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

I want to very strongly endorse the comments made by the member for Denison, who preceded me in this debate. There is absolutely no question that the situation which Aboriginal people face in this country—and the way in which the federal government has chosen to develop and deliver policy—has seen not only their rights but also their interests and their prospects in many instances substantially diminished, not the least of which is the mischief and the narrowing of debate that is clearly evident in this Crimes Amendment (Bail and Sentencing) Bill 2006.

Late last year, the Minister for Justice and Customs, Senator Ellison, announced the winners of the Australian Crime and Violence Prevention Awards, which recognise ‘the most outstanding projects that prevent or reduce crime and violence in Australia’. Two of the recipients of this award were Circle Sentencing Nowra and the Shepparton Koori Court. It goes without saying that both of these courts and both of these processes (a) are successful, (b) have been recognised as outstanding examples of improving community safety and (c) clearly were not in the minds of the drafters of this odious legislation.

A Four Corners investigation into circle sentencing, which included examining Circle Sentencing Nowra, highlighted the cause of much Indigenous violence as a result of systemic issues surrounding overcrowding, substance abuse and chronic unemployment, all of which led to low self-esteem and the triggering of antisocial behaviour. The recognition by the Minister for Justice and Customs of the success of those initiatives begs the question: if the government is handing out awards to programs which embrace the concept of circle sentencing, why then would it introduce a bill which effectively diminishes their capacity to offer new ways of reducing recidivism among Indigenous people?

The Crimes Amendment (Bail and Sentencing) Bill seeks to amend the bail and sentencing provisions within the Crimes Act by placing a requirement on the court to consider the potential impact on victims when assessing bail conditions, by deleting the reference to cultural background and by specifying that customary law or cultural practice not be taken into account for Commonwealth offences. It is a deplorable piece of legislation. It must be noted at the outset that there is no capacity under the Crimes Act to deal with violent crimes, including murder, assault and rape. So there is a nonsense at play here—a nonsense under which lies a much more odious intention.

These sorts of crimes quite clearly fall under the jurisdiction of state and territory laws. Additionally, under the current arrangements, customary law or cultural practice is not deemed a valid defence in determining guilt or innocence. To suggest otherwise is a nonsense, but it is also spurious and inflammatory. The inserted section 15AB lists the impact on victims or witnesses in granting bail as a necessary requirement in deliberations. There would appear to be some merit in this measure, and I note a number of the submissions to the Senate inquiry supported this move.

Following the Council of Australian Governments meeting on 14 July this year, it was agreed that the Standing Committee of Attorneys-General 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, and that seemed to be a fairly sensible way of proceeding. But now the government is introducing a bill of this sort before members of the Standing Committee of Attorneys-General can report on the matter. What possible reason is there for the government to do this? Clearly, the government is not interested in developing purposeful policy; it is simply playing politics with Indigenous people.

The second amendment the government is introducing is the removal of cultural background, which appears in section 16A(2) and currently can be taken into consideration as ‘relevance’ allows—the important term here is ‘relevance’—but it would appear that the government has conveniently neglected to note this. During the second reading debate the government blasted the idea that the offender’s cultural background should automatically be considered when a court is sentencing that offender so as to mitigate the sentence imposed. It is here that the government is attacking the player and not the ball, because it knows full well that cultural background is only taken into consideration when relevant and known to the court. It is not a blanket consideration. To suggest otherwise is completely wrong.

The issue of customary law and its rightful place in the criminal justice system has been raised previously in this House and the government has been flying a kite on this issue. The member for Stirling introduced a private member’s bill reaffirming that cultural practices in any community do not lessen the full protection of Australian law. The member’s reaffirmation of the blindingly obvious came as a result of deeply worrying stories of abuse and assault in some Indigenous communities—stories that concern all Australians. That he was prepared to suggest cultural practices or customary law lessened the protection of members of these communities amounted to a complete misrepresentation both of customary law and of the judicial process.

I spoke in that debate, and I referred the member to a case in the Supreme Court of the Northern Territory—the Queen v James Goutjawuy Gondarra—where the accused was additionally held accountable for his actions by the cultural law processes of his elders. Consequently he showed real signs of remorse and, as a consequence of that, the first steps towards positive rehabilitation took place. As is always the case in issues of sentencing before a court, and in the circumstances in which an offender is charged and brought before the court, there are a range of different and differing circumstances that attach. The most important matter that must be dealt with is for justice not only to be done but to be seen to be done and for the offender, if found guilty, to be made aware of the significance of the offence, to show remorse and contrition and to be a positive prospect for rehabilitation.

