9. Field Trips. In the initial stages of the Reference field trips were undertaken principally to gain as much information as possible. Later trips also had this function, but in addition they allowed tentative proposals to be put to people and organisations for consideration and discussion. Field trips have covered the top end of the Northern Territory, Alice Springs and the Central and Western Deserts (including the North West Reserve of South Australia, now Pitjantjatjara land), Cape York Peninsula, the Torres Strait Islands, the Kimberleys, the Eastern Goldfields of Western Australia, the capital cities, and major community centres with large Aboriginal populations. These field trips formed the basis for published Field Trip Reports as well as other less formal reports prepared by the Commission.
10. Discussion Paper 17 (1980). In November 1980, the Commission issued its Discussion Paper 17, Aboriginal Customary Law: Recognition? This was circulated to several thousand interested organisations and individuals. Copies were sent to all Aboriginal communities in Australia, to councils and advisors in those communities and to Government officials. The Commission was anxious to communicate its proposals to both Aboriginal men and women in the more remote communities. It therefore had prepared a summary of the Paper in a simple English version. Separate taped cassettes spoken in a male and female voice were made. Copies of these tapes were sent to Aboriginal communities, to regional officers of the Department of Aboriginal Affairs and to the Aboriginal Legal Services in remote areas. The simple English version was translated into three Aboriginal languages, Pitjantjatjara, Warlpiri and Gupapuyngu, and sent to communities where those languages are spoken.
11. Public Hearings. The Commission conducted public hearings to enable people to comments on its work and on the Reference generally. In particular between March and May 1981 the Commission conducted the most extensive series of public hearings in its history. Over nine weeks, hearings were held at 32 venues in all States of Australia and the two mainland Territories. As well as the capital cities, the Commission held hearings in country towns and cities and in many Aboriginal communities. These hearings were supplemented by others in Arnhem Land, Alice Springs and Kalgoorlie during later field trips to those areas. The hearings produced 3029 pages of transcript and were unique for a number of reasons. They provided an opportunity for Aboriginal people, in many cases for the first time, to express their views on the general legal systems, and on the continued existence and importance to them of their customary laws. Many of the hearings took the form of meetings where few or no prepared submissions were presented. The Commission’s tentative proposals were presented to the meetings and comments sought. Many meetings were held with the aid of interpreters. On a number of occasions separate meetings were held for men and women. Sometimes this was necessary because some aspects of customary laws could not be discussed with both men and women present. It was also done to ascertain the particular views of Aboriginal women. Discussion ranged widely during the public hearings. Most aspects of the Commission’s tentative proposals came under scrutiny. In addition issues were raised which had not been dealt with, including matters which fell entirely outside the Terms of Reference. Although no clear cut solutions emerged, there was strong support for appropriate forms of recognition of Aboriginal customary laws, and a desire to see something effective done.
12. Later Research and Discussion Papers. In January 1982 it was decided to publish a series of research papers on various aspects of the Reference. Fifteen such papers were produced between March 1982 and June 1984; these were distributed to interested persons and individuals and provoked a good deal of comment and response. Discussion Paper 18, Aboriginal Customary Law — Marriage, Children and the Distribution of Property, was produced in August 1982 as a summary of the tentative proposals in the first five research papers. The Institute for Aboriginal Development in Alice Springs and the Pitjantjatjara Council organised the translation of Discussion Paper 18 into Eastern Arrente, Warlpiri and Pitjantjatjara; these translations were recorded on cassette tapes and distributed throughout Central Australia. Discussion Paper 18 formed the focus for discussions during visits to central Australia in October 1982 and the Eastern Goldfields district of Western Australia in May 1983. In March 1984 the Commission produced Discussion Paper 20, Aboriginal Customary Law — The Criminal Law, Evidence and Procedure, which summarised its tentative conclusions in the Research Papers on these topics. Both Discussion Papers were widely distributed.
13. Seminars. In the early stages of the Reference, a number of seminars were organised to consider the scope and methodology of the Reference. The Commission, in conjunction with the Australian Institute of Aboriginal Studies, held a Working Seminar on the Reference in May 1983 in Sydney, opened by the Minister for Aboriginal Affairs, the Hon C Holding MHR. Papers were presented on key issues in all the major areas covered by the Reference. A report of the working seminar was prepared and distributed. In addition Commissioners and Commission officers involved in the Reference attended numerous conferences and seminars and presented papers on the Reference.
