Australian Law Reform Commission (ALRC) --- "The Recognition of Aboriginal Customary Laws [Volume 2]" [1986] IndigLRes 2

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VOLUME 2
The Law Reform Commission
Report No 31

The Law Reform Commission is established by section 5 of the Law Reform Commission Act 1973 for the purpose of promoting the review, modernisation and simplification of the law. The Chairman and first Members were appointed in 1975. The offices of the Commission are at 99 Elizabeth Street, Sydney, NSW, Australia (Tel 02 231 1733), and Royal Insurance Building London Circuit Canberra City, ACT, Australia (Tel 062 47 2166).

Publications of the Law Reform Commission
Reports
ALRC I Complaints Against Police, 1975
ALRC 2 Criminal Investigation, 1975
ALRC 3 Annual Report 1975
ALRC 4 Alcohol, Drugs and Driving, 1976
ALRC 5 Annual Report 1976
ALRC 6 Insolvency: The Regular Payment of Debts, 1977
ALRC 7 Human Tissue Transplants, 1977
ALRC 8 Annual Report 1977
ALRC 9 Complaints Against Police (Supplementary Report), 1978
ALRC l0 Annual Report 1978
ALRC 11 Unfair Publication' Defamation and Privacy, 1979
ALRC 12 Privacy and the Census, 1979
ALRC 13 Annual Report 1979
ALRC 14 Lands Acquisition and Compensation, 1980
ALRC 15 Sentencing of Federal Offenders, 1980
ALRC 16 Insurance Agents and Brokers, 1980
ALRC 17 Annual Report, 1980
ALRC 18 Child Welfare, 1981
ALRC 19 Annual Report, 1981
ALRC 20 Insurance Contracts, 1982
ALRC 21 Annual Report, 1982
ALRC 22 Privacy, 1983
ALRC 23 Annual Report, 1983
ALRC 24 Foreign State Immunity, 1984
ALRC 25 Annual Report, 1984
ALRC 26 Evidence, 1985
ALRC 27 Standing in Public Interest Litigation, 1985
ALRC 28 Community Law Reform for the Australian Capital Territory: First Report, 1985
ALRC 29 Annual Report, 1985
ALRC 30 Domestic Violence, 1986
Issues Papers
IP I Statutory Brain Death, 1977
IP 2 Insurance Contracts, 1977
IP 3 Evidence, 1980
IP 4 Contempt of Court, 1984
IP 5 Service and Execution of Process, 1984
IP 6 General Insolvency Inquiry
Discussion Papers
DP 1 Defamation - Options for Reform, 1977
DP 2 Privacy and Publication - Proposals for Protection, 1977
DP 3 Defamation and Publication Privacy - a Draft Uniform Bill, 1977
DP 4 Access to the Courts - I Standing: Public Interest Suits, 1978
DP 5 Lands Acquisition Law: Reform Proposals, 1978
DP 6 Debt Recovery and Insolvency, 1978
DP 7 Insurance Contracts, 1978
DP 8 Privacy and the Census, 1979
DP 9 Child Welfare - Children in Trouble, 1979
DP 10 Sentencing: Reform Options, 1979
DP 11 Access to the Courts - II Class Actions, 1979
DP 12 Child Welfare: Child Abuse and Day Care, 1980
DP 13 Privacy and Intrusions, 1980
DP 14 Privacy and Personal Information, 1980
DP 15 Sentencing of Federal Offenders, 1980.
DP 16 Reform of Evidence Law, 1980
DP 17 Aboriginal Customary Law - Recognition 1980
DP 18 Aboriginal Customary Law - Marriage, Children and the Distribution of Property, 1982
DP 19 Foreign State Immunity, 1983
DP 20 Aboriginal Customary Law - The Criminal Law, Evidence and Procedure, 1984
DP 21 Admiralty Jurisdiction, 1984
DP 22 Matrimonial Property Law, 1985
DP 23 Evidence Law Reform Stage 2, 1985
DP 24 Contempt and Family Law, 1985
DP 25 Criminal Records, 1986
DP 26 Contempt and the Media, 1986
DP 27 Contempt: Disruption, Disobedience and Deliberate Interference, 1986
Digest
The Law Reform Digest 1910-1980, 1983
The Law Reform Digest 1981-1985, 1985
Periodicals
Reform (Quarterly)

This Report reflects the law as at 1 December 1985

NOTE

Subsequent Developments

Since December 1985 the following matters of significance have taken place at the federal level. They affect the discussion in the paragraphs indicated.

1. The decision of the Full Federal Court in Attorney-General for the Northern Territory v Maurice & Ors in the matter of the Warumungu Land Claim; Aboriginal Sacred Sites Protection Authority v Maurice & Ors, unreported, Full Federal Court (Bowen C J, Woodward and Toohey J J) 27 March 1986 [para 651,657-61].

2. The announcement by the Hon Clyde Holding, Minister for Aboriginal Affairs that the Government had abandoned its previously announced proposals for national land rights legislation. Parl Debs (H & R) (18 March 1986) 1475 [para 212].

4. The Protection of Movable Cultural Heritage Act 1986 (Cth) was passed in May 1986. It provides for the control of the export and import of objects of Australia's cultural heritage, including objects relating to Aborigines and Torres Strait Islanders. Parl Debs (H & R) (5 May 1986) 3058. [para 78, 213, 467-70].

5. The Zoning Plans for the Great Barrier Reef Marine Park - Far Northern Section came into effect on 1 February 1986 Government Gazette, $G 25/86, (31 January 1986). [para 949-50, 992-3].

6. New guidelines outlining the Federal Government's prosecution policy were published in January 1986. Prosecution Policy of the Commonwealth, AGPS, Canberra 1986. [para 472].

May 1986

678. Background to the Terms of Reference
As well as requiring the Commission to consider whether and in what manner Aboriginal customary laws and practices should be applied to Aborigines in civil or criminal cases before the ordinary courts, the Commission's Terms of Reference require it to consider:

to what extent Aboriginal communities should have the power to apply their customary law and practices in the punishment and rehabilitation of Aborigines.

This question was to a large extent impelled by representations made by the Yirrkala Community Council to the Council for Aboriginal Affairs in 1975. [1] Aboriginal leaders from Ngukurr, Groote Eylandt and Yirrkala appealed to the Council for assistance on how to reduce the problems resulting from the easy availability of alcohol in their communities. The Council agreed with the proposals made by the Aboriginal leaders, which were aimed to improve conditions which were largely beyond their control. Their Report stated:

The Leadership Council makes some very practical suggestions for (a) more responsible conduct by and supervision of supplies of liquor, and (b) a system of restraint, control and, if necessary, punishment of drunken offenders by Aboriginal authorities backed by European law. The Council for Aboriginal Affairs was impressed by the suggestions and, in general, commends them. In brief, the leaders advocate four measures.

1. the appointment of uniformed Aboriginal orderlies with power to arrest and confine drunken Aborigines until sober or charged with an offence;

2. a working agreement with the Northern Territory Police that, when practicable the arrest, and in all circumstances the custody of arrested Aborigines, will be matters for the Aboriginal orderlies;

3. an agreement with the appropriate Northern Territory authorities that charges against Aborigines will be heard by a court sitting at Yirrkala, with Aborigines assisting the judge or magistrate as assessors or as Justices of the Peace, and always with legal representation of the persons charged;

4. the recognition by Australian law of the legal authority of the Council of Leadership and the orderlies. [2]

Requests from Yirrkala, and from other communities looking for ways to solve local order problems were thus an initial catalyst for the Reference:

This reference was given to the Commission in response to requests by many Aboriginal communities in the north for help in handling law and order problems in their communities and for recognition of the problems they face in adapting their traditional forms of social control to their contemporary situation. I believe that this kind of initiative by Aboriginal people typifies the quite revolutionary changes that have occurred in Aboriginal life in the past decade. [3]

679. 'Law and Order' in Aboriginal Communities.
In addressing the second aspect of the Terms of Reference, broader questions of law and order in Aboriginal communities arise, including the ways in which different communities deal with, or would like to deal with law and order problems. An Aborigine may commit an offence against the general criminal law which may be categorised as 'non-customary' but which may be very disruptive of community life, with the result that members of his community would like some say in the way in which the offender is dealt with. Some offences may breach both the general criminal law and Aboriginal customary laws. Or an 'offence' may be entirely customary, in which case communities may consider it is within their jurisdiction to deal with it - a view that may not be shared by the general legal authorities. Some Aboriginal communities have sought Commonwealth or State legislation to give them power to make rules for the community and to deal with persons who break such rules, while others have sought the enactment of customary laws enforceable in the general legal system. [4]

680. Outline of this Part.
While the Commission's Terms of Reference refer only to the possibility of 'Aboriginal communities being given the power to apply their customary laws and practices', what underlies this aspect of the Terms of Reference is the broader question of autonomy for Aboriginal communities in law and order matters. Accordingly, this Part of the Report will consider a broad spectrum of issues and proposals. This Chapter will consider the general principles underlying justice mechanisms for Aboriginal communities. For convenience, the term 'justice mechanism' has been adopted in this Report to cover generally the various forms or structures of dispute resolution which operate or could operate within Aboriginal groups. [5] Chapters 28 and 29 describe existing dispute-resolving mechanisms, in Aboriginal communities. Chapter 30 considers the relevant overseas experience. Chapter 31 considers what mechanisms may be applied in Australia, and ways of implementing them in accordance with the wishes of particular Aboriginal communities concerned. Finally, Chapter 32 discusses the role of the police, and the policing of Aboriginal communities by means other than the regular police force.

681. Some General Developments.
Any examination of this aspect of the Commission's Terms of Reference needs to take into account the background of continuing experiments with forms of 'justice mechanisms' other than the ordinary courts, and with procedural and other changes to the ordinary courts. The reasons for this have included the need to reduce the complexity and formality of present legal procedures, to encourage (e.g. through mediation) negotiated rather than adjudicated settlements, and thereby to reduce to some extent the increasing costs and delays of ordinary litigation. It is important to be aware of these developments for a number of reasons:

It is not possible in this chapter to give anything like a full account of the various justice models which have been suggested or tried, in Australia or elsewhere. [7] Australian developments have included:

682. Community Justice Centres (NS W).
Perhaps the most interesting example for present purposes is the experiment with Community Justice Centres under the Community Justice Centres (Pilot Project) Act 1980 (NSW). Three such centres were established as part of a pilot project in 1980. Their functions were to mediate in 'neighbourhood' disputes brought to them by private parties, and to assist such parties in reaching an agreed settlement of their dispute. The Centres had no power to compel attendance, and it was specified that agreements reached through mediation sessions, though recorded in writing, were not legally enforceable. [14] Mediators were chosen from members of the general public and given a limited degree of training. [15] A careful review of the Pilot Project was conducted under the auspices of the Law Foundation of New South Wales, which reached broadly favourable conclusions. The resulting recommendation, that the Project be continued and extended, has been accepted. But the Law Foundation Report's conclusions emphasise the rather limited character of the Project's aims:

The CJCs adopted a 'service' model of informal dispute resolution which was appropriate for cases of this kind - informal, accessible, confidential, non-coercive, and chiefly concerned to meet the needs of individual parties. For such reasons the researchers concluded that the New South Wales centres were not in practice vulnerable to certain criticisms from time to time made of informal dispute resolution programmes in the USA; it could not reasonably be said, for example, that they represented a dangerous aggrandisement of State power or that they sought to provide a form of 'second-class justice' for disadvantaged people... The researchers saw much of the strength of the pilot scheme as lying in its being quite separate from and operating quite differently from legal institutions. [16]

The Law Foundation Report points out the strong emphasis the Project placed upon the needs of ethnic minorities (i.e. migrants) [17], but makes no mention of Aborigines as participants in disputes mediated by a Community Justice Centre. The Commission was informed by the Director of the Surry Hills Community Justice Centre (which, because of its location, is the one which is the most likely to have had contact with Aboriginal parties) that the Centre had had relatively little impact on Aboriginal disputes in the neighbourhood, although it had dealt with the occasional dispute between an Aboriginal and a non-Aboriginal person. [18] The Director commented that, apart from the obvious need for .Aboriginal mediators, some review of the Centres' administrative arrangements would be desirable in dealing with inter-Aboriginal disputes. For example mediation sessions might be better conducted elsewhere than at a Centre (e.g. at the office of the Aboriginal Legal Service). With such modifications it is possible that the Centres could be of greater value to Aborigines in the settlement of disputes. [19]

Justice Mechanisms in Aboriginal Communities: Needs, Problems and Responses

683. Previous Discussions of these Questions:
Apart from official discussions, the prospects for Aboriginal community justice mechanisms in some form have been discussed by a number of authors, especially over the past ten years. Of earlier discussions the most important were by AP Elkin <hotword "REP31V2 - HW[20]">[20], who strongly supported the establishment of properly constituted native courts, at least on an experimental basis [21] and Justice Kriewaldt, [22] who did not favour the establishment of special courts in minor or major, cases, but did make recommendations for:

there is grave doubt whether, except in cases where only a minimal jurisdiction is given over to an Aboriginal Court or where only police functions but no judicial function are performed by Aboriginals, any new approach to the problem of justice on Aboriginal settlements is possible. [27]

And, after noting difficulties posed by the requirements of minimum standards of justice in the International Covenant on Civil and Political Rights of 1966 [28] he concluded:

The problem is clear: due to logistical and cross-culture problems in the Northern Territory, the criminal justice system is an ineffective and sometimes oppressive, tool in dealing with Aboriginals. One possible solution to these problems is the establishment of tribal courts and tribal police. It would appear, however, that for many separate reasons the best that one could hope for is the adoption of basically 'white courts' onto the settlements which would be staffed by Aboriginals. It should not be assumed that all or any Aboriginal settlements would want to accept or be able to accept this responsibility. [29]

I strongly believe that attempts should be made to pass over more responsibility to Aborigines in relation to the whole legal process, whether tribal law is involved or not. For this reason I favour the creation of special courts staffed by Aborigines. [A] United Nations study of Equality in the Administration of Justice... recognises that separate systems of courts for specific ethnic groups may be 'concessions to traditional tribal patterns or types of temporary legitimate protection of minorities' and thus need not necessarily be regarded as discriminatory (though others may be discriminatory in effect). This non-discriminatory ideal should be regarded as the policy underlying any creation of special courts for Aborigines and specific provisions should be tested by reference to it. Aboriginal communities should be consulted before detailed legislation is framed. Intensive study of overseas experience with plural systems of law is also needed, so that the best model may be adopted and the most serious problems be avoided... Even if authority over law and order is transferred to Aboriginal communities it is probable that their powers would be limited. Their jurisdiction might only extend to minor crimes leaving homicides to be dealt with by the ordinary courts. The ordinary courts should then be encouraged to give more recognition to tribal law and better means of finding out the actual beliefs of the Aboriginal people than at present exist should be devised. The official recognition of tribal law, as proposed, would not only solve some practical difficulties but would be tangible recognition by white society of the value of Aboriginal culture. [31]

Earlier she had suggested, as one possibility, that legislation provide for Aboriginal courts to be established as required, and

that such courts should only be staffed by persons with certain qualifications and that procedure should be different from that of ordinary courts. There would be no practical difficulty about such requirements. Practical difficulties would arise only if the requirements were unreasonable, including matters like separate court buildings and special staff who had no other employment. [32]

It would be unrealistic to paint a sanguine view of the possibility of indigenous courts, for the difficulties seem overwhelming. Foremost among these is the question of whether in fact such a system would make use of the existing practices and traditions of the people or whether this scheme is merely another imposition created by an idealised perception of Aborigines on the part of the Europeans. [34]

On the other hand the example of the PNG Village Courts (then just introduced) was seen helpful as: 'it would seem that such a system of limited jurisdiction maybe both acceptable and suitable in Australia and should be given careful consideration'. [35] They concluded:

This litany of problems of tribal courts is indeed depressing but should not be overwhelming. It is submitted that despite these difficulties the idea of indigenous courts has much merit and that rather than being dispirited by experience elsewhere, Australia should learn from the errors and develop a system of courts based on Australian needs in the latter half of the twentieth century. [36]

differing needs of different indigenous communities may require a range of jurisdictions to meet the requirements of native justice. Thus, isolated traditional Aboriginal communities may require a customary law jurisdiction, while fringe-dwelling acculturated communities may require a local government by-law scheme. This question of variability, both as to indigenous legal needs and realistic federal government response, is a central question facing Australian reformers. [39]

There were, in his view, many other difficulties in the way of any 'separate Aboriginal customary law jurisdiction' in Australia: these included 'complexity, uncertainty, confusion, and resulting cost' [40] and the political reality that Australian governments are no more likely than American ones 'to vest [substantial] penalty powers in indigenous communities'. [41] While accepting that 'no universal justice mechanism panacea ... can be offered', [42] he suggested that increasing governmental control, whether over existing or new justice systems, not accompanied by a more basic system of separate self-government, would be mistaken. [43] In his view:

amongst Australia's traditional Aboriginals ... native justice is more likely to be achieved though maximising the use of existing customary law ways, and encouraging their development. [44]

The inference is that such encouragement should be indirect, rather than through outside involvement in the establishment of formal machinery, although no specific measures were suggested.

684. No Solutions Proposed.
Discussion of these issues in the literature so far gives a much better guide to the difficulties in the way of the establishment or support of Aboriginal community justice mechanisms than it does to the possibilities and potential solutions. The question is whether various responses, legal and administrative, to the problem suggest possibilities for further action.

685. Legal and Administrative Responses.
Partly as a result of Aboriginal views and demands, and partly out of growing dissatisfaction with the existing summary criminal process as it involves Aborigines, a number of legal and administrative responses have been made or attempted, although in many cases these have taken the form of calls for further study or examination of the issues. Important examples in more recent times include the following: [45]

Hawkins and Misner (1973-4). In three reports commissioned by the Commonwealth Minister for the Northern Territory, GJ Hawkins and RL Misner made a series of recommendations for changes in the criminal justice system in the Northern Territory. [46] Two of these reports discussed problems of the administration of justice in Aboriginal communities. The First Report stated only that:

Punishment, to be effective, must be prompt, fair and in response to acts which the community deems to be offensive. Considering the vast distances between outlying districts and the courts and also considering the different cultural patterns between a settlement and an urban centre, the distribution of justice in the Northern Territory must be decentralised so that local groups will be better able to deal with their own affairs. Elected councils on the settlements and missions should be able to deal with the 'street offences' now contained in the social welfare regulations. All persons on the settlement or mission, European or Aboriginal, would be subject to the council's jurisdiction, An appeal should be allowed from the council to the magistrate and for this purpose an additional magistrate will be necessary in order to visit the settlements on a regular basis. A further study would be necessary in order to outline appropriate procedures for conducting and recording the council's proceedings. Also it must be determined at a later time whether each settlement should have a lock-up and a person to serve as a gaoler. It is envisioned that punishment may take other forms than traditional imprisonment, e.g. community work projects. [47]

These issues were discussed in greater detail in the Third Report. [48] This did not attempt to make any specific or detailed proposals, other than that the matter be subject to an 'immediate review by an inter-disciplinary body which would conduct an extensive full-time inquiry into this extremely complex issue' [49] After discussing jurisdictional and other problems and some of the training and other support that would be required for any effective scheme, the Report concluded:

It would be naive to assume that the tribal justice programs can be put into effect overnight. In fact any hastily constructed program may be harmful. But this should not be used as an excuse to delay the search for answers. A highly qualified inter-disciplinary team should be immediately formed to seek solutions to the problem of justice on Aboriginal settlements... It should not be assumed that a system of tribal courts is necessarily practical, beneficial or desirable. The real challenge is to begin seriously considering the possibility. [50]

While these developments are commendable, they are piecemeal in character, concentrating on specific difficulties rather than the overall effect of the imposition of European law on tribal Aboriginals. In our view the basic problems can be attacked only if an attempt is made to restore and maintain the traditional authority of tribal Aboriginals so that, to the maximum extent possible, European law is applied in tribal areas only at the request of the tribal community. [52]

After giving as examples the Papua New Guinea Village Courts and the former Western Australian Courts of Native Affairs [53] the Report pointed out that:

One major difficulty in implementing our proposal in Australia lies in ascertaining the source of legitimate tribal authority. It is not fully clear who has authority over whom ... nor whether such authority as exists is legitimate in all circumstances. It has been suggested, for example, that those in authority do not have legitimate power unless they are on their own tribal lands. Moreover, it is not certain when the traditional sources of authority would regard themselves as obliged to refer offenders to the ordinary courts. These issues will require intensive discussion with tribal groups in order to formulate proposals for restoration of tribal authority. Other difficulties arise, including the precise definition of the jurisdiction to be conferred on Aboriginal communities and the formulation of principles to govern problems of 'conflicts of laws'. We think that these questions should be investigated as soon as possible. [54]

House of Representatives Standing Committee on Aboriginal Affairs, Report on Aboriginal Legal Aid (1980). [58] As part of its Report the Standing Committee discussed a number of issues relevant to the Aboriginal Customary Law Reference, including Aboriginal police aides, [59] the problem of representation of community views to sentencing courts [60] and the recognition of Aboriginal customary laws. [61] The Committee canvassed the various possibilities for, and difficulties with, recognition without attempting to reach any definite conclusion. Noting that the issues were being examined by this Commission, the Standing Committee commented that:

If Aboriginal customary law is applied in cases involving offences against Aboriginal communities which are also offences against Australian law, the division of jurisdiction between the two systems will be significant. At the present time there is no recognition of traditional punishment as a valid punishment to be applied by existing courts dealing with criminal charges against Aboriginals. Australian courts cannot impose penalties which are repugnant to natural justice or morality or which are in conflict with any other laws ... By allowing Aboriginal communities to apply customary law, there is a danger of subjecting an Aboriginal offender to the tyranny of the group. There is the problem that, in many respects, the adoption of a policy of non-interference by legal authorities in communities regulated by customary law and practices carries with it an abrogation of responsibility for the protection of the rights of the individual. [62]

would appear to preclude Australian courts from applying tribal sanctions in the punishment of serious offenders and probably confine Aboriginal communities to dealing with minor offences in the summary jurisdiction. [63]

One aspect of the inquiry is an investigation into the possible operation of community justice systems in Aboriginal communities. The Committee is aware of the difficulties of such systems operating in town camping communities where there is close contact with the non-Aboriginal community and where the operation of customary law is not as strong as in traditional communities. The concepts being developed by the Commission of a conciliation panel to resolve internal disputes and the operation of internal policing in discrete town camping communities should be fully investigated. Such concepts, if introduced, would recognise and reinforce existing structures in town camps for resolving disputes and could have a significant impact in reducing the level of crime in the communities. [65]

The Standing Committee accordingly recommended that the Commission 'fully investigate the operation of community justice systems in town camping communities'. [66]

The Task Force takes the view that the Aboriginal communities on Groote Eylandt are not seeking separate and independent justice mechanisms... [W]hat they are seeking is a better working relationship with all agencies of the criminal justice system with some modifications of the rules and procedures. [69]

To this end the Report recommended greater community involvement in the court process, the appointment of an Aboriginal justice of the peace, the appointment of police aides, the introduction of, a community service order program and that the Aboriginal Community Justice Program operating at Galiwin'ku be applied to Groote Eylandt. It also recommended that:

The Australian Law Reform Commission be requested to undertake an investigation into the incorporation of Groote Eylandt Customary Laws within the judicial system presently operating in Groote Eylandt in close consultation with the leaders of the Aboriginal Communities. [70]

686. Aboriginal Views.
An essential pre-requisite to any consideration of justice mechanisms for Aboriginal communities is to ensure that the wider community is not simply foisting its own perception of 'the problems', and its own solutions, upon Aborigines affected. It is necessary to be clear about the needs and purposes that machinery is intended to meet, and to be reasonably confident that the machinery is sought by those to whom it will apply. In fact the Commission has met with a wide range of responses and views on these central issues.

The Pitjantjatjara are determined to keep their customary methods for dealing with disputes in the traditional mode, and concede that 'serious' offences should be dealt with by the conventional South Australian legal system. [71]

There is however an area of uncertainty between the two, and it is here that many conflicts between two competing legal systems arise. Some groups will deal with matters even though they know the police are also involved. Others may be reluctant to become involved in such cases. Many seek further powers to deal with their own problems but accept that this needs to be sanctioned by the general legal system. This was clearly expressed in a submission to the Commission by the Council President on behalf of the Peppimenarti Community (NT):

As a general principle, we want Aboriginal law to rule on Aboriginal land, and to some extent to rule Aboriginals outside Aboriginal land. For example, we would like to have the power to take our own people away from towns and hotels (if they are getting drunk or into trouble) back to our own community. Or if a young fellow steals a car, or makes trouble, we want to be able to take them back to our own system of law. We want to keep traditional punishments ... We feel that gaol sentences in white man's system do not solve many problems .... If a marriage is illegal by our law (e.g. too close relatives) we want the power to stop or annul that marriage... Illegal marriages of our people in white man's churches and towns, has caused deep trouble in our system of families and relatives. We MUST STOP this before more damage is done. Motor registration, insurance, drivers licences, worker's compensation etc. we think should all stay the same as they are. [72]

Implicit in these statements is a request for the two systems to work together, with the Aboriginal voice being heard, and responded to, by the general legal system on issues of particular concern.

We feel it is fair that while people living on or visiting Aboriginal lands or settlements should be subject to Aboriginal laws and punishments if they make trouble. However, in all cases, we want the option to send an offender through the white man's law system. There are no white police on our settlement. We do not need them here all the time. We only want the option to call them in when we think it necessary. [73]

Many communities already exercise such powers on a de facto basis. Whether they can or should be formalised to any greater extent is another question.

I think it [spearing] is the only way to stop young men or any other person of any age ... In the olden days that used to check the trouble ... but in this day and age they think 'well white fellow laws say you can't spear me, you can't hurt me, so if I want to sue you I can sue you'. That is the reason why we wan! it to be recognised as such and the elders to hand out punishment if they think it is needful. [74]

This view was presented to the Commission on several occasions during its Public Hearings. [75]

We are quite satisfied with our 'court' system - which is a meeting of elders. No punishment is meted out without discussion and the offender is given the opportunity to defend himself. [76]

687. Diffuse and Wide-Ranging Problems
These responses are clearly not limited to the question of the application of Aboriginal customary laws but address wider issues of law and order and the interaction of Aborigines with the general legal system. It is evident that the questions posed for the Commission by the second limb of its Terms of Reference must be considered against a background of:

∗ better control of law and order problems, in the light of the defects of existing structures for social control;

∗ reduction in the number of Aborigines coming into contact with the criminal justice system;

At the same time it is necessary to keep very clear what role the Commission can play in this area, in the light of constitutional and administrative constraints, and of its Terms of Reference. The constitutional limitations imposed by Chapter III of the Commonwealth Constitution, and the administrative problems of direct Commonwealth involvement in local justice mechanisms are not arguments against appropriate reforms. They are in the nature of external constraints on direct Commonwealth action and are referred to in more detail elsewhere. [77]

688. The Terms of Reference: Conflicting Interpretations.
The second question asked of the Commission is:

to what extent Aboriginal communities should have the power to apply their customary law and practices in the punishment and rehabilitation of Aborigines.

It is not clear whether the second question posed by the Reference is to be restricted to the punishment and rehabilitation of Aborigines in respect of offences against the general law, or whether it also encompasses punishment and rehabilitation of Aborigines only for offences against Aboriginal customary laws (whether or not such offences are also offences against the general law). There are difficulties on either assumption. On the first interpretation, there is the problem that the offence may not be recognised as a wrong under Aboriginal customary laws, or may be regarded in a very different light. This raises questions of the relationship between the general criminal law and its administration, and Aboriginal customary laws and practices, which are discussed in Part IV. In part these questions involve the 'delegation' of the power to punish for offences defined other than in Aboriginal terms. In part they involve the mitigation of general law offences to take customary laws into account (e.g. through criminal defences of various kinds or in sentencing). As Chapters 18 and 21 conclude, there may be value in at least some of these forms of recognition, but they are limited in character and indirect in any effect they may have in supporting or restoring Aboriginal authority. On the second interpretation, that is, that the power of Aboriginal communities extends not only to punish or rehabilitate the offender but, through the application of local customary laws, to define the offence, a considerably greater degree of local control seems to be envisaged. But the assumption seems to be that this control is to be limited to those rules and sanctions properly regarded as 'customary' (as it is certainly to be limited to Aboriginal defendants). This is a very modified form of control, no matter how flexible the definition of 'customary law and practices'. As soon as one talks about the establishment of justice mechanisms in some official way (e.g. Aboriginal courts) in Aboriginal communities, this inevitably raises the idea of formal mechanisms of a 'non-customary' kind. [78] It is almost a contradiction in terms to talk of setting up an official mechanism in an Aboriginal community to apply customary laws. It would be equally inconsistent to confer 'autonomy' on such communities on condition that it was only exercised in a certain, recognisably 'customary', way. Considering the range of new problems these communities face, this would be no autonomy at all.

689. Local Self-Determination.

It is by no means clear that Aborigines would wish to take responsibility for all law and order problems occurring within their communities. It cannot be assumed that many offences with which Aborigines are commonly charged would somehow diminish or disappear if 'customary processes' were applied. To apply Aboriginal customary laws in this way may be simply misconceived. But there is an even more fundamental question. If Aboriginal communities are to be given power to apply their customary laws and practices (whether defined broadly or narrowly), is this being done in order to return to Aborigines greater control over their daily affairs, or is it rather an attempt to divest the general legal system of a problem it has been unable to resolve? Care is required to ensure that under the guise of saying 'these are matters for Aborigines to resolve', the shortcomings of the general legal system as it applies to Aborigines are not foisted onto Aboriginal communities. They may have neither the inclination nor the resources to take on this task. The primary answer is, no doubt, that nothing can be done without the general agreement of those Aborigines affected by a proposal. This is likely to mean that there will be no uniform response. Some Aboriginal communities may seek to apply their customary laws, or may seek even broader powers, to control law and order within their communities. Other communities may merely seek greater understanding between the two legal systems and control over the manner and level of policing. How, then, is it possible to accommodate this broad range of likely responses? These issues were discussed for example, by Dr von Sturmer, who referred to the 'common notion"

that Aboriginal 'mechanisms' (customary law, traditional decision-making procedures, etc.) should be extended to treat the whole new body of substantive matters with which they now have to deal. It is certainly demonstrable that the Aboriginal mechanisms alluded to continue to exist. Indeed, unless those people who are willing, for whatever reason, to foist new ways of doing things on Aboriginal societies, are also prepared to come to grips with the ways in which things are already done, their 'interventions' are doomed to failure. But it is a far cry from arguing this to accepting that the 'mechanisms' can be 'extended' in new conditions to meet what, in departmental jargon, are often described as 'the new challenges'. Not only do the exact nature of the 'mechanisms' and the precise range of the matters over which they 'play' remain to be identified, it is also palpably the case that the 'mechanisms' do not 'engage' the whole new array of matters which flow from the contact situation. [79]

690. Underlying Difficulties.

The history of 'recognition of indigenous law', of recognising some indigenous capacity over law and order matters, in Australia and in other comparable jurisdictions, has largely been one of trying to establish formal 'courts' or other similar mechanisms, usually run by the indigenous people, to which authority could be transferred or which could be recognised. But if the aim is only to recognise local customary laws, then (in societies lacking courts or similar agencies and relying on less formal, less centralised procedures based on kinship and locally-recognised power) attempts to 'find' or 'erect' official machinery are misconceived.

Such attempts might have some value if the aim were to 'indigenise' the existing criminal justice system, that is, to recruit Aborigines to perform some or all of the tasks of law-applying and law-enforcement as part of the general legal system. Equally, it would have some value if the aim were to confer a degree of autonomy on Aboriginal groups with respect to law and order matters. These last two aims are not necessarily consistent with each other. If 'indigenisation' were the aim then the existing legislative structure would be taken for granted, with emphasis being placed instead on finding suitable roles (new, existing or modified) which Aborigines may fill within it. If autonomy were the aim, then the focus would be on the scope of autonomy and on identifying the relevant unit of government. Such an exercise, even if thought desirable by outsiders could not occur without the active support and initiative of the Aboriginal group concerned, and need not lead to the 'recognition' or 'application' of customary laws (though it may do so). Aboriginal groups may be more concerned with the kind of rules applied within their group, or with their administration and policing, than with their application by 'courts'. They would be at least as likely to propose new or hybrid solutions to their problems at the legislative or executive levels as to propose customary ones, in particular since many of these problems are perceived as new or introduced, and not necessarily to be .resolved through the application of customary laws even in some modified form.

691. Approaches for the Commission.

Clearly there are a number of different approaches in the field of 'law and order' in Aboriginal communities which might be taken. These include:

The difficulty is that the Terms of Reference appear only to envisage the first of these approaches, while in Australia and some other countries all or most of the emphasis has been on the third and fourth. Aboriginal groups would probably emphasise the second. These questions will be returned to in Chapter 31. But whatever restrictions the Terms of Reference may impose on the recommendations or proposals the Commission can make, it is undesirable to consider the first approach in isolation from the others. The following Chapters of this Part examine what practical models are available for adoption by Aboriginal groups and what changes in practices or procedures might be made to accommodate Aboriginal views and needs.

692. A Range of Mechanisms.
In many, if not all, Aboriginal communities there exist methods for social control and the resolution of disputes. Their effectiveness and the ways in which they operate vary. In some localities reliance is placed on the accepted authority of older men and women, and there are long-established procedures. for resolving disputes. These seem to have been affected by the fact of living in or around cities or country towns or otherwise in contact with the Western economy and society. A particular factor has been the intrusion of the general legal system. Although Aboriginal customary laws do not operate in isolation, they have proved remarkably resilient, and able to adapt to changing circumstances. [80] But it should not be assumed that what may seem obvious problems of 'law and order' in Aboriginal communities (e.g. control of alcohol, or petrol sniffing and associated juvenile offending) are regulated by Aboriginal customary laws, or that the attempt to extend the latter's scope to deal with introduced problems is, regarded as desirable by Aborigines themselves.

693. Research on Dispute Resolution.
Little research has been done on Aboriginal dispute resolving mechanisms. Intensive study over an extended period of time would be necessary to gain a clear understanding of ways of resolving disputes, and even then it would be dangerous to generalise or to apply the results of such research to other communities. Nonetheless, it is possible to make some general comments on existing Aboriginal dispute-resolving mechanisms, based on the Commission's discussions and field work and on other available information. [81] Three examples of existing justice mechanisms are set out below as illustrations of the ways in which three different communities, at Edward River (Qld), Yirrkala (NT) and Strelley (WA), function. General implications may not be able to be drawn from these different, widely separated communities. The situation recorded at a particular time will change, and profound changes of various kinds have occurred. But this material is the best available.

694. Background.
Edward River is a remote Aboriginal community, with a population of approximately 350-380, situated on the western side of the Cape York Peninsula. It is 130 kilometres south of the mining town of Weipa and 550 kilometres north-west of Cairns. It was established as a mission of the Anglican Church in 1939 and was run as a mission until relatively recent times. It is an Aboriginal reserve under the Aborigines Act 1971 (Qld) and has an Aboriginal court established under that Act.

695. Dispute Resolution.
Disputes at Edward River, which do not necessarily involve offences against the general legal system, are dealt with in three different ways. More serious offences committed by Aborigines and all offences committed by non-Aborigines are dealt with by the ordinary Queensland court system. These constitute a very small percentage of offences committed by Aborigines. Much more commonly, inter-Aboriginal disputes are dealt with either by the local Aboriginal Court or in accordance with 'old custom' or 'Murri law' [83] methods of resolving disputes. There is much overlap between matters dealt with in the Aboriginal Court and. those matters which would formerly have been resolved in accordance with 'old custom'. For example, the 'old custom' way of resolving disputes could often involve a fight between one Aborigine and another. Each person might then come before the Aboriginal Court charged with assaulting the other, an offence under the Reserve by-laws. The features of these two separate systems of resolving disputes and the interaction between them will be briefly outlined here.

696. 'Old Custom' or 'Murri Law'.
In essence, 'old custom' is the Aboriginal way of resolving disputes at Edward River which arise as a result of transgressions of local rules of behaviour. The Aboriginal court system on the other hand is seen as the 'white man's' way of assessing transgressions and applying punishments to them. [84] 'Old custom' law as it operates at Edward River has an unwritten but well understood code of behaviour or 'right conduct', and there are clear procedures to be followed by these seeking redress for breaches of the code. Common breaches of conduct that would require some form of action include:

697. Responses to 'Wrongs'.
Certain breaches (e.g. breaches of taboo) brought automatic retribution by way of supernatural agencies. However breaches which imposed a responsibility on a person or group of persons to act were likely to have one of three outcomes. First, the aggrieved person may decide to do nothing about it. [86] Secondly a person might seek private redress, which involved a conscious decision not to resolve the matter in public but focussed on retaliation and punishment? [87] Seeking private redress often resulted in long-running disputes, with the effect of exacerbating relations between the disputants. The third way in which a person could seek redress of a breach of the code of behaviour was to have the matter resolved publicly. A dispute that became public was usually resolved to the parties' satisfaction so that the problem with private redress, of long-running feuds and paybacks, did not arise.

Public disputes most commonly eventuated in the omission of kinship duties, in breaches of bestowal expectations and arrangements, in instances of insult or real or threatened injury and occasionally in cases of infidelity, trespass and homicide. [88]

698. Public Dispute Resolution.
As observed by Taylor, this form of resolution has a number of clearly identified stages. Not all disputes necessarily go through each of these, as some may be resolved along the way. But generally a dispute resolution would contain each of six stages:

The Edward River notion of fair play stressed that those who initiated trials-at-arms should come away bearing equal injuries irrespective of the nature of the wrong action that triggered the combat in the first place. [90]

699. Changes to Public Disputing.
Taylor suggests that such public methods of resolving disputes have changed little over the last 40 years, although of course there has been some impact caused by the responses of non-Aboriginal staff and the impact of their views on Aboriginal people. The lay-out of the village and the fact that there are now houses with clearly defined territorial areas attached to them and roads through the community has also had some impact. Public disputes generally occur in the public areas rather than in a person's private yard, and the use of weapons in disputes is still common. In fact the underlying threat of violence is a crucial feature in all public disputing. [91] The role that customary methods of disputing play at Edward River has become more complicated with the more ready availability of alcohol. Alcohol can be involved in 'old custom' disputing but it also has the general effect of increasing tensions between people resulting in fights. It is also the cause of a large number of offences coming before the Aboriginal court.

700. The Aboriginal Court.
The system of Aboriginal courts which operates on reserves in Queensland is set out in more detail in chapter 29. [92] At Edward River an Aboriginal Court, constituted by two or more Aboriginal Justices of the Peace or members of the Aboriginal Council, [93] may hear charges against Aborigines resident on the reserve for breaches of the regulations and by-laws applicable to that reserve. These rules are essentially of a local government kind, but there are also general provisions concerning the conduct and behaviour of Aboriginal residents. New legislation dealing with Aboriginal courts was enacted in 1984, [94] but the courts continue to operate in much the same way. In a sample of cases coming before the Edward River Court Taylor found that 93 people (86 men and 7 women) appeared on a total of 106 charges. The offences committed fell largely into two categories: 41 (38%) of the charges laid were directly associated with verbal or physical assault while 54 (51%) of the charges related either to the importation of alcohol onto the reserve or its consumption there. [95] not all of the first category of cases can be said to have a customary basis certainly a number of them resulted directly from the various stages involved in a public dispute.

In many instances the charges themselves arose out of an evolving and culturally indigenous system of dispute resolution. The true causes of these disputes lay elsewhere and the appearance of people before the court was often times just a coda to a process that perforce had to function independently of the introduced court system. [96]

701. Range of Cases Heard.
Taylor divides the cases coming before the Aboriginal Court into three kinds. There are those cases which involve contravention of the community's by-laws which are essentially of a local government kind e.g. relating to health, hygiene or government property. Secondly, there are those charges which result directly from 'old custom' disputing. Often no charges were brought as a result of a public dispute, either because the matter did not come to the attention of officials or because it was not considered by them as sufficiently serious to justify laying charges. The third type of case involved fights and disturbances following the consumption of alcohol. There was a significant overlap between the second and third categories.

702. Interaction Between 'Old Custom' Disputing and the Aboriginal Court.
The introduction of an Aboriginal court at Edward River in 1965 had an impact on the level of old custom disputing. Aboriginal residents took into account the fact that certain conduct, even if part of 'old custom' dispute resolution, might involve an appearance before the Aboriginal court with, for example, the risk of higher fines for each appearance. Taylor states that the Aboriginal court at Edward River played a totally different role depending on whether one looked at it from the viewpoint of Aborigines or from that of the staff of the Department of Aboriginal and Islander Advancement.

In the view of the Aboriginal residents the court's most important function lay in the avenue it provided for reconciling the consequences of 'old custom' dispute settling with European notions of law and order. Since the legal codes over which the court was empowered to act did not include customary law except for a strongly worded paragraph on sorcery ... the only way Edward River people could obtain redress for breaches of their traditional codes was to engage in old custom disputing. But 'old custom' disputing, as people well knew, evoked negative reactions from the Europeans. Hence the processes of the court provided a way of 'making level with the staff'. The court did more than simply propitiate European sensibilities concerning the incidence of abusive language, threatening behaviour and physical assault. It also helped to control the degree to which individuals sought redress through 'old custom' disputing. [97]

However, it was an important shortcoming that the court did not provide any avenue for certain breaches of Aboriginal codes of conduct to be dealt with. The non-Aboriginal staff had a completely different view of the Aboriginal court and the function it should perform:

In the DAIA view, the Aboriginal court was both a training device intended to give Aborigines experience of the legal processes of the wider Australian community and a means of enforcing behaviour thought to be necessary and desirable in a group that officially was supposed to be assimilating to the way of life of the donor culture. [98]

703. Non-Aboriginal Perceptions of 'Old-Custom' Disputing.
This difference of views has a number of wider implications for Aboriginal people:

When DAIA staff failed to recognise 'old custom' disputing for what it was and instead interpreted it as 'lawless' or 'primitive' behaviour, then every instance of an 'old custom' dispute coming before the Aboriginal Court as a breach of the peace provided verification for a strongly held though unofficial view, namely, that the Edward River people were not yet ready for independence and responsible self-management. While this misperception existed and while no alternative forum was provided for the resolution of 'old custom' disputes, it would seem that Edward River people would never be trusted with the management of their own affairs. [99]

704. Perceptions of Violence.
A further important difference in perception between the Aboriginal members of the community and the white staff related to the attitude to fighting and personal assaults. In Taylor's view most Aborigines did not consider that fighting should be of any concern to the Aboriginal court or to outsiders. It was a way of resolving personal differences, well accepted by all parties. Taylor doubts whether any charges concerning fighting would have been brought if the incident in question had not been drawn to the attention of Europeans in some way. Several fights attended by the Aboriginal police did not result in any charges being brought because no senior non-Aboriginal member of staff was present. [100] The latter, by contrast, took the view that fighting and other disturbances including arguments and bad language threatened the peace and good order of the settlement and therefore should be dealt with by the Aboriginal court. This attitude had brought changes to traditional disputing methods:

In deference to European sensibilities regarding violence they attempted to tone down the level of violence manifested in disputes and created territorial canons to suit the settlements

physical structure and to lessen the likelihood of the non-involved being injured. As well they

accepted the fact that they would have to pay a penalty whenever disputation took a violent

705. Non-Aboriginal Offences.
There was some resentment that what Aboriginal residents perceived as wrong doing by staff could not be dealt with by the Aboriginal court. Even if the Aboriginal court had had jurisdiction over such staff, some of these cases would not have fallen within the jurisdiction of the court, or even constituted a criminal offence. The result was that Aboriginal members of the community tended to seek their own ways of resolving such problems. For example, on the occasions when personal relationships between members of the Aboriginal community and the white staff created tensions, the community was able to exert pressure to have staff removed by notifying senior officials of DAIA or local politicians. In this area of community concern the court was seen as totally inadequate.

706. Summary.
As observed by Taylor, 'old custom' disputing at Edward River is still carried out in much the same way as it was before the mission was established in 1939. Some changes have occurred, under the influence of the staff and also through the operation of the Aboriginal court. Despite these influences the resolution of disputes in a public way is still common. The Aboriginal court as it currently operates hardly provides a mechanism for resolving such disputes, as it contains no provision for airing personal grievances and seeking a satisfactory solution. Public disputing causes concern not only to the staff but also to many Aboriginal members of the community who consider aspects of the disputing process to be unsatisfactory, especially the violence and injuries suffered. There is .for example often criticism by Aborigines of the Aboriginal police for not doing their job properly and preventing fights from occurring, and there is strong feeling over the effect that alcohol is having. The Council at Edward River have never attempted to draft its own by-laws. [102] Several factors account for this, including the lack of available drafting expertise, uncertainty as to whether the Aboriginal court is an appropriate forum, lack of knowledge of the right to propose by-laws and a general over-dependence on the non-Aboriginal DAIA staff. Taylor suggests that it may be possible to prepare by-laws which take account of customary practices, although finding someone to articulate the customs to the satisfaction of both Aboriginal residents and staff might be difficult.

707. Background.
The Yirrkala Community, consisting of a number of clan groups, is situated in North-east Arnhem Land (NT) and is a former mission of the Methodist Church. Yirrkala and it’s outstations have a population of approximately 700-800 Aborigines as well as non-Aboriginal support staff. Until the late 1960s it was an isolated community, but now the modern mining town of Nhulunbuy (pop 4000; established 1972) is within easy reach. Nhulunbuy contains the regional police station and court. Transport to other major centres by air is also readily available.

708. Dispute Resolution Process.
A detailed study of dispute resolution mechanisms at Yirrkala was undertaken by Dr Nancy Williams, based on fieldwork in the late 1960s and early 1970s. [103] The study reveals that the Yirrkala people have a sophisticated and ritualised process of dispute resolution, based on the use of intra-and inter-clan moots. [104] The grievances of the disputants may, and in many cases would, have already been publicly announced or become widely known with such publication normally occurring in one of the following ways:

Once a grievance becomes public in this way it has the status of a dispute and the procedures that need to be adopted to resolve it become important. According to Dr Williams there are 5 basic characteristics of the dispute settlement process at Yirrkala:

An integral feature of this process is the moot, in which the disputants and interested parties are brought together so that the matter may be discussed. All or only some of the five characteristics of dispute resolution may occur within the moot, although it is likely that some preliminary work to gather information will have been done beforehand and that follow-up work will be required afterwards. The moot itself is an organised procedure, and as witnessed by Dr Williams, had four distinct phases:

People address themselves to the specific allegations in the case under consideration. They may mention any other allegations they consider pertinent, and they judge the consequences of alleged acts.

the relationship between modes of disputing and procedures of dispute settlement is clear Brothers-in-law (sisters' husbands) offered restraint as well as exhortation to settle the dispute, and subclan and clan leaders offered to manage the procedures of dispute settlement that would provide a satisfactory outcome. [108]

709. Kin Obligations.
Disputes at Yirrkala covered a wide range of matters, including failure to fulfil obligations to kin, [109] domestic disputes, including disputes both as to existing and prospective marriages and other matters. While breaching contractual obligations is listed by Dr Williams as a primary cause of grievances or disputes, she notes that other causes of dispute were (1) the failure to recognise a person's specific rights over certain women, land, natural resources or ritual objects, (2) breaches of religious restrictions, (3) the failure to carry out sanctions imposed during a previous dispute and (4) allegations of sorcery. [110] In her view, physical assault is not regarded as an offence in itself. Rather it is seen as related to some other underlying issue.

710. Sanctions.
Sanctions imposed in the dispute resolution process have changed over time. There is now greater emphasis on non-physical sanctions although physical sanctions. [111] have not disappeared completely. The likelihood that persons handing out physical punishments may be dealt with under Northern Territory law appears to be at least one - if not the main - reason for this change. The sanctions more readily applied are temporary exile from the community, usually to outstations, restitution, usually by monetary compensation, and temporary removal from employment.

711. Role of the General Legal System.
Aboriginal modes of dispute resolution at Yirrkala continue to be affected by the general legal system, and conflicts occur. However the local people, according to Dr Williams, had developed their own methods of attempting to resolve the jurisdictional issue. by distinguishing between those matters where they expected the general legal systems, to intervene, and those matters they considered they should deal with without such intervention. In this way the authority of the clan leaders within a defined jurisdiction is sought to be maintained. A distinction is drawn between 'little trouble', including 'grievances that arise out of a breach of kin-defined rights or duties'^, [112] and 'big trouble' which refers to situations involving 'physical assault which resulted in serious injury or death and thereby made the act of assault highly visible'. [113]

The consistent conjunction of remarks about big trouble and Australian legal intervention [by Aborigines] indicated that the defining attributes of this category were derived from those acts which Yolngu had observed were most likely to be followed, if they were noticed, by intervention of white Australian authorities. [114]

Intervention by white authorities in other than 'big trouble' as defined was resented because it was regarded as an encroachment on Aboriginal jurisdiction. Generally, the police did not in fact intervene in purely Aboriginal disputes, thus reinforcing the Aboriginal view. The community did however, reserve the right to call in the police when they required their assistance, and this right was perceived by them as an adjunct to their own power.

712. The Current Situation.
Since Dr Williams' fieldwork was done, much has happened at Yirrkala. There are now 16 outstations where up to 250 Aborigines live at different times of the year. But there is still much debate and reflection on achieving better cooperation between what are perceived as two co-existing systems of law there. One result of this ongoing discussion is the so-called Yirrkala proposal, discussed in Chapter 31. [115] But the Commission has been told that the methods of resolution of disputes outlined by Dr Williams continue to operate along much the same lines, [116] although they may now involve smaller family groups rather than larger meetings or 'moots'.

713. Background.
The Strelley Community, [117] comprising 500-600 people, is situated about 40 kilometres inland from Port Hedland (WA) although in recent years there has been a great deal of movement away from Strelley Station so that people are now spread over a number of properties. It is a very self-contained and independent community with strong leadership. No police are stationed there. Strelley has a unique background. The Aboriginal people living there are part of a large group of Aborigines who walked off pastoral properties in the area in 1946. In part the strike was in protest at working conditions and the treatment to which they were subjected, but it was also a protest against the repeal of the Constitution Act 1889 (WA) s 70, which had provided a guarantee of public expenditure on behalf of the colony's Aboriginal population. [118] This walk-out breached a number of Western Australian laws, in particular the Native Welfare Act 1905 (WA), and resulted in a number of persons, Aboriginal and non-Aboriginal, spending time in gaol. More recent events have included various mining ventures and the purchase of a number of pastoral properties. The Strelley Community now runs several pastoral properties which employ approximately half the people living there. [119]

714. Decision-Making and Dispute Resolution.
This struggle for survival has strongly shaped the community's approach to management of its affairs. Decision-making is on a communal basis: decisions are made in regular meetings involving the whole community, with everyone being given the opportunity to participate. Even dissolution of marriages are apparently formalised or settled at community meetings. [120] The resolution of disputes and the hearing of cases involving offences against local law and order are dealt with in this way. It is not clear if the procedures at community meetings are the same for the different matters dealt with. The Commission has been told that meetings to hear evidence against offenders and to consider punishments involve persons present sitting in a large circle in positions according to their skin group and family relationships. The accused persons will sit inside the circle strategically placed according to the position of the accusers and of their own families who may have to speak on their behalf. Certain persons are assigned the role of negotiators. The meeting is highly organised and all attending understand their role.

It is not a free-for-all; it is not a lot of people accusing - the protocol and the structure is

715. 'The Ten-Man Committee'.
In order to deal with law and order problems the community selects what is called the 'ten-man committee'. [122] The committee's function to apprehend and bring wrongdoers before a community meeting. The meeting will then consider the behaviour of the offender and determine an appropriate punishment. The 'tenman committee' cannot, however, act unilaterally:

it cannot go off and act by itself. It must have the agreement of the community. In other words, the Committee does not initiate the action; the community initiates the action. [123]

The jurisdiction of the 'ten-man committee' is not limited to the boundaries of the community. It regularly visits Port Hedland and other localities to apprehend persons. The range of offences for which persons may be picked up and returned to the community are quite broad: some may involve breaches of kin or community obligations but many are alcohol related. Some young persons are picked up because their drinking habits are considered detrimental to their health and welfare. Alcohol is certainly perceived by the people at Strelley as a major destructive factor to Aboriginal people and their culture. [124]

716. Links with the General Legal System.
While the activities of the 'ten-man committee' in Port Hedland or elsewhere have no official sanction from the general legal system, the members of the committee have on occasions been assisted by the local police. The extent of this assistance depends, it seems, on the particular personnel stationed at the Port Hedland police station from time to time. [125] The activities of the 'ten-man committee' and the lack of any formal liaison with the local police can mean that a person will be dealt with under both systems: by the ordinary courts and by the Strelley community. The Commission had discussions at Strelley about the possibility of formalising the role of the 'ten-man committee' in some way, for example, by its members wearing a uniform or badge of some kind. It was suggested that this may improve the police understanding of who they were and what they were doing and perhaps prevent problems resulting from non-recognition. A further difficulty, of course, is the possibility that certain of the actions of the 'ten-man committee' could involve breaches of the law and leave members of the committee liable for prosecution. Some official recognition of their role may, perhaps, prevent this. There was no clearly expressed view of the community members on the desirability of such changes, most implying that because the system worked satisfactorily at present there was no need to change it.

717. Sanctions.
While the Commission has little information on the format of the public meetings held at Strelley it has been told of the following sanctions:

In rare cases physical sanctions are administered ('a little bit of a hiding') but the community apparently does not approve of spearing. [126] On occasions, the community will pay the fine of a person who has come before the Magistrate's court. If this happens the person is regarded as being in debt to the community and may have to perform some community work as a result.

718. Comment.
Information about the processes of decision making and the informal justice mechanisms at Strelley is limited, but it gives some idea of the way in which the attempts are made to resolve problems and to interact with the general legal system. The reality of the broader legal system is accepted and accommodated, but is not regarded by the people as the way in which they would seek to resolve all their problems. In a similar way to Yirrkala, it seems that certain matters are seen as being within the jurisdiction of the general legal system, while others are to be resolved locally.

719. Representativeness of this Experience.
These examples may not be representative of Aboriginal communities around Australia. [127] In some Aboriginal communities new authority structures have been developed, for example, elected community councils. These have a predominantly administrative role and are usually run by younger, school educated Aborigines, but some have come to play an important part in maintaining order and resolving certain kinds of disputes. The role played by a council may depend on the status of the persons elected and the extent to which senior people in the community influence individual council members. It will also depend on the nature of the dispute. It would be more common for matters not related to Aboriginal laws or customs to be dealt with by the elected Council. For example, at Beswick (NT), trouble-makers are barred for set periods of time from the beer canteen by the Council, a decision based on community discussion. The Council determines the penalty and is responsible for ensuring compliance. Council members may also play a role in attempting to 'settle people down' if trouble erupts in the canteen. The Council prefers to play an active role of this kind rather than calling in the police. The Council in consultation with the elders also attempts to resolve other troubles that arise. [128] At Angurugu (NT) the Council unofficially fines individuals for unacceptable behaviour (including interference with Council property) regardless of whether court proceedings take place. In other communities, Councils or individual Council members are regularly involved in mediating disputes. [129] In Central Australia a number of Councils have on occasions requested the Aboriginal Legal Service not to represent individuals charged with offences which are of particular community concern (e.g. 'grog-running' into dry communities). The Legal Services have had little choice except to comply, but this raises difficult issues. On the other hand some communities, in order to distinguish the function of the elected council, have also chosen a tribal council which has primary authority in traditional matters. This has been done, for example, at Yuendumu (NT), Yirrkala (NT), Roper River (NT) and Yungngora Community (Noonkanbah, WA). It appears to be a fairly recent phenomenon.

720. Conclusion.
Whatever form they may take, there is little doubt that in many Aboriginal communities unofficial methods of resolving disputes operate alongside the general legal system. These may work together to resolve problems: at other times, though less frequently, they are in direct conflict. Generally, the customary processes operating do have an important role to play. If disputes and conflicts within Aboriginal communities can be resolved in unofficial ways this should. be encouraged as a preferable alternative to reliance on the general legal system. However these customary processes have their limitations. No longer do they cover the whole range of disputes, conflicts and law and order problems arising within Aboriginal communities, nor do they seek to. The questions whether it is desirable that these customary processes be recognised by the general legal system and whether it is possible to do so, will be considered in Chapter 31.

721. History of 'Aboriginal Courts'.
From time to time, attempts have been made in some States to create special courts for Aborigines. [130] These courts have not used existing Aboriginal authority structures, but have sought to adapt the model provided by the general court system to allow for what was perceived as the special situation of Aborigines. They have not necessarily been intended as concessions to Aboriginal requirements: one reason for their creation may have been the difficulty in obtaining convictions before the ordinary courts, where juries were often reluctant to convict. [131] Aboriginal court systems have often been imposed on Aborigines with little consideration being given to the views or to the effectiveness of their customary mechanisms.

Queensland. Special courts to hear offences committed by Aborigines who were resident on reserves in Queensland were provided for in the Aboriginal Preservation and Protection Act 1939 (Qld). The Act gave extensive powers to the Chief Protector of Aborigines (later the Director of Native Affairs) to deal with offences by Aborigines. Amendments in 1945 extended these powers to include property management, deceased estates and Aboriginal courts, police and gaols. The superintendents of reserves were empowered to constitute a court to hear a wide range of offences committed by Aborigines on reserves. An Aboriginal police force was established, also under the superintendent's control. From 1965 Aboriginal justices of the peace or members of the Aboriginal Council were empowered to constitute the Aboriginal court.

722. The Present Situation.
Both Queensland and Western Australia still have systems of Aboriginal courts. While these operate in different ways, basically they involve the enforcement by Aboriginal personnel of a set of local by-laws. However, many magistrates in different Australian jurisdiction have experimented unofficially with ways of making the court and its procedures more relevant and understandable to Aboriginal people. For example in 1979 in the Northern Territory, Chief Magistrate Galvin introduced modified court procedures when he sat at the Port Keats Aboriginal community. [135] He would arrive at Port Keats a day or two before the court was to sit to familiarise himself with the local scene and to discuss matters generally with the elders. During the court sittings the elders sat with the Magistrate and he would discuss with them the appropriate punishments. This would be done in all but the more serious offences. The Court was conducted with less formality and as a result was apparently well accepted by the elders, and other people at Port Keats, as a genuine attempt to get them involved in the decision-making process and to make the court more comprehensible. [136] Magistrates Grubb and Lewis when sitting in the former North-West of South Australia (now Pitjantjatjara land under the Pitjantjatjara Land Rights Act 1981 (SA)) made it a practice to consult with tribal elders during court proceedings. The elders performed the role of assessors, which included discussion of appropriate penalties. [137] Magistrate Terry Syddall conducted court hearings in a similar way in the Kimberley region of Western Australia during the 1970s. More recently a scheme to get greater community involvement during the court sittings has been set up at Galiwin'ku (NT). [138] However, these responses by magistrates to the needs of Aboriginal defendants and their communities have been very much ad hoc, depending largely on the individual magistrates involved. They have not become entrenched procedures anywhere. This Chapter describes the various special schemes for Aboriginal courts or similar bodies, and the extent to which these have proved successful alternatives to the administration of justice by the ordinary courts.

723. Constitution of the Courts.
Aboriginal courts, presided over by Aboriginal justices of the peace, operate in fourteen Aboriginal trust areas (formerly reserves) throughout Queensland. [139] They have existed in substantially their present form for twenty years. Their operation and scope, as well as that of the reserve system itself, have been the subject of recent review, and new legislation has been enacted. The Community Services (Aborigines) Act 1984 (Qld), which repealed the Aborigines Act 1971 (Qld), seeks to create a new regime for the regulation and control of Aboriginal 'trust areas', [140] including new provisions for the operation of Aboriginal courts. [141] This new legislation was necessary to support the proposal to grant title to Aboriginal reserve land to Local Aboriginal Councils in the form of a deed of grant in trust. [142] The first deeds of grant in trust were made in November 1985 to certain of the Torres Strait Islands. No grants have yet been made to Aboriginal reserve land. Section 42 of the Community Services (Aborigines) Act 1984 (Qld) enables each trust area to have an Aboriginal court, constituted:

(a) by two justices of the peace each of whom being an Aboriginal resident in the area for which the court is constituted and being entitled to sit as a member of the court in a particular case; or

(b) where paragraph (a) cannot be complied with, by the members of the Aboriginal Council established for the area concerned or a majority of them. [143]

724. Jurisdiction.
The court exercises jurisdiction conferred on it by the Act or the community by-laws. [144] Section 43(2) gives specific power to hear and determine:

(a) matters of complaint that are breaches of the by-laws applicable within its area;

(b) disputes concerning matters within its area that are not breaches of the by-laws applicable within its area or of any law of the Commonwealth or the State; and

and [the court] shall exercise that jurisdiction referred to in provision (a) in accordance with

the appropriate by-law having regard to the usages and customs of the community within its area and that jurisdiction referred to in provision (b) in accordance with the usages and customs of the community within its area.

The court thus has a criminal jurisdiction for specified breaches of the Act, regulations and by-laws and a mediation or conciliation role over local 'disputes' where there has-been no breach of the general law. It is required to take into account the usages and customs of the community both in exercising its criminal jurisdiction and in resolving disputes. No longer does an Aboriginal court have the power to hear civil cases involving less than $200, a power which, apparently, was rarely if ever used. All persons, Aboriginal or non-Aboriginal, who are residents of an Aboriginal community come within the jurisdiction of the Aboriginal court. But persons who hold an appointment that requires their residence are specifically excluded: this would include many, if not most, non-Aboriginal. residents. [145] Such persons if they breach the local by-laws are to be dealt with by a Magistrate's Court (s44).

725. Appeals
For the purposes of appeal the decision of an Aboriginal court is to be treated as if it were a decision of a Magistrate's court (s45) so that the ordinary avenues of appeal exist. Under the repealed Aborigines Act 1971 (Qld) there was, in addition, provision for an appeal to be made to a district officer and from his decision to the visiting justice or, alternatively, direct to the visiting justice. Thus the former three avenues of appeal have been replaced by one.

726. Procedure under the New Regulations.
Regulation 23 of the Community Services (Aborigines) Regulations 1985 [146] provides that the procedures for and the enforcement of decisions of an Aboriginal Court shall be the same as for justices of the peace or magistrates under their respective Acts, depending on whether the case would have been heard before justices or a magistrate. This would appear to require Aboriginal courts to operate with a great deal more formality than they have in the past. It is uncertain how this will operate in practice, or how strictly this requirement will be enforced.

727. By-laws.
Section 25 of the Act sets out the functions of Aboriginal councils, which include making by-laws for:

In addition a council may make specific by-laws to regulate the entry and residence of persons within a trust area (s68), and also with respect to a beer canteen (s76). Some councils have drafted or are in the process of drafting by-laws, but none have yet been approved. A draft set of by-laws based on a local government country shire in Queensland has been circulated by the Department of Community Welfare to councils for their consideration. A similar practice was adopted with the present by-laws: the result was the general adoption of a standard set of by-laws with very little local variation. These bylaws have been the subject of much criticism, based on their intrusiveness, paternalism and (in many cases) triviality. [147]

728. Penalties.
A by-law may specify a penalty not exceeding $500 or $50 a day (s25(6)). No longer do Aboriginal courts have the power to order imprisonment for breach of the by-laws. This was put beyond doubt in Adcock v Puttaburra, ex parte Puttaburra, [148] where Justice Kneipp held that the new Act did not authorise an Aboriginal court to impose a term of imprisonment, and that any by-laws kept in force by the new legislation had to be construed accordingly. An Aboriginal court however has the new power to make a fine option order (reg 24). Thus it can order community work to be done in substitution for a fine. [149] The question whether imprisonment may be ordered for fine default is unresolved. An offence against the Act itself is liable to a penalty of $500 or imprisonment for six months. Such offences would not be dealt with by an Aboriginal court unless the Act specifically provides for this (s79). The regulations may provide a penalty for breaches of the regulations not exceeding $200 (s82, reg27). Until councils draft and have approved new by-laws the existing ones remain in force (so far as these are consistent with the Act and regulations). [150] It is clear that the intention behind the new legislation was that Aboriginal courts would continue to operate, but with more limited powers.

729. Effect of the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth).
The operation of the Aboriginal courts has been affected by a number of Commonwealth Acts, the most important being the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth). This Act, the preamble to which states that it was passed for the 'purposes of preventing Discrimination in certain respects against those Peoples [Aborigines and Torres Strait Islanders] under laws of Queensland', overrode the then Queensland legislation in a number of important ways. Its effect was to impose certain limitations on the scope of the Queensland Act, regulations and by-laws with respect to:

It appears that in practice the Commonwealth legislation was largely ignored. In any event its provisions were gradually overtaken by changes brought about by Queensland legislation. One important provision of the Commonwealth legislation which is still applicable, however, is the right to legal representation (s9). The new Queensland legislation does not spell out such a right, and some Aboriginal courts have been reluctant to allow legal representatives to appear. [151]

730. Aboriginal Police.
Section 39 of the Community Services (Aborigines) Act 1984 enables an Aboriginal council, with the Minister's approval, to appoint Aboriginal police and to equip them with a uniform. Under the old Act the Manager, in consultation with the council had the power to appoint Aboriginal police, although there was no requirement to supply uniforms. [152] Aboriginal police have the function of maintaining peace and good order; specified duties may also be conferred on them by by-law (e.g., ambulance services, fire-fighting and emergency services (s40, 41)). The Aboriginal police also play an important role in the operation of the Aboriginal court. They are responsible for bringing offenders before the court, presenting evidence and generally assisting in the running of the court. Some courts rarely call any other evidence, and so nearly all convictions are entirely dependent on the Aboriginal police evidence. [153] Craig, in his study of the Yarrabah reserve near Cairns, comments that at times the Aboriginal police became the de facto court at Yarrabah because when a backlog developed 'they made fewer arrests, set lower bails and allowed people extra time to pay their fines'. [154]

731 Problems of Recruitment and Turnover.
One feature of the Aboriginal police forces on some reserves is the high turnover. [155] Craig stated that at Yarrabah between 1968 and 1976, DAIA hired 108 different persons (predominantly young, unmarried men) a total of 195 times to keep the Aboriginal police positions filled. Fifty-four of these people signed on more than once, including 3 who were policemen on 6 different occasions. There were on average 11 Aboriginal policemen at any one time, but they lasted less than 6 months on the job. Eighty per cent of those who left the Aboriginal police did so by voluntary resignation. [156] Several reasons are suggested for the high turnover. The principal one is the difficulty of fulfilling personal and family obligations which may run counter to the responsibilities of a police officer. As Craig comments:

Being a reserve policeman puts them in the untenable position of having to use authority emanating from the White subsystem to arrest someone like their own uncle. The most common solution to this structural predicament is to call in the White police, but this is not always possible. A policeman is then faced with the choice of upsetting the community order by proceeding with the arrest, or losing face by having to leave the scene with a badge but no prisoner in hand... Most people decide to honor their primary social allegiances and live without the derision that accompanies their job by quitting the force. [157]

The Commission has been told of an Aboriginal policeman working successfully in a community in which he had no relations, but when he returned to his community, he found it impossible to maintain the same impartiality and resigned. [158] But a policy of stationing such police in other communities than these to which they belong is not likely to be successful, given a perceived reluctance by many Aborigines to carry out a policing function, or to live, in other than their home community for long periods of time.

732. Aboriginal Gaols.
Gaols or lock-ups exist on all trust areas but the new legislation contains no provisions covering them. [159] The effect of this is that the local gaols are now the responsibility of the Queensland Police.

733. Visiting Justice.
There is still provision for a 'visiting justice' (s11), usually a local magistrate, who must travel to a trust area at least every three months to:

the whole concept of a visiting justice has overtones of the gaol or other institution in which people are incarcerated against their will, which is to be subject to regular inspections by that functionary. The concept fits uneasily with that of a community of Aboriginal Queenslanders living freely together under their own institutions. [160]

734. The Commission's Field Work.
No extensive study has been done on the operation of the Aboriginal courts in Queensland, and there is very little published information on how they work in practice.

While there are 12 Aboriginal trust areas in Queensland entitled to conduct Aboriginal courts, [161] the number that actually do, and the regularity of court sittings, are unknown. Nor is there any regular statistical information available on offences heard or penalties imposed by the Aboriginal courts. As a result some caution must be exercised in assessing the statistics that are available. It cannot be assumed that these give a clear picture of the situation throughout Queensland. Commission staff visited Aboriginal communities in North Queensland in 1979, 1981 and 1984. [162] During the 1979 and 1984 visits, the Aboriginal courts were seen in operation and court records were examined. The new legislation was in force during the 1984 visit but the old by-laws and regulations still operated. Thus the courts worked very much as they had done in 1979. The following observations are made on the basis of these visits and other information available to the Commission.

735. Range of Offences.
Four offences, all set out in Chapter 4 of the By-laws ('Conduct and Behaviour') are almost exclusively the source for charges in recent years:

The vast majority of offenders were charged with the first two of these offences. For example at Kowanyama Aboriginal Court in June 1984, 173 offenders (some repeat offenders) came before the court. Nearly all the offenders faced charges of being under the influence of alcohol (usually fined $5) and behaving in a disorderly manner (usually fined $10) although in addition there were 17 charges of assault and 11 of gambling. There were 30 pleas of not guilty to one or other of the offences charged. At Edward River Aboriginal Court in June 1984 65 offenders appeared. Of these 17 faced the charge of being under the influence of alcohol, and 44 of disorderly conduct. In contrast to Kowanyama only two faced both charges. Most, probably all, of the disorderly behaviour charges related to alcohol, but two charges were specifically identified as involving damage to property. In these cases restitution of $10 and $80 was ordered to be paid. In addition, 5 persons were charged with breaching the regulations by possessing alcohol in the trust area. All were banned from the beer canteen for three weeks.

736. Appeals.
Appeals are rare. [163] There is general ignorance both of the right of appeal and the procedure required. As well, access to the appellate courts is in most cases difficult. Those communities which are part of a magistrate's court circuit have more ready access but, depending on the timing of the circuit, travel may be necessary. Given the limited penalties the Courts may impose, many regard an appeal as not worth the trouble.

737. Charges Heard, Court Sittings.
There is great variation in the number and regularity of court sittings between the different communities, and also in the number of charges heard. For example at Kowanyama, Yarrabah and Palm Island during 1984 the court sat approximately three days a week and heard approximately 10-30 cases at each sitting. [164] At Edward River the court sits as required, usually twice a week. During the first six months of 1984 the court heard 486 cases. [165] At other communities the courts sit less regularly: at Lockhart River only on Friday afternoons if required, and at Weipa South not even on a weekly basis. [166] Many factors account for these variations, including the significant population differences between the communities, the fact that in some communities the existence and operation of the court has become more institutionalised, differing local attitudes to the effectiveness of the court in resolving disputes and punishing offenders, the presence in particular communities of individuals with. sufficient strength or community acceptance to comprise the court, and the attitude of the executive officer or resident police officers to the operation of the court. [167]

738. Penalties.
While the powers of Aboriginal courts with respect to penalty is strictly circumscribed, [168] there are variations in practice between them. The most common penalty is a fine, but in the larger communities until the end of 1984 the local gaol was still used regularly. In some communities being sentenced to a number of days in the lock-up meant community work in the day-time and spending only nights in the lock-up. To some extent this depended on an offender's willingness to participate. Other communities had no system of community work and offenders spent all their time in the lock-up. [169]

USUAL PENALTIES (AUGUST 1984) [170]

739. Procedure.
Aboriginal courts have tended to develop their own procedures and there is considerable variation. Some courts (e.g. Yarrabah) have relatively formal procedures (including formal presentation of evidence, the administration of an oath to witnesses, etc.); others have little if any organised procedure. But one consistent feature is the absence of legal representation. Although Commonwealth law confers a fight to legal representation, [171] in practice this is discouraged. [172] These informalities can lead to difficulties. For example at Palm Island in a number of cases witnesses who admitted their involvement in a fight leading to a charge against another person of behaving in a disorderly manner were themselves convicted and sentenced, after a brief opportunity to explain their side of the story. [173] The reasons for variations in procedure are not clear, though the role played by the executive officer (formerly manager) and the Queensland police stationed in communities is an important factor. Some Aboriginal courts are largely left to run themselves; others have only in recent years had resident Queensland police. [174] This may change if the new regulations are fully enforced. [175]

740. The Special Situation of Aurukun and Mornington Island.
In 1978 the status of Aurukun and Mornington Island communities was altered from Aboriginal reserve to local government shire. This came about following a dispute involving the Uniting Church (which had been responsible for administration of the communities), the DAIA, and the Queensland and Commonwealth Governments. The Commonwealth Government's reaction was to enact the Aboriginals and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978 (Cth) for the purpose of enabling specified Queensland reserves and communities to control their own affairs independently from Queensland law and administration. The Queensland Parliament retaliated with the Local Government (Aboriginal Lands) Act 1978 (Qld). Later the same year an amending Act was passed abolishing the status of Aurukun and Mornington Island as reserves and making them local government areas subject to the Local Government Act 1936 (Qld). No longer were they subject to the Aborigines Act 1971 (Qld), its regulations or by-laws. Hence the Aboriginal courts ceased to operate, and both communities became subject to the Magistrates Court Act 1921 (Qld) and the Justices Act 1886 (Qld). In consequence the 1978 Commonwealth Act, which by its terms applied only to reserves, did not apply to the two communities. One result of this change of status was that from 1979 Aboriginal justices of the peace have comprised a court and exercised all the powers available to justices, a situation which has created the potential for heavier penalties and greater involvement by the Queensland police than in the Aboriginal courts on reserve or trust land. Aboriginal justices still sit as a court at Aurukun, but justices no longer sit at Mornington Island where all cases are heard by a visiting magistrate. Aurukun thus has a dual system: a local court of justices and the magistrate's court sitting on circuit. The justices court at Aurukun is a court of record so that convictions before the court may be relied on in other courts in Queensland, whereas the records of Aboriginal courts do not have this status. This also means that the sentencing powers of the justices are much greater than in an Aboriginal court. Prosecutions are conducted by the Queensland police and the paperwork involved is the same as other lower courts in Queensland, although the procedures are more flexible and less formal. [176] The courts are restricted to dealing with charges of offences against the general law of Queensland, neither shire having yet managed to get into place local government by-laws. [177] In general an accused person can choose whether to appear before the local Aboriginal justices or the magistrate when on circuit. [178] One interesting innovation at Aurukun is the use of banishment. Offenders are ordered to spend a period of time at one of the outstations and not to come into the community during this time. The Queensland police assist to enforce these orders.

741. More Basic Criticisms.
Criticisms at a number of different levels have been directed at the Queensland Aboriginal court system. At one level there has been criticism of the philosophy underlying the courts and of the effect they are said to have had, and continue to have, on Aborigines collectively and individually. [179] These relate principally to Aboriginal rights to self-determination, and to the effect that the reserve system in Queensland has had on Aboriginal people. At a second level, criticism is directed at the rules and regulations which guide them and the way they operate in practice. The Community Services (Aborigines) Act 1984 (Qld) has attempted to meet some at least of the criticisms at this second level. It remains to be seen to what extent improvements will be made in the actual working of the courts. In any event, more basic criticisms are likely to continue. These include:

742. ‘Second-class' Institutions.
A complaint commonly made about Aboriginal courts is the lack of training provided to the Aboriginal justices and the Aboriginal Police. Justices of the peace are appointed to sit in the court but are given no guidelines, instructions or formal tuition in the job they are expected to perform. [180] One effect of this lack of training is that the Aboriginal justices are unsure of the jurisdiction, procedure or powers of the Aboriginal court. They take their job seriously but are very aware of their shortcomings and are keen to improve their skill, but do not know how to go about it. [181] If it is thought they may have acted in an inappropriate way the executive officer or local Queensland police officer (or, though this is less likely, the Aboriginal council) may intervene to advise them. However, this very much depends on the attitude of the executive officer and the police to the court. The limited powers available to an Aboriginal court also affect its status. A similar problem exists with the Aboriginal police. They have no formal training, although they generally work under the direction of the Queensland police, who may provide some guidance and instruction. Several factors make the present Aboriginal police system unsatisfactory. First, the Aboriginal police are actually employed by the council, which is responsible for hiring and firing. Councils now have specific responsibility for providing uniforms but this is being implemented very unevenly. The lack of a uniform is said to affect the status of the Aboriginal police from both the community and the individual viewpoint. Secondly, family or kin relationship can make it difficult for an Aboriginal policeman to do his job. Thirdly, the relatively small size of most of the Aboriginal communities and the mix of groups from different areas also leads to tensions which make policing difficult. Being an Aboriginal policeman may set a person apart from his friends. A combination of these factors results in a high turnover which makes policing even more difficult. [182] Finally, the limited powers of the Aboriginal police restricts the role they can play and affects their status. But the factors listed above are usually given as justification for imposing such limitations, creating a self-perpetuating image of inferiority.

743. The Lack of Aboriginal Influence or Control.
Another basic criticism directed at the Queensland system is that it was set up, and is in effect run, by the relevant Queensland government department (the Department of Community Services, formerly the Department of Aboriginal and Islander Advancement). To some degree the new legislation overcomes this:

But these changes may be formal rather than real, especially given the history of the courts on reserves. Moreover the question of local control over the courts cannot be divorced from the basic issue of the control exercised by the Department of Community Services under the Community Service (Aborigines) Act 1984. Formally, at least, that Act took some steps towards establishing Aboriginal reserves as local government areas under Queensland law. But the relationship between the powers of Aboriginal councils in trust areas, and the powers of ordinary local government councils in those areas, is confused. [185]Insufficient attention was given to this relationship, and to the appropriate range of local government powers for Aboriginal councils. Until these problems are resolved, the trust areas cannot be regarded as having a proper system of local government.

744. Local Customs and Traditions
The Aboriginal courts do not at present administer any laws which could be regarded as being based on local customs or traditions, though there is a provision prohibiting sorcery (By-law Ch 24.1). [186]However the new legislation provides that:

Again, what these provisions will mean in practice is uncertain, but potentially they allow Aboriginal councils and courts to take Aboriginal 'customs and practices' into account, and indeed to incorporate aspects of them into local by-laws. There was no specific provision for this to occur under the previous regime, although some courts took local customs and practices into account at least as an aspect of the 'local knowledge' which is a prominent feature of the courts in practice. [187] In this context the power to deal with disputes of a general character occurring within the community is an interesting innovation. Some Aboriginal courts were already performing this function, [188] but it is better that it is specifically provided for. [189] Whether such disputes will be brought before the court remains to be seen: this is likely to depend on the degree of acceptance of the court within the community, and the standing and approach of the local justices.

745. Imposition of Alien Structures and Values.
Despite these specific changes, it has been argued that the Aboriginal court system can never operate successfully or effectively:

The Aboriginal court was ineffective primarily because it did not reflect the mores of the local community. The Queensland Government dictated the structure and content of the laws, which stigmatized behaviour that was acceptable to the reserve population under certain conditions e.g., ... swearing in public ... The purpose of this imposition was to teach Aborigines European values and decorum, and to deter behaviour which Whites found offensive. The administration of justice at Yarrabah provided no such deterrence; it just caused economic hardship. [190]

Because the dominant State Government influence over the court and over the rules it applies is exercised indirectly rather than directly, the court 'machinery also gives certain Aborigines great power over other Aborigines...’, [191] and its decisions may thus reflect and support particular local interests or groups at the expense of (unrepresented) others.

746. Should the Courts be Retained?
It is true that Aboriginal courts had no equivalent in traditional societies. But the Aboriginal courts have now been operating in very much their present form for .20 years, and there is some support for them among Aboriginal residents of the trust areas. [192] It is also true that they have in some cases reinforced or established the authority of court officials within the local community in ways which may not be locally acceptable. On the other hand, as Dr von Sturmer pointed out, the courts do work, though 'with certain deficiencies. They do create something of a buffer between the white world and the black world ...'. [193] Some of the particular criticisms made of the Aboriginal courts have diminished since the new Community Services (Aborigines) Act 1984 (Qld) came into effect. Aboriginal councils have been given, formally at least, greater autonomy in drafting their own by-laws which are enforceable in the Aboriginal court (although none are yet in place). This should resolve human rights violations in the old by-laws. The courts now have greater powers to fine and to impose fine option orders (e.g. community work), although they may no longer imprison.

The role played by the Department of Community Services is, apparently, to diminish. The 1984 Act significantly opens up access to the Aboriginal trust areas. No longer are permits required to enter the land. Community Councils are given greater local government powers, though not the full powers under the Local Government Act 1936 (Qld). Queensland Police now have a presence on all trust areas, and in time all will have a magistrate visiting on circuit. Some efforts are being made to establish a training scheme for Aboriginal justices. [194] If the courts are to continue certain requirements must be met. First, the courts must maintain basic standards and be procedurally fair. [195] Secondly, any decision on their continued operation should rest with the Aboriginal communities concerned, which should be able to choose whether they want or need an Aboriginal court, how long the court should operate in its present form, or whether a court such as that at Aurukun is preferable. [196] This may be a difficult decision to make, as courts have been operating in communities for many years and, despite deficiencies and criticisms, they have become an established part of community life. Thirdly, more attention needs to be given to training justices and staff of the courts. And finally the confused relationship between local government powers and the powers of Aboriginal councils under the 1984 Act [197] needs to be addressed, including the question of the appropriate range of local government powers for trust areas.

747. The Syddall Inquiry.
The system of 'Aboriginal courts' in Western Australia [198] was introduced by the Aboriginal Communities Act 1979 (WA). It stemmed largely from the efforts of Mr Terry Syddall MBE who for varying periods, commencing in 1970, worked as a stipendiary magistrate in the North West of the State. He had adopted a practice of inviting local elders to sit with him in the courtroom while Aboriginal defendants were being dealt with, and of discussing possible penalties with them. In 1977 he was asked by the Western Australian Government to conduct an inquiry into aspects of Aboriginal law and to formulate plans to improve the understanding of the law by Aboriginal communities. The inquiry was to be limited to the Kimberley area, on the basis that any decisions made following it could if appropriate be later extended to other parts of the State later. As a result a system of 'Aboriginal courts' in Western Australia was introduced in an experimental basis in 1980 at La Grange and One Arm Point. [199]

748. The Aboriginal Communities Act 1979 (WA).
The Act provides for the scheme to apply initially to the Bidyadanga Aboriginal Community La Grange Incorporated and the Bardi Aborigines Association Inc, with provision for further communities to be included by proclamation (s4). It has in fact been extended to three other communities: Lombadina, Beagle Bay and Balgo Hills. A number of applications have been made by other communities to be included (including town-based Aboriginal communities). The Act provides for community councils to make by-laws covering a range of specified subject matters (s7) including:

749. Application of Aboriginal Traditions.
There is no specific provision for by-laws to be made dealing with local Aboriginal custom, although some of the matters specified in section 7 could in their application include custom. [200] Sub-section 7(3) provides that:

Nothing in this Act affects the power of a community or its Council to make other by-laws, rules or regulations under and in accordance with the Constitution of the community.

