COMPARATIVE ANALYSIS OF SOUTH SUDANESE CUSTOMARY LAW AND VICTORIAN LAW

Transcription

1 Comparative Analysis of South Sudanese Customary Law and Victorian Law COMPARATIVE ANALYSIS OF SOUTH SUDANESE CUSTOMARY LAW AND VICTORIAN LAW

2 This Paper has been produced by the Springvale Monash Legal Service Inc. and printed with assistance from Comic Relief and the Danks Trust. The Paper has been prepared to encourage discussion of, and further research into, issues of access to justice for South Sudanese Victorians, and particularly to stimulate activity amongst local service agencies, the police and the communities, toward the establishment of positive policy development, projects and programs. Title: Comparative Analysis of South Sudanese Customary Law and Victorian Law Author: Springvale Monash Legal Service Inc. Artwork: Chris Maplestone Springvale Monash Legal Service Inc This material is copyright. It may be reproduced for legitimate educational or review purposes; copying for other purposes must be authorised by express permission of Springvale Monash Legal Service Inc.

3 Comparative Analysis of South Sudanese Customary Law and Victorian Law The research for this Paper was undertaken as part of a Project initiated by a partnership between the Sudanese Integrated Learning Program (SAIL) and the Springvale Monash Legal Service Inc. (SMLS). The bulk of the work was carried out by the following senior Monash University law students engaged in community development programs under the supervision of SMLS community development worker, Dave Taylor: Jessica Ie Lauren Smith William Hong Pritika Kumar Timothy McCulloch Elizabeth Wood Sarah Wainwright Tania Genge Simon Schenkel Daryl Orillaza Nicholas Harrison Ellie Chew Thomas Sankey Mihyun Park Der-Wei Su Jennifer Barrett This Paper could not have been produced without the assistance of members of the South Sudanese community, who kindly gave up their time to inform us about various aspects of South Sudanese customary law. Further, a number of organisations which work with South Sudanese Victorians also contributed to the paper by sharing their experiences with us. We would like to acknowledge Helen Drake, who provided us with a large amount of reading material on South Sudanese customary law. We would also like to thank Matthew Albert, who also provided us with reading material and has met with us regularly over the years to assist in the development of this project. Another Springvale Monash Legal Service Project For more information contact: Dave Taylor Community Development Worker Springvale Monash Legal Service Inc. p (03) e dave.taylor@law.monash.edu.au

4 Contents Contents Foreword... 1 Executive Summary... 3 Introduction... 5 Methodology... 8 The Sudanese Population of Victoria History of the Sudan The Sudanese Political System Human Rights International Human Rights Instruments Human Rights Laws in Australia Human Rights Laws in Victoria Human Rights Laws in Sudan Current Situation for South Sudanese Victorians Current Situation in Australia Size of Population, Demographics, Family Structure South Sudanese Cultural and Tribal Groups Living in Victoria Issues Particular to the South Sudanese Population Housing Family Structure Health Financial Pressure Perceptions in South East Melbourne Customary Law The Concept of Customary Law South Sudanese Customary Law Recording of Customary Law... 35

5 Comparative Analysis of South Sudanese Customary Law and Victorian Law Enforcement of Customary Law Development of Customary Law Sudanese Customary Laws which Differ from Victorian Law Comparing South Sudanese Customary Law with Victorian Law Philosophical Underpinnings Structure Litigation Enforcement Comparative Analysis Justice/Police Systems Criminal Laws Family Law Family Structure: Sudan vs Australia Marriage: South Sudan Divorce Family Problems and Disputes: Sudan vs Australia Driving Regulations, Licensing and Public Transport Regulation of Driving Licensing Driving Experience and Awareness Drink Driving and Other Driving Offences Public Transport Consumer Law Financial Transactions Real Estate Transactions Utilities, Services and Payment of Bills Financial Hardship Substance Use... 66

6 Contents Conclusion Increased Community Education and Ongoing Assistance Increased Awareness and Training for Service Providers Suggested Areas of Further Research Findings and Recommendations South Sudanese History and Political System... Recommendations Sudanese Customary Law and Victorian Law Recommendations Family Law Recommendations Justice System and Police Recommendations Driving / Road Law Recommendations Consumer Law Recommendations Substance Use Recommendations Glossary Bibliography... 80

