Arguments against the Recognition of Aboriginal Customary Laws

113. An Overview. Most of the submissions and other material presented to the Commission support the recognition of Aboriginal customary laws. But some serious objections to recognition have been raised. Some of these involve objections to any form of recognition; others relate only to some forms of recognition.[45] Arguments based on notions of discrimination, equality and legal pluralism and on human rights receive detailed analysis in the two following Chapters.[46]

114. Unacceptable Rules and Punishments. An argument often used against recognition is that some aspects, at least of Aboriginal customary laws involve unacceptable or inhumane treatment or punishment of individuals, which cannot be tolerated, let alone recognized, Basic human rights must be guaranteed to all Aborigines, as to all other members of the Australian community: indeed, this is expressly stipulated in the Commission’s Terms of Reference. But the application of this principle to cases where Aboriginal customary laws are relevant, is by no means simple. Many traditional Aborigines share the view of the Yirrkala Community that:

punishments ... such as prolonged imprisonment especially among alien strangers and away from their own country [are] markedly more ‘inhumane and inconscionable’ than a spear through the thigh — usually voluntarily accepted as part of a consensus settlement.[47]

But human rights arguments are not a general objection to the recognition of Aboriginal customary laws. Everything depends on the way in which, and the extent to which, recognition is accorded.[48]

115. Secret Aspects of Aboriginal Customary Laws. Some aspects of Aboriginal customary laws, especially concerning certain sacred and ritual matters, are secret, and disclosure to unqualified persons is a serious offence. Even when the holders of particular secret information which is relevant in a case are prepared to reveal it for the purposes of the case, they may only be prepared to do so on conditions (eg as to confidentiality) which may be inconsistent with the judicial function. A court could not receive or act on evidence which the defendant had no opportunity to test. This problem is, of course, not new. In various ways, the existing law protects, or has been used to protect, secret or confidential ritual material or information entrusted to outsiders. Courts have sometimes used their general powers to protect such material.[49] The question of secret or confidential material has also arisen frequently before the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Commissioner is not bound by the law of evidence, but he is subject to the rules of natural justice, and land claims have in practice been conducted in a judicial way. They provide useful guidance in assessing the problem of secrecy. According to Graeme Neate:

For the most part the reception of evidence on a restricted basis has posed no practical problem. As counsel involved in land claim hearings have tended to be male and much of the restricted evidence has been given by Aboriginal men, interested parties have been represented at restricted sessions and where permitted by the Aboriginals, have been able to ask questions. Where women have given evidence, they have sometimes relaxed their usual rules and revealed certain information to those men to whom, for the purpose of making out the claim, it was deemed necessary.[50]

In one claim the Commissioner was asked to admit written descriptions of certain secret women’s ceremonies on condition that they be read only by the Commissioner and by female counsel and female anthropologists. In a written decision, the Commissioner admitted the evidence on this condition.[51] Perhaps the main concern underlying the argument about secrecy is that it would be wrong or dangerous for the general law to recognise Aboriginal customary laws when the consequences of recognition cannot be known. Experience suggests that this difficulty can be avoided either by the use of existing procedures, or by appropriately drafted alternatives. These questions will be discussed in more detail in Chapter 25.

116. Loss of Control over the Law. Many Aborigines fear that the incorporation of their law would result in their loss of control over it, similar to the lack of control or participation they now feel with respect to the general law. This fear would only be justified if it was sought to codify Aboriginal customary laws, or directly to enforce them through the machinery of the general law. But this by no means exhausts the ways in which Aboriginal customary law can be ‘recognised’.[52] As will be seen, the Commission does not believe that either codification of that law, or its direct enforcement by the general law, are appropriate forms of ‘recognition’.[53]

117. The Position of Aboriginal Women. Different opinions are held about the position and the power women exercise relative to men in traditional Aboriginal societies.[54] But there is no doubt that Aboriginal women have been particularly vulnerable to the effects of cultural change and societal disruption. They are victims of most of the domestic violence which occurs in some Aboriginal communities.[55] It has been suggested that the abandonment of Aboriginal traditions and laws may be in the long-term interests of Aboriginal women. This view assumes that the non-recognition of Aboriginal customary laws would lead to or hasten its abandonment. It also assumes that the status and living standards of Aboriginal women would thereby be improved. There is no evidence to support either assumption.[56] The Commission has been urged to take particular care to find out the views of Aboriginal women as well as men on issues arising in the Reference.[57] The material and opinions available to the Commission support the view that Aboriginal women agree on the need for the recognition of their customary laws in various areas, and for better communication with officials on issues which affect their lives. The need to ensure appropriate forms of protection and support to women (especially in the context of domestic violence) has been a major consideration in formulating measures for the recognition of Aboriginal customary laws.[58]

