Title          : Implementing Self-Government- An Examination of the
                 Aboriginal Communities Act (Western Australia)
Author         : T. Kamien
Organisation   : Murdoch University School of Law
Keywords       : Western Australia, Aboriginal, Community, UN, 
                 Declaration, Self-Government, Self-Determination.
Abstract       : This report examines the Aboriginal Communities Act in the
                 context of the right to self-government given by article 31
                 of the Draft Declaration on the Rights of Indigenous
                 Peoples.The extent of the right given is considered. The
                 report criticises the Act in that although it has found
                 some acceptance with Aboriginal people, it has an
                 assimilationist focus, in some cases increasing
                 powerlessness felt by Aboriginal people. The report goes on
                 to suggest amendments to improve the Act.
Contact Name   : The Editors, E Law
Contact Address: Murdoch University School of Law, PO Box 1014,
               : Canning Vale, Western Australia, 6155
Contact Phone  : + 61 09 360 2976
Contact Email  : elaw-editors@csuvax1.murdoch.edu.au
Last Verified  : 4th April 1995
Last Updated   :
Creation Date  : 1st April 1995
Filename       : kamien.txt
File Size      : 52,872 bytes
File Type      : Document
File Format    : ASCII
Publication Status:  Final
COPYRIGHT POLICY:
Material appearing in E Law is accepted on the basis that the
material is the original, uncopied work of the author or 
authors. Authors agree to indemnify E Law for all damages, 
fines and costs associated with a finding of copyright  
infringement by the author or by E Law in disseminating the 
author's material.  In almost all cases material appearing in 
E Law will attract copyright protection under the Australian 
_Copyright Act 1968_ and the laws of countries which are 
member states of the _Berne Convention_, _Universal Copyright 
Convention_ or have bi-lateral copyright agreements with 
Australia.  Ownership of such copyright will vest by operation 
of law in the authors and/or E Law.  E Law and its authors 
grant a license to those accessing E Law to call up copyright 
materials onto their screens and to print out a single copy 
for their own personal non-commercial use subject to proper 
attribution of E Law and/or the authors.
ISSN: 1321-8247
EMAIL RETRIEVAL: send message "get elaw-j kamien.txt"
URL:
gopher://infolib.murdoch.edu.au:70/00/.ftp/pub/subj/law/jnl/elaw/
comment/kamien.txt
ftp://infolib.murdoch.edu.au/pub/subj/law/jnl/elaw/comment/
kamien.txt
--------------------------------------------------------------

IMPLEMENTING SELF-GOVERNMENT - AN EXAMINATION OF THE ABORIGINAL
COMMUNITIES ACT (WESTERN AUSTRALIA)

T. Kamien

1.  INTRODUCTION

With the colonisation of Australia by Britain came massive dispossession
and alienation of Aboriginal people.  As successive governments moved
through policies of pacification, protection, assimilation and
integration, the right of Aboriginal people to control their own lives, in
all aspects, was systematically denied. 

In the face of all this, and in spite of severe political, economic,
cultural and social dislocation, Aboriginal people have maintained a
vibrant and meaningful culture.  They have, throughout, sought to express
their freedom and independence. 

In the early seventies, in response to this, and to the growing
recognition of indigenous[1] rights in international law, the government
policy relating to Aboriginal people became one of self-determination. 
One initiative to come out of this climate was the Aboriginal Communities
Act 1979 (WA). 

In this essay I analyse the Aboriginal Communities Act and examine the
extent to which it meets the requirements of self-government contained in
the United Nations Draft Declaration on the Rights of Indigenous
Peoples.[2]

2.  INTERNATIONAL LAW AND THE DRAFT DECLARATION ON THE RIGHTS OF
INDIGENOUS PEOPLES

2.1.  The Development of Indigenous Rights in International Law

The requirement of self-government is emerging in the international sphere
as part of the general raised consciousness regarding indigenous peoples.
This, however, has been a gradual process. 

The International Labour Organisation has been concerned with indigenous
peoples as a group since the 1957 Indigenous and Tribal Peoples'
Convention No. 107.  At the time, this was the only international
instrument to address indigenous rights expressly.  It has since then been
viewed as unacceptably assimilationist in its policy orientation.[3]

During the next three decades, there was pressure from indigenous
organisations calling for the adoption of new legal standards aimed at
achieving the goal of self-determination.  In 1986 this Convention was
reviewed and in 1989 the new Indigenous and Tribal Peoples' Convention,
No. 169, was adopted.  While it did not meet all the aspirations of
indigenous organisations, it was a substantial improvement on ILO 107.  It
recognised indigenous peoples' separate identity and set minimum
standards.[4]

At around the same time, in the early 70's, an awareness began developing
at the United Nations of the need to properly address the indigenous
cause. Special Rapporteur, Jose Martinez Cobo[5] commenced a comprehensive
study of the problem of discrimination against indigenous populations
which lasted several years and made many recommendations. 

The Draft Declaration has emerged from this context and is an important
indication of the current international attitudes to the status of
indigenous peoples. 

2.2.  The Draft Declaration

Amidst the growing awareness of indigenous concerns, the United Nations
Economic and Social Council, in 1982, authorised the Sub-Commission on
Prevention of Discrimination and Protection of Minorities to establish the
Working Group on Indigenous Peoples[6] (WGIP).[7]

According to Sanders[8]

"The establishment of the working group was both dramatic and modest.  For
th e first time indigenous people had specific access to the United
Nations. They had their own international forum.  But the working group
had no adjudicatory powers and was at the lowest level in the system." 

