Recognition of Aboriginal Law: An Australian Perspective

This essay explores the recognition of Aboriginal law within the Australian legal system. It begins by defining Aboriginal law as the customary law of Australia, contrasting it with the common law system, and highlighting the conflicts that arise, particularly regarding personal laws and legal precedence. The essay examines the historical context, including the Aboriginal Protection Act of 1897 and the subsequent shift in government policies. It emphasizes the importance of recognizing Aboriginal law based on human rights principles and international covenants. The paper recommends statutory provisions, Aboriginal participation in decision-making, and the development of law and justice plans to integrate Aboriginal customary law. The essay concludes by emphasizing the need for mutual respect, understanding, and efforts to remove ambiguities between the two legal systems, advocating for courts to consider Indigenous customary law in sentencing and other legal decisions, and highlighting the ongoing discrimination faced by Indigenous communities. References include legal cases, academic articles, and government documents related to the topic.

Running Head: RECOGNITION OF ABORIGINAL LAW
Recognition of Aboriginal Law
Name of Student
Name of University

RECOGNITION OF ABORIGINAL LAW 2
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
1 Danial Kelly, The Black and White of Wunungmurra, (2012) 2 NTLJ 227
<http://customarylawproject.yolasite.com/resources/NTLJ%20Vol%202%20No%204_Danial%20Kelly
%20Article.pdf>.
2 David Moore, "Unfriendly terms in court: Aboriginal languages and interpreting in the Northern
Territory." Indigenous Law Bulletin 8.12 (2014): 8-10.

RECOGNITION OF ABORIGINAL LAW 3
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
3 Prof. Dr. Ida Bagus Wyasa Putra Dr. 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)
<https://online.cdu.edu.au/bbcswebdav/pid-2418047-dt-content-rid-7589332_2/courses/LWA113_SP2_2017/
Indonesia%20Bali%20course%20material%202017.pdf>

RECOGNITION OF ABORIGINAL LAW 4
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 system5. 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
4 Ibid.
5 Altman, Jon, and Sue Jackson. "Indigenous land and sea management." Ten commitments revisited: securing
Australia’s future environment. CSIRO Publishing, Canberra (2014): 207-216.

RECOGNITION OF ABORIGINAL LAW 5
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
Jamilmira7 where the offender, an Indigenous male, was convicted for committing unlawful
6 James Gurrwanngu Gaykamangu, Ngarra law: Aboriginal customary law from Arnhem Land, (2012) 2 NTLJ 246.
<http://customarylawproject.yolasite.com/resources/LAWREP-001-NTLJ-JL-0283.pdf>
7 (2003) NTLR 14.

RECOGNITION OF ABORIGINAL LAW 6
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.
8 (1994) HCA 64.

RECOGNITION OF ABORIGINAL LAW 7
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
<http://customarylawproject.yolasite.com/resources/NTLJ%20Vol%202%20No
%204_Danial%20Kelly%20Article.pdf>.
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) <https://online.cdu.edu.au/bbcswebdav/pid-2418047-dt-
content-rid-7589332_2/courses/LWA113_SP2_2017/Indonesia%20Bali%20course
%20material%202017.pdf>
James Gurrwanngu Gaykamangu, Ngarra law: Aboriginal customary law from Arnhem
Land, (2012) 2 NTLJ 246.
<http://customarylawproject.yolasite.com/resources/LAWREP-001-NTLJ-JL-0283.pdf>
Walker v The State of New South Wales, (1994) HCA 64.