'Custom'

I often find myself returning to this poem. It's by Grace Mera Molisa (Black Stone, 1991). It's probably controversial, and it obviously doesn't present the complexity of custom, and it's somewhat negative...but I still like it...I like it aesthetically and it's a bit of a touch-stone for me to come back to when people are challenging me about my "right" to be writing on the issues faced by Melanesian women when I'm a white woman.

If it were about my own experiences, I'd change "Custom" to "religion".

'Custom'

misapplied

bastardised

murdered

a Frankenstein

corpse

conveniently

recalled

to intimidate

women.

What does self-determination mean?

I caught this interesting interview by Kerry O'Brien of Noel Pearson the other night - Pearson explained the complexities of self-determination and expressed his frustration with well-intended but foolish calls for a return to paternalism in a way that I thought was not only accessible, but immensely gracious:

Action needed to stop ongoing Aboriginal crisis: Pearson

Reporter: Kerry O'Brien

KERRY O'BRIEN: Cape York Aboriginal leader Noel Pearson, mentioned by the Health Minister, won't be part of Monday's summit, but he's already seen his share of them, as he has of Aboriginal communities that represent success stories and others that don't. I spoke with Noel Pearson in Brisbane earlier today. Noel Pearson, are you supportive of Monday's summit? What would you want to see come from it?

NOEL PEARSON, DIRECTOR, CAPE YORK INSTITUTE FOR POLICY AND LEADERSHIP: I think the danger, Kerry, is this will be Groundhog Day once again, where we come together every four or five years to discuss the ongoing Aboriginal crisis and we actually don't do anything in the wake of it. I certainly think that there is a crisis in many of our communities, that government must take action on the problems and assist communities with the opportunities but I've got to say, just in the last 10 years, I've participated in at least two of these crisis sessions and I don't see that we've made a lot of progress in the wake of them.

KERRY O'BRIEN: Did Health Minister Tony Abbott, his comments, take you by surprise when he talked of returning to a paternalistic approach to intervene in dysfunctional Aboriginal communities?

NOEL PEARSON: I think the notion of paternalism is correct if you're talking about a parent or father having jealous regard for the safety and protection and future of their own child. That is paternalism, that is correct - when parents and community members such as myself have real anxiety and take steps for the protection of our future generations. But when it comes to government and when it comes to people of another race presuming to carry out a paternal role in relation to the welfare of people of another race, then I think, you know, we're returning to an old institution that became extremely problematic for Aboriginal people.

KERRY O'BRIEN: But if you take the word paternal out of the equation, what's wrong with the government taking the same approach to a seriously dysfunctional Aboriginal community where people's lives are a misery, as government might to a dysfunctional city council, like Melbourne city council, which was done at one point, that is, putting in an outside administrator to try to restore some kind of basic stable infrastructure?

NOEL PEARSON: Firstly we have to recognise there is a range of communities. Many communities are on the mend. Many communities have good leadership, good administration and good directions set and they're on the path to recovery and uplift for their people. There are some communities that are in a miserable condition where the safety and protection of women, children, old people, sober people is urgent and yes, I for one am a supporter of the need for government to step in and ensure basic safety and protection through law and order measures but you can't just have unilateral government action through law and order. You actually have got to work in partnership with the sober people, with the good people, to build ownership of those social order measures.

KERRY O'BRIEN: How do you rationalise to yourself, how do you come to understand, a community that has become so dysfunctional, where a few who are the leaders of the community can dominate, to their own ends, including things like sexual abuse of children, including, it seems, deliberately leading young kids into petrol sniffing so they can prey on them. How do you feel as an Aboriginal leader and activist over decades when you see that kind of image being projected?

NOEL PEARSON: It's absolutely terrible. It's a consequence of us letting obvious social problems continue without any courage for intervention. Grog has been getting out of hand in our community for decades. Marijuana has been getting out of hand for the last 15 years in Cape York. These problems have not stabilised. They keep snowballing and because of our refusal to intervene and take measures such as restrict alcohol, such as having a zero tolerance approach to drug dealing and drug abuse within our community, our inability over the last 20 or so years to really understand that, gee, these problems aren't just a kind of chronic problem that stabilises, these problems mushroom and, you know, a kid that's been subject to an abuse two generations ago turns into an adult who is a terrible abuser of future generations and we're now living with the legacy of our failure to confront these problems when they first arose.

