Summary of Arguments

127. General Conclusion. In the Commission’s view, the objections to recognition set out in this Chapter are either not objections to recognition as such (as distinct from considerations in framing proposals for recognition), or are not persuasive, for the reasons given. On the contrary there are good arguments for recognising Aboriginal customary laws, including in particular:

  • the need to acknowledge the relevance and validity of Aboriginal customary laws for many Aborigines;

  • their desire for the recognition of their laws in appropriate ways;

  • their right, recognised in the Commonwealth Government’s policy on Aboriginal affairs and in the Commission’s Terms of Reference, to choose to live in accordance with their customs and traditions, which implies that the general law will not impose unnecessary restrictions or disabilities upon the exercise of that right;

  • the injustice inherent in non-recognition in a number of situations.

The approach adopted in this Report towards recognition of Aboriginal customary laws is also consistent with stated policies and those principles relating to Aboriginal affairs which enjoy substantial bipartisan support at federal level.[85] Before reaching any definite conclusion, however, it is necessary to examine in detail two key arguments against recognition. These revolve around questions of discrimination, equality and human rights which are basic to the Reference. They are discussed in the following chapters.

[85]See para 107.