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NT Criminal Lawyers Conference

Discrimination Sex Discrimination

Three legal systems but still no

- Aboriginal Family Violence and
the Challenge of Reform

Speech by Pru Goward, Federal Sex
Discrimination Commissioner at the NT Criminal Lawyers Conference, 1st July

  • Chief Justice, Judges
    of the Supreme Court of the Northern Territory, ladies and gentlemen. Thank
    you for inviting me here today.
  • I’d like to recognise
    the traditional owners of this land, the Kuku-Yalanji people.
  • I am delighted to have
    been given the opportunity to address the Northern Territory Criminal Lawyers
  • Public attention has
    recently focused on the Pascoe case, in which a young Aboriginal girl stands
    at the intersection of three legal systems - all with something to say about
    her body and her rights.
  • Those three legal systems
    are our national system of laws, including criminal law; international laws,
    such as human rights laws; and Aboriginal Customary Laws.
  • Criminal laws are fundamental
    statements of what is unacceptable to the wider community.
  • Aboriginal Customary
    Laws underpin indigenous cultures and provide effective governance frameworks
    for communities. These should be supported, both for the benefit and continuation
    of those cultures and the diversity and culture of Australia as a whole.
  • International treaty
    obligations provide us with aspirational human rights principles we commit
    to recognising when we ratify international human rights treaties.
  • They also provide complaints
    mechanisms under the ICCPR, CERD and CEDAW that remedy breaches of human rights
    in these Conventions. Australia, however, has not signed the Optional Protocol
    to CEDAW.
  • I am not going to speak
    directly about the Pascoe case today, but about some of the mainstream and
    Aboriginal Customary Law issues it raises.
  • I am reluctant to discuss
    the Pascoe case because I believe that focusing on a single incident distracts
    from the problems that lie at the heart of the status of Aboriginal and Torres
    Strait Islander women, in particular the problem of violence….

    so pernicious and persistent it should be shocking Australians into action;

    that despite its perniciousness persists in the face of three legal systems
    that each claim to outlaw it;
    that continues to have a devastating impact on the lives on many indigenous
    …Daily violence
    that stops Aboriginal women from functioning as full members of communities,
    that diminishes their status and their dignity.

