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The Integration of Customary Law into the Australian Legal System: Calma

Aboriginal and Torres Strait Islander Social Justice

The Integration of Customary Law into the Australian Legal System

Speech by Mr Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner

National Indigenous Legal Conference

I’d like to begin by acknowledging the Gadigal people of the Eora nation, the traditional owners and custodians of the land where we are gathered today, and pay my respects to their elders.

I’d like to thank the New South Wales Bar Association and the Indigenous Barristers’ Trust - the Mum Shirl Fund - for providing me with the opportunity to speak today, and for organising this event.

I’d like to acknowledge the Chair of today’s proceedings, Mr Michael Slattery QC, the President of the New South Wales Bar Association, and Sir Gerard Brennan, Patron of the Indigenous Barristers’ Trust. Sir Gerard has made very important contributions – both as Chief Justice of the High Court of Australia, and in his retirement from that position - to the improvement of the well being of Indigenous peoples’ lives in Australia.

I’d also like to acknowledge my distinguished fellow speakers.

How pleasing it is to see so many Indigenous faces among you: students of law, para-professionals, lawyers and barristers, as well as so many non-Indigenous supporters here today. Throughout this presentation I will refer to Aboriginal customary law, though the points that I will make are equally relevant to Torres Strait Islanders. I have take out Torres Strait Islander only for ease of expression – so please accept that I mean all Indigenous Australians.

The theme of my address this morning emphasises the important role that Indigenous people have, to take charge of our own destinies. The maintenance and integration of Aboriginal customary law is an essential part of this.

It cannot be repeated often enough that a legal system must reflect the people it serves if it is to gain their confidence. And Indigenous Australians want greater confidence in the legal system.

We want to know that in its day to day operation, the legal system understands and respects our cultures, our heritage, and our histories. And that it is constructed in a way that is capable of providing justice for our people and communities.

Justice is not colour blind. Indigenous peoples have suffered greatly at the imposition of the ‘white man’s vision’ of justice over the history of our nation. It is misconceived to believe that justice can be delivered without due consideration being given to cultural factors.

I’d like to use the time available with you today to explore this issue, by considering the recognition of Aboriginal customary law within the Australian legal system from a social justice and human rights perspective. In doing so, I will also focus on issues relating to family violence and abuse - issues which have been reported with such distressing frequency of late.

I want to correct the perception that family violence and abuse is somehow condoned through Aboriginal customary law. Furthermore, I want to talk about how Aboriginal customary law, and support for strong, robust community governance structures, has a large role to play in overcoming issues of family violence and abuse, as well as other problems that beset some Indigenous communities.  

We need to look at issues relating to Aboriginal customary law within a broader lens. While Aboriginal customary law has great potential in terms of sentencing options within the context of the criminal justice system, importantly,it has great potential to deliver self-determination to Indigenous peoples. Customary law can be a means of self-governance and of dispute resolution – it is a way for communities to control their own lives.

The Founding Chairperson of the United Nations Working Group on Indigenous Populations, Professor Erica Irene-Daes, has described self determination as ‘the freedom to live well.’ In my view, the integration of Aboriginal customary law into systems of community governance as well as into the Australian legal system has the potential to assist my people to live well.

A community is most likely to have a healthy sense of order when control comes from agreed norms within. Over time, there is nothing more debilitating on a community than a lack of control, and an ongoing perception of a lack of ability among the people of that community to look after themselves. Aboriginal people are competent, capable people. We regularly achieve extraordinary things.

Recognising Aboriginal customary law is about recognizing our competence – and recognizing the strength that comes from our culture: the core of our identity.

I cannot remember a time when customary law has been the focus of so much media and political attention as has been the case over recent months. Various commentators have had a field day reducing the standing of customary law in the eyes of many Australians.

Moreover, you are probably aware that the Commonwealth Government is now seeking to amend section 16A of the Commonwealth Crimes Act to effectively exclude consideration of cultural background in sentencing discretion. I want to keep a watching brief on this for a number of reasons, not the least because of my position as national Race Discrimination Commissioner.

These particular amendments may potentially have a limited impact on Aboriginal customary law because they are limited to Commonwealth crimes which include amongst others, migration, national security, taxation and social security issues.

