Humphry, Alison --- "An Opportunity Lost for Aboriginal Self-Determination: Australia's Compliance with ILO 169" [1995] MurdochUeJlLaw 17; (1995) 2(1) Murdoch University Electronic Journal of Law

" ...I would submit... that it is necessary from the moment the Aborigines of this country are declared British subjects they should, as far as possible be taught that the British laws are to supersede their own, so that any native, who is suffering under their own customs may have the power of an appeal to those of Great Britain or, to put this in its true light, that all authorised persons should in all circumstances be required to protect a native from the violence of his fellows, even though they be in the execution of their own law."

Correspondence Lord John Russell to Sir George Gipps 8 October 1840[1].

INTRODUCTION

Aboriginal Law has not been recognised historically in Australia.  This can be traced back to the "settlement" of Australia, and the assumption that it was "terra nullius", legally defined as a land uninhabited by a recognised sovereign, or by a people with recognisable institutions and laws.

At the 76th session of the International Labour Conference in 1989, the members of the International Labour Organisation (ILO) adopted Convention 169 - Concerning Indigenous and Tribal Peoples in Independent Countries. This was a revision of the earlier Convention 107 of 1957 concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries - which in turn was a more comprehensive version of earlier attempts to frame international standards for the protection of indigenous workers, in keeping with the organisation's focus on labour issues.[2]

The main impetus behind revision of Convention 107 was that it had long been viewed as outdated due to its assimilationist policy orientation[3]. The view taken as more appropriate in present times is that indigenous peoples should be able to be self determining, and "enjoy as much control as possible over their own economic, social and cultural development"[4]. Therefore, the drafters of the new convention were concerned to reflect this thinking.  Articles 8 and 9 of the convention concern recognition of the customs and customary laws of indigenous peoples.  At first glance, they appear to reflect the new thinking.  Yet the convention has been criticised for remaining assimilationist in character[5].  One issue to be addressed in this paper is what articles 8 and 9 of ILO 169 actually require to be complied with.

The other issue discussed in this paper is whether Western Australia complies with these requirements.  Australia has not yet ratified ILO 169, and the convention is seen as standard setting rather than prescriptive[6]. However, it is important to be continually holding up Australia's treatment of its indigenous peoples for scrutiny against the international standards of the time; and to examine both rigorously.

METHODOLOGY AND SCOPE OF THE PAPER

It is intended in this paper to concentrate on the interplay between the customary law of Australian Aboriginal people and the criminal justice system of Western Australia.  Articles 8 and 9 are potentially huge in scope, encompassing references to family, property and other areas of law. It is proposed here to deal with other areas of law only where incidental to the discussion of criminal justice.  Because articles 8 and 9 deal with similar issues, it will be useful to examine them section by section to ascertain requirements and compliance, rather than as a whole, since we assume that the convention does not intend to be tautologous.  However, Article 9 is in some ways a subset of Article 8, so discussion of Article 8 will be more comprehensive in this paper.

ARTICLE 8(1)

Article 8(1) of the convention states: "In applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws."  To determine the requirements of Art. 8(1), we need to ask three questions:  First, what is involved in the application of national laws and regulations?  Second, what is a custom or customary law? Third, what is meant by "due regard"?

The application of national laws and regulations

The first issue that arises is whether "national laws and regulations" refers to criminal law, civil law or both.  The forerunner to Art. 8(1) was Art 7(1) ILO 107 which stated that "in defining the rights and duties of the populations concerned, regard shall be had to their customary laws". Bennett, while commenting that article 7(1) is imprecise, quotes the International Labour Office's interpretation of Art 7(1):  "[it recognises] in a very general way that in the field of private law, administrative and judicial methods of applying civil and penal provisions should be adapted as far as possible to customary institutions and standards"[7].  Article 8(1) appears to make no distinction between civil or criminal laws, simply referring to "national laws and regulations". Therefore, the State is required to have regard to customary laws in all areas of law.

The next issue is whether the term "applying" relates to procedural or substantive matters or both.  The generality of the section seems to indicate that both procedural and substantive matters could come within the purview of Art.8(1).  Further, it seems clear that Article 8(1) refers to the judicial and administrative application of the law, that is, the court system.  The role of the government in that case is to ensure that the courts comply with this requirement.

Substantive Liability

Taking custom or customary laws into account in substantive matters means looking at ways in which liability under the law is affected by these laws. As set out in the Australian Law Reform Commission's report on the recognition of Aboriginal customary laws[8], areas most affected in the criminal law are questions of intent, and defences - essentially those laws which involve an assessment of the perpetrator's state of mind.

The most important issue to address is the concept of the "reasonable man" so often used in legal thinking - for example in the traditional application of the provocation, self defence and duress defences.  It is obvious that what is reasonable to the paradigm example of the male passenger on the Clapham Omnibus will diverge significantly from the views held by Aboriginal people with a system of law based on a belief structure quite different to the Judeo-Christian structure.  For example, most Aboriginal laws are concerned with attributing harms caused to a particular person, and are not fault based.  That is, punishment depends more on causation than intent.

It would seem that Article 8(1) requires a qualification of the purely objective test for these defences - to allow the jury to take into account the particular characteristics of the person's ethnicity and the nature of the community or circumstances that she lives in. That is, what would the reasonable Aboriginal person in that community have done? This aspect of reasonableness should also be considered in the prosecution of offences against public order.  Different Aboriginal traditions may entail certain "visible" practices, such as sitting in public in large groups, making those people more likely to be exposed to public order offences. Certainly in the Laverton/Skull Creek incident, it appeared to be suggested by the Royal Commission report that if the reason for the large number of Aboriginal people in transit in the incident had been known and/or legitimately recognised (they were travelling to a rain-making ritual ceremony), the events there (resulting in the arrest of every man involved in the incident) could have been averted or minimised[9].

