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
- 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
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
- 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
- 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
- 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
- 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
- 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.