• Introduction
• Defining Aboriginal customary law
• Background
• Defining the issues
• Recognition of Aboriginal customary law by the general criminal law – an evaluation
• Recognition of customary law on the basis of Mabo
• Recognition of customary law on the basis of the offender’s cultural background
• Conclusion
• Evidence and procedure

3.1 This chapter examines the relationship between Aboriginal customary laws and sentencing under the general criminal jurisdiction of New South Wales.

3.2 In 1986, the Australian Law Reform Commission (the “ALRC”) released its report, The Recognition of Aboriginal Customary Laws¹ (the “ALRC Report”), resulting from nine years’ research and inquiry into whether, generally, it would be desirable to apply Aboriginal customary law to Aboriginal people, and specifically, whether and in what ways Aboriginal customary law should be recognised within the framework of the general criminal law, and whether Aboriginal communities should have the power to apply their customary laws and practices in the punishment and rehabilitation of Aboriginal people.² The Report, a work of quality and sensitivity, is a comprehensive study of the issues involved, the arguments for and against recognition of Aboriginal customary law, and the manner of such recognition. It also thoroughly documents relevant case law up until 1986.

3.3 The ALRC Report has had favourable critical reviews³ and endorsement in subsequent reports, including the report of the Royal Commission into Aboriginal Deaths in Custody (the “RCIADIC”).⁴ The Commission also commends and endorses the ALRC Report. We do not propose, in this Report, to duplicate research or to set out again, in any great detail, historical context and description. We have confined our research to legislation, case law and secondary sources since 1986.

“Urbanisation” of New South Wales’ Aboriginal population

3.4 It must be acknowledged that Aboriginal customary law may have considerably reduced impact in New South Wales compared with, for example, the Northern Territory or South Australia. New South Wales’ Aboriginal population is far more dislocated, and there has perhaps been a more marked breakdown of traditional ways, than in other States. However, the issue of whether it is valid to consider the application in New South Wales of Aboriginal customary law is not dependent upon categorising the Aboriginal population into “tribal”, “semi-tribal” and “urban”. This is too simplistic, and the process has been strongly criticised by Aboriginal writers:⁵

The categories “tribal”, “semi-tribal” and “urban Aborigines” are Colonial relics that, in the attempt to categorise, serve only to further mystify and confuse European conceptions of Aboriginal life.⁶

3.6 The application of Aboriginal customary law may not be as overtly apparent in New South Wales as in other states, but Aboriginal groups and individuals emphasised, in consultations with the Commission, that it would be wrong to say that Aboriginal customary law does not operate at all. It may seem as if it does not exist because, in New South Wales, it is not played out as a physical presence. To use an obvious example, the incidence of punishment by spearing would be almost non-existent in New South Wales. On the other hand, a more subtle application of Aboriginal customary law in maintaining equilibrium within, and between, clans and communities is certainly in force. In particular, shaming and banishment are frequently used forms of Aboriginal punishment.

3.7 As well, even in urban areas there are discrete and strong Aboriginal communities with authority vested in an elder or elders, such as in Redfern, La Perouse, Blacktown, Mt Druitt and Parramatta.⁷

3.8 However, a contrary view has also been expressed to the effect that, because of the extent of assimilation of New South Wales’ Aboriginal population into the general population, tribal issues no longer have relevance. Furthermore, for customary law to have authority over the lives of the community members, the tribal elders must have respect; some feel that in New South Wales, very few elders have the required respect of their communities, or the requisite knowledge and learning.

3.9 Bearing in mind this contrary view, the Commission nonetheless accepts that Aboriginal customary law may well be relevant in some New South Wales Aboriginal communities. As the ALRC found:

[d]espite the lack of detailed knowledge in certain areas, there are many indications that Aboriginal customary laws and traditions continue as a real controlling force in the lives of many Aborigines.⁸

Self-determination

3.10 Any discourse on Aboriginal customary law must confront the quest of many Aboriginal people to have complete jurisdiction over the legal regulation of their lives. Over many years, increasing in recent times, there has been extensive discussion of self-determination and self-management for Aboriginal people. There is, as well, an increasing international trend towards granting Indigenous peoples the right to self-determination where such groups are largely self-managing. The International Covenant on Civil and Political Rights⁹ and the International Covenant on Economic, Social and Cultural Rights,¹⁰ both of which Australia has ratified, contain articles dealing with self-determination:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.¹¹

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognised human rights standards.¹³

3.13 Nonetheless, the issue of whether Aboriginal customary law should be recognised by the general criminal justice system is significant in its own right, “however much it is necessary to place [it] in [its] proper context as part, and only part, of a wider debate”,¹⁵ and despite the reality that such recognition will not satisfy demands for self-government or autonomy.

DEFINING ABORIGINAL CUSTOMARY LAW

3.14 There is no generally accepted definition of what constitutes Aboriginal customary law,¹⁶ not least because, it is almost impossible to describe comprehensively. There is secrecy surrounding many of the laws, some of which are “sacred and not to be spoken about to anyone”, except the members of the relevant tribal group.¹⁷ Tribal laws differ from community to community. Information obtained from one Aboriginal tribe would not include information about the laws of another tribe as they would not be permitted to speak about those other laws. A universal definition cannot be formulated by generalising from a sample description.

3.15 Further, Aboriginal laws are part of an oral culture, handed down from generation to generation by word of mouth.¹⁸ There is no written code or statement of customary laws.

3.16 Aboriginal law was encoded in each group’s religious tradition. This fusion of law and religion in Aboriginal culture gives rise to its own obstacle to defining that law. Eggleston has identified the difficulty in the following terms:

Law and religion were intimately bound up in Aboriginal society ... and any attempt to identify certain segments of Aboriginal life as “legal” involves the imposition of alien categories of thought on the tribal society. Some modern Aborigines have made comparisons between their law and the Australian legal system on the basis of common notions of rules and sanctions for their breach but they have also interpreted the word “law” to mean “way of life” and “religion” ... This is not to deny that there was a system of “law” in traditional Aboriginal society. I am using a functional definition of “law”, one which places primary emphasis on law as a means of social control ... The use of the word “law” to describe measures of social control in Aboriginal society is justified ... by the belief that every society must have means for settling disputes, and must have law in this sense, no matter how difficult it might be to identify binding rules or institutions corresponding to the legal system in our own society.¹⁹

3.18 Following Justice Blackburn’s approach, including acknowledging that it is probably inexpedient to attempt a definition, it may be possible to say that, in very broad terms, Aboriginal customary law is constituted by a body of rules, values and traditions which are accepted as establishing standards or procedures to be followed and upheld.²³ It is also the context of relationships between people within families and among groups across social systems.²⁴ Some generally applicable observations may be made.

3.19 The practice of Aboriginal customary law is:

the practice of well-health for the individual in the family and the group. Aboriginal Law was/is the maintenance and healing of relationships and was/is a constant process of negotiation, mediation and conciliation in managing and resolving the conflicts natural to all human associations.²⁵

3.21 Langford Ginibi, in describing her experience of the operation of customary law, relates that when there was a dispute, the elders met to discuss the punishments: their word was law.²⁷ Langford Ginibi has also observed that Aboriginal customary law is heavily influenced by the need to avenge the victim and that, to an outsider, punishments can at times appear arbitrary and harsh.²⁸ Serious transgressions, such as murder, may result in some form of physical punishment, such as a payback spearing. However, it is also important to note that physical punishment is only one way, and not the most common way, for Aboriginal disputes to be settled.²⁹

3.22 There are also numerous offences which are not recognised by non-Aboriginal law, such as insulting an elder, singing sacred songs in public, showing sacred objects to women and neglect of kinship obligations.³⁰ Where these offences have been committed, the community cannot look to non-Aboriginal law to punish the offender, nor provide a victim with redress. The only alternatives are to punish the offender under Aboriginal customary law, or not at all. If the punishment of these offences under Aboriginal customary law results in an offence under the criminal law of New South Wales, such as an assault, Aboriginal customary law will come into direct conflict with the criminal justice system. One of the issues canvassed in this chapter is how the courts should deal with such a situation.

3.23 The ALRC, in its Discussion Paper Aboriginal Customary Law – The Criminal Law, Evidence and Procedure³¹ stressed that:

[i]t should not be assumed that “traditional punishments” are only a response to “wrongful” acts, that they are closely regulated by rules, or that they are activated by some more or less collective decision, i.e. by a person or body authorised to act in the name of the community. Aboriginal “punishment” may be one of a range of possible outcomes of a dynamic process of dispute-settlement, with little or no resemblance to the impartial, impersonal application of defined sanctions in accordance with general rules which it is assumed by Anglo-Australian law. It does not follow that Aboriginal customary punishments (and dispute-resolving machinery generally) are not the product of something properly called “law”, or that they should be ignored because they do not reflect a particular conception of the administration of justice. But it does follow that the “recognition” of such punishments is likely to be a difficult matter, given the different assumptions behind the “two laws”.

3.25 Most importantly, what emerges from the foregoing discussion is that it is not necessary to define Aboriginal customary law as a prerequisite to its recognition in the general sentencing process. Evidence as to the relevance and content of Aboriginal customary law in the circumstances of a particular case can be put before the sentencing court in that case. This, it must be conceded, carries with it its own difficulties, discussed below under the heading “Evidence and Procedure”.

