Consultation and Implementation

1030. Aboriginal Involvement in Implementing the Report. The constitutional and administrative issues discussed in Chapter 38 are important. But more important is the point that the Commission’s recommendations relate to matters that are the province of Aboriginal people themselves. The Commission in the course of the Reference consulted widely with Aboriginal people and organisations about the issues involved in the Reference.[1976] As far as possible, it sought the views and reactions of Aboriginal people to proposals in its Research and Discussion Papers. These views and reactions are set out in this Report, as is the Commission’s assessment of its consultation process.[1977] The Commission found general support for the recognition of Aboriginal customary laws among the Aboriginal people with whom it consulted. But the Commission does not claim to speak on behalf of Aboriginal people. The proposals summarised in Chapter 37 are presented as the Commission’s views as to what appears fair and workable at this time. These proposals are framed from the point of view of the general legal system, with the aim of achieving justice in cases where Aboriginal customary laws and traditions are relevant. Achieving this aim requires continuing consultation by Government with Aboriginal people and appropriate Aboriginal organisations. The importance of this continuing consultation should not be underestimated: there is a need to ensure that the proposals in this Report, when they are implemented, enjoy the broad support of the Aboriginal people. As Dr Bell has pointed out:

Within Aboriginal organisations … consultative programs have been developed which suit both the organisations and their constituents. It is possible to lock into these channels of communication to inform Aboriginal people of the proposals for recognition. Implementation pro grams should similarly use these channels.[1978]

Indeed a number of the Commission’s proposals provide specifically for the involvement of relevant Aboriginal agencies (eg Aboriginal child care agencies in respect of the child placement principle and Aboriginal legal services in relation to many of the proposals in the area of the criminal law and sentencing, especially the interrogation rules).[1979]

1031. The Position of Torres Strait Islanders. As was pointed out in para 96, Torres Strait Islanders are recognised as a separate group. Although their legal situation has been touched on in a number of different areas in this Report,[1980] they were not specifically included in the Terms of Reference. This exclusion may be justified on the basis of differences in the customary laws and traditions of Aborigines and Torres Strait Islanders. But the Commission’s proposals do not seek to specify or codify those customary laws and traditions, but rather to respond to them in flexible and appropriate ways Generally speaking, the proposals are as capable of applying to Torres Strait Islanders as to Aborigines.[1981] Moreover it appears that many of the difficulties that Aborigines experience with the legal system and that are dealt with in this Report are also experienced by Torres Strait Islanders. Together these people represent the indigenous people of Australia, and they should as far as possible be dealt with ‘equally in the proposed legislation. For these reasons it is the Commission’s view that, while further inquiry may be needed into aspects of Torres Strait Islander customary laws, the recommendations in this Report should also be applied to Torres Strait Islanders, subject to consultation with them. The processes of consultation and involvement in the implementation of the Commission’s proposals, outlined in para 1030, should accordingly include Torres Strait Islander people and their organisations.

1032. The Need for Continuing Review. In the Commission’s view the proposals in this Report are suitable for immediate implementation. But the changes that are occurring in Aboriginal communities, and also in Australian society and the legal system generally, require that legislation implementing the recommendations should be kept under review to ensure that it continues to meet the needs of Aboriginal people. For the reasons given in para 219, the Commission does not support a ‘sunset clause’ in the legislation. But continuing review should take place, to enable changes to occur. These need not involve modifications to existing provisions. New problems may arise where Aboriginal customary laws and traditions require recognition. Thus this Report and the implementation of its recommendations should not be regarded as a final resolution of the question of recognising Aboriginal customary laws in Australian law. As one commentator has said, in a slightly different context:

… it is fundamentally inappropriate to think in terms of ‘settling’ Aboriginal rights or claims. What we need is not a final accounting, like a proceeding in bankruptcy, but a process of political empowerment giving Aboriginal communities some time and security to establish for themselves who they are, what they want to achieve, and what kind of relationship they feel they can have with Australia.[1982]

1033. Limits on the Scope of the Report. The Terms of Reference limit the Commission’s inquiry to the recognition of Aboriginal customary laws and related matters. Although a broad view has been taken of Aboriginal customary laws and what constitutes ‘recognition’, many issues were raised during the course of the Reference which were beyond the scope of the inquiry, but are important to Aboriginal people and require further investigation. These include:

