Weisbrot, David --- "Comment on the ALRC Discussion Paper: Customary Law" [1981] AboriginalLawB 3; (1981) 1(1) Aboriginal Law Bulletin 3

• Comment On The Alrc Discussion Paper: Customary Law
• Static View Of Customary Law
• Integration Or Separate But Equal?

---

Comment on the ALRC Discussion Paper:
Customary Law

David Weisbrot

In November 1980 the Australian Law Reform Commission released its 91-page Discussion Paper No. 17, Aboriginal Customary Law - Recognition?, after nearly four years of research, travel and debate. The 1977 Reference by the then Attorney-General Ellicott began with a statement about the special interest of the Commonwealth in the welfare of Aborigines; the need to ensure their racial identity and traditional lifestyle if they so wish; and the need to ensure equitable, humane and fair treatment under the criminal justice system. The actual terms of reference, however, only directed the Commission to inquire into the extent to which customary law should be recognized and applied by the existing courts, the extent to which Aboriginal communities should be empowered to enforce their own laws, and 'any other related matter.'

Given the particularity of the. reference, the enormity of the task, and the interim nature of the work, it is perhaps somewhat unfair to be overly critical of the Discussion Paper. The following is meant to highlight some of the problems with the paper, and offer some constructive comments in the limited space available, from the point of view of someone whose principal experience has been in Papua New Guinea and Micronesia. Over-emphasis on criminal law While Aborigines have unquestionably been very harshly treated by the Australian criminal justice system,[1] law reform measures in the area of recognition of customary law should go beyond criminal law into the 'personal law' areas. Whereas most people would identify land rights as the single most important political and legal struggle facing Aborigines today, this question is not dealt with at all by the Commission, nor was it meant to be, given the terms of reference. More generally, many countries recognize that in such matters as validity of marriage, dissolution of marriage, adoption, child custody and maintenance, succession, dependency (e.g. for the purposes of awards under worker's compensation legislation) and title to property, the customs and usages of the individual's social group should be controlling. In some countries, such as Israel, there exists no general law in these areas and the individual must designate the religious/customary regime that will be applied to him or her in personal law matters. Since Aboriginal social organisation is so markedly different from that of the dominant culture in Australia, reforms should be effected which will enable Aborigines to operate under a personal law system if they so choose.

Static view of customary law

The Discussion Paper largely reflects the view of the late Professor Strehlow that customary law should be regarded as a collection of eternal, immutable rules, and that 'synthetic' or 'hybrid' traditional law may lead to 'a legal no man's land'.[2] Justice Kirby, Chairman of the Commission, has elsewhere documented the great esteem in which he held Strehlow, and the extent to which Strehlow's ideas about traditional law have influenced his own.[3] The Strehlovian view conflicts with the position, widely held by contemporary legal anthropologists, that customary law is dynamic - that it is comprised of those customs and usages recognized by the community at a given time as relevant in determining rights and obligations and settling disputes, and that the ability to adapt to changing circumstances is essential to its continued vitality, with nothing 'lost' in the process of change. Thus, a major argument against codification of customary law in African and Pacific states, despite the superficial attraction of such a means of facilitating ascertainment, recognition and enforcement of customary law, is that codification would result in 'freezing' custom at a particular point in time, robbing customary law of its flexibility and dynamism and ultimately lead to a gap between custom as codified and custom as evidenced by practice.

Similarly in Australia, the fact that customary law may no longer exist in most communities in a pure form dating back to time immemorial, and that Western civilization has had a substantial impact upon Aboriginal culture, traditions and lifestyle, should not be seen as supporting the proposition that there is no longer any customary law worthy of recognition. The necessary consequence of adopting Strehlow's view is to limit the benefits of reform to the 4-5% of Aborigines who have maintained traditional life-styles on reserves, whilst denying that the remainder have the right to legal recognition of their Aboriginality. Failure to refer to overseas experience The problems of recognition of customary law and the integration of customary and Western laws are not unique to Australia - indeed consideration of these questions in Australia has been unconscionably delayed. A large body of literature exists on integration efforts and experiences in Africa, Asia and the Pacific (and, to a lesser degree, North America), yet virtually no reference is made to overseas experience in the Discussion Paper. Members of the Commission did visit Papua New Guinea, for example, although scant reference is made to the situation there, or to law reform efforts such as the Native Customs (Recognition) Act, the establishment of the Village Courts and land mediation courts, the acceptance of traditional social groups as the basis for development corporations under the Business Groups Incorporation Act, the recognition of the personal law concept, the key role that customary law is accorded in the transitional provisions of the Constitution and the PNG Law Reform Commission's proposed Underlying Law Bill, the requirement that aspiring legal practitioners study customary law, etc.[4] Much may be learned from relative successes and failures of other legal systems which have grappled with the questions of integration of laws and legal pluralism, and the Commission should review the overseas experience carefully before it makes its final report.

Integration or separate but equal?

The overseas experience seems to indicate that where the strategy adopted is to recognize custom in specified arbas of the law through the agency of Western-style courts, little use is actually made of customary law in practice because of, inter alia, the practical difficulties in ascertaining custom on a case-by-case basis; the ambivalence or antipathy of Western-trained lawyers and judges towards customary law; the usual supremacy of case law and statute law in conflict situations; the strict rules of procedure and evidence in Western courts; etc.

If the Commission is serious about recognizing Aboriginal custom and jurisprudence, then the most effective way of achieving this would be to establish a semi-autonomous Aboriginal community court system applying customary law with an emphasis on mediation and conciliation, with jurisdiction parallel (as a minimum) to Courts of Petty Sessions, and appellate review available only for allegations of denial of natural justice.[5] It should be noted that such courts need not be restricted to tribal areas - the successful operation of village courts in ethnically heterogeneous urban areas of PNG bears witness to this. There are ample precedents for such legal pluralism as well, in the Native American Tribal Courts of the USA, the sharia courts of Malaysia and other Islamic countries, etc. Reforms aimed at recognition of Aboriginal customary law in the common law courts should still be pursued with reference to those matters, e.g. serious criminal offences, which might fall outside the jurisdiction of Aboriginal courts.

---

[1] See E. Eggleston, Fear, Favour or Affection (1976), and P. Coe, 'Aboriginals and the Criminal Law' (Institute of Criminology paper, July 1980).

[2] See, e.g. para. 84 of the Discussion Paper.

[3] See Kirby, J , 'T.G.H. Strehlow and Aboriginal Customary Laws' [1980] AdelLawRw 10; 7 Adelaide L. Rev. 172-199 (1980).

[4] These matters are discussed at length in Weisbrot, Paliwala and Sawyerr (eds.), Law and Social Change in Papua New Guinea (Butterworths, in press).

[5] See paras, 121-127 of the Discussion Paper.