BACKGROUND

3.26 The ALRC Report chronicles the interaction between Aboriginal customary law and Anglo-Australian law, and the legislative, judicial and administrative recognition of Aboriginal customary law, following British settlement in 1788 up until the 1970s.³³ The account reminds us that British settlers imposed British law on a people having their own well-developed structures, traditions and laws.³⁴

3.27 In 1928, J W Bleakley, Chief Protector of Aborigines, commented on the injustice of applying British law to crimes involving tribal law and proposed some form of tribal court for hearing cases involving Aboriginal people. Bleakley’s was one of several government inquiries conducted during the 1920s and 1930s which considered possible recognition of customary laws.³⁵ It is interesting to note that legislation in the late 1930s and in 1940 established Native Courts in a number of States to deal with matters between Aboriginal people or between the administration and Aboriginal people.³⁶ However, the movement to establish separate Aboriginal courts subsequently faltered.

3.28 What ultimately emerges from the ALRC’s historical account is that government, the courts and individual writers, since at least 1836 and perhaps earlier, have frequently raised the question of whether Aboriginal customary law should be formally recognised by the Australian legal system. Yet the issue remains largely unresolved. Throughout Australia there is only very limited legislative recognition of Aboriginal customary laws. Similarly, there has been only limited development of the common law to recognise customary law.³⁷ The ALRC’s recommendation for a general legislative endorsement of the practice of taking Aboriginal customary laws into account³⁸ has not been implemented, despite a call by RCIADIC for its implementation.³⁹

DEFINING THE ISSUES

3.29 Should Aboriginal customary law be recognised by the general criminal jurisdiction in New South Wales? On what basis can the general criminal law take account of Aboriginal law? If recognition is appropriate, should this be formally prescribed by legislation? Should legislative recognition be in terms of a general statement of principle or should specific statutory guidelines be provided? Would it be preferable to leave recognition of Aboriginal customary law solely to judicial discretion?

3.30 Aboriginal customary law can become relevant within general criminal proceedings in a number of ways:

• Evidence may be submitted in mitigation of sentence that the offender has already received, or will receive, traditional punishment. A court could even consider suspension of a sentence to enable the Aboriginal offender to undergo traditional punishment.⁴⁰
• Where an offence has been committed in pursuance of, or as required by, Aboriginal customary laws, these circumstances may be raised in mitigation of the offence.⁴¹ For example, where a person has carried out a traditional punishment, such as a payback spearing, he himself may be charged with assault. These circumstances may also be raised as a defence to the charge, although this aspect is not relevant to this reference.
• Evidence that an offence was provoked by the victim’s breach of a customary law will usually have implications for mitigation of sentence.
• Although it may not strictly be a matter of Aboriginal customary law, evidence of traditional customs or beliefs may help to explain the defendant’s conduct and act in mitigation.
• Evidence of Aboriginal customary law may affect the exercise of the prosecutorial discretion, vested in both police and the Crown, as to whether an accused person is charged with an offence at all, or as to the nature of the offence with which he or she is charged.⁴²
• An Aboriginal offender may be subject to customary law obligations which have some relevance to determining what is an appropriate sentence. An example can be found in the convicted person’s duty in relation to forthcoming tribal ceremonies.⁴³
• Less directly, a consideration of Aboriginal customary law may arise if the offender’s Aboriginal community seek to inform the court of its perceptions of the seriousness of the crime and its attitude towards the offender.⁴⁴ If there is to be recognition of Aboriginal customary law, the further issue arises as to whether the community’s views should be relevant to the court’s sentencing. This issue, as well as the ways in which the Aboriginal community can be constructively involved in the sentencing process, is discussed in Chapter 4.

Arguments and Recommendations of the ALRC

3.31 Some of the key arguments in support of recognition of Aboriginal customary law, particularly relevant to sentencing, identified by the ALRC Report can be summarised as follows:⁴⁵

• “The reality of the customary laws in influencing the lives of traditionally oriented Aboriginal people itself calls for recognition. Non-recognition contributes to the undermining of traditional law.”
• “Non-recognition can lead to injustice.” It may be unfair, for example, for an Aboriginal person to be punished under the general law for taking action required by his or her customary laws, or to be punished under both the general law and customary law for the one offence.
• “Aboriginal people themselves support some form of recognition of their laws, and a better relationship between Aboriginal law and the general law.”
• “In some communities, Aboriginal customary law may assist … in maintaining law and order, while non-Aboriginal law and order mechanisms may be seen as neither particularly effective nor relevant.”
• “Recognition may provide a way to compensate Aboriginal people for past wrongs, including the injustice of initial non-recognition.”
• “Legislative recognition would reinforce decisions by individual judges and magistrates according recognition in individual cases … It would thus promote consistency and clarity in the law and its application to Aboriginal people.”
• Australia’s international standing and reputation would benefit from its giving recognition to the laws and traditions of its Indigenous peoples.

• A court cannot and should not recognise those aspects of Aboriginal customary laws about which it cannot be reliably informed. This aspect is discussed below, under the heading “Evidence and Procedure”. As with many evidentiary matters which the courts must deal with every day, in diverse cases, decisions are made to admit documents and testimony into evidence which may be objectionable, or, on the surface, not entirely reliable. The judge or magistrate then decides what weight he or she will give to this evidence. Court proceedings would be fettered if judicial officers took the attitude that they should only take heed of those relevant matters about which there is certain information and instruction.
• Recognition could entail the loss of Aboriginal control over their law and traditions. This argument, however, is one against codification of Aboriginal customary law, rather than recognising its relevance within the general criminal jurisdiction.
• Aboriginal women may benefit from the abandonment of certain Aboriginal traditions, in particular those that discriminate against women. However, the ALRC noted that the predominant view expressed to it, in particular by Aboriginal women, supported appropriate forms of recognition of Aboriginal customary law.
• It is now too late to recognise Aboriginal customary laws as they have ceased to exist in any meaningful form. This argument has been considered above and the Commission does not accept that this is the case. The ALRC observed that others have argued as strongly that Aboriginal laws still have meaning and strength for many Aboriginal people, despite external pressures and influences. The fact that Aboriginal customary law may be dynamic does not preclude recognition. Rather, this is a feature which needs to be accommodated in the form of recognition.
• Recognition should be geographically restricted to those Aborigines living in a strictly traditional manner. This argument has been dealt with above in paragraphs 3.4-3.9 and 3.24.
• Difficulties of definition preclude recognition. The Commission’s opinion is that it is not necessary to formulate a definition of Aboriginal customary law in order that it should be recognised within the sentencing process. (See paragraphs 3.14-3.25.)
• Recognition should not occur because some aspects of Aboriginal customary law involve unacceptable punishments which cannot be tolerated by the general legal system. The cases referred to below make clear that, in recognising the operation of Aboriginal customary law, the courts are not condoning what would be offensive conduct under general criminal law; they are acknowledging reality and ensuring that the offender is treated fairly by the general law.
• There should be “one law for all”: to recognise Aboriginal customary law would violate this principle, would create an undesirable form of legal pluralism, and would be divisive and an affront to public opinion. The ALRC acknowledged that this argument raised fundamental issues and required separate consideration. It devoted an entire chapter of the Report⁴⁶ to this argument, analysing every component with depth and integrity. There is nothing to gain from reiterating the debate in this Report. The ALRC concluded that special measures for the recognition of Aboriginal customary law would not be racially discriminatory and would not involve a denial of equality before the law or equal protection, provided the measures are responsive to the needs of Aboriginal people, are generally accepted by them and do not deprive them of basic human rights or access to the general legal system. The ALRC rejected outright the argument that recognition may be divisive and an affront to public opinion:
  
  The [ALRC] has no doubts that Aborigines are in a special position. The effects on them of European settlement have been drastic. Their traditional ways of life have in many respects been destroyed or have undergone tremendous changes. Criminal statistics demonstrate the difficulties many Aborigines continue to face with the legal system. Special measures to deal with this situation are not merely justified but necessary.

• One of the more difficult arguments in the context of discrimination, raised in submissions to the ALRC, is that recognition of Aboriginal customary law would unacceptably discriminate against some immigrant communities, to the extent that the cultural traditions, customary laws and practices of those communities are not recognised.⁴⁷ However, this argument can readily be rejected. The simple rejoinder is that Aboriginal people are the original inhabitants of Australia, having their own laws and customs which have regulated their society for thousands of years. Although British law was imposed upon them on the establishment of the British colony, their laws and customs did not thereby disappear. Rather, they have continued to evolve alongside the general legal system. People migrating to Australia since 1788 have done so on the understanding and acceptance that they would be subject to Australian law, administration and jurisdiction. Furthermore, if more is needed, the impact of non-recognition of Aboriginal customary law is demonstrably greater than is the case with immigrant minorities.⁴⁸

... the need for consistency with fundamental values of non-discrimination, equality and other basic human rights does not preclude the recognition of Aboriginal customary laws. On the contrary, these values themselves support appropriate forms of recognition of the cultural identity of Aboriginal people.⁴⁹

3.35 Sarre⁵⁰ has also identified arguments supporting recognition of Aboriginal customary law, some of which, although phrased slightly differently, are in accordance with the ALRC’s arguments. These are that recognition would:

• honour Australia’s international obligations under the UN conventions concerning Indigenous peoples;
• give effect to the recommendations of the RCIADIC;
• help to reduce the incidence of Aboriginal people coming into contact with the criminal justice system and eliminate the disproportionate imprisonment of Aboriginal people; and
• bring about safer and less violent communities given the evidence that many communities bound by customary laws have very low levels of violence and criminality generally.

