1004. Summary of Proposals in this Report. This Part of the Report summarises the recommendations set out in Parts II-VII and discusses the two basic questions of implementation of these recommendations:
- whether they can and should be implemented by Commonwealth legislation under s 51(26) of the Constitution, and related federal/State issues (Chapter 38);
- the need for involvement of and consultation with Aboriginal people in any decisions about the recommendations, and in their implementation (Chapter 39).
The Commission’s recommendations, as set out in Parts II-VII, should first be summarised.
1005. Basic Principles. The Commission’s general conclusions on the Reference, as set out in Parts I and II of this Report, may be summarised as follows:
Scope for Recognition under the Existing Law
- The scope for recognition of Aboriginal customary laws through common law rules for the recognition of local custom or communal native title is very limited (para 62-3), and is inadequate to deal with the questions raised by the Commission’s Terms of Reference (para 63).
- The same conclusion applies to arguments for the recognition of Aboriginal customary laws through the re-examination of the status of Australia as a ‘settled colony’. A reclassification of Australia as a ‘conquered colony’, were it to occur, would not as such bring about appropriate forms of recognition of Aboriginal customary laws and traditions as these exist now (para 68).
- Although Aboriginal customary laws and traditions have been recognised in some cases and for some purposes by courts (para 70-5) and in legislation (para 76-84), this recognition has, on the whole, been exceptional, uncoordinated and incomplete (para 85).
- It is not necessary, constitutionally or otherwise, to spell out a detailed definition of who is an ‘Aborigine’. This question, so far as necessary, can be worked out as a case-by-case basis, in accordance with the broad approach so far taken in legislation and administrative practice and by the High Court (para 90-5).
- Nor is it necessary to frame a definition of ‘traditional Aborigine’ for the purposes of the recognition of Aboriginal customary laws. The application of any recommendations for recognition in appropriate cases is to be achieved by the substantive requirements of the provision in question (para 95).
- Torres Strait Islanders are a distinct group from Aborigines, and the recognition of their customary laws requires separate examination. However some at least of the recommendations in the Report are or may be appropriately applied to Torres Strait Islanders as well as to Aborigines (para 96).
- The Commission’s Terms of Reference do not extend to South Sea Islanders (para 97).
- There existed, in traditional Aboriginal societies, a body of rules, values and traditions which were accepted as. establishing standards or procedures to be followed and upheld. Despite numerous changes, such rules, values and traditions continue to exist in various forms (para 99).
- These rules, values and traditions can properly be described as ‘Aboriginal customary laws’ (para 100-101).
- Narrow legalistic definitions of Aboriginal customary laws are unnecessary and inappropriate (para 101). It will usually be sufficient to identify Aboriginal customary laws in general terms where these are recognised for particular purposes. But the form of definition will depend upon the kind of recognition, and its purpose (para 101).
General Considerations and Arguments about Recognition
Various objections to the recognition of Aboriginal customary laws have been made, including:
- the problem of unacceptable rules and punishments (para 114)
- secret aspects of Aboriginal customary laws (para 115)
- loss of Aboriginal control over their laws (para 116)
- the need to protect Aboriginal women (para 117)
- the community divisiveness that recognition could cause (para 118)
- the fact that Aboriginal customary laws have changed in many respects and no longer exist in their pristine form (para 119-121)
- the declining importance and limited scope of Aboriginal customary laws (para 122, 124)
- law and order problems in Aboriginal communities (para 123)
- the difficulties of definition (para 126).
These are either not objections to recognition as such (as distinct from considerations in framing proposals for recognition), or are not persuasive (para 217).
On the contrary there are good arguments for recognising Aboriginal customary laws, including in particular:
- the need to acknowledge the relevance and validity of Aboriginal customary laws for many Aborigines (para 103-5)
- their desire for the recognition of their laws in appropriate ways (para 106)
- their right, recognised in the Commonwealth Government’s policy on Aboriginal affairs and in the Commission’s Terms of Reference, to choose to live in accordance with their customs and traditions, which implies that the general law will not impose unnecessary restrictions or disabilities upon the exercise of that right (para 107)
- the injustice inherent in non-recognition in a number of situations (para 110-11, 127).
Discrimination, Equality and Pluralism
A particularly important argument against the recognition of Aboriginal customary laws is that it would be discriminatory or unequal, and would violate the principle of equality before the law (para 128). But special measures for the recognition of Aboriginal customary laws will not be racially discriminatory, nor will they involve a denial of equality before the law or equal protection as those concepts are understood in comparable jurisdictions, if these measures:
- are reasonable responses to the special needs of those Aboriginal people affected by the proposals;
- are generally accepted by them; and
- do not deprive individual Aborigines of basic human rights, or of access to the general legal system and its institutions (para 158-165).
In particular, to avoid problems of inequality or potential discrimination arising, measures for recognition should comply with certain guidelines:
- They should, as special laws, only confer rights on those Aborigines who, in the particular context, experience the disadvantages or problems which are the reasons for the provision in question.
- Aborigines should, wherever possible, retain rights under the general law (eg, to enter into Marriage Act marriages, to make wills).
- Any legislation should be no more restrictive of rights under the general law than is necessary to ensure fidelity to the customary laws or practices being recognised.
· Measures of recognition should not unreasonably withdraw legal protection or support from individuals (Aboriginal or non-Aboriginal) (para 165).