Nevertheless, it is important to remember that a Declaration is the first
stage in the standard setting process and while not legally binding, it is
the first step toward the establishment of a Convention which, if
ratified, is legally binding on signatory States.[9]

The final Draft Declaration on the Rights of Indigenous Peoples was
presented to the Sub-Commission on Prevention of Discrimination and
Protection of Minorities on 23 August 1993.[10]

Article 31 proclaims a general right of indigenous peoples to
self-government.  It states that: 

"Indigenous peoples, as a specific form of exercising their right to
self-determination, have the right to autonomy or self-government in
matters relating to their internal or local affairs, including culture,
religion, education, information, media, health, housing, employment,
social welfare, economic activities, land and resource management,
environment and entry by non-members, as well as ways and means for
financing these autonomous functions."[11]

The Draft Declaration is important because it reflects a realisation that
the collective rights of the world's indigenous peoples require special
recognition.  It is justified on the basis of their unique identity and is
necessary to the preservation of that identity.[12] The Declaration sets
vital minimum standards, which, though not currently legally binding,
affect Australia's human rights obligations and international
standing.[13]

2.3.  Self-government:  What Does it Mean? 

Currently, Australian Governments promote a policy of self-determination,
not self-government.  There are significant ideological differences
informing these policies as they are construed by the Australian
Government. 

Self-determination as a government policy aims at providing Aboriginal
people with a measure of independence from European Australians and
entitling them to retain their racial identity, their languages, customs
and distinct lifestyles.[14] Self-government, on the other hand, implies
autonomy with a devolution of selected powers from Governments to local
communities.  It acknowledges that Aboriginal people have Constitutional
interests which they themselves should represent in negotiation with
Government.[15] Self-government, however, does not have a clear
definition.  It is a continuing process which evolves over time in
accordance with local needs and regional aspirations.[16]

In the context of the Draft Declaration, however, self-government is
construed as one aspect of self-determination.  This has a broader meaning
than that given by Australian Government policy.  In this context,
self-determination means, 'the right of non-self-governing peoples to
choose freely and democratically between independence and some degree of
legally entrenched autonomy within a federal state or association of
states'.[17] The concept of self-determination in international law
'encompasses a right to regain sovereignty or powers of self-government
lost to colonial or other dominant nations'.[18]

Article 1 of the International Covenant on Civil and Political Rights[19]
states that '[a]ll peoples have the right to self-determination.  By
virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural developments'. 

Dodson[20] states, however, that; 

"[t]he Commonwealth policy of self-determination is not based on the
recognition of any inherent right of Aboriginal ... people to freely
determine [their] political status and economic, social and cultural
development.  Such decision-making power as is exercised under the policy
is based on a delegation of power from the supreme political power of the
Australian State.  Fundamentally, the power to make decisions relating to
Aboriginal ... economic, social and cultural development is given to
indigenous Australians as a matter of mere administrative
arrangement."[21]

Essentially, autonomy and the protection of human rights against
government interference and abuses depends entirely on who governs. 
However, Australian Governments are opposed to anything that resembles
separatism, which is viewed as threatening to the notion of a united,
homogenous Australia. 

In the following section, I examine whether the Aboriginal Communities Act
1979 meets the standard of self-government set in Article 31 of the Draft
Declaration. Given Australian Governmental policy, it is likely that it
does not. 

3.  ABORIGINAL COMMUNITIES ACT 1979 (WA)

3.1.  Background

The Aboriginal Communities Act arose out of work performed by Magistrate
Terry Syddall in the 1970's.  Mr Syddall was concerned at the high number
of Aboriginal people appearing before the courts and had also formed the
view that the degree of understanding of Aboriginal people of the Court
system was minimal.[22]

>From January 1971 he invited Aboriginal people to sit with him in court
and advise him on relevant matters.  The purpose of this was to reduce
apparent injustices by involving Aboriginal people in the administration
of the court.[23] This proved to be an effective move and in 1977 Mr
Syddall was commissioned by the Attorney-General to conduct research on
Aboriginal people and the law. The focus of this was the development of
greater understanding and harmony between Aborigines and non-Aborigines. 

Out of this arose the Justice of the Peace scheme.  Mr Syddall suggested
that Aboriginal Justices of the Peace be appointed from the elders of the
communities, with young educated bench clerks being trained to do the
reading and the writing for the Justices.[24] The scheme was to provide an
alternative method of applying law and order in Aboriginal communities
whilst enabling them to retain a separate traditional reality.  This was
to be achieved through a community justice system based on the wider
Australian Court model, incorporating Aboriginal personnel and in which
sentences could limitedly embody Aboriginal concepts of punishment.[25]

After much consultation, Mr Syddall concluded that Aboriginal people
wanted to make their own laws and appoint police aides to establish peace
in their communities.  As such, he also recommended the appointment of
rangers and probation officers to ensure the supervision of orders.[26]

Eventually, '[f]ollowing prolonged discussions with [Mr Syddall], the
Attorney-General and his government colleagues concluded that legislation
be passed to permit Aboriginal communities to make rules to apply within
community lands'.[27] The framework in which this scheme was to operate
was the Aboriginal Communities Act 1979. 

So, it is clear that the Act was never intended to embody self-government.
Its scope is narrow and it implements a foreign system in these
communities. 

3.2.  Contemporary Situation [28]

3.2.1.  Scope of the Act

The Act makes provision for independent and responsible management of
judicial matters in Aboriginal communities which have been proclaimed
pursuant to the Act. Under the Act, councils have the authority to make
and enforce by-laws on community land.[29] A by-law can only be made by an
absolute majority of all council members and only applies within community
boundaries.  All persons are bound by the by-laws whether they belong to
the community or not, or whether they are Aboriginal or
non-Aboriginal.[30]

Under section 7(1) of the Act, specific by-laws can be made to cover the
following areas: 

*The regulation of admission of people and traffic.
*Regulation for control of traffic.
*Preventing damage to flora and fauna.
*The use, safety and preservation of buildings.
*Regulations governing noise, conduct and keeping the peace.
*Restricting possession, use or supply of alcohol and other substances.
*Regulation of the possession of and use of firearms or other weapons.
* Regulation of litter and rubbish dumping.
*Regulations for securing public order.

