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Comparative Analysis of South Sudanese Customary Law and Victorian Law

COMPARATIVE ANALYSIS OF SOUTH SUDANESE CUSTOMARY LAW AND VICTORIAN LAW

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. 2008

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.


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:

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 2006-08

For more information contact:

Dave Taylor

Community Development Worker

Springvale Monash Legal Service Inc.

p (03) 9562 3144

e [email protected]

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

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

executive SuMMAry .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

MethodoLogy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Contents

Contents


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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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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 . . . . . . . . . . . . . . . . . . . . . .


Family Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Justice System and Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Driving / Road Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Consumer Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Substance Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


gLoSSAry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

BiBLiogrAPhy .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Contents


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

Foreward by Matthew Albert

1

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 AlbertOverseeing Coordinator and FounderSudanese Australian Integrated Learning (SAIL) Program

Foreward

2


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

Executive Summary

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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.

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

Executive Summary

4


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.

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

Introduction

1 Commonwealth of Australia, Sudanese Community Profile (2007) <http://www.immi.gov.au/living-in-australia/delivering-assistance/government-programs/settlement-planning/_pdf/community-profile-sudan.pdf> at 8 July 2007.

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, 150-162, 151; Coffey, Margaret ‘Life in Transit; the experiences of Sudanese refugees arriving in Australia’ (2004) Sudanese Online Research Association <http://sora.akm.net.au/publish.php?subaction=showfull&id=1100194204&archive=&start_from=&ucat=38& at 8 July 2007.<http://sora.akm.net.au/publish.php?subaction=showfull&id=1100194204&archive=&start_from=&ucat=38& at 8 July 2007.

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, 219.6 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 3.7 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> 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, 8.10 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 3..11 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, 9.12 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 1.13 Corruption Perceptions Index (2006) Transparency International <http://www.transparency.org/policy_research/surveys_indices/cpi/2006> at 4 July 2007.14 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 1.Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 1.15 Office of the High Commissioner for Human Rights, What are Human Rights? <http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx> at 10 January 2008.16 Flynn, Martin, Human Rights in Australia, Treaties, Statutes and Cases (1st ed, 2003), 32.17 Flynn, Martin, Human Rights in Australia, Treaties, Statutes and Cases (1st ed, 2003), 32.18 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), 279.20 Human Rights Charter (2006) Department of Justice, Victoria <http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/Your+Rights/Human+Rights/Human+Rights+Charter/> at 8 July 2007.21 Ibid.22 SUDAN: State of Emergency from official SUNA [19991214] (1999) University of Pennsylvania – African Studies <http://www.africa.upenn.edu/Hornet/irin-121499.html> at 8 July 2007.23Paragraph 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, <http://en.epochtimes.com/news/4-12-22/25163.html> at 8 July 2007. 25 Sudan state of emergency lifted, (2005) BBC News, <http://news.bbc.co.uk/2/hi/africa/4670231.stm.> at 8 July 2007.26USAID Support to the Comprehensive Peace Plan (2005) USAid from the American people <http://www.usaid.gov/locations/sub-saharan_africa/sudan/countryprofile.html> at 8 July 2007.27 Sudan: North-South peace deal leaves future of human rights uncertain (2006) Sudan Tribune, <http://www.sudantribune.com/spip.php?article7409> at 8 July 2007.28 Ibid, referring to provision 1.6 of the Power Sharing Protocol.29 Martin, Sarah, Apple, Betsy, Sudan: Human Rights Denied in the South, (2006), Refugees International <http://www.refugeesinternational.org/content/article/detail/8528> at 8 July 2007.30 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, 41.31 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, 41.32 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, 41.33 Aplin, S., Analysis of the Legal Needs of Horn of Africa People in Melbourne Pro Bono Fellowship Report, (2002) Sudanese Online Research Association <http://sora.akm.net.au/publish.php?subaction=showfull&id=1066924977&archive=&start_from=&ucat=38&> at 8 July 2007.34 Aplin, S., Analysis of the Legal Needs of Horn of Africa People in Melbourne Pro Bono Fellowship Report, (2002) Sudanese Online Research Association.<http://sora.akm.net.au/publish.php?subaction=showfull&id=1066924977&archive=&start_from=&ucat=38&> at 8 July 2007.35 Fact Sheet 66. Integrated Humanitarian Settlement Strategy (2007) Australian Government, Department of Immigration and Citizenship <http://www.immi.gov.au/media/fact-sheets/66ihss.htm> at 8 July 2007.36 Lesch, A.M., ‘Sudan: The Torn Country’ (1999) 98, Current History 628, 218.37 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, 6.38 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, 7.39 Sudanese Community Profile, above n 33, 14.40 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, 7.41 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 2.42 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, 6.43 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, 7.44 Sudanese Community Profile (2007) Commonwealth of Australia<http://www.immi.gov.au/living-in-australia/delivering-assistance/government-programs/settlement-planning/_pdf/community-profile-sudan.pdf> at 8 July 2007, 8.45 Sudanese Community Profile (2007) Commonwealth of Australia<http://www.immi.gov.au/living-in-australia/delivering-assistance/government-programs/settlement-planning/_pdf/community-profile-sudan.pdf> at 8 July 2007, 4.46 Sudanese Community Profile (2007) Commonwealth of Australia<http://www.immi.gov.au/living-in-australia/delivering-assistance/government-programs/settlement-planning/_pdf/community-profile-sudan.pdf> at 8 July 2007, 5.47 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, 2001 49 Sudanese Community Profile (2007) Commonwealth of Australia<http://www.immi.gov.au/living-in-australia/delivering-assistance/government-programs/settlement-planning/_pdf/community-profile-sudan.pdf> at 8 July 2007, 7.50 Sudanese Community Profile (2007) Commonwealth of Australia<http://www.immi.gov.au/living-in-australia/delivering-assistance/government-programs/settlement-planning/_pdf/community-profile-sudan.pdf> at 8 July 2007, 7.51 Sudanese Community Profile (2007) Commonwealth of Australia<http://www.immi.gov.au/living-in-australia/delivering-assistance/government-programs/settlement-planning/_pdf/community-profile-sudan.pdf> at 8 July 2007, 7.52 Sudanese Community Profile (2007) Commonwealth of Australia<http://www.immi.gov.au/living-in-australia/delivering-assistance/government-programs/settlement-planning/_pdf/community-profile-sudan.pdf> at 8 July 2007, 6.53 Education and Refugee Students from Southern Sudan (2005) The Victorian Foundation for Survivors of Torture Inc. <http://www.survivorsvic.org.au/publications.php> at 8 July 2007, 1.54 Sudanese Community Profile (2007) Commonwealth of Australia<http://www.immi.gov.au/living-in-australia/delivering-assistance/government-programs/settlement-planning/_pdf/community-profile-sudan.pdf> at 8 July 2007, 9.55 Education and Refugee Students from Southern Sudan (2005) The Victorian Foundation for Survivors of Torture Inc. <http://www.survivorsvic.org.au/publications.php> at 8 July 2007, 1.56 Education and Refugee Students from Southern Sudan (2005) The Victorian Foundation for Survivors of Torture Inc. <http://www.survivorsvic.org.au/publications.php> at 8 July 2007, 2.

1 Commonwealth of Australia, Sudanese Community Profile (2007) <http://www.immi.gov.au/living-in-australia/delivering-assistance/government-programs/settlement-planning/_pdf/community- profile-sudan.pdf> at 8 July 2007.

5

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:

•alackofunderstandingandconfidencewhen 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, 150-162, 151; Coffey, Margaret ‘Life in Transit; the experiences of Sudanese refugees arriving in Australia’ (2004) Sudanese Online Research Association <http://sora.akm.net.au/publish.php?subaction=showfull&id=1100194204&archive= &start_from=&ucat=38& at 8 July 2007.

Introduction

6


•difficultiesinrelationtoAustralianlawrelated to the family and family violence;

•compliancewithlawsandregulationsrelatedto driving, licensing and public transport; and

•alackoffamiliaritywithcommonconsumer transactions such as real estate, utilities, contracts and banking and credit.

7

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.

Methodology

Methodology

8


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

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.


5 Lesch, A.M., ‘Sudan: The Torn Country’ (1999) 98, Current History, 219.

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 1820-21. 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 1956. This marked the start of a civil war that continued for all but 11 years up to 2005. The original constitution was silent on two

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 1986. 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 1989.9 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 1996. Conflict during this period claimed an estimated two million lives and led to four million

The Sudanese Population of Victoria


10


6 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 3.




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 1820-21. 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 1956. This marked the start of a civil war that continued for all but 11 years up to 2005. The original constitution was silent on two

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 1986. 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 1989.9 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 1996. Conflict during this period claimed an estimated two million lives and led to four million

205 Springvale Monash Legal Service Inc., Focus Group 5 (2007.206 Springvale Monash Legal Service Inc., Focus Group 3 (2006).207 Springvale Monash Legal Service Inc., Focus Group 3 (2006) and Focus group 5 (2007).208 Springvale Monash Legal Service Inc., Consultation 1 (2006), Consultation 3 (2006) and Consultation 13 (2007).209 Springvale Monash Legal Service Inc. Consultation 6 (2006).210 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, 35.211 Springvale Monash Legal Service Inc., Focus Group 1 (2006).212 Springvale Monash Legal Service Inc., Focus Group 3 (2006).213 Springvale Monash Legal Service Inc., Focus Group 3 (2006) and Focus Group 5 (2007).214 Springvale Monash Legal Service Inc., Focus Group 5 (2007).215 Springvale Monash Legal Service Inc., Focus Group 5 (2007).216 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, 40.217 Masanauskas, J., ‘Driving Refugee Safety’, The Herald-Sun (Melbourne) 6 January 2007. 218 Springvale Monash Legal Service Inc., Focus Group 5 (2007).219 Springvale Monash Legal Service Inc. Focus Group 1 (2006) and Focus Group 3 (2006).220 Springvale Monash Legal Service Inc. Focus Group 1 (2006) and Focus Group 2 (2006).221 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, 35.222 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, 35, Springvale Monash Legal Service Inc., Consultation 8 (2006) and Focus Group 1 (2006).223 Masanauskas, J., ‘Crime Trend a Concern’, The Herald Sun, 2 November 2005.224 Springvale Monash Legal Service Inc. Focus Group 1 (2006) and Focus Group 4 (2007).225 Springvale Monash Legal Service Inc., Focus Group 3 (2006).226 Springvale Monash Legal Service Inc., Focus Group 2 (2006).227 Springvale Monash Legal Service Inc., Focus Group 2 (2006).228 Springvale Monash Legal Service Inc., Focus Group 2 (2006).229 Springvale Monash Legal Service Inc., Consultation 4 (2006) and Consultation 5 (2006).230 Springvale Monash Legal Service Inc., Focus Group 1 (2006).231 Springvale Monash Legal Service Inc., Focus Group 3 (2006).232 Springvale Monash Legal Service Inc., Consultation 14 (2007) and Consultation 15 (2007).233 Springvale Monash Legal Service Inc., Consultation 15 (2007).234 Springvale Monash Legal Service Inc., Consultation 15 (2007).235 Johnson, Douglas (ed.), Governing the Nuer: Documents by Percy Coriat on Nuer History and Ethnography 1922-1931, (1993), 29.236 Johnson, Douglas (ed.), Governing the Nuer: Documents by Percy Coriat on Nuer History and Ethnography 1922-1931, (1993), 386.237 Springvale Monash Legal Service Inc., Focus Group 1 (2006), Focus Group 3 (2006) and Consultation 15 (2007).238 Springvale Monash Legal Service Inc., Consultation 14 (2007).239 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, 29.240 Springvale Monash Legal Service Inc., Focus Group 3 (2006).241 Springvale Monash Legal Service Inc., Consultation 14 (2007), Consultation 15 (2007) and Focus Group 1 (2006).242 Springvale Monash Legal Service Inc., Focus Group 1 (2006).243 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, 29.244 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, 29, Springvale Monash Legal Service Inc., Consultation 1 (2006).245 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, 29 and Springvale Monash Legal Service Inc., Consultation 1 (2006).246 Springvale Monash Legal Service Inc., Focus Group 1 (2006), Focus Group 3 (2006) and Consultation 16 (2007).247 Tartter, Jean R in Helen Capin Metz (ed) Sudan: A Country Study (4th ed, 1991), 274.248 Tartter, Jean R in Helen Capin Metz (ed) Sudan: A Country Study (4th ed, 1991), 274. 249 Springvale Monash Legal Service Inc., Focus Group 2 (2006).250 Springvale Monash Legal Service Inc., Focus Group 2 (2006) and Focus Group 4 (2007).251 Springvale Monash Legal Service Inc., Focus Group 3 (2006)252 Springvale Monash Legal Service Inc., Focus Group 4 (2007)253 Marshall, M., ‘No tribal gangs: Police’, Oakleigh Monash Leader/Springvale Dandenong Leader (Melbourne), 17 January 2007.254 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, 41.255 City of Greater Dandenong, Social Profiles: Sudanese Residents, <http://www.greaterdandenong.com/Resources/SiteDocuments/doc36096.pdf> at 7 November 2007.256 ‘Officers see first-hand poverty in Sudan’, Oakleigh Monash/Springvale Dandenong Leader (Melbourne) 6 June 2007; Collins, S., ‘Africa trip to help plug gaps between refugees, police’, The Age (Melbourne) 11 April 2007.257 Presentation by Michael Hennessey, South Sudan Development Agency, (held at the South Eastern Region Migrant Resource Centre, Melbourne), 13 June 2007.

11

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 2005. 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 2009. 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

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

14 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 1.Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 1.

15 Office of the High Commissioner for Human Rights, What are Human Rights? <http://www.ohchr.org/EN/Issues/Pages/ WhatareHumanRights.aspx> at 10 January 2008.

10 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 3..



13 Corruption Perceptions Index (2006) Transparency International <http://www.transparency.org/policy_research/surveys_indices/cpi/2006> at 4 July 2007.


12


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 2005. 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 2009. 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

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

14 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 1.Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 1.

15 Office of the High Commissioner for Human Rights, What are Human Rights? <http://www.ohchr.org/EN/Issues/Pages/ WhatareHumanRights.aspx> at 10 January 2008.

10 Background Note: Sudan (2007) US Dept. of State: Bureau of African Affairs <http://www.state.gov/r/pa/ei/bgn/5424.htm> at 8 July 2007, 3..



13 Corruption Perceptions Index (2006) Transparency International <http://www.transparency.org/policy_research/surveys_indices/cpi/2006> at 4 July 2007.

Human Rights - monist??

13

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.18

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) 2006.20 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), 279.

20 Human Rights Charter (2006) Department of Justice, Victoria <http://www.justice.vic.gov.au/wps/wcm/connect/ DOJ+Internet/Home/Your+Rights/Human+Rights/Human+Rights+Charter/> at 8 July 2007.

21 Ibid.




14


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.18

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) 2006.20 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).


20 Human Rights Charter (2006) Department of Justice, Victoria <http://www.justice.vic.gov.au/wps/wcm/connect/ DOJ+Internet/Home/Your+Rights/Human+Rights/Human+Rights+Charter/> at 8 July 2007.

21 Ibid.



15

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

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 <http://www.refugeesinternational.org/content/article/detail/8528> at 8 July 2007.




33 Aplin, S., Analysis of the Legal Needs of Horn of Africa People in Melbourne Pro Bono Fellowship Report, (2002) Sudanese Online Research Association <http://sora.akm.net.au/publish.php?subaction=showfull&id=1066924977& archive=&start_from=&ucat=38&> at 8 July 2007.

34 Aplin, S., Analysis of the Legal Needs of Horn of Africa People in Melbourne Pro Bono Fellowship Report, (2002) Sudanese Online Research Association. <http://sora.akm.net.au/publish.php?subaction=showfull&id=1066924977& archive=&start_from=&ucat=38&> at 8 July 2007.

22 SUDAN: State of Emergency from official SUNA [19991214] (1999) University of Pennsylvania – African Studies <http://www.africa.upenn.edu/Hornet/irin-121499.html> at 8 July 2007.

23 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, <http://en.epochtimes.com/news/4-12-22/25163.html> at 8 July 2007.

25 Sudan state of emergency lifted, (2005) BBC News, <http://news.bbc.co.uk/2/hi/africa/4670231.stm.> at 8 July 2007.

26 USAID Support to the Comprehensive Peace Plan (2005) USAid from the American people <http://www.usaid.gov/locations/sub-saharan_africa/sudan/countryprofile.html> at 8 July 2007.

27 Sudan: North-South peace deal leaves future of human rights uncertain (2006) Sudan Tribune, <http://www.sudantribune.com/spip.php?article7409> at 8 July 2007.

28 Ibid, referring to provision 1.6 of the Power Sharing Protocol.


16


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

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 <http://www.refugeesinternational.org/content/article/detail/8528> at 8 July 2007.




33 Aplin, S., Analysis of the Legal Needs of Horn of Africa People in Melbourne Pro Bono Fellowship Report, (2002) Sudanese Online Research Association <http://sora.akm.net.au/publish.php?subaction=showfull&id=1066924977& archive=&start_from=&ucat=38&> at 8 July 2007.

34 Aplin, S., Analysis of the Legal Needs of Horn of Africa People in Melbourne Pro Bono Fellowship Report, (2002) Sudanese Online Research Association. <http://sora.akm.net.au/publish.php?subaction=showfull&id=1066924977& archive=&start_from=&ucat=38&> at 8 July 2007.