Where the most appropriate remedy to a problem is not a recognition of customary law as such but some more general provision, it is necessary to consider whether that provision can legitimately be applied to some class of Aborigines only, or whether the reasons for the provision apply equally to all members of the community. If the latter, the Commission should draw attention to the problem, without making recommendations for legislation applicable only to the more limited class (para 165).
These principles will also avoid or allay concerns at the recognition of Aboriginal customary laws based on arguments about the undesirability of legal pluralism or the diversity of laws (para 166-8).
There is some risk nonetheless that proposals for the recognition of Aboriginal customary laws could be seen to be divisive or could be an affront to public opinion, either in isolation or if associated with other measures. Assessment of this risk, and of its relevance to the range of proposals for legislation, is primarily a matter for the Parliament as the people’s representatives (para 169).
Ensuring other Basic Rights
Australia is neither required to recognise Aboriginal customary laws in any general way, nor is it prohibited from doing so, by any international obligations on minority or indigenous rights (para 171-8). However, such recognition, provided it preserves basic individual rights, is consistent with the spirit of the International Covenant on Civil and Political Rights, and especially with Article 27 of the Covenant concerning the rights of ethnic, linguistic and cultural minorities (para 175-8).
In securing basic human rights (including those specified in the Covenant), terms and ideas which imply a measure of cultural relativity may have to be applied by reference to the cultural community within which the case arose (including, by virtue of Art 27, a minority, ethnic or cultural group). But minority values, cannot as such justify the violation of basic human rights, any more than can majority values (para 184-92).
The impact of human rights standards on proposals for the recognition of Aboriginal customary laws depends on the particular proposal, and cannot be discussed in the abstract. The Commission believes that the recommendations in this Report do not involve violations of basic human rights for Aborigines or for other Australians. On the contrary, the need to respect the human rights and cultural identity of Aboriginal people supports the case for appropriate forms of recognition of Aboriginal customary laws (para 192-3).
The Commission’s Approach
- Aboriginal customary laws should be recognised, in appropriate ways, by the Australian legal system (para 194).
- The recognition of Aboriginal customary laws must occur against the background and within the framework of the general law (para 195).
- As far as possible, Aboriginal customary laws should be recognised by existing judicial and administrative authorities, avoiding the creation of new and separate legal structures, unless the need for these is clearly demonstrated (para 196).
- The issues of the extent and method of recognising Aboriginal customary laws need to be considered separately from any arguments about the federal system (para 197).
- Recognition of Aboriginal customary laws may take different forms, including:
- codification or specific enforcement of customary laws;
- specific or general forms of ‘incorporation’ by reference;
- the exclusion of the general law in areas to be covered by customary laws;
- the translation of institutions or rules for the purposes of giving them equivalent effect (eg marriage or adoption);
- accommodation of traditional or customary ways through protection’s in the general legal system (para 199-207).
The Commission does not believe that, as a general principle, codification or direct enforcement are appropriate forms of recognition of Aboriginal customary laws (para 200-2). Nor, at the present time and except in limited circumstances, is the exclusion of the general law (para 203). Specific, particular forms of recognition are to be preferred to general ones. So are forms of recognition which avoid the. need for precise definitions of Aboriginal customary laws, a notion which is to be understood broadly rather than narrowly (para 208).
Scope of the Report
Consistently with this approach, Parts III-VII of this Report examine the various areas in which recognition may be called for, and the ways in which this can best be achieved (para 209, 220). These areas include issues both of civil law and criminal law, of substantive law and of evidence and procedure (para 210), as well as consequential matters (para 214-16).
However in view of the detailed work being done by other bodies, and by the Commonwealth Government itself, the Commission has treated the question of customary rights to land as outside the scope of its inquiry (para 212). For similar reasons no separate investigation of the legal protection of Aboriginal artworks and the Aboriginal heritage is undertaken in the Report (para 213).
1006. Marriage, Children and Family Property. In Part III of this Report, the following recommendations were made for 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 de facto 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 future) (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 310-2).
- 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).
State and Territory legislation for family provision (testator’s 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).
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).
1007. The Criminal Law and Sentencing. In Part IV of this Report the following recommendations were made for the recognition of Aboriginal customary laws in the area of the criminal law and sentencing.
Intent and Criminal Law Defences
In the context of the present Reference, there is no special justification for changing existing criminal law ‘defences’ which contain an objective element (eg provocation, duress, self-defence and excessive self-defence) so as to eliminate the objective test, provided that the courts can take Aboriginal customary laws into account in determining what the response of a ‘reasonable’ person would have been in the circumstances (para 426, 429, 431).
Neither duress, coercion, mistake nor the defence of claim of fight are generally applicable defences which would exonerate Aborigines who commit offences under the influence of their customary laws (para 430, 433, 435). Whether there should be such a direct defence is a separate question.
No special provision dealing with intoxication as an element in criminal liability is justified in the context of this Reference. However, the fact that a defendant was intoxicated should not’ necessarily exclude the application of other provisions recommended in this Part for the recognition of Aboriginal customary laws, in determining criminal liability (para 438).
Section 7(l)(b) of the Criminal Code 1983 (NT) should be kept under review, to ensure that it is not construed so as to bring about the conviction for murder of persons who lacked any intention to kill or do serious bodily harm at the relevant time (para 439).
