One basis for recognition is the claim that Aboriginal customary laws can be seen to work, while existing non-Aboriginal law and order mechanisms have not been particularly effective in maintaining law and order in Aboriginal communities.
According to Clifford:. If we now wished to get nearer to the desirable balance between law and order and human rights, we need to develop customs and practices in ways previously neglected … When we think of Aboriginal customary law, therefore, we are not graciously recognising an inferior species of social control, but looking at a source of inspiration for the invigoration and improvement of the law of the land generally.
Aboriginal problems with the criminal justice system are, therefore, opportunities for Australian initiatives and development in the prevention of crime and the improvement of criminal justice. Thus there is support for the reinforcement of traditional authority within Aboriginal communities to assist in the maintenance of order:. The traditional Aboriginal punishment system is more effective in the case of the traditionally oriented Aboriginal person because the punishments are couched in terms of traditional values and are therefore both relevant and of impact.
Punishments that are not based on the prevailing value system are either ineffective because they are meaningless and are therefore not felt as punishment, or, they can be destructive and repressive because they are so out of tune with prevailing values that they are considered barbaric and inhumane.
This is a common reaction from non-Aboriginal persons when they hear of acts of traditional Aboriginal law enforcement. The reverse is equally true. In my view either the conclusion should be reached that there is no scope in present day Australian society for the application of Aboriginal customary law except possibly in relation to sentence or the other step should be taken of providing, in certain circumstances, for Aboriginal customary law to be the law to be applied in the trial and punishment of particular offenders … Where … land belongs to a Land Rights group upon the basis of traditional ownership it is in my view appropriate for Aboriginal customary law to be applied within that area.
It would be applied by the elders of the tribe who traditionally control that area … [I]n my view the scope [of tribal jurisdiction] should be as wide as possible … On the one hand, to give these powers to the traditional owners and, on the other hand, to take them away in the more significant and important cases is in effect to achieve nothing of practical value. But a common theme was the need to assist and support Aborigines in maintaining order in their communities, even though there was no agreement on how this could best be done.
Compensation for Aborigines. It is quite often argued that special measures should be taken by way of compensation to Aboriginal people for past wrongs. A House of Commons Select Committee pointed out in that:. It might be presumed that the native inhabitants of any land have an incontrovertible right to their own soil: a plain and sacred right, which seems not to have been understood.
Europeans have entered their borders uninvited, and when there, have not only acted as if they were undoubted lords of the soil, but have punished the natives as aggressors if they evinced a disposition to live in their own country … If they have been found upon their own property they have been treated as thieves and robbers.
They are driven back into the interior as if they were dogs and kangeroos. But the compensation argument is difficult to apply in the present context. The relationship between the European settlement of Australian and its impact on Aboriginal peoples, and the present position of Aboriginal people, was discussed in Chapter 5.
It is one thing to argue that the initial non-recognition of Aboriginal customary laws was shortsighted or wrong, and another to claim that recognition of Aboriginal customary laws is an appropriate form of restitution or compensation now. If recognition is to be extended to Aboriginal customary laws, this can now only be done by legislative action. There will therefore be less chance of it being ignored in the day-to-day administration of communities.
The Injustice of Non-Recognition. Where Aboriginal customary laws retain their traditional values and functions there is a strong argument for their recognition within the Australian legal system:. We regard it as necessary, that the existence of such laws should be brought into consideration when tribal Aboriginal people stand on trial in Australian courts.
It is obviously wrong that a person should be punished when he not only did not know that the alleged offence was an offence against the law, but positively thought that he was obliged or entitled to carry out the act for which he is charged. There is general agreement that certain forms of non-recognition are unjust. The Need for Consistency and Clarification of the Law. Similar Items Research paper.
Background paper on the value of a benchmarking framework to the reduction of indigenous disadvantage in Aboriginal, Torres Strait Islander and other First Nations people are advised that this catalogue contains names, recordings and images of deceased people and other content that may be culturally sensitive. Book , Online , Online - Google Books. Website Broken link? Includes bibliographical references. Aboriginal Australians -- Legal status, laws, etc.