The Act, at its inception, applied to two Aboriginal communities.[31]
Curre ntly, 29 Aboriginal communities in Western Australia have community
by-laws under this Act.[32] Essentially, the Act can apply to any
incorporated Aboriginal Community that the Governor, on the advice of the
Minister, declares by proclamation to be a community to which the Act
applies.[33] There is also a provision for the Governor by proclamation to
declare that a Community is no longer covered by the Act.[34] So, the
Governor has wide powers in relation to who may, or may not, be covered by
the Act.  Further, section 8(3) states that '[i]f the Minister is
satisfied that the by-laws are necessary and desirable he shall submit
them to the Governor for his approval'.  Here also, the Government has the
last say and the implication is that there is a suspicion that communities
may not make just and sensible by-laws. 

The preamble to the Act is expressed in broad terms, namely 'an Act to
assist certain Aboriginal communities to manage and control their
community lands and for related purposes'. The current scope of the Act,
however, is limited by the provision for by-laws concerning a limited set
of everyday matters and, further, only those relating to issues of law and
order, or criminal justice administration on community lands. 

That self-government applies to all areas of life is fundamental to the
notion itself and is an important aspect of the Draft Declaration.[35]
According to McCallum, '[g]iven the Act's current preamble, there is
arguably enormous scope for the Act to empower Aboriginal communities in a
variety of arenas other than the administration of limited criminal
justice on community lands'.[36] The limited scope of the Act is critical
to the determination that the Act does not meet the standard of
self-government set by the Draft Declaration. 

Further, even if the context of investigation is narrowed and an
assessment is made as to whether the Act meets the standard of
self-government solely in relation to criminal justice matters, it is
clear that there are a number of issues which pose a serious impediment to
the Act being a basis for self-government.  These issues are examined in
the following section. 

3.3.  Enforcement

3.3.1.  Sanctions

The Act presently only provides for fines, imprisonment and compensation
as sanctions.  The current maximum fine available under by-laws is
$100,[37] compensation to the community is available up to $250{38} and
imprisonment up to a maximum of 3 months.[39] Fines are paid to the
community Council for the use of the community. Other sentencing
alternatives are also used, including good behaviour bonds, probation and
community service orders.[40] It was originally contemplated that other
sanctions of a community-based nature could be invoked through other
mainstream legal methods such as by making them conditions to orders of
probation.[41] The sanctions currently available do not really empower
Aboriginal communities to adequately control the social environment of the
community. 

3.3.2.  Justices of the Peace

The Aboriginal Justice of the Peace scheme has developed serious
difficulties.  This is mainly due to the fact that the cultural
differences between Aboriginal and non-Aboriginal society have not been
fully taken into account in the implementation of the scheme and conflict
has been a result. Many Justices have indicated that it is very difficult
to live among a people as one of them in one respect and as the dispenser
of a foreign legal system in another.[42]

According to Hoddinott[43] Aboriginal JP's feel they are paying lip
service to a system which limits their options when sanctioning.[44] As
elders of their communities JP's have indicated they are losing
credibility because they are associated with a legal system which cannot
command respect.  This conflict is undermining the effectiveness of both
Aboriginal and non-Aboriginal justice systems.[45]

Hoddinott[46] states that community courts seldom sit unless the
Magistrate is in attendance.'Some justices have been involved with the
justice of the peace scheme since 1980.  Many justices have indicated that
they are dissatisfied with the degree of autonomy they have when the court
is in session.  There is a lot of resentment and an increasing sense of
impotency because they feel they are still advisers to the court'.[47]

There are also problems with Justices of the Peace imposing gaol sentences
in view of the Royal Commission into Aboriginal Deaths in Custody
recommendations about the abolition of Justices of the Peace.[48] The
Commission recommended the phasing out of the use of Justices of the Peace
in the Criminal Jurisdiction, yet the scheme under the Act fosters the use
of Justices of the Peace to dispense justice and impose penalties
(including imprisonment) within Aboriginal Communities.[49]

3.3.3.  Wardens

The original intention at the time of passage of the Act was for the
enforcement of by-laws to be vested in the hands of wardens appointed from
the communities. Wardens (or rangers) were to have 'enforced community
rules, arrested offenders and prosecuted by-law breaches'.[50] This,
however, was not pursued.  Section 7(2) of the Act empowers only members
of the police force to enforce and take proceedings for breaches of the
by-laws. Unfortunately, this does not address the reality that most
Aboriginal communities simply do not have access to frequent Police
support.  Police patrols to some communities are as infrequent as every
eight to ten weeks. The level of Police support available is the greatest
impediment to the enforcement of community by-laws.[51]

McCallum[52] states that 'overall, the community by-laws are not being
enforced to their full potential and in some cases not at all'.  However,
it must be stressed that this is not due to lack of interest or enthusiasm
on the part of the communities.  According to King[53] 'The communities
... wish to appoint community members as wardens to assist the police in
the enforcement of the by-laws, however, community members and councillors
are not able to implement or enforce their by-laws adequately, as they
lack the legislative power under the current terms of the Act to enforce
by-laws. 

Despite not coming within the scope of the Act, there have been instances
of communities' appointing and utilising wardens.  According to Dodson
[54] '[t]here is now a situation in at least one community whereby
unofficial wardens are inflicting 'tribal' punishment for offences against
the By-laws, and the offenders against the Act are seeking legal redress
for assault.  These 'wardens' were allegedly armed with handcuffs, spears,
batons and were 'overdoing' their job'.  The credibility of the community
is undermined if attempts have been made to enforce by-laws independently
of the police, only to be warned that their efforts are illegal and
actionable. 

The State being the only avenue for enforcing the by-laws is the
antithesis of self-government.  The whole issue of the status and the role
of wardens remains totally unresolved. 