Application of procedural laws

The application of procedural laws is probably more relevant to the majority of Aboriginal offenders, given that the evidence suggests that cases of direct conflict between Aboriginal and Non-Aboriginal offences are actually not particularly common[10].  It seems that it is often matters such as the decision to prosecute, the trial, the giving of evidence and so on which affect more Aboriginal defendants and may be in conflict with customary law, or may take insufficient account of Aboriginal customs and institutions.

One kind of action that this article requires is a due regard for language differences, and particularly difference in language significance. Examples are uttering of names of certain people or speaking about a subject when an elder is present[11]. Other types of compliance would require some recognition in evidence laws of customs and customary laws; the laying down of guidelines regarding the decision to prosecute; and safeguards against trials in which the defendant does not understand the type of proceedings.

What is a "customary law"?

Bennett states that during the drafting of Article 7 ILO 107, it was stressed that the phrase "customary laws" should not be interpreted too rigidly; that is, the phrase could include unwritten tribal codes[12]. There is no reason to suggest that this would be differently interpreted in the revised version of the convention; in fact the stated aim of the revised convention would seem to imply a greater willingness to give a wide definition to the term.

"Aboriginal Law" as a single entity does not exist - structures, traditions and laws are different for various groups[13].  Further difficulties arise because the laws are largely unwritten, often secret, and "based on ideas and concepts radically different from "Western" ideas and concepts"[14]. Aboriginal law does, however, seem to centre around kinship systems[15] and includes a significant spiritual element.  In the words of Meggitt: "Man, society and nature are interdependent components of one system whose source is the Dreamtime.  All are therefore amenable to the law... it is all djugaruru, the law, economy, ritual, the technological rules and the law of nature"[16].

Problems of defining customary law have become less problematic under ILO 169 which refers to "customs or customary laws".  It removes the need in ILO 107 to distinguish "customary law" from "custom" which means that a less euro-centric view of law, one more suitable to holistic approach to "law" of the Aboriginal people.It seems that the requirement here is that no distinction between law and custom should be attempted by those applying the law .

Due Regard

This phrase in Article 8 is seemingly vague, yet potentially limits the gains which can be made by indigenous people.  It is possible that is implies merely a duty upon the government similar to procedural fairness, that is, if the customary laws are duly considered, then the discretion remains with the decision maker as to whether to apply the laws in keeping with the traditional system of law or otherwise.  In that case, there is, therefore, no positive duty to incorporate customs and customary laws if it is deemed inappropriate for some reason by the non-Aboriginal legal orthodoxy.

The other possible interpretation of "due regard" is that it is necessary for customary law to be given its due worth.  That is, it is more than a procedural requirement for consideration to be taken, but substantively, it must be given enough weight as is required in the circumstances.  This may imply a greater duty, but it is still up to the government or decision maker to determine the extent of this "due regard".

Overall requirement of 8(1): Overall, Article 8(1) seems to require that judges and administrators applying all forms of law to Aboriginal people must take into account to an extent appropriate in the circumstances, the customary law of that person, both in determining substantive liability, and in procedural matters.

ARTICLE 8(2)

Article 8(2) states: "These peoples shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognised human rights."  The issues to consider here are, firstly, what is a fundamental right, secondly, what does incompatibility mean; thirdly, what is an internationally recognised human right; and fourthly, how will conflicts over rights be resolved?

Right to retain customs and institutions

This section refers to customs and institutions, not specifically to customary law; however, the commentary on it(and the foregoing Article in ILO 107) appears to assume that it does in fact include legal customs and institutions[17] in a more general definition.  Again, the distinction between "custom" and "customary law" seems to have been collapsed.

Another point connected with the phrase "right to retain" is whether, as Bennett wonders for Art 7(2) ILO 107, the language of the section places the States under a duty to prohibit activity, public or private, which would be likely to undermine those customs or make their continued practice difficult or impossible[18].  It would seem that the newer provision requires more positive action by States, referring to indigenous peoples' "right to retain" rather than being "allowed to retain" their customs and institutions as was the case.  A right is stronger than merely being given permission.

Where not incompatible with fundamental rights defined by the national legal system and with internationally recognised human rights. This part of Article 8 has been the most strongly criticised.  It is considered by indigenous peoples that the inclusion of this phrase merely reinforces notions of assimilation, and makes a mockery of the lip service paid to self determination.

Simply, the phrase means that where a custom or institution is considered by the State to be incompatible with the fundamental tenets of the (non-Aboriginal) Australian legal system, indigenous people will have no right to retain this custom.  What then is a "fundamental right" defined by the Euro-Australian legal system?  These rights are not set out anywhere, and rely, realistically, on what the adjudicator or policy maker determines them to be. There are, however, a few things we can say about the fundamental principles of our legal system, and they involve the principle of liberty. The Victorian Council of Civil Liberties considers that the fundamental rights and freedoms in Australia are: freedom of opinion and belief/religion; freedom of speech and expression; freedom of association; freedom of assembly; the right to privacy; and freedom from discrimination[19].  These are, as Melinda Jones says, part of a wider principle of "liberty"[20].

