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Indigenous Peoples:Issues in International and Australian Law

 

Seminar Two: Recognising Aboriginal and Torres Strait Islander customary law – international and domestic law implications


The second seminar in the series was held on Thursday 20th November 2003 on the topic of Recognising Aboriginal and Torres Strait Islander customary law: international and domestic implications. The seminar was chaired by Margaret Brewster, then President of the ILA (Australian Branch). The President of the Human Rights and Equal Opportunity Commission, the Hon John von Doussa, provided introductory remarks. Papers were presented by the then Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission, Dr William Jonas AM, and Ms Megan Davis, Faculty of Law, the University of New South Wales.

Papers presented at the seminar:

The Hon John von Doussa - Introductory remarks

I’d like to begin by acknowledging the Gadigal People, the traditional owners of the land where we are meeting today. On behalf of the Human Rights and Equal Opportunity Commission, I would like to welcome you to this workshop on the recognition of Aboriginal Customary Law.

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

The issue of Aboriginal Customary Law is one of the most difficult that we face in reconciling Indigenous and non-Indigenous legal traditions in this country. Aboriginal Customary Law as a shorthand term refers to Indigenous traditions and systems of law and governance across all areas of cultural life. This includes what we would classify in the non-Indigenous legal system as family law, intellectual property, marriage, criminal law, succession, and systems of dispute resolution. Like the recognition of native title and the debate about a treaty, it poses a challenge to the existing relationship of Indigenous peoples with the State.

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

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

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


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

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

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

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

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

All these issues look mainly to the limits of recognising Aboriginal Customary Law. But from the perspective of reconciliation and the coming together of two cultures, there is also the question of how can the non-Indigenous legal system itself change and adapt to recognise Aboriginal Customary Law. These are some of the issues that our speakers will grapple with this afternoon.

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

The Court of Appeal found there was no inconsistency between the English legislation and custom because the English legislation, in directing that the Court should take into account numerous considerations, included a direction to the Court to take into account any other relevant circumstances. The Court of Appeal held that the custom laws about succession to land and inheritance were relevant circumstances, and the English legislation allowed them to be taken into account and reflected in any order made by the Court. That case shows that through a common statutory provision allowing the Court to have regard to any other relevant matter, custom law could be recognised and taken into account.

First, we will hear from the Aboriginal and Torres Strait Islander Social Justice Commissioner at HREOC, Dr Bill Jonas who will provide a domestic perspective. Commissioner Jonas will address issues of human rights compliance as well as providing some comments on recent developments in Indigenous community justice mechanisms and the report of the Northern Territory Law Reform Committee, released a fortnight ago. Our second speaker will then be Ms Megan Davis of the Gilbert and Tobin Public Law Centre at the University of New South Wales. Ms Davis has served an internship in the Office of the United Nations High Commissioner for Human Rights and has participated as an advisor to ATSIC and others in negotiations on Indigenous rights in international forums, including the United Nations process on the Draft Declaration on the Rights of Indigenous Peoples and the World Intellectual Property Organisation. Ms Davis will talk about the international implications of recognition of Aboriginal Customary Law, including on issues relating to intellectual property regimes.

Dr William Jonas AM - The Recognition of Aboriginal Customary Law

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

I’d like to begin by acknowledging that this is the first public event that I have hosted since the appointment of Justice John von Doussa as President of the Human Rights and Equal Opportunity Commission. My fellow commissioners and staff have been delighted by his appointment and I am very pleased that he is able to join us here today.

Now I have to admit – we have been totally overwhelmed by the response to this workshop. We didn’t ask people to RSVP, although many of you did – so many in fact that we started to get very worried about how many people were actually going to turn up and so decided to change the venue so you could all fit in the room. I have been wondering why exactly there is so much interest. I thought that I would start by posing a question to you, which is why is the issue of Aboriginal Customary Law of such interest to such a wide range of people? Hopefully we can reflect on this in discussion after the presentations.

I wanted to begin by reflecting on a workshop that I attended in Madrid last week. The workshop was organised by the Office of the United Nations High Commissioner for Human Rights to support the work of the UN Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people, Professor Rodolfo Stavenhagen. It was on the theme of Indigenous peoples and the administration of justice. Approximately 25 experts from across the world were convened to discuss the key issues facing Indigenous peoples in criminal justice related areas, to identify best practice and solutions to this situation, and to make recommendations to relevant actors within the United Nations system.

