The Commission’s Approach

158. The Justification of Special Laws. To summarise, Australia’s international obligations, under the Racial Discrimination Convention and the Civil and Political Rights Covenant, require that Australian legislation should not discriminate on grounds of ‘race, colour, descent, or national or ethnic origin’. But this does not preclude reasonable measures distinguishing particular groups and responding in a proportionate way to their special characteristics, provided that basic rights and freedoms are assured to members of such groups. Nor does it preclude ‘special measures’, for example for the economic or educational advancement of groups or individuals, so long as these measures are designed for the sole purpose of achieving that advancement, and are not continued after their objectives have been achieved. These principles, reflected in the Racial Discrimination Act 1975 (Cth), constitute the primary measure of the Commission’s recommendations in these respects. It is also helpful to compare the application of constitutional guarantees of equality before the law or equal protection in countries with similar backgrounds and problems. Under the Canadian Bill of Rights and the Charter of Rights and Freedoms, legislative distinctions, even if partly based on ethnic or cultural factors, will be valid if they are directed at a ‘valid federal objective’, and do not penalise persons only on account of their race. These guarantees of equality allow for the special treatment of Canadian Indians, for whom there is a specific constitutional responsibility. In exercising its power with respect to Indian and Indian lands, Parliament can use distinctions based on ‘a legitimate legislative purpose in the light … of long and uninterrupted history’,[132] or on ‘Indian customs and values’, provided that such distinctions do not specially penalise Indians or exclude them from the enjoyment of basic rights and freedoms.[133] The position in the United States, under the ‘equal protection’ guarantees in the Fifth and Fourteenth Amendments, is similar. Legislation will be consistent with equal protection if there is a rational basis for the legislative classification in the light of its legitimate purpose.[134] Legislation which infringes basic rights (eg in the area of criminal procedure or the right to vote) or which adopts suspect categories as such (especially race or national origin) will be subject to stringent review. But, as in Canada, United States courts have been strongly influenced by the special federal responsibility for Indian tribes. Legislation for Indians and Indian tribes is based not on a suspect racial classification but on a ‘political’ classification, in view of the long-established special trust responsibility for Indians. Legislation for Indians is not immune from review under the equal protection guarantee. But such legislation will be upheld ‘as long as the special treatment can be tied rationally to the fulfilment of Congress’ unique obligation towards the Indians’.[135]

159. Assessment of Proposals .for Recognition. Proposals for the recognition of Aboriginal customary law might be said to involve discrimination against no less than four groups or classes of persons:

  • traditional Aborigines themselves:

  • other Aborigines:

  • other Australians generally:

  • non-indigenous groups.

Some comment should be made about each of these.

160. Discrimination Against Traditional Aborigines. It is significant that in many of the Canadian and United States cases discussed in this Chapter, the discrimination or inequality complained of was against a member of the so-called ‘preferred’ group. The only major case in which it was not true was Morton v Mancari[136] where the complainants were non-Indian employees of the Bureau of Indian Affairs. This was the only case where what was at issue was a program of ‘affirmative action’, as distinct from a special regime for Indians. The Commission is aware of no decision holding that appropriate measures of recognition of indigenous customary laws are racially discriminatory, or unequal, even though (as is practically inevitable) the subjects of that law are defined in part by reference to their race or ethnic origin. In its view, such measures will not discriminate against members of the group among which the customary law is applied, provided that they do not deprive individual members of basic rights (including, in particular, access to the general legal system), are no more restrictive than is necessary to ensure fidelity to the customary laws or practices being recognised, and allow for individual members of the group to contest the application of its rules in particular cases. On this basis, the Commission believes that the recommendations made in this Report, so far as Aborigines themselves are concerned, are not discriminatory or unequal, but are fully consistent with the important principles of non-discrimination and equality before the law.[137]