At this stage, the Commonwealth government ‘has invited the States and Territories to ensure like provisions are implemented in each jurisdiction.’ States and territories were encouraged to do so at the Intergovernmental Summit on Violence and Child Abuse in June this year. The Commonwealth has identified the bilateral agreements on Indigenous affairs which it negotiates with the states and territories as the vehicle for such a change to be made. This would likely see a link between changes to criminal codes and federal funding for Indigenous affairs to the states and territories.

Much pressure will be placed on the states to change – and if this occurs then there is potential for considerable impact on Indigenous sentencing. I will keep a watching brief on this.

I am uneasy about the debate surrounding the proposed amendments to the Commonwealth Crimes Act because of its focus on customary law and despite the fact that, the amendments impact on all cultural groups. The focus on customary law has the effect of changing public perception about customary law in way which discredits and distorts its intention and its application.

If you believed half of what you might have read or heard about customary law of late, you would be forgiven for thinking it is the soft version of the justice system, condoning sexual assault of Indigenous child brides.

You would almost certainly have no inkling that Indigenous customary law varies widely between groups of Indigenous peoples across Australia.

You would not understand that it is at best a comprehensive system of governance and order that already successfully regulates many different aspects of many Indigenous peoples’ lives.

You would have no inkling that customary law is not frozen in the past, but a living, changing system that reflects its times, and will continue to grow and change, just as the common law continues to grow and change.

There is little chance of maintaining existing consideration of customary law in the Australian legal system let alone chance of greater integration as long as it is perceived as a negative, backward force.

This week the Senate referred the Crimes Amendment (Bail and Sentencing) Bill 2006 to the Legal and Constitutional Affairs Committee for inquiry and report by 16 October 2006.

It is therefore timely to be developing clear evidence-based arguments to contribute to this debate. Until mid October there is a small window of opportunity to make submissions to the Committee.

According to Law Council of Australia the timing of these amendments relates to:

…recent public debate about the place of cultural considerations and ‘customary law’ within the Australian legal system … [and] persistent reports of violence and abuse within Indigenous communities and claims that Australian courts have contributed to this by imposing lighter sentences on Indigenous offenders on the basis of cultural considerations…

…The central argument put forward by proponents of removing ‘cultural background’ from the range of factors to be considered by the court is that there should be “one law for all Australians” and …. ‘cultural law is being manipulated in the courts’ to reduce sentences for serious offences.1

There have been some recent high profile cases where the courts have come under scrutiny for providing inadequate sentences for very serious crimes. One such case is the ‘promised bride case’, the Queen v GJ where the accused received a 24 month sentence with 23 months suspended for a conviction of sexual intercourse with a minor and aggravated assault. While the accused pleaded guilty to both charges, it was argued in mitigation, that he was exercising a customary right and that he was unaware that what he did was against the law. 

Now I want to make clear, taking promised wives by force is not customary.

In 2003, the Northern Territory Law Reform Commission undertook an inquiry into Aboriginal law in the NT. It found the following about promised marriage:

Generally speaking, the child is expected to understand the nature of the contract when she reaches puberty (say 12 or 13). There is then a process by which the child and her family affirm the contract and the girl goes to live with the family of the husband, but not usually with the husband at first. Sometime thereafter the girl goes to live with the husband as his wife. The girl can choose not to comply with the marriage agreement at any time prior to living with the husband. However it should be noted that the social expectations of all the families involved are that the marriage would normally proceed. Love marriages are recognised as a fact of life for the girl, her family and the community and thus the process for the girl and her family repaying benefits received in anticipation of marriage is also dealt with under traditional law.

While the courts have rightly come under some scrutiny for sentencing decisions such as the GJ ‘promised bride’ case at Yarralin, my concern is that customary law itself has come under scrutiny. The point here is that, not only is it faulty logic to discredit customary law on the basis of decisions made in sentencing, it is a retrograde step to reduce the recognition of a system of customary law as a consequence, when customary law in fact provides structure and order in Indigenous communities.  

If Indigenous communities are not supported to self regulate and if governments seek to reduce the standing of internal governance systems, then this has the potential to diminish that system of law within those communities. In addition, the non-recognition of customary law by Australian institutions further alienates Indigenous people from the Australian law, as it makes no recognition of our own justice system. 

If the government’s intention is to clarify and strengthen justice systems for Indigenous people, then it is logical that existing systems of law should be reinforced and strengthened. So far the Australian government has not implemented any of the findings of the comprehensive 1986 Australian Law Reform Commission report on Aboriginal Customary Law. The Commission’s nine year inquiry resulted in one of the most comprehensive and authoritative works on the subject. However, the recommendations of ALRC Report 31 have not been the subject of comprehensive responses nor implementation at the federal level.

