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

Let us take the Attorney’s example of female circumcision. Let us take that example and examine it. In Australia, we have a number of people who have come as refugees from the Horn of Africa. In the Horn of Africa it is a common cultural practice, as male circumcision is in Australia—abhorrent though it may be to most of us; as a child, I was a victim of the practice of male circumcision—to carry out female circumcision. It is repellent to the views that I hold, it is repellent to the House and we have passed laws which criminalise it.

But is it possible to put this proposition in the mouth of the Attorney: that the conduct of a person who comes to Australia, newly familiar with the norms and expectations of this society, and who, in what they understand to be in the best interests of their child, carries out a procedure of that nature is to be treated precisely the same as a criminal who, in an act of wanton cruelty with no such cultural background, with no belief that they are doing it for the benefit of the girl, carries out that act. It is an absurd and nonsensical proposition. One is an act of wanton cruelty deserving of the utmost and most terrible condemnation by our society; the other demands a criminal response because we are seeking to change behaviour and because our criminal law demands that outcome.

It cannot treat the two things alike, and yet this legislation does so. It pretends that the parents of that child and their sense of what they believe to be best for the welfare of that particular individual are of no note in their moral responsibility. I do not accept that. I absolutely say that the criminal law should remain the same, as it is in Papua New Guinea with causing death, albeit for whatever reason.

But surely there are differences in the appropriate and apt sentence that go towards the nature of the moral responsibility of the perpetrator. To close your eyes to that is simply beyond my understanding, and I would like the Attorney to address those conundrums. Frankly, those are those sorts of conundrums which we hope will not arise in our criminal justice system, but, if they do, they require judges to apply their endeavours to find a just sentence. (Extension of time granted)

It is not to condone female genital mutilation, which no member of this House does—certainly to my understanding no member of this House does—that I make the observation that there is a different degree of moral wrongdoing between parents recently arrived from the Horn of Africa who have that cultural underpinning and others who do not. Is it to be differentiated in terms of the impact between one arrival from the Horn of Africa who may say that they undertook that practice out of a religious understanding of their obligation and another who might, for example, be secular but nonetheless believe that it is in the interests of the child because of a cultural underpinning? Is it to be treated as if those circumstances cannot be taken into account? If we are simply changing the words—deleting ‘cultural underpinning’ and inserting ‘religious understanding’ so that the two are synonymous—we change nothing and this government is going through a charade, abusing the responsibilities in its hands to create a sense in the Australian community that it is achieving something of a substantive nature when all it is doing is shifting and juggling the words.

Finally, how would the Attorney deal with those cultural underpinnings which have traditionally been part of the European culture? We used to, until recently, for example, have a defence of provocation—I think some states still do—which accepted as part of a reduction in sentence and the definition of murder the fact that someone was so overwhelmed with their passion when they found their partner, for example, having an affair with a person that it reduced their moral culpability. It was built into the offence provisions. We actually have a number of offence provisions in our own law which bear through the way in which we have imposed and embedded our cultural understandings of responsibility and blame in the substantive law. Does the Attorney propose overturning all those provisions? Of course not, because they are our cultural understandings embedded in the law. He merely wishes to overturn those of others.

I believe that this law is misplaced and unnecessary. It embarrasses me to stand here in this House and to find the time of this House being taken up in this way for what is essentially a continuation of the abuse of Indigenous Australians, which has been perpetrated for this last decade by a government that is increasingly abnegating its responsibilities and shifting the debate in relation to Aboriginal affairs towards blacks as perpetrators, blacks as offenders and blacks as marginal—not people that have to be incorporated into a larger society through a recognition that they have been dispossessed through the Australian settlement and that we do need to build in structures to build upon, to recognise and to respect Indigenous culture.

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