However, this provision is likely to be limited to by-law making powers associated with incorporation rather than any more general powers. The former Attorney-General clearly stated the Government's intention with respect to the recognition of customary laws'

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. [201]

750. Enforcement of the By-laws.
The by-laws apply to all persons, Aboriginal or non-Aboriginal, within the community lands (s6, 9). Penalties of a fine not exceeding $100 and imprisonment for a maximum of three months may be imposed for breaches of the by-laws. Fines are paid to the Council for the use of the community (s 12). There is provision for an offender to be ordered to pay compensation (not exceeding $250) to the community or to an injured person (s7). Breaches of the by-laws are dealt with summarily under the Justices Act 1902 (WA). Proceedings, which may be brought by a member of the police force, are not dealt with by a special Aboriginal court but come before an ordinary court staffed by justices of the peace or a magistrate. The intention however is that the court should be staffed by Aborigines, and to this end Aboriginal justices of the peace and other Aboriginal court staff have been appointed. No provisions in the Act deal specifically with this aspect of the scheme: once Aboriginal justices of the peace are appointed they have the normal powers of justices of the peace and are not limited to hearing breaches of the by-laws. There is no exclusion of other laws of Western Australia, such as the Criminal Code and the Police Act, from Aboriginal communities so that local by-laws are additional to other State laws. [202] Section 13 of the Act provides that:

No by-law takes away or restricts any liability, civil or criminal, arising under any other statutory provision or at common law.

Thus there is a potential for conflict between by-laws and general State laws, in which case State laws would prevail. A number of conflicts are pointed out by Gyanraj:

Such conflicts, while not major, have the potential to undermine the effect of community by-laws, although in practice, given the restricted scope of the by-laws and the way they are enforced, this does not seem to have occurred. [204]

751. Model By-laws.
In order to implement the scheme a model set of by-laws was drafted and some training of Aboriginal justices undertaken. The first by-laws to become effective, for the La Grange community, were gazetted on 15 February 1980. Identical bylaws, for One Arm Point (Bardi), Lombadina, Beagle Bay and Balgo Hills, have since been gazetted. [205] The by-laws closely follow s 7 of the Act. There are thus provisions regulating the entry of persons on to community land (Balgo Hills by-laws 3-5) and vehicle traffic on community land (by-laws 6-7), and creating a number of offences. For example, by-law 10 states:

No person shall cause a disturbance or annoyance to other/persons by using abusive language or fighting or otherwise behaving in an offensive or disorderly manner.

By-law 12 relates to alcohol on community land. The Council is empowered to permit 'any person' to bring alcohol onto community land or possess, use or supply alcohol on community land, but the Council may impose such 'terms, conditions and restrictions as [it] thinks fit'. Proceedings for breaches of the by-laws may be brought by police officers, who are also empowered to remove a person from community land for a maximum of 24 hours or until a court is convened, where that person has committed an offence or is likely to cause injury to persons or to damage property. By-law 17 provides that:

It is a defence to a complaint of an offence against a by-law to show that the defendant was acting under, and excused by, any custom of the community.

Although this 'customary law defence' is not specifically provided for in the Act, if there is power to create offences in the by-laws then there must also be power to establish special defences. [206] The defence has been relied on by defendants before courts sitting in Aboriginal communities, though on rare occasions and with very limited success. [207]

752. The Extent of Aboriginal Autonomy.
The by-laws which operate in the five Aboriginal communities in Western Australia are, so far as their content is concerned, non controversial. Their scope is limited. They cover a range of less serious offences, which however constitute a large proportion of the day-to-day problems within Aboriginal communities. While it is intended that there be Aboriginal involvement in the court administration, there is no requirement for this. Nor is it clear how much scope there is in practice for Aboriginal communities to draft their own by-laws to include aspects of the local customary laws, as the drafting of one set of model by-laws applicable in all five communities may indicate. [208]

753. Geographical and other Limitations of the Scheme.
The number of communities included in the scheme is still small. Considerable caution has been exercised in extending the scheme, which is so far limited to the north-west of the State. Aboriginal communities outside this region, such as Mt Margaret in the Eastern Goldfields, have requested inclusion in the scheme, but this has not yet occurred. The criteria for selection, as stated by the former Attorney-General, required that the community in question 'be a coherent community with established community leaders, such as tribal elders, having recognised authority within that community', that 'the people and their leaders must demonstrate a desire to Preserve the peace and harmony of their community' and that 'they must show a willingness to abide by the laws of the land and be prepared to accept voluntary restrictions on alcohol consumption'. [209] In addition, persons within the community with a reasonable degree of understanding of the legal system are required. Selecting persons to play leading roles and training them for their positions can be difficult and time-consuming. These, relatively strict, criteria may be one reason for the limited scope of the scheme so far: another is the State Government's desire to review the scheme before extending it to other areas. [210]

754. Contrast with Queensland By-laws.
Comparing the Western Australian by-laws with the Queensland by-laws, the Human Rights Commission commented that:

The Western Australian by-laws confine themselves to a limited range of topics involving minimum interference with the day-to-day lives of residents in various Aboriginal communities. On the other hand the Queensland by-laws, containing as they do a very wide range of topics coupled with open-ended discretions entrusted to the Managers and Councils, permit the most minute regulation of the day-to-day lives of Aboriginal persons on reserves in Queensland. [211]

The Human Rights Commission concluded that, again in contrast to Queensland, the Western Australian by-laws 'do not involve racial discrimination or any serious infringements of human rights'. [212]

755. The Western Australian Scheme in Practice.
Very different views have been expressed on the success or otherwise of the scheme. The former Government of Western Australia considered the scheme very successful, [213] but the present Government takes a more cautious and reserved view. According to the Minister with special responsibility for Aboriginal Affairs:

It is difficult for me to comment in any definite way on the effectiveness of the Act as this tends to vary considerably between community situations and depends upon a variety of factors. I feel that I can submit a general view that the WA Act has assisted some communities in their wish to have a closer involvement in the administration of justice at the community level and has also assisted in their improved communication with authorities in law enforcement and general judicial matters. [214]

Questions have been raised about the autonomy of the justices of the peace in operating courts within their community. When the scheme was set up it was envisaged that the magistrate would train the Aboriginal justices of the peace, and that as they became proficient his role would diminish or even disappear, leaving them to run the court themselves.

This has only occurred to a limited degree in most of the communities. [215] The result is that Aboriginal communities still have little responsibility for their own local law and order problems. Obviously, training of Aboriginal justices and other court personnel is required, but the aim should be substantial independence, if this is what local Aboriginal communities want.

756. Community Support.
The Commission held meetings in 1981 at both La Grange and One Arm Point and has discussed the scheme in detail with persons involved in its operation (including Mr T Syddall MBE and Dr J Howard, the two magistrates who have operated the scheme). There was clearly at the time in both communities, general support for the concept, although it was suggested that some difficulties arose in determining which matters should go to the 'white man's court' and which should be dealt with according to Aboriginal traditional law. [216] One view expressed at La Grange was that certain matters should be dealt with by community meetings rather than before a court:

like some people when they have a fight or fighting between husband and wife, they face the court... It should have been settled by the whole community...

You see its not a white man's problem. May be the husband hit his wife. That's a problem on the Aboriginal side. [217]

Fr Kevin McKelson, who has been superintendent at La Grange for over 20 years, thought the new scheme had been and would be successful:

in itself it has been a blessing, and the fact that sometimes it does not work is not due to the JP's, it is due to the fact that the police possibly do not visit as regularly as they can or the local magistrate has other commitments in other areas of the Kimberleys. [218]

757. The Hoddinott Study.
But this view is not universally shared. A study of the scheme by Ms A Hoddinott, based on a six month project, was published in 1985. [219] The study was highly critical of the way the scheme has operated in practice, partly based on the lack of real independence of the Aboriginal justices, but more fundamentally on the scheme's failure to incorporate local customary laws. According to Hoddinott:

The scheme, whilst promising in its inception, has developed serious difficulties in application There are general feelings of discontent among community members participating in the scheme except at Beagle Bay ... The whole social organisation of traditional Aboriginals rests on the kinship structure which is closely linked to expectations and obligations between kin. The justice of the peace scheme is creating havoc among tribal Aboriginals in terms of the expectations alone. Tribal laws are either being ignored or undermined by an alien value system. Further, Aboriginal justices feel they are becoming powerless both within their own law, and within the framework of the... Act... There is a lot of resentment and an increasing sense of impotency because they feel they are still advisors to the court. [220]

However the statistical material presented by Hoddinott does not indicate any clear differences between communities in the region subject to the scheme and those that are not. [221] Differences that do exist are almost certainly due to other factors. [222] Moreover the scheme has never purported to be a recognition of 'tribal law' or of 'tribal arbitration'. [223] Structurally it was from the beginning an extension into local communities of the general court system, with certain adjustments and with the addition of local personnel. The range of offences covered is limited, both in theory and practice, and most are directly or indirectly related to alcohol. It is most unlikely that any scheme centering on the application of 'tribal law' or 'tribal arbitration' would concern itself with many of these matters. On the other hand, the disruption caused by alcohol can be great, whether or not 'tribal law' is involved. As the Western Australian Minister pointed out, it is perhaps for this reason that:

an increasing number of Aboriginal communities have requested that they be given the opportunity of having by-laws applied under the provisions of the Aboriginal Communities Act. Some of these communities are town based and it could be expected that a different range of factors would affect the operation of the Act should it be extended to these communities. It seems that most communities are seeking assistance in the area of liquor control and it may be more appropriate in some situations to introduce a modified form of the by-laws or new legislation aimed specifically at providing dry areas. [224]

758. Future of the Scheme.
Clearly there are very different perceptions of the scheme, influenced in part at least by different expectations of what it should be seeking to achieve. One possibility would be to restructure the scheme, to avoid the conflict with kinship responsibilities outlined by Hoddinott. However the scheme was specially formulated with Aboriginal kinship as a central feature. Aboriginal justices are chosen as representative of particular 'sections' or 'sub-sections' in order to overcome kinship difficulties. If Hoddinott is right about kinship difficulties, then clearly the fundamental assumptions of the scheme are open to doubt. There may be a large number of cases which the Aboriginal justices do not wish to hear, and which they are quite happy for the Magistrate to hear when he visits on circuit. In these cases the Aboriginal members of the community may seek only the opportunity to give background information or advice on sentencing, rather than being seen or decision-making. This would be similar to a scheme operating at Galiwin'ku in the Northern Territory, described in para 764. One danger in introducing local Aboriginal courts is that, rather than reducing the number of persons appearing in court, they may increase the number of prosecutions, and even the range of offences, well beyond what would otherwise be the case. The penalties imposed may be no different from those the ordinary courts would impose, or may be more severe. There is no real indication that the latter problem has occurred under the 1979 Act (as it has with Queensland courts), but that may only indicate its very limited scope and effect so far. [225]

The 1979 Act is being reviewed by the Western Australian Government: [226] in that review careful consideration should be given to provisions which would assist local communities to achieve a more substantial degree of autonomy, whether through changes to the Act or in other ways which respond to local needs and demands. [227] Furthermore, great care must be taken to articulate clearly the rationale for such courts, and to be realistic about what can be achieved.

759. Different Schemes.
There are no separate mechanisms in the Northern Territory such as those discussed in this Chapter. However, two recent developments should be mentioned. The first involves the granting of certain local government powers to Aboriginal communities, including the power to pass special by-laws to operate within the specified community area. Although the powers to make by-laws are circumscribed, the Community Government Scheme, as it is known, may provide a model for law and order powers to be given to certain communities in addition to their local government powers. The second development involves an attempt to get greater Aboriginal involvement in the administration of the criminal justice system at the local level. Finally there is an interesting dispute resolution model contained in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Section 25 imposes on Land Councils an obligation to conciliate in Aboriginal disputes over land within their area of responsibility. These provisions will be described in turn.

760. Community Government Scheme.
The Community Government Scheme was introduced by an amendment to the Local Government Act in 1978. [228] Although not specifically limited to Aboriginal communities, it has so far been introduced in Aboriginal communities only: Lajamanu, Angurugu and Milikapiti, with Belyuen, Nguiu, Maningrida and Palurumpi intended to be included in due course. Communities must apply to the Local Government Minister for inclusion in the scheme. The Minister has to approve a model set of provisions for community government schemes which may be adopted by the community, or the community may draw up its own provisions which must be exhibited for public comment. The Minister has to arrange consultations with community residents before approving a scheme, and must be satisfied that the majority of the residents are in favour of the scheme. The scheme provides for the election of a community government council whose powers under s 454 may include commercial development; communications; community amenities; education or training; health; housing; relief work for unemployed persons; roads and associated works; water supply, and welfare. These are broad powers, considerably broader than would normally be given to a local government council. They provide the potential for a degree of autonomy, although, of course, within the constraints of the Local Government Act. It is a matter for each community to decide, when the schemes are set up, which powers they will exercise.

761. Local By-laws.
The community government council has the power to make by-laws which, in addition to local government matters, may cover:

A fine of up to $200 may be imposed by the court for any breach of the by-laws. By-laws come into effect on notification in the Gazette, unless another date is specified. There is provision for disallowance by the Legislative Assembly. The Minister has no direct powers to disallow by-laws although he may recommend amendments. There are no special provisions for the by-laws to be policed by either the Council or by any local Aboriginal police vested with special power to deal with such breaches. On the other hand the contents of a community government scheme have effect as a law of the Territory (s439) so that any breaches of the by-laws would be dealt with as a breach of Northern Territory laws.

762. The Scheme in Practice.
The community government scheme is still in its early stages. Lajamanu has been operating for a number of years, but Angurugu only since September 1982 and Milikapiti since October 1983. No by-laws have yet come into effect. Discussions have been held at Lajamanu about by-laws: one idea was for a by-law to make it an offence to be drunk in a public place within the community boundary, but the action required to put this into effect has not been taken. [229] The Angurugu Community on Groote Eylandt has requested by-laws to cover offensive weapons, control of dogs, petrol sniffing and swimming in the catchment area, [230] but the community had received no information as to when the by-laws would be drafted and put into effect.

763. Delegation of Child Welfare Functions.
A further development of the community government scheme is contained in the Community Welfare Act 1983 (NT). Sections 70 and 71 of the Act envisage delegation to a community government council of certain child welfare functions. Section 70 provides for a preference principle so that Aboriginal children in need of care are placed with Aboriginal persons. [231] Section 71 gives a specific role to a community government council:

A community government council constituted under the Local Government Act or an association incorporated under the Associations Incorporation Act may, subject to agreement with the Minister, undertake functions under this Act in relation to the welfare of children and the provision of facilities and trained staff to provide counselling and assistance to, or in relation to the welfare of, children.

No agreement has yet been made with a community government council under s 71. The section has been criticised because the Community Government Council is given a role involving child welfare decisions which it would not have under customary laws. The 1983 Act, and its operation in practice, are discussed in Chapter 16 of this Report. [232]

764. Justice (Courts) Project in Aboriginal Communities.
This pilot project, which had been under consideration in the Northern Territory for some years, was initiated in November 1982. Only one community, Galiwin'ku (Elcho Island), has so far been involved. [233] Basically the court is run under ordinary rules but with flexibility to allow local views to be taken into account in sentencing. A group of clan elders sit with the magistrate in order to give their views on the seriousness of the offence and an appropriate sentence. The family of the accused and other community members may also attend court to give their views on the accused's behaviour and appropriate sentence. An anthropologist employed within the scheme is responsible for assessing family and community views both on individual cases and on broader issues. He assesses family structure and proposes strategies for the offender's future. His role is supplemented, and will eventually be taken over, by two locally employed Aborigines who gather information required by the court.

A detailed report is prepared on each offender detailing their information for the magistrate before the offender appears in court. According to the Northern Territory Department of Law the scheme has a number of aims:

Although local Aborigines sit with the magistrate, in effect as 'assessors', this is neither a new arrangement nor the most significant aspect of the scheme. [235] What is significant is the work done, by the anthropologist and by two local Aborigines employed under the scheme, to prepare a background report on the offender, and to seek to link relevant kinship responsibilities with the eventual sentencing decision. The anthropologist concerned has:

developed a genealogical index with the permission of the participating Aboriginal clans as a major tool for precisely identifying a defendant and then tracing, through genealogical links, specified kin whose traditional responsibilities toward the defendant included the exercise of specified Aboriginal social controls. This data is then selectively made available on a restricted basis to effect consultation with the defendant's family prior to court and to provide detailed social background reports to the magistrate. [236]

This information has allowed the magistrate, with the advice of senior Aboriginal men, to make better informed sentencing decisions:

Prior to the sentencing of a defendant in the community court there is afforded to the magistrate a reasonable assessment as to whether or not the clan group of the offender has the ability to rehabilitate him in the manner in which they wish, such as isolating him at an outstation, putting him through a ceremony subservient to the authority of older men etc. Although many clans may aspire to do this, the magistrate must have a realistic assessment as to whether or not the clan has the ability to carry out such actions and whether the wider community will allow it to happen. [237]

Thus the scheme concentrates at the sentencing level, with only minor changes to the court itself. [238] A review of the scheme after one year reported an apparent drop in imprisonment rates at Elcho Island, though the figures are far too small, and the scheme has been operating for too short a time, for this to be significant. [239] Of more interest is the observation that:'

the majority of offenders coming before the courts are from clans not living on their own estate but resident in major communities such as Galiwin'ku and Milingimbi, thus subject to considerable internal politics and an often dessicated authority structure. [240]

Although the project is of considerable interest, it is too early to assess its real impact. That should be the subject of an independent review in due course.

765. Conciliation Role of Land Councils.
Section 25 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) imposes a duty on Land Councils to attempt conciliation of disputes over land between Aborigines and/or Aboriginal organisations. Subsection (3) provides that:

Where proceedings are commenced before a court with respect to [a land dispute of this description] the judge or magistrate constituting the court may, if he thinks it appropriate, adjourn the proceedings at any time for the purpose of affording a Land Council the opportunity of undertaking conciliation with a view to the settlement of that dispute.

Land Councils have been involved in conciliating such disputes, although the Commission is not aware of proceedings being adjourned in any court for the purpose of enabling conciliation to occur. The Commission has been informed that in those disputes where Land Councils have been involved they have been quite successful, although some disputes between groups of long standing have been difficult, sometimes impossible to resolve. [241]

766. Tribal Assessor.
While there are no special Aboriginal courts in South Australia provision is made in the Pitjantjatjara Land Rights Act 1981 (SA) and the Maralinga Tjarutja Land Rights Act 1984 (SA) with respect to dispute resolution. Part IV of each Act provides for the appointment by the Minister of Aboriginal Affairs (SA), with the approval of Anangu Pitjantjatjara or Maralinga Tjarutja, of a tribal assessor to hear appeals by any traditional owner aggrieved by a decision of the body corporate (Anangu or Maralinga Tjarutja) which holds the title to the land. Given the terms of the Acts and the functions and powers of the two bodies corporate, the role of the tribal assessor would usually be limited to disputes relating to the use of Aboriginal land. However, this need not always be the case. For example, s 36(1) of the Pitjantjatjara Land Rights Act 1981 (SA) provides:

Any Pitjantjatjara who is aggrieved by a decision or action of Anangu Pitjantjatjara, or any of its members, may appeal to the tribal assessor against that decision or action.

The tribal assessor is required to hear the appeal at some suitable place upon the lands and to conduct 'the hearing as expeditiously as possible and without undue formality'. The assessor is not bound by the rules of evidence, but is required by s 36(4) 'to observe, and where appropriate give effect to, the customs and traditions of the Pitjantjatjara people'.

Despite these provisions no one has yet been appointed to the position and, apparently, no need for an assessor has yet arisen. [242]

767. The Australian Experience.
The Australian experience with Aboriginal courts or equivalent bodies is limited. Aboriginal courts have been of uneven quality and have had mixed success. Overall the experience is inconclusive, even discouraging. Recent developments in the area of dispute resolution and community justice (not related to Aborigines) have been more towards mediation and conciliation, or increased involvement in sentencing and rehabilitation, rather than setting up new and separate court systems. The Queensland Aboriginal courts, while tolerated and even generally accepted within some communities, do not accord with this trend. But there is no strong tendency to enlarge their area of operations beyond the communities where they already exist. There are also more basic questions, which continue to recur in a variety of schemes, about the conflicts between introduced and local authority structures that Aboriginal courts or other official structures can create or intensify. These underlying questions will be discussed in Chapter 31.

768. Relevance of Overseas Comparisons.
There is a great deal of overseas experience with indigenous justice mechanisms: in Africa, North America, Papua New Guinea and the Pacific, and elsewhere. Lessons can be learnt from this experience, even though, in the end, the Australian situation may require its own particular approach. This experience is extensive. The more significant examples from jurisdictions which may be relevant to Australia are outlined in this Chapter.

769. Background.
Village courts began operating in Papua New Guinea in 1975. [243] Since that time the number of courts has greatly increased and they now serve two thirds of the population of Papua New Guinea. [244] In August 1985 there were 856 village courts staffed by 7674 village court officials. [245] Courts are established only on request from the local community, and many requests for courts are still to be processed. The national government is committed to the expansion of the courts and is aiming at 57 new village courts in 7 provinces and the National Capital District between 1984 and 1987. [246] The scheme has reached the stage where some commentators have claimed that the village courts are perhaps 'the most important legal institutions in the country’. [247] The creation of village courts was linked to the end of the colonial era and the movement towards independence during the late 1960s and early 1970s. This involved to some degree a rejection of the British common law traditions previously adopted, and an attempt to make the legal system of the newly emerging nation more relevant to the Melanesian people. [248] An important feature of this movement was the attempt to 'customise' the existing legal system so that the underlying law, made up of both custom and common law, became the dominant law rather than introduced statutes. [249]

770. Structure of Village Courts.
The Village Courts Act 1973 accordingly provided for the establishment of village courts to operate alongside the existing local and district courts. Important features of the village courts include the following:

∗ sorcery.

The Court may also hear contraventions of Local Government Council rules.

Between 3 and 10 local magistrates constitute the court, but in many areas a distinction has developed between an 'Area Court' and a 'Full Court'. With an 'Area Court' one or two village court magistrates try to mediate and reach a settlement which is reduced to writing and may be enforced. If mediation is unsuccessful a 'Full Court' of 3 or more magistrates will hear the case. [253] A village court clerk who is the record keeper, and a village peace officer who assists the court and enforces its decisions, are the only other officials. They are not full-time officials and receive only a limited amount of remuneration. A district court magistrate is given responsibility for regularly inspecting village courts within his area.

771. Village Courts in Practice.
The number of village courts has expanded rapidly since their introduction in 1975. They seem generally to be popular and have become an important feature of the Papua New Guinea legal system. They appear to fit relatively well into the life of local communities, and their acceptance at village level, evidenced by the use made of them, is an important yardstick of their success. However during the nine years of their existence, the village courts have not been without their difficulties. [254] A number of concerns have been raised about their operation.

772. Formality of Procedures.
Many village courts have not developed in accordance with the intended model: informal procedures, no technical rules of evidence, ability to sit at any time and in any place, [255] and mediation of disputes rather than arbitration. Rather the village courts have tended to take the common law courts as their model and have to an extent neglected mediation and compromise. [256] It may be that magistrates have protected their own position by adopting a relatively formal approach. Village courts were a new legal institution within Papua New Guinea, and many magistrates were uncertain of the role they were to perform. However more recent evidence gathered by the Papua New Guinea Law Reform Commission suggests that mediation plays a greater role than suggested by some commentators. Their data showed mediation was twice as common as formal hearings. [257] The Official Report on Law and Order in Papua New Guinea (September 1984) presented a different perspective:

The emphasis on formality in village courts appears to correspond to certain needs in the community and seems to us to illustrate the way flexible legislation permits communities to make what they need out of the broad provisions of the Act. [258]

773. Application of Custom.
Although village courts are meant to apply custom to settle disputes, there has been a tendency for magistrates to search for formal rules of law in order to exert their authority and the authority of the court within the village, rather than relying on local custom. [259] On the other hand the application of custom is not always an easy matter.

It is rarely in written form (although it seems that there is a growing record of customs as applied in the courts) and the ability of the court to apply custom is restricted to some extent by the limited knowledge of magistrates, who are not always the older, more knowledgeable persons in the community. Younger, tertiary educated persons are also chosen as magistrates.

774. Unofficial Dispute Resolution.
The reality of this criticism diminishes when one takes into account the extent of unofficial dispute resolution operating within villages, sometimes involving village court officials:

This forum is typically less legalistic than the Village Court; it takes place directly outside the court house or in the village; many more people are included in the discussion, both as participants and audience, than the few who meet inside the Village Court; the ideas and events introduced are much more loosely associated with the dispute under consideration. [260]

These unofficial mechanisms significantly reduce the number of matters which might otherwise come before a village court without diminishing the important role village courts can play:

[The village courts] are used mainly for cases that have not been solved by other methods available to the community: they are' most of the time the remedy of last rather than first resort. By and large villagers use customary procedures including mediation before they go to a village court. They seek from the court authority and enforceable decisions rather than the mutual agreement which has already eluded them. [261]

775. Relation to the General Legal System.
It has been suggested that many magistrates working in village courts perceive their authority as being external to the local community and regard themselves as administering government law, [262] because this is the source of their authority.

The symbolic might of the Court style is itself an aid to enforcement, for it evinces the Court's association with the government and therefore the support the officials can call upon from the government ... The power they hold mainly comes from their association with government, and by emulating other government courts they demonstrate that relationship. [263]

However officials also complain about the lack of support given to them by the government. While their complaints have focussed principally on monetary allowances they also extend to facilities such as transport and police support. The relationship between the village courts and the police at times been difficult. There is no formal link between the two. This creates the potential for conflict when the police and village court officials become involved in the same dispute. [264]

776. Supervision.
A major practical problem associated with village courts is supervision. The supervising and inspecting magistrates play a crucial role in the proper development of the village courts. Supervision of local magistrates helps to ensure that fewer mistakes are made and that the courts do not lose direction. The rapid increase in the number of courts created increased responsibilities for supervising magistrates. In response, full time Village Courts Inspectors have been recruited, and they have taken over most of the supervisory work of the magistrates. The level of supervision has greatly improved as a result. [265]

777. Usefulness in Urban Areas.
At present the only village courts in an urban area are in Port Moresby. Doubts have been raised about their viability in urban areas, where there may be little or no community cohesion, where people are drawn together from many different areas, and where custom no longer plays as significant a role in day-today life. In these areas persons may be more likely to rely on the general court system. [266] What may be required is greater flexibility in the court's procedures to accommodate urban lifestyles. Some village courts, for example at Kila Kila, a few miles from Port Moresby, sit at night to allow for the work patterns of the villagers. [267] Such flexibility may help ensure the workability of a village court. The Report on Law and Order in Papua New Guinea strongly supported the extension of village courts into urban areas:

We see a pressing need for village courts in the towns of Papua New Guinea, preferably in association with the re-establishment of some form of local government. [268]

778. Village Courts and Women.
Village courts are male-dominated institutions. Virtually all the magistrates are men, [269] and some women have accordingly been reluctant to bring disputes before the court. Doubts about the likelihood of a fair hearing and the inexperience of women as public speakers have been given as reasons for this reluctance. [270] Paliwala suggests that in cases involving women some village courts have adopted a very traditionalist approach - a traditionalism not evident in other cases before the same courts. [271] On the other hand the Report on Law and Order in Papua New Guinea cited figures, collected by the Law Reform Commission, showing that women were plaintiffs in 32 per cent of village court cases studied, and that often the complaints were against men. [272]

779. Overview and Conclusions.
Despite early resistance to the concept of village courts, once they came into operation the demand for their establishment has been strong. For the most part, they have been successful in achieving their purpose. Village courts, while not without their difficulties, have clearly filled a gap in achieving order at the village level. The large number of cases dealt with by village courts also suggests they are meeting local needs and reducing the number of cases coming before the higher courts. [273] According to Paliwala:

from the perspective of court officials and our observation of the courts in operation, the model effective village court is one which attempts to achieve stability by punishing fighting, bad language, drunkenness and gambling and being tough with young offenders. It protects property by punishing theft and trespass. It facilitates traditional and modem transactions by enforcing contracts and debt. It keeps women under the control of their husbands by ensuring that they do not obtain divorce too easily, and by punishing unorthodox behaviour. Finally it acts as a judicial arm of the council. [274]

The Report on Law and Order in Papua New Guinea comments that:

While there are no objective measures, it seems likely that village courts are contributing to the maintenance of order by assisting in the peaceful settlement of disputes and providing quicker and surer punishment for minor offenders... [T]hey have provided a spur to the sense of community and involvement in community, and to a sense of the worth of things run by and for common people. Insofar as they are successfully linked to other government agencies, village courts contribute to the legitimacy of the state and hence to other sources of order in the country at large. [275]

The Village Courts Act is to be revised and consolidated to deal with some of the specific
problems that have been identified. Changes to be made include:

But these reforms are of a machinery character only: the village courts have clearly become a permanent feature of the legal system. [277]

780. Different Kinds of Courts.
The relatively recent development of village courts in Papua New Guinea may be contrasted with the long-established systems of tribal courts in the United States. Three general categories of Indian tribal courts [278] exist: (1) tribal courts, [279] (2) courts of Indian offences (often called CFR courts because they are governed by the Code of Federal Regulations) [280] and (3) 'traditional' or 'customary' courts. [281] These courts, which vary considerably in their operation, serve over a hundred different Indian tribes throughout the United States, although they are principally located in the States of Arizona, New Mexico, Montana and the Dakotas. [282] In fact 24 States contain reservations and approximately 85% of American Indians live in these States. Approximately 59% (about 452,000 Indians) live on or near reservations in these States. [283]

781. Customary or Pueblo Courts.
The three categories of Indian tribal courts have changed little over the last 50 years. The smallest category remains the 'customary' or 'traditional' courts of the Pueblos, of which there are approximately 18. [284] They in no way resemble the other categories of Indian courts which are modelled on the general legal system. The tribal Governor of the Pueblo performs judicial functions and the laws he enforces are based on long-standing oral custom. The Pueblos have no written constitutions or codes of offences. Considerable power is, however, exercised by the Pueblo Council, composed of ex-Governors, which is responsible for appointing a new Governor annually and also occasionally conducts preliminary hearings of cases. The Council rarely hears appeals.

782. Tribal and CFR Courts.
There are important differences between these two forms of Indian courts, despite similarities in their actual operation. [285] The fundamental difference is that tribal courts operate directly under the authority of the tribe, whereas CFR courts operate under federal law and are subject to the Bureau of Indian Affairs. In tribal courts judges are either elected by tribal members or appointed by the tribal council. [286] All adult members of the tribe are eligible to be appointed judges provided they have no serious convictions. No formal legal qualifications or knowledge of customary law is required. Appellate systems exist on most reservations: the review power generally resides in either the tribal council or an appellate court of tribal judges.[287] The tribal council is the dominant authority on most reservations: it is often vested with the power to appoint judges and its decisions are usually not subject to review by the tribal court. [288]On the other hand the approximately 17 CFR courts which can be classified as courts of Indian offences [289] are under the formal control of the Secretary of the Interior. The Bureau of Indian Affairs, after consultation with the tribal council, appoints judges for a four year term.

783. Reservations without Courts.
Not all Indian reservations have tribal courts. Some never adopted court systems, others have abandoned them. [290] In addition tribal governments are able to delegate their judicial function to the State, although this requires a specific enabling Act of Congress. [291]

784. Constitutional Basis.
So far as tribal courts are concerned the authority which forms the basis of the Indian court system flows not from statute but from the inherent self-governing power of American Indian tribes based on original sovereignty.

The present right of tribes to govern their members and territories flows from a pre-existing sovereignty limited, but not abolished, by their inclusion within the territorial bounds of the United States. Tribal powers of self-government today are recognized by the Constitution, legislation, treaties, judicial decisions, and administrative practice. They necessarily are observed and protected by the federal government in accordance with a relationship designed to insure continued viability of Indian self-government insofar as governing powers have not been limited or extinguished. [292]

The Federal Government however has an overriding responsibility in Indian matters under the Constitution. The principal provision is the Indian Commerce Clause, by which Congress is empowered 'to regulate Commerce with Foreign Nations and among the several States, and with the Indian Tribes’. [293] This Clause places Indian tribes in the same category as other sovereign nations for commerce purposes. It has been interpreted as giving exclusive federal authority in this area.

785. Jurisdiction.
Perhaps the most vexed issue confronting the Indian courts (tribal courts and CFR courts) is that of jurisdiction. [294] This has been a contentious issue since the first recognition of Indian sovereignty, and it has become more complex over time. In both the civil and criminal areas there is still uncertainty in some cases over whether Federal, state, or tribal government has jurisdiction. Such factors as whether the persons involved are Indian or non-Indian, the nature of the offence or action to be brought and the location of the offence, may determine which court or courts have jurisdiction. The reality of these difficulties and uncertainties cannot be underestimated: [295] they arise from legislative encroachments on Indian sovereignty and from conflicting decisions of the Supreme Court. It is worth outlining briefly the principal legislation which determines jurisdiction.

The trend of the legislation, together with the impact of a number of Supreme Court decisions such as Oliphant v Suquamish Indian Tribe [302] which held that tribal courts have no criminal jurisdiction over non-Indians unless Congress delegates it to them, has severely reduced the jurisdiction of the tribal courts. It has also created a perceived need by Indians to professionalise and formalise the court system previously run informally by non experts. The vast majority of Indian tribal judges are not trained lawyers nor have many had specific training for the job. The appearance of professional legal counsel before them, not surprisingly, makes many feel uneasy. [303]

786. Current Jurisdictional Problems.
The combined effect of the various Acts relating to Indians and the many Supreme Court decisions on jurisdictional issues leaves a confused picture of federal, State and tribal jurisdictions. In very general terms the following categorisation can be made:

∗ Offences occurring off reservations (i.e. non-Indian land) [304] will come within State or federal jurisdiction regardless of whether the offender is Indian or non-Indian. The principal exception to this rule is that certain tribal fishing areas off reservations are recognised by treaties, and tribal courts retain jurisdiction to prosecute their own members for breaches of any tribal fishing regulations in such areas.

∗ Offences occurring on reservations (i.e. Indian land) create most jurisdictional disputes. Generally, tribal courts have jurisdiction over Indian offenders, with the following exceptions: (1) the 14 enumerated offences in the Major Crimes Act which come within federal jurisdiction, [305] and (2) in those States where Public Law 280 applies. Tribal courts have no jurisdiction over non-Indians, even if there is an Indian victim. Offences involving only non-Indians (as offender and victim) are matters for State courts.

∗ If both plaintiff and defendant are Indian, the tribal court has jurisdiction unless a federal question is involved.

∗ An Indian plaintiff suing a non-Indian may choose between the State or tribal court (or a federal court if federal jurisdiction is involved).

The tribal court has jurisdiction over a non-Indian plaintiff suing an Indian with respect to a transaction occurring on the reservation (except in States where Public Law 280 applies). [306] If the transaction occurs off the reservation State jurisdiction prevails unless federal law otherwise provides (as with the Indian Child Welfare Act 1978).

The complicated jurisdictional problems that arise are far from satisfactory and rationalisation of the system is clearly necessary. Many tribal courts are in doubt as to their powers; while some appear not to be unduly concerned about such problems, others have declined to hear certain cases for fear of acting beyond their powers. This can have an undermining effect on the the authority of the tribal court.

787. Workload.
In addition to these legal complexities, many practical law enforcement problems exist on Indian reservations.
Major problems of enforcement include unequal treatment of Indian and non. Indian offenders, infrequent prosecution of non-Indians for reservation offences, uncertainty over which laws apply in a given situation, poor co-operation between tribal and off-reservation police agencies, and isolation of many reservation communities from state and county courts and police. [307]

There are few reliable statistics of crime rates on reservations, or of the workload of the tribal courts in civil and criminal cases. However, there is evidence of a high level of 'crime' on Indian reservations. [308] Much of this is attributable to the large number of street offences (e.g. public drunkenness, disorderly conduct) dealt with by tribal courts. These offences, together with many other reservation offences are usually alcohol related. Reservations typically have high levels of alcoholism and unemployment. [309] Most cases involve pleas of 'guilty', and summary justice is the norm. The tribal courts deal with many more criminal cases then civil cases. [310]

788. Criticisms of Tribal Courts.
The courts are not free from criticisms, which have been made from very different perspectives. Criticisms include the following:

The courts are also criticised in more basic respects. One such criticism is directed at the concept of separate courts for one ethnic group:

it appears anomalous in the latter part of the twentieth century that one small ethnic group should be separated from the judicial system that extends to all other citizens of the United States. [313]

The validity of the notion that Indian courts are a form of traditional Indian justice which is thus more appropriate for Indians living on reservations has also been challenged. Brakel argues that 'Indian justice' as dispensed by Indian courts 'represents nothing more or less than an effort to copy white man's precepts and white man's institutions'. [314] They are not essential to the preservation of Indian culture, nor are they necessarily what Indian people themselves really want. [315] He suggests the system should be abolished.

789. Support for the Courts.
But this is by no means a universal view. Many commentators have argued that the courts work successfully, at least within the confined jurisdiction they exercise:

Success of Indian courts today is attributed primarily to the judges. Visitors to the courts were impressed by the judges' dedication, notwithstanding negative factors - low pay, tribal politics, and inadequate personnel, facilities, and training. Most judges said they are doing as good a job as conditions permit, and thought they easily could improve their courts if conditions were improved. [316]

The tribal courts' shortcomings, and special needs, are recognised not only by commentators but by Indian judges, tribal councils and organisations:

Tribal courts today face a monumental task. They must comply with the mandates imposed by the federal government, yet maintain the uniqueness and cultural relevance that makes them 'tribal courts' and not merely arms of the federal government operated by Indians in Indian country. Accomplishment of these goals depends, to a great extent, on the availability of adequate funding and relevant and pervasive training programs. In addition, tribes must address the need for separation of powers in those courts which are not traditional or customary, in order to assure procedural due process, fundamental fairness, stability and credibility. Moreover, tribes must demand, and other government entities, both within and outside the tribe, must give recognition to the judgments of tribal courts. [317]

790. Navajo Peacemaker Court.
There are moves on many Indian reservations to make the court system and the laws operating on Indian reservations reflect Indian custom and traditions more closely. The Navajo Peacemaker Court is a recent experiment of this kind. It was established in 1982 as an attempt to blend traditional Navajo methods of mediating disputes with the existing Indian tribal courts. [318] Matters come before the Peacemaker Court on referral from the Navajo District Court. A peacemaker [319] is then appointed by the Court to mediate. Disputes between family members or neighbours and business matters involving less than $US1500, are the type of matters with which the Peacemaker Court may deal. In addition a judge may refer a matter to the Peacemaker Court where he considers it appropriate. Disputes are to be resolved primarily by mediation; however where agreement cannot be reached the parties can allow the peacemaker to arbitrate the dispute. The peacemaker has power to summon any member of the Navajo tribe to assist and his decisions are binding on all Navajos. No lawyers are permitted to appear.

791. Assessment.
In these and other ways, much work is being done to improve the courts. They have a long history and appear to be regarded by Indians as important institutions. In the words of one Australian lawyer who worked in one of the Indian courts for a time:

The justification that I see for the tribal courts that operate along similar lines to a European court under a written law and order code is that they are a visible aspect of the tribes sovereignty. Generally neither the procedures nor the substantive law have anything to do with traditional Indian law. The present move is largely toward tightening up the procedures through. training to ensure due process. 'Due process' is used entirely in the Anglo sense. I believe that many of the judges and others who were involved in tribal government are aware that 'due process' may not reflect the Indian way of doing things but, especially following the Indian Civil Rights Act, it is seen as another imposed value (which may or may not be good) that must be observed if the right to run one's own affairs is to be preserved. [320]

But, as these comments suggest, the problems the Indian courts have had demonstrate dangers to be avoided when considering any similar system for Australia. In addition, the vastly different history of Indian law in the United States, and especially the continuing doctrine of Indian sovereignty, must be kept in mind, as these form the basis of the Indian court system.

792. Native Peoples in Canada.
Four separate groups of native peoples are commonly identified in Canada: Status Indians, Non-Status Indians, Metis and Inuit (previously called Eskimos). Together these native peoples, 'by far the most economically impoverished and socially disadvantaged group in Canada', [321] constitute approximately 4% of the Canadian population, made up of 300 000 status Indians in 575 bands, 600 000 non-status Indians, approximately 150 000 Metis (people of mixed Indian and European ancestry) [322] and 25 000 Inuit. [323] The identification of the separate groups carries with it important legal implications, especially the distinction between status and non-status Indians. Status Indians are subject to the Indian Act, which recognises a special relationship between them and the Federal Government, a relationship from which other native peoples are excluded. [324] 'Indian' is defined in s 2 of the Act as:

a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian.

The Inuit are specifically excluded from the provisions of the Act (s4).

793. Legal Position of Canadian Native Peoples.
In terms of their position under the law, native peoples in Canada are closer to Australian Aborigines than American Indians. The two countries have legal systems of common origin and the treatment of the indigenous minorities involving the taking of their land, the bringing together of different tribal groups on reserves and the general non-recognition of their customs and laws, has followed a similar pattern. But there are important differences. The Royal Proclamation of 1763 provided one basis for the legal recognition of native title to land in Canada. No such recognition took place in Australia. While no treaties were ever signed with Aborigines in Australia a large number of treaties were signed with Indian bands in Canada, although not with the Inuit. Responsibility for 'Indians, and lands reserved for Indians' in Canada has belonged exclusively to the Federal Government since the British North American Act (now termed the Constitution Act) 1867, whereas in Australia until 1967 the States had exclusive legislative responsibility. Indeed, since 1982 special reference has been made to the Indian, Metis and Inuit Peoples of Canada in the Constitution, which specifically preserves their existing rights. [325]

794. No Tribal Courts.
There is no equivalent in Canada to the tribal courts in the United States, and only in relatively recent times has there been serious discussion of the idea. [326] Indian bands in Canada have long had power to make local by-laws applicable on reserves, [327] and there is provision for the appointment of native justices of the peace, although these have had little impact. [328] Very few measures have been taken to create official mechanisms to allow Indians and Inuit to deal with their own law and order problems. The James Bay and Northern Quebec Agreement of 1975, concluded between the Governments of Canada and Quebec, the Cree Indians and the Inuit, is the most significant development in this regard in recent years (although current negotiations through meetings of First Ministers focussing on self-government for native peoples may also have great significance for the future). [329] The James Bay and Northern Quebec Agreement resulted from lengthy negotiations with the native people of the area who were to be affected by the building of a large hydro-electricity project. The Agreement contains specific provisions (s18, 19, 20) dealing with the administration of justice' these impose obligations on the governments of Canada and Quebec, in consultation with native parties, to adapt the criminal justice system to their circumstances, usages, customs and way of life. The Agreement has now been in existence for nine years, but little has been done to implement these provisions. [330] Other attempts have been made, again only in recent times, to make the legal system more receptive to the special needs and difficulties of the native people. Largely this has involved Indians being made more aware of their legal rights and the working of the legal system by such measures as the appointment of Indians as para-legals and 'native courtworkers', special recruitment into police forces and special entry provisions for Indians into University law schools. [331] It has also involved the conferral of additional responsibility for child welfare matter on Indian bands. [332] Some recognition of native law and custom has come from the courts themselves, especially in the North West Territories. [333]

795. A Coercive Form of Legal Pluralism.
South Africa has a diverse legal history. Its present legal system has its origins in Roman Dutch law (from the Netherlands) but with a strong infusion of English common and statute law. In addition there is provision for the recognition of the customary law of the Bantu (or Blacks). There is thus, in one sense, a 'pluralist' legal structure with not only separate laws but a separate court structure for the Blacks. The rationale for this form of legal pluralism, is, of course, the political doctrine of apartheid or 'separate development', which:

envisages the distinctive evolution of the different South African racial groups, and more particularly, as far as the African is concerned, 'progression' from an ethnic base to realise his aspirations within his 'historical homelands'. [334]

The Government has thus been a strong proponent of tribalism and of the application of indigenous customary law. A key feature of the South African .position is its coercive character. The recognition of indigenous customary law is a vehicle for avoiding the recognition of the equality of all South Africans, and is accompanied by rules maintaining the superiority of the 'white' legal system and its rules. [335] By contrast, many other African countries have, since independence, opted for integrated legal systems, partly in response to the demands of 'nation-building', partly as a reaction against pluralism as a form of 'separate development'. Some of the states in Nigeria have for example abolished customary courts, preferring instead that customary law be applied in the ordinary courts. Tanzania, Uganda, Zimbabwe and Kenya have also opted for integrated court systems. [336] The Northern States of Nigeria, on the other hand, have retained customary courts and worked on improving them. [337] Other African countries have excluded customary law completely or modified its recognition to meet their new situation. [338]

796. Customary Law and Separate Courts.
The recognition of customary law in South Africa is provided for in the Black Administration Act 1927. This Act establishes four courts whose jurisdiction extends only to Blacks. [339] These courts are Chiefs Courts (s12), Divorce Courts (s10(l)), Commissioners Courts (s10) and an Appeal Court for Commissioners Courts (s13). There is, a fight of appeal to the Supreme Court (s14) although customary law, unless specifically established in statutory form (e.g. Natal Native Code), will only be applied if there has been evidence of its existence and applicability in the lower court. All of the courts specifically created for Blacks may apply customary law. At the lowest level a chief or headman may be authorised by the Minister 'to hear and determine civil claims arising out of Black law and custom' (s12). A chief or headman may also be granted jurisdiction, pursuant to s20:

to try and punish any Black who has committed, in the area under the control of the chief or headman concerned -

(ii) any statutory offence.

Certain offences are specifically excluded from a chief's jurisdiction and his punishment powers are also circumscribed. Above the chiefs' courts in the hierarchy of Black courts are the Commissioners' Courts. These are 'courts of law' with both an original criminal and civil jurisdiction and they also provide an avenue of appeal from the chiefs' courts. Commissioners' courts are given a wide discretion in the application of custom (s11):

Notwithstanding the provisions of any other law, it shall be in the discretion of the Commissioner's Court in all suits or proceedings between Blacks involving questions of customs followed by Blacks to decide such questions according to the Black law applying to such customs except in so far as it shall have been repealed or modified: Provided that such Black law shall not be opposed to the principles of public policy or natural justice: Provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to such principles.

In determining relevant customs Commissioners' Courts and the Appeal Courts may call on Black assessors to act in an advisory capacity (s19). Commissioners are not required to have any specialist knowledge of 'Black law or custom'. Although they have the same qualifications as magistrates, they are public servants and do not have the independence of judicial officers. Their lack of training and inexperience has been the subject of much criticism: [340]

This inadequacy is reflected in their failure on the one hand to evolve meaningful rules for the choice of legal system and on the other hand, failure to adapt indigenous rules to modern settings. [341]

Criticisms of the way in which s 11 has been interpreted are similarly widespread. [342]

797. Conflicts over the Application of Custom.
While there is apparent flexibility in the application of custom, difficulties have arisen over which system, customary law or Roman-Dutch, should be paramount in particular cases. For example, should customary law be applied, prima facie, unless clearly inappropriate [343] or should some other principle apply? Bennett has suggested one approach:

As far as possible, the court should attempt to give effect to the litigant's expressed choice of legal system, but, in the absence of any such choice, it will be compelled to consider the facts as a whole and, after weighing them, objectively determine which legal system is favoured by the preponderance of the connecting factors. [344]

There are also doubts over the meaning of the 'repugnancy clause'. But much more basic questions arise as to the suitability of recognising custom in this way in South Africa. Most Blacks no longer live in rural areas but in urban, industrialised areas. There is also now much greater mobility between rural and urban areas:

The migrant workers return to the reserves, bringing with them new ideas acquired in the city. These have a considerable impact on rural life. Living patterns are changing, the patriarchal power is waning, the family group is smaller, and polygamy is almost non-existent.. [345]

Such changes have had significant impact on laws, customs and traditions particularly in the area of family and marriage laws. Such changes make the application of custom more difficult: persons coming before the Black courts (either in civil or criminal matters) may well not accept that any particular customary law applied to them. In any event it is only in legal disputes arising between Blacks that 'conflict of laws' questions arise. If a white person is involved Roman-Dutch law automatically applies.

798. Bantustans or Homelands Areas.
Development of the homelands areas ('Bantustans') adds another coercive dimension to the way customary law is recognised in South Africa. The Transkei Constitution Act 1963, s 50, goes further than s 11 of the Black Administration Act in relation to the application of custom:

In all suits and proceedings between parties involving or based ,on questions of Black custom the court shall apply the Black law applicable to such custom as far as is practicable in deciding such question, except where such custom is opposed to the principles of public policy or natural justice...

There is, therefore, in the Transkei Courts (and other Bantustans) a greater obligation to apply customary law than in the Commissioners' Courts in other parts of South Africa. How significant this has in fact been is difficult to assess:

The decisions of these courts [Commissioners' Courts and Appeal Courts for Commissioners' Courts] are so often inconsistent that it is only with difficulty that principles governing the application of one or other legal system may be extracted. [346]

799. Assessment.
The South African system provides for the extensive recognition of a 'customary law of the Blacks' and for a separate system of courts to apply customary law. Quite apart from the coercive, involuntary characteristics of apartheid and the Bantustan policy, the system has many limitations. It appears that the official Black courts, especially the Commissioners courts, though primarily set up to hear civil cases between Blacks, in fact deal with very few private law disputes. [347] In some black urban areas unofficial courts known as makgotla have been established as a self-help measure. They conduct summary trials and inflict on-the-spot punishments; their operation, and the rules they apply, are based largely on traditional customs and institutions. [348] But, in any overall assessment, the subservience of the indigenous legal system to the general legal system and the lack of control exercised by the Blacks over their lives are critical. The 'indigenous' system is plainly an imposed one, dependent on the general legal system and forced to defer to it whenever conflict arises. [349]

800. Special Laws for Maoris.
No Maori courts have ever been officially constituted in New Zealand with recognised authority to deal with local law and order problems. Since European settlement, Maoris have been subject to the general legal system which, for the most part, has taken no account of Maori laws and customs. However, some concessions have been made. Maoris once had the right to be tried by an all-Maori jury, a provision repealed in 1962. [350] Some account was, and is, taken of Maori customs and practices at the sentencing level, but not in determining substantive criminal liability. In the civil law area direct recognition has been given to various Maori customs and practices linked to the land. The Treaty of Waitangi signed in 1840 with the Maoris of the North Island was an initial recognition of Maori land title. It guaranteed undisturbed possession of the land but gave the Crown the exclusive right to purchase any land sought to be alienated. In order to regulate the way in which this was to occur the Maori Land Court was established in 1865. [351] It had three main functions:

(3) to facilitate dealings in Maori land and the peaceful settlement of the colony. [352]

The Maori Land Court (and the Maori Appellate Court) still operates with largely the same functions. [353] There is now also a Waitangi Tribunal with power to make recommendations about changes to the law or its administration which would further the 'principles of the Treaty'. [354]

801. Te Atatu Maori Committee.
A recent development is a community justice scheme operating in West Auckland run by the Te Atatu Maori Committee. The Committee sits as a form of local community court hearing cases referred to it by the ordinary courts, and seeking to deal with them in a recognizably Maori way. Similar to the makgotla in South Africa, the West Auckland scheme was established as a form of self-help. [355] However its concern is exclusively with rehabilitation and reparation for an offence: it has no role in determining the defendant's guilt. [356]

802. The Overseas Experience.
This survey has only discussed the experience with 'indigenous justice mechanisms' in a limited number of countries and in limited detail. The discussion has to some extent focussed on the shortcomings and difficulties confronting these courts and other bodies. However, the level of acceptance by the indigenous people subject to them is a crucial consideration in assessing their validity and success. Nonetheless, from the material presented here and other material available to the Commission, a number of things are clear:

Of the various overseas systems studied it could be argued that the idea of the village courts in Papua New Guinea has the greatest potential application for Aboriginal communities. The emphasis in village courts is on resolving disputes rather than as a criminal court, although they have a limited criminal jurisdiction. The courts rely on local custom rather than a written code, are locally administered and readily available to the people. They are not a substitute for the general courts but operate in conjunction with them. They do not create the jurisdictional problems that have arisen in the United States with Indian tribal courts. Furthermore, and perhaps most importantly, they are accepted by the people as 'their' court. The overseas experience confirms that it is rarely if ever possible to establish an official code or legal structure which accurately reflects the dispute resolution mechanisms operating within indigenous communities. Indeed, this has proved to be the case even of the village courts:

[Some] observers see the [Village Courts] Act as a bridge between custom and customary law and modern justice. Others in contrast, have emphasised the way the Act has set up new institutions and officials and uses non-traditional mechanisms and adjudication for settlement of disputes... In our view the second approach, that the Act establishes a new system of formal courts in villages, better reflects the Act as a whole, while the glowing prose on mediation ... describes one aspect of the total operations envisaged for the courts. [357]

Local courts for indigenous people can work, as the Papua New Guinea experience has shown. That they are not traditional institutions, and that they tend to become more formal over time are not fatal objections. But there are important differences between institutions established by and for an indigenous majority, as with the Village Courts, and institutions established, modified or extended for a small indigenous minority (as is the case with the Aboriginal courts and similar bodies so far tried in Australia). Even where these come to be accepted by the indigenous groups in question, their inherent tendency - in some cases their express intention - is to expand still further the operation of the general criminal justice system, with whatever modifications, into the lives of those concerned. This is also true of all the Australian examples of Aboriginal courts discussed in Chapter 29. In addition, specific features of Aboriginal social structures, with their diffusion of authority and their strong basis in kinship, present real difficulties in setting up courts which vest power in specified persons in all cases. For these and other reasons, the establishment of local justice mechanisms for Aboriginal communities presents distinct and difficult issues, which no transplantation of overseas experience can resolve. [358] These problems, and possible solutions to them, are discussed in the next chapter.

803. The Range of Options.
As is clear from the Australian and overseas experience described in the preceding chapters, many different structures have been adopted or proposed in response to demands for local justice mechanisms for indigenous groups. The limitations of some of these structures, and the extent to which they depend on local history and circumstances, will also have become clear. Nonetheless, proposals have been made for local justice mechanisms of different kinds for Aboriginal communities. [359] The range of options includes:

804. Criteria for Suitability.
Each of these options will be discussed in this Chapter. In judging the suitability of any existing or proposed structure for resolving disputes at the local level, a number of matters have to be considered. Some of these have been discussed in Part II of this Report and in the preceding chapters in this Part. They include:

805. Aboriginal Self-Management or Self-Determination.
The point has already been made that new structures should only be introduced with the full agreement of those affected. [360] As one oral submission put it:

This community [Strelley] could achieve a great deal in this area developing their own resources from within but dealing with the question of law and order and Aboriginal people, not only for Strelley but for the Western Desert area, given appropriate opportunities, but the opportunities have to dwell within the people themselves; they have to come from within the people. Only the Aboriginal people can solve the problem. [361]

A similar view was put by Mr David Hope, who questioned the extent to which the Pitjantjatjara perceive a law and order problem in their communities, and commented that decisions about what action, if any, should be taken, must be for the Pitjantjatjara themselves:

It would not be a question of the Pitjantjatjara working to an exotic legal base, but rather developing the particular institutional modes to suit their circumstances. This course would require from the Pitjantjatjara an initiative to seek answers through political negotiation, and that in turn would depend on their deciding really where issues in law and order come in their priorities. But that process will always be prejudiced if professionals are unyielding in the view that professional judgment has unchallengeable prerogatives in determining what is politically 'proper'. [362]

806. Administrative Feasibility.
Plainly, any scheme proposed needs to be a practical one, taking into account the diversity, smallness and (especially in remoter areas) decentralization of Aboriginal communities. [363] Care has to be taken to avoid introducing cumbersome administrative arrangements, possibly duplicating existing systems, with only marginal benefits. The Commission's work on this Reference has made it clear just how diverse and particular are the needs and requirements of the Aboriginal communities spread across Australia. Administrative practicalities are thus an important consideration in assessing particular proposals.

807. Due Process.
In Chapter 9, reference was made to the various internationally recognized human fights, prominent among which are due process rights. [364] For example, Article 14 of the International Covenant on Civil and Political Rights of 1966 guarantees important due process safeguards especially in criminal cases. They include:

It should be stressed that these guarantees are intended to operate in a very wide variety of circumstances, and in very different legal systems. It is necessary to read Art 14 as providing workable guarantees in cases of summary trial for minor matters as well as trial for the most serious offences. Obviously the requirements of the Convention will depend to a considerable extent on the context, the offence and other relevant circumstances. It cannot be argued that the establishment of local 'traditional courts' or similar mechanisms will necessarily involve breach of the Convention standards, provided appropriate procedural guarantees are established. [365] Such local tribunals may be the only alternative to existing courts of summary jurisdiction staffed (in some cases) by untrained non-Aboriginal justices of the peace. [366] In other words they may be an improvement on the only other available alternative. But basic standards of due process need to be maintained in courts and other officially established justice mechanisms.

808. Constitutional Constraints.
The Commonwealth Constitution imposes significant constraints upon direct federal action in establishing community justice mechanisms (whether in the form of courts or other bodies). This affects significantly what the Commonwealth could itself do in this area. In this Report constitutional and Federal-State issues have been left to be discussed in Part VIII, in the context of implementation of the Commission's proposals. But in this area the constraints are considerable, and they need to be briefly described here.

∗ Establishment of Federal Courts. If the Commonwealth wished to establish special Aboriginal courts to exercise some form of coercive jurisdiction in a State, such courts would have to be established in accordance with Chapter III of the Constitution. The judges of such courts would have to be appointed by the Governor-General in Council, would be removable only with Parliamentary approval, and would hold office until a fixed retiring age. [368] As federal judges they could only exercise judicial powers or powers properly incidental to judicial powers. [369] It follows that the Commonwealth Parliament could not itself set up indigenous courts along the lines of the Papua New Guinea village courts [370] to exercise judicial power in any of the States. Proposals for such courts characteristically envisage short-term or ad hoc selection or election of judges at the local level. It is also not clear to what extent the Commonwealth could give such courts a combination of judicial and mediatory or conciliatory functions.

∗ Modification of existing State courts. Alternatively the Commonwealth might seek to modify existing State courts in respect of their exercise of jurisdiction over Aborigines in appropriate cases, to take into account local traditions or processes. Modifications might be made in this way to ordinary courts such as magistrates courts or Supreme Courts exercising jurisdiction with respect to Aborigines, or to special courts such as the Aboriginal courts in Queensland. [371] Assuming that such modifications would be within power under s 51 of the Constitution, as legislation for the Aboriginal people affected (s51(26)) or otherwise, federal jurisdictional problems can still arise. The cardinal principle is that, while the Commonwealth can (by otherwise valid legislation) modify the procedures to be applied by State courts in their exercise of jurisdiction, [372] it cannot alter the 'structure' or 'constitution' of those courts. [373] A second limitation is that the Commonwealth Parliament may not vest non-judicial power in State courts, even if it would be consistent with their 'constitution' or structure to exercise such power. [374] Together these rules considerably restrict what the Commonwealth can do, and great care is needed in the formulation and drafting of any proposals (although more flexibility is possible than with special federal courts). Thus the Commonwealth could probably empower (if not require) a State court to sit with and consult Aboriginal assessors in appropriate cases, but clearly it could not give such assessors voting or decisional power. It could not require a court to sit in camera in all cases involving Aboriginal customary law, [375] although it could probably empower a court to adopt special procedures in such cases (including a power to sit in camera) in terms that would go some way towards preserving secrecy. [376] The Commonwealth cannot appoint judicial or other personnel to State courts [377] although it has some limited control over the composition of courts of summary jurisdiction exercising federal jurisdiction. [378] On the other hand other reforms in the rules of evidence and procedure, considered in Part V, present no particular problems since they do not involve the creation of special structures or the addition or substitution of personnel in State courts or agencies.

Establishment of Non-court Procedures. There may be scope for the establishment of non-court procedures in this field, and for consequent diversion away from State courts. For example a mediation scheme such as the New South Wales Community Justice Centres [379] does not involve any exercise of coercive or judicial power and could be established for an Aboriginal group or community by federal law, if this were otherwise desirable. Federal or State courts dealing with a case could be empowered or required to adjourn, pending attempts at mediation through such a scheme. The validity of any machinery of this kind would depend very much on the particular proposal: the central restriction is that no exercise of judicial power can be involved.

809. Forms of Local Autonomy.
The point has already been made [380] that one method, arguably the most direct and fundamental one, of dealing with local law and order matters is through the conferral on Aboriginal communities of powers of local self-government, allowing those affected to decide for themselves what (if any) changes are needed. There is an analogy with ordinary powers of local government. But given the remoteness of many Aboriginal groups, their special characteristics and the special problems facing them, and the principle of Aboriginal self-management or self-determination, there is no reason why powers should be confined to the existing range of local government matters. Exactly what those powers should be would be a matter for negotiation with the appropriate authorities. Framework legislation would be needed to allow for the exercise of a wide range of powers, pursuant to agreement with the community concerned. Proposals for Indian self-government along these lines have reached a relatively advanced stage in Canada; [381] in Australia, the Northern Territory Community Government Scheme is a smaller-scale version of this idea. [382]

810. Local Autonomy and the Commission's Terms of Reference.
There are difficulties in dealing with proposals of self-government or local autonomy in the context of a Reference on the recognition of Aboriginal customary laws. [383] Local autonomy or self-government involves a much broader range of issues. In one sense, if Aboriginal communities are granted local autonomy or a form of self-government the issue of recognising Aboriginal customary law does not arise. The decision as to what laws would apply within the community would be determined by the community. Aboriginal communities may well wish to devise new rules or approaches to cope with their problems: there is no reason why this should be confined to applying 'customary' or 'traditional' law. In the words of Dr Daniel Craig:

Regarding legal reform, therefore, the real issue is not recognition of customary law. Rather, it is whether or not Aboriginal communities should be given political and economic control of their own reserves. An answer to this question of local control will solve many of the problems regarding the place of customary law in both traditional and non-traditional reserves. [384]

In Australia, 'Aboriginal affairs' has usually been seen not as raising questions of self-government or local autonomy but as involving a series of more-or-less distinct 'problems' of Aboriginal 'welfare', of appropriate 'services' to be provided, of 'programs' for Aboriginal advancement. The way the present Reference was formulated is very much an illustration of the latter approach. To doubt the adequacy of this approach is not to deny the need for services or programs adapted to the special needs of Aborigines (as of others in need). A case for the recognition of Aboriginal customary laws can also be made on its merits, as this Report seeks to do. But even when particular programs or services can be seen as an aspect of Aboriginal self-management or as a recognition of Aboriginal traditions or customary laws, they are inherently partial and tangential to the underlying question of autonomy. For present purposes, it is necessary not to confuse particular proposals for local justice mechanisms -- including proposals from Aboriginal communities themselves - with these broader questions of self-government. By-law and similar powers are considered in this Part in the context of proposals for local justice mechanisms within Aboriginal communities, rather than in the wider, and more significant, context identified here.

811. By-Law Powers.
Another way in which Aboriginal communities may exercise control over law and order is by having the power to make local by-laws. In a sense this power is an aspect of local autonomy. Its scope however may be broad or narrow. Bylaws could be enforceable in a local Aboriginal court, or other form of local justice mechanism, or they could be enforced in the magistrates courts in the usual way (as with the Northern Territory Community Government Scheme). The Aboriginal courts in Queensland and the Aboriginal Communities Act Scheme in Western Australia are examples of the former, although in both States the by-law making power is strictly circumscribed. Providing Aboriginal communities with by-law making powers gives them the opportunity to pass laws which they see as relevant and necessary. These may include aspects of their customary laws. Some communities have requested such powers (e.g. Angurugu), [385] but do not want the additional responsibilities of running a court to enforce such bylaws. However if by-laws were passed which included aspects of Aboriginal customary laws to be enforced in magistrates courts, procedures would need to be set up to ensure the views of local Aboriginal communities were made known to the courts. [386]

812. Basic Features.
Several kinds of local courts have been described in this Report, including the Queensland and Western Australian schemes, the Papua New Guinea Village Courts and the Indian tribal courts in the United States. Each essentially involves the enforcement of local by-laws by courts staffed by persons appointed from (though not always by) the local community. While such by-laws could be expected to reflect local customs and practices it is only in the Papua New Guinea village courts that indigenous customs and practices are applied to any significant extent. [387] Essentially in each of the jurisdictions mentioned the indigenous courts are modelled on the common law court system at its lowest level of the magistrate's or justices court. Is such a system appropriate in Australia?

813. Support for Aboriginal Courts.
In submissions to the Commission and in its fieldwork, the Commission has received very few requests from Aborigines for Aboriginal courts to be established. [388] There may be a number of reasons for this, but there certainly does not appear to be any groundswell of Aboriginal opinion in favour of such courts. [389] The Commission has however received several well-argued submissions from non-Aboriginal persons in favour of such courts. [390] Professor Kevin Ryan made the general observation:

There is, I believe, much to be said in favour of the general idea of making aboriginal communities responsible for the administration of a set of rules which will apply to their members, and this implies that they must be invested with police powers, with judicial powers, and with powers of punishment. [391]

Mr Henry Wallwork QC, who had originally opposed the scheme set up in Western Australia, changed his mind after the scheme had been operating for some time:

It now seems however that these courts and law enforcement procedures allow the traditionally oriented Aborigines to retain their racial identity and traditional lifestyle even if they are not traditional forms of dispute settlement .... It may be that what is more important than the preservation of customary law is the giving of law making and law enforcing powers to Aboriginal communities in order that they may control crime and disorder within their areas by the use of the general Australia laws adapted to those communities. [392]

Mr AR Welsh, who has had extensive experience with village courts in Papua New Guinea and who worked for several years with the Department of Aboriginal Affairs in the Northern Territory, argued strongly for such a scheme. He suggested that 'the absence of a community or village level dispute settling mechanism backed by law is presenting a serious handicap in promoting the welfare and development of the [Aboriginal] people'. [393] In his view:

The fact that Aboriginal Communities cannot control their members adequately in the absence of Government-backed support for participation in their own law and order is not necessarily an indication that this situation would continue to exist if such backing were introduced. Indeed I feel the lack of social control within certain Aboriginal groups is largely due to Government refusal to grant adequate powers and responsibilities to the traditional leaders of such groups. [394]

He concluded that a village court system is appropriate and could be set up in Aboriginal communities in the Northern Territory:

Providing that legislation takes account of the actual customs of the people it covers there is no reason to suppose that Aboriginal groups are incapable of participating in law enforcement and the administration of justice. In fact there is already evidence that Aboriginals are not only capable of such participation, but that they are also capable of properly exercising legislative functions (NT Land Councils and Queensland Aboriginal Councils) ... I believe that if the same legislation for Village Courts existed in the Northern Territory I would have no problems in setting up courts at say Yirrkala or Warrabri... [395]

Professor Goldring has also suggested that the Papua New Guinea village court model should be applied in Australia:

It is therefore suggested that official sanction be given to traditional dispute-settlement bodies within traditional aboriginal communities, similar - and if possible with fewer bureaucratic requirements - to that accorded to the traditional dispute-settlement in PNG. The law should also provide that if a person has been dealt with by such a 'village court' acting within its jurisdiction, he should be immune from further proceedings in any other court in respect of the same matter or transaction. [396]

814. Contrary Arguments.
On the other hand Mr Noel Wallace, who has worked with the Pitjantjatjara people in South Australia, argued against the village court model'

There is no possibility that unbiased justice would be received under similar circumstances with the Western Desert people, due to kinship obligations. [397]

Mr Gerry Blitner, then Chairman of the Northern Land Council, was also not in favour of Aboriginal courts. In the context of local application of customary laws he commented:

This way [setting up Aboriginal .courts] it would not function, because we have our own identity. This is what has happened in some areas [Queensland] and they have ... lost their identity. [398]

One reason repeatedly given for rejecting Aboriginal courts, especially in traditionally oriented communities, was the need to appoint particular persons to exercise judicial authority. Mr Pauling SM commented that appointing Aboriginal justices of the peace would cut across existing family and authority structures, [399] a view echoed by Mrs L Lippmann:

Setting up of separate formalised courts on settlements might tend to destroy the standing of the traditional bearers of authority (as the training of Aboriginal JPs in traditional areas has tended to do), thus leaving Aborigines once more to receive the worst of two worlds. [400]

Ms Pam Ditton, in a submission to the Commission prepared after some time working in tribal courts in the United States, commented that:

In those areas where the Aboriginal people continue to run their own affairs by their own traditional unwritten law I do not see any system of tribal court along the lines of anything I saw in the [United] States as being other than a total disaster. [401]

In her study of the Aboriginal Justice of the Peace scheme in Western Australia, Hoddinott pointed to what she saw as serious shortcomings in the scheme. But in her assessment the one community in which the scheme works effectively is the least traditionally oriented:

The Beagle Bay Aboriginal Community is, in some ways an exception to the general flawed operation of the JP Scheme. Although the community does not practice tribal custom there is a strong sense of community cohesion and re-identification as Aboriginal ... Many Aborigines living at Beagle Bay have a reasonable command of the English language and a fair understanding of English law ... The JP Scheme has added to the new sense of community identity and JP's have few problems applying the Aboriginal Communities Act. [402]

Aboriginal courts may well be effective in some Aboriginal communities, particularly
those which have undergone the greatest changes with respect to their customary laws.

815. The Law to be Applied.
Official Aboriginal courts need not only apply local customary laws. The law applied could be the general law, or it could incorporate or take account of valued customs and traditions. As Dr Maddock pointed out:

It may be that [Aborigines] will simply wish to be authorized to apply their own laws and practices, the range and content of these to be determined by themselves in their own way as occasion for it arises. On the other hand, it may be that some communities would wish to draw up a code of rules to be observed, the implication being that uncodified rules would not be obligatory upon members of the community in question... Should a code of substantive rules be favoured, however, it would be necessary to ask oneself whether it is reasonable to expect a community to produce a list of rules governing the entirety of the conduct of members together with an indication of how to weigh them against each other in cases of conflict between members who were invoking different rules. [403]

A submission from a National Police Working Party was in favour of local community by-laws with a wider content:

Aboriginal communities should participate in determining local community by-laws. These provisions should especially relate to the problems arising from the interaction of Aboriginal tribal society with the broader Australian society and some of the 'lower order' customary offences. [404]

While by-law schemes raise wider issues of the area, unit and content of self-government, and should not be treated as restricted to 'law and order' issues, [405] it is clear that the law to be applied in Aboriginal courts cannot be limited to Aboriginal customary laws. The law to be applied should include both aspects of customary laws (if local Aboriginal people want this) and of the general law.

816. Lessons from the Western Australian Scheme.
One scheme which attempts to address at least the more obvious difficulties with Aboriginal courts has been the Western Australian scheme, described already. [406] The scheme is similar to the usual court of summary jurisdiction, but it is, partly at least, run by Aborigines, and has the advantage of being locally based. Its supporters suggest .that the scheme as established accords with Aboriginal traditions and ways of doing things:

In this way, Justices from the appropriate section by virtue of their status with particular offenders should normally be available to deal with them as they would be in Aboriginal law. [407]

Mr Terry Syddall MBE, the architect of the Western Australian scheme, commented that it has been very successful:

It seems likely that their involvement will contribute towards a harmonisation of relationships on a much wider scale by reducing resentment felt when a law alien to their culture is administered by Europeans. Moreover, by administering European law to their own people, traditional constraints such as 'shame' are automatically invoked against offenders.

This gloss is absent where proceedings are administered by Europeans. Further, it is likely that non traditional offences contained in by laws such as those relating to alcoholic liquor will become 'Aboriginalized'. [408]

A similar view has been expressed to the Commission by the present magistrate, Dr John Howard SM. The result, on this view, has been a synthesis of local customary law and the by-laws, such that the community at La Grange refer to the new law as 'Bidyadanga Law'. [409] Mr Syddall commented that the process of synthesis would be inhibited if persons appearing before the Aboriginal justices are allowed legal representation. [410] On the other hand, it has been argued that an Aboriginal justice of the peace, hearing an offence against community by-laws and sentencing the defendant, if found guilty, to a fine or gaol, cannot be said to be dealing with a person as he would under Aboriginal law, even if by coincidence he stands in the right relationship to the defendant and has a personal responsibility to deal with him as a wrongdoer. The conclusion of Associate Professor Getches was that:

they [the Yirrkala proposal and the Queensland and Western Australian Aboriginal courts] all suffer from an attempt to appear indigenous when in fact they are transplants of Australian values and authority (very little authority at that) in native communities and hands. They do not apply or defer to Aboriginal law ways. [411]

On this view, such courts are assimilationist in their underlying philosophy and are likely to have an undermining effect on Aboriginal customary law and its processes. [412]

817. General Conclusion.
After considering the submissions received and examining the relevant Australian and overseas experience, the Commission does not recommend a general scheme of Aboriginal courts for Australia. The Village Courts in Papua New Guinea have been generally successful, and it is possible that similar bodies might be suitable in some Aboriginal communities. But the wholesale transplanting of such a scheme is unlikely to be successful. There is simply no indication that this would be welcomed by, or be workable in, the diverse range of Aboriginal communities. The Village Courts scheme requires a central secretariat and machinery for supervision which, though necessary to cope with the considerable demand for village courts there, is unlikely to be practical in Australia. Local law and order is only one of a number of areas where Aborigines may seek to exercise local authority, and not necessarily the one to which they would attach the highest priority. Establishing elaborate machinery, with framework legislation, focussing on local courts and law and order issues would tend to bias decision making. It is better that such questions be considered in the broader context of proposals for local self-government, referred to already. [413] However, this conclusion does not mean that particular local courts or other bodies should not be established in response to genuine local demands or initiatives, or that existing courts should not be retained if the local community so wishes. But certain basic standards should be applied to local Aboriginal courts officially established. The standards should apply both to existing Aboriginal courts such as those in Queensland and Western Australia, and to any similar bodies which may be created.

818. Basic Standards for Aboriginal Courts.
Notwithstanding the criticisms directed at both the Queensland and Western Australian courts they appear to have some degree of local support, and are likely to continue to exist for the foreseeable future. In line with the principles discussed already, [414] there are a number of important requirements for the acceptable working of such courts. These requirements have taken into account the basic criteria for the suitability of community justice mechanisms outlined in paragraph 804-808.

819. Introduction of New Aboriginal Courts and Similar Bodies in Particular Communities?
With changes of this kind it may well be that existing Aboriginal courts in Queensland and Western Australia will achieve a measure of general acceptance and utility which they have not always had so far. But it is another matter to advocate the extension of Aboriginal courts to other communities, let alone to make comprehensive provision for such courts. As has been pointed out already, local powers over law and order matters are best dealt with in the broader context of local self-government. [419] So far as a general system of Aboriginal courts is concerned, there is no indication that this would be welcomed by, or workable in, the diverse range of Aboriginal communities. [420] However one possible exception to this generalisation is the so-called Yirrkala proposal, which is the only worked-out proposal submitted to the Commission for a separate formal local justice mechanism, proposed by or on behalf of an Aboriginal group.

820. History and Development.
Yirrkala is an Aboriginal community in North-East Arnhem Land (NT). [421] The Yirrkala model was developed over a number of years with the assistance of Dr HC Coombs and Dr Nancy Williams. People at Yirrkala first raised the possibility of administering law and order within their community in 1974 and made representations to the Commonwealth Government to this effect. [422] There were discussions with judges and magistrates, and senior members of the community visited Kowanyama (Qld) in 1977 to observe the Aboriginal court there. [423] Since 1977 the Commission has received a number of submissions from Yirrkala, [424] including notes for legislation for the scheme and for related rules and procedures. Commission staff have discussed the proposals with members of the community on a number of occasions.

821. Two Councils.
The intention of the scheme is to rely on traditional ways of settling disputes and restoring order but to institutionalise the procedures so that they fit within the general legal system. The scheme envisages the use of Councils, some of which are already in existence. One, an administrative body (the Dhanbul Association) elected by all adult members of the community, is responsible for the day-to-day administration of the community. Another, a Law Council (the Garma Council), comprises two senior men [425] from each constituent clan chosen by the clans in their own way, and relying as far as possible on the established authority structure. Other councils or incorporated bodies [426] may also be formed,' but the leaders see Garma Council as providing the focus for all matters of law and order. The Garma Council would have responsibility for such matters as:

(a) the preservation of friendly relations between the constituent clans which make up the community;

(e) the relationship with judicial, law enforcement and similar agencies of the Commonwealth and the Northern Territory. [427]

822. Community Court.
Although the Garma Council would be responsible for local justice it would not itself sit as a court, but would specify the persons who should constitute 'a community court' in each case. Disputes may be resolved by agreement, but where this could not be achieved a court would be appointed, the membership being determined by the nature of the issue and the persons involved. There would be no office holders (such as justices of the peace or magistrates), so that no new authority structures would be imposed. The likely composition of a court where it was needed would be:

The composition of the court would presumably vary if an Aboriginal person from outside the community was involved in the dispute or if a non-Aboriginal person was involved. The court would hear matters in public, and upon reaching a decision would report to a community meeting for final approval. Court records would be maintained setting out the cases heard, the decisions reached and the penalties imposed.

823. Interaction with General Legal System.
While the Garma Council and the community court would operate as an independent entity, there would be a considerable degree of interaction with the general legal system:

if a magistrate or judge has before him a case involving a member or members of the Yirrkala community the magistrate or judge should authorise the Council to set up a Community Court to conduct a preliminary study of the case and see whether a consensus settlement of the case is practicable by the community's own procedures. The outcome of this preliminary study would be reported to the magistrate or judge. The Council accepts that the magistrate or judge would not necessarily be bound by that outcome but expects that weight would be given to it. [428]

Where such a preliminary hearing was not undertaken, for whatever reason, certain persons from the community would sit with the magistrate or judge to advise him about such matters as the facts of the case, attitudes to the issues, any Aboriginal traditions involved and the form and degree of the compensation or punishment.

824. Scope of the Scheme.
The Garma Council considers that it should have some say in all offences or disputes involving community members. This would not necessarily mean that the Council would itself deal with all such matters. It may prefer to call in the police or refer matters to a magistrate, in which case the general law and procedure would apply. This could occur, for example, where a serious offence was involved (e.g. homicide) or an inter-clan conflict was in danger of getting out of control. However, even in these matters the Garma Council would expect there to be some continuing consultation with the outside law enforcement authorities.

825. Other Functions of Garma Council.
In addition to having responsibility for constituting a 'community court' it is envisaged that the Garma Council would be responsible for appointing persons with police functions within the community's boundaries, establishing rules to operate within the community to maintain social order, appointing persons to oversee and carry out any punishments imposed by the 'community court' and advising magistrates in cases involving members of the community.

826. Punishment and Compensation.
A range of sanctions has been proposed for the community court:

7. overnight imprisonment in a 'lock-up' situated at the community.

Great emphasis is placed on compensation as a way of resolving disputes. This is in line with what may be an increasing trend in many Aboriginal communities for the greater use of compensation, usually in the form of money payments. In earlier submissions from the Yirrkala community powers for the community court to impose some traditional physical punishments was sought but with a right of appeal:

(f) ... that he be punished in a way traditional in Aboriginal law - but if the accused person believes the punishment would be too severe he may ask that a magistrate be asked to say whether some other punishment should be given. [430]

In a more recent submission the request for powers to impose physical punishment was omitted. [431] Dr Coombs argued in a separate submission that the original proposal should be accepted and that the Yirrkala community court should be allowed to impose spearing (which, he points out, is willingly accepted by the person being punished) but with provision for an appeal to a magistrate or judge. [432]

827. Imprisonment?
Power to order imprisonment, apart from overnight detention, was not requested for the Yirrkala community court. Sending a person to gaol in Darwin is not regarded by many as a punishment and in some instances can lead to disputes being exacerbated or going unresolved while the person is away in gaol. Because the gaol is situated in Darwin, the prisoner is removed from his family support (and restraint) mechanisms into an environment which often has detrimental affects.

Almost invariably he returns to the community with imprisonment having had no rehabilitative effect. Periods of imprisonment - provided they are not too lengthy - may indeed provide a life with more amenities than available at home. Such persons are often in further trouble within a short time after release, thus aggravating law and order problems in the community and confirming local views that gaol is of no value. [433]

828. Matters to be Resolved.
The documentation prepared by and on behalf of the Yirrkala people outlining a community justice mechanism was intended to provide a framework for discussion rather than a definitive model. The initial proposal has been modified in the light of further discussion and reconsideration. Representatives from the Commission have visited Yirrkala to discuss the proposal. [434] These discussions, though helpful, revealed a degree of frustration on the part of some people at Yirrkala at the perceived lack of progress over the proposals originally put forward many years previously. The Aboriginal leaders with whom discussions were held were confident of their ability to make the scheme work and perceived it as their problem to worry about any detrimental effects. [435] But it was acknowledged that a number of matters remained to be resolved. These relate to the jurisdiction of the community court, to the degree of acceptance by members of the community of the powers of the Garma Council and community court, and to the range and administration of punishments. None of these problems is beyond resolution, but those who come into contact with the scheme will need to be clear about how it is to operate. For example, would persons living on homeland centres around Yirrkala be subject to its jurisdiction at all times or only when visiting Yirrkala? Some homeland centres may be reluctant to bring themselves within the jurisdiction of the community court. Should they be given the fight to opt out or will this undermine the entire scheme? [436] The increase in the number of persons (including members of the Garma Council) moving from Yirrkala to homeland centres raises the practical question of how often the Garma Council will meet (or 'want to meet) in order to consider law and order matters. If attending meetings involved significant travel it is likely that only more serious matters would justify bringing the Garma Council together. A further issue is the relationship between community security men and the Northern Territory police. For example, if someone from Yirrkala called the police for assistance should they attend or refer the matter to the local security men? Such issues need to be considered before any scheme is implemented, as they may be crucial to its success.

