Human Rights and Equal Opportunity Commission Website

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

To access the Executive Summary of the Aboriginal and Torres Strait Islander Social Justice Commissioner's Submission to the Northern Territory Law Reform Committee Inquiry into Aboriginal Customary law in the Northern Territory click here.
The Sex Discrimination Commissioner has also made a submission to this inquiry. To access that submission click here.

1) Introduction

This submission is made by the Aboriginal and Torres Strait Islander Social Justice Commissioner of the Human Rights and Equal Opportunity Commission (herein HREOC or the Commission) ⁽¹⁾.

The submission responds to the terms of reference and issues paper for Towards Mutual Benefit: An Inquiry into Aboriginal Customary Law in the Northern Territory being chaired by a sub-committee of the Northern Territory Law Reform Committee.

The submission 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;
Case studies of capacity building and recognising Customary Law; and
Recommendations for advancing formal and informal recognition of Aboriginal Customary Law in the Northern Territory.

At the outset, the Social Justice Commissioner wishes to commend the Northern Territory Government for its statements that it is of the view that 'in accordance with Australian and international law, Aboriginal Customary Law should be recognised consistent with universally recognised human rights and fundamental freedoms' and that it believes that 'there is much value in supporting and sustaining Aboriginal Customary Law, and that the knowledge contained in Aboriginal Customary Law can be of mutual benefit to all citizens of the Northern Territory as well as its custodians' ⁽²⁾.

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. This is due in part to the intervention of the formal legal system through removal from country, historical lack of recognition of traditional rights to country and non-recognition of customary law processes as an integral component of the operation of Aboriginal families and societies in the Northern Territory.

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 therefore more than a mitigating factor in sentencing processes before the courts. It 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.

2) Recent developments relevant to the recognition of Aboriginal Customary Law

There have been a variety of Inquiries and Reports that have considered processes for recognising Aboriginal Customary Law over the past thirty years. Despite this, there has been limited progress in providing either formal or informal recognition.

The discussion paper for this inquiry, titled Towards mutual benefit, contains an overview of the consideration of Aboriginal Customary Law to date at the national level and in the Northern Territory. In particular, reference is made to the landmark 1986 report of the Australian Law Reform Commission (ALRC 31 - The Recognition of Aboriginal Customary Law), the 1991 reports of the Royal Commission into Aboriginal Deaths in Custody, and various reports of the Northern Territory Statehood Committee and in relation to the Statehood issue.

The Social Justice Commissioner acknowledges the importance of these documents in analysing a range of key issues to be considered by this inquiry. It is not the purpose of this submission to provide a summary of the findings and analysis of these documents. Accordingly, while acknowledging the importance of these, this submission will only refer to these documents in so far as they specifically relate to the issues addressed in this submission. In addition to these documents, the Commission commends to the Committee the excellent analysis of issues relating to the recognition of Aboriginal Customary Law in the 2000 report of the New South Wales Law Reform Commission on the sentencing of Aboriginal offenders. ⁽³⁾

This section identifies a series of developments that have taken place largely since the Royal Commission into Aboriginal Deaths in Custody in 1991. These developments have implications for the recognition of Aboriginal Customary Law in the Northern Territory. ⁽⁴⁾

The recognition of native title

The most significant development since 1991 has undoubtedly been the recognition of native title by the High Court in Mabo v Queensland (No.2) (herein Mabo). ⁽⁵⁾ For the first time in Australian law, it was recognised that prior to British colonisation the land now known as Australia was owned and occupied by Aborigines and Torres Strait Islanders and that, importantly, aspects of systems of Aboriginal Customary Law had survived colonisation, continued to be exercised and were capable of recognition in Australian law.

The challenge created by the Mabo decision, of significance for the continuation of Aboriginal Customary Law, can be explained as follows:

The decision dealt with what can be labelled the 'distinct rights' of Aboriginal and Torres Strait Islander peoples. While the High Court decision was specifically concerned with Indigenous land title and rights, its acknowledgement of the ongoing legal validity of Indigenous law and custom pointed to the need for a broader recognition of the fact that as a distinct peoples, Aboriginal and Torres Strait Islander peoples are entitled to enjoy distinct and unique rights. Such rights arise from our status as the First Peoples of this country, peoples whose rights predated its colonisation and the imposition of non-Indigenous law and social structures. ⁽⁶⁾

The 11 years since the High Court's decision in Mabo have seen the recognition, subsequent regulation and clarification of native title by the federal Parliament, state and territory parliaments and the court system. The Aboriginal and Torres Strait Islander Social Justice Commissioner annually provides an analysis as to whether this recognition is consistent with human rights standards through the Native Title Report to federal Parliament.

Recent Native Title Reports recognise that there have been a number of determinations of native title as well as Indigenous Land Use Agreements which have provided recognition and protection to some native title holders. The reports have also raised a number of significant concerns with the operation of the native title system as it has been codified by the Native Title Act 1993 (Cth), the plethora of state and territory legislation which the Native Title Act permits to be introduced, and the interpretation of this legislation by the courts. ⁽⁷⁾ The Native Title Report 2002, for example, expresses concern in relation to recent decisions of the High Court and Federal Court. The High Court's decisions in Yarmirr, ⁽⁸⁾ Miriuwung Gajerrong, ⁽⁹⁾ Wilson v Anderson⁽¹⁰⁾ and Yorta Yorta⁽¹¹⁾ crystallise the law with respect to the recognition and extinguishment of native title. What has emerged from the courts is a concept of recognition as not simply the law providing a vehicle for Indigenous people to enjoy their culture and property rights - rather the law becomes a barrier to their enjoyment and protection.

There are other concerns that have been expressed by the Commissioner, the courts, governments, and other parties, including that:

after more than a decade, Indigenous people have very little results to show from the native title system in recognising their ongoing relationship to land; ⁽¹²⁾
native title has been sidelined from broader Indigenous policy debates and from strategies aimed at increasing Indigenous peoples self-reliance and economic empowerment - traditional land, culture and governance structures could play an integral role; ⁽¹³⁾
there has been insufficient weight given to oral traditions in evidencing the scope and nature of Indigenous customs and laws; ⁽¹⁴⁾
the process is prolonged, adversarial and stressful for Indigenous claimants; ⁽¹⁵⁾
Indigenous peoples' participation in the process is severely, and inequitably, under-resourced and threatens the ability of native title representative bodies to effectively represent and protect native title interests; ⁽¹⁶⁾
the Native Title Act has imposed additional forms of bureaucratic regulation and representation on Indigenous peoples and may in fact have hindered the ability of Indigenous peoples to live in accordance with their traditional laws and customs; ⁽¹⁷⁾ and
the native title system has confirmed widespread extinguishment of native title, with limited recognition of the potential for co-existence of native title rights with the interests of non-native title interests in land. ⁽¹⁸⁾

Developments in the native title system demonstrate the difficulty in striking an appropriate balance between providing certainty in the interaction of a form of Aboriginal Customary Law with non-Indigenous interests through the mainstream legal process and providing appropriate recognition and protection to Aboriginal Customary Law. The native title system demonstrates how the introduction of an extensive regime of codification can militate against the purpose of protecting and strengthening Aboriginal Customary Law. As discussed later in this submission, they identify the need to ensure an appropriate balance between formal, legislative, protection of customary law and informal recognition through processes aimed at community empowerment and capacity building.

Limited recognition of Aboriginal Customary Law through the native title system

The second, related, trend in the past decade has been the failure of attempts to include within the scope of native title a broader recognition of Aboriginal Customary Law.

In Walker v NSW⁽¹⁹⁾ , the High Court had to consider whether customary Aboriginal criminal law is something which has been recognized by the common law and which continues to this day, in the same way that Mabo decided that customary law relating to land tenure continues to exist. Mason CJ rejected this proposition. He stated:

Even if it be assumed that the customary criminal law of Aboriginal people survived British settlement, it was extinguished by the passage of criminal statutes of general application. In Mabo (No.2), the Court held that there was no inconsistency between native title being held by people of Aboriginal descent and the underlying radical title being vested in the Crown. There is no analogy with the criminal law. English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it. There is nothing in Mabo (No.2) to provide any support at all for the proposition that criminal laws of general application do not apply to Aboriginal people. ⁽²⁰⁾

In Bulun Bulun v R & T Textiles Pty Ltd⁽²¹⁾ , the issue of infringements of copyright of Indigenous artwork was considered. The applicants sought the Federal Court to consider whether communal title in traditional ritual knowledge, as expressed through artwork, could be recognised and protected by the Australian legal system as an incidence of native title, and alternatively whether a fiduciary obligation could be found to be owed by the artist back to the community and whether the common law is capable of recognising some form of traditional community ownership of copyright in equity. The applicant's statement of claim argued that:

he was a traditional owner of the land within the meaning of the Aboriginal Land Rights Act 1975 (Cth), Native Title Act 1993 (Cth) and native title at common law;
according to the traditional customs and law of the group, the group was to be the custodian of the land on the condition that they maintain the integrity of the corpus of ritual knowledge - including the songs, paintings and dances; and
the applicant's right to paint and permit reproduction of an artistic work is subject to the conditions and obligations of the traditions and customs, and is an incidence of his traditional Aboriginal ownership of that country.

The Court was unable to consider whether intellectual property rights were an incident of native title as section 213(1) of the Native Title Act 1993 (Cth) requires that the procedures of the NTA must be followed in order to make a determination relating to native title, and the applicant had not made an application under the NTA. The Court therefore did not have jurisdiction to make a determination of native title in this case.

