Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Hansard source

Unfortunately, the debate on the Crimes Amendment (Bail and Sentencing) Bill 2006 will not be a pleasant one. As the Attorney-General is no doubt aware, this matter has already been dealt with in another place. Labor opposed the bill in that place and will again oppose the bill here in this House. The reason the debate will be, I would think, particularly poor by the standards that we as law makers would hope we use in this place is that less than 15 minutes before we walked in here, during one of the divisions we have just had, I was handed the amendments that the government will now move to this bill as a result of its party room meeting this morning.

Whilst some intention to move some amendments was flagged by our representative in the other place this morning, the amendments have not been seen until now and we will be dealing with them, of course, as the Attorney has flagged, in the detail stage of the debate. We will save our more detailed comments about those amendments until that point in the proceedings. But when this bill pretends to be about dealing with Indigenous violence or violence in Indigenous communities and when it pretends it is about providing some solutions to people, and when we look at the content of the original bill, it does highlight not only that we think it is actually a complete distraction but that the government, by the way it is just doing it on the run and making changes to extra bits and pieces all along, has no intention of dealing with this seriously and no intention of making sure that we have good legislation that is properly considered.

For example, the Attorney has mentioned that in the amendments that have just been provided there will be changes to forensic procedures: an entirely different section of the act—nothing that was there when the bill was originally tabled in the Senate, nothing that the Senate committee dealt with and not something that came as a result of recommendations from the Senate committee. And the government wants to introduce them here and vote on them in a number of hours. It expects that that is the best way for us to make decent laws for the country. We are very critical of that approach, just as we are critical of the approach that the government has taken in using this as a scapegoat, if you like, or as a fig leaf to try to cover up for a minister—the Minister for Families, Community Services and Indigenous Affairs—who has really not been able to come up with any practical and realistic ways of dealing with this problem. The government is pretending that taking this action of trying to amend the Crimes Act will deliver some relief to Indigenous communities.

Labor believes that this is a fundamentally flawed bill. It purports to tackle ‘the relatively high level of violence and abuse in Indigenous communities’—I think that is a quote from the explanatory memorandum. But in reality the terms of this bill will achieve nothing of the sort. The truth of the matter is that the bill is nothing more than a legal fig leaf to cover the inadequacies of the minister purportedly responsible for Indigenous affairs. It is nothing more than a distraction. It has been a waste of the time and energy of this parliament, the media and the Public Service at what I know the Attorney is well aware is a very busy time of the year in legislative terms. Even more significantly, this bill is a distraction from 10 long years of failed Howard government policy in Indigenous affairs and a distraction from finding genuine practical solutions to the very serious problems of violence and sexual abuse in Indigenous communities.

So, after 10 years and two national summits on violence in Indigenous communities, all this government has been able to come up with is this minor distraction. At a time of national prosperity—a prosperity built by the previous Labor government—the Howard government has managed to leave Indigenous Australians for a large part worse off than ever before. And this bill will only take us further in the wrong direction.

It is also interesting to note that this bill and the particular changes that are proposed in it represent a complete 180-degree turnaround by the government. When you look at the position taken by existing and former members of the government on the Crimes and Other Legislation Amendment Bill 1994, which first introduced the reference to cultural background into subsection 16A(2) that this bill now removes, who do you find supported that bill? It was the members opposite—at that time the opposition. Let us take a look at what Daryl Williams, who later became Attorney-General in the Howard government prior to the current Attorney, had to say back in 1994:

The bill will add the words ‘cultural background’ to this list. The effect of this will be to make the cultural background of a convicted federal offender a matter which a court must take into account when passing sentence or making an order. One could interpolate and say that, if the Crimes Act did not specify any matters, it would not be necessary to introduce the cultural background of the offender. But, given that there is something of a checklist for the judges and magistrates to refer to, an exclusion of an item such as the cultural background could suggest an intention that it not be taken into account. This amendment is appropriate.

