'Payback', Customary Law and Criminal Law in Colonised Australia

Abstract

'Payback' is an Australian Aboriginal English term (also known in Melanesia) commonly understood to refer to a vendetta. Satisfaction of a grievance, such as a death or wife-stealing, may be sought through ritual ceremony, gift-giving, corporal punishment and ordeal, or even killing. Such phenomena, often characterised as vendetta or feud, have been noted by non-Aboriginal observers during most of the period of European colonisation (from 1788). In spite of the presumption of sovereignty that recognises only one law, it is shown that the criminal law in Australia has conceded limits to its reach in dealing with payback. More recently we observe that judicial attitudes have tended to recognise the positive functions of certain forms of payback in resolving conflict and upset in communities. Far from being eradicated by colonisation, payback retains a rationality in Aboriginal communities in a country that is subject to white man's law.