SOAS Research Online

Abstract

The Thesis sets out to examine judicial use of customary law in the criminal justice process in the Northern Territory of Australia. The broad context of the Thesis is the relationship between state law and customary law and the role of the judiciary in interpreting and developing that relationship. The Thesis concentrates on criminal law as it is the subject area where the conflicts are most acute and on the Northern Territory as it is the jurisdiction with the largest proportion of Aborigines living traditional lifestyles. The categorisation of the acquisition of Australia as by settlement has meant that customary law had been largely excluded from the state legal process. However, changes in the political climate have led to increasing demands for some recognition. The Thesis examines the legal difficulties inherent in such demands, considers the options and concludes that, on balance, the judiciary are the body best placed to resolve such difficulties. The Thesis begins with an overview of the nature of customary law and of the theoretical arguments for and against the recognition of such law. This is followed by a consideration of the various methods by which such recognition might be achieved. It is argued that the role of the judiciary in the evolution and regulation of the use of customary law in this context is crucial and that it is often the most appropriate body to decide such issues. This argument is elaborated in the following three Chapters which consider those areas of the criminal justice process where the judiciary have most frequently engaged with this dilemma. The Chapters consider procedural issues, substantive law and sentencing. The final Chapter summarises and evaluates the arguments presented and sets out the conclusion.