Editors --- "Report of the Committee of Inquiry into Aboriginal Customary Law: Report on Aboriginal Customary Law - Digest" [2003] AUIndigLawRpr 46; (2003) 8(3) Australian Indigenous Law Reporter 91
Inquiries and Reports - Australia
Report of the Committee of Inquiry into Aboriginal
Customary Law:
Report on Aboriginal Customary Law
Northern Territory Law Reform Committee
November 2003
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Recommendations
Recommendation 1: Cross cultural training.
That Judges, Magistrates, Court officials and other appropriate persons should receive cross-cultural training in Aboriginal affairs.
Recommendation 2: Video conferencing.
It is recommended that Communities have access to video conferencing facilities to avoid the need of Community elders and witnesses travelling often to Court hearings.
Recommendation 3: A whole of government approach.
That government take into account the relevance of Aboriginal customary law in the delivery of services to Aboriginal communities and any strategy to recognise traditional law should not cut across other government services or programs on Aboriginal communities.
Recommendation 4: Law and justice plans.
Aboriginal communities should be assisted by government to develop law and justice plans which appropriately incorporate or recognise Aboriginal customary law as a method in dealing with issues of concern to the community or to assist or enhance the application of Australian law within the community.
Recommendation 5: Responding to promised marriages.
That so far as the concept of ‘promised brides’ exists in Aboriginal communities, the government sets up a system of consultation and communication with such communities to explain and clarify government policy in this area.
Recommendation 6: Inquiry into the issue of payback.
The Committee recommends to government that it establish an inquiry into the extent to which the traditional law punishment of payback is a fact of life on Aboriginal communities, and develop policy options for government to respond to the issue.
Recommendation 7: A community sentencing model.
The Committee recommends a model allowing for community input into the sentencing of offenders, for adoption by Aboriginal communities and the courts.
Recommendation 8: A pilot project.
The Committee recommends government proceed to assist Aboriginal communities to implement law and justice plans, by making resources available for several pilot programs.
Recommendation 9: Increased participation of Aboriginal people in the justice system.
The Committee recommends government develop strategies to increase Aboriginal participation in the justice system.
Recommendation 10: Law reform strategy.
The Committee recommends government adopt a policy of ensuring the application of the general law of the Northern Territory does not work injustice in situations where Aboriginal people are subject to rights and responsibilities under traditional law, and that statute law should in appropriate occasions recognise this.
Recommendation 11: Aboriginal customary law as a source of law.
The Northern Territory Statehood Conference resolution that Aboriginal customary law be recognised as a ‘source of law’ should be implemented.
Recommendation 12: Transfer to Aboriginal members.
That such of the present Aboriginal members of this Committee who consent to do so, should remain as a Consultative Committee to the Attorney General about the operation of these recommendations with the Attorney General having the discretion to appoint further Aboriginal members.
1. Summary of Recommendations
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The Major Recommendations
1.4. Government should adopt a whole of government approach: This recommendation means that any strategy to recognise traditional law should not cut across other government services or programs. It also means that services can support or complement each other.
1.5. Government should assist Aboriginal communities to develop law and justice plans: The general recommendation is that each Aboriginal community should be assisted to develop its own plan to incorporate traditional law into the community in anyway that the community thinks appropriate. The inquiry’s general view is that each Aboriginal community will define its own problems and solutions.
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3. Aboriginal Customary Law
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3.9. ... Aboriginal members of the Committee and many others who have expressed their views, have emphasized Aboriginal tradition as an indivisible body of rules laid down over thousands of years and governing all aspects of life, with specific sanctions if disobeyed.
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3.11. In our view this would defeat the ‘customary’ part of Aboriginal customary law by drawing it into the general body of legislation and taking away from the Aboriginals their own interpretations which may very well be very different from what the lawyers would say. ...
3.12. Customary law is too general, too much dependent on interpretations foreign to lawyers, and too much dependent on specific local conditions to be frozen into the statute book. Furthermore, Aboriginal customary law contains matters which can only be known to certain specified groups in Aboriginal communities, and to write it down for all to read would be a serious infringement of confidentiality and of the custom itself.
3.13. It is therefore better, in our view, to leave the interpretation of Aboriginal customary law to the Aboriginal people themselves who have had centuries of knowledge and practice behind them, of which others can have very little concept.
