Although 30 years have elapsed since the report was published, its recommendations have, by and large, been ignored. Few in Australia understand the context and true meaning of customary law.
Enter your keywords You are here 7. The early Australian experience demonstrates this clearly. Despite the willingness of particular administrators or judges to take account of Aboriginal traditions and customary laws, the prevailing attitude was one of total non-recognition, accompanied in most cases by blank incomprehension.
These questions are not confined to recognition of Aboriginal customary laws. Aboriginal societies are, in a number of respects, very different: Characteristics of Aboriginal Customary Laws. There are no manuals or handbooks similar to those found in other countries, in particular in Africa.
There is no code of customary law such as the Natal Code of Native Law. But there is a large body of material on Aboriginal traditions and ways of life, including detailed studies of kinship, religion, and family structures.
As to the former question there is substantial agreement in principle, although there is disagreement on some questions, and more is known about some groups than others.
Elkin and Hoebel emphasised the role of tribal elders or headmen. In short, the community had no recognised political leaders, no formal hierarchy of government. There was no institution to deal with such disputes, but there was a community of people with a set of common values and a system of formally defined rights and obligations.
The point has been made about very different indigenous cultures and traditions. Comaroff and Roberts point out that: The stated rules found in Tswana communities, known collectively as mekgwa le melao ya Setswana, constitute an undifferentiated repertoire, ranging from standards of polite behaviour to rules whose breach is taken extremely seriously Mekgwa le melao thus do not constitute a specialised corpus juris Law and religion were intimately bound up in Aboriginal society It had been argued by the Solicitor-General that there must be a definable community, and also some recognised sovereignty giving the law a capacity to be enforced, before a system could be recognised as a system of law.
At any rate, he contended, there must be the outward forms of machinery for enforcement before a rule can be described as a law. He did not deny the deep religious sanctions which underlay the customs and practices of the aboriginals: The inadequacy of the Austinian analysis of the nature of law is well known The argument amounted to saying that in a system where people merely behave in certain predictable or patterned ways, apparently without the inclination to behave otherwise, and with no recognizable section of the community design ed for the repression of anti-social behaviour, or the application of compulsion to ensure adherence to the pattern, or the determination of disputes, there is no recognizable law.
Where, it was asked, was there any indication of authority over all the clans, and where, beyond the influence of the elders, was the authority within each clan? Feuds were admitted to be common: None of these objections is in my opinion convincing The specialization of the functions performed by the officers of an advanced society is no proof that the same functions are not performed in primitive societies, though by less specially responsible officers.
Law may be more effective in some fields to reduce conflict than in others, as evidently it is more effective among the plaintiff clans in the field of land relationships than in some other fieldsCustomary law in Australia relates to the systems and practices amongst Aboriginal Australians which have developed over time from accepted moral norms in Aboriginal societies, and which regulate human behaviour, mandate specific sanctions for non-compliance, and connect people with the land and with each other, through a system of relationships.
Speeches on Aboriginal and Torres Strait Islander Social Justice Issues Click here to visit the Aboriginal and Torres Strait Islander Social Justice section.
Aboriginal Customary Law — Criminal Law, Evidence and Procedure (ALRC DP 20) in The focus of ALRC Report 31 (tabled 12 June ) was whether it would be desirable to apply, either in whole or in part, Aboriginal customary law to Aboriginal and Torres Strait Islander peoples—generally or in particular areas or to those living in tribal communities only.
Customary law Traditional Indigenous communities were very structured and the people within them abided by many ancestral laws and regulations.
Indigenous people believe that all their customary laws were established during the Dreamtime (the time of creation) by their ancestors.
The South West Native Title Settlement (the Settlement) is the largest native title settlement in Australian history. The Settlement will affect an estimated 30, Noongar People and encompasses approximately , square kilometres in the South West. While the Australian Law Reform Commissions’s report on the use of customary law for Aboriginal people was a great initiative, it was, in hindsight, a notion well before its time.