7 Comparative Analysis of South Sudanese Customary Law and Victorian Law Foreward by Matthew Albert One of my earliest interactions with a member of the Sudanese refugee community came just before an election. Having just received his citizenship, the young family man sought my advice on the voting process. Why should I vote?, he asked. I explained that in Australia voting was compulsory and so, if he did not, he may be subject to a penalty. He laughed out loud. Let me get this right in Australia I can be locked up if I don t vote? How amazing! In Sudan, I will be locked up if I do! This was the first of many conversations I have had where principles of local law are in stark contrast to the experiences of Sudanese arrivals in Victoria. As a lawyer and as someone who has had the privilege of working with Sudanese people from the early days of their arrival into Victoria, I have seen the repercussions of the gap between the legal expectations of newly arrived people, and the reality of the law. Often, the consequences and confusion that have resulted have been upsetting from the Sudanese angle, and at the same time understandable from the Victorian legal viewpoint. This report provides a detailed and much-needed insight into the challenges of one of the most significant entrant groups into the Victorian legal landscape, the Sudanese refugee community. It highlights the difficulties faced by adults in particular, who are expected to forego the system they have grown up with for a foreign system based on fundamental principles that are unknown to them. By so doing, the report goes a long way to bridging the gap of confusion and misunderstanding between law enforcers in Victoria and some of the state s recent arrivals. The report goes through, in great depth, the guiding principles of policing, road rules, family and criminal law in Victoria, and places each against the backdrop of analogous 1

8 Foreward principles and legal structures in southern Sudanese customary law. Additionally, it sets the scene for systemic changes to make the Victorian justice system just in its application to the Sudanese community. The authors of the report also grapple with many of the most pertinent issues within the Sudanese community. In particular, they stress the great diversity of legal experiences of Sudanese migrants prior to arrival in Victoria, and in doing so they emphasise that without sensitivity to all manner of differences, legal education loses its potency. The pre-arrival experiences of the Sudanese community are foregrounded by this report, and appropriately so. One particularly poignant example is that payment of a fine for a driving offence may seem insignificant to someone who has recently survived a threat on his or her life or safety. This is not to condone such a decision, but it certainly sheds light on the context in which unlawful conduct in Victoria may seem peripheral and unimportant. Reading the sections detailing Sudanese customary law, I found myself surprised by some of the underlying concepts of Sudanese customary law. I could see the internal coherence in them, but could not imagine running my life within their bounds. On reflection, I realise that in reverse, this could be similar to the questions and experiences of the Sudanese people who now call Victoria home. If the report only achieves this realisation in its readers, it will have been very worthwhile. For law makers, enforcers and commentators in Victoria, this report is a valuable guide to allowing Victoria s fastest growing ethnic community to enjoy the full benefits that our law can provide. Matthew Albert Overseeing Coordinator and Founder Sudanese Australian Integrated Learning (SAIL) Program 2

9 Comparative Analysis of South Sudanese Customary Law and Victorian Law Executive Summary Customary law in its various forms is often not well understood by those who are familiar with the English common law system used in Victoria. Conversely, South Sudanese Victorians often encounter difficulties understanding the legal system of their adopted country. While South Sudanese customary law is highly developed and has been established throughout centuries of usage, cultural and practical differences provide stark contrasts between the two legal systems. A lack of school-based education, and provision of general information about Australia, prior to arrival, and difficulties surrounding language, can exacerbate the difficulties many South Sudanese Victorians experience in adapting to Victoria s legal framework. This report aims to provide a brief insight into the South Sudanese community of Victoria and the culture and history of the Sudan. We hope that this, combined with a comparative analysis of Sudanese customary law and Australian and Victorian law, will foster a better understanding of the difficulties faced by South Sudanese when first arriving in Victoria. Extensive consultations and focus groups have been conducted with the Sudanese community in the South East region of Melbourne in order to shed light on their understanding of Victoria s and Australia s legal system. We have found that many South Sudanese Victorians have difficulty understanding, complying with or adapting to specific categories of Victorian law. These included laws related to the family and family violence, regulation of roads, traffic and public transport and consumer law. The problems experienced were often a result of a lack of understanding, a lack of respect for or willingness to comply with the law, and/or differing social and cultural norms in South Sudan and Australia. More generally, an overall distrust of the Victorian legal system was identified, most likely stemming from a lack of knowledge of the judicial process, although it is reasonable that any 3

10 Executive Summary Victorian citizen might be distrustful of legal process and enforcement institutions. We hope that this report will be a valuable resource for judicial officers, the police, government and non-government service providers and the entire community as a whole when working together with one of Victoria s fastest growing communities. 4

