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SAGE: Submission to Inquiry into Aboriginal Customary Law in NT

The Aboriginal and Torres Strait Islander Social Justice Commissioner has also made a submission to this inquiry. To access that submission click here.

Introduction

1. Human Rights and Equal Opportunity Commission 2. The context for the submission 3. Overview of the submission

4. HREOC's consultations for this submission

Part A: The human rights context for women

1. Introduction 2. Aboriginal women's human rights 3. Potential conflict between women's individual human rights and Indigenous peoples' rights 4. Reconciling apparent conflict

5. Non-negotiable women's human rights

Part B: Aboriginal women and mainstream law

1. Introduction 2. Experiences common to women before the law 3. Specific issues for Aboriginal women before the law

4. Conclusion

Part C: Women and Aboriginal Customary Law

1. Introduction 2. Status of Aboriginal women in mainstream society 3. Ensuring Aboriginal women's voices are heard 4. Defining Aboriginal Customary Law to include women 5. Role of men

6. Conclusion

Part D: Principles for recognising Aboriginal Customary Law

1. Introduction 2. Principle one: A community based approach 3. Principle two: Ensuring women's involvement 4. Principle three: Recognising the importance of individuals 5. Principle four: Adequate resourcing 6. Principle five: Consultation 7. Principle six: A staged approach 8. Principle seven: Mainstream law as a safety net

9. Applying the principles - Aboriginal advisory committees to courts

Conclusion

Appendix A: Consultations

Introduction

1. Human Rights and Equal Opportunity Commission

The Human Rights and Equal Opportunity Commission (HREOC) administers theSex Discrimination Act 1984(Cth) (the Act). The objects of the Act include giving effect to certain provisions of the Convention on the Elimination of all forms of Discrimination Against Women; eliminating, so far as is possible, sex based discrimination in certain defined areas of public life and promoting the principle of equality between men and women.

The Human Rights and Equal Opportunity Commission is concerned about the status and role of women in Australian society, and with ensuring that women and men are guaranteed the full enjoyment of their human rights. As such, this submission emphasises the distinct experience of Aboriginal women in relation to mainstream law and Aboriginal Customary Law.

An accompanying submission has been prepared by the Aboriginal and Torres Strait Islander Social Justice Commissioner and should be read in conjunction with this submission.

2. The context for the submission

HREOC is concerned that in the past Aboriginal women have not been sufficiently consulted or included in the development and implementation of laws, policies and programs that relate to Aboriginal communities. The emphasis of the submission is on Aboriginal women's experiences of mainstream law and Aboriginal Customary Law. In particular, emphasis has been placed on including the views Aboriginal women, as heard in HREOC's consultations. [1] This approach has been taken in order to assist the Committee with its stated focus on identifying community concerns and developing practical measures to address these concerns.

HREOC's consultations serve to highlight some of the distinct views that Aboriginal women have in relation to their communities, Aboriginal Customary Law and mainstream law. They emphasise the importance of including Aboriginal women's views within the current Inquiry from the outset.

The most significant issue in HREOC's consultations was Aboriginal women's experience of violence. HREOC considers that the failure of mainstream law and Aboriginal Customary Law to ensure women's safety and freedom from violence must be central to any discussion of the recognition of Aboriginal Customary Law. Aboriginal women's experience of violence infuses their dealings with many other areas of mainstream law and Aboriginal Customary Law. It also presents a barrier to Aboriginal women's access to other areas of law, both mainstream and Customary. Some of these other areas of law are discussed in this submission.

3. Overview of the submission

The submission highlights women's experiences of mainstream and Aboriginal Customary Law and the key areas which are of concern for women in relation to the greater recognition of Aboriginal Customary Law. The submission focuses on Aboriginal women's lived experience of Aboriginal Customary Law. This information may assist the Committee in determining the strength of Aboriginal Customary Law and the capacity of this law to provide benefits to the Northern Territory. [2]

The third point of the Terms of Reference requires the Committee to make recommendations on the extent to which Aboriginal Customary Law can be recognised in the Northern Territory. [3] Specific recommendations have not been provided in terms of measures to achieve formal or informal recognition of Aboriginal Customary Law. However, the submission does provide a series of principles to inform the development of any proposal to recognise Aboriginal Customary Law.

The submission is divided into four sections.

Part A: The human rights context for women

Part A provides a brief overview of the human rights context for considering the recognition of Aboriginal Customary Law. Emphasis has been given to the United Nation'sConvention on the Elimination of All Forms of Discrimination Against Women(CEDAW).

Human rights standards and relevant international developments are considered in more detail in the accompanying submission prepared by the Aboriginal and Torres Strait Islander Social Justice Commissioner.

Part B: Aboriginal women and mainstream law

Part B of the submission discusses the barriers that women, and in particular Aboriginal women, face in accessing and participating in the mainstream legal system in Australia. Identifying and acknowledging these barriers is important when evaluating the alternative of using Aboriginal Customary Law. This is relevant not only to highlight the need for changes to the mainstream legal system in order to improve Aboriginal women's access to justice and increase social harmony within Aboriginal communities. It also raises the questions of whether these problems represent a barrier for hearing and incorporating the views of Aboriginal women in progress towards recognising Aboriginal Customary Law, and whether a customary law approach would actually be a better means for addressing them.

Part C: Women and Aboriginal Customary Law

Part C of the submission outlines concerns for Aboriginal women with past attempts at recognising Aboriginal Customary Law. In particular, this includes the need to acknowledge the distinctive position of women in Aboriginal societies, their role in Aboriginal Customary Law and the need to ensure that their views are heard.

The section then considers a number of areas where women's and girl's individual rights are often seen as clashing with Aboriginal Customary Law and considers the effectiveness of Aboriginal Customary Law in dealing with these issues. The issues addressed are family violence, sexual assault, child protection, promised marriages and traditional punishments.