The Report provides an excellent analysis of the topic we are discussing today. It asks and answers questions about the ways in which Aboriginal customary can be recognised within the framework of the general criminal law, and whether Aboriginal communities should have the power to apply their customary laws and practices in the punishment and rehabilitation of Aboriginal people. The Report has been described by the NSW Law Reform commission as a work of ‘quality and sensitivity… a comprehensive study of the issues involved the arguments for and against recognition of Aboriginal customary law, and the manner of such recognition.’ It also thoroughly documents relevant case law up until 1986.

I recommend this report to you and suggest that it can support some options for action for those of us here who would like to preserve and strengthen the standing of customary law.

I have three challenges that outline a strategy to integrate customary law into the Australian legal system and to strengthen and reinforce the operation of Indigenous customary law in communities.

My first challenge is to Indigenous communities. We have a task to proactively educate Australian society about customary law and we must reclaim the customary law debate if we want the wider community to accept this system of law.

Customary law is hugely empowering in many Indigenous communities because it is a form of social organisation and justice that maintains and sustains traditions that go back millennia. Customary law is part of a wider ideological framework – a world view – and one that is very different from contemporary Australian social customs and norms.

The Native Title Act 1993 is a defining piece of legislation in terms of customary law. As a statute that had its evolution through common law, it is the ultimate recognition that Indigenous Australian societies possessed, and continue to possess, well-developed systems of law.

These systems of law include diverse kinship systems and traditions and connections to land that are current and practised throughout Indigenous Australia. Many of my people understand their world and their relationships through the moiety system and the skin group system. It is a complex framework and I am not able to do justice in my explanation this morning, though I have no doubt that Rev Dijyinni, Alan Maritja and Richard Trudgeon will do so after I have finished my presentation.

Put simply, in a large number of communities all people, plants, animals, songs, dances, ceremonies and land are divided into groups, or moieties. In Arnhem Land in the Northern Territory for example, the moieties are Duwa and Yirridja. Each moiety is subdivided into eight 'skin' groups. A child's skin group is determined by their mother's skin group but they inherit their moiety from their father.

The people of central Australia also have dual moiety systems - the 'sun side' and the 'shade side' and this exists across most of the central desert region. Most language groups in the centre also have either four to eight skin groups, though no all, the Warlpiri for example have sixteen. The Pitjantjatjara have moiety groups –'our side', and 'their side’ – but don't have skin groups.

In giving evidence to the Northern Territory Law Reform Committee of Inquiry in 2003, one central Australian woman explained kinship thus:

Customary law is what I am; the essence of an Aboriginal person is customary law. It controls you completely and wholly, not in an imprisoned way but in the way that it cares for you completely and that means holistically.2

Ones’ kinship sets out clear rules for association and defines how people must relate to each other. Through the skin group identity, people identify others around them as mothers, fathers, uncles, aunts, cousins and potential marriage partners. Almost every aspect of day-to-day communication with other Aboriginal people is governed by kinship ties. The kinship system determines who marries who, ceremonial relationships, funeral roles and behaviour patterns with other kin. I can’t emphasise the importance of kinship enough.

Because of the kinship system, property crimes in Indigenous communities are rare. In fact, most objects can be borrowed. While the borrowing or taking of objects is sanctioned, kinship obligations are very specific about what is required in relation to extended family members. 

It may seem strange from some urban perspectives to imagine that this kinship system operates. One of my staff recently went to the Tiwi Islands as part of her work for the Commission. Her job was to talk to young people about education. She knew that she would have to consult with boys separately from girls, but she wasn’t prepared for the fact that when the groups of students filed in, boys of six and seven years old sat next to boys of twelve and sixteen. The students did not sit together based on their age groups. When she asked them why they were sitting in such unusual configurations – they replied – ‘we are in our skin groups Miss.’

The kinship system is profound to the extent that in many communities non-Indigenous teachers and health staff who live in the communities are adopted into kinship systems so that the students and other Indigenous community members know how to relate to them.

Customary law is integral to this system. It maintains the fabric of traditional society. To remove it is to remove the traditions that hold together Indigenous societies.

