Aboriginal Customary Law as a Ground of Criminal Liability

454. Special Customary Offences. The creation of special customary law offences is one way to underwrite and reinforce customary laws within Aboriginal communities. Such offences could be additional or alternative to offences against the general criminal law, and would fall (in the absence of special provision to the contrary) within the jurisdiction of existing courts. The Commission received a number of submissions from Aboriginal communities seeking the assistance of the general legal system to support their customary laws. This was often described as a way of making the two systems work together. Some of the submissions went to considerable detail, and appeared to involve a form of codification of the customary laws of the community presenting them, although there were differing perceptions of how such laws would be enforced. Some submissions were based on the assumption that power would be given to the community to deal with encroachments, for example through the creation of some kind of Aboriginal court to enforce local by-laws. Others assumed that the ordinary courts would hear charges for breaches of the codified customary laws as they would hear breaches of any other law. The former question will be discussed in Part VI of this Report: only the latter question is dealt with here.

455. The Lajamanu Submission. The most extensive submission involving a form of codification of customary law along with elements of the general criminal law was presented by the Lajamanu Community (NT) at a Public Meeting on Alice Springs on 13 April 1981.^[1] It was in the following form:

1. Makurnta and Makurnatawangu skin group — (Jupurrula * Japanangka)

2. Example

Jupurrula would call Japanangka Makurnta and again Jupurrula could call Jangala Makurntawangu.

3. Our custom to share goods with one another. We would not like to see spearing or killing or as we say (pay-back). Would like to see heavy fine or imprisonment.

4. Wrong marriages. We would like to see law against it. If law was broken in wrong marriages we would like to see it in white roans court for heavy fine or imprisonment or pay compensation for the straight one.

5. Promise systems must be fulfilled. If broken, compensation must be paid to the man who the parents promised their daughter (for straight one).

6. Customary Law. Right brother-in-law must make initiation ceremony for his little brother-in-law. It must be the right ngumparria.

7. If a child do wrong, mother or father and uncle or big brother in skin system must punish the child (boy or girl) by hitting him or her straight away the wrong’s been done. If not carried out this way we would like to see mother and father pay compensation.

8. All ceremonies must be performed in soberly manner (with sober people). If drunken people on site, will be dealt with by law (fine or imprisonment).

9. If another man takes another man’s wife that man must return the woman back to her rightful husband and charged under white marts laws (heavy fine or imprisonment). If that man is married and plays around with another man’s wife he must square himself with the wife to the man he’s doing wrong to through the Aboriginal Court and pay compensation to that woman’s husband.

10. Wrong skin system of marriage. Their children should follow their mother’s side of skin group or family.

11. If widow woman wants to marry again she must get permission from her son-in-law first and then from her late husband’s brothers and there should be an agreement within close relatives, if there is no agreement then the widow should not marry again, but should be dealt with through the Court.

12. If there is a kaminingi between 2 groups or 2 men this must be dealt with through the Court. Example’ If Jupurrula doesn’t want Napangardi to marry Jampijimpa, Janamarra or Japaljarri, this means kaminingi.

13. Any tribal man must dance and practice his own dreaming and his heritage.

14. Any person caught destroying or stealing sacred objects will be charged through the court or imprisonment.

15. If a woman goes through man’s sacred grounds she must (go walkabout through the bush) heavy fine or imprisonment.

16. If a man kills someone in family or another group, should take imprisonment for 15 to 20 years.

17. If a man make avoiding cousins through initiation of a little boy, he then mustn’t make love to the little boy’s sister, if he does he should pay heavy fine or imprisonment.

18. We want rape charges to be enforced by the law of Australia.

19. If man and woman makes trouble during ceremonies, they should pay compensation, heavy fine or imprisonment.

20. Mother-in law can take her son-in-law to court if promise system not working.

21. Sorry cuts not allowed and that to be enforced. That goes for man or woman.

22. Anyone threatening anyone, the matter will have to be settled in Court, pay compensation or imprisonment.

23. Aboriginal Law. When woman dances with fire sticks in her hand in the ceremony of a boy that makes her an in-law to the boy and she will then promise her daughter to him.

