The Recognition of Aboriginal Customary Laws and Human Rights Standards

179. Relevant Human Rights Instruments. Australia is party to a number of international human rights treaties which are relevant for present purposes. Four treaties should be briefly referred to.

180. International Covenant on Civil and Political Rights 1966. Articles 1 and 27 have already been discussed. Other significant provisions of the Covenant include the following:

• the inherent right to life, which shall be protected by law (Art 6(1));

• the right not to be subjected to torture, or to cruel, inhuman or degrading treatment or punishment (Art 7);

• the right to be treated equally before courts and tribunals, including the right to a fair and public hearing by a competent, independent and impartial tribunal established by law (Art 14(1));

• the right of a defendant to a criminal charge to certain minimum guarantees, viz:

· to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him

· to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it

· to have the free assistance of an interpreter if he cannot understand or speak the language used in court

· not to be compelled to testify against himself or to confess guilt (Art 14(3)(a), (b), (f), (g));

• the right not to be tried or punished twice for an offence (Art 14(7));

• the right of men and women of marriageable age to marry and to found a family (Art 23(2));

• the right not to marry without free and full consent (Art 23(3));

• the right of children, without discrimination, to such measures of protection as are required on the part of his family, society and the State (Art 24);

• the right to equality before the law to the equal protection of the law (Art 26).

With respect to the rights enumerated in the Covenant, each State party undertakes:

to respect and to ensure to all individuals within its territories and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property birth or other status.

and in particular:

in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative and other measures as may be necessary to give effect to the rights recognised in the present Covenant. (Art 2(2)).

Under Art 4(1) a State may temporarily derogate from some of the Covenant rights to the extent required by a proclaimed public emergency. However, no derogation is permitted from Art 6, 7, 8(1) (slavery) and (2) (servitude), 11, 15 (imprisonment for debt), 16 or 18 (freedom of thought, conscience and religion). This emphasises the primacy of the rights protected by those articles.^[34]

181. International Covenant on Economic, Social and Cultural Rights 1966. This is a counterpart Covenant to the Civil and Political Rights Covenant, to which Australia is also a party.^[35] It contains various fights of an economic, social or cultural character, which are at least as important as individual civil and political rights, but which are less precise and mostly capable of achievement only gradually. The important provisions of the Covenant for present purposes are those which recognise:

• the right to social security (Art 9);

• the need to accord the widest possible protection and assistance to the family, which is the natural and fundamental group unit of society. Marriage must be entered into with the free consent of the intending spouses (Art 10(1));

• the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions (Art 11(1));

• the right of everyone to take part in cultural life (Art 15(1)(a)).

There is no equivalent to Art 27 of the Civil and Political Rights Covenant. But Art 1 (‘self-determination’) is common to both.

182. Other International Instruments. Among other international instruments two are particularly relevant:

• International Convention on the Elimination of all Forms of Racial Discrimination, 1966. The Racial Discrimination Convention is the most-widely ratified human rights convention. Its operation, and in particular the definition of prohibited discrimination that it adopts, were discussed in the previous Chapter.^[36]

• United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1980. This Convention, now ratified and in force for Australia,^[37] seeks to guarantee the principle of equality of and non-discrimination against women. In particular it requires States to take ‘all appropriate measures, including legislation, to modify or abolish existing … customs and practices which constitute discrimination against women’ (Art 2(f)). The Convention also provides that:

The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official register compulsory (Art 1 6(2)).

