441. The Need for Legislation? There is, as this Chapter has demonstrated, a reasonable degree of scope for taking into account Aboriginal customary laws through the application of existing defences. The criminal law attempts to reflect measures of subjective guilt or criminality in its assessment of criminal responsibility and to a considerable extent it is now able to do this in cases with customary law elements. Difficulties experienced by traditionally oriented Aborigines may help demonstrate the need for the introduction or reform of a defence (such as diminished responsibility) as it applies generally. However, it is important that Aboriginal customary laws and traditions be taken into account in assessing criminal responsibility, for example through notions such as ‘reasonableness’, and it is within the Commission’s Terms of Reference to recommend that this be done. The question is whether legislation is necessary or desirable to reinforce this requirement. In the area of the criminal law, the constraints upon special legislation are considerable: on the other hand, so too are the problems. So far as provocation is concerned, the courts have been responding to the particular situations of Aboriginal defendants (and other defendants from different cultural backgrounds) in the ways already described. The case for legislation specifically on provocation is not, therefore, particularly strong. On the other hand, uncertainties remain, and it is not clear whether a similar approach as to provocation will be adopted in the context of other defences. A legislative provision would reinforce the present law and help ensure that it is applied fairly and consistently. Accordingly, legislation should provide that Aboriginal customary laws and traditions should be able to be taken into account, so far as they are relevant, in determining whether the defendant had a particular intent or state of mind, and in determining the reasonableness of any act, omission, or belief of the defendant. If Aboriginal customary laws are to be taken into account in assessing the reasonableness of acts or excuses, it will be necessary to allow evidence of them to be adduced, so that traditional concepts of reasonableness may be explained to and understood by the jury. It may be that such evidence would now be admissible. But the matter is not clear, and the Commission therefore recommends legislation to clarify this point. Evidence to prove these questions should be admissible, a result which would be achieved by the general provisions proposed in this Report for the proof of Aboriginal customary laws.
The question whether legislation implementing the Commission’s recommendations should be Federal, or State or Territory legislation is a separate one, which is discussed in Chapter 38 of this Report.
See para 168-9, 394-400, 411.
cf Eggleston (1976) 295. In ALRC DP 20 (1984) para 11-12, the Commission tentatively recommended legislation to provide that Aboriginal customary law and traditions should be taken into account in determining liability under the general criminal law, in particular in determining whether the defendant had the necessary intent and whether his acts were ‘reasonable’ for the purposes of any general defence. The Commission received submissions both for and against this proposal. Those against included National Police Working Party, Submission 459 (4 October 1984); those in favour included AJ Murray, Submission 455 (28 May 1984); G James QC, Submission 418 (21 May 1984); Justice Kearney Submission 411, (1 May 1984); C McDonald, Submission 398 (20 February 1984). See also ALRC, Notes of ACL Regional Consultants Meeting, (Melbourne, 24 November 1983).
See para 641-2.