Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I present the explanatory memorandum to this bill. I move:

That this bill be now read a second time.

The Crimes Amendment (Bail and Sentencing) Bill 2006 ensures that all Australians are treated equally under the law and that criminal behaviour cannot be excused or justified by customary practice or cultural law.

At the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities, held here in Canberra last June, the Australian government expressed serious concern about the high level of violence and abuse in Indigenous communities.

Following the summit, we called on all state and territory Labor governments to work with us to ensure that all Australians are equally subject to the law and that all Australians can expect the same protection under the law.

This issue was also tackled by the Prime Minister and state and territory Labor leaders at the July Council of Australian Governments meeting, who agreed that the law’s response to family and community violence and sexual abuse must reflect the seriousness of such crimes.

Criminal behaviour can never, in any form, be excused, justified, authorised, required or rendered less serious because of customary law or cultural practice. Nor has it ever been intended that customary law or cultural practice should be used to aggravate the seriousness of criminal behaviour.

The Australian government firmly rejects the idea that an offender’s cultural background should automatically be considered, when a court is sentencing an offender, so as to mitigate the sentence imposed.

Likewise, in the process of granting bail to an alleged offender, this bill will ensure customary law or cultural practice cannot be used as an excuse that the criminal behaviour concerned is somehow less culpable. All Australians, regardless of their background, will thus be equal before the law.

At the intergovernmental summit in June, the Commonwealth also indicated that it would show leadership and review bail provisions to ensure that adequate protection is given to alleged victims and potential witnesses, especially those who live in remote communities.

Victims and witnesses in remote communities face particular difficulties when alleged offenders are released, and the proposed amendments to the Commonwealth bail provisions will require the impact on such victims and witnesses to be considered in the process of granting bail to the alleged offenders.

The recommendations of the Royal Commission into Aboriginal Deaths in Custody were also considered during the formulation of the amendments in this bill. The Australian government is concerned about the relatively high rate of incarceration of Indigenous Australians and the number of Indigenous Australians who die in custody. However, there is no recommendation in the royal commission’s report to the effect that sentences commensurate with the relevant crimes should not be imposed on offenders and that victims and witnesses should not be protected from such offenders.

The high levels of family violence and child abuse in Indigenous communities is appalling. The Australian government are committed to protecting Australians from criminal behaviour, and those who are most vulnerable are obviously those most in need of protection.

This bill is only one element of our approach to addressing these difficult issues. The amendments in the bill are complemented by the law enforcement initiatives which include the creation of a National Indigenous Violence and Child Abuse Intelligence Task Force to facilitate the sharing of information and intelligence on crimes of violence and child abuse in the Indigenous community. There are also initiatives underway for community legal education and judicial cultural awareness training. These initiatives are in addition to actions that the Australian government is already undertaking to address complexities that Indigenous Australians face within the justice system, including initiatives through the national community crime prevention programs, the Prevention, Diversion, Rehabilitation and Restorative Justice program, and the Family Violence Prevention Legal Services program. The Australian government will continue taking practical steps to improve the lives of all Australians, whether they live in cities or in remote communities.

I thank the Senate Standing Committee on Legal and Constitutional Affairs for their consideration. When the bill was in the Senate, the government addressed the committee’s concerns by adopting recommendation 1 in principle, by giving consideration to customary law and cultural practice. Specifically, if a court cannot reduce the penalty under legislation then it should also not be able to increase the penalty.

The Australian government will continue to work with the states and territories to improve Australia’s justice system. In this regard, the Australian government encourages the states and territories to follow our lead and adopt similar sentencing and bail provisions.

In the Senate, Senator Ludwig raised a matter in relation to provisions that deal with a court exercising powers to take into account customary law or cultural practice for excusing, justifying, lessening or aggravating the seriousness of the criminal behaviour. These provisions enable a sentence to be waived in particular circumstances, taking such matters into account. It also prompted the government to look at some other issues where cultural background and religious beliefs were referred to in the Criminal Code. For that reason, issues relating to the Crimes Act, where the conduct of a forensic procedure might be undertaken, could be avoided if a person’s religious or customary beliefs were taken into account. It is in that context that I will be moving amendments at the committee stage to reinforce the principal message in this legislation on cultural backgrounds.

