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
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The Sex Discrimination Commissioner has also made a submission to this inquiry. To access that submission click here.
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.
Last updated 2 June 2003.
