The Effectiveness of the Law in Achieving Justice for Indigenous People
In relation to Australia, the term ‘Indigenous peoples’ refers to two
distinct cultures of people who inhabited the land prior to European
settlement – The Aboriginals and the Torres Strait Islanders. This
population declined dramatically over the 19th and early 20th century
due to the introduction of new diseases from European settlement,
Government policies of dispersal and dispossession, the era of
protection, assimilation and integration causing a cultural disruption
and disintegration of the Indigenous peoples. In the 20th century the
recognition and protection of Indigenous peoples land rights and human
rights have been at the forefront of Global Issues where the
International community has sought to address the issues and ratify
Human Rights and Land Rights for Indigenous People as a legitimate
subject to be implemented into international law and the domestic law
of member states such as Australia. To evaluate the effectiveness of
the law in achieving justice for Indigenous Australians we must look
at the Australian Legal System, and the extent to which it addresses
it’s obligations to International Law in relation to Australia’s
In evaluating the Legal System’s response to Indigenous People and
it’s achieving of justice, an outline of the history of Indigenous
Australians - before and during settlement - as well as their status
in Australian society today must be made. The dispossession of their
land and culture has deprived Indigenous People of economic revenue
that the land would have provided if not colonised, as well as their
... middle of paper ...
...Australians by not clarifying it’s stance on it’s
international obligations to Indigenous Australians or reflecting it’s
international rhetoric and signature on UN conventions by implementing
some in domestic law. This inadequacy in the development of Indigenous
Peoples Land Rights in Australia has been declared by the Working
Group on Indigenous Populations in July 1997, and highlights the
Australian government policy regarding Indigenous Peoples Land Rights
and may be argued as a denial of justice for Indigenous People by the
Australian legal system. Australia can be said to be ineffective in
achieving justice for Indigenous People due to it’s failure to
recognise Indigenous Australians rights to land domestically by
failing the Human Rights standards contained in international
initiatives to which it is a signatory.
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It would not be inconsistent with the principle of equality before the law that, where members of the Aboriginal race have special needs, those should be recognised by special rules laid down by the law. Further, the law is flexible enough to allow the courts to consider the special situation of an Aboriginal party where that is relevant. As the courts have recognised, the sentencing of Aboriginal offenders presents particular difficulties. Judges, in an attempt to do justice in discharging the difficult role of sentencing tribal and semi-tribal Aboriginal persons, have gone further. Clearly the ordinary criminal law is capable of facing these difficulties. It is neither necessary, nor desirable, to apply to the Aboriginal peoples the rules of their customary law rather than the general law. The attempt to uphold Aboriginal customary law is one aspect of the notion that the Aboriginal peoples will benefit if they continue to be treated as a class separate from the rest of the community, which must necessarily be a dependent and disadvantaged class.
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