Aboriginal Embassy Victoria: March 2010

'In 1836 the Supreme Court of New South Wales held that it had jurisdiction to deal with Mr
Murrell, an Aborigine, who was charged with the murder of another Aborigine. Counsel for
the accused, put the following argument to the Court:" nt2

"This country was not originally desert, or peopled from the mother country, having had a
population far more numerous than those that have since arrived from the mother
country. Neither can it be called a conquered country, as Great Britain was never at war
with the natives, not a ceded country either; it, in fact, comes within neither of these, but
was a country having a population which had manners and customs of their own,
and we have come to reside among them; therefore in point of strictness and analogy to
our law, we are bound to obey their laws, not they to obey ours. This argument was rejected. Australian law has rejected the idea of continuing Aboriginal sovereign rights to make laws after 1788" nt2.

"While Australian law recognises that Aboriginal legal systems existed, and traditional law
continues to exist, at the moment, it only recognises an Aboriginal legal system for the purpose of establishing native title rights with respect to land" nt2

"When common law lawyers and judges, have looked for law in Aboriginal societies, there has been a tendency to treat law as divinely inspired revelations and not rules deriving their content and form from social needs; to treat law as religious rules, and not as dispute resolution mechanisms. Many would query the appropriateness of such a classification. However, it is one that has appealed to the High Court." nt2

Aboriginal (law) Lore contained rules for their society to adhere to, if any member violated the rules he or she would be punished as required under the Lore, no-one was above the Lore, as the lore was enshrined in religious and spiritual understanding of the beginning of time.

Today 2010 Due to the Howard Government's Intervention program, in isolated aboriginal nations, this being the first time many adult's in these communities have seen "whitefella" as the English language is only, third language, and Australian Law's are not widely known, or practiced, These groups maintain traditional (law) lore, spiritual religious practice.

In these communities people live their lives under traditional law, and many disputes are resolved in accordance with the Aboriginal legal system. For such people there is only one legal system and it is Aboriginal.

"In the British tradition, sovereignty used to reside with the King or Queen as God's
representative on earth, or at least in England. Thus the power of the King or Queen - also
called the sovereign – was originally absolute. The sovereign could do whatever he or she
wanted, and it was the law that whatever he or she did could never be wrong" nt2.

"Over time this changed. Beginning with Magna Carta in 1215 it was recognised that
parliament also had some sovereign rights, that the making of future laws required the approval of parliament and that ordinary people had legal rights that the sovereign could not take away, without parliament's approval" nt2

"Following this tradition, in Australia we now say that sovereignty resides with parliament, and the people elect the members of the various Australian parliaments. However we also sometimes say that sovereignty resides with the Crown, by which we mean the Governor or
Governor-General acting on the advice of his or her Ministers. Thus the Governor-General or
a Minister signs extradition treaties, parliament does not approve them. Because the Australian Constitution limits or regulates the powers of the Governor-General and of all Australian parliaments and courts, it is often seen as a document embodying conceptions of sovereignty, as a fundamental or supreme law" nt2.

"Generally speaking, the Commonwealth and States are recognised as sovereignty entities. The notion of sovereignty residing in the Crown or parliament permits the recognition of equal or lesser rights of sovereignty in Aboriginal communities. However, it has not been the
constitutional history of Australia to recognise Aboriginal communities as possessing sovereign rights." nt2

There is still some debate as when the British sovereignty and laws applied to this land, some members of the legal profession claim since

1788 as the "Privy Council had held that uninhabited lands settled by English subjects would be governed by the laws of England. "where the lands are claimed by right of occupancy only, by finding them desert and uncultivated… all the English laws then in being, which are the
birthright of every subject, are immediately there in force."nt2

1828 as "reception of English law was clarified by the Australian Courts Act 1828, which provided that all laws and statutes in force in England at the date of the enactment"nt2.

