law sources and access to law (slides six)

Question 1

what are the three phases of origins of law? (1)

Answer 1

(1) preoccupation - aboriginal law
- aboriginal customary law applied
- over 500 aboriginal nations existed

Question 2

what are the three phases of origins of law? (2)

Answer 2

(2) british declaration of terra nullius
- brits declared terra nullius, meaning ‘land belonging to nobody’

Question 3

what are the three phases of origins of law? (3)

Answer 3

(3) post british occupation
- first fleet arrives, NSW set up as a penal colony, and military law is applied

Question 4

what is aboriginal customary law?

Answer 4

• based on Kinship – system of sharing duties, responsibilities, and behaviour within communities
  - a based complex belief system with ties connecting every aspect of communities with land – ‘the
  dreaming’
  - oral law - not written but passed to generations through rituals + stories
  - no land ownership – land precious and cannot be owned, instead part of land and custodians
  - use of mediation and tribal meetings to discipline community members
  - harsh penalties such as payback, spearing, or death

Question 5

what is terra nullius?

Answer 5

• latin, ‘land belonging to no one’
  - international legal term for state/country having no sovereignty over land
  - Land ownership was key principle of british law, at odds with aboriginal belief of spiritual nature of land
  - brits therefore free to occupy australia + take possession of the land
  - aboriginals not recognised as inhabitants as they had no recognisable government/legal
  system or claim to land
  - dispossession of land through
  declaration of terra nullius remains cornerstone of conflict today

Question 6

are any aboriginal customary laws recognised in the aussie legal system today?

Answer 6

• 1986, the aussie law reform commission recommended that ATSI laws should be recognised where appropriate, but no separate ATSI laws as it’d undermine the aussie legal system
  - some (but not that many) elements of ATSI customary law have been applied in contemporary aussie law:
• circle sentencing: elders and a magistrate together decide on a punishment for offenders
• native title: ATSI people who live customary lifestyles on ancestral land have right to control that
  land
• ATSI customary law marriages: recognised as legally de facto relationships since 1986