Justice von Doussa did go on to consider whether communal ownership or customary law obligations in relation to copyright could be recognised under the general law or within the terms of the Copyright Act 1968 (Cth). He found:

Whilst it is superficially attractive to postulate that the common law should recognise communal title, it would be contrary to established legal principle for the common law to do so. There seems to be no reason to doubt that customary Aboriginal laws relating to ownership of artistic works survived the introduction of the common law. The Aboriginal peoples did not cease to observe their sui generis system of rights and obligations upon the acquisition of sovereignty of Australia by the Crown. The question however is whether those Aboriginal laws can create binding obligations on persons outside the relevant Aboriginal community, either through the recognition of those laws by the common law, or by their capacity to found equitable rights in rem.⁽²²⁾
In Coe v Cth Mason CJ rejected the proposition that Aboriginal people are entitled to right and interests other than those created or recognised by the laws of the Cth, its States and the common law. To conclude that the Ganalbingu people were communal owners of the copyright in the existing work would ignore the provisions (of the Copyright Act) and involve the creation of rights in Indigenous peoples which are not otherwise recognised by the legal system of Australia. ⁽²³⁾

Justice von Doussa did find, however, that the system of customary law created a fiduciary obligation on the part of the artist to his community not to exploit the artistic work in a way that is contrary to the laws and customs of his people and, in the event that copyright is infringed by a third party, to take reasonable and appropriate action to restrain and remedy the infringement. ⁽²⁴⁾ These fiduciary obligations, however, were not sufficient to vest an equitable interest in ownership of the copyright in the artist's community. ⁽²⁵⁾

Recent High Court decisions interpreting the scope of the Native Title Act have also provided a restrictive interpretation to the ability for native title to protect or recognise Aboriginal Customary Law. In Miriuwung Gajerrong the Court ruled that the only practices protecting cultural knowledge that come within the NTA are those rights of 'denial or control of access to land or waters'. ⁽²⁶⁾ So, for example, if an Indigenous group has customs in relation to a significant women's site the group may have native title rights to prevent men accessing the site, but would not have native title rights to prevent photographs, videos or descriptions of the site being passed to men. Effectively, any right to protect cultural knowledge that is not a restriction of access to country cannot be recognised as native title. When combined with the ease with which control of access is extinguished, ⁽²⁷⁾ this leaves limited opportunity for native title to protect culture.

In the Yorta Yorta decision, the High Court constructed a notion of sovereignty that denies the law-making power of Indigenous people after the imposition of British rule. This places limits on those rights and interests that will be protected under s223(1) of the Native Title Act, the traditional laws and customs, is not a functioning system but one which ceased to operate from the time that British sovereignty was imposed. The rights and interests recognised in NTA s223(1) as native title, must be created by traditional laws and customs existing prior to British sovereignty. ⁽²⁸⁾

These High Court decisions have also confirmed a more limited and fragile understanding of native title as a bundle of rights as opposed to a deeper system of law. This construction of native title reflects the failure of the common law and the NTA to recognise Indigenous people as a people with a system of laws based on a profound relationship to land. Native title as a bundle of separate and unrelated rights with no uniting foundation is a construction which epitomises the disintegration of a culture when its law-making capacity, that is its sovereignty, is neatly extracted from it. The High Court understood that this separation of rights and interests from the laws they originate in was fragmenting an otherwise integrated order. This construction however was considered necessary by the legislation governing the recognition process.

In this fragmented form, every right and interest for which recognition is claimed needs to be identified. After finding approximate common law equivalents for these core concepts of traditional law and custom (and denying some interests for which no equivalent can be found) the Court then determines the extent to which the creation of rights to control access to land under the non-Indigenous property system would extinguish them. Thus even though Indigenous relationships to land, in their cultural context, may be unique and incommensurable, through the native title process they are given a meaning which renders them comparable to non-Indigenous property rights and thus able to be extinguished. The result of this approach is that even though Aboriginal people continue to maintain a spiritual connection with the land, the common law will consider their native title rights to be extinguished where inconsistency occurs. This disjuncture between Aboriginal law and culture and common law recognition was acknowledged in the High Court's Miriuwung Gajerrong decision:

[T]he recognition may cease where, as a matter of law, native title rights have been extinguished even though, but for that legal conclusion, on the facts native title would still subsist. ⁽²⁹⁾

These decisions indicate the limitations of relying upon the native title system in order for Indigenous people to have aspects of Aboriginal Customary Law recognised and consequently for them to be able to enjoy their cultural and property rights. Significantly, this does not reflect the non-existence or abandonment of Aboriginal Customary Law but instead the inability or unwillingness of the native title system to act as a vehicle to recognise and protect it.

National responses to past injustices experienced by Indigenous people

The third main development since 1991 has been the national focus on responding to the consequences of the past treatment of Aborigines and Torres Strait Islanders. In particular the Commission notes three main developments of relevance to the recognition of Aboriginal Customary Law - the reconciliation process; social justice package and Bringing them home report. The recommendations emanating from each of these processes contain recommendations relevant to the recognition of Aboriginal Customary Law.

The Council for Aboriginal Reconciliation was established in 1991 to recommend strategies for achieving reconciliation with Indigenous peoples. Similarly, and concurrently to the work of the Council, the federal Government introduced its response to the High Court's decision in Mabo (No.2) between 1993 and 1995. This response included the creation of the Native Title Act 1993 (Cth); the creation of the Indigenous Land Acquisition Fund overseen by the newly created Indigenous Land Corporation and the sanctioning of Indigenous organisations developing a series of proposals for a 'social justice package' to address the consequences of Indigenous dispossession. The social justice package proposals were submitted by the Aboriginal and Torres Strait Islander Commission (ATSIC); Council for Aboriginal Reconciliation and Aboriginal and Torres Strait Islander Social Justice Commissioner in 1995.

The Social Justice Package: The social justice package report by ATSIC, titled Recognition, rights and reform - Report to Government on native title social justice measures, specifically identified the range of issues that they considered needed to be addressed in order to provide social justice for Indigenous Australians. ATSIC proposed that Governments legislatively adopt a series of Social Justice Principles to underpin policy development on Indigenous issues, as well as guide all future relationships between the Commonwealth and Indigenous peoples. ATSIC recommended that the Commonwealth should also negotiate with state, territory and local governments for the adoption of the principles. The principles include the following.

Principles for Indigenous social justice and the development of relations between the Commonwealth government and Aboriginal and Torres Strait Islander Peoples
1. The relationship between the Commonwealth Government and the Aboriginal and Torres Strait Islander peoples of Australia is founded in full acceptance and recognition of the fundamental rights of Aboriginal and Torres Strait Islander peoples to:

recognition of indigenous peoples as the original owners of this land, and of the particular rights that are associated with that status;
the enjoyment of, and protection for, the unique, rich and diverse indigenous cultures;
self-determination to decide within the broad context of Australian society the priorities and the directions of their own lives, and to freely determine their own affairs;
social justice and full equality of treatment, free from racism; and
exercise and enjoy the full benefits and protection of international covenants.
2. In the formulation of policies and delivery of programs that affect Aboriginal and Torres Strait Islander peoples, the Commonwealth, pursuant to powers in relation to indigenous peoples overwhelmingly granted it by the people of Australia in the 1967 Referendum:

shall ensure that policies, the delivery of programs and services, and the effective improvement of service quality is achieved through processes which are negotiated with and which protect the rights of indigenous peoples;
recognises the diversity of the Aboriginal and Torres Strait Islander peoples;
accepts the importance of empowerment for decision making and planning at the community and regional levels, and the need for Government at all levels to cooperate and negotiate with Aboriginal and Torres Strait Islander communities and organisations;
requires that indigenous peoples have full access to, and equitable outcomes from participation in, all relevant mainstream programs;
shall ensure processes of accountability to Aboriginal and Torres Strait Islander peoples and especially shall ensure their involvement in review and evaluation processes;
requires that collaboration and coordination between Government agencies providing services to Aboriginal and Torres Strait Islander people shall be significantly improved;
shall establish a genuine and productive partnership with indigenous peoples through representative bodies at local, regional, State and national levels;
shall provide quantifiable data and other forms of information on the objectives and outcomes achieved, for all programs which impact on Aboriginal and Torres Strait Islander well-being; and
shall ensure that the interests of indigenous peoples transcend existing conventions about the division and compartmentalisation of the functions of the various spheres of Government.⁽³⁰⁾

In the Social Justice Report 2000, the Aboriginal and Torres Strait Islander Social Justice Commissioner recommended that these social justice principles be adopted as the framework for negotiations about service delivery arrangements, regional governance and unfinished business, including recognition of Aboriginal Customary Law. ⁽³¹⁾ They are clearly relevant to ongoing negotiations over the recognition of Aboriginal Customary Law.

Reconciliation: Shortly after the submission of the social justice package proposals there was a change of government at the federal level and the social justice package was abandoned. The Council for Aboriginal Reconciliation, however, continued to consider the actions that it considered necessary for reconciliation with Indigenous peoples to be achieved.

The Council released its documents of reconciliation (comprising the Australian Declaration Towards Reconciliation, the Roadmap Towards Reconciliation, and four national strategies to achieve reconciliation) in May 2000 and its final recommendations to the Australian people in December 2000 (in the report to federal Parliament, Reconciliation - Australia's challenge). Each of these documents contains recommendations and actions related to the recognition of Aboriginal Customary Law.

