Reconciliation and Social Justice Library

THE RECOGNITION OF ABORIGINAL CUSTOMARY LAWS - 691. Approaches for the Commission.

Clearly there are a number of different approaches in the field of 'law and order' in Aboriginal communities which might be taken. These include:

· the recognition of local customary laws and of the authority of the group to apply customary law procedures and sanctions;

· the conferral of autonomy in law and order matters (whether or not alongside other matters) on particular Aboriginal groups. This is likely to include both customary and non-customary matters, and would certainly involve a degree of control over outsiders;

· the creation of Aboriginal courts to hear defined offences, whether customary or not, committed within an Aboriginal community;

· the use of Aboriginal personnel (e.g. Aboriginal police, police aides, justices of the peace) in applying the general legal system to Aborigines.

The difficulty is that the Terms of Reference appear only to envisage the first of these approaches, while in Australia and some other countries all or most of the emphasis has been on the third and fourth. Aboriginal groups would probably emphasise the second. These questions will be returned to in Chapter 31. But whatever restrictions the Terms of Reference may impose on the recommendations or proposals the Commission can make, it is undesirable to consider the first approach in isolation from the others. The following Chapters of this Part examine what practical models are available for adoption by Aboriginal groups and what changes in practices or procedures might be made to accommodate Aboriginal views and needs.