Aboriginal customary law and the common law
The Honourable Justice Bruce Debelle
What is Aboriginal customary law?
A long-existing culture
When the First Fleet arrived in Sydney Harbour in January 1788, the Aborigines had been living in Australia for more than 40,000 years. To the new settlers, the Aboriginal inhabitants of Australia appeared primitive. They had few possessions, no pottery, iron or bronze, no large houses and no tall monuments. But the Aborigines had a society and culture of considerable complexity and diversity. The long cultural heritage of the Aborigines included means by which order was maintained and disputes resolved.
In 1788, there was no single Aboriginal nation and no shared language. It has been estimated that there were as many as 500 tribes or nations, all varying in size and each speaking a different dialect.1 They each occupied more or less discrete areas and there was considerable diversity of language and culture. This diversity was, in part, the product of different degrees of contact with non-Aborigines and, in part, the product of differences in the environment in which different groups lived. Aborigines of the north coastal regions had had contact with Macassan and Indonesian traders or fishermen while others, for example, central desert Aborigines, had had little contact with others. The food-gathering practices and customs of coastal Aborigines differed from those of desert Aborigines. This diversity resulted in differences in some aspects of the law applying in each tribe or nation. Yet, despite these differences, an ‘Aboriginal commonality’ has been perceived and some basic generalisations can be made.
Recognise the differences
When examining Aboriginal customary law, the white Australian inquirer must look out for and recognise the differences in customary law in different parts of Australia. It is also essential to recognise differences between the Aboriginal legal system and the British legal system introduced to Australia. Care must be taken to avoid preconceptions. The law and legal systems would, for many Australians, be defined as a system of rules enforced by a hierarchy of courts, from the magistrates’ courts, through to the District or County courts, Supreme Courts, Federal Courts and up to the High Court. It would also recognise the role of the police force and other law enforcement agencies. Rules of law are identified as consisting of the common law expressed in judicial decisions, statutes made by Parliament, and the plethora of regulations and by-laws made by executive agencies and local authorities. A distinction is made between those rules of law and norms of social behaviour such as rules of etiquette and standards dictated by good manners or ethical and moral values rather than by legal obligation.
In Aboriginal society, there was no system of government in any institutionalised sense. There was no body that made any laws and no hierarchy of courts or other enforcing authorities. There were tribal Elders, but no chieftains nor any ruling class.2 There was no hierarchical system of government within a tribe or group of tribes. Nevertheless, mechanisms for the maintenance of order and the resolution of disputes existed. When they spoke of law, Aborigines did not distinguish in the way white Australians do between norms of social behaviour and mandatory rules, a breach of which might result in severe consequences. All of this would be understood as law. The law had no separate identity so that a system of legal rules cannot be easily identified. Yet, as Blackburn J observed of the Aborigines at Yirrkala, an Aboriginal community near Gove in the Northern Territory:3
The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws, and not of men’, it is that shown in the evidence before me … Great as they are, the differences between that system and our system are, for the purposes in hand, differences of degree. I hold that I must recognise the system revealed by the evidence as a system of law.
White Australian preconceptions or values must, therefore, be avoided. When examining Aboriginal customary law, it is better to ask ‘how is order maintained?’ or ‘by what means are quarrels or disputes resolved?’ than to ask ‘do Aborigines have a legal system?’
The importance of religion and land
To all Aborigines in Australia, religion was the mainstay of social existence. There was no systematic belief in gods, nor any institutions of priesthood, prayer and sacrifice.4 The mythical characters of the Dreamtime provided their source of religion, which focused on every aspect of life. They laid down precepts or made suggestions of which people were expected to take notice.5 They defined the broad rules to be obeyed by both men and women in such matters as sacred ritual, economic affairs, marriage, childbearing and conduct upon the death of relatives. They were the source of Aboriginal life and law. Knowledge and control of certain religious rites, mythology and songs, and possession of sacred objects was vested in a few men of each local group. The authority was not inherited, but rather passed on to men chosen from initiated men.6 Their special knowledge was kept secret from all uninitiated persons, be they other men, women or children. Women had their own secret-sacred religion and knowledge. Today, the white inquirer might still find a curtain being drawn once questions touch on some of these secret-sacred matters.
The relationship of Aborigines with land was both spiritual and physical. Certain sites or areas of land were of special or sacred importance, some falling within the secret-sacred category. Land was also important as a source of food.
