In most states and territories of Australia, if a person dies without a will a family member or any other person over the age of 18 years can apply to the Court for letters of administration of the estate.1 This enables relatives or other concerned persons to undertake the final acts of management in respect of the deceased’s property and possessions. This is so regardless of the deceased person’s ethnicity or race. In Western Australia, however, intestate estates of Aboriginal persons automatically vest in the Public Trustee.2
Arts Law believes the singling out of Aboriginal estates for different treatment breaches the provisions of the federal Racial Discrimination Act in that ‘by reason …of a provision of, a law of …a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin.’3
In some Australian jurisdictions, efforts have been made to effect the distribution of Indigenous intestate estates in accordance with customary or tribal rules as to kinship and family.4 Although some attempt is made in the Aboriginal Affairs Planning Authority Act (WA) to recognise family structures other than the traditional white European model, those attempts embody long outdated patriarchal notions of family and entitlement at odds with accepted Aboriginal views and practices.5 For example, assuming no marriage under the Marriage Act 1961 (Cth), an Indigenous intestate male’s estate in Western Australia must be divided equally between his traditional law spouse and the children of that relationship. In contrast, the estate of an Indigenous intestate female goes solely to her traditional law husband irrespective of the existence of any children. If there are no children or spouse at customary law, then the estate goes first to ‘a male person of Aboriginal descent who according to the social structure of the tribe to which he or she belonged was [the deceased’s] father’ and if no father, only then to the person identified under tribal law as the deceased’s mother. Beyond accepting a notion of tribal marriage in those limited circumstances, traditional law plays no role.
As observed by Prue Vines in the Indigenous Law Bulletin in 2001:
If no children, spouse or parents of the deceased survive (an even more limited class of relatives than that under the usual intestacy regime), the estate is to be held in trust for the benefit of Aboriginal people in general. The Public Trustee is entitled to a fee for this service. The real effect of this regime … is to remove control over intestate property from Aboriginal next-of-kin to government officials.6
In 2006, the Western Australian Law Reform Commission concluded that the laws relating to Indigenous intestacy required amendment.7 Its report recommended:
- that the offensive definition of ‘a person of Aboriginal descent’ be repealed;
- that the discriminatory provision automatically vesting intestate Aboriginal estates in the Public Trustee be repealed; and
- that spouses and children of traditional Aboriginal marriages be recognised as spouses and children for all purposes of the administration of deceased estates.
Arts Law supports and endorses the recommendations of the WALRC. The Western Australian government is currently preparing a package of family provision reforms to be introduced later this year which we understand will incorporate some at least of the recommendations of the WALRC in relation to the administration of deceased Aboriginal estates. The proposed reforms are yet to be approved by Cabinet but we believe they will include the repeal of the provisions automatically vesting intestate estates of Indigenous people in the Public Trustee. As far as we know, it is not proposed that the reforms will extend to the general recognition of tribal family relationships and customary law marriage in the administration of estates.
Artists in the Black is lobbying for changes to the laws of Western Australia to ensure fair treatment for Indigenous Australians in a manner that respects and recognises traditional Aboriginal social structures and family relationships.
Delwyn Everard is a senior solicitor at Arts Law.
1Administration Act 1903 (Cth), section 25.
2Aboriginal Affairs Planning Authority Act 1972 (WA), section 35.
3Racial Discrimination Act 1975 (Cth), section 10.
4Administration And Probate Act (NT), division 4a.
5Aboriginal Affairs Planning Authority Act Regulations 1972 (WA), regulation 9.
6Wills as Shields and Spears: The Failure of Intestacy Law and the Need for Wills for Customary Law Purposes in Australia,  ILB 80
7WALRC Report No 94, Aboriginal Customary Laws.