Aboriginal and Torres Strait Islander people in Australia can be treated un equal from, criminal justice system, and certain a law must be addressed. The customary Law reflects equality amongst indigenous and non-indigenous Australians. This essay will explore the customary law in Australia, and the benefits and critiques that is proposes. First the essay will explore what the customary law in Australia is. Secondly it will explore other countries that have allowed indigenous people to implement their own justice system in practice, it will explore the indigenous right that were recognized in New Zealand. It will then then argue that customary law should be used in Australia and be strengthened in aboriginal communities however there are some …show more content…
implementations to this, and guide lines must be in place. It was discuss the implications that aboriginal Australian have in the criminal justice system, and with this customary law needs to be strengthened. Lastly it will explore rational choice theory and conflict theory, and how the two theories can connect to the situation that is in Australia has with the customary law for aboriginal communities. Aboriginal and Torres Strait Islander individuals contribute to our ongoing national development and identity in Australia, they also hold a unique place in Australian history. (Bradfield, 2003). The customary law is best defined as, Indigenous traditions and systems of law and governance across all areas of cultural life. (Law Reform Commission of Western Australia 2006). Thus the customary law, reflects and relates to the system and practices amongst aboriginal Australians, which has produced over time to accept moral norms in aboriginal societies. Aboriginal and Torres Strait Islander individuals contribute to our ongoing national development and identity in Australia, they also hold a unique place in Australian history. (Bradfield, 2003). Knowing that the Australian legal system understands and respects our cultures, our heritage, and our histories, can be beneficial in aboriginal and non-aboriginal communities (Thornberry, 2002). In New Zealand Indigenous laws were introduced in the justice system, thus Indigenous land rights were recognized in the Treaty of Waitangi (Goodin, 2000). Recognition of Aboriginal title occurred very early in New Zealand's colonial history. Its development since then has reflected the interplay between common law rights and Te Tiriti o Waitangi (Goodin, 2000).Controversies over indigenous land rights have tended to revolve around the means by which Māori lost ownership, rather than whether they had ownership in the first place. Hence the introduction to indigenous laws in New Zealand, has become beneficial for the county, as land rights and laws were strongly acknowledge. Customary law for aboriginal individuals is extremely important, however it must be used in appropriate manner, with guide lines in place to ensure equality in non-indigenous and indigenous Australians (Thornberry, 2002).
There is problematic issues regarding violence and human right in Indigenous communities. It well known statistic about the over-representation of Indigenous men, women and children in criminal justice system, and the high crime rates in aboriginal communities. (McIntyre, 2005). The customary law proposes for regulating the behavior in aboriginal communities, hence is beneficial, and minimizes violence and arrests, and can allow aboriginal communities to have their say. Although many Australian human rights lawyers argue that Aboriginal customary law must be 100 per cent consistent with international human rights norms (McIntyre, 2005). Hence an important note, is that human rights are only a relatively recent concept when compared to Aboriginal culture, thus it is important note that human rights are essentially a creation of the last hundred …show more content…
years. Therefore the Aboriginal Customary Law can be recognized within our legal system in Australia however it poses many legal barriers for aboriginal communities (Blagg, Harathunian, & Morgan, 2002).
First how does the legal system ensure consistency in the circumstances in which Courts accept that Aboriginal Customary Law. Also it may also question how the customary law is incorporated into the legal system in a way that does not breach the principles of non-discrimination and equality before the law (Blagg, Harathunian, & Morgan, 2002). There are many issues regarding the customary law in Australia, hence aboriginal communities, would like to see the customary law strengthened, and it is hoped that such moves may assist them to deal with specific problems in their community (Blagg, Harathunian, & Morgan, 2002).