The National Strategy for recognising Aboriginal and Torres Strait Islander rights includes as a key objective of the strategy in relation to land, culture and heritage to 'Promote respect for Aboriginal and Torres Strait Islander law'⁽³²⁾ . On the issue of Aboriginal Customary Law it states:

Not since 1986 has there been a comprehensive examination of the ability of the Australian law to accommodate the law of Aboriginal and Torres Strait Islander peoples. Many of the recommendations of that Australian Law Reform Commission Report into Aboriginal Customary Law have not been pursued. In the intervening period, however, there have been significant developments in common law and legislative arrangements, most notably through native title, that have provided greater recognition of the law making responsibilities of Aboriginal and Torres Strait Islander communities and their ability to be accommodated within the Australian legal system.
Greater discussion must occur on the extent to which Aboriginal and Torres Strait Islander law can be recognised under Australian law and accommodated in individual circumstances. Particularly consideration should be given to community justice procedures, sentencing options and methods of alternative dispute resolution. Legislation that will allow for the appropriate recognition of Aboriginal and Torres Strait Islander laws and customs should receive consideration in all Australian jurisdictions.
The Council for Aboriginal Reconciliation recognises the role and importance of customary law practices with Aboriginal and Torres Strait Islander communities. ⁽³³⁾

The National Strategy identifies the following actions for implementation in relation to customary law:

Commonwealth and State governments 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.
Commonwealth, State and Territory governments negotiate with Aboriginal and Torres Strait Islander 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.
State and Territory governments give magistrates and judge's discretion to take account of Aboriginal and Torres Strait Islander laws in sentencing, as already occurs in some circumstances in the Northern Territory. ⁽³⁴⁾

The Australian Declaration Towards Reconciliation, released by the Council on 27 May 2000, also provides recognition of the importance of Aboriginal Customary Law:

Reaffirming the human rights of all Australians, we respect and recognise continuing customary laws, beliefs and traditions.
We desire a future where all Australians enjoy their rights, accept their responsibilities, and have the opportunity to achieve their full potential.
And so, we pledge ourselves to stop injustice, overcome disadvantage, and respect that Aboriginal and Torres Strait Islander peoples have the right to self-determination within the life of the nation.
Our hope is for a united Australia that respects this land of ours; values the Aboriginal and Torres Strait Islander heritage; and provides justice and equity for all. ⁽³⁵⁾

In December 2000, the Council for Aboriginal Reconciliation then released its final report which contained six recommendations for giving effect to the documents of reconciliation. Two of the recommendations are of particular relevance to any move to recognise Aboriginal Customary Law in the Northern Territory:

Recommendation 2. All parliaments and local governments pass formal motions of support for the Australian Declaration Towards Reconciliation and the Roadmap for Reconciliation, enshrine their basic principles in appropriate legislation, and determine how their key recommendations can best be implemented in their jurisdictions.
Recommendation 5. Each government and parliament:

recognise that this land and its waters were settled as colonies without treaty or consent and that to advance reconciliation it would be most desirable if there were agreements or treaties; and
negotiate a process through which this might be achieved that protects the political, legal, cultural and economic position of Aboriginal and Torres Strait Islander peoples.

On 9 November 2000, in response to the documents of reconciliation the Chief Minister of the Northern Territory indicated to the Council for Aboriginal Reconciliation that it considered it inappropriate 'to commit the Northern Territory to the implementation of specific policies and strategies developed by the Council for Aboriginal Reconciliation'⁽³⁶⁾ . While there has been a change of government in the Northern Territory since that response was made, there has still been no formal response to the Council's documents of reconciliation or to the final recommendations of the Council by the current Government. This remains an outstanding matter for the Northern Territory Government. The recommendations of the Council remain a relevant consideration in developing processes for responding to and recognising Aboriginal Customary Law.

Bringing them home: A further relevant matter are the recommendations relating to the contemporary removal of Aboriginal and Torres Strait Islander Children from their families contained in Bringing them home, the report of the national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families. Recommendation 43 of the report proposed the introduction of national legislation establishing the framework for negotiation at the community and regional level for the implementation of self-determination in relation to the well-being of Indigenous children and young people. In particular, it recommends that such national legislation should authorise negotiations with Indigenous communities, where they so desire, on the transfer of legal jurisdiction in relation to juvenile justice, transfer of police or judicial functions to the community, and adequate funding for community programs and strategies.

Developments in international human rights standards

The fourth main trend in the past 11 years has been in relation to international human rights standards. There have been a number of developments of significance to the recognition of Aboriginal Customary Law. These are:

the entry into force and ratification by Australia of two human rights treaties which elaborate on standards of relevance to Aboriginal Customary Law - the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment⁽³⁷⁾ and the Convention on the Rights of the Child⁽³⁸⁾ ;
developments in the international jurisprudence on minority rights by various human rights committees, special rapporteurs and organs of the United Nations (including through the application of the International Convention on the Elimination of All Forms of Racial Discrimination and Article 27 of the International Covenant on Civil and Political Rights to the situation of Indigenous peoples);
developments in the international jurisprudence on the application of the right of self-determination to Indigenous peoples; and
developments of specific human rights instruments relating to the rights of Indigenous Peoples (most notably the entry into force of International Labour Organisation Convention 169 Concerning Indigenous and Tribal Peoples and the acceptance by the United Nations Working Group on Indigenous Populations and Sub-Commission on the Protection and Promotion of Human Rights of a Draft Declaration on the Rights of Indigenous Peoples).

These developments are discussed more fully in the next section of the submission which considers the human rights justifications for recognising Aboriginal Customary Law and approaches for recognising Aboriginal Customary Law consistently with human rights standards.

Broadly, however, these developments indicate that there have been significant advances in the understanding at international law of Indigenous rights particularly since the report of the Australian Law Reform Commission in 1986. These developments ultimately strengthen the justifications for recognising Aboriginal Customary Law and provide greater guidance as to approaches for recognising customary law in a manner that is consistent with human rights.

Lack of progress in addressing the Royal Commission into Aboriginal Deaths in Custody recommendations

The fifth main trend in the past 11 years has been the general lack of progress in addressing the issues raised by the Royal Commission into Aboriginal Deaths in Custody. The Social Justice Commissioner's Social Justice Report 2001 provides a detailed account of where there have been improvements and where there has been a lack of progress in addressing issues relating to the contact of Indigenous peoples with the criminal justice system. In particular, it notes that the situation a decade after the Royal Commission into Aboriginal Deaths in Custody is far worse in terms of over-representation rates than at the time of the Royal Commission. ⁽³⁹⁾

At the same time, there have been significant developments in the past five years in developing frameworks for negotiating strategies for addressing Indigenous over-representation in criminal justice processes with the participation of Indigenous peoples (generally referred to as Justice Agreements^{(
40)} ). There have also been processes developed for involving Indigenous peoples and communities in law and order and sentencing decisions. The introduction of the Koori Court in Victoria, Noongar Court in South Australia, Community Justice Groups in Queensland, Circle Sentencing in New South Wales and involvement of Indigenous peoples in youth conferencing schemes in various jurisdictions in Australia is discussed in section 5 of the submission.

The Commission notes that in October 2002 the Northern Territory became the latest government to commit to the development of a justice agreement by committing to the outcomes of the National Summit on Deaths in Custody from 1997. The Commission notes that the Justice Agreement process may form an appropriate vehicle for implementing the recommendations of the Law Reform Committee's inquiry within the broader context of responding in a holistic manner to justice issues.

Indigenous capacity-building and governance

The sixth main trend, again recent, has been the increasing acceptance of the importance of and support for developing Indigenous community capacity and governance reform. The need to facilitate more effective governance and capacity-building processes has become an important aspect of national policy on addressing Indigenous disadvantage. In November 2000 the Council of Australian Governments (COAG) made a commitment to advancing reconciliation in regard to social and economic disadvantage through a nationally-coordinated framework. ⁽⁴¹⁾ COAG's approach is based on partnerships and shared responsibilities with Indigenous communities; programme flexibility; and coordination between government agencies, with a focus on local communities and outcomes.

he Commission notes that the Northern Territory government has already contributed significantly to this through such processes as the coordinated health care trials in the Katherine region and the development and recognition of law and justice strategies such as the Ali -Curung / Lajamanu process. ⁽⁴²⁾ The importance of capacity building and governance reform in relation to customary law is considered in detail in section 5 of the submission.

Indigenous participation in the Northern Territory Statehood debate

The seventh main trend in the past decade has been the participation of Indigenous peoples in the Northern Territory in relation to the statehood issue. The Commission particularly draws to the Committee's attention the Kalkaringi Statement of the Constitutional Convention of the Combined Aboriginal Nations of Central Australia convened from 17- 20 August 1998 and the Batchelor statement of December 1998. Both documents, taken together, are described by the Combined Aboriginal Nations of Central Australia as 'the Indigenous blueprint for constitutional development in the NT with equal relevance for federal Constitutional development'⁽⁴³⁾ .

The Kalkaringi statement was prepared in the lead up to the statehood referendum of October 1998. It withheld the consent of the Indigenous peoples of the Northern Territory for the establishment of a new state until such time as the government entered into good faith negotiations with the freely chosen representatives of the Aboriginal nations and led to a constitution based on equality, co-existence and mutual respect. The Batchelor statement that followed in the wake of the defeat of the statehood referendum sought to enunciate principles for future attempts at constitutional reform. These statements call for:

The recognition of Aboriginal law through Aboriginal structures of law and governance;
Protection of the inherent right of Aboriginal peoples to self-determination in the new Constitution;
Continued recognition and protection of Indigenous rights to land and resources;
Processes to facilitate Aboriginal self-government, including direct funding arrangements with the federal government and the examination of options such as regional authorities, regional agreements and treaty arrangements;
Negotiations by the government on the control and delivery of services relating to essential services and infrastructure, health, education, law and justice, to ensure that they are culturally appropriate;
Adequate protection of human rights; and
For negotiations by the Government with Aboriginal communities regarding the administration and resourcing of community justice mechanisms and the effective participation of Aboriginal people in justice mechanisms.

