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Many wonder what the outcome wou…. Aboriginal youth are overrepresented in jails. Detention statistics make experts talk…. Australia's mandatory sentencing with its exact penalty system has been labelled raci…. Already a disadvantaged group in Australia, Aboriginal people's mental health suffers…. A royal commission in investigated Aboriginal deaths in custody over a year p…. Aboriginal tribal law is often seen as harsh and brutal, but it ensured order and dis…. If Aboriginal customary law and white law come together and recognise one another, they can change the direction everything is heading in.

In , the Australian Capital Territory Supreme Court deliberated about a test case brought by members of the Aboriginal Tent Embassy which was erected in in front of Parliament House in Canberra. In the test case the Court's Justice Kenneth Crispin found that "there is ample evidence to satisfy me that acts of genocide were committed during the colonisation of Australia".

In the full bench of the Federal Court [21] and later the High Court ruled that there was no law against genocide in Australia, nor does Australia have any effective remedies for crimes against humanity. Even worse is the fact that the counsel for the Prime Minister in the case argued that the Genocide Convention was deliberately not incorporated. A newspaper at the time stated that "accused war criminals However, the bill Australia passed to ratify the convention did not make genocide a crime under domestic law.

Consequently, the Aboriginal Tent Embassy plaintiffs in lost their case on appeal to the Federal Court. Forced removal of Aboriginal communities from their homelands , as happened when Western Australia closed "not viable" communities, fits the UN definition. Australia has one of the weakest protections of human rights in the Western world, implementing less than half the legal obligations of international human rights treaties.

Russian novelist Fyodor Dostoyevski said: "The degree of civilisation in a society is revealed by entering its prisons. Exploring the situation of Aboriginal people in prison by using the articles in this section, what reveals your research about the degree of civilisation in Australian society?

A study has shown that more police in Northern Territory communities reduced alcohol-related problems, but did little to 'invisible' crimes like marijuana use, sexual assault or stealing. Police in some communities are so under-resourced that police officers refuse to continue working there. The Indigenous Justice Clearinghouse is a national resource on Aboriginal justice.

It aims to promote discussion and disseminate relevant Aboriginal justice information to government policy makers and those working in the Aboriginal justice field. The Indigenous Law Centre was established in to develop and coordinate research, teaching and information services for Aboriginal people and the law. The ILC conducts legal research, publishes the Indigenous Law Bulletin and Australian Indigenous Law Review , develops curricula and teaching materials and aims to advance community legal education. The publications aim to provide critical commentary on the relationship between Aboriginal peoples and the law.

This principle was that. This principle originates in Philanthropic motives and a total ignorance of the peculiar traditional laws of this people.

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Grey commented:. To punish the Aborigines severely for the violation of laws to which they are ignorant, would be manifestly cruel and unjust, but to punish them in the first instance slightly for the violation of true laws would inflict no great injury on them….


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I imagine that this course would be more merciful than that at present adopted, viz. Continuing Judicial Doubts and Reservations.

The Law and the Lore

The Colonial Office entertained no doubts that Aborigines were to be treated as British subjects for all purposes, but the appropriateness and justice of applying this principle was questioned by members of the colonial judiciary even after the decision in R v Jack Congo Murrell. The case did not proceed and Bon Jon was handed over to the Protectorate to be educated.

In , an Aborigine was brought before the court for killing another Aborigine. Justice Cooper argued that he required a legislative direction if such cases were to be justiciable and the accused was discharged because no competent interpreter was available. According to Hasluck:. In spite of the indication given by the Secretary of State of his views, Hurt held to his own opinion regarding disputes between natives, and during his term no notice was taken of acts by natives against natives in accordance with their own law.

But there were cases in which severe penalties were imposed.

What is Aboriginal Law? - Hobart Community Legal Service : Hobart Community Legal Service

The Problem of Aboriginal Evidence. Applying British law to Aborigines produced special difficulties in the presentation of Aboriginal evidence. In theory Aborigines were British subjects, but in practice they were not, and perhaps could not be, given the same rights as British subjects in judicial proceedings. The paradox caused considerable concern to colonial administrators. Captain Grey put the problem thus:. The greatest obstacle that presents itself in considering the application of British Law to these Aborigines is the fact that, from their ignorance of the nature of an oath, or of the obligations it imposes, they are not competent to give evidence before a Court of Justice.

