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Brown, Ken --- "Customary Law: Sex With Under-Age 'Promised Wives'" [2007] AltLawJl 4; (2007) 32(1) Alternative Law Journal 11

  • CUSTOMARY LAW: Sex with under-age ‘promised wives’
    Sex with under-age ‘promised wives’

    KEN BROWN[*]

    In the DownUnderAllOver columns of the Alternative Law Journal in June 2003 [vol 28, no 3], October 2005 [vol 30, no 5] and March 2006 [vol 31, no 1], I reported briefly on this issue. The first two reports were critical of the slap-on-the-wrist sentences handed down by Gallop AJ and the Chief Justice of the Northern Territory in Pascoe v Hales[1] and R v GJ[2] respectively. The third report commented on the successful appeal against the inadequacy of the sentence in R v GJ.[3]

    This article will argue that some judicial officers attach too much weight to claims made by defendants seeking to justify their actions by reference to cultural factors and traditional beliefs. As a corollary they do not properly take into account the feelings of, or harm done to, child victims or the expressed need of the relevant legislation to protect young girls.

    Whether modern individual-based human rights should prevail over the custom of traditional communities when the two clash is a controversial question and too complex to discuss in detail here.[4] The position taken in this article is that in the 21st century modern international human rights conventions[5] implemented to protect women and children should carry more weight than the claims of middle-aged men that they are acting in accordance with their culture and traditional beliefs. I will also briefly consider whether there is a distorted or ‘bullshit’ version of customary law put forward by men to justify their misbehaviour towards women and young girls.

    The Pascoe/Jamilmira case

    The 49-year-old Aboriginal defendant pleaded guilty to charges of unlawful sexual intercourse with a 15-year-old girl and with discharging a firearm in public. The Magistrate sentenced him to a total of 13 months imprisonment to be suspended after four months. In a recorded police interview the defendant said, ‘[s]he is my promised wife. I rights to touch her body’. When asked in the interview if he was aware that it was an offence to have sex with a 15-year-old girl, the defendant replied, ‘[y]es, I know it’s called carnal knowledge. But it’s Aboriginal custom, my culture. She is my promised wife’.

    Whilst the offence involved no more duress than might be expected when a middle-aged man pressures a young girl for sex the agreed facts make it plain that the girl was an unwilling participant. Her victim impact statement records, ‘I am angry for what he done. I was sad and upset. I think about it all the time. I always get angry with everyone. This makes me upset’.

    The Pascoe/Jamilmira case on appeal: Gallop AJ

    On appeal, Gallop AJ reduced the sentence on the unlawful sexual intercourse charge to twenty-four hours imprisonment, on the basis that the defendant had been acting in accordance with his custom as the girl was his ‘promised wife’.[6] According to media reports, Gallop AJ contentiously said, ‘[s]he didn’t need protection [from white law], she knew what was expected of her … it’s surprising to me [Pascoe] was charged at all’.[7]

    An important point, overlooked by Gallop AJ, is that it is doubtful that the defendant was acting in accordance with custom. The evidence that was led as to custom suggested that a girl’s parents had to hand her over or send her to the promised husband before the marriage could be considered formalised. There was no evidence that this had been done and indeed the defendant never claimed that he was married to the girl. Consequently, his actions amounted to a ‘pre-emptive strike’ not justified by traditional norms. Had he proved a valid customary marriage that would then have been a defence to the sexual offence.[8]

    Remarkably, the Judge did not even pay lip service to the feelings of the girl or acknowledge any trauma she may have suffered. His approach strengthens the contention of Heather Douglas that the courts, lawyers and anthropologists historically have paid too much attention to claims of cultural justification made by male offenders and have not properly heard and considered the feelings of female victims.[9]

    The Pascoe/Jamilmira case on appeal: the Court of Criminal Appeal

    On a Crown appeal, the Northern Territory Court of Criminal Appeal ruled that the sentence imposed on the unlawful sex charge was manifestly inadequate.[10] After allowing for the ‘double jeopardy’ principle they imposed a sentence of 12 months imprisonment, to be suspended after one month had been served. Chief Justice Martin emphasised the importance of protecting the young and vulnerable commenting:

    [26] I am of the opinion that notwithstanding the cultural circumstances surrounding this particular event, the protection given by the law to girls under the age of 16 from sexual intercourse is a value of the wider community which prevails over that of this section of the Aboriginal community. To hold otherwise would trivialise the law and send the wrong message not only to Aboriginal men, but others in Aboriginal society who may remain supportive of the system which leads to the commission of the offence.

