Michael Johnson (Ryan, Liberal Party) Share this | Link to this | Hansard source

In the Australian parliament, as the representative of the people of Ryan, I have great pleasure in speaking on the Crimes Amendment (Bail and Sentencing) Bill 2006. I very strongly commend it to my electorate and to the House of Representatives. This is an important bill that the Howard government is again putting before the parliament. It is all about reconciliation and ensuring that this is a strong and united country irrespective of whether we are Indigenous Australians or white Australians. I think this is a piece of legislation that is very important for all of us to take note of.

I want to briefly mention the notion of reconciliation before I go on to the substance of the bill because I think it is important. Reconciliation with our Indigenous communities is one of the most important challenges facing our nation. I think that for any federal government this should always remain a priority irrespective of the political colour of that government. I think that true reconciliation is something that needs to be worked on—it is a work in progress—with all stakeholders of goodwill coming together. I want to quote the views of this side of the parliament as to what embraces true reconciliation as expressed by the Prime Minister in his Menzies lecture in December 2000 on the very important issue of Indigenous Australians. He said:

True reconciliation is, in our view, to be best found within practical means to improve the well-being and happiness of indigenous Australians and raising standards to levels enjoyed and expected by all of us.

The essence of that is that we are all Australians and we all have every entitlement to enjoy equal standards, equal opportunities and equal prosperity. These should not be limited to any section of the Australian community.

Of course, we all know that Indigenous Australians in the past have suffered greatly. No-one should try to deny that. No-one should try to walk away from that fact. But as a modern, sophisticated, 21st century nation it is time that we look forward and have a vision to come together and to address the challenges and the difficulties that we have in this country. That is why this bill is important. It reconfirms that the Indigenous Australians of this country ought to be treated in the very same way as non-Indigenous Australians in our criminal justice system.

I know that the electorate of Ryan, which I represent here in the parliament, would have been very shocked to see the Lateline program of several months ago that alleged the abuse of children in the remote Mutitjulu community. These allegations came on top of claims earlier in the year that petrol sniffing and substance abuse was also rife within the Mutitjulu community. I think those allegations have again highlighted the need for reconciliation efforts to be a priority of any Australian government, and the Howard government does make this a very strong priority. People of goodwill in this parliament, people with a genuine desire to make a difference in our country, should try and work together on this issue, as we should on many other issues that we face.

According to the 2001 census, Australia’s Indigenous population was some 458,000. Of course, that was five years ago and no doubt that figure is well and truly past the half-million mark. I do not have the precise figure but it would be well and truly past that. The census of this year will reveal the most up-to-date figures when it is made public some time soon. That figure represents approximately 2.4 per cent of the overall population of Australia. However, Indigenous people make up 24 per cent of Australians living in areas classified as either remote or very remote. More than half of all Indigenous people live in New South Wales or my home state of Queensland—the greatest state in the Commonwealth, of course! In 2001 Queensland was home to just under 126,000 Indigenous Australians. The Indigenous population in our country is growing faster than the non-Indigenous population. Non-Indigenous growth is some 1.8 per cent compared to Indigenous growth of two per cent.

We, as the duly elected government of this country, have an obligation to pass laws in this parliament that seek to make a difference in the Australian electorate. Indigenous affairs is a very important area, and at the moment that portfolio is under the stewardship of Minister Mal Brough, who is doing an outstanding job. We are trying to get away from the ideologically driven policies of previous Labor governments which focused more on rights than responsibilities and more on division than unity. Labor clearly neglected to make any practical advance in the areas of Indigenous health and education and tried to promote more of a handout than a hand-up mindset. In my home state of Queensland, Noel Pearson is a highly respected voice on Indigenous affairs, and I might say I had the pleasure of going to the same school as him in Brisbane—St Peter’s Lutheran College, in the suburb of Indooroopilly. He has become one of this country’s significant spokesmen on Indigenous affairs, bringing a clear intellect and voice to this important area of policy.