11 Introduction Comparative Analysis of South Sudanese Customary Law and Victorian Law Sudan has suffered a state of civil war for much of the past half century, leading to great social upheaval and dislocation. Prior to the recent conflict in the western region of Darfur, hostilities centred around the southern region of Sudan. The largely Christian ethnic African south has long been at odds with the Muslim ethnic Arab north over the structure and administration of the Sudanese state. The resultant conflict has seen an outflow of refugees from South Sudan. Despite an easing of tensions in the south, the Sudanese community remains one of the fastest growing in Australia. Of the 20,000 South Sudanese who have arrived in Australia over the past decade, over 30% have settled in Victoria. 1 The demographics of Victoria s South Sudanese population largely mirror those of South Sudan. Two large ethnic groups represented in South Sudan and Victoria are the Dinka and the Nuer. This report will largely focus on these two groups. The population is on average younger than the overall Australian population while family groups are larger. The vast majority of South Sudanese Victorians lack basic English skills on arrival and adult literacy in Sudan is 24%, much lower than the average Australian rate. The difficulties faced by newly arrived South Sudanese Victorians will be in many cases similar to those of other refugees who arrive in Australia but some issues are particular to the South Sudanese population. Having moved through a number of refugee camps, the majority of South Sudanese Victorians arrive under the Special Humanitarian Program and are responsible for the costs of 1 Commonwealth of Australia, Sudanese Community Profile (2007) < at 8 July C <htt 2 Se and 110 <htt 3 C 4 C 5 Le 6 B 7 B 8 C 9 C 10 B 11 C 12 B 13 C <htt 14 B ww 15 O 16 F 17 F 18 F 19 F 20 H 21 I 22 S 23P Ado 24 M 25 S 26U 27 S 28 I 29 M 30 C 31 C 32 C 33 A <htt 34 A <htt 35 F 36 L 37 C 38 C 39 S 40 C 41 B 42 C 43 C 44 S <htt 45 S <htt 46 S <htt 47 C high 48 C Stat 49 S <htt 50 S <htt 51 S <htt 52 S <htt 53 E

12 Introduction their own affairs, so financial pressures are often significant. Many have unemployment, accommodation and health issues, cultural adjustment issues, difficulties in receiving recognition for overseas skills and problems with children transitioning to Australian schools after long periods of disrupted or no education. 2 This is in addition to the need to adapt to a new and foreign culture which grants equal freedom and rights to all family members. Having acknowledged the above difficulties, this report aims to undertake a comparative analysis of Sudanese customary law and Victorian law in order to illustrate the difficulties faced by South Sudanese Victorians in comprehending and adapting to Victorian law. The comparison provided is based on consultations conducted by the Springvale Monash Legal Service (SMLS) with members of the South Sudanese community of South East Melbourne. It must be noted that the comparison provided will be subject to the limitations of the information gathered during this period of consultation and focuses principally on the Nuer and Dinka groups. The areas of Victorian law where South Sudanese Victorians encountered the greatest difficulties became clear from our conversations with the community itself as well as with police, government and non-government service providers. The areas of greatest concern were: a lack of understanding and confidence when dealing with the police and justice systems; 2 See for example Brown, Jill, Miller, Jenny and Mitchell, Jane Interrupted schooling and the acquisition of literacy: Experiences of Sudanese refugees in Victorian secondary schools (2006) 29(2) Australian Journal of Language and Literacy, , 151; Coffey, Margaret Life in Transit; the experiences of Sudanese refugees arriving in Australia (2004) Sudanese Online Research Association < &start_from=&ucat=38& at 8 July

13 Comparative Analysis of South Sudanese Customary Law and Victorian Law difficulties in relation to Australian law related to the family and family violence; compliance with laws and regulations related to driving, licensing and public transport; and a lack of familiarity with common consumer transactions such as real estate, utilities, contracts and banking and credit. 7

14 Methodology Methodology This report has been prepared by senior Monash University law students engaged in the community development component of the law elective, Professional Practice. Semi structured interviews were conducted with various individuals working in local agencies within the City of Greater Dandenong and neighbouring regions as well as involved and informed community members. These individuals provided information on their experiences in working with South Sudanese Victorians, and some of the difficulties this emerging community faces in Australia. They were selected through a snowballing process, largely through word of mouth and a general awareness of which organisations work closely with this community. Following this process, five focus groups were conducted with South Sudanese Victorians, to provide a description of South Sudanese customary law. These groups were conducted in various settings. Further the age and number of participants varied from group to group. Three of the groups consisted of male participants, generally over the age of 25. Another group consisted of youth, and the final group consisted almost entirely of women. Some of the groups required interpreters; others consisted of individuals who were proficient in English. Although the focus groups were guided with a schedule of questions, the process was broad and the questions open ended. Participants were encouraged to speak about what they felt was important when describing South Sudanese customary law. They were asked to comment on areas of Australian and Victorian law which have been identified as problematic for South Sudanese Victorians, including the laws relating to motor vehicles, family law, marriage and divorce, crime, relations with police and consumer law, and to describe the equivalent law or custom which governed these areas in South Sudan. At times, discussions were not limited to these areas. 8