As mentioned, I am not an expert in customary law - but I will say this much, our first major task is to educate the Australian society about Aboriginal customary law. We can’t allow misconceptions and misinformation to bias the wider Australian community. To put it crudely, we have to fight the public relations debate first – we have to be out there challenging the misinformation and accurately informing the wider public. This message needs to be put to politicians, to government departments, to the courts as well as to the wider society.

In correcting the misperceptions about customary law we must also state clearly that Indigenous women and children are entitled to live without fear of violence or abuse. This is their cultural and human right. 

We should be speaking of the perpetrators of violence and abuse as people who do not respect customary law. We need to be continually countering the false claims that customary law is itself the problem. Our voices need to be heard – and the voices of those who practice customary law need to be part of this discourse.

How do we do this? It can be done by providing structured mentoring to elders and leaders to support them in speaking about customary law – both to the Australian public, and also within their own communities.

An information campaign is essential, supported by both urban and remote Indigenous people. By this I mean that all of us here, within our respective organisations and roles should take every opportunity to clarify and correct misconceptions about Aboriginal customary law. We need to take to any and every public platform to provide an accurate definition of customary law and its role in Indigenous society. And the message has to be taken out to remote Australia. Most Indigenous people out in communities don’t know that there is a debate about customary law – let alone that the Australian government is in the process of implementing the Crimes Amendment (Bail and Sentencing) Bill 2006 which is aimed to remove customary law from bail applications and sentencing. How can they defend customary law when they are not part of the debate?

Indigenous people, communities and our law and justice agencies need to take back control of the agenda and the debate about customary law. There is the risk that as the Australian government removes customary law from the Australian legal system, it will be diminished within communities and an internal system of governance will be lost. Communities have a right to their own internal governance, to be self determining, and to be able to defend a system from those who will discredit it. But they need to be empowered to speak out about it.

We must work together to skill Indigenous Australians who practice and live by customary law to communicate this information to the wider public. We must not lose sight of the fact that our brothers and sisters in remote communities need to be kept informed about wider debates. Our task is to assist them to have a voice on this issue, as well as maintaining our own voice in advocacy.

Now my second challenge is almost a mirror image to my first – it is about educating all Indigenous Australians about human rights standards and about the Australian legal system.

Just as many Australians have little understanding of Indigenous knowledge systems and systems of law, many Indigenous peoples across Australia have a very limited understanding, or a narrow perspective of the Australian legal system.

In my discussions with various stakeholders, I am reliably informed that that there is limited, if any information reaching many communities, particularly remote communities, about the Australian legal justice system and about individual civil rights as defined by human rights standards. Overall, the general level of information about rights, responsibilities and obligations under human rights and Australian law, is poor. The limited information that many Indigenous people have with regard to the law is when they come into contact with it as offenders, or as the families of offenders.

In a changing society, it is essential that Indigenous peoples are aware of the systems of law that govern us – the Aboriginal customary law framework, and the Australian legal justice framework. As we know from our own experience – you have to know the law in order to be able to comply with its rules and obligations.

We must work to create an interface between the two worlds and the two justice systems.

In a statement with regard to the GJ ‘promised bride’ case, the Court of Criminal Appeal of the Northern Territory noted that ‘consultation with Aboriginal communities has too often been perfunctory’ and suggested that it may be appropriate for HREOC implement ‘educational programs about (conflicts between customary law and criminal codes) in Aboriginal communities’.

Human rights education is a vital part of an educative process to bring systems of knowledge together. For example - and while the parallel is not exact -  if I can wear my other hat for a minute, that of Race Discrimination Commissioner - my office is currently engaged in developing human rights resources for teachers, and community leaders to address discrimination in Muslim communities. While the Australian government considers that focusing on universal human rights can assist in building cohesion and reciprocal understanding across diverse cultural groups - the same sort of projects have not been funded for Indigenous peoples and communities.

I have put my hat in the ring to provide this form of education. Last year and again this year I submitted New Policy Proposals to government to undertake human rights education for Indigenous peoples. Unfortunately these bids were not funded. But this does not mean that we take the heat off government. I plan to keep putting forward this proposal because it is necessary, and because we need to take this message out to Indigenous individuals and communities.

The bridge needs to be formed between black and white, urban and remote, and between young and older generations. In some communities the younger generations are being informed about the Australian legal systems and their civil rights through school education while the older members of communities do not have the same access to formal education. A disjunction in knowledge and information-access is emerging between the generations. This means that there are different levels of understanding within communities.

