April 7, 1999


A man accused of sexual assault in a Central Australian community has been released on unconditional bail, ultimately because the Alice Springs Magistrate’s Court did not have the services of an interpreter able to translate any bail conditions.Families and friends of victims argue that unconditional bail fails to send a message to the community that sexual assault is a serious offence and will have serious consequences for perpetrators.However, such a message is outside of what the court must consider under the Bail Act. A message to the community is rather part of the purpose of decisions made under the Sentencing Act, after an accused is found guilty of an offence. The transcript of the hearing of the defendant's application for bail reveals that a number of factors led to the decision not to place conditions on bail.The defendant appeared to have little knowledge of English.At the start of the proceedings counsel for the defence referred to "extreme difficulty in communicating with my client."Counsel asked that the court "assist in ordering an interpreter".The magistrate, Warren Donald, asked: "What access do we have to interpreters? Where do we get them from? From IAD?"Nevertheless, the proceedings continued without the presence of an interpreter.Counsel made a bail application that the defendant return to his community. This was opposed by the police prosecutor.The principal ground for objection cannot be reported here because it would reveal information concerning the identity of the victim. The Alice Springs News understands that in a sexual assault case the victim's name and any identifying details can only be disclosed if the court has so ruled. In other cases before an open court, such details are suppressed only if the court so rules.However, the prosecutor's objection had regard to both protection of the victim and the safety of the defendant.The magistrate went on to ask the prosecutor: "Do you say he is likely to commit further offences?"The prosecutor replied : "We cannot allege that, Your Worship ... There is no indication in his prior history, Your Worship, that he would reoffend."Magistrate: "Do you have any concerns that he would interfere with witnesses?"The prosecutor suggested that this was "most probable" as the primary witnesses were members of the accused's family.The magistrate dismissed this, saying: "Everyone has relatives ... if that were the basis for refusing bail then anyone who [had relatives who] had any possible involvement in proving the case would never get bail, would they?"The magistrate went on to ask if the victim had "expressed concern for herself if the defendant were to return to [his community]?"The prosecutor could not say that the victim had expressed such a concern, but said nonetheless that the alleged assault had "had a profound effect on her".Magistrate: "But she hasn't asked the prosecution to oppose bail on the basis of her fear?"Prosecutor: "She has not."The alleged victim was not present in the court, nor were her legal representatives.The News asked Superintendent Kate Vanderlaan, of the Criminal Investigation Branch, if victims and their legal representatives are normally involved in the hearing of bail applications.Supt Vanderlaan said that there is not usually time to involve the victim at this stage, as the application is generally heard within 24 hours of the arrest.PERSUASIVESupt Vanderlaan also said that the police prosecutors "would hope" that they would be sufficiently persuasive in giving reasons for refusing bail or imposing conditions.In court, the magistrate asked if the defendant would be "at risk of injury" if he went back to the community?The prosecutor had "no information regarding that".The magistrate indicated that the defendant "should probably be granted bail".The prosecutor then urged: "If Your Worship is minded to grant the defendant bail ... I must ask for some kind of condition to that bail to prevent the defendant from approaching the victim. "I feel that if I did not ask, or at least put that to Your Worship, then I would be failing my duty to the victim."The magistrate replied: "I think it's probably appropriate."Counsel for the defence then returned to the question of communication with the defendant: "The problem with the imposition of such a bail condition is that I couldn't guarantee that it would be understood by the defendant if it is not conveyed to him in [his language]. "What we could do is perhaps phone someone ... who speaks [his language]."This suggestion was not taken up by the magistrate, who said: "I suppose, going back to the law – and that's always the retreat when things are uncertain, I suppose – but going back to the provisions of the Bail Act, I aim to impose the least onerous conditions that I am able and the comments that I have made in relation to the defendant attending at [his community] seem to apply I suppose to a request