22 SUDAN: State of Emergency from official SUNA [19991214] (1999) University of Pennsylvania – African Studies <http://www.africa.upenn.edu/Hornet/irin-121499.html> at 8 July 2007.

23 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, <http://en.epochtimes.com/news/4-12-22/25163.html> at 8 July 2007.

25 Sudan state of emergency lifted, (2005) BBC News, <http://news.bbc.co.uk/2/hi/africa/4670231.stm.> at 8 July 2007.

26 USAID Support to the Comprehensive Peace Plan (2005) USAid from the American people <http://www.usaid.gov/locations/sub-saharan_africa/sudan/countryprofile.html> at 8 July 2007.

27 Sudan: North-South peace deal leaves future of human rights uncertain (2006) Sudan Tribune, <http://www.sudantribune.com/spip.php?article7409> at 8 July 2007.

28 Ibid, referring to provision 1.6 of the Power Sharing Protocol.

17

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

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

35 Fact Sheet 66. Integrated Humanitarian Settlement Strategy (2007) Australian Government, Department of Immigration and Citizenship <http://www.immi.gov.au/media/fact-sheets/66ihss.htm> at 8 July 2007.

36 Lesch, A.M., ‘Sudan: The Torn Country’ (1999) 98, Current History 628, 218.



18


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

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


39 Sudanese Community Profile, above n 33, 14.



19

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 2001-06 were (figure 1):44

45 Sudanese Community Profile (2007) Commonwealth of Australia <http://www.immi.gov.au/living-in-australia/delivering- assistance/government-programs/settlement-planning/_pdf/community-profile-sudan.pdf> at 8 July 2007, 4.


47 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, 2001



44 Sudanese Community Profile (2007) Commonwealth of Australia <http://www.immi.gov.au/living-in-australia/delivering-assistance/government-programs/settlement-planning/_pdf/ community-profile-sudan.pdf> at 8 July 2007, 8.


20


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 1996-97, 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 1996-2006, 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



47 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, 2001



44 Sudanese Community Profile (2007) Commonwealth of Australia <http://www.immi.gov.au/living-in-australia/delivering-assistance/government-programs/settlement-planning/_pdf/ community-profile-sudan.pdf> at 8 July 2007, 8.

Not recorded/other 9%

Nuer/Niver (Sudanese) 7%

African (not defined) 9%

Sudanese (not defined) 32%

Dinka (Sudanese) 43%

Figure 1: Stated ethnicities of Sudanese Born entrants 2001-06

9%

7%

9%

32%

43%

21

broadly consistent with that of the Sudanese population generally, with 62% aged 24 years or younger.49 Seventy-nine percent describe their English as nil or poor on arrival. The breakdown of main languages spoken by Sudanese arrivals is (figure 2):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).52





Figure 2: Main Language of Sudan-born entrants (2001-06)

Arabic 50%

Dinka 17%


Middle Eastern (not defined) 3%

Alcholi 2%

Tigrinya 2%

Others/unknown 15%

17%

11% 3% 2%2%

15%

50%


22


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. <http:// www.survivorsvic.org.au/publications.php> at 8 July 2007, 1.

Figure 3: Family size of Sudan-born entrants (2001-06)

Arabic 50%

Dinka 17%


Middle Eastern (not defined) 3%

Alcholi 2%

Tigrinya 2%

Others/unknown 15%

1 person: 37%

2 people: 10%

3 people: 11%

4 people: 12%

5 people: 10%

6 people: 9%

7 people: 5%

8 people: 6%

37%

10%11%

12%

10%

9%

5%6%

23

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.59

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





58 Sudanese Community Profile (2007) Commonwealth of Australia <http://www.immi.gov.au/living-in-australia/delivering- assistance/government-programs/settlement-planning/_pdf/community-profile-sudan.pdf> at 8 July 2007, 9-10.



24


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.59

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


61 Sudanese Community Profile (2007) Commonwealth of Australia <http://www.immi.gov.au/living-in-australia/delivering- assistance/government-programs/settlement-planning/_pdf/community-profile-sudan.pdf> at 8 July 2007, 9-10.

62 Australia’s Refugee and Special Humanitarian Program, Current Issues and Future Directions: Views from the Community Sector, (2006) Refugee Council of Australia < http://www.refugeecouncil.org.au/docs/current/2007-2008%20Intake%20 Submission%20Final%20Document.pdf> at 8 July 2007, 51.

25

varied from their expectations. South Sudanese Victorians often face difficulties buying, selling and renting property or motor cars. Real estate concepts that apply in Victoria are not necessarily widely known amongst new arrivals.63 Examples provided by those who have dealt with new arrivals in relation to property were related to the collection of rent. Instances of rent being collected at gunpoint in the individual’s former country illustrate the difference in regulation of property in Australia compared with Sudan.64 Other problems faced include a lack of awareness regarding a ‘bond’. Language can also be a significant barrier for newly arrived South Sudanese Victorians when finding housing. Often they will pretend to understand more than they do out of embarrassment; it is therefore good practice to utilise an interpreter.65 Many South Sudanese families arriving in Victoria are larger than the typical Australian family and this can present obstacles to finding suitable housing. Further, South Sudanese Victorians often have no rent history, so may find it difficult to rent a property which others, with a rent history, are applying for.

Family Structure

Also posing a problem for South Sudanese Victorians are cultural differences in relation to gender and the family. Children and women are said to have more freedom in Australia and this can create conflict within a family. Some South Sudanese Victorians have expressed the view that the different roles in Australia are difficult to get used to.66 Others feel that children have a tendency to abuse their

newfound freedom. Others expressed the view that family law in Australia is ‘ruining Sudanese customary law’,67 and therefore their family values. They stated that upon arrival many South Sudanese women and children ‘learn’ they have rights against mistreatment by their spouse or father and ring the police whenever their husband or father tries to discipline them. The ability to receive money from Centrelink was also cited for removing reliance on the husband or father and undermining his role as head of the family. Some South Sudanese Victorians are said to have left Australia because of the effect on their families.68

health

Health issues can be a significant factor in the settlement experience. Health services in the refugee camps are poor. Common health concerns for people from a refugee background are poor mental health, nutritional deficiencies, poor dental health and infectious, chronic and communicable diseases.69 Tuberculosis, HIV, poor eyesight, diabetes and high blood pressure occur among those who have spent significant time in refugee camps.70 Most South Sudanese Victorians will be unfamiliar with western medicine and may be uncomfortable sharing health issues with a stranger or being treated by a doctor of the opposite sex. Concepts such as counselling, post traumatic stress disorder and anxiety do not have a cultural equivalent for South Sudanese Victorians, as ‘mental health’ is a developed world concept.71 Some service providers have identified the transition from the diet found in South Sudan and in refugee

63 Springvale Monash Legal Service Inc., Consultation 14 (2006).



66 Springvale Monash Legal Service Inc., Focus Group 1 (2006).


26


varied from their expectations. South Sudanese Victorians often face difficulties buying, selling and renting property or motor cars. Real estate concepts that apply in Victoria are not necessarily widely known amongst new arrivals.63 Examples provided by those who have dealt with new arrivals in relation to property were related to the collection of rent. Instances of rent being collected at gunpoint in the individual’s former country illustrate the difference in regulation of property in Australia compared with Sudan.64 Other problems faced include a lack of awareness regarding a ‘bond’. Language can also be a significant barrier for newly arrived South Sudanese Victorians when finding housing. Often they will pretend to understand more than they do out of embarrassment; it is therefore good practice to utilise an interpreter.65 Many South Sudanese families arriving in Victoria are larger than the typical Australian family and this can present obstacles to finding suitable housing. Further, South Sudanese Victorians often have no rent history, so may find it difficult to rent a property which others, with a rent history, are applying for.

Family Structure

Also posing a problem for South Sudanese Victorians are cultural differences in relation to gender and the family. Children and women are said to have more freedom in Australia and this can create conflict within a family. Some South Sudanese Victorians have expressed the view that the different roles in Australia are difficult to get used to.66 Others feel that children have a tendency to abuse their

newfound freedom. Others expressed the view that family law in Australia is ‘ruining Sudanese customary law’,67 and therefore their family values. They stated that upon arrival many South Sudanese women and children ‘learn’ they have rights against mistreatment by their spouse or father and ring the police whenever their husband or father tries to discipline them. The ability to receive money from Centrelink was also cited for removing reliance on the husband or father and undermining his role as head of the family. Some South Sudanese Victorians are said to have left Australia because of the effect on their families.68

health

Health issues can be a significant factor in the settlement experience. Health services in the refugee camps are poor. Common health concerns for people from a refugee background are poor mental health, nutritional deficiencies, poor dental health and infectious, chronic and communicable diseases.69 Tuberculosis, HIV, poor eyesight, diabetes and high blood pressure occur among those who have spent significant time in refugee camps.70 Most South Sudanese Victorians will be unfamiliar with western medicine and may be uncomfortable sharing health issues with a stranger or being treated by a doctor of the opposite sex. Concepts such as counselling, post traumatic stress disorder and anxiety do not have a cultural equivalent for South Sudanese Victorians, as ‘mental health’ is a developed world concept.71 Some service providers have identified the transition from the diet found in South Sudan and in refugee






27

camps to the ‘Australian’ diet as an issue. Teachers have reported packet foods such as potato chips and cola drinks as ‘staple school lunches [provided] by some parents of Sudanese children.’72 Similar difficulties are faced accessing both health and other community services and knowledge of the health system varies between Sudanese families.

Financial Pressure

The financial pressures on newly arrived South Sudanese migrants to Victoria can be immense. Difficulties finding a source of income can be compounded by a lack of understanding of the financial aspects of everyday life. The economy of Sudan is primarily cash-based. Refugee camps are largely finance free and rely on a ration system. Newly arrived South Sudanese Victorians have little understanding of ATMs, rental bonds, credit and finance contracts. Those consulted stated that in South Sudan there is little or no experience with utility bills such as phone, water or electricity and that all transactions are conducted in cash. Most have not previously dealt with a bank. As English is often a second or third language, many do not understand contracts that they enter into. When payments cannot be made on time, this leads to more fees and fines.73

Over the past five years, 74% of all Sudanese humanitarian entrants have come to Australia under the Special Humanitarian Program and hold a subclass 202 visa.74 Arrivals under this program are sponsored by a friend or family member and are usually settled close to their proposer. Holders of a 202 visa have more limited access to settlement services than those who arrive as refugees;


73 Springvale Monash Legal Service Inc. Focus Group 1 (2006).



28


the latter, arriving on either 200 or 204 visas, have some costs covered, including airfares, and receive general welfare assistance, such as initial accommodation expenses. However, holders of a 202 visa are responsible for the cost of airfares — which can amount to thousands of dollars — and often borrow money in order to pay.75 In addition, there is generally an expectation on those who have made it to Australia to send money back to relatives still in Sudan or refugee camps. Many will often make sacrifices in Australia in order to keep sending money home. Interviewees stated that those back home often had an unrealistic picture of the level of prosperity of those in Australia.76

Perceptions in South east Melbourne

In a recent article, the Mayor of Greater Dandenong criticised the Federal Government for ‘failing Sudanese refugees.’77 He cited employment, housing, learning English and employment training as issues that were being under-serviced by the Federal Government. He said that police and Sudanese community leaders blame unemployment as a cause for the antisocial behaviour of some young Sudanese in Noble Park. Criticism was directed primarily at the settlement services provided by DIAC. The only minimal opportunity to learn English was a central concern.

These issues cannot be viewed in isolation from one another. Attending to a single social issue effectively requires awareness of the implications of this issue in other areas of social life. For example, limited English skills may result in low salaried employment or even unemployment, resulting in minimal income, and subsequently inconsistent



77 Marshal, M., ‘Mayor: Refugees Ignored’, Dandenong Leader (Melbourne), 2 April 2007, 1.

29

accommodation, perhaps culminating in homelessness. This can cause serious issues within the family and with schooling. Whilst government can prescribe various policies which aim at dealing with discrete issues, such as, for example, intensified policing to deal with perceived civic unrest in suburb, Noble Park, the greater number of social issues will remain untreated. Indeed, it is possible that some of these responses may lead to further harm in other areas. For example, increased policing and media attention of South Sudanese youth introduces a perception of danger which can induce racial discrimination amongst the greater local population. This will result in a lack of social cohesiveness amongst the local community, discrimination, alienation and further fear and unrest. We would encourage a holistic, informed and consultative approach to the development of policy rather than examination of individual areas in isolation.

78 Woodman G.R., ‘Some Realism About Customary Law – The West African Experience’, in Woodman G.R. and Obilade A.O.(eds), African Law and Legal Theory, (1st ed, 1995), 168.

79 Akechak, A., Leitch, R. and Vandewint, C. A Study of Customary Law in Contemporary Southern Sudan, (2004) World Vision International and the South Secretariat of Legal and Constitutional Affairs <http://www.gurtong.org ResourceCenter/laws/Customary%20Law%20Overview%20in%20South%20Sudan%20March%202004_compressed. doc> at 31 July 2007, 12.

80 Akechak, A., Leitch, R. and Vandewint, C. A Study of Customary Law in Contemporary Southern Sudan, (2004) World Vision International and the South Secretariat of Legal and Constitutional Affairs 11.

81 Watson A., ‘An Approach to Customary Law’, in Dundes Renteln A. and Dundes A. (eds) Folk Law: Essays in the Theory and Practice of Lex Non Scripta: Volume 1, (1st ed, 1994), 149.


30


the concept of customary Law

The concept of customary law is elusive and defies an authoritative definition. However, it is generally accepted that customary law is a set of customs or rules that reflect a certain community’s beliefs, habits and values, a ‘mirror of accepted usage’.78 Four sources of customary law are often recognised:

1) repeated practise of a custom or tradition at a community level;

2) binding or persuasive decisions from courts (both customary and statutory) on customary law issues;

3) religious beliefs; and

4) moral principles.79

Customary law is as much social convention as it is legal protocol.80 The way that customary law is recorded is also significantly different from codified, statute or precedent-based systems, such as exists in Australia.

Customary law generally exists in an informal, unwritten form that is passed down orally through generations. In communities where customary law is practised, ‘there is relatively little demand for a precise knowledge of the legal rules of a customary system.’81 Most members of a

78 Woodman G.R., ‘Some Realism About Customary Law – The West African Experience’, in Woodman G.R. and Obilade A.O.(eds), African Law and Legal Theory, (1st ed, 1995), 168.

79 Akechak, A., Leitch, R. and Vandewint, C. A Study of Customary Law in Contemporary Southern Sudan, (2004) World Vision International and the South Secretariat of Legal and Constitutional Affairs <http://www.gurtong.org ResourceCenter/laws/Customary%20Law%20Overview%20in%20South%20Sudan%20March%202004_compressed. doc> at 31 July 2007, 12.

80 Akechak, A., Leitch, R. and Vandewint, C. A Study of Customary Law in Contemporary Southern Sudan, (2004) World Vision International and the South Secretariat of Legal and Constitutional Affairs 11.


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31

community would be fully aware of their customary social and legal obligations, as they form part of everyday life.However, the effect of modernisation, globalisation and increased contact with foreign nations has resulted in many communities attempting to ‘modernise’ their customary law. Elias (who was once Federal Attorney General and Commissioner for Justice for Nigeria) confirms the effect of these influences, writing that with unwritten customary law ‘uncertainty and confusion are bound to arise, particularly as what used to be a compact and homogenous community… becomes increasingly diverse and heterogeneous’.82 Accordingly, there have been both internal and external attempts to formally record and document many customary law systems throughout the world.

In the majority of cases, it is people from outside these communities who have taken on the challenge of documenting customary law. A notable example was the University of London’s Restatement of African Customary Law project launched in 1959. In this ambitious project, the University’s Oriental and African Studies Department set out to systematically record the several hundred different bodies of law comprising the customary law of just 16 African countries.83

Formally documenting customary law has had significant effects on its enforcement. Traditionally, the enforcement of customary law is an informal process. Many disputes in small communities are among relatives, friends or neighbours, who must live on close terms with one another afterwards.84 Accordingly, less formal means of dispute resolution have been preferred, with the

appointed adjudicators often reaching a decision based on ‘personal perceptions of fairness and reason rather than by searching for a definitive legal rule’.85 However, as the legal frameworks in these communities have become more formalised, accurate documentation of a region’s customary law has become more and more necessary in achieving just outcomes.

When parties to a dispute seek to rely upon an aspect of customary law in a statutory court, the court faces the problem of correctly ascertaining the applicable customary law principle. This is especially difficult if no formal record of the customary law principle exists, and the principle has not previously come before the court. The academic Gordon Woodman outlines the three most common methods courts employ in order to prove customary law:

1. Calling expert witnesses for whom knowing the customs of their people is part of their duties (usually chiefs or other traditional office bearers);

2. The use of authoritative text books; and

3. Reliance on previous decisions from superior courts.86

In courts where judicial officers are taken to possess knowledge of customary law principles, no proof of the officer’s knowledge of the law may be required.

82 Elias T.O., ‘The Problem of Reducing Customary Laws to Writing’, in Dundes Renteln A. and Dundes A. (eds) Folk Law: Essays in the Theory and Practice of Lex Non Scripta: Volume 1, (1st ed 1994), 320.

83 Twining, W., ‘The Restatement of African Customary Law: A Comment’, (1963) 1(2), The Journal of Modern African Studies, 221-228, 221.


