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20

Aboriginal Customary Law
   
20.1 Aboriginal people account for 29% of the total Northern Territory population yet 78% of the Territory’s prison population are Aboriginal. Aboriginal people reside in both urban areas and remote communities. From time to time, Aboriginal customary law issues arise in cases involving Aboriginal offenders and Aboriginal victims.
   
20.2 The Guidelines regarding Aboriginal customary law must be understood within a broader context which takes into account the following three factors:
     
  (1) Aboriginal customary law is an everyday part of the lives of Indigenous people in the Northern Territory;
  (2) Aboriginal women’s individual human rights to live free of violence must prevail over the minority rights of Indigenous people to retain and enjoy their culture; and
  (3) violence by Aboriginal males against Aboriginal females is prevalent in the Northern Territory.
   
  Everyday part of Indigenous lives
   
20.3 Aboriginal customary law is an everyday part of the lives of Indigenous people in the Northern Territory. It is an important source of obligations and rights and is the outcome of many historical, social and cultural influences. It is not a code and may vary from one community to another. Additionally, there may be disagreement within communities or groups on aspects of customary law and their application to particular circumstances. Aboriginal men and women may also interpret customary laws differently; they may have competing views regarding what should prevail in those particular circumstances.
   
  Individual human rights
   
20.4 Aboriginal women’s individual human rights must prevail over the minority rights of Indigenous people to retain and enjoy their culture. Any recognition of Aboriginal customary law must be consistent with universal human rights and freedoms. Indigenous people have the right to practise their own culture. Article 27 of the International Covenant on Civil and Political Rights (ICCPR) establishes minority rights:
   
    In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
   
  Difficulties may arise where there is conflict between Aboriginal women’s or children’s individual human rights, and Indigenous minority rights. International Labour Organisation (ILO) Convention [169 Articles 8 and 9(1)] and the Draft Declaration on the Right of Indigenous Peoples are not binding in Australia but establish the right of Indigenous people to retain their customs and traditions and to deal with offences subject to the requirement that this is:
   
  … not incompatible with fundamental human rights defined by the national legal system and with internationally recognised human rights.
   
  In 1989 and 1990 the Australian Government agreed to be bound by the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child.
   
  The principal human rights treaty in relation to women’s rights is the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). The rights include freedom from discrimination; the right to freedom from violence has been accepted in the right to freedom from discrimination. Australia is a party to this Convention (Appendix B).
   
  A prosecutor must ensure as far as possible that Aboriginal customary law is not used to curtail an Aboriginal woman’s or child’s right to individual safety and freedom from violence. Aboriginal women and children are Australian citizens and, as such, are entitled to the protection of the law.
   
  Prevalence of violence
   
20.5 Violence by Aboriginal men against their Aboriginal female partners or ex-partners is very prevalent in the Northern Territory. High rates of homicide are paralleled by high rates of assault among Aboriginal people in the Northern Territory.
   
20.6 Violence should not be condoned.
   
20.7 In many Aboriginal communities, fighting behaviour exists. Some of that fighting behaviour is accepted as a method of redressing wrongs and restoring social harmony. This is often referred to as payback. Payback events are generally distinguishable from other violence because they are confined by limits and rules. They demonstrate a level of constraint; there is supervision and an involvement of many Aboriginal people, including the families of the offender and the victim. There is also an absence of alcohol. Such violence is also referred to as traditional violence.
   
20.8 The importance of distinguishing between traditional and non-traditional violence must not be overlooked:
   
  When discussing violence against Aboriginal women, it should be noted that while it is important to distinguish between traditional and non-traditional violence, in practice it is often difficult to do so. Strictly speaking traditional violence refers to clearly defined and controlled punishments which were applied in cases where Aboriginal Law was broken, many of which are still in use in communities where traditional Law is followed. However, it may sometimes be used to describe violence which is not prescribed by Aboriginal law but which is condoned as a response to socially disapproved behaviour …
   
  One result of [Aboriginal women’s changed role today compared with pre-contact times] is that they are now subject to violence from their own men of a kind which would not have been countenanced in traditional society. As one woman remarked; ‘There are now three kinds of violence in Aboriginal society – alcoholic violence, traditional violence, and bullshit traditional violence’. Women are the victims of all three. By ‘bullshit traditional violence’ is meant the sort of assault on women which takes place today for illegitimate reasons, often by drunken men, which they then attempt to justify as a traditional right (A Bolger Aboriginal Women and Violence Australian National University, North Australian Research Unit, Darwin NT 1991:4, 50).
   
