21. Aboriginal Customary Laws and Sentencing
Aboriginal Customary Laws and the Notion of ‘Punishment’
499. Aboriginal Customary Laws: Offences and Responses. It is difficult to give an account of the range of ‘offences’, and of responses to them, under Aboriginal customary laws. The subject is only dealt with incidentally or indirectly in the literature. Difficulties arise from the variations in customs and practices throughout Australia, and from the differing degrees to which communities have responded to outside influences. They also arise from the perceptions which many non-Aboriginal Australians have about law and punishment, with which traditional Aborigines may disagree. For example, it is commonly assumed that punishment is a response to wrongful acts, that it is a response closely regulated by rules, and that it is activated by some form of collective decision, ie, by a person or body authorized to act in the name of the general community. But in small, ‘acephalous’ communities these assumptions are unlikely to apply. In such communities, ‘punishment’ may be a response to acts which were not perceived so much as ‘unlawful’, as requiring a response from the affected party or group (and the ‘punishment’ may itself provoke a further response). The response may not be specifically laid down or stipulated, but may be chosen from a range of alternatives as a result of a process of argument, mediation or agreement; and it may follow not from any collective decision but from the (authorized or expected) reactions of the parties concerned in or injured by the original act. In short, punishment may be one of a range of possible outcomes of a process of dispute-settlement, with little resemblance to the impartial, and impersonal, application of defined sanctions in accordance with general rules, which is the model assumed by Anglo-Australian law. This point was forcefully made by Dr von Sturmer:
I am struck by the extent to which western cultural blinkers are imposing a certain view on the nature of law and order in Aboriginal settlements ... Discussing Aboriginal customary law in the context of the general criminal law deflects attention right aw ay from the notion of how disputes arise in Aboriginal societies, the issues and interests which underly them, and the ways in which they are resolved.
But it does not follow that traditional Aboriginal punishments and dispute-resolving machinery generally are not the product of something properly called ‘law’, or that they should be ignored or discounted because they do not reflect a particular conception of the administration of justice.
500. Traditional Punishments or Responses. Aboriginal traditional punishments can take a wide variety of forms, depending on factors such as the locality, the sex, status and previous history of the wrongdoer, the sex, status and conduct of the victim and of the person(s) required or expected to respond, the community’s perceptions of the seriousness of the offence and the surrounding circumstances, and the extent of (and concern about) external intervention. Traditionally they might have included:
spearing (of greater or less severity) or other forms of corporal punishment (eg, burning the hair from the wrongdoer’s body)
individual ‘duelling’ with spears, boomerangs or fighting sticks
shaming or public ridicule
more rigorous forms of initiation or teaching
certain arrangements for compensation (eg through adoption or marriage)
Some of these punishments are harsh and may be thought repugnant, although it should be said that they occurred within communities with few other means of disciplining their members (such as community work, fines or gaol), in which there were well-established means of moderating conflict or deterring excessive violence, and in which the ability to withstand pain and hardship was both a necessity and an acknowledged virtue.
501. Modifications to Aboriginal Punishments. As a result, in part, of outside influences, including disapproval of many of these punishments by police and missions, and also changing economic and social conditions (so that the function or purpose of some forms of punishment has changed or disappeared), a number of traditional Aboriginal punishments (eg traditional killings) are either not practiced at all or are practiced only covertly. Such punishments were not defended, or regarded as appropriate for recognition by the general law, in submissions or evidence to the Commission. There has been some tendency to develop or modify punishments of lesser degree, which are thought more ‘acceptable’. Such punishments may include:
However some Aboriginal communities continue to practice, and strongly defend their right to practice, certain punishments, such as thigh spearing, forms of corporal punishment and initiation or putting young offenders ‘through the law’.
502. The Legality of Traditional Punishment Under the General Law. Where a particular way of settling disputes is lawful under the general law, it appears that a court may, at least with the defendant’s consent, incorporate it in its sentencing order (eg as a condition attached to a bond). It is sometimes suggested that certain forms of punishments (such as spearing) may be legal under the general law if consented to by the ‘victim’, since the existence of consent negatives an assault (or any more serious offence based upon the notion of assault). At common law, the extent to which consent may justify an assault (ie render it lawful) remains unclear. It has never been the law that the victim’s consent excuses homicide. Generally speaking, the definition of ‘assault’ and cognate offences includes the absence of consent on the part of the victim. A person may consent to what would otherwise be an assault: in some contexts, to quite serious forms of assault (including contact sports such as ice-hockey, football and boxing). Even the deliberate infliction of ‘injury’ with the victim’s consent may not constitute an assault if some social purpose is thereby fulfilled (eg cosmetic and other surgery, some contact sports). On the other hand, the courts do not accept consent as a defence in other contexts, where a breach of the peace is involved, where ‘a spirit of anger or a hostile spirit’ is shown, or where they can see no ‘redeeming social purpose’ in the act. The distinction between these cases and those where consent may be effective remains obscure and uncertain, and the courts retain a considerable degree of flexibility. The English Court of Appeal has summarized the position in the following way:
It is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public: it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.
503. Consent to Traditional Punishments. If this view is accepted by the Australian courts, then virtually no case of consensual traditional punishment involving wounding or beating (except corporal punishment imposed by a parent or a person in loco parentis) will be lawful at common law. It is not clear whether the Australian common law goes as far in the direction of discounting consent as the English Court of Appeal has done. But (with the exception of surgical procedures) consent will not justify the deliberate infliction of grievous bodily harm, or of any permanent or serious injury. This was the view taken by Justice Nader in what is apparently in the only Australian case involving traditional punishment where consent has been expressly raised as a defence. It is difficult to avoid the conclusion that the common law has shown a measure of ethnocentricity in accepting the validity of consent to quite extreme forms of deliberate physical violence in some sports, while (probably) rejecting consent to the infliction of force in the course of indigenous traditional punishments. But the problem is not to be resolved by the application or reform of the law relating to consensual assaults. In some cases, the extent of traditional punishment is likely to go beyond anything that could be justified on the basis of the victim’s consent. On the other hand consent is clearly relevant, in relation to bail, in sentencing, and in prosecution policy. The Commission has been informed of the policy of the South Australian police in relation to ‘spearing’ as a form of tribal punishment:
In fact there have been few, if any, prosecutions of a traditionally oriented Aborigine for inflicting a punishment such as spearing which did not lead to the death of or serious injury to the victim, and this is true not only of South Australia but elsewhere. The inference is that the process leading to such punishment is substantially a voluntary one, and that complaints to the police in such cases are not made or pursued. As was pointed out by the Commonwealth Department of Aboriginal Affairs:
Traditional sanctions — spearing and other assaults — are still widely accepted in, for example, communities in Central Australia, and the use of these sanctions often does not result in charges being laid. In effect, the communities and the police give some de facto recognition to certain aspects of customary law. Those inflicting ‘traditional punishments’ generally know that they risk charges under Australian law but they and their communities have a reasonable expectation that only serious woundings are likely to result in court proceedings.