1026. The Options. Several different approaches could be taken to the implementation of the recommendations in this Report. The ultimate decision on implementation is, of course, not one for the Law Reform Commission. However the Commission has a responsibility to outline the constitutional powers which are available and the federal-State issues which arise, and to state its preferred approach.
Commonwealth Legislation to Cover the Field. As outlined in para 1012-1021, the Commonwealth has extensive powers to make special laws for Aboriginal people. Relying on this power the Commonwealth could enact legislation for the recognition of Aboriginal customary laws and the related matters covered in this Report. This legislation could override or replace any existing State and Territory legislation which dealt with matters covered by the Commission’s recommendations. It would be a uniform law applicable in all States and Territories.
Supplementary Commonwealth Legislation. An alternative would be a more limited form of Commonwealth legislation. The legislation would still be based on the Commonwealth’s constitutional powers under s 51(26), but would not exclude State and Territory legislation which already complied with or was consistent with the provisions of the Commonwealth legislation. This result could be achieved in a number of ways. The legislation could specifically state that State and Territory legislation would continue to operate alongside the Commonwealth legislation to the extent that the two were consistent. Alternatively, the Commonwealth legislation, or certain parts of it, could be excluded from applying in those States and Territories which had legislation enacting at least equivalent standards.
Commonwealth Legislation for the Territories Only. A more limited approach would be for the Commonwealth to pass legislation for the Australian Capital Territory (and perhaps also the Northern Territory) which would be model legislation which the States might later adopt. The first legislation to recognise Aboriginal land rights in Australia, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), followed this approach. While there are many Aborigines living in accordance with their customary laws in the Northern Territory who would benefit from this approach, it has little else to commend it. It precludes Aborigines living in the States from the benefits of the Commonwealth legislation, and it would be unlikely to lead to the desired goal of legislation for the recognition .of Aboriginal customary laws throughout Australia. Moreover the Northern Territory, though constitutionally a federal Territory under s 122, has since the Northern Territory Self Government Act 1978 (Cth) been treated for many purposes of federal-State relations as if it were a State. There is little to be said for drawing a distinction between the Northern Territory and the States, with respect to laws the Commonwealth has equal power to make under s 51 (26) and s 122.
Co-operative Federalism. Another alternative is for the States and the Commonwealth to come to an agreement on the action that should be taken with respect to the matters dealt with in this Report. This might lead to legislation having Australia-wide coverage by way of a co-operative scheme, similar to that operating for the national regulation of companies and securities. The latter scheme involves the Commonwealth exercising its power to pass relevant legislation for the Australian Capital Territory, with each of the States passing identical legislation. In this way uniform national legislation is achieved. Setting up such schemes is however a problem. All the States and the Commonwealth have to agree on the approach to be taken and on the legislation to put it into effect. To be fully effective all States must participate and uniformity is lost as soon as the Commonwealth or any one State changes its legislation, as it is free to do, from the agreed form.
Commonwealth Legislation under Other Powers than s 51(26). A fifth option is for Commonwealth legislation to be passed only in those specific areas within Commonwealth legislative power apart from s 51(26) (eg social security and, perhaps, traditional marriage), but for the Commonwealth to encourage the States and the Northern Territory to implement the recommendations so far as they concern all the other areas covered in this Report. In the Commission’s view it is an inadequate response to the Terms of Reference. The likely result is that in these areas nothing, or nothing much, would be done.
1027. Cost Implications of Different Options. Some additional costs will be incurred by the Commonwealth, the States and the Territories if the Commission’s recommendations for the recognition of Aboriginal customary laws are implemented, whether this were to be done by Commonwealth legislation or by the States and Territories. From the Commonwealth perspective the funding of child welfare services for Aboriginal children, of Aboriginal legal services in relation to compliance with the interrogation rules, and of social security payments arising from the recognition of traditional marriages under the Social Security Act 1947 (Cth) are the most significant areas. Aboriginal child welfare and legal services are already areas of substantial federal financial involvement, and the provisions recommended in these fields, although they may involve some additional costs, can be justified as making the provision of these services more effective, in the interests of the Aboriginal people concerned. The cost implications for the Social Security Act 1947 (Cth) were discussed in Chapter 16. As a Departmental Working Group concluded, traditional marriages should be recognised for the purposes of the Act, even though this may increase costs to some degree. In many cases what would be involved is the reclassification of a benefit which is already paid as a special benefit, as the appropriate pension or other entitlement, so that the increase in costs is not likely to be significant. There will also be certain costs for the States and Territories. Some additional measures of consultation may be necessary under the proposed child placement principles, although in practice, the Commission has been told, such consultation is already occurring. Many of the recommendations relating to criminal law and evidence and procedure concern matters which arise now under the general law (eg fitness to plead, the exercise of sentencing discretions). The interrogation rules will place a greater workload on the police, although there may also be savings, if the rules are’ complied with, through avoiding lengthy arguments about the reliability of confessional evidence. Overall, it is unlikely that legislation for the recognition of Aboriginal customary. laws Would create significant additional costs to the States and Territories. The administrative and financial consequences of implementation are likely to be minor, and in any event they Should not stand in the way of implementation of the recommendations for the recognition of Aboriginal customary laws. The overriding consideration, in the Commission’s view, is the desirability of enacting the provisions recommended in this Report. Arguments about the administrative and other costs of implementation do not outweigh this. Nor do they support the conclusion that legislation to implement the Report should be enacted by the States and the Northern Territory, rather than the Commonwealth.
