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Anderson, Alison --- "Women's Rights and Culture: an Indigenous Woman's Perspective on the Removal of Traditional Marriage as a Defence under Northern Territory Law" [2004] IndigLawB 31; (2004) 6(1) Indigenous Law Bulletin 30


Women’s Rights and Culture:



an Indigenous Woman’s Perspective on the Removal of Traditional Marriage as a Defence under Northern Territory Law

by Alison Anderson

In November 2003 the Northern Territory (‘NT’) Parliament passed the Law Reform Bill (Gender, Sexuality and Defacto Relationships). This new Act included the removal of traditional marriage as a defence when an adult has sex with a child under the age of 16. In the media debate that followed, I spoke out in support of this legislation affording Indigenous girls the same rights as other children. Since then, I have continued publicly oppose using customary law as an excuse to condone sex with minors. I am fully in support of customary law marriages, but not of sexual activity with under-age brides. In accordance with the United Nations (‘UN’) Convention on the Rights of the Child 1990 (‘CROC’), I believe that Indigenous children should be entitled to the same human rights protections as non-Indigenous children.

From the outset I would like to emphasise that as a Luritja woman, I am proud of my law and culture which I continue to practise. I have also spoken out in support of the right of my people to continue practising traditional culture.

However, the stance that I have taken in relation to the NT amendments has been strongly criticised by some Indigenous representatives. These critics oppose this legislation on the grounds that it may set a precedent for undermining customary law. While I understand their concerns, I do not believe this to be the case.

What is meant by Aboriginal Customary Law and how it operates in the context of other legal, social and political developments are important issues here. The Aboriginal and Torres Strait Islander Commission (‘ATSIC’) NT Submission to the Inquiry into Aboriginal Customary Law defines Aboriginal Customary Law:

Customary Law incorporates rules, values and customs. This is a social governance mechanism, very different from European Australian law. Customary Law is an integrated package of Indigenous rights including land and water rights, cultural and information rights and social and economic rights. This law is embedded within traditional Aboriginal culture. Each language group is responsible for managing their own law.[1]

Like any other legal or political system, Aboriginal Customary Law is a product of certain historical, social and cultural processes. Customary law is often diverse in its practise across different communities and groups, and there can be disagreement as to what constitutes proper practices. It is part of a living culture, and like all living cultures, Aboriginal culture has the capacity to adapt and evolve in response to change.

Two major areas of legal and political developments to which Aboriginal Customary Law need to be related are those of Aboriginal self-determination and international human rights law. In the NT, the Indigenous Constitutional Strategy is one of the most significant recent developments in relation to Indigenous self-determination. It combines both the Kalkaringi and Batchelor Statements.[2] The Strategy gives Aboriginal Customary Law a place of special significance, stating ‘Aboriginal law should be recognised as a source of law in the Constitution’, and that ‘a Northern Territory Constitution must recognise Aboriginal law through Aboriginal traditional law holders, and Aboriginal structures of law and governance’.[3]

The Indigenous Constitutional Strategy also provides scope for the recognition of the rights of Indigenous women and girls through its acknowledgment of basic human rights: ‘Every person shall have the right to respect for and protection of his or her dignity’. It further states that discrimination should be prohibited on the on the basis of race, sex, language or religion.[4] So the strategy supports both the protection of customary law interests and the basic human rights of Indigenous women and girls.

There is also acknowledgment of the individual rights of women and girls and of the rights of minorities and Indigenous peoples to practise their law and customs at an international level. International human rights law gives recognition to the following categories of rights relevant to Indigenous peoples: general, individual human rights; special minority rights; special rights of Indigenous peoples and Indigenous individuals; and the rights of peoples to self-determination.

