Australia’s (Slow) Experiment with Indigenous Customary Law in Intestacy

Introduction

Australia’s treatment of its Indigenous^[1] people in terms of dispossession of land is well known. The legal fiction of terra nullius continued to operate until 1992 when the Mabo decision held that it was a legal fiction.^[2] Despite the ability to claim native title in very limited circumstances, the sequelae of the dispossession continues in the form of the gap between life expectancies between Indigenous and non-Indigenous people,^[3] poverty,^[4] and the enormous rates of Indigenous incarceration^[5] compared with the general population. However, this is also a great success story, because in spite of all this, Indigenous traditions in Australia continue to operate, making this the oldest continuous culture in the world^[6] and a burgeoning middle class is developing^[7] which is addressing many issues previously neglected.

What is thought of less is Australia’s lack of attention to the civil law needs of its Indigenous people. Funding for the Aboriginal Legal Service, for example, has been almost entirely for criminal matters. There has been scant attention paid to Indigenous customary law and then the major area of attention has been in sentencing in criminal matters. In the last twenty years there has finally been some attention paid to the issues Indigenous people face in respect of civil law and one area which is just beginning to have attention paid to it is the common law of succession and how it affects Indigenous people. There has been little research and little government interest. Rather there have been assumptions that civil law needs did not matter, and that ad hoc responses were sufficient, because either a person was ‘traditional’ and therefore the common law system was entirely irrelevant to them (apart from the damage it did to them) or they were ‘non-traditional’ and therefore the common law would apply perfectly to Indigenous people as if they were ‘whitefellas’ and there would be no issues. Of course, neither of these propositions was true. In relation to succession law this myth was associated with some other myths such as the view that Indigenous people were spiritual and therefore not interested in owning land or things, which was extremely convenient for non-Indigenous people who did want those things. These issues interacted with other myths such as that all Indigenous people have the same customary law, and that Indigenous people are defined by blood.^[8]

What is clearly true is that for Indigenous people in Australia the common law statutory intestacy regimes are unsuitable.

Ignoring the Civil Law Needs of Indigenous People

As stated above, Australia’s record of treatment of its Indigenous people is not good. There are very many issues created by dispossession of land, discrimination and some of these have been recognised and responded to, albeit often inadequately. The Aboriginal Legal Services across Australia are a very important part of the response to the damage done to Indigenous people in Australia, but they will be the first to tell you that their budgets are inadequate to cover most matters beyond criminal law. Where customary law has been discussed it has been almost completely in respect of criminal law, such as the use of alternative punishments and restorative justice’s use of Indigenous forms and Elders to assist with criminal justice for Aboriginal youth in particular, not always successfully.^[9] The most significant recognition of Indigenous civil law needs has been in respect of native title, which is dependent on recognition of customary law, but is significantly circumscribed by the legislation and the jurisprudence surrounding it.^[10] As Libesman says ‘How can Aboriginal and Torres Strait Islander peoples’ laws be acknowledged for the purpose of recognising native title while simultaneously denied for all other purposes?’^[11] This was a very limited recognition of customary law, which we discuss further below.

In tort law there is limited recognition of customary law in respect of matters such as the assessment of damages – for example, in Napaluma v Baker^[12] an Indigenous man in the Northern territory who had suffered brain damage was awarded damages for the fact that he would no longer be able to become an elder.

Recognition of Aboriginal Heritage and of the need to protect Indigenous knowledge, intellectual property, and confidential information, has been one of the few other areas where Indigenous civil law needs have been considered. Terri Janke’s study^[13] of these needs in respect of cultural heritage was a seminal work and there has been some protection of these needs by the common law, but not by recognition of customary law as law.

