One of the Northern Territory's most senior judicial officers has told a legal networking event there is a "significant cultural component" to domestic violence against Aboriginal women and "difficulty" in talking about it, for fear of "inaccurately" being "labelled as a racist".
Justice Judith Kelly was invited to speak at a Women Lawyer's Association function on August 26, when she gave a talk about domestic violence, specifically in Aboriginal communities, drawing on her experience as a judge responsible for sentencing perpetrators.
Justice Kelly's full speech has also been published on the Northern Territory Supreme Court's website.
In her speech, Justice Kelly noted the contributing factors to the "epidemic of violent abuse" are complex, listing contributing factors such as unemployment, lack of education and health resources and inadequate housing in remote Aboriginal communities.
She also said there was a "significant cultural component" to domestic violence.
"There is still, in some quarters, a view that the use of physical violence to 'discipline' wives [and others who have done the 'wrong' thing] is justified and is lawful under customary law," Justice Kelly said.
"There is also a widespread belief that the infliction of violence in retaliation for violence – whether formally in organised payback or haphazardly in individual assaults, raids or vendettas – is lawful [and at times obligatory].
"The blood feud is alive and well in the territory and, by and large, the participants believe that they are justified by customary law."
Justice Kelly also said some communities prioritise perpetrators over victims and women are often discouraged from reporting violence to authorities.
Talking about domestic violence in Aboriginal communities was "difficult" according to the judge, due to "an ideology of supposed 'anti-racism'".
"[Anti-racism] is beginning to assume the dimensions of a religion or a cult under the influence of which people and institutions are casually and inaccurately labelled as "racist" without any evidentiary basis for the charge," Justice Kelly said.
"Eschew the invidious terms 'institutional racism' and "systemic racism" unless there is at least some evidence that the institution in question does actually have racist policies."
The judge, who has been on the bench since 2009, encouraged her audience to "call out" racism, noting she thinks modern Australian society "is not racist" and society has become "super sensitive to any charge of racism".
"Most folk would almost rather be branded a paedophile than a racist," Justice Kelly said.
"In the past, Australian governments had racist policies and a significant portion of the community had unthinking racist attitudes.
"These things should be acknowledged, and those times have left a legacy of disadvantage but the fact that some contemporary problems have been caused or contributed to by racism in the past does not mean that they are the result of racism today."
The judge also said there was "not a lot" lawyers and the court system could do about domestic violence against Aboriginal women, encouraging people to call triple-0 if they saw or heard something of concern.
Audience members 'caught off guard'
Western Arrernte and Jaru woman Nikita Dos Santos attended the event.
"I was very excited to attend this event, it would be great networking … I [thought] I was going to feel empowered," she said.
But the law student said she was left disappointed and wondering why the judge had been asked to speak on the topic of domestic violence against Aboriginal women.
"To insinuate that it's an aspect within our culture that is accepted is invalidating our lived experiences and our culture," Ms Dos Santos said.
Madge-Pearl Thaiday, a Girramay, Djiru and Erub woman who is also studying law, said she felt the speech demonised and vilified Aboriginal men.
Ms Thaiday said it was "harmful" to insinuate institutional racism didn't exist "when we are affected by it every day".
"Why are we perceived this way, in the media, through school and through institutions, when a lot of people that form opinions haven't met us, haven't had a conversation with us, or have had the lived experience?" Ms Thaiday said.
"Domestic violence is a national issue, it's not just an Aboriginal issue," Ms Thaiday said.
Judge asked to recuse herself, following previous remarks
In June 2022, Justice Judith Kelly gave a rare interview to The Australian newspaper on the topic of domestic violence in Indigenous communities, in which she said women were suffering from "an epidemic of extreme violence".
"Women in the bush are trapped in an epidemic of extreme violence brought about by intergenerational abuse and disadvantage and a culture that protects perpetrators before victims," Justice Kelly was quoted as saying.
"There is not just a culture of silence; there is an active silencing or attempt to silence Aboriginal complainants, women who have been the victims of violence from men."
Two months later, a defence lawyer representing an Aboriginal client in Darwin requested the justice recuse herself from hearing his client's domestic violence matter.
"The defendant contends that a number of matters arising out of that interview would lead a fair-minded lay observer to apprehend that I might not bring an open and unbiased mind to sentencing the defendant," Justice Kelly wrote in her judgement.
"The remarks were general in the sense that they did not refer specifically to the defendant about whom I know nothing other than what has been communicated to me by defence counsel and who I had never heard of at the time of the interview.
"It has not been suggested that my own sentencing remarks have, in the past, been over-emotional or intemperate or other than appropriate for the purpose," Justice Kelly wrote.
The judge dismissed the defence's application.
