Canadian Journal of Law and Society

Introduction

Judges in the Northern Territory of Australia regularly deal with the perplexing relationship between Aboriginal customary law and the white legal system. More recently many judges have accepted that, partly as result of alcohol abuse, Aboriginal communities have become devastated places. These judges have begun to consider that sentencing practice informed by customary law may help to repair damaged communities. The issue of customary law punishment, especially "payback"¹ has stretched the limits of the criminal law in a range of sentencing judgements. This stretching has been particularly pronounced where Aboriginal defendants and their representatives have asked the court to take into account intended violent punishments condoned by customary law in relation to mitigation of penalty. Although successive Australian judicial decisions have stated that Aboriginal criminal law did not endure beyond British settlement,² 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. In this paper I examine a number of sentencing decisions where these tensions are revealed and discussed. [End Page 141]

"White Poison":³ Alcohol abuse and social devastation

The Northern Territory Law Reform Committee recently reported that alcohol abuse was one of two main issues of concern to Aboriginal people with respect to the maintenance of law and order.⁴ There is significant judicial concern about the relationship between alcohol, violence and Aboriginal people. In the case law, strong connections between alcohol use and the devastated nature of Aboriginal communities are played out in numerous ways, including "lawless" behaviours such as sexual offences, wife abuse, and "wrong-skin" babies, and in other ways, such as early death, and causing Aboriginal people to drift into trouble in white towns.⁵ The cases tend to support one commentator's thesis that the "drunken aborigine" is a powerful iconic image of Aboriginal people out of control,⁶ at least in the higher courts. Especially more recently, judges have regularly recognised alcohol abuse as a sign of cultural breakdown, social devastation, and disadvantage. This recognition has had ramifications for their approach to sentencing.

For example, in the case of Juli,⁷ an Aboriginal defendant was found guilty of two counts of sexual assault. There was evidence that the defendant abused alcohol, and that on previous occasions he had drunk alcohol to excess and then committed violent offences.⁸ The court accepted that when he carried out the offences he was intoxicated. Malcolm C.J. noted:

It is a notorious fact that the increased use of alcohol by Aboriginal persons in relatively recent times has caused grave social problems, including problems of violence, in the communities in which they live. The general circumstances which have led to problems associated with the consumption of alcohol may themselves provide circumstances of mitigation.⁹ [End Page 142]

Malcolm C.J.'s comments suggest that alcohol abuse is synonymous with cultural devastation and alienation specifically among Aboriginal people.¹⁰

Social devastation associated with the consumption of alcohol is now routinely discussed in sentencing judgements about Aboriginal people in the Northern Territory.¹¹ For example, in one case relating to an offence of assaulting a police officer at the community of Ali Curung, alcohol consumption was the focus of the plea.¹² During his sentencing remarks, the judge commented that:

(…) one must have regard to the general policy of leniency towards those Aboriginal offenders who are disadvantaged socially, economically and in other ways because of their membership of a deprived section of the community (…). In this respect it is also relevant to consider the effect that alcohol has had on the appellants chances in life (…) the effects of alcohol can in such circumstances be seen as a mitigating factor, [this] has on many occasions been accepted.¹³

In this example, alcohol abuse is again tied to deprivation and disadvantage among Aboriginal people as a social group. Other judges have found that "poor self image and other demoralising factors"¹⁴ placed stress on Aboriginal people which lead to their alcohol abuse and consequent offending. In the case of Long,¹⁵ the defendant was convicted of manslaughter, and found to have been intoxicated when he stabbed his victim. Again, the judge focussed his discussion on alcohol and its associated social devastation among Aboriginal people.