Legislation should provide that Aboriginal customary laws and traditions should be able to be taken into account, so far as they are relevant, in determining whether the defendant had a particular intent or state of mind, and in determining the reasonableness of any act, omission, or belief of the defendant. Evidence to prove these questions should be admissible, a result which would be achieved by the general provisions proposed in this Report for the proof of Aboriginal customary laws (para 441).
An Aboriginal Customary Law Defence?
There is a distinction between a customary law defence applicable generally to offences of whatever kind, and a customary law defence to specific offences which are themselves a form of recognition of Aboriginal customary laws or of Aboriginal community authority. For example if it is sought to recognise land rights based on traditional Aboriginal occupation, it may also be appropriate to allow other persons to use the land provided their use is in accordance with or consistent with those traditions, and a specific customary law defence is one way of achieving this (para 446).
A customary law defence should not be available in cases of homicide, or of life threatening assault (para 447). Nor should a general customary law defence be available in other cases for other, lesser, offences. Problems of conflicts between the two laws are best dealt with in other ways (para 450).
A partial customary law defence should be created, similar to diminished responsibility, reducing murder to manslaughter. It should provide that, where the defendant is found to have done the act that caused the death of the victim in the well-founded belief that the customary laws of the Aboriginal community to which the defendant belonged required the act to be done, the defendant should be convicted of manslaughter rather than murder. The onus of proof in establishing these matters should lie on the defendant on the balance of probabilities (para 453).
Aboriginal Customary Law Offences
It is undesirable in principle, as well as impractical, to seek to codify Aboriginal customary laws as a basis for criminal liability (para 461) or to enforce those laws by way of a general mandate to the criminal courts (para 462).
In particular cases the ‘incorporation’ of Aboriginal customary laws as the basis for a particular offence may be desirable, especially to protect traditions, rules or sites from outside invasion or violation. Where problems arise, it is necessary to ask three questions:
· whether the matter can be adequately dealt with by the community under any by-law 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;
· whether some additional specific measures of protection are required (para 462, 465)
Consideration should be given to amending legislation such as the Cemeteries Act (NT) s 21 to allow for burials in accordance with Aboriginal customary laws, particularly in relation to burials on Aboriginal land, but possibly elsewhere also (for example on pastoral land), provided relevant permission’s are obtained (para 466).
Consideration should be given to enacting special measures to protect distinctive traditional designs and artwork (para 470).
Attention should be given by prosecuting authorities to the appropriateness of declining to proceed in certain cases involving customary laws (para 475). But the use of prosecution discretions is not a principal way in which Aboriginal customary laws should be recognised in the criminal justice system (para 478).
Prosecutorial discretions may be relevant in those cases where Aboriginal customary laws, without necessarily justifying or excusing criminal conduct, are a significant mitigating factor, and where the Aboriginal community in question has through its own processes resolved the matter and reconciled those involved. Factors relevant in such cases would include the following:
· that an offence has been committed against the general law in circumstances where there is no doubt that the offence had a customary law basis;
· whether the offender was aware he or she was breaking the law;
· that the matter has been resolved locally in a satisfactory way in accordance with customary law processes;
· that the victim of the offence does not wish the matter to proceed;
· that the relevant Aboriginal community’s expectations (or the expectations of each community, if there is more than one) are that the matter has been resolved and should not be pursued further;
· that alternatives to prosecution are available, eg a diversion procedure;
· that the broader public interest would not be served by engaging in legal proceedings (para 478).
These factors should be taken into account by police and prosecuting authorities in deciding whether to bring or maintain prosecutions in such cases, and they should be incorporated in prosecution guidelines at State and Territory level (para 478).
Formal diversion machinery, to divert offenders from the criminal justice system, is of limited relevance in customary law cases (para 488), though it may well be of value in the case of many minor offences (not necessarily involving customary laws) occurring in or involving members of Aboriginal communities (para 489).
Careful attention should be given, in the design and operation of any diversion or mediation schemes which exist or which may be established, to make those schemes as relevant as possible to Aboriginal offenders.
Consideration should also be given to a trial diversion scheme specifically involving Aboriginal offenders, in particular, young offenders, if such a scheme is sought by an Aboriginal group or community (para 489).
Relevance of Aboriginal Customary Laws in Sentencing
Although the defendant’s (or the victim’s) consent to traditional Aboriginal dispute-resolving processes (eg spearing) is relevant in relation to bail, in sentencing and in prosecution policy, the recognition of this aspect of Aboriginal customary laws is not to be achieved through the existing law relating to consensual assault or through changes to that law (para 503).
The courts do already recognise Aboriginal customary laws in the sentencing of Aboriginal offenders, to a considerable degree. In considering reform, it is helpful to build on the existing experience in this field, where necessary reinforcing or elaborating on it (para 491-7, 504).
The courts have recognised a distinction, which in the Commission’s view is fundamental, between taking Aboriginal customary laws into account in sentencing, on the one hand, and incorporating aspects of Aboriginal customary laws in sentencing orders, on the other (para 504). In applying that distinction, the following propositions have been recognised:
· A defendant should not be sentenced to a longer term of imprisonment than would otherwise apply, merely to ‘protect’ the defendant from the application of customary laws including ‘traditional punishment’ (even if that punishment would or may be unlawful under the general law) (para 505).
· Similar principles apply to discretions with respect to bail. A court should not prevent a defendant from returning to the defendant’s community (with the possibility or even likelihood that the defendant will face some form of traditional punishment) if the defendant applies for bail, and if the other conditions for release are met (para 506).