The Convention has been implemented as part of Australian law by the Sex Discrimination Act 1984 (Cth) s 9(10). However, unlike the Racial Discrimination Act 1975 (Cth), the 1984 Act uses a range of other Commonwealth powers as a basis for prohibiting discrimination on grounds of sex in various fields, and its definition of discrimination differs substantially from the definition in the 1980 Convention.^[38] In particular the 1984 Act prohibits all formal discrimination on grounds of sex in the fields covered by its substantive provisions,^[39] but omits the ‘special measures’ provision of the Convention (Art 4), the equivalent of Art 1(4) of the Racial Discrimination Convention 1966 which, the High Court held in Gerhardy v Brown,^[40] plays a key role in that Convention. Instead, exemptions from the prohibitions on discrimination as defined in the Act are provided for in a series of specific provisions, and through a power vested in the Human Rights Commission to grant further exemptions on application.^[41] The extended definition of discrimination in the 1984 Act is capable of creating difficulties with restrictions on access to information or land by members of one sex, even though these restrictions may be based on Aboriginal customary laws or traditions and have the general support of the Aborigines concerned. These issues will be discussed in Part V of this Report, in the context of specific proposals which may involve conflict with the Act.^[42]

183. General Human Rights Standards and Indigenous Minority Traditions. A view sometimes expressed is that international human rights are a Western artefact, lacking validity for peoples of distinct cultures and traditions:

[H]uman rights as a twentieth-century concept and as embedded in the United Nations can be traced to the particular experiences of England, France and the United States … Thus to argue that human rights has a standing which is universal in character is to contradict historical reality. What ought to be admitted by those who argue universality is that human rights as a Western concept based on natural right should become the standard upon which all nations ought to agree, recognizing, however, that this is only our particular value system.^[43]

In fact the human rights treaties were concluded within the United Nations and elsewhere, in forums in which ‘Western’ states were in a minority. Participation in these treaties is of a universal, not a regional, character. Such participation results from the ratification or accession by States as an expression of their own national policy.^[44] Nor is the content of the Covenants merely an uncritical reflection of Western values. In important respects, non-Western countries influenced the terms of the Civil and Political Rights Covenant, in ways with which Western countries disagreed.^[45] What is true is that the Civil and Political Rights Covenant has to be interpreted and applied on a universal basis, in a wide variety of contexts and cultures. Its provisions are not to be interpreted in the light of just one of these cultures, however influential. But that is itself a function of the universality of the Covenant.

184. Article 27 and Specific Human Rights. One aspect of this problem of interpretation, not expressly addressed in the Civil and Political Rights Covenant, is the possibility of conflicting cultural responses to particular situations. For example, some aspects of the initiation of Aboriginal men might appear to an outsider to be harsh or cruel treatments: traditional Aborigines would regard them as an inevitable and necessary element of becoming a man, essential to the maintenance of their traditional life. By the same token, some punishments under the general criminal law (eg life imprisonment) would appear to many traditional Aborigines to be extremely cruel. They would, in many cases, agree that:

punishments … such as prolonged imprisonment especially among alien strangers and away from their own country [are] markedly more ‘inhumane and inconscionable’ than a spear through the thigh — usually voluntarily accepted as part of a consensus settlement.^[46]

One possible approach to these difficulties might be to treat Art 27 as qualifying the specific rights guaranteed elsewhere in the Covenant. Thus minority practices which are an essential aspect of ‘culture’ or ‘religion’ could be preserved, notwithstanding that they involved (for example) child-marriage or servitude. It is clear that such conflicts cannot be resolved in this way, by giving priority to Art 27. In the first place, some of the articles of the Covenant (but not Art 27) are fundamental and non-derogable even in times of national emergency. It is most unlikely that a less fundamental provision could prevail over a more fundamental one in the event of conflict between them. Secondly, the rights protected to minorities by Art 27 (‘to enjoy their own culture, to profess and practise their own religion’) are phrased in general, imprecise terms. They are clearly intended to operate against the background of specific protections granted elsewhere in the Covenant (eg the right to life). It is a generally accepted principle of interpretation that vague and non-specific provisions do not prevail over specific and limited ones. Thirdly, Art 27 protects the individual rights of members of minorities rather than conferring rights on minority groups as such.^[47] It follows that individual members of the group must be allowed freedom of choice between minority practices or culture and the protections of the general law, in matters where their own human rights as defined by the Covenant are at stake. The cultural practices protected by Article 27 cannot be used to preclude this choice.^[48] Finally and most fundamentally, the potential for conflict between established cultural practices or traditions and general human rights, and the need to take into account differing perceptions of terms, such as ‘cruel’ or ‘degrading’ punishment, which may be culturally relative, are not confined to the situation of minorities. The practices, traditions or perceptions may be those of an entire community which is a State party. It would be strange if the Convention addressed this problem only in the context of Art 27.