The social organisation of Aborigines was complex. The basic social unit was the family, and a group of families made up a band. A group of bands made up a tribe. In Aboriginal belief, all things in the physical and spiritual universes belonged to one or the other of two classes of moieties. Different social units, therefore, belonged to one moiety or the other. Another important social unit was the clan, which is a descent group. Every human being had his clan membership determined at birth. Sections and subsections added to an already complex social organisation.
One of the most important characteristics of Aboriginal society was the concept of kin relationship, which transcended both band and tribe. It is not to be identified with the family system of kinship, which many white Australians might understand. Although the nuclear family was the basic kinship and social unit for Aborigines, there was also a classificatory system of kin relationship that operated throughout Aboriginal society.7 The system still operates among traditional Aborigines and in modified forms among many non-traditional Aborigines. The details can be quite complex. It is sufficient for present purposes to know that kin relationships extend well beyond familial blood ties and are the basis of all social relationships, indicating the range of behaviour expected: ‘It is the anatomy and physiology of Aboriginal society and must be understood if the behaviour of Aborigines as social beings is to be understood.’8 Thus, everyone in traditional Aboriginal society must be identified as part of a kin relationship so that the two persons concerned will know what their behaviour to one another should be. A person coming into a strange group for trading or ceremonial purposes is always allocated a kinship position, if one is not already held.
Kin relationship resulted in obligations. Rules of kinship regulated such matters as marriage and private arrangements, food gathering, distribution and sharing, sharing of other goods, certain trading relationships, and educational roles. Other aspects of kinship obligations were rules by which certain relatives must be avoided.9 Serious breaches of the rules would usually be punished, but failure to meet minor kinship obligations would not attract more than expressions of disapproval.
Some aspects of customary law
Except for a few specific areas, our knowledge about traditional Aboriginal life and its laws is sketchy. The task of identifying legal rules is made more difficult by regional variations. Some rules of fairly common application have been identified.
Women, children and uninitiated persons who saw things forbidden to them such as certain Tjuringa (sacred objects), a sacred place or sacred ceremony, committed an offence against sacred laws. If a person privy to knowledge or custody of sacred matters were to disclose them to a person not entitled to that information, he too might be guilty of a breach of law. The penalty was often death. In other cases, the offender might be speared.
Rules permitted or encouraged marriage with certain relatives and prohibited marriage with others. Marriages were normally arranged, usually between a young girl and a man many years older. The girl was sometimes promised before she was born. In the context of incest, according to customary law, a man must not cohabit with his sister, mother or wife’s mother. The punishment was death, but if the degree of relationship was not close, banishment from the corporate life of the tribe or some other punishment might suffice.
Adultery and elopement were serious offences and might attract spearing as a penalty. Inflicting serious physical injury might also be punished by spearing. Murder could be dealt with in a number of ways. Firstly, there might be open physical retaliation usually by a member of the family under a kinship obligation to the deceased: that is, what has often been called ‘payback’. The kinship obligation would require a certain relative to avenge the death notwithstanding his own personal views. It could not be relied on to put an end to disputes. Blood feuds extending over many years and breaking out into open violence were not unknown.10 Secondly, compensation in the form of goods may be offered, or demanded, for a death, but acceptance was no guarantee that revenge would not be attempted. Thirdly, where physical vengeance was not practicable, the murderer would be identified to the satisfaction of the victim’s relatives. One of them would perform sorcery, or threaten to do so, or claim to have done so if that particular person became ill or died. The fourth method used throughout northern Arnhem Land was the magarada, a form of settlement by combat involving a ceremonial running of a gauntlet of spears, usually blunted.
A convenient summary of the rules of customary law as practised by one tribe of Aboriginal people is contained in a study of the Walbiri tribe by Meggitt in 1962, which categorised a number of offences that are commonly recognised by the Walbiri as unlawful forms of behaviour.11 The totality of the rules expresses the law, djugaruru, a term he translated as ‘the line’ or ‘the straight or true way’. He continued:
The law not only embraces ritual, economic, residential and kinship rules and conventions but also what we would call natural laws and technological rules. The care of sacred objects by the men of one patrimoiety, the sexual division of labour, the avoidance of mothers-in-law, the mating of bandicoots, the rising of the sun, and the use of fire-ploughs are all forms of behaviour that is lawful and proper – they are all djugaruru.
Meggitt goes on to point out that, although in pre-contact times Aborigines were probably rarely required to distinguish between rules of law and norms of polite behaviour, contact has sharpened the distinction. Today, differences can be seen between an offence and poor taste. He is thus able to identify a set of legal rules.12
A. Offences of commission:
1. Unauthorised homicide (that is, not decreed as a punishment for another offence).
2. Sacrilege (that is, the unauthorised possession of sacred knowledge and objects and the unauthorised observation of sacred rituals).