· Aboriginal customary laws are a relevant factor in mitigation of sentence, both in cases where customary law processes have already occurred and where they are likely to occur in the future (para 507-8).
· Aboriginal customary laws may also be relevant in aggravation of penalty, in some cases, but only within the generally applicable sentencing limits (the ‘tariff’) applicable to the offence (para 509).
· Within certain limits the views of the local Aboriginal community about the seriousness of the offence, and the offender, are also relevant in sentencing (para 510).
· But the courts cannot disregard the values and views of the wider Australian community, which may have to be reflected in custodial or other sentences notwithstanding the mitigating force of Aboriginal customary laws or local community opinions (para 511).
· Nor can the courts incorporate in sentencing orders Aboriginal customary law penalties or sanctions which are contrary to the general law (para 512-13).
· In some circumstances, where the form of traditional settlement involved would not be illegal (eg community discussion and conciliation, supervision by parents or persons in loco parentis, exclusion from land) a court may incorporate such a proposal into its sentencing order (eg as a condition for conditional release or attached to a bond), provided that this is possible under the principles of the general law governing sentencing. Care is needed to ensure appropriate local consultation in making such orders, and flexibility in their formulation. In particular it is important that anyone into whose care the offender is to be entrusted, is an appropriate person, having regard to any applicable customary laws (eg is in a position of authority over him, and not subject to avoidance relationships), has been consulted and is prepared to undertake the responsibility (para 512).
· An offender’s opportunity to attend a ceremony which is important both to him and his community may be a relevant factor to be taken into account on sentencing, especially where there is evidence that the ceremony and its associated incorporation within the life of the community may have a rehabilitative effect. However initiation or other ceremonial matters cannot and should not be incorporated in sentencing orders under the general law (para 515).
The Commission endorses these principles which strike the right balance between the requirement that the courts cannot incorporate or require traditional punishments or other customary law processes to occur as a condition to the release of offenders or for the mitigation of punishment, and the need to take account of traditional Aboriginal dispute-settlement procedures and customary laws (para 516).
A general legislative endorsement of the practice of taking Aboriginal customary laws into account is appropriate. It should be provided in legislation that, where a person who is or was at a relevant time a member of an Aboriginal community is convicted of an offence, the matters that the court shall have regard to in determining the sentence to be imposed on the person in respect of the offence include, so far as they are relevant, the customary laws of that Aboriginal community, and the customary laws of any other Aboriginal community of which some other person involved in the offence (including a victim of the offence) was a member at a relevant time (para 517).
In addition it should be provided that, in determining whether to grant bail and in setting the conditions for bail, account shall be taken of the customary laws of any Aboriginal community to which the accused, or a victim of the offence, belonged (para 517).
A sentencing discretion to take Aboriginal customary laws into account should exist even where a mandatory sentence would otherwise have to be imposed (in particular, in murder cases) (para 522).
Related Evidentiary and Procedural Questions
Existing powers and procedures to call evidence or adduce material relevant to sentencing in Aboriginal customary law cases should be more fully used. These include in particular:
· the prosecution’s power to call evidence and make submissions on sentence (para 526)
· the use of pre-sentence reports (para 529).
Defence counsel should not be expected to represent the views of the local Aboriginal community or to make submissions on the relevance of Aboriginal customary laws contrary to the interests of or otherwise than as instructed by the accused (para 527).
Separate community representation is, in most cases, not appropriate (para 528).
To reinforce the need for proper information as a basis for sentencing, in cases where Aboriginal customary laws or community opinions are relevant, legislation should specifically provide that, where a member of an Aboriginal community has been convicted of an offence, the court may, on application made by some other member of the community or a member of the victim’s community, give leave to the applicant or applicants to make a submission orally or in writing concerning the sentence to be imposed for the offence. The court should be able to give leave on terms (eg as to matters to be dealt with, or not dealt with in the statement) (para 531).
Other Sentencing Issues
There is no reliable evidence of discriminatory sentencing practices in cases involving Aborigines at Supreme Court or District Court level in recent years although more detailed studies, properly controlled for the many variables, are needed (para 533).
However the situation in some courts of summary jurisdiction (especially those staffed by justices of the peace) is different (para 534). Steps should be taken to ensure that justices of the peace sitting in ordinary courts of summary jurisdiction should no longer have power to imprison offenders, and that default imprisonment is not used as a device where imprisonment itself is not an available sentencing option (para 534).
Further attention needs to be given to associated problems of juvenile offending, and petrol-sniffing. However these are largely social problems, beyond the power of the criminal justice system to resolve (para 537).
Alternative sentencing options for Aboriginal communities need to be developed, taking into account local circumstances and needs, and especially in conjunction with local justice mechanisms presently in existence or established in the future (para 539-41). But extended gaol sentences should not be served in local lock-ups, nor should local longer-term gaols be built in an attempt to deter local offenders (para 536, 641).
1008. Evidence and Procedure. In Part V of this Report, the following recommendations were made for the recognition of Aboriginal customary laws in the area of evidence and procedure.
Police Investigation and Interrogation
To the extent that the general law of police interrogation does not provide equivalent safeguards, there need to be special rules protecting Aboriginal suspects under police interrogation, to help ensure the reliability and voluntariness of confessions or admissions made (para 561-3).
These rules should apply to all Aborigines whose difficulties of comprehension of their rights under interrogation, and of the meaning of what is said, warrant such protection (para 565). This is to be achieved by focussing on whether the suspect genuinely understood the caution and the questions, and was not merely deferring to authority in the answers given. No separate test based on ‘disadvantage’ is necessary (para 565).