Part D: Principles for recognising Aboriginal Customary Law

Part D sets out principles to inform the development of any proposal to recognise Aboriginal Customary Law. These principles emerged from HREOC's consultations. They provide a means for ensuring that gender is central to the development of any proposals. They are provided to assist the Committee in developing proposals for recognising Aboriginal Customary Law, including providing a series of next steps that the Northern Territory Government could take in acting on the Committee's final report.

4. HREOC's consultations for this submission

In April 2003, HREOC conducted a range of consultations and discussions in the Northern Territory as input to the preparation of this submission. Due to the short time frame for preparation of submissions, these consultations were necessarily limited.

The consultations [4] included:

  • Discussions with members of the community of Angurugu on Groote Eylandt;
  • a forum in Darwin of Indigenous women;
  • meetings with government officials and service providers in the Indigenous policy field, particularly in the areas of law, family violence and women's issues;
  • meetings with the co-Chairs of the Law Reform Committee's Inquiry; and
  • meetings with ATSIC including with Commissioner Anderson and staff of the Territory Office and Yilli Rreung Regional Office.

This spread of consultations was chosen in order to hear a range of different views and experiences, and also to discuss the operation of existing services and programs in the Northern Territory.

Part A: The human rights context for women

1. Introduction

As a starting point to this Inquiry, the Northern Territory Government has stated that any recognition of Aboriginal Customary Law must be "consistent with universally recognised human rights and fundamental freedoms". [5] HREOC endorses this requirement as essential to any recognition of Aboriginal Customary Law.

Human rights standards and relevant international developments are considered in detail in the accompanying submission prepared by the Aboriginal and Torres Strait Islander Social Justice Commissioner. That information will not be repeated here. Rather, the purpose here is to highlight the key issues in terms of ensuring consistency between women's human rights and Indigenous peoples' rights, and in particular, measures to recognise Aboriginal Customary Law.

2. Aboriginal women's human rights

2.1 Women's rights

The principal human rights treaty in relation to women's rights is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). [6] The rights enshrined in CEDAW broadly cover all aspects of women's lives. These rights include political participation, health, education, employment, marriage, family relations, equality before the law and freedom from discrimination. The right to freedom from violence has been accepted as implicit in the right to freedom from discrimination since 1992. [7]

Australia is a party to CEDAW. [8] This represents an undertaking by the federal Government to ensure that women in Australia are able to enjoy the rights set out in CEDAW.

2.2 Indigenous peoples' rights

In addition to these rights, Aboriginal women, as Indigenous peoples, have the right to practise their culture. Article 27 of the International Covenant on Civil and Political Rights (ICCPR) establishes minority rights.

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. [9]

The Human Rights Committee has noted that this provision applies to Indigenous peoples, and that it creates a positive obligation on States to protect such cultures. [10] Similarly, the Committee on the Elimination of Racial Discrimination has called on parties to the Convention on the Elimination of All Forms of Racial Discrimination (CERD) to:

Ensure that indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages. [11]

The recognition of Aboriginal Customary Law would be a means of implementing minority rights and therefore of providing the opportunity for Aboriginal women to enjoy these rights.

3. Potential conflict between women's individual human rights and Indigenous peoples' rights

The federal Government has an obligation to ensure both Aboriginal women's individual human rights and their minority rights as Indigenous peoples. In many instances, there will be no conflict between these sets of rights and they will both be able to operate in an interdependent and mutually reinforcing manner.

The difficulty arises where these rights appear to be in conflict. More specifically, one of the issues for this Inquiry is how to address situations where the recognition of Aboriginal Customary Law appears to conflict with the maintenance of women's individual human rights.

The potential for conflict between customary practices and women's rights has been recognised at the international level. For example, the Office of the High Commissioner for Human Rights has stated that:

Every social grouping in the world has specific traditional cultural practices and beliefs, some of which are beneficial to all members, while others are harmful to a specific group, such as women. These harmful traditional practices include female genital mutilation (FGM); forced feeding of women; early marriage; the various taboos or practices which prevent women from controlling their own fertility; nutritional taboos and traditional birth practices; son preferences and its implications for the status of the girl child; female infanticide; early pregnancy; and dowry price. [12]

4. Reconciling apparent conflict

4.1 Introduction

HREOC considers that it is possible to reconcile conflict between women's individual human rights and Aboriginal Customary Law. As set out below, mainstream law should consider apparent conflicts between the systems, where required to do so, on a case by case basis. It is also important to recognise that custom and law can adapt to general social change, thus allowing resolution of apparent conflict. The potential for conflict should not be used by government as an excuse to avoid recognition of Aboriginal Customary Law.

4.2 A case by case approach

The test established by the Human Rights Committee to determine whether the individual or minority right should prevail has been whether the restriction upon the right of the individual member of a minority could be shown to have a reasonable and objective justification and be necessary for the continued viability and welfare of the minority as a whole. [13]

While it is clear that there are cases internationally where women's individual human rights and minority rights are in conflict, international human rights law has yet to consider this issue in relation to Aboriginal Customary Law. Aboriginal Customary Law may be as diverse as Aboriginal communities and there can be disagreement as to what constitutes Aboriginal Customary Law. In these circumstances, a contextual approach to resolving apparent conflict that acknowledges the individual circumstances involved is more likely to resolve potential conflicts.

HREOC considers that it is preferable for judicial decision makers to be required to balance Aboriginal Customary Law issues with human rights standards, rather than imposing a legislative uniform ban or refusing to recognise certain practices. For example, as recommended in the accompanying submission by the Aboriginal and Torres Strait Islander Social Justice Commissioner, there could be a provision in the Northern TerritorySentencing Act 1995requiring magistrates to take account of Aboriginal Customary Law where relevant, and in accordance with human rights.

