal and Torres Strait Islander people in Queensland were 14 times more likely to be incarcerated than others, and at the time, there were 584 Aboriginal and Torres Strait Islander people in custody (i.e., 24% of the total prison population came from a group that comprised just 2.3% of the total population of the State) (Palk 1995 pp. 3-5). In far north Queensland 780 new Aboriginal and Torres Strait Islander inmates arrived in correctional centres in the 12 months to February 19954. Most of these persons were transported from isolated and remote communities for mostly short term stays (Palk 1995 p. 10).

In relation to crime and social order problems at Kowanyama, the Palk findings indicate that at the time of the research conducted in 1995 the number of offenders on community-based orders was 26 and a total of 45 offenders had been incarcerated over the preceding twelve months and sixteen current offenders in northern correctional facilities Palk 1995, pp. 22-23). Palk's report, as well as unofficial police statistics, reveal that offences against persons have been particularly common, in part because of alcohol consumption but also because of ongoing family feuds and the operation of payback (Palk 1995, 23). The local figures at Kowanyama conform to state-wide trends in incarceration. The Queensland Government's (1994-5, p. 50) Budget Statement on Aboriginal and Torres Strait Islander Affairs indicates the most common offences for Aboriginal and Torres Strait Islander offenders as at April 1994. These are outlined in Table 1:

Table 1 Distribution of Offences for Indigenous Inmates in Queensland Correctional Centres
Offences of Violence 60%
Property Offences 27%
Motor Vehicle Offences 5%
Disorderly Contact 5%

The Queensland Corrective Services (1995, p. 8) Profile of Aboriginal and Torres Strait Islander Inmates at Townsville and Lotus Glen Custodial Correctional Centres (reproduced in Table 2) identifies the following categories and distribution of offences:

Table 2 Distribution of Offences by Category for Aboriginal and Non-Aboriginal Offenders in North Queensland Correctional Facilities, 1995.
 AboriginalNon-Aboriginal
Offences Against Persons 63.7% 44.5%
Robbery and Extortion 4.2% 10.4%
Property Offences 15.8% 19.5%
Offences Against Good Order 6.4% 3.8%
Drug Offences 0% 12.6%
Motor Vehicle 5.5% 5.2%
Other 1.3% class="dtR"1.6%
Unknown/Not Stated 3.2% 2.2%

The Queensland Corrective Services Commission (1995, p. 9) inmate profile also reveals that, on 7 October 1995, 311 of the 675 inmates were Aboriginal or Torres Strait Islanders (i.e. 46% of the total prison population at the two northern Queensland correctional centres (QCSC 1995, p. 1)). The Corrective Services inmate profile also indicates that 75% of Aboriginal and Torres Strait Islander inmates had committed prior offences. This confirms a high level of recidivism (QCSC 1995, p. 9).

The situation in relation to Aboriginal young people in juvenile detention centres is even more alarming. Figures compiled by Atkinson and Dagger for the Australian Institute of Criminology (1996, Series 73 to 75) on persons in juvenile corrective institutions across Australia reveal that Aboriginal and Torres Strait Islander children are more than 40 times likely to be institutionalised in juvenile detention centres in Queensland than are non-Aboriginal children. Table 5 in Series No. 75 in Atkinson and Dagger's study reveals that 61.8% of juveniles in Queensland correctional institutions for all ages as at 30 June 1996 were Aboriginal and Torres Strait Islander persons. The high levels of juvenile detention in Queensland are second only to the Northern Territory where Aboriginal children are a much higher proportion of the total juvenile population. The high levels of incarceration for Aboriginal and Torres Strait young people in Queensland confirms that viable responses to diversion from custody are becoming increasingly urgent. Local diversionary strategies for young people have been placed as a firm agenda item at the Kowanyama community but the community is struggling to find support and assistance from government in support of this objective.

High levels of incarceration also suggests a continuing high incidence of crime and recidivism and hence slow progress on the implementation of a number of important Recommendations of the Royal Commission into Aboriginal Deaths in Custody. The Queensland Government (1994-95, p. 50) Budget Statement on Aboriginal and Torres Strait Islander Affairs indicates that as of April 1994, of the 2301 Aboriginal and Islander people under the supervision of the Corrective Services Commission, 22% were in custody and 11% on community-based supervision orders. The remainder were subject to parole and early release programs. On a State-wide basis, this suggests that progress has been slow in implementing some of the recommendations of the Royal Commission (notably, Recommendation 92, regarding the use of imprisonment as means of last resort; Recommendation 104, on community input into appropriate sentencing; Recommendation 113, on community involvement in the development of non-custodial sentencing options and Recommendation 216 on appropriate funding and support for community alternative community-based initiatives). Inevitably, the Palk report and the Fourth Report of the Aboriginal and Torres Strait Islander Social Justice (1996) advocate a basic change in orientation. Many notable and important models and programs of reform are being developed and advocated by Indigenous communities themselves. The challenge that remains is convincing Governments to respond to and support the range of initiatives already out there.

Aboriginal Involvement in Local Justice in Queensland

When Aboriginal community leaders in Queensland were given the opportunity in 1991 to comment on all matters of legislation affecting Aboriginal people in Queensland, they called for greater autonomy and community self-management in administering justice and law5 (Queensland Legislative Review Committee, Final Report 1991, p. 8 & 33). Following the release of this report, there have been several initiatives in the local administration of justice and law and order in Aboriginal communities in Queensland. Notable examples include the establishment of the Aboriginal Law Council at Aurukun6 which regulates alcohol use within the Aurukun community, and an Aboriginal Elders network across Cape York Peninsula7, which is active in promoting culture and healing programs in north Queensland correctional institutions. In October 1995, a grant of $80 000 was made available to the Aboriginal Co-ordinating Council for a project directed by Eric Deeral to report on the positive role Elders could play in reducing the number of Aboriginal people in Queensland prisons and youth detention centres (Prosepine Guardian 5 October 1995, p. 44 and Tableland Advertiser 18 October 1995, p. 16).

Aboriginal community justice groups were established at Kowanyama and the Palm Island community in 1994 and at the Pormpuraaw community in 1995. These initiatives have all had the support of the Queensland Corrective Services Commission. Over the course of 1996-1997, several other communities including Hopevale, Yarrabah and Thursday Island in the Torres Strait have submitted funding applications to the Queensland Government to establish similar groups modelled largely on the Kowanyama and Palm Island models. The funding support for these proposals now comes under the ambit of the Office of Aboriginal and Torres Strait Islander Affairs' Local Justice Initiatives Program and several other applications for funding and support have been received from a diverse range of urban and regionally-based communities. It is timely to reflect on the achievements and impediments experienced at Kowanyama as a guide to the apparent acceleration in interest and demand for local justice initiatives in Aboriginal and Torres Strait Islander communities in Queensland.

At the present time, the Palm Island community off the coast from Townsville has been reported (Townsville Bulletin 14 August 1997, p. 1) as proposing the "traditionally oriented" punishment of banishing repeat juvenile offenders to other Aboriginal settlements. This follows the establishment of a Community Accountability Program which identifies repeat offenders in matters of vandalism and bullying who will be held to account for their actions by local community Elders Townsville Bulletin (14 August 1997, p.1). How these arrangements might be formalised and linked in with the juvenile justice system has not been worked out. On Thursday 4 September 1997, the Palm Island community launched the opening of an outstation facility to support its young people with discipline problems.

Discussions have also occurred about establishing at Kowanyama an outstation community correctional facility along the line of the Baa's yard facility operating at Pormpuraaw and the Wathanhin facility at Aurukun. In response to the Palk Report it was announced by the Acting North Region Corrective Services manager, Mr Norm Wilson in the Mt. Isa North West Star (29 May 1995) that such facilities might be the way of the future suggesting they were "culturally appropriate for Aboriginal offenders". It was suggested that occupants could work with cattle on these facilities and take part in programs to help them deal with alcohol and domestic violence. In my visit to the Pormpuraaw community in April 1995, I saw no evidence of any rehabilitative programs in place at Baa's Yard, only the spectre of significant overcrowding and a complete absence of any reasonable support facilities for health or recreation.8

Structural Limits: Sustaining Aboriginal Community Justice Initiatives

The concept of local or popular9 justice has been the subject of intensive discussion in the international context with strong contributions from Canadian scholarship with the concern to evaluate trials and innovative proposals amongst Canada's Indigenous communities (Finkel 1983 & 1985; LaPrairie 1996; Clairmont 1996; Crnkovich 1996) . Much of this scholarship delivers a cautionary note suggesting that the outcomes of schemes can be less than clear cut and so inviting more careful consideration of the potential constraints and pitfalls, as well as possible benefits, of popular or community-based justice schemes. A major preoccupation in recent theorising about popular justice has involved closer scrutiny of results and outcomes 10 (Abel 1982, p. 308; Crnkovich 1996; LaPrairie 1996; Clairmont 1996, p. 132 and Depew 1996). LaPrairie (1996, p. 4) cautions against popular justice being held up as a panacea of any more utility than that of the formal justice system. Empirical studies confirm that the consequences of applying ill-conceived and inappropriate models and practices of popular justice can be counter productive, if not disastrous11 (Crnkovich 1996, p. 170-174).

This scholarship recognises the potential for popular justice initiatives to fall to the risks of compromising pressures and unintended outcomes, particularly in the struggle to achieve local autonomy and effectiveness against continuing pressures toward incorporation into the formal justice system. Such considerations alert us to potential pressures that can bear on initiatives in Aboriginal communities, including those operating at the remote Aboriginal community of Kowanyama. The risks of incorporation or stagnancy are borne out in earlier Australian experience (Buchanan 1994, p. 17). A community justice model was introduced at Echo Island in Australia's Northern Territory in 1982 to facilitate local social control mechanisms and customary law. The scheme was never fully implemented in part due to government resistance and also because of a lack of community involvement. Two lessons are drawn from this experience: the lack of real commitment from government and the need for more complete involvement and consultation with local Aboriginal residents prior to project implementation (Buchanan 1994, p. 17). There is the potential for similar risks and pressures to bear on the current operation local justice initiatives in Queensland. In this regard, the Human Rights and Equality Opportunity Commission's (HREOC) (1997, p. 509) Bringing them Home has raised some direct criticisms of the Queensland Government's administration of the Local Justice Administration Program, which it perceives as prescribing unnecessary restrictions on the operation of these schemes in a way antithetical to the principles of self-determination12.

The 1993 Canadian Royal Commission on Aboriginal Peoples: Considerations on Reforming Justice Systems for Aboriginal Peoples

Parallel issues and concerns about the relationship between Indigenous peoples and the justice system have been raised and grappled with in Canada with its Royal Commission on Aboriginal Peoples 1993. Part of its deliberations and findings were informed by a Round Table forum, Aboriginal People's and the Justice System: Report of the National Round Table on Aboriginal Justice Issues, 25-27 November 1992. This forum brought together academics, practitioners, political leaders, and community leaders with knowledge and expertise in Aboriginal justice issues. In the assessment of the Round Table Rapporteur, there was a powerful consensus at the forum that Canadian justice was a failure for Aboriginal people attributable to the different worldviews and requirements of the justice systems from European and Aboriginal Canadians. (Macpherson 1993, p.4). The system was also judged as too legalistic, centralised, formal and far removed from Indigenous people, who in turn, believed they had their own internal mechanisms of social control. The admission of the Hon. Kim Campbell is instructive:

It has not been easy for me to accept that, for some, our laws are viewed as instruments of oppression, rather than as mechanisms for the preservation of justice . . . I have come to learn that the administration of justice, despite the good intentions of the people who work within it, has often failed to meet the needs of Aboriginal people who, all too frequently, come into contact with our courts as offenders, as victims and as communities. . . I have learned that Aboriginal people are too often alienated by, and from, the existing justice system, and that many feel powerless even to participate in determining what will happen to people from their communities who have found themselves in conflict with the law" (cited in Macpherson 1993, p. 6-7)

The dominant theme in recommendations that emerge from the Canadian Round Table discussions is the recognition of the need for a separate system (or more accurately local and plural systems) of justice administration for Indigenous people. As Webber relates:

For a very long time, Aboriginal people have criticised, with telling effect, the way in which they are treated at all stages of the criminal justice system. Many argue that the solution lies in a parallel system of justice (or more accurately given the diversity of Aboriginal peoples, parallel systems of justice) drawing on specifically Aboriginal traditions (Webber 1993, p. 133).