If I can take you back to the customary marriage example, marriage into the right skin group is still extremely important in many Indigenous communities. A wrong marriage disrupts the social order and makes it difficult for people to maintain good relationships. It can have implications in terms of customary law. By the same token, traditional marriage also requires consent – it requires a process of education whereby those who are betrothed go through careful preparation before marriage.

Under Australian law, one or other of the betrothed parties cannot be forced together in marriage. Traditional law does not support such force either. But Indigenous Australians who practice customary law need to have a clear understanding of what constitutes consent, both in fact and in law. Education about consent is routinely reinforced in urban communities through television campaigns such as the ‘No Means No’ advertisements, and consent messages continue to be an important component of school curricula. We need to be sure that these same messages are being appropriately transmitted right across Australia in a language and a format that is understood by diverse Indigenous communities.

Societies change and different norms evolve over time, and this is precisely why the common law system is designed to reflect changing societal customs and norms. The same is true with customary law. Telecommunications is bringing new cultural messages to places that did not have access to this form of information ten or fifteen years ago. In some instances young people are rejecting the customary way of life. This too must be respected and brought into balance at the community level.

We need to make clear that the different legal systems are not at cross purposes. One must support the other.

There is an absence of balance in the customary law debate. If properly reflected, many Indigenous people would argue that it is the absenceof customary law that creates disharmony. Customary law has become the culprit or the cause of problems such as violence when in fact what is lacking is clear information to provide a framework for understanding and practicing lawful behaviour within the different systems.

My challenge for this section is that we need to take education and information about human rights and the Australian legal system to Indigenous people across Australia. The further challenge is to ensure this information is relevant and culturally comprehensible.

I will continue to argue the need for human rights education as it provides excellent guidance in building the bridges between Aboriginal customary law and the Australian legal system. I ask you to support me in this endeavour and to take this message of education out far and wide to see what other organisations can do to this end.

My third challenge is to all of us here – and it is about improving the quality of the debate. We need to be in the business of moving the customary law dialogue from a simplistic and superficial analysis of two legal systems at odds, by taking a well informed message out to the world that presents an accurate view of Indigenous knowledge systems and systems of law and justice. There are ways in which these systems can co-exist. Some excellent work has been done to this end, and we all have a responsibility to ensure that the available research is not ignored.

I think the first step to fulfilling this challenge is to acknowledge that the Australian legal system cannot, does not and will not exclusively support Indigenous justice in communities where customary law practices endure. 

While I know this is not an ‘either or’ situation, I do want to emphasise the limitations of the Australian legal system as a sole instrument to ensure justice in Indigenous communities.

First, I observe that many communities operate despite the non-Indigenous legal system or effective policing of any kind. While I don’t have national statistics on the number of communities without police, out of 40 Indigenous communities across central Australia, only eight have some sort of police presence. Four of these communities do not have a police station in the community, only close-by. Some police stations are at least a two-hour drive away.3

Certainly, if there is one thing that the statistics on family violence and child abuse in communities highlights to date, it is the failure of the non-Indigenous legal system to effectively support communities requiring intervention.

Second, while it has been open season on customary law, few commentators have chosen to reflect on the failures of the criminal justice system in its relationship with Indigenous people.

There is cause to reflect on this, particularly this year, the 15th anniversary of the report of the Royal Commission into Aboriginal Deaths in Custody. This report highlighted deficiencies across a non- Indigenous legal system that was literally killing too many of the Indigenous people who came into contact with it; and a report for which far too few of its recommendations have been implemented.

In fact little has changed in the fifteen years since the report was published. Indigenous peoples’ over-representation in prisons has worsened and new problems have emerged. Indigenous women and young people are being incarcerated at record rates, and the rates are growing alarmingly, and the number of Indigenous deaths in custody has actually increased over the period 1991 to 2002.4

As has so often been observed, the separation between Indigenous 'victims' and 'offenders' is not clear. In reality many Indigenous people in the criminal justice system are both offenders and victims, just as - tragically - much of the violence perpetrated against Indigenous people is by other Indigenous people; many of whom have been victims too.