4.3 Allowing for culture to change

CEDAW requires States Parties to take measures to modify cultural practices in order to ensure that women's human rights are protected.

States Parties shall take all appropriate measures ... to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. [14]

This need not involve the immediate outlawing of such practices, but rather can involve measures to encourage cultural change by those people practising the particular culture. For example, in General Recommendation 14 the CEDAW Committee condemned the practice of female circumcision. [15] However, the CEDAW Committee recommended that educative measures be taken to combat the continued practice of female circumcision, rather than the immediate implementation of coercive laws to punish perpetrators. In doing so, the CEDAW Committee recognised that it necessarily takes time to eradicate abusive practices that have a cultural base.

The United Nations Development Fund for Women (UNIFEM) has emphasised the need to "… replace harmful customs with new practices that respond to current needs". [16]

Advocates of gender equity must recognize and challenge the social acceptance and perpetuation of harmful traditional practices in all cultures. Historically, religion and culture have proven extraordinarily adaptive; most belief systems have been revised over time to accommodate new understandings and new values that emerge in human society. As an African observer recently wrote, "Traditions are highly sacrosanct and untouchable where women are concerned. Still, I have seen traditions change during my lifetime. The change was so easy and smooth when the men took the initiative. Change, however, requires a lot of pain and hard work when it is initiated by women."

Numerous cultures offer examples of traditions, including customs harmful to women, that have changed or died out. For generations, women (and some men) in Sudan endured mutilation to acquire face marks, a traditional sign of beauty as well as an indicator of tribal affiliation. In recent years, this tradition has rapidly disappeared. The binding of women's feet in China is another example of a nearly universal custom that is no longer practiced. [17]

Measures to recognise Aboriginal Customary Law are often hybrid models that have been adapted to meet the needs of Aboriginal people and the mainstream law. The emphasis in these models is to put Aboriginal Customary Law principles into practice and to increase Aboriginal communities' access to self-determination. HREOC considers that in situations where women's human rights are at risk, Aboriginal communities should be encouraged to develop their own solutions to these problems and to adapt traditional practices to ensure women's human rights.

5. Non-negotiable women's human rights

The International Convention on the Elimination of All Forms of Discrimination Against Women proceeds from the assumption that all practices that harm women, no matter how deeply they are imbedded in culture, must be eradicated. [18]

In considering the relationship between protecting minority rights and the rights of women to equality, the Human Rights Committee has confirmed the importance of upholding women's rights. [19]

Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes… States should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women's right to equality before the law and to equal enjoyment of all Covenant rights… [20]

The rights which persons belonging to minorities enjoy under Article 27 of the Covenant in respect of their language, culture and religion do not authorise any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights, including the right to equal protection of the law. [21]

Similarly, International Labour Organization (ILO) Convention 169 and the Draft Declaration on the Rights of Indigenous Peoples, while not binding on Australia, establish the right for Indigenous peoples to retain their customs and traditions [22] and to deal with offences [23] subject to the requirement that this is not

... not incompatible with fundamental rights defined by the national legal system and with internationally recognised human rights. [24]

While all attempts should be made to reconcile women's individual human rights with the minority rights of Indigenous peoples to retain and enjoy their culture, HREOC considers that women's individual human rights must ultimately prevail. Particularly in the context of this Inquiry, HREOC considers that the recognition of Aboriginal Customary Law must also take active steps to ensure women's right to individual safety and freedom from violence.

Part B: Aboriginal women and mainstream law

1. Introduction

A starting point for the recognition of Aboriginal Customary Law is a critical examination of the ways that the mainstream legal system has dealt with Aboriginal women's issues. Any measures to recognise Aboriginal Customary Law must take account of the structural barriers Aboriginal women face in accessing the mainstream legal system. For example, giving women a choice between mainstream and Aboriginal Customary Law on family violence offences is meaningless if mainstream law has already failed her. Giving a magistrate the decision of whether a case is appropriate for determination within the mainstream or Aboriginal community will work to the detriment of women if that magistrate is not aware of the vulnerabilities of mainstream law for Aboriginal women.

This section begins by discussing some of the barriers all women are likely to face in accessing and participating in the legal system in Australia, and proceeds to focus on some of the legal issues that Aboriginal women have identified as of particular concern to them.

HREOC's consultations with Aboriginal women in the Northern Territory focussed largely on the criminal justice system. Criminal law, including Aboriginal women's experiences as offenders and victims of crime, and the impact upon them and their communities of their men's contact with the criminal justice system, was at the forefront of concerns about the law during the consultations. In particular, the levels of violent crime suffered by Aboriginal women are so extreme, and the effects so profound, that other issues were inevitably secondary. [25]

The violence suffered by Aboriginal women affects their abilities to participate in other areas of community life, including in the practice of Aboriginal Customary Law. The limited time available for consultation to HREOC in the preparation of this submission led to the focus on this primary issue, which is discussed further below at Part C section 4.2 and 4.3. Nevertheless, the specific effects of other areas of law on Aboriginal women - particularly native title rights, land use rights, family law, the child protection system, intellectual property, anti-discrimination law and general civil litigation (specifically, in this case, focussing on the barriers to access for Aboriginal women) - ought to be the subject of consultation with Aboriginal women during this Inquiry, and should be dealt with in the context of the Principles discussed at Part D.

2. Experiences common to women before the law

2.1 A male norm

Despite the many improvements in the status of women in Australian society, women still do not enjoy full equality with men. Women remain economically worse off than men, earning less and possessing less wealth. Women are less well represented than men in positions of power and decision making, including in senior legal ranks. So long as equality is not a reality for women, their ability to access the legal system and receive justice is curtailed.

