Walton, Alastair --- "James Crawford Interview" [1985] AboriginalLawB 11; (1985) 1(12) Aboriginal Law Bulletin 16

• James Crawford Interview

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James Crawford Interview

by Alastair Walton

The following interview took place in Sydney between Professor James Crawford, the Commissioner for the Australian Law Reform Commission's Reference on Aboriginal Customary Law, and Alastair Walton of the A.L.B.

It is presented as an insight to the Reference's forthcoming final report which is due in the mid-year. In addition, the A.L.B. proposes to run interviews as profiles of people who have an active role in the law that affects Aborigines.

Crawford: The Law Reform Commission got the Aboriginal Customary Law Reference in 1977.1 wasn't the first Commissioner in charge of that Reference, there were twoo before me - the Chairman of the Commission, Mr. Justice Kirby, and then Mr. Bruce Debelle. I took over the Reference when it needed a lot of detailed work to be done on particular aspects and a report to be written. So in the last three years I havee been doing both of those things and have produced a series of papers which readers of the Aboriginal Law Bulletin would certainly know about. In the last yearorso we have been working on the Final Report, on the basis of the discussion papers and research papers that were produced.

One particular area in which a lot of work hass been done in the last year is the area of traditional hunting, fishing and foraging rights. Research papers (which came out in May of last year) have dealt with those issues for the first time properly in Australia, and there has been a lot of work since then talking to State and Federal authorities with responsibilities in those areas. We also carried out our last field report, or last extensive set of discussions and consultations with people in North Queensland, with a point of looking at Aboriginal Courts and Aboriginal Police. But essentially the process in the last year hass been to put together a reportwhich, it is hoped, will be completed later this year for submission to Federal parliament and then whatever else happens.

Can you say what kind of major recommendations there will be?

The recommendations, broadly speaking, will not come as any surprise to those who have been following the Reference. The strategy of this Reference hass been not to produce surprises, but to try and consult people on the various issues. The fine print may well be new in some respectss because obviously when you prepare a proposal you reach a certain level of refinement on the areas of which work has been done and the broad approach to them is I think very well known. In this sort of Reference that is essential, because there is nothing we an do as isolated individuals - all we an do is attempt to still the sort of collective knowledge, information and wisdom in this area and present it.

The areas we have been dealing with are recognition of Aboriginal marriages, recognition of childcare responsibilities, both in terms of custodial and similar rights and also in terms of payments on account of children, and the distribution of property amongst the extended family situation where the property distribution is called for. As well, the question of the recognition of Aboriginal customary laws in the application of the general criminal law, bothh by way of defence and sentencing. That is, taking Aboriginal Customary Law intoaccount when sentencing and also in procedural stages of the criminal justice system - for example, in granting bail, decisions on whether to prosecute, and police interrogation. On questions of local justice mechanisms and alternatives to the Criminal justice system, the recommendations there, I am afraid, are likely to be recommendations for more work to be done and experiments to be carried out. I think this is an area in which no-one has any single plan or proposal for action.

Recommendations in relation to hunting, fishing and foraging rights which we have already mentioned, call essentially for recognition of a certain priority which has to be given to hunting, fishing and foraging rights as against other claims to the use of resources.

There will also be a vast amount of material in the report which analyses and describes the Australian experience so far - something which has never been done anywhere, so it will be a compendium really of the way in which these issues have been tackled as well as a series of suggstions for reform. It is really a launchingpadfortherestofthereport with an extensive discussion of the basic arguments about discrimination in relation to legislation about Aborigines, the notion that there should be a recognition of a different law rather than a single law that applies to everyone, and the question of human rights as it bears on recognition of customary law. There is also extensive discussion with overseas administration.

Do you see then that Customary Law will be integrated into the Australian Legal System?

