Indigenous Law Bulletin
by Ron Levy
In February 1998 Magistrate Anthony Gillies dismissed all assault and property charges against Northern Land Council Chairperson, Galarrwuy Yunupingu. A packed court applauded the landmark decision in which, perhaps for the first time in Australia, native title provided a defence to criminal charges.
Northern Territory Chief Minister and Attorney-General, Shane Stone, however attacked the decision claiming that Aboriginal law is 'barbaric and unacceptable', and that the Magistrate's reasoning may authorise 'tribal killings, the taking of child brides and sexual intercourse with minors'. Australia's former Chief Justice, Sir Harry Gibbs, reportedly suggested the decision might have been influenced by the Territory's 'unjust' sentencing laws, under which Mr Yunupingu faced a mandatory sentence of fourteen days.
The Chief Minister's comments fundamentally misrepresent the legal and factual basis of the Magistrate's decision. The decision is soundly based in established law, including the Mabo [No 2] and Wik decisions. It is important to emphasise that, contrary to various media reports, this was not a physically violent incident. The Magistrate rejected the victim's evidence to that effect, being generally 'satisfied beyond reasonable doubt' that Mr Yunupingu's version of events was correct. (Thus Mr Yunupingu easily satisfied the requirement in criminal cases that he raise a 'reasonable doubt' as to the prosecution case.)
This article explains the decision, and examines the relationship between native title and the criminal law in light of this and other recent cases.
Galarrwuy Yunupingu was charged with assault, criminal damage to film, criminal damage to a camera, and theft of a camera. In summary the Magistrate found as follows. On 4 April 1997 a photographer from Darwin, Michael McRostie, entered Aboriginal land (ie the beach area) adjoining the Gove Yacht Club (located outside the town of Nhulunbuy) to take commercial photographs. He did not have a statutory permit or permission under Yolngu law to be on the land and take photographs (ie the traditional laws of north-east Arnhem Land) when he came onto the land.
Mr Yunupingu and his extended family, including two young children, arrived at the yacht club around 11.30am, before it opened. Mr Yunupingu is the senior elder of the Gumatj clan, and the incident occurred on Gumatj country. Under Yolngu law, Mr Yunupingu is responsible for granting permission regarding entry to, and commercial photography on, Gumatj land. Mr Yunupingu also has primary and senior responsibility for the care and spiritual welfare of the two children who were present.
Under Yolngu law the taking of photographs of land or the people on it is regarded as capturing the spirit of the land or people. Some time after arriving Mr Yunupingu became aware that Mr McRostie was taking photographs of his family including the two children who were naked. Although one of the adult family members had given permission regarding the photographs, Mr Yunupingu was unaware of this fact. In any event, under Yolngu law the request for photographs should have been referred to Mr Yunupingu.
Mr Yunupingu attempted to settle the dispute by seeking compensation of $50 or handing over of the film. The Magistrate was satisfied that these actions were, in traditional terms, part of a settlement process (which might not have included payment of money) and not an attempt at `extortion'.
Mr McRostie did not attempt to settle the dispute notwithstanding that he agreed in evidence that he had been informed by Mr Yunupingu that he had taken or captured the spirit images of the children.
Mr Yunupingu then seized the camera from Mr McRostie. In doing so there was no body contact, however the strap of the camera pulled on the body of Mr McRostie. Mr Yunupingu took the camera a short distance to a pipe where he sat down, placed the camera in his lap, removed the film, exposed the film to light, disposed of it in a garbage bin, and returned the camera to Mr McRostie by placing it on the table where he was sitting or standing.
The Magistrate fully accepted Mr Yunupingu's version of the incident.
Mr Yunupingu successfully relied on two defences under ss24 and 30(2) of the Criminal Code Act (NT), both of which rely on native title and related rights being characterised as a form of property (these defences also exist at common law). These defences are:
Both defences are available to all Australians. All Australians may rely on their lawful property rights to defend a criminal charge, although obviously only Aboriginal people may rely on native title property rights for such a defence.
Both defences were upheld by the Magistrate regarding the assault and damage to the film charges. The damage to the camera charge was dismissed on the facts. (The theft of the camera charge was dismissed, being an alternative to the damage to the camera charge.)