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3.15. This is not to suggest that Aboriginal people will not recognise universal human rights, but that, to the extent traditional law may authorise acts contrary to the human rights obligations provided for in Commonwealth, State or Territory legislation, some elements of traditional law must be at least modified. ...
4. The Unique Position of the Northern Territory
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4.3. The important factor is that it appears to many Aboriginal people that traditions and customs recognised and applied by Aboriginal people over thousands of years have not been sufficiently or properly recognised by non-Aboriginals, and particularly by those concerned with making and administering the laws of the Northern Territory.
4.4. Aboriginal customary law is a fact of life for most Aboriginal people in the
Northern Territory, not just those in Aboriginal communities ... Generally speaking, a person must go through the traditional law in the proper way before he or she acquires the relevant rights and responsibilities.
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4.7. Not all Aboriginal people in the Territory may be actively affected by the rights and responsibilities required by traditional law. ...
5. General Approach and General Recommendations
Australian Law Cannot be Completely Excluded
5.1. ... for practical purposes, the option of only traditional law applying in an Aboriginal community denies some legal rights to Aboriginal people. Submissions to the Committee proposed models for ‘two laws working together’.
Better Dispute Resolution on Aboriginal Communities
5.2. Traditional law can sometimes be better than Australian law at solving disputes in Aboriginal communities ... However, sometimes, Australian law may be better suited ... There are concerns that the reintroduction of customary law may in practice mean increased control by male elders who may themselves be perpetrators of violence, or have kinship obligations to perpetrators. Nevertheless, the Committee recognises that traditional law may still be appropriate for many purposes.
Cross Cultural Training
5.3. ... The Family Court has, for some years, instituted a program of cultural awareness. It recognises that such programs should be more comprehensive than merely lectures and seminars. The aim has been to sit down with Aboriginal people and discuss problems in an informal way.
5.4. The Committee is in no doubt that a carefully planned and culturally sensitive program, with the assistance and presence of Aboriginal people, would benefit all those involved in court processes.
5.5. Similarly, the reverse approach can be adopted, in that effort needs to be made by government to explain to Aboriginal people, the general law system.
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Modern Technology
5.6. The Committee notes that the increasing use of modern technology can assist the way government delivers its justice and other services to Aboriginal communities. As such, it can assist courts and other bodies to understand the relevance, if any, of traditional law to the matter at hand. Without this facility such information may not be available.
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Better Delivery of NT Government Services to Aboriginal Communities
5.7. ... Government strategies that can incorporate relevant traditional law will be more successful than those that don’t.
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Better Delivery of Services by Aboriginal Communities
5.8. ... Recognition of traditional law may assist a particular Aboriginal community to deliver its services to community members. This is a matter to be dealt with by specific Aboriginal communities. ...
Australian Laws which Fail to Accommodate Traditional Law (Where this is Relevant) may be Unjust in their Application to Aboriginal People
5.9. This issue is that Australian law should recognise traditional law if a failure to recognise traditional law would be unjust ...
5.10. This aspect covers all areas of law: family law, civil law and criminal law. ...
5.12. The Committee’s general view is that initiatives to recognise Aboriginal customary law should not impede or adversely affect the delivery of other government services or programs in Aboriginal communities, such as health, education or policing services. Such initiatives should be developed or delivered in a co-ordinated way with existing local justice plans or other programs or Committees.
5.13. ...Interpretation services should continue and expand.
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Limitations of Report
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5.16. The primary recommendations of the Committee relate to the ability of the traditional law to assist with law and justice issues on Aboriginal communities. The ability of Aboriginal customary law to assist positive outcomes with respect to socia l well being is also recognised, through its role in assisting with the resolution of disputes, and enhancing the respect for Aboriginal traditions and culture.
5.17. The recommendations are aimed at strengthening traditional Aboriginal law and thereby instilling self-confidence. ... But otherwise the Report is aimed more at legal consequences and arrangements rather than a detailed examination of scientific, sociological and economic aspects of Aboriginal life in the Northern Territory, which are inquiries beyond the expertise of the present members.
6. Equality before the Law
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6.3. ...a statutory recognition can and should be given to Aboriginal customary law to those communities who seek such recognition.
