NCJ Number
95465
Date Published
1984
Length
26 pages
Annotation
Aboriginal customary law and traditions should be considered in determining the intent and reasonableness of acts proscribed in general Australian criminal law.
Abstract
In addition, evidence of Aboriginal customary law and traditions should be admissible where relevant to show the likely reaction of an Aboriginal person in the circumstances of the charged offense. Aboriginal law and traditions should also be taken into account both in determining degree of criminal responsibility and in sentencing, notwithstanding other factors such as intoxication. To reinforce these positions, legislation is needed. Aboriginal customary law and local community opinion should be treated as relevant in deciding whether to prosecute and in sentencing defendants conditioned by that customary law. If specific safeguards are provided, it is probably not necessary to enact a specific customary law defense which would exonerate defendants for actions they felt compelled to perform under their customary law. Additional tentative proposals of the Law Reform Commission are presented, together with brief discussions of the issues underlying each proposal. Footnotes are supplied.