A Special Customary Law Defence?

442. Forms of Direct Recognition. So far the discussion in this Chapter has concerned the problem of taking into account Aboriginal customary laws in deciding on criminal responsibility under the general law. This is only an indirect way of taking customary law into account. If Aboriginal customary laws are to be directly recognized in determining criminal liability under the general law, two different questions must be faced:

  • the establishment of some form of defence based on customary laws, which would exclude criminal liability under the general law where the defendant’s acts were determined and justified by customary law or which would at least reduce the extent of the defendant’s culpability; and

  • the incorporation of customary law offences in some form in the general criminal law, so as to establish criminal liability on the ground of breach of customary law.

The first question will be discussed here, the second in Chapter 19.

443. Terminological Issues. It is necessary to clarify some issues of terminology. A defence based upon Aboriginal customary laws would be ‘special’ in the sense that it would apply only in cases where Aboriginal customary laws were applicable and were followed.[139] It might also apply only in the case of specific offences, rather than generally to all or most offences. But in another sense such a defence would be ‘total’ or general, in that it would entirely absolve a defendant from criminal liability. An alternative would be a ‘partial defence’, reducing the level of liability in specific cases (eg murder to manslaughter). These two alternatives will be called, respectively, a ‘customary law defence’ and a ‘partial customary law defence’, and will be dealt with in turn.

444. The Impact of a Customary’ Law Defence. In many respects a customary law defence would be the clearest a, well as the most direct way of linking criminal responsibility under the general law with Aboriginal customary law. As Brady and Morice comment:

The true dilemma of Aboriginal versus Australian Law lies in the situation whereby an action which may conform to Aboriginal Law comes to be adjudicated upon by Australian law as an illegitimate act.[140]

For example, where one Aborigine inflicts what is sometimes referred to as ‘traditional punishment’ on another in response to some ‘offence’ or wrongdoing under customary laws, only a customary law defence would, in most cases at least, prevent the conviction of the first Aborigine (for assault or even homicide) for an act which he may have regarded as justified, or even required.[141] At the level of the substantive law, only a customary law defence would deal directly or completely with the dilemma to which Brady and Morice refer. It would not prevent such cases from coming before the courts, but it would enable the defendant to avoid conviction provided he showed that his conduct was justified under his customary laws.[142] Other forms of recognition are indirect and therefore may not cover all the cases that can arise. To the extent that they rely on exercises of discretion they are, it can be argued, inherently unreliable.

445. Proposals for a Customary Law Defence. There has been only limited consideration given to a customary law defence in Australia or elsewhere. The extent to which customary law is taken into account in the substantive criminal law in comparable overseas countries is very limited.[143] The Commission is not aware of any country which has accepted a general customary law defence in the criminal law. However the following examples or proposals are relevant:

  • The Laverton Royal Commission in its Report adopted as one of its recommendations:

Amendment to the relevant criminal statutes to make it a defence where a court is satisfied that an Aboriginal acting bona fide and in compliance with his tribal law contravenes a provision of a criminal statute, pending information being obtained on Aboriginal law and until a decision is made whether to incorporate part of that law into statutory law.[144]

  • The Preliminary Report of the South Australian Aboriginal Customary Law Committee recommended that further consideration be given to a customary law defence. The Committee suggested:

That in certain circumstances there be a defence of Customary Law. The question of whether, in such circumstances, it should be a complete defence, qualified defence or a factor in mitigation of penalty needs to be the subject of further detailed consideration by the Committee.[145]

  • By-law 17 of the By-laws of the Bidayadanga Aboriginal Community La Grange Incorporated, made pursuant to the Aboriginal Communities Act 1979 (WA), provides that:

It is a defence to a complaint of an offence against these By-laws to show that the defendant was acting under and excused by any custom of the Community.[146]

Four other Aboriginal communities incorporated under the Western Australian Act have by-laws in the same or similar form. Given the limited extent of the bylaws the circumstances in which By-law 17 could be relied on are also limited. However, the customary law defence in By-law 17 could be relied on, for example, where a defendant had entered upon community land (By-law 4), had engaged in fighting thereby causing a disturbance (By-law 11), or had interrupted a community or customary meeting by noise or any other disorderly behaviour (By-law 12).