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6.5. One form of statutory recognition could be somewhat in these terms:
That upon application to the Attorney-General an Aboriginal community may apply for recognition, within the community, and by those who consent to it, of such Aboriginal customs and traditions as the community sees fit and which shall therefore be recognised as lawful and binding upon those who accept it, provided that such customs and traditions do not transgress the general laws of the Northern Territory or universal human rights and fundamental freedoms.
6.6. For reasons already given it is not suggested that these customs and traditions be precisely defined. It should be sufficient that the broad boundaries of what is sought can be discussed with the Attorney General or his representative and agreement reached on these broad terms.
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6.8. It is emphasised that the whole concept must be based on voluntariness and no person should be forced into the compact against his or her will. On the other hand the communities should have the right, which in many cases they already exercise, of expelling a person who does not wish to be bound by the compact or at least denying to that person the advantages of belonging to the community. ... There is a free choice and the option to merge into the more general society of the Territory should carry with it the responsibility of accepting that free choice. ...
6.11. The Committee’s general view is that each Aboriginal community will define its own problems and solutions ... There should be no limit on the issues that Aboriginal communities can use traditional law for ...[however,] the Committee does not support the development of plans that infringe on basic human rights and freedoms.
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6.13. These models may deal with matters such as alternate dispute resolution processes, a structured system of police caution protocols, a panel of experts to assist magistrates on issues of customary law and so on. They are part of the community developing its own strategies. ... This will be a formal agreement between the community and the relevant government agency, not having the force of law. All such arrangements will be subject to the general law.
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6.16. Processes must ensure that the voices of Aboriginal women, young people and less dominant groups are heard and taken into account. Their rights to equal protection under the Australian law must not be compromised. ...
6.17. The Committee generally agrees with the approach adopted by the ALRC:
the need for consistency with fundamental values of non-discrimination, equality and other basic human rights does not preclude the recognition of Aboriginal customary laws. On the contrary, these values themselves support appropriate forms of recognition of the cultural identity of Aboriginal people.
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Promised Marriages
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6.23. In Aboriginal customary law, marriages may be agreed between the prospective husband and the persons responsible for a young girl. This is a contract to which the child is not a party. The contract imposes material obligations on the prospective husband with respect to the child and her family; and obligations on the parents and child with respect to the prospective husband.
6.24. ... However it should be noted that the social expectations of all the families involved are that the marriage would normally proceed.
6.25. Additionally, as the relationships involved are usually between senior men and girls under 16 this raises policy issues of fully informed consent and an imbalance of power relationships.
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6.29. The Committee ... emphasises that it should be made clear that such contracts are not recognised by Australian law and that authorities are bound to act to protect the child whatever may be the expectation of the community. Clearly, this is a matter for communication and consultation between Aboriginal communities and government authorities. The Committee endorses the view, that in all such situations, the welfare of the child is the paramount concern of the law and does not see a need to modify this fundamental principle.
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Payback (Spearing)
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6.38. In the case of ‘payback’ there is clear potential for a profound conflict between the operation of the general criminal law and Aboriginal customary law.
6.39. From the general law perspective, to the extent payback involves the infliction of any bodily harm the person inflicting it is potentially exposed to criminal liability for assault or worse. That exposure exists independently of the victims consent to the procedure (section 26(3) of the Criminal Code). On the other hand, from the Aboriginal perspective, the mechanisms by which customary law responds to transgressions must be followed if the wrong is to be righted. ...
6.40. ... [T]he Committee identifies it as a matter necessitating a government response. The nature of that response is a matter for government, however, it appears to the Committee that any substantial progress towards an accommodation is unlikely unless it involves a meeting of senior Aboriginal law people and their ‘counterparts’ in the general law system.
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7. A Traditional Committee
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7.3. We recommend that, on application by an Aboriginal community and in consultation with them, the Attorney General or his representative establish a Consultative Committee which may appear in court when a member of that community is charged with an offence. The Committee should be chosen after consultation with the Attorney General or his representative to ensure appropriate representation. 27 In cases which they think appropriate, and where the Court has found the offender guilty of the offence, the Consultative Committee or its representative may request the Court to let the community deal with it. If the Court consents, it may adjourn the case and refer the matter to the community and record that this has been done.
7.4. ... The process must be entirely voluntary, that is, the offender and all those affected by his acts must consent to it, and the Court must have the discretion to allow it...
7.5. At the adjourned hearing the Court may take whatever action it thinks appropriate upon being told what resolution has been arrived at by the community. ...We also emphasise that if the matter goes to the community, no legal representation should be allowed.
