1. A Reconsideration of Basic Questions. On 9 February 1977, the then Federal Attorney-General, Mr RJ Ellicott QC, referred to the Commission the question:

whether it would be desirable to apply either in whole or in part Aboriginal customary law to Aborigines, either generally or in particular areas or to those living in tribal conditions only.

The Terms of Reference went on to specify particular questions — namely, whether existing courts should be able to apply Aboriginal customary law to Aborigines, and whether Aboriginal communities should have the power to apply their customary laws and practices in the punishment and rehabilitation of Aborigines. These questions are not new. One hundred and forty years earlier, the British House of Commons Select Committee on Aborigines had stated that to require from Aborigines ‘the observation of our laws would be absurd and to punish their non-observance of them by severe penalties would be palpably unjust’.[1] But these views were not reflected in the actual recommendations of the House of Commons Select Committee, nor in subsequent policy decisions.[2] Indeed, in the same year, the Colonial Office had directed the Governor of New South Wales to ensure that all Aborigines within his jurisdiction were to be treated as British subjects. Aborigines and non-Aborigines were to be governed by the one, introduced, law?[3]

I would submit, therefore, that it is necessary from the moment the Aborigines of this Country are declared British Subjects they should, as far as possible, be taught that the British Laws are to supersede their own, so that any native, who is suffering under their own customs, may have the power of an appeal to those of Great Britain, or, to put this in its true light, that all authorized persons should in all instances be required to protect a native from the violence of his fellows, even though they be in the execution of their own laws.[4]

Thus no specific recognition was to be given to Aboriginal customary laws and practices. Australian law, civil and criminal, substantive and procedural, was to be applied to Aborigines to the exclusion of their own laws except in the rare cases where legislation made specific provision to the contrary.[5] This, and other governmental policies applied since 1788 at the national, State and local levels, have had a drastic impact on Aboriginal customs and culture. The resulting destruction of traditional Aboriginal life and values in many areas has made the task of recognition nearly 200 years later both difficult and very different from what it would have been had Aboriginal peoples been treated with, from the first, as distinct peoples with their own institutions of government and laws. A basic question, implicit in the Terms of Reference, is whether the impact of the introduced culture and legal system, and the associated drastic changes in Aboriginal society, still permit measures for the recognition of Aboriginal customary laws. If they do, what form should such recognition now take?

2. Developments Towards Recognition. This underlying question has already had to be considered by Australian governments and other bodies, in a variety of contexts. In recent years, a number of factors have tended towards a reappraisal of the position that no specific recognition should be given to Aboriginal customary rules and practices. These have included:

  • the perception that denying all recognition to distinctive and long-established Aboriginal ways of belief and action may be unjust;

  • the apparent failure of the legal system to deal effectively or appropriately with ‘many Aboriginal disputes;

  • published statistics indicating disproportionately high levels of Aboriginal contact with the criminal justice system, which have been seen as symptoms of failure and discrimination within that system; and

  • the movement away from policies of ‘assimilation’ and ‘integration’ towards policies based on ‘self-management’ or ‘self-determination’ at federal level and to varying degrees also at State and Territory level.

Changes in government policy towards Aborigines have increasingly led to the acceptance of the idea that Aborigines have (within certain limits) the ‘right’ to retain their racial identity and traditional lifestyle. This idea is made explicit in the Commission’s Terms of Reference. To assist in the exercise of this right, steps have begun to be taken by Australian legislatures to recognise Aboriginal traditions and the Aboriginal heritage in a variety of ways. These have included:

  • the conferral in some areas of land rights based in part on traditional affiliations with land, and recognising traditional rights to use or control land;[6]

  • a degree of protection of Aboriginal sacred sites and other aspects of the Aboriginal heritage;[7]

  • the protection of Aboriginal hunting, gathering and fishing rights;[8]

  • the recognition of traditional Aboriginal marriages for certain purposes;[9]

  • some provision for traditional distribution of property on death.[10]

