Australian politics

Feb 6, 2014

Djambuy’s case and the recognition of Aboriginal customary law

"This is the first time in a long time that Balanda (European) and Yolngu laws have worked together like this. Yolngu are not asking for a separate system. This is about creating a dialogue between the two systems."

Bob Gosford — Likes birds and people, not necessarily in that order.

Bob Gosford

Likes birds and people, not necessarily in that order.

Aboriginal customary law has been the subject of extraordinary efforts by Northern Territory and Federal politicians to exclude it from consideration in the (European) administration of criminal justice.

Despite these efforts Aboriginal people in the Northern Territory continue to practise and apply their law. Aboriginal law is, for many people in the NT, the primary governing force in their lives.

Now, against the tide of intense legislative pressure, the Supreme Court of the Northern Territory has recognised the utility of Aboriginal law.

This article was originally published in the January 2014 edition of Land Rights News (Northern Edition) by the Northern Land Council, a Commonwealth statutory authority responsible for the administration of Aboriginal land in the Top End of the Northern Territory.

The Northern Territory’s Chief Justice has enabled Aboriginal customary law to have a role in the punishment of an Aboriginal couple convicted of drug offences.

The landmark case serves to recognise the surviving reality and power of Yolngu law and its potential to coexist with mainstream legal systems. It also puts paid to the myth that customary law cannot be taken into account when Northern Territory courts sentence an Aboriginal person.

In the NT Supreme Court in December 2012, Edwin Djambuy and his wife Sheraldine Yakayaka pleaded guilty before Chief Justice Trevor Riley to having unlawfully supplied a commercial quantity of cannabis to people in the Millingimbi community.

Chief Justice Riley held Mr Djambuy to have been more culpable and said he would have sentenced him to 16 months gaol; but, taking into account the guilty plea, he imposed a 12-month gaol sentence, suspended after 28 days. Ms Yakayaka would have received a 12-month sentence but for her guilty plea. Her sentence was for eight months, but it was immediately suspended.

Mr Djambuy was placed on a suspended sentence for one year after his 28-days in gaol. Usually, the court would have made him subject to supervision by NT Corrections for the period of the suspended sentence.

Remarkably, though, the judge did not regard that sort of supervision as “necessary, or indeed appropriate”. Rather, he accepted submissions that the couple would be punished and supervised under Yolngu law.

The couple were “arrested” immediately upon their return to their community and banished to an isolated “prison” under supervision of elders.

Of Mr Djambuy, the Chief Justice said: “I am told he will be under strict supervision (under Yolngu law) within the community by community members for a significant period and that would seem to me to be an adequate response to any need for supervision in his circumstances.

The outcome has recognised the efficacy of Yolngu law and saved the NT Government having to expend money and resources to supervise Mr Djambuy for the one year of his suspended sentence, which expired on January 17 this year.

But the outcome was initially opposed by the DPP when the matter came before the Supreme Court.

Crown prosecutor Steve Ledek attempted to argue that allowing the defendants to be subject to a regime of punishment under traditional law would offend Section 16AA of the Commonwealth Crimes Act: “In determining the sentence to be passed, or the order to be made, in relation to any person for an offence against a law of the Northern Territory, a court must not take into account any form of customary law or cultural practice as a reason for … excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates …

Section 16AA is a carry-over from the Commonwealth legislation (the Northern Territory Emergency Response Act) which allowed the Howard government’s so-called Intervention into NT Aboriginal communities in 2007.

The transcript of the Supreme Court proceedings records Mr Ledek’s objections to the extra option of punishment under Yolngu law:

CHIEF JUSTICE RILEY: It’s not to do with the seriousness of criminal behaviour, which is acknowledged. It’s to do with consequences that may have an impact upon sentence. What do you say about that, Mr Ledek?

MR LEDEK: Your Honour, if it is purported that necessarily a punishment that leads to the rehabilitation that may include ostracisation from the community and being sequestered in a place where the community or the elders have deemed it appropriate for them to serve out their time as the community punishment. And for your Honour to have to take that into consideration to either incorporate that as a lessening of the sentence that would be imposed because of the nature of the extra-curial punishment, would necessarily offend the rule of your Honour making a decision…

CHIEF JUSTICE RILEY: Sorry, where does it offend that?