15 Comparative Analysis of South Sudanese Customary Law and Victorian Law SMLS acknowledge that the focus groups are not necessarily representative of views and experiences of all South Sudanese Victorians, nor the descriptions of the various areas of law being representative of all South Sudanese cultural groups. Given the limited resources of SMLS and the fact that the focus groups varied in size, and the participants varied in age, experiences, gender, cultural background and period of residency in Australia, this report does not purport to represent all the perspectives or cultural groups. There are many different groups with numerous practices and as such, it is very difficult to find sole definitions of custom within the South Sudanese community. The methodology and expertise with which this report was written did not allow for a broader discussion of social issues facing South Sudanese Victorians and other refugees, and further research in the areas covered by this report is encouraged. We hope that this report achieves its aim of providing insight into a specific set of problems, related to the law, faced by one of Victoria s fastest growing communities. 9

16 The Sudanese Population of Victoria The Sudanese Population of Victoria History of the Sudan Sudan is located on the site of the ancient civilisation of Nubia which predates Pharonic Egypt. 3 It remained a collection of small independent kingdoms and principalities until In 1821 the Viceroy of Egypt, Mohammed Ali, conquered northern Sudan and opened up the south to the slave trade, with devastating consequences. Britain, looking to control the Nile, also became involved in Sudan in this period. Muslim Sudanese in the north did not appreciate the intrusion from zealous Christian missionaries. In 1881, Mohammed Ahmed proclaimed himself the Mahdi (a long-awaited figure in Muslim prophecy) and forced the British from Khartoum four years later. The Mahdists ruled until 1898 when they were massacred by an Anglo-Egyptian army. The Anglo-Egyptian Condominium Agreement was then imposed on Sudan, effectively making it a British colony. 4 It took until the 1920s for the British to assume control South Sudan. Once they had done so they attempted to segregate the South from the North by banning northern traders and Muslim preachers as well as Islamic dress and the use of the Arabic language. Some commentators consider that by severing normal contact between the North and South, the British exacerbated the inherent differences between the region s peoples. 5 Sudan achieved independence in This marked the start of a civil war that continued for all but 11 years up to The original constitution was silent on two 3 Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, 8. 4 Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, 8. 5 Lesch, A.M., Sudan: The Torn Country (1999) 98, Current History,

17 Comparative Analysis of South Sudanese Customary Law and Victorian Law crucial issues: whether Sudan would be a secular or Islamic state and whether the system of government would be a federal or unitary structure. The Arab-led Khartoum government in the North reneged on promises to the South of a federal system. This led to a mutiny by southern army officers, launching the first 17 years of civil war. 6 In 1969, Colonel Jaafar Nimeiri seized power. In 1972, he signed the Addis Ababa Agreement with the South. This agreement gave the South a measure of autonomy and quelled the civil war for 11 years. But in 1983, under pressure from fundamentalist Islamic groups and following the discovery of a coup attempt sponsored by Libya, Nimeiri reneged on the agreement and imposed Shari ah law on the South. The civil war started again almost immediately. 7 At this point John Garang, the famous southern rebel leader, formed the Sudanese People s Liberation Movement and Army (SPLM/A). 8 Nimeiri was overthrown in 1985 and elections were held in Steps were taken towards peace with the South but were consistently held back by objections from fundamentalist Muslims to any agreement that exempted the South from Islamic law. In yet another military coup, Lieutenant General Omar Hassan Ahmad al-bashir seized power in He remains in power today. During the 1990s border disputes with Sudan s neighbours, and the Sudanese government s alleged complicity in an assassination attempt on Egypt s president, damaged Sudan s international standing and led to UN sanctions in Conflict during this period claimed an estimated two million lives and led to four million Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs < at 8 July 2007, 3. 7 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs < at 8 July 2007, 3. 8 Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, 8. 9 Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, 8. 11

18 The Sudanese Population of Victoria internally displaced people. 10 Various peace efforts during the 1990s attempted to clarify the relationship between religion and state and negotiate power sharing and autonomy for the South and the sharing of oil wealth (which is located in the South). Fighting continued until 2002 when a ceasefire agreement between the government in Khartoum and the SPLM/A was signed, leading to the Comprehensive Peace Agreement in January This agreement set up a power sharing arrangement between Bashir and the SPLM/A, a timetable for elections and a referendum on independence for the South. 11 In recent years, this has been overshadowed by the conflict in the western region of Darfur, where Arab militia or janjaweed are accused of murdering African villagers with support from the military. The Sudanese Political System The current government of Sudan is part of a provisional power sharing arrangement pending national elections scheduled for The constitution describes Sudan as a decentralised, multi-cultural, multi-ethnic, multi-religious and multi-language state. 12 There is a separation of powers present (in name if not in practice) between the executive, legislature and judiciary. After almost half a century of fragmented civil war, the bureaucracy in Sudan is largely ineffective and corruption is endemic across all levels of government, the police and armed forces. Sudan is ranked 156 out of 163 nations for perceived levels of corruption. 13 Executive authority is held by the president who is also the 10 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs < at 8 July 2007, Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs < at 8 July 2007, Corruption Perceptions Index (2006) Transparency International < at 4 July 2007.