Similarly the courts, confronted with the reality of Aboriginal adherence to different or conflicting rules or values, have attempted to take Aboriginal customary laws and traditions into account in ways such as:

  • the exercise of sentencing discretions;[11]

  • the application of defences based on provocation, duress and claim of right;[12]

  • treating loss of traditional status and privileges as a compensable injury in road accident cases.[13]

It is true that both legislative and judicial instances of recognition tend to be particular rather than general, that they may. be confined to particular jurisdictions, and that they often depend upon the exercise of discretions rather than existing as of right. It has been a very piecemeal approach to the problems by the general legal system,[14] but nevertheless it constitutes an important aspect of the background to the Reference.

3. Pressures for Change. The Reference also reflects concerns about the need for a reassessment of relations between the dominant non-Aboriginal population and Australia’s indigenous peoples. The forces behind this reassessment are important to an understanding of the Reference. The pressures for change gained impetus from the 1967 Referendum, which, by an overwhelming majority, empowered the Commonwealth Parliament to make special laws for Aborigines.[15] Subsequent developments have included:

  • the enactment of legislation to recognise Aboriginal land, or to allow claims to be made to land, in the Northern Territory, South Australia and elsewhere;[16]

  • attempts to establish representative Aboriginal bodies (successively the National Aboriginal Consultative Committee, then the National Aboriginal Conference) to act as an advisory body to the Federal Government;[17]

  • the establishment of the Aboriginal Development Commission (as successor to the Aboriginal Land Fund Commission) to assist in providing economic independence for Aborigines;

  • demonstrated Aboriginal self-management in particular fields, with the emergence of Aboriginal Medical and Legal Services, Aboriginal Child Care Agencies, Aboriginal Hostels Ltd and Aboriginal schools (eg Yipirrinya, NT);

  • proposals for a Makarrata or treaty of commitment, developed by the Aboriginal Treaty Committee.[18]

4. Catalysts for the Reference. These events, though significant, did not provide any specific impetus for an inquiry into the recognition of Aboriginal customary laws. Apparently a number of concerns led the then Federal Minister for Aboriginal Affairs, Mr Viner, to press the then Attorney-General to raise the matter with the Standing Committee of Attorneys-General in June 1976.[19] Matters emphasised as demonstrating at least the need for flexibility in the administration of the law, included:

  • the Report of the Western Australian Royal Commission into events at Skull Creek, Laverton;[20]

  • the decision of Justice Wells in R v Sydney Williams.[21] His Honour sentenced Williams, who had been convicted of the manslaughter of an Aboriginal woman, to a two-year suspended sentence on his agreeing to submit himself to the tribal elders to be ruled and governed by them for one year and to obey their lawful directions.[22] The decision was construed (or rather misconstrued) as a form of licensing of ‘traditional punishment’ and aroused considerable controversy;

  • the inadequacy of statistics showing the extent Aborigines figure in the criminal justice system;[23]

  • relations between Aboriginal Legal Services and State-supported legal aid schemes;[24]

  • the question of implementing this Commission’s recommendations in its Report on Criminal Investigation (1975) as they related specifically to Aborigines,[25] in particular the recommendations relating to interpreters, prisoner’s friends during police interrogations and the introduction of a notification system when an Aboriginal person is arrested?[26]