118. Divisiveness and the ‘One Law’. A view strongly stated in several submissions was that recognition would create an undesirable form of legal pluralism, and that it would be divisive or an affront to public opinion. Proponents of these views argue that there should be ‘one law for all,[59] and that the goal should be ‘social equality for Aborigines within the concept of racial unity and integration’. The question of ‘legal pluralism’ is considered in detail in Chapter 9. Although some forms of legal pluralism carry risks of duplication, or of drawing arbitrary distinctions between people, the Commission does not believe that, provided these risks can be avoided or minimised, ‘legal pluralism’ is necessarily undesirable. It may well be an appropriate response to a society containing plural cultures or traditions. Federalism itself is a form of legal pluralism, carrying some of the same risks of inefficiency and lack of uniformity, but it may well be an appropriate system for a geographically wide-spread and culturally diverse society.[60]

119. Synthetic Customary Law. Another view, expressed in particular by the late Professor TGH Strehlow, is that it is now too late to recognise Aboriginal customary laws because they have ceased to exist in meaningful form. We must take care not to create a synthetic law which is neither Aboriginal nor Australian. Such a development would be dangerous for the rule of law and of uncertain value to Aborigines generally. In Professor Strehlow’s words:

There is little real understanding today by either black or white people of traditional Aboriginal customary law ... Who today can speak with real authority on tribal law? Who can advise the courts of the validity of claims of breaches of tribal law? I have great reservations about the validity of claims in some recent murder hearings involving tribal Aboriginals that the killings had resulted from breaches of tribal law. I suspect that the quarrels that lead to at least some were more likely to have been domestic-based and, sadly, aggravated by alcohol a not too uncommon situation in society at large. If this is the case then we are creating in our community scope for a small sector to get away with murder or to avoid punishment normally required under European law on the ground that tribal elders would extract retribution. These ill-considered theories could therefore lead to a legal no-man’s land between white and black society in Australia. I do not believe that thinking white or Aboriginal people want this.[61]

Professor Strehlow amplified these ideas in a submission to the Commission:

As long as aboriginal beliefs were strong, and there were no prisons for offenders ... aboriginal law played a vital role in holding groups together and in keeping aboriginal Australia safe for its inhabitants ... Today there would be few people left in Australia, black or white, who have any detailed knowledge of what ‘aboriginal law’ really stood for. It was in no way a black mirror-image of our own body of laws: and the most common modern aboriginal offences that come before our own courts — violent assaults, thefts, offences due to drunkenness, and murders — were never punishable by those persons who are today called ‘tribal elders’ in the press ... Some of these offences did not even occur in the old ‘tribal’ days. I therefore believe that justice would be best met in our own days if the principle of one system of law for all Australians was firmly adhered to, with the proviso that the proved norms of ‘aboriginal law’ should be taken into account when determining the actual punishments. Where vital principles of justice were at stake, perhaps a plea of nolle prosequi could be entered by the Crown. But at all costs a legal no-man’s-land must be avoided.[62]

And again, more bluntly:

True ‘tribal law’ is probably dead everywhere. It could not change, for there were no aboriginal agencies that had the power to change any of the traditional ‘norms’.[63]

120. Opposing views. In part these comments were addressed at the prospect of the legal recognition of two separate legal systems, Aboriginal and non-Aboriginal. In that context they have weight. But if they are taken to support the view that Aboriginal customary laws no longer exist, or that no form of recognition of Aboriginal customary laws is possible, they are much less persuasive, as many submissions have pointed out. For example, Professor Geoffrey Blainey stated:

Strehlow argues that it is too late to recognise Aboriginal tribal law because we do not know enough about that law ... Strehlow adds that much which is now seen as traditional Aboriginal law may really be a perverted or twisted law that arose during the recent breakdown of their society. I am not sure how far one should accept that argument, valuable as it is. Most of those people — black or white — who say today that we should recognise Aboriginal law, or facets of it, are not necessarily affirming that Aboriginal law was — or is — a summit of legal and social wisdom. They are rather affirming that the Aboriginals have a vital place in the world, that their traditions and many of their values differ from those of European society, and that by reviving a version of Aboriginal law even in a limited way we give them respect, some sense of identity and independence, and a greater chance of self fulfillment. Thus it does not matter if the law they revive is not traditional law but rather a modem variation which Aboriginals are likely to accept and which Europeans are likely to respect.[64]

