Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Hansard source

I present the explanatory memorandum to this bill. I move:

That this bill be now read a second time.

The Crimes Amendment (Bail and Sentencing) Bill 2006 ensures that all Australians are treated equally under the law and that criminal behaviour cannot be excused or justified by customary practice or cultural law.

At the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities, held here in Canberra last June, the Australian government expressed serious concern about the high level of violence and abuse in Indigenous communities.

Following the summit, we called on all state and territory Labor governments to work with us to ensure that all Australians are equally subject to the law and that all Australians can expect the same protection under the law.

This issue was also tackled by the Prime Minister and state and territory Labor leaders at the July Council of Australian Governments meeting, who agreed that the law’s response to family and community violence and sexual abuse must reflect the seriousness of such crimes.

Criminal behaviour can never, in any form, be excused, justified, authorised, required or rendered less serious because of customary law or cultural practice. Nor has it ever been intended that customary law or cultural practice should be used to aggravate the seriousness of criminal behaviour.

The Australian government firmly rejects the idea that an offender’s cultural background should automatically be considered, when a court is sentencing an offender, so as to mitigate the sentence imposed.

Likewise, in the process of granting bail to an alleged offender, this bill will ensure customary law or cultural practice cannot be used as an excuse that the criminal behaviour concerned is somehow less culpable. All Australians, regardless of their background, will thus be equal before the law.

At the intergovernmental summit in June, the Commonwealth also indicated that it would show leadership and review bail provisions to ensure that adequate protection is given to alleged victims and potential witnesses, especially those who live in remote communities.

Victims and witnesses in remote communities face particular difficulties when alleged offenders are released, and the proposed amendments to the Commonwealth bail provisions will require the impact on such victims and witnesses to be considered in the process of granting bail to the alleged offenders.

The recommendations of the Royal Commission into Aboriginal Deaths in Custody were also considered during the formulation of the amendments in this bill. The Australian government is concerned about the relatively high rate of incarceration of Indigenous Australians and the number of Indigenous Australians who die in custody. However, there is no recommendation in the royal commission’s report to the effect that sentences commensurate with the relevant crimes should not be imposed on offenders and that victims and witnesses should not be protected from such offenders.

The high levels of family violence and child abuse in Indigenous communities is appalling. The Australian government are committed to protecting Australians from criminal behaviour, and those who are most vulnerable are obviously those most in need of protection.

This bill is only one element of our approach to addressing these difficult issues. The amendments in the bill are complemented by the law enforcement initiatives which include the creation of a National Indigenous Violence and Child Abuse Intelligence Task Force to facilitate the sharing of information and intelligence on crimes of violence and child abuse in the Indigenous community. There are also initiatives underway for community legal education and judicial cultural awareness training. These initiatives are in addition to actions that the Australian government is already undertaking to address complexities that Indigenous Australians face within the justice system, including initiatives through the national community crime prevention programs, the Prevention, Diversion, Rehabilitation and Restorative Justice program, and the Family Violence Prevention Legal Services program. The Australian government will continue taking practical steps to improve the lives of all Australians, whether they live in cities or in remote communities.

I thank the Senate Standing Committee on Legal and Constitutional Affairs for their consideration. When the bill was in the Senate, the government addressed the committee’s concerns by adopting recommendation 1 in principle, by giving consideration to customary law and cultural practice. Specifically, if a court cannot reduce the penalty under legislation then it should also not be able to increase the penalty.

The Australian government will continue to work with the states and territories to improve Australia’s justice system. In this regard, the Australian government encourages the states and territories to follow our lead and adopt similar sentencing and bail provisions.

In the Senate, Senator Ludwig raised a matter in relation to provisions that deal with a court exercising powers to take into account customary law or cultural practice for excusing, justifying, lessening or aggravating the seriousness of the criminal behaviour. These provisions enable a sentence to be waived in particular circumstances, taking such matters into account. It also prompted the government to look at some other issues where cultural background and religious beliefs were referred to in the Criminal Code. For that reason, issues relating to the Crimes Act, where the conduct of a forensic procedure might be undertaken, could be avoided if a person’s religious or customary beliefs were taken into account. It is in that context that I will be moving amendments at the committee stage to reinforce the principal message in this legislation on cultural backgrounds.

The government intend that cultural background will be removed from section 19B(1)(i) of the Crimes Act. We will add a new subsection to section 19B to ensure that, when a court exercises its powers under section 19B, it cannot take into account any form of customary law or cultural practice as a reason for excusing, justifying, requiring or lessening or aggravating the seriousness of criminal behaviour.

We will also remove reference to cultural background and religious beliefs from paragraphs 23WI(3)(c), 23WO(3)(c) and 23WT(3)(c) of the Crimes Act. In similar paragraphs, we will repeal paragraph (d) of the Crimes Act to remove a requirement for a constable, senior constable or magistrate to consider customary beliefs of an Aboriginal person or a Torres Strait Islander before requesting consent or making an order to conduct a forensic procedure.

We will also add a new subsection to sections 23WI(4), 23WO(4) and 23WT(4) so that a constable, senior constable or magistrate will be able to consider religious beliefs, where appropriate, when deciding whether there is a less intrusive but reasonably practicable way of obtaining forensic evidence. I make these points, because we will be ensuring that the principle that we believe is appropriate in dealing with these matters also applies to waiver and forensic evidence in the same way that we intended that it should apply in ensuring that such factors are taken into account in mitigation and similarly in granting bail.

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