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Customary Law and Treaty

Notes for an Address, 2:00 pm, Wednesday, 26 June 2002
to the Conference

Treaty - Advancing Reconciliation

Murdoch University, 26 – 28 June 2002

Ralph Simmonds
Chairman, Law Reform Commission of Western Australia
Dean and Foundation Professor of Law, Murdoch University

 I am pleased to be here today as the Chairman of the Law Reform Commission of Western Australia.  In these brief remarks I want first to tell you about us.  This is so that I can better explain the significance to all of you the nature of the task with which we have been entrusted, to study Aboriginal customary law.  I want to conclude by relating what we have been asked to do to the Conference theme, treaty.

The Law Reform Commission of Western Australia is an independent agency charged with providing advice to the Attorney General.  This advice takes the form of Final Reports, which the Attorney General would normally table in the legislature and thus make public.  We do this on matters referred to us by the Attorney.  We are to provide the Attorney with advice in our Final Reports by way of critical examination of the area or areas of law touching the matter or matters referred to us.  In the course of providing such advice we may make any recommendations for reform of the law that we consider desirable.

The Commission has been doing all of this for 30 years now, and has produced over 92 major reports.  Most recently, at the Attorney’s request, we produced a review our own 30 year history, our 30^th Anniversary Reform Implementation Report (2002), to indicate what had become of our recommendations and what the government should do with any that remained unimplemented.  This Report was well received, and the Attorney has indicated that he will use it as the basis for changes to the law by legislation and otherwise over the coming year.

I mention this history, because the Commission has played and continues to play an important role in public discussion of the law and in law reform in this state.  It was thus a significant moment in our state’s legal history when, in December 2000, the previous government’s Attorney General gave us what is currently our major reference, on “Aboriginal customary law”.  I put the term in quotation marks, because that is how we received it.  It is a reference that was adopted subsequently by the current Attorney General when he assumed office.

The terms of reference that we received and that have been confirmed as I have indicated make it plain that what we are to examine is very broad indeed.  We are to consider three principal matters:

1. how Aboriginal customary law is made, altered, recognised and applied;
2. who is bound by such law, and how they cease to be bound; and
3. whether such law should be recognised, and, if so, how it should be recognised, to what extent, and on what basis.

In relation to the third matter, we are particularly asked to consider if certain law reform would be desirable.  We are asked to consider whether the rest of the legal system of the state should in its administration or enforcement give express recognition to Aboriginal customary law.  This includes the administration and enforcement of state criminal and civil law.  And we are also asked whether or not other provisions should be made for the identification and enforcement of Aboriginal customary law.

In relation to all three matters, we have been asked to consider the full range of matters of Aboriginal customary law that might fall within state legislative jurisdiction, although two matters have been specifically left out.  They are matters of native title and those arising under the Aboriginal Heritage Act 1972 (WA).  This leaves a huge range, covering matters that the rest of the legal system would call matters of criminal law and of civil law.  We are also asked to consider Commonwealth legislation and our country’s international obligations, the last a particularly important matter.  We are further directed to consider two important matters (here I quote from our Terms of Reference):

§         relevant Aboriginal culture, spiritual, sacred and gender concerns and sensitivities; [and]

§         the views, aspirations and welfare of Aboriginal persons in Western Australia.

I set out at the end of these notes the complete text of the Terms of Reference we have been given.

In undertaking this task, we will be drawing on the extraordinary work done by a similar body to ours, at the federal level, the Australian Law Reform Commission.  That ground-breaking work, The Recognition of Aboriginal Customary Law (1986), will be revisited in light of the many changes that have occurred since then, at the local, national and international levels.  We also need to take account of the fact that most of the federal Commission’s recommendations remain unimplemented after more than 15 years.

What have we been doing since the end of 2000 in working on our project?  Here I want to relate our project to the Conference theme.

It has been evident to us from the outset that we will be unable to produce a report that has the best chance of producing practical and valuable results of the sort the indigenous community would wish without a form of partnership with them.  Such a partnership would promote their input into the project, and assist us in preparing a Final Report that would properly reflect their experience and views.  We would continue to have responsibility for the production of the final report, in a form that, like the form of the other reports the Commission has done, would have the best chance of making a difference to our state.

We have been working on arrangements to make this sort of partnership possible.  These arrangements are now almost complete, and are described in outline an article in the magazine of the Australian Law Reform Commission, Reform, Issue 80 (2002), beginning at page 11.  That article, “Aboriginal customary law in Western Australia”, is written by three members of the Crime Research Centre at the University of Western Australia, Neil Morgan, Harry Blagg and Cheri Yavu-Kama-Harathuniam.

As the article reports, the Commission has, with the advice of representatives of the indigenous community, appointed Ms Yavu-Kama-Harathuniam, a woman of the Cubbi Cubbi clan (North Queensland), as the full-time Project Manager.  Dr Morgan and Dr Blagg will be involved as Research Directors.  We have also had two Special Commissioners for the project appointed, in Mick Dodson and Beth Wood.  In addition we have had appointed a twelve person Aboriginal Research Reference Council, with its membership drawn from across the Aboriginal community in this state, including, as the article explains, “men and women elders, community representatives and relevant representatives of key indigenous agencies and peak bodies” (page 12).  The Special Commissioners and the Council will work throughout the project with the Project Manager and the Commission on the development and implementation of the strategy for undertaking the research and consultation in the Aboriginal community that the project requires.

As the article explains, that research and consultation will require the development of protocols and procedures to respect the sensitivities and concerns, while encouraging the participation of, the Aboriginal community.

Out of this research and consultation, again as the article explains, we expect there to be a series of papers and other material produced on a range of topics within the terms of reference.  This is to permit further consultation to take place out of which the Final Report of the Commission can be prepared.

It is too early yet to know what recommendations the Final Report of the Commission is likely to contain.  But I can at least refer to two ideas for change that our project is likely to address and that the article also refers to.  These are what are called in the article “community justice mechanisms that assist in actively keeping the peace in indigenous communities” and forms of “restorative justice” (page 14).  More generally, in this Project, as the Terms of Reference appear to indicate, there is likely throughout to be a particular concern with discussions of the processes of customary law, the processes in the rest of the legal system and the possible forms of accommodation between them, rather than an account in exhaustive detail of particular areas of customary law.

In other words, what the WA Law Reform Commission’s project on Aboriginal customary law is about is ways our legal system might better accommodate Aboriginal customary law.  Such ways of accommodation I see to fall within the much broader forms of social accommodation and mutual exchange that this Conference will permit all of us to discuss and advance in the many conversations participants will have.

I look forward to the conversations that this Conference will feature over its three days and that it will help to stimulate into the future.

Thank you.