Michael Keenan (Stirling, Liberal Party) Share this | Link to this | Hansard source

I move:

That this House reaffirms that :

(1)

every Australian is entitled to the full protection of Australian law;

(2)

cultural practices in any community do not lessen that protection; and

(3)

human rights override cultural rights.

My seat of Stirling is a fantastic reflection of the Australian way in that it is the most culturally diverse seat in Western Australia. Every major immigrant population is represented, from the early migrants of the post World War II era from northern and southern Europe through to the later arrivals from Vietnam and China and now the newest arrivals from Africa and the Middle East who are benefiting from Australia’s generous humanitarian program—a program that is unrivalled across the globe in its generosity. All of the world’s major religions have places of worship in Stirling, from those of the various Christian faiths to Sunni and Shiah mosques, Hindu and Buddhist temples and a Jewish synagogue.

I enjoy attending the frequent citizenship ceremonies that are held by the City of Stirling, where a glance across the crowd gives you a very good indication that Australia’s newest citizens are coming from every corner of the globe. I appreciate this diversity and I believe it is one of our nation’s greatest strengths. It enhances the country economically, socially and culturally. One of the things I make clear when I address the new citizens at those citizenship ceremonies is that, from that night, they will share exactly the same rights and responsibilities as every other Australian citizen. We do not have differing levels of citizenship in this country: the newest Australian citizen, who meets the criteria to take out citizenship and does so, is no more or less a citizen than someone who was born here and whose family goes back generations.

But this practice, where all Australians are equal before the law and are entitled equally to its protection, is being diminished by the practice of taking cultural rights into account within our legal framework. There has been an insidious infiltration of the idea that a person’s cultural background can be used as an excuse to mitigate particular criminal actions. This is nowhere more evident than in the treatment of Aboriginal Australians. It seems that in the minds of some the protection of Australian law does not equally apply to everyone.

There is no more disturbing example of where this can lead than the completely inadequate sentence handed down to an Aboriginal man in the Northern Territory who was convicted of physically and sexually assaulting a 14-year-old girl who had been promised to him as his bride. The judge, taking into account cultural practice, sentenced the man to a mere four months in jail. This judge later admitted that he was wrong, and I do not wish to personalise this particular motion as being against him, but I read in the media reports of this incident that he had children of a similar age and I doubt that he would consider that to be an appropriate sentence if it were one of them who had been so viciously assaulted.

I understand the difficulties that arise when traditional Aboriginal culture collides with Western society, but we absolutely must not accept that practices that injure or harm young people are any more acceptable in the Aboriginal culture than they would be in our own. For us to do that would be to say that a 14-year-old Aboriginal girl is not entitled to the same protection of Australian law as we would expect for the children of any one of us in this place. We would completely shame ourselves if we were to do that.

One of the reasons behind our system of justice is that it deters people from committing crimes. Lenient sentencing that is prepared to take into account cultural factors therefore sends a signal that the protection available to members of that community is not the same as the protection that is offered to others. If our legal system sends that signal that it is prepared to judge people based on their background, then the message will obviously be received that these crimes are somehow less horrifying.

This practice is not just restricted to Aboriginal communities. In recent trials in New South Wales for vicious gang rapes, counsel for the defence argued that the rapists’ backgrounds lessened their responsibility for committing these crimes. We cannot have a two-speed legal system in Australia without saying that the protection that that system offers is lessened because of somebody’s background. It is a straightforward principle that I have heard affirmed by the UN High Commissioner for Human Rights that human rights trump cultural rights, and it is a straightforward principle that we in this parliament need to strongly say that we support today. We must say very strongly that all Australians are entitled to the complete protection of Australian law. (Time expired)

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

Is the motion seconded?

Steven Ciobo (Moncrieff, Liberal Party) Share this | Link to this | Hansard source

I second the motion and reserve my right to speak.

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

No-one in this House condones violence and everybody in this House would say clearly that under our legal system lawyers will plead and judges and juries will rule. But, hearing the member for Stirling speak to the motion, I am still not quite sure why this motion has been brought into the House. That the House reaffirms ‘that every Australian is entitled to the full protection of the law’ is unexceptional. Indeed, who could disagree? That is why I invite the member to consider that the Senate last week voted to hold an inquiry into the practice of state and territory governments withholding the wages of Aboriginal and Torres Strait Islander workers—and I am assuming the member includes those actions within the contemplation of this motion. Is the member referring to the provision of sufficient police resources in communities that are under stress—

Michael Keenan (Stirling, Liberal Party) Share this | Link to this | Hansard source

Yes, absolutely.

