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

by leave—I table a supplementary explanatory memorandum in relation to amendments (1) to (5) and I move:

(1)    Schedule 1, page 5 (after line 4), after item 5, insert:

5A  Subparagraph 19B(1)(b)(i)

Omit “cultural background,”.

5B  After subsection 19B(1)

Insert:

     (1A)    However, the court must not take into account under subsection (1) any form of customary law or cultural practice as a reason for:

             (a)    excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or

             (b)    aggravating the seriousness of the criminal behaviour to which the offence relates.

      (1B)    In subsection (1A):

criminal behaviour includes:

             (a)    any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and

             (b)    any fault element relating to such a physical element.

(2)    Schedule 1, page 5, after proposed item 5B, insert:

5C  Paragraph 23WI(3)(c)

Omit “age, physical and mental health, cultural background and (where appropriate) religious beliefs”, substitute “age, physical health and mental health”.

5D  Paragraph 23WI(3)(d)

Repeal the paragraph.

5E  At the end of section 23WI

Add:

        (4)    Without limiting the matters that the constable may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the constable must (where appropriate) take into account the religious beliefs of the suspect.

(3)    Schedule 1, page 5, after proposed item 5E, insert:

5F  Paragraph 23WO(3)(c)

Omit “age, physical and mental health, cultural background and (where appropriate) religious beliefs”, substitute “age, physical health and mental health”.

5G  Paragraph 23WO(3)(d)

Repeal the paragraph.

5H  At the end of section 23WO

Add:

        (4)    Without limiting the matters that the senior constable may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the senior constable must (where appropriate) take into account the religious beliefs of the suspect.

(4)    Schedule 1, page 5, after proposed item 5H, insert:

5J  Paragraph 23WT(3)(c)

Omit “age, physical and mental health, cultural background and (where appropriate) religious beliefs”, substitute “age, physical health and mental health”.

5K  Paragraph 23WT(3)(d)

Repeal the paragraph.

5L  At the end of section 23WT

Add:

        (4)    Without limiting the matters that the magistrate may take into account in considering, for the purposes of paragraph (3)(f), the intrusiveness of the forensic procedure, the magistrate must (where appropriate) take into account the religious beliefs of the suspect.

(5)    Schedule 1, item 6, page 5 (line 9), omit “items 4 and 5”, substitute “items 4 to 5L”.

criminal behaviour includes:

In relation to these amendments, which I spoke to in the second reading debate, the question was raised during the debate on the bill in the Senate as to why section 16A and not 19B of the Crimes Act was being amended. Also, the sentencing part of the Crimes Act was not being amended. The government considered the position and agreed that it was not consistent to amend one and not the other. Both sections deal with sentencing of Commonwealth offenders. In our view, it is not appropriate in either case that there be a specific reference to cultural background, and the proposed amendments will make changes to section 19B to parallel those already made to 16A.

In relation to the measures dealing with forensic procedure provisions, in our view the cultural background of a suspect should not be a factor used to determine whether or not they provide a forensic sample. It is not acceptable that there be a possibility, even a remote one, that a person from one ethnic group may avoid undergoing a procedure which provides evidence which may lead to their prosecution or conviction in circumstances where a person from another group would have no choice but to undergo testing.

There are issues in relation to religious beliefs which we are leaving intact. There is a difference between a person’s cultural background and their deeply held personal beliefs. It is clearly appropriate to take the latter into account in deciding how that person should be dealt with under law enforcement processes. That might apply to Indigenous people in the same way as it would to others. It needs to be borne in mind that there will be a range of options available for collecting DNA samples. If a person has a deeply held religious belief and that should be a factor in deciding which of those options were used, then the provisions will be amended to ensure that religious belief is only relevant to deciding what type of testing is to be carried out, not whether there should be testing in the first place. For instance, some people for religious reasons do not believe that a sample of blood should be taken. A DNA sample might be able to taken in a less intrusive way and still achieve the same outcome. We think that draws the appropriate balance between protecting deeply held beliefs while still enforcing the criminal law in a fair way.

