sonlymewalter

Whilst everyone would love to allow anyone and everyone to manage their life how they see fit, reality is society is about how we all learn how to assimilate whilst taking into consideration the many variations. To be part of society we have to abide by one law, respect differences within the law and understand that to be different is a good thing - so long as it's within the law.

Evolution in the human and animal kingdom means the strongest overtake the weakest link. Whether we like it or not. Australia was taken over by the white man. Fact. No one is saying their are no faults in how this took place, however we cannot go back, only forward.

Whilst theory would lead us to believe we can allow two separatist societies, this only serves to create anarchy for all the reasons mentioned. As an example, I have aboriginal friends who prefer to stay within their own mob and other aboriginal friends who want to assimilate within society and not be seen as different, but respected for their difference whilst at the same time evolve. If society tries to cow tow to everyones wishes, we go round in circles. Then there is the argument regarding moving out of the dark ages and towards modern thinking. How can this occur with two separate societies. It is pointless arguing if white mans law is better or worse than the black fellas. It is white mans law that is the rule of the land. Laws have to be in place to manage the majority and protect the minority, sometimes against their own will. Learn to live with it as it's reality. The law doesn't please everyone, even white fellas don't like it sometimes.

Australia should be proud of it's aboriginal people. Aboriginal people should be proud of their race. As with all races, they must evolve. Sometimes this occurs naturally, sometimes forced.

That's life.

copa

There's a distinct touch of "white mans burden" in some of the posts on this thread.

Kim67

This is all fine in theory, but I have family members who are part aboriginal. Having grown up in the same family, being treated as equals, I can tell you my relatives with indigenous blood, had completely different coping mechanisms to the rest of the family and have chosen very different paths to the rest of us. You can't just expect to change a whole race and not to have to make some concessions in the process.

sonlymewalter

What do you mean

IvanM

Child abuse is not a traditional aboriginal practise but a symptom of what has gone wrong.

I am buggered if I have the answer but part of me says that some form of self determination and the responsibilities that it entails maybe part of the solution.

The only thing most can agree on, including Aborigines, is that the status quo is unacceptable.

IvanM

Both the Maori and American natives have severe alcohol issues in their communities. Have you seen the film "Once were warriors?"

Another difference is that the Maori make up around 10% of the Kiwi population and have a more significant political clout that a lot of white Kiwis resent.

An interesting comment a Maori made to me was that in NZ there is at least the strong family guiding kids. He used to be a bouncer there and the biggest threat was to tell the Auntie. Maori and Pacific islanders in Australia can lose that sense of guidance and with some beer that warrior background comes back.

IvanM

Victims of Brum unite. The equivalent there would be the local community doing its own law enforcement. A few here deriding Aboriginal law would love nothing better than to give those kids a good kicking.

Centurion

Again - I am not suggesting or taking away from the traditions of Aboriginal communities or recognised status. My point is that how should we as a nation deal with the conflict of democratic law and cultural tradition whilst observing the basic human right of equality under law ?

Despite a few posters reminding us all of the terrible things done in days past and the appalling situation currently, the original topic remains the same. I have read nothing from anyone on this thread who is "pro aboriginal law" (and that is purely for want of a better term that I can be bothered to use at this time of night) actually confirm if they support the idea and how roughly that tribal law should interact with our state and national laws.

I suspect that's because pretty much they dont have the answer either.

Kim67

WARNING - THIS IS REALLY LONG AND MOST OF YOU PROBABLY WON'T WANT TO READ IT - CENTURION THIS ONE'S FOR YOU

Here's an extract from a student paper that can explain far better than me.

What are the significant differences between European law and traditional Aboriginal law enforcement practices and what are some of the problems arising from these?

Cultural punishment (Background):
Customary law, the traditional form of law developed by Aboriginal people and in use for thousands of years before the arrival of white people and the imported British system of laws is still in use in Australia. For over 40,000 years day to day laws, rules on how to interact with the land, kin and community was laid out in customary law

Before the arrival of the white man bringing another system of laws, Aboriginal people learned the law from childhood. Learning the law was not simply learning codified law like the NT Criminal code that was drawn up by a group of lawyers, politicians and draughtsmen, it was and still is, inherent learning, which is as normal to Aboriginal people as breathing. Aboriginal law was laid down in the dreamtime. Spiritual beings travelled the country, creating country and the animals that inhabit it, laying down the law. The law governs how people behave, whom they will marry and how seasons and food supplies can be perpetuated.

