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Customary Law, Sentencing and the Limits of the State

  • Heather Douglas (a1)

The issue of customary law punishment, especially “payback”, has stretched the limits of the criminal law in a range of sentencing judgements in Australia's Northern Territory. A number of judgments relating to customary law punishment are discussed in this essay. Successive Australian judicial decisions have stated that Aboriginal criminal law did not endure beyond British settlement. However, the jurisprudence of the Northern Territory does not quite reflect this position. The response of the judiciary in the Northern Territory to customary punishments has been to develop a kind of soft legal pluralism. Judges both take into account the proposed punishment, and yet do not formally condone it. The judiciary has attempted to maintain control over customary punishment while being beholden to Aboriginal communities for evidence of appropriate customary responses, and for the carrying out of the promised punishments. This leads to a complex situation where Aboriginal people are both supervised and supervisor, and the state is both in and out of control.

La question de la punition coutumière, particulièrement de la rétribution («payback»), a étiré les limites du droit pénal dans une série de décisions sentencielles dans le Territoire du Nord de l'Australie. Des arrêts australiens successifs ont établi que le droit pénal aborigène ne s'applique plus au-delà de l'établissement britannique. Cependant, la jurisprudence dans le Territoire du Nord ne reflète pas cette position. La réponse judiciaire aux punitions coutumières y fut de développer une sorte de pluralisme soft. Les juges y tiennent compte de la punition suggérée sans toutefois l'endosser formellement. Le système judiciaire tente de garder le contrôle sur la punition coutumière mais dépend des communautés aborigènes pour s'assurer tant d'une réponse coutumière adéquate que de l'exécution des punitions promises. Ceci crée une situation complexe dans laquelle les Aborigènes sont à la fois surveillés et surveillants, alors que l'État contrôle tout en ne contrôlant pas.

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1 For a definition of “payback” see Austl., Commonwealth, Northern Territory Law Reform Committee, Aboriginal Communities and Aboriginal Law in the Northern Territory: Background Paper 1 (Darwin: NTLRC, 2003) at 3132 [NTLRC 1], where payback is described as the penalty for causing the death of someone. The NTLRC notes that in the Northern Territory spearing in the thigh is a widespread “payback” penalty and it is not intended to cause death (ibid., at 32).

2 Walker v. New South Wales (1995), 69 A.L.J.R. 111 at 113 [Walker 1]. See also Yeo, Stanley, “Native Criminal Jurisdiction After Mabo” (1994) 6 C.I.C.J. 9.

3 Austl., Commonwealth, Royal Commission into Aboriginal Deaths in Custody, Too Much Sorry Business: The Report of the Aboriginal Issues Unit of the Northern Territory, vol. 5, app. D., by Langton, Marcia et al. (Canberra: Australian Government Publishing Service, 1991) at 308 [Langton, Report].

4 Substance abuse was allied to alcohol abuse and the other issue was family violence, see NTLRC 1, supra note 1 at 16. For a discussion of the relationship between alcohol and social devastation amongst Aboriginal people in Australia, see Langton, Report, ibid., at 275.

5 Lawless both in a white-law and Aboriginal-law sense. See Deborah Bird Rose, “Indigenous Customary Law and the Courts: Post-Modern Ethics and Legal Pluralism” Discussion Paper, (1996) (ANU: North Australian Research Unit, Canberra) at 21 [Bird Rose]; R. v. Hudson (16 August 1999), Northern Territory SCC9825802 (N.T.S.C.) at 51 (wrong-skin babies); Robertson v. Flood (1992), 111 F.L.R. 177 at para. 12 (early death) [Robertson]; R. v. Herbert (1983), 23 N.T.R. 22 at 29 (drifting into towns).

6 Langton, Marcia, “Rum, Seduction and Death: ‘Aboriginality’; and Alcohol” in Cowlishaw, Gillian & Morris, Barry, eds., Race Matters (Canberra: Aboriginal Studies Press, 1997) at 93 [Langton, Race Matters].

7 R. v. Juli (1990), 50 A.C.R. 31 [Juil]. This case has been referred to by Northern Territory judges as an authority on this issue, see R. v. Minor (1992), 79 N.T.R. 1 at 12 [Minor].