24. If a young man plays around with his elder brothers promised wife, he then cannot be accepted by his elder brother in tribal business which concerning them both.

25. No widow should go walkabout.

26. There is no law to call anybody names especially sister.

This is a comprehensive attempt to work out different ways in which the general law and Aboriginal customary laws should interact. It concentrates on aspects of customary laws which cause problems in the community as well as on general law and order problems. Clearly it is based on the notion of the community either having its own court to deal with such matters, or at least having some direct input into the general court system. The established Aboriginal Council at Lajamanu might also be involved in the establishment of any such schemes.

456. The Mornington Island Submission. A submission from the Mornington Island Community (Qld) sought the power to deal with a broad range of customary law matters as well as general law and order offences. It was envisaged that an Aboriginal court run by the community would have responsibility for enforcing these laws:

CRIMES THAT THE ELDERS WISH TO PUNISH PEOPLE FOR

Children’s crimes

• vandalism

• damaging property

• stealing

• cruelty to animals

• not attending school

Violent crimes

• causing injury

• killing a person

• murdering a person

Crimes to do with people’s property and public property

• stealing

• damaging property

• breaking & entering

• entering somebody’s house or yard without permission or good reason

Otherwise causing harm to people

• threatening

• insulting

• spreading lies and gossip that may cause harm to someone

Crimes to do with magic and pooripoori business

• people are not to bring anything from the mainland to make pooripoori or make sorcery (like stones)

• young men must not wear red headbands or rags

Crimes to do with keeping the peace

• swearing

• fighting

• making a loud noise that will make other people in the community unhappy

Land laws to be kept

• anybody catching turtle or dugong must give the correct pieces of meat to the local toolmata

• anybody who wishes to get water lilies, panja, wotut, bana, pandanus nuts, must get permission from the local toolmata

Laws to do with food taboos

• a person cannot eat an animal, fruit, or vegetables if it is their own totem

• pregnant women and young women must eat the right foods as directed by the elders

Crimes to do with looraka

• new looraka men not to have sex until cleared by elders

• new looraka men to eat the right foods as instructed by the elders

Crimes to do with looraka

• new looraka men not to drink beer or alcoholic drinks except under the supervision of the elders

• bark parcels must be looked after by the correct relatives

• only men who have been through looraka are allowed to go near the koordu-koordu ground

• looraka men must show respect for any women who danced for them in the ceremony

• looraka men must not use their name in vain. It is forbidden to escape from personal responsibilities or misbehave in any way by saying ‘I’m a man now, you can’t stop me’.

• Young men who come out of high school for the looraka ceremony must go back to high school for a time after the ceremony

Family laws

• Parents and other responsible relatives (grandparents, uncles, aunts, especially on mother’s side), must look after their children properly. This includes (a) keeping them out of trouble; (b) punishing them when they get into trouble; (c) sending them to school; (d) feeding them good foods; (e) spending government cheques on things needed for the children. Note:- in the case of someone who continues not to look after their children, or in the case of a child who doesn’t have parents on Mornington Island, then the closest responsible relative must look after the child. All government cheque money (child endowment, supporting mother’s benefit, family allowance) must be handed over to that relative by the guilty parent/s.

• Young people must not have sex, or live together as man and wife, unless they are straight skin for one another, and both of their families have agreed. Otherwise no person should try to tempt a partner for sex, nor carry out sexual relations.

• If a child is making trouble, parents and other relatives must step in as soon as possible to stop the child.

• If a woman gives birth to a baby, her brother must not visit her until elders give permission.

• Parents, grandparents, uncles and aunts who are responsible for children who commit crimes can be punished also.

NB All these laws will apply to Mornington Island people when they are on the mainland. People committing crime, there will be punished when they return.