19 Comparative Analysis of South Sudanese Customary Law and Victorian Law prime minister and commander of the armed forces. The executive branch also includes a first vice president and a vice president. 14 The first vice president is selected by the SPLM/A and is currently Salva Kiir, as John Garang (the SPLM/A founder) died in a helicopter crash shortly after the peace agreement was signed. The legislature is comprised of two houses. The National Assembly is the lower house, with 450 appointed members allocated to particular groups based on a power sharing formula. The upper house, called the Council of States, is composed of two representatives from each of the 26 states. The judicial arm is composed of the High Court, Civil and Specialist Tribunals. Tribal and customary law plays a central role outside urban areas where the judiciary does not reach. Human Rights The Office of the High Commissioner of Human Rights asserts that human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. 15 Human rights are largely governed at an international level by international organisations such as the United Nations, the European Union and the African Union. When countries ratify treaties produced by these organisations, they are bound by them at an international level. When a treaty is ratified in Hu 14 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs < at 8 July 2007, 1.Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs < at 8 July 2007, Office of the High Commissioner for Human Rights, What are Human Rights? < WhatareHumanRights.aspx> at 10 January

20 The Sudanese Population of Victoria monist nations, it becomes enforceable. In dualist countries such as Australia and Sudan, treaties must be incorporated into domestic legislation in order to be enforceable. International Human Rights Instruments Both Australia and Sudan are signatories to the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention Relating to the Status of Refugees (Refugee Convention). These treaties contain comprehensive protections of fundamental rights such as the right to life, right to freedom of movement, freedom of speech, right to housing, right of access to a court, right to education, right to religious freedom, right to seek asylum and so on. Both Sudan and Australia are subject to enforcement mechanisms at the international level, but not necessarily at a domestic level, unless these rights have been incorporated into domestic legislation. 16 Most treaties require signatories to incorporate their provisions into domestic legislation. Human Rights Laws in Australia In comparison with most liberal democracies, Australia is unusual in that it does not have a formal bill of rights. 17 The Australian constitution refers expressly to only a number of civil and political rights such as trial by jury for indictable offences, religious freedom and free trade between states. However, the High Court has implied other rights into the constitution, such as freedom of political communication Flynn, Martin, Human Rights in Australia, Treaties, Statutes and Cases (1st ed, 2003), Flynn, Martin, Human Rights in Australia, Treaties, Statutes and Cases (1st ed, 2003),

21 Comparative Analysis of South Sudanese Customary Law and Victorian Law Federal legislation, such as Racial Discrimination Act 1975, Sex Discrimination Act 1984, Human Rights and Equal Opportunities Commission Act 1986 and Disability Discrimination Act 1992, as well as similar state acts, exist in order to comply with Australia s human rights obligations at a domestic level. 19 Human Rights Laws in Victoria Victoria has recently enacted the Charter of Human Rights and Responsibilities Act (Vic) The Charter focuses on civil and political rights and reflects many of the provisions of the ICCPR. As an act of parliament it does not have the same force as a constitutional bill of rights it is possible that the statute could be amended or revoked however it does require future laws to be interpreted in light of the Charter. If a law is proposed that does not comply then the drafter of that legislation would have to acknowledge within parliament an intention to make a law that breached the Charter. In addition, the policies and procedures of public authorities will have to comply with the Charter, enabling citizens to have their rights protected in the course of receiving public services. Individuals are not able to make a claim for breach of their rights under the Charter, 21 but if they are pursuing a legal issue in any jurisdiction then they can raise arguments concerning a breach of their fundamental rights. It will be some time before the impact of the Charter can be assessed. 18 Flynn, Martin, Human Rights in Australia, Treaties, Statutes and Cases (1st ed, 2003), 32, citing Lange v Australian Broadcasting Corporation (1997). 19 Flynn, Martin, Human Rights in Australia, Treaties, Statutes and Cases (1st ed, 2003), Human Rights Charter (2006) Department of Justice, Victoria < DOJ+Internet/Home/Your+Rights/Human+Rights/Human+Rights+Charter/> at 8 July Ibid. 15