The possibility of native title as a defence to criminal charges was expressly recognised in Mabo v Qld [No 2]  HCA 23; 1991-1992 175 CLR 1. At p 94 Deane and Gaudron JJ state:
The personal rights under the [native] title were not illusory: they could, for example, be asserted by way of defence in criminal and civil proceedings (e.g. alleged larceny of produce or trespass after a purported termination of the title by the Crown by mere notice as distinct from inconsistent grant or other dealing).
In Wik at 193-4 Gummow J comments as to `claim of right' issues in the context of the meaning of the term `unlawfully' in relation to whether Aborigines were, at law, trespassers (under a statutory provision) after the grant of Queensland pastoral leases during the nineteenth century. His Honour concludes that Aborigines would not have been trespassers because:
This does not mean that traditional laws may override either the criminal law or any other Australian law. Rather some traditional laws have been incor porated into Australian civil law as enforceable native title rights. An action which is lawful under Australian civil law is a defence to a criminal charge because it removes the element of unlawfulness (ie there is no actus reus), not because it overrides the criminal law.
Traditional rights and interests may be recognised and enforced under Australian law either by force of statute or at common law. In Wik Kirby J states (pp 213 to 214):
To the extent that native tide is recognised and enforced in Australia by Australian law, this occurs because, although not of the common law, native tide is recognised by the common law as not inconsistent with its precepts ... But no dual system of law, as such, is created by Mabo (No 2). The source of the enforceability of native title in this or any other Australian court is, and is only, as an applicable law or statute provides.
Therefore it is false to assert, as has the Chief Minister, that there are now two systems of law operating in the Northern Territory. The correct position is that there is one system of law comprised of:
Sections 24 and 26(1)(a) of the Criminal Code Act (NT) state that it is a defence to a criminal charge if a defendant's actions are `authorised [by] ... a right granted or recognised by law'. This Act dates from 1983, and is a pre-Mabo statute. Nevertheless it must be (re-)interpreted in light of that decision (because native title is a pre-existing right (Kirby J Wik p 219)). The phrase 'recognised by law' is a reference to the law of the Northern Territory, which must include Yolngu law which has been recognised (either by the common law or statute) as being part of NT law.
In the Yunupingu case it was submitted that Yolngu traditional rights had been recognised as native title by both the common law and an applicable statute, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA). The Magistrate did not find it necessary to determine whether Yolngu rights had been recognised by the common law. The incident occurred on Aboriginal land, and it was sufficient to rely on the provisions of the ALRA as impliedly recognising and enforcing Yolngu rights regarding that land.
Under the ALRA, Arnhem Land (including the Gove Yacht Club area) has been granted on trust `for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned' (s4(l)). The content of Aboriginal tradition, however, is not specified in the statute, and may only be ascertained by reference to the laws and customs which constitute Aboriginal tradition itself. In other words, the ALRA is an `applicable law or statute' which recognises and enforces traditional rights as native title in the sense described by Kirby J above.
The Magistrate construed the beneficial purpose of the ALRA as to enable Aboriginal people to `pursue, if they wish, traditional lives which means, amongst other things, an observance of and the administration of the Aboriginal law applicable to the area where they live.' This includes an implicit right to enforce traditional laws on Aboriginal land.
It is important to emphasise that only traditional laws which are consistent with the precepts of the common law are enforceable as native title. Traditional laws which are, for example, `repugnant to natural justice, equity and good conscience' (such as unjustified violence), will not be recognised (Brennan J Mabo [No 2] p 61).
The common law has always recognised that in certain circumstances an individual may be entitled to interfere in the rights of another person. This recognition has primarily developed to provide a defence to tortious actions under the civil law. The defences are also applicable to the criminal law (as they remove the element of unlawful behaviour). For example, a person is entitled to use reasonable force to eject a trespasser or remove a trespassing object (such as an encroaching fence or an overhanging branch), and may distrain a trespassing animal or chattel (the doctrine of 'distress damage feasant'). Similarly, in this matter Mr Yunupingu exercised restraint, and interfered with Mr McRostie's rights only to the extent necessary to protect Gumatj traditional rights.
