Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
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.
The Terms of Reference went on to specify particular questions - namely, whether existing courts should be able to apply Aboriginal customary law to Aborigines, and whether Aboriginal communities should have the power to apply their customary laws and practices in the punishment and rehabilitation of Aborigines. These questions are not new. One hundred and forty years earlier, the British House of Commons Select Committee on Aborigines had stated that to require from Aborigines 'the observation of our laws would be absurd and to punish their non-observance of them by severe penalties would be palpably unjust'. 1 But these views were not reflected in the actual recommendations of the House of Commons Select Committee, nor in subsequent policy decisions.2 Indeed, in the same year, the Colonial Office had directed the Governor of New South Wales to ensure that all Aborigines within his jurisdiction were to be treated as British subjects. Aborigines and non-Aborigines were to be governed by the one, introduced, law? 3
I would submit, therefore, that it is necessary from the moment the Aborigines of this Country are declared British Subjects they should, as far as possible, be taught that the British Laws are to supersede their own, so that any native, who is suffering under their own customs, may have the power of an appeal to those of Great Britain, or, to put this in its true light, that all authorized persons should in all instances be required to protect a native from the violence of his fellows, even though they be in the execution of their own laws.4'
Thus no specific recognition was to be given to Aboriginal customary laws and practices. Australian law, civil and criminal, substantive and procedural, was to be applied to Aborigines to the exclusion of their own laws except in the rare cases where legislation made specific provision to the contrary? 5 This, and other governmental policies applied since 1788 at the national, State and local levels, have had a drastic impact on Aboriginal customs and culture. The resulting destruction of traditional Aboriginal life and values in many areas has made the task of recognition nearly 200 years later both difficult and very different from what it would have been had Aboriginal peoples been treated with, from the first, as distinct peoples with their own institutions of government and laws. A basic question, implicit in the Terms of Reference, is whether the impact of the introduced culture and legal system, and the associated drastic changes in Aboriginal society, still permit measures for the recognition of Aboriginal customary laws. If they do, what form should such recognition now take?