22 The Sudanese Population of Victoria Human Rights Laws in Sudan From 13 December 1999, a state of emergency was declared in Sudan by President Bashir. 22 This allowed the suspension of many human rights for the period of the emergency without prior consent. 23 This has allowed, for example, Sudanese authorities to detain political opponents, or others considered a threat, indefinitely without trial. 24 This state of emergency, originally intended to last three months, was finally lifted in South Sudan in July 2005, some six years after it was declared. 25 This followed the signing of a peace agreement in January 2005 between the Sudanese Government and the SPLM/A. 26 As a part of this, the Power Sharing Protocol was signed in 2004, 27 obliging Sudan to fully comply with all international human rights treaties to which it is a signatory. 28 Current Situation for South Sudanese Victorians During half a century of war, the various governments of Sudan committed frequent violations of human rights by killing and torturing citizens, abducting people (including women and children), attacking villages 22 SUDAN: State of Emergency from official SUNA [ ] (1999) University of Pennsylvania African Studies < at 8 July Paragraph 1, Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 186 (2003). 24 Majtenyi, Cathy, Amnesty International Blasts Sudan s State of Emergency Law (2004) The Epoch Times, < at 8 July Sudan state of emergency lifted, (2005) BBC News, < at 8 July USAID Support to the Comprehensive Peace Plan (2005) USAid from the American people < at 8 July Sudan: North-South peace deal leaves future of human rights uncertain (2006) Sudan Tribune, < at 8 July Ibid, referring to provision 1.6 of the Power Sharing Protocol. 16

23 Comparative Analysis of South Sudanese Customary Law and Victorian Law and forcibly displacing millions. 29 A large percentage of the population was living day to day without any certainty about their future. 30 Many children were forced to become soldiers or were left to care for themselves. 31 Sexual harassment was not uncommon in refugee camps. 32 There is a commonplace distrust of police and the legal system among many South Sudanese Victorians, emanating in part from persecution experienced in their home country. 33 These experiences often have a bearing on relationships with police in Victoria, 34 as does a lack of awareness/sensitivity among some Victorian police members to the needs and experiences of South Sudanese Victorians, which will be discussed in further detail at later stage. Current Situation in Australia Australia s law enforcement mechanisms, as a general rule, are more effective and free from corruption. However, human rights protections are limited, especially when it comes to minority groups. Hence, the experience of South Sudanese Victorians, and other newly arrived migrants, can be vastly different from that of other Australian citizens. 29 Martin, Sarah, Apple, Betsy, Sudan: Human Rights Denied in the South, (2006), Refugees International < at 8 July Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, Aplin, S., Analysis of the Legal Needs of Horn of Africa People in Melbourne Pro Bono Fellowship Report, (2002) Sudanese Online Research Association < archive=&start_from=&ucat=38&> at 8 July Aplin, S., Analysis of the Legal Needs of Horn of Africa People in Melbourne Pro Bono Fellowship Report, (2002) Sudanese Online Research Association. < archive=&start_from=&ucat=38&> at 8 July

24 The Sudanese Population of Victoria Individuals arriving on humanitarian visas are eligible for the Integrated Humanitarian Settlement Strategy program which includes reception on arrival, assistance with accommodation on arrival as well as long-term accommodation, case coordination, information and referral, short-term torture and trauma counselling and language training. 35 The time allocated to training and assisting South Sudanese Victorians is identical to that for other newly arrived migrants; this approach categorises the needs of all migrants as being largely equal, with minimal capacity to cater for the specific needs and issues arising from their personal experiences. As the current experiences of individuals are in part a result of the customs and practices of their indigenous countries, awareness of these customs and practices in the development of induction programs may enable a smoother process of integration into Australia. Size of Population, Demographics, Family Structure Sudan is the largest geographical country in Africa. It borders Chad, the Central African Republic, the Democratic Republic of the Congo, Egypt, Eritrea, Ethiopia, Kenya, Libya and Uganda. Sudan itself is bisected by the Blue and White Niles which merge at the capital city Khartoum. 36 Its population of approximately 39 million is ethnically diverse with large numbers of separate tribal and ethnic groups and 400 separate languages identified. 37 Most of the population 35 Fact Sheet 66. Integrated Humanitarian Settlement Strategy (2007) Australian Government, Department of Immigration and Citizenship < at 8 July Lesch, A.M., Sudan: The Torn Country (1999) 98, Current History 628, Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, 6. 18