Similarly, Father MJ Wilson MSC wrote:

When Strehlow spoke about Aranda affairs, the duty of the rest of us was to listen. When however he offers interpretation and prognostication of trends of social change, his authority is not so absolute ... [H]is wide knowledge, and deep feeling for traditional Aranda values can in this instance function also as a handicap. Knowing the richness and complexity of the Aranda cultural patrimony he could easily pass from the moderate judgmental position of knowing that it cannot be translated through social change in its fullness to the extreme position of denying that it should take place at all. Thus ... I do not think the only reasonable option left at this stage of history is abandonment of the attempt to wed Aboriginal legal custom with the laws of the Commonwealth ... I would like to distinguish clearly between acceptance in principle of legal adaptation under its various respects and the actual ways of going about it. For instance, it might be hard to find ways of coping with the secrecy characteristic; no way might be really perfect, and an acceptable way might be hard to find and require various experiments. But that is different from saying that secrecy is ‘unacceptable’ in principle. We are dealing with a social value that is not static. Certainly it cannot be transported holus bolus into the western legal system: it will need to be adapted. But that is precisely what many Aboriginal people themselves are trying to do in their pursuit of the process of co-ordinated independence ... Adaptation of their legal procedures is a more difficult and complicated but, under the aspect of an item in the ongoing process of desired social change, not essentially different endeavour. I see the various Aboriginal values as open-ended: their essential dynamic can be maintained under a diversity of social expressions.[65]

According to Professor Maddock:

Strehlow appears to have assumed that customary law means the law of communities unaffected by outside ideas, concepts and values. As there are no such communities left, there can be no such law. He was judging present-day Aborigines by the standards of their forbears. This argument against recognition loses its force if we see present-day rules and customs as having grown out of the pre-European past but as having been formed and malformed also through the shock of foreign contact and the process of adaptation that followed. Sometimes the outcome may have been a degenerate travesty of an older and purer standard, but there is no reason to view every change with so little sympathy.[66]

121. The Commission’s View. Changes or adaptations in traditional rules or customs, in an attempt to cope with the great changes European settlement has brought about, no doubt produce something which could be described as ‘synthetic’. All legal and cultural systems with a long history are synthetic in this sense.[67] The fact that legal systems are synthetic does not mean that they are less real or important to those whom they affect. In the present context, it does not mean that efforts should not be made to recognise those aspects of Aboriginal traditions and laws which can helpfully and effectively be recognised. Indeed, Strehlow himself saw the need for some such measures, at least in areas such as prosecution policy and sentencing. His comments on the mistakes made over Aboriginal customary laws in particular cases support the introduction of better methods of consultation and of proof. The Commission believes that Strehlow’s views represent a counsel of despair. Accepting that Aboriginal traditions and laws have been subject to outside interference and to pressures of various kinds does not entail that those traditions and laws have vanished, or have ceased to be valid or recognisable. On the contrary they have in many areas survived and adapted. These changes, and the continuing interaction of Aboriginal societies with the general Australian community, must influence the ways in which recognition can occur. They do not preclude it.

122. The Decline of Customary Law. A related, though less categorical, argument does not deny the continuing existence, among some Aboriginal groups, of what can properly be termed ‘Aboriginal customary laws’. However, their scope, compared with the range of new problems arising for those groups, is said to be slight and diminishing. It is argued that the increasing impact of the general Australian culture and language is such that in a relatively few years, Aboriginal customary laws in any real sense will have ceased to exist, or to have any relevance:

Aboriginal culture has become, and continues to become, more westernised. Hence customary law is becoming decreasingly relevant in its application.[68]