185. The Problem of Relativity of Standards. Although Art 27 cannot be used to derogate from or override the individual protections or rights guaranteed by other provisions of the Covenant, its presence draws attention to the possibility that evaluative terms used in the Covenant may have to be applied with some caution, taking into account the wide variety of views and cultural responses to particular conduct or treatment, in differing societies and traditions. Because the International Covenant is a universal document not based on the culture, philosophy or tradition of one part only of the world, so care is needed in interpreting it, to avoid introducing sectional values. On the other hand, it could be argued that a universal instrument of such a kind requires strict interpretation as establishing a categorical minimum standard of general application, and that even a modified form of relativity excluded. This conflict of views is relevant in assessing the impact of international human rights standards on proposals to the recognition of Aboriginal customary laws.

186. Practice under the European Convention on Human Rights. The European Convention on Human Rights of 1950, the substantive articles of which are in many cases similar to or the same as those of the International Covenant, provides an interesting study in this respect. Two preliminary points should be made. First , the European Convention, like the Universal Declaration of Human Rights, contains no specific provision for minority rights equivalent to Art 27 of the International Covenant. This omission was deliberate, despite the existence of a number of important ethnic, linguistic and religious minorities in European countries.^[49] On the other hand, there is provision in Art 63 for the Convention to be extended to overseas territories for whose international relations a State Party is responsible (eg colonies). When the Convention is so extended, its provisions are to apply to such territories ‘with due regard, however, to local requirements’.^[50] Presumably these requirements might include indigenous practices or institutions not fully consistent with the Convention’s standards. The converse argument might equally hold: in all other cases, ‘local requirements’ should not be allowed to affect the application of the Convention.

187. The Tyrer Case. The problem arose in the Tyrer Case,^[51] concerning the legality of corporal punishment (‘birching’) on the Isle of Man, under Art 3 of the European Convention. Art 3 prohibits ‘inhuman or degrading treatment or punishment’.^[52] The Court held that birching as a judicial punishment did violate Article 3. It said, in part:

The Attorney-General for the Isle of Man argued that the judicial corporal punishment at issue in this case was not in breach of the Convention since it did not outrage public opinion in the Island. However, even assuming that local public opinion can have an incidence on the interpretation of the concept of ‘degrading punishment’ … the Court does not regard it as established that judicial corporal punishment is not considered degrading by those members of the Manx population who favour its retention: it might well be that one of the reasons why they view the penalty as an effective deterrent is precisely the element of degradation which it involves … Above all, as the Court must emphasise, it is never permissible to have recourse to punishments which are contrary to Art 3, whatever their deterrent effect may be. The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present day conditions … [T]he Court can not but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field.^[53]

A peculiarity of the case was that the Isle of Man, as a consequence of its unusual constitutional status vis-a-vis the United Kingdom, had been treated under Art 63 as a territory ‘for whose international relations’ the United Kingdom was responsible, rather than as part of the United Kingdom. The Court thus had to decide whether ‘local requirements’ on the Isle of Man qualified its conclusion as to Art 3. The Attorney-General for the Isle of Man argued that birching was a well-established form of punishment there, endorsed by public opinion and recently reaffirmed by the local legislature. The principal delegate of the European Commission (which had brought the case before the Court) argued that ‘local requirements’ could rarely, if ever, justify a violation of Art 3, in view of its fundamental character; local opinion favouring birching was not, as such, a ‘local requirement’, and there were no significant social or cultural differences between the Isle of Man and the United Kingdom to warrant treating the Isle of Man in any special way under Art 63(3). The Court agreed:

