166. Other Related Objections to Recognition. Although the objections to recognition based on considerations of equality, equal protection and non-discrimination are the most important for the purposes of this Report, other related objections have been made. In particular it is sometimes said that legal pluralism, such as would be involved in the recognition of customary laws, is divisive and violates a principle of the unity of the law (especially in the criminal law). the notion that Australians are, and should be, subject to the ‘one law’ is another form of the argument. these arguments draw to some degree on the values of equality and non-discrimination which have already been discussed in this Chapter. But so far as they apply independently, they need to be separately discussed.
167. Legal Pluralism. ‘Legal pluralism’ may be described as the situation resulting from the existence of distinct laws or legal systems within a particular country, especially where that situation results from the transfer of introduction of one of the systems as an aspect of an introduced political structure and culture. Legal pluralism can exist in fact without formal recognition by the ‘dominant’ legal system. this was the case, for example, with Aboriginal customary laws in the period after British settlement of Australia. Or it can exist in a formally recognised way, as is the case in many countries where the legal system recognises indigenous customary law or religious law against the background of a general legal system introduced by colonisation. A major issue for the Commission in its inquiry into the recognition of Aboriginal customary law is the extent to which the Australian legal system should adopt some form of legal pluralism in this second sense. It is sometimes suggested that legal pluralism in this sense is undesirable and to be avoided. The opposite view is also held. According to Hooker:
despite political and economic pressures, pluralism has shown an amazing vitality as a working system. It may well be that it — and not some imposed unity — should be the proper goal of a national legal system. Indeed, even within developed nations them selves, there are signs that a plurality of law is no longer regarded with quite the abhorrence common a decade ago. This is especially true if one looks at those states which possess indigenous minorities; in the USA, Canada, Australia and New Zealand the courts are dealing with a spate of claims by the native minorities to land rights and for the recognition of their own laws. One must seriously question whether policies aimed at specifying a single source of law are really necessary; perhaps indigenous laws, somewhat modified, are more suitable as expressing unique cultural values.
The argument for pluralism has also been made in the Australian context:
For settler Australians it will not be adequate to salute ‘Aboriginality’. It is both the strength and weakness of [‘Aboriginality’] that it specifies so little. It may merely acknowledge another ethnic minority within the multicultural panoply. What we need is a commitment to a stronger and deeper pluralism that can take the measure of settler/Aboriginal difference. Pluralism in legal codes is only one concession out of many that settler society needs to make if Aborigines are really to be given a choice not to assimilate.
Legal pluralism, in the sense of the recognition of multiple laws or obligations, is a description of a variety of legal techniques which have been or can be used to accommodate the fact of diversity, whether in terms of culture, belief or geographical separation. As such, it is neither desirable nor undesirable in the abstract. Where different value systems, cultures or social structures coexist in fact, it will often be desirable for the dominant system to take steps to recognise, adjust to or to allow for that situation. But exactly what steps should be taken must depend on the specific context.
168. Legal Pluralism and the Criminal Law. Although this conclusion would be generally conceded for areas of civil and family law, it is often argued that at least the criminal law in any particular jurisdiction should be unitary, that is to say, uniform is its application to all persons who possess the same characteristics for the purposes of the law in question. In particular the criminal law should not impose special or separate rules on persons by reference to their race, religion or culture. For example the 1960 London Conference on the Future of Law in Africa recommended that ‘the general criminal law should be … uniformly applicable to persons of all communities within a territory having its own separate judicial system’. The same view was expressed in submissions to this Commission:
There may well be a difference between using a recognized concept such as provocation or duress and applying it differently, and using a concept that is peculiar to Aboriginal Customary Law. One advantage of the former course is that it focuses on the in dividual rather than on any racial group. In that way it is not open to attack on the ground that it introduces two systems of law or that it discriminates against or in favour of one section of the population.
First of all, it is necessary to distinguish a number of measures which do not infringe any principles of equality in the criminal law. These include:
the establishment of special procedures to take into account relevant cultural or other differences (as is done now in a variety of ways: eg, different forms of oath for different religious beliefs, with the option to affirm).
the cultural sensitivity of the general criminal law (in the sense that it does not assume or require any particular set of beliefs or cultural background).
taking into account ethnic origin, religion or culture where these are relevant considerations in the exercise of discretions. This is particularly relevant to the criminal law in the context of sentencing discretions. It was not suggested to the Commission that taking into account customary law elements in sentencing involved any element of ‘divisiveness’.
special rules incumbent upon a person by virtue of his holding a special office or position, or accepted by him as an aspect of his participation in a particular group or organisation. This includes penalties imposed eg on members of the armed forces un der military law, on members of an association under its rules, or on public servants or employees as part of the rules of their employment.
