Customary Law
a) Lack of understanding of the previous law
Section 91 of the Northern Territory National Emergency Response Act is clearly premised on the former Federal Government’s belief that customary law has been used as a ruse by defence lawyers to improperly gain lesser sentences and to inappropriately obtain bail.14
NAAJA overwhelmingly rejects this gross over simplification of the previous law. It shows a fundamental lack of understanding of the operation of the sentencing process and of the case law and legislation pertaining to raising customary law issues in criminal law proceedings in the Northern Territory. These misunderstandings permeate through the media and wider society, preventing the community from having an informed debate about these complex and at times controversial issues.
In a leading judgment on the sentencing process, the High Court stated that:
“The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the courts exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.” 15
The Court went on to discuss sentencing of an Aboriginal person and said that:
“Aboriginality of itself, therefore, is neither an aggravating nor a mitigating factor, but facts which exist only by reason of the offender being an Aboriginal may be. There may by many circumstances which only arise as a result of an Aboriginal being involved in the cultural affairs of his race which can be taken into account as a circumstance surrounding the commission of an offence.”16
Prior to the intervention legislation, the most recent case law in the Northern Territory on customary law in criminal proceedings was that:
“It is not in contention that where Aboriginal customary law conflicts with Territory law the latter must prevail. Similarly, there is no doubt that an Aboriginal person who commits a crime because he is acting in accordance with traditional aboriginal law is less morally culpable because of that fact”17
The cases show that the courts distinguish between a person being less morally culpable and condoning their actions:
“Recognising these beliefs and their effect upon your culpability is not to condone what you did, but simply to recognise as a factor relevant to sentence the effects of your culture and your state of mind at the time.”18
This distinction continues even where there is pressure on a person to take certain actions and also some level of cultural obligation to do as they did:
“… there was evidence that the offender knew that what he was doing was against Northern Territory law, but there was also a finding that he was under pressure as well as some level of obligation under his culture to act as he did. The members of the Court accepted that these were mitigating factors, although the weight to be attributed to them was not such as to warrant significant leniency”19.
The reason that the courts did not warrant significant leniency to the mitigating factors is that:
“Whilst proper recognition of claims of mitigation of sentence must be accorded, and such claims will include relevant aspects of customary law, the Court must be influenced by the need to protect women and children, from behaviour which the wider community regards as inappropriate.”20
These amendments also appear to have been based on a misunderstanding of how customary law can be raised in criminal proceedings in the Northern Territory. Before a party can present information to a court about “an aspect of Aboriginal customary law (including any punishment or restitution under that law) that may be relevant to the offender or the offence concerned”, the party must give notice of their intention to do so to each of the parties, giving them “a reasonable opportunity to respond to the information”. Then the information must be presented to a court in the form of evidence on oath, an affidavit or a statutory declaration.21 Should any of this evidence be contested, this would then be a factual matter for the Court to decide.
b) Potential consequences both intended and unintended
We have discussed previously the discriminatory aspects of these amendments and our concern that a court may be prevented from considering an offence in its full context22 as it could previously, for example in R v Redford23. In this case, the complainant (date of birth 13 February 1990) and the defendant (date of birth 30 March 1975) had entered into a sexual relationship when the complainant turned 14. A number of affidavits (as required by s 104A) were tendered which established that the defendant and the complainant had entered into a tribally arranged marriage when the complainant was 13 on the basis of an arrangement made four years earlier between the parents of the complainant and the parents of the defendant. These affidavits led Justice Mildren to comment that:
“It is clear from the evidence before me that this marriage was arranged between the family some time ago. However, there were important cultural reasons for the marriage connected with cultural responsibilities to the land and the important cultural ceremonies of your people. It is not necessary to go into this in detail. I accept that there were expectations from both families that this marriage would go ahead and that you felt under some pressure to meet these expectations, although you were not forced into it. It was something you yourself wanted. I also accept that the marriage took place openly with the consent and the blessing of the families of both you and the child and that the marriage could not go ahead until the child's parents had decided that she was old enough and that his had occurred in your case. I also accept that this is still a strong tradition in the Maningrida area and has been the way of your people for thousands of years. Nevertheless, things are changing even in your community and now it is not always the case that promised marriages still go ahead.”
This evidence was important as it led to Justice Mildren describing the offender in the following way:
“You are not a sexual predator. There is no suggestion that you took advantage of this child out of lust or in order to exercise control over her. There is no suggestion that you used any pressure or force of any kind … I have borne in mind the purposes for which subsequent offending can be used in the sentencing process .... In all the circumstances, I consider there must be a period of imprisonment to deter others from offending in this way, to underline the message that offences of this nature will not be tolerated and to express the Court's disapproval of your conduct.
However, it is clear that the community does not need to be protected from you …”.
We are extremely concerned that as the law stands currently, defendants in similar positions may be prevented from raising such issues before the court and thus risk being viewed improperly as “sexual predators”. Our concerns are exacerbated because in our experience, there have been trends where:
- there are more defendants being charged in such situations than previously, because of changes in the way police and prosecution services have been exercising their discretion; and
- courts are now issuing heavier penalties for such offending than previously and in the vast majority of cases, this includes actual terms of imprisonment.
The issue of customary law in criminal proceedings is complicated and controversial. Much of the controversy stems from misunderstandings perpetuated in the media, which have now been reflected in legislative amendments which are discriminatory and unnecessary. Prior to these amendments, there was provision for evidence about an aspect of Aboriginal customary law to be placed before a court and tested should any matters be in dispute. The Court would then consider this evidence, as it considers any other material fact in reaching its decision. This decision can then be reviewed by higher courts if either party appeals the decision.
14. This was at a lecture by Mal Brough “Public Policy: Responses from the Ground” at Charles Darwin University on 28 July 2008
15. Neal v R (1982) 149 CLR 305 at 326 per Justice Brennan at 326.
16. Ibid
17. R v GJ [2005] NTCCA 20, per Mildren J at paragraph 30
18. R v GJ [2005] NTCCA 20, per Mildren J at paragraph 23
19. R v GJ [2005] NTCCA 20, per Mildren J at paragraph 31
20. Hales v Jamalmira (2003) 13 NTLR 14 per Riley J at paragraph 88
21. Sentencing Act (NT) s 104(1)
22. See pages 13 and 14 of previous submission
23. R v Redford per Mildren J, Northern Territory Supreme Court 26 March 2007 http://www.nt.gov.au/ntsc/doc/sentencing_remarks/2007/03/20070323redford.html