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.