Impetus for the Reference came also from concerns expressed by other public figures and commentators. In 1976, Senator Bonner introduced a private member’s Bill, the Aborigines and Torres Strait Islanders (Admissibility of Confessions) Bill, into the Senate.[27] The Bill was modelled on this Commission’s recommendations in its Report on Criminal Investigation (1975), but also sought to incorporate the guidelines for the police interrogation of Aboriginal suspects enunciated by Justice Forster in R v Anunga.[28] The Bill did not proceed past second reading stage. In 1974, GJ Hawkins and RL Misner submitted three reports on the Criminal Justice System in the Northern Territory to the Minister for the Northern Territory. The Reports outlined the inadequacy of the criminal justice system in dealing with Aboriginal offenders and called for a full-scale review.[29] Similar concerns about the inappropriateness and ineffectiveness of existing mechanisms to deal with law and order in Aboriginal communities in the Northern Territory were shared by many Aborigines. In particular, the positive step taken by the Yirrkala Council was a key factor leading to the Reference.[30] The ‘Yirrkala proposal’ and the more general issues it raises, will be discussed later in this Report.[31] But it is helpful to set out here some of the background to that proposal. In 1975, the Council for Aboriginal Affairs[32] visited Arnhem Land. Aboriginal leaders from Ngukurr, Groote Eylandt and Yirrkala appealed to the Council to help them reduce the despair in the communities, brought about especially by drunkenness. The resulting recommendations of the Council for Aboriginal Affairs related primarily to Yirrkala where Aboriginal leaders sought power to appoint local Aboriginal orderlies having limited powers of arrest and detention unimpeded by outside police intervention, with charges being heard by a magistrate sitting with Aboriginal assessors or justices of the peace. They expressed:

strongly-held objections to direct action by European police, to the incarceration of Aborigines at Nhulunbuy, to the hearing of Aboriginal cases in a European setting, and to the kind and scale of penalties imposed according to European standards.

The members of the Council for Aboriginal Affairs endorsed these proposals in principle, and suggested they be put into effect, at least at Yirrkala but also in other Aboriginal communities ‘prepared and able to accept similar responsibilities’.[33]

5. The Reference and its Scope. In a sense the giving of the Reference was itself a recognition of the existence of Aboriginal customary laws and of the continuing adherence by Aborigines to their customary laws and traditions. On the other hand the Terms of Reference do not imply that the formal recognition of Aboriginal customary laws is the best response to the problems identified. The initial question in the Terms of Reference is whether Aboriginal customary laws should be recognised. In this respect, the Commission’s task differs from that of the Aboriginal Land Rights Commission, which, as stated by Commissioner Woodward in his First Report, was not to recommend:

whether Aborigines should be granted rights in land, since the government had already decided that they should. My task was simply to advise on how such rights should be granted.[34]

In addition to the basic question whether Aboriginal customary laws should be recognised, the Reference required the Commission to report upon two matters in particular:

(a) whether existing courts should be empowered to apply Aboriginal customary law and practices in the trial and punishment of Aborigines; and

(b) to what extent Aboriginal communities should have the power to apply their customary law and practices in the punishment and rehabilitation of Aborigines.

The first question is largely subsumed in the more general and basic question on which the Commission is asked to report — that is, the recognition of Aboriginal customary laws. Thus it is necessary to consider whether the general law (both substantive and procedural) should be modified to take account of Aboriginal customary laws, for example, whether defences to criminal charges should embrace customary law elements, whether rules of evidence require modification, and whether it would be appropriate for Australian law to enforce Aboriginal customary laws (eg through the creation of offences for violation of those laws). Issues of recognition also arise in the field of ‘personal law’ — for example, in relation to Aboriginal traditions of marriage, child care and property distribution — and in a number of other areas. On the other hand, bearing in mind the background of the Yirrkala proposal and similar suggestions, the second specific question in the Terms of Reference might be thought to raise issues of a distinct kind. This question refers to the application of ‘customary law and practices in the punishment and rehabilitation of Aborigines’. In fact, most of the developments in Australia in the area of local ‘justice mechanisms’ have involved increasing Aboriginal input in various ways in the application of the general law, rather than in the specific application of Aboriginal customary laws or practices. In addition, it is not clear whether this second question is restricted to the treatment of Aboriginal offenders against the general law or whether it extends to offences against Aboriginal customary laws, regardless of whether they constitute offences against the general law. As will be seen, there are difficulties with either assumption.[35] Some have assumed that the question intended to be asked was whether Aboriginal communities should have control over their own law and order problems. These questions are about autonomy — a matter going to the heart of relationships between Aborigines and non-Aborigines. And the solutions are likely to go well beyond legal reforms, to matters of an economic, social and political kind. To treat the recognition of Aboriginal customary laws as the channel for Aboriginal self-determination is to distort the issues.[36] These difficulties have not prevented the Commission from examining a wide range of matters. Indeed, they support the view that such a wide-ranging inquiry is necessary. But it is as necessary to keep in mind that some of the demands being voiced by Aboriginal people and their organisations are essentially demands for self-government or autonomy, at least in certain areas, and that such demands are not able to be satisfied simply through recognition of Aboriginal customary laws and traditions. But the issues dealt with in this Report are important in their own right, however much it is necessary to place them in their proper context as part, and only part, of a wider debate.

