Aboriginal Traditional Law

Contributed by Dennis Eggington, Tonia Brajcich, Angela Bromfield, Diane Winter and Antonio Buto and current to 1 September 2005

For thousands of years before the arrival of Europeans in Australia, Aboriginal and Torres Strait Islander peoples had well developed and defined systems of law. This is called Aboriginal Traditional Law. The content of the law varies depending on the specific Aboriginal or Torres Strait culture, but there are some broad matters held in common by a number of different Aboriginal and Torres Strait Islander cultures.

For Aboriginal and Torres Strait Islander peoples, law was created during the Dreaming by ancestors travelling the land establishing the world and the code of life. That law has been handed down through the years via dance, stories, legends, remembrance and celebrations of the sites that were the scenes of significant events involving the ancestors.

The law covers rules of living, for example skin groups, broad roles of men and women in religion, economic affairs, marriage and other activities, homicide, adultery, swearing, incest, physical assault, theft, sacrilege, abduction of women, usurpation of ritual privileges and duties, and omissions towards other people, such as failure to share food. Some parts of the law are secret and can only be discussed by certain people, for example secret men’s business and secret women’s business.

Elders are the keepers of the law. They know most about their specific culture. Elders who are fully initiated are very senior people who hold considerable wisdom and knowledge. Their opinions about the law carry the most weight.

Families are responsible for raising their children to know the correct behaviour under the law, and there are sanctions for breaking the law. Most problems are handled by a council of elders. Punishment can include shaming the offender into compliance, ostracizing, using the fear of sorcery, corporal punishment, wounding and death. The offender’s and victim’s families can plead for lenience or for a heavier penalty if they think it appropriate.

IMPACT ON ABORIGINAL TRADITIONAL LAW OF POST-COLONIAL HISTORY

The history of Aboriginal and Torres Strait Islander peoples since the arrival of European people in Australia is a tragic one. In dealings with the newly imposed legal system, Aboriginal and Torres Strait Islander peoples have often been harshly treated, and their existing Aboriginal Traditional Law systems ignored.

Aboriginal and Torres Strait Islander peoples remain disproportionately disadvantaged compared to other Australians in relation to health, life expectancy, education, employment, housing, wealth, prison population, and other indicators of well-being.

In the private sector, discrimination and racial and religious vilification remain a daily fact of life for many Aboriginal and Torres Strait Islander individuals. The experience of discrimination has led to the creation of some agencies aimed specifically at redressing the balance by delivering culturally-appropriate, non-discriminatory services for Aboriginal and Torres Strait Islander peoples. On a national level, there has been a move by some people towards reconciliation between Aboriginal and Torres Strait Islander peoples and mainstream Australians.

Recognition by courts and the legislature of the Aboriginal Traditional law is discussed further below.