To the extent that the exercise of the right to preserve their racial identity and traditional way of life is prevented or impeded by the non-recognition by law of indigenous customary law or results in unnecessary legal obstacles or disadvantages, this in itself is a ground for recommending recognition. As Professor WEH Stanner pointed out in 1977, the Law Reform Commission must integrate certain Aboriginal laws into non-Aboriginal law in order to deal with these issues in a manner that is fair to both parties. [16] In a statement on the “promised bride” case of GJ, the Northern Territory Court of Appeal noted that “consultation with Aboriginal communities has too often been superficial” and suggested that it might be appropriate for the Human Rights and Equal Opportunity Commission to undertake “educational programmes on (conflicts between customary law and the penal code) in Aboriginal communities.” The law [should] encompass much more than the legal institutions that are the visible representatives of the new law in Indigenous communities. Law. relates to peacekeeping strategies, the resolution of conflict mechanisms and the ability to establish and maintain proper relationships with loved ones and the land of your ancestors. Women are important in all these areas of law. [6] As has so often been observed, the division between Indigenous “victims” and “perpetrators” is unclear. In reality, many indigenous peoples in the criminal justice system are both perpetrators and victims, just as, tragically, much of the violence against indigenous peoples is perpetrated by other indigenous peoples; Many of them have also been victims. I commend this report to you and suggest that it may support some options for those of us here who want to preserve and enhance the prestige of customary law. I would like to use your time today to address this issue by looking at the recognition of Aboriginal customary law in the Australian legal system from a social justice and human rights perspective.

In doing so, I will also focus on issues related to domestic violence and abuse – issues that have been reported so often in troubling ways recently. In my view, either one must conclude that there is no place for the application of Aboriginal customary law in contemporary Australian society (except perhaps in relation to sentencing) or take the other step to provide, in certain circumstances, that Aboriginal customary law is the right to be applied in sentencing and punishing certain offenders. Where. The land belongs to a land rights group based on traditional ownership, and I think it is appropriate that indigenous customary law be applied in this area. It would be enforced by the elders of the tribe who traditionally control this region. In my view, the scope [of tribal jurisdiction] should be as broad as possible. On the one hand, delegating these powers to traditional owners and, on the other hand, removing them in the most important and important cases is in fact of no practical value. [24] While the courts have rightly been scrutinized when condemning decisions such as the FYI case of the “promised bride” in Yaarralin, I am concerned that customary law itself has come under scrutiny. The point here is that not only is it wrong to discredit customary law on the basis of sentencing decisions, but it is also a step backwards to reduce the recognition of a common law system because customary law actually creates structure and order in Aboriginal communities. We need to look at issues of indigenous customary law from a broader perspective.

While Indigenous customary law offers great potential in terms of punishment options in the context of the criminal justice system, it has great potential to give Indigenous peoples self-determination. Customary law can be a means of self-government and dispute resolution – it is a way for communities to control their own lives. Human rights education is an essential part of an educational process aimed at bringing knowledge systems closer together. For example, while the parallel is not accurate, if I may wear my other hat for a minute, that of Commissioner of Racial Discrimination, my office is currently developing human rights resources for teachers and community leaders to combat discrimination in Muslim communities. Although the Australian government believes that focusing on universal human rights can help strengthen cohesion and mutual understanding between different cultural groups, the same projects have not been funded for indigenous peoples and communities. Recently, there have been high-profile cases where the courts have come under scrutiny for inadequate sentences for very serious crimes. One such case is Queen`s “Promised Bride” v. GJ, in which the defendant was sentenced to 24 months in prison with 23 months` probation for a conviction for sexual intercourse with a minor and aggravated assault. Although the defendant pleaded guilty to both counts, the mitigating arguments were that he was exercising customary law and did not know that what he was doing was contrary to law.

An information campaign supported by urban and remote indigenous peoples is essential. By that I mean that all of us, within our respective organizations and roles, should take every opportunity to clarify and correct misunderstandings about Aboriginal customary law. We must use all public forums to provide a clear definition of the common law and its role in Aboriginal society. And the message must be taken to faraway Australia. Most indigenous people in communities are unaware that there is a common law debate – let alone that the Australian government is implementing the Crimes (Bail and Sentencing) Amendment Bill 2006, which seeks to remove the common law from bail applications and convictions. How can they defend customary law if they are not part of the debate? As pointed out by a sub-committee of the Queensland Law Society, a law establishing due process to prove customary law or community opinion has become one: in 2004, the Northern Territory Government took steps to address shortcomings in the introduction of the common law into the criminal justice system by creating a formal mechanism to consider customary law issues in sentencing. Aboriginal offenders. The laws provided that the court could obtain such information only if the party wishing to provide the information informed the other party and each of the other parties had an opportunity to respond. In addition, the usual information is then provided in the form of an affidavit, affidavit or affidavit.

105. Impact of non-recognition on traditional authority. However, it is often argued that the non-recognition of Aboriginal customary law by the common law has had adverse effects that go far beyond specific problems such as these. A subcommittee of the Queensland Law Society noted: In a changing society, it is important for Indigenous peoples to be aware of the legal systems that govern us – Aboriginal customary law and the Australian judicial framework. As we know from experience, you need to know the law to comply with its rules and obligations. 111. The need for consistency and clarification of the law. The strength of the case for recognition of indigenous customary law is reflected in the efforts of judges, magistrates and other law enforcement agencies in a number of cases to accommodate indigenous customary law, even without legislative support.