Hand, Gerry --- "The Recognition of Customary Laws - Minister's Response" [1989] AboriginalLawB 54; (1989) 1(40) Aboriginal Law Bulletin 15

• The Recognition Of Customary Laws

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The Recognition of Customary Laws

Gerry Hand

Federal Minister for Aboriginal Affairs

In May this year the director of the Aboriginal Law Centre, Professor Garth Nettheim, wrote to Gerry Hand (Federal Minister for Aboriginal Affairs) to inquire about the progress in consideration of the recommendations of the Australian Law Reform Commission in its Report No 31, The Recognition of Aboriginal Customary Laws (1986). Professor Nettheim asked:

"Is consideration proceeding in your department? Is the Attorney-General's Department involved? Are discussions proceeding with state and territory governments? When is it expected that the Government will announce what it proposes to do in response to the recommendations?"

The following reply was received in July:

The implementation of the report on the Recognition of Aboriginal Customary Laws has been given serious study by the Department of Aboriginal Affairs and represents a major policy priority.

There has been gradual but steady progress towards implementing recommendations. The Child Placement Principle has been incorporated in the Adoption Act 1988 of South Australia and, as I understand it, trial diversion schemes are under active consideration by all state and territory governments.

At the same time, implementation has not been easy. One difficulty is that the major recommendations concerning trial and penal diversion schemes, local justice mechanisms, police/Aboriginal liaison, and hunting, gathering and fishing rights are not specific. In consulting with state government officials, authorities and other commonwealth departments, the Department of Aboriginal Affairs has been presented with numerous contradictory proposals for implementation, each of which might achieve particular objectives but none of which provides an overall solution.

The issues raised in the report involve, in a large measure, state and territory law rather than Commonwealth law and most recommendations, once implemented, would be administered by state and territory governments. Most notable here are the recommendations concerning child custody, criminal law, criminal trial procedure and local justice mechanisms.

It is, of course, appropriate that any legislation to give effect to those recommendations be made by state and territory legislatures.

The legislative response to a recommendation may vary in each of the states and the Northern Territory, in order to suit the differing needs of the Aboriginal people in each jurisdiction.

In 1986-7 and 1987-8, the report was considered by the Australian Aboriginal Affairs Council (AAAC), a body comprising State and Northern Territory Ministers responsible for Aboriginal Affairs. At the same time, the Department of Aboriginal Affairs co-ordinated the exchange of preliminary officer level views of Commonwealth departments and state and territory governments. This culminated in a meeting on the report in May 1988 between officers representing the AAAC and officers representing the Standing Committee of Attorneys-General (SCAG).

In 1988-9, the Department has continued its work of co-ordinating policy formulation. In October 1988, in conjunction with the Attorney-General's Department, it arranged a meeting between officers representing the AAAC and officers representing SCAG to discuss the recommendation concerning trial diversion schemes.

On 4 December 1988, the AAAC resolved that state and territory Aboriginal Affairs Ministers decide whether they agree in principle to the recommendations concerning:

• traditional distribution of an estate on death;
• the Aboriginal Child Placement Principle;
• trial diversion schemes;
• prosecution guidelines for offences in traditional communities;
• a legislative basis for certain sentencing practices;
• the admission into evidence of customary law for sentencing matters;
• the abolition of powers to order a custodial sentence by a Justice of the Peace;
• the abolition of default imprisonment for non-penal substantive offences;
• alternative sentencing options;
• legislation for specified police interrogation rules;
• local justice mechanisms;
• increased police co-operation with communities; and
• hunting, gathering and fishing rights;

and if so, decide upon the form of implementation which would be appropriate to the needs of Aboriginal people in their state or the Northern Territory and advise their respective Attorney-Generals accordingly.

It is considered that these recommendations are the major ones of the report. It remains for state and territory Ministers now to decide how to deal with those matters.