Can We Reconcile Two Legal Systems?

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This is the second of two stories by Jennifer Mills on the tension between traditional law and the court system in the Northern Territory. Read the first here.

However gradual, the move away from traditional justice in Central Australia has shocked some and been seen as an attempt at genocide through cultural extermination.

Glen Dooley, a lawyer from the Northern Australian Aboriginal Justice Agency, claimed at a forum organised after a screening of the documentary Bush Law in Araluen in 2009 that white law is trying to "exterminate" black law. Eighteen new police stations have been built in remote communities since 2007, at the cost of $10 million. The NT Intervention was largely a police strategy and new police stations were a big part of the promise made to Aboriginal women and children that their safety was a priority.

But as Dooley pointed out, cultural sensitivity is not high on that list of priorities. Those police get "six weeks of training — two hours for Aboriginal culture".

Traditional law is sacred, and the problems of understanding are exacerbated by secrecy and cultural beliefs in sorcery which make our rationalist legal system uncomfortable. The cultural argument of a sacred and indisputable legal tradition going back 40,000 years might be a powerful one, but it is not very useful in addressing the problem of violence, nor that of having two extant laws.

In the eyes of white law, violence, including sexual violence, cannot be allowed to continue in contradiction of Australian law in the interest of preserving a tradition.

While it is tempting to blame former Indigenous Affairs minister Mal Brough for all ills, this shift has been happening incrementally and predates the Intervention by several years. In the Northern Territory, several statutes formerly recognised Aboriginal customary law in sentencing. Courts, including the Supreme Court, have taken "payback" into account as a mitigating factor; magistrates were generally expected to seek advice from the community before imposing a sentence.

In 2004, Chief Justice Brian Martin prevented a man from returning to Lajamanu for payback as part of his bail conditions. The story hit the media and the then Attorney-General Peter Toyne declared payback was no longer appropriate. But it was still considered among an offender’s cultural circumstances.

Subsequent changes to the Crimes Act in 2006 forbade NT courts to consider customary law as a mitigating circumstance; further changes in the Northern Territory National Emergency Response Act 2007 forbade taking customary law into account in bail or sentencing. At the time NT lawyers criticised the move as racist — or at best unrealistic.

Confusingly, we also have anti-discrimination legislation which protects the universality of white law, so that the same laws which enshrine the equal rights of Indigenous people prevent them from preserving their own legal culture. (Ironically, the Intervention’s suspension of the Racial Discrimination Act could have enabled traditional law to be incorporated further. But that was not on the Federal Government’s agenda.)

There is a cheering willingness to compromise from some parties. Some Aboriginal experts are arguing for change and adaptation. On the ABC’s Background Briefing in November, Alice Springs cross-cultural worker Ken Lechleitner said traditional punishment could be optional: "If spearing is too barbaric, let’s agree on that … This law doesn’t have to apply to everyone, [but]to people who adhere to the cultural processes."

A veteran community worker in Central Australia, Bob Durnan, told the ABC that some communities were already trying to compromise on traditional punishment "where people move from severe physical violence to other forms, maybe shaming or fining or exiling people, things that aren’t as traumatic as violence to the individual or family."

In Yuendumu in December, after some political point-scoring between the CLP’s Adam Giles and SA Premier Mike Rann, mediators were brought in from Sydney and South Australia to facilitate peace. By January, the tension seemed to have lifted with residents moving away to attend to other business, and the process was discontinued before reaching its goal. With many families away for business, this half-brokered peace is tentative. One wonders what could have been avoided had the infrastructure for such mediation been a part of the NT’s justice system in September, had politics not precluded finding a middle ground in the battle for law.

Adaptation has to come from both sides. The best middle ground we now have is restorative justice, involving the participation of communities, with elders and magistrates working together. Circle sentencing or Indigenous restorative justice has been successfully incorporated into communities in other states, as well as Canadian Indigenous Courts and to some extent in New Zealand.

In South Australia the Nunga Court has been working two ways since 1999. Elders sit with magistrates and defendants are able to address magistrates directly in a more informal setting. The courts rely on shaming and a sense of responsibility to one’s community. The Nunga Court at Port Adelaide has seen over 5000 cases in the last 12 years and has been successful in improving attendance rates and court participation. The program has since been extended to four other SA courts. The law has caught up; in 2005 legislation was introduced which legitimised the process.

An Australian Institute of Criminology report from 2004 cites the way in which such courts can address cultural sensitivities: "Appearing in court and speaking about one’s offending can be an embarrassing, fearful and non-meaningful experience for many Indigenous offenders. The presence of elders or respected persons in court can be effective in imparting a positive and constructive notion of shame, which comes from Indigenous people speaking to and supporting an offender, rather than from a more distant legal authority, who may make offenders feel afraid and bad about themselves."

The accessibility of this format addresses language and cultural differences and has improved attendance rates at court enormously. While it does not incorporate traditional violence, a model which involves the participation of Indigenous elders in its design may have more chance of legitimacy in both cultures and help prevent such violence from escalating.

In the NT, a similar model called "Community Court" was introduced in 2005. Except for sexual assaults, any offence that can be heard and finalised in the Magistrates Court is eligible for consideration in the Community Court.

Community Court attempts to do the same thing as Nunga court, introducing elders and an idea of community responsibility, but so far the program has only been running in Darwin and more recently extended to 12 remote communities in the top end. There are no plans to extend the practice to Central Australia.

Programs like this have been shown to reduce recidivism but they are expensive in terms of magistrates’ time — where a case in court can be heard in under 10 minutes, community sentencing processes can take all day and without adequate legislation they rely too heavily on one magistrate’s particular enthusiasm.

Restorative justice models have also been successfully used in Nowra and Dubbo in NSW, and in Yandeyarra in Western Australia. Any call for equality and universality of law should include the universal right to such alternatives. However, restorative justice processes are rarely used for violent crimes, and often restricted to young offenders, who are considered more redeemable than their adult counterparts.

While such a sentencing process may not have helped Yuendumu’s Watson family get justice for their son’s death, it could have been used to prevent the cycle of fear and confusion which resulted. Instead, a grieving family went to jail.

The power of our laws stems only in part from their institutional authority. In a democracy, that power also comes from our consent to their effectiveness and fairness. It is surely time to design a more effective and fair template with communities which are still — despite endless inquiries, a federal Intervention and more police — suffering from extreme levels of violence.

The events of the summer in Yuendumu have highlighted problems in the practice and legitimacy of both white and black legal systems. More positively, they have highlighted the need for an informed and open debate about the issue, a debate which has already begun and which many are willing to continue. Comments by Magistrate Bamber and Attorney-General Lawrie expressing their unwillingness to compromise are not helpful. Nor are such comments from Aboriginal elders. As with so many issues which attempt to bridge the cultural gap, in recent discussions about traditional law there has been a lot of talk, but not nearly enough dialogue.

As long as both legal systems view their own laws as immutable, and the other’s as harmful or irrelevant at best, then that dialogue cannot be possible and the status of both white and black law will remain uncertain. But there is an opportunity here to design a system which works better for everyone.

It would be a great shame to let that opportunity pass.

This is the second of two stories by Jennifer Mills on the tension between traditional law and the court system in the Northern Territory. Read the first here.

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