Recognition has been very late in coming, and even research into the civil law needs of Indigenous people has been late and slow, although it is now beginning to appear. Colin Tatz wrote in 1984 that civil law was completely overshadowed by criminal law in relation to Aboriginal people. He noted that when Aboriginal people were wards of the State not one single action was brought on their behalf for lost wages and rations between 1954 and 1964.^[14] A rare example of civil law was an equity suit in which the Pitjantjatjara Council obtained an injunction to prevent the distribution of a book which they argued would reveal their secrets.^[15] My own research into the succession law needs of Indigenous people in Australia only commenced in the 1990s, and since then a small number of surveys about the general civil law needs of Indigenous people have been carried out.^[16]

Colonial common law intestacy rules were irrelevant to Indigenous people who were living entirely traditional lifestyles and who continued with their customary law practices. There was no need to pass on land because for Aboriginal people it was ‘owned’ collectively, although Torres Strait Islanders had different land ownership rules and were more likely to have rules for passing it on. Obligations to care for kin were well understood and did not require documents to operate. In some groups the dwelling of the deceased was burned and not approached for a considerable time. Some groups did not name the deceased after death for a long time, but others did not have this rule. Often the deceased’s few possessions were burned. Where customary law was in full operation its dispute resolution processes managed problems, but as Indigenous people began to move into urban environments, many of these processes broke down somewhat. This is not to say that customary law disappeared, but that some of the processes could not be easily translated into urban living. One example was the burning of the person’s home. Where this was the custom and people were living in social housing this was obviously frowned upon, but policies were developed to allow another Indigenous family, unrelated to the deceased, to swap houses so that the original family was not disturbed by the spirit of the deceased.

Succession Law: Common Law vs Customary Law Before the NSW Legislation

What is really striking is the extent to which inheritance issues were completely ignored by governments and common law in the early twentieth century. There was very little discussion, but the assumption was made that if an Indigenous person no longer lived a completely traditional life, then the common law would be suitable. Eventually there was some recognition that this was inadequate, but it was not articulated clearly and the law which developed to respond to this, particularly in Western Australia and Queensland, was also inappropriate.

One preliminary matter is the status of Indigeneity in Australia. The standard test used today to determine whether someone is Aboriginal or Torres Strait Islander is the three- part test:

• Does the person identify as Aboriginal or Torres Strait islander?

• Is the person accepted by their community as Aboriginal or Torres Strait Islander?

• Is the person descended from an Aboriginal or Torres Strait Islander person?^[17]

This test is broadly used, but ‘some anachronistic principles that courts may subtly embed in legal Aboriginality are not explicitly articulated’^[18] and ‘the judiciary continue to examine Aboriginality as a question of fact and of statutory interpretation rather than as a question of law’.^[19]

In the history of the treatment of intestacy for Indigenous people we can see that the definition of the identity of Aboriginal and Torres Strait Islanders has created problems.

In Western Australia and Queensland in the 1970s and 80s legislation which ostensibly recognised customary law but in fact amounted to almost systematic theft was passed.

In Queensland the Community Services (Aborigines) Act 1984 and its counterpart the Community Services (Torres Strait Islanders) Act 1984 gave the Under-Secretary of the Department of Community Services the power to decide who would inherit from an intestate Indigenous person, and if they could not identify a successor, to put the money into general departmental funds for Indigenous people. This mirrored earlier legislation, the Aborigines Act 1971 (Qld). The decision of the under-Secretary was final. There was no requirement to use customary law. This legislation has now been repealed.

Western Australia also had special provisions for intestate Indigenous people. The Aboriginal Affairs Planning Authority Act 1972 (WA) s 35 provided that any property of an intestate Aboriginal person (who was more than a quarter of the full blood) and who had not been not been married under the Marriage Act 1961 (Cth) would vest in the Public Trustee who was to pay debts and distribute to persons under the ‘usual’ intestacy laws. ‘Usual’ meant the common law statute. If that was not possible, the Public Trustee was supposed to consider customary law. The legislation contemplated regulations being made about customary law, but in fact the regulations merely recognised a ‘traditional’ marriage and legitimated the children of that marriage. Otherwise the regulations looked remarkably similar to the traditional common law intestacy pattern. Any person of less than one-fourth of the full blood would not have their estate managed by customary law. To exacerbate the problem of lack of recognition of reality, if a person had been married under the Marriage Act 1961 (Cth), they would not be regarded as Aboriginal. This latter was based on the assumption that if a person was married under the Marriage Act they did not live a traditional life. In fact this was a deeply wrong assumption because the one thing many traditional Indigenous people did, especially when they were living on missions on reserves, was get married under the Marriage Act 1961 (Cth).

