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Blagg, Harry; Morgan, Neil --- "Human Rights Special - Aboriginal Law in Western Australia" [2004] IndigLawB 74; (2004) 6(7) Indigenous Law Bulletin 16


Aboriginal Law in Western Australia

by Harry Blagg and Neil Morgan

Background: Victimisation and Mass Imprisonment

The Law Reform Commission of Western Australia (‘WA LRC’) Aboriginal Customary Law Project has been running since 2002 and a formal Discussion Paper and a Final Report are anticipated in 2005. Much has changed since the 1984 Australian Law Reform Commission (‘ALRC’) brought down its groundbreaking report, and it is clear that customary law must now be discussed within a framework of meanings and sentiments more diversified and variegated than that of the early 1980s. The Royal Commission into Aboriginal Deaths in Custody increased awareness of Aboriginal criminal justice issues and left an indelible mark on debates and policies around Indigenous justice issues: the High Court’s landmark decision in Mabo and Others v Queensland[1] engendered a radical reconfiguration of ideas about the significance of land and culture within Australian law; and the inquiry into the ‘Stolen Generations’,[2] perhaps more than any other single initiative, poignantly revealed the deep anguish left in the wake of past projects of social engineering.

Regrettably, while our understanding of many issues has increased, the issues themselves remain stubbornly resistant to change. The WA LRC report has been conducted against a bleak background. On the one hand, reports have continued to point to entrenched problems of substance abuse, violence and sexual abuse in Aboriginal communities.[3] On the other, we see continuing – and increasing – Indigenous overrepresentation in the Western Australian (‘WA’) criminal justice system. Aboriginal people constitute around three per cent of the state’s population but almost 39 per cent of all prisoners (up from 32 per cent two years ago). Aboriginal women are 48 per cent of the female prison population and Aboriginal children constitute three quarters of the juvenile detention centre population.

The WA LRC’s community consultations confirmed that substance abuse, family violence and sexual abuse are not part of Aboriginal law and that, to Aboriginal people, mass imprisonment is part of the problem, not the solution. The research has also reaffirmed that Aboriginal people bear the brunt of punitive ‘law and order’ policies and have inadequate access to alternatives such as diversionary initiatives – a facet of systemic racism.

Structure, Process and Terms of Reference

A decision was made early on in the life of the project that the voices and stories of Aboriginal Western Australians should form the heart of the project. The Commission has, therefore, held consultations with urban, rural and remote Aboriginal communities across the State as well as focused stakeholder meetings and a number of consultations in metropolitan and regional prisons.[4] The consultation process has been overseen by an Aboriginal Research Reference Group and two highly respected Special Commissioners (Professor Mick Dodson and Ms Beth Woods, both Western Australians). The WA LRC has also commissioned a number of specialist background papers on issues as diverse as interpreter services, family law, criminal law, intellectual and cultural copyrights, human rights instrumentalities and law, benchmarking, women’s issues, justice programs and community justice mechanisms.[5]

These papers reflect the sheer breadth of the project’s terms of reference, which exclude only native title and the Aboriginal Heritage Act 1972 (WA). The reference stipulates that the research should inquire into:

In considering point 3, the Commission was requested to consider whether customary law should be recognised in Western Australia and, if so, what modifications and amendments should be made to court practices and procedures, the civil and criminal law, and other relevant provisions. The Commission was required to traverse relevant Commonwealth legislation and international obligations as well as state laws and to ‘have regard to’ matters as diverse as criminal law, civil law, the law of domestic relations, personal property law, inheritance law, evidence and procedure. It was also required to address issues surrounding Aboriginal notions of the sacred, cultural concerns and sensitivities around gender, and to recognise the centrality of Aboriginal peoples’ ‘views, aspirations and welfare’ in the research process. The terms of reference are extremely broad – dauntingly so. Yet they reflect the numerous points of intersection between Aboriginal and non-Aboriginal worlds and world-views.

Aboriginal Customary Law or Aboriginal Law?

During the consultations, a general preference has emerged for the term ‘Aboriginal law’ rather than ‘customary law’ or ‘traditional law’. The concern is that words such as ‘customary’ imply that Aboriginal law has a secondary status and that it is only relevant in more remote and ‘traditional’ areas. The consultations showed that Aboriginal law is of primary status in many parts of the State, and that its complex tapestry of obligations extends across all Aboriginal communities – remote, regional and urban.

The Enduring Relevance of Aboriginal Law

Aboriginal law is still strong in WA, particularly in remote regions where Aboriginal language, law and culture continue to dominate daily life, although they have increasingly to survive in close proximity to non-Aboriginal society. Aboriginal culture remains remarkably resilient; surviving forced removal, deracination and attempts at cultural genocide. Urban Aboriginal people, whom many (mistakenly) believe have lost all connection with law, still hold on to elements of culture and law through their patterns of family obligation, loyalty and reciprocity, as well as attachment to surviving knowledge about places of significance and stories. There is no single, unified Aboriginal voice or identity in WA, articulating a singular message about law and its relevance to today’s world, rather there are a multiplicity of voices, each expressing a different view and emphasising different priorities.

