• Larissa Behrendt

01 June 2006Dealing with these issues will take sustained commitment and resources, writes Larissa Behrendt




MANY of the inherent problems in government responses to Indigenous policy making were revealed by the reaction to the recent highlighting of the chronic levels of violence and sexual abuse of women in children in Aboriginal communities in the Northern Territory. Despite the fact that many reports have been written documenting this issue in Aboriginal communities across the country for decades, many written by Aboriginal women, comments by public prosecutor Nanette Rogers sparked a round of self-righteous outrage by politicians. The federal government placed the blame of the territory government - a law and order issue, they said confidently. The territory government placed the blame on the lack of funding on housing and other essential services by the federal government. This blame shifting between the two levels of government is a characteristic in the approach to many Indigenous issues.



Back in the days when the Aboriginal and Torres Strait Islander Commission (ATSIC) was still in existence, both levels of government would blame it for the failure to shift the socioeconomic position and accompanying social problems in Aboriginal communities (despite the fact that ATSIC did not have fiscal responsibility for health and education and was only a supplementary provider for domestic violence). With the scapegoat being scrapped, governments can only point the finger at each other - and Aboriginal people. Many politicians and some media stated or implied that this violence was a result of Aboriginal culture.



Aboriginal people across the country have been quick to point out that physical and sexual abuse of Aboriginal women and children is not a part of Aboriginal culture and such behaviour does not represent the values of Indigenous culture. In fact, it is when the cultural values of respect for family, kinship, community, Elders, the notion of reciprocity and responsibility to country have been eroded that the fabric of the community starts to unravel and social problems such as substance abuse and violence become rife.



This media frenzy coincided with the High Court hearing a special leave application in relation to the case of the The Queen v GJ, in which a forty-year-old man had assaulted and sodomised a fourteen-year-old girl who had been promised to him as a wife. In sentencing the man, Chief Justice Brian Martin had balanced a range of factors including the severity of the crime and the fact that the perpetrator had thought that he had a right to act as he did under customary law.



Aboriginal women have constantly asked the judiciary not to accept evidence given by defendants that violence and sexual assault are acceptable within Aboriginal culture and have also asked those undertaking the judicial process not to weigh customary practices that violate human rights above the rights of the victim. The appeal court increased the sentence and, as the chief justice himself pointed out, this was evidence that the appeal system worked to correct the original error in this case.



Aboriginal women certainly called for the judiciary to reject so-called customary defences that seek to imply that mistreatment of women and children is a cultural value or to value the rights of victims more highly than cultural practices that breach human rights. But nowhere did they call for the blanket exclusion of customary law from the judicial decision-making process when determining a sentence. Those calls came from politicians who thought they had found another convenient scapegoat.



The proposal to legislate to exclude customary law from the factors that can be considered in sentencing is dangerous. Like any attempt to restrict a judicial officer’s capacity to weigh up all the relevant factors when sentencing, the inability to consider customary law at all will impede the capacity to ensure that a just sentence is given in each particular circumstance before the court. It is also a serious infringement on the judicial process by the legislature and as such has serious implications for the principle of the separation of powers.



But pointing the finger at the judiciary is an easy way for politicians to grand stand and score quick political sound-bites. Judges who hear criminal cases where violence has been committed against Aboriginal women and children are dealing with the symptoms of a far more complex and difficult social problem. And it is politicians, not the judiciary, who have the most power to profoundly influence the root causes of cyclical violence and the breakdown of the social fabric in Aboriginal communities.



The situation in many Aboriginal communities where there is chronic poverty and dysfunction are the result of decades, even centuries, of failed government policy and neglect. This neglect has occurred in three ways: the failure to provide basic essential services to Aboriginal communities across the country, the failure to provide adequate infrastructure in those same communities, and the failure to invest in human capital. It is this neglect that has created profound cyclical poverty, despondency and hopelessness, and an unravelling of the social fabric that create an environment in which substance abuse and violence become normalised.



While the federal government claims that is has a commitment to end the cyclical violence and abuse, it has also said that it will not put more money into the problem. It has been estimated that basic Indigenous health needs are under-funded by $450 million each year. Of the $100 million spent on its new policy of shared responsibility agreements, three-quarters was spent on administration. It does not spend adequately and when it does, it spends ineffectively. It abrogates its own responsibility for these issues while it blames state and territory governments and the judiciary for the problem. With this as their position, there is little hope that the root causes of violence in Aboriginal communities will be addressed and judges will continue to be in the position of having to deal with the consequences of systemic and sustained government neglect.



If governments were serious about fixing the problem, they would stop passing the buck and deal with their own responsibilities in what must be a multi-faceted approach to a long-term solution. This solution has been outlined in much of the research on violence and dysfunction in Aboriginal communities and includes:



• programs that target intervention on issues of crisis such as substance abuse and sexual violence;



• adequate funding of essential services (including police, housing, health, education and employment), infrastructure and human capital in Aboriginal communities;



• cooperation rather than cost-shifting between levels of government who share responsibility for meeting Indigenous needs;



• the need for Aboriginal people to constantly emphasise that violence and sexual abuse are not cultural values; and



• the need for all of the above need to be done in consultation with Aboriginal communities.



What has been proven to work in Indigenous communities in other countries, and there is evidence to support the assumption in Australia, is that policies and programs work best when they are introduced in collaboration with Indigenous communities. It makes sense that when people feel ownership and responsibility for policies and programs, they are likely to be more effective.



The real challenge for governments in dealing with issues of violence, abuse, dysfunction and cyclical poverty in Aboriginal communities is to recognise that there are no quick solutions, no quick fix. There will be no Minister for Aboriginal Affairs who can ride in on a white horse and save the Aborigines. Dealing with this issue will take sustained interest, sustained commitment and sustained resources. •



Larissa Behrendt is professor of law and and director of research at the Jumbunna Indigenous House of Learning at the University of Technology, Sydney



Photo: Andrew Jeffrey