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Find two cases on Indigenous customary law and discuss how they relate to the recognition of Indigenous customary law in Australia(TM)s legal system

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Introduction

PART B Find two cases on Indigenous customary law and discuss how they relate to the recognition of Indigenous customary law in Australia's legal system. Aboriginal customary law as well as any other law is shaped by the individual and culture of the society. Today in Australian society the use of a combination of customary aboriginal laws and western laws are used in an effort to satisfy and maintain stability in the Aboriginal and wider community. In the study of the Mabo case and the case of Minor, it can be seen that conflicts may arise due to the differences in law, in the case of Mabo , Meanwhile the combination of traditional aboriginal law and The High Court's decision in the Mabo v Queensland became an important milestone in the recognition of Indigenous customary law in the Australian legal system. It left behind the myth that Australia was terra nullius and as a precedent highlighted that there was no longer a lawful reason as to why customary law is not taken into consideration in some indigenous cases. The case was brought forward by Eddie Mabo, David Passi and James Rice who all were Miriam people from the Murray Island in the Torres Straits. ...read more.

Middle

to a criminal jurisdiction. Customary laws were not recognised in common law but rather seen as precluding the existence of competing Aboriginal criminal jurisdictions. His Honours states "Even if it be assumed that customary criminal law of Aboriginal people survived British settlement, it was extinguished by the passage of criminal statutes of general application. In Mabo (No 2), the court held that there was no inconsistency between native title being held by people of Aboriginal descent and the underlying radical title being vested in the Crown. There is no analogy with the criminal law"4 Even though there was evidence of the existence of a native law, the situation of the Mabo case is substantially different to a criminal jurisdiction. In holding a criminal status the application of traditional laws is not applicable to offenders, they are to be treated like any other criminals under the general common law. However nonetheless Courts still incorporate and take into consideration of customary laws in certain cases. The Mabo case provided a gateway for many other indigenous cases who argue the right for the traditional customary law to be taken into consideration, many cases like Coe v Commonwealth and R v Wilson Jagamara Walker5 were some of the first few cases that argued that there was no longer a lawful reason as to not to take account of aboriginal customary laws. ...read more.

Conclusion

In order to give fairer sentences and more just decisions it is necessary to take into consideration of the offender's context and make decision's that are in the best interest in the offender's community as well as the wider community. Through the study of the two cases Mabo v Queensland and R v Minor, we notice how customary laws are incorporated and considered in the Australian Legal system. The Mabo case was a significant in helping the recognition of the native laws of the indigenous people, which lead to cases like the case of Minor where traditional punishment was considered in the final sentencing of the respondent. 1 Mabo and Ors v The State of Queensland (No.2) (1992) 175 CLR 1. 2 Meyers, G. D. & Muller, S. C. Through the Eyes Of The Media (Part 1): A Brief History of the Political and Social Responses to Mabo v Queensland (Murdoch University Environmental Law and Policy Centre, 1995). 3R v Minor (1992) 59 a crim r 227 (1) 4 Mabo v Queensland (No 2) [1992] HCA 23 5 Law reform Commission "http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/alrc/custlaw2/286.html" Aboriginal customary law, viewed 9th June 2008 6 (1992) 59 A Crim R 227 7 (1992) 59 A Crim R 227 8 (1992) 59 A Crim R 227 ?? ?? ?? ?? 1 ...read more.

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