In 1788, British law overrode Aboriginal customary law in Australia. Although only Australian Law (of a Common Law legal system) is officially recognised nowadays, customary punishments have been adopted in several cases.
Australian Law and Customary Law are very different. The statement - "Law is based on individual and community beliefs and values. These concepts are true for Australian Law and for Customary Law" - suggests that differences between the legal systems arise from the different beliefs and values held by the two societies.
In Australian Law, punishment is a response to an unlawful act. Punishment includes taking away liberty and/or taking away property. Punishment is issued by a court based on the offender's criminal history, and sometimes age and sex.
However, in Customary Law, the punishment is based on the sex, status and history of both offender and victim. Punishments are based on the effects on the victim rather than on the actual wrongdoing.
Thus, punishments are applied as retribution. Punishments in customary law include restitution, verbal and physical abuse, magic, exclusion, banishment and death.
Both legal systems use punishments that underline the way the community and individuals perceive punishment and offences. Customary Law punishments involve the use of corporal and capital punishment because Aborigines do not perceive physical force or death as being wrong for punishment. However, in the Australian legal system, such punishment is not used because of individual and community values. The different punishments also reflect what is important to individuals. In Australian Law, taking away property is a punishment because contemporary Australians value ownership. In customary law, exclusion and banishment were applied for serious offences because of strong kinship beliefs. The use of different punishments in Australian and Customary Law shows that both systems are based on individual and community beliefs and values.
In Australia, wealth and economic success are measured through ownership. Ownership is consequently valued and so the population is preoccupied with their ownership rights. Therefore, Australian Law protects ownership and punishes theft, for example with the Land Sales Act 1984 (Qld and NSW Crimes Act 1900. These laws reflect individual and community beliefs and values of ownership.
The concept of individual ownership of materials or land in Aboriginal Customary Law did/does not exist. Instead 'group custody' existed to preserve the land for the spirits. Thus, laws regarding ownership of land were uncommon. Individual property was also collectively shared and borrowing was a kinship right so theft was rare. This was why laws regarding ownership were not as complex and many in customary law as in Australia law.
The suitability of Australian Law and Customary Law with individual and community beliefs and values, in regards to punishment and ownership, helps to ensure efficiency. If people do not abide with the law because their beliefs and values are different from those reflected by the law for example on ownership, the law would not be effective in fulfilling its functions. If the punishment does not take away things of value, crime will soar as no one will fear punishment.
In conclusion, the concept that law is based on individual and community beliefs and values is true for both Australian Law and Customary law and this concept helps to make both systems effective.
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