In this case, customary law—and the access to customary law—did not lessen the full protection of the law; in fact, it was beneficial. Customary law was a part of the treatment. The community which, hitherto, had borne some of the brunt of his actions was now in a position to ensure that his actions would not be repeated and that he was in a position to realise the seriousness of them. That surely is the purpose of an application of that kind in those circumstances.

This leads us to considering the role of judicial discretion in sentencing. There will be some variety in the way in which judges, when sentencing, exercise their discretion. And, of course, there is always the prospect of appeal. A concern arising from the bill is that the preservation of judicial discretion could be undermined, and I think that is a legitimate concern. The Australian Law Reform Commission takes the following view:

... the consideration of traditional laws and customs to explain an offender’s reasons or motives for committing the offence is merely one factor to be considered in the sentencing process.

That is to say cultural background, where relevant, can be useful in determining a sentence. Further, the Law Reform Commission noted:

The weight to be attached to the factor always should be a matter for the court’s discretion, consistent with the application of Australia’s obligations under international law and our own human rights instruments.

It is clear that, by removing the term ‘cultural background’ from the list of matters the court should take into consideration when sentencing, the government is attempting to reduce the judicial discretion that that, hitherto, would have obtained.

When the Crimes Act 1914 was amended in 1994 to incorporate the term ‘cultural background’ there was bipartisan support. The then Attorney-General, the Hon. Daryl Williams, noted:

It is, however, a relevant consideration to be weighed by the court at the stage in which an accused has already been found guilty.

So what has changed, we might well ask, since 1994? Indeed, the current member for Fisher, Mr Slipper, stated during the second reading debate of the Crimes and Other Legislation Bill 1994:

… the opposition—

the Liberal-National coalition—

certainly is not opposed to the inclusion of cultural background as a relevant matter to be taken into account by the court when sentencing federal offenders.

Does the member for Fisher still hold this view? And do other members, who presumably nodded in assent at the time?

The 1994 amendment included inserting a reference to cultural background when determining a sentence in section 16A as well as with the discharge of offenders without proceeding to conviction in section 19B. The explanatory memorandum to that amendment stated:

As with section 16A, the Australian Law Reform Commission report on multiculturalism and the law recommended that an offender’s cultural background be included in the list of matters which the court should take into account in determining whether to proceed to a conviction. This clause implements that recommendation.

However, when the government first drafted this new bill the reference to cultural background was to be deleted only from section 16A, which relates to sentencing. The government has now at least recognised the inconsistency in its approach to section 19B.

While the Crimes Amendment Bill amended the act by removing the term ‘cultural background in relation to sentencing’, the government obviously saw no initial problems with its continued inclusion with regard to deciding whether to dismiss charges or discharge an offender before seeking a conviction. Such hypocrisy! It really does highlight the policy-on-the-run attitude of the government that we have seen in many other areas in relation to Indigenous affairs. I refer in passing to the prospects of the COAG trials at Wadeye which have been shown to produce more red tape and deliver very few additional government services despite the government’s rhetoric to the contrary.

It is for these reasons that I have outlined and more that Labor opposes the bill. Whilst the government argues that the intention of this legislation is to tackle the problem of violence, substance abuse and recidivism amongst members of Indigenous communities, there is nothing in the bill that substantially delivers anything like solutions to the many problems that Indigenous communities face. The Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, has stated:

Despite the recent media frenzy about the problem of violence in indigenous communities, so far there’s been no serious discussion about whether the Government’s claim—that the Crimes Amendment Bill 2006 will help address this issue—stacks up.

The bill is yet another attempt to paper over the very real and difficult issues that contribute to Indigenous disadvantage and Indigenous crime in this country.

The problems faced by Indigenous communities are clear, and a quick review of these is instructive in the context of the legislation before us. The Social Justice Report 2005 provided a stark view of the conditions faced by this country’s original inhabitants. The report quotes ‘slow and inconsistent’ progress on Indigenous health issues described by the commissioner, as illustrated by the gap of approximately 17 years between Indigenous and non-Indigenous life expectancy. Age specific death rates for Indigenous people are about double those for non-Indigenous people—a terrible statistic. Indigenous babies are twice as likely to be of low birthweight as non-Indigenous babies, infant mortality rates are three times higher amongst Indigenous infants and rates of many communicable diseases are up to 93 times higher than in non-Indigenous populations. Two recent reports from the New South Wales Bureau of Crime Statistics and Research found that since 1991 the rate of Indigenous imprisonment has surged by almost 55 per cent, with the past six years experiencing a rise of 23 per cent. It cannot merely be a function of the criminal justice system and our approach to Indigenous disadvantage that we simply sit by and witness ever-increasing numbers of young Aboriginal males being incarcerated.