According to the Australian Bureau of Statistics, there were 5,662 Indigenous people in jails across Australia in the December quarter, 2005. This constitutes a rate of 2,024 per 100,000 of the adult Indigenous population. By comparison, the average daily imprisonment rate for all Australians is 155 prisoners per 100,000 of the adult population.5

Approximately 22 percent of prisoners in Australia today are Indigenous6  while in 1991 when the Royal Commission reported; Indigenous peoples comprised 14 percent of the prison population.7

There is obviously a debate that needs to be had to address the complex issues regarding Indigenous justice and law, but complex issues require well thought out solutions. The best solutions in cross cultural settings are multi-faceted. They do not favour one system to the exclusion of the other.

In terms of law and order issues in communities, one cannot neatly separate out what are the causes and what is the effect. What we can do however, is look to what has worked, and look to examples where there have been positive outcomes. We have to take the guess work out of approaches. There is too much at stake. There is an urgent need for well evaluated data that tells us what we can expect under certain preconditions.

So where are the solutions? In my view they are evolving, though I think there are some good examples that we can look to.

In 2004 the Northern Territory Government took steps to address deficiencies surrounding the introduction of customary law into the criminal justice system through the introduction of a formal mechanism for raising issues relating to customary law in sentencing Aboriginal offenders. The laws provided that the court could only receive such information if the party that wishes to present the information gives notice to each other party and each of the other parties has an opportunity to provide a response. Further, the customary law information is then presented in the form of evidence on oath, an affidavit or a statutory declaration.

The Sentencing Amendment (Aboriginal Customary Law) Act 2004 (NT)8 was made in response to recommendations from the NT Law Reform Committee. Its intention was to prevent the introduction – by non-Indigenous lawyers in the main – of information to the courts that was ill-informed or incorrect in terms of customary law.

I would also like to direct you to the work of the Law Reform Commission in Western Australia that recommended this year that customary law should be taken into account when Aboriginal people are sentenced for crimes. The Law Reform Commission found that the coexistence of two legal systems in WA means that Aboriginal offenders, particularly in remote areas, will essentially be punished twice unless the Australian legal system appropriately accommodates customary law in sentencing.

At the time of the release of the report, the WA Attorney-General, Jim McGinty, called the report a "breath of fresh air" that will help empower Indigenous communities. The WA Attorney-General has most recently been critical of the Commonwealth’s proposed amendments to the Crimes Act.

There are other voices that are speaking about the need for dialogue regarding changes to Indigenous policy and law. The Chairpersons, CEOs and Principal Legal Officers of all Aboriginal and Torres Strait Islander Legal Services across Australia issued a press release in June this year calling on the Australian Government to involve them in any discussion on changes in legal policy for Indigenous peoples.

This issue of consultation and the need for active meaningful participation is very important as we are seeing too many changes to legislation affecting Indigenous Australians without adequate consultation or participation by those affected. In past months the Commonwealth government made amendments to the NT Aboriginal Land Rights Act with limited negotiations about some provisions, and no negotiation about others. These amendments will have a lasting and negative legacy. An emerging standard at international law is that of free, prior and informed consent. This standard is contained in the Draft Declaration on the Rights of Indigenous Peoples that will be presented to the UN General Assembly for vote and ratification this year.

As people working in the law here – we need to put to governments and the public the legal arguments, and emphasise that the legal system does have checks and balances. We need to argue that public prosecutors have consistently appealed cases where inadequate weight was given in sentencing with regard to the seriousness of the offence. And importantly, where sentences have been manifestly inadequate, appeal courts have rectified sentences – as they did in the Yarralin ‘promised bride’ case.

The Law Council of Australia outlines the context for considering custom in sentencing.

In the context of an Indigenous offender, it is relevant to consider whether the offender observes a traditional lifestyle and lives according to the customary laws of his or her community. In some cases, evidence of the customary background of the offender may mitigate the severity of the offence, and corresponding punishment. It may in some circumstances also be a relevant consideration that the offender has undergone traditional punishment in accordance with customary law.

Evidence may also be admitted concerning whether the offender had consented to, or received, ‘payback’ or other traditional punishment.9

Culture and context are important aspects of mitigation. By ignoring payback, Indigenous offenders are put in a situation of double jeopardy. These matters are balanced against community concerns such as the importance of protecting vulnerable members of the community and providing a reasonable deterrent against such behaviour.

Human rights standards provide an appropriate balance between the interests of individuals and Indigenous group interests.

The International Covenant on Civil and Political Rights sets out that:

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.10

The Committee on Civil and Political Rights (ICCPR )makes clear that in the enjoyment of Article 27, …. no State, group or person is to violate the right of women or other groups to the equal enjoyment of any Covenant rights, including the right to equal protection of the law.11

The provisions of the ICCPR are to be read consistently with the interpretation of similar relevant rights under other conventions. So, for example, Article 27 should be read consistently with the provisions of the International Convention on the Elimination of All Forms of Discrimination Against Women.