  • The extent and seriousness
    of violence against Aboriginal and Torres Strait Islander women and children
    has been well established in a number of government and community reports
    – it is at a crisis point.
  • It has been described
    by the Queensland Aboriginal and Torres Strait Islander Women’s task
    force on violence as “immeasurable”.
  • Although Indigenous
    family violence is recognised as a problem by Australian society it is not
    given the attention it desperately needs.
  • As one woman said to
    me at an Aboriginal Women’s Forum in Darwin, “we find the money,
    will and resources to deal with crises such as SARS but we don’t have
    the resources to combat the immediate crisis of Indigenous family violence”.
  • How can this be when
    Aboriginal women are supposed to enjoy the same legal protections as other
  • How can this be when
    there are so many laws - Aboriginal Customary Laws, national and international
    laws - available to Indigenous women to protect their rights to liberty and
  • Are there any changes
    that can be made to these laws that would make any difference?
  • Each of these legal
    systems deserve respect. The challenge facing any modern state which is also
    part of an international community is to find a way of respecting each that
    does not derogate from the basic principles of another.
  • No one system is perfect
    and each highlights the gaps in the other. Where there is conflict between
    laws, this is a sign that things may need to be negotiated and changed.
  • Integrating Aboriginal
    Customary Law with Australia’s criminal legal system is perhaps the
    archetypal challenge in this respect.
  • Clearly there is scope
    for conflict between the three approaches.
  • Resolution of this
    conflict occurs as custom and law adapt to general social change over time,
    but usually entails a case by case approach.
  • While there are many
    areas where the three legal frameworks can and do work harmoniously together,
    this has not been the case for victims of domestic violence.
  • So often there has
    been silence, or it has been put in the too hard basket or relegated to short
    chapters at the end of reports about Aboriginal disadvantage.
  • In the criminal justice
    system, effective responses to domestic violence took a long time to establish
    and even longer to implement fully.
  • Domestic violence for
    far too long was seen as a private matter within the family, and law makers
    and enforcers were hesitant about intervening.
  • For many years, the
    international human rights system did not recognise protection from violence
    as fundamental to women’s rights.
  • In fact, it was only
    in 1992 that human rights bodies confirmed that violence is a form of discrimination
    against women to which CEDAW applies.
  • And under Aboriginal
    Customary laws, broken down by colonisation and social problems, Aboriginal
    and Torres Strait Islander women are not being protected from violence.
  • At times they even
    have to suffer the experience of hearing that their bashing at the hands of
    a man is traditional law.
  • What has happened to
    Aboriginal women is the socio-legal equivalent of being in the Bermuda triangle
    - that point where customary law, criminal law and international human rights
    obligations supposedly intersect to protect Aboriginal women from violence
    but instead plunges them into a void without any protection.
  • Ironically, Aboriginal
    family violence has persisted - and many would say has escalated - during
    a period when Australian governments would claim credit for the better integration
    of traditional and criminal law.
  • During a time when
    traditional law is probably more respectfully viewed by governments and the
    courts than at any other time in modern Australian history.
  • That has to change.
    If the answer is better integration, then it clearly has to be very different
  • We have to begin by
    declaring that a woman’s human rights, like a man’s are not negotiable.
  • We have an obligation
    to ensure each woman’s rights to safety and freedom from violence.
  • Some argue that this
    raises the potential for conflict with the minority rights of Indigenous peoples
    to retain and enjoy their culture.
  • However, Aboriginal
    and Torres Strait Islander women say that protecting culture does not mean
    protecting family violence.
  • After all, Aboriginal
    family violence is not part of Customary Law.
  • As part of a HREOC
    submission on Aboriginal Customary Law in the Northern Territory, my officers
    and I recently travelled to the Territory and spoke to women living in a range
    of community types about their views on Customary Law.
  • We continually heard
    that family violence was not part of Aboriginal Customary Law, and that it
    is unacceptable to women living in urban and rural, traditional and non-traditional
    Aboriginal communities.
  • The argument that a
    man bashing a woman is “Customary Law” is still one that is commonly
    made by defence lawyers to minimise punishment for Aboriginal men.
  • It is very difficult
    for women to hear this argument, which they know to be wrong, used in such
    a way.
  • We heard that men “use
    tradition as a shield and they hide behind it”.
  • We heard that in the
    past Elders would speak to men about violence and the problem could be solved,
    but that now Elders are over burdened and sometimes ignored. For example,
    one woman on Groote Eylandt told HREOC:
  • “If a man belt
    up a woman in those days his grandfather used to talk to him and he would
    get a spear. That man used to listen to his Elders and go by law and custom.
    Even women. He would listen to his grandmother”.
  • We must not turn a
    blind eye to this issue as a problem for Aboriginal and Torres Strait Islander
    people alone and we must not accept Customary Law as an excuse from violent
