Aboriginal people and the law - Legal Information Access Centre

More documents

Recommendations

Info

44 The Law HandbookJoint Select Committee on Aboriginal and make laws about Aboriginal and TorresTorres Strait Islander Recognition has pro- Strait Islander people; but prevent theduced an interim report (July 2014) which Commonwealth, in making any such laws,concludes that to be successful at a from discriminating against Aboriginal orreferendum, any proposal must recognise Torres Strait Islander people. The final re-Aboriginal and Torres Strait islander people; port has not yet been produced.preserve the ability of the Commonwealth toSome current points of conflict[2.70] Pastoralism, mining,conservationAboriginal law and custom concerning theinteraction between people and land, andcommunal and individual responsibilitiestowards the care and nurture of land, are atodds with the European Australian practicesof pastoralism and mining and the conceptof land as a resource to be exploited.Aboriginal principles of caring for countryare not necessarily consistent with conservationlaws. Often conservation principles arebased on the idea that an ecosystem oughtto be preserved, untouched by humanintervention, but Aboriginal people haveengaged in traditional land management formillennia. Aboriginal people have their ownaspirations for development, to improvetheir economic circumstances while seekingto protect their special relationship with theland. The debate in Queensland and at anational level between Aboriginal people,government and conservationists about WildRivers legislation is an example of this.[2.80] Traditional marriageIn 2003, charges were brought against a50-year-old Northern Territory man for havingunlawful sexual relations with a girlunder 16 (Criminal Code (NT), s 331A). Theaccused, a traditional Aboriginal man,claimed that he and the girl were marriedaccording to traditional law – a defence thatwas provided for in the Criminal Code. Hewas convicted, and although the crimecarries a maximum penalty of seven years’imprisonment, was sentenced to one day injail.Following this case the Northern Territorygovernment amended the Criminal Code toremove the traditional law defence, arguingthat it had a responsibility to protect youngwomen from sexual exploitation. The repealof the traditional marriage defence meansthat Aboriginal men living according toAboriginal law and custom may be liable toprosecution. This must be weighed againstthe protection now afforded young womenwho may otherwise be subject to sexualexploitation.The “Child Bride” caseIn 2005 another Aboriginal man was convicted of having Director of Public Prosecutions appealed the sentence,had sexual intercourse with a girl under 16. Although the and the Full Bench of the Northern Territory Court ofman could not raise the fact that the girl was “prom- Criminal Appeal found that it was manifestly inadequate.ised” to him under Aboriginal law as a defence, he wasThe court increased the sentence to a total of 3 years11 months with an 18 month non-parole period (Queen vable to raise the matter before the judge in consider-GJ [2005] NTCCA 20). Subsequently, the federal governationof the appropriate sentence.ment passed a law amending the Crimes Act 1914 (Cth)The judge, taking the customary law issues into account, to remove the capacity of judges dealing with Commonsentencedthe man to a total of 24 months' imprison- wealth crimes under that legislation to take into accountment with 23 months suspended. The Northern Territory customary law matters when determining sentence.
2 Aboriginal people and the law 45[2.90] Customary law andcriminal lawIn Walker v New South Wales (1994) 182 CLR45, the High Court considered whethercustomary law has application in criminallaw where there is no legislative basis.Chief Justice Mason concluded that thecriminal law was intended to apply to thewhole community and therefore any customarylaw would necessarily be inconsistentwith the common law, and consequentlyextinguished.Defending traditional fishing rightsBen Ali Nona, a traditional owner of theland and waters of and around MurrayIsland in the Torres Straits, was acquitted inthe Queensland District Court of a charge ofarmed robbery after he took the catch from acommercial fishing boat while armed. Nonasuccessfully argued that he had an honestclaim of right – that is, he had an honestlyheld belief as to his or his people’s legalentitlement to the fish (see also R v Fuge[2001] NSWCCA 208). In Yanner v Eaton(1999) 201 CLR 351 traditional law was adefence to the State’s prosecution of MurrandooYanner for hunting juvenilecrocodiles. Two recent High Court cases ontraditional fishing rights, Akiba v Commonwealth[2013] HCA 33, (2013) 250 CLR 209and Karpany v Dietman [2013] HCA 47confirm that Aboriginal and Torres StraitIslander traditional fishing rights are recognisedand protected by the Native Title Act,and although State and Commonwealthfishing laws might regulate those rights,s 211 of the Native Title Act protects theirexercise. The decisions also establish that aright to take marine resources under traditionallaw is not necessarily limited totaking for a particular purpose, such asdomestic use, and that where traditional lawsupports fishing for non-domestic purposes,traditional owners may exercise rights forcommercial and domestic purposes.[2.100] Finding a way ofreconciliationSuch issues are difficult. In the past, whereconflict arose between Aboriginal law andcustom and Australian law, Australian lawprevailed. This is still the case, but whensuch issues are raised in the press or thecourts, there is now a sense that manyAustralians have an understanding thatthere must be a place for Aboriginal law andcustom within the Australian legal system.In NSW, even with a developingawareness, Aboriginal law and custom remainsat the fringe.[2.110] The Northern TerritoryInterventionOn 15 June 2007 a report entitled LittleChildren are Sacred was released by theNorthern Territory government. It identifiedthe extent of child sexual abuse claims inNorthern Territory Aboriginal communitiesand made 101 recommendations to theNorthern Territory government regardingthe needs of those communities.In response to the report, the federalgovernment passed the Northern TerritoryNational Emergency Response Act 2007 (Cth)(NTER). In order to pass the legislation itwas necessary to suspend the operation ofthe Racial Discrimination Act 1975 (Cth) asthe legislation was clearly discriminatory.The NTER provided for the acquisition ofAboriginal land by compulsory lease, incomequarantining (issuing food vouchersrather than welfare payments, removingaccess to welfare payments) and variousother measures. A review of the legislationwas undertaken by a task force appointedby the federal government, following whichthe Rudd government determined to continuewith the emergency measures.In his February 2010 report “ObservationsOn The Northern Territory Emergency ResponseIn Australia”, United Nations SpecialRapporteur on the situation of human rightsand fundamental freedoms of Indigenouspeople, James Anaya found that, “as cur
Page 1 and 2: The Law HandbookYOUR PRACTICAL GUID
Page 3 and 4: Aboriginal people andthe law2Robyn
Page 6 and 7: 42 The Law HandbookPermission requi
Page 10 and 11: 46 The Law Handbookrently configure
Page 12 and 13: 48 The Law HandbookIntimate procedu
Page 14 and 15: 50 The Law Handbook[2.210] Effect o
Page 16 and 17: 52 The Law Handbook• Adoption is
Page 19 and 20: 2 Aboriginal people and the law 55[
Page 21 and 22: 2 Aboriginal people and the law 57a
Page 23 and 24: 2 Aboriginal people and the law 59M
Page 25 and 26: 2 Aboriginal people and the law 61D
Page 27 and 28: 2 Aboriginal people and the law 63t
Page 29 and 30: 2 Aboriginal people and the law 65f
Page 31 and 32: 2 Aboriginal people and the law 67f
Page 33 and 34: 2 Aboriginal people and the law 69r
Page 35: 2 Aboriginal people and the law 71
Page 38 and 39: 74 The Law Handbook• a comprehens
Page 40 and 41: 76 The Law HandbookDream Shield“D
Page 42 and 43: 78 The Law Handbook The Law Handboo

Aboriginal people and the law - Legal Information Access Centre

Create successful ePaper yourself

Delete template?

Save as template?