Questions of Interpretation and Approach

86. The Terms of Reference: Narrow or Broad? The Terms of Reference were set out, and briefly explained, in Chapter 1. The Commission is to examine:

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 and, in particular:

(a) whether, and in what manner, existing courts dealing with criminal charges against Aborigines should be empowered to apply Aboriginal customary law and practices in the trial and punishment of Aborigines;

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

(c) any other related matter.

It is clear that the focus of inquiry is the recognition of Aboriginal customary laws and practices. This has led to the criticism that the Terms of Reference are ‘no wider than a bandaid’^[1] and that the Commission should have been asked to concentrate on the real issues underlying law and order problems in Aboriginal communities, in particular such matters as alcohol abuse, petrol sniffing, juvenile offenders, and more fundamentally, lack of Aboriginal autonomy and land rights.^[2] The Terms of Reference do not cover the whole range of general problems Aborigines have with the Australian legal system, this does not mean that they leave only a restricted field for inquiry. It would be possible to regard Aboriginal customary laws as restricted to the tradition al laws and practices followed by Aboriginal people before European contact, and to deny that adaptive or modern forms are entitled to be called ‘customary laws’. Adopting such views would lead to the conclusion either that Aboriginal customary laws no longer exist, or that they are such a restricted or isolated phenomenon as not to warrant recognition. But it is also possible to take the view that Aboriginal customary laws include modern versions or developments, that they deal with ways of life and social ordering still followed by many traditionally oriented Aborigines today.^[3] Similarly, the notion of ‘recognition’ can be regarded in different ways — narrowly, as extending only to the incorporation or enactment of particular rules (eg by way of codification), or widely, as covering a variety of methods of recognition, reinforcement or accommodation of Aboriginal customs or traditions. In determining which view of these questions to adopt, some assistance is given by the matters listed in the Terms of Reference as relevant to the Commission’s inquiry. These are:

• the special interest of the Commonwealth in the welfare of the Aboriginal people of Australia;

• the need to ensure that every Aborigine enjoys basic human rights;

• the right of Aborigines to retain their racial identity and traditional lifestyle or, where they so desire, to adopt partially or wholly a European lifestyle;

• the difficulties that have at times emerged in the application of existing criminal justice system to members of the Aboriginal race; and

• the need to ensure equitable, humane and fair treatment under the criminal justice system to all members of the Australian community.^[4]

The breadth of these considerations strongly suggests that the Commission was intended, within the general parameters of the ‘recognition of Aboriginal customary laws’, to consider practical measures addressing the difficulties arising from the interaction between the general legal system and Aboriginal groups with their own traditions and customary laws.

87. Purpose of this Part. The purpose of this Part is to consider these basic issues of definition and approach, as well as the general arguments about the recognition of Aboriginal customary laws. As the Terms of Reference suggest, arguments about whether Aboriginal customary laws should in principle be recognised are of a wide-ranging character. They include, in particular, the arguments that special laws recognising Aboriginal customary laws or traditions may be discriminatory or unequal, or that they may involve in some cases at least a denial of other basic human rights. It is only if recognition is considered desirable in principle that specific questions — for example, what changes in the law may be necessary to take account of Aboriginal traditions and customary practices, and to what extent Aborigines should be empowered to apply customary practices in maintaining law and order in their communities — arise for consideration. This Chapter will discuss:

• the definition of ‘Aborigine’ for the purposes of the Reference (para 88-95); and

• the position of Torres Strait Islanders, and of Pacific Islanders in Australia (para 96-7): and

• the meaning of the term ‘Aboriginal customary laws’ (para 98-101).

The remaining chapters in this Part will go on to consider basic issues underlying the Reference as a whole, that is to say:

• general arguments for and against the recognition of Aboriginal customary laws (Chapter 8);

• arguments from the notions of discrimination, equality and equal protection, and legal pluralism (Chapter 9);

• arguments from the standpoint of basic human rights (Chapter 10).

Chapter 11 will then summarize the Commission’s general approach to the Reference and the different forms that recognition may take and will outline the consequent scope of the Report. This leads to an examination in detail of specific areas for recognition, in Parts III–VII of this Report.