  • The Community Services (Aborigines) Act 1984 (Qld) provides in section 43 that an Aboriginal court shall exercise its jurisdiction having regard to ‘the usages and customs of the community within its area’. The way in which this provision will work in practice is unclear; but experience with the courts so far suggests that it is unlikely to have much effect.[147]

  • A number of statutory provisions recognizing or establishing particular rights to Aboriginal land incorporate Aboriginal customary laws so as to create, in effect, a customary law defence to offences against those provisions. For example section 69 and 70 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) make it an offence under certain circumstances to enter upon sacred sites or Aboriginal land. In both cases, no offence is committed if the entry is ‘in accordance with Aboriginal tradition’.[148] This seems entirely appropriate given that the Act creates or recognises rights to land deriving from Aboriginal tradition.

  • The Papua New Guinea Law Reform Commission has proposed a general customary law defence, which was discussed in para 408. The following features of that proposal may be recalled:

· the defence would completely exonerate a defendant in the case of certain offences, excluding homicide, serious assault and regulatory offences

· a partial defence (with a maximum of 3 years imprisonment) would apply to diminished responsibility killings and related serious assaults: these acts, even though fully justified by the relevant customary law, would remain offences against the general law;

· the defence would have no application to payback or revenge killings or assaults, to which the ordinary law would continue to apply;

· the defence would only apply to persons ‘living in similar circumstances or ... subject to similar social, employment or other experience’ as the members of the customary social group in question (and to which the defendant must belong).

No action has yet been taken to implement these recommendations.

446. A Customary Law Defence to Specified Offences. There is a clear distinction between a customary law defence applicable generally to offences of whatever kind, and a customary law defence to specific offences which are themselves a form of recognition of Aboriginal customary laws or of Aboriginal community authority. Examples of the latter include By-law 17 of the Bidayanga Community By-laws, or s 69(2) or 71(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).[149] A customary law defence in such cases may be entirely appropriate. If it is sought to recognise land rights based on traditional Aboriginal occupation, it may also be appropriate to allow other persons to use the land provided their use is in accordance with or consistent with those traditions. The situation with respect to a customary law defence of a general kind, which would justify or excuse what would otherwise be a breach of the ordinary criminal law’, raises different, and much more difficult questions. For example, would such a defence apply in cases of homicide?

447. Exoneration under a Customary Law Defence in Cases of Homicide. The question of tribal killing or execution was referred to in Chapter 10.[150] The Commission’s conclusion was that such killings (and related life-threatening assaults) cannot be justified, let alone authorised. It follows that a customary law defence should not be available in such cases. To provide such a defence would involve the general law in specifically endorsing or licensing customary law’ actions such as payback killings. The Commission has already concluded that this ought not to occur. Sufficient account could be taken of the customary law aspects of such cases through a partial defence (reducing murder to manslaughter) and in sentencing.[151]

448. Arguments for a Customary Law Defence in Other Cases. The question of a complete defence was however raised’ in a few submissions to the Commission, in the context of the ‘lesser offences’ covered by the Papua New Guinea Law Reform Commission’s proposals. Much of the discussion has related to ‘spearing’ and similar responses (ie to ‘traditional punishment[152]) but in the form proposed by the Papua New Guinea Law Reform Commission the defence would also apply to charges such as

  • non-aggravated assault;

  • rape not involving the infliction of serious bodily harm:

  • entry to land; and

  • abduction not involving the infliction of serious bodily harm.

It has not been expressly argued before the Commission that a customary law defence of such breadth should be introduced. However the more limited argument, that such a defence should apply in cases of ‘traditional punishments’ such as spearing, has been made:

It is submitted ... that since there is considerable evidence that spearing continues to be used either as a threat or in reality as a means of resolving disputes then provision ought to be made for such continuation by creating customary law defences by amendment to the relative federal and State statutes. Alternatively, it is open to those administering justice to ignore the existence of customary acts amounting to breaches of the criminal law by ‘looking the other way’. In the view of the writer, such an approach would be, at most, a dishonest one, and at least, one with which the Crown ought to have no association. Essentially, this submission amounts to one in which it is urged that legislation be passed to create the defence of customary law in appropriate cases ...[153]

Such a defence would, it can be argued, be both the most honest and the most direct way of taking Aboriginal customary laws into account in criminal cases, and of acknowledging the conflict of obligations that can occur. It would also help to ensure consistency in the application of the general law. A major defect of existing informal procedures of recognition (eg non-prosecution) is the danger that they can be applied arbitrarily or selectively. or varied by executive or police decision without notice. A formal defence would help to avoid these dangers.

