Arguments for the Recognition of Aboriginal Customary Laws

103. Aboriginal Customary Laws as a Continuing Aspect of Traditional Culture and Belief. A basic precondition for the recognition of Aboriginal customary laws is the simple assertion that it exists as a real force, influencing or controlling the acts and lives of those Aborigines for whom it is ‘part of the substance of daily life.^[3] The reality and relevance of customary laws as a guiding force for many Aborigines became increasingly apparent during the public hearings and during the field trips.^[4] The strength of this influence in the case of traditionally-oriented Aborigines was attested by a Baptist Minister who discussed the Commission’s proposals with older Warlpiri and Alyawarra men at Warrabri.

I found a tremendous depth of feeling in all discussions relating to their traditional law. It is so patently clear that traditional law is much more than simply matters of crime and punishment. The term ‘law’ is quite inadequate in fact, and does not accurately translate the various language terms used. Rather it is a religion — a way of life completely governed by a system of beliefs … The Dreaming is the ever-present unseen ground of being — of existence — which appears symbolically and becomes operative sacramentally in ritual.

The Dreaming is the Law — almost a personification. Behaviour and misbehaviour flow logically from the Dreaming, for Dreaming is a unitary principle involving determinism. It is the road that the individual must follow from birth to death, and from it the re is no escape. The men to whom I spoke found it very difficult to correlate particular aspects of their law to the ‘European’ law, for the reason I have tried to give above — that their law is an extremely complex whole, and it is not possible to extract one piece without affecting the rest of the structure.^[5]

This ‘tremendous depth of feeling’ exists for women of the same groups:

law [should] be seen as encompassing far more than the legal institutions which are the visible representations of the new law in Aboriginal communities. Law … has to do with peace maintaining strategies, resolution of conflict mechanisms and the ability to enter into and sustain correct relationships with one’s kin and the country of one’s ancestors. In all these areas of law women are important.^[6]

This applies also, the Commission has been told, in other areas of Australia:

There can be no doubt that all persons at Port Keats believe that recognition by Australian authorities should be given to the customary law of their region. All persons I spoke to on this point proffered their views unhesitatingly: there is a real need for a full and practical recognition of Aboriginal customary law. The principal reason for this is that customary law is that law which the Port Keats people recognise as binding upon them and to which they owe their prime allegiance. In considerations of personal duties and obligations a Port Keats Aborigine reflects upon what is binding upon him first in his tribal law context before he considers formal Australian law (if he considers Australian law at all) … If practical recognition of customary law is accorded to the people at Port Keats it will conform with the people’s self appraisal of what legal system binds them in their social and ceremonial conduct. Nor does the matter stop there: a cogent reason for the need for full recognition of customary law in the Port Keats region is that it will facilitate black and white Australians’ relations in the area. A hidden and quiet resentment is held by a significant number of people with the present formal Australian law as seen to operate at Port Keats (and where applicable, in Darwin). Australian law is seen as arrogant, ignorant and inept in its approach to Port Keats Aborigines: arrogant in that it does not recognise the binding nature of customary law and asserts itself as the sole law applicable to the Port Keats region; ignorant in that it does not take into account Aboriginal realities, Aboriginal offences, Aboriginal approaches to things legal; inept in that Australian law proceeds in a social vacuum — stipulations, rules and principles are operative at one level whilst tribal behaviour proceeds at another irrespective of the contents of that law. The universalist pretensions of Australian law are a little absurd in the context of the Port Keats region. With recognition given to their customary law by Australian authorities, the people would see this as a real attempt to communicate with and have respect for Aborigine values.^[7]

In the words of a senior Aboriginal community worker with a State Department of Community Welfare:

Aboriginal Customary Law which is still recognised and practised in traditional areas today is the same law which has been handed down from generation to generation and it must be recognised and respected by the Law Reform Commission.^[8]

104. Adverse Consequences of Non-Recognition. The existence and strength of Aboriginal customary laws need not, of itself, require specific legal recognition.^[9] One question is whether non-recognition has adverse consequences for those following Aboriginal customary laws. Implicit in many of the claims for recognition based on the reality of Aboriginal customary laws is the assertion that its non-recognition has been harmful, and that these harmful consequences can be avoided or alleviated through some form of recognition. In some specific ways the harmful effects of non-recognition are clear. Traditionally oriented Aborigines continue, in very many cases, to marry in accordance with their traditional law rather than under the general law. Except in the Northern Territory, these traditional marriages are not recognised for almost any purposes. The parties may encounter difficulties with the general law, because their children are illegitimate, or because they cannot adopt children, or in claiming compensation for accidents or social security benefits to which wives or widows are entitled, and so on.^[10] In other contexts, similar difficulties may exist. Actions required by Aboriginal customary laws may be prohibited, and punished, by the general law. Or an Aborigine may be dealt with within his own group for acts contrary to customary laws, and then be subject to a form of ‘double jeopardy’ through additional punishment under the general law.^[11]