What is wrong with this legislation? It privileges the usual statutory intestacy rules and only allows ‘customary law’ (so-described) to operate if no person satisfying the usual rules (the statutory intestacy rules) can be found. This is not giving effect to customary law. Although it prescribes a system where this so called ‘customary law’ applies it never asked the people what their customary law was nor did it provide a means of finding out.

The mismatch between intestacy laws and Indigenous lives meant that the mainstream intestacy laws were profoundly inappropriate for Indigenous people.^[20] The most striking example of this is kinship. In the western tradition, we are almost unconscious of the fact that kinship begets obligation, even though all our inheritance traditions clearly operate in this way. Western kinship traditions as they are exemplified in the common law emphasise bloodlines, even to the extent of distinguishing between half blood and whole blood relatives. They do not recognise adoption without formal documentary processes. They focus on lines of inheritance going from the past to the future through blood ties and tend to ignore collateral relatives. Primogeniture of some kind is common, although now modified. The nuclear family is emphasised with the emphasis on mother, father and children. More distant relatives may be ignored.

Most Indigenous Australian nations have different kinship patterns from the pattern the common law uses. They are not all the same, but there are some common patterns.^[21] These include less emphasis on blood and easier recognition of adoption, a view of time which is more circular than linear and therefore relationships may be repeated across different generations. For example, a ‘spouse’ may exist for one person in three generations – this does not mean the propositus sleeps with all three, but that other rules of behaviour and obligation apply to all three. The nuclear family is not emphasised. The most obvious way to show how a mismatch occurs is to consider relationships which the common law sees as aunt/uncle and niece/nephew. The common law sees the mother-child relationship as applying only to the children of the body of the mother. In many Aboriginal nations there is a rule that classifies person A’s same-sex sibling’s children as A’s children, rather than as A’s nephews and nieces as the western pattern of the common law would see it. In many Aboriginal nations a grandmother’s obligations to her grandchildren are more like western mother’s obligations to her children, for example, than the looser expectations western kinship seems to apply to grandmothers.

Clearly, if we apply a set of rules based on western kinship ideas to a group which does not see kinship in the same way, we create a situation where the intestate’s ideas of who s/he is closest to does not match the rules. The people who the intestate would have regarded as their closest kin (such as a woman’s children who are the body-children of her sister) may be disregarded. This will profoundly disrupt the ordinary expectations of obligation for the group and create ill will and chaos. It is also vital to note that just because a person moves from a traditional to urban lifestyle or become a professional does not mean that they will change who they think are their closest kin. This latter point is one which has eluded many policy-makers, although they are starting to comprehend.^[22]

The Western Australian legislation and its regulations were strongly criticised. The legislation was repealed by a bill passed in 2012 and given Royal Assent, but not proclaimed until 6 August 2013.^[23] The repealing Act did not replace the legislation with anything allowing the use of customary law. The current (October 2020) Aboriginal Affairs Planning Authority Act 1972 is missing ss 34-38.

The other jurisdiction which recognised Indigenous customary law in intestacy matters was the Northern Territory, where the highest proportion of Indigenous people exists in an Australian population – 30.3% in 2016. This compares to approximately 2.5-3 % of the population being Indigenous across Australia. This legislation took the approach of asking for a distribution scheme to be submitted to the court by person’s thinking they would be customary law beneficiaries. Unfortunately, the legislation only applied to Indigenous persons if they had not been married under the Marriage Act 1961 (Cth), thus excluding many Indigenous people. It has been rarely used.

