Customary Law

Transcript of Proceedings (Supreme Court of the Northern Territory, Gallop A/J , 8 October 2002) JA 49 of 2002 (20112873) <http://www.nt.gov.au/ntsc/doc/sentencing_remarks/archives/Pascoe_08102002.html> at 10 February 2007.

Transcript of Proceedings (Supreme Court of the Northern Territory, Martin CJ, 11 August 2005) NTSCC 20418849 <http://www.nt.gov.au/ntsc/doc/sentencing_remarks/2005/08/gj_20050811.html> at 10 February 2007.

R v GJ (2005) 16 NTLR 230.

See Davis Megan McGlade Hannah , ‘International Human Rights Law and the Recognition of Aboriginal Customary Law’ in Law Reform Commission of Western Australia (LRCWA), Aboriginal Customary Laws: Background Papers, Project No 94 (January 2006) for an excellent discussion of this and other related issues. See also Cuneen Chris Schwartz Melanie , ‘Customary Law, Human Rights and International Law: Some Conceptual Issues’ in LRCWA, Aboriginal Customary Laws: Background Papers, ibid; and LRCWA, Aboriginal Customary Laws: Discussion Paper, Project No 94 (December 2005) Pt 7 for a constructive contribution to the debate.

Specifically, Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (CEDAW), and Convention on the Rights of the Child, opened for signature 20 November 1989, ILM 28 1448 (entered into force 2 September 1990) (CROC). The International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), is another relevant instrument. Australia has ratified both Conventions and the ICCPR but they have not been enacted into Australian domestic law.

Pascoe v Hales, above n 1.

Toohey Paul , The Australian (Sydney), 9 October 2002. The words do not appear in the online report. This records: ‘When I heard the facts I was somewhat surprised that the appellant had been charged in all the circumstances…’.

This defence has been rescinded by s 5 of the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 (NT).

Douglas Heather , ‘“She Knew What Was Expected of Her”: The White Legal System's Encounter with Traditional Marriage’ (2005) 13(2) Feminist Legal Studies 181–203.

Hales v Jamilmira (2003) 13 NTLR 14.

Transcript of proceedings, Jamilmira v Hales [2004] HCA Trans 18 (13 February 2004). For a discussion from defence counsel's perspective see Bryant Gerard , ‘Promised Marriages: The Jackie Pascoe Case’ (2003) 5(23) Indigenous Law Bulletin 20.

Not the same Chief Justice as the one in Pascoe/Jamilmira but coincidentally both are called Brian Martin.

R v GJ, above n 2.

The sentences have support from a member of the defence team: See O'Connell Stewart , ‘Time for Change’ (2006) 3 May/June Balance 26–35.

This point was stressed both in the Northern Territory Court of Criminal Appeal and the High Court where an application for special leave to appeal was refused: GJ v The Queen [2006] HCA Trans 252 (19 May 2006).

R v GJ, above n 3.

See HREOC, Submission to the Northern Territory Law Reform Committee Inquiry into Aboriginal Customary Law in the Northern Territory (14 May 2003) <http://www.humanrights.gov.au/social_justice/customary_law/nt_lawreform.html#44> at 10 February 2007.

Ibid.

HREOC's brief but excellent submission to the Court of Criminal Appeal in R v GJ supports this view. It stresses that any consideration given to Aboriginal customary law in the sentencing process should be carried out consistently with human rights principles that are recognised in the international treaties to which Australia is a party. See <http://www.hreoc.gov.au/legal/intervention/queen_gj.html> at 10 February 2007. The Court refused HREOC's applications for leave to intervene or appear as amicus curiae.

See Davis McGlade , above n 4, 391–4 for the approach of the Australian courts towards international conventions. For a recent Northern Territory case where CROC and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) 1985 were referred to see MCT v McKinney (2006) 18 NTLR 222.

For more on the Conventions, Australia's international obligations and promised brides see LRCWA, Aboriginal Customary Laws: Discussion Paper, above n 4, 332–4 and the Northern Territory Law Reform Committee (NTLRC), Report on Aboriginal Customary Law (August 2003) 23–4 <http://www.nt.gov.au/justice/docs/lawmake/ntlrc_final_report.pdf> at 10 February 2007.

My thanks to Ruth Brebner for bringing this to my attention.

R v GJ, above n 2.

See the citations at Davis McGlade , above n 4, 389, 403–4, 425. The authors suggest that the adversarial nature of the legal system gives white counsel representing Aboriginal men the chance to employ distorted custom as a defence.

Bolger Alice , Aboriginal Women and Violence, Report for the Criminology Research Council and the Northern Territory Commissioner of Police, Northern Australia Research Unit, Darwin (1991) 4, 50. See also NTLRC, Report on Aboriginal Customary Law, Background Paper 1, 16. Davis McGlade , above n 4, 403–5 quote other commentators supporting this view.

Sentencing Amendment (Aboriginal Customary Law) Act 2004 (NT).

Section 104A of the principal Act. Male elders gave evidence under the Act in R v GJ. In the High Court Kirby J tellingly noted that no women were called upon to give evidence.

Australian Broadcasting Corporation, ‘Crown Prosecutor speaks out about abuse in Central Australia’, Lateline, 15 May 2006 <http://www.abc.net.au/lateline/content/2006/s1639127.htm> at 10 February 2007.

For the text of the Communiqué see <http://www.coag.gov.au/meetings/140706/index.htm#indigenous> at 10 February 2007.

It came into force on 12 December 2006.

See <http://www.hreoc.gov.au/about_the_commission/speeches_president/20061031_darwin.html> at 10 February 2007.

See <http://notes.nt.gov.au/lant/hansard/hansardd.nsf/WebbyDate/9D10C7C0EFB0F1CC69257236000299EF>.

LRCWA, Aboriginal Customary Laws — The Interaction of Western Australian Law with Aboriginal Law and Culture, Final Report Project No 94 (2006) Appendix A.

See s 4 of the HREOC submission to the NTLRC inquiry: Above n 17.

Kenneth Dorosthy Silas Henlyn , ‘Vanuatu: Traditional Diversity and Modern Uniformity’ in Institute of Pacific Studies, Land Rights for Pacific Women (1986) 68–9.