3.4.  Customary Law

The Act never purported to be a recognition of Traditional law.
Structurally, it was from the beginning an extension into local
communities of the general court system, with certain adjustments and with
the addition of local personnel.  Yet Customary law remains a significant
force in many Aboriginal communities.[55]

The conflict in value systems is compounded when Aboriginal justices are
torn between the two laws, tribal law and the Aboriginal Communities Act
...  [T]here are problems deciding which offence is applicable to which
law ...  Tribal laws are either being ignored or undermined by an alien
value system.  Further, Aboriginal justices feel they are becoming
powerless both within their own law, and within the framework of the
Aboriginal Communities Act.[56]

The Act contains no reference to Customary law as a matter which may be
prescribed under by-laws nor to the application of Customary law to the
punishment of offences under General law.[57] In this sense, the Act may
be viewed as assimilationist in its underlying philosophy in that it
transplants into Aboriginal communities thevalues and authority system of
Australian law. 

A further problem, relating to Traditional law, is that the Act, by
imposing, non-Aboriginal structures upon these communities fails to take
into account problems associated with kinship structures.  Certain
responsibilities to family members may positively or negatively affect
determinations of punishment under by-laws depending on which kin group
the Justice of the Peace belongs to. 

The failure to recognise the degree of commitment which tribal Aborigines
have to their Law has been a principal flaw in the working of the Act.
Provision for Aborigines to practice their own Customary law should have
been incorporated.[58] Inherent in the notion of self-government is the
freedom for Aboriginal people to identify and define the most appropriate
legal regime for their communities, whatever that may be. 

3.5.  Community Perceptions

Perceptions of the utility of the Act are mixed.  It allows communities,
albeit limitedly, to make their own rules regarding the conduct of affairs
within the community and enables enforcement of those by-laws to take
place within the community structures.[59]

It is also true to say that there continues to be considerable interest in
the Act by most communities.  Yu[60] states that communities under the Act
are 'wholeheartedly in favour of the maintenance of the community justice
system' and further that '[t]he communities currently operating under the
Act see the Community Justice System as being intrinsically part of the
development of community consciousness and responsibility in matters
relating to justice and harmony within the community.  They believe this
to be the basis for the successful operation and functioning of their
community as a whole'.[61]

Aboriginal people wish to control crime and disorder within their
communities and some clearly see By-laws as providing the forum in which
to address this issue.[62] McCallum[63] states that 'the Act is seen to
have enormous potential for achieving self-determination and
self-management[64], particularly in relation to the administration of
criminal justice on community lands'. 

This situation may be a result of the fact that Aboriginal people are
fully aware that, being dominant, non-Aboriginal cultural values will
necessarily impinge of their lives.  In the face of this, the wish may be
to retain as much control as possible over their social environment. 

Fundamental to the current operation and enforcement of the Community
Justice Programme is the issue of general community understanding of the
contents, meaning and significance of the by-laws. McCallum [65] states
that it was evident that many community members lacked any real
understanding of the by-laws. Similarly, according to Unkovich, 'no
Community has thus-far ever fully comprehended how the scheme is meant to
work and what the ramifications are for their people'.[66]

The Act is not based on Traditional law and social structures, the
relevant by-laws are conceptualised and framed in English using technical
legal terminology and legal proceeding take place in English.  As such, it
is seen to be remote from Aboriginal reality.  Hoddinott[67] maintains
that 'Aborigines are being pressured into a conflict situation when they
are expected to dispense a foreign law in a foreign language'. 

4.  DISCUSSION

The Act is very much an imposition of Western legal ideologies and
practices upon Aboriginal communities.  It is not really an expression of
Aboriginal people's inherent right to self-government as a specific form
their right to self-determination as detailed by the Draft Declaration. 

By-law powers are really only one aspect of local autonomy.  It is
possible for this type of scheme to be broad in scope.  However, in
Western Australia under the Act, by-law making power is strictly
circumscribed. True local autonomy or self-government involves a much
broader range of issues than is currently provided for under the Act. 
Further, if Aboriginal communities are granted true self-government the
decision as to what laws would apply within the community would be
determined by the community.[68]

Having European law administered to Aboriginal people by Aboriginal people
is an improvement on having it administered by non-Aboriginal people.  It
is, however, in no way self-government.  This type of arrangement
perpetuates an assimilationist ideology.  The argument may be raised that
it is not forced as the communities concerned have a choice whether or not
to participate. However, until there is a range of options available for
Aboriginal communities to decide how best to manage their own social
environment, this choice, and consequently the notion of self-government,
remains illusory. 

Interestingly, at around the same time as the Act was implemented,
Tatz[69] wrote,

"[s]ocial history demonstrated one feature ... that white society
unilaterally defines the problems, prescribes the policy dicta, enacts the
legislation, creates the administrative machinery and determines the
nature, content, personnel and flavour of remedial programmes."

This is true of the Aboriginal Communities Act.  If self-government is to
be experienced as a right, non-Aboriginal people and governments need to
understand and concede that a major avenue for Aboriginal people's
survival and progress is their rejection of the values of non-Aboriginal
society and the programmes it mounts for their benefit.  To achieve this,
I believe that it is necessary to cede power, authority, responsibility
and accountability to Aboriginal communities. 

As Dodson [70] states,

"it could be said [that the Act] has never been taken seriously.  Apart
from some individual Magistrates, no-one has seriously acknowledged,
enhanced or sponsored the legitimate right of Aboriginal people to develop
self-management legal process programmes for their own communities.
Arguably, increasing numbers of communities being drawn into the
Aboriginal Communities Act are still suffering the same problem." 

In the next section I examine proposals for amending the legislation to
overcome these problems. 

5.  FUTURE PROPOSALS

Since its inception in 1979, the Act has not been amended despite several
reports recommending comprehensive changes between 1982 and 1992.[71] Many
of the recommendations for legislative change in these reports are the
same. 

Suggested amendments to the Act which have been identified as necessary to
improve the scheme are as follows:[72]

*Give proper powers to community wardens.[73]

This requires amending the Act to provide for: the appointment of wardens
by communities, defining the scope of their powers and their immunities. 

Hedges recommends that the Act be extended to empower communities to
appoint wardens who should be authorised to search premises, vehicles and
personal belongings, to confiscate prohibited goods and to prosecute
offenders.[74]

It has been proposed [75] that powers of wardens should include: the
imposition of on-the-spot fines, the impounding of vehicles, the
confiscation of alcohol and weapons, powers to search premises, vehicles
or personal belongings and overnight detention for adult offenders. 