No, I don't think Customary Law can be integrated into the Australian legal system. Customary Law is about Aboriginal people, their beliefs, practices and understandings, which they would quite rightly claim they own as a form of intellectual property. Aborigines themselves are not seeking the integration of Aboriginal customary law into legal systems which presumably would require some form of writing down or codification. What they want is for their customary laws too be taken into account where that is relevant - something which judges now are trying to do where they are able to do it. One of our aims hass been to try and extend that process. So they are looking for a looking for a situation which is only a reflection of what happens how, both in terms of their understanding of things and of the way the courts operate.

Your recommendation then is that there are some examples of justices in the Northern Territory and South Australia accepting customary law as mitigating circumstances?

Well, it goes welll beyond the question of mitigating circumstances in punishment, though that's one aspect of it. And it goes well beyond the practice of isolated justices and magistrates, in fact the Supreme Courts have probably. been more consistent in taking it (Customary Law) into account than have magistrates. There havebeen some magistrates who havee been very concerned to do it, there have.been others who have.been opposed to doing it. But it extends to a wider range of issues in terms of recognition of family responsibilities and things like that. We will certainly be recommending that be done in some context, if it can only be done by legislation. That, of course, raises the question whether the legislation shouldbe Federal or State-and that's a matter on which obviously the report will have something to say. In the end, though, that's a politicial decision.

Obviously there are some areas where Federal and State interests are in conflict, as in some aspects of criminal law and also child custody and welfare. For example, the administration of juveniles, is a great problem and there is a lot of publicity and discussion on the problem of juvenile delinquency and petrol sniffing.

That raises, of course, a question about Aboriginal affairs which is much broader than the Reference on the recognition of Aboriginal customary laws, even though we have taken that reference as a fairly broad one. The real question is whether the Commonwealth is going to use its special legislative powers over Aboriginal people, now contained in s.51 XXVI of the Constitution, as a basis for involvement in the range of questions which, if it wasn't for the fact that the persons involved were Aborigines wouldn't. be within Commonwealth legislative power. It is not a case of state constitutional rights being infringed because the states have gjot no constitutional right not to have Commonwealth legislation passed under s.51 XXXVI. The question is whether the Commonwealth is going to exercise that power for itself or whether it is going to stand in thee background as it has done up till now. Presently it has used some authority and had some things to say in Aboriginal affairs and of course used its spending powers,, but it has not actually been involved in a significiant legislative way. That is a question of general government policy - we will be saying something about it in the context of this reference,-but obviously it's not a matter for the Law Reform Commission to determine in the general sense.

Will you be recommending that the Commonwealth use its powers?

In certain areas, yes. In some areas it doesn't seem that it is possible and some of these problems can't be resolved in any event. They can't even be addressedby legislation because they really need administrative measures.

The recognition of marriage for example - it ann be argued that it is an area in which the Commonwealth is significantly involved and there is no special problem about Commonwealth legislation in that field other than the general problems of recognition of customary laws, given the variations throughout Australia. But in child welfare it's a rather different story,, because up till now the State child welfare authorities have been.bery concerned at the idea that there might be Federal involvement even though there may be a legislative power.

Land rights is another area, not one we're dealing with specifically in this reference, where the states would say that they have very special concerns on which they would very strongly resist Commonwealth legislation. I think it's quite likely that whateverdecision is made generally by the Commonwealth in respect of that question will flow on into this reference. In other words I think the Commonwealth is likely to make a decision in respect of land rights, if it hasn't made it already, and that decision is then likely to.be used as aa basis for making decisions in other fields. But in general terms our view would-be that you do have to look at the particular issue. There may be a reason for Commonwealth involvment at a legislative level in one area which doesn't exist in another - land rights, of course, has got the very special problem of the states having vested rights in terms of Crown land.The Commonwealth can only acquire that land for itself or for Aborigines, on the payment of just terms. So there are enormous political problems in the way of the Commonwealth acquiring land in the States, as Aboriginal land, without the States' consent. Those problems don't exist in quite the same way for child welfare, but whether that makes a difference in terms of the Commonwealth decision to legislate is another question.

When addressing Aboriginal issues, how does the Commisison take into account the categorisation of Aborigines, such as in the 'urban Aborigine' and the Aborigine who is seen to live outside the metropolis area - where life may have closer contact with the traditional ways?

