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Hands, Tatum --- "Teaching a New Dog Old Tricks: Recognition of Aboriginal Customary Law in Western Australia" [2006] IndigLawB 12; (2006) 6(17) Indigenous Law Bulletin 12


Teaching a New Dog Old Tricks: Recognition of Aboriginal Customary Law in Western Australia

by Dr Tatum L Hands

The Law Reform Commission of Western Australia (‘the Commission’) has released its discussion paper, Aboriginal Customary Laws.[1] The result of five years’ research and consultation, the paper is a timely reminder of the issues that prompted the Australian Law Reform Commission’s reference on the same subject 20 years ago. Among these catalysts were the need for reassessment of relations between Aboriginal and non-Aboriginal Australians, the disproportionate representation of Aboriginal people in the criminal justice system, and the interaction of customary law with the broader legal system. Despite numerous reports and initiatives over the past two decades, these issues remain largely unaddressed. The Commission’s discussion paper seeks to bring these issues to the forefront of the agenda for law reform in Western Australia (‘WA’), to provide a template for meaningful recognition of Aboriginal customary law and culture, and to address entrenched Indigenous disadvantage in the State.

The Commission’s terms of reference

The Commission’s customary laws project operated under broad terms of reference, excluding only native title issues and Aboriginal Heritage Act 1972 (WA) matters. An initial focus on the existence and practice of Aboriginal customary laws was broadened after public consultations[2] revealed a number of seemingly tangential issues generally affecting Aboriginal communities including youth issues, health, substance abuse, living conditions, educational and employment opportunities, racism and reconciliation, and Aboriginality and identity. Although these issues have demonstrable links to Aboriginal customs, the connection to Aboriginal law is often far less apparent. However, Aboriginal people consulted emphasised that Aboriginal law

was part of everything, was within everyone and governed all aspects of their lives. In other words, customary law cannot be readily divorced from Aboriginal society, culture and religion.[3]

As a result, the Commission’s discussion paper is not confined to recommending changes to legislation; it is a comprehensive, multi-faceted study proposing changes to laws, policies, programs and processes in many policy areas.

Teaching a new dog old tricks

The Commission investigated various methods of recognition of customary law and culture including statutory, administrative, judicial and constitutional recognition. The approach adopted allows for flexibility and ensures that customary law is not codified and removed from Aboriginal control.

Aboriginal people consulted rejected any notion of two separate systems of law. The need for ‘striking a balance between Aboriginal and non-Aboriginal law’ to address disadvantage and facilitate reconciliation was emphasised.[4] The Commission’s proposals therefore reflect an approach to recognition that sees WA law (the ‘new dog’) informed by Aboriginal customary law and culture (the ‘old tricks’).

Underlying themes

Rather than discuss the Commission’s discrete proposals (as I have done elsewhere),[5] in this article I consider themes that resonated throughout the consultation, research and writing phases of this project, which informed the Commission’s proposals and which will underpin the implementation of the Commission’s recommendations.

Decline of Cultural Authority

The Commission heard from Aboriginal communities throughout the State that the cultural authority of Elders had considerably declined, possibly as a result of the imposition of ‘white’ governance structures on communities, the interruption of inter-generational transmission of cultural knowledge due to the past removal of Aboriginal children, and the forced coexistence of different tribes in missions. This was expected to impact adversely on the future of Aboriginal customary law and culture.

Many of the problems experienced by Aboriginal communities – community dysfunction, alcohol and substance abuse, feuding and youth issues – are symptomatic of a decline in cultural authority. The Commission has responded by proposing means of enhancing the cultural authority of Elders. The Commission’s proposed community justice groups will be empowered to create community rules and sanctions that can reflect customary law as well as deal with other issues such as alcohol and substance abuse. Community justice groups will also have the opportunity to perform roles within the WA criminal justice system, including advising courts on relevant customary law or cultural matters, diverting offenders and supervising bail or release orders.[6]

Community justice groups can also assist in building governance capacity and in defining structures that will respond to the cultural dynamics of each community. The Commission has set out some guiding principles for broader governance reform in Aboriginal communities but has stressed the importance of communities developing their own governance models without undue government interference.[7]

Inequality of Government Service Provision

Lack of basic infrastructure in many Aboriginal communities and overcrowding of public housing were matters that – although not the usual domain of law reform – gained prominence in this discussion paper. Local governments are resourced to provide services to constituents pursuant to a formula that recognises factors such as geographical remoteness, Aboriginal population and disadvantage. However, the Commission found that lack of accountability for expenditure of these funds, the inability of local councils to levy rates on certain Aboriginal-owned land and the difficulty of maintaining infrastructure in remote areas meant that some local governments were failing to provide services.[8] The Commission proposed that local governments be held accountable for funding received for the benefit of Aboriginal people.[9]