829. Jurisdiction.
The Garma Council has sought the power to deal with all law and order problems at Yirrkala. It would thus include both minor and major offences. However in discussions with the Commission the leaders were prepared, though reluctantly, to accept that at least initially, the jurisdiction of the community court should be limited to less serious offences, and that major offences such as murder, rape and serious assaults would be dealt with by the ordinary courts (although the Garma Council should be consulted by the Court on sentence). There was however some reluctance about accepting this limitation, with the favoured option being that all cases should be processed through the Garma Council first, even if later referred to a magistrate or judge:

It has to be the Garma first, always Garma first, and the Balanda law comes second, advising about the Balanda law. [437]

830. Community Acceptance.
A key issue is the acceptance by members of the community of the proposed system. While it may not be unreasonable to expect individuals to abide by the new rules if they seek to reside in the community, some safeguards would be necessary; for example, an opting out provision (involving choice of trial in the magistrate's court), or a right of appeal. Article 14(5) of the International Covenant on Civil and Political rights provides that a person convicted of a criminal offence should have the right to have the conviction and sentence reviewed by a higher tribunal according to law. Both opting out provisions and rights of appeal to outside authorities would tend to undermine the status of the Garma Council and the community court, especially if opting out was common, or if appeals were regularly upheld. Of the two, a fight to opt out is likely to be more damaging, since it prevents the exercise of local authority at all. Appeals could be expected to be rare, and there are established ways by which appeal courts defer to decisions taken by courts at first instance on issues of fact, discretion (including sentencing) and local community standards. Provided appeal courts exercise their powers wisely, there is no reason to expect that a right of appeal would undermine the system or frustrate the purposes it is intended to achieve.

831. Other Issues of Concern to the Yirrkala Leaders.
In a submission to the Commission in September 1985 the clan leaders at Yirrkala repeated their wish to have the Yirrkala Scheme implemented. The specific concern raised in this submission was not the day to day law and order problems confronting the community, but rather the degree of control the clan leaders were able to exercise over their land, including permission to enter and the use of resources. There was also concern over control of their own people and their culture outside Aboriginal land:

The Garma Council should also be recognised as having control over Yolngu persons and the use of Yolngu culture outside the Yolngu area, and if any financial benefit accrued, it should be directed to the Garma Council for disposition. The Garma Council should have brought before it all persons, including non-Aborigines, who enter Yolngu land and/or use its resources, and it should have the power to apply sanctions (generally compensation or fine) if appropriate. Compensation is the type of sanction most likely to be applied, although the Garma council should have the power to use other sanctions. [438]

The authority to control Aboriginal people and culture, and entry to and activities on Aboriginal land, raises many of the questions of autonomy and self-government discussed in paragraphs 809-811. It also raises questions as to the operation of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and the Aboriginal Land Act (NT). However the issue of control of Yolngu persons and Yolngu culture outside the Yolgnu area is more complex. Attempts to protect Aboriginal culture have been made in both Federal and State legislation. The various Acts protecting Aboriginal sacred sites and the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1983 (Cth) are examples of this. [439] The Commission recognises the importance of Aboriginal land and the protection of Aboriginal culture.

But these matters are outside the Commission's Terms of Reference and are not dealt with in any detail in this Report. [440]

832. Assessment and Recommendations.
The Yirrkala scheme is more elaborate and seeks to rely to a far greater degree on traditional mechanisms than the Western Australian or Queensland schemes. It would, it is hoped, combine aspects of a court enforcing local laws with traditional authority structures. The principal feature of the scheme is that it is an Aboriginal initiative, although there has been outside assistance in articulating and presenting it and in spelling out some of the details. Though there are difficulties on particular issues, and a number of matters to be resolved, in the Commission's view the decisive factor is the combination of:

It is clear from the submissions received from the Yirrkala community and from discussions the Commission has had with the clan leaders at Yirrkala that one of their major concerns is the way the general legal system operates for Yolgnu people. The clan leaders are not seeking the exclusion of the police and the courts from their land. What they are seeking is an input into the general legal system and a recognition by the general legal system of local Aboriginal customary laws and mechanisms. To some extent these needs may be met by the introduction of the scheme operating at Galiwin'ku. [441] But even if steps are taken to set up this scheme at Yirrkala the Commission believes that serious consideration should be given to adopting the scheme developed by the Yirrkala people on a trial basis. Assuming that the appropriate authority is the Northern Territory Government, [442] it is recommended:

If this is to occur it is important that the proposal be implemented in a thorough-going way, and with as few derogations from the model sought by the Yirrkala people as possible.

833. Local Mediation Panels.
Proposals for local justice mechanisms which do not involve the exercise of judicial power but focus on mediation and conciliation and a greater voice for Aborigines in the existing criminal justice system pose fewer problems of implementation than proposals for 'Aboriginal courts'. [444] Either as an alternative to courts or in addition to them, local mediation panels might be established to help resolve disagreements and disputes involving Aborigines. The Community Justice Centres in New South Wales perhaps provide a model, which need not be limited to remote Aboriginal communities but may be also appropriate in cities and country towns. [445] They would also not have to be restricted to inter-Aboriginal disputes. The Aboriginal courts in Queensland have specific powers [446] to hear and determine disputes and to do so 'in accordance with the usages and customs of the community within its area. [447] How much this power is used will depend on the level of community acceptance of the Aboriginal court as the appropriate forum for local disputes. It may be considered preferable to keep such disputes outside a public forum of this kind.

834. Demand for Such Forums?
The Commission has received very few submissions arguing for this type of forum. The discussion of dispute resolution at Edward River suggests that disputes sometimes escalate, leading to offences and injury to people because there is no appropriate forum for persons to work out disagreements. [448] It has been suggested that some members of the community are looking for alternative ways to resolve local disputes. A submission to this effect was made to the Commission by members of the Kowanyama Community:

where arrests were made because of fights either within or between families, the best way to deal with the matter would be to conduct a conference involving the families of the persons fighting so that they might settle their differences rather than bringing individual offenders before a court for the purpose of punishment. [449]

On the other hand, it may be that in the more traditional Aboriginal communities there are already ways available to work out inter-Aboriginal disputes, and that a mediation panel is more suitable for other less homogeneous communities. In either case, support could be given to such mediation schemes both administratively, and through a legislative provision allowing courts to defer to the operation of such schemes (e.g. through adjourning proceedings in appropriate cases). [450]

835. Major Areas of Concern.
With few exceptions, Aboriginal communities have not, so far as the Commission is aware, sought to have separate or independent justice mechanisms officially established. Though the various problems of local law and order facing many communities are well-known, and cause much concern, members of those communities have not sought to resolve them by excluding the criminal justice system or establishing alternative mechanisms.

They have however, sought a better working relationship with the police and the courts. [451] Professor Stanner expressed it in these terms:

In my opinion, if a remedy could be found for the shortfall or miscarriage of justice which now affects Aborigines, either because of their incomprehension of their situation when under charge, or because of the misprisal by our functionaries of Aboriginal viewpoints and motives and sense of responsibility, there would be little difficulty in the criminal law area... It is my impression that amongst Aborigines I know well the certainty and relentlessness of the process of the criminal law are not resented. What is resented deeply is the arbitrariness, the use of violence, the impatience and the boorish neglect of Aboriginal rules of privacy, decent conduct and respect for persons and authorities so often shown by the process of our criminal law. [452]

Those concerned in the administration of the criminal justice system need to be more sensitive to the special problems facing Aborigines and to take into account Aboriginal customary laws. [453] For example the South Australian Police do not pursue prosecutions where tribal spearings have occurred as a form of tribal punishment 'providing the spearing relates to a strict tribal custom and no complaint is made to police by the victim'. [454] This is one form of administrative recognition of Aboriginal customary law. Other proposals of this kind have been put forward. Many relate to questions of policing, both in terms of relations between Aboriginal people and the police, and proposals for 'Aboriginal police' of various kinds. The police are, in a special position as the first point of contact with the criminal justice system. They are considered in detail in the next Chapter. But discussion should not be limited to the police. Judges, lawyers and others involved in criminal justice all need better information and education in relation to Aboriginal customary laws. The Galiwin'ku Scheme [455] established in the Northern Territory as a pilot project is one attempt to do this. It has at present no statutory basis but relies on flexible procedures to accommodate local needs. Much can be achieved towards the recognition of Aboriginal customary laws and satisfying Aboriginal demands in this regard by simple administrative measures of these kinds.

836. Policies of 'Aboriginalisation '.
One idea often suggested in the present context is a policy of increasing the number of Aborigines holding decision-making positions within the criminal justice system. This envisages the appointment of Aboriginal justices of the peace, Aboriginal magistrates and Aboriginal support staff in the courts, as well as Aboriginal police officers. It implies also the training of more Aboriginal lawyers. It is argued that, to avoid the alienation and hostility which is a feature of relations between Aborigines and the criminal justice system, Aborigines should be involved in the system in roles other than as accused persons. More Aboriginal justices of the peace and magistrates will, it is said, make the system more understandable and less alienating.

Aborigines may come to perceive the criminal justice system as something other than as a non-Aboriginal dominated structure over which they have no input or control. The assumption is that no significant changes can, or perhaps should, be made to the existing legal system, but that Aborigines should as far as possible perform judicial and other functions, at least at the lower court level. This policy received strong support from a National Police Working Party which made detailed submissions to the Commission on this Reference. The Working Party commented that:

Aboriginalisation within the police and court structure should be a long term aim and that in the immediate term efforts should be made to place suitably qualified personnel within the judicial process in areas where there are Aboriginals, on a regular and frequent basis. [456]

The Queensland State branch of the National Aboriginal Conference also supported 'Aboriginalisation':

There are few Aboriginal and TSI Justices of the Peace and magistrates are often ignorant of the cultural influences which shape the behaviour of Aboriginal and TSI people... [T]he process of 'Aboriginalisation' of the law system [should] be rapidly achieved through such actions as training and appointing Aboriginal and TSI Justices of the Peace, stipendiary magistrates, jurors etc. [457]

The concept of 'Aboriginalisation' of the legal system also received indirect support from the Groote Eylandt Aboriginal Task Force:

The appointment of an Aboriginal Justice of the Peace from each community would serve to increase community provision of judiciary processes. Moreover each community would have a point of access into the judicial system. [458]

The Report also recommended the appointment of Aboriginal police aides and in the longer term more Aboriginal police officers. [459]

837. 'Aboriginalisation' as a Solution.
The appointment of Aborigines as justices of the peace and magistrates is unlikely to go very far towards reducing the number of Aborigines coming into contact with the criminal justice system, nor does it go any way towards the recognition of Aboriginal customary laws. Taken alone it seems an insufficient response to the present situation. Moreover, quite apart from considerations of practicality (including the 'diversion' of the relatively small number of qualified Aborigines from other positions and areas of concern) the history of 'indigenisation' as a policy in other countries with ethnic minorities is not encouraging.

In my experience here [United States] both judges and police are placed in an impossible situation in tribal communities .... , kinship obligations and professional duties inevitably come into conflict. One of three consequences can be expected: (1) the law-enforcer becomes an outlaw in his own community and identifies increasingly with external authority; (2) the law enforcer respects kinship obligations to his own clan or family, upsetting the entire balance of power in the community and destabilizing it; or (3) law-enforcers have to be imported from other communities, in which case they are little better informed than whites. 'Indigenising' conventional law processes is almost always futile. [460]

The Western Australian Scheme is a form of 'indigenisation' and relies on the appointment of local Aboriginal justices. The local court at Aurukun in North Queensland is run by Aboriginal justices. Aboriginal justices of the people have previously been appointed in both city and country areas. [461] In the Northern Territory some years ago 2 senior Aboriginal men were appointed as justices to sit with the magistrate when he visited their community on circuit. [462] The system eventually became unworkable as the justices found it increasingly difficult to avoid obligations to kin and would often be expected to speak on behalf of their family or clan if one of its members appeared in court. The judicial system should as far as possible reflect the ethnic mix of the population, but a concerted policy of 'indigenisation' or 'Aboriginalisation' will not solve the problem of Aborigines within the criminal justice system, nor is it a form of recognition of Aboriginal customary laws.

838. The Search for Solutions.
While it is possible to draw up various models of justice mechanisms for Aboriginal communities, and to point to potential difficulties and shortcomings, it is not possible to predict the likely success of any of them. Certainly it has become clear that there is no one solution or straightforward answer to the question:

to what extent Aboriginal communities should have the power to apply their customary law and practices in the punishment and rehabilitation of Aborigines.

To expect Aboriginal people to have worked out a coherent approach to reform is unrealistic. The only possible response to this aspect of the Commission's Terms of Reference is to present various options and to initiate, or further, the process of discussion and consultation with a view to the eventual introduction of agreed proposals. Whatever longer term solutions are arrived at in terms of Aboriginal control or autonomy, problems of law and order for Aborigines and their communities, their relationship with the general legal system and the resolution of customary law matters remain. It does appear that changes to the general legal system can be made to reduce its impact on Aborigines, at least to some extent. Suggestions which have been canvassed in this Part include:

Among these various options there can be no single preferred approach. The decision as to what are the most appropriate alternatives for Aboriginal communities mast rest with those communities. But assistance is likely to be required to ensure that Aboriginal groups and organisations are fully informed of the various options, to enable them to make an informed choice and to assist with questions of implementation.

839. A New Agency?
One way in which assistance might be given is to establish an agency, similar to the Secretariat which services the Papua New Guinea village courts. This Secretariat, established before the village courts came into existence, is responsible for overall planning, to explain the courts to the people and to train the village court magistrates. The Secretariat has the following functions:

to extend the Village Courts system throughout the Nation where desired by the people, and ensure the effective and efficient operation of the system by monitoring the operation of the courts, co-ordinating, assisting in, and rationalising supervision and inspection, liaising with different departments, authorities and agencies, training Village Court Officials and support personnel, supplying advice and assistance where necessary, and providing general administrative services. [464]

A similar agency could perhaps be established in Australia, [465] but it would need to have a wider range of responsibilities, not limited to dealing with Aboriginal courts. Its task might involve liaison with Aboriginal communities, groups and organisations, supplying them with information and the resources to enable them to make a considered decision about justice mechanisms and other measures to overcome problems with the law. The agency could assist in drafting proposals, and with questions of implementation, although this would depend on the constitutional basis on which it was established. It could also have a continuing function of overseeing the various schemes established, considering modifications to existing schemes or the setting up of new ones. The Report of the South Australian Customary Law Committee on Children and Authority in the NorthWest recommended the establishment of a North-West Policy Bureau 'to provide the
Government with policy advice and to review matters affecting the North-West without prejudicing Pitjantjatjara autonomy'. The Report suggested that the Bureau would have a number of functions which would include:

[to] record and evaluate development, and where appropriate, co-ordinate proposals and initiatives as they emanate from Government (State and Commonwealth), semi-government and community sources. [466]

840. Potential Dangers.
There are a number of disadvantages in establishing such an agency. The most important is that it may artificially create expectations or generate interest for schemes or proposals which are not genuinely sought or needed. Aboriginal communities may feel under some pressure to become involved in considering new proposals merely because such options are available. The agency would also have to ensure that it did not take over decision-making responsibility or become just another arm of government dealing with Aborigines. There is the related difficulty that some Aborigines may be led to believe that the answers to their problems lay beyond their own societies, in the adoption of non-Aboriginal institutions and ways of doing things. Associate Professor Barsh, drawing on wide experience of indigenous peoples in the United States and Canada, counselled against the too ready acceptance of this approach:

I am concerned by the number of communities that told the Commission they wanted uniformed police and real judges. That was exactly what was happening in the US in the 1920s, when Indian leaders began pressing for the right to have (what they perceived as) real governments. They were overawed by the apparent effectiveness of white institutions. After a generation, they found that white institutions weren't working well in their communities, and began blaming themselves for the failure ('we just don't know how to run a good government'). By the 1970s, tribes discovered that white institutions hadn't worked all that well in white society, either. By that time it was too late to undo much of the damage wrought by zealous law enforcement and the rise of a juridical-administrative elite. Similar problems are developing in Greenland. Inuit leaders seem intoxicated with the apparent sophistication and power of Danish institutions, and reproduce them anxiously. [467]

Indigenous courts are almost invariably modelled on the general legal system or rather its lower echelons They may commence with flexible procedures, but they tend to become more formalised and legalistic. Perhaps this is inevitable. It certainly appears to have the effect of undermining customary laws and practices. Aborigines need to be fully aware of those dangers.

841. A Non-Government Approach?
An alternative approach to establishing a federal agency was put by Dr Coombs. He suggests that a body such as ANUTECH (a subsidiary of the Australian National University set up to carry out commissioned research) could be a point of first contact to provide advice to Aboriginal organisations about what information or resources are available and how access might be obtained. Some work would be done on a commercial basis but other work might be done by academics with a research interest in an area with only expenses being paid. Dr Coombs points out that the Australian Conservation Foundation has a comprehensive panel of experts who work in this way on environmental issues. He suggests the following structure'

Composed of Aborigines with some research experience available in city where organisation is

located. If Canberra, Aboriginal research managers of AIAS and NAC, NAILS, NAIHO.

Composed of academics with experience in fields of knowledge relevant to Aboriginal needs, law, organisation, health, archaeology, anthropology, land use, environmental and socioeconomic impact studies.

Euro-Australian and Aboriginal academics and professionals etc. willing to make their services available on terms to be negotiated in individual cases - from free, expenses only to full commercial terms according to circumstances.

Aboriginal with some organisational experience and knowledge of academic disciplines. [468]

842. An Aboriginal Organisation.
For a number of years the Aboriginal legal services throughout Australia [469] have sought the establishment of a small secretariat, preferably based in Canberra, as a general support facility. If such an agency did come into existence one of its responsibilities could be to assist communities to formulate proposals for new justice mechanisms within Aboriginal communities. Such an agency would have distinct advantages. It would be run and supported by Aboriginal people, and it would rely on the experience and expertise of Aboriginal legal services which have dealt exclusively with legal problems facing Aboriginal people, and which are situated in city, country and remote parts of Australia. They are thus in a unique position, with the capacity to take fully into account Aboriginal views about their problems and difficulties. In particular such a body could have as one of its responsibilities the monitoring of Aboriginal communities needs with respect to local justice issues. Mr JP Harkins in his Inquiry into Aboriginal Legal Aid made the following observation about a national secretariat for Aboriginal legal services'

There are a number of respects in which ALSs could benefit from communication and coordinated action. The establishment of a national legal services organisation... is one of several ways in which this might be achieved. A national conference, suggested elsewhere in this report, and bilateral arrangements on specific issues as they arise, are other means. [470]

He concluded that improving the delivery of legal services to Aborigines in the States and Territories should be given higher priority than a national secretariat, [471] and he did not consider whether the role outlined here would be a suitable one for such an agency. In the Commission's view, if an agency is needed to assist Aboriginal communities to assess appropriate community justice mechanisms, it should be an Aboriginal agency. Given that a National Aboriginal and Islanders Legal Services Secretariat (NAILSS) is already in existence, even if in fledging form, it seems sensible that it be utilised rather than creating any new structures or organisations.

843. Related Issues.
To a considerable degree the choice between differing methods of implementation depends on the wider issues of self-government and local autonomy outlined earlier in this Chapter. [472] These questions, and related issues of implementation, will be discussed in Part VIII of this Report. It should also be noted that some of the purposes sought to be achieved by local justice mechanisms may be achieved in other, perhaps indirect, ways. A number of these are dealt with elsewhere in this Report, including the following:

844. The Range of Issues.
The previous Chapter outlined a range of options for local justice mechanisms for Aboriginal communities. One of these options was to make the general legal system more aware of the needs of Aboriginal people, and to take account of Aboriginal customary laws by administrative means. A key issue in seeking to achieve this is the role of the police. Any detailed discussion of Aborigines and the police must involve a whole range of matters, many of them beyond the scope of this Report. In this Chapter the discussion covers the following matters:

845. Role of the Police.
A permanent, professional police force is an integral feature of each of the criminal justice systems operating in Australia. Given the over-representation of Aborigines within these systems the role of the police and the way in which they do their work are of critical importance. Aborigines are 'disproportionately ... involved in contact with police and therefore the potential of conflict is disproportionately higher'. [474] The police are usually the most obvious participants in the criminal process, and may be viewed with resentment by the families and friends of Aborigines arrested and charged. Special problems arise for police when dealing with Aboriginal offenders, whether in small, remote communities or in the inner suburbs of capital cities. These problems are exacerbated by the range of public order offences which police enforce, [475] and by the fact that much Aboriginal involvement with the criminal justice system is alcohol related. [476] The frequent conflicts between Aborigines and the police are not conducive to good relations. [477] Other factors responsible for the variable state of relations between Aborigines and the police include the socio-economic conditions in which many Aborigines live, [478] the lack of specialized training and the (usually) short-term placement of police officers in Aboriginal communities, the multiplicity of functions which many police officers are required to perform, [479] and unsympathetic attitudes towards police in some cases. For the most part, the police reflect the attitudes of the general public but because of their position in the community the police must be leaders in improving attitudes.

846. Different Policing Methods.
The requirements for policing Aboriginal communities throughout Australia vary greatly between urban areas, country towns and remoter areas, and different approaches are adopted in each State and Territory. For example officers of the Queensland Police are now stationed or regularly visit all Aboriginal trust areas (formerly reserves), but there is also a separate Aboriginal police force, chosen from local residents and employed by the Department of Community Services, which performs certain policing functions. [480] In Western Australia and the Northern Territory Aboriginal police aides with limited powers are employed by the Police Force in areas of high Aboriginal population. The South Australian Police have announced they will also establish a police aide scheme. [481] In the north-west area of South Australia (Pitjantjatjara land) no police are based in any of the Aboriginal communities, but regular mobile patrols are carried out by the South Australian Police. In emergencies the police fly in. This may be contrasted with the Northern Territory where many Aboriginal communities have permanent police stations. Other communities largely police themselves, or are not of sufficient size to justify a police station; in those cases the State or Territory Police are only called in to deal with more serious matters or matters which cannot be dealt with locally. The range of approaches presently adopted must be kept in mind when considering the policing needs of Aborigines, and the many requests that have been made by Aboriginal communities for change.

847. Aboriginal Views.
The Commission has not received any requests from Aboriginal communities for the removal of police stationed in their communities, nor has there been any denial of the need for police. On the contrary some communities in the Northern Territory which have no permanent police station have sought one, and many Aborigines would strongly resist any attempts to restrict their access to the police. [482] What many Aborigines seek, especially those living in separate communities, whether in remote areas or on the fringes of country towns, is a greater degree of control over what takes place within the community. A central aspect of this is policing. Community leaders wish to be informed of police patrols entering the community, of police being called to disturbances and of persons being arrested. [483] Some have requested that the police only enter after receiving local permission. The Report of the Groote Eylandt Aboriginal Task Force recommended that:

Prior to entering by the Police to an Aboriginal Community, the Community Council or one of its members, must be informed of the timing and purpose of the visit. [484]

Such requirements must be balanced against the requirement that the police be able to carry out their work efficiently and impartially. Yet there does appear scope for better communication between police and local communities. Improved consultation with community leaders may have positive results. Small, especially remote, Aboriginal communities are not structured or run in the same way as a typical suburb of a city or country town.

A number of different approaches could be taken to resolve this problem. One was suggested by Professor Kevin Ryan:

The ordinary police must not be restrained from responding to calls when breaches of the law are alleged, though it would be appropriate for them to refuse to intervene except when they are asked to do so by the Aboriginal Council or when the matter is so serious that it should not be left to the Council to handle. [485]

It may be helpful for guidelines to be drafted, in consultation with the communities involved, instructing police of procedures to be adopted in such situations.

848. Need for Regular Communication.
A crucial factor is regular communications between members of Aboriginal communities, and especially their leaders, and the police. This should occur whether police are locally based or not. Such communication may improve relations and assist both police and Aborigines to be kept informed on a continuing basis. In Canada, where many similar problems arise in policing Indian reserves, some police districts supply monthly and annual reports to local Indian Band Councils. [486] This is one form of acknowledgment of the authority of Band Councils, and it may help to develop a better relationship of respect between the police and the Council. Another option that has been suggested is to adjust the emphasis of policing within communities to one of prevention, rather than enforcement and detection (though this is easier said than done). Changes in attitudes of police to Aboriginal policing are also needed: this may require new curricula, especially at later stages of police training. [487]

849. 'Them' and 'Us'.
One way that is often suggested to improve the policing of Aboriginal communities - and to improve the overall state of Aboriginal/police relations - is to increase the number of Aborigines in State and Territory police forces. One among a number of obstacles is the attitude that has developed of 'them' and 'us'. The involvement of Aborigines may, perhaps, change the view held by many Aborigines that the police discriminate against them. The rationale behind encouraging members of minority groups to join police forces has been expressed in the following terms with reference to United States Indians:

First, it increases the likelihood that Indians will have a sense of linkage with the police department; they will feel that their views are represented. 'We just like to know that Indians are there - I've got a cousin there - that helps', is the way that one Indian person expressed it. Second, it is believed that an Indian policeman will have better understanding of other Indians because of their common background, and that, in turn, he or she will gain more respect and cooperation. Third, Indian officers can educate White officers so that they will become more adept in their dealings with Indians. [488]

On the other hand it has been argued that this has little substance, and that once a person from a minority group in a heterogeneous setting becomes a policeman he or she is seen essentially as an agent of the majority group. [489] An Aborigine deciding to join the police force runs the risk of being labelled an 'Uncle Tom'. Moreover the appointment whether through special recruitment procedures or otherwise - of a few minority group members at junior levels may have little or no impact on attitudes within the force or on policy. It may be, and be seen as, a form of tokenism. [490]

850. Recruitment of Aborigines.
At present the number of Aborigines in State and Territory Police Forces is very low. [491] Until very recently no State Police Force nor the Australian Federal Police had adopted special procedures to recruit Aborigines. The South Australian Police Force has stated that it encourages Aborigines and persons of other ethnic backgrounds to join the Police Force, but has no special provision for entry. [492] The cadet scheme in the Northern Territory does however make particular attempts to recruit Aborigines. The aim of this scheme is to .provide sufficient training for Aborigines to enable them to graduate on equal terms with other recruits. When the scheme commenced in 1980 only four suitably qualified Aborigines applied, only two remained after six months (one left because he would not live away from his country) [493] and none proceeded to graduation. Despite the special scheme, the Northern Territory Police find that it cannot compete for educated Aborigines against other prospective employers. A factor in this is the reluctance to join because of the fear of losing friends. The New South Wales Police has an Equal Employment Management Plan which provides for a target of 8 Aborigines, including two females, in a 12 month period. There are no special standards of entry. In the latter half of 1985, four Aborigines were recruited into the force. [494]

851. Recruitment Policy.
While the attitude of Police Forces to the maintenance of entry standards is understandable, unless some greater flexibility is introduced no changes are likely to occur in the numbers of Aboriginal recruits. This is the United States experience:

Recruitment of minorities into police forces in the United States has indicated that the process requires innovations in selection and training procedures. The American experience suggests that a recruitment campaign to increase the proportion of Aborigines on police forces should utilize redefined or modified selection criteria. [495]

One suggestion is that while filling regular officer positions should be the principal objective, an intermediate step might be the recruitment of community officers who could proceed via training to become regular police officers. [496]

852. Aboriginal Police Aides.
As a step towards greater Aboriginal participation within the police forces some States have introduced a system of Aboriginal police aides. These operate in varying forms in Western Australia, and the Northern Territory and are shortly to be introduced in South Australia. Queensland has its own system of Aboriginal Police which are not part of the Queensland Police Force. [497] Other State Police Forces are not in favour of establishing police aides.

853. Arguments for Aboriginal Police Aides.
It has been suggested that an Aboriginal police aide system may be a means of improving Aboriginal-police relations, as well as a means of improving police methods as they affect Aborigines. An Aborigine carrying out policing responsibilities within the Aboriginal community in which he lives is - it is argued - more likely to understand the pressures, problems and underlying tensions. He is on the spot if trouble occurs, knows the histories of the people involved and hence is better able to determine an appropriate action. A police officer without that knowledge could unwittingly create further problems. A further argument is that an arrest of one Aborigine by another Aborigine may cause less resentment, and perhaps less loss of dignity, than if a white police officer was involved. The Commission received a number of submissions supporting the concept of Aboriginal police or police aides. [504] The Mossman Gorge Aboriginal community in North Queensland submitted that they needed Aboriginal police or police aides to help the police protect law abiding families from lawless and drunken members of the community. It was thought that the appointment of police aides could help to calm fears about unfair treatment by the police, and help the police to gain more insight and understanding of problems at Mossman Gorge. At the Commission's Public Hearings held during March-May 1981, there was strong support in many communities for Aboriginal police. Views to this effect were expressed at Davenport reserve (Port Augusta, SA), Yandearra (WA), La Grange (WA), Derby (WA), One Arm Point (WA), Junjawa (Fitzroy Crossing, WA), Numbulwar (NT), Amata (SA) and Moree (NSW). In Queensland, communities visited which had Aboriginal police generally favoured their retention, although shortcomings with the Queensland system were mentioned, especially relating to the limited status and powers of the aides. Almost without exception communities which supported a system of Aboriginal police considered that an Aboriginal policeman should have the same status as a white policeman (including uniforms, badges and arrest powers), and should be able to work side by side with him rather than as a subordinate. An organised training program for Aboriginal police was considered essential. [505] A submission from the Queensland Law Society [506] asserted that proper training and remuneration for Aboriginal police officers could improve the high turnover rate on Queensland reserves, which, it was said, had led to abuses of power. The recent Groote Eylandt Aboriginal Task Force Report commented'

The Task Force is firmly of the view that the introduction of a community located Aboriginal Police Aide system is a positive way to improve Aboriginal-Police relations as well as improving Police activities as they affect Aboriginals. The Task Force believes that Aboriginal Police Aides performing Police duties within an Aboriginal Community are more likely to understand the pressures, problems and underlying tensions of that community. [507]

The Task Force went on to recommend two police aides be appointed to Umbakumba and four to Angurugu, the two Aboriginal communities on Groote Eylandt. But police aide schemes, especially where there is no avenue for promotion to the regular forces, tend to produce a group of 'second class police officers', with limited responsibility for local policing but with no opportunity to influence the policing of Aboriginal communities in any more fundamental way. [508]

854. Promotion for Aboriginal Police Aides.
A major shortcoming with existing police aide schemes is that there is no facility for progression to police constable. Experience and on-the-job training cannot overcome the educational bar which prevents most Aborigines from being eligible to join police forces. [509] One option would be to consider expanding the entry requirements for the police forces so that, for example, working as a police aide for a period of time could provide an alternative method of entry. But sufficient standards of education and literacy are essential for police work, so that remedial education programs are likely to be necessary to assist police aides in meeting the standards required. [510]

855. Aboriginal Police and Kinship.
A particular problem which arises for Aboriginal police and police aides, especially those working among more traditional Aborigines, relates to the kinship system and the avoidance relationships which form part of it. An Aboriginal policeman expected to arrest a relative can become caught between two worlds, making it difficult or impossible to fulfil both his tribal obligation and his role as a police officer. [511] Resistance to local pressures could lower his status as member of the group and make him a target of hostility or resentment because of his powers as a police aide. The creation of Aboriginal police aides may conversely introduce a new authority within a community and unwittingly have the effect of eroding Aboriginal traditions and law. [512] In some communities inter-clan hostilities can arise when an Aboriginal policeman from one clan has to arrest a member of another clan. [513] On some Aboriginal reserves in Queensland this problem has been overcome to some extent by appointing an Aboriginal policeman from each of the clans or tribal groupings. [514] During the Commission's Public Hearings problems for Aboriginal policemen resulting from kinship obligations were mentioned in several communities including Bardi (One Arm Point, WA), Bayulu (Fitzroy Crossing, WA), Yuendumu (NT), Doomadgee (Qld), Aurukun (Qld) and Palm Island (Qld). In some places it was regarded as a bar to the successful operation of an Aboriginal police force. One possibility is for Aboriginal policemen to be posted to areas other than their tribal area [515] in order to avoid kinship obligations. But affinity to one's own home land is a major obstacle with such proposals. Lacking knowledge of the local language and in danger of being ostracised, the task of an Aboriginal police aide in such cases may be difficult or impossible.

It would also run counter to an often expressed rationale for police aide schemes, that they provide local knowledge and understanding of underlying tensions within communities, and allow for policing to be carried on with a greater level of local acceptance.

856. Aboriginal Police Exercising Arrest Powers.
Related to the difficulties for Aboriginal police or police aides with kinship is that of arresting a person where some form of physical contact is required. This problem was specifically noted in. a recent report of the South Australian Aboriginal Customary Law Committee:

there is locked deep in the Pitjantjatjara system of values an unthinkableness about aggressively seizing another person. Each individual is autonomous, aristocractic and inviolate. For one adult to denigrate, publicly challenge, or to lay hold of another either directly or through kinsman, therefore constitutes an offence. Serious consequences will almost inevitably follow; and if people are drunk, these can be widespread and catastrophic. [516]

Clearly this makes it very difficult for some Aborigines to carry out an autonomous policing function.

857. The Need for Local Support.
Some of the problems confronting Aboriginal police may be overcome if they receive the support of the local elders or community council. If the local authority structure is ignored and the Aboriginal policeman is solely responsible to the Police Commissioner (or, as in Queensland, a Government Department) the Aboriginal aide may be regarded merely as an addition - often, a 'second class' addition - to the ordinary police system. Community support is thus essential. [517] Without clear and reliable local support, and without a clear perception, on the part both of the local Aboriginal community and of the police, of the role police aides should play, no system of Aboriginal police or police aides should be introduced. Another problem is that they may well cut across existing policing methods developed to suit particular needs. These include 'community wardens' and other forms of self-policing.

858. South Australian Wardens.
Several Aboriginal communities in the north-west of South Australia (including Amata, Ernabella, Fregon, Indulkana and Mimili) and Yalata in the west of the State have for some time used a system of Aboriginal wardens. [518] Initially 20 persons were appointed and trained by the Police and the Department of Technical and Further Education for the Pitjantjatjara area and 10 for the Yalata community. [519] A further 30 warders were appointed and trained in June 1985. [520] The system is not established nor regulated by legislation. Wardens are employed and controlled by the Community Councils and carry out an internal security role. Other functions include liaison between the community and visiting police. (Emergencies apart, South Australian Police are able to visit communities only weekly.) The wardens have no official uniform but in some cases wear khaki trousers and shirt (similar to uniforms worn by South Australian police in the outback) and have made their own badges. Some communities have requested an improved status for their wardens, which they consider would come from giving them proper training, uniforms, badges and greater powers (of arrest etc.). [521] It has been suggested that, at least if established by local initiative, such a status might free the warden from the kin relationships which, as discussed already, create real problems in many communities. Thus a warden in uniform and on duty might come to be regarded as exempt from kin obligations. [522] The warden system, which was an Aboriginal initiative, has been operating with some success for several years. However the South Australian Police Force has decided to introduce a system of police aides to replace it. [523] It has been proposed that the Aide Scheme operate for a trial period of three years in Port Augusta, Amata, Indulkana, Fregon and Ernabella. The aim of the scheme is to enable specially trained Aborigines, working within their own communities, to assist the police to provide a police service which is suitable to the community. [524] The South Australian Customary Law Committee opposed this change, principally because of the practical' difficulties in making such a system work, difficulties referred to in paras 855 and 856. The Committee preferred improvements to the existing warden system and mobile policing by the South Australian Police. In its view:

the South Australian approach, of mobile policing, does not raise the problems of an accommodation of a police culture to Aboriginal culture as might be posed by the establishment of residential arrangements. [525]

859. Council-employed Peace Officers.
Other Aboriginal communities have sought to employ a local peace officer, similar to the wardens in South Australia. The Gurindji Community Council (NT) has advocated the appointment of a member of their community, chosen and dismissable by the Council, as a local policeman. He should be a member of the Council, be given proper training and a uniform, and would have the power to arrest, and if necessary lock-up overnight, local residents who commit offences on Gurindji land. The value of training and in particular a uniform was mentioned as creating an environment whereby the nominated person would be considered exempt from kin obligations. Gurindji women considered there would be benefits in having an Aboriginal policewoman as well as a policeman. [526] At Roper River (NT) the Council at various times has employed what are called security men to help police the community. These men, who have a uniform, are representative of the four different skin groups. There are also white police stationed at Roper River. The Lajamanu Council (Hooker Creek, NT) has also at times employed four 'nightwatchmen' as a supplement to the police. They are mainly older men who patrol the community each night. If offenders are found they are often dealt with summarily. The council and elders later decide if the police should be notified so that they may also pursue the matter. The development of the night patrol was a community initiative to reduce the very high level of disturbances and offending. It is apparently accepted by the members of the community. [527] There is still support in some Aboriginal communities for night watchmen, especially among Aboriginal women. [528]

860. Policing by Council Members.
At Beswick Station (NT) the elected council performs a policing role. The Council relies on family leaders to help it. If trouble erupts a council member will request a member of the trouble-maker's family to assist. Specific incidents or matters of continuing concern are raised at Council meetings and families requested to keep their members in order. [529] The council is happy with the way this system operates and does not see any need for police aides. Other views expressed at the Commission's Public Hearings supported this method of policing because it prevented people becoming resentful at a single person being given what were seen as arbitrary police powers. [530]

861. The 'Ten-Man Committee’.
The involvement of the 'Ten-Man Committee' at the Strelley Community (WA) has already been described. [531] Its role can extend to picking up offenders in Port Hedland and throughout the Pilbara, with the knowledge and support of the local police: those returned to Strelley by the committee are dealt with by the community at a public meeting. According to the local police the system works successfully^. [532] Apparently a similar committee operates at Noonkanbah (in the Kimberley area of Western Australia).

862. Self-Policing in Urban Areas.
A system of self-policing first began operating unofficially among Aboriginal residents of Redfern in Sydney in April 1980. Two Aboriginal men were appointed as community liaison officers by the Aboriginal Housing Company to patrol the area and assist in local law and order. As a result of lack of funds the system lapsed after six months. It was reactivated in April 1983 as an 'official' system with funding provided. Initially two community liaison officers were appointed but this was later increased to four. Their principal function was to control behaviour involving vandalism and disruptive behaviour on Housing Company property. To this end they liaised regularly with the local police and with the Police Aborigine Liaison Unit, a special unit in the New South Wales Police Force. The four liaison officers were identifiable clothing and carried ID cards. They generally worked shifts between 7 am and 2 am. From time to time the Housing Company notified its tenants in the area of particular matters which the community liaison officers would be giving special attention: for example drinking in the streets, loud music, smashing bottles, dumping rubbish and card schools. [533] Apparently the system worked well and there was a marked improvement in local law and order. [534] The Housing Company has temporarily discontinued the scheme although efforts are being made to resurrect it.

863. Advantages and Disadvantages of Self-Policing.
Self-policing has advantages both for communities and the State and Territory police forces. Communities are able to deal with trouble-makers in a more flexible manner which may be more appropriate to the circumstances, as well as more in accord with local customary laws. There may be as a result a de facto discretion to determine whether an apparent infringement of the criminal law should result in the police being called in and the matter pursued through the courts, or whether the matter can be dealt with locally. From the police viewpoint, self-policing can reduce the demands made upon them to service remote communities either with a permanent police presence or by regular visits. Police officers are understandably reluctant to live, with or without families, in remote localities. There may be no sufficient need for police in many smaller communities. Self-policing may reduce the overall demand on limited police resources, enabling a more efficient network of police services to be established. It may also, as the Redfern scheme demonstrated, be of value in urban areas. But of course it has its disadvantages, including the risk of unreliable provision of services, and the danger of partiality. Self-policing can also present real dilemmas, as the New South Wales Police pointed out. [535] Some Aboriginal communities prefer to settle their own disputes and if police are called, their presence is resented. But, if the police are called and do not attend, there are likely to be complaints that the police are not doing their job or are discriminating against Aborigines.

864. A New South Wales Pilot Scheme.
The New South Wales Police are presently attempting to create, as a pilot scheme, the position of Aboriginal Assistant to the Police. The aim of the scheme is to create better communications between the Aboriginal community and the Police. The person appointed as Aboriginal Assistant would not be carrying out a policing function, such as police aides do, and would not wear a uniform. Persons chosen would have to be acceptable to both the Aboriginal community and the Police. [536]

865. Aboriginal Police.
Increasing the number of Aborigines in the police forces of the States and Territories, and extending the systems of Aboriginal police aides, may help solve some of these problems. But it 'will not constitute a general solution and may in some cases be wholly inappropriate. There must be careful consideration and consultation on the question of appointing Aborigines to perform a policing role within Aboriginal communities, especially traditionally oriented ones. A formal system of police aides is not necessarily the solution, and in any event the major criticisms of police aide schemes, referred to already, need to be addressed. [537] Where aide schemes are introduced they should be subject to periodic review, and should not be continued after the point where existing aides and new potential recruits can be incorporated in the regular force.

866. Self-Policing.
Some degree of self-policing of Aboriginal communities as an alternative to a permanent police presence may often be feasible, and may be the only solution in some cases. It can result in a more efficient allocation of police resources while allowing communities to manage their own affairs to a greater extent. It appears to have worked with some success in the north-west of South Australia [538] and in various places in Western Australia and the Northern Territory. This does not mean that such a system can only operate in the absence of police. It could be a useful adjunct to the existing police network and result in improved policing and better Aboriginal/police relations, including in urban areas. The methods of self-policing available will vary depending on community needs and aspirations. Consultation is essential to ensure that the appropriate balance is reached. There is no single solution to the policing of Aboriginal communities. Police forces throughout Australia need to examine carefully the policing needs of Aborigines, to discuss these with Aboriginal communities and to be flexible and innovative in seeking solutions.

867. Alternative Policing Strategies.
To this end, improvements may be possible through the adoption of alternative policing strategies. Some of these strategies have been tried in other countries, and they may well be worth adapting to Australian conditions:

868. Aboriginal/Police Relations.
The Commission has received a number of submissions giving examples of poor relations with the police. These range from misunderstandings due to the lack of police understanding of Aboriginal society through to the abuse of police power and authority. They come from both city and country areas. The House of Representatives Committee Report into Aboriginal Legal Aid found:

There is evidence, however, that harassment, discrimination, maltreatment and abuse of legal rights by police are still widespread and that in many areas Aboriginal/police relations are characterised by distrust and tension, if not open conflict and hostility. [543]

While there are recurring conflicts between Aborigines and police, attempts at improving Aboriginal/police relations are being made in some States.

869. Regular Meetings between Aborigines and Police.
In at least four States regular liaison schemes of some kind exist:

870. Effectiveness of Existing Liaison Schemes.
The success of current liaison systems is difficult to evaluate. Much may often be achieved merely by airing grievances or making both parties aware of particular problems. The South Australian Aboriginal/Police Liaison Committee can point to achievements such as the formulation of Police Circular No 354 [552] which sets out instructions for police when interrogating Aborigines, including a requirement to notify on request the Aboriginal Legal Rights Movement. Field Officers employed by the Service have been given special status by the police department. They are issued with identification cards which the police recognise and they are accorded the same facilities made available to solicitors and prisoner's relatives. Sergeant Frank Warner, a former field officer for Aboriginal/Police Liaison in the South Australian Police Force, considered the Committee to be a success:

Its effectiveness ... ebbs and flows like all these things, perhaps depending at times on continuity of members... It is however, we feel an important thing to retain; it does give Aboriginal people from any organisation an avenue to police administration. [553]

On the other hand Mr Garry Hiskey, formerly Senior Solicitor with the Aboriginal Legal Rights Movement, stated that police representatives did not regard the Committee as an appropriate forum for the airing or solution of complaints, whereas Aboriginal people regarded this as its primary function. He pleaded for the police to become more flexible and less technical regarding the matters raised at the Committee Meetings. [554]

871. Views Expressed at Public Hearings.
Strong support for Aboriginal/Police Liaison Committees as a way of improving relations was expressed at the Public Hearings. [555] There was much interest in the South Australian model. At a hearing in the Kimberley region of Western Australia the view was expressed that committees would need to be established on a regional basis. Aboriginal people living in the area saw no relevance for themselves of a committee established in Perth. [556] This proposal has since been implemented and as mentioned in paragraph 869 a regional committee has been established at Kalgoorlie. In Cairns the view was expressed that a liaison committee was worth trying provided the police representative was someone in a position of power, such as a Superintendent or the Inspector for the region. [557] Mr Paul Coe, President of the Redfern Legal Service was in favour of establishing a liaison committee in New South Wales as a means of resolving tensions between Aborigines and the police provided the Aboriginal representatives on the Committee were able to meet with the police as equals. [558]

872. Conclusions on Liaison Committees.
Regular contact between Aboriginal organisations and State and Territory police forces to enable discussion on matters of mutual concern is a simple and straight-forward way to attempt to resolve conflicts and tensions as they arise. It will not solve all problems, but the widespread support for the idea expressed to the Commission indicates its potential value. Different mechanisms may be appropriate in different areas. A more formal system may be required in the capital cities than in country towns and in remoter areas, but the important thing is communication and the potential for achieving real change. Meetings between Aboriginal groups and the police must be more than merely an opportunity to publicly state concerns already well known to both sides. Detailed, particular discussions must be possible:

The danger of merely 'opening the lines of communication' is that it may present a facade of improvement while bona fide changes fail to occur. Thus, the communication must have a purpose; the forums should have real power to institute desired changes. [559]

873. Lack of Understanding.
It is often suggested that one way of improving relations between Aborigines and the police is by improving the understanding by each group of the other. On the Aboriginal side there is often little comprehension of the role, function and methods of the police. Most Police, on the other hand, have little or no understanding of the culture, language, and world-view of Aborigines. During the Commission's Public Hearings many witnesses both in urban and remote areas mentioned problems that resulted from this lack of understanding and argued that better training and education for police officers could improve the situation. [560]

The extent of instruction in Aboriginal culture during police training varies greatly in the State and Territory police forces. In the Northern Territory, specific instruction to enable a police officer to work among Aborigines is the largest single component of the 20 week induction course. [561] In addition, a police officer appointed to an Aboriginal town or settlement is counselled by Divisional Officers before taking up duties and, if necessary, arrangements are made for the Department of Aboriginal Affairs field officer for the area to discuss matters with him. In South Australia cadet training has recently been revised. Cadets now attend a one day workshop at the Aboriginal Studies and Teacher Education Centre at the South Australian College of Advanced Education which is aimed at

The South Australian Police Force has also encouraged officers to undertake additional studies. Officers have attended courses in Ethno-Science at the Torrens College of Advanced Education and a number have done short courses in Pitjantjatjara language studies. [563] A suggestion for improving police training was made by Superintendent Owen Bevan, Officer in Charge of the Community Affairs and Information Service Section of the South Australian Police Force. He advocated the training of police specialists who would play a specific role in Aboriginal policing:

In States where there are significant populations of Aborigines living in tribal or semi-tribal circumstances such police specialists could perhaps be given the opportunity to actually live among these people for a time ... Specialist officers might live and work for a nominated period in [the Pitjantjatjara] lands in an 'attachment' type role with a set of broad objectives... [564]

These objectives might include an understanding of Aboriginal culture and ways of life, assisting police to gain the confidence of Aborigines and to develop possible solutions to policing problems. In Queensland there is a one day seminar during initial training in which each new group of trainees is required to participate. The seminars involve the short, formal presentation of material followed by general discussion between the police and other participants. The seminars are open to any Aboriginal person who wishes to participate. The Aboriginal community provides the speakers and it is left up to individual speakers as to what they say. The view of the Queensland police is that the seminars have proved far more successful than other means that have been tried (e.g. formal lectures on Aboriginal cultures). [565] It was said that it had also opened up communication between police and the Aboriginal community. The Queensland police training also includes a course in human relations and there is additional input on Aboriginal issues during in-service training. In New South Wales, there is a special consultant (Community Liaison Officer) in the Department of Aboriginal Affairs (Cth) who visits all levels of Poo lice In-Service training to lecture on Aboriginal cultural issues. Officers in the Aboriginal Liaison Unit and other Aboriginal guest lecturers also attend to give lectures. [566] In Victoria and Tasmania there is little direct instruction on Aboriginal culture and ways of life during police training. In Victoria in 1980, four lectures were devoted to ethnic groups during the 20 weeks of basic training. [567]

875. Previous Recommendations for Improving Police Training.
The lack of police training in Aboriginal affairs was the subject of specific comment in the Report of the Laverton Royal Commission which investigated a number of incidents between Aborigines and the police in Western Australia in 1974 and 1975. It recommended:

A small specialist Aboriginal Liaison Unit headed by a Chief Inspector was set up as a result of these recommendations. Officers in the Unit provide instruction at the Police Academy on Aboriginal culture and some of the social problems that Aborigines experience. Lectures by Aboriginal people are given to both recruit and in-service courses. [569] In 1977 a Committee of Inquiry into the Enforcement of the Criminal Law in Queensland (the Lucas Report) recommended:

A special course of instruction should be given to police to educate them concerning the problems of persons under disability [this includes Aborigines and Torres Strait Islanders]. [570]

This Commission has previously recommended improvements in the training of police
officers who have dealings with Aborigines.

The training of police officers in the Northern Territory should include some attention to culture, language and habits of thought of Aboriginals. [571]

876. Police Selection.
As well as attention being given to police training it has also been suggested that there is a need for greater scrutiny in police selection procedures. [572] One proposal has been that the occupational status of members of the police force should be raised by offering more attractive salaries, which compare favourably with public servants or other skilled tradesmen, and introducing promotional criteria which included educational standards, initiative and efficiency, rather than seniority. [573] There should also be higher educational qualifications for entry, personality as well as intelligence tests included in selection procedures and compulsory courses in human relations for all police trainees. In the last decade there have been improvements of this kind, especially in educational requirements for police entry. But, in addition to greater attention being given to selection, it has been suggested that officers chosen to work in areas with a large Aboriginal population should demonstrate some knowledge and understanding of Aborigines. The Groote Eylandt Aboriginal Task Force recommended:

All Police Officers who are to be appointed to Groote Eylandt must have at least two years in the field experience with the Northern Territory Police Force and have a demonstrated ability to communicate effectively with Aboriginals and possess a knowledge and understanding of Aboriginal culture. [574]

877. Conclusions: Training and Selection.
Improved selection procedures and a raising of the status of police officers may indeed help Aboriginal/police relations, and police/community relations generally. But in the shorter term benefits will flow from careful selection of officers who are to be posted to areas with a large Aboriginal population, particularly in remoter areas. There should also be efforts to increase the number of women police officers serving in those areas. Police training in all State and Territory police forces should be widened. There should be included specific instruction on Aboriginal laws, culture, institutions and ways of life, to better equip police officers to understand Aboriginal viewpoints thus improving law enforcement. This does not mean giving a small number of formal lectures as part of an induction course to recruits with no actual experience of living or working in Aboriginal areas. Brief courses in 'Aboriginal culture' as part of initial training, and before recruits have gained any experience of policing in Aboriginal areas, are of little value. [575] In-service courses and seminars are a better method, and should be a compulsory part of continuing education for police officers who work in areas with significant Aboriginal populations.

878. A Role for Aboriginal Legal Services.
While improvements to training may make police more aware of ways in which they should interact and communicate with Aborigines and thus improve Aboriginal/police relations, the onus can not be completely upon the police. Aborigines themselves need to be more aware of the role and functions of the police and the way in which the criminal justice system works. There may be a role to play here for Aboriginal Legal Services, which with increased resources, may be able to become involved in basic forms of community legal education. [576] Material could be prepared setting out in plain terms the various aspects of the legal system, especially the criminal justice system and the court process. Such material could be put on cassette tapes and video recordings made to allow easier dissemination of the information. Where necessary this material could be prepared in appropriate Aboriginal languages. It is preferable that persons with special skills or training be appointed to carry out the particular function of community legal education. Solicitors and field officers employed by Aboriginal Legal Services currently perform this function to some extent, but they are largely taken up with court-related work under intense pressure of time. Appointment of a person to carry out community legal education may in the long run lead to a reduction in the amount of this court work. [577] JP Harkins in his Inquiry into Aboriginal Legal Aid has recommended against setting up separate community legal education units within Aboriginal legal services. In his view 'community legal education programs would be best achieved by the solicitors and field officers already in the field serving communities'. [578]

879. The Role of the Police.
The task of the police in carrying out their wide ranging responsibilities is clearly not easy, and is becoming more complex. Cross-cultural policing raises special difficulties which require perhaps unique solutions. The police must accept some of the responsibility for seeking such solutions. Superintendent Gillard of the Royal Canadian Mounted Police expressed this challenge in the Canadian context:

with the emergence of well-organized Native associations and the acceptance in many circles of the non-Native society of the Native land claims and aboriginal rights, a new era of Police/Native relations is emerging. Not only must the Force accept those realities, but also must assist in the justice system in order to reduce the high percentage of Natives in conflict with the law. Respect and appropriate recognition should be shown by members to Native ideals, customs, art and significant ceremonial functions in order to instill pride in their past as a means of effectively dealing with present and future problems. [579]

He concluded that:

the RCMP ... must enter into a new era of Native/Police relations, otherwise, we will be an additional part of the problem instead of a significant part of the solution of Native Indians in conflict with the law and the current and future development of Native people. [580]

Australian police forces must be prepared to take up a similar challenge with respect to the Aborigines.

880. Summary of Conclusions and Recommendations in this Part.
The conclusions and recommendations contained in this Part are, for the reasons given less precise and definite than the conclusions and recommendations in other parts of this Report. Those conclusions and recommendations can be summarised as follows:

∗ The local Aboriginal group should have power to draw up local by-laws, including by-laws incorporating or taking into account Aboriginal customs, rules and traditions.

∗ Appropriate safeguards need to be established to ensure that individual rights are protected, e.g. by way of appeal.

∗ The by-laws should, in general, apply to all persons within the boundaries of the community.

∗ If the court is to be run by local people, they should have power within broad limits to determine their own procedure, in accordance with what is 'seen to be procedurally fair by the community at large'.

∗ The community should have some voice in selecting the persons who will constitute the court, and appropriate training should be available to those selected. In minor matters there need be no automatic right to legal counsel, though the defendant in such cases should have the right to have someone (e.g. a friend) speak on his behalf.

∗ The court's powers should include powers of mediation and conciliation. A court which is receptive to the traditions, needs and views of the local people may be able to resolve some disputes before they escalate, perhaps avoiding more serious criminal charges. The power to order compensation of some kind in such situations is one way of achieving this.

∗ There should be regular reviews of the operation of any such court, undertaken in conjunction with the local community.

∗ the Community Services (Aborigines) Act 1984 (Qld) should be amended to clarify the arrangements for community self-government and to avoid overlap with ordinary local government arrangements (para 743, 746).

∗ encouragement should be given to local Aboriginal councils to draft appropriate by-laws (rather than simply adopting a central model) (para 746).

∗ There needs to be better communication between police and local Aboriginal communities about policing arrangements for those communities (para 805, 807). Police liaison committees can assist, but they should have broad terms of reference and access to senior police on issues of policy (para 872).

∗ There should be greater encouragement for some forms of self-policing, as an adjunct to regular police, including in urban areas (para 862-3, 866).

∗ Police training on Aboriginal issues should not be confined to initial or induction courses. The emphasis should be on post-induction and further education courses (especially after officers have had some experience of policing in Aboriginal areas) (para 876-7).

∗ some facility for promotion of aides (after any necessary training) into the regular force (para 851,854, 855).

PART VII - THE RECOGNITION OF TRADITIONAL HUNTING, FISHING AND GATHERING RIGHTS

33. Traditional Hunting, Fishing and Gathering Practices

Access to the country of one's forebears provided substance for the Dreamtime experience and an identity based on the continuity of life and values which were constantly reaffirmed in ritual and in use of the land. Economic exploitation of the land to support material needs, and its spiritual maintenance were not separate aspects of people's relations to country, but rather each validated and underwrote the other. The land was a living resource from which people drew sustenance - both physical and spiritual. The nexus between the two was shattered with the alienation of land by mining and pastoralists' interests. [581]

881. The Aim of this Part.
In this passage Dr Bell describes Aboriginal experiences in Central Australia. These experiences are shared by other hunter-gatherer societies that have had to make, or endure, the transition to farming, mining or other commercial land uses. The shift away from a hunter-gatherer economy, and the subsequent destruction of hunting and fishing grounds to make way for towns and industrial development, have been accompanied by legal restrictions on the right of people to hunt and forage for subsistence purposes. [582] Restrictions on foraging on land belonging to another are now usual. There has also been a realisation that steps must be taken to preserve endangered species. Rights to hunt and fish have been restricted further by governments in many countries in an attempt to regulate the commercial exploitation of the world's natural resources. In the past 200 years Aboriginal people have seen their economic interests similarly affected. In many cases their land was taken away, or its productivity drastically affected by pastoral and mining activities. [583] In more recent times Aboriginal hunting and fishing rights have been further whittled away by legislation. [584] A balance should be struck between acknowledging the rights and interests of Aboriginal people, and other interests, including conservation and the management of natural resources. To some extent this is happening already. On the one hand, the right to pursue a traditional lifestyle, a right recognised by the Commission's Terms of Reference, implies a right to use the land to forage and gather food for consumption. On the other hand, other factors, including the impact of new hunting techniques, and the need to regulate commercial exploitation of species, mean that no simple solution to the question of recognising traditional hunting and gathering rights is possible. It is important to determine whether a more equitable accommodation of interests than currently exists can be devised. Any such accommodation should take account of Aboriginal traditions and practices, the special relationship of Aboriginal people to the land, the fact that Aboriginal traditions may be changing, and the role of hunting and gathering in the economies of many Aboriginal communities. The role of governments vis-a-vis Aboriginal groups, who are seeking control over decisions that affect their lives, should also be reassessed. [585] This part of the Report describes briefly Aboriginal hunting and fishing practices in Australia (Chapter 33), and whether they have a degree of recognition at common law (Chapter 34). The extent to which federal and state legislation supports or detracts from these interests is examined in Chapter 35. Finally, Chapter 36 considers the principles which should guide reforms aimed at recognising Aboriginal hunting, fishing and gathering practices.

882. Traditional Hunting and the Law.
Traditional Aborigines have been regarded as the sole surviving representatives of hunters and gatherers in Oceania. [586] Bush food continues to form part of the diet of many Aboriginal people outside urban areas. But traditional hunting and fishing activities are not concerned only with subsistence. The close relationship between economic activities and the law has often been described. Sackett suggests that for Aboriginal people at Wiluna:

Hunting ties the past to the present, but is not simply a survival of some prior subsistence gambit... Most importantly it is an aspect of the law. As such it offers a venue through which certain men can and do display concern for the belief system ... Just like ritual, hunting affords men the opportunity of making claims regarding their position and right to authority in the group ... To hunt, then, is, as with ritual participation, to follow the Law, demonstrate its great potency, and guarantee its continuance. [587]

It was the law, in the full customary sense, that linked the use of land and sea with the spiritual maintenance of that land and sea through ritual. [588] Rituals to maintain the land and replenish the food supply were thus an important part of traditional life. [589] Altman says of the Gunwinggu:

Many of the rites performed at rituals, particularly at the currently prevalent Gunabibi ritual cult, involve the enactment of totemic dances that are explicitly linked to a concern with the reproduction of certain animal species... At ceremonies men share esoteric knowledge about animals' secret names, subsection terms and kinship categories. This male ritual concern has a secular corollary in the maintenance of the men's hunting economy: for it seems reasonable to argue that were links not conceptualised between the increase elements of ceremonies and the exploitation of game, then ceremonial focuses would have altered. When game is fat, healthy and abundant, men often state explicitly that this was proof of powerful bisnis (ceremony). [590]

883. Management of Natural Resources.
As an aspect of this care and responsibility for land Aborigines were careful to regulate the use of its natural resources. For example, according to TGH Strehlow the important ceremonial places of the Aranda had:

a sacred cave or tree storehouse for the local sacred objects and consequently its immediate

environs constituted a prohibited area, whose edge was generally about a mile (or even more) from the sacred cave. Within these sacred precincts all hunting and food gathering was forbidden. Even wounded animals could not be pursued into this forbidden zone which would be entered only for ceremonial purposes. [591]

As Maddock points out, these rules forbidding hunting near ceremonial sites in effect created game sanctuaries, and it was not only barren land and waters that were regulated in this manner:

The main waterhole of Japalpa remained a game reserve for fish, ducks, and all kinds of water birds, and so did the banks of the Finke along the first two miles of ponds at Irbmangkara. Again many of the finest waterholes in the Macdonnell Ranges provided inviolable sanctuaries for kangaroos, emus, and native animals of every kind. [592]

Anthropologists cite examples of traditional conservation practices, including trees germinated in coastal regions being transplanted close to inland camp sites, [593] of yams being replanted, [594] the rotation of fishing areas [595] and the controlled use of fire. [596] Evidence given during the Jawoyn Land Claim indicated that the return of Aboriginal people to their land had enabled conservation practices to be resumed. [597]

884. Customary Rules and Prescriptions.
Strict rules governed not only the taking of certain species but also the consumption and distribution of food. [598] A person's age, status and sex had a bearing on his right to take certain species. At Mornington Island, the Commission was told that the community wished to continue to punish people for breaches of the following laws relating to food taboos:

• pregnant women and young women must eat the right food as directed by the elders. [599]

Athol Chase provides the following example:

[I]n parts of Cape York dugongs could be approached, killed and eaten only by older initiated men. For women, youths and children even to be in contact with water which had dugong grease floating on it meant that they would become very ill. People. in these categories could not even touch equipment to be used in hunting dugongs for fear that illness and misfortune would result. [600]

Defined rules for the distribution of food were important for the building of reciprocal obligations. RM Berndt comments that:

The field of economics... is not concerned only with obtaining food. It must be seen in reference to a network of obligations, of reciprocal relations, either indirect or direct, and involving intangible as well as tangible commodities, services as well as goods. It must be seen, too, in terms of persons of both sexes doing things for others according to the 'rules', and for social as well as personal reasons, with expectations of some kind of a return always in mind. Even within the immediate sphere of food collection, it was never simply that women obtained one kind of thing, men another; even if it were so, religious elements must also be taken into account... In one way or another, it was men and women in co-operation who formed the basis of traditional economic systems. [601]

885. Continued Importance of Traditional Hunting, Gathering and Fishing Rights.
Aborigines have had to adapt to change and outside influence, including the payment of welfare benefits in cash and the introduction of rations and store-bought food. Nonetheless, especially in more remote areas, hunting, foraging and fishing continue to be of economic and ritual importance, despite the impact of commercial interests. [602] In many cases hunting and fishing practices have incorporated new materials. Nylon fishing nets may have replaced those made of bush fibre, fencing wire may be converted into hooks for fishing spears, guns may very often replace spears, aluminium dinghies are used instead of dugouts, crowbars as digging sticks and car springs as adzes. Yet wooden digging sticks, traditional fishnets and traps, spears, harpoons and natural products such as bloodwood leaves for poisoning fish are still used. [603] Aborigines have become accustomed to newly introduced species in their diet. [604] More fundamentally, material aspirations and internal conflicts (e.g. between young and old) have placed pressures on traditional values such as sharing. Changes to the traditional economy, for example the introduction of shop bought foods, have resulted in fundamental shifts in the economic and social roles of men and women. [605]

In Aboriginal Australia before white settlement, women worked constantly and that contribution made them indispensable to their men folk. Rations relieved women of the burden of food - getting but made them primarily someone's wife and mother. Today women have no security as independent producers but are dependent on social security payments which entail relationships over which they have no control. [606]

Despite all these changes, it is clear that hunting, gathering and fishing are of continuing importance in the lives of many Aborigines. Airman concludes his analysis of the impact of outside influence on the Gunwinggu of North Australia in the following words:

The hunter-gatherer economy is resilient ... but its Achilles' heel is its vulnerability to the presence of large population concentrations. The eastern Gunwinggu economic system has shown remarkable resilience in adapting to changed circumstances following European colonisation. In previous countless millennia, Gunwinggu had extremely limited external contacts. But in the past twenty to thirty years, they have created an economic system, that incorporates important elements of the traditional cultural and economic systems, yet is enmeshed with a complex set of relations with the alien market economy and welfare State. This situation has been possible because, rather than just responding to changed circumstances, Gunwinggu have created their own economic and social environment, within the structural limitations placed on their lifestyle. [607]

Not all remote communities have been able to demonstrate the resilience of the Gunwinggu, and the experience has varied enormously. Empirical studies demonstrate this divergence, but also show how traditional hunting and fishing remain important to many Aboriginal groups. [608] Further studies have documented the nutritional composition of Aboriginal bush foods and have demonstrated that traditional Aborigines continue to use an extraordinarily wide range of plants and fish for different purposes. [609] In doing so they indicate a considerable depth of knowledge of natural resources. [610]

886. The Evidence of Land Claims Hearings.
Evidence of Aboriginal reliance on bush food is important in land claims under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). A key feature of the definition of 'traditional Aboriginal owners' in s3(1) of that Act, and one that must be established before the Commissioner can recommend a grant of land under the Act, is the requirement that the 'local descent group' must be 'entitled by Aboriginal tradition to forage as of right over that land'. Referring to this aspect of the definition, the then Aboriginal Land Commissioner (Justice Toohey) found that at Roper Bar:

There was certainly evidence of a wide range of activities falling within such a broad definition. As well as the hunting of kangaroo, bush turkey, goanna, porcupine and the gathering of sugarbag, yams, berries and various fruits, and fishing in the Roper River, there is regular activity on the claim area to seek out materials for artifacts. Coolamons, didgeridoos, boomerangs, woomeras, spears, pipes and stone knives are made by the claimants. Some are decorated and sold through Mimi Aboriginal Arts and Crafts Pty Ltd in Katherine. Others are used in the daily and ritual life of the claimants. One of the places visited in the course of site inspections, Burunngu, was pointed out as a particularly good source of a certain type of pandanus leaf, suitable for making baskets ... In the end it is unnecessary for me to decide whether the word 'forage' can be given so broad a meaning as to include all these activities. The Act is concerned with entitlement to forage rather than with foraging itself, though the latter may well be the best evidence of the former. There was evidence from witnesses for both estates that people other than the traditional owners of the land may and do come onto that land to fish and search for food. [611]

Evidence of the importance of traditional fishing has also been brought in applications for sea closures in the Northern Territory. [612] During the course of the Western Australian Aboriginal Land Inquiry, the Commissioner, P Seaman QC was presented with evidence of the importance of Aboriginal hunting and fishing in Western Australia. He concluded:

It is clear from the hearings that kangaroo hunting is an important part of South West Aboriginal life. I accept that it is more than a recreation, being a significant source of meat for many Aboriginal families, and a significant expression of their feeling for land and culture which they have lost. They might find it much more difficult to establish traditional hunting and fishing rights than Aboriginal people in more remote areas. [613]

887. Some Quantitative Data.
There is little quantitative data that reliably demonstrates the significance of bush foods today. It has been said that the 'true extent of use/or nonuse of bush foods is unknown'. [614] However three recent detailed studies quantitatively measure the modern significance of bush food. [615] Altman's study at Momega Outstation found that bush foods constituted 81% of the protein, and 46% of the kilo calories consumed. In all some 90 faunal species and 80 plant species were taken for food. [616] Meehan's detailed study, concentrating primarily on the role of shellfish in the diet of the Anbarra taken over an entire year, produced similar results. [617] Speaking of these studies Young has stated that:

the only communities which would show similarly low levels of dependence on purchased foods would be the outstations associated with Yirrkala, Galiwin'ku and Aurukun, and in all cases these contain well under half the total Aboriginal population. In all the other case-study communities - in the Kimberleys, the central desert and the centralised communities of northern regions - store food accounts for most of people's nutritional intake. While there are no detailed analyses of the exact contributions of purchased foods in such places, it can be assumed that it exceeds 80 percent, and in places well over 90 per cent. [618]

Another way of assessing the significance of bush food is to quantify its value in monetary terms. After valuing the subsistence food production at Momega Outstation at market replacement value, Altman concluded that:

Quantifying production for use in this way gives a more accurate representation of the Momega outstation economy, for about 64 percent of total cash and imputed income came from subsistence production. In other words quantification of hunting, fishing and gathering activities indicated that subsistence production was the mainstay of the economy. Only 26 percent of total income (but 72 percent of cash income) came from social security payments; and 10 percent of total income (and 28 percent of cash income) came from production of artefacts for market exchange. [619]

888. Land Use and Ownership of Land.
Discussion of hunting and gathering in terms of sustenance or of tradition does not mean that these questions can be divorced from the question of land. For Aboriginal people the two are inseparable:

The shift from a hunter-gatherer mode of subsistence to a sedentary lifestyle on government settlements, cattle stations, missions and towns has meant more than the loss of !and for Aboriginal men and women. Today they no longer control the resource from which both physical and spiritual sustenance may be drawn. The use one makes of the land and the spiritual maintenance of that land in ritual are intertwined and underwritten by the law. [620]

The relationship between rights to hunt and gather and 'ownership' of or 'title' to land is however highly complex, and has been the subject of much anthropological debate. [621] The terms 'estate' and 'range' have been used to distinguish ownership or custodianship of land from land use, and 'clans' and 'bands' to distinguish land-owning from land-using groups. [622] There is a danger that whatever terms are used may conceal the flexibility and diversity found in Aboriginal societies. [623] Dr Hiatt's study of the Gidjingali illustrates the way in which land using groups may forage over land owned by others. He commented in their case:

If every land-owning unit had had to depend solely upon the resources of its own estate, some would certainly have perished. (During the major tidal inundations salt water alone was available on the estate of one unit and on that of another there was no fresh water at any time). The diets of many others would have been monotonous and, at times, meagre. But the inhabitants did not suffer such hardships because they took open access to food and water for granted. People maintained a roughly uniform standard of living by moving over one another's estates and freely exploiting the resources. The region was rich in natural products. When a community exhausted the food supply in one place, it moved to another. On occasions the members visited neighbouring communities, and at other times acted as their hosts. Sharing deprived no one of basic requirements, and land owners from time to time had the satisfaction of fulfilling expectations of generosity. [624]

889. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
The definition of 'traditional Aboriginal owners' in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) talks not only in terms of the 'local descent group with common spiritual affiliations to a site and primary spiritual responsibilities for that site and for the land', but also requires an entitlement by Aboriginal tradition 'to forage as of right over that land' (s3(1)). The Land Commissioner has taken the view that the requirement of an 'entitlement to forage as of right' must spring from Aboriginal tradition, [625] and that it must involve a right to forage over the land of the descent group. [626] As Justice Toohey pointed out in the Uluru Report:

That may not be the same as the land claimed: in most cases it will not be because the claim area will involve several local descent groups. I do not think it is necessary, in order to find traditional ownership, that each local descent group has a right to forage over an area wider than that for which the group has primary spiritual responsibility... It is beyond question that the members of each estate are entitled to forage as of right over that land. Evidence of this emerged at every turn ... A more difficult question is whether the evidence demonstrated a right in the members of one estate to forage over the land of another. Dr Layton expressed the view that before the people of one estate may enter on to the land of another:

they must first know the songs and then must have seen the sites or been shown the location of the sites in that estate. [627]

Entitlement to forage is the right to hunt and gather food. However, where a grant of land is made under the Act, the grant of land is for the benefit of Aborigines entitled by Aboriginal tradition to the use or occupation of that area of land, 'whether or not the traditional entitlement is qualified as to place time, circumstance, purpose or permission'. [628]The two requirements serve different purposes:

an entitlement to forage goes to a finding of traditional ownership. A right to the use or occupation of land other than that of the local descent group is relevant to the form of any recommendation made. [629]

The Northern Territory land claim experience thus provides judicial recognition of the nexus between land use and claims to 'own' land. But it has also established that the entitlement to forage usually, if not invariably, extends beyond land claimed by one descent group into land of others. The Land Commission's hearings have acted as a catalyst for research into these questions. However they have been limited to those traditional Aborigines who are in a position to claim entitlement to land in the first place. The power to bring a land claim does not assist those Aborigines who have been dispersed and resettled, for whom proof of traditional attachment to their particular land may be no longer possible. Nor does it assist those whose land is no longer 'unalienated Crown land' claimable under the Act. But these people may also, and legitimately, wish to supplement their diet by hunting and gathering on land. Clearly the needs of each group may have to be met in differing ways.

As foreshore rights of landed property extend not only over the adjacent reef, but to the water over it - as in the case of fish caught in the area - so the inhabitants of certain areas appear to have a pre-emptial right to certain distant fishing stations which lie off their part of the coast. [630]

Commissioner Woodward considered that Aborigines generally regarded the estuarine, bays and waters immediately adjacent to shoreline as being part of their land. [631] Little is known about traditional sea rights or fishing practices some distance from land, most research being conducted into estuarine and in-shore fishing practices. Recent anthropological research into traditional territory fights to the seabed has yet to reach the detail and comprehensiveness of that completed on territorial rights to land. However studies in North East Arnhem Land [632] and the Torres Strait [633] indicate that clear territorial sea-bed boundaries can be established, at least in some cases. [634] These have been made the basis for applications for closure of the seas under the Aboriginal Land Act 1978 (NT). Section 12 requires the Aboriginal Land Commissioner to consider sea closure applications referred to him by the Administrator. Matters to be considered by the Commissioner include whether Aboriginal tradition restricts entry by strangers into the particular seas, and whether use of the seas by strangers would interfere with Aboriginal traditional use of the seas by those Aborigines who were traditionally entitled to use the seas (s12(3)(a), 12(3)(b)). On the other hand the Aboriginal Land Inquiry in Western Australia preferred not to recommend a system of sea closures which could create 'more exclusivity than is necessary to protect traditional interests'. [635] The Commissioner rejected the vesting of the sea bed in Aboriginal claimaints and sought other methods of protecting Aboriginal traditional fishing interests. [636]

891. Claims for Recognition of Hunting, Fishing and Gathering Rights.
Although, questions of hunting, foraging and fishing rights remain of considerable importance in some areas, the Commission has had only a limited number of verbal or written comments or submissions on these questions. During the public hearing at Port Augusta there were complaints that pastoralists were trying to keep Aboriginal people off their land contrary to the reservations in their pastoral leases, though it was stated that no charges had been laid under wildlife provisions. [637] In Cairns complaints were made about commercial fishermen taking dugong in their nets, while non-reserve Aborigines were not able to take dugong [638] and it was argued that hunting and fishing rights are indigenous rights. [639] The question of dugong hunting was also raised at Rockhampton. [640] On the North Coast of NSW the Commission was told that two men had been charged with killing wallabies for food and that 95% of Aboriginal people on the north coast are unemployed, resulting in heavy reliance on bush tucker for food. [641] At Aurukun there were allegations that commercial fishermen had placed nets over the mouths of the rivers, fished up the rivers and interfered with sacred sites. [642] At Doomadgee there were concerns about restrictions on the hunting of goanna. [643] Further requests for recognition and protection of hunting and fishing rights were raised in Kowanyama, Edward River, Weipa, Aurukun, Lockhart River, and Mornington Island. [644] The Tasmanian Legal Service pointed out that mutton bird hunters were in breach of the law if they did not obtain a licence, that even where the licence was obtained bag numbers were unrealistic, and that trespass laws conflicted with customary laws. [645] Requests for recognition have also been made in other forums. The Makarrata demands put forward by the National Aboriginal Conference claimed among other things:

7. The rights to hunting, fishing and gathering on all lands and waterways under the jurisdiction of the Commonwealth of Australia.

22. Timber rights to all forests and timbered areas within Aboriginal territories, including all waterways. [646]

Increased involvement for Torres Strait Islanders in matters affecting fishing in the Torres Strait has been sought by the Queensland branch of the National Aboriginal Conference. [647] A State Land Rights Meeting held in Sydney in September 1983 called for New South Wales fisheries and conservation legislation to be amended to accord with traditional hunting and fishing interests. [648] Sea closure applications and submissions to the Western Australian Aboriginal Land Inquiry also raised the question of Aboriginal hunting and fishing rights:

Claims to hunt and fish were made by Aboriginal groups living in the agricultural areas of the South West of the State. Some South West Aboriginal people claim the right to have access to farmland for kangaroo hunting and to pick wildflowers. They want access for the same purposes to fauna reserves and national parks. In the Geraldton area they wish to have access to local stations to do such things as shooting wild goats. In some areas there is complaint that there are farmers who will not give Aborigines permission to shoot kangaroos for food on farms when the same farmers will give permission to professional kangaroo shooters for profit. One South West Aboriginal described how only forty years ago his father supported the family by hunting and fishing in the Brookton area. The expansion of the farmed areas of the South West has ended those possibilities. [649]

892. The Significance of these Issues.
The significance of bush and sea food to many Aboriginal communities both in terms of diet, lifestyle and customary laws and practices, which is clear from the material cited in this Chapter, is strong support for the appropriate recognition of hunting, fishing and gathering rights. Much of the material cited is based on observations and reports of experience in the more remote communities and there are dangers of generalisation. This point was emphasised by the National Farmers Federation. [650] It is true that for other Aborigines, hunting and gathering may not take on such significance, either in terms of diet or of maintaining traditional ways of life. Hunting or fishing may be, for some, a recreational activity and a chance to enjoy particular foods. Further attention will be given to. the diversity of Aboriginal lifestyles and the relative importance of traditional hunting and fishing activities in Chapter 36.

893. Relationship with Land Rights.
As pointed out in Chapter 11, [651] issues of the grant of land rights (and seabed rights) have been treated as outside the scope of this report. The Commission does not seek to duplicate work being done by other Commonwealth or State bodies or commissions of inquiry. Given the extent of this activity, issues of land rights, including customary law rights to land and the seabed, have not been directly dealt with in this Report. The question is what implications this has for the treatment of traditional hunting, fishing and gathering rights. It is possible that the grant of !and or sea-bed by the Commonwealth and/or State Parliaments will resolve some of the significant claims to those rights. Certainly, it is not possible to ignore land rights legislation in any examination of, or recommendations for resolving, such claims. But, as the review of Australian legislation in Chapter 35 will show, important aspects of the topic are not, and cannot be, resolved through land rights legislation, particularly for those Aborigines who can no longer demonstrate traditional attachment to a particular area of land. The relations between land rights and hunting, fishing and gathering rights may well influence the form the Commission's recommendations can take, but they do not prevent consideration of the questions in the context of the present Reference.

894. The Relevance of Common Law Arguments.
It has sometimes been argued that Aboriginal hunting and fishing rights exist at common law -- that is, independently of any legislative or executive action. If so, it would follow that such rights continue to exist until abrogated by legislation (either expressly or by necessary implication). In certain cases therefore common law rights to hunt and fish may not be affected by laws of general application. This could arguably happen in two distinct ways, either through the recognition of hunting and fishing rights as incidents to customary or native title, or through their recognition as independent customary rights of a usufructuary kind. [652]

895. Two Canadian Cases.
Two Canadian cases in particular show how such arguments may be relevant. In R v White and Bob, [653] the defendants were charged with hunting deer during the off season under a British Columbian Game Act. Justice Norris, one of the majority, held that aboriginal hunting and fishing rights had existed in favour of the Indians from time immemorial. These rights continued to exist as 'personal and usufructuary rights' under the British Crown when it acquired sovereignty over Vancouver Island. Since their rights had never been extinguished, provisions of the Game Act affecting the right to hunt and fish did not apply to the defendants. In Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development, [654] the plaintiffs sought a declaration that the lands comprising the Baker Lake area of the Northwest Territories were 'subject to the aboriginal right and title of the Inuit residing in or near that area to hunt and fish thereon'. Justice Mahoney, relying on the Supreme Court's apparent agreement, in Calder v Attorney-General for British Columbia, [655] on the existence of native title in the absence of lawful termination or exclusion, granted the declaration. [656]

896. Other Canadian Developments.
However, Canadian Indian and Inuit hunting and fishing rights are recognised in a variety of ways apart from at common law. [657] These include:

a) The right to harvest shall not be exercised in lands situated within existing or future non-Native settlements within the Territory.

b) The annexation of land by a municipality or any other public body shall not in itself exclude such areas from the harvesting rights of Native people as long as such lands remain vacant.

Certain species of mammals, fish and birds are reserved for the exclusive use of Native people (para 24.7.1; cf schedule 2). This exclusive use includes the right to conduct commercial fisheries in relation to the species of fish so reserved. Non native have the right to hunt and fish in certain areas (para 24.6, 24.8). The management of hunting, fishing and trapping is controlled by the Hunting, Fishing and Trapping Coordinating Committee on which the Cree Native Party, the Inuit Native Party, Quebec and Canada each have three members. [670] The conclusion of the Northeastern Quebec Agreement has lead to the appointment of two representatives of the Naskapi Native Party and to an increase in Quebec's and Canada's representation to four. [671] The Co-ordinating Committee has been operating since 1975. [672] At the request of the Crees, the Quebec Government is currently undertaking a review of the implementation of the whole Agreement including Section 24. [673] The Quebec Government has concluded a further agreement with the Inuvialuit, [674] and is preparing negotiations with other Indian Nations which are expected to:

come up with completely different solutions in order to prevent as much as possible, conflicts with the white people (private landowners, forest concessions, sport fishing and hunting, etc.). [675]

In addition to long-established laws and treaties in Canada, there has been much recent negotiation by Indian and Inuit groups to establish the rights they assert on a sounder basis, to resolve land and related claims through comprehensive claims settlement agreements, and to create secure form of self government. In particular s35 of the Constitution Act 1982 recognizes and affirms 'the existing aboriginal and treaty rights of the aboriginal peoples of Canada'. Section 37 requires a continuing series of meetings between leaders of Indian and Inuit organisations and the First Ministers of Canada and the Provinces in an attempt to define and elaborate upon the constitutional provisions affecting native people. [677] The precise effect of s 35 in reinforcing aboriginal and treaty rights to hunt and fish remains unclear, [678] and for the time being the question is caught up with wider issues of self government and claims settlement.

897. Summary of the Canadian Position.
There is no doubt the range of protections outlined in para 896 is of more significance in Canada than such common law rights as exist. The recognition, particularly at common law. of aboriginal hunting and fishing rights in Canada has in fact 'been quite limited':

even a very general Federal enactment such as the Migratory Birds Convention Act has been held to supersede aboriginal rights and a great variety of overlapping wildlife laws makes the assertion of an aboriginal claim nearly futile. [679]

But hunting and fishing rights continue as a prominent aspect of 'customary law' claims in Canada, to which a great deal of attention continues to be paid. [680] Moreover, the mere existence of common law rights, whatever their scope, has been an important factor in the bargaining position of the Indian and Inuit peoples.

