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THE RECOGNITION OF ABORIGINAL CUSTOMARY LAWS - 20. The Commission's Assessment.
On this basis, and despite the difficulties already referred to, the Commission believes that its program of seeking information and of discussion has been sufficient to enable it to make the recommendations that are made in this Report. There was widespread agreement among Aboriginal people on certain general matters, such as the need for the 'two laws' to work together. A number of Aboriginal communities expressed a keen desire for the general legal system to support those with traditional authority in their endeavours to deal with offenders in their own communities. For some, at least, the general Australian law was considered too weak. It did little, in particular, to solve alcohol-related conflicts. But Aboriginal people also wanted to ensure that they maintained the option to 'send their people through the white court system'.22 Thus there was support for the general idea of recognition of Aboriginal customary laws alongside the general law. There were, of course, disagreements and differences of emphasis when it came to the detailed implementation of these objectives. These differences of opinion are another indication of the complexity of the issues. The difficulties inherent in understanding Aboriginal laws and traditions and in formulating an acceptable legal response to them presented real obstacles to consultation. As the then Deputy National Chairman of the National Aboriginal Conference commented:

These are considerations for Aboriginals to anguish over and to decide. They cannot be rushed to suit the timetables of government Commissions. You cannot condense thousands of years of wisdom into a take it or leave it package.23

An additional feature was the way in which, as debate proceeded and the Commission's tentative proposals evolved, earlier views and perceptions of the issues tended to change. As one observer noted:

This is a particularly difficult time for the Commission to be undertaking this reference. In several senses, it is aiming at a 'moving target'. Historical and anthropological views regarding the aboriginal/white interface are changing and developing rapidly. To a large degree, this is the result of recognition that there are real problems to be solved..."24

On the other hand, as attention was focused on specific measures or proposals in particular areas a measure of agreement emerged, both as to the Commission's basic approach and its particular recommendations. Taking into account all these factors, the Commission makes the recommendations set out in Chapter 37 in the belief that these recommendations are desirable on their merits at the present time, and that they are likely to gain the general support of the Aboriginal people affected by them.25 However, for the reasons that have been given, this judgment needs to be confirmed by the Government though direct consultation with appropriate Aboriginal organisations and people. Recommendations to this effect, and discussion of other related issues of implementation of this Report, are set out in Chapter 39.


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