The government intend that cultural background will be removed from section 19B(1)(i) of the Crimes Act. We will add a new subsection to section 19B to ensure that, when a court exercises its powers under section 19B, it cannot take into account any form of customary law or cultural practice as a reason for excusing, justifying, requiring or lessening or aggravating the seriousness of criminal behaviour.

We will also remove reference to cultural background and religious beliefs from paragraphs 23WI(3)(c), 23WO(3)(c) and 23WT(3)(c) of the Crimes Act. In similar paragraphs, we will repeal paragraph (d) of the Crimes Act to remove a requirement for a constable, senior constable or magistrate to consider customary beliefs of an Aboriginal person or a Torres Strait Islander before requesting consent or making an order to conduct a forensic procedure.

We will also add a new subsection to sections 23WI(4), 23WO(4) and 23WT(4) so that a constable, senior constable or magistrate will be able to consider religious beliefs, where appropriate, when deciding whether there is a less intrusive but reasonably practicable way of obtaining forensic evidence. I make these points, because we will be ensuring that the principle that we believe is appropriate in dealing with these matters also applies to waiver and forensic evidence in the same way that we intended that it should apply in ensuring that such factors are taken into account in mitigation and similarly in granting bail.

Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Unfortunately, the debate on the Crimes Amendment (Bail and Sentencing) Bill 2006 will not be a pleasant one. As the Attorney-General is no doubt aware, this matter has already been dealt with in another place. Labor opposed the bill in that place and will again oppose the bill here in this House. The reason the debate will be, I would think, particularly poor by the standards that we as law makers would hope we use in this place is that less than 15 minutes before we walked in here, during one of the divisions we have just had, I was handed the amendments that the government will now move to this bill as a result of its party room meeting this morning.

Whilst some intention to move some amendments was flagged by our representative in the other place this morning, the amendments have not been seen until now and we will be dealing with them, of course, as the Attorney has flagged, in the detail stage of the debate. We will save our more detailed comments about those amendments until that point in the proceedings. But when this bill pretends to be about dealing with Indigenous violence or violence in Indigenous communities and when it pretends it is about providing some solutions to people, and when we look at the content of the original bill, it does highlight not only that we think it is actually a complete distraction but that the government, by the way it is just doing it on the run and making changes to extra bits and pieces all along, has no intention of dealing with this seriously and no intention of making sure that we have good legislation that is properly considered.

For example, the Attorney has mentioned that in the amendments that have just been provided there will be changes to forensic procedures: an entirely different section of the act—nothing that was there when the bill was originally tabled in the Senate, nothing that the Senate committee dealt with and not something that came as a result of recommendations from the Senate committee. And the government wants to introduce them here and vote on them in a number of hours. It expects that that is the best way for us to make decent laws for the country. We are very critical of that approach, just as we are critical of the approach that the government has taken in using this as a scapegoat, if you like, or as a fig leaf to try to cover up for a minister—the Minister for Families, Community Services and Indigenous Affairs—who has really not been able to come up with any practical and realistic ways of dealing with this problem. The government is pretending that taking this action of trying to amend the Crimes Act will deliver some relief to Indigenous communities.

Labor believes that this is a fundamentally flawed bill. It purports to tackle ‘the relatively high level of violence and abuse in Indigenous communities’—I think that is a quote from the explanatory memorandum. But in reality the terms of this bill will achieve nothing of the sort. The truth of the matter is that the bill is nothing more than a legal fig leaf to cover the inadequacies of the minister purportedly responsible for Indigenous affairs. It is nothing more than a distraction. It has been a waste of the time and energy of this parliament, the media and the Public Service at what I know the Attorney is well aware is a very busy time of the year in legislative terms. Even more significantly, this bill is a distraction from 10 long years of failed Howard government policy in Indigenous affairs and a distraction from finding genuine practical solutions to the very serious problems of violence and sexual abuse in Indigenous communities.