Even though I have now participated in many UN forums, I remain quite surprised by the similarities in the situation of Indigenous peoples in differing regions of the world. Not only are there similar problems identified as existing for Indigenous peoples no matter where they live; but there are also similar approaches being adopted to address this situation and a commonality of the underlying principles and assumptions that need to be recognised if progress is to be made or extended.

Throughout the workshop we heard examples of the importance of recognising Indigenous customary law systems and developing and strengthening Indigenous community justice mechanisms in order to break the cycle of offending by Indigenous peoples, deal with the underlying causes which lead to disproportionate rates of contact at all stages of the administration of justice and strengthen Aboriginal communal structures. During the workshop the Special Rapporteur, Professor Stavenhagen, asked two sets of questions to the experts which he saw as crucial in addressing how Aboriginal customary law systems could be recognised. He was, he confessed, playing devil’s advocate, but his two questions will be familiar ones to you. He asked:

First, how do you make the legal system work better for Indigenous
peoples and how do you incorporate Indigenous legal systems into the
mainstream legal process without violating the universality of human
rights? In other words, how do we recognise Aboriginal customary law in
a manner that is non-discriminatory?

And second, providing that you can recognise Indigenous legal systems in
a manner that is non-discriminatory, how do you guarantee individual
human rights within Indigenous communities, particularly for women and
children?

These questions really are the key issues that have to be addressed for there to be much progress in recognising Aboriginal customary law systems. They are also the issues around which the international and domestic implications of recognising Aboriginal customary law converge. In relation to the first set of questions, for example, the position of our federal government is clear. In its response to the Council for Aboriginal Reconciliation’s documents, the government states that it:

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... Neither the government nor the general
community... is prepared to support any action which would entrench
additional, special or different rights for one part of the community.

In similar debates in recent years I have noted that this type of concern is misplaced for practical reasons. In the Social Justice Report 2000, I stated that the view of equality that this reflects ‘however popular, does not reflect reality. The view that everyone should be treated the same overlooks the simple fact that throughout Australian history Indigenous peoples never have been... The failure to provide us with the same opportunities as the rest of society in the past means that to now insist on identical treatment will simply confirm the position of Indigenous people at the lowest rungs of Australian society’ (Social Justice Report 2000, p19).

These types of comments also reflect what I consider to be a common misunderstanding of the principles of non-discrimination and equality before the law. 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.

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.'

The Human Rights Committee, which oversees implementation of the ICCPR, and the Committee on the Elimination of Racial Discrimination, have adopted a substantive equality approach to the meaning of non-discrimination. 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. They are defined in Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination.

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. The purpose of the intended measure must be protective and not motivated by discrimination itself; and for this reason it cannot be imposed. In other words, there must always be the choice for, in this case Indigenous peoples as the intended beneficiaries, to accept or reject the proposed form of recognition.

In Australian law, section 8(1) of the Racial Discrimination Act 1975 (Cth) exempts special measures from the prohibition of racial discrimination in section 9 of the Act. In explaining the requirements for a special measure under the Racial Discrimination Act, Justice Brennan has stated that:


Justice Brennan made these comments in Gerhardy v Brown, which remains the lead case on the meaning of special measures in Australian law. The High Court has been extensively, and in my view rightly, criticised for its decision in this case. In Gerhardy, the High Court found that land rights legislation constituted a special measure and was not racial discriminatory. The criticism of this comes from the application by the Court of a formal equality approach to interpret the Racial Discrimination Act 1975 (Cth). 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.

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 that my office has previously argued meet the test of being 'reasonable, objective and proportionate' and accordingly mandate appropriately different treatment to achieve substantive equality.

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'.

In my 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, however, 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.

On either basis, 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.

We can then move on to the Special Rapporteur’s second question – namely, guaranteeing individual rights. I consider this issue in depth in my submission to the Northern Territory Law Reform Committee’s inquiry into customary law from earlier this year. That submission, and one focused on the gender dimensions of recognising customary law by the Sex Discrimination Commissioner, is available on the internet from HREOC’s website.

I will only highlight a few key points about this issue here due to time. First, it needs to be recognised that all human rights are indivisible, with no hierarchy of recognition of these rights or special status given to one over the other, including group versus individual rights. In many instances there will be no conflict between individual and group rights and they will be able operate in an interdependent manner. As my predecessor as 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.

