Scope of the Report

210. Issues of Criminal and Civil Law. The Terms of Reference emphasise the relevance of Aboriginal customary laws in criminal proceedings, both in the application of customary laws by the existing criminal courts, and in relation to the possibility that Aboriginal people should be empowered to apply their customary laws in the ‘punishment and rehabilitation of Aborigines’. But the Terms of Reference are not restricted to criminal law issues.[63] Conflicts between Aboriginal customary law and the general law are not limited to the criminal law. The point was strongly made by Professor WEH Stanner:

It is freely assumed, for example, that the area of greatest concern is that covered by English Australian criminal law. This is only arguably the case, and there are some grounds for believing that not only will the area of civil law become the more important but that the adaptation of the criminal law to people in the Aboriginal social situation, or the reconciliation of Aborigines to the criminal law as it affects all citizens, might be the easier if a satisfactory solution were found of their civil rights, duties, liabilities and immunities.[64]

The Commission has not limited its inquiries to the criminal law but has dealt with such matters as marriage, custody of children, and distribution of property,[65] evidence and procedure,[66] and hunting, fishing and foraging rights.[67] The question of local justice mechanisms to apply Aboriginal customary laws — the second specific question in the Terms of Reference — is of course also dealt with.[68]

211. Delimiting the Scope of Inquiry. A broad approach to the Reference means that a correspondingly wide range of issues is, at least potentially, raised by the Commission’s inquiry. But the need to focus on issues within its own competence as a Law Reform Commission, and on issues which are manageable with a single inquiry into the impact of the general law on traditionally oriented Aborigines, has required that certain matters be dealt with in this Report to the exclusion of others. In determining the scope of this Report the Commission has had particular regard to the need to avoid overlap with or repetition of work being done by other bodies. A number of earlier inquiries and reports relate to the subject of this Reference.[69] During the course of the Commission’s work a number of Reports of the House of Representatives Standing Committee on Aboriginal Affairs dealt with issues relevant to the Reference. These include in particular:

  • the Final Report on Alcohol Problems of Aboriginals;[70]

  • the Report on Aboriginal Legal Aid;[71]

  • the Report on Strategies to Help Overcome the Problems of Aboriginal Town Camps.[72]

In addition, a number of other inquiries into related questions have been conducted in recent years. Shortly after the Commission received its reference, the Western Australian government commissioned Mr Terry Syddall SM MBE to conduct an inquiry into Aboriginal tribal law and to recommend ways of improving the understanding of the general law by Aboriginal communities. As a result of recommendations made by Mr Syddall, the Aboriginal Communities Act 1979 (WA) was passed establishing local justice schemes in certain communities in the Kimberleys.[73] In South Australia a Committee on Aboriginal Customary Law was appointed by the South Australian Attorney-General in 1978. The Committee has produced a number of Reports on particular questions,[74] and its work is continuing. There has also been an Inquiry into Aboriginal legal aid by Mr JP Harkins, initiated in 1983, which in addition to the funding and role of Aboriginal legal services examined issues such as community legal education, the role of the legal services in presenting local community opinion and a range of related questions. The Commission has been careful to take into account the work of these parallel inquiries and to avoid overlap with them. In particular the nature and detailed character of work being done in two specific areas has been such as to make it undesirable for the Commission to cover the same ground. These are:

  • the recognition of Aboriginal land rights and claims;

  • the protection of Aboriginal art and heritage.

212. Aboriginal Land Rights and Claims. The history of the initial non-recognition, and the recent partial recognition of Aboriginal land claims has already been referred to.[75] The level of activity at both the State and Federal level, while both sporadic and contentious, has brought about significant developments in the last 10 years.[76]

  • The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was the first major piece of land rights legislation. It provided for title to existing reserves to be transferred, and established machinery to deal with traditional claims to other land (being vacant Crown land, or land held by or for Aborigines). In the case of a successful claim, a Land Trust is set up to hold the land, which is then managed by the appropriate Land Council taking into account the wishes of the traditional owners and other Aborigines with interests in the land. Claims have been lodged to virtually all the vacant Crown land in the Northern Territory. So far more than 20 claims have been successful. In all, Aboriginal freehold title now accounts for 34.02% of the Northern Territory (or some 458,100 square kilometres).[77]

  • South Australia was the first State to provides in the Pitjantjatjara Land Rights Act 1981, inalienable Aboriginal freehold title over 100 000 square kilometres in the north-west of that State.[78] The Maralinga Tjarutja Land Rights Act 1984 (SA) which contains broadly similar provisions confers inalienable freehold title to some 50 000 square kilometres.

  • The Aboriginal Land Rights Act 1983 (NSW) provides for claims to certain Crown Land on a variety of grounds.[79]

  • In other States, the grant of land to Aboriginal people so far has been less significant, but in all States but Tasmania either legislation has been enacted or proposals for legislation made by the State Government in question.[80]

  • The Commonwealth has made proposals for national land rights legislation which would reinforce and supplement provisions for land rights at State level.[81] The future of these proposals is uncertain.

