Aborigine Justice Is Hailed as Tribal Elders Order Floggings, Even Exile : Australia: Judges may take extent of traditional punishments into account when deciding whether to impose more jail time or fines. Whipping and spearing in the thigh are among the options.

Flogging, spearing in the thigh and forced exile may seem like barbaric punishments, but they work for Australia’s aborigines and even have the blessing of white judges.

White authorities frustrated by rising crime are allowing aboriginal leaders to administer their own justice, sometimes without trial.

Three months ago, tribal elders in a small town near Darwin in the Northern Territory decided car theft had gone far enough. They persuaded police to turn over six aborigines, ages 15 to 25, for a dose of traditional justice.

That night, on Main Street, the elders flogged the young men with rubber hoses.

“One of the young fellows couldn’t walk for three days,” said Kevin Kitchener, a lawyer, who reported the incident but would not name the town.

Only one car has been stolen in the town since, he said.

“They know that if they get into trouble again, the same thing will happen, but with women wielding the rubber hoses, which will give them an even greater sense of shame,” said Kitchener, who works for the North Australian Aboriginal Legal Aid Service. “Maybe we should go back to the old traditional ways. They seem to work.”

The beatings occurred shortly before the flogging May 5 in Singapore of American teen-ager Michael Fay, who was convicted of vandalism. The Fay case provoked protests from abroad and pleas for clemency by President Clinton.

No trial was involved in the decision by the aboriginal elders, and the flogging incident in the northern Australian town got little attention.

Mick Dodson, the government’s commissioner of social justice for aborigines, believes traditional punishments are a strong deterrent and questions whether they are any harsher than modern ones.

“We still have people confined to solitary confinement, white and black,” he said “You could argue that that’s cruel and unusual. What’s the difference between spearing and hanging or electrocution? What makes one cruel and the other not?

“Locking people up doesn’t work; it just hones their criminal skills.”

Australia’s legal system formally recognizes traditional methods of justice. Judges may take traditional punishments into account when deciding whether to order jail time or fines.

Residents of the Northern Territory say floggings and spearings are seldom reported, but are more common than many outsiders think.

David Moore, deputy police commissioner of the Northern Territory, said he knows of several flogging cases. Frustration with the regular system has led to a resurgence of traditional justice, he said.

Police have encouraged nonviolent forms of traditional justice, such as forcing offenders to do community service, with some success, Moore said.

Another nonviolent alternative is exile--up to 10 years in a distant city for a killing. Connections with family and tribe are so strong that this is considered a severe punishment.

Sgt. Barry Lehmann of the Kalgoorlie police in Western Australia said spearing is common practice in his district.

A man who killed his brother and was convicted of manslaughter “had been speared a number of times in the thighs,” he said. “I asked him, ‘Is that the end of the matter?’ And he said, ‘No. I get speared again when I get out of jail.’ ”

“I asked him when this stops,” Lehmann said, “and he said, ‘When my father says to stop it.’ His father is an elder, and they make the decision.”

In 1984, an aborigine was convicted of manslaughter in the Northern Territory for inadvertently killing a man when administering the spearing punishment. Judge James Muirhead let him go free, noting that he had been obligated to administer the punishment and the killing was accidental.

Dr. P. T. Burke, who served in the outback with the Royal Flying Doctors service in the late 1980s, estimates that one in 20 spearings will cause fatal bleeding.

In March, Chief Justice Brian Martin of the Northern Territory Supreme Court ruled that a man convicted of manslaughter could be speared in the thigh by relatives of the victim, a form of justice called “payback.”

He imposed no other punishment, letting Wilson Jagamara Walker, an aborigine from Alice Springs, off with a three-year suspended sentence.

Martin also took the unprecedented step of ordering police officers to witness the spearing so they could verify that the sentence had been carried out. They protested on grounds that, if Walker died, they could be charged as accessories to a homicide.

In May, the Northern Territory police announced that the dead man’s family had declined to carry out the “payback.” Martin has not said whether he will review the suspended sentence in light of the family’s decision.