Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Hansard source

Perhaps the senator does not understand. I should just add some explanation, particularly with regard to his initial comments that this was just about Indigenous people: that is not the case. This provision is intended not only for prescribed communities; it is intended to extend across the entire Northern Territory community, consistent with changes made to the Commonwealth Crimes Act. There were some references yesterday—I hope that you are across it; in my mind I cannot go straight to the reference—to the fact that sometime last year we made some amendments to ensure that, in sentencing or applying bail conditions and determining the severity or otherwise of the circumstances, we could not take into consideration customary law.

I think it is important, initially, to outline exactly what the circumstances are with regard to the changes that this will make. This will apply right across the Northern Territory and, consistent with other aspects of this bill, when the Northern Territory takes it over—which, I understand they have undertaken to do through the COAG arrangements; that evidence was provided to me by Senator Evans last night—we will repeal this. I understand the same provisions are being provided around Australia. That is the general circumstance of the bill; it is not only about the particular aspects of the prescribed communities.

These amendments do not prevent customary law or cultural practice from being taken into account for bail and sentencing. That is not the case. When you are considering bail or sentencing matters customary law and cultural principles or practice can be taken into consideration, and will continue to be taken into consideration. The amendments ensure that in making an assessment about the seriousness of the offence the relevant authority cannot take into account customary law or cultural practice as a factor which aggravates or lessens the seriousness of the offence—for example, in exercising some sentencing discretion, the court could still take into consideration that an offender will be subject to tribal punishment or something of the like under customary law. In sentencing, a court could say, ‘Well, he has already suffered under customary law; we can take that into consideration by lessening that sentence.’ That may be the circumstance. That consideration can still continue and it is a very important aspect of the recognition of customary law.

A bail authority could perhaps also consider the fact that an offender lives in circumstances in a family or a community structure that operates under a customary law environment. They could take into consideration the particular circumstances of a very strong tie with customary law in a community or family when determining whether or not to grant bail or set bail conditions. So, again, these amendments do not prevent customary law or cultural practice from being taken into account in bail or sentencing decisions. An extreme situation that we are trying to avoid is a court taking into consideration the argument that in a person’s culture violence against women was not considered a serious offence. We would not be taking that aspect into consideration, because the cultural law diminishes the offence. So that is what we are attempting to create here. As I indicated earlier, I understand that all of the states and territories have agreed to amendments that are parallel to the amendments we made last year to the Commonwealth Crimes Act with regard to these matters.