In many respects the recognition of land rights and the recognition of Aboriginal customary laws are one aspect of the same endeavour, that is, to respect the right of Aborigines to retain their own ways of life and traditional values. The link with land must never be forgotten in seeking to understand the structure and operation of Aboriginal customary laws. However in view of the detailed work being done by other bodies, and by the Commonwealth Government itself, the Commission has treated the question of customary rights to land as outside the scope of its inquiry. This does not mean that land rights issues have been ignored in the formulation of the proposals in this Report. For example, local justice mechanisms may well be based in Aboriginal communi ties established in a particular area. Where this is Aboriginal land, it may be that the necessary internal cohesion and support for some form of justice mechanism will be more readily forthcoming.[82] This Report also examines aspects of the use of land by way of traditional hunting, fishing and foraging rights.[83]

213. Protection of Aboriginal Art and Heritage.[84] The sale of sacred objects and Aboriginal paintings and artefacts can sometimes create difficulties. Selling (or giving away) such items may be a breach of Aboriginal customary laws. In particular, questions have arisen as to whether there should be any special protection for Aboriginal artwork or designs, and as to what form of protection might be created to prevent the use of sacred/secret material contrary to customary laws. Further questions relate to the destruction or debasement of items of folklore, their export, and the use of such items for commercial gain without remuneration to traditional owners. These matters have been the subject of an extensive study by a Commonwealth Government Working Party.[85] The Commission notes the recommendations of this Working Party, and the referral of the matter by the Minister for Aboriginal Affairs to a Portfolio Sub-Committee for special study. After consultations with these organisations the Commission believes that no purpose would be served by it undertaking a separate investigation of these matters under its Terms of Reference. The Commission was influenced by the fact that it has had virtually no submissions, formal or informal, on the matter. Similarly, the questions of protection of Aboriginal sacred or significant sites or objects, which are the subject of the Aboriginal and Torres Strait Islanders Heritage (Interim Protection) Act 1984 (Cth) and of State and Territory legislation on those topics, have been extensively dealt with in other forums. These questions have also been treated as outside the scope of this Report.

[63]cf P Wilson, Black Death. White Hands, George Allen and Unwin, Sydney, 1982, 106:

One weakness in the Commission’s frame of reference relates to its over-emphasis on criminal law matters to the exclusion of ‘personal law’ areas. Questions relating to marriage, dissolution of marriage, child custody, title to property and a host of related matters are critically important in Aboriginal social organisation, which differ markedly from white organisation.

This was written before the publication of ALRC DP 18, dealing with marriage, children and the distribution of property. See para 12.

[64]Submission 6 (20 February 1977) 3. See also C Tatz, Aborigines and Uranium and Other Essays, Heinemann, Richmond, 1982, 83; C Tatz, ‘Aborigines and Civil Law’ in P Hanks & B Keon-Cohen (ed) Aborigines and the Law, George Allen & Unwin, Sydney, 1984, 103.

[65]See Part III of this Report.

[66]See Part V.

[67]See Part VII.

[68]See Part VI.

[69]See para 4, 50, 56, 683-5.

[70]AGPS, Canberra, 1978.

[71]AGPS, Canberra, 1980.

[72]AGPS, Canberra, 1982. See also the Report of the Senate Standing Committee on Constitutional and Legal Affairs on the feasibility of a compact, or ‘Makarrata’ between the Commonwealth and Aboriginal people: Two Hundred Years Later … Report on the Feasibility of a Compact or ‘Makarrata’ between the Commonwealth and Aboriginal People, AGPS, Canberra, 1983.

[73]See para 743-4.

[74]Aboriginal Customary Law Committee, Preliminary Report (Chairman, Judge JM Lewis), Adelaide, September 1979; id, Children and Authority in the North-West, Adelaide, August 1984.

[75]See para 23, 61, 67, 77.

[76]For an account of Aboriginal land rights in Australia see N Peterson, Aboriginal Land Rights: A Handbook, ALAS, Canberra, 1981; N Peterson & M Langton, Aborigines, Land and Land Rights, AIAS, Canberra, 1983; K Maddock, Your Land is Our Land, Penguin, Ringwood, 1983; JC Altman, Aborigines and Mining Royalties in the Northern Territory, AIAS, Canberra, 1983; B Keon-Cohen & B Morse, ‘Indigenous Land Rights in Australia and Canada’ in Hanks and Keon-Cohen (1984) 74; M Charlesworth, The Aboriginal Land Rights Movement, 2nd edn, Hodja Educational Resources Cooperative, Richmond 1984; Justice AE Woodward, ‘Land Rights and Land Use: A View from the Sidelines’ (1985) 59 ALJ 413; M Gumbert, Neither Justice Nor Reason, University of Queensland Press, St Lucia, 1984.

[77]The 1976 Act was reviewed in 1983-4, with only relatively minor recommendations for change being made. See Justice J Toohey, Seven Years On. Report to the Minister for Aboriginal Affairs on the Aboriginal Land Rights (Northern Territory) Act 1976 and Related Matters, AGPS, Canberra, 1984.

[78]See P Toyne & D Vachon, Growing Up the Country, Penguin, Ringwood, 1984.

[79]For background to the Act see NSW, Select Committee of the Legislative Assembly upon Aborigines, First Report, Aboriginal Land Rights and Sacred and Significant Sites (Chairman: MF Keane MP) Sydney, 1980. For discussion of the Act see M Wilkie, Aboriginal Land Rights in New South Wales, APCOL, Sydney 1985. See also (1983) 7 ALB 1; (1983) 8 ALB 8, 11; (1983) 9 ALB 9.

[80]For Queensland see Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982. In Victoria an Aboriginal Land Claims Bill 1983 was introduced into Parliament but deferred pending further discussions. In WA following a report of the Aboriginal Land Inquiry (Aboriginal Land Inquiry, Report (Chairman: P Seaman QC) Perth, 1984), legislation was introduced into the State Parliament but was defeated by the Upper House: Aboriginal Land Bill 1985. See (1985) 12 ALB 6.

[81] For a description of the current proposals see (1985) 140 Aboriginal Newsletter 1-6.

[82]See Chapter 31.

[83]See Part VII of this Report.

[84]See R Edwards (ed) The Preservation of Australia’s Aboriginal Heritage, AIAS, Canberra, 1975.

[85]Department of Home Affairs, Working Party on the Protection of Aboriginal Folklore and the Control and Protection of Cultural Property, Report (4 December 1981).