In the case of Fernando,¹⁶ the defendant was drunk when he wounded his de facto wife. In sentencing Fernando, the judge accepted that problems of alcohol and violence "go hand in hand"¹⁷ in Aboriginal communities. Again alcohol abuse was seen as indicative of the social deprivation amongst Aboriginal people. Generally judges have been unwilling to explicitly recognise race as a disadvantage per se, on the basis that it would be contrary to racial discrimination legislation.¹⁸ Specifically, the judge in [End Page 143] Fernando found that the sentencing judge must "(…) avoid any hint of racism, paternalism or collective guilt (…)."¹⁹ However, the judgements discussed above do make a strong link between Aboriginality, alcohol abuse, and social devastation. They recognise the discriminatory nature of social life,²⁰ or what Lefebvre might call "uneven development."²¹ The everyday lives of Aboriginal people are at least implicitly recognised by the judiciary as colonised; social systems are shattered and dissociated, and many communities are at an extreme point of alienation.²² The recurring theme in the cases referred to above is an equation of alcohol abuse, Aboriginality and social dysfunction. In this context alcohol abuse has become entrenched as a symbol of this triumvirate. Langton suggests that the "drunken Aborigine" provides "(…) the narrative, presenting a modern image of uncontained and undisciplined violence which can not be made to accept (…) the constraints of civilisation."²³ It is this picture of a destroyed society that has prompted judges to rethink the role of sentencing. More lenient penalties have been applied,²⁴ and judges have increasingly looked to the cultural expertise of Aboriginal people and to customary law to repair the destruction.

Subjects and objects of knowledge

Sentencing provisions in the Northern Territory do not expressly require the courts to take customary law into account. However legislation leaves it open for judges to do so.²⁵ Judges in the Northern Territory have engaged a range of experts to provide evidence of customary law. For example in Minor,²⁶ the court heard evidence about Aboriginal cultural beliefs from a field officer employed by a Lutheran Mission.²⁷ In Jamilmira, ²⁸ there was significant emphasis placed on anthropological evidence presented to the court.²⁹ As I have noted, judges have increasingly emphasised the role that [End Page 144] sentencing can play in supporting the achievement of "peace" or settlement in Aboriginal communities. In this sense, judges have taken up some of the aims of customary law punishment.³⁰ This shift in the role of sentencing corresponds to the view articulated above, that Aboriginal people and their communities are devastated and in need of repair. In a number of cases judges have explicitly confirmed that resolution and settlement of matters along customary lines within a specific Aboriginal community was extremely important with respect to the decision about penalty. For example, Kearney J. pointed out in one case that:

(…) the continued unity and coherence of the group of which the particular accused is a member is essential, and must be recognised in the administration of criminal justice by a process of sentencing which takes due account of it and the impact of a member's criminal behaviour on it.³¹

A change in the role of Aboriginal witnesses in sentencing hearings has developed simultaneously with the shift in focus in relation to the perception of devastation in Aboriginal life. Where historically Aboriginal people were generally limited to a role of witness to facts,³² they have become key actors in advising courts about cultural issues related to sentence and applicable sentencing responses. Courts in the Northern Territory now anticipate that Aboriginal people will provide expert knowledge about themselves and their communities to the court, where in the past such expertise has been the preserve of white experts.

Other changes have also occurred which support this approach. In order to facilitate the evidence-giving of Aboriginal witnesses, judges have afforded some flexibility to Aboriginal people in relation to how their evidence may be relayed to the court.³³ For example, the judge in Wilson³⁴ found that, "[w]hen it comes to considering traditional matters of Aboriginal law and custom it is preferable indeed that the evidence come from a representative group."³⁵ In Wilson, three Aboriginal people were called together to give evidence of the kind of "payback" that could be expected by [End Page 145] the defendant when he returned to his community.³⁶ The court accepted that in a supportive group Aboriginal people are more likely to give a clear explanation of the customary law position which best represents the community.³⁷ Thus the courts have placed emphasis on the need to obtain cultural information from representative bodies, or individuals within communities.³⁸ Courts have also travelled to hear cases in Aboriginal communities, so witnesses will be more comfortable to give their evidence.³⁹ Further, evidence has been successfully presented to the court in alternative forms such as community petitions. Victim statements have also received distinct attention in some circumstances. These latter two approaches are illustrated in the case of Miyatatawuy⁴⁰ discussed below.