The federal Labor government of past years had an ideological focus, whereas this government is trying to focus on making a real and meaningful impact on health, education and related issues such as safety and security for Indigenous women, particularly young women who are very much at risk from criminal behaviour by Indigenous men in their communities. Clearly, this bill is all about what the government is doing to address that. I want to quote Senator Chris Evans of the Labor Party because he made a very interesting speech in which he gave an instructive acknowledgement of Labor’s dismal failure to address this issue. He acknowledges himself that this ideological commitment is the wrong approach. He said:

Labor’s ideological commitment to the rights agenda, self-determination and reconciliation was not matched by a successful attack on the fundamental causes of Indigenous disadvantage. We put too much faith in the capacity of the rights agenda to contribute to overcoming entrenched Indigenous disadvantage.

He goes on in the speech to make remarks about trying to address Indigenous wellbeing under a future Labor government. Of course, this government’s record stands proudly because it is making a difference. In April 2004 it became clear that the ATSIC experiment, which was introduced by the Labor Party, had failed to respond to the crisis in confidence in this supposedly peak and supposedly representative Indigenous body. The government responded swiftly and decisively, announcing sweeping reforms that included the abolition of the ATSIC organisation.

In terms of the budget that the Commonwealth allocates to this very critical area of national policy, real spending on Indigenous-specific programs has increased by almost 50 per cent over the last decade from the levels when the Howard government was first elected in 1996. The 2006-07 budget provides the biggest investment in Indigenous affairs. More than $3.3 billion of Australian taxpayers’ money is allocated by the Howard government to areas of health, education, housing and security for our Indigenous Australians. All taxpayers in this country would expect that that money is allocated and invested appropriately and that it does produce outcomes that improve the lives of our Indigenous Australians. This $3.3 billion includes almost $500 million in additional spending to support 24 new Indigenous projects spanning six portfolios. I commend that.

The background to this bill is about leadership from the government over the issue of extensive reports and allegations of violence in Aboriginal communities. With this bill the government is taking the lead to implement the outcomes of the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities, held in June 2006, which were later confirmed by COAG at its July 2006 meeting. The summit was concerned about the examples of customary law being used to mitigate the punishments for criminal offences, resulting in the guilty parties getting significantly lighter sentences than would otherwise be condoned by the law. In particular, there were concerns over the lack of testing of what defendants claimed to be customary law. This is a totally untenable situation where we have two sets of laws in this country: the common law and the statute law of this country, on the one hand, versus customary law that is applied to Indigenous Australians. I know the overwhelming majority of the Ryan electorate would not accept that as being in the best interests of a united Australian nation.

A woman who, for example, is the subject of sexual abuse in an Aboriginal community is entitled to the same justice as a victim who lives in any other part of Australia, in any other suburb of the cities of this country. They should not be treated differently. They are entitled to see the guilty party appropriately punished and not given a lesser, and in some cases much lesser, sentence simply because that person claims the act was condoned by customary law. There is the example of the 55-year-old man who was initially only jailed for one month for anally raping a 14-year-old girl. The judge in that case accepted that, under tribal law, the victim was his promised bride. In 21st century Australia, to me as an individual in this country, separate from my Ryan electorate representative duties here, that is absolutely untenable. Someone who rapes a 14-year-old girl being jailed for one month is just beyond the pale. This government must ensure that those sorts of examples do not become part of an Indigenous legal culture, if I can put it that way.

In another example, a 29-year-old Aboriginal man choked his pregnant wife to death before burning her and their unborn child on a bonfire. In that case, his conviction would have dictated a sentence of ‘strict security life imprisonment’ with a minimum term of between 20 and 30 years of imprisonment. The man in this particular case, however, had already been subject to traditional punishment by his tribe, which the judge took into account, instead imposing a life sentence with parole after only 19 years. So it was 19 years versus, potentially, 30 years of imprisonment simply because his tribe had, in their view, in their wisdom and in their culture, dealt out traditional punishment. In this country all of us are subject to the same laws of the Commonwealth and the states. I want to assure my electorate of Ryan that under the Howard government the Australian judicial system, the Australian laws of this land, will not condone such serious offences as sexual violence and abuse in order to allow guilty parties to escape appropriate punishment.

