195. The Continued Application of the General Law. The general arguments outlined in this Part lead to the conclusion that any recognition of Aboriginal customary laws must occur against the background and within the framework of the general law. Indeed, the contrary has not really been argued before the Commission. As one submission put it:
We [the Aboriginal people] live in a white world so its laws should be there to protect us, as our world is most times far away.
The National Aboriginal Conference proposed the following resolution to the World Council of Indigenous People in 1981:
That the World Council of Indigenous People and its member organisations support the Aboriginal Australians in their efforts to have customary laws and cultural practices recognised by the Anglo-Australian legal system and adjunct institutions, and in their efforts to have their laws integrated into the white system.
Many submissions pointed out the need for Aborigines to have access to, and assistance from, the general law, including the civil law, and the correlative need for better understanding and participation by Aborigines involved in the general legal system. A submission from the President of the Council of the Peppimenarti Community was representative:
… in all cases, we want the OPTION to send an offender through the white man’s system of law.
D Vachon wrote in similar terms:
The Aboriginal people of the Western Desert have a perception of the social world where two laws operate. Many regard the role of Australian law as helping to protect communities and people from disruptive influence, thereby ensuring the continuance of their own beliefs and practices. In other words, those aspects of Australian law which can help provide social control are regarded as no threat to Customary law. It would appear that anangu have no interest in turning their backs on new technologies and ideas but consider these changes on the basis of their effect on their kin and cultural beliefs and practices.
Professor Stanner firmly identified the source of the problems with the criminal law in its insensitive and inappropriate administration:
In my opinion, if a remedy could be found for the shortfall or miscarriage of justice which now affects Aborigines, either because of their incomprehension of their situation when under charge, or because of the misprisal by our functionaries of Aboriginal viewpoints and motives and sense of responsibility, there would be little difficulty in the criminal law area. Actually, there is already a fair understanding and toleration of the way in which Australian criminal law operates, even though few if any Aborigines have more than a glimmering of the rationale, the phases and the functionaries, or of what precisely is happening at any time, or of what a person under charge can or should do in his own defence. There is probably not an Aboriginal person in Australia who does not appreciate that to kill, to assault, to steal, etc will lead inexorably to police action, possible arrest, court action and to one of two further consequences. It is my impression that amongst Aborigines I know well the certainty and relentlessness of the process of the criminal law are not resented. What is resented deeply is the arbitrariness, the use of violence, the impatience, and the boorish neglect of Aboriginal rules of privacy, decent conduct and respect for persons and authorities so often shown by the process of our criminal law.
196. Avoidance of Separate Formal Systems. The view that Aboriginal customary laws should be recognised within the framework of the general law, rather than through the creation of separate formal systems, was also strongly supported:
On the question of institutional arrangements, I fully agree with the general tenor of [ALRC DP 17] that existing courts should be made more accessible to, and more responsive towards, Aborigines: rather than that ‘neo-traditional’ agencies should be established or recognised. Very much could be achieved … by making magistrates more mobile, by giving them a greater grasp of traditional values and by giving them a general authority to recognise and apply Aboriginal customary law. Where traditional agencies are to be recognised, this must inevitably take place on an ad hoc basis, and depend on local conditions and demands.
As far as possible, Aboriginal customary laws should be recognized by existing judicial and administrative authorities, avoiding the creation of new and separate legal structures unless the need for these is clearly demonstrated.
197. Federal/State Constraints. The Commission’s Terms of Reference relate to some areas which are at present primarily or exclusively matters of State or Territory administrative responsibility. These include:
policing of Aboriginal communities:
the court system (both at Magistrates Court and Supreme Court level);
the child welfare and juvenile justice systems;
the general criminal law:
hunting, fishing and foraging rights on land, rivers etc.
Since 1967, the Commonwealth has had legislative power to enact ‘special laws’ for Aboriginal people, including laws dealing with these areas. The decision of the High Court in Commonwealth v Tasmania supports the view that the Commonwealth’s power to legislate for members of the Aboriginal race under s 51(26) of the Constitution is an extensive one. Even on the narrowest interpretation of the decision, any recommendations for ‘special laws’ that the Commission may wish to make would be within power, provided that there was no conflict with other constitutional provisions. More significant than questions of constitutional power are the administrative and political constraints imposed by the federal system. These will be referred to in later chapters of this Report and especially in Chapter 38. There can be practical difficulties in the Commonwealth enacting special legislation for Aborigines in an area occupied generally by State or Territory. legislation and administrative agencies. On the other hand there are obvious practical constraints on the setting up of special federal agencies in such areas based only on special legislation under section 51(26). These difficulties are real. But they should not obscure the basic issues presented by the Reference, which exist independently of the federal system with its legal and administrative complications. This Report therefore proceeds on the basis of asking what ought to be done, as if Australia had a unitary system of government. Only when general conclusions have been reached will the Report then examine the limitations presented by the federal structure as they affect the Commission’s conclusions. These limitations may mean that implementation of the Commission’s recommendations is more properly a matter for the States or the Northern Territory than for the Commonwealth (although Commonwealth assistance and encouragement may well be desirable). But that is clearly a different matter from the basic question: what ought to be done?
G Blitner, Submission 137 (3 July 1979) 8. Mr Blitner went on to emphasise the need for communication and negotiation on both sides and for measures such as recognition of traditional marriage.
National Aboriginal Conference, ‘The Australian Aboriginal Position, Paper on Indigenous Ideology and Philosophy’, Paper presented to the World Council of Indigenous Peoples, Third General Assembly, Canberra, May 1981, in RJ Moore, A Report on the Organisation of the 3rd General Assembly WCIP, Canberra, National Aboriginal Conference, 1981, 46-7.
D Hope, Submission 164 (30 April 1981). Similar views were expressed during the public hearings eg W Anbuma, Transcript of Public Hearings, Yirrkala (10 November 1981) 2829; WH Edwards, Transcript, Adelaide (17 March 1981) 31; A Tigan Transcript, One Arm Point (28 March 1981) 637; J Gurrwanngu Transcript, Darwin (3 April 1981) 928; J Mungudja, Transcript, Maningrida (7 April 1981) 1040-2, 1061-2. And see para 106, 108.
C Tatz, Submission 146 (3 September 1979).
S Murray Submission 289 (27 May 1981).
Peppimenarti Community (H Wilson) Submission 150 (6 April 1981) 2.
D Vachon, Submission 266 (1 May 1981) 20-1; cf H Middleton, Submission 105 (8 November 1978).
WEH Stanner, Submission 6 (20 February 1977) 5-6.
S Roberts, Submission 233 (6 April 1981) 2 (referring to the African experience). To similar effect Justice TV Tuivaga (Fiji) Submission 70 (20 April 1979) 2 (referring to the Fijian experience).
See further ch 31 for discussion of this principle in the context of local justice mechanisms in Aboriginal communities.
(1983) 46 ALR 625.
Other general powers (eg s 51(21) ‘marriage’) may also be relevant. See Chapter 38 for further discussion.