3.37 One argument advanced in favour of recognition during the Commission’s consultations suggested that, before Aboriginal societies can have equal standing with non-Aboriginal societies, there must be recognition of Aboriginal customs and traditions.⁵² Furthermore, recognition of customary laws may bring about a renaissance of those laws: recognition has the potential to motivate Aboriginal people to pool their knowledge and recollections, creating the foundations for a rebirth of dormant customs and traditions. This process could well have the effect of increasing the value of Aboriginal ways and of empowering Aboriginal people, raising self-esteem and self-respect. In turn, this assists equality between Aboriginal and non-Aboriginal people. By the same token, the process of consolidating knowledge of the operation of customary law, and reactivating customs and traditions, provides an opportunity for Aboriginal culture to evolve in contemporary society.

3.38 During the consultation process for the preparation of one of its reports, the Council for Aboriginal Reconciliation found that there was:

wide support for the role which customary law … could play in assisting social cohesion and purposefulness in those communities where links with their knowledge of customary law were fragile or broken but able to be forged.⁵³

Further argument against recognition

3.40 The Commission, in its consultations, heard submissions that there are no longer any Aboriginal people in New South Wales who could truly be called elders and who, as such, were the keepers of the law, having authority over the community. Older people in the community are often referred to as elders but this, it is argued, is a misnomer. Many such people have not been through rigorous training in order to attain official “elder” status; they do not have the respect and due recognition which a true elder has, particularly from the younger members of the community. Accordingly, there is no-one to exercise jurisdiction over community members and therefore recognition of Aboriginal customary law is irrelevant.

3.41 While the Commission acknowledges the validity of this argument, it refers largely to situations of more formal conflict resolution and determination of punishment. It does not take into account some of the circumstance in which Aboriginal customary law may arise, alluded to above under the heading “Defining the Issues”. There may be occasions where the operation of Aboriginal customary law does not depend on the authority of elders, or where the elders play no role.

Report of RCIADIC

3.42 The RCIADIC made a specific recommendation in relation to the ALRC Report.⁵⁶ Its finding was that:

[t]he Australian Law Reform Commission’s Report on the Recognition of Aboriginal Customary Law was a significant, well-researched study. The Royal Commission received requests from Aboriginal people through the Aboriginal Issues Units regarding the progress in implementation of the recommendations made by the Australian Law Reform Commission and in some cases from communities which had made proposals to the Law Reform Commission.

This Commission urges government to report as to the progress in dealing with this Law Reform Report.

That in the case of discrete or remote communities sentencing authorities consult with Aboriginal communities and organisations as to the general range of sentences which the community considers appropriate for offences committed within the communities by members of those communities and, further, that subject to preserving the civil and legal rights of offenders and victims such consultation should in appropriate circumstances relate to sentences in individual cases.⁵⁷

Submissions and judicial response

3.44 A magistrate with extensive experience sentencing Aboriginal offenders, and who has taken into account evidence of the operation of Aboriginal customary law in his court, has not felt constrained from doing so by the lack of formal recognition of customary law. He regards such evidence as falling within matters which the existing law requires courts to take into account.⁵⁸

3.45 Another magistrate presiding over an area with a high Aboriginal population points out that the cases referred to in the ALRC Report were all decided in South Australia, the Northern Territory and Western Australia where there are far more Aboriginal people living in a traditional way than in New South Wales.⁵⁹ He, himself, has not seen any examples of Aboriginal people in New South Wales living in “what I understand to be the traditional way”:⁶⁰

[W]hen considering the place of customary law in sentencing in my view the position has to be that the large proportion of the Aborigines do not know and do not appear to respect their customary law.⁶¹

The assaults by the victim on the Defendant’s daughter were obviously matters to be taken into account as likely and, properly so, to cause much anguish to the Defendant. Certainly, an understanding of the Aboriginal law as to payback was of assistance and was generally taken into account but I was able to deal with the matter under existing principles as to sentencing.⁶³

I have already referred to what I consider to be the general lack of knowledge of such law and it would be an extraordinarily difficult task for such law to be documented to enable the Courts to ascertain the particular Aboriginal customary law. It appears that the customs and traditions and laws changed from Tribe to Tribe and the ascertainment of the law would be extremely difficult.

if customary law is not to be recognised or given effect to in a formal way, it should not be left out of consideration when devising broader sentencing options. Those broader sentencing options are likely to be more effective and given greater community support by Aboriginal people if it is properly recognised that they are tied to notions of customary law. In turn the Aboriginal community could have a sense of ownership or investment in the process.⁶⁵

customary law in this sense needs to be carefully defined as it does not necessarily only mean “the odd spearing” in central Australia. Listening to elders in relation to sentencing is an aspect of customary law, as are payback and shaming. Failure to recognise this would be a significant omission in analysis.⁶⁶

3.50 The DPP offers the following “significant benefits of customary law”:

• the sentenced person cannot claim to be the victim of “white man’s justice”;
• communities can take control of their interests and the law is likely to be better respected and the penalty more acutely felt as condemnation for transgressing against one’s own community; and
• a community approach with community-based punishments may be more easily accessed by victims as the victim avoids the stigma of going against his or her own people.⁶⁷

The only time that I consider customary law as appropriate is where both victim and offender are long term residents of a recognised Aboriginal community that has an established cultural authority. This does not necessarily mean that both victim and offender must be residing in the same Aboriginal community, but it does mean that offenders who commit serious offences within the wider community must be dealt with according to the laws of that wider community.⁶⁸

Survey of New South Wales District Court Judges and Local Court Magistrates

3.53 The Commission prepared a questionnaire for District Court Judges and Local Court Magistrates to survey the views and experiences of those judicial officers in sentencing Aboriginal offenders. Responses were anonymous and largely confined to selecting a “yes” or “no” answer, with a limited amount of comment. The results of that survey in relation to Aboriginal customary law are as follows.

3.54 Of the 27 judges who responded, 8 believe that Aboriginal customary law should be recognised in the sentencing process in New South Wales, 15 do not believe it should be recognised, 3 were unable to comment and 1 did not answer this question.⁶⁹ Of the 60 magistrates who responded, 27 believe Aboriginal customary law should be recognised in the sentencing process in New South Wales, 14 of whom thought recognition should be in legislation. Twenty-one do not believe it should be recognised, 10 were unable to comment and 2 did not answer this question.⁷⁰

3.55 The only certain conclusion which can be drawn from these surveys is an obvious one: that it is a very complex issue on which it is always going to be difficult to obtain consensus. It is interesting to note that Aboriginal customary law has been raised on a number of occasions in New South Wales courts.⁷¹

Conclusion

3.56 Taking the submissions and judicial views into account, the Commission finds the arguments in support of recognition of Aboriginal customary law persuasive, and that they outweigh the arguments against recognition. The Commission agrees with the conclusions of the ALRC that it is proper for sentencing courts to have regard to Aboriginal customary law in sentencing proceedings.⁷² This view is endorsed by the RCIADIC and the Australian Council for Aboriginal Reconciliation.⁷³

3.57 The New South Wales Parliamentary Standing Committee on Social Issues called for submissions on means of promoting the interests of Aboriginal people in New South Wales, including comment on legislative initiatives, or other formal means of recognising the rights of Aboriginal people.⁷⁴ Implicit in the Committee’s focus was support for recognition of Aboriginal customary law.⁷⁵

3.58 Submissions to the ALRC widely supported recognition of Aboriginal customary law in sentencing. Further, the ALRC noted that recognition “is generally accepted by judges and writers”⁷⁶ and that “[t]he converse view that Aboriginal customary laws should be rejected as a relevant factor in sentencing – was supported by no-one”.⁷⁷ The ALRC also observed that:

[t]he courts have consistently rejected arguments that Aboriginal customary laws, because they are not formally recognised by the general law and may in some respects contravene it, cannot be taken into account in sentencing.⁷⁸

RECOGNITION OF CUSTOMARY LAW ON THE BASIS OF MABO

3.60 Since the ALRC’s Report, the High Court handed down its decision of Mabo v Queensland (No 2)⁷⁹ (“Mabo (No 2)”), a turning point in the recognition of Aboriginal law. This case has subsequently been examined for the possibility of extending its application beyond native title to criminal law. Mabo (No 2) held that the notion of Australia being terra nullius at the time of British settlement was a legal nonsense; that while English common law was introduced with settlement, it was possible that certain prior existing native laws survived; and that native land title continued after settlement. It was then argued that two features of Mabo (No 2) paved the way for recognition of native criminal jurisdiction:

The first is the High Court’s acknowledgment that the Aboriginal communities had and continue to possess sophisticated native laws ... Secondly, the High Court was prepared to recognise the co-existence of native laws with the general laws of the nation ... Accordingly, legislation which recognises a form of native criminal jurisdiction co-existing with the general criminal jurisdiction would be in step with this Mabo ruling.⁸⁰

[e]ven if it be assumed that customary criminal law of Aboriginal people survived British settlement, it was extinguished by the passage of criminal statutes of general application. In Mabo (No 2), the court held that there was no inconsistency between native title being held by people of Aboriginal descent and the underlying radical title being vested in the Crown. There is no analogy with the criminal law.⁸²

3.63 The following discussion examines whether courts have an existing power to recognise Aboriginal customary law within the general criminal law.

