The Position Held by the Practice of Payback within the Australian Legal System - Research Paper Example

The recognition of Aboriginal customs which permit (payback) spearing as a from criminal punishment in indigenous communities has been controversial issue. Explain the current legal position with respect to payback punishment when sentencing Aboriginal offenders. Does this approach give sufficient recognition to Aboriginal criminal law within the Australia legal system? Discuss. It is essential that one develops his/her understanding of aboriginal customary law is in the context of social fact. The law is a law of the land, the law of survival and does not have its roots in the deep thoughts of legal philosophers, but in the manner of survival and a reflection of the innate tribal manner of thought and action. One of the best given examples of this law and how this is different from the law of the civilized world is that complete belief that Aboriginal law has in the system of retribution or payback-one examples would be that in vengeance for a death, the perpetrator should be speared1. One could find the theoretical roots of this law in the writings of the Cartesian legal theory which is deemed to be positivist by some. The idea here is that law is knowable as fact and is the product of clear reasoning from self-evident premises. it also has to be assumed that law a perspective of law that is based on the repudiation of the positivist or the Cartesian paradigm would then automatically challenge hypothesis backed by which one asserts social fact2. No law can have an existence in a vacuum. Most laws are to develop and hence to be understood in the context of the Foucault’s analytical challenge making it their base. It is also assumed that customary law is not a fact in terms of a rationalist vacuum but a result of developments in politics, history and epistemology related areas within which the law is operative. It could therefore be stated that customary law is the result of colonial processes as well as more subtle processes of symbolism, insight and explanation. The following essay in keeping with this context of Australian/western customary law would seek to analyze in some details the position held by the practice of payback within the Australian legal system. ‘Payback’ is in essence am Australian Aboriginal English term which is also known as Melanesia3. Where the civilized world is concerned, the concept of payback is understood to in terms of a violent form of retribution or the satisfaction of a vendetta4. The underlying feature of the payback system of punishment is the fulfillment of a grievance in the context of a wrong committed by someone such as a murder, or even wife-stealing is to be sought through a process of a violent spearing which might take the form of a corporal punishment and ordeal, or even killing. This kind of a notion which in the civilized world is perceived as being barbaric, a manifestation of vendetta and feudal conflicts have been noted by much of the non-Aboriginal observers during the greater parts of the European periods of colonization (from 1788). One has to remember here however that the despite the presumption of sovereignty that advances the recognition of a singular mold of law making, Australian criminal law is a direct manifestation of a scene which has given some recognition to Aboriginal law, through the state having to make concessions in terms of limits and reach while implementing the system of payback. The cases of payback being used a mode of punishment is recent and most of these are in essence a manifestation of the recognition of the fact an implementation of the system of payback as a method of instituting punishment would mean a resolution of community conflict and have a positive effect on the community in the overall term. Despite the fact that customary law has to manage within the confines of a nation is ruled by the aegis of white man's law, Aboriginal customary law has been able to retain credibility in the community. The Australian Law Reform Commission inquired into the question of recognition of Aboriginal customary law and issued a detailed report pertinent to the area in 1986. it is now well accepted that there is a general sense of acceptance of the Aboriginal legal framework in the mainstream of Australia customary law5. After considering all the submissions pout before them, the Commission recommended tat some areas of Aboriginal Law be recognized and that recognition should take place with the framework of Australian legal system. This means in essence that the courts and parliaments that already exist would apply Aboriginal Law rather than it being applied by the Aboriginal people themselves. The recognition of the Aboriginal law in the area of criminal law has at best been patchy and disorganized. Some of the major forms of recognition that have been provided are6: 1. Some Aborigines have been punished by tribal law rather than under the Australian legal system if their crime related to tribal custom. The case of R v Sydney Williams (1976) 14 SASR 1 is an example of this. Williams was punished by his tribe rather than by the court for his crime of murder because the murder related to religious matters. In New South Wales, historical and cultural factors to do with Aboriginal social position should be taken into account during sentencing. 2. Killing for tribal reasons be allowed as a partial defense to murder reducing it to manslaughter 3. there is some allowance for aboriginality in matters of bail, interrogation and sentencing.. The Aboriginal response to criminal behavior known in Aboriginal English as ‘payback’ is now recognized of official Australian criminal law. Criminal Law has accorded it a place in the series of existing alternative punishments and sanctions under the heading of ‘Aboriginal Punishment’, thus promoting it to the nature status of multicultural series7. The inclusion of an Aboriginal legal custom in what is deemed to be official law would seem to be a step in the direction of legal pluralism. On has to understand however that just as it is in the case of ‘traditional ownership’; or even ‘native title’, payback is a device that only serves to demonstrate the flexibility of the dominant legal system; it is an important contribution to the tendency that prevails in many modern legal systems towards more alternative forms of punishments and fewer unconditional imprisonments. In this case the judge with his device of translating the Aboriginal spear punishment into an alternative punishment aims also to safeguard him against a potential breach of the neb is in idem principles that prevent a double