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Madam Deputy Speaker, I move that the bill be now read a second time.
I present to the House Sentencing Amendment Bill, the proposed amendment will remove customary law as a
relevant or mitigating factor in sentencing in cases of sexual offences against minors. At the start I want to make
some points very clear. I believe that a girl’s right before the Northern Territory law and her human rights have the
same weight in court as those of a man. Therefore, matters of customary law involving a man asserting his
traditional rights on a young girl should not be relevant in sentencing for a sexual offence.
My aim is to ensure that Aboriginal girls under the age of 16 have the same rights and protections in law as other
Australian girls. I realise that this amendment may be contentious, but I believe it’s important. I am not proposing
the abolition of promised or traditional marriage, but I am proposing that a young girl be protected from carnal
knowledge against her wishes.
This matter raises several difficult policy areas. Among them are, firstly, the clash of cultures and legal systems.
Secondly, the question of whether a minor’s consent to a promised marriage is informed consent and, thirdly,
whether my proposal is an attack on Aboriginal rights or a move to protect human rights. It’s much easier to say
that such a matter is too hard or too controversial - let’s leave it alone. At the moment, the matter is left to the
vaguely defined discretion of police officers, government officials and community members. Sometimes it appears
to me that in many cases involving Aboriginal women and girls, the prosecution is sometimes reluctant or finds it
difficult to gather the strong evidence they would otherwise collect in similar cases. We all know that some girls of
various backgrounds have sex before they are 16 years old and charges are rarely made against the males involved
unless the sex is unwanted or without consent and reported.
An Australian Law Reform Commission report in 1982 observed that in practice prosecutions for carnal
knowledge were rare in the general community and even rarer in Aboriginal communities. At that stage, the
commission knew of no case in which a tribal husband had been prosecuted for the offence in respect of consensual
intercourse with his underage tribal wife, claiming the existence of the offence might therefore be regarded as a
theoretical problem. But following a case in the Territory last year, it is no longer theory. The fact is that a case
did reach the courts, and that many more such cases may be pursued in the future as the traditional system of
arranged marriages breaks down, because inevitably it will and is. Young men and young women will resist the
arrangements and young girls will seek the protection of Territory laws. This proposed amendment is aimed at
ensuring that they get this protection.
As the Attorney-General has already acknowledged, Aboriginal law encompasses a wide range of unwritten rules
that governs social relationships, economic rights, land ownership, land management and intellectual property rights.
It is about people and land, and people and kinship. Group interests and rights shape customary law.
Promised marriages highlight the inherent difference between the value and belief of our two systems, our two
cultures, in dealing with this very complex social and cultural issue. Several reports acknowledge that customary
marriage practice is a long standing and vexing issue. It is a powerful cultural practice that is still accepted in some
Aboriginal communities. It is a powerful cultural practice that is still accepted in some Aboriginal communities but
it clashes with established legislation and statutory responsibility.
There needs to be a balance struck between supporting Aboriginal law and culture, and enforcing the wider
Australian law, and it is not an easy balance to strike, I admit that. At the heart of this argument, is the standing of
the individual in both systems of law. It is a debate that has been going on in similar terms in the United Nations
for decades: individual human rights versus community rights.
On the one hand, the desires and rights of a young Aboriginal girl might be subjugated for the survival of her
community, regarding its genetic integrity, its kinship systems, maintaining ceremony, and the custodianship of the
land. On the other hand, in the broader Australian society, the young girl’s rights to protection from exploitation by
an older man are paramount. On the one hand, it is unacceptable to condone or take lightly acts of violence or
sexual expectation but, on the other hand, it is desirable to recognise and uphold Aboriginal laws and perceptions
where possible. The Attorney-General has also observed that Aboriginal customary law should be recognised to the
extent that is consistent with universally recognised human rights and fundamental freedoms.
My argument is that, if courts acknowledge traditional marriage as a mitigating or relevant sentencing factor in
sexual cases involving minors, they then - the courts - run the risk of breaching several international human rights
conventions, and of ignoring the human rights of the victim, while upholding those of the offender. I believe there
are several arguments in support of the change. They include: the flexibility of traditional law; the breakdown of
promised marriage systems; the need for equal protection under the law; and the necessity to uphold human rights.