In Miyatatawuy, the defendant was found guilty of assaulting her husband. She had relevant prior convictions and was at risk of receiving a jail penalty. Through the prosecutor, the victim Barramala, presented a statement to the court that sought to support a non-custodial penalty. Barramala's statement focussed attention on the fact that the community had already dealt with the matter to their satisfaction via customary law. Essentially, the defendant had been required to attend a number of meetings under certain conditions. Barramala's statement said in part:

[t]his [customary law] system has already decided that the issue is finished (…). If the prosecution proceeds, not only does it discredit our decision to deal with our own problems according to our cultural law, but [the defendant] would be tried twice for the (…) offence (…).⁴¹

The judge in this case also received a written statement from members of Miyatatawuy's community. This was in a form similar to a petition, and was signed by about 140 people from the defendant's community. Essentially, the petition asserted that the defendant had already been dealt with via customary law.⁴² According to the statements in the petition, the defendant had been banished from her community for a period of time,⁴³ and had promised to be of good behaviour. She had been supervised by members of her community. Martin C.J. noted that the criminal law was related to public wrongs, and therefore could not be settled privately.⁴⁴ It is for this reason the victim's wishes in relation to sentencing would not usually be relevant. [End Page 146] However, in this case, Martin C.J. found that the statement of the victim Barramala, could be distinguished, because the victim spoke as a representative of his community and in his capacity as a leading member of his community.⁴⁵ Ultimately, Martin C.J. accepted both pieces of evidence as supporting mitigation of the penalty.⁴⁶

Aboriginal people are now often heard by Northern Territory Courts in relation to explaining the customary punishment planned by the community. In Walker,⁴⁷ Martin C.J. referred to the evidence of a community leader, Grant Granites, who had advised the court that the defendant:

(…) will be called upon to face tribal punishment; probably, (…) by getting speared in each of your legs a couple of times in such a way that you will be pained for at least a couple of weeks (...) a hunting spear will be used. The punishment would be administered by the brother of the dead man (…). It would be done publicly (…).⁴⁸

Importantly, Granites advised the court that the proposed punishment was in the interests of settling down the community. Similarly, in Jadurin,⁴⁹ the appellant's father gave evidence that when Jadurin eventually returned to his community the victim's relatives:

[w]ill tribally encircle [him] and on cue will be allowed to let fly with boomerangs and nulla nullas and spears. When a tribal elder chosen by the group feels that punishment is complete, he will take a spear, a woomera and a burning stick and signal that they are to stop (…).⁵⁰

The Full Court of the Federal Court accepted that this material should be taken into account in relation to sentence determination.⁵¹

In all of the cases referred to, the defendants and/or the victims, were intoxicated to some extent at the time of the offence.⁵² Thus the equation of Aboriginality, alcohol, and social devastation is often present in cases where Aboriginal peoples' cultural expertise is sought with respect to penalty. It is likely that the changed perception of the role of penalty, as community settlement or repair, is a pivotal reason why this kind of evidence is sought. In many of the cases judges are no longer concerned to relocate Aboriginal people within the white community. That is, they are not concerned to use sentencing for the purpose of assimilating Aboriginal people. Rather, judges [End Page 147] draw on Aboriginal witnesses for explanations about how customary law can assist defendants to be restored to their communities, and, as a corollary, how the peace can be reinstated to, and devastation repaired in, Aboriginal communities. In other words, how customary law can restore discipline to Aboriginal communities. It is for this purpose Aboriginal people's expertise about their own culture is increasingly recognised by the white legal system.

There is a tension implicit in the judicial recognition of these witnesses and the material they present.⁵³ The form of customary response they describe is often not recognised as a "legal" response by the legal system with which they are communicating.⁵⁴ There is nevertheless some kind of space made for them within the law. However, as Rush points out, in order to be heard by the legal system, to enter this space, Aboriginal people must "(…) orient their daily lives to law, to pledge themselves as subjects to law, to experience themselves as legal subjects."⁵⁵ The recognition and incorporation of Aboriginal witnesses in courts in the way described, is another means of making Aboriginal people and customary law subjects of general law. Aboriginal people become caught up in supporting this paradigm, by becoming experts in their own culture at the same time as being subjects of their expertise.⁵⁶ This is not necessarily negative, as Foucault notes:

[w]e must cease once and for all to describe the effects of power in negative terms: it "excludes", it "represses", it "censors", it "masks", it "conceals". In fact, power produces, it produces reality; it produces domains of objects and rituals of truth.⁵⁷

Customary law has become intrinsic to the general law sentencing process. It cannot ultimately override the judges' control over sentence,⁵⁸ and yet at the same time it asserts its own independent force. Once this kind of evidence of the implementation and role of customary law is accepted, judges appear to be more flexible about the kind of penalty that is imposed. [End Page 148]

The expanding arsenal of penalty

In spite of numerous reports and discussions over the years on the question of sentencing Aboriginal people,⁵⁹ there has been little change in the rate of their imprisonment. In the Northern Territory, Aboriginal people continue to be literally controlled and contained by the white legal system. Aboriginal people make up 28.8% of the Northern Territory population,⁶⁰ yet, in 2003, a staggering 78% of those in custody in the Northern Territory were Aboriginal people.⁶¹ Numerous other Aboriginal people are at liberty subject to certain conditions imposed on their behaviour, and are supervised by government officials. Many in this latter group could be imprisoned if conditions are breached. Although it cannot be argued that there has been any significant variation in the sentencing of Aboriginal people, there are some indications of a gradual shift in approach.

