We owe this community an approach that honours the wisdom of the oldest living culture in the world, its elders and particularly the women. An approach that says: we believe in you. When Wik people return to activities deeply rooted in their traditions, lores and customs, I see respect, pride, strength and hope.
— Billy Gordon, MP for Cook, speaking at Aurukun, Cape York, in May 2016 after teenage violence forced white teachers’ evacuation and the school’s closure[i]
The Commonwealth of Australia is a liberal democracy based on the rule of law. It allows its citizens the right to publicly air their grievances, to criticise one another and even to show profound disrespect for their leaders, without fear of losing their freedom or their lives. It has a Constitution that guarantees long-term consistency in both the political and legal systems. Its government and courts are conducted in public and its laws are all knowable. Its statute laws are all publicly proclaimed when they are created and its common law can be found through published legal precedents and textbooks. Legal guidance is available to both rich and poor so that all citizens can predict with reasonable precision whether the actions they contemplate will be lawful or unlawful.
Yet Australia’s Aboriginal political class wants a constitutional change that will repudiate not just some of the above but all of it. These activists and their white supporters want to segregate their constituents from this civilised approach to government and law in order to restore self-determination within Aboriginal communities.
The new Labor government that has promised a referendum to change the constitution to fulfil the activists’ demands has not yet defined what it means by “self-determination” — and it will certainly try to avoid spelling it out in its campaign for the referendum. However, the proponents of the Voice have long been clear about their objective. They want to restore the customary laws of the ancient Aboriginal culture that was on this continent before the British came in 1788.
The kind of society Aboriginal activists want to build throughout Australia is not imaginary but has long been real. Its specimens are clearly visible today in the communities in central and northern Australia created since land rights were granted in the 1970s. That was when federal and state Australian governments withdrew their meagre funding of the old Christian missions in remote communities and replaced them with far more expensive regimes run by committees of local indigenous people.
What followed was a long, expensive and dispiriting exercise for those Aboriginal people subject to it. Yet Aboriginal leaders and their white advocates imagine they can solve the problems self-determination has already created by doling out more of the same and replicating their proposals on a much larger scale.
The basis of the “self-determination” that is now being touted has been described by Marcia Langton and Lisa Palmer:
Aboriginal people have continued to argue that not only customary property rights in land but also ancient jurisdictions survive, on the grounds that, just as British sovereignty did not wipe away Aboriginal title, neither did it wipe away Aboriginal jurisdiction. Aboriginal governance under the full body of Aboriginal customary laws, by the same logic as that that led to the recognition of native title at common law must, even if in some qualified way, have survived the annexation of Australia by the Crown. [ii]
Anyone who thinks that our legal profession would automatically reject this and defend the benefits of the English rule of law would be mistaken. In 2000, the New South Wales Law Reform Commission investigated the issue and came out in favour of customary law. Its 2000 report, Sentencing: Aboriginal Offenders, claimed that, for Aboriginal people, customary law was more humane and effective than Western law. Its punishments were largely confined to shaming and banishment and customary law was more culturally rigorous. It included many offences not recognised by Western law such as insulting an elder, singing sacred songs in public, showing sacred objects to women, and neglecting kinship obligations.[iii]
Hence, the report claimed that recognition of customary law by the state’s judicial system would help reduce the incidence of Aboriginal incarceration and deaths in custody, solve the problem of alcohol abuse and “help bring about safer and less violent communities:”.[iv] Not only that, but the report seriously believed that a revival of customary law today would bring about a cultural “renaissance” for Aboriginal people:
Before Aboriginal societies can have equal standing with non-Aboriginal societies, there must be recognition of Aboriginal customs and traditions. Furthermore, recognition of customary laws may bring about a renaissance of those laws: recognition has the potential to motivate Aboriginal people to pool their knowledge and recollections, creating the foundations for a rebirth of dormant customs and traditions. This process could well have the effect of increasing the value of Aboriginal ways and of empowering Aboriginal people, raising self-esteem and self-respect.[v]
However, it is not difficult to show there is no way that customary law could work, or should work, for Aborigines in the modern world. There are at least four problems that no amount of legal dissembling can overcome:
♦ Customary law is unwritten and there is no way to solve differing opinions within Aboriginal society about what the law actually says.
♦ Customary law is not unified or unifiable; each of the more than 200 or so existing clans in remote Australia have their own brand of law and, if it comes to a dispute between them, there are no higher courts of appeal to rule in favour of one or the other. In these cases, the most common traditional recourse of the disputing parties is violence.
♦ The customary concept of “payback” as practised in traditional society, where innocent individuals can be punished along with the guilty, is unjust, illiberal, and under Australian law would often be a serious criminal offence.
♦ The violence permitted by customary law against Aboriginal women and children sanctions actions that are morally offensive to the wider Australian society, and are serious offences against Australian law.