3. Unauthorised sorcery (1 and 3 are not easily distinguished).
4. Incest (copulation with actual kin of certain categories).
5. Cohabitation with certain kin (usually classificatory relatives in the categories associated with 4).
6. Abduction or enticement of women.
7. Adultery with certain kin (usually classificatory relatives in the categories associated with 5).
8. Adultery with potential spouses (7 and 8 in effect cover all cases of fornication).
9. Unauthorised physical assault, not intended to be fatal.
10. Usurpation of ritual privileges or duties.
11. Theft and intentional destruction of another’s property (exclusive of 2).
12. Insult (including swearing, exposure of the genitals).
B. Offences of omission:
1. Physical neglect of certain relatives.
2. Refusal to make gifts to certain relatives.
3. Refusal to educate certain relatives.
Meggitt has identified the following punishments for these offences.
a. caused by a non-human agency (A2)
b. caused by human sorcery (A1, possibly A3)
c. caused by physical attack (A1, possibly A3).
2. Insanity – caused by a non-human agency (A2).
3. Illness – caused by human sorcery (A1, A2, A3, A5, A6, A7, A8; B1, B2).
4. Wounding – attack with a spear or knife, intending to draw blood (A5, A6, A7, A8, A9, A10, A11).
5. Battery – attack with a club or boomerang (A6, A7, A8, A9, A10, A11, A12; B1, B2, B3).
6. Oral abuse – this accompanies all human punishments.
7. Ridicule – this is directed mainly at offences of omission.
The range of penalties is as limited as the range of offences. There is some debate whether ostracism and exile were ever traditional punishments.13 The state of penalties were, in fact, the maximum, but it was possible for those sympathetic to the offender or his kin to plead for a lesser punishment. Partly because most social behaviour conforms to a regular pattern, partly because of the limited number of possible offences, and partly because of the relative impossibility of offending without others knowing, it was rare that public opinion was divided on the question of whether a person had broken the law. Such popular consensus, of course, does not always mean that he is guilty but it appears that miscarriages of justice were uncommon. Punishment was usually meted out in the public gaze. There was almost no privacy in any camp. The publicity may have been a significant factor determining the general conformity of the people to the more important rules.
Who is subject to Aboriginal customary law?
The change in traditional Aboriginal society as a result of British settlement has altered the extent to which Aboriginal customary law governs the lives of many Aborigines. Policies of settlement and dispossession have displaced some Aborigines from traditional lands and thus affected traditional authority. Other Aborigines have come to reside in cities and rural centres, thus increasing contact with European culture. Although many Aborigines may originally have had no intention of giving up traditional ways, they nevertheless became less inclined to return to them. The availability of medical skills, education and modern technology have all increased the degree of contact with Europeans and European ways. Modern telecommunications and means of travel add further pressures. Aircraft, motor cars, telephones, radio and television provided in remote areas by satellite and other means may lead to a conflict between the desire to take advantage of what Western civilisation has to offer and a retention of traditional lifestyle.
Western society has introduced foreign problems to traditional Aboriginal law. Alcohol and drugs have had a devastating effect, removing the restraints and social inhibitions that regulated Aboriginal society. The capacity to buy food at a store has altered obligations concerning hunting and food gathering. Payments of social service benefits often cut across traditional family structures and kinship rules. Aborigines seek education for their children. But that very education can undermine traditional authority and lead to questioning of traditional rules and punishments.
Encouraging the establishment of Aboriginal organisations and the granting of land rights might have assisted in some kind of revival of Aboriginal law and culture. But the influences that might displace Aboriginal customary law continue to exist. In addition, the establishment of Aboriginal organisations with office-bearers often being younger Aborigines educated in schools and universities and more experienced in the ways and concepts of the wider Australian community sometimes cut across traditional lines of authority. The granting of land, the impact of mining and the payment of mining royalties also have their effect upon traditional life and culture.
Aborigines today live in a wide variety of communities varying from cities to remote communities. Aborigines represent a little over 1 per cent of the Australian population and about 80 per cent of Aborigines live outside major urban centres.14 Non-urban Aborigines live in communities that vary enormously in size, character and location. They include small, remote communities, outstations, missions, groups on pastoral properties, pastoral properties owned by Aborigines, and those residing in or on the fringe of country towns.
