Aboriginal and Torres Strait Islander peoples' customary law

Sources of Contemporary Law

Diverse nature of customary law

Change and development over time Different cultures/languages/beliefs/practices no single system of law, but some common aspects among groups Law is based on tradition, ritual and socially acceptable conduct. Most customary law deals with marriage, childrearing, religion, family and kinship.

Spiritual basis of customary law

Aboriginal myths usually recount the wanderings of supernatural beings in the creative period, conventionally known as the Dreamtime or the Eternal Dreaming.
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Land and water are central to Aboriginal spirituality, and provides Aboriginal people with their connection to the Dreaming.

Family and kinship

Aboriginal society and life is made up of elaborate kinship relations or structures. The kinship systems are believed to have been established in the Dreamtime and provide a framework for law enforcement through processes of reciprocity. I t is believed that Aboriginal communities were divided into sections or sub-sections (kin groups) by the ancestors.

Ritual and oral traditions

ATSI laws are passed on from one generation to the next by word of mouth. Laws are explained and reinforced through the performance of rituals and ceremonies Different people within a community have different levels of knowledge about the laws and related beliefs.

Mediation and sanctions

Family are central to dispute resolution Discussion and meetings take place to assist dialogue between the different parties and to decide on the correct course of action. Mediation between the parties is an important part of this process.! Elders guide decisions about punishments.

Mediation and sanctions (cont.)

Examples of punishments are: shaming exile spearing/beating death (less frequent today)

Relevance of ATSI customary law to contemporary Australian law

A key problem - everyone should be treated equally under the law. There is increasing recognition of indigenous people as landholders, but still reluctance to formally incorporate customary law into Australian law. Aspects of conciliation and mediation have been incorporated into Australian law Sometimes if a ATSI person is charged with a crime customary law may be used.