One Law For All?

Editorial: One law for all
May 26, 2006
Our legal system must reinforce Australian values

LAST August The Australian informed a horrified country of the case of a 14-year-old Aboriginal girl from the Northern Territory who was taken from her home against her will by a 55-year-old community elder, who took her to his outstation, bashed her with a boomerang and had anal sex with her over two days. The sentence for this crime? Due to the mitigating factor of tribal custom, the elder received just one month behind bars. And while Northern Territory Chief Justice Brian Martin, who handed down the original sentence, has admitted his error in this case, the new sentence of three years handed down by an appeals court still feels manifestly inadequate. Last week, in response to this and other outrages, the federal Government called for the removal of Aboriginal customary law from the list of circumstances judges can take into account in deciding sentences for criminals in the Northern Territory. This seems to have run smack into the Commonwealth Racial Discrimination Act on the grounds that it unfairly singled out Aboriginal tribal law. In response, Indigenous Affairs Minister Mal Brough now proposes that customary, traditional and tribal laws of all stripes be taken out of the sentencing system, saying he does not believe that any sub-group of Australian culture should be allowed to use cultural sensitivity as a defence for criminal behaviour.

This is exactly right. Australian law exists to serve and reinforce the values of the community and cannot bend and twist to treat various groups differently depending on the culture they were raised in. The law must enforce a common set of values and principles. And high on the list of those ideals is the principle that the law is there to protect society's weakest members from the predations of the strong. No one deserves to be sexually assaulted, least of all children, but the evidence suggests that this is happening on an appallingly regular basis in Australia's indigenous communities. Thus the weakest members of society have become the collateral damage of well-intentioned progressives who, after creating a vicious "Big Man" culture in Aboriginal communities through the sit-down money of the welfare state, now seek to preserve it in all its brutality in the name of authenticity. [...] Mr Brough is striking a blow for women and children. In much of Aboriginal society, a culture has developed which allows elders to pick and choose from prepubescent girls. [...] In 2006 much of sharia law as it is practised around the world appears dedicated to turning women into property, first of their fathers and then of their husbands. By excusing violence against women under the guise of any sort of traditional law, the state tacitly sanctions the offence.

Mr Brough is to be applauded for his effort to make sure that the Australian legal system – and not any other system, be it tribal, sharia, or the Napoleonic Code – governs the conduct of all Australians. Despite the complaints of critics, this is not about removing the discretion of judges to hand out what they feel are appropriate sentences, but rather making sure that the law the country's judges apply is solely Australian. Courts in remote areas are replete with stories of judges excusing rapes, assaults and pedophilia through the invocation of the magic words "customary law". [...] No matter which end of the spectrum of seriousness a judge is dealing with, treating Aborigines differently because of their heritage is patronising and counterproductive. Sending the message that certain people are to be treated differently because of the circumstances of their birth denies Aborigines the right to fully integrate and participate in Australian society. By writing the traditional law defence out of sentencing factors, states will send a strong message about lawlessness in Aboriginal communities, which are tragically ill-served by the current regime. Otherwise they will be complicit in yet more crimes against Australia's most defenceless citizens.

One law for all?

Cultural sensitivity toward Anglo-Australians is inherent in the Australian legal system, taken for granted day by day. It is inherent in the white male pioneers who thought up the system, the white male parliamentarians who make the law and the white male judges who enforce it.

Cultural sensitivity toward all other minority groups is to be banned for fear of their innate "lawlessness", their sheer immorality and the danger they pose to "Australian values".

Yes, one law for all indeed. All "Australians" that is.

The moral of the story?
Civil discourse proclaiming justice is but a poor veil for ignorance and racism.