Admissions or confessions obtained in consequence of a contravention of the interrogation rules should not be admissible unless the court is satisfied that, in the circumstances, the suspect:
- understood the caution (ie, understood that there was no requirement to answer questions and that any answers might be used in evidence);
- understood the nature of the questions put;
- did not answer merely out of deference to authority or suggestibility (para 565, 570).
The interrogation rules should require the presence of a prisoner’s friend when a suspect is in custody or is being interrogated in respect of a serious offence. There should be a preference for a prisoner’s friend who has been nominated by the local Aboriginal legal aid organisation or who is a barrister or solicitor. If no such person is reasonably available, then a prisoner’s friend may be another person chosen by the suspect. The prisoner’s friend should not be a police officer, an accomplice in the suspected offence, or a person the police reasonably believe should be prevented from communicating with the suspect (eg with a view to destroying evidence or intimidating a witness) (para 568).
The interrogation rules should require notification of an Aboriginal legal service in cases where the suspect is in police custody or where the offence in question is a serious one, unless interrogation is necessary without delay to avoid danger to persons or serious damage to property or unless the prisoner’s friend present is a lawyer or Aboriginal legal service nominee (para 569).
The interrogation rules should also apply to admissions given in the course of other investigatory steps (such as re-enactments or identity parades) which require the presence and co-operation of the suspect, but they should not prevent the admission of material evidence (para 571).
Waiver ought not to be a separate aspect of the rules (para 572).
The basic interrogation rules should be stated in legislation together with the associated admissibility rule (para 573).
No specific change is recommended (para 577), apart from the use of existing procedural powers in particular cases to avoid specific difficulties which may arise (para 578).
Fitness to Plead
Legislation should provide that, in a criminal proceeding against an Aboriginal defendant who appears not to be fluent in English, the court should not accept a plea of guilt unless it is satisfied that the defendant sufficiently understands the effect of the plea, and the nature of the proceedings. If necessary, the court should adjourn the proceedings to allow legal advice or an interpreter to be provided, to assist in explaining the plea and its effect (para 585).
Aborigines and Juries
No special provision excluding jury trial for Aborigines is justified (para 588-9).
Attention should be given to jury selection procedures (including the preparation of jury-rolls) to help ensure that a multi-racial society is better reflected in the composition of juries. But there should be no specific requirement of Aboriginal representation on juries where Aboriginal defendants are on trial (para 594).
The court should have power, on application by a party before the jury is empanelled, to make appropriate orders to ensure that a jury of a particular sex is empanelled, where under Aboriginal customary laws evidence to be given in the case can only be given to persons of that sex, the order is necessary to allow the evidence to be given, and having regard to other relevant matters (including other evidence to be given) the court considers the order should be made (para 595).
Existing programs for the training and accreditation of Aboriginal interpreters should be supported and extended. The aim should be to ensure that interpreters are available where needed at all stages of the criminal justice process (ie during police interrogation, as well as in the courts) (para 600).
Legislation should provide that an Aboriginal defendant may give unsworn evidence unless the court finds that the defendant is not disadvantaged in relation to the giving of evidence in the proceeding, having regard to any relevant condition, characteristic or disability ‘of the defendant, and whether for this reason the defendant is likely to be unfairly prejudiced by cross-examination (para 604).
This provision should not apply if the defendant is otherwise entitled to make an unsworn statement in the proceeding in question (para 604).
The statement should be made by the defendant personally, or given by counsel on his or her behalf. Counsel should be able to remind the defendant of any other matter which should be referred to in the statement (para 604).
The prosecutor should not be permitted to comment on the defendant’s choice to give unsworn evidence, and any comment made by the judge should not suggest that that choice was made because the defendant believed he or she was guilty, or that unsworn evidence is necessarily less persuasive than sworn evidence (para 605).
In order to resolve any doubts about the law, it should be declared that dying declarations made by Aborigines shall not, by reason of their adherence to traditional beliefs, be held inadmissible on grounds of any lack of belief in a religious sanction or supernatural judgment (para 576).
Proof of Aboriginal Customary Laws
Legislation should provide that evidence given by a person as to a matter of Aboriginal customary laws or traditions is not inadmissible on the grounds that it is hearsay or opinion evidence if the person giving the evidence:
· has special knowledge or experience of the customary laws of the community in relation to that matter; or
· would be likely to have such knowledge or experience if such laws existed.
It should also be stated that such evidence is admissible, notwithstanding that the question of Aboriginal customary law is the issue or a substantial issue in the case (para 642).
Aboriginal Witnesses: Group Evidence and Authority to Speak
Lawyers, judges and administrators should be aware of problems for some Aboriginal people arising because under Aboriginal tradition they lack authority to speak, or to speak alone, on a particular matter (para 645).
Courts and tribunals should be given express power to allow two or more members of an Aboriginal community to give evidence pertaining to the customary laws of that community together, where this is necessary or desirable (para 648).
Secrecy, Confidentiality and Aboriginal Customary Laws
Legislation should confer specific power to hear evidence in camera, to exclude certain persons (eg members of the opposite sex to the witness) from the court or to take other steps to protect secret information, where this is necessary, on the balance of relevant considerations, in the interests of justice (para 656).