One of the strengths of Aboriginal law is its capacity to adapt to changing circumstances. The rules of marriage
in the past have been flexible and subject to negotiation. For example, a promise might lapse or be re-negotiated
between the parties concerned. The Australian Law Reform Commission, in 1982, acknowledged that although the
system of promised marriage still operated in many traditional communities in Australia, generally it existed in a
variety of modified forms. In an article called Black Responses to White Law, the authors claim that one important
means of survival for Aboriginal law has been its capacity to accommodate European values. So, the
accommodation that I am suggesting with this amendment can be possible.
Promised marriages remained a social practice that Australian law does not preclude, but the law should protect a
promised bride, under 16, from exploitation. In the Territory, there is evidence that promised marriages were on the
decline, even in Arnhem Land, by the mid 1960s. One study found that, of 12 adult females at Maningrida, only
three had married the men to whom they had been promised, and seven had been stolen by other men. In the early
1980s, two incidents highlighting the breakdown of a traditional marriage received national publicity. You may
remember them, Madam Acting Deputy Speaker: a 15-year-old girl ran away from Yuendumu because she did not
want to be part of a promised marriage; and a 19-year-old girl sought refuge from the then member for Nightcliff,
Dawn Lawrie, after the girl had been beaten regularly by her promised husband. The 19-year-old alleged, back
then, 20 years ago, that many young women were running away from unhappy promised marriages. She said they
were often beaten, and pack raped in an effort to make them accept their marriages. In relation to the 15-year-old
girl, Dawn Lawrie put out a press release saying:
I am sick and tired of what I see as a conspiracy of silence on this issue, and call on Territory politicians to make
their views known to us all. For too long, too many have pretended that the slavery of child brides just does not
happen.
I do not think much has happened in the past 20 years. By taking into account promised marriages as a relevant
or mitigating factor in sentencing an offender charged with unlawful carnal knowledge, the court can withdraw the
legal protection that it should be giving to Aboriginal girls. Undoubtedly, some older men will resist this proposed
change because it is not in their interests, and those who choose to attack this amendment must look closely to see
whose rights they believe they are defending.
As the Australian newspaper observed last October, the Territory case was dominated by the man’s interests, the
man’s rights, the man’s cultural sensitivities and the man’s feelings. Let me remind members that Australia is a
signatory to several UN conventions that would support the rights of an Aboriginal girl under the age of 16 to the
full protection of the statutory law. I am not going to quote them all but I do want to include a couple. Article 23,
section 2, of the Civil and Political Rights Covenant of 1966, which states that marriage should be entered into with
the free and full consent of the intending spouses. Underlying Australia’s current marriage act, the Family Law Act,
is the presumption that girls under the age of 18, and of 16 at the very least, should be free to be educated and free
from the responsibility of childbirth. The preamble of the UN Convention on the Rights of the Child says that the
child, by reason of his or her physical and mental immaturity, needs special safeguards and care, including
appropriate legal protection. And article 34 of the same convention says that countries should protect the child from
all forms of sexual exploitation and sexual abuse.
I would just like to quote from one of the many letters I have received. The writer says to me:
I know the current sensitivity of the issue of customary law versus our contemporary law. However, it seems to
me that there is no question of the precedence of human rights, given Australia’s ratification of the UN Human
Rights Convention, and that we must undertake to enforce a standard of care within government, and which
entails a proactive, social responsibility consistent with that declaration and with the simple trust that we must
honour to those in need.
Madam Deputy Speaker, I have circulated my amendment to approximately 40 groups or individuals including
legal, community and women’s groups. I expect this proposal to be opposed in some quarters, perhaps among legal
groups. Such controversy arises when someone moves to implement regulations in an area where the law and the
community have turned a blind eye. It is what happened actually with voluntary euthanasia, if you recall, in this
parliament. We all know it happens quietly and illegally with the cooperation of doctors, nurses, patients and their
families. But when the former Chief Minister, Marshall Perron, moved to create some legal certainty for those
participants and for the community, and the matter was raised for public debate, many people who had always
ignored it, or pretended that it was not happening, felt they had to oppose the legislation.
