Customary Law, Sentencing and the Limits of the State

Abstract

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

Keywords: customary law, payback, sentencing, Northern Territory