Analysis
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Martin Kriewaldt:
Heather Douglas:
Geoffrey Sawer
Martin Kriewaldt, ‘The Application of the Criminal Law to the Aborigines of the Northern Territory of Australia’
(1960) 5 University of Western Australia Law Review 1-50. Excerpt from an Introduction by G. Sawer. Click here for full text. Abstract Shortly before his death, Judge Kriewaldt had been in communication with me with a view to taking a period of leave from the Bench and spending it as a Visiting Fellow at the Australian National University, in order to revise and complete the following paper which he himself regarded as “notes” on the subject – a mere preliminary draft. I have edited his work so as to produce a continuous narrative, omitting mainly passages which adumbrated further field inquiry.
Heather Douglas & Mark Finnane, ‘Indigenous Crime and Settler Law: White Sovereignty After Empire’
(Palgrave, 2012) Click here for full text. Abstract In a break from the contemporary focus on the law's response to inter-racial crime, the authors examine the law's approach to the victimization of one Indigenous person by another. Drawing on a wealth of archival material relating to homicides in Australia, they conclude that settlers and Indigenous peoples still live in the shadow of empire.
Heather Douglas, ‘Assimilation and Authenticity: The ‘Ordinary Aboriginal Person’ and the Provocation Defence’
(2007) 27(2) Adelaide Law Review 199-226. Click here for full text. Abstract In many Australian States and Territories the provocation defence has recently been the subject of law reform. In the Northern Territory, since the 1950s judgements of Kriewaldt J, Aboriginal people’s responses to provocation in that jurisdiction have been measured against the ‘ordinary Aboriginal person’ rather than the ‘ordinary person’. Through a discussion of Northern Territory case law and legislation, this article examines the development of the provocation test in the Northern Territory and the construction of the ‘ordinary Aboriginal person.’ This article argues that Kriewaldt J’s original formulation of the ‘ordinary Aboriginal person’ test was linked to his support for the assimilation policy and that current formulations of the test cause intractable problems. Ultimately the article argues that the problems with the formulation of the ‘ordinary aboriginal person’ test in the Northern Territory provide further support for the abolition of the defence.
Geoffrey Sawer ‘Judge Martin Kriewaldt: Nine Years of the Northern Territory Supreme Court’
(1960-62) 1 Adelaide Law Review p 148. Click here for full text. Abstract Martin Kriewaldt served on the Supreme Court bench for 9 years until his death on 12 June 1960. Among his last acts was a letter to Geoffrey Sawer asking that his letters and other legal papers be preserved and used to the best advantage. This article endeavours to advance that goal, through a survey of his judgements from 1951 through 1959. The survey is unique for its times; rarely could one find such a complete compendium of a judge’s professional work over the course of his judicial career. His work is fascinating as part of the fabric of the sociology of the Northern Territory, and the sociology of judicial activity in this unusual jurisdiction, and more generally. His decisions are furthermore of interest as they are related to a number of legal issues in novel and emerging areas of law, in which the authorities were at the time sparse or conflicting. Not only were his decisions foundational in these emerging areas of law, but remain of continuing relevance to the administration of law in the Northern Territory in subsequent decades. Sawer’s article categorises and reviews the 372 cases Kriewaldt heard from 1951 through 1959, across the full spectrum of areas of law; there is a dedicated section on Indigenous legal issues on page 148.
Heather Douglas, 'Justice Kriewaldt, Aboriginal Identity and the Criminal Law'
(2002) 26 Criminal Law Journal 204. Click here for full text. Abstract The criminal justice system continues to encounter dilemmas about how it can appropriately accommodate Aboriginal Australians. Justice Martin Kriewaldt was a judge of the Northern Territory Supreme Court from 1951 to 1960. Little has been written about his legacy. However, his influence is important and his views continue to inform current debates in criminal justice. During his period on the Bench Kriewaldt J frequently struggled with the question of how to understand and distinguish Aboriginal people in relation to the criminal law. This article examines some of the reported and unreported judgements of Kriewaldt J and focuses attention on his attempts to identify Aboriginal people in relation to the criminal law.
Heather Douglas, ‘Legal Narratives of Indigenous Existence: Crime, Law and History’
PhD thesis (2006) Australasian Digital Theses Program, Melbourne University. Click here for full text. Abstract This thesis examines criminal law in the context of Australian Indigenous–settler relations. Through the jurisprudence of Justice Kriewaldt in the Northern Territory, it explores the relationship between the policy of assimilation and the application of the criminal law to Aboriginal people. Justice Kriewaldt was the sole judge of the Northern Territory Supreme Court during the 1950s. This was an important period in Australian history when the assimilation policy was at its highpoint. The thesis focuses on three areas of criminal justice–provocation, sentencing and alcohol consumption regulation. Both for Justice Kriewaldt and, in contemporary times, these areas were and continue to be of particular relevance to Aboriginal people confronting the criminal justice system. The thesis demonstrates that Justice Kriewaldt’s approach in these areas was informed by his support for the assimilation policy. It is argued that Justice Kriewaldt generally understood Aboriginal people to be uncivilised and that he applied the criminal law to assist in civilising Aboriginal people so that they could become assimilated. This thesis also explores how Justice Kriewaldt’s jurisprudence has pervaded current approaches to dealing with the interaction between Aboriginal people and the criminal law. The thesis argues that although echoes of Kriewaldt’s 1950s approach are persistent within contemporary applications of the criminal law to Aboriginal people in the Northern Territory, there have also been shifts in approach. It is contended that Aboriginal people are increasingly understood to be culturally devastated and sick, and that contemporary criminal law frequently aims to restore and repair Aboriginal people to their communities, rather than to assimilate Aboriginal people. It is argued that this approach has opened up a space for Aboriginal people to become more involved. Note: This document is held at the University of Melbourne ePrints Repository (UMER) at http://repository.unimelb.edu.au/10187/55. Access to this document is currently restricted to staff and students of the University of Melbourne. If you would like to obtain an electronic copy, please contact the author by email. The author reserves all intellectual property rights in regards to the use, reproduction and publication of this thesis.
