Customary Criminal Law Of The Aboriginal Peoples example essay topic

Aboriginal customary law and European law have been at odds since the first years of the European invasion, but only recently has the clash come into the open. Stuart MacMillan of the Aboriginal Resource and Development Services in the Northern Territory says that remote Aboriginal communities there and in Western Australia, South Australia and Queensland see no reason why they should submit to 'white fella law'. The governments of the Northern Territory and Western Australia are investigating how indigenous law can be incorporated into state law. Chris Sidoti of the Human Rights Council of Australia says: 'Some people would say that human rights runs opposite to Aboriginal law, others that it provides a universal standard to which other legal traditions must adapt. Customary law can't remain immutable.

The problem for those trying to bring the two systems into line is that human rights law derives from a western legal tradition which frequently contradicts Aboriginal law. Colin McDonald, a Darwin barrister and expert in customary law, says that on such issues Australia's legal system may simply have to bite the bullet and go against the norms of international human rights. Aboriginal women have often claimed that the law has been slanted to support the rights of indigenous men over women. Lowitja O'Donoghue, who formerly chaired the government's Aboriginal affairs body ATSIC, believes that Australian law should be more aggressive in such cases. Some aspects of Aboriginal law are falling out of practice.

Chris Sidoti believes that whatever balance is struck will be as distinct from traditional European law as it is from traditional Aboriginal law. 'For traditional people, being put in jail is more inhuman than spearing, and any unified law would have to recognise that. Aboriginal Customary Law The High Court did, however, conclude in that case (a conclusion confirmed in WA vs. Commonwealth, Wororra Peoples vs. WA and Teddy Biljabu and others vs. WA, High Court, March 16 1995) that some Aboriginal land law (that which attracted the status of 'native title') survived the colonisation process. What is far less certain is the fate of Aboriginal customary laws that were not concerned with title to land.

Did traditional laws on subjects such as family relationships, title to goods, community justice mechanisms, inheritance and criminal law survive colonisation? If native title survived, why didn't other property law? Why didn't any traditional laws retain their credence? One can conclude with confidence that colonisers had little regard for indigenous law. Recognition must be given... to the existence (and survival) of customary law. As Australian society examines socially just ways of dealing with its indigenous peoples, and as Aboriginal and Torres Strait Islander peoples continue to demand the right of more culturally appropriate responses, the importance of customary law cannot be underestimated (Social Justice Commissioner, 1995: |P 31).

In 1992 the Commonwealth, in implementing recommendation 219 of the Royal Commission into Aboriginal Deaths in Custody Report (Royal Commission into Aboriginal Deaths in Custody, 1991), requested a further report be prepared which outlined the Commonwealth government's progress on the recognition of customary law since a 1986 Australian Law Reform Commission report (infra). Aboriginal defendants, the court confirmed, were subject to the law of New South Wales whether or not both victim and offender were Aborigines and whether or not they were to be subject to traditional law as well. This case confirmed some older legal precedents. For almost two hundred years the Australian courts did not recognise customary law at all.

Be that as it may, the general law gave scant regard to customs, rites and traditions of Australia's indigenous peoples. In the landmark land rights decision, Milirrpum vs. Nab alco Pty Ltd and the Commonwealth (1971) 17 FLR 141 Justice Blackburn of the Northern Territory Supreme Court decided that there had been a system of law in existence in Australian Aboriginal societies in 1788. The impetus provided by the case of Sydney Williams in South Australia is crucial to the later deliberations of the Australian Law Reform Commission and to the story of the recognition of customary law generally. Not coincidentally, in February 1977, the Australian Law Reform Commission was commissioned to determine The A LRC concluded that codification is not an appropriate form of recognition of customary law, nor is the exclusion of the general law desirable. The Walker Case member of the Bandjalung people and son of the poet the late Oodgeroo Noonuccal, Walker claimed that Australian parliaments did not have the power to make laws for Aboriginal Australians without their consent. There was no analogy, the former Chief Justice said, between an underlying native title and criminal law.

