17. Aboriginal Customary laws and the Criminal Justice System

It is, no doubt, a question of high legislative policy whether tribal aboriginals, who are unable to understand the concepts of the ordinary law, ought to be tried under that law.

Ngatayi v R (1980) 30 ALR 27, 34 (Gibbs, Mason, Wilson JJ)

The existence of two systems of law side by side, the prevailing one and aboriginal customary law, with their very different attitudes to guilt and responsibility, creates serious problems and the question of how far our laws should apply to aboriginals and how far their law should be allowed to apply to them is controversial.

id, 36-7 (Murphy J)

393. The Commission’s Terms of Reference. The Terms of Reference refer to the ‘difficulties that have at times emerged in the application of the existing criminal justice system to members of the Aboriginal race’ and require the Commission to investigate, among other things:

(a) whether, and in what manner, existing courts dealing with criminal charges against Aborigines should be empowered to apply Aboriginal customary law and practices in the trial and punishment of Aborigines; and

(b) to what extent Aboriginal communities should have the power to apply their customary law and practices in the punishment and rehabilitation of Aborigines.

Although the Reference is not restricted to the recognition of Aboriginal customary laws in the criminal law, a particular concern of the Reference is the difficulties often experienced by Aborigines dealt with by the Australian criminal justice system (and, equally, by the criminal justice system in dealing with those Aborigines). These questions are considered in this part of the Report. In this chapter it is proposed to set out the basic factual and comparative background, and to outline the various is sues which arise in considering the recognition of Aboriginal customary laws in the trial and sentencing of Aborigines. Chapter 18 will consider the problems arising with the substantive criminal law in its application to Aboriginal defendants, including the question whether a new defence should be recognised based on Aboriginal customary laws. Chapter 19 discusses the converse question, whether Aboriginal customary laws should themselves be imported into the general legal system in some way, so as to be a basis for criminal liability and punishment under the general law. Chapter 20 discusses procedural as distinct from substantive forms of recognition of Aboriginal customary laws in this area. Finally, Chapter 21 discusses in more detail questions of the sentencing of Aborigines convicted of offences, and in particular the application of ‘customary law and practices’ in their punishment and rehabilitation.[1]

[1]Issues of evidence and procedure affecting Aborigines in their contact with the criminal justice system are dealt with in Part V of this Report.

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