The Law and the Lore

The laws

The Aboriginal peoples of Australia had a complex system of law long before the establishment of British law in Australia, their system of law is often referred to as “traditional law”, and on this web site it is also referred to as "the lore", however “rules of law and norms of politically appropriate behaviour were probably not distinguished” (Meggitt, 1962).
There were no formal courts under traditional law, instead problems regarding traditional law were handled by elders - the oldest people in the community.

Effects

Elders are important people in Aboriginal communities - they have important roles in how the community works and how the community relates with those outside the community, including government departments and service providers.
Elders are respected in the community.
Some elders are the traditional owners of the land.
Some elders are ‘acknowledged elders’.

 

 

 
Implications for service providers

All staff working with Aboriginal clients need to have understanding that many Aboriginal people live under two legal systems - the British-based Australian legal system and a ‘Traditional’ lore system. These impact on different aspects of their lives.

The following practical tips and suggestions are a starting point for exploring the implications. It may be useful to have dialogue with the local Aboriginal community about these issues.

1. When reading through this website and other cultural awareness reference material you may notice two different terms ‘law’ and ‘lore’ being used to describe ‘Traditional Law’.

The term ‘law’ is a British concept that was first introduced to the Aboriginal peoples
during the colonization period, whereby they were expected to abide by this new
justice system.

The term ‘lore’ refers to the customs and stories the Aboriginal peoples learned from
the Dreamtime. Aboriginal lore was passed on through the generations through songs,
stories and dance and it governed all aspects of traditional life.

It is common to see the terms ‘law’ and ‘lore’ being used interchangeably. As a worker it is useful to remember that there is a distinction, although law is more commonly used. For the purpose of this website we will use the term ‘lore’.

2. Service providers need to develop an understanding that Aboriginal and Torres Strait Islander peoples held a well developed system of law long before the first white people arrived in Australia. Known as ‘Traditional Lore’, it is still in place today, and differs significantly from the British based Australian legal system.

Traditional lore is connected to ‘The Dreaming’ and provides rules on how to interact with the land, kinship and community. Aboriginal children learned the law from childhood, by observing customs, ceremonies and song cycles.

3. Many Aboriginal people live under two legal systems, the British-based Australian legal system and a ‘Traditional’ lore system, which may impact on different aspects of their lives.

There are Aboriginal communities in remote parts of Australia where the traditional culture is the dominant way of life. Unfortunately ‘Traditional’ Aboriginal lore practices may not work properly for these communities because they largely conflict with the Australian legal system. For example the Australian legal system punishes the offender by imprisonment and isolation from their community. In Traditional lore, matters are often discussed between the offenders’ family and victim to decide the severity of the punishment and who will carry it out. The process is swift and the community can return to normal.

There has recently been a lot of media attention regarding the debate of Aboriginal Traditional lore versus the Australian legal system. As a Human Service provider you may be confronted with wider community views on this subject. It is important to recognize that Traditional lore is an integral part of Aboriginal culture. This will enable you to question the misconceptions you may confront within your community.

It will also help you to develop a better understanding of some of the difficulties that Aboriginal and Torres Strait Islander people experience when their cultural practices are not preserved.

4. The 2002 Census data shows an over-representation of Aboriginal people within the criminal justice system. This is consistent with previous Census data. The Royal Commission on Deaths in Custody is one of the most significant analysis of Indigenous law and justice issues. It examines the underlying causes of the over-representation of Aboriginal people in the criminal justice system. It may be useful for Workers in the Human Services sector to scan the Report to extend their understanding of the difficulties Aboriginal people experience with a justice system that is so different to their own Traditional lore. The following website provides detailed information on the Report.

5. As a Worker you may find yourself supporting Aboriginal clients who are experiencing difficulties arising from the breakdown of their culture and the loss of appropriate customs, laws and cultural practices. As already emphasized in the website, Aboriginal lore provides rules on how to interact with the land, kinship and community.

As Aboriginal families and communities breakdown, through the ongoing trauma of the Stolen Generation, cultural practices are lost and a cycle of poverty and disadvantage may occur. Workers need to maintain strong networks with their local Indigenous community to support Aboriginal clients to make connections and learn about their culture.

6. As a Worker you may support Aboriginal clients whose cultural practices and values disadvantage them within the Australian legal system. This may be due to a language barrier or a different interpretation of a situation. For example, Aboriginal people may have difficulties based on their language and culture when communicating with the Police, both as a victim or an offender. There are specialist legal services available for Aboriginal people. It is important to maintain an up-to-date contact directory of the relevant specialist services available in your area.

