461. Customary Laws as a Basis for Criminal Liability. There are a number of dangers in making customary law matters, such as those raised in the submissions summarised earlier, grounds for substantive criminal liability. Many Aborigines in the course of the Commission’s consultations expressed fears that such incorporation would deprive them of control over their law, which they perceive as more a way of life and of resolving conflict than an external body of rules. Furthermore it is clear that each community is likely to have very different laws, with the result that no general set of rules or prescriptions could be agreed on:
Should a code of substantive rules be favoured. however. it would be necessary to ask oneself whether it is reasonable to expect a community to produce a list of rules governing the entirety of the conduct of members together with an indication of how to weigh them against each other in cases of conflict between members who were invoking different rules … Our knowledge of present realities is insufficient to provide the necessary information and too large a research effort would be needed to provide it … Actions forbidden in some communities are permitted in others. Acceptance of one or other of these possibilities would, furthermore, freeze customary law at an arbitrary point in time unless provisions were made for future changes in the rules. If rules of change were provided, they would presumably operate rather rigidly. since all the communities would have to be kept in line with each other irrespective of developments in each …
But it is not just that codification of customary laws is difficult or impractical. In the Commission’s view, it would be undesirable in principle for the general legal system to seek to codify those laws. The Lajamanu proposal presents this kind of risk: if such laws were to be enacted or formalised they would to that extent be removed from Aboriginal control, and the flexibility which is a fundamental feature of their operation would disappear, especially if such laws were to be enforced by the general legal system rather than by Aborigines themselves either through some form of Aboriginal court or unofficially. It would also be difficult to establish the mechanisms needed to enforce, for example, the compensation provisions sought in the Roper River proposal. For reasons already given, it is unlikely that the wishes of some elders to use certain customary punishments could be given recognition by the general law.
462. The Preferred Approach. For these reasons the Commission does not support the general codification of Aboriginal customary laws or its direct enforcement by the ordinary courts. However, it may be that in particular cases the ‘incorporation’ of Aboriginal customary laws as the basis for a particular offence is desirable. Consistently with the views reported in the last paragraph, Aborigines themselves, in discussions with the Commission, saw this as necessary in some cases, principally to protect their traditions, rules and sites from outside invasion or violation; that is, as a method of enforcement against outsiders, rather than as a reinforcement of customary law within their communities. To some extent this occurs now, in provisions protecting Aboriginal land and sacred sites, such as the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 (Cth) is another example of this approach. Where there are problems that require more than an administrative response, it is therefore necessary to ask three questions:
whether the matter can be adequately dealt with by the community under any bylaw making powers, and whether any amendment or extension of these powers is needed;
whether resort can or should be made to existing provisions under the general legal system; and finally
whether some additional specific measures of protection may be required.
463. Use of Local By-law Making Powers. There is potential in several States for infringements of Aboriginal customary laws to be dealt with by the Aboriginal community concerned under by-law making powers. Legislation in both Western Australia and Queensland provides for the making of by-laws as part of the machinery for local self government. The Community Government Act also enables some Aboriginal communities in the Northern Territory to make their own by-laws. These by-laws may allow Aboriginal customary laws to be applied in certain cases in the ordinary courts. There is also scope for customary laws to be invoked in the settling of disputes under community justice schemes that do not make use of the ordinary courts. For example, the Mornington Island proposal supported local by-laws incorporating aspects of customary law, enforced by a local Aboriginal court, although effective power to bring about changes to the by-laws would need to be provided. These matters are dealt with in some detail in Part VI of this Report.
464. Use of Existing Laws. Public order offences have quite often been directed against Aborigines for trivial breaches of decorum or public order. But they have also been used on occasions to support Aboriginal concepts of decorum and public order. For example in Police v Charlie Ngalmi, the defendant was charged with several offences including offensive behaviour. The basis of this charge was that the defendant while drunk had called out a dead person’s name at Angurugu, an Aboriginal settlement on Groote Eylandt. Calling out the names of dead persons in such circumstances is a violation of Aboriginal customary laws and may be extremely offensive. The magistrate, after hearing evidence of the offence and its impact on the community, convicted and cautioned the defendant; on a related offence he imposed an 18 month good behaviour bond. He took into account an informal fine of $110 apparently levied by the Council. The use of public order offences in this way may well be appropriate to assist in deterring conduct which may be highly disruptive. There is little doubt that a person who uses language which he knows or suspects will be regarded as highly offensive by the local community may be guilty of ‘offensive behaviour’ or similar offences. As Justice McCullough pointed out in another context:
Where the defendant is addressing an audience which he knows has special susceptibilities, a breach of the peace may be the natural and probable result of behaviour which would not provoke an audience not having this susceptibility in such a way.
