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Aboriginal Law Bulletin (ALB)
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Holding, Clyde --- "Minister's Response on Customary Law" [1986] AboriginalLawB 58; (1986) 1(23) Aboriginal Law Bulletin 5


Minister’s Response on Customary Law

Letter from Mr Clyde Holding

The Aboriginal Law Centre recently contacted the Minister for Aboriginal Affairs, the opposition spokesman on spokesman on such matters, Mr David Connolly, the Attorney-General Mr Lionel Bowen and the opposition Shadow Minister Mr John Spender for their views on the Australian Law Reform Commission's Report on the Recognition of Aboriginal Customary Laws.

The Attorney-General-indicated that while his department was obviously affected it was letting the Department of Aboriginal Affairs lead, he states in his letter (dated 21 October 1986)' the carriage of the implementation of the Report is with the Minister for Aboriginal Affairs'. The Attorney-General also adds that inter-department committees would ensure co-ordination. The opposition's Shadow Attorney-General had no comment to make at this stage. It would also seem the opposition's Shadow Minister for Aboriginal Affairs has no comment to make after not replying to our request to do so.

The onus is therefore on the Department of Aboriginal Affairs to foster any follow-ups to the Report. With that, the following comments by the Minister for Aboriginal Affairs, Mr Clyde Holding, have been extracted from a letter sent to the Aboriginal Law Centre, dated 14 November 1986:

Dear Mr Chisholm,

Thank you for your letter of 24 September in which you invited me to provide some comments for the Aboriginal Law Bulletin about the Report of the Law Reform Commission on the Recognition of Aboriginal Customary Laws. I regret that there was insufficient time for me to be able to meet your deadline for your October issue. but you may like to draw on the following paragraphs on a suitable occasion.

The Law Reform Commission's Report is the result of nearly a decade's intensive and painstaking research and analysis. That it consumed so much time and energy should occasion no surprise, for the issues that have had to be addressed are extraordinarily complex, and quite different in scope and character from any other task the Commission has been called upon to perform. For, by its very nature, the Commission's reference has required it to consider matters which lie at the very basis of our society and its legal system. Thus, if equality of all before the law is a fundamental principle of our legal system - and surely that should be beyond argument - is it a concomitant that all citizens, without exception, must conform to a single legal mould? If so, is that fair to those people who were here long before our British-based laws were imported, and who had developed their own highly structured methods for regulating their affairs? On the other hand, how can two different laws be applied to deal with the same issue?

The Report which the Commission has produced achieves, in my view, a sensible and sensitive balance. A key conclusion is that special measures for the recognition of Aboriginal customary laws will not be racially discriminatory and will not involve a denial of equality before the law or equal protection as those concepts are understood in comparable jurisdictions, if those measures

I believe an enlightened and compassionate society should find no difficulty with such (principles.

The scope of the Report's findings and proposals is formidable, covering such broad and complex areas of law as marriage, children and family property; the criminal law and sentencing; evidence and procedure; local justice mechanisms for Aboriginal communities; and hunting, fishing and gathering rights. These are all matters of the utmost importance to Aboriginal Australians who, as the statistics bear out only too well, suffer a disproportionate share of the law's retributions. Without wishing to simplify what is clearly a most complex issue, I think it is clear that, in many respects, our law and Aboriginal society have demonstrated that they are ill-fitted to each other.

I have accordingly instructed my Department to give the Report most serious study and to develop proposals for appropriate action. This is a task of considerable magnitude. and it may be some time before we can point to results. Within the Commonwealth Government, the interests of many other departments and authorities are. involved; and there will be need for consultation with them. The Attorney-General's Department will of course have -a key role to play.

In large measure, however, the issues raised in the Report are of State and Territory, not Commonwealth law; or, at least, there are clear State and Territory interests. There will therefore be extensive processes of consultation with State and Territory Governments.

The Aboriginal people themselves will rightly expect that their views will be heard and respected. So too will the legal profession. I would warmly welcome comment and suggestions that will assist in the massive task of evaluating, and acting on, the Commission's proposals.

I congratulate the Commission on completing a most important and difficult assignment and on the very high quality of its Report. I have no doubt that time will show that its efforts have been well spent. and that important reforms will be made that will be to the benefit, not only of Aboriginal Australians. but our society as a whole.

Yours sincerely,

Clyde Holding


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