898. The New Zealand Position.
The question whether the doctrine of aboriginal title applies in New Zealand was the subject of considerable controversy earlier this century. [681] The principle was first recognised by the New Zealand Supreme Court in 1847 in R v Symonds. [682] But a subsequent decision by Pendergast J suggested that in the case of 'primitive barbarians' as opposed to civilised nations the issue of a Crown grant extinguished whatever native proprietary rights might exist. [683] The possibility of the continued existence of aboriginal title in New Zealand was reopened by the Privy Council in Wallis v Solicitor-General for New Zealand in 1903. [684] Unease at this decision led to the passing of the Native Land Act 1909, s 84 of which provided that:

Save so far as otherwise expressly provided in any other Act the native customary title to land shall not be available or enforceable as against His Majesty the King by any proceedings in any Court or in another manner. [685]

The combined effect of this legislation and of orders of the Maori Land Court in relation to customary land was to extinguish the possibility of native title to a major part, if not all, land in New Zealand. [686]

899. Absence of Treaties or Special Laws.
It will be clear from the description of Australian legislation in the next Chapter that many of the arguments on which Canadian Indians and Inuit have relied to preserve their hunting and fishing rights are not available in Australia. There is no general federal legislation comparable to the Indian Act 1951 (Can) s 88. No treaties or agreements, ancient or modern, were concluded by or on behalf of the Crown with Aboriginal or Islander people. [687] There is no conferral of exclusive federal legislative power over Aborigines and Aboriginal land, comparable to that in s 91(24) of the Constitution Act 1867 (Can). There has been nothing comparable to the debates about Indian rights leading to, and following from, the 1982 Constitution.

900. Common Law Protection?
There remains at least the possibility that the common law may be held to protect Aboriginal hunting and fishing rights to some extent. Recent Canadian cases [688] and a series of American and Privy Council decisions [689] establish that when sovereignty over a country is acquired a radical or paramount title to that country vests in the Crown, but that the Crown's title may be burdened by pre-existing proprietary rights. Pre-existing native title has been described as arising from:

the recognition by the Crown of a usufructuary title in the Indians to all unsurrendered lands. This title, though not perhaps susceptible to any accurate legal definition in exact legal terms, was one which nevertheless sufficed to protect the Indians in the absolute use and enjoyment of their lands, whilst at the same time they were incapacitated from making any valid alienation otherwise than to the Crown itself, in whom the ultimate title was, in accordance with the English law of real property, considered as vested. [690]

The only Australian decision, Milirrpum v Nabalco Pty Ltd , [691] denied the existence of a doctrine of Aboriginal title in Australia. Justice Blackburn doubted that the principle could apply to a settled, as opposed to a conquered, colony. Nor was he able to find that the doctrine was part of the English common law at the date of settlement of Australia. It would follow that rights to hunt and fish as an incident of such title would also be excluded. [692] The issue has not yet been considered by the High Court, and was acknowledged by at least some members of the Court to be an arguable one in Coe v Commonwealth . [693]

901. Mabo's Case.
A common law right to own, occupy, use and enjoy (and thus to hunt and fish upon) certain islands and areas of the sea is the basis of the plaintiffs' statement of claim in Mabo v Queensland and the Commonwealth, pending before the High Court. [694] The action arises from the Queensland Government's intention to grant land currently held as Aboriginal reserves to Aboriginal Councils by way of a grant of a deed in trust. This would arguably result in the plaintiffs, traditional descendants of the owners of Mer (Murray Islands) and a member of the Island Council, being prevented from residing on Mer for more than one month without the permission of the Minister of Lands. [695] The plaintiffs argue that since time immemorial and since settlement they have continuously occupied, used and enjoyed the land, and have had exclusive rights to hunt, fish and forage. [696] These rights, they claim, were recognised on the acquisition of sovereignty by Great Britain in 1879, and continue to exist until lawfully impaired. They seek a declaration that they are the owners by custom, the holders of traditional native title, or the holders of a usufructuary right, that these rights are not impaired, or alternatively that the defendants are not entitled to impair such rights without paying compensation. [697]

902. Implications of Common Law Claims in Australia.
In practice common law claims (such as that in Mabo's case) are likely to do little to satisfy the aspirations of most Aboriginal people for land rights. Should such common law claims be accepted by the High Court, Aboriginal claimants must first establish the existence of the right at settlement and their direct descent from those entitled to such rights at settlement. The Murray Islanders are exceptional, having well-identified interests in specific areas of land. As a semi-hunting, semi-agrarian community, they have avoided many of the devastating consequences of widespread displacement and resettlement. But even if it were held that the principle of native title exists in Australia, this would not have helped the plaintiffs in Milirrpum, who were unable to prove direct descent from holders of the land in question at settlement. In other words they were unable to prove 'on the balance of probabilities that [their] predecessors had in 1788 the same links to the same areas of land as those which the plaintiffs now claim'. [698] Secondly, Aboriginal claimants must establish that the right has not been abrogated. In Calder's case in Canada, the majority held that an intention by the Crown (evidenced by Proclamation and Ordinance) to exercise absolute sovereignty on British Columbia was sufficient to extinguish native title, the exercise of sovereignty being inconsistent with 'Aboriginal title'. [699] On the other hand, United States' decisions require a clear and specific indication of intent by Congress to extinguish Indian title; dealings with property that are merely inconsistent with Indian title are insufficient. [700] Justice Blackburn, in the one Australian decision on the point, supported the view taken by the three majority judges in Calder's case. [701] The High Court has not yet considered the question. However, it appears that the continued existence of common law rights will be difficult to establish given the extensive statutory basis for land settlement and for the administration of Aboriginal reserves. [702]

903. Customary Rights.
An alternative possibility would be reliance upon hunting or fishing rights as independent proprietary interests of a customary kind recognised at common law. The common law does contain some scope for the recognition of customary rights in some circumstances. The rights relied on must have existed without interruption since 'time immemorial'. The custom asserted must be 'reasonable'. Though its manner of exercise may vary, the right must be 'certain', and in particular the asserted beneficiaries and the locality of the right must be certain. [703] The requirement that there must be proof of a long and uninterrupted use of the right by the inhabitants, and the fact that the custom is unlikely to be considered 'reasonable' where there are others exercising inconsistent rights and asserting control over the subject land, make it difficult to envisage situations where any customary rights could have survived dealings with land in mainland Australia by the Commonwealth and the States. [704]

904. Profits a Prendre.
A distinction is generally made between the right to use land, which comes within the concept of a usufructuary or customary right, and the right to reap the profits from land (e.g. the right to hunt and fish), which cannot be so described because the exercise of such a right could exhaust the subject matter. As such the right to hunt and fish falls more properly into the category of a profit a prendre. [705] However a profit represents an artificial and unduly restrictive way of describing the right of Aboriginal people to forage. For example, the right to fish or take game may be described as a profit for the fish or game once killed can be owned. However the right to take water cannot be a profit a prendre because water cannot be owned, and is not part of the soil. Despite these difficulties, it has been argued that the profit a prendre is useful both:

as a tool for analyzing the aboriginal rights [and] as a technique for protecting them. I agree that there are certain common law problems to any such categorization but they are not insuperable on either theoretical or practical grounds. The profit has always been a technique used by the common law to deal with resource harvesting rights held in gross whether this be hunting, gathering or oil and gas rights. Traditionally a profit could not be vested in a fluctuating body because this would tend to the destruction of the resource. But is this a valid concern with aboriginal harvesting, if we can establish a traditional capacity to self regulate the harvest within the limits of sustainable yields? In any event, it would seem that a simple statutory declaration could surmount any technical difficulties posed by the common law. Finally, a profit classification may be of some merit insofar as it may give aboriginal people access to traditional common law remedies such as trespass and nuisance.

Alternative classifications (such as licences) are far more problematic. [706]

The common law rules relating to profits a prendre may be useful in their limited circumstances, but as a vehicle for recognition of traditional hunting and fishing its use is limited. A particular problem is their vulnerability to extinction by subsequent dealings in land.

905. Common Law or Legislation ?
In the absence of any authoritative decision on the point by an Australian appeal court, it is far from clear whether or what customary or Aboriginal hunting and fishing fights would be recognized at common law. Even if the Australian courts do adopt the approach, which at least some Canadian courts have adopted, of recognizing an original customary title or usufructuary right, it is likely in the overwhelming majority of cases that this will have been cancelled or overridden by State, Territory or Commonwealth law or administrative action, [707] or that no one will now be able to demonstrate historical continuity with the original beneficiaries of such rights, so as to be able to rely on them. In the great majority of cases therefore (if not all cases) it will be necessary to rely instead on Australian land-use, conservation or fisheries legislation to extend protection to Aboriginal traditional hunting and fishing practices.

35. Aboriginal Hunting, Fishing and Gathering Rights Current Australian Legislation

906. Legislative and Administrative Overview.
This Chapter examines Australian legislation as it affects 'traditional' hunting, fishing and gathering activities of Aborigines. It is based on an examination of relevant State, Territory and Commonwealth Acts and regulations, and on discussions with Aboriginal organisations and State and Commonwealth authorities such as Land Departments, Parks and Wildlife Authorities and Fisheries Departments. [708]

907. Historical Background.
As early as 1848, the question had been raised of 'such free access to land, trees and water as will enable [the Aborigines] to procure the animals, birds and fish, etc., on which they subsist', and of the possibility of securing such access by inserting conditions in Crown leases. [709] Between 1867 and 1900, legislation recognising Aboriginal rights to forage was enacted in Western Australia, Queensland, Victoria and South Australia. [710] One example, the Fisheries Act Amendment Act 1893 (SA) s 8, enabled the Governor to declare the whole or any part of any river, lagoon, estuary of the sea, a reserve within which only Aboriginal natives of South Australia would be allowed to fish. [711] This was the first legislative recognition of a fishing right as an independent right, that is, one not couched merely in terms of exemption from prosecution. The intervening years have seen many amendments to the early legislation, with the rights of Aboriginal people to gather food very often being reduced considerably (if not abrogated altogether) in the process.

908. Three Main Areas of Concern.
As the following discussion will indicate, Federal, State and Territory legislation and regulations vary considerably. The legislation is by no means consistent or complete, and in many cases difficulties can arise from divergences between legislation and administrative policy. For convenience it is proposed to distinguish between three main areas:

In each case it is proposed to deal first with any relevant Commonwealth legislation, then with the States and the Northern Territory. In view of the large and complicated body of legislation and administrative practice, this account is substantially descriptive. The questions of principle will be returned to in Chapter 35, against the background of the present law and practice. [712]

909. Wildlife Conservation.
The National Parks and Wildlife Conservation Act 1975 (Cth) makes provision for the establishment and management of parks and reserves in the Territories and elsewhere in Australia, for purposes such as tourism or the carrying out of Australia's rights and obligations in relation to the continental shelf or in relation to agreements between Australia and other countries (s6(1)). In general terms the Act provides that land owned and leased by the Commonwealth may be declared a Park or Reserve or designated a wilderness zone and administered by the Director in accordance with the plans of management relating to that Park or Reserve (s7, 11-14). Under s 71(I) the Governor-General has wide powers to make regulations providing for the protection and conservation of wildlife, and for the preservation of parks and reserves. However such regulations are not to be interpreted as affecting the traditional use of land by Aboriginal people [713] unless expressly stated to do so. Section 70 provides that:

(I) Subject to subsection (2) and to the operation of this Act in relation to parks and reserves and conservation zones, nothing in this Act prevents Aborigines from continuing in accordance with law, the traditional use of any area of land or water for hunting for food-gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes.

(2) The operation of sub-section (1) is subject to regulations made for the purpose of conserving wildlife in any area and expressly affecting the traditional use of the area by Aborigines.

There are as yet no such regulations expressly affecting the traditional use of any area of land by Aborigines. [714]

910. Aboriginal Land.
The National Parks and Wildlife Conservation Act 1975 (Cth) establishes certain basic principles in relation to the Commonwealth's involvement in conservation issues arising on Aboriginal land. Thus the Commonwealth shall not acquire land for a park or reserve designated under State law, as having special significance in relation to Aborigines, without the consent of the State (s6(2)). In addition, section 6(3) provides that:

Land in the Northern Territory, other than land in the Uluru (Ayers Rock-Mt Olga) National Park or in the Alligator Rivers Region as defined by the Environment Protection (Alligator Rivers Region) Act 1978, shall not, without the consent of the Territory, be acquired by the Commonwealth for the purposes of this Part if it is land that is dedicated or reserved under a law of the Territory for purposes related to nature conservation or the protection of areas of historical, archaeological or geological importance or of areas having special significance in relation to Aboriginals. [715]

Section 18(1) provides that the Director of National Parks and Wildlife 'may assist and cooperate with Aborigines in managing land not being a park, reserve or conservation zone held on trust for, vested in Aboriginal people or occupied by them'. However he may do so only after consultation with any Aborigines who have traditional rights in relation to the land, and only in accordance with an agreement between the Director and the federal Minister for Aboriginal Affairs, relevant State Minister or administrative authority, or any other person or body owning the land, as the case may be (s18(2)). [716] In 1984 the Australian National Parks and Wildlife Service appointed an officer to initiate an Aboriginal Assistance Program to more fully implement s 18. Where Aboriginal land is held under lease by the Director of National Parks and Wildlife, it may be declared by the Governor General to be a park or reserve and administered under the terms of the relevant plan of management. [717] In 1985, the Act was amended to clarify the relationship between the Director of National Parks and Wildlife and the Land Councils in relation to the management of Aboriginal land situated wholly or partly within a Park or reserve. The new provision provides that where the Minister and the relevant Land Council agree to establish a Board of Management and, where the park consists wholly of Aboriginal Land, the majority of members shall be Aboriginal and nominated by the traditional owners (s14C(5)). [718] The Board's function is, in conjunction with the Director, to prepare plans of management, to advise the Minister in relation to the future development of the Park and to maintain the management of the Park. In the event of disagreement between the Director and Board, they shall each advise the Minister accordingly, who if unable to resolve the disagreement, shall appoint an arbitrator (sll(11A) -- (lIF)).[719] The Plans of Management for Kakadu and the appointment of the Board of Management at Uluru demonstrate the ways in which the National Parks and Wildlife Service has sought to accommodate Aboriginal interests, as well as the interests of conservation and tourism. If Aboriginal land held under lease by the Commonwealth is declared a park or reserve, then certain activities (mining, the felling of trees, excavations etc.) are prohibited, notwithstanding any Commonwealth, State or Territory law, except in accordance with the plan of management (s 10).

911. Kakadu National Park.
Following 15 years of public interest, and after numerous Government studies and reports, [720] the Kakadu National Park was proclaimed in 1979. The creation of the National Park, on what was Aboriginal land, required amendment to the National Parks and Wildlife Conservation Act 1975 (Cth) and the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The plan of management [721] contains detailed provisions for the involvement of Aboriginal people in the Park's management, [722] including the following:

Despite these provisions, whether effective control lies in Aboriginal hands, indeed whether there is any degree of formal power sharing, has been questioned. [723] However these criticisms pre-date the 1985 amendments to the National Parks and Wildlife Conservation Act 1975 (Cth). [724]

912. Uluru National Park.
The existing plan of management for Uluru National Park was approved in 1983. [725] The plan was to have ceased to have effect on 30 June 1987. However, the grant of Uluru National Park to the traditional owners by the Commonwealth Government, and the subsequent lease of the Park back to the Commonwealth, has led to renegotiation of the management arrangements for the area. The Pitjantjatjara Council and Central Land Council have been involved in negotiations with the Commonwealth and Northern Territory Governments over questions of effective Aboriginal control and management of the Park. Agreement has been reached on the composition of the Board, [726] what comprises six representatives of the traditional owners, one representative each of the Australian National Parks and Wildlife Service, and of the Federal Departments of Sport, Recreation and Tourism and of Arts Heritage and Environment, and two members of the Legislative Assembly of the Northern Territory. The Board when constituted will continue to operate under the existing plan of management. These currently provide for the survey and classification of vegetation in the park incorporating Aboriginal knowledge, together with research on fire management, relying on Aboriginal knowledge of traditional fire regimes (37.2.3-37.2.5).

Pending the outcome of research harvesting by Aboriginals of plants or parts of plants for food, fuel or as primary material for the production of artefacts or for other purposes is to be regulated (37.2.12).

Similar provisions are contained in relation to the hunting of native fauna and food gathering by Aborigines. [727] The Plan of Management further provides for research to examine questions of sustained yield and maintenance of the park ecosystems, in order to determine the feasibility of Aboriginal resource harvesting (44.5.1). Limited harvesting programs which meet approved conservation criteria agreed upon by the Director of National Parks and Wildlife and by the Uluru Aboriginal Advisory Committee, the Conservation Commission of the Northern Territory and, as necessary, a representative of the Central Land Council are to be permitted (44.5.2).

913. Future Directions: Jawoyn Land Claim.
The question of effective Aboriginal control of the Board of Management of a National Park on Aboriginal land has arisen in the context of the Jawoyn Land Claim (near Katherine), currently before the Aboriginal Land Commissioner. On the assumption that the claim will succeed, a draft Jawoyn National Park Act has been prepared on behalf of the claimants, after extensive consultation with them and with others experienced in the management of Cobourg and Kakadu. A 12 man Board of Management is proposed, six members of which shall be traditional owners appointed on the nomination of the Land Council (cl 10(1)). As at Cobourg the Chairman would be appointed from among these six members and would have a casting vote (cl 13). The Board would be required to appoint a Planning Committee whose task is to prepare the management plans. [728] It is envisaged that the Planning Committee itself will prepare the plans, thus allowing for Aboriginal input and placing emphasis on Aboriginal values and priorities in the preparation of management plans. One of the purposes of these plans is the 'maintenance of the Aboriginal traditions of the traditional Aboriginal owners of the park' (cl 26 7(a)). The Board's functions would include the protection and enforcement of the right of Aborigines to use and occupy the park. The Board would have extensive power to make by-laws, provided that 'a bylaw shall not interfere with the use of the park by an Aboriginal traditional owner or an Aboriginal entitled by Aboriginal tradition to use the park' (cl 33(3)). Nor shall a by-law prohibit possession of firearms and other equipment necessary for the exercise of this right although the plan of management may contain such limitations. This proposal was presented prior to the 1985 amendments to the National Parks and Wildlife Conservation Act 1975 (Cth)(sll (11A), 14A14D) and would appear to be subject to these amendments.

914. Wildlife Conservation
The Territory Parks and Wildlife Conservation Act 1976 (NT) provides for the establishment and management of parks and reserves and for the protection of certain wildlife. Section 122 states that 'subject to the regulations made for the purposes of conserving wildlife in any area and expressly affecting the traditional use of the area by Aboriginals', nothing in the Ordinance prevents 'Aboriginals who have traditionally used an area of land or water from continuing to use the area of land or water for hunting, for food gathering (otherwise than for the purposes of sale) and for ceremonial and religious purposes'. No regulations have been made expressly affecting Aborigines under s 122. They thus have unrestricted rights to hunt for food and for ceremonial purposes in the Northern Territory under the 1976 Act. [729] Part IV of the Act prohibits Aborigines from selling, bartering or otherwise disposing to a non-Aborigine any protected animal or partly protected animal without a permit to do so (s29). Such a permit may not authorise the taking of protected or partly protected animals in a sanctuary or reserve (s29(2)). Similarly it is an offence to possess parts of a protected animal dead or alive (s31).

915. Aboriginal Land.
The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) specifically allows for the application of Northern Territory laws to Aboriginal land, to the extent that they are 'capable of operating concurrently with' the Commonwealth Act. [730] The right of Aborigines to utilise wildlife resources is preserved and Territory conservation laws applying to the sea within 2 kilometres of Aboriginal land must allow for the right of Aborigines to use the resources of the sea. Section 73(1) states that the powers of the Legislative Assembly for the Northern Territory extend to'

(c) Laws providing for the protection or conservation of, or making other provision with respect to, wildlife in the Northern Territory, including wildlife on Aboriginal land, and, in partitular, laws providing for schemes of management of wildlife on Aboriginal land, being schemes that are to be formulated in consultation with the Aboriginals using the land to which the scheme applies, but so that any such laws shall provide for the fight of Aboriginals to utilise wildlife resources; and

(d) Laws regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters of the sea, including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition, but any such Ordinance has effect to the extent only that it is capable of operating concurrently with the laws of the Commonwealth, and, in particular, with this Act, the National Parks and Wildlife Conservation Act 1975 and any regulations made, schemes or programs formulated or things done, under this Act, or under that Act.

The Territory Parks and Wildlife Conservation Act 1976 (NT) provides that the Commission may enter into arrangements with a Land Council relating to schemes to protect wildlife on Aboriginal land. [731] Where no such agreement has been entered into within two years of the grant of land under s 12 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), any existing sanctuary or protected area contained in the deed of grant of that land is revoked (s73(2)). For example at Daly River and in the Tanami Desert, where no arrangements have yet been concluded, existing provisions for a sanctuary have lapsed and conservation programs must be renegotiated with the Conservation Commission. [732]

916. Cobourg Peninsula.
The joint involvement of the Northern Territory Conservation Commission and Aboriginal people in the management of the Cobourg Peninsula Sanctuary is provided for by the Cobourg Peninsula Aboriginal Land and Sanctuary Act 1981 (NT). Land on the Cobourg Peninsula is vested in the Cobourg Peninsula Sanctuary Land Trust (s5-7). The Cobourg Peninsula Sanctuary Board, the body corporate (s8), is composed of eight members appointed by the Minister, four of whom, including the Chairman, are appointed on the recommendation of the Northern Land Council (s19(1)). The Chairman has a casting vote, thereby ensuring voting control, [733] though the extent to which there is formal power sharing and true joint management is a more complex question. [734]Before taking certain action the Land Council is required to consult with the traditional owners (s4). The functions and responsibilities of the Board include the preparation of a Plan of Management for the sanctuary (s27), [735] including the 'protection, conservation and management of native flora and fauna within the sanctuary and the natural environment generally '(s27(4f)). The Land Council's consent, and thus the traditional owners' consent, is required before the plan is submitted to the Minister (s27(5)). The Board is empowered under s 35 to make by-laws prohibiting or regulating fishing, access to the land, the use of firearms, traps, the taking of animals. However s 35(3) provides that:

A by-law shall not regulate the use by a member of the group or prohibit him from having in his possession or using any firearm, ammunition, trap, net or fishing equipment used or intended to be used by him in connection with the exercise of his right, as a member of the group, to use and occupy the sanctuary or a part of the sanctuary.

In addition, Parts IV and VIII of the Territory Parks and Wildlife Conservation Act 1976 (NT) relating to protected animals and to administration, together with provisions permitting entry to land, and the authorised destruction of feral or trespassing animals, also expressly apply to the Cobourg Sanctuary. [736] Similarly, regulations and by-laws made under the Territory Parks and Wildlife Act 1976 (NT) apply to Cobourg to the extent that they are not inconsistent with the plan of management (s37(2)). In 1983, the definition of 'land' under the Territory Parks and Wildlife Conservation Act 1976 (NT) s 9 was extended to include the 'sea above any part of the sea bed of the Territory'. Subsequently the Cobourg Marine Park was declared adjacent to the Cobourg Sanctuary. As a consequence the Conservation Commission is able to regulate conservation in the Marine Park under the Territory Parks and Wildlife Conservation Act 1976 (NT) without proceeding by way of consultation with the Board and with the Land Councils under s 35 of the Cobourg Peninsula Aboriginal Land and Sanctuary Act (NT).

917. Wildlife Conservation.
The National Parks and Wildlife Act 1972 (SA) and regulations made thereunder are potentially contradictory and require some clarification. The following provisions of the Act and regulations are relevant:

Regulation 14 provides that any Aboriginal person 'living in his traditional way of life':

This regulation does not however exempt Aborigines entering private land, from the requirement of written consent of the owner.

918. Proposed Reforms.
In 1984, the Director of the South Australian National Parks and Wildlife Service initiated an Interdepartmental Working Group to formulate policy on Aboriginal hunting. In doing so consideration was given. to Research Paper 15. [737] The Working Group's detailed Report recommended that Regulation 14 was inappropriate and should be replaced. [738] In particular, it concluded that:

This would enable a proclamation to declare that defined areas of, for example, the Unnamed Conservation Park or the Nullabor Conservation Park could be used for hunting by Aboriginal people. [740] At Balcanoona where Aboriginal land adjoins a Conservation Park, plans are being made to enable the joint management of the area. [741] The Working Group hold the following criteria important in assessing Aboriginal hunting on reserves under the control of the National Parks and Wildlife Service:

The criteria have been used to formulate policy for Aboriginal hunting in the Gammon Ranges National Park. The Working Group concludes that Aboriginal hunting did not appear to have a significant impact on the species listed, and recommend joint management of the reserve. [743]

919. Native Flora.
Native flora is protected under the National Parks and Wildlife Act 1972 (SA). Section 49 makes provision for the issue of permits to take protected wildflowers and plants. Regulation 5 of the Wildlife Regulations requires the production of reports on the species and number of protected plants and wildflowers taken pursuant to the s 49 permit. Native oranges, native peaches and quandongs are listed in a Schedule of the Act as protected plants. These plants are however only taken very occasionally by Aboriginal people. An earlier Departmental Discussion Paper argued that there should be no restriction on their taking by Aborigines. [744] It recommended that Part IV of the Act (Conservation of Native Plants and Wildflowers) and the corresponding regulations be amended to exempt Aborigines. [745] The Native Vegetation Management Act 1985 (SA) makes it an offence to clear native vegetation without the consent of the Native Vegetation Management Authority (s19, 20) unless the vegetation is in a prescribed area, of a prescribed class, and cleared by a person of a prescribed class or in prescribed circumstances (s20). There is no exemption for traditional land management practices though possibly traditional activities may fall within prescriptions envisaged in s 20.

920. Aboriginal Land.
As has been seen, reg 14 of the National Parks and Wildlife Act 1972 (SA) enables Aborigines to hunt on land set aside for Aboriginal purposes. This regulation applied to reserve land and presumably to Aboriginal land. Some 150 000 sq kilometres of South Australia are Aboriginal land under the Pitjantjatjara Land Rights Act 1981 (SA) and the Maralinga Tjarutja Land Rights Act 1984 (SA). The Pitjantjatjara Land Rights Act 1981 (SA) enables the Governor to make regulations 'regulating, restricting or prohibiting any activity on the lands that may have adverse environmental consequences' (s43(1)(b)). Such regulations can only be made on the recommendation of the Anangu Pitjantjatjara (the relevant Aboriginal body corporate) (s43(2)). Formally, therefore, the initiative in these matters has to come from the Anangu Pitjantjatjara, which also has a right of veto over regulations under s 43(1)(b), at least as to substance but possibly also as to their precise terms. When the Maralinga Tjarutja Land Rights Bill 1983 was first published it contained a provision (cl 39(1)(b)) in the same terms as s 43(1)(b) of the 1981 Act. The Bill was referred to a Select Committee of the House of Assembly, which suggested that clause 39(1)(b) required amendment:

The Maralinga land is a sensitive and arid area. Any future change in its use could have considerable environmental significance. As the regulation stands, the initiation. of any appropriate regulations for environmental controls rests with Maralinga Tjarutja. This approach is in contrast to that adopted in most other areas of the State, where land owners and managers are commonly required to consult with the Government regarding any change of land use and in fact are required to obtain Government approval for several categories of development. Your Committee is of opinion that the power to initiate the introduction of regulations should rest also with the Department of Environment and Planning or any other appropriate agency and for their development to proceed in consultation with Maralinga Tjarutja. This approach is acceptable to the Department and to the Aboriginal people. [746]

In consequence, s 43 of the Maralinga Tjarutja Land Rights Act 1984 (SA) provides that:

(aa) prescribing a form of agreement as a model form of agreement under which exploratory operations may be carried out on the lands and providing that such a model form of agreement shall form the basis of negotiations between Maralinga Tjarutja and any applicant for permission to carry out exploratory operations on the lands:

(a) regulating, restricting or prohibiting the depasturing of stock upon any specified pan of the lands;

(b) regulating, restricting or prohibiting any activity on the lands that may have adverse environmental consequences;

(e) prescribing other matters contemplated by this Act, or necessary or expedient for the purposes of this Act;

(f) prescribing penalties (not exceeding two thousand dollars) for breach of, or non-compliance with, any regulation.

(1a) A regulation shall not be made under subsection (l)(aa) except with the approval of Maralinga Tjarutja.

(2) A regulation shall not be made under subsection (l)(b) except after consultation with Maralinga Tjarutja.

(3) A regulation shall not be made under subsection (l)(c) or (d) except upon the recommendation of Maralinga Tjarutja.

Questions have also arisen with regard to conservation measures in the Unnamed Conservation Park in the far north west of South Australia. Notice was given to the Select Committee of the House of Assembly of Aboriginal interest in adding this park to the Maralinga lands, given the strong traditional interest in these lands. [747] The Select Committee found that both Aboriginal people and the National Parks and Wildlife Service 'have indicated their willingness to establish a joint management arrangement for control of the Park, on the understanding that final responsibility rests with the Minister for Environment and Planning'. [748] It is understood that amendments are to be made to Division 5 of the National Park and Wildlife Act 1972 (SA) to enable the National Parks and Wildlife Service to enter into joint management agreements for the management of reserves in which Aborigines have a vested interest. This proposal would enable negotiations to take place between the Adnjamanthanha people and the Service in relation to Balcanoona. [749] It is proposed that there be conditions embodied in the Park Joint Management Agreement in relation to reserves with which 'Aboriginals have had long-standing traditional associations'.

921. Wildlife Conservation.
In Western Australia a distinction is made between National Parks vested in the National Parks Authority under s 27, 28, 29 of the Land Act 1933 (WA) and administered under the National Parks Authority Act 1976 (WA), and areas subject to the control of the Western Australia Wildlife Authority under the Department of Fisheries and Wildlife, and subject to the Wildlife Conservation Act 1950 (WA).

922. National Parks Authority Act 1976 (WA).
Under the National Parks Authority Act 1950 there is no statutory recognition of the right of Aboriginal people to forage. It is understood that the policy of the National Parks Authority is to allow Aborigines to forage in their traditional style, although this is not provided for in any specific or formal way.

upon Crown land or upon any other land, not being a nature reserve or wildlife sanctuary, but where occupied, with the consent of the occupier of that land, sufficient only for food for himself and his family, but not for sale and the Governor may, if he is satisfied that the provisions of this section are being abused or that any species of fauna or flora which is being taken under the authority of this section is likely to become unduly depleted, by regulation suspend or restrict the operation of this section in such manner and for such period and in such part or parts of the State as he thinks proper. [750]

The exemption in s 23(1) refers to the taking for food. This has not been interpreted in a narrow sense.

In Western Australian the word 'food' as used in Section 23 ... is subject to a broad interpretation as a matter of policy. It encompasses any use, apart from a commercial use, to which an Aboriginal can put his mind. It follows that few restrictions are placed on Aboriginal people with respect to interpretation of Section 23. [751]

So far no regulations have been made under s 23(1). It should be noted that the exemption requires the consent of any occupier of the land. Nonetheless, the then Conservator of Wildlife in Western Australia described s 23 as:

a very powerful [provision]. Aboriginal people acting under Section 23 are not subject to any other provision of the Act and Regulations. Thus there are no restrictions placed on times or methods whereby Aboriginals can take fauna except where nature reserves and game reserves are concerned. [752]

Section 23 does not apply to nature reserves and wildlife sanctuaries where regulations may be made restricting or prohibiting the taking of certain flora and fauna, restricting access to the sanctuaries or reserves, restricting the lighting of fires, use of boats, firearms, and interfering with or disturbing the fauna or natural environment. However in relation to nature reserves, agreements have been reached, pursuant to the Wildlife Conservation Act 1950 (WA) s 12D and s 12E, with Aboriginal groups to take fauna. [753] The fact that s 23 does not apply to nature reserves and wildlife sanctuaries has been the cause of some concern on the part of Aboriginal people. Submissions made to the Inquiry into Aboriginal Land in Western Australia claimed the right to 'cut trees for artifacts, whether in national parks, or nature reserves and to have access not only for ceremonial reasons, but to camp there, make fires, hunt with rifles and fish'. [754]

924. Aboriginal Land.
At present there are just under 21 000 hectares of Aboriginal land in Western Australia. [755] The Land Act 1933 (WA) s 29(1)(a) allows for land to be reserved for any purpose and the reservation or disposition itself can contain a specification for the 'use and benefit of Aboriginal inhabitants'. The Aboriginal Affairs Planning Authority Act 1972 (WA) s 25(1) allows for 'any Crown land to be reserved for persons of Aboriginal descent'. Crown land so reserved is held by the Aboriginal Land Trust, which is required to use and manage the land for the benefit of and according to the wishes of Aborigines (s23). The Governor may make regulations for the management and use of reserved land and for the provision of appropriate means of consultation with the representatives of Aboriginal people (s51(2)). Customary hunting and foraging rights are recognised under s 32, which provides that the Governor may declare areas of the reserved lands to be for the exclusive use of 'Aboriginal inhabitants of that area, being persons who are or who have been normally resident in their area or their descendants' (s32(I)). Section 32(2) allows for documentary evidence of Aborigines so entitled, including evidence of the benefit derived from the 'enjoyment of the natural resources related to customary land use'. So far there have been no instances of resort being made to this section. [756]

925. Aboriginal Land Inquiry and Hunting Rights.
Complaints to the Land Commissioner were also made on the ground that national parks and nature reserves had been created in traditional country without consultation. [757] In recommending that Aborigines should have the right to apply to the tribunal for a grant to title to a reserve or park, the Commissioner stated that:

4.73 the public authorities managing such reserves or parks should be given wide powers to negotiate with Aboriginal organisations to achieve settlements of Aboriginal claims to this sort of public land. If an accommodation cannot be reached, then I recommend that the Aboriginal organisation concerned should have the right to apply to the Tribunal for the grant of title to the reserve or park.

4.74 Various problems are likely to arise when balancing Aboriginal aspirations with the public interest in the preservation of reserves and the use of parks. I consider it necessary to give the Tribunal jurisdiction to dispose of the application upon the following basis' It shall make the grant if there are appropriate means of accommodating the public interest with Aboriginal ownership or if it is satisfied that the public interest would not be unduly disadvantaged by the granting of title to Aboriginal interests.

4.77 I do not recommend that the Tribunal should be confined to making or refusing a grant of the public land concerned. It should also have the power if it thinks fit to make orders for access in favour of members of the applicant organisation on such terms and conditions as are appropriate to protect the public interest in the reserve or park. For that purpose it should also have power to make an order declaring what portion of the general laws applicable to the use of the park or reserve should not apply to the Aboriginal people who are afforded access by the order.

The Western Australian Environment Protection Authority has a large number of proposals relating to the creation of Conservation Reserves at varying stages of implementation. [758] The Aboriginal Land Inquiry found that while there has been considerable public input into these proposals, little allowance has been made for Aboriginal aspirations. [759] The Commissioner recommended that the Environmental Protection Act 1971(WA) s 4 be amended to empower the Environmental Protection Authority to give consideration to Aboriginal concerns. [760] Failing successful negotiations with the Authority there is still the possibility that Aboriginal organisations may make a claim to the land the subject of a recommendation. [761] On the question of the application of general laws such as conservation laws, the Commissioner commented'

I recommend that modified title-holders should in general be bound by all those general laws which affect the use which landowners may make of their land, or the activities which may be carried out on land. However there will be occasions where their absolute application would frustrate reasonable Aboriginal aspirations in relation to the use of modified titles. I recommend that the Tribunal should have the power to make an order in relation to the use of land which is the subject of an application before the Tribunal, declaring what portion of the general laws should not apply to the land and to the members of the claimant organisation. [762]

926. The Aboriginal Land Bill 1985 (WA).
This recommendation was not endorsed in the Bill to implement aspects of the Report, which was unsuccessfully presented to the Western Australian Parliament in 1985. [763] The Aboriginal Land Bill (1985) (WA) did however propose that the Governor on the recommendation of the Aboriginal Land Tribunal could declare any national park, nature reserve on marine park a special management area (cl 96) and appoint a management committee to oversee the management of the area (cl 97). An Aboriginal land corporation or regional Aboriginal organisation, acting on behalf of Aborigines with entitlements, by traditional association or residence to the land, would have been able to apply for the land to be declared a special management area (cl 98, 100) or for a lease of the land to be granted on the recommendation of the Aboriginal Land Tribunal (cl 99, 101). The Tribunal would have to be satisfied that the grant of the lease or the creation of a special management area does not 'significantly affect the achievement of the purpose for which the land is held by the controlling body' (cl 106(2)(b)(i)) and that the declaration may be made in such a way as to protect the use and enjoyment of any existing interests (cl 106(2)(b)(ii)).

927. Wildlife Conservation.
The Fauna Conservation Act 1974 (Qld) repealed the Fauna Conservation Act 1952 (Qld), s 78 of which had exempted Aborigines from its provisions relating to the killing of native birds and animals, so long as the killing was for food and provided the employment terms relating to the particular Aborigine did not include food. The 1974 Act makes no specific provision to allow Aboriginal people to take any native birds, mammals, reptiles or animals. In addition s 34 of the National Parks and Wildlife Act 1975 (Qld) applies specifically to National Parks and makes it an offence to interfere with the forest products, notwithstanding anything to the contrary in any other Act. Apparently the provisions of the National Parks and Wildlife Act 1975 (Qld) and the Fauna Conservation Act 1974 (Qld) are not rigorously enforced against Aboriginal people hunting for food and not for purposes of sale. However given that the economy of many Aboriginal communities relies heavily on traditional hunting and fishing, [764] legislative protection appears to be necessary, particularly in Cape York, where Cape York Peninsula Wildlife reservations have been declared over areas still subject to traditional use by Aboriginal people.

928. Aboriginal Land.
Until 1984 the prohibition against hunting native animals in Queensland extended equally to residents of Aboriginal reserves. The only exemption to this general prohibition was in the Local Government (Aboriginal Lands) Act 1978 (Qld) s 29, which provides that, notwithstanding the provisions of any Act, an Aboriginal resident of the shires of Aurukun or Mornington may hunt native fauna and 'consume the same to the extent necessary for the sustenance of himself and members of his family or household'. Aboriginal residents may also gather, dig and remove forest products within the shire for domestic use. This meant that Aboriginal residents of Aurukun and Mornington Island were in a better position in this respect than residents of Aboriginal reserves in Queensland. Recent amendments to the Land Act 1962 (Qld) enable reserve land to be returned to Aboriginal people under a deed of grant in trust. [765] The management of such 'trust areas' is to occur under the Community Services (Aborigines) Act 1984 (Qld), and the Community Services (Torres Strait) Act 1984 (Qld). Section 77 of the former Act provides that:

(1) Notwithstanding the provisions of any other Act, a member of a community resident in an area shall not be liable to prosecution as for an offence for taking marine products or fauna by traditional means for consumption by members of the community.

(2) Subsection (1) shall not be construed to authorize the sale or other disposal for gain of any marine product or fauna taken by traditional means. [766]

929. Wildlife Conservation.
The National Parks and Wildlife Act 1974 (NSW) makes it an offence to take or kill any protected and endangered fauna with that State without a licence. In National Parks, which form a large part of available Crown land in the State, it is an offence to take or kill any animal without a licence. The provisions of the Act dealing with nature reserves are similar, in that it is also an offence (unless the person is a licencee, lessee or occupier of the land) to take or kill any animal, to carry, discharge or possess a prohibited weapon, or to cut, destroy, pick or set fire to any tree, scrub, plant, flower or vegetation. In wildlife refuges it is an offence to kill any native animal unless licensed, though fishing is permitted, and certain species of animals may be exempt under certain conditions. There are provisions allowing for open seasons, generally or in specific areas of New South Wales, for specified fauna. [767] The lack of any clear protection of Aboriginal interests has, in the past, created administrative difficulties. In one matter at Wellington (NSW) four men were charged by police with the use of firearms for the purpose of taking protected fauna (goanna) and with the use of a firearm in a public place. To assist in mitigation of penalty, the Minister for Aboriginal Affairs sought a statement from the National Parks and Wildlife Service, 'detailing the impetus' to recognise 'traditional hunting and gathering practices'. The Service replied that since the charges were laid under the Firearms and Dangerous Weapons Act 1973 (NSW), it was 'not a matter in which the Service should be involved'. [768] This was despite the fact that the Service itself had generally sought to avoid prosecuting Aborigines under the National Parks and Wildlife Act 1974 (NSW). A State Land Rights meeting held in September 1983 called for the amendment of the Act so that it would not apply to traditional hunting and fishing. [769] The Director of the New South Wales National Parks and Wildlife Service subsequently indicated that:

individual Aboriginals would not be required to hold licences under the National Parks and Wildlife Act subject to certain conditions. Local Aboriginal Land Councils would be encouraged to have an active role in wildlife management to ensure that populations are not jeopardised .... In summary, the Service's view is that Aboriginal hunting and gathering rights do not necessarily conflict with nature conservation values so far as locally common species are concerned. [770]

To this effect the Service announced in 1986 regulations under s 70(7), 71(4), 100(2) of the Act, exempting Aborigines and their dependants from the provisions relating to the taking or killing of protected fauna except in relation to raptors, parrots and endangered fauna (i.e. s 70(1), 70(2), and 98(2)). Further exemptions under s 71(4) and 117(5) exempt Aborigines and their dependents from provisions prohibiting or restricting the gathering and harvesting by Aborigines of native plants provided that in the case of a protected plant they must be harvested or gathered without harm to the plants or unreasonable interference with their means of propagation (i.e. s 71(10 and 117(1)). The taking by Aborigines must be for domestic purposes. The service has advised that it is:

not prepared to permit hunting and gathering in national parks or nature reserves. The Service's view in relation to state game reserves is, in general terms, the same and therefore requires some comment. These areas are set aside primarily for their importance as breeding areas for birds, some of which happen to be traditional (and 'legal', during open seasons declared under Section 95 of the Act) game birds. The use of these areas for controlled hunting during limited times of the year is very much secondary to their nature conservation values. Notwithstanding these general comments, the Service would be prepared to consider proposals for hunting and gathering in particular state game reserves on a case by case basis. [771]

The Regulation does not apply to hunting and gathering on lands to which Aborigines do not have a legal fight of access. [772]

930. Aboriginal Land.
Although the Aboriginal Land Rights Act 1983 (NSW) provides for certain rights of access to land for the purpose of hunting, fishing and gathering, [773] it makes no special provision for hunting, fishing and gathering on Aboriginal land. [774] The position on such land (when it is vested under the Act) is accordingly the same as for other land in the State.

931. Wildlife Conservation.
The Wildlife Act 1975 (Vic), the National Parks Act 1975 (Vic) and regulations made thereunder provide no particular exemptions for Aboriginal people. The Commission is not aware of any difficulties experienced by Aboriginal people with the operation of these Acts. Aboriginal organisations and the relevant authorities had few complaints.

932. Aboriginal Land.
The Aboriginal Land Claims Bill 1983 (Vic) proposed to establish machinery for granting Crown Land to Aborigines. Upon such a grant any national park under the National Parks Act 1975 (Vic) on the land would cease to exist (el 13(3)), while any lease under the Act would continue but would not be renewable without the consent of the Aboriginal claimants (cl 13(4b)). The Aboriginal claimants would be vested with:

(a) wildlife which has been declared by the Governor in Council to be notable or endangered wildlife pursuant to the provisions of the Wildlife Act 1975; or

(b) wild flowers or native plants which have been proclaimed to be protected pursuant to the provisions of the Wild Flowers and Native Plants Protection Act 1958. [775]

The Bill was introduced into the Victorian Parliament in March 1983 but has not been proceeded with, pending further discussion and consultation with Victorian Aborigines.

933. Wildlife Conservation.
The National Parks and Wildlife Act 1970 (Tas), [776] the Crown Lands Act 1976 (Tas), [777] the Forestry Act 1920 (Tas), [778] and the regulations made under these Acts contain no special provisions to accommodate Aboriginal interests. These Acts are similar to those of other States in that they restrict some kinds of hunting and fishing without a licence, and generally the taking of vegetation, lime shell, sand, or any natural substance from Crown land. They protect flora, fauna and provide for permits for taking certain wildlife and eggs; they also prohibit hunting of indigenous animals and birds in State forests. So far as Tasmanian Aborigines are concerned, it appears that mutton birding gives rise to a particular problem. [779] Mutton birds are a protected species for which a licence is required. Aboriginal people have been advised by the Tasmanian Aboriginal Legal Service to apply for licences to hunt mutton birds commercially. The purchase of Trefoil Island for the Trefoil Island Company by the Aboriginal Development Commission has facilitated the taking of mutton birds on the island by local Aborigines. No amendments to existing legislation to enhance Aboriginal rights in this respect are envisaged by the Tasmanian authorities.

934. Aboriginal Land.
No land in Tasmania is specifically set aside by Tasmanian law for the use or benefit of Aborigines. The Aboriginal Development Commission has however purchased 19.8 hectares on Cape Barren Island in addition to Trefoil Island.

935. Access to Non-Aboriginal land.
The provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), entitling Aborigines to have access to Aboriginal land under that Act in accordance with Aboriginal tradition, have been referred to already. [780] In addition to general legislation dealing with hunting and gathering and specific legislation dealing with Aboriginal land rights, there is provision in the Northern Territory and some States for Aboriginal access to land (other than Aboriginal land) for these purposes. [781] There are no access provisions enabling Aboriginal people to enter land to hunt for food in Queensland, [782] Victoria or Tasmania. It remains to examine access provisions that exist in the Northern Territory, South Australia, Western Australia and New South Wales.

936. Northern Territory.
Section 24(2) of the Crown Lands Act (NT) as amended in 1985 provides that in any Pastoral lease under the Act a reservation in favour of Aboriginal inhabitants of the Northern Territory shall permit certain Aborigines to:

(b) to take and use the water from the natural waters and springs on the leased land; and

(i) to take or kill for food or for ceremonial purposes animals ferae naturae; and

(ii) to take for food or for ceremonial purposes vegetable matter growing naturally, on the leased land. [783]

This right does not apply to leased land within two kilometres of a homestead, except in certain limited circumstances (s24(3)-(5)). Section 24(6) also provides that where the lease contains a reservation in favour of Aborigines anyone who without just cause interferes with a full and free exercise of this right by Aborigines is subject to a $2000 penalty. 'Just cause' includes any reasonable activity on behalf of the lessee or person having an interest in the lease to ensure the proper management of the lease. In 1982, s 24 was held to apply as a defence to a charge of discharging a firearm on property occupied by another, contrary to s 94(I) of the Firearms Act 1979 (NT). [784] The defendant was in possession of two cooked kangaroos and admitted having shot them. Section 24(2)(c) of the Crown Lands Act provides that the right to take for food is 'subject to any other law in force in the Northern Territory'. Section 94(3) of the Firearms Act 1979 (NT) provides that it is a defence that the defendant was authorised by another law in force in the Territory to discharge the firearm. Chief Justice Forster held that, since s 94(3) of the Firearms Act 1979 (NT) was 'passed against the background of the permission for Aboriginal people to take wild animals on their own country', a permission of long standing recently renewed, it must be read subject to that permission. [785] While this result was undoubtedly desirable, the reasoning is not without its difficulties. Section 24 provides that where a lease contains a reservation in favour of Aboriginal people then that reservation is to be read as permitting Aboriginal people to take food and to use the waters. It does not confer on Aboriginal people the right to hunt and fish as against the world. The principal consequence of s 24 is that anyone who interferes with the exercise of the right it confers is liable to a penalty. [786] An alternative, and possibly preferable, basis for the decision on the facts would have been to find that the occupant had, pursuant to the terms of the lease, consented to the discharge of a rifle on his land. This constitutes a defence under s 94(2) of the Firearms Act 1979 (NT).

937. Nexus Requirements.
Before 1978 all Northern Territory Aborigines enjoyed the right to enter land. In 1978 the right to enter land was limited to Aboriginal inhabitants of leased land and Aborigines of the Northern Territory who in accordance with Aboriginal tradition were entitled to inhabit the leased land. On the assumption that the term 'inhabit' is to be given its ordinary meaning this limitation could have several negative consequences. Aboriginal inhabitants of South Australia, for example, could not benefit from the section should they wish to hunt across the border in the Northern Territory. The limitation of s 24 to those Aborigines who in accordance with Aboriginal tradition are entitled to inhabit the leased land was unduly restrictive, in that in the eastern part of the Territory, there were real difficulties with Aboriginal communities who had suffered great displacement from the land and who may not be able to prove that they were traditionally entitled to inhabit, as distinct from foraging on, the leased land. Given the distinction, observed in the land claims hearings, between 'primary responsibilities', and rights to forage, [787] the right to reside was an unduly restrictive criterion for the purposes of s 24. Justice Toohey accordingly proposed the following amendment to s 24(2):

(a) deleting the words 'the Aboriginal inhabitants of the leased land and the Aboriginal inhabitants of the Northern Territory who in accordance with Aboriginal tradition are entitled to inhabit the leased land'; and

(b) substituting the words 'the Aboriginal residents of the leased land and Aboriginals entitled by Aboriginal tradition to the use or occupation of the leased land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission'. [788]

Amendments passed in 1985 provide that a reservation in favour of Aboriginal inhabitants of the Northern Territory now entitles those Aborigines who ordinarily reside on the leased land, or on land which has been excised since 1979, or who are entitled by Aboriginal tradition to use or occupy the leased land to enter leased land and to hunt and forage (s 24(2)(a)-(c)). However the amendments make it clear that the rights conferred do not allow Aborigines already entitled to reside on the land to reside 'other than at the place on the leased land where they ordinarily reside', nor do they allow other Aborigines to take up residence on the leased land. [789] Without legislative provision for residential excisions from pastoral leases, the effect of the amendment will be to restrict rather than simply clarify rights under s 24(2).

938. Further Limitations on Access Rights.
Section 24 was also amended in 1978 to incorporate many of the suggestions made by Justice Woodward in the Second Report of the Aboriginal Land Rights Commission. [790] Although he did not recommend that Aboriginal claims to the reversion of pastoral properties be granted, Justice Woodward considered that the existing rights of Aboriginal people to enter, travel over, and camp upon such country should be strengthened. He was critical of the fact that the right existed merely as a reservation in pastoral leases, and that at that time, the only penalty was forfeiture:

I have no doubt that most cattle station proprietors and managers accept their responsibilities in this connection quite willingly. However I have been told of a number of instances where Aborigines have been prevented, or at least discouraged from exercising their rights. It seems to me that these rights should now be directly protected by legislation, that they should be amended to meet the requirements of the present day, and that realistic penalties should be provided for any breach. It has also been suggested that rights should be limited to those having a traditional interest in the land in question. However no such distinction has previously been drawn and it would create problems in practice. The matter might have to be reconsidered in future if the privilege were abused by people having no traditional interests. [791]

He also considered that Aborigines should be entitled to make use of bore waters provided that they complied with any reasonable requirements of the pastoral lessee concerning such use. This recommendation has not been adopted. Despite the adoption of some of these recommendations by amendments in 1977 and 1978 to the Crown Lands Act (NT), the right to hunt and forage is still only incorporated as a reservation in a lease rather than being directly recognised in legislation. However in his review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Justice Toohey questioned whether much would be achieved by legislation on this point. [792]

939. South Australia.
The Pastoral Act 1936 (SA), Schedule I provides that leases shall contain such exceptions and reservations in favour of the Aborigines of the State, as may be prescribed, or as the Minister may require. As a matter of practice pastoral leases do contain a reservation in favour of Aboriginal people.

A reservation included as clause 1 in the standard form of South Australian pastoral lease provides:

And also reserved to Aboriginal inhabitants of the said State and their descendants full and free access into, upon, over and from the said land except such pans as improvements have been erected upon and in and to the springs and surface waters thereon and to make and erect wurlies and other native dwellings and to take and use for food birds and animals ferae naturae as if this lease had not been made.

Apparently conflicts continue to arise between pastoralists and Aborigines over the operation of this clause. [793] The Arid Lands Management Review Committee (now disbanded) stated that it has been suggested that the reservation 'conflicts with racial discrimination attitudes and provisions in the ninth decade of the twentieth century'. [794] The Committee recommended that:

Legislation should henceforth specify that the Reservation in Leases in favour of Aborigines is applicable to those pursuing their traditional lifestyle travelling on foot in bona fide pursuit of their traditional game, and utilising traditional weapons and artifacts. [795]

Such a provision would appear to conflict with the policy of the National Parks and Wildlife Service. [796] However the Arid Lands Review Management Committee's proposal was rejected as 'contra to the policies of the present South Australian Government', [797] whose stated policy in relation to access rights to pastoral lease lands is to 'maintain existing Aboriginal rights without either extension or curtailment thereof'. [798] It is to be hoped that this policy extends to the creation of new perpetual leases as envisaged by amendments in 1985 to the Crown Lands Act 1929 (SA), though the position is by no means clear. An earlier Interdepartmental Working Group on the South Australian Pastoral Lands - Tenure, Administration and Management (1981) recommended that the reservation of rights only extend to Aboriginal inhabitants of leased land who in accordance with Aboriginal tradition are entitled to inhabit the land in question. [799] This recommendation has also been rejected. [800] The Working Group recommended that the right to take, kill or use for food or for ceremonial purposes, native animals and vegetable matter grown on the leased land should be subject to any other law in force in South Australia, such as the National Parks and Wildlife Act 1972 (SA). [801] That Act makes it an offence for a person to be on private land (including pastoral land) for the purpose of hunting without the written consent of the owner obtained within the preceding six months (s68b(1)). It appears to be that Aborigines would have to obtain written permission to hunt on pastoral lands. However the Working Group set up under the National Parks and Wildlife Service (SA) was critical of these provisions, [802] which appear designed to deprive most Aborigines of any rights to hunt or forage. The South Australian Department of Land's has advised that its response to this Working Group's report is as follows:

(a) General acceptance of and agreement with the maintenance of hitherto existing Aboriginal access and hunting rights on pastoral lease lands; with

(b) Introduction of a regulatory provision requiring Aborigines to make all reasonable efforts to advise pastoral lessees on each occasion.

(1) of their intention to enter the subject lease for the purpose of taking game for food/tribal purposes; and

(2) of the general area or paddocks of the Run in which they propose to pursue these rights. [803]

940. Western Australia.
The Land Act 1933 (WA) s 106(2) provides that 'the. aboriginal natives may at all times enter upon any unenclosed and unimproved parts of land the subject of a pastoral lease to seek their sustenance in the accustomed manner'. [804] This provision refers only to 'sustenance'. [805] It is unclear whether taking for ceremonial use is included, although on a liberal interpretation use for ceremonial purposes might perhaps be described as 'sustenance'. It is understood that, with the exception of nature reserves where no shooting is allowed, the Department does not object to the use of guns. Neither s 23 of the Wildlife Conservation Act 1976 (WA) nor s 106(2) of the Land Act 1933 (WA) restricts foraging to those Aborigines who traditionally inhabit the land in question, or who are traditionally entitled to hunt and forage in the area. The view has however been expressed that Aborigines from other areas and with no special needs should not be entitled to the benefit of these provisions. The Aboriginal Land Commissioner made the following comment on s 106(2):

That provision was described at the Pastoralists and Graziers hearing as an anachronism, presumably upon the view that Aboriginal people are no longer dependent upon that sustenance for their survival. The provision is anachronistic because they are no longer absolutely dependent upon hunting and fishing for their sustenance, and also because there will be few unenclosed and unimproved parts of pastoral leases... I recommend that Aboriginal groups should be able to seek access to pastoral leases by virtue of traditional association with or long association by residence on or use of the land concerned. I also recommend that they should be able to seek access to hunt, fish and forage on public lands. [806]

But these rights of access, he recommended, should not extend to Aborigines generally, as distinct from those with historical or traditional associations with the land in question. In the absence of agreement with the landholder, it was proposed that the Tribunal be able to make access orders, in favour of identifiable persons, on conditions preserving the 'reasonable privacy of the occupiers' and not unduly interfering with the use of the land. [807] The Land Commissioner's recommendations in relation to public land were substantially endorsed in the Aboriginal Land Bill 1985 (WA) cl 69-94. Aborigines entitled in respect of the land in accordance with local Aboriginal tradition would have been entitled to apply for an order conferring the 'right to hunt and fish and gather food for domestic purposes' (s71, 74). The Governor could make such an order on the recommendation of the Aboriginal Land Tribunal (cl 73). The Tribunal would be required to satisfy itself that such an order did not 'significantly affect' the purposes for which the land is held, and that it protected any existing interests or rights in the land (cl 88(2)(a)(b)). However the Bill was defeated in the Upper House.

941. New South Wales.
The Aboriginal Land Rights Act 1983 (NSW) makes specific provision for Aboriginal people to have access to land for the purpose of hunting and fishing. Section 47 provides that:

Subject to the provisions of any other Act, and any rule, by-law, regulations, ordinance or like instrument, a local Aboriginal Land Council may negotiate agreements with the owner or occupier of any land to permit specified Aboriginal groups to have access to land for the purpose of hunting, fishing or gathering on the land.

Under s 48(1), where a Land Council seeks a right of access to land traditionally used for hunting purposes, or to land giving access to any land so used, and has been unable to negotiate an agreement to that effect, the Council may apply to the Land and Environment Court for a permit, which may be subject to conditions, conferring these rights. Any owner of !and who refuses access to permit holders is guilty of an offence. These provisions have not yet been used.

942. Divided Responsibility.
Constitutional authority over fisheries within Australia and in Australian waters is shared between the Commonwealth and the States. In particular the Commonwealth has specific power under s 51(x) over 'fisheries in Australian waters beyond territorial limits'. Although Commonwealth legislation has recognised 'traditional fishing' as a special category for some purposes, the law has being going through a process of change. Special provision for 'traditional fishing' is made under the Torres Strait Treaty of 1978 and legislation to implement the Treaty has been enacted. The provision for 'traditional fishing' in the Fisheries Act 1952 (cth) (which in this respect applied only to external territories) has been repealed. Special local provision for such fishing is made by local zoning plans under the Great Barrier Reef Marine Park Act 1975 (cth). These three areas will be discussed in turn.

943. Torres Strait Treaty. [808]
The Torres Strait Treaty determines sovereignty over various islands and establishes fisheries and a seabed boundary between Australia and Papua New Guinea in the Torres Strait, and makes other provisions for the area. In particular, Part 4 of the Treaty establishes a 'protected zone', extending from the Papua New Guinea coast south to a line north of Wednesday Island off the tip of Cape York Peninsula and including most of the Torres Strait area. Art 10 provides that:

Traditional fishing is defined to mean 'the taking, by traditional inhabitants for their own or their dependents' consumption or for use in the course of other traditional activities, of the living natural resources of the sea, seabed, estuaries and coastal tidal areas, including dugong and turtle'. [809] Although the traditional inhabitants of the zone are Torres Strait Islanders rather than Aborigines, and recognition of their traditional fishing rights might be regarded as outside the Commission's Terms of Reference on the recognition of Aboriginal customary laws, [810] this is one area where the interests and traditions of Aborigines and Torres Strait Islanders are closely related. Moreover, the provisions of the Treaty are of considerable interest as a carefully worked out international arrangement establishing priorities as between conservation, traditional fishing and commercial fishing. Art 11(1) of the Treaty provides that 'free movement and the performance of lawful traditional activities in and in the vicinity of the Protected Zone by the traditional inhabitants of the other Party' shall, subject to the other provisions of the Treaty, be permitted. Art 12 provides that:

Where the traditional inhabitants of one Party enjoy traditional customary rights of access to and usage of areas of land, seabed, seas, estuaries and coastal tidal areas that are in or in the vicinity of the Protected Zone and that are under the jurisdiction of the other Party, and those rights are acknowledged by the traditional inhabitants living in or in proximity to those areas to be in accordance with local tradition, the other Party shall permit the continued exercise of those rights on conditions not less favourable than those applying to like rights of its own traditional inhabitants.

The two Parties agree to take necessary measures to protect the marine environment (Art 13) and to identify and protect 'species of indigenous fauna and flora that are or may become threatened with extinction' (Art 14(I); cf Art 14(2)). Art 14(4) provides that:

In giving effect to the provisions of this Article each Party shall use its best endeavours to minimise any restrictive effects on the traditional activities of the traditional inhabitants.

Seabed mining and drilling are prohibited for 10 years after the Treaty enters into force (Art 15). The parties agree to consultation and liaison in the implementation of Part IV, in particular through a local representative (Arts 17, 18) who is required in the exercise of his functions to:

consult closely with representatives of the traditional inhabitants of his country, particularly in relation to any problems which may arise in respect of free movement, traditional activities and the exercise of traditional customary rights as provided for in this Treaty, and convey their views to his Government (Art 18(3)(a)).

A Torres Strait Joint Advisory Council consisting of members from each Party (3 of them representing the traditional inhabitants) is established; its functions involve reviewing the working of the Treaty, including:

any developments or proposals which might affect the protection of the traditional way of life and livelihood of the traditional inhabitants, their free movement, performance of traditional activities and exercise of traditional customary rights as provided for in this Treaty (Art 19(2)(b)).

In doing so the Advisory Council must consult with the traditional inhabitants and report their views to the Parties in any reports or recommendations made (Art 19(4)). The provisions of Part 5 of the Treaty deal with Protected Zone Commercial Fisheries. Art 20 describes the relative position of traditional fishing visa vis conservation interests in the following terms:

944. Commonwealth Legislation Implementing the Treaty.
These 'striking and original' provisions [811] are implemented at the federal level by the Torres Strait Fisheries Act 1984 (Cth) and the Torres Strait Treaty (Miscellaneous Amendments) Act 1984 (Cth). The Torres Strait fisheries Act 1984 (Qld) is the counterpart legislation designed to implement the Torres Strait Treaty within Queensland waters, and outside those waters within the protected zone. The Torres Strait Fisheries Act (Cth) in effect creates four categories of fishing within the Zone, viz:

At the same time s 14 of the Torres Strait (Miscellaneous Admendments) Act 1984 (Cth) amended the Fisheries Act 1952 (Cth) so as to exclude from its operation fishing in the Protected Zone. There is no equivalent in the Torres Strait Fisheries Act 1984 (Cth) to s 5A(2) of the Fisheries Act 1952, which makes that Act exclusive of State law in relation to commercial fishing or fishing from foreign boats. Accordingly, Queensland fisheries legislation applies, subject to any inconsistent provisions in the Torres Strait Fisheries Act 1984 (Cth), to such fishing in the Protected Zone. [813] The Torres Strait Fisheries Act 1984 (Cth) however does not apply at all to private fishing (i.e. private fishing, not being traditional fishing) from an Australian boat (s7). It is intended that private fishing with the use of Australian boats will be regulated under Queensland law. [814] Before describing the priorities which may result from these various distinctions, certain other features of the Torres Strait Fisheries Act 1984 (Cth) must be described.

945. Torres Strait Fisheries Act 1984 (Cth).
That Act does not in terms create any right of traditional fishing. A traditional inhabitant has a right of traditional fishing in the zone if he is not prohibited from fishing under applicable Commonwealth or Queensland law. The Minister has extensive powers of regulation of fishing, including as to species, method or equipment used etc., in areas of Australian jurisdiction (s16). These powers extend to traditional as well as commercial fishing, though s 16(m) enables the Minister to:

prohibit the taking of fish or fish included in a class of fish specified in the notice, otherwise than in the course of community fishing or traditional fishing.

The scope of the protection afforded to community fishing is unclear. Presumably the section applies only to the taking of fish, but not to matters of storage and the use of equipment. [815] The Minister may prohibit the taking of turtle eggs (s16(h)), but it may be possible for an exemption to be made for their taking by traditional people (s16(6)). There is provision for consultation with traditional inhabitants who are members of the Joint Advisory Council established under Art 19, but, apart from s 8 there is no obligation to consuit. [816] Section 8 provides that:

In the administration of this Act, regard shall be had to the rights and obligations conferred on Australia by the Torres Strait Treaty and in particular to the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing.

Section39 provides that the Protected Zone Joint Authority (the body charged in the management of particular fisheries) shall, where it considers appropriate, seek the views of those members of the Joint Advisory Council who are traditional inhabitants and Australian citizens. There is no requirement to consult these members or traditional inhabitants generally, nor is there express provision for direct representation of traditional inhabitants on the Protected Zone Authority or bodies established to advise it.

946. Resulting Priorities.
Although the Torres Strait Fisheries Act 1984 (Cth) seeks to ensure the traditional inhabitants' 'rights in relation to traditional fishing', it is capable, unless carefully administered, of creating a priority for non-traditional over traditional means of fishing, or a priority in favour of 'non-traditional inhabitants' over traditional inhabitants. These problems arise because the Torres Strait Fisheries Act 1984 (Cth) does not apply to 'non-traditional' fishing by traditional inhabitants of the zone, and because it refers 'non-traditional' fishing, and private fishing generally, to Queensland law. In fact the fishing notices issued relating to the taking of mackerel, rock lobsters and dugong pursuant to Torres Strait Fisheries Act 1984 (Cth) s 16 have already placed traditional fishermen at a disadvantage. [817] Only if Queensland law makes the same provision as does Commonwealth law, applicable throughout the zone to private fishing and to 'traditional fishing' by prohibited means, will these problems be avoided. It cannot be anticipated that Queensland will make such provision. Nor is it necessarily appropriate that the Commonwealth be required to legislate on the whole subject of private as well as commercial fishing to cover this particular difficulty. But it is not desirable that traditional fishermen be placed (even unintentionally) at a disadvantage visa vis private fishermen. Indeed, this is contrary to the spirit, if not the letter, of the Torres Strait Treaty itself. Amendments should be made to the Commonwealth Act to provide that a traditional inhabitant shall not be liable for an offence in contravention of a notice under Torres Strait Fisheries Act 1984, s 44 where the act would not have constituted an offence had it been done by a person who was not a traditional inhabitant.

947. Community Fishing Licences.
Section 17 of the Commonwealth Act makes provision for a licence to be taken out for community fishing. Community fishing is defined by s 3(1) as fishing by:

(a) a person who is, or 2 or more persons each of whom is, both a traditional inhabitant and an Australian citizen (not being a person who is, in the course of that fishing, under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of another person who is not both an Australian citizen and a traditional inhabitant); or

(b) a person or persons of the kind referred to in paragraph (a) and another person or other persons employed by -

(ii) the Commonwealth, Queensland, an authority of the Commonwealth or an authority of Queensland,

to provide the first-mentioned person or persons with training or advice in relation to fishing techniques.

The Act provides for regulation of both commercial fishing generally and by traditional inhabitants (i.e. community fishing), but it would be possible to make special provision for the latter independently of the former: indeed the Act expressly envisages this. [818]

948. Fisheries Act 1952 (Cth).
The Fisheries Legislation Amendment Act 1984 (Cth) s 6(c), 10(l)(d) removed the special protection previously afforded to traditional fishing by inhabitants of external territories, in proclaimed waters. [819] This is without prejudice to the protection of traditional fishing by indigenous inhabitants of the 'Protected Zone' under the Torres Strait Treaty, which is subject to the Torres Strait Fisheries Act 1984 (Cth). [820] In proposing the repeal of the earlier provisions of the Fisheries Act 1952, the Minister for Primary Industry commented that:

Traditional fishing as defined in the Fisheries Act relates to fishing by indigenous inhabitants of Australia's external territories, with particular application to Papua New Guinea. With the granting of independence to that country several years ago, that term is no longer necessary for fisheries management under the Act. [821]

The repeal is of little direct relevance for the purposes of this Report since the exemption for traditional fishing only extended to fishing by indigenous inhabitants of an external territory. [822] There has never been any special provision in the Act to cover commercial fishing by Aborigines and Torres Strait Islanders within Australia.

949. Great Barrier Reef Marine Park Act 1975 (Cth).
This Act provides for the control and development of a marine park within the Great Barrier Reef Region (s5). The Governor-General may declare an area of the Great Barrier Reef a Marine Park (s3), and the Great Barrier Reef Marine Park Authority is then required to prepare a zoning plan in respect of that area (s32). To date Marine Parks have been declared in the Far Northern Section, the Cairns and Cormorant Pass, Central, Townsville, Southern, Inshore and Southern Capricornia Sections of the Reel making an area of 384, 700 sqkm. Zoning plans for the Capricornia, Cairns and Cormorant Pass Sections are now in force. The Far Northern Section zoning plans are well advanced. In the preparation of the plan, the Authority, is required to have regard to certain objects (s32(1)), none of which specifically take account of Aboriginal and Islander interests. However the Authority seeks public participation in the preparation of the plans, both before preparation (s32(2)) where the Authority is required to allow not less than one month for public representations, and immediately after preparation and before submission to the Minister (s32(8)(9)) where not less than one month (in practice currently three months) for submissions is allowed. There is no requirement for consultation with traditional inhabitants, over and above the general requirement for public consultation. In preparing the zoning plans the Authority is required to have regard to the interests of conservation, the need to regulate the exploitation of resources of the Great Barrier Reef, public appreciation and enjoyment of the reef, and the needs of scientific research (s32(7)). No reference is made to traditional hunting and fishing interests nor is it suggested that certain areas should be preserved for traditional use, though such a possibility is suggested in relation to scientific needs (s32(7)(e)).

950. Cairns and Cormorant Pass Zoning Plans.
The Cairns and Cormorant Pass Zoning Plans define traditional fishing and hunting in terms of taking otherwise than for the purposes of sale and trade. [823] The zoning plans divide the regions into a series of specific areas in which certain activities may occur. For example, within General Use 'A' and 'B' Zones and except within a Replenishment Area, Reef Appreciation Area or Reef Research area, traditional fishing is not regulated and would be permitted as ordinary fishing (not specifically as traditional fishing); traditional hunting (of dugong) could occur with the permission of the responsible agency. [824]No hunting and fishing of any kind may take place within a preservation zone. In other zones, the permission of the responsible agency is required in certain cases and in granting such permits the agency must have regard to a number of matters relating to the orderly and proper management of the zone, [825] and in particular to'

(c) the numbers to be taken. [826]

A permit will be issued 'only on conditions relating to recording catch and levels of stock of limited species'. Thus where the zoning plans and regulations enable a permit to be granted for traditional fishing, considerable control is left in the hands of the responsible agency. [827] The approach taken is to identify conservation needs in each specific area and to make particular regulations for that area. While this approach best serves the interests of conservation, it could involve invidious distinctions between different Aboriginal and Islander communities: [828]

The current attempts by the Great Barrier Reef Marine Park Authority to limit the traditional harvest of dugongs by the Aborigines of Hope Vale community (near Cooktown) have already been adversely affected by the lack of corresponding controls in other communities. During a two-week stay at Hope Vale in January 1984, one of us was asked repeatedly: 'Why are there restrictions on our hunting but not on hunting by other communities?' [829]

An anomaly has arisen where the need for a permit for traditional fishing has resulted in traditional fishing receiving a lower priority than ordinary fishing in the Marine National Park 'A' Zone. Within the Marine National Park 'A' Zone, and except within a Reef Appreciation Area or a Reef Research Area, traditional fishing and traditional hunting may take place with the permission of the responsible agency. [830] By contrast in Marine National Park 'A' Zone general line fishing, gill netting, bait netting, and spear fishing did not require a permit. In this instance the need for a permit for traditional fishing might be avoided if the activity could be classified as 'ordinary fishing'. The reason for treating traditional fishing more strictly than recreational fishing is unclear. [831]

951. Fisheries Generally.
Section 26(7) of the Fish and Fisheries Act 1979 (NT) creates certain offences, e.g. for exceeding bag limits, the use of fish traps, and selling fish, without a licence. Section 93 states that:

(1) Subject to this section, the provisions of this Act and the regulations regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters do not, unless and to the extent to which they are expressed to do so, operate to limit the right of Aboriginals to enter, and to use the resources of, those waters in accordance with Aboriginal tradition.

(b) interfere with, or remove fish from, a net, trap on the property of another person; or

(c) engage in a commercial activity.

Should the Department of Fisheries wish to prohibit the taking of undersized fish or the taking of endangered species altogether, the regulations must specifically and expressly prohibit Aborigines as well as non-Aborigines from doing so. For example reg 7B expressly so prohibits the use of gill nets in certain estuaries, a prohibition which would apply to any Aboriginal community wishing to take out a Class D Licence.

952. Commercial and Community Fishing Licences.
Section 14 of the Act enables an Aboriginal community, or persons or groups of persons who claim to be traditional Aboriginal communities, living in the vicinity of traditional land to apply for a commercial fishing licence (i.e. a Class A1 license). Though laudable in aim, this procedure has not proved particularly useful in practice. Among other things, the licence fee can be as high as $1000. The Department of Fisheries has consequently proposed a special licence which would enable Aboriginal people to trade within their own community. This licence is intended to enable the distribution of fish through the kinship system or the wider clan or ritual group, as distinct from on the open market. To achieve this aim, reg 7B, gazetted in March 1984, enables fish to be supplied to an Aboriginal community. It may be that this provision is wider than intended, for it would appear to allow fish to be traded, for example, between a remote community and the Aboriginal community in Darwin. Regulation 7B is narrower than s 93, in that it does not allow for gill netting exceeding 200 metres in length, nor the use of gill netting in certain areas. It is not clear why the trading of fish within Aboriginal communities according to customary fishing practices should not fall within s 93 of the Act, which allows for Aboriginal people to 'use the waters in accordance with Aboriginal tradition', thus rendering reg 7B unnecessary in such circumstances. However it may be that for use to be made of s 93, the method of fishing would have to accord with Aboriginal tradition (i.e. traditional fish traps and fishing spears). In another aspect, therefore, reg 7B may be wider that s 93C, in that it is not limited to traditional fishing methods.

953. Closures of the Seas.
The Aboriginal Land Act 1978 (NT) s 12(1) empowers the Administrator to close the seas adjoining and within 2km of Aboriginal land, to others who are not Aborigines entitled by tradition to enter and use the seas in accordance with that tradition. Before doing so he may (and in case of dispute he must) refer a proposed sea closure to the Aboriginal Land Commissioner, to inquire into and report on:

(a) whether, in accordance with Aboriginal tradition, strangers were restricted in their right to enter those seas;

(b) whether the use of those seas by strangers is interfering with or may interfere with the use of those seas in accordance with Aboriginal tradition by the Aboriginals who have traditionally used those seas;

(c) whether the use of those seas by strangers is interfering with or may interfere with the use of the adjoining Aboriginal lands by the traditional Aboriginal owners;

(f) such other matters as the Aboriginal Land Commissioner considers relevant to the closure of those seas. [832]

Once seas are closed it is an offence for a person to enter or remain on these seas without a permit issued by the relevant Land Council (s15) or in certain other circumstances. [833] Holders of commercial fishing licences issued prior to a sea closure notice may enter and fish the areas of the closed seas, provided the relevant Land Council is notified (s 18 (1), (2)). [834] The Milingimbi (Glyde River) Seabed claim has been heard and the seas were closed in July 1983. [835] Other seabed applications are in progress. [836] During the course of the hearings much anthropological evidence is presented on the traditional fishing practices of the local people, both as to the customary practices associated with the catching, distribution and consumption of the fish and to the areas of the seabed in which different clans may fish. [837] The Northern Territory Act is so far the only legislative provision for closure of the seas in Australia. [838]

954. Fisheries Generally.
Under the Fisheries Act 1971 (SA), Aboriginal people are subject to the same restrictions as to the numbers of fish caught, the size of fish caught and the methods of catching fish as are all other citizens. Aboriginal people require a permit to catch fish for sale. The Aboriginal Legal Services have received few if any complaints relating to prosecutions under the Act. Discussions have taken place between the South Australian Government and the Point Pearce Aboriginal Community over requests to close the stretch of water between Point Pearce and Wardang Island to trawlers engaged in net fishing, and to exempt Aboriginal people from commercial licence fees.

955. Fisheries Generally.
In 1979 s 56 of the Fisheries Act 1905 (WA) was repealed and a new section substituted which, subject to certain restrictions, allows 'a person of Aboriginal descent' to take 'in any waters and by any means sufficient fish for food for himself and his family, but not for sale'. The Governor may however suspend or restrict this right if he is satisfied that:

(b) the population of any species of fish which is being taken under the power to take fish conferred by ... of this section is becoming or is likely to become excessively depleted... [839]

Under s 56(1) traditional fishing is subject to s 9, 10, 23, 23A, 24 and 26 of the Act. These sections enable the Minister to gazette special regulations prohibiting the taking of particular species of fish, outlawing the use of illegal devices, and restricting the taking of rock lobsters. While there is in principle a recognition of the right of Aboriginal people to fish for food, this recognition may be restricted by regulations under the Act. For example, suggestions have been made that Aboriginal people in the Broome area have had considerable difficulty in getting rock lobsters for their own consumption under the regulations controlling the taking of lobsters. It has also been suggested that the Act presents difficulties for some Aborigines in Broome who wish to obtain a commercial fishing licence under s 17. To receive a licence it is necessary to obtain a coxswains licence which entails passing a test of the rules of the sea. Aboriginal people claim to have had difficulties with these tests. The Pearling Act 1912 (WA) has also been subject to some criticism. This Act regulates pearling operations, and requires licences for most of the different operations involved (pearl dealers' licences, divers' licences, divers' tenders' licences, pearl cleaners' licences, shell buyers' licences, ship licences and beach combers' licences). Apparently difficulties have arisen with Aboriginal people collecting the shell for their use from the seashore. The Pearling Act 1912 (WA) s 109 forbids the removal of pearl shell from the seashore (including any reef or island uncovered at low tide) north of the Tropic of Capricorn. Commercial resource harvesting by traditional inhabitants occurs north of Derby where the Fisheries Department have issued the Bardi Aborigines Association with a professional fishing licence to enable trochus shell to be taken for the purposes of sale. As the Department points out, such taking cannot be said to be traditional. [840]

956. Closures of the Seas.
The Western Australian Aboriginal Land Inquiry, in examining ways in which Aboriginal interests in the sea adjacent to Aboriginal land could be protected, recommended that the Tribunal be able to make recommendations for excemptions from fishing or other maritime laws to allow Aboriginal claimants to benefit from land rights and associated fishing interests. [841] The Report recommended that:

waters should only be protected for Aboriginal people for uses which are still part of traditional life. Traditional use should be defined to include access to and traditional activities connected with significant areas in or associated with the sea, or customary modes of foraging or fishing in or near the sea. An activity should not be treated as outside tradition merely because it is pursued with the latest technology. [842]

However claims for the vesting of sea-bed or seashore in Aboriginal applicants were rejected. [843] Instead the Minister and the Tribunal should have power to:

grant protection of waters upon the application of the traditional interests provided that the applicants show that the use by others of the waters interferes or may interfere with their traditional use ... It is not appropriate to use the term 'sea closure' because the Tribunal should create no more exclusivity than is necessary to protect the particular traditional interests. For example a seasonal fishery need not be closed twelve months in the year. Sailing might be compatible with some traditional interests and not with others. [844]

The Report also recommended that river beds and banks adjacent to Aboriginal land should be able to be protected for use of Aboriginal people. Public access along a water course would be restricted where land on both sides of the river was granted as Aboriginal land. [845] Had the Aboriginal Land Bill 1985 (WA) been enacted it would have enabled Aboriginal organisations or land corporations acting on behalf of Aborigines with entitlements in accordance with local Aboriginal tradition to an area of the seas contiguous to Aboriginal land, to apply for access and activities in that area of the sea to be regulated. In determining the application the Tribunal would have had to be satisfied that the Aboriginal claimant had entitlements according to local Aboriginal tradition, that their use of the seas was being interfered with, that no one would suffer undue detriment and in particular that commercial and recreational interests would not be unreasonably interfered with (cl 92). The regulations were not to regulate access and conduct to a greater extent than necessary to enable the area to be used in accordance with local tradition (cl 83(3)(a)). Bona fide transit vessels, and interests or rights which a person has in the area, would have been protected (cl 83 3(b)(c)). The Bill would have made it an offence to obstruct or hinder an Aborigine traditionally using the seas, or to enter and remain in the protected area without being entitled to do so (cl 93). [846]

957. Fisheries Generally.
Section 5 of the Fisheries 1976 Act (Qld) provides that the Act does not apply to:

the taking, otherwise than by the use of any noxious substance or explosive, of fish or marine products in Queensland waters for private purposes by any Aboriginal or Torres Strait Islander who at the material time is resident on a reserve...

There is now also the exemption from fisheries legislation for reserve residents, contained in the two Community Services Acts of 1984. [847] This is expressed to apply 'notwithstanding any other Act...' (s77(1)). It would appear that the terms of this legislation would enable reserve residents to take fish, for example, with the use of any noxious substance or explosive. The Fisheries Act 1976 (Qld) is to be gradually phased out with the introduction of the Fishing Industry Organisation and Marketing Act 1982 (Qld). The latter Act deals with the taking of fish for commercial purposes. It makes arrangements for the marketing of fish and provides that a person may not take fish for commercial purposes unless he is the holder of a licence (s36). Section 31 provides that a 'community' fisherman's licence may be granted. A 'community' is defined as 'the inhabitants of a reserve for the benefit of Aboriginals and Torres Strait Islanders'. The purpose of s 31 is to allow for community licences to a fluctuating group of Aboriginal people rather than a licence being taken out by a corporation or by individual persons. [848] A feature of both the Fishing Industry Organisation and Marketing Act 1982 (Qld) and the Fisheries Act 1976 (Qld) is that Aborigines who are not 'inhabitants of a reserve', [849] or who are not 'at the material time a resident of a reserve' [850] are subject to all the provisions of the fisheries legislation, and are not able to take out a community licence under the Fishing Industry Organisation and Marketing Act 1982 (Qld). There is no indication that the Acts will be extended to apply to Aborigines not living on reserves. The Fisheries Act 1976 (Qld) and the Fishing Industry Organisation and Marketing Act 1982 (Qld) do not apply to the taking of fish for the purposes of a fishery within the Torres Strait area as provided by the Torres Strait Fisheries Act 1984 (Qld) s 5(2). The Torres Strait Fisheries Act 1984 (Qld) provides for the implementation of the Torres Strait Treaty, and for the conservation and management of Queensland's fisheries. The State Minister is empowered to exercise any of the powers and to perform any of the functions conferred on the Commonwealth Minister under Part V of the Torres Strait Treaty (sl 1(2)). However regard is to be had to the traditional ways of life of the traditional inhabitants including their rights in relation to traditional fishing (s7). [851]

958. The Problem of Dugong.
The issue of dugong hunting in Commonwealth waters off the Queensland coast, together with the operation of the Great Barrier Marine Park Act 1975 (Cth) and the Torres Strait Fisheries Act 1984 (Cth) (and related Acts) have already been discussed. [852] The interrelation of these Acts is complicated. Under Queensland law, the Fisheries Act 1976 (Qld) provides that only reserve residents are permitted to hunt dugong, while Commonwealth law does not prohibit the taking of dugong. In certain areas under the zoning plans, no hunting and fishing of any kind (including the taking of dugong) is permitted. In other areas traditional hunting of dugong may be allowed subject to a permit being granted. Nothing in the Zoning Plan is to be construed as permitting the taking of any plant or animal protected under Commonwealth or Queensland law, nor as permitting any activity prohibited under Commonwealth law (c114, 15). Thus, if permission is given by the responsible authority for the taking of dugong in a particular zone, this would only permit the taking of dugong by residents of a trust area. (former reserves) in Queensland waters. An Aborigine living off a trust area who is prohibited from taking dugong would still be precluded from taking dugong, in Queensland waters, even if he had a permit to do so. In Queensland, particular problems have been raised about the taking of dugong by Aborigines not resident on a reserve. [853] The Commission has been advised that since 1972 six Aborigines and Islanders not residents of the reserve have been convicted of taking dugong. [854] The position in relation to dugong is particularly sensitive given their scarcity and their extremely low reproductive rate. [855] The Queensland Fish Management Authority advises that an Interdepartmental Committee has been established to study the taking of dugong and turtles by Aborigines and Islanders. At the federal level research is also being conducted under the auspices of the CSIRO, the Great Barrier Reef Marine Park Authority, the Department of Primary Industry, the Australian National Parks and Wildlife Service, and the Department of Science and Technology's Marine Science and Technology Grant Scheme.