KERRY O'BRIEN: You allowed yourself to be harnessed to the Federal Government. You acted, as a time, as an adviser to the Prime Minister. Was that a genuine partnership? Do you see often what you would regard as genuine partnerships between Aboriginal communities and governments and how widespread is that? Whereas you say the Aboriginal community is the major partner.

NOEL PEARSON: I say that there ought to be partnership. We've always said there's got to be partnership between Aboriginal people, government and the private sector and government is most powerful in the resolution of social problems if they understand their limits. Government is most powerful when they understand that the best role they can play is as a junior partner supporting and enabling and assisting but the minute they think that they can step over the top of Indigenous people and say, "We prescribe a certain pathway for you and you just stay passive and we will lead because you're useless," I think, you know, there's got to be...

KERRY O'BRIEN: Are you saying that is what predominates today?

NOEL PEARSON: That is our entire interaction with governments at both levels, State and federal, that Aboriginal salvation is somehow seen as something government must ultimately take charge of. Well, I think most Australians would understand that ultimately the security and safety of Aboriginal children in the future has got to be ultimately the responsibility of parents. Now, we're a long way from that in many families. We've got parents who have really abandoned their children because they're stuck in alcohol abuse, drug abuse, violent situations and so on but we have to restore that situation. At the ends of the day our aim has to be to restore the circumstance where Aboriginal parents, Aboriginal people take responsibility and my fear about the current directions is that there's this continued assumption that somehow government has got to completely take charge and the Aboriginal people are some kind of passenger in the process.

KERRY O'BRIEN: People talk about Aboriginal self-determination failing but different people can mean different things by self-determination and I think there's been confusion about what it really means. Mick Dodson says it hasn't failed because it hasn't been tried. What's your position?

NOEL PEARSON: If you mean by self-determination that it is about taking responsibility, I'm in complete agreement. If self-determination is about taking responsibility, then that's what I'm about, because at the end of the day, you know, our salvation lies with us. We need to be supported by good-willed Australians, we need to be supported by government but our salvation and the salvation of our children lies essentially with us. Unless we have an Indigenous leadership that steps up to the plate and grabs the responsibility back off government. Because my experience over the last decade in thinking about these problems and working with these problems is that the bureaucracies - the bureaucracies which have sucked the life out of us, sucked the responsibility out of us will not yield back that responsibility freely. We have got to take back responsibility and insist with the government that the future of our communities lies with us at the end of the day.

KERRY O'BRIEN: You would be widely regarded as one of the most articulate and successful Aboriginal leaders this country has produced. How much power do you feel you and the other leaders of your community have? Real power?

NOEL PEARSON: I think the problem of Indigenous leaders is that we - in terms of time, we spend 95% of our time thinking about these problems. 95% of our knowledge is dedicated to the resolution of these problems but we have 5% of the power and conversely, politicians - this problem is only 5% of their attention, 3% of their knowledge and yet they possess 95% of the power and that's the paradox within which we labour. That's the paradox within which we labour but the problem is we live in a place where, as I say, we possess a fraction of the power to be able to do something about it.

KERRY O'BRIEN: Noel Pearson, thanks for talking with us.

NOEL PEARSON: Thank you, Kerry.

Rights of indigenous women and children must come first

In the last few weeks, as the issue of violence, particularly sexual, hit the headlines in the Australian media, there have been frequent claims that indigenous 'custom' or 'culture' somehow encourages or at the very least facilitates such atrocities. Until today, newspapers have at best devoted one or two lines to quoting those who disagree with this view. Finally, today's Age devotes some decent space to the issue, which Larissa Behrendt fills wonderfully (here).

THERE is much evidence to support the assertion that stereotypes of Aboriginal women as bad mothers and promiscuous women exacerbate their treatment in court. The reliance by perpetrators of sexual violence on what has been termed a "customary law" defence has raised arguments from the bar table, accepted by the bench, that rape in Aboriginal culture is not treated as seriously as it is in Western culture.

In December last year, the Northern Territory Court of Criminal Appeal increased the sentence of an Aboriginal elder who had raped a 14-year-old Aboriginal girl. During the trial the defence had argued that the man had not been aware of the fact that it was against the laws of the NT to rape a woman, and instead the judge had decided that the man had honestly believed that he was entitled, under customary law, to take her as a wife and to sodomise her. He had given a one-month prison sentence in the first instance and this was increased to three years and 11 months, with 18 months minimum to serve, by the appeal.

