The Commission’s View

516. Endorsement of Basic Principles Elaborated by Courts. The Commission endorses the principles articulated in para 505-515, which have been worked out by Australian courts in cases involving traditional Aborigines, and which are set out in summary form in para 542. These principles, in the Commission’s view, strike the right balance between what are, to some extent, conflicting requirements. On the one hand, for the reasons already given, the courts cannot incorporate or require traditional punishments or other customary law processes to occur as a condition to the release of offenders or of the mitigation of punishment. On the other hand, there would be no point in acknowledging the right of traditionally oriented Aborigines ‘to retain their racial identity and traditional life-style’ if no allowance were to be made for traditional forms of dispute-settlement. These do now exist in fact, and are now taken account of by police, prosecuting authorities and courts in a variety of ways. As has already been demonstrated, the law’s continuing disapproval of some traditional punishments does not mean that these cannot be taken into account. Especially where the Aborigines concerned accept such punishments as an aspect of their traditional life-style, it is appropriate that account be taken of them in ways such as:

  • non-prosecution

  • sentencing

  • procedural decisions such as on bail applications.

This view, though with differences in emphasis, was widely supported in submissions[193] to the Commission, and is generally accepted by judges and writers.[194] The converse view that Aboriginal customary laws should be rejected as a relevant factor in sentencing was supported by no-one.

517. Legislative Support for the Exercise of Existing Sentencing Discretions. The question is then whether these principles should be officially endorsed in some way as appropriate, and if so, at what level of specificity. If official endorsement is desirable, the only way this can be done is through legislation. It is not open to the executive government to instruct or guide judges in the exercise of their independent powers, including their sentencing powers.[195] Virtually all offences involving Aboriginal customary laws are offences against State or Northern Territory law, in relation to which the Commonwealth has, at present, neither standing to appear in court nor prosecutorial responsibility.[196] These considerations would appear to favour legislative guidance being given. In addition, this is a difficult and controversial area, one in which the judges might fairly expect guidance from Parliament if the conclusions expressed in the preceding paragraph, arrived at after lengthy inquiry, were to prove acceptable to Parliament. A danger in such legislative Guidance is that it may be regarded as fettering essential judicial discretions.[197] A provision which required a judge to take Aboriginal customary laws into account in sentencing might be thought to create difficulties if in a particular case the judge decided that this was not appropriate. On the other hand such a provision would only require that a judge consider the relevance of Aboriginal customary laws in cases where, on the evidence, these have been an element in the offence. It would not require a judge automatically to give a lesser sentence, but it would be a direction from the legislature that Aboriginal customary laws are an element to be taken into account in sentencing. For these reasons the Commission concludes that at least a general endorsement of the practice of taking Aboriginal customary laws into account is appropriate. It is not necessary to spell out in terms the various propositions discussed in para 505-515, but it should be provided in legislation that, where a person who is or was at a relevant time a member of an Aboriginal community is convicted of an offence, the matters that the court shall have regard to in determining the sentence to be imposed on the person in respect of the offence include, so far as they are relevant, the customary laws of that Aboriginal community, and the customary laws of any other Aboriginal community of which some other person involved in the offence (including a victim of the offence) was a member at a relevant time. It should also be provided that, in determining whether to grant bail and in setting the conditions for bail, account shall be taken of the customary laws of any Aboriginal community to which the accused, or a victim of the offence, belonged.[198] The recommended formulation makes no specific reference to the need to take account of the views or opinions of the defendant’s or the victim’s community, although it was suggested in para 510 that these may well be relevant. So far as the defendant’s community’s views are concerned, the matter is sufficiently dealt with by the reference to local customary laws, by the existing practice of taking these matters into account and by the procedural provision recommended in para 531. This applies also to the views of the victim’s community (where this is a different community). At present the courts rarely take into account the views of the victim, or members of the victim’s family, as to the appropriate sentence.[199] But the fact that the accused has made restitution in some way to the victim or his or her family is undoubtedly relevant. For this reason, as well as in the interests of balance, evidence or submissions of the attitude of the victim or the victim’s community towards the offence and its aftermath ought not to be excluded. But, for the reasons given, no substantive provision requiring these opinions to be taken into account is necessary.[200]