The Australian legal system is based on that of Britain[21], and is intricately linked with the political economy of capitalism.  The primary values of the liberal, laissez faire theory underpinning the capitalist system are protection of the integrity of the individual, and the related issue of protection of private property, or as Ackerman says, "Each of us must control his body and the world around it"[22].  Robin West defines the official values of liberalism as autonomy and fear of annihilation. That is, because liberal theory conceives the individual as the paramount unit of society, as a separate entity, separation from others gives the individual autonomy, but also every separate "other" is a source of danger and a threat to the individual's autonomy[23].  It is probably correct therefore, to define the fundamental rights and values of the Australian legal system in these terms - as protecting the individual from harm, and promoting their rights to own property.  Principles of justice formulated from liberal theories have stressed formal equality - that is, that one law should apply to all citizens, the law having been made without regard to "...[his] place in society, his class position or social status...his fortune in the distribution of natural assets and abilities, his intelligence and strength and the like...his conception of the good and the particulars of his rational plan of life [and] even the special features of his psychology..."[24].  If the principles of liberalism are the tenets of our legal system, as I argue, then any form of legal pluralism will be viewed with suspicion, and probably not be compatible with the principles of the national legal system.

Next, we have to consider what "incompatibility means.  First, Bennett considers that the term "legal system" is wider than simply the application of national laws[25].  Therefore, the conflict does not have to be directly with a law, but simply with the values of the law.  Tigar and Levy make the distinction between systems of law that "agree upon socially necessary principles of conduct whose violation would result in punishment",[26] and those that "lock into words, expressed as commands, the rights or duties which a particular group will use its power to protect or enforce, and provide predictable methods of settling disputes which arise within this context"[27].  They argue that "Western" legal ideology is of the second type, and while they do not draw this conclusion, it would seem that Aboriginal laws are of the first type. Therefore, it is more than likely that there will be conflicts between a system founded on rights and freedoms, and one which relies on codes of conduct promoting social harmony.

An example of a situation where there might be a conflict between Aboriginal customs and the fundamental rights of the non-Aboriginal Australian legal system would be where particular rituals are carried out on land which is privately leased, or where hunting or fishing occurs on private land, giving rise to possible civil liability and criminal charges or trespass, stealing and so on, because the custom contravenes the fundamental views held by the dominant society as to the ownership of land.

The concept of "internationally recognised human rights"  is also a vexed question.  As Eide and Alfredsson note, it is often argued that human rights, and the Universal Declaration of Human Rights in particular, are predominantly "Western" in approach.  Indigenous peoples and minorities had no representation during the drafting and adoption stages of the Declaration[28].  Although they confidently conclude that the broad wording of the declaration and its general principles give no credence to the accusation of Westernisation, indigenous peoples may take issue with this.

One obvious example is the punishment of tribal offenders.  Should an offender be speared, for instance, as a result of committing an offence? This issue will be discussed in the context of Article 9(1).  Further, Article 8(2) would be relevant in cases of family law: arranged marriages for instance are in breach of Article 16 of the Universal Declaration of Human Rights.  Another example that the Australian Law Reform Commission points out is the initiation of Aboriginal men as a "harsh or cruel treatments" according to Article 27 of the International Covenant on Civil and Political Rights 1966 (and Article 5 of the Universal Declaration of Human Rights)[29]. As the Commission points out, there is the problem of conflicting cultural responses to particular situations - what is "cruel and inhuman" to one culture may differ from another culture[30].  Also: who is responsible for the maintenance of human rights?[31] The problem that many Aboriginal people have is not that they do not want to enforce human rights standards, but that they wish to determine these issues for themselves - it is an issue of self-determination.

Procedures to be established

This seems to require guidelines for competing priorities between traditional and non-traditional laws.  It seems that some kind of administrative body should be given the responsibility of resolving conflicts arising from this principle.  The Article does not require Aboriginal participation in the resolution of these conflicts.

ARTICLE 8(3)

Article 8(3) states: "The application of paragraphs 1 and 2 of this article shall not prevent members of these peoples from exercising the rights granted to all citizens and from assuming the corresponding duties."  Bennett, commenting on the almost identically worded Article 7(3) ILO 107, says that this is an application of the general principle that indigenous people should enjoy the general rights of citizenship without prejudice[32]. It clearly imposes a duty on States to grant citizenship to indigenous people[33].

The implication of Art 8(3) is that indigenous peoples may choose to adopt a partially or wholly European lifestyle.  An indigenous person cannot be forced to live by customary law, or berestricted in any way.  The section makes it clear that forms of apartheid cannot be sustained by the requirement that some kind of "special treatment" in the form of "due regard to Aboriginal Law" be given.  Justice Brennan's statement in Gerhardy v Brown[34] that the difference between land rights and apartheid is the difference between a home and a prison, is relevant here. According to Brennan J, the difference is between a beneficial recognition of Aboriginal Law, and an enforced relegation of Aboriginal people to customary law, which may, after the impact of white invasion be wholly or partially inappropriate.

The interesting issue that this raises is who should have the choice of exercising rights of citizenship under the law.  It could be argued that the section firmly entrenches the fact that the non-Aboriginal legal system is, ultimately, the legitimate one; however, the better view is probably that it gives Aboriginal peoples the right to decide for themselves whether they will choose to be bound by traditional law. In granting the right of choice of system however, traditional authority structures may be undermined and the traditional law is therefore changed by non-Aboriginal intervention in any event. In Aboriginal communities where individual "autonomy" is not an official value, but the maintenance of kinship ties and social harmony is, the Law gets its cohesiveness from its application to the whole community. An example of this is given by Tonkinson[35] who describes the exercising of the right not to marry arranged spouses, and the collection of social security and child endowment benefits by young women in the Jigalong community of Western Australia.  This practice led to the undermining of traditional social norms and institutions.

It would further seem that there is an aspect of compulsion to Article 8(3).  Indigenous peoples are allowed to assume the rights of citizenship, but appear to be compelled to perform the duties which come with it.