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

and that experience above average levels of criminal activity that requires policing? I hear the member say yes. In that case, good. To that extent, citizens of, for example, Wadeye have the right to levels of policing comparable with those of any other community—something that has been conspicuously absent over the entire period of the Northern Territory’s CLP government and also, regrettably, up until today.

The motion also calls on the House to affirm that ‘cultural practice in any community does not lessen that protection’. Where is the evidence that it does any such thing? I refer the member to the Supreme Court of the Northern Territory case of the Queen v James Goutjawuy Gondarra to enable the member to get some first-hand knowledge of how cultural practice can increase and not lessen that protection. In that case the accused was additionally subject to the cultural law processes and practices of his elders and, as a consequence of that, showed remorse and prospective signs of rehabilitation. It is in these cases that cultural practice is a boon and an additional benefit to the legal system, not a deficiency.

I think there has been some confusion over how the law actually operates, and I invite the member for Stirling to contemplate that there is really no such thing as a customary law defence, as has been bandied about recently and which has so energised those whose perceptions have controlled their capacity to reason. I remind the member that the question concerning cultural observation in any case before our courts relates to mitigating circumstances, which in the case of an assault could include provocation, the mental state of the accused and elements of a cultural nature. There is no cultural context, for example, that sanctions child abuse. That fact has been made eminently clear by Aboriginal leaders, men and women across the country in recent times.

The final part of this motion reads that this House reaffirms that ‘human rights override cultural rights’. This is a confusing wording. Did the member advance any instance of cultural rights overriding human rights? Is the member proposing that we should have some form of recognition of human rights in our Constitution—I would be pleased to hear that from a government member opposite—or that we would enact migration laws which specifically upheld human rights as enumerated in the international declaration of human rights and associated instruments? If that is the intent of the member’s motion, then bring it on.

Human rights include the right to practise culture. If the member is concerned at the recent terrible stories of assault in Indigenous communities—as I and many others are, and as the people living in those communities are—then he should reflect on what it is that has brought us to this current state. Speaker after speaker at a forum today in the parliament, entitled ‘Ending violence in Indigenous communities’, made the point time and time again that it is rights and culture that need to be strong. Petrol sniffing, youth suicide and child abuse are products of recent history, symptoms of a bigger problem. They in no way represent Indigenous culture, any more than dropping millions of litres of napalm on Cambodian villagers in the Vietnam War represented Western culture. These actions represent cultural breakdown, and members are confused if they believe the situation can be better comprehended and responded to by lodging motions of this kind in this House.

Steven Ciobo (Moncrieff, Liberal Party) Share this | Link to this | Hansard source

I am pleased to rise to second the motion of the member for Stirling:

That this House reaffirms that :

(1)

every Australian is entitled to the full protection of Australian law;

(2)

cultural practices in any community do not lessen that protection; and

(3)

human rights override cultural rights.

Being a liberal democracy, Australia is founded on one fundamental keystone. That keystone is that all Australians are equal before the law, irrespective. And that message is one that has been at the centre of Australian democracy for well over 100 years.

Of concern to both me as the member for Moncrieff and the member for Stirling has been recent practice, although not reflected on statute books and although perhaps not incorporated into Commonwealth precedent—though increasingly that would appear to be the case—whereby cultural diversity is increasingly used as a mitigating factor with respect to criminal activity. Despite comments by the member for Kingsford Smith that, in some instances, cultural relativity is a factor that imposes a harsher penalty, we as a parliament are not in the business of creating laws that are based upon some kind of quantification of whether or not cultural relativity makes an offender more or less likely to be punished in a particular way. All parliaments in this country must hold true one central tenet: that all Australians are equal before the law, irrespective—full stop.

Cultural relativities do not hold a place in modern Australia. It is simply unacceptable that Aboriginal Australians have been subject to the most heinous sexual abuse and crimes for which perpetrators are sentenced to four months. It is unacceptable that there have been Australian women subjected to criminal activity because in some way it is implied that cultural factors are an influencing factor in whether or not they are subject to particular abuse or, for example, rape. It is unacceptable, and we all, as Australians, must draw a line in the sand and say value diversity does not have a home in Australia.