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32


community would be fully aware of their customary social and legal obligations, as they form part of everyday life.However, the effect of modernisation, globalisation and increased contact with foreign nations has resulted in many communities attempting to ‘modernise’ their customary law. Elias (who was once Federal Attorney General and Commissioner for Justice for Nigeria) confirms the effect of these influences, writing that with unwritten customary law ‘uncertainty and confusion are bound to arise, particularly as what used to be a compact and homogenous community… becomes increasingly diverse and heterogeneous’.82 Accordingly, there have been both internal and external attempts to formally record and document many customary law systems throughout the world.

In the majority of cases, it is people from outside these communities who have taken on the challenge of documenting customary law. A notable example was the University of London’s Restatement of African Customary Law project launched in 1959. In this ambitious project, the University’s Oriental and African Studies Department set out to systematically record the several hundred different bodies of law comprising the customary law of just 16 African countries.83

Formally documenting customary law has had significant effects on its enforcement. Traditionally, the enforcement of customary law is an informal process. Many disputes in small communities are among relatives, friends or neighbours, who must live on close terms with one another afterwards.84 Accordingly, less formal means of dispute resolution have been preferred, with the

appointed adjudicators often reaching a decision based on ‘personal perceptions of fairness and reason rather than by searching for a definitive legal rule’.85 However, as the legal frameworks in these communities have become more formalised, accurate documentation of a region’s customary law has become more and more necessary in achieving just outcomes.

When parties to a dispute seek to rely upon an aspect of customary law in a statutory court, the court faces the problem of correctly ascertaining the applicable customary law principle. This is especially difficult if no formal record of the customary law principle exists, and the principle has not previously come before the court. The academic Gordon Woodman outlines the three most common methods courts employ in order to prove customary law:

1. Calling expert witnesses for whom knowing the customs of their people is part of their duties (usually chiefs or other traditional office bearers);

2. The use of authoritative text books; and

3. Reliance on previous decisions from superior courts.86

In courts where judicial officers are taken to possess knowledge of customary law principles, no proof of the officer’s knowledge of the law may be required.


86 Woodman G.R., ‘Some Realism About Customary Law – The West African Experience’, in Woodman G.R. and Obilade A.O.(eds), African Law and Legal Theory, (1st ed, 1995), 148-50.

33

Using these methods, customary law enters the formal legal system and thus develops into what is indisputably ‘law’. After all, many commentators believe that ‘for custom to be regarded as law in Western private law, more than simple usage must be and is required, even if the usage is general and has long flourished’.87

South Sudanese customary Law

In South Sudan customary law is more predominant and this varies from tribe to tribe.88 It is important to acknowledge that customary law is not homogenous within Sudan. Many tribal groups exist throughout Sudan. Depending on the source, there are between 50 and 900 tribes in South Sudan alone, each with a distinct body of functioning customary law. However, it should also be noted that one overriding justice principle is common to all tribes, namely the ‘need to achieve reconciliation and to ensure inter-community harmony rather than to punish’.89 As with earlier sections, this section will concentrate mainly on the South Sudanese Dinka and Nuer tribes, as they represent the largest Sudanese ethnic groups in South Sudan and also in Australia.

Despite half a century of civil war, during which physical and bureaucratic infrastructures have collapsed, customary law has survived. It has been the primary source of social order and stability in South Sudan. Sudanese Chief Justice Ambrose Thik has commented that South Sudanese ‘customary law is a manifestation of customs, social norms, beliefs and practices. It embodies much of what has been

fought for these past 20 years… [it] will underpin society, its legal institutions and laws in the future’.90

recording of customary Law

The nature of South Sudanese customary law has not been conducive to systematic documentation. Indeed, South Sudanese peoples initially resisted the formal documentation of their customary law in the belief that any formal system of customary law would be too inflexible. They felt that the dynamic nature of their customs and practices would be severely limited by any authoritative statement.91 More recently, there is evidence to suggest that this attitude is changing, as many South Sudanese are coming to recognise the benefits of a written form of customary law, including that the law becomes less prone to misinterpretation and bias.92

enforcement of customary Law

Enforcement of customary law in South Sudan has been aided to a degree by legislation recognising its existence. The Civil Procedure Act 2003, one of the new laws applying to South Sudan, provides that the rules to be applied in personal matters such as succession, inheritance, marriage, divorce and family relations shall be decided by any applicable custom to the parties, which is not contrary to justice, equity and good conscience and has not been altered or abolished by an act or made void by a decision of a competent


88 Springvale Monash Legal Service Inc. Consultation 2 (2006).

89 Akechak, A., Leitch, R. and Vandewint, C. A Study of Customary Law in Contemporary Southern Sudan, (2004) World Vision International and the South Secretariat of Legal and Constitutional Affairs, 21.

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34


Using these methods, customary law enters the formal legal system and thus develops into what is indisputably ‘law’. After all, many commentators believe that ‘for custom to be regarded as law in Western private law, more than simple usage must be and is required, even if the usage is general and has long flourished’.87

South Sudanese customary Law

In South Sudan customary law is more predominant and this varies from tribe to tribe.88 It is important to acknowledge that customary law is not homogenous within Sudan. Many tribal groups exist throughout Sudan. Depending on the source, there are between 50 and 900 tribes in South Sudan alone, each with a distinct body of functioning customary law. However, it should also be noted that one overriding justice principle is common to all tribes, namely the ‘need to achieve reconciliation and to ensure inter-community harmony rather than to punish’.89 As with earlier sections, this section will concentrate mainly on the South Sudanese Dinka and Nuer tribes, as they represent the largest Sudanese ethnic groups in South Sudan and also in Australia.

Despite half a century of civil war, during which physical and bureaucratic infrastructures have collapsed, customary law has survived. It has been the primary source of social order and stability in South Sudan. Sudanese Chief Justice Ambrose Thik has commented that South Sudanese ‘customary law is a manifestation of customs, social norms, beliefs and practices. It embodies much of what has been

fought for these past 20 years… [it] will underpin society, its legal institutions and laws in the future’.90

recording of customary Law

The nature of South Sudanese customary law has not been conducive to systematic documentation. Indeed, South Sudanese peoples initially resisted the formal documentation of their customary law in the belief that any formal system of customary law would be too inflexible. They felt that the dynamic nature of their customs and practices would be severely limited by any authoritative statement.91 More recently, there is evidence to suggest that this attitude is changing, as many South Sudanese are coming to recognise the benefits of a written form of customary law, including that the law becomes less prone to misinterpretation and bias.92

enforcement of customary Law

Enforcement of customary law in South Sudan has been aided to a degree by legislation recognising its existence. The Civil Procedure Act 2003, one of the new laws applying to South Sudan, provides that the rules to be applied in personal matters such as succession, inheritance, marriage, divorce and family relations shall be decided by any applicable custom to the parties, which is not contrary to justice, equity and good conscience and has not been altered or abolished by an act or made void by a decision of a competent




35

court. However, commentators such as Justice Akechak point out that because it is so new, and lacks resources such as courts and judges, the growing statutory law system has a very limited effect on the overall legal process.93 Further, parties must bring their dispute to court. This may be difficult for those living in rural communities, given the distance and expense of travelling to a large city. Therefore, such matters are likely to be dealt with by the local chief or community elders.

In South Sudan, a community will often acknowledge the reasonableness of a custom, or that it conforms to justice, equity and good conscience, by accepting and obeying it.94 However, now it is judges who determine whether a customary law satisfies this standard and therefore gains the force of law. Makec (once a judge in the Court of Appeal in Sudan) comments that judges have had a propensity to import their subjective opinions about what is reasonable and conforms to justice, equity and good conscience.

While judges may bring their own beliefs to decisions, they cannot disregard community practices. Makec believes that a community would never obey a decision which rejects a long-standing custom with sacred aspects attached to it.95 Therefore, a Dinka court applying a rule of custom to a case will investigate whether a practice has had an enduring presence. It is argued that the objective test of reasonableness need not be considered, because, if an action was subjectively unreasonable to the adherents, it would not have survived.96

development of customary Law

The development of customary law in South Sudan can be attributed to common usage amongst communities. In Dinka society, it is necessary for a custom to be more than the practice of a small group. Indeed, it needs to be the repeated practice of a whole community.97 Makec gives a specific example of how a customary law may evolve and obtain legal force. In the case of a civil wrong, a resolution is adopted by elders and if it is accepted by both the aggrieved and wrongdoer and avoids either party taking the law into their own hands, it acquires force. This solution will then be applied in similar cases, and if it is broadly accepted for an extensive and indefinite period, it will be elevated to a custom with binding force.98

Sudanese customary Laws which differ from victorian Law

Comments by members of the South Sudanese community in Victoria suggest that a misunderstanding of Victorian laws has lead to a proportion of this group falling foul of particular Victorian laws. Not all or even a majority of South Sudanese Victorians repetitively ignore the law, however misunderstanding of Victorian law may provide a reason for non-compliance by some members of this group.

Other Victorian laws, such as child protection laws, regulate behaviours not covered by South Sudanese customary law. These new concepts require explanation before South Sudanese Victorians can adapt.99

97 Makec, John W., The Customary Law of the Dinka People of Sudan (Afroworld Publishing, London, 1988), 32.







Customary Law

36


court. However, commentators such as Justice Akechak point out that because it is so new, and lacks resources such as courts and judges, the growing statutory law system has a very limited effect on the overall legal process.93 Further, parties must bring their dispute to court. This may be difficult for those living in rural communities, given the distance and expense of travelling to a large city. Therefore, such matters are likely to be dealt with by the local chief or community elders.

In South Sudan, a community will often acknowledge the reasonableness of a custom, or that it conforms to justice, equity and good conscience, by accepting and obeying it.94 However, now it is judges who determine whether a customary law satisfies this standard and therefore gains the force of law. Makec (once a judge in the Court of Appeal in Sudan) comments that judges have had a propensity to import their subjective opinions about what is reasonable and conforms to justice, equity and good conscience.

While judges may bring their own beliefs to decisions, they cannot disregard community practices. Makec believes that a community would never obey a decision which rejects a long-standing custom with sacred aspects attached to it.95 Therefore, a Dinka court applying a rule of custom to a case will investigate whether a practice has had an enduring presence. It is argued that the objective test of reasonableness need not be considered, because, if an action was subjectively unreasonable to the adherents, it would not have survived.96

development of customary Law

The development of customary law in South Sudan can be attributed to common usage amongst communities. In Dinka society, it is necessary for a custom to be more than the practice of a small group. Indeed, it needs to be the repeated practice of a whole community.97 Makec gives a specific example of how a customary law may evolve and obtain legal force. In the case of a civil wrong, a resolution is adopted by elders and if it is accepted by both the aggrieved and wrongdoer and avoids either party taking the law into their own hands, it acquires force. This solution will then be applied in similar cases, and if it is broadly accepted for an extensive and indefinite period, it will be elevated to a custom with binding force.98

Sudanese customary Laws which differ from victorian Law

Comments by members of the South Sudanese community in Victoria suggest that a misunderstanding of Victorian laws has lead to a proportion of this group falling foul of particular Victorian laws. Not all or even a majority of South Sudanese Victorians repetitively ignore the law, however misunderstanding of Victorian law may provide a reason for non-compliance by some members of this group.

Other Victorian laws, such as child protection laws, regulate behaviours not covered by South Sudanese customary law. These new concepts require explanation before South Sudanese Victorians can adapt.99








37

In addition, some South Sudanese customary laws directly conflict with Victorian law. For example, the concept of marriage is approached somewhat differently in South Sudan.100 Polygamy is a legally accepted practice in some parts of South Sudan. This will be discussed in more detail in the Family Law section of this paper.

comparing South Sudanese customary Law with victorian Law

South Sudanese customary law is significantly different in its purpose, structure and execution to Victorian law. In South Sudan, over 90% of criminal and civil cases are conducted under customary law.101 The following section will broadly compare the two systems.

Philosophical underpinnings

One of the key aims of Victorian law is to create and reinforce the maintenance of a peaceful community. This is reflected by the Department of Justice’s vision to ensure a ‘safe and just Victoria’.102 These aims underpin Victorian and Australian laws and the severity of penalties largely depends on the nature of the conduct in question.

Similarly, the main aim of South Sudanese customary law is to create and reinforce a peaceful community, and maintain a social cohesion within the community. As in common law

systems, concepts of punishment and deterrence exist in South Sudanese customary law, with the focus on practical conciliation and restitution between individuals, families and tribes. Conciliation aims at peace through compromise and reparation for wrongs committed.103 In South Sudanese customary law, both civil and criminal issues are dealt with under the same body of law, with the same procedures and fundamental ethos. This ethos emphasises conciliation in civil law and reconciliation between the wronged party and wrongdoer in criminal law.104 These laws are rarely written down, but are generally known to the community.105 The academic and lawyer Nsongurua Udombana writes that African dispute resolution places a premium on improving relations on the basis of equity, good conscience and fair play, rather than the strict legality often associated with Western justice, for example, adherence to a sentencing regime which is, in part, non-negotiable.106

The functional areas of Sudanese customary law are:

1) Family Law;

2) Property Law;

3) Law of Obligations (covers contract, torts and some criminal laws); and

4) Procedural Law.107

100 In Australia, marriage is under the jurisdiction of the Family Law Act 1975 (Cwth). Therefore, it is governed by Federal law rather than state law.


102 Department of Justice Victoria Website <http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/ The+Justice+System/> at 28 March 2007

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38


In addition, some South Sudanese customary laws directly conflict with Victorian law. For example, the concept of marriage is approached somewhat differently in South Sudan.100 Polygamy is a legally accepted practice in some parts of South Sudan. This will be discussed in more detail in the Family Law section of this paper.

comparing South Sudanese customary Law with victorian Law

South Sudanese customary law is significantly different in its purpose, structure and execution to Victorian law. In South Sudan, over 90% of criminal and civil cases are conducted under customary law.101 The following section will broadly compare the two systems.

Philosophical underpinnings

One of the key aims of Victorian law is to create and reinforce the maintenance of a peaceful community. This is reflected by the Department of Justice’s vision to ensure a ‘safe and just Victoria’.102 These aims underpin Victorian and Australian laws and the severity of penalties largely depends on the nature of the conduct in question.

Similarly, the main aim of South Sudanese customary law is to create and reinforce a peaceful community, and maintain a social cohesion within the community. As in common law

systems, concepts of punishment and deterrence exist in South Sudanese customary law, with the focus on practical conciliation and restitution between individuals, families and tribes. Conciliation aims at peace through compromise and reparation for wrongs committed.103 In South Sudanese customary law, both civil and criminal issues are dealt with under the same body of law, with the same procedures and fundamental ethos. This ethos emphasises conciliation in civil law and reconciliation between the wronged party and wrongdoer in criminal law.104 These laws are rarely written down, but are generally known to the community.105 The academic and lawyer Nsongurua Udombana writes that African dispute resolution places a premium on improving relations on the basis of equity, good conscience and fair play, rather than the strict legality often associated with Western justice, for example, adherence to a sentencing regime which is, in part, non-negotiable.106

The functional areas of Sudanese customary law are:

1) Family Law;

2) Property Law;

3) Law of Obligations (covers contract, torts and some criminal laws); and

4) Procedural Law.107




106 Udombana, N.J., ‘An African Human Rights Court: A Needful Duality or a Needless Duplication?’ (2003) 28, Brooklyn Journal of International Law, 811-862, 818.


39

Finally, in Sudan, statutory laws and the African Charter of Human Rights exist and may operate alongside customary law.108

Structure

In Victoria, the law receives its power from the state and federal constitutions. Parliament has the power to legislate, and Courts the power to interpret laws to settle disputes authoritatively. Victorian law consists primarily of two discrete types, criminal and civil law. These both follow separate procedural methods and utilise different remedies.

However, in South Sudan, customary law blurs the common law distinction between criminal and civil law. Often the administration of these laws is combined, with the overriding concern of restoring the social equilibrium through payment of damages.109

Litigation

Litigation is an accepted method of dispute resolution in Victoria. There are monetary limits and issues of jurisdiction that guide matters in certain courts. Family law matters are mainly heard in Family Law Courts, Children’s Courts and Federal Magistrates’ Courts. Minor criminal and civil matters may be heard in the Magistrates’ and County Courts. More serious matters in all of these areas may reach the higher courts such as the County, Supreme or High Courts.

In addition, alternatives to litigation are increasingly being promoted and employed. Examples include mediation, negotiation, arbitration and conciliation. These can be effective in reducing the time and cost involved in resolving a dispute.

The adversarial litigation model is foreign to South Sudanese communities. The emphasis in South Sudanese custom is on restoring social equilibrium by cooperative means. Families prefer to sort out any problems they have within or between families and communities.110 There may be a tribunal with tribal elders or mediators to help sort out disputes and encourage reconciliation.111

If these methods fail, the parties may then go to court as a last resort. This usually signifies a deadlock that even a council of elders cannot resolve. When in court, the Constitution of the Chief’s Courts governs the customary laws of the people of South Sudan.112 The court follows an inquisitorial system where chiefs or judges will actively involve the parties in the decision making process.

Appeals may be made to higher courts.113 They may be made from Chief’s and Regional or Payam Courts to the County Court, High Court or Court of Appeal.

enforcement

In Australia, the state and federal constitutions give power to the Executive to apply and enforce the law. The Executive includes the government and the police.

108 Akechak, A., Leitch, R. and Vandewint, C. A Study of Customary Law in Contemporary Southern Sudan, (2004) World Vision International and the South Secretariat of Legal and Constitutional Affairs, 47-49.


