687. Diffuse and Wide-Ranging Problems. These responses are clearly not limited to the question of the application of Aboriginal customary laws but address wider issues of law and order and the interaction of Aborigines with the general legal system. It is evident that the questions posed for the Commission by the second limb of its Terms of Reference must be considered against a background of:
debate over, and selective experiments with, existing legal institutions in an attempt to achieve such goals as
· greater use of mediation, conciliation and informal settlement;
· reduction in cost and formality;
· more responsive decision-making in specialised contexts;
· better control of law and order problems, in the light of the defects of existing structures for social control;
· reduction in the number of Aborigines coming into contact with the criminal justice system;
· reduction in the number of Aborigines in Australian gaols; and
suggestions (from Aborigines and others) that encouragement of local justice mechanisms is a key to the recognition of, or respect for, the local customary law and traditions of Aboriginal groups.
At the same time it is necessary to keep very clear what role the Commission can play in this area, in the light of constitutional and administrative constraints, and of its Terms of Reference. The constitutional limitations imposed by Chapter III of the Commonwealth Constitution, and the administrative problems of direct Commonwealth involvement in local justice mechanisms are not arguments against appropriate reforms. They are in the nature of external constraints on direct Commonwealth action and are referred to in more detail elsewhere.
688. The Terms of Reference: Conflicting Interpretations. The second question asked of the Commission is:
to what extent Aboriginal communities should have the power to apply their customary law and practices in the punishment and rehabilitation of Aborigines.
It is not clear whether the second question posed by the Reference is to be restricted to the punishment and rehabilitation of Aborigines in respect of offences against the general law, or whether it also encompasses punishment and rehabilitation of Aborigines only for offences against Aboriginal customary laws (whether or not such offences are also offences against the general law). There are difficulties on either assumption. On the first interpretation, there is the problem that the offence may not be recognised as a wrong under Aboriginal customary laws, or may be regarded in a very different light. This raises questions of the relationship between the general criminal law and its administration, and Aboriginal customary laws and practices, which are discussed in Part IV. In part these questions involve the ‘delegation’ of the power to punish for offences defined other than in Aboriginal terms. In part they involve the mitigation of general law offences to take customary laws into account (e.g. through criminal defences of various kinds or in sentencing). As Chapters 18 and 21 conclude, there may be value in at least some of these forms of recognition, but they are limited in character and indirect in any effect they may have in supporting or restoring Aboriginal authority. On the second interpretation, that is, that the power of Aboriginal communities extends not only to punish or rehabilitate the offender but, through the application of local customary laws, to define the offence, a considerably greater degree of local control seems to be envisaged. But the assumption seems to be that this control is to be limited to those rules and sanctions properly regarded as ‘customary’ (as it is certainly to be limited to Aboriginal defendants). This is a very modified form of control, no matter how flexible the definition of ‘customary law and practices’. As soon as one talks about the establishment of justice mechanisms in some official way (e.g. Aboriginal courts) in Aboriginal communities, this inevitably raises the idea of formal mechanisms of a ‘non-customary’ kind. It is almost a contradiction in terms to talk of setting up an official mechanism in an Aboriginal community to apply customary laws. It would be equally inconsistent to confer ‘autonomy’ on such communities on condition that it was only exercised in a certain, recognisably ‘customary’, way. Considering the range of new problems these communities face, this would be no autonomy at all.
