Aboriginal customary law, intestacy, and the challenges of justice

States and territories have taken various measures, some more successfully than others, but by and large, there remains a mystery around what Aboriginal customary laws are, and their value within the legal system.

LSJ spoke to Prue Vines, a Professor at the Faculty of Law at UNSW, regarding intestacy legislation as a prime example of where common law has failed to recognise and cater to traditional Aboriginal and Torres Strait Islander lines of family, kinship and ownership of property. It is an issue close to Vines’ heart. She was born and raised in Papua New Guinea until the age of 13, where she observed the widespread acceptance of customary law, and she has an adopted Aboriginal brother.

The broadness and diversity of customary laws between Aboriginal and Torres Strait Islander groups around the nation must be acknowledged, she says.

“There’s a great range in customary laws across the country, from people living almost entirely according to customary law, which is a small group now, to the majority of Aboriginal people in Australia living in more urban environments. Living in the suburbs has resulted in limits to the recognition and engagement with customary systems, which is partially owing to the removal of children and the inability to pass things on, but also living in urban society means different ways of doing things.”

In 2009 NSW amended its intestacy legislation to allow Indigenous customary law to be used where the deceased died intestate, but over a decade on, Indigenous customary law is still a grey zone. The Succession Amendment (Intestacy) Act 2009 No 29 (NSW) operates to ensure a deceased’s estate goes to parties beyond the traditional line of succession. Sections 133 to 135 specifically address Indigenous estates.

Myths and misunderstandings 

Typically, the only times the public is aware of Aboriginal customary laws is when traditional practices conflict with new legislation (in regard to child adoption, fishing, fire management, or intestacy) or when land rights are being contested. This is unfortunate, since it reinforces the idea that Aboriginal customary laws are an impediment to the existing legal system, rather than providing a system that could influence – or coexist with – the formal legal system.

Vines says the differing legislation between states and territories means there is great variation in the common law regarding Aboriginal and Torres Strait Islanders’ intestacy. For that reason, she advises that greater effort into encouraging Aboriginal and Torres Strait Islander communities to embrace wills as a means of ensuring their property and commodities are passed on according to their wishes, in alignment with common law.

It is imperative to encourage willmaking explains Vines, since the majority of Aboriginal people die intestate which means there is greater vulnerability for their families and communities depending on the intestacy laws that apply in their state or territory. According to a Legal Aid NSW report in 2008, the Aboriginal will-making rate was then estimated at approximately two to six percent.

The third edition of Vines’ “Aboriginal Wills Handbook” was published in 2019, and it is freely available as a PDF on the NSW Trustee & Guardian website, with the proviso that it is primarily written for NSW based lawyers and Aboriginal and Torres Strait Islander clients.

In the foreword, Professor Megan Davis, Pro Vice-Chancellor Indigenous UNSW and a Professor of Law at UNSW Law, writes, “This book is about empowering Aboriginal communities and individuals. Taking control of our lives in regard to drafting a will is a concrete example of self-determination: exercising the right to make decisions about our economic, social and cultural destiny.”

Kinship principles and self-determination in common law

In a speech at the National Indigenous Legal Conference in 2006, Tom Calma – then Aboriginal and Torres Strait Islander Social Justice Commissioner – emphasised the necessity of recognising and integrating Aboriginal customary law as fundamental to enabling Indigenous Australians to “take charge of our own destinies”. He said, “a legal system must reflect the people it serves if it is to gain their confidence, and Indigenous Australians want greater confidence in the legal system.”

In the final report resulting from the Royal Commission into Aboriginal Deaths in Custody, published in April 1991, it was stated:

“We require a fundamental shift in the mindset of governments and Indigenous communities.  This shift is from an approach that seeks to manage Indigenous disadvantage and dysfunction, to an approach that supports and builds functional communities.”

Calma argued the upholding of traditional laws would give a sense of control back to Indigenous communities where there is a distinct feeling that they have been silenced, marginalised or unfairly targeted by legislation they had no part in formulating. He also iterated that Aboriginal and Torres Strait Islander customary laws are not uniform across all groups Australia-wide, nor is it fixed and unchanging.

In reference to the ALRC Report 31, Calma said the recommendations have elicited “neither comprehensive responses nor implementation at the federal level” despite the NSW Law Reform commission praising the report and its thorough explanations of how customary law can be recognised within the current common law.

Calma referred to the primary role kinship plays in property, ownership and family. Many of the understandings that are fundamental to Indigenous communities are in conflict with common laws, which has only recently been addressed in relation to intestancy laws.

He ended his speech by saying, “We need to be in the business of moving the customary law dialogue from a simplistic and superficial analysis of two legal systems at odds, by taking a well-informed message out to the world that presents an accurate view of Indigenous knowledge systems and systems of law and justice. There are ways in which these systems can co-exist.”

