Aboriginal Law in Australia - Essay Example

ABORIGINAL LAW IN AUSTRALIA By Student’s Name Code + Name of Course Professor/Tutor Institution City/State Date Aboriginal Law in Australia The Aboriginal law is law, which existed before the initiation of the common law system, which is followed in Australia. The Australian law identifies particular aspects of Aboriginal customs and laws within its own system. This comprises things like traditional land rights, rights to fishing, community contribution in punishing or rehabilitating criminal offenders, etc. The Aboriginal law is separate from the Australian law as it spans all elements of Aboriginal life – it is law, culture, and land. The oral customs of Aboriginal peoples apprise Aboriginal law with the landscape comprising a section of the law. Given that Aboriginal law is very distinct from the common law, it can be challenging to understand. The legal system of Australia does not provide guidance on how to behave in all facets of life, but the Aboriginal law does. Nevertheless, time has radically changed almost all Aboriginal communities, and unavoidably the sturdier of the two systems of law applies i.e. the Australian legal system. This system recognizes the Aboriginal law. However, the Aboriginal law is not autonomous from this legal system. This essay assesses Franz’s idea of ‘the law of multiple edges’ in discussing Australia’s Aboriginal law. The essay further discusses Tessa Lea’s perspective on the policies governing indigenous health in Australia. The idea on of multiple edges of law comprises the application of legal pluralism in law practice in Australia. According to Von Benda Beckmann (2006, pg. 51), a scenario of legal pluralism is a situation whereby the legal institutions and the law are not all subsumable in one ‘system.’ This applies in the Aboriginal and Australian law situation whereby each of these laws derives their roots in the events that are self-regulated. These activities that may support, frustrate, supplement, or ignore each other. In this case, the ‘legislation,’ which is operative on the ‘foundation’ of society, is the outcome complex and often practice unpredictable isolationism trends, competition, negotiation, interaction, isolationism etc. (Von Benda Beckmann 2006, pg. 52). The association between Australian and the Aboriginal law is particularly interesting under legal pluralism conditions. The emerging literature concerning these laws pays comparatively little attention to the intricacies of the relations between Australian and the Aboriginal law, which generate from the coexistence of legislative orders. Many people in Australia live under plural legitimate constellations. For instance, the Aboriginal laws negotiate one set of rules associated with personal law, such as customary law, alongside other international human rights or religious law (mirroring a more transnational perspective), as well as with state law, which also reflects a level of heterogeneity. Von Benda Beckmann (2006, pg. 53) argues that legal pluralism deserves a major position in the assessment of the Aboriginal law. The idea highlights the ways in which legal establishments in state law, traditional and religious law operate with their individual spatial claims for validity. Under conditions of plural laws, usually a product of colonial rule, contradictory and diverse notions of boundaries and their legal relevance come into focus. The ways in which laws between the variations in laws are conceived and made legally meaningful varies. In different respects. Relations between social organization and space, the virtual nature of constructions of place and space, the scale on which they function, and the moral connotations and political loading pertaining to certain spaces may all vary. Thus, multiple legal establishments that relate to the Aboriginals open up several arenas for the exercise of political governance, the localization of obligations and rights, as well as the establishment of social institutions and relationships, which are characterized by different levels of abstraction, varying moral connotations and temporalities (Von Benda Beckmann 2006, pg. 62). Von suggests that there is need for research on the law as a critical element in the ways the Aboriginal laws are shaping social demeanour under situations of legal pluralism necessitates more hypothetical reflection and practical scrutiny. Understanding how law functions, or is mobilized, in these situations needs a recalibration of the association, which exists between social space and law. Franz therefore champions for asking the more theoretical, fundamental, questions. This is because the addition of the legislations of the Aboriginals into the Australian law system is a critical situation. In Australia, customary law has been applied in responding to challenges in the Aboriginal communities whenever the non-aboriginal law was unsuccessful, such as in issues of alcohol related issues, family violence, and juvenile behavior. Recently, there has been generate interest in normative questions concerning non-state and state-wide justice systems from diverse pressure groups e.g. law development and transformation organizations. Many of these groups have identified the significance of official and traditional systems as accompaniments to the official system, particularly after conflict scenarios, and that are needed to reform them. Franz von Benda-Beckman claims that under the law may change under the effect of a different law order, and syncretic or new law forms may come up and become institutionalised, modifying or replacing previous law forms. Franz further contends that these kinds of revolution processes are an important aspect of the law of ‘legal pluralism’ and that the tendencies are never uni-directional (Von Benda Beckmann (2006, pg. 62). Buchanan posits that the folly of the law in its interaction with Aboriginal laws have been