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40


Finally, in Sudan, statutory laws and the African Charter of Human Rights exist and may operate alongside customary law.108

Structure

In Victoria, the law receives its power from the state and federal constitutions. Parliament has the power to legislate, and Courts the power to interpret laws to settle disputes authoritatively. Victorian law consists primarily of two discrete types, criminal and civil law. These both follow separate procedural methods and utilise different remedies.

However, in South Sudan, customary law blurs the common law distinction between criminal and civil law. Often the administration of these laws is combined, with the overriding concern of restoring the social equilibrium through payment of damages.109

Litigation

Litigation is an accepted method of dispute resolution in Victoria. There are monetary limits and issues of jurisdiction that guide matters in certain courts. Family law matters are mainly heard in Family Law Courts, Children’s Courts and Federal Magistrates’ Courts. Minor criminal and civil matters may be heard in the Magistrates’ and County Courts. More serious matters in all of these areas may reach the higher courts such as the County, Supreme or High Courts.

In addition, alternatives to litigation are increasingly being promoted and employed. Examples include mediation, negotiation, arbitration and conciliation. These can be effective in reducing the time and cost involved in resolving a dispute.

The adversarial litigation model is foreign to South Sudanese communities. The emphasis in South Sudanese custom is on restoring social equilibrium by cooperative means. Families prefer to sort out any problems they have within or between families and communities.110 There may be a tribunal with tribal elders or mediators to help sort out disputes and encourage reconciliation.111

If these methods fail, the parties may then go to court as a last resort. This usually signifies a deadlock that even a council of elders cannot resolve. When in court, the Constitution of the Chief’s Courts governs the customary laws of the people of South Sudan.112 The court follows an inquisitorial system where chiefs or judges will actively involve the parties in the decision making process.

Appeals may be made to higher courts.113 They may be made from Chief’s and Regional or Payam Courts to the County Court, High Court or Court of Appeal.

enforcement

In Australia, the state and federal constitutions give power to the Executive to apply and enforce the law. The Executive includes the government and the police.

110 Springvale Monash Legal Service Inc., Focus Group 5, (2007) and Consultation 16 (2007).

111 Springvale Monash Legal Service Inc., Focus Group 5, (2007).

112 Springvale Monash Legal Service Inc., Focus Group 5, (2007) and Focus Group 3 (2006), Akechak, A., Leitch, R. and Vandewint, C. A Study of Customary Law in Contemporary Southern Sudan, (2004) World Vision International and the South Secretariat of Legal and Constitutional Affairs, 42.


41

The police force in Victoria enforces the law whilst also being subject to it. In enforcing the law, it may perform a range of actions including:

•Arrestinganddetainingindividuals;

•Investigatingandlaunchingprosecutions;

•Recommendingcertainoutcomesincourt;

•Enforcingcourtorders.

Generally, there has been a lack of enforcement mechanisms in South Sudan. Macek suggests that Dinka customary law lacks enforcement mechanisms because (like other African legal systems) it has not developed the type of remedies that would require the creation of necessary institutions for the enforcement …of law.114 Rather, a general fear of God, supernatural powers, public criticism and (collective) revenge induces obedience to custom.115

Presently, South Sudan has an under-resourced judiciary as well as police and prison system, in terms of facilities, trained officers and support staff. Few police possess the skills required to prosecute cases in courts and there is a backlog in the court system. The long-running civil war has largely undermined these systems. Prisons also lack the necessary resources to operate effectively.116

The most common areas of day-to-day law that are

misunderstood by Sudanese living in Victoria (as reported by service providers and people experienced in dealing with the community) tend to revolve around driving laws, using public transport and public space and dealing with Centrelink and other government agencies.

The use of public space is generally an issue for younger South Sudanese people. They often do not understand, often with reason, why they are confronted by police or asked to move on, considering that congregating in a public space is not by itself an offence. Many younger people who grew up in refugee camps are accustomed to associating in groups.117 They are generally acting in a way that was previously acceptable and their treatment often leads to a perception of discrimination by the police. Service providers have reported cases of aggressive and bullying behaviour towards South Sudanese youth by police.118

In Flemington, Sudanese youth spoke of being targeted and harassed by police officers and instances were reported of individuals being questioned five times in one day by the same officer.119 In 2006 the Flemington/Kensington Community Legal Centre lodged, on behalf of its clients, a number of complaints with the Office of Police Integrity (OPI), as reported in the Alternative Law Journal.120 The complaints contained reports of ‘police violence including the excessive use of force in arrests, assault, harassment and threats of violence directed at young refugees in the Flemington area.’121 Some South Sudanese Victorians allege

117 Akechak, A., Leitch, R. and Vandewint, C. A Study of Customary Law in Contemporary Southern Sudan, (2004) World Vision International and the South Secretariat of Legal and Constitutional Affairs, 53; Springvale Monash Legal Service Inc., Consultation 1 (2006).



120 Hopkins, T., ‘Complaints Against Police Behaviour in Flemington, Victoria, 2006.’ (2007) 32(1) Alternative Law Journal, 9, 32.



115 Makec, John W., The Customary Law of the Dinka People of Sudan (Afroworld Publishing, London, 1988) 47.


Customary Law

42


The police force in Victoria enforces the law whilst also being subject to it. In enforcing the law, it may perform a range of actions including:

•Arrestinganddetainingindividuals;

•Investigatingandlaunchingprosecutions;

•Recommendingcertainoutcomesincourt;

•Enforcingcourtorders.

Generally, there has been a lack of enforcement mechanisms in South Sudan. Macek suggests that Dinka customary law lacks enforcement mechanisms because (like other African legal systems) it has not developed the type of remedies that would require the creation of necessary institutions for the enforcement …of law.114 Rather, a general fear of God, supernatural powers, public criticism and (collective) revenge induces obedience to custom.115

Presently, South Sudan has an under-resourced judiciary as well as police and prison system, in terms of facilities, trained officers and support staff. Few police possess the skills required to prosecute cases in courts and there is a backlog in the court system. The long-running civil war has largely undermined these systems. Prisons also lack the necessary resources to operate effectively.116

The most common areas of day-to-day law that are

misunderstood by Sudanese living in Victoria (as reported by service providers and people experienced in dealing with the community) tend to revolve around driving laws, using public transport and public space and dealing with Centrelink and other government agencies.

The use of public space is generally an issue for younger South Sudanese people. They often do not understand, often with reason, why they are confronted by police or asked to move on, considering that congregating in a public space is not by itself an offence. Many younger people who grew up in refugee camps are accustomed to associating in groups.117 They are generally acting in a way that was previously acceptable and their treatment often leads to a perception of discrimination by the police. Service providers have reported cases of aggressive and bullying behaviour towards South Sudanese youth by police.118

In Flemington, Sudanese youth spoke of being targeted and harassed by police officers and instances were reported of individuals being questioned five times in one day by the same officer.119 In 2006 the Flemington/Kensington Community Legal Centre lodged, on behalf of its clients, a number of complaints with the Office of Police Integrity (OPI), as reported in the Alternative Law Journal.120 The complaints contained reports of ‘police violence including the excessive use of force in arrests, assault, harassment and threats of violence directed at young refugees in the Flemington area.’121 Some South Sudanese Victorians allege

117 Akechak, A., Leitch, R. and Vandewint, C. A Study of Customary Law in Contemporary Southern Sudan, (2004) World Vision International and the South Secretariat of Legal and Constitutional Affairs, 53; Springvale Monash Legal Service Inc., Consultation 1 (2006).






115 Makec, John W., The Customary Law of the Dinka People of Sudan (Afroworld Publishing, London, 1988) 47.


43

that they had been discriminated against or targeted by police because they were from Sudan.122 Examples include Sudanese people being repeatedly questioned by police,123 or being brought to police stations for minor offences and experiencing unnecessary force and physical abuse.124 Seminars have been conducted to help educate refugee youth in the area about the existence of the Flemington/Kensington Community Legal Centre and inform them of their rights and responsibilities towards police. The Springvale Monash Legal Service has conducted similar legal education seminars in the South Eastern region of Melbourne with members of the Sudanese community.

The South Sudanese community are understandably keen to hold onto their own cultural practices and are therefore reluctant to adapt to the laws of their new community.125 This is an issue with Australian family law in relation to family structures and disciplining children. In relation to Australian road rules some respondents suggested that South Sudanese people do have a good understanding of the relevant rules but tend not to obey them as the penalties for not obeying, comparative to their past experiences, are not perceived as being too onerous.126

One respondent who works with the Sudanese community identified three groups within that community. The first are quite deliberately disrespectful of Victorian law, the second have adopted and complied with Victorian law enthusiastically, and the third will merely follow the directions of the elders and leaders in their community, who in this respondent’s opinion were generally disrespectful

of Victorian law.127 The consistent response was that fines are generally not a significant deterrent because they can be ignored, despite the subsequent potential for financial hardship. The South Sudanese are generally used to ‘short, sharp’ forms of punishment dealt with by elders within a tribe or community. The Australian legal process can be drawn out and leads to humiliation of the offender and their family within the South Sudanese community.128



122 Springvale Monash Legal Service Inc. Consultation 3 (2006) and Consultation 4 (2006).


124 Springvale Monash Legal Service Inc., Focus Group 2 (2007) and Consultation 5 (2006).



Customary Law

44


that they had been discriminated against or targeted by police because they were from Sudan.122 Examples include Sudanese people being repeatedly questioned by police,123 or being brought to police stations for minor offences and experiencing unnecessary force and physical abuse.124 Seminars have been conducted to help educate refugee youth in the area about the existence of the Flemington/Kensington Community Legal Centre and inform them of their rights and responsibilities towards police. The Springvale Monash Legal Service has conducted similar legal education seminars in the South Eastern region of Melbourne with members of the Sudanese community.

The South Sudanese community are understandably keen to hold onto their own cultural practices and are therefore reluctant to adapt to the laws of their new community.125 This is an issue with Australian family law in relation to family structures and disciplining children. In relation to Australian road rules some respondents suggested that South Sudanese people do have a good understanding of the relevant rules but tend not to obey them as the penalties for not obeying, comparative to their past experiences, are not perceived as being too onerous.126

One respondent who works with the Sudanese community identified three groups within that community. The first are quite deliberately disrespectful of Victorian law, the second have adopted and complied with Victorian law enthusiastically, and the third will merely follow the directions of the elders and leaders in their community, who in this respondent’s opinion were generally disrespectful

of Victorian law.127 The consistent response was that fines are generally not a significant deterrent because they can be ignored, despite the subsequent potential for financial hardship. The South Sudanese are generally used to ‘short, sharp’ forms of punishment dealt with by elders within a tribe or community. The Australian legal process can be drawn out and leads to humiliation of the offender and their family within the South Sudanese community.128



122 Springvale Monash Legal Service Inc. Consultation 3 (2006) and Consultation 4 (2006).





45

Justice/Police Systems

South Sudanese Victorians are largely law-abiding citizens. Police have commented that South Sudanese Victorians are actually under-represented in crime statistics,129 and that they are ‘a hard-working and contributing group within the broader community, but because of their background and the hardships they have faced they sometimes find Australian laws and customs difficult to understand’.130

South Sudanese Victorians come into conflict with various areas of Victorian law,131 including road laws, family law (including family violence) and criminal law. This often stems from a misunderstanding of the rights and duties imposed by Victorian law.132

Many South Sudanese people may have low levels of education, due in large part to the civil war.133 This may impact on their ability to understand the concepts of the Victorian legal system, which are very different from South Sudanese customary law.134 Seeking legal advice may be difficult because members of the community may fear that interpreters or community (legal) workers may disclose confidential information heard during the translation and interview process.135 Some African migrants may find it difficult to access or trust the Victorian justice system when

there are no African people within the system itself.136 Cultural differences between workers in the justice system and South Sudanese migrants in Victoria may also create a barrier between the community and the legal system.137 Language barriers also pose a problem. In one instance, a South Sudanese man gave his first and middle name to the police, thinking this was what was asked of him. He was charged with providing a false name.138

Participants reported that South Sudanese Victorians often receive discriminatory treatment from police, employers and other people in positions of power. South Sudanese Victorians feel they are unfairly treated because of their race and skin colour.139 Participants reported incidents of South Sudanese Victorians being sworn at by police, and stated that police generally fail to explain what it is that offenders are doing wrong.140

The role of police is often different in Sudan. In rural areas, for example, police are generally too far away to assist the community in a protective capacity, and their role has been largely to carry out assignments given them by elders, including but not limited to transporting goods and livestock, resulting from customary law decisions, between families.141 In urban areas of Sudan, police are tasked with protecting the community; however, they are rarely trusted and are often feared.142

129 ‘Media reports of rampant Sudanese crime do not accurately reflect reality’, Oakleigh Monash Leader/Springvale Dandenong Leader (Melbourne) 18 April 2007.

130 Masanauskas, J., ‘Crime Trend a Concern’, The Herald Sun, 2 November 2005.

131 Masanauskas, J., ‘Crime Trend a Concern’, The Herald Sun, 2 November 2005; Springvale Monash Legal Service Inc. Consultation 1 (2006).




135 Aplin, S., Analysis of the Legal Needs of Horn of Africa People in Melbourne Pro Bono Fellowship Report, (2002) Sudanese Online Research Association <http://sora.akm.net.au/publish.php?subaction=showfull&id=1066924977&archive =&start_from=&ucat=38&> at 8 July 2007, 36

Comparative Analysis


46


Justice/Police Systems

South Sudanese Victorians are largely law-abiding citizens. Police have commented that South Sudanese Victorians are actually under-represented in crime statistics,129 and that they are ‘a hard-working and contributing group within the broader community, but because of their background and the hardships they have faced they sometimes find Australian laws and customs difficult to understand’.130

South Sudanese Victorians come into conflict with various areas of Victorian law,131 including road laws, family law (including family violence) and criminal law. This often stems from a misunderstanding of the rights and duties imposed by Victorian law.132

Many South Sudanese people may have low levels of education, due in large part to the civil war.133 This may impact on their ability to understand the concepts of the Victorian legal system, which are very different from South Sudanese customary law.134 Seeking legal advice may be difficult because members of the community may fear that interpreters or community (legal) workers may disclose confidential information heard during the translation and interview process.135 Some African migrants may find it difficult to access or trust the Victorian justice system when

there are no African people within the system itself.136 Cultural differences between workers in the justice system and South Sudanese migrants in Victoria may also create a barrier between the community and the legal system.137 Language barriers also pose a problem. In one instance, a South Sudanese man gave his first and middle name to the police, thinking this was what was asked of him. He was charged with providing a false name.138

Participants reported that South Sudanese Victorians often receive discriminatory treatment from police, employers and other people in positions of power. South Sudanese Victorians feel they are unfairly treated because of their race and skin colour.139 Participants reported incidents of South Sudanese Victorians being sworn at by police, and stated that police generally fail to explain what it is that offenders are doing wrong.140

The role of police is often different in Sudan. In rural areas, for example, police are generally too far away to assist the community in a protective capacity, and their role has been largely to carry out assignments given them by elders, including but not limited to transporting goods and livestock, resulting from customary law decisions, between families.141 In urban areas of Sudan, police are tasked with protecting the community; however, they are rarely trusted and are often feared.142

136 Aplin, S., Analysis of the Legal Needs of Horn of Africa People in Melbourne Pro Bono Fellowship Report, (2002) Sudanese Online Research Association <http://sora.akm.net.au/publish.php?subaction=showfull&id=1066924977&arc hive=&start_from=&ucat=38&> at 8 July 2007,, 24. The report focuses on Horn of Africa migrants and this finding relates generally to them. The theory is likely directly relevant to South Sudanese migrants as Sudan is in the Horn of Africa.

137 Aplin, S., Analysis of the Legal Needs of Horn of Africa People in Melbourne Pro Bono Fellowship Report, (2002) Sudanese Online Research Association <http://sora.akm.net.au/publish.php?subaction=showfull&id=1066924977&archive =&start_from=&ucat=38&> at 8 July 2007, 27.