Customary law -- Western Australia. Law - Indigenous. Law - Constitutional law - Bill of rights. This includes, for example, Article 6 the inherent right to life ; Article 7 torture or cruel, inhuman or degrading treatment ; and Article 23 requirement of free and informed consent for marriage. In relation to Article 3 of the Covenant equality between men and women , the Committee has observed that:.
Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes… States should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women's right to equality before the law and to equal enjoyment of all Covenant rights… The rights which persons belonging to minorities enjoy under Article 27 of the Covenant in respect of their language, culture and religion do not authorise any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights, including the right to equal protection of the law.
The Committee has expressed concern about domestic violence, including forced sexual intercourse, within the context of marriage. The provisions of the ICCPR are also to be read consistently with the interpretation of similar relevant rights under other conventions. So, for example, Article 27 alongside the guarantees of non-discrimination, equality of men and women, and equality before the law in Articles 2, 3 and 26 of the Covenant should be read consistently with related provisions of the International Convention on the Elimination of All Forms of Discrimination Against Women CEDAW.
The Committee on the Elimination of Discrimination Against Women has also noted that Articles 2,5,11,12 and 16 of CEDAW require States to act to protect women against violence of any kind occurring within the family, workplace or any other area of social life and that traditional attitudes which subordinate women, including forced marriages, will breach Articles 2 f , 5 and 10 c of CEDAW.
The inclusion of these matters within the definition of discrimination against women is a relevant consideration in consistently applying Article 27 with the non-discrimination provisions of the ICCPR especially Article 3. The Human Rights Committee has also stated that the purpose of protection of minorities under Article 27 must be justifiable as being 'directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned'.
The right to enjoy one's culture cannot be determined in abstracto but has to be placed in context. In this connection, the Committee observes that article 27 does not only protect traditional means of livelihood of national minorities… that the authors may have adapted their methods… and practice it with the help of modern technology does not prevent them from invoking article 27 of the Covenant. Decisions under the Optional Protocol to the ICCPR demonstrate how the Committee seeks to weigh up these considerations with the recognition of minority rights in Article The specific rights of minorities and indigenous peoples that have been recognised under Article 27 have been qualified by the requirement that their enjoyment shall not prejudice the enjoyment by all persons, including individuals from within the group, of the universally recognised human rights and fundamental freedoms ie, the rights listed in category a above.
In the Individual Communication of Kitok v Sweden the Committee stated that 'a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole'. In that instance, the restriction being complained of was a limitation on the ability of the individual complainant to conduct reindeer husbandry activities due to legislative provisions which sought to protect the Sami peoples' rights to practice reindeer husbandry as a whole.
This restriction, based on issues of sustainability of reindeer husbandry practices was seen by the Committee as justified as a reasonable restriction. In Lovelace v Canada the Committee had to consider the effect of a legislative provision that denied an Indigenous women who married a non-Indigenous man her status as an on-reserve Indian and therefore her right to reside on her peoples' reservation.
The relevant legislation did not provide that an Indigenous man would lose his on-reserve status should he marry a non-Indigenous women. The Committee stated that Article 27 had to be read consistently with other provisions of the Covenant, read as a whole in this case, particularly in light of Articles 2, 3, 12, 17, 23 and 26 and found that these restrictions could not be justified reasonably or objectively, or be seen as being directed towards ensuring the survival and continued development of the group as a whole.
An example where a restriction on an individual may be found to be reasonable and objectively justifiable under Article 27 has been provided by the Race Discrimination Commissioner in the Alcohol Report. In this, the Commissioner argued that restrictions on the availability of alcohol to Aboriginal communities which have been consented to by the Indigenous community as a whole may constitute a legitimate restriction on the rights of an individual within that community.
