392. Recommendations in this Part. Accordingly the Commission makes the following recommendations on the recognition of Aboriginal customary laws in the area of marriage, children and family property:
Recognition of Traditional Marriages: General Principles
It is not sufficient to leave the recognition of traditional marriages to the law on defacto relationships (para 245).
The general law should not enforce Aboriginal marriage rules, including promised marriage rules (para 246, 251).
Traditional Aboriginal marriages should be recognised for the purposes of particular laws (functional recognition), rather than being treated as a status equivalent to Marriage Act marriage for all or almost all purposes (para 257).
Recognition should, in principle, extend to polygynous marriages where these exist in accordance with tradition (para 258-60).
There should be no requirement of a minimum age for recognition (para 261).
A relationship should not be recognised as a traditional marriage if one of the parties has never. at or before the time in question, consented to the relationship (para 262).
Recognition should extend to any relationship between two persons which is recognised as a traditional marriage under the customary laws of an Aboriginal community of which one of those persons is a member, irrespective of whether the other person is a member of that or any other Aboriginal community (para 264-6).
Recognition should be extended to a relationship, previously recognised as a traditional marriage, which continues after the parties cease to reside in the relevant community (para 267).
A certificate as to the existence of a traditional marriage, given by the public officer of an Aboriginal council or like body, should be admissible as evidence of the facts stated in it (para 268).
Recognition should be extended to traditional marriages already existing, but that legal effect of recognition should be prospective only (para 269).
No residual provision. recognising traditional marriage for all purposes, is desirable. But it should be possible for other laws, including State and Territory laws, to recognise traditional marriage for the purposes of those laws (para 269, 324).
Traditional marriages should be specifically recognised for the following purposes:
· status of children (para 271).
· adoption, fostering and child welfare laws, including both parental consent to adoption. and qualifications to adopt, (para 272-9).
· distribution of property on death (intestacy, family provision) (para 292, 294).
· accident compensation (including workers’ compensation, compensation on death, criminal injuries compensation and repatriation benefits) (para 297, 299, 300).
· statutory superannuation schemes (and private superannuation schemes established in the futures) para 301).
· for all purposes of the Social Security Act 1947 (Cth), with special provision being made for separate payment to spouses, and an associated regulation making power (para 310-12).
· spousal compellability and marital communications in the law of evidence (para 315-6).
· unlawful carnal knowledge, provided both consent and traditional marriage are proved (para 319).
· the Income Tax Assessment Act 1936 (Cth) and related legislation (para 322).
Traditional marriages should not however be recognised for the following purposes:
· variation of maintenance and property rights during a relationship (para 284-6) or on divorce (para 289-90).
· bigamy (para 317).
· rape in marriage (para 318).
· powers under the Family Law Act 1975 (Cth) to grant injunctions with respect to domestic violence (para 321).
· the Family Court’s jurisdiction with respect to principal and ancillary relief (para 323)
Distribution of Property
No change should be made to the laws governing the transfer of real or personal property in an attempt to accommodate Aboriginal ways of transfer (para 328, 330).
Aboriginal people have the right to make a will and if they do the usual laws should apply (para 333). In particular there should be no special provision for informal wills by traditional Aborigines (para 335). In interpreting the words used in a will or other document, regard should be had to Aboriginal customary laws where relevant, but since this represents the common law rule, no legislative provision to this effect is necessary (para 336).
Traditional marriages should be recognised for the purpose of intestacy legislation (para 338).
Aborigines should be able to apply to have an intestate estate distributed in accordance with the traditions or customary laws of the deceased’s community (para 340, 342).
State and Territory legislation for family provision (testators family maintenance) should allow for applications for family provision by persons related by blood, kinship or marriage to a deceased member of an Aboriginal community and who could at the time of the deceased’s death, have reasonably expected support (including material support) from the deceased in accordance with the customary laws of that community (para 341).
Claims for family provision should prevail, in clear cases of need, over claims for traditional distribution on intestacy (para 342).
Aboriginal Child Custody, Fostering and Adoption
There should be an Aboriginal child placement principle established by legislation, requiring preference to be given, in decisions affecting the care or custody of children, and in the absence of good cause to the contrary, to placements with:
· a parent of the child;
· a member of the child’s extended family;
· other members of the child’s community (in particular, persons with responsibilities for the child under the customary laws of the community) (para 366).
Where such a placement is not possible, preference should be given to placement with families or in institutions for children approved by members of the relevant Aboriginal communities having special responsibility for the child, or by an Aboriginal child care organisation working in the area (para 365-6).
In making these decisions account should be taken of the standards of child care and child welfare of the Aboriginal community to which the child belongs (para 365-6).
An ‘Aboriginal child’ for this purpose should be defined as a child one of whose parents was Aboriginal (para 367).
The placement principles should not apply to give a statutory preference to one parent over another (para 367).
For the time being at least, the placement principles should not apply to decisions taken within the juvenile justice system. However this should be kept under review, to ensure that the guidelines are not avoided by treating civil custody issues as sentencing questions (para 367).
Child welfare legislation should provide explicitly for consultation with the relevant Aboriginal custodians of a child and (unless they direct to the contrary) with the relevant Aboriginal child care agency, before placement decisions (except emergency decisions involving short-term placement) are made (para 373).
Careful attention should be given to the possibility of devolving child care responsibilities to regional or local child care agencies by agreement, and with appropriate resources (para 371).
Subject to this, there should be no change in existing judicial or administrative jurisdictions with respect to Aboriginal child custody cases. In particular, jurisdiction should not be specially conferred on the Family Court in custody cases involving Aboriginal children or children of traditional marriages (para 382).
There should be no specific recognition of customary adoption (para 386).
Consideration should be given to amending the Social Security Act 1947 (Cth) to ensure that child endowment and other benefits on account of the care of children are paid as nearly as possible to the person or persons with overall responsibility for the child or children in question without undue emphasis on the location of legal custody (para 390).
One member of the Commission (Professor JR Crawford) would recognize traditional marriages only where the parties are, at the time when the claim to recognition is made, above the minimum marriageable age in Australian law. In his view the legislation should contain a provision equivalent to Marriage Act 1961 (Cth) s 88C(3). See para 261.
One member of the Commission (Professor MR Chesterman) would allow an application for traditional distribution to override the provisions of a will. See para 342.
One member of the Commission (Professor MR Chesterman) dissents from this recommendation. In such cases, in his view, traditional distribution should prevail. See para 342.