Unfortunately for Mr Williams, this government has overridden his former position and decided that it is no longer appropriate for cultural background to be included in the so-called checklist for judges and magistrates to refer to. Since Mr Williams is no longer in the parliament it would be unfair to speculate on whether he would now be eating his own words, but I am sure that there are a number of people on the government side who baulk at the step that the government has taken and can easily see that this is putting politics and distractions before practical initiatives or measures that might actually make a difference to the community. There are others who spoke in favour of those amendments, including the current Minister for Justice and Customs, Senator Ellison, who had this to say on the 1994 changes:

I would indicate that the coalition agrees with the inclusion of cultural background in relation to sentencing principles. I believe that is an aspect which is relevant in a country such as Australia, where there are diverse cultural backgrounds. In my state of Western Australia there have been cases where tribal Aboriginals have been dealt with before the courts and, of course, they have operated under a different cultural background. They have also had to face some sort of penalty from their own tribe and clan. Also, some aspects of a culture bring out different sorts of behaviour in people, and that has to be recognised. In particular, this relates to Aboriginal offenders, but it could apply to anyone in the community.

As I say, this is the current justice minister, the person actually responsible for introducing this bill in the other place. But what did we see from Senator Ellison on 8 November when this legislation passed through the Senate? We saw a complete backflip as the minister argued in favour of returning section 16A of the Crimes Act to its pre-1994 state. Senator Ellison argued:

... you should not place too much emphasis on cultural background to the exclusion of other factors and, in fact, to the extent that justice may be distorted.

It seems to me that Minister Ellison’s own views have been distorted somewhat in that period of time, and I am sure if his view has not changed somebody has obviously required him to nevertheless pursue this course of action, even when anybody outside this place with even a modicum of interest in criminal law would understand that this is a complete distraction. It was as if Senator Ellison were implying that it is okay for justice to be distorted when the other factors listed in subsection 16A(2), which will continue to be there, were considered—just not cultural background. What a ludicrous position to take!

It also appears that, when the government was selecting the degree of difficulty for this backflip that it has taken, it thought it might be an easy routine that it had chosen, but to Senator Ellison’s amazement this turned out not to be the case when the backflip backfired in his face earlier this month. My colleague Senator Ludwig asked the minister during the debate in the other place why the government had chosen to remove the reference to cultural background in relation to factors considered during sentencing yet retain the reference to cultural background among the factors to be considered when a court is deciding whether to dismiss charges or discharge an offender without proceeding to conviction under Section 19B. I understand that this is one of the issues that are being picked up in the late amendments that the Attorney has commented on and has indicated that he is going to move in the consideration in detail stage.

It may be, as a result of the embarrassment of that question and the highlighting of the clear lack of consistency in what the government is doing, that after delivering a series of bungled attempts to explain this apparent inconsistency Senator Ellison returned at the end of the debate in the Senate to say that he would raise with the Attorney-General the matters that Senator Ludwig raised in the debate. I have a note here from my colleague saying that he hopes, given the handling of this matter by the minister for justice, that the Attorney might be able to do a better job today. Unfortunately with the time frames that are allowed I am not in any position to know whether or not that better job has been done yet, but we will know that by the time we get to the consideration in detail stage.

I think the much more important point this exposes is how this legislation is all about creating a distraction for the ministerial failures of Mr Brough rather than dealing with making sure that criminal legislation that is in place at the Commonwealth level is both good law and consistent law. If the government were serious about fixing these problems with the law, they would have taken a much more consistent, thorough and careful approach.

Allow me now to turn in some detail to the contents of the bill. As the short title suggests, it makes changes to two specific areas of the Crimes Act 1914: the provisions for granting bail and the list of matters that courts are expected to take into account during sentencing. With respect to the bail provisions, the inserted section 15AB lists new matters to be considered in granting bail, namely the impact the decision may have on victims or witnesses, potential or otherwise. These new measures, at least in sentiment, may be of some merit. Indeed this section was the only element of the amendments to receive any reasoned support at all from the non-government submissions to the Senate inquiry. That support came from the Aboriginal Legal Services of New South Wales and the Australian Capital Territory, but they stopped short of providing full support, objecting to subparagraph (1)(b), which prohibits the consideration of customary law and cultural practice in bail deliberations. Equivalent prohibitions are made in the context of sentencing, so I will deal with both incidents when I get to those measures, and it is worth noting the government ended up amending those in the Senate.

