NCJ Number
96005
Date Published
1984
Length
14 pages
Annotation
The 1981 incident of the stabbing by Moses Mamarika of his younger brother, the subsequent stabbing of Moses by his other three brothers, and the resulting court appearances by various family members illustrate the conflicts which arise between the operation of aboriginal customary law and the Australian criminal law.
Abstract
The resolution of such conflicts is a key issue confronting the Australian Law Reform Commission in its reference on aboriginal customary law. From the establishment of the colony until recently, it has been considered inappropriate that the customary practices and rules of Aborigines should be recognized within the general legal system. Several factors prompted reconsideration of this position: the discriminatory treatment of Aborigines and their disproportionate representation in the criminal justice system, the failure of the general legal system to deal effectively and appropriately with inter-aboriginal disputes, the movement away from assimilation and integration policies toward policies based on self-management, and the perceived injustice of denying all recognition to distinctive and long-established aboriginal beliefs and actions. A number of commission research papers express the view that recognition of aboriginal customary law is not racially discriminatory nor a denial of equal justice or equal protection if the following principles are implemented: there is a reasonable response to the specific needs of those aboriginal people affected by the proposals; it is generally accepted by them; and it does not deprive individual Aborigines of basic human rights or of access to the general legal system. Only a general customary law defense to crimes affecting others may cause problems under these criteria. Twenty references are provided.