Implementation
After initial consideration of the recommendations of ALRC 31 in 1988, the Standing Committee of Attorneys-General (SCAG) agreed to make a number of recommendations and refer major policy considerations to the Australian Aboriginal Affairs Advisory Council (now Ministerial Council on Aboriginal and Torres Strait Islander Affairs). Between that time and mid-1994, no significant steps were taken towards implementation despite the report having been strongly supported by Indigenous organisations.
In 1992, however, the Commonwealth government supported recommendation 219 of the Royal Commission into Aboriginal Deaths in Custody, which required a report to be prepared on the progress in dealing with ALRC 31. In early 1995 the Office of Indigenous Affairs of the Department of Prime Minister and Cabinet published the report Aboriginal customary laws, a report on Commonwealth implementation of the recommendations of the Australian Law Reform Commission.
In that report, the government indicated that there had been partial implementation of some of the recommendations, notably those relating to criminal investigation procedures involving Aborigines or Torres Strait Islanders in Part 1C of the Crimes Act 1914 (Cth) and fishing, hunting and gathering rights through the provisions of the Native Title Act 1993 (Cth). The Commonwealth also established an interpreter program to train interpreters to assist Aborigines & Torres Strait Islanders in the criminal process.
The government report highlighted that some federal departments, such as the Department of Social Security, had implemented aspects of the recommendations through changes to their administrative processes. An overwhelming theme of the government's response however is that it perceives many of the recommendations made by the Commission as being more suitable for State and Territory implementation. This view was repeated by the federal Coalition government in 1996.
Other Commonwealth legislation that has been amended to introduce principles of customary law include the Evidence Act 1995 (Cth) in relation to interpreters and interrogation and the Safety and Rehabilitation and Compensation Act 1988 (Cth), which recognises customary marriages for the purposes of compensating employees' spouses under the Act.
The States and Territories have addressed some of the recommendations, in particular the child placement principle in relation to children in care; and the recognition of traditional Aboriginal marriages for limited purposes.
The common law, largely through the judgments of the High Court, has furthered the recognition of customary law in Australia. The decision of the High Court in Mabo represented a significant watershed in the development of the common law. It recognised the legal force of customary Indigenous rights to land where those rights continue to exist. The courts have been reluctant to confine the principle involved in Mabo and thus the common law has to a greater extent embraced the recognition of customary law. The High Court in The Wik Peoples v Queensland (1996) and in Yanner v Eaton (1999) further developed the principles of native title in relation to the common law and the Native Title Act 1993 (Cth).
At the Federal Centenary Convention, held in April 1997, participants resolved by clear majority that the Australian Constitution recognise the particular rights of Indigenous peoples and give appropriate recognition to their customary law. It was resolved that Indigenous customary law be recognised and taken into account within the rule of law. At the Australian Reconciliation Convention in May 1997 there was strong support among participants for the recognition and application of Aboriginal and Torres Strait Islander customary law and traditions within Australia's written statutes and common law, and in court procedures.
In February 1999, the Aboriginal and Torres Strait Islander Commission (ATSIC) submitted a report to the United Nations Committee on the Elimination of Racial Discrimination entitled Aboriginal and Torres Strait Islander Peoples and Australia's Obligations Under the Nations Convention on the Elimination of all Forms of Racial Discrimination. The report outlined the recommendations contained in ALRC 31 and the action taken in response to the recommendations, and commended the ALRC on its involvement in the matter of recognition of customary law in Australian law.