There are two important points worth noting about this section. Firstly, as we speak this matter is still under review by the Council of Australian Governments. On 14 July this year a communique from COAG stated:

COAG has asked the Standing Committee of Attorneys-General (SCAG) to report to the next COAG meeting on the extent to which bail provisions and enforcement take particular account of potential impacts on victims and witnesses in remote communities and to recommend any changes required.

This makes it grossly premature for the government to be making these amendments. After all, SCAG has not yet had the opportunity to present its report and COAG has not been given a chance to consider any subsequent recommendations. So if this bill is passed there is a strong possibility that we will be back here again in another six or 12 months time, or some period after that, to deal with those recommendations from SCAG or COAG.

Senator Ellison tried to argue that a pending review by SCAG and COAG should not be used as an excuse for standing still, yet this is exactly what the government wanted to do with Senator Ludwig’s private senator’s bill, the Crimes Amendment (Victim Impact Statements) Bill 2006, which sought to amend provisions relating to sentencing in the same part of the Crimes Act 1914. In that debate, government senators argued that it would be ‘premature for the government to consider the use of victim impact statements in isolation’, as it was already considering related recommendations from the Australian Law Reform Commission. As Senator Fifield advised:

We should take our time. We should make sure that we get it right. We should make sure that we take into account all relevant factors in relation to sentencing policy so that we ensure that we get this right.

They are all very fine sentiments, but unfortunately they were not applied to the government itself in the way that it is dealing with this particular bill. In the case of the bill we are considering here today, the government has not followed the senator’s advice one iota. By giving us yet another raft of amendments with little preparation, with little thought and, in respect of the forensic procedures, with no assessment at all by the Senate committee process, how could we say that we are taking the time, as Senator Fifield has advised us to do, to get it right? The government clearly is not doing that.

Instead of proceeding through SCAG, as agreed with the states and territories, the Howard government is now legislating unilaterally. This shows just how arrogant and consumed with power this government is becoming. It also shows that the only part of the bill that possesses any possible merit has been acted on in direct contradiction with the government’s own commitments. By disregarding the COAG agreement relating to bail, the government’s attempt to rely on other parts of the communique to justify the remainder of the bill is exposed as an absolute farce.

Let me turn to the sentencing provisions and the removal of reference to ‘cultural background’. The second substantive change that the bill seeks is the removal of the reference to ‘cultural background’ that appears in subsection 16A(2), which lists the matters that courts should have regard to when passing sentence. In its second reading speech, the government rejected ‘the idea that an offender’s cultural background should automatically be considered, when a court is sentencing that offender, so as to mitigate the sentence imposed’. This raises the question of whether the government before drafting this bill even bothered to read the existing provisions of the Crimes Act, because when I turned to my copy of the act—and I know my colleagues in the Senate have done this too—I read the following paragraph:

In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court ...

Let us think for a moment about the word ‘relevant’, because although subsection 16A(2) does direct the court to take into account a range of matters, including cultural background, it must only do so where those matters are relevant, and it is left to the court to determine whether or not a matter is relevant. If the government wants this legislation to be taken seriously then it cannot just wander into the parliament and reject some unattributed idea. Ideas may be important, but in the end we are here as legislators not philosophers and our currency is the written law.

When bringing changes forward it is incumbent on the government to point out the specific failings in the law as it stands and explain in full how these changes will remedy them. To do this, of course, you need to actually read the provisions of the act that is going to be amended, and it seems to us that the government has not taken even this most basic step. Instead of basing its case on both fact and experience, it has relied solely upon some idea, and, as I said, an unattributed one at that.

When asked to identify where the consideration of customary law or cultural practice has led to inappropriately lenient sentences the Attorney-General’s Department failed to provide a single case to the Senate committee. And when pressed for the detail of cases, known at the time of drafting, the only example that the government could provide related to an unsuccessful attempt to use hunting traditions as a defence for hunting birds that were listed as endangered. I think it highlights how silly the government has been in the drafting of these provisions and its determination to pursue some other sort of agenda, like distracting from the minister’s other failings, rather than trying to make our law the best and most appropriate law it can be.

I will turn now to the original amendments that will direct authorities in granting bail under subparagraph 15AB(1)(b) and those directing courts in sentencing under subsection 16A(2A) to exclude from consideration:

... any form of customary law or cultural practice as a reason for excusing, justifying, authorising, requiring or rendering less serious the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.