Aboriginal traditional law is taught by the observance of custom, ceremonies and song cycles.” Western law is written on paper and in documents, and that’s real fro us and it’s the words, their law is written in the land”

Day to day behaviour was strictly governed in the traditional way and still is, to a large extent. There are strict observance rituals, such as the avoidance rules and marriage rules. For instance, Mothers in law in our family are not permitted to talk to their son in laws, as this is an important relationship, which must be protected.

The perpetuation practices are still in place, for instance, when we travel along the Finke Gorge, we must follow the rules to be allowed to cross boundaries. People still perform the ceremonies to make sure that there will be enough food or that life will be good.

Punishment is a big part of the criminal justice system. Punishment was also laid out in traditional law. Tribal punishment has remained a part of Aboriginal culture to this day. Traditional punishment works as part of tribal law, which punishes wrong doers for breaching Aboriginal community values.
The punishment is laid out much as the same way as it is in a criminal justice system. In the NT Criminal Code, there is an offence and a prescribed penalty that goes from the maximum to the minimum punishment you can get. A lawyer goes to court and tries to get an offender off or minimize the penalty. In the Aboriginal Traditional law

there are often discussions between the family members of the offender and the victim. This meeting will often decide the penalty, the severity of punishment and who will carry it out. This seems to be the same process but one is written and the other is learned.

Differences:
Traditional punishment can often be misunderstood.

“Swift justice is a mark of traditional punishment. A spear in the arm of thigh and a good beating with Nulla Nullas (Aboriginal fighting sticks) is seen as adequate justice for punishment of a crime.”
Only someone who does not understand the process of traditional punishment would simplify it to this extent.

Mowarljarlai expressed the difference in this way;
We are really sorry for you people. We cry for you because you haven’t got meaning of culture in this country.

Swift and precise justice can strangely be beneficial to the Aboriginal community, punishment is over victims are satisfied and the community returns to normal. Long court cases can drag out cultural matters and can often led to family feuds and deaths due to punishment not seen to be done.

Although tribal punishment is and accepted tradition in many Aboriginal communities, it is seen as a violation of basic human rights in European culture. This is because it is seen to be very violent. This is not always true. In the Kimberly’s every month, outback-traditional punishment takes place the elders say that traditional law is vital to the survival Aboriginal culture in Aboriginal communities. This is important to Aboriginal culture as it allows elders to carry out their roles as protectors of their culture by implementing traditional methods of punishment.

There are many cases where the two laws clash. They sometimes clash where it appears that the traditional punishment is harsh and barbaric allowing for the spearing of the offender.
In this case it seems too harsh, in the smoking, it seems too soft. In the eyes of the Aborigine it is appropriate.

The European law relies on isolation from the community rather that physical punishment. The criminal justice system sends people to jail, sometimes for years and years. That means that they cannot be with their family and cannot go to work.

Ultimately, to preserve Aboriginal culture, elders believe the English Common Law System should recognize their law.

European law resent tribal punishment because the courts believe that there is a significant risk that that punishment would involve unlawful physical force and “the courts cannot condone unlawful acts”. Rex wild, the NT director of public prosecutions said ‘ for a long, long time in the NT we’ve adopted the view that “payback” (tribal punishment) is not appropriate if the result of it is serious injury to people.

In reality, many people think that offenders use the criminal justice system to avoid punishment. ATSIC Commissioner believes that some offenders go to towns to escape tribal law. However Jeremy Anthony, form Lajamanu, believes that he might die from a curse if he does not do the right thing and undergo traditional punishment.

The Problem:
There are two major problems that threaten Aboriginal society if Aboriginal law is banned. Firstly, significant parts of indigenous culture could be lost.

Time is running out. The ones of ancient Aboriginal knowledge and wisdom are getting old and when they are gone that’s it. The primary direct relationship with the land that has been kept for thousands of years will be gone if Aboriginal law is not permitted; this highlights the need for preservation of the Aboriginal culture in Australia. White Australians do not understand the nature of the country, simply because they haven’t been here long enough. Galarrwuy Yunupingu, Northern Land Council believes that choosing to ignore Aboriginal law and customs ‘ it is totally not right. Is is a mockery to Aboriginal rights. It is a mockery to Aboriginal law. It is a mockery to Aboriginal human rights’.