1028. The Commission’s Approach. Taking into account the result of the 1967 Referendum, the fact that Aborigines. live in all States and Territories, and the special problems Aboriginal people face, the welfare of Aboriginal people in Australia is a national issue and one that should, as far as possible, be dealt with through a coherent national policy. This is particularly so at the level of the basic standards to be applied. The Commonwealth has a clear legislative responsibility, in cases where State or Territory laws do not establish adequate or appropriate rules responding to the special needs of Aboriginal people. This is the case even though it may be more efficient for the implementation of these standards to remain with existing State or Territory officials or bodies. Consistently with this principle, the recognition of Aboriginal customary laws as recommended in this Report should be carried through by means of a federal Act applicable in all States and Territories and relying on the full range of the Commonwealth’s constitutional powers. This view was generally supported by Aboriginal people and their organisations, who looked to the Commonwealth to remedy deficiencies in the law and its administration as it applies to Aborigines, through the exercise of the constitutional power granted in 1967. A federal Act should not, however, preclude the operation of State and Territory laws which are capable of operating concurrently with the federal legislation and are consistent with the approach taken by the Commission. Thus, the Commission favours the second option outlined in paragraph 1029. Several techniques have been adopted, in the draft legislation set out in Appendix 1, to achieve this result.
General declaration of intent. The draft legislation contains a declaration of Parliament’s intent that the Act is not to affect the operation of a State or Territory law so far as that law furthers the objects of the Act and is capable of operating concurrently with it. This reduces the operation of s 109 of the Constitution in avoiding indirect or inferred inconsistency with the proposed legislation.
Exclusion by regulation. In the case of the child placement principles recommended in Chapter 16, the Governor-General is given the power to exclude the operation of the provisions implementing the principles in relation to a State or Territory where the law of that State or Territory contains provisions to substantially the same effect as the child placement principles.
Residual provisions. A number of the proposed provisions will apply only where the relevant State or Territory law does not make equivalent provision. This is the case, in the legislation set out in Appendix 1, with legitimation through traditional marriage, with the partial customary law defence to murder, with the sentencing discretion in murder cases and with the right to give unsworn evidence. Each of these will only apply if State or Territory law does not achieve the same result.
Additional powers. A number of provisions confer powers upon courts or tribunals in terms which clearly do not affect, or (in cases where there may be doubt) are expressed not to affect other powers of the court or tribunal. These powers are thus supplementary, and do not supplant existing powers under State or Territory law. This is the case, in the legislation set out in Appendix 1, with the provisions relating to comprehension of a guilty plea, submissions on sentence, group evidence, confidential communications, and confessing a breach of customary laws.
The draft legislation, in the Commission’s view, strikes the right balance between minimum interference in matters otherwise governed by State (or Northern Territory) law, on the one hand, and making adequate provisions for the recognition of Aboriginal customary laws, without regard to State or Territory boundaries, on the other hand.
1029. The Scope of Commonwealth Legislation. Not all of the Commission’s recommendations are included in the draft legislation set out in Appendix 1. The principal areas covered in the legislation are:
the recognition of Aboriginal traditional marriages.(cl 10-13, 18, 23)
legitimation of children of traditional marriages (cl 14-15)
an Aboriginal child placement principle (cl 16, Schedule)
traditional distribution of property (cl 17) and its relationship to family provision (cl 18)
taking Aboriginal customary laws into account for the purposes of the criminal law, in particular:
· in determining intention and reasonableness (cl 19)
· in granting bail (cl 20)
· by way of a partial defence reducing murder to manslaughter (cl 22)
· in sentencing (cl 24)
aspects of the laws of evidence and procedure, in relation to the recognition and proof of Aboriginal customary laws, and in particular:
· determination of fitness to plead (cl 21)
· the interrogation of Aboriginal suspects (cl 29)
· confidential communications about customary laws (cl 30)
· Aboriginal dying declarations (cl 31)
· confessing breach of customary laws (cl 32)
· the composition of juries (cl 33)
· the right to make an unsworn statement (cl 34)
· the proof of Aboriginal customary laws (cl 26, 27, 28).
On the other hand general legislation has not been recommended for:
new Aboriginal community justice mechanisms
the recognition of traditional hunting, and fishing and gathering rights.
In relation to community justice mechanisms a range of options is put forward for consideration by Aborigines and their organisations, and by State and Territory legislators. No one model is appropriate for all of Australia, and the Commonwealth’s powers in this area are limited. In relation to hunting and fishing it is the orderly management of the resource that is important, and special laws dealing with one aspect of resource use (for example traditional hunting) in isolation from either laws for the management of the resource in question are accordingly undesirable. Instead certain guiding principles are suggested which should form the basis of State and Territory legislation, and amendments are proposed to various Commonwealth Acts in respect of resources which the Commonwealth manages or controls, which reflect these principles.