The Committee on the Elimination of Discrimination Against Women (CEDAW) has noted States are required to act to protect women against violence of any kind occurring within the family, workplace or any other area of social life. Further, should there be traditional attitudes which subordinate women, including forced marriages, these will breach that Convention.

So here we have clear direction that under the provisions of ICCPR, to which Australia is a signatory, minority groups have the right to enjoy their own customs within a framework of other group interests and rights such as those provided under CEDAW.   

We have domestic legislation that implements international human rights standards. The Racial Discrimination Act 1975 (Cth) (RDA) implements Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination. Similarly, the Sex Discrimination is in part based on, and annexes the Convention on the Elimination of All Forms of Discrimination Against Women.

It is this form of education that I propose we take to communities – to explain the differences between the systems and the balance between the systems.

As well as proposing new programs for action, let’s make sure we continue to support existing programs that work and promote them in public forums. Yesterday you would have heard from Circle Sentencing (NSW), the Murri Court (Qld), the Koori Court (Vic) and the Ngunga Court (SA). The engagement of Indigenous communities in sentencing processes is a very encouraging development, as is the broader acceptance of restorative justice processes and the increased focus on diversionary schemes.

In concluding I want to leave with you with what I think are some interesting data. ABS survey statistics on Indigenous 15 to 24 year olds provide evidence that customary systems of law are enduring and strong. The survey results, just four years old, to my mind prove a powerful case to strengthen customary law within communities, and to do so in conjunction with human rights and Australian law education. In 2002:

62 percent of Indigenous young people recognised their homelands/traditional country; 47 percent reported that they identified with a clan, tribal or language group; and 66 percent had attended a cultural event in the last 12 months. For each of these measures of cultural attachment, higher rates were reported in remote areas.

Similarly, Indigenous languages were more commonly used in remote areas. Overall, one-half (yes 50 percent) of Indigenous young people in remote areas spoke an Indigenous language, compared with 6 percent in non-remote areas. The proportion for whom an Indigenous language was the main language spoken at home was 37 percent in remote and 2 percent in non-remote regions.12

The Indigenous population is growing, and the connection to culture is enduring.

Despite the chorus of claims that declare that self-determination is a ‘failed experiment’, in my estimation, it has never really been put into practice in Australia post-colonial contact. For too long Indigenous peoples have been administered and governed, or part administered and governed, by others. As was stated in the Royal Commission into Aboriginal Deaths in Custody report:

We require a fundamental shift in the mindset of governments and Indigenous communities.  This shift is from an approach that seeks to manage Indigenous disadvantage and dysfunction, to an approach that supports and builds functional communities.13

An imposed order - or control from outside - is not a sustainable kind of order. When an individual or a community is able to exercise control over their environment, then these are the pre-conditions to create a society where Indigenous people ‘have the freedom to live well.’   

From self respect comes dignity and from dignity comes hope.

Thank you.

[1] Recognition of Cultural Factors in Sentencing, June 2006 Law Council of Australia submission to Council of Australian Governments

[2]  Rosalie Kunoth-Monks in discussion with the Committee of Inquiry on 15 May 2003

[3] Australian Broadcasting Corporation TV PROGRAM TRANSCRIPT, LOCATION:, Broadcast: 15/05/2006

[4] Reference: Australian Bureau of Statistics 1301.0 - Year Book Australia, 2004

[5] Reference: Australian Bureau of Statistics, Corrective Services - December quarter 2005, Cat 4512.0,$File/45120_dec%202005.pdf.

[7] For an overview see Social Justice Report 2001, Chapter 1.

[8] Law and order legislation in the Australian States and Territories: 2003–2006 by Lenny Roth Briefing  Paper No 12/06

[9] Recognition of Cultural Factors in Sentencing, June 2006 Law Council of Australia submission to Council of Australian Governments

[10] The International Covenant on Civil and Political Rights: Article 27

[11] The recognition of Aboriginal customary law, Dr William Jonas AM, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission (HREOC)

[12] 4102.0 - Australian Social Trends, 2006 – Young Aboriginal and Torres Strait Islander Survey: Australia's Indigenous Youth

[13] Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 1