There should be an express exemption in the Sex Discrimination Act 1984 (Cth) for acts done, and judicial, administrative or other restrictions imposed on the giving of information which relates to the religious, ritual or ceremonial life of Aboriginal communities in accordance with their traditions, as well as for customary law restrictions on entry to land for particular purposes (para 470, 656).
The courts should have express power, where necessary, to protect confidential communications or records relating to the customary laws of an Aboriginal community. In some circumstances it may be necessary for the court to exclude certain evidence altogether. Before doing so the court should be required to weigh the likelihood of harm to interested persons, to the Aboriginal community concerned, and to any confidential relationship or class of such relationships, against the importance of the evidence, by whom it is called and the nature of the proceeding (para 661).
There should be no special class of anthropologist-informant privilege (para 661).
Privilege against Self-Incrimination
The courts should be given power to excuse a witness from answering a question which tends to incriminate the witness under his or her customary laws. This power should be exercised unless the court finds that the desirability of admitting the evidence outweighs the likelihood of harm to the witness, to some other member of the Aboriginal community concerned, or to the Aboriginal community itself (para 665).
Assessors, Court Experts and the Proof of Aboriginal Customary Laws
No special provision should be made for assessors, or court experts, to assist in the proof of Aboriginal customary laws (para 672-5).
Legislation should expressly confer power on the court to adjourn to enable a pre-sentence report to be obtained from a person or persons with special expertise or experience, in any case where considerations of Aboriginal customary laws or traditions are relevant in sentencing (para 676).
1009. Local Justice Mechanisms for Aboriginal Communities. The conclusions and recommendations contained in Part VI, relating to the establishment or continuation of local justice mechanisms in Aboriginal communities, are, for the reasons given in that Part, less precise and definite in a number of respects than the conclusions and recommendations in other parts of this Report. Those conclusions and recommendations can be summarised as follows:
Problems of ‘law and order’ on Aboriginal communities, and of local involvement in the criminal justice system, involve issues of local self-government or autonomy which extend beyond the recognition of Aboriginal customary laws, or increasing Aboriginal participation in local courts or police forces (para 689-90, 809-10). Schemes such as the Northern Territory Community Government Scheme are appropriate (para 760), although if Aboriginal communities are to exercise broader responsibilities, adequate support and enforcement powers are necessary (para 762).
In many Aboriginal communities, unofficial methods of dispute resolution operate alongside the’ general legal system. Local resolution of disputes in these kinds of ways should be encouraged and supported (para 720).
Aboriginal Courts or Similar Bodies
There is only limited scope or demand for new official local justice mechanisms in Aboriginal communities (para 767, 813, 817).
There should be no general scheme of Aboriginal courts established in Australia (para 767, 813, 817, 819, 838).
Aboriginal courts or other official bodies may be appropriate in certain cases. If courts or similar bodies are set up it should only be at the instigation of and after careful consideration by members of the Aboriginal community concerned (para 805, 817). In considering such proposals, it is necessary to consider a wide range of alternatives, including special policing arrangements and dry area legislation. Justice mechanisms are only one avenue (para 756).
In addition there are certain basic requirements for courts or similar official bodies (para 818):
· The local Aboriginal group should have power to draw up local by-laws, including by-laws incorporating or taking into account Aboriginal customs, rules and traditions.
· Appropriate safeguards need to be established to ensure that individual rights are protected, eg by way of appeal.
· The by-laws should, in general, apply to all persons within ‘the boundaries of the community.
· If the court is to be run by local people, they should have power within broad limits to determine their own procedure, in accordance with what is ‘seen to be procedurally fair by the community at large’.
· The community should have some voice in selecting the persons who will constitute the court, and appropriate training should be available to those selected. In minor matters there need be no automatic right to legal counsel, though the defendant in such cases should have the right to have someone (eg a friend) speak on his behalf.
· The court’s powers should include powers of mediation and conciliation. A court which is receptive to the traditions, needs and views of the local people may be able. to resolve some disputes before they escalate, perhaps avoiding more serious criminal charges. The power to order compensation of some kind in such situations is one way of achieving this.
· Such courts will need appropriate support facilities.
· There should be regular reviews of the operation of any such court, undertaken in conjunction with the local community.
In establishing such courts care should be taken to minimise conflict with or the undercutting of local kinship and authority structures. Special attention needs to be paid to the composition of the court, which may need to be variable depending on the identity of those involved in cases before the court (para 742, 758, 855-6).
The Queensland Aboriginal courts should not be continued without broad local support (para 746). In addition:
· the Community Services (Aborigines) Act 1984 (Qld) should be amended to clarify the arrangements for community self-government and to avoid overlap with ordinary local government arrangements (para 743, 746).
· encouragement should be given to local Aboriginal councils to draft appropriate by-laws (rather than simply adopting a central model) (para 746).
So far the Aboriginal Communities Act 1979 (WA) has been applied only to more remote communities. That scheme is not a recognition of Aboriginal customary laws or of traditional authority. The scheme may be more successful in less traditional communities. In reviewing the Act, consideration should be given to its extension to urban areas and town camps (para 753, 756).
It is too early to assess the success of the Northern Territory Justice (Courts) Project. That project should be subject to an independent review in due course (para 764).
The Yirrkala Scheme should, if it is still sought by the Yirrkala people, be adopted for a sufficient period (at least 3 years) on a trial basis. The Yirrkala people should be given independent advice and appropriate support in establishing the scheme (para 832).
