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THE RECOGNITION OF ABORIGINAL CUSTOMARY LAWS - 728. Penalties.
A by-law may specify a penalty not exceeding $500 or $50 a day
(s25(6)). No longer do Aboriginal courts have the power to order
imprisonment for breach of the by-laws. This was put beyond doubt
in
Adcock v Puttaburra, ex parte Puttaburra
, [148] where Justice Kneipp held that the new Act did not
authorise an Aboriginal court to impose a term of imprisonment, and
that any by-laws kept in force by the new legislation had to be
construed accordingly. An Aboriginal court however has the new power
to make a fine option order (reg 24). Thus it can order community
work to be done in substitution for a fine. [149] The question
whether imprisonment may be ordered for fine default is unresolved.
An offence against the Act itself is liable to a penalty of $500
or imprisonment for six months. Such offences would not be dealt
with by an Aboriginal court unless the Act specifically provides for
this (s79). The regulations may provide a penalty for breaches of
the regulations not exceeding $200 (s82, reg27). Until councils draft
and have approved new by-laws the existing ones remain in force (so
far as these are consistent with the Act and regulations). [150] It
is clear that the intention behind the new legislation was that
Aboriginal courts would continue to operate, but with more limited
powers.
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