221. Conclusions in Parts I & II. The Commission’s general conclusions, as set out in Parts I and II of this Report, may be summarised as follows:
Scope for Recognition under the Existing Law
The scope for recognition of Aboriginal customary laws through common law rules for the recognition of local custom or communal native title is very limited (para 62, 63), and is inadequate to deal with the questions raised by the Commission’s Terms of Reference (para 63).
The same conclusion applies to arguments for the recognition of Aboriginal customary laws through the re-examination of the status of Australia as a ‘settled colony’. A reclassification of Australia as a ‘conquered colony’, were it to occur, would not as such bring about appropriate forms of recognition of Aboriginal customary laws and traditions as these exist now (para 68).
Although Aboriginal customary laws and traditions have been recognised in some cases and for some purposes by courts (para 70-5) and in legislation (para 76-84), this recognition has, on the whole, been exceptional, uncoordinated and incomplete (para 85 ).
It is not necessary, constitutionally or otherwise, to spell out a detailed definition of who is an ‘Aborigine’. This question, so far as necessary, can be worked out as a case-by-case basis, in accordance with the broad approach so far taken in legislation and administrative practice and by the High Court (para 90-5).
Nor is it necessary to frame a definition of ‘traditional Aborigine’ for the purposes of the recognition of Aboriginal customary laws. The application of any recommendations for recognition in appropriate cases is to be achieved by the substantive requirements of the provision in question (para 95).
Torres Strait Islanders are a distinct group from Aborigines, and the recognition of their customary laws requires separate examination. However some at least of the recommendations in the Report are or may be appropriately applied to Torres Strait Islanders as well as to Aborigines (para 96).
The Commission’s Terms of Reference do not extend to South Sea Islanders (para 97).
There existed, in traditional Aboriginal societies, a body of rules, values and traditions which were accepted as establishing standards or procedures to be followed and upheld. Despite numerous changes, such rules, values and traditions continue to exist in various forms (para 99).
These rules, values and traditions can properly be described as ‘Aboriginal customary laws’ (para 100-1).
Narrow legalistic definitions of Aboriginal customary laws are unnecessary and inappropriate (para 101). It will usually be sufficient to identify Aboriginal customary laws in general terms where these are recognised for particular purposes. But the form of definition will depend upon the kind of recognition, and its purpose (para 101).
General Considerations and Arguments about Recognition
Various objections to the recognition of Aboriginal customary laws have been made, including:
· the problem of unacceptable rules and punishments (para 114):
· secret aspects of Aboriginal customary laws (para 115):
· loss of Aboriginal control over their laws (para 116):
· the need to protect Aboriginal women (para 117);
· the community divisiveness that recognition could cause (para 118);
· the fact that Aboriginal customary laws have changed in many respects and no longer exist in their pristine form (para 119-121);
· the declining importance and limited scope of Aboriginal customary laws (para 122, 124):
· law and order problems in Aboriginal communities (para 123):
· the difficulties of definition (para 126).
These are either not objections to recognition as such (as distinct from considerations in framing proposals for recognition), or are not persuasive (para 217).
On the contrary there are good arguments for recognising Aboriginal customary laws, including in particular:
· the need to acknowledge the relevance and validity of Aboriginal customary laws for many Aborigines (para 103-5);
· their desire for the recognition of their laws in appropriate ways (para 106);
· their right, recognised in the Commonwealth Government’s policy on Aboriginal affairs and in the Commission’s Terms of Reference, to choose to live in accordance with their customs and traditions, which implies that the general law will not impose unnecessary restrictions or disabilities upon the exercise of that right (para 107);
· the injustice inherent in non-recognition in a number of situations (para 110-11, 127).
Discrimination, Equality and Pluralism
A particularly important argument against the recognition of Aboriginal customary laws is that it would be discriminatory or unequal, and would violate the principle of equality before the law (para 128). But special measures for the recognition of Aboriginal customary laws will not be racially discriminatory, nor will they involve a denial of equality before the law or equal protection as those concepts are understood in comparable jurisdictions, if these measures:
· are reasonable responses to the special needs of those Aboriginal people affected by the proposals;
· are generally accepted by them; and
· do not deprive individual Aborigines of basic human rights, or of access to the general legal system and its institutions (para 158-165).
In particular, to avoid problems of inequality or potential discrimination arising, measures for recognition should comply with certain guidelines:
· They should, as special laws, only confer rights on those Aborigines who, in the particular context, experience the disadvantages or problems which are the reasons for the provisions in question.