While use of general provisions and powers in these sorts of ways may be helpful, it is not without its pitfalls. For example, what the general law regards as a trivial matter may be regarded as a serious violation of Aboriginal customary laws. This problem can be dealt with to some extent by the use of sentencing discretions, assuming that evidence of the community’s view, and of the disruptive effects of the offence, is available. But the range of penalties available may be quite inappropriate, so that attempts at reinforcing Aboriginal tradition may risk trivializing it. This underlines the need for care and restraint in this area: nonetheless the use of existing public order offences where breaches of customary laws create community disruption and tensions may well be appropriate in some cases.
465. Need for Additional Specific Measures. The matters raised in the submissions set out in para 455-459 cover the following broad areas.
Public order offences (eg making unnecessary noise, damage to property). Almost invariably these offences can be dealt with under existing general law offences. In Western Australia and Queensland, Aboriginal communities can also make such matters the subject of local by-laws.
More serious criminal offences (eg murder, rape). General law offences already cover these matters. The Commission addresses the role of customary laws in relation to these offences elsewhere in this Part.
Reinforcement of customary laws securing the maintenance of social relationships (eg correct marriages, avoidance laws, appropriate customary distribution of food). These are more properly the province of the individual Aboriginal local concerned and should be dealt with by the community itself (unofficially or possibly through community justice mechanisms). The underwriting of these rules by the general law would usually be of limited assistance in maintaining them, and might even be counter-productive. However, it may be that the general law can assist Aboriginal communities in ways other than by underwriting the customary rules. For example, the Commission’s recommendations for the functional recognition of traditional marriage may assist by reducing conflict between the general marriage law and customary marriage laws. Secondly it may be that breaches of customary rules governing social relationships cause disruption within the community, in which case resort could be had to the general law relating to, among other things, offensive behaviour. Thirdly, certain customary laws serving social relationships may fall within the category of sacred/secret matters.
Customary laws governing Aboriginal sacred/secret matters (eg intrusion on secret and sacred sites, desecration of sacred objects, revelation of secret words, songs, rituals). It is in areas such as these that special incorporation of customary laws as a ground of substantive liability can assist in preventing breaches of customary laws particularly by outsiders. However this must necessarily be done on a case-by-case basis. Some examples of particular problems and possible remedies are discussed in the following paragraphs.
See eg ALRC ACL Field Report 7, Central Australia (1982) 22, 24, 27; ALRC ACL Field Report 9, Northern Queensland (1984) 18.
K Maddock, Submission 11 (31 October 1977) 22-3.
See para 200, 623 for a discussion of the arguments against codification. This view was also supported by the Department of Aboriginal Affairs, Submission 315 (21 January 1982) 2.
See para 442-50, 512-515.
See para 463, 727, 748-755.
See para 760-3. The scheme so far applies to 3 communities.
See para 394-395.
Unreported, NT Court of Summary Jurisdiction, 13 June 1979 (Mr G Galvin CSM). The Commission has been told of other such cases.
See eg TI Pauling, Submission 27 (June 1977).
See Parkin v Norman  2 All ER 583, 588 (‘insulting behaviour whereby a breach of the peace was likely to be occasioned’).
As it was in Ngalmi’s case.
A point forcibly made in RD Marika & NM Williams, Submission 41 (15 October 1977): your law, taking the place of our law, does not satisfy our canons of justice: your law saves people, and our law prescribes death for offenders in serious cases. See also Justice Toohey, enclosing Comments of Elders of Port Keats Community, Submission 77 (7 June 1978).
Other avenues of redress may also be available, depending on the willingness of the authority or body in question to be involved. This is not always present. The Commission raised with the Australian Press Council the question of press publication of the names of recently deceased Aborigines in traditional communities (following incidents of this kind in Central Australia): letter of 7 March 1984. The Council declined to formulate guidelines or otherwise to assist in relation to such reports: Letter of CJ McKay, Executive Secretary of the Council, to the Commission, 30 March 1984.
See para 727, 751, 754, 761.
See Chapter 18.
See Part VI of this Report.
See para 464.
These customary laws may also secure the maintenance of social relationships. cf para 37.