959. Marine Parks.
The Marine Parks Act 1982 (Qld) provides for the setting apart of tidal lands and tidal waters as marine parks. It applies, for example, to the inter-tidal zones between a cay (to which the Queensland national parks legislation would apply) and the surrounding reef (which would be likely to fall within the Great Barrier Reef Marine Park Act). Given the narrow geographical line between areas subject to the operation of these different Acts, questions of administration are minimised by the fact that the management of all three areas is undertaken by the Queensland National Parks Authority. No special provision is made for Aborigines and Torres Strait Islanders, either under the Marine Parks Act 1982 (Qld) itself nor under the regulations made under it. Draft Zoning plans prepared for the Capricornia section similarly make no provision for Aboriginal or Torres Strait Islanders and traditional fishing. [856]

960. Fisheries Generally.
Under the Fisheries and Oyster Farms Act 1935 (NSW) as amended, the only special recognition of traditional fishing rights is an exemption for Aborigines (as defined under the Aborigines Act 1969 (NSW)) from the requirement of an inland angling licence to fish in inland waters (s25(a)). Thus neither Aborigines nor non-Aborigines are permitted, for example, to take fish for sale without a licence, catch undersized fish, use a net in certain areas, use dynamite, or take restricted species of fish. [857] Similarly, the taking of oysters from certain Crown land and from public oyster reserves is prohibited unless taken for personal consumption in the immediate vicinity from which they are taken (s83, 85). Specific problems are created in New South Wales because of the shortage of abalone, their commercial popularity, and pressures from commercial fishing interests. In 1980 when the Fisheries Department introduced abalone licences a licence was granted to the only two Aborigines who were applicants. Current policy is to renew existing licenses and not to create additional new licenses. Regulation 181 allows the taking of 5 crayfish or 15 abalone a day by an unlicenced person. [858] Publicity was given to charges laid against Aborigines for alleged breach of this Regulation in several instances, [859] and calls have been for the amendment of the Fisheries and Oyster Farms Act 1935 (NSW). [860] It is interesting to compare the provisions of the New South Wales Act with the relevant Western Australian provisions. While Western Australia has a specific exemption for Aboriginal people, that exemption is subject to other provisions of the Act such those relating to size, netting, lobster fishing, the devices that may be used in catching fish, prohibitions on dynamite. In the result there may be little practical difference in the operation of the two Acts,

961. Fisheries Generally.
There are no special provisions for Aboriginal fishing under the Fisheries Act 1968 (Vic), nor under the Fisheries Act 1959 (Tas).

962. Some Examples.
It is not intended to analyse the many other Acts which may restrict traditional hunting and fishing activities, but a few examples will indicate the nature of the provisions involved. For example:

963. Summary.
Before turning to questions of principle relating to Aboriginal hunting, fishing and gathering rights and their possible recognition, it is helpful to summarise the approaches taken in the Australian legislation and administrative practices described in this Chapter. Several situations need to be distinguished:

965. Aboriginal Land.
The grant of Aboriginal land and the hearing of land claims in the Northern Territory has been a catalyst for much anthropological research on traditional hunting and fishing, and has highlighted the importance of management of resources on Aboriginal land. It has demonstrated that there are various ways in which effective collaboration between the authorities and local Aborigines can be achieved. In the process a new balancing of interests has developed and continues to be refined. For example:

966. Access to Land.
In Queensland, Victoria, or Tasmania there are no access provisions enabling Aboriginal people to hunt on land belonging to another. [871]

968. Sea Closures.
There are further provisions to protect Aboriginal traditional fishing by way of sea closures in the Northern Territory; somewhat similar measures have been proposed for Western Australia.

969. Conclusion.
The review of legislation and administrative practice in this chapter reveals that:

970. Articulating Basic Principles.
As will be apparent from the review of Australian law and practice in Chapter 35, the Commonwealth and some States have demonstrated considerable willingness to recognise Aboriginal traditional hunting, fishing and gathering rights. However legislation in many of the States contains distinctions and omissions which are difficult to justify. Provisions protecting Aboriginal hunting and fishing rights in earlier legislation were omitted from later Acts, without apparent reason. Very often there is a considerable gap between legislative provisions and what appears to be Departmental policy. Departmental policy may be to refrain from prosecuting non-commercial breaches of wildlife and fisheries legislation by Aboriginal people, but the need for such a policy indicates that the legislation itself does not give due recognition to Aboriginal hunting, fishing or foraging rights. Moreover a general policy of non-prosecution may be unlawful, and it may well be applied erratically or inconsistently. The inconsistencies found in the legislative provisions of most States can be ascribed in part to the fact that there is no articulated, publicly available set of principles to guide legislators in the protection of legitimate Aboriginal interests. Before legislation can be amended to remove unjustified limitations on Aboriginal traditional hunting, fishing and gathering rights, the principles on which the recognition of these rights should be based must be established. This Chapter articulates these principles.

971. The Need for Recognition.
The recognition of customary hunting, fishing and gathering rights accords with - indeed, may be thought to be required by - the principle that Aboriginal people should have the right to retain and develop their traditional lifestyle and identity. [877] In addition Article 1(2) of the International Covenant on Civil and Political rights states that: 'In no case may a people be deprived of its own means of subsistence'. Recognition also accords with the reality that food obtained by subsistence often forms an important part of the diet of many Aborigines in remote areas. [878] Much present State legislation, if strictly enforced, would deny many Aborigines reasonable access to natural resources which are still important to their way of life. The practices of many State authorities in not prosecuting Aborigines for breaches of wildlife conservation and fishing provisions may be attributed both to the difficulties of policing large areas of inaccessible country, and to a realisation of the irrelevance and inappropriateness of these laws for Aboriginal people in such cases. That few Aborigines are charged and convicted for breaches of State wildlife and fishing laws was reflected in the fact that the Commission received few written submissions specifically calling for the recognition of hunting and fishing rights. However, during the Commission's Public Hearings the matter was raised on a number of occasions. [879] However, the fact that administrative practice does not accord with legislative provisions is not an argument against reform. If anything, it strengthens the case for reform. The Canadian practice of issuing Ministerial directives to departmental officers that they not charge Indians with offences under the Migratory Birds Convention Act was strongly criticised by the Manitoba Court of Appeal, [880] and guidelines providing for exemption from prosecution may be unlawful in Australia. [881] While, as the review in Chapter 35 has shown, some Commonwealth, State and Territory laws do take account of legitimate Aboriginal needs, other legislation is in many cases demonstrably inadequate. If so, there is good reason for bringing legislation into line with existing practice and policy.

972. Setting Out a Concerted Approach.
Attempts to argue for a common law right to hunt and fish in Australia are not likely to assist most of those Aboriginal people for whom traditional hunting and fishing for food remains a reality. [882] Similarly, any attempt to limit customary hunting and fishing rights of Aboriginal people to Aboriginal land would benefit some Aborigines while leaving many others without protection. On the other hand proposals for an overriding or categorical form of recognition have rarely been made, and even more rarely adopted. In 1969, a Bill introduced into the House of Commons of Canada [883] described the right of Canadian Indians to hunt and fish for food as 'a hereditary and inalienable perogative' (cl 1), and provided that these rights were not to be diminished or in any way derogated from by any law of Canada (cl 2). The Bill would have bound the Crown in the right of Canada and in the right of a Province (cl 3). The Bill failed to reach the second reading stage, and there have been no subsequent attempts to reintroduce it or similar broadly based legislation. [884] It is suggested that Aboriginal hunting fishing and gathering rights may more effectively be secured by a proper appraisal of Aboriginal needs and interests, in the context of the overall regime for management of the resource in question. The problem is that, in the area of resource management, some form of unitary, or at least co-operative, regime is necessary in any case where resources are scarce and demand threatens supply. In such cases it is necessary to consider a variety of factors, and Aboriginal interests, however important, are only one amongst these. Other factors include the need to take account of legitimate conservation interests, for example the need to protect, absolutely or regionally, endangered species, the need for effective management of natural resources, established pastoral or other residential interests, and commercial interests such as fisheries and tourism. The relative importance and nature of these needs and demands will vary in each situation. For example, commercial interests may have to be taken into account in consideration of traditional fishing; on the other hand commercial harvesting of Australian fauna is minimal and is not a significant factor. [885] But in every case there is a need to recognise as a matter of principle the relations of Aboriginal people to the land and to their customary laws, and to take account of the fact that, although hunting, fishing and gathering practices have changed and adapted to new conditions, these traditions remain important, in many areas, both in their own fight and in terms of sustenance. The multitude of interests to be considered militates against an entrenched overriding recognition of hunting and fishing rights of a general character. But it is possible to articulate general principles which take due account of Aboriginal needs and interests and of other relevant interests. In developing these principles, the Commission has drawn on relevant Australian experience as set out in Chapter 35. In a number of cases the relevant authorities have developed working models which go to considerable lengths to respond to Aboriginal needs, and to balance conflicting interests with the underlying need for conservation of the resource in question. Special attention has also been given to the Canadian experience, for example, as represented by the James Bay and Northern Quebec Agreement. [886]

973. A Legislative Response?
Several submissions to the Commission called for specific legislation to protect traditional hunting and fishing interests or for some form of constitutional protection of these interests:

It is evident from the discussion of the variety of Commonwealth and State or Territory legislation that applies to Aboriginal traditional hunting fishing and gathering rights, that it is time to consider specific and uniform legislation to protect these rights. [887]

I completely agree with the need for and propriety of legislative recognition of Aboriginal hunting and fishing rights. Personally, I would prefer a more durable approach than mere legislation, which can easily be changed, in favour of constitutional entrenchment or a 'manner and form' mechanism of entrenchment (eg, amendment or repeal only by a 75% vote in the House and Senate), or enabling legislation which implements a negotiated agreement or treaty. [888]

It is all very well, for example to entrench rights in a constitution but the precise manner in which that is done is very important. Do you adopt a s 35 approach or something a little more specific (such as Art 12 of the Natural Resources Transfer Agreement) or do you develop a detailed set of principles and rights which will then be used as the basis for further negotiations on resource management and harvesting between Aboriginal people and state and commonwealth governments? [889]

However several submissions warned of the dangers of excessive legislative intrusion:

The principle of co-operation and consultation between Aboriginal interests and those who administer wildlife legislation would be better served by a generous measure of goodwill than the subscription to a series of restrictive guidelines to such consultation no matter how carefully worded. [890]

These submissions raise several questions.

The principles set out below are stated at this stage without specific regard to these questions of implementation, which can only be discussed after basic principles are established. It is proposed to clarify some questions of definition before developing a statement of principles.

974. Questions of Definition.
Any principle of preference for traditional users, in respect of species or resources available for exploitation, leaves open a number of questions, in particular:

∗ whether the activities encompassed by the term 'traditional hunting and fishing' should be restricted to those conducted for the purpose of sustenance;

∗ which changes in the technology of hunting or fishing should be regarded as consistent with traditional usage; and

975. The Purposes of 'Traditional Hunting and Fishing'.
Legislation based on notions of traditional hunting, fishing or foraging rights raises questions of definition and application. It has been said that the lack of a precise definition of traditional fishing 'presents difficulties for those working in the management and enforcement of wildlife provisions'. [894] The emphasis on the purposes encompassed in the notion of traditional hunting and fishing has tended to be on 'domestic purposes', 'subsistence', 'consumption', or quite simply 'food' or 'sustenance'. It is suggested that the broader notion of 'subsistence' is to be preferred. Aborigines were sustained by the land not merely in the nutritional sense; its products were used, for example, in ceremony, exchange and in satisfying obligations to kin and family. While commercial harvesting enterprises involving large-scale accumulation of capital and labour should be excluded, it is not necessary to restrict activities to those carried on purely for the provision of food. Rights of access to resources or land should not therefore be unduly restricted to hunting for food, but should include the use of the resource for ceremonial or religious purposes. In practice it appears that a wide interpretation is placed upon the right to enter the land for 'sustenance' [895] or to enter the land 'to make and erect wurlies and to take and use for food, birds and animals ferae naturae'. [896] It remains to be seen whether a broad interpretation is placed on the word 'consumption' in the Community Services (Aborigines) Act 1984 (Qld) s 77 and its Torres Strait equivalent. [897] Traditional hunting and fishing should also include the taking of introduced feral species and should not preclude shifting dietary patterns. [898]

976. Barter and Trade.
It is a more difficult question whether traditional hunting and fishing should also include hunting and fishing for barter and trade. RL Barsh argues that the:

broader notion of subsistence [should include] pay back, gift giving, barter (especially between single women and men re their different catches), inter-community trade, and as sustenance for those unable to obtain their own (eg, the elderly). In other words, all activity short of sale to non-Aboriginal consumers or distributors. [899]

But if such a broad approach is adopted there is a danger that exemptions for traditional hunting and fishing could be used to legitimise what are essentially unlicensed commercial activities. The Western Australian Director of Fisheries and Wildlife commented that:

The care that has been taken in Western Australia in consideration of Aboriginal hunting rights stems from the dual need to recognise traditional and customary practices and at the same time to ensure that people of Aboriginal descent who have adopted European values do not abuse their privileges to the detriment of the overriding interests of conservation. There are cases on record of Aboriginal people involved in extensive parrot nest-robbing, of being exploited by aviculturalists to catch birds on the aviculturalist's behalf and of claiming exclusive rights to take flora, clearly for commercial purposes. The realities of the situation are that tribal and semi-tribal Aboriginal people have nearly total freedom to take wildlife for traditional purposes in this State... The basic problems concern neither philosophy nor the wording of legislation. They centre on the problem of distinguishing between Aboriginals acting from traditional motives and those who use Section 23 to 'legitimise' clearly illegal activities. [900]

In the Commission's view a distinction has to be drawn between hunting and fishing for local consumption, that is, for consumption within local family or clan groups (which should be regarded as traditional even though elements of barter or exchange are present), and trade, exchange or sale outside the local community, which should be treated in the same way as other commercial dealings with the species in question. [901] If necessary the relevant legislation or regulations should state this distinction expressly, to avoid misunderstandings or arguments.

977. Traditional Hunting and Fishing Methods.
In principle, in determining whether an activity is 'traditional', attention should focus on the purpose of the activity rather than the method. Thus the question which methods or technologies are to be regarded as 'traditional' is, for most purposes, a subordinate one. In normal circumstances it is inappropriate to insist on dugouts, fishing spears and harpoons (though many Aborigines in remote communities continue to use these hunting methods). In the Northern Territory the use of firearms has been held to be consistent with traditional hunting. [902] Chief Justice Forster held that the 'right to take or kill for food for ceremonial purposes', conferred by the Crown Lands Act 1931 (NT) s 24(2), includes the right to kill by shooting. In the Chief Justice's words:

It has been common knowledge for many years that in the process of adaptation of old Aboriginal ways many Aboriginal people have adopted firearms as a method of killing, being more efficient for many purposes than spears or boomerangs or other traditional weapons. [903]

Similarly in discussing the right of access for purposes of traditional hunting and fishing, the Western Australian Aboriginal Land Commissioner stated:

If the right were confined narrowly by reference to traditional methods of hunting, fishing and foraging it would be meaningless to almost every Aboriginal person in Western Australia. The argument says that Aboriginal people should only enjoy such a right if they confine themselves to pre-settlement methods of hunting, fishing and foraging. In my view it is really an argument that they should not have rights of access for these purposes at all. I recommend that they should have those rights in certain circumstances, and that they should not be denied the use of modern technology such as vehicles, nylon lines, steel fish hooks, or rifles. [904]

In direct contrast is the recommendation of the Arid Lands Review Committee (SA) to limit access to Aboriginals 'in bona fide pursuit of their traditional game, utilising traditional weapons and artifacts'. [905] Such a recommendation is anachronistic and amounts to an argument against any access for the purposes of hunting and fishing. It has been rejected by the South Australian Department of Lands. [906] It is Departmental policy in most States [907] to treat the use of firearms as constituting traditional hunting and fishing. This is despite the fact that, for example, the National Parks and Wildlife Act 1972 (SA) reg14 refers to hunting with traditional weapons. [908] In all but special cases it is suggested that the purpose and underlying method rather than the technology used should be the decisive criterion. This may exclude particularly destructive technologies completely: Aborigines did not, for example, kill more than was needed for food at a particular time, so that the machine-gunning of herds of kangaroos (to take an extreme example) would ipso facto not be traditional. Other factors, such as whether the person was under his customary laws entitled (or disentitled) to kill the animal in question at the time, would also be relevant.

978. An Ordering of Priorities.
An equitable resolution of legitimate claims to natural resources requires that there be a carefully articulated ordering of priorities. Where resources are not abundant, competition can become intense, and increasingly so as the number of competing user groups increases:

The largest single factor in this shrinkage of wildlife resources, moreover is industry: habitat degradation through population, physical obstruction, reduction of forage, etc. What is the priority between conservation and industry? Unless industrial development is included in the equation, a priority favouring Aboriginal rights will fail. [909]

In terms of the determination of priorities off Aboriginal land, the question becomes one of Aboriginal involvement in seeking appropriate exemptions from the operation of conservation laws, and in determining the relative importance of traditional hunting and fishing, and commercial, recreational and other interests. On Aboriginal land, Aboriginal Councils should be able to regulate the use of their land under their by-law making powers. This matter is returned to para 999. The Council's power to manage their land should however be subject to the overriding principle of conservation. The importance and relevance of the principle of conservation as a restriction on traditional hunting and fishing, whether such activities take place on Aboriginal !and or off Aboriginal land, requires further elaboration.

979. Conservation - A Primary Concern.
That necessary conservation measures should restrict traditional hunting and fishing activities is recognised at the international level. [910] The James Bay and Northern Quebec Agreement provides that the right to hunt, fish and trap any species of wild fauna shall be subject to the principle of conservation. [911] In Victoria, the Aboriginal Land Claims Bill 1983 (Vic) (cl 13.4(b)) provides that Aborigines shall have full care and control of the flora and fauna on Aboriginal land other than notable and endangered wildlife and protected flowers and plants. [912] The Supreme Court of Canada in Jack v R [913] held that even if the fishing rights claimed were established, they would have been properly subordinated to the conservation of fish. Thus Justice Dickson found that Art 13 of the Terms of Union with British Columbia provided that Indian fishing rights for food, and to a limited extent for commercial purposes, should take priority over commercial or sport fishery. Nevertheless he considered that:

Conservation is a valid legislative concern. The appellants concede as much. Their concern is in the allocation of the resource after reasonable and necessary conservation measures have been recognised and given effect to. They do not claim the right to pursue the last living salmon until it is caught. Their position, as I understand it, is one which would give effect to an order of priorities of this nature: (i) conservation; (ii) Indian fishing; (iii) non-Indian commercial fishing, or (iv) non-Indian sports fishing; the burden of conservation measures should not fall primarily upon the Indian fishery. I agree with the general tenor of this argument... If there are to be limitations upon the taking of salmon here, then those limitations must not bear more heavily upon the Indian fishery than the other forms of the fishery. With respect to whatever salmon are to be caught, then priority ought to be given to the Indian fishermen, subject to the practical difficulties occasioned by international waters and the movement of the fish themselves. But any limitation upon Indian fishing that it is established is for a valid conservation purpose overrides the protection afforded the Indian fishery by art 13, just as such conservation measures override other taking of fish ... Considerable latitude should be given to the judgment of the fisheries officials in deciding the questions of when closure is required for conservation purposes and how that closure is to be effected. That does not, however, completely shield those measures from judicial review for constitutional competence. [914]

Accordingly, in certain circumstances conservation measures must override traditional hunting and fishing interests. The following priorities appear to be justified:

(c) commercial and recreational hunting and fishing. [916]

Such a scheme of priority is acknowledged in the management plan of the Kakadu National Park, where, subject to certain conservation restrictions, traditional hunting is permitted. At the same time recreational fishing is allowed, provided a fishing permit is held and that the taking of fish does not result in damage to the Park or interfere with the management of wildlife. Finally commercial fishing is not permitted except with the consent of the Director and subject to a permit. [917] A scheme of priorities is adopted in the Torres Strait Treaty, where conservation and traditional fishing (as defined) are clearly and explicitly ranked above commercial fishing (in that where there is a conflict, conservation and traditional fishing interests will take precedence over commercial fishing) and there is an equally clear (though implicit) assumption that recreational fishing (ie fishing other than traditional fishing) will be, if not subordinated to, at least not given any preference over, traditional fishing. [918] But, as has been seen, [919] traditional fishing interests have in fact been subordinated to private fishing. The Commission proposes amendments to the Torres Strait Fisheries Act 1984 (Cth) [920] to rectify the order of priorities. This problem also arose in the provisions relating to the management of the Great Barrier Reef Marine Park where, under the Marine National Park 'A' Zone for the Cairns and Cormorant Pass Zoning Plans, recreational fishing appears to have been accorded priority over traditional fishing. [921] In view of the difficulties of implementation that can occur, it is desirable to say more about each of the interests represented in the ordering of priorities, and of their relative weight.

980. Conservation versus Traditional Hunting and Fishing Interests.
It has been concluded that in certain circumstances conservation measures may override traditional hunting and fishing interests. It may be necessary to prohibit the taking, including the taking by Aborigines for food, of certain endangered species, in particular those threatened with extinction. [922] In this instance it is necessary to determine both the status of the species concerned, and the threat to the species posed by traditional hunting and fishing, before any decisions can be made to restrict traditional hunting and fishing. [923] This requires not only an accurate assessment of Aboriginal hunting and fishing practices but also an accurate assessment of other threats to the species, for example the taking by commercial or recreational fishermen, accidental trapping of dugong in shark nets, the destruction of feeding grounds, tourism and industrial development : [924]

Controls on the indigenous harvest of dugongs are unlikely to be effective unless corresponding efforts are made to reduce the incidental take and to eliminate illegal killing by white Australians. It is unrealistic to expect Aborigines and Islanders to restrict their traditional take unless white Australians and indigenous commercial fisherman are also seen to reduce the number of dugongs they kill. Conversely, professional fishermen are unlikely to take a responsible attitude while they consider that traditional fishermen can do whatever they like. [925]

In this context, the Kakadu Plan of Management para 34.2.4 is of interest. It provides that:

The traditional use by Aboriginals of areas within the Park for hunting or food gathering will be permitted. After investigation and research and after consultation with a representative of the Northern Land Council representing the traditional Aboriginal owners, periods during which and/or areas in which hunting and gathering of particular species will not be permitted may be prescribed if for instance the species:

is officially designated as endangered, nationally rare, threatened or locally of rare or of unusual occurrence in the Park; and

occurs in numbers significantly below the natural capacity of its range.

If restrictions have to be placed on traditional hunting and fishing practices, there should be regular monitoring and reassessment of the situation in consultation with those affected. [926]

981. Local or Partial Restrictions in the Interests of Conservation.
It may also be appropriate to restrict the taking of a certain locally or regionally endangered species to a certain defined area. For example, traditional fishing and traditional hunting are allowed in most areas and permitted (subject to permit) in all but preservation zones under the zoning plans for the Cairns and Cormorant Parks section of the Great Barrier Reef Marine Park. [927] The Wildlife Conservation Act 1950 (WA) s 23 exempts traditional hunting and fishing in certain circumstances but prohibits the taking of any species in nature reserves and wildlife sanctuaries. Similarly the James Bay and Northern Quebec Agreement provides that native people shall continue to have the fight to hunt in parks, reserves, wilderness areas and ecological reserves, but that:

The creation or existence of wildlife sanctuaries shall operate to exclude all or part of such sanctuaries from the right to harvest but only with respect to those species for whose protection such sanctuaries are created and for such periods of time and/or season when such protection is required. [928]

Restrictions may also take the form of limiting the purposes for which plants and animals may be taken or the equipment used. [929] A permit system may be necessary. [930] It may be appropriate to limit the numbers taken, or to create open and closed seasons in some circumstances. And it may be necessary to restrict hunting and fishing to relatively or even strictly traditional methods or technologies in certain circumstances. [931] The Conservation Commission of the Northern Territory stated that:

Unless particular circumstances require it, the Conservation Commission would discourage any move toward defining hunting in terms of methods/technology of hunting until, at least, there is firm evidence that new technologies have resulted in a serious depletion of animal or plant stocks. [932]

Such a restriction may ultimately be considered necessary for the preservation of the plains turkey in the Tanami Desert, or the dugong in waters controlled by the Great Barrier Reef Marine Park Authority. It has been argued that:

The use of firearms to kill dugongs by Aborigines and Torres Strait Islanders living on reserves should be explicitly banned by law as the use of firearms substantially increases the rate at which dugongs can be caught by a hunting team and encourages sport-shooting. [933]

The Torres Strait Fisheries Act 1984 (Cth) enables the use of specific equipment and fishing methods to be declared not to constitute traditional fishing (s3(2)), [934] but the Act fails to provide for any power to prohibit 'non-traditional' recreational hunting and fishing. [935] It would be possible, for example, to allow the taking for use in traditional ceremonies and celebrations and to prohibit the harvesting of dugong for every day consumption. [936]

982. Consistency of Conservation and Traditional Subsistence Activities in some Cases.
While the conservation of species is a first priority, in most cases its implementation need not exclude altogether traditional and long established subsistence activities. The balance struck by Art 20 of the Torres Strait Treaty [937] is illustrative: it provides that the Governments concerned may adopt conservation measures provided that best endeavours are used to minimise any negative effects on traditional hunting and fishing. [938] The distinction made in Queensland between on and off-reserve Aborigines for the purposes of exemptions from Queensland wildlife legislation appears to have little to do with conservation. Dissatisfaction with this distinction is well known: [939]

Consideration should also be given to amending the present Act ... For example, only some parts of Thursday Island and Abednego are classified as reserve. This means that although many Islanders resident on Thursday Island are legally allowed to hunt dugong others by dint of their residential address are not... [M]easures dealing with only one component of the dugong problem are likely to be counterproductive as they will simply polarise the various protagonists in this complex and politically-sensitive issue.

For example, we believe that the present absolute dichotomy between the hunting rights of indigenous people living on and off reserves in Queensland actually promotes illegal killing to supply dugong meat to urban Aborigines and Islanders. [940]

The 'reserve resident' distinction as it applies in Queensland is an arbitrary one. It is also a distraction from the real issues: the status of each species, the restrictions needed to manage the species, and the need to identify the different interests affecting the species and to legislate accordingly. In this process it is hard to see how the 'reserve resident' distinction can be relevant.

983. Other Overriding Interests.
The regulation of Aboriginal hunting and fishing practices should take certain other overriding interests, for example, those of personal safety, into account. [941] Under the James Bay and Northern Quebec Agreement the right of native people to harvest is subject to provisions relating to public safety in regard to the discharge of firearms, the setting of large traps or nets and to other dangerous activities having due regard for others lawfully in the vicinity (s 24.3.9). The right to possess poisons, firearms, automatic weapons, tracer bullets, non expanding ball ammunition, air guns and other similar equipment may also be regulated provided the regulation is directed to public security and not to harvesting activity (s 24.3.12). The Agreement also specifically provides that 'the right to harvest shall include the use of present and traditional methods of harvesting except where such methods affect public safety' (s 24.3.14). [942] Similarly questions of innocent passage, shelter and safety at sea should also take priority, as the Western Australian Aboriginal Land Commission pointed out in the context of sea closures. [943]

984. Traditional Hunting and Fishing versus other Interests.
Obviously allocation of resources can be a complex matter. However, as a general principle Aboriginal traditional hunting and fishing should take priority over non-traditional activities, including commercial and recreational activities, at least where the traditional activity is carried on for subsistence purposes. Once this principle is established the precise allocation is a matter for the appropriate authority acting in consultation with Aboriginal and other user groups. Such a priority has, in one form or another, achieved a considerable degree of recognition in Australia and elsewhere. In Alaska under State legislation priority is given to 'subsistence' users, defined in broad terms as customary or traditional users for food, trade or barter in the making of handicrafts. [944] Under Federal law in operation in Alaska, subsistence use is limited to consumption by rural Alaskans. [945] The definition of 'conservation' under the James Bay Agreement accords the same priority to native hunting, fishing and trapping:

'Conservation' means the pursuit of the optimum natural productivity of all living resources and the protection of the ecological systems of the Territory so as to protect endangered species and to ensure primarily the continuance of the traditional pursuits of the Native people, and secondarily the satisfaction of the needs of non-Native people for sport hunting and fishing (s24.1.5).

Section 24.3.30(c) provides that harvesting controls required by governments or the Coordinating Committee shall be 'less restrictive for Native peoples than for non-Natives'. The Agreement also provides that certain species of mammals, fish and birds shall be reserved for the exclusive use of native people.

Animals that may be so reserved include beavers, foxes, polar bears, muskrats, porcupines, black bear, wolves, sturgeon and burbot. [946] Priority for traditional fishing is already adopted in some Territory, State and Commonwealth legislation which, by exempting Aboriginal people from certain wildlife regulations, in effect give traditional hunting and fishing priority over commercial fishing and over recreational fishing. [947] But other Australian legislation makes no provision at all for traditional hunting, fishing or foraging rights. [948] In States where these rights remain important, Aborigines who rely on traditional foods are dependent on benign administrative practices, including non-prosecution, to maintain their preferred way of life.

985. Commercial Interests and Community Licences.
The Commission takes the view that hunting for local consumption within local family or clan groups should be regarded as traditional even though elements of barter or exchange may be present. [949] Trade or exchange outside the community is however to be treated in the same way as commercial dealings. That traditional fishing should take priority over commercial interests has already been stated. [950] This is the position for example, under the Torres Strait Treaty and its associated legislation. [951] Given reasonable provision for traditional hunting and fishing claims along these lines, the exploitation of resources for commercial purposes, whether by traditional inhabitants or by others, becomes a matter for the relevant licensing or management authorities. One issue of interest for present purposes is access to community licences for commercial resource-harvesting on a local basis. Under the Torres Strait Treaty legislation, a community fishing licence may be issued to individual Aborigines. Legislation in Queensland and the Northern Territory, [952] allows for Aboriginal people as a group to take out a community licence rather than being required to take a licence as a corporation or as individuals. The Northern Territory provisions apply to members of an Aboriginal community living in the vicinity of Aboriginal land and the Queensland provisions apply to reserve or land trust residents. However the Northern Territory experience has been that a community licence, although facilitating commercial fishing by a local community, is not necessarily the best way to meet the needs of Aboriginal communities. In the Northern Territory (as distinct from the Torres Strait) community licences carry a relatively high licence fee, and permit fishing to be conducted on a commercial scale far exceeding what may be necessary or desired. In March 1984 the regulations were amended to enable an Aboriginal licence for non commercial fishing to be obtained. [953] Regulation 7B provides that a Class D licence may be issued to a member of an Aboriginal community, on condition that the licensee shall not use gill-netting above a certain size or in certain waters, or 'supply or dispose of fish except to an Aboriginal community'. Regulation 7B is intended to enable Aboriginal people to trade within their community. A community licence under reg 7B has the advantage over a commercial licence under the Fish and Fisheries Act (NT) s 14. The renewal fee for the former is much less ($5). It may be that such a licence should be adopted elsewhere.

986. The Canadian Experience.
Similarly the James Bay Agreement refers to harvesting for personal and community use, as well as to commercial trapping and commercial fishing. However under this agreement what constitutes community use is fairly widely defined. Community use includes gift, exchange and the sale of all products consistent with current practices between native communities generally, and is not restricted to local groups. Community use does not include the exchange or sale of fish and meat to non natives (except in the case of commercial fisheries) (s 24.3.11). Native harvesting is given priority. Subject to the principle of conservation and subject to game populations, native people are guaranteed levels of harvesting equal to levels present at the time the Agreement came into affect (s 24.6.2). Under the Agreement the Government and the Coordinating Committee are required to ensure that in allocating wildlife resources for harvesting or non-native hunting above the guaranteed levels, the harvesting need of native people and the needs of non-natives for recreational hunting and fishing are taken into account, and that there shall always be some allocation of species for non-native sport hunting and sport fishing (s 24.6.3). In addition it is stated that the exercise of the right to harvest shall not require permits except where expressly stipulated. Where permits are necessary native people shall only be required to pay a nominal fee. [954]

987. Resource Harvesting in Australia.
There are dangers in making comparisons with the Canadian and Alaskan situations, with their different historical and political contexts, [955] including much greater involvement of indigenous people of those countries in commercial harvesting, [956] and the resulting heavy competition for allocation of resources which are key matters in the negotiation for land claims. [957] But there are several instances of Aboriginal involvement in commercial (as opposed to community resource) harvesting. For example, members of the Bardi community are involved in the commercial harvesting of trochus shell, [958] and the Edward River community are involved in the breeding for sale of crocodiles. Resource harvesting on Aboriginal land for commercial as opposed to community use is regulated under the Kakadu Plan of Management (s 29.5.2). In instances such as these, some preference for Aboriginal people for community harvesting of a commercial or semi-commercial character may well be desirable. An advantage of such schemes is that they may assist in providing employment and work skills in areas where there is high unemployment and relatively little commercial activity. [959] But they are distinct from the recognition of traditional hunting and fishing rights for subsistence or related purposes. This point was made strongly by the Director of Fisheries and Wildlife in Western Australia:

Wildlife is rarely commercialised in Western Australia, the precedents are either historic or have been set in the face of overwhelming need to protect agriculture using sale of a product as a means of financing the control operation. There is a growing body of opinion in the community that even this level of commercialisation should be subject to review. I doubt whether any suggestion for Aboriginal preference in commercial ventures would add to the debate on traditional rights. Questions of preference in commercial situations are quite distinct from those of customary rights. Considering the difficulties of the distinction even in current operations and with existing legislation, perhaps it would be in the interests of clarity to keep them separate at all levels. [960]

The Commission agrees with this view. Traditional harvesting should be distinguished from commercial fishing. Special programs may be desirable, but it is necessary to distinguish traditional activities based on local consumption in the broad sense from preferential commercial rights.

988. Recreational Hunting and Fishing.
As the preceding discussion would indicate, recreational hunting and fishing should be treated, at best, no more favourably than traditional activities: depending on the relative weight accorded to commercial harvesting it may accordingly rate rather low in the order of priorities. This was the view taken by the Court in Jack v R , [961] and it is reflected in the Kakadu Plan of Management [962] and the James Bay Agreement. [963] The exact place of recreational vis-a-vis commercial fishing will depend on the circumstances, [964] but it is hard to see that any justification exists for special measures for Aborigines engaged only in recreational hunting and fishing. It is true that the distinction between recreational compared with traditional hunting is hard to draw in particular cases: the method of hunting may be relevant in a dispute as to whether the hunting was recreational rather than undertaken for traditional subsistence purposes. [965] That recreational fishing was originally given priority over traditional fishing in the Great Barrier Reef Marine National Park 'A' Zone under the Cairns and Cormorant Pass Zoning Plan was inappropriate. [966] Thus while in most cases an Aborigine or Torres Strait Islander may wish to prove that he or she was engaging in traditional and not recreational fishing in order to come within an exemption from prosecution under certain wildlife legislation, it would have been necessary in a case of fishing in the Marine National Park 'A' Zone under the Cairns and Cormorant Pass Zoning Plan to establish that recreational (and not traditional) fishing was involved, so as to gain the benefits of s 7.2(c) and to avoid the permit requirements under s 7.2(9). The failure of the Torres Strait Fisheries Act 1984 (Cth) to cover private fishing, thus giving private fishing exemption from regulations applying to traditional fishing, also creates problems requiring amendment of the Act. [967]

989. Access to Pastoral and Crown Land.
Consistently with the principles outlined above, it is reasonable that Aborigines be accorded some access to traditional lands for the purposes of hunting, fishing and gathering, whether these lands are unalienated Crown lands or are subject to leasehold or other interests. It is to be hoped that such access will be maintained unimpaired in relation to South Australian perpetual and pastoral leasehold land. To deny such access, as occurs for example in Queensland, [968] is to deny the reality of hunting and fishing rights. On the other hand where interests in the land are held by persons other than the Crown, conflicting claims and uses are likely, and it becomes necessary to take into account the interests of those affected, whether by negotiated access provisions, recourse to an appropriate tribunal or otherwise. [969]

990. Traditional or other Nexus with Land.
A further definitional question, which has been resolved in different ways in different Australian Acts, is the need for a link between the hunting or other activity and the land or sea on which it is carried out. For example that link may have to be a residential one (so that non-residents with traditional affiliations do not qualify), or it may be that a demonstrated traditional right of foraging is sufficient. Alternatively some less substantial link may be enough. Where the land is Aboriginal land and the hunting is being carried out by those Aborigines entitled to hunt over the land, the link is obviously satisfied. Other cases are not so easily resolved. The Canadian experience suggests that a requirement based on residence or on traditional affiliations or use is necessary, as several submissions pointed out:

While I agree that relating wildlife fights to residence or historical relations to the locale is administratively burdensome and poses difficulties for displaced groups in States such as New South Wales, I'm afraid it will become unavoidable. Wherever wildlife is scarce and restrictions must be imposed, indigenous groups themselves are likely to raise issues of relative entitlement. This has become a serious problem in managing Indian Salmon Fisheries in Washington State. As harvest continues to shrink, tribes intensify their arguments over who has the right to fish where. It has caused considerable friction, and forced the courts and wildlife managers to be more precise in demarcating traditional use areas. (Displaced groups can be assigned rights in otherwise unclaimed areas so that their exercise of rights does not displace other groups.) [970]

[S]ome difficulty has been experienced in this regard with the Natural Resource Transfer Agreement, 1930. Those agreements to some extent replace the restrictions of the treaties and provide for Indian game harvesting without references to additional use and occupancy. As a consequence some concerns have been raised as to over-harvesting, and Indians, say from southern Alberta, harvesting game in Northern Saskatchewan. Consequently, it would seem that the approach that Aborigines should be able to show that 'their use is consistent with traditions' deserves support. [971]

991. Long Association with Land.
On the other hand, an emphasis on a traditional nexus with land may exclude numbers of Aborigines for whom bush food remains important. The Western Australian Land Commissioner, while rejecting claims to 'a general right to hunt, fish and forage over any other person's land' in the absence of some element of a residential, historical or traditional nexus, [972] concluded that:

it is more appropriate to consider the question of access to land to hunt, fish and forage by reference to the land which might be available for that purpose than to concentrate upon the protection of traditional interests. The latter course would exclude the aspirations of large numbers of Aboriginal people who live in areas of the State where their links with the pastoral land are by long association and no longer by tradition. [973]

He thus recommended that Aboriginal people be granted access 'by virtue of traditional association with or long association by residence on or use of the land concerned'. [974] In the circumstances of Western Australia this approach has much to recommend it. But the Aboriginal Land Bill 1985 (WA) itself referred to Aborigines 'who have entitlements in respect of the land in accordance with local Aboriginal tradition' (cl 74(a)). Where hunting, fishing or foraging rights are granted on the basis of traditional affiliations, residential requirements in addition to traditional affiliations are undesirable, since they are likely to distort, rather than recognise or reflect, Aboriginal perceptions and traditions. As the Northern Territory land claim experience has shown, neither residence nor traditional ownership necessarily implies the exclusive right to use land: though courtesy, at least, may require that permission be sought, it is never refused. In these circumstances it should be enough to limit access to land to those Aborigines who can demonstrate traditional attachment to the particular land, or at least that their use is consistent with tradition. To restrict entitlement to inhabitants of the Northern Territory is also inappropriate where there is movement by Aborigines over State borders. In the Northern Territory both the Crown Land Act (NT) s 24 as currently drafted, and the recommendation of Justice Toohey, extend the entitlement both to residents of the land and to 'Aboriginals entitled by Aboriginal tradition to the use or occupation of the leased land'. [975] Where policies of dispersal and displacement have made such demonstrated attachment impossible or extremely difficult to demonstrate (for example in parts of Queensland), such a limitation may be too stringent, and access provisions based on long residential or historical links may be preferred. Thus the linking of access to land 'traditionally used for hunting purposes or to land giving access to any lands to be used', under s 48(1) of the Aboriginal Land Rights Act 1983 (NSW), is inappropriate given the history of settlement in New South Wales, [976] at least unless the term 'traditionally used' is taken to refer only to common use in the relatively recent past. [977]

992. Sea Closures.
One way of recognising traditional fishing rights is to close the seas adjacent to Aboriginal land for the exclusive use of the land-holders, or others with rights to use that land or the adjacent sea. The Northern Territory legislation to this effect was described in Chapter 34. [978] On the other hand, the Western Australian Aboriginal Land Commissioner rejected the vesting of the sea bed as a method of protecting Aboriginal fishing interests, preferring instead an order 'for protection of waters adjacent to Aboriginal land' in cases where Aboriginal applicants could show that use of the waters by others interfered with their traditional use. [979] In making such an order the Tribunal should take into account the commercial recreational and environmental interests of the wider community, with protection orders effecting conservation and marine stock after consultation between the fisheries department and Aboriginal communites. [980] The Aboriginal Land Bill 1985 (WA) substantially accepted these recommendations. [981] The Commission favours this approach. It is regrettable that the proposals were rejected and that there are not ways to protect Aboriginal and Torres Strait Islander fishing interests from interference in seas adjacent to Aboriginal land in South Australia and Western Australia and adjacent to Aboriginal trust areas in Queensland. Legislative protection, along the lines indicated in Western Australia, would be desirable. The Great Barrier Reef Marine Park Authority should also be empowered to zone certain sections of the reef for the use and benefit of Aborigines. This approach has been advocated in relation to the traditional fishing areas adjacent to the Lockhart River and Bamaga communities. [982] But draft zoning plans indicate that the Great Barrier Reef Marine Park Authority has not accepted this recommendation. [983] It has been argued that there is a difficulty in doing this in that the aims and functions of the Authority are limited to balancing conservation of the reef with other uses generally - with no priority given to Aboriginal uses. [984] It is said that the Act tinder which the Authority operates was not enacted for the benefit of Aborigines, as indicated by the absence of any recognition of traditional fishing interests in s 32(7). It is apparent that traditional fishing has not been given priority under the Act, nor does the Act envisage the closing of areas of the Reef for traditional fishing in the same way that it envisages closing off the Reef for scientific purposes under s 32(7)(a)(e), which requires the Authority to have regard to certain matters in the preparation of the zoning plans. It is recommended that the Act be amended to clarify the position by allowing the Minister to take into account, whether specific areas, adjacent to a trust area (for example Yarrabah, Hopevale, Lockhart River, Palm Island) be set aside for traditional fishing by members of that community. [985] Ultimately there should be consideration of whether there may be a need for traditional fishing to protect areas of the sea adjacent to trust areas with the Torres Strait Protected Zone.

993. Traditional or other Nexus with the Sea.
Clearly, for the purposes of special protection and sea closures there needs to be some traditional association or special link with the sea, usually if not invariably involving areas of the sea adjacent to Aboriginal land. [986] For example Aboriginal Land Bill 1985 (WA) was expressed in terms of those Aborigines having entitlements to the sea in accordance with local Aboriginal tradition (cl 86(1)). [987]

994. Involving Aboriginal People in Resources Management.
In the implementation of the principles elaborated above, it is necessary to consider the role of Aboriginal people and their organisations in the management of the resources in question. Two situations need to be distinguished: the involvement of Aboriginal people in seeking either exemption from wildlife laws, or priority over commercial or recreational interests, and secondly, the involvement of Aboriginal people in the management of resources on Aboriginal land. These are dealt with in turn.

995. Consultation with Aboriginal People in the Setting of Priorities.
While it may be necessary to restrict traditional hunting and fishing for specific conservation reasons, such measures should only be taken after consultation with Aboriginal people affected. A genuine attempt should be made, where there are conflicting interests, to establish, in consultation with those Aboriginal people, the extent to which a particular species is threatened with extinction, and the likely impact of the numbers taken by Aborigines upon a species. Only when it is established that traditional hunting and fishing may endanger the species, whether generally or in the relevant area, should such hunting and fishing be limited. Reassessment and monitoring should take place, and there should be provision for restrictions to be lifted should circumstances warrant. This process occurs to some extent already: the principle that controls on Aboriginal hunting rights are best implemented in co-operation with Aboriginal land holders and organisations is supported in several States and at the federal level. [988] The South Australian Interdepartmental Working Party on Aboriginal hunting recommended that this process should occur in relation to hunting in conservation reserves, and such an appraisal has been prepared in relation to the Gammon Ranges reserve in that State. [989] Marsh gives the following account of a successful involvement of indigenous people in wildlife conservation programs:

The Dugong Management and Public Education Programme developed by the Papua New Guinea Division of Wildlife provides an example of how such a programme might develop. In 1976, the dugong hunters at Daru vigorously denied that there was need for a dugong management programme. One year later, they requested that some form of management be implemented in their area. After many long and heated discussions they decided to form the Maza Wildlife Management area incorporating traditional hunting grounds. The local people elected a committee which made rules for running the area; these rules were made law by publication in the Government Gazette. Initially the Committee decided that all dugongs which were caught for sale had to be sold via the Daru market so that catch statistics could be kept and specimens collected for laboratory analysis. They also banned (very effectively) the capture of females with attendant young. In 1979, the use of gill nets to catch dugongs for sale was also banned, and by the time the programme was terminated (due to lack of funds) in 1981, the hunters were talking about banning the use of motorized craft for dugong hunting. [990]

The NT Conservation Commission has sought the co-operation of the Warlpiri Aborigines in the management of spinifex as a food source for the hare wallaby through the regular use of fire. [991] As this and similar experiences indicate, [992] consultation and local involvement in management programs is necessary, not only because the local people are affected by the decisions and entitled to some say in them, but also because management of resources is likely to be more effective with local support.

996. Requiring Consultation: The Need for Legislation.
Even though there may be general support for consultation with Aboriginal people before controls are imposed on traditional hunting and fishing, [993] the question is whether a requirement for such consultation should be written into legislation. In relation to Aboriginal land such a process of consultation is spelt out in the hunting provisions of the Kakadu Plan of Management (s34.2.4) [994] It is also spelt out in the James Bay Agreement's requirement that. the Provincial and Canadian Governments shall exercise their powers to pass wildlife legislation and regulations only upon the advice and after consulting with the Coordinating Committee (s24.5.1, 24.5.2). [995] A legislative example in relation to Aboriginal land in Australia is s 73(1)(c) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which confers power on the Northern Territory Legislative Assembly with respect to:

laws providing for the protection or conservation of, or making other provision with respect to, wildlife in the Northern Territory, including wildlife on Aboriginal land, and, in particular, laws providing for schemes for management of wildlife on Aboriginal land, being schemes that are to be formulated in consultation with the Aboriginals using the land to which the scheme applies, but so that any such laws shall provide for the right of Aboriginals to utilise wildlife resources. [996]

By contrast, in establishing priorities under the general law (as opposed to matters relating to management of Aboriginal land) there is little, if any, requirement for consultation written into Federal or State legislation. The Torres Strait Fisheries Act 1984 (Cth) does not require the Minister to consult with the Islander members of the Joint Advisory Body or with other representatives of the traditional inhabitants before exercising his powers over the 'protected zone'. [997] Nor is there any requirement for the Protected Zone Joint Authority to consult with the traditional inhabitants whose interests may be affected [998] or any requirement that Islanders or the Department of Aboriginal Affairs be represented on the composition of the advisory bodies to the Protected Zone Joint Authority. Negotiations are currently underway to determine the composition of these advisory bodies. The Commission recommends that Islanders and the Department of Aboriginal Affairs both be represented on two such bodies; the proposed Torres Strait Fisheries Management Committee and the Torres Strait Fishing Industry and Islanders Consultative Committee. Given the clear expression of intent in the Torres Strait Treaty that there be consultation and involvement of traditional inhabitants, the Government should ensure the involvement of both the Department of Aboriginal Affairs and the indigenous inhabitants. Furthermore given the extremely complex legal provisions that surround the management of the Torres Strait Protected Zone, it is necessary that indigenous inhabitants receive adequate training and advice of their rights under the provisions of the Torres Strait Fisheries Act 1984 (Cth) and under any regulations and notices that may be issued, together with special representation to protect their interests if necessary. Neither the Great Barrier Reef Marine Park Act (Cth) nor the Regulations thereunder require consultation. Apparently the Great Barrier Reef Marine Park Authority has adopted a policy of consultation with Aboriginal people over and above the general statutory requirements of public consultation. But members of the Authority have argued against the view that this practice be given statutory recognition. [999] While there is a general appreciation and interest by members of the Authority in the importance of consulting with Aboriginal people, it has been said to be neither necessary nor appropriate to write requirements for consultation into the Act, on the basis that, Aborigines are in no different position from the other interests (commercial, recreational, etc) that the Authority is required to take into account, and that there is no specific requirement in the governing Act to consult each of these other interests. In this respect the Act differs from Commonwealth legislation relating to Aboriginal land, where Aborigines are given a certain priority and there must be consultation and joint management. [1000] It has been argued that if the Commonwealth Government intended that Aboriginal interests be given priority over other uses of the Marine Park, this would have been specified in the Act. As a matter of statutory interpretation this argument has some force, but the issue for the Commission is one of policy, in the context of possible changes in Commonwealth laws. A further argument presented by the Authority against writing in a requirement for consultation is that it would create considerable administrative difficulties and would detract from the time available to consult with a range of other groups on other uses. [1001]

997. Commission's Conclusion.
The Commission has already recommended that Aborigines and Islanders engaged in traditional hunting and fishing for subsistence should have priority over commercial and recreational users of the reef. For this reason not only should consultation with Aborigines and Islanders be required under legislation such as the Great Barrier Reef Marine Park Act 1975 (Cth) s 32(2), but the legislation should be amended so as to require the relevant authority to take into account the implications of its operations, plans for Aborigines and Islanders. A similar approach was adopted by the Western Australian Aboriginal Land Commissioner in relation to the work of the Western Australian Environmental Protection Authority. He recommended that the Environmental Protection Act 1971 (WA) be amended to broaden the definition of 'environment' to include the impact of any proposals on Aboriginal people, and thus to require due consideration of Aboriginal aspirations. [1002] Similarly, amendments, for example to the Great Barrier Reef Marine Park Act 1975 (Cth) s 32(2), should be sufficiently broad so that consideration is given for special areas to be zoned for traditional fishing in the same way as consideration is to be given for zoning for scientific purposes. Similar amend-merits should be made to the Marine Parks Act 1982 (Qld), [1003] While the Torres Strait Joint Advisory Body is required to include representatives of the traditional inhabitants, there is no such requirement for the Torres Strait Protected Zone Joint Authority body and related advisory bodies and the Great Barrier Reef Marine Park Authority's Consultative Committee. In the past the latter Committee has contained representatives from government, conservation, tourism, game, commercial and amateur fishing, and mining interests. [1004] The Commission recommends that at both State and federal level, legislation be amended

Furthermore, as the Department of Aboriginal Affairs themselves, have advised, they do not know how effective discussions between the Great Barrier Reef Marine Park Authority and Aborigines and Islanders has been so far in relation to traditional fishing in waters off Queensland. [1006] The Commonwealth should immediately take steps to satisfy itself that consultations to date have been adequate and that Aborigines and Islanders have been fully informed of and understand the implications of the new laws and regulations governing their traditional fishing activities. Where necessary, the Department of Aboriginal Affairs will need to maintain an increased involvement in areas also falling within the province of other Commonwealth Departments such as the Department of Primary Industry to ensure that the interests of indigenous inhabitants are properly represented. As the Department of Aboriginal Affairs has submitted in relation to the Great Barrier Reef Marine Park Region:

given the complexity of marine park management I would say Aboriginal communities stand in need of a special advocate to protect their interests. [1007]

998. Questions of Resources.
The processes of consultation recommended in the previous paragraph may well require additional resources. As one submission commented:

I must commend your [the Commission's] emphasis on the principle of consultation when it comes to integrating interests of Government and different community groups. I can, however, see some procedural problems arising from your suggestion that it would be necessary to 'establish' that hunting is likely to endanger the species before excluding hunting. To do so in any legal sense would require resources far beyond those available to State agencies. Wildlife conservation management consists for the most part of taking pre-emptive actions against the possibility of detrimental change. [1008]

In other words, this process may require a knowledge of wildlife population and biology that may currently not exist, [1009] or which can only be discovered through the use of scientific and field resources that are not available. However, the requirements of consultation, or a preference for restrictions rather than outright prohibitions upon traditional use, do not prevent decisions being taken on the balance of available information and on the basis of an informed judgment. Consultation with Aborigines affected can, in the light of local knowledge of species, increase the fund of available information and further inform judgment. Measures taken in the light of proper consultation are also likely to be more effective, thereby possibly reducing costs of enforcement. Furthermore as an examination of the legislation detailed in Chapter 35 demonstrates, current legislation and departmental practice raise complex legal questions. Resources will be necessary to ensure that Aborigines and Islanders are to be fully informed of their legal position.

999. Consultation or Control?
The general recommendations made in paragraph 934 may also be criticised on the basis that they accord too little influence to Aboriginal people, that they provide for 'consultation' rather than 'control'. As one Canadian authority commented:

I would question whether the term 'consultation' is strong enough, for is not the [issue one of] aboriginal participation in resource management decisions? ... [Flor a long time Canadian aborigines has distinguished between 'mere' consultation and meaningful involvement in decision making. [1010]

But the diversity of situations, problems and authorities in this field in Australia will have become clear from Chapter 35. As the Canadian experience shows, indigenous authority or control over particular resources can only be a matter for negotiations in the particular context (negotiations often subsumed in Canada under a wider discussion of self government or autonomy). The overriding need for unitary management of scarce resources also means that no general formula for Aboriginal control is likely to be acceptable - though the management of resources on Aboriginal land may be at least a partial exception to this. Boards of management should be entrusted with the management of Aboriginal land, including making regulations for its use. In doing so it has been suggested that Aborigines should be able to determine priorities as between, for example, community fishing and conservation. The claimants to the Jawoyn land claim, anticipating a successful resolution of the claim proposed a draft Jawoyn National Park Bill cl 26(7) which provided that the Board itself should determine priorities to be given to the following purposes:

(a) maintenance of the Aboriginal tradition of the traditional Aboriginal owners of the Park;

(e) such other purposes as are determined by the Board. [1011]

This represents a significant development in terms of Aboriginal control of natural resources and activities on Aboriginal land. These proposals predate the 1985 Amendments to the National Parks and Wildlife Conservation Act 1975 (Cth) s l 1(11A), 14 A-14 D. These amendments make detailed provision for the sharing of functions and decision making power between the Aboriginal controlled board and the Director of National Parks in relation to the preparation and implementation of management plans their monitoring and the provision of advice. Disputes are to be resolved by the Minister. [1012] Barsh would prefer greater indigenous control. He argues that:

a far better course is to give each indigenous community full ownership of the wildlife in a clearly demarcated area, and permit the community to set its own priorities. The incentive to conserve rests with the fact that each community has a fixed portion that cannot be replaced. Within that share, the flexible re-allocation between, say consumption and export can be made over the years. This accords with a goal of self-determination or 'self-management’. [1013]

While Aborigines should as far as possible be given control over resources on Aboriginal land, this control should be subject to overriding principles of conservation, which should be a matter for ultimate determination by government. Recent amendments to the National Parks and Wildlife Conservation Act 1975 (Cth) referred to above reflect this principle. As para 979-80 conclude, conservation represents a legitimate restriction on traditional hunting and fishing interests. Subject to this principle there is no reason why by-laws passed by Aboriginal councils should not, within appropriate limits, regulate the control of hunting and fishing on Aboriginal land under the council's jurisdiction. One limitation on this power, contained in the James Bay Agreement, is that by-laws made by Cree and Inuit local governments affecting hunting and fishing by natives (and in some areas by non-natives) must be 'more restrictive than those passed by the responsible Provincial or Federal Government' (s24.5.3). The effect is to give the responsible Government a legislative veto in case of over-exploitation of resources, but not in the case of under utilisation.

1000. Forms of Joint Management of Aboriginal Land.
There are a variety of ways in which land use can be regulated. Under the James Bay Agreement, a Co-ordinating Committee was set up to review, manage, supervise and regulate the hunting, fishing and trapping of the land covered by the Agreement (s24.4.1). The composition of this Committee, which consists of four representatives of each of the Cree Native party, the Inuit Native party, Quebec and Canada (s24.4.2), and two members of the Naskapi Native Party, has already been described. Voting powers are so arranged as to give the relevant Governments, and the Indian groups, a substantial voice in those issues most of concern to them. However, these provisions have not been without their difficulties and the operation of s 24 is currently under review. [1014] Power states that:

The weakest !ink in all the clauses and definitions in the agreement seems to be the method of decision making related to natural resources. [1015]

Apparently the lack of expert advice and experience has led to a tendency to contract out surveys which lack continuity and consistency, and lead to the 'accumulation of a lot of data of rather dubious value'. As a result decisions have sometimes been made on the basis of personality, or of political or other extraneous factors. In consequence some species of fish have been severely depleted and some indeed practically eliminated. [1016] The Western Arctic Claim (s12-14) [1017] contains detailed provisions for the joint management of the Yukon North Slope and for wildlife harvesting and management of the Western Arctic Region. Clearly there is no one model for formal power sharing in relation to question of control and management of natural resources between government authorities and indigenous people. In Quebec, government policy recognises hunting and fishing rights in general, but:

offers to negotiate separately with each nation the modalities of application of these rights in relation to land occupation and to needs. We feel that we cannot deal with these rights for all aboriginal peoples at once because again of the variety of situations. The rights are recognised but remain to be defined in each case. [1018]

Different models of joint management of Aboriginal land currently exist in Australia. For example, the Kakadu plan of management involves informal mechanisms for Aboriginal participation, whereas the Cobourg scheme focuses on formal mechanisms of participation with a board, composed of Aborigines and non-Aborigines, having policy as well as planning functions. [1019] Particularly in the Cobourg plan of management a structure is created that enables formal power-sharing to take place. [1020] Both plans of management are innovative and experimental. They involve participation by Aborigines as park rangers and cultural advisers. Advice is provided by bodies such as the Gagudja Association. They involve administrative and management challenges for Aboriginal and non-Aboriginal personnel alike.

Similarly as has been seen the Jawoyn proposals and the amendments to the National Parks and Wildlife Conservation Act 1975 (Cth), anticipating a successful resolution to the claim, have put forward a proposal which, building on the Cobourg model, ensure a degree of Aboriginal control on Boards of Management and Aboriginal control over planning priorities. [1021] Negotiations have recently been completed pursuant to these amendments in relation to Aboriginal control of the Board of Management of Uluru National Park. [1022] These questions of co-operation and control are properly matters for negotiation between the relevant Aboriginal bodies and Commonwealth or State authorities. No single pattern of control or consultation can be stipulated, but the principle of close co-operation and collaboration remains a vital one.

1001. Summary of Recommendations in this Part.
In this Part, the following recommendations are accordingly made:

∗ Recognition should reflect the wide variety of legitimate interests such as conservation, effective management of natural resources, pastoral and other residential interests and commercial interests. These interests mean that no overriding categorical recognition of traditional hunting, fishing and gathering practices is appropriate (para 972).

∗ Given the need for unitary management of particular resources and in view of the extensive activity at State and Territory level, the Commission does not consider it necessary or appropriate for detailed legislation to be enacted. However a set of general principles should be adopted, with detailed resource management and administrative decisions made at the appropriate levels in consultation with Aboriginal people affected by these decisions (para 973, 978). State and Federal legislation inconsistent with these principles should be amended, as indicated in paragraph 1003.

∗ Traditional hunting and fishing should not be limited to consumption for food or sustenance. The broader notion of subsistence (including ceremonial exchange, satisfaction of kin obligations) is to be preferred. Consumption within the local family or clan groups should be regarded as traditional, even though elements of barter or exchange are present. But trade, exchange or sale outside the local community should be treated in the same way as other commercial dealings with the species in question. Relevant legislation or regulations should state this distinction expressly, to avoid misunderstandings or arguments (para 976, 985-7).

∗ Traditional hunting should not be limited to indigenous species but may include introduced fetal animals (para 975).

∗ In determing whether an activity is 'traditional', attention should be focussed on the purpose of the activity rather than the method. However the method may be relevant in some cases (as will other factors such as whether the person was at the time under his customary laws entitled to kill the animal in question) (para 975, 977).

∗ Conservation principles represent a legitimate limitation on the fights of indigenous people to hunt and fish as do interests of safety, fights of innocent passage, shelter and safety at sea (para 979-983).

∗ Necessary conservation measures may require restrictions on traditional hunting and fishing interests. While Aborigines should be given control over resources on Aboriginal land, this control should nonetheless be subject to the principal of conservation (para 979-81,994-9).

∗ It may be necessary to prohibit or restrict traditional hunting or fishing by limiting the numbers taken, the methods by which or the areas in which they are taken, in the case of rare and threatened species (in particular those threatened with extinction). In this situation it is necessary to determine as far as possible in the circumstances both the status of the species concerned, and the threat to the species posed by traditional hunting and fishing, before long-term decisions are made to restrict traditional hunting and fishing (para 936, 981,994-9). This requires not only an assessment of Aboriginal hunting and fishing practices but also an assessment of other threats to the species, for example commercial or recreational fishing. If restrictions are placed on traditional hunting and fishing practices, there should be regular monitoring and assessment of the situation in consultation with those affected (para 921,995).

∗ As a matter of general principle, Aboriginal traditional hunting and fishing should take priority over non-traditional activities, including commercial and recreational activities, where the traditional activities are carried on for subsistence purposes (para 984, 988). Once this principle is established the precise allocation is a matter for the appropriate licensing and management authorities acting in consultation with Aboriginal and other user groups (para 915, 987-8, 994-5).

∗ Legislation in Queensland and the Northern Territory allowing for Aboriginal people as a group to take out community licences is preferable to the requirement that such a licence be taken out by a corporation or an individual (para 985).

∗ Preferential rights to resource harvesting on Aboriginal land for commercial as opposed to community use may well be desirable, since this may provide advantages such as local employment. But this is a distinct question from the recognition of traditional hunting and fishing rights for subsistence and related purposes. Resource harvesting for commercial purposes as such is a matter for the relevant management authorities. The distinction between traditional harvesting for use within the community as distinct from commercial fishing (preferential commercial rights) should be maintained (para 987).

∗ Recreational hunting and fishing should be treated, at best, no more favourably than traditional activities. The exact place of recreational viz-a-viz commercial fishing will depend on the circumstances, but it is hard to see that any justification exists for special measures for Aborigines who are engaged in recreational hunting and fishing. The Torres Strait Fisheries Act 1984 (Cth), the effect of which may well be to give private fishing exemption from regulations applying to traditional fishing should be amended along the lines proposed in para 1003, and care should be taken to ensure that there is no similar discrimination against traditional fishing, such as previously occurred under the Great Barrier Reef Marine National Park 'A' Zone in relation to the Cairns and Cormorant Pass Zoning Plans (para 988).

∗ At both State and federal level, legislation should be amended to require consultation with Aboriginal people affected where steps are to be taken to restrict traditional hunting and fishing, to ensure that views of those Aborigines affected are taken into account in reaching any decision on the management of resources (para 994-7).

∗ In relation to the Torres Strait and Great Barrier Reef Marine Park regions the Government should satisfy itself that consultations so far have been adequate. The Department of Aboriginal Affairs should be involved in this process along with their Departments. Aborigines and Islanders should be fully informed of all the legal implications of restrictions on their traditional activities. Adequate resources should be provided to government authorities and to Aboriginal and Torres Strait Islander bodies to ensure that such consultation takes place (para 997).

∗ As far as possible Aborigines should be represented on bodies such as the Great Barrier Reef Marine Park Authority Consultative Committee, and on bodies advising the Protected Zone Joint Authority. Where necessary the Department of Aboriginal Affairs should also be represented (para 998).

∗ There is no general formula for Aboriginal control in the management of scarce resources. The responsibility of governments to legislate for conservation of resources does not exclude the role of Aborigines in conservation and management; this is especially so on Aboriginal land. Boards of management should be entrusted with the management of Aboriginal land, including the power to regulate its use. There is no reason why. Aboriginal local councils should not therefore be able to make by-laws regulating hunting and fishing on Aboriginal land; though it may be that this power should be limited to by-laws which are more restrictive than those passed by the responsible State or federal Government (para 999-1000).

∗ There is thus no one model for formal power sharing in relation to the management of national resources. These questions of co-operation and control are properly matters for negotiation between the relevant Aboriginal bodies and Commonwealth or State authorities (para 999).

1002. The Commonwealth's Role.
The question whether these recommendations should receive detailed legislative endorsement has already been raised, [1023] as has the question of federal legislative involvement in areas of unitary resource management committed to the States and Territories. In determining. the Commonwealth's role in the implementation of the principles articulated in para 1001, two questions arise: the legislative competence of the Commonwealth in asserting Aboriginal interests in resources under State or Territory management, and the desirability of such Commonwealth involvement. Questions of fisheries beyond territorial limits apart, the conservation of natural resources is not specifically a matter of Commonwealth legislative competence under the Constitution. However, conservation provisions may be upheld as valid under a variety of powers, as the High Court's decision in the Tasmanian Dam case demonstrates. [1024] One of these powers is the Commonwealth's power to legislate for the people of the Aboriginal race for whom it is deemed necessary to make special laws, under s 51(26). The extent of this power is discussed in greater detail in Chapter 38. [1025] Even under the narrower view preferred by the minority of the High Court in the Tasmanian Dam case, [1026] the Commonwealth has extensive legislative power over the matters raised in this Chapter. In a number of ways the Commonwealth has demonstrated its determination to accord appropriate legislative recognition to Aboriginal customary hunting and fishing interests in projects or areas with which it is otherwise involved. These include the National Parks and Wildlife Act, the Kakadu Plan of Management, the Great Barrier Reef Marine Park and the Torres Strait Treaty provisions. But the question is whether federal legislative involvement should extend further into areas of State or Territory responsibility. In the Commission's view the principle of unitary management of resources is of such importance that such direct federal involvement is not desirable at this stage. However an agreed statement of principles along the lines set out in this Report should be adopted by the Commonwealth in relation to environment and resource matters within its own management or control. These principles should be taken up by the Commonwealth with the States and Territories, in an attempt to ensure more uniform adherence to them in the wide variety of circumstances in which they have to be applied. The work of the Great Barrier Reef Marine Park Authority and of Northern Territory and Commonwealth Wildlife authorities demonstrates that co-operative administrative arrangements with the States may well be effective. Certain States and the Northern Territory have also demonstrated similar willingness to recognise Aboriginal hunting and fishing interests in certain areas.

1003. Legislation Requiring Amendment.
Consistently with this conclusion, legislation inconsistent with the principles set out in this Chapter should be appropriately amended by the competent legislature. Some legislation substantially accords with these principle (for example the National Parks and Wildlife Conservation Act 1975 (Cth), the Wildlife Conservation Act 1976 (WA), the Territory Parks and Wildlife Conservation Act 1976 (NT)) and accordingly requires little or no amendment. At the Commonwealth level the Great Barrier Reef Marine Park Authority Act 1975 and the Torres Strait Fisheries Act 1984 require some amendment. The Great Barrier Reef Marine Park Authority Act 1975 (Cth) should be amended:

The Torres Strait Fisheries Act 1984 (Cth) should also be amended to require appropriate consultation, [1028] and to ensure that priority is not inadvertently accorded to non traditional fishing. [1029] At present, much wildlife legislation in all States, [1030] fisheries provisions in all States, [1031] and access provisions in Queensland, Western Australia and New South Wales [1032] are inconsistent with the recommendations made in this Chapter. Provision should also be made for Aboriginal access to the waters adjacent to Aboriginal land in Western Australia and Queensland. [1033]

1004. Summary of Proposals in this Report.
This Part of the Report summarises the recommendations set out in Parts II-VII and discusses the two basic questions of implementation of these recommendations:

The Commission's recommendations, as set out in Parts II-VII, should first be summarised.

1005. Basic Principles.
The Commission's general conclusions on the Reference, as set out in Parts I and II of this Report, may be summarised as follows:

Scope for Recognition under the Existing Law.

∗ the fact that Aboriginal customary laws have changed in many respects and no longer exist in their pristine form (para 119-121)

∗ the declining importance and limited scope of Aboriginal customary laws (para 122, 124)

These are either not objections to recognition as such (as distinct from considerations in framing proposals for recognition), or are not persuasive (para 217).

∗ the need to acknowledge the relevance and validity of Aboriginal customary laws for many Aborigines (para 103-5)

∗ their desire for the recognition of their laws in appropriate ways (para 106)

∗ their right, recognised in the Commonwealth Government's policy on Aboriginal affairs and in the Commission's Terms of Reference, to choose to live

∗ in accordance with their customs and traditions, which implies that the general law will not impose unnecessary restrictions or disabilities upon the exercise of that right (para 107)

∗ the injustice inherent in non-recognition in a number of situations (para 110-11, 127).

Discrimination, Equality and Pluralism

∗ are reasonable responses to the special needs of those Aboriginal people affected by the proposals;

∗ do not deprive individual Aborigines of basic human rights, or of access to the general legal system and its institutions (para 158-165).

∗ They should, as special laws, only confer rights on those Aborigines who, in the particular context, experience the disadvantages or problems which are the reasons for the provision in question.

∗ Aborigines should, wherever possible, retain rights under the general law (eg, to enter into Marriage Act marriages, to make wills).

∗ Any legislation should be no more restrictive of rights under the general law than is necessary to ensure fidelity to the customary laws or practices being recognised.

∗ Measures of recognition should not unreasonably withdraw legal protection or support from individuals (Aboriginal or non-Aboriginal) (para 165).

∗ the translation of institutions or rules for the purposes of giving them equivalent effect (eg marriage or adoption):

∗ accommodation of traditional or customary ways through protection’s in the general legal system (para 199-207).

1006. Marriage, Children and Family Property.
In Part III of this Report, the following recommendations were made for the recognition of Aboriginal customary laws in the area of marriage, children and family property:

Recognition of Traditional Marriages: General Principles

∗ adoption, fostering and child welfare laws, including both parental consent to adoption, and qualifications to adopt (para 272-9).

∗ distribution of property on death (intestacy, family provision) (para 292, 294).

∗ accident compensation (including workers' compensation, compensation on death, criminal injuries compensation and repatriation benefits) (para 297, 299, 300).

∗ statutory superannuation schemes (and private superannuation schemes established in the future) (para 301).

∗ for all purposes of the Social Security Act 1947 (Cth), with special provision being made for separate payment to spouses, and an associated regulation making power (para 310-2).

∗ spousal compellability and marital communications in the law of evidence (para 315-6).

∗ unlawful carnal knowledge, provided both consent and traditional marriage are proved (para 319).

∗ variation of maintenance and property rights during a relationship (para 284-6) or on divorce (para 289-90).

∗ powers under the Family Law Act 1975 (Cth) to grant injunctions with respect to domestic violence (para 321).

∗ the Family Court's jurisdiction with respect to principal and ancillary relief (para 323).

Distribution of Property

∗ other members of the child's community (in particular, persons with responsibilities for the child under the customary laws of the community) (para 366).

1007. The Criminal Law and Sentencing.
In Part IV of this Report the following recommendations were made for the recognition of Aboriginal customary laws in the area of the criminal law and sentencing.

Intent and Criminal Law Defences

∗ whether the matter can be adequately dealt with by the community under any by-law making powers, and whether any amendment or extension of these powers is needed;

∗ whether resort can or should be made to existing provisions under the general legal system;

∗ whether some additional specific measures of protection are required (para 462, 465)

∗ that an offence has been committed against the general law in circumstances where there is no doubt that the offence had a customary law basis;

∗ that the matter has been resolved locally in a satisfactory way in accordance with customary law processes;

∗ that the relevant Aboriginal community's expectations (or the expectations of each community, if there is more than one) are that the matter has been resolved and should not be pursued further;

∗ that the broader public interest would not be served by engaging in legal proceedings (para 478).

∗ A defendant should not be sentenced to a longer term of imprisonment than would otherwise apply, merely to 'protect' the defendant from the application of customary laws including 'traditional punishment' (even if that punishment would or may be unlawful under the general law) (para 505).

∗ Similar principles apply to discretions with respect to bail. A court should not prevent a defendant from returning to the defendant's community (with the possibility or even likelihood that the defendant will face some form of traditional punishment) if the defendant applies for bail, and if the other conditions for release are met (para 506).

∗ Aboriginal customary laws are a relevant factor in mitigation of sentence, both in cases where customary law processes have already occurred and where they are likely to occur in the future (para 507-8).

∗ Aboriginal customary laws may also be relevant in aggravation of penalty, in some cases, but only within the generally applicable sentencing limits (the 'tariff') applicable to the offence (para 509).

∗ Within certain limits the views of the local Aboriginal community about the seriousness of the offence, and the offender, are also relevant in sentencing (para 510).

∗ But the courts cannot disregard the values and views of the wider Australian community, which may have to be reflected in custodial or other sentences notwithstanding the mitigating force of Aboriginal customary laws or local community opinions (para 511).

∗ Nor can the courts incorporate in sentencing orders Aboriginal customary law penalties or sanctions which are contrary to the general law (para 512-13).

∗ In some circumstances, where the form of traditional settlement involved would not be illegal (eg community discussion and conciliation, supervision by parents or persons in loco parentis, exclusion from land) a court may incorporate such a proposal into its sentencing order (eg as a condition for conditional release or attached to a bond), provided that this is possible under the principles of the general law governing sentencing. Care is needed to ensure appropriate local consultation in making such orders, and flexibility in their formulation. In particular it is important that anyone into whose care the offender is to be entrusted, is an appropriate person, having regard to any applicable customary laws (eg is in a position of authority over him, and not subject to avoidance relationships), has been consulted and is prepared to undertake the responsibility (para 512).

∗ An offender's opportunity to attend a ceremony which is important both to him and his community may be a relevant factor to be taken into account on sentencing, especially where there is evidence that the ceremony and its associated incorporation within the life of the community may have a rehabilitative effect. However initiation or other ceremonial matters cannot and should not be incorporated in sentencing orders under the general law (para 515).

∗ the prosecution's power to call evidence and make submissions on sentence (para 526)

1008. Evidence and Procedure.
In Part V of this Report, the following recommendations were made for the recognition of Aboriginal customary laws in the area of evidence and procedure.

Police Investigation and Interrogation

∗ understood the caution (ie, understood that there was no requirement to answer questions and that any answers might be used in evidence);

∗ did not answer merely out of deference to authority or suggestibility (para 565, 570).

∗ has special knowledge or experience of the customary laws of the community in relation to that matter; or

It should also be stated that such evidence is admissible, notwithstanding that the question of Aboriginal customary law is the issue or a substantial issue in the case (para 642).

Aboriginal Witnesses: Group Evidence and Authority to Speak

1009. Local Justice Mechanisms for Aboriginal Communities.
The conclusions and recommendations contained in Part VI, relating to the establishment or continuation of local justice mechanisms in Aboriginal communities, are, for the reasons given in that Part, less precise and definite in a number of respects than the conclusions and recommendations in other parts of this Report. Those conclusions and recommendations can be summarised as follows:

General Conclusions

∗ The local Aboriginal group should have power to draw up local by-laws, including by-laws incorporating or taking into account Aboriginal customs, rules and traditions.

∗ Appropriate safeguards need to be established to ensure that individual rights are protected, eg by way of appeal.

∗ The by-laws should, in general, apply to all persons within 'the boundaries of the community.

∗ The court's powers should include powers of mediation and conciliation. A court which is receptive to the traditions, needs and views of the local people may be able. to resolve some disputes before they escalate, perhaps avoiding more serious criminal charges. The power to order compensation of some kind in such situations is one way of achieving this.

∗ There should be regular reviews of the operation of any such court, undertaken in conjunction with the local community.

∗ encouragement should be given to local Aboriginal councils to draft appropriate by-laws (rather than simply adopting a central model) (para 746).

∗ There should be greater encouragement for some forms of self-policing, as an adjunct to regular police, including in urban areas (para 862-3, 866).

∗ some facility for promotion of aides (after any necessary training) into the regular force (para 851,854, 855).

1010. Hunting, Fishing and Gathering Rights.
In Part VII of this Report, the following recommendations were made for the recognition of Aboriginal customary laws in relation to hunting, fishing and gathering rights.

General Recommendations.

1011. Separate Considerations.
As stated in para 220, the approach taken so far in this Report has been to consider whether, and in what ways, Aboriginal customary laws should be recognised, after consulting widely with Aboriginal people, their organisations, and others concerned. The question 'what should be done?' had to be considered first. Only after it has been answered should the second question, 'By which authority should it be done?', be dealt with. [1041] The need to draw a distinction between these two questions is clear. Questions of the recognition of Aboriginal customary laws need to be considered on their own merits, without being confused by consideration of almost equally difficult issues of federal constitutional law and federal-State relations. Hence Parts I-VII of this Report, apart from brief references to constitutional issues in relation to particular recommendations, [1042] have not considered in any detail the scope of the Commonwealth's constitutional powers to make special laws for the people of any race, nor how these powers should be exercised. Nor, again with limited exceptions, has the issue of federal-State relations in the implementation of the Commission's recommendations been considered. [1043] These questions must now be dealt with. This Chapter will discuss, first, the scope of constitutional power to implement the recommendations in this Report, and secondly, the broader implications of Commonwealth legislative involvement in this field, before outlining the Commission's approach.

1012. The 'Races' Power.
Section 51 of the Constitution provides that the Commonwealth Parliament has power 'to make laws for the peace order and good government of the Commonwealth with respect to' an enumerated list of topics. For present purposes, the most important source of power is the 'races' power (s51(26)), although the recommendations for the recognition of traditional Aboriginal marriage may also rely on s 51(21), the marriage power. It is also necessary to consider the scope of any other relevant powers, the express or implied prohibitions on Commonwealth power, including the scope of any implication protecting the structure of State courts or authorities, and the express guarantee of freedom of religion (s 116).

1013. Scope of the 'Races' Power. [1044]
Section 51 (26) of the Constitution gives the Commonwealth Parliament:

power to make laws for the peace, order, and good government of the Commonwealth with respect to... the people of any race for whom it is deemed necessary to make special laws.