    Justice Riley noted that the defendant knew his conduct constituted an offence against the criminal law of the Northern Territory and commented:

    [32] … it was an offence made the more serious by virtue of the respondent deliberately choosing to offend. He knew that to proceed as he did constituted an offence and he described that offence as ‘carnal knowledge’. Notwithstanding his level of awareness he chose to proceed. Whilst it may be said that he has done so in part believing he had a right and, possibly, some level of obligation under his culture, it is not suggested in any of the material before the court that there was any reason why he could not wait until Ms A had turned 16 years of age at which time his conduct would have been lawful. He may have been under some cultural pressure to proceed as he did, but it was not suggested that he was under any cultural imperative to proceed as he did, when he did. The respondent was able to comply with the law of the Northern Territory and with obligations imposed upon him under customary law. He deliberately chose not to do so. He acknowledged that he proceeded on the basis that he thought he would not be caught.

    Justice Riley also underlined the need to protect women and children saying:

    [33] … the court must be influenced by the need to protect members of the community, including women and children, from behaviour which the wider community regards as inappropriate.
    [34] … It [the sentence] does not reflect the seriousness of the offending nor does it recognise the community expectation reflected in the legislation that young females ought to be protected. A significantly greater head sentence was called for.

    The High Court refused an application for special leave to appeal.[11]

    R v GJ: the Chief Justice

    The defendant, a 55-year-old Aboriginal man, came up for sentencing before Chief Justice Martin[12] after pleading guilty to charges of assault on, and sexual intercourse with, a 14/15 year-old girl he claimed had been promised to him as a wife when she was four.[13]

    Briefly, the facts revealed that the defendant and the girl’s grandmother, suspecting that the girl had had a sexual relationship with a boy, went to the house where the girl and boy had stayed. The grandmother took the girl from the house and the defendant struck the girl with some force over her shoulders and back with a boomerang. The girl was taken to the grandmother’s house where the defendant struck her in the area of her shoulders and arms. The girl did not really know the defendant except as ‘the old man’. The defendant, with the complicity of the girl’s grandmother, then forcibly took the girl, who was crying and shaking, from her home to an outstation where he lived. His wife and children lived there with him. On the first evening there he took the girl by her leg and dragged her to a bedroom and tried to have intercourse with her but desisted after she kicked out and screamed. The next night he went into the bedroom again and asked for sex. At the time, he threatened her with a boomerang. He had anal intercourse with the girl who was crying. She was in pain and sustained a deep laceration at the edge of her anus. When examined later by a doctor she had other painful areas on her body. The child reported the matter to the police and said, ‘I told that old man I’m too young for sex, but he didn’t listen’. She also told the police that she was ‘at that old man’s place for four days’, and that she was crying ‘from Saturday to Tuesday’.

    From the outset, the defendant claimed that he had acted within his traditional rights in striking the child and having sexual intercourse with her since she was his promised wife. He said he did not know his actions breached the laws of the Northern Territory. The defendant was not charged with rape since the Crown conceded that he believed intercourse with the child was acceptable. This was because she had been promised to him and had turned 14 and that, based on his understanding of and upbringing in his traditional law, notwithstanding the child’s objections, he believed that she was consenting to sexual intercourse.

