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Traditional Indigenous communities were very structured and the people within them abided by many ancestral laws and regulations. Indigenous people believe that all their customary laws were established during the Dreamtime (the time of creation) by their ancestors. These laws determined the appropriate behaviours of different people within the tribe. The laws also decided which foods could be eaten, how food should be shared, people’s rights and obligations, family rules, marriage arrangements, religious duties and punishments for those who broke the rules (Customary Law, Traditional Life, Aboriginal People and Torres Strait Islanders, 2005).
2.0 The diversity of Aboriginal and Torres Strait Islander laws
There are approximately five-hundred known Aboriginal and Torres Strait Islander nations (Hamper et.al, 2009, p.58). Within each of these nations are a number of clans. Each of these clans has their own territory, traditions and rituals and has developed a unique law. Therefore, there are thousands of forms of Aboriginal and Torres Strait Islander peoples’ customary law. However, all of the clans have a spiritual basis by which to form their law. For example, the Dreamtime is of great importance to the establishment of the law and the role of the land and spirituality in Aboriginal and Torres Strait Islander customary law.
3.0 The spiritual nature of customary law
The main principle of traditional Aboriginal society is belief in the oneness of the spiritual, human and natural world (Aspects of Traditional Aboriginal Australia, 2007). Aboriginal spirituality is based on the Dreaming (derived from ‘Dreamtime’), Totems and connection with land and bodies of water.
3.1 The Dreaming
This spiritual worldview is known as the Dreaming, and it permeates every aspect of traditional Aboriginal life. The importance of the Dreamtime lies in the way it tells how the spirits made and maintained the land and how they laid down the law.
The essence of the Dreaming is that every part of the life force – the Ancestral Beings, the land, the sea, humans, fauna, flora and natural phenomena – is inextricably and eternally connected to every other part. Moreover, through the observance of ritual and ceremony, humans are able to enter into a direct relationship with the Dreaming (Aspects of Traditional Aboriginal Australia, 2007)
3.2 Totems
An important aspect of Aboriginal spirituality is the belief that every person has a totem. Totemism describes the relationship between an individual with a plant or animal species, or a condition or a situation. In traditional Aboriginal belief each person’s totem originates in the place where that person’s mother was impregnated with a spirit child. Spirit children are released in particular sacred places by the Ancestral Beings. For example, a pregnant woman near the site of a goanna will er unborn child is immediately affiliated with the goanna totem31.
3.3 Connection with land and bodies of water
The close bonds between Aboriginal people and the physical and spiritual worlds are especially apparent in relation to land. Land is vested in each member of the language group as a sacred bequest from the Dreaming, and thereby provides the foundation for the group’s existence. Each group’s territory is physically, spiritually, economically and culturally essential for survival. Accordingly, connection to land is an integral part of the psyche of every person within the language group.
4.0 The features of Aboriginal and Torres strait Islander law
There are four fundamental features of Aboriginal and Torres Strait Islander peoples’ customary law; orally based, agreement on laws throughout the whole group, family and kinship ties and, based on rituals and traditions. A key feature of Aboriginal and Torres Strait Islander law is the concept of shared ownership of the land and resources. This concept is in desolate in contrast to European law, which is devoted to the principle of private ownership
5.0 Ritual and oral traditions
The rituals that each clan practiced came from their various interpretations of the Dreamtime. These rituals were found in all areas of life, including religion and customary law. In a similar way to European law, therefore, Aboriginal and Torres Strait Islander customary law has a strong ritual element. For example, ritual ceremonies involving special sacred sites, song cycles are accompanied by dance, and body painting, and even sports (Indigenous Traditions – Australian Aboriginal and Torres Strait Islanders, 2006) .
One of the main features of Aboriginal and Torres Strait Islander customary law is that it is oral law. This means that the law is not written down but instead transmitted by word of mouth. Each generation must remember the laws and then pass them on to the following generation. Songs, dance and stories were used to help members of the clan remember the various laws that applied to their group.
One of the problems associated with oral law is that it can be forgotten or misinterpreted. As one generation passes on the law to another, it is easy for it to be unwittingly modified. To overcome this problem, Aboriginal people would simply ignore a law that had changed to the point that it was now unjust. This is one of the main advantages of oral law: its flexibility. As a society adapts, so can the law. In European-based legal systems, changing the law involves a long and usually time-consuming process; as a consequence, the legal system can become out of step with the expectation of society.
6.0 Dispute Resolution
Dispute resolution involves mediation and conciliation carried out by elders of Aboriginal and Torres Strait Islander communities. Mediation involves all parties involved in a dispute talking through their issues and trying to resolve their problems through negotiation. Rather than handing out punishment to a person who broke tribal laws or customs, Indigenous legal tradition holds that it is better to have a family member talk to the individual and attempt to resolve the problem by discussion.