The undoubtedly sincere beliefs on the part of members of the local population afford some indication that judicial corporal punishment is considered necessary in the Isle of Man as a deterrent and to maintain law and order. However, for the application of Art 63 para 3, more would be needed: there would have to be positive and conclusive proof of a requirement and the Court could not regard beliefs and local public opinion on their own as constituting such proof … The Isle of Man not only enjoys long established and highly-developed political, social and cultural traditions but is an up-to-date society. Historically, geographically and culturally, the Island has always been included in the European family of nations and must be regarded as sharing fully that ‘common heritage of political traditions, ideals, freedom and the rule of law’ to which the Preamble to the Convention refers … [T]he system established by Art 63 was primarily designed to meet the fact that, when the Convention was drafted, there were still certain colonial territories whose state of civilisation did not, it was thought, permit the full application of the Convention … [A]bove all, even if law and order in the Isle of Man could not be maintained without recourse to judicial corporal punishment, this would not render its use compatible with the Convention … [T]he prohibition contained in Art 3 is absolute and, under Art 15 para 2, the Contracting States may not derogate from Art 3 even in the event of war or other public emergency threatening the life of the nation. Likewise, in the Court’s view, no local requirement relative to the maintenance of law and order would entitle any of those States, under Art 63, to make use of a punishment contrary to Art 3.^[54]

188. The Dudgeon Case. The question arose again, in a different context, in the Dudgeon Case.^[55] Homosexuality between consenting adults remains a crime in Northern Ireland, although it has been decriminalized elsewhere in the United Kingdom (and, with some exceptions, in Europe generally). Dudgeon complained that the Northern Ireland legislation contravened Art 8 of the Convention, requiring respect for his ‘private and family life’.^[56] In fact the United Kingdom Government had proposed to decriminalize private homosexuality between consenting adults, but had been dissuaded from doing so by opposition from Northern Ireland religious groups. The question for the Court was whether the restrictions imposed by the law on Dudgeon’s ‘private and family life’ were, given the state of opinion in Northern Ireland, ‘necessary in a democratic society … for the protection of … morals’ under Art 8(2). On this point the Court said:

[I]n assessing the requirements of the protection of morals in Northern Ireland, the contested measures must be seen in the context of Northern Irish society. The fact that similar measures are not considered necessary in other parts of the United Kingdom or in other member States of the Council of Europe does not mean that they cannot be necessary in Northern Ireland … Where there are disparate cultural communities residing within the same State, it may well be that different requirements, both moral and social, will face the governing authorities … There is. the Court accepts, a strong body of opposition stemming from a genuine and sincere conviction shared by a large number of responsible members of the Northern Irish community that a change in the law would be seriously damaging to the moral fabric of society … Whether this point of view be right or wrong, and although it may be out of line with current attitudes in other communities, its existence among an important sector of Northern Irish society is certainly relevant for the purposes of Art 8(2).^[57]

The Court nonetheless held, by 15 votes to 4, that there had been a breach of Art 8. In the circumstances, it concluded that local public opinion did not justify intrusion into ‘an essentially private manifestation of the human personality’. In particular , the Court referred to:

the marked changes which have occurred in this regard in the domestic law of the member States … [T]he moral attitudes towards male homosexuality in Northern Ireland and the concern that any relaxation in the law would tend to erode existing moral standards cannot, without more, warrant interfering with the applicant’s private life to such an extent. ‘Decriminalisation’ does not imply approval, and a fear that some sectors of the population might draw misguided conclusions in this respect from reform of the legislation does not afford a good ground for maintaining it in force with all its unjustifiable features.^[58]