The commentaries of the international treaty committees, particularly the Human Rights Committee, demonstrate that human rights standards are capable of being applied in a manner that appropriately balances the rights of individuals within Aboriginal communities - such as women and children - with those of the community as a whole. Mainstream law needs to consider apparent conflicts between Aboriginal Customary Law and women's individual rights on a case by case basis.
It is also important to recognise that custom and law can adapt to general social change, thus allowing resolution of apparent conflict. The potential for conflict should not be used by government as an excuse to avoid the recognition of Aboriginal Customary Law or by Aboriginal communities to condone breaches of human rights. The current criminal justice system has a deleterious effect on Indigenous communities through over-representation of Indigenous people in custody, in large part due to historically derived disadvantage and ongoing systemic discrimination.
Processes of separation through the criminal justice, juvenile justice and care and protection systems, combined with dysfunctional behaviour such as violence and abuse in communities are indicative of the inequality and extreme marginalisation of Indigenous people in Australian society. This is combined with the lack of attention the justice system gives to the high rate of Indigenous victimisation, particularly through violence and abuse in communities.
A study in New South Wales in found that Aboriginal people, particularly Aboriginal women, are significantly over-represented among victims of crime. The study also found that victimisation in violent crimes is also predominately the result of offending by other Aboriginal people.
Reform to criminal justice processes, including through community justice initiatives, must be responsive to these factors. Improved community justice mechanisms have the potential to make a significant contribution to addressing the inequality and disadvantage experienced by Indigenous people and to do so in a way that is culturally appropriate and more effective that current processes.
There are numerous new initiatives in Australia developing community based justice mechanisms for dealing with juvenile and adult offending by Indigenous people. Some examples follow. The Community Justice Group model aims to provide Aboriginal people with a mechanism for dealing with problems of justice and social control which is consistent with Aboriginal Law and cultural practices as well as utilising aspects of the Anglo-Australian legal system.
The justice groups have no statutory authority. The source of authority for the group is based on the collective and personal authority of group members deriving from the place of individuals within kinship systems and the personal respect they are accorded by others. Ultimately the group's authority lies in Aboriginal Law and cultural practices.
The Community Justice Groups use traditional structures and cultural principles to develop and apply their own system of justice and social control. They seek to restore social order by curbing anti-social behaviour and by creating a more positive and supportive environment. Group actions that they handle within the existing legal framework include family-related dispute settlement, crime prevention and community development projects, co-ordination with government and community agencies and providing information and advice to the judiciary, Community Corrections Boards and other government decision making bodies.
Perceived positive outcomes for the model include: decline in crime rate and level of violence; an effective community corrections program at Palm Island that has kept people from appearing before court and from possible incarceration; dramatic decrease in juvenile crime at Kowanyama; changes in social patterns; more effective government service delivery, leading to savings in time and money for government and community agencies, courts, law enforcement agencies and correctional centres.
Perceived negative outcomes for the model include: harsh punishments; potential drain on the community's resources; acting without statutory authority; and a lack of indemnity for justice group members. The CJP model is an evolutionary process, with options at each stage to be trialled before the justice groups go on to the next stage. The CJP model is supplemented by monthly programs run by the Department of Corrections and the Department of Family and Community Services in substance abuse and anger management.
There are also women's shelters in all communities. Greater support is needed however for people on the alcohol management program in terms of counseling and support. Few in Australia understand the context and true meaning of customary law. This is akin to rejecting the common law based solely on, say, the use of lethal injections to execute prisoners in the United States. This is clearly wrong both conceptually and in practice. As Australia is a federation made up of multiple jurisdictions, it necessarily has a multiplicity of laws.
What they are really saying is that Australia should exclude Aboriginal and Torres Strait Islander customary law and arguably all non-Anglocentric laws.
Consciously or otherwise, their rejection is based on first contact between settler and Indigenous Australians. Herein lies the genesis of Indigenous invisibility in Australia.
This notion of terra nullius is clearly a legal fiction, devoid of both truth and ethics.
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