105. Impact of Non-Recognition on Traditional Authority. It is, however, often argued that the non-recognition of Aboriginal customary law by the general law has had harmful effects extending far beyond specific problems such as these. A Sub-committee of the Queensland Law Society commented that there are:

very few areas or communities in Queensland where the effects of European settlement have been less than devastating on Aboriginal Customary Law and culture.^[12]

The non-recognition of customary laws in Australia has contributed to the undermining of authority in many Aboriginal communities:

If the immediate consequences of the interaction between Aboriginals and European law is confusion, the long-term effect has been the erosion of traditional culture and tribal authority. The authority of the community in general, and of the elders in particular, is challenged whenever an individual is punished for doing something which he has never been told is wrong. Their power is eroded whenever offences committed within the community are tried and punished by someone else and a strange punishment is imposed. Similarly knowledge of the ultimate ‘superiority’ of European law is a further challenge to the power of the elders … In our view the basic problems can be attacked only if an attempt is made to restore and maintain the traditional authority of tribal Aboriginals so that, to the maximum extent possible, European law is applied in tribal areas only at the request of the tribal community.^[13]

If such views are accepted, the question becomes, not whether Aboriginal customary laws should be recognised, but what form of recognition is most likely to give appropriate support to Aboriginal communities in maintaining order.

106. Aboriginal Support for Recognition. An essential pre-requisite of proposals for the recognition of Aboriginal customary law is that they are supported by those Aborigines to whom they will apply. The process of consultation in this Reference, both with men and women in Aboriginal communities and with Aboriginal organisations, was described in Chapter 2. Although there are great difficulties in consulting with Aboriginal communities, especially in remoter areas, difficulties which are greatly magnified when the consultation has to occur on an Australia-wide basis, it was possible to overcome these to some degree. The Commission found consistent support among Aboriginal communities, and Aboriginal people generally, for the basic idea of recognition of Aboriginal customary laws. There was, understandably, great caution about particular ways by which this recognition would occur. Many were concerned that ‘recognition’ might involve the loss of Aboriginal control over their law,^[14] and thus further deprivation. There was concern that secret aspects of Aboriginal laws would have to be revealed, or that outsiders would seek to change these laws.^[15] But recognition, in the sense of greater support for Aboriginal law and better contact and communication between the two systems, was strongly supported:

The Law Reform Commission needs to see some Aboriginal laws written into the non-Aboriginal law to be able to deal with these problems in a fair way to both sides.^[16]

The National Aboriginal Conference commented that:

One particular area that requires a great deal of attention is the integration of traditional law and western law.^[17]

The support of Aborigines themselves for the concept of recognition is only a beginning. Major questions of implementation remain. But this support is the essential foundation for recognition in any form, as well as a vital argument in itself for appropriate forms of recognition.^[18]

107. Australian Government Policy Towards Aborigines. Towards Aborigines. Federal Government policy towards Aborigines, which is based on the notion of self-management or self-determination, has already been referred to.^[19] This policy is reflected in the Commission’s Terms of Reference, which refer among other things, to:

the right of Aborigines to retain their racial identity and traditional life-style or, where they so desire, to adopt partially or wholly a European life-style.

To the extent that the exercise of the right to retain their racial identity and traditional lifestyle is prevented or impeded by the law’s failure to recognise Aboriginal customary laws, or is accompanied by unnecessary legal disabilities or disadvantages, that is itself a reason for recommending recognition. As Professor WEH Stanner pointed out in 1977:

No culture is self-sustaining: the ‘custom’ or ‘way of life’ depends on the observance of jural rules and moral evaluations under sanctions. In undertaking to let Aborigines who choose to ‘to retain racial identity and traditional life-style’ the Government has undertaken to meet the necessary conditions of their doing so.^[20]

An acknowledgement of this view was given by the Commonwealth Minister for Aboriginal Affairs, the Hon C Holding MHR in the House of Representatives on 8 December 1983. He commented that:

Aboriginal people have always had different concepts of guilt and innocence, crime and punishment. They have often settled disputes by consensus, recognising that there can be collective responsibility for misdemeanour. However, it is only recently, through such bodies as the Australian Law Reform Commission, that we have been prepared to see the value of Aboriginal attitudes towards the exercise of authority and responsibility. As legislators, we, especially, can learn much that can guide us to better laws, to a better view of the law, in these Aboriginal perceptions … We must also now reassess many of our attitudes towards Aboriginal customary laws reflecting all aspects of Aboriginal life.^[21]

108.The Maintenance of Order. One basis for recognition is the claim that Aboriginal customary laws can be seen to work, while existing non-Aboriginal law and order mechanisms have not been particularly effective in maintaining law and order in Aboriginal communities. According to Clifford:

our Western systems … have proved as socially ineffective as they have proved technically sophisticated. If we now wished to get nearer to the desirable balance between law and order and human rights, we need to develop customs and practices in ways previously neglected … When we think of Aboriginal customary law, therefore, we are not graciously recognising an inferior species of social control, but looking at a source of inspiration for the invigoration and improvement of the law of the land generally. Aboriginal problems with the criminal justice system are, therefore, opportunities for Australian initiatives and development in the prevention of crime and the improvement of criminal justice.^[22]

Thus there is support for the reinforcement of traditional authority within Aboriginal communities to assist in the maintenance of order:

The traditional Aboriginal punishment system is more effective in the case of the traditionally oriented Aboriginal person because the punishments are couched in terms of traditional values and are therefore both relevant and of impact. Punishments that are not based on the prevailing value system are either ineffective because they are meaningless and are therefore not felt as punishment, or, they can be destructive and repressive because they are so out of tune with prevailing values that they are considered barbaric and inhumane. This is a common reaction from non-Aboriginal persons when they hear of acts of traditional Aboriginal law enforcement. The reverse is equally true.^[23]

One view is that this support for traditional authority should be as wide-ranging as possible:

In my view either the conclusion should be reached that there is no scope in present day Australian society for the application of Aboriginal customary law (except possibly in relation to sentence) or the other step should be taken of providing, in certain circumstances, for Aboriginal customary law to be the law to be applied in the trial and punishment of particular offenders … Where … land belongs to a Land Rights group upon the basis of traditional ownership it is in my view appropriate for Aboriginal customary law to be applied within that area. It would be applied by the elders of the tribe who traditionally control that area … [I]n my view the scope [of tribal jurisdiction] should be as wide as possible … On the one hand, to give these powers to the traditional owners and, on the other hand, to take them away in the more significant and important cases is in effect to achieve nothing of practical value.^[24]

In contrast, others suggested that it would be possible to entrust only ‘small local trouble’ to Aboriginal law, with the general law dealing with the more serious or important cases.^[25] Many intermediate positions were suggested. But a common theme was the need to assist and support Aborigines in maintaining order in their communities, even though there was no agreement on how this could best be done.

109. Compensation for Aborigines. It is quite often argued that special measures should be taken by way of compensation to Aboriginal people for past wrongs.^[26] There can be no doubt of the reality of these wrongs. A House of Commons Select Committee pointed out in 1837 that:

It might be presumed that the native inhabitants of any land have an incontrovertible right to their own soil: a plain and sacred right, which seems not to have been understood. Europeans have entered their borders uninvited, and when there, have not only acted as if they were undoubted lords of the soil, but have punished the natives as aggressors if they evinced a disposition to live in their own country … If they have been found upon their own property they have been treated as thieves and robbers. They are driven back into the interior as if they were dogs and kangeroos.^[27]

But the compensation argument is difficult to apply in the present context. The relationship between the European settlement of Australian and its impact on Aboriginal peoples, and the present position of Aboriginal people, was discussed in Chapter 5. It is one thing to argue that the initial non-recognition of Aboriginal customary laws was shortsighted or wrong, and another to claim that recognition of Aboriginal customary laws is an appropriate form of restitution or compensation now. Apart from the question of the identity of the groups to and by whom ‘compensation’ is due, there is the difficulty that the form of compensation will not be of the same kind as what was lost. If recognition is to be extended to Aboriginal customary laws, this can now only be done by legislative action.^[28] The justification for such legislation can only be determined by taking into account the needs and wishes of Aboriginal Australians now. The compensation argument is a more direct one in the context of traditional land rights, where the grant of land has been described as ‘the doing of simple justice to a people who have been deprived of their land without their consent and without compensation’.^[29] Its importance for the recognition of Aboriginal customary laws is less direct.^[30] However, recognition as a form of redress for past wrongs may have real symbolic value:

I believe that formal recognition of the acceptance of customary law will have effects, viz:

(1) Aboriginals will be shown that customary law is recognised and respected by the wider community

