222. The Terms of Reference. The Commission’s Terms of Reference emphasise the problems caused by conflicts between Aboriginal customary laws and the criminal law. But these are not the only cases of conflicts between Aboriginal customary laws and the general Australian law. Nor are the Commission’s Terms of Reference restricted to the criminal law.[1] The Commission is asked generally about the recognition of Aboriginal customary laws. This includes the problems that arise in the areas of civil and family law, problems which can be just as important as those that arise with the criminal law. To a considerable extent these problems arise from the fact that Australian law is based on a different, and in some respects narrower, understanding of the family than is the case in Aboriginal societies. Often, Australian law has not taken account of the differences between the ‘nuclear family’ on which it is based and the differently structured ‘extended Aboriginal family’. The notion of marriage itself is regarded very differently in Aboriginal societies. Aboriginal words translated as ‘husband’, ‘wife’ or ‘married to’ do not correspond absolutely with their English equivalents, nor is it possible readily to translate English terms such as ‘custom’, ‘tradition’ and ‘marriage’ into Aboriginal languages.[2] This Chapter briefly outlines some traditions and customs relating to marriage and the family in Aboriginal societies, as a basis for the examination in this Part of the ways in which the law might be changed to recognise those traditions and customs.

[1]cf P Wilson, Black Death White Hands, George Allen & Unwin, Sydney, 1982, 106. See para 210.

[2]Sutton, ‘Aboriginal Customary Marriage — Determination and Definition’ (1985) 12 ALB 13.