"qwertyuiopasdfghjklzxcvbnmqwertyui opasdfghjklzxcvbnmqwertyuiopasdfgh jklzxcvbnmqwertyuiopasdfghjklzxcvb nmqwertyuiopasdfghjklzxcvbnmqwer Justice Administrationtyuiopasdfghjklzxcvbnmqwertyuiopas Identification and Application of Legal Frameworkdfghjklzxcvbnmqwertyuiopasdfghjklzx 10/04/2012cvbnmqwertyuiopasdfghjklzxcvbnmq wertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghj klzxcvbnmqwertyuiopasdfghjklzxcvbn mqwertyuiopasdfghjklzxcvbnmqwerty uiopasdfghjklzxcvbnmqwertyuiopasdf ghjklzxcvbnmqwertyuiopasdfghjklzxc vbnmqwertyuiopasdfghjklzxcvbnmrty uiopasdfghjklzxcvbnmqwertyuiopasdf ghjklzxcvbnmqwertyuiopasdfghjklzxc vbnmqwertyuiopasdfghjklzxcvbnmqwContents1. Key features of the Indigenous justice systems operating in Australia ............................32. Difference between the features of Indigenous and General Justice System ...................43. Positive and Negative aspects to official recognition of Indigenous justice law in thejustice system .............................................................................................................................5a) Positive Aspects ..............................................................................................................5b) Negative Aspects .............................................................................................................64. Do you agree with current approach of the courts in recognizing Indigenous law incriminal sentencing of offenders? .............................................................................................65. Your preferred kind of judicial officer and justice system, if you were the defendant ...7 1. Key features of the Indigenous justice systems operating inAustraliaa) Elderly family members both male and female act as the judiciary.b) The defender and offender are directly involved in the dispute resolutionmechanism under the Indigenous justice system.c) The verdict passed under Indigenous justice system is a result of a decision takenby mutual agreement of the entire community. d) Creation of a cohesive system under which offenders are punished in the presenceof their community. This could be done on purpose tomaintain order, make theoffenders feel alienated and reduce the acts of crime in the society.e) Indigenous justice system is primarily an arbitrary mechanism used to resolvedisputes.f) Indigenous justice system does not differentiate between civil law and criminallaw in a way that general justice system does. Under the Indigenous justicesystem the distinction is given as Public wrongs (Breaches of sacred law, incest,sacrilege) and Private wrongs (Homicide, wounding and adultery).g) The methodology of dispute resolution differs in both Public and Private Wrongs.In case of Public wrongs, senior people in the community make the decisionwhereas in case of Private wrongs the offender and offender’s kin is involved. h) Under Indigenous justice system the proximate cause is considered as the idealrule of thumb to pass the verdict. For instance, if the servant stumbles in theowners garden, due to recklessly placed grass cutting machine in the garden. Theowner of the house will be liable to pay the penalty/face punishment. i) One of the significant features of the Aboriginal justice system is that it works onthe fundamental principle about maintenance of law and re-establishing thecondition of the injured party to the position before the injury occurred due to theoffender.2. Difference between the features of Indigenous and General JusticeSystemFeatures of Indigenous Justice Features of General JusticeSr.No.System SystemFamily members are not involved.Active involvement of family membersThe decision is made by the legalof the injured person and offender in the1 judiciary that is said to be neutral dueprocess of reaching a judgment againstto no kinship with the offender andthe offender. defendantTwo legal systems recognized by the General Justice system classifies two2 Indigenous Justice system are a) Public legal systems 1) Criminal law and 2)Wrong and b) Private Wrong. Civil lawThe main objective of General JusticeThe main objective on which theSystem is to make a fair judgment3 Indigenous Justice system functions iswhich may be even against theindemnifying the injured party.defendant at times. Giving a fair and judicious verdict onCause-Effect relationship is more the basis of available evidence,4 important under Indigenous justice similar cases and their trial results insystem than any other factor.the past and the legislation is themost important factor.Features of Indigenous Justice Features of General JusticeSr.No.System SystemThe methodology of disputeresolution is the same under GeneralThe methodology of dispute resolutionjustice system, which is a fair trial. A5 differs in the two legal systems a) Publicfamily court could be used as theWrong and b) Private Wrong.venue for the trial in some civil caseswhich are about family problems.General