A comparison of australian law and customary law

And that it is constructed in a way that is capable of providing justice for our people and communities. Few in Australia understand the context and true meaning of customary law. Ancient roots of law In the 6th century bce according to legendthe Greek lawgiver Solonfaced with the task of compiling the laws of Athens, gathered together the laws of various city-states.

But it must be acknowledged that the number of identifiable families and the appropriate classification of a given system are questions always open to argument.

Key recommendations Criminal law A partial customary law defence, similar to diminished responsibility, should be introduced that would reduce a charge of murder to manslaughter in those cases where an accused acted in the well-founded belief that the customary laws of his or her Indigenous community required the act constituting the offence.

Comparative law

There is then a process by which the child and her family affirm the contract and the girl goes to live with the family of the husband, but not usually with the husband at first.

Almost every aspect of day-to-day communication with other Aboriginal people is governed A comparison of australian law and customary law kinship ties. A disjunction in knowledge and information-access is emerging between the generations. Customary law has become the culprit or the cause of problems such as violence when in fact what is lacking is clear information to provide a framework for understanding and practicing lawful behaviour within the different systems.

Consciously or otherwise, their rejection is based on first contact between settler and Indigenous Australians. If properly reflected, many Indigenous people would argue that it is the absenceof customary law that creates disharmony. Sometime thereafter the girl goes to live with the husband as his wife.

I am uneasy about the debate surrounding the proposed amendments to the Commonwealth Crimes Act because of its focus on customary law and despite the fact that, the amendments impact on all cultural groups. Further, should there be traditional attitudes which subordinate women, including forced marriages, these will breach that Convention.

The bridge needs to be formed between black and white, urban and remote, and between young and older generations.

Sincecommon law has admitted the existence of Indigenous customary laws, which inhered in another normative system. These particular amendments may potentially have a limited impact on Aboriginal customary law because they are limited to Commonwealth crimes which include amongst others, migration, national security, taxation and social security issues.

Australian Bureau of Statistics One of my staff recently went to the Tiwi Islands as part of her work for the Commission.

Customary law in Australia

In fact little has changed in the fifteen years since the report was published. But this does not mean that we take the heat off government.

1 Aboriginal Customary laws and the Criminal Justice System

My third challenge is to all of us here — and it is about improving the quality of the debate. The question is, therefore, whether and in what ways Aboriginal customary laws should be recognised within the framework of the general criminal law. Sometimes it is said that studies with such a focus should not be considered a part of comparative law, but practical considerations certainly have helped to finance and promote the development of comparative legal studies in general.

One task facing statesmen and jurists is to inject new life into this effort, adapting it to the exigencies of the modern world.

But the consequences of terra nullius appear to have prevailed and the report was, for the most part, shelved. You would have no inkling that customary law is not frozen in the past, but a living, changing system that reflects its times, and will continue to grow and change, just as the common law continues to grow and change.

Is it sufficient to take them into account only in sentencing the offender?

Aboriginal Customary Laws

I will continue to argue the need for human rights education as it provides excellent guidance in building the bridges between Aboriginal customary law and the Australian legal system. Despite these efforts, customary law always was, and still is, observed on the Australian continent.

Some excellent work has been done to this end, and we all have a responsibility to ensure that the available research is not ignored. InChief Justice Blackburn of the Northern Territory Supreme Court recognised that the Gove Peninsula in the northeastern corner of Arnhem Land was occupied by a people truly given to the rule of law, a civilised law that was not the common law.

To remove it is to remove the traditions that hold together Indigenous societies. The specialist in one national system is usually qualified to study those of various other countries of the same general family. Overall, the general level of information about rights, responsibilities and obligations under human rights and Australian law, is poor.

The girl can choose not to comply with the marriage agreement at any time prior to living with the husband.How has customary law been recognized or applied in other areas of law, such as family law, the law of succession, the law of land tenure and natural resources, constitutional law, human rights law and criminal law, as well as the law and practice.

At the Australian Reconciliation Convention in May there was strong support among participants for the recognition and application of Aboriginal and Torres Strait Islander customary law and traditions within Australia's written statutes and common law, and in court procedures.

Historically, customary law has not been recognised as part of the canon of Australian law. But, since the late twentieth century, the Australian Law Reform Commission () and the Law Reform Commission of Western Australia () have written extensive reports investigating the desirability of recognising the role of customary law in legal.

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.

The Integration of Customary Law into the Australian Legal System: Calma

Aboriginal Customary Laws and Australian Contemporary Laws Aboriginal customary laws, before white settlement inwere considered primitive by the British, if considered at all. But Aboriginal laws and customs had lasted hundreds of years, based on traditions such as kinship ties and rituals.

The Integration of Customary Law into the Australian Legal System: Calma; The Integration of Customary Law into the Australian Legal System We have a task to proactively educate Australian society about customary law and we must reclaim the customary law debate if we want the wider community to accept this system of law.

A comparison of australian law and customary law
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