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AUSTRALIA: Tribal Law

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  • Neshoba
    Bridging whitefella law and clan justice Australians wonder if traditional Aboriginal customs can be allied to European notions of human rights and due process
    Message 1 of 1 , Jan 2, 2003
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      Bridging whitefella law and clan justice

      Australians wonder if traditional Aboriginal customs can be allied to
      European notions of human rights and due process

      David Fickling in Darwin
      Monday December 30, 2002
      The Guardian

      When Kevin Webb, accused of murder, was given a week's bail by an
      Alice Springs court earlier this year, he knew immediately what to do.

      He went to the Aboriginal community of Nyirripi, 280 miles north-west
      of Alice Springs, where the family of his alleged victim, Max Brown,
      lives. While a nurse and police officers stood by, he submitted to
      Brown's relatives spearing him 13 times in the legs and breaking his
      ankle.

      Such payback punishments have gone on for thousands of years in
      Australia's Aboriginal communities. What was unusual in Kevin Webb's
      case is that the Alice Springs magistrate, Michael Ward, gave him bail
      so that he could suffer this punishment. He is likely to be given a
      reduced sentence in consequence.

      Aboriginal customary law and European law have been at odds since
      the first years of the European invasion, but only recently has the clash
      come into the open. Many question how two legal systems can live
      side-by-side.

      Stuart MacMillan of the Aboriginal Resource and Development
      Services in the Northern Territory says that remote Aboriginal
      communities there and in Western Australia, South Australia and
      Queensland see no reason why they should submit to "whitefella law".

      "In traditional communities, people consider themselves to be members
      of a clan nation whose laws they have assented to, rather than an
      Australian nation by which they have not agreed to be ruled," he says.
      "They don't see why they should have anything to do with Australian
      law."

      There is no way of knowing how many customary judgements are made
      each year, but in the Northern Territory courts the annual appeals
      against traditional law run into the dozens. Legal experts say that these
      appeals represent a fraction of the total cases.

      The governments of the Northern Territory and Western Australia are
      investigating how indigenous law can be incorporated into state law.
      The federal government's human rights and equal opportunities
      commission will begin a similar review in the new year.

      But not everyone is happy about it. Human rights advocates are uneasy
      about many aspects of traditional law, and many Aborigines are equally
      opposed to all of it being recognised.

      "These reviews are a necessary exercise, but there has to be a
      fundamental bottom line, and that is adherence to international human
      rights principles," Simon Rice of Australian Lawyers for Human Rights
      says.

      Chris Sidoti of the Human Rights Council of Australia says: "Some
      people would say that human rights runs opposite to Aboriginal law,
      others that it provides a universal standard to which other legal
      traditions must adapt. Customary law can't remain immutable. Any
      culture that's a living culture is changing."

      Culture clash

      The problem for those trying to bring the two systems into line is that
      human rights law derives from a western legal tradition which
      frequently contradicts Aboriginal law.

      International agreements such as the UN convention on human rights -
      to which Australia is a signatory - and public revulsion at punishments
      such as burning with fire and piercing with spears would have to be
      overcome if customary law were to be recognised in its entirety.

      While most Australian judges would be expected to step down if they
      did know the defendant, under customary law they would be all but
      disqualified from the case if they did not.

      Similarly, ideas about open justice run counter to a system in which
      much of the law is known only to high-ranking men, who must preserve
      its secrecy for religious reasons.

      Colin McDonald, a Darwin barrister and expert in customary law, says
      that on such issues Australia's legal system may simply have to bite the
      bullet and go against the norms of international human rights.

      "Human rights are essentially a creation of the last hundred years.
      These people have been carrying out their law for thousands of years,"
      he says.

      Not everyone takes such a sanguine view. Aboriginal women have
      often claimed that the law has been slanted to support the rights of
      indigenous men over women.

      In one recent case a 50 year-old-man previously convicted of the
      manslaughter of his former wife was given a 24-hour prison sentence in
      a Northern Territory court for allegedly forcing sex on a 15-year-old girl.

      Jackie Pascoe Jamilmira had been paying the girl's family with gifts
      since her birth so that she would become his wife upon coming of age.
      In her statement to the police the girl said that he had punched her, trod
      on her neck and raped her. When her family arrived the next day and
      tried to take her away, Pascoe drove them off by firing a shotgun in the
      air.

      Charged with indecent assault, Pascoe was sentenced to 13 months,
      but it was reduced to 24 hours on review. Justice John Gallop said that
      he was given a custodial sentence only because it was mandatory in
      the territory, and added that the police need never have known about
      the case if he had not fired the gun.

      "She didn't need protection [from white law]," he said. "She knew what
      was expected of her. It's very surprising to me he was charged at all."

      Lowitja O'Donoghue, who formerly chaired the government's Aboriginal
      affairs body Atsic, believes that Australian law should be more
      aggressive in such cases. "As a woman I would want to have some say
      in who I marry," she says. "Men just think they have rights over women
      and a woman's body. Women need to be protected from that."

      A former nurse who spent many years dealing with the consequences
      of payback spearings, she also has mixed feelings about the traditional
      corporal punishments.

      "When I was working out there we just couldn't stand by and see a
      spear wound become infected without doing anything. It's barbaric and I
      don't like it. But at the same time, when it's done, all the parties feel
      that justice has been done."

      Some aspects of Aboriginal law are falling out of practice. Capital
      punishment, which was common in traditional communities, has long
      since disappeared, and corporal punishment is increasingly reserved
      for the most extreme cases.

      Chris Sidoti believes that whatever balance is struck will be as distinct
      from traditional European law as it is from traditional Aboriginal law.
      "For traditional people, being put in jail is more inhuman than spearing,
      and any unified law would have to recognise that. We can't get people
      to abandon their customs without examining our own customs as well."

      from: http://www.guardian.co.uk/australia/story/0,12070,866421,00.html
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