Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

We divided on the second reading of the bill because Labor, as I said during the second reading debate, believes the Crimes Amendment (Bail and Sentencing) Bill 2006 is fundamentally flawed and should be rejected. Clearly, that is not going to be the case. We have now moved into the committee stage where the government is pressing ahead with a flawed bill. Senator Bartlett made the point that it is in his interests to try to improve the bill and it is in mine as well, given the circumstances which we now face.

The Senate committee report did make a number of recommendations to endeavour to improve the bill. Senator Bartlett’s amendments go some way to try to at least improve what is otherwise a fundamentally flawed bill. Labor provided a dissenting report to the committee report but we did say in the dissenting report that we agreed with the majority report’s consideration of the evidence presented because the evidence before the Senate committee was quite irrefutable.

I note that Senator Ellison has made a number of arguments against some matters that were raised, but if any person were to take a short walk through the Senate committee report, they would clearly come to the conclusion that, in terms of the main issues, there was a lack of consultation. This bill will have no effect on what it purports to do. It is a matter that should have rested with COAG to begin with. It is precipitous for this government to move now when COAG has sent officers to report on it and deal with it through SCAG. When you look at the overall picture, it is nothing short of a rushed attempt by this government to deal with, I guess, the Mal Broughism problem that the government now has, because there is no other way of really describing it.

If this government were truly serious about tackling the relatively high level of violence and abuse in Indigenous communities, they would not start here. They would have started at a range of other points within their own departments that deal with this, within community affairs and within the Indigenous affairs portfolios, in trying to effect change on the ground rather than seeking to amend legislation, which is in truth at the other end of the problem. If this government were serious about dealing with legislation then they could deal with it. Perhaps I could make that an open invitation to Senator Ellison. Senator Ellison could support a broader reference to the Senate Standing Committee on Legal and Constitutional Affairs for an inquiry into sentencing provisions more generally.

I note that there was a private member’s bill, which I proposed, dealing with victim impact statements which is a narrower cast area of sentencing. But, if there was a will, we could deal with a broader inquiry into sentencing more generally, taking into account what SCAG might say and what COAG might add in this area and that would be a way for the Senate to deal with the broader issue. I doubt very much whether Senator Ellison would agree to it because that is not his purpose here today. His purpose here today is not to effect a change in the way these issues are dealt with more broadly; his purpose here today, as I highlighted during my contribution to the second reading debate, is to put a fig leaf in front of Mr Brough. But as well I think he has then co-opted himself into the distraction that this has caused, because you cannot escape from his words. It is worth reminding the chamber what Senator Ellison’s words were in the 1994 debate. He said:

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.

Senator Ellison does have the opportunity to explain why he now resiles from the statements he made in dealing with the Crimes and Other Legislation Amendment Bill 1994, which brought these matters into the act in the first place. This is along with Mr Williams, who then became the Attorney-General under the Howard government, who said:

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.

That is what Mr Daryl Williams said then. What we now have is the government saying, ‘We’ll take it out.’ They do that in a surprising way. I will come to that shortly but this really does expose the hypocrisy of this government that, in a few short years, have gone from one extreme to the next. The justification for it has not been made out here today. The only justification has been the contrived one that they have put up, but it does not stack up when you look at the words they said in 1994.

What you also have is a case where the argument runs—I think Mr Williams dispels it—where the government say, ‘We have to be able to perhaps inform the judiciary.’ What they are doing is certainly sending the judiciary a clear message, but they are not actually leading in this field, and that is the disappointing part about it. If they wanted to lead, there are many ways that the Attorney-General of the day can lead.

But I digress. I will come back to a few other matters on the government’s amendments but, as I have indicated, I am prepared to support the Democrats amendments here. I think what I have said will give the government an opportunity to at least explain why they have done such a backflip, given that the circumstances under their leadership from 1996 have not changed. They have not done anything to actually assist Indigenous people in the community in rural and remote areas.