*Provide a wider range of options to deal with people who break the
by-laws.[76]

This includes increasing fines as a more effective deterrent, introducing
community-based sanctions, implementing mediation procedures and extending
the sanction options to include aspects of customary law.[77]

*Give power to communities to make by-laws on a wider range of issues
(such as health and town planning).'[78]

*Appoint Administrators so that legal formalities do not restrict
implementation of the Act.[79]

It was envisaged that the Administrator could: co-ordinate consultations;
co-ordinate introduction of legislation; minimise delays; monitor
effectiveness and co-ordinate development of programmes.[80]

*Implementation of educational programmes for Justices of the Peace, other
officers of the court and members of the communities generally.[81]

Programmes for court officers should include the scope of the by-laws and
the processes of the court.  Programmes for the community should include
explanation of the content, meaning, operation and significance of
by-laws. Further, the language of by-laws should be simplified or
translated into the appropriate Aboriginal language.[82]

Proposed amendments to the Act are to be welcomed if they give more
control to Aboriginal communities.  I believe, however, that the
fundamental premise of the Act, that of the imposition of the wider
Australian legal system, is antithesis to the notion of self-government
espoused in the Draft Declaration. The paradigm of the Act remains, and
would remain, assimilationist.  If certain communities feel that the Act
embodies the scheme most suitable to their community then they should be
free to seek proclamation.  However, if self-government as stated by the
Draft Declaration is what is sought, mere cosmetic amendments to the Act
will not achieve this. 

With amendments, the Act may become an aspect of self-government. For true
self-government, however, the Act would need to be substantially changed
or another system, much broader in scope and divulging more power to
Aboriginal people would need to be enacted. Self-government implies a real
choice about the kind of system to be operating in these communities, not
the choice between the scheme under the Aboriginal Communities Act or the
current wider legal system. 

In view of this, I believe that the amendments proposed by Hoddinott would
best meet the standard set by the Draft Declaration.  Hoddinott[83]
provides two alternative options for amending the Act: 

1) Amend the Aboriginal Communities Act to encourage the use of tribal
Law. The Aboriginal Communities Act should make the use of tribal Law the
norm with the JP Scheme as an optional avenue of arbitration. 

Within this framework Aboriginal JP's should have the option of using
either tribal sanctions or those prescribed by the Act. 

If the first option is considered too radical it is suggested that; 

2) The Aboriginal Communities Act be rewritten to include provision for
tribal Law and, allow the operation of the Act to follow traditional
arbitration methods with greater autonomy for Aboriginal JP's. 

Given the content of Article 31 of the Draft Declaration, option one is to
be preferred.[84] If this fundamental change does not occur, the Act will
remain tangential to the underlying question of autonomy. 

6.  CONCLUSION

The By-laws Scheme relies upon the support of the Aboriginal communities
for its effectiveness.  Nevertheless it is an imposed system with ultimate
governmental control.  It is, in its current form, a welfare measure
directed at Aboriginal people.  Although its intention is honourable, it
is still a decision by the Western Australian government about Aboriginal
people.  While it is clear that Aboriginal people are welcoming the
application of the Act to their communities, it could be said to be a case
of taking the only available option for some form of control in certain
aspects of community life.  If the Act is to meet the standard of
self-government set by Article 31 of the Draft Declaration, many changes
are needed.  The Act has a relatively long history, has been applied to
many Aboriginal communities, and is welcomed by them. As such I believe
that the most constructive option would be initially to build upon the
foundations already laid and amend the Act along the lines suggested by
Hoddinott.  For control that is more than token self-government, however,
a power shift and an ideological change is needed in this State. 

This is a concept that is frightening to the wider Australian population
and to Governments.  Until that day arrives, however, Australia cannot be
said to be fulfilling its international human rights obligations with
respect to Aboriginal Australians. 

REFERENCES

Aboriginal Communities Act (1979) Interdepartmental Task Force, Proposals
for Implementation of Recommendations Arising from Reviews, Aboriginal
Affairs Planning Authority, June 1993. 

Australian Law Reform Commission, The Recognition of Aboriginal Customary
Laws, Australian Government Publishing Service, Canberra, vol. 1 and 2,
1986. 

Barsh, R. 'Aboriginal rights, Human rights, and international law'.
Australian Aboriginal Studies, No 2, 1984, pp. 2-9. 

Barsh, R. 'An Advocate's Guide to the Convention on Indigenous and Tribal
Peoples'.  Oklahoma City University Law Review, vol. 15, 1990.  Rpt. in L
364: Aboriginal Legal Rights: Reader.  Murdoch university, Murdoch, 1993,
pp. 411-424. 

'By-laws - What is Happening?', Newsletter of the Aboriginal Affairs
Planning Authority, Aboriginal Affairs Planning Authority, Perth, February
1994, p. 3. 

'Communities Act:  The way to go', Newsletter of the Aboriginal Affairs
Planning Authority, Aboriginal Affairs Planning Authority, Perth, February
1994, p. 1. 

Daes, E. 'On the Relations Between Indigenous Peoples and States'.  In
Without Prejudice: The EAFORD International Review of Racial
Discrimination, International Organisation for the Elimination of All
Forms of Racial Discrimination, vol. 2, no. 2, 1990, pp. 441-52. 

Department of Foreign Affairs and Trade.  Human Rights Manual. Australian
Government Publishing Service, Canberra, 1993. 

Dodson, M.  Aboriginal and Torres Strait Islander Social Justice
Commission, First Report, Australian Government Publishing Service,
Canberra, 1993. 

Dodson, P. Royal Commission into Aboriginal Deaths in Custody:  Regional
Report of Inquiry into Underlying Issues in Western Australia, vol. 1,
Australian Government Publishing Service, Canberra, 1991. 