The Commission noted that recent Census statistics[10] fail to convey the reality of overcrowding in Indigenous households that was reported to and observed by the Commission during its consultations. In some areas as many as 20 people may be resident in a standard three-bedroom house.[11] This puts enormous pressure on ablution and kitchen facilities that are designed to service a maximum of perhaps six occupants. Inevitably houses deteriorate and occupants are evicted for damage, antisocial behaviour, inability to pay for repairs or for accommodating more people than the lease allows. Because Aboriginal people have important social and customary law obligations to accommodate kin, evictions simply transfer the problem of overcrowding to another location and the cycle begins again.[12]

These themes are well known throughout Australia and are the focus of national programs to overcome entrenched Indigenous disadvantage. Less well known are the compounding problems. Poor infrastructure (such as clean water supply, sewerage and waste disposal) poses serious health risks. In some Aboriginal communities diseases which were eradicated in mainstream Australia almost a century ago are still rife.[13] The risk of spreading infectious disease is magnified where adequate sanitation facilities do not exist or where ill people are not able to be isolated because of cramped living conditions.

Overcrowded housing can also create conditions which may contribute towards family violence and child sexual abuse. Women and children may be forced into refuges or to sleep outside in order to protect themselves from violent family members. The interruption to routine, lack of suitable role models and constant fear of violence are reflected in high truancy rates, low self-esteem and poor physical health in Aboriginal youth.[14] Aboriginal women consulted by the Commission feared that children who grow up in this environment may come to see family violence as normal, acceptable behaviour (and in some cases may believe that family violence is culturally sanctioned under customary law).[15] Without immediate redress, this cycle will continue and the physical, mental and social wellbeing of Aboriginal children as well as their opportunities for the future will inevitably be affected. The Commission has made a number of proposals to address issues raised by inadequate service provision and overcrowded housing in Aboriginal communities, as well as proposals aimed at diminishing the serious consequences that flow from these problems.

Bias and Disadvantage within the Western Australian Legal System

The failure of the legal system in WA to accommodate the differences between Aboriginal customary law and Australian law can result in disadvantage for Aboriginal people. The Commission’s research revealed that some form of cultural disadvantage was inherent in many of the substantive areas of law investigated. For example, the fact that much Aboriginal customary law is based on a notion of kinship that differs significantly to the Western model of lineal relations and the ‘nuclear family’ affects matters as diverse as inheritance; funeral attendance for prisoners; burial rights; rights in coronial process; and child placement and parenting matters. The Commission has made a number of proposals to ensure that the role of kinship in Aboriginal society is better understood in WA law and policy and that the special obligations imposed by Aboriginal kinship are, where possible, recognised and respected.[16]

Aboriginal kinship can also dictate the degree of responsibility or liability for an offence or accident and this can differ widely to notions of criminal and tortious responsibility under Australian law. The Commission found that Aboriginal customary law in these areas often dictates what lawyers know as ‘strict liability’. For example, whereas under Australian law responsibility for a fatal car accident would generally lie with the driver of the car, under customary law all occupants of the car would be held responsible and liable to punishment.[17] In addition, those people in a special kinship relationship with the occupants of the car might also be punished for failing to protect their kin.

This suggests that liability under Aboriginal customary law is based on a broader notion of moral responsibility which, in some cases, may lead some Aboriginal people to plead guilty where an arguable defence to a charge exists under Australian law.[18] A lack of understanding of the differences between the two systems of law may contribute to the problem. In response the Commission has proposed (among other things) that courts must not accept a plea of guilty unless, having considered language and cultural issues, the court is satisfied that an accused understands the nature of the plea and its consequences.[19]

One aspect of apparent bias that cannot be ignored is the considerable overrepresentation of Aboriginal people in the WA prison system. As the Commission’s discussion paper observes:

Although only constituting about three per cent of the state’s population, in 2004 Aboriginal people comprised 40 per cent of the prison population. For juveniles the position in Western Australia is indefensible: approximately 70 to 80 per cent of juveniles in detention are Aboriginal.[20]

These statistics are unable to be explained solely by rates of offending behaviour among Aboriginal people as compared to non-Aboriginal people in WA.[21] Indeed, on closer examination the only possible explanation for this significantly disproportionate rate of imprisonment of Aboriginal people is the existence of systemic bias or institutionalised racism within the criminal justice system and the prevalence of underlying factors such as socio-economic disadvantage among the State’s Aboriginal population. The Commission found that Aboriginal people were disadvantaged by systemic bias in relation to bail, parole (including lack of appropriate programs and services in prisons), court procedure, the rules of evidence and sentencing. Each of these areas has the capacity to contribute significantly to the disproportionate rate of imprisonment of Aboriginal adults and juveniles in WA. A number of the Commission’s proposals are therefore aimed at addressing apparent bias and disadvantage in WA’s criminal justice system.[22]

Conclusion

In the past two decades there have been some positive changes in the legal landscape of Indigenous affairs in Australia. Not least of these is the 1992 High Court decision in Mabo v Queensland (No 2)[23] which recognised a form of Indigenous native title to land. More recently the spotlight has been on problems of entrenched Indigenous disadvantage, with governments adopting a new partnership approach to improving the living conditions of Australia’s Indigenous peoples. These domestic changes have been accompanied by a dedicated focus on rights of Indigenous peoples at the international level as we enter the Second International Decade of the World’s Indigenous Peoples.

