Sources of contemporary Australian Law (aboriginal and torres strait islanders customary law) Flashcards
Who is classified as an indigenous Australian?
- Descendant of original inhabitants
- identifies as an Indigenous person
- Is accepted by the community as such
Note a person must have all three things to classify
what is customary law?
The systems and practices which have developed over time from accepted moral norms in behavior, mandate specific sanctions for non compliance, and connect people with the land and each other.
- They are passed down by word of mouth and are not written down
- different language groups and clans have different concepts of customary law
what is the diverse nature of customary laws
majority of Aboriginal and Torres Strait Islander communities will generally see that disputes are not restricted to individuals.
The resolution of the dispute, involving negotiation, mediation and conciliation, will involve everyone in the community.
what is a spiritual basis
ASTI laws are very linked to the dreaming. This consists of stories that explain almost every aspect of aboriginal life and culture and form of the law including
- How a place or being was created, formed or transformed by the ancestor spirits
- Why the land looks as it does
- Which animals cannot be eaten and why
what is family and kinship
A complex system that determines how people relate to each other and their roles, responsibilities and obligations in relation to one another, ceremonial business and lands.
Kinship = who marries who, ceremonial business and land
what are the effects of kinship
- Dictates everyday behaviour
- About politeness and respect
- Elders - accorded to particular respect
Significance of land and water:
Aboriginal and Torres Strait Islander peoples view land ownership as a group responsibility.
Water bodies are cared for by the group under customary law.
Each group has distinct responsibilities for their land and water, tied into traditional laws and stories.
Failure to follow these laws is seen as disrespect for the land and traditional values.
Ritual and oral traditions:
Stories, songs and dances are used to help people remember the laws of their group.
Different people in the group know different laws. For example, women have knowledge of some laws that they pass on to girls at a certain age.
mediation and sanctions:
Where sacred law has been broken, elders are often directly involved in applying sanctions.
A sanction is a penalty imposed on those who break the law, usually in the form of a fine or a punishment.
Punishments range from ridicule and shaming to exile, spearing or death.
relevance to contemporary Australian law
Conciliation and mediation are increasingly used to resolve disputes in criminal, consumer and employment law.
Mitigation may be raised in cases with ASTI peoples as the customary laws have to somewhat comply with contrary australian laws
Mitigation refers to making the severity of a sentence milder or less severe
