Last week I posted this story on a recent landmark case in the Supreme Court of the Northern Territory that may fundamentally change the reception of Aboriginal customary law in our courts.

This article looks at the recent history of the oppression of those laws in Australia and was published in the January 2014 edition of Land Rights News (Northern Edition) published by the Northern Land Council in Darwin.

Northern Territory and Commonwealth governments have been whittling away at recognition of Aboriginal customary law for many years.

In 2003, the first NT Labor government, led by Clare Martin, angered the then chairman of the Northern Land Council, Galarrwuy Yunupingu, when it changed the law affecting promised marriages.

Until then, Aboriginal men had been able to claim a defence under law to a criminal charge of carnal knowledge of a girl under 16, providing the parties were living as husband and wife according to traditional law.

The law-change soured the relationship between the Martin government and its largely Labor-voting constituency in north-east Arnhem Land. “You don’t throw your punches at people who put you there, right,” Mr Yunupingu said at the time.

And in 2004 the Northern Territory Labor government put restraints on how Aboriginal defendants could introduce evidence of customary law. The Sentencing Act was amended so that the evidence had to be flagged in advance to other parties and presented on oath or by affidavit.

The case of Jackie Pascoe Jamilmira had been a trigger for the government’s moves against the accommodation of customary law.

Pascoe pleaded guilty in April 2002 to unlawful intercourse with a female under the age of 16 (his promised wife) and to recklessly discharging a firearm. He was 49 at the time of the offence.

Pascoe did not explicitly use the little-known defence of promised marriage, but the way his case unravelled caused public and political concern.

In the Magistrates Court, Pascoe was sentenced to 13 months imprisonment, suspended after four months. He successfully appealed that sentence.

Northern Territory Supreme Court judge John Gallop instead imposed a sentence of 24 hours gaol, on the basis that more weight should have been given to evidence that Pascoe was exercising conjugal rights in accordance with Aboriginal custom.

On further appeal, the Northern Territory Court of Appeal upped the sentence to 12 months, suspended after one month.

Public disapproval of Justice Gallop’s approach, and of a sentencing decision by then Northern Territory Chief Justice Brian Martin (the second NT Chief Justice by that name), in the notorious case of “GJ” in 2005, set the scene for further attacks by governments on the invocation of customary law.

The “GJ” case, more than any other in recent history, gave weight to those pushing for constraints on how courts could take account of customary law.

GJ was in his mid-50s in 2004 when he was sentenced to gaol for five months for unlawful assault, and for 19 months for sexual intercourse with a child under 16. The gaol terms were suspended after one month by Chief Justice Martin.

While he accepted that GJ believed his actions were acceptable and justified under traditional law, Chief Justice Martin pointed out that GJ was not required under Aboriginal law to strike the victim or to have sexual intercourse with her.

“Your beliefs mean that your own moral culpability is less than those who know that this type of thing is wrong,” Chief Justice Martin told GJ. “Recognising these beliefs and their effect upon your culpability is not to condone what you did, but simply to recognise as a factor relevant to sentence the effects of your culture and your state of mind at the time.”

Chief Justice Martin’s sentencing provoked widespread outrage.

The Crown appealed and the Northern Territory Court of Criminal Appeal, while it recognised mitigating factors like GJ’s clean record and guilty plea, imposed a sentence of three years and six months for the sexual offence, to be served cumulatively with the five month sentence for the assault. The appeal court suspended the sentence after 18 months.

No doubt with the Pascoe and GJ matters in the back of their mind, the Council of Australian Governments (COAG) met in mid-2006 and reaffirmed a commitment to the National Framework on Indigenous Family Violence and Child Protection.

COAG agreed that “no customary law or cultural practice excuses, justifies, authorises, requires or lessens the seriousness of violence or sexual abuse.” All jurisdictions agreed that their laws would reflect this, if necessary by future amendment.

The Commonwealth was the only government to hold to that commitment. In 2006 it amended its Crimes Act so that, in dealing with offenders of federal legislation, courts were precluded from considering customary law or cultural practice as a mitigating (or aggravating) factor.

Then came the Howard Government’s “Intervention” and enactment of the Northern Territory National Emergency Response Act in August 2007.

That law prohibited a court, when sentencing or making an order in relation to an NT offence, from taking into consideration any form of customary law or cultural practice to lessen (or aggravate) the seriousness of an offender’s criminal behaviour.

The provision subsequently became an amendment to the Commonwealth Crimes Act, and still applied to only Northern Territory courts, because the Commonwealth can impose laws on its territories. Other jurisdictions have not followed the 2006 COAG commitment to legislate similarly.

The Intervention legislation was to have unfortunate, though unintended, consequences for the east Arnhem Land community of Numbulwar where in 2007 a construction company dug a long-drop toilet on a sacred site.

The company pleaded guilty in the Darwin Magistrates Court to an offence under the NT Aboriginal Sacred Sites Act and was fined $500 (the maximum fine was $22,000.)

No conviction was recorded.

The Aboriginal Areas Protection Authority finally took an appeal to the Supreme Court in 2011, arguing that the Magistrate had failed to give sufficient weight to the damage to the site in the eyes of its traditional custodians.

But the Authority had to abandon that line of argument because the Intervention legislation stopped the court from looking at the effects of the damage under customary law. Recognising this perversity, the Commonwealth later amended the law so that it did not apply to offences under the NT’s Sacred Sites or Heritage Conservation acts.

But the law continues to be roundly criticised by legal, human rights and Indigenous agencies.

In June last year, Northern Territory Chief Justice Trevor Riley wrote a paper for a conference of criminal lawyers in Bali. The Commonwealth law was an example of the legislature imposing laws which require the courts to act in a way that may lead to injustice, he said.

“It unnecessarily leads to the creation of further victims of the system.“Customary law and cultural practices are, of course, important aspects of everyday life in many remote communities in the Northern Territory. While the level of moral culpability of an offender may have been substantially reduced because he or she acted in accordance with, or under pressure to perform, a cultural practice, the court is barred from taking those matters into account.

“This means that the court must proceed to sentence in a partial factual vacuum. In such a case the court is required to ignore the actual circumstances that led to the offending,” Chief Justice Riley said.

The Northern Territory Emergency Response legislation and its impact on customary law was the Commonwealth’s response to the Little Children Are Sacred report, the product of the NT Government’s inquiry into child sexual abuse in Aboriginal communities.

The report was authored by Rex Wild QC and Aboriginal health bureaucrat Pat Anderson, who found that overall levels of dysfunction were higher in Indigenous communities where traditional law had significantly broken down.

Further, they argued that is more likely that Indigenous people will respond positively to their own law and culture than to laws imposed upon them.

In the months prior to the rollout of the Intervention though NT Aboriginal communities, the Yolngu lawman and elder, Reverend Dr Djiniyini Gondarra, made a passionate plea for the recognition of traditional law.

“Our traditional law is still here and it is keeping the peace on hundreds of Aboriginal communities in the NT,” he wrote in November 2006.

“That is, it is not the NT or the Federal government jurisdictional powers that are protecting our women and children and keeping the peace amongst many different clans and families; it is the traditional Aboriginal law that is doing it and it is costing the government nothing.

“There needs to be a real dialogue between these two systems of law so we can move away from the colonial mud slinging and find some real answers to real problems. Of course, this will mean that there needs to be some true communication between these two systems of law.”

Photo: Contractor’s pit toilet at the Numbulwar madayin sacred site