Accordingly, there is clear justification for the documentation and dissemination of information about current community initiatives and the establishment of processes for negotiating processes of reform with and between Aboriginal communities and government. The Round Table Rapporteur concludes:

... the process of reform must be a consensual one. It must come from conversations and negotiations between governments and Aboriginal peoples (Macpherson 1993, p. 12).

The same principles and wisdom can reasonably be said to apply to the circumstances and opportunities for reforms to the administration of justice for Indigenous people in Australia.

The ambivalent outcomes identified in prior case studies and critical reflection in the scholarship on Aboriginal popular justice initiatives in Canada, Australia and elsewhere alerts us to the central issue of identifying the impediments to and opportunities for successful local justice administration in remote Aboriginal communities that are often overlooked in general discussions of popular justice. Such considerations are raised by Depew (1996, p. 43-46) who urges us to take account of the distinctive and diverse circumstances in Aboriginal communities in Canada. Guided by this approach, aspects of local history, social structure, geography, demography and politics are critical considerations in accounting for the special challenges and opportunities for local justice administration at the remote Aboriginal community of Kowanyama. Community responses to local justice issues are likely to vary in their form and viability according to local circumstances and opportunities. This consideration underlines the need for closer examination of the needs and opportunities in identified communities. As LaPrairie (1992, p. 282) recognises13:

To date, there has been little attempt to separate the aboriginal political ambition of achieving control over aboriginal justice matters, on the one hand, and the needs of specific communities on the other. Frequently, these are taken to be so intimately related that solving the first is considered to solve the second automatically. In our opinion this requires further examination and, by reference to the original regional and community-specific data, sharper definition and clearer determination of issues.

The Opportunities for Local Justice Administration at Kowanyama

Kowanyama is an isolated community with few self-sustaining economic enterprises or bases of continuing contact with the main urban and regional centres in northern Australia. It is a community far removed from the pressure of late capitalism (c.f. Alber 1981, p. 310) and some of the social change pressures experienced by communities in other geographic locations (c.f. Depew 1996, p. 46). Kowanyama has a relatively homogenous Aboriginal population of some 1200 people comprising three tribal or family groups, namely, Kokoberra, Yir Yoront and Kunjen, that are connected traditionally to the lands in the immediate vicinity of the current township (Sinnamon, n.d., p. 3 & Bottoms 1992). Apart from tourism and some outside commercial fishing there is little continuing contact with European Australians, apart from government employed service providers such as teachers, health workers and the State police who are placed in the community for varying periods but often for only short-term placements. A number of longer term community residents are employed as administrators by the Kowanyama Community Council.

The Kowanyama Aboriginal community has established a reputation as progressive and innovative. Since 1987, the Kowanyama community has been administered by an Aboriginal Community Council on Deed of Grant in Trust Lands reserved for the benefit of Aboriginal community residents. The Community Services (Aborigines) Act 1984, provides for the operation of the Community Council and a framework for community government that enables Council to administer its own by-laws for the purposes of ensuring good government in accordance with local Aboriginal custom (Buchanan 1994, p. 17). The Council deals with a broad range of issues including community justice, land and natural resource management, Indigenous customary law issues, housing and other local government functions. In 1991 the community also established its Land and Natural Resource Management Office which operates to promote an active community role in resource use, planning and conservation on Kowanyama Aboriginal community lands14.

At Kowanyama, there are strong legacies of community initiative and distinctive aspects of social organisation, demography and geography that have influenced the development of the community's justice group. A high degree of remoteness and capacity for resourcefulness and local innovation are elements that have been conducive to the establishment and consolidation of the Kowanyama justice group. It is a locally conceived and developed body based on community views and priorities generated from carefully managed community consultation processes facilitated by Yalga-binbi Institute of Community Development workers. It is also notable that community Elders that participate in the justice group do so on a voluntary basis and receive no salary. The Elders also display a strong commitment to serving the Kowanyama community. Their roles are influenced by understandings of customary roles and practices adapted and applied by community Elders to suit contemporary community problems and needs. The community may seek to co-operate with these agencies to achieve its desired outcomes but would be most unlikely to accede to any role which saw it reduced to an instrument of formal State control. The strength of the Kowanyama justice group is its confidence in having developed a mode of operation that is locally-based and community driven. As such, the justice group can provide for more accountable and appropriate mechanisms and processes reflecting Depew's (1996, p. 28) emphasis on familiarity with local conditions and needs, consideration of responses to best suit local circumstances, including knowledge of locally available resources and understanding of how local arrangements can be given legitimacy and authority.

The establishment of the Kowanyama justice group in 1994 builds on the success of the operation of the Land and Natural Resource Management Office as a model of community self-management and initiative. In turn, the achievements in the subsequent operation of the justice group provides some basis to challenge some of the deterministic and pessimistic assumptions in the literature which suggest that popular justice and other community initiatives tend to falter through risk of incorporation. On the basis of the Kowanyama experience, I would like to suggest that popular or local justice options will not inevitably falter. The legacy of local autonomy and self-government at Kowanyama represent significant counters to the pressures of mainstream incorporation.

How The Kowanyama Justice Group Was Established

In 1993, the Queensland Corrective Services Commission made money available to the Kowanyama community to engage Yalga-binbi Institute for Community Development as consultants to explore opportunities for local justice administration in the community. The general principles guiding the consultation strategy were influenced by the Blackman - Clarke (1991) study of Aboriginal attitudes to Corrective Services practices in far north Queensland. Blackman and Clarke advocate the principles of community participation and local knowledge of law and justice issues in a preventative framework drawing on local Aboriginal conceptions of authority and behaviour control as a viable framework for local justice administration.

A lengthy and detailed consultation process was undertaken by Yalga-binbi consultants who were given a free hand by the Queensland Corrective Services Commission to deal directly with the community. Residents at Kowanyama were asked of their views about whether they wanted a local justice body, who might sit on such a body, who possessed appropriate authority, were fair minded and respected within the community. Community members were also asked to identify who were the senior people in the community who were considered representative of the major family - clan groups in Kowanyama to sit on a prospective justice group. Workshops were held to ensure that community members would be the decision makers so they would have the opportunity to determine whether and in what ways the community might want to take more responsibility and control of law and justice issues.

This carefully managed process established strong support for a justice group with its membership nominated (not self-appointed or elected) by representatives of each of the three family groups whose authority in the community was widely recognised. The establishment of the Kowanyama justice group in April 1993 reflected the consultation process with 18 members, 3 men and 3 women from each of the three family groups in the community nominated by the community on the basis of the recognition as leading authority figures within each of the groups.

Further community workshops were held to clarify the aims and objectives of the justice group. These have been formulated and modified over time. Maria Aiden and Evelyn Josiah, two leading figures on the justice group attended the Queensland Corrective Services Conference at Palm Cove Resort, Cairns 24-27 October 1995, where they expressed the aims of the Kowanyama justice group. These are to:

  1. help the Kowanyama community deal more effectively with its problems of social control
  2. Address the issues of law and order in a way that the community understands to be right and in accordance with its own customs, laws and understandings about justice
  3. Consult with magistrates about punishments and sanctions considered appropriate by Kowanyama people
  4. Recommend, and if appropriate carry out certain kinds of community punishments for offenders
  5. Take action to prevent law and order problems in the community
  6. Work closely with Council to put appropriate by-laws in place and help Council make Kowanyama a more peaceful place
  7. Hear social and justice complaints from the community
  8. Provide recommendations to government departments on justice matters
  9. Identify social and justice issues in the community
  10. Gain recognition from the government and judiciary for the role of the justice group
  11. Provide avenues for consultation with the community about justice issues by government and the judiciary
  12. Be fair, just and impartial when carrying out its roles
  13. Provide advice to the Children's Court and the Department of Family Services about juvenile justice matters
  14. Provide advice and assistance to the Kowanyama Community Development Officer (Justice) in setting up programs and supervising offenders

Responding To Local Problems And Issues: The Kowanyama Justice Group at Work

Background to Community Problems and Issues at Kowanyama

In discussions with local residents and Council officials, I established that for the many years the Kowanyama community was run as the Anglican Church Mitchell River Mission (1903-1967) as a peaceful and orderly community. The community was organised around three separate areas based on the three family - clan groupings from the local vicinity. Kowanyama did not experience the displacement and relocation of people across diverse areas of the State that occurred in many other areas in Queensland. During the mission years Kowanyama was a "dry" community, that is, it had no available outlet for the sale of alcohol. This changed when the government took over the administration of the reserve after 1967. The reserve community was destroyed by cyclone Dora in 1964: a new community was built of standard government housing with intermixing of family groups and government pressure resulted in the establishment of a community canteen for the sale of alcohol.

From 1967 to 1987, Kowanyama was administered as a government-controlled reserve. Alcohol was introduced and made readily available through the government run canteen and with this came the attendant problems of alcohol related violence and growing law and order problems. These problems have persisted into the post 1987 period of community self-government.

In the present period, Kowanyama police readily identify the community as a violent place, particularly on nights of excessive alcohol consumption on pay days. The National Aboriginal and Torres Strait Islander Survey (1994, p.60) bears this out in its survey of community perceptions about law and order problems revealing that 20.2% of respondents amongst Aboriginal communities in the Cooktown region (which includes Kowanyama) reported having been physically attacked or verbally threatened compared with the overall response from Aboriginal people across Queensland of 8.8%. As well, 27.7% of respondents in the Cooktown region reported being arrested in the preceding 5 years (National Aboriginal and Torres Strait Islander Survey 1994, p. 60). The 1994 National Aboriginal and Torres Strait Islander Survey of Queensland provides further detailed information indicating that 53.8% of male and 60% of females in remote Aboriginal communities considered family violence to be a problem in their community, as opposed to 13.6% of Aboriginal males and 35% of Aboriginal females surveyed in the State capital Brisbane. A profile of Aboriginal and Torres Strait Islander offenders in northern correctional facilities in Queensland undertaken as at 7 October 1995 indicated that 62% of offences committed by Aboriginal and Torres Strait Islander inmates were done under the influence of alcohol (compared to 37% for other inmates), some 16% were established to be not alcohol related and 22% either unknown or not stated (Queensland Corrective Services Commission 1995, p. 6).

The frequent incidence of alcohol and family related violence suggests that Kowanyama conforms to a pattern recognised by Depew (1996, p. 45-46) as characteristic of remote Indigenous communities in Canada. Local social conditions based on isolation and strong interaction between known members of the community connected via kinship and familiarity can contribute to particular kinds of tensions. Another factor relating to Kowanyama is the cyclical nature of crime related to residents being unable to escape the town boundaries in the wet season due to impassable roads. Community tensions and problems tend to swell during the wet which can last from November to April each year. These considerations can lead to a preponderance of certain kinds of problems relating to kinship and family tensions, interpersonal and domestic violence. Depew regards these as a social order problem rather than a crime problem:

Indeed, where incidents occur they are usually spontaneous or 'explosive', or situational rather than premeditated, and they are usually alcohol related and repetitive (Depew 1996, p. 45).

