1.2 Sources of Contemporary Law - Indigenous Customary Law Flashcards
what is customary law, and how are the developed?
developed through general use over time according to patterns of behaviour of people or nations. they differ from community to community and are handed down from generation to generation orally.
what is kinship?
family and extended family relationships, which dictates how people in a group behave towards each other
what do ritual and oral traditions relate to and dictate?
relate to marriage, child-rearing, religion, and family relationships. remembered through song, dance, and stories, passed down by, and to, appropriate members at, often sacred, ceremonial meetings. these explain concepts such as creation, why events happen, tribunal boundaries, family relationships, cultural practices, and forbidden acts
what are mediations and sanctions?
order maintained via self-regulation and consensus. decisions of enforcement guided by elders who apply sanctions (penalties/punishments) which may conflict with Australian law.
what is circle sentencing?
bring together magistrate, prosecutor, defence lawyer, victim, offender, and elders to bring the offender to account, in order to keep offenders out of jail by offering alternative punishments/penalties.
what is the process of the Youth Koori court?
everyone talks about what help is needed & what to do to stay out of trouble. the magistrate approves the plan (usually 6-12 months). individuals return to court to check the progress and make any amendments. upon completion, a progress report is written & given to the court, which helps the magistrate decide how to sentence you → consider offence, actions in completing the plan, personal circumstances, & criminal record.
what was the Youth Koori court developed as a response to?
established in 2015 in Parramatta Children’s Court as a response to significant over-representation of Aboriginal youth in the criminal justice system → following success, court expanded to Surry Hills Children’s Court (Feb 2016)
how can an offender be heard in circle sentencing?
offenders must be part of, or have a strong connection to the Indigenous community, plead guilty, acknowledge the wrongdoing, and take responsibility for actions
what are the advantages of circle sentencing?
offer alternative punishments that help the offenders stay out of jail (e.g. rehabilitation centre to adjust their behaviour), increases the authority of the elders, and trust/respect between the magistrate/elders & the offender
how effective is the Youth Koori court in reducing Aboriginal incarceration rates and recidivism?
(according to “Youth Koori Court Expanded … Indigenous Justice Package” SMH, 2022)
2022 report found that participants were 40% less likely to be given a prison sentence, compared to in the Children’s Court, 2021 report found that half of young people in Australian detention sentences were Indigenous peoples. those who undergo circle sentencing, were 3.9% less likely to re-offend in 12 months.
what are the disadvantages of circle sentencing?
sentencing differently to other courts (can cause inconsistencies), different punishments/outcomes to state court.
what is recidivism?
the tendency of a convicted criminal to reoffend