25 Comparative Analysis of South Sudanese Customary Law and Victorian Law broadly identify with two existing ethnic groups. The northern region is largely Arab and Muslim and accounts for approximately 31-35% of the population while the southern region is largely African in origin and accounts for roughly 61-65% of the population. 38 Up to 10% of the population is comprised of other smaller groups such as the Beja, a semi-nomadic tribe who are ethnically distinct from Africans and Arabs. 39 The predominant religions in the South are Christian and indigenous or animist beliefs. Due to the conflict in Sudan over the past half century, the population is highly mobile. This has made demographic data difficult to determine with any great accuracy. The official language in Sudan is Arabic due to the predominance of the largely Arab north, where the nation s capital is located. In the South, among educated Sudanese, English is used to conduct business. An Arabic dialect known as Juba Arabic is used at a more informal level. Most rural communities in the South use their own local language or dialect. 40 The northern states cover the majority of Sudan and include most of the urban centres. The majority of the population lives in rural areas, and this is especially true of the South. Due to the conflict in the South, urban areas have been growing rapidly, with Khartoum s population estimated at six to seven million, including an estimated two million internally displaced people from the southern region. 41 Eighty percent of Sudanese people are agriculturalists and farmers, who often struggle to find employment in urban settings. Those in urban areas work 38 Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, Sudanese Community Profile, above n 33, Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs < at 8 July 2007, 2. 19

26 The Sudanese Population of Victoria mostly in the public sector for local government, the police and armed forces. 42 South Sudanese Cultural and Tribal Groups Living in Victoria The vast majority of Sudanese refugees arriving in Australia are from the war-torn area of South Sudan. There are many tribes and indigenous groups that make up the people of South Sudan. They are referred to as Nilotic because they have their origin along the White Nile. The Nilotic tribes are Dinka, Nuer and Shilluk (Chollo). The other significant group of tribes are the Bantu including the Anuak, Murle, Bari, Kuku, Kakwa, Mandari and Didinga. The single largest tribal group in South is Dinka which makes up approximately 40% of the southern population. 43 These figures broadly correspond with the stated ethnicities of Sudanese migrants to Australia. However, it must be noted that these figures are imperfect due to the Department of Immigration and Citizenship (DIAC) not having individual statistical codes for all of Sudan s ethnic groups. The stated ethnicities of Sudanese migrants during were (figure 1): Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, Sudanese Community Profile (2007) Commonwealth of Australia < community-profile-sudan.pdf> at 8 July 2007, 8. 20

27 Comparative Analysis of South Sudanese Customary Law and Victorian Law Figure 1: Stated Ethnicities of Sudanese Born Entrants % 7% Not recorded/other 9% 43% 9% Nuer/Niver (Sudanese) 7% African (not defined) 9% Sudanese (not defined) 32% Dinka (Sudanese) 43% 32% Australian Bureau of Statistics (ABS) figures show that the Sudanese community is one of the fastest growing communities in Australia. During the past 10 years the number of migrants born in Sudan has increased by 34% each year. 45 Since , DIAC Settlement Database (SDB) figures show that approximately 20,000 Sudanese-born people have emigrated to Australia and that 36% of these have settled in Victoria. 46 The South Eastern Region Migrant Resource Centre figures show that out of the 7,538 arrivals in Victoria from , 2,698 or 36% have settled in the South Eastern Region, 85% of whom have arrived in the last five years. 47 Out of the total number of Sudanese immigrants to Australia, ABS figures indicate that 55% are male and 45% female. 48 The age profile of Sudanese migrants is also 45 Sudanese Community Profile (2007) Commonwealth of Australia < at 8 July 2007, Sudanese Community Profile (2007) Commonwealth of Australia < at 8 July 2007, Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, 15. The Sudanese community are highly mobile and these figures only indicate the point of origin in Victoria. 48 Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, 15, citing Australian Bureau of Statistics, 2001 Census,

28 11% 3% 2% 2% The Sudanese Population of Victoria broadly consistent with that of the Sudanese population generally, with 62% aged 24 years or younger. 49 Seventynine percent describe their English as nil or poor on arrival. The breakdown of main languages spoken by Sudanese arrivals is (figure 2): 50 Figure 2: Main Language of Sudan-born entrants ( ) 17% 15% Arabic 50% Dinka 17% African (not defined) 11% Middle Eastern (not defined) 3% Alcholi 2% Tigrinya 2% Others/unknown 15% 50% Eighty-three percent of Sudanese migrants identified with one of the various Christian denominations, 12% were Muslim and 5% identified with another religion, no religion or did not state a religious belief. 51 Thirty seven percent of Sudanese migrants to Australia came as single people and the Commonwealth Government profile on the Sudanese community suggests that they may still be part of a larger family group. Many of the Sudanese family groups arriving in Australia are large by Australian standards, which present particular problems related to housing and income support on arrival. Fifty-three percent are part of a family group of three or more (figure 3) Sudanese Community Profile (2007) Commonwealth of Australia < at 8 July 2007, Sudanese Community Profile (2007) Commonwealth of Australia < at 8 July 2007, Sudanese Community Profile (2007) Commonwealth of Australia < at 8 July 2007, Sudanese Community Profile (2007) Commonwealth of Australia < at 8 July 2007, 6.

