A comparison of australian law and customary law

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A comparison of australian law and customary law

During the course of the inquiry, three Discussion Papers were produced: Aboriginal Customary Law — Recognition? 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.

The report outlined that, with very limited exceptions, Aboriginal customary laws have never been recognised by general Australian law.

It reported that customary laws were a significant influence in the lives of many Aboriginal people. Customary law was and continued to be a series of dynamic and changing systems applying to different groups of Indigenous Australians.

The report highlighted that Aboriginal people must have the final say in the negotiation and consultation surrounding the recognition of customary law.

Key recommendations Criminal law A partial customary law defence, similar to diminished responsibility, should be introduced that would reduce a charge of murder to manslaughter in those cases where an accused acted in the well-founded belief that the customary laws of his or her Indigenous community required the act constituting the offence.

Aboriginal customary laws and traditions should be taken into account where relevant in determining criminal intent and in establishing whether a defence for example, provocation or duress to a criminal charge is made out.

Aboriginal customary laws should be taken into account in the exercise of sentencing discretion. An Aboriginal defendant should be able to give unsworn evidence unless the court finds that he or she will not be disadvantaged by giving sworn evidence.

Courts should have specific powers to hear evidence in private, to exclude certain persons from the court or to take other steps to protect secret information about Aboriginal customary laws where this is necessary. Criminal investigation More sensitive policing practices are required in Aboriginal communities.

A comparison of australian law and customary law

Special rules are required to protect Indigenous suspects under police interrogation and to help ensure the reliability and voluntariness of any admission or confession.

Admissions or confessions obtained in contravention of these rules would not be admissible unless a court was satisfied that, in the particular circumstances, the suspect understood the caution, understood the nature of the questions and did not answer merely out of deference to authority or under the influence of suggestion.

Traditional marriages Traditional Aboriginal marriages should not be generally recognised, but instead should be recognised for certain purposes, including: Children An Aboriginal child placement principle should be legislatively endorsed.

When decisions affecting the care or custody of an Aboriginal child are made, the child placement principle requires that preference be given to placing the child with a parent, a member of the extended family, or a community member who, under the customary laws of that community, has responsibility for the child.

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Indigenous courts The ALRC did not recommend a general scheme of Indigenous courts, but developed criteria to apply to any local justice systems in Aboriginal communities. Hunting and fishing The report set out precise guidelines to ensure traditional hunting and fishing interests are accorded appropriate priority under conservation legislation and under legislation relating to the commercial regulation of fisheries.

It recommended that Aboriginal people have access to non-Aboriginal land for the purposes of traditional hunting.

A comparison of australian law and customary law

Recognition As far as possible, Aboriginal customary laws should be recognised by existing judicial and administrative authorities, avoiding the creation of new and separate legal structures, unless the need for these is clearly demonstrated.

Government and Indigenous groups should work together to decide on the methods by which Indigenous customary laws are recognised. Between that time and mid, no significant steps were taken towards implementation despite the report having been strongly supported by Indigenous organisations.Comparative law: Comparative law, examination of comparative legal systems and of the relationships of the law to the social sciences.

The expression comparative law is a modern one, first used in the 19th century when it became clear that the comparison of legal institutions deserved a systematic approach, in.

The practice

The latest issue of the European Journal of International Law (Vol. 29, No. 3) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription.

Dinka customary law is significantly different in its purpose, structure and execution in comparison with Australian family law. There is, however, one major similarity between the two laws, that is, the. Historically, customary law has not been recognised as part of the canon of Australian law.

But, since the late twentieth century, the Australian Law Reform Commission () and the Law Reform Commission of Western Australia () have written extensive reports investigating the desirability of recognising the role of customary law in legal.

Aboriginal customary law and European law have been at odds since the first years of the European invasion, but only recently has the clash come into the open. Stuart MacMillan of the Aboriginal Resource and Development Services in the Northern Territory says that remote Aboriginal communities there.

The Interaction of Aboriginal Customary Laws and the Criminal Law The General Principle. Aborigines are subject to the general criminal law in Australia, and in the Commission’s view this should remain the position.

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