689. Local Self-Determination. It is by no means clear that Aborigines would wish to take responsibility for all law and order problems occurring within their communities. It cannot be assumed that many offences with which Aborigines are commonly charged would somehow diminish or disappear if ‘customary processes’ were applied. To apply Aboriginal customary laws in this way may be simply misconceived. But there is an even more fundamental question. If Aboriginal communities are to be given power to apply their customary laws and practices (whether defined broadly or narrowly), is this being done in order to return to Aborigines greater control over their daily affairs, or is it rather an attempt to divest the general legal system of a problem it has been unable to resolve? Care is required to ensure that under the guise of saying ‘these are matters for Aborigines to resolve’, the shortcomings of the general legal system as it applies to Aborigines are not foisted onto Aboriginal communities. They may have neither the inclination nor the resources to take on this task. The primary answer is, no doubt, that nothing can be done without the general agreement of those Aborigines affected by a proposal. This is likely to mean that there will be no uniform response. Some Aboriginal communities may seek to apply their customary laws, or may seek even broader powers, to control law and order within their communities. Other communities may merely seek greater understanding between the two legal systems and control over the manner and level of policing. How, then, is it possible to accommodate this broad range of likely responses? These issues were discussed for example, by Dr von Sturmer, who referred to the ‘common notion’:
that Aboriginal ‘mechanisms’ (customary law, traditional decision-making procedures, etc.) should be extended to treat the whole new body of substantive matters with which they now have to deal. It is certainly demonstrable that the Aboriginal mechanisms alluded to continue to exist. Indeed, unless those people who are willing, for whatever reason, to foist new ways of doing things on Aboriginal societies, are also prepared to come to grips with the ways in which things are already done, their ‘interventions’ are doomed to failure. But it is a far cry from arguing this to accepting that the ‘mechanisms’ can be ‘extended’ in new conditions to meet what, in departmental jargon, are often described as ‘the new challenges’. Not only do the exact nature of the ‘mechanisms’ and the precise range of the matters over which they ‘play’ remain to be identified, it is also palpably the case that the ‘mechanisms’ do not ‘engage’ the whole new array of matters which flow from the contact situation.
690. Underlying Difficulties. The history of ‘recognition of indigenous law’, of recognising some indigenous capacity over law and order matters, in Australia and in other comparable jurisdictions, has largely been one of trying to establish formal ‘courts’ or other similar mechanisms, usually run by the indigenous people, to which authority could be transferred or which could be recognised. But if the aim is only to recognise local customary laws, then (in societies lacking courts or similar agencies and relying on less formal, less centralised procedures based on kinship and locally-recognised power) attempts to ‘find’ or ‘erect’ official machinery are misconceived. Such attempts might have some value if the aim were to ‘indigenise’ the existing criminal justice system, that is, to recruit Aborigines to perform some or all of the tasks of law-applying and law-enforcement as part of the general legal system. Equally, it would have some value if the aim were to confer a degree of autonomy on Aboriginal groups with respect to law and order matters. These last two aims are not necessarily consistent with each other. If ‘indigenisation’ were the aim then the existing legislative structure would be taken for granted, with emphasis being placed instead on finding suitable roles (new, existing or modified) which Aborigines may fill within it. If autonomy were the aim, then the focus would be on the scope of autonomy and on identifying the relevant unit of government. Such an exercise, even if thought desirable by outsiders could not occur without the active support and initiative of the Aboriginal group concerned, and need not lead to the ‘recognition’ or ‘application’ of customary laws (though it may do so). Aboriginal groups may be more concerned with the kind of rules applied within their group, or with their administration and policing, than with their application by ‘courts’. They would be at least as likely to propose new or hybrid solutions to their problems at the legislative or executive levels as to propose customary ones, in particular since many of these problems are perceived as new or introduced, and not necessarily to be .resolved through the application of customary laws even in some modified form.
691. Approaches for the Commission. Clearly there are a number of different approaches in the field of ‘law and order’ in Aboriginal communities which might be taken. These include:
the recognition of local customary laws and of the authority of the group to apply customary law procedures and sanctions;
the conferral of autonomy in law and order matters (whether or not alongside other matters) on particular Aboriginal groups. This is likely to include both customary and non-customary matters, and would certainly involve a degree of control over outsiders;
the creation of Aboriginal courts to hear defined offences, whether customary or not, committed within an Aboriginal community;
the use of Aboriginal personnel (e.g. Aboriginal police, police aides, justices of the peace) in applying the general legal system to Aborigines.
The difficulty is that the Terms of Reference appear only to envisage the first of these approaches, while in Australia and some other countries all or most of the emphasis has been on the third and fourth. Aboriginal groups would probably emphasise the second. These questions will be returned to in Chapter 31. But whatever restrictions the Terms of Reference may impose on the recommendations or proposals the Commission can make, it is undesirable to consider the first approach in isolation from the others. The following Chapters of this Part examine what practical models are available for adoption by Aboriginal groups and what changes in practices or procedures might be made to accommodate Aboriginal views and needs.