While there are some areas of the law in which gender is not at issue, all too often an assumption of a male norm underlies many of the decisions made in the law. Maleness is seen as an invisible standard from which femaleness is a deviation and therefore suspect. As Graycar and Morgan have noted in discussing the hidden white male norm, "while women are women and blacks are blacks, white men are just 'regular people.'" [26]

The key areas where women are seen to deviate from the male norm relate to their sexuality and their reproductive roles. [27] These suspect characteristics of "femaleness" show up in many areas of the law and cut across jurisdictions. This is not only because gender biases remain apparent in many areas of law, including parts of the criminal law, family law, social security law, and employment law as well as many civil matters, [28] but because gender is embedded in legal institutions and the legal process itself.

2.2 Man-made law

The most obvious way in which law remains institutionally male is the dominance of men as judges, legislators, senior lawyers and academics, as well as in the legal justice system. While women are present at law schools and graduating as lawyers in record numbers, they are not, and have never been, fully represented as the makers of law. In addition, the professions that administer the criminal justice system, such as police and prison staff, are overwhelmingly male dominated. Mainstream law, then, continues to reflect the interests and experiences of men.

The law has developed largely without the insights, perceptions and understandings which women can bring. [29]

Historical inequalities are reproduced through the doctrine ofstare decisis , or precedent, which produces common law based on previous decisions. There is the risk that unexamined sex bias and inequalities will be imported into decisions through precedent, as well as through residual biases in the attitudes of legal actors. [30] While the law may now be adapting to respond better to women, nevertheless, women have been excluded from the process of defining legal reality through their historical exclusion from the legal system.

Unless law reformers consciously counteract the male bias in law, by taking active steps to make women the central consideration of reform, they replicate the structures that exclude women.

2.3 Gender in legal processes

Gender also shapes legal processes, such as the processes determining what aspects of experience can be spoken of in court. One of the mechanisms that tends to exclude women and other marginalised groups before the law is the notion of legal relevance. Experiences must be limited and distilled to become legal issues. Often this means excluding parts of an experience that, especially to victims of violence who are witnesses in prosecutions, represent the full lived experience that they are presenting to the court. While of course irrelevant information should be excluded to assure an accused a fair trial, it is arguable that the automatic exclusion of material purely because it is not legally relevant to the issue under scrutiny does not serve justice yet silences female victims of violence.

As one young witness in court proceedings wrote, the jury was discharged in the trial of her father for rape and incest in which she was the witness

…because the Crown Prosecutor informed the jury about the haemorrhaging that I had suffered. The defence said that this would prejudice their client and the judge agreed, saying that such evidence was 'inflammatory' and 'emotional'. Well, being continually raped, bashed, humiliated, robbed and dragged off to a clinic to have an abortion as a young teenager and then to be raped and haemorrhage afterwards, and have both parents refuse to take you to a doctor because your father is the one responsible for the pregnancy in the first place - IS EMOTIONAL! And much worse than emotional. To this day I carry the physical consequence and the deep emotional and spiritual pain that haunts me even in my sleep. [31]

The law is yet to adequately recognise the harm caused to women and children who are involved in the legal system as victims of crime and to take all appropriate steps to minimise this harm.

The legal process often acts to further traumatise women rather than to deliver justice. Methods of taking evidence, which require women to repeat their story a number of times, often in different proceedings, means that women often see the process as an exacerbation of the violence rather than the delivery of justice.

2.4 Gender bias in legal doctrine

Legal gender bias may be manifested in an inability to recognise women's social disadvantage. For example, women's experiences of violence may still not be adequately taken into account by courts. The law of provocation developed from a male perspective and failed to account for the fact that women's experiences of violence differs from men's. For many years the law failed to take into account women's survival mechanism in remaining with an abusive partner in the face of the overwhelming threat of that violence should they attempt to leave. As one enlightened judge noted in 1990,

If it strains credulity to imagine what the ordinary man would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to the circumstances which are, by and large, foreign to the world inhabited by the hypothetical 'reasonable man'. [32]

Still too often the characterisation of the reasonable person, as the test has become, remains a test of a reasonable man, and fails to take account of the experiences of women.

Another example of a law that is not shaped by women's experiences is the law relating to consent in sexual assault, which

…generally assumes that a woman has consented to sex until she forcefully states otherwise or takes action which blatantly means no. This locks women into being sexually reactive rather than being proactive sexual agents. [33]

Laws that require such a reaction from women reinforce women's vulnerability to sexual assault in society. For example, a common assumption is that a woman somehow leaves herself open to sexual assault (and therefore at least to a degree consents to such an assault) if she is intoxicated or drug affected. On the other hand, many men attempt to excuse their unacceptable or illegal behaviour on the basis that they were similarly affected. Women's behaviour is curtailed and prescribed by such attitudes that are legally entrenched.

Justice Mary Gaudron has written that "equal justice is justice that is blind to differences that don't matter but is appropriately adapted to those that do". [34] The challenge for the law is to distinguish appropriately between the two. [35]

3. Specific issues for Aboriginal women before the law

3.1 Intersectionality

The 1994Equality Before the Lawreport identified the multiple disadvantage of Aboriginal women in their access to and their interaction with the legal system.

Of all the identifiable groups of women whose concerns have been presented to the Commission, Aboriginal and Torres Strait Islander women are least well served by the legal system. This fact is related to, but not dictated by, the extreme social and economic disadvantage experienced by many Aboriginal and Torres Strait Islander women. [36]

In the same year, the report of theWestern Australian Chief Justice's Taskforce on Gender Biasfound that Aboriginal women's experiences of the law were affected by their race, their sex and their extreme socio-economic deprivation. [37]

Almost ten years later, little has changed for Aboriginal women participating in the legal system. HREOC's consultations with Aboriginal women in the Northern Territory have confirmed a number of ongoing specific concerns in women's interaction with the mainstream legal system. These are the role of police; restraining orders; access to the legal system; courts and incarceration

issues.