449. Arguments Against a Customary Law Defence. There are, however, a number of difficulties in the way of a customary law defence of this kind:

  • Few cases in practice: The defence would only apply in cases where the violation of the general law was specifically legitimised by customary law. In practice, such cases rarely come before a court. It is even rarer for defendants to be actually penalised in cases where a customary law defence would apply.[154] If the present system (with perhaps some modification or reinforcement) can deal adequately with these cases, it can be argued that a controversial and complex amendment, the effects of which in practice would be uncertain, should be avoided.

  • Translating customary, law into a defence: The notion of a ‘defence’ does not fit very well with the operation of an informal customary law system. Payback or punishment can itself lead to further acts of payback or punishment, if the former are excessive or if the other side wishes to prolong the matter. Traditional ways of resolving disputes are finely balanced mechanisms for the resolution of conflict through threats or demonstrations of limited violence. While for more serious offences actual violence may occur, argument and discussion (often heated and angry) are used to settle disputes. Discussions may go on at intervals for weeks or even longer. Traditional methods of resolving disputes seek — not always successfully — to maintain social cohesion within the community. It is unlikely that a strictly formulated defence would come close to corresponding with or ‘fitting’ this reality. Procedural mechanisms may be a more appropriate way of dealing with such cases, as a number of submissions have pointed out.[155]

  • Reducing protection to victims: A customary law defence might also have the effect of depriving persons — including Aboriginal victims of assaults — of legal protection.[156] The ‘equal protection’ implications of a customary law defence were referred to in Chapters 9 and 17.[157] A customary law defence which absolved a defendant from liability entirely would affect the level of legal protection afforded to victims and thus run counter to notions of equal protection.

  • Exposure of Aboriginal traditions: Another problem is that a customary law defence would tend to require a searching analysis, definition and testing of the relevant customary laws by the courts. Putting customary laws under the microscope in this manner risks several negative consequences. It detracts from the continuing flexibility of customary laws and from Aboriginal control over their laws and traditions. Aborigines have commented on the risks and dangers involved in revealing aspects of Aboriginal law or tradition in the courts.[158] A less searching or intrusive examination is necessary at the sentencing or procedural levels.

450. The Commission’s Conclusion. The Commission concludes that a general customary law defence[159] is not desirable even in cases falling short of homicide, and that the problem of the conflicts between the two laws in serious cases of this kind is better dealt with in other ways. This is consistent with Eggleston’s view:

Even though it might be unjust to individual Aborigines to punish them for killings, especially in the early days of contact, the conviction may be justifiable ... The harshness and injustice can be modified by imposing lenient sentences. Today, when considerable modification of tribal custom has already occurred, it seems a retrograde step in most cases to make tribal law an absolute defence to a charge of murder, though it should mitigate punishment and could possibly be made the basis for reducing the charge to manslaughter.[160]

[139]The use of the term ‘defence’ does not necessarily carry any implication for onus and standard of proof.

[140]M Brady & R Morice, Aboriginal Adolescent Offending Behaviour. A Study of a Remote Community, Flinders University, Western Desert Project, 1982. cf JE Newton, ‘Aborigines and the Criminal Justice System’ in D Biles (ed) Crime and Justice in Australia, Australian Institute of Criminology, Canberra, 1977, 134, 144: ‘Clearly it is unjust to subject to criminal punishment in white courts an Aboriginal defendant who is ignorant of white law and who acts in accordance with the requirements of his own customary law’. As expressed, this argument is based upon ignorance of law rather than preference for Aboriginal customary laws.

[141]For examples of such cases see para 402, 430. For the inapplicability of consent as a defence to assault see para 502-3. For the difficulty of equating `traditional punishments’ with punishments under the general law see para 484-6, 513.

[142]Other requirements might also have to be demonstrated to establish the defence. See eg the PNGLRC’s proposal (para 408), and cf para 453.

[143]See para 404-12.

