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

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  • 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