Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

I assure the honourable member for Ryan that, far from thinking that this proposition has been put forward merely to obtain headlines, I think its motivation is far worse. I think it is a far more unsatisfactory piece of legislation than has been asserted by most members of the opposition thus far. The Crimes Amendment (Bail and Sentencing) Bill 2006 reflects an attack on some of the most fundamental understandings of human nature that ought to underpin the criminal law.

I speak in this debate from the perspective of having been a long-serving member of the legal profession who commenced his career as a prosecutor then spent three years in Papua New Guinea, including a period as Dean of the Law School at the University of Papua New Guinea working on issues of tribal violence in the highlands, and who worked for a year as principal solicitor for the Aboriginal Legal Service in New South Wales. So I feel some capacity to make judgements about the merits or otherwise of propositions of criminal law.

It seems to me quite absurd that, when we deal with our relationship to a conquered race, which the Aboriginal people are in this country—a people who were pushed and dispossessed from their lands by a successful invasion of which I am the successful and proud present representative—we do not understand that we have to treat the original inhabitants of our nation with some respect for their traditional culture and norms.

Picture a different society—one where the Indigenous community was not so displaced. Take my example of Papua New Guinea, where I taught and worked for three years. In that community a proposition such as the one being put forward today would be regarded as entirely absurd. Customary law is part of the underlying law of Papua New Guinea. It must be, because the thinking and conduct of people is fundamentally determined by those customary obligations. And any criminal justice system that does not take those customary obligations into account simply does not connect with that world-living reality in which those people live.

The legal system in Papua New Guinea, of course, recognises cultural norms—not to forgive conduct that the parliament of Papua New Guinea has chosen to criminalise, which may or may not have been criminal under customary arrangements, but to recognise that moral fault diminishes or increases in accordance with the circumstances in which a person engages and has relationships with that legal system.

We forget that in enacting our criminal law we embed in our criminal law all our customary understandings and practices. Our criminal law does not need to have specific provisions which relate to our customary understandings and those things which we respect and condone because it is embedded in the legal system we enact. But when we are passing laws that have an impact on others who have a different cultural background, whose lands we have invaded and whose people we have pushed aside, are we to pretend that they must suddenly emerge and have no connection whatsoever with their previous cultural norms, particularly when some of those people—only a handful, admittedly, but nonetheless some—still have no greater contact with the newly introduced systems of laws than do some people in Papua New Guinea?

I defy anybody in this House to imagine a different regime coming to this country and pushing us aside—a community, say, of Germans, Japanese or Chinese. If they became the political class that ruled this country and made a new set of laws, and then said of everything we took for granted—such as marriage, our cultural norms, those rights that we hold dear, the carriage of our religious responsibilities and the like—that none of those things could be taken into account when moral fault was being judged, we would regard that as quite tragic and unthinkable. We do not face those circumstances, but Aboriginal Australians do. Aboriginal Australians face that every day.

I do not have any time for this re-myth making that this government is engaged in. The government cheerfully attacks the approach of former governments. It says the former government was too interested in rights rather than responsibilities. Let us be fair about it: we should be more interested in rights because the remnant populations that we have so dispossessed have been denuded of everything of great value in most instances, treated in the abominable way that they have been in the past, given no citizenship rights, no right of vote, deprived of their property, treated as chattel, chained and imprisoned—and then we are told we are more concerned about redressing rights than we are in relation to responsibilities. Well, cop me: I plead guilty. I am more interested in redressing rights. And if you wish to call me ‘black armband’ in relation to my historical understanding, let me say that the black band has slipped upwards in this government’s hands and now covers its eyes. It is a black mask government. It cannot see what is in front of its face because it chooses not to see it.

In every settler society—South America and every other settler society—the colonial powers had contempt for the indigenous peoples that they usurped. In some societies that has changed fundamentally. In our neighbour, New Zealand, for example, at least the indigenous Maori people have representation in the parliament as of right. There are Maori seats. But we give our Indigenous people no direct and as of right political representation. In other societies treaties have been made with indigenous people to confer upon them inalienable rights because of a recognition of past wrongdoing.

In societies where the invasion was not such as to turn the displaced populations into a tiny minority amongst the invading class, political revolutions have occurred—as they are now occurring in South America, where the Indian populations which were made subservient are regaining political power. This is much resented in many instances but it is nonetheless occurring. But in Australia we are going backwards under this government. We are going backwards, and our want of respect or even self-knowledge in this debate is something I find extraordinary.

Self-determination is not a word that you throw around pejoratively. It is something we all value; it is not something to hold in contempt. The member for Ryan mentioned the contribution of my friend and colleague Senator Evans, who made the point that during the Labor years we may have given too great an emphasis to self-determination at the expense of some of the practical measures that are necessary to rebuild the strength of Indigenous communities that we now wish to balance up. But that should not be at the expense of self-determination. When we seek to balance up something, it does not mean throwing away the part that was previously given the greatest emphasis. We need to establish a process that gives Indigenous people a place at the table in the public discourse of Australia.

Fair enough: this government has thrown out ATSIC. It says it was a failure. But what representative body has it put in its place to enable Indigenous Australians to play an effective democratic role at the table of discourse of our democracy? None. It is fair enough to criticise the measures that the previous government put in place as being inadequate, but then this government comes along and takes an instance such as Mutitjulu and allows a storm of grossly misleading information to be portrayed as if it is the normative behaviour of Indigenous Australians. It puts forward this legislation as if there is a need to change the law because all Aboriginal people are somehow engaged in sexual, anal intercourse with 14-year-old girls. That is the implication that we are left to hold out to the electorate of Ryan that is said to support this government. We are pandering to a misapprehension. We are pandering to this black mask phase of political misunderstanding of our own history rather than facing up to our genuine responsibilities to fellow citizens who come from a different background to us. Indigenous Papua New Guineans come from many different sets of understanding because there are many different cultures in Papua New Guinea, just as there are amongst Indigenous, Aboriginal communities. There is not a single Indigenous culture.