This power has existed in its present form only since 1967, when there was overwhelming support for a change to the Constitution to delete the words 'other than the Aboriginal race in any State', which specifically excluded 'the Aboriginal race in any State' from its operation. [1045] Since 1967 the Commonwealth Parliament has had concurrent power with the States to make laws with respect to Aborigines, although, as with other Commonwealth powers, the exercise of this power is subject to other limitations within the Constitution. [1046] Only in very recent times has the High Court provided guidance on the scope of s 51(26). This is a reflection of the very limited extent to which the Commonwealth had (until recent years) made use of the power. It is also significant that in the two cases, Koowarta v Bjelke-Petersen [1047] and Commonwealth v Tasmania (the Tasmanian Dam Case) [1048] which have considered the races power in any detail, the legislation which was the subject of challenge was upheld in reliance on the external affairs power rather than the races power. In Koowarta,'Queensland challenged the constitutional validity of the Racial Discrimination Act 1975 (Cth). The Commonwealth, intervening, relied not only on the external affairs power [1049] but also on the races power to support the legislation. The Court, Justice Murphy dissenting, rejected s 51(26) as a source of power for the 1975 Act, on the basis that the Act was not a special law for a particular race, but a general law dealing with discrimination against persons of any race. For example, Chief Justice Gibbs stated:

a law which applies equally to the people of all races is not a special law for the people of any one race. [1050]

In the Tasmanian Dam Case the High Court had to consider whether Commonwealth legislation seeking to prevent the construction of the Gordon-below-Franklin Dam by the Tasmanian Government was valid. The Commonwealth relied primarily on its powers to make laws with respect to external affairs, races and corporations, and members of the Court accordingly considered in detail the scope of each of these powers. The primary basis for the majority decision upholding the legislation was the external affairs power. However the majority also interpreted the races power widely. Justices Mason, Murphy, Brennan and Deane held that s 8 and s 11 of the World Heritage Properties Conservation Act 1983 (Cth) were a valid exercise of the races power. [1051] Chief Justice Gibbs and Justices Wilson and Dawson (dissenting) found the provisions invalid because they did not constitute special laws for the people of the Aboriginal race, but were of their nature general laws. [1052]

1014. 'Special laws'.
The view of the majority in the Tasmanian Dam Case was that provisions based on s 51 (26) need not be limited to dealing with special rights, special protection or special duties of a particular race. A law which protected and preserved matters relating to the history, culture or religion of a race, things which had a special significance to the people of the race, would be valid, even if the law was addressed to persons generally. Justice Mason said:

A law which protects the cultural heritage of the people of the Aboriginal race constitutes a special law for the purpose of para(xxvi) because the protection of that cultural heritage meets a special need of that people ... [S]omething which is of significance to mankind may have a special and deeper significance to a particular people because it forms part of the cultural heritage. Thus an Aboriginal archaeological site which is part of the cultural heritage of people of the Aboriginal race has a special and deeper significance for Aboriginal people than it has for mankind generally... [T]here is a special .need to protect sites for them [the Aboriginals], a need which differs from, and in one sense transcends the need to protect it for mankind. [1053]

Similarly Justice Deane said:

A law protecting [Aboriginal sites] is, in one sense, a law for all Australians. It appears to me, however, on any approach to language, that a law whose operation is to protect and preserve sights of universal value which are of particular importance to the Aboriginal people is also a special law for those people. [1054]

1015. '... With respect to the People of any Race'.
In the Tasmanian Dam Case, it was argued that the Act was not a law 'with respect to the people of' the Aboriginal race because it protected relics and artefacts which were primarily of archaeological significance. However the majority regarded the relics and artefacts as part of the cultural heritage of the Aboriginal race, something which was inseparable from a power to legislate for the people of the Aboriginal race. In the words of Justice Mason:

The cultural heritage of a people is so much of a characteristic or property of the people to whom it belongs that it is inseparably connected with them, so that a legislative power with respect to the people of a race, which confers power to make laws to protect them, necessarily extends to the making of laws protecting their cultural heritage. [1055]

Similarly Justice Brennan said:

The kinds of benefits that laws might properly confer upon people as members of a race are benefits which tend to protect or foster their common intangible heritage or their common sense of identity. Their genetic inheritance is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide. The advancement of the people of any race in any of these aspects of their group life falls within the power. [1056]

Justice Deane observed that the relationship between Aboriginal people and the land which they occupy lies at the heart of traditional Aboriginal culture. [1057] He continued:

In my view, a law which protects those - and only those - endangered Aboriginal sites included in the 'cultural heritage' which satisfy the requirement that they are of particular significance to people of the Aboriginal race is not only a law with respect to Aboriginal sites. It is a law of a character which comes within the primary scope of the grant of legislative power to make laws with respect of people of any race for whom it is deemed necessary to make special laws .... A power to legislate 'with respect to' the people of a race includes the power to make laws protecting the cultural and spiritual heritage of those people by protecting property which is of particular significance to that spiritual and cultural heritage. [1058]

1016. 'For Whom it is Deemed Necessary'.
With the exception of Justice Murphy [1059] all members of the Court in Koowarta and the Tasmanian Dam Case who discussed the matter were of the view that s 51(26) could be used either for the benefit or to the detriment of members of a race, although Justice Brennan suggested that the principal object of the power was to confer benefits:

The passing of the Racial Discrimination Act manifested the Parliament's intention that the power would hereafter be used only for the purpose of discriminatorily conferring benefits upon the people of a race for whom it is deemed necessary to make special laws. Where Parliament seeks to confer a discriminatory benefit on the people of the Aboriginal race, para(xxvi) does not place a limitation upon the nature of the benefits which a valid law may confer, and none should be implied. [1060]

Chief Justice Gibbs in the Tasmanian Dam Case expressed the generally accepted view
that:

'for' in para(xxvi) means 'with reference to' rather than 'for the benefit of' - it expresses purpose rather than advantage. [1061]

It appears to be settled that it is for Parliament to deem it necessary to make the law, and that the courts' role is limited to determining whether the law answers the description of a 'special law for the people of any race...'. This is supported by the High Court's general approach to constitutional interpretation which emphasises that judgments about, the desirability or policy of legislation are a matter for Parliament, and by the word 'deemed' in s 51 (26). [1062]

1017. ‘Any Race’.
The question of what constitutes a 'race' was not considered in any detail by the Court in either Koowarta or the Tasmanian Dam Case. However there is no doubt that the Aboriginal people are a 'race' within the meaning of s 51(26). As Justice Murphy put it in the Tasmanian Dam Case:

Whatever technical meaning 'race' might be given in other contexts, in the Australian Constitution it includes the Aborigines and Torres Strait Islanders and every sub-division of those peoples. To hold otherwise would be to make a mockery of the decision by the people to delete from s 51 (26) the words 'other than the aboriginal race in any State'... which was manifestly done so that Parliament could legislate for the maintenance, protection and advancement of the Aboriginal people. [1063]

Justice Deane expressed the broad and non-technical meaning of the words 'people of any race' which is implicit in the majority's view of the power, in the following way:

The reference to 'people of any race' includes all that goes to make up the personality and identity of the people of a race: spirit, belief, knowledge, tradition and cultural and spiritual heritage. A power to legislate 'with respect to' a people of a race includes the power to make laws protecting the cultural and spiritual heritage of those people by protecting property which is of a particular significance to their spiritual and cultural heritage. [1064]

1018. The Content or Subject Matter of Special Laws.
It is not yet clear what, if any, limits there are on the content or subject matter of a law based on the races power. Justice Stephen in Koowarta's Case implied that there are limits. [1065] Chief Justice Gibbs stated in Koowarta that the Parliament could make laws prohibiting discrimination against Aboriginal people based on race, [1066] and he has expressed the view extrajudicially that the races power would support a bill of rights for the people of a particular race. [1067] The subject matter of the legislation in the Tasmanian Dam Case, Aboriginal sites containing relics and artefacts, was such as to attract the 'races' power. The Senate Standing Committee on Constitutional and Legal Affairs in its Report, Two Hundred Years Later..., which considered the feasibility of a compact or 'Makarrata' between the Commonwealth and Aboriginal people, concluded that the power extended to:

for example, laws dealing with the language and culture of Aboriginal communities; laws for the protection of Aboriginal sacred sites and artefacts; laws recognising and giving effect to Aboriginal law; and laws protecting language rights so as to guarantee the assistance of interpreters to Aboriginal people involved with police, the courts or government departments. All such laws would be special laws for the Aboriginal people. [1068]

Having regard to the breadth of the majority view in the Tasmanian Dam case, [1069] this
broad view of the power is clearly justified.

1019. Other Commonwealth Powers.
Although the power to make special laws for people of the Aboriginal race under s 51(26) is the most important legislative power for present purposes, other Commonwealth powers may also be available, and should be briefly mentioned.

1020. Constitutional Prohibitions or Guarantees.
for the purposes of the recommendations in this Report the most important constitutional restrictions are those imposed by the separation of judicial power, and its associated guarantees. These would prohibit or substantially restrict the Commonwealth from legislating directly for Aboriginal justice mechanisms in the States, other than mechanisms of a conciliation or mediation mind. The limitations imposed by Chapter III were discussed in detail in Chapter 31. [1079] Local justice mechanisms, if they were established in any State, would have to rely on State legislation for their implementation, although the commonwealth could provide funding for such mechanisms. [1080] The only other relevant guarantee is s 116 of the Constitution, which provides that:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Section 116, and in particular the prohibition on establishment of any religion, has been very restrictively interpreted. [1081] It is most unlikely to present any problems, even if some aspects of Aboriginal customary laws constitute a 'religion' within the meaning of s 116 (as is no doubt the case). [1082]

1021. Conclusion.
Accordingly it is clear that, with limited exceptions, the Commonwealth has constitutional power to implement the recommendations in this report under s 51(26) of the Constitution, if necessary supplemented by other powers (s 51(2), s 51(21), s 51(39), s 122). The exceptions derive from the prohibitions or limitations on judicial power in Part III of the Constitution, rather than from any lack of power in s 51. They relate to:

1022. Administrative and Political Constraints.
More significant than questions of constitutional power are the administrative and political constraints of the federal system, a matter on which the Australian situation has much in common with that in Canada and the United States. In many areas at present, legislation affecting Aborigines is predominantly State or Territory legislation, and administrative involvement with Aborigines occurs through State or Territory agencies. There are exceptions to this generalisation (especially in the area of funding and employment schemes through the Commonwealth Departments of Aboriginal Affairs and Social Security), [1086] but in many other areas it remains true, and it is especially true of the criminal justice system. The police, the ordinary criminal courts, the prisons, probation and parole systems are all established under State or Territory law and run by State or Territory agencies. The same is true of the child welfare and juvenile justice systems. Many of the civil and criminal consequences of marriage (eg accident compensation, non-compellability) discussed in Chapter 14 are presently matters of State law. Thus very many of the questions considered in earlier Parts of this Report lie within existing fields of legal and administrative activity of the States and Territories. Commonwealth involvement in these areas would undoubtedly raise sensitivities.

1023. Service Delivery.
In the field of Aboriginal affairs, federal-State issues do not only concern legal standards or political power: they also raise questions about the most effective ways of delivering services in relation to scattered and diverse Aboriginal communities. In a country as large as Australia it is not obvious that a centralised system of service delivery is the best one, even given that substantial Commonwealth financial involvement is likely to continue. However the present Reference, and the recommendations set out in Chapter 37, are concerned with the principles and standards to be applied by courts and officials dealing with Aborigines in contexts where Aboriginal customary laws are relevant, rather than with questions of financial assistance or the provision of services. The recommendations would not change the identity or structure of the Commonwealth, State or Territory bodies which exercise power in such cases, but would prescribe certain standards to be followed in the exercise of these powers. Moreover care has been taken to ensure that these standards are formulated with sufficient flexibility to take into account variations in the customary laws of different Aboriginal communities and the differing extent to which customary laws and traditions are followed in different parts of Australia. [1087] For these reasons the argument about efficient service delivery has very limited relevance to the question whether legislation implementing the Commission's recommendations should be Commonwealth legislation.

1024. Consultation with the States during the Reference.
During the course of work on the Reference the Commission distributed its Research Papers and Discussion Papers to relevant State and Territory Government Departments, and sought to maintain regular contact with Ministers and their Departments and officers. A considerable number of submissions on the Reference came from State and Territory Ministers and officials. [1088] Submissions were received from, and a meeting held with, a National Police Working Party representing State police forces and the Australian Federal Police. The Commission was on several occasions invited by various States and the Northern Territory to comment on draft legislation or other proposals affecting Aborigines. The Commission made submissions to the Northern Territory Government during the drafting of the Northern Territory Criminal Code. [1089] The Commissioner-in-Charge of the Reference addressed a meeting of senior child welfare administrators from all States and the Northern Territory about work on Aboriginal child welfare issues in the Reference. Some of the Commission's Research Papers have been catalysts in some States to further research and reconsideration of policies relating to Aborigines. For example, the Commission's Research Paper 15 on Aboriginal hunting, fishing and foraging rights [1090] in part prompted the reactivation of a South Australian Inter-Departmental Working Party to consider proposals for reform of wildlife and Crown land legislation with respect to traditional hunting and fishing rights. [1091]

1025. State Concerns.
The Commission's work during the course of the Reference encouraged debate and, in some jurisdictions, the reconsideration of existing or the enactment of new legislation, including legislation at State and Territory levels. Different considerations may arise when the question of Commonwealth legislation is raised. State opposition to the enactment by the Commonwealth of legislation may be based on the view that this would intrude into traditional areas of State administrative and legislative responsibility,

even if such legislation were valid as special legislation under s 51(26) of the Constitution. [1092] Opposition may thus be based on arguments of State rights rather than on a proper assessment of the value of the proposals. The merits of the arguments for the recognition of Aboriginal customary laws should not be allowed to be obscured by disagreements about federalism, or about the appropriate machinery to bring about reform.

1026. The Options.
Several different approaches could be taken to the implementation of the recommendations in this Report. The ultimate decision on implementation is, of course, not one for the Law Reform Commission. However the Commission has a responsibility to outline the constitutional powers which are available and the federal-State issues which arise, and to state its preferred approach.

1027. Cost Implications of Different Options.
Some additional costs will be incurred by the Commonwealth, the States and the Territories if the Commission's recommendations for the recognition of Aboriginal customary laws are implemented, whether this were to be done by Commonwealth legislation or by the States and Territories. From the Commonwealth perspective the funding of child welfare services for Aboriginal children, of Aboriginal legal services in relation to compliance with the interrogation rules, and of social security payments arising from the recognition of traditional marriages under the Social Security Act 1947 (Cth) are the most significant areas. Aboriginal child welfare and legal services are already areas of substantial federal financial involvement, and the provisions recommended in these fields, although they may involve some additional costs, can be justified as making the provision of these services more effective, in the interests of the Aboriginal people concerned. [1096] The cost implications for the Social Security Act 1947 (Cth) were discussed in Chapter 16. [1097] As a Departmental Working Group concluded, traditional marriages should be recognised for the purposes of the Act, even though this may increase costs to some degree. [1098] In many cases what would be involved is the reclassification of a benefit which is already paid as a special benefit, as the appropriate pension or other entitlement, so that the increase in costs is not likely to be significant. There will also be certain costs for the States and Territories. Some additional measures of consultation may be necessary under the proposed child placement principles, although in practice, the Commission has been told,

such consultation is already occurring. [1099] Many of the recommendations relating to criminal law and evidence and procedure concern matters which arise now under the general law (eg fitness to plead, the exercise of sentencing discretions). The interrogation rules will place a greater workload on the police, although there may also be savings, if the rules are' complied with, through avoiding lengthy arguments about the reliability of confessional evidence. Overall, it is unlikely that legislation for the recognition of Aboriginal customary. laws Would create significant additional costs to the States and Territories. The administrative and financial consequences of implementation are likely to be minor, and in any event they Should not stand in the way of implementation of the recommendations for the recognition of Aboriginal customary laws. The overriding consideration, in the Commission's view, is the desirability of enacting the provisions recommended in this Report. Arguments about the administrative and other costs of implementation do not outweigh this. Nor do they support the conclusion that legislation to implement the Report should be enacted by the States and the Northern Territory, rather than the Commonwealth.

1028. The Commission's Approach.
Taking into account the result of the 1967 Referendum, the fact that Aborigines. live in all States and Territories, and the special problems Aboriginal people face, the welfare of Aboriginal people in Australia is a national issue and one that should, as far as possible, be dealt with through a coherent national policy. This is particularly so at the level of the basic standards to be applied. The Commonwealth has a clear legislative responsibility, in cases where State or Territory laws do not establish adequate or appropriate rules responding to the special needs of Aboriginal people. This is the case even though it may be more efficient for the implementation of these standards to remain with existing State or Territory officials or bodies. Consistently with this principle, the recognition of Aboriginal customary laws as recommended in this Report should be carried through by means of a federal Act applicable in all States and Territories and relying on the full range of the Commonwealth's constitutional powers. This view was generally supported by Aboriginal people and their organisations, who looked to the Commonwealth to remedy deficiencies in the law and its administration as it applies to Aborigines, through the exercise of the constitutional power granted in 1967. [1100] A federal Act should not, however, preclude the operation of State and Territory laws which are capable of operating concurrently with the federal legislation and are consistent with the approach taken by the Commission. Thus, the Commission favours the second option outlined in paragraph 1029. Several techniques have been adopted, in the draft legislation set out in Appendix 1, to achieve this result.

The draft legislation, in the Commission's view, strikes the right balance between minimum interference in matters otherwise governed by State (or Northern Territory) law, on the one hand, and making adequate provisions for the recognition of Aboriginal customary laws, without regard to State or Territory boundaries, on the other hand.

1029. The Scope of Commonwealth Legislation.
Not all of the Commission's recommendations are included in the draft legislation set out in Appendix l. The principal areas covered in the legislation are:

∗ the proof of Aboriginal customary laws (c126, 27, 28).

On the other hand general legislation has not been recommended for:

In relation to community justice mechanisms a range of options is put forward for consideration by Aborigines and their organisations, and by State and Territory legislators. No one model is appropriate for all of Australia, and the Commonwealth's powers in this area are limited. [1101] In relation to hunting and fishing it is the orderly management of the resource that is important, and special laws dealing with one aspect of resource use (for example traditional hunting) in isolation from either laws for the management of the resource in question are accordingly undesirable. Instead certain guiding principles are suggested which should form the basis of State and Territory legislation, [1102] and amendments are proposed to various Commonwealth Acts in respect of resources which the Commonwealth manages or controls, which reflect these principles.

1030. Aboriginal Involvement in Implementing the Report.
The constitutional and administrative issues discussed in Chapter 38 are important. But more important is the point that the Commission's recommendations relate to matters that are the province of Aboriginal people themselves. The Commission in the course of the Reference consulted widely with Aboriginal people and organisations about the issues involved in the Reference. [1103] As far as possible, it sought the views and reactions of Aboriginal people to proposals in its Research and Discussion Papers. These views and reactions are set out in this Report, as is the Commission's assessment of its consultation process. [1104] The Commission found general support for the recognition of Aboriginal customary laws among the Aboriginal people with whom it consulted. But the Commission does not claim to speak on behalf of Aboriginal people. The proposals summarised in Chapter 37 are presented as the Commission's views as to what appears fair and workable at this time. These proposals are framed from the point of view of the general legal system, with the aim of achieving justice in cases where Aboriginal customary laws and traditions are relevant. Achieving this aim requires continuing consultation by Government with Aboriginal people and appropriate Aboriginal organisations. The importance of this continuing consultation should not be underestimated: there is a need to ensure that the proposals in this Report, when they are implemented, enjoy the broad support of the Aboriginal people. As Dr Bell has pointed out:

Within Aboriginal organisations ... consultative programs have been developed which suit both the organisations and their constituents. It is possible to lock into these channels of communication to inform Aboriginal people of the proposals for recognition. Implementation pro grams should similarly use these channels. [1105]

Indeed a number of the Commission's proposals provide specifically for the involvement of relevant Aboriginal agencies (eg Aboriginal child care agencies in respect of the child placement principle and Aboriginal legal services in relation to many of the proposals in the area of the criminal law and sentencing, especially the interrogation rules). [1106]

1031. The Position of Torres Strait Islanders.
As was pointed out in para 96, Torres Strait Islanders are recognised as a separate group. Although their legal situation has been touched on in a number of different areas in this Report, [1107] they were not specifically included in the Terms of Reference. This exclusion may be justified on the basis of differences in the customary laws and traditions of Aborigines and Torres Strait Islanders. But the Commission's proposals do not seek to specify or codify those customary laws and traditions, but rather to respond to them in flexible and appropriate ways Generally speaking, the proposals are as capable of applying to Torres Strait Islanders as to Aborigines. [1108] Moreover it appears that many of the difficulties that Aborigines experience with the legal system and that are dealt with in this Report are also experienced by Torres Strait Islanders. Together these people represent the indigenous people of Australia, and they should as far as possible be dealt with 'equally in the proposed legislation. For these reasons it is the Commission's view that, while further inquiry may be needed into aspects of Torres Strait Islander customary laws, the recommendations in this Report should also be applied to Torres Strait Islanders, subject to consultation with them. The processes of consultation and involvement in the implementation of the Commission's proposals, outlined in para 1030, should accordingly include Torres Strait Islander people and their organisations.

1032. The Need for Continuing Review.
In the Commission's view the proposals in this Report are suitable for immediate implementation. But the changes that are occurring in Aboriginal communities, and also in Australian society and the legal system generally, require that legislation implementing the recommendations should be kept under review to ensure that it continues to meet the needs of Aboriginal people. For the reasons given in para 219, the Commission does not support a 'sunset clause' in the legislation. But continuing review should take place, to enable changes to occur. These need not involve modifications to existing provisions. New problems may arise where Aboriginal customary laws and traditions require recognition. Thus this Report and the implementation of its recommendations should not be regarded as a final resolution of the question of recognising Aboriginal customary laws in Australian law. As one commentator has said, in a slightly different context:

it is fundamentally inappropriate to think in terms of 'settling' Aboriginal rights or claims. What we need is not a final accounting, like a proceeding in bankruptcy, but a process of political empowerment giving Aboriginal communities some time and security to establish for themselves who they are, what they want to achieve, and what kind of relationship they feel they can have with Australia. [1109]

1033. Limits on the Scope of the Report.
The Terms of Reference limit the Commission's inquiry to the recognition of Aboriginal customary laws and related matters. Although a broad view has been taken of Aboriginal customary laws and what constitutes 'recognition', many issues were raised during the course of the Reference which were beyond the scope of the inquiry, but are important to Aboriginal people and require further investigation. These include:

A primary need is for a national collection of law and justice statistics which specifically identify Aboriginal offenders. [1111] Only in this way can an authoritative picture be developed of the type of offences committed by Aborigines and how they are dealt with by the courts. It might also enable further research into offences committed and more insight to be obtained into the reasons for them.

1034. A New Agency?
Obviously there is an important role for existing bodies with expertise in these various fields. The Australian Institute of Criminology needs to be involved in a more detailed analysis of existing information, including more detailed studies of particular geographical areas and offences. The Australian Institute of Aboriginal Studies has an important role in sponsoring research and as a recorder and custodian of material. But there seems to be a broader range of needs, which are presently met, if at all, only in a decentralised and diffuse way. The specific requirements for consulting effectively with Aboriginal people and involving them in the implementation and review of proposals in this Report, discussed in para 1030-2, and the more general requirements for additional work to be done and measures to be taken in areas such as those listed in para 1033, together raise the question whether a new agency may not be necessary. Such an agency, under Aboriginal control, could be an intermediary between Australian governments and Aboriginal people in relation to legal and social issues. It could assist in tasks of education and training in these fields, and in the preparation and distribution of information (including information in Aboriginal, languages) to Aboriginal communities about available programs or proposals which may affect them. In these and in other ways it could assist in the important and difficult task of consultation with Aboriginal communities on such programs and proposals, and in collating and relaying the responses and demands of Aboriginal people. Of course, some of these functions are already performed by Aboriginal bodies in certain areas of Australia, [1118] and proposals for national organisations with at least some of these functions continue to be made. [1119] In Chapter 31 some of the possibilities for an agency to assist in the implementation of local justice mechanisms in Aboriginal communities were outlined. [1120] However despite the various needs, and in the absence so far of Aboriginal demands for such an agency, the Commission recommends that there be no official agency established to deal with these matters. In order to explain this conclusion, it is necessary to place the matters dealt with in this Report in a broader perspective.

1035. Balancing Considerations.
Undeniably the questions discussed in this Report are not ones on which there is likely to be a consensus. Not only have widely divergent views been expressed, but there are divergent principles and requirements to be reconciled in making particular proposals:

One cannot but be conscious of the diversity of the views that have been expressed about the identification, extent and resolution of the problems involved in the mitigation of the effects which almost two centuries of alien settlement have had on the lives and culture of the Australian Aboriginals. Even among men and women of goodwill there is no obvious consensus about ultimate objectives. At most, there is a degree of consensus about some abstract generalised propositions: that, within limits, the Aboriginals are entitled to justice in respect of their homelands; that, within limits, those Aboriginals who wish to be assimilated within the ordinary community should be assisted in their pursuit of that wish; that, within limits, those Aboriginals who desire separately to pursue and develop their traditional culture and lifestyle upon their ancestral homelands should be encouraged, assisted and protected in that pursuit and development. It is in the identification and resolution of the problems involved in determining 'the limits' that consensus breaks down and that the greatest difficulties lie. The cause of the Aboriginal peoples will not be advanced if those difficulties are ignored. To the contrary, the difficulties will only. be exacerbated. [1121]

Inevitably the Commission has had to confront these difficulties, and to make its own assessment. In doing so, certain basic criteria have been adopted. Proposals for the recognition of Aboriginal customary laws should:

But there are other elements involved in reaching conclusions, including the matters listed in the Terms of Reference. The Commission has sought to avoid 'reinforcing pre-existing stereotypes and myths or creating new ones, [1122] and also to avoid ethnocentric judgments about Aboriginal customary laws, but it is not possible to avoid making judgments, even at the risk of a degree of ethnocentricity. To postulate, as the Terms of Reference do, that Aboriginal people have the right to maintain their cultural identity and to practise their customary laws is to assume that this right, and the limits on it, are externally determined, and is not a recognition so much of cultural autonomy as of a cultural subordination. Perhaps elements of ethnocentricity could only be avoided if recognition of Aboriginal customary laws was part of wider negotiations for autonomy conducted between Aboriginal people and government. Furthermore, the very question whether the general legal system does or does not recognise Aboriginal customary laws in a given context is likely to have some impact upon those laws. The impact may be no less real for being indirect. For example, the exercise of sentencing discretions can affect the nature and extent of 'traditional punishments'.[1123]What may appear an appropriate solution in one area may bring about unintended results in other areas. The Commission has as far as possible refrained from making recommendations that would have this effect. But conflicts between rules may be practically unavoidable. For example, the recognition of traditional marriage for the purposes of property distribution on death may conflict with other Aboriginal traditions, practices and perceptions (eg the idea that a wife is, compared with her husband's family, a 'stranger' and therefore less entitled). Where such conflicts occur, the Commission has proceeded on the basis that Aboriginal people should have access to benefits or rights under the general law, should

they wish to avail themselves of them. [1124] But that premise itself involves a certain preference for individual freedom as opposed to the traditions of a group. As this example demonstrates; the translation of concepts and values between cultures is necessarily imprecise and difficult. As one submission put it:

The men to whom I spoke found it very difficult to correlate particular aspects of their laws to the human 'European' Law, for the reason ... that their law is an extremely complex whole, and it is not possible to extract one piece without affecting the rest of the structure. [1125]

These difficulties are increased by continuing lack of knowledge of the ways in which Aboriginal societies are responding to the general legal system, and to a range of other factors, material and ideological, and by a persistent tendency on the part of non-Aboriginal Australians to assume that Aboriginal customary laws and traditions are now not merely changed but disappearing, transitory. There is an associated assumption that equality inevitably involves, sooner or later, an assimilation of lifestyles and values, and that Aborigines themselves generally want, or are prepared to accept, this state of affairs. Profound observers disagree:

Various European things - our authority, our customs, our ideas and goods - are data, facts of life which the Aborigines take into account in working out their altered system. But I have seen little sign of its going much beyond that. Those Aborigines I know seem to be still fundamentally in struggle with us. The struggle is for a different set of things, differently arranged from those which most European interests want them to receive. Neither side has clearly grasped what the other seeks. All this issues in a dusty encounter to which nothing yet is particularly clear. [1126]

1036. A Change in Focus?
Issues of the relationship between Aboriginal people and the wider Australian community fall into a number of different categories. One such category involves the provision or delivery of government services of various kinds. Some of these (eg education, social security) may be of general application, although the special needs and characteristics of Aboriginal communities may require modification or adjustment in the way the service is delivered. A second category involves very basic questions of the position of Aboriginal people within the Australian community and society, including questions of the extent to which Aboriginal communities are entitled to determine their own future through the exercise of local autonomy or local self-government. So far, Aboriginal policy has usually been regarded not as raising issues of local autonomy or self government so much as involving programs for Aboriginal advancement, attempts at resolving problems of Aboriginal welfare, and the delivery of services to Aboriginal people. To question the adequacy of a 'service delivery' approach is not to deny the need for services, or, for that matter, the need for the reforms recommended in this Report. But it is necessary to treat questions of self-government and autonomy as separate and distinct matters, for negotiation between governments and Aboriginal people. Claims to autonomy or self-government are starting to be articulated by indigenous groups in international forums, and Australian Aboriginal groups have been active in this process. [1127] In Canada that change of focus, from services to self-government, has to a considerable extent been made. Developments in Canada include the following:

(1) The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognised and affirmed.

(2) In this Act, 'Aboriginal peoples of Canada' includes the Indian, Inuit and Metis peoples of Canada.

(3) For greater certainty, in subsection(1) 'Treaty Rights' includes rights that now exist by way of land claims, agreements, or may be so acquired.

(4) Notwithstanding any other provision of this Act, the Aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Section 37 of the Constitution requires a series of First Ministers Conferences, consisting of Aboriginal representatives, Provincial Premiers, the Prime Minister and the leaders of the two Territories, to discuss and seek to define Aboriginal and treaty rights. These meetings are continuing.

It is clear that the indigenous peoples of Canada no longer seek merely the provision of finance for particular projects or the provision of services from the federal, provincial and territory governments. Their claims are now framed in terms of self-government or autonomy, qualified by reference to the circumstances and demands of the particular group. They seek the right to determine their own priorities, not to have them determined for them. [1132]

1037. Conclusion.
There are important similarities between Aboriginal people and Canadian Indians, and equally important differences (including important historical and demographic differences). But whatever the differences, the Canadian developments do demonstrate the potential for resolving problems through agreement on measures of self government in particular fields, and thus help to put this Reference into proper focus. The Commission's proposals are presented not only, or even principally, as a concession to Aboriginal claims or demands. The recognition of Aboriginal customary laws is not part of a negotiated and independent settlement of claims, nor is it as such a matter of self-government or autonomy. The recommendations are primarily a response to the legal system's search for justice in dealing with the Aboriginal people of Australia, a people with distinctive traditions and ways of life. Seen in this perspective, the recognition of Aboriginal customary laws has the aspect of a principled response to legal and cultural diversity, and not just of another government 'service'. In the search for a principled response to the question of the recognition of Aboriginal customary laws by the general legal system, it is proper to use the various agencies at hand, including both Aboriginal agencies such as legal services and child care agencies, [1133] and government bodies such as the Law Reform Commission. This applies both to the formulation of proposals and to their implementation. To go beyond that and to establish an official agency along the lines suggested in para 839-40 and 1034 would be to pre-empt the more basic issues of self-determination or self-government. An official agency, established by government or at its instigation, carries the risk that these basic issues become in effect a matter for unilateral determination rather than negotiation. An 'expert' body might effectively take over a decision-making role, with the result that any action would not be a reflection of Aboriginal views, priorities or initiatives. For these reasons, as well as those stated in para 838-42, the Commission does not recommend the establishment of an overarching Aboriginal agency. The initiative for such an agency must come from Aboriginal people.

ABORIGINAL CUSTOMARY LAWS (RECOGNITION) BILL 1986

TABLE OF PROVISIONS

PART I - PRELIMINARY

Clause
1. Short title
2. Commencement
3. Principal object
4. Special measures
5. Operation of State and Territory laws
6. Application to Territories
7. Act to bind Crown
8. Interpretation
9. Members of Aboriginal communities

PART II - FAMILY LAW

10. Traditional marriage
11. Certificate as to traditional marriage
12. Recognition of traditional marriages
13. Private superannuation
14. Children of traditional marriages to be legitimate
15. Declaration of legitimacy
16. Adoption, &c., of Aboriginal children
17. Distribution on intestacy
18. Family provision

PART III - CRIMINAL LAW

19. Questions of intention and reasonableness
20. Bail
21. Court may refuse to accept plea
22. Homicide
23. Carnal knowledge, &c.
24. Sentencing
25. Effect of intoxication

PART IV - EVIDENCE

26. Customary law a question of fact
27. Evidence of customary laws
28. Group evidence
29. Interrogation, &c., of Aboriginal suspects
30. Confidential communications
31. Dying declarations
32. Confessing breach of customary law
33. Juries
34. Accused may give evidence without being sworn

PART V - MISCELLANEOUS

35. Jurisdiction of courts
36. Regulations

SCHEDULE

Aboriginal child placement principles

1. Interpretation
2. Care of parents
3. Responsible person
4. Aboriginal communities
5. Matters to be taken into account
6. Consultation

A BILL FOR

An Act to make provision for the recognition of Aboriginal customary laws in certain cases, and for related purposes

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

1. This Act may be cited as the Aboriginal Customary Laws (Recognition) Act 1986.

Principal object
3. The principal object of this Act is to make special provision for the recognition, for certain purposes, of the customary. laws of Aboriginal communities.

Special measures
4. The provisions of this Act shall, for the purposes of sub-section 8(1) of the Racial Discrimination Act 1975, be taken to be special measures of the kind referred to in that sub-section.

Operation of State and Territory laws
5. It is the intention of the Parliament that this Act is not to affect the operation of a law of a State or Territory in so far as that law furthers the objects of this Act and is capable of operating concurrently with this Act.

Act to bind Crown
7. This Act binds the Crown in right of the Commonwealth, each of the States, the Northern Territory and Norfolk Island.

Interpretation
8. (1) In this Act, unless the contrary intention appears-
"Aboriginal community" means a community or group (including a kinship group) of Aborigines;
"Aborigine" means a person who is a member of the Aboriginal race of Australia;

"customary laws", in relation to an Aboriginal community, means the customary laws, traditions, customs, observances, practices and beliefs of the community;

"law", in relation to a part of Australia, includes the principles and rules of the common law and of equity in force in that part of Australia;

"legal proceeding" means a proceeding (however described) in a court (including in a court of a State or Territory) or in a tribunal authorised by law to hear and receive evidence;

"offence" means an offence against or arising under a law of the Commonwealth or a law of a State or Territory;

"police officer" means a member or special member of the Australian Federal Police or a member (however described) of the police force of a State or Territory and includes-

(a) a person who holds an office under a law of the Commonwealth, or under a law of a State or Territory, being an office the duties or functions of which are or include duties or functions of a member of the Australian Federal Police; and

(b) a person the duties and functions of whose office or employment include duties or functions of the same kind as the duties or functions of a member of the Australian Federal Police.
(2) A reference in this Act to a court, in relation to a legal proceeding in a tribunal authorised by law to hear and receive evidence, not being a court, is a reference to the tribunal.

Members of Aboriginal communities
9. For the purposes of this Act, a person shall not be taken not to be a member of an Aboriginal community only because the person is for the time being not living in the Aboriginal community.

Traditional marriage
10. (1) Where the relationship between 2 persons, not being of the same sex, is recognised as a traditional marriage under the customary laws of an Aboriginal community of which one of those persons is a member, then, subject to sub-sections (3) and (4), the 2 persons shall, for the purposes of this Act, be taken to be traditionally married to each other.

(2) Where-

(a) the relationship between 2 persons, not being of the same sex, who are not members of an Aboriginal community was, at a time when one of the persons was a member of an Aboriginal community, recognised as a traditional marriage under the customary laws of that community; and

(b) the relationship is still subsisting,
then, subject to sub-sections (3) and (4), the 2 persons shall, for the purposes of this Act, be taken to be traditionally married to each other.

(3) Persons whose marriage to each other was solemnised in accordance with a law of the Commonwealth or a law of a State or Territory, or whose marriage to each other is, under the Marriage Act 1961, recognised as valid in Australia, shall be taken not to be traditionally married to each other for the purposes of this Act.

(4) Where a person who, but for this sub-section, would be taken to be traditionally married to some other person had not, at or before the relevant time, consented to the relationship concerned, then, for the purposes of this Act, the 2 persons shall be taken not to be, or to have been, traditionally married to each other for the purposes of this Act at that time.¹

Certificate as to traditional marriage
11. In any legal proceeding, a certificate in writing given by the public officer of an Aboriginal Council established under the Aboriginal Councils and Associations Act 1976, or of a like body established by or under the law of a State or Territory, that 2 persons named in the certificate, being persons at least one of whom is a member of an Aboriginal community in the area in relation to which the Council or body was established, are or were, at a time specified in the certificate, traditionally married to each other is admissible as evidence that the 2 persons are, or were at that time, so married.

Recognition of traditional marriages
12. (1) The provisions of a law of the Commonwealth, or of a State or a Territory, to the extent that that law makes provision for or with respect to a matter referred to in one of the following paragraphs, are provisions of a law to which this section applies:

(d) the distribution of the estate of a person upon the person dying intestate, either as to the whole or the person's estate or as to a part of it;

(e) the power of a court to make an order (by whatever name called) that provision for a person who is related to a deceased person be made out of the estate of the' deceased person, being provision to which the person would not, but for the order, be entitled;

(f) the establishment and operation of a superannuation or retirement scheme or a like scheme;

(g) payments in respect of a grant, a scholarship or a pension or payments of a like kind;

(h) payments in respect of benefits due to a person under a law that relates to repatriation benefits, compensation in respect of war service or like benefits;

(j) compensation payable to persons who are related to a person who has died or been injured (whether the death or injury occurred in the course of employment or not);

(a) a right, power, duty or immunity (however described) is conferred or imposed by or under provisions of a law to which this section applies on a person who is married or on a class of persons that include persons who are married; and

(b) the same right, power or immunity (however described) is not conferred on a person, or the same duty is not imposed on a person, by or under the provisions of that law only because the person is or has been traditionally married,
the provisions of that law apply in accordance with their tenor to and in relation to the person mentioned in paragraph (b).

(a) a power or function is conferred, or a duty is imposed, by or under provisions of a law to which this section applies; and

(b) the power or function would be exercised or would be exercised in a particular way, or the duty would be performed or would be performed in a particular way, in relation to a person who is married but would not be so exercised or performed in relation to some other person only because the other person is or has been traditionally married,
the provisions of that law apply in accordance with their tenor to and in relation to the other person.

(4) A person on whom a power or function is conferred, or a duty imposed, by sub-section (3) shall not refuse to exercise the power or function, or perform the duty, in relation to a person only because the person is not married or is or has been traditionally married.

(5) In a matter arising under provisions of a law to which this section applies, where-

(a) a court, including a court of a State or Territory, has power under a law of a State or Territory to make an order (by whatever name called and whether in the exercise of a discretion or not); and

(b) the power of the court would not be exercised, or would not be exercised in a particular way, in relation to a person only because the person is or has been traditionally married,
the provisions of the law of the State or Territory by or under which the court may exercise that power apply according to their tenor to and in relation to the person.

(a) because of this section, 2 or more persons would be entitled to a benefit or provision would be made for 2 or more persons; and

(b) but for this sub-section, fewer persons would be so entitled, or provision would be made for fewer persons,
the benefit shall be shared equally, or the provision shall be made equally, between all the persons.

(7) Sub-section (6) does not prevent the exercise of a power conferred by or under a law to which this section applies to apportion a benefit or provision but such an apportionment shall not be made having regard to the fact that a person who would, under that sub-section, share in the benefit or provision is not married or is or has been traditionally married.

(8) The preceding provisions of this section do not have effect to revoke a will or other testamentary instrument.

(b) an act done in relation to the fostering, guardianship or welfare of a young person before the commencement of this Act;

(d) the distribution of the estate of a person who died intestate before the commencement of this Act;

(e) an order of the kind referred to in paragraph (l)(e) made before the commencement of this Act;

(f) the entitlement of a person to a right or benefit under a superannuation or retirement scheme or a like scheme, being an entitlement that accrued before the commencement of this Act;

(g) an act done before the commencement of this Act in relation to a payment of a kind referred to in paragraph (1)(g) or (h);

(h) compensation payable to a person who is related to a person who has died or been injured before the commencement of this Act; or

(j) the compellability of a person to give evidence in a legal proceeding the hearing of which began before the commencement of this Act.

(a) a right (however described) is conferred by or under a superannuation or retirement scheme, or a like scheme, that is established after the commencement of this Act on a person who is married or on a class of persons that includes persons who are married; and

(b) the same right is not conferred by or under the scheme on a person only because the person is or has been traditionally married,
then, by force of this section, that person has the same right under the scheme.

(a) by virtue of this section, 2 or more persons would be entitled to a benefit, or provision would be made for 2 or more persons; and

(b) but for this sub-section, fewer persons would be so entitled, or provision would be made for fewer persons,
the benefit shall be shared equally, or the provision shall be made equally, between all the persons.

(3) Sub-section (2) does not prevent the exercise of a power conferred by or under an instrument establishing a superannuation or retirement scheme, or a like scheme, or making provision for or in respect of the rights of members of such a scheme, to apportion a benefit or provision but such an apportionment shall not be made having regard to the fact that a person who would, under that sub-section, share in the benefit or provision is not married or is or has been traditionally married.

(a) a court, including a court of a State or a Territory, has power under a law of a State or Territory to make an order (by whatever name called and whether in the exercise of a discretion or not); and

(a) the parents of a person are or were at any time traditionally married to each other;

(b) the person would be the legitimate child of those parents if their marriage to each other had at any time been solemnised in accordance with a law of the Commonwealth or a law of a State or Territory, or their marriage to each other were, under the Marriage Act 1961, recognised as valid; and

(c) but for this section, the person would not be taken to be the legitimate child of those parents,
the person is for all purposes the legitimate child of those parents and shall be taken to have been the legitimate child of those parents from the time of his or her birth.

(2) It is the intention of the Parliament that sub-section (1) is not to affect -

(a) the continuing operation of a law of a State or Territory in so far as that law provides for the making or altering of entries in a register;

(b) the continuing effect of the adoption of a person, whether the adoption took place before, or takes place after, the commencement of this Act; or

(c) anything done before the commencement of this Act.

(3) A legitimation under sub-section (1) is not affected by a failure to comply with a law so far as that law makes provision as mentioned in paragraph (2)(a).

Declaration of legitimacy
15. The power of a court under section 92 of the Marriage Act 1961 extends to making a declaration under that section in relation to a person, or to a parent, child or remoter ancestor or descendant of a person, who is declared by sub-section 14(1) to be a legitimate child.

16. (1) Subject to sub-section (2), a law of the Commonwealth, or of a State or Territory, to the extent that it makes provision with respect to -

(b) the care, custody, control, placement, wardship, guardianship or protection of young persons,
is a law to which this section applies.

(2) Where the Governor-General is satisfied that a law of a State or Territory requires that the child placement principles, or principles that, in the opinion of the Governor-General, are substantially to the same effect as the child placement principles, are to be taken into account in connection with the exercise of a power or function conferred, or a duty imposed, by or under a law of a State or Territory that is a law to which this section applies, the Governor-General may by regulation declare that the last-mentioned law is not a law to which this section applies.

(3) A court or other body that, or a person who, is exercising a power or function or performing a duty conferred or imposed by or under a law to which this section applies in relation to an Aborigine shall, so far as is practicable, exercise the power or function, or perform the duty, as the case may be, in accordance with the child placement principles set out in the Schedule.

Distribution on intestacy
17. (1) A person who, under the customary laws of an Aboriginal community of which a deceased person was a member, is entitled, or could reasonably expect, to take an interest in the intestate estate² of the member may apply to the Supreme Court of the State of Territory in which the estate is situated for an order under this section.

(2) Subject to sub-section (3), the application shall not be made more than 6 months after the day on which a court has made an order, by whatever name called, authorising a person (in this section called the administrator) to administer and distribute the estate in accordance with law.

(3) The court may extend the time prescribed under sub-section (2) on such conditions as are just, whether or not the time for making the application has expired, but the time shall not be extended if the estate has been fully distributed.

(4) The application shall include a plan showing the distribution of the estate in accordance with the customary laws of the Aboriginal community of which the deceased person was a member.

(5) A copy of the application shall be served on the administrator and on such other persons as the court directs.

(6) The court may order that the estate be distributed as specified in the order, being a distribution that accords with the customary laws of the Aboriginal community of which the deceased person was a member.

(7) The order has effect according to its tenor notwithstanding any other law of the State or Territory concerned.³

(8) Subject to sub-section (9), but notwithstanding any distribution made by the administrator before the administrator had notice of the application, an order under this section may be made in respect of property that has been distributed.

(9) The order shall not be made so as to affect or disturb a distribution that was a proper distribution made for the purpose of providing for the welfare, education, maintenance or advancement of a person who was, immediately before the death of the deceased person, wholly or partly dependent on the deceased person for support.

(10) In this section, "estate" includes part of an estate.

Family provision
18. The provisions of a law of a State or Territory, to the extent to which those provisions authorise the making of an order of the kind referred to in paragraph 12(1)(e), apply in accordance with their tenor to and in relation to the estate of a deceased person who dies after the commencement of this Act and, at the time of his or her death, is a member of an Aboriginal community and so apply subject to the following modifications'

(a) a person who is related by blood, kinship or marriage to the deceased person (including a person who is traditionally married to the deceased person), being a person who-

(i) but for this paragraph, would not be entitled to make an application under the provisions of that law for an order (by whatever name called)' that provision be made in his or her favour out of the estate of the deceased person; and

(ii) could, at the time of the deceased person's death, have reasonably expected, in accordance with the customary laws of the Aboriginal community, to have received support (including material support) from the deceased person,

(b) an application may be made under the provisions of that law in respect of the estate of the deceased person at any time before -

(i) the expiration of 12 months after the day on which the deceased person died; or

Questions of intention and reasonableness
19. Where a person or body (including a court or a jury) has the function of determining whether a person (in this section referred to as the accused) who was, at the relevant time, a member of an Aboriginal community is guilty of an offence, the matters that person or body shall have regard to in determining a question as to-

(b) the reasonableness of an act or omission by, or a belief of, the accused,
include the customary laws of that Aboriginal community so far as they are relevant.

Bail
20. Where a person or body has, under a law of the Commonwealth or a law of a State or Territory, power to grant bail to a person (in this section referred to as the accused) in respect of an offence, the matters that the person or body shall take into account in determining whether to grant bail to the accused and the conditions on which bail is to be granted include, if the accused or a victim of the offence is a member of an Aboriginal community, the customary laws of that community so far as they are relevant.

Court may refuse to accept plea
21. (1) In a legal proceeding, being a prosecution for an offence, the court shall not accept or admit a plea of guilt by a defendant who is an Aborigine and appears to the court not to be fluent in the English language unless the court is satisfied that the defendant sufficiently understands the nature of the proceeding and the effect of a plea of guilt.

(2) The court may, for the purposes of sub-section (1), adjourn the proceeding to allow the defendant to obtain legal advice or the services of an interpreter.

(3) Sub-section (1) is not intended to limit any other power of the court.

(4) The validity of a criminal proceeding, or of a finding or determination made in, a verdict given in or a sentence passed in a criminal proceeding, shall not be called into question on the ground of a failure to comply with sub-section (1) to any greater extent than it would have been able to have been called into question if this Act had not been passed.

(a) a person (in this section referred to as the accused) is tried for murder or wilful murder;

(c) the accused proves that he or she did that act in the well-founded belief that the customary laws of an Aboriginal community of which the accused was, at the relevant time, a member required that that act be done by the accused (whether alone or with other persons); and

(d) but for this section, the accused would be found guilty of murder or wilful murder,
the accused shall not be found guilty of murder or wilful murder but shall be found guilty of manslaughter.

Carnal knowledge, &c.
23. (1) Where a law of a State or a Territory provides that, in relation to a prosecution for an offence of a sexual nature on a female who has not attained a particular age (whether or not it is necessary to prove any other matter in relation to the offence), it is a defence that, at the relevant time, the defendant was married to the female, then, by force of this section, it is a defence to such a prosecution if the defendant proves that-
(a) he honestly believed that the female consented to the act constituting the offence; and
(b) at the relevant time, he was traditionally married to the female.

(2) Sub-section (1) applies only to and in relation to a prosecution for an offence committed after the commencement of this Act.

Sentencing
24. (1) Where a person who is or was at a relevant time a member of an Aboriginal community is convicted or found guilty of an offence, the matters that the court shall have regard to in determining the sentence to be imposed on the person in respect of the offence include, so far as they are relevant-
(a) the customary laws of that Aboriginal community; and

(b) the customary laws of any other Aboriginal community of which some other person involved in the offence (including a victim of the offence) was a member at a relevant time.

(2) A court may, having regard to the matters referred to in subsection (I), impose on a member of an Aboriginal community who has been convicted or found guilty of an offence a lesser penalty than that otherwise provided for by law.

(3) Where a member of an Aboriginal community has been convicted of an offence, the court may, on application made by a person who is -
(a) a member of the community;
(b) a victim of the offence or a member of his or her family; or

(c) if a victim of the offence is a member of an Aboriginal community-a member of that community,
give leave to the person to make a submission orally or in writing to the court concerning the penalty that should be imposed for the offence.

(4) Leave may be given on such terms as are just.

(5) The court may adjourn the proceeding to enable the application to be made.

(6) This section is not intended to limit any other power of the court.

Effect of intoxication
25. Sections 19, 22, 23 and 24 apply notwithstanding that the person concerned was intoxicated at the relevant time.

Customary law a question of fact
26. A question concerning the existence or content of the customary laws of an Aboriginal community is a question of fact and not a question of law.

Evidence of customary laws
27. (1) Evidence adduced in a legal proceeding (whether in respect of a matter arising under this Act or not) as to the existence or nonexistence, or as to the content, of the customary laws of an Aboriginal community in relation to a matter is not inadmissible in the proceeding only because it is hearsay evidence or is evidence of an opinion if the person giving the evidence-

(a) has special knowledge or experience of the customary laws of the community in relation to that matter; or
(b) would be likely to have such knowledge or experience if such laws existed.

(2) Sub-section (1) applies notwithstanding that the evidence relates to a fact in issue in the proceeding.

Group evidence
28. (1) Where, in a legal proceeding, evidence is to be given about the customary laws of an Aboriginal community, the court may give directions enabling 2 or more members of that community to give the evidence together.

(2) Sub-section (1) is not intended to limit any other power of the court.

"admission" means a representation (including an oral representation, an express or implied representation and a representation to be inferred from conduct) made by a person who is or becomes the defendant in a legal proceeding that is a prosecution for an offence, being a representation-

(a) made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be given; and

"other investigative action", in relation to an offence, means an identification parade, a re-enactment of an event or any other action for which the presence and co-operation of a person suspected of having committed the offence is needed;

"prescribed legal aid body", in relation to a suspect, means a body that provides legal assistance for Aborigines, is prescribed for the purposes of this section and can conveniently provide legal assistance to the suspect;

"prisoner's friend", in relation to a suspect, means a person (not being a police officer) who-

(e) a person believed on reasonable grounds by the police officer in charge of investigating the offence to be a person with whom the suspect should be prevented from communicating in order to prevent-

(ii) the loss, destruction or fabrication of evidence of, or relating to, the offence; or

(iii) intimidation or harassment of a person who is likely to be called to give evidence in a legal proceeding concerning the offence;

"serious offence" means an offence punishable, in the case of a person who has not been previously convicted of the offence, by a term of imprisonment exceeding 6 months;

"suspect", in relation to an offence, means a person who is suspected by a police officer of having committed the offence.

(2) Where the police officer in charge of investigating an offence has reasonable grounds for believing that a suspect who is in custody in respect of the offence is an Aborigine, the police officer shall, as soon as practicable after the suspect is taken into that custody-

(b) tell the suspect that that has been done.

(3) Where the police officer in charge of investigating a serious offence has reasonable grounds for believing that a suspect is an Aborigine, the police officer shall not-

(a) question the suspect or cause or permit the suspect to be questioned by a police officer; or

(b) take any other investigative action or cause or permit any other investigative action to be taken by a police officer,
in connection with the investigation of the offence unless

(c) the suspect has been told in a language in which the suspect is fluent that he or she need not answer any questions, or say or do anything, in connection with the investigation and that anything that he or she might say may be used in evidence; and

(d) a prisoner's friend is present.

(4) If the prisoner's friend is not a person of the kind mentioned in paragraph (a) or (b) of the definition of “prisoner’s friend" in sub-section (1), the police officer shall not be taken to have complied with sub-section (3) unless the police officer has also notified a representative of the prescribed legal aid body before acting as mentioned in paragraph (3)(a) or (b).

(5) Sub-sections (2) and (4) does not apply if, to the knowledge of the police officer, the suspect had made arrangements for a barrister or solicitor to be present.

(6) Sub-sections (2), (3) and (4) do not apply if-

(a) the police officer believes on reasonable grounds that it is necessary for the suspect to be questioned, or for the other investigative action to be taken, without delay in order to avoid danger of the death of, or injury to, a person or serious damage to property; or

(b) the questioning of the suspect, or the taking of the other investigative action, is authorised by a provision of some other Act, an Act of a State or an Act or Ordinance of a Territory, being a provision prescribed for the purposes of this paragraph.⁵

(7) In a legal proceeding that is a prosecution for an offence, where the suspect is a defendant

(a) if sub-section (2) applies in relation to the offence- evidence of an admission made by the suspect after the time when sub-section (2) was to be complied with but before it was complied with; or

(b) if sub-section (3) applies in relation to questioning or other investigative action in relation to the offence-- evidence of an admission made by the suspect in the course of the questioning or other investigative action before that sub-section was complied with,
is not admissible to prove the existence of a fact intended by the suspect to be asserted by the admission and, if it is otherwise admitted, may not be used for that purpose, unless the court finds that, at the time when the admission was made, the suspect-

(e) understood that he or she need not answer any questions, or say or do anything, in connection with the investigation and that anything that he or she said or did might be used in evidence;

(f) understood the nature of the questions put and statements made in the course of the questioning or the nature of the other investigative action, as the case may be; and

(g) did not make the admission merely through a desire to comply with the perceived wishes of a person in authority.
(8) The preceding provisions of this section are not intended to affect the operation of any other law under which evidence of an admission is inadmissible in a legal proceeding.

"confidential communication or record" means a communication or a record (whether or not in writing) that relates to the customary laws of an Aboriginal community, being a communication made or record prepared in such circumstances that -

was under an obligation not to disclose its contents to some other person, whether the obligation arose under a law, in accordance with the customary laws of the Aboriginal community or otherwise, and whether it was express or implied;

"interested person" in relation to a confidential communication or record, means a person by whom, to whom or about whom the communication was made or the record prepared.

(2) In a legal proceeding, where, on the application of an interested person or of a member of the Aboriginal community concerned, the court finds that the undesirability of giving evidence of a confidential communication or record outweighs the desirability of admitting the evidence in the proceeding, the court shall direct that the evidence not be given in the proceeding.

(3) The reference in sub-section (2) to the undesirability of giving evidence of a confidential communication or record is a reference to the undesirability of giving that evidence because of the likelihood that giving the evidence would cause harm to -
(a) an interested person;
(b) a member of the Aboriginal community concerned;
(c) the Aboriginal community concerned;

(d) the relationship in the course of which, or for the purposes of which, the confidential communication was made or was prepared; or

having regard to the extent of that. harm.

(4) For the purposes of sub-section (2), the matters that the court shall take into account include-

(b) if the proceeding is a prosecution for an offence- whether the evidence is to be adduced by the prosecution or by a defendant;

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the powers of the court (whether under this Act or otherwise) to limit or prohibit publication of the evidence.

(5) In addition to any other power of the court, the court may give directions prohibiting or limiting publication of evidence of a confidential communication or record.

(6) Where evidence of a confidential communication or a confidential record is to be given, the court may give directions requiring that persons specified in the direction, or persons included in a class of persons specified in the direction, are not to be in the precincts of the court.

(7) A person shall not knowingly contravene or fail to comply with a direction given under this section.

Penalty:
(8) In the case of a confidential record, the court may, for the purposes of this section, examine the record and make such inferences from it as are proper.

(9) This section is not intended to limit any other power of the court.

(a) evidence of a statement made by an Aborigine is adduced otherwise than from the Aborigine;

(b) because of the Aborigine's expectation of the imminence of his or her death, evidence of the statement would, if the Aborigine had held a religious belief of a particular kind, be admissible in the proceeding to prove the existence of a fact intended by the Aborigine to be asserted by the statement notwithstanding that the evidence is hearsay evidence; and

(c) the Aborigine did not have a religious belief of that kind,
the evidence is not inadmissible only because the Aborigine did not have a belief of that kind.

Confessing breach of customary law
32. (1) In a legal proceeding, where, on the application of a witness who is a member of an Aboriginal community, the court finds that evidence to be given by the witness would tend to show that the witness has contravened, failed to comply with or acted inconsistently with the customary laws of that community, the court shall not require the witness to give the evidence unless the court finds that the desirability of admitting the evidence in the proceeding outweighs the undesirability of giving it.

(2) The reference in sub-section (1) to the undesirability of giving evidence is a reference to the undesirability of giving the evidence because of the likelihood that giving the evidence would cause or result in harm to the Aboriginal community, the witness or some 'other member of the Aboriginal community, having regard to the extent of that harm.

(3) For the purposes of sub-section (1), the matters that the court shall take into account include-
(a) the importance of the evidence in the proceeding;

(b) if the proceeding is a prosecution for an offence- whether the evidence is adduced by the prosecution or by a defendant;

(d) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(e) the powers of the court, whether under this Act or otherwise, to limit or prohibit publication of the evidence.

(4) Sub-section (1) does not affect any other right of a person to decline to give evidence in a legal proceeding.

Juries
33. (1) In a legal proceeding, on application by a party made before a jury is empanelled, the court may make orders ensuring that the jury comprises only persons of a particular sex if the court is satisfied that-

(a) evidence to be given in the proceeding is or includes information that, under the customary laws of an Aboriginal community, may only be revealed to persons of that sex; and
(b) if the order were not made, the evidence would not be given.

(2) In determining whether to make such an order, the matters that the court shall take into account include-
(a) the importance of the evidence in the proceeding;

(b) if the proceeding is a prosecution for an offence- whether the evidence is to be adduced by the prosecution or by a defendant;

(c) whether, if the order is made, other evidence (including, in the case of a prosecution for an offence, evidence given by the victim of the offence) that would otherwise be given would not be given;

(d) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(e) the powers of the court (whether under this Act or otherwise) to limit or prohibit publication of the evidence.

"sworn evidence" means evidence given by a person who, before he or she gave it, had sworn an oath or made an affirmation that the evidence to be given would be true;

"unsworn evidence" means evidence that is not sworn evidence.

(2) In a legal proceeding, being a prosecution for an offence, a defendant who is an Aborigine may give unsworn evidence unless the court, on application by the prosecutor, determines that the defendant is not disadvantaged in relation to the giving of evidence in the proceeding.⁶

(3) For the purposes of sub-section (2), the matters that the court shall take into account include-

(a) any relevant characteristic or condition of the defendant, including age, personality, traditional beliefs, fluency in the English language, education and any mental, intellectual or physical disability to which the defendant is. or appears to be subject;

(b) whether, because of a characteristic referred to in paragraph (a), the defendant will be unfairly prejudiced if he or she is cross-examined; and

(c) the nature of the relevant offence or defence.

(4) Except with the leave of the court, a defendant who has given unsworn evidence in a proceeding may not give sworn evidence in the proceeding.

(5) In giving unsworn evidence, the defendant may read from a document or may use notes and, where a legal practitioner appears for the defendant, the legal practitioner may help the defendant to prepare the statement or notes.

(6) Where the defendant cannot read from a statement in writing, the legal practitioner may, with the leave of the court, read the statement to the court.

(7) After unsworn evidence has been given, the legal practitioner may, with the leave of the court, question the defendant as though in examination-in-chief and answers so adduced shall be taken to be part of the unsworn evidence given by the defendant.

(8) A defendant shall not be cross-examined in relation to unsworn evidence that he or she has given under this section.

(9) Unsworn evidence given under this section by a defendant in a proceeding may not be used for or against any other defendant in the proceeding.

(10) Sub-sections (8) and (9) do not apply if the defendant gives sworn evidence.

(11) Where, under the provisions of a law of the Commonwealth or of a State or Territory, it is an offence to give false or misleading evidence in a legal proceeding, the provisions of that law apply in accordance with their tenor to and in relation to a person giving unsworn evidence under this section in a proceeding to which that law applies.

(12) Where, in a proceeding, a defendant has given unsworn evidence under this section and has not also given sworn evidence, reference shall not be made by the prosecutor to the fact that the defendant failed to give sworn evidence, and any reference that is made to that fact⁷ shall not suggest that-

(a) the defendant did not give sworn evidence, or did not offer himself or herself for cross-examination, because the defendant believed that he or she was guilty of the offence concerned; or

(b) unsworn evidence is, only because it is unsworn evidence or is not subject to cross-examination, necessarily less persuasive than sworn evidence.⁸

(13) The preceding provisions of this section do not apply if, under the law in accordance with which the legal proceeding is being conducted, the defendant may make an unsworn statement in the proceeding.

Jurisdiction of courts
35. (1) Where a court of a State or Territory has jurisdiction with respect to a matter referred to in section 12 or 18, that court is invested with federal jurisdiction, or, if the court is a court of a Territory, jurisdiction is conferred on it to the extent that the Constitution permits, in respect of matters arising under that section.

(2) The jurisdiction invested and conferred by sub-section (1) is invested and conferred within the limits (other than limits as to subject matter) of the several jurisdictions of the courts concerned, whether those limits are as to locality or otherwise.

Regulations
36. The Governor-General may make regulations, not inconsistent with this Act, prescribing matters-
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to the prescribed for carrying out or giving effect to this Act.

"Aboriginal child" means a child whose parents are, or one of whose parents is, an Aborigine;

"prescribed Aboriginal child welfare body", in relation to an Aboriginal child, means the body, if any, that is, in accordance with the regulations, the prescribed Aboriginal child welfare body in relation to the class of children to which the child belongs;

(a) a person who, in accordance with the customary laws of the Aboriginal community of which the child is a member, has an interest in, or responsibility for, the welfare of the child; or

(b) in the case of a child who is, under the law of a State or Territory, in the custody of a person who is not a parent of the child or a member of an Aboriginal community- a person who, in accordance with the customary laws of the Aboriginal community of which a parent of the child is a member, has an interest in, or responsibility for, the welfare of the child.

(2) A reference to a child in these principles, in their application by virtue of section 16 in relation to a law of a State or Territory, is a reference to a person who, for the purposes of that law, is a child.

Care of parents
2. An Aboriginal child should remain in the care of his or her parents except in special circumstances.

Responsible person
3. An Aboriginal child who is not to be in the care of at least one of his or her parents should, unless special circumstances exist, be in the care of a responsible person.

Aboriginal communities
4. Where an Aboriginal child is not to be in the care of at least one of his or her parents or of a responsible person, the choice of the person in whose care the child is to be placed should be made having regard to-

(a) the desirability of the child being in the care of a person who is a member of an Aboriginal community; and

(b) the desirability of the child being able to establish and maintain contact with his or her parents, the responsible persons and the Aboriginal community of which the child is or was a member.

Matters to be taken into account
5. In assessing the welfare, best interests or other circumstances of an Aboriginal child who is or has been at any time a member of an Aboriginal community, due regard should be had to-

(a) the support (including emotional and spiritual support as well as material support) that may be expected to be given to the child by the responsible persons and by other persons who are members of that community;

(b) the benefits to the child that may be expected to arise from being brought up with knowledge and experience of the customary laws of that community;

(c) the difficulties (including emotional and spiritual difficulties) that may be expected to arise, both immediately and later, if the child's contacts with his or her parents, responsible persons or that community were to be terminated or restricted; and

(d) the standards of child care and child welfare in that community,
and undue weight should not be given to considerations of material provision.

Consultation
6. Before any step is taken in relation to the allocation of the care of an Aboriginal child, appropriate consultations in relation to the welfare, best interests and other circumstances of the child should take place with-

(c) unless the child's parents or the responsible persons otherwise direct in writing, the prescribed Aboriginal child welfare body.

NOTES

1. Professor Crawford recommends that the following sub-clause be added at the end of cl 10 (see para 261):

"(5) Where, at a particular time, a marriage between 2 persons is not, because of the age of one or both of the parties, capable of being solemnised under the Marriage Act 1961, the 2 persons shall not be taken to be traditionally married to each other at that time for the purposes of this Act.".

2. Professor Chesterman recommends that sub-cl 17(I) be amended by omitting "intestate" (see para 342).

3. Professor Chesterman recommends that sub-cl 17(7) be omitted and the following sub-clause be substituted (see para 342):

"(7) The order has effect according to its tenor notwithstanding the provisions of-

4. Professor Chesterman recommends that cl 18 be amended by adding at the end the following sub-section (see para 342):

"(2) Where an order made under section 17 is inconsistent with an order made under sub-section (1) on an application made after the first-mentioned order was made, the order made under sub-section (1), to the extent of the inconsistency, is of no effect.".

5. Professors Crawford and Chesterman recommend that sub-cl 29(6) be omitted and the following sub-clause substituted (see para 565):

(a) having regard to the suspect's level of education, fluency in the English language or other relevant characteristics, the special provision made by that sub-section is not necessary to ensure that the suspect is not specially disadvantaged in relation to the interrogation or other investigative action; or

(i) believes on reasonable grounds that it is necessary for the suspect to be questioned, or for the other investigative action to be taken, without delay in order to avoid danger of the death of, or injury to, a person or serious damage to property; or

(ii) is authorised to question the suspect, or to take the other investigative action, by a provision of some other Act, an Act of a State or an Act or Ordinance of a Territory, being a provision prescribed for the purposes of this paragraph.".
6. Justice Wilcox and Professor Tay recommend that sub-cl 34(2) apply to an Aborigine only where "the court, on application by the defendant, determines that the defendant is disadvantaged in relation to the giving of evidence in the proceeding".
7. Justice Wilcox recommends that sub-cl 34(12) be amended by omitting "reference shall not be made by the prosecutor to the fact that the defendant failed to give sworn evidence, and any reference that is made to that fact" and substituting "any reference that is made to the fact that the defendant failed to give sworn evidence" (see para 605).
8. Justice Wilcox recommends that sub-cl 34(12) be amended by omitting paragraph (b) and substituting the following paragraph (para 604):

"(b) unsworn evidence is, only because it is unsworn evidence or is not subject to cross-examination, necessarily less persuasive than evidence adduced from other persons in the proceeding.".

ABORIGINAL CUSTOMARY LAWS (MISCELLANEOUS AMENDMENTS) BILL 1986

TABLE OF PROVISIONS

PART I - PRELIMINARY

Clause:
1. Short title
2. Commencement

PART II - AMENDMENT OF THE COMPENSATION (COMMONWEALTH GOVERNMENT EMPLOYEES) ACT 1971

3. Principal Act
4. Interpretation

PART III - AMENDMENT OF THE FAMILY LAW ACT 1975

5. Principal Act
6. Powers of court in custodial proceedings

PART IV - AMENDMENTS OF THE GREAT BARRIER REEF MARINE PARK ACT 1975

7. Principal Act
8. Object of Act
9. Membership of Committee
10. Termination of appointment of members of Committee
11. Zoning plans

PART V - AMENDMENT OF THE INCOME TAX ASSESSMENT ACT 1936

1 2 Principal Act
13. Application
14. Transitional

PART VI - AMENDMENT OF THE SEX DISCRIMINATION ACT 1984

15. Principal Act
16. Insertion of section 37A

37A. Aboriginal customs and traditions

PART VII - AMENDMENTS OF THE SOCIAL SECURITY ACT 1947

17. Principal Act
18. Interpretation
19. Manner of payment of unemployment and sickness benefit
20. Insertion of section 146A

146A. Modification of Act to take account of traditional Aboriginal marriages

PART VIII--AMENDMENTS OF THE TORRES STRAIT FISHERIES ACT 1984

21. Principal Act
22. Consultation with traditional inhabitants
23. Consultation with traditional inhabitants
24. Contravention of notices under section 16

A BILL FOR

An Act to make amendments to certain Acts to make provision for the recognition of Aboriginal customary laws, and for related purposes

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title
1. This Act may be cited as the Aboriginal Customary Laws (Miscellaneous Amendments) Act 1986.

Commencement
2. This Act shall come into operation immediately after the commencement of the Aboriginal Customary Laws (Recognition) Act 1986.

PART II - AMENDMENT OF THE COMPENSATION (COMMONWEALTH GOVERNMENT EMPLOYEES) ACT 1971

Principal Act
3. The Compensation (Commonwealth Government Employees) Act 1971 [1134] is in this Part referred to as the Principal Act.

Interpretation
4. Section 5 of the Principal Act is amended by omitting from subsection (I) the definition of "spouse".

Principal Act
5. The Family Law Act 1975 [1135] is in this Part referred to as the Principal Act.

Powers of court in custodial proceedings
6. Section 64 of the Principal Act is amended by inserting after subparagraph (1)(bb)(v) the following sub-paragraph:

"(va) if the child is an Aborigine-the extent to which the child placement principles set out in the Schedule to the Aboriginal Customary Laws (Recognition) Act 1986 have been observed in relation to the proposal to exercise the powers of the court ;".

Object of Act
8. Section 5 of the Principal Act is amended by inserting after paragraph (1)(b) the following paragraph.'

"(ba) the people of the Aboriginal race of Australia, or of the Torres Strait Islander race, for whom it is necessary to make special laws ;".

Membership of Committee
9. Section 22 of the Principal Act is amended by inserting after subsection (4A) the following sub-section:
"(4B) The Minister shall, where practicable, appoint as a member of the Committee at least one member of an Aboriginal community, or a Torres Strait Islander community, that has traditional associations with the Great Barrier Reef or the Great Barrier Reef Region.".

Termination of appointment of members of Committee
10. Section 27 of the Principal Act is amended by inserting after subsection (2A) the following sub-section:
"(2B) If a member of the Committee appointed in accordance with sub-section 22(4B) ceases to be a member of a community of a kind referred to in that sub-section, the Minister may terminate the appointment of the member.".

"(f) the recognition of the right of traditional inhabitants to continue traditional fishing and the desirability of minimising the adverse effects of the plan on traditional fishing; and

(g) the reservation of areas, or of parts of areas, of the Great Barrier Reef Region that are contiguous to a Trust Area within the meaning of the Community Services (Aborigines) Act 1984 of the State of Queensland or the Community Services (Torres Strait) Act 1984 of the same State for the purpose of traditional fishing by members of Aboriginal communities, or Torres Strait Islander communities, in the Trust Area.";

"(7A) Where, in the preparation of the plan, the objects referred to in paragraphs (7)(a), (e) and (f) are in conflict, regard shall primarily be had to the objects referred to in paragraphs (7)(a) and (e).

"(7B) Where, the preparation of the plan, the object referred to in paragraph (7)(d) is in conflict with an object referred to in paragraph (7)(f), regard shall primarily be had to the object referred to in paragraph (7)(f)."; and

"(15) The Minister shall not, under sub-section (13), accept or alter a plan if the plan, or the plan as so altered, would materially and prejudicially affect traditional inhabitants in the carrying out of traditional fishing unless the Minister is satisfied that-

(a) the traditional inhabitants or their representatives have been consulted in relation to the plan or the alteration; and

(b) the prejudicial effects of the plan, or of the plan as so altered, on traditional fishing have, so far as practicable, been minimised.

'traditional fishing' means the taking, by a traditional inhabitant, of the living natural resources of the Great Barrier Reef Region (including dugong and turtle) for the purposes of-

(b) use by traditional inhabitants in the traditional activities of the Aboriginal or Torres Strait Islander community concerned,

(i) with a person who is, or at a place that is, not in the vicinity of the Great Barrier Reef Region; or

(ii) with a person who is not a member of the Aboriginal community or the Torres Strait Islander community concerned;

'traditional inhabitant' means a member of the Aboriginal race, or of the Torres Strait Islander race, who has traditional associations with areas in the vicinity of the Great Barrier Reef Region in relation to-

Application
13. Section 159H of the Principal Act is amended by inserting after sub-section (3) the following sub-section:
"(4) Where, during any period, a man and a woman would be taken to be, or would have been taken to have been, traditionally married to each other for the purposes of the Aboriginal Customary Laws (Recognition) Act 1986, this Subdivision applies in relation to each of them as if they had been or were legally married to each other during that period.".

Transitional
14. The amendment of the Principal Act effected by this Part applies in relation to the year of income commencing on I July next succeeding the commencement of this Act and in relation to subsequent years of income.

Principal Act
15. The Sex Discrimination Act 1984 [1138] is in this Part referred to as the Principal Act.

16. The Principal Act is amended by inserting after section 37 the following section:

(a) an act or practice done or engaged in by or on behalf of a member of an Aboriginal community in accordance with the customary laws and traditions of the community, being an act or practice that is necessary to avoid injury to the susceptibilities of members of the community concerning the performance of religious, ritual or ceremonial obligations or activities in accordance with those customary laws and traditions;

(b) the imposition of a restriction or prohibition (whether by order of a court or otherwise) for the purpose of limiting access to information concerning, or a thing connected with-

(i) the performance of the religious, ritual or ceremonial activities of an Aboriginal community in accordance with the customary laws or traditions of the community, being a restriction or prohibition that is necessary to avoid injury of the kind mentioned in paragraph (a); or

(ii) the customary laws of an Aboriginal community, being a restriction or prohibition that is necessary to ensure conformity with those customary laws; or

(c) the imposition of a restriction concerning entry onto land for a particular purpose or at a particular time, being a restriction that conforms to the customary laws of an Aboriginal community with interests or associations with the land.
"(2) In sub-section (1), 'Aboriginal community' and 'customary laws', in relation to an Aboriginal community, and references to a member of an Aboriginal community, have the same respective meanings as in the Aboriginal Customary Laws (Recognition) Act 1986.".

Principal Act
17. The Social Security Act 1947 [1139] is in this Part referred to as the Principal Act.

(a) by inserting in the definition of "de facto spouse" in sub-section (1) "but does not include a traditional spouse" after "legally married to that other person";

(b) by inserting in paragraph (a) of the definition of “married person" in sub-section (1) "or a traditional spouse" after "(not being a de facto spouse)";

(d) by inserting after the definition of “supporting parent's benefit" in sub-section (1) the following definition:

'"traditional spouse' means a person who is traditionally married to some other person for the purposes of the Aboriginal Customary Laws (Recognition) Act 1986;"; and
(e) by inserting after sub-section (1 A) the following sub-section:

"(1 B) A person shall not, for the purposes of this Act, be taken to be legally married to some other person only because the 2 persons are traditional spouses of each other. ".

Manner of payment of unemployment benefit and sickness benefit
19. Section 123 of the Principal Act is amended by adding at the end the following sub-section'

(a) the rate of an unemployment benefit or of a sickness benefit is increased under sub-section 112(2);

(b) the beneficiary and the spouse of the beneficiary are traditionally married to each other within the meaning of the Aboriginal Customary Laws (Recognition)Act 1986; and

(c) the beneficiary is not living apart from the spouse,
the Secretary may authorise payment to the spouse of the whole or part of the amount by which the rate of benefit is so increased and payment shall be made accordingly."

20. The Principal Act is amended by inserting after section 146 the following section:

"146A. Where a person who is entitled to a benefit under this Act is, by virtue of -

(b) being the spouse of a person and the traditional spouse of I or more other persons,
to be taken for the purposes of this Act to be married to 2 or more persons at a particular time, the provisions of this Act that, but for this subsection, would determine the rate of benefit payable to the person apply in relation to that benefit with such modifications, omissions and additions, if any, as are prescribed.".

22. Section 13 of the Principal Act is repealed and the following section substituted:

Consultation with traditional inhabitants
"13. (1) Before exercising a power under this Act so as to affect the interests of traditional inhabitants who are Australian citizens, the Minister shall seek the views of representatives of those inhabitants, including, where appropriate, the views of members of the Joint Advisory Council established under Article 19 of the Torres Strait Treaty.
"(2) The Minister may, at any other time, consult representatives of the traditional inhabitants, including the members of the Joint Advisory Council, on any matter relating to the administration of this Act.".

23. Section 39 of the Principal Act is repealed and the following section substituted:

Consultation with traditional inhabitants
"39. Before exercising a power under this Act so as to affect the interests of traditional inhabitants who are Australian citizens, the Protected Zone Joint Authority shall seek the views of representatives of those inhabitants, including, where appropriate, the views of members of the Joint Advisory Council established under Article 19 of the Torres Strait Treaty.".

Contravention of notices under section 16
24. Section 44 of the Principal .Act is amended by inserting after subclause 4 the following sub-section:

(a) an action or omission by a traditional inhabitant constitutes a contravention of paragraph (l)(b); and

(b) if the act or omission had been done or omitted to have been done by a person who was not a traditional inhabitant, the act or omission would not have constituted an offence against or arising under this Act or against or arising under a law of the State of Queensland that relates to fishing in the Protected Zone,
the traditional inhabitant shall not be taken to have committed an offence by reason of the act or omission.".

DRAFT ABORIGINAL CUSTOMARY LAWS (RECOGNITION) BILL 1986
DRAFT ABORIGINAL CUSTOMARY LAWS (MISCELLANEOUS AMENDMENTS) BILL 1986

1. The purpose of the Aboriginal Customary Laws (Recognition) Bill 1986 is to specify various ways in which the customary laws of Aboriginal communities should be recognised by Australian law, including Commonwealth, State and Territory law.

2. The proposed legislation is based upon a report and recommendations of the Law Reform Commission (ALRC 31, The Recognition of Aboriginal Customary Laws (1986)) which was the product of extensive consultations with Aboriginal people, and of a thorough review of Australian law and practice and of developments in comparable overseas countries.

3. With very limited exceptions, Aboriginal customary laws have never been recognised by Australian law. On British settlement in 1788 Aborigines were, in theory, if not always in practice, treated as British subjects, subject to British laws and with no legal recognition given to their laws or traditions.

4. In this Bill, special provision is made for the recognition of the customary laws of Aboriginal communities for certain purposes. In recognising Aboriginal customary laws and traditions, the Bill does not exempt Aboriginal people from the application of the general Australian law. Instead it seeks to reduce conflicts between the two systems of laws, for example, through the exercise of sentencing discretions and the creation of a partial customary law defence (reducing a charge of murder to manslaughter in some cases). It provides special protection’s for Aboriginal people in those areas where failure to recognise their traditions and customs has produced injustice (for example, recognition of child care responsibilities and protection’s in relation to evidence and procedure). It allows for the recognition of customary laws to take place without incorporating Aboriginal customary laws as part of Australian law and without enforcing customary rules as such. For example, traditional marriages are recognised for certain purposes, but Aboriginal marriage rules are not directly enforced.

5. Under the Bill, provision for recognition of Aboriginal customary laws is made in the following cases:

∗ the proof of Aboriginal customary laws (cl 26, 27, 28).
The Aboriginal Customary Laws (Miscellaneous Amendments) Bill makes further provisions for the recognition of Aboriginal customary laws for the purposes of specific Commonwealth laws, and consequential amendments to other Commonwealth laws as a result of the provisions of the Aboriginal Customary Laws (Recognition) Bill.

1. These clauses set out the short title and commencement of the Bill. The Bill, when enacted, will come into operation on a date to be fixed by the Governor-General by Proclamation.

1. This clause states the principal object of the Bill, which is to make special provisions for the recognition of the customary laws of Aboriginal communities for the purposes specified in the Bill.

1. This clause expresses the Parliament's determination that the provisions of the Bill are necessary in order to provide real equality for Aboriginal people who follow their customary laws and traditions, and that accordingly the provisions constitute special measures within the meaning of s 8(1) of the Racial Discrimination Act 1975 (Cth), corresponding to art 1(4) of the Convention on the Elimination of all Forms of Racial Discrimination set out in Schedule 1 to that Act.
2. Reference: Report, para 158-65.

1. This clause states the intention of Parliament that the Bill is not to override State or Territory laws making similar or further provision for the recognition of Aboriginal customary laws. The Bill is intended to be complementary to such State or Territory legislation.
2. Reference: Report, para 1028.

Clause 6 - Application to Territories
1. The Bill applies to each Territory.

1. An Act is presumed not to bind the Crown unless there is specific provision in the Act to that effect. This clause provides that the legislation is to bind the Crown in all its Australian capacities.'

Clause 8 - Interpretation
1. This clause defines a number of expressions used generally throughout the Bill:

1. Clause 9 makes it clear that a person may remain a member of an Aboriginal community even though the person is, for the time being, not living in the community. Whether a person remains a member of the community in question in these circumstances will be a question of fact in each case.

1. Clause 10 defines traditional marriage for the purposes of the Bill. Later provisions of the Bill (especially cl 12) then extend recognition to traditional marriages as so defined.

2. The basic definition requires that the two persons in question (a man and a woman) be parties to a relationship which is recognised as a traditional marriage under the customary laws of an Aboriginal community to which at .least one of them belongs. The recognition, once extended, continues while the relationships subsists (cl 10(2)).

3. Where persons who are traditionally married are also married under the Marriage Act 1961 (Cth), there is no need to extend recognition to the traditional marriage, since all the legal consequences of traditional marriage dealt with in the Bill will already be covered. Sub-cl (3) excludes the recognition of traditional marriages in this case.

4. Sub-clause (4) prevents the recognition of a relationship as being a traditional marriage at a particular time if, at or before that time, either of the parties to the relationship did not consent to it. This is consistent with art 23(3) of the International Covenant on Civil and Political Rights 1966, art 13(b) of the Australian Bill of Rights Bill 1986 (Cth), and s 23(1)(d) of the Marriage Act 1961 (Cth).

1. This clause provides a method of proving the existence of a traditional marriage, through the provision of a register maintained by an Aboriginal council, whether established under Commonwealth, State or Territory law. In the absence of detailed official provisions for the maintenance and accuracy of such a register (which are not practical), a certificate as to traditional marriage under the clause is only evidence of a traditional marriage and is not conclusive.
2. Reference: Report, para 268.

I. This clause provides for the recognition of traditional marriages, as defined in cl 10, for the purposes of Australian laws of the kind described in sub-cl (1). Its effect is that, where, under a law that meets one of the descriptions in sub-cl (1), legal consequences are attached to marriage, the same legal consequences are attached to traditional marriage (sub-cl (2)). Sub-clauses (3)-(7) make consequential provision for the exercise of powers or discretions under such laws in cases where traditional marriage is recognised under this clause. Powers or discretions under such laws may continue to be exercised, but they may not be exercised in such a way as to negate the effect of the clause in recognising traditional marriage as equivalent to marriage for the purposes of the law in question.

2. Sub-clause (8) makes it clear that the recognition brought about by this clause does not revoke a will (as marriage under the Marriage Act 1961 (Cth) would do).

3. Sub-clause (9) is transitional. The effect of cl 12 is to recognise both existing traditional marriages and traditional marriages entered into in future, but in respect of traditional marriages existing when the proposed legislation comes into force, the effect of the recognition is prospective only.

1. This clause recognises traditional marriage for the purposes of superannuation or retirement schemes, as having the same effect as other legally recognised marriages.
2. Reference: Report, para 301.

1. This clause legitimises the children of a traditional marriage (who are illegitimate under the existing law, except in the Northern Territory). Sub-clauses (2)-(3) make consequential provision for registration of birth in cases where a child is legitimised by sub-cl (1). State or Territory laws for the registration of births will apply to children legitimated under sub-cl (1), but the legitimation will not be affected by failure to comply with those laws.
2. Reference: Report, para 271.

1. This clause extends the powers of a court under the Marriage Act 1961 (Cth) s 92 to make a declaration of legitimacy on application by a person concerned.

1. This clause makes provision for the principles set out the Schedule, referred to as the 'child placement principles', to be applied in the exercise of powers by courts or other bodies pursuant to child welfare or adoption legislation. The effect of the provision is that courts or other bodies having to make decisions involving the custody, guardianship or protection of young persons under such laws will need to consider whether the principles have been satisfied in the particular case. The child placement principles set out in the Schedule do not require any particular decision to be made in such a case, but they do require that the matters specified as relevant should have been considered.

2. Legislation in the Northern Territory (Community Welfare Act (NT) s 69) and in Victoria (Adoption Act 1984 (Vic) s 50) makes provision substantially to the same effect as the child placement principles in respect of decisions involving Aboriginal children. This clause is only concerned to ensure that the child placement principles ate taken into account in these cases: it does not substitute a federal guarantee for a guarantee with equivalent effect contained in State or Territory legislation. Accordingly, where State or Territory legislation does provide that principles which are to substantially the same effect as the child placement principles are to be taken into account in the making of child welfare decisions involving Aboriginal children (whether or not they are also to be taken into account in relation to other children), the Governor-General may by regulation declare that the State or Territory law is not a law to which the section applies. If, as a result of repeal of or changes in the State or Territory law in question, it ceases to provide such a guarantee, the declaration may be revoked: Acts Interpretation Act 1901 (Cth) s 33(3).