    The Chief Justice regarded the matter as serious, commenting:

    As to the offence of sexual intercourse, that was a very serious offence. This is not a case of two young people getting together. This is a case of an older man forcing his attentions upon a young child who was not consenting and was objecting to what was happening. You took the child from her home and physically assaulted her, physically struck her. You were not being a caring and loving person who was trying to get to know your promised wife. You struck her on separate occasions and then you took her to your home where she was completely isolated from her family and isolated from any real support. You threatened her with a boomerang and you then performed a forceful act of anal intercourse. The child suffered pain and was injured by your act.

    The Chief Justice took into account the defendant’s lack of knowledge that he was committing an offence against Northern Territory law and his belief that what he did was permissible and justified by his law, his good record, personal circumstances and background. Having done so, he sentenced him to five months imprisonment for the assault and 19 months consecutive for the unlawful sexual intercourse; a total of two years. On the sexual offence charge he said:

    On the second count of the unlawful sexual intercourse, had it not been for your plea of guilty I would have regarded a sentence of two years’ imprisonment as appropriate. Making a deduction for your plea of guilty, I impose a sentence of 19 months’ imprisonment and direct that it be served cumulatively upon the sentence of five months imposed on count 1.

    Even if a sentence of two years was a ‘net’ period after taking into account mitigating factors it still seems pitifully short in view of the aggravating factors and the statutory maximum of 16 years.[14] This was not a typical Romeo and Juliet young-lovers scenario. The 40-year age disparity, premeditation, violent assaults and threats, abduction and keeping of the girl against her will, and anal intercourse causing injury surely put the case at the middle to upper end of the scale for this offence. A head sentence of seven or eight years would not have been out of place.

    Having taken a remarkably lenient starting point the Chief Justice compounded this by saying:

    Mr GJ, I have a great deal of sympathy for you and the difficulties attached to transition from traditional Aboriginal culture and laws as you understood them to be, to obeying the Northern Territory Law. Under the circumstances, however, I have reached the conclusion that a sentence to the rising of the court would be inadequate. The shortest period I can see fit to impose is that you serve one month.

    Nowhere does the Chief Justice mention that the maximum penalty for the sexual offence had been more than doubled from seven to 16 years imprisonment in 2004.[15]

    The decision prompted public expressions of concern from the Federal Minister for Justice, the Chief Minister of the Northern Territory and others. A group of prominent Territory women sent an outraged letter of protest to the local press pointing out that the rights of young women seemed to be secondary to those of senior men claiming to act in accordance with their traditional ways.

    R v GJ on appeal: the Court of Criminal Appeal

    The Northern Territory Court of Criminal Appeal noted that the maximum penalty for this offence had recently been increased from seven to 16 years.[16] Justice Mildren went on to comment:

    [36] One purpose of s 127(1)(a) of the Code is to protect young persons from entering into sexual relations before they are mature enough to do so and to have weighed up the possible consequences. Another is to deter older persons, especially men, from taking advantage of the immaturity of the young in order to satisfy their lust or in order to exercise control over their victims. In the context of a case such as this, where a promised marriage is involved, whilst the law has stopped short of making such marriages illegal, such marriages cannot be consummated until the promised wife has turned 16. Plainly the purpose of s 127(1)(a) in that context is to give Aboriginal girls some freedom of choice as to whether or not they want to enter into such a marriage and to thereby empower them to pursue equally with young Aboriginal men employment opportunities or further education rather than be pushed into pregnancy and traditional domesticity prematurely.
    [37] … In R v Wurramara [1999] NTCCA 45; (1999) 105 A Crim R 512 this Court said at [26]: ‘The courts have been concerned to send what has been described as ‘the correct message’ to all concerned, that is that Aboriginal women, children and the weak will be protected against personal violence insofar as it is within the power of the court to do so.’
    [38] The sentences imposed failed to punish the respondent adequately for the crimes he committed and failed to act as a deterrent to others who might feel inclined to follow their traditional laws.

    After taking into account the plea of guilty and other mitigating factors a head sentence of about five years was considered appropriate. However, in view of the ‘double jeopardy’ principle, the Court imposed a head sentence of three years, six months on the unlawful sex charge and six months on the assault charge. Most of the sentence was suspended on conditions and the Court directed that the defendant should serve a minimum of 18 months before release.

