Aboriginal and Torres Strait Islander Law Incorporation

This essay examines the debate surrounding the incorporation of Aboriginal and Torres Strait Islander law into the Australian criminal justice system. It assesses the arguments for and against incorporation, considering the historical context of colonization and its impact on Indigenous communities. The essay analyzes the pros, such as addressing injustices and recognizing cultural practices, and the cons, including concerns about human rights and the potential dilution of Aboriginal law. It references the Law Reform Commission recommendations and explores the feasibility of integrating Aboriginal law within the existing legal framework. The essay also discusses the United Nations Declaration on the Rights of Indigenous Peoples and its influence on the Australian Criminal Justice system. Ultimately, it compares the benefits and challenges of incorporation, reflecting on the potential for a more culturally representative justice system.

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The Incorporation of Aboriginal and Torres Strait Islander Law
Student Name:
Student ID:
Course Name: Race, Crime and Justice
Course Code: 3016CCJ
Date

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The Incorporation of Aboriginal and Torres Strait Islander Law
Debates whose focus has been on the injustices faced by indigenous people, have arisen
from the incorporation of Aboriginal Law into the Australian Criminal Justice System. This
essay assesses the methodical racism and the ever present intergenerational trauma developing
due to colonization and its representation in Australia’s increasingly western criminal justice
system and what changes the adoption of the Aboriginal law will bring. It will assess the pros in
favor of its incorporation into the Australian Criminal Justice system. Law Reform Commission
recommendations will be scrutinized to support the need for change to cater for Aboriginal
cultural practices and values. After, the cons will be assessed. Finally, the pros and cons will be
compared in acknowledgement of the Australian Criminal Justice System development from
westernization with ignorance to the numerous benefits of a culturally representative system for
everyone. The essay will reflect on the feasibility of incorporating Aboriginal Law into the
Australian Justice System.
The Criminal Justice System has maintained its overly European foundation and
application despite significant developments since colonization (Lingard, 2015). A system
inclined to be in favor of a particular race harbors injustice for Aboriginal people. Incorporation
of Aboriginal law into the system serves as a solution to this injustice. Despite its lack of written
material Aboriginal Law is of importance in their culture. It imitates forms of law by having a
body of rules enforced by penalty or sanctions. An Australian Law Reform Commission in 1986
acknowledged that its incorporation has led to more acceptance that Aborigines have the right to
retain their indigenous culture and racial identity comparing it to the obscurity of Aboriginal law
which greatly sabotaging a system of social and cultural authority (Bodkin-Andrews et al.,
2016). It also highlighted inefficiencies of the westernized system. In 2006, reform commission

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of inquiry on the Aboriginal Customary Law insisted on the coexistence of two legal systems of
which it didn’t support and emphasized on the incorporation of Aboriginal law within the
existing Western Australian law (Martin & Finlayson, 2018). Due to the numerous concerns
focusing on the strengths of the westernized culture embedded in the justice system, Aboriginal
law hasn’t been efficiently nor effectively incorporated. The westernization or destruction of the
law would result in demolition of a culture that unites indigenous people.
Although the need for incorporation of the Aboriginal law is clear, is inception is
troublesome in that it heightens the possibility of diluting Aboriginal law by influence of the
western culture. Other than that, the indigenous people fear that incorporation of the Aboriginal
law will result into lack of or the loss of control of the same (Kwaymullina, 2017). The argument
surrounding punishments involved in Aboriginal law serving as an infringement of human rights
laws serve as a debate against the incorporation of Aboriginal law into the Australian Criminal
Justice System (Allison et al., 2012). Aboriginal laws have incorporated inhumane punishment
of human beings not tolerated by human rights laws of which Aboriginal culture considers it as a
means to promote peace in communities.
The general unequal treatment of the female gender and violence against women in
Aboriginal culture and its people serves as an additional argument against the incorporation of
the Aboriginal law into the Australian Criminal Justice System (Kwaymullina, 2017). Aboriginal
women are regular victims of a numerous violent attacks, murder, suicide, dispossession, sexual
assaults, alienation, poverty, discrimination and mistreatment. These in addition with the social
and economic positon of the weaker gender in a male dominated society have resulted in the
downplaying of women roles in the society and culture of the Aboriginals (Behrendt et al.,
2019). This debates shows clearly that Aboriginal laws should not be overlooked when in they

