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Recognising that all persons in Western Australia are subject to and protected by this State’s legal system; and there may be a need to recognise the existence of, and take into account within this legal system, Aboriginal customary laws:
The Law Reform Commission of Western Australia is to enquire into and report upon Aboriginal customary laws in Western Australia other than in relation to Native Title and matters addressed under the Aboriginal Heritage Act 1972 (WA).
Particular reference will be given to:
- how those laws are ascertained, recognised, made, applied and altered in Western Australia;
- who is bound by those laws and how they cease to be bound; and
- whether those laws should be recognised and given effect to; and, if so, to what extent, in what manner and on what basis, and in particular whether:
- the laws of Western Australia should give express recognition to Aboriginal customary laws, cultures and practices in the administration or enforcement of Western Australian law;
- the practices and procedures of the Western Australian courts should be modified to recognise Aboriginal customary laws;
- the laws of Western Australia relating to the enforcement of criminal or civil law should be amended to recognise Aboriginal customary laws; and
- whether other provisions should be made for the identification and application of Aboriginal customary laws.
For the purposes of carrying out this inquiry, the Commission is to have regard to:
- matters of Aboriginal customary law falling within state legislative jurisdiction including matters performing the function of or corresponding to criminal law (including domestic violence); civil law (including personal property law, contractual arrangements and torts); local government law; the law of domestic relations; inheritance law; law relating to spiritual matters; and the laws of evidence and procedure;
- relevant Commonwealth legislation and international obligations;
- relevant Aboriginal culture, spiritual, sacred and gender concerns and sensitivities;
- the views, aspirations and welfare of Aboriginal persons in Western Australia.
Peter Foss QC MLC
2 December 2000
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