140 Springvale Monash Legal Service Inc., Consultation 3 (2006)..



47

In South Sudan, disputes and crimes are often dealt with amongst the family or the community in which they took place. Families compensate other families with cattle or tribal elders may help to mediate solutions.143 In Australia, police and court powers are far more extensive and can step in for both public and private legal situations. There are laws regulating private transactions, arrangements and situations and this means that Australian residents or citizens can avail themselves of the law in such situations. They have the right of access to police protection and assistance, and a court to resolve disputes.

criminal Laws

Criminal laws in South Sudan differ greatly from tribe to tribe, as compared with the more formalised and universal Victorian criminal law system. Also, there are marked differences between penalties in urban areas when compared with rural areas in South Sudan. In urban areas of South Sudan, for example, the crime of murder may incur a life jail term,144 or possibly capital punishment, although participants indicated that in recent times capital punishment has not widely been used.145 In rural areas, however, if a perpetrator of an offender is wealthy (with wealth largely measured through ownership of cattle), they may be required to pay the victim’s family as compensation,146 and this sometimes occurs instead of incarceration. The compensation will often be paid in the form of cattle.147 Many defendants will be exonerated if a sufficient fine can be paid.148

Participants indicated that those caught thieving in rural South Sudan will often be required to compensate the victim, although the precise penalty may vary depending on the intent of the offender, and their personal circumstances. If, for instance, someone stole food in order to prevent the starvation of their family, their penalty would be more likely to be lenient in comparison to a theft committed by a less needy offender.149 In this regard, it is evident that concepts related to therapeutic jurisprudence exist within the tenets of Sudanese customary law. Some participants reported that theft is often difficult to prove, and also it can be difficult to locate the offender for punishment.150 Further, the community may deal with theft without resorting to the justice system.151 The response to crime varies from group to group, and whether the offence has been committed in a rural or urban area of South Sudan. The responses to theft in south Sudan are significantly different when be contrasted with the strict and formal laws for crimes such as theft in Victoria.152

Family Law

Family Structure: Sudan vs. Australia

There are many differences between Australian family law and South Sudanese customary law. The many and varied tribal groups in South Sudan have differing customary law and practices regarding the family. South Sudanese Victorians will not be familiar with a homogenous and what might be perceived as intrusive legal system. This contributes to the difficulties South Sudanese Victorians face in fully




152 See for example, Crimes Act 1958 (Vic), amendments as at 23 April 2007.


144 Springvale Monash Legal Service Inc., Focus Group 1 (2006), Focus Group 2 (2006) and Focus Group 4 (2006).

145 Springvale Monash Legal Service Focus Group 1 (2006), Focus Group 2 (2006) and Consultation 16 (2007).

146 Springvale Monash Legal Service Inc., Focus Group 3 (2006) and Focus Group 5 (2007).




48


In South Sudan, disputes and crimes are often dealt with amongst the family or the community in which they took place. Families compensate other families with cattle or tribal elders may help to mediate solutions.143 In Australia, police and court powers are far more extensive and can step in for both public and private legal situations. There are laws regulating private transactions, arrangements and situations and this means that Australian residents or citizens can avail themselves of the law in such situations. They have the right of access to police protection and assistance, and a court to resolve disputes.

criminal Laws

Criminal laws in South Sudan differ greatly from tribe to tribe, as compared with the more formalised and universal Victorian criminal law system. Also, there are marked differences between penalties in urban areas when compared with rural areas in South Sudan. In urban areas of South Sudan, for example, the crime of murder may incur a life jail term,144 or possibly capital punishment, although participants indicated that in recent times capital punishment has not widely been used.145 In rural areas, however, if a perpetrator of an offender is wealthy (with wealth largely measured through ownership of cattle), they may be required to pay the victim’s family as compensation,146 and this sometimes occurs instead of incarceration. The compensation will often be paid in the form of cattle.147 Many defendants will be exonerated if a sufficient fine can be paid.148

Participants indicated that those caught thieving in rural South Sudan will often be required to compensate the victim, although the precise penalty may vary depending on the intent of the offender, and their personal circumstances. If, for instance, someone stole food in order to prevent the starvation of their family, their penalty would be more likely to be lenient in comparison to a theft committed by a less needy offender.149 In this regard, it is evident that concepts related to therapeutic jurisprudence exist within the tenets of Sudanese customary law. Some participants reported that theft is often difficult to prove, and also it can be difficult to locate the offender for punishment.150 Further, the community may deal with theft without resorting to the justice system.151 The response to crime varies from group to group, and whether the offence has been committed in a rural or urban area of South Sudan. The responses to theft in south Sudan are significantly different when be contrasted with the strict and formal laws for crimes such as theft in Victoria.152

Family Law

Family Structure: Sudan vs. Australia

There are many differences between Australian family law and South Sudanese customary law. The many and varied tribal groups in South Sudan have differing customary law and practices regarding the family. South Sudanese Victorians will not be familiar with a homogenous and what might be perceived as intrusive legal system. This contributes to the difficulties South Sudanese Victorians face in fully




152 See for example, Crimes Act 1958 (Vic), amendments as at 23 April 2007.



145 Springvale Monash Legal Service Focus Group 1 (2006), Focus Group 2 (2006) and Consultation 16 (2007).




49

understanding Australian law in this area. This section will focus mainly on the Dinka tribe.

Participants indicated that in South Sudan, each family member has a different role. Families are extended and include grandparents, uncles, aunts, cousins, nephews and nieces.153 Further, they indicated that values and traditions within a family unit are extremely important and include ‘family solidarity, respect for elders, hospitality towards guests and strangers, obedience to parents at all stages of life and remaining close to [the] family’.154 Children are taught respect for their elders, and adults are responsible for taking care of their elders.155

In South Sudan, most people will live with their parents until they marry. Some Dinka participants stated that once a couple has two or three children, they will leave their parents and move into their own home.156 Some participants in the women’s focus group expressed frustration with the fact that in Australia children as young as 16 can move out of home; in South Sudan, this is considered too young. Participants indicated that children are given independence too early in Victoria, making it harder for parents to control them.157

In South Sudan, parents will often physically discipline their children. Under Australian family law this behaviour can have significant legal consequences.158 Some participants held the view that if they did not physically discipline their children they would lose control of them. Participants

emphasised that traditionally children are not excessively physically chastised, but only just enough to deter them from misbehaving.159 Another concern was that South Sudanese children in Victoria no longer respect elders or adhere to the morals and practices traditionally maintained in a typical South Sudanese family.160

Traditionally, a father is head of the family, and the main income earner, whilst a mother is in charge of the home; however when both parents work they will share the role of maintaining the home.161 A major role of many South Sudanese women is to bear children, as many children die at a young age in South Sudan due to a number of reasons including limited access to medical services.162 Due to their customary roles, only a small number of women receive tertiary or other forms of education.163 This is quite different from Australia, with women having far better access to education. A good education can increase an individuals employment prospects, and therefore provide for better job opportunities. This will allow an individual the opportunity to exercise far more independence than those who have only had a minimal education. Further, the social aspects in receiving an education will allow individuals to mix with other people of cultures with different customs, which may induce them to question their own culture and customs. The increased opportunities for independence (through education) can impact upon the traditional roles in the family. Participants indicated that some South Sudanese Victorians experience difficulties adjusting to the different


154 Ibid, see also Springvale Monash Legal Service Inc., Focus Group 1 (2006) and Focus Group 5 (2007).

155 Ibid, see also Springvale Monash Legal Service Inc., Focus group 1 (2006) and Focus group 5 (2007).

156 Springvale Monash Legal Service Inc., Focus group 5 (2007).




50


understanding Australian law in this area. This section will focus mainly on the Dinka tribe.

Participants indicated that in South Sudan, each family member has a different role. Families are extended and include grandparents, uncles, aunts, cousins, nephews and nieces.153 Further, they indicated that values and traditions within a family unit are extremely important and include ‘family solidarity, respect for elders, hospitality towards guests and strangers, obedience to parents at all stages of life and remaining close to [the] family’.154 Children are taught respect for their elders, and adults are responsible for taking care of their elders.155

In South Sudan, most people will live with their parents until they marry. Some Dinka participants stated that once a couple has two or three children, they will leave their parents and move into their own home.156 Some participants in the women’s focus group expressed frustration with the fact that in Australia children as young as 16 can move out of home; in South Sudan, this is considered too young. Participants indicated that children are given independence too early in Victoria, making it harder for parents to control them.157

In South Sudan, parents will often physically discipline their children. Under Australian family law this behaviour can have significant legal consequences.158 Some participants held the view that if they did not physically discipline their children they would lose control of them. Participants

emphasised that traditionally children are not excessively physically chastised, but only just enough to deter them from misbehaving.159 Another concern was that South Sudanese children in Victoria no longer respect elders or adhere to the morals and practices traditionally maintained in a typical South Sudanese family.160

Traditionally, a father is head of the family, and the main income earner, whilst a mother is in charge of the home; however when both parents work they will share the role of maintaining the home.161 A major role of many South Sudanese women is to bear children, as many children die at a young age in South Sudan due to a number of reasons including limited access to medical services.162 Due to their customary roles, only a small number of women receive tertiary or other forms of education.163 This is quite different from Australia, with women having far better access to education. A good education can increase an individuals employment prospects, and therefore provide for better job opportunities. This will allow an individual the opportunity to exercise far more independence than those who have only had a minimal education. Further, the social aspects in receiving an education will allow individuals to mix with other people of cultures with different customs, which may induce them to question their own culture and customs. The increased opportunities for independence (through education) can impact upon the traditional roles in the family. Participants indicated that some South Sudanese Victorians experience difficulties adjusting to the different

159 Springvale Monash Legal Service Inc., Focus Group 1 (2006), Focus Group 5 (2007) and Consultation 16 (2007).


161 Springvale Monash Legal Service Inc. Focus Group 1 (2006), Focus Group 3 (2006) and Focus Group 5 (2007).

162 Springvale Monash Legal Service Inc., Focus Group 1, (2006).


51

roles in Australia.164 Some participants suggested that children and women have greater freedom and independence in Australia, which impacts on a father’s traditional role in the family.165

Marriage: South Sudan

The section below illustrates various customs regarding marriage in rural South Sudan. As is evident in the forthcoming discussion, there are a number of different customs, many which vary significantly from the laws governing marriage in Australia. It is therefore impossible to identify a single concrete set of practices relating to marriage and assume that this definition accords with all marriage practices in South Sudan. It is therefore inaccurate to assume that all South Sudanese Victorians will have similar set of experiences and practices.

According to Samuel Machar Kuot, marriage in South Sudan occurs between two families rather than two individuals; hence difficulties or conflict between a husband and wife are regarded as a community rather than a private matter.166 In South Sudan, young women tend to marry around the age of 18 years, while young men may marry between the ages of 20 and 25.167 In the Dinka tribe a marriage cannot take place unless the woman herself is willing, although she may be pressured to select the most suitable candidate.168 When a couple marries traditionally in Sudan no official marriage

documents are signed, but the groom’s family pays a dowry to the bride’s family (paid in cattle).169 However, in Christian wedding ceremonies in South Sudan the couple will sign a marriage certificate, witnessed by a priest. The marriage is then endorsed, in some cases, by the Sudanese Government.170 Marriage in South Sudan can be complicated because the wider family is involved.171

In some cases, ‘Levirate’ marriages are also practiced by Dinka people, following the concept that families marry. In effect, it is understood that on a man’s passing, his wife will be married to his brother, thereby retaining the family connection.172

In the Shilluk tribe there may be two wedding ceremonies, one usually held in a church and the second a traditional ceremony where elders sit and discuss the dowry and give the couple their blessings.173

When a woman marries she leaves her own family and her husband’s family becomes her new family.174

Arranged and polygamous marriages continue to exist in South Sudan, which poses potential difficulties in Australia, as polygamous marriages are neither recognised nor allowed. Participants indicated that it is not unusual for a South Sudanese man to have three wives and sometimes may even have up to 10 wives.175 The number of wives a man may marry depends on his wealth; in some cases,

164 Springvale Monash Legal Service Inc. Focus Group 1 (2006) and Focus group 6 (2007)


166 Samuel is the president of the Sudanese Community Association of Australia, in 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, .38, Akechak, A., Leitch, R. and Vandewint, C. A Study of Customary Law in Contemporary Southern Sudan, (2004) World Vision International and the South Secretariat of Legal and Constitutional Affairs, 21.

167 Springvale Monash Legal Service Inc., Consuultation 15 (2007) and Consultation 16 (2007).

168 Johnson, Douglas, ‘Bor-Duk District’ in C.A Willis (ed.), The Upper Nile Province handbook: A Report on Peoples and Government in the Southern Sudan 1931 (1st ed, 1995), 227 -8.


52


roles in Australia.164 Some participants suggested that children and women have greater freedom and independence in Australia, which impacts on a father’s traditional role in the family.165

Marriage: South Sudan

The section below illustrates various customs regarding marriage in rural South Sudan. As is evident in the forthcoming discussion, there are a number of different customs, many which vary significantly from the laws governing marriage in Australia. It is therefore impossible to identify a single concrete set of practices relating to marriage and assume that this definition accords with all marriage practices in South Sudan. It is therefore inaccurate to assume that all South Sudanese Victorians will have similar set of experiences and practices.

According to Samuel Machar Kuot, marriage in South Sudan occurs between two families rather than two individuals; hence difficulties or conflict between a husband and wife are regarded as a community rather than a private matter.166 In South Sudan, young women tend to marry around the age of 18 years, while young men may marry between the ages of 20 and 25.167 In the Dinka tribe a marriage cannot take place unless the woman herself is willing, although she may be pressured to select the most suitable candidate.168 When a couple marries traditionally in Sudan no official marriage

documents are signed, but the groom’s family pays a dowry to the bride’s family (paid in cattle).169 However, in Christian wedding ceremonies in South Sudan the couple will sign a marriage certificate, witnessed by a priest. The marriage is then endorsed, in some cases, by the Sudanese Government.170 Marriage in South Sudan can be complicated because the wider family is involved.171

In some cases, ‘Levirate’ marriages are also practiced by Dinka people, following the concept that families marry. In effect, it is understood that on a man’s passing, his wife will be married to his brother, thereby retaining the family connection.172

In the Shilluk tribe there may be two wedding ceremonies, one usually held in a church and the second a traditional ceremony where elders sit and discuss the dowry and give the couple their blessings.173

When a woman marries she leaves her own family and her husband’s family becomes her new family.174

Arranged and polygamous marriages continue to exist in South Sudan, which poses potential difficulties in Australia, as polygamous marriages are neither recognised nor allowed. Participants indicated that it is not unusual for a South Sudanese man to have three wives and sometimes may even have up to 10 wives.175 The number of wives a man may marry depends on his wealth; in some cases,


170 Springvale Monash Legal Service Inc., Focus Group 4 (2007)


172 Levirate marriage as described by Akechak, A., Leitch, R. and Vandewint, C. A Study of Customary Law in Contemporary Southern Sudan, (2004) World Vision International and the South Secretariat of Legal and Constitutional Affairs, 21.



175 Springvale Monash Legal Service Inc., Focus Group 5 (2007). 53

he must give his bride’s family between 50 to 100 head of cattle in the form of a dowry, depending on the social status of the bride’s family.176

divorce

In Sudan, it is possible to separate and obtain a divorce; it is, however, very rare, due to fear of the relationship between families breaking down. Because of the agreement between the two families, a woman must obtain ‘support from her family’ for a divorce.177 However, Dinka participants of the women’s focus group stated that both a husband and wife may request a divorce.178 Usually, tribal elders will convene to discuss how they can resolve the matter, with the primary goal of maintaining the union. If both parties agree to separate, they can do so with or without going to court.179 A court would usually ask a wife to return to her husband, although if she is definitely unwilling, a divorce may be granted. Children may remain with their mother if they are young, however if they are older they must remain with the father. This age groups vary between cultural groups; in some groups, the children will remain with the father if they are three years or older, and in others, they will remain only if they are above the age of seven.180 The number of cattle returned will depend on the number of children, regardless of the sex of the child.181 Adultery by a wife is grounds for divorce in South Sudan.182

Where a separation occurs, cattle must be returned to the respective family.183 The complex logistics of returning a dowry often cause severe friction within families and strongly militates against divorce.184 Often divorce is the last resort if families cannot resolve the matter.185

Marriage in Australia, in most cases, is not viewed as a binding agreement between families, with the decision to marry (and divorce) remaining within the domain of the husband and wife. Marriage and divorce in Australia are therefore not as likely to be fraught with familial issues as they are in South Sudan.186 Further, the use of the dowry (essentially a financial contract between the families) is not an Australian custom. Therefore, obtaining a divorce in Australia is generally less complex and difficult than in South Sudan, as the financial and social implications are generally limited to the husband and wife. The considerable differences in marriage and divorce are in many cases problematic, with the ease of obtaining a divorce having significant ramifications for South Sudanese families in Australia, and also, for family members back in Sudan. The significant differences in the structure of the family, the expectations of marriage, divorce and the roles of responsibilities of families, between Australia and South Sudan, continue to cause some friction and confusion for South Sudanese Victorians.187


177 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, 36., see also Springvale Monash Legal Service Inc., Focus Group 1 (2006) and Focus Group 2 (2006).



180 Springvale Monash Legal Service Inc. Consulation 9 (2006), Consultation 16 (2007), Focus Group 3 (2006) and Focus Group 4 (2007).


182 Johnson, Douglas, ‘Bor-Duk District’ in C.A Willis (ed.), The Upper Nile Province handbook: A Report on Peoples and Government in the Southern Sudan 1931 (1st ed, 1995), 8.


54


he must give his bride’s family between 50 to 100 head of cattle in the form of a dowry, depending on the social status of the bride’s family.176

divorce

In Sudan, it is possible to separate and obtain a divorce; it is, however, very rare, due to fear of the relationship between families breaking down. Because of the agreement between the two families, a woman must obtain ‘support from her family’ for a divorce.177 However, Dinka participants of the women’s focus group stated that both a husband and wife may request a divorce.178 Usually, tribal elders will convene to discuss how they can resolve the matter, with the primary goal of maintaining the union. If both parties agree to separate, they can do so with or without going to court.179 A court would usually ask a wife to return to her husband, although if she is definitely unwilling, a divorce may be granted. Children may remain with their mother if they are young, however if they are older they must remain with the father. This age groups vary between cultural groups; in some groups, the children will remain with the father if they are three years or older, and in others, they will remain only if they are above the age of seven.180 The number of cattle returned will depend on the number of children, regardless of the sex of the child.181 Adultery by a wife is grounds for divorce in South Sudan.182

Where a separation occurs, cattle must be returned to the respective family.183 The complex logistics of returning a dowry often cause severe friction within families and strongly militates against divorce.184 Often divorce is the last resort if families cannot resolve the matter.185

Marriage in Australia, in most cases, is not viewed as a binding agreement between families, with the decision to marry (and divorce) remaining within the domain of the husband and wife. Marriage and divorce in Australia are therefore not as likely to be fraught with familial issues as they are in South Sudan.186 Further, the use of the dowry (essentially a financial contract between the families) is not an Australian custom. Therefore, obtaining a divorce in Australia is generally less complex and difficult than in South Sudan, as the financial and social implications are generally limited to the husband and wife. The considerable differences in marriage and divorce are in many cases problematic, with the ease of obtaining a divorce having significant ramifications for South Sudanese families in Australia, and also, for family members back in Sudan. The significant differences in the structure of the family, the expectations of marriage, divorce and the roles of responsibilities of families, between Australia and South Sudan, continue to cause some friction and confusion for South Sudanese Victorians.187


184 Akechak, A., Leitch, R. and Vandewint, C. A Study of Customary Law in Contemporary Southern Sudan, (2004) World Vision International and the South Secretariat of Legal and Constitutional Affairs,, 21



187 Springvale Monash Legal Service Inc., Focus Group 1 (2006), Focus Group 3 (2006), Consultation 7 (2006), Consultation 15 (2007) and Consultation 16 (2007).