The argument for the unitary character of the criminal law derives support from the basic principles of equality and non-discrimination discussed already in this Chapter. But in the Commission’s view it is not, apart from these basic principles, a matter of overriding weight, as distinct from one among several considerations to be taken into account in the framing of the criminal law. The extent to which it is persuasive must depend again on the arguments in each context, and it will accordingly be dealt with as it arises in later chapters of this Report and in particular in Part IV, which deals with the criminal law and sentencing.
169. Divisiveness and Public Opinion. Another matter which is largely distinct from the principles of equality and non-discrimination is the important argument that the recognition of Aboriginal customary laws would be ‘divisive’, that it would affront general public opinion and thereby put at risk other important advances already made, or which may be made, by the Aboriginal people. The point has been made in some submissions to the Commission, though it has not been suggested that recognition of Aboriginal customary laws in any form at all would constitute a substantial affront to public opinion. On the other hand, many submissions urged the recognition of Aboriginal customary law, considering that this would be supported by public opinion, or that it should be introduced irrespective of public opinion. At present Australian law and practice recognises Aboriginal customary laws in a variety of ways (no doubt unsystematically) without producing any such affront. It may be that a more systematic recognition of Aboriginal customary laws, in conjunction with other factors such as land rights, would have that effect, though this is speculation. But the impact on public opinion of specific measures of recognition must depend on precisely what those measures are. The Parliament is the principal forum for the assessment of legislative and policy proposals in the light of public opinion. The task of the Commission, in respect of matters referred to it by the Attorney-General, is to give informed advice to the Government and Parliament as to the form and content such proposals should take. The Commission has consulted widely in its work on this Reference, in particular among Aboriginal communities and organisations but also generally. It is not aware of an upsurge of public opinion against the general idea of recognition of Aboriginal customary laws, or against particular proposals in this Report. There are disagreements, but for the most part these relate to specific issues or arguments. These will be dealt with, and if possible resolved, in that context. The Commission believes that there is support for the appropriate recognition of Aboriginal customary laws in particular contexts. The recommendations in this Report are made on their merits, and in the light of that assessment.
See MB Hooker, Legal Pluralism. An Introduction to Colonial and Neo-colonial Laws, Clarendon Press, Oxford, 1975 6-54 for an introduction to the concept of legal pluralism.
See Hooker for an exhaustive description of different forms of legal pluralism. cf also S Poulter, Legal Dualism in Lesotho, Morija, Lesotho, 1979.
See the arguments and submissions discussed in para 163-5.
Hooker, vii-viii. And cf P Sack, Submission 109 (29 November 1978).
T Rowse, ‘Liberalising the Frontier. Aborigines and Australian Pluralism’ (1983) 42 Meanjin 71, 83.
See para 127, 195, 208-9.
Cited by E Cotran, ‘The Place and Future of Customary Law in East Africa’, in East African Law Today, British Institute of International and Comparative Law, Commonwealth Law Series No 5, 1966, 19.
Justice JW Toohey, Submission 14 (26 May 1977) 3.
Thus Submission 183 of the South Australian Police (July 1980) argued that:
The use of legislation to infiltrate aspects of customary law should in our opinion be resisted as far as possible, for it provides for divisiveness. However … we see nothing objectionable in [customary law] issues being raised in mitigation. There appears little need for them to be considered as defences in view of the wide powers of the courts with respect to penalty.
cf Mackay v R (1980) 114 DLR (3d) 393.
Australian Mining Industry Council (GP Phillips), Submission 15 (17 May 1977) (arguing that it would be ‘socially divisive’ to have separate laws for Aborigines, while agreeing that special consideration should be given to Aboriginal customary law by the courts in particular cases); NT Police (Mr WJ McLaren), Submission 34 (15 July 1977) (`one law’ for all); WR Withers MLC, Submissions 182/199 (28 September 1980, 17 February 1981) (1aws should be non-discriminatory: Aboriginal customary law and traditions should be secured through a ‘fourth tier’ of local government); Energy Resources of Australia (BG Fisk), Submission 267 (4 May 1981) (special recognition of Aboriginal customary law would lead to divisiveness and racial tension; but some action needed in areas such as marriage, community justice, etc); E Harper, Submission 256 (21 April 1981) (‘one law for all’). See also para 95 n 124 and para 118.
Ambassador B Dexter, Submission 40 (28 September 1977) (urging the Commission not to be deflected in its task by consideration of public opinion).
See para 9-15 for a description of the Commission’s consultative program on the Reference.
For discussion of Aboriginal opinion on the issues see para 16-20. See also para 118.