Sources of australian contemporary law 3

Sources of Australian Contemporary Law

ATSI Customary LawInternational Law

there was no single system of law between the groups, but there were many common aspects and many groups shared alliances

Aboriginal and Torres Strait Islander law is based on tradition, ritual and socially accepted conduct

for this reason it is known as ‘customary law’

Aboriginal and Torres Strait Islander Customary Law

Ownership of Land◦ possession of land was a key principle in British

law◦ Indigenous cultures considered the land as

sacred that could not be owned by any one person

when the British settled Australia they made a legal claim under international law that the land was terra nullius, meaning land belonging to no one

ATSI Customary Law Today◦ customary law can

sometimes be taken into account when an Indigenous Australian is charged with a crime

◦ Indigenous elders can sometimes be consulted by those maintaining or enforcing the law

Should ATSI customary law be incorporated into the Australian Legal System?◦ Is it fair?◦ Should everyone be treated by the law equally?

Discussion Point

international law governs the relationship between countries (known as states or ‘nation-states’)

one of the main criticisms of international law is that it lacks enforcement

International Law

Customary International Law ◦ not a written document, it is based on traditions

and customs

Treaties the most common source of international law international agreements are written and binding

on the countries that sign and ratify them they can be bilateral or multilateral

The United Nations◦ 192 members◦ 5 major organs of the UN◦ Most important – General Assembly, Security

Council and International Court of Justice

International Organisations

for international law to become Australian law new legislation is usually required (enacted into domestic law)

State Sovereignty of the Australian Government allows them to agree or decline areas of International Law◦ E.g Kyoto Protocol

Relevance of International Law to Australia