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Family Problems and disputes: Sudan vs. Australia

A major point of difference between South Sudan and Australia is the way in which family problems and disputes are resolved.188 Families in South Sudan go to courts only as a last resort, preferring to sort out any problems they have within their family and community.189 There may be a tribunal with community elders or mediators to help resolve family disputes and encourage reconciliation. Police will only be called if the dispute cannot be resolved.190

Participants indicated that in cases of family violence, a couple may separate temporarily to enable time for reconciliation, although in cases where physical violence continues, the aggressor may be confronted by elders, or by members of their own or their spouse’s family.191 If the violence continues then the matter may be taken to court and the court may issue a warning.192 In South Sudan physical violence within the family can occur, often without fear of police reprisal, whereas in Victoria the law protects the aggrieved family member, most often, a woman. Intervention orders do not exist in Sudan.193

Many male participants stated that the interference of the Victorian police in family issues is contrary to the way in which disputes are usually resolved in their community.194 In contrast, many female participants were of the opinion that the Victorian law protects their rights. It is apparent that many South Sudanese women in Victoria appreciate

the legal rights and protections that they do not enjoy in South Sudan.195

Due to the significant differences in culture and laws relating to the family, South Sudanese Victorians often have difficulty understanding Australian family law. It was noted in one of our consultations that it would be better if migrants were provided this type of information on arrival, so that they would have a better understanding of the rules and laws in Australia.196

driving regulations, Licensing and Public transport

Driving and the regulation of motor vehicles in Victoria both appear to be problematic for some South Sudanese Victorians. In rural areas of South Sudan, people rarely come across cars, let alone laws to regulate their use.197 Further, South Sudanese Victorians may not understand the need to hold a driver’s license.198 Driving in South Sudan tends to be restricted to the wealthy, so most will have little experience in operating a motor vehicle.199 Those who do will be unfamiliar with the high level of regulation involved in owning a car and driving in Victoria. The impact on those who contravene Victorian law is often disproportionate to the rest of the community as for instance, fines will have a greater impact on many South Sudanese Victorians who may have limited income. Also, in some South Sudanese families, there may only be one individual with a licence so the loss

188 Springvale Monash Legal Service Inc., Consulation 1 (2006) and Focus Group 1 (2006).


190 Springvale Monash Legal Service Inc., Consulation 2 (2006), Focus Group 3 (2006), and Focus Group 5 (2007).




194 Springvale Monash Legal Service Inc., Consultation 16 (2007) and Focus Group 3 (2006)


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Family Problems and disputes: Sudan vs. Australia

A major point of difference between South Sudan and Australia is the way in which family problems and disputes are resolved.188 Families in South Sudan go to courts only as a last resort, preferring to sort out any problems they have within their family and community.189 There may be a tribunal with community elders or mediators to help resolve family disputes and encourage reconciliation. Police will only be called if the dispute cannot be resolved.190

Participants indicated that in cases of family violence, a couple may separate temporarily to enable time for reconciliation, although in cases where physical violence continues, the aggressor may be confronted by elders, or by members of their own or their spouse’s family.191 If the violence continues then the matter may be taken to court and the court may issue a warning.192 In South Sudan physical violence within the family can occur, often without fear of police reprisal, whereas in Victoria the law protects the aggrieved family member, most often, a woman. Intervention orders do not exist in Sudan.193

Many male participants stated that the interference of the Victorian police in family issues is contrary to the way in which disputes are usually resolved in their community.194 In contrast, many female participants were of the opinion that the Victorian law protects their rights. It is apparent that many South Sudanese women in Victoria appreciate

the legal rights and protections that they do not enjoy in South Sudan.195

Due to the significant differences in culture and laws relating to the family, South Sudanese Victorians often have difficulty understanding Australian family law. It was noted in one of our consultations that it would be better if migrants were provided this type of information on arrival, so that they would have a better understanding of the rules and laws in Australia.196

driving regulations, Licensing and Public transport

Driving and the regulation of motor vehicles in Victoria both appear to be problematic for some South Sudanese Victorians. In rural areas of South Sudan, people rarely come across cars, let alone laws to regulate their use.197 Further, South Sudanese Victorians may not understand the need to hold a driver’s license.198 Driving in South Sudan tends to be restricted to the wealthy, so most will have little experience in operating a motor vehicle.199 Those who do will be unfamiliar with the high level of regulation involved in owning a car and driving in Victoria. The impact on those who contravene Victorian law is often disproportionate to the rest of the community as for instance, fines will have a greater impact on many South Sudanese Victorians who may have limited income. Also, in some South Sudanese families, there may only be one individual with a licence so the loss

195 Springvale Monash Legal Service Inc. Focus Group 5 (2007)

196 Springvale Monash Legal Service Inc., Consultation 6 (2006), Consultation 7 (2006) and Consultation 9 (2006).




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of that licence greatly reduces the mobility of that family unit. Some participants reported feeling that they were being denied licences because of discrimination and that they were aware of no Sudanese person passing their licence test on a first attempt.200 As a result, some may drive without a licence. The expenses involved in getting a licence and registering a vehicle can also be prohibitive, again putting South Sudanese Victorians in contravention of the law.

regulation of driving

Since most South Sudanese Victorians have never driven or owned cars prior to arrival, they often find it difficult to understand driving regulations in Victoria and thus require time to become accustomed to them.201 Although cars are required to be registered in South Sudan, it is generally a once only registration. South Sudanese living in Victoria may also struggle to understand the need to pay for ongoing costs such as car registration renewal and car insurance.202

There is very little road infrastructure in South Sudan, especially in rural areas and refugee camps.203 Although road regulations do exist in South Sudan, and penalties for infringement are severe, they are not widely enforced, firstly as there are very few cars and little traffic congestion,204 and secondly due to the instability resulting from extensive civil war.205

Licensing

South Sudan has been gradually introducing more regulations for motor vehicles, and has recently implemented a licence plate system for motor vehicles.206 There is no ‘L’ and ‘P’ plate system in South Sudan.

It is a requirement that drivers possess a drivers’ licence in South Sudan, and penalties exist for driving without a licence, including prison terms. A licence is obtained by registering with the police and passing a test.207

driving experience and Awareness

Many South Sudanese struggle to comprehend the seriousness of breaching the law, especially for strict liability offences.208 Although most South Sudanese seek to follow the law, there is some confusion about driving requirements in Victoria due to limited driving experience and a lack of understanding about what is required,209 resulting in unwitting breaches of road rules.210 Even where some South Sudanese may in fact understand Victorian road rules and regulations, they may find them difficult to follow due to the relative complexity of the laws.211

Other participants noted that the problem of driving infringements amongst South Sudanese Victorians is not so much due to a lack of education or understanding, but rather the result of varied experiences in different legal systems. For example, a financial penalty resulting




203 Springvale Monash Legal Service Inc., Focus Group 3 (2006) and Consulation 9 (2006).


205 Springvale Monash Legal Service Inc., Focus Group 5 (2007.


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of that licence greatly reduces the mobility of that family unit. Some participants reported feeling that they were being denied licences because of discrimination and that they were aware of no Sudanese person passing their licence test on a first attempt.200 As a result, some may drive without a licence. The expenses involved in getting a licence and registering a vehicle can also be prohibitive, again putting South Sudanese Victorians in contravention of the law.

regulation of driving

Since most South Sudanese Victorians have never driven or owned cars prior to arrival, they often find it difficult to understand driving regulations in Victoria and thus require time to become accustomed to them.201 Although cars are required to be registered in South Sudan, it is generally a once only registration. South Sudanese living in Victoria may also struggle to understand the need to pay for ongoing costs such as car registration renewal and car insurance.202

There is very little road infrastructure in South Sudan, especially in rural areas and refugee camps.203 Although road regulations do exist in South Sudan, and penalties for infringement are severe, they are not widely enforced, firstly as there are very few cars and little traffic congestion,204 and secondly due to the instability resulting from extensive civil war.205

Licensing

South Sudan has been gradually introducing more regulations for motor vehicles, and has recently implemented a licence plate system for motor vehicles.206 There is no ‘L’ and ‘P’ plate system in South Sudan.

It is a requirement that drivers possess a drivers’ licence in South Sudan, and penalties exist for driving without a licence, including prison terms. A licence is obtained by registering with the police and passing a test.207

driving experience and Awareness

Many South Sudanese struggle to comprehend the seriousness of breaching the law, especially for strict liability offences.208 Although most South Sudanese seek to follow the law, there is some confusion about driving requirements in Victoria due to limited driving experience and a lack of understanding about what is required,209 resulting in unwitting breaches of road rules.210 Even where some South Sudanese may in fact understand Victorian road rules and regulations, they may find them difficult to follow due to the relative complexity of the laws.211

Other participants noted that the problem of driving infringements amongst South Sudanese Victorians is not so much due to a lack of education or understanding, but rather the result of varied experiences in different legal systems. For example, a financial penalty resulting


207 Springvale Monash Legal Service Inc., Focus Group 3 (2006) and Focus group 5 (2007).

208 Springvale Monash Legal Service Inc., Consultation 1 (2006), Consultation 3 (2006) and Consultation 13 (2007).




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from breaching Victoria’s road rules may not be a particularly effective deterrent for some South Sudanese Victorians, as they are not familiar with this type of punishment.212 Although road rules may not frequently be enforced in South Sudan, the result of infringement can be quite severe, resulting in up to five months’ imprisonment or confiscation of a motor vehicle, as well as fines or the loss of a licence.213 These penalties are considered harsh in Sudan, whereas fines in Victoria may not be considered particularly harsh, especially when viewed in the context of Victorian living standards.214

Significant and traumatic life experiences mean that some South Sudanese living in Victoria may view breaking road rules, and the consequences, as fairly insignificant. Local community elders have commented that many South Sudanese have come from war-torn areas where there was little rule of law, and stressed the importance of providing more education for South Sudanese to assist them integrate into Victorian society and better understand our legal system.215

drink driving and other driving offences

Drink driving has been identified as an area of concern, by the South Sudanese community as well as Victoria Police and the Transport Accident Commission.216 This issue has been highlighted in the media due to high-profile drink driving cases involving South Sudanese drivers.217

In South Sudan, it is illegal to drive while intoxicated, however this is not strictly regulated. Drivers in South Sudan are not pulled over for random alcohol breath tests. This type of testing in Australia often takes many South Sudanese by surprise, especially since drinking, in some tribal groups, is not part of traditional South Sudanese culture.218 Other driving offences such as driving without a seatbelt or driving over the speed limit are also common offences by South Sudanese Victorians. Such behaviour does not constitute breaking the law in South Sudan.219

Some participants mentioned that many South Sudanese Victorians feel as though they are being discriminated against in Australia because of their different appearance and distinct culture.220 South Sudanese people have commented that they feel targeted by police and picked on more frequently for driving offences simply due to their appearance.221

It has been indicated that some South Sudanese Victorians find it difficult to acquire information about Victorian regulations due to their lack of literacy in English.222 A number of driver education initiatives for South Sudanese living in Victoria have been implemented and supported through Federal Government funding.223 However, it appears that greater investment into education for South Sudanese drivers is required upon their arrival, and participants indicated a desire that driving and






217 Masanauskas, J., ‘Driving Refugee Safety’, The Herald-Sun (Melbourne) 6 January 2007.


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pt????


from breaching Victoria’s road rules may not be a particularly effective deterrent for some South Sudanese Victorians, as they are not familiar with this type of punishment.212 Although road rules may not frequently be enforced in South Sudan, the result of infringement can be quite severe, resulting in up to five months’ imprisonment or confiscation of a motor vehicle, as well as fines or the loss of a licence.213 These penalties are considered harsh in Sudan, whereas fines in Victoria may not be considered particularly harsh, especially when viewed in the context of Victorian living standards.214

Significant and traumatic life experiences mean that some South Sudanese living in Victoria may view breaking road rules, and the consequences, as fairly insignificant. Local community elders have commented that many South Sudanese have come from war-torn areas where there was little rule of law, and stressed the importance of providing more education for South Sudanese to assist them integrate into Victorian society and better understand our legal system.215

drink driving and other driving offences

Drink driving has been identified as an area of concern, by the South Sudanese community as well as Victoria Police and the Transport Accident Commission.216 This issue has been highlighted in the media due to high-profile drink driving cases involving South Sudanese drivers.217

In South Sudan, it is illegal to drive while intoxicated, however this is not strictly regulated. Drivers in South Sudan are not pulled over for random alcohol breath tests. This type of testing in Australia often takes many South Sudanese by surprise, especially since drinking, in some tribal groups, is not part of traditional South Sudanese culture.218 Other driving offences such as driving without a seatbelt or driving over the speed limit are also common offences by South Sudanese Victorians. Such behaviour does not constitute breaking the law in South Sudan.219

Some participants mentioned that many South Sudanese Victorians feel as though they are being discriminated against in Australia because of their different appearance and distinct culture.220 South Sudanese people have commented that they feel targeted by police and picked on more frequently for driving offences simply due to their appearance.221

It has been indicated that some South Sudanese Victorians find it difficult to acquire information about Victorian regulations due to their lack of literacy in English.222 A number of driver education initiatives for South Sudanese living in Victoria have been implemented and supported through Federal Government funding.223 However, it appears that greater investment into education for South Sudanese drivers is required upon their arrival, and participants indicated a desire that driving and


219 Springvale Monash Legal Service Inc. Focus Group 1 (2006) and Focus Group 3 (2006).

220 Springvale Monash Legal Service Inc. Focus Group 1 (2006) and Focus Group 2 (2006).


222 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, 35, Springvale Monash Legal Service Inc., Consultation 8 (2006) and Focus Group 1 (2006).

223 Masanauskas, J., ‘Crime Trend a Concern’, The Herald Sun, 2 November 2005. 61

licensing laws be taught in community centres and as part of high school education at this time.224

Public transport

Public transport is a common form of transportation in South Sudan, since very few people own cars. People also often travel by foot, and it is not unusual for people to walk several days to reach their destination.225 The transport system is not regulated by an automated ticketing service in South Sudan. Commuters pay once they get on a bus or train and drivers are usually in charge of the service that is provided.226

It was commented that the transport system in Australia is more safe and reliable than in South Sudan.227 Young South Sudanese Victorians also commented that the public transport system in Australia is much more regulated than in South Sudan. Whilst some have adapted well, others have found the ticketing system here confusing.228 It was also noted that South Sudanese Victorians often do not understand the extensive powers of ticket inspectors, and due to negative past experiences with authority figures, they may demonstrate reticence to communicate openly with them.229 This can be exacerbated by transit inspectors targeting South Sudanese youth.

consumer Law

Many South Sudanese Victoria come from highly agricultural societies in rural South Sudan.230 Because of different life experiences, South Sudanese Victorians often do not understand the terms and conditions of contracts they enter into. Again, a lack of English often exacerbates the misunderstandings.231 As such, it has been found that some South Sudanese Victorians experience difficulty understanding consumer law.232

For example, there have been cases of some South Sudanese Victorians purchasing or starting small businesses or entering retail leases without completely understanding the transaction. The consequences of entering overpriced or unfair transactions have been devastating for particular South Sudanese, resulting in them working for years with very little return.233 South Sudanese may also not understand other rights and duties they have under contracts, such as the concept of cooling-off periods.234

Financial transactions

Financial transactions in South Sudan are usually on-the-spot cash payments or a trading of goods or services, often involving cattle.235 For many tribal groups in South Sudan, including the Nuer and Dinka tribes, cattle are of primary importance in their economic and social lives.236 Banks and credit card facilities are not available, particularly in



232 Springvale Monash Legal Service Inc., Consultation 14 (2007) and Consultation 15 (2007).



235 Johnson, Douglas (ed.), Governing the Nuer: Documents by Percy Coriat on Nuer History and Ethnography 1922-1931, (1993), 29.









