Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

by leave—I move:

(1)    Schedule 1, item 3, page 3 (lines 24 to 28), omit paragraph 15AB(1)(b), substitute:

             (b)    must not take into consideration any form of customary law or cultural practice as a reason for:

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

                  (ii)    aggravating the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.

(2)   Schedule 1, item 5, page 4 (lines 20 to 23), omit subsection 16A(2A), substitute:

     (2A)    However, the court must not take into account under subsection (1) or (2) 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.

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

                  (ii)    aggravating the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.

Of course, we have had some debate in relation to these amendments. As I said earlier, the government amendments address the concern of the Senate committee about the need to clarify the scope of the changes to the Crimes Act. I mentioned why we think the wording is preferable—because of the scope for ambiguity—and I believe that the wording of the two amendments will address the intent of the Senate committee.

I return to Senator Ludwig’s question, which deals with section 19B of the Crimes Act. The Senate Standing Committee on Legal and Constitutional Affairs did not make a reference to this, on my reading of the report. It did not reveal that this was a matter addressed by the Senate committee. The wording in relation to section 19B is somewhat different in relation to proposed section 15AB and section 16A, as we are amending them. In fact, in our amendment that deals with proposed section 15AB, we are dealing with the provision 15AB(1)(b): the court ‘must not take into consideration any form of customary law or cultural practice as a reason’ for excusing certain behaviours.

Section 16A is similar in its expression. It contains a list of provisions which deal with sentencing under the heading ‘Matters to which court to have regard when passing sentence’. Again, that is a discretionary matter. Section 19B is couched more in terms of a court being satisfied in respect of certain matters. What I am saying is that the wording of proposed section 15AB and section 16A is couched in terms of general discretion. Section 19B talks about the court being satisfied. That is a different scenario. Section 19B sets out an exhaustive list of things a court can take into account. It is a different approach entirely from those of proposed section 15AB and section 16A.

Senator Ludwig is saying we should take ‘cultural background’ out of section 19B to be consistent with—