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The recognition of Aboriginal
customary law

Speech by the Hon John von
Doussa, President, Human Rights and Equal Opportunity Commission (HREOC)
at the HREOC and International Lawyers Association (Australian Division)
Workshop, Thursday 20 November 2003

Also available:

• The
  recognition of Aboriginal customary law
  
  Speech delivered by Dr William Jonas AM, Aboriginal and Torres Strait
  Islander Social Justice Commissioner, Human Rights and Equal Opportunity
  Commission (HREOC) at the HREOC and International Lawyers Association
  (Australian Division) Workshop - Recognising Aboriginal and Torres Strait
  Islander customary law: International and domestic implications

I’d like to begin by acknowledging the Gadigal
People, the traditional owners of the land where we are meeting today.

On behalf of the Human Rights and Equal Opportunity Commission,
I would like to welcome you to this workshop on the recognition of Aboriginal
Customary Law.

This is the second workshop that HREOC has co-hosted
with the Australian Division of the International Lawyers Association.
It follows a workshop on the international and domestic implications of
a treaty in Australia with Indigenous peoples that was held in September
2002. On behalf of HREOC I’d also like to begin by thanking Margaret
Brewster, the President of the International Lawyer’s Association,
and Greg Marks of the ILA for making the arrangements and agreeing to
co-host this workshop with HREOC. I think that we are developing a fruitful
and interesting collaboration through these occasional seminars and I
look forward to our future collaborations.

The issue of Aboriginal Customary Law is one of the most
difficult that we face in reconciling Indigenous and non-Indigenous legal
traditions in this country. Aboriginal Customary Law as a shorthand term
refers to Indigenous traditions and systems of law and governance across
all areas of cultural life. This includes what we would classify in the
non-Indigenous legal system as family law, intellectual property, marriage,
criminal law, succession, and systems of dispute resolution.

Like the recognition of native title and the debate about
a treaty, it poses a challenge to the existing relationship of Indigenous
peoples with the State.

Decisions of the High Court, such as Mabo v Queensland
(No.2), Coe v Cth and Walker v NSW, make clear that there
is no room to challenge the assertion of sovereignty by the Crown or for
an alternative body of law to operate independently alongside the Australian
legal system. But this does not exclude the possibility of more limited
recognition, which the Australian Law Reform Commission termed ‘functional
recognition’, or for alternative forms of incorporation of Aboriginal
Customary Law within the mainstream Australian legal system.

Such recognition could take many forms – from formal
legislative recognition and incorporation, or attempts to codify or regulate
the interaction of customary law with non-Indigenous systems; to less
formal recognition such as one off consideration of customary law issues
as a mitigating factor in sentencing matters for criminal cases; to the
even less formal approach of influencing how officials, such as child
welfare workers or police, might exercise their discretion in situations
where customary law might be perceived to be a contributing factor.

How Aboriginal Customary Law can be recognised within
our mainstream legal system poses many challenges. The challenges arise
at two levels. The first is at a theoretical or academic level, for example:

• how do
  we ensure consistency in the circumstances in which Courts accept that
  Aboriginal Customary Law is a relevant factor to be considered in a
  case?
• How, or
  indeed can, Aboriginal Customary Law be incorporated into the legal
  system in a way that does not breach the principles of non-discrimination
  and equality before the law?
• Are there
  justifications for legal pluralism by recognising a source of law making
  that does not fit within the three arms of government - the Judiciary,
  the Executive and the Parliament – that are the usual sources
  of law within our legal system? and
• In recognising
  Aboriginal Customary Law, what are the limitations on recognition that
  should legitimately be imposed – compliance with criminal codes
  and consistency with universally recognized human rights are two limitations
  that are widely agreed, but are there others?

At the second level, considerations of a practical kind
arise. Customary Aboriginal Law is not a static body of rules that apply
equally throughout the country. They have evolved in local areas having
regard to all prevailing circumstances, and for this reason differ in
content from area to area and from time to time and the customary laws
continue to evolve and, at times, are even revived in a way that fits
the present circumstances of the community. If all of the theoretical
problems at the first level can be overcome, then I think there will be
real questions about how to determine what the relevant customary law
is which should be applied in a particular case.

The existence of relevant customary law, and its contents,
are likely to be treated as questions of fact which will have to be proved
by calling witnesses to give evidence about those matters. This process
is likely to add new complexities to the trial process.