A key part of Australia’s background has been this unification of all people irrespective of cultural background, where there is not value diversity. Problems arise, however, when value diversity is thrust forward as some kind of enlightened diversification between cultures and as something that must be embraced and incorporated into modern Australian society if we are truly going to be a kind of showcase to the world of how multiculturalism works. Multiculturalism is certainly not predicated upon value diversity. Alain Finkielkraut in his work, The Undoing of Thought, said:

Is there a culture where there is corporal punishment for delinquency ... where female circumcision is practised, where mixed marriages are forbidden and polygamy authorised? Multiculturalism requires that we respect all these practices ... In a world which has lost its transcendental significance, cultural identity serves to sanction those barbarous traditions which God is no longer in a position to endorse. Fanaticism is indefensible when it appeals to heaven, but beyond reproach when it is grounded in antiquity and cultural distinctiveness.

I do not agree with the thrust of all of his remarks, but I certainly agree with the central tenet that antiquity and cultural distinctiveness are not grounds for saying that we are a more enlightened society. It is not a ground for saying to the Australian people that we will accept past practices, be they Indigenous Australian past practices or religious past practices such as female genital mutilation, for example. All of these are in breach of fundamental human rights—human rights which, in a liberal democracy, ensure that the individual and not the state is the supreme being when it comes to society. What we witness in Australia is an erosion where individuals in certain communities—and the member for Kingsford Smith touched on this with respect to Wadeye—feel the loss of that protection of the rule of law and the consequence is an erosion of society itself. It is unacceptable, and I commend this motion to the House. (Time expired)

Martin Ferguson (Batman, Australian Labor Party, Shadow Minister for Primary Industries, Resources, Forestry and Tourism) Share this | Link to this | Hansard source

Let us be clear: this is not a debate about politics and the rule of law; this is a debate about wedge politics. It is also a clear endeavour by backbenchers in the Howard government to demonise Aboriginal communities and their leadership. I think it is time for all members of this House to recognise the serious problems which confront Aboriginal communities, particularly given the cases of abuse that have been highlighted in recent months. I think it is about time some people stop kidding that we all should not be shocked by what is occurring in Aboriginal communities because of the neglect by the Howard government over the last 10 years.

Let us remember that crimes occur across all sections of the Australian community, whether they are white or black. Let us also remember there is no equality before the law because it relates to your ability to hire counsel at great cost to be properly represented before the courts in Australia. It is time the Howard government stopped pointing the finger. Members of this House need to be reminded that the state of Aboriginal communities is because of neglect by the Howard government over the last 10 years. Let us think about neglect of health, neglect of education, neglect of training and neglect in housing. Think about the problems in Wadeye where there is an average of 20 people per house. The Howard government has failed to put money into improving housing in the Wadeye community. That is the cause of concern in the black community and that is what we ought to be debating today—solutions to real problems on the ground. But you are not interested in solutions to real problems. You are not interested in the litany of facts that show the failures of the Howard government.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The member will address his comments through the chair and call members by their title.

Martin Ferguson (Batman, Australian Labor Party, Shadow Minister for Primary Industries, Resources, Forestry and Tourism) Share this | Link to this | Hansard source

Let us start with health. According to the Australian Medical Association, in 1999-2000 the life expectancy of Indigenous men was 56.3 years, as opposed to 77 years for non-Indigenous men. For women, the difference was 62.8 years, as opposed to 82.4 years. This means effectively that non-Indigenous men have a life expectancy of between 45 per cent and 50 per cent greater than Indigenous men. Let us talk about chronic disease amongst Indigenous Australians.

Michael Keenan (Stirling, Liberal Party) Share this | Link to this | Hansard source

Mr Keenan interjecting

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Stirling!

Martin Ferguson (Batman, Australian Labor Party, Shadow Minister for Primary Industries, Resources, Forestry and Tourism) Share this | Link to this | Hansard source

Let us go to a report by the Centre for Remote Health—a joint venture between Flinders University and Charles Darwin University. It has shown, for example, that between 1979 and 1995 one-fifth of all deaths amongst Indigenous people related to five chronic health diseases: kidney and renal disease—

Michael Keenan (Stirling, Liberal Party) Share this | Link to this | Hansard source

Mr Keenan interjecting

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Stirling is warned!