1. This clause allows an application to be made for a court-ordered traditional distribution of property if an Aboriginal person dies intestate (without making a will), and the applicant would have been reasonably entitled to expect to share in the deceased's estate in accordance with the customary laws of the Aboriginal community to which the deceased belonged. Applications for traditional distribution are to be made within six months of the date on which the administrator of the deceased's estate was appointed, or, in exceptional circumstances, at a later time allowed by the court.

2. Sub-clauses (4)-(8) provide for the information necessary to support the application for traditional distribution to be produced to the court and to the administrator of the estate, and gives the court power to make an order for traditional distribution which will prevail over the distribution that would otherwise be made under the general law of intestacy. However, an order may not affect or disturb a distribution already made for the benefit of any person who was before the deceased's death dependent on the deceased.

1. This clause allows a person related by blood, kinship or marriage (including traditional marriage) to a deceased member of an Aboriginal community, and who could reasonably have expected, at the time of the deceased's death and in accordance with the customary laws of the community in question to receive support, including material support, from the deceased, to make an application for family provision. It parallels the power of persons related to a deceased who should have been but were not provided for in a will or on intestacy to make an application for family provision under testator's family maintenance legislation.
2. Reference: Report, para 341-2.

1. This clause confirms the rule in criminal trials that, in deciding whether the defendant had a particular intention, or in assessing the reasonableness of an act or omission of the defendant where this is necessary (for example, in assessing the reasonableness of acts for the purpose of determining whether a defendant was provoked to commit a particular offence), the court or jury may take into account, as far as they are relevant, the customary laws of the Aboriginal community to which the defendant belonged.
2. Reference: Report, para 416-8, 441.

1. This clause provides that, in considering whether or not to grant bail to a person in respect of an offence, the court or other body determining the bail application may take into account, as far as they are relevant, the customary laws of an Aboriginal community to which the defendant or a victim of the offence belongs.
2. Reference: Report, para 506-7, 516-7.

1. In order to deal with those exceptional cases where an Aboriginal defendant is not fluent in the English language and appears not to understand, even in a basic way, the nature of the criminal proceedings or the effect of a guilty plea, this clause gives the court power to refuse to accept a plea of guilt. In those circumstances, a 'not guilty' plea would be entered, and the prosecution would be required to prove its case.

2. This clause applies whether or not the Aboriginal defendant is legally represented. However the assurance of the defendant's counsel that the requisite degree of understanding was present would be highly relevant. The court may adjourn to enable the defendant to take legal advice, or to enable an interpreter to be obtained, to assist in explaining the proceeding and the nature of the plea (sub-cl (2)).

3. This power does not limit any other power the court may have to refuse to accept a guilty plea (sub-cl (3)), and failure to exercise the power is not a ground of appeal after verdict (sub-cl (4)).

1. This clause creates a special defence to a charge of murder, analogous to provocation, having the effect of reducing the verdict to one of manslaughter. In consequence, the court would have a discretion as to the sentence to be imposed, even in those States and Territories where the sentence for murder or wilful murder is a mandatory life sentence.

2. The accused must show, on the balance of probabilities, that he or she did the act in question in the well-founded belief that the customary laws of the Aboriginal community to which the accused belonged at the time required that the accused do the act. It is not sufficient that the accused have believed that customary laws required the act to be done: there must have been some basis for that belief. If the accused shows this, a murder verdict will be reduced to manslaughter, in recognition of the conflict of obligations that was involved. The defendant remains criminally responsible for the act, but the court has the power to pass an appropriate sentence.
3. Reference: Report, para 453.

1. This clause recognises traditional marriage for the purposes of those State or Territory laws where marriage is a defence to a charge of unlawful carnal knowledge. As with recognition of traditional marriage for the other purposes specified in cl 12, the effect of the provision is to give traditional marriage the same legal effect as marriage under the general law.

2. In order for the defence to apply, the defendant must show, on the balance of probabilities, he honestly believed that the girl concerned consented to sexual intercourse, and that at the relevant time he was traditionally married to her.

1. This clause provides that, in sentencing a member of an Aboriginal community convicted of an offence, the court may take into account the customary laws of a community to which the defendant belonged, and also the customary laws of any Aboriginal community to which the victim of the offence (if any) belonged, so far as either or both may be relevant. The provision is consistent with much judicial practice.

2. Under the Bill the power to take customary laws into account in mitigation of sentence applies also to an offence for which there would not otherwise be a sentencing discretion (sub-cl (2)). Thus, it applies even in relation to a murder charge in a jurisdiction where there is no sentencing discretion in murder cases. Whether the sentence should be reduced, in such cases, would be a matter for the judge exercising his or her discretion consistently with the jury's finding of guilt.

3. In considering the exercise of this discretion, or any other sentencing discretion, the court may, on application, allow another member of the community in question, a victim of the offence or a member of his or her family, or a member of an Aboriginal community to which the victim belonged to make a submission to the court as to the appropriate sentence. This provision specifically allows for a practice which has in fact often been followed, both in courts of summary jurisdiction and in higher courts, in cases where Aboriginal customary laws have been relevant. In such cases, restricting the opportunity to make submissions on sentence to the Crown and the defendant has sometimes resulted in misleading or untrue impressions of the traditions or opinions of the community in question influencing the sentence passed. The provision is intended to assist the court in determining a proper basis for the sentence in such cases.

1. This clause confirms that cl 19 (questions of intention and reasonableness), 22 (homicide-the partial defence), 23 (carnal knowledge) and 24 (sentencing) are capable of applying notwithstanding that the accused was intoxicated at the relevant time. This does not mean that the presence of alcohol is irrelevant: it may, for example, negate one of the elements required to be made out for the purposes of one of those provisions. But it does not automatically exclude them.

1. This clause makes it clear that the existence or content of the customary laws of an Aboriginal community is a question of fact and not of law. The rules of precedent will not apply to a finding about the customary laws of a particular community.
2. Reference: Report, para 622, 642.

1. This clause overcomes the operation of certain technical rules of the law of evidence which may have the effect of excluding evidence about Aboriginal customary laws on the ground that the person giving it is not academically qualified as an expert, or that the evidence relates to a fact in issue in the proceeding. Under the provision, a person may give evidence about the customary laws of an Aboriginal community, even though the evidence might be based on or contain elements of hearsay or an opinion, if the person giving the evidence either has special knowledge or experience of the customary laws of the community in question in relation to the matter on which evidence is given or would be likely to have such knowledge or experience if the customary laws of the community existed. The weight to be given to such evidence is a matter for the court.
2. Reference: Report, para 642.

1. This clause allows the court to permit several members of an Aboriginal community to give evidence together in testifying about the customary laws of their community. It has been found in practice that this procedure may allow persons to speak with greater confidence and authority about matters which, under the customary laws of the community, are not particularly or exclusively their concern, or as to which they do not, alone, have authority to speak. The provision does not limit any other power of the court.
2. Reference: Report, para 648.

1. This clause lays down some procedures to be followed in the interrogation of Aboriginal suspects by the police. The procedures are intended to assist the police in conducting investigations into suspected offences. Compliance with the procedures will go a considerable way to ensuring the voluntariness of a confession obtained, and thus its admissibility in subsequent proceedings. The procedures are also intended to provide secure guarantees for Aboriginal suspects under interrogation so that they will, as far as possible, be in a position to chose freely whether to speak or be silent. In cases involving traditional Aborigines, cultural factors, and especially deference to the wishes or perceived wishes of persons in authority, are frequently a reason why that choice does not really exist in practice.
2. Definitions: sub-cl (1) sets out certain definitions, including:

3. The interrogation rules, as spelt out in sub-cl (2)-(6), contain three basic requirements.

However, these provisions do not apply in cases of emergency or in cases where the questioning or other action is specifically authorised by some other legislation prescribed for the purposes of the provision (sub-cl (6)).

4. The point of the interrogation rules is to help ensure that admissions and confessions made by Aboriginal suspects are made 'in the free choice of the right to speak or remain silent'. Under this clause, either the rules must be complied with or a relatively strict test for the voluntariness of an admission must be satisfied. Thus, only if it is established that the suspect

will the admission be admissible. If this test is satisfied, there is no reason to exclude the admission even though the rules have not been complied with (sub-cl (7)).

5. Sub-clause 29(8) makes it clear that the requirements of the clause are additional to any general requirements under the law of evidence for the admissibility of an admission or confession.
6. Reference: Report, para 565, 567-73.

1. This clause provides some protection for confidential material communicated to another person, whether orally or in writing, about the customary laws of an Aboriginal community, where the communication was a confidential one, under the customary laws of the Aboriginal community in question or otherwise. In these circumstances, a person who made the communication, or to whom the communication was made, or to whom the communication related, may apply to the court or tribunal to prevent evidence of the communication being given in a legal proceeding. If an application is made, the court has a discretion to order that the evidence not be given, taking into account the circumstances specified in sub-cl (2): harm to persons interested in the communication, to the Aboriginal community in question or its members or to the relationship (such as the relationship between anthropologist and informant) concerned in the making of the communication. Against these factors, the court has to weigh the need for the evidence in question, by whom the evidence has been called, (especially in a criminal case), and other relevant factors. For example, it would be relevant that the confidential communication was only indirectly related to the legal proceeding, or that evidence of it could be obtained in another way. Instead of directing that evidence not be given under this power, the court may give directions prohibiting or limiting publication of evidence of a confidential communication or record, thus seeking to protect the confidence without excluding it altogether. Restriction orders may also involve the exclusion of a certain class of persons from the court, if this is necessary in order to allow the evidence to be freely given: sub-cl (6).
2. The provision is not intended to limit any other power of the court: sub-cl (9).
3. Reference: Report, para 656, 661.

1. As a result of earlier decisions of Australian courts, it is not entirely clear whether the 'dying declarations' exception to the hearsay rule, to the extent that it survives in the law of the States or Territories, is applicable to traditional Aborigines. If the exception does not apply because of an imputed lack of belief in the hereafter (which was, at one stage at least, regarded as necessary for the exception), the rule cannot be justified. This clause puts it beyond doubt that the absence of a religious belief of a particular kind does not render-an Aboriginal dying declaration inadmissible, if it would otherwise have been admissible.
2. Reference: Report, para 611.

1. At common law there is a privilege against self-incrimination on various grounds, most importantly, that the evidence in question would tend to show that the witness has committed a criminal offence. The common law rule has been replaced in a number of States by legislation, but the underlying principle, that a person should not be forced to incriminate or herself himself in legal proceedings, continues to be respected.

2. At present this principle does not extend to incrimination under Aboriginal customary laws. An Aboriginal witness should not be required to incriminate him or herself under the customary laws of the community to which the witness belongs unless there is some overriding reason to require this. Accordingly, the court is given a discretion to excuse a member of an Aboriginal community from giving evidence which would tend to show that the witness has contravened the customary laws of the community in question. In such a case, the question need not be answered unless the court finds that the desirability of admiring the evidence outweighs the likelihood of harm to the witness, to the community in question or to some other member of the community if the question is answered. Sub-cl (2) spells out some of the factors relevant in determining whether this is the case. If particular, it may be that the court's power to restrict or prohibit publication of evidence, or some other power of the court, may prevent harm flowing from the question being answered, or reduce it to such an extent that the question ought to be answered.

3. The court's power under sub-cl (1) is additional to any other right of a person to decline to give evidence in a legal proceeding, for example, on the grounds of self-incrimination under the general law: sub-cl (4).
4. Reference: Report, para 665.

1. In a number of cases, counsel acting for a traditionally oriented Aboriginal defendant have sought an order that the jury comprise only members of the accused's sex, in order that evidence of matters that which may be restricted to members of that sex under Aboriginal customary laws that can be given. It is far from clear that a court has power to make such an order under the general law, although various techniques have been adopted in practice, in the cases where this issue has arisen, to bring about this result. Clause 33 confers express power to make an order of this kind if it is necessary to do so.

2. The power is restricted to cases where the court is satisfied that the evidence will not be given if the order is not made, and the court is required to take into account the factors specified in sub-cl (2), including, in particular, whether the making of the order would restrict evidence to be given by other witnesses in the proceeding (such as evidence given by or on behalf of a victim of the alleged offence).
3. Reference: Report, para 595.

1. Clause 34 confers a special right upon Aboriginal defendants accused of an offence to give unsworn evidence unless the court determines, on application by the prosecution, that the defendant is not disadvantaged in relation to the giving of evidence in the proceeding. In some cases traditionally oriented Aboriginal defendants may be unable to cope with cross-examination, not necessarily because of their involvement in the offence, but because of linguistic or other difficulties in responding to cross-examination in the alien atmosphere of a courtroom. The factors which may cause such problems are indicated in general terms in sub cl (3), as matters the court should take into account in determining whether unsworn evidence may be given.

2. Sub-cl (4)-(11) set out the regime for the giving unsworn evidence. These provisions have the following features:

3. This clause is intended to be supplementary to the provisions of State or Territory law for unsworn statements, and accordingly it only applies where a defendant has no right to give unsworn evidence or to make an unsworn statement under the general law in the proceeding in question: sub-cl (13)).
4. Reference: Report, para 603-5.

1. This clause confers jurisdiction upon State or Territory courts to the extent necessary ito the provisions of the Bill. The Bill does not transfer jurisdiction from one court or body to another, as distinct from laying down provisions which a court or body with jurisdiction in a matter has to apply, or take into account, in exercising jurisdiction in cases where Aboriginal customary laws are relevant.

1. This section confers a regulation-making power to the extent necessary to give effect to the legislation.

1. As provided for in sub-cl 16(3), in certain circumstances courts or other bodies exercising powers under child welfare or similar legislation must act in accordance with the Aboriginal child placement principles in making decisions involving Aboriginal children. These principles are set out in the Schedule.

2. Interpretation. Certain terms are specially defined for the purposes of the Schedule. In particular:

3. The principles state that, except for special circumstances, an Aboriginal child should remain in the care of his or her parents (cl 2), or, if the child is not to remain in the care of one or other of the parents, in the care of a responsible person (cl 3). If neither kind of placement is possible the choice of a person to whom custody will be given is to be determined having regard to

These principles recognise the experience, in Australia as in comparable countries, of alienation and consequent difficulties experienced by Aboriginal children taken away from their own parents and communities, especially where these children are institutionalised.

4. Clause 5 specifies matters to be taken into account in determining whether special circumstances exist for the purposes of cl 2, 3 and 4. It emphasises the need to take account of -

It also provides that undue weight should not be given to considerations of material provision, where the factors specified above conflict with such considerations (cl 5).

5. Clause 6 requires consultation to take place, in making decisions with respect to the welfare and long term placement of an Aboriginal child, with the child's parents, the responsible persons and (unless the parents or responsible persons otherwise direct in writing) the relevant Aboriginal child welfare body. This provision is intended to ensure that as much information as possible is available to the decision-maker, in particular, information about the relevant Aboriginal community and its proposals for the child's welfare.
6. Reference: Report, para 366-8, 373.

1. These clauses set out the short title and commencement of the Bill, which will come into operation as soon as the Aboriginal Customary Laws (Recognition) Act 1986 does so.

Clauses 3 and 4 - Amendment of the Compensation (Commonwealth Government Employees) Act 1971

1. These clauses repeal the definition of 'spouse' in the Compensation (Commonwealth Government Employees) Act 1971, so as to delete the provision concerning Aboriginal traditional spouses from the Act. Traditional marriage will be recognised for the purposes of the Act as a result of the enactment of the Aboriginal Customary Laws (Recognition) Bill 1986 cl 12. An overlapping special definition in the 1971 Act is accordingly unnecessary.
2. Reference: Report, para 297.

1. Clause 6 inserts in the Family Law Act 1975 s 64(1) a reference to the Aboriginal child placement principles set out in the Schedule to the Aboriginal Customary Laws (Recognition) Bill 1986. In some cases it will be necessary for the Family Court or other courts exercising jurisdiction under the Family Law Act 1975, when making custody or similar decisions involving the welfare of Aboriginal children, to apply these principles. There have already been cases in the Family Court where these considerations have been raised. The principles give no priority to one parent over another in decisions involving a child, but they may be relevant in cases between a parent and some other party in relation to a child.
2. Reference: Report, para 366-8.

1. Clauses 7 and 8 are preliminary clauses, leading to cl 9-11 which make various amendments to the Great Barrier Reef Marine Park Act 1975 to allow for the appropriate recognition of the traditional hunting and fishing activities of Aborigines and Torres Strait Islanders in the Great Barrier Reef Marine Park. As a preliminary to these changes, s 5 of the 1975 Act is amended to insert a reference to the special power in s 51(xxvi) of the Constitution on which these special provisions may be based.

Clauses 9 and 10 - Membership of committee and termination of appointment of members of committee

1. This clause provides that, where practicable, the Minister should appoint at least one Aboriginal or Torres Strait Islander representative, being a person with traditional associations with the Great Barrier Reef Region, as a member of the consultative committee advising the Minister under the Act (cl 9). The Minister is given power to terminate the appointment of such a member if that that person ceases to be a member of an Aboriginal or Torres Strait Islander community in the Region (cl 10).

1. This clause adds additional provisions to s 32 of the Act, which provides for zoning plans in the Great Barrier Marine Park Region. These additions allow the Minister specifically to consider the need to ensure that the right of traditional inhabitants to continue traditional fishing in the Region is maintained as far as possible, and in particular to take into account whether specific areas, close to a trust area belonging to an Aboriginal or Torres Strait Islander community, should be set aside for traditional fishing by members of that community.

2. Proposed sub-s 32(7A) and (7B) are inserted to establish priorities as between conflicting or potentially conflicting considerations to be taken into account by the Minister under the Act. In particular, conservation of the natural resources of the Region takes priority over traditional fishing activities, in the event that conflict occurs. On the other hand, the rights of traditional inhabitants to maintain their way of life based on traditional fishing take priority over commercial and recreational uses of the area (sub-cl 7B)).

3. Proposed sub-s 32(15) requires the Minister, before accepting or altering a zoning plan which materially and prejudicially affects traditional inhabitants in carrying out traditional fishing, to ensure that consultations have occurred, in relation to the plan or the alteration, with the traditional inhabitants or their representatives and that the prejudicial effects of the plan or the alteration have, so far as practicable, been minimised. It provides some security to traditional inhabitants that their traditional fishing activities will not be interfered in without appropriate consultation and consideration of alternative means of achieving the same ends.

4. Proposed sub-s(16) defines relevant terms for the purposes of s 32 as amended. In particular, 'traditional fishing' is defined to mean the taking of the living natural resources of the Region for consumption or use in traditional activities within the community concerned, but excluding the taking of resources for commercial purposes (whether or not within that community) or for barter or exchange outside the community or with persons from outside the community. Traditional fishing is subsistence activity in a broad sense, excluding commercial and similar activities.
5. Reference: Report, para 949-50, 1002.

1. Clause 13 amends the Income Tax Assessment Act 1936 so as to recognise traditional marriage for the purposes of spouse rebates under the Act. Provision is made now in other parts of the Act for dealing with consequential matters, including the amount of rebate in respect of plural spouses (see especially s 159H(3), 159J(5A)).

2. Recognition applies only to income tax years commencing after the legislation comes into force.
3. Reference: Report, para 322.

1. Clause 16 amends the Sex Discrimination Act 1984 by inserting a proposed s 37A in the Act. Based on an anology with s 37, which protects religious beliefs and observances, the purpose of cl 37A is to allow recognition of the separate domains of knowledge and ceremonial activity of Aboriginal men and women under Aboriginal customary laws. The existence of these separate domains may give rise to situations in which, unless an exemption were obtained from the Human Rights Commission, the Act would be contravened. This applies, for example, to situations involving

Orders or restrictions of this kind have already been made or imposed, whether with an authorisation from the Human Rights Commission or otherwise, but it is desirable that specific provision be made for them.
2. Reference: Report, para 595, 656.

1. These provisions amend the Social Security Act 1947 so as to recognise Aboriginal traditional marriages for the purposes of the Act.

2. In particular, s 6 of the Act is amended by substituting definitions of 'married person' and 'spouse', and adding a new definition of 'traditional spouse', so as to make it clear that traditional spouses within the meaning of the Aboriginal Customary Laws (Recognition) Bill 1986 count as spouses for the purposes of the Act (cl 18).
3. Reference. Report, para 310.

1. This clause inserts in s 123 of the Act a provision allowing the Secretary of the Department of Social Security to authorise separate payments to be made to a traditional spouse of a person in receipt of unemployment benefits or sickness benefits. Separate payments to spouses are more consistent with Aboriginal customary laws, as well as helping to ensure that the benefit payment is used to support the persons it is intended to benefit.
2. Reference: Report, para 306, 310.

Clause 20 - Modification of Act to take account of traditional Aboriginal marriages

1. This clause inserts a proposed s 146 in the Social Security Act 1947 (Cth), enabling the Act to be modified by Proclamation to cope with difficulties or anomalies arising from the existence of plural traditional marriages, or plural marriages one of which is a traditional marriage, where more than I qualifying spouse exists as a result of the amendments brought about by this Bill. This will prevent undesirable aggregation of payments in the hands of one pensioner or beneficiary, and enable modifications to the assets test or other requirements for a pension or benefit to be made to deal with this special situation.
2. Reference: Report, para 305, 308-10.

1. Clause 22 and 23 amend, respectively, s 13 and 39 of the Torres Strait Fisheries Act 1984 to require consultation with representatives of the traditional inhabitants of the Torres Strait area before, respectively, the Minister or the Protected Zone Joint Authority exercise powers under the Act which adversely affect the interests of traditional inhabitants. This provision is consistent with the spirit of the Torres Strait Treaty itself, which sets aside the Protected Zone in large part to protect the interests of traditional inhabitants of the Zone.
2. Reference: Report, para 996-7, 1002.

1. As a side effect of the agreed distribution of legislative authority in the Torres Strait area between the Commonwealth and Queensland, arising from the Torres Strait Treaty, anomalies can arise because of the fact that Commonwealth legislation applies to traditional fishing but not to recreational or other non-commercial fishing. The jurisdictional distribution could inadvertently discriminate against traditional inhabitants by subjecting them to a liability to which they would not be subject (for example, because there is no equivalent rule for recreational fishing under Queensland law) if they were not engaged in traditional fishing. This contradicts the basic purpose of the Act and the Torres Strait Treaty.

2. Accordingly, cl 24 inserts in s 44 of the Act a new provision absolving a traditional inhabitant from liability under the Act if the liability exists only because the defendant is a traditional inhabitant, and no equivalent general liability exists under Commonwealth or Queensland law. Thus, if it is necessary to regulate non-commercial fishing in the Protected Zone, Commonwealth and Queensland law will need to make the same provisions dealing with traditional inhabitants and other persons fishing in the Zone.
3. Reference: Report, para 943-6, 1002.

Field Trips
(I) Northern Territory, 13-16 June 1977. Report by Justice MD Kirby.
(ii) Western Australia, 13-14 December 1977. Report by Justice MD Kirby.

(iii) The Pitjantjatjara (Part of NT, SA and WA) Field Report 1, May 1978. Report by Daryl Gunter.
(iv) The Pitjantjatjara, Field Report 2, May 1978. Report by Bryan Keon Cohen.

(v) Northern Territory: Top End, Field Report 3, June/July 1978. Report by Bryan Keon-Cohen.

(vi) Kimberleys and Part of Northern Territory. Field Report No 4, June/July 1978. Report by Daryl Gunter.

(vii) North West Reserve of SA. Report by Bruce Debelle, accompanying Mr Lewis SM on circuit.

(viii) The Cape York Peninsula, Queensland. Field Report 5, July/August 1979. Report by Bryan Keon-Cohen.

(ix) The Torres Strait Islands, Queensland. Field Report 6, July/August 1979, Report by Bryan Keon-Cohen.

(x) Darwin, Pt Keats and Alice Springs. November/December 1979. Draft report on Alice Springs by Bryan Keon-Cohen.

(xi) Sydney. January/February 1980. Draft Report by Bryan Keon-Cohen and Paul Peters.

(xii) Yirrkala, Groote Eylandt and Darwin, November 198 I. Report by Peter Hennessy.

(xiv) Central Australia, Field Report 7, October 1982. Report by James Crawford, Diane Bell, Peter Hennessy and Alice Tay.

(xv) Eastern Goldfields (WA), Field Report 8, May 1983. Report by Ian Cunliffe and Peter Hennessy.

(xvi) North Queensland, Field Report 9, July 1984, Report by Peter Hennessy and Mary Fisher.

(xvii) Alice Springs, Darwin, Groote Eylandt, Yirrkala, September/October 1985. Peter Hennessy and Mary Fisher.

(I) Papua New Guinea, September 1977. Report by Russell Scott entitled 'The Village Courts of Papua New Guinea'.

(iii) US (Washington, New York), April 1982. On a trip to give a paper at the Annual Conference of the American Society of International Law, Dr Crawford had 3 days of discussions with officials from Government and U.S. Indian organizations.

(iv) Canada, US, September 1983. Professor Crawford attended a conference of the XIth International Congress of Anthropological and Ethnological Sciences: Commission on Folk-Law and Legal Pluralism in Vancouver, and also had discussions in Washington and Ottawa.

Sydney, June 1983
As well as these formal meetings regular contact was maintained with consultants throughout the course of the Reference.

Research Papers
During the initial phase of the reference several papers were prepared as a basis for discussion within the Commission. A number of these did not advance to the stage of publication and distribution for comment. For completeness, a full list of papers written, whether in draft or final form, is set out below:

In January 1982 a comprehensive program was formulated to produce 15 research papers on the major issues which arise in the Reference. The list of research papers is set out below.

Seminar Papers
In the early stages of the Aboriginal Customary Law Reference, a number of seminars were organised to consider the scope and methodology of the Reference. Reports of these seminars are detailed below:

A later seminar was organised jointly by the Law Reform Commission and the Australian Institute of Aboriginal Studies.

1	Mr AR Welsh, PNG	1977
2	Mr NFK O'Neill, PNG Law Reform	10 February 1977
	Commission
3	Commissioner for Community Relations (Hon	11 February 1977
	AJ Grassby)
4	Mr W Clifford, Australian Institute of	17 February 1977
	Criminology
5	Mr LL Davies, Aboriginal Legal Service, WA	17 February 1977
6	Prof WEH Stanner	20 February 1977
		24 February 1977
7	Mr PR Slade	28 March 1977
8	Sergeant M Gilroy, NT Police	10 March 1977
9	Justice JH Wootten, Supreme Court, NSW	15 March 1977
10	Mr PA Hamilton, Victorian Aboriginal Legal	21 March 1977
	Service
11	Justice CF Tallis, Supreme Court of North West	29 April 1977
	Territories, Canada	4 May 1977
12	Mr B Johnston, Aboriginal and Torres Strait	12 May 1977
	Islanders Legal Service, Cairns
13	Commissioner for Community Relations	12 May 1977
	(Hon AJ Grassby - material prepared by Ms L Lippmann)
14	Justice J Toohey, Aboriginal Land	26 May 1977
	Commissioner
15	Australian Mining Industry Council (Mr GP Phillips)	17 May 1977
16	Mr RG Kimber	12 June 1977
		10 July 1977
		19 September 1977
17	Justice WAN Wells, Supreme Court, SA	March 1977
18	Mr TI Pauling, SM, Darwin	June 1977
19	Mr FE Abdullah, Magistrates Association,	30 June 1977
	Kenya
20	Mr J Huelin, Aboriginal Legal Service, WA	6 July 1977
21	Mr S McGill, Northern Land Council	11 July 1977
		24 August 1977
22	Dr K Maddock	31 October 1977
23	Justice I Thompson, Chief Justice, Nauru	19 September 1977
24	Prof RM Berndt	18 October 1977
25	Mr G Eames, Central Land Council	10 June 1977
26	Mr I Barker QC	June 1977
27	Mr TI Pauling, SM, Darwin	June 1977
28	Mr S Jones	June 1977
29	Ms P Gray and Mr R Williams	June 1977
30	Mr G Sargent, Nhulunbuy	14 July 1977
31	Justice J Toohey, Aboriginal Land	23 September 1977
	Commissioner
32	Mr AR Welsh, PNG	30 October 1977
33	Prof TGH Strehlow	14 July 1977
34	Northern Territory Police (Cmr WJ McLaren)	15 July 1977
35	Mr HA Wallwork	22 July 1977
		3 August 1977
36	Mr WH Goudie	I August 1977
37	Mr P Loftus	10 August 1977
38	Ms L Hastwell, North Australian Aboriginal	18 August 1977
	Legal Aid Service
39	Mr I Barker QC	8 September 1977
40	Ambassador B Dexter	28 September 1977
41	Dr N Williams	15 October 1977
42	Mr PA Haslam	19 October 1977
43	Justice JF Fogarty, Family Court	26 October 1977
44	Mr J Goldring	I November 1977
45	Prof B Boettcher	2 November 1977
46	Mr A Chase	3 November 1977
47	Attorney-General's Department (Cth)	7 November 1977
48	Mr N Wallace	7 November 1977
49	Ms M Dyer	16 November 1977
50	Mr WJ Moore	December 1977
51	Mr N Wallace	20 January 1978
52	Ms M Bain	30 January 1978
53	Mr H Picton-Smith, Solicitor-General, Fiji	30 January 1978
54	Mr J Goldring	February 1978
55	Mr N Wallace	3 February 1978
56	Mr A Ligertwood	9 February 1978
57	Mr N Wallace	10 February 1978
58	Ms M Bain	18 February 1978
59	Mr D Hore-Lacy, North Australian Aboriginal	20 February 1978
	Legal Aid Service
60	Ms M Bain	1 March 1978
61	Ms J Skuse	1 March 1978
62	Rev W Douglas, United Aborigines Mission,	4 March 1978
	Kalgoorlie
63	Ms P Ditton, Central Australian Aboriginal	6 March 1978
	Legal Service
64	Mr P Haslam	8 March 1978
65	Prof C Howard	8 March 1978
66	Mrs K Strehlow	10 March 1978
67	Ms S Stacy	13 March 1978
68	Dr K Maddock	12 February 1978
69	Assoc Prof RL Barsh, University of Washington,	17 March 1978
	Seattle
70	Justice TU Tuivaga, Supreme Court, Fiji	20 April 1978
71	Mr AR Welsh, PNG	24 April 1978
72	Fr K McKelson, La Grange	24 April 1978
73	Ms M Dyer	27 April 1978
74	Mr AH Angelo, Victoria University of	28 April 1978
	Wellington, NZ'
75	Mr AD Fenbury, Aboriginal Legal Service, WA	15 May 1978
76	Rev D Belcher, Indulkana	June 1978
		30 June 1978
77	Justice J Toohey, Aboriginal Land	7 June 1978
	Commissioner (enclosed submission from Pt
	Keats community)
78	Mr RD Kimber	7 June 1978
79	Prof TGH Strehlow	8 June 1978
80	Dr N Williams	13 June 1978
81	Fr K McKelson	14 June 1978
82	Justice I Thompson, Chief Justice, Nauru	15 June 1978
83	Commissioner for Community Relations, Cth	19 June 1978
	(Hon AJ Grassby)
84	Prof B Boettcher	5 July 1978
85	Mr CN Perkins, Department of Aboriginal	7 July 1978
	Affairs
86	Prof RM Berndt	11 July 1978
87	Justice J Toohey, Aboriginal Land	13 July 1978
	Commissioner
88	Mr T Griffiths, Department of Aboriginal Affairs	27 July 1978
89	Mr DW McLeod	28 July 1978
90	Northern Territory Police (Supt A Grant)	24 August 1978
91	Mr J Huelin, Aboriginal Legal Service, WA	25 August 1978
92	Mr G Blitner, Northern Land Council	25 August 1978
93	Mr P Coe, Aboriginal Legal Service, Redfern	26 September 1978
94	Mr J Doolan, MLA, NT	28 September 1978
95	Mr M De Graaf	4 October 1978
96	Mr JA Newfong	5 October 1978
97	Justice SJ Jacobs, Supreme Court, SA	6 October 1978
98	Justice T Berger, Canada	6 October 1978
99	Prof DE Sanders, University of British	18 October 1978
	Columbia, Vancouver
100	Prof RM Berndt	24 October 1978
101	Prof KW Ryan	27 October 1978
102	Mr M De Graaf	27 October 1978
103	Canadian High Commission, Canberra	July 1978
		November 1978
104	Mr A Ligertwood	September 1978
105	Dr H Middleton	8 November 1978
106	Mrs K Strehlow	22 November 1978
107	Department of Aboriginal Affairs (Mr BK Thomas)	23 November 1978
108	Mr G Bartholomew	24 November 1978
109	Dr P Sack	29 November 1978
110	Dr P Sack	12 December 1978
111	Mr RD Marika, Yirrkala	14 December 1978
112	Prof S Conn, University of Alaska	19 January 1979
113	Ms F Bandler and Mr J Horner	2 January 1979
114	Dr HC Coombs	2 January 1979
115	Prof G Blainey	8 January 1979
116	Mr MJ Foley	31 January 1979
117	Mr D Scott	I February 1979
118	Hon I Medcalf, Attorney-General, WA	16 February 1979
119	Ms F Bandler and Mr J Horner	20 February 1979
120	Mr J Huelin, Aboriginal Legal Service, WA	7 March 1979
121	Mr J Huelin, Aboriginal Legal Service, WA	1 May 1979
122	Australian Mining Industry Council	March 1979
123	Justice B Nicholson, Chief Justice of Western	11 June 1979
	Samoa
124	Prof H Dagmar, Catholic University, Nijmegen	22 June 1979
125	Mr D Penny, Department of Aboriginal Affairs	3 July 1979
126	Mr G Gleeson, Premier's Department, NSW	27 July 1979
127	Women's Electoral Lobby, Darwin (Ms A	July 1979
	Rebegetz)
128	Dr K Maddock	June, August 1979
129	Dr K Maddock	August 1979
130	Mr C McDonald	28 August 1979
131	Mr G Galvin, CSM, Darwin	5 June 1979
		31 August 1979
132	Mr RD Kimber	8 June 1979
		22 June 1979
133	Dr Betty Meehan	19 June 1979
134	Assistant Commissioner A Grant, NT Police	19 June 1979
135	Mr P Kenyon, Peppimenarti	20 June 1979
136	Prof CD Rowley	3 July 1979
137	Mr Gerry Blitner, Northern Land Council	3 July 1979
138	Ms Winifred Hilliard, Ernabella, NT	13 August 1979
139	Mr M De Graaf	27 August 1979
140	Mr TI Pauling, SM, Darwin	9 November 1979
141	Mrs H L'Orange, International Year of the Child	4 October 1979
	National Committee
142	Mrs B Hocking	20 November 1979
143	Legal Aid Commission, ACT	21 September 1979
144	Northern Land Council (Mr A Palmer)	7 August 1979
145	Mr A Vandenberg	22 August 1979
146	Prof C Tatz	17 September 1979
147	Dr D Craig, Duke University, North Carolina	30 April 1980
148	Mr E Rayment, Aboriginal Land Trust, NSW	19 February 1980
149	Mr D Brown, Department of Aboriginal and	5 February 1980
	Islanders Advancement, Qld
150	Mr RD Kimber	3 February 1980
151	Mr E Rayment, Aboriginal Land Trust, NSW	10 April 1980
152	Mrs K Strehlow	7 January 1980
153	Prof JG Starke QC	24 January 1980
154	Prof RM Berndt	7 May 1980
155	Mrs L Barnes	3 April 1980
156	Br S O'Rourke	13 May 1980
157	Dr HC Coombs	28 May 1980
158	Hon I Medcalf QC, Attorney-General, WA	30 May 1980
159	Mr I Ramsay	1980
160	Prof Colin Tatz	17 June 1980
161	Mr D Barnett, Department of Aboriginal and	9 June 1980
	Islanders Advancement, Lockhart River
162	Mr C McDonald	24 April 1980
163	Chief Justice Sir William Forster, Supreme	24 April 1980
	Court, NT
164	Tasmanian Police (Mr KH Viney)	16 July 1980
165	Mr P Ruddock, MP	27 August 1980
166	Mr J von Sturmer, Australian Institute for	5 June 1980
	Aboriginal Studies	18 June 1980
167	Dr SS Richardson	5 September 1980
168	Mr HT Spicer, SM, Mareeba, Qld	30 July 1980
169	Assistant Commissioner Grant, NT Police	10 June 1980
170	Mr G Robinson, Dept of Law, Darwin	18 August 1980
171	Prof RM Berndt	19 August 1980
172	Dr K Maddock	22 August 1980
173	Mr A Ligertwood	11 September 1980
174	Prof KW Ryan	15 September 1980
175	Dhanbul Assn (Yirrkala)	I October 1980
176	Mr P Killoran, Department of Aboriginal and	8 September 1980
	Islanders Advancement, Qld
177	Mr JPM Long, Department of Aboriginal Affairs	22 August 1980
	(Cth)
178	Chief Justice W Forster, Supreme Court, NT	25 September 1980
179	Justice J Toohey, Aboriginal Land	14 October 1980
	Commissioner
180	Dr SS Richardson	3 & 24 October 1980
181	Attorney-General's Department (Cth)	8 September 1980
182	Mr WR Withers, MLC, WA	28 September 1980
183	South Australian Police	July 1980
184	Department of Community Welfare, SA	21 October 1980
185	Justice J Muirhead, Supreme Court, NT	28 August 1980
186	Victorian Police (Cmr SI Miller)	18 August 1980
187	New South Wales Police (Cmr JT Lees)	21 August 1980
188	Northern Territory Police (Asst Cmr Grant)	23 September 1980
189	Mr W Clifford, Australian Institute of	19 December 1980
	Criminology
190	Prof S Conn, University of Alaska	1980
191	Justice J Toohey, Aboriginal Legal	24 November 1980
	Commissioner
192	North Australian Aboriginal Legal Aid Service	4 February 1981
	(Mr KM Curnow)
193	Chief Justice I Thompson, Chief Justice,	January 1981
	Noumea
194	Mr DW McLeod	23 January 1981
195	Ms D Bell	6 February 1981
196	Mr M Hislop, Department of Aboriginal Affairs	6 February 1981
197	Mr W Lanhupuy, Northern Land Council	17 February 1981
198	Mr M H Milne, Department of Aboriginal	17 February 1981
	Affairs, Peninsula Area Office, Cairns
199	Mr WR Withers, MLC, WA	17 February 1981
200	Victorian Police	23 February 1981
201	Mr G Tongerie, Department for Community	16 January 1981
	Welfare, Adelaide
202	Prof RM Berndt	3 February 1981
203	Mr M Jennings, Attorney-General, Kiribati	18 February 1981
204	Mr LM Kenney, JP, Ballina	12 February 1981
205	Mr P Peters, Nijmegen, Holland	18 February 1981
206	Mr RD Kimber	28 February 1981
207	Mr DW McLeod	12 March 1981
208	Mr P Roberts	5 March 1981
209	Mr R Santen, Giles, WA	10 January 1981
210	Mr B Kramer, Mimili, NT	15 January 1981
211	Mr J Baker, Department of Aboriginal Affairs,	3 February 1981
	Bunbury
212	Mr M Hislop, Department of Aboriginal Affairs	6 February 1981
213	Mr BG Lindner	10 February 1981
214	Commissioner for Community Relations (Hon	11 February 1981
	AJ Grassby)
215	Mr Michael Steuart	14 February 1981
216	Northern Territory Police (Cmr McAulay, Asst	19 February 1981
	Cmr Grant)
217	Justice H Zelling, Supreme Court, SA	5 December 1980
218	Assoc Prof Getches, Uni of Colorado	22 January 1981
219	Mr FJ Gormly QC	11 February 1981
220	Mr HL Ayling SM, Gunnedah, NSW	2 March 1981
221	Fr MJ Wilson, Santa Teresa	14 March 1981
222	Mr M Posa, National Civic Council, SA	17 March 1981
223	Prof S Conn, University of Alaska	10 January 1981
224	Hon J Kennett, Minister Responsible for	February, March
	Aboriginal Affairs, Vic	1981
225	Judge R Grubb, Licensing Court, SA	23 March 1981
226	Mr DW McLeod	28 March 1981
227	Dr MM Brandl	25 February 1981
228	Dr T Gavranic	24 February 1981
229	Mr DW McLeod	29 March 1981
230	Mr N Wallace	1 April 1981
231	Mr DJ Sivewright	24 March 1981
232	Hon H Allison, Minister for Aboriginal Affairs,	31 March 1981
	SA
233	Dr S Roberts, University of London	6 April 1981
234	New South Wales Police (Asst Cmr Abbott)	2 April 1981
235	Mr RD Blackmore, Senior Special Magistrate,	16 April 1981
	Sydney
236	Mr G McIntyre, Aboriginal and Torres Strait	7 April 1981
	Islanders Legal Service, Cairns
237	Tasmanian Aboriginal Centre (S Clark)	10 April 1981
238	Mr S Brumby, Peppimenarti	11 April 1981
239	Mr DW McLeod	14 April 1981
240	Mr A B Pittock	16 April 1981
241	Mr DW McLeod	17, 19 and 21
		April 1981,
		17 May 1981
242	Mrs BM MacIntyre	23 April 1981
243	Mr GS Coulthard, President Davenport Council,	18 April 1981
	Pt Augusta
244	Mr J Hocknull	21 April 1981
245	Department of Aboriginal Affairs (Cth) (Mr JPM	26 April 1981
	Long)
246	Department for Community Welfare, Port	18 March 1981
	Augusta, SA (Mr DL Busbridge)	8 April 1981
247	Maori Women's Welfare League, Perth	20 March 1981
		8 June 1981
248	Mrs E Bruen	20 March 1981
249	Mr R Bropho, Aboriginal Fringedwellers, Swan	24 March 1981
	Valley
250	Peppimenarti Community, NT	6 April 1981
251	Mr TM Irelandes	8 April 1981
252	United Aborigines Mission, Perth	9 April 1981
253	Kowanyama Community, Qld	15 April 1981
254	Aboriginal Treaty Committee (Dr HC Coombs)	16 April 1981
255	Mr M Martin, Ventnor, New Jersey, USA	21 April 1981
256	Ms Elizabeth Harper, Angurugu, NT	21 April 1981
257	Moiyunda Association, Mornington Island	23 April 1981
258	SA Police (Asst Cmr Giles)	24 April 1981
259	Dr J Crawford	27 April 1981
260	Mrs V McCallum	27 April 1981
261	Quaker Race Relations C'ttee (Ms E Edwards)	28 April 1981
262	Dr HC Coombs	29 April 1981
263	Justice JA Miles, PNG Supreme Court	29 April 1981
264	Mr D Hope, Aboriginal Task Force, SAIT	30 April 1981
265	ACT Young Liberals (Ms B Matijevic)	I May 1981
266	Mr D Vachon, Pitjantjatjara Council	1 May 1981
267	Energy Resources of Aust (Mr BG Fisk)	4 May 1981
268	Dr Goodwin - Gill, UN Commissioner for	4 May 1981
	Refugees (and Dr Hugo Idoyaga)	18 May 1981
269	Rev J Whitbourn, Warrabri, NT	5 May 1981
270	Mr HH Marshall, British Institute of	5 May 1981
	International & Comparative Law
271	Judge J Lewis, District Court, SA	5 May 1981
272	Mossman Gorge Community, Qld	6 May 1981
273	Mr W Goss & Mr B Harrison	7 May 1981
274	Mr AJ Cannon, SM, Elizabeth, SA	8 May 1981
275	Mr WJ Faulds, Crown Counsel, Tas	8 May 1981
276	Women Lawyers Association NSW (Ms D Maclean)	11 May 1981
277	Hon Haddon Storey, QC, Attorney-General,	11 May 1981
	Victoria enclosing submission by Mr G
	Golden, Attorney-General's Department
278	Fr FS Newbecker, Edward River	May 1981
279	Dr KR Makinson	14 May 1981
280	Mr JL Smith	May 1981
281	Prof DHN Johnson	15 May 1981
282	Aboriginal Children's Research Project, NSW	15 May 1981
	(Mr C Milne)
283	Victorian Aboriginal Legal Service	20 May 1981
284	Mr K Palmer, Western Desert Project, SA	May 1981
285	Mr David Filmer	16 May 1981
286	Mrs PA Gardiner	20 May 1981
287	Fr MJ Wilson, Santa Teresa	20 May 1981
288	Department of Community Welfare Services, Vic	20 May 1981
	(Ms Firebrace)
289	Mr S Murray, Dandenong and District	27 May 1981
	Aborigines Co-op
290	Ms R Bishop	27 May 1981
291	Mr G Gierz	28 May 1981
292	Dr NN Singh	29 May 1981
293	Office of Women's Affairs (Ms K Taperell)	29 May 1981
294	Ms B Hoffman, Mr K Ryan, Ms H van der Schaff	29 May 1981
295	Mr P Haslam	15 June 1981
296	Tasmanian Police (Cmr MJ Robinson)	16 June 1981
297	Mr DL Busbridge, Dept for Community	21 May 1981
	Welfare, SA
298	Mr Nipper Tabagee, Noonkanbah	3 June 1981
299	Human Rights Bureau (Cth) (Mr PH Bailey)	5 June 1981
300	Prof JG Starke QC	5 May 1981
301	Queensland Law Society (Sub-Committee	22 June 1981
	established to consider Aboriginal
	Customary Law Reference)
302	Prof IA Shearer	23 June 1981
303	Women's Advisory Council, NSW (Ms J Owen)	16 June 1981
304	Mr G Tambling, MHR, NT	18 June 1981
305	Director General of Social Security, (Cth) (Mr	19 June 1981
	AJ Ayers)
306	Dr HC Coombs	14 July 1981
307	Mr M De Graaf	14 July 1981
308	Central Australian Aboriginal Legal Aid Service	21 July 1981
	(Ms P Ditton)
309	Mr W Bird, National Aboriginal Conference	28 July 1981
310	Mr Lupton	21 July 1981
311	Ms BH Palmer	28 August 1981
312	Mr P Jovanovic	2 November 1981
313	Mr RS O'Regan	23 November 1981
314	Mr SK Jerrard, Action for Aboriginal Rights	2 December 1981
315	Department of Aboriginal Affairs (Mr JPM	21 January 1982
	Long)
316	Assistant Commissioner A Grant (NT Police)
317	Prof RM Berndt	8 March 1982
318	Justice Elizabeth Evatt, Chief Judge, Family	8 March 1982
	Court of Australia
319	Mr, CA Ratcliffe	15 March 1982
320	Justice RA Blackburn, Chief Judge, Supreme	5 January 1982
	Court, ACT	5 April 1982
321	Department of Aboriginal Affairs, Darwin (Mr	15 March 1982
	LG Wilson)	27 March 1982
322	National Society of Labor Lawyers, (Ms D	5 April 1982
	Merryfull)
323	Sir William Forster, Chief Justice, Supreme	7 April 1982
	Court, NT
324	Department of Law, NT (Mr JG Flynn)	16 April 1982
325	Northern Territory Public Trustee	16 April 1982
326	President, Workmen's Compensation Tribunal,	29 April 1982
	NT
327	Commissioner for Employees Compensation	3 May 1982
	(Cth) (Mr BJ Dwyer)
328	Mr R Keating, North Australian Aboriginal	10 May 1982
	Legal Service
329	Department of the Chief Minister, NT (Mr EG	12 May 1982
	Quinn)	17 May 1982
330	Northern Territory Insurance Office	13 May 1982
331	Hon J Robertson, Minister for Community	18 May 1982
	Development, NT
332	Ms P Ditton	20 May 1982
333	Department of Social Security (Cth)	20 May 1982
334	Fr MJ Wilson, Nelen Yubu Missiological Unit	25 May 1982
335	Hon J Burdett MLC, Minister for Community	27 May 1982
	Welfare, SA
336	Mr D Ahenakew, National Chief, Assembly of	2 June 1982
	First Nations, Canada
337	Office of Women's Affairs (Cth) (Ms K Taperell)	22 July 1982
338	Dr D Bell	July 1982
339	Office of Aboriginal Liaison, NT (Mr JD	30 July 1982
	Gallacher)
340	Department of Social Security (Cth) (Mr JT	4 August 1982
	O'Connor, Mr D Hall)	17 August 1982
341	Hon Terry White, Minister for Welfare Services,	17 August 1982
	Qld
342	Department of Social Security, Darwin (Mr PJ	26 August 1982
	Marts)
343	Ms P Ditton	2 September 1982
344	Commissioner for Community Relations (Hon	6 September 1982
	AJ Grassby)
345	Ms H Cory	September 1982
346	Human Rights Commission (Mr PH Bailey)	September 1982
347	Hon Pauline Toner, Minister for Community	10 September 1982
	Welfare Services (Vic)
348	Dept of Capital Territory (Mr AS Blunn)	24 September 1982
349	South Australian Police	24 September 1982
350	Mr J Kimpton	28 September 1982
351	Mr D Collins MLA, NT	I October 1982
352	Mr N Wallace	4 October 1982
353	Justice SJ Jacobs, Supreme Court, SA	6 October 1982
354	Ms B Pearce	11 October 1982
355	Mr G Tambling MHR, NT	11 October 1982
356	Mr W Clifford, Australian Institute of	12 October 1982
	Criminology
357	Mr J Zion, Solicitor, Navajo Nation	9 November 1982
358	Law Society of New South Wales	16 November 1982
359	Prof DHN Johnson	29 October 1982
360	Dr A Sunder Das	7 November 1982
361	Minister for Social Security (Cth) (Hon FM	15 November 1982
	Chaney)
362	Mr J Tomlinson	25 November 1982
		January 1983
363	Human Rights Commission (Mr PH Bailey)	7 December 1982
364	Mr RG Kimber	15 December 1982
365	Dept of Community Welfare, SA (Mr I Cox)	17 December 1982
366	Justice JA Nader, Supreme Court, NT	17 December 1982
367	Mr C Lamb, Department of Foreign Affairs	30 December 1982
368	Federation of Aboriginal Women	10 January 1983
369	Justice H Zelling, Supreme Court, SA	26 January 1983
370	Department of Aboriginal Affairs (Mr JC Taylor)	2 February 1983
371	Ms M Brady	9 February 1983
372	Dr P Sutton	16 March 1983
373	Mr G Neate	9 April 1983
374	Assoc Prof B Morse and Mr R Chisholm	17 January 1983
375	Assoc Prof R Barsh, University of Washington,	10 May 1983
	Seattle
376	Fr K McKelson	21 May 1983
377	Mrs G Smalley	21 May 1983
378	Mr H Wallwork QC	2 June 1983
379	Mr N Bourne MP, PNG	15 June 1983
380	Mr R Chisholm	June 1983
381	Ms J Tommy	14 July 1983
382	Miss D Ross	15 July 1983
383	Dr J yon Sturmer	25 July 1983
384	Mr J Wauchope, Department of Aboriginal	25 July 1983
	Affairs (Cth)
385	Mr B Keon-Cohen	31 August 1983
386	Dr SM Poulter, University of Southhampton	10 October 1983
387	Mr J Taylor	21 May 1983
388	Mr J Taylor	11 October 1983
389	Mr B Keon-Cohen	17 October 1983
390	Mr N Andrews, Central Land Council	31 October 1983
391	Mr J Kimpton	7 November 1983
392	Mr RG Kimber	12 April 1983
		12 November 1983
393	Family Law Council (Justice JF Fogarty)	28 November 1983
394	Attorney-General's Department (Cth) (Mr JM	4 January 1984
	Hunter)
395	Central Australian Aboriginal Legal Aid Service	10 January 1984
	(Ms P Ditton)
396	Dr P Sutton	29 November 1983
		18 January 1984
397	Assoc Prof K Maddock	7 February 1984
398	Mr C McDonald, North Australia Aboriginal	20 February 1984
	Legal Aid Service
399	Mr G Woodman, University of Birmingham	February 1984
400	Dr P Sack	24 February 1984
401	Mr N Wallace	27 February 1984
402	Dr O Jessep	8 March 1984
		13 March 1984
403	Dr J von Sturmer	February &
		March 1984
404	Mr JR Goudie, Department of Indian &	8 February 1984
	Northern Affairs, Canada
405	Dr HC Coombs	15 March 1984
406	Office of Child Care, Department of Social	23 March 1984
	Security (Cth)
407	Mr J Richstone, Inuit Committee on National	29 March 1984
	Affairs, Canada
408	Prof RM Berndt	3 April 1984
409	Assoc Prof D Case, University of Alaska	13 April 1984
410	Assoc Prof R Barsh, University of Washington,	18 April 1984
	Seattle
411	Justice WJ Kearney, Aboriginal Land	19 March 1984
	Commissioner	I May 1984
412	Dr P Sutton	27 April 1984
413	Mr Y Bamwine	30 April 1984
414	Assoc Prof K Maddock	May 1984
415	Mr B Kissane, Victorian Aboriginal Legal Service	9 May 1984
416	Director General, Department of Community	9 May 1984
	Welfare Services, Victoria
417	Northern Land Council (Ms J Thompson)	16 May 1984
418	Mr Greg James QC	21 May 1984
419	Attorney-General, Northern Territory (Hon J	17 May 1984
	Robertson)
420	Justice J Muirhead, Supreme Court, NT	18 May 1984
421	Fr K McKelson, La Grange	20 May 1984
422	Mrs M Hilton	12 April 1984
423	Justice WJ Kearney, Aboriginal Land	31 May 1984
	Commissioner
424	Dept of Community Welfare, WA (Mr K Maine)	I June 1984
425	Minister for Aboriginal Affairs Queensland (Hon	4 June 1984
	RC Katter)
426	Mrs K Hazlehurst, Australian Institute of	7 June 1984
	Criminology
427	Minister for Aboriginal Affairs, NSW (Hon G	29 June 1984
	Paciullo)
428	Mr R Oades	18 June 1984
429	Department of Lands & Surveys, WA (Mr BL	19 June 1984
	O'Halloran)
430	Conservation Commission, NT (Mr B Singer)	29 June 198
431	Mrs M Hilton	July 1984
432	Department of Chief Minister, NT (Mr P	3 July 1984
	Carroll)
433	Dr J Altman	9 July 1984
434	Mr RE Johannes	9 July 1984
435	Assoc Prof N Bankes, University of Calgary,	19 July 1984
	Alberta
436	Hon RC Katter, Minister for Northern	25 July 1984
	Development and Aboriginal and Islander
	Affairs, Qld
437	Dr HC Coombs	31 July 1984
438	Mr RG Kimber	20 March 1984
		18 August 1984
439	Mr M Harris, Department for Community	8 June 1984
	Welfare, SA
440	Assoc Prof R Barsh, University of Washington,	4 August 1984
	Seattle
441	Miss D Ross	8 August 1984
442	Department of Aboriginal Affairs (Mr P	16 August 1984
	MacKenzie)	3 September 1984
443	Justice J Toohey, Federal Court of Australia	23 August 1984
444	Assoc Prof B Morse, University of Ottawa,	27 August 1984
	Ontario
445	Mr V Haysom, Nova Scotia, Canada	30 August 1984
446	Conservator of Wildlife, Department of	30 August 1984
	Fisheries and Wildlife, WA (Mr I Crook)
447	Mr A Smith	2 September 1984
448	Ms J Devitt, Bureau of the Northern Land Council	3 September 1984
449	Professor RM Berndt	11 September 1984
450	Hon DC Frith, Minister for Indian Affairs and	31 August 1984
	Northern Development, Canada
451	Mr M De Graaf	13 September 1984
452	National Parks & Wildlife Service, Queensland	25 September 1984
	(Mr HS Curtis)
453	Mr A Gray, International Work Group for	7 July 1984
	Indigenous Affairs, Denmark
454	Minister for Aboriginal Affairs (Cth) (Hon C	26 September 1984
	Holding)
455	Mr AJ Murray, Parliamentary Counsel,	28 May 1984
	Queensland
456	Mr M Sides	1 June 1984
457	Mrs B Hocking	25 September 1984
458	Mr N Wareham, Attorney-General's Department	24 September 1984
	(Cth)
459	National Police Working Party	18 September 1984
460	Mr G Moisan, SAGMAI, Government of Quebec	4 October 1984
461	National Police Working Party	13 November 1984
462	Dr J von Sturmer	4 December 1984
463	Mr P Griffin	5 December 1984
464	Dr P Sutton	13 December 1984
465	Ms P Ditton	1 January 1985
466	Ms C Baldwin, Great Barrier Reef Marine Park	11 January 1985
	Authority
467	National Parks Wildlife, NSW (Mr DA Johnstone)	6 February 1985
468	Mr GS Lester	19 February 1985
469	Assoc Prof K Maddock	12 March 1985
470	Dr O Jessep	14 March 1985
471	Dr J MacPherson, Dept of Justice, Saskatchewan	6 March 1985
472	Mr GS Lester	19 February 1985
473	Bureau of the Northern Land Council (Ms J	23 July 1985
	Thomson)
474	Mr PG McHugh	12 March 1985
475	Dr O Jessep	26 March 1985
476	National Farmers Federation	11 April 1985
477	Mr S Mam, National Aboriginal Conference, Qld	17 April 1985
478	Assoc Prof K Maddock	24 April 1985
479	Mr R Jingle, Weipa South	30 April 1985
480	Yarrabah Community Council (Mr BC Barlow)	7 May 1985
481	Ms L Roberts, Cabinet Sub-Committee on	29 May 1985
	Aboriginal Police and Community Relations, WA
482	Dr HC Coombs	5 June 1985
483	Hon K Wilson, Minister with Special	5 June 1985
	Responsibility for Aboriginal Affairs, WA
484	Hon K Wilson, Minister with Special	5 June 1985
	Responsibility for Aboriginal Affairs, WA
485	Mr R Butler, Nomads Group, Strelley	23 July 1985
486	Mr PB Keris, Village Courts Secretariat, PNG	14 August 1985
487	Assoc Prof B Morse, University of Ottawa,	15 August 1985
	Ontario
488	Mr L Lucas, Department of Justice, PNG	29 August 1985
489	Dr P Sutton, SA Museum	10 September 1985
490	Mr JPM Long, Commissioner for Community	12 September 1985
	Relations
491	Dr D Bell	16 September 1985
492	Ms L Roberts, Secretary, Special Cabinet	21 August 1985
	Committee on Aboriginal Police &
	Community Relations, WA
493	Mr D de Yong, Department of Social Welfare,	August 1985
	Alberta
494	Mr R Chisholm	29 August and
		14 September 1985
495	Dr N Williams, on Behalf of Yolngu Clan	25 September 1985
	leaders, Yirrkala
496	Ms KM Hazlehurst, Australian Institute of	1 October 1985
	Criminology
497	Mrs A Nelson Napururla and Mrs B Nabarula	7 October 1985
498	Department of Habours and Marine,	25 October 1985
	Queensland (Mr J Leech)
499	Mr D Hore-Lacy	14 November 1985
500	Mr C Loorham, Central Australian Aboriginal	19 November 1985
	Legal Aid Service
501	Fisheries Department, WA (Mr P Rogers)	9 January 1986
502	Mr RE Johannes, CSIRO	7 January 1986
503	Professional Association of Applied	20 January 1986
	Anthropology and Sociology, WA
504	National Police Working Party	31 January 1986
505	Department of Lands, South Australia (WJ	13 February 1986
	Edwards)
506	Department of Aboriginal Affairs (Cth) (Mr P	13 March 1986
	Gulliver)

	Para
A, Re(1984) [1983] FCA 77; 19 SSR 199	388
Abbott v R [1977] AC 755	428
Abdul Hussein Khan v Bibi Sona Dero (1917) 45 IA 10	618
Abdullah v O'Meara, unreported, WA Supreme Court, Appeal No 44 of 1979	551
Acting Public Prosecutor v Nitak Manglilonde Taganis of Tampitanis [1982]
PNGLR 299	405, 614, 620
Adcock v Puttaburra, ex parte Puttaburra, unreported. Queensland Supreme Court,
Townsville QSC No 6 of 1984, 21 November 1984	728, 736
Adolf v Austria (1982) ECHR Ser A vol 49	807
Ahmad Khan v Channi Bibi (1925) 52 IA 379	618
A1 Halidi, Re (1985) ASSC 92-044	389
Alderson v Northern Land Council (1983) 20 NTR 1	765
Aljahi Mohamed v Knott [1969] I QB I	319
Allen v Snyder [1977] 2 NSWLR 685	288
Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399	204, 900
Angu v Attah (1916) Gold Coast Privy Council Judgments (1874-1928) 43	619, 639
Attorney-General for the Commonwealth v The Queen (1957) CLR 529	808
Attorney-General of Canada v Canard (1975) 52 DLR (3d)548	141,158
Attorney-General of Canada v Lavell (1973) 38 DLR (3d) 481	140, 141,142, 151,155, 191
Attorney-General of Nigeria v John Holt and Co (Liverpool Ltd) [1915] AC 599	900
Attorney-General of Quebec v Attorney-General of Canada (1921) I AC 40 1	900
Attorney-General of Victoria v Commonwealth [1962] HCA 37; (1961) 107 CLR 529	1019
Attorney-General of Victoria v Commonwealth [1975] HCA 52; (1975) 134 CLR 338	1019
Attorney-General and Black v Commonwealth (I 981) [1981] HCA 2; 55 ALJR 155	1020
Attorney-General of Victoria v Public Trustee,.ex parte Hillerbrand, unreported,
Full Supreme Court of Victoria, 23 October 1970.	89
Attorney-General of Western Samoa v Saipa'ia Olomalu, unreported, Western
Samoa Court of Appeal, 26 August 1982	84
Attorney-General v Leveller Magazine Ltd [1979] AC 440	653
Attorney-General's Reference No 6 of 1980 [1981] EWCA Crim 1; [1981] 1 QB 715	502
Australian Broadcasting Tribunal; ex parte Hardiman, R v (1980) 144 CLR 13	647
Australian Telecom Commission v Hart [1982] FCA 185; (1982) 43 ALR 165	157
B, Re (1984) 22 SSR 246	388
Bagot's Executor and Trustee v King [1948] SAStRp 1; [1948] SASR 141	653
Baker v Campbell [1983] HCA 39; (1983) 49 ALR 385	659
Barcelona Traction Case (Second Phase) ICJ Rep 1970 3	147
Barton v R [1980] HCA 48; (1980) 32 ALR 449	579
Bashir Begum Bibi v R (1980) 71 Cr App R 360	529
Bedder v DPP [1954] 2 All ER 801	72,421,422, 423,424
Belgian Linguistics Case ECHR Set A No 6 (1968)	147
Bernasconi v R [1915] HCA 13; (1915) 19 CLR 629	808
Blunt v Park Lane Hotel Ltd [1942] KB 253	662
Board of County Commissioners v Seber [1943] USSC 101; 318 US 705 (1943)	135
Borowski v Quayle [1966] VicRp 54; [1966] VR 382	634
Boyle v Wiseman [1855] EngR 110; (1885) 10 Ex 647	664
Brakenridge, Re(1983) 15 SSR 152	388
Bravery v Bravery [1954] I WLR 1169	502
Bryant v Foot (1868) LR 3 QB 497	62
Bryning, Re [1976] VicRp 8; [1976] VR 100	89
Buckoke v Greater London Council [1971] Ch 655	474
Burton, In the Marriage of [1918] ArgusLawRp 100; (1978) 24 ALR 378, 383	350
Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145	63, 895, 900, 902
Caldwell v DPP [1982] UKHL 1; [1982] AC 341	416
Calvin's Case (1608) 7 Co Rep la, 77 ER 377	67
Campbell and Cosans Case ECHR Set A Vol 59 (1982)	189, 190
Campbell v Arnold (1982) 13 NTR 7	936, 977
Case concerning Minority Schools in Albania PCIJ Ser A/B No 64 (1935)	148
Censori v R [1983] WAR 89	424
Cherokee Nation v Georgia 30 US I (1831)	134
Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486	630
Clarke v Karika, unreported, Court of Appeal of the Cook Islands, 25 February 1983	145
Cleland v R [1982] HCA 67; (1983) 57 ALJR 15	544
Coe v Commonwealth of Australia (1978) 18 ALR 592	67
Coe v Commonwealth of Australia [1979] HCA 68; (1979) 24 ALR 118	60, 63, 64, 900
Coe v Gordon [1983] 1 NSWR 419	25, 78
Coleman v Shang [1961] AC 481	259
Collins v R [1980] FCA 72; (1980) 31 ALR 257	554, 570
Commonwealth of Australia v Hospital Contribution Fund of Australia (1982) 40
ALR 673	808
Commonwealth of Australia v Tasmania [1983] HCA 21; (1983) 46 ALR 625	92, 95, 151, 197, 1003, 1013-18
Connelly v DPP [1964] AC 1254	475
Connors v Douglas (1981) 7 FamLR 360	351
Cooper v Stuart (1889) 14 App Cas 286	64, 66
Corbett, Re (1984) ASSC 92-019	311
Coulthard v Steer (1981) 12 NTR 13	554, 566
Coxhead v Mullis (1878) 3 CPD 439	249
Crow Dog, Ex parte [1883] USSC 252; 109 US 556 (1883)	404, 784
DLL and CLL, Minors, In re 291 NW (2d) 278 (1980)	137, 356
Dairy Farmers Co-operative Milk Co v Acquilina [1963] HCA 59; (1963) 109 CLR 458	597
Daniel v Belton (1968) 12 FLR 101	402
Daniels v R [1968] SCR 517	474
Darrington v R [1980] VicRp 36; [1980] VR 353	428
Day v Collins [1924] NZGazLawRp 133; [1925] NZLR 280	336
Deborah, Kitchooalik and Enooyak, Re v Tucktoo [1972] 3 WWR 194; [1972] 5
WWR 203	240, 384
Desmond Gorey, R v unreported, Northern Territory Supreme Court, 20 June 1978	508
Din v National Assistance Board [1967] 2 QB 213	259
Director of Public Prosecutions v Camplin [1978] AC 705	72, 424, 425, 427, 428
Director of Public Prosecutions v Humphreys [1977] AC I	475
Director of Public Prosecutions v Lynch [1975] I All ER 913	428
Director of Public Prosecutions v Morgan [1975] UKHL 3; [1976] AC 182	416
Director of Public Prosecutions v Newbury [1976] UKHL 3; [1977] AC 500	416
Director of Public Prosecutions v Smith [1965] AC 290	416
Ditcham v Worrell (1880) 5 CPD 410	249
Dixon v Davies (1982) 17 NTR 31	73
Dixon v McCarthy [1975] I NSWLR 617, 641	552
Douglas v Longano [1981] HCA 18; (1981) 55 ALJR 352	271
Dowling v Director-General of Social Services (1982) 4 ALD 443	388
Dudgeon Case ECHR Set A Vol 48 (1981)	188, 190, 192
Elk v R (1980) 114 DLR (3d) 137	896
English Exporters Pty Ltd v Eldonwall [1973] I Ch 415	634
Eshugbayi Eleko v Officer Administering the Government of Nigeria [1931] UKPC 37; [1931] AC 662	619, 642
F v Langshaw (1983) 8 FamLR 832	351
F, In the matter of; McMillen v Larcombe [1976] NTJud 9; (1976) NTJ 1001	351
Fagan, In re (1980) 23 SASR 454	244, 259, 296
Filios v Morland (1963) 63 SR (NSW) 331	597
Fisher v Rosebud District Court [1976] USSC 55; 424 US 382 (1976)	135
Foster v Mountford & Rigby Limited (1976) 14 ALR 71	468
Fountain v Alexander [1982] HCA 16; (1982) 40 ALR 441	377
Friday v R (1985) 14 A Crim R 471	510, 532, 533
Fronan, Re (1973) 33 DLR (3d) 676	141
Fry v Jennings (1983) 25 NTR 19	554, 602
Fullilove v Flutznick [1980] USSC 150; 448 US 448 (1980)	133
Garurudhwaja Parshad Singh v Saparandhwaja Parshad Singh (1900) 27 IA 238	62
Gerhardy v Brown (1983) 49 ALR 169	153
Gerhardy v Brown [1985] HCA 11; (1985) 57 ALR 472	129, 153, 155, 157, 171,182, 522, 1035
Gibson v Brooking [1973] WAR 70	558
Gilmiri, R v, unreported, Northern Territory Supreme Court, 21 March 1979	505, 510
Gissing v Gissing [1970] UKHL 3; [1971] AC 886	288
Gordon v R (1982) 41 ALR 64	634
Gouge, In the marriage of (1984) 54 ALR 513	351,367
Grant v Borg [1982] 1 WLR 638	434
Grant v Downs [1976] HCA 63; (1976) 11 ALR 577	659
Grantham v Thomas, unreported, South Australian Supreme Court, No 2808 of 1980	550
Gray v United States [1968] USCA9 250; 394 F 2d 96 (1968)	136
Gronow v Gronow [1979] HCA 63; (1979) 29 ALR 129	351
Gudabi v R [1984] FCA 16; (1984) 52 ALR 133	554, 561,568, 599
Guerin v R [1984] 6 WWR 481	63, 895, 900
H v Schering Chemicals [1983] I All ER 849	634
HM Advocate v Watson (1885) 13 SC(J) 6	319
Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3d) 513	63, 895, 900
Handyside Case ECHR Set A Vol 24 (1976)	190
Harrison, In the marriage of [1978] FamCA 5; (1979) 18 ALR 689	374
Hepworth v Hepworth (1959) 110 CLR 309	283
Herbert, Sampson & Wurrawilya v R [1982] FCA 147; (1982) 42 ALR 631; (1983) 23 NTR 22; (1984) 52 ALR 542	157, 438, 519 522, 589
See also R v Sampson, Herbert and Wurrawilya
Holmes v DPP [1946] AC 588	421
Hoskyn v Commissioner of Police for the Metropolis [1978] 2 All ER 136	313
Hyde v Hyde (1866) 1 LR P & D 130	234, 235
Isaac v R (1975) 13 NSR (2d) 460	896
Jabanardi v R (1983) 22 NTR I	581
Jack v R (1979) 100 DLR (3d) 193	896, 979, 988
Jackie Jamieson v R, unreported, Western Australian Supreme Court, 7 April 1965	505
Jacky Anzac Jadurin v R [1938] ArgusLawRp 53; (1982) 44 ALR 424	496, 497, 513, 624, 654
Jamieson v Jamieson (1913) 30 WN (NSW) 159	653
Johns v Director-General of Social Security (1985) ASSC 92-054	311
Johnson v Mcintosh (1923)8 Wheaton 543	900
Johnson v R [1976] HCA 44; (1976) 11 ALR 23	424, 425
K v H (1967) 11 FLR 34	274
K, In re [1965] AC 201	655
Kaporonovski v R [1973] HCA 35; (1973) 133 CLR 209	417, 421
Keeble v United States [1973] USSC 117; 412 US 205 (1973)	136
Kennerly v District Court [1971] USSC 8; 400 US 423 (1971)	783
Kian v Mirro Aluminium Co 88 FRD 351 (1980)	675
Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 39 ALR 417	151, 152, 1013, 1016-18
Kruger and Manuel v R (1977) 34 CCC (2d) 37	896
Kumar v Immigration Department [1978] 2 NZLR 553	474
Kwaku Mensah v R [1946] AC 83	422
Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132	1019
Larry v R, The Register (Sydney) 15, 28 November 1846	45
Lau v Nichols [1974] USSC 14; 414 US 563 (1974)	150
Lazard Bros & Co Midland Bank Ltd [1933] AC 289	631
Le Case de Tanistry (1608) Davis 28	62
Le-Mesurier v Connor (1929)42 CLR 481	374, 808
Lesiw v Commissioner of Succession Duties (1979) 20 SASR 481	244
Lewis v Trebilco [1984] FCA 93; (1984) 53 ALR 581	157
Lovelace Case, GAOR, A/36/40, Annex XVIII (1981)	175-6, 191, 192
Luder v Luder (1963) 4 FLR 292	631
Lutzke, In the marriage of (1979) FLC 690-714	244
MD v McKinlay (1984) 31 NTR I	554
McClanahan v Arizona [1973] USSC 66; 411 US 164 (1973)	786
McDermott v R (1948) 76 CLR 501	544
McEwan v R (1979) I A Crim R 242	416
McKellar v Smith [1982] 2 NSWLR 950	546, 552
Mabo v Queensland and Commonwealth, High Court of Australia, pending	63, 64, 901
Mackay v R (1980) 114 DLR (3d) 393	130, 142, 168
Mahlikilili Dhalamari v R [1942] AC 583	670
Mamote-Kulang of Tamagot v R [1964] HCA 21; (1964) 111 CLR 62	417
Mangrove Restaurant Case [1970] Crim L Rev 155	593
Marckx Case ECHR Set A Vol 31 (1979)	190
Marriage Act Case, see Attorney-General for Victoria v Commonwealth
Martin v Martin (1964) 116 CLR 297	283
Melinda Twobabies, In re, unreported, Oklahoma District Court, 1979	137, 356
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141	40, 58, 62, 63, 64, 67, 100, 101,204 615, 625, 632, 633, 635, 638, 639, 640, 641,642, 900, 902, 903
Mirror Newspapers Ltd v Waller [1985] 1 NSWLR 1	653
Moffa v R [1977] HCA 14; (1977) 13 ALR 225	72, 424, 425
Morgentaler v R (1975) 53 DLR (3d) 161	430
Morton v Mancari [1974] USSC 132; 417 US 535 (1974)	135, 136, 137, 158, 160
Moses Mamarika v R [1982] FCA 94; (1982) 42 ALR 94	496, 510, 511, 512, 614, 624
Mraz v R [1955] HCA 59; (1955) 93 CLR 493	417
Munro v Sefton, unreported, Western Australian Supreme Court (No 38 of 1974)	581
Muramats v Commonwealth Electoral Officer (WA) [1923] HCA 41; (1923) 32 CLR 500	89
Murphyores Pty Ltd v Commonwealth (1976) 136 CLR I	1003
Murray Meats (NT) Pty Ltd v Northern Territory Planning Authority [1983] FCA 105; (1982) 18 NTR 13; (1983) 48 ALR 188	157, 915
Murray v Heggs (1980) 6 Fam LR 781	288
Namatjira v Raabe [1959] HCA 13; (1959) 100 CLR 664	25
Napaluma v Baker (1982) 29 SASR 192	73, 632
Nationwide Publishing Pty Ltd v Furber, unreported, Federal Court of Australia, 13 April 1984	468, 641
Newell v R (1980) 71 Cr App R 331	426
Ng Ping On v Ny Choy Fung Kum (1963) 63 SR (NSW) 782	237
Ngatayi v R [1980] HCA 18; (1980) 54 ALJR 401	393, 415, 582, 583
O'Connor v R [1923] ArgusLawRp 94; (1980) 29 ALR 449	438
Oliphant v Suquamish Indian Tribe [1978] USSC 34; 435 US 191 (1978)	404, 785
Ong Ah Chuan v Public Prosecutor [1981] AC 648	84
Onus & Frankland v Alcoa of Australia Ltd [1981] HCA 50; (1981) 36 ALR 425	78
Ostrofski, In the marriage of (1979) FLC 690-714	244
Pallante v Stadiums Pty Ltd (No 1) [1976] VicRp 29; [1976] VR 331	502
Pappajohn v R (1980) 111 DLR (3d) I	416
Parker v R [1963] HCA 14; (1963) 111 CLR 610	416
Parker v R [1964] UKPCHCA 1; (1964) 111 CLR 665	416
Parkin v Norman [1982] 2 All ER 583	464
Pearce v Cocchiaro (1977) 14 ALR 440	808
Peters Slip Pty Ltd v Commonwealth [1979] Qd R 123	667
Plessy v Ferguson [1896] USSC 151; 163 US 537 (1896)	149
Pochi and Minister for Immigration and Ethnic Affairs, Re [1979] AATA 64; (1979) 2 ALD 33	655
Police Service Board v Morris (1985) 58 ALR I	662
Police v Bernard Wurramurra, unreported Northern Territory Court of Summary Jurisdiction, 27 July 1977	511
Police v Charlie Ngalmi, unreported, Northern Territory Court of Summary Jurisdiction, 13 June 1979	464
Police v Eric Jackson, unreported, Northern Territory Court of Summary Jurisdiction, 22 November 1977	513
Police v Isobel Phillips, unreported, Northern Territory Court of Summary Jurisdiction (Nos 1529-1530), 19 September 1983	225, 430, 633, 648, 672
Police v Minhinnick, unreported, New Zealand, Rotorua Magistrate's Court, 3 March 1978	435
Police v Ralph Campbell, unreported, Northern Territory Court of Summary Jurisdiction, 8 June 1982	74, 229, 313, 315, 625, 645
Porter v R [1926] HCA 9; (1926) 37 CLR 432	808
Power v Huffa (1976) 14 SASR 337	434
Practice note [1964] 1 All ER 237	545
Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536	432
Pyneboard v TPC [1983] HCA 9; (1983) 45 ALR 609	662
Qazag, Re (1984) 20 SSR 219	388
Queen Victoria Memorial Hospital v Thornton [1953] HCA 11; (1953) 87 CLR 144	808
Question of the Greco-Bulgarian Communities PCIJ Set B No 17 (1930)	176
R v Abadom [1983] Crim LR 254	635
R v Adesanya, The Times, 16-17 July 1974	503
R v Adolph (1984) 47 BCLR 331	896
R v Ajax and Davey (1977) 17 SASR 88	555, 567, 570
R v Alwyn Peter, unreported, Queensland Supreme Court, 18 September 1981	31,318, 440, 532
R v Anderson, unreported, Northern Territory Supreme Court 11, 17 May 1954	509
R v Andy Mamarika, unreported, Northern Territory Supreme Court, 9 August 1978	510, 625
R v Anunga [1905] ArgusLawRp 116; (1976) 11 ALR 412	4, 75, 206, 546, 549, 552, 554, 564, 566
R v Apostolides [1984] HCA 38; (1984) 58 ALJR 371	675
R v B (1982) 135 DLR (3d) 285	139
R v Baker (1983) 4 CNLR 73	896
R v Bakker, unreported, Victorian Supreme Court, 27 February 1978	517
R v Banjo Anglitchi and others, unreported, Northern Territory Supreme Court,. No 316-322 of 1980	500, 51 I, 599
R v Bansal [1985] Crim L Rev 151	593
R v Banto Banto, unreported, Northern Territory Supreme Court, 18 April 1979	511
R v Banto Banto, unreported, Northern Territory Supreme Court, 21 September 1981	513
R v Bear's Shin Bone (1899) 3 Terr 329	258, 317
R v Bedelph (1980) I A Crim R 445	424
R v Bennie Goonringer, unreported, Northern Territory Supreme Court, Nos 306-307 of 1979	581
R v Bennie Goonringer, unreported Northern Territory Supreme Court, No 8 of 1983	581
R v Billinghurst [1978] Crim L Rev 553	502
R v Binns [1982] Crim L Rev 522	593
R v Bob Dixon Jabarula (1984) 11 A Crim R131	554, 562, 566
R v Bobby Iginiwuni, unreported, Northern Territory Supreme Court, 12 March 1975	511
R v Bon Jon (1841)	39, 45
R v Boyd (1984) 12 A Crim R 20	526
R v Broderick [1970] Crim L Rev 155	593
R v Burke [1983] 2 NSWLR 93	521
R v Burt Lane, Ronald Hunt & Reggie Smith, unreported, Northern Territory Supreme Court, 29 May 1980	509
R v Burton, unreported, Western Australian Supreme Court, 19 November 1979	497
R v Byrne (1867) 6 SCR (NSW) 302	237
R v Byrne [1960] 2 QB 396	440
R v Callope [1965] Qd R 456	422, 423
R v Catagas (1977) 81 DLR (3d) 396	474, 971
R v Chapman [1959] 1 QB 100	319
R v Charlie Limbiari Jagamara, unreported, Northern Territory Supreme Court, 28 May 1984	402, 449, 475, 488, 497, 676, 692
R v Clark [1980] TASRp 4; (1980) 2 A Crim R 90	428
R v Claude Mamarika, Raymond Mamarika & Andy Mamarika, unreported, Northern Territory Supreme Court, 17-19 August 1982	402, 449, 477, 487, 503, 546
R v Clevens, unreported, Australian Capital Territory Supreme Court, SCC no 53 of 1980	563, 570
R v Cobby [1883] NSWLawRp 58; (1883) 4 LR (NSW) 355	58, 237, 313
R v Collins [1980] FCA 72; (1980) 31 ALR 257	567, 571,589
R v Coney (1882) 8 QBD 535	502
R v Cope (1981) 134 DLR (3d) 36	896
R v Craigie & Patten, unreported, New South Wales District Court (No 1202 of 1979) November 1980	435, 469
R v Croft (1981) 3 A Crim R 307	424
R v Damic [1982] 2 NSWLR 750	675
R v Danvers [1982] Crim L Rev 681	594
R v Diack (1983) 19 NTR 13	592, 593
R v Diamond Turner (otherwise Tjana), unreported, Northern Territory Supreme Court, 28 November 1979	510
R v Dincer [1983] VicRp 41; [1983] VR 460	424
R v Dixon (1975) 22 ACTR 13	510
R v Dixon (1983) 7 Crim LJ 122	424
R v Donovan [1934] 2 KB 498	502
R v Douglas Wheeler Jabanunga, unreported, Northern Territory Supreme Court, 16 October 1980	436, 535
R v Drybones [1970] SCR 282	139, 141
R v Dudley & Stephens (1884) 14 QBD 273	430
R v Dutton (1979) 21 SASR 356	424
R v Edith Dawn Watson, Queensland District Court, Townsville, 5, 6 December 1983	572
R v Eninew (1984) 10 DLR (4th) 137	896
R v Ferguson, unreported, Western Australian Supreme Court, 8 April 1970	497
R v Fuzil Deen (1896) 6 QLJR 302	237
R v George (1966) 55 DLR (2d) 386	896
R v Gibson, unreported, South Australian Supreme Court, 12 November 1973	550, 593, 603
R v Governor of Lewes Prison [1981] 2 KB 254	653
R v Graham [1982] I WLR 294	428, 429
R v Grant [1975] WAR 163	419, 581,582, 584
R v Grant and Lovett [1972] VicRp 47; [1972] VR 423	592
R v Green (1970) 16 DLR (3d) 137	502
R v Gudabi, unreported, Northern Territory Supreme Court (SCC No 85 of 1982) 30 May 1983	595, 599, 654
See also Gudabi v R [1984] FCA 16; (1984) 52 ALR 133
R v Gus Forbes, unreported, Northern Territory Supreme Court, (SCC no 22, 23 of 1980) 29 August 1980	519, 589
R v H (1981) 3 A Crim R 53	510, 530
R v Handley & Alford [1984] VicRp 18; [1984] VR 229	633, 634
R v Haseldine, unreported, South Australian District Court Pt Augusta Circuit, 30 September 1983	550
R v Hayden [1983] 6 WWR 655	142
R v Herbert, Sampson and Wurrawilya [1982] FCA 147; (1982) 42 ALR 631; (1983) 23 NTR 22; (1984) 53 ALR 542	157, 438, 519, 522, 589
See also Herbert, Sampson and Wurrawilya v R;
R v Sampson, Herbert and Wurrawilya
R v Holroyd, unreported, Cairns District Court, 1978	435
R v Honner [1977] Tas SR I	416
R v Hoosen and Nelson, unreported, Northern Territory Supreme Court, 10 April 1978	554, 567
R v Hope [1909] ArgusLawRp 9; [1909] VLR 149	607
R v Hyam [1974] UKHL 2; [1975] AC 55	416
R v Iakapo & Iapirikila [1965-6] PNGLR 147	405
R v Jack Congo Murrell (1836) I Legge 72	40, 45, 62, 66
R v Jacky Jagamara, unreported, Northern Territory Supreme Court, 24 May 1984	475, 488, 497, 577, 598
R v Jacob Ah Won, unreported, Northern Territory Supreme Court, 21 September 1979	514
R v Jambajimba Yupupu, unreported, Western Australian District Court, No 128 of 1976	582, 587
R v James Yulidjirri, unreported, Northern Territory Supreme Court, 7 September 1981	513
R v Jeffries [1946] NSWStRp 54; (1947) 47 SR (NSW) 284	544
R v Joseph Murphy Jungarai (1981) 9 NTR 30	495, 506, 511, 624
R v Jungala and Jagamara, unreported, Northern Territory Supreme Court, Nos 434-439 of 1979	554, 570
R v Kennedy, unreported, Northern Territory Supreme Court, November 1978	567
R v Kipali-Ikarum [1967] PNGLR 119	609
R v Kirby, ex pane Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254	808
R v Kuruwara (1901) 10 QLJ 139	607
R v Kusu [1981] Qd R 136	438
R v Lambert, ex pane Plummer [1980] HCA 52; (1981) 32 ALR 505	381
R v Larry Baker, unreported, South Australian Supreme Court, 12 April 1985	516
R v Larry Colley, unreported, Western Australian Supreme Court, 14 April 1978	493
R v Lati, unreported, Review No I of 1982, Supreme Court of Fiji, 5 January 1982	405
R v Lawrence (1981) 32 ALR 72	429
R v Lee [1950] HCA 25; (1950) 82 CLR 133	544
R v Liquor Commission of the Northern Territory, ex pane Pitjantjatjara Council Inc (1984) 31 NTR 13	199
R v London County Council, ex parte Entertainments Protection Association Ltd [1931] 2 KB 215	474
R v McCafferty [1974] 1 NSWLR 89	428
R v Macdonald [1953] NTJud 7; [1953] NTJ 186	423
R v McGregor [1962] NZPoliceLawRp 13; [1962] NZLR 1069	426
R v McKenzie (1977) 17 SASR 304	555, 570
R v McLeod, unreported, New South Wales Supreme Court, Criminal Division, 82/9/231, 21 March 1983	532
R v McMinn [1982] VicRp 5; (1981) 38 ALR 565	318
R v Metropolitan Police Commissioner, exparte Blackburn [1968] 2 QB 118	472, 475
R v Machekequonabe (1894) 29 Ont 309	433
R v Madobi (1963) 6 FLR I	609, 610
R v Maki (1970)14 DLR (3d) 164	502
R v Mark Djanjdjomeer and others, unreported, Northern Territory Supreme Court, 14 February 1980	541
R v Martin [1979] TASRp 20; (1979) 1 A Crim R 85	438
R v Mary Ann Lewis [1877] Knox 8	604
R v Metropolitan Police Commissioner, exparte Blackburn (No 3) [1973] I QB 241	474
R v Miam Wapet (1970) No 602	405
R v Michel & Johnson [1984] I CNLR 157 (YCA)	896
R v Morris Alsop, unreported, South Australian Supreme Court, 14 July 1981	513, 533
R v Moses Mamarika [1982] FCA 94; (1982) 42 ALR 94	510, 511-2, 614, 624
R v Muddarubba [1956] NTJud 1; [1956] NTJ 317	72, 423
R v Murray [1982] I NSWLR 740	521
R v Nan-e-quis-a-ka (1889) I Terr LR 211	240, 258
R v Neal [1982] HCA 55; (1982) 42 ALR 609	532
R v Neddy Monkey (1861) I W & W(L) 40	58, 237, 313
R v Nobi-Bosai [1971-2] PNGLR 271	405
R v O'Neill [1982] VicRp 13; (1981) 4 A Crim R 404	424
R v Old Barney Jungala, unreported, Northern Territory Supreme Court, 8 February 1978	430
R v Osman (1881) 15 Cox CC I	607
R v Paddy (1876) 14 SCR (NSW) 440	604
R v Panerkar (1971) 5 CCC (2d) 1	423
R v Pat Edwards, unreported, Northern Territory Supreme Court, 16 October 1981	511
R v Patipatu [1951] NTJud 4; [1951] NTJ 18	72, 423
R v Patrick Nagorili (known as Nuguwalli), unreported, Northern Territory Supreme Court, 6 March 1984	624
R v Peagui Ambimb [1971-72] PNGLR 258	609
R v Perry [1909] 2 KB 697	607
R v Peter Daniel Jagamara & others, unreported, Northern Territory Supreme Court, 18 November 1980	514
R v Pike [1829] EngR 417; (1829) 3 C & P 598	607
R v Pilimapitjimira, ex parte Gananggu [1965] NTJud 2; (1965) NTJ 776	74, 237
R v Podola [1959] 3 All ER 418	581
R v Presser [1958] VicRp 9; [1958] VR 45	581
R v Prince [1946] SCR 81	977
R v R (1981) 28 SASR 321	425
R v Rankin [1966] QWN 16; [1966] QJPR 128	423, 427
R v Reggie Goodwin, unreported, Northern Territory Supreme Court, 8 September 1975	508
R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381	432
R v Rocher (1984) 55 AR 387	142, 165,971, 977
R v Ryan (1966) 50 Cr App R144	544
R v Sammy Jabarula, unreported, Northern Territory Supreme Court, 10 January 1985	497
R v Sampson, Herbert & Wurrawilya [1947] ArgusLawRp 97; (1984) 53 ALR 542	157, 438, 519, 522, 589
See also Herbert, Sampson & Wurrawilya v R [1982] FCA 147; (1982) 42 ALR 631; (1983) 23
NTR 22
R v Sands, unreported, Ontario Provincial Court, I September 1981	896
R v Savage [1970] TASStRp 11; [1970] Tas SR 137	607, 609, 610
R v Sender (1982) 44 ALR 139	633
R v Shade (1952) 102 CCC 316	896
R v Sikyea (1965) 50 DLR (2d) 80	896
R v Simon (1982) 134 DLR (3d) 72	62, 896
R v Simpson, unreported, New South Wales Supreme Court, 15 December 1981	532
R v Skinny Jack & Ors, unreported, South Australian Supreme Court, 13 July 1964	432, 469
R v Smith (1872) 11 SCR (NSW) 69	604
R v Smith [1906] NSWStRp 3; (1906) 6 SR (NSW) 85	604
R v Smith [1964] VicRp 14; [1964] VR 95	544
R v Smith, unreported, New South Wales District Court, 19 October 1981	593-4
R v Stott, unreported, Northern Territory Supreme Court, 24 November 1977	511
R v Stuart [1959] HCA 27; [1959] SASR 133; (1959) 101 CLR 1	603
R v Sydney Williams (1976) 14 SASR 1	4, 72, 423, 491,492, 493, 513, 533, 550, 555, 570, 595, 624, 654
R v Symonds [1840-1932] NZPCC 387	898
R v Taaka [1982] 2 NZLR 198	424
R v Taylor and Williams (1981) 55 CCC (2d) 172	896
R v Toohey, ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 44 ALR 63	904
R v Tuckiar, see Tuckiar v R
R v Turner [1975] QB 834	635, 636
R v Wadderwarri [1951-76] NTJ 516	608, 610, 611
R v Webb (1977) 16 SASR 309	424
R v Webb [1969] 2 QB 279	581
R v Wedge [1976] I NSWLR 581	40
R v Wesley (1932) 4 DLR 774	896
R v Wesley Nganjmirra, unreported, Northern Territory Supreme Court, 9 November 1979	511,514
R v Wesley Nganjmirra, unreported, Northern Territory Supreme Court, 18 April 1983	535
R v White and Bob (1954) 50 DLR (2d) 613	895, 896, 900
R v Whitehorn [1983] HCA 42; (1983) 49 ALR 448	675
R v William Davey, unreported, Northern Territory Supreme Court, 30 June 1980; on appeal, unreported, Federal Court of Australia, 13 November 1980	494, 510, 632
R v Williams (1976), see R v Sydney Williams
R v Williscroft [1975] VicRp 27; [1975] VR 292	510
R v Woodcock (1789) I Leach 500	607
R v Wright [1980] VicRp 56; [1980] VR 593	633
R v Young [1957] Qd R 599 (CCA)	422
R, In re (1985) FLC 91-615	351
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642	634
Reed v Reed [1971] USSC 177; 404 US 71 (1971)	132
Regents of the University of California v Bakke [1978] USSC 145; 438 US 265 (1978)	133, 136
Rice v Connolly [1966] 2 All ER 649	544
Robbie v Director of Navigation [1944] NSWStRp 26; (1944) 44 SR (NSW) 407	653
Roberts v Devereux, unreported, Northern Territory Supreme Court, 22 April 1982	73
Rockman v Stevens, unreported, Northern Territory Supreme Court, October 1980	554, 567
Rogers v Rogers & Tatana, unreported, New Zealand High Court, 18 November 1982	342
Rosan All Khan v Chaudri Asghar Ali (1929) 57 IA 29	618
Ross-Spencer v Master of the High Court, unreported, Swaziland Court of Appeal,
17 April ! 972	84
Rourke v R (1977) 76 DLR (3d) 193	475
Royster Guano Co v Virginia [1920] USSC 140; 253 US 412 (1920)	132
Rumping v DPP [1964] AC 814	316
Rushby v Roberts, unreported, New South Wales Court of Appeal, 15 April 1983	351
Russell v Russell [1903] ArgusLawRp 46; (1976) 9 ALR 103	374, 656, 808
Samuels v F [1970] SASR 256	633
Samuels v Flavel [1970] SASR 256	633
Sander v Curnan [1965] VLR 648	653
Sanders, In the marriage of (1976) 10 ALR 604	351
Sangumu Wauta v State [1978] PNGLR 326	405, 407
Sankey v Whitlam (1978) 142 CLR I	658
Santa Clara Pueblo v Martinez [1978] USSC 76; 436 US 49 (1978)	135, 785
Saul v St Andrew's Steam Fishing Co Ltd, The St Chad [1965] Lloyd's Rep I	671
Schultz v R [1982] WAR 171	416
Scott v Scott [1913] AC 417	653
Seidler v Schallhofer [1982] 2 NSWLR 80	259
Shore v Wilson (1842) 9 C! & Fin 355	336
Simpson v Wells (1872) LR 7 QB 214	62
Smith v Grieve [1974] WAR 193	581
Smith v Organisation of Foster Families [1977] USSC 104; 431 US 816 (1977)	350
South West Africa Cases (Second Phase) ICJ Rep 1966, 6	148
Southern Rhodesia, In re [ 1919] AC 211	900
Spika Trading Pty Ltd v Royal insurance Australia Ltd, unreported, New South
Wales Supreme Court, 3 October 1985	647, 648
Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226	808
St Catherine's Milling and Lumber Co v The Queen (1888) 14 App Cas 46	900
State v Misimb Kais [1978] PNGLR 241	405
Stevens v Lewis, unreported, Northern Territory Supreme Court, SCC no 872 of 1979	570
Sunday Times Case ECHR Set A Vol 30 (1979)	190
Sussex Peerage Case [1844] EngR 822; (1844) 11 C & F 85	631
Ta, Re (1984) 22 SSR 247	389
Tasmanian Dam Case, see Commonwealth v Tasmania
Teori Tau v Commonwealth [1969] HCA 62; (1969) 119 CLR 564	1019
The Lundon and Whitaker Claims Act, In re (1872) 2 CA 41	898
Thomas v R [1937] HCA 83; (1937) 59 CLR 279	416, 432
Timbu Kolian v R [1968] HCA 66; (1968) 119 CLR 47	417
Toohey v Metropolitan Police Commissioner [1965] AC 595	636
Toohey, In re; ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 44 ALR 63	626
Torrens v Fleming [1980] FamCA 15; (1980) FLC 90-839	351
Tuckiar v R [1934] HCA 49; (1934) 52 CLR 335	40, 52, 58, 237, 394
Tyrer Case ECHR Set A Vol 26 (1978)	187, 190
United States v Analla [1974] USCA10 18; 490 F 2d 1204 (1974); 42 Led (2d) 40 (1974)	136
United States v Antelope [1977] USSC 57; 430 US 641 (1977)	136
United States v Big Crow [1975] USCA8 413; 523 F2d 955 (1975);	136
United States v Cleveland [1975] USCA9 45; 503 F2d 1067 (1974)	136
United States v Sandoval [1913] USSC 247; 231 US 28 (1913)	134
United States v Wheeler [1978] USSC 44; 435 US 313 (1978)	404, 785
Vallance v R [1961] HCA 42; (1961) 108 CLR 56	417
Veen v R [1979] HCA 7; (1979) 23 ALR 281	505
Viro v R (1978) 18 ALR 257	431
Viskauskas v Niland [1983] HCA 15; (1983) 57 ALJR 414	157
W v H [1978] VR I	273
Wacando v Commonwealth of Australia [1981] HCA 60; (1981) 37 ALR 317	905
Walker v Marklew (1976) 14 SASR 463	555, 570
Wallis v Solicitor-General for New Zealand [1903] AC 173	898
Wanganeen v Smith, unreported, South Australian Supreme Court, 28 January 1977	124
Washington v Yakima Indian Nation [1979] USSC 34; 439 US 463 (1979)	136
Watson v Campbell (No 2) [1920] VicLawRp 69; [1920] VLR 347	249
Weal v Bottom (1966) 40 ALJR 436	630
Welbeck v Brown (1882) Sarbah FCL 185	62
Western Sahara Advisory Opinion ICJ Rep 1975, 12	66
Williams v Lee [1959] USSC 13; 358 US 217 (1959)	786
Wiparata v The Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72	898
Wirth v Wirth (1956) 98 CLR 229	283
Wise Bros Pty Ltd v Commissioner of Railways (NSW) [1947] HCA 33; (1947) 75 CLR 59	630
Worcester v Georgia [1832] USSC 39; 31 US 515 (1832)	134, 784
Yako, In re v Beyi 1940 (1) SA 388 (AD)	797
Yildiz v R (1983) 11 A Crim R 115	629, 640
Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433	402

