By Alan Lucas, SY Soleares

The concept of granting our indigenous population the right to pursue their own justice system has a lot of merit, but it carries with it the thorny question of tribal rights versus international human rights, the division of a nation's legal system and the possibility of ethnic groups demanding the same consideration related to their own background. It also ignores those rare but real moments in Australia's history when Aborigines voluntarily joined white settlements just to escape their own more brutal justice system.

For all that, it is hard to deny the superiority of native justice in metering out punishment suited to the crime, as I believe the following - supposedly true - incident proves. The story has come down through Torres Strait islander lore with all that that implies regarding its exact time and detail, but having heard it under the most convincing circumstances, I have no reason for doubt (see Footnote).

When the event took place, all Torres Strait islanders were under the umbrella of the Queensland Department of Native Affairs (DNA), a name destined to be refined many times over subsequent decades by the recognition that islanders and mainland aborigines were different races, plus the need to erase the word 'native' during rising political-correctness. It was later changed to Department of Aboriginal and Islander Affairs with the word 'Affairs' soon after being changed to 'Advancement'.

Also changed was the department's well intentioned but dictatorial attitude that led to the development of regional indigenous councils. These councils were overseen by a department manager and staff who encouraged them to make their own decisions, which, ironically, produced many incidents of media and civil rights groups railing against 'racist' decisions that came directly - not from white bureaucrats, but from indigenous councils. Back in 1961, however, when I heard the following native justice story, the emphasis was very much on white control, even to the crewing of all pearl and trochus shell luggers.

To illustrate how demeaning this policy could be, imagine this: You are an experienced lugger skipper-diver who has just returned to Thursday Island from months at sea to unload your shell. Then, having refuelled and victualled ready for sea again, crew requirements must be revised and possible changes made - not by you, but by a young white clerk, fresh from Brisbane, who knows nothing about islanders or the shell industry or the sea, but everything about administration.

The system commonly ignored the innate organisational skills of the skippers and the conspicuous fact that they, more than anyone else, knew good divers from bad. Importantly, they also knew who were best at co-existing peacefully on a fifty-foot lugger for months at a time. Yet despite their body of knowledge these men had little say in crew choice and, as a result, occasionally had unwilling and unproductive crewmembers foisted on them by an all-white administration. Even serious troublemakers had to be taken at times, as happened in this story.

The person in question was a known layabout who had proven troublesome on every lugger he had shipped aboard. Despite this, he was directed by the DNA to join yet another lugger whose skipper knew his reputation but was obliged to accept him. This blighted ship then put to sea to dive trochus along the reefs down to Cairns during which time the new recruit succeeded in killing a diver when he murderously stopped the diesel-driven air pump. When working in very shallow water, such behaviour was not entirely unusual as divers skylarked amongst themselves, but in this case the diver was down deep where he wasted too much time trying to identify the problem before throwing the helmet and ascending. He didn't make it and died on deck.

The whole crew - and soon the whole pearling fleet, recognised this as a payback killing, but they also knew the evidence was too thin to expect satisfaction from the Westminster judicial system. They needed a punishment tailored to the crime. They needed native justice.

A plan was hatched involving the entire Torres Strait lugger fleet, the idea being to deny the killer any chance of being freed by white justice or enjoying a normal life on terra firma. He was condemned by a council of elders to remain at sea for four years, even to the extent of being transferred from one vessel to another before any port with its opportunity for escape was reached.

Although never physically abused, he lived in a perennially hostile environment and was worked hard on the most basic of food. When released, it is said he disappeared from Torres Strait and was never seen again, more than happy, no doubt, if he never saw another lugger.

How his disappearance was explained to the authorities was never clarified - or if it was, I have forgotten; but burying the dead on barrier reef islands was accepted practice in the absence of refrigeration and a handy morgue, so maybe they reported him as dying from the bends. Whatever his true fate, native justice worked in this case, as it possibly did in many other unheard of incidents.

Footnote:
I heard this story in the Torres Strait, sitting on the rail of a working lugger in 1961. She had just offloaded shell and had returned to anchor not far from my own vessel. The smell of trochus was overpowering and the cockroaches were unbelievable (even to a bachelor sailor). Sipping tea needed two hands: one to hold the mug, the other to cap it off between sips to prevent a crawling brown army of cockroaches overwhelming its contents within seconds.

The Torres Strait has set the scene for many extraordinary and often unrecorded stories that can only be accepted - or rejected - on their merit. I had no reason to doubt this one because it was told over tea, not grog, the latter being illegal until the late 1960s. I can also vouch for the department's involvement in crew choice, whether you were black, white or brindle, as I discovered ten years later when skippering a small cargo vessel for the same department. By then indigenous councils called most of the shots, but the obligation to present log books and discuss crew requirements at the end of every passage with an office clerk fresh from Brisbane, without any field experience, was still alive and well.