    men to continue their behaviour.
  • While most of the women
    we spoke to believed that traditional law was important and should be honoured,
    some of those living outside of traditional communities thought that Aboriginal
    Customary Law did not offer much to women, particularly in terms of protection
    from violence and sexual assault.
  • “Leaving it to
    the community” said one women “depends on the community”.
  • Most women wanted stronger
    responses to domestic violence, with mainstream law taking at the very least
    a “safety net” role in protecting women and children.
  • However some women
    also had serious doubts about the capacity of the mainstream legal system
    to deal with issues of violence effectively.
  • They said that the
    white system “just grinds along” or that when the case fails to
    satisfy various legal hurdles the community is left to pick up the pieces.
  • Clearly, neither Aboriginal
    Customary Law nor criminal law has the confidence of Aboriginal women when
    it comes to full protection from violence.
  • Criminal justice statistics
    confirm that Aboriginal women are right to feel doubtful.
  • So great and widespread
    is the problem of domestic violence, it needs to be one of the bench marks
    for testing any propositions for further reform.
  • Ensuring women have
    a place in any review of Aboriginal governance must help to raise these issues
    and improve upon the solutions.
  • During my discussions
    with women in the Northern Territory, the women were very clear that their
    voices should be heard. They had strong views on the roles of traditional
    and criminal law.
  • Too often in the past
    they have not been heard; they have been insufficiently consulted or included
    in the development and implementation of laws, policies and programmes that
    related to their communities.
  • As part of my submission
    to the Northern Territory Law Reform Committee I identified a series of principles
    to inform the development of any proposal to recognise Aboriginal Customary
    Law and ensure gender is central to the proposal.
  • I would like to share
    those principles with you. They emerged from my discussions with women from
    Aboriginal communities and other interested parties in the Territory.
  • They are common sense;
    we need to come back to basics as a way of helping us avoid the mistakes of
    the past.
  • Principle 1: A community
    based approach – measures to recognise Aboriginal Customary Law need
    to be tailored to meet the needs of the particular community.
  • They should be developed
    at the community level, rather than imposed from above and involve local people.
    External people brought in to work with a community should also have knowledge
    of that community.
  • As I said, it’s
    about solving real problems, not theoretical ones.
  • Principle 2: Ensuring
    women’s involvement – there must be a role for women in the development
    and implementation of any measures.
  • It is not enough to
    set up structures and expect women to be involved. Barriers to their participation
    must also be considered and addressed.
  • Principle 3: Recognising
    the importance of individuals – any proposal should identify and involve
    key individuals in a community and support them in their role.
  • Particular individuals
    can be crucial to the success of programs and the wellbeing of a community.
    Failure to support such individuals can lead to their withdrawal or loss.
  • Principle 4: Adequate
    resourcing – any proposal to recognise Aboriginal Customary Law should
    be adequately resourced, both within a community and to allow its extension
    to other communities.
  • This should include
    resourcing for training, pay and structural and administrative support, and
    must be provided on an ongoing basis.
  • Aboriginal people should
    not be expected to take on voluntary and onerous community work and unpaid
    overtime to an extent that is not expected of non-Indigenous people.
  • Principle 5: Consultation
    – ensuring proper consultation prior to the introduction of any proposals
    is crucial.
  • This must include consultation
    with women. It is astounding how often the simple principle that women be
    consulted is ignored.
  • Principle 6: A staged
    approach – implementation of any proposals or measures must reflect
    the capacity of individual communities.
  • In some communities,
    Aboriginal Customary Law may be operating well and there may be strong community
    leaders. In other communities, this capacity will need to be developed.
  • Principle 7: Mainstream
    law as a safety net – Aboriginal women must be able to access mainstream
    law in cases involving violence, including where a Customary Law approach
    has failed.
  • These principles provide
    a good starting point.
  • It is clear that both
    Aboriginal Customary law and the criminal legal system fail Aboriginal and
    Torres Strait Islander women and children who are victims of violence. International
    law often gets forgotten altogether.
  • The problem before
    us is not one of legal theory. It is not about how better to integrate the
    criminal justice code with traditional law.
  • The problem is an unacceptable
    level of Aboriginal family violence and how the better integration of the
    criminal code with traditional law and international treaty obligations can
    help fix it.
  • That is why the principles
    I have identified are neither legal nor anthropological but functional.
  • Making Aboriginal and
    Torres Strait Islander women safe from harm has to be the first priority of
    any further reform of the governance systems under which Aboriginal people
  • It takes us right to
    the heart of the problem of living with two cultures. Not to do so is to condemn
    Aboriginal and Torres Strait Islander Women and children to a continuation
    of the misery of violence.

updated 25 August 2003.