Not surprisingly, therefore, there are some significant differences in terms of the practice of law in daily life, as well as some sharp differences of perspective in relation to key issues such as the place of traditional punishment and penalty (often, pejoratively, referred to as simple ‘pay-back’), marriage practices, obligations of family and countrymen, rules concerning burial and inheritance, the role of Elders in dispute resolution, and the general relevance of traditional law to ‘modern’ issues such as family violence, juvenile crime, petrol sniffing and alcohol abuse.

This does not mean that it is impossible to identify common threads in these narratives. Most Aboriginal people consulted by the WA LRC want to see action taken on key issues such as overrepresentation and the unacceptable levels of family violence in Indigenous communities, and they want these forms of action to be based upon close collaboration with Indigenous communities, including a commitment to fostering and nurturing local capacity for Indigenous people themselves to take the lead.

Respect and Acceptance as Opposed to ‘Incorporation’ or ‘Recognition’

Aboriginal law is not written and codified in the Western sense and is passed on through language, song and ceremony. Law is inscribed into the landscape and often in the very bones of the Elders who are its living embodiment. Aboriginal people have some justified concerns about the implications for their law of any ‘recognition’ process.

Many argue that the laws are simply too different. Most importantly, they fear that Aboriginal law will inevitably be appropriated by whitefella law if written down, classified and codified (these being essentially non-Aboriginal practices). Far from being Aboriginal law, it would then become the property of lawyers.

To avoid this cultural appropriation the simple solution is to leave the core of Aboriginal law alone and ‘unwritten’, focusing instead on creating a series of non-colonising agreements and partnerships between Aboriginal and non-Aboriginal communities on issues of concern, including alcohol-related issues, family violence, juvenile crime and anti-social behaviour. The non-Aboriginal system, it may be noted, has singularly failed to provide solutions to these crises in Aboriginal communities.

Community Justice Mechanisms

Issues of community-government partnership in the design and delivery of community justice mechanisms featured prominently in the consultations. This concurs with the 1986 review of Aboriginal Customary Law by the ALRC, which found a significant investment by Indigenous people in the development of what they referred to as ‘local justice mechanisms’ involving ‘increasing Aboriginal input in various ways in application of the general law’.[6] Community justice mechanisms encompass a diversity of practices, including community justice groups, justice agreements and strategies, diversionary projects, mediation and dispute resolution schemes, community capacity-building initiatives, night patrols, safe houses, family violence prevention programs and circle sentence ‘courts’.

Community justice mechanisms are in step with emerging national and international good practice where Indigenous justice is concerned: a ‘synthesis and synergy’ approach to reform involving a gradual convergence of Indigenous and non-Indigenous values, beliefs and practices.[7] They provide a pathway for the construction of what Fitzgerald called a ‘vibrant and decentred Aboriginal Law’ with ‘[c]entral government deferring to local institutions to organise local life to the greatest extent possible’.[8]

Community justice mechanisms should combine a number of key ingredients including: a strong focus on achieving sustainability, durability and resilience in structures, processes and programs; a willingness to take into account Aboriginal law and culture in the way structures, processes and programs are devised and executed; a commitment to nurturing the necessary governance structures; a process of capacity building, both in Aboriginal communities and in the government agencies that partner them. There is, however, an unfortunate tendency for government agencies to mistake improved forms of service delivery to Aboriginal communities for vibrant community justice run by Aboriginal communities[9] and to deliver these services in a piecemeal and uncoordinated fashion.

Conclusion

The WA LRC project on Aboriginal law still has some way to go, but it is clear that the core challenge will be whether whitefella law has the capacity to accept difference and to develop mechanisms to allow more formal status and authority to be returned to Aboriginal law. It is not simply a case of ‘recognition’ (we know Aboriginal law exists and provides the parameters for people’s existence); nor is it a case of identifying the bits of Aboriginal law that can neatly be ‘incorporated’ in the general law. As we were told in one remote community:

Aboriginal Law – older and stronger, from sky to earth and sea. Whitefella law – new, small, come lately.[10]

Harry Blagg and Neil Morgan are employed at the Crime Research Centre, University of Western Australia. They have been Directors of Research for the Law Reform Commission project in Western Australia. The project considers how Aboriginal customary law is made and applied, who is bound by such law, and whether, how and to what extent such law should be recognised.[11]


[1] Mabo and Others v Queensland (No 2) [1992] HCA 2.

[2] Human Rights and Equal Opportunity Commission, Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, (1997).

[3] The most important single document in this regard in Western Australia is the ‘Gordon Inquiry’: Putting the Picture Together: Inquiry into the Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities, Government of Western Australia, 2002.

[4] Thematic summaries of these consultations can be found at the WA LRC website: <www.lrc.justice.wa.gov.au> at 25 November 2004.

[5] Several of these papers are already available on the WA LRC website; others will be finalised by the end of 2004.

[6] Australian Law Reform Commission, The Recognition of Aboriginal Customary Law, (1986) 7.

[7] P Havermann, (ed) Indigenous People’s Rights in Australia, (1999) 8.

[8] T Fitzgerald, The Cape York Justice Study, Queensland Government, (2001) 113.

[9] Aboriginal Social Justice Commissioner, Social Justice Report 2003. Human Rights and Equal Opportunity Commission, Sydney (2004). <www.hreoc.gov.au> at 25 November 2004.

[10] Description by an Elder at Warburton Community.

[11] <www.treaty.murdoch.edu.au/Conference%20Papers/Ralph%20Simmonds.htm> at 26 November 2004.


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