So, after 10 years and two national summits on violence in Indigenous communities, all this government has been able to come up with is this minor distraction. At a time of national prosperity—a prosperity built by the previous Labor government—the Howard government has managed to leave Indigenous Australians for a large part worse off than ever before. And this bill will only take us further in the wrong direction.

It is also interesting to note that this bill and the particular changes that are proposed in it represent a complete 180-degree turnaround by the government. When you look at the position taken by existing and former members of the government on the Crimes and Other Legislation Amendment Bill 1994, which first introduced the reference to cultural background into subsection 16A(2) that this bill now removes, who do you find supported that bill? It was the members opposite—at that time the opposition. Let us take a look at what Daryl Williams, who later became Attorney-General in the Howard government prior to the current Attorney, had to say back in 1994:

The bill will add the words ‘cultural background’ to this list. The effect of this will be to make the cultural background of a convicted federal offender a matter which a court must take into account when passing sentence or making an order. One could interpolate and say that, if the Crimes Act did not specify any matters, it would not be necessary to introduce the cultural background of the offender. But, given that there is something of a checklist for the judges and magistrates to refer to, an exclusion of an item such as the cultural background could suggest an intention that it not be taken into account. This amendment is appropriate.

Unfortunately for Mr Williams, this government has overridden his former position and decided that it is no longer appropriate for cultural background to be included in the so-called checklist for judges and magistrates to refer to. Since Mr Williams is no longer in the parliament it would be unfair to speculate on whether he would now be eating his own words, but I am sure that there are a number of people on the government side who baulk at the step that the government has taken and can easily see that this is putting politics and distractions before practical initiatives or measures that might actually make a difference to the community. There are others who spoke in favour of those amendments, including the current Minister for Justice and Customs, Senator Ellison, who had this to say on the 1994 changes:

I would indicate that the coalition agrees with the inclusion of cultural background in relation to sentencing principles. I believe that is an aspect which is relevant in a country such as Australia, where there are diverse cultural backgrounds. In my state of Western Australia there have been cases where tribal Aboriginals have been dealt with before the courts and, of course, they have operated under a different cultural background. They have also had to face some sort of penalty from their own tribe and clan. Also, some aspects of a culture bring out different sorts of behaviour in people, and that has to be recognised. In particular, this relates to Aboriginal offenders, but it could apply to anyone in the community.

As I say, this is the current justice minister, the person actually responsible for introducing this bill in the other place. But what did we see from Senator Ellison on 8 November when this legislation passed through the Senate? We saw a complete backflip as the minister argued in favour of returning section 16A of the Crimes Act to its pre-1994 state. Senator Ellison argued:

... you should not place too much emphasis on cultural background to the exclusion of other factors and, in fact, to the extent that justice may be distorted.

It seems to me that Minister Ellison’s own views have been distorted somewhat in that period of time, and I am sure if his view has not changed somebody has obviously required him to nevertheless pursue this course of action, even when anybody outside this place with even a modicum of interest in criminal law would understand that this is a complete distraction. It was as if Senator Ellison were implying that it is okay for justice to be distorted when the other factors listed in subsection 16A(2), which will continue to be there, were considered—just not cultural background. What a ludicrous position to take!

It also appears that, when the government was selecting the degree of difficulty for this backflip that it has taken, it thought it might be an easy routine that it had chosen, but to Senator Ellison’s amazement this turned out not to be the case when the backflip backfired in his face earlier this month. My colleague Senator Ludwig asked the minister during the debate in the other place why the government had chosen to remove the reference to cultural background in relation to factors considered during sentencing yet retain the reference to cultural background among the factors to be considered when a court is deciding whether to dismiss charges or discharge an offender without proceeding to conviction under Section 19B. I understand that this is one of the issues that are being picked up in the late amendments that the Attorney has commented on and has indicated that he is going to move in the consideration in detail stage.

