On September 30, after a week or so of discussion in the media of the possible resolution of the recent and tragic dispute at Yuendumu, The Australian ran this editorial with the header “When tribal punishment is just an excuse for crime”.

The Yuendumu dispute arose from the death in Alice Springs of a young man, which was followed by what were described as “riots” at Yuendumu that saw vehicles and houses damaged and several people suffer injuries.

Of particular interest to the media was the possibility that the sanctions under the relevant law at Yuendumu may involve some form of “traditional” punishment under Aboriginal customary law — perhaps a physical assault or a ritual spearing in the leg.

Rather predictably the notion that people may have a system of laws different to that of the dominant culture got some of the media rabbits running — and it was sadly predictable that The Australian would lead the charge with its editorial.

The editorial’s first two pars are, for present purposes, relatively uncontentious. But it is the third par that really caught my attention. It reads:

“It is true that there are remnants of customary law in some indigenous communities, that there are old men who still understand the rules and their application. For a long time, these elders were the custodians of the culture, highly skilled practitioners of an ancient tribal system of justice. And there have been times when retaliatory spearings, enacted with the tacit approval of police or other authorities, have been effective in settling trouble. But payback is now more often than not a distorted version of tribal justice, an excuse for random and destructive violence.”

The Australian presents no evidence in support of this extraordinary statement — leaving the reader to assume that in contemporary Aboriginal communities customary law is but a “remnant” of a failed culture knowledge of which resides only in the minds of a few old men.

Nothing could be further from the truth — as The Australian should know.

And The Australian wasn’t about to let a few inconvenient facts — and the opinions of any number of legal academics, the Law Council of Australia, the prosecutorial guidelines of the Northern Territory Director of Public Prosecutions, the 2003 Report of the NT’s Law Reform Committee, the 2006 Report by the West Australian Law Reform Commission, the comprehensive 1986 report by the Australian Law Reform Commission or this very useful paper prepared by the immediate past Chief Justice of the Supreme Court of the Northern Territory, Brian R. Martin, get in the way of a “good story”.

If The Australian says it, then it must be true. Well, perhaps not.

There are any number of quotes that I could take to refute The Australian’s assessment but this, from the NT’s Director of Public Prosecution’sGuidelines” will suffice for now:

“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 … Aboriginal men and women may also interpret customary laws differently; they may have competing views regarding what should prevail in those particular circumstances.”

The Australian editorial then goes on to make the convenient mistake of conflating the contemporary practice of customary law in the NT, the sentencing processes of the Courts and the justification for the 2007 Howard/Brough NT Intervention and accompanying legislation:

“The crisis of child abuse was behind the Howard government’s move to legislate to prevent judges taking account of customary law when passing sentence. The issue had come to prominence after a 55-year-old Aboriginal elder was sentenced to a month’s jail for having an-l s-x with a 14-year-old girl who had been promised to him as a wife. Northern Territory Chief Justice Brian Martin, who had sentenced the man, later admitted he had made a mistake by placing too much emphasis on the man’s tribal beliefs.”

Unfortunately for The Australian’s thesis there was no relationship between the sentencing of The Queen v GJ (the case The Australian refers to — see the decision of the Court of Criminal Appeal here) or the moves by the federal government to restrict the application of customary law as a consideration in sentencing.

As then NT Chief Justice Brian R Martin pointed out in his 2007 paper:

“The amendments to the Commonwealth Crimes Act do not appear to have been prompted by the decisions in GJ. The catalyst appears to have been the prominent attention given by the media to a paper by Dr Nanette Rogers, a Territory Prosecutor working in Alice Springs, delivered at a Conference of the Police Commissioners in October 2005.

Notwithstanding criticism of the original sentence … it does not appear that there was any significant push to amend the Commonwealth Crimes Act until the interview with Dr Rogers on the Lateline program was aired on 15 May 2006. It might not be stating it too highly to say that the Lateline interview was followed by a media and political frenzy.

It is interesting, and sad, to reflect that the information aired by Dr Rogers was well known through past research papers and the experiences of police, medical personnel and others working in the field, and through cases in the criminal courts, yet it took media exposure of Dr Rogers’ paper, particularly in relation to s-xual abuse of young children, to prompt a legislative reaction.”

The Australian editorial goes on to link the role and application of traditional laws to criminal acts and to damn the relevance of long and commonly held belief systems that guide the lives of a majority of Aboriginal people in the north and centre.

The Yuendumu incident is a reminder of the problems generated when indigenous customs are invoked to disguise illegal behaviour or to undermine the rights of others. While cultural and social context should always inform the work of our courts and police forces, customary law can have no place in our legal system.

Readers will recall that the NT intervention was sparked — in large part — by the federal government’s response to the Northern Territory Government’s Board of Inquiry into the Protection of Aboriginal Children from S-xual Abuse.

As I’ve written here in the past (see here, here and here) the “Ampe Akelyernemane Meke Mekarle Little Children are Sacredreport exploded several myths about the relationship between traditional law and practice in the NT and the prevalence of child and adult s-xual abuse.

These include:

Myth: Aboriginal law is the reason for high levels of s-xual abuse

This Inquiry notes that this myth has gained popularity in recent times (e.g. Kimm 2004; Kearney & Wilson 2006; Nowra 2007). It is a dangerous myth as it reinforces prejudice and ignorance, masks the complex nature of child s-xual abuse and provokes a hostile reaction from Aboriginal people that is not conducive to dealing with the problem.

Myth: Aboriginal law is used as an excuse to justify abuse

The Inquiry was unable to find any case where Aboriginal law has been used and accepted as a defence (in that it would exonerate an accused from any criminal responsibility) for an offence of violence against a woman or a child.

The Australian — never letting the facts … or the law — get in the way of a good editorial.

Peter Fray

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