Chapters

There is a distinction between Aboriginal law and the law which governs Aborigines in Australia today. . Aboriginal law is law that existed before the coming of the common law system that we continue to follow today.

For a long time, the idea of Aboriginal law existing in Australia, particularly in a place like Tasmania where Aboriginal society had been almost destroyed, was met with resistance by the legislature and courts of Australia. But Aboriginal law is a fact. It continues to exist in Aboriginal communities, including the Tasmanian Aboriginal community, to the extent that its members continue to observe customs and practices.

Australian law recognises certain aspects of Aboriginal law and custom within its own system. This includes such things as traditional rights to fishing, or land rights, community involvement in rehabilitating or punishing criminal offenders. Some of this law stems from developments in international law, and is generally reflective of greater recognition of the independent cultural identities of indigenous people across the world. This chapter sets out the important parts of Aboriginal law both as it affects Aborigines and the general Australian community.

What is Aboriginal law?

Aboriginal law is distinct from Australian law in that it covers all aspects of Aboriginal life – it is culture, land and law. The oral traditions of Aboriginal peoples inform Aboriginal law, the landscape is part of the oral tradition, and so the land is part of the law. The stories and the landmarks that indicate the stories create the law. In some ways you can draw parallels between Aboriginal law and Sharia law, derived from the Koran, in that it covers all aspects of life – family, community, crime. In the common law tradition, of which Australia is a part, many things we would consider to be social decisions, and not legal decisions, are considered to be part of Aboriginal law.

Because Aboriginal law is so different from common law, it can be difficult to understand. The Australian legal system does not guide us on how to behave in all aspects of our lives, but Aboriginal law does. Australian law doesn’t tell us who can and can’t eat a certain animal, or how infidelity in marriage should be punished. These are considered matters of personal choice. In Aboriginal law this is not the case.

However, time has radically altered nearly all Aboriginal communities, and inevitably the stronger of the two systems of law prevailed – this is the Australian legal system. This system recognises Aboriginal law, but Aboriginal law is not independent of this legal system.

© 2013 Hobart Community Legal ServiceFeedbackDisclaimer