RECOGNITION OF CUSTOMARY LAW ON THE BASIS OF THE OFFENDER’S CULTURAL BACKGROUND

3.64 While most Australian jurisdictions give legislative guidance as to the factors which should be taken into account on sentence,⁸³ only the Crimes Act 1914 (Cth)⁸⁴ and the Crimes Act 1900 (ACT)⁸⁵ and some juvenile justice legislation⁸⁶ specifically refer to the cultural background of the offender as a relevant factor. New South Wales sentencing legislation contains no qualitative principles to guide sentencing. In New South Wales, it is largely the common law which has developed principles and factors to be taken into account by the sentencing court. It is, therefore, the common law which must be examined for a basis on which to recognise Aboriginal customary law.

3.65 One of the leading cases in the area of sentencing principles, R v Neal,⁸⁷ held that while the same sentencing principles are to be applied in every case, irrespective of the identity of a particular offender or his membership of an ethnic or racial group, the sentencing court is bound to take into account facts which exist only by reason of his membership of such a group.⁸⁸ Similar views have been expressed, and developed, in a number of other cases, notably, R v Fernando.⁸⁹ Principles applying to the sentencing of Aboriginal offenders are discussed in detail in Chapter 2.

3.66 The courts have frequently exercised judicial discretion to make allowances in sentencing on the basis that the concurrent operation of Aboriginal customary law is relevant. The ALRC Report reviews in detail some of the leading criminal cases, in the decade 1976-1986, in which Aboriginal customary law was an issue,⁹⁰ including R v Mamarika,⁹¹ R v Sydney Williams,⁹² R v Davey,⁹³ R v Jadurin⁹⁴ and R v Jungala.⁹⁵ As well, the ALRC prepared a Research Paper summarising nearly 50 such cases, all but one decided in the period 1974-1982.⁹⁶ The decisions examined below are those which have been handed down since 1986.

Precedents for the exercise of judicial discretion

R v Wilson Jagamara Walker⁹⁷

3.67 The defendant was convicted of manslaughter and sentenced to three years imprisonment. The sentence was suspended on condition that he enter into a bond to be of good behaviour for two years and return to live in a particular Aboriginal community. In determining the appropriate sentence, the Chief Justice of the Northern Territory took into account that the defendant would face traditional punishment, probably by being speared in each leg. However, the Chief Justice also required that the Director of Correctional Services report back to the court within six months whether the payback had occurred, as well as details of what had taken place. Imposing this condition went further than merely taking into account the possibility of customary punishment.

3.68 The observation has been made that the ALRC’s recommendations on recognising customary law would not have supported the approach taken in Wilson Jagamara Walker, in particular the requirement to report back:

The danger of such a condition is that it interferes with the operation of customary law and the need for Aboriginal people to maintain control over their law. It may have the effect of forcing a spearing to occur in a contrived way in order for a Report to be written for the Court. It should be sufficient for the Court to take into account that traditional punishment will or may occur but allow this to be worked through by Aboriginal communities rather than the Court seeking to intervene in this way. The resolution of the conflict between the families involved in the Walker case may require complex negotiation and exchanges of obligations – it must be done by the Aboriginal parties.⁹⁸

3.69 The defendant, who had pleaded guilty to two charges of manslaughter and other offences, had consented to receive a “payback” penalty (by spearing in the leg) from his community upon his release from gaol. The trial judge sentenced him to a total effective head sentence of ten years, with a direction that he be released on a three-year good behaviour bond after serving four years. By setting a fixed release date, his Honour was giving special recognition to the traditional punishment. In the appellate court, Chief Justice Asche observed, without criticism, that the trial judge:

was influenced by the consideration that the infliction of payback would be of benefit to a community which possessed a philosophy that, once inflicted, payback wiped out all feuds arising from the defendant’s actions. Hence, his Honour’s remark that the community “may put the whole episode behind them and get on with the more positive aspects of their lives”. His Honour was careful to say that the circumstances were such that the court did not condone payback but recognised it as inevitable.¹⁰⁰

R v Miyatatawuy¹⁰²

3.71 In this case, the defendant had been punished under Aboriginal customary laws prior to coming before the court for sentencing. It was held that the resolution or settlement of matters within the relevant Aboriginal community and the integral rehabilitation of the offender are significant circumstances to be considered on sentence. The court found that, although the High Court has held that Aboriginal customary law was extinguished by the passage of criminal statutes of general application, the facts and circumstances arising from the defendant’s Aboriginality, namely the operation within her Aboriginal community of practices affecting her, remain relevant. The courts are entitled to pay regard to those matters as relevant circumstances in the sentencing process. The court observed that the wishes of the victim of the offence in relation to the sentencing of the offender are not usually relevant, and that the wishes of the relevant community, of which the victim was a leading member, may not be permitted to override the discharge of the judge’s duty. Nonetheless, they may be taken into account on mitigation.

R v Shannon¹⁰³

3.72 This case illustrates how evidence of traditional customs and beliefs may be relevant to an explanation of the defendant’s conduct, mitigating the seriousness of the offence. In that respect, it is not strictly a precedent for the recognition of Aboriginal customary law, in so far as that term is understood to mean something akin to “a system of rules of conduct which is felt as obligatory upon them by the members of a definable group of people”.¹⁰⁴ The defendant lit a number of fires believing this would frighten evil spirits away, shortly after he had been threatened by his father with ill fortune or punishment at the hands of tribal kadaitcha men. The mention of kadaitcha tends to strike fear into the hearts of many Aboriginal people.¹⁰⁵ In fact, Justice Zelling observed that a threat of use of kadaitcha would produce an immediate superstitious panic in the mind of the person threatened. The defendant “was put literally in fear for his life”. When police officers attempted to apprehend the defendant, he assaulted them. The appellate court (hearing an appeal on severity of sentence) accepted that the defendant’s state of mind had been affected, to some extent, by the threat of the “kadaitcha” men and that this mitigated the seriousness of the offence. The trial judge had failed to make allowance for “the mitigating circumstances (particularly those arising from the culture of the appellant) which clearly existed”.¹⁰⁶

Munungurr v The Queen¹⁰⁷

3.73 The trial judge admitted into evidence a letter signed by the Chairman and Town Clerk of the Yirrkala Dhanbul Community Association stating the effect of the defendant’s imprisonment on the community and its desire that he be returned to the community to be dealt with in the traditional manner. However, he gave no weight to the letter in his sentencing decision. On appeal from severity of sentence, the court held that, despite the informality of the evidence, the trial judge should not have rejected matters contained in the letter put by way of mitigation. In particular, the trial judge failed to consider the nature of the reconciliation ceremony referred to in the letter; the effect of imprisonment on the offender’s family and his people generally; the community’s wish that he be dealt with in the traditional way; and what traditional punishment, if any, the community proposed. The court held that the views, wishes and needs of the offender’s community are relevant considerations, but will not prevail over what is a proper sentence. The court allowed the appeal and ordered that the defendant be released on a bond after three months on the condition that he attend at a tribal reconciliation for the purposes of sealing the peace between the two clans involved, as was prescribed by the relevant Aboriginal custom.

R v Bara Bara¹⁰⁸

3.74 This is a case where customary law was taken into account in a sentencing hearing, but not in relation to the bearing it would have on the appropriate sentence. The defendant applied for an order suppressing the name of the deceased on the basis that it was extremely offensive to most Northern Territory Aboriginal people, and contrary to most tribal customs, to speak of a dead man by his name. The court granted the application, holding that publication of the deceased’s name would be “likely to offend against public decency” within the meaning of section 57(1)(a) of the Evidence Act 1939 (NT).

R v Burton¹⁰⁹

3.75 In this case, the defendant was stabbed in the course of a dispute. He in turn stabbed the deceased in accordance with what was said to be the Anungu way of not hitting and running but exchanging one stab for another. In fact, the deceased had presented his leg to Burton to be stabbed. Burton failed to execute the stabbing in a way to cause minimal injury and subsequently received traditional punishment for this transgression. When sentencing, Justice Duggan took into account that the defendant had already received the traditional punishment. As well, the Director of Public Prosecutions considered the punishment under customary law in deciding to charge Burton with manslaughter rather than murder.

R v Rogers and Murray¹¹⁰

3.76 Although this case did not involve a consideration of Aboriginal customary law, it elucidates the court’s general power to take into account mitigating factors arising from the offender’s cultural background, which can then be applied to recognising Aboriginal customary law. Chief Justice Malcolm held:

Race itself is not a permissible ground of discrimination in the sentencing process. If there were a different approach to the sentencing of Aborigines based only upon their Aboriginal background this would be contrary to s 9 of the Racial Discrimination Act 1975 (Cth) ... It follows from this that the sentencing principles to be applied in relation to a sexual offence committed by an Aborigine must be the same as those in any other case. It is apparent, however, that there may well be particular matters which the court must take into account, in applying those principles, which are mitigating factors applicable to the particular offender. These include social, economic and other disadvantages which may be associated with or related to a particular offender’s membership of the Aboriginal race.¹¹¹

3.77 In that case, Chief Justice Malcolm quoted with approval a passage from a decision of Justice Muirhead in R v Iginiwuni:¹¹³

Both Aboriginal and white people are generally speaking subject to the same laws. For years, however, the judges of this Court in dealing with Aborigines have endeavoured to make allowance for ethnic, environmental and cultural matters ...¹¹⁴

CONCLUSION

3.79 There is ample common law precedent for judicial discretion to recognise Aboriginal customary law. Why, therefore, should an obligation to recognise Aboriginal customary law in the sentencing process be enforced by statute?

