The application of Indigenous law: A tale of two cultures

Recent revelations that a Northern Territory Supreme Court judge effectively exonerated a 50-year-old traditional Aboriginal man on charges of unlawful sexual intercourse with a 15-year-old "promised" wife raise some vexed and serious issues.

It is said that as the girl's parents were "concerned she was playing up at nights with local boys in her hometown of Maningrida in western Arnhem Land, they decided it was time for the promise to be fulfilled, and for her to learn her duties and responsibilities as a wife." This was despite the fact that the "husband" had some years ago been convicted of manslaughter of a previous wife. Other reports suggest that only one of the parents agreed with the forced marriage.

Justice Gallop said that the girl "knew what was expected of her". I suspect the reality is that, like many young Aboriginal people, she is caught between two cultures; subject to the expectations of the residual traditional culture, but possessing many of the same beliefs, hopes, aspirations and expectations of a young girl anywhere else in Australia. Being forced to marry a violent old man when you're still a child does not fit those aspirations and expectations, nor does it accord with the dominant western culture’s primary values of individual rights, freedom and protection of children from what it regards as sexual abuse. Should a judge be free to ignore those values and prefer instead Aboriginal customary law and values, in the absence of Australian legislation giving him an express duty to do so? Should the judge be free to ignore the fact that the young female victim had fairly clearly expressed her non-acceptance of customary law in its application to her?

The published facts strongly suggest a lack of consent on the young girl's part, both to the "marriage" and sexual intercourse. At the very least there appears to have been "some element of compulsion which prompted the victim to submit" (as the sentencing magistrate held). Justice Gallop found that the magistrate had gone outside the facts relied on by the prosecution in reaching that conclusion, but failed to explain how in his sentencing remarks. In any event, "consent" is of dubious relevance at best where the victim is a child and the offender a much older man. Justice Gallop's approach brings to mind Archbishop Peter Hollingworth's "she asked for it" defence of a priestly colleague who abused a child the same age as the one in this case.

I tend to agree with these comments by a contributor to The Australian newspaper’s website:

Had this man been white he would be reviled as a pedophile and an exploiter of Aboriginal girls. Had the girl been white there would be counsellors all over her. Had both of them been white there would be much gnashing of teeth from social campaigners. What the nation can expect however is the exact opposite.

He is humiliated and embarrassed that he has had to explain his backward and repugnant traditions of buying children. We can no doubt expect an apology to flow from the government of the Northern Territory for the "insensitivity" shown towards him. She is in "no need of protection from white law" and "knows what is expected of her". Clearly she (a child) is to be left alone to fend for herself. That such marriages may be common and morally correct under Aboriginal law is indeed proof that we do not need two parallel legal systems in this country. That a judicial officer would bow and scrape before Aboriginal custom at the expense of the rights and freedoms of an Australian citizen is both horrific and disappointing.

Nevertheless, there are additional issues involved, and they're not at all simple, despite justifiable outrage at Justice Gallop’s sentencing decision. We are necessarily reacting from the standpoint of our own individualist western culture; Aboriginal traditional law and culture are very different. As David Lea explains (citing another author) in an article titled "Individual Autonomy, Group Self Determination and Assimilation of Indigenous Cultures":

In traditional societies, we would expect values to be based more on recognition than on choice, with the result that the collective and individual identity and well-being would be less open to volition than, in say liberal individualistic societies. This, I claim marks the major difference between native communities and our own. …

Members of the (indigenous) community are expected to participate in communally orientated functions, and to respect the authority of the community and its traditions and values; withdrawal from participation is equated with withdrawal from the community, since membership can mean nothing other than participation.

How should we resolve clashes between western individualist law and culture and Aboriginal customary law, with its primary emphasis on community and obedience to social and religious traditions?

Another controversy that also arose this week in the Northern Territory illustrates additional dimensions to that question. Earlier this week an Alice Springs magistrate released a man charged with murder on bail for one week to suffer tribal payback, despite objections from the Crown Prosecutor.

ABC news reported a Criminal Lawyers' Association spokesperson as saying that "courts are not moving toward sanctioning traditional punishment".

I am sure I later heard a story on ABC TV news to the effect that the payback had gone badly wrong. The accused murderer had been set upon by a large mob when he arrived back at his community, and they had tried to kill him. He was reported to have been quite seriously injured and in hospital in Alice Springs. However, I can't now find any mention of the story on the ABC website or elsewhere.

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.

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.

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.