8 Juil, ibid., at 32.

9 Ibid. at 36, Malcolm C.J., referring to his previous judgment in Rogers v. Murray (1989), 44 A.C.R 301 at 305–08 [Rogers].

10 Alcohol consumption does not guarantee mitigation of sentence, see Alderson v. R. (30 September 2002), Northern Territory CA22/2001–20018453 (N.T.C.A.) Martin C.J., Mildren & Thomas JJ.; R. v. Wurramara (1999), 105 A.C.R. 512 at 522.

11 See for example Cook v. Chute (16 June 1997), Northern Territory 23/1997 (N.T.S.C); R. v. Clinch (1994), 72 A.C.R. 301; R. v. Berida (5 April 1990), Northern Territory 10/1990 (N.T.S.C), Angel J., at para. 24; Lalara v. Watkinson (8 November 2001), Northern Territory 2002/WL241351 (N.T.S.C), Martin C.J. at para. 7 [Lalara]; Munungurr v. R. (1994), 4 N.T.L.R. 63 at para. 7 [Munungurr].

12 Robertson, supra note 5.

13 Ibid. at para. 33.

14 R. v. Yougie (1987), 33 A.C.R. 301 at 304.

15 R. v. Long (13 February 1995), Northern Territory SCC9508033 (N.T.S.C), Martin C.J.

16 R. v. Fernando (1992), 76 A.C.R. 58 [Fernando], see the discussion of this case in Amagula v. White (7 January 1998) Northern Territory 61/1998 (N.T.S.C), Kearney J.

17 Fernando, ibid., at 62.

18 See Rogers, supra note 9 at 307, Malcolm C.J. This aspect of the judgement is discussed by Mildren J., in Minor, supra note 7 at 12. Compare with R. v. Welsh, (14 November 1997), New South Wales (N.S.W.S.C): “(…) much of the contact of Aboriginal people with the criminal law can be traced to their dispossession and the breakdown of their culture (…)” (ibid., at 6).

19 Fernando, supra note 16 at 63.

20 See also R. v. Friday (1985), 14 A.C.R. 471 at 472; the defendant was “(…) a victim of the circumstances in which her life had placed her.”

21 Lefebvre, Henri, Critique of Everyday Life Volume II: Foundations for a Sociology of the Everyday (London: Verso, 2002) at 3, 113.

22 Ibid. at 11; Langton, Report, supra note 3 at 308 where alcohol is described as part of the deliberate destruction of traditional culture and law. See also Lofgren, Neil, “Diminshed Life Expectancy as a Mitigating Factor in Sentencing” (1997) 4:3Ind. L. Bull. 21. Nicholsen suggests that Aboriginal communities are suffering from a form of post-traumatic stress syndrome, see Nicholson, John SC, “The Sentencing of Aboriginal Offenders” (1999) 23 Crim. L.J. 85 at 86.

23 Langton, Race Matters, supra note 6 at 93. Other Aboriginal leaders generally agree with Langton's assessment. See for example Mick Dodson, “Violence Dysfunction Aboriginality” (Address to the National Press Club, Canberra, June 2003) [unpublished]; Pearson, Noel, Our Right to Take Responsibility (Cairns: Cape York Partnerships, 2000).

24 See Ewald, Francois, “Norms, Discipline and the Law” (1990) 30 Representations 138 at 155.

25 See Sentencing Act (N.T.), s. 5(2) (f): “(…) the presence of any aggravating or mitigating factor” and “(…) any other relevant circumstance.”

26 Minor, supra note 7.

27 Ibid. at 11 where Mildren J., notes this evidence was taken into account.

28 Hales v. Jamilmira (2003), 142 N.T.R. 1.

29 Ibid., Martin C.J., Mildren & Riley JJ., at paras. 18–19. Jamilmira had pleaded guilty to statutory rape of a child under 15. The crown appealed against the sentence. An anthropologist's report had been presented at earlier hearing. The report found that the tradition of promised wives continued in Jamilmira's community and his carrying out of that tradition should operate to mitigate penalty. The report was referred to by all three judges at the Court of Appeal.