Consideration should be given, in any State or Territory where a local justice scheme is established, to a legislative provision allowing courts to defer to the operation of the scheme through, for example, adjournment or diversion (para 834).
There is scope for administrative recognition of Aboriginal customary laws. For this and other reasons greater knowledge and understanding on the part of criminal justice professionals in their dealings with Aborigines is needed (para 835).
Policing and Aboriginal Communities
Perhaps the greatest scope for administrative recognition rests with the police. In particular:
· There needs to be better communication between police and local Aboriginal communities about policing arrangements for those communities (para 805, 807). Police liaison committees can assist, but they should have broad terms of reference and access to senior police on issues of policy (para 872).
· There should be greater encouragement for some forms of self-policing, as an adjunct to regular police, including in urban areas (para 862-3, 866).
· Police training on Aboriginal issues should not be confined to initial or induction courses. The emphasis should be on post-induction and further education courses (especially after officers have had some experience of policing in Aboriginal areas) (para 876-7).
Police aide schemes should be seen as essentially temporary measures, with the longer term emphasis on self-policing, on increasing the number of Aborigines in regular forces, and on other measures (para 850, 865, 867).
In particular, police aide schemes should not be introduced without a clear articulation of needs and aims (para 857) and clear local support (para 853). If they are introduced, there should be:
· some facility for promotion of aides (after any necessary training) into the regular force (para 851, 854, 855).
· provision for periodic review (para 865).
Police aides should have adequate police powers and support, and should not be seen as second class police (para 853).
There should be careful selection of police officers to serve in areas with large Aboriginal populations, including efforts to increase the number of women police officers serving in those areas (para 877).
Aboriginal legal services should be encouraged and assisted to provide community legal education for Aboriginal communities (para 878).
No single approach or solution exists to the ‘problems of law and order’ in Aboriginal communities (para 838). Consideration should however be given to establishing a body to assist Aboriginal communities, police and government departments in the consideration of proposals, and in their implementation and review. Such a body should have an Australia-wide mandate, but could be a federal agency, a federal-State agency, a private body or preferably an Aboriginal agency linked to the Aboriginal legal services. Its terms of reference should not be limited to Aboriginal courts or justice mechanisms (para 839-41). This issue is discussed further in Chapter 39.
In other respects, Commonwealth involvement in this area, in particular having regard to constitutional constraints, is necessarily indirect (para 808).
1010. Hunting, Fishing and Gathering Rights. In Part VII of this Report, the following recommendations were made for the recognition of Aboriginal customary laws in relation to hunting, fishing and gathering rights.
Recognition should reflect the wide variety of legitimate interests such as conservation, effective management of natural resources, pastoral, and other residential interests and commercial interests. These interests mean that no overriding categorical recognition of traditional hunting, fishing and gathering practices is appropriate (para 972).
Given the need for unitary management of resources and in view of the extensive activity at State and Territory level the Commission does not consider it necessary or appropriate for detailed legislation to be enacted. However a set of general principles should be adopted, with detailed resource management and administrative decisions made at the appropriate levels in consultation with Aboriginal people affected by these decisions (para 973, 978). State and Federal legislation inconsistent with these principles should be amended (para 1003).
Traditional hunting and fishing should not be limited to consumption for food or sustenance. The broader notion of subsistence (including ceremonial exchange, satisfaction of kin obligations)is to be preferred. Consumption within the local family or clan groups should be regarded as traditional, even though elements of barter or exchange are present. But trade, exchange or sale outside the local community should be treated in the same way as other commercial dealings with the species in question. Relevant legislation or regulations should state this distinction expressly, to avoid misunderstandings or arguments (para 976, 985-7).
Traditional hunting should not be limited to indigenous species but may include introduced feral animals (para 975).
In deterring whether an activity is ‘traditional’, attention should be focussed on the purpose of the activity rather than the method. However the method may be relevant in some. cases (as will other factors such as whether the person was at the time under his customary laws entitled to kill the animal in question) (para 975, 977).
The following priorities are justified:
1. conservation and other identifiable overriding interests;
2. traditional hunting and fishing;
3. commercial and recreational hunting and fishing (para 985).
Conservation principles represent a legitimate limitation on the rights of indigenous people to hunt and fish as do interests of safety, rights of innocent passage, shelter and safety at sea (para 979-983).
Necessary conservation measures may require restrictions on traditional hunting and fishing interests. While Aborigines should be given control over resources on Aboriginal land, this control should nonetheless be subject to the principal of conservation (para 979-81, 994-9).
It may be necessary to prohibit or restrict traditional hunting or fishing by limiting the numbers taken, the methods by which or the areas in which they are taken, in the case of rare and threatened species (in particular those threatened with extinction). In this situation it is necessary to determine as far as possible in the circumstances both the status of the species concerned, and the threat to the species posed by traditional hunting and fishing, before long-term decisions are made to restrict traditional hunting and fishing (para 936, 981, 994-9). This requires not only an assessment of Aboriginal hunting and fishing practices but also an assessment of other threats to the species, for example commercial or recreational fishing. If restrictions are placed on traditional hunting and fishing practices, there should be regular monitoring and assessment of the situation in consultation with those affected (para 921, 995).
As a matter of general principle, Aboriginal traditional hunting and fishing should take priority over non-traditional activities, including commercial and recreational activities, where the traditional activities are carried on for subsistence purposes (para 984, 988). Once this principle is established the precise allocation is a matter for the appropriate licensing and management authorities acting in consultation with Aboriginal and other user groups (para 915, 987-8, 994-5).