6. Matters to be taken into Account. A variety of principles were set out in the Terms of Reference as relevant to the questions asked. Those principles do not point in anyone direction, nor do they provide any clear rationale for recognition. They allow more than one response, including the conclusion that Aboriginal customary laws should not be recognised. The Commission was directed to have special regard in particular to ‘the need to ensure that no person should be subject to any treatment, conduct or punishment which is cruel or inhumane’. In addition the Commission was required to consider:

  • The special interest of the Commonwealth in the welfare of the Aboriginal people of Australia. In recent years the Commonwealth has recognised the special needs of Aboriginal people, and has provided special programs to respond to these demonstrated needs. An important stimulus has been the fact that since 1967 the Commonwealth has had legislative power to enact laws for Aboriginal people under s 51(26) of the Constitution.

  • The need to ensure every Aborigine enjoys basic human rights. International human rights standards enunciated in treaties to which Australia is a party may sometimes appear to conflict with the ‘right of Aborigines to retain their racial identity and traditional lifestyle’. The emphasis on individual human rights, as distinct from the collective authority implicit in tradition, poses difficulties in certain areas. However, while the impression may be given that the ‘right to retain a traditional lifestyle’ is to be exercised only on the conditions laid down by the majority culture and legal system, the matter is not so simple. Values such as humane treatment and equality are an important aspect of the case which Aborigines assert for fairer and more equal treatment within Australian society. In many respects human rights arguments support, rather than contradict, the claims for recognition of Aboriginal customary laws and traditions.[37]

  • The right of Aborigines, should they wish to do so. to retain their racial identity and traditional life style. This principle has frequently been articulated as an important one underlying recognition of Aboriginal customary law.[38] Adopting this objective has wider implications. As Professor Stanner put it:

Any such policy must become an empty platitude unless Aboriginal communities are given an extensive right to preserve and develop their system of law. No culture is selfsustaining: the ‘custom’ or ‘way of life’ depends on the observance of jural rules and moral evaluations under sanctions. In undertaking to let the Aborigines who choose to do so ‘to retain their racial identity and traditional life style’ the Government has undertaken to meet the necessary conditions of their doing so.[39]

Support for traditional authority is necessary if Aborigines are to be able to retain their traditional life style. The erosion of traditional authority of Aboriginal leaders and the resultant weakening of Aboriginal customary laws have often been cited as an argument for the recognition of customary laws,[40] although they have also been referred to as a justification for continued non-recognition, on the ground that it is ‘too late’ for anything else.[41]

  • Difficulties in applying the existing criminal justice system to Aborigines. As is widely acknowledged, the criminal justice system has not been particularly effective in dealing with law and order problems in Aboriginal communities.[42] The high rates of Aboriginal imprisonment, and the inappropriateness of imprisonment as a form of ‘treatment’ or ‘rehabilitation’ of Aboriginal offenders, are symptoms of underlying difficulties, which have long concerned both Aborigines and non-Aborigines. The Reference was to a large extent impelled by concerns, such as those of the Yirrkala people, over the inadequacies of the criminal justice system.[43]

  • The need to ensure equitable, humane and fair treatment under the criminal justice system to all members of the Australian community. The failure of the general legal system to accommodate Aboriginal customary laws can produce injustice in particular cases. As Elizabeth Eggleston pointed out:

It seems unjust to an Aboriginal defendant who is ignorant of white law and acts in accordance with tribal law to subject him to criminal punishment in the ordinary courts. It seems equally unjust to convict an Aborigine who acts under the compulsion of tribal law, even though he knows his action is contrary to white law. He may have no real choice but to act in accordance with tribal law.[44]

But the Reference is not limited to crimes involving Aborigines only. The Commission is required to have regard to the interests of all members of the Australian community.