14. Honorary Consultants. In accordance with its usual practice, the Commission nominated for appointment by the Attorney-General a large group of honorary consultants, including knowledgeable Aborigines and other experts in the relevant disciplines, to provide advice on the legal, social, administrative and anthropological issues. Meetings with consultants, to which other interested persons were invited, were held in all capital cities and in Alice Springs. These proved invaluable in provoking discussion and opinions from participants. However, the Commission’s normal methods of consultation were much less appropriate for seeking information from more traditional Aborigines, especially those from remote communities. Hence the need for meetings and other forms of discussions with Aboriginal communities. This will be equally important in the consideration and implementation of the Commission’s proposals.
15. Other Forms of Discussion and Consultation. In addition to the activities described in the preceding paragraphs, the Commission sought to maintain close contact with organisations with special responsibilities or interests in the area covered by the Reference, both in Australia and overseas. Most important among these were Aboriginal organisations and the many Federal, State and Territory governmental agencies involved. Contacts were made with law reform agencies and other bodies in Papua New Guinea, the United States, the United Kingdom and Canada. Much helpful information was obtained from indigenous peoples’ organisations and government officers overseas, especially in Canada and the United States. There were also many more formal comments on the Commission’s work, in the form of over 500 written submissions, and of published comments, reviews and notices. The Commission expresses its gratitude to the very many people and organisations who contributed in these different ways.
See Appendix 13.1 for a summary of field trips.
This was prepared by Stephen Muecke.
For the program of hearings, see Appendix B.3.
See Appendix B.4 for a list of Papers.
See Australian Law Reform Commission-Australian Institute of Aboriginal Studies, Report of a Working Seminar on the Aboriginal Customary Law Reference, Sydney, May 1983.
See MD Kirby, ‘TGH Strehlow and Aboriginal Customary Law’ (1980) 7 Adel L Rev 172; MD Kirby, ‘should we Recognise Aboriginal Tribal Laws?’ in Reform the Law, Oxford University Press, Melbourne, 1983, 121; BM Debelle, ‘Aborigines, the Law and the Future’ (1981) 57 (11) CAB 4; BM Debelle, ‘Aboriginal Customary Law: Progress Report’ in G Nettheim (ed) Human Rights for Aboriginal People in the 1980s, Legal Books, Sydney, 1983, 63; JR Crawford, ‘The Australian Law Reform Commission’s Reference on the Recognition of Aboriginal Customary Law’ (1984) 17 Verfassung and Recht in Uberset 133; PK Hennessy, ‘Aboriginal Customary Law and the Australian Criminal Law: An Unresolved Conflict’, in B Swanton (ed) Aborigines and Criminal Justice, Australian Institute of Criminology, Canberra, 1984, 336.
See section on Participants for a list of honorary consultants on the Reference.
A list of written submissions to the Commission is set out as Appendix B.5.
See eg K Maddock, ‘Aboriginal Customary Law’, in P Hanks & B Keon-Cohen (ed) Aborigines and the Law, George Allen & Unwin, Sydney, 1984, 212; TGH Strehlow, Aboriginal Customary Law, Strehlow Research Foundation, Pamphlet No 5, Adelaide, 1978; D Bell, ‘Aboriginal Women and the Recognition of Customary Law in Australia’ in Commission on Folk Law and Legal Pluralism, Papers on the Symposium on Folk Law and Legal Pluralism, XIth International Congress of Anthropological and Ethnological Sciences, Vancouver, August 19-13 1983, Ottawa, 1983, vol 1, 491; D Bell & P Ditton, Law: The Old and the New. Aboriginal Women in Central Australia Speak Out, 2nd edn, Aboriginal History, Canberra, 1984; D Vachon, ‘Customary Law: The ALRC Discussion Paper’ (1981) 6 LSB 229; PR Wilson, Black Death White Hands, George Allen & Unwin, Sydney, 1982, 70-2, 106-10; Panel Discussion (CJ Kirkbright, P Ditton, D Weisbrot), ‘Customary Law’, in G Nettheim (ed) Human Rights for Aboriginal People in the 1980s, Legal Books, Sydney, 1983, 84; N Rees, ‘What do we Expect?’ (1983) 8 ALB 10.