[144]Report of Laverton Royal Commission (Royal Commissioners: GD Clarkson, CF Bridge, EF Johnston) Perth, 1976, 212, adopting the recommendations of the Laverton Joint Study Group as accepted by the Aboriginal Affairs Co-ordinating Committee: id, 261.

[145]South Australia, Aboriginal Customary Law Committee (Chairman: Judge J Lewis) Preliminary Report, Adelaide, 1979, 56-7.

[146]By-laws dated 19 October 1979, approved by the Governor in Council, 7 February 1980. See para 747-758 for description of 1979 Act and its operation.

[147]There was no equivalent provision in the now repealed Aborigines Act 1971 (Qld) although reg 20 made pursuant to that Act provided that the Council was charged with the ‘good rule and government’ of the reserve ‘in accordance with Aboriginal customs and practices and shall have the power to make By-laws for such good rule and government and to cause all By-laws lawfully made by it to be observed and enforced’. Aboriginal courts on reserves were given responsibility for enforcing the by-laws but none of these, with the exception of a prohibition on sorcery (ch 24.1), could be said to be based on Aboriginal customs or traditions. For discussion of the Aboriginal Courts see para 723-746.

[148]Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 69(2), 71(1) (but subject to s 72(2)). See para 200.

[149]See para 445.

[150]See para 179-80, 184, 192.

[151]See further para 516-522. But C McDonald argued for an unlimited customary law defence: Submission 398 (20 February 1984).

[152]cf para 444, 505-7.

[153]Judge J Lewis, Submission 271 (5 May 1981) 6. The writer continued:

Creation of the Defence of customary law to offences against the law of Australia and South Australia, will inevitably give rise to arguments by many that to have such defences is to engage in legal pluralism or to create a repugnancy of laws, or that there is a sovereign state created in by the Pitjantjatjara areas. It seems to me that these arguments are unilateral and that the arguments can only serve to bring about the state of affairs which will be profound in its accelerating the disappearance of the Pitjantjatjara Culture and that the conclusions as a basis for discussion in DP 17 do not come to terms with the real problems where a group of people are steadfast in their resolve to continue to use spearing and physical punishment as a means of resolving disputes. (id, 8.)

The question of a customary law defence in some form was raised in a number of other submissions. Thus HA Wallwork suggested that there should be:

a statutory right to take the Aboriginal law into account when deciding the guilt or punishment of the Aboriginal person. A body of case law would then grow up which could be referred to by subsequent courts for guidance.

Submission 35 (22 July 1977) 1. In the opinion of the Tasmanian Aboriginal Centre:

The only real basis for not allowing duress as a defence (whether full or qualified) [in cases of the influence of customary law beliefs] can only be the expressed wishes of the Aboriginal community in question.

Submission 237 (10 April 1981) 11. T Pauling SM expressed the view that ‘the Papua New Guinea recommendation (or a customary law defence) should be adopted for the one or two cases that might arise Territory-wide each year’: Submission 140 (9 November 1979) 4. MW Daunton-Fear & A Freiberg do not expressly argue for a customary law defence, although they do state that ‘modifications should be made to those rules of substantive law which seer to impose on [traditional Aborigines] characteristically European concepts’, a reference, apparently, to ethnocentric judgments based on ‘reasonableness’ rather than to a general customary defence: see ‘“Gum-tree” Justice: Aborigines and the Courts’, in D Chappell & P Wilson (ed) The Australian Criminal Justice System, 2nd edn, Law Book Co, Sydney, 1977, 45, 78-80, 96, 99. On the other hand, a number of submissions argued for procedural rather than substantive reform to take into account these conflicts of rules: see para 471, 485-88, 543.

[154]cf R v Claude, Raymond and Andy Mamarika (unreported, NT Supreme Court (Nader J) 17-19 August 1982); R v Charlie Gimbiari Jagamara (unreported, NT Supreme Court (Muirhead J) 28 May 1984). See also para 497-8.

[155]See para 471.

[156]In practice women are often the victims of domestic violence which has, or is said to have, customary aspects. See para 394, 399, 497-8.

[157]See para 162, 165, 401, 411.

[158]P Dodson, ALRC, Notes of ACL Regional Consultants Meeting (Melbourne, 24 November 1983) 8; ACL Field Report 8, 20.

[159]As distinct from a defence to specified offences which are themselves a form of recognition of local customary laws or community authority: see para 446.

[160]Eggleston, 300.