58. A Denial of Right. Thus the customary laws and practices of Aboriginal people were denied any formal recognition by the general law as it applied in Australia. Recognition was denied not only in cases arising between Aborigines and settlers, but also in cases between Aborigines themselves. The refusal to accord recognition extended to Aboriginal customary laws as they related to land, enabling vast areas of land to be granted to settlers by the Crown without regard to prior Aboriginal occupation.[132] Policies of non-recognition continued, with only minor exceptions or modifications, until recent times. Those exceptions or modifications were largely of an informal kind, without any secure statutory basis. They included the use of discretions not to prosecute and sentencing discretions, and, in some cases, policies of ‘benign neglect’ with respect to internal Aboriginal disputes. But general non-recognition remained the rule, whether in the context of the criminal law,[133] customary land rights,[134] recognition of Aboriginal marriages[135] or child care arrangements.[136] This general non-recognition has been changed in various ways over the last decade or so, but it nonetheless constitutes the essential background to the Commission’s Reference, and is its basic starting point. To what extent (if at all) and in what ways should the original denial of recognition now be reversed or varied, so as to take account of continuing Aboriginal adherence to various forms of their laws and traditions?

59. Recognition Now: Common Law or Legislation? In answering this question, it is first necessary to see to what extent the courts may be able, without any comprehensive legislative provision on the subject, to recognise Aboriginal customary laws and tradition under the present law. This could happen in two broad ways. First, the common law rules for the recognition of custom (or for the recognition of indigenous rights or institutions in territories acquired by the Crown) might be able to be used to recognise at least some aspects of Aboriginal customary laws. Secondly, apart from any common law rules dealing with custom as such, it may be that the general law (whether common law or statutory) already allows for various forms of recognition. These possibilities are discussed in turn in the following two Chapters.

[132]See para 47, and cf Castles, 2-3.

[133]cf Tuckiar v R (1934) 52 CLR 335.

[134]Mitirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.

[135]R v Neddy Monkey (1861) 1 W&W(L) 40; R v Cobby (1883) 4 LR (NSW) 355.

[136]See para 345.