Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
to what extent Aboriginal communities should have the power to apply their customary law and practices in the punishment and rehabilitation of Aborigines.
It is not clear whether the second question posed by the Reference is to be restricted to the punishment and rehabilitation of Aborigines in respect of offences against the general law, or whether it also encompasses punishment and rehabilitation of Aborigines only for offences against Aboriginal customary laws (whether or not such offences are also offences against the general law). There are difficulties on either assumption. On the first interpretation, there is the problem that the offence may not be recognised as a wrong under Aboriginal customary laws, or may be regarded in a very different light. This raises questions of the relationship between the general criminal law and its administration, and Aboriginal customary laws and practices, which are discussed in Part IV. In part these questions involve the 'delegation' of the power to punish for offences defined other than in Aboriginal terms. In part they involve the mitigation of general law offences to take customary laws into account (e.g. through criminal defences of various kinds or in sentencing). As Chapters 18 and 21 conclude, there may be value in at least some of these forms of recognition, but they are limited in character and indirect in any effect they may have in supporting or restoring Aboriginal authority. On the second interpretation, that is, that the power of Aboriginal communities extends not only to punish or rehabilitate the offender but, through the application of local customary laws, to define the offence, a considerably greater degree of local control seems to be envisaged. But the assumption seems to be that this control is to be limited to those rules and sanctions properly regarded as 'customary' (as it is certainly to be limited to Aboriginal defendants). This is a very modified form of control, no matter how flexible the definition of 'customary law and practices'. As soon as one talks about the establishment of justice mechanisms in some official way (e.g. Aboriginal courts) in Aboriginal communities, this inevitably raises the idea of formal mechanisms of a 'non-customary' kind. [78] It is almost a contradiction in terms to talk of setting up an official mechanism in an Aboriginal community to apply customary laws. It would be equally inconsistent to confer 'autonomy' on such communities on condition that it was only exercised in a certain, recognisably 'customary', way. Considering the range of new problems these communities face, this would be no autonomy at all.