punishment for a committed crime. The irony in the context of the decision is that wit this translation, the judge has managed to unintentionally jeopardize the same principle that makes it unlawful for an offender to be tried twice for the same crime8. The Judge in the Walker case who thought that he was simply delegating the punishment was in fact committing the Aborigine to what in an Aboriginal context could in hindsight be accorded as a trial. The practice in Aboriginal law is for a deliberately prepared and properly organized duel to be held shortly after the incident has occurred. In it, the contending parties-the offended and a close relative of the victim, challenge each other with javelins or spears9. This is done in the presence of the Aboriginal community that witnesses the deeds of both parties and passes judgment. The outcome is determined by the course and protocol of the combat. The problem here is that by ordering that the court actually by ordering that the Aboriginal spearing happens, sets a precedent first and foremost that the Aboriginal law and its judgment would be valid only if and when the law of the court has given recognition to it in a specific case context sense of the term, by keeping the socio-cultural context of the crime in mind10. There have always been contentious issues that have surrounded the formal recognition and acceptance of the Aboriginal way o thinking and their laws and their integration within the mainstream of Australian customary law. The issues have encompasses the problems of the manner in which the law have operated historically or their contemporary manner of operation. Where Australia is concerned, one of the primary cases that recognized Aboriginal rights was the decisions in the Mabo case11, where Justices Brennan, Deane and Gaudron in particular recognized Aboriginal systems of law and custom. Jurgen Habermas described the idea of recognition for Australian aboriginal law and its integration within the mainstream Australian customary law in terms of the idea that12 “women, ethnic and cultural minorities, and nations and cultures defend themselves against oppression, marginalization, and disrespect and thereby struggle for the recognition of collective identities, whether in the context of a majority culture or within the community of peoples13 One has to understand the simple fact that there is a requirement for a recognition of the Aboriginal laws and their manner of perception along with their jurisdiction and the judicial notices of Aboriginal law, confirmation of the reality of Aboriginal legal systems where the execution of decisions along with the theories of punishment in criminal law in the context of the broader political notion of the giving acknowledgement to Aboriginal law and culture is to a large extent a method by which the government would be able to get over its failings in its capacity as a national integrationist government in general and the failure of the Australian legal system in particular in dealing with the specific issues plaguing aboriginal existence. All of these aspects are valuavble but the last perception, is in a sense a notion related to positivism in the sense of pre-colonial customary law. This has found acceptance catching the attention of the judiciary and is probably one of the more popular ideals adopted within the prview of customary law and its integration in legal and political discourse. In this conception, customary law is seen as: “a body of customs and traditions which regulate the various kinds of relationships between members of the community.” Attempts by the state to act as the principle machinery for the administration of such laws remains by far the most prevalent articulation of the idea of recognition of customary law, both internationally and in Australia. This conception is highly problematic. This paper will analyze this very nature of customary law working under the facts as have been provided in the judgment It is with this category that this paper is concerned. one of the better known instances where the Australian mainstream courts accepted the judgment as per customary law was the case of Wilson Jagamara Walker, where the issue was the murder of one man by another. The case was also the very first instance of the courts accepting Aboriginal punishment by the defendant’s own community as a substitute for a sentencing. The debate on the recognition of the customary law in Australia has been best handled by the 1986 report of the Australian Law Reform Commission which considered a number of situations in which human rights would be potentially compromised through recognition of this law. The possibility that Australian law would respect payback killing would at times seem like the most fundamental manner of flouting human rights. The report therefore paid partial deference to customary law wherein it stated that a partial customary law defense should be created similar to diminished responsibility reducing murder to man slaughter. The advances of this defense were that it would not involve condoning or endorsing payback killings or wounding, nor would it deprive victims of legal protection or the right of redress. Nevertheless, it represented direct acknowledgements of conflict. The discussion now invariably veers to a focus on the judgment in the case he Queen v Wilson Jagamara Walker14, where the Northern Territory Supreme Court affected the reduction of the punishment that it would have forced on the one convicted of manslaughter. The idea behind the reduction of the punishment was that the court expected that the person guilty would get customary punishment or the traditional 'payback' by being speared in the thigh as a punishment for the crime he committed The case was peculiar in as much as the defendant was a twenty three year old Aboriginal man living in the Yuendumu area his entire life. His social and educational background was that of unemployment with little to no formal education. He has also been kept away from his family and had a record of a previous conviction in an assault case. The case had its starting point in the instrinsic violence that characterized the two groups-namely the Frys and the Walkers. The defendant being a Walker, was entangled in a fight with the victim who was a ember of the former group. The fight played out such that the defendant killed the deceased in a drunken state trying to come to the aid of someone from his group, by stabbing the victim near the neck. The defendant was charged with murder and pleaded not guilty. After 4 days of evidence at the trial he pleaded guilty to manslaughter. The ruling: the judge sentenced the defendant to