Why are we taking out Aboriginal customary beliefs? In our view, there is no need to keep the current references to Aboriginal customary beliefs in DNA testing. We have clear advice that the term ‘religious beliefs’ is wide enough to encompass deeply held personal beliefs of a kind that should not be taken into account under the provisions. Whatever specific religion those are based on, the term is wide enough to pick up beliefs based on Aboriginal religion as well as any other religion. The change will make the point that all that is relevant under those provisions is a deeply held personal belief, and that will avoid any argument as in the case of Aboriginal suspects that there are other matters that should be taken into account. Removing the reference to Aboriginal customary or cultural beliefs will avoid any potential ambiguity.

In summary, the amendments will make certain that a court cannot take into account any form of customary law or cultural practice as a reason for lessening or aggravating the seriousness of the criminal behaviour that a court is considering and that customary law and cultural practice cannot be used as a basis for avoiding DNA testing. I commend the amendments to the House.

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

Labor oppose these amendments, and I would like to record our opposition. We will be voting against the Crimes Amendment (Bail and Sentencing) Bill 2006 in its entirety and we oppose the specific amendments. We understand why the government is moving the first amendment; it is doing this on the basis that it is better to have a bad, consistent law than a bad, inconsistent law. But, make no mistake about it, this amendment does not actually improve the law in any way. We are opposed to the removal of the reference to cultural background in bail and sentencing procedures, as I have already indicated, as has been indicated in the Senate and as has been indicated by many other speakers.

Amendment (1) is an amendment to the procedure—in this case, when it is a discharge after conviction—and of course we also oppose this amendment. The reason that the question was raised at all in the Senate was simply to point out in the debate that the true motive for this bill was merely for it to be a diversion from the failures of the Minister for Families, Community Services and Indigenous Affairs and the exposure of just how sloppy the government’s work had been in preparing and drafting this legislation: one rule for one provision and one rule for another. If the government did actually believe that this bill was about improving the law, then it would have been thorough, much more professional and much more consistent in its drafting, and it would have supplied a written explanatory memorandum that meticulously laid the case for change. I am not sure that the newly tabled explanatory memorandum does that.

The government is legislating on the run with these amendments. The Attorney-General has the audacity to mention that the Standing Committee of Attorneys-General is currently reviewing these provisions, but still the Commonwealth wants to act first. The government tries to pretend that it is an act of leadership rather than idiocy to act before any proper consideration of whether or not this will deliver what the government pretends it will. The government even calls it ‘an act of leadership’ because it would be unfair to ask the states to do this if the government were not doing it. It certainly would be unfair: it would be unfair when, despite the spin that the Attorney-General wants to put on the agreement from COAG, all the states have rejected this bill. All the states have indicated that they will not make changes that are consistent with this bill. So this leadership will actually leave the Commonwealth out there on its own, having legislated in a way that really will have very little impact on any Commonwealth criminal activity which is likely to be undertaken. Nevertheless, it wants to use this as an example when it will have no impact on the much more important issue of Indigenous violence and violence in Indigenous communities.

Amendments (2), (3) and (4) all deal with forensic procedures and are completely unrelated to the rest of the bill. It seems to me that the government obviously was a little put out by the questions that were raised—perhaps those raised by my colleague Senator Ludwig in the other place—about not being consistent. The government seems to have done a Google search for every time customary law has appeared and has now said that it is going to remove any reference, even in procedures which have nothing to do with bail and sentencing and nothing to do with what the rest of the bill is dealing with, and without any consideration of whether or not it is appropriate to make this removal.

It seems to me also quite extraordinary that we can be here at the last minute debating changes that deal with a different section of the act—entirely different procedures such as collecting DNA and other things—having gone through a Senate committee process that did not deal with these provisions at all because they were not even proposed at that time. They have not been talked about within the community and they certainly do not have the cover of any agreement with COAG or SCAG, no matter how far the Attorney wants to stretch it. It seems bizarre to me that the government moves these amendments in such an ill-considered way.