For many urban Aborigines living in cities and large towns, traditional rules no longer have the force they once did.15 This is not to say that aspects of kinship and other rules have no place in their lives. More traditionally oriented Aborigines reside in the more remote areas of Australia, some living in small communities and others in large communities numbering over a thousand. Between these two groups of Aborigines is a large number of Aborigines for whom traditional Aboriginal law, culture and ways of life have been extensively modified by residence close to towns in more remote areas. They are sometimes referred to as ‘fringe dwellers’.16
There is, therefore, an enormous variation in the extent to which Aborigines are governed by Aboriginal customary law. Although these three groups have been identified, generalisations must be avoided. There will be differences in the composition and nature of these groups in different parts of Australia. Nor should it be assumed that in any one area there is any inevitable or regular movement away from more traditional to less traditional ways of life. The extent to which there is any movement from traditional ways of life is influenced by factors such as economic development, the level of Aboriginal and non-Aboriginal population, the degree of government inter- vention and non-intervention, land rights, the impact of pensions and other inroads on kinship and other traditional obligations, and the internal dynamics of the community. The extent to which Aboriginal customary law will continue to exist will vary from community to community and, as a general rule, will be stronger in more remote communities.
The application of English law
Initially, English law was applied to colonists who had committed offences against Aborigines and to Aborigines who had committed offences against colonists. But the application of English law to Aborigines who had committed offences against one another was less certain and the wisdom of doing so was questioned. Although some, including judges, took the view that, in respect of purely Aboriginal matters, Aborigines should be governed by ‘their own ancient usages’, the Supreme Court of New South Wales in 1836 in R v Jack Congo Murrell17 decided that English law should apply to offences committed by one Aborigine upon another. The Supreme Court had to deal with two distinct cases in which one Aborigine had been charged with the murder of another. In Murrell, the defendant alleged that he was so drunk he could not help the killing. In the other, the defendant relied on Aboriginal customary law. His victim was, apparently, a member of the group that had killed his brother and it was a case of obedience to the Aboriginal custom of revenge killing. The court held that there was no distinction between offences committed by white people upon one another and by Aborigines upon one another:18
Serious cases might arise if these people were allowed to murder one another with impunity, our laws would be no sanctuary to them. For these reasons, the court has jurisdiction.
Although the decision was ultimately regarded as settling the issue, judges in other jurisdictions questioned whether Aborigines should be subject to English law.
In South Australia, Cooper J held the view that it was19
… impossible to try according to the forms of English law, people of a wild and savage tribe whose country although within the limits of the province of South Australia, has not been occupied by usurpers, who have never submitted themselves to our dominion and between whom and the Colonists there has been no social intercourse.
Similar views were expressed by Willis J in 1841 in the Supreme Court of Victoria when he said that ‘there is no express law which makes the Aborigines subject to our Colonial Code’.20 Cooper J in South Australia remained unwilling to concede that Aborigines should always be tried for offences under British law. In 1846, an Aborigine was brought before the court for killing another. Cooper J argued that he required a legislative direction if such cases were to be justiciable and the accused was discharged because no competent interpreter was available.21 In 1848, the judge accepted jurisdiction when an Aborigine was tried for an offence against another, but indicated before the trial commenced that ‘in the case of a conviction he would stay any execution required by law and specifically refer the case to the governor’.22 In Western Australia, views differed as to whether Aborigines should be subject to European law.23
The rule in Murrell was tempered by a practice of non-involvement of law enforcement agencies in disputes between Aborigines and by decisions not to prosecute for that offence or by mitigating sentences for offences between Aborigines. But the basic rule remained and Aborigines were subject to English law. In the case of criminal law, in practice, both before and after 1836, the law was applied differentially and, especially in remote areas, haphazardly, so that few killings (whether an Aborigine was an offender or victim) were prosecuted.24
The rule that Aborigines are subject to the same criminal law as non-Aboriginal Australians was reaffirmed by Mason CJ in the High Court in 1994 in Walker v State of New South Wales.25 Walker, an Aborigine, was charged with an offence against the law of New South Wales. He claimed that the Parliament of New South Wales lacked the power to legislate affecting Aboriginal people or, alternatively, that State legislation affecting Aboriginal people had no operation until it was adopted by them. Mason CJ rejected the claim holding that Australian criminal law does not accommodate a body of law operating alongside it and that there is nothing in Mabo v Queensland (No 2) to provide any support for the proposition that criminal laws of general application do not apply to Aboriginal people.26
Notwithstanding that Aborigines and non-Aborigines are all subject to the same law, courts in Australia have from time to time recognised certain aspects of Aboriginal customary law. Most of the recognition has occurred in relation to the criminal law, but there has been significant recognition in aspects of the civil law. Some of those aspects of Aboriginal customary law that have been recognised will now be examined.