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.

Second, as discussed above, there is a crucial issue of consent that is relevant to an activity or form of recognition being accepted as non-discriminatory or a special measure. As the Sex Discrimination Commissioner noted in her submission to the NT customary law inquiry, too often women’s voices are excluded from consultation and negotiation processes. It is quite critical that such voices are not ignored, particularly in determining the consent or willingness of a community for customary law processes to be recognised or to create some impositions on that community.

Third, however, there will 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.

In relation to Article 27 of the ICCPR, the Human Rights Committee has noted that there is positive obligation on States to protect minority group rights and cultures. The Committee has also 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 (non-discrimination provisions of) the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population’.

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'. 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). And 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... 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.

The Committee has also expressed concern about domestic violence, including forced sexual intercourse, within the context of marriage.

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 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 and that States are required to act to protect women against violence of any kind occurring within the family, workplace or any other area of social life and that traditional attitudes which subordinate women, including forced marriages, will breach that Convention. There are further examples that could be used in relation to the Convention on the Rights of the Child and other international treaties.

The specific rights of minorities and indigenous peoples that have been recognised under Article 27 of the ICCPR are therefore qualified by the requirement that their enjoyment shall not prejudice the enjoyment by all persons, including individuals from within the group, of all universally recognised human rights and fundamental freedoms. 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.

So the issue is not whether Aboriginal customary law can be recognised in accordance with human rights standards but how to guarantee this. And this issue of how is in my view a very difficult one. This is where we need further debate and research - not on the issue of whether we should provide recognition but on how we can provide appropriate recognition. Again, I think that the submissions that HREOC made to the NT inquiry provide extensive guidance for how to go about this process and the underlying principles that ought to be observed by governments.

I will give you one example. We recommended to the NT inquiry that a provision be inserted into the Sentencing Act that states that the judiciary must determine in all matters whether customary law is a relevant consideration, and if so, to provide appropriate weight to customary law and to apply it consistently with human rights. We proposed this as an alternative to a provision that states that customary law does not apply in specifically elaborated circumstances as generally it will be difficult to elaborate what those circumstances are with sufficient clarity and without limiting judicial discretion. The benefit of framing the provision in terms of positive recognition of customary law should be clear, as should the benefits of having the judiciary consider such recognition in all cases in order to provide greater consistency of application of customary law. It would certainly be unfortunate if the only references to Aboriginal customary law that emerged were excisions of where such law could not be recognised, or forms of non-recognition.

I want to now make some practical comments about customary law processes and then to briefly refer to the report of the Northern Territory Law Reform Committee, which came out two weeks ago.

At a practical level, it is important to note that there are a range of formal processes recognising customary law currently in place across Australia, as well as informal recognition by the judiciary in some circumstances. Formal processes include community justice groups in Queensland, as trialled in Hopevale, Kowanyama and Palm Island from 1993; the law and justice committee process trialled in Lajamanu, Ali-Curung and Yuendumu in the Northern Territory; the Ngunga Court and most recently the Ngunga Youth Court in South Australia; Circle Sentencing in NSW; the Koori Court in Victoria and Murri Court in Queensland.

Many of these processes have emerged out of negotiations between Indigenous communities and government and out of a partnership approach. Many are small trials which have been expanded when the initial trials have proven successful. This has been an important factor, as these trials are often more resource intensive than usual processes due to the need for extensive consultation, education and training in the community, customisation of programmes to the individual community needs and the consequent higher cost. Formal schemes that are not resourced or developed properly will be counter-productive and will potentially undermine important considerations such as the provision of adequate human rights protection.

It is also important to note that many of these schemes take an expansive view of what customary law is. Customary law evolves. It changes to the circumstances of the community exercising it, and in some cases it can be revived (if only partially). It is a reflection of living, breathing and changing Aboriginal cultures. Attempts to consign customary law to an earlier time will result in the strengths of many Aboriginal communities being excluded from devising solutions to difficult, intransigent problems. It will only lead to a continuation of what can only be described as the utterly hopeless and ineffective approaches that exist today.