Customary criminal law had been extinguished by general criminal statutes. the aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. This case is not an authority, however, for the proposition that no case will recognise customary law. There have been a number of cases (in addition to the Williams case above), where customary law and practice has been applied, albeit in an ad how fashion, in the Australian legal system. There is quite a difference, too, between acknowledging traditional practices and granting customary law a status equal to that of the common law applying generally. Legislating for Customary Law There is, of course, no constitutional difficulty for Australian parliaments in legislating for customary law at State or federal level. The cornerstone is the Aboriginal and Torres Strait Islander Protection Act (Cth) 1984, available to applicants where State or Territory law is inadequate. an Aboriginal who has entered into a relationship with another Aboriginal that is recognised as traditional marriage by the community or group to which either Aboriginal belongs is married to the other Aboriginal and all relationships shall be determined accordingly.

Why Recognise Customary Law? There have been a number of reasons advanced for the recognition of some customary law in the Australian legal framework. Aboriginal and Torres Strait Islander customary law shall be recognised and applied to the extent that it continues to be traditionally practised by indigenous people provided that such application by the courts shall be reasonable and in accordance with Australia's international obligations. More overt recognition of customary law (by legislation or by a Mabo-style challenge to the High Court to gain common law recognition) would, it is said, deg. help bring Australia into line with our international undertakings under several UN human rights conventions and covenants. 2 There are at least three covenants that could apply to official recognition of some aspects of customary or traditional law. deg. help bring into play a reduction of contact between the criminal justice system and Aboriginal people.

It is recognised that Aboriginal customary law, in so far as it applies in remote areas, needs customization and acceptance so it may be utilised in AIDS prevention methods. deg. There are different customary regions in Australia. deg. There will be some circumstances where customary law may offend other human rights and the laws based upon those rights. For example, what if customary law allows women to be beaten if they observe men's secrets? What if customary law permitted capital punishment, notwithstanding its abolition in every jurisdiction in Australia (Raffaele, 1994: 20)? What if customary law allows children to be married at an age less than the age prescribed in Australian law?

It has been said that close analysis of customary laws (where that be possible) threatens the integrity of those laws. Some Aboriginal groups claim that any analysis of customary law by outsiders has the potential to destroy not only the laws but the self-management principles currently espoused by policy-makers. In each case the question will require a detailed factual investigation about the nature of traditional law and custom and the history of observance of the law and custom. It is also made contentious by the challenge to customary law from its own practitioners. According to the evidence before Commissioner Elliott Johnston, Aboriginal law is 'hard work' (Royal Commission into Aboriginal Deaths in Custody, 1991: 361, Brennan, 1993: 250). Should the criminal law recognise a customary offence even if it is not a general law offence (e.g. calling out the names of the dead), or ignore a customary offence notwithstanding that it is a breach of the general law (e.g. private 'payback' assaults)?

Should general law and customary law sentencing practices be distinct and different, or indeed cumulative? The Future of Customary Law as Separate Law Even in 1986, the Australian Law Reform Commission did not advocate a system where customary laws operated to the exclusion of the general law, nor did they suggest codification of customary law. Recognition of customary law is designed, in the end, for the cohesion of the Australian nation. Stated in descending order of significance, those claims are for the recognition of Aboriginal sovereignty, the right of the Aboriginal peoples to self-determination and the recognition of Aboriginal law.

The claim that sovereignty resides in the Aboriginal peoples has been rejected by the High Court. 1 However, in some quarters it is still argued that it should be recognised that the Aboriginal peoples are sovereign, or ought to be granted sovereignty, at least in some parts of Australia. I doubt however that such support extends to claims to the recognition of Aboriginal sovereignty. There was no similar reason to regard the Aboriginal peoples of Australia as a domestic dependent nation. That question need not be discussed, for if Aboriginal sovereignty did exist it has been extinguished. Overlapping these claims -- and giving more reason for concern -- is the assertion that the Aboriginal peoples are entitled to the right of self-determination.