PUNISHMENT THAT THE ELDERS WISH TO USE

• fining people for money

• crossing people off the beer canteen list

• making people do council work

• making people work on a community farm to be started a long way up the island

• men might be sent to Forsyth Island for a period of time

• people might be sent to the mainland for a period of time

• young men may have to defend themselves with a fighting stick against an elder (but no blows will be delivered to the body)

• people may have to give gifts or payment, or do work for persons who suffer, because of their crimes

• people will be sent to the Mornington Island jail

• people will be sent to a mainland jail.^[2]

Some aspects of the Mornington Island proposal could be incorporated relatively easily into the Aboriginal court system operating on Aboriginal trust areas (formerly reserves) in Queensland. Mornington Island had such a court until its status changed from a reserve to a local government shire in 1978.^[3] One innovation of the Mornington Island proposal relates to the incorporation into local community laws (equivalent to the by-laws in trust areas) of aspects of local customary laws. The Mornington Island Community Council is in the process of drafting local by-laws, but it remains to be seen whether they will incorporate any aspects of local customary laws.^[4]

457. The Roper River Submission. In contrast to this proposal, members of the Roper River community (NT) in discussion with the Commission sought a broader interaction of the two laws but were less specific about customary law matters. A number of ways in which ‘European law should recognise breaches of traditional law’ were suggested; but in addition administrative arrangements to improve the way in which the general legal system impinges upon Aborigines were also suggested. The following resolutions were presented on behalf of the Roper River community to the Commission’s Public Meeting in Darwin on 3 April 1981.^[5]

RESOLUTIONS PASSED BY THE TRIBAL ELDERS OF ROPER RIVER

DRINKING OF ALCOHOL

This is a matter for white persons law. If a person brings alcohol into Roper River without a permit then this matter can be properly handled by white persons law. However, if a person breaks traditional law by say drinking alcohol and walking into a sacred ceremony whilst under-the influence of alcohol he should be first punished by the elders. The European legal system should recognise the right of the elders to punish such persons, even by physical punishment, including spearing in the leg, if necessary. We believe that there should be a Registry set up under European Law recognising the rights of tribal elders to traditionally punish persons who offend our Sacred Law. If necessary our tribal elders can then refer the offender to the police to be dealt with under European Law if such action is appropriate.

MARRIAGE

If a person steals someone who is promised to another person in marriage, or if a person goes with a person of a different skin group, they should also be punished in our traditional way by the elders, and if necessary by physical punishment. We would also like traditional marriages to be recognised under European Law and for wives and husbands to have the rights and obligations which come from this recognition of traditional marriages. If at any time this recognition of traditional marriages, under European Law, creates conflict to our traditional culture, then these conflicts must be resolved by a meeting of our elders.

SECRET AND SACRED LAWS

If a young person breaks our law and has no respect for our law then he must pay compensation to the Master of Ceremonies and then if necessary, the Master of Ceremonies can pass this compensation on to the elders, at their direction.

The compensation normally takes the form of compensation in money ($500.00) or kind (spears, boomerangs). Sometimes persons placed a Sacred Taboo on a shop and this prevents people from getting food from the shop. This is the wrong thing to do and is against our law. The person who makes the Sacred Taboo must pay compensation. If he refuses to pay this compensation he should be placed in gaol. Thus is such a situation the European Law should recognise breaches of traditional law as ‘being punishable by European punishment. These laws should apply to both men and women.

POST MORTEMS

Sometimes people die and nobody knows the reason. It could be because of a pay back or perhaps the person dies of natural causes. Whatever the reason for the death the cause of death should be passed on by the European Doctor to the tribal Elders in the strictest of confidence. The Elders can then decide on the appropriate action in dealing with this information.

POLICE ON SACRED SITES

We do not believe that Police should be allowed to visit sacred areas, particularly during ceremonies. If they have to see someone they should first send a tracker down. They should have to pay compensation if they breach this law and if necessary, be punished in the white courts.

458. Yirrkala Proposals. The Garma (Law) Council of the Yirrkala Community also provided the Commission with a set of agreed rules to be followed by all members of the community and by visitors.

General rules about how to behave

1. (a) It is wrong to do anything which will or could injure another person.

