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Flashcards in ATSI customary law Deck (12)
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diverse nature of customary laws

no set definition for ATSI customary law as ATSI people had a complex legal system


what are the ATSI customary law characteristics

- spiritual basis, the significance of land and water
- family and kindship ( discipline )
- ritual and oral traditions
- mediation and sanctions


approximately how many ATSI nations exist



relationship to a spiritual basis, significance to land and water

land + water have great spiritual importance

- in ATSI law land is collectively owned
- land is central to the culture and forms the basis of religion and law

- bodies of water hold special significance


key features of ATSI law

- agreement on laws throughout the whole group
- orally based
- based on rituals and traditions
- family and kinship ties


family and kinship

- inclusion of family and social relationships into the application of the law
- centrality of community

- discipline
- shame


ritual and oral traditions

- various interpretations of the dreaming
- ritual within the process (color, symbols, etc )

- disadvantage = being lost or forgotten
- law could easily be modified
- laws were able to be ignored when society deemed them as unrecognizable


mediation and sanctions

- due to the strong bond between family and clan, mediation was the favored form of dispute resolution
- when dispute could not be resolved with mediation sanctions were used


- revenge
used when a person committed murder, the family was given the right to take their revenge

- trial by ordeal
family of the victim throws spears at the accused,
blunt spears were thrown at the victim but they could not throw them back,
accused dances in front of the victim, if spear strikes accused in the thigh, they are forgiven
if not, further ordeal is necessary

- inquest
common to hold an inquest after a person had been murdered
attempt to determine the cause of death and who caused the death
relative would go to sleep with their head resting on the victim and dream of the murderer

- Fighting, insulting, social ridicule, and isolation
fighting was another common way to punish suspected murderers
insults and social ridicule were also common


relevance of ATSI law to contemporary Australian law

inclusion of ATSI law and perspectives
- circle sentencing
- koori court


circle sentencing

- community leaders and magistrate decide on punishment
- creates lower rates of reoffending
- shame
- full understanding of crimes
- chance for rehabilitation sentence


why was circle sentencing created

- ATSI offenders are more likely to re-offend if they are sentenced in front of a judge
- symbolism of judge on a higher place and oppression of ATSI people


koori court

- branch of the children's court
- program that allows open discussion with the offender, magistrate, elders, and others to decide on a reduced sentence through rehabilitation
- aims to help young offenders not re-offend with cultural support
- discusses underlying causes of criminal behavior