Discussion paper / law reform commission of western australia publication 271556aboriginal customary laws. Background papers / law reform commission of western australia publication 275003aboriginal customary laws. The interaction of western australian law with aboriginal law and culture / law reform commission of western australia publication last modified: 24 december, 2015 found a broken link? help us get it right. Email [email protected] 169 australian institute of criminology and law, crime and community safety council 2015 contact us privacy statement disclaimer related items 271380aboriginal customary laws. Discussion paper overview / law reform commission of western australia publication 271556aboriginal customary laws. Email [email protected] 169 australian institute of criminology and law, crime and community safety council 2015 contact us privacy statement disclaimer commenced: 20 completed: 2006 from december 20 to october 2006 the commission undertook a detailed inquiry into the recognition of aboriginal law and culture in western australia.

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Over this period the commission consulted with aboriginal people, communities and organisations in all regions of the state. The commission rsquo s inquiry culminated in a comprehensive final report setting out 131 recommendations for reform of laws and policies and the practices of government agencies, police and courts. The commission rsquo s recommendations seek to respect the cultural diversity of aboriginal peoples and communities in western australia, embrace aboriginal culture, enhance the cultural authority of elders and respected community members, and remove systemic bias and discrimination within the legal system. The commission emphasised the need for flexibility, ongoing consultation and collaboration and the institution of community owned processes to ensure that implementation of recommendations respond to the particular cultural dynamics of a community. Because of this flexibility, many of the commission rsquo s recommendations have the potential to be adapted to suit other australian jurisdictions. Recommendation 56 has since been implemented in geraldton where the state government has announced the launch of an initiative aimed at educating police officers in the area on issues regarding aboriginal culture and heritage through a cross cultural training package. last updated: 19 jun 2014 by dr tatum hands following five years of consultation and research, the law reform commission of western australia has released its discussion paper into the recognition of aboriginal customary laws in that state.

Some 20 years after the publication of the australian law reform commissions report on the same subject, the western australian commission has operated under similarly broad terms of reference and its discussion paper covers discrete areas of interaction between australian law and aboriginal law and culture never before investigated by an australian law reform agency. The commission makes 93 proposals for substantive, procedural and policy reform to provide practical and effective recognition of aboriginal customary laws and of the cultural concerns of aboriginal people in western australia. Throughout its discussion paper, the commission has emphasised an approach to recognition of aboriginal customary law that seeks to remedy systemic bias, embrace aboriginal culture, and enhance cultural authority by encouraging the institution of substantially self determining, community owned processes and programs.

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In teaching a new dog old tricks: recognition of aboriginal customary law in western australia appearing in the next issue of indigenous law bulletin , the commissions principal project writer dr tatum hands will outline a selection of the commissions proposals and discuss the impetus and rationale for reform. 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 commissions 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 commissions 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 commissions 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. 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.

The need for striking a balance between aboriginal and non aboriginal law to address disadvantage and facilitate reconciliation was emphasised. 4 the commissions proposals therefore reflect an approach to recognition that sees wa law the new dog informed by aboriginal customary law and culture the old tricks. Rather than discuss the commissions 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 commissions proposals and which will underpin the implementation of the commissions recommendations. 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 commissions 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 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. 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.