Depew observes that the social nature of the problem means that a legalistic response is often inappropriate. This is a reflection of the different social relationships that prevail in remote Aboriginal communities. It involves deadlines with individuals who are strangers, not in relations between family and kin:

Thus, it has only a minimal or narrow understanding, capacity and ability to respond in appropriate, relevant and legitimate ways to socially-based justice problems and needs of people who are closely interrelated and connected by long term relationships and interactions (Depew 1996, p. 46).

The relationship in the community Kowanyama between alcohol-related violence, social relationships and community isolation requires consideration of appropriate policing strategies and responses. These considerations have not prevailed in Kowanyama up until recent years15. Historically, community - police relationships could only be described as poor and the monthly pattern of fly- in magistrate sittings dealing with a long list of court appearances resulted in a parade of offenders being removed from the community to be incarcerated in Lotus Glen correctional centre located some 400 kilometres from the community. This predicament has been even more problematic based on the frequently offered proposition that jail is often not seen as a deterrent. It can provide access to living conditions and recreational opportunities of a higher standard than those available in the community. Going to jail has been related by residents and police to "a rite of passage syndrome" amongst some younger men in the community. Before the establishment of the justice group, community based deterrents and controls on law and order have not been operating. There is the perception expressed by local police and community members that traditional authority and control mechanisms in Kowanyama had been seriously undermined.

An inevitable outcome of mission and then government policy practice has been the progressive diminishing of social structure and local traditional authority. Elder authority and influence was significantly compromised. In turn, this has been exacerbated by the destructive effects of excessive alcohol consumption16. The State police service based at Kowanyama has identified a weekly pattern in criminal activity and targetted strategies to deal with high risk times relating to alcohol induced violence. This corresponds with the latter part of each week (Wednesday to Friday) which is the period of high use of alcohol in the community. The direct connection between violent crime and excessive alcohol consumption cannot be overstated. Liberalised trading hours which saw the extension of the opening hours of the canteen from 10.00 a.m. to 10.00 p.m. in 1996 was followed by a 51% increase in assault related offences (Kowanyama Police Statistics, 1996-97).

The alcohol issue is notoriously difficult to deal with in the community as it is widely used for recreational purposes and as an outlet for boredom, and provides a lucrative source of revenue to the Community Council which benefits from its sale. A community-wide response to the use of alcohol has not been broached by the justice group. However, cases of underage drinking, some isolated incidents of petrol sniffing and mothers abandoning their children to visit the canteen have been dealt with swiftly and effectively in the forum of the justice group. Blackman and Clarke's 1991 study of far north Queensland Aboriginal communities showed that as a consequence of alcohol use (treated under the heading of drug use) significant law and order problems remain widespread:

In all of the communities we visited we found there were major problems of social control. In each one there were extremely high rates of local imprisonment to aid in the control of behaviour associated with drug abuse. Indeed, people felt deeply the powerlessness of traditional norms in controlling, not only drug related behaviour, but that of their children. Every segment of the community . . . expressed their sense of powerlessness explicitly (Blackman and Clarke 1991, p.6).

The scenario depicted in Blackman and Clarke's empirical study can be usefully linked to Braithwaite's (1989) theoretical work on crime and reintegrative shaming. This has been done in a persuasive way in the Canadian context by LaPrairie (1992, p. 284). Our preceived understandings of the causes of Aboriginal crime are frequently linked to historical explanations of the experience of colonisation, dispossession and resulting marginalistion and poverty (c.f. RCIADIC, 1991). Braithwaite's approach alerts us to other potential factors based on the proposition that the way a society shames its members will influence the level of crime. LaPrairie has recognised the application of this insight to Aboriginal communities as the limits of shaming practices are linked to the breakdown of traditional authority structures. La Prairie (1992, p. 285) writes:

At the heart of Braithwaite's argument is the belief that sanctions imposed on offenders by those whose opinions are of more importance to him or her will have more effect than those imposed by a remote legal authority . . . By incorporating the belief that "conscience is a much more powerful weapon to control behaviour than punishment", Braithwaite explains why some individuals commit crimes and others do not . . .

Shifting Responsibility Back to the Community

According to the model suggested by Braithwaite, the propensity toward a high incidence of crime and disorder can be related to the breakdown of traditional authority structures and the consequential diminishing of sense of social responsibility and social connection in the community. LaPrairie (1992. p. 288) makes much of this connection in considering the on-reserve environment and changes occurring for many Aboriginal communities where there are problems of idleness, an increasing divide between young and old and an undermining of kinship relations. It establishes a clear reform agenda in creating better opportunities and a greater sense of belonging and interconnectedness within the community, particularly between the young and old as a matter of high priority. This emphasis is entirely consistent with the way the justice group at Kowanyama has perceived and responded in its endeavours to resolve community problems.

Despite disruption of customary practices through historical experience of contact with missions and reserve administration in Kowanyama there are strong claims that elder authority and local and culturally based practices can and are being used to make significant difference to local administration of law and order. These claims are reflected in a recent press release following the Customary Law Conference in Kowanyama 7-11 July 1997:

Kowanyama was selected for the conference due to the success of the justice group in utilising traditional methods, to dramatically reduce crime and offences being committed on the community during the previous three years.

The week long conference was extremely positive with most delegates accepting that there are two laws currently working in Aboriginal communities and the potential ways in which traditional laws can reduce crime and assist their communities, through the knowledge of the Elders and respect of laws and culture. (Kowanyama Community Council, Press Release, July 1997).

This release from the Community Council suggests that it is the knowledge of the Elders that is making all the difference. My investigations suggest that it may be more than this. Following from Depew (1996, p. 50) it is apparent that a lot of misleading dichotomies between traditional and western domains hold sway falling short of comprehending the contemporary reality of scope for change, competing lifestyles, values, factions and dissent within communities. Depew (1996, p. 50) adds:

These considerations place the development of popular justice, including its ideology, in a far more complex environment than is acknowledged by those who advocate a more straight forward approach to aboriginal world view and language as the foundation for aboriginal justice developments.

What is more significant is that the range of measures and strategies being applied at the community level at Kowanyama are focused on addressing or redressing the former predicament of a breakdown in community authority and the difficulty of making young people accountable to the wider community for their behaviour. During my visit to Kowanyama in February 1995, I found instances where the Elders in the community complained of how the situation came about where the young people no longer listened to the old people. New influences including the media, peer pressure, exposure to European laws and ways, and possible exposure to alcohol and drugs were significant factors contributing to the malaise (community meeting, February 1995). Similar findings were brought out in the Yalga-binbi review of the justice groups which cites justice group members expressing frustration that "white law is weak . . . it doesn't teach the young people to behave . . . they take no notice . . . show no respect (cited in Adams and Bimrose 1995, p. 33). Adams and Bimrose (1995, p. 33) relate that:

Members [of the justice group] are concerned about the lack of self-regulation practised by young people with regard to their own behaviour. In the words of one senior man at Kowanyama, "We want them to think for themselves and stay out of trouble". Justice group members speak of wanting to see their people acting responsibly, caring for themselves and their families, getting along well with others and spending their time in pursuits that are positive and meaningful to them.

Some of the responses of the justice group to community problems may be influenced by notions of traditional authority and wisdom, or attempts to re-establish its force whilst others may be something completely new derived on the basis of ingenuity and commonsense in responding to what is urgent and appropriate. The common attribute of the elements that are contributing to beneficial outcomes is that are community-based and involve local people in the administration of justice, planning community-wide responses and conform to community needs and priorities. At Kowanyama this involves a practical focus on the activities of the justice group, the relationships it is developing with other community bodies and government agencies and its role in assisting in the formulation of community development oriented strategies to improve community life in its broadest sense at Kowanyama. These strategies clearly conform to Braithwaite's understanding of "reintegrative shaming":

. . . the theory of reintegrative shaming implies shifting responsibility for monitoring illegality back into the community along with responsibility for dealing with that illegality by informal processes of social control and conscience building (Braithwaite 1989, p. 150).

The practice of the pilot justice group proposal established in Kowanyama in 1993 was guided by the simple, but plausible, assumption that social problems and unacceptable behaviour were not separable from community life, so that any preventative and rehabilitative response should come from the community17.

Drawing on the Blackman - Clarke (1991) study, the model proposed at Kowanyama draws on three key elements:

  • Community participation by providing local people with the opportunity for a say in the operation of community justice and justice issues;
  • The importance of promoting an understanding (amongst mainstream participants in the justice system) of the operation of the program from the point of view of community and justice group members; and
  • Promoting preventative action. This was to be a community approach that draws on the strength of local traditions, structures and patterns of authority to promote a greater sense of community ownership and responsibility for local justice issues and problems.

What the Kowanyama Justice Group Does

The range of activities performed by the Kowanyama justice group in the initial phases of the group's operation during 1994-5 were strongly oriented toward those functions related to community corrections. At this time, the support officer for the justice group was employed by Queensland Corrective Services as the Community Corrections Officer. Research conducted by Fickler (1983 & 1985) of Inuit communities and correctional issues in Canada highlights the potential for the application of Aboriginal and community-based approaches in correctional policy. Finkler's research (1983, p. 900 & 1982, pp. 321-324) identifies an alternative range of approaches including the recognition of special needs, opportunities to pursue traditionally oriented practices, innovative and culturally relevant practices and the use of citizens advisory boards. Community involvement in corrections provides the opportunity for the community itself to impress on offenders the boundaries of acceptable behaviour. Finkler (1985, p. 324) notes of Inuit communities:

Presently, the offender's removal precludes the opportunity for accountability to the community or his confrontation with self. Consequently, the involvement of leaders, Elders, and church people in counselling, through the traditional means of group confrontation, enables the community to emphasise to the offender that his actions are disrespectful of Inuit lifestyle and culture, and that he must learn to be accountable for his actions.

This emphasis on community involvement in corrections and alternatives to institutional sentencing is also evident in the strategies and approaches to community corrections being developed at Kowanyama. In part, this reflects the good relationship and direct support of the justice group provided by the Queensland Corrective Services Commission. Corrective Services provided the grant money to fund the community consultation process. The justice group is supported by the Queensland Corrective Services Commission who currently provide the funding for the position of the Community Development Officer (Justice) to the extent of $35 000 per annum. The vision and confidence displayed by the Queensland Corrective Services Commission in support of these arrangements deserves full recognition and support. Even so, the Commission expects a number of necessary functions to be undertaken by the justice group with the support of the Community Development Officer (Justice). These are discussed in turn.

Role of the Community Development Officer (Justice)

A Community Development Officer (Justice) is employed by the Community Council and has the job of facilitating the activities of the group, takes minutes at weekly meetings and acts to ensure instructions and direction of the Justice Group are carried out. Importantly, the person in this role, currently performed by Dellis Gledhill, is independent from the community in ways that are consistent, can be followed up and are in accordance with legislative requirements and constraints. In my discussions with John Adams of the Yalga-binbi Institute for Community Development the point was strongly put that the model upon which the justice group at Kowanyama was based established a critical role for this community support officer. For the justice group model to work effectively, Adams suggests that it is imperative that this person be skilled and knowledgeable of the legal system so that they can not only inform and guide the justice group in its actions, but also empower the justice group by making the members more aware of how the justice group works, how it treats the people from its communities, about alternatives and opportunities available to introduce new ways and in exploring ways to establish better relationships with justice agencies and institutions.

The critical importance of a level of distance between the support worker and the community is underlined by the possibility of recrimination and expectations of family loyalty from the person who is responsible for supervising and administering parole orders and acting on the recommendations of the justice group.