Justice system is primarily aIndigenous Justice system is primarily an fair trial system which involves thearbitrary system where indemnification Judge, the Jury, and the defendants6of the injured person is the expected and offenders lawyer. All of them areresult. unrelated to the defendant andoffender.3. Positive and Negative aspects to official recognition of Indigenousjustice law in the justice systema) Positive Aspects? Family involvement in mutual agreement to a judgment makes the processmore rational.? The simple classification of the Indigenous legal system as Public Wrongand Private Wrong can be better understood by a lay person. Thus it iseasier to follow the law by being aware about it. ? Being an arbitrary system which is more about arriving at a compromisesolution it is more appealing to all the parties namely the defendantoffender and their families.b) Negative Aspects? The system works on the cause-effect relationship meaning the reason forthe injury of the injured person and its impact on the injured person. Thisis not very fair considering the reason for injury cannot be solely based onone factor. ? Some of the punishments under Indigenous legal system could be veryharsh such as throwing a spear to hurt the offender’s thigh and humiliatingthe offender amidst the community/family members. The consequence ofthese harsh punishments may not really resolve the damage.? Due to family involvement in the Indigenous legal system to reach aconsensus about the offender, personal bias could result into a wrongjudgment.4. Do you agree with current approach of the courts in recognizingIndigenous law in criminal sentencing of offenders?No, I do not agree with current approach of the courts in recognizing Indigenous law incriminal sentencing of offenders. My reasons:? Firstly, I do not think that it makes legal sense to punish the accused for thesecond time when the accused is already punished once under the Indigenous lawsystem. ? Secondly, passing a judgment and punishing the accused under the Indigenouslaw does not seem right. If at all it makes legal sense to punish the offender forthe second time, a fair trial under civil/criminal law of the general justice systemshould be considered.5. Your preferred kind of judicial officer and justice system, if youwere the defendantMy preferred kind of judicial officer and justice system, if I were the defendantwould be a defendant lawyer and the General Justice system.My reasons: ? The General Justice system is based on facts and only facts which are analyzed,researched and re-analyzed when similar criminal activities from the past takeplace in the contemporary scenario.? A thorough research is conducted to understand the exact situation of the offenderand the victim. The case is seen from all possible points of view and it is stronglybelieved that there is a motive behind the crime.? Neither the offender not the victim is seen with a view of sympathy/personal biasby both the criminal and victim lawyers.This is because under the general justicesystem the lawyers only consider concrete evidence to act for/against thecriminal/victim.? Contrary to the above mentioned scenario, firstly under the indigenous legalsystem with a complete involvement of the victim’s family to reach a consensuson whether or not the accused is guilty does not seem to be a fair way of dealingwith the case.? In addition to this, the indigenous legal system works similar to an arbitrarysystem where the objective is conflict resolution. It makes more legal sense towork on a fair and judicious judgment rather than resolving the conflict on asuperficial level. The decisions taken under the indigenous legal system could bemore favorable to the community as a whole and may not be fair to the victim andoffender individually.References1. Australian Law Reform Commission (ALRC), ‘Traditional Aboriginal Society and ItsLaw’ in Edwards WH (ed), Traditional Aboriginal Society (Melbourne: MacMillan, 2nded., 1998) 217.2. Debelle B, ‘Aboriginal Customary Law and the Common Law’ in Johnston E, Hinton M& Rigney D (eds), Indigenous Australians and the Law (Sydney: Cavendish, 1997) 81– 82.3. Berndt RM & Berndt CH, The World of the First Australians: Aboriginal traditional lifepast and present (Canberra: Aboriginal Studies Press, 4th ed.,1988) 336.4. Debelle B, ‘Aboriginal Customary Law and the Common Law’ in Johnston E, Hinton M& Rigney D (eds), Indigenous Australians and the Law (Sydney: Cavendish, 1997) 82;ALRC, ‘Traditional Aboriginal Society and Its Law’ in Edwards WH (ed), TraditionalAboriginal Society (Melbourne: MacMillan, 2nd ed., 1998) 217.5. Toohey J, Understanding Aboriginal Law (1999) 32 in Toohey J, Aboriginal CustomaryLaws Reference – An Overview, Law Reform Commission of Western Australia(LRCWA), Project No 94, Background Paper No 5 (September 2004).6.Maddock K, ‘Aboriginal Customary Law’ in Hanks P & Keon-Cohen B (eds),Aborigines and the Law (Sydney: Allen and Unwin, 1984) 219. "