7. The Reference and Changing Patterns of Aboriginal/Non-Aboriginal Relations. The Reference was given to the Commission at a time of significant redefinition of the relations between Aborigines and non-Aborigines, a process which is continuing. Given the rapid and far-reaching changes occurring in Aboriginal communities, the need for reassessment of laws and administrative practices affecting the Aborigines is clear. For the same reason, any changes in these laws and practices will need to be reassessed in due course. ‘In this sense the recommendations in this Report are provisional. They are provisional for another reason, too. Although the Commission has held discussions on the Reference and on its recommendations throughout Australia, especially with Aboriginal people and their organisations, the Commission is not an Aboriginal body and does not speak for Aboriginal people. The recommendations in this Report will have to be considered and discussed between the Government and Aboriginal people affected: recommendations to this effect are made later in this Report. These considerations have required the Commission to adopt certain basic guidelines:

  • flexibility to cope with change, and caution that one does not inadvertently limit the scope for change;

  • sensitivity in dealing with matters to some extent outside the Commission’s experience;

  • adherence to the principle that Aboriginal people should be involved, as far as possible, in decisions that affect them, and in the implementation of these decisions;

  • a policy of minimum intervention in the way Aborigines choose to live their lives.

The Commission believes that its recommendations for the recognition of Aboriginal customary laws — as well as the way they have been arrived at — reflect these principles. But it is unrealistic to think that the whole range of problems that Aboriginal people experience with the legal system can be solved in any single program for reform. The Commission’s proposals are presented as its assessment of what is appropriate, within the Terms of Reference, at the present time. In Part VIII of this Report, the Commission will discuss in more detail the implementation of its proposals, and the ways in which new or changing needs may be dealt with in the future.

 

[1]British House of Commons, Select Committee on Aborigines (British Settlements), Report, House of Commons Parl Paper 425, 1837, 84.

[2]See para 24, 58.

[3] Glenelg to Bourke, 26 June 1837, Historical Records of Australia (hereafter HRA) set 1, vol 19, 47.

[4]Report by Grey on the Method for Promoting the Civilization of Aborigines, Enclosure in correspondence, Lord John Russell to Sir George Gipps, 8 October 1840, HRA ser 1, vol 21, 35.

[5]cf MC Kriewaldt, `The Application of the Criminal Law to the Aborigines of the Northern Territory of Australia’ (1960) 5 UWALRev 1, 20.

[6]See para 77, 212.

[7]See para 78.

[8]See para 79.

[9]See para 74, 80.

[10]See para 76.

[11]See para 71.

[12]See para 72.

[13]See para 73.

[14]In this Report the terms `general legal system’ and `general law’ will be used to refer to the body of federal, State and Territory laws (including the common law) applying in Australia. The term ‘Aboriginal customary laws’ will be used to refer to the distinctive rules, traditions, customs and practices adhered to by groups of traditionally oriented Aborigines. See further para 99–100.

[15]In the Referendum, 5183113 (89.34%) voted in favour of the proposal; 527007 (9.08%) against; 91464 (1.58%) votes were informal.

[16]See para 77.

[17]The NAC, which replaced the NACC in 1978, was wound up in June 1985 pursuant to recommendations made by Dr HC Coombs in a Report on The Role of the National Aboriginal Conference, AGPS, Canberra, 1984. It has been announced that a replacement body, to be called the Aboriginal and Tomes Strait Islander Congress, will be established: see L O’Donoghue, Proposal for an Aboriginal and Islander Consultative Organisation, AGPS, Canberra, 1985.

[18]See Senate Standing Committee on Constitutional and Legal Affairs, Two Hundred Years On ..., AGPS, Canberra, 1983.