It may be, as a result of the embarrassment of that question and the highlighting of the clear lack of consistency in what the government is doing, that after delivering a series of bungled attempts to explain this apparent inconsistency Senator Ellison returned at the end of the debate in the Senate to say that he would raise with the Attorney-General the matters that Senator Ludwig raised in the debate. I have a note here from my colleague saying that he hopes, given the handling of this matter by the minister for justice, that the Attorney might be able to do a better job today. Unfortunately with the time frames that are allowed I am not in any position to know whether or not that better job has been done yet, but we will know that by the time we get to the consideration in detail stage.

I think the much more important point this exposes is how this legislation is all about creating a distraction for the ministerial failures of Mr Brough rather than dealing with making sure that criminal legislation that is in place at the Commonwealth level is both good law and consistent law. If the government were serious about fixing these problems with the law, they would have taken a much more consistent, thorough and careful approach.

Allow me now to turn in some detail to the contents of the bill. As the short title suggests, it makes changes to two specific areas of the Crimes Act 1914: the provisions for granting bail and the list of matters that courts are expected to take into account during sentencing. With respect to the bail provisions, the inserted section 15AB lists new matters to be considered in granting bail, namely the impact the decision may have on victims or witnesses, potential or otherwise. These new measures, at least in sentiment, may be of some merit. Indeed this section was the only element of the amendments to receive any reasoned support at all from the non-government submissions to the Senate inquiry. That support came from the Aboriginal Legal Services of New South Wales and the Australian Capital Territory, but they stopped short of providing full support, objecting to subparagraph (1)(b), which prohibits the consideration of customary law and cultural practice in bail deliberations. Equivalent prohibitions are made in the context of sentencing, so I will deal with both incidents when I get to those measures, and it is worth noting the government ended up amending those in the Senate.

There are two important points worth noting about this section. Firstly, as we speak this matter is still under review by the Council of Australian Governments. On 14 July this year a communique from COAG stated:

COAG has asked the Standing Committee of Attorneys-General (SCAG) to 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.

This makes it grossly premature for the government to be making these amendments. After all, SCAG has not yet had the opportunity to present its report and COAG has not been given a chance to consider any subsequent recommendations. So if this bill is passed there is a strong possibility that we will be back here again in another six or 12 months time, or some period after that, to deal with those recommendations from SCAG or COAG.

Senator Ellison tried to argue that a pending review by SCAG and COAG should not be used as an excuse for standing still, yet this is exactly what the government wanted to do with Senator Ludwig’s private senator’s bill, the Crimes Amendment (Victim Impact Statements) Bill 2006, which sought to amend provisions relating to sentencing in the same part of the Crimes Act 1914. In that debate, government senators argued that it would be ‘premature for the government to consider the use of victim impact statements in isolation’, as it was already considering related recommendations from the Australian Law Reform Commission. As Senator Fifield advised:

We should take our time. We should make sure that we get it right. We should make sure that we take into account all relevant factors in relation to sentencing policy so that we ensure that we get this right.

They are all very fine sentiments, but unfortunately they were not applied to the government itself in the way that it is dealing with this particular bill. In the case of the bill we are considering here today, the government has not followed the senator’s advice one iota. By giving us yet another raft of amendments with little preparation, with little thought and, in respect of the forensic procedures, with no assessment at all by the Senate committee process, how could we say that we are taking the time, as Senator Fifield has advised us to do, to get it right? The government clearly is not doing that.

Instead of proceeding through SCAG, as agreed with the states and territories, the Howard government is now legislating unilaterally. This shows just how arrogant and consumed with power this government is becoming. It also shows that the only part of the bill that possesses any possible merit has been acted on in direct contradiction with the government’s own commitments. By disregarding the COAG agreement relating to bail, the government’s attempt to rely on other parts of the communique to justify the remainder of the bill is exposed as an absolute farce.

Let me turn to the sentencing provisions and the removal of reference to ‘cultural background’. The second substantive change that the bill seeks is the removal of the reference to ‘cultural background’ that appears in subsection 16A(2), which lists the matters that courts should have regard to when passing sentence. In its second reading speech, the government rejected ‘the idea that an offender’s cultural background should automatically be considered, when a court is sentencing that offender, so as to mitigate the sentence imposed’. This raises the question of whether the government before drafting this bill even bothered to read the existing provisions of the Crimes Act, because when I turned to my copy of the act—and I know my colleagues in the Senate have done this too—I read the following paragraph:

In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court ...