161. Discrimination against Other Aborigines. A comment frequently made to the Commission during its work on this Reference was that recommendations for the recognition of Aboriginal customary laws have little or no impact on non-traditional Aborigines, especially those living in towns and cities.[138] These comments have not usually been cast in terms of discrimination or inequality, but they might be thought to raise that issue. To the extent that such comments constitute criticisms of proposals (as distinct from descriptions of the differences between ‘traditional’ and ‘non-traditional’ Aborigines), they tend in entirely different directions. On the one hand, it is argued that some less-traditional Aborigines, though they may have abandoned some of the more obvious manifestations of traditional Aboriginal culture and law, retain significant elements of traditionality which are equally deserving of recognition. This is particularly so, it is said, with respect to marriage and the family, where traditional law and cultural patterns are resilient and enduring.[139] To restrict recognition to Aborigines living in a relatively traditional, isolated way in separate communities would be seriously under inclusive. On the other hand it is argued that such proposals should be limited to ‘tribal’ Aborigines, strictly defined, what-ever special problems other Aborigines may have.[140] Different views may be held on the extent to which particular Aboriginal groups retain elements of traditional law and culture in recognisable form. But what is clear is that neither the category of ‘urban Aborigine’ nor that of ‘traditionally oriented Aborigine’ is easily definable, or exhaustive. Australian Aborigines, in the exercise of the right recognised in the Commission’s Terms of Reference to ‘retain their racial identity and traditional life style or, where they so desire, to adopt partially or wholly a European life style’, enjoy a spectrum of life styles. This spectrum involves, moreover, several directions and dimensions: it does not follow that movement ‘along’ the spectrum occurs only in one direction, or in any simple way. These difficulties of classification must be borne in mind in framing any recommendations.[141] It is better to recognise traditional rules or institutions, for particular purposes and in particular con texts, where they exist in fact. For example, Aborigines who retain the structures and practices of traditional marriage may be recognised as married, under the Commission’s recommendations, even though in other respects they may have ceased to follow their traditional laws. This meets the argument that some Aborigines living in non-traditional contexts retain elements of traditional custom and law which should be recognised.[142] A second criticism is of a different kind. It is said that to focus on customary laws is to ignore the main problems facing Aborigines in relation to the legal system (and especially the criminal justice system), that is, to deal with subsidiary issues rather than the crucial ones.[143] This is more a complaint about the Terms of Reference than about the Commission’s treatment of them. In any event the Commission’s recommendations are not framed as being applicable to traditionally oriented Aborigines or some other class of Aborigines. Rather they are directed at the problems the Australian legal system causes for those persons who live in accordance with Aboriginal customary laws and traditions.

162. Discrimination against non-Aborigines. An alternative argument, though one which has not been directed expressly at the Commission’s work, is that special measures for the recognition of Aboriginal customary law discriminate in some way against non-Aboriginal members of the Australian community.[144] There are three ways in which that might occur.

  • Beneficial General Reforms. First, the Commission might recommend reforms which would be beneficial not only for traditional Aborigines but for all members of the community. To the extent that measures implementing such reform were restricted to Aborigines only they might be unequal or discriminatory, unless the need of Aborigines in this situation was significantly greater than that of other persons. The Commission was not asked in its Terms of Reference to act as a general law reform agency for Aborigines, but to investigate the special features of Aboriginal traditions and laws, features which are not shared by the general Australian community. Recommendations reasonably adapted to the recognition of Aboriginal customary laws are therefore based on relevant differences, and are not invidious or discriminatory as against other members of the community. But it may be that the best remedy to a particular problem is not the recognition of customary laws as such, but some more general amendment to Australian law which would accommodate not only that problem but other similar problems encountered within the community generally.[145]

  • Additional Liabilities for Non-Aborigines. Secondly, recommendations for the recognition of Aboriginal customary laws might withdraw legal protection from members of the general community, or impose extra liabilities on them. This is not necessarily undesirable. For example, a statute imposing penalties for desecration of an Aboriginal sacred site can be regarded as a recognition of Aboriginal customary laws and traditions. It is reasonable to require respect for such sites, in the same way that it is reasonable to require respect for memorials or sites which other members of the community revere. A difficulty may, however, exist in the context of a customary law defence, exonerating a defendant from criminal liability for acts in accordance with customary laws. A partial defence (eg in cases of murder) creates no special problem in the present respect:[146] reducing murder to manslaughter may affect the defendant’s culpability and therefore his sentence, but it has no substantial effect on the level of protection afforded the community. But a complete defence might well affect the level of protection afforded to victims. This applies whatever the status or race of the victim. It is doubtful, therefore, whether Aboriginal customary laws could be recognised as a complete defence to serious offences consistently with the standards of equal protection.[147] In fact the Commission does not recommend a general customary law defence, for this and other reasons.[148] Its proposals in the criminal law area are carefully drawn so as to avoid withdrawing protection from Aboriginal people and other Australians.

  • Providing Special Facilities or Resources. Thirdly, recommendations for the provision of facilities or funds for Aboriginal communities might be regarded as discriminating against members of the general community who are also in need. But the Commission’s recommendations involve no program of reverse discrimination of this kind. Their focus is on legislative and other measures for the appropriate recognition of Aboriginal customary laws, rather than on programs in areas such as education, employment and housing. Certain expenditures and certain measures of employment and education may, no doubt, be required, but these will be incidental to the principal recommendations and justified by them, in the way that appropriate expenditure and personnel are required to support any justified governmental action.

