Aborigines call for return to 'payback'

DARWIN - Australia's Aborigines are demanding the right to dispense harsh tribal justice free from the constraints of Western law as they struggle to combat an epidemic of crime and social dysfunction.

More than 200 years after Aboriginal laws were snuffed out by the British colonisation of Australia, there is a push for a return to traditional punishments such as ritual spearing and clubbing.

Aboriginal elders believe that such "payback" punishments are a potent weapon in dealing with remote communities racked by violence, unemployment, alcohol abuse and petrol sniffing.

Aborigines complain that they are currently often punished twice for a crime: once by their community, and a second time under "whitefella" law.

Many say they would rather undergo the shock of a physical assault from their peers than spend months or years in prison.

Indigenous Australians are heavily over-represented in the country's jails - they account for 2 per cent of the population but make up 20 per cent of prisoners.

The profound gulf between the two systems of law was illustrated last year with the case of Jeremy Anthony, a member of the Walpiri tribe from the remote Tanami Desert, who was accused of stabbing his wife to death in a drunken rage.

The 24-year-old was arrested and taken to Darwin, where the Supreme Court granted his request for bail despite a strong suspicion of the fate which awaited him.

When Anthony was driven back to the tiny Outback settlement of Lajamanu, 800km south-west of Darwin, he was presented to his father-in-law, who set about stabbing him in the legs with a wooden-shafted hunting spear.

Suffering severe leg injuries and a broken arm, he was hastily patched up, returned to Darwin and is due to face trial later this year.

"Anthony wanted to go back and get speared, otherwise he would never have been able to live in his community again," said Sharon Payne, the head of the North Australia Aboriginal Legal Aid Service, and herself an Aborigine.

"Payback gives closure to the victim's family and the offender. People feel cleansed afterwards."

Had Anthony not returned home, his relatives would have been in danger of being subjected to payback themselves - either by spearing, or by being beaten with fighting clubs known as nulla-nullas.

Judges and magistrates across Australia already give tacit recognition to traditional law by handing down lesser sentences if payback has taken place or is likely to take place.

Last year a Northern Territory law reform committee concluded that "there is now a wider recognition of the claim by Aboriginal groups to have customary law become, in some way, part of the general law in Australia".

But human rights groups view payback as barbaric and say there is no place for spearing and clubbing in 21st-century Australia.

Vince Kelly, the president of the Northern Territory Police Association, is also suspicious of any move to absorb elements of tribal law.

"Our experience, particularly with murders and sexual assaults, is that they often get dressed up as payback when really they are nothing more than acts of drunken violence," Kelly said.

Critics say Aboriginal women are likely to suffer under any return to traditional law because it often runs counter to their rights.

Three years ago a 50-year-old Aboriginal man, Jackie Pascoe Jamilmira, successfully argued in court that he was acting according to tribal law when he took a 14-year-old girl as his wife, against her wishes.

"The question is, which customary law should be incorporated?" said Rex Wild, the Northern Territory's director of public prosecutions. "The law expounded by male elders, or that of the female elders, who tend to be more modern?"

While it is highly unlikely that the more extreme forms of customary law will ever be allowed under Australian law, some non-violent alternatives may be accepted by white courts.

Aborigines convicted of crimes could be ordered to pay compensation to their victim's family, for instance, or banished from their communities for months or years.

An initiative known as circle sentencing has recently shown success in integrating Aboriginal concepts of justice with white law.

First developed among the native American tribes of Canada in the 1990s, circle sentencing involves the judge or magistrate consulting tribal elders before sentencing an offender.

Court staff, victims, defendants and family members sit in a circle rather than in a traditional court room, with complicated legal language replaced by plain English.

Circle sentencing began in the Northern Territory last month but is already being used in other states.

In Nowra, New South Wales, where circle sentencing was introduced three years ago, the average number of criminal cases brought before the courts each month has plummeted from 40 to 14.