In collaboration with the Aboriginal community, South Australian Magistrate Christopher Vass developed the idea of the court which incorporates the Aboriginal traditional
customary law approach to the sentencing of Aboriginal offenders within the framework of existing legislation.
Generally, these processes seek to incorporate an Aboriginal traditional
customary law approach to the sentencing of Aboriginal offenders within the framework of existing legislation.
Given the extent of the problem of family violence and the concerns that Aboriginal
Customary Law approaches do not address family violence, the majority of men and women who spoke to HREOC for this submission believed that mainstream law should play a part in addressing domestic violence.
Not exact matches
[55] The international legal
approach to equality is one of substantive rather than formal equality: G Triggs, «Australia's Indigenous Peoples and International
Law» (1999) 23 Melbourne University
Law Review 372 at 379 - 381; also Australian
Law Reform Commission, Recognition of Aboriginal
Customary Laws, Report No 31 (1986) paras 150, 158.
This change in
approach has provided for the creating of «space» within some national land
law systems for local
customary tenure arrangements to continue to function.
Another possible
approach would be to structure measures so that Aboriginal
Customary Law is applied in the first instance, with access to mainstream law used as a last reso
Law is applied in the first instance, with access to mainstream
law used as a last reso
law used as a last resort.
The international legal
approach to equality is one of substantive rather than formal equality: G Triggs, «Australia's Indigenous Peoples and International
Law» (1999) 23 Melbourne University
Law Review 372 at 379 - 381; also Australian
Law Reform Commission, Recognition of Aboriginal
Customary Laws, Report No 31 (1986) paras 150, 158.
A staged
approach to recognising Aboriginal
customary law, including a focus on capacity building within communities, is important to the success of any new measures.
Principle six: A staged
approach The implementation of measures to recognise Aboriginal
customary law must reflect the capacity of individual communities.
Another possible
approach would be to structure measures so that Aboriginal
customary law is applied in the first instance, with access to mainstream
law used as a last resort.
In addition to the difficulties discussed above in relation to defining
customary law in general
law, the Commission argued that matters of Aboriginal
law could be better considered at the level of local self - government with an emphasis on a flexible
approach to developing justice mechanisms.
These developments ultimately strengthen the justifications for recognising Aboriginal
Customary Law and provide greater guidance as to approaches for recognising customary law in a manner that is consistent with huma
Customary Law and provide greater guidance as to approaches for recognising customary law in a manner that is consistent with human righ
Law and provide greater guidance as to
approaches for recognising
customary law in a manner that is consistent with huma
customary law in a manner that is consistent with human righ
law in a manner that is consistent with human rights.
This section discusses issues concerning the recognition of
customary law and Indigenous self - government in light of the ALRC's functional recognition
approach.
Given the issues surrounding the difficulty of defining and codifying Aboriginal
law and custom, it is essential that any policy or legislative
approaches to recognizing
customary law be flexible in response.
As incarceration rates of Indigenous people in countries such as Canada, United States, New Zealand and Australia continue to increase, alternative
approaches integrating elements of local
customary laws have been investigated and introduced within and to complement western legal systems.
These developments are discussed more fully in the next section of the submission which considers the human rights justifications for recognising Aboriginal
Customary Law and
approaches for recognising Aboriginal
Customary Law consistently with human rights standards.
This does not obviate the possibility of acknowledging formal knowledge of the existence of Indigenous legal and political systems at a constitutional level or at the common
law, as in the case of Mabo The functional
approach advocated by the ALRC enables both the recognition of the continuing existence of Aboriginal
law and custom and sufficient flexibility for Aboriginal people to be self - determining in the definition of
customary law.
the Government is unable to endorse the
approach to
customary law in the Council's Declaration as the Government believes all Australians are equally subject to a common set of
laws.
[179] The need to ensure a community based
approach was highlighted by field work on Aboriginal
Customary Law in the Northern Territory conducted by Diane Bell and Pam Ditton.
It should be noted that community consultations primarily with Indigenous women in April 2003 led the Commission to conclude that legislative
approaches to facilitate community justice mechanisms based in the recognition of
customary law (such as the establishment of a system of Indigenous tribunals) should not be pursued without adequate modeling at a policy level or without extensive consultation and local level participation of Aboriginal communities.
The section in the accompanying submission prepared by the Aboriginal and Torres Strait Islander Social Justice Commissioner on capacity building emphasises that a uniform national or Territory - wide
approach will not allow the development of appropriate solutions for the recognition of Aboriginal
Customary Law.