Indigenous Australian customary law refers to the legal systems and practices uniquely belonging to Indigenous Australians of Australia, that is, Aboriginal and Torres Strait Islander people.
Indigenous peoples of Australia comprise two groups with very different histories, ethnicities and customs: Aboriginal peoples and Torres Strait Islanders. Torres Strait Islanders are "strictly monogamous [and] mostly church-married". The most notable customary practice differing from usual practice among non-Indigenous Australians is that of adoption, known as kupai omasker , by members of the extended family [1] or friends. The reasons differ depending on which of the many Torres Islander cultures the person belongs to. [2]
Most studies have looked exclusively at Aboriginal law and lore, with regard to personal and social customs. [1]
Aboriginal customary law developed over time from accepted moral and social norms within Indigenous societies. They regulate human behaviour, mandate specific sanctions for non-compliance, and connect people with the land and with each other, through a system of relationships. [3]
Indigenous customary law is not uniform across Australia, and systems differ greatly between language groups, clans, and regions. [4]
Within some Aboriginal Australian communities, the words "law" and "lore" are words used to differentiate between the Indigenous and post-colonial legal systems. The word "law" is taken to refer to the legal system introduced during the European colonisation of Australia, whereas the word "lore" is used to refer to the Indigenous customary system. Learned from childhood, lore dictates the rules on how to interact with the land, kinship, and community. [5]
Aboriginal customary lore is intertwined with cultural customs, practices, and stories from the Dreamtime. Customs are passed on through the generations by means of cultural works such as songlines, stories and dance. Those cultural works are passed on by oral tradition. A report by the Australian Government in 1986 did not find any codified versions of Indigenous customary lore, but acknowledged that the existing knowledge of Indigenous Australian traditions may be sufficient to be considered as such. [4]
Before the arrival of Europeans, death sentences were carried out under Aboriginal customary law, either directly or through sorcery. [6] In some cases the condemned could be denied mortuary rites. [7]
Customary law has not otherwise been relevant to the development of Australian common law by courts.[ citation needed ]
Legislative bodies since the late-twentieth century have investigated the concept of incorporating Indigenous laws more formally into post-colonial legal systems. Reports by the Australian Law Reform Commission [4] and the Law Reform Commission of Western Australia [3] have discussed the desirability of recognising customary law in matters involving Aboriginal Australians. In the Northern Territory, some statutes and courts make explicit reference to customary law where useful in identifying relationships and social expectations. [8] These changes have sometimes been controversial, [9] [10] especially in cases where customary law is imprecise or infringes upon human rights. [11]
On 17 July 2020 the Queensland Government introduced a bill in parliament to legally recognise the Torres Strait Islander practice of traditional adoptions (kupai omasker), [12] which was passed as the Meriba Omasker Kaziw Kazipa Act 2020 ("For Our Children's Children") on 8 September 2020. [13]
European settlers in Australia assumed the legal fiction of Australia as terra nullius during the period of colonisation. For that reason, lore was explicitly ignored by Australian courts, both during and after the colonial era.[ citation needed ]
In 1992, post-colonial law recognised Indigenous lore as giving rise to a valid legal claim in the Mabo decision, in which the legal fiction of terra nullius was discarded. While the court found that the crown held radical title over all land in Australia (including land subject to Indigenous legal claims), the High Court held that it would recognise customary legal rights to land; if and only if those legal rights had been maintained continuously since settlement, and not displaced by an inconsistent grant in title to another person (such as a grant in freehold). Indigenous customary claims to land are regulated by the Native Title Act 1993 .[ citation needed ]
Madayin is the customary law of the Yolngu people, which embodies the rights and responsibilities of the owners of the law, or citizens (rom watangu walal, or simply rom). As well as the objects that symbolise the law, oral rules, names and song cycles, and the sacred places that are used to maintain, develop and provide education in the law. [14] Rom and its accompanying ceremonies are concepts and practices shared by the neighbouring Anbarra people, also in Arnhem Land. [15] [16]
Torres Strait Islanders are the Indigenous Melanesian people of the Torres Strait Islands, which are part of the state of Queensland, Australia. Ethnically distinct from the Aboriginal peoples of the rest of Australia, they are often grouped with them as Indigenous Australians. Today there are many more Torres Strait Islander people living in mainland Australia than on the Islands.