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7.11. The main advantage of the scheme is its flexibility and the fact that it is entirely voluntary and no pressure is put on any community to accept it. ...
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7.16. However, reference should here be made to the question of domestic violence.
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7.18. While it is not suggested that the general law system of restraining and protection orders and proceedings for breach of such orders and for assaults always carries greater protection, the onus should be on those who submit that the case can be better dealt with by traditional methods, to establish that proposition, and the court should only allow such an application, if it is satisfied that the victim has given informed consent to that course, and only then after consulting with legal advisers.
8. Aboriginal JPs and Greater Aboriginal Participation in the Justice System
8.1. We understand that it is the policy of government to encourage more Aboriginal Justices of the Peace. We suggest that this can also be utilised by setting up courts composed of Aboriginal JPs to deal with minor criminal matters in communities ... The real advantage would be the obvious one of including more fully and more conspicuously Aboriginals into the general law system.
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8.6. We repeat that this situation is not really under the category of Aboriginal customary law and indeed the JPs would be in error if they saw their jurisdiction as being that. As with the Magistrates Courts, an Aboriginal Committee could apply to have the case handed over to them. But it would be an expression of confidence to give this jurisdiction to Aboriginal JPs in particular districts.
8.7. In addition to greater participation by JPs, serious efforts should be made to increase Aboriginal participation generally in the law, particularly in the Police Force and among court staff.
9. Applications to Individual Statutes
9.2. Background Paper 3 identifies a series of specific issues with respect to reform of legislation as it affects Aboriginal people. The basis of reform of the law should be that the law should not work injustice ... This must be done on a topic by topic basis. But the process we suggest is not complicated. From time to time, and as various statutes come up for review, and where for example in those statutes the court is directed to take certain matters into account, consideration should be given to including in those matters a phrase such as ‘the view of Aboriginals in a particular community and the effect the decision will have in that community when it appears to the court that this is a relevant matter to be taken into account’.
9.3. The recognition of customary laws may also bring about an increase in the knowledge and recollections of customs and traditions. ...
9.4. Additionally, the process of recognising customs and traditions, provides an opportunity for Aboriginal culture to grapple better with problems arising in contemporary society. ...
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10. Aboriginal Customary Law as a Source of Law
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10.3. It is, however, the view of the Committee that, in the event of any legislative reform dealing with this issue, whether or not the Northern Territory becomes a State, the resolution of the Northern Territory Statehood Conference should be implemented.
10.4. The Aboriginal Land Rights (Northern Territory) Act 1976 already recognises Aboriginal customary law as a source of law, in the sense that it has the ability to affect the application of certain Northern Territory law to land vested in an Aboriginal Land Trust. ...
10.5. By reading ss 71 and 74 together, the effect of s 74 is qualified by any occupation or use on Aboriginal land ‘in accordance with Aboriginal tradition’. Predicting the extent to which Territory laws will ultimately be found to be inapplicable is difficult because of the imprecision surrounding the term ‘Aboriginal tradition’. The definition of ‘Aboriginal tradition’ in s 3 is not specific enough to be of much use.
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11. A Pragmatic Approach
11.1. It should be obvious that this Report is confined to practical steps which can be taken immediately. In other words it seeks to work from the bottom up rather than from the top down. ...
11.7. ... [W]hat is sought to be presented are some immediate practical steps which appear obvious from what is taking place already and which are recognised by many of those who have been interviewed.
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12. Transfer to Aboriginal Members
12.1. It is the view of the members of the Committee that after consultation with the Aboriginal members and after presentation of this Report, the members of the Northern Territory Law Reform Committee should withdraw, and leave any further discussions or recommendations to the Aboriginal members, augmented if the Attorney General thinks necessary by other Aboriginal appointees ...It is for the Aboriginal members, in such way as they wish, to expand upon this Report and make further recommendations.
12.2. Achievement of the objects of this Report can be referred to either the Aboriginal members of the Committee, or a wider reference group. Whatever form further consultation takes, the Committee believes it is of fundamental importance that government fully consult Aboriginal people in the development and implementation of any reforms.
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Footnotes omitted.
The full text of the Report is available online via the Northern Territory Department of Justice website at <http://www.nt.gov.au/justice/docs/lawmake/ntlrc_final_report.pdf> .