Supervising and Making Recommendations About Probation and Overseeing Community Service Orders

Greater confidence in alternative sentencing arrangements such as community service can be had by visiting magistrates and corrective services officials when there are appropriate supervisory and enforcement arrangements in place in the community18. The viability of alternative sentencing arrangements such as community service orders is strengthened due to the supervisory role played by the justice group. It is empowered by Corrective Services to monitor and deal with breaches of orders. This is one of the critical advantages of linking the functions of the Community Development Officer (Justice ) to that of community corrections officer. All such sentencing arrangements are brought to the attention of the justice group which has a formal role to play in ensuring that orders are adhered to. Breaches are monitored and referred back to Corrective Services via the Community Development Officer (Justice). It is now regular practice of the Queensland Corrective Services Commission to allow inmates from the Kowanyama community and the neighbouring Pormpuraaw community to enter an early release program based at an outstation Aboriginal correctional facility known as Baa's Yard located between Kowanyama and Pormpuraaw. It is now a matter of routine practice for Corrective Service officials to write to and await receipt of formal instructions and advice from the Kowanyama justice group about the timing, conditions and arrangements for release of inmates back into the Kowanyama community at the completion of their sentences or for other matters such as cultural leave to attend funerals. Those on parole who are allowed to re-enter the community are brought before the justice group who address the parolee and advise that person of the terms and conditions of their parole (usually relating to instructions to refrain from drinking alcohol for a prescribed period) and to remind the parolee of their broader responsibilities to the community. The authority of the justice group in these matters was brought home to me when I noted in the minutes of the meeting of 5 December 1995 advice to cancel the parole of an individual who failed to abstain from alcohol consumption after being allowed to re-enter the community.

Visiting Inmates at Correctional Institutions

Members of the Kowanyama justice group along with Elders from other communities across Cape York Peninsula formed an Elders Education and Spiritual Healing program. This network of Elders is the initiative of Eric Deeral, an Elder form the Hopevale community but now involves Elders from the Kowanyama community who undertake to visit Lotus Glen Correctional facility in Mareeba near Cairns to provide counselling, support and advice to Aboriginal inmates at the Correctional facility. The program has the full support of the Queensland Corrective Services Commission. This program is also serving to promote and reinforce the leadership role of Aboriginal community Elders.

Use of Outstation Correctional Facilities

Whilst custody in the large State correctional facilities may not always be appropriate, there is a widespread conviction expressed by justice group members and the State police that there remains a basic need to remove offenders, particularly serious ones from the community. Often, this may be in the best interests of offenders who may be subject to pay back and retaliatory action within the community. There is also the strong belief that jail does not serve as an adequate deterrent. The State police have related that many see it as a soft option 'a second home' that provides little capacity for deterrence. All of the players in the Kowanyama community as well as some senior representatives of government are convinced that community outstation correctional facilities are the best option for the future. Discussions in the community are already centred around this possibility and it has been a matter of considerable deliberation from the justice group since September 1995. There are many difficult issues to resolve before this option can be pursued seriously relating to funding, supervision, administration and so on but it does appear to be the critical emerging issue for the administration of law and order issues on remote Aboriginal communities.

The feature of the community-based measures is that they promote a stronger sense of community responsibility and ownership rather than leaving the problem to outside and distant impersonal government agencies. Another strength is that greater community responsibility can also promote more of an emphasis on rehabilitation, atonement and restitution to those aggrieved and result in more effective sanctions. It was often mentioned at Kowanyama that being taken away to the white prisons was not always seen as a significant deterrent to antisocial behaviour.

Links With the Judiciary and Aboriginal Magistrates Courts

Other broader functions and interests are recognised and sought by the justice group is in making recommendations for sentencing to visiting magistrates and for Protective Services and Juvenile Justice officers from the Queensland Government. This practice is now widespread at Palm Island Aboriginal community off the east coast of Queensland near Townsville. However, visiting magistrates who spend approximately one day per month in Court sessions at Kowanyama, have wide discretion in choosing to consult or not with local communities about sentencing. When the Justice Group was established the magistrates showed little interest in the views of the justice group. There remains the potential for the advisory role to be expanded as the visiting magistrates may choose to consult with the justice group about particular offenders. This remains the prerogative of the magistrate who is not subject to directives or influence in this regard from the Department of Justice and Attorney-General. The opportunity of being persuaded of the benefits of this practice is open with reference to the practice at Palm Island and in the Family Law Court (Commonwealth jurisdiction) which now requires judges to consult with authority figures in Aboriginal communities about appropriate recommendations of the court in relation to child custody arrangements19.

A recent move of the Kowanyama community is to work toward putting law and order by-laws in place and training Aboriginal Justices of the Peace to serve as a Magistrates Court20. The Queensland Government is currently providing Justice of the Peace training to residents in some remote locations in the State. Under new regulations, two trained Justices of the Peace can sit together to constitute a Magistrates Court. They are empowered to hear a range of offences and levy fines up to $2500 or impose up to six months imprisonment. It has also been suggested by the Queensland Attorney-General, Denver Beanland, that Aboriginal Justices of the Peace would be able to impose traditional forms of punishment and sentence people to community outstation facilities (Courier Mail 21 May 1997). Five current members of the Kowanyama justice group have received this training but have not yet exercised the role of Magistrates. Queensland Attorney-General and Justice Minister, The Hon. Denver Beanland, considered that this initiative, under trial at Kowanyama and Thursday Island was to establish better links between Aboriginal and Non-Aboriginal processes for administering justice. The Minister is cited in the Courier Mail 21 May 1997:

We want to improve the (justice) processes and part of that improvement is to try and see if we can benefit from some of the cultural processes the Aboriginal people use. We want to find out if they benefit more from having an Aboriginal person impose a penalty and if the process can affect offending behaviour in the first place.

Mr Neville Bonner, who is the Chair of the Queensland Indigenous Advisory Council has also called for a more formalised role for Aboriginal Elders and families in Children's Court processes and has written to several Ministers suggesting such processes be formalised (Courier Mail, 21 May 1997).

The President of the Children's Court in Queensland, Justice McGuire, has also emphasised the good sense of allowing greater involvement of Indigenous people in the judicial process. Following a visit to the Aurukun Aboriginal Community on 3 June 1994 for a sitting of the Children's Court, Justice McGuire (1994, pp. 157-8) expressed the view that:

the Aurukun people should have greater input and control over law-enforcement processes. It was thought that an Aboriginal Justice of the Peace should sit on Magistrates Courts to advise Magistrates. In my opinion, processes whereby families are brought closer to and have some real control over decisions made by the Courts are highly desirable. Without family participation, decisions made by Courts will have little, if any, benefit. Responsible and respected leaders of the community should be empowered to participate actively in the judicial process and, in particular should be afforded statutory recognition . . .

The logic expressed by Justice McGuire is axiomatic, yet there remains a discrepancy between the pace and commitment to the implementation of reforms in practice.

Conflict Resolution and Dispute Mediation

Another set of critical innovations pioneered by the Kowanyama justice group relate to preventative actions and mediation activities. These have evolved in response to changing community needs and expectations that matters of conflict and dispute can be dealt with effectively before they get out of hand. These include:

  • mediating disputes (domestic family and inter-family)
  • curbing antisocial behaviour through the issuing of sanctions and curfews and asking people to leave the community
  • responding to complaints and requests for assistance from the community;
  • responding to referrals from the police; and
  • night patrols of the canteen areas and public places

Re-establishing Elder Authority and Local Custom

The justice group draws its authority and influence in the community from various sources. For some on the justice group it is about drawing on traditional wisdom, for others it is about drawing on their links with Council (Larry Greenwool who is the current chair of the justice group is also the Chairperson of the Kowanyama Aboriginal Community Council). Others in turn draw the authority from being recognised leaders or spokespersons for one of the three family or tribal groupings in the Kowanyama community. The trend toward diminishing elder authority has been arrested following the establishment and operation of the justice group at Kowanyama.

The Elders of the Kowanyama community involved with the justice group I first met in (community meeting, February 1995), disavowed any interest with notions of a return to customary ways linked to violence and a cycle of pay-back. Local autonomy does not extend to extreme physical violence and eliciting actions that might provoke continuing family feuds. Alternatively, emphasis has also been placed on identifying appropriate family responsibility for dealing with problems. Crimes and problems should be dealt with within the appropriate family and clan structures rather than by disinterested or inappropriate third parties or external agencies and outsiders.

I learnt that quite specific and subtle forms of control were being instituted that accorded with local custom. These included: those of avoiding people or not making them welcome at particular homes, forbidding access to the community canteen, asking people to leave the community for varying periods of time. Promoting reconciliation by bringing problems out in the open and allowing a meeting and confrontation of adversaries was also used. Growling and shaming (public humiliation) were also used to promote socially acceptable behaviour. This has been operating particularly effectively in cases where parents and adults have been neglecting family responsibilities of caring for the young and aged. Mothers who have abandoned their children in order to go to the canteen to drink and socialise have been required to go before the justice group. The humiliation this involves for the mother is said to result in a the desired changes in behaviour. Similar incidents involving the introduction of petrol sniffing practices and the supply of alcohol to children have also been met with swift and effective responses from the justice group. In cases where losing face in the wider view of the community is involved, the prospect of intervention form the justice group and being made to appear before the justice group to account for actions and hear of its directives is proving to be a powerful deterrent. These campaigns aimed at protecting youth are seen as an especially important part of breaking the cycle of alcohol, violence and crime that have been all too prevalent in the community over recent years.

These initiatives can be recognised as linked to efforts to re-establish community authority and control and insisting on socially responsible behaviour. Family and elder responsibility are emphasised as means for promoting better behaviour and the community is recognising its own responsibility to ensure that young people are brought up in appropriate ways. There is now greater conformity with the scenario of reintegrative shaming identified by Braithwaite (1989, p.55):

. . . the nub of deterrence is not the severity of the sanction but its social embeddedness: shame is more deterring when it is administered by persons who continue to be of importance to us.

A Focus on Young People

Young people are a central focus in the deliberations and interventions of the Kowanyama Justice Group. An important aspect of exerting elder authority and influence in the Kowanyama community is based on the genuine commitment of the justice group members to care for and provide leadership for the young people. This appears to be strongly motivated by a desire to reverse the consequences of the breakdown of elder and community authority which has been pervasively felt in the area of juvenile crime. Just prior to the establishment of the justice group Kowanyama police records indicate juvenile crime was extremely high with offences being in the vicinity of 40-50 in every month ( Bimrose & Adams 1995, p. 41). The major offences committed by young people were break and enter and shoplifting. School truancy and under age drinking have also been issues at Kowanyama. Accordingly, the justice group has introduced a range of measures focusing on young people. It is the area which the justice group is achieving the most important outcomes. Elders are gaining the respect from the new generation of young people who are being brought to account for the actions in a forum of community scrutiny, accountability and retribution. There has been an astonishing reduction in juvenile crime in Kowanyama, perhaps as few as ten juvenile offenders requiring police attention over a two to three-year period. So, what is the justice group doing to make such a difference? The focus on young people has included a range of initiatives. These are detailed below.

In conjunction with a police recruit to the Kowanyama community in 1993, who has displayed a strong personal commitment to effective policing and good community relations, the justice group introduced the kids and cops program. This involved recruiting the young people in the community of between the ages of 8 to 14 as honorary local police to assist the police constable in evening patrols to ensure the community was safe and secure. Young people donned the blue shirts with official police emblems and volunteered their time to work with the constable to make the community a safer place by checking that public buildings were locked and unsupervised children had something to do. Reward programs were also introduced with holiday excursions to out of the way places organised as rewards for good behaviour. I have rarely seen or known of such examples of community and police co-operation establishing good relations with the residents contributing to such dramatic reductions in the levels of juvenile crime. Constable Hiscox explained to me (Interview February 1995) that many of the younger ones actively involved in the program were the people that were earlier offending in the community. He related that it was more a matter of giving them responsibility and incentives.