Draft Declaration on the Rights of Indigenous Peoples, Report of the UN
Working Group on Indigenous Peoples on its Eleventh Session, UN Doc. no.
E/CN.4/ Sub. 2/ 1993/29. 

Fleras, A. and J.L. Elliot, The Nations Within: Aboriginal-State Relations
in Canada, the United States and New Zealand, Oxford University Press,
Toronto, 1992. 

Hedges, J. Community Justices Systems and Alcohol Control: 
Recommendations Relating to the Aboriginal Communities Act and Dry Area
Legislation in Western Australia, A Report for the Minister with Special
Responsibility for Aboriginal Affairs, March 1986. 

Hoddinott, A. That's 'Gardia' Business:  An evaluation of the Aboriginal
Justice of the Peace Scheme in Western Australia, 1985. 

Hoddinott, A. 'Aboriginal Justices of the Peace and 'Public Law'', In K.
Hazlehurst (ed), Justice Programs for Aboriginal and Other Indigenous
Communities:  Aboriginal Criminal Justice Workshop No. 1, Seminar
Proceedings No. 7, Australian Institute of Criminology, Canberra, May
1985, pp. 173-186. 

Huntsman, C. 'Experiencing the United Nations: A Perspective From an
Indigenous Peoples' Organisation.  Aboriginal Law Bulletin, vol. 2, no. 4,
October, 1989, pp. 7-8,14. 

International Covenant on Civil and Political Rights 999 UNTS 171, 6 ILM
368 (1967). 

Iorns, C. 'The Draft Declaration on the Rights of Indigenous Peoples'.
Aboriginal Law Bulletin, vol. 3, no. 64, October 1993, pp. 4-5. 

Jull, P. The Future of Federalism and Indigenous Peoples in Australia and
Canada, Unpublished manuscript, Northern Australian Research Unit, Darwin,
1990. 

King, 'Aboriginal Communities Act: By-laws or Bygone?', A Paper presented
to the Aboriginal Legal Service of WA Inc.  Solicitors' Conference, Perth,
December 1989. 

Martinez Cobo, J. 'Study of the Problem of Discrimination Against
Indigenous People' Arizona Journal of Comparative and International Law,
vol. 8, no. 2, Fall 1991.  Rpt. in L364:  Aboriginal Legal Rights: Reader.
Murdoch University, Murdoch, 1994, pp. 24-36. 

McCallum, A. 'Review of the Aboriginal Communities Act 1979 (WA)', A Final
Report to the Aboriginal Affairs Planning Authority on the Review of the
Aboriginal Communities Act 1979 as it Applies in the Kimberley Region of
Western Australia, vol. 1, 1992. 

Nettheim, G. ' "The Consent of the Natives": Mabo and Indigenous Political
Rights'.  Sydney Law Review, vol. 15, no. 2, June 1993, pp. 223-247. 

Rowse, T.  Remote Possibilities:  The Aboriginal Domain and the
Administrative Imagination, North Australia Research Unit, Australian
National University, Canberra, 1992. 

Sanders, D. 'The UN Working Group on Indigenous Populations'.  Human
Rights Quarterly, vol. 11, 1989, pp. 406-433. 

Syddall, T. 'Aboriginals and the Courts I and II'.  In K. Hazlehurst (ed),
Justice Programs for Aboriginal and Other Indigenous Communities:
Aboriginal Criminal Justice Workshop No. 1, Seminar Proceedings, No. 7,
Australian Institute of Criminology, Canberra, May 1985, pp. 157-172. 

Tatz, C. Aborigines: political options and strategies.  In R.M. Berndt
(ed), Aborigines and Change:  Australia in the '70s, Australian Institute
of Aboriginal Studies, Canberra, 1977, pp. 384-401. 

Unkovich, J. Aboriginal Community Justice - Unresolved Issues in the
Operation of the Community Justice Scheme in the Kimberleys, Aboriginal
Legal Service of Western Australia Inc., 1993. 

Yu, P. Report on Consultation with Communities in Response to The Hedges
Report, prepared on behalf of the Mamabulanjin Resource Centre, Broome WA,
July 1987. 

NOTES

[1] The term 'indigenous peoples' has been defined as; 'indigenous
communities, peoples and nations ... which have a historical continuity
with pre-invasion and pre-colonial societies that developed on their
territories, consider themselves distinct from other sectors of the
societies now prevailing in those territories, or parts of them.  They
form at present non-dominant sectors of society and are determined to
preserve, develop and transmit to future generations their ancestral
territories, and their ethnic identity, as the basis of their continued
existence as peoples, in accordance with their own cultural patterns,
social institutions and legal systems (J. Martinez Cobo, 'Study of the
Problem of Discrimination Against Indigenous People' Arizona Journal of
Comparative and International Law, vol. 8, no. 2, Fall 1991.  Rpt. in
L364:  Aboriginal Legal Rights: Reader.  Murdoch University, Murdoch,
1994, p. 35.)

[2] Draft Declaration on the Rights of Indigenous Peoples, Report of the
UN Working Group on Indigenous Peoples on its Eleventh Session, UN Doc.
no. E/CN.4/ Sub. 2/ 1993/29. 

[3] R. Barsh, 'An Advocate's Guide to the Convention on Indigenous and
Tribal Peoples'.  Oklahoma City University Law Review, vol. 15, 1990. 
Rpt. in L 364: Aboriginal Legal Rights: Reader.  Murdoch university,
Murdoch, 1993, p. 411. 

[4] R. Barsh, ibid, p. 412. 

[5] Supra note 1, p. 24. 

[6] This was originally named the Working Group on Indigenous Populations. 
It was renamed the Working Group on Indigenous Peoples in 1988 because the
term 'peoples' is linked with the right of self-determination, while the
term 'populations' is more detached from this right (E. Daes, 'On the
Relations Between Indigenous Peoples and States'. In Without Prejudice:
The EAFORD International Review of Racial Discrimination, International
Organisation for the Elimination of All Forms of Racial Discrimination,
vol. 2, no. 2, 1990, p. 43.)