identified. However, alternate methods of addressing the interaction are not well explored in lawful grants (Buchanan 2010, pg. 287). Buchanan states that the approach towards an altered the law’s conceptualization might be successfully returned via the jurisdiction of embodied experience. According to Tamanaha, legal pluralism has some disadvantages. Despite its merits in demonstrating its potential in discussing cognitive- kind of queries about how plural legal systems function within the Australian influence, the concept currently offer no great support in connection with responding to normative queries concerning how plural legal systems could link best with each other (Tamanaha 1993, pg. 192). This also applies to issues associated with what Tamanaha calls ‘planned pluralism’ (Tamanaha 1993, pg. 193). An inquiry of this nature comprises questioning queries like the appropriate measures to be put in place to guarantee that the various laws, which prevail in any given setup function in a manner that increases their capacity to enrich, fertilize, and assist one another, rather than to conflict and undermine each other. Tamanaha continues to assert various elements that have led to constraining the progress of the law into a beneficial concept in the hands-on law reform context particularly in Australia. Firstly, the previous ten years, in spite of gaining such great developments early on, the law of compound ages has disintegrated into a hypothetical mess, which seems not able to push itself. Rather than advancing the theory towards establishing clearer comparative and analytical outlines for reviewing real non-country justice structures and their associations, it has been entangled in various internal hypothetical discourses, which have reduced its practical relevance. Lea maintains that it is widely reported and well known that Aboriginal Australians are sicker and, in ordinary situations, die much earlier in comparison to non-Aboriginal Australians (Lea 2008, pg. 16). The Bureau of Statistics of Australia and the AIHW have in the past three decades ventured into reviews, inquiries, programs, and policies, programs into the Aboriginal Australians’ health. Nevertheless, improvements in outcomes of health have been limited. The lack of development in minimizing the gap in life expectancy and health between Aboriginal and non-Aboriginal Australians suggests the need for all sectors, comprising the health sector, to assess their services, structures, policies, processes, and services and to establish and adopt the changes needed to improve health outcomes of the Aboriginal Australians (Lea 2008, pg. 67). It is an axiom, maybe, to point out that one of the main ways that a health system affects the health of populations is through the application of policy ideas. Nevertheless, policy ideas advance and are taken up by the bureaucrats accountable for their implementation at various levels within organisations and in populations or communities. Lea’s work provides valuable and rare insights into the association between the ‘system’ in which policy is executed and the workforce, which is actually charged with service delivery. The history of annexation and of government rule over Aboriginal people has been entrenched in the practices and policies of organisations and within the world outlooks, and training and education of health professionals (Lea 2008, pg. 26). Lea suggests that several changes are needed to address the challenges that are faced by the Aboriginals. The research in particular points to, adding a critical reflection on the work, membership, and roles of the health bureaucracy in refining Aboriginal health (Lea 2008, pg. 86). This also includes attitudinal change among non-Aboriginal Australians as well as leadership and resolving to do things differently. Ultimately, there is a need to create institutional space for accommodating Aboriginal legislations in the wider Australian law system. There ought to be official proposals for the administration of a domestic command by the Aboriginals. Additionally, there is a need to embrace ‘pods of justice’ different in function and form, independent but which serve the whole state. In conclusion, Aboriginal law existed before the initiation of the common law system in Australia. The Australian law identifies certain aspects of Aboriginal customs and laws within its own system. Given that Aboriginal law is very distinct from the common law, it can be challenging to understand. Thus, the idea on of ‘multiple edges of law’ can be applied in legal pluralism in law practice in Australia. This applies in the Aboriginal and Australian law situation whereby each of these laws derives their origins in the events that may encourage or frustrate each other. The association between Australian and Aboriginal law is particularly interesting under legal pluralism conditions. As such, multiple legal establishments that relate to the Aboriginals open up several arenas for the exercise of political governance, the localization of obligations and rights, as well as the establishment of social institutions and relationships. Ultimately, there is need to establish a space for accommodating the Aboriginal law in the wider Australian law system. This will assist in providing an official proposal for the provision of a domestic law by the Aboriginals. Bibliography Buchanan, R, M 2010, ‘Passing through the Mirror’’: Dead Man, Legal Pluralism and the De-territorialization of the West. Law, Culture, and the Humanities Vol. 7, no. 2, pp. 289-309. Lea, T 2008. Bureaucrats and bleeding hearts: Indigenous health in Northern Australia. Unsw Press. Tamanaha, B, Z 1993, ‘The Folly of the “Social Scientific” Concept of Legal Pluralism.’ Journal of Law and Society Vol. 20, pp. 192-217. Von Benda Beckmann, F 2006, ‘The multiple edges of law: dealing with legal pluralism in development practice.’ The World Bank Legal Review, Vol. 2, pp.51-86 Read More