It is a similar case with promised marriages and under-age girls. In the Northern Territory, the police, the legal
profession and the Aboriginal community have known it has been a continuing practice and have worked out their
own informal ways of dealing with it. But it is no longer good enough because last year’s case has given the issue a
high public profile and community reaction to the case demands that we, as legislators, do something more to protect
young Aboriginal girls.
I expect some to claim that the proposed law is discriminatory because in an unlawful carnal knowledge case, a
judge will not be able to consider all the possible relevant factors when the alleged offender is a male Aborigine. I
will argue that without this amendment, the law will continue to discriminate against young Aboriginal girls who are
not being given the same protection as other Australian girls. Others will claim that it breaches international
conventions that encourage the protection of indigenous cultural practices. I will argue, as I already have, that
without this amendment, we are in breach of other international conventions for the protection of children. Madam
Deputy Speaker, who has the greater rights?
A more difficult argument lies in the claim that the amendment challenges the principle well accepted by the
courts, that aspects of Aboriginality can be taken into account in sentencing. In fact, Justice Toohey has said that
Aboriginality may, in some cases, mean little more than the conditions under which the offender lives. In other
cases, it may be the very reason why the very offence was committed. And here is the gist of the issue. If an
Aboriginal man knew about carnal knowledge in our law, the Australian law, but he also had a young promised wife
and strongly believed in his authority to assert his cultural rights under his law, he would not be committing an
offence. Therefore his Aboriginality contributes to an offence under our NT law. Surely any court has an
obligation to consider the Aboriginality of the victim as well, and to consider in the case of unlawful carnal
knowledge in a promised marriage setting, that if she was not Aboriginal, she would have been given the full
protection of the law.
Although I expect some objections to this amendment, I also expect some support and that support will come
from the people who I believe are most affected in this debate: Aboriginal women and girls. I will quote from a
letter I received from the Aboriginal Women’s Group in Central Australia:
The Executive discussed this at their recent meeting…
And the Executive consists of senior women, and they do mention the communities they represent.
…The women felt very strongly the court should not have any regard to Aboriginal Customary Law where the
victim is under 16 years of age.
They are all too aware of the abuse that is inflicted on children and young girls in their communities. The letter
goes on to say:
One of the main objectives has been to ensure that the Australian legal system protects Aboriginal women and
children from violence.
Madam Acting Deputy Speaker, I am also hoping for support from the Minister for Community Development
who has already told this parliament that the Territory’s legal system in relation to the case last year had failed in its
humanitarian responsibility for the protection of children.
The Attorney-General has also told parliament that Customary Law would not override existing laws. If that is
to be so, then greater care must be taken before acknowledging Customary Law as a mitigating factor in sentencing
and in the case of sex charges against minors, the law should make it clear that the mitigating factor is not available.
Simply put, it cannot be used as an excuse.
What I am suggesting with this simple amendment to the Sentencing Act is a mixture of old and new: that we
accept that there may be promised wives under traditional law, but that those young girls won’t be legally subjected
to fulfilling their sexual obligations until they are aged 16 in line with our law, especially if they don’t consent.
No matter where you stand in this argument, you would have to agree that year by year, the old systems are
breaking down, that incrementally Australian law, in relation to criminal matters at least, will have to prevail. The
government has suggested that I have jumped the gun here, and that instead I should have submitted my views to the
Inquiry into Aboriginal Customary Law that the Territory’s Law Reform Committee is conducting.
I considered that, and then I looked at the timeframe for that Committee’s work. It is taking submissions until
the end of June – that is more than eight months after the inquiry was announced – and then we will have to wait for
the Committee to compile its report, say another six months, and then we have to wait for the government to
respond, possibly up to another six months, and that takes us well into the middle of next year.
This amendment will send a message to all Aboriginal girls and women. With the support of this parliament, we
can have stronger protection for Aboriginal girls in place this August, a good year before the government might
otherwise consider doing so.
I want to thank my Research Officer Lorraine Davies for the assistance she has given me in researching this topic
and to those groups who have already responded to my amendment. I encourage those groups that have not done so
and would like to do so, please, to get in touch with me.
Madam Acting Deputy Speaker, I commend the bill to members.
Debate adjourned.