Equality before the Law
By the 1930s, it was clear that Aboriginal minorities were not dying out, nor were they being absorbed into the majority community. This realization heralded a shift in policy approach from protection to assimilation that occurred in both Canada and Australia at this time (Armitage, 1995, p. 190). From the late 1930s until the early 1960s, the policy of assimilation was at its peak, mandated in Australia by the Commonwealth government in an intervention that has been described as ‘a civilising offensive’ (van Krieken, 1999). The new policy sought to assist Aboriginal people to become citizens in the modern state. This chapter explores how judges, police and patrol officers interpreted and implemented the criminal law in the context of the assimilation policy. An influential presence in this story was Justice Martin Kriewaldt, the sole judge of the Northern Territory Supreme Court from 1951–1960. While Kriewaldt emphasized the jurisdiction of the criminal law over inter se crime, at the same time he equally attempted to mitigate the impact of the criminal law in recognition of Aboriginal particularity. He sought to do so through creative interpretation of legal principles relating to provocation, criminal responsibility, sentencing and Aboriginal testimony. Our evidence also suggests that during this period in the Northern Territory patrol officers regularly determined not to assist in the criminal prosecution of Aboriginal people where they perceived that criminal offences were committed in the context of carrying out customary obligations.
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