Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

Labor will not be supporting the Democrat attempt to oppose this part of the legislation. This is a difficult issue. The parliament wants to respect Aboriginal culture and traditional law and recognises that sometimes that culture and law comes into conflict with European law. It is a challenge for us to get the balance right and to deal with that clashing of the two cultures. This has come to a head in the current debate, in which there has been serious concern about Aboriginal law defences in bail or sentencing hearings for crimes involving violence and child abuse.

The first thing to say is that most Indigenous people are very quick to tell me that there is nothing in Aboriginal culture that condones violence against women or child abuse. We need to be very clear about that: Aboriginal people do not condone violence against women or child abuse, and they do not claim that that is a cultural practice. That is the first thing to say in this debate. In terms of working out how one allows Indigenous culture and law to continue to have some value and recognition within the broader European law, there has been a lot of work done over recent years by various law reform commissions and attorneys-general. A lot of work was done by a colleague of mine in Western Australia, Mr Jim McGinty, the Attorney-General, on serious attempts to try and better integrate the two sets of laws.

We need to work to ensure that we do something about the terrible incarceration rates that exist in this country. We are talking about one national shame at the moment, which is the prevalence of child abuse and violence in some of these communities. One of the other great national shames is the rate at which we incarcerate Aboriginal people in this country. It used to be just Aboriginal men, but now we are getting pretty good at incarcerating Aboriginal women as well. The figures, which I do not have to hand, are staggering. Our failure to respond to that is a severe criticism of Australian society. There have been attempts to try and deal with some of those issues, and part of those attempts has been to try and look at law reform to ensure that we take account of Indigenous culture and law so that Indigenous people are not banging up against the European legal system as much, are not coming before the courts as often and are not being incarcerated as often. Those efforts have been quite helpful, and some progress has been made.

Following the concerns about the child abuse and violence in some Indigenous communities coming to a head, there has been a lot of focus on the attempt that seems to have developed in some jurisdictions to use argument about cultural practice and traditional law to somehow excuse what are abhorrent crimes or to seek to reduce sentencing or access to bail. As I said, every Indigenous person I have spoken to about the issue starts from the premise that there is no defence under Aboriginal cultural law for violence against women or children or for sexual abuse of children.

Trying to deal with these conflicting priorities is a difficult issue. The Labor Party is prepared to support the government’s changes in this bill because there is a problem that needs to be addressed but also because on this occasion the government has gone about it the right way. It has consulted with state attorneys-general and has gone through the forum of COAG to look at a national response. It did not just decide that, because the Commonwealth minister woke up one morning and wanted to take some action, he could unilaterally do it. On this occasion the state governments, who are responsible for those legal systems and the running of the courts that deal with these issues on a day-to-day basis, came together under COAG and at the July 2006 meeting made a decision. That decision in part reads that they agreed:

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.

So we have a joint agreed approach for dealing with the growing seriousness and occurrence of violence and child abuse in these communities. Those responsible for administering the laws, the state governments, see that this sort of response is required. A number of them are keen to point out that this does not prevent them continuing to pursue measures that give, for instance, Indigenous law and justice committees and elders the ability to develop their own systems of authority. But it will stop the courts from being able to consider these outside actions as a mitigating or aggravating factor in sentencing.

Given the leadership shown at the COAG meeting and the agreement of all the states in moving down this path, it is not unreasonable for parliament to give effect to that. At the same time, I am mindful of ensuring that we as far as possible provide respect and support for the practice of Indigenous culture and traditional law. That is why I was very disappointed that the earlier amendments about ensuring access to land in the face of the land tenure changes was not supported by the government. Labor will be supporting the bill as it stands and will not be supporting the Democrat attempt to strike out those clauses.