Generally it is the wide acceptance of a view of Aboriginal people as socially devastated that has encouraged some new approaches to sentencing. The increasing acceptance of the evidence of Aboriginal people on issues related to customary law and its place in restoring community peace, discussed previously, has helped to open the door for the recognition and implementation of sentences which suggest a tentative recognition of sentencing practice informed by customary law.

Mildren J.'s judgement in Minor⁶² is regularly referred to as an authority on the current position in the Northern Territory with respect to the role of customary law in sentencing decisions. Minor pleaded guilty to two counts of manslaughter. The initial sentencing judge took into account evidence that tribal punishment, in the form of a spear in the thigh,⁶³ would be carried out by the defendant's community after his release from prison, and the fact that Minor consented to the punishment. The sentencing judge then sentenced Minor to 10 years imprisonment (the head sentence). Minor was required to serve four years of the sentence, and then he was to be released on a bond to be of good behaviour for three years. The Director of Public Prosecutions [End Page 149] (DPP) appealed the sentence on the basis that there was an error of principle because the bonded part of the sentence fell short of the head sentence. The DPP also appealed on the basis that by taking "payback" into account, the judge was sanctioning unlawful violence.

Mildren J. appeared to accept that finalising the matter "in the tribal way" would help to settle down the community.⁶⁴ He found that by merely taking the possibility of payback into account, the sentencing judge did not sanction unlawful violence. Further, the Court of Appeal found that a sentencing judge was entitled to have regard both to the interests of the wider community, and the special interests of the community in which the respondent was a member.⁶⁵ Mildren J. noted that:

[t]he reason payback punishment, either past or prospective, is a relevant sentencing consideration is that considerations of fairness and justice require a sentencing court to have regard to "all material facts, including those facts which exist only by reason of the offenders" membership of an ethnic or other group. So much is essential to the even administration of administrative justice.⁶⁶

Thus the consideration that payback was likely to take place was merely one of a number of "material facts" to be taken into account. The fact that payback was something intrinsically associated with the defendant's Aboriginality did not mean that it should be ignored. Mildren J. also recognised a general concern, that as a rule, people should not be punished twice for same offence.⁶⁷

Since 1975 judges have been restrained by anti-discrimination legislation and thus race itself is not a permissible ground of discrimination.⁶⁸ Further, judges have generally accepted that social, economic, and other disadvantages that may be associated with the defendant's Aboriginality should be taken into account in mitigation of penalty.⁶⁹ Evidence about "payback" and other customary law responses has generally been accepted in relation to its potential to address disadvantage. The possibility of violent physical customary law responses severely tests the legal system.⁷⁰ In Minor, there was some emphasis placed on the legality of the payback proposed. The DPP argued that the payback assaults were likely to be illegal according [End Page 150] to the criminal law because, regardless of any evidence of consent, the payback was likely to cause permanent injury to health, or "grievous bodily harm;" a form of injury that could not be consented to.⁷¹ For his part, Mildren J. drew on his long experience in the Northern Territory, he referred to the lack of medical evidence, and ultimately did not accept that the form of proposed payback, spearing in the thigh, was likely to cause grievous bodily harm. Subsequent judges have usually not agreed with this assessment,⁷² however Mildren J.'s view was that once consented to, this type of punishment was theoretically legal.⁷³