Customary law is immutable and must not be changed by its custodians. It derived from ancient spirit beings who existed in the Dreaming, a sacred heroic time long ago when man and nature were created.[vi] The role of human beings was to obey the law, not make it. As one Pitjantjatjara man put it to an anthropologist: there is “one Law and it is there forever”.[vii] Hence, rather than supporting a renaissance within Aboriginal culture, it is a positive drag on progress and improvement.
It was also male dominated, yet is endorsed by so many female academics and politicians like Marcia Langton, Linda Burney and Megan Davis. In traditional society, male elders kept the higher principles of law and custom secret to themselves. Traditional life for a male was a process of revelation in which male elders gradually released the contents of the secret men’s business that governed them. It would take an initiated man until middle age to gain full knowledge of its secrets. Younger men and all females had little say in how their society was managed, and little opportunity to influence the course of their own lives.
Although male initiates were eventually told the laws of their clan, cases in the Northern Territory have emerged where elders accused of serious crimes have expressed different views about what the law actually says. They have also wanted to allow defences that other elders do not recognise. Bill Stanner’s classic essay, “Durmugam: a Nangiomeri”, discusses how his central character, an Aboriginal leader on the Daly River in the Northern Territory named Durmugam, killed at least four members of the Kunabibi cult because they had broken the laws of that cult. However, two of the victims’ close kin thought the killing had no legal justification and that Durmugam was merely pursuing his own interests.[viii] In other words, unwritten customary law provides scope for some people to have different memories of the law when it suits them.
Traditional culture’s process of “payback” has been observed by Europeans since the first settlement at Sydney Cove in 1788. It has been ubiquitous across the Australian continent, with observations from Victoria to the Northern Territory naming it at times as the chief cause of premature death among Aboriginal people.[ix] In a study of the Murngin people of Arnhem Land in the early twentieth century, Lloyd Warner found:
Of seventy-two recorded battles of the last twenty years in which members of Murngin factions were killed, fifty were for blood revenge — the desire to avenge the killing of a relative, usually a clansman, by members of another clan … The idea underlying most Murngin warfare is that the same injury should be inflicted upon the enemy group that one’s own group has suffered. This accomplished, a clan feels satisfied; otherwise, there is a constant compulsion towards vengeance, causing a continuous restlessness among those who are out to “buy back” the killing of one of their clansmen.[x]
Payback is still practised today. In three murder trials in the Northern Territory in 2000 in which Aborigines were accused of killing other Aborigines, the payback duty imposed by local customary law was used as a defence, even though it had fundamental conflicts with Australian law.[xi] The customary law at issue required that, after the killing of three people from one clan, they should be avenged by the clan of the victims. This could be satisfied by the killing of any three members of the clan of the perpetrators, not necessarily the guilty ones. In other words, an individual who had no part in killing anyone could be put to death in what customary law regarded as just retribution for a murder committed by another member of the clan. But even in its own customary terms, there is nothing “just” about this. Its innocent victims regard it as an unjust and terrifying ordeal. Dave Price records an example of this collective guilt from the Northern Territory in 2009:
A senior woman from Papunya told me that the young ones she was escorting to face traditional punishment were literally pissing themselves with fear. In this case, they were the female kin of the accused male perpetrator. They had to share in his punishment for the crime of being related. It is about revenge and blood lust as well as restoring the balance and maintaining the peace, and the lives and physical well-being of the most vulnerable are expendable in this process. [xii]
Moreover, the payback process did not require any testing of the evidence to determine conclusively who the actual guilty party was. In her book Trouble: On Trial in Central Australia (2016) about the failure of both customary and official law to stem the appalling levels of violence in central Australia in recent years, Kieran Finnane records two cases of this kind. In 2009, in revenge for a non-fatal assault on one of their relatives, six men armed with knives and clubs went searching for the two assailants who they believed were at a drinking party in the bush north of Alice Springs. The two men they wanted were not there, but they attacked the rest of the drinkers anyway, stabbing two of them to death. When interviewed by the police, one attacker was asked by an officer:
‘Were you talking about payback for them blokes then?’ He said, ‘Yeah, got the wrong ones. Wanted to pay back Watson Dixon.’ [The officer] said, ‘Those dead are the wrong ones?’ He said, ‘Yeah, should be Watson.’[xiii]
In another case in 2013 at a town camp near Alice Springs, six members of one family “hunted like a kangaroo” a man as payback for the killing of a female relative. They abducted him in a car to another camp, poured petrol on his genitals and set him on fire, and finally clubbed and stabbed him to death. However, their victim could not have been the woman’s killer. He was in jail at the time she died. He had done nothing to provoke the attack on him and had not caused any harm to any of his killers or their relatives. Despite the evidence, his killers denied payback was their motive, and successfully pleaded guilty to manslaughter while drunk, rather than murder.[xiv]
In some cases of payback, an aggrieved relative of the person killed could discover the name of the killer in a dream.[xv] Anthropologist Kenneth Maddock argues that traditional Aboriginal society believed death always had a human cause and usually was the result of sorcery. Death was “induced by the sorcerer using his art to separate irrevocably the bodily and spiritual parts of his victim’s person”.[xvi] Sorcery meant that Aborigines ruled out the possibility of death by accident or misadventure. Ronald and Catherine Berndt wrote:
Even wounding or death in fighting may be seen in this light. The immediate cause may be a spear thrust; but the real cause may be the hostile action of a third person, who has arranged the situation in advance to ensure that the victim was in the right position at the right time.[xvii]
The belief that all deaths were caused by malign humans led to the corollary: that it was necessary to avenge deaths by punishing the suspected murderer. If before his or her demise, an Aborigine did not reveal the name of those who caused it, Aboriginal inquests would look for signs in nature that would identify the sorcerer responsible. These beliefs created societies permanently bent on revenge against neighbouring tribes. And if the sorcerer could not be found, then the killing of other individuals from the same clan would satisfy the payback duty.
