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McGlade, Hannah --- "Our Own Backyards" [2003] IndigLawB 13; (2003) 5(23) Indigenous Law Bulletin 6

Our Own Backyards

by Hannah McGlade

In 2001 the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) established the National Indigenous Working Group on Family Violence, calling for a coordinated approach to the delivery of anti-violence programs by federal, state and territory governments. ATSIC Commissioner Brian Butler commented:

What we are trying to deal with here is systemic violence which has been bred into Indigenous communities by a long history of colonialism, racism, assimilation and dispossession.[1]

Commissioner Butler criticised the claim that there had been ‘a veil of secrecy cast over issues of family violence within Indigenous communities’.[2] Rather ‘Indigenous people have been talking about this problem for many years but until recently no one was listening’.[3]

Certainly many reforms to address family violence have gone unheeded by government. For example, in Western Australia the Gender Bias Inquiry in 1995 heard from Aboriginal women who urged the establishment of Aboriginal community based panels of key women to assist in the apprehension of violent offenders, and in the resolution of offences through the courts.[4] That important recommendation was ignored by the State Government.

However, another concern consistently identified by Aboriginal women throughout Australia for many years is the claim that violence and abuse is being distorted, and justified as cultural or customary. The 1991 Bolger study concerning the Northern Territory, Aboriginal women and violence,[5] heard from women who denounced ‘bullshit traditional violence’ as a misuse of culture. Bolger encountered a case where a man had originally pleaded guilty to several counts of rape of two young girls, but this plea was changed to not guilty on the basis that what he had done was condoned by culture. Bolger noted clear disagreement in the community but even those who disapproved, mainly women, appeared unable to intervene. Elders in the community who sanctioned the relationship still agreed that brutal treatment of a wife was not customary, yet it appeared that no traditional sanctions were invoked. The rape case itself did not proceed as the young witnesses were reluctant to give evidence in court.

The role played by Aboriginal Legal Services (‘ALS’) in cases involving abuse of women was also raised:

Legal Aid are good but there are things they shouldn’t support. There’s one man walking round after murdering his wife – now he’s bashing another woman. Legal Aid should take a hard line – why defend men who murdered before? They say it’s ‘human rights’ – but what about HER rights? [6]

The issue of Aboriginal women’s access to justice was canvassed by the Australian Law Reform Commission in its report, Equality before the law.[7] They heard evidence that

White lawyers, particularly male lawyers, have accepted Aboriginal men’s explanation that traditional law sanctions their violent assaults against women in a whole variety of circumstances.[8]

A recent study reported on by the New South Wales Aboriginal Justice Advisory Council revealed that Aboriginal women (who were ten times more likely to be a victim of sexual assault), were ‘questioned by defence counsel about sexual assault being cultural or an expected part of Aboriginal communities’.[9] Aboriginal women victims ‘seemed to experience greater distress during the court process’.[10] They were especially asked questions that relied upon myths of Aboriginal women as being ‘unsophisticated, vengeful and morally corrupt’.[11] Questions about alcohol consumption, victim’s compensation and promiscuity were also more commonly raised.

ATSIC funds the Aboriginal Legal Services many millions of dollars and those ALS’s Australia wide spend considerable resources representing Aboriginal men charged with violence and sexual abuse of women and children. Does this legal representation really assist Aboriginal people address the systemic violence and abuse that has become entrenched within our communities? Are we really ready to tackle the problem of family violence in our own backyards and within our own organisations? Will the ALS’s engage in the dialogue of how we can stop the violence? Why should they ever be allowed to argue that rape and violence of women and girls is cultural and justified?

Hannah McGlade is a Nyungar yorga, mother, lawyer and writer.


[1] ATSIC, News (Northern Territory), December 2001.

[2] Ibid.

[3] Ibid.

[4] Report of the Western Australian Chief Justice’s Taskforce on Gender Bias (1994).

[5] Audrey Bolger, ‘Aboriginal women and violence’ (Working Paper, Australian National University North Australian Research Unit, 1991).

[6] Ibid 85.

[7] Australian Law Reform Commission, Equality before the law: Women’s equality, Report No 69 (1994).

[8] Ibid 122.

[9] Rowena Lawrie, ‘Holistic community justice: A proposed response to Aboriginal family violence’ (Discussion Paper, Aboriginal Justice Advisory Council) http://www.lawlink.nsw.gov.au/ajac.

[10] Ibid.

[11] Ibid.


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