MR LEDEK: Well, this would be in lessening the seriousness of the criminal behaviour by way…

CHIEF JUSTICE RILEY: It doesn’t lessen the seriousness of the criminal behaviour, it provides a consequence of the behaviour, which doesn’t make it less serious but shows that they are being dealt with or they have consequences.

And, later:

MR LEDEK: It’s lessening the seriousness of the criminal behaviour because the repercussions are out of your hands because they’re being dealt with by another party which makes -– should make it -– less serious objectively in the Court’s eyes because of that extra-curial punishment (under Yolngu law).

Chief Justice Riley did not accept the Crown’s argument.

John B. Lawrence, Senior Counsel, argued that the Court should accept a role for Yolngu law as part of the punishment. Neither offender had a prior criminal record and Mr Lawrence stressed their good prospects for rehabilitation.

To support his submissions, and to explain to the Court how Yolngu law would come into force after the two accused returned to Ramingining, Mr Lawrence called Reverend Doctor Djiniyini Gondarra OAM as a witness.

Dr Gondarra, a senior lawman (Djirrikay/Dulkarra), told the Court that the offenders would be immediately arrested and taken to a “special Yolngu prison” where they would be protected and watched, isolated from each other, from their families and from the community.

“This is a very serious thing and the community has expected that this has to happen,” Dr Gondarra said in evidence.

And, happen it did.

The supervised isolation under Yolngu law lasted for eight months, and Mr Djambuy’s rehabilitation was marked during a Yolngu legal ceremony at Ramingining in September last year.

The ceremony was attended by defence barrister John B. Lawrence SC and other members of the Darwin legal profession.

“The proceedings were formal and clearly significant, not only in the large numbers attending but also in the palpable aura attached to them,” Mr Lawrence said.

“Literally hundreds of young men were dressed and painted appropriately. I wore my wig and Senior Counsel’s silk robes.

“Djiniyini explained our presence and what had happened — which was secret and that was respected by the white lawyers.”

Dr Gondarra reports that Mr Djambuy made excellent progress in terms of receiving teachings and discipline. He didn’t see his wife and son for several months, and was not allowed leave to attend the funeral of his grandmother.

He’s now back in Milingimbi with his wife. Both have jobs and their child is attending school.

“He has changed as a person. He is remorseful and is now a positive role model for other young men. Djambuy’s case is a good example of two laws working together,” Dr Gondarra said.

“This is the first time in a long time that Balanda (European) and Yolngu laws have worked together like this.

“The lesson is in finding a common path to achieve a commonly desired outcome — increased community safety by making the law more relevant and meaningful for Yolngu. Yolngu are not asking for a separate system. This is about creating a dialogue between the two systems.”

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4 thoughts on “Djambuy’s case and the recognition of Aboriginal customary law

  1. Bella Munro

    I know this is years old, but I’d be interested in your views on George Pacoe Gaymarani’s treatise on customary law (particularly the use of women being “required to participate in sexual activities” as punishment for witnessing a secret male ceremony).

  2. Andybob

    Presumably spearing an offender in the leg would still be a crime. Banishment to a ‘special Yolngu prison’ sounds like false imprisonment.

    If a person was maltreated in the special Yolngu prison would they have a claim against the NT government ?

  3. desert_mob

    An important moment in this country. I am sure it won’t be lost in law, but other aspects of society should pay heed. This is significant.

  4. Hector Lung

    The fact that this sentence was not appealed demonstrates the non-Aborignal authorities had a stomach for this outcome which is most promising. One wonders what would have happened if the tabloids had have sensationalised this case but now, hopefully, people can see the wisdom of, wherever possible, tailoring sentences that actually reverberate with the offender. Dr Gondarra and his people have spent many years constructing a mutually respectful relationship with the NT legal system and hopefully this relationship can bear more fruit. The next step might be an exploration of whether Aborignal people of other regions see value in this type of engagement. At a time when the massively expensive balanda correctional system is under scrutiny, opportunity knocks.

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