Rees, Neil --- "What Do We Expect? Aboriginal Customary Law: A General Regime for Recognition" [1983] AboriginalLawB 23; (1983) 1(8) Aboriginal Law Bulletin 10

• What Do We Expect? Aboriginal Customary Law: A General Regime For Recognition

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What Do We Expect?

Aboriginal Customary Law:
A General Regime for Recognition

by Neil Rees

In Research Paper No. 8 Dr James Crawford, the Commissioner in charge of the Aboriginal customary law reference, gives us a taste of the final recommendations which we may expect from the Australian Law Reform Commission. The tentative recommendations are conservative. The paper reads as an impressive law review article; it is well argued, well documented and it is not likely to cause too many ripples in the general community. Moreover it would be surprising if the general tenor of the paper and its recommendations receive warm support from a great majority of the Australian Aboriginal community.

Dr Crawford does not have an enviable task. This Research Paper is devoted to a general examination of whether recognition of Aboriginal customary law is desirable. It is an intricate question - what does recognition mean and for whom and for what reasons may recognition be desirable? As Dr Crawford takes great pains to point out "recognition" of Aboriginal customary law may occur in at least four very different guises. These are –

1. By incorporating customary law as part of the general law of the land e.g. legislation which prohibits access to sacred sites.

2. By excluding the general law from certain areas thereby allowing customary law to prevail e.g. legislation which declares that all federal and state or territory laws do not apply to persons within a particular geographical area.

3. By translating certain aspects of customary law into concepts or relationships recognised by the general legal system e.g. legislation which declares that parties to traditional Aboriginal marriages have the same rights and duties as persons married in accordance with the Marriage Act.

4. By adjusting or accommodating the operations of the general law to take account of customary law e.g. a judge taking customary law into account when sentencing or a prosecutor declining to proceed against an Aboriginal accused who has been dealt with in accordance with customary law.

Having identified these various types of "recognition", Dr Crawford considers arguments for and against the recognition of Aboriginal customary law. We are told that it is argued that customary law should be recognised because it is a continuing aspect of traditional culture and belief, that it may in some way compensate for wrongs perpetrated in the past, that there is intrinsic merit in Aboriginal customary law and that recognition would be consistent with federal policy of Aboriginal self-determination. The arguments which are advanced against recognition include the secretiveness of certain aspects of customary law, lack of knowledge of the consequences of recognition, a possible "white take-over" of customary law, potential conflict between customary law and basic human rights, favouritism to Aborigines (the arguments dealing with equality and discrimination are discussed at length in Research Paper No. 9) and Professor Strehlow's view that it is too late to recognise Aboriginal customary law because it has ceased to exist. Strehlow's arguments, in particular, are handled cautiously and we are left with the feeling that he is successfully distinguished rather than debunked. Yet, are not the changes in the Anglo-Australian common law over the past few hundred years the lawyer's answer to Strehlow's plea for purity and stagnation in customary law?

After weighing up the pros and cons Dr Crawford asserts that there is "a case for appropriate forms of recognition of Aboriginal customary law by the general law". In arriving at this conclusion the ALRC appears to have skirted rather than directly confronted the major issues. As Professor Blainey put it in his submission to the Commission, "Aboriginals have a vital place in the world ... their traditions and many of their values differ from those of European society and ... by reviving a version of Aboriginal law even in a limited way we give them respect, some sense of identity and independence and a greater chance of self-fulfillment". Surely the very existence of Aboriginal customary law, the allegiance owed to it by members of the Aboriginal community and the desire of the Aboriginal community to resist complete assimilation are the major reasons why customary law should be recognised, especially when to do so does not pose any threat to the rest of Australian society. And recognised by whom? Customary law is recognised by many Aborigines. We should not overlook in the midst of intellectual debate that the whole exercise of whether we should recognise customary law is in reality nothing more than the dominant European culture saying to one which it has conquered - does it fit within our notions (not yours) of what is just and right to recognise your law and if so, how much of your law should we be prepared to tolerate both for your own good and for ours? It is an exercise in paternalism and condescension. Without re-writing history we can't change the need or the motives for the exercise but it makes the task more difficult if we obscure them.

If these ground rules had been more clearly stated the recommendations contained in the Research Paper may be a little more appealing. The paper suffers from the fact that it does not boldly confront political reality but reads as a search through a morass of information and conflicting opinion for an elusive, yet attainable, legal principle. This is not the place for narrow legal reasoning. Of course much of a Law Reform Commission's work calls for such an approach but the question of "whether it would be desirable to apply either in whole or in part Aboriginal customary law to Aborigines" lies clearly in political rather than legal waters.

What can we expect the Commission to recommend? Dr Crawford writes that "no form of categorical recognition of Aboriginal customary law, or categorical exclusion of the general law, would be an appropriate response to the questions raised by the Reference". To elaborate, "any recognition of Aboriginal customary law must occur against the background and within the framework of the general law" and "particular forms of recognition must be justified on their merits". We are given some examples. It may be that traditional marriages are accorded Marriage Act status, sacred sites are protected, the rules for distribution of property on intestacy will be different for some Aborigines, an Australian version of the U.S. Indian Child Welfare Act will come into being and that there will be a customary law defence to certain criminal offences. Apart from the establishment of community justice mechanisms it is not proposed to establish new machinery to deal with those areas of customary law which "justify" recognition. It is a matter for concern. Australian courts have consistently demonstrated an incapacity to cope with that which is new and different. Hence our legislators' fondness for the creation of specialist tribunals.

Perhaps many of us would feel a little more comfortable if a specialist body (say comprised of a judge, an anthropologist and members of the Aboriginal community) rather than a country magistrate was charged with the function of determining what accommodation should take place, between the general law and customary law, in a particular criminal case.

To reiterate, Dr Crawford's task has not been and will not continue to be easy. By rejecting that form of recognition which would allow customary law to operate exclusively in a particular area the Commission is left with a grafting exercise. To undertake such grafting requires a detailed knowledge of the practical workings of both the general law and Aboriginal customary law. Unfortunately there are few people who have a foot firmly planted in each camp. As Dr Crawford realistically points out, the grafting must inevitably proceed by trial and error.

ALRC Research Paper No. 8 was written at a time when the Fraser Government was in power and one cannot help bill contemplate whether it was composed and intentionally depoliticised with one eye upon the political "master". With the election of a federal Labor Government the rules of the game have changed and we may find that the ALRC's final report is a little more adventurous and politically realistic than this Research Paper.