163. Discrimination against Cultural Traditions and Practices of Immigrant Groups. A more difficult argument, which has been raised on a number of occasions in the course of the Reference,[149] is that to recognise Aboriginal cultural traditions, customary laws and practices might be regarded as discriminating against the cultural traditions, customary laws and practices of some immigrant groups in Australia, to the extent that these are not recognised. Many such groups come from countries (eg European countries) with sufficiently similar social structures and traditions so that Australian law creates no particular problem.[150] But some immigrant groups come from countries with very different backgrounds and customs. For these groups the general Australian legal system may pose special problems for the continuing practice of their traditions and beliefs. The Commission was only asked to investigate the recognition of Aboriginal, as distinct from immigrant, customary laws. Questions of priorities between them, or the desirability of legislating for one to the exclusion of the other, are matters for the Parliament. The Commission should not make recommendations which, if implemented, would create discrimination against other sections of the Australian community.

164. Distinctions between Aboriginal and Immigrant Customs. But valid distinctions do exist between the recognition of Aboriginal customary laws on one hand and of immigrant customs and traditions on the other, so that it is not arbitrary nor discriminatory to give special recognition to the former in appropriate ways. Migrants came to the Australian community (the community founded by migration and subsequent organisation and settlement after 1788) not as communities but as individuals (or families). They came to a community with its own laws and legal culture. They are entitled to respect for their opinions and practices, and to share in the formulation and amendment of laws and government policies. Their views on the legal system and its impact on them are important. But the position of the members of Aboriginal communities is different. This is their country of origin. In relation to the general community, they exist not merely as individuals but as a prior community (or series of communities) inhabiting territory to which the general community itself migrated (without their agreement and without their having any control over that process). This may not be enough, of itself, to warrant general recognition of Aboriginal customary laws many years after the event. But the Commission concludes that the recognition of Aboriginal customary laws and tradition by ‘special laws’ is not precluded by any need to maintain equality with non-indigenous minority cultures and practices in the Australian community.[151] This conclusion is reinforced by several further considerations. The impact of non-recognition of their customary laws on traditional Aborigines is demonstrably greater than is the case with immigrant minorities. This impact, and the resulting disadvantages and injustices of non-recognition, were an important reason for the Reference to the Commission of the specific question of recognition of Aboriginal customary laws.[152] The distinction between indigenous and immigrant minorities is acknowledged in comparable countries such as the United States and Canada. In these countries the specific federal responsibility for indigenous Indian peoples, and the long history of the exercise of that responsibility, are regarded as justifying the continuation of special legislation in the face of challenges based on ‘equality’ or ‘equal protection’.[153] A similar distinction is increasingly recognised in the work of the United Nations, where a Working Group on Indigenous Populations has been established, with Australian support, to draft ‘a set of international standards to protect the rights of indigenous peoples’.[154] Its work is distinct from the continuing debate over ethnic, religious and cultural minorities generally, in the Subcommission on Prevention of Discrimination and Protection of Minorities. This distinction between Aborigines and migrants is also consistent with the principles established by the Australian Council on Population and Ethnic Affairs. Its Report on Multiculturalism for all Australians asserts that ‘multiculturalism does not involve separate and parallel development of, the major institutions — such as education, the law and government — for minority groups. These … institutions are common to all Australians’.[155] But it consistently recognises the special effects of settlement on the Aboriginal people and the case for ‘adaptations of tribal law that may be applicable to some groups of Aboriginals’.[156]

165. The Commission’s Conclusion. The Commission concludes that special measures for the recognition of Aboriginal customary laws will not be racially discriminatory, and will not involve a denial of equality before the law or equal protection as those concepts are understood in comparable jurisdictions, if these measures:

  • are reasonable responses to the special needs of those Aboriginal people affected by the proposals:

  • are generally accepted by them; and

  • do not deprive individual Aborigines of basic human rights, or of access to the general legal system and its institutions.[157]

In particular, such measures should not confer rights on Aborigines as such, as distinct from those Aborigines who, in the particular context, suffer the disadvantages or problems which justify recognition.[158] Pursuant to this basic conclusion, the following guidelines have been applied to the recommendations in this Report:

  • Aborigines should, wherever possible, retain rights under the general law (eg, to enter into Marriage Act marriages, to make wills) or should at least be able to contest the application of new rules in particular cases.

  • legislation should be no more restrictive than is necessary to ensure fidelity to the customary laws or practices being recognised.

  • measures of recognition should not unreasonably withdraw legal protection or support from individuals (whether Aboriginal or non-Aboriginal).