These statements provide clear guidance on the aspirations of the Aboriginal peoples of the Northern Territory for constitutional entrenchment of Indigenous rights, including Aboriginal Customary Law.

In summary, these developments highlight the vast range of processes currently underway which could potentially interact, provide guidance and support for, or strengthen, the exercise of Aboriginal Customary Law. Proposals for how the recognition of Aboriginal Customary Law could be advanced in accordance with these developments are discussed in the final section of this submission.

3) Recognising Aboriginal Customary Law consistently with human rights standards

All proposals for the recognition of Aboriginal Customary Law in Australia have taken as their starting point that any such recognition must be consistent with human rights standards. ⁽⁴⁴⁾ The Social Justice Commissioner endorses this requirement as essential to any recognition of Aboriginal Customary Law.

By ratifying a range of human rights treaties, the federal Government has undertaken to ensure that all levels of government and private individuals conduct themselves in a manner that respects human rights as well as to take action to prevent human rights breaches wherever and whenever they may occur. So for example, under Article 50 of the International Covenant on Civil and Political Rights, the federal Government has undertaken to apply the provisions of the Covenant to all parts of the federation without any limitations or exceptions. Accordingly, any attempts to recognise Aboriginal Customary Law in a manner inconsistent with human rights standards would place Australia in breach of its obligations under international law and activate a duty on the part of the federal government to nullify or override such breaches.

Recognising Aboriginal Customary Law and non-discrimination

Recognising Aboriginal Customary Law consistently with human rights standards raises two main issues. First, there is a threshold question as to whether recognition of Aboriginal Customary Law creates a situation of favourable treatment for Indigenous peoples that results in unequal treatment or discrimination against non-Indigenous people.

This is an issue which regularly arises in public debates about Aboriginal Customary Law. A recent example is the response of the federal Government to the recommendations of the Council for Aboriginal Reconciliation. In responding to the references to customary law in the documents for reconciliation, as quoted in the previous section, the Government stated that:

the Government is unable to endorse the approach to customary law in the Council's Declaration as the Government believes all Australians are equally subject to a common set of laws. ⁽⁴⁵⁾

A similar concern was expressed by the Opposition in New South Wales when the NSW Government announced it was to commence a trial of Aboriginal involvement in sentencing processes through the introduction of circle sentencing. In Parliament, the leader of the Opposition said of circle sentencing:

We need to make sure that justice in NSW is fair for all. In doing so, we need to make sure that no particular concessions are given to one group in the community that would disadvantage any other group. ⁽⁴⁶⁾

Upon the commencement of the Koori Court in Victoria in March 2003, an opinion piece in the Herald Sun newspaper stated:

The establishment of this court will create a greater division between Aboriginal people and the rest of the population. Victoria is a state with many different cultures, races and religions. In creating a Koori Court, are we accepting that a section of our community should have justice dispensed in an entirely different way to the rest of the population? I would have thought that justice in any civilised community should be dispensed evenly and consistently.
I have no difficulty in accepting that Aboriginal culture should have a role in the sentencing of Aboriginal offenders. I do, however, question a special court that will be seen by the community to be giving a special favour to a group of people and not the wider community. We are, despite being a multicultural society, one society and we should have just one justice system for us all. ⁽⁴⁷⁾

Each of these concerns is misplaced and based on an incorrect interpretation of the principles of equality before the law and non-discrimination. In international law, the promotion of equality does not necessitate the rejection of difference. It accepts that there are circumstances in which differential treatment is warranted and thereby permitted.

In the decision of the International Court of Justice in the South West Africa Case, Judge Tanaka explains this principle:

The principle of equality before the law does not mean the absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal... To treat unequal matters differently according to their inequality is not only permitted but required. ⁽⁴⁸⁾

Such an understanding of equality, often referred to as 'substantive equality', takes into account 'individual, concrete circumstances'. It acknowledges that racially specific aspects of discrimination such as socio-economic disadvantage, historical subordination and the failure to recognise cultural distinctiveness must be taken into account in order to redress inequality in fact.

The alternative approach, often referred to as 'formal equality', relies on the notion that all people should be treated identically regardless of their differing circumstances. Such an approach 'denies the differences which exist between individuals and promotes the idea that the state is a neutral entity free from systemic discrimination.' ⁽⁴⁹⁾ As Justice Brennan states in the High Court's decision in Gerhardy v Brown:

it has long been recognised that formal equality before the law is insufficient to eliminate all forms of racial discrimination. formal equality must yield on occasions to achieve. 'genuine, effective equality'. ^{( 50)}

The Human Rights Committee, which oversees implementation of the ICCPR, and the Committee on the Elimination of Racial Discrimination⁽⁵¹⁾ , have adopted a substantive equality approach to the meaning of non-discrimination. The Human Rights Committee has indicated that equality 'does not mean identical treatment in every instance', and that the Committee is concerned with 'problems of discrimination in fact' not just discrimination in law. ⁽⁵²⁾

As the Committee on the Elimination of Racial Discrimination has stated:

The Committee observes that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4, of the Convention. In considering the criteria that may have been employed, the Committee will acknowledge that particular actions may have varied purposes. In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin. ⁽⁵³⁾

In accordance with this, there are basically two types of differential treatment that are permissible in order to achieve equality, and which are considered to be non-discriminatory. These are special measures (or affirmative action) and actions that legitimately recognise cultural difference.

Special measures are remedial provisions aimed at raising segments of the community who are not equal to a position of equality within society. Article 1(4) of the International Convention on the Elimination of Racial Discrimination (the Racial Discrimination Convention) states:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights or fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

In addition, there are also certain circumstances where it is appropriate to recognise the distinct cultural characteristics of particular groups, especially minorities. The critical issue is to identify those differences that justify a differentiation in treatment. Judge Tanaka in the South West Africa Case stated that differences which minority groups may choose to protect are the relevant differences, rather than oppressive distinctions ascribed in order to justify the reduction of rights. There must be a reasonable, objective and proportionate nexus between the relevant differences with its legal recognition to achieve equality of treatment.

Judge Tanaka explained this in the context of the protection of minority groups as follows:

a minority group shall be guaranteed the exercise of their own religious and education activities. This guarantee is conferred on the members of a minority group, for the purpose of protection of their interests and not from the motive of discrimination itself. By reason of protection of the minority this protection cannot be imposed upon members of minority groups, and consequently they have the choice to accept it or not. ⁽⁵⁴⁾

The Committee on the Elimination of Racial Discrimination has recognised that measures that seek to protect the culture and identity of Indigenous peoples may constitute a legitimate, non-discriminatory differentiation of treatment. The Committee has recognised that Indigenous peoples worldwide:

have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized. ⁽⁵⁵⁾

Consequently, they have called on parties to the Convention to:

Recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation.
Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent;
Ensure that indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages. ⁽⁵⁶⁾

In Australian law, the Racial Discrimination Act 1975 (Cth) faithfully implements the Racial Discrimination Convention. Section 8(1) of the Act exempts special measures that meet the requirements of Article 1(4) of the Convention from the prohibition of racial discrimination in section 9 of the Act. The High Court has identified four requirements that must be met for a program or action to qualify as a special measure under the Racial Discrimination Act. These are that:

The special measure must confer a benefit on some or all members of a class;
Membership of this class must be based on race, colour, descent or national or ethnic origin;
The special measure must be for the sole purpose of securing adequate advancement of the beneficiaries so that they may enjoy and exercise equally with others their human rights and fundamental freedoms; and
The protection given by the special measure must be necessary so that its beneficiaries may enjoy and exercise equally with others, their human rights and fundamental freedoms. ⁽⁵⁷⁾

Justice Brennan also noted that:

The wishes of the members of the class are relevant - a special measure will not bring about advancement if it is conferred against their will, and similarly, an advancement cannot confer benefits which convert members of the class from a disadvantaged class into a privileged class;
The special measure must not maintain separate rights; and
The special measure must not be continued after the objectives for which they were taken have been achieved - although this does not mean that it is necessary that the special measure be created with a finite time for its existence. ⁽⁵⁸⁾

In Gerhardy v Brown, the High Court found that land rights legislation constituted a special measure under the Act and was not discriminatory. ⁽⁵⁹⁾ The application of the principle of formal equality by the High Court in this case to the Racial Discrimination Act 1975 (Cth) has received extensive criticism. ⁽⁶⁰⁾ This has been largely due to the Court's reliance on justifying Aboriginal land rights as a special measure, rather than embracing a more expansive understanding of equality as provided in international law. Such an understanding could have allowed recognition of land rights as a legitimate differentiation of treatment. ⁽⁶¹⁾

The difficulty of the High Court's approach in Gerhardy v Brown has been highlighted by the recognition of native title in Mabo. The source of recognition of native title is the traditions and customs of Aboriginal and Torres Strait Islander peoples rather than an act of recognition by the Parliament. Native title continues to be recognised until such time as it is extinguished by the Crown or until the traditional laws and customs on which it is based are no longer observed. There are also a number of relevant differences between native title and ordinary forms of title which the Aboriginal and Torres Strait Islander Social Justice Commissioner has previously argued meet the test of being 'reasonable, objective and proportionate' and accordingly mandate appropriately different treatment to achieve substantive equality. ⁽⁶²⁾

It is therefore not possible to characterise the basis of recognition of native title as temporary in scope or as having a finite period for recognition as would be required to qualify as a special measure. The High Court has, albeit briefly and without reconsidering its ratio in Gerhardy, recognised this in its subsequent decision on native title in Western Australia v Commonwealth (1995). There the Court characterised the original Native Title Act 1993 (Cth) as 'either a special measure. or as a law which, though it makes racial distinctions, is not racially discriminatory'⁽⁶³⁾ .