Legislation in Queensland and the Northern Territory allowing for Aboriginal people as a group to take out community licences is preferable to the requirement that such a licence be taken out by a corporation or an individual (para 985).
Preferential rights to resource harvesting on Aboriginal land for commercial as opposed to community use may well be desirable, since this may provide advantages such as local employment. But this is a distinct question from the recognition of traditional hunting and fishing rights for subsistence and related purposes. Resource harvesting for commercial purposes as such is a matter for the relevant management authorities. The distinction between traditional harvesting for use within the community as distinct from commercial fishing (preferential commercial rights) should be maintained (para 987).
Recreational hunting and fishing should be treated, at best, no more favourably than traditional activities. The exact place of recreational viz-a-viz commercial fishing will depend on the circumstances, but it is hard to see that any justification exists for special measures for Aborigines who are engaged in recreational hunting and fishing. The Torres Strait Fisheries Act 1984 (Cth), the effect of which is to give private fishing an exemption from regulations applying to traditional fishing, should be amended along the lines proposed in para 1003 and care should be taken to ensure that there is no similar discrimination against traditional fishing, such as previously occurred under the Great Barrier Reef Marine National Park ‘A’ Zone in relation to the Cairns Cormorant Pass Zoning Plans (para 988).
It is reasonable that Aborigines be accorded access to traditional lands for the purposes of hunting, fishing and gathering, whether these lands are unalienated Crown lands or subject to leasehold or other interests. However where interests in the land are held by persons other than the Crown, it is necessary to take account of those interests, whether by negotiated access provisions or otherwise (para 989).
The linking of access rights to residents of a particular State or Territory creates difficulties (para 936-8).
Where hunting and fishing or gathering rights are granted on the basis of traditional affiliation, additional residential requirements are undesirable since they are likely to distort rather than to recognise or reflect Aboriginal perceptions or traditions. Where policies of disbursement or displacement have made such attachment impossible or extremely difficult, then access provisions based on residential or historical nexus are to be preferred (para 990-1).
There should be provision for areas of the sea adjacent to Aboriginal land to be preserved for traditional fishing. The. recommendations of the Western Australian Aboriginal Land Commissioner in this respect have much to commend them. Such protection should extend to Aboriginal and Torres Strait Islander fishing interests in seas adjacent to Aboriginal reserves in Queensland. The Great Barrier Reef Marine Park Act s 32 (7) should be amended to ensure that traditional fishing interests, and hence the possibility of sea closures and sea protection orders, are specific matters to be taken into account by the Great Barrier Reef Marine Park Authority in preparing its zoning plans. Ultimately there should be consideration of the need to preserve traditional fishing areas of the sea adjacent to trust areas within the Torres Strait Protected Zone (para 992).
For the purposes of such provisions some traditional association or special link with the sea, primarily involving areas of the sea adjacent to Aboriginal land, is necessary (para 993).
Consultation and Control
At both State and federal level, legislation should be amended to require consultation with Aboriginal people affected where steps are to be taken to restrict traditional hunting and fishing, to ensure that views of those Aborigines affected are taken into account in reaching any decision on the management of resources (para 994-7).
The Government should satisfy itself that consultations in relation to the Torres Strait and Great Barrier Reef Marine Park regions have been adequate so far. The Department of Aboriginal Affairs should be involved in this process, along with other Departments. Aborigines and Islanders should be fully informed of the legal implications of restrictions on their traditional activities. Adequate resources should be provided to government authorities and to Aboriginal and Islander bodies to ensure that such consultation takes place (para 997).
As far as possible Aborigines should be represented on bodies such as the Great Barrier Reef Marine Park Authority Consultative Committee, and on bodies advising the Protected Zone Joint Authority. Where necessary the Department of Aboriginal Affairs should also be represented (para 998).
There is no general formula for Aboriginal control in the management of scarce resources. The responsibility of governments to legislate for conservation of resources does not exclude the role of Aborigines in conservation and management; this is especially so on Aboriginal land. Boards of management should be entrusted with the management of Aboriginal land, including the power to regulate its use. There is no reason why Aboriginal local councils should not therefore be able to make by-laws regulating hunting and fishing on Aboriginal land; though it may be that this power should be limited to by-laws which are more restrictive than those passed by the responsible State or federal Government (para 999-1000).
There is thus no one model for formal power sharing in relation to the management of national resources. These questions of co-operation and control are properly matters for negotiation between the relevant Aboriginal bodies and Commonwealth or State authorities (para 999).
Given the need for unitary management of particular resources, no general Commonwealth legislative action is recommended. However an agreed statement of principles along the lines set out in this Report should be adopted by the Commonwealth and these principles taken up by the Commonwealth with the States and Territories in an attempt to ensure adherence to them.
Commonwealth and State legislation inconsistent with the principles set out above should be appropriately amended. In particular the Great Barrier Reef Marine Park Authority Act 1975 (Cth) s 32(2) should be amended to require the Authority to consult with Aboriginal people and Torres Strait Islanders, to take account of the implications of its operations on those people, and to require that consideration be given to special zoned areas for traditional fishing in much the same way as zoning for scientific purposes. The Torres Strait Fisheries Act 1984 (Cth) s 39 should also be amended to require appropriate consultation, and to ensure that priority is not inadvertently accorded to non-traditional fishing (para 1003).