189. The Campbell and Cosans Case. These cases may be contrasted with the more recent decision in the Campbell and Cosans Case,^[59] which involved corporal punishment in Scottish schools. Corporal punishment was not in fact administered on either of the boys in question, but it would have been performed by a strap (‘tawse’) to the hand. The European Court held unanimously that the threat of corporal punishments in such circumstances was not degrading treatment under Art 3. The Court distinguished the Tyrer case in the following way:

Corporal chastisement is traditional in Scottish schools and, indeed, appears to be favoured by a large majority of parents. Of itself, this is not conclusive of the issue before the Court for the threat of a particular measure is not excluded from the category of ‘degrading’, within the meaning of Art 3, simply because the measure has been in use of a long time or even meets with general approval. However, particularly in view of the above-mentioned circumstances obtaining in Scotland, it is not established that pupils at a school where such punishment is used are, solely by reason of the risk of being subjected thereto, humiliated or debased in the eyes of others to the requisite degree or at all.^[60]

It is true that the Court was concerned only with the threat of corporal punishment rather than its infliction, but it is clear that the Court was not prepared to hold corporal punishment degrading as such. It was necessary to look at all the circumstances: in particular, it was relevant that the punishment was generally accepted by Scottish parents and was ‘traditional’ in Scottish schools.

190. Conclusion. To summarise, the European Convention contains no specific guarantee of minority rights. In cases such as Tyrer, Dudgeon and Campbell and Cosans, the European Court has acknowledged the relevance of local community attitudes and beliefs in the application of the Convention. ‘Absolute uniformity’ is not required,^[61] but at the same time a fairly strict view has been taken of the requirements of the Convention, notwithstanding local values in matters such as illegitimacy of children,^[62] contempt of court,^[63] corporal punishment,^[64] and adult homosexuality.^[65] The room for local or national judgments or standards (the so-called ‘margin of appreciation’) may be wider in cases involving morals than in other areas such as the protection of physical integrity or freedom of speech.^[66] However the Court has been prepared to impose its own view of European standards even in situations where there are ‘disparate cultural communities residing within the same State’. The Court appears to adopt a more rigorous standard than a court or committee with world-wide competence in the present stage of development of international human rights would do. The appeal to European developments and standards, to the progressive practices adopted in the member States of the Council of Europe, is explicit.^[67]

191. The Position under the Universal Human Rights Treaties. The position that would be taken under the Civil and Political Rights Covenant is by no means clear. However the problem did arise in the Lovelace case. Although the Human Rights Committee avoided pronouncing on the issue, certain inferences can be drawn from its views. It will be recalled that the Committee was able to decide the matter on the basis of Art 27 alone.^[68] After the breakdown of the marriage and Lovelace’s illegal return to the reserve, both Art 27 and Art 2 (non-discrimination) supported the conclusion that the section of the Indian Act excluding her from the reserve contravened the Covenant.^[69] The matter may have been different if Lovelace had remained married to her husband but wished to continue to ‘enjoy’ her ‘culture’ as a status Indian. In such circumstances, it is arguable that Art 2 and 27 may have been in conflict, since the Indian tribe was concerned both at the loss of assets to persons leaving the band, and also to avoid a situation of substantial numbers of non-Indian spouses within their community.^[70] The point was made by the Canadian Government in its submission to the Committee:

Traditionally, patrilineal family relationships were taken into account for determining legal claims. Since, additionally, in the farming societies of the nineteenth century, reserve land was felt to be more threatened by non-Indian men than by non-Indian women, legal enactments as from 1869 provided that an Indian woman who married a non-Indian man would lose her status as an Indian. These reasons are still valid. A change in the law could only be sought in consultation with the Indians themselves who, however, were divided on the issue of equal rights. The Indian community should not be endangered by legislative changes. Therefore, although the Government was in principle committed to amending section 12(l)(b) of the Indian Act, no quick and immediate legislative action could be expected.^[71]

On this point the Committee stated:

[T]he Committee is of the view that statutory restrictions affecting the right to residence on a reserve of persons belonging to the minority concerned, must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant, read as a whole … It is not necessary, however, to determine in any general manner which restrictions may be justified under the Covenant, in particular as a result of marriage, because the circumstances are special in the present case … Whatever may be the merits of the Indian Act in other respects, it does not seem to the Committee that to deny Sandra Lovelace the right to reside on the reserve is reasonable, or necessary to preserve the identity of the tribe.^[72]

It is very likely that the Committee would have found the Indian Act provisions to be sexually discriminatory, had the matter arisen for decision. Automatic exclusion of women marrying outside the tribe was by no means the only way of regulating group membership.^[73] But the decision is of interest in demonstrating the caution with which the Committee is likely to approach such issues.

192. General Conclusions. The materials referred in this Chapter suggest the following conclusions:

• The provisions of the Civil and Political Rights Covenant should be ‘read as a whole’ so as to be consistent with each other rather than to conflict.

• In this process of interpretation, clear and specific provisions of the Covenant prevail over general and vaguer provisions. For example the provisions of Art 6 with respect to the right to life and the death penalty are precise and specific. The toleration of tribal killing is inconsistent with Art 6, however much such killings may be, or have been, an aspect of the ‘culture’ of an ethnic minority.^[74]

• On the other hand, the Covenant was intended to apply to a wide range of economic, social and cultural environments. It is an attempt to establish minimum standards, not uniformity of treatment. It is not to be interpreted by reference to the standards and practices of one part only of the international community. Decisions of regional courts or bodies — such as the European Court of Human Rights — even on similarly worded provisions, cannot simply be assumed to apply to the Covenant.

• In particular, terms in the Covenant which imply a measure of cultural relativity may have to be applied by reference to the cultural community within which the case arose (including, by virtue of Art 27, a minority ethnic or cultural group.^[75] A good example is the notion of ‘degrading’ treatment (Art 7). What would be degrading in one community or culture might not be degrading, indeed, might be fully accepted in another. This is not to say that such terms lack meaning, or that the Convention establishes no standards at all.^[76] Some terms and concepts (eg the death penalty: Art 6) contain no element of relativity at all. Others enact, or imply, a world-wide standard of protection inherent in the individual person as such: for example, the prohibition of torture or slavery. But not all the Covenant’s provisions are of this kind. It is a mistake, for example, to assume that the protection given by Art 23 to ‘the family’ extends only to the nuclear family upon which Western society is supposedly founded.^[77] In communities where different family structures exist, it is those structures which Art 23 protects.

• For these reasons, and others, each case must be considered in its own context and in relation to the most precise or ‘directly applicable’ Covenant provision.^[78] Whether the Covenant has been violated depends not merely on the terms of the local law but on the method and circumstances in which it has been applied.

193. Ensuring Basic Human Rights: The Aboriginal Customary Law Reference. It follows that the impact of human rights standards on proposals for the recognition of Aboriginal customary laws depends on the particular proposal and cannot be discussed in the abstract, Detailed treatment of human rights issues is therefore left to particular chapters of this Report.^[79] On the basis of the survey of relevant human rights instruments in this chapter, and of its conclusions on those more detailed issues, the Commission believes that the recommendations in this Report do not involve violations of basic human rights for Aborigines or for other Australians. On the contrary, those recommendations are fully consistent with basic human rights. If implemented they would help to ensure those rights, as the Commission’s Terms of Reference require. This is particularly so in that in a number of respects present Australian law or its administration fail to respect fully the rights of Aboriginal people. Thus the non-recognition of Aboriginal marriages, and the excessive intervention by child welfare agencies in Aboriginal families that has been a feature of welfare practice in Australia, constitute a failure to respect Aboriginal family life.^[80] Aspects of police interrogation and court procedure have sometimes led in effect to Aboriginal defendants being compelled to confess guilt.^[81] The need to respect the human rights and cultural identity of Aboriginal people supports the case for appropriate forms of recognition of Aboriginal customary laws.