AUSTRALIA: Tribal Law
- 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
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
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
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
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
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."
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,"
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
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
"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."