[7] D. Sanders, 'The UN Working Group on Indigenous Populations'.  Human
Rights Quarterly, vol. 11, 1989, p. 407. 

[8] D. Sanders, ibid, p. 407. 

[9] C. Huntsman, 'Experiencing the United Nations: A Perspective From an
Indigenous Peoples' Organisation.  Aboriginal Law Bulletin, vol. 2, no. 4,
October 1989, p. 7. 

[10] C. Iorns, 'The Draft Declaration on the Rights of Indigenous
Peoples'.  Aboriginal Law Bulletin, vol. 3, no. 64, October 1993, p. 4. 

[11] It is important to note that there was concern expressed by
indigenous peoples that this special emphasis was an attempt to limit the
general right of self-determination (expressed in Article 3) to
self-government, thus excluding any form of external self-determination.
Iorns (ibid, p. 4), states, however, that '[t]he position of the WGIP is
that the grammar makes it clear that it is not meant to be a limitation of
the right of self-determination ... [rather], self-government is only one
option or form of the exercise of the right of self-determination'. 

[12] M. Dodson, Aboriginal and Torres Strait Islander Social Justice
Commission, First Report, Australian Government Publishing Service,
Canberra, 1993, p. 9. 

[13] To be binding on Australia the Draft Declaration must follow an
arduous and lengthy path.  It must be approved by the General Assembly,
established as a Convention, ratified by the Australian Government and
finally be implemented as domestic legislation.  For a discussion of how
international law becomes Australian law see Department of Foreign Affairs
and Trade.  Human Rights Manual, Australian Government Publishing Service,
Canberra, 1993, pp. 31-34. 

[14] T. Rowse, Remote Possibilities:  The Aboriginal Domain and the
Administrative Imagination, North Australia Research Unit, Australian
National University, Canberra, 1992, p. 2. 

[15] P. Jull, The Future of Federalism and Indigenous Peoples in Australia
and Canada, Unpublished manuscript, Northern Australian Research Unit,
Darwin, 1990, p. 16. 

[16] A. Fleras and J.L. Elliot, The Nations Within: Aboriginal-State
Relations in Canada, the United States and New Zealand, Oxford University
Press, Toronto, 1992, p. 5. 

[17] R. Barsh, 'Aboriginal rights, Human rights, and international law'.
Australian Aboriginal Studies, No 2, 1984, p. 3. 

[18] G. Nettheim, ' "The Consent of the Natives": Mabo and Indigenous
Political Rights'.  Sydney Law Review, vol. 15, no. 2, June 1993, p. 232. 

[19] 999 UNTS 171, 6 ILM 368 (1967). 

[20] Supra note 12, p. 42. 

[21] There are many issues surrounding the debate on self-determination,
they are complex and beyond the scope of this essay. 

[22] T. Syddall, 'Aboriginals and the Courts I and II'.  In K. Hazlehurst
(ed), Justice Programs for Aboriginal and Other Indigenous Communities:
Aboriginal Criminal Justice Workshop No. 1, Seminar Proceedings, No. 7,
Australian Institute of Criminology, Canberra, May 1985, p. 158. 

[23] T. Syddall, ibid, p. 160-161. 

[24] T. Syddall, supra note 22, p. 163. 

[25] J. Hedges, Community Justices Systems and Alcohol Control:
Recommendations Relating to the Aboriginal Communities Act and Dry Area
Legislation in Western Australia, A Report for the Minister with Special
Responsibility for Aboriginal Affairs, March 1986, p. 2. 

[26] T. Syddall, supra note 22, p. 169.  The recommendation regarding
rangers, however, was not included in the legislation. 

[27] T. Syddall, supra note 22, p. 165-168. 

[28] Although the by-laws operate somewhat differently in each community,
the issues that I discuss apply to all communities. 

[29] Section 6(1) of the Act defines community lands as '... the lands
declared by the Governor by proclamation to be the community lands of that
community'.  For some communities defined community lands extend only to
the administration and residential areas.  This is not a very satisfactory
situation and would narrow the scope and effectiveness of the by-laws
considerably. 

[30] A. Hoddinott, 'Aboriginal Justices of the Peace and 'Public Law'', In
K. Hazlehurst (ed), Justice Programs for Aboriginal and Other Indigenous
Communities:  Aboriginal Criminal Justice Workshop No. 1, Seminar
Proceedings No. 7, Australian Institute of Criminology, Canberra, May
1985, p. 175.  Community by-laws, though, do not have the authority to
override other statutory provisions, such as, the Police Act and the
Criminal Code (P. Dodson, Royal Commission into Aboriginal Deaths in
Custody:  Regional Report of Inquiry into Underlying Issues in Western
Australia, vol. 1, Australian Government Publishing Service, Canberra,
1991, p. 456). 

[31] These were the Bidyadanga Aboriginal Community - La Grange
Incorporated and the Bardi Aborigines Association Incorporated (section
4(1)(a)). 

[32] 'Communities Act:  The way to go', Newsletter of the Aboriginal
Affairs Planning Authority, Aboriginal Affairs Planning Authority, Perth,
February 1994, p. 1. 

[33] Section 4(1)(b).  There are often long delays for a community wishing
to be proclaimed under the Act.  Sometimes a community's application for
proclamation can take up to two or even three years to be completed.  The
procedure where by Aboriginal Communities are proclaimed remains unwieldy
and promotes delays (P. Dodson, supra note 30, p. 465). 

[34] Section 5(1). 

[35] For example, it is important that Aboriginal communities have control
over issues regarding inter alia health, housing, education and social
welfare.  Perhaps of greatest importance, issues of self-government are
necessarily tied to the issue of land tenure or land rights.  Without
this, true self-government cannot be realised. 

[36] A. McCallum, 'Review of the Aboriginal Communities Act 1979 (WA)', A
Final Report to the Aboriginal Affairs Planning Authority on the Review of
the Aboriginal Communities Act 1979 as it Applies in the Kimberley Region
of Western Australia, vol. 1, 1992, p. 97. 