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are in relation to violent offences against the weaker sex. Concerning a case involving a young
teenage girl raped past midnight in Alice Springs stated that, "Aboriginal women have a right as
all other women do to be protected by the law. Rape… in circumstances like this case where
there are no elements of tradition, involved, are crimes of violence in their essence".
Other than that, there would be over representation caused by the incorporation of the
Aboriginal laws into the Australian Justice System. In addition to this, the Aboriginals are more
likely to be victimized is a cause for concern too. The notion that The Australian Criminal
Justice System cannot operate more than one discrete legal system is a cause for concern as it
will not be able to sustain its legal integrity if it cannot accommodate all it is meant to serve.
Klein et al. (2016) emphasizes this by commenting that "Indigenous Australians want greater
confidence in the legal system. We want to know that in its day to day opera/on, the legal system
understands and respects our cultures, our heritage, and our histories and that it is constructed in
a way that is capable of providing justice for our people and communities".
The insistence of a westernized legal module with its Europe values deeply embedded
does not efficiently and sufficiently cater for Indigenous people in order for them to be able to
recover and repair from the intergenerational injustices as a result of colonization (Klein et al.,
2016). Although it has its challenges, the incorporation of Aboriginal law in the Australian
Criminal Justice System, it also has profound viability to bring to, enhance and sustain growth
and equality to Aboriginals. There has been a growing community discussion and support for
upgrading the Constitution to show the actuality of the modern day Australia in recent times. The
United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) was taken up
by the United Nations General Assembly in September 2007 (Douglas & Fitzgerald, 2018).

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On 3rd April 2009, the Declaration was officially adopted by the Australian Criminal
Justice system. The Declaration, which does not contain any new rights, sets out a framework by
which the pre-existing human rights standards are adopted and implemented to the Indigenous
peoples’ situation (Tilbury, 2015). It asserts the right to free, prior or informed consent which
means that in a situation where the making laws, policies or taking on activities that ultimately
have an effect on the indigenous people, corporations and governments should seek to negotiate
and seek to gain consent from the Indigenous people (Olthuis et al., 2012). This in turn leads to
procedures where corporations and governments can work in conjunction with the indigenous
people to come to amicable solutions and agreements that all involved parties can agree upon
pertain to contentious issues.
The incorporation of The Aboriginal Law into the Australian Criminal Justice System
would be advantageous in the acknowledgement and approval of the Aboriginal traditions,
culture, values and its people as a whole (Rodgers-Falk & Vidler, 2012). It would also represent
progress in the criminal justice system paving way for more initiatives that would accommodate
other laws and cultures altogether let alone Aboriginal Law. The incorporation of The Aboriginal
Law into the Australian Criminal Justice System would also play a beneficial role in reducing of
the over-representation of Aboriginals in the criminal justice system (Hunt, 2013). This will in
turn curb marginalization experienced by the Aboriginals. The cons of the incorporation of The
Aboriginal Law into the Australian Criminal Justice System based on Aboriginal women can be
easily addresses and rectified by the adoption of the world renowned human rights laws.
In Aboriginal culture and history, this law is very fundamental to the extent that
distorting, altering and or destroying it would be considered as adverse destruction of indigenous
culture (Lingard, 2015). Nur noted that lack of support from western law been attributed by

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violent colonial policies which resulted to criminalization of indigenous practices, indigenous
assimilation, dispossession and genocide of the indigenous. This system (colonial system), which
disrespected and disvalued the indigenous culture, caused Aboriginal law to be misunderstood,
disrespected and undermined (Rodgers-Falk & Vidler, 2012). Consequently, it was almost
impossible to incorporate it into the Australian justice system. This means that’s the
incorporation of Aboriginal law into Australian Criminal system cannot be done without altering
it to include western procedures, principles and institutions which are considered as “morally
superior and correct”.
Hunt (2013) observed that fear of westernizing of the laws arises and is highly
problematic in adopting them (Aboriginal laws) despite the need to change or modify the system
to be inclusive and incorporate the concerns and values of everyone in the society. They
proposed that to accommodate the law into the Australian legal framework, instituted spaces had
to be created to cater for the changes anticipated to result from the adaptation or the merge (Price
& Rogers, 2019). In addition, the feeling of fear of loss of control by the aboriginal once the law
is incorporated into the Australian Criminal Justice system. However, this can be tackled by
including their representatives in the Legal Judicial system.
Also, the conflicts of human rights laws and Aboriginal laws, majorly punishments
involved in Aboriginal laws is another argument against its incorporation into the Australian
legal framework (Apted et al., 2013). Some aspects of the law (Aboriginal) have been termed as
inhumane or unacceptable treatment of individuals which cannot be tolerated let alone been
recognized (Kwaymullina, 2017). This have been attributed to major cultural differences
between the Western and the Aboriginals, with the western arguing that the most punishments
are used to revenge and to settle scores to promotion of the evil glorified practices. Also,