The inference is that it would be wrong to give formal recognition to a disappearing phenomenon. The possibility that customary laws are declining or diminishing clearly requires the Commission to exercise great care in framing its proposals, so as not to ‘freeze’ or entrench traditions or rules which Aborigines may wish to change or abandon. But, these requirements having been satisfied, it is difficult to see why necessary measures of recognition should not now be implemented, even if it turns out at so me later time that they are no longer necessary. There are, undoubtedly, factors which are tending to undermine Aboriginal customary laws and traditions, such as the availability of alcohol[69] and the influence of the mass media. But there are also countervailing factors, such as the outstation movement,[70] the revival of Aboriginal ceremonies and tradition,[71] and the conferral of land rights, in certain areas of Australia, on the basis of traditional relationships or claims.[72] Few of these factors could have been foreseen a generation ago. Neither the Commission nor the Parliament should concern itself with essentially transient phenomena. But the evidence does not support the view that Aboriginal customary laws and traditions are transient in this sense. What the position will be in 25 years time it is unnecessary (even if it were possible) to predict. There are good arguments for action to be taken now’ to recognise aspects of Aboriginal customary laws and traditions which do now exist, and which are likely to continue to exist in much the same form for the foreseeable future. This recognition should:

  • be as flexible as possible, to allow for change and development on the part of Aboriginal communities:

  • be recognised as tentative, in the sense that it will need careful oversight, and review at an appropriate time [73]

123. Difficulties resulting from Changes and Disruptions in Aboriginal Communities. A related objection, at least to any general recognition of Aboriginal customary laws, is the difficulty of such recognition ‘after irrevocable damage has been done’ to traditional Aboriginal society:[74]

I frankly do not know how you can implement customary law in a community which is undergoing very rapid change and, in some respects, disintegration. Customary law assumes a stable society in which change is gradual.[75]

It is true that Aboriginal people in certain places do exercise customary law and want to continue to do so and want to re-establish customary law. Let me say that I am in favour of this, law and Law. However, to re-establish small ‘1’ law where the lawholders, the elders, have lost jurisdiction over their children, their nephews, nieces and grandchildren, is a nonsense. It is starting at the end, not the beginning.[76]

This is more an argument against certain forms of recognition than against any form of recognition at all. Many of those who drew the Commission’s attention to the problems nonetheless urged that at least some form of recognition be tried, even if only in specific ways or on an experimental basis. Most of the submissions and evidence before the Commission support the view that some steps can and should be taken to make the general legal system more responsive to the needs of those Aborigines for whom Aboriginal customary laws remain important. It is also possible that recognition may help to halt the process of disruption. The difficulties which result from the impact of western technology, from alcohol, from the law itself, must influence the form and content of any recommendations. They call for caution and restraint, and an appreciation that even apparently sensible proposals may prove counter-productive in their effects. But they do no more than that.

124. The Geographical Restriction of Customary Laws. Some submissions took the view that recognition of Aboriginal customary laws was justified only in relation to separate Aboriginal communities living in a strict traditional way. According to this view, there are no recognisable forms of Aboriginal customary laws, or at any rate none that ought to be recognised, among Aborigines living in the urban or town-camp setting. Proponents of this argument draw support from some observations of Justice Wells in Wanganeen v Smith:

The tribal Aboriginal native may have to be dealt with in a very special way if he is brought before one of the ordinary courts of the land for an offence allegedly committed by him against the criminal law; but where an Aboriginal native has established himself in the more general community and intends to remain there and work side by side with other members of that community, he must accept the ordinary standards of behaviour expected of his fellow citizens ... If he inhabits and uses the cities and tow ns of our country, then he must expect to abide by the ordinary rules by which law and order are there maintained. He cannot expect that special exceptions will be made for him. No doubt his personal characteristics and background and history will be taken into account by a court in the ordinary way; but he cannot expect special treatment just because he is an Aboriginal native, ... In such a case, he comes as a citizen of Australia and must be treated just like any other citizen who lives in a town or in a city, and who makes use of the various facilities provided there.[77]

Thus, it has been suggested that any proposal for the recognition of Aboriginal customary law must be geographically restricted in its application to tribal Aborigines living in their own separate communities.[78] Certainly it would be undesirable, if not entirely unworkable, to have two separate and distinct systems (especially of criminal law) regulating conduct in the same locality — whether that locality was a country town, a large city or a remote Aboriginal community.[79] But none of the Commission’s proposals involve recognising or establishing such separate systems, Nowhere in Australia do Aboriginal customary laws remain as an exclusive legal system. Aborigines, including traditionally oriented Aborigines, look to the general law, to guarantee equal wages, entitlement to social security benefits, compensation for accident or injury, the protection of sites of significance, or to redress acts of discrimination. This is not to say that in all these respects the general law is successful in affording such protection. But criticisms which are made of it are directed not at its removal but at its improvement. The question of recognition of Aboriginal customary laws arises in the context of the continued application of the general law. Except where that law is modified or varied to bring about a recognition of Aboriginal customary laws, the problem of competing or concurrent standards in the one locality does not arise. Where the general law is so modified, then it will itself define the extent to which local customary laws are to be recognised, and the consequences of such recognition.