[37] Section 7(2)(d). 

[38] Section 7(2)(e). 

[39] Section 7(2)(d). 

[40] M. King. 'Aboriginal Communities Act: By-laws or Bygone?', A Paper
presented to the Aboriginal Legal Service of WA Inc.  Solicitors'
Conference, Perth, December 1989,
 p. 6. 

[41] 'Aboriginal Communities Act (1979) Interdepartmental Task Force:
Proposals for Implementation of Recommendations Arising from Reviews'.
Aboriginal Affairs Planning Authority, June 1993, p. 2. 

[42] A. Hoddinott, supra note 30, p. 176-177. 

[43] A. Hoddinott, That's 'Gardia' Business:  An evaluation of the
Aboriginal Justice of the Peace Scheme in Western Australia, 1985, p. 36. 

[44] Aboriginal Justices of the Peace are appointed pursuant to the
Justices Act 1902. 'As such, their jurisdiction extends beyond hearing
prosecutions made pursuant to the Aboriginal Communities Act.
Theoretically, they are therefore not limited to imposing the penalties as
prescribed in the Aboriginal Communities Act.  However, in practice, the
Justices who have been appointed in the communities have acted only in
relation to breaches of by-laws and have penalised convicted "offenders"
in terms of the Act's prescribed penalties' (McCallum, supra note 36, p.
11). 

[45] A. Hoddinott, supra note, 43, p. 1. 

[46] A. Hoddinott, supra note 43, p. 34. 

[47] A, Hoddinott, supra note 30, p. 177. 

[48] P. Dodson, supra note 30, p. 470. 

[49] J. Unkovich, Aboriginal Community Justice - Unresolved Issues in the
Operation of the Community Justice Scheme in the Kimberleys, Aboriginal
Legal Service of Western Australia Inc., 1993, p. 9-10. 

[50] J. Hedges, supra note 25, p. 52. 

[51] McCallum, supra note 36, p. 9-10. 

[52] Supra note 36, p. 7. 

[53] M. King, supra note 40, p.8. 

[54] P. Dodson, supra note 30, p. 461. 

[55] J. Unkovich, supra note 49, p. 6. 

[56] A. Hoddinott, supra note 30, p. 176-177. 

[57] Item 17 of the community by-laws, however, does make a limited
provision for customary law.  It states that 'it is a defence to a
complaint of an offence against these by-laws to show that a defendant was
acting under and excused by any custom of the community'. This clause
appears in all by-laws except the Ngaanyatjarra Council by-laws (P.
Dodson, supra note 30, p. 458). 

[58] A. Hoddinott, supra note 43, p. 29. It must be noted that this is not
a simple proposition.  Customary law is a nebulous and far reaching
concept.  Determinations about Aboriginal Customary law by non-Aboriginal
people must be made extremely carefully. 

[59] M. King, supra note 40, p. 10. 

[60] P. Yu, Report on Consultation with Communities in Response to The
Hedges Report, prepared on behalf of the Mamabulanjin Resource Centre,
Broome WA, July 1987, p. 16. 

[61] P. Yu, ibid, p. 20. 

[62] P. Dodson, supra note 30, p. 471.  It should be noted that, according
to McCallum (supra note 36, p. 17) that 'alcohol abuse is still unarguably
the greatest cause of community unrest and division.  It is the major
reason for communities seeking to come under the terms of the Act and
being empowered to enact by-laws in the first place'. 

[63] Supra note 36, p. 2. 

[64] Self-management refers to efficient administration, while
self-determination implies control over policy and decision making. 
Little difference, however, can be seen in the implementation of these
policies in Australia (T. Rowse, supra note 14, p. 91). 

[65] A.Mc Callum, supra note 36, p. 27. 

[66] J. Unkovich, supra note 49, p. 6. 

[67] A. Hoddinott, supra note 43, p. 27. 

[68] Australian Law Reform Commission, The Recognition of Aboriginal
Customary Laws, Australian Government Publishing Service, Canberra, vol.
1, 1986, p. 76. 

[69] C. Tatz, 'Aborigines: political options and strategies.  In R.M.
Berndt (ed), Aborigines and Change:  Australia in the '70s, Australian
Institute of Aboriginal Studies, Canberra, 1977, p. 384. 

[70] P. Dodson, supra note 30, p. 460-461. 

[71] A. Hoddinott, supra note 43; J. Hedges, supra note 25;  A. McCallum,
supra note 36. 

[72] Unkovich (supra note 49, p. 6) maintains that 'it was only after the
completion of the Macallum (sic) Report in 1992 that Government ...
announced proposed legislative changes to the Act.  Where those changes
are now is anybody's guess'. 

[73] J. Hedges, supra note 25, p. 52; A. McCallum, supra note 36, p. 69. 

[74] Supra note 25, p. 53. 

[75] Aboriginal Communities Act (1979) Interdepartmental Task Force, supra
note 41, p. 4. 

[76] J. Hedges, supra note 25, p. 55-57; A. McCallum, supra note 36, p.
72. 

[77] A. Hoddinott, supra note 43, p. 39 ; J. Hedges, supra note 25, p. 47. 

[78] 'By-laws - What is Happening?', Newsletter of the Aboriginal Affairs
Planning Authority, Aboriginal Affairs Planning Authority, Perth, February
1994, p. 3. 

[79] J. Hedges, supra note 25, p. 59. 

[80] J. Hedges, supra note 25, p. 59.  Once again, however, this is power
vested in someone other than the community concerned. 

[81] A. Hoddinott, supra note 43, p. 39; J. Hedges, supra note 25, p. 48;
A. McCallum, supra note 36, p. 71, 75. 

[82] A. McCallum, supra note 36, p. 75. 

[83] A. Hoddinott, supra note 43, p. 39. 

[84] For an extensive examination of the relationship between Aboriginal
Customary law and the wider Australian legal system see Australian Law
Reform Commission, The Recognition of Aboriginal Customary Laws, vols. 1
and 2, Australian Government Publishing Service, Canberra, 1986.