3.80 The Commission finds that the arguments in support of recognition of Aboriginal customary law are powerful, and outweigh the arguments against statutory recognition. A basic tenet of the Australian criminal justice system is that justice must be done, and be seen to be done. Failing to recognise the role played by Aboriginal customary law in a particular case could well lead to injustice. This reason alone may well justify legislative endorsement of the common law discretion. However, the totality of reasons for recognising Aboriginal customary law are too important to allow recognition to remain dependent upon the approaches and attitudes of individual judges and magistrates. The results of the Commission’s survey of judges and magistrates show that a number of those surveyed do not believe that Aboriginal customary law should be recognised in sentencing in New South Wales. A legislative requirement of recognition, where relevant, would ensure that, where appropriate, Aboriginal customary law is always considered; and would thus promote consistency and clarity in the law and its application to Aboriginal people.

3.81 A recommendation that recognition of Aboriginal customary law be contained in legislation is not inconsistent with the Commission’s conclusion that general sentencing principles should not be so contained. The two cases can be distinguished.

3.82 On the one hand, appellate courts have established qualitative principles by which the type and length of sentence are governed: imprisonment must be a sentence of last resort;¹¹⁵ punishment must not exceed the gravity of the offence;¹¹⁶ there must be parity between co-offenders¹¹⁷ and between offenders generally;¹¹⁸ the total sentence imposed upon an offender must reflect the totality of the offending;¹¹⁹ the statutory maximum is to be reserved for the worst category of offence to which that maximum applies;¹²⁰ no-one should be punished for an offence of which he or she has not been convicted.¹²¹ These principles provide the framework for sentencing. The court’s objective is to adhere to these general sentencing principles.

3.83 On the other hand, the cases have established that courts have the discretion to take into account Aboriginal customary law as a mitigating factor. This is not a principle forming part of the sentencing framework. It is a matter purely of discretion. Furthermore, there is no obligation on the court to take Aboriginal customary law into account, even where it may be a relevant circumstance. This is an unsatisfactory position.

3.84 The ALRC Report questions whether any legislative provision which requires a court to take Aboriginal customary laws into account in sentencing could be regarded as fettering essential judicial discretions. It might be thought, for example, to create difficulties if, in a particular case, the court decided that this was not appropriate. However, the ALRC Report rightly points out that:

such a provision would only require that a judge consider the relevance of Aboriginal customary laws in cases where, on the evidence, these have been an element in the offence. It would not require a judge automatically to give a lesser sentence, but it would be a direction from the legislature that Aboriginal customary laws are an element to be taken into account in sentencing.¹²²

3.86 Legislating for recognition of Aboriginal customary law has potential symbolic significance for New South Wales’ credibility in the reconciliation process; for redress of the woeful consequences of Aboriginal contact with the criminal justice system, and the incidence of incarceration and deaths in custody; and for according respect to Aboriginal people, and real value to Aboriginal culture.

3.87 Recognition of Aboriginal customary law, while not amounting to Aboriginal sovereignty over criminal justice, would also be in line with the emerging international trend towards providing Indigenous peoples with the right to self-determination or self-management.

3.88 In considering whether there should be legislative endorsement of recognition, the issue arises as to whether this should be general or specific. The ALRC Report extracts from judicial precedents a number of general propositions as to how, and to what extent, Aboriginal customary law should be taken into account.¹²³ These propositions have as their foundation the axiom that a distinction must be made between taking the operation of customary laws into account on sentencing and seeking to incorporate aspects of customary law in a sentencing order. The latter is not considered appropriate and courts should continue to maintain the distinction. However, while the Commission accepts the wisdom of the propositions in the ALRC Report, it is not considered necessary to enunciate them in legislation. To do so would, in the Commission’s view, inappropriately fetter judicial sentencing discretion. A general legislative requirement to recognise Aboriginal customary law, where relevant, achieves the objective.

3.89 The Commission has been guided by the terms of the ALRC Report¹²⁴ in making the following recommendation.

Recommendation 1

Where a person, who is, or was at a relevant time, a member of an Aboriginal community, is convicted of an offence, in determining the sentence, the court shall have regard to any evidence concerning the customary laws of that Aboriginal community, and the customary laws of any other Aboriginal community of which the victim was a member at a relevant time.

3.90 While there are difficulties in introducing evidence of Aboriginal customary laws into general sentencing proceedings, they can be overcome and do not justify a complete exclusion of such evidence from a consideration of appropriate criminal sanctions. Courts deal with difficult and uncertain evidentiary issues every day. Rather than exclude certain evidence, decisions are frequently made to admit material or testimony into evidence and then judge what weight ought to be given to it. Specifically in relation to information about the relevance of Aboriginal customary laws, individual judges and magistrates, seeing the importance of having regard to such evidence in the circumstances, have been creative in finding ways to admit it. For example, in Milirrpum v Nabalco Pty Ltd¹²⁵ the court admitted evidence of customary laws as reputation evidence.

3.91 In R v William Davey, Justice Muirhead observed:

The Court has for many years now considered it should, if practicable, inform itself of the attitude of the Aboriginal communities involved, not only on questions of payback and community attitudes to the crime, but at times to better inform itself as to the significance of words, gestures or situations which are otherwise incomprehensible.

The information may be made available to the court in a somewhat informal and hearsay style. This is unavoidable as it will often depend on a consultation with Aboriginal communities in remote areas.¹²⁶

[i]t is very unfortunate that the learned sentencing judge was not given a comprehensive view of the impact of such a threat on an Aborigine. The need for the help of trained persons such as anthropologists to be given to the court in such situations, is stressed in many recent publications on the topic: see, eg the [ALRC Report].¹²⁷

[i]t is important also to note that [the trial judge] had here the advantage of hearing expert and convincing evidence from a person fully conversant with the language and customs of the community concerned. Statements sometimes emanate from the bar table to the effect that “there will be payback”. Such statements are of little assistance if they are not accompanied by the sort of evidence which was before the learned trial judge. Payback is not a vendetta. There must be clear evidence of the difference.¹²⁸

But, if it is to be asserted that conduct of this sort should be seen as a reflection of the customary law of an Aboriginal community or tribal group, we are of the opinion that there should be evidence before the court to show that this was indeed the case and that what happened was not simply the angry reaction of friends of the deceased, particularly when the killing of the deceased and the injuring of the appellant occurred at a time when some, if not all, of those participating had been drinking.¹²⁹

I am aware that such help has its limitations … but courts have to accept those limitations in relation to the receipt of expert evidence in many areas of the law. In some cases, in order to do justice, it may be necessary to accord standing to the Aboriginal community to bring forward its collective point of view …¹³²

3.97 The admissibility of expert evidence depends on proper disclosure and evidence of the factual basis of the opinion (the “basis rule”).¹³⁴ The ALRC Report concluded that the “basis rule” gives rise to potential difficulties in the proof of Aboriginal customary laws and that this rule should not be used to exclude evidence of Aboriginal customary laws, but should be applied only in relation to the weight given to the evidence:

A rule which required anthropologists to prove the basis of any opinion would create practical difficulties in many cases. In addition, opinions may be based on material that cannot or will not be formally admitted, eg because of questions of secrecy.¹³⁵

3.99 Although hearsay evidence is normally inadmissible,¹³⁹ if the factual basis of the expert opinion is hearsay, this evidence would be admissible under an exception to the hearsay rule, because it would not be adduced to prove the existence of the facts asserted by the representations, but would be adduced to explain the assumptions on which an expert opinion is based.¹⁴⁰ Furthermore, the effect of s 60 of the Evidence Act (NSW), is that once the hearsay evidence is admitted to explain the assumptions on which an expert opinion is based, provided it is first-hand hearsay,¹⁴¹ it may then also be used to prove the existence of the asserted facts.¹⁴²

3.100 A further exception to the hearsay rule is contained in s 74 of the Evidence Act (NSW) which provides that the rule “does not apply to evidence of reputation concerning the existence, nature or extent of a public or general right”. If it can be successfully argued that customary law embodies general rights, then it is possible that some evidence relating to customary law could be admitted under this section.

3.101 To the extent that evidence of an opinion concerning Aboriginal customary laws may be about a fact in issue or an ultimate issue, or a matter of common knowledge, this evidence, which may have been inadmissible under the common law, would be admissible pursuant to s 80 of the Evidence Act (NSW).

3.102 To overcome evidentiary obstacles and uncertainties, the ALRC Report recommended specifically providing in legislation that evidence of Aboriginal customary laws is not inadmissible by reason that it is hearsay or opinion evidence or that it relates to a fact in issue.¹⁴³ However, it is probable that this evidence would now be admissible under the Evidence Act (NSW). The Commission sees no need for legislative changes in this regard.