3.2 Police

The police are the primary gatekeepers of the contact between Aboriginal women and the legal system. Overwhelmingly, Aboriginal women do not initiate their involvement with the law. Rather, they come into contact with the law as offenders or as victims of crime. [38]

There is a clear gender element in the kinds of offences which bring offenders to the notice of the criminal justice system. There is some international evidence indicating that police arrests reflect actual patterns of offending. [39] Nevertheless, police, as gatekeepers, play a role in defining offending behaviour. They bring their own gender perspectives to bear in identifying offenders and defining their offences.

Aboriginal women comprise three-quarters of all women held in police custody and in the Northern Territory the proportion is close to 90 per cent of those detained. The police custody survey shows that women in general are detained in police custody proportionately more for offences of public disorder than are men, and that Indigenous women are particularly susceptible to being detained. [40]

As the primary point of contact for Indigenous Australians with the mainstream legal system, the ability of police to deal with Aboriginal offenders and victims of crime is seriously compromised. The lack of trust between Aboriginal people and police means that violence and sexual abuse within Aboriginal communities is vastly underreported. The Queensland Aboriginal and Torres Strait Islander Women's Taskforce on Violence succinctly identifies the disincentives to the report of child sexual abuse, for example, as the "…lack of assistance from police or fear of reprisals, or shame". [41]

The acceptance of violence in Aboriginal communities by police was noted consistently during HREOC's consultations. Police practice in some parts of the Northern Territory of "…pushing all the drunks into town camps…" [42] was seen to lead to violence, for example. On the other hand, early police intervention was also seen to be problematic.

If police come they will make it worse for the family, but first thing the other family goes and talks with other family and they will sort it out cultural way or family way before police. If police already comes and gets that man then we can't do anything. It's better if we could settle that problem cultural way or family way. [43]

There is no doubt that policing in Aboriginal communities, particularly in remote communities, is perennially problematic. The policing of violence against Aboriginal women brings particular problems that need to be specifically addressed. One example of the difficulties faced by police and Aboriginal women in their dealings with each other arises in the handling of restraining orders.

Restraining orders

Women may often seek formal police assistance at the time violence occurs, in the form of criminal charges or applications for restraining orders, only later to reconcile with the violent man and seek the withdrawal of the charges or application. This may often seem inexplicable to police, but there is now greater understanding of the dynamics of family violence and a recognition that procedures need to be designed with these dynamics in mind.

One of these procedures is the "no drop" policy, where police will refuse to withdraw a restraining order even where the woman has reconciled with the violent man, leaving the court to deal with the matter. This transfers responsibility for the proceedings onto the legal system. Denying a woman the choice to withdraw a restraining order may actually protect her. Nevertheless, women may still suffer for their original notification of the police.

When the men are in prison you see the women getting more and more scared as the release date gets closer. [44]

Restraining orders may also be ineffective.

Restraining orders don't work in remote communities because logistically it is impossible to avoid each other [45]

But no matter if she gets a restraining order, [in a] few weeks she'll be back with him. [46]

Despite limitations, restraining orders are a useful tool for police and Aboriginal women, even if only because "we have to do something". [47] More than this, however, a restraining order has the capacity to empower a woman in a certain situations. [48]

3.3 Negotiating the legal system: Language, culture and legal aid

Aboriginal people, including women, often do not trust the mainstream legal system. [49] These experiences infect all the dealings of Aboriginal women with the mainstream legal system. In addition, there are a number of specific barriers that Aboriginal women face in negotiating that system.

The "whiteness" of law

The legal profession, including the magistracy and judiciary, continues to be predominantly peopled by white men. This affects both men and women, victims and offenders, who come into contact with the legal profession, but arguably disproportionately disadvantages Aboriginal women.

The legal system is a boys club. White men only find out what Aboriginal men want. [50]

Women need some sort of protection from violent men, however everywhere she turns it is male - the courts, the police. [51]

One opinion expressed during consultations with Aboriginal women for this submission was that "[a] lot of the cases when prosecuted are done by white men, who just don't have the same commitment." [52] Part of this perceived lack of commitment may arise from the difficulty of white legal actors in understanding Aboriginal culture. This restricts their ability to rigorously pursue the legal issues. Examples were cited of prosecutions failing to call expert witnesses in appropriate cases. [53]

Aboriginal women particularly face cultural difficulties in discussing issues of violence, particularly sexual assault and child sexual abuse, with men. The ignorance of Aboriginal society and Aboriginal Customary Law of many in the mainstream legal profession compounds problems. A common example of this is the belief that violence against women is sanctioned by Aboriginal Customary Law. [54]

However, there was also recognition of the degree of commitment to understanding Aboriginal culture and perspectives of individual legal actors in many cases.

Legal aid

The legal aid system prioritises resources to defend criminal allegations, which are therefore predominantly channelled towards men. Women, as victims of violence, were perceived during consultations as often having difficulty in obtaining legal advice where the offender is an Aboriginal man. This places women at a disadvantage in accessing the legal system, both in relation to the criminal trial and in associated proceedings, such as subsequent compensation proceedings. [55]

Language

The ability to communicate across language and cultural barriers is a continuing problem for Aboriginal women seeking access to justice. The problems occur because many women are unable to understand the context and meaning of what they are told.

She went to court and we had an interpreter but because of the wording she couldn't understand and kept turning to me. [56]

[P]oor communication ensures that advice from legal professionals is misunderstood or just not heard, negating Yolngu hopes of a "fair go". [57]

Interpreters were seen to be necessary for the delivery of justice at all stages of the legal process, from initial contact with police through to the judicial processes. [58]

3.4 Courts

Problems experienced by Aboriginal women dealing with the legal process are heightened by the courtroom experience, whether in the capacity of offenders or victims of crime. They

…may be shy of white people, easily intimidated by authority figures, and [have a] cultural background [which] is such that sexual matters are not referred to in mixed company let alone in the presence of court personnel. [59]

Court processes in particular are time limited and rushed.