Well, first of all I don't think that you can categorise people very easily into urban Aborigines or rural Aborigines - obviously there are Aborigines who have lived and whose parents and grandparents have lived in large. cities and there are others who have lived in remote areas and there are many in-between, but of course there is quite a lot of movement, not necessarily in the one direction. I mean the out-station movement is a movement away from urban settlements, even middle-sized urban settlements. So there is that problem. We certainly don't propose a definition of traditional Aborigine or anything like that, I don't think that would-be possible. There is another complexity, in that the extent to which particular Aboriginal people or groups retain traditional practices varies on the practice and the context. Our general impression would-be that there is a fairly considerably higher level of retention, this is a generalisation, in perhaps areas relating to family life or religious life than there wouldbe in other areas such as economic management. However, there are still traditions in relation to the economy of hunting, and fishing, and things like that, so even that generalisation isn't necessarily true. All we can do, looking at it from the perspective of law reform, is to recognise practices that exist in the areas that have come of our attention. That is not a once and for all process, it may be that other areas will develop and those now important will cease tithe as important. So as I say, it is a case of responding to what is there and what is there is not necessarily to be defined by categories such as urban or rural.

There are reports of how the breakdown of traditional life and authority has contributed to juvenile delinquincy, and other social problems. Do you see customary law and its recognition fostering a return to that authority and that tradition?

The question of the breakdown of authority is a very difficult question - it's not one which we've been directly asked to examine. Plainly there are problems. There are conflicts over authority, influence, power -and resources within different Aboriginal groups and sometimes those conflicts are divided on youth versus age lines. Although they're not always divided in that way and even when they are, there maybe other issues involved as well. That doesn't necessarily mean that. because younger people within a group are rejecting the authority of the elders, to use that phrase, they are necessarily living in less traditional or non-traditional ways. You can get a variety of conflicts, some of which are not particularly associated with traditional issues. On the other hand, plainly some are. I think the general approach we hae adopted is that it is not the function of the Law Reform Commission to intervene in those authority snuggles in any direct way. But certainly the way in which customary law is recognised doesn't reinforce and it certainly doesn't intrench the authority of the elders if you assume that the elders are the custodians of customary law as against younger people. It acknowledges customary law so far as they exist and so far as they are applicable to individuals. But an individual to whom they are not applicable will not have them foisted upon him. Someone who hasn't entered intoa traditional marriage will not as it were, .be treated as a second-class citizen compared with someone who has.

Several years ago there was some criticism of the Commission in the way it was accoutning for, or listening to, the womens' role in customary law. Do you think that since those criticisms were raised - the reference has overcome what might have been a problem?

That is really a matter for other people to judge. I think certainly there has been an improvement and the Commision has been much more aware of the need for care in this area. Great care hass been taken in subsequent consultatioq's with Aboriginal people, especially in remoter areas, to conduct separate meetings for women and men where there was a demand for them and usually there was. The Commission would also listen to what women have to say in a variety of other ways. So I certainly think we have been much more conscious of the need. But it is not our business to judge ourselves.

I remember in discussion paper (No. 17) an urgent recommendation for the provision of alternative care institutions in remote areas so people wouldn't have to travel from outback South Australia to Adelaide to receivesentence or to go on to further courts. Was there any action taken there?

What was said in discussion paper No. 17 was in the context of a preliminary discussion paper for which I was not personally responsible. The work of the Commission since then has, in some respects, gone along different lines. Nonetheless, we have certainly made comments about the need to ensure that people are not taken out of their own environemtn and taken off, what are sometimes very strange and remote places, in order to be processed by the criminal justice system, unless it is absolutely essential. So there have been reforms, for example, in extending the jurisdiction of Magistrates Courts in remote areas and in having district court judges on circuit. But there are still difficulties in that field. There has alsoo been a lot of discussion recently on setting up institutions in remote areas. For example, the proposal for the local gaol on Groote Eylandt which goes beyond the present police lock-up there. The proposal, made by someone from the Institute of Criminology, was that there be a full-scale gaol for long-term offenders on Groote Eylandt. Our view on that, which is likely to be expressed to some extent in the report, is that its undesirable to have local facilities on hat sort of scale. One of the problems with them is that they lead to an increased use of imprisonment as a method of trying to deal with offenders. Certainly long-term imprisonment is sometimes necessary and if there are no local facilities that's the way it goes. There are othr things that have too be done, and I don't think that's one of them.