3.103 The ALRC Report also raised special difficulties surrounding the taking of Aboriginal evidence, separate from those arising from legal rules of evidence.¹⁴⁴ Chapter 7 of this Report examines the difficulties Aboriginal people experience as witnesses, including language barriers and unfamiliarity with the non-Aboriginal legal system and court proceedings. Difficulties relating specifically to the giving of evidence about Aboriginal customary laws arise from:

• whether a witness has authority to speak for the community, in the particular circumstances and on the matter in question, a notion of considerable importance in Aboriginal tradition;¹⁴⁵
• the fact that a witness may only have authority to speak on a given matter in conjunction with others who collectively have such authority;¹⁴⁶
• the fact that disclosure of some Aboriginal customary laws may be forbidden;¹⁴⁷
• unrestricted publication of material contained in an anthropologist’s report may breach customary laws and may also breach undertakings between the anthropologist and the Aboriginal community concerned;¹⁴⁸ and
• a witness’s evidence may disclose a past violation by that witness of a customary law, exposing him or her to shame or retaliation.¹⁴⁹

3.105 Where an Aboriginal person only has authority in the presence of others, the ALRC Report recommends that legislation dealing with proof of Aboriginal customary laws should empower courts to take group evidence. The ALRC Report acknowledges that the courts may already have this power, as an aspect of their inherent power to regulate their own procedure, and that there are precedents for its having been invoked.¹⁵⁰ However, the ALRC Report takes the view that legislative endorsement would encourage taking group evidence and would clarify whether such evidence can be permitted. The Commission is not convinced of the necessity for a legislative provision that courts may take group evidence. The Commission does, however, urge that courts use their inherent powers to adopt this course where necessary, to ensure that relevant information is before the court.

3.106 In Aboriginal culture, it is imperative that certain customary laws remain secret to certain individuals, or certain groups, or to one gender or the other; disclosure of secret information causes distress to Aboriginal communities and may attract penalties. Some who oppose recognising Aboriginal customary law have argued that recognition entails too great a problem in maintaining the obligatory secrecy.

3.107 Magistrate Hiskey has experienced difficulty arising from the secrecy attaching to certain customary laws. The defendant might have used words or phrases which ought not, under Aboriginal custom, be uttered in particular circumstances. What might appear to the court as an ordinary charge of using offensive language, may, to the Aboriginal community, be a grave breach of custom. A dilemma arises because traditional beliefs make repetition of such language inappropriate, but the gravity of the allegation must somehow be communicated to the court.¹⁵¹

3.108 The ALRC Report demonstrates that courts have inherent powers to receive secret information on a restricted basis, either in secret session, in the presence of members of only one sex, or to the judicial officer alone, or in camera and to make orders prohibiting publication of the information. Such measures have been successfully used in land claim hearings.¹⁵² A decision of the Full Court of the Federal Court ruled that it was within the court’s power to apply “gender restrictions” in court proceedings when Aboriginal people are required to give evidence about their rituals and customs.¹⁵³ While the ALRC Report recommends legislative confirmation that the courts’ discretion extends to evidence relating to Aboriginal customary laws, the Commission does not see the need for this. The necessary powers clearly exist and are being exercised without difficulty. They should continue to be exercised freely, as appropriate.

3.109 The ALRC Report examined the problem which may arise if communications between Aboriginal people and anthropologists, linguists and others working in Aboriginal communities are confidential and yet it is necessary, for example, to place the confidential information before the court in mitigation of sentence. If the offender wishes to produce confidential information in evidence it may be difficult for the Aboriginal community to oppose this on the basis that it is covered by a category of privilege. The ALRC Report does not recommend that a special category of privilege be created to cover confidential material within Aboriginal customary law. Rather, it recommends that the court exercise its general discretion to weigh the importance of the evidence and the nature of the proceedings against the damage to the Aboriginal community.¹⁵⁴

3.110 It is unclear whether the common law privilege against self-incrimination would extend to evidence which incriminated the witness under Aboriginal customary law. On this issue, the ALRC Report recommended that, while a complete privilege is not desirable, the courts should have the power to excuse a witness from answering a question which would tend to incriminate the witness under his or her customary laws.¹⁵⁵

3.111 Even allowing for flexibility in the laws of evidence and in the courts’ approach to taking evidence, Magistrate Lulham draws attention to some practical difficulties in obtaining authoritative evidence of Aboriginal customary laws. If, in order for the court to be informed of all the customary matters relevant to the particular case, it is necessary to call Aboriginal elders as witnesses, there may be obstacles to this course. Magistrate Lulham believes that most Aboriginal elders would be quite elderly and that many would be suffering from ill health. He is of the view that it would be unfair to involve them in “difficult areas of administration of justice”.¹⁵⁶ Moreover, he has found “a general reluctance amongst Aboriginal persons to become involved in the administration of justice”. He “understand[s] from other Magistrates that they have encountered the same situation”.¹⁵⁷

VIOLENCE AGAINST WOMEN

3.112 Any proposal to recognise Aboriginal customary law in sentencing must carry with it a caution to distinguish legitimate and authentic customary law from false assumptions and misconceptions. Specifically, there is a danger that the judiciary, and others involved in the sentencing process, will accept the claim or myth that sexual and domestic violence against women is sanctioned by Aboriginal culture, or, at least, not regarded as seriously as it is in non-Aboriginal culture. This premise must be categorically repudiated.

3.113 In a number of cases, Aboriginal custom at least, if not customary law, has been relied on to legitimise domestic and sexual violence against Aboriginal women, or to minimise the seriousness of the offence or the suffering of the victims.¹⁵⁸ Atkinson refers to the trauma Aboriginal women experience in bringing an action for rape and relates that:

[i]f our women persist, and get to court, they have to listen to white male lawyers present arguments that suggest a “rough up” is part of Aboriginal love making … or, that rape is not as hurtful nor considered as serious by Aboriginal women as it is for white women. All too often white male racist and sexist attitudes are contained in the arguments presented, and accepted in court.¹⁵⁹

Ill treatment of women and assaults upon women will not be tolerated by the law and I know of no Aboriginal custom which would refute that as a philosophy.¹⁶⁰

3.115 The Ministry for the Status and Advancement of Women (“MSAW”) conducted a review of Aboriginal women’s access to, and interaction with, legal services, a project arising out of consultations with Aboriginal women undertaken as part of the New South Wales Domestic Violence Strategic Plan.¹⁶¹ Aboriginal women reported in those consultations that “they felt they were often confronted with hostile or ill-informed attitudes of members of the bench who were overseeing trials involving allegations of violence against Aboriginal women”.¹⁶² MSAW recommended that the Office of the Director of Public Prosecutions develop a network of female experts in the field of Aboriginal culture who can be called to dispute claims that physical or sexual violence is “normal” or “ordinary part” of Aboriginal culture.¹⁶³ It also recommended that the DPP conduct Aboriginal Cultural workshops, facilitated by Aboriginal women, to encourage better understanding of Aboriginal culture by the judiciary.¹⁶⁴

1. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) (“ALRC 31”).

2. ALRC 31, Terms of Reference at xxxv.

3. See Editorial (1986) 60 ALJ 655-656; S Poulter, “Review Essay: Cultural Pluralism in Australia” (1988) 2 International Journal of Law and Family 127; C McLachlan, “The Recognition of Aboriginal Customary Law: Pluralism Beyond the Colonial Paradigm – A Review Article” (1988) 37 ICLQ 368; R Chisholm, “Aboriginal Law in Australia: The Law Reform Commission’s Proposals for Recognition” (1988) 10 University of Hawaii Law Review 47.

4. Australia, Royal Commission into Aboriginal Deaths in Custody, National Report (Five Volumes) (AGPS, Canberra, 1991-92) vol 2 at 80, vol 3 at 75, vol 4 at 99-102, especially at 102.

5. C Charles, “Sentencing Aboriginal People in South Australia” (1991) 13 Adelaide Law Review 90; G Cowlishaw, “Colour, Culture and the Aboriginalist” (1987) 22 Man 221; G Cowlishaw, “Aborigines and Anthropologists” (1986) 1 Australian Aboriginal Studies 2.

6. C Charles, “Sentencing Aboriginal People in South Australia” (1991) 13 Adelaide Law Review 90 at 92.

7. Aboriginal Justice Advisory Council, Consultation (11 January 1999).

8. ALRC 31 at para 38.

9. The Covenant entered into force on 23 March 1976.

10. The Covenant entered into force on 3 January 1976.

11. Article 1 in each Covenant.

12. Draft Declaration as agreed upon by the members of the Working Group on Indigenous Populations at its Eleventh Session, Article 3.

13. Draft Declaration Article 33.

14. ALRC 31 at para 5.

15. ALRC 31 at para 5.

16. Even the term “Aboriginal customary law” is not accepted by all. In consultations between the Council for Aboriginal Reconciliation, ATSIC and Aboriginal and Torres Strait Islander peoples held in July-August 1994 and October-November 1994, the Queensland Metropolitan Zone and the Queensland North Zone submitted that the correct term is Aboriginal common law; the Victoria Zone submitted that the correct term is “Aboriginal lore”; and the Tasmania Zone submitted that the correct term is “Aboriginal community law”: Australia, Council for Aboriginal Reconciliation and ATSIC, Towards Social Justice Compilation Report of Consultations (AGPS, Canberra, 1995).

17. R Langford Ginibi, “Aboriginal Traditional and Customary Laws” (1994) 1 Law/Text/Culture 8 at 8 (“Langford Ginibi (1994)”).

18. Langford Ginibi (1994) at 8-9.

19. E Eggleston, Fear, Favour or Affection: Aborigines and the Criminal Law in Victoria, South Australia and Western Australia (Australian National University Press, Canberra, 1976) at 278.

20. (1971) 17 FLR 141.

21. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 266.

22. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 267.

23. K Maddock, “Aboriginal Customary Law” in P Hanks and B Keon-Cohen (eds), Aborigines and the Law (Allen and Unwin, Sydney, 1984) 212 at 230-232.