AUSTRALIA'S COMPLIANCE

Substantive matters

With respect to substantive matters of intent and the establishment of common law defences, Australian courts are able to take account of customary law, although there is no customary law defence as such.  It has been established that an Aborigine exercising an honest claim of right - ie, one who makes a claim of right based on Aboriginal law and honestly believes it is recognised by the general law, incurs no criminal responsibility[36]. The ALRC report on customary law points out that the expression of the meaning of "intent" in the Code, s.23, does not exclude evidence of the defendant's actual state of mind, even if regarded as extraordinary or "unreasonable"[37], if it could be taken into account at common law.

The common law defences, such as provocation or duress may also admit some tribal law considerations. Provocation for instance must be sufficient to deprive an ordinary person of self control.  "Objective" tests these days seem more amenable to admitting the reasonable characteristics of people other than Anglo-Saxon males[38].  For instance, the case of R v Mangatopi [39] approves the principle that an "ordinary person" includes and ordinary Aboriginal male living in a remote Aboriginal settlement. Moffa v R[40] also seems to be authority for the need to take into account the ethnic background of a defendant. Eggleston, quoted in the ALRC report, suggests that non-Aboriginal juries would be likely to base their views on stereotypes and folklore, and that evidence should be allowed to show the particular nature of the provocation[41].

Another issue is whether duress under the common law can be equated to compulsion under traditional Aboriginal law. Eggleston suggests that duress may be appropriate as a defence when Aborigines are required under traditional law to perform an (unlawful at Australian law) act, the non-performance of which will result in death or physical harm.  The position is unclear in WA law, but the ALRC report points out that the defence of duress may be inappropriate because traditional Aborigines follow the laws not only because of threat, but because they believe in the legitimacy of the laws[42].

It is further unclear whether s.31 of the Code which treats authorisation - the exercise of a right granted or recognised by law - as an excuse.  It is probably unlikely that customary law would be found capable of granting rights in this way, because of the potentially wide effects it would have; to recognise traditional laws in this way may amount to more than "due regard".

Procedural Matters

Probably the first "procedural matter" to deal with is that of arrest and custody. Basically there is no provision in this State to treat the arrest or custody of Aboriginal people any differently to give respect to custom or customary law[43]. In fact the "Anunga Rules"[44] of the Northern Territory Supreme Court have been explicitly held not to be part of the common law of Western Australia[45].

With respect to the decision to prosecute, the Director of Public Prosecutions has a number of guidelines to follow in making that decision46. There are no guidelines dealing explicitly with the discretion in terms of customary law; but there are two which may be of interest: s.30(o) which directs consideration of whether a sentence has already been imposed on the offender which adequately reflects the criminality of the episode; and s.30(j) which requires consideration of whether the alleged offence is of minimal public concern.  It has been noted in R v Grant[47] that "should the Minister for Justice in his discretion decide that the white man's law has in this instance gone far enough with this black man, then it should not be thought that the Supreme Court would be so presumptuous as to dissent from that view."  In other words there is a ministerial discretion to avoid prosecution for an individual.

Having made the decision to prosecute, the next issue that arises is fitness to plead.  If the defendant does not understand the nature of the proceedings, is she/he fit to plead?  Section 631 of the Criminal Code 1913 WA states that a person is not required to plead where unable to make a proper defence.  This would seem to apply to a lack of comprehension of Anglo-Australian cultural concepts[48].  Section 49(1) of the Aboriginal Affairs Planning Authority Act 1972 (WA) (AAPA Act) requires that the court must refuse to accept or admit a plea of guilty where it is satisfied that the accused is not capable of understanding the plea of guilty.  The Court has a duty to examine the defendant in order to ascertain whether this section applies[49] There is therefore a two tier process: first apply s.631 of the Code, then s.49(1) of the AAPA Act. Note however, that this process does not empower a court to dismiss a complaint, but the court may enter a plea of not guilty[50].

It was said further in Ngatanyi v The Queen[51] that the lack of an interpreter would be relevant to the inquiry about fitness to plead.  The court does have a discretion to permit evidence through an interpreter[52], but no duty to do so, except that which is implied by Ngatanyi..  Other States have guidelines on the use of interpreters53 but WA does not.

Another area of concern is the giving of evidence.  Certain cultural practices make the taking of evidence in the Anglo-Australian tradition unsuitable in some circumstances.  The Evidence Act 1975 (WA) attempts to deal with Aboriginal peoples as a special group by making it possible to make an Aborigine a "special witness" under s.106R(3) as one who would be "likely to suffer emotional trauma or..be so intimidated or distressed as to be able to give evidence...satisfactorily...by reason of...cultural background...".  This section provides that these witnesses can give evidence in alternative manners54 which may relate to giving respect for cultural institutions by helping Aborigines with particular avoidance relationships[55].

Finally, matters of bail may be important in giving respect to customary laws.  If an offender must participate in a traditional punishment to restore order to the community, bail laws should reflect that.  Western Australia's bail laws do not make provision for this, although there is authority in the Northern Territory for the proposition that bail should be granted where it is necessary for the defendant to participate in culturally significant events[56].  This has not yet been affirmed in WA.

Retaining Customs and Institutions

With respect to Article 8(2) in particular, the major State action in Western Australia on the question of customary law has been the enacting of the Aboriginal Communities Act 1979 (W.A.). This stemmed from a practice by Syddall, a stipendiary magistrate in the north west of the State, of inviting tribal elders to sit with him in the courtroom while Aboriginal defendants were being heard, and discussing penalties with them[57].  This informal practice ultimately led to the Act, which applies to several Aboriginal communities in Western Australia.

