The Construct of Indigenous Australian 'Traditional Laws and Customs' in Contemporary Australian Law: A Conceptual Analysis

Abstract

Indigenous Australians describe their traditional law as complex experiential, grounded and relational systems founded on rich philosophical and spiritual heritage. And yet for two hundred years, the sovereignty of the Anglo-Australian legal system was premised upon the notion that Indigenous Australian peoples were without law at all. Now, since the landmark 1992 decision of the High Court of Australia in Mabo v Queensland (No 2) (1992) 175 CLR 1 ('Mabo'), the continuing existence of Indigenous Australian 'traditional laws and customs' is explicitly acknowledged in contemporary Australian law. This thesis is about the ideas of 'law' that enabled the existence of Indigenous Australian law to be denied and subsequently recognised. It is about the ways that Indigenous Australian law has been conceptualised in British and Anglo-Australian legal thought. This research asks how Indigenous Australian law is conceived in the Anglo-Australian legal doctrine that recognises its existence. I trace two hundred years of British and Anglo-Australian legal theory to understand how Indigenous Australian law was historically portrayed relative to the concept of 'law'. I investigate the theoretical underpinnings of the contemporary legal doctrine of recognition as disclosed by the leading judgment in the High Court decision of Members of the Yorta Yorta Community v Victoria (2002) 214 CLR 422 ('Yorta Yorta'), the most significant decision concerning the recognition of Indigenous Australian law since Mabo. I thus interrogate the jurisprudence that lies at the heart of Anglo-Australian sovereignty, and problematise the Anglo-Western concept of 'law' itself. In this thesis, I demonstrate that the theoretical foundations of the current 'recognition' of Indigenous law are virtually identical to those of 'terra nullius'. The theories relied upon by the High Court in Yorta Yorta not only contain a similar civilised-primitive dualism to those of terra nullius, but explicitly use negative perceptions of Indigenous Australia as the epitome of people without law. I conclude that the very definition of Indigenous Australian 'traditional laws and customs' in contemporary Australian law is based upon a denial of its status as 'law'. Further, since these negative perceptions of Indigenous Australia have been deliberately used to determine the conceptual parameters of 'law', I conclude that the modernist Anglo-Western concept of law itself depends upon the denial of law to Indigenous Australia. Show more