Home | Databases | WorldLII | Search | Feedback Australian Indigenous Law Reporter

Editors --- "Law Reform Commission of Western Australia - Discussion Paper on Aboriginal Customary Laws - Digest" [2006] AUIndigLawRpr 13; (2006) 10(1) Australian Indigenous Law Reporter 73

ABORIGINAL CUSTOMARY LAWS DISCUSSION PAPER

Law Reform Commission of Western Australia

December 2005

Introduction

Between 1997 and 1999, the Law Reform Commission of Western Australia (the Commission) conducted a comprehensive review of the Western Australian justice system during which it received in excess of 1,600 public submissions.[1] A number of those submissions called for more equitable treatment of Indigenous Australians under the law. The Commission determined that the complex relationships between Indigenous peoples, their customary laws and the broader Western Australian justice system, as well as the cultural sensitivities involved in dealing with these issues, merited an entirely new reference.

The Commission approached the then Attorney-General, the Hon. Peter Foss QC, with the proposal for a new reference to investigate whether there may be a need to recognise the existence of Aboriginal customary laws and have regard to those laws within the Western Australian legal system. Following consultation with Aboriginal[2] groups and communities around the state the Attorney-General and the Commission settled the terms of reference and on 2 December 2000 the matter was formally referred to the Commission for investigation.[3]

Scope of the Reference

The Attorney-General asked the Commission to ‘inquire into and report upon Aboriginal customary laws in Western Australia’. The Commission’s terms of reference for this project were wide-ranging, giving the Commission the freedom to investigate all areas of Aboriginal customary laws in Western Australia other than native title issues and matters addressed under the Aboriginal Heritage Act 1972 (WA). In its research for this reference, the Commission was particularly directed to inquire into:

1. how Aboriginal customary laws are ascertained, recognised, made, applied and altered in Western Australia;

2. who is bound by Aboriginal customary laws and how they cease to be bound; and

3. whether Aboriginal customary laws should be recognised and given effect to; and, if so, to what extent, in what manner and on what basis, and in particular whether:

(a) the laws of Western Australia should give express recognition to Aboriginal customary laws, cultures and practices in the administration or enforcement of Western Australian law;
(b) the practices and procedures of the Western Australian courts should be modified to recognise Aboriginal customary laws;
(c) the laws of Western Australia relating to the enforcement of criminal or civil law should be amended to recognise Aboriginal customary laws; and
(d) whether other provisions should be made for the identification and application of Aboriginal customary laws.

Whilst focusing primarily on matters of Aboriginal customary law falling within state legislative jurisdiction (including matters performing the function of, or corresponding to, criminal law; civil law; local government law; the law of domestic relations; inheritance law; law relating to spiritual matters; and the laws of evidence and procedure), the Commission was also to have regard to relevant Commonwealth legislation and international obligations. In its inquiry into these matters the Commission was further directed to have regard to relevant Aboriginal cultural, spiritual, sacred and gender concerns and sensitivities; and the views, aspirations and welfare of Aboriginal people in Western Australia.

…

Previous Inquiries

This is not the first inquiry on the recognition of Aboriginal customary laws undertaken by an Australian law reform agency. The current study was preceded by important inquiries undertaken by the Australian Law Reform Commission during the 1980s and, more recently, the Northern Territory Law Reform Committee. It is not the intention of the Commission to replicate the work of these inquiries or reproduce their findings in full here; however, where relevant, this Discussion Paper refers to the research and recommendations—and should generally be considered in the context—of these previous inquiries.

…

Structure of this Discussion Paper

Whilst the Commission is mindful that the chosen structure of this Discussion Paper may reflect a more Western conception of law than is commonly found in Aboriginal society, the Commission’s Terms of Reference require it to consider Aboriginal customary laws in the context of the current Western Australian legal system – a system which reflects this state’s colonial heritage. To enhance the opportunities for recognition of Aboriginal customary law within that system, the Commission has chosen to structure this Discussion Paper in a way that legislators and government will more readily understand.

This Discussion Paper is presented in ten parts. Part I provides an overview of the Commission’s research methodology and management of the reference. Part II provides some background and statistical information on Aboriginal peoples in Western Australia and introduces some general findings of the Commission from its consultative visits to Western Australian Aboriginal communities. Part III addresses the question, ‘What is customary law?’ and discusses issues and methods of recognition of Aboriginal customary law in the Western Australian context. Part IV examines the concept of Aboriginal customary law in the international arena, including in the human rights context. Part V deals with the Commission’s substantive investigation into the interaction of Aboriginal people and the criminal justice system and discusses the opportunities for recognition or expression of Aboriginal customary law within that system. The discussion in Part VI deals with Aboriginal customary law and the civil law system, while Part VII examines the significance of Aboriginal customary law in the family context. The recognition of customary law in relation to hunting, fishing and gathering, and associated land access issues is examined in Part VIII; while Part IX examines Aboriginal customary law in relation to rules of evidence and court practice and procedure. Part X explores Aboriginal community governance and discusses what is being done (and what more can be done) to maximise Aboriginal peoples’ participation in the decision-making processes that affect their daily lives …

The full text of the Discussion Paper is available online at <http://www.lrc.justice.wa.gov.au/> .

[1] Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia, Project No 92 (1999).

[2] For the purpose of this paper, reference to Aboriginal people includes reference to Torres Strait Islander people; however, the Commission notes that,according to the 2001 Census, there are less than 900 Torres Strait Islanders currently residing in Western Australia.

[3] The Commission would also like to acknowledge the support of current Attorney-General, the Hon. Jim McGinty, in respect of this reference.