The recognition of the existence of traditional customs and laws in Australia has paved the way for increased use and acceptance of indigenous customary law within the common law. However the existence of legal pluralism has also revealed a number of legal and social complexities that limit the effectiveness of indigenous law in Australia. This essay will identify one of the legal complexities associated with legal pluralism, proof of customary law, and comment on how it can limit the legal outcomes of Indigenous people in Australia.
A definition of legal pluralism:
Legal pluralism can be defined as the presence of multiple systems of law within a culturally diverse society  . The term is partially derived from the definition of pluralism, meaning more than one of the same items in a particular field. Within a particular society or community, more than one source of law is observable  .
Legal pluralism in Australian law:
Refers to the existence or recognition of indigenous customs and laws, otherwise known as customary law, within the common law system. The Mabo case rejected the notion of Terra Nullius (land owned by no-one), and recognised the existence of a traditional system of customs and laws in Australia, prior to settlement by non-indigenous people and the start of the common law system  .
Some commentators refer to this type of pluralism as ‘weak pluralism’  , where one form of law system (the common law system of Australia) is superior to, or has greater recognition in society than, the other law system (Indigenous customary law).
Proof of customary laws in Australian courts
One of the legal complexities of legal pluralism concerns the ability of Indigenous people to meet the common law system requirements of proof of indigenous customs and laws (customary laws).
Although the existence of Indigenous customary laws has been recognised by the common law system in Australia, there is no formal legislation or policy for the admission of evidence of Indigenous customs and laws. It is difficult for Indigenous people to establish cases based on customary law (in the Australian legal system), given the lack of certainty in the process.
Mabo (1992) acknowledged the existence of traditional rights and interests to land under common law. To Indigenous groups, the decision represented an opportunity to seek recognition of Native Title to land throughout the country. However, two preceding High Court decisions, Western Australia v Ward (2002) and Yorta Yorta v Victoria (2002), highlighted the difficulties faced by Indigenous people in proving their connection with the lands.
In Ward it was found that Native Title claimants are required to satisfy the judicial requirements of Section 223 of the Native Title Act 1993 (Cth)  . The claimant must be able to demonstrate the connection to land through customary laws  .
‘The question in a given case whether they are rights and interests which are possessed under the traditional laws acknowledged, and the traditional customs observed, by the relevant peoples……….It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs’  .
The Yorta Yorta decision found Native Title claimants were required to show evidence (to the satisfaction of the court), that the traditional laws and customs have been continuously acknowledged and observed since the acquisition of British sovereignty, to the present day  . Claimants are required to prove not only that the indigenous custom or law existed in the land area, but also that the same custom or law was observed continuously since sovereignty (1778)  .
Proving their connection to the land and proving the continuity of a customary law is difficult for Indigenous people to achieve, as historically they have been denied the right to maintain their customary law. This is largely due to the introduction of various Government legislation and policies, designed specifically to govern Indigenous people, during the following time periods:
Undeclared warfare period (1830 to 1910),
Protection period (1910 to 1950) and
Assimilation period (1950 to 1972)
Violent conflict between Indigenous people and British soldiers defined the undeclared warfare period (also known as the killing times). Many Indigenous people were killed as a result of the conflict or from the onset of disease. Settlers were rarely tried for violence against Indigenous people. The Indigenous people who survived this period were often removed from their lands  . In the Yorta Yorta case, Justice Olney found that (during the undeclared warfare period) ‘The Aboriginal population of the area had been drastically reduced in number by disease and conflict’  .
The Aboriginal Protection and Restriction of the Sale of Opium Act 1897 was introduced during this period. The Act permitted the Minister to remove, detain and relocate aboriginal people to reserves and allowed the Minister to make further regulations to control the activities and practices of the aboriginal people. Police were given power to dispense “retributive justice” to Aborigines. As a result of this legislation many Indigenous people lost their lives in conflict with police  .
The undeclared warfare period gave way to the protection period. At this time the Government believed the Indigenous race were headed for extinction, and introduced a range of measures designed to protect (or segregate) the Indigenous community from the wider society. The Government took legal responsibility for Indigenous people, forcing them to live on specially designated Aboriginal reserves. The introduction of the Protection of Aboriginals and Restriction of the Sale of Opium Amendment Act in 1934 included the establishment of a protection board, which had the power to remove Indigenous children from their parents.
Government policy soon shifted from protection of Indigenous people to integration of Indigenous people into non-indigenous communities, during the assimilation period. The assimilation period represented the Governments attempt to combine two separate races into one community. Many Aboriginal children were taken from their parents and placed in European families, in what became known as the Stolen Generation.
By the time the Racial Discrimination Act was introduced in 1975, many indigenous communities had lost their connection with their traditional lands, as a result of the government policies and legislation mentioned above. The loss of the right to continue practising customary law means Indigenous people have difficulty meeting the requirements of Section 223 of the Native Title Act. In Yorta Yorta,
The Yorta Yorta community failed to prove their connection to the land, due to the lack of proof of existence of customary laws. ‘Where such connection has not been maintained by the community from the time of the acquisition by the Crown of sovereignty to the date of the application to the Court, the relevant native title will have been extinguished at common law and the statutory definition contained in section 223(1) of the NTA will not be satisfied’  .
In handing down the decision in the Yorta Yorta case, Justice Olney made no allowance for the intervention of Government in the affairs of Indigenous people, stating there was no ‘warrant within the Native Title Act (1993) for the court to play the role of social engineer, writing the wrongs of past centuries’  .