The fact that Indigenous involvement in sentencing processes is taking place in urban areas in the most settled eastern sea-board states, such as through the Koori, Ngunga and Murri Courts and circle sentencing, demonstrates the vitality and evolving nature of customary law. The first year review of circle sentencing in NSW acknowledges that the concept emerged from the desire of the community in Nowra to strengthen its system of customary law. It is fundamentally a customary law response, though classically it might not be described as such by some people.

Fundamentally, what these processes do is recognise the role of the Indigenous community in devising solutions to issues being faced by the community. For too long there has been insufficient attention to high rates of Indigenous victims of crime. The reality that the only solution to such victimisation that is recognised and implemented through the legal system is to lock up the offenders has split Aboriginal communities, and often led to under-reporting of crime, or tolerance of crimes that are in fact intolerable, such as family violence. That is why my first recommendation to the NT inquiry was that the government acknowledge the importance of recognising customary law in order to develop and maintain functional, self-determining Aboriginal communities and that such recognition would benefit all members of the community by creating safer communities.

Despite these initiatives that I have mentioned, however, it is clear that there is still only limited recognition of customary law, that it is generally limited to the sentencing stage of the process rather being recognised as playing a role through a more holistic approach to community justice, community safety, crime prevention and healing and restorative justice; and that it is uneven in its application across the country. This last point is largely inevitable in a federation where criminal law is by and large a state and territory responsibility. But it demonstrates that we still have a long way to go.

Let me now conclude with some brief comments on the NT Law Reform Committee’s recent report on customary law in the Territory. The report came out two weeks ago. The Committee has described its report as ‘confined to practical steps which can be taken immediately’. The report correctly predicts criticism of the Committee’s confined and limited approach as ‘unwelcome gradualism’.

The report contains a number of important findings. It finds that customary law is being widely practised across the Northern Territory. It recognises the ability of customary law to assist with law and justice issues in communities and to assist positive outcomes with respect to social well-being. It finds against codification of customary law, preferring to leave interpretation and evidence of what is customary law to Indigenous communities. It therefore seeks to focus on how to empower Indigenous communities to implement customary law. This is within limitations of respect for human rights and compliance with the criminal code, but with full acknowledgement that Aboriginal communities are best placed to define their own problems and solutions.

The Committee’s approach is general in scope and based on incremental change which seeks to create small scale success by building on existing Indigenous community efforts and then multiply it. These are important findings and practical realities. Ultimately, they are let down by the report being far too general in some parts and with some of its recommendations being quite underwhelming. There is also disappointingly very little reference in the report to any submissions to or consultations undertaken by the Committee during the course of their inquiry. This would have provided some more detailed options for consideration by the NT government.

As a result it is no wonder that there have been some calls from within the Territory for a national inquiry into customary law. I personally, however, do not favour such an inquiry. We are not looking for justifications as to whether customary law should be recognised and we are not looking for nationally applicable approaches. It is time to provide greater support at the ground level in communities to articulate what communities want and where they want to go, and to then assist them to develop the skills and capacity to get there. The NT inquiry, though extremely limited in scope, provides the tools to do this. The efforts of the Northern Territory government, as demonstrated by the Indigenous economic forum that it held last year and its indigenous governance conference of last month, demonstrates that the type of change envisaged by the Law Reform Committee is consistent with its current approach and is feasible. It is up to communities in the Territory, to ATSIC and ATSIS, to AJAC and to the Northern Territory government to simply get on with the job.

As I stated in my submission to the Northern Territory inquiry:

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...

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.

Thank you.


Megan Davis - The Recognition of Aboriginal Customary Law and International Law developments.


I’d like to begin by acknowledging the Gadigal People, the traditional owners of this land.

I would like to thank the ILA, in particular Greg Marks, for inviting me here to speak. I am honoured to deliver this paper alongside Bill Jonas. I, like many indigenous people, admire Bill, who has worked tirelessly for my people as the Aboriginal and Torres Strait Islander Commissioner and the Social Justice Commissioner.

I too was surprised by the interest in the seminar and indeed the number of calls I had received from anthropologists and academics who had been working in the field for decades, inquiring as to what new and innovative thinking or strategy Bill Jonas and I were unveiling here today.

Well, it was a bit embarrassing to keep saying we aren’t really unveiling anything, but this seminar is an excellent opportunity to provoke some comment and exchange ideas and opinions on this complex issue.