The major recognition of customary law that existed before the Status of Children Acts abolished the status of illegitimacy was the recognition of traditional marriage, but as we have seen above, in some situations this had the opposite effect to the one intended.

Customary Law as Law

It should be clear by now that the idea of ‘customary law’ as law took a very long time to be recognised in Australia. From the nineteen sixties onwards a number of Law Reform Commission Reports considered the use of Aboriginal Customary Law within the legal system.

In 1986 the Australian Law Reform Commission had a major reference on Recognition of Aboriginal Customary Law.^[24] The Report noted that there were real difficulties with consultation, and particularly with consultation of women, who would not speak in a meeting involving men and women. The Commission also noted that ‘there are many indications that Aboriginal customary laws and traditions continue as a real controlling force in the lives of many Aborigines.’^[25] But they noted that very early in the colony, the Crown had taken the view that its law applied to all inhabitants of the colony, even where what was involved was a ritual revenge killing under customary law.^[26] Recognition of Aboriginal customary law as law was problematic because it created uncertainty in the common law, so it was very limited. Ultimately the Commission recommended that Aboriginal Customary Law and Torres Strait Islander customary law should be recognised, subject to human rights, and within the background and general framework of the common law. In particular, they suggested that ‘Specific, particular forms of recognition are to be preferred to general ones’.^[27]

The next thorough look at the need for recognition of Aboriginal customary law was by the WA Law Reform Commission.^[28] The WA Law Reform Commission included in its consideration of Aboriginal Customary Law consideration of burial rights and inheritance. A brochure produced for inheritance rights consultation explained:

Under the laws of Western Australia when an Aboriginal person dies (and that person has not made a will which directs who their property should go to) the distribution of their property is undertaken by the Public Trustee. The property will be given to the deceased person’s immediate family in accordance with the hierarchy set out in the Administration Act 1903 (WA). If no spouse, de facto spouse or immediate blood relative (such as children, parents, sisters or brothers) can be found then the distribution scheme under the Aboriginal Affairs Planning Authority Act 1972 (WA) (the AAPA Act) is applied. The AAPA Act says that property can go to a customary law spouse, the children of a traditional Aboriginal marriage or the parents of the deceased. Although the AAPA scheme was set up to give recognition to traditional Aboriginal marriages and customary laws of distribution it has been widely criticised. In particular, the emphasis remains on lineal relationships such as parents, spouse and children (reflecting a non-Aboriginal notion of kinship) rather than the broader range of relatives that are considered to be someone’s mother, father, wife, husband, sister or brother under Aboriginal kinship rules (classificatory kin). It also favours distribution of property to male relatives. Another important criticism is that the scheme discriminates against Aboriginal people because they are not permitted to apply to distribute the property of their deceased relative – the Public Trustee must do that. The Public Trustee has also reported some special difficulties faced by Aboriginal people in proving their entitlements under the Administration Act. One of these difficulties is that many Aboriginal people born prior to 1970 did not have their births registered so they can’t always prove their relationship to the person that has died.

The commission noted that customary law of inheritance applied in WA in the following ways:

As outlined in the Commission’s Discussion Paper, relevant customary laws still practised in Western Australia include distribution of property to designated kin; destruction of a deceased’s property (usually by fire); disposal of property to distant tribes or groups; and determination of property distribution by family Elders.^[29]

They recommended that the law should be changed in a number of respects including allowing the recognition of classificatory kin for inheritance purposes. There was no movement on this issue.

Law Reform Commissions did consider Aboriginal customary law and intestacy on occasion. The Queensland Law Reform Commission in 1993 ‘cautiously refrained’ from approaching the area, partly because it would be very difficult to consult the Aboriginal community, and that customary law was broader than succession, so it would not be sensible to only reform one area:

Until extensive work has been done to bring knowledge of customary law clearly into focus and widespread consultation has been initiated and brought to fruition, the Commission is of the view that it could be counter-productive , even misleading, to introduce legislation at the present time purporting to affect common law or to recognise it, in the narrow context of intestacy rules.

