Despite this illegality the courts do take traditional punishments, as well as other relevant matters under Aboriginal customary laws, into account in sentencing. The experience of courts in the last 20 years is a good starting point in considering to what extent and in what ways Aboriginal customary laws should be recognised in the sentencing of Aboriginal offenders. The fact is that they are already recognised to a considerable degree. In considering reform, it is helpful to build on the existing experience in this field, if necessary reinforcing or elaborating on it. The courts have recognised a distinction, which in the Commission's view is fundamental, between taking Aboriginal customary laws into account in sentencing, on the one hand, and incorporating aspects of Aboriginal customary laws in sentencing orders, on the other.
Similar principles apply to discretions with respect to bail.
Aboriginal customary laws are a relevant factor in mitigation of sentence, both in cases where customary law processes have already occurred and where they are likely to occur in the future. Within certain limits the views of the local Aboriginal community about the seriousness of the offence, and the offender, are also relevant in sentencing. But the courts cannot disregard the values and views of the wider Australian community, which may have to be reflected in custodial or other sentences notwithstanding the mitigating force of Aboriginal customary laws or local community opinions. Nor can the courts incorporate in sentencing orders Aboriginal customary law penalties or sanctions which are contrary to the general law. Care is needed to ensure appropriate local consultation in making such orders, and flexibility in their formulation.