Perhaps the renewed interest has come on the back of the Northern Territory and Western Australian inquiries into customary law[1] and the media publicity of the Jackie Pascoe controversy last year where customary Aboriginal law and human rights were big news items. Perhaps it is not renewed interest at all but an issue where many in the community would like to see some concrete developments. It will be interesting to later on hear people’s reasons for being here.

Just briefly, my own interest in the recognition of customary Aboriginal law or Aboriginal law is, apart from being Aboriginal (Wakka Wakka), related to my work in international human rights law. For about six years I have been working in the area of international human rights and indigenous people, as a law student with the Foundation of Aboriginal Islander Research Action in Brisbane, as a UN Fellow in Geneva, and now as an academic. This is a perennial issue for Aboriginal people and an unresolved one.

In terms of substantive work, this year has seen a lot of interest in the intersection of Aboriginal customary law and international human rights law. Like Bill, I have been recently overseas (about a month and a half) and both times I was presenting papers on how Aboriginal customary law intersects with the Australian legal system. The first workshop in Ottawa, with the World Intellectual Property Organisation (WIPO), looked at ways to recognise indigenous traditional knowledge including potential sui generis models. Interestingly, my brief from WIPO was to survey Australian case studies that WIPO provides as examples of the way in which Aboriginal customary law can be recognised or accommodated within a common law system without the creation of a sui generis model. The second workshop was in Spain, at the Onati Institute of the Sociology of Law, looking at feminist or women’s perspectives of international law and globalisation in the new millennium. Here, I delivered a paper on the ‘Globalisation of International human rights law and its impact upon Aboriginal women’.

From intellectual property rights to the rights of women, the potential scope of recognition of Aboriginal law is wide. It moves beyond the popular image of customary law as it relates to criminal law and criminal justice. (Indeed I remember at the University of Queensland Law School typically Queensland discussions of Aboriginal customary law rarely moved beyond ‘spearing’ and ‘payback’).

What is Aboriginal custom?

The right to manifest, practise, develop and teach custom (as provided in the UN Draft Declaration on Indigenous Peoples Rights, for example) is an important right. The protection of customs, traditions, language and ceremonies is vital for all Aboriginal people in Australia. It is key to the survival of indigenous cultures globally.

In Australia, it is as relevant for those Aboriginal people who continue to practise Aboriginal law in rural and remote areas as it is for those Aboriginal people whose custom and tradition is essentially a modern evolving construct, a hybrid of experience, of culture and of mythology that is the inevitable result of displacement, of systemic dispossession policies of successive state and federal Australian governments.[2]

The content of Aboriginal law is as diverse as Australia’s many Indigenous cultures are diverse and vibrant expressions of Aboriginality (I acknowledge too that this term is controversial for many Aboriginal people).

Human rights and Aboriginal customary law

As I alluded to before, the most vivid and most recent example of the public debate on the intersection of Aboriginal customary law and the legal system came with the decision in Jackie Pascoe v Peter William Hales,[3] particularly the comments made by Justice Gallop. Equally engaging were the comments of Justice Riley in Hales v Jamilmira.[4]

The debate was quite polarised, with some human rights lawyers arguing that Aboriginal customary law must be 100 per cent consistent with international human rights norms and that it must evolve to reflect those norms. There were other arguments that human rights are only a relatively recent concept when compared to Aboriginal culture and that:

on such issues Australia's legal system may simply have to bite the bullet and go against the norms of international human rights. Human rights are essentially a creation of the last hundred years. These people have been carrying out their law for thousands of years.[5]

At the time, some aspects of the media also investigated the notion of distorted customary law or bullshit law that is sometimes used in mitigation of sentencing for criminal offences of violence and sexual abuse against women. On Radio National’s, the Law Report, for example, one commentator argued that the Australian legal system was an adversarial system and therefore lawyers are entitled to use any arguments at their disposal to get the client off.[6]

So, the common question that is asked by international lawyers is: how can aspects of Aboriginal law be reconciled with human rights norms, and, more commonly, how do you protect the rights of women and children or reconcile group rights with the rights of the individual?

Well, the international jurisprudence already shows that this can be done without derogating from human rights norms and must be done with appropriate safeguards. Indeed, it is surprising to see that when controversies do occur like the Jackie Pascoe controversy, the public discussion goes back to ‘Step One’: can Aboriginal law be recognised consistently with human rights?

Yes it can.