The Uniform Succession Laws movement was a project aimed at creating uniformity across the Australian jurisdictions in relation to succession laws. Inheritance issues were divided amongst State Law Reform Commissions. The NSWLRC considered and produced Report 116 on Intestacy in 2007. They recommended that the Northern Territory provision without the Marriage Act requirement be incorporated into the law. This would allow customary law to be considered in dealing with the death of an intestate Indigenous person. This gave rise to the Succession Act 2006 (NSW) Part 4.4 and the Intestacy Act Part 4 2010 (Tas). The other jurisdictions have not (yet) implemented this reform.

The NSW Succession Act Part 4.4: A New Approach

The Succession Amendment (Intestacy) Act (NSW) was passed in 2009. It restructured the intestacy law to conform with the proposed Uniform Succession Law and in doing so added a new provision Part 4.4 to allow the use of customary law in Intestacy where the deceased was Indigenous. It is similar to the Northern Territory provision without the Marriage Act limitation.

The Succession Act 2006 (NSW) now provides (in relation to Part 4.4):

101 Definitions
…
“Indigenous person” is a person who:
(a) is of Aboriginal or Torres Strait Islander descent, and
(b) identifies as an Aboriginal person or Torres Strait Islander, and
(c) is accepted as an Aboriginal person by an Aboriginal community or as > a Torres Strait Islander by a Torres Strait Islander community.
…

133 Application for Distribution Order
(1) The personal representative of an Indigenous intestate, or a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged, may apply to the Court for an order for distribution of the intestate estate under this Part.
(2) An application under this section must be accompanied by a scheme for distribution of the estate in accordance with the laws, customs, traditions and practices of the community or group to which the intestate belonged.
(3) An application under this section must be made within 12 months of the grant of administration or a longer period allowed by the Court but no application may be made after the intestate estate has been fully distributed.
(4) After a personal representative makes, or receives notice of, an application under this section, the personal representative must not distribute (or continue with the distribution of) property comprised in the estate until:
(a) the application has been determined, or
(b) the Court authorises the distribution.

134 Distribution Orders
(1) The Court may, on an application under this Part, order that the intestate estate, or part of the intestate estate, be distributed in accordance with the terms of the order.
(2) An order under this Part may require a person to whom property was distributed before the date of the application to return the property to the personal representative for distribution in accordance with the terms of the order (but no distribution that has been, or is to be, used for the maintenance, education or advancement in life of a person who was totally or partially dependent on the intestate immediately before the intestate's death can be disturbed).
(3) In formulating an order under this Part, the Court must have regard to:
(a) the scheme for distribution submitted by the applicant, and
(b) the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged.
(4) The Court may not, however, make an order under this Part unless satisfied that the terms of the order are, in all the circumstances, just and equitable.

135 Effect of Distribution Order Under This Part
A distribution order under this Part operates (subject to its terms) to the exclusion of all other provisions of this Act governing the distribution of the intestate estate.

It can be seen here that the scheme looks relatively simple. People who regard themselves as entitled under the ‘laws, customs, traditions and practices’ of the Indigenous community or group to which the Indigenous and intestate deceased belonged may apply to the court for an order to share in that entitlement. The application should consist of a scheme for distribution.

The simplicity is deceptive.

The definition of ‘Indigenous’ is the standard one used in Australia to identify Indigenous persons. It incorporates descent, identification and acceptance.

The reference to ‘laws, customs, traditions and practices’ is not standard. This came up in the first case which took several years to be decided. This was In Re Wilson, decided in 2017.^[30]

Mr Wilson was an Aboriginal man who died intestate. He left two adopted half-sisters, the children of his adoptive father by a second marriage, who were much younger than him and whom he may have seen only once or twice in his lifetime. He also left three natural half-sisters with whom he had spent the last twenty years of his life within the Aboriginal community in Sydney.