I have had some experience sitting as a Supreme Court
Judge in Vanuatu where customary law is very much a part of the legal
system. I have experienced the practical difficulties in a criminal trial
where the defendant sought to rely on customary law and custom medicine
as a defence to a sexual charge involving a stepdaughter. Evidence had
to be led on these questions. Human nature being what it is, the prosecution
and the defence advanced different interpretations of the relevant customs,
and it was left to the Court to decide the true content of the custom,
and whether it could apply at all in the circumstances.

There is another significant issue which may have to
be addressed if Aboriginal Customary Law is to be applied. It may become
necessary to determine whether the customary law is consistent with international
human rights as established by international conventions and customary
international law. It is generally recognised under international law,
and by most advocates for the recognition of Aboriginal Customary Law
in Australia, that the customary law must, to the extent of any inconsistency,
give way to internationally recognised human rights. For example, international
human rights law requires that women not be subjected to violence, and
that cruel or inhumane punishments or death not be inflicted. The obligation
to take measures to ensure recognition of human rights under international
law rests on the State. This means that the State would have to remain
involved, through a recognised court system, and the courts would have
to be the final arbiters of whether the operation of relevant Aboriginal
Customary Law in a particular case was consistent with human rights recognised
by international law.

I mention the practical difficulties of establishing
the content of customary law, and the need for the State to continue to
be involved to ensure the application of international human rights law,
to illustrate the difficulties of separating the rules and procedures
of the present Australian legal system from an Aboriginal Customary Law
system.

All these issues look mainly to the limits of recognising
Aboriginal Customary Law. But from the perspective of reconciliation and
the coming together of two cultures, there is also the question of how
can the non-Indigenous legal system itself change and adapt to recognise
Aboriginal Customary Law.

These are some of the issues that our speakers will grapple
with this afternoon.

At the risk of exceeding my role in welcoming you, can
I just mention a case which the Vanuatu Court of Appeal decided that two
weeks ago, [Joli v Joli, Court of Appeal decision 7 November 2003] which
concerned whether the Matrimonial Causes Act, 1973, of the United Kingdom
applied in Vanuatu in so far as it made provision for a property settlement
after a divorce. In Vanuatu under a clause in the Constitution, laws which
applied at the day of Independence continue to apply unless the Parliament
of Vanuatu has passed legislation on the subject matter. Those pre-independence
laws include the laws of general application of England and France provided,
however, that the foreign laws pay sufficient regard to Vanuatu custom.
An argument was raised that the English notions of dividing property and
adjusting proprietary interests was inconsistent with the custom requirements
for succession to land. The importance of land and its succession is essential
to Customary Law in Vanuatu.

The Court of Appeal found there was no inconsistency
between the English legislation and custom because the English legislation,
in directing that the Court should take into account numerous considerations,
included a direction to the Court to take into account any other relevant
circumstances. The Court of Appeal held that the custom laws about succession
to land and inheritance were relevant circumstances, and the English legislation
allowed them to be taken into account and reflected in any order made
by the Court.

That case shows that through a common statutory provision
allowing the Court to have regard to any other relevant matter, custom
law could be recognised and taken into account.

First, we will hear from the Aboriginal and Torres Strait
Islander Social Justice Commissioner at HREOC, Dr Bill Jonas who will
provide a domestic perspective. Commissioner Jonas will address issues
of human rights compliance as well as providing some comments on recent
developments in Indigenous community justice mechanisms and the report
of the Northern Territory Law Reform Committee, released a fortnight ago.

Our second speaker will then be Ms Megan Davis of the
Gilbert and Tobin Public Law Centre at the University of New South Wales.
Ms Davis has served an internship in the Office of the United Nations
High Commissioner for Human Rights and has participated as an advisor
to ATSIC and others in negotiations on Indigenous rights in international
fora, including the United Nations process on the Draft Declaration on
the Rights of Indigenous Peoples and the World Intellectual Property Organisation.
Ms Davis will talk about the international implications of recognition
of Aboriginal Customary Law, including on issues relating to intellectual
property regimes.

Ms Margaret Brewster, President of the International
Lawyers Association, will also provide some comments on the discussions
before we open the forum to questions or comments that any one in the
audience may have.

Last
updated 7 January 2004