Solutions:
There are Aboriginal people in the Northern Territory who have been calling for customary law to be recognized. There has been a lot of work done n the Northern Territory to try to make the criminal justice system more meaningful to the Aboriginal people. For example, in 2002 a 50-year-old Arnhem Land man Jackie Pascoe was sentenced to one-day jail for having unlawful sexual relations with his 17-year-old bride . This was due to Aboriginal traditions permitting relations with his underage promised wife.

Judicial law is moving towards incorporating traditional punishment into sentencing. The Supreme Court of the Northern Territory has made some case law, which has incorporated traditional punishment into the sentence. A young Walpiri, Wilson Walker, who murdered his cousin in a fight, was released on the understanding that he would undergo traditional punishment, though the Judges did try to limit the punishment to non-spearing.

Traditional punishment is taken into account during the sentencing because the judges know the offender will be punished in both laws. If the offender is punished harshly in both laws it would be considered ‘Double jeopardy’ which is when an offender is

punished for a crime twice. Even if the offender goes to jail, the offender will get his punishment, either before getting sentenced or after. ’Double jeopardy’ is considered as a violation of human rights in European law, so to burden it on Aboriginal people would be wrong.

There is a glossary of legal terms, which has been produced for the Glawinku community. The legal glossary in both English and Yolgnu is part of a wider plan for customary law to achieve formal recognition. The glossary contains the most common offences Yolgnu people are convicted of and the consequences of those crimes.


In summary, the differences between Aboriginal and European law are vast. Aboriginal law relies on the principal of ’swift justice’, which, for serious crimes and offender is often physically harmed. This type of justice has been around for over 40,000 years. In contrast, European law believes that isolation from the community for an extended period of time is justice rather than punishment. Physical punishment is not an accepted tradition. However, because European law is entrenched within in the Australian constitution it is practiced as the sovereign law in Australia. To avoid a clash of cultures the most viable solution is to incorporate parts of traditional Aboriginal law into sentencing, where it is appropriate e.g. (Aboriginal offender, who has strong cultural ties).

alipally

Perhaps it would be prudent to ask the Aborigines to look at their traditional punishments and implement their own reforms?

I don't understand enough to know whether this is a possibility, but surely a bit of 'evolution' would be appropriate...

After all, we used to have public floggings, days in the stocks, hangings, duelling, (I'm not sure if the amputation of limbs was once used?). We used to display the severed heads of those condemned of Treason, on spikes outside the tower of London But we don't any more.... We have moved forward. Just because we don't do these things anymore doesn't mean that Britain is any less rich culturally, than it used to be. No longer practicing these punishments doesn't mean we will forget they existed.

Surely it's not too much to ask for the same commitment to move forward in the punishment administered by the Aboriginal community. Perhaps it is. I just think that stabbing someone as a punishment doesn't have the same impact as it once did.... They have access to modern medicine, there is little chance of a terrible infection setting in because of this and I feel that the impact of this once, really quite severe punishment, is lost and all that is accomplished is an additional burden on an already stretched Medicare service.

If I'm reading this wrong, please let me know, but this is what I've gleaned from all the posts.

Vash the Stampede

On what grounds do you disagree with some practices and not others?

Vash the Stampede

Here's my anecdotal experience, FWIW...

I had Aboriginal neighbours across the road from me when I lived in Midvale (WA). Two families in a big brick duplex. There were other Aboriginal families in the neighbourhood.

Walk into Midland and you would usually see a small group sitting on the grass verge outside the old library. Sometimes drinking; sometimes just soaking up the sun. Normally quiet, but occasionally abusive.

I have uncomfortable memories of being on a Perthbound train from Midland with an Aboriginal teenager leaning heavily against me as he surreptitiously sniffed his way into oblivion. The fumes were eye-wateringly powerful.

There are plenty of Aboriginal people connected to society in Perth. The problem is how they're connected, and to what extent.

Vash the Stampede

I wasn't allowed to contribute to defining that law either. It's been equally imposed on me when I was born into an Australian family.

Lack of contribution to the law is no grounds for exemption from it.

Vash the Stampede

Child abuse qua child abuse is not a traditional practice, correct. But certain traditional practices constitute child abuse. Even Kim67's post above has referred to the permission of underage sex with promised brides. This is not an anomaly; it's an accepted traditional practice in some areas.
Source.

Rape an underage girl, and if the circumstances are right, tribal law could be your defence. It all depends on whether or not she was was promised to you.

If she was, she's fair game.

sammyg

I can see what you're saying here - but the facts that aboriginals are the original settlers in australia seems to 'allow' them a few privileges? I can see why they want their own laws (don't necessarily agree with them though)