Mr Wilson had been adopted at birth by a non-Indigenous couple. His natural mother was only 17 at the time (in 1956). This occurred during the period of what we call the ‘stolen generations’ when children were taken from Aboriginal parents to be brought up in non-Indigenous homes or institutions. Mr Wilson’s mother was a woman of the Gunditjmarra nation in Western Victoria. She later married and had three daughters, but never stopped looking for her son. The adoption was closed and despite her attempts it was not until after her death that adoption information became more freely available and the daughters found him. Under the adoption legislation all other relationships are technically ended, so that the common law regarded only the adopted half-sisters as the deceased’s relatives. This was the situation that Mr Wilson’s sisters sought to challenge using Part 4.4.

The case was heard by Lindsay J in the Supreme Court of NSW. Ultimately he held that the legislation in Part 4.4 was activated by the situation, and that the natural kinship ties under customary law should be recognised so that Howard Wilson’s three natural sisters inherited on his intestacy. Because the legislation also has the ‘just and equitable’ requirement in s 134(4), he also held that a small amount should be awarded to the adoptive half-sisters. The addition of the adoptive half-sisters shows that the decision was not being made entirely according to customary law.

The legislation requires a scheme of distribution showing the ‘laws, customs, traditions and practices’ of the relevant first nation. The evidence led about this included letters from elders of the Gunditjmara country, and the local Aboriginal Land Council saying that under customary law the three sisters would be entitled to inherit from their half-brother.

In his judgment, Lindsay J said the phrase ‘laws, customs, traditions and practices’ was ‘practically equivalent’ to customary law, but he argued that it should be read in its context which he said was the distribution of an intestate estate. He argued that neither expression is intended necessarily to be a complete system of law with a field of operation beyond the particular subject-matter at hand’,^[31] and that they were both ‘manifestations of community’.

To say the ‘laws, customs, traditions and practices’ were ‘manifestations of community’ is to raise the level of generality to a level where the customary law might be so vague as to be unenforceable and therefore not law at all. This is problematic if we think that it is important to recognise the customary law as law. Without wishing to go too far into issues of sovereignty it is clearly paternalistic to ignore the ‘Law-ness’ of customary law of Indigenous people, and there is a burgeoning literature about international legal recognition by First Nations in Australia recognising each other’s law as well it being recognised by the law of the colonisers.^[32]

Justice Lindsay was concerned about access to justice and wished to take a remedial approach which would not create excessive cost. He pointed out that the general law requires foreign laws to be proved by evidence as matters of fact.^[33] His concern was that this would create a high evidentiary burden which could operate as a legal and financial bar to access for Indigenous people seeking to use the legislation. He appeared to think this might mean requiring expert evidence from anthropologist, historians etc which might become very expensive. This concern for costs is well-placed, but it may fail to take into account the proper levels of authority within the customary law legal systems. By this I mean that part of recognising customary law is recognising who has the authority to determine what it is in its own terms. I will discuss this further below.

Justice Lindsay’s general approach was followed in the two cases which followed. In Estate of Mark Edward Tighe^[34] Justice Kunc noted how important it was to determine which group or nation the deceased had belonged to in order to determine which customary law was relevant. This requirement is a step towards genuine recognition of customary law. He also emphasised that the requirement in the legislation for a ‘scheme for distribution’ should be treated as a matter of ‘substance not form’.^[35] This was intended to make the process easier for claimants.

He also discussed the ‘equitable and just’ jurisdiction, pointing out that it should be exercised rationally according to legal principles including those in the Act. This means that there was not necessarily an assumption that the usual intestacy principles would not apply.

An important point that he noted was that the Evidence Act 1995 (NSW) specifically exempts evidence of representations about content of Aboriginal and Torres Strait Islander traditional customary law from the hearsay rule. This reduces the difficulty of receiving evidence about customary law, because much of it was oral.

