Different justice?

Chris Graham argues that Aboriginal people’s cultural difference must be acknowledged in the Australian criminal justice system (The Drum, 25 July). Graham focuses on the differences between Aboriginal people and non-Indigenous people and describes the obligations Aboriginal people have towards their family. For example, that Aboriginal AFL player, Liam Jurrah’s obligations towards his family override his AFL career: “...Liam Jurrah is not excused from his cultural obligations, payback being one of them.” Graham gives the examples of ‘demand sharing’ (or humbugging as it is sometimes called) and the treatment of the elderly as evidence of the different values between Indigenous and non-Indigenous people.

 In doing this, Graham seems to imply that non-Indigenous people don’t have obligations towards their family or care about their elderly. But although the obligations of Indigenous and non-Indigenous people towards their family may be different, most non-Indigenous people do feel some obligation to lend a hand when family members ask for help. A recent article in the Sydney Morning Herald, “Generation IOU”, reported a study that found Australians spend $22 billion a year helping their adult children. They also give another $1 billion a year to elderly parents.

Yet according to Graham, “...white Australians “have a tendency to stick our old people in a nursing home....” Aboriginal people on the other hand: “prefer to have their elders not only live out their years with their family, but actually lead their clans until their passing.”

Graham argues that Aboriginal people got the treatment of their elderly right a long time ago. In saying this, he conveniently glosses over accounts by anthropologists that some Aboriginal communities would traditionally leave old and frail people to die by themselves. As anthropologist Janice Reid points out: “The treatment and status of the elderly is probably no more uniform in Aboriginal society than it is in Western Societies. Differences between the fortunes of individual elders largely reflect their personalities and their differential location in the economic, political and social structures.”

While making much of the difference between Indigenous and non-Indigenous people, Graham stereotypes ‘white fellas’ and ‘black fellas’ as if all Indigenous people are a homogenous entity with one ‘shared’ culture, and says: “To get your head around obligation and the Warlpiri perspective, you need to understand how Warlpiri (and Aboriginal people from Redfern to Ramingining) think.”

But not all Warlpiri people think the same. Graham’s argument is that lack of understanding and acknowledgment of Aboriginal law is the reason behind the riots and fighting in Yuendumu. However, Bess Price, a Warlpiri woman from Yuendumu, criticises the use of Aboriginal culture as a mitigating factor in the criminal justice system, arguing that it rewards the perpetrators of crime and punishes the victims.

There have been many instances where Aboriginal culture has been used as an excuse for offenders to receive lesser sentences, such as the 14-year-old Aboriginal girl who had been promised in marriage to an older man when she was four. When she decided she would rather have a boyfriend her own age than marry a man more than 40 years her senior, the prospective groom, with the cooperation of the girl’s grandmother, ‘beat the girl with a boomerang, then locked her in a room for four days during which time he repeatedly forced her to have anal sex.’ (The Australian, 8 May 2005). Brian Martin, the chief justice of the NT Supreme Court, imposed a remarkably lenient penalty – a suspended sentence of two years, with only one month to be served – when the maximum penalty for the crime is 16 years. When the NT government appealed the sentence, Martin acknowledged that he had placed too much emphasis on customary law and the offender’s ignorance of the Northern Territory’s law.

This example shows the danger in making too much of Aboriginal difference. Although every effort should be made to ensure Aboriginal people have interpreters in court and understand the processes, the different treatment should end there.

Left-leaning commentators like Graham argue that Aboriginal people’s differences need to be acknowledged and Indigenous people should be treated differently by the law. Yet, they also want International Human Rights to be applied to Aboriginal people. In other words, they want to pick and choose which parts of ‘white fella’ law should apply to Aboriginal people and which parts shouldn’t.

Examples of these contradictory arguments abound in the recent edition of Arena. In a discussion on the Northern Territory Intervention, Jon Altman and Melinda Hinkson give an example of an Aboriginal couple driving on an unsealed road in Central Australia who were detained by police. The male driver of the vehicle was found to have a suspended licence and arrested. His female companion was left on the side of the road to walk several kilometres home in the approaching darkness. Yes, the police were remiss in not driving the woman home, but Altman and Hinkson seem to suggest that the police were also at fault for arresting the man in the first place. However, if Altman and Hinkson themselves were found driving without a licence, wouldn’t they expect to be arrested too?

Treating Aboriginal people differently causes more problems than it solves. It also sets a dangerous precedence that other ethnic groups could use to argue for different treatment by the courts. If we allow Aboriginal customary law should we also allow Sharia law, as some Muslim groups are asking for? To ensure justice is carried out, the rule of law should apply equally to all Australians, regardless of their ethnic background.