not to approach the victim. "You have no information on which to base that request either."Counsel for the defence then asked that the condition "not be imposed at this stage".The prosecutor said nothing. The magistrate summarised the arguments for and against conditions being imposed, including a reference to the victim's apparent disposition, and concluded: "I see no reason as to why bail should be refused and indeed why any conditions should be placed upon it."SERIOUSNESSUnder the Bail Act, the "nature and seriousness" of the offence is but one factor that the court must have regard to in considering a bail application. (In the case discussed above the court heard from the police prosecutor on details of the circumstances of the alleged offence, and about the kind of evidence that the prosecution would later produce in court.)Sergeant David Price, of Police Prosecutions, told the News that "the most important criteria" concern the probability of the person appearing in court at subsequent hearings."Let's say you were charged with an offence, how would we prove that you wouldn't appear?" asked Sgt Price.The Bail Act, Section 24, requires the court to have regard to "the person's background and community ties, as indicated by the history and details of his residence, employment and family situations, and, if known, his prior criminal record", and any previous failure to appear in court or not comply with a bail undertaking. Section 24 is otherwise concerned with considerations of the defendant's right to liberty, for instance "to prepare for his appearance in court". Consideration of this right must be balanced against consideration of the circumstances of the offence (including nature and seriousness), the strength of the evidence against the defendant and the severity of the probable penalty, and the likelihood of the defendant committing an offence while on bail.Concern for the protection of victims is given greater weight by the Act if they are children or juveniles, or else a person for whose benefit an order under the Domestic Violence Act has been made.


The Northern Territory Government has the distinction of being the sole Australian government to lodge a blanket objection to all proposed listings of Territory sites on the Register of the National Estate.There were 43 sites placed on the interim national list by the Australian Heritage Commission (AHC) in 1996.According to Robert Bruce, Director of the Register of the National Estate, the Territory Government submitted an objection in principle to all sites "on the grounds that, inter alia, registration was of little benefit and was out of step with the proposals to rationalise heritage listings between the Commonwealth and the States and Territories".Mr Bruce says: "Although the AHC has received objections from State and Territory Governments on many occasions, this was the only time a blanket objection to all listings in a particular State or Territory notice had been received."The details of the listings and objections are not made public but Mr Bruce says the listings included houses, commercial and government buildings, military structures, historic mining sites and Aboriginal sites.Mr Bruce also says that the NT Government made specific objections to some listings on the grounds that some sites were already on the NT Heritage Register, some were under assessment for registration, some had been refused registration, some needed clarification on identification and some required consultation with owners and lessees.The Alice Springs News understands that some listings were objected to by private owners as well.The AHC recently finalised its decisions on the last group of objections and informed the NT Government of its decisions.Mr Bruce says: "Entry of a place in the Register of the National Estate is a public recognition of its heritage values, but it has direct legal consequences in relation to protection only in the case of Commonwealth Ministers and bodies."These are required to avoid damaging a place by any decision or action unless there is no feasible and prudent alternative."They are also required to inform the Commission of proposed actions that might affect a place in the Register and consider the Commission's advice."This contrasts to the protection offered to heritage sites by the NT legislation which allows the Minister sole power of approval to "damage, destroy, demolish, desecrate or alter the heritage object". Minister Tim Baldwin did not respond to a request from the News for information and comment.


While cultural maintenance is the primary focus of many of Central Australia's Aboriginal art centres, their work underpins a booming industry from which, some argue, they are not getting their fair share.KIERAN FINNANE continues her report on some of the problems of the Aboriginal art industry, and some of the proposed solutions. (See Part One in last week's issue.)
