Aboriginal customary laws : background papers


This paper is intended to provide a broad summary of the approach of Australian courts to Aboriginal customary law in the areas of criminal law, civil law and family law. Because this paper was produced to inform the Law Reform Commission of Western Australia’s Aboriginal customary law reference, the primary focus of the paper is the development of the common law position on customary law in Western Australia. Where there is no Western Australian precedent or where the law has been shaped by decisions ofcourts in other states or territories or by the High Court, the paper refers to relevant cases in all Australian jurisdictions, over the last 20 years. It is presented in four parts, each part consisting of a summary of the area of law followed by a digest of relevant cases. Part I deals with criminal law and summarises the decisions of Australian courts in the areas of bail, procedure and sentencing where Aboriginal customary law has been at issue, as well as the use of defences which have relied on Aboriginal customary law. Part II deals with civil law and examines cases where Aboriginal customary law has been asserted in relation to coronial and burial matters. Part III addresses issues relating to Aboriginal customary law in matters of family law andthe placement of children. Whilst not specifically addressed to issues of Aboriginal customary law, Part IV examines the related area of Aboriginality and sentencing and provides a general summary of the important principles developed by Australian courts in this area. The case digest following this final section is presented in chronological order to emphasise the development of the common law in this area. (Introduction, edited.)

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