The above analysis shows that the NT Chief Minister has seriously misrepresented both the Mabo [No. 2 ] and Wik decisions in claiming that the Magistrate's reasoning may authorise 'tribal killings, the taking of child brides and sexual intercourse with minors'. Such traditional laws would plainly be inconsistent with the precepts of the common law. Further, the apparent imputation that Aboriginal people practise such customs is offensive.
An honest claim of right operates as a defence to property offences at common law. The prosecution need not positively exclude such a belief unless raised by the accused, in which case the prosecution must exclude the contended belief beyond reasonable doubt. For example an accused, who acts in an honest but mistaken belief that he or she owns a particular camera (and thus is entitled to use it), can rely on that honest belief as a defence to a charge of theft of that camera.
The belief in a legal entitlement to act must relate to the civil law, not the criminal law. Ignorance of the criminal law is not an excuse to a criminal charge. In the above example the accused is aware that theft is unlawful, but honestly believes that he or she owns the camera and is entitled (under the civil law) to take it. The belief, if honestly held, would exculpate the accused.
The Magistrate held that Mr Yunupingu acted in an honest belief that he was entitled, under Yolngu law as recognised by the civil law of the Northern Territory, to enforce traditional laws on Aboriginal land. In this case Mr Yunupingu's belief was not mistaken. When damaging the film he acted in accordance with a native title right which was enforceable under the ALRA. The Magistrate further held that under s30(1) of the Criminal Code Act the defence applies both to property offences, and to non-property offences which are committed with respect to property. The technical assault in this case was a consequence of the seizing of the camera, and so committed with respect to property. Accordingly s30(1) provided a defence both to the criminal damage and assault charges.
Ron Levy is a Lawyer at the Northern Land Council.
 Police v Yunupingu, Unreported, Magistrates' Court, Darwin, 20 February 1998, No. 9709243.
 The successful defence, at Magistrates' Court level (October 1996), in Eaton v Yanner preceded the Yunupingu case. However it has been overturned on appeal by the Supreme Court of Queensland (Qld Supreme Court 27 February 1998 unreported). The case has been further appealed to the High Court.
 Sydney Morning Herald 23 February 1998.
 Land Rights News May 1998, quoting correspondence from Shane Stone to a concerned citizen regarding the Yunupingu case.
 The Australian 24 February 1998. The former Chief Justice also advised that he had not yet read the decision, and that accordingly the decision could be 'quite modest in its scope'.
 Mabo v Qld [No. 2)1992  HCA 23; 175 CLR 1.
 Wik v Queensland 1996 187 CLR 1.
 For example, the front page headline in the Northern Territory News of 8 April 1997 read: 'I was punched by Yunupingu' alleged a Darwin photographer. In fact, at the hearing the photographer made no such allegation, claiming only that Mr Yunupingu brushed his shoulder when seizing the camera strap of his camera. The Magistrate rejected this claim by the photographer. An article in the Age of 28 February 1998 reported the photographer's claim to have been 'petrified'. The article did not report that the Magistrate did not make such a finding.
 Regarding the damage to the shutter, the Magistrate expressed concern that this damage may have occurred after the incident. In any event the Magistrate accepted that, if caused by Mr Yunupingu, the shutter damage was inadvertent and without intention or foresight.
 Sydney Morning Herald 23 February 1998.
 Section 3(1) defines Aboriginal tradition as 'the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships'.
 Similarly, in Yarmirr v Northern Territory (Federal Court, 6 July 1998, unreported) Olney J held that the Native Title Act 1993 (Cth) disclosed an intention to recognise native title offshore (para 32), notwithstanding that the common law does not apply offshore (para 34).
 Police v Yunupingu, unreported, Magistrates' Court, Darwin 20 February 1998, No 9709243, p 16.
 This defence is also known as a 'mistake of law'. It has been suggested that the defence may be available at common law regarding some non-property offences which include dishonesty as an element of the charge. Peter Gillies, Criminal Law, Third Edition, 1993, p 775.