[19]The matter was again raised by the Commonwealth at meetings of the Standing Committee of Attorneys-General on 16–17 October 1976 and 24–25 March 1977, and by Hon I Medcalf, the then WA Attorney-General, in July 1977. This Reference was given to the ALRC in February 1977, and later discussions were inconclusive.

[20]Report of the Laverton Royal Commission 1975–76, Perth, Government Printer, 1976.

[21](1976) 14 SASR 1. See para 493.

[22]Formally of course, as Senator Durack on behalf of the then Attorney-General pointed out, in reply to a question from Senator Jessop, `the decision was made by a South Australian court under State law and is therefore in no way the responsibility of the Commonwealth’: Commonwealth of Australia 69 Parl Debs (Sen) (7 September 1976) 452.

[23]See para 394–9.

[24]This later became the subject of two Reports, the first by the House of Representatives Standing Committee on Aboriginal Affairs: Aboriginal Legal Aid, AGPS, Canberra, 1980; the second by Mr JP Harkins, Inquiry into Aboriginal Legal Aid, 3 vols, AGPS, Canberra, 1985.

[25]ALRC 2, Criminal Investigation, AGPS, Sydney, 1975, para 371–7.

[26]Correspondence, Minister for Aboriginal Affairs, Mr Viner to the Attorney-General, Mr Ellicott QC (10 July 1976).

[27]Commonwealth of Australia 69 Parl Debs (Sen) (15 September 1976) 695–700.

[28](1976) 11 ALR 412.

[29]G Hawkins & R Misner, Restructuring the Criminal Justice System in the Northern Territory, 3rd Report, unpublished, Canberra, 1974, 19. See also RL Misner, ‘Administration of Criminal Justice on Aboriginal Settlements’ (1974) 7 Syd L Rev 257. See para 683, 685.

[30]Hon RI Viner MHR, Minister for Aboriginal Affairs, Commonwealth of Australia 112 Parl Debs (H of R) (24 November 1978) 3449.

[31]See para 820–832.

[32]Dr HC Coombs (Chairman), Emeritus Professor WEH Stanner and Mr BG Dexter, then Secretary, Department of Aboriginal Affairs.

[33]Council for Aboriginal Affairs, Report on Arnhem Land, AGPS, Canberra, 1975, 17–20. See further para 678. See also Report of the House of Representatives Standing Committee on Aboriginal Affairs Present Conditions of Yirrkala People, AGPS, Canberra, 1974, 69–75; Interim Report from the House of Representatives Standing Committee on Aboriginal Affairs, Alcohol Problems with Aboriginals, Northern Territory Aspects, AGPS, Canberra, 1976, para 64–70, 98-9.

[34]Aboriginal Land Rights Commission, First Report (Commissioner, Justice AE Woodward), Canberra, AGPS, 1973, para 4.

[35]See para 679, 688–91.

[36]See ch 39 for further discussion of these underlying issues.

[37]These issues are discussed in detail in Chapter 10.

[38]See para 103, 107, 127.

[39]Professor WEH Scanner, Submission 6 (20 February 1977) 7.

[40]id, 3; N Williams, Submission 41 (15 October 1977) 24; Commission of Inquiry into Poverty, Law & Poverty in Australia. Second Main Report (Commissioner: R Sackville), AGPS, Canberra, 1975, 28. See also para 104–5.

[41]cf para 119, 122–4.

[42]W Clifford, ‘An Approach to Aboriginal Criminology’ (1982) 15 ANZJ Crim 3, 8-9; EM Eggleston, Fear, Favour or Affection. Aborigines and the Criminal Law in Victoria, South Australia and Western Australia, ANU Press, Canberra, 1976, 170–2, 178–80; Misner, 260, 283; House of Representatives Standing Committee on Aboriginal Affairs, Aboriginal Legal Aid, 1980, 7–24, 36–61.

[43]See para 4.

[44]Eggleston, 299. See further para 110.