Martin Ferguson (Batman, Australian Labor Party, Shadow Minister for Primary Industries, Resources, Forestry and Tourism) Share this | Link to this | Hansard source

diabetes; high blood pressure and hypertension; heart attack and related heart diseases; and chronic obstructive airways diseases such as emphysema and chronic bronchitis. What is the Howard government doing about something of general benefit to Aboriginal people and their communities? Let us go to the issue of people with diabetes. In remote localities there are likely to be twice as many as in other localities.

Let us go to the issue of education, which the backbench members did not want to touch on today. Young Indigenous students are twice as likely as non-Indigenous students to have left school before completing year 10 and are half as likely to complete year 12. Indigenous Australians are less than a quarter as likely as non-Indigenous Australians to go to university. Moreover, the number of Indigenous students attending university has declined since 1999. For the first time since the 1990s, there has been a decline in the number of Indigenous students in vocational education at a time when we have an absolute shortage of tradespeople in Australia. Where does the Indigenous community live? In remote Australia, where we need tradespeople to assist with the development of the mining industry, the agricultural industry and the tourism industry.

Let us talk about the real criminals in Australia—those in government who failed to do something about assisting our Indigenous community. I simply say: let us have a debate about the root causes of crime. That is not what this debate is about. Legal responses do not address the reasons behind addictions that can fuel this kind of abuse. The Howard government is failing to recognise that the neglect of Aboriginal communities is creating a pool of young, unemployed, drug dependent men turning to crime—in some cases, horrific crimes. Put resources into solving problems at the source of the problem. If we invest in the communities, invest in health, invest in housing, invest in education and create some real employment in the communities, then we will reduce the crime rates. The crime rates, interestingly, are not that different in some of the suburbs in the electorates we represent where we have the same problems—no educational opportunities and no employment opportunities. Stop running away from the problem—(Time expired)

Sophie Mirabella (Indi, Liberal Party) Share this | Link to this | Hansard source

I rise to support the motion moved by the member for Stirling, which was very ably supported by the member for Moncrieff. The member for Batman talks about wedge politics. The reality is that I know that the member for Batman, in his heart of hearts, is a decent man. He knows more than many in the Labor Party that there are social problems out there and that there are problems because we have failed to accept that there is one law for all Australians. But it is the lunatics in his own party who prevent him, a decent member of parliament, a decent man of decent Labor stock, from addressing the real problems. He knows that those latte sipping, middle-class members who have never got their fingers dirty working as traditional Labor members have in the past do not really understand these problems and he knows they are the ones preventing his party from truly removing the dregs of the middle class that represent the members opposite, as Kim Beazley Sr said. Let us get back to the cream of the working class, Member for Batman.

The first point of the member’s motion is very clear and emphatic. It is about endorsing the rule of law in Australia. The crowning sentiment of Federation was one people and one destiny—a noble and fine sentiment. A century on, we remain one of a handful of nations in the world where the flame of democracy has burned continuously and continues to burn brightly. The member for Stirling has suggested that cultural practices do not lessen an individual’s right to protection under Australian law. It is very hard for the cultural dieticians to accept this, but giving all cultural practices a green light is code for giving the go-ahead for the excesses of customary law. For some in Indigenous Australia, this means the sanctioned rape of women and young children. In some sections of the Islamic community, it means a degraded contempt for women, even perhaps the sanctioning of such barbaric acts as female genital mutilation.

The horrendous case of the 55-year-old Aboriginal elder who bashed and raped a 14-year-old girl because Indigenous customary law stated that she was his promised wife is and has been at the forefront of this debate in recent times. When the elder received one month’s jail for this offence, the Northern Territory Chief Justice, Brian Martin, who handed down the original sentence, admitted that judges and magistrates do get it wrong sometimes and that is what appeal courts are for. That is cold comfort for the 14-year-old girl in question, and that is why members of this fine and noble institution have a right and a responsibility to debate these issues and bring them out into the open. We should not leave it to the timidity of judges who are afraid of being accused of being racist because they uphold one law for all Australians. The left-leaning intelligentsia do not want to talk about these aspects of the debate; they find them rather confronting.

David Hawker (Speaker) Share this | Link to this | Hansard source

Order! It being 1.45 pm, the debate is interrupted. The time for this debate has expired. The debate is adjourned and the resumption of the debate will be made an order of the day for the next sitting.