125. Concurrent Customary Laws. There are good reasons why the coexistence of Aboriginal customary laws should be recognised, without imposing restrictive geographical limits. Traditional Aborigines do not consider themselves entirely exempt from Aboriginal customary laws while absent from their communities (although their operation may be different when they are on their own land compared with when they are on someone else’s land or country). The recognition of Aboriginal customary laws risks being ineffective if it is geographically limited to particular communities (even assuming that they could be appropriately identified). In addition, the fact that some Aboriginal customary laws have ceased to be practised in a particular area does not mean that other aspects may not still be relevant. This point was made in a number of submissions. For example, the Victorian Minister responsible for Aboriginal Affairs wrote:

The point ... is that all Aborigines are descended from a traditional situation. Whilst I agree ... that most Aborigines no longer live a tribal lifestyle, many may still be influenced by customs or beliefs from the past. This may not be apparent, because they appear to be living an average urban lifestyle ... The point is that the urban Aborigine is still making social adjustments and this must affect his comprehension and dealings with the legal system.[80]

A similar comment was made by the Victorian Aboriginal Legal Service:

The Aboriginal population of Victoria both rural and metropolitan could be said to be ‘urbanised’. There are no Victorian Aborigines living in (what is commonly known as) a tribal situation and accordingly the Victorian Aboriginal Legal Service makes no submission as to legislation incorporating customary laws into the European legal structure (VALS would have some reservations about the adoption of this procedure even in tribal areas). Although no complete system of customary law is still operative in Victoria, it is stressed that many traditional values and obligations still exist in the Victorian Aboriginal community. Perhaps the most important traditional values that survive in Victoria are those that relate to family organisations and structure and kinship obligations ... Victorian Aborigines continue to suffer from a legal system that fails to recognise a different system of family structure and obligations.[81]

As this comment implies, the recognition of Aboriginal customary laws can take a variety of forms, and the application of particular proposals will vary depending upon the proposal. General geographical limitations are both impractical and likely to be irrelevant. This applies equally to proposals for specific recognition and for adjustment of the general law to take Aboriginal customary laws or practices into account. In each case the appropriate range or ambit of the proposal is a matter for judgement on the merits. Aborigines, whatever their background, will not be able to gain the benefit (or more neutrally, attract the application) of particular proposals simply by asserting the impact of Aboriginal customary laws or traditions. That will be a matter for proof in each case, with the assistance of any improved procedures which may be necessary.[82] It is this requirement, not the delineation of certain areas as ‘tribal’ or ‘traditional’, that should ensure that the Commission’s proposals are applied only in appropriate cases.

126. Problems of Definition. It can be argued that, even if a particular measure of recognition of Aboriginal customary laws is desirable in principle, the problems of formulating an acceptable provision in statutory form are too great to be overcome. For example, it has been said that, while in principle Aboriginal traditional marriage should be recognised, in practice it is impossible to define.[83] In fact, this kind of objection has not been very frequent in submissions to the Commission. For example, there has been general support for recognition of traditional marriage, whatever the technical difficulties of drafting. Many submissions drew the Commission’s attention to the large number of overseas countries where customary marriage or other aspects of customary law are recognised , and where the definitional problems, although genuine, have not caused major difficulties in practice. One reason for definitional objections may be that lawyers often attempt to draft statutes in great detail and precision, with consequent complexity and rigidity. Whatever the merits of this practice in the context, say, of taxation Acts, in the present context it is a mistake to attempt a degree of precision greater than the subject will allow.[84] On the other hand, extensive practice in many jurisdictions supports the view that, with care and attention, sufficient precision can be achieved.

[45]For comment on these arguments see Rees, J Crawford (1983) 9 ALB 12.

[46]See para 128-93.

[47]HC Coombs, Submission 262 (29 April 1981) 2.

[48]See generally ch 10, esp para 192-3, and see para 502-3, 512-3.

[49]See further para 649-61.

[50]See G Neate, ‘Keeping secrets secret’ (1982) 5 ALB 1, 17.

[51]Report of the Aboriginal Land Commissioner, Daly River (Malak Malak) Land Claim AGPS, Canberra, 1982, 86-9. cf Neate, 17-18. For the former Land Commissioner’s own assessment see (1982) 3 ALB 5-6.