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licensing laws be taught in community centres and as part of high school education at this time.224

Public transport

Public transport is a common form of transportation in South Sudan, since very few people own cars. People also often travel by foot, and it is not unusual for people to walk several days to reach their destination.225 The transport system is not regulated by an automated ticketing service in South Sudan. Commuters pay once they get on a bus or train and drivers are usually in charge of the service that is provided.226

It was commented that the transport system in Australia is more safe and reliable than in South Sudan.227 Young South Sudanese Victorians also commented that the public transport system in Australia is much more regulated than in South Sudan. Whilst some have adapted well, others have found the ticketing system here confusing.228 It was also noted that South Sudanese Victorians often do not understand the extensive powers of ticket inspectors, and due to negative past experiences with authority figures, they may demonstrate reticence to communicate openly with them.229 This can be exacerbated by transit inspectors targeting South Sudanese youth.

consumer Law

Many South Sudanese Victoria come from highly agricultural societies in rural South Sudan.230 Because of different life experiences, South Sudanese Victorians often do not understand the terms and conditions of contracts they enter into. Again, a lack of English often exacerbates the misunderstandings.231 As such, it has been found that some South Sudanese Victorians experience difficulty understanding consumer law.232

For example, there have been cases of some South Sudanese Victorians purchasing or starting small businesses or entering retail leases without completely understanding the transaction. The consequences of entering overpriced or unfair transactions have been devastating for particular South Sudanese, resulting in them working for years with very little return.233 South Sudanese may also not understand other rights and duties they have under contracts, such as the concept of cooling-off periods.234

Financial transactions

Financial transactions in South Sudan are usually on-the-spot cash payments or a trading of goods or services, often involving cattle.235 For many tribal groups in South Sudan, including the Nuer and Dinka tribes, cattle are of primary importance in their economic and social lives.236 Banks and credit card facilities are not available, particularly in














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rural South Sudan. Many South Sudanese Victorians may therefore have a lack of experience with and knowledge of concepts such as credit transactions, late payments or charges. As such, they often enter into contracts for products or services they cannot afford, or agree to abide by terms and conditions they do not understand.237

real estate transactions

South Sudanese Victorians often face difficulties in buying or renting property. There is extensive regulation of real estate transactions in Australia, about which they may be unfamiliar. For example, some South Sudanese Victorians may not initially understand the concept of a bond or be aware of their rental rights.238 In South Sudan, rental agreements are negotiated directly between landlord and tenant, and tend to be more flexible compared with the agency agreements which are common in Australia.

utilities, Services and Payment of Bills

A large proportion of South Sudanese Victorians did not have utilities such as electricity, gas or running water connected to their homes in South Sudan. As a result, some unfamiliar with the requirement to pay for such utilities in Victoria, or processes by which to do so. Many have found it difficult to pay bills, especially those with less education or experience.239 In South Sudan, many of these services are not available, or are provided at no cost if they are available. If payment is required, the method of payment may involve goods and services, rather than money, as most South Sudanese Victorians earn very little income. Further they are often unaware of how expensive utilities are in Victoria.240

Financial counsellors have suggested that some South Sudanese Victorians may have trouble understanding utility contracts, particularly since these are entered into by performance (through the provision and use of services) without necessarily signing a contract. This means that they will sign a contract for the use of specific utilities but the fee periodically charged depends on usage, and therefore varies between payment periods. South Sudanese Victorians may find this to be abstract and so have a limited understanding of the contract.241

Financial hardship

Furthermore, even if the contract entered into is understood, meeting repayment deadlines is a significant issue amongst South Sudanese Victorians. Financial hardship is a common problem, for a variety of reasons, resulting in a diminished capacity for self support.242

For example, many South Sudanese refugees arriving on a sponsored visa bear a large initial debt for their airfares to reach Australia, and often they must start repaying this upon arrival.243 In addition to supporting themselves, many South Sudanese Victorians bear the financial burden of sending regular remittances to family and relatives living in South Sudan or refugee camps. Remittances are sent out of a particularly strong sense of expectation and obligation to do so, as those living Australia are perceived to be in a financially comfortable and priveledged position.244

Some South Sudanese families depend on Centrelink payments and often find it difficult to comprehend the various requirements. South Sudanese families tend to be






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rural South Sudan. Many South Sudanese Victorians may therefore have a lack of experience with and knowledge of concepts such as credit transactions, late payments or charges. As such, they often enter into contracts for products or services they cannot afford, or agree to abide by terms and conditions they do not understand.237

real estate transactions

South Sudanese Victorians often face difficulties in buying or renting property. There is extensive regulation of real estate transactions in Australia, about which they may be unfamiliar. For example, some South Sudanese Victorians may not initially understand the concept of a bond or be aware of their rental rights.238 In South Sudan, rental agreements are negotiated directly between landlord and tenant, and tend to be more flexible compared with the agency agreements which are common in Australia.

utilities, Services and Payment of Bills

A large proportion of South Sudanese Victorians did not have utilities such as electricity, gas or running water connected to their homes in South Sudan. As a result, some unfamiliar with the requirement to pay for such utilities in Victoria, or processes by which to do so. Many have found it difficult to pay bills, especially those with less education or experience.239 In South Sudan, many of these services are not available, or are provided at no cost if they are available. If payment is required, the method of payment may involve goods and services, rather than money, as most South Sudanese Victorians earn very little income. Further they are often unaware of how expensive utilities are in Victoria.240

Financial counsellors have suggested that some South Sudanese Victorians may have trouble understanding utility contracts, particularly since these are entered into by performance (through the provision and use of services) without necessarily signing a contract. This means that they will sign a contract for the use of specific utilities but the fee periodically charged depends on usage, and therefore varies between payment periods. South Sudanese Victorians may find this to be abstract and so have a limited understanding of the contract.241

Financial hardship

Furthermore, even if the contract entered into is understood, meeting repayment deadlines is a significant issue amongst South Sudanese Victorians. Financial hardship is a common problem, for a variety of reasons, resulting in a diminished capacity for self support.242

For example, many South Sudanese refugees arriving on a sponsored visa bear a large initial debt for their airfares to reach Australia, and often they must start repaying this upon arrival.243 In addition to supporting themselves, many South Sudanese Victorians bear the financial burden of sending regular remittances to family and relatives living in South Sudan or refugee camps. Remittances are sent out of a particularly strong sense of expectation and obligation to do so, as those living Australia are perceived to be in a financially comfortable and priveledged position.244

Some South Sudanese families depend on Centrelink payments and often find it difficult to comprehend the various requirements. South Sudanese families tend to be

241 Springvale Monash Legal Service Inc., Consultation 14 (2007), Consultation 15 (2007) and Focus Group 1 (2006).



244 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, 29, Springvale Monash Legal Service Inc., Consultation 1 (2006).

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large with many children, and sometimes up to 10 people can be living in one household.245 The money earned by South Sudanese families is often insufficient to sustain their daily living.246

Substance use

Sudan has not been known to host major drug trafficking,247 and drugs such as heroin are not readily available in South Sudan. The only drug produced in Sudan is marijuana, grown in the eastern part of the country.248 In some parts of Sudan, marijuana use is illegal and can incur up to a six-month jail term or flogging. Tobacco is permitted in South Sudan.249

South Sudan is a predominantly Christian community, and people are able to buy, consume and make alcohol. There are also designated drinking areas (such as bars), and drinking in public spaces is not considered an offence nor is it regulated by police.250 Where the behaviour of a person due to drinking results in harm caused to another, a local chief will judge that individual’s behaviour and may issue a financial penalty or imprisonment.251

Although alcohol consumption is legal in South Sudan, it is traditionally limited to older adult males who are married, and as such young people and women are not traditionally permitted to drink and may be perceived

unfavourably by their peers for doing so.252 However, upon arrival in Australia problems of excess alcohol consumption among South Sudanese youth have been reported, due to the relative ease of obtaining alcohol and a more relaxed attitude to drinking in Australia.253 The greatest cause of concern, however, appears not so much to be drinking amongst youth but rather amongst older men, especially when this is combined with driving.254

The life experience of most South Sudanese prior to arrival is vastly different from what they will experience in Australia. As such, there is a strong need to recognise the social and cultural context from which South Sudanese have arrived. The cumulative effect of experiencing civil war, the trauma of living through refugee camps without adequate healthcare and education, family breakdown, and the often distressing process of resettlement and integration upon arrival results in a myriad of social, cultural and legal difficulties for the South Sudanese community.

The result is an inevitable struggle to adapt to the various aspects of law and society in Australia. These issues are all exacerbated by language difficulties, as English is a second or even third language for most South Sudanese people.

245 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, 29 and Springvale Monash Legal Service Inc., Consultation 1 (2006).


247 Tartter, Jean R in Helen Capin Metz (ed) Sudan: A Country Study (4th ed, 1991), 274.

248 Tartter, Jean R in Helen Capin Metz (ed) Sudan: A Country Study (4th ed, 1991), 274.





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large with many children, and sometimes up to 10 people can be living in one household.245 The money earned by South Sudanese families is often insufficient to sustain their daily living.246

Substance use

Sudan has not been known to host major drug trafficking,247 and drugs such as heroin are not readily available in South Sudan. The only drug produced in Sudan is marijuana, grown in the eastern part of the country.248 In some parts of Sudan, marijuana use is illegal and can incur up to a six-month jail term or flogging. Tobacco is permitted in South Sudan.249

South Sudan is a predominantly Christian community, and people are able to buy, consume and make alcohol. There are also designated drinking areas (such as bars), and drinking in public spaces is not considered an offence nor is it regulated by police.250 Where the behaviour of a person due to drinking results in harm caused to another, a local chief will judge that individual’s behaviour and may issue a financial penalty or imprisonment.251

Although alcohol consumption is legal in South Sudan, it is traditionally limited to older adult males who are married, and as such young people and women are not traditionally permitted to drink and may be perceived

unfavourably by their peers for doing so.252 However, upon arrival in Australia problems of excess alcohol consumption among South Sudanese youth have been reported, due to the relative ease of obtaining alcohol and a more relaxed attitude to drinking in Australia.253 The greatest cause of concern, however, appears not so much to be drinking amongst youth but rather amongst older men, especially when this is combined with driving.254

The life experience of most South Sudanese prior to arrival is vastly different from what they will experience in Australia. As such, there is a strong need to recognise the social and cultural context from which South Sudanese have arrived. The cumulative effect of experiencing civil war, the trauma of living through refugee camps without adequate healthcare and education, family breakdown, and the often distressing process of resettlement and integration upon arrival results in a myriad of social, cultural and legal difficulties for the South Sudanese community.

The result is an inevitable struggle to adapt to the various aspects of law and society in Australia. These issues are all exacerbated by language difficulties, as English is a second or even third language for most South Sudanese people.


253 Marshall, M., ‘No tribal gangs: Police’, Oakleigh Monash Leader/Springvale Dandenong Leader (Melbourne), 17 January 2007.


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increased community education and ongoing Assistance

There is a fundamental need for increased community education and ongoing assistance for those South Sudanese people who have resettled in Australia. Difficulties encountered by them are often due to a lack of awareness and understanding of the legal system and other social norms. An increased provision of language and educational services to the South Sudanese community is essential, as well as education to increase awareness of the existence of other service providers, especially in view of the fact that the South Sudanese community is the fastest growing community in Victoria.255

Adequate opportunities for the South Sudanese community to learn Australian laws over a long period of time are necessary if they are to understand their rights and obligations under the Victorian legal system. Community education programs to assist South Sudanese Victorians should incorporate areas such as driver awareness, consumer rights, family law, financial counselling and mental health issues.

It would also be beneficial to further build and support South Sudanese community organisations and other grassroots organisations to facilitate greater community cohesion and mutual assistance within the South Sudanese population. The South Sudanese community requires increased support to be able to effectively settle into Australian society, and accordingly to assist new arrivals in successful resettlement.

increased Awareness and training for Service Providers

In addition to ongoing education and support services for South Sudanese Victorians, it is vital for the various service providers in Victoria to increase their awareness of the context and background of the South Sudanese community. We applaud the recent efforts of the Victoria Police Multicultural Liaison Unit256 and other representatives from local agencies who have taken the initiative to visit South Sudan in order to better understand the realities from which many South Sudanese have escaped. The trauma resulting from living in refugee camps and experiences of torture and the lengthy process of resettlement often results in numerous difficulties for the South Sudanese when adjusting to life in Australia. Key service providers, including settlement services, the justice system and community workers, need to develop a greater understanding of the experiences of the South Sudanese population in order to ascertain their needs and to develop and maintain positive mutual relationships with this growing community.

Suggested Areas of Further research

As this report is not intended to be an exhaustive account of the issues faced by the South Sudanese community, we wish to make mention of several areas that have not been covered but which are worthy of further research.

Areas of possible further research may include the following:

•Issuesfacedintheeducation system in Australia by both children and adult South Sudanese,

255 City of Greater Dandenong, Social Profiles: Sudanese Residents, <http://www.greaterdandenong.com/Resources/ SiteDocuments/doc36096.pdf> at 7 November 2007.

Conclusion

Conclusion

68


increased community education and ongoing Assistance

There is a fundamental need for increased community education and ongoing assistance for those South Sudanese people who have resettled in Australia. Difficulties encountered by them are often due to a lack of awareness and understanding of the legal system and other social norms. An increased provision of language and educational services to the South Sudanese community is essential, as well as education to increase awareness of the existence of other service providers, especially in view of the fact that the South Sudanese community is the fastest growing community in Victoria.255

Adequate opportunities for the South Sudanese community to learn Australian laws over a long period of time are necessary if they are to understand their rights and obligations under the Victorian legal system. Community education programs to assist South Sudanese Victorians should incorporate areas such as driver awareness, consumer rights, family law, financial counselling and mental health issues.

It would also be beneficial to further build and support South Sudanese community organisations and other grassroots organisations to facilitate greater community cohesion and mutual assistance within the South Sudanese population. The South Sudanese community requires increased support to be able to effectively settle into Australian society, and accordingly to assist new arrivals in successful resettlement.

increased Awareness and training for Service Providers

In addition to ongoing education and support services for South Sudanese Victorians, it is vital for the various service providers in Victoria to increase their awareness of the context and background of the South Sudanese community. We applaud the recent efforts of the Victoria Police Multicultural Liaison Unit256 and other representatives from local agencies who have taken the initiative to visit South Sudan in order to better understand the realities from which many South Sudanese have escaped. The trauma resulting from living in refugee camps and experiences of torture and the lengthy process of resettlement often results in numerous difficulties for the South Sudanese when adjusting to life in Australia. Key service providers, including settlement services, the justice system and community workers, need to develop a greater understanding of the experiences of the South Sudanese population in order to ascertain their needs and to develop and maintain positive mutual relationships with this growing community.

Suggested Areas of Further research

As this report is not intended to be an exhaustive account of the issues faced by the South Sudanese community, we wish to make mention of several areas that have not been covered but which are worthy of further research.

Areas of possible further research may include the following:

•Issuesfacedintheeducation system in Australia by both children and adult South Sudanese,

256 ‘Officers see first-hand poverty in Sudan’, Oakleigh Monash/Springvale Dandenong Leader (Melbourne) 6 June 2007; Collins, S., ‘Africa trip to help plug gaps between refugees, police’, The Age (Melbourne) 11 April 2007.

69

particularly in the context of having experienced disruption or received very little education

prior to arrival. It is noteworthy that those representatives who travelled to South Sudan in

early 2007 commented that school times are sporadic and usually reliant on weather, with

teachers often having an education level equivalent, in Australian standards, to that of students from

year three or four;257

•Mentalhealthissuesresultingfromexperiences of war, living in refugee camps, trauma and the

process of resettlement; and

•Opportunitiesandobstaclesencounteredinemployment and training and recognition of

overseas qualifications.

We welcome further initiatives by community bodies and service providers to conduct research on the above issues in order to ensure that quality services are being provided to South Sudanese Victorians and also to increase awareness of these issues among the broader community.

South Sudanese history and Political Systemrecommendations

•GreaterawarenessofthecircumstancesinSudanfrom which many South Sudanese Victorians

have escaped;

•Servicesneedtobeprovidedatalevelconsistent with the fact that the South Sudanese population is

the fastest growing ethnic community in Victoria;

•Furthereducationforpolicymakers,servicedeliverers and the judiciary regarding the

background and experiences of the South Sudanese people; and

•SouthSudaneseVictoriansshouldberespectfullyconsulted and subsequently involved in the development of policy and programs which impact on them.

human rights

recommendations

•Provisionofeducationontheapplicationofthe Victorian Charter of Human Rights and Responsibilities Act (2006);

•ProvisionofjobtrainingprogramstoSouth Sudanese women to enable them to participate more actively in the Victorian community; and

•ThesettlementprograminAustralia(IHSS)maynot always meet the needs of the South Sudanese population. There is a need to tailor resettlement programs; in particular, the delivery of language-

257 Presentation by Michael Hennessey, South Sudan Development Agency, (held at the South Eastern Region Migrant Resource Centre, Melbourne), 13 June 2007.

Conclusion

70


particularly in the context of having experienced disruption or received very little education

prior to arrival. It is noteworthy that those representatives who travelled to South Sudan in

early 2007 commented that school times are sporadic and usually reliant on weather, with

teachers often having an education level equivalent, in Australian standards, to that of students from

year three or four;257

•Mentalhealthissuesresultingfromexperiences of war, living in refugee camps, trauma and the

process of resettlement; and

•Opportunitiesandobstaclesencounteredinemployment and training and recognition of

overseas qualifications.

We welcome further initiatives by community bodies and service providers to conduct research on the above issues in order to ensure that quality services are being provided to South Sudanese Victorians and also to increase awareness of these issues among the broader community.

South Sudanese history and Political Systemrecommendations

•GreaterawarenessofthecircumstancesinSudanfrom which many South Sudanese Victorians

have escaped;

•Servicesneedtobeprovidedatalevelconsistent with the fact that the South Sudanese population is

the fastest growing ethnic community in Victoria;

•Furthereducationforpolicymakers,servicedeliverers and the judiciary regarding the

background and experiences of the South Sudanese people; and

•SouthSudaneseVictoriansshouldberespectfullyconsulted and subsequently involved in the development of policy and programs which impact on them.

human rights

recommendations

•Provisionofeducationontheapplicationofthe Victorian Charter of Human Rights and Responsibilities Act (2006);

•ProvisionofjobtrainingprogramstoSouth Sudanese women to enable them to participate more actively in the Victorian community; and

•ThesettlementprograminAustralia(IHSS)maynot always meet the needs of the South Sudanese population. There is a need to tailor resettlement programs; in particular, the delivery of language-

71

Findings and Recommendations

based programs to the needs of newly arrived South Sudanese Victorians.

