2. Aboriginal Lore within the Australian Legal Framework

Traditional Aboriginal Lore  

Aboriginal lore is a complex belief system, which upholds customs and stories from the Dreamtime. These stories assist living in harmony and in accordance with connection to land and totemic symbols. 

Traditional lore is not a set of laws used by all Aboriginal peoples throughout Australia. Though often similar, Lore and punishments vary from place to place.  Traditional lore is more comparable with the ten commandments, it has rules regarding “homicide, sacrilege, sorcery, incest, abduction of women, adultery, physical assault, theft and insult, including swearing. Traditional lore also makes not doing things an offence, for example failing to honour ritual privileges and duties or not sharing food. As in western concepts of law, if there has been a transgression of the lore/law, there are consequences to face.  

Punishments under traditional lore may include; payback - often corporal e.g. spearing limbs and other maiming. This kind of punishment is considered an offence in Australian law and is punishable with fines and/ or imprisonment as this is considered grievous bodily harm. Other punishments include being ‘sung’, sometimes also referred to as ‘pointing the bone.’ This is where a powerful elder, calls on spirits to do ill to those who have committed a crime or otherwise abused their culture. Being sung may result in the victim being physically sick and sometimes dying, from their ‘illness’. 

 

More information on customary lore can be found in the following sites: 

The term 'lore' refers to the customs and stories the Aboriginal peoples learned from the Dreamtime. Aboriginal lore was passed on through the generations through songs, stories and dance and it governed all aspects of traditional life. It is common to see the terms 'law' and 'lore' being used interchangeably. 

Law: Also known as Lore. Handed down by the Creation Ancestors and upheld by Aboriginal communities for thousands of generations, Law includes the accepted and traditionally patterned ways of behaving and shared understandings relating to land, language, ways of living, kinship, relationships and identity. 

In 1986, The Australian Law Reform Commission (ALRC) produced a report from discussions on applying Aboriginal customary law in particular cases. Discussions that lead to this report started almost 10 years earlier.  It is a complicated area due to: 

  • The vast diversity in Aboriginal peoples’ lifestyles, degree of tradition followed and other international cultural influences. 

  • There is no clear, single ‘authentic version’ of customary law and it is a ‘series of dynamic and changing systems applying to different groups of Indigenous Australians’ 

  • Some known customary punishments are considered offences under Australian law. 

Though there has never been legal recognition for Aboriginal customary law, the ALRC report highlighted the importance of recognition of customary law and appropriate consultation with community members.  

It is vital that this consultation is done appropriately and with the right community members, Elders etc. for it to be successful. Consultation may include repeated visits to communities and include consultation with women, which is not generally part of customary law. 

 

Aboriginal Management of Legal Issues 

There can be a culture clash to deal with in judiciary matters. This often means reconciling the law with the lore. This is especially important for people who live in more traditional communities. To assist Aboriginal peoples with judicial matters, Aboriginal legal services have been set up and have been running for over 40 years. 

The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) is the peak national body, which oversees all the State/Territory based services; Aboriginal and Torres Strait Islander Legal Services (ATSILS) 

NATSILS provide legal advice, assistance, representation, advocacy and community legal education to Aboriginal peoples in the justice system. The ATSILS in each State/ Territory offer culturally appropriate legal assistance and services. NATSILS represents the following ATSILS: 

  • Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd (ATSILS Qld) 

  • Aboriginal Legal Rights Movement Inc. (ALRM) 

  • Aboriginal Legal Service (ALS NSW/ACT) 

  • Aboriginal Legal Service of Western Australia (Inc.) (ALSWA) 

  • Central Australian Aboriginal Legal Aid Service (CAALAS) 

  • North Australian Aboriginal Justice Agency (NAAJA) 

  • Victorian Aboriginal Legal Service Co-operative Limited (VALS).  

 

These ATSILS assist communities to navigate legal issues impacting their lives. This happens through advocacy and community consultation. Where possible ATSILS employ Aboriginal people, to work with and support fellow Aboriginal and Torres Strait Islander people in the judicial system. 

 

Aboriginal Community Organisations  

Community organisations are set up as corporations, which are answerable to their community. This supports the underlying theme to self-determination; that Aboriginal peoples should have a say in what happens in their own community.   

These organisations must have processes that enable free-flowing communication and ongoing consultation, to address the needs and aspirations of their community.  These consultation processes, give community members the opportunity to voice their opinion and vote on decisions and issues. Community members may also seek employment and other opportunities, through their community organisations. 

Good governance is important to the effectiveness of any organisation.  Aboriginal community organisations are now urging their board and other interested community members to seek governance training. Having a clear understanding of best practice in business governance, gives community organisations a greater opportunity to make the law and their lore, work together for the benefit of the whole community.  

In some cases, there may be conflict of interest issues and corruption by power-hungry individuals, who feather their own personal nest, at the expense of the whole community. Where community members are blindsided or kept out of consultation, they may not know or, not agree with what is being decided for them. The organisation must have processes that pre-empt potential problems, so they can be managed. 

Many issues will have a range of other associated problems to address. For example, if a child is not attending school, you need to consider other issues relating to the family, such as housing, possible health problems, the possibility of bullying, racial discrimination, perceptions of safety and the employment-related issues of parents and extended family members. 

Community organisations must work closely with community members to ensure they are fully and appropriately represented. Transparency and accountability are key features for effective community organisations, which enables them to support their communities to prosper. These key features enable community members to have appropriate buy-in and control of their organisation.