a sentence of 3 years imprisonment effective May 27, 1993 taking into account the 9 months he had already served in custody. The judge also suspended the sentence forthwith upon the entry by the defendant into a 2 year good behavior bond on his own recognizance in the sum of $1000. Finally the judge sentenced the convicted to return to his natives and be subjected subject a payback punishment under the supervision of the judicial personnel in-charge therewith, pointing out this action did not in any way mean that the court condoned the practice of payback15: “I make it clear, as has been made abundantly clear in the past, that although the court must take into account the fact that a person is to be punished in whatever manner it hears about, it does not condone it. It must be understood that just because a court is told and takes into account the fact that a person is to suffer punishment in another way, is not to indicate that it in any way condones the use of violence upon people at all; and, in particular, in the quite deliberate way in which pay-back is apparently administered16. Another well known case where the importance of the system of payback within the Australian legal system and the integration of the rule within the customary law is in evidence is the case of R v Minor, where the one on trail pleaded guilty to the charges of manslaughter and other offences. The defendant had also agreed to the receipt of a payback-spearing in the thigh-from his community, when he was released from prison. The defendant was convicted for a prison term of ten years, with a direction that he was to be released if he was found to be of good behavior after a period of four years. In the appellate court, Chief Justice Asche came up with the observation that the trail judge was influenced by the deliberation that the use of payback as a method of punishment would be beneficial to the community itself given the fact that much of the community’s beliefs with respect to retribution of crime was that once payback had been inflicted it would be an indicator of a fresh start in as much as payback would clean all past fights in the offender’s actions. In this light therefore, the judgment that had been prescribed in this regard would be placed in context in favor of the entire community being able to put the entire episode behind them and get on with the more positive aspects of their lives"17. The judge was also careful in stating that itr was the circumdstamces if the case more than anything else that made him execute the payback method,but this not in any sense mean that the court condoned payback-the idea in essence was that payback was recognized as being inevitable. Justice Mildren noted that "there is ample authority" for taking the possibility of future payback punishment into account in sentencing18 Issue of Recognition Recently the Law Reform Commission of Western Australia produced a 472 page Discussion Paper on Aboriginal Customary Law. The Commission’s ultimate view was that “the continuing existence and practice of Aboriginal customary laws in Western Australia should be recognized [with] such recognition to occur] within the existing framework of the Western Australian legal system”. One has to understand the fact that there are those for whom the only meaning of Aboriginal law and its forms of punishment is payback or the spearing. Interest in its gratifies non indigenous curiosity about the savage elements of Aboriginal culture and its performs the useful function of fixing Aboriginal law firmly within a framework of violence; in opposition to western law which is supposed to be based on principles of justice and the use of human confinement19. What has to be understood in this context is that the law of spearing or payback is seen by the Aborigines as being a solution to their problems-a path through which they can start afresh as opposed to long term confinement away from their duties as being extreme and violent. This is the very justification that has prompted the use of the method in some of the noted cases in contemporary times. The issue however is that due to prejudices, absence of information and the perception of all things Aboriginal as being savage there is a natural tendency to overlook the law20. Moreover, the test as has been arrived on the fulfillment of a few basic situations are mostly subjective and at the mercy of the judge in question given the fact that there is no tangible concrete recognition of the method as being the method of dealing with crime within the Aboriginal community. Moreover in recent times with the numbers of rising crime within the community, there have been calls for the implementation of the same treatment and the same law by the courts of Australia to all Australian citizens irrespective of their ethnic backgrounds21. In conclusion therefore e it might be stated that the Australian law in its present form at best comes up with a partial recognition of Aboriginal customary law. The tide in the past decade and a half seems to be in favor of a unified system of law and assessing legal wrongs, especially in the light of the rising problems of crime within the Aborigines. One could conclude by stating that the law does not have sufficient recognition yet, and the way things are going it would be tough to get formal and complete recognition anytime soon. Reference: Chesterman, J., (2005). Civil rights: how indigenous Australians won formal equality. University of Queensland Press. Pp241-242 Johnston, E. J., Hinston, M. G., and Rigney, D. (1997). Indigenous Australians and the law. Routledge. p92 Blagg, H. (2008) Crime, Aboriginality and the Decolonisation of Justice. The federation Press. Pp170-172 Mach G D, Ziegert K A and Tay A E, 2004, Law and Legal Culture in Comparative Perspective. Franz Steiner Verlag Publications, p356  Soeteman, A. (2004). Pluralism and law: proceedings of the 20th IVR World Congress. Franz Steiner Verlag. Pp92-93 Zdenkowski describes the acceptation of Aboriginal penalties as a weak version of cultural relativism (1994), p27. Note to Verdict Brassil, B., (2000). Excel preliminary legal studies. Pascal Press. Pp17-19 Finane, M. 2001. Payback’, Customary Law and Criminal Law in Colonised Australia. International Journal of the Sociology of Law. 24(4). Pp293-310 O’Connell, S., (2006). Aboriginal Customary Law under Siege. National Indegenous Law Conference. Retrieved April 10, 2010, < http://www.nswbar.asn.au/docs/professional/eo/indigenous/docs/NILC_paper1.pdf> Zorzi., C. A., (2006). The ‘Irrecognition’ of Aboriginal Customary Law. Retrieved April 10, 2010, < http://www.link.asn.au/downloads/papers/indeginous/p_in_09.pdf> Read More