    Human rights and the protection of women and children

    The Australian Human Rights and Equal Opportunity Commission (HREOC), in their submission to the Northern Territory and Western Australian inquiries into the recognition of customary law, stated:

    All proposals for the recognition of Aboriginal Customary Law in Australia have taken as their starting point that any such recognition must be consistent with human rights standards. The Social Justice Commissioner endorses this requirement as essential to any recognition of Aboriginal Customary Law.[17]

    Of special relevance to the debate is art 27 of the International Covenant on Civil and Political Rights (ICCPR) which provides:

    In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

    The discussion in the HREOC submission emphasises that the rights that those who belong to minorities enjoy under art 27 of the ICCPR in respect of their language, culture and religion are not absolute. As HREOC observes, the ICCPR does not authorise the state, a group or an individual to violate the right to the equal enjoyment by women of any of the rights in the ICCPR, including the right to equal protection of the law. HREOC also points out that:

    The provisions of the ICCPR are also to be read consistently with the interpretation of similar relevant rights under other conventions. So, for example, Article 27 alongside the guarantees of non-discrimination, equality of men and women, and equality before the law in Articles 2, 3 and 26 of the Covenant should be read consistently with related provisions of the Convention on the Elimination of All Forms of Discrimination Against Women.[18]

    The judgments reviewed above reveal a divergence of judicial approach. The last quoted passage is a welcome development in that it settles the protection of women and young girls as a primary consideration.

    On the evidence, the criticism that some in the judiciary attach more weight to traditional law factors argued on behalf of the offender than they do to modern human rights norms designed to protect young girls is well founded.[19] This hardly sends a message of reassurance to young girls that the law will protect them or encourage them to report this sort of sexual abuse. Contemporary standards are enshrined in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CROC). Australia is a state party to both these conventions and it is somewhat surprising that they were not referred to in any of the judgments.[20] Article 16(2) of CEDAW expressly states that the betrothal and marriage of a child shall have no legal effect and art 3(2) of CROC provides:

    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.[21]

    There are some in the judiciary who are alert to the rights and feelings of women and children. In the Court of Criminal Appeal in Hales v Jamilmira, Riley J, when listening to the appellant’s arguments about the right to preserve custom and tradition pointedly observed: ‘But what about the victim? Has anyone asked her if she wants to preserve customs and tradition?’[22] This emphasis on the victim is surely the preferred starting point.

    Cultural relativists maintain that outsiders cannot make moral judgments about the values of another culture, as such judgments are conditioned by the culture in which the person making the judgment was raised. This is, superficially at least, an attractive argument but may compel critics to turn a blind eye to practices that are arguably unsupportable by any standard. Proponents of a forceful interpretation of cultural relativism dismiss liberal notions of human rights as western, white, middle-class meddling, irrelevant or inappropriate to traditional cultures. Nevertheless, the traditionalist camp may be blocking progress on human rights charters and furthermore those who erect ‘keep out’ signs in respect of custom are usually men and may be doing so to retain social control. As the Chief Justice observed in R v GJ:

    What is of concern is that it came through during the evidence today that there is still an attitude amongst some senior male members of this community that if the girl is old enough under Northern Territory law then her promised husband has the right to force her to do what he wants. That belief and that attitude must not continue.[23]

    Distorted, invented or ‘bullshit’ customary law

    Claims by the defendant and male elders in R v GJ that the defendant was acting within his traditional rights in striking and having intercourse with the girl are problematic. Certainly authentic custom would never excuse the perpetration of violent anal intercourse by a 55-year-old man on a 14/15 year-old girl, whether or not she is a promised wife. This sort of sexual abuse would be an anathema in small-scale communities that live according to custom and where social harmony is of paramount concern.