It is also quite extraordinary that a number of the speakers on the other side of the House were trying to make some point about the other provisions being introduced by the Keating government. However, they were supported by the previous Attorney-General, Daryl Williams, when he was in this place, and of course the current Minister for Justice and Customs, who has now had a change of heart on this issue. These provisions—the ones that are being amended by amendments (2) to (4)—were actually introduced by this government when it was amending the procedures in 1997. You have speakers on the other side of the House saying, ‘We have to amend these things because of these terrible things that people did under the Keating government,’ and now we have to amend them because of the terrible things that have been done under your government. It is all a complete mess and completely inconsistent. I do not think that there is any argument that is very persuasive for the need to do this. (Extension of time granted)

I think it is extraordinary that the previous Attorney-General was prepared to boast at the time of introducing these other provisions relating to forensics, and the model Crimes Amendment (Forensic Procedures) Bill 2000 was widely circulated for comment to about 600 groups and individuals representing many interests. The long list of those consulted included defence lawyers, law societies, civil liberties groups and legal aid organisations. We can contrast that with the current bill: the Senate committee condemned the government for its failure to properly consult in relation to the changes being considered, and these changes we are dealing with now were not even a twinkle in anybody’s eye at that time. What a stark example of how arrogant the government has become after its 10 years in power. The government has completely changed its tune when it comes to involving the wider community in the legislative process. The Prime Minister said he would not let control of the Senate go to his head, but it is quite clear that it has gone to the head of many of his ministers.

When the forensic procedures were originally introduced, Mr Williams spoke in this House of the many safeguards in the bills that would protect the rights of individuals, with particular provisions for Aboriginal persons and Torres Strait Islanders. There you have it: the first Attorney-General of the first Howard government promoting specific safeguards for Aboriginal people and Torres Strait Islanders. Here, now, you have the Attorney-General of the last Howard government removing those same safeguards. How the standards seem to have declined since Attorney-General Williams left this place!

It is contemptuous of good process, it is contemptuous of the stakeholders and it is contemptuous of what the Senate recommended. I have to say that I also think it is contemptuous of the general liberal beliefs that we now see so rarely in this place. It is certainly contemptuous of the Australian people. Surely there is a better way for us to make laws, and we should do this in a more considered manner.

I am also interested in the brief that was provided to us about the latest amendments that the government has just introduced in this place—that is, the government is convinced that it is okay to remove a reference to customary beliefs because, and I am quoting from the government’s brief to the government members committee that was provided to us, that ‘the term religious beliefs encompasses all deeply held personal beliefs’. I think that would be an extraordinary revelation to many of our religious leaders, to think that any strongly held personal view that someone has will be considered a religious view, and I think it is certainly an affront to many people who do not regard themselves as religious who have many strongly held personal views.

It is an extremely contentious thing to say that customary beliefs or any other beliefs that people might hold can be caught up in religious beliefs. Maybe there will be another time or place to have a theological debate about whether that is right, but to me it is clear evidence of quite bad law-making for an assertion such as that to be made, for changes to our Crimes Act to be made on the basis of such an assertion, and for customary beliefs—which may well have nothing to do with whether someone has a belief in whether there is a god of any type in another place and may not be able to be referred to in any way as religious beliefs—to be automatically channelled into that reference. I think it is quite extraordinary. But this is not the time or the place to be able to convince the government of that sort of argument.

We strongly oppose this bill; we oppose the amendment. We do not think it makes the bill better, and in a number of instances we think it makes it significantly worse, particularly with the addition of changes to the forensic procedures part of the bill. This is an entirely separate part of the bill. It is completely separate to the bail and sentencing provisions, but obviously, if your staff or the department do a search, you are saying, ‘We want to be consistent, so we’ll just consistently make fools of ourselves and take these provisions out of the act.’ We cannot support it; we do not support it. We think the government has hit quite a low point in putting forward such a hastily drafted bill with such poor policy background for it. It will not help Indigenous members of the community; it will not help the broader community. It will just have to be fixed up when we win the next election.

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

I wish to make a couple of remarks in relation to the amendments to the Crimes Amendment (Bail and Sentencing) Bill 2006. First I want to respond to the comments of the Attorney. I have no shame whatsoever in sharing any blame that is due in relation to the proposals that are currently before the House. I oppose them regardless of whoever’s mouth they have been expressed by. But I am given assurances by the honourable member for Gellibrand that, contrary to my understanding and what I read in the parliamentary brief, in fact the COAG process did not endorse these particular measures, nor are any state governments going to follow them. So to the extent that I have perhaps inadvertently placed blame on my state Labor colleagues, I withdraw it. I thank the Attorney for giving me the opportunity to reflect on that matter and the member for Gellibrand for drawing my attention to that particular matter. But my criticism that any person who proposes a racist piece of legislation of this nature deserves condemnation, be they on the Labor side or on the government side, still stands.