In any event, Mildren J. was of the view in Minor, that even if the proposed payback was illegal, it should be taken into account.⁷⁴ Mildren J. referred to Mamarika as authority on this point.⁷⁵ I note that in Mamarika, the defendant had entered a plea of guilty to manslaughter. Mamarika had appealed against the severity of his sentence on the basis that punishment had already been inflicted on him and should be taken into account. In this case, the defendant had been "punished," by spearing and stabbing, and had received some injuries. This had occurred at a time between committing the offence, and appearing in court for the offence. Mamarika had not consented to the punishment meted out on him in his community. The judges were reluctant to accept that this was traditional punishment as there had been insufficient time to establish the appropriate tribal response. The court accepted that Mamarika's punishment had resulted from anger. In spite of this, the judges in this case found that Mamarika had "(…) already undergone substantial punishment for what he did (…)"⁷⁶ and reduced the penalty. Regardless of whether the punishment in Mamarika was tribal or lawful (and in the Judge's assessment it was most likely neither) the point is that the court was able to take into account something that had already taken place. Mararika is not particularly helpful in assisting us to understand why potential unlawful activity should be taken into account to mitigate penalty. In any event, Mildren J notes that the usual reason why courts say that they do not condone payback is because "(…) it is a form of corporal punishment, carried out by persons not employed by the State to impose punishment (…)"⁷⁷ rather than because tribal punishment is unlawful per se. [End Page 151]

Often judges have suggested that the crucial distinction is between recognising the inevitability of payback on the one hand, against facilitating it on the other hand.⁷⁸ However, the line is often thinly drawn. Sometimes courts have contrived a penalty on the basis that payback would occur. In recognition of this they have integrated supervision arrangements into the sentence. For example Walker pleaded guilty to manslaughter and as part of his plea for mitigation of sentence he advised the court that he expected to face payback on his release from prison. There was evidence that tribal punishment would help settle the community.⁷⁹ With respect to tribal punishment, evidence was given to the effect that Walker would be speared in each of his legs by a hunting spear. Martin C.J. accepted this evidence and noted:

(…) I think the first thing the court has to do in this case, and maybe others, is to try and work out a regime whereby it can be informed as to whether what is expected has happened or not and to bear in mind the powers of the Director of Correctional Services who might be asked to supervise people and report to the court (…) with a view to changing the terms and conditions of a good behaviour bond.⁸⁰

Clearly Martin C.J. anticipated that payback would take place and he structured the sentence on this basis. He sentenced Walker to three years imprisonment but allowed immediate release,⁸¹ and placed him on a good behaviour bond to be supervised at his home community of Yuendemu. The judge noted:

I ask the Director of Correctional Services to report to the court as to whether that event [payback] occurs. If so when and as to what happened (…) I would ask the director to inform the court accordingly and to provide any information which he can obtain from the community or others concerning that issue of payback (…) the director may come before the court and seek a variation of conditions (…).⁸²

In this case the sentence links the court via the state bureaucracy to the Aboriginal defendant in much the same way as the prison institution does. However the suggestion that the state official watch over the defendant within his own community, and that members of the community are generally expected to inform the state official about the "payback" to be carried out, creates a new set of relationships. The requirements mean that the defendant's community becomes a disciplinary space, and members of the community become connected to the white legal system through a kind of self-surveillance.⁸³ Martin C.J. was at pains to clarify that although the [End Page 152] court must take into account the violent payback that was planned, it did not condone it.⁸⁴ After the sentence in Walker was handed down, there was some general concern raised in the broader community about what the decision required. It seems that some people were concerned that the sentence required government officials to actually view the payback, thereby directly involving them in the process. This concern prompted Kearney J. of the Northern Territory Supreme Court to clarify the sentence in Walker to the public. He observed that government officers were not asked to be present at, or to observe any payback, and the sentence was not intended to be varied.⁸⁵ Although it seems that direct observation by government officials was not required, the language of the sentence does appear to suggest that variation was considered a possibility in the event that payback was not carried out.

Beyond settling communities and ensuring justice to individual defendants, other reasons have been suggested to support the recognition, if not facilitation of, payback in sentencing. In Jadurin⁸⁶ for example, there was some evidence to the effect that if Jadurin was not released to accept payback, someone else in his family would be targeted to accept it.⁸⁷ Ultimately the court reduced a penalty for manslaughter on the basis that some payback had taken place and more was likely to take place at some stage. In reducing the penalty the court sought to recognise "(…) the structure and operation of Aboriginal society (…)"⁸⁸ but not to abdicate responsibility to Aboriginal people. Again this illustrates the tensions implicit in trying to ensure that the white legal system both recognises customary law and at the same time maintains control of the sentencing process.