There are ways to build on the often brilliant but always labour intensive fine art production of the Aboriginal art centres, deals which should ultimately make possible the goals of self-sufficiency for the centres and a living wage for the artists.The umbrella organisation Desart , which offers advocacy and referral support to some 27 art centres scattered across borders over an area as large as Victoria, has already explored some of these ideas. Desart has registered trademarks in a number of classes, and has brokered several licensing deals.Jukurrpa Artists, for instance, operating out of premises on Stott Terrace in Alice Springs, have worked with Desart to sign a joint venture with a publishing company to produce books of 25 postcards, and a series of bookmarks.The venture is likely to extend in the future to the production of a book of days, calendars and diaries.The publishing company and the art centre are sharing expenses and profits in equal shares, with the royalties to artists accounted for as expenses.The Alice Springs News has previously reported on the licensing of designs for watchfaces by some of the Centre's most prominent artists, and on the development of a clothing range using licensed designs from four art centres, including the Santa Teresa-based Keringke Arts.Sydney-based art dealer and chair of the newly formed Australian Indigenous Art Trade Association (Art Trade), Adrian Newstead sees an opportunity for additional income "going begging" in the secondary (or resale) market:"Lots of items come up on the secondary market undocumented. A non-profit organisation could be set up under heritage legislation that charges for authenticating works on the secondary market.SECONDARY MARKET"It would clean up the secondary market, sorting out the problems about whether something is ‘painted by' or ‘attributed to'. "It would benefit the seller, adding value to the product, and it would benefit the buyer because they'd have certification that would remain with the item."This would be done for, let's say, a charge of $100. Now there are 600 lots in a Sotheby's auction, that's $60,000 from one auction that could be going, minus costs, into an Aboriginal Heritage Benefits Fund. Perhaps you would have to charge more, but in any case the fund, with prominent Aboriginal people on the board, could be used for community cultural development, or supporting old artists."I believe such a scheme could generate over half a million dollars from the secondary market alone," says Mr Newstead.Proper licensing and documentation both point to another issue vital to the protection of the artists' position in the marketplace: authenticity.The introduction of a national label of authenticity is promoted by the National Indigenous Arts Advocacy Association (NIAAA), with support from ATSIC and the ATSI Arts Board of the Australia Council.NIAAA's Chris Bonney describes the presence of unauthentic products in the marketplace as "prolific", and copyright infringements and appropriation of intellectual property as "increasing".While a national label would help prevent these "rip offs", it would also be an important "marketing and empowering" tool, says Mr Bonney.Mr Newstead says his association basically "supports and applauds" what NIAAA is doing, but "we think they are slightly on the wrong track".


The NT Police has sharply curtailed publication in the monthly Neighbourhood Watch newsletters of details about crime in Alice Springs.This follows an attack on the Government by Opposition MLA Peter Toyne over mandatory sentencing laws, claiming that the published statistics were showing no decrease in property crimes (Alice News, March 10).The Neighbourhood Watch newsletter for February still lists all crimes in the nine areas of Alice Springs, during December and January.The comprehensive tables give the date and type of each offence, the property involved, the street, whether or not force was used, and the value of the property stolen as well as the value of the damage caused.However, the March newsletter reveals only the total value of goods stolen and damage caused for each area.Police Superintendent Michael Boldiston says the police service decided to change the manner of reporting in order to bring it into line with Darwin and other towns in the NT.He says the new method is an "accurate statistical guide of offences in the areas".None of the Neighbourhood Watch area coordinators the Alice Springs News spoke to said they had been consulted about the change to the method of reporting.Most would not go on the record, but there was a clear consensus that the style of the report is a matter for the police, and should be left to it.Bradshaw area coordinator Philip Gardiner said: "It's up to the police, it's none of my business."I just chair the meetings."The new style of reporting appears to be raising more questions than it answers: the bar graph for the Golf Course area, for example, shows a decrease in the value of property stolen from $7396 in January to $751 in February. At the same time an increase is shown in the value of damage from $120 to $21,500 – and no further information is given.Supt Boldiston says variations can occur due to clear-ups and the fluctuation in the incidence of crimes.Mr Toyne says: "I believe it is very much a matter for Neighbourhood Watch to determine what information is provided to residents."Providing details of crime must be the starting point in deciding appropriate action."This has been done in Alice Springs up to now."The removal of the statistics is a step backwards. A key function of Neighbourhood Watch is to promote informed debate and to propose action, including on mandatory sentencing."Not only should Neighbourhood Watch get the full range of police statistics, but also sentencing and correctional services details," says Mr Toyne.