Let us think for a moment about the word ‘relevant’, because although subsection 16A(2) does direct the court to take into account a range of matters, including cultural background, it must only do so where those matters are relevant, and it is left to the court to determine whether or not a matter is relevant. If the government wants this legislation to be taken seriously then it cannot just wander into the parliament and reject some unattributed idea. Ideas may be important, but in the end we are here as legislators not philosophers and our currency is the written law.

When bringing changes forward it is incumbent on the government to point out the specific failings in the law as it stands and explain in full how these changes will remedy them. To do this, of course, you need to actually read the provisions of the act that is going to be amended, and it seems to us that the government has not taken even this most basic step. Instead of basing its case on both fact and experience, it has relied solely upon some idea, and, as I said, an unattributed one at that.

When asked to identify where the consideration of customary law or cultural practice has led to inappropriately lenient sentences the Attorney-General’s Department failed to provide a single case to the Senate committee. And when 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. I think it highlights how silly the government has been in the drafting of these provisions and its determination to pursue some other sort of agenda, like distracting from the minister’s other failings, rather than trying to make our law the best and most appropriate law it can be.

I will turn now to the original amendments that will direct authorities in granting bail under subparagraph 15AB(1)(b) and those directing courts in sentencing under subsection 16A(2A) to exclude from consideration:

... any form of customary law or cultural practice as a reason for excusing, justifying, authorising, requiring or rendering less serious the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.

The Senate Legal and Constitutional Affairs Committee argued that this original drafting would have meant:

... that a court could not take into account customary law or cultural practice to render criminal behaviour less serious but could consider these factors if it rendered criminal behaviour more serious.

Fortunately the government has taken on board the Senate committee’s view in this instance, an all too rare occurrence these days. But this only serves to reinforce the hasty fashion in which the bill has been thrown together. Although it is a clear improvement, neither the bill as a whole nor the individual provisions are in any way sufficiently redeemed.

The Senate inquiry into the bill was on the whole quite scathing. In the majority report, specific attention was drawn to the lack of consultation that occurred in drafting the legislation—something that appears, unfortunately, to be an emerging trend under the Howard government. The consequences of inadequate consultation can be seen in the almost unanimous denigration of the bill by those who gave evidence to the committee.

The key criticisms are summarised in the majority report as follows: the bill is both misguided and ill-conceived, and it will do little in a practical sense to address the violence and abuse in Indigenous communities; the bill risks further discriminating against minority cultures; the bill runs contrary to the findings of major relevant inquiries, particularly the Royal Commission on Aboriginal Deaths in Custody; the bill will restrict judicial discretion; and the bill may undermine important initiatives involving Indigenous customary law, such as circular sentencing. In addition to the recommended amendment mentioned previously, the majority report also urged the government not to remove the reference to ‘cultural background’ from the act. Although all of the recommendations made by the majority members would undoubtedly improve the bill, as noted by the minority report prepared by the Labor senators on the committee, they would ‘ultimately leave it gutted’. As such, the majority report’s attempt to salvage the bill was just another face-saving exercise for the minister for Indigenous affairs.

As mentioned earlier, these changes will also have almost no effect on violence and sexual abuse in Indigenous communities. Yet this is precisely what the bill purports to impact upon. Why is this the case? Because in the main these sorts of offences are covered by state and territory legislation—something noted by the Senate committee and almost every organisation that made a submission to the inquiry but seemingly missed by the government.

Just as some indication, looking at federal prisoners who might be covered by our Crimes Act, as of 1 September 2006, three-quarters were incarcerated under drug importation offences. Looking at the 74 prisoners convicted under the Crimes Act, which make up the bulk of the residual, more than half of those were related to social security. So just how these changes are going to make any impact upon the serious problems of domestic violence and sexual abuse is, frankly, anyone’s guess. Mind you, we are not here to play a guessing game, especially when it comes to issues as serious as these. This is something that we will never forgive the government for: exploiting the goodwill of the wider community and this parliament and our desire to stamp out violence and sexual abuse wherever it is found to divert attention from the minister’s failings. This is a sad joke by the government. The bill is a nonsense bill and Labor will not be supporting it.

