Consultation and Implementation
1030. Aboriginal Involvement in Implementing the Report. The constitutional and administrative issues discussed in Chapter 38 are important. But more important is the point that the Commission’s recommendations relate to matters that are the province of Aboriginal people themselves. The Commission in the course of the Reference consulted widely with Aboriginal people and organisations about …
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Read moreThe Report in Context
1035. Balancing Considerations. Undeniably the questions discussed in this Report are not ones on which there is likely to be a consensus. Not only have widely divergent views been expressed, but there are divergent principles and requirements to be reconciled in making particular proposals:One cannot but be conscious of the diversity of the views that …
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Read moreAdministrative and Political Constraints of the Federal System
1022. Administrative and Political Constraints. More significant than questions of constitutional power are the administrative and political constraints of the federal system, a matter on which the Australian situation has much in common with that in Canada and the United States. In many areas at present, legislation affecting Aborigines is predominantly State or Territory legislation, …
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Read more37. Summary of Recommendations
1004. Summary of Proposals in this Report. This Part of the Report summarises the recommendations set out in Parts II-VII and discusses the two basic questions of implementation of these recommendations:whether they can and should be implemented by Commonwealth legislation under s 51(26) of the Constitution, and related federal/State issues (Chapter 38);the need for involvement …
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Read moreConclusions and Implementation: The Way Forward?
838. The Search for Solutions. While it is possible to draw up various models of justice mechanisms for Aboriginal communities, and to point to potential difficulties and shortcomings, it is not possible to predict the likely success of any of them. Certainly it has become clear that there is no one solution or straightforward answer …
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Read moreIntroduction
803. The Range of Options. As is clear from the Australian and overseas experience described in the preceding chapters, many different structures have been adopted or proposed in response to demands for local justice mechanisms for indigenous groups. The limitations of some of these structures, and the extent to which they depend on local history …
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Read morePapua New Guinea Village Courts
769. Background. Village courts began operating in Papua New Guinea in 1975.[1116] Since that time the number of courts has greatly increased and they now serve two thirds of the population of Papua New Guinea.[1117] In August 1985 there were 856 village courts staffed by 7674 village court officials.[1118] Courts are established only on request …
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Read moreJustice Mechanisms in Aboriginal Communities: Needs, Problems and Responses
683. Previous Discussions of these Questions. Apart from official discussions, the prospects for Aboriginal community justice mechanisms in some form have been discussed by a number of authors, especially over the past ten years. Of earlier discussions the most important were by AP Elkin,[893] who strongly supported the establishment of properly constituted native courts, at …
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Read moreThe Commission’s Role
687. Diffuse and Wide-Ranging Problems. These responses are clearly not limited to the question of the application of Aboriginal customary laws but address wider issues of law and order and the interaction of Aborigines with the general legal system. It is evident that the questions posed for the Commission by the second limb of its …
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Read more20. Some Procedural Alternatives
471. A Range of Alternatives. The most important way in which recognition has so far been extended to Aboriginal customary laws in the criminal law (apart from sentencing discretions) has been informally through the exercise of administrative or procedural powers. These have included:non-prosecution for certain offences (eg in cases regarded as strictly ‘traditional’ or ‘tribal’[1]);prosecution …
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