The context of reform

Article from the Melbourne Herald, 23 March 1934.
Article from the Melbourne Herald, 23 March 1934. (A1, 1936/327, p.88)

Dhakiyarr's trial and appeal were not the only catalyst for the important changes in Aboriginal administration later in the 1930s. Records in the National Archives' collection show that the events of 1933–34 followed years of criticism of the federal government for failing to protect Northern Territory Aborigines, and years of vigorous attempts to improve the system of justice for them.

Just five years earlier, police retaliation against Aboriginals who killed a white prospector on Coniston Station in Central Australia drew national and international attention. The much publicised 'Coniston Massacre' was followed by public outcry over what many called a 'whitewash' – the police involved admitted to 17 Aboriginal deaths, but were exonerated by a Board of Enquiry.

In 1928 the government of Stanley Melbourne Bruce asked JW Bleakley, the Queensland Chief Protector of Aborigines, to report on Aboriginal policy in the Northern Territory. Bleakley's report, The Aboriginals and Half-Castes of Central Australia and Northern Territory commented on the injustice of applying British law to crimes involving tribal law and proposed a form of tribal court.

Aboriginal employment conditions were under scrutiny as well. In the early 1930s the British Anti-Slavery Society in London alleged that northern Aboriginals worked in conditions no better than slavery.

And, in the area of capital punishment, reform was already well under way by the time Dhakiyarr was brought to Darwin in April 1934. Answering public criticism of the harshness of the mandatory death penalty for murder convictions on 'tribal' Aboriginals who could not have been aware of European law, from the early 1930s the federal government began to commute some death sentences to life imprisonment.

Months before the trial, the Department of the Interior decided to pre-empt the possibility of capital punishment in Dhakiyarr's case. As the article below reports, the government was concerned not to 'breach the faith' of Dhakiyarr and the other Yolngu men who had voluntarily travelled to Darwin. While Dhakiyarr was en route from Arnhem Land to Darwin with the peace party, Interior Minister JA Perkins announced that, whatever happened, Dhakiyarr would not be hanged.

Judge Wells and law reform

Article from the Melbourne Herald, 1 May 1934.
Article from the Melbourne Herald, 1 May 1934. (A1, 1936/327, p.59)

Some time before Dhakiyarr's trial, the Attorney-General's Department, which was responsible for Northern Territory Ordinances, had received instructions to begin reforms urgently. One cause of southern concern was the failure of judges to ensure that accused Aboriginals could understand what was happening at their trials. Justice RID Mallam, Northern Territory Supreme Court judge from 1928 to 1933, resisted this concern by insisting that if any defence lawyer wanted a particular piece of evidence translated, then he would cause every word of the trial to be translated – however long that took. His threat must have been effective, for defence lawyers did not insist on it.

There was also concern about the fairness of European courts imposing penalties on crimes arising from the settlement of disputes between Aboriginal people. Sydney University anthropologist AP Elkin, among others, campaigned for a change in court methods.

Shortly after his appointment to the Northern Territory Supreme Court, Judge Wells (who presided over Dhakiyarr's trial), reviewed and made recommendations on Northern Territory law in respect to Aboriginals. He opposed the establishment of Native Courts, but supported the introduction of discretionary sentencing in capital cases where both the accused and the victim were Aboriginal.

Concerned about public protest in Dhakiyarr's case, Minister for the Interior JA Perkins instructed that Judge Wells be asked to draft an ordinance that would give effect to his recommendation on judicial discretion in sentencing.

Because Wells' draft ordinance applied only when both the accused and the victim were Aboriginal, it would not be applicable in Dhakiyarr's case. The Department amended his draft and extended judicial discretion to cases where the victim was white.

In a statement to the press on 1 May 1934, Minister for the Interior JA Perkins described the forthcoming ordinance as framed for dealing leniently with the natives and as a new system of justice that would be in place for Dhakiyarr's trial.

Wells was not consulted on the final text of the amendment and was highly critical of it when he saw the ordinance gazetted on 3 May 1934. The Secretary of the Attorney-General's Department responded that Wells should be reminded that 'matters of draftsmanship, not national policy, were his concern'.

Despite the discretion granted by the new ordinance, Wells sentenced Dhakiyarr to death. Reports in August 1934 of protests against the sentence included demands to recall Wells. Wells was quoted in these reports as describing the new ordinance as a 'back-door method' of abolishing capital punishment and as 'just another case of ill-considered legislation'.

After Dhakiyarr's trial

Northern Territory Ordinance, No. 7 of 1937.
Northern Territory Ordinance, No. 7 of 1937. (A659, 1942/1/4450, p.6)

The conflict between the Northern Territory judiciary and the Canberra departments of the Attorney-General and the Interior was also apparent in the vigorous protest mounting against a variety of other issues. In the years following Dhakiyarr's trial, a number of other amendments to the Northern Territory Ordinance were enacted with the aim of improving the system of justice for Aboriginal people.

The Australian Association for the Amelioration of Native Races (AAANR) was pushing for Commonwealth control to end the muddle of state Aboriginal administrations pursuing different policies. The first Conference of Commonwealth and state authorities to try to coordinate state policies was held in Canberra in 1937.

The AAANR also wanted an advisory board of experts, women to be appointed as Aboriginal protectors as well as men, and a system of patrol officers to work with Aboriginal communities instead of the police. Although discussed in the late 1930s, because of the outbreak of World War II, trainee patrol officers were not appointed in the Northern Territory until 1948.

AAANR also opposed encroachment on reserves by whites, including miners, argued that interpreters should not be 'police boys' and that Aboriginal women should not be forced to give evidence against their husbands. Partly in answer to these demands, the government amended the Northern Territory Criminal Code in 1937 to prohibit forcing any Aboriginal living as a 'husband, wife or consort' to give evidence against his or her spouse.

Sydney University anthropologist AP Elkin wanted judges to have anthropological training in order to understand 'mitigating circumstances'. He also argued that certain hearings could be adjudicated by patrol officers, not magistrates, in the places where the offences occurred.

In 1940 another amendment to the Northern Territory Ordinance created Magistrates for Native Affairs to hear less serious charges in remote areas.

In 1935, the year after Dhakiyarr's trial, Methodists were given permission to establish the Yirrkala mission station with the aim of Christianising and pacifying the Aboriginals of the north-eastern peninsula. The Department of the Interior also specially commissioned a government anthropologist, Donald Thomson, to investigate and propose solutions to conflict between Arnhem Land tribes and outsiders. He presented his first report on the people of the north-east in 1936.

The reforms that followed Dhakiyarr's case responded to long-term problems as well as to the specific conduct of Judge Wells at the trial. Dhakiyarr's case, the unjust court procedures and the consequences for Dhakiyarr accelerated the process of bringing long overdue reforms to the legal system.

Copyright National Archives of Australia 2019