1875 when The Pacific Islanders Protection Act 1875 came in to beings, s. 6. Power for Her Majesty to exercise jurisdiction over British subjects in islands of the pacific ocean. to erect a court of justice for British subjects in the islands of the pacific. to make ordinances.

"The most important law of Australia is the Constitution of Australia, which describes Australia's system of constitutional monarchy, and forms the basis for the government of Australia. All of the States and territories of Australia that are self-governing are separate jurisdictions, and have their own system of courts and parliaments. The systems of laws in each State are influential on each other, but not binding. Laws passed by the Parliament of Australia apply to the whole of Australia"nt2.

However. The Australian Constitution did not give the Commonwealth Parliament power to make laws for peace order and good government for the Aboriginal race till after (Con Job) referendum in 1967

"1994 In Walker v New South Wales. Mason CJ ruled that the notion of sovereignty meant that all Australian parliaments could pass laws that applied to Aboriginal people, whether or not the Aboriginal people consented to those laws. Australians parliaments had "legislative competence to regulate or affect the rights of Aboriginal people" In a later case it was also held that customary Aboriginal Law was not recognised by the common law of New South Wales. Quoted. The Murrell's case (1836) has been taken as settling the matter that Australian courts have jurisdiction over Aboriginal people regardless of whether Aboriginal laws are relevant to the offence." nt2

2010 In the Crown v McDonald, the accused challenged the Courts jurisdiction, based on the that Victorian Government did not have the legislated power to make laws for peace, order. and good government for the Aboriginal people of Victoria, subsequently the Courts had no jurisdiction, that the current laws had created an unnecessary burden on the people. and submitted that cultivation of cannabis under Aboriginal lore is not illegal. His Honour Judge D. Allen and the Crown relied what Sir Harry Gibbs said in the Coe v The Commonwealth and what was said by Sir Anthony Mason in Walker v New South Wales.

The accused made an interlocutory appeal against His Honors ruling, which was heard at the Supreme Court appeal on the 11th March 2010 Before Judges Ashley, Neave and Redlich, all agreed that the learned Judge, rightly concluded the points raised lacked any legal merit.

"Now There is only one legal system in Australia, and only one "law" and that is Australian law. Under the Australian legal system there are two types or sources of law: laws made by parliament (legislation) and laws made the courts (common law). Aboriginal law can only be recognised if Australian law says"nt2

Traditional (Aboriginal nations) had two legal system, as to maintain a harmonious and peaceful society, being, Law for women, Law for men. as they were both different and would need different Laws. Under one Lore.

"In the case of conquered or ceded lands, the general rule was that the laws of the country continued until those laws were altered by the British parliament, or the Crown under its prerogative powers."nt2 The lore has continued unbroken unchanged since recorded time

There is only two ways that the lore of this land can be extinguished, by the Commonwealth of Australia Parliament saying so, or by the Aboriginal people letting it slowly fade away. For a society with out Lore- Sovereignty does not exist.

"It is sometimes said that an Aboriginal person can only be truly said to be bound by traditional law if he or she is living a wholly "traditional" lifestyle, that is, no electricity, no fridge and no gun for hunting. This point of view fails to recognise the right of Aboriginal people to determine how they will exercise their right to life. It is also contrary to the way the High Court looks at native title rights and interests" nt2.

"A person does not cease to exercise a traditional right by exercising the traditional right in a contemporary way. Accordingly, traditional laws may still operate in Aboriginal communities that have electricity and other material manifestations of contemporary life." (nt2)

nt2 acknowledgment Northern Territory Law Reform Committee: Background Paper 2

Considering you have read this far, I ask , Should Aboriginal Lore System be recognised and considered by the Court system of Australia?... your opinion appreciated ....I thank you

Les McDonald
Chief Lore Officer
Aboriginal Embassy Victoria (aboriginalembassyvic@yahoo.com.au)

Aboriginal Embassy Victoria

Wednesday, March 24, 2010

about Lore-about time

Saturday, March 13, 2010

Lieutenant Governor request

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