Magistrates have a good understanding of customary law issues (particularly those in the bush courts) however the reality of bush courts is that they don't have time to properly address issues (there are 80 matters that have to be gotten through in one day - which is 10 matters an hour). There is never time for witnesses to be called. [60]

On the other hand, Aboriginal women share the widespread concerns about the time taken by the mainstream legal system to deliver justice.

The white system just grinds along - it deal with sexual assault too slowly. It should be dealt with more expeditiously. [61]

The biggest problem with the white system is the time frame. Kids give their statements straight away only to have to recall it years later. There are also language issues with this. They should only have to give evidence once, on tape. [62]

The judiciary also was described during HREOC's consultations as often lacking awareness of Aboriginal cultural issues.

Because women take a long time to answer in court, they often get cut off and this is interpreted as them saying 'no'. [63]

Magistrates and police always deal with our colour. They have to learn our rules too. Like, if someone dies, the person in custody has to come back [to fulfil their ceremonial obligations]. That magistrate has to learn - maybe do a cross-cultural course or something. [64]

Ultimately, Aboriginal women share the mainstream concerns about the effects of the judicial processes upon women, particularly as victims of crime.

A lot of women have gone into the system and been denied justice. [65]

We've got to do our court system better so that we support our victims better. [66]

Women won't speak up - we need to find those who will and support them. [67]

3.5 Incarceration

Aboriginal and Torres Strait Islander Women are incarcerated at a rate higher than any other group in Australia. In the decade since the Royal Commission into Aboriginal Deaths in Custody incarceration rates for women have increased at a more rapid rate than for men, and imprisonment rates for Aboriginal and Torres Strait Islander Women have increased more than for other women. [68]

Despite this, Aboriginal women remain "…invisible in the picture of criminal justice". [69] For example, none of the recommendations of the Report of the Royal Commission into Aboriginal Deaths in Custody related specifically to Aboriginal women offenders in the criminal justice system. [70]

The patterns of Aboriginal women's offending are different from Aboriginal men's, and often represent the direct results of poverty. Increases in incarceration rates for robbery offences have been the most dramatic of recent years; Indigenous women comprise nearly 80 per cent of public drunkenness offences; and fine defaulting remains a significant factor in incarceration rates. [71] The position of Aboriginal women as victims of violence is also relevant to their offending patterns and levels of incarceration. [72]

Particular attention should be given to the incarceration of Aboriginal women because of the crucial role Aboriginal women play in the family and community. This is relevant given the primary parenting roles of women and their role in negotiation and dispute settling roles in Aboriginal Customary Law. [73]

It is important that the relatively small absolute number of women in prison in Australia is not allowed to obscure the very particular issues around incarceration for Aboriginal women.

Women are also, of course, directly affected by the incarceration of Indigenous men and boys. Aboriginal women see the prison system itself as "…an aspect of the violence cycle which de-socialises, brutalises and de-skills their menfolk". [74] Men's incarceration was considered by women consulted by HREOC in the preparation of this submission to have extremely detrimental effects on the community.

Now [he] goes away, has fun, comes back and is worse. [75]

[Boys who commit crimes are] sent somewhere [that is, to prison] to eat good food and watch tv and leave someone else to look after his family and come back [with a swagger]. [76]

Have to get something for them and not send to prison. They need to stay here for their ceremonies. We can take them out bush. [77]

We don't want them to end in gaol - [they] come out and do more. They should learn in their community about living here instead of about another culture. We should set up something here. [78]

4. Conclusion

The particular barriers discussed in this section may be common in many ways to those experienced by men, yet they tend to affect women in different ways and generally more harshly. They also affect the way in which Aboriginal women can participate in the process of recognition of Aboriginal Customary Law.

Young women need a strong mind and determination to be able to live between the two systems [of white law and Aboriginal Customary Law]. [79]

The younger generation are struggling. They are caught between the city and traditional life. [80]

The experiences of Aboriginal women in dealing with Aboriginal Customary Law are dealt with in the following section.

Part C: Women and Aboriginal Customary Law

1. Introduction

Women's issues are often the point at which Aboriginal Customary Law intersects with human rights. A key concern for this Inquiry must be how to best protect the human rights of Aboriginal women and girls. To assist the Committee, this section specifically addresses some of the points at which Aboriginal Customary Law and women's human rights intersect, such as family violence, sexual assault and marriage.

This section also deals with the need for mainstream institutions and processes, including this Inquiry, to make the views of Aboriginal women central when recognising Aboriginal Customary Law.

2. Status of Aboriginal women in mainstream society

2.1 Respecting Aboriginal women

When we go to other places, we respect. That's what we do in Aboriginal communities: we respect. [81]

I respect woman's law. Man comes from woman, so that's how I look at it. I didn't come from a tree. Woman raised me. Even if I have to go see President John Howard or Bob Hawke, if I tell that boss: why are we threatening women? Why [is there] violence with women, and yet we come out from woman? [82]

Over the past two hundred years, Aboriginal women have been denied status within mainstream Australian society, while their status within their own communities has diminished, resulting in disempowerment and marginalisation. [83] Over this time there has been a failure by mainstream Australian society to address the concerns of Aboriginal women. Aboriginal women have also sometimes been reluctant to emphasise gender issues, in order to focus on Aboriginal peoples' shared experiences of racism and colonisation. [84] However, Aboriginal women are often left out altogether under this approach.

