Administrative and Political Constraints of the Federal System

1022. Administrative and Political Constraints. More significant than questions of constitutional power are the administrative and political constraints of the federal system, a matter on which the Australian situation has much in common with that in Canada and the United States. In many areas at present, legislation affecting Aborigines is predominantly State or Territory legislation, and administrative involvement with Aborigines occurs through State or Territory agencies. There are exceptions to this generalisation (especially in the area of funding and employment schemes through the Commonwealth Departments of Aboriginal Affairs and Social Security),[1959] but in many other areas it remains true, and it is especially true of the criminal justice system. The police, the ordinary criminal courts, the prisons, probation and parole systems are all established under State or Territory law and run by State or Territory agencies. The same is true of the child welfare and juvenile justice systems. Many of the civil and criminal consequences of marriage (eg accident compensation, non-compellability) discussed in Chapter 14 are presently matters of State law. Thus very many of the questions considered in earlier Parts of this Report lie within existing fields of legal and administrative activity of the States and Territories. Commonwealth involvement in these areas would undoubtedly raise sensitivities.

1023. Service Delivery. In the field of Aboriginal affairs, federal-State issues do not only concern legal standards or political power: they also raise questions about the most effective ways of delivering services in relation to scattered and diverse Aboriginal communities. In a country as large as Australia it is not obvious that a centralised system of service delivery is the best one, even given that substantial Commonwealth financial involvement is likely to continue. However the present Reference, and the recommendations set out in Chapter 37, are concerned with the principles and standards to be applied by courts and officials dealing with Aborigines in contexts where Aboriginal customary laws are relevant, rather than with questions of financial assistance or the provision of services. The recommendations would not change the identity or structure of the Commonwealth, State or Territory bodies which exercise power in such cases, but would prescribe certain standards to be followed in the exercise of these powers. Moreover care has been taken to ensure that these standards are formulated with sufficient flexibility to take into account variations in the customary laws of different Aboriginal communities and the differing extent to which customary laws and traditions are followed in different parts of Australia.[1960] For these reasons the argument about efficient service delivery has very limited relevance to the question whether legislation implementing the Commission’s recommendations should be Commonwealth legislation.

1024. Consultation with the States during the Reference. During the course of work on the Reference the Commission distributed its Research Papers and Discussion Papers to relevant State and Territory Government Departments, and sought to maintain regular contact with Ministers and their Departments and officers. A considerable number of submissions on the Reference came from State and Territory Ministers and officials.[1961] Submissions were received from, and a meeting held with, a National Police Working Party representing State police forces and the Australian Federal Police. The Commission was on several occasions invited by various States and the Northern Territory to comment on draft legislation or other proposals affecting Aborigines. The Commission made submissions to the Northern Territory Government during the drafting of the Northern Territory Criminal Code.[1962] The Commissioner-in-Charge of the Reference addressed a meeting of senior child welfare administrators from all States and the Northern Territory about work on Aboriginal child welfare issues in the Reference. Some of the Commission’s Research Papers have been catalysts in some States to further research and reconsideration of policies relating to Aborigines. For example, the Commission’s Research Paper 15 on Aboriginal hunting, fishing and foraging rights[1963] in part prompted the reactivation of a South Australian Inter-Departmental Working Party to consider proposals for reform of wildlife and Crown land legislation with respect to traditional hunting and fishing rights.[1964]

1025. State Concerns. The Commission’s work during the course of the Reference encouraged debate and, in some jurisdictions, the reconsideration of existing or the enactment of new legislation, including legislation at State and Territory levels. Different considerations may arise when the question of Commonwealth legislation is raised. State opposition to the enactment by the Commonwealth of legislation may be based on the view that this would intrude into traditional areas of State administrative and legislative responsibility, even if such legislation were valid as special legislation under s 51(26) of the Constitution.[1965] Opposition may thus be based on arguments of State rights rather than on a proper assessment of the value of the proposals. The merits of the arguments for the recognition of Aboriginal customary laws should not be allowed to be obscured by disagreements about federalism, or about the appropriate machinery to bring about reform.