Australian Indigenous sovereignty, also recently termed Blak sovereignty, encompasses the various rights claimed by Aboriginal and Torres Strait Islander peoples within Australia. Such rights are said to derive from Indigenous peoples' occupation and ownership of Australia prior to colonisation and through their continuing spiritual connection to land. Indigenous sovereignty is not recognised in the Australian Constitution or under Australian law.
Gatjil Djerrkura OAM was an Aboriginal leader and indigenous spokesman in the Northern Territory and Australia.
Indigenous music of Australia comprises the music of the Aboriginal and Torres Strait Islander peoples of Australia, intersecting with their cultural and ceremonial observances, through the millennia of their individual and collective histories to the present day. The traditional forms include many aspects of performance and musical instrumentation that are unique to particular regions or Aboriginal Australian groups; and some elements of musical tradition are common or widespread through much of the Australian continent, and even beyond. The music of the Torres Strait Islanders is related to that of adjacent parts of New Guinea. Music is a vital part of Indigenous Australians' cultural maintenance.
Native title refers to rights, recognised by Australian law, held by Aboriginal and Torres Strait Islander groups or individuals to land that derive from their maintenance of their traditional laws and customs. These Aboriginal title rights were first recognised as a part of Australian common law with the decision of Mabo v Queensland in 1992. The doctrine was subsequently implemented and modified via statute with the Native Title Act 1993.
The Yolngu or Yolŋu are an aggregation of Aboriginal Australian people inhabiting north-eastern Arnhem Land in the Northern Territory of Australia. Yolngu means "person" in the Yolŋu languages. The terms Murngin, Wulamba, Yalnumata, Murrgin and Yulangor were formerly used by some anthropologists for the Yolngu.
The Native Title Act 1993(Cth) is a law passed by the Australian Parliament, the purpose of which is "to provide a national system for the recognition and protection of native title and for its co-existence with the national land management system". The Act was passed by the Keating government following the High Court's decision in Mabo v Queensland (No 2) (1992). The Act commenced operation on 1 January 1994.
The Yirrkala bark petitions, sent by the Yolngu people, an Aboriginal Australian people of Arnhem Land in the Northern Territory, to the Australian Parliament in 1963, were the first traditional documents prepared by Indigenous Australians that were recognised by the Australian Parliament, and the first documentary recognition of Indigenous people in Australian law. The petitions asserted that the Yolngu people owned land over which the federal government had granted mining rights to a private company, Nabalco.
Australian Aboriginal culture includes a number of practices and ceremonies centered on a belief in the Dreamtime and other mythology. Reverence and respect for the land and oral traditions are emphasised. Over 300 languages and other groupings have developed a wide range of individual cultures. Due the colonization of Australia under terra nullius concept these cultures were treated as one monoculture. Australian Aboriginal art has existed for thousands of years and ranges from ancient rock art to modern watercolour landscapes. Aboriginal music has developed a number of unique instruments. Contemporary Australian Aboriginal music spans many genres. Aboriginal peoples did not develop a system of writing before colonisation, but there was a huge variety of languages, including sign languages.
Indigenous Australian seasons are classified differently from the traditional four-season calendar used by most western European peoples. Aboriginal Australians and Torres Strait Islander people have distinct ways of dividing the year up. Naming and understanding of seasons differs among groups of Aboriginal peoples, and depends on where in Australia the group lives.
Aboriginal Community Court, or Aboriginal court was the name given to the specialised courts dealing with Indigenous Australian offenders in the state of Western Australia between 2006 and 2015.