John Pockley was an ophthalmologist who made a memorable journey into Central Australia in 1933, and again in 1976. His writings about his experience, and in particular his observations and photographs of his encounters with Aboriginal people and their culture, form the basis for the website known as The Flight of Ducks and created by his son, Simon Pockley. The site has been applauded in some quarters for its achievements in the new craft of on-line publishing, and criticised in others over issues of cultural appropriation and its use of material that in all likelihood was gained without the informed consent of the Aborigines it depicts.In PART FOUR of a report by a SPECIAL CORRESPONDENT, we join John Pockley in 1977 as he fulfils a promise made to himself in the course of his earlier journey, to one day reach the top of Mt Olga. In the preceding eight years he had submitted himself to "the self-disciplined slavery" of learning Homeric Greek. He now added to his challenge the intention of declaiming the first four books of Homer's Iliad from the peak.
Warned against the climb by a park ranger, Pockley spends seven terrified hours climbing the smooth-faced dome. When he reaches the top, overcome with fear, he barely manages the first 20 lines of the Iliad and a mere glimpse in the direction of Ayers Rock.Simon Pockley now believes his father could not possibly have climbed Mt Peculiar, the hill from which he claims he thought he saw Mount Olga in 1933. There was not the time, he says, and he found no mention of the climb in the original journals.He also says his father mellowed after the 1977 journey and his subsequent retirement. The third generation ophthalmologist then succumbed to the irony of his other patrilineal inheritance - hereditary blindness - and spent most of his last years singing and reciting verses from his beloved Homer. A recording of one of his efforts is included on The Flight of Ducks. Simon Pockley describes The Flight of Ducks as "part history, part data-base, part novel, part research diary, part news-group, part museum, part poem and part shed." Flying duck icons – symbolising "imaginative flight" – transport the visitor back and forwards not only across time and place, but from the narrative to the poetic, the photographic to the theoretical. It's a new way of doing history.A major essay on the site - Killing The Duck To Keep The Quack - is devoted to the quandaries posed to archivists and libraries by the explosion in digital information that has accompanied the computer age.Pockley argues the safest place for such material is on the net, where it is immune from the technological obsolescence facing software systems forever being updated. But unlike traditional archives which limit public access to delicate materials, he says, the best guarantee of survival on the net is regular access.The 1933 journals are his pilot project, springing from his own quandaries over his father's materials. "Because they illustrated an important story and because they may be the only existing record of some of these people I felt a responsibility to send them into the future," writes Pockley.But the amorphous, unboxed nature of The Flight of Ducks - which consists of more than 700 "screens" - determines that it is many things to many people. One e-mail correspondent, for example, announces he or she is working on a history of facial hair for children called Weird Beards and asks Pockley if he can help.Aboriginal film-maker Wal Saunders has quite another perspective. "This site has nothing to do with Aborigines," he says. "It's about the digitalisation of records normally kept in vaults. I don't see why he's used Aboriginal photographs to demonstrate that. Why not cars?"Film-maker and archivist Mike Leigh, a friend and supporter of Saunders, sees The Flight of Ducks primarily as the expression of "a romantic notion in which Pockley is trying to position himself in relation to his father." He concedes: "It's a unique site, perhaps the first of many to come."But Leigh and Saunders agree that Pockley has used his father's photographs to boost the public appeal of The Flight of Ducks."I and a lot of other Aboriginal people are sick of having our images used as the theatrical paint in someone else's stage play," says Saunders."Considering the net is open for exploitation, it may be that some of these images are used to sell condoms or Budweiser beer in America. There's no protection."Leigh, who's been involved in years of discussion about proposed moral copyright laws, backs Saunders' view that pre-1967 photos of Aborigines should be returned to the status of "family materials"."I think it's unlikely the people in the photos gave their permission," says Leigh."Part of the problem with The Flight of Ducks is that he doesn't let you know about the considerable wealth of material available from the same period."If you look at the notebooks of people like Norman Tindale or E. O. Stocker you can see in many cases Aboriginal people were pushed into photographs by missionaries or managers."But, says Leigh, there were other forms of more subtle coercion - the food and the novelty of the white camps, for example. "I don't believe Aboriginal people fronted up to be photographed. In most cases they wouldn't have understood the technology anyway."
The address of The Flight of Ducks is
See Parts One, Two, Three of our report in Alice News issues of March 17, 24 and 31.

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