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219
Report on the Recognition of Aboriginal Customary Law
The Australian Law Reform Commission's Report on the Recognition of Aboriginal Customary Law was a significant, well-researched study. The Royal Commission received requests from Aboriginal people through the Aboriginal Issues Units regarding the progress in implementation of the recommendations made by the Australian Law Reform Commission and in some cases from communities which had made proposals to the Law Reform Commission. This Commission urges government to report as to the progress in dealing with this Law Reform Report.
Aboriginal Justice Caucus Assessment
Recommendation 219 was intended to encourage governments to report their progress in responding to and/or implementing recommendations from the ALRC’s Report on the Recognition of Aboriginal Customary Laws. A key recommendation of the Report was for functional recognition of Aboriginal customary laws in general Australian law.
Previous reviews noted the lack of a response to this recommendation in Victoria given its limited relevance to the Victorian context. It was unclear whether this assessment of relevancy reflected Aboriginal perspectives or simply those of Victorian government officials.
There was considerable engagement with Aboriginal organisations and community representatives in the development and establishment of Koori Courts (which have operated since 2002), however we have been unable to determine whether recommendations from the ALRC’s Report on the Recognition of Aboriginal Customary Laws were considered in this process.
We have since been involved in policy and legislative projects with the potential to ensure greater consideration of Aboriginality and cultural factors in sentencing. These will be outlined in more detail in relation to the RCIADIC recommendations that they are most relevant.
Victorian governments did not report their progress in considering or responding to the ALRC Report referred to in this recommendation. We couldn’t find evidence of initiatives in Victoria over the last 32 years prompted by reference to the Report on the Recognition of Aboriginal Customary Laws.
While Recommendation 219 has limited relevance in 2025, it remains critically important to recognise and accommodate Aboriginal cultural practices and obligations throughout all processes and procedures in the criminal legal system.
Priority for Further Work:
Low
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) noted widespread frustration with failures to implement the recommendations of the Australian Law Reform Commission’s (ALRC) Report on the Recognition of Customary Law, which was published in 1986 following several years of community consultation. The Northern Territory and Queensland Aboriginal Issues Units submitted that these recommendations should be put into effect, with a body established to implement them. The Royal Commission noted that legislation proposed in the Report had not progressed past the drafting stage at the time of its final report in 1991.
The Report favoured ‘functional recognition of Aboriginal law’ and offered the Julalikari Council Patrols and Northern Territory Aboriginal Community Justice Project as strong examples of functional recognition in action.
The RCIADIC did not discuss specific recommendations from the Report, noting that it was unable to make a thorough examination of issues related to the recognition of customary law, due to the complexity of the issues, and diversity of contexts across Australia. However, the Royal Commission recognised that the ALRC recommendations related to sentencing could have significant baring on the over-representation of Aboriginal people in prisons.
Actions Taken Since Last Review
Koori Courts
In Victoria, there was considerable engagement with Aboriginal community representatives in the development and establishment of Koori Courts (which have operated since 2002), however we have been unable to determine whether recommendations from the ALRC’s Report on the Recognition of Aboriginal Customary Laws were considered in this process.
Developed to reflect cultural issues and operate in a less formal way, in Koori Courts the accused sits at the bar table with the magistrate, Elders and Respected Persons, a Koori Court Officer, the prosecutor, community corrections officer and their lawyer and family. Aboriginal organisations may be in the courtroom to contribute to the conversation and offer support.
Everyone is encouraged to take part in a sentencing conversation by having a yarn and avoid using legal language. Aboriginal Elders or respected persons may give cultural advice to help the magistrate make a judgment that is culturally appropriate and helps reduce the likelihood of reoffending.
Koori Courts were established under the Victorian Aboriginal Justice Agreement. Burra Lotjpa Dunguludja (the fourth phase of the Agreement) included commitments to increase the number of Koori Courts across Victoria and court jurisdictions, to enhance cultural considerations and the involvement of Elders in mainstream courts and develop culturally appropriate ‘therapeutic courts’.
Considering Aboriginality in sentencing
The ALRC Pathways to Justice Report (2017) made several recommendations around sentencing and Aboriginality that sought to formalise consideration of systemic and background factors impacting on Aboriginal people. These did not speak specifically to customary law but may be seen as a mechanism to consider cultural factors relevant within local contexts.
The Pathways to Justice Report also made recommendations around accessibility of community-based sentencing options for Aboriginal people, including ensuring the cultural appropriateness of community-based sentencing options. This again speaks to a consideration of context in sentencing that may be seen as a re-incarnation of the vision of recognition of customary law that remains applicable in contemporary Victorian contexts where traditional customary law may have been interrupted, but where cultural factors remain significant.
(These matters are discussed further in relation to RCIADIC recommendations on sentencing and alternatives to imprisonment).
Treaty
In negotiating a Treaty, the Victorian Government is acknowledging that prior to the formation of the State of Victoria, Aboriginal communities were here practicing their own law, lore, and cultural authority.
Work is underway toward a treaty or treaties with Aboriginal people. Treaty is an opportunity to recognise and celebrate the unique status, rights, cultures and histories of Aboriginal people. It's an opportunity to have stronger recognition of Aboriginal culture and custom, address wrongs and redefine relationships between the State, Aboriginal and non-Aboriginal people in Victoria.
Community Views
Victorian Aboriginal Legal Service
The ALRC concluded that the recognition of Aboriginal customary laws risked being ineffective if geographically limited to particular communities. The fact that some Aboriginal customary laws ceased to be practised in a particular area did not mean that other aspects may not still be relevant. This point was made by the Victorian Aboriginal Legal Service in their submission:
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.
The ALRC concluded that the recognition of Aboriginal customary laws could take a variety of forms, and whether particular proposals could be applied depended upon the merits of the proposal and the appropriateness of its application in particular cases.