The colonial courts and Aboriginal law

'In the past, the courts have dealt with the existence and exercise of Aboriginal law in many different ways. In the context of criminal law, for example, early decisions considered the clash of legal systems in the new colony. One court accepted that Aboriginal peoples should not be bound by laws which were not their laws, that they did not comprehend and that had given them little or no protection.'

Another court, at a similar time, took a different view, that the law of the colony was the supreme law and could be the only law operating in the territory of the colonies. (R v Murrell (1836) 1 Legge Rep 72) It was this latter view which prevailed. (See R v Wedge [1976] 1 NSWLR 581)

The courts have attempted to keep Aboriginal law outside of the legal system by making its impact, if taken into consideration at all, a matter of fact which may be taken into account. For example, in criminal law, the operation of Aboriginal law may be taken into account in determining sentences but not in relation to guilt or innocence. (See for example, R v Ferguson (unreported decision, Western Australian SC Burt J, 8 April 1970); Jacky Anzac Jadjurin v R (1982) 44 ALR 424)

Keywords: aboriginal law, Common Law, Jacky Anzac Jadjurin v R (1982), R v Ferguson (1970), R v Murrell (1836)

(R v Bon Jon (unreported decision, Supreme Court of New South Wales, Willis J, Port Phillip Gazette, 18 September 1841)).
Author: Strelein, Lisa