Aboriginal women have specific needs which differ from the needs of non-Aboriginal women and the needs of Aboriginal men... Too often the programs for women ignore the particular needs of Aboriginal women believing that the Aboriginal programs will pick them up. To date Aboriginal programs have not done this. [85]

Specifically because non-Aboriginal discussions of gender issues focus on white women and discussions of Aboriginal issues tend to focus on men, HREOC considers that it is important to make the distinct experience of Aboriginal women central to this Inquiry. Women who spoke to HREOC as part of this submission also emphasised this point.

Women's issues have to be at the forefront. [86]

Women's issues and customary law go hand in hand. [87]

In order to adequately consider the position of Aboriginal women in Aboriginal Customary Law, this Inquiry should pay particular attention to the historical and contemporary biases inherent in mainstream society, including the impact of past policies and practices on Aboriginal women.

2.2 Bias in mainstream society

The unique position of women in Aboriginal societies has often been misinterpreted and obscured, due to male bias in mainstream culture. This began with the earliest interactions with anthropologists, who assumed that men were the only source of authority and so recorded men's laws and practices. [88] As one Aboriginal woman put it, Aboriginal men "have been taught by non-Aboriginal men to consider themselves superior", while Aboriginal women have been told "it is the men who own the land, know the only sacred sites and rituals and make the decisions". [89]

This historical bias laid the foundation for an ongoing emphasis on the role of men, and a "feedback loop" in which male views are recognised and reflected back to communities by mainstream institutions while women's views are marginalised.

[T]he white male bias of frontier society in central Australia is legendary. Liaison officers, administrators and community advisors are almost always male. The few women who work in these positions are too few to cope with the remaining 50% of the population whose hopes, fears, expectations and opinions remain unrecorded, refracted through male eyes or recorded by men who believe women are scarcely worth a footnote. What consultation occurs is male to male. Aboriginal men gain valuable experience. A vicious circle is established in which the male political role gains a footing and the women, who remain separate, become marginal in the new and emerging social order. [90]

Women's role in Aboriginal Customary Law may also be obscured by apparently gender neutral policies, practices and structures. For example, Barbara Cummings argues that girls were a particular target of past assimilationist policies of removing Aboriginal children from their families, meaning that women's connection to their land is more likely to have been broken. [91] This has a continuing impact for such women, who find it harder to establish rights over their land and a position within their communities. Cummings also argues that the structure of land councils reflects women's broken connection with the land.

In the absence of an independent women's council, the importance of women's direct relationship to land remains diminished. This occurs, in part, through the lack of an independent structural voice. More importantly, the absence of such a voice affects the contemporary structure of anthropological models. These models continue to suffer from the historical shortcomings of an anthropology based on an assessment of a culture based on male observation and interaction and discussion with men. Not surprisingly, the result of this process is a diminished status being given to women. [92]

3. Ensuring Aboriginal women's views are heard

3.1 Consulting Aboriginal women

The male bias in mainstream interactions with Aboriginal communities is exacerbated by a continuing failure to consult appropriately with Aboriginal women. Aboriginal women rarely speak freely with white women, let alone white men, yet consultations seldom allocate sufficient attention and resources to fully garner women's views. For example, in the Australian Law Reform Commission's reference on Aboriginal Customary Law, male field officers conducting consultations commented on their own failure to engage the views of Aboriginal women. [93] HREOC believes that this lack of consultation has serious ongoing consequences for the viability of any proposals to recognise Aboriginal Customary Law. To offset the historical and continuing failure to gather women's views on Aboriginal Customary Law, effective consultation with women is crucial.

3.2 Women within Aboriginal communities

While mainstream institutions have failed to include Aboriginal women in their processes, many women also raised concerns with HREOC about women's views being heard within Aboriginal communities.

Our law got no room for women. [94]

They get away with [domestic violence] because the man's up here and the woman's down there. [95]

If you're a woman you shut your mouth and don't say anything [about domestic violence.] [96]

Some women with whom HREOC consulted for this submission saw women as unable to enjoy a place in mainstream or Aboriginal Customary Law:

Women are falling down the cracks where the white systems and customary law meet. [97]

The past and continuing disempowerment of Aboriginal women within mainstream society, and often in their own communities, means that any measures taken to recognise Aboriginal Customary Law must pay particular attention to hearing what Aboriginal women have to say on the issue.

3.3 Aboriginal women as leaders

Some Aboriginal women who spoke to HREOC believed that communities need more women leaders.

In some communities women hold power, but very few. These women get burnt out because they have very little support. [98]

The majority of CDEP positions are allocated to men. There are no women CDEP supervisors. No women mentors sitting alongside men. No equity. [99]

It is crucial, where there are strong women leaders, that they are involved in consultations on Aboriginal Customary Law and given adequate support in any new measures introduced. The "default" position for government work is still to make men central to consultations and negotiations. Given their history of subordination in mainstream society, it also cannot be assumed that women will automatically be involved in decision making within their communities. [100]

4. Defining Aboriginal Customary Law to include women

4.1 Introduction

Aboriginal Law was/is the maintenance and healing of relationships and was/is a constant process of negotiation, mediation and conciliation in managing and resolving the conflicts natural to all human associations. Aboriginal women were and are the custodians of this aspect of Law. They ensure protocols are maintained, that conflicts are not allowed to fester and grow, and that incorrect behaviour is dealt with in appropriate ways. [101]

Given the historical and continuing failure of mainstream institutions to see the importance of women in their communities and as custodians of law, it is particularly important that the Inquiry start with a broad definition of Aboriginal Customary Law. Aboriginal Customary Law should not be understood only in terms of enforcement, which emphasises the role of men, but must also include the crucial role women play in upholding and maintaining law. A narrow definition will leave women out.