The Commission’s discussion paper therefore enters the public imagination at a time when Australian governments are perhaps more willing to address the fundamental issue of their relations with Indigenous peoples. However, the cumulative effect of government policies since colonisation has taken its toll on Aboriginal people and many have lost confidence that changes in policy will result in tangible outcomes. The Commission has heeded this message by proposing practical, workable solutions to problems caused by the conflict of Aboriginal customary laws and culture and WA law. The proposals empower Aboriginal people to effect meaningful change in their own lives under their own law, while ensuring that outcomes of interaction with WA law are equal to those enjoyed by non-Aboriginal Australians. It is hoped that the findings of the Commission’s inquiry and the strength and diverse coverage of its proposals will stimulate a robust exchange on the potential for recognition of Aboriginal customary law and culture not only in WA, but throughout the nation.

Dr Tatum Hands is the Principal Project Writer for the Law Reform Commission of Western Australia’s Aboriginal Customary Laws Project. The author wishes to thank Kevin Williams, Danielle Davies and Victoria Williams for their comments on an earlier draft of this article.


[1] Law Reform Commission of Western Australia (‘LRCWA’), Aboriginal Customary Laws, Project No 94, Discussion Paper (December 2005). Because only very few Torres Strait Islanders reside in Western Australia (‘WA’), the Commission has preferred the term ‘Aboriginal’ rather than ‘Aboriginal and Torres Strait Islander’.

[2] Aboriginal people, communities and organisations in all regions of WA, including remote areas, were consulted: ibid 12–13.

[3] Ibid 50. The Commission also determined that these issues fell within its mandate as matters relevant to ‘the views, aspirations and welfare of Aboriginal persons in Western Australia’: Ibid 20.

[4] Ibid 55.

[5] Tatum Hands, ‘Recognition of Aboriginal Customary Laws in Western Australia’ (2006) 33 (2) Brief: Journal of the Law Society of Western Australia 25–29. See also the Discussion Paper Overview available on the LRCWA’s website <www.lrc.justice.wa.gov.au>.

[6] LRCWA, above n 1, 133–141 and Proposal 18.

[7] Ibid 435-438. Although the Commission stresses that government should not seek to impose particular governing structures on Aboriginal communities, government departments should nonetheless provide support for Aboriginal communities seeking to design their own governance structures.

[8] Ibid 422-423. See also, Part II.

[9] Ibid 423, Proposal 91.

[10] The 2001 Census of Population and Housing reported an average of 3.6 persons (5.3 in remote areas) in Indigenous households as compared to 2.6 persons in non-Indigenous households.

[11] For example, in a case-study of Roebourne commissioned by LRCWA Kathryn Trees reported that it was not unusual for between 17 and 20 people to live in a single house. K Trees, Contemporary Issues Facing Customary Law and the General Legal System: Roebourne – a case study, LRCWA, Project No 94, Background Paper No 6 (November 2003) 10. Newspaper reports and the Commission’s own consultations confirmed this observation.

[12] LRCWA, above n 1, 38-42. A recent report by the Equal Opportunity Commission of Western Australia (‘EOCWA’) brings significant perspective to this problem and the problem of systemic discrimination in the public housing system in WA. See EOCWA, Finding a Place (December 2004).

[13] Rheumatic fever is one such disease. LRCWA, above n 1, 39.

[14] Ibid, Part II. Reports of the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’) and other bodies have made similar observations: RCIADIC, Report of the Royal Commission into Aboriginal Deaths in Custody, Vol 2 (1991).

[15] Ibid, 350 and 358.

[16] See, for example, proposals to recognise classificatory kin relations in relation to distribution of Aboriginal intestate estates (Proposal 52); provision for dependants (Proposal 55); cultural objections to autopsy (Proposal 58); prisoner attendance at funerals (Proposal 47); adoption (Proposal 67); and foster care and alternative child welfare placement (Proposal 68): Ibid.

[17] Ibid 270–271.

[18] See, for example, Ngatayi v The Queen [1980] HCA 18; (1980) 30 ALR 27.

[19] LRCWA, above n 1, 234, Proposal 35. See also 241-246 (dealing with police interrogations) and 401–406 (dealing with interpreters and evidence of Aboriginal customary law).

[20] Ibid 95.

[21] Ibid 97-98.

[22] Ibid. See, for example, Proposal 18 (establishment of community justice groups); Proposal 19 (Aboriginal courts); Proposals 23-28 (improvement of bail); Proposals 29-33 (customary law and cultural considerations in relation to sentencing); Proposal 36 (Aboriginal customary law in decision to prosecute); Proposal 43 (diversionary schemes for Aboriginal youth); Proposals 44-46, (police interview procedures and admissibility); Proposal 77 (evidence); and Proposals 78-90 (improvement in court procedure and use of interpreters).

[23] [1992] HCA 23; (1992) 175 CLR 1.


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