‘Step Two’, the stage at which Australia, as a nation that has lived with Aboriginal people for over 214 years, should be, is the debate on how you do it. And that’s where the recommendations and submissions to the Northern Territory inquiry, including the excellent submissions of both the HREOC Aboriginal and Torres Strait Islander Social Justice Commissioner and the HREOC Sex Discrimination Commissioner provide important strategies for this to be done.

My brief today was to look at the international human rights law framework relating to the practice of Aboriginal customary law within States. I think Bill has successfully addressed the reconciliation of individual and group rights and the notion of special measures. I also agree with him that the time for ‘Step 1’, in terms of still asking ‘can Aboriginal customary law be recognised in accordance with human rights standards?’, has really passed. We are now at step 2, how can we provide that recognition, how do you guarantee that it is consistent?

Indigenous people at the United Nations

By way of general background, the past three decades have seen indigenous peoples make enormous inroads into the consciousness and processes of the United Nations and indeed international law.

Through access to the UN, and with the assistance of the UN, indigenous peoples have been able to highlight the injustices that have been suffered and the inequity that has been entrenched as a result of successive waves of imperialism, colonisation and now trade liberalisation. (Indeed my current research project gauges the positive and negative impact of trade liberalisation upon indigenous peoples.)

The principal body of human rights treaties contain important principles relating to the treatment and rights of indigenous peoples within states. There is a distinct and growing body of jurisprudence in international human rights law that specifically engages with indigenous peoples. The employment of human rights discourse in the relationship with the State has been a powerful and effective tool.

The institutional framework of United Nations mechanisms specifically dealing with indigenous issues includes:


As I have stated all of the principal human rights treaties elaborate standards that are relevant to indigenous peoples.[10]

International Covenant on Civil and Political Rights (ICCPR)

Article 27[11] is the oft-quoted ICCPR provision that protects the right of indigenous peoples to maintain culture and language and religion where it differs from the majority group (so it’s a protection and different to a right to be free from discrimination on the grounds of language etc). The Human Rights Committee jurisprudence on Article 27 has frequently dealt with indigenous issues.[12]

It emphasises positive measures. Such protection must be justifiable as being ‘directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned’.[13] They are rights that cannot be practised inconsistent with other ICCPR rights.

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

The Committee on the Elimination of Racial Discrimination has called on parties to:

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.[14]

The Convention on the Elimination of Discrimination against Women (CEDAW) – customary law and women’s rights

The Convention on the Elimination of Discrimination against Women (CEDAW) requires States Parties to take measures to facilitate the modification of traditional cultural practices in the realisation of women’s human rights:

States Parties shall take all appropriate measures ... to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.[15]

The United Nations Development Fund for Women (UNIFEM) has emphasised the need to ‘...replace harmful customs with new practices that respond to current needs’.

Advocates of gender equity must recognize and challenge the social acceptance and perpetuation of harmful traditional practices in all cultures. Historically, religion and culture have proven extraordinarily adaptive; most belief systems have been revised over time to accommodate new understandings and new values that emerge in human society. Numerous cultures offer examples of traditions, including customs harmful to women, that have changed or died out. For generations, women (and some men) in Sudan endured mutilation to acquire face marks, a traditional sign of beauty as well as an indicator of tribal affiliation. In recent years, this tradition has rapidly disappeared. The binding of women's feet in China is another example of a nearly universal custom that is no longer practiced.[16]

In considering the relationship between protecting minority rights and the rights of women to equality, the Human Rights Committee has confirmed the importance of upholding women's rights. The Human Rights Committee has also noted 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...[17]

Thus:

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.[18]


According to the HREOC Sex Discrimination Commissioner, international law hasn’t adequately addressed customary law and international human rights:

While it is clear that there are cases internationally where women's individual human rights and minority rights are in conflict, international human rights law has yet to consider this issue in relation to Aboriginal Customary Law. Aboriginal Customary Law may be as diverse as Aboriginal communities and there can be disagreement as to what constitutes Aboriginal Customary Law. In these circumstances, a contextual approach to resolving apparent conflict that acknowledges the individual circumstances involved is more likely to resolve potential conflicts.[19]

Convention on the Rights of the Child (CROC)

Article 30 of this widely ratified convention provides that:

In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

International Labour Organisation 169

This convention provides in respect of indigenous peoples and customary law as follows:

Article 8:

[Indigenous peoples] shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognized human rights.