· Aborigines should, wherever possible, retain rights under the general law (eg, to enter into Marriage Act marriages, to make wills).
· Any legislation should be no more restrictive of rights under the general law than is necessary to ensure fidelity to the customary laws or practices being recognised.
· Measures of recognition should not unreasonably withdraw legal protection or support from individuals (Aboriginal or non-Aboriginal) (para 165).
Where the most appropriate remedy to a problem is not a recognition of customary law as such but some more general provision, it is necessary to consider whether that provision can legitimately be applied to some class of Aborigines only, or whether the reasons for the provision apply equally to all members of the community. If the latter, the Commission should draw attention to the problem, without making recommendations for legislation applicable only to the more limited class (para 165).
These principles will also avoid or allay concerns at the recognition of Aboriginal customary laws based on arguments about the undesirability of legal pluralism or the diversity of laws (para 166-8).
There is some risk nonetheless that proposals for the recognition of Aboriginal customary laws could be seen to be divisive or could be an affront to public opinion, either in isolation or if associated with other measures. Assessment of this risk, and of its relevance to the range of proposals for legislation, is primarily a matter for the Parliament and the people’s representatives (para 169).
Ensuring other Basic Rights
Australia is neither required to recognise Aboriginal customary laws in any general way, nor is it prohibited from doing so, by any international obligations on minority or indigenous rights (para 171-8). However, such recognition, provided it preserves basic individual rights, is consistent with the spirit of the International Covenant on Civil and Political Rights, and especially with Article 27 of the Covenant concerning the rights of ethnic, linguistic and cultural minorities (para 175-8).
In securing basic human rights (including those specified in the Covenant), terms and ideas which imply a measure of cultural relativity may have to be applied by reference to the cultural community within which the case arose (including, by virtue of Art 27, a minority ethnic or cultural group). But minority values, cannot as such justify the violation of basic human rights, any more than can majority values (para 184-92).
The impact of human rights standards on proposals for the recognition of Aboriginal customary laws depends on the particular proposal, and cannot be discussed in the abstract. The Commission believes that the recommendations in this Report do not involve violations of basic human rights for Aborigines or for other Australians. On the contrary, the need to respect the human rights and cultural identity of Aboriginal people supports the case for appropriate forms of recognition of Aboriginal customary laws (para 192-3).
The Commission’s Approach
Aboriginal customary laws should be recognised, in appropriate ways, by the Australian legal system (para 194).
The recognition of Aboriginal customary laws must occur against the background and within the framework of the general law (para 195).
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 (para 196).
The issues of the extent and method of recognising Aboriginal customary laws need to be considered separately from any arguments about the federal system (para 197).
Recognition of Aboriginal customary laws may take different forms, including:
· codification or specific enforcement of customary laws;
· specific or general forms of ‘incorporation’ by reference;
· the exclusion of the general law in areas to be covered by customary laws;
· the translation of institutions or rules for the purposes of giving them equivalent effect (eg marriage or adoption):
· accommodation of traditional or customary ways through protections in the general legal system (para 199-207).
The Commission does not believe that, as a general principle, codification or direct enforcement are appropriate forms of recognition of Aboriginal customary laws (para 200-2). Nor, at the present time and except in limited circumstances, is the exclusion of the general law (para 203). Specific, particular forms of recognition are to be preferred to general ones. So are forms of recognition which avoid the need for precise definitions of Aboriginal customary laws, a notion which is to be understood broadly rather than narrowly (para 208).
Scope of the Report
Consistently with this approach, Parts III-VII of this Report examine the various areas in which recognition may be called for, and the ways in which this can best be achieved (para 209, 220). These areas include issues both of civil law and criminal law, of substantive law and of evidence and procedure (para 210), as well as consequential matters (para 214-16).
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 (para 212). For similar reasons no separate investigation of the legal protection of Aboriginal artworks and the Aboriginal heritage is undertaken in the Report (para 213).
Review of Implementation
In all cases the implementation of the Commission’s recommendations will require consultation with Aboriginal people affected. It is for the Government to take steps to satisfy itself that any legislation based on these recommendations is supported by the Aboriginal people who will be affected by it (para 217).
The impact of any such legislation will require evaluation and review on a continuing basis, in consultation with the Aboriginal people concerned (para 218). But such review does not require a ‘sunset clause’ for the legislation, and such a ‘sunset clause’ would be undesirable (para 219).