I will make some other brief comments about the amendments that have just been provided to us. As I said, we have only had a very short period of time to look at those and we will deal with them in more detail when we get to the consideration in detail stage. It is of concern to us not only that the government drafted such a poor bill initially—which, when it was dealt with by the Senate committee, there were many recommendations to change; even the coalition members could see how inadequately these provisions had been drafted—but that it appears that the majority of the amendments the government now wants to move are entirely unrelated to the provisions of the initial bill and to the inquiry conducted by the Senate committee. Nowhere has there been any indication that forensic procedures were going to be part of this, yet the additional amendments deal particularly with forensic procedures. It appears either that the Attorney does not understand that forensic procedures are not bail and sentencing procedures or, alternatively, that he is seeking to create some sort of omnibus bill where none existed before.

It would be more appropriate for us to properly examine these amendments rather than have them moved as last-minute amendments to what is already a very poorly drafted and inadequate bill—rather than just tacking them on without the proper consideration of the parliament and the party rooms, and, much more importantly, of the community, who have had no opportunity at all to comment on these other provisions. These amendments represent embarrassing and increasingly erratic law making by the minister for justice and the Attorney-General. It is a worry to us that the government would use this opportunity to make such significant changes without adequate consultation.

I will reserve my remaining remarks on the particular amendments until they are moved later in the day in the consideration in detail stage. But we do flag our opposition to the bill and to the government’s incredibly inadequate handling of the issue of violence within the community and its using this as a distraction when much more important practical measures should be being taken.

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

Unlike the previous speaker, the member for Gellibrand, I rise to strongly support the Crimes Amendment (Bail and Sentencing) Bill 2006 and I want to address some of the criticisms that she has made of it. Firstly, she spent a lot of her speech going through comments that had been made by members on this side of the House when the changes were initially introduced in the dying days of the Keating government in 1994. I think it is fair to say that the thinking in this area of government in Indigenous affairs has evolved significantly since that time—on both sides of the House—and I think these changes reflect some of that new thinking. She spent a lot of time criticising Minister Brough, the Minister for Families, Community Services and Indigenous Affairs, for his handling of this policy area, but I think what he has done in highlighting these issues has been tremendously courageous. When he highlighted these issues you knew that all the usual suspects would come out and call him a racist and say it was just the oppressive Howard government dealing with these issues, but I think these problems have been swept under the carpet for far too long. I commend him on taking the stance he has in trying to actively deal with these issues.

I think it is vital that this parliament take a very strong position that categorically says to all Australians that we are all equal before the law and, as such, we are all fully entitled to the protection of that law. To say that cultural background or coming from a particular community represents mitigation for committing a crime is an appalling message for this parliament to send. This is an issue that requires Commonwealth leadership, even though a lot of the criminal law where the changes will need to be made comes under state and territory jurisdiction. This bill provides the leadership to the states and territories on this issue, and I note that the sentiments expressed in it were endorsed by COAG.

This bill represents only one part of an overall process to deal with extraordinarily difficult issues of family violence and child abuse within Indigenous communities. I cannot say too strongly that every Australian, including every member of an Indigenous community, is entitled to the protection of the law. The acts of criminals should never be justified and they should not be rendered less serious because of customary law or cultural practice. I reject the idea that a person who is found guilty of a crime should have their cultural background automatically considered, when a court is sentencing that offender, so as to mitigate the sentence that is being imposed. This bill will stop any customary law or cultural practice from being taken into account in the process of granting bail so that the criminal behaviour concerned is not seen to be less culpable.