The third case under the legislation, Jerrard,^[36] was the first one to involve competing interpretations of the customary law between the two parties. The traditional laws and customs of the Nucoorilmaa Clan of the Gomeroi People from Tingha in northern New South Wales were in issue. The dispute was between mother and father of a deceased young man, where the mother claimed that she had raised the young man alone, while the father lived with another woman in the same community with whom he had three other sons. Lindsay J decided this case again. The evidence about customary law included an affidavit from the plaintiff mother’s mother claiming expertise in traditional law, a letter from the CEO of the local Aboriginal Land Council, letters from Elders and the community and extracts from publications. It is arguable that the evidence from the Elders should have had sufficient authority to be clear evidence of the customary law. The letter from the CEO of the local Aboriginal Land Council would not necessarily be authoritative about customary law.

The defendant argued that even if the customary law excluded him, it would not be ‘just and equitable’ within the terms of the Act to exclude him. Again, this demonstrates that the legislation does not quite apply customary law. Lindsay J in considering this argument used the fact that the hearsay rule and opinion rule do not apply to evidence of Indigenous customary law^[37] to allow him to focus on the relevance and probative effect of the material rather than admissibility. Ultimately Lindsay J decided in favour of the mother on the basis of ‘attention[to] a deceased person’s testamentary freedom, the possibility that there are people who might be thought to have had a just or moral claim upon him or her; and the possibility that there are also people for whom he or she might have been expected to make provision’^[38] as factors bearing on what is just and equitable. This is not the application of customary law: it is the very common law weighing up that is done for family provision cases. It is arguable that the emphasis on testamentary freedom in his determination is using a profoundly common law concept which had no place in Indigenous customary law.

The Family Provision legislation in NSW requires the court to consider ‘(o) any relevant Aboriginal or Torres Strait Islander customary law.’^[39] This means that if an Indigenous person dies and a family provision claim is made, customary law must be considered – but the eligibility requirements for family provision are based on western kinship rules and therefore significant people under customary kinship rules may not be able to get to the point where customary law is considered.

Common Law vs Customary Law in Australia: Authority Issues

The recognition of who has the authority to determine the rules of customary law has been a significant problem in Australian common law. Problems of authority are the most significant problems in interdisciplinary and comparative work in law. Each discipline has its own epistemic community with a view of how truth is to be determined. In law this is called ‘authority’ so I use this terminology here. When customary law is discussed in Australia it has often in the past been thought of not as comparative law, but as interdisciplinary in that for non-Indigenous people anthropology has been the basis for research on it, and it was seen as ‘custom’ rather than ‘law’. Until fairly recently at least, it has been studied by anthropologists rather than comparative lawyers and this is the evidence that courts have used as facts to inform their treatment of Indigenous people. This also created a problem in that the definition of law used by anthropologists has tended to be wider than that used by lawyers who are more likely to define law in terms of what may be coerced. Maddock refers to Dickie saying anthropologists mean ‘all the main rules which control the behaviour of a particular society regardless of any sanction’.^[40]

Legal systems frequently recognise other legal system’s rules of authority. For example, if an Australian person makes a will which covers land in Malta, the conflict of laws rules applied by Australian law recognises Malta’s rules about land law. This is done often and there is no difficulty with recognising the relevant authority of the law. Australian common law has rarely recognised Aboriginal Customary Law as law (except in very particular cases) and therefore does not recognise its rules of authority in relation to inheritance as it might if it were to see it as law.

