Kyla
04-07-2004, 12:38 AM
Indigenous Law Resources
Reconciliation and Social Justice Library
RESPONDING TO CUSTODY LEVELS - CORRECTIVE SERVICES AND CUSTOMARY LAWS
To maintain order, Aboriginal and Torres Strait Islander peoples over thousands of years developed elaborate, complex and well-established mechanisms and procedures within their societies.
Since the first arrival of European colonists in Australia, indigenous Australians have been the subject of discrimination, exploitation, genocide and over-representation in various forms of institutions, including prisons. Indigenous systems of customary law have been gravely interfered with by the imposition of an alien legal system with which Aboriginal and Torres Strait Islander peoples must comply.
No State confers general recognition on customary laws nor the right for indigenous communities to be fully self-determining, but some legislation enables partial implementation of customary laws and self-determination. For example, the Community Services (Aborigines Act) 1984 (Qld) and the Community Services (Torres Strait) Act 1984 (Qld) provide for the establishment of community councils with by-law making powers which are to ensure good government in accordance with custom. Aboriginal and Torres Strait Islander courts can also be established. In Western Australia, the Aboriginal Communities Act 1979 gives Aboriginal community councils by-law making powers but does not refer to custom and tradition. In the Northern Territory, community governments can be established under the Local Government Act. In South Australia there are limited provisions for tribal assessors to assist in dispute resolution under the Pitjantjatjara Land Rights Act 1981 and the Maralinga Tjarutja Land Rights Act 1984.
Under customary law, Aboriginal and Torres Strait Islander peoples are taught from infancy, the processes that govern everyday life. To expect indigenous Australians to understand the complex and often contradictory new legal system without the assistance of universal community-based legal education programs is both unrealistic and unreasonable. The new concept of law has never been introduced properly to Aboriginal and Torres Strait Islander peoples - it was simply thrust upon them without any real attempts of explanation. As a result, indigenous Australians are largely uninformed of their rights and obligations under those laws.
The concepts of Australian law which are enforced by police and judicial systems are sometimes shameful according to customary values - such as the ultimate right of removal of any person from their birthplace to another place. Consideration must be given and action taken to ensure that the new Australian law performs in unison with Aboriginal and Torres Strait Islander peoples' customary laws to the advantage of all societies.
To accommodate these sorts of concepts, which value customary laws, an Aboriginal Community Justice Project was initiated in late 1982 with the cooperation of the Galiwinku Community Council at Elcho Island, in the Northern Territory. The aim was to provide a justice program which could accommodate customary law and social control mechanisms.
Unfortunately, the Community Justice Project was never implemented to its full capacity and the situation at Elcho Island eventually deteriorated to a state of chaos. Part of the problem, as seen by indigenous Australians, was that the government, and in particular, the justice system in the Northern Territory, was reluctant to allow the project to proceed. Indigenous Australians saw the government fearing a precedent for the rest of Australia, which could undermine the authority of the non-indigenous legal system. Community elders at Elcho Island expressed both anger and sadness at the situation, and thought that trust had been lost, with the government incapable of providing any real solutions to their problems.
The Sessional Committee on Constitutional Development in the Northern Territory's Legislative Assembly has since issued a discussion paper on the recognition of Aboriginal customary law, and some judges in the Territory have taken customary law into account when sentencing offenders.
Projects on customary law are also being trialed in North Queensland. However, a lesson that can be learnt from the Galiwinku Project failure is that for any similar project to work effectively in Queensland, or in any other State, two main factors need to be placed foremost. These are:
• that the government introducing this sort of initiative should be totally dedicated to the project, overcoming all predicted as well as unexpected problems in administration; and
• that the complete involvement of Aboriginal and Torres Strait Islander peoples, in consultation and negotiation about the project, as well as in its administration, should be assured before commencement.
Parallel systems involving community activity and the application of customary laws would by no means be impossible to achieve, since customary laws can be readily applied to minor offences. Many infractions could be resolved on an immediate basis, eliminating the need for further involvement by non-indigenous justice systems.
But the suitability and willingness of communities to participate in such systems must be assessed, and community involvement would need to be encouraged. Management of these programs must be considered a priority and all due care must be taken to provide adequate support in assisting each community to achieve a high level of competence.
Such projects could encompass areas such as:
• the administration of Aboriginal and Torres Strait Islander courts;
• Justice of the Peace schemes;
• community police;
• community-based probation and parole services;
• pre- and post-release rehabilitation; and
• alternative imprisonment facilities such as community detention centres.
A full evaluation of programs of this nature should be encouraged, nurtured and implemented to suit each individual community's needs.
Each community has a need for its own social control mechanisms, and indigenous Australians rarely feel part of the non-indigenous community. However, due to the variations that exist in cultural administration techniques and patterns of social organisation, each community must be thoroughly assessed for its capacities and capabilities in handling such responsibilities. Resources should be made available to train key people so that full and effective participation is assured.