While it is important to take into account a person’s background during sentencing, the cultural background of a person should not be held up as something of particular and special consideration in the sentencing process. Moreover, it should certainly never be used to sideline the rights of the victims and avoid full and proper punishment for any offence. It is interesting to note that COAG, in its joint communique presented at the July meeting of COAG, reflects this view. What COAG stated is very instructive to all of us:

The law’s response to family and community violence and sexual abuse must reflect the seriousness of such crimes. COAG agreed that no customary law or cultural practice excuses, justifies, authorises, requires or lessens the seriousness of violence or sexual abuse. All jurisdictions agree that their laws will reflect this, if necessary by future amendment.

I take the opportunity in parliament to commend the Northern Territory government because I understand that they have been very much on the front foot to pass legislation that reflects the COAG statement. The Deputy Chief Minister, Mr Sid Stirling, has said publicly that the laws of the Northern Territory do reflect what COAG agreed to. He said:

In the Northern Territory we’ve change the rules on customary law—you can’t use it as a defence and in sentencing it’s controlled, tested and limited.

On the other hand, I want to highlight the absurd position of the Western Australian Minister for Indigenous Affairs, Sheila McHale, who strongly supports tribal law and told the summit in Canberra that Western Australia did not support the elimination of Indigenous tribal law. That was rebuked by magistrate Sue Gordon, the chairwoman of the National Indigenous Council, who very commendably hit out at plans to give Western Australian judges and magistrates great discretion to consider Aboriginal tribal law when dealing with criminal cases. I commend her in the national parliament for her position.

Regrettably, time is getting away from me, as it always does when I am speaking on a very important bill in the interests of this country’s future. The Australian government wishes to ensure that all Australians are treated equally under Australian law and that victims receive the justice to which they are entitled. The bill therefore amends the sentencing and bail provisions in the Crimes Act 1914 to require a court to consider the potential impact on victims and witnesses, and specifically the potential impact on victims and witnesses in remote communities, when granting and imposing bail conditions for Commonwealth offences. Most significantly, the bill deletes the reference to ‘cultural background’ in section 16A of the Crimes Act for all Commonwealth offences and ensures that no customary law or cultural practice excuses, justifies, authorises, requires, or lessens the seriousness of any criminal behaviour with which that act is concerned.

Essentially, the bill confirms that no customary law or cultural practice excuses criminal behaviour, including unlawful violence or sexual abuse. Of course, a lot of sheer nonsense has come from the opposition. I hope that the Labor speaker who will follow me, a highly respected member of this parliament and a senior counsel, will not follow the remarks of the speaker before me, who talked about this bill as simply being about getting headlines and about mere political opportunism. I very much hope that he does not follow that course of conduct because that allegation is quite an affront to those on this side of the House—that we would pass this piece of very significant legislation taking away cultural background as an aspect of a Commonwealth act simply for headlines. That is an affront to me personally, and an affront to this government. I hope that the quality of his presentation exceeds—and I am sure it will—that of the speaker before me in the debate on this bill.

In conclusion, I end my remarks by supporting this bill very strongly and by quoting the opposition leader and shadow Attorney-General of the Northern Territory, who made a very significant point. He said:

The women and children who are brutalised every day in Central Australia are, apparently, meant to take great comfort from the knowledge that their violent, and usually drunk, attackers have some passing acquaintance with, and at best tenuous involvement in, some cultural practices.

Of course, they are not. This bill ensures for victims that terrible and brutal crimes committed by Indigenous men cannot be hidden under the charade of customary law when it comes to them facing legal sanction for their behaviour. (Time expired)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in reply—Firstly, I thank the members who contributed to this debate on the Crimes Amendment (Bail and Sentencing) Bill 2006. When I spoke earlier in the day, I tabled an explanatory memorandum. I am informed that I should in fact table a revised explanatory memorandum which has some additions relating to the Senate’s consideration of this measure.

This bill, and the additional amendments I have foreshadowed that I will move in the consideration in detail stage, is consistent with the intent of the Council of Australian Governments agreement following the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities. Criminal behaviour cannot in any way be excused, justified or authorised, required or rendered less serious because of customary law or cultural practice—that is the question of principle—nor has it ever been intended that a customary law or cultural practice aggravate the seriousness of a criminal behaviour. This bill forms one element in our approach to addressing these difficult issues. I would not suggest, as did the member who just spoke, that the bill contains all of the answers. It was never intended that it would, but it is part of a total mosaic.