In the Social Justice Commissioner's view, based on these principles and the interpretation of them in Australian courts, Aboriginal Customary Law could be recognised as a legitimate differentiation of treatment that does not offend the prohibition of racial discrimination in sections 9 or 10 of the Racial Discrimination Act 1975 (Cth). It is, however, uncertain whether the High Court will follow through the consequences of its characterisation of the Native Title Act in Western Australia v Commonwealth by recognising this. There can be no doubt that should they take a more limited approach, in accordance with the Court's reasoning in Gerhardy v Brown, they would find that Aboriginal Customary Law falls within the exception to the prohibition of racial discrimination in the Racial Discrimination Act by being accepted as a special measure under section 8(1) of the Act. Recognition of customary law as a special measure would leave the continuation of laws providing formal and distinct recognition of customary law under potential review of the Courts at any stage.

The concerns expressed earlier that recognition of Aboriginal Customary Law creates a situation of favourable treatment for Indigenous peoples that results in unequal treatment or discrimination against non-Indigenous people can therefore be rejected.

The Commission also notes the response of the Victorian Attorney-General (which is consistent with the Commission's reasoning on special measures) to the above quoted criticisms of the establishment of a Koori Court in Victoria. The Attorney stated:

The Koori Court is a specific initiative which responds to a very specifically identified need. (Numerous studies have) all identified an acute need to respond to the consequences of a disenfranchised and dispossessed community colliding with an alien criminal justice system. The statistics (on Indigenous imprisonment) speak for themselves. (The statistics tell) us that while the criminal justice system may not be perfect in other respects, it is manifestly failing the whole community when it is unable to slow such a disproportionate rate of offending and imprisonment by one particular group.(it is) necessary to provide tailored responses to the very specific and critical needs of a particular group in the community. ⁽⁶⁴⁾

Resolving conflicts between human rights standards and Aboriginal Customary Law

The second, and more difficult, issue that arises in relation to the recognition of Aboriginal Customary Law from a human rights perspective is determining how to resolve apparent conflicts between human rights standards and Aboriginal Customary Law. How, for example, do you apply in a consistent manner human rights standards that recognise and protect the cultures of minority groups or the collective rights of Indigenous peoples with individual human rights such as the rights of women and children to be free from discrimination and violence? And are there circumstances in which potential breaches of individuals' rights will be permitted in order to protect the rights of the group as a whole?

There are four sets of rights that have emerged in the international human rights system to date in relation to Indigenous peoples that are relevant to this issue. These are:

The general, [individual]. human rights to which everyone is entitled, found in the Universal Declaration on Human Rights and elaborated in subsequent instruments, such as the two International Covenants of 1966.⁽⁶⁵⁾
The additional rights specific to persons belonging to national or ethnic, religious or linguistic minorities, found in Article 27 of the International Covenant on Civil and Political Rights (ICCPR), the Declaration on the Rights of Persons belonging to National or Ethnic, Religious or Linguistic Minorities, and in several regional instruments dealing with the rights of persons belonging to minorities. They are formulated as rights of persons and therefore individual rights. States have some duties to minorities as collectivities, however.⁽⁶⁶⁾Special minority rights can be claimed by persons belonging to national or ethnic, linguistic or religious minorities, but also by persons belonging to indigenous peoples. The practice of the Human Rights Committee under Article 27 of the ICCPR bears this out.⁽⁶⁷⁾
The special rights of indigenous peoples and of indigenous individuals, found in the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169) ⁽⁶⁸⁾ and - if and when adopted - in the Draft Declaration on the Rights of Indigenous Peoples, adopted by the Working Group on Indigenous Populations (WGIP) in 1993 and now before the Commission on Human Rights. They are mostly rights of groups ("peoples") and therefore collective rights.⁽⁶⁹⁾The rights of indigenous peoples, which, under present international law, are found only under ILO Convention No. 169, can only be asserted by persons belonging to indigenous peoples or their representatives. Members of non-indigenous minorities cannot assert the(se) rights... ⁽⁷⁰⁾
The rights of peoples [to self-determination] as provided for in common Article 1 to the two International Covenants of 1966. These are solely collective rights... ⁽⁷¹⁾ There is still no consensus as to which collectivities are the beneficiaries of the right to self-determination under Article 1. ⁽⁷²⁾

The Aboriginal and Torres Strait Islander Social Justice Commissioner has argued that the right of self-determination (category d) above) applies to the situation of Indigenous peoples:

The rights of persons belonging to minorities have developed by focusing on individual rights and in a way that does not recognise. a right to self-determination. The rights of Indigenous peoples have developed in a way that recognises that they are distinct from minorities and that a key reason for this is that they possess a collective status. This leads to the irresistible conclusion that Indigenous peoples are in fact 'peoples' within the context of Article 1 of the international covenants. Some UN studies have concluded as such. This conclusion has also been reached by the Human Rights Committee and the Committee on Economic, Social and Cultural Rights, i.e. the two committees operating under the international covenants. Based on these factors, the contention that Indigenous peoples constitute a 'peoples' and possess the necessary collective identity to be recognised as enjoying a right to self-determination can no longer be challenged with any legitimacy or credibility. The ongoing debates over Article 3 of the Draft Declaration (on the Rights of Indigenous Peoples), the Organisation of American States Draft Declaration (on the Rights of Indigenous Peoples) and the provisions of ILO Convention 169 indicate, however, that States have not yet accepted this conclusion. ⁽⁷³⁾

The challenge for the international human rights system is to apply these different categories of standards consistently with each other. This system recognises these rights as indivisible, with no hierarchy of recognition of these rights or special status given to one over the other.

It should be recognised that in many instances there will be no conflict between these sets of rights and they will be able operate in an interdependent manner. As the Race Discrimination Commissioner noted in 1995:

The claim that collective rights jeopardise traditional individual rights misunderstands the interdependent relationship between group and individual rights. The apparent tension between individual and collective rights is partially resolved once it is recognised that certain individual rights cannot be exercised in isolation from the community. This is particularly the case in indigenous communities.
It is often the case that the protection and promotion of collective rights is a pre-requisite for the exercise and enjoyment of individual rights. The right of an Aboriginal or Torres Strait Islander person to protect and enjoy his or her culture, for example, cannot be exercised if an indigenous culture is struggling to survive within the majority culture and the indigenous community has no right to protect and develop its culture. If rights are not granted collectively to indigenous peoples which enable them to defend their culture, the practice of their religion and the use of their languages, the result is unequal and unjust treatment. ⁽⁷⁴⁾

This reflects a vital point about the recognition of Aboriginal Customary Law - namely, the recognition of Aboriginal peoples' minority group rights and collective rights have the capacity to strengthen social structures within Aboriginal communities as well as the observance of law and order. Section 5 of the submission considers issues relating to capacity building and governance reform in the context of recognising Aboriginal Customary Law.

There will, however, be other circumstances where individual and collective rights are in opposition and a balance must be struck. This does not mean that collective and individual rights are irreconcilable. Decisions made under the Optional Protocol to the ICCPR and General Comments interpreting the scope of the ICCPR by the United Nations Human Rights Committee in relation to Article 27 of the Covenant, for example, provide guidance on how this contest between collective and individual rights should be resolved.

Article 27 of the ICCPR provides that:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The Human Rights Committee has noted that this provision applies to Indigenous peoples, and that it creates a positive obligation on States to protect such cultures:

With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them. ⁽⁷⁵⁾

The Committee has placed limits on those measures that can be recognised. So while it acknowledges that positive measures by States may be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, it also notes that:

such positive measures must respect the provisions of articles 2.1 and 26 of the Covenant (relating to non-discrimination) both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population. However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria. ⁽⁷⁶⁾

Similarly, the Committee notes that 'none of the rights protected under Article 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent with other provisions of the Covenant'⁽⁷⁷⁾ . This includes, for example, Article 6 (the inherent right to life); Article 7 (torture or cruel, inhuman or degrading treatment); and Article 23 (requirement of free and informed consent for marriage). In relation to Article 3 of the Covenant (equality between men and women), the Committee has observed that:

Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes. States should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women's right to equality before the law and to equal enjoyment of all Covenant rights.⁽⁷⁸⁾
The rights which persons belonging to minorities enjoy under Article 27 of the Covenant in respect of their language, culture and religion do not authorise any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights, including the right to equal protection of the law. ⁽⁷⁹⁾

The Committee has also stated that female genital mutilation is a practice that breaches article 6 and 7 of the Covenant, despite the cultural significance of the practice in some societies⁽⁸⁰⁾ ; and has expressed concern about domestic violence, including forced sexual intercourse, within the context of marriage. ⁽⁸¹⁾

The provisions of the ICCPR are also to be read consistently with the interpretation of similar relevant rights under other conventions. So, for example, Article 27 alongside the guarantees of non-discrimination, equality of men and women, and equality before the law in Articles 2, 3 and 26 of the Covenant should be read consistently with related provisions of the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

The Committee on the Elimination of Discrimination Against Women has noted that Gender-based violence is a form of discrimination within the meaning of CEDAW⁽⁸²⁾ and notes that violence in relation to the following rights and freedoms will constitute discrimination in Article 1 of CEDAW:

The right to life;
The right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment;
The right to liberty and security of person;
The right to equal protection under the law; and
The right to equality in the family. ⁽⁸³⁾

The Committee on the Elimination of Discrimination Against Women has also noted that Articles 2,5,11,12 and 16 of CEDAW require States to act to protect women against violence of any kind occurring within the family, workplace or any other area of social life⁽⁸⁴⁾ and that traditional attitudes which subordinate women, including forced marriages, will breach Articles 2(f), 5 and 10(c) of CEDAW. The CEDAW Committee has also stated that practices of female circumcision breach the Convention and thereby reject arguments based on cultural sanctity. The committee does, however, recommend the introduction of educative measures to be taken to combat the continued practice of female circumcision rather than the immediate implementation of coercive laws to punish perpetrators. ⁽⁸⁵⁾

The inclusion of these matters within the definition of discrimination against women is a relevant consideration in consistently applying Article 27 with the non-discrimination provisions of the ICCPR (especially Article 3).

