84. Lessons from Experience. This summary gives a general indication of the extent to which, and ways in which, Australian courts and legislatures already recognise Aboriginal customary laws and traditions. It is true that such recognition tends to be limited and to represent a specific response to particular situations or needs. But the range of legislative and judicial responses provides a background against which proposals for further recognition must be considered, and it may also suggest ways in which recognition should be extended. In this sense both the earlier attempts at forms of recognition,[60] and the present range of provisions and rules, are instructive. Few of the issues considered in this Report are new. In an area as diverse, contentious and difficult as this, a sensible approach to reform may well be to build on the best aspects of present practice, and to draw upon the experience and suggestions made by those who have examined the issues over the years.

85. The Need for a Comprehensive Review. The value of this accumulated experience may be conceded, but the fact remains that the recognition of Aboriginal customary laws by the general law has continued to be erratic, uncoordinated and incomplete. One major reason is that recognition has occurred by way of exceptions from a general, and continuing, rule of non-recognition. Moreover no thoroughgoing review of the question of recognition has taken place in recent decades. The need for such a review, as required by the Commission’s Terms of Reference, is clear. It may be that in particular legal contexts, Aboriginal customary laws are already sufficiently recognised, or that further recognition now is undesirable in principle. But it cannot be said that the present situation is the result of any consistent or coherent review of basic policy issues and their application in practice. Such a review is undertaken in the remaining Parts of this Report.

[60]Outlined in ch 4.