Where a dispute could not be resolved through mediation, conciliation would be used. In this method of dispute resolution, the elders of the tribe would meet with the people in the conflict and attempt to Help them to reach a resolution through discussion and dialogue. Their grey hair often identifies elders, however, younger wise men would also participate in meetings. However, the elders in Indigenous communities are dying out making it difficult to include them in meetings.
7.0 Sanctions
There are numerous sanctions within Aboriginal and Torres Strait Islander peoples’ customary law. The primary sanctions include: social ridicule and isolation, revenge, fighting and insulting, trial by ordeal and, inquest. Tribal punishment is existent in Aboriginal culture. Traditional punishment is a branch of customary law; punishes offenders violatin and breaching Aboriginal community values.
Theway in which punishment is laid out is similar to that of the Australian criminal justice system. A meeting is held comprising the accused, plaintiff and elders who decide the penalty and the severity of punishment. An example of a common punishment is the accused being speared a number of times in the thigh.
8.0 You should conclude your report with an opinion, supported by evidence, as to whether the two forms of law under consideration are compatible and could co-exist in Australia.
There are significant differences between the modern Australian legal system based on English common law and Indigenous customary laws. Under Australian law there is a clear separation between legal matters and religious social and moral values. However, traditional aboriginal law is inescapably based on Aboriginal religion; the Dreamtime provides the acceptable codes of behaviour in all aspects of life.
Some areas of customary law are compatible in Australia such as mediation and recognition of traditional land. A form of mediation referred to as circle sentencing has been incorporated into the criminal justice system. For example, the Koori court, an initiative of the Victorian Aboriginal Justice Agreement, aims to redress overrepresentation of Indigenous offenders in the criminal justice system through the introduction of justice-related programs and services in partnership with the Koori community (Message Stick – Koori Court, 2005). The members of the Koori Court comprise community leaders, a magistrate and an elder of the community. Trials of circle sentencing in different areas of Australia have been successful. Circle sentencing has reduced the barriers that currently exist between Courts and led to improvements in the level of support for Aboriginal offenders (Lawlink NSW: 3. Aboriginal Customary Law, 2000).
In addition, the Lardil Peoples v. State of Queensland [2004] FCA 298 demonstrates the growing recognition of importance of bodies of water to the Indigenous Australians. The traditional owners (the Lardil, Yangkaal, Kaidilt and Gangalidda peoples) were able to demonstrate a strong spiritual and cultural connection to the bodies of water and, therefore granted native title. (Hamper, 2009, p.61Legal studies Preliminary third edition Publisher: Pearson 2009 Authors: David Hamper et.al, Bruce Derwent, John boesenberg, Michael Hayes, Nerida thiering)
There are many conflictions between Aboriginal and Torres Strait Islander customary law and Australian criminal law. Many of the traditions accepted in Aboriginal and Torres Strait Islander cultures are crimes in Australian common law. For example, For example, in 2002, a fifty year-old year-old Arnhem Land man, Jackie Pascoe, was sentenced to one-day jail for having unlawful sexual relations with his 17-year-old bride. This was due to Aboriginal traditions permitting relations with his underage promised wife (SSABSA, Cultural Punishment, 2005).
Contemporary Australian law relies on isolation from the community instead of physical punishment. The criminal justice system sends people to jail, sometimes for years and years. That means that they cannot be with their family and cannot go to work. However, Aboriginal and Torres Strait Islander customary law is dependent on sanctions such as revenge, trial by ordeal, inquest and other forms of punishment.
European law resents tribal punishment for the reason that there is a significant risk that punishment would involve unlawful physical force and the courts cannot condone unlawful acts. A case heard in 2004, in the Northern Territory Supreme Court granted bail to Anthony, a traditional Walpiri man who had murdered his wife. Elders from Lajamanu informed the NT Supreme Court about the punishment he will receive when Anthony returns to Lajamanu; he would be speared in the leg approximately four times by the family of the woman he was accused of killing.
Anthony consented to Revenge stating that he may be “cursed by Aboriginal magic that may kill him” or his family may be in danger if he did not undergo the traditional punishment. However, Chief Justice Brian Martin ruled that the punishment would result in grievous bodily harm, and thus be unlawful in terms of NT legislation.
On the 23rd of March, 2004, Jeremy Anthony was arrested at Katherine Hospital after treatment for a broken arm and leg injuries. He was allegedly in breach of his bail conditions when he visited Lajamanu to undergo tribal punishment (Mildren, 2003) .
This case portrays the continuous problem that occurs when traditional Aboriginal people are caught between two laws: Aboriginal and Torres Strait Islander customary law and Australian criminal law. To this day, traditional indigenous Australians follow customary law, thus usually breaching Australian criminal law.
The two sytems of law cannot co-exist alongside each other as Aboriginal people may face two punishments from each of the sytems which breaches Sentencing Act 1995. Australian common law has accepted that a person cannot be punished twice for the same offence.If an offender is sent to jail, the offender will get his/her punishment by the customary law system, either before getting sentenced or after. However, this is not just as this will burden Aboriginal and Torres Strait Islander people with another punishment from one of the two systems.