There has been many issues regarding the different treatments that aboriginals and non-aboriginals receive whilst in custody. There has been many ongoing issues, regarding the maltreatment and human rights of indigenous Australians that are in the care of authority figures. Many Australian detention facilities, particularly in regional and remote areas, and lacking the appropriate treatment conditions for aboriginal Australians, examples of these are that they are dirty, overcrowded, lack air-conditioning, this conditions do not provide Aboriginal and Torres adequate
care. Discrimination in Australia, is not a new term, it happen more often than we think. Especially those who are affected are aboriginal. Hence, aboriginal communities, are in need of the customary law to be strengthen, and to allow aboriginal Australians, to be able to speak up about this issue. However the customary law, as reflects the acceptance of moral norms in Aboriginal societies, and this can allow it to regulate human behavior, and connect people with the land and with each other, through a system of relationships, whether it is the government, law, and Australian criminal justice system. There has been many issues regarding criminal activity in aboriginal communities, and ongoing violence, for this laws must be put in place. The customary law for aboriginal individuals and communities is great asset, and is extremely important in the legal system in Australia. Rational choice theory seeks to understand how criminals decide to commit the crime or not, before it happens. Hence do aboriginal individuals relate and focus on the criminal justice system to relieve them of their retribution to the criminal justice system. A problem with rational choice theory it doesn’t answer who the offender is, what the offender thinks when committing the crime, it only answers why the crime is committed and how to prevent further crime appearing. Therefore this theory may suit best in terms of preventing further crime in aboriginal communities, and why the crime rates are particularly high in aboriginal communities. Another theory is conflict theory as Conflict theory emphasizes the role of coercion and power in producing social order (Bartos, Wehr, 2002). Thus aboriginal communities striving to gain social order into heir communities, with the customary law, can become problematic. This perspective is derived from the works of Karl Marx, who saw society as fragmented into groups that compete for social and economic resources. Social order is maintained by domination, with power in the hands of those with the greatest political, economic, and social resources (Bartos, Wehr, 2002). Thus aboriginal communities may not have so much power, and non-aboriginal communities, or may not have particular social resources to illuminate crime rates (Bartos, Wehr, 2002). According to conflict theory, inequality exists because those in control of a disproportionate share of society’s resources actively defend their advantages. Groups and individuals advance their own interests, struggling over control of societal resources (Bartos, Wehr, 2002). Controversy may currently exist in the Australia, with the customary law for aboriginals that are living in Australia. The customary law, reflects and relates to the system and practices amongst aboriginal Australians, which has produced over time to accept moral norms in aboriginal societies. The customary law for aboriginal individuals and communities is great asset, and is extremely important in the legal system in Australia. Rational choice theory seeks to understand how criminals make before the crime that benefits the. Hence do aboriginal individuals relate and focus on the criminal justice system to relieve them of their retribution to the criminal justice system. Another theory is conflict theory as Conflict theory emphasizes the role of coercion and power in producing social order.
In conclusion, as a cornerstone of Australia legal system, the Mabo case had profound effects on protecting Aboriginal people. After twenty-five years of development, the situation is getting more and more better. However, the government can still have more powerful and forceful measures to improve those people’s
The National Apology of 2008 is the latest addition to the key aspects of Australia’s reconciliation towards the Indigenous owners of our land. A part of this movement towards reconciliation is the recognition of Indigenous Australians and Torres Strait Islanders rights to their land. Upon arrival in Australia, Australia was deemed by the British as terra nullius, land belonging to no one. This subsequently meant that Indigenous Australians and Torres Strait Islanders were never recognised as the traditional owners. Eddie Mabo has made a highly significant contribution to the rights and freedoms of Indigenous Australians as he was the forefather of a long-lasting court case in 1982 fighting for the land rights of the Torres Strait Islanders. Eddie Mabo’s introduction of the Native Title Act has provided Indigenous Australians with the opportunity to state claim to their land, legally recognising the Indigenous and the Torres Strait Islanders as the traditional owners.
Toronto: Pearson Prentice Hall. The Justice System and Aboriginal People: Child Welfare. n.d. - n.d. - n.d. The Aboriginal Justice Implementation Commission. Retrieved December 12, 2013, from http://www.ajic.mb.ca/volumel/chapter14.html.
Struggles by Aboriginal and Torres Strait islander people for recognition of their rights and interests have been long and arduous (Choo & Hollobach: 2003:5). The ‘watershed’ decision made by the High Court of Australia in 1992 (Mabo v Queensland) paved the way for Indigenous Australians to obtain what was ‘stolen’ from them in 1788 when the British ‘invaded’ (ATSIC:1988). The focus o...
