Customary Law Recognition in Australia

Customary law in Australia relates to the systems and practices amongst Aboriginal Australians which have developed over time from accepted moral norms in Aboriginal societies, and which regulate human behaviour, mandate specific sanctions for non-compliance, and connect people with the land and with each other, through a system of relationships. Customary laws are passed on by word of mouth and are not codified (nor can they be easily codified). In addition, they are not singular throughout Australia — different language groups and clans have different concepts of customary law, and what applies within one group or region cannot be assumed to be universal.

History of Customary Law

The customary laws of Aboriginal and Torres Strait Islander peoples were given little recognition by the legal system until recently. When the English colonised Australia, they ignored ownership of land. This continued until quite recently, assisted by the legal fiction that Australia was terra nullius (land belonging to no-one) at the time of colonisation. The legal argument was that Australia was “settled” (because it was, effectively, vacant) rather than conquered.

Places where Customary Law is Recognised

As a result of the High Court decision in Mabo in 1992 there is now limited recognition of Aboriginal ownership and use of land (native title). As well, customary law has some limited influence in the sentencing of some Aboriginal Indigenous offenders and in areas such as family relations ships and the protection of sacred sites.

In particular customary law is often recognised in the following situations:

Through the courts:

  • Judicial responses and discretion;
  • Sentencing discretions;
  • Criminal law in the assigning of criminal responsiblity;
  • Compensable injury;
  • Traditional marriage; and
  • Interrogation rules through trial.

Through legislation:

  • Grant of land rights and native title;
  • Protection of sites and sacred sites;
  • Hunting and fishing rights;
  • Aboriginal traditional marriages;
  • Aboriginal child care practices;
  • Traditional distribution on death; and
  • Aboriginal courts.

For an excellent summary of Australian Law and Clarity Issues, please see the Rule of Law (14 March 2017).

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