Aboriginal Customary Law

The Aborigines Protection Act 1909 (NSW) was a law that changed Indigenous Australian lives forever. The act enabled the New South Wales Board for the Protection of Aborigines to essentially control the lives of Aboriginal people. It was the Aborigines Protection Act 1909 (NSW) that had major provisions that resulted in the containment and suffering that Aboriginal people endured. This suffering included the practice of forcible removing Indigenous children from their families. These major provisions help us understand what the Aborigines Protection Act 1909 (NSW) involved and the impact it has had on the daily lives and cultures of Indigenous Australian peoples today.

It is a commonly known issue in Australia that as a minority group, the people of Indigenous Australian ethnicity have always been treated, or at least perceived, differently to those of non-Indigenous disposition. This can be applied to different contexts such as social, economic, education, or in relation to this essay – legal contexts. Generally, Indigenous Australians face issues such as less opportunity for formal education, less access to sufficient income, more health issues, and higher rates of imprisonment (Steering Committee for the Review of Government Service

It also found it was out of step with international human rights and that Aboriginals had been dispossessed of their land rights unlawfully. Native Title Act 1993 After the Mabo case which recognised the existence of native title rights, Land Councils lobbied the Federal Government to legislate to protect any native title that had survived 200 years of colonisation. The Native Title Act 1993 is part of the Commonwealth Government's response to that historic High Court decision.

There is recurrent tension between the maintenance of Indigenous culture and essentially assimilating to the rules and regulations of the predominantly white society in Australia (Dockrey, 2010). Australia’s Aboriginal culture represented the oldest surviving culture in the world (Aboriginal culture, 2017). The traditions include having at least 270 different language groups and 500 dialects in the indigenous community (Shareourpride.org.au, n.d). The vast amount of languages and dialects were present to represent the intellect of Indigenous Australians. Language is a strong aspect of Indigenous culture as it connects and influences many Indigenous tribes as it is their form of communication. The environment also connects aboriginal people spiritually to their land and provides them with a sense of identity (Jackson 1999). Although there were many different groups and clans in the past, the tribes fighting over the land was a rare occurrence (Treatyrepublic.net 1996). This showcases the connection and respect they exhibited for the land and maintaining structure was their main priority. Additionally common law was a way that Indigenous Australians could preserve the ecosystem and cultural integrity, through their spiritual and emotional connection with the land (Langton 1996, p.10). However due to the colonization, there was less formal acknowledgement for Indigenous

In 1976 the Fraser government passed the Aboriginal Land Rights Act. Several state governments passed their own Land Rights Acts, which recognised aboriginal and Torres Strait islander claims to land and guaranteed them royalty payments from mining companies working there. Some laws enforced by the government became challenging for most indigenous people to abide by. Through the analysis of this information we understand the impacts the government and its laws had towards the indigenous society of

This essay looks at Indigenous Australians in relation to the institution of ‘Criminal Law’. In this context, criminal law refers to legal processes such as police questioning, investigation and detainment as well as arrest, custody and bail. It also encompasses associated court procedures up to the point of sentencing. The focus will be to first outline the importance of criminal law to Indigenous Australians and then provide a critical analysis of the unique experiences and barriers that this group encounter in accessing criminal law in a positive way. Following this analysis, the development of possible ways to improve Indigenous access to criminal law will be discussed. Particular attention will be given to the way in which Indigenous Australians are affected by the transition of our modern justice system toward broader social justice concepts that incorporate risk management of potential criminal behaviour. From this discussion a conclusion will be drawn as to whether or not Indigenous Australians enjoy equality of criminal law and whether the structural elements of the law itself perpetuate Indigenous injustice and disadvantage.

Aboriginal people struggled to uphold their traditional customs and rituals as they did not have the rights and access to their own land prior to and post federation in 1901. Healey ed. (2002), experienced editor and author states, when the British settlers arrived they overlooked the fact that Aboriginal people claimed and were sustaining the land of Australia. Britain had declared Terra Nullius despite their knowledge of the inhabitants of the land, the traditional owners. Throughout settlement, policies were put in place by the colonists to minimise land used for spiritual reasons by Aboriginal Australians (Korff, 2016). Hillman (2001), educator and author, infers that with this their culture was dramastically changed. Aboriginal people fought back for their rightful land, but their protests were insignificant

The Effectiveness of the Law in Achieving Justice for Indigenous People In relation to Australia, the term ‘Indigenous peoples’ refers to two distinct cultures of people who inhabited the land prior to European settlement – The Aboriginals and the Torres Strait Islanders. This population declined dramatically over the 19th and early 20th century due to the introduction of new diseases from European settlement, Government policies of dispersal and dispossession, the era of protection, assimilation and integration causing a cultural disruption and disintegration of the Indigenous peoples. In the 20th century the recognition and protection of Indigenous peoples land rights and human rights have been

The recognition of aboriginal customary laws under the Australian Criminal justice system is just confined to acknowledgement of just the traditional physical punishments at the stage of sentencing. It all depends upon the interpretation and readings of individuals who play a role in the Criminal justice system in the capacity of judicial officers, officers of the court, lawyers and police officers etc. (Aboriginal Law& criminal justice,Law Reform Commission,W.Australia)

The term ‘Native Title’ refers to the right of Indigenous people to their traditional land. In Australia it has a legal significance of the right to an area of land, claimed by people whose ancestors were the original inhabitants of the land before European settlement. Also who can prove that they have had a continuous connection with the land. Native Title is the term given by the High Court to Indigenous land rights by the Court in Mabo and others v State of Queensland (No.2) [1992] HCA 23. The case required

The Aboriginal concepts of justice compared to Western concepts of justice are quite different. Aboriginal peoples are therefore required to fit into a system that does not recognize their values. This difference in beliefs and values in relation to the criminal justice system represents a clash between the two cultures, which results in Aboriginal peoples being incarcerated at higher rates than non-Aboriginal

When looking at the current criminal justice system in Canada, New Zealand, and Australia, it is clear that it has failed in the treatment of aboriginal people. This problem has strengthened the idea of restorative justice as a replacement of the traditional system. When looking at implementing circles into that realm of restorative justice, there needs to be an agreement that their practices are diverse, and therefore not to force the issue. Many traditional practices are very spiritually based, and it needs to be evident that

There have been many significant cases that have dealt with the issue of jurisdiction. Among these cases was the Sparrow case of 1990. The Court determined that “Aboriginal Rights were constitutionally protected, and that those rights can only be extinguished with First Nations consent.” Moreover, the Court ruled that “Aboriginal rights could only be limited with justifiable reasons and that Aboriginal rights have to be interpreted in a generous and liberal manner.”

The 2007 The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states that ‘Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. The right to self-determination is born from the legal and cultural acknowledgement of Indigenous peoples as Australia’s first settlers, and is important in the context of the Australian Legal System. Self-determination may be used by the courts to interpret domestic legislation, as well as

In the 6th century, the trial or ordeal began, later in the 11th century the common law developed in England and the Normans evaded England. The common law system was brought over to Australia in the year 1788. The courts of Equity were developed due to the common law courts are ‘unjust’. These courts introduced fairness into our common law system.