Commonly, sentencing decisions have found that the unity and coherence of Aboriginal communities must be fostered by the criminal justice system and that recognition of "payback" can assist with this.⁸⁹ For example, Poulson killed another man during a fight, and was subsequently hit with nulla nullas and spears. In sentencing him, Thomas J. noted that: "[w]hilst I do not condone the physical punishment inflicted (…) I must accept that for the respective families (…) it was an important process (…) and has been effective in resolving the enmity between the families (…)."⁹⁰ Such cases, where the payback has already occurred at the time of sentencing, create less of a tension for the criminal law. After all, what's done cannot be undone, and there is no question of facilitating future illegal [End Page 153] acts. Nevertheless there is an implicit message of respect for customary law payback within such decisions.

In the case of Munungurr,⁹¹ the trial judge had admitted a letter from the accused's community, which stated the community's wish that the defendant be returned to the community for various reconciliation meetings and ceremonies. The trial judge had given no weight to the letter. In spite of accepting the submission of the DPP—that what the community proposed did not involve any punishment⁹² —the Court of Criminal Appeal held that the trial judge should not have ignored the wishes of the letter. They found that 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, the community's wish that he be dealt with traditionally and the traditional punishment proposed by the community.⁹³ In this case the court allowed the appeal and ordered, as part of penalty, that the defendant attend a tribal reconciliation for the purpose of sealing the peace.⁹⁴ Similar to the sentence in Walker, the Court also asked the Director of Correctional Services to report back to the court once satisfied that the meeting had been held. The Court reminded the Director of his powers to seek a variation if the meeting had not taken place within a reasonable time.⁹⁵ Again, similarly to the Walker case, the court and community are interdependent in relation to the sentence. Aboriginal people are again both supervisor and supervised.

Conclusion

Aboriginal people who confront the criminal justice system are now frequently perceived as belonging to a devastated community. This changed attitude has fostered a shift in sentencing goals. Judges have been more likely to see peacemaking and community restoration as an important objective in sentencing. To this end courts have also become more open to accepting evidence from Aboriginal people as "experts" about customary law views about penalty. These shifts have in turn lead to more lenient jail sentences and new kinds of penalties being available. Usually these new sentences are articulated as short sentences of imprisonment to be served, coupled with periods where the defendant is bound over to be of good behaviour for a period of time. Often there is a period of sentence suspension associated with the binding over. This formal articulation of the sentence does not express the whole story however. Informally, in some situations, the court has shortened (mitigated) the actual prison sentences on [End Page 154] the basis that various customary practices such as physical punishment,⁹⁶ banishment,⁹⁷ or reconciliation meetings,⁹⁸ for example, will take place.

More recently, where judges have accepted evidence of "payback" or customary law and taken it into account, they have consistently stressed that it is not necessarily condoned, rather it has been recognised as inevitable, and/or helpful in restoring community peace.⁹⁹ Courts constantly maintain that the wishes of a specific Aboriginal community are relevant so long as they don't prevail over what would be a "proper" sentence.¹⁰⁰ The absolute control of the white legal system over the exercise of customary law punishments is of course a chimera. Arguably Aboriginal people have developed greater control over the sentencing process, however the flip side of this is that Aboriginal communities and their members have become bound up in the white legal process. The network of surveillance of the legal system over Aboriginal people is strengthened, and Aboriginal people become further integrated into that network.¹⁰¹ In the process, Aboriginal communities have become further enmeshed as spaces of white legal discipline.¹⁰²

For their part, contemporary judges have become caught in a suspended place neither condoning customary law responses and associated corporal punishment nor disavowing their place.¹⁰³ In the past judges have imagined that white society and its laws could be placed like a grid over Aboriginal society and laws.¹⁰⁴ They expected that eventually the struts of white society and law would be able to be laid firmly in place and customary law would disappear.¹⁰⁵ However it has not disappeared, and in response to a situation of perceived social crisis judges in the Northern Territory have recognised the durability of Aboriginal laws and their potential use in disciplining [End Page 155] Aboriginal people and restoring peace to Aboriginal communities. In this sense there is a kind of weak legal pluralism in operation.¹⁰⁶ "Weak" because there is informal recognition of Aboriginal customary law which gives some small space for an alternative legal authority to operate albeit under conditions purported to be scrutinised by the white legal authority.