The fact of the Natives being unable to give testimony in a Court of Justice is a great hardship on them, and they consider it as such: the reason that occasions their disability for the performance of this function is at present quite beyond their comprehension and it is impossible to explain it to them. I have been a personal witness to a case in which a Native was most undeservedly punished for the circumstance of the Natives, who were the only persons who could speak as to certain exculpatory fact s, not being permitted to give their evidence ….

The Natives being ignorant of our Laws, of the forms of our Courts of Justice, of the language in which the proceedings are concluded, and the sentence pronounced upon them, it would appear that but a very imperfect protection is afforded to them by having present in the Court merely an interpreter … who knows nothing of legal proceedings and can be but very imperfectly acquainted with the Native language: it must also be borne in mind that the natives are not tried by a jury of their peers, but by a jury having interests directly opposed to their own and who can scarcely avoid being in some degree prejudiced against Native offenders … [57].

Attempts were made in South Australia, New South Wales and Western Australia to relax the rules regarding the administering of oaths and the admissibility of evidence for Aborigines, and in some instances to enable magistrates to award summary punishment in certain offences. By thus establishing inequality in the eye of the law itself between the two classes, on the express ground of national origin, we foster prejudices, and give a countenance to bad passions.

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In the British Aboriginal Protection Society commented on the paradox of regarding Aborigines as British subjects while at the same time refusing Aboriginal testimony, unless they had been converted to Christianity:. It is evident that the rejection of the Evidence of these Natives renders them virtually outlaws in their Native Land which they have never alienated or forfeited.

Introduction to Law: Indigenous Australians and the Law

It seems to be a moral impossibility that their existence can be maintained when in the state of weakness and degradation, which their want of civilisation necessarily implies; they have to cope with some of the most cruel and atrocious of out species, who carry on their system of oppression with almost perfect impunity so long as the Evidence of Native Witnesses is excluded from Our Courts. As this brief account reveals, most, if not all, of the debate was focused on the criminal law and on problems of Aboriginal evidence in criminal cases.

This obscured what was perhaps the more fundamental point, which was never questioned or debated — that is, the complete absence of recognition of Aboriginal rights to land, or of the recognition of Aboriginal customary laws in the civil law. Aborigines were not treated as trespassers on Crown land, but the Crown freely alienated land to settlers who then displaced local Aborigines, often by force.

Although Aborigines as British subjects had formal capacity to make contracts, to own property, and to sue in the courts, [65] in practice these facilities were irrelevant. Phases of the Non-Recognition Policy.

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Despite doubts and uncertainties, it was firmly established by that no formal recognition of Aboriginal customary laws should be accorded. This remained the situation until this century. These legislative and administrative responses are of considerable interest.


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These figures are unrepresentative of the actual number of killings during this period. But the judge of the Supreme Court had declared himself without jurisdiction to try the Aborigines. For a fuller account of the judgment see Bridges But in the same paragraph, he banned the supply of intoxicants to Aborigines. See further para n. According to Bridges: On the whole executive review took much of the sting out of major sentences in that a significant proportion of capital sentences imposed on natives were commuted to transportation which in effect often becomes a term for Cockatoo or Goat Islands in Sydney Harbour for instruction in secular and religious matter preparatory to an early release.

The Committee stated that: when British law is violated by the Aborigines within the British dominions, it seems right the utmost indulgence compatible with a due regard for the lives and properties of others, should be shown for their ignorance and prejudices. He stated: 1. Grey commented: … I do not hesitate to assert my full conviction, that whilst those tribes, which are in communication with Europeans, are allowed to execute their barbarous laws and customs upon one another, so long will they remain hopelessly immersed in their present state of barbarism.

To punish the Aborigines severely for the violation of laws to which they are ignorant, would be manifestly cruel and unjust, but to punish them in the first instance slightly for the violation of true laws would inflict no great injury on them… According to Hasluck: In spite of the indication given by the Secretary of State of his views, Hurt held to his own opinion regarding disputes between natives, and during his term no notice was taken of acts by natives against natives in accordance with their own law.

Captain Grey put the problem thus: The greatest obstacle that presents itself in considering the application of British Law to these Aborigines is the fact that, from their ignorance of the nature of an oath, or of the obligations it imposes, they are not competent to give evidence before a Court of Justice …