Aboriginal Customary Law VS European Law Essay -- essays research pape

native Australian customary law and European law have been at odds since the first years of the European invasion, but only recently has the clash come into the open. Stuart MacMillan of the aborigine Resource and Development Services in the Northern ground says that remote primeval communities there and in westerly Australia, South Australia and Queensland see no reason why they should submit to "whitefella law".The governments of the Northern Territory and Western Australia are investigating how innate law can be incorporated into state law. Chris Sidoti of the Human Rights Council of Australia says "Some people would say that world rights runs opposite to indigen law, others that it provides a universal standard to which other legal traditions must adapt. Customary law cant remain immutable. The problem for those trying to bring the two dodgings into line is that human rights law derives from a western legal tradition which frequently contradicts Aboriginal law.Colin McDonald, a Darwin barrister and expert in customary law, says that on such issues Australias legal system may simply have to bite the bullet and go against the norms of international human rights.Aboriginal women have often claimed that the law has been slanted to support the rights of indigenous men over women.Lowitja ODonoghue, who formerly chaired the governments Aboriginal affairs body ATSIC, believes that Australian law should be more aggressive in such cases. Some aspects of Aboriginal law are falling out of practice. Chris Sidoti believes that whatever balance is struck willing be as distinct from traditional European law as it is from traditional Aboriginal law. "For traditional people, being put in jail is more inhuman than spearing, and any unified law would have to recognise that. Aboriginal Customary LawThe High Court did, however, conclude in that case (a conclusion confirmed in WA v Commonwealth, Wororra Peoples v WA and geological fault Biljabu and ot hers v WA, High Court, March 16 1995) that some Aboriginal land law (that which attracted the status of native title) god the colonisation process. What is far less certain is the fate of Aboriginal customary laws that were not concerned with title to land. Did traditional laws on subjects such as family relationships, title to goods, community rightness mechanisms, inheritance and criminal law survive c... ...e necessary, and those laws which were to be applied could not be made applicable to all of the Aboriginal peoples but only to some.It would not be inconsistent with the principle of par before the law that, where members of the Aboriginal race have special needs, those should be recognised by special rules laid down by the law. Further, the law is compromising enough to allow the courts to consider the special situation of an Aboriginal party where that is relevant. As the courts have recognised, the sentencing of Aboriginal offenders presents particular difficulties. Jud ges, in an attempt to do justice in discharging the difficult role of sentencing tribal and semi-tribal Aboriginal persons, have gone further. Clearly the ordinary criminal law is capable of facing these difficulties. It is neither necessary, nor desirable, to founder to the Aboriginal peoples the rules of their customary law rather than the general law. The attempt to uphold Aboriginal customary law is one aspect of the notion that the Aboriginal peoples will benefit if they continue to be treated as a class separate from the rest of the community, which must necessarily be a dependent and discriminate class.