LWA113 Customary Law

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LWA113 Customary Law

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LWA113 Customary Law

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Course Code: LWA113
University: Charles Darwin University

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Country: Australia

Discuss about the Recognition of Aboriginal Law for Customary Law.

The Aboriginal law of Australia is the customary law of Australia which is comprised of those customs which are being practiced by the Aboriginal societies of Australia for a very long time. These laws govern the human conduct and command punishments for its contravention.
The Aboriginal law is different from the Australian law as the former governs all the aspects of the life of Aboriginal people while the common law system of Australia does not governs people on all the aspects of life for example their personal laws which cover marriage and divorce laws. The conflict between the two laws sometimes makes the people from the Aboriginal community to make a decision which results in contravention of either of the two laws.[1] However, gradually the laws of all Aboriginal communities have been altered such that in case of conflict between the two laws the common law of prevails. The Australian legal system identifies Aboriginal laws but does not gives them importance over the common law of Australia.
Notwithstanding the recognition given to the existence of customary law in Australia, people of Indigenous community are restricted to argue the common law cases, due to a number of legal complications. Not much reliance is laid on Aboriginal law in Australian courts because the common law only recognizes its existence.
The Aboriginal law is the tradition of Indigenous people of the Northern Territory and is an important source from which they derive their rights and duties.[2] The question of acknowledgment of the Aboriginal law is in debate in the Northern Territory since a very long time. In the Northern Territory, certain legislations and courts have mentioned customary laws where such law is expedient in recognizing relationships or societal expectations.
In 1897 the Aboriginal Protection and Restriction of the Sale of Opium Act was enacted. The Act gave powers to the Minister to remove, detain and relocate the aboriginal people to reserves and gave permission the Minister to make additional guidelines to control the acts of the aboriginal people. Police was also given power to bestow “retributive justice” to the people of Aboriginal community. The consequences of the enactment of this statute was that many people of Indigenous communities died while conflicting with the police.
At this point the government thought that the Indigenous community was headed for disappearance, and announced measures to segregate the Indigenous community from the society at large. The government took charge for Indigenous people, compelling them to live on specially designated reserves for Aboriginal community. The policy of the government soon shifted from protection of Indigenous people to their integration into non-indigenous communities.
The Indigenous communities are the original owner of the territory. The State is the stranger. International morality recommends a guest should respect the host. These communities have been exposed to racial discrimination all over the world, and even today they continue to be discriminated.[3]
The principles of human rights require the State to respect the rights of traditional communities. The seeds of the spirit for protecting the rights of traditional communities are inherent in the theory of natural rights.[4]
Article 27 of the Universal Declaration of Human Rights gives right to every human being to take part freely in the cultural rites of the community to which he belongs and to enjoy its arts and share the scientific developments and its benefits.
The International Covenant on Economic, Social and Cultural Rights, 1966 gives recognition to the inherent dignity and equal and non- transferrable rights of all human beings.
The legal systems of the Northern Territory or the Commonwealth of Australia may be recommended to implement the following model in order to recognize the Aboriginal law into the Australian legal system[5]. These recommendations will provide freedom of traditional and cultural rights of the people of Indigenous community as customary law being a part of tradition should be respected and recognized as a moral commitment of the society.
The government may introduce statutory provisions and guidelines that would enable governmental agencies and courts to consider the Aboriginal law in the exercise of their discretions as per the requirement of their circumstances. Further the Aboriginal people may be encouraged to participate in the decision making process relating matters connected to their lives. The government should develop law and justice plans that recognize the aboriginal customary law to deal with issues related to the community and enhance the implementation of the Australian law within the community. The government should adopt policies that would ensure that the general law of the Northern territory administers justice in respect of matters dealing with the rights and obligations of the Aboriginal people under the traditional law.
Efforts should be made for learning the customary laws so that justice can be attained in cases involving matters related to people of Aboriginal community.
The Aboriginal customary law of Australia has its own importance and people of Australia should be full of pride about that fact. The Aboriginal people have different customs than the non-Aboriginals but they fall under the same common law system. The only reason behind the suppression of the customary laws is the non-acceptance and of not showing mutual respect and mutual understanding of different customs. The statutes and the precedents do not confirm with the customary laws. The conflicts arise because they do not want to understand each other. Measures need to be taken to remove the ambiguity between the two different laws which come from different backgrounds and not by ignoring each other.[6]
Further the courts should have the obligation to consider certain issues, viz., the background of the accused and the nature of the offence while deciding the punishment. This also includes giving regard to the Indigenous customary law in cases involving Indigenous offenders. Conflicts arise when Indigenous offenders commit certain acts that are permissible under customary laws, but prohibited under the common law. Like in the case of Hales v Jamilmira[7] where the offender, an Indigenous male, was convicted for committing unlawful sexual intercourse with a 15 year old girl. He argued that he was acting under the Indigenous customary law. The judges confirmed the illegality of the act of the offender under common law.
In Walker v The State of New South Wales, [8] the High Court of Australia was of the view that even if an assumption is made that the customary criminal law of the people of Aboriginal community survived British settlement, it was abolished by the passage of criminal legislations which were for the general application.
From the observation and analysis made above it can be concluded that the historical relationship existing between people of Indigenous community and the common law system of Australia, the people of Indigenous community lack access to redressal of their issues. The continuous discrimination in access to right to approach courts has placed the people of Indigenous community as people of second class not having equal civil and political rights. This has long-term consequences, which may be seen in a lack of familiarity, of access or trust in legal remedies to their problems.
Reference List:
Altman, Jon, and Sue Jackson. ‘Indigenous land and sea management.’ Ten commitments revisited: securing Australia’s future environment. CSIRO Publishing, Canberra (2014): 207-216.
Danial Kelly, The Black and White of Wunungmurra, (2012) 2 NTLJ 227 .
David Moore, “Unfriendly terms in court: Aboriginal languages and interpreting in the Northern Territory.” Indigenous Law Bulletin 8.12 (2014): 8-10.
Hales v Jamilmira, (2003) NTLR 14.
Ida Bagus Wyasa Putra and Danial Kelly, The existence of traditional community in the modern state and the global world: The experience of Indonesia in governing its traditional community. (2017)
James Gurrwanngu Gaykamangu, Ngarra law: Aboriginal customary law from Arnhem Land, (2012) 2 NTLJ 246.
Walker v The State of New South Wales, (1994) HCA 64.

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