The Human Rights Committee has also stated that the purpose of protection of minorities under Article 27 must be justifiable as being 'directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned'⁽⁸⁶⁾ . In an Individual Communication under the First Optional Protocol to the Covenant the Committee has also indicated that:

The right to enjoy one's culture cannot be determined in abstracto but has to be placed in context. In this connection, the Committee observes that article 27 does not only protect traditional means of livelihood of national minorities. that the authors may have adapted their methods. and practice it with the help of modern technology does not prevent them from invoking article 27 of the Covenant. ⁽⁸⁷⁾

Decisions under the Optional Protocol to the ICCPR demonstrate how the Committee seeks to weigh up these considerations with the recognition of minority rights in Article 27. The specific rights of minorities and indigenous peoples that have been recognised under Article 27 have been qualified by the requirement that their enjoyment shall not prejudice the enjoyment by all persons, including individuals from within the group, of the universally recognised human rights and fundamental freedoms (ie, the rights listed in category a) above).

In the Individual Communication of Kitok v Sweden the Committee stated that 'a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole'⁽⁸⁸⁾ . In that instance, the restriction being complained of was a limitation on the ability of the individual complainant to conduct reindeer husbandry activities due to legislative provisions which sought to protect the Sami peoples' rights to practice reindeer husbandry as a whole. This restriction, based on issues of sustainability of reindeer husbandry practices was seen by the Committee as justified as a reasonable restriction. ⁽⁸⁹⁾

In Lovelace v Canada the Committee had to consider the effect of a legislative provision that denied an Indigenous women who married a non-Indigenous man her status as an on-reserve Indian (and therefore her right to reside on her peoples' reservation). The relevant legislation did not provide that an Indigenous man would lose his on-reserve status should he marry a non-Indigenous women. The Committee stated that Article 27 had to be read consistently with other provisions of the Covenant, read as a whole (in this case, particularly in light of Articles 2, 3, 12, 17, 23 and 26) and found that these restrictions could not be justified reasonably or objectively, or be seen as being directed towards ensuring the survival and continued development of the group as a whole. ⁽⁹⁰⁾

An example where a restriction on an individual may be found to be reasonable and objectively justifiable under Article 27 has been provided by the Race Discrimination Commissioner in the 1995 Alcohol Report. In this, the Commissioner argued that restrictions on the availability of alcohol to Aboriginal communities (which have been consented to by the Indigenous community as a whole) may constitute a legitimate restriction on the rights of an individual within that community. ⁽⁹¹⁾

The commentaries of the international treaty committees, particularly the Human Rights Committee, demonstrate that human rights standards are capable of being applied in a manner that appropriately balances the rights of individuals within Aboriginal communities - such as women and children - with those of the community as a whole.

The Commission notes that it has not provided definitive pronouncements of whether particular practices which may be relied upon in criminal matters, for example, will be capable of being recognised consistent with human rights on the basis that this will require a consideration of the factual situation at issue in the particular case.

As a further example of this, the Commission notes the prohibition of torture or cruel, inhuman or degrading treatment under Article 7 of the ICCPR and under Articles 1 and 16 of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This may be relevant to some forms of tribal punishment, such as spearings and other ritual punishments. The Commission notes, however, that an action alleged to breach the prohibition of torture and cruel, inhuman and degrading treatment must satisfy a high threshold which includes being intended to inflict a degree of cruelty and humiliation on the victim. ⁽⁹²⁾ There may be circumstances in which some tribal punishments, which are alleged to have taken place in accordance with Aboriginal Customary Law, do not evince the necessary standard or meet the necessary threshold to be characterised in this way whereas in other circumstances they will. The determination of whether it breaches such provisions remains context-specific. Accordingly, rather than imposing a uniform ban or refuse to recognise certain practices, the Commission notes that it is preferable for judicial organs to be required to balance Aboriginal Customary Law issues with human rights standards.

4) Indigenous women and Aboriginal Customary Law

The Sex Discrimination Commissioner of the Human Rights and Equal Opportunity Commission has separately provided a submission to this inquiry specifically addressing issues relating to recognising Aboriginal Customary Law from a gender perspective. The Social Justice Commissioner agrees with the analysis provided in that submission. In particular, the Social Justice Commissioner agrees that there is a need to recognise that Indigenous women in the Northern Territory face structural barriers to the equal protection of their rights through the legal system. Caution must be exercised to ensure that processes for recognising Aboriginal Customary Law do not entrench discrimination against Indigenous women or create additional barriers to the protection of Indigenous women's rights.

Mainstream law should consider apparent conflicts between Aboriginal Customary Law and women's individual rights on a case by case basis. It is also important to recognise that custom and law can adapt to general social change, thus allowing resolution of apparent conflict. The potential for conflict should not be used by government as an excuse to avoid the recognition of Aboriginal Customary Law or by Aboriginal communities to condone breaches of human rights.

HREOC considers that it is preferable for judicial decision makers to be required to balance Aboriginal Customary Law issues with human rights standards, rather than imposing a legislative uniform ban or refusing to recognise certain practices. Proposals for how such a balancing exercise should be undertaken are discussed in the final section of this submission.

5) Issues relating to recognising Aboriginal Customary Law and Capacity-building and governance reform

Discussions of customary law in policy and legislative contexts usually concentrate on its interface with the criminal justice system, with occasional acknowledgements of its relevance to land, resource, and heritage issues. As noted above, a focus on the importance of governance and community capacity-building has been a significant development in recent national policy on addressing Indigenous disadvantage. The Commission maintains that it is essential that issues concerning the recognition of customary law be viewed more broadly in terms of Indigenous peoples' right to self-determination and their need to exercise greater control and decision-making in governance and capacity-building processes.

In its community consultations with Indigenous women in April 2003, the Commission found that the recognition of customary law raised far-reaching issues in regard to the development of service delivery processes to accommodate Indigenous cultural characteristics and aspirations, including through supporting and rebuilding Indigenous capacity for self-government and autonomy. Within this context, community justice mechanisms form an integral component of Indigenous governance, particularly in addressing the high rates of Indigenous over-representation in the criminal justice system.

This section discusses issues concerning the recognition of customary law and Indigenous self-government in light of the ALRC's functional recognition approach. The concept of functional recognition provides a useful approach to negotiating the difficulties surrounding the formal recognition of customary law through legislative measures, especially those challenges presented by the diversity of knowledge and practice of customary law at the local level, and the dynamic and changing nature of Aboriginal cultures.

This section then examines community justice mechanisms as a form of capacity-building in regard to the high rates of Indigenous peoples in custody and the need for their greater participation in law and order processes. It argues that Indigenous over-representation in the criminal justice system cannot be seen in isolation from the broader canvas of Indigenous peoples' socio-economic marginalization, and that the development of community justice mechanisms must be accompanied by a return of control and decision-making processes to Indigenous peoples.

This is followed by consideration of the relevance of the social justice principles put forward by the Aboriginal and Torres Strait Islander Social Justice Commissioner in recent Social Justice Reports to Indigenous capacity-building and governance. Evaluation of the community justice mechanisms that would best serve Indigenous people is an important area which, like other forms of community capacity-building, deserves in-depth consideration and investigation over an extensive time period and within a human rights framework.

Lastly, this section provides some examples of capacity-building initiatives that draw on traditionally-based principles of restorative justice to address local law and order issues in Australia and internationally.

It should be noted that community consultations primarily with Indigenous women in April 2003 led the Commission to conclude that legislative approaches to facilitate community justice mechanisms based in the recognition of customary law (such as the establishment of a system of Indigenous tribunals) should not be pursued without adequate modeling at a policy level or without extensive consultation and local level participation of Aboriginal communities. There is also a need for existing community justice mechanisms to be given greater support at a policy level.

Recognising Aboriginal Customary law

Questions concerning the recognition of customary law within the western legal system, and the form this recognition should take, present a specific subset of issues in regard to self-determination and the accommodation of Indigenous cultural characteristics and aspirations within western societal structures. Some of the difficulties relating to the recognition of customary law at common law have been discussed above in relation in to limitations in the development of native title. The Australian Law Reform Commission Report into the Recognition of Aboriginal Customary Laws acknowledges the difficulties of recognising Aboriginal law and custom at common law as follows:

At common law local customs may be recognised and enforced as such provided that they meet certain stringent tests.. The categories of local custom that can be recognised as such do not appear to be closed. However in an oral culture evidentiary difficulties with proving the existence and continuance of a customary rule are likely to be overwhelming, as they were in Milirrpum's case (1971) 17 FLR 141. These difficulties make it unlikely that common law recognition of local custom would be a suitable way of recognizing Aboriginal customary laws (and in fact there is to the Commission's knowledge no Australian case where this argument has succeeded). Furthermore such local customs, even if proved to have existed for the relevant period of time, are vulnerable to repeal, expressly or by necessary implication, by legislation. As a vehicle for recognition the common law rules for recognition of custom are so limited in their scope as to be of little use. ⁽⁹³⁾

The ALRC Report recommended against the codification or direct enforcement of customary as part of Australian law, and instead advocated functional recognition, i.e. the recognition of customary law for specific purposes.

