Tanya Plibersek (Sydney, Australian Labor Party, Shadow Minister for Childcare) Share this | Hansard source

I rise to speak on the Crimes Amendment (Bail and Sentencing) Bill 2006. I listened closely to the comments of the member for Stirling. I believe that his intentions are good, but he has made a number of statements which do not really reflect the reality in courts around Australia—in particular, courts that would be affected by this legislation. He has suggested that currently people are not equal before the law because judges have the ability, in certain limited circumstances and if they want to, to take cultural background or customary law into account in sentencing.

If the member for Stirling had a look at whether this has been the case—whether judges have taken cultural background and customary law into account in sentencing—I think he would be surprised. He has left the chamber so I suppose he is not really interested in the detail of this legislation. He would have found that it was not the sort of issue that the Attorney-General and the Minister for Families, Community Services and Indigenous Affairs like to pretend it is. We are not in the middle of a two-tier legal system, as the member for Stirling was trying to suggest. People are not getting different treatment or different levels of protection because of their cultural background.

Sexual assault and domestic violence in some Indigenous communities is a frighteningly widespread issue and as a nation it is incumbent upon us to do something about it. It has been a good thing that in recent months there has been some widespread media coverage of the devastating incidents and the devastating effects that these are having in some communities. What we need is a long-term, well thought through plan that builds on what is working—because there are programs that are working around Australia—and addresses the incidence of violence and assault in some communities.

This bill will do absolutely nothing to reduce levels of sexual assault and domestic violence in these communities. The thing that is so disappointing about that is that here we are, the parliament of Australia, with all these resources, information, reports and consultations, and this is the best that the government can come up with—a piece of legislation that will not protect a single child from sexual assault, a piece of legislation that will not protect a single woman from sexual assault or domestic violence. So, what can the aim be? If the aim is not to protect the victims of domestic violence and sexual assault, what can the aim be? Could it possibly be as venal and as base as a few headlines in the Australian? Could it possibly be so?

Of course, there is never an excuse for child abuse, sexual assault or domestic violence. They are always crimes and they must be treated as crimes. Policing and the judiciary all have a part to play in reducing and eventually eliminating violence against and sexual abuse of women and children but they are not the whole answer. They are a very important part of the answer but they are not the full answer. Aboriginal men who rape or bash their wives or children should of course face the full force of the law. There is nobody in this country who argues otherwise, and this legislation is designed to imply that there are people who argue otherwise.

The challenge for the government is to take the focus that the media attention has put on these issues and turn it into sustained, positive action that actually addresses the incidence of sexual assault and domestic violence in Aboriginal communities—and, indeed, in communities all around Australia. We must keep reminding ourselves that this is not just something that happens in rural, remote, isolated communities. It is not just something that happens in Aboriginal communities.

This bill does nothing to offer a sustained response to domestic violence or sexual assault. It comes from an intergovernmental summit on violence and child abuse in Indigenous communities held in June 2006. It sets out to amend the federal Crimes Act to require the court to consider the potential impact of bail decisions on victims and witnesses, specifically those in remote communities, and to restrict federal judges and magistrates from taking into consideration a person’s cultural background or customary law in sentencing.

The member for Stirling implied that judges have to take this into consideration. They do not have to. This bill seeks to take away something that is seldom used. It was said that it is sometimes argued for in court. Plenty of things are argued for. In just about every court case that makes it into the newspapers it seems somebody is arguing that the person is actually innocent.

As I said, the bill is in fact a diversion from the main issue that we as a parliament should be tackling—that is, how to reduce the incidence of domestic violence and sexual assault in communities around Australia. We have heard from speakers on both sides of the parliament—members of the government and members of the opposition—in the last week in particular about the importance of having a sustained and long-term approach to reducing violence in Australia. There has been a terrific community campaign, the White Ribbon Day campaign, in which White Ribbon ambassadors, including a number of members on both sides of the parliament, have worn their white ribbons so as to say: ‘As Australian men, we want to see the end of violence against women and children in Australia. We will stand up to be counted. We will say that this is not acceptable. We will say to other men that this is not acceptable.’ We have seen a very positive response from the Australian community. The Australian community recognises that sexual assault, domestic violence and child sexual abuse should not be tolerated.

How does the government respond to that? This bill, which is supposed to have some effect on child sexual abuse, domestic violence and sexual assault, diverts attention because there is this supposition that there are a whole lot of people out there arguing that it is okay for them to bash their wives and have sex with children because it is part of their cultural heritage, and it is just not happening in the Australian community. When the Attorney-General was asked to identify where the consideration of customary law or cultural practice has led to inappropriately lenient sentences, his department failed to provide a single case. When he was 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.

Currently, a person’s cultural background is only ever considered in sentencing where the judge says it is relevant. It is often not considered. It may be argued for by the defence and then disregarded by the judge. Honestly, I think this is the kind of thing that we can leave to judges and courts. The idea that the Attorney-General, from the distance of Canberra, is better placed to make these decisions than judges is, in my view, not correct.

We are committed to tackling the incredibly difficult issues around sexual abuse and domestic violence involving women and children, but playing politics does not do that. In fact, what we can do, if we start playing politics with these issues, is divert our attention away from finding real solutions. There are real solutions. They are operating in towns and communities around the country. The trouble is that we have bandaid suggestions, short-term pilot programs—the pilot works, then it runs out of money. We have communities around Australia reinventing the wheel. They find a program that works, they run it as a pilot program, it reduces the rate of sexual abuse or domestic violence in a community and then the funding is withdrawn from the program and they have to start all over again with a new funding stream in a few years time. Or they keep their funding but their program is so little known outside their community that communities all around Australia are reinventing the wheel.

That is just not good enough. We need a national response to violence against women and children. We need a national plan that has all the stakeholders involved—police, the judiciary, and survivors of domestic violence, sexual assault and child sexual assault. All of those stakeholders should be at the table. We need that group to report to cabinet about what is working, where it is working and, if it is not working, why not. What are we doing wrong? We need a national council to direct the work of that national plan. We need real and long-term support for the programs that work. We do not want a piecemeal approach. We do not want an approach that is based on glossy advertising campaigns that ramp up around election time to make it look like the government is interested in doing something about sexual assault and domestic violence.

The Human Rights and Equal Opportunity Commission put out an excellent research paper about violence in Aboriginal communities in which they set out 10 challenges for dealing with violence in those communities. They talked about the importance of a holistic approach rather than an approach that deals only with law and order. Law and order is important but it is not the only answer. They say that government has consulted and had reports till the cows have come home. We now know enough; we actually have to commit to doing the work. HREOC stressed that genuine partnership and full participation of Indigenous people are absolutely vital if programs are going to work.

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