Aborigional Law

Aboriginal customary law and European law have been at odds since the first years of the European invasion, but only recently has the clash come into the open. Stuart MacMillan of the Aboriginal Resource and Development Services in the Northern Territory says that remote Aboriginal communities there and in Western Australia, South Australia and Queensland see no reason why they should submit to "whitefella law".

The governments of the Northern Territory and Western Australia are investigating how indigenous law can be incorporated into state law. Chris Sidoti of the Human Rights Council of Australia says: "Some people would say that human rights runs opposite to Aboriginal law, others that it provides a universal standard to which other legal traditions must adapt. Customary law can't remain immutable. The problem for those trying to bring the two systems into line is that human rights law derives from a western legal tradition which frequently contradicts Aboriginal law.

Colin McDonald, a Darwin barrister and expert in customary law, says that on such issues Australia's legal system may simply have to bite the bullet and go against the norms of international human rights.

Aboriginal women have often claimed that the law has been slanted to support the rights of indigenous men over women.

Lowitja O'Donoghue, who formerly chaired the government's Aboriginal affairs body ATSIC, believes that Australian law should be more aggressive in such cases. Some aspects of Aboriginal law are falling out of practice. Chris Sidoti believes that whatever balance is struck will be as distinct from traditional European law as it is from traditional Aboriginal law. "For traditional people, being put in jail is more inhuman than spearing, and any unified law would have to recognise that.

Aboriginal Customary Law

The High Court did, however, conclude in that case (a conclusion confirmed in WA v Commonwealth, Wororra Peoples v WA and Teddy Biljabu and others v WA, High Court, March 16 1995) that some Aboriginal land law (that which attracted the status of 'native title') survived the colonisation process. What is far less certain is the fate of Aboriginal customary laws that were not concerned with title to land. Did traditional laws on subjects such as family relationships, title to goods, community justice mechanisms, inheritance and criminal law survive colonisation? If native title survived, why didn't other property law? Why didn't any traditional laws retain their credence? One can conclude with confidence that colonisers had little regard for indigenous law. Recognition must be given ... to the existence (and survival) of customary law. As Australian society examines socially just ways of dealing with its indigenous peoples, and as Aboriginal and Torres Strait Islander peoples continue to demand the right of more culturally appropriate responses, the importance of customary law cannot be underestimated (Social Justice Commissioner, 1995: |P 31).

In 1992 the Commonwealth, in implementing recommendation 219 of the Royal Commission into Aboriginal Deaths in Custody Report (Royal Commission into Aboriginal Deaths in Custody, 1991), requested a further report be prepared which outlined the Commonwealth government's progress on the recognition of customary law since a 1986 Australian Law Reform Commission report (infra). Aboriginal defendants, the court confirmed, were subject to the law of New South Wales whether or not both victim and offender were Aborigines and whether or not they were to be subject to traditional law as well. This case confirmed some older legal precedents. For almost two hundred years the Australian courts did not recognise customary law at all. Be that as it may, the general law gave scant regard to customs, rites and traditions of Australia's indigenous peoples. In the landmark land rights decision, Milirrpum v Nabalco Pty Ltd and the Commonwealth (1971) 17 FLR 141 Justice Blackburn of the Northern Territory Supreme Court decided that there had been a system of law in existence in Australian Aboriginal societies in 1788. The impetus provided by the case of Sydney Williams in South Australia is crucial to the later deliberations of the Australian Law Reform Commission and to the story of the recognition of customary law generally.

Not coincidentally, in February 1977, the Australian Law Reform Commission was commissioned to determine

The ALRC concluded that codification is not an appropriate form of recognition of customary law, nor is the exclusion of the general law desirable.

The Walker Case

A member of the Bandjalung people and son of the poet the late Oodgeroo Noonuccal, Walker claimed that Australian parliaments did not have the power to make laws for Aboriginal Australians without their consent. There was no analogy, the former Chief Justice said, between an underlying native title and criminal law. Customary criminal law had been extinguished by general criminal statutes. the aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside.

This case is not an authority, however, for the proposition that no case will recognise customary law. There have been a number of cases (in addition to the Williams case above), where customary law and practice has been applied, albeit in an ad hoc fashion, in the Australian legal system. There is quite a difference, too, between acknowledging traditional practices and granting customary law a status equal to that of the common law applying generally.

Legislating for Customary Law

There is, of course, no constitutional difficulty for Australian parliaments in legislating for customary law at State or federal level. The cornerstone is the Aboriginal and Torres Strait Islander Protection Act (Cth) 1984, available to applicants where State or Territory law is inadequate. an Aboriginal who has entered into a relationship with another Aboriginal that is recognised as traditional marriage by the community or group to which either Aboriginal belongs is married to the other Aboriginal and all relationships shall be determined accordingly.

Why Recognise Customary Law?

There have been a number of reasons advanced for the recognition of some customary law in the Australian legal framework. Aboriginal and Torres Strait Islander customary law shall be recognised and applied to the extent that it continues to be traditionally practised by indigenous people provided that such application by the courts shall be reasonable and in accordance with Australia's international