There is a popular and prevalent conception that a cultural match can be made between the operation of customary law and the mainstream legal system for example, that customary law can be retrieved and applied intact in contemporary circumstances, and that there would be some contiguity between the definition of offences and punishments under both customary and western laws.

This understanding of customary law does not take into account the reality that like all legal and political systems, Aboriginal law and customs are a product of specific historical, social and cultural processes. Discussions of customary law inevitably deal with the interface between western and Aboriginal political and legal systems in which customary law represents a translation of Aboriginal traditions and practice.

Moreover, to locate customary law as only having authenticity as a pre-colonial object is to suggest that Aboriginal culture is static and frozen in time, and that is not evolutionary like other cultures. It is also a profoundly disempowering move, as it does not permit Indigenous people the space to participate in determining the dimensions of their own polity within the current context of rapid global change. Christine Zorzi comments:

The potential for the entrenchment of interests of particular groups and the inability to accommodate progressive change within the community are both problems with the preoccupation with traditional forms of law. It deprives Aboriginal communities of their right to evolve, the Augustinian right to stray, to make experiments, to repudiate or stagnate a particular law, to represent a changing world - in short, the right to be a society. ⁽⁹⁴⁾

The recognition of customary law in the form of codification has the potential to lead to the distortion rather than the recuperation of traditional principles. Zorzi states:

Even if an individual community law can be accurately described, it is then altered by the way the western system administers justice. By its own definition, the codification of customary laws is an oxymoron. It represents the petrification of an oral tradition, ways of knowing that rely on hearing and speaking. But even if not codified, through its recognition by a western court, a rule becomes something completely different. Transformation by the legal system occurs. It is a distortion, by the processing of Aboriginal law through western processes, institutions and principles such as precedent and rules of evidence. For example, will the customary law be characterised as a tort, as a wrong between individuals, or a criminal offence, a wrong against the state? ⁽⁹⁵⁾

The potential for customary law to be distorted or eroded through recognition in the western legislature is acknowledged in regard to arguments for the exclusivity of customary law, and the need to maintain secrecy around certain aspects of its practice.

Discussions of 'bullshit customary law'⁽⁹⁶⁾ recognise the negative and corrosive impacts that contact with western cultures through dispossession and other colonising processes, more latterly globalization, have had on Aboriginal culture. For example, HREOC's consultations with women in the Northern Territory highlighted the ways in which contact with western culture had distorted traditional principles, such as the experience of double patriarchy by young women being asked to submit to more restrictive forms of 'traditional marriage' than is recognised by elders in the community.

A further issue relating to the recognition of customary law at the common law is that of the diversity of knowledge and practice of Aboriginal communities at a local level. In addition to the impact of colonizing processes, the degree of variety reflects what Christos Mantziaris and David Martin term the intense localism of Indigenous societies:

Indigenous societies are typically characterized by an intense 'localism', in which social, economic and political allegiances are constructed around locally based and small-scale forms and institutions, rather than in larger all-encompassing institutions based on larger socio-political units. Consequently, indigenous authority operates in contexts and domains which rarely extend beyond relatively small-scale groupings. Who has authority, over which matters, and in which contexts, may itself be contested, particularly for those groups with a long history of contact with non-indigenous society. ⁽⁹⁷⁾

Unlike Indigenous societies in other nations, such as Canada and New Zealand, the presumption of terra nullius by the colonizer meant that the sources and pretexts of Indigenous law and custom were not sought, which compounds the difficulty of defining the authority of customary law in the contemporary context.

Given the issues surrounding the difficulty of defining and codifying Aboriginal law and custom, it is essential that any policy or legislative approaches to recognizing customary law be flexible in response. This does not obviate the possibility of acknowledging formal knowledge of the existence of Indigenous legal and political systems at a constitutional level or at the common law, as in the case of Mabo The functional approach advocated by the ALRC enables both the recognition of the continuing existence of Aboriginal law and custom and sufficient flexibility for Aboriginal people to be self-determining in the definition of customary law. Functional recognition:

. maximises the extent to which Aborigines may retain control over their laws, and enables proposals to be formulated that reflect the fact that Aboriginal customary laws continue to be subject to external pressures, and that they vary from community to community, both in strength and content.' ⁽⁹⁸⁾

Additionally, it provides for the potential adjustment of the general law to take into account aspects of Aboriginal customary law, for example, in matters relating to sentencing.

The ALRC's functional recognition approach also permits a focus on the need for Aboriginal control and participation in developing forms of self-government in its recommendation against the establishment of a system of self-regulating tribal courts. In addition to the difficulties discussed above in relation to defining customary law in general law, the Commission argued that matters of Aboriginal law could be better considered at the level of local self-government with an emphasis on a flexible approach to developing justice mechanisms. Subsequently, '[p]articular courts could be established in response to genuine local demands or initiative, subject to certain basic standards. Alternatively, existing general courts could be retained if the local community so wished.' ⁽⁹⁹⁾

Functional recognition provides space for the acknowledgement of the hybrid and evolutionary nature of customary law, and for the further outworking of human rights related issues in relation to developments within international law. Examining customary law more broadly in the context of the exercise of Indigenous rights, particularly in regard to self-determination, raises issues concerning the need for Indigenous people to exercise greater control and decision-making in governance and capacity-building processes. In this context the development of community justice mechanisms represents one dimension of advancing Indigenous autonomy and self-government.

Community justice mechanisms as a form of capacity-building

Improved community justice mechanisms have the potential to make a significant contribution to addressing the inequality and disadvantage experienced by Indigenous people.

The current criminal justice system has a deleterious effect on Indigenous communities through over-representation of Indigenous people in custody, in large part due to historically derived disadvantage and ongoing systemic discrimination. Processes of separation through the criminal justice, juvenile justice and care and protection systems, combined with dysfunctional behaviour such as violence and abuse in communities are indicative of the inequality and extreme marginalisation of Indigenous people in Australian society. This is combined with the lack of attention the justice system gives to the high rate of Indigenous victimisation, particularly through violence and abuse in communities. Reform to criminal justice processes, including through community justice initiatives, must be responsive to these factors.

During 2001 the Social Justice Commissioner's office conducted consultations with people in the Northern Territory about mandatory sentencing and the introduction of juvenile diversionary programs. In various locations, older Indigenous people in particular express pain and sorrow that the younger members of the community caused trouble, and were fearful of the long-term consequences for community and cultural life.

Many people we met were victims of property crime and violent crimes themselves. They clearly saw it as in their interests, as Indigenous communities, to prevent crime. When all else seemed hopeless, some Indigenous people had asked for key troublemakers to be taken away from the community to detention. This was a sign of desperation, not of choice.

In remote communities in the Northern Territory, mandatory sentencing laws were seen as an imposed solution, without consultation. Imprisonment was not seen by Indigenous people as the solution to offending behaviour and did not make offenders accountable to their community. It was our clear impression that communities were struggling with levels of criminal activity, and that they were looking for new ways to address the underlying causes of crime and social breakdown. In particular, they were looking for new processes that would provide them with a greater role in addressing the underlying problems on their own terms.

One of the recommendations that the Social Justice Report 2001 made regarding juvenile diversionary schemes in the Northern Territory encouraged both the recognition of customary law and community participation in a review of program needs for young Indigenous people:

Recommendation 2: As an urgent priority, a review be undertaken by the Department of Justice to establish program needs across the Territory, particularly as they relate to regional areas and Indigenous people. The terms of the review should include examining methods for coordinating youth service delivery in justice, health and welfare related areas across government departments, including through the NT Police proposal for community youth development units, and the potential for Aboriginal customary law to be recognised through diversionary processes. The review should be conducted on the basis of widespread consultation, particularly with Indigenous organisations. ⁽¹⁰⁰⁾

If there is to be any improvement in the current situation of Indigenous people, more effective community justice mechanisms need to be developed. They must be accompanied by a return of control and decision-making processes to Indigenous communities if they are to lead to marked improvements in the situation faced by Indigenous people.

However, it is ultimately inadequate and counterproductive to focus on criminal justice issues in isolation from other capacity-building and governance issues. The broader canvas of Indigenous people's community-capacity building needs to be considered and addressed. The link between Indigenous socio-marginalisation and over-representation in the criminal justice system is well-recognised. Poverty and disadvantage are widely recognised indicators for offending behaviour. For example, although further research is needed to confirm the links, criminologist Chris Cunneen has noted the correlation between the highest rates of imprisonment of Indigenous people in the most disadvantaged areas of New South Wales. The ATSIC Murdi Paaki region (in western NSW) has the highest rate of matters proven before the local courts. Murdi Parki is also the ATSIC region classified as most disadvantaged in New South Wales. Kamilaroi region has the second highest rate of Aboriginal people appearing for local court matters and is the second most disadvantaged ATSIC region in New South Wales. ⁽¹⁰¹⁾

Some relevant issues that emerged in HREOC's recent consultations in the Northern Territory were the need to address some of the more fundamental problems as to why there are higher levels of crime and violence in communities. For example, the issue of family violence does not only need to be addressed at the level of providing reactive initiatives such as safe houses and night patrols but at the level of essential services. Better housing could limit children's exposure to violence and abuse (so that they are not at risk in the broader community); better education for parents regarding parenting practices and for children in regard to their rights was also cited.