(b) It is wrong to take or damage anything which belongs to somebody else.

(c) It is wrong to go where other people have a right to be by themselves.

(d) It is wrong to do anything which will cause great noise or violence and will make other members of the community frightened or unhappy.

(e) It is wrong to behave outside the community in a way which will offend members of other communities or will cause trouble with them.

(f) It is wrong to do anything forbidden by Aboriginal Law and tradition or to do anything which will make that Law weak.

(g) It is wrong not to do those things which by Aboriginal law or tradition should be done.

(h) It is wrong to do anything forbidden by Balanda law.

2. If a member of the community does any of these wrong things he or she may be punished by the community.^[6]

459. The Groote Eylandt Aboriginal Task Force Report. The Task Force was asked to investigate among other things ‘the means by which traditional customary law can be strengthened to deal with problems’ on Groote Eylandt. The Task Force considered that the complexities of this issue required ‘time and expertise … beyond the existing available resources of the Task Force’. It therefore recommended that:

The Australian Law Reform Commission be requested to undertake an investigation into the incorporation of Groote Eylandt Customary Laws within the judicial system presently operating in Groote Eylandt in close consultation with the leaders of the Aboriginal Communities.^[7]

Commission staff returned to Groote Eylandt for a third time in October 1985 and discussed this recommendation with members of the Task Force and others. There appeared to be few customary laws which the people of Groote Eylandt wanted the visiting magistrate to deal with. However the question whether a by-law should be made under the Community Government Act (NT) on one particular matter was raised. No clear view was expressed as to whether such a by-law should be made, or whether the matter was best dealt with in other ways. The Commission also received strong requests for the magistrates courts to take greater account of the views of the community, particularly in sentencing, and for hearings to take place within the communities rather than at Alyangula. There seemed to be considerable local support for the scheme operating at Galiwin’ku, and for its extension to Groote Eylandt. These matters are discussed in Part VI of this Report.^[8]

460. Alternative Courses of Action. Proposals such as these clearly indicate the reality of Aboriginal customary laws in the communities in question. They manifest a real concern to work out ways of reconciling the conflict between customary laws and the general legal system. The proposals would not involve the exclusion of the general legal system; rather they seek to work out in some detail the interplay between local customary laws and the general criminal law. The submissions illustrate the wide range of customary matters that could potentially be incorporated as offences under the general legal system. The submissions all involve some form of codification, although there is no agreement on how this should be done, or how the laws should be enforced. Some communities expressed the view that they should enforce the laws themselves, others preferred the matters to be dealt with by the general courts. The resolutions passed by the tribal elders at Roper River treat some matters as falling within ‘white person’s law’, other matters as customary matters which should be recognised by the general legal system, and yet others which can be resolved by simple administrative changes. There is no clear indication whether the laws should apply only to members of the local community, though there may be no reason why they should not apply to outsiders, at least in some cases. Nor was there any consensus on whether penalties should be restricted to the range of punishments under the general law or whether special customary punishments should be available. The common element is that Aboriginal communities have customary laws which they seek to have observed and enforced, and they consider the general law should assist in this process. There are several ways that this may be achieved:

• the incorporation of special customary offences;

• increased use of existing general laws, together with special measures of protection in specific instances; and

• the exercise of by-law powers.

These three options will be examined in turn. They do not, of course, preclude forms of administrative recognition. The sensitive handling at the administrative level of issues which touch on customary law matters may go a long way to meeting many of the requests for recognition. Examples of such requests that may be able to be met administratively include requests:

• that bodies be returned to communities for burial;

• that post-mortems interfere as little as possible with customary funeral rites;^[9]

• that the practice of vacating houses following death not be interfered with;^[10]

• that Aboriginal people themselves not be required to fill in the names of dead people in death certificates, funeral notices and the like;^[11]

• that exemptions be made to the requirement of a birth certificate where none was in fact issued;^[12] and

• that where possible Aboriginal women who wish to give birth within the community be allowed to do so.

The remainder of this Chapter examines options for legal (as opposed to administrative) incorporation of customary laws.