In his decision, Justice Olney did recognise the difficulties of proof where reliance is placed on oral evidence rather than written evidence.
In the Australian legal system, Indigenous customary law is treated as a matter of fact due to the unwritten and non-uniform nature of the law. Evidence must be shown to prove the existence of the fact  .
One of the constraints facing Indigenous claimants is the preference within the Australian legal system for documented written evidence as opposed to oral or hearsay evidence. The chances of a successful Native Title Claim are limited by the courts ability to admit opinion or hearsay evidence. The lack of legislation governing the admission of evidence is a contributing factor. ‘Success in a legal claim depends on (the) presentation of sufficient admissible evidence to establish it (the claim) in a court of law’  .
This was highlighted in the Yorta Yorta case, where a large amount of oral evidence was not considered.
‘Evidence based upon oral tradition passed down from generation to generation does not gain in strength or credit through embellishment by the recipients of the tradition and for this reason much of the testimony of several of the more articulate younger witnesses has not assisted the applicants’ case’  .
‘The Court has derived little assistance from the testimony of the various experts who have given evidence in this proceeding and this because apart from the recorded observations of Curr and Robinson, much of the evidence was based upon speculation’  .
‘The most credible source of information concerning the traditional laws and customs of the area……….is to be found in Curr’s writings………..His record of his own observations should be accorded considerable weight. The oral testimony of the witnesses from the claimant group is a further source of evidence but being based upon oral tradition passed down through many generations extending over a period in excess of two hundred years, less weight should be accorded to it than to the information recorded by Curr’  .
The difficulties in proving, or relying on, the existence of indigenous customary law are not confined to land rights issues. It also applies to cultural heritage and sentencing cases.
The case of Underwood and Ors v Gayner, where the defendants were found guilty of breaching the Fisheries Act 1905 (WA), highlighted the courts preference for written documentation of proof as opposed to oral evidence. In this case the majority of the oral evidence admitted contradicted the written documentation supplied by an expert on tribal matters  . The decision was overturned on appeal.
Law courts are obliged  to consider certain relevant issues, including the background of the offender and the nature of the offence when sentencing offenders  . This also includes the relevance of Indigenous customary law in criminal law cases involving Indigenous offenders. Inconsistencies occur when Indigenous offenders commit acts that are allowable under customary laws, but illegal under the common law.
In Jamilmira v Hales, the offender, Jackie Jamilmira was convicted of unlawful sexual intercourse with a 15-year-old girl. Jamilmira, an Indigenous male from the Burarra tribe, claimed he was acting in accordance with Indigenous customary law, because the 15-year-old girl had been promised to him as a wife. During the case evidence was tabled proving the continued existence of Burarra customs, including pre-arranged marriages to underage girls. However the presiding judges in the case confirmed the illegality of the act under common law.
In handing down his decision, Justice Mildren confirmed the priority of the common law over the customary law in determining the appropriateness of the sentence. ‘It should be made clear that whenever there is a direct conflict between the law of the land and Aboriginal customary law, the law of the land must prevail…..the weight to be given to the effect of customary law or cultural factors by a sentencer will vary according to the circumstances’  .
Justice Martin also confirmed this view by stating in his decision that the protection of the (common) law for girls under the age of 16 prevails over the laws of the Aboriginal community and to hold otherwise would send the wrong message to the Aboriginal community  . Therefore, proof of Indigenous customary laws are limited to those laws that are legal under the common law.
In response to rising levels of domestic violence among Indigenous people in the Northern Territory, the Government introduced the Northern Territory National Emergency Response Act in 2007. Under the act Northern Territory law courts cannot consider customary law when determining the gravity or seriousness of a crime committed by an offender  . In effect, the act has removed indigenous customary law as a relevant consideration in sentencing in the Northern Territory, further limiting the legal outcomes for Indigenous people who live there.
Despite the recognition of the existence of customary law in Australia, Indigenous people are restricted in their ability to argue common law cases, due to a number of legal complexities. Reliance on Indigenous customary law in Australian courts is limited because the common law only recognises its existence.
The identified lack of legislation or policy surrounding proof of customary laws has limited the legal outcomes for Indigenous people in Australia. Government intervention in Indigenous affairs, by way of policy and legislation, and the effects of European settlement, has resulted in some Indigenous tribes losing their connection to the land and therefore, their proof of customary laws.
J Griffiths, What is Legal Pluralism, Journal of Legal Pluralism nr24, 1986
Norbert Rouland (P.G. Plannel), Legal Anthropology, The Athlone Press, 1994
J.M. Marychurch, Globalisation, Federalism and Legal Pluralism: The Challenges of Diverse Legal Cultures in Federal Systems, University of Wollongong, 2003
NSW Law Reform Commission, Report 96 – Sentencing: Aboriginal offenders, 2000
L de Plevitz & H Loban, Access To Information On Civil Law For Remote And Rural Indigenous Peoples, Indigenous Law Bulletin, Vol 7 Issue 15, Nov/Dec 2009
Jennifer Corrin, Pleading and Proof of Indigenous Customary Law in Queensland Courts, University of Queensland 2010
Peter Billings, Still Paying The Price For Benign Interventions? Contextualising Contemporary Interventions In The Lives Of Aboriginal Peoples, Melbourne University Law Review, 2009
Mabo (and others) v State of Queensland (No.2) (1992) 175 CLR 1
Western Australia v Ward (2002) 191 ALR 16
Yorta Yorta Aboriginal Community v Victoria (1998) FCA 1606
Jamilmira v Hales  NTCA 9 (15 April 2003)
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