30 See Bird Rose, supra note 5 at 16.

31 See Joshua v. Thomson et al. (27 May 1994) Northern Territory 50/1994 (N.T.S.C.) at para. 39 [Joshua]. For further examples see R. v. Miyatatawuy (1996), 6 N.T.L.R. 44 at 49 [Miyatatuwuy]; R. v. Poulson (2001), 122 A.C.R. 388 at 392 [Poulson]; Minor, supra note 7 at 10, Mildren J.; Barnes v. R. (1997), 96 A.C.R. 593 at 597–98 [Barnes]; R. v. Walker (10 February 1994), Northern Territory 46/1994 (N.T.S.C), Martin C.J. [Walker 2]; Atkinson v. Walkely (1984), 27 N.T.R. 34 at 35; Munungurr, supra note 11 at para. 36.

32 See for example some of the cases heard by Kriewaldt J., in the Northern Territory in the 1950's, for example R. v. Muddarubba (1956), N.T.J. 317; R. v. Charlie (1953), N.T.J. 205.

33 Note a number of approaches have been put in place from time to time in the Northern Territory to facilitate this. See Austl., Commonwealth, Northern Territory Law Reform Committee, Legal Recognition of Aboriginal Customary Law: Background Paper 3 (Darwin: NTLRC, 2003) at 43 [NTLRC 2].

34 R. v. Wilson (1995), 81 A.C.R. 270 [Wilson].

35 Ibid. at 275, Kearney J.

36 Ibid. at 275–76.

37 See also Munungurr, supra note 11 at para. 24, where the court discussed this issue.

38 I note Dorsett and Rush's discussions with respect to determining native title adjectivally, that is evidentially. Their point also applies in this context. See Dorsett, Shaunnagh, “‘Since Time Immemorial’: A Story of Native Title and the Case of Tansitry” (2002) 26 Melbourne U.L. Rev. 3 at 18, referring to Rush, Peter, “An Altered Jurisdiction: Corporeal Traces of Law” (1997) 6 Griffith L.R. 144 at 155 [Rush].

39 Munungurr, supra note 11 at para. 23; Robertson, supra note 5 at para. 6.

40 Miyatatawuy, supra note 31 at 44.

41 Ibid. at 46–47.

42 Ibid. at 47. See also Mamarika v. R. (1982), 42 A.L.R. 94 at 96 [Mamarika], where a similar petition was submitted.

43 For another example of banishment see R. v. Yunipingu (24 June 2002), Northern Territory SCC2001/3733 (N.T.S.C), Martin C.J. [Yunipingu].

44 Miyatatawuy, supra note 31 at 47.

45 Ibid. at 49. Compare with Lalara, supra note 11 at para. 11 where the judge did not accept the victim's signed document as representative of the community's wishes.

46 Miyatatawuy, ibid.

47 Walker 2, supra note 31.

48 Ibid. at 6.

49 R. v. Jadurin (1982), 44 A.L.R. 424 [Jadurin].

50 Ibid. at 427. See also the description of payback by Aboriginal witnesses in Barnes, supra note 31 at 594. For a discussion about weapons used by Aboriginal people including images, see Davidson, D.S., “Australian Throwing Sticks, Throwing Clubs and Boomerangs” (1936) 38:1American Anthropologist 76.

51 Jadurin, ibid., at 428.

52 Minor maybe an exception, intoxication is not mentioned, however given the description of the facts it is nevertheless likely that both the defendant and victim were intoxicated in this case as well. Minor, supra note 7 at 7. Munungurr was a non-drinker but drink was at the core of the troubles behind the assaults. See Munungurr, supra note 11 at paras. 6–7. 1 note that in most cases the victim was also intoxicated.

53 I note that the High Court have recently suggested that Brennan J.'s judgement in R. v Neal (1982), 149 C.L.R. 305 at 326, (1982) 42 A.L.R 609 at 622, Brennan J. [Neal], represents the authoritative position on the question of taking Aboriginal customary law into account in sentencing. Brennan J., found that customary law could be taken into account as a material fact. See Jamilmira v. Hales [2004] H.C.A. Trans 18 (13 February 2004), online: High Court of Australia Transcripts, (application for special leave to appeal to the High Court, 13 February 2004, Gummow, Hayne & Heydon JJ. per Gummow J).

54 Tribal law is not “condoned” see Minor, supra note 7 at 11; Wilson, supra note 34 at 276; R. v. Anthony (12 February 2004), Northern Territory 20326538 (N.T.S.C.) [Anthony]. “Customary criminal law was extinguished by the passage of criminal statutes of general application (…)” (R. v. Miyatatawuy, supra note 31 at 49, Martin C.J.).

