ATSI customary law

Question 1

diverse nature of customary law

Answer 1

ATSI - differences in their customary laws.
No singular Aboriginal nation and no single type of customary law
Has a complex legal system

Question 2

Spiritual connection with land and water

Answer 2

Considered land and water as very important

ATSI had no conception of personal land ownership

The land was their mother, fathers felt responsibility for the land
Aboriginal law and spirituality are intertwined with land.

There was a complex system of stories that gave the rules of living, the importance of family and kinship obligations, and the spiritual nature of things such as land/water

Question 3

family and kinship

Answer 3

As an individual moves out from their immediate family to the local group, they are able to identify all other members of the group with the same terms that apply to family.

Made possible by their system of kinship

Question 4

Ritual and oral traditions

Answer 4

passed down via their dreaming
system of stories that gave the rules for living, the importance of family and kinship obligations and the spiritual nature of the land and water.

Question 5

Meditation and sanctions

Answer 5

The process of parties in a dispute resolving the dispute.

punishment:
- Seen as harsh and brutal, but it ensured order and discipline.
- A number of unresolved legal issues flow specifically from the practice of customary Aboriginal punishment.

payback:
- Restore peace, assist healing and help parties move on.
- Payback is the most known form of customary law.
- Payback is still practised, conflicting with ‘white’ law.

Question 6

relevance to Australian law

Answer 6

Recognition of rights to the land-native title since Mabo

In sentencing: Aboriginal background can be taken as a mitigating factor that may lessen the severity of a sentence due to the socio economic disadvantage of ATSI in society.

Recognition of traditional marriages as de facto relationships

Aboriginal Child Placement Policy: means that an Aboriginal child should be adopted by an Aboriginal family rather than a non-Indigenous family in an attempt to preserve the culture and traditions of the child.

Question 7

circle sentencing

Answer 7

Used in criminal matters in NSW, when ATSI is accused
Not for people facing murder/sexual assault.

Must plead guilty to the charge

Aims to avoid jail time for ATSI offenders by bringing them together with elders, magistrate, police, offenders and victims
reduces barriers between Aboriginal communities and courts.