How have Aboriginal and Torres Strait Islander Customary Laws been Integrated?
Customary laws are rules and regulations that are
set through tradition and societal acceptances. This system was deemed
primitive in the early days of European settlement in Australia. However
although Aboriginal customs and Australian laws are vastly different systems
that were born from two different ideologies, in recent times, Australian law
has adapted and adopted some customary laws from the Aboriginal and Torres
Strait Islander people (ATSI) as they hold true and effective in many
situations. This has been to the extent that such systems as mediation and
circle sentencing have come into full effect and that the influence by ATSI
laws is notable in contemporary Australian law.
ATSI people often faced a 'double punishment' as
they would not only be sanctioned by the laws of Australia but would
consequently be punished by ATSI customary law. Due to what people deemed as
unfair treatment sentencing towards aboriginal people has changed dramatically.
This was due mainly to the New South Wales Law Reform Commission in 2000 that
released a report that recommended judges take into consideration of the
possibility of double punishments and as such sentencing should reflect this
consideration. In essence ATSI customary sanctions have now been partially
integrated into the Australian legal system.
Mediation would be seen by many people as the
largest integration of ATSI law in contemporary Australian law. Mediation is
the process where a 3rd party, often someone of high influence and knowledge
(Judges/Magistrates/Ombudsman for Australian law and elders in ATSI law),
assists the two parties in a dispute by helping them come to a solution. Modern
day Australia sees this system of dispute resolution in many places such as
industrial relation disputes, family disputes and regular civil disputes. This
blatant adoption of ATSI customary law is due to the effectiveness of the system
and fairness of solutions that are provided.
In the traditional circumstances ATSI people would
have elders converge and discuss punishments and sanctions for an offender in a
community. They used their knowledge and judgement to not only persuade the
offender to not commit an offence again but lay down a fair and accepted
punishment for the offenders crimes. This system of sentencing has been adapted
by Australian law into a system called 'Circle Sentencing'. This allows for
ATSI people to have more respect towards law as elders are now involved in
sentencing in some cases and will allow for a more acceptance of crimes. Elders
sit around a circle alongside a magistrate or judge, with the perpetrator and
the victim as well as their 'prisoners friend' or legal adviser. This system
allowed aboriginal elders and inevitably aboriginal communities, to have more
of an input into the judicial process that they are often left out of. It takes
into consideration their perspectives which can be different to the European
perspectives of sanctions and behaviours. Its also been said to reduce
re-offending crime rates as the offenders are named and shamed in front of
their elders. This circle sentencing procedure is now a mainstream process for
many rural and remote communities.
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