Advantages And Disadvantages Of Aboriginal And Torres Strait Islander Law

Compare and contrast the arguments that have been advanced for and against the incorporation of Aboriginal and Torres Strait Islander Law in the criminal justice system.

Introduction

The gross over representation of indigenous people in the Australian criminal justice system (CJS) is so disturbingly evident that it is never the source of debate. Rather it is the starting point of discussions centring on the source and solutions to this prominent social, cultural and political issue. Discourse surrounds not only the economic and social disadvantage of indigenous communities, but also the systemic racism and continuing intergenerational trauma resulting for the unjust colonisation of a nation which has profited whites at the detriment to indigenous people throughout history. In respect to the currently CJS, trepidations are raised by indigenous communities around the lack of culturally diverse laws and punishments within the system. The overtly western system does not provide a viable space for indigenous

This means looking back at the arrival of Europeans, particularly the legal and political system that were used in the apparent legitimisation of the invasion. Colonisation occurred in 1700’s when Australian soil first became ‘occupied’, not by the indigenous Australians who had lived with and upon the land for centuries before but rather by European colonial fleets who had been in search of undiscovered land. The act of occupation occurred through compliance with international law and the legal doctrine of discovery of uninhabited land; terra nullius. The Australian land was declared void not of inhabitants but rather of ‘organised society united permanently for political action.’ It was declared that those who inhabited the land when it was discovered had no local laws, and as such no