Aboriginal customary law is a term used loosely to refer to the traditional punishments and dispute-resolving processes used in Aboriginal communities. The criminal law in Australia is derived from the British legal system and contains many culturally specific assumptions about the nature of law and order that are at times ill-suited to the way disputes arise in Aboriginal societies. To what extent Aboriginal customary law should be incorporated, condoned or balanced with white law and how the two systems can best co-exist are complex questions which sometimes arise when an Aboriginal defendant is being dealt with by the white legal system.
Traditional punishments and responses
There are a wide variety of traditional punishments and responses to disputes that can apply depending on the location, sex, status and prior history of the wrongdoer, the status and behaviour of the victim and the community’s view of the offence as well as what external interventions have occurred.
Traditionally Aboriginal customary law has included:
- Spearing and other corporal punishment;
- Initiation or teaching;
- Exclusion from the community
Some of these traditional punishments are no longer practiced and some are practiced only covertly. Some forms of traditional punishment, such as spearing, are still practiced openly and are strongly defended by the communities that practice them.
Aboriginal customary law and the NT Intervention
Prior to the passage of the Northern Territory National Emergency Response Act (the Intervention), criminal courts in the NT could take into account tribal custom when sentencing an Aboriginal person for a criminal offence. However, Section 16AA of the Crimes Act 1914 (formerly section 91 of the Intervention) explicitly prohibits a sentencing court from taking into account cultural practice or traditional law when assessing the objective seriousness of criminal behaviour in the Northern Territory. This law was introduced in 2007 as part of the Intervention.
Prior to the intervention, courts recognised Aboriginal customary law and could depart from generally applicable sentencing law in consideration of cultural practices. For example, a defendant could be given a lenient sentence in consideration of the fact that an offence had been carried out in the context of administering tribal punishment. Conversely, a person’s sentence could be adjusted in consideration of the fact that they had already been subjected to traditional punishment or were likely to be traditionally punished.
Bail and payback
Prior to the Intervention, there had been a number of cases in the Northern Territory where bail had been granted in order for the defendant to return to their community to undergo payback. In other cases, bail was refused where the proposed payback risked being fatal.
In 2004, in the matter of Anthony, the Supreme Court granted bail on condition that the defendant not attend Lajamanu to undergo payback. The defendant in that case defied the conditions of his bail and did attend the community to receive payback. The practice of granting bail where a defendant was facing potential payback ceased after this decision.
Criticisms of the prohibition
The Law Council of Australia criticised the Intervention’s curtailment of courts’ ability to consider cultural factors upon sentencing, saying this was misconceived and would prevent courts from considering matters that are relevant. It further argued that prohibiting the consideration of cultural backgrounds would have the effect of advantaging persons from white Anglo-Saxon backgrounds, whose culture accords with mainstream values. Judges also criticised the provision for overturning many decades of case law.
Another criticism of the provision was that it appeared to be aimed primarily at Aboriginal defendants, despite containing no mention of the words ‘Aboriginal’ or ‘Indigenous.’ Some critics also claimed the provision compromised the separation of powers as it interfered with fundamental aspects of the sentencing process, it being impossible and undesirable to separate culture from the circumstances of criminal offending.
Lawyers and academics have pointed out that the failure by the mainstream legal system to recognise and respect Aboriginal customary law makes it almost inevitable that many Aboriginal people will neither recognise nor respect white law.
Justifications of the prohibition
The High Court has held that it is one of the functions of law to discourage victims and families from taking the law into their own hands, arguing that the prohibition on the consideration of Aboriginal customary law at sentencing is appropriate. Supporters of the law have also claimed that customary law practices that exist in Aboriginal communities now are a distorted version of tribal justice and can become an excuse for random violence. Where the recognition of customary law requires condoning the infliction of serious harm, it can risk undermining the integrity of the mainstream legal system.
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