Reconciliation and Social Justice Library
RESPONDING TO CUSTODY LEVELS - CORRECTIVE SERVICES AND CUSTOMARY LAWS
To maintain order, Aboriginal and Torres Strait Islander peoples over thousands of years developed elaborate, complex and well-established mechanisms and procedures within their societies.
Since the first arrival of European colonists in Australia, indigenous Australians have been the subject of discrimination, exploitation, genocide and over-representation in various forms of institutions, including prisons. Indigenous systems of customary law have been gravely interfered with by the imposition of an alien legal system with which Aboriginal and Torres Strait Islander peoples must comply.
No State confers general recognition on customary laws nor the right for indigenous communities to be fully self-determining, but some legislation enables partial implementation of customary laws and self-determination. For example, the Community Services (Aborigines Act) 1984 (Qld) and the Community Services (Torres Strait) Act 1984 (Qld) provide for the establishment of community councils with by-law making powers which are to ensure good government in accordance with custom. Aboriginal and Torres Strait Islander courts can also be established. In Western Australia, the Aboriginal Communities Act 1979 gives Aboriginal community councils by-law making powers but does not refer to custom and tradition. In the Northern Territory, community governments can be established under the Local Government Act. In South Australia there are limited provisions for tribal assessors to assist in dispute resolution under the Pitjantjatjara Land Rights Act 1981 and the Maralinga Tjarutja Land Rights Act 1984.
Under customary law, Aboriginal and Torres Strait Islander peoples are taught from infancy, the processes that govern everyday life. To expect indigenous Australians to understand the complex and often contradictory new legal system without the assistance of universal community-based legal education programs is both unrealistic and unreasonable. The new concept of law has never been introduced properly to Aboriginal and Torres Strait Islander peoples - it was simply thrust upon them without any real attempts of explanation. As a result, indigenous Australians are largely uninformed of their rights and obligations under those laws.
The concepts of Australian law which are enforced by police and judicial systems are sometimes shameful according to customary values - such as the ultimate right of removal of any person from their birthplace to another place. Consideration must be given and action taken to ensure that the new Australian law performs in unison with Aboriginal and Torres Strait Islander peoples' customary laws to the advantage of all societies.
To accommodate these sorts of concepts, which value customary laws, an Aboriginal Community Justice Project was initiated in late 1982 with the cooperation of the Galiwinku Community Council at Elcho Island, in the Northern Territory. The aim was to provide a justice program which could accommodate customary law and social control mechanisms.
Unfortunately, the Community Justice Project was never implemented to its full capacity and the situation at Elcho Island eventually deteriorated to a state of chaos. Part of the problem, as seen by indigenous Australians, was that the government, and in particular, the justice system in the Northern Territory, was reluctant to allow the project to proceed. Indigenous Australians saw the government fearing a precedent for the rest of Australia, which could undermine the authority of the non-indigenous legal system. Community elders at Elcho Island expressed both anger and sadness at the situation, and thought that trust had been lost, with the government incapable of providing any real solutions to their problems.
The Sessional Committee on Constitutional Development in the Northern Territory's Legislative Assembly has since issued a discussion paper on the recognition of Aboriginal customary law, and some judges in the Territory have taken customary law into account when sentencing offenders.
Projects on customary law are also being trialed in North Queensland. However, a lesson that can be learnt from the Galiwinku Project failure is that for any similar project to work effectively in Queensland, or in any other State, two main factors need to be placed foremost. These are:
• that the government introducing this sort of initiative should be totally dedicated to the project, overcoming all predicted as well as unexpected problems in administration; and
• that the complete involvement of Aboriginal and Torres Strait Islander peoples, in consultation and negotiation about the project, as well as in its administration, should be assured before commencement.
Parallel systems involving community activity and the application of customary laws would by no means be impossible to achieve, since customary laws can be readily applied to minor offences. Many infractions could be resolved on an immediate basis, eliminating the need for further involvement by non-indigenous justice systems.
But the suitability and willingness of communities to participate in such systems must be assessed, and community involvement would need to be encouraged. Management of these programs must be considered a priority and all due care must be taken to provide adequate support in assisting each community to achieve a high level of competence.
Such projects could encompass areas such as:
• the administration of Aboriginal and Torres Strait Islander courts;
• Justice of the Peace schemes;
• community police;
• community-based probation and parole services;
• pre- and post-release rehabilitation; and
• alternative imprisonment facilities such as community detention centres.
A full evaluation of programs of this nature should be encouraged, nurtured and implemented to suit each individual community's needs.
Each community has a need for its own social control mechanisms, and indigenous Australians rarely feel part of the non-indigenous community. However, due to the variations that exist in cultural administration techniques and patterns of social organisation, each community must be thoroughly assessed for its capacities and capabilities in handling such responsibilities. Resources should be made available to train key people so that full and effective participation is assured.