These principles offend not only against Australian law but also against international law and legal procedures, as well as international notions of human rights, not to mention all civilised moral values. Payback is in direct conflict with the integrity of Australia’s liberal society, which is founded upon the dignity and worth of the individual. If an autonomous Aboriginal community within the Commonwealth established a regime that, instead of performing payback illegally and covertly as happens now, embedded it in its own customary law, the Australian government would have a moral duty to intervene to overturn it. However, the kind of constitutional change recommended by today’s Aboriginal political class would legitimise acts of this kind.
The strongest argument against customary law is that the interests of Aboriginal people themselves are better served by the legal system we inherited from the United Kingdom and have since been modifying to suit the needs of all Australians. Despite frequent claims to the contrary by legal academics steeped in the currently fashionable doctrine of cultural relativism, the framework of laws and the concepts of justice inherent in the Australian system are not ethnocentric, that is, they have not been established only for people of Anglo-Celtic or European background, even though that is the cultural environment in which they first developed. They incorporate the accumulated experience of the English common law, of accurately recorded statutes developed over the course of centuries within a complex, rapidly changing, modern urban society with global interests and responsibilities. There is no way that the memorised customary law of Aboriginal tradition, designed to regulate kinship relations in a hunter-gatherer society, could have a just place alongside it.
[i] Billy Gordon, ‘Knee-jerk reactions got Aurukun here’, The Australian, 30 May 2016, p 14
[ii] Marcia Langton and Lisa Palmer, ‘Modern Agreement Making and Indigenous People in Australia: Issues and Trends’, Australian Indigenous Law Reporter, 8, 1, 2003
[iii] NSW Law Reform Commission, Sentencing: Aboriginal Offenders, Report 96, Sydney, October 2000, p 62
[iv] NSW Law Reform Commission, Sentencing: Aboriginal Offenders, p 71
[v] NSW Law Reform Commission, Sentencing: Aboriginal Offenders, pp 71–2
[vi] Stanner, ‘The Dreaming’, pp 51–2
[vii] quoted by Maddock, ‘Sceptical Thoughts on Customary Law’, in Johns (ed.) Waking Up to Dreamtime, p 163, citing D. Vachon, ’Political Consciousness and Land Rights among the Australian Western Desert People’, in E. Leacock and R. Lee (eds.) Politics and History in Band Societies, Cambridge University Press, Cambridge, 1982, p 483
[viii] W.E.H. Stanner, ‘Durmugam: A Nangiomeri’, in J. B. Casagrande (ed.), In the Company of Man, Harper, New York, 1960, p 71
[ix] Beverley Nance, ‘The level of violence: Europeans and Aborigines in Port Phillip, 1835–1850’, Historical Studies, 19, 77, October 1981
[x] W.L. Warner, A Black Civilisation: A Social Study of an Australian Tribe, Harper and Brothers, New York, 1937, p 159
[xi] Paul Toohey, ‘Murder, sorcery and tribal law spill bad blood between native leaders’, The Weekend Australian, 25-26 November 2000, pp 1–2
[xiii] Kieran Finnane, Trouble: On Trial in Central Australia, University of Queensland Press, St Lucia, 2016, p 82
[xiv] Finnane, Trouble: On Trial in Central Australia, pp 228, 233–5, 244
[xv] Stanner, ‘The Dreaming’, p 53
[xvi] Kenneth Maddock, The Australian Aborigines: A Portrait of Their Society, Penguin, Ringwood, 1975, pp 161–2
[xvii] R. M. and C. H. Berndt, The World of the First Australians (1964), Ure Smith, Sydney, 1977, p 306, cited by Nance, ‘The Level of Violence’, p 535