    A growing body of opinion confirms the existence of a ‘bullshit’ version of customary law put forward to justify violence and abuse of women. This ‘bullshit’, invented version bears no relation to true custom and it has been argued that it is a product of community dysfunction.[24] Alice Bolger offers the best concise explanation of the issues in this precis:

    When discussing violence against Aboriginal women, it should be noted that while it is important to distinguish between traditional and non-traditional violence, in practice it is often difficult to do so. Strictly speaking traditional violence refers to clearly defined and controlled punishments which were applied in cases where Aboriginal Law was broken, many of which are still in use in communities where traditional Law is followed. However, it may sometimes be used to describe violence which is not prescribed by Aboriginal Law but which is condoned as a response to socially disapproved behaviour …One result of this [Aboriginal women’s changed role today] is that they are now subject to violence from their own men of a kind which would not have been countenanced in traditional society. As one woman remarked; ‘There are now three kinds of violence in Aboriginal society — alcoholic violence, traditional violence, and bullshit traditional violence’. Women are the victims of all three. By ‘bullshit traditional violence’ is meant the sort of assault on women which takes place today for illegitimate reasons, often by drunken men, which they then attempt to justify as a traditional right.[25]

    A recent amendment to the Northern Territory Sentencing Act 1995 reins in sweeping and unsubstantiated claims being made as to customary law.[26] Under the amendment, parties to criminal proceedings who seek on sentencing to present information regarding aspects of customary law or the views of members of the community, must give notice to the other party and provide information by way of oral evidence in court, affidavit or statutory declaration as to the customary law put forward.[27]

    Sentencing and the furore sparked by the ABC Lateline interview

    The protests that greeted the original sentence in R v GJ were mild compared to the frenzied outcry triggered by the ABC’s Lateline interview 15 May 2006 with Dr Nanette Rogers, a senior prosecutor in Alice Springs.[28] She detailed the facts of several shocking cases of serious sexual assaults on children in Aboriginal communities in Central Australia where custom had not been a factor and also commented on R v GJ. Dr Rogers felt that sexual abuse of children was more widespread than reported cases suggested and that Aboriginal custom practices favoured the male offender rather than the powerless and vulnerable child or female victim.

    Notwithstanding that custom had not been a factor in the more alarming cases outlined by Dr Rogers, the interview provoked a populist response from the federal government. At a Council of Australian Governments (COAG) meeting on 14 July 2006 they secured this statement in the final Communiqué:

    …that no customary law or cultural practice excuses, justifies, authorises, requires, or lessens the seriousness of violence or sexual abuse. All jurisdictions agree that their laws will reflect this, if necessary by future amendment.[29]

    The federal Attorney-General then piloted the Crimes Amendment (Bail and Sentencing) Act 2006 (Cth) into law.[30] In the realm of sentencing for federal crimes, the Act provided that:

    • ‘cultural background’ would no longer be a factor that must be considered

    • courts could not take into account any form of customary law or cultural practice as a reason for ‘excusing, justifying, authorising, requiring or rendering less serious’ the criminal behaviour to which the offence relates.

    The Act has justifiably attracted intense criticism in legal quarters. John Von Doussa, the President of HREOC, put forward a succinct and trenchant critique at an event hosted by the Northern Territory Anti-Discrimination Commission on 31 October 2006.[31]

    In the Northern Territory the Opposition Leader, Jodeen Carney, had introduced the Sentencing Amendment (Cultural Practice and Customary Law) Bill 2006 prior to the recent brouhaha. The Bill sought to prevent courts from having regard to customary law or a cultural practice of a community in sentencing. The Bill failed to attract government support and did not secure a second reading. The Northern Territory government’s view is that the territory’s existing laws comply with the intent of the COAG Communiqué.[32]

    Measures designed to shackle the sentencing discretion are ill-founded in principle and fail to address the core issue. What is essential is that judges are sensitive to the plight of vulnerable victims and ensure that, in the sentencing process, they give proper weight to the standards and values enshrined in contemporary international rights charters.


