ATSI CUSTOMARY LAWS

CUSTOMARY LAW

principles and procedures that have developed through general usage according to the customs of a people or nation, or group of nations and treated as obligatory

WHY IS IT IMPORTANT FOR AUS LAW TO RECOGNISE ATSI PEOPLE CUSTOMARY LAW

it is important because it respects culture, ensures for justice and helps reduce criminal rates, jail rates, appropriate justice can lead to better outcomes and low reoffending

THE DIVERSE NATURE OF CUSTOMARY LAWS

• No single system of ATSI law

• Australia is a large land mass, as a result every separate community developed their own laws

• difference between traditional laws and customary laws

SPIRITUAL BASIS OF CUSTOMARY LAWS AND SIGNIFICANCE OF LAND AND WATER

• The Dreaming: source of ATSI customary laws (rules, morals, technique, values, history of how land, animals, plans and sky created, religious element)

• due to secrecy and oral nature of ATSI customary laws, it is hard to describe these laws and their links to the dreaming.

FAMILY AND KINSHIP

• Family relationships, including all extended family relationships

• many customary laws relate to marriage, child rearing, religion, family/kinship

• family relationships are very important in ATSI communities as it is through these relationships that people are able to pass and follow customary laws

RITUAL AND ORAL TRADITIONS

• Customary laws passed down orally through rituals.

• Stories, songs, and dance help people remember laws.

• Knowledge of laws varies by age, gender, and experience.

MEDIATION AND SANCTIONS

• Mediation: Alternative dispute resolution involving a neutral third party to help parties reach agreement.

• Sanction: Penalty for breaking the law.

• Aims to foster harmony and strengthen relationships.

• ✱ No win/lose outcome

• ✱ No binding decisions

CONCILIATION AND MEDIATION

• Used to resolve disputes in court.

• Reflects ATSI emphasis on restorative justice and community healing.

MITIGATING FACTORS

• Customary context may reduce punishment.

• Examples:

  • Offence due to customary obligation.

  • Victim provoked by customary breach.

  • ATSI background or disadvantage considered.

CIRCLE SENTENCING

• Alternative sentencing for ATSI offenders to avoid jail.

• Involves community members, elders, victim, offender, police, and magistrate.

• Used for first-time summary offenders who plead guilty.

EFFECTIVENESS OF INTEGRATING ATSI CUSTOMARY LAW

• Not fully effective.

• E.g., ATSI man jailed for customary marriage to a 14-year-old (legal under custom, illegal under Australian law).

• Conflict between customary and statutory law.

• “By then he was 118 and she was 14”, he faced a 16 year jail sentence for something he didnt know was wrong

• Source: When Aboriginal And Western Laws Collide (Creative Spirits, 2021)