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SJU: Submission to Inquiry into Aboriginal Customary Law in NT

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Submission to the Northern Territory
Law Reform Committee inquiry into Aboriginal Customary Law in the Northern
Territory

by Aboriginal and Torres Strait
Islander Social Justice Commissioner of the Human Rights and Equal Opportunity
Commission

14
May 2003

Executive
Summary

This
submission is made by the Aboriginal and Torres
Strait Islander Social Justice Commissioner of the Human Rights and Equal Opportunity
Commission. It considers the following issues:

  • An overview of recent developments in Indigenous policy which are relevant to
    Aboriginal Customary Law and which provide guidance as to how Aboriginal Customary
    Law might appropriately be recognised;
  • Relevant human rights principles for determining the circumstances in which Aboriginal
    Customary Law should be recognised formally or informally;
  • Considerations for recognising Aboriginal Customary Law in a manner that protects
    the rights of Aboriginal women;
  • The relevance of building Aboriginal community capacity and supporting Indigenous
    governance mechanisms in order to recognise, strengthen and provide support to
    Aboriginal Customary Law, particularly within the context of criminal justice
    and family violence issues; and
  • Recommendations
    for recognising Aboriginal Customary Law through formal and informal processes.

In
the Commissioner's view, there is currently a crisis in Indigenous communities.
It is reflected in all too familiar statistics about the over-representation of
Indigenous men, women and children in criminal justice processes and the care
and protection system; as well as in health statistics and rates of violence.
Ultimately, one thing that these statistics reflect is the breakdown of Indigenous
community and family structures. They indicate the deterioration of traditional,
customary law processes for regulating the behaviour in communities.

The
Social Justice Commissioner urges this Inquiry to take a broad perspective in
determining the circumstances in which Aboriginal Customary Law should be provided
both formal and informal recognition in the Northern Territory. Ultimately, the
Commissioner's view is that customary law should be treated by the Government
as integral to attempts to develop and maintain functional, self-determining Aboriginal
communities.

Customary
Law is about providing recognition to Aboriginal customary processes for healing
communities, resolving disputes and restoring law and order. Customary law also
continues to exist across the Territory and to be exercised, in varying degrees
and in different ways, by different Aboriginal communities. Given the diversity
of circumstances of different Aboriginal communities across the Territory, there
will be no one size fits all model and care will have to be taken to ensure that
any form of recognition of customary law is grounded in the traditions, customs,
experiences and day to day livelihoods of different communities and does not seek
to impose additional forms of regulation on Indigenous peoples.

The
focus of the submission is on broad structural issues that must be addressed as
part of a recognition process. Overall, the Social Justice Commissioner supports
mechanisms to recognise and/or strengthen Aboriginal Customary Law through specific,
formal recognition as well as by informal recognition through mainstream processes.
Any recognition of Aboriginal Customary Law, however, must be grounded in the
daily experiences, laws and customs of the Aboriginal peoples of the Northern
Territory. The appropriate approaches for recognition must be developed and implemented
with the full participation and involvement of Aboriginal people.

This
submission highlights the dangers relating to the introduction of forms of recognition
of customary law where they are not sufficiently based in the traditions and customs
at the local level or adequately supported by institutional support and capacity
building.

These
arguments are not, however, arguments against recognition per se but arguments
against particular forms of recognition. In particular, the submission expresses
concern that any proposal to introduce a sweeping code for recognition of Aboriginal
Customary Law would be inappropriate where it is not developed with the full participation
of Aboriginal people, or where it is not able to be flexibly adapted to the needs
of specific communities or not accompanied by a broader focus on capacity building,
governance reform and consideration as to the adequacy of existing service delivery
arrangements.

The
submission also highlights the central importance of recognising customary law
consistently with human rights principles. There are three main requirements in
this regard. First, the government must turn its mind to the justifications for
introducing specific forms of recognition (to ensure that they do not breach section
9 of the Racial Discrimination Act 1975 (Cth)) to ensure that they are
appropriate and justifiable measures (either as a special measure or a legitimate
differentiation of treatment). Second, such recognition must not place unjustified
restrictions on the individual human rights of Aboriginal peoples, including Aboriginal
women. Third, schemes for recognising and protecting Aboriginal Customary Law
must be developed and implemented in full consultation and with the participation
of Aboriginal peoples.

Recognition
of Aboriginal Customary Law can take a variety of forms - both formal and informal.
For example, the Social Justice Report 2001 made recommendations relating
to the operation of juvenile diversionary schemes in the Northern Territory which
included extending options for the operation of Aboriginal Customary Law as a
diversionary mechanism. Such recognition can be provided without formalised legislative
provisions and within the existing framework of the juvenile diversionary system.
The Commission urges the Committee to consider ways that Aboriginal Customary
Law could be implemented through mainstream processes in addition to more formal
processes for recognition.