The Act works by allowing community councils to make by-laws on specified subjects, including littering, disorderly conduct, language or behaviour, restrictions on alcohol and regulation of firearms[58].  The Attorney General of the time stated with respect to the Act: "While the community by-laws enable customary law to be taken into account, they do not recognise or validate them in the sense of sanctioning some of the traditional forms of punishment such as spearing which are illegal under State law"[59].

It would seem overall, therefore, that WA does comply in some respects with the requirement that customary laws be given recognition, but only on an ad hoc basis, with certain judges exercising their discretions in particular ways, with very little legislative guidance.  That legislation which does exist tends to operate very much at the "customs" end of the continuum, giving little effect to that which looks like law in the non-Aboriginal society. The policy, if there is one, is obviously to protect Aboriginal peoples unfamiliar with mainstream law, but not to legitimate Aboriginal laws as such.  Therefore there can be no guarantee of compliance with Article 8(1) and (2).  There seems however, to be nothing in Article 8(3) which Australia does not comply with.

ARTICLE 9(1)

The two sections of Article 9 are very similar. Article 9(1) states: "To the extent compatible with the national legal system and internationally recognised human rights, the methods customarily practised by the peoples concerned for dealing with offences committed by their members shall be respected."

As foreshadowed earlier, this Article appears to deal with the punishment aspects of crime, and it seems to be this area indeed which generates the most discussion in the media.  A notable case in Australia was that of R v Sydney Williams[60] where an Aboriginal offender was given a two year suspended sentence if he agreed to submit himself to the tribal elders and to obey their lawful directions.

The same problems arise in this section in interpreting the qualifying statements that traditional methods of dealing with offenders should be consistent with the national legal system and international human rights.

"Punishment" vs other "methods of dealing with offences"

One preliminary point is that the convention refers to "methods of dealing with offences" as opposed to "punishment."  As Bell and Ditton say, punishment of crimes has a different function in the Aboriginal system from that in the non-Aboriginal Australian legal system, the need in Aboriginal systems being to incorporate the offending individual within the system.61 Therefore, informal methods of conciliation or arbitration may be the most effective method of dealing with a dispute even where "guilt" is established.  This may cause problems if the method of "punishment" is seen by the Euro-Australian legal system to be inadequate for offence committed. Many would argue in fact that the Sydney Williams case was inconsistent with the national legal system[62]; that is, that for certain offences, any method of dealing with offences other than punishment is inconsistent with the principles that the Australian legal system isbased on.

A situation like this is likely to arise where the offence is not committed against another Aboriginal person, but against a non-Aboriginal person, or perhaps more likely, against the property of a non-Aboriginal person. Tonkinson describes the problem of vandalism at Jigalong community, saying that because material goods are not considered important, they are not inclined to punish young offenders, whereas the non-Aboriginals see it as a matter of increasing concern[63].

Harsh Punishments

The converse situation is that where the traditional punishment for an offence is seen by the national legal system and international human rights instruments as too harsh.  An example of this is the incidence of tribal pay-back killings, or tribal spearings/ woundings as punishment for serious transgressions.

It seems obvious therefore, that tribal killings are in conflict with the national legal system (which does not condone capital punishment), and every international human rights instrument[64].  It is less obvious whether a State must, under the convention, condone physical punishments such as spearing or other forms of wounding.  As stated earlier, human rights instruments generally contain proscriptions of cruel and inhuman treatment or punishment.  However, as is pointed out in the Law Reform Commission report, it may be a moot point as to what is more cruel to various peoples. Certainly the high rate of Aboriginal deaths in custody has made it open to question whether imprisonment per se is less cruel and inhuman.  See for example the submission of HC Coombs to the Law Reform Inquiry on customary punishment: "punishments...such as prolonged imprisonment especially among alien strangers and away from their own country are markedly more "inhumane" and unconscionable" than a spear through the thigh - usually voluntarily accepted as part of a consensus settlement"[65].

Punishments for non-traditional acts

Article 9 does not limit the recognition of customary law to situations relating to traditional law; in fact, it appears to go much further, especially with regard to section 2, which relates to application by the courts of customary principles. It appears however, that article 9(1) refers to the distribution of justice by the community itself, while Article 9(2) refers to the duty of the courts and authorities.

While the convention does not seem to limit its scope to traditional offences, Aboriginal communities may be loath to deal with non-traditional offences by traditional law.  Therefore, while it may be required that customary methods be respected, it may not be fair to refer all matters of law enforcement to a community which may only have appropriate customary responses to certain acts or types of acts.  To this end, "respecting" the customary responses to offences may not require a full-scale handing over of all aspects of punishment to the community or elders.

ARTICLE 9(2)

Article 9(2) states: "The customs of these peoples in regard to penal matters shall be taken into consideration by the authorities and courts dealing with such cases."

Customary Law and Sentencing

How far does Article 9(2) extend?  Does it require courts to have regard to traditional penal matters only in cases involving customary law, or in all cases?  The provision says: "...courts dealing with such cases " (emphasis added), referring to offences committed by members of an indigenous community (Article 9(1)).  This is inconclusive, but the convention does not specify what kind of offence is required for Article 9 to apply. Therefore, the position appears to be that the customs of Aboriginal people in penal matters should be taken into account in all cases.  Certainly if the convention is a standard setting one to be read up, this would provide a real benefit for Aboriginal people.

Punishment for the same act twice

One important issue in Article 9(2) is that of the internationally recognised human right not to be punished twice[66].  Therefore, if respect is to be given to the traditional method of punishment, it is likely that an alternative "non Aboriginal Australian" punishment cannot be given.

DOES AUSTRALIA COMPLY?

Compliance with Article 9 requires "respect" for the customary methods of dealing with offences, and that customs be "taken into consideration" by the authorities and courts.

