Indigenous Australian customary law facts for kids

Indigenous Australian customary law refers to the special rules and ways of life that belong to Indigenous Australians, which includes both Aboriginal and Torres Strait Islander people. These rules have been followed for thousands of years.

Understanding Indigenous Laws and Customs

Indigenous Australians are made up of two main groups: Aboriginal peoples and Torres Strait Islanders. They have different histories, cultures, and customs. For example, Torres Strait Islanders often practice a special kind of adoption called kupai omasker. This is when a child is raised by extended family or friends. The reasons for this adoption can be different depending on the specific Torres Strait Islander culture.

Most studies about these traditional laws have focused on Aboriginal customs and rules. Aboriginal customary law grew over a very long time from the accepted ways of living and social rules within their communities. These laws guide how people behave, what happens if someone breaks a rule, and how people connect with their land and with each other through family relationships.

It's important to know that Indigenous customary law is not the same all over Australia. The rules can be very different between various language groups, family groups (clans), and regions.

Law vs. Lore: What's the Difference?

In some Aboriginal communities, the words "law" and "lore" are used to tell the difference between the traditional Indigenous system and the legal system brought by Europeans. "Law" usually means the system introduced when Europeans first came to Australia. "Lore" refers to the Indigenous traditional system. Children learn this lore from a young age. It teaches them how to interact with the land, their kinship (family connections), and their community.

Aboriginal customary lore is deeply connected to cultural customs, practices, and stories from the Dreamtime. These customs are passed down from older generations to younger ones through things like songlines (songs that tell stories about the land), traditional stories, and dances. These cultural works are shared through oral tradition, meaning they are spoken and performed, not usually written down.

How Modern Law Recognises Customary Law

For a long time, the legal system brought by European settlers did not really consider Indigenous customary law. However, since the late 1900s, some government groups have looked into how to include Indigenous laws more formally into the modern legal system.

Reports from groups like the Australian Law Reform Commission have discussed how useful it would be to recognise customary law, especially in cases involving Aboriginal Australians. In the Northern Territory, some laws and courts now specifically mention customary law. This helps them understand family relationships and social expectations within Indigenous communities. These changes can sometimes be tricky, especially if customary law seems unclear or goes against modern human rights.

A good example of this recognition happened on 17 July 2020. The Queensland Government introduced a new law to officially recognise the Torres Strait Islander practice of traditional adoptions (kupai omasker). This law was passed on 8 September 2020 and is called the Meriba Omasker Kaziw Kazipa Act 2020, which means "For Our Children's Children".

Land Rights and Traditional Law

When European settlers arrived in Australia, they claimed the land as terra nullius. This Latin phrase means "nobody's land." Because of this idea, traditional Indigenous lore about land ownership was completely ignored by Australian courts for a long time.

However, in 1992, a very important legal case changed things. This was the Mabo decision. In this case, the idea of terra nullius was finally thrown out. The court decided that Indigenous customary rights to land could be recognised. This would happen if those rights had been continuously kept since the time of settlement and had not been taken away by someone else being given legal ownership of the land. Today, Indigenous customary claims to land are managed by a law called the Native Title Act 1993.

Examples of Customary Law in Different Regions

Arnhem Land's Madayin Law

In Arnhem Land, a region in the Northern Territory, the Yolngu people have a complex system of customary law called Madayin. This law includes the rights and responsibilities of the people who own the law, also known as citizens (rom watangu walal, or simply rom).

Madayin involves not just rules, but also special objects that represent the law, spoken rules, names, song cycles, and sacred places. These are all used to keep the law strong, develop it, and teach it to new generations. The idea of Rom and its related ceremonies are also shared by the nearby Anbarra people, who also live in Arnhem Land.

See also

• Australian Aboriginal Sovereignty
• Customary law in South Africa