Is the Commission in recognising that Aborigines do have a legal system so to speak, in customary law, thereby declaring Australia was not res nulluis in 1788?

The Commission's function is not to get involved in historical examinations. We are concerned with Aboriginal customary law as they are now not as they were in 1788. There is absolutely no doubt whatsoever that many groups of Aborigines in Australia and in particular in remoter areas have got a living vivid system of customary laws and so far as one can tell, there are very considerable continuities going back as far as there are records. But beyond that, it's not really our function to speak. The implications of that statement for general debates about the acquisition of Australia and so on, again are not specifically questions on recognition of customary laws - they're wider political questions and again although there is some discussion of those questions, in the report, they're not matters on which the Commission will make a recommendation.

What do you say to people who believe References such as this and land rights are 'pampering' the Aborigines in an unfair or 'discriminating' way?

The word 'pampering', of course,, begs the question and so indeed does the word 'discrimination'. There are people in Australia, and there might quite a lot of them, who believe that any different treatment of Aboriginal people compared with non-Aboriginal people is inherently wrong, even if there may be reasons for the different treatment. Certainly the Commission is asked to look at a particular phenomenon - Aboriginal Customary Laws - which in terms of there being groups of people still living with whatever changes and variations in recognisably traditional ways is unlike any other situation in Australia. The point is that we are not dealing with a situation in which the only differencee between two people is the fact that one happens too be an Aborigine. We are dealing with a situation in which a person did something in response to a deeply felt system of customary rules orr behaviour or conduct. Our view is that it is not discrimination to respond to those sorts of particular problems any more than it's discrimination to respond to the fact that the level of trachoma amongst Aboriginal people is so much higher than it is amongst the rest of the population that it calls for special programmes. It is not discrimination to treat trachoma when you find it and the fact that it happens to be found in people living in certain lifestyles is a fact. It is equally a fact that there are people with traditional ways of life to whom some response shouldd be made. The notion, which some people have, that treating people differentlyy because there are differencess between them is discrimination-. it's the sort of notion that implies that everyone has to be the same and live in a small block of land in a suburb and have no differencess between them. That's a concept of Australia that we should have got rid of in the 1950's, but there happens to be a lot of people left over from that period.

I would like to refer back to a note earlier, about the Commission making recommendations for further experiments or trials, in relation to independent justice mechanisms. What sort of experiments or forms of further investigation do you believe will take place? What sort of areas or what sort of set-up mechanisms will you be wanting to look at further?

First of all it will not be the Commission, or it would not necessarily be the Commisison, that wouldd be engaged in any further work in this area. The Commission will discharge its task with the publication of the Report. It is then a matter for the Commonwealth or the States if the Commonwealth decides that these questions are principally matters for the states to work out. The fact is there have been demands from a number of parts of Australia, or at least there have been suggestions, that alternative methods of dealing with offenders would be -better than the present system - which certainly so far as it deals with magistrate courts hass been a mechanical and unsatisfactory sort of system.

On the other hand, as we have discovered, the alternatives that havee been tried elsewhere in places like New Zealand, Papua New Guinea and North America, have by no means alwaysbeen satisfactory. The setting up of alternative systems of courts with their own sets of formal powers has generallyy been very unsatisfactory. So it is an area in which there are no clear answers. Thee best way in which these matters an be resolved is through local initiative for people saying, look we are prepared to 'try' and process people in different ways. There havee been attempts of that already in Australia. We think tht should be encouraged and we will be making suggestions as to ways in which it might-be encouraged - not necessarilyy by legislation or not mainly by legislation,, but perhaps in other ways.