Crawford, James --- "The ALRC's Customary Law Reference: A Progress Report" [1982] AboriginalLawB 25; (1982) 1(4) Aboriginal Law Bulletin 7

• The Alrc’s Customary Law Reference: A Progress Report
• Personnel
• Research Papers
• Further Discussion Paper(s)
• Further Consultation
• A Final Report?

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The ALRC’s Customary Law Reference:

A Progress Report

by James Crawford

The Australian Law Reform Commission received its Reference to inquire into and report upon the recognition of Aboriginal Customary Law as long ago as 1977. Since then much work has been done collecting a wide range of material, submissions, literature and so on. The Commission's Discussion Paper, Aboriginal Customary Law - Recognition? was produced in 1980, and formed the basis for extensive Public Hearings throughout Australia.

Commissioner Bruce Debella, who was in charge of the Reference during this period, returned to legal practice in Adelaide in mid-1981. His replacement, Dr James Crawford, Reader in Law in the University of Adelaide, did not begin work on the reference until January 1982. Since then the Reference has entered a new phase. Detailed proposals are being forumulated in particular areas for consideration by the Commission, its consultants, and all who are interested in the Reference. At the same time the Commission will continue the process of consultation with Aboriginal people, communities and organisations, which is essential if the Reference is to be a success.

Personnel

Professor Alice Tay of Sydney University has joined the Customary 'Law Division of the Commission.

Peter Hennessy, Senior Law Reform Officer, has been working on the Reference since 1980. Attempts are also being made to recruit an Aboriginal researcher to work within the Commission on the reference. This is in part a response to the call made at the `Human Rights for Aboriginal People in the 1980s' Conference held at the University of NSW last October, for an Aboriginal researcher to strengthen the team on this Reference (see (1981) 2 Aboriginal Law Bulletin 9).

Research Papers

The Research Staff has undertaken a program of producing fifteen Research Papers dealing in detail with specific policy areas of the Reference. Four of these are now available:

R.P.1: Promised Marriage in Aboriginal Society
R.P.2: The Recognition of Aboriginal Customary and Tribal Marriage: General Principles
R.P.3: The Recognition of Aboriginal Tribal Marriage: Areas for Functional Recognition
R.P.4: Aboriginal Customary Law: Child Custody, Fostering and Adoption

Further papers, on issues such as property distribution, criminal law, sentencing and disposition, evidence, the proof of customary law and community justice mechanisms, will be available from time to time. (A list of the proposed Research Papers is contained in each of the completed Papers).

Further Discussion Paper(s)

The October Conference called also for a further Discussion Paper on this Reference, to explain the Commission's tentative proposals in more detail. No firm decision has yet been taken, but it is likely that the Commission will produce from one to three short (15-20 pages) Discussion Papers summarising the main areas of the Reference. These would be based on the more detailed Research Papers, but would have a much wider circulation.

Further Consultation

Extensive Public Hearings were held throughout Australia in 1981. Further Public Hearings, of a more informal nature, are being arranged for Alice Springs and the surrounding area for later this year, to supplement the one-day hearings in 1981. As in the past, arrangements will be made for separate women's meetings. It is hoped to increase the number and range of consultants, and a series of regional consultants' meetings is planned. The first of these was held in Darwin in May; the next will be in Adelaide in September. In conjunction with these the Commission will try to meet as many interested persons and organisations as possible. Further proposals for consultation (including the use of existing resource-persons in communities) are being considered. The Commission would welcome suggestions in this regard.

A Final Report?

It is anticipated that the Commission will not be reporting on this Reference until mid-1983. The process of consultation, outlined above, will continue until the Report is completed.

Copies of the Discussion Paper and Research Papers, etc. may be obtained from the Commission (GPO Box 3708, Sydney, 2001). The Commission would welcome comments, criticisms and suggestions, on the Discussion and Research Papers in particular and the Reference in general.