Let me ask the Attorney to respond to these propositions and take the debate away from Australian Indigenous practices and cultural norms. An example I became very familiar with in Papua New Guinea—conduct which is entirely unlawful and often results in death and murder—is where people believe in sorcery. Under the customary arrangements and beliefs that exist in those particular communities, people breached the criminal law of Papua New Guinea. It has always been the case that the state of mind of the person influenced by their customary understandings of their obligations is something that is taken into account in relation to sentencing. It would be bizarre if it were not. You cannot sentence somebody who does not believe in sorcery on the same basis as somebody who does believe in sorcery. It is a conundrum beyond all understanding that this government can put forward such a proposition.

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

Mr Ruddock interjecting

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

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

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

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

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

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

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

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

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

I have one more question. It might be more convenient for the Attorney to deal with all of the issues at once. I should have said in our objection to the forensic procedures amendments that are being moved that I would ask in the response whether the Attorney would consider sending those provisions back to the Senate committee. He has, after all, said at other times that the work of the Senate committee has been helpful in being able to advise and improve the laws. We have not had the benefit of their wisdom on these provisions, although we have taken up their time in the others and the government has largely in this case ignored their recommendations. However, it does seem that, if we were going to take the opportunity to make these laws as good as we could, the Attorney might consider referring those provisions to the Senate committee. I do not believe that there is any desperate urgency in this bill being passed today, and I would ask in his response that he consider whether he would agree to that reference.

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

I had a very interesting discussion some years ago with a South Australian Labor member of parliament—her name was Anne Levy; she is probably known to members opposite—about the issue of cultural practices and particularly women’s issues and where the situation ought to lie when they are in conflict. The view was put very strongly to me that there are certain values in the society in regard to which, when cultural practices impact significantly, as they often do on women and children, women and children ought to be given some primacy. I am surprised, particularly in relation to the issue of female genital mutilation, which has far more horrific consequences than the comparable circumcision for males, that it would be seen as something that by reference to cultural practices ought to be treated in a different light however it occurred. I have great difficulty with that. One of the reasons that we want to press these issues is because we believe that, often in a culture that has been largely focused on what I might regard as patrilineal rights and entitlements, it has often meant that the issues that go to the safety of women and children have been neglected. That is one of the reasons we have wanted to provide some leadership in the way in which these issues are being dealt with.

I do not believe the issue in relation to DNA testing requires any further review. I have made a decision in relation to the way in which it should operate which merely differentiates the procedures that you might use to take into account religious beliefs. I simply say, as I did in my earlier comments in moving the amendments, that the legal advice I have is that strongly held beliefs of Indigenous people about the way in which they see themselves would be seen as religious beliefs, notwithstanding the fact that there is no reference to a god as we understand it. If you look at the characteristic of religion, some have multiple gods and some a unitary system. Buddha does not even claim to be a god, but Buddhism is nevertheless regarded as a religion. The advice to me is quite clear: Indigenous beliefs would be seen as religious beliefs for interpreting the measure, if this were claimed, in relation to DNA.

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

I thank the Attorney for his response. I wish to exercise an abundance of caution and ensure that there be no misunderstanding about the position that I have expressed in relation to female genital mutilation. No-one in this House condones it; nobody regards its carrying out on a woman or a child to be acceptable; and everybody in this House has played their part in the passage of those laws. In fact, I recall speaking on that legislation when it was passed. This House has taken a number of stands where it has deliberately intruded into areas where we have complex and overlapping practices of traditional culture and we have said that some are no longer permissible under our law.

But the Attorney appears to miss the fundamental thrust of the point I raise, because I have asked for him to consider and respond to this proposition: is there a difference in his mind between a mother, coming recently to Australia from the Horn of Africa, perhaps as a displaced person or refugee, who, believing that it is in the interests of her child, carries out such a procedure—and remember most people who carry out these procedures are women—and a person who, without any such cultural understanding, as an act of cruelty seizes a child and inflicts such a horrible and mutilating wound upon them? I cannot believe that the Attorney says that each must be punished alike. If the Attorney holds such a view, I regard him as not having a moral base.

Question agreed to.

Bob McMullan (Fraser, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the bill, as amended, be agreed to.

Question put.