Intestacy laws fail Aboriginal and Torres Strait Islander people

Common law in Australia is very much centred upon the nuclear family and bloodlines as being the basis for inheritance. Adoption is only recognised if official paperwork is provided. This narrow legal definition of inheritance and family has proven fundamentally unjust to Aboriginal and Torres Strait Islanders for generations. As Vines points out, traditional intestacy laws typically ignore collateral relatives.

“Customary law tells you who’s in your family, which is something I’ve become very aware of in my work in succession in particular. Superannuation, wills and formal contracts can conflict with customary laws,” she says.

“Presently, the only aspect of legislation in Australia where there’s really comprehensive recognition of customary law and kinship is in the law of intestacy. Customary law does sometimes get taken into account in sentencing, depending on the situation of the defendant, as well as in determining damages. For example, in the case of Napaluma v Baker [in 1982], an Indigenous man in the Northern Territory who had suffered brain damage resulting from a car accident was awarded extra damages for the fact that he would no longer be able to become an elder.”

Vines is cognisant of the concept of a double punishment, whereby Aboriginal and Torres Strait Islander defendants may be sentenced according to common law, while still being subject to the requirements of customary laws once they return to their community.

She says, “There is the problem that a community might expect a formal process that may be a physical punishment, while common law cannot condone that sort of sentencing. Judges know that in sending someone to jail, there may be a double punishment in that the community may still attempt to carry out justice on the individual once they return to the community.”

Circle sentencing and the role of local courts

In NSW, circle sentencing has an option for eligible First Nations adult offenders who are guilty of an offence in the Local Court since 2002. It was expanded to operate in 20 Local Courts in 2022, from an initial 12. In addition to the presiding Local Court Magistrate, the offender is sentenced by Aboriginal and Torres Strait Islander community members, the offender’s family, and relevant victims. The circle includes the offender and their lawyer, the presiding Magistrate, the prosecutor, the Program Officer, and at least three Aboriginal persons belonging to the offender’s community or kinship group (usually made up of four elders).

A sentence, which is governed by Part 7 of the Criminal Procedure Regulation 2017 (NSW) is reached in collaborative discussion and might range from a conditional release order or a community correction order, imprisonment, or an intensive correction order. The program has routinely indicated lower recidivism and incarceration as a result of the culturally sensitive approach to justice.

Wagga Wagga Local Court introduced Circle Sentencing in late 2022, and Magistrate Rebecca Hosking told the ABC that the collaborative process was promising.

“In the circle process, we have much more time and information to delve into these and develop a sentence that’s structured, with a view to managing and dealing with some of these underlying issues,” she said.

NT takes a leaf from NSW success

A similar approach to Circle Sentencing has newly been adopted on Groote Eylandt, nearly two years since the Northern Territory’s Aboriginal Justice Agreement was signed. The first Community Court and local Law and Justice Group has been established. Like the NSW approach, offenders are eligible for the community court where they have plead guilty to a local court offence and have been referred by a judge.

NT Attorney General Chansey Paech told ABC News, “Every consequence that is being delivered through this program is in line with international human rights declarations and making sure that we have the appropriate sentences in place. This is an opportunity to include Aboriginal voices and solutions to change the justice system, to reduce the overcapacity of people in our correctional centres.”

Additionally, and likely because NT jails are at capacity, an alternative to custody facility ‘The Healing Centre’ is due to open this year after delays to construction. The $13 million centre will be available to men aged 17 to 25, with an additional $11 million budgeted for operational funding. It follows the success of NT’s women’s-only Life Skills Camp in Alice Springs, which – like Circle Sentencing – has shown evidence of reducing recidivism.

Nearly 30 years since changes were recommended

In 1988, the ALRC made recommendations that have only been introduced at scale in NSW in the last decade. The ALRC Report 31 in 1988 recommended:

• As far as possible, Aboriginal customary laws should be recognised by existing judicial and administrative authorities, avoiding the creation of new and separate legal structures, unless the need for these is clearly demonstrated.
• The recognition of Aboriginal customary laws should be carried out by means of federal legislation applicable in all States and Territories, relying on the full range of the Commonwealth’s constitutional powers.
• Government and Indigenous groups should work together to decide on the methods by which Indigenous customary laws are recognised.

The ALRC also recommended greater police sensitivity towards Aboriginal and Torres Strait Islander peoples in custody, insofar as recognising their right to silence and the voluntary nature of admissions without undue pressure.

Further, it was recommended that Aboriginal Legal Services could play a stronger role in the legal system than purely operating as an advisory service. The Royal Commission into Aboriginal Deaths in Custody in 1991 recommended as much, but in April 2023 the Aboriginal Legal Service (ALS) of NSW/ACT stated, “Demand for our services has almost doubled since 2018 but our core Federal Government funding has decreased in real terms. This means we are being pushed harder than ever before… Right now, our teams are stretched and without an emergency support package from government we are unable to continue the fight for community at the current pace.”

ALS NSW/ACT CEO Karly Warner said the subsequent $21 million injection from the Federal Government in May was a “good start … but it’s simply not enough”.