Aboriginal and Torres Strait Islander Legal Services provide a comprehensive list of legal services provided by and/or targeted to Aboriginal and Torres Strait Islander people including;

Aboriginal and Torres Strait Islander people can get help from all Legal Aid offices or from Aboriginal Legal Services who provide free help;


7. As a Worker you may find yourself supporting an Aboriginal person who is a victim of a crime or has gone through an abusive experience such as domestic violence. It is important to be particularly sensitive when discussing this with the person. Many Aboriginal people are reluctant to talk about sensitive issues outside their family network.

The distrust of Government departments and the need for positive, trusting relationships is covered in detail in Practice Implication 1 History – Trust of Institutions. Although you can discuss your concerns about the situation and outline why it is an offense in the criminal justice system it is still important to consider the client’s perception of the situation and the influence of their culture. Referral to a specialist Aboriginal Legal service can be useful.

8. For Aboriginal and Torres Strait Islander peoples ‘Traditional Lore’ meant there were no courts of law with judges to preside over criminal offenses. Instead most problems were handled by Elders within the community.

Elders are respected members of the Aboriginal community on whom their community rely upon to give advice and pass on knowledge. The traditional meaning of an Aboriginal Elder is someone who has gained recognition within their community as a custodian of knowledge and lore and who has permission to disclose cultural knowledge and beliefs.

In some Aboriginal communities there may be individuals who are ‘recognized elders’. These are people who are respected by the Aboriginal community as elders but have not necessarily undergone traditional initiation ceremonies.

When working with the Aboriginal and Torres Strait Islander community, Service providers need to get to know the elders or ‘recognised elders’ and other key Indigenous contacts in Government and non-Government departments. It is important to take time in establishing credibility within the Aboriginal community by building trust and respect and demonstrating that you are there to get to know and assist their community. As a worker it is important to;

  • Know who the elders in your local Aboriginal community are;
  • Make connections with them ie invite them to carry out an Acknowledgment of Country at significant vents (see below);
  • Enable them to feel welcome and comfortable with your service.

9. When working within Aboriginal communities it is important to remember that community members are unlikely to contradict or question an elder and in fact not say what they think, this is in recognition of the elder or ‘recognized elder’. The community member may come to you later and put their view across, this needs to be handled sensitively and at times may not be resolved due to the view or advice of the elder or ‘recognized elder’.

10. An important part of showing respect for any different culture is to observe their cultural protocols and customs. One way of demonstrating respect for the customs and laws of your local Aboriginal community is to use Traditional welcomes and Acknowledging Traditional Owners.

• Traditional Welcome or Welcome to Country – This is a traditional welcome speech that is usually done by an Elder or senior representative of your local Aboriginal or Torres Strait Islander community. It welcomes people to visit and meet on the traditional area.

• Acknowledgment of Country – This is a welcome speech that is made in acknowledgment of the local Indigenous people of your area. It is done when an Elder or appropriate member of the Aboriginal community is not available to give a Traditional Welcome or during less formal gatherings. An example is provided;

“I would like to respectfully acknowledge the Local Aboriginal people who are the Traditional Owners and custodians of the land on which this meeting takes place.”

11. Ceremonies are a large part of the Aboriginal culture. They are a way of acting out The Dreaming and its lores and stories. Men and women have different roles in ceremonies and these roles differ between language groups. Aboriginal people across Australia conduct ceremonies for reasons similar to their ancestors- to trade, pass on information, sing and dance and re-kindle friendships.

There are ritual ceremonies that involve special sacred sites, song cycles accompanied by dance, and body painting. In recent years there have been some major indigenous festivals emerge, including Stompin’ Ground, Yeperenye Dreaming, Barunga Festival, Laura Festival, NARLA Knock Out, Survival, Coming of the Light, CROC Eisteddfod, NAIDOC and National Reconciliation Week. Talk to your local Aboriginal organisations about days of significance to them. Ask how you can support them by having these days recognized and acknowledged.

12. Aboriginal art is an important part of Aboriginal songs, stories, and customs. Aboriginal beliefs are based on creation stories of ‘The Dreaming’.

It is important to recognise that ‘sacred sites’ are an essential part of Aboriginal people’s beliefs. Most Aboriginal people believe that their ancestral spirits still guard these areas. They protect them and have the power to harm any person that disturbs, destroys or disrespects them.

It is not acceptable to visit some ‘sacred sites’. There are many sites that are not viewed as sacred and can be visited with the approval and guidance of your local Aboriginal community groups and the NSW National Parks and Wildlife (NPWS).

The NPWS conserves many significant rock art sites, working with local Aboriginal community groups. If you visit significant sites, please be careful not to touch or damage the sites and show respect for the sites and surrounding areas. The NPWS website provides useful information on Aboriginal people, their culture and significant area;