The Senate Legal and Constitutional Affairs Committee argued that this original drafting would have meant:

... that a court could not take into account customary law or cultural practice to render criminal behaviour less serious but could consider these factors if it rendered criminal behaviour more serious.

Fortunately the government has taken on board the Senate committee’s view in this instance, an all too rare occurrence these days. But this only serves to reinforce the hasty fashion in which the bill has been thrown together. Although it is a clear improvement, neither the bill as a whole nor the individual provisions are in any way sufficiently redeemed.

The Senate inquiry into the bill was on the whole quite scathing. In the majority report, specific attention was drawn to the lack of consultation that occurred in drafting the legislation—something that appears, unfortunately, to be an emerging trend under the Howard government. The consequences of inadequate consultation can be seen in the almost unanimous denigration of the bill by those who gave evidence to the committee.

The key criticisms are summarised in the majority report as follows: the bill is both misguided and ill-conceived, and it will do little in a practical sense to address the violence and abuse in Indigenous communities; the bill risks further discriminating against minority cultures; the bill runs contrary to the findings of major relevant inquiries, particularly the Royal Commission on Aboriginal Deaths in Custody; the bill will restrict judicial discretion; and the bill may undermine important initiatives involving Indigenous customary law, such as circular sentencing. In addition to the recommended amendment mentioned previously, the majority report also urged the government not to remove the reference to ‘cultural background’ from the act. Although all of the recommendations made by the majority members would undoubtedly improve the bill, as noted by the minority report prepared by the Labor senators on the committee, they would ‘ultimately leave it gutted’. As such, the majority report’s attempt to salvage the bill was just another face-saving exercise for the minister for Indigenous affairs.

As mentioned earlier, these changes will also have almost no effect on violence and sexual abuse in Indigenous communities. Yet this is precisely what the bill purports to impact upon. Why is this the case? Because in the main these sorts of offences are covered by state and territory legislation—something noted by the Senate committee and almost every organisation that made a submission to the inquiry but seemingly missed by the government.

Just as some indication, looking at federal prisoners who might be covered by our Crimes Act, as of 1 September 2006, three-quarters were incarcerated under drug importation offences. Looking at the 74 prisoners convicted under the Crimes Act, which make up the bulk of the residual, more than half of those were related to social security. So just how these changes are going to make any impact upon the serious problems of domestic violence and sexual abuse is, frankly, anyone’s guess. Mind you, we are not here to play a guessing game, especially when it comes to issues as serious as these. This is something that we will never forgive the government for: exploiting the goodwill of the wider community and this parliament and our desire to stamp out violence and sexual abuse wherever it is found to divert attention from the minister’s failings. This is a sad joke by the government. The bill is a nonsense bill and Labor will not be supporting it.

I will make some other brief comments about the amendments that have just been provided to us. As I said, we have only had a very short period of time to look at those and we will deal with them in more detail when we get to the consideration in detail stage. It is of concern to us not only that the government drafted such a poor bill initially—which, when it was dealt with by the Senate committee, there were many recommendations to change; even the coalition members could see how inadequately these provisions had been drafted—but that it appears that the majority of the amendments the government now wants to move are entirely unrelated to the provisions of the initial bill and to the inquiry conducted by the Senate committee. Nowhere has there been any indication that forensic procedures were going to be part of this, yet the additional amendments deal particularly with forensic procedures. It appears either that the Attorney does not understand that forensic procedures are not bail and sentencing procedures or, alternatively, that he is seeking to create some sort of omnibus bill where none existed before.

It would be more appropriate for us to properly examine these amendments rather than have them moved as last-minute amendments to what is already a very poorly drafted and inadequate bill—rather than just tacking them on without the proper consideration of the parliament and the party rooms, and, much more importantly, of the community, who have had no opportunity at all to comment on these other provisions. These amendments represent embarrassing and increasingly erratic law making by the minister for justice and the Attorney-General. It is a worry to us that the government would use this opportunity to make such significant changes without adequate consultation.

I will reserve my remaining remarks on the particular amendments until they are moved later in the day in the consideration in detail stage. But we do flag our opposition to the bill and to the government’s incredibly inadequate handling of the issue of violence within the community and its using this as a distraction when much more important practical measures should be being taken.

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