(2) those non-Aboriginals assisting Aboriginal communities will know that traditional law is of importance and has been recognised as such by the Australian Government. There will therefore be less chance of it being ignored in the day-to-day administration of communities.^[31]

110. The Injustice of Non-Recognition. Where Aboriginal customary laws retain their traditional values and functions there is a strong argument for their recognition within the Australian legal system:

[S]ome Aboriginal laws are based on great wisdom and a deep understanding of human nature. We regard it as necessary, that the existence of such laws should be brought into consideration when tribal Aboriginal people stand on trial in Australian courts.^[32]

Failure to acknowledge the existence of such laws can produce injustice:

It is obviously wrong that a person should be punished when he not only did not know that the alleged offence was an offence against the law, but positively thought that he was obliged or entitled to carry out the act for which he is charged.^[33]

There is general agreement that certain forms of non-recognition are unjust. To fail to acknowledge, for example, the legitimacy of (and the need for protection of the parties to) a traditional marriage has been variously described as ‘absurd’,^[34] ‘offensive’^[35] and ‘plainly unjust’,^[36] although exactly what form that acknowledgement should take, given the differences between traditional marriage and Marriage Act marriage, is another question.

111. The Need for Consistency and Clarification of the Law. The strength of the arguments for recognition of Aboriginal customary laws has been reflected in the efforts of judges, magistrates and other law-enforcement authorities in a number of cases to take account of Aboriginal customary laws even without legislative support. This practice has been common in sentencing, but has occurred in other areas, including the admissibility of evidence, court practice and procedure, the exercise of prosecutorial discretion, and the recognition of traditional marriages for particular purposes.^[37] This form of case-by-case development allows for local or particular difficulties to be taken into account, and for a necessary measure of flexibility. It deals with particular cases rather than abstract propositions, in an area where abstract propositions are more than usually dangerous. But this form of ‘recognition’ may not be a complete answer. It depends very much on the judge, magistrate or official in the particular case, and therefore tends to be inconsistent. Few of the judicial or other developments have become firmly established through the approval of appeal courts or Parliaments. Such forms of recognition of Aboriginal tradition and custom may therefore be dependent on executive or judicial discretion.^[38] In other cases there can be disappointment and frustration, or pressures leading to unacceptable distortions of the legal system. For example, there can be great difficulty in proving Aboriginal customary laws where they may be relevant. Assertions about Aboriginal customary laws, or about Aboriginal community opinion, may be made from the Bar table, without being properly tested or verified. This can lead to poorly informed decisions. Similarly, there is no regular way of presenting Aboriginal community opinion direct to a court. The pressure of community opinion is, in the absence of regular procedures, often directed at the Aboriginal legal aid organisation or its lawyer, putting defence lawyers in a difficult situation of conflicting interests:

Legal Aid face an impossible dilemma in deciding whether they can put forward community views adverse to their client and still honour their professional obligation in the solicitor/client relationship.^[39]

As a Sub-Committee of the Queensland Law Society pointed out, legislation establishing a proper procedure for proof of customary law or community opinion:

would enable the law to be established in the particular case impartially and without distortion, as may happen in the case where either of the usual parties in the proceedings has an interest in seeking a particular result.^[40]

The Commission has been told of cases where Aboriginal Legal Aid has been instructed by particular communities not to defend certain persons or classes of persons, or where statements or opinions adverse to a defendant have been given to counsel for the defence to be used in court.^[41] There is an obvious need for clarification of the issues and procedures.^[42]

112. Other Arguments. Other arguments that are or could be made in support of the recognition of Aboriginal customary laws tend to be of a general character, and do not provide specific guidance. For example the effect on Australia’s international reputation of its treatment of Aboriginal people is frequently given as a reason for action:

More than any foreign aid program, more than any international obligation which we meet or forfeit, more than any part we may play in any treaty or agreement or alliance, Australia’s treatment of her Aboriginal people will be the thing upon which the rest of the world will judge Australia and Australians … The Aborigines are a responsibility we cannot escape, we cannot share, cannot shuffle off; the world will not let us forget that.^[43]

On the other hand there is no international consensus on the extent to which it is obligatory, or even desirable, to recognise indigenous law and tradition.^[44] A degree of international interest in and concern for the relations between Aborigines and other Australians exists, and is an aspect of a wider concern for indigenous minorities throughout the world. That interest and concern does not dictate particular solutions or approaches. It does, however, provide an opportunity for Australia to give a lead by establishing more enlightened laws and policies, in cooperation with Aboriginal people.