A LANDMARK event will take place this month as indigenous lawyers and law students get together in an effort to better understand and analyse the use of customary law in modern day Australia.
At the inaugural gathering, lawyers and students will meet at the National Indigenous Legal Conference in Sydney.
“There has never been a gathering like this,” conference coordinator Tony McAvoy said. “It will be an unprecedented opportunity to advance the understanding of complex issues which arise under the central theme of customary law.”
These complicated issues involve the use of customary law in terms of sentencing discretion, as well as the use of customary defences in criminal matters, McAvoy said.
Although there is support from some quarters of the legal community for the use of customary law, “at this point it seems that we need to get some better understanding of the use of customary law in the application of sentencing discretion,” he said.
The issue of customary law is topical given the recent ‘child bride’ case in the Northern Territory, in which matters of customary law were considered at first instance, only for the sentence to be increased on appeal, McAvoy said.
But “not because the Northern Territory Court of Appeal has rejected the proposition that matters of customary law should be taken into account in the sentencing process. That did not stop the press and certain politicians from claiming that the NT Court of Appeal had rejected the use of customary law”.
“At the same time you have the federal Minister for Indigenous Affairs making public statements that he would be introducing laws that abolish the power for judges to take into account customary law in the sentencing discretion,” he said.
“The court would still have to determine how it assesses whether the application of customary law is appropriate. It’s not just a circumstance where every Aboriginal person who commits a crime should be entitled to raise the fact that they are Aboriginal as a basis for a decreased sentence. It would be a misstatement of customary law to try and apply it in that way.”
The conference, to be held on 22 to 23 September, is open to any interested parties to attend.
“We are hoping that it will be well supported by those in the legal profession who have an interest in indigenous law and the interface with Australian law,” he said.
The opening address will be given by the Hon Sir Gerard Brennan AC KBE, patron of the Indigenous Barristers Trust (The Mum Shirl Fund). Tom Calma, ATSI Social Justice Commissioner and Acting Race Discrimination Commissioner will give the keynote address on the integration of Aboriginal customary law in the Australian legal system. Dr Larissa Behrendt will discuss customary law and governance structures.
McAvoy has practised as a barrister in Sydney since 2000. Five other practising indigenous barristers will also participate in the program, along with indigenous solicitors from New South Wales, Queensland, Victoria, Western Australia and the Northern Territory. There will also be a review of the various ‘hybrid’ legal systems that operate around the nation in the form of circle sentencing and Murri and Koori courts.
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