A Provisional Report

217. Oversight, Implementation and the Future. Part VIII of this Report deals with the implementation of the Commission’s proposals. Some of the recommendations will require legislative implementation, while others will require the expenditure of resources or administrative changes. But in all cases the process of implementation will require consultation with Aboriginal people affected, and their organisations. The Commission has already made it clear that its recommendations are presented as advice from an Australian Government instrumentality to the Government and Parliament of Australia. This advice in no way commits Aboriginal people. The Commission has been cautious in making judgements about Aboriginal opinion, although these have sometimes been necessary in the course of arriving at conclusions.[91] With the completion and tabling of the Report it becomes a matter for the Government to determine which agencies and organisations should speak for the Aboriginal people in this context. It is for the Government to take steps to satisfy itself that any recommendations are supported by the Aboriginal people who will be affected by them. Proposals to this effect will be made in Part VIII of this Report.[92]

218. The Need for Evaluation and Review. A second point is equally important. All this Report can do is to recommend what the Commission believes to be appropriate and workable proposals at the present time. This Report is not presented — and should not be regarded — as the final and authoritative word on recognition of Aboriginal customary laws. It is overwhelmingly likely that in the future some further examination of the question will be required. Individual issues will continue to arise, and will need to be dealt with on their merits. Given appropriate consultation and access to information, the Commission believes this can be an effective way of proceeding. Indeed, it is not merely inevitable but the right approach to the wide range of problems Aboriginal people face with the legal system. Across the spectrum of Aboriginal affairs such an approach is likely to be more ‘fruitful’ than any ‘more ambitious strategy of devising a national settlement’ or of ‘attempting to resolve all problems once and for all’.[93] In a similar way the Aboriginal Land Commissioner, Justice Woodward, saw the aim of the recognition of land rights as ‘to find a just solution for our time and leave future generations to do the same’.[94] He recommended that:

Any scheme for recognition of Aboriginal rights to land must be sufficiently flexible to allow for changing ideas and changing needs amongst Aboriginal people over a period of years. This is so for a number of reasons. Surrounding circumstances may change — for example, local employment opportunities: or the needs and aspirations of a community may alter as the result of increasing contacts with the outside world. Further, certain widely held expectations about, for example, the ease of reaching a consensus on certain matters, may prove false. For all these reasons, future generations should not be committed by this generation’s ideas any more than is necessary. A step-by-step approach which allows for Aboriginal planning over time is much to be preferred. A final ‘settlement’ would mean the surrendering of certain claims in return for the recognition of others. This type of agreement cannot be said to have worked well in North America. It is particularly inappropriate in Australia because of the spiritual relationship between Aborigines and their land.[95]

The same approach should be adopted in this Reference. The problems cannot be resolved through any single program of legislative or administrative reform. Nor can the resolution of these issues take place without adequate consultation with and the agreement of Aboriginal people affected.

219. A ‘Sunset Clause’? This general approach does not mean that legislation for the recognition of Aboriginal customary laws should contain an express termination or ‘sunset’ clause. Such a clause might be appropriate with certain special measures of ‘affirmative action’, but this Reference is not concerned with issues of this kind.[96] Review of the operation of such legislation is not dependent upon such a clause. The principal difficulty with such a clause is the apparent assumption that, at some fixed time in the (comparatively near) future, Aboriginal customary laws will cease to exist in recognisable form, or will cease to be worthy of recognition. Traditionally oriented Aborigines would no doubt regard such an assumption as insulting. In any event, as has been pointed out already, the Commission has no material before it which would enable it to make any such prediction or assessment.[97] Careful drafting of legislation can ensure that Aboriginal customary laws can continue to be recognised where (and only where) it is relevant to the case in hand.

220. Structure of the Report. Consistent with the Commission’s approach outlined in this Chapter, the remaining Parts of this Report discuss the various areas in which it can be argued that the general law should recognise Aboriginal customary laws. These include questions of marriage, custody and adoption of children, the distribution of property, the criminal law, sentencing, evidence and procedure and proof of customary laws, and traditional hunting, fishing and foraging rights. The various ways in which Aboriginal communities may be empowered to deal with law and order questions — the second of the two sub-questions contained in the Reference — are also dealt with, in Part VI. In Part VIII of the Report, attention is given to constitutional and administrative questions, consultation with respect to and implementation of the Commission’s proposals, and the further review of the issues raised by the Terms of Reference.

[91]See para 19-20.

[92]See esp ch 39.

[93]J Long, Commissioner for Community Relations, Human Rights No 6 (Canberra, October/November 1983) 7.

[94]Aboriginal Land Rights Commission, Second Report, AGPS, Canberra, 1974, para 52.

[95]id, para 50-1.

[96]There may of course be other reasons for sunset clauses, eg in legislation of a temporary character enacted pending some longer term solution. See eg Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 (Cth).

[97]See para 122.