38. Federal-State Issues

1011. Separate Considerations. As stated in para 220, the approach taken so far in this Report has been to consider whether, and in what ways, Aboriginal customary laws should be recognised, after consulting widely with Aboriginal people, their organisations, and others concerned. The question ‘what should be done?’ had to be considered first. Only after it has been answered should the second question, ‘By which authority should it be done?’, be dealt with.[1914] The need to draw a distinction between these two questions is clear. Questions of the recognition of Aboriginal customary laws need to be considered on their own merits, without being confused by consideration of almost equally difficult issues of federal constitutional law and federal-State relations. Hence Parts I-VII of this Report, apart from brief references to constitutional issues in relation to particular recommendations,[1915] have not considered in any detail the scope of the Commonwealth’s constitutional powers to make special laws for the people of any race, nor how these powers should be exercised. Nor, again with limited exceptions, has the issue of federal-State relations in the implementation of the Commission’s recommendations been considered.[1916] These questions must now be dealt with. This Chapter will discuss, first, the scope of constitutional power to implement the recommendations in this Report, and secondly, the broader implications of Commonwealth legislative involvement in this field, before outlining the Commission’s approach.

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