In doing so, we are also blocking out people who have the potential to bring even more cultural diversity into the community. If we honestly believe that we are a generous and multicultural nation, it’s time we show it by empathising with our fellow human beings. In order to improve the conditions in detention centres there must be a change to our unnecessarily harsh system. We need rules to be enforced, such as; a maximum 30 day time limit, and the people that are detained must be let out within this time frame. Within this time, health, character and identity checks must be completed. Shutting down isolating and remote detention centres. Speeding up the processing system. Asylum seekers must be given the opportunity to communicate with the outside world and have full access to legal advice and counselling. This means that telephones, internet and external activities need to be an option. Unaccompanied minors also need to be a priority. It is time that Australia treats our neighbours with all the dignity and respect that they finally
The purpose of this paper is to examine why the justice system fails for First Nations persons and alternative rehabilitation methods used by Aboriginal people, comprised of Aboriginal people, for Aboriginal people, in hopes to rehabilitate offenders and prevent criminal behavior in the Aboriginal community from precontact to today. Through the attempts of Aboriginal people to take control of their own destiny’s in the ever going struggle to attain self-government I will examine the aims and structure of one of these alternative rehabilitation methods, the Sentencing Circle used today to address the need to return to community based “Restorative Justice Programs” in the Aboriginal community
The merits of both the adversarial and inquisitorial system will be explored throughout this paper. The Australian rule of law best describes as all law should be applied equally and fairly. The five vital operations of the rule of law includes fairness, rationality, predictability, consistency, and impartially. The adversarial system adopts these operations by having a jury decide on the verdict and the judge being an impartial decision maker. In contrast, the inquisitorial system relies heavily on the judge. This can result in abusive power and bias of the judge when hearing evidence and delivering verdicts. The operations of the rule of law determine why the rule of law is best served by the adversarial system in Australia.
Despite the decreasing inequalities between men and women in both private and public spheres, aboriginal women continue to be oppressed and discriminated against in both. Aboriginal people in Canada are the indigenous group of people that were residing in Canada prior to the European colonization. The term First Nations, Indian and indigenous are used interchangeably when referring to aboriginal people. Prior to the colonization, aboriginal communities used to be matrilineal and the power between men and women were equally balanced. When the European came in contact with the aboriginal, there came a shift in gender role and power control leading towards discrimination against the women. As a consequence of the colonization, the aboriginal women are a dominant group that are constantly subordinated and ignored by the government system of Canada. Thus today, aboriginal women experiences double jeopardy as they belong to more than one disadvantaged group i.e. being women and belonging to aboriginal group. In contemporary world, there are not much of a difference between Aboriginal people and the other minority groups as they face the similar challenges such as gender discrimination, victimization, and experiences injustice towards them. Although aboriginal people are not considered as visible minorities, this population continues to struggle for their existence like any other visible minorities group. Although both aboriginal men and women are being discriminated in our society, the women tends to experience more discrimination in public and private sphere and are constantly the targeted for violence, abuse and are victimized. In addition, many of the problems and violence faced by aborigin...
Barsh, R. 2005. Aboriginal peoples and the justice system: Report of the national round table on Aboriginal justice issues (Book Review). Great Plains Research, 359-362.
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
Indigenous Australian land rights have sparked controversy between Non Indigenous and Indigenous Australians throughout history. The struggle to determine who the rightful owners of the land are is still largely controversial throughout Australia today. Indigenous Australian land rights however, go deeper than simply owning the land as Aboriginal and Torres Strait Islanders have established an innate spiritual connection making them one with the land. The emphasis of this essay is to determine how Indigenous Australian land rights have impacted Aboriginal and Torres Strait Islander people, highlighting land rights regarding the Mabo v. the State of Queensland case and the importance behind today’s teachers understanding and including Indigenous
On the 6th of June 1992 The high court of Australia made the decision to overturn the doctrine of Terra Nullius, Mabo v Queensland (No2) (1992) 175 CRL 1, this decision caused a very significant impact on Australia’s Law and legal History. It was the first time since British settlement in 1770 that native title was recognised in Australia for Indigenous Australians. Native title refers to land title rights indigenous Australians have with land that has cultural significance to them. The decision ruled in favour of the common law doctrine of Aboriginal title.
Since the time of federation the Aboriginal people have been fighting for their rights through protests, strikes and the notorious ‘day of mourning’. However, over the last century the Australian federal government has generated policies which manage and restrained that of the Aboriginal people’s rights, citizenships and general protection. The Australian government policy that has had the most significant impact on indigenous Australians is the assimilation policy. The reasons behind this include the influences that the stolen generation has had on the indigenous Australians, their relegated rights and their entitlement to vote and the impact that the policy has had on the indigenous people of Australia.
Walker, Y. (n.d.). Aboriginal Family Issues. Retrieved November 19, 2013, from Australian Insitute of Family Studies.
An Panel of Experts suggests if the Aboriginal would be recognized in the Constitutional recognition, the section of 25 or 51 be repealed and should be rewritten with something simple and effective like section of the Australian Constitution “Recognition of Aboriginal and Torres Strait Islander peoples”. Another laws should be implemented which should stop racism and discrimination of any kind.