Main recommendations
Criminal law
A partial customary law defence, similar to diminished responsibility, should be introduced that would reduce a charge of murder to manslaughter in those cases where an accused acted in the well-founded belief that the customary laws of his or her Indigenous community required the act constituting the offence.
Aboriginal customary laws and traditions should be taken into account where relevant in determining criminal intent and in establishing whether a defence (for example, provocation or duress) to a criminal charge is made out.
Aboriginal customary laws should be taken into account in the exercise of sentencing discretion.
An Aboriginal defendant should be able to give unsworn evidence unless the court finds that he or she will not be disadvantaged by giving sworn evidence.
Courts should have specific powers to hear evidence in private, to exclude certain persons from the court or to take other steps to protect secret information about Aboriginal customary laws where this is necessary.
Criminal investigation
More sensitive policing practices are required in Aboriginal communities.
Special rules are required to protect Indigenous suspects under police interrogation and to help ensure the reliability and voluntariness of any admission or confession. Admissions or confessions obtained in contravention of these rules would not be admissible unless a court was satisfied that, in the particular circumstances, the suspect understood the caution, understood the nature of the questions and did not answer merely out of deference to authority or under the influence of suggestion.
Traditional marriages
Traditional Aboriginal marriages should not be generally recognised, but instead should be recognised for certain purposes, including:
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legitimacy of children;
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adoption, fostering and child welfare laws;
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distribution of property on death;
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accident compensation, including workers compensation, compensation on death, criminal injuries compensation and repatriation benefits;
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statutory superannuation schemes and private superannuation schemes established in the future for the purposes of the Social Security Act 1947 (Cth);
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spousal compellability and marital communications in the law of evidence;
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unlawful carnal knowledge charges, provided both consent and traditional marriage are proved; and
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the spouse rebate under taxation legislation.
Children
An Aboriginal child placement principle should be legislatively endorsed. When decisions affecting the care or custody of an Aboriginal child are made, the child placement principle requires that preference be given to placing the child with a parent, a member of the extended family, or a community member who, under the customary laws of that community, has responsibility for the child.
Indigenous courts
The ALRC did not recommend a general scheme of Indigenous courts, but developed criteria to apply to any local justice systems in Aboriginal communities.
Hunting and fishing
The report set out precise guidelines to ensure traditional hunting and fishing interests are accorded appropriate priority under conservation legislation and under legislation relating to the commercial regulation of fisheries. It recommended that Aboriginal people have access to non-Aboriginal land for the purposes of traditional hunting.
Recognition
As far as possible, Aboriginal customary laws should be recognised by existing judicial and administrative authorities, avoiding the creation of new and separate legal structures, unless the need for these is clearly demonstrated.
The recognition of Aboriginal customary laws should be carried out by means of federal legislation applicable in all States and Territories, relying on the full range of the Commonwealth's constitutional powers.
Government and Indigenous groups should work together to decide on the methods by which Indigenous customary laws are recognised.