Women's role in Aboriginal Customary Law encompasses all aspects of life. However, there are some specific areas of mainstream law where women's and girl's rights and needs are often seen as clashing with Aboriginal Customary Law. These are: family violence, sexual assault, child protection, promised marriages and traditional punishments. They are each discussed below.

4.2 Family violence

Violence, and particularly male violence against women family members, is a problem throughout Australian society. [102] In Aboriginal communities the extent of violence between community and family members is exacerbated by a range of factors, enumerated in various reports, such as substance abuse, generational abuse, mental health issues, poverty and unemployment. [103] The devastating effect of colonisation on Indigenous populations in Australia, as around the world, has been both a cause and an intensification of these social problems.

The extent of the problem

The extent and seriousness of violence against Aboriginal women and children has been well established and is incontrovertible. Although Aboriginal family violence is recognised as a problem by Australian society it is not given the attention it desperately needs. The Queensland Aboriginal and Torres Strait Islander Women's Task Force on Violence has stated that the violence in Aboriginal communities is "immeasurable."

Indigenous women's groups, concerned about their disintegrating world, have been calling for assistance for more than a decade. While their circumstances may have been recognised, their pleas have not been met and in some cases, deliberately ignored. At times, Government representatives appeared to regard violence as a normal aspect of Indigenous life, like the high rate of alcohol consumption. Interventions were dismissed as politically and culturally intrusive in the newly acquired autonomy of Indigenous Communities. Moreover, the 'Aboriginal cause' attracted little interest or sympathy in the broader Australian community… The violence being witnessed can only be described as immeasurable and Communities, pushed to the limit, are imploding under the strain. [104]

Many Aboriginal women spoke to HREOC about family violence as both endemic and ignored.

Many women just endure immense amounts of suffering. [105]

I have never seen an Aboriginal community with a low rate of domestic violence. [106]

Quite often the five beds in intensive care in the Alice Springs hospital are taken up by Aboriginal women who have been bashed. [107]

There is no media on the desperate plight of Aboriginal women and their situation. It is racism. There is never any national outcry even though women in the Northern Territory are 33 times more likely to be killed. [108]

During consultations, the Central Australian Aboriginal Family Legal Unit summed up the problem, saying that "[i]t is hard to come to any conclusion other than there is a lot of violence in communities and a lack of protection for women." [109]

Family violence is not Aboriginal Customary Law and should not be tolerated

It is very clear that bashing women and children, raping them or otherwise assaulting them, are not traditional Aboriginal customs. Audrey Bolger has defined traditional violence as follows.

By traditional violence is meant the punishments for transgressions which were part of the means of social control in Aboriginal society and were meted out to both male and female offenders. Such physical punishments, which could involve spearing, beating or even death, were not between individuals but were the responsibility of whole communities or relevant groups in those communities, both women and men. There were recognised punishments for specific transgressions and they were carried out by particular people under community control. [110]

Bolger went on to make the well-known distinction between traditional violence and "bullshit" traditional violence, the latter being an assault on a woman, often by a drunken man, which he then attempts to justify as a traditional right. This argument is still commonly made by defence lawyers, even those from representative Aboriginal legal services, in order to minimise punishment for the offending men. During consultations women spoke of these arguments, and the lawyers who make them, with disgust.

Aboriginal women who spoke to HREOC argued strongly that domestic or family violence is totally unacceptable to them and is not part of traditional law.

I will not tolerate domestic violence in any form. [111]

Domestic violence isn't a part of our culture and those men who acknowledge that have no support. [112]

It's not Aboriginal culture to bash any Aboriginal woman or child. [113]

[Men] use tradition as a shield and they hide behind it. [114]

Women on Groote Eylandt also told HREOC that family violence was not acceptable in their traditional law.

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. [115]

How is Aboriginal Customary Law dealing with the problem of family violence?

Traditional Aboriginal Customary Law did not necessarily develop effective responses to family violence of the magnitude that has developed in recent times. As a result, some communities are responding to family violence in a variety of ways, which may or may not be described as Aboriginal Customary Law.

On Groote Eylandt, HREOC officers spoke to women and men about responses to family violence. The community response to family violence can be summarised as a combination of traditional law, individual actions and recourse to white law. The following is a description of the varied responses to family violence situations.

[There] are women who feel scared - go to police or safer place; family drop at police; go to shelter on mainland. Some women can stand up; others afraid. When stand up, fight back, man sometimes stop because he knows she'll fight back. [She gets] stick to fight off man with spear. Sometimes [we] encourage her to stand up to him and talk back, fight back so he can't keep doing it. Sometimes she goes away to shelter and takes kids for 3-4 months. Then he begins to realise he's lost his kids - makes promise to Elders that will behave. Then people follow up to check he's keeping his promise. [116]

Women from the Groote Eylandt community told HREOC that a common response, both now and in the past, to violent men is to have a respected person or family member speak to the offender about their behaviour to convince them to stop. In the past, Elders would speak to offenders and it would have an effect. Now, the results are less certain.

Sometimes this approach is successful.

Her daughter's husband used to bash her [daughter]. When [this woman] went there, [her daughter was] bashed. [One day, her son-in-law said] "I promising you I won't ever lay my hand on your daughter because we got three kids and I don't want them to see their mother like this." [Woman] talking to him helped stop this. Now he hasn't hurt her. [117]

At other times, speaking to men does not work.

Some men different, won't listen to women: "I don't want to hear you". [Women] say "alright, but just giving you some information". [118]

Some men talked about taking action against other men, as a community or family matter.

At the moment I am working [as a peacemaker] in my inner circle - just my sons, my nephews, adopted son and my sister's nephew. Because they got family now and I don't want them to argue with each other as a husband and wife. If they fight I'm gonna settle them. If they don't, I will go with weapon. That's what I did with my two sons because they were beating their wife. I got nulla


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