[52]See para 200-7.

[53]See para 208, 241-57, 442-50, 460-5, 622-4, 687-91, 804-8.

[54]See references cited in para 37.

[55]See para 394-400, 482-483.

[56]cf P Wilson, Black Death White Hands, George Allen and Unwin, Sydney, 1982, 16, 18, 45.

[57]See para 18; and for comment to the Commission, see Bell and Ditton; Women’s Electoral Lobby (A Rebegetz), Submission 127 (22 July 1979); NSW Women’s Advisory Council, Submission 303 (16 June 1981); Office of Women’s Affairs (K Taperell), Submission 293 (29 May 1981); National Society of Labor Lawyers (D Merryfull), Submission 322 (5 April 1982).

[58]See para 251-3, 447-9.

[59]Hon RC Katter, Queensland Minister for Northern Development and Aboriginal and Islander Affairs, Submission 436 (25 July 1984). For similar arguments see NT Police (Commissioner WJ MacLaren), Submission 34 (15 July 1977); NSW Law Society (D McLachlan), Submission 358 (16 November 1982); H Morgan, ‘The noble savage is no more’ Sydney Morning Herald, 19 March 1985, 11.

[60]See para 169.

[61]The Advertiser (Adelaide), 19 February 1977.

[62]WH Hilliard, Submission 138 (13 August 1979) enclosing Strehlow Research Foundation, Pamphlet No 5, ‘Aboriginal Customary Law’, August 1978, 3-4. See also TGH Strehlow, Submission 79 (3 June 1978).

[63]TGH Strehlow, Submission 33 (14 July 1977) 1-2. For a fuller account of Strehlow’s views see Justice MD Kirby, ‘TGH Strehlow and Aboriginal Customary Law’ (1980) 7 Adel L Rev 172.

[64]G Blainey, Submission 115 (8 January 1979) 1.

[65]MJ Wilson MSC, Submission 287 (20 May 1981) 3-4.

[66]K Maddock, The Australian Aborigines, 2nd edn, Penguin, Ringwood, 1982, 175-6. See also K Maddock, ‘Aboriginal Customary Law’ in P Hanks & B Keon-Cohen, Aborigines and the Law, George Allen & Unwin, Sydney, 1984, 212, 232-7; M de Graaf, Submission 307 (14 July 1981); Sgt F Warner, Transcript, Adelaide (17 March 81) 66.

[67]As Professor A E-S Tay has pointed out: ‘Law and Legal Culture’ (1983) 27 Bull ASLP 15, 16.

[68]G Tambling MHR, Submission 355 (11 October 1982) 8.

[69]House of Representatives, Standing Committee on Aboriginal Affairs, Alcohol Problems of Aboriginals, AGPS, Canberra, 1978; L Sackett, ‘Liquor and the Law: Wiluna, Western Australia’, in RM Berndt (ed) Aborigines and Change. Australia in the ‘70s, AIAS, Canberra, 1977, 90. See further para 397, 436-40, 482.

[70]See para 34.

[71]See para 34, 38.

[72]See para 77, 212.

[73]See further para 208-9, 217-20.

[74]MJ Wilson MSC, Submission 111 (14 March 1981) 1.

[75]Justice H Wootten, Submission 9 (15 March 1977) 1.

[76]P Roberts, Submission 208 (5 March 1981) 3.

[77]Unreported, Supreme Court of South Australia, 28 January 1977; [1977] Australian Current Law DT 54.

[78]eg Australian Mining Industry Council (GP Phillips), Submission 15 (17 May 1977); Attorney-General’s Department, Victoria (G Golden), Submission 177 (11 May 1981).

[79]A corollary might be that in separate Aboriginal communities where Aboriginal customary law is to be recognised, it should apply to all residents, although its proponents do not seem to support this.

[80]Hon J Kennett MLA, Minister responsible for Aboriginal Affairs in Victoria, Submission 224 (19 March 1981) 1.

[81]Victorian Aboriginal Legal Service, Submission 283 (20 May 1981) 1. On the other hand, some submissions emphasised the non-existence of Aboriginal customary laws in any form in wide areas of Australia. Tasmanian Police (Mr KH Viney), Submission 164 (16 July 1980); NSW Police (Asst Cmr Abbott), Submission 234 (2 April 1981).

[82]See ch 24-6.

[83]See para 265-9 for discussion of the problems of definition of traditional marriage.

[84]See para 95, 101, 208-9.