At Kowanyama, justice, crime prevention and community development have become inseparable concerns. The emphasis on young people has prevailed at Kowanyama with the justice group working closely with the Community Council to provide for activities and support through the establishment of sport and recreation activities, developing community infrastructure - swimming pools, sporting field, additional football stadiums, cricket pitch, reward camps and purchase of a community bus for outside excursions. A major achievement in 1996 was a community campaign to sponsor the Kowanyama Taipans touch football team which competed and won an international football tournament held in Fiji (Kowanyama Community News, Autumn 1996, pp. 1&3).

The Fourth Report of the Aboriginal and Torres Strait Islander Social Justice Commissioner (1996, p. 56) also details elements of the Elders working directly with young people at Kowanyama employing techniques of active counselling and early intervention and requiring young people to make amends for their acts and deeds. The attitude of responsibility taken by the justice group to young people is reflected in the words of Kowanyama Elder, Banjo Patterson, Chair of the Kowanyama justice group from 1994 to 1996:

Make sure you look after them, take good care of them. That's what you're there for, to take good care of them, rear them up the proper way, not just running them loose. When they get of hand, they're gone forever. You might never catch up on them again. Look after your child properly, the way you want to see them and the way we want to see them too (cited in Aboriginal and Torres Strait Islander Social Justice Commissioner, Fourth Report, 1996, p. 56).

Involving all of the Community to Improve Things for Young People

The justice group has also linked in with other community bodies and protagonists to improve the prospects for young people. As particular issues of concern emerge, the justice group has initiated community wide meetings and urged community wide responses. One example was the calling of a community meeting to deal with the problem of school attendance involving the school community, the police, Kowanyama Council, the police and the justice group. This was in response to a request for assistance from the school principal on 4 September 1996. The meeting resolved to undertake a number of actions to deal with the problem of poor attendance at school and was followed by an active campaign to ensure young people left and arrived for school each day. Resolutions recorded in the justice group minutes were:

  • to fine parents $50 if they failed to get their children to school
  • the prohibition of sales in the general store to children in school hours;
  • involving the justice group in herding children back to school.

The justice group undertook to monitor attendance and assist school liaison officers in making sure young people arrive and stay at school and negotiations with the manager of the community store were undertaken to ensure refusal of service to young people during school hours.

Another school-based initiative dating from 23 October 1995 was the "adopt an elder initiative" (Kowanyama Justice Group Minutes). This measure has been implemented to involve Elders from the community in classes at the Kowanyama school. The Elders provide direction and support to the school as well as participate in teaching about matters relating to culture and appropriate behaviour. The school community has in turn responded to the justice group's initiative and on 8 March 1996 received an invitation for a permanent representative to sit on the Kowanyama School Education Committee.

Police and Justice Group Relations

In October 1995, in the interests of encouraging better relations with the police, the justice group resolved to invite the State police officers to attend the general business sections of weekly meetings (Kowanyama Justice Group Minutes). This was an initiative aimed at facilitating closer collaboration and information exchange between the two bodies. This coincides with the arrival of a new police Sergeant to the community with a strong background in dealing with Aboriginal communities having being previously placed at Coen. Following the establishment of a closer working relationship with the police, matters of a minor nature have been referred by the police back to the justice group for action and resolution.

Policing practice in remote Aboriginal communities in Queensland is now guided by specific strategies and policy guidelines (Budget Statement: Aboriginal and Torres Strait Islander Affairs, 1995-96, pp. 299-300). In a population which consists primarily of Indigenous people, including Kowanyama, the guidelines provide for the provision of appropriate policing services informed by strategies of working closely with the communities to address community problems and establish crime prevention protocols and specific training of police personnel to prepare them for service in remote areas. This extends the earlier established practice of employing local Aboriginal residents as community police. The State police service has recently appointed an Aboriginal police officer to Kowanyama. The performance indicator for this remote area policing strategy are based on enhancing community safety, improving police-community communication and increasing the number of non-arrest/non-custodial interactions between community residents and the police (Budget Statement: Aboriginal and Torres Strait Islander Affairs, 1995-96, pp. 299-300).

As a consequence, more appropriate and better informed policing strategies are now being implemented at Kowanyama, reflecting a greater preparedness to work with the community, asking people for ideas about how problems should be sorted out and helping people to save face by dealing with matters in a confidential and culturally sensitive way. Proactive policing campaigns have also been introduced aimed at curbing alcohol related public disorder. This includes increasing foot patrols and entering the canteen area. Police are also applying planned objectives and strategies aimed at managing and reducing fear and threat of personal violence. This includes targeting high risk times corresponding with high use times of the canteen and participating in public meetings involving the Council and the justice group aimed at dealing with alcohol related violence.

Relations with other Government Agencies

There is a great deal of pride and conviction about the autonomy and credibility of the Kowanyama justice group stemming from its self-reliant experience in establishment, development and expansion of its functions and roles. I noted with considerable irony in 1996 a letter sent to the community from the Queensland Government inviting applications for funding assistance to establish a justice group in Kowanyama when such a group was already existing since April 1993. The point is that apart from seeding moneys for consultants support in planning for the justice group, the Kowanyama community has made its own way in establishing this innovative and successful program.

Members of the Kowanyama justice group are indeed wary of too close government involvement. There is a perception that close government scrutiny, particularly from welfare oriented departments might lead to curtailment of local custom and practices that may be realising beneficial outcomes. The justice group is particularly sensitive to close scrutiny of child welfare agencies who may not support the measures and practices the justice group feels appropriate in managing the behaviour of young people.

Evaluating the Operation of Justice Groups

Acknowledgement of the successes and contribution of the Kowanyama justice group has occurred with receipt in 1995 of the Australian Violence Prevention Award made by the Australian Heads of Government who issued the justice group a Certificate of Merit for its work. The efforts of the Kowanyama justice group is also acknowledged in a special radio broadcast program produced by the Office of the Commissioner for Aboriginal and Torres Strait Islander Social Justice on the subject of Aboriginal Community Justice and Mediation. Program II in the series: Bringing Them Up the Proper Way: Aboriginal Justice and Kids, makes special reference to the justice group model at Kowanyama.

There have been across the board impacts on law and order and justice issues in the Kowanyama community as a result of the activities of the justice group. These are reflected in the crime rates, especially in the dramatic decline in Juvenile offences in the community since the establishment of the justice group in March 1994. These are summarised in the table below.

Table 3 Decline in Juvenile Offences at Kowanyama, 1994-1997.
DateNo. of offences per month
Pre-March 1994 40 - 50
March-november 1994 NIL
December 1994 - March 1995 2
March 1995 - December 1996 N/A
January 1997 - July 1997 3

Source: The figures for 1993-1994 are based on the Review of the Kowanyama Justice Group conducted by Yalga-binbi in 1995 (Bimrose and Adams 1995, p. 41). I have accessed the data for 1996-1997 on the same basis as Yalga-binbi by accessing local records and charge sheets from the Kowanyama police service. I am grateful to the level of co-operation shown to me by the Kowanyama police service in accessing this data.

The Kowanyama police statistics reveal other significant decreases in adult crime levels (Adams and Bimrose 1995, pp. 37 & 40). For example, for the period 1 October 1993 to 1 October 1994 there was an 82% decrease in break and enter charges or 207 charges down to 37, a 91% decrease in stealing, a 68% decrease in assault and an 83% decrease in domestic violence applications.

Police officers at Kowanyama suggest that 1995 was a period of dramatic improvement with more modest changes occurring in the period up to July 1997. Improvements are apparent in the period 1996-97. The police report general downward trends in the areas of firearms, break and enters and theft. Other areas are less clear cut. In first six months of 1996 trends in police charges featured 7% decrease in property offences, 50% decrease in stealing and 25% decrease in Break and Enter offences. Break and Enter offences involving the general store declined dramatically (100%), reflecting the implementation of the policy of barring of children in school hours. However, Wilful damage offences increased by 67% and cases of assault by 51%. The wide incidence of public disorder incidents are explained with reference to the extension of canteen hours. During 1996 there is a noticeable increase in the number of offences of violence against persons. These have been linked by the Kowanyama police to the advent of extended trading hours confirming that alcohol related violence remains the single biggest continuing law and order problem in the community. There has also been a marked increase in traffic offences, a 44% increase in drink driving and 108% in all traffic offences. This increase reflects a local police campaign to target drink driving offences. In the second half of 1996, reports and cases of assault fell by 24%. Dramatic change occurred in the area of property offences in 1996-97 with an overall reduction of 40% in the number of offences, a 36% decline in Break and Enter charges, 58% decline in cases of wilful damage and 80% decline in sexual assault and rape (Kowanyama Police Statistics).

A consideration noted by the police is that the decline in property offences is largely attributable to the incarceration of repeat offenders. The outcomes at Kowanyama need to be tempered in realisation that a range of circumstances can affect the cyclical nature of crime in the community. The incidence of crime can be affected by the onset of the rainy season when reduced opportunities for recreation outlets and escape from the community are limited because of unpassable roads. This suggests that the pattern of crime is cyclical and not necessarily solely attributable to the operation of the justice group. Its activities do not at this time cut across police responsibilities for major offences. The police may choose to refer matters to the justice group but it does not see that it has a role to play in matters of a serious criminal nature. The following table groups some of the major categories of offences to establish longer range trends following the establishment of the justice group. There are dramatic improvements in offences against property and noticeably less dramatic improvements in the area of offences against the person.

Table 4 Records of Offences by Category Before and After the Establishment of the Justice Group
Offence1/1/93-1/10/931/1/94-1/10/941/1/96-30/6/961/7/96-31/12/9
Break & Enter 207 37 15 10
Stealing 123 11 20 12
Property Offences 179 2 NA NA
Offences Against Person * 47 31 42 33
Rape 1 3 6 2
Domestic Violence Applications 6 11 NA NA

Notes * Offences against person is taken to include assault, unlawful wounding and grievous bodily harm.
There is no record of any cases of murder in the periods included.

Sources: The figures for 1993-1994 are based on the Review of the Kowanyama Justice Group conducted by Yalga-binbi in 1995 (Bimrose and Adams 1995, p. 40). I have accessed the data for 1996-1997 on the same basis as Yalga-binbi by accessing local records and charge sheets from the Kowanyama police service. I am grateful for the level of co-operation shown to me by the Kowanyama police service in accessing this data.

The Limits on the Sustainability of Local Justice Administration at Kowanyama

Broader theoretical and empirical studies on the ambiguities of local (popular) justice sensitise us to the need for greater realism in our assessment of its limits and possibilities. These insights can be usefully applied in seeking a balanced assessment of the outcomes realised at Kowanyama. It is apparent that Kowanyama in 1997, is a safer and more secure community than it was in 1993. The incidence of crime is lower and the capacity for the community to resolve matters before they become greater problems has been well established. However, a complete reversal of fortune in Kowanyama has not eventuated. The high incidence of personal assaults and alcohol related violence are continuing problems at Kowanyama that have not been amenable to control by the justice group. Alcohol use and sale is a major stumbling block as the potential for a conflict of interest exists given that profits from the sale of alcohol are reported to provide the Community Council with revenues approximating $1.5 million year. Several members of the justice group are also members of the Kowanyama Council and it has been suggested by the Community Development Officer that sly grogging is a widespread practice that neither the justice group or Council seeks to confront. Results in other areas need to be tempered in the realisation that some of the major repeat offenders are currently in jail.