This is not the first time that a trial judge has shown leniency to criminal behaviour against Aboriginal women by giving more weight to the "customary law defence" of older men than to the rights of the young girl who has been violated. It should be stressed that in other cases, Aboriginal women have strongly contested the misogynistic views put forward by defence lawyers — and happily accepted by magistrates and judges — and instead, these women assert that under our traditional cultural values, Aboriginal women are treated with respect, crimes of sexual assault are treated with great severity and that it is only since the sexism of the colonising culture was imposed on us that Aboriginal women were treated as inferior.

Colonial notions that Aboriginal women are "easy sexual sport" have also contributed to the perception that incidents of sexual assault are the fault of Aboriginal women. The result of these messages to Aboriginal women by their contact with the criminal justice system would only reinforce any sense of worthlessness and lack of respect that sexual assault and abuse have scarred them with.

The statistics that link sexual abuse with drug abuse also relate to low socio-economic living standards. It is for these reasons that much careful analysis should be given to the recommendations of the royal commission on Aboriginal deaths in custody. The report noted that the overrepresentation of Aboriginal people in custody was because indigenous people would be convicted and given custodial sentences for crimes that non-indigenous people would not be charged with — namely, public order offences such as drunken behaviour or offensive language. In these circumstances, it was recommended that alternatives to imprisonment be explored.

Nowhere in the royal commission report was there a recommendation that offences of a serious nature should not be given serious punishment and it is with much concern that we see a general trend to try to avoid or lessen custodial sentences for any crime where the offender is indigenous.

In matters of sexual assault, it sends the wrong message to not impose harsh sentences for offenders, especially those who prey on children. These serious offenders were not the prison population that was to be targeted in reducing the overrepresentation of indigenous people.

I am a Eualeyai and Kamillaroi woman. My nation is matrilineal and our creation spirit is female. As a child, I attended political meetings with my father and watched as the men postulated and shouted and then, in the end, the women would have the final say. I look at women whom I have grown up admiring, such as Marcia Langton, Pat Anderson, Roberta Sykes, Mum Shirl and Norma Ingram, and I did not see victims or submissiveness. I saw women who understood that they are the backbone of our communities and I grew up respecting them and I feel that this was a strong cultural value imbued in me.

I was shocked as I began my professional career working in indigenous affairs to see the level of sexism that pervades Aboriginal politics and it only increased my admiration of the strong Aboriginal women who lead our indigenous communities who continue to insist that mistreatment of women is not acceptable under any circumstances.

At the same political meetings, I heard a lot about our rights. I grew up understanding that we have a right to our sovereignty, our self-determination, access to health, access to education and freedom from racial discrimination.

We often claim that we have a whole range of rights that are not recognised and protected by the Australian legal system. For this reason, it makes no sense that we claim all of these rights that are long recognised as inherent in every human being, only to ignore them when that human being is a young girl exposed to great physical, mental and emotional danger. There is no reason our cultural values cannot conform to respect basic international human rights laws, and they should and must.

And if it is a matter of balancing the cultural rights of an old man to take a child bride against a child's right to be free from physical, sexual, mental and emotional abuse, I think the latter has to win, every time. If we are to ensure the continuation of our nations and our cultures, we need to make sure that the rights of our children are protected first and foremost. Our elders should know better.

Giving light sentences to perpetrators of sexual and physical violence against children not only gives comfort to the criminals that their behaviour will be protected by the white legal system, it sends a terrible message to our young people of how little that system — and their own people — value them. Hiding behind "traditional culture" to justify the actions is an insult to the victim. The NT court was right to increase the punishment to better suit the the crime.

Larissa Behrendt is professor of law and director of research at the Jumbunna Indigenous House of Learning, University of Technology, Sydney. This is an edited extract of her Alice Tay Memorial Lecture, delivered last week at the Australian National University, Canberra.

Women and children often the most vulnerable

In the Solomon Star News today, a Solomon Islands writer notes that women and children are the most vulnerable in violent situations (here). She cites the example of women and children escaping the rioting by jumping from the windows of their homes and swimming across Mataniko River to safety. This means of escaping, she notes, 'can be very risky and dangerous for women and children in particular.'