  • Aboriginal Criminology. Only a small percentage of the offences committed by Aborigines are directly attributable to Aboriginal customary laws. The implementation of the recommendations in this Report will not solve all the problems for Aborigines coming into contact with the criminal justice system. Solutions are more likely to be found in reforms of the criminal law generally and in social and economic improvements. But there are too few detailed studies of cause and effect in this area, whether in terms of offending rates, the impact of imprisonment, or the prospects of different measures of rehabilitation. Insufficient work has been done on Aboriginal perceptions of imprisonment, or on how alternative sentencing measures work in Aboriginal communities.[1983] This makes the reform of the criminal justice system as it affects Aboriginal people, and monitoring the effectiveness or otherwise of any such reforms, much more difficult. A primary need is for a national collection of law and justice statistics which specifically identify Aboriginal offenders.[1984] Only in this way can an authoritative picture be developed of the type of offences committed by Aborigines and how they are dealt with by the courts. It might also enable further research into offences committed and more insight to be obtained into the reasons for them.

  • Alcohol and Aboriginal Offending. Most offences committed by Aborigines involve alcohol or are alcohol-related. Aspects of the relationship between alcohol, offences and customary laws have been referred to in this Report. Further work needs to be done, by and in consultation with Aboriginal people, on the nature of Aboriginal drinking,[1985] on the effectiveness of existing legislative provisions, and on developing other approaches to the problem.

  • Petrol Sniffing among Aboriginal Juveniles. As with alcohol, petrol sniffing is a cause of great concern in many Aboriginal communities. Petrol sniffing is not an offence but it often leads to other offences being committed, and has a significantly detrimental effect on health, the full scope of which has not been determined.[1986] It is an urgent problem, calling for research and action — though not necessarily for the imposition of new legal sanctions.[1987]

  • Social Impact of Legal and Other Changes. Where special rules or institutions are established by governments in Aboriginal communities, or general rules or institutions are changed in ways which may have significant impacts on them, studies need to be carried out in consultation with those communities about the effects of these changes.[1988] For example, properly founded assessments of how Aboriginal court systems affect traditional authority structures and the significance of relationships to kin and land in Aboriginal offending patterns are lacking.[1989] Anthropologists themselves acknowledge the need for greater knowledge about the ways in which legal practice is ‘embedded within the social formation of different communities’.[1990]

1034. A New Agency? Obviously there is an important role for existing bodies with expertise in these various fields. The Australian Institute of Criminology needs to be involved in a more detailed analysis of existing information, including more detailed studies of particular geographical areas and offences. The Australian Institute of Aboriginal Studies has an important role in sponsoring research and as a recorder and custodian of material. But there seems to be a broader range of needs, which are presently met, if at all, only in a decentralised and diffuse way. The specific requirements for consulting effectively with Aboriginal people and involving them in the implementation and review of proposals in this Report, discussed in para 1030-2, and the more general requirements for additional work to be done and measures to be taken in areas such as those listed in para 1033, together raise the question whether a new agency may not be necessary. Such an agency, under Aboriginal control, could be an intermediary between Australian governments and Aboriginal people in relation to legal and social issues. It could assist in tasks of education and training in these fields, and in the preparation and distribution of information (including information in Aboriginal, languages) to Aboriginal communities about available programs or proposals which may affect them. In these and in other ways it could assist in the important and difficult task of consultation with Aboriginal communities on such programs and proposals, and in collating and relaying the responses and demands of Aboriginal people. Of course, some of these functions are already performed by Aboriginal bodies in certain areas of Australia,[1991] and proposals for national organisations with at least some of these functions continue to be made.[1992] In Chapter 31 some of the possibilities for an agency to assist in the implementation of local justice mechanisms in Aboriginal communities were outlined.[1993] However despite the various needs, and in the absence so far of Aboriginal demands for such an agency, the Commission recommends that there be no official agency established to deal with these matters. In order to explain this conclusion, it is necessary to place the matters dealt with in this Report in a broader perspective.