Clashes between individual rights, such as the rights of girls to protection against sexual exploitation and other forms of abuse, and the collective rights of minorities to practise their own law and customs, are issues which other Nation States have had to negotiate.[5] The Human Rights Committee has observed in reference to Article 3 of the International Covenant on Civil and Political Rights that:

Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes... States should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women's right to equality before the law and to equal enjoyment of all Covenant rights...[6]

Where there is a conflict between the individual human rights of the girl and the rights of a culture to traditional practices, international human rights law finds that the rights of the girl prevail. In the NT ATSIC Submission to the Inquiry into Customary Law in the Northern Territory, we recommended that: ‘The application of Customary Law should not contravene universal human rights and other internationally recognised covenants but should work beneficially with other bodies of law including Territory Law.’[7]

I fully support the recognition and lawful practice of traditional marriage. However, I believe that protection of children's rights, including protection from sexual coercion and abuse, should be available equally to Indigenous and non-Indigenous children in the NT. The recent legislation passed in the NT removing traditional marriage as a defence when an adult has sex with a minor is not about extinguishing a customary law practice, but about addressing the rights of the child. It means that you can have your promised, but not before time.

This position is in accordance with protection for the rights of children and young people under CROC. For example, Article 2 protects the child against all forms of discrimination, irrespective of factors such as race or sex; Article 3 states that the best interests of the child shall be a primary consideration in all actions concerning children; and Article 34 provides for protection of the child from all forms of sexual exploitation and sexual abuse, including the inducement or coercion of a child to engage in any unlawful sexual activity. CROC should be the benchmark for every child: there should not be one standard for non-Indigenous children and another for Indigenous children.

Earlier this year, I met with NT Attorney-General Peter Toyne to discuss the need for a package to educate communities about the new customary law legislation, which ATSIC had advocated so that all communities would have an understanding of this new law and its implications. ATSIC welcomed the NT Inquiry into Customary Law as an opportunity to build relationships between the Indigenous peoples and the NT Government so that we can actively apply Indigenous customary law principles within the Australian legal system in accordance with Australia’s international obligations. ATSIC has also continued to work with the NT Government to develop an Indigenous Justice Agreement for addressing law and justice issues affecting Indigenous Territorians.

Discussions surrounding the practice of Aboriginal Customary Law can often focus on its more controversial or difficult aspects at the expense of emphasising the positives. These include the potential for customary law recognition to strengthen Indigenous governance and to alleviate the overrepresentation of Indigenous people in the custodial system through the implementation of restorative justice principles. The way ahead must be founded on proper consultation with traditional custodians and Indigenous Territorians, and through the education and treatment of Indigenous people as equals in any negotiations relating to the application of customary law. This should all be grounded in a true commitment to human rights for Indigenous people.

Alison Anderson is a Luritja woman and is the ATSIC NT Central Zone Commissioner.


[1] ATSIC Northern Territory Police Centre, ATSIC Northern Territory Submission to the Inquiry into Aboriginal Customary Law in the Northern Territory (Northern Territory Law Reform Committee), May 2003, p 16.

[2] The process of the Northern Territory Statehood Convention and the Kalkaringi Convention are discussed in Sarah Pritchard, “Constitutional Developments in the Northern Territory: The Kalkaringi Convention”[1998] IndigLawB 72; , (1998) 4(15) Indigenous Law Bulletin 12.

[3] See note 2, “Aboriginal Law”, 1 & 2.

[4] Ibid, “Human Rights”, 3 & 5.

[5] See Office of the High Commissioner for Human Rights “Harmful traditional practices affecting the health of women and children” Fact Sheet No.23, <http://www.unhchr.ch/html/menu6/2/fs23.hrm> the Beijing Platform for Action adopted by the Fourth World Conference on Women 15 September 1995, para 113(a).

[6] Human Rights Committee, General Comment 28 - Article 3 (equality of rights between men and women) , para 5, in Compilation of General Comments and General Recommendations adopted by human rights treaty bodies, UN Doc: HRI/GEN/1/Rev.5, 26 April 2001.

[7] NT ATSIC Policy Centre, op.cit, p 6, Rec 1.1.3.

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