24. J Atkinson, “A Nation is Not Conquered” (1996) 3(80) Aboriginal Law Bulletin 4 at 4.

25. Atkinson at 4.

26. P Hennessy, “The Recognition of Aboriginal Customary Laws” paper presented at the NSW Young Lawyers Seminar on Native Title and Customary Law (Sydney, 21 September 1994) (“Hennessy (1994)”) at 4.

27. Langford Ginibi (1994) at 8-9.

28. Langford Ginibi (1994) at 11.

29. Hennessy (1994) at 4.

30. Langford Ginibi (1994) at 8-9, 11.

31. ALRC, Aboriginal Customary Law – The Criminal Law, Evidence and Procedure (Discussion Paper 20, 1984) at 10-11.

32. (1992) 175 CLR 1 at 110.

33. ALRC 31 at Chapter 4.

34. ALRC 31 at para 37. In 1837 a Select Committee of the House of Commons resolved that Aboriginal people should be subject to British law, although some discretions should be exercised which would allow the reduction of penalties: Great Britain, Report of the House of Commons Select Committee on Aborigines (British Settlements) (Parliamentary Paper 425, 1837). In 1840, the British Government sent a dispatch to all Governors in Australia and New Zealand expressing the view that English law should entirely supersede Aboriginal customary laws: Australia, Historical Records of Australia, Series One, Governor’s Dispatches to and from England (Library Committee of the Commonwealth Parliament, Sydney, 1924) vol 21, 35. However, contrary to this directive, Aboriginal customary laws were not abolished.

35. J W Bleakley, The Aboriginals and Half Castes of Central Australia and North Australia: Report to the Parliament of Australia (Parliamentary Paper 21, Government Printer, Melbourne, 1928); Western Australia, Report of the Royal Commissioner Appointed to Investigate, Report and Advise Upon Matters in Relation to the Condition and Treatment of Aborigines (HD Mosely, Royal Commissioner, Parliamentary Paper 2, Government Printer, Perth, 1935).

36. Native Administration Ordinance 1940 (NT); Native Administration Act 1936 (WA); Aboriginal Preservation and Protection Act 1939 (Qld).

37. Hennessy (1994).

38. ALRC 31 at para 517.

39. Recommendation 219. However, the Northern Territory has prepared a Draft Constitution providing for recognition of Aboriginal customary law as a “source of law in the Northern Territory”: Northern Territory, Legislative Assembly Sessional Committee on Constitutional Development, Final Draft Northern Territory Constitution (December 1996) at para 2.1.1.

40. See generally the cases in ALRC 31 at Chapter 21, and J Crawford and P Hennessy, Cases on Traditional Punishments and Sentencing (ALRC Research Paper 6A, 1982).

41. R v Jagamara (NT Supreme Court, Gallop J, 18 November 1980, unreported); Shannon v The Queen (1991) 56 A Crim R 56; R v Goldsmith (SA CCA, SCCRM 379 of 1995, 27 October 1995, unreported).

42. In R v Burton (SA Supreme Court, No 81 of 1994, Duggan J, 18 July 1994, unreported), the Director of Public Prosecutions took into account both the customary aspects surrounding the commission of the offence, and the fact that the accused received traditional punishment from his community, in deciding to charge the accused with manslaughter rather than murder.

43. For example R v Jagamara (NT Supreme Court, Gallop J, 18 November 1980, unreported); see ALRC 31, vol 1 at para 514.

44. Yolngu leaders in Yirrkala and Millingimbi, in North-East Arnhem Land, Northern Territory, submit that actions and words which are highly offensive in Yolngu society and likely to incur harsh penalties according to customary law are not always given appropriate consideration in Australian courts. They describe their frustration at being no longer able to impose severe traditional sanctions for serious offences while at the same time these offences were, in their eyes, trivialised by the courts. They want to be allowed to explain these issues to the courts so that sanctions they regard as appropriate will be applied: S Thomas, N Williams and K Coulehan, “Across Two Laws – Cross-Cultural Awareness in the Northern Territory” (1996) 31(11) Australian Lawyer 4 at 5.

45. ALRC 31, Summary Report at para 26.

46. ALRC 31 at Chapter 9.

47. ALRC 31 at para 163.

48. ALRC 31 at para 163.

49. ALRC 31, Summary Report at para 37.

50. R Sarre, “Aboriginal Customary Law” (1995) 7 Legaldate 3 at 4.

51. Sarre at 5.

52. W Matthews, Consultation (20 October 1997).

53. Australia, Council for Aboriginal Reconciliation, “Going Forward: Social Justice for the First Australians” Submission to the Commonwealth Government (1995) at 82.

54. J Braithwaite, Crime, Shame and Reintegration (Cambridge University Press, Melbourne, 1989) at 1. See also P de Graaff, “The Poverty of Punishment” (1993) 5(1) Current Issues in Criminal Justice 13.

55. G Bird, The “Civilising Mission”: Race and the Construction of Crime (Monash University, Melbourne, 1987) at 41.

56. Recommendation 219, vol 4 at para 29.2.54.

57. Recommendation 104, vol 3 at para 22.4.51.

58. G Hiskey SM, Submission. Magistrate Hiskey was the North-West Circuit Magistrate in South Australia, taking in the Pitjantjatjara Lands, from 1987 until 1992.

59. B Lulham SM, Submission. Magistrate Lulham was the Magistrate for the Moree Circuit from 1993 until 1996. He is presently the Magistrate for the Broken Hill Circuit.

60. B Lulham SM, Submission at 3.

61. B Lulham SM, Submission at 4.

62. B Lulham SM, Submission at 5. R A Brown LCM is now the Magistrate for the Moree Circuit He is of the view that “the existence of Aboriginal customary law may be arguable in tribal populations”, but he is not aware of its ever being relied upon in his circuit (of Moree) to settle disputes between Aboriginal people, or for any other purpose: Submission at 1.

63. B Lulham SM, Submission at 5.

64. N R Cowdery QC, DPP, Submission at 4.

65. N R Cowdery QC, DPP, Submission at 5.

66. N R Cowdery QC, DPP, Submission at 5.

67. N R Cowdery QC, DPP, Submission at 5.

68. Confidential, Submission.

69. Numbers of judges in favour of recognition of Aboriginal customary law: three out of four responding judges sitting exclusively in country areas; one out of three responding judges sitting exclusively in metropolitan areas; eight out of 20 responding judges sitting in both country and metropolitan areas (although three of the judges who completed the questionnaire were unable to comment, one did not respond to this particular question and one commented that if customary law was applicable in New South Wales, he or she would support its recognition).

70. Numbers of magistrates in favour of recognition of Aboriginal customary law: 10 out of 20 responding magistrates sitting exclusively in country areas (5 of whom supported legislative recognition); 4 out of 10 responding magistrates sitting exclusively in metropolitan areas (3 of whom supported legislative recognition); 13 out of 30 responding magistrates sitting in both country and metropolitan areas (9 of whom supported legislative recognition).

71. Customary law had been raised in the court of 1 judge at the time of trial and in the courts of 4 judges at the time of sentencing; and in the courts of 7 magistrates at the time of trial and in the courts of 19 magistrates at the time of sentencing.

72. ALRC 31 at para 516.

73. During the consultation process for the preparation of one of its reports, the Council for Aboriginal Reconciliation found widespread support “for the concept of according appropriate recognition and status for customary law within the present legal framework of the Commonwealth, the States and the Territories”: Australia, Council for Aboriginal Reconciliation, “Going Forward: Social Justice for the First Australians” at 82. The Council recommended that the Commonwealth draft legislation implementing recognition of customary law, for consideration by Aboriginal people and the wider Australian community: see Recommendations 59 and 60. The Australian Reconciliation Convention of 1997 “supports the recognition, including Constitutional recognition, and application of Aboriginal and Torres Strait Islander customary law and traditions within Australian written statutes and common law, and in court procedures”: Australia, Council for Aboriginal Reconciliation, Interim Report: Seminar Outcomes presented at Australian Reconciliation Convention (May 1997, Melbourne).

74. NSW, Legislative Council Standing Committee on Social Issues, Aboriginal Representation in Parliament (Issues Paper No 3, April 1997).

75. The Standing Committee noted that “amendment of the NSW and Australian Constitution to recognise Aboriginal custom and law” was an option to enhance representation for Aboriginal people: NSW, Legislative Council Standing Committee on Social Issues, Enhancing Aboriginal Political Representation (Report No 18, November 1998) at para 8.8.

76. ALRC 31 at para 516.

77. ALRC 31 at para 516.

78. ALRC 31 at para 504.

79. (1992) 175 CLR 1.

80. S Yeo, “Native Criminal Jurisdiction After Mabo” (1994) 6 Current Issues in Criminal Justice 1 at 23.

81. (1994) 182 CLR 45. Walker v New South Wales was referred to in Wik Peoples v Queensland (1996) 187 CLR 1 and considered in R v Miyatatawuy (1996) 87 A Crim R 574 and Bulun Bulun v R & T Textiles Pty Ltd (1998) 157 ALR 193. It was followed in DPP Reference (No 1 of 1999) (1999) 128 NTR 1. It was distinguished in R v Warren (1996) 88 A Crim R 78.

82. (1994) 182 CLR 45 at 50.

83. Crimes Act 1914 (Cth) s 16A; Criminal Law (Sentencing Act) 1988 (SA) s 10; Sentencing Act 1991 (Vic) s 5(2); Penalties and Sentences Act 1992 (Qld) s 9(2); Crimes Act 1900 (ACT) s 429A; Sentencing Act 1995 (NT) s 5(2). Compare Sentencing Act 1995 (WA) s 6-8 which sets out sentencing principles without listing specific factors to be taken into account.