    Appeal courts have increasingly stressed the need to protect women and children. That their rights under present-day international human rights instruments should prevail over the demands of custom is acknowledged by Recommendation 5 in the Final Report of the Law Reform Commission of Western Australia.[33] This states:

    That recognition of Aboriginal customary laws and practices in Western Australia must be consistent with international human rights standards and should be determined on a case-by-case basis. In all aspects of the recognition process particular attention should be paid to the rights of women and children and the right not to be subject to inhuman, cruel or unusual treatment or punishment under international law.

    The Achilles’ heel for the wider recognition of customary law lies in the arena where it appears to conflict with contemporary human rights values. High profile cases such as Pascoe/Jamilmira and R v GJ generated a vigorous anti-custom reaction from the media, politicians and other commentators underlining that this is the area where customary law is most vulnerable to attack.

    If custom is to be more widely recognised then it must scotch the perception that some aspects of it represent a sclerotic body of hard-line, male-favouring rules at odds with present-day codes on human rights. Die-hard traditionalists argue that custom is immutable but the likely truth is that custom is intrinsically adaptable.[34] In a Pacific context, two ni-Vanuatu women have perceptively observed:

    Custom is a set of rules observed within a particular group. It does not have the same rigidity as law. Rather, custom is a way of life and much of its strength lies in its flexibility. As life and circumstances change so do the rules and, hopefully, women will play a more important role in the future in all matters in Vanuatu …[35]

    There is no reason why, with consultation and education, custom cannot evolve to accommodate human rights agendas on gender equality and the protection of children. Aboriginal women are already far less disposed to accept custom if it is oppressive or used to justify violence against them.

    [*] KEN BROWN is the author of Reconciling Customary Law and Received Law in Melanesia: the Post-Colonial Experience in Solomon Islands and Vanuatu, CDU Press Darwin 2005 and has written several articles.

    © 2007 Ken Brown

    [1] Transcript of Proceedings (Supreme Court of the Northern Territory, Gallop A/J, 8 October 2002) JA 49 of 2002 (20112873) <> at 10 February 2007.

    [2] Transcript of Proceedings (Supreme Court of the Northern Territory, Martin CJ, 11 August 2005) NTSCC 20418849 <> at 10 February 2007.

    [3] R v GJ (2005) 16 NTLR 230.

    [4] See Megan Davis and Hannah McGlade, ‘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 Chris Cuneen and Melanie Schwartz, ‘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.

    [5] 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.

    [6] Pascoe v Hales, above n 1.

    [7] Paul Toohey, 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 …’.

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

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

    [10] Hales v Jamilmira [2003] NTCA 9; (2003) 13 NTLR 14.

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

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

    [13] R v GJ, above n 2.

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

    [15] 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).

    [16] R v GJ, above n 3.

    [17] See HREOC, Submission to the Northern Territory Law Reform Committee Inquiry into Aboriginal Customary Law in the Northern Territory (14 May 2003) <> at 10 February 2007.

    [18] Ibid.

    [19] 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 <> at 10 February 2007. The Court refused HREOC’s applications for leave to intervene or appear as amicus curiae.

    [20] See Davis and 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] NTCA 10; (2006) 18 NTLR 222.

    [21] 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 <> at 10 February 2007.

    [22] My thanks to Ruth Brebner for bringing this to my attention.

    [23] R v GJ, above n 2.

    [24] See the citations at Davis and 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.

    [25] Alice Bolger, 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 and McGlade, above n 4, 403–5 quote other commentators supporting this view.

    [26] Sentencing Amendment (Aboriginal Customary Law) Act 2004 (NT).

    [27] 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.

    [28] Australian Broadcasting Corporation, ‘Crown Prosecutor speaks out about abuse in Central Australia’, Lateline, 15 May 2006 <> at 10 February 2007.

    [29] For the text of the Communiqué see <> at 10 February 2007.

    [30] It came into force on 12 December 2006.

    [31] See <> at 10 February 2007.

    [32] See <> .

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

    [34] See s 4 of the HREOC submission to the NTLRC inquiry: above n 17.

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

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