It is undoubtedly true that the kind of family violence Professor Dodson was referring to, "domestic violence between partners, sexual violence against men, women and children … alcohol and drug induced violence, and the sheer madness of communities supporting clubs and wet canteens where alcohol related violence and dysfunction dominate the rhythms of life for everyone”, “violence that traumatises entire families and communities that is sometimes referred to as ‘dysfunctional community syndrome’, where people are traumatised even by association and the knowledge of, and the witnessing of acts of violence” could never have been part of the culture or customary law of any people, and could never be excused by appeals to culture or custom. However, to the extent that such statements imply that violence within the family was never part of traditional Aboriginal culture, or that there is no “cultural” component to the present epidemic of violence, it is contradicted by ethnographic studies, and the strong beliefs of some contemporary Aboriginal people. Of course the traditional laws of different Aboriginal societies are and were different, but there are common themes. In The Politics of Suffering, Peter Sutton quotes a number of references to violence as an aspect of traditional culture in various parts of Australia at the time of first contact. He refers to “frontier accounts” of formal pitched battles, skirmishes and “sneak attacks by night resulting in a substantial number of casualties” in north– east Arnhem Land in the first part of the 20th century, and to Stanner’s descriptions of formalised large– scale fights in the Daly River area in the 1930s, as well as “raids, ambushes and cutting– out expeditions for which the young bloods had a liking” – the latter referring to raids. Sutton cites early contact reports of “widespread and frequent” domestic violence among traditional Aboriginal people in other parts of Australia and quotes Bronislaw Malinowski’s 1913 study in which he described a ‘standard’ husband– wife relationship in these terms: “The husband ‘had a nearly unlimited authority, and in some cases, when he had special reasons (and undoubtedly deemed himself to be within his rights), he might use his authority for a very brutal and severe chastisement.”
“Notably, the words ‘Aboriginal’ and ‘Indigenous’ do not appear in section 91 or section 16AA: on its face, the new provision applies to all Northern Territory offenders. But the unavoidable implication, given its statutory context in the legislative package of the Intervention, is that the reference to culture and custom is aimed primarily at yapa [Aboriginal people]: kardiya [non– Aborignal people] it would seem, don’t have “culture”, a standpoint which has been characterised as the ‘majoritarian privilege of never noticing [oneself]’. So much for what many had imagined had by now become the received wisdom of multiculturalism, as enshrined in section 16A of the Crimes Act 1914 (Cth) passed with bipartisan support only a few years previously, providing that a sentencing court must take into account the “cultural background” of an offender.” In fact, there are very few “cultural practices” which cannot be properly re– characterised in more general, non– culturally specific human terms. (For example an offender who breached the terms of his suspended sentence by failing to report in circumstances where he had a cultural obligation to attend a ceremony, could also, and just as validly, be said to have been attending to important family obligations.) Moreover, although customary law and cultural practices cannot be taken into account for the purposes set out in s 16AA, they can be taken into account for other sentencing purposes such as assessing the offender’s prospects of rehabilitation. The major impact of s 91 and s 16AA would therefore seem to be a psychological one – the sending of a clear message that the Commonwealth legislature has no respect for Aboriginal cultural practices or customary law and categorises them as having no worth – worse, as having negative worth. In a jurisdiction where large sections of the community owe their primary loyalty and allegiance to Aboriginal culture and law, this can only be described as unhelpful. As already noted, cultural practices and customary law can evolve – and are evolving. If they are to evolve in directions which are in harmony with the mainstream legal system’s values, this will need to occur in partnership between respected and knowledgeable members of the various Aboriginal communities and non–Aboriginal leaders, law– makers and policy– makers and there can be no partnership, and no where there is no respect.