The chief justice of the Northern Territory says some extreme attacks on Aboriginal women have been attributed to bogus traditional violence in which perpetrators seek to justify their crime as the enforcement of their rights, as he warns domestic violence has likely worsened in the Top End. Chief Justice Michael Grant, speaking to lawyers at a Darwin conference this month, referenced an Indigenous commentator who noted that drunk Indigenous men abuse their partners for “illegitimate reasons” before explaining away the attacks as “some sort of traditional right”. He also said commonwealth legislation introduced in 2006 was intended to protect Aboriginal women by ensuring traditional practices could not be taken into account when sentencing domestic violence offenders. However, he said that, if anything, violence against Aboriginal women in the Territory had increased since those laws were introduced.
“I’m now firmly of the view that personal and specific deterrents don’t operate on Aboriginal offenders as they might do on other offenders,” Chief Justice Grant said in his speech at a Piddington Society event. “I believe that most Aboriginal people – given that these crimes are committed at the height of passion and or when they’re intoxicated – don’t think at all about what the consequences of their actions are. “So as a sentencing purpose, personal deterrence and general deterrence so far as it’s directed to the Aboriginal community are entirely ineffective.” The NT is grappling with an extreme epidemic of violence against Aboriginal women laid bare at a recent inquest for four Aboriginal women killed by their partners, and in recent crime data. The year-long inquest into the deaths of Miss Yunupinu, Ngeygo Ragurrk, Kumarn Rubuntja and Kumanjayi Haywood heard evidence of shocking rates of violence against Aboriginal women in the NT, including that Aboriginal women made up 93% of all domestic violence victims in the Territory over the previous 25 years.
The Chief Justice said alcohol was a significant risk factor in cases in which an Aboriginal woman had been attacked by her partner. Statistics demonstrated 90 per cent of attacks on Aboriginal women were alcohol-related. “In fact, in almost 10 years in this court I’ve only sentenced one Aboriginal offender for violent or sexual offending who was not intoxicated by alcohol at the time the events were committed,” he said. He said it was a fact that, in the Territory, customary law was still being practised. “In my experience at least, it’s undeniable in the Northern Territory that we have many, many people still living on the same land their ancestors have occupied since time immemorial, still living in a traditional or a semi-traditional context and still practising various laws and customs vastly at odds with contemporary gender politics and legal norms,” the Chief Justice said. However, he added that customary law may change over time, and the respected Yolngu leader James Gaykamangu – who died in 2023 – had condemned domestic violence.
“He said that although his people should feel no shame at all concerning past traditional practises, he said domestic violence is no longer appropriate in Aboriginal customary law in any way, shape or form. And he was a senior lawman for his people,” Chief Justice Grant said. Mr Gaykamangu also made the very perceptive observation that both balanda law – that is white man’s law – and Yolngu law had allowed these things to happen in the past and both were capable of change” Chief Justice Grant said customary laws had never sanctioned indiscriminate violence and “that particular discipline was always strictly maintained by the elders”. However, he said that for various reasons to do with breakdown in traditional law, in some communities that rigid enforcement was no longer possible. “As one Indigenous commentator observed, there are now three kinds of violence in Aboriginal communities: alcoholic violence, violence in accordance with traditional law, and bogus traditional violence,” Chief Justice Grant said during his speech.
“What that last category is intended to describe is the sort of assault that’s perpetrated usually, if not exclusively, by drunken men for illegitimate reasons, which is then sought to be justified as the exercise or enforcement of some sort of traditional right.” Author Audrey Bolger used the term “bogus traditional violence” in a landmark report for the Northern Territory Commissioner of Police and the Criminology Research Institute in 1991, writing that Aboriginal women “are now subject to violence from their own men of a kind which would not have been countenanced within traditional society”. Chief Justice Grant said there were features of Aboriginal society that contributed to the prevalence of intimate partner violence. “Many of the cases in the Northern Territory have as their cause something which is described compendiously here as ‘jealousing’,” he said. Chief Justice Grant said this was a concept in Western Australia, particularly the central desert areas of Western Australia.
“Every Aboriginal person knows what you’re talking about when you talk about jealousing, but it’s very difficult to comprehensively define. He said jealousing most commonly manifested as sexual jealousy. Chief Justice Grant said this form of “jealousing” typically occurred where there was “absolutely no basis at all for the jealousy which is demonstrated by the offender or where the offender has made absolutely no attempt to ascertain the truth of the rumour or the innuendo or the other matter which has provoked the jealousy”. “Most significantly – and unfairly, I would have thought – the violence is invariably inflicted on the partner rather than on any other participant in the real or the imagined transgression giving rise to the jealousy.” In cases before the NT Supreme Court, jealousing was very frequently cited as an explanation or an excuse for intimate partner violence, and sometimes even as a form of provocation, he said.
“One very common scenario is where the wife feels obliged to accompany the husband in groups – usually drinking groups – because to not do so, would invite later accusations concerning her whereabouts at the time,” Chief Justice Grant said. “Then some other male person in that drinking group looks at or interacts with the wife in a way that causes the husband to start jealousing … in that scenario, the husband may, and we see frequent examples where the husband does, react by assaulting the wife or worse.” Chief Justice Grant said arson cases in Aboriginal communities frequently involved “jealousing” that did not have a sexual jealousy component. “A community elder, for example, might decide to burn a motor vehicle, which is causing arguments amongst relatives of that elder’s family about the use of that motor vehicle and who’s entitled to the use of the motor vehicle,” Chief Justice Grant said. “And stopping that form of jealousing about the item of personal property is considered by the elder to be preferable to maintaining the use and trying to work out the equitable sharing of it.”
Source: Compiled by APN from media reports