The lack of program and service delivery coordination was noted: there tends to be a 'silo' approach from different agencies in working on discrete problems with a significant degree of overlap at times. There is a perceived need to address issues more holistically and to involve the community in consultations and solutions. The detrimental effects of cherrypicking a particular issue (e.g. alcohol abuse) in Aboriginal communities without providing adequate support for dealing with the broader context was also observed.

It is fair to say that to date many Indigenous community justice initiatives have emerged as a crisis management response to the inadequacies of the current system. They seek to deal with a situation, however fragmentary or temporarily, in order to avoid contact with formal criminal justice processes, over which there is a great level of mistrust. Such community-based processes are generally an add-on to the existing system - tolerated and allowed to operate in tandem with the mainstream system, yet not given the legitimacy or support necessary for them to challenge the fundamental basis of the mainstream system or result in any reconfiguration of relationships and responsibilities. Power is ultimately retained by the relevant authorities within the formal system.

That being said, some communities such as those on the Kurduju Committee have seen the area of law and justice as providing a starting point for community development and for establishing a framework for other capacity-building initiatives. Experience has shown that one-off initiatives and pilot projects offer limited gains. Existing community justice mechanisms will need a greater concentration of human and financial resources over an extended time-frame are to become the basis of greater Indigenous autonomy and governance. Investigation into far-reaching solutions involving comprehensive governance and capacity-building initiatives are warranted to facilitate genuine empowerment and self-determination.

On the basis of research into other community capacity-building initiatives, it is reasonable to expect that one size will not fit all and a variety of forms of modeling and agreement-making could be pursued in regard to community justice and other areas of self-governance. Issues concerning the jurisdiction of justice mechanisms within certain geographic regions may well be more appropriate in the context of considering governance structures such as regional authorities which exercise greater powers over service delivery and funding arrangements within a discrete (and usually remote) area. ⁽¹⁰²⁾

Social justice principles for capacity-building

The Aboriginal and Torres Strait Islander Social Justice Commissioner's Social Justice Report 2000 discussed approaches to strengthening governance within the context of developing a human rights framework for reconciliation. The Report identified the development of governance structures and regional autonomy as having the potential for a successful meeting place to integrate the various strands of reconciliation. In particular, an emphasis on governance is able to tie together the aims of promoting recognition of Indigenous rights with the related aims of overcoming disadvantage and achieving economic independence.

As James Anaya notes, '[s]elf-government is the political dimension of continuing self-determination'⁽¹⁰³⁾ . Governance mechanisms illustrate the point that self-determination does not necessarily entail secession or the creation of separate states, but can be articulated through the restructuring and renewal of existing relations between Indigenous organisations and government to create arrangements to reflect and support a diversity of Indigenous circumstances.

The Social Justice Reports for 2000 and 2001 examined progress to date on some of the governance and community-capacity building initiatives in light of the need to advance reconciliation in meaningful and productive forms. The Social Justice Report 2000 identified the following principles in regard to implementing greater regional autonomy and Indigenous governance:

Flexibility and diversity: Greater regional autonomy and improved governance mechanisms do not necessarily mean the establishment of new structures and authorities. There is also no 'one size fits all' model that will suit the circumstances of all Indigenous people and communities. It is essential that a range of strategies and mechanisms be considered to develop and facilitate improved governance and autonomy.
Over-regulation: The tendency for government to over-regulate Indigenous people, by imposing burdensome and inflexible structural arrangements for organization, must also be borne in mind. The Aboriginal Councils and Associations Act 1976 (Cth), for example, has been described as 'a classic piece of over-regulation'⁽¹⁰⁴⁾ and there is concern that the prescribed bodies corporate provisions of the Native Title Act 1993 (Cth) are too elaborate and may create a situation where 'a really free and spontaneous people become people governed by legal regulation'. ⁽¹⁰⁵⁾ Indigenous people should design regional governance and autonomy mechanisms that are suitable to their needs and aspirations with government providing the necessary support for such structures.
Effective Indigenous participation: All levels of government should acknowledge that facilitating Indigenous people's efforts to achieve such autonomy and improved Indigenous governance is vital to achieving improvements in Indigenous disadvantage and the recognition of Aboriginal and Torres Strait Islander rights. Government efforts should be focused on negotiating governance arrangements with Indigenous peoples, including through the provision of appropriate support (including technical support to build capacity, long-term funding arrangements and legislative backing).
This is consistent with the key finding of ATSIC's regional autonomy report, which recommends that there should be 'prioritisation of agreement-making to inform partnerships with Government and other agencies as a means of progressing autonomy from the "bottom up" in preference to further governance structures at this point in time'. ⁽¹⁰⁶⁾ It is also consistent with the recommendations of the Social Justice Package proposals made by CAR, HREOC and ATSIC in 1995. ATSIC proposed that the Commonwealth accept 'the concept of regional agreements as a framework for establishing a range of formal relations and settling of outstanding social justice issues on a regional basis'. ⁽¹⁰⁷⁾

The Social Justice Report 2001 discussed some of the capacity-building initiatives in train such as the Mutitjulu Community Participation and Partnership Agreement and the Yorta Yorta Yenbena Training Centre. It made the following observations about the factors needed to increase Indigenous participation and control over decision-making processes at a community level:

Financial commitments: There needs to be a commitment from government beyond a 4-year funding period to make any inroads on the current situation.
Interagency involvement: There needs to be clarity about the forms of commitment various partners are to make, including to meeting assessable goals and objectives over a set time-frame.
Flexibility: While some modeling is relevant and transferable to other communities, it is essential that Indigenous people should not be restricted to one model as a means of pursuing greater autonomy and control over their affairs. Other initiatives for furthering Indigenous capacity and governance, including those based in native title, should also be encouraged.
Ownership: Governance models must be owned by Indigenous people themselves and the relationship of Indigenous kinship and authority structures to the processes and structures of these models must be taken into account. ⁽¹⁰⁸⁾

The Social Justice Report 2001 comments:

. it is important that some of the more fundamental issues concerning the respective roles and authority of Indigenous, government and other partners are re-visited, or in time these new models may run the risk of becoming yet another case of a failed Indigenous policy initiative and a further source of 'blaming the victim'. ⁽¹⁰⁹⁾

Customary Law and community justice models

This submission will now consider some examples of the use of whole-of-community approaches to the development and implementation of law and order measures in Indigenous communities in Australia. The Queensland Community Justice Groups and the Kurduju Committee in Central Australia could be classified as Indigenous forms of community governance and dispute resolution that draw on traditionally-based principles of restorative justice. The experience of these initiatives indicates that the negotiation and implementation of customary law principles can occur profitably from the 'bottom-up' at the local level.

It is beyond the scope of this submission to discuss models for community capacity-building and governance relating to areas other than that of law and justice extensively. Discussion of Indigenous community capacity-building and governance models such as the ATSIC Murdi Paaki Regional Council Plan in New South Wales, the Cape York Partnerships Plan, the Torres Strait Regional Authority, the Mutitjulu Community Participation and Partnership Agreement and the Yorta Yorta Yenbena Indigenous Training Centre can be found in the Social Justice Reports for 2000 and 2001. ⁽¹¹⁰⁾

Community Justice Groups in Queensland

The Community Justice Group project was started in Kowanyama, Hopevale and Palm Island in 1993 as a pilot project of the Queensland Corrective Services Commission. The Community Justice Group model aims to:

.provide Aboriginal people with a mechanism for dealing with problems of justice and social control which is consistent with Aboriginal Law and cultural practices as well as utilising aspects of the Anglo-Australian legal system. The justice groups have no statutory authority. The source of authority for the group is based on the collective and personal authority of group members deriving from the place of individuals within kinship systems and the personal respect they are accorded by others. Ultimately the group's authority lies in Aboriginal Law and cultural practices. ⁽¹¹¹⁾

The Community Justice Groups use traditional structures and cultural principles to develop and apply their own system of justice and social control. They seek to restore social order by curbing anti-social behaviour and by creating a more positive and supportive environment.

Group actions that they handle within the existing legal framework include family-related dispute settlement, crime prevention and community development projects, co-ordination with government and community agencies and providing information and advice to the judiciary, Community Corrections Boards and other government decision making bodies. ⁽¹¹²⁾

Perceived positive outcomes for the model include: decline in crime rate and level of violence; an effective community corrections program at Palm Island that has kept people from appearing before court and from possible incarceration; dramatic decrease in juvenile crime at Kowanyama; changes in social patterns; more effective government service delivery, leading to savings in time and money for government and community agencies, courts, law enforcement agencies and correctional centres. ⁽¹¹³⁾

Perceived negative outcomes for the model include: harsh punishments; potential drain on the community's resources; acting without statutory authority; and a lack of indemnity for justice group members. ⁽¹¹⁴⁾

The Community Justice Panel (CJP) works with clan groups on the Cape where it has been more successful than in Cairns as it is clearer who belongs to each group. In Aurukun, for example, 16 groups are represented on the CJP. All positions are voluntary (panel members often work as CDEP foremen and councillors during the week) except for the coordinators, who may be either Indigenous or non-Indigenous. The coordinators are often the first point of contact. They use feedback from magistrates to provide pre-sentencing reports and options for incarceration. It is envisaged that the next level for CJPs will be to move beyond by-law issues to a more major role with magistrates, taking more of their role but without removing it and developing culturally-appropriate punishments rather than using gaol as a last resort.

The CJP model is an evolutionary process, with options at each stage to be trialled before the justice groups go on to the next stage. Restorative justice is seen as a way of handing power back to the people. The CJPs also encourage generational change through the participation of younger people. However, younger people returning to the communities who have received outside education often don't apply what they've learnt because not given enough opport

Site navigation

Aboriginal & Torres Strait Islander Social Justice navigation