The plaintiffs argued for a possessory title by the reason of long possession, while the Queensland government argued that when settlement took place the land was under the Law of England, and by their law the Crown acquired the "absolute beneficial ownership" of all land in the territory.
The decision handed down by the high court for the Mabo v Queensland (2) became a pivotal point in the recognition of customary aboriginal law in the Australian legal system. The Law extended itself further from Terra nullius but into criminal law. As the notion of the idea of terra nullius is overturned, an existence of a native law is acknowledged and the Courts were ready to recognize the existence of such laws, the form for native criminal jurisdiction and general jurisdiction of would co exist and decision would be made taking into account of both the common law and aboriginal customary laws. As a result litigants went to the high court argued that indigenous people who committed crimes should be trialed under their own traditional laws.
However in the case of Walker v New South Wales the high court clearly rejected the notion of applying Mabo(20) to a criminal jurisdiction. Customary laws were not recognised in common law but rather seen as precluding the existence of competing Aboriginal criminal jurisdictions.
His Honours states “Even if it be assumed that customary criminal law of Aboriginal people survived British settlement, it was extinguished by the passage of criminal statutes of general application. In Mabo (No 2), the court held that there was no inconsistency between native title being held by people of Aboriginal descent and the underlying radical title being vested in the Crown. There is no analogy with the criminal law”
Even though there was evidence of the existence of a native law, the situation of the Mabo case is substantially different to a criminal jurisdiction. In holding a criminal status the application of traditional laws is not applicable to offenders, they are to be treated like any other criminals under the general common law.
However nonetheless Courts still incorporate and take into consideration of customary laws in certain cases.
The Mabo case provided a gateway for many other indigenous cases who argue the right for the traditional customary law to be taken into consideration, many cases like Coe v Commonwealth and R v Wilson Jagamara Walker were some of the first few cases that argued that there was no longer a lawful reason as to not to take account of aboriginal customary laws. The Recognition of the customary law on the basis of the offender’s cultural background can be seen in the case of R v Minor (1992). The respondent is an aboriginal who pleaded guilty to two charges to manslaughter, one count of causing bodily harm and one count of aggravated assault. He consented to receiving a “payback penalty” (spearing in the leg) from the relatives of the victim. This evidence was presented to the sentencing judges and was considered and the respondent received a 10 years imprisonment sentence and was allowed to be released after 4 years on a good behaviour bond that was to last for 3 years only. In recognition of traditional punishment, his release date was fixed with the actual term of imprisonment and bonded part of the sentence fell short of the head sentence, the sentencing judge took into consideration of the decision’s effect on the respondent and his community. “In this case the learned trial judge (himself a judge of great experience in these matters) recognised that he was taking what he himself described as an "unusual" course. He was influenced by the consideration that, in this case, the infliction of payback would be of benefit to a community which possessed a philosophy that, once inflicted, payback wiped out all feuds arising from the respondent's actions. Hence his Honour's remark that the community "may put the whole episode behind them and get on with the more positive aspects of their lives".
The Judge understood that the payback punishment was going to occur regardless of what the legal punishment may be. Thus taking that fact into consideration, his honour gave special recognition and the sentence was shaped to acknowledge his extra punishment to make a fairer outcome. Although not condoning the aborigine’s traditional punishment method, Justic Mildren noted “there is ample authority” for taking the possibility of future payback punishment into account in sentencing.Aboriginal customary punishment is relevant in that fairness and justice requires a court to regard to all material facts. In order to give fairer sentences and more just decisions it is necessary to take into consideration of the offender’s context and make decision’s that are in the best interest in the offender’s community as well as the wider community.
Through the study of the two cases Mabo v Queensland and R v Minor, we notice how customary laws are incorporated and considered in the Australian Legal system. The Mabo case was a significant in helping the recognition of the native laws of the indigenous people, which lead to cases like the case of Minor where traditional punishment was considered in the final sentencing of the respondent.
Mabo and Ors v The State of Queensland (No.2) (1992) 175 CLR 1.
Meyers, G. D. & Muller, S. C. Through the Eyes Of The Media (Part 1): A Brief History of the Political and Social Responses to Mabo v Queensland (Murdoch University Environmental Law and Policy Centre, 1995).
R v Minor (1992)
Mabo v Queensland (No 2)  HCA 23
Law reform Commission “” Aboriginal customary law, viewed 9th June 2008
(1992) 59 A Crim R 227
(1992) 59 A Crim R 227
(1992) 59 A Crim R 227