Article 9(1) provides that, subject to the same limitations:

the methods customarily practised by the peoples concerned for dealing with offences committed by their members shall be respected.

UN Draft Declaration on the Rights of Indigenous Peoples

An open-ended inter-sessional Working Group on the Draft Declaration was established in 1996. For nine sessions this Working Group of the Commission on Human Rights struggled to establish consensus on the text of an international declaration elaborating the rights of Indigenous Peoples.[20] The text of the Draft Declaration originated from within the standard setting mandate of the United Nations Working Group on Indigenous Peoples (UNWGIP).[21]

It is an innovative text enumerating controversial rights such as the right to self-determination, right to land and resources (including restitution and compensation) and collective rights. The text was drafted in consultation with indigenous peoples who had participated in its development through the Working Group on Indigenous Populations since 1985.[22]

Australian law and practice

There have been examples of the Australian common law accommodating aspects of customary law particularly in the field of intellectual property. While the situation regarding indigenous intellectual property and protection of traditional knowledge is far from resolved, there are examples of the courts finding traditional custodians as having an equitable interest in artwork where there had been a copyright infringement which entitled the traditional custodians to equitable relief.

In the Bulun Bulun case[23] the Federal Court found that traditional custodians in certain circumstances have a fiduciary obligation to protect ritual knowledge in artistic work from being exploited. The court found that:

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...[T]he question for the court is whether those Aboriginal laws can create binding obligations on persons outside the relevant Aboriginal community.[24]

In determining how customary law intersects with the common law of Australia the court went onto say that:

The conclusion that in all the circumstances Mr Bulun Bulun owes fiduciary obligations to the Ganalbingu people does not treat the law and custom of the Ganalbingu people as part of the Australian legal system. Rather it treats the law and custom of the Ganalbingu people as part of the factual matrix which characterise the relationship as one of mutual trust and confidence.[25]

It is interesting to note that the Australian government has used these cases and many others to demonstrate to the TRIPS (Trade-related Aspects of Intellectual Property Rights) Council how the existing intellectual property systems can provide protection for traditional knowledge. In 2000-2001 WIPO undertook a major investigation of Australian intellectual property laws and how existing systems can be used..  According to the Australian government, in its submission to the TRIPS Council, before there can be a discussion on a sui generis system, full account must be made of the progress of the existing legal framework and its evolution toward the protection of traditional knowledge. It is the author’s contention that those cases are simply examples of when matters have reached the court and are an exception to the rule.   While examples of obiter dicta have assisted indigenous people in advocacy for reform, the scope for judicial creativity is very limited and it is the role of government to legislate to protect these unique rights.  It is the nature of Australia’s representative government and separation of powers that the evolution of such reform won’t come from the courts The ‘judicial creativity’ Australia refers to in the report must become legislative creativity.

Conclusion

The Australian legal system has recognised the existence of Aboriginal customary law in respect to our property rights, or native title. This was made clear by Australian High Court in Mabo (No 2) which held that the nature and content of native title will be shaped by ‘the laws and customs’ of the traditional landholders. This fundamental recognition of customary law was directly influenced by the developments of international human rights law, in particular the international prohibition of racial discrimination as exemplified by the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) which Australia signed in 1966. The High Court’s rejection of Australia as terra nullius, empty of or without peoples governed by a system of set of laws, was consistent also with the decision of the International Court of Justice in the Western Sahara case of 1975.[26]

The acquisition of Australia by way of ‘peaceful settlement’ as opposed to cession (by way of treaty agreement) or conquest, resulted in the domestic law completely denying Aboriginal customary law and jurisdiction. Although there was some early attempt by the New South Wales judiciary to draw upon United States case law to recognise that Aboriginal people were a sovereign people ‘entitled to govern themselves according to their own laws and customs’, this jurisprudence was not accepted by the domestic legal system.[27] In the United States, the limited recognition of Indigenous sovereignty has meant also recognition of customary law, as illustrated by the Navajo Tribal Court system, which incorporates a ‘Peacemaker’ system drawing on customary law.

