Why Australia won't recognise Indigenous customary law

While the Australian Law Reform Commissions’s 1986 report on the use of customary law for Aboriginal people was a great initiative, it was, in hindsight, a notion well before its time. Although 30 years have elapsed since the report was published, its recommendations have, by and large, been ignored.

Few in Australia understand the context and true meaning of customary law. Denials of its validity are often based on ignorance or on specific examples devoid of context; the severity of “spearing” for example, as being contrary to human rights norms.

This is akin to rejecting the common law based solely on, say, the use of lethal injections to execute prisoners in the United States.

Terra what?

Most people against recognising Aboriginal customary law think there’s only one law in Australia. This is clearly wrong both conceptually and in practice. As Australia is a federation made up of multiple jurisdictions, it necessarily has a multiplicity of laws.

What they are really saying is that Australia should exclude Aboriginal and Torres Strait Islander customary law (and arguably all non-Anglocentric laws). Consciously or otherwise, their rejection is based on first contact between settler and Indigenous Australians.

International law of the 1700s required that, for settlement, a tract of land be “substantially uninhibited”. Herein lies the genesis of Indigenous invisibility in Australia.

In practice, “substantially uninhabited” meant it was inhabited by a people who would not cultivate the proverbial yard of land, and who were not governed by laws. This notion of terra nullius is clearly a legal fiction, devoid of both truth and ethics.

The ultimate source of the prevailing prejudice and ignorance in Australia, terra nullius is utterly unconnected to the reality of the presence on this continent of the longest continually living human cultures. But the notion is firmly ensconced and entrenched in the Australian Constitution nonetheless.

Aboriginal and Torres Strait Islander societies could not have survived if they were lawless. In fact, the word law is so prevalent in Indigenous parlance and imagination that one must plug one’s ears to not notice Aboriginal and Torres Strait Islander love for law.

The early settlers’ lust for land provided an effective such plug, one which stilled their consciences and humanity as they attempted to destroy a civilised, law-abiding people. Despite these efforts, customary law always was, and still is, observed on the Australian continent.

What, then, constitutes customary law? With several peoples, languages and cultures sharing the continent, there are clearly many different laws. For our purpose here, we can recognise that law is an abstract concept: that it is essentially about the regulation of people, their societies, and relations with their neighbours (broadly defined).

Specifics may vary, but there’s a large variety of laws nonetheless. Consider speed limits in the Australian Capital Territory and New South Wales, for instance. The notion of regulating speed through law is common to both jurisdictions, even if maximum speeds are different.

Then, Mabo

Despite the fact that it’s an obvious untruth, the notion terra nullius is entrenched in the Constitution and, until 1992, was firmly a part of Anglo-Australian law. But among the custodians of the common law are judges who set about doing what they could to recognise Indigenous custom, rights and interests.

In 1971, Chief Justice Blackburn of the Northern Territory Supreme Court recognised that the Gove Peninsula in the northeastern corner of Arnhem Land was occupied by a people truly given to the rule of law, a civilised law that was not the common law.

But the NT Court was bound by Privy Council precedent in the NSW case Cooper v Stuart. That case had established the notion of terra nullius in law and covering the whole continent. The NT Supreme Court decision was frustrated.

Still, the Supreme Court’s recognition arguably allowed federal Attorney-General Bob Ellicott to examine the possibility of a broader recognition of Indigenous customary law, prompting the ALRC report. But the consequences of terra nullius appear to have prevailed and the report was, for the most part, shelved.

Legislative changes in the 1980s allowed the High Court in 1992 to recognise Indigenous Australians as the first people of the continent in the landmark Mabo case. Parliament followed suit by establishing a legislative framework for native title claims.

Since 1992, common law has admitted the existence of Indigenous customary laws, which inhered in another normative system. But, to date, the use of Indigenous custom in matters such as sentencing, including through in circle courts, remains sparse, patchy and inadequate.

Formal recognition of Aboriginal and Torres Strait Islander people in the Constitution will pave way for negotiations and a sustained dialogue between the civilisations, including for significant levels of self-determination.

Self-determined communities, within some contemporary constraints, can determine the laws they will use. When these discussions result in the use by Aboriginal and Torres Strait Islander people of their customary law, we can proudly say that we are truly reconciled.

This article is part of a special package marking the 30th anniversary of the Australian Law Reform Commission’s report on Aboriginal customary law.