Legislating traditional decision-making: An approach to legal plurality in Australia

Abstract

The Commonwealth of Australia, at times, recognises Indigenous laws. This recognition is principally achieved through statute law, with over 150 such statutes existing across the Australian federation. The existing scholarship on the recognition of Indigenous laws in Australia, though, largely overlooks the particular role of statute law in these endeavours, and the involvement of Indigenous peoples in using these statutes. Prolifically using statute law in the context of limited scholarship raises the questions - how and how well does the Commonwealth use statute law to recognise Indigenous laws? Focusing on the Commonwealth's institutional practices of drafting, interpreting, and administering statute law, this thesis answers these questions in three parts.

The first part of this thesis develops a framework to describe and evaluate the Commonwealth's recognition of Indigenous laws. Advancing an understanding of legal plurality in Australia, this framework develops and defines the concept of "recognition". This framework also develops standards - drawing on concepts of dialogue and group autonomy - to evaluate the Commonwealth's use of statute law to recognise Indigenous laws. The concepts underpinning this framework seek to be cognisable to, and consistent with, Commonwealth law whilst pursuing the aspirations of Indigenous peoples.

The second part of this thesis applies this framework to a series of case studies involving statutes that deal with a particular body of Indigenous law - being Indigenous laws on group decision-making (otherwise known as traditional decision-making). Adopting a case study approach serves as a basis for a more general and widespread understanding of how Australian State legal orders engage with Indigenous legal orders. The framework is applied to the Commonwealth's drafting, interpretation, and administration of provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and the Native Title Act 1993 (Cth) that deal with Indigenous laws on group decision-making. The Canadian Indian Act, RSC 1985 cI-5, is also explored to draw comparisons with the Commonwealth's statutory practices. Through these case studies, this thesis illustrates that the Commonwealth adopts inconsistent approaches to using statute law to recognise the same body of Indigenous law. In some instances, Commonwealth officers and institutions are sensitive to the nuances and complexities of engaging with Indigenous legal orders, forming dialogues with Indigenous peoples on their laws. In other instances, those officers and institutions seek to govern the operation of the recognised laws.

This thesis concludes, in its third part, with a toolkit to improve the drafting, interpretation, and administration of statutes that recognise Indigenous laws. The toolkit, grounded in pluralist and deferential approaches, seeks to facilitate greater dialogues between the Commonwealth and Indigenous peoples about their laws. Show more