84. Section 16A.

85. Section 429A(1)(k).

86. Young Offenders Act 1993 (SA) s 3(3)(e); Young Offenders Act 1994 (WA) s 46(2)(c).

87. (1982) 149 CLR 305.

88. R v Neal (1982) 7 A Crim R 129 at 326 (Brennan J).

89. R v Fernando (1992) 76 A Crim R 58 at 62-63; Jabaltjari v Hammersley (1977) 15 ALR 94 at 98 (Muirhead J).

90. ALRC 31, Chapter 21 and J Crawford and P Hennessy, Cases on Traditional Punishments and Sentencing.

91. (NT, Supreme Court, No 293 of 1981, Muirhead J, 22 December 1981, unreported). The defendant killed his brother and was speared by his other three brothers as “payback”. The defendant’s plea of manslaughter was accepted by the Crown on the grounds of provocation. The defendant’s three brothers were charged with causing grievous bodily harm. The issue arose before the court as to the extent to which traditional payback should be taken into account by the court in determining sentence. The defendant’s community had written to the court proposing that the defendant not be imprisoned but be banished from his community for three years. The court sentenced the defendant to seven years and six months imprisonment. On appeal, the Federal Court did not vary the length of the sentence but suspended it on condition that the defendant be of good behaviour for four years and not return to his community for at least three years. Two of the brothers charged with spearing the defendant were given suspended sentences, and the other was acquitted.

92. (SA, Supreme Court, Wells J, 14 May 1976, unreported); reported on a different point in (1976) 14 SASR 1. The defendant was convicted of manslaughter of an Aboriginal woman and given a two year suspended sentence on condition that he submit himself to the Tribal elders to be ruled and governed by them for one year and to obey their lawful directions.

93. (1980) 50 FLR 57.

94. (1982) 7 A Crim R 182.

95. (NT, Supreme Court, No 97 of 1977, Muirhead J, 8 February 1978, unreported). The defendant’s family had already paid a penalty for his offence.

96. ALRC Research Paper 6A.

97. [1994] NTSC 79.

98. Hennessy (1994) at 8.

99. (1992) 59 A Crim R 227.

100. (1992) 59 A Crim R 227 at 228.

101. (1992) 59 A Crim R 227 at 237.

102. (1996) 87 A Crim R 574. This case considers Walker v New South Wales (1994) 182 CLR 45 and applies R v Neal (1982) 7 A Crim R 129.

103. (1991) 57 SASR 15.

104. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 266.

105. Zelling AJ in R v Shannon (1991) 57 SASR 15 at 19 gives, in his Honour’s words, an oversimplified version of Aboriginal beliefs on this topic. Originally, the wearer of kadaitcha shoes – shoes made of emu feathers glued together with human blood – had a special role to play in judicial proceedings for murder. Later, kadaitcha was used for various forms of magical revenge among the Aboriginal people, not connected with judicial process. Later still, kadaitcha magic was used for baneful purposes by members of secret societies.

106. R v Shannon (1991) 57 SASR 15 at 17 (Olsson J).

107. (1994) 4 NTLR 63.

108. (1992) 87 NTR 1.

109. (SA, Supreme Court, No 81 of 1994, Duggan J, 18 July 1994, unreported). This case is discussed in B Debelle, “Aboriginal Customary Law and the Common Law” in E Johnston, M Hinton and D Rigney (eds), Indigenous Australians and the Law (Cavendish Publishing, Sydney, 1997).

110. (1989) 44 A Crim R 301.

111. R v Rogers and Murray (1989) 44 A Crim R 301 at 307. See also R v Gibuma (1991) 54 A Crim R 347: “[I]t is neither colour nor race that commonly forms a determinant or a factor in matters of sentencing ... It is the background, education, cultural outlook, and so on, of the particular individual involved” at 349 (McPherson SPJ).

112. (1990) 50 A Crim R 31.

113. (NT, CCA, No 6 of 1975, Muirhead J, 12 March 1975, unreported).

114. R v Juli (1990) 50 A Crim R 31 at 37.

115. Although, this principle has also received statutory recognition in New South Wales: Justices Act 1902 (NSW) s 80AB; Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1).

116. Veen v The Queen (Veen No 1) (1979) 143 CLR 458; Veen v The Queen (Veen No 2) (1988) 164 CLR 465.

117. Lowe v The Queen (1984) 154 CLR 606.

118. Bugmy v The Queen (1990) 169 CLR 525.

119. Mill v The Queen (1988) 166 CLR 59; R v Close (1992) 31 NSWLR 743.

120. R v Oliver (1980) 7 A Crim R 174.

121. De Simoni v The Queen (1981) 147 CLR 389.

122. ALRC 31 at para 517.

123. ALRC 31 at para 505-515.

124. ALRC 31 at para 517.

125. (1971) 17 FLR 141.

126. (1980) 2 A Crim R 254.

127. (1991) 56 A Crim R 57 at 61.

128. (1992) 59 A Crim R 227 at 228.

129. (1982) 42 ALR 94 at 97.

130. ALRC 31 at para 638-641.

131. See also G Eames, “Aboriginal Homicide: Customary Law Defences or Customary Lawyers’ Defences?” in H Strang and S A Gerull (eds), Homicide: Patterns, Prevention and Control (AIC Conference Proceedings No 17, Canberra, 1993) 149 at 162: If the courts are to have greater regard to the realities of Aboriginal society and to the opinions of Aboriginal people as to the appropriate disposition of homicide cases, then the first requirement will be that the law is made sufficiently flexible so as to be capable of receiving direct evidence on relevant matters.

132. (1991) 56 A Crim R 57 at 61.

133. ALRC 31 at para 628-632.

134. S Odgers, Uniform Evidence Law (4th edition, LBC Information Services, 2000) at para 79.6.

135. ALRC 31 at para 637.

136. Evidence Act 1995 (NSW) s 76.

137. Evidence Act 1995 (NSW) s 78.

138. The term “specialised knowledge” is not defined in the Evidence Act 1995 (NSW). “It is likely that Australian courts will interpret s 79 in such a way as to require expert testimony to meet a standard of evidentiary reliability and relevance to be admissible”: S Odgers, Uniform Evidence Law at para 79.3.

139. Evidence Act 1995 (NSW) s 59: “Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation”.

140. Evidence Act 1995 (NSW) s 60: “The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation”: see S Odgers, Uniform Evidence Law at para 79.6.

141. This limitation was imposed by the judgment of the High Court in Lee v The Queen (1998) 195 CLR 594: see S Odgers, Uniform Evidence Law at footnote 286.

142. S Odgers, Uniform Evidence Law at para 79.6.

143. ALRC 31 at para 637 and 642.

144. ALRC 31 at Chapter 25.

145. ALRC 31 at para 644-645.

146. ALRC 31 at para 646-648.

147. ALRC 31 at para 649-656.

148. ALRC 31 at para 657-661.

149. ALRC 31 at para 662-665.

150. See Police v Isobel Phillips (NT, Court of Summary Jurisdiction, No 1529-1530 of 1982, Murphy SM, 19 September 1983, unreported); Spika Trading Pty Ltd v Royal Insurance Australia Ltd (1985) 3 ANZ Ins Cas 60-663.

151. G Hiskey, “Justice in the North-West Lands: On Circuit in the Pitjantjatjara Lands” (1992) 14(9) Law Society Bulletin 18 at 20.

152. ALRC 31 at para 649-656.

153. Western Australia v Ward (1997) 145 ALR 512.

154. ALRC 31 at para 657-661.

155. ALRC 31 at para 662-665.

156. B Lulham SM, Submission at 7.

157. B Lulham SM, Submission at 8.

158. In R v Tjungarrayi (NT, Supreme Court, No 37 of 1991, Kearney J, 20 December 1991, unreported), a submission by counsel for the defendant asserted that rape was regarded differently, namely, less seriously, by the Aboriginal community. Kearney J commented on this submission as follows: “That may be so, and in my experience as a judge for the last nine years, I’m inclined to think that it might be so. But it might only be so because of the dominance of Aboriginal men as spokesmen for Aboriginal communities, and a different story might be depicted if Aboriginal women spoke more for their communities”. In R v Jampijinpa Pollard (NT, Supreme Court, No 28 of 1989, Rice J, 1 June 1989, unreported) counsel for the defendant submitted at the sentence hearing in mitigation as follows: “It is not fruitless to reflect upon Aboriginal custom where the infliction of physical violence on spouses, perhaps especially female spouses is indeed far more common and certainly to a certain extent, part of the culture” at 22.

159. J Atkinson, “Violence Against Aboriginal Women: Reconstitution of Community Law – The Way Forward” (1990) 2(46) Aboriginal Law Bulletin 6 at 6.

160. R v Long (NT, Supreme Court, No 6 of 1989, Asche CJ, 8 February 1989, unreported) at 19. See also R v Tilmouth (NT, Supreme Court, No 45 of 1989, Kearney J, 18 July 1990, unreported).

161. NSW, Ministry for the Status and Advancement of Women, Report – Aboriginal Women and the Law (Dubay Jahli) (Report to New South Wales Parliament, 1994) (“Dubay Jahli Report”).

162. Dubay Jahli Report at 17.

163. Dubay Jahli Report Recommendation 7.1 at 17.