Recognition of Aboriginal law by the mainstream legal system

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

Following the arrival of Europeans in Australia, there have often been situations where both Aboriginal Traditional Law and the law introduced by the Europeans have applied at the same time, but said different things about what should happen.

In both the criminal law jurisdiction and the civil law jurisdiction, the question of whether and how to take Aboriginal Traditional Law into account is left to the discretion of the court. The outcome depends on the particular facts in each case. Some examples are provided in this section; for further detail, see sections on ‘Criminal law’ and ‘Other Legal Issues’ below.

In the family law jurisdiction, section 68F(2)(f) of the Family Law Act 1975 (Cth) and section 166(2)(f) of the Family Court Act 1997 (WA) require the court to take into account “the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant”. This factor is one of a number of matters that the court is expressly required to take into account when making orders about the parenting of children. The court has discretion about how much weight to attach to each factor, depending on the particular facts in each case.

An example of recognition of Aboriginal Traditional Law from the civil law area is the 1997 case of Re The Death of Unchango (Jnr) [1997] Unreported Lib No 970416. This case concerned the death of a baby at 12 days old. The cause of death was not known and there were no suspicious circumstances. The baby’s family applied to court for an order that no post-mortem examination be done because under the religion of their Aboriginal culture, if there was such an examination the baby’s spirit would not rest. The judge decided that the family’s cultural beliefs are always relevant to such decisions and ordered that there would be no post-mortem examination.

An example of the interface between Aboriginal traditional law and the mainstreamWestern Australian legal system in the criminal law area is the 1998 case of R v Lindsay Njana [1998] Unreported No 162/1997, where a 19 year old Aboriginal man who was a chronic petrol sniffer beat his 14 year old girlfriend to death. He was convicted of manslaughter following a trial. In deciding on an appropriate sentence, a judge in the WA Supreme Court took into account the fact that the defendant had already, voluntarily, undergone punishment under Aboriginal Traditional Law. Because of the punishment, (which included being speared by the girl’s male relatives and permanent banishment from his community), the Court lowered the sentence to 3 years’ jail.

The Law Reform Commission of Western Australia is currently conducting an inquiry to find out where these interfaces between the two legal systems exist, and whether or not Aboriginal and Torres Strait Islander peoples receive equality, equity and real justice from the mainstream Western Australian legal system. The above case examples come from the Commission’s published research.

The Commission’s final report on this topic is scheduled to be published during 2005.