The Kowanyama justice group has demonstrated a greater potential in other areas, notably in dealing with juveniles, intervening in family and community disputes before they get out of hand and in working collaboratively with Council to improve opportunities and quality of life within the community. This conforms with Abel's (1982, pp. 272-3) theorising on the scope of informal justice options which are recognised to work best in relation to dealings with young people and with family disputes. In reference to research undertaken by the Gluks in the 1950s, Abel (1982, p. 272) contends that progressive and early intervention with juveniles can prevent the slide into criminal behaviours and recidivism. Similar claims are made about family conflicts where formal institutions generally intervene too late to make a difference (Abel 1982, p. 273). In Kowanyama, the justice group is seen by community members as a body which people can approach for advice and intervention in family matters. Mediation and dispute resolution are part of the regular functions undertaken by the justice group.

The establishment of the justice group also provides the opportunity for a better articulation between the community and the formal justice agencies and individuals working in the community. Substantial progress has been made in the areas of community corrections and with the local police. The opportunities for a better relationship with the judiciary is yet to be realised but remains an area of possible improvement with the impending operation of Aboriginal Magistrate Courts in the community and some concessions to the role and authority of the justice group on the part of visiting magistrates. The potential for progress is demonstrated in this regard based on the significant developments at the Aboriginal community of Palm Island where pre-sentencing reports delivered by its justice group are now a regular part of court procedure. Other changes have resulted from the implementation of more enlightened policing strategies and a preparedness on the part of Corrective Services to use and rely on the justice group's judgement in dealing with matters of parole and supervising community service orders.

Ways Forward: Reconciling Aboriginal Self-Determination and Formal State Law

As was apparent with the release of the Kowanyama Council's press release following the Customary Law Conference in Kowanyama 7-11 July 1997, the Kowanyama Community Council and the justice group are alive to the potential for their principles and practices of a separate system of Aboriginal law to exist and to grow. At the same time, such a prospect is clearly denied by the statements of the local police service and visiting magistrates who deny the possibility of an alternate legal order existing along side state law. Their conviction is that there can be only one system of law in Australia. The juvenile justice agency in the Queensland Government has also argued that it is not possible for Aboriginal law to come into play as matters of confidentiality and due process are enshrined in the Juvenile Justice Act 1992. Their view is that the scope of Aboriginal justice bodies be restricted to advisory functions (Bimrose and Adams 1995, p. 58). Yet, the reality and practice at Kowanyama differs. Local Aboriginal conceptions of authority are working and impacting on children to achieve socially responsible behaviour in ways that the juvenile justice system could never imagine or possibly achieve. Aboriginal practices of shaming and public humiliation and some cases of physical punishment are occurring and achieving their desired results.

What the Kowanyama community example demonstrates is the opportunity for a balance or reconciliation of local and state institutions, informal and formal law in remote Aboriginal communities. This was anticipated by Sheppard in the Information Paper prepared for the Customary Law Planning Workshop held in Doomadgee Aboriginal community, in north west Queensland, in June 1994. Sheppard notes that:

Community justice schemes incorporate a wide variety of initiatives which may be useful to communities in dealing with crime and associated problems. These might involve purely traditional ways of settling disputes. Or they could be established formally as in the case of community courts in the non-Indigenous sense of courts incorporating innovative procedures including mediation and negotiation. Community justice schemes could also incorporate community policing, night patrols, diversion of people from criminal justice systems and reliance on community authority structures such as Elders councils (Sheppard 1994, p. 10).

In this scenario presented by Sheppard, the Kowanyama justice group model provides a means for ensuring that local conceptions of law and good process are observed and respected and that justice and social order issues are managed with significant and controlling input from the community. Furthermore, it represents a broadening of mainstream justice through the introduction of methods of mediation, dispute resolution and crime prevention that are inspired by Indigenous practice and tradition. Indeed, this model provides for mechanisms and processes developed by Indigenous Australians from which the wider Australian community can learn and develop.

This is not simply a matter of replacing formal State laws with local practices, which may neither be desirable or feasible, but of introducing alternate and complimentary mechanisms which do work and allowing the community some autonomy and discretion apart from intrusive monitoring of external agencies to implement processes and practices that can get results. What is occurring at Kowanyama is well conceptualised by Bimrose and Adams (1995, p. 59):

The groups have applied or accessed those processes and structures of the legal system they find useful and they have adapted practices and processes of Aboriginal Law to contemporary community contexts. Yet it is not simply a synthesis of the two laws . . . it goes further. It is about recognising that there are two laws: Aboriginal Law with its rules, processes and principles for keeping social order and settling disputes and European law with its codified laws, legal systems, law enforcement and community corrections agencies. The justice groups believe it is about finding ways for these two systems to co-exist.

The Queensland Government now faces the challenge of accommodating growing community demands for support and opportunities for Aboriginal self-management in the justice system. The view offered by Michael Dodson (1996, p. 5), the Aboriginal and Torres Strait Islander Social Justice Commissioner, is that:

the role of our [Aboriginal] laws in the resolution of disputes and the maintenance of social control is a real option. They exist and they are alive with the potential to assist where nothing else seems to work.

However, the responses of government agencies remains inconsistent and unpredictable. Formal policy pronouncements and reports of adherence to full implementation of the Royal Commission into Aboriginal Deaths in Custody Recommendations are contradicted in many cases by a failure to act on the ground. This is highlighted in detail in the recent study of Cunneen and McDonald (1997), which details the failure of governments to make substantive progress in a number of critical areas including Aboriginal and police community relations, use of arrest and imprisonment as options of last resort and a specific focus on young people. A common thread linking the shortcomings in this area is the failure to act on the key recommendation of the "need for negotiation and self-determination in relation to the design and delivery of services" (Cunneen and McDonald 1997, p. 7). Recommendation 188 is a central Recommendation. It reads:

That Governments negotiate with appropriate organisations and communities to determine guidelines as to the procedures and processes which should be followed to ensure that the self-determination principle is applied in the design and implementation of any policy or program which will particularly affect Aboriginal people (cited in Cunneen and McDonald 1997, p. 16).

In relation to Kowanyama, this discrepancy in policy commitment and practice can be seen in a number of examples. In recent years, there has been the development of policy standards in relation to policing in remote Aboriginal communities but some resistance or indifference from the police (with some exceptions) in relation to the role of the justice group. At the moment, there is a token acceptance of the justice group in dealing with family and juvenile matters but an insistence that the formal system of State law should ultimately prevail.

Corrective Services has continued to provide a range of sensible support and commitment to the justice group and particularly the role of Community Development Officer (Justice Issues). This support though is precariously based on a funding grant of $35 000 to support this position which is only guaranteed on a year to year basis. The Community Development Officer has expressed vulnerability as Corrective Services have expressed concern about the broadening of the roles performed by this position (sport and recreation, looking after the community bus, and the like), which do not conform to community corrections functions. It is not clear whether the Queensland Corrective Services Commission is likely to provide additional support for communities for community corrections now that the Office of Aboriginal and Torres Strait Islander Affairs has responsibility for the Local Justice Initiatives program.

The Office of Aboriginal and Torres Strait Islander Affairs has come under sharp criticism from many quarters sine it took over program responsibility for the administration of the Local Justice Initiatives Program (Fourth Report, Aboriginal and Torres Strait Islander Social Justice Commissioner, 1996, p. 61, HREOC 1997, pp 508-9 and Interview with John Adams, Yalga-binbi Institute for Community Development, 27 June 1997).). The development of a Program Description and Funding Guidelines for the Local Justice Initiatives Program has been very protracted and as Mick Dodson has noted only $200 00 dollars of annual program moneys of $600 000 per annum had been spent up to November 1996. The slow progress in the development of the program can be attributed to the difficulties of establishing consensus amongst interested stakeholders in government (police, Corrective Services and the Justice and Attorney-Generals, the Aboriginal Co-ordinating Council and the Aboriginal Deaths in Custody Overview and Inter-departmental Committees).

Significantly, grassroots consultation does not feature as a key element of the long delays in getting the program up and running. The Office also had to endure several internal reorganisation and restructuring that diminished its capacity to focus on program development. Significantly, the initiatives at Palm Island, Kowanyama and Pormpuraaw developed in isolation form this program. Since November 1996, there has been a rapid deployment of funds in a hasty and ill-conceived fashion. There are also significant questions about whether a number of significant capital grants made over this period conform to the Funding Guidelines developed by the Office. The Table below provides selected details of program money allocated or spent.

Table 6 Grants Made Under Local Justice Initiatives Program November 1996 to May 1997
CommunityOrganisationProjectAmountStatus
Caloundra Community Org. Research $36 000 Current
Cherbourg Justice Group Establishment $46 000 Current
Logan Community Org. Research $38 000 Current
Logan Murrigunayah Support $60 000 Current
Murgon Kulali Co-op Facility $120 000 Minister
Toowoomba Jim Haga Hostel Facility $260 000 Minister
Ipswich Legal Services Program $83 964 Approved
Zillmere Koobara Research $50 000 Approved
Woorabinda Council Facility $99 645 Approved
Palm Island Rehab Capital $47 000 Approved
Hopevale Justice Group Establishment $60 700 Instalments
Yarrabah Justice Group Establishment   Awaiting
Lockhart Justice Group Establishment   Awaiting
Petford Farm Facility $225 000 Minister

Source: Office of Aboriginal Torres Strait Islander Affairs, Local Justice Initiatives Program Grants Register (as at 30 May 1997).

There is evidence of considerable risk of politicisation of the program as the temptation for government to demonstrate quick results in its attempts to deal with law and order issues. It is already apparent that funds made available to support local justice initiatives have been used as incidental non-recurrent grants to support the provision of infrastructure support and youth camp programs on an ad hoc basis. These are not provided for under the terms of the Funding Guidelines for the Program which prescribes eligible activities (Office of Aboriginal and Torres Strait Islander Affairs 1996, p. 28), as including:

  • the employment of a consultant facilitator
  • administration/co-ordination for justice groups
  • relevant training
  • networking
  • limited finical support to maintain an office

Whilst these other capital-based initiatives are worthwhile endeavours, they only indirectly facilitate greater community control and capacity for effective management of local problems and in terms of the Funding Guidelines of the Program should be funded from alternative sources.

The success of the pilot program established with the involvement of Yalga-binbi Institute and the Queensland Corrective Services Commission and the failure of significant progress in the further consolidation of initiatives has led to a convincing argument that the program might be better administered by the Queensland Corrective Services Commission (Interview with John Adams, Yalga-binbi Institute for Community Development 27 June 1997). There are a number of reasons for this. Firstly, it is widely perceived that the location of the Office of Aboriginal and Torres Strait Islander Affairs within the Department of Families, Youth and Community Care means that it is influenced by the welfare functions of the wider department related to child protection, youth programs rather than empowerment of Aboriginal communities to establish greater autonomy. The grant applications process appears to have been clearly influenced by other areas of portfolio responsibility for youth and juvenile justice, seeing program funds from this program diverted to other capital needy portfolio areas such as youth support. Corrective Services also has achieved proven results in facilitating the establishment of viable models of community justice groups. This is an especially telling consideration in terms of the careful processes of consultation and planning involved with the Yalga-binbi consultants in establishing the pilot projects. It is not apparent how the Office of Aboriginal and Torres Strait Islander Affairs can replicate these processes of support without careful preparation and training of its staff at a time when the Office is being restructured and down-sized to concentrate on policy advisory roles in favour of direct community support and advisory roles performed by Yalga-binbi Institute for Community Development that have been so essential in the establishment and consolidation of the community justice groups already established.

