ABORIGINAL CUSTOMARY LAW

ATSIC calls for Implementation of ALRC Aboriginal Customary Law Report

The Aboriginal and Torres Strait Islander Commission (ATSIC), in their February 1995 Recognition, Rights & Reform' report, has recommended that the Federal Government act on the findings of the Australian Law Reform Commission's 1986 report, Recognition of Aboriginal Customary Law' (ALRC 31). Michael Easton reports.

The Australian Law Reform Commission (ALRC) report covered areas such as marriage, custody, family property, criminal law, sentencing, problems of evidence and the recognition of hunting, fishing and gathering rights. It stated that non-recognition can produce injustices and can undermine traditional authority structures. Detailed recommendations were made with an eye to maintaining flexibility and dealing with conflict between customary law and the general legal system on an issue by issue basis.

The recent ATSIC report criticises the Government for implementing the ALRC recommendations in an uncoordinated, slow and piecemeal' fashion; refusing to take proactive legislative action; and, shifting the burden onto the courts to deal with the particular cases that come before them. Relying on the judiciary is said to lead to ad hoc and uneven outcomes', it takes a long time and ATSIC refers to the danger of relatively trivial issues being resolved while highly significant issues are not even addressed'.

The most significant development in recognition of customary law is, of course, the 1992 High Court decision in Mabo, which recognised native title to land. The only legislative reaction to Mabo - the Native Title Act 1994 - is criticised by ATSIC as adding nothing that is not now recognised at common law'.

The ATSIC recommendation (number 84 in their report) calls for the Government to ensure that effective processes are put in place for addressing the recommendations of the ALRC Report' and that these processes should be overseen by a committee comprising the Minister for Aboriginal and Torres Strait Islander Affairs, the Attorney-General and the Chairperson of ATSIC. The process should also involve extensive consultations with traditional law men and women. The ALRC welcomes ATSIC's recommendation and strongly supports any steps towards implementing the recommendations in the 1986 report.

Copies of ALRC 31 report can be obtained from the ALRC.