55 Rush, supra note 38 at 154.

56 See Foucault, Michel, Discipline and Punish (London: Penguin, 1977) at 103, 187 [Foucault].

57 Ibid. at 194.

58 Miyatatawuy, supra note 31 at 49. Note Jackson's comment that indigenous law may be “captured” within white law, Jackson, M., “Justice and Political Power: Reasserting Maori Legal Process” in Hazlehurst, Kayleen, ed., Legal Pluralism and the Colonial Legacy (Aldershot: Avebury, 1995) at 252.

59 Note recent examples: Austl., Commonwealth, Northern Territory Law Reform Committee, Report on Aboriginal Customary Law (Darwin: NTLRC, 2003) [NTLRC 3]; Austl., Commonwealth, Law Reform Commission, Background Paper on the approach of the Courts to Aboriginal Customary Law in the Areas of Criminal, Civil and family Law by Williams, Victoria (Perth: L.R.C.W.A., 2003); Justice Dean Mildren, “Aboriginal Sentencing” (Paper presented to the Colloquium of the Judicial Conference of Australia Inc. Darwin, May 2003) online: The Judicial Conference of Australia

60 NTLRC 1, supra note 1 at 6.

61 On average about 558 Aboriginal people are daily in custody in the Northern Territory. See Austl., Northern Territory, Department of Justice, Annual Report 2002–2003 (Darwin: Northern Territory Government, 2003) at 48. I note also that 66% of children placed “in care” by state officials in the Northern Territory are Aboriginal children. See Austl., Northern Territory, Department of Health and Community Services, Annual Report 2002–2003 (Darwin: Northern Territory Government, 2003) at 120. A previous report found that when imprisoned, sentences for most Aboriginal people are less than three years, see Austl., Commonwealth, Report on the Royal Commission into Aboriginal deaths in Custody, vol. 1 (Canberra: AGPS, 1991) at 382.

62 See Minor, supra note 7 at 7–16. Asche C.J., and Martin J., agreed with him.

63 Ibid. at 8.

64 Ibid. at 14. See also Clark, Geoff, “Not Just Payback: Indigenous Customary Law” (2002) 80 Reform 5 at 10, where he notes: “[a]s a matter of priority, we need to make an investment in the restoration of structures that support cultural authority and anchor our people in the sense of who they are and what they can achieve.”

65 Minor, supra note 7 at 14, Mildren J. (the rest of the court agreed with him). See also Joshua, supra note 31.

66 Minor, ibid., at 12, Mildren J. is quoting partly from Neal, supra note 53 at 326 per Brennan J.

67 Minor, ibid. See also Austl., Commonwealth, Law Reform Commission, The Recognition of Aboriginal Customary Laws, (Report No. 31) (Canberra: AGPS, 1986) at para. 508. See also Hazlehurst, Kayleen, “Australian Aboriginals Experiences of Community Justice” (1991) 6 Law & Anthropology 46.

68 Specifically see Racial Discrimination Act 1975 (Cth.), s. 9.

69 Rogers, supra note 9 at 307, quoted by Mildren J., in Minor, supra note 7 at 12.

70 Finnane, Mark, “‘Payback’, Customary Law and Criminal Law in Colonised Australia” (2001) 29 Int'l J. Soc. L. 293 at 303 [Finnane].

71 See Criminal Code (N.T.), s. 26(3).

72 See Anthony, supra note 54 at para. 34. In Barnes, supra note 31, Bailey J., heard evidence of the risk that the applicant would be crippled permanently by the spear in the femoral artery (ibid., at 2). See also NTLRC 3, supra note 59 at 26.

73 Because not likely to cause grievous bodily harm. But note Barnes, ibid., at 597, and see Ilkovski, Bill, “Tension Unresolved: The Place of Traditional Punishment in the Criminal Law” (1997) 21 ALMD Advance 2 at 3, where he notes that Barnes had consented to payback but in spite of this consent the court were concerned for his safety in the face of payback, and refused to allow bail.

74 Note Bailey J.'s view it was “not irrelevant” to bail whether the proposed payback was an offence under the criminal law. See Barnes, supra note 31 at 597.