We have already discussed the Aboriginal Communities Act and the fact that it takes customary law into account but does not sanction illegal forms of punishment such as spearing.  The Act seems to be aimed more towards self management, rather than at implementation of traditional laws.  The council has power to make by-laws with respect to certain matters[67] and to sentence to imprisonment for 3 months or give fines[68].  The power to make by-laws does not seem to extend to providing for traditional methods of dealing with offences.

There is in fact no legislation in Western Australia which provides for the respect of traditional methods of dealing with offences.  It is clearly viewed by the state that traditional practices such as spearing or other physical wounding are contrary to human rights; and based upon the discussion above, it seems that this would be regarded as so internationally as well.  Therefore, with respect to those offences, Australia is probably not in breach of the convention.  However, there are various other methods of traditional punishment which are not unlawful, but not given respect at the general law as appropriate for dealing with offenders.  The paradox is that if they are lawful methods, they are usually viewed as being too lenient.

The real action on the issue of taking penal custom into account in sentencing has come not from government, but from certain courts.  The judicial approach in Australia is best summed up by this statement from Justice Toohey: "The relevance of Aboriginality is not necessarily to mitigate; rather to explain or throw light on the circumstance of an offence...In doing so it may point to an appropriate penalty."69

Having regard to the customary practices of dealing with offences may extend to declining to impose non-customary practice on those unable to cope with it.  See for example Justice Muirhead in R v Jungala[70]: "I take into account that to impose a custodial sentence could be tantamount to death. It is a fact that he is too old to come to terms with imprisonment when he is unable to properly comprehend why he is there when his family have already paid what he would regard as an adequate penalty." This has not been adopted yet in WA.

Several Northern Territory cases have held that the opinion of the community in imposing an appropriate sentence may be relevant, especially where the sentence helps to restore order to the particular community.71 WA law has not yet applied this principle.

WA does seem to comply however, with the requirement to take penal customs into consideration.  In the case of R v Colley[72], Brinsden J held that the way a defendant has or will be dealt with by Aboriginal Law must be considered by a court, notwithstanding that that might involve the commission of an offence.This seems to be less problematic as a concept for the judiciary because it does involve a basic human right, and requirement of the Criminal Code that no individual should be punished for the same offence twice.

Overall, Hennessy says, "In practice, application has resulted in sentencing dispositions that facilitate early release in order to allow the defendant to undergo punishment"[73]. Care has always been taken by judges in cases of this nature though, to stress that the punishment itself is not being condoned by the judge.  Again, it seems that although there may be limited compliance with the article, most forms of recognition which have a "self-determination" flavour will be incompatible with the legal system.

Often it is difficult for a court to take these customs into account, because of matters relating to Article 8(3), that is, the right of Aboriginal peoples to live a partially or wholly European lifestyle and the fact that there is some merging of attitudes even in more traditional communities.  A recent example is a report of a bashing at Jigalong community where the Magistrate took traditional forms of punishment into account for the perpetrator, yet the Aboriginal carer of the victim felt that the punishment was too lenient.  It is obvious therefore that the respect of customary law will not eliminate conflict;  it is preferable to have some kind of formal guideline for applying it so that problems do not arise from ad hoc application of these principles.

This leads to the question of judicial education.  For laws to be applied sensitively by non-Aboriginal members of the judiciary, education is very important.  The Royal Commission into Aboriginal Deaths in Custody recommended, inter alia, that:   Judges and government employees involved in the administration of criminal justice should be trained in Aboriginal culture and have informal discussions with Aboriginal people.  There should be consultation with communities on the range of sentences that the community considers appropriate. Some education mechanisms are in the process of implementation at the moment, regarding Aboriginal people and the criminal law and process.  This may go some way in helping with effective compliance with the convention.

In conclusion, compliance with Article 9 appears to come, as with Article 8, in a somewhat sporadic fashion, from certain judges.  It appears that principles at common law are slowly developing, and it is to be hoped that the more progressive decisions from the Northern Territory will be applied in Western Australia.  However, WA does not, as yet, apply many of these principles.  With regard to legislation, there is nothing in WA to explicitly comply with Article 9.

CONCLUSION

Although we can say that there is limited compliance with ILO 160 Articles 8 and 9, it should be recognised that what compliance there is does not relate to the more sensitive issues of self determination.With both Articles, the compliance has been with the requirements that customary law be taken into account when applying non-Aboriginal law, not, for the most part, the requirements that require respect for Aboriginal law and institutions themselves.  It is questionable therefore, whether Australia's limited compliance with the Convention can be seen as anything more than limited protection for Aboriginal people in a still broadly assimilationist legal system.

NOTES

1. Report by Grey on the method for Promoting the Civilisation of Aborigines, H.R.A. series 1 v.xxi p.35, quoted in Swanton (ed) Aborigines and Criminal Justice (1984) Australian Institute of Criminology, ACT Australia at 338

2. Examples are the Forced Labour Convention 1930; the recruiting of Indigenous workers Convention 1936; the Contracts of Employment (Indigenous Workers) Convention 1939 and the Penal Sanctions (Indigenous Workers) Convention 1939, cited in Morse, Bradford W (ed) Aboriginal Peoples and the Law (1985) Carleton University Press Inc, Ottawa

3. Barsh, Russel Lawrence "An Advocate's Guide to the Conventionon Indigenous and Tribal Peoples" Arizona Journal of International and Comparative Law (1991) v.8 n.2 reproduced in

4. Partial Revision of the Indigenous and Tribal Populations Convention 1957 (no.107), Report VI(1) at 117 International Labour Conference 75th Session (Geneva 1988) quoted in Barsh, supra n.2

5. for instance Clarke, Geoff,(1984) "ILO Convention 107 - Revision or Reversion?" Aboriginal Law Bulletin v.2 n.4 p.4; and Venne, Sharon "The new Language of Assimilation: A Brief Analysis of ILO Convention 169" Without Prejudice v.2 n.2 1990 p.53

6. see Swepston, Lee "A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention no 169 of 1989" Oklahoma City University Law Review v.15 n.3 1990 p.677 at 678.