Adoption in Australia deals with the adoption process in the various parts of Australia, whereby a person assumes or acquires the permanent, legal status of parenthood in relation to a child under the age of 18 in place of the child's birth or biological parents. Australia classifies adoptions as local adoptions, and intercountry adoptions. Known child adoptions are a form of local adoptions.
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984(Cth), is an Act passed by the Parliament of the Commonwealth of Australia to enable the Commonwealth Government to intervene and, where necessary, preserve and protect areas and objects of particular significance to Australia's Aboriginal or Torres Strait Islander peoples from being desecrated or injured.
The Aboriginal Land Rights Commission, also known as the Woodward Royal Commission, was a Royal Commission that existed from 1973 to 1974 with the purpose to inquire into appropriate ways to recognise Aboriginal land rights in the Northern Territory of Australia. The Commission was chaired by Justice Edward Woodward, who was appointed to the role by Gough Whitlam. It was not long after the 1971 defeat of the Yolngu claimants in the Northern Territory Supreme Court, in Milirrpum v Nabalco Pty Ltd, in the first Aboriginal land rights case in Australia.
Indigenous Australians are both convicted of crimes and imprisoned at a disproportionately higher rate in Australia, as well as being over-represented as victims of crime. As of September 2019, Aboriginal and Torres Strait Islander prisoners represented 28% of the total adult prisoner population, while accounting for 2% of the general adult population. Various explanations have been given for this over-representation, both historical and more recent. Federal and state governments and Indigenous groups have responded with various analyses, programs and measures.
The Burarra people, also referred to as the Gidjingali, are an Aboriginal Australian people in and around Maningrida, in the heart of Arnhem Land in the Northern Territory. Opinions have differed as to whether the two names represent different tribal realities, with the Gidjingali treated as the same as, or as a subgroup of the Burarra, or as an independent tribal grouping. For the purposes of this encyclopedia, the two are registered differently, though the ethnographic materials on both may overlap with each other.
Indigenous land rights in Australia, also known as Aboriginal land rights in Australia, are the rights and interests in land of Aboriginal and Torres Strait Islander people in Australia; the term may also include the struggle for those rights. Connection to the land and waters is vital in Australian Aboriginal culture and to that of Torres Strait Islander people, and there has been a long battle to gain legal and moral recognition of ownership of the lands and waters occupied by the many peoples prior to colonisation of Australia starting in 1788, and the annexation of the Torres Strait Islands by the colony of Queensland in the 1870s.
Shannon Maree Fentiman is an Australian politician. She has been the Labor member for Waterford in the Queensland Legislative Assembly since 2015 and has served as the Minister for Health and Ambulance Services since 2023.
The Uluru Statement from the Heart is a 2017 petition to the people of Australia, written and endorsed by the Australian Aboriginal and Torres Strait Islander leaders selected as delegates to the First Nations National Constitutional Convention. The document calls for substantive constitutional change and structural reform through the creation of two new institutions; a constitutionally protected First Nations Voice and a Makarrata Commission, to oversee agreement-making and truth-telling between governments and First Nations. Such reforms should be implemented, it is argued, both in recognition of the continuing sovereignty of Indigenous peoples and to address structural "powerlessness" that has led to severe disparities between Indigenous and non-Indigenous Australians. These reforms can be summarised as Voice, Treaty and Truth.
Aboriginal Australian identity, sometimes known as Aboriginality, is the perception of oneself as Aboriginal Australian, or the recognition by others of that identity. Aboriginal Australians are one of two Indigenous Australian groups of peoples, the other being Torres Strait Islanders. There has also been discussion about the use of "Indigenous" vs "Aboriginal", or more specific group names, such as Murri or Noongar (demonyms), Kaurna or Yolngu, based on language, or a clan name. Usually preference of the person(s) in question is used, if known.
{{cite book}}: |website= ignored (help)The first ROM ceremony, a 'ritual of diplomacy', performed outside Arnhem Land was held when the Anbarra people..presented a Rom to AIATSIS in 1982.
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