See DavisMeganMcGladeHannah, ‘International Human Rights Law and the Recognition of Aboriginal Customary Law’ in Law Reform Commission of Western Australia (LRCWA), Aboriginal Customary Laws: Background Papers, Project No 94 (January 2006) for an excellent discussion of this and other related issues. See also CuneenChrisSchwartzMelanie, ‘Customary Law, Human Rights and International Law: Some Conceptual Issues’ in LRCWA, Aboriginal Customary Laws: Background Papers, ibid; and LRCWA, Aboriginal Customary Laws: Discussion Paper, Project No 94 (December 2005) Pt 7 for a constructive contribution to the debate.
5.
Specifically, Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (CEDAW), and Convention on the Rights of the Child, opened for signature 20 November 1989, ILM 28 1448 (entered into force 2 September 1990) (CROC). The International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), is another relevant instrument. Australia has ratified both Conventions and the ICCPR but they have not been enacted into Australian domestic law.
6.
Pascoe v Hales, above n 1.
7.
TooheyPaul, The Australian (Sydney), 9 October 2002. The words do not appear in the online report. This records: ‘When I heard the facts I was somewhat surprised that the appellant had been charged in all the circumstances…’.
8.
This defence has been rescinded by s 5 of the Law Reform (Gender, Sexuality and De Facto Relationships) Act2003 (NT).
9.
DouglasHeather, ‘“She Knew What Was Expected of Her”: The White Legal System's Encounter with Traditional Marriage’ (2005) 13(2) Feminist Legal Studies181–203.
10.
Hales v Jamilmira (2003) 13NTLR14.
11.
Transcript of proceedings, Jamilmira v Hales [2004] HCA Trans 18 (13 February 2004). For a discussion from defence counsel's perspective see BryantGerard, ‘Promised Marriages: The Jackie Pascoe Case’ (2003) 5(23) Indigenous Law Bulletin20.
12.
Not the same Chief Justice as the one in Pascoe/Jamilmira but coincidentally both are called Brian Martin.
13.
R v GJ, above n 2.
14.
The sentences have support from a member of the defence team: See O'ConnellStewart, ‘Time for Change’ (2006) 3 May/June Balance26–35.
15.
This point was stressed both in the Northern Territory Court of Criminal Appeal and the High Court where an application for special leave to appeal was refused: GJ v The Queen [2006] HCA Trans 252 (19 May 2006).
HREOC's brief but excellent submission to the Court of Criminal Appeal in R v GJ supports this view. It stresses that any consideration given to Aboriginal customary law in the sentencing process should be carried out consistently with human rights principles that are recognised in the international treaties to which Australia is a party. See <http://www.hreoc.gov.au/legal/intervention/queen_gj.html> at 10 February 2007. The Court refused HREOC's applications for leave to intervene or appear as amicus curiae.
20.
See DavisMcGlade, above n 4, 391–4 for the approach of the Australian courts towards international conventions. For a recent Northern Territory case where CROC and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) 1985 were referred to see MCT v McKinney (2006) 18NTLR222.
21.
For more on the Conventions, Australia's international obligations and promised brides see LRCWA, Aboriginal Customary Laws: Discussion Paper, above n 4, 332–4 and the Northern Territory Law Reform Committee (NTLRC), Report on Aboriginal Customary Law (August 2003) 23–4 <http://www.nt.gov.au/justice/docs/lawmake/ntlrc_final_report.pdf> at 10 February 2007.
22.
My thanks to Ruth Brebner for bringing this to my attention.
23.
R v GJ, above n 2.
24.
See the citations at DavisMcGlade, above n 4, 389, 403–4, 425. The authors suggest that the adversarial nature of the legal system gives white counsel representing Aboriginal men the chance to employ distorted custom as a defence.
25.
BolgerAlice, Aboriginal Women and Violence, Report for the Criminology Research Council and the Northern Territory Commissioner of Police, Northern Australia Research Unit, Darwin (1991) 4, 50. See also NTLRC, Report on Aboriginal Customary Law, Background Paper 1, 16. DavisMcGlade, above n 4, 403–5 quote other commentators supporting this view.
Section 104A of the principal Act. Male elders gave evidence under the Act in R v GJ. In the High Court Kirby J tellingly noted that no women were called upon to give evidence.
LRCWA, Aboriginal Customary Laws — The Interaction of Western Australian Law with Aboriginal Law and Culture, Final Report Project No 94 (2006) Appendix A.
34.
See s 4 of the HREOC submission to the NTLRC inquiry: Above n 17.
35.
KennethDorosthySilasHenlyn, ‘Vanuatu: Traditional Diversity and Modern Uniformity’ in Institute of Pacific Studies, Land Rights for Pacific Women (1986) 68–9.
