Over the summer, the issue of customary law and its survival in Central Australia came to the boil.
Following the death of a 21-year-old member of the Watson family in a fight in an Alice Springs town camp, the community of Yuendumu was thrown into conflict. Media began to report "riots" and threats of violence in the community in September (which some residents questioned). Police issued travel warnings. The evacuation of around 100 people to Adelaide in September was widely covered in mainstream press as a "warring tribes" situation. A second "riot" took place just after they returned in November.
These events prised open once again the can of worms that is post-colonial justice and sparked argument about whether traditional law (including violent "payback") should be a factor in sentencing decisions in the NT courts.
There is a long history in the Northern Territory of Aboriginal customary law being taken into account by the courts on sentencing issues. It was once common for magistrates to turn a blind eye by granting bail to offenders, allowing them to return to bush communities for traditional law.
But more recently, traditional law has been maligned as irrelevant, brutal and badly practised.
In December, 11 members of the Watson family were convicted of rioting related offences in an Alice Springs court, including the mother, father, two brothers and uncle of the murdered man. Their defence lawyer claimed the threats they made were part of traditional payback. Magistrate David Bamber took the opportunity to berate the family, making a bold statement that traditional law should be discarded and that consensual violence is "nonsense."
"The message, if it is not clear, needs to be made clear: violence begets violence. There is no place for violent retribution. The days of payback with violence should end." Bamber said that elders "should be concerned with changing their law. They should be working out ways to deal with disputes without violence rather than feeling aggrieved with whitefella law preventing them from carrying out their old punishments." Bamber’s statement drew a line in the sand.
In 2009 a documentary film by Danielle Loy called Bush Law was launched in Alice Springs, carrying a passionate plea from the Warlpiri elders of Lajamanu for the maintenance and respect of Aboriginal customary law. There too, a willingness for dialogue came up against a deep-seated conflict between white and black legal systems. At a forum held at Araluen after the film’s screening in 2009, some respected elders spoke against compromise.
"The fact is we are not looking for blending. We want our law recognised. we have never ceded our language, our country … we are not talking about blending or merging," said Barkly Shire president Rosalie Kunoth Monks.
We have in practice two distinct and contradictory legal systems in Central Australia and neither of them are working. But what is stopping us from developing a law which does work is an unwillingness on either side to acknowledge the other’s legitimacy. In situations like that at Yuendumu, the two are in direct conflict. When that happens, each law says it must prevail.
It doesn’t help that members of the NT Labor Government can’t agree on a position.
Comments from Indigenous MPs Marion Scrymgour and Karl Hampton have been positive about incorporating customary law in sentencing. Scrymgour, typically acerbic, said consensual violence to resolve disputes was common in the NT: "That’s called boxing." Hampton declared that as a Warlpiri man he supported both laws, which got an opposition spokesperson calling for his sacking – as if representing Aboriginal people in government was a conflict of interest.
But Attorney-General Delia Lawrie told the ABC in December that the Government would not revisit the issue of traditional justice. "We’re very clear we don’t condone violence of any type," she said. "If you take a violent act, then of course there are the laws that apply, laws that apply to all Territorians regardless of their race. And if you breach the law you’ll be brought to justice."
There is a strong element of racism in the white story about traditional law: the familiar narrative of the irredeemable violence of Aboriginal men, and the "tragedy of a dying culture" myth which calls that tragedy inevitable. These narratives underpin the arguments, perhaps suggesting that such racist tenets are at the heart of a reluctance to consider alternatives to our failing justice system.
At least some of this reluctance also stems from a need to appear "tough on crime" in town as business owners and residents in Alice Springs complain of a crime wave. CLP politicians have lately been making noises about a return of mandatory detention. There are new calls from Independent Gerry Wood for mandatory detention of Aboriginal people just for being intoxicated. Such detention was roundly criticised by human rights advocates. Since the 1991 Royal Commission into black deaths in custody prisons have been widely regarded as having failed Indigenous people. That at least is universal; they fail white people too.
Now the announcement of a new juvenile detention facility in Alice Springs calls into further question the Government’s justice priorities.
Our prisons are desperately overcrowded. Alice Springs jail operates at 120 per cent capacity. The new 24-bed juvenile wing at the Alice Springs prison will not ease that pain, but might help some families, since young people are currently being sent to Don Dale juvenile detention centre in Darwin.
In September last year the NT Government announced plans to close Berrimah prison and build a new 800-bed facility in Darwin, with a much-needed secure mental health facility, as well as a 170-bed prison farm in Katherine and the 50-bed Barkly Work Camp.
The Government has also promised to build safe houses for young people, but hasn’t specified where or how or how many, or whether these will involve mandatory detention.
When asked what kind of rehabilitation there will be for young offenders Lawrie told the Centralian Advocate, "we are focusing on taking the juveniles off the street." In a culture where many young Aboriginal offenders consider prison time a rite of passage rather than a legitimate punishment, it is worth asking yet again if imprisonment is the best way to address crime.
At the Bush Law forum, Kunoth Monks described imprisonment as an act of colonising violence. "Outsiders looking in say [traditional law]is brutal. It’s far more brutal when you are … put in to a foreign jail. That’s where you go sick in the spirit and sick in the mind, and it is the cruellest form of punishment."
And yet it is clear that payback is not going to provide the answer either. It doesn’t help that it varies from community to community, that alcohol fuels disputes, and that feuds can escalate over years and across large families to the point of endangering entire communities, including newborn babies. Of particular concern in limiting customary law was the fear that traditional law could be used as a defence for domestic violence.
In a 1991 ANU report titled Aboriginal Women and Violence, one Aboriginal woman is quoted as saying: "There are now three kinds of violence in Aboriginal society – alcoholic violence, traditional violence, and bullshit traditional violence". The report goes on: "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."
The bias has quite rightly shifted since to safety of women and children and away from traditional cultural practice, in the light of that perceived prevalence of "bullshit traditional violence." Magistrates have long been trying to make it clear that there is no cultural escape clause for family violence. But this shift has extended to all complaints and is increasingly being used to police the culture as a whole.
This is the first of two stories by Jennifer Mills on the encounter between traditional law and the court system in the Northern Territory. We’ll publish the second installment on Friday.
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