20.9 Further non-traditional aspects that are major contributing factors to contemporary violence are alcohol consumption, cannabis consumption and petrol sniffing.
   
20.10 There are other types of violence that should be classified outside of the defined boundaries of traditional violence - for example, domestic violence, child abuse, adult sexual assault and child sexual assault. There is a perception that Aboriginal people culturally condone sexual activity involving young Aboriginal girls; these young girls are entitled to the same protection afforded by the criminal law as any other young girls in the wider community.
   
  Aboriginal offenders
   
20.11 Aboriginal offenders are not to be treated differently from other offenders in the wider community. This means that such offenders will not necessarily receive lighter sentences because they come from deprived communities or impoverished circumstances. Offences of violence call for condign punishment. There is a need for the courts in the Northern Territory to protect the weaker members of the community, particularly Aboriginal women and children, from excessive violence - R v Wurramara (1999) 105 A Crim R 512.
   
  Aboriginal customary law and the courts
   
20.12 There is a lengthy history in the Northern Territory of Aboriginal customary law being taken into account by the courts on sentencing issues. Less often, pleas to lesser charges have been accepted because of the manner in which Aboriginal customary law has been seen to impinge on substantive trial defences such as provocation.
   
20.13 Evidence sought to be led by the prosecution or the defence should be put before the courts in a proper manner. Submissions from the bar table concerning Aboriginal law and cultural practices are not appropriate – Munungnurr (1994) 4 NTLR 63.
   
20.14 Whenever there is a direct conflict between the law of the land and Aboriginal customary law, the law of the land must prevail – Hales v Jalmilmira (2003) 13 NTLR 14.
   
20.15 At trial, it may be appropriate in certain cases for a prosecutor to call evidence of Aboriginal customary law as part of the Crown case or in rebuttal. Evidence may be called by a prosecutor from Aboriginal people, anthropologists or people who have lived closely with Aboriginal people, where that witness has the appropriate knowledge about a particular community (for example customs, language) in which the offence occurred.
   
20.16 Where Aboriginal customary law is raised by the defence, a prosecutor is entitled to cross-examine any witness called by the defence to test the reliability of the evidence. However, it is acknowledged that this may be particularly difficult where no indication is given to the Crown by the defence of what customary law defence will be run until the actual defence witnesses give evidence in court. Consideration should be given to an application for a short adjournment to enable the prosecutor to make appropriate inquiries concerning the appropriateness or otherwise of the Aboriginal customary law content.
   
20.17 Aboriginal customary law is not a specific factor a Northern Territory court must have regard to on sentencing issues in the Sentencing Act (section 5(2)). However it is regularly regarded as falling within the category of ‘any other relevant circumstance’ (section 5(2)(s) Sentencing Act).
   
20.18 If Aboriginal customary law is raised by the defence on sentence then the Crown is entitled to adequate notice from the defence on this issue and prosecutors should be familiar with section 104A Sentencing Act. A prosecutor must make diligent inquiries from appropriate sources when notice is received from the defence that they are relying on Aboriginal customary law in such plea matters. Such sources will be Aboriginal people, anthropologists or people who have lived closely with Aboriginal people, where that witness has the appropriate knowledge of the particular community (for example customs, language) in which the offence occurred. Sources should include Indigenous women as well as men, bearing in mind that women’s views are often overlooked and may vary from men’s views.
   
20.19 It might be decided by a prosecutor, after consultation with appropriate sources, that the defence witnesses are required for cross-examination and/or it might be decided that evidence should be called by the Crown. It is important that accurate information is presented to the Court. If undue expense is to be involved (eg costly travel, an expert anthropologist’s fees) then the Director’s approval must first be obtained.