Indigenous Australian customary law

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Indigenous Australian customary law or Indigenous Australian customary lore refers to the legal systems and practices uniquely belonging to Indigenous Australians of Australia, that is, Aboriginal and Torres Strait Islander people.

Background and description

Indigenous peoples of Australia comprise two groups with very different histories, ethnicities and customs: Aboriginal peoples and Torres Strait Islanders. Torres Strait Islanders are "strictly monogamous mostly church-married". The most notable customary practice differing from usual practice among non-Indigenous Australians is that of adoption, known as kupai omasker, by members of the extended family or friends. The reasons differ depending on which of the many Torres Islander cultures the person belongs to.

Most studies have looked exclusively at Aboriginal law and lore, with regard to personal and social customs.

Aboriginal customary law developed over time from accepted moral and social norms within Indigenous societies. They regulate human behaviour, mandate specific sanctions for non-compliance, and connect people with the land and with each other, through a system of relationships.

Indigenous customary law is not uniform across Australia, and systems differ greatly between language groups, clans, and regions.

Within some Aboriginal Australian communities, the words "law" and "lore" are words used to differentiate between the Indigenous and post-colonial legal systems. The word "law" is taken to refer to the legal system introduced during the European colonisation of Australia, whereas the word "lore" is used to refer to the Indigenous customary system. Learned from childhood, lore dictates the rules on how to interact with the land, kinship, and community.

Aboriginal customary lore is intertwined with cultural customs, practices, and stories from the Dreamtime. Customs are passed on through the generations by means of cultural works such as songlines, stories and dance. Those cultural works are passed on by oral tradition. A report by the Australian Government in 1986 did not find any codified versions of Indigenous customary lore, but acknowledged that the existing knowledge of Indigenous Australian traditions may be sufficient to be considered as such.

Capital punishment

Before the arrival of Europeans, death sentences were carried out under Aboriginal customary law, either directly or through sorcery. In some cases the condemned could be denied mortuary rites.

Recognition by the colonial legal system

Customary law has not otherwise been relevant to the development of Australian common law by courts.

Legislative bodies since the late-twentieth century have investigated the concept of incorporating Indigenous laws more formally into post-colonial legal systems. Reports by the Australian Law Reform Commission and the Law Reform Commission of Western Australia have discussed the desirability of recognising customary law in matters involving Aboriginal Australians. In the Northern Territory, some statutes and courts make explicit reference to customary law where useful in identifying relationships and social expectations. These changes have sometimes been controversial, especially in cases where customary law is imprecise or infringes upon human rights.

On 17 July 2020 the Queensland Government introduced a bill in parliament to legally recognise the Torres Strait Islander practice of traditional adoptions (kupai omasker), which was passed as the Meriba Omasker Kaziw Kazipa Act 2020 ("For Our Children's Children") on 8 September 2020.

Land rights

Further information: Indigenous land rights in Australia

European settlers in Australia assumed the legal fiction of Australia as terra nullius during the period of colonisation. For that reason, lore was explicitly ignored by Australian courts, both during and after the colonial era.

In 1992, post-colonial law recognised Indigenous lore as giving rise to a valid legal claim in the Mabo decision, in which the legal fiction of terra nullius was discarded. While the court found that the crown held radical title over all land in Australia (including land subject to Indigenous legal claims), the High Court held that it would recognise customary legal rights to land; if and only if those legal rights had been maintained continuously since settlement, and not displaced by an inconsistent grant in title to another person (such as a grant in freehold). Indigenous customary claims to land are regulated by the Native Title Act 1993.

Regional examples

Arnhem Land

Further information: Australian Aboriginal culture § Arnhem Land

Madayin is the customary law of the Yolngu people, which embodies the rights and responsibilities of the owners of the law, or citizens (rom watangu walal, or simply rom). As well as the objects that symbolise the law, oral rules, names and song cycles, and the sacred places that are used to maintain, develop and provide education in the law. Rom and its accompanying ceremonies are concepts and practices shared by the neighbouring Anbarra people, also in Arnhem Land.

References

^ Australian Law Reform Commission (1986). The Position of Torres Strait Islanders and South Sea Islanders. Consideration of whether Aboriginal customary laws should be recognised in Australia. Retrieved 10 October 2021. {{cite book}}: |website= ignored (help)
Rigby, Mark (4 June 2020). "Torres Strait Islanders fear time running out for legal recognition of traditional adoptions". ABC News. Australian Broadcasting Corporation. Retrieved 9 June 2020.
^ Law Reform Commission of Western Australia (February 2006). Project 94 - Aboriginal Customary Laws. Quality Press. p. 7. ISBN 1-74035-056-1.
^ Australian Law Reform Commission (12 June 1986). "24. The Proof of Aboriginal Customary Laws". Recognition of Aboriginal Customary Laws. ALRC Report 31. Archived from the original on 28 September 2011. Retrieved 30 May 2011.
"The Law and the Lore". Working with Indigenous Australians. 19 February 2017. Retrieved 29 January 2020.
"Recognition of Aboriginal Customary Laws (ALRC Report 31): 21. Aboriginal Customary Laws and Sentencing: Aboriginal Customary Laws and the Notion of 'Punishment': 500. Traditional Punishments or Responses". www.alrc.gov.au. Australian Law Reform Commission. 8 August 2010. paragraph 500. Retrieved 16 April 2022.
Traditional Aboriginal Law and Punishment Archived 6 March 2009 at the Wayback Machine – Part V – Aboriginal Customary Law and the Criminal Justice System, Law Reform Commission of Western Australia – Aboriginal Customary Laws Discussion Paper
Community Welfare Act 1983 (NT) s 69; Sentencing Amendment (Aboriginal Customary Law) Act 2004 (NT) s 4.
Walker v New South Wales [1994] HCA 64, (1994) 182 CLR 45 (16 December 1994), High Court (Australia).
Coe v Commonwealth [1993] HCA 42, High Court (Australia).
"High Court rejects customary law defence in sexual abuse case". The World Today (ABC Radio). 19 May 2006. Retrieved 30 May 2010.
Rigby, Mark (16 July 2020). "Torres Strait Islander adoption practices bill introduced to Queensland Parliament". ABC News. Australian Broadcasting Corporation. Retrieved 16 July 2020.
"'Historic moment': Queensland now recognises traditional Torres Strait Islander adoption practices". SBS News. 9 September 2020. Retrieved 10 October 2021.
"About Yolngu". Nhulunbuy Corporation. Archived from the original on 20 February 2020. Retrieved 29 January 2020.
Long, Andrew Stawowczyk (1995), "1 transparency : col. ; 5.5 x 5.5 cm.", [Portrait of unidentified Anbarra people performing Rom ceremony...], Collection of photographs taken at opening of 'It's about friendship' - Rom, a ceremony from Arnhem Land exhibition at the National Library of Australia, Canberra, 5 January 1995., nla.obj-147351861, retrieved 29 January 2020 – via Trove
"ROM: An Aboriginal ritual of democracy". Australian Institute of Aboriginal and Torres Strait Islander Studies. Blurb of 1986 book by Stephen Wild. 20 January 2015. Retrieved 29 January 2020. The first ROM ceremony, a 'ritual of diplomacy', performed outside Arnhem Land was held when the Anbarra people..presented a Rom to AIATSIS in 1982.{{cite web}}: CS1 maint: others (link)

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