The Recognition of Aboriginal Customary Laws in Sentencing

498. Issues for Consideration. In discussing whether and to what extent Aboriginal customary laws should be recognised in sentencing, this Chapter necessarily deals with several more specific issues. These are:

  • the characteristics of what the courts term ‘traditional punishments’, and in particular their legality or otherwise (para 499-503);

  • the extent to which Aboriginal customary laws should be taken into account in sentencing, whether in reducing or increasing the severity of sentences (para 504-51 1);

  • whether a distinction can be maintained between taking Aboriginal customary laws into account in sentencing, and incorporating aspects of Aboriginal customary laws in sentencing orders. and to what extent such ‘incorporation’ (eg of traditional punishment, of ceremonies or of traditional supervisory authority) is desirable or workable (para 512-515);

  • whether the conclusions arrived at on these questions should be reinforced by legislation (para 516-517);

  • whether a special sentencing discretion to take Aboriginal customary laws into account is desirable in cases where there is no general sentencing discretion under the relevant law (para 518-522).

Thereafter this Chapter considers several related or subsidiary questions, specifically:

  • whether ancillary evidentiary provisions are desirable to assist courts in making informed decisions in these cases (para 523-531);

  • the relevance of the broader range of sentencing questions referred to in para 490, including alternative sentencing options in cases involving Aborigines (para 532-541).