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Thanks Andrew for raising these issues.

You point out that some aboriginal Australians have dismissed interpretations of customary law that permit violence and coercion of women as ‘bullshit law’. Good – all the very best of good luck to them with that.

However let me pose this question: Suppose it were to turn out that customary law does permit violence against women? Should that be allowed as a defence in the case of rape or serious assault? I assume you would agree with me that it should not – that the right of women (or children, or anyone else) not to be treated in this way should override any such consideration.

The fundamental problem is that, in the era of identity politics, this kind of defence is even entertained. To the extent that it is entertained, courts find themselves saddled with the extraordinarily difficult – in many cases near impossible – task of determining just what customary law is without the benefit of written statutes and meticulously documented cases of the kind we have with British common law. That is even before you try to deal with the no doubt immense variation between tribes.

All there is to go on is traditional custom and practise – it is a bit analogous to what is termed ‘customary international law’ that essentially elevates what nation states customarily do to the status of international law in the absence of internationally agreed treaties and conventions.

If you look at such custom and practise in pre-colonial aboriginal communities, the overwhelming evidence is that violence against women was endemic and often extreme, contrary to the romanticised nonsense we see in the identity politics literature such as the article in the Stanford Encyclopedia of Philosophy I cited in my article. Check out this article for a detailed recitation of the evidence based on paleontological studies and the accounts of early French and British explorers https://quadrant.org.au/opinion/bennelong-papers/2013/05/the-long-bloody-history-of-aboriginal-violence/#_edn3

I recommend you look at Peter Sutton’s work, which I cited. No-one can doubt his credentials as an extremely well informed and scholarly (he is a linguist and anthropologist) as well as sympathetic champion of aboriginal people. At the time he wrote his book ‘The Politics of Suffering’ in 2009 he had spent thirty years working closely with aboriginal communities. Among other things, he was the main expert witness on the aboriginal side in the Wik native title case. If you can’t get hold of his book check out the article that preceded it https://www.arts.kuleuven.be/ling/func/cyp/sutton/2001af.pdf

This is his assessment of the role of traditional culture in perpetuating violent behaviours:

'My unqualified position is that a number of the serious problems indigenous people face in Australia today arise from a complex joining together of recent, that is post-conquest, historical factors of external impact, with a substantial number of ancient, pre-existent social and cultural factors that have continued, transformed or intact, into the lives of people living today. The main way these factors are continued is through child-rearing. This issue is particularly important, and controversial, in the area of violent conflict.'

Sutton maintains that conditions, especially in remote communities, have not only failed to improve since the shift in policy that stressed empowering traditional culture initiated by H.C. Coombes and the Whitlam government in the early 1970s, but have deteriorated – in some cases severely.

The severity of the problem is quite staggering – rates of hospitalization due to violence among aboriginal women are, depending on the study and region, between 34 and 80 times those of non-aboriginal women. There is no parallel for this in any other segment of the Australian community, not even the most disadvantaged https://youtu.be/MSOW9GSqsA0?t=209

Yet, according to Jacinta Price and her indigenous colleagues, the very people you would expect to champion the case are mute, silenced by fear of being accused of disrespecting indigenous culture. It seems in the identarian mindset, culture trumps women’s rights, including the right to live free of the fear of severe violence. Price’s notes the irony (see her speech embedded in the article):

'There was a four-decade long campaign to win citizenship rights for Aboriginal Australians in this country, but now the absolute fundamental rights of Aboriginal women, girls and children are being denied and ignored by white feminists and human rights lawyers who believe they know better - who believe that the real perpetrators are English-speaking white men.'

This is the triumph of ideology over basic human decency. Sutton makes essentially the same point in 'The Politics of Suffering':

'Nor is my starting point the need to preserve what is left of traditional indigenous culture, or to maintain the older forms of connection between people and land. These heritage matters are arguably serious considerations, but they are not the first considerations. I say this after a lifetime of placing the highest value on indigenous languages, land rights, social organisation and the visual arts.'

'The first consideration, instead, must be to focus on those conditions that are conducive to the emotional and physical wellbeing of the unborn, infants, children, adolescents, the elderly, and adult women and men.'

'It is remarkable how many people living in the comfort, affluence and healthy surroundings of Australia’s suburbia have, in the debates over indigenous policy and especially over the Intervention, covertly promoted the view that respect for cultural differences and racially defined political autonomy takes precedence over a child’s basic human right to have love, wellbeing and safety. It is as if political feelings and political values are more important than one’s emotional feelings and morals values as fellows of those other human beings in the ghettos. Maybe that is harsh. These are harsh questions.'

You point out that in former times the subjugation and exclusion of women was a feature of Western societies. That is undoubtedly true, but Western societies have evolved. All the more reason, I would have thought, to endorse Jacinta Price’s view of traditional culture:

'Why is it that we should remain stifled and live by 40,000 year old laws when the rest of the world has had the privilege of evolution within their cultures, so that they may survive in a modern world? Why in these times should there be an ‘us and them’ mentality.'