There
are other circumstances where informal recognition will not be sufficient and
may result in the inconsistent application of customary law. For example, there
is already scope for the judiciary to take customary law matters into consideration
informally in sentencing but there is no mechanism to ensure that its relevance
is considered at all times and that it is applied consistently with human rights
standards. In this instance, there needs to be formalised recognition to require
the courts to always consider whether customary law is a relevant consideration
and to apply it consistently with human rights principles. A provision requiring
such judicial consideration should be inserted into the Sentencing Act 1995
(NT).

This
submission notes range of processes through which recognition of customary law
could be advanced. Principally these include the commitment of the Northern Territory
government to the outcomes of the 1997 National Summit on Deaths in Custody (and
the development of a framework for implementing the recommendations of the Royal
Commission into Aboriginal Deaths in Custody); the recommendations relating to
contemporary removals in the Bringing them home report; the Social Justice
package proposals for principles to underpin the negotiation of local or regional
agreements with Indigenous peoples; the recommendations and national strategies
of the Council for Aboriginal Reconciliation; and in future consideration of an
appropriate statehood model (and Constitution) for the Northern Territory.

In
accordance with the issues raised in this submission, the Social Justice Commissioner
makes the following recommendations to the Northern Territory Law Reform Committee.

Recommendation
1: That the Northern Territory Government acknowledge the importance of recognising,
protecting and strengthening Aboriginal Customary Law in order to develop and
maintain functional, self-determining Aboriginal communities across the Northern
Territory. The Committee should also acknowledge that the existence of such communities
would have considerable benefits for all Territorians by creating safer communities.

Recommendation
2: That the Government negotiate with Aboriginal and Torres Strait Islander
peoples about amending relevant legislation to reflect the rights of Aboriginal
and Torres Strait Islander peoples to live in accordance with their laws, customs
and traditions, consistent with all international human rights instruments, and
to ensure that Australian laws will not impose unnecessary restrictions upon the
exercise of those rights. [1]

Recommendation
3: That the Government provide formal legislative recognition of Aboriginal
Customary Law in the Sentencing Act by inserting a new section into the
Act which requires magistrates and judges to determine in all matters whether
Aboriginal Customary Law is a relevant consideration and if so, to provide appropriate
weight to customary law in sentencing decisions and to apply it consistently with
human rights standards (as defined in the six human rights treaties to which Australia
is a party and through the instruments of the United Nations and under international
law).

Recommendation
4: That the Government consider the desirability of recognising and protecting
Aboriginal Customary Law in developing a new Constitution for the Northern Territory
as a consequence of the Statehood debate. The form of recognition must be negotiated
with Indigenous peoples, communities and organisations. Section 18 of the Cocos
(Keeling) Islands Act 1955 (Cth), the only existing general protection of
customary law in Australia, provides an appropriate starting point for negotiations.
It reads:

The
institutions, customs and usages of the Malay residents of the Territory shall,
subject to any law in force in the Territory from time to time, be permitted to
continue in existence.

Recommendation
5: That the Government negotiate with Aboriginal peoples regarding community
justice procedures and the use of alternative dispute resolution mechanisms and
processes that recognise the diversity of Aboriginal and Torres Strait Islander
laws that are consistent with all international human rights instruments. [2]
Such negotiations should include the appropriateness of extending the application
of restorative justice principles in criminal justice issues for Aboriginal offenders
with a view to improving outcomes for them within the criminal justice system.
Consideration should be given, for example, to extending the applicability of
Aboriginal Customary Law to existing juvenile diversionary programs and to adapting
models in both the national and international contexts such as the Tribal Court
system in the United States and circle sentencing in New South Wales and Canada.
Legislative approaches to facilitate community justice mechanisms based in the
recognition of customary law should not, however, be pursued without appropriate
Aboriginal participation and negotiation and without adequate modelling and support
at a policy level.

Recommendation
6: That the Government ensure that existing community justice mechanisms are
provided greater support at a policy level, including through:

  • A greater commitment of human and financial resources over an extended time-frame,
    including more intensive consultation and participation by Aboriginal peoples;
  • Research into
    comprehensive governance and capacity-building initiatives, including the variety
    of forms of modelling and agreement-making that could be pursued in regard to
    community justice and other areas of self-governance; and
  • The coordination of interagency support and consideration of outstanding issues
    regarding the duplication of services to Aboriginal communities.

Recommendation
7: That the Government formally respond to the documents of reconciliation
prepared by the Council for Aboriginal Reconciliation, particularly as they relate
to the recognition of Aboriginal Customary Law and frameworks for negotiating
the recognition of Aboriginal rights and community governance mechanisms.

Recommendation
8: That the Government adopt the social justice principles from ATSIC's Rights,
recognition and reform report as the starting point for negotiations with
Aboriginal peoples in the Northern Territory of a justice agreement framework
under the 1997 National Summit on Aboriginal Deaths in Custody, community justice
mechanisms and about service delivery arrangements, regional governance and unfinished
business, including the recognition of Aboriginal Customary Law.

1. As discussed in section 2 of the submission,
this was a recommendation of the Council for Aboriginal Reconciliation in its
National Strategy to recognise Aboriginal and Torres Strait Islander Rights.

2.
ibid.

Last updated 2 June 2003.