The growing body of law relating to Indigenous peoples’ international human rights can provide the necessary legal foundation in Australia for the recognition of customary law.[28] In addition to the ICERD, as discussed above Australia is also a binding signatory to the ICCPR, where Article 27, as noted above, requires States to respect the culture of Indigenous peoples. Indigenous peoples rights to self determination, at least of an ‘internal’ nature, has also been recognised by the Human Rights Committee. The manner in which these rights can be domestically implemented can clearly include the recognition of customary law.

[1] See Law Reform Commission of Western Australia, Aboriginal Customary Laws – Discussion Paper, 2005; Northern Territory Law Reform Commission, Towards Mutual Benefit, Report on Inquiry into Aboriginal Customary Law 2003.

[2]For example the impact of extensive control policies: Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Qd); Aboriginal Protections Act 1909 (NSW); the Northern Territory Aboriginals Act 1910 (SA); the Aboriginals Ordinance 1911 (NT); the Aboriginals Ordinance 1918 (NT); the Welfare Ordinance 1953 (NT); the Aboriginal and Torres Strait Islanders Affairs Act 1965 (Qd); the Aborigines Act 1911 (SA); the Aborigines Act 1934 (SA); the Aboriginal Affairs Act 1962 (SA); the Aborigines Protection Act 1886 (WA); the Aborigines Act 1905 (WA); the Native Welfare Act 1963 (WA).
[3] Northern Territory Supreme Court 8 October 2002, http://www.nt.gov.au/ntsc/doc/sentencing_remarks/archives/Pascoe_08102002.html.
[4] [2003] NTCA 9.
[5] Quoted in David Fickling, ‘Bridging whitefella law and Aboriginal clan justice, at http://www.eniar.org/news/fickling3.html
[6] The Law Report - see http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s706299.htm
[7] ECOSOC resolution 1982/34.
[8] Commission on Human Rights resolution 2001/57.
[9] ECOSOC resolution 2000/22.
[10] Including the Universal Declaration on Human Rights; International Covenant on Civil and Political Rights; International Covenant on Economic Social and Cultural Rights; International Convention on the Rights of the Child; International Convention on the Elimination of All Forms of Discrimination against Women; International Convention on the Elimination of All Forms of Racial Discrimination; International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; UN Draft Declaration on the Rights Indigenous Peoples; and ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (No.169).
[11] ICCPR, Article 27: 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 practise their own religion, or to use their own language.
[12] Human Rights Committee General Comment 23 para 7 in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies UN Doc HRI/GEN/1/Rev5 2001:
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. ... 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.
[13]Human Rights Committee, General Comment 23 - Article 27, para 9.
[14] General Recommendation XXIII on the Rights of Indigenous Peoples para 4(e), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies UN Doc HRI/GEN/1/Rev5 2001.
[15] Convention on the Elimination of All Forms of Discrimination Against Women Article 5(a).
[16] United National Development Fund for Women (UNIFEM) "Women, Culture and Traditional Practices" CEDAW Advocacy Kit gopher://gopher.undp.org:70/00/unifem/poli-eco/poli/whr/cedaw/cedawkit/wctp.
18. United National Development Fund for Women (UNIFEM) "Women, Culture and Traditional Practices" CEDAW Advocacy Kit gopher://gopher.undp.org:70/00/unifem/poli-eco/poli/whr/cedaw/cedawkit/wctp.
[17] Human Rights Committee General Comment 28 para 5 in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies UN Doc HRI/GEN/1/Rev5 2001.
[18] Human Rights Committee General Comment 28 para 32 in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies UN Doc HRI/GEN/1/Rev5 2001.
[19] http://www.hreoc.gov.au/sex_discrimination/customary_law/submission.html#14
[20] S C Res 1994/45 Draft United Nations Declaration on the Rights of Indigenous Peoples
[21] ECOSOC Res 1995/32
[22]For survey of its developments see: Sarah Pritchard, ‘Working Group on Indigenous Populations: mandate, standard-setting activities and future perspectives’ in Sarah Pritchard (ed) Indigenous Peoples, the United Nations and Human Rights (1998) 40
[23] John Bulun Bulun v R & T Textiles Pty Ltd (1998) 41 IPR 513.
[24] Ibid.
[25] Ibid.
[26] [1975] ICJR, at 39.
[27] See also Coe v Commonwealth (No 2) (1993) 118 ALR 193; Walker v New South Wales (1994)182 CLR 45
[28] For example Articles 8 and 9(1) of ILO Convention 169, as above.