This law is not being brought forward because the government can point to any instance where it is needed. It cannot point to one single instance where an injustice, ultimately, has been perpetrated. The Attorney-General was challenged to do so. What was raised by the member for Ryan was a first-instance judgement of a single judge in the Northern Territory. A decision was made and a prosecution appeal was lodged; the appeal was upheld. The sentence was substantially increased. We did not need this legislation to have that effect. The Attorney was challenged by the question: what instance of error can you point to that this legislation is intended to redress? None was brought forward.

When I say of the member for Ryan that the motive for this is far more heinous than simply grabbing a headline, I think that the motive for this is to, again, blame the black victims for the circumstances in which they find themselves, without any capacity for this parliament and the community to truly examine where our own responsibilities lie. We have a situation now, nearly 15 years after the black deaths in custody report, where the number of Indigenous people in prison is higher than it was at the time of that royal commission. We have a situation where the life expectancy of Indigenous people in this country is less as a proportion of the life expectancy of non-Indigenous society than it was at the time of the royal commission into deaths in custody. We have a situation in this country where Australians have turned away from their responsibilities to address issues of rights, issues of self-determination and the hard questions that actually go to how we own and possess the land on which we stand, because this government says, ‘We will treat everybody alike,’ forgetting that the starting point was our dispossession of a people that lived on this land for 40,000 years before we arrived.

If we were in a situation such as that of Papua New Guinea and the Indigenous population—the Aboriginal people of this country—were still in a majority and had the vote, these kinds of debates would be simply unthinkable. The question would be our—that is, the European minority’s—cultural interests. How do we protect them adequately from the rights of a majority? We have been so successful in the invasion which our forbears implemented, and I am proud of those successes. I now stand in this parliament; but because we were so successful at marginalising and disempowering Aboriginal people, members can stand up here and speak the sort of nonsense that the member for Ryan spoke. I do not think there was any malice in the member for Ryan. I think he was genuine in imagining that I might say something favourable about this legislation because of my legal background. But our legal system should be fundamentally predicated on dealing with all persons accused of crime and found guilty of crime on individualised merit, on punishment according to their moral culpability, and with the hope of redemption through their reform.

Redemption through reform is not always possible. We know that not everybody who commits crimes and is punished reforms. We try to make the punishment fit the crime, but the punishment has to fit the person who commits the crime. To do otherwise is a complete and utter abrogation of this parliament’s responsibility.

This legislation has been advanced because of a political storm, created in the media, whipped up by this government and then brought forward through COAG and SCAG processes, which I hold in deep contempt. I say that for my fellow Labor attorneys and heads of government who participated in them.

This basically racist approach is one which I will not allow myself to permit to pass in this parliament without the strongest possible objection. It is wrong, it is unprincipled and it remains unprincipled in whosever mouth it is spoken. It is against every recommendation of every law reform commission in this country. It goes against the Law Reform Commission reports established on Aboriginal customary law about 30 years ago in the previous Whitlam government. It goes against Law Reform Commission reports commissioned in the life of the current government. It goes against the New South Wales Law Reform Commission. It goes against the leading legal bodies of this country. I return briefly to what was said by the current President of the Law Council of Australia, Tim Bugg, who said, when calling on the government not to proceed with this bill:

Courts must have access to all available sentencing and bail options, particularly when dealing with Indigenous offenders ... implementing the Bill in its present form would seriously undermine the ability of courts to exercise practical judicial alternatives.

It is a matter of grave regret, in my hands, that I speak in the way that I do. But how is it that we in this parliament give any comfort to this kind of legislation? It will not matter a jot in most instances. It would be rare that these provisions were called upon, and certainly never in the kinds of extreme cases that are thrown up by the hypotheses of the government who throw up instances of abuses of women and children as though they are tolerated under Aboriginal cultural norms. As someone who has worked in societies and places where there is an Indigenous minority operating under a largely Westminster legal system—as in Papua New Guinea—I have learnt to recognise the way in which you can incorporate proper respect for Indigenous customary law and respect for a legal system, while making certain that victims are not placed in a situation where they are left without remedies or abused, at the same time recognising cultural norms that apply in Indigenous society.

As someone who worked for the Aboriginal Legal Service, I am well aware that we have gone backwards in all our discussions in relation to Indigenous rights. We have gone backwards in black deaths in custody, we have gone backwards in setting up representative organisations for Indigenous peoples, we have destroyed elective bodies that represented Aboriginal people and we have cut across the opportunities for Indigenous people to exercise economic self-determination.

Now we find that even champions the government has used to hide behind—such as Mr Pearson—are walking away, realising that this government truly had no interest. If you read what Mr Pearson is saying now about the way in which this government has misused his heartfelt sense that Aboriginal people need to take greater personal responsibility—of course a view we would agree with—we see that it is now being used so that we surrender our responsibility. A view from an Aboriginal elder who says, ‘We as a community must exercise greater self-responsibility,’ is being used by the government wrongly, cheaply and in a racist way to say that we have no responsibility, and that I utterly condemn.

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