Aboriginal customary law has gradually been considered in the application of Australian criminal laws, particularly in sentencing. Customary law – or, the body of rules, practices and customs that have been traditionally recognised by the Aboriginal community as being binding upon them – has been increasingly recognised in sentencing as a tool in peace building and restoring harmony and good order to Aboriginal communities.
Judges have, however, have consistently claimed that they neither condone nor sanction the deliberate infliction of harm that is sometimes part of customary ‘payback’. ‘Payback’ covers a wide range of methods of punishing breaches of customary law, including shaming, spearing and/or restitution to the victim. Payback is not an act of revenge, rather it is a method of cleansing or atonement and a way of restoring relationships within Aboriginal communities. Judges have also had to navigate issues in the admissibility of evidence of customary law practices, and the status of experts on the customary laws of a particular Aboriginal community.
More fundamentally, the recognition of Aboriginal customary laws poses a conceptual and practical challenge to their relationship with white laws. Judges have been extremely cautious about creating a distinct system of norms or standards to be applied specifically to Aboriginal conduct. While the recognition of customary law in sentencing has sometimes given Aboriginal people more control or involvement in the sentencing process, they have also become bound up in the white legal process. The result has been a kind of weak legal pluralism in operation; an informal recognition of customary law as an alternative legal authority under scrutiny by the white legal authority.
Justice Kriewaldt grappled with the above issues in a number of cases before him during his time on the bench; indeed, he was one of the first judges to address customary law, and acknowledge it as a factor in sentencing.
‘it is my duty to impose a more severe sentence than I normally impose for death resulting from fights between natives. The accused has by now sufficient knowledge of white law to know that he was acting illegally. His reputation amongst his fellow aboriginals and white community deprives him of any right to ask for leniency.’
Kriewaldt J in Jangala (1956)
‘…I tell you as a matter of law that it is procuring, counselling and commanding, if the two accused selected Charlie to do the crime. It is equally procuring, counselling and commanding if they did not select Charlie as the person to do the murder but instead said to the younger men: ‘One of you, or one selected by you, must kill Selly.’
Kriewaldt J in Tiger and Captain (1953)