7. Gordon Bennett, Aboriginal Rights in International Law Occ. Paper no 37, Royal Anthropological Institute of Great Britain and Ireland p.20

8. Australian Law Reform Commission The Recognition of Aboriginal Customary Laws AGPS Canberra (1986)

9. Clarkson, Bridge & Johnston Report of Laverton Royal Commission Perth (1975-6)

10. Crawford, Hennessey & Fisher, "Aboriginal Customary Laws: Proposals for Reform" in Morse & Woodman Indigenous Law and the State Foris Publications Holland (1987)

11. ALRC, v.2 at 35

12. ibid

13. Sessional Committee on Constitutional Development, Legislative Assembly of the Northern Territory Recognition of Aboriginal Customary Law Discussion Paper No.4 (1992) Govt Printer NT p.9

14. ibid

15. Berndt, Ronald M "Law and Order in Aboriginal Australia" in Berndt & Berndt (eds) Aboriginal Man in Australia Sydney, Angus & Robinson 1965 at 169, quoted in Bell, D & Ditton, P Law: the Old and the New Aboriginal History, Canberra, 1980 at 15

16. Meggitt, MJ Desert People: a Study of the Walbiri Aborigines of Central Australia Sydney, Angus & Robinson, 1962 at 251, quoted in Bell & Ditton, supra n.11 at 15

17. see for example Venne supra n.15 at 60 and Bennett supra n.7 at 20.

18. Bennett supra n.7 at 22.

19. Wallace, J & Pagone, T Rights and Freedoms in Australia The Federation Press, Sydney (1990) chapters 1,2 and 3

20. "The Fundamental Freedoms" in Wallace & Pagone, id at 2

21. British laws were imported into Australia upon settlement by an Imperial statute (in New South Wales in 1828, in Western Australia in 1829).

22. Ackerman, Social Justice in the Liberal State, quoted in West, Robin "Jurisprudence and Gender" University of Chicago Law Review v.55 n.1 p.1 (1988)

23. West, id at 6-7

24. John Rawls,. A Theory of Justice Harvard University Press 1971 at 137

25. Bennett supra n.7 at 21

26. Tigar, M & Levy, M Law and the Rise of Capitalism Monthly Review Press, New York, (1977) at 278

27. id at 279

28. Eide & Alfredsson in Eide, Alfredsson et al (eds) The Universal Declaration of Human Rights: A Commentary Scandinavian University Press, Oslo (1992)

29. ALRC supra n.8 at 135

30. ibid

31. Crawford, Hennessy & Fisher supra n.9

32. supra n.7 at 22

33. ibid.

34. [1985] HCA 11; (1985) 57 ALR 472 at 521-2

35. Tonkinson, "One Community, Two Laws:  aspects on conflict and convergance in a Western Australian Aboriginal settlement." in Morse & Woodman, supra n.9 at 399-401

36. Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561

37. ALRC at 300.

38. ALRC at 301.

39. [1991] NTCCA 9; (1991) 57 A Crim R 341

40. [1977] HCA 14; (1977) 13 ALR 225

41. Eggleston, E Fear, Favour or Affection, Aborigines and the Criminal law in Victoria, South Australia and Western Australia ANU Press, Canberra (1976) in ALRC at 305.

42. at 308

43. The Commonwealth Crimes Act 1914 Cth provides for the arrest and interrogation of Aboriginal suspects, providing for shorter detention times, the provision of an "interview friend" and other provisions.  Some provisions are involved with customary laws, others are aimed merely at preserving basic human rights for detainees.

44. Laid down by Justice Forster in R v Anunga [1905] ArgusLawRp 117; (1976) 11 ALR 412

45. Gibson v Brooking [1983] WAR 70

46. DPP Statement of Prosecution Policy and Guidelines 1991

47. [1975] WAR 163 at 166

48. Hennessey in Riordan (ed) Laws of Australia - Aborigines Law Book Co

49. Smith v Grieve [1974] WAR 193 per Burt J at 195.

50. Roast v Bynder [1988] WAR 217

51. [1980] HCA 18; (1980) 147 CLR 1 at 7

52. Dairy Farmers Co-op Milk Co Ltd v Acquilina [1963] HCA 59; (1963) 109 CLR 458 at 464

53. See for example Summary Offences Act SA ss.79(a), 83(a); Police Standing Orders Tas 408-11; Police Instructions Qld 4.59A

54. such as by closed circuit television or pre-trial hearings

55. Where a person may not be in the same room with another person because of their kinship obligations; or where they may not utter a particular name for the same reason.

