Australian Legal Procedures and the Protection of Secret Aboriginal Spiritual Beliefs: A Fundamental Conflict
Author(s): Ernst Willheim
The essays in this book explore the intersections between law and religion. When Australian law intersects with Aboriginal religion the outcome is a massive collision. This essay explores that collision, a collision between core legal values of the dominant legal system and core religious values of a small minority group, Aboriginal Australians. That collision, or conflict, arises because Aboriginal religions are fundamentally different from mainstream religions. That difference is legally significant. But the dominant legal system has failed to accommodate the difference. In this essay I contend that Australian law has failed to resolve a fundamental conflict between, on the one hand, basic common law values including openness and transparency in public administration, open administration of justice, a legal culture that gives special weight to the protection of private property interests and, on the other hand, Aboriginal religious values, in particular, the secret nature of much Aboriginal religious belief. I further contend that, because Australian law has failed adequately to recognize and to adapt to the secret nature of much Aboriginal religious belief, because common law values particularly principles directed at protection of private property interests prevail, laws enacted for the purpose of protecting Aboriginal religious beliefs have failed to achieve their purpose. The final part of the essay offers suggestions for reform, including mechanisms for protecting the confidentiality of secret spiritual beliefs.
Research theme: Indigenous Peoples and the Law