Aboriginal Customary Laws

The ALRC received terms of reference for this inquiry on 9 February 1977.

During the course of the inquiry, three Discussion Papers were produced:

• Aboriginal Customary Law — Recognition? (ALRC DP 17) in 1980;
• Aboriginal Customary Law — Marriage, Children and the Distribution of Property (ALRC DP 18) in 1982; and
• Aboriginal Customary Law — Criminal Law, Evidence and Procedure (ALRC DP 20) in 1984.

The focus of ALRC Report 31 (tabled 12 June 1986) was whether it would be desirable to apply, either in whole or in part, Aboriginal customary law to Aboriginal and Torres Strait Islander peoples—generally or in particular areas or to those living in tribal communities only. In addition, the report addressed whether in criminal cases existing courts should be able to apply Aboriginal customary laws to Indigenous peoples and whether Indigenous communities should have power to apply their customary laws in the punishment and rehabilitation of Aboriginal people.

The report outlined that, with very limited exceptions, Aboriginal customary laws have never been recognised by general Australian law. It reported that customary laws were a significant influence in the lives of many Aboriginal people. More importantly however, the report recognised that there was no one ‘authentic version’ of customary law. Customary law was and continued to be a series of dynamic and changing systems applying to different groups of Indigenous Australians. The report highlighted that Aboriginal people must have the final say in the negotiation and consultation surrounding the recognition of customary law.

Key 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:

• legitimacy of children;
• adoption, fostering and child welfare laws;
• distribution of property on death;
• accident compensation, including workers compensation, compensation on death, criminal injuries compensation and repatriation benefits;
• statutory superannuation schemes and private superannuation schemes established in the future for the purposes of the Social Security Act 1947 (Cth);
• spousal compellability and marital communications in the law of evidence;
• unlawful carnal knowledge charges, provided both consent and traditional marriage are proved; and
• 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.

Implementation

After initial consideration of the recommendations of ALRC Report 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 Report 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 Aboriginals 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 Aboriginal & Torres Strait Islander peoples 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 Report 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.

Continuing issues

In 2006, the Law Reform Commission of Western Australia completed a review into the recognition of Aboriginal law and culture in Western Australia.