The right of all peoples to self-determination has been recognised by international conventions. An argument now advanced is that the right of self-determination should also be exercise able by peoples living within the framework of an existing nation or state, and thus by the Aboriginal peoples of Australia. Just as any attempt to put the Aboriginal peoples outside the Australian nation must be firmly opposed, so should any attempt to grant Statehood, or any degree of autonomy, to any particular group of the Aboriginal peoples. The Aboriginal peoples and Torres Strait Islanders now comprise about two per cent of the total population; the number has increased in recent years since more people of mixed descent now claim to be Aboriginal. Many of these Aboriginal peoples live in urban areas; only a minority live under tribal conditions.

Others dwell in country towns or in Aboriginal communities where traditional laws and customs have little or no place. The argument that Aboriginals were not subject to the ordinary criminal law was raised early in the 19th Century and accepted by one or two quixotic judges, but the contrary position was established by a decision in 1836.6 However, not unnaturally Mabo 7 raised new hopes that the existence of Aboriginal law should be recognised. In that case it was said that the native title which the Court there held to exist had its origin in the laws and customs of the Aboriginal peoples, and that its nature and incidents must be ascertained by reference to those laws and customs. Thus, it has been argued that the Court had recognised that the traditional laws and customs of the Aboriginal peoples continued to be preserved and recognised by the law. It was accordingly held that if the customary criminal law of the Aboriginal peoples survived British settlement, it has been extinguished by criminal statutes of general application. It is most unlikely that it would be held that, except in relation to native title, any of the tribal laws of the Aboriginal peoples has survived the overriding effect of the general statute law.

Nevertheless it is still argued that Aboriginals should be subject to their own traditional laws, and not to 'white fella law' as it is derogative ly called. The essential principle that all people are equal before the law does not mean that the law must treat all people alike. It would be wrong to place all the members of the disparate class constituted by the Aboriginal peoples in a separate situation under the law. It is involved in the rule of law that rights and obligations are derived from the law that covers the whole community, and the notion that special classes of society should have laws of their own belongs to an early and outmoded stage of legal development. The members of the Aboriginal race, like all other people in Australia, are entitled to the protection which our law gives to human rights and fundamental freedoms, and it is not necessary in order to secure to those peoples the equal enjoyment of human rights and fundamental freedoms that they should be governed by their own traditional customary law. Serious difficulties of a practical kind would arise if it were sought to apply Aboriginal customary laws to persons of the Aboriginal race.

The customary laws were not uniform amongst all the groups or clans into which the Aboriginal peoples were divided, although no doubt the different customs had common characteristics. Some of the Aboriginal customary laws would be quite unacceptable in a modern society. Traditional marriage laws enabled a man to have several wives. There are persons practising a religion whose members elsewhere are governed by religious laws. Moreover, some Aboriginal customary laws are secret. Further, much of Aboriginal customary law would be so inappropriate to the situation of those Aboriginal people who now live in cities and towns that it would be demeaning and unjust to subject them to it against their will.

One suggestion that has been made is that Aboriginal customary law should be applied when all parties, being Aboriginal persons, consent. The truth is that if Aboriginal customary law were to be given recognition, the whole body of that law could not be recognised, but selection and modification would be necessary, and those laws which were to be applied could not be made applicable to all of the Aboriginal peoples but only to some. It would not be inconsistent with the principle of equality before the law that, where members of the Aboriginal race have special needs, those should be recognised by special rules laid down by the law. Further, the law is flexible enough to allow the courts to consider the special situation of an Aboriginal party where that is relevant.

As the courts have recognised, the sentencing of Aboriginal offenders presents particular difficulties. Judges, in an attempt to do justice in discharging the difficult role of sentencing tribal and semi-tribal Aboriginal persons, have gone further. Clearly the ordinary criminal law is capable of facing these difficulties. It is neither necessary, nor desirable, to apply to the Aboriginal peoples the rules of their customary law rather than the general law.

The attempt to uphold Aboriginal customary law is one aspect of the notion that the Aboriginal peoples will benefit if they continue to be treated as a class separate from the rest of the community, which must necessarily be a dependent and disadvantaged class.