209. Adjusting the General Law to Accommodate Aboriginal Customary Laws. The complexity of the question of ‘recognition’, when approached in a categorical way as a single issue, may be one reason for the reaction expressed to the Commission that problems of recognition are ‘too overwhelmingly difficult’,[54] that ‘the framers of the reference expected answers when we are all unsure of the question’.[55] While the difficulties and uncertainties are not avoided by approaching the Reference in a functional way, issue by issue, they are made clearer and more manageable. A functional approach best accords with other important principles. It allows Aboriginal people to maintain control over their customary laws. It involves minimum interference with the way Aborigines choose to live their lives, and it leaves the way open for further change and adjustment when necessary. It also reduces the problems of translation, which are particularly acute given the conceptual differences that exist between the general law and Aboriginal customary laws. It enables use to be made of informal methods of adjustment and accommodation, while at the same time allowing for specific incorporation where this is appropriate. Problems of definition of customary laws and practices are for most part reduced to more manageable problems of evidence in particular cases. The differing experiences of Aborigines in different areas of Australia can thus be catered for. By contrast, no form of categorical recognition could be expected to deal with the wide range of legal and social questions raised by the Reference. The inherent inflexibility of such forms of recognition would tend to prevent the most just and appropriate solution being found for each case. Moreover, categorical forms of recognition emphasise, rather than minimising, the difficulties inherent in recognition. These include:

  • the difficulties in, and the inappropriateness of, embarking on a search for any one all-purpose definition of ‘customary laws and practices’;[56]

  • the ambiguity of ‘recognition’ itself: to propose ‘recognition’ of Aboriginal customary laws is to begin, not to conclude, the inquiry;[57]

  • the need to secure to all Aborigines basic human rights, including the right to participate in the life of the general Australian community;[58]

  • the difficulties inevitably presented by the transitions which Aboriginal communities are experiencing and the long history of externally-caused disruptions;[59]

  • the need to avoid, as far as possible, setting up separate, possibly conflicting, systems with resulting inefficiencies and inequities.[60]

However, functional forms of recognition have been criticised[61] on the ground that they do not involve any genuine recognition. The general legal system is in effect dictating the extent to which it is prepared to accommodate Aboriginal customary laws, rather than allowing for full recognition. In one sense this is a criticism that could be made of any form of recognition within the framework of the general law. The Commission’s rejection of categorical forms of recognition results not from a reluctant or grudging acknowledgement of Aboriginal customary laws, but in response to the genuine difficulties involved, not the least of which is the danger of loss of control over Aboriginal customary laws, to the detriment of Aboriginal people.[62] Consistently with this approach, Parts III-VII of this Report will examine the various areas in which recognition may be called for, and the ways in which this can best be achieved.

[54]MS Bain, Submission 58 (18 February 1978); WEH Stanner, Submission 6 (20 February 1977).

[55]TI Pauling SM, Submission 27 (June 1977) 6. Another correspondent added: ‘The right questions cannot be answered, we have to learn to live with them’. P Sack, Submission 110 (12 December 1978).

[56]See para 98-101.

[57] See para 191-208.

[58] See para 184-7, 193.

[59]See para 29-36, 84.

[60]See para 125, 196, 197.

[61]N Rees, ‘What do we Expect?’ (1983) 8 ALB 10.

[62]To similar effect, see eg Office of the Commissioner for Community Relations, (L Lippmann) Submission 13 (12 May 1977); JR Huelin, WA Aboriginal Legal Service, Submission 120 (7 March 1979); H Marshall, British Institute of International and Comparative Law, Submission 270 (5 May 1981). Two submissions from the mining industry supported some form of this functional approach, while rejecting ‘recognition’ generally: see Australian Mining Industry Council (GP Phillips), Submission 15 (17 May 1977) 2 (no ‘separate laws’ for Aborigines, but ‘in dealing with Aboriginals [under the general law] special consideration should be given to Aboriginal, customary law where it is applicable to Aboriginals living in tribal circumstances’); Energy Resources of Australia (BG Fisk), Submission 267 (4 May 1981) 3-4 (‘This Company is opposed to the recognition of Aboriginal Customary Laws within the Australian Legal System’, but ‘There are some specific areas where Aboriginal Customary Law for Traditional Aborigines could be recognised provided there would be no detriment to the operation of the Australian Law’, instancing name tabus, tribal marriage, dying declarations and community justice schemes).