As noted above Indigenous customary law was and is recognised only marginally in Australian law.^[41] It is taken into account in sentencing,^[42] for assessment of damages in tort law^[43] and for native title.^[44] Many of these issues are created by the failure of Australian common law to recognise the authority of Aboriginal customary law or to see it as law. It is still common for Indigenous customary law to be seen as ‘culture’, ‘religion’ or ‘custom’ and therefore as not due the deference that another legal system might be given. That is, what is happening here is not really recognising the customary law as law. It is treating the matters raised as ‘cultural facts.’ In the same way that we might argue that the fact that a person suffered from severe abuse as a child affects the sentence that they might get, the Australian courts have been willing to recognise as a fact the likelihood that customary law as a cultural fact might prevent a person from recovering from tortious injury, for example. In order to actually recognise Indigenous customary law as law we need to address the problem of authority which occurs in this space, which is different from the problem of, for example, English law applying Netherlands law. There we use conflicts of laws rules to solve our problem of authority. We do this precisely because we do recognise that Netherlands law is law. This does not apply in relation to Aboriginal customary law, since the founding myth of Australian common law was terra nullius ‘land belonging to no-one’.^[45] Although this has been overturned by the Mabo decision, the overturning is most commonly thought of purely in relation to native title. The fact that Mabo not only recognised another form of land ownership but also recognised the customary law which determined that ownership as law, is often ignored. Recognition of Aboriginal Customary Law as having its own system of authority remains alien to the common law.

In recognising the customary law as a fact and indeed even in relation to native title, the recognition of customary law by the courts has often failed to see it as a legal system with its own authority structure. Indeed, Lindsay J emphasised this when he said, extrajudicially, that the expression ‘indigenous laws, customs, traditions and practices’ ‘should be viewed not as referring to a set of positivist rules (such as found in Part 4.2 and Part 4.3 of the Succession Act ) but as referring to a general understanding, within community, of rights and obligations of an individual living, and dying, in the community.’^[46] The common law tends to see the customary law as frozen in time, rather than as a living system. For example, in Yorta Yorta^[47], Gleeson CJ, Gummow and Hayne JJ said:

[46]…the reference…to ‘traditional’ law or custom must be understood in the light of the considerations that have been mentioned. As the claimants submitted, ‘traditional’ is a word apt to refer to a means of transmission of law or custom. A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act, ‘traditional’ carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander Societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are ‘traditional’ laws and customs. ’

This is a striking example of the failure to recognise customary law. It is not seen as legitimate to consider the customary law as it has developed since the British invasion. It is frozen in time. In this case the trial judge had held that where ancestors’ bones had been stolen and put into museums, their reburial after they had been retrieved was not a traditional practice. This is not to say that judges could not conceive of the customary law as an evolving legal system. In the same case, Gaudron and Kirby JJ, dissenting, said

[The trial judge] did not consider whether the reburial practices had their origins in the past in that, for example, they had evolved out of earlier practices or constituted an adaption of earlier laws or customs, with the consequence that they had a sufficient degree of continuity with the past that they could properly be described as traditional….^[48]

Justice Lindsay’s concern about the evidence was created by both what I think is an implicit view that customary law was not equivalent to the common law, supported by his justifiable fear that the wrong approach to the evidence could create an avalanche of anthropological evidence which would cost a great deal and inhibit access to the courts. But all this ignores the fact that Indigenous customary law, like all law, has its own authority structures. This will be in the form of persons and processes recognised by the particular form of customary law. What the Australian law needs to do is learn those structures of authority so that when questions of customary law arise there is clarity about who should be consulted, who has authority to tell the court what the customary law is, and so on.

Conclusion

Australia’s treatment of the civil law needs of its Indigenous people is only just beginning. It seems to have taken the whole of the twentieth century to come to the point where the existence of the law of the oldest living culture in the world can be recognised in a practical way. So far the recognition is only in pockets. It is arguable that when it comes to areas of law which are personal law, such as family law and inheritance law, the need to accept the cultural imperatives of the relevant people is obvious. But it is not enough to merely recognise the need. It is important for the development of the Australian polity and a set of relationships across the country, across racial and cultural divides, that Indigenous customary law is recognised as law, and the appropriate sources of authority for that law are used to determine it. The changes to the NSW and Tasmanian Succession Acts are only the beginning of the process, and it seems that, despite some significant progress, the Australian judiciary has yet to completely embrace the use of customary law as law.