Sudanese customary Law and victorian Law

recommendations

•SouthSudaneseVictoriansshouldbegivenappropriate opportunities to learn about the Australian and Victorian legal systems. For example, clear publications in native languages should be distributed to newly arrived South Sudanese people and ongoing reflexive education programs instated. A multi-tiered approach could be adopted, whereby information regarding laws necessary for standard day-to-day civil activity is first provided to newly arrived South Sudanese people and then, in consultation with South Sudanese Victorians, further detail could be provided on selected areas of the law;

•Theseprogramsshouldillustratethedifferencesinenforcement, rights and obligations for Victorian citizens and those living in South Sudan;

•Victorianpolice,magistratesandcommunityworkers should be encouraged to develop a good understanding of South Sudanese culture, and subsequently build strong relations with the local community; and

•Whilethisresearchacknowledgesthatignoranceof the law is no defence, magistrates in sentencing should consider the experiences of South Sudanese Victorians. Many of these people may interpret Victorian law in a manner which differs considerably from the ideal interpretation of both Australian born citizens and those originating from other countries

with similar legal systems. Any penalties imposed should include components relevant to the needs of South Sudanese Victorians, such as attending educational programs on Victorian road rules or family-based programs.

Family Law

recommendations

•Furtherresearch,inconsultationwithSouthSudaneseVictorians, should be conducted on the structure of traditional families, including the roles of each member, in order to develop strategies which are both inclusive and respectful of traditional family practices yet adhere to Australian family law. This paper is premised on the value of broad consultation being a pre-requisite for effective, humane and good policy, and that subsequently informed practice will elicit the best results for all involved. Policy and legislation related broadly to families, marriage and divorce, as well as various protection mechanisms against family violence, offered under the state and federal legal frameworks in Australia, will be more effective and relevant if those in authority are aware of the implications of their decisions, not just on South Sudanese Victorians, but on any minority group.

Justice System and Police

recommendations

•Thedevelopmentandexpansionofexisting programs to encourage positive interaction between

members of the South Sudanese population (especially youth) and members of the Victorian Police. For example, basketball games, round table discussions and police visits to Sudanese


72


based programs to the needs of newly arrived South Sudanese Victorians.

Sudanese customary Law and victorian Law

recommendations

•SouthSudaneseVictoriansshouldbegivenappropriate opportunities to learn about the Australian and Victorian legal systems. For example, clear publications in native languages should be distributed to newly arrived South Sudanese people and ongoing reflexive education programs instated. A multi-tiered approach could be adopted, whereby information regarding laws necessary for standard day-to-day civil activity is first provided to newly arrived South Sudanese people and then, in consultation with South Sudanese Victorians, further detail could be provided on selected areas of the law;

•Theseprogramsshouldillustratethedifferencesinenforcement, rights and obligations for Victorian citizens and those living in South Sudan;

•Victorianpolice,magistratesandcommunityworkers should be encouraged to develop a good understanding of South Sudanese culture, and subsequently build strong relations with the local community; and

•Whilethisresearchacknowledgesthatignoranceof the law is no defence, magistrates in sentencing should consider the experiences of South Sudanese Victorians. Many of these people may interpret Victorian law in a manner which differs considerably from the ideal interpretation of both Australian born citizens and those originating from other countries

with similar legal systems. Any penalties imposed should include components relevant to the needs of South Sudanese Victorians, such as attending educational programs on Victorian road rules or family-based programs.

Family Law

recommendations

•Furtherresearch,inconsultationwithSouthSudaneseVictorians, should be conducted on the structure of traditional families, including the roles of each member, in order to develop strategies which are both inclusive and respectful of traditional family practices yet adhere to Australian family law. This paper is premised on the value of broad consultation being a pre-requisite for effective, humane and good policy, and that subsequently informed practice will elicit the best results for all involved. Policy and legislation related broadly to families, marriage and divorce, as well as various protection mechanisms against family violence, offered under the state and federal legal frameworks in Australia, will be more effective and relevant if those in authority are aware of the implications of their decisions, not just on South Sudanese Victorians, but on any minority group.

Justice System and Police

recommendations

•Thedevelopmentandexpansionofexisting programs to encourage positive interaction between

members of the South Sudanese population (especially youth) and members of the Victorian Police. For example, basketball games, round table discussions and police visits to Sudanese

73

communities. This recomendation is applicable to any newly arrived migrant group;

•Theprovisionofeducationandinformationfornewly arrived migrants and refugees on how to access and effectively use complaint mechanisms against government authorities, such as the Equal Opportunity Commission and the Office of Police Integrity; and

•TheencouragementofSouthSudaneseVictorianstoenter positions of authority in the Victorian justice system, such as police officers, lawyers

and interpreters.

driving / road Law

recommendations

•Provisionofgreaterinvestmentindrivereducationprograms to increase awareness of Victorian

road rules and regulations for South Sudanese upon arrival;

•Drivereducationprogramsshouldalsoincludeinformation in the various languages spoken by South Sudanese;

•Increasedawarenessoftherisksandpenaltiesassociated with driving offences, through information brochures and general education in community centres; and

•Subsidiseddrivinglessonsfornewlyarrivedpeoplewho are unable to access family members or friends with a full drivers’ licence.


74


consumer Law

recommendations

•Increasedawarenessandaccesstoinformationofconsumer rights and obligations. This could be achieved by producing information brochures on consumer law, as well as through general education in community centres and resettlement programs;

•Increasedprovisionofconsumeradviceon arrival, and financial counselling services to assist

South Sudanese individuals, families and small businesses; and

•Incorporationofawarenessofcommontermsandphrases used in consumer transactions into existing training on arrival.

Substance use

recommendations

•Provisionofcommunityeducationprogramsregarding alcohol and substance abuse.

75

Addis Ababa Agreement: A series of compromises in 1972, aimed at appeasing the leaders of the insurgency in South Sudan. In 1983, the agreement was cut off by the former president Jaafar Nimeiri when he imposed Shari’ah law.

Adversarial: approach to dispute resolution where each party argues its case. Each argument will be determined in either one or the other party’s favour.

ABS: Australian Bureau of Statistics.

comprehensive Peace Agreement: signed in 2005. It set up a power sharing agreement between Omar Hassan al-Bashir and SPLM/A? and a timetable for elections and a referendum on independence in the South.

diAc: Department of Immigration and Citizenship, Australian Government.

dinka tribe: indigenous people of South Sudan. Since the 10th century the Dinka have inhabited both sides of the White Nile.

dowry: also known as bride wealth, forms part of an exchange between intermarrying families. The groom usually pays it to the bride’s family. It may consist of cattle.

Jaafar nimeiri: First elected president of Sudan in 1971.

international humanitarian Settlement Strategy (ihSS): a settlement support initiative of the Australian Government, designed to support newly arrived humanitarian entrants. Support services provided include case coordination, information and referrals, on arrival reception and assistance, accommodation services and short-term torture and trauma counselling services.

Janjaweed: Arab militia.

John garang: founder of the Sudanese People’s Liberation Movement and Army (SPLM/A).

Jurisdiction: authority expressed by a judicial body over people, places and property. The jurisdiction may be determined according to various criteria and legislative bodies.

iccPr: International Covenant on Civil and Political Rights.

iceScr: International Covenant on Economic, Social and Cultural Rights.

Kakuma camp: Refugee camp in northern Kenya.

Levirate: custom where a widow marries the brother of her deceased husband.

Lieutenant general omar hassan al-Bashir: seized power in 1989 and continues to be in power as the president of Sudan.

nuer tribe: people of South Sudan who live on either side of the River Nile, relocating according to the season.

Polygamy: Marriage in which one partner takes more than one spouse.

SdB: Department of Immigration and Citizenship Settlement Database, Australian Government.

Special humanitarian Program (ShP): for people outside their home country who are subject to substantial discrimination amounting to a gross violation of human rights in their home country. The applications must be supported by a proposer who is an Australian citizen, permanent resident or eligible New Zealand citizen, or an organisation that is based in Australia.

Glossary


76


Addis Ababa Agreement: A series of compromises in 1972, aimed at appeasing the leaders of the insurgency in South Sudan. In 1983, the agreement was cut off by the former president Jaafar Nimeiri when he imposed Shari’ah law.

Adversarial: approach to dispute resolution where each party argues its case. Each argument will be determined in either one or the other party’s favour.

ABS: Australian Bureau of Statistics.

comprehensive Peace Agreement: signed in 2005. It set up a power sharing agreement between Omar Hassan al-Bashir and SPLM/A? and a timetable for elections and a referendum on independence in the South.

diAc: Department of Immigration and Citizenship, Australian Government.

dinka tribe: indigenous people of South Sudan. Since the 10th century the Dinka have inhabited both sides of the White Nile.

dowry: also known as bride wealth, forms part of an exchange between intermarrying families. The groom usually pays it to the bride’s family. It may consist of cattle.

Jaafar nimeiri: First elected president of Sudan in 1971.

international humanitarian Settlement Strategy (ihSS): a settlement support initiative of the Australian Government, designed to support newly arrived humanitarian entrants. Support services provided include case coordination, information and referrals, on arrival reception and assistance, accommodation services and short-term torture and trauma counselling services.

Janjaweed: Arab militia.

John garang: founder of the Sudanese People’s Liberation Movement and Army (SPLM/A).

Jurisdiction: authority expressed by a judicial body over people, places and property. The jurisdiction may be determined according to various criteria and legislative bodies.

iccPr: International Covenant on Civil and Political Rights.

iceScr: International Covenant on Economic, Social and Cultural Rights.

Kakuma camp: Refugee camp in northern Kenya.

Levirate: custom where a widow marries the brother of her deceased husband.

Lieutenant general omar hassan al-Bashir: seized power in 1989 and continues to be in power as the president of Sudan.

nuer tribe: people of South Sudan who live on either side of the River Nile, relocating according to the season.

Polygamy: Marriage in which one partner takes more than one spouse.

SdB: Department of Immigration and Citizenship Settlement Database, Australian Government.

Special humanitarian Program (ShP): for people outside their home country who are subject to substantial discrimination amounting to a gross violation of human rights in their home country. The applications must be supported by a proposer who is an Australian citizen, permanent resident or eligible New Zealand citizen, or an organisation that is based in Australia.

77

SPLM/A: Sudanese People’s Liberation Movement and Army, formed in 1983 by John Garang. Its aim is to establish an independent state in South Sudan.

Statutory court: Judges in such a court are given jurisdiction by statute to interpret particular legislation and impose particular penalties.

tAc: Transport Accident Commission, Victoria.

treaty ratification: a process whereby a country signs an international document twice. The first signature indicates agreement with the written content of the document and the second signature indicates an agreement to be bound by the document at an international level.

treaty incorporation: a process of incorporating a treaty into the domestic legislation of a country, so as to bind that country at the domestic level.

Journal Articles

Hopkins, T., ‘Complaints Against Police Behaviour in Flemington,

Victoria, 2006’. (2007) 32(1) Alternative Law Journal, 9.

Lesch, A.M., ‘Sudan: The Torn Country’ (1999) 98, Current

History 628.

Twining, W., ‘The Restatement of African Customary Law:

A Comment’, (1963) 1(2), The Journal of Modern African

Studies, 221-228.

Udombana, N.J., ‘An African Human Rights Court: A Needful

Duality or a Needless Duplication?’ (2003) 28, Brooklyn Journal of

International Law, 811-862.

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, 150-162.

Books

Crock, ,Mary, Saul, Ben and Dastyari, Azadeh ‘Refugee Outcomes:

Temporary Protection, Permanent Settlement and Removal or

Return’ In Search of Asylum (1st ed, 2006).

Elias T.O., ‘The Problem of Reducing Customary Laws to Writing’,

in Dundes Renteln A. and Dundes A. (eds) Folk Law: Essays in the

Theory and Practice of Lex Non Scripta: Volume 1, (1st ed 1994).

Flynn, Martin, Human Rights in Australia, Treaties, Statutes and

Cases (1st ed, 2003).

Johnson, Douglas (ed.), Governing the Nuer: Documents by Percy

Coriat on Nuer History and Ethnography 1922-1931, (1993).

Glossary

78


SPLM/A: Sudanese People’s Liberation Movement and Army, formed in 1983 by John Garang. Its aim is to establish an independent state in South Sudan.

Statutory court: Judges in such a court are given jurisdiction by statute to interpret particular legislation and impose particular penalties.

tAc: Transport Accident Commission, Victoria.

treaty ratification: a process whereby a country signs an international document twice. The first signature indicates agreement with the written content of the document and the second signature indicates an agreement to be bound by the document at an international level.

treaty incorporation: a process of incorporating a treaty into the domestic legislation of a country, so as to bind that country at the domestic level.

Journal Articles

Hopkins, T., ‘Complaints Against Police Behaviour in Flemington,

Victoria, 2006’. (2007) 32(1) Alternative Law Journal, 9.

Lesch, A.M., ‘Sudan: The Torn Country’ (1999) 98, Current

History 628.

Twining, W., ‘The Restatement of African Customary Law:

A Comment’, (1963) 1(2), The Journal of Modern African

Studies, 221-228.

Udombana, N.J., ‘An African Human Rights Court: A Needful

Duality or a Needless Duplication?’ (2003) 28, Brooklyn Journal of

International Law, 811-862.

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, 150-162.

Books

Crock, ,Mary, Saul, Ben and Dastyari, Azadeh ‘Refugee Outcomes:

Temporary Protection, Permanent Settlement and Removal or

Return’ In Search of Asylum (1st ed, 2006).

Elias T.O., ‘The Problem of Reducing Customary Laws to Writing’,

in Dundes Renteln A. and Dundes A. (eds) Folk Law: Essays in the

Theory and Practice of Lex Non Scripta: Volume 1, (1st ed 1994).

Flynn, Martin, Human Rights in Australia, Treaties, Statutes and

Cases (1st ed, 2003).

Johnson, Douglas (ed.), Governing the Nuer: Documents by Percy

Coriat on Nuer History and Ethnography 1922-1931, (1993).

79

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The Justice System (2006), Department of Justice, Victoria, <http://

www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/

The+Justice+System/> at 28 March 2007

The Victorian Charter of Human Rights and Responsibilities (2006)

Victorian Equal Opportunity & Human Rights Commission <http://

www.equalopportunitycommission.vic.gov.au/human%20rights/

the%20victorian%20charter%20of%20human%20rights%20

and%20responsibilities/default.asp> at 8 July 2007.

Bibliography

82


USAID Support to the Comprehensive Peace Plan (2005) USAid

from the American people <http://www.usaid.gov/locations/sub-

saharan_africa/sudan/countryprofile.html> at 8 July 2007.

Victorian Divorce Rate (2006), Australian Bureau Statistics,

<http://www.abs.gov.au/ausstats/[email protected]/mf/3311.2.55.001>

at 3 May 2007.

What are Human rights? (2008) Office of the High Commissioner

for Human Rights, <http://www.ohchr.org/EN/Issues/Pages/

WhatareHumanRights.aspx>at 10 January 2008.

newspaper Articles

Collins, S., ‘Africa trip to help plug gaps between refugees, police’,

The Age (Melbourne) 11 April 2007

Marshal, M., ‘Mayor: Refugees Ignored’, Dandenong Leader

(Melbourne), 2 April 2007.

Marshall, M., ‘No tribal gangs: Police’, Oakleigh Monash Leader/

Springvale Dandenong Leader (Melbourne), 17 January 2007.

Masanauskas, J., ‘Crime Trend a Concern’, The Herald Sun

(Melbourne) 2 November 2005.

Masanauskas, J., ‘Driving Refugee Safety’, The Herald-Sun

(Melbourne) 6 January 2007.

‘Media reports of rampant Sudanese crime do not accurately reflect

reality’, Oakleigh Monash Leader/Springvale Dandenong Leader

(Melbourne) 18 April 2007.

‘Officers see first-hand poverty in Sudan’, Oakleigh Monash/

Springvale Dandenong Leader (Melbourne) 6 June 2007.

83

Booklets

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.

Speeches

Presentation by Michael Hennessey, South Sudan Development

Agency, (held at the South Eastern Region Migrant Resource Centre,

Melbourne, 13 June 2007).

international documents

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).

SMLS Focus groups and consultations

Consultations:

Springvale Monash Legal Service Inc., Consultation 1 (2006).









Springvale Monash Legal Service Inc., Consultation 10 (2006)








Focus groups:

Springvale Monash Legal Service Inc., Focus Group 1 (2006).





Bibliography

84


Booklets

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.

Speeches

Presentation by Michael Hennessey, South Sudan Development

Agency, (held at the South Eastern Region Migrant Resource Centre,

Melbourne, 13 June 2007).

international documents

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).

SMLS Focus groups and consultations

Consultations:










Springvale Monash Legal Service Inc., Consultation 10 (2006)








Focus groups:






85


87

COMPARATIVE ANALYSIS OF SOUTH SUDANESE CUSTOMARY LAW AND VICTORIAN LAW

SPRINGVALE MONASH LEGAL SERVICE INC.

ABN 96 206 448 228 Reg A 13997D5 Osborne AvenueSpringvale 3171t 03 9562 3144f 03 9562 4534w www.smls.com.au

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