  • where the most appropriate remedy to a problem revealed by the Commission’s inquiries is not a recognition of customary law but some more general provision, it is necessary to consider whether that provision can legitimately be applied to some class of Aborigines only, or whether the reasons for the provision apply equally to all members of the community.[159] If the latter, the Commission should draw attention to the problem without making recommendations for legislation applicable only to the more limited class.

[132]Attorney-General for Canada v Canard (1975) 52 DLR (3d) 548, 575 (Beetz J).

[133]See para 138-43.

[134]Polyviou, 681.

[135]Morton v Mancari 417 US 535, 555 (1974). See para 132-7.


[137]Particular issues of equal protection or discrimination will be discussed as they arise. See para 249-51, 262-4, 344-5, 365-7, 447-50, 451, 521-2, 562-565, 807, 840, 971-2.

[138]See para 86.

[139]eg Tasmanian Aboriginal Centre, Submission 237 (10 April 1981); National Society of Labor Lawyers (D Merryfull), Submission 322 (5 April 1982) 2, 35-6. See para 35-6 for a brief assessment.

[140]cf para 95, 124.

[141]See para 32, 95.

[142]See para 124-6.

[143]D Vachon, ‘Customary Law: The ALRC Discussion Paper’, (1981) 6 LSB 229, 230, quoted with approval by National Society of Labor Lawyers (D Merryfull), Submission 322 (5 April 1982) 2.

[144]This argument is sometimes associated with, but is distinct from, the argument from general public opinion. See para 166-9.

[145]eg the problem of social welfare payments for the care of children: para 388.

[146]A partial defence recognises the defendant’s moral and psychological conflict in the particular case, and goes as much to mitigation of punishment as to substantive liability. It is recognised in the United States that individualisation of punishment through the exercise of discretions creates no equal protection problem: Polyviou, 523.

[147]This criticism would not necessarily apply if Aboriginal customary laws were to be taken into account on considerations of ‘double jeopardy’, to avoid proceedings or liability under the general law. There is a difference between such a case and ordinary instances of liability under the general law where there have been no other proceedings or punishments. This is analogous to forms of diversion or transfer of jurisdiction, which are not precluded by any basic principle of equality in the criminal law. See further ch 20.

[148]See para 442-453.

[149]Human Rights Commission (PH Bailey) Submission 346 (20 Sept 1982) 2; Attorney-General’s Department, Victoria (G Golden) Submission 277 (11 May 1981) 1; BM McIntyre, Submission 242 (23 April 1981) (but accepting the distinction between immigrants and indigenes); Law Society of NSW (DE McLachlan), Submission 358 (16 November 1982); Justice HE Zelling CBE, Submission 369 (26 January 1983) 1 (though only with respect to ‘separate systems of law’).

[150]One problem common to different groups is that of translation and interpreter services. See para 596-600.

[151]To similar effect cf D Partlett, ‘Benign Racial Discrimination: Equality and Aborigines’ (1979) 10 Fed L Rev 238.

[152]See para 3-4.

[153]See para 132-44.

[154]See Commonwealth of Australia, Part Debs (Senate) 25 August 1982, 517. For the work of the working group see its First Report (UN Doc E/Cn4/Sub 2/1982/33, 25 August 1982); J Hantke ‘The 1982 Session of the UN Sub Commission on Prevention of Discrimination and Protection of Minorities’ (1983) 77 4 AJIL 651, 656-8.

[155]Australian Institute of Multicultural Affairs, Multiculturalism for all Australians, AGPS, Canberra, 1982, 11; cf id, 16.

[156]id, 4, 15, 21, 24, 30-1.

[157]The same conclusion is reached by JG Starke QC in a memorandum written for the Commission: ‘International Law Implications of Reference to Law Reform Commission on Question of Aboriginal Customary Law’, Submission 153 (24 January 1980) 3-6.

[158]cf Polyviou 314: ‘the fact that many members of a race have “special traits” does not provide an adequate foundation or constitutional justification for discriminatory laws applicable to all members of the race in question …’ One approach which is helpful in meeting this problem is the enactment of presumptions or rights to consideration whose force is attenuated or disappears in the absence of special need: eg the proposed child placement principle (see para 156). On the corresponding vices of irrebuttable presumptions see Polyviou, 650-3. For another view on ‘special traits’ see Re and Brown (1986).

[159]For example in R v Rocher (1984) 55 AR 387, it was argued that a non-Indian trapper hunting for food for himself and his dogs in the off-season was discriminated against because he was not allowed the special fishing rights of Indian acid Inuit people living on the land. The Northwest Territories Court of Appeal held that in the circumstances it was a rational distinction to give priority to local Indians and Inuit in relation to a scarce resource, having regard particularly to the special federal responsibility for native people, and that there was accordingly no discrimination: id, 390-1.