Atsi Law

Discuss the relevance of Aboriginal & Torres Strait Islander (ATSI) law in the contemporary Australian legal system

As the Aboriginal & Torres Strait Islander (ATSI) communities came into contact with Europeans their traditional society began to break down. The British arrived in Australia and decided under Vattall's theory that Australia was Ð''settled' and not conquered. This meant that Australia was regarded as Ð''uninhabited' and so the ATSI people and all their beliefs, laws, rituals and traditions were totally disregarded.

Aboriginal & Torres Strait Islander (ATSI) customary law was based on tradition, ritual and acceptable modes of conduct. In 1986 Ð''The Australian Law Reform Commission (AIRC)' inquired into the question of recognition of ATSI customary law.

Arguments for included:

- Non-recognition undermines the ATSI culture and the fact that these laws are in use in some parts of Australia

- Non-recognition can lead to injustice. For example an ATSI person should not be punished by Australian law for what he or she is required to do under ATSI law, such as spearing

- ATSI people wish their laws to remain and have tried to make the two sets of law work together

- ATSI law is more effective in maintaining order and harmony in ATSI communities that non-Aboriginal law

- Australia's international standing would benefit from such recognition

- Recognition of customary laws may compensate for past injustice

Arguments against include:

- Recognition would involve also recognizing harsh punishments that are unacceptable to the general Australian public

- Many ATSI laws are discriminatory against women

- ATSI people would lose control over their laws and traditions

- It is difficult to recognize secret laws (oral laws)

- Recognition would create two systems of law which would be discriminatory and divide the population

After all the submissions put to forward to them the AIRC recommended that some areas of ATSI law be recognized and that recognition should take place within the framework of the Australian legal system. Areas of law that have been recognized in part in NSW include:

- Land rights

- Child custody: compulsory to play ATSI children in need of care with ATSI people

- The Family Court: considers ATSI status when considering care of children in marriage breakdowns

- Adoption: ATSI status considered

- Criminal Law: punishments (payback in particular) may be considered some allowances may be made in bail, interrogation and sentencing

What must be noted is through the AIRC's recommendations courts and parliaments that already exist would apply ATSI law, rather than it being applied by the ATSI people themselves.

"White law doesn't mean anything", so says an ATSI spokesman about the place of tribal law and punishment within the broader Australian legal system. In a recent incident in Derby a step-father hanged his two children at the town's pioneer cemetery. This case has highlighted the double jeopardy faced by ATSI people. Laurence Dann, 36, who is currently being held at Broome Prison is the latest in a series of crimes committed by ATSI people, who will not only be punished through the Australian legal system, but will also be punished as a result of tribal law. Double jeopardy means that an offender cannot be punished twice for the same crime. In many instances, unless tribal law was carried out, there was the continual fractionalization within the community, with people unable to get on with things until Ð''business' was sorted out. "White