I represent in this place a seat, Stirling, that is extraordinarily culturally diverse. In that way it is a very good reflection of the country as a whole. We have immigrant populations that represent every wave of migration to Australia, from the post-World War II era when the arrivals were southern Europeans, through to the large Vietnamese migrations of the mid-seventies and now to the latest arrivals, under Australia’s very generous humanitarian program, who are coming in particular from North Africa. Within the seat of Stirling all the world’s religions are represented. It is a microcosm of Australia in the sense that you can find representatives there of any particular cultural group. I often attend citizenship ceremonies—the City of Stirling, my local council, holds them every three weeks—and literally hundreds of people are inducted at every ceremony. So the seat has a growing and very diverse population. I think that is a good reflection of one of this nation’s strengths, and this diversity actually enhances us. But nobody has ever come to me and said that they think we should have a two-speed law based on culture in this country. We do not have a situation where people have differing levels of citizenship or differing protection through the law. As soon as you become a citizen of Australia you are 100 per cent equal to anybody who was born here or whose family goes back generations here.

This practice of all of us being equal is a vitally important part of our legal framework. But it has been infiltrated by the idea that a person’s cultural background is a valid excuse for committing criminal actions. I think if we follow this line of thinking—and I am not speaking on the basis of hard evidence, but I think it is reasonable to assume that the victims of crime would often be victims at the hands of somebody from a similar background to theirs—then we need to ask what it effectively means for the cultural groups that we are talking about. What it means, Mr Deputy Speaker, is that they are not going to be as equally protected as you or I are in this place. I think it would be an absolute disaster for the parliament to propagate a view like that. The term ‘cultural background’ was inserted into the Crimes Act in 1994 in the Keating government’s response to an Australian Law Reform Commission report entitled Multiculturalism and the law. I think this provides us with an excellent example of the excesses that politically correct multiculturalism can generate.

I love the diversity of my seat but, as I have said, nobody has ever expressed the desire to me that we have separate laws for different cultural groups. I think the excesses of a policy like that are no more evident than in the treatment of Aboriginal Australians. It seems that in the minds of some in this place the protection of Australia law does not apply equally to everybody. The most disturbing example was one that received quite a lot of publicity at the time, and that was when a totally inadequate sentence was handed down to an Aboriginal man in the Northern Territory who had been convicted of physically and sexually assaulting a 14-year-old girl who had been his so-called promised bride. The judge handed down a sentence of a mere four months in jail because he took into account the cultural practice of having a promised bride. I think some of the difficulties that can arise when traditional Aboriginal culture collide with Western society are obvious. But if we are going to accept that cultural practices that injure or harm young people are more acceptable in the Aboriginal culture than they would be in our own then we are going down a very slippery slope. If we were to say that then we would say that this particular 14-year-old Aboriginal girl is not entitled to the same protection of Australian law as any other Australian 14-year-old. I think that is an outrageous proposition.

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 sends the exact 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 of taking into account cultural relativities is not restricted to Aboriginal communities. In recent very widely publicised 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. Fortunately, the court did not accept that.

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

That’s right; the court did not accept it.

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

But the point is that it is being argued. The fact that it has been argued gives us a good indication that these ideas are becoming acceptable in our society. As a parliament we need to say that they are not. We cannot accept a two-tier legal system in Australia without saying that the protection offered to some is less than that offered to others. 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 this parliament needs to put its stamp on today. We must say very strongly that all Australians are entitled to 100 per cent protection of the Australian law.

This parliament cannot legislate with respect to criminal law in the states and territories. I suspect that the passing of this legislation through the parliament will send a strong signal to them and, hopefully, provide a strong lead for them to follow. If we do not provide leadership on this issue we will, as a parliament, be found very much wanting. We need to send out the message, and send it very strongly—and I ask the state and territory parliaments to follow—that as a parliament we represent all Australians and we do not accept that cultural relativism has any place in our legal system. I strongly endorse the sentiments in this bill.

Tanya Plibersek (Sydney, Australian Labor Party, Shadow Minister for Childcare) Share this | Link to 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.

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

Order! It being 2 pm, the debate is interrupted in accordance with standing order 97. The debate may be resumed at a later hour and the member will have leave to continue speaking when the debate is resumed.