At the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities we called upon all Australian jurisdictions to take action against the perpetrators of violence and abuse, and we will continue to work with the states to improve Australia’s justice system and to encourage them to make similar changes to their sentencing and bail provisions. By amending the bail and sentencing provisions of the Crimes Act, the Commonwealth is demonstrating leadership in the area of law and order, and it will continue to improve the criminal justice system for all Australians, in this case especially for Indigenous Australians who are victims of violence or sexual abuse.

This measure will not, and nobody has ever argued that it will, deal with the substantive issues that are crimes at a state or territory level. Those matters have to be dealt with in those jurisdictions at those levels. But I can imagine what would have been said if we had not moved to deal with these issues. We would have been accused of hypocrisy for leaving measures in Commonwealth legislation that we were asking the states and territories to remove. Even though I do not imagine that the Commonwealth offences in the Crimes Act would apply with any frequency to Indigenous people, you cannot have, in my view, model arrangements which you ask the states to implement being ignored by the Commonwealth.

As I mentioned, this bill is about leadership. We are about encouraging the states and territories to follow suit and to fulfil their commitment arising from COAG. We are putting the issue of whether customary law and cultural background can be used as an excuse or justification for criminal behaviour beyond doubt. At the summit, the government committed to a range of practical measures intended to address the serious issues of violence and abuse in Indigenous communities. This bill complements those practical measures. I notice that the member for Denison, who has just joined us, seemed to be critical of the outcome of the summit.

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

Very.

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

That is very interesting because he is demonstrating a willingness to be critical of his state Labor Party colleagues on some issues. I just wish he would be as vocal on a number of other issues. I would hope he would be different from his leader, who seems to see a lot of the conduct at the state and territory level as mere peccadilloes. In my view they were substantial issues—in fact, in some cases requiring the resignation of ministers and, in my view, requiring the resignation of other ministers.

It has been argued that this bill is premature because it is still under consideration by SCAG and COAG. Let me put beyond doubt that COAG did decide to improve the effectiveness of the bail provisions. It asked the standing committee to provide a report. We are taking action to implement the COAG decision through the proposed legislative amendments, and we will be reporting on these actions back to COAG through the SCAG process. The government is also undertaking bilateral negotiations with state and territory governments in relation to the outcomes, and in these discussions the state and territory governments are being encouraged to follow our lead and to make similar amendments. We do not see any need to wait. We think these issues are particularly important.

It has been suggested that this bill interferes with innovations in sentencing Indigenous offenders, including circle sentencing, and that it is discriminatory in that sense. This bill does not limit any sentencing options available to a court. The government supports alternative sentencing and restorative justice processes. However, it does not support offenders receiving a lesser penalty by reason of a belief in customary law or cultural practices. Accordingly, any sentencing processes must ensure that all Australians are treated equally. Circle sentencing is about the process of setting up an appropriate sentence; it is not about ensuring that cultural background can be used to reduce the seriousness of the criminal conduct. The advice that the government has on that matter in terms of the Racial Discrimination Act is that the bill is consistent with it.

It has been suggested that this bill runs counter to the Royal Commission into Aboriginal Deaths in Custody. The recommendations of the royal commission were extensive. There were 339 in all and they covered a broad range of issues. The government is taking a balanced approach in relation to the needs of victims and communities. The royal commission recommendations most relevant to the bill include recommendations 89, 90, 91 and 242, which relate to bail. The proposed legislative amendments will not directly affect any of the actions taken to respond to recommendations 89, 90, 91 or 242. There was no suggestion in the royal commission report that Aboriginal offenders should receive more lenient sentences due to their cultural background. In fact, the government is delivering on a range of programs and services to Indigenous Australians to address Indigenous disadvantage.

It has been suggested by Senator Ludwig that we have not moved in relation to his private member’s bill on victim impact statements. Let me just say that victim impact statements will be considered in the context of our response to the Australian Law Reform Commission report on sentencing. We think this bill responds to a very real issue in relation to violence, particularly violence against women and children in Indigenous communities, where we need to put beyond doubt that there is any particular cultural practice either real or imagined that justifies conduct of that sort. I am surprised that so many people would be on the record as wanting to oppose measures to achieve this outcome.

Question agreed to.

Bill read a second time.