75 Mamarika, supra note 42.

76 Ibid. at 99. See also Miyatatuwuy, supra note 31 at 47, where the repercussions of the assault had been dealt with to the satisfaction of the community.

77 Minor, supra note 7 at 13–14. See also Finnane, supra note 70 at 294.

78 Minor, ibid. at 13. See also Anthony, supra note 54 at para. 23, Martin C.J.

79 See Walker 2, supra note 31 at 6.

80 Ibid. at 9.

81 Walker had already served some nine months in custody.

82 See Walker 2, supra note 31 at 10; Mamarika, supra note 42 at 99–100.

83 See Dreyfus, Hubert L. & Rabinow, Paul, Michel Foucault: Beyond Structuralism and Hermeneutics (New York: Harvester Wheatsheaf, 1982) at 157; Foucault, supra note 56 at 176.

84 See Walker 2, supra note 31 at 6.

85 See Kearney, J., “Sentencing: Talcing Aboriginal Customary Law Sanctions and Community Attitudes into Account” (1994) Balance 1 at 6.

86 Jadurin, supra note 49.

87 Ibid. at 427. See also NTLRC 1, supra note 1 at 26.

88 Jadurin, supra note 49 at 428.

89 Miyatatawuy, supra note 31 at 49; Joshua, supra note 31 at para. 39.

90 Poulson, supra note 31 at 392, Thomas J. I note that the payback had been carried out before Poulson was sentenced.

91 Supra note 11.

92 Ibid. at para. 33.

93 Ibid. at para. 12; NTLRC 2, supra note 33 at 42.

94 Munungurr, ibid., at para. 36. For offences of grievous bodily harm and two assaults (against police officers) the overall sentence was 4.5 years, to be suspended after serving three months along with requirements for supervision and attendance at the community meetings.

95 Ibid. at para. 36.

96 Walker 2, supra note 31.

97 See for example Yunipingu, supra note 43.

98 Munungurr, supra note 11.

99 Minor, supra note 7 at 10; Munungurr, ibid.; Wilson, supra note 34 at 276; R. v. Peipei (8 July 2002), Northern Territory SCC 20014404 (N.T.S.C), Riley J.; Poulson, supra note 31.

100 Robertson, supra note 5 at para. 35; Munungurr, supra note 11 at para. 36.

101 Flynn, Thomas, “Foucault's Mapping of History” in Gutting, Gary, ed., The Cambridge Companion to Foucault (Cambridge: Cambridge University Press, 1994) at 41. Foucault notes: “(…) although surveillance rests on individuals, its functioning is that of a network of relations from top to bottom, but also to a certain extent from bottom to top and laterally; this network ‘holds' the whole together and traverses it in its entirety with effects of power that derive from one another: supervisors perpetually supervised.” (Foucault, supra note 56 at 176–77).

102 Note Rabinow, Paul, Anthropos Today (Princeton: Princeton University Press 2003) at 45, where he discusses Foucault's insight that power is not external to freedom. In this vein I also note Benton's comment that Aboriginal people can not necessarily be seen to be collaborating just because they take actions that “affirm the legitimacy of colonial courts.” See Benton, Laura, Law and Colonial Cultures (Cambridge: Cambridge University Press, 2002) at 258 [Benton].

103 Rush, supra note 38 at 147.

104 For a discussion of the approach of the Northern Territory Supreme Court during the 1950's, see Douglas, Heather, “Justice Kriewaldt, Aboriginal Identity and the Criminal Law” (2002) 26:4Crim. L.J. 204.

105 This kind of analogy is made by Benton describing E.P Thomson's theoretical position. See Benton, supra note 102 at 256–58.

106 Benton, Ibid. at 11, 25. See also Austl., Commonwealth, Northern Territory Law Reform Committee, The Recognition of Aboriginal Law as Law: Background Paper 2 (Darwin: NTLRC, 2003) at 1617 for a discussion about what legal pluralism means.

* Senior Lecturer, Griffith University, Queensland, Australia. This research is part of a broader project. A version of this paper was presented at the Socio-Legal Studies Association (SLSA) conference, Glasgow, April, 2004. The paper was written while the author was a visitor at the Centre for Socio-Legal Studies at Oxford University during 2004.

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