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

We are really now in an absurd position. The amendments that were made in 1994 inserted ‘cultural background’ into sections 16A and also 19B of the act, which deals with the discharge of offenders without proceeding to conviction. It says that, if a discharge for a federal offence is proved, a court may—there is the discretion—nevertheless dismiss the charge or charge the offence on conditions without recording a conviction if it is considered that it is expedient to do so having regard to the matters listed in the section. As with section 16A, the Australian Law Reform Commission report 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.

What we have now heard from the government exposes that they were ill-prepared, that it was ill-conceived and that they did not properly look at all of the matters in terms of how to deal with this issue. They took the Mal Brough approach of just jumping in with their gumboots on. They made a statement that they would remove ‘cultural background’ from section 16A without doing their research, quite frankly—without having a look at section 19B or going back and having a look at the argument when it was first introduced. I am happy to be corrected.

We now have the government ramming through a bill which takes this absurd position. If a person is charged with a federal offence and it is proved, a court can then dismiss it—in other words, there is a discretion there—on conditions without recording a conviction if it considers it expedient to do so, having regard to cultural background as a matter that it can take into account. That was introduced in 1994. But if the court says, ‘We don’t think that we should exercise that discretion; we should proceed’—in other words, if they say: ‘We don’t need section 19B. We will not dismiss the charge or discharge the offender on conditions; we will proceed to the next step of convicting, imposing a sentence and then reconvening for a sentencing hearing’—then under section 16A it is not a matter that is listed to be taken into account.

The government were purporting to tackle the relatively high level of violence and abuse in Indigenous communities. I said that the legislation will not achieve anything of the sort. It has now been highlighted that, with these two provisions, they have missed the point of the whole exercise. They have now split it. They are going to say it is okay to take cultural background into account if you wish to dismiss a charge and record no conviction but it is not okay if the magistrate or the judge decides to proceed to conviction and sentencing. The position the government are now advocating is absurd and quite surprising. The bill is flawed, and I think they should have removed it right from the word go, which was my clear suggestion. They should then have sent it off and waited for SCAG and for COAG to come back, instead of trying to rush ahead like they have. It seems they have made a fatal error in how this scheme is going to work.

The silence of the government is deafening. There is one other matter that has concerned me during this debate. I will call it for what it is, because I am perhaps a little agitated about it. It was a matter that got raised in the Northern Territory Police News. I have spoken to a range of state police whilst serving in the Senate and being the representative for Labor in the shadow justice and customs portfolio. I did not see the original interview but I do read the police journal, and it had this interview reproduced in full. I might have missed it otherwise, so I appreciate the opportunity that they granted me. It was an interview between the Hon. Mal Brough and John Laws. This is the disturbing part, and it is a question of whether or not the government agrees with this position that Mr Brough is putting:

Secondly, the rule of law needs to apply equally and therefore police need to be stationed and empowered and not turn a blind eye if something—a crime is committed from one black person to another.

He went on to say:

The problem you’ve got in a place like Alice Springs, it’s so large and it’s such a—it’s not isolated, of course, because it’s such a huge tourism hub. And so you can’t just say, well, make this a dry community, but you can do a hell of a lot more than is currently being done, and I think it needs to be done urgently.

And I can’t see why—look, it is a law today in Alice Springs, that you can’t sleep in public places in the creeks and the rivers where there has been something like 16 murders over the last couple of years, yet why aren’t those laws policed?

John Laws responds:

Well, nobody—they’re not.

Mr Brough’s response was:

There is no willingness to police them.

I am really concerned when people in responsible positions, such as Mr Brough, say—I would have said ‘seem to suggest’, but it seems to me that he actually says—that the Northern Territory Police are not doing their job. I believe the Northern Territory Police are doing their job and they do it very well in difficult circumstances. When you have a federal minister making those unsubstantiated comments about policing in the Northern Territory, it does concern me. I think it is a matter that is serious enough to put on the record during this debate and serious enough that it should be responded to by the government as to whether or not they agree with Mr Brough’s comments.