References are to paragraphs in this Report

	Para
Australia
Commonwealth
Aboriginal Land Rights (Northern Territory) Act 1976	27, 115, 205, 212, 330,
	658, 661,831,904, 411,
	935, 938, 1022, 1026
s 3	94, 650, 886, 889
s9	915
s 12	915
s 25	759, 765
s 50	626
s 53	626
s 54	626
s 54A	626
s 69	200, 445-6, 648
s 71	77, 200, 204, 445-6, 889
s 72	445
s 73	915,996
s 74	915
Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975
s 5	94, 729, 807
s 6	729
s 7	729
s 8	729
s 9	729
s 10	729
s 11	729
Aboriginal Development Commission Act 1980	28
Aboriginal and Torres Strait Islander Heritage (Interim Protection)Act 1984	78, 213, 219, 469-70, 656,
	831, 1022
s 3	94, 467
s 4	467
s 12	466
s 20	466
s 21	466
Aboriginals and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978	740
Aborigines and Islanders (Admissibility of Confessions) Bill 1981	547
Administrative Appeals Tribunal Act 1975
s 35	655
Bill of Rights Bill 1985
Art 1	128
Art 4	128
Art 13	262
Broadcasting and Television Act 1942
s 25	647
Cocos (Keeling) Islands Act 1955
s 18	200
Commonwealth Electoral Act 1918	918
s 3	26
Commonwealth Electoral Legislation Amendment Act 1983	26
s 28	26
s 123	26
Compensation (Commonwealth Government Employees) Act 1971	80
s 3	239
s 5	298
s 45	298
Constitution 1901
s 41	26
s 51	808, 1012
s 51(2)	1019, 1021
s 51(10)	942
s 51(21)	197, 381, 1012, 1019, 1021
s 51(23)	1019
s 51 (26)	26, 80, 90-2, 151,197,
	381, 1002, 1004, 1012-8,
	1021, 1025-6
s 51(29)	1013
s 51(31)	1019
s 51(39)	1021
s 72	808, 1021
s 77(3)	1021
s 80	808
s81	1019
s 96	1019
s 109	1028
s 116	1020
s 122	808, 1019, 1021, 1026
s 127	90
Coral Sea Islands Act 1969	947
Criminal Investigation Bill 1981	547, 565, 569, 573, 1025
cl 19	548, 566
cl 20	548
cl 26	548, 563, 565
cl 28	548
cl 31	548
cl 69	548, 570
Customs Act 1901
s 112	467
Director of Public Prosecutions Act 1983
s 8	474
s 11	474
Environment Protection (Alligator Rivers Region) Act 1978	910
s 17	911
s 18	911
Family Law Act 1975	235, 244, 349, 351,381,
	1006
s 4	283
s 5	378
s 6	259, 306
s 44	287
s 51	261
s 60	259, 261, 1019
s 62	675
s 63	675
s 64	349-50
s 70	261
s 71	259, 1019
s 72	281
s 73	281
s 74	281
s 75	281
s 76	281
s 79	287
s 100	316
s 114	321
s 114AA	321
s 114AB	321
Family Law Act Regulations
Reg 111	675
Reg 117	675
Federal Court Rules
038 r 2-4	675
Fisheries Act 1952	942, 948
s 4	948
s 5A	944
s 8	948
s 32	949
s 34	947
Fisheries Legislation Amendment Act 1984
s 6	948
s 10	948
Great Barrier Reef Marine Park Act 1975	942, 958-9, 966-7 1002-3,
	1010,
s 3	949
s 5	949
s 32	949, 992, 997, 1001-3,
	1010
High Court Rules
038 r 2-4	675
Income Tax Assessment Act 1936	325, 1006
s 159H	322
s 159J	322
Judiciary Act 1903
s 39	809
Marriage Act 1961	233, 237, 254, 262, 268,
	278-80, 285 294, 301,307,
	321 339, 351,377
s 11	261,319
s 12	261,319
s 23(1)(a)	249, 255, 259, 261
s41	237
s 48	237
s 88C	261,319, 392
s 88D	261
s 88E	259, 261
s91	317
s 94	255, 317
s 111 A	249
Marriage Amendment Act 1985	319
National Parks and Wildlife Conservation Act 1975	911,965, 969
s 3	909
s 6	909-10
s 7	909-10
s 11(11A)- (11F)	901,910-11,913, 999
s 11-14	909
s 14(1)	910
s 14A-D	910, 912-3
s 18	910, 920
s. 44	912
s 58H	929
s 70	909, 964
s 71	79, 909
s 101	929
s 103	929
s 112	929
s 117	929
Northern Territory (Self-Government) Act 1978
s 9	439, 1026
Quarantine Act 1908	947
Racial Discrimination Act 1975	128, 155, 157-8, 182, 522,
	1013
s 3	96
s 8	152-3
s 9	152
s 10	152, 729
s 30-43	182
s 44	182
Repatriation Act 1920	299
Repatriation (Far East Strategic Reserve) Act 1956	299
Repatriation (Special Overseas Service) Act 1962	299
Repatriation (Torres Strait Islanders) Act 1972	299
Sex Discrimination Act 1984	263
s 5	595-6, 656, 658
s 8	656
s9	182
s 14-27	656
s 26	595-6, 656
s 30-44	656
s 40	595-6
s 63	656
Schedule	182
Social Security Act 1947	302-3, 310, 322, 325,
	1006, 1027
s 6	303, 305, 307, 309
s 28	308
s 31	303, 306-7
s 32	308
s 59	303, 306
s 60	306
s 62	285, 312
s 63	308
s 83AAA	306, 388, 390
s 83AAE	308
s 95	388, 390
s 102	311
s 103	388
s 112	308
s 124	303
Superannuation Act 1976
s 6	301
Torres Strait Fisheries Act 1984	948, 958, 989, 996,
	1001-3, 1010
s 3	944, 947, 981
s 5	957
s 7	944
s 8	945
s 14	947
s 16	945-7, 981, 1003
s 17	945, 947
s 19	947
s 31	944
s 39	945, 1003, 1010
Torres Strait Fisheries Act Regulations
reg 16	945
Torres Strait Treaty (Miscellaneous Amendments) Act 1984	947
s 14	944
Wildlife Protection (Regulation of Exports and Imports) Act 1982	947
World Heritage Properties Conservation Act 1983
s 8	151, 1013
s 11	151, 1013

Australian Capital Territory
Adoption of Children Ordinance 1965
s 15	349
s 17	276
s 24	273
Child Welfare Ordinance 1957	282
s 30	385
Court of Petty Sessions Ordinance 1930
s 52	653
Crimes Act 1900 (NSW) as in force in the ACT
s 19	521
s 67-75	319
Evidence Ordinance 1971
s 57	662
Maintenance Ordinance 1968	282

New South Wales
Aboriginal Land Rights Act 1983	212, 930
s 4	93
s 36	668
s 45	668
s 47	79, 941, 966
s 48	941,668, 991
s 59	668
Aboriginal Protection Act 1909	25
Aborigines Act 1969
s 2	93,363
Adoption of Children Act 1965
s 17	349
s 19	276
s 26	273
s 31 A-E	273
Adoption of Children (Community Welfare) Amendment Act 1982
schedule 1	385
Adoption of Children (De Facto) Relationships Amendment Act 1984
s 26	273
Child Welfare Act 1939	282
s 28-9	385
Children (Equality of Status) Act 1976	271
Community Justice Centres (Pilot Project) Act 1980
s 23	682
Community Welfare Act 1982	372
s 5	363
s 40-41	385
s 47	385
s 70-1	378
s 81	363
s 91	385
s 94	385
Crimes Act 1900
s5	418
s 19	521
s 23	425
s 23A	440
s 61A	318
s 67-75	319
s 407AA	313
s 408	610
Crimes (Domestic Violence) Amendment Act 1983	313, 321
Crimes (Endangered Fauna) Amendment Act 1983	929
Criminal Injuries Compensation Act 1967	300
De Facto Relationships Act 1984
s 14-20	283
s 24	292
s 25	292
s 27	282
s 53-5	321
Evidence Act 1898
s 9	662
Family Provision Act 1982
s 6	293
Firearms and Dangerous Weapons Act 1973	929
s 43	962
s 44	962
Fisheries and Oyster Farms Act 1935	967, 984, 1002
s 18	960
s19	960
s 20	960
s 22A	960
s 25	960
s 26	960
s 29	960
s 33	960
s 34	960
s 83	960
s 85	960
s 112	960
s 116	960
reg 181	960
Forestry Act 1916
s 36	962
s 41	962
'Infants' Custody and Settlements Act '1899
s 5	282
Justices Act 1902
s 32	653
Land and Environment Court Act 1979
s 12	668
s 30(2A-B)	668
Maintenance Act 1964	282
Married Persons (Property and Torts) Act 1901
s 22	283
National Parks and Wildlife Act 1974	965, 1003
s 70	929
s 71	929
s 95	929
s 100	929, 964
s 117	929
Offences in Public Places Act 1979	547
Rules of the Supreme Court
036 r 16	675
040 r 1(1)	675
Workers Compensation Act 1926
s 6	296

Northern Territory
Aboriginal Land Act	831
s 4	77
s 12	890, 953
s 15	953
s 18	953
Aboriginal Sacred Sites Act	78
Aboriginals Ordinance (No 2) 1937	313
Administration and Probate Act	80
s 6	82, 239, 292, 339
s 67	292
s 67A	292
s 71B	82, 292, 339
s 71C	339
s 71E	339
s 71F	339
Adoption of Children Amendment Act
s 6	274, 277
Adoption of Children Act
s 10	349
s 12	74
s 21	273
Associations Incorporation Act	375, 763
Cemeteries Act
s 21	466, 542, 1007
Children Act
s 3	271
s 5	239, 271
s 12	276
Cobourg Peninsula Aboriginal Land and Sanctuary Act
s 3	77
s4	916
s 5-7	916
s8	916
s 19	916
s 23	916
s 27	916
s35	916
Community Welfare Act	282, 365
s 4	360
s 9	378
s 43	360
s 62	378
s 68	360
s 69	81,353, 360, 373
s 70	360, 375
s 71	763
s 77	360
Compensation (Fatal Injuries) Act
s 4	239, 298
Crimes Compensation Act
s 4	239, 300
Crimes Ordinance 1934
s 6A	51, 52, 56
Criminal Code 1983	80, 519, 1007, 1024
s 1	239, 320
s5	318
s 7	418, 439, 542
s 30	434
s 32	432
s 33	430
s 37	440
s 40	428
s 41	430, 452
s 126	319
s 129	319
s 154	503
s 164	56, 520
s 177	503
s 186	503
s 187	503
s 357	581
s 360	602
s 383	439
Criminal Procedure Ordinance 1933	52
s 6	51, 56
Crown Lands Act
s 24	79, 936-8, 966, 976, 991
Evidence Ordinance 1939
s 9A	52
s 10	662
s 25A	52
Family Provision Act	80
s 4	293
s 7	239, 293-4
s 8	339
Firearms Act
s 24	936
s 94	936
Fish and Fisheries Act
s 14	952, 967, 985
s 26	951
s 93	951-2, 967
reg 7B	951-2, 967
Justices Ordinance
s 107	653
Liquor Act
s 50	647
Local Government Act (No 4)	375, 763
s 439	761
s 454	760
s 476	761
Maintenance Act	282
Married Women's Property Act 1883 (SA) as in force in the NT	283
Motor Accidents (Compensation) Act	80
s 4	239, 298
Native Administration Ordinance 1940	52, 56, 721
Oaths Ordinance 1967	52
Police Administration Act
s 19	852
Status of Children Act	80, 267, 271
s 3	265
Territory Parks and Wildlife Conservation Act	1002
s 9	916
s 22	964
s 29	914
s 29	914
s 31	914
s 37	916
s 73	915
s 122	914, 984
Welfare Ordinance 1953	25
s4	313
Workmen's Compensation Act	80, 261
s 6	296
s 7	296
s 17	239
Second Schedule	296

Queensland
Aboriginal Preservation and Protection Act 1939	83, 721
s 10	55
s 12	55
Aboriginal Relics Preservation Act 1967	78
s 3	78
Aborigines Act 1971	445, 694, 723, 725, 740
s 48	239, 313
s 49	239
Aborigines and Islanders Acts Amendment Act 1979
s 13	239
Aborigines and Torres Strait Islanders' Affairs Act 1965
s 41	239, 313
Acts Interpretation Act 1954
s 21	728
Adoption of Children Act 1964
s 10	349
s 19	273
Adoption of Children Act Amendment Act 1983	362
Children's Services Act 1965	282
s 105	279
Community Services (Aborigines) Act 1984	700, 723, 741,743, 746,
	880, 1009
s 6	723
s 11	733
s 24	728
s 25	727-8, 744
s 39	730, 852
s 40	730
s41	730
s42	723-4
s43	724, 744, 833
s44	724
s 45	725
s 68	727
s 75	82, 339
s 76	727
s 77	928, 965, 975
s 79	728
s 82	728
Community Services (Aborigines) Regulations 1985
reg 23	726
reg 24	728
reg 27	728
Community Services (Torres Strait) Act 1984
s 6	723
s 76	928
Criminal Code Act 1899
s 22	434
s 23	417
s 24	432
s 25	430
s 28	438
s 31	428
s 212-6	319
s 304A	440
s 613	581
Evidence Act 1977
s 10	662
Family and Community Development Bill 1984
cl 181	362
cl 196	362
Fauna Conservation Act 1952
s 78	927
Fauna Conservation Act 1974	927, 1003
Firearms and Offensive Weapons Act 1979
s 72	962
s 73	962
Fisheries Act 1976	958, 967, 1003
s 5	957
s 6	957
s 77	957
Fishing Industry Organisation and Marketing Act 1982	967, 1003
s 31	957, 985
s 36	957
Justices Act 1886	740
s 71	653
Land Act 1962	928
s 350	901
Land Act (Aboriginal and Islander Land Grants) Amendment Act
1982	212, 723, 901
Local Government (Aboriginal Lands) Act 1978	740, 965
s 29	928
Local Government Act 1936	740, 746
Magistrates Court Act 1921	740
Maintenance Act 1965	282
Marine Parks Act 1982	959, 967, 997
Married Women's Property Acts 1890
s 21	283
National Parks and Wildlife Act 1975
s 34	927
Native Birds Protection Act Amendment Act 1877
s 10	907
Status of Children Act 1978	271
Succession Act 1981	293
s40-1
Torres Strait Fisheries Act 1984	945
s 5	957
s 7	957
Torres Strait Islanders Act 1971	239

South Australia
Aboriginal and Historic Relics Preservation Act 1965	78
s 3	93
Acts Interpretation Act I915
s 48	65
Administration and Probate Act 1919
s 4	338
s 72	244, 292
Adoption of Children Act 1966
s 9	349
s 11	276
s 21	273
s 72	364
Adoption of Children Regulations
reg 17	364
Birds Protection Act 1900
s 4	907
Childrens Protection and Young Offenders Act 1979	537
Community Welfare Act 1972	282
s 6	93, 385
s 10	364
s 25	350
Criminal Injuries Compensation Act 1977	300
Criminal Law Consolidation Act 1935	318
s 6	519, 522
s 6A	519, 522
s 8	522
s 10	522
s 48	318
s 49	319
s 50-55	319
Crown Lands Act 1929
s 18	962
s 24	962
s 272	962
s 275	962
Evidence Act 1929
s18	602
Family Relationships Act 1975	268,271,292,338
Fisheries Act 1878
s 14	907
Fisheries Act 1971	954, 984, 1003
Fisheries Act Amendment Act 1893
s8	907
Inheritance (Family Provision) Act 1972
s 4	292-3
s 7	293
Justices Act 1921
s 5	534
s 69	653
s 107	653
Law of Property Act 1936
s 105	283
Maralinga Tjarutja Land Rights Act 1984	77, 83, 766, 920, 965
s 43	920
National Parks and Wildlife Act 1972	920, 1003
s8	917
s 49	919, 964
s53	917
s 68	917, 939
s 80	917-8, 984
reg 14	977
Native Vegetation Management Act 1985
s 19	919
s 20	919
Pastoral Act 1936
Schedule 1	79, 939
Pitjantjatjara Land Rights Act 1981	399, 722, 965
s 15	77
s 19	153, 155
s 35	83
s 36	83, 766
s 43	920
Part IV	766
Police Regulation Act Amendment Act 1985
s 35	858
Succession Duties Act 1929
s 4	292
Summary Offences Act 1953
s 79A	555
Superannuation Act 1974
s 121	292
Wills Act 1936
s 11	334
s 12	334
Wrongs Act 1936	298
s 3	298
s 19	292
s 20	292, 298
s 23	298

Tasmania
Aboriginal Relics Act 1975	78
s 2	93
Adoption of Children Act 1968
s 11	349
s 13	276
s 21	273
Child Welfare Act 1960
s 64	282, 385
Criminal Code Act 1924
s 13	417
s 14	432
s 17	438
s 39	428
s 45	434
s 49	428
s 53	503
s 124	319
s 128	319
s 129	319
s 182	503
s 371	603
Crown Lands Act 1976
s 41-46	933, 962
Crown Lands Act Regulations	933
Evidence Act 1910
s 81K	610
s 87-89	662
s 101	662
Fisheries Act 1959	961,984
Forestry Act 1920
s 46	933, 962
Forestry Act Regulations	933
Justices Act 1959
s 56	653
Maintenance Act 1967
s 16	282
Married Women's Property Act 1935
s 8	283
Museums (Aboriginal Remains) Act 1984	466
National Parks and Wildlife Act 1970	964, 984, 1002
s 32-37	933
Status of Children Act 1974	271
Tasmania Museum Act 1976	466

Victoria
Aboriginal Affairs (Transfer of Functions) Act 1974	559
Aboriginal Affairs Act 1967	559
Aboriginal Land Claims Bill 1983	965
cl 13	932, 979
Aboriginal Lands Act 1970
s 2	93
Adoption Act 1984	365
s 9	349
s 11	80,239,277
s 15	361
s 33	273
s 37	361
s 50	81,352, 361,373-4, 386
s 70	361
s 114	361
Archaeological and Aboriginal Relics Preservation Act 1972	78
s 2	93, 469
Children (Guardianship and Custody) Act 1984	383, 385, 386
s 3	361
s 12(2)	80, 239, 277, 279, 352, 361
Community Welfare Services Act 1970	282
Crimes (Amendment) Bill 1985
s 10	318
Crimes Act 1958
s 45	318
s 46-50	319
s 62	318
s 400	313
s 407AA	313
Criminal Injuries Compensation Act 1983
s3
Evidence Act 1958
s 29	662
Fisheries Act 1873
s 30	907
Fisheries Act 1968	961,984
Forests Act 1958	932
Game Act 1867
s 12	907
Juries Act 1967	592
Magistrates (Summary Proceedings) Act 1975
s 43	653
Maintenance Act 1965	282
Marriage Act 1958
s 161	283
Motor Accidents Act 1973
s 3	298
National Parks Act 1975	931-2
National Parks Act Regulations	931
Status of Children Act 1974	271
Wild Flowers and Native Plants Protection Act 1958	932
Wildlife Act 1975	931-2, 964, 984, 1003

Western Australia
Aboriginal Affairs Planning Authority Act 1972
s 4	93, 923
s 23	924
s 25	924
s 32	924
s 33	339
s 34	339
s 35	82, 339
s 49	558, 581
s 51	924
Aboriginal Affairs Planning Authority Act Regulations 1972
reg 9	339
Aboriginal Communities Act 1979	83, 211, 445, 530, 685
	747, 757-8, 880, 1009
s 4	748
s 6	750-1
s 7	748-51,852
s 9	750-1
s 12	750-1
Aboriginal Heritage Act 1972	78
s 4	93
Aboriginal Land Bill 1985	212, 956, 965-6, 968, 992
cl 59	926
cl 60	926
cl 69-94	940
cl 71	975
cl 74	991
cl 83	956
cl 86	993
cl 92	956
cl 93	956
cl 96	926
cl 97	926
cl 98	926
cl 99	926
cl 100	926
cl 101	926
cl 106	926
Aborigines Act 1905
s 42	239
s 59A	53, 581
Adoption of Children Act 1896
s 2A	349
s 4	276
s 4A	273
s 56	276
Child Welfare Act 1947	282
s 44	385
s 111	385
Constitution Act 1889
s 70	713
Criminal Code Act Compilation Act 1913
s 22	434
s 23	417
s 24	432
s 25	430
s 28	438
s 31	428
s 183-7	319
Criminal Injuries Compensation Act 1982	300
Environmental Protection Act 1971	997
s 4	925
Evidence Act 1906
s 11-13	662
s 24	662
Family Court Act 1975	282
Firearms Act 1973
s 8	962
s 10	962
s 10A	962
Fisheries Act 1899
s 11	907
Fisheries Act 1905	967, 1003
s 9	955
s 10	955
s 17	955
s 23	955
s 23A	955
s 24	955
s 26	955
s 56	79, 93, 955
Forests Act 1919
s 45	962
s 49	962
s 51	962
Game Act 1874
s13	907
Inheritance (Family and Dependants Provision) Act 1972
s 4	271
Interpretation Act 1918
s 43	65
Justices Act 1902	750
s 66-7	653
Land Act 1933
s 27	921
s 28	921
s 29	921,924
s 106	79, 940, 966, 975
Married Women's Property Act 1892
s 17	283
National Parks Authority Act 1976	921-2, 964, 984, 1003
Native Administration Act 1905	54
s 59A	53
s 59C	53
s 59D	53
s 60	53, 558
s 61	53
s 62	53
s 63	53, 56
s 64	53
Native Welfare Act 1905	713
Native Welfare Act 1936	562
s 57	558, 581
Native Welfare Act 1954	56
Native Welfare Act 1963
s 31	558
Pearling Act 1912
s 109	955
Police Act 1892
s 38A	852
Wildlife Conservation Act 1950	1003
s 12D	923, 964
s 12E	923
s 23	79, 923, 940, 964, 981

Canada
Federal
Bill for an Act Respecting the Hunting and Fishing Rights of Indian Canadians (Bill C-124 of 1969)	972
British North America Act 1867, see Constitution Act 1867
Canadian Bill of Rights 1960	129, 138, 140, 142, 158
Charter of Rights and Freedoms, see Constitution Act 1982'
Constitution Act 1867	793
s 91 (24)	134, 140, 142, 144, 899
Constitution Act 1982
Charter of Rights and Freedoms	143, 158
s 15	143-4
s 25	143-4
s 27	143
s 28	143
s 35	143-4, 896, 973, 1036
s 37	896, 1036
Cree Naskapi (of Quebec) Act 1984
s 48	896
Indian Act 1951
s 88	896, 899
Indian Act 1970	176
s 2	792
s 4	792
s 12(1)(b)	140, 176, 191
42	141-2
43	141
81	357, 794
83	794
94	139
107	794
Indian Self Government Bill (Bill C52 of 1984)	1036
James Bay and Northern Quebec
Native Claims Settlement Act 1977	896, 981,983-4, 986
s 18	794
s 19	794
s 20	794
s 24	999-1000
Migratory Birds Convention Act	971
Natural Resources Agreements 1930	896
Northwest Territories Act 1970
s 14	896
Yukon Act 1970
s 17(3)	896, 1036

Provincial
Child Welfare Act 1984 (Alberta)
s 66	357
s 73	357
Child Welfare Act 1974 (Manitoba)
s 7	357
Children and Family Services Act 1985 (Ontario)
s 15-20	357
s 37	357
s 53	357
s 54	357
s 57	357
s 60	357
s 65	357
s 130(3)	357
s 191	357
s 196	357
s 206	357
Liquor Ordinance 1956 (North West Territories)
s 19(1)	139-40
Spallumcheen Band's Child Welfare By-Laws 1980 (British Columbia)
s 10	357
s 12	357
s 15	357
s 18	357
s 19	357
s 23	357

United Kingdom
Australian Courts Act 1828
s3	40
s 24	40
Canada Act 1982	143
Children and Young Persons Act 1963	319
Criminal Justice Act 1967
s 8	416
Imperial Act of 1843 (6 & 7 Vic c22)	604
Married Womens' Property Act 1882	283
Sexual Offences Act 1956
s6	319
s 19	319
Imperial Act of 1834 (4 & 5 Wm IV c95)
s 1	65

United States of America
Constitution
Article 1	784
5th Amendment	135
14th Amendment	135
Indian Child Welfare Act 1978	81,137, 357, 360, 376,
	785-6
s 2	353
s 3	353
s 4	353, 356,367
s 101	354-6
s 102	354
s 103	354
s 104	354
s 105	354
s 106	354
s 107	354
s 108	355
s 109	356
s 111	354
s 112	354
Indian Civil Rights Act 1968	134-5, 203, 404, 785, 791
Indian County Crimes Act (1778-1877)	785
Indian Reorganisation Act 1934	135, 780
Major Crimes Act 1885 (USA) 18 USC 1153 (1978)	134, 136, 203, 404, 785-6
Public Law 280 (1953)	785-6

Papua New Guinea
Constitution 1975
s 9	407
s 20	407, 620, 769-70
s 21	407, 769-70
sch 2	407, 620, 769-70
Customs Recognition Act
s 2	620, 627
s 6	466
s 7	427A66
Local Courts Act 1963
s 17	240
Marriage Act 1963
s 55	240
Native Customs Recognition Ordinance 1963, see Customs Recognition Act
Sorcery Act 1971
s 20	433
Village Courts Act 1973	779
s 12	770
s 14	770'
s 16	770
s 17	770
s 21	770
s 26	407, 620, 770
s 27	770

New Zealand
Juries Act 1908
s 144	800
Juries (Amendment) Act 1962	800
Maori Affairs Act 1953	800
s 2	898
s 155	898
Native Land Act 1862	800
Native Land Act 1909
s 84	898

Africa
Black Administration Act 1927 (South Africa)
s 10	796
s 11	796, 798
s 12	796
s 13	796
s 14	796
s 19	796
s 20	796
s 35	796
Constitution Act 1963 (Transkei South Africa)
s 50	798
Customary Law (Application and Ascertainment) Act 1969 (Botswana)
s 11	619
Customary Law and Primary Courts Act 1981 (Zimbabwe)	795
s3	410
Evidence Act 1945 (Nigeria)	642
s 14	619
s 15	619
s 33	619
s 56	619
s 58	619
s 62	619
Native Code of Natal 1891	200

Christmas and Cocos (Keeling) Islands
Evidence Ordinance 1955 (Singapore) as in force in the Christmas and Cocos (Keeling) Islands
s 45	619
s 47	642

India
Evidence Act 1872	619
s 32	618, 641
s 48	618, 642
s 49	618
s 56	642
s 57	618

Cook Islands
Constitution 1964
s 64	145

Western Samoa
Criminal Procedure Act 1972
s 86-103	667

BIBLIOGRAPHY

NOTE: Items are listed under the Parts of the Report in which they appear (if more than one, under each of them), as follows:

Under each Part books and articles are listed separately from official papers and reports,
and official papers and reports are listed under the relevant jurisdiction.

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BERNDT, CH, 'Aboriginal Women and the Notion of "The Marginal Man'" in RM Berndt and CH Berndt (ed) Aborigines of the West, University of Western Australia Press, Perth, 1980, 28.

BERNDT, RM, 'Groups with Minimal European Associations' in H Sheils (ed) Australian Aboriginal Studies, Oxford University Press, Melbourne, 1963, 387.

BERNDT, RM, 'Law and Order in Aboriginal Australia' in CH Berndt and RM Berndt (ed) Aboriginal Man in Australia. Essays in Honour of EP Elkin, Sydney, Angus & Robertson, Sydney 1965, 166.

BERNDT, RM & BERNDT, CH, Arnhem Land. Its History and its People, Cheshire, Melbourne, 1954.

BERNDT, RM & BERNDT, CH, The World of the First Australians, 4th rev edn, Rigby, Adelaide, 1985.

BLACKSTONE, W, Commentaries on the Laws of England, Clarendon Press, Oxford, 1765, vol I.

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COLLINS, D, An Account of the English Colony in NSW, T Cadell Jnr & W Davies, London, 1789, vol 1.

COOMBS, HC, DEXTER, BG & HIATT, LR, 'The Outstation Movement in Aboriginal Australia' in E Leacock and R Lee (ed) Politics and History in Band Societies, Cambridge University Press, Cambridge, 1982, 427.

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CRAWFORD, J, 'The Australian Law Reform Commission's Reference on the Recognition of Aboriginal Customary Law' (1984) 17 Verfassung und Recht in Ubersee 133.

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DAGMAR, H, Aborigines and Poverty, Katholicke Universitet Nijmegen, Netherlands 1978.

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EGGLESTON, EM, Fear, Favour or Affection. Aborigines and the Criminal Law in Victoria, South Australia and Western Australia, Australian National University Press, Canberra, 1976.

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ELLIS, VR, Trucanini, Australian Institute of Aboriginal Studies, Canberra, 1981.

EVANS, R, SANDERS, K & CRONIN, K, Exclusion, Exploitation and Extermination: Race Relations in Colonial Queensland, Australian and New Zealand Book Co, Sydney, 1973.

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GALE, F (ed) We are Bosses Ourselves: The Status and Role of Aboriginal Women Today, Australian Institute of Aboriginal Studies, Canberra, 1983.

GALE, F & WUNDERSITZ, J, Adelaide Aborigines. A case study of urban life 1966-1981, Australian National University Press, Canberra, 1982.

HAMILTON, A, 'Aboriginal Women: The Means of Production' in J Mercer (ed) The Other Half, Penguin, Sydney, 1975, 167.

HASSELL, K, The Relations Between the Settlers and Aborigines in South Australia, 1836-1860, Libraries Board of South Australia, Adelaide, 1966.

HIATT, LR, Kinship and Conflict, Australian National University, Canberra, 1965.

HENNESSY, P, 'Aboriginal Customary Law and the Australian Criminal Law: An Unresolved Conflict' in B Swanton (ed) Aborigines and Criminal Justice, Australian Institute of Criminology, Canberra, 1984, 336.

HOCKING, B, 'Is Might Right? An Argument for the Recognition of Traditional Aboriginal Title to Land in the Australian courts' in E Olbrei (ed) Black Australians: The Prospects for Change, Students Union, James Cook University, Townsville, 1982, 207.

HOCKING, B, 'Aboriginal Land Rights: War and Theft' (1985) 20(9) Australian Law News 22

HOOKEY, J, 'Settlement and Sovereignty' in P Hanks and B Keon-Cohen (ed) Aborigines and The Law, George Allen and Unwin, Sydney, 1984, 1.

KABERRY, PM, Aboriginal Woman, Sacred and Profane, Border Press, New York, 1973.

KIRBY, MD, 'Should we Recognise Aboriginal Tribal Laws?' in Reform the Law, Oxford University Press, Melbourne, 1983, 121.

KOLIG, E, The Silent Revolution, Institute for the Study of Human Issues, Philadelphia, 1981.

LESTER, GS, 'The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument', Ph D Thesis, York University, 2 vols, 1981.

LESTER, GS, Inuit Territorial Rights in the Canadian Northwest Territories, Tungavik Federation of Nunavut, Ottawa, 1984.

LOGAN JACK, R, North West Australia, Simpkin Marshall, Hamilton Kent and Co Ltd, London, 1921.

LOOS, N, Invasion and Resistance: Aboriginal-European Relations on the North Queensland Frontier 1861-1897, Australian National University Press, Canberra, 1982.

LOVEDAY, P (ed) Service Delivery to Outstations, Australian National University, North Australia Research Unit, Darwin, 1982.

LYONS, G, 'Official Policy towards Victorian Aborigines 1957-1974' (1983) 1/2 Aboriginal History '61!.

McINTRYE, G, 'Aboriginal Land Rights -- a Definition at Common Law' in E Olbrei (ed) Black Australians: The Prospects for Change, Students Union, James Cook University, Townsville, 1982, 207.

MADDOCK, K, 'Aboriginal Customary Law' in P Hanks & B Keon-Cohen (ed) Aborigines and the Law, George Allen & Unwin, Sydney, 1984, 212

NEEDHAM, JS, White and Black in Australia, National Missionary Council for Australia, London, 1935.

PETERSON, N, 'Buluwandi: A Central Australian Ceremony for the Resolution of Conflict', in RM Berndt (ed) Australian Aboriginal Anthropology, University of Western Australia Press, Perth, 1970, 200.

REECE, RHW, Aborigines and Colonists: Aborigines and Colonial Society in New South Wales in the 1830s and 1840s, Sydney University Press, Sydney, 1974.

REYNOLDS, H, Aborigines and Settlers: The Australian Experience 1788-1939, Cassell Australia,Sydney, 1972.

RILEY, R, 'Aboriginal Law and its Importance for Aboriginal People' in HW Finkler (comp)Papers of the Symposium on Folk Law and Legal Pluralism, Xlth International Congress of Anthropological and Ethnological Sciences, Vancouver, Canada, August 19-23, 1983, Ontario, 1983, 1110.

RYAN, L, The Aboriginal Tasmanians, University of Queensland Press, St Lucia, 1981.

SANSOM, B, The Camp at Wallaby Cross, Australian Institute of Aboriginal Studies, Canberra, 1980.

SANSOM, B, 'The Aboriginal Commonality' in RM Berndt (ed) Aboriginal Sites, Rights and Resource Development, University of Western Australia Press, Perth, 1982, 117.

SCHAPPER, H, Aboriginal Advancement to Integration: Conditions and Plans for Western Australia, Australian National University Press, Canberra, 1970.

SHARP, RL, 'People without Politics' in VF Ray (ed) Systems of Political Control and Bureaucracy in Human Societies, University Of Washington Press, Seattle, 1958, 1.

STANNER, WEH, 'Durmugam: A Nangiomeri' (1959) in WEH Stanner, White Man Got No Dreaming, Australian University Press, Canberra, 1979, 67.

STANNER, WEH, 'Religion, Totemism and Symbolism' (1962), in WEH Stanner, White Man Got No Dreaming, Australian University Press, Canberra, 1979, 106.

STANNER, WEH, 'The History of Indifference thus Begins' (1963) in WEH Stanner, White Man Got No Dreaming, Australian National University Press, Canberra, 1979, 165.

STREHLOW, TGH, Aranda Traditions, repr, Melbourne University Press, Melbourne, 1968.

STREHLOW, TGH, 'Geography and the Totemic Landscape in Central Australia: a Functional Study' in RM Berndt (ed) Australian Aboriginal Anthropology, University of Western Australia Press, Perth, 1970, 92.

STREHLOW, TGH, Aboriginal Customary Law, Strehlow Research Foundation, Pamphlet No 5, Adelaide, 1978.

SUTTON, P, 'People with Politics: Management of Land and Personnel on Australia's Cape York Peninsula' in NW Williams and ES Hunn (ed) Resource Managers: North American and Australian Hunter- Gatherers, Westview Press, Colorado, 1982, 155.

THOMSON, D, Donald Thomson in Arnhem Land, Currey O'Neil, South Yarra, Victoria 1983.

WACHON, D, 'Customary Law: The ALRC Discussion Paper' (1981) 6 Legal Services Bulletin 229.

WHEELER, GC, The Tribe and Intertribal Relations in Australia, John Murray, London, 1910.

WILLIAMS, NM, Two Laws: Managing Disputes in a Contemporary Aboriginal Community, un-published, Canberra, 1983.

YOUNG, E, Tribal Communities in Rural Areas, Development Studies Centre, Australian National University, Canberra, 1981.

ABORIGINAL LAND RIGHTS COMMISSION, First Report (Commissioner, Justice EA Woodward) AGPS, Canberra, 1973; Second Report, AGPS, Canberra, 1974.

AUSTRALIAN INSTITUTE OF ABORIGINAL STUDIES, Aborigines and Uranium, Consolidated Report to the Minister for Aboriginal Affairs on the Social Impact of Uranium Mining on the Aborigines of the Northern Territory, AGPS, Canberra, 1984.

AUSTRALIAN LAW REFORM COMMISSION Report No 2, Criminal Investigation, AGPS, Sydney, 1975.

AUSTRALIAN LAW REFORM COMMISSION - AUSTRALIAN INSTITUTE OF ABORIGINAL STUDIES, Report of a Working Seminar on the Aboriginal Customary Law Reference, Sydney, 1983.

BLEAKLEY, JW, The Aboriginals and Half-Castes of Central Australia and North Australia, Commonwealth of Australia, Parl Paper 21 / 1929.

COOMBS, HC, The Role of the National Aboriginal Conference, AGPS, Canberra, 1984.

COMMISSION OF INQUIRY INTO POVERTY, Research Report, Aboriginals and Islanders in Brisbane (JW Brown, R Hirschfield, D Smith) AGPS, Canberra, 1974.

COMMISSION OF INQUIRY INTO POVERTY, Research Report, A Study of Aboriginal Poverty in Two Country Towns, AGPS, Canberra, 1975.

COMMISSION OF INQUIRY INTO POVERTY, Second Main Report, Law and Poverty in Australia (Commissioner: R Sackville) AGPS, Canberra, 1975.

COMMITTEE OF REVIEW (Chairman: Professor CA Gibb) The Situation of Aborigines on Pastoral Properties in the Northern Territory, AGPS, Canberra, 1973.

COUNCIL FOR ABORIGINAL AFFAIRS, Report on Arnhem Land (HC Coorobs, WEH Stanner & BG Dexter), AGPS, Canberra, 1975.

DEPARTMENT OF ABORIGINAL AFFAIRS, Town Campers Assistance Program, Annual Report, AGPS, Canberra, 1985.

DEPARTMENT OF ABORIGINAL AFFAIRS, Aboriginals in Australia Today, AGPS, Canberra, 1981.

DEPARTMENT OF ABORIGINAL AFFAIRS, Aboriginal Social Indicators 1984, AGPS, Canberra, 1984.

HAWKINS, G & MISNER, R, Restructuring the Criminal Justice System in the Northern Territory (3rd Report), Canberra, 1974.

HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON ABORIGINAL AFFAIRS, Present Conditions of Yirrkala People, AGPS, Canberra, 1974.

HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON ABORIGINAL AFFAIRS, Interim Report, Alcohol Problems with Aboriginals, Northern Territory Aspects, AGPS, Canberra, 1976.

HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON ABORIGINAL AFFAIRS, Aboriginal Legal Aid, AGPS, Canberra, 1980.

HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON ABORIGINAL AFFAIRS, Strategics to Help Overcome the Problems of Aboriginal Town Camps, AGPS, Canberra, 1982.

INITIAL CONFERENCE OF COMMONWEALTH AND 'STATE ABORIGINAL AUTHORITIES, Aboriginal Welfare, AGPS, Canberra, 1937.

INQUIRY INTO ABORIGINAL LEGAL AID (JP Harkins), Report vol I General Issues, vol 2 Legal Aid in the States, vol 3 Appendixes, AGPS, Canberra, 1985.

NATIONAL POPULATION INQUIRY, Population & Australia. A Demographic Analysis and Projection, AGPS, Canberra, 1975

O'DONOGHUE, L, Proposal for an Aboriginal and Islander Consultative Organisation, Commonwealth Government Printer, Canberra, 1985.

SENATE STANDING COMMITTEE ON CONSTITUTIONAL AND LEGAL AFFAIRS, Two Hundred Years Later ... Report on the Feasibility of a Compact or 'Makarrata' between the Commonwealth and Aboriginal People, AGPS, Canberra, 1983.

ABORIGINAL CHILDREN'S RESEARCH PROJECT (NSW), Discussion Paper No 3, Assimilation and Aboriginal Child Welfare - the NSW Community Welfare Bill, Sydney, 1983.

ABORIGINAL CHILDREN'S RESEARCH PROJECT (NSW), Draft Principal Report, Sydney, 1982.

DEPARTMENT OF HEALTH, 'Aboriginal Mortality in NSW Country Regions 1980/81' (unpublished) Sydney, October 1983.

SELECT COMMITTEE ON THE CONDITIONS OF THE ABORIGINALS, Report, Votes & Proceedings (Legislative Council) 1845.

SELECT COMMITTEE ON THE NATIVE POLICE FORCE, Report, Votes and Proceedings (Legislative Assembly) 1856-7.

SELECT COMMITTEE ON THE NATIVE POLICE FORCE AND THE CONDITIONS OF THE ABORIGINALS GENERALLY, Report, Votes & Proceedings, 1861.

SELECT COMMITTEE OF THE LEGISLATIVE COUNCIL ON THE ABORIGINALS, Report, SA Parl Papers No 165, 1980.

SELECT COMMITTEE ON THE ABORIGINALS, Report, Votes and Proceedings (Legislative Council) no D8, 1859.

ROYAL COMMISSION APPOINTED TO INVESTIGATE, REPORT AND ADVISE UPON MATTERS IN RELATION TO THE CONDITION AND TREATMENT OF ABORIGINES, Report, WA Parl Paper 2/1935.

HOUSE OF COMMONS, Select Committee on Aborigines (British Settlements), Report, House of Commons Parl Paper 425, 1837.

TASK FORCE THREE, Federal Administration and Structure of Indian Affairs, Final Report to the American Indian Policy Review Commission, US Government Printing Office, Washington, 1976.

NATIONAL TRACHOMA AND EYE HEALTH PROGRAM, Report, Royal Australian College of Opthalmologists, Sydney, 1980.

AGUDA, A, 'Discriminatory Statutory Provisions and Fundamental Rights Provisions of the Constitutions of Botswana, Lesotho and Swaziland' (1972) 89 South African Law Journal 299.

ALTMAN, JC, Aborigines and Mining Royalties in the Northern Territory, Canberra, Australian In-stitute of Aboriginal Studies, 1983.

ANDERSON, E, 'The Indigenous People of Saskatchewan: Their Rights under International Law'(1981) 7 American Indian Journal No I, 4.

ANNIS, M, 'Indian Education: Bilingual Education - A Legal Right for Native Americans'(1982) 10 American Indian Law Review 333.

BARSH, RL, 'The Indian Child Welfare Act of 1978: A Critical Analysis' (1980) 31 Hastings Law Journal 1237.

BARTHOLOMEW, GW, 'Recognition of Polygamous Marriages in America' (1964) 13 International and Comparative Law Quarterly 1022.-

BAYEFSKY, AF, 'The Human-Rights Committee and the Case of Sandra Lovelace' [1982]Canadian Yearbook of International Law 244.

BELL, D & DITTON, P, Law: The Old and the New Aboriginal Women in Central Australia Speak Out, 2nd edn, Aboriginal History, Canberra, 1984.

BENNETT, G, Aboriginal Rights in International Law, London, Royal Anthropological Institute of Great Britain and Northern Ireland, Occasional Paper 37, 1978.

BERNDT, RM, (ed) Aborigines and Change: Australia in the '70s, Australian Institute of Aboriginal Studies, Canberra, 1977.

BEYTAGH, FX, 'Equality under the Irish and American Constitutions: A Comparative Analysis’ [1983] Irish Jurist 56.

BROWNLIE, I, Principles of Public International Law, Oxford, Clarendon Press, 3rd edn, 1979.

CAPOTORTI, F, Special Rapporteur, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, UN Doc E/CN 4 Sub 2/384/Rev 1, 1979.

CAPOTORTI, F, 'I Diritti dei Membri di Minoranze: verso una Dichiarazione delle Nazione Unite?' (1981) 64 Rivista di Diritto Internazionale 30.

CASSESE, A, 'The Self-Determination of Peoples' in L Henkin (ed) The International Bill of Rights. The Covenant on Civil trod Political Rights, Columbia University Press, New York,1981, 92.

CHARLESWORTH, M, The Aboriginal Land Rights Movement, 2nd edn, Hodja Educational Re-sources 'Cooperative, Richmond, 1984.

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COHEN, C, 'Affirmative Action and the Rights of the Majority', in C Fried (ed) Minorities: Community and Identity, Springer-Verlag, Berlin, 1983, 353. COHEN, FS, Handbook of Federal Indian Law, 1982 edn, Michie, Charlottesville.

COMAROFF, JL & ROBERTS, S, Rules and Processes, University of Chicago Press, Chicago, 1981.

COTRAN, E, 'The Place and Future of Customary Law in East Africa', in East African Law Today, British Institute of International and Comparative Law, Stevens and Sons, London, 1966, 72.

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DAVIES, B, 'Implementing the Indian Child Welfare Act' (1982) 16 Clearinghouse Review 179.

DAVIES, M, 'Aboriginal Rights in International Law: Human Rights' in B Morse (ed) Aboriginal Peoples and the Law: Indians, Metis and Inuit Rights in Canada, Carleton University Press, Ottawa, 1985, 745.

DE MONTIGNY, Y, 'L'ONU et la protection internationale des minorities depuis 1945' (1978) 13 La Revue Juridique Themis 389.

DINSTEIN, Y, 'The Right to Life, Physical Integrity and Liberty' in L Henkin (ed) The International Bill of Rights: The Covenant on Civil and Political Rights, Columbia University Press, New York, 1981, 114.

EDWARDS, R (ed) The Preservation of Australia's Aboriginal Heritage, Australian Institute of Aboriginal Studies, Canberra, 1975.

EGGLESTON, E, Fear Favour or Affection. Aborigines and the Criminal Law in Victoria, South Australia and Western Australia, Australian National University Press, Canberra, 1976.

ELKIN, AP, The Australian Aborigines, rev edn, Angus and Robertson, Sydney, 1979.

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KATZ, AM, 'Benign Preference: An Indian Decision and the Bakke Case' (1977) 25 American Journal of Comparative Law 61 I.

KELLY, JB, 'National Minorities in International Law' (1973)3 Denver Journal of International Law and Policy 253.

KEON-COHEN, B & MORSE, B, 'Indigenous Land Rights in Australia and Canada' in B Hanks & B Keon-Cohen (ed) Aborigines and the Law, George Allen & Unwin, Sydney, 1984, 74.

KLEIN, RM, 'Morton v Mancari: Achieving the Landmark Status Denied De Funis?' (1974) 2 Ohio Northern Law Review 371.

KRYGIER, M, 'Discrimination and Anti-Discrimination Law, Affirmative Action and Human Rights' (1980) 24 Quadrant 4.

LERNER, N, The UN Convention on the Elimination of All Forms of Racial Discrimination, Sijthoff & Noordhoff, Alphen van den Rijn, 2nd edn, 1980.

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LYONS, N, 'Constitutional Issues in Native Law' in B Morse (ed) Aboriginal Peoples and the Law:Indian, Metis and Inuit Rights in Canada, Carleton University Press, Ottawa, 1985, 408.

McINNES, S, 'The Inuit and the Constitutional Process: 1978-81' in IAL Getty & AS Lussier (ed)As Long as the Sun Shines and Water Flows. A Reader in Canadian Native Studies, University of British Columbia Press, Vancouver, 1983, 317.

McKEAN, WA, Equality and Discrimination under International Law, Oxford, Clarendon Press,1983.

MADDOCK, K, 'Two Laws in One Community' in RM Berndt (ed) Aborigines and Change: Australia in the '70s, Australian Institute of Aboriginal Studies, Canberra, 1977, 13.

MADDOCK, K, 'Aboriginal Land Rights Traditionally and in Legislation: A Case Study' in MC Howard (ed) Aboriginal Power in Australian Society, University of Queensland Press, St Lucia, 1982, 55.

MADDOCK, K, 'Owners, Managers and the Choice of Statutory Traditional Owners by Anthropologists and Lawyers' in N Peterson & M Langton (ed) Aborigines, Land and Land Rights, Australian Institute of Aboriginal Studies, Canberra, 1983, 211.

MADDOCK, K, 'Aboriginal Customary Law' in P Hanks & B Keon-Cohen (ed) Aborigines and the Law, George Allen & Unwin, Sydney, 1984, 212.

MAROUSEK, LA, 'The Indian Child Welfare Act of 1978- Provisions and Policy' (1980) 24 South Dakota Law Review 98.

MEGGITT, M J, Desert People. A Study of the Walbiri Aborigines of Central Australia, Angus and Robertson, Melbourne, 1974.

MODEEN, T, The International Protection of National Minorities in Europe, Acta Academiae Aboensis, Ser A, Vol 37, No 1, 1969.

MORRIS, JHC, Dicey and Morris on the Conflict of Laws, 10th edn, London, Stevens, 1980.

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NETTHEIM, G, 'The Relevance 'of International Law' in P Hanks & B Keon-Cohen (ed) Aborigines and the Law, George Allen and Unwin, Sydney, 1984, 50.

PETERSON, N, Aboriginal Land Rights: A Handbook, Australian Institute of Aboriginal Studies, Canberra, 1981.

PETERSON, N & LANGTON, M, Aborigines, Land and Land Rights, Australian Institute of Aboriginal Studies, Canberra, 1983.

POLLIS, A & SCHWAB, P, 'Human Rights: A Western Construct of Limited Applicability', in A Pollis & P Schwab (ed) Human Rights. Cultural and Ideological Perspectives, Praeger, New York, 1980, 1.

RAMCHARAN, BG, 'Equality and Non-discrimination' in L Henkin (ed) The International Bill of Rights. The Covenant on Civil and Political Rights, Columbia University Press, New York, 1981, 246.

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COUNCIL FOR ABORIGINAL AFFAIRS, (HC Coombs, WEH Stanner, B Dexter) Visit to Yuendemu and Hooker Creek, AGPS, Canberra, 1974.

HOUSE OF REPRESENTATIVES, STANDING COMMITTEE ON ENVIRONMENT AND CONSERVATION, Second Report on the Adequacy of Legislative and Administrative Arrangements for Environmental Protection, AGPS, Canberra, 1981.

SENATE, STANDING COMMITTEE ON CONSTITUTIONAL AND LEGAL AFFAIRS, Two Hundred Years Later, AGPS, Canberra, 1983.

NATIONAL PARKS AND WILDLIFE SERVICE (Director: DA Johnstone) Public Statement, Representations by Hon FJ Walker MP, Minister for Aboriginal Affairs, Sydney, 29 August 1983.

SELECT COMMITTEE OF THE LEGISLATIVE ASSEMBLY UPON ABORIGINES (Chairman: M Keane MP) Report: Aboriginal Land Rights and Sacred and Significant Sites, NSW Parl Paper 2, 1980.

ABORIGINAL LAND COMMISSIONER, Report to the Administrator of the Northern Territory, Closure of the Seas: Milingimbi, Crocodile Islands and Glyde River Area, NT Govt Printer, Darwin, 1983.

PREMIERS DEPARTMENT, Capricornia Section: Investigation of Tidal Lands and Tidal Waters of Queensland for the Declaration of a Marine Park, Vol 2, Draft Zoning Plans, Environment Science and Services, Spring Hill, August 1984.

ARID LANDS REVIEW STEERING COMMITTEE, .4 Proposal for Future Establishment, Management and Regulation of Public Rights of Access and Way Over Outback Lands, Department of Lands, Adelaide, 1984.

DEPARTMENT OF ENVIRONMENT AND PLANNING, Report of the Interdepartmental Working Party on Aboriginal Hunting (Chairman: D Barrington) unpublished, Adelaide, 23 April 1985.

DEPARTMENT OF ENVIRONMENT (SA), Discussion Paper, Taking of Protected Wildlife by Aborigines (DE 1018/72) 1983.

SELECT COMMITTEE OF THE HOUSE OF ASSEMBLY (SA) ON THE MARALINGA TJARUTJA LAND RIGHTS BILL, Report, SA Parl Paper 155, 1983.

ABORIGINAL LAND INQUIRY (Commissioner: P Seaman Qc) Discussion Paper, Perth, January, 1984.

ABORIGINAL LAND INQUIRY (Commissioner: P Seaman Qc) Report, Perth, September 1984.

JAMES BAY AND NORTHERN QUEBEC AGREEMENT, Editeur Officiel du Quebec, Montreal, 1976.

MUNRO, Hon JC, Minister for Indian Affairs and Northern Development, Report on the Implementation of the Provisions of the James Bay and Northern Quebec Claims Settlement Act 1977 for the period of ending March 31, 1980, Ottawa, 1980.

PEARSE, PH, Commission on Pacific Fisheries Policy, Final Report, Turning the Tide, 'A New Policy for Canada's Pacific Fisheries, Vancouver, September 1982.

WESTERN ARCTIC CLAIM, The Inuvialuit Final Agreement Entitlement (COPE), Editeur Officiel du Quebec, Montreal, 1984.

LIBRARY COMMITTEE OF THE COMMONWEALTH PARLIAMENT, Historical Records of Australia, Series 1, repr, AGPS, Canberra, 1971.

BARBER, L & O'CONNOR, CM, 'The 1984 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities' (1985) 79 American Journal of International Law, 168.

BARSH, R, 'Indigenous Policy in Australia and North America', unpublished paper, December 1983.

BELL, D, 'Questions of Implementation and Review' in Australian Law Reform Commission Australian Institute of Aboriginal Studies, Report of, Working Seminar in the Aboriginal Customary Law Reference, Sydney, 1983, 89.

BRADY, M, Children Without Ears. Petrol Sniffing in Australia, Drug and Alcohol Services Council, Parkside, 1985.

CUMMINGS, P, 'Canada's North and Native Rights' in BW Morse (ed) Aboriginal Peoples and the Law: Metis and Inuit Rights in Canada, Carleton University Press, Ottawa, 1985, 695.

FUA, C & LUMSDEN, L, 'Aboriginal Alcohol Abuse and Crime in Queensland' in B Swanton (ed) Aborigines and Criminal Justice, Australian Institute of Criminology, Canberra, 1984, 6.

GIBBS, Sir H, 'The Constitutional Protection of Human Rights' (1982) 9 Monash Law Review 1.

HEALEY, B, TURPIN, T & HAMILTON M, 'Aboriginal Drinking: A Case Study in Inequality and Disadvantage' (1985) 20 Australian Journal of Social Issues 191.

LANE, PH, A Manual of Australian Constitutional Law, 3rd edn, Law Book Co, Sydney, 1984.

LUMB, RD & RYAN KW, The Constitution of the Commonwealth of Australia Annotated, 3rd edn, Butterworths, Sydney, 1981.

McCORQUODALE, J, 'Alcohol and Anomie: The Nature of Aboriginal Crime' in B Swanton (ed) Aborigines and Criminal Justice, Australian Institute of Criminology, Canberra, 1984, 17.

MORSE, BW, 'The Resolution of Land Claims' in BW Morse (ed), Aboriginal Peoples and the Law: Indian Metis and Inuit Rights in Canada, Carleton University Press, Ottawa, 1985, 617.

O'CONNOR, R, 'Alcohol and Contingent Drunkenness in Central Australia' (1984) 19 Australian Journal of Social Issues, 173.

ROSE, DB, Dingo Makes Us Human: Being in Purpose in Australian Aboriginal Culture PHD Thesis, Bryn Mawr College, Bryn Mawr, 1984.

STANNER, WEH, 'Religion, Totemism and Symbolism' (1962) in WEH Stanner, White Man Got No Dreaming, Australian National University Press, Canberra, 1979, 106.

STANNER, WEH, 'Continuity and Change' (1958) in WEH Stanner, White Man got No Dreaming, Australian National University Press, Canberra, 1979, 41.

TERRY, J, 'Damned Wilderness and Special Laws' (1983) 8 Aboriginal Law Bulletin 2.

AUSTRALIAN INSTITUTE OF CRIMINOLOGY, Seminar on Criminal Investigation Bill (Cth), Australian Institute of Criminology Canberra, 1982.

AUSTRALIAN LAW REFORM COMMISSION, Aboriginal Customary Law Reference, Research Paper 15 (M Fisher) Aboriginal Customary Law: The Recognition of Traditional Hunting Fishing and Gathering Rights, ALRC, Sydney, May 1984.

AUSTRALIAN LAW REFORM COMMISSION REPORT No 11, Unfair Publication: Defamation and Privacy, AGPS, Canberra, 1979.

DEPARTMENT OF SOCIAL SECURITY, Aboriginal Access to Departmental Programs and Services, unpublished, Canberra, 1983.

HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON ABORIGINAL AFFAIRS, Aboriginal Legal Aid, AGPS, Canberra, 1980.

INQUIRY INTO ABORIGINAL LEGAL AID (JP Harkins) Report vol 1, General Issues, AGPS, Canberra, 1985.

SENATE STANDING COMMITTEE ON CONSTITUTIONAL AND LEGAL AFFAIRS, Report on Aboriginals and Torres Strait Islanders on Queensland Reserves, AGPS, Canberra, 1978, 3.

SENATE STANDING COMMITTEE ON CONSTITUTIONAL AND LEGAL AFFAIRS, Two Hundred Years Later .... AGPS, Canberra, 1983.

STANDING COMMITTEE OF SOCIAL WELFARE ADMINISTRATORS, Working Party Report, Aboriginal Fostering and Adoption, Review of State and Territory Principles, Policies and Practices, Sydney, October 1983.

HOUSE OF COMMONS, SPECIAL COMMITTEE ON INDIAN SELF-GOVERNMENT (Chairman: K Penner) Report, Ottawa, 1983.

ABORIGINAL CUSTOMARY LAW COMMITTEE (Chairman: Judge JM Lewis) Children and Authority in the North West, Adelaide, 1984.

O'DONOGHUE, L, Proposal for an Aboriginal and Islander Consultative Organisation, Commonwealth Government Printer, Canberra, 1985.

SECRETARIAT FOR NATIONAL ABORIGINAL AND ISLANDER CHILD CARE, First Interim Report on the Aboriginal Fostering and Adoption Principles and its Implementation in the States of Australia, Fitzroy, Victoria, 1985.

Community	Drunk	Disorderly	Gambling	Assault	Possessing alcohol in
					breach of regs
Kowanyama	$5	$10	$5 or $10	$10
Edward River	$40	$40	-		$40 or 3 week ban from beer canteen.

Yarrabah	$2	$10 or $20	-		$10
Palm Island	$20-$40	$20-$40	-	$20-$40	$20-$40
		If repeat		If repeat
		offenders		offenders
		a number		a number
		of days in		of days in
		lock-up		lock-up

Venue	Date	Transcript
Adelaide:	Tuesday, 17 March 1981	1-123
Pt Augusta:	Wednesday, 18 March 1981	124-208
Perth:	Friday, 20 March 1981	209-286
Strelley:	Monday, 23 March 1981	287-327
	Tuesday, 24 March 1981	328-446
Broome:	Wednesday, 25 March 1981	447-529
La Grange:	Thursday, 26 March 1981	530-565
Derby:	Friday, 27 March 1981	566-624
One Arm Point:	Saturday, 28 March 1981	625-661
Fitzroy Crossing:	Monday 30 March 1981	662-684
	Tuesday, 31 March 1981	685-783
	Wednesday, 1 April 1981	784-877
Darwin:	Friday, 3 April 1981	878-991
Peppimenarti:	Monday, 6 April 1981	992-1034
Maningrida:	Tuesday, 7 April 1981	1035-1065
	Wednesday, 8 April 1981	1066-1138
Nhulunbuy:	Thursday, 9 April 1981	1139-1220
	Friday, 10 April 1981	1221-1276
Alice Springs:	Monday, 13 April 1981	1277-1346
Amata:	Tuesday, 14 April 1981	1409-1435
	Wednesday, 15 April 1981	1436-1449
Yuendumu:	Thursday, 16 April 1981	1450-1503
Willowra:	Tuesday, 21 April 1981	1504-1584
Mt Isa:	Thursday, 23 April 1981	1585-1666
Doomadgee:	Thursday, 23 April 1981	1667-1718
Mornington Island:	Friday, 24 April 1981	1719-1787
	Saturday, 25 April 1981	1788-1827
Kowanyama:	Monday 27 April 1981	1828-1962
	Tuesday, 28 April 1981	1963-1998
Aurukun:	Wednesday, 29 April 1981	1999-2012
	Thursday, 30 April 1981	2013-2079
	Friday, 1 May 1981	2080-2095
Weipa South:	Friday, I May 1981	2096-2134
Cairns:	Tuesday, 5 May 1981	2135-2204
Townsville:	Tuesday, 5 May 1981	2205-2272
Rockhampton:	Wednesday, 6 May 1981	2273-2364
Brisbane:	Thursday, 7 May 1981	2365-2435
Cherbourg:	Friday, 8 May 1981	2436-2482
Lismore:	Monday, 11 May 1981	2483-2535
Moree:	Wednesday, 13 May 1981	2536-2613
Sydney:	Friday, 15 May 1981	2614-2692
Canberra:	Monday, 18 May 1981	2693-2744
Melbourne:	Wednesday, 20 May 1981	2745-2790
Launceston:	Thursday, 21 May 1981	2791-2826
Yirrkala:	Tuesday, 10 November 1981	2827-2860
	Wednesday, 11 November 1981	2861-2883
Alice Springs:	Monday, 11 October 1982	2884-2943
Kalgoorlie:	Friday, 27 May 1983	2944-3029

Strelley:	Tuesday, 24 March 1981	412-416
Darwin:	Friday, 3 April 1981	961-990
Alice Springs:	Monday, 13 April 1981	1347-1408
Yuendumu:	Thursday, 16 April 1981	1462-1471
Kowanyama:	Monday, 27 April 1981	1888-1945

Alice Springs	Monday, 13 April 1981	1
Amata	Tuesday, 14 April 1981	47-59
	Wednesday, 15 April 1981	59-66
Aurukun	Tuesday, 28 April 1981	67-91
Broome	Wednesday, 25 March 1981	92-107
Derby	Friday, 27 March 1981	108-115
Doomadgee	Thursday, 23 April 1981	116
Fitzroy Crossing	Tuesday, 31 March 1981	117-138
Bayulu	Wednesday, I April 1981	139-148
Junjuwah	Tuesday, 21 April 1981	149-163
Kowanyama	Tuesday, 28 April 1981	164-198
La Grange	Thursday, 26 March 1981	199-227
Maningrida	Wednesday, 8 April 1981	228-244
One Arm Point	Saturday, 28 April 1981	245-263
Peppimenarti	Monday, 6 April 1981	264-281
Strelley	Monday, 23 March 1981	282-299
Turkey Creek	Wednesday, 1 April 1981	300-318
Yuendumu	Thursday, 16 April 1981	319-334

(I)	Research Paper, The Nature of Customary Law (Bryan Keon-Cohen) December 1978.
(ii)	Working paper, Policing in Aboriginal Communities (Daryl Gunter) December 1978.
(iii)	Working paper, Punishment in Aboriginal Communities (Daryl Gunter) March 1979.
(iv)	Research Paper, American Indian Tribal Courts (Paul Peters) May 1979.
(v)	Research Paper, Basic Issues (Bryan Keon-Cohen)June 1979.
(vi)	Research Paper, Solutions: The Field of Choice (Bryan Keon-Cohen) July 1979.
(vii)	Research Paper, Demography of Aboriginals and Torres Strait Islanders (Daryl Gunter) August 1979.
(viii)	Research Paper, Queensland's Aboriginal Courts (Bryan Keon-Cohen) September 1979.
(ix)	Working paper, Historical Development (prepared for Discussion Paper) (Bryan Keon-Cohen) November 1979.
(x)	Research Paper, The Position of Customary Law in Tanzania (Paul Peters) December 1979.
(xi)	Research Paper, The Canadian Experience (Paul Peters) February 1980.
(xii)	Overview of A CL Public Hearings (Peter Hennessy) June 1981.
(xiii)	Working paper, Aboriginal/Police Relations (Peter Hennessy) September 1981.
(xiv)	Working paper, Aboriginal Land Rights (Peter Hennessy) September 1981.

RP 1	Promised Marriage in Aboriginal Society (Peter Hennessy) April 1982.
RP 2	The Recognition of Aboriginal Customary or Tribal Marriage: General Principles (James Crawford) March 1982.
RP 3	The Recognition of Aboriginal Tribal Marriage: Areas for Functional Recognition (James Crawford and Peter Hennessy) June 1982.
RP 4	Aboriginal Customary Law: Child Custody, Fostering and Adoption (James Crawford and Fiona Howarth) August 1982.
RP 5	Aboriginal Customary Law: Traditional and Modem Distributions of Property (Peter Hennessy) August 1982.
RP 6	Aboriginal Customary Law and the Substantive Criminal Law (James Crawford and Chris Kirkbright) March 1983.
RP 6A	Appendix: Cases on Traditional Punishments and Sentencing (James Crawford and Peter Hennessy) September 1982.
RP 8	Aboriginal Customary Law: A General Regime of Recognition (James Crawford) December 1982.
RP 9	Separate Institutions and Rules for Aboriginal People: Pluralism and Reverse Discrimination (James Crawford) November 1982.
RP 10	Separate Institutions and Rules for Indigenous Peoples - International Prescriptions and Proscriptions (James Crawford) November 1982.
RP 11/12	Aboriginal Customary Law and Local Justice Mechanisms: Principles, Options and Proposals (Peter Hennessy) February 1984.
RP 13	Aboriginal Customary Law: Problems of Evidence and Procedure (Peter Hennessy) March 1983.
RP 14	The Proof of Aboriginal Customary Law (James Crawford) April 1983.
RP 15	Aboriginal Customary Law: The Recognition of Traditional Hunting and Fishing Rights (Mary Fisher) May 1984.

1.	ALRC, Discussion Paper No 17, Aboriginal Customary Law - Recognition ?, November 1980.
2.	ALRC, Discussion Paper No 18, Aboriginal Customary Law - Marriage, Children and the Distribution of Property, August 1982.
3.	ALRC, Discussion Paper No 20, Aboriginal Customary Law - The Criminal Law, Evidence and Procedure, March 1984.

	Para
Convention on the Prevention and Punishment of the Crime of Genocide, 1950
Art II	171
European Convention of Human Rights and Fundamental Freedoms, 1950
Art 3	187, 189
Art 8	185
Art 14	147
Art 63	186, 187
International Convention on the Elimination of all Forms of Racial
Discrimination, 1966	128, 152, 156 158, 173, 182
Art 1	149, 150, 153, 156, 182
Art 2	149, 150, 155
Art 3	171
Art 5	149, 150, 155
International Covenant on Civil and Political Rights, 1966	158, 683
Art 1	172
Art 2	191
Art 3	191,818
Art 6	180, 192
Art 7	126, 170, 180, 187
Art 8	180
Art 11	180
Art 14	180, 193, 566, 600, 807, 830
Art 15	180
Art 23	180, 191,192-3, 261-2
Art 24	180, 261
Art 26	180, 191
Art 27	175, 176, 177, 178 181,
	184, 185, 186, 191, 192, 221
Art 40	170
International Covenant on Economic Social and Cultural Rights, 1966	181
Art 9	181
Art 10	181
Art 11	181
Art 15	181
International Labour Organisation, Convention 107 concerning the Protection and Integration of Indigenous and other Tribal and Semi-tribal Populations in Independent Countries, 1957	174
Art 1	173
Art 4	148, 173
Art 7	148, 173-4
Art 8	148, 173
Art 11	155
Art 13	148, 173
Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970	470
United Nations Convention on the Suppression and Punishment of the Crime of Apartheid, 1974
Article II	171
United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1980	182, 263, 595, 656
Art 2	182
Art 16	182, 261-2, 268
Universal Declaration of Human Rights, 1948	172
Treaty of Waitangi, 1841	800
Torres Strait Treaty, 1978	79, 942, 947, 948, 957,
	967, 979, 985
Art I	943
Art 10	943
Art 11	943, 957
Art 12	943
Art 13	943
Art 14	943, 979
Art 15	943
Art 17	943
Art 18	943
Art 19	943, 945
Art 20	982

Part I:	Introduction
Part II:	General Principles
Part III:	Marriage, Children and Family Property
Part IV:	Criminal Law and Sentencing
Part V:	Evidence and Procedure
Part VI:	Justice Mechanisms in Aboriginal Communities
Part VII:	Aboriginal Hunting, Fishing and Gathering Rights
Part VIII:	Summary of Recommendations and their Implementation

Indigenous Law Resources

Australian Law Reform Commission (ALRC) --- "The Recognition of Aboriginal Customary Laws [Volume 2]" [1986] IndigLRes 2