Developments relating to the Department of Justice and Attorney General are also uneven. In discussions I had with the Courts Division of the Department of Justice and Attorney-General in 1995, there was strong resistance expressed to any prospect of recognising informal Aboriginal conceptions of law. At the same time, formalised alternative processes and practices have been the subject of innovation within the Department. Alternative Dispute Resolution practices and training have been encouraged for many Indigenous communities as has justice of the peace training. There have also been discussions of implementing a formalised community conferencing model for Aboriginal communities. These are initiatives that have originated within Government rather than developed by and for Indigenous communities and as such must be treated with some caution. Otherwise, the practices of the Courts in seeking community input into sentencing is inconsistent as it is left to the discretion of magistrates working in particular regions. It would be timely for the Courts Division of the Department of Justice and Attorney-General to formalise policy and practice on this issue.

Conclusion

The diversity and integrity of the measures introduced at Kowanyama suggests that the model goes well beyond a simple advocacy of a return to "Aboriginal ways" whose exponents, Depew (1996, p. 49) alerts us to, often make unrealistic extrapolations, naive and overly general assumptions about "Aboriginal culture". Depew's important exhortation is for debates and theorising about future directions in Aboriginal local justice need to go further and be attuned to the complex realities of Indigenous communities in their diverse locations today. What this study of the Kowanyama experience contributes is evidence of how a carefully managed consultation process and community involvement in all stages in the development and operation of alternative justice arrangements can provide workable options. The justice group model at Kowanyama provides a mechanism for community control and input: it is possible for the community to have its say in the administration of justice and its prescriptions and recommendations are contributing to broader community development processes that are making Kowanyama a safer place and a better place to live.

The justice group at Kowanyama is a promising case of self-management that has been achieved on the basis of minimal assistance from government and in many cases, without a great level of awareness on the part of government. Ironically, this may in fact be one of the model's greatest strengths. My hope would be that the opportunities for the extension of the justice group model to other communities, with government funding now available, is that others are mindful of the strengths of the Kowanyama justice group based on community ownership, control and autonomy. The significant challenge for the bureaucrats and politicians who oversee this area of program development is to avoid reverting to the familiar habits of seeking to control, incorporate and assimilate. This challenge was well appreciated by Coombs (1994, p. 5) whose study of the options for Aboriginal autonomy calls into question:

the insistence in our policies towards Aborigines that their future requires that they abandon their Aboriginal way of life and actively seek to become assimilated into our industrial, urbanised society, accepting its work ethic and related values, acquiring its skills and ceasing to exist in any significant sense as a distinct people within Australian society.

The test in this instance is whether the Queensland Government can offer realistic and useful support for local initiatives rather than only seeking to reorient communities toward better acceptance of existing mainstream legal processes and institutions. A preoccupation with the latter strategy flies against the whole thrust of the international current of reform in Indigenous affairs toward respect and acknowledgement of cultural difference and diversity and the capacity for Indigenous peoples to manage their own affairs21. The challenge also remains for such initiatives to receive the support and recognition of government agencies and employees who deal with Indigenous communities directly both as a matter of common sense and as effective and efficient ways of dealing with justice and rehabilitation22.

Profitable areas for further research involve increasing emphasis on systematic collection of data about crime and disorder and the formal and informal responses to them in particular cases. This involves not just the advocacy of alternative approaches but detailed assessments of the results being realised and the impediments encountered. There is now a rapid expansion of proposals for justice schemes in several Aboriginal and Torres Strait Islander communities. Systematic analysis of schemes in operation provides a basis for a better understanding of processes and structures being developed by communities that can make significant impacts on the incidence of crime and reduce recidivism. Reporting and dissemination of the results and achievements of these schemes can serve to inform public debate and policy deliberations and so promote a greater preparedness to accommodate alternatives not only because they can lead to improved outcomes, but also as a practical measure of commitment to the opportunities they provide for self-determination.

References

Abel, Richard. (1982), "The Contradictions of Informal Justice." pp. 267-320 in R. Abel (ed), The Politics of Informal Justice, Vol. 1, Studies in Law and Social Control, Academic Press, New York.

Aboriginal and Torres Strait Islander Social Justice (1994), Second Report, Australian Government Publishing Service, Canberra.

--------(1996), Fourth Report, Australian Government Publishing Service, Canberra.

Adams, John, Catelain, John & Martin, David. (1994), Aurukun Community Plan: Report Two - Community Survey: Dealing with Grog. Thuringowa: Yalga-binbi Institute for Community Development Aboriginal and Torres Strait Islanders Corporation and the people of Aurukun.

Atkinson, Lynn. & Dagger, Dianne. (1996), Persons in Juvenile Corrective Institutions, Amended Series 64 to 67, New Series 68 to 75 (September 1993 to June 1996), Australian Institute of Criminology, Canberra.

Atkinson, Geoffrey. (1996), "The Standing Committee of Attorneys-General and Implementation of the Australian Law Reform Commission on Customary Laws", paper delivered to the Inaugural Central Queensland Land Council Conference on Customary Law, 26-27 February, Mackay, Queensland.

Australian Bureau of Statistics, (1994), National Aboriginal and Torres Strait Islander Survey: Detailed Findings, Australian Government Publishing Service, Canberra.

-----(1994), National Aboriginal and Torres Strait Islander Survey: Queensland, Australian Government Publishing Service, Canberra.

Australian Law Reform Commission (1986), Recognition of Aboriginal Customary Laws, Report No. 31, Vols. 1&2, AGSP, Canberra.

Bimrose, Glenys & Adams, John. (1995), Review of Community Justice Groups: Kowanyama, Palm Island, Pormpuraaw, Yalga-binbi Institute for Community Development Aboriginal and Torres Strait Islanders Corporation, Thuringowa, Queensland.

Blackman, Shane & Clarke, Bernard. (1991), Aboriginal and Islander Perceptions of the Delivery of Correctional Services to Indigenous People in North Queensland, Yalga-binbi Institute for Community Development Aboriginal and Torres Strait Islanders Corporation, Thuringowa, Queensland.

Bottoms, Timothy. (1992), An Introduction to Kowanyama (Audio-recording), Kowanyama Aboriginal Community Council and Kowanyama State School, Kowanyama.

Braithwaite, J. (1989), Crime, Shame and Reintegration, Cambridge University Press, Cambridge and Melbourne.

Buchanan, Cheryl. (1994), Responding to Custody Levels: A Greater Community Response to Addressing the Underlying Causes. Council For Aboriginal Reconciliation, Australian Government Publishing Service, Canberra.

Canadian Government. (1993), Aboriginal Peoples and The Justice System: Report of the National Round Table on Aboriginal Justice Systems, Canada Communications Group, Ottawa.

Clairmont, Donald. (1996), Alternative Justice Issues for Aboriginal Justice, in Special Issue on Popular Justice: Conflict Resolution Within Communities, Journal of Legal Pluralism, No. 39, pp. 125-158.

Commonwealth of Australia. (1991), Royal Commission into Aboriginal Deaths in Custody, National Report, Commissioner Elliot Johnston, Australian Government Publishing Service, Canberra.

------ (1995), Royal Commission into Aboriginal Deaths in Custody Monitoring Unit, Three Years On: Implementation of the Commonwealth Government Responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody: Volume One : Overview Reports, Pirie Printers, Canberra.

------(1997), Royal Commission into Aboriginal Deaths in Custody Monitoring Unit, Implementation of the Commonwealth Government Response to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody, Annual Report, 1995-1996, National Capital Printing, Fyshwick.

Coombs, H.C. (1994), Aboriginal Autonomy: Issues and Strategies. Cambridge University Press, Cambridge.

Crnkovich, Mary. (1996), "A Sentencing Circle." in Special Issue on Popular Justice: Conflict Resolution Within Communities, Journal of Legal Pluralism, 39, pp. 159-182.

Cunneen, C. and McDonald, D. (1997), Keeping Aboriginal and Torres Strait Islander People Out of Custody: An Evaluation of the Implementation of the Recommendations of the Royal Commission in Aboriginal Deaths in Custody, Office of Public Affairs, ATSIC, Canberra.

Deeral, Eric. (1995), "Aboriginal Justice Programs". Paper delivered to the Queensland Corrective Services Commission Board Meeting, Palm Cove Cairns, 25-26 October.

Depew, Robert. (1996), "Popular Justice and Aboriginal Communities", in Special Issue on Popular Justice: Conflict Resolution Within Communities, Journal of Legal Pluralism, 39, pp. 21-68.

Dodson, Mick. (1996), "Hard and Strong Like Cement", paper delivered to the Inaugural Central Queensland Land Council Conference on Customary Law, 26-27 February 1996, Mackay, Queensland.

Finkler, Harold. (1983), "Legal Anthropology in the Formulation of Correctional Policy in the North West Territories." Paper presented at symposium 3: The Anthropology of Law in the Formation and Implementation of Socio-legal Policy, Symposia on Folk Law and Legal Pluralism, with ICAES, Vancouver, August, pp. 889-902.

----- (1985), "The Role of Traditional Inuit Measures for Social Control in Correctional Policy and Administration", pp. 321-325 in A. Allott & G. Woodman (eds.), People's Law and State Law, The Bellagio Papers, Foris Publications, Dordrecht.

Hazlehurst, K. (ed.), (1995), Popular Justice and Community Regeneration: Pathways to Indigenous Reform, Praeger, Westport.

International Labour Organisation. (1989). Convention Concerning Indigenous and Tribal Peoples in Independent Countries, pp. 230-241 in Aboriginal and Torres Strait Islander Social Justice Commissioner, Second Report, 1994, Australian Government Publishing Service, Canberra.

Kowanyama Land and Natural Resource Management Office. (1994), Strategic Directions, Kowanyama Land and Natural Resource Management Office, Kowanyama.

LaPrairie, Carol. (1996), "Introduction" in Special Issue on Popular Justice: Conflict Resolution Within Communities, Journal of Legal Pluralism, 39, pp. 1-8.

----- (1992), "Aboriginal Crime and Justice: Explaining the Present, Exploring the Future, Canadian Journal of Criminology, Vol. 34, July-October, pp. 281-298.

LaPrairie, C. & Diamond, E. (1992), "Who Owns the Problem? Crime and Disorder in James Bay Cree Communities", Canadian Journal of Criminology, Vol. 34, July-October, pp. 417-434.

Macpherson, James. (1993), "Report from the Round Table Rapporteur " in Aboriginal Peoples and The Justice System: Report of the National Round Table on Aboriginal Justice Systems, Canada Communications Group, Ottawa, pp. 3-12.

McGuire, Judge. (1994), Children's Court Of Queensland, First Annual Report, September 1993 - August 1994, Children's Court, 30-40 Quay Street, Brisbane.

Queensland Corrective Services Commission. (1995), Inmate Profiles for Aboriginal and Torres Strait Islander Inmates at Lotus Glen and Townsville Correctional Centres, Queensland Corrective Services Commission, Brisbane.

Queensland Government. (1994-5), Budget Statement: Aboriginal and Torres Strait Islander Affairs, Goprint, Brisbane.

-----(1995-6), Budget Statement: Aboriginal and Torres Strait Islander Affairs, Goprint, Brisbane.

Queensland Government Legislative Review Committee. (1991), Inquiry Into Legislation Relating to the Management of Aboriginal and Torres Strait Islander Communities in Queensland, Final Report, Goprint, Brisbane.

Office of Aboriginal and Torres Strait Islander Affairs. (1996), Local Justice Initiatives Program, Queensland Government, Goprint, Brisbane.

Palk, Gavan. (1995), Report on Consultations With Far North Queensland Aboriginal and Islander Communities With Respect to Offender Management Strategies, Queensland Corrective Services Commission, Brisbane.

