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The application of Indigenous law: A tale of two cultures

By Ken Parish - posted Tuesday, 15 October 2002


Alison Humphry deals with some of these issues in an article in Murdoch University's E-Law journal:

The converse situation is that where the traditional punishment for an offence is seen by the national legal system and international human rights instruments as too harsh. An example of this is the incidence of tribal pay-back killings, or tribal spearings/ woundings as punishment for serious transgressions.

It seems obvious therefore, that tribal killings are in conflict with the national legal system (which does not condone capital punishment), and every international human rights instrument. It is less obvious whether a State must, under the convention, condone physical punishments such as spearing or other forms of wounding. As stated earlier, human rights instruments generally contain proscriptions of cruel and inhuman treatment or punishment. However, as is pointed out in the Law Reform Commission report, it may be a moot point as to what is more cruel to various peoples. Certainly the high rate of Aboriginal deaths in custody has made it open to question whether imprisonment per se is less cruel and inhuman. See for example the submission of HC Coombs to the Law Reform Inquiry on customary punishment: "punishments...such as prolonged imprisonment especially among alien strangers and away from their own country are markedly more "inhumane" and unconscionable" than a spear through the thigh - usually voluntarily accepted as part of a consensus settlement

I don't think there is anything wrong in principle with a judge or magistrate taking into account on sentencing the fact that an offender has already been subjected to tribal punishment , and discounting the "white fella" sentence a little as a result. That is consistent with basic notions of fairness and the "double jeopardy" principle. It may even be okay to release an accused offender on bail knowing that he will more probably than not be subjected to tribal punishment. However, it seems to me that there is a critical qualitative distinction when a person is released on bail for the specific purpose of undergoing tribal punishment. That comes perilously close to judicial complicity in the crime of aggravated assault.

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Whether Australian law should formally recognise some types of tribal punishment (e.g. ritual spearing), as opposed to merely taking into account on sentencing the fact that it has occurred, is a difficult question. On the one hand, the arguments discussed by Alison Humphry make a reasonably persuasive case for the proposition that spearing may (at least in some cases) be a more humane option than prolonged imprisonment. It might also be more effective in deterrent terms, given its immediacy and the element of community shaming.

However, tribal punishments frequently go wrong. This week's Alice Springs incident (if I heard rightly) is not an isolated occurrence. Even if ritual punishment does not degenerate into vigilante mob violence, sometimes the spear severs a vital nerve or artery, instead of just penetrating the fleshy part of the thigh. Many Aboriginal men are somewhat less practised at using a spear than they once were, and sometimes their faculties are affected by alcohol or other drugs. On the other hand, sometimes there are credible reports that tribal punishment did not in fact occur at all. An offender may falsely assert the certainty of such punishment to win a reduced sentence, and his defence lawyer may make a submission to the court without adequately checking the truth of his client's assertion.

However, unlike the accused murderer in Alice Springs, the situation of the 15-year-old child "bride" from Maningrida does not involve the interrelationship between traditional and western punishments, but rather an Aboriginal "civil" law concerning marriage and conjugal rights and duties. There are some parallels with the case of Aboriginal activist Murrandoo Yanner, who was convicted of an offence for spearing a crocodile. The High Court overturned the conviction, basically because he was acting in accordance with Aboriginal customary law and practice. However, even if one accepts the logic of that decision, the Maningrida case raises an additional dilemma. There is a child involved, whose legal rights (not to mention body) have been grossly violated against her will.

David Lea suggests that there is a fundamental contradiction between Aboriginal self-determination (which necessarily requires economic self-sufficiency) and maintenance of traditional law and culture:

"My conclusion is that if the survival of indigenous communities as distinct cultural enclaves is guided by a policy which aims for autonomy and self-determination, it is difficult to avoid the economic imperative which links self-determination with a degree of financial self-sufficiency. …

"However, the more successfully the community becomes integrated into the economic mainstream, the more irrelevant the traditional cultural context may become. ... As traditional communities become integrated into the modern market economy, it is unavoidable that their values and choices will become determined by a dominant economic culture even if the presence is subtle."

Lea suggests an alternative to this inevitable erosion of customary law and traditional Aboriginal society, by advocating that Aboriginal communities which wish to retain their culture and society intact should be supported by the taxpayer to do so, as a matter of "fiduciary" and "moral" duty, and without any expectation that the community will achieve economic self-sufficiency. In effect, he advocates that Aboriginal communities should have the option of becoming taxpayer-supported "museum cultures". I have serious problems with this suggestion, primarily on the basis that it can't possibly work. You would have to create an impenetrable "iron curtain" around the "museum" communities, to avoid the danger of young people being infected by the contagion of western consumerist values and individual rights culture. The recent experience of the Soviet Union and its satellites suggests that this is impossible.

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Indeed, it's already too late, as our 15-year-old Maningrida sexual assault victim’s attempted resistance to forced marriage illustrates. In every Aboriginal community I have visited, however remote, young people manifest clear aspirations towards western culture and values. They have voted with their feet. It's too late to turn back the clock, even if we thought it was desirable. Land rights and self-determination should be seen mostly as circuit-breakers, designed to give Aboriginal communities the breathing space to find their own ways to adapt to 21st century cultural and economic realities. They have no choice but to make those adaptations, and we don't do them any favours by fostering an illusion that preservation of a "museum culture" is possible. Justice Gallop did the Maningrida sexual abuse victim no favours by siding with her abuser on misguided customary law grounds. In a wider sense, he also hasn't helped Aboriginal society itself to begin confronting these vexed issues in a constructive way.

I don't argue that formal recognition of Aboriginal customary law in "white fella" law should be rejected out of hand. I do, however, suggest that the two cases discussed above provide compelling evidence that such proposals needs very careful analysis and broad-ranging community consultation before adoption is contemplated.

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About the Author

Ken Parish is a Darwin-based lawyer and former Labor member of the Northern Territory Legislative Assembly. He now teaches (mostly public law subjects) at Charles Darwin University, where he founded Australia's first fully online external law degree program. Ken is no longer associated with any political party, describing himself as a "committed sceptic".

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