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Fisher, Mary; Hennessy, Peter --- "Cu'stomar/y" [1986] AboriginalLawB 44; (1986) 1(21) Aboriginal Law Bulletin 5


Cu’stomar/y

by Mary Fisher and Peter Hennessy

The Australian Law Reform Commission's Report on The Recognition of Aboriginal Customary Laws was tabled in Federal Parliament on 12 June 1986. It was the largest and longest enquiry ever conducted by the Commission and is also the most extensive report into may aspects of the law which affects Aboriginal people yet produced.

The Commission's recommendations cover such areas as marriage, custody, family property, the criminal law, sentencing, problems of evidence and procedure, local Justice mechanisms for Aboriginal communities, and the recognition of traditional hunting, fishing and gathering rights.

With very limited exceptions, Aboriginal customary laws have never been recognised by Australian law. The Commission's proposals for recognition reflect the continuing reality of customary laws as a significant influence in the lives of many Aborigines. The recommendations support the right of Aborigines to retain their own lifestyle. culture and identity should they wish. They reflect the fact that non-recognition can produce injustice and can undermine traditional authority structures. Recognition acknowledges the effectiveness in many communities of customary laws in maintaining law and order.

The Commission's proposals are framed from the point of the view of the general legal system. With the aim of achieving justice in cases where Aboriginal customary laws and traditions are relevant. These proposals are made after extensive discussions with Aboriginal men and women and Aboriginal organisations around Australia. But the Commission does not claim to speak on behalf of Aboriginal people and Its advice to the Federal Government and Parliament in no way commits Aboriginal people.

The Commission indicated that the precise form of the Commission's proposals in each instance was chosen to ensure that where possible Aboriginal control over their laws was maintained and that secret matters were protected. The Commission has taken account of the need to accommodate the variety of Aboriginal experience and lifestyle. Care has been taken to ensure that the Commission's proposals were not discriminatory. and to ensure that they accord with the fundamental values of equality and other human rights.

The Commission's proposals include:

legitimacy of children;
adoption, fostering and child welfare laws;
distribution of property on death including intestacy and family provision;
accident compensation including workers compensation, compensation on death, criminal injuries compensation and repatriation benefits;
statutory superannuation schemes and private superannuation schemes established in the future;
for the purposes of the Social Security Act 1947 (Cth);
spousal compellability and marital communications in the law of evidence;
unlawful carnal knowledge charges provided both consent and traditional marriage are proved;
the spouse rebate under the Income Tax Assessment Act 1936 (Cth) and related legislation.

variation of maintenance and property rights during a relationship or on divorce;
bigamy;
rape in marriage;
powers under the Family Law Act 1975 (Cth) to grant injunctions with respect to domestic violence;
the Family Court's jurisdiction with respect to principal and ancillary relief.

It is recommended that these proposals, with two exceptions (those relating to local justice mechanisms and to traditional hunting and fishing principles) be implemented by Commonwealth legislation which does not exclude the concurrent operation of State or Territory legislation which complies with the recommendations. The Commission's report also discusses in detail other factors impinging on the recognition of Aboriginal customary laws including common law recognition. the settled/conquered colony debate, questions of discrimination, equality and pluralism, ways in which basic human rights maybe ensured and questions of Commonwealth constitutional power.

The Report is based on detailed research Into Australian law and its operation and into the law and practice of many overseas countries Including Canada, United States. Papua New Guinea. New Zealand, other Pacific and African countries.

The Commissioners Report maybe obtained from the Australian Government Publishing Service. It consists of both a Summary Report ($6.95) and a Full Report, consisting of two volumes including. proposed draft legislation ($49.95).


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