Nicholson, A. (The Hon. Chief Justice). (1995), Address to the Indigenous Customary Law Forum, Parliament House, Canberra: 18 October.

Sheppard Susan. (1994), Information Paper: Customary Law Planning Workshop, Doomadgee, Department of Family Services and Aboriginal and Islander Affairs, Queensland, 21-23 June.

Sinnamon, Viv. (1994), "Aboriginal Land and Natural Resources and Self-determination: a North Queensland Experience." Paper Prepared for Technology Transfer in Remote Communities Conference, Murdoch University, Western Australia, April 6-7.

----- (No Date), Australian Indigenous Use and Management of Land and Marine Resources: Fisheries of the Lower Mitchell River North Queensland, Australia, Aboriginal Land and Natural Resource Management Office, Kowanyama.

Webber, Jeremy. (1993), "Individuality, Equality and Difference: Justifications for a Parallel System of Aboriginal Justice", in Aboriginal Peoples and the Justice System: Report of the National Round Table on Aboriginal Justice Issues, Canada Communications Group, Ottawa, pp. 133-161.

Footnotes

1 I would like to acknowledge the support of the Kowanyama Community Council's Community Development Officer (Justice), Dellis Gledhill and former community development workers, Bill Hiscox and Gordon Geertz for the co-operation and support they have shown me in undertaking my research on Kowanyama.

2 Since May 1996, Dr Paul Chantrill has been a lecturer at the Centre for Research in Aboriginal and Multicultural Studies, University of New England, Armidale, New South Wales. Up until 1996, Dr Chantrill worked in various policy positions with the Queensland Government's Office of Aboriginal and Torres Strait Islander Affairs and the Office of Cabinet in the Premier's Department.

3 These objectives conform with a number of key RCIADIC Recommendations (2, 87, 88, 104, 114, 116, 187, 214, 215, 220, 221 and 223).

4 Even though this data presents a somewhat overwhelming scenario of over-representation in custody, it is likely that the official figures do not reveal the full insight to what is occurring in remote communities. LaPrairie and Diamond's (1992, p. 417) study of remote Cree Indian communities in James Bay in Canada reiterates the point that geographically and culturally isolated reserve communities are notoriously under-reported in terms of the incidence of crime and disorder. They assert that only a small proportion of what actually occurs comes to the attention of formal legal processes. A similar scenario prevails in Kowanyama where the police suggest that incidents of family conflict and violence often go unreported. Anecdotal insights from community sources at Kowanyama confirms that much more happens than is officially reported. The use of police cautions for juveniles and referring matters to the justice is but one way in which matters go undetected. The police also indicated that they avoid intervention in incidences of conflict which are considered best sorted out within the community. Informed policing strategies prevailing at Kowanyama also call for diffusing community conflict rather than resorting to arrest. Minor and incidental matters are also being increasingly handled by informal community options. It is increasingly unlikely that formal records available to the outside community provide a complete picture of what is occurring within the community.

5 The Aboriginal community representatives appointed to constitute the Queensland Government's Legislative Review Committee (QLRC) (which was formed to report on appropriate legislation regarding the administration of Aboriginal and Torres Strait Islander communities in Queensland) raised the question of the appropriate administration of justice mechanisms and the importance of community self-government. The report recommended empowering Aboriginal communities to take control of justice mechanisms for themselves. Common to all recommendations is the perceived need and desire for Aboriginal autonomy so that communities might decide important questions themselves, and so be "self-determining" (QLRC, Final Report 1991: 8). The Committee believed that additional powers should be given in the relevant legislation to enable recognition of customary law and community involvement in the administration of justice, policing and correctional services. Importantly, the Committee sought an acknowledgement from legislators that the communities themselves are best placed to determine what justice mechanisms should be operating in their communities (QLRC, Final Report, Recommendation 41: 33).

6 The establishment of the law council at Aurukun was initially supported as an Alternative Governing Initiative based on community development work supported by Yalga-binbi Institute for Community Development. An amendment was made to the Local Government (Aboriginal Lands) Act 1978 which recognises and gives power to the Law Council.

7 Eric Deeral from the Hopevale community has received assistance from the Queensland Government in further developing a proposal for a network that links an actively functioning network of Elders across Cape York. This body is already playing a vital role in disseminating information, developing ideas about sentencing and in the rehabilitation and cultural and spiritual healing of inmates at Lotus Glen Correctional Centre (Deeral 1995: 7-8).

8 At the present time, Kowanyama correctional inmates on early release programs are sent to the Baa's yard facility at Pormpuraaw before being allowed to re-enter the Kowanyama community. Complex issues surround consideration of current arrangements and new proposals for community corrections. These relate to matters of community consent, shared facilities, quality and standard of facilities and infrastructure and standards of care and rehabilitation and alternative facilities for the care, rehabilitation and education of juveniles. These are matters of great significance and urgency but are best left to more detailed consideration and clarification of issues as the subject of a more detailed study on another occasion.

9 I view local justice and popular justice as interchangeable terms. The international literature uses popular justice as its standard description of informal or community-based initiatives in justice. Local justice is the term that has been regularly employed in the Queensland context of expanding Aboriginal community initiatives in justice and is more appropriate for this discussion of the initiatives at Kowanyama.

10 Abel (1982: 308), in particular, notes the tendency for discrepancies between the premises and assumptions drawn about the popular justice framework and the results actually achieved in concrete cases and scenarios. Abel (1982: 268) refers to cases of decriminalisation leading to a seemingly inevitable consequence of increasing the range of actions subject to criminalisation and contradictory scenarios emerging where informal conflict management strategies increase rather than decrease the levels of conflict in communities. Further contradictions are noted in informal mediation practices being subject in turn to the professional influences of mediators and psychologists once again orienting the practice to a more formal and mainstream orientation. Informal methods may not be able to provide sufficient protection to individuals and communities who may otherwise have access to the safeguards of due process available in the formal legal system.

11 Crnkovich's (1996) study is a strong testament to the dangers of non-consultative external imposition. In the case of the Inuit community a visiting judge implemented a circle sentencing practice derived from a completely separate Indian community without any consultation with the Inuit community of how it might work and what role the community representatives might play or how the practice might relate to Inuit custom or tradition. Justice Stuart in the case of Regina vs. Moses had issued an earlier warning: "[i]f simply imposed upon communities by the justice system, community alternatives will fail" (cited in Crnkovich 1996:170). Crnkovich's study reveals that this method was far from appropriate for the Inuit people concerned and suggests that officials accommodating reforms and alternatives in local communities should be willing to have their models adapted and reconstructed to reflect local values and customs (Crnkovich 1996: 75).

12 The relevant sections of the Program Guidelines are as follows:

Any initiatives developed will need to fall within the confines of the existing State systems. In particular, it should be noted that the justice groups have no statutory authority . . . Consequently, justice groups have no direct responsibility under the Program for punishing misbehaviour or criminal offenders.

Responses to law and order problems suggested by the justice groups are essentially a means to bring forward Aboriginal and Torres Strait Islander communities' views and advice which may be incorporated into State systems, where appropriate (Office of Aboriginal and Torres Strait Islander Affairs, 1996, p. 13).

13 With this in mind, a more empirically based focus on individual community cases is an essential component of current research agendas. However, there are few studies to draw on in Australia and so my attention is given to the considerable research on community initiatives undertaken in Canada as models for inquiry (Depew 1996, LaPrairie 1992 & 1996).

14 Viv Sinnamon, the Director of the Land and Natural Resource Office at Kowanyama indicates that the people of Kowanyama seek self-governance of the lands they occupy and have established the Office to achieve this end (Sinnamon 1994: 2). The Strategic Directions statement outlines the community's vision for the continuing exercise of Aboriginal rights and continuance of Aboriginal culture governing the use and conservation of natural resources. Specific objectives include: maximising Aboriginal control; ensuring community determined development of Aboriginal lands and natural resources; use of Indigenous and academic knowledge in a professional way and in minimising conflict within the community wherever competing valid interests are expressed (Kowanyama Aboriginal Land and Natural Resource Management Office, Strategic Directions, 1994: 8 & 12-14 and Sinnamon n.d.: 8).

15 Relations have changed in Kowanyama since late 1995 with the placement of a new police Sergeant with a commitment to better community police relations and application of informed and appropriate community policing strategies informed by the Queensland Governments Remote Aboriginal and Torres Strait Islander community policing strategy.

16 Alcohol use is endemic in other Aboriginal communities across Cape York communities. The Aboriginal and Torres Strait Islander Survey (1994, p. 15) identified that 85% of the people in Cape York Aboriginal communities identified alcohol as a major health and social problem in their community.

17 In 1991, Blackman and Clarke from the Yalga-binbi Institute for Community Development in Townsville released the findings of a study called Aboriginal and Islander Perceptions of the Delivery of Correctional Services to Indigenous People in North Queensland. In it, they argued that traditional structures of authority and social control and broad areas of ceremonial and social life were still strong in communities in far north Queensland. They determined that these traditional structures had a role to play in the administration of justice (Blackman & Clarke 1991: 23). In these communities, traditional sanctions relating to local crime still came into play, irrespective of the actions taken by the local police or the courts. Blackman and Clarke recognised the potential in these circumstances for alternative arrangements to administer law and order which involved a greater level of self management. The areas identified for extended community involvement included alternate sentencing, community-based custodial arrangements, development of community-based initiatives and the identification of the factors that impact on recidivism.

18 It has been commented on by police and local residents that detention is often an ineffective deterrent. Kowanyama police have suggested that a 'rites of passage' syndrome can prevail where in some instances younger people can prove their rights of passage to manhood by spending some time in a correctional facility. Prison is sometimes locally referred to as "my second home" and the local police have complained that jail can be perceived as a place to get away from the pressures and boredom of the humdrum of community life. Correctional facilities offer security of a place to sleep, access to reasonable food, an organised recreation program and access to training and support mechanisms that may not be available at home in the Kowanyama community.

19 The question of reform of court processes and practices is a separate though highly topical matter especially with the contribution of the Chief Justice of the Family Court the Honourable Justice Nicholson who has taken a strong public stance on Aboriginal customary law issues relating to family law. The views of the Chief Justice were outlined in his address to the Indigenous Customary Law Forum, Parliament House - Canberra on 18 October 1995.

20 A program and legislative initiative of the Queensland Government during 1994 was in empowering Aboriginal Deed of Grant in Trust Communities to take specific roles and responsibilities for the development and administration of Council by-laws.

21 In the area of international law and the study of human rights there is increasing emphasis on the recognition of customary laws and practices as matters of basic human rights that ought to be acknowledged and protected. The draft UN Declaration on Indigenous Rights deals with this issue and affirms the right of Indigenous people to have their customs and practices recognised by the governments and laws operating in a given country. Article 33 of the draft Declaration reads:

Indigenous people have the right to promote, develop and maintain their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognised human rights instruments (Reprinted in Dodson, 1994, Appendix 4: 256).

The International Labour Organisation approaches the question of the recognition of customary laws more directly. ILO Convention 169 of 1989, the Convention on Indigenous and Tribal Peoples in Independent Countries raises theses issues. Article 8 reads as follows:

In applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws. These people shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognised human rights. Procedures shall be established, wherever necessary, to resolve conflicts which may arise in the application of this principle . . . (cited in Dodson 1994, Appendix 4: 228- 241).

22 An area of continuing concern will be in monitoring how the operation of local justice initiatives are integrated with the broader operation of other government law and justice agencies and the promotion of the acceptance by these agencies of the aims and operation of the justice groups. Local initiative will inevitably be thwarted by unresponsive and unsupportive government as occurred at Echo Island in the Northern Territory in the 1980s.