There were many submissions to the Senate Standing Committee on Legal and Constitutional Affairs that were critical of the government’s approach. In the government’s haste to rush the bill through parliament, a number of submissions made the point that there was little or no consultation with relevant stakeholders. The North Australian Justice Agency pointed to ‘a lack of integrity in the government’s timetable for consultation on the proposed amendments’. The Attorney-General’s Department even admitted that there was no direct consultation outside of the intergovernmental summit. It is policymaking on the run without consultation of the communities whom it affects. It is not acceptable.

Other submissions to the Senate committee highlighted the lack of a coherent approach to the issue of violence in Indigenous communities. Many were concerned that the government appeared to be under the impression that the Crimes Act was a suitable legislative tool for tackling crimes currently dealt with by state and territory legislation. The Law Council of Australia made clear:

The bill will have immediate impact only in relation to Commonwealth offences and not directly in relation to issues of particular concern identified in the explanatory memorandum—that is, high levels of violence and child abuse in indigenous communities.’

As of September 2006, of those people incarcerated as federal prisoners, around three-quarters were convictions concerning drug importation. Of the 74 prisoners convicted under the Crimes Act, over half were in relation to social security fraud. Catholic Social Services Australia argued:

It is incumbent on the Commonwealth government to ensure that any legislative action it develops in response to the July 2006 COAG communiqué is measured, is just and is not liable to have unintended consequences which might further disadvantage some of the most vulnerable people in the Australian community.’

On the face of it, and when we look at the detail, this bill does not conform to any of those criteria.

The government’s ambivalence regarding the link between customary law and guilt or innocence was also noted. Professor Weisbrot from the Australian Law Reform Commission stated that customary law as a defence ‘never works’; however, it can be useful in determining an ‘appropriate sentence’. But it is clear that the bill does not introduce a single concrete measure to tackle the source of much of the violence in Indigenous communities, and the Social Justice Commissioner eloquently made that point. He said:

If we are putting all of our hope on this amendment to address and change family violence, I think this is misconceived. It will do nothing to address any of those issues.’

Nor does the bill reflect the findings of a number of inquiries into customary law and the Australian legal system. In fact, the Human Rights and Equal Opportunity Commission argues that it is in conflict with all major inquiries into the issue, including five Australian Law Reform Commission reports. The bill is also in conflict with the bipartisan support shown in 1994 when a requirement was inserted into the Crimes Act that the courts take into consideration cultural background when determining sentence.

Under the weight of all those opinions, why does the government persist with this bill? It is also at odds with the findings of the Royal Commission into Aboriginal Deaths in Custody, which were quite specific in saying that we need to reduce the Aboriginal prison population and that Aboriginal cultural practice should be taken into account when determining sentences, as a part of that.

Critically, the introduction of circle sentencing or Koori courts—where customary law and customary practice, it has to be said, are taken into account—has benefited many communities, including Dubbo, Nowra and Shepparton. Based in part on a model initiated in Canada, circle sentencing allows local community members, in conjunction with a magistrate, to discuss and determine the appropriate sentence for an offender. Circle sentencing has been a constructive development in the towns in which it operates. A concern raised during the committee process is that this bill has the capacity to undermine much of the good work that has been done. The Aboriginal and Torres Strait Islander Social Justice Commissioner pointed out that the bill undermines important initiatives such as circle sentencing and Koori courts, which have been sought in order to engage with aspects of Indigenous culture, customary law and practice in a positive way. These initiatives have been reported as having a positive effect on repeat offending, and they should be supported not undermined. But the fact is that, with this flawed legislation, if the bill is passed it will have real and negative consequences for initiatives like circle sentencing, which have had such a positive effect on many Indigenous communities. It will do nothing to tackle the very serious issues it purports to remedy.

This bill will not halt the violence experienced by Indigenous people living in remote communities. Importantly, there is no scope within the bill, or from what the government has shown in other policy areas, to address the root causes of this abuse. The bill does not deserve the support of the House. There is nothing in this bill to address Indigenous poverty, substance abuse, low levels of education or the appalling health conditions faced by many Indigenous people. It is contrary to all the recommendations of those eminent and legal experts who have addressed and considered this issue in the past, including in a bipartisan way members of this parliament in the past as well. It is time for the Howard government to make a solid commitment to eradicate Indigenous disadvantage and not bring forward legislation as odious as this, which we oppose. (Time expired)

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