Peter Garrett (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Reconciliation and the Arts) Share this | Hansard source

and that experience above average levels of criminal activity that requires policing? I hear the member say yes. In that case, good. To that extent, citizens of, for example, Wadeye have the right to levels of policing comparable with those of any other community—something that has been conspicuously absent over the entire period of the Northern Territory’s CLP government and also, regrettably, up until today.

The motion also calls on the House to affirm that ‘cultural practice in any community does not lessen that protection’. Where is the evidence that it does any such thing? I refer the member to the Supreme Court of the Northern Territory case of the Queen v James Goutjawuy Gondarra to enable the member to get some first-hand knowledge of how cultural practice can increase and not lessen that protection. In that case the accused was additionally subject to the cultural law processes and practices of his elders and, as a consequence of that, showed remorse and prospective signs of rehabilitation. It is in these cases that cultural practice is a boon and an additional benefit to the legal system, not a deficiency.

I think there has been some confusion over how the law actually operates, and I invite the member for Stirling to contemplate that there is really no such thing as a customary law defence, as has been bandied about recently and which has so energised those whose perceptions have controlled their capacity to reason. I remind the member that the question concerning cultural observation in any case before our courts relates to mitigating circumstances, which in the case of an assault could include provocation, the mental state of the accused and elements of a cultural nature. There is no cultural context, for example, that sanctions child abuse. That fact has been made eminently clear by Aboriginal leaders, men and women across the country in recent times.

The final part of this motion reads that this House reaffirms that ‘human rights override cultural rights’. This is a confusing wording. Did the member advance any instance of cultural rights overriding human rights? Is the member proposing that we should have some form of recognition of human rights in our Constitution—I would be pleased to hear that from a government member opposite—or that we would enact migration laws which specifically upheld human rights as enumerated in the international declaration of human rights and associated instruments? If that is the intent of the member’s motion, then bring it on.

Human rights include the right to practise culture. If the member is concerned at the recent terrible stories of assault in Indigenous communities—as I and many others are, and as the people living in those communities are—then he should reflect on what it is that has brought us to this current state. Speaker after speaker at a forum today in the parliament, entitled ‘Ending violence in Indigenous communities’, made the point time and time again that it is rights and culture that need to be strong. Petrol sniffing, youth suicide and child abuse are products of recent history, symptoms of a bigger problem. They in no way represent Indigenous culture, any more than dropping millions of litres of napalm on Cambodian villagers in the Vietnam War represented Western culture. These actions represent cultural breakdown, and members are confused if they believe the situation can be better comprehended and responded to by lodging motions of this kind in this House.

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