29 Comparative Analysis of South Sudanese Customary Law and Victorian Law Figure 3: Family size of Sudan-born entrants ( ) 5% 6% 37% 10% 9% 12% 1 person: 37% 2 people: 10% 3 people: 11% 4 people: 12% 5 people: 10% 6 people: 9% 7 people: 5% 8 people: 6% 11% 10% Issues Particular to the South Sudanese Population Seventy percent of humanitarian entrants settling in Victoria at present are from African countries. Approximately half are children and young people. Many South Sudanese Victorians may have been separated from or experienced the death of parents and family members. 53 There are many difficulties facing South Sudanese Victorians who have come to Australia as refugees or under one of Australia s humanitarian programs. These issues revolve around the need to learn English, find housing, enrol in schools, find employment and adjust to a different culture. Long periods spent in refugee camps, 53 Education and Refugee Students from Southern Sudan (2005) The Victorian Foundation for Survivors of Torture Inc. < at 8 July 2007, 1. 23

30 The Sudanese Population of Victoria such as the Kakuma and Dadaab camps in Kenya or camps in Ethiopia, northern Uganda or within special accommodation at Cairo, 54 can have a significant impact on the personal development of young people and many will have had little access to education. In South Sudan, 1% of girls and 2% of all children complete primary school. Adult female literacy in South Sudan is 12% and overall adult literacy is 24%. This is compared to a literacy rate of 99.8% in Australia. 55 The 2005 UN Joint Assessment mission for Sudan reported that Sudan had the lowest access to primary education in the world. 56 A large proportion of South Sudanese Victorians come to Australia via the Kakuma camp in northern Kenya which houses 80,000 people in an area with barely enough resources to provide subsistence living for the local population. The residents of the camp are dependent on food aid. Limited resources mean that the quality of food and services is poor. Experiences in the camps can lead to a state of trauma for individuals, which can translate into social dislocation, grief and loss, insecurity and fear, post-traumatic stress disorder, depression, acute stress disorder and other illnesses. 57 Many suffer from malnutrition and disease and violence is frequent, as is sexual assault. 58 This scarcity of resources can lead to survival behaviour, assertive behaviour and an over reliance on services, all of which continue upon arrival in a new country Sudanese Community Profile (2007) Commonwealth of Australia < at 8 July 2007, Education and Refugee Students from Southern Sudan (2005) The Victorian Foundation for Survivors of Torture Inc. < at 8 July 2007, Education and Refugee Students from Southern Sudan (2005) The Victorian Foundation for Survivors of Torture Inc. < at 8 July 2007, Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, Sudanese Community Profile (2007) Commonwealth of Australia < at 8 July 2007, Collopy, B. and Langley, E. (eds) Sudanese in South East Melbourne: Perspectives of a New and Emerging Community (2007), Produced by South Eastern Region Migrant Resource Centre, 8.

31 Comparative Analysis of South Sudanese Customary Law and Victorian Law Newly arrived refugees need assistance in gaining training for employment, as many are unskilled, especially those who have been long-term residents of the camps. Some children are unfamiliar with formal schooling and those who are literate may only be familiar with the Arabic rather than Roman alphabet. 60 The integration of original cultural and family customs in a new country can be difficult for new migrants. Traditional Sudanese age and gender roles are challenged by the common need for women to work as well as men, in order to support families. Friction may exist within families due to differing paces of learning language and gaining employment, and a greater sense of freedom can cause young people to come into conflict with elders. Adjusting to an urban lifestyle can also be a challenge for the 80% of South Sudanese who previously lived and worked in rural areas. Finally, accessing income and community support services can be difficult for new South Sudanese Victorians who have had no experience dealing with such agencies. 61 Housing The Refugee Council of Australia report identified the expectations of those coming to Australia as an issue. Humanitarian entrants spoke of being shown films of brick houses with all new appliances. 62 Many newcomers, including South Sudanese, found that the reality often 60 Sudanese Community Profile (2007) Commonwealth of Australia < at 8 July 2007, Sudanese Community Profile (2007) Commonwealth of Australia < at 8 July 2007, Australia s Refugee and Special Humanitarian Program, Current Issues and Future Directions: Views from the Community Sector, (2006) Refugee Council of Australia < Submission%20Final%20Document.pdf> at 8 July 2007,