56. R v Jungarai (1981) 9 NTR 30

57. ALRC, p.42

58. s.7

59. News Release, Hon I Medcalfe QC (17 May 1980) quoted in ALRC The Recognition of Aboriginal Customary Laws

60. (1976) 14 SASR 1

61. supra n.13 at 28

62. In this case, it seems that there is some doubt as to its suitability under the circumstances - see ALRC Recognition of Customary Law report, quoting the Mission Superintendent at the community who says that the elders did not want a tribal thing made of it, noting of course that the mission superintnendant should not be necessarily regarded as representing all the views of the Aboriginal community

63. Tonkinson supra n.36

64. for example, the Universal Declaration of Human Rights Article 3; ICCPR 1966 Article 6(1)

65. Submission 262 (29 April 1981) in ALRC supra n.8 at 135

66. Article 14(7) ICCPR 1996

67. s.7(1)

68. s.7(2)

69. unpublished extract from Address to National Criminal Law Congress on Aboriginal Customary Law 24/6/88, quoted in Hennessey, supra n.51

70. Unrep. SCNT 8/2/78 97 of 77

71. See for example R v Dayey [1980] FCA 134; (1980) 50 FLR 57; R v Mamarika unrep. SCNT Gallop J 9/8/78 23 of 78

72 Unrep. SCWA Brinsden J 14/4/78 23 of 78 73 supra n.51 at 1.5.44.

REFERENCES

Australian Law Reform Commission Reference on Aboriginal Customary Laws: Report on a Seminar on the Methodology of Reform ALRC, Sydney (1977)

Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws v.1 & 2 AGPS Canberra (1986)

Barsh, Russel Lawrence "An Advocate's Guide to the Convention on Indigenous and Tribal Peoples" Arizona Journal of International and Comparative Law (1991) v.8 n.2

Bell, D & Ditton, P Law: the Old and the New Aboriginal History, Canberra, (1980)

Bennett, Gordon Aboriginal Rights in International Law Occasional Paper no.37, Royal Anthropological Institute of Great Britain & Ireland

Berndt, Ronald M "Law and Order in Aboriginal Australia" in Berndt & Berndt (eds) Aboriginal Man in Australia Sydney, Angus & Robinson (1965)

Clarke, Geoff, "ILO Convention 107 - Revision or Reversion?" Aboriginal Law Bulletin v.  n.  p.4;

Commonwealth and Western Australian Government, National Response to Recommendations of the Royal Commission into Aboriginal Deaths in Custody - Draft November 1991.

Clarkson, Bridge & Johnston Report of Laverton Royal Commission Perth (1975-6)

Crawford, James; Hennessy, Peter & Fisher, Mary " Aboriginal Customary Laws: Proposals for Recognition" in Morse & Woodman, op. cit.

Eggleston, E Fear, Favour or Affection, Aborigines and the Criminal law in Victoria, South Australia and Western Australia ANU Press, Canberra (1976)

Eide & Alfredsson in Eide, Alfredsson et al (eds) The Universal Declaration of Human Rights: A Commentary Scandinavian University Press, Oslo (1992)

Hennessey in Riordan (ed) Laws of Australia - Aborigines Law Book Co

Meggitt, MJ Desert People: a Study of the Walbiri Aborigines of Central Australia Sydney, Angus & Robinson, 1962

Morse, Bradford W (ed) Aboriginal Peoples and the Law (1985) Carl Ottawa

Rawls, John A Theory of Justice Harvard University Press 1971

Sessional Committee on Constitutional Development, Legislative Assembly of the Northern Territory Recognition of Aboriginal Customary Law Discussion Paper No.4 (1992) Govt Printer NT

Swanton (ed) Aborigines and Criminal Justice (1984) Australian Institute of Criminology, ACT Australia

Swepston, Lee "A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention no 169 of 1989"  Oklahoma City University Law Review v.15 n.3 1990 p.677 at 678.

Tigar, M & Levy, M Law and the Rise of Capitalism Monthly Review Press, New York, (1977)

Tonkinson, "One Community, Two Laws:  aspects on conflict and convergance in a Western Australian Aboriginal settlement." in Morse & Woodman, op. cit.

Venne, Sharon "The new Language of Assimilation: A Brief Analysis of ILO Convention 169" Without Prejudice v.2 n.2 1990 p.53

Wallace, J & Pagone, T Rights and Freedoms in Australia The Federation Press, Sydney (1990) chapters 1,2 and 3

West, Robin "Jurisprudence and Gender" University of Chicago Law Review v.55

Cases cited

Dairy Farmers Co-op Milk Co Ltd v Acquilina [1963] HCA 59; (1963) 109 CLR 458 at 464

Gerhardy v Brown [1985] HCA 11; (1985) 57 ALR 472 at 521-2

Gibson v Brooking [1983] WAR 70

Moffa v R [1977] HCA 14; (1977) 13 ALR 225

Ngatanyi v The Queen [1980] HCA 18; (1980) 147 CLR 1 at 7

R v Anunga [1905] ArgusLawRp 117; (1976) 11 ALR 412

R v Colley Unrep. SCWA Brinsden J 14/4/78 23 of 78

R v Dayey [1980] FCA 134; (1980) 50 FLR 57

R v Grant [1975] WAR 163 at 166

R v Jungala Unrep. SCNT 8/2/78 97 of 77

R v Jungarai (1981) 9 NTR 30

R v Mamarika unrep. SCNT Gallop J 9/8/78 23 of 78

R v Mangatopu [1991] NTCCA 9; (1991) 57 A Crim R 341

R v Sydney Williams (1976) 14 SASR 1

Roast v Bynder [1988] WAR 217

Smith v Grieve [1974] WAR 193 per Burt J at 195.

Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561

Statutes and other Legislation Cited

Aboriginal Affairs Planning Authority Act 1972 (WA)

Aboriginal Communities Act 1979 (WA)

Crimes Act 1914 (Cth)

Criminal Code 1913 (WA)

Director of Public Prosecutions Policy and Guidelines 1991 (WA)

Evidence Act 1975 (WA)

Police Instructions (Qld)

Police Standing Orders (Tas)

Summary Offences Act (SA)

Other Instruments

Draft Declaration on the Rightrs of Indigenous Peoples (1993)

ILO Convention 107 (1957)

ILO Convention 169 (1989)

International Covenant on Civil and Political Rights (1967)