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Aboriginal law considers punishments as means of reducing crime hence maintaining peace in
the society, which in turn reduces the number of individuals sentenced to imprisonment unlike
the Australian Criminal Laws (Lowe & Yunkaporta, 2013). It is important to note that
Aboriginal law is always against imprisonment of the indigenous as it terms this act uncultured
hence unacceptable. This makes it difficult for the Aboriginal law been incorporated into
Australian Criminal Justice Law as it condemns as it considers jailing indigenous inhumane.
Another Argument for incorporation of Aboriginal Law into Australian Criminal Justice
Laws is how indigenous women have handled and violence meted against them (Behrendt et al.,
2019). They have been degraded and treated as inferiors due to male dominated society which
was brought about by introduction of White (European) settlers which caused denial of their
some of their rights (such as land ownership), isolation and poverty making them weak socio-
economically (Cunningham & Paradies, 2013). This has rendered many women vulnerable to
violence such as homicides and sexual assault. The argument presents that Aboriginal law should
not be considered when dealing with these cases.
Many Judges are on record for overlooking Aboriginal laws. A good example is a fifteen
years girl who was raped at 11:30 a.m. The judges refused to consider Aboriginal law and ruled
that even indigenous women have human rights and need to be protected by the law. The case
was termed as criminal (crimes of violence) in nature (Hovane et al., 2014). This paper argues
that societal normal (mainly anchored under aboriginal laws) do not allow mistreatment of
children and women. Including aboriginal law may aid may aid to reversing socio-economic
status hence making them less vulnerable. A good case is gender empowerment.
Another worry into incorporation of aboriginal law into the Australian Judicial System is
whether this will change the hard stand on violent indigenous male offenders by the Judicial

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system who claim customary rights as means of justifying violence hence sentences (Wensing,
2014). This brings the need for discussion of many areas of Aboriginal law. Statistics suggests
that many indigenous are likely to be victimized, which is worrying, and they are over
represented in the criminal justice system (Douglas & Fitzgerald, 2018). This brings the reason
for debate on whether incorporation of Aboriginal laws will be beneficial or not (Leeson et al.,
2016). A lot of criticism has been raised on the government and the Judicial criminal system
arguing that all human beings (whether indigenous or not) should be treated the same and same
laws should be applied to them.
Two level of systems cannot exist neither can they be operated by a judicial system
(Klein et al., 2016). This argument has raised concerns on how the Judicial Criminal system can
incorporate Aboriginal laws into its system and maintain its legal integrity and apply judgements
(punishments and sentences) without considering facets and values eminent in Aboriginal law
concerning marriage, domestic violence and sex offences (McMillan & McRae, 2015). However,
Judicial Criminal System must reevaluate, respect and put into considerations the concerns of all
its clients. The existence and operation of one legal system which borrows widely form the
western culture serves to only revive trauma and pains caused by colonization (Tilbury, 2015).
This brings to incorporate Aboriginal law into the judicial System (despite their short comings)
as they are deemed to have a more positive impact into the society.
In conclusion both arguments for and against about incorporation of indigenous laws into
the Australian Judicial system have been scrutinized and deeply debated. The importance of
Aboriginal law in the Australian indigenous culture has been discussed as well as the western
racism that has continued its existence in the Australian Judicial system since the colonial era.
The adaptation of Aboriginal law into the Australian Judicial System would therefore lead to

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create numerous positive impacts in the society, for instance, it will be considered as
appreciating and giving value to the indigenous culture and values. This could lead to multi-
stakeholder driven creation of judicial system initiatives which will make legal service to be
appreciated by the society. Therefore, the formation of systems which adopt and incorporate
Aboriginal law will lead to reduction of overrepresentation of indigenous in the judicial systems.
In addition, it will lead to significantly reduction of offences meted against women (marital
violence and sexual offences) and also chance and alleviate the socio-economic situation of the
indigenous women. Distorting the law through representing it into two different systems
(Aboriginal law and the western system) were some of the major arguments against
incorporation of Aboriginal law into the judicial system. Other issues such as human rights,
treatment of Indigenous women and punishment criteria were critically discussed and strongly
brought out the shortcoming of incorporating Aboriginal law into the Australian Judicial system.
Inclusion of aboriginal law therefore will endeavor to protect all against discrimination despite
their race.

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