471. A Range of Alternatives. The most important way in which recognition has so far been extended to Aboriginal customary laws in the criminal law (apart from sentencing discretions) has been informally through the exercise of administrative or procedural powers. These have included:

  • non-prosecution for certain offences (eg in cases regarded as strictly ‘traditional’ or ‘tribal’[1]);

  • prosecution for a lesser offence (eg to allow the matter to be dealt with locally by the Magistrate rather than in a distant centre by the Supreme Court or District Court on indictment,[2] or for other reasons);

  • the entering of a nolle prosequi by the Crown;

  • decisions by a court to discharge absolutely or not to record a conviction (although these powers may only be available to lower courts).

The existence of such practices was noted by Eggleston,[3] and they continue to be applied. It has been suggested that they provide a better way of recognising or accommodating Aboriginal customary laws in criminal cases than would changes in the substantive criminal law:

The Commission should concentrate on the adaption of procedure to Aboriginal realities.[4]

My first point is fundamental. I do not believe that, whatever problem is identified and defined in connection with customary law, it will be solved by effecting changes exclusively to the substantive criminal law of the State. Some such changes there may have to be, but they are likely to be consequential or subsidiary. Any solution will probably be more effective if tribal customary law is treated rather as local custom was in England in times past. It seems to me that the greatest advantage is to be gained by reforming and enlarging the practices and procedures governing the administrative discretions of law enforcement agencies. It is vital that whatever powers are given to these agencies should be exercisable promptly by persons who are kept well-informed, and who are well able to make binding decisions without the sort of debilitating reviews that are so often introduced.[5]

In this Chapter it is proposed to describe the various procedural or administrative discretions available and the ways in which these might be employed, reinforced or revised to recognise Aboriginal customary laws. It will also consider other procedures which could be introduced to divert certain cases away from the criminal justice system. In considering these issues, a distinction may be drawn between non-prosecution, because a particular matter has already been resolved, or because the defendant’s subjective culpability (given the involvement of local customary laws) was such that a minimal, or no, penalty is likely to be imposed by the court, and diversion, involving the use of procedural powers in effect to transfer a case from the ordinary courts to some official or unofficial local mechanism for resolving the dispute in question. To some extent this distinction relates to the point in the process at which a decision is to be made: diversion is likely to arise as an issue at an earlier stage, before local dispute resolution processes have been applied. But the question whether to prosecute may also arise in a case where no such local processes will operate. For example the act which is the subject of the charge may be regarded by all concerned as legitimate under local customary laws, and no local response may be expected. However, such a distinction can be difficult to draw in particular cases,[6] and the discussion of procedural alternatives in this Chapter accordingly overlaps with, and is preliminary to, the discussion of local justice mechanisms and other forms of local dispute resolution in Part VI of this Report.

[1]For many years this was the prevailing policy in the Northern Territory following a direction of the Minister of the Interior:

I desire to inform you that natives should not be charged in respect of tribal offences unless after consultation with the Chief Protector or his representative. Letter from JA Carrodus, Secretary, Department of the Interior to The Administrator of the Northern Territory, 16 November 1936 (Australian Archives CRS FI Item No 36/592). See para 39-45, 58 for the earlier history of these policies.

[2] See para 473 n 13 for the practice in the North-West of South Australia.

[3]E Eggleston, Fear Favour or Affection, ANU Press, Canberra, 1976, 287-8.

[4]Fr MJ Wilson MSC, Submission 111 (14 March 1981) 5. This was also the view of MC Kriewaldt, ‘The Application of the Criminal Law to the Aborigines of the Northern Territory of Australia’ (1960) 5 UWAL Rev 1, 15-21, 25-9.

[5]Justice WAN Wells, Submission 17 (28 March 1977) 2-3.

[6]See para 402.