Heather Douglas, ‘Customary Law, Sentencing and the Limits of the State’
(2005) 20(1) Canadian Journal of Law and Society, pp.141-156. Click here for full text. Abstract The issue of customary law punishment, especially "payback ", has stretched the limits of the criminal law in a range of sentencing judgements in Australia's Northern Territory. A number of judgements relating to customary law punishment are discussed in this essay. Successive Australian judicial decisions have stated that Aboriginal criminal law did not endure beyond British settlement. However, the jurisprudence of the Northern Territory does not quite reflect this position. The response of the judiciary in the Northern Territory to customary punishments has been to develop a kind of soft legal pluralism. Judges both take into account the proposed punishment, and yet do not formally condone it. The judiciary has attempted to maintain control over customary punishment while being beholden to Aboriginal communities for evidence of appropriate customary responses, and for the carrying out of the promised punishments. This leads to a complex situation where Aboriginal people are both supervised and supervisor, and the state is both in and out of control.
Heather Douglas, ‘The Curse of white Man’s Water: Aboriginal People and the Control of Alcohol.’
(2007) 4 (1) University of New England Law Journal, pp. 3-33. Click here for full text. Abstract* The question of how to respond to the devastating impact of alcohol on Indigenous communities continues to be controversial. Recently the Northern Territory and Commonwealth governments have attempted to address the problem, introducing extensive changes to the way in which alcohol is regulated. The underlying concern of these recent initiatives is the protection of Aboriginal people from the devastating effects of alcohol. Alcohol has consistently been linked to high levels of crime and violence, significant health problems and loss of cultural identity in Aboriginal communities. For example recent statistics from the Northern Territory show that in the four years from 2001 there was an average of 2000 assaults and 110 sexual assaults per year that were related to alcohol. Between 1992–2001 the Northern Territory recorded the highest proportion of deaths and hospitalisations related to alcohol in Australia. Many recent studies have also associated loss of cultural identity with alcohol abuse. From early in Australia’s history alcohol was used to barter for the sexual services of Aboriginal women and as payment for Aboriginal labour. Langton notes that alcohol was used by the colonisers to seduce Aboriginal people into interacting with white society politically, economically and socially. The question of how to regulate the consumption and distribution of alcohol to Aboriginal people has continued to occupy courts and legislatures in Australia ever since. This article follows the development of the legal control of Aboriginal people’s consumption of alcohol and the distribution of alcohol to Aboriginal people from the 1950s on, focusing on Australia’s Northern Territory. The interaction between Aboriginal people and alcohol has been a source of tension in the relationship between white people and Aboriginal people since colonisation. It is concerned with understanding the transitions from government managed top-down prohibition during the 1950s, to various regulatory regimes that relied upon Aboriginal people’s collaboration in their design and implementation over the intervening period, to the recent return to top-down regulation of alcohol. The article explores the tensions involved in the approaches to regulation of Aboriginal people’s drinking and shows how the ideas underlying the assimilation policy are reflected within new approaches to alcohol regulation.
Heather Douglas, ‘Assimilation, Lutheranism and the 1950s justice of Kriewaldt’
[2004] Australian Journal of Legal History 12 . Click here for full text. Abstract Justice Kriewaldt was the only judge of the Northern Territory Supreme Court from 1951 until his death in 1960. The judge’s work has been described as standing as ‘a bench-mark of fairness and justice in the administration of justice to Aboriginals’, yet he supported the assimilation policy of the 1950s. In hindsight it is possible to conclude that during his nine-year period on the bench Kriewaldt was concerned with how the application of the law could support the assimilation policy. His limited general writing, his judgements and the regular newspaper coverage of his decisions during the period give some indication of his understanding of the policy of assimilation and his view of the role of the law in the implementation of the policy. In spite of the continuing relevance of his judgements, to date there has been very little analysis of Kriewaldt’s understanding of assimilation. It is the way in which Kriewaldt interpreted the meaning of the policy of assimilation and how it should be supported through the application of the law that I propose to examine in this article. After providing a brief discussion of the policy of assimilation as background, this paper will proceed in three parts. In the first part Kriewaldt’s belief that the policy of assimilation was concerned with the uplift of Aboriginal people is examined. Part two explores how Kriewaldt interpreted and applied the law in order to support the policy. Finally, part three discusses Kriewaldt’s understanding of the ultimate aim of the policy, that it would result in a ‘single Australian community’.
* Footnotes omitted |
List of Scholarly Works