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

I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill. The memorandum was circulated in the chamber on 6 November 2006.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

by leave—I move:

(1)    Schedule 1, item 3, page 3 (lines 25 and 26), omit “excusing, justifying, authorising, requiring or rendering less serious”, substitute “mitigating or enhancing the seriousness of”.

(3)    Schedule 1, item 5, page 4 (lines 22 and 23), omit “excusing, justifying, authorising, requiring or rendering less serious”, substitute “mitigating or enhancing the seriousness of”.

These amendments go to roughly the same area and the same clauses as the government amendments. It would be fairly obvious to senators following the debate that they mirror recommendation 1 of the report of the Senate Standing Committee on Legal and Constitutional Affairs. I should say that, in moving these amendments, I do not resile from my previous comments that the legislation as a whole is unacceptable, but I think the least we can do is adopt the recommendations of the Senate committee report. I think the second recommendation is more important than the first, and I will speak to that one next. But these amendments go to and mirror recommendation 1.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to 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.

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

The government opposes the two amendments moved by the Australian Democrats. Amendments (1) and (3) are in broad agreement with the amendments of the government that we are yet to debate. Amendment (2) from the Democrats relates to the issue of cultural background, and we will oppose that for the reasons I mentioned earlier.

I will deal with amendments (1) and (3). The issue is that, whilst these amendments replicate the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs, the government believes, on the legal advice it has received, that there is some scope for ambiguity in the use of these words. The government has had advice from the Office of Parliamentary Counsel to this effect. Legal opinion suggested that there are two possible constructions of the phrase ‘mitigating or enhancing the seriousness of’, which were the words used by the Senate committee. In one view, the phrase prevents the court from taking into account customary law or cultural practice to mitigate the criminal behaviour or to enhance the seriousness of the criminal behaviour. In this sense, the mitigating aspect extends to any mitigating circumstances in relation to bail or sentencing. A different view is that the phrase only prevents the court from taking into account customary law or cultural practice to mitigate the seriousness of the alleged behaviour and to enhance the seriousness of the alleged behaviour. In this case, the mitigating aspects extend only to mitigating the seriousness of the behaviour. Given there is some scope for confusion with this wording, the first construction would broaden the current intent of the bill while the second would be likely to narrow its intent. As a result of this, the Office of Parliamentary Counsel have come up with the words that are used in the government’s amendment, which we believe implements the intent of the Senate committee’s recommendation, and I commend that amendment to the chamber.

In the summing up speech I gave earlier, I outlined the government’s position on cultural background. Senator Ludwig refers to a debate that took place 12 years ago when I was debating the issue and supported the inclusion of ‘cultural background’. Certainly, a lot has happened in the last 12 years and the examples this bill intends to address are some of those events which have occurred and are reasons for change. We saw recently that the summit on Indigenous violence brought out a great deal of community concern on that issue. As I mentioned earlier, and as was covered by the Law Reform Commission in Western Australia and by the other examples that I mentioned, the government believes that it is timely to introduce these amendments. Antecedents, as I have mentioned, are still contained in the Crimes Act and can be taken into account and relate to the person concerned. The government believe that, by maintaining cultural background in that list, undue emphasis could be placed on it and we want to give a clear direction to the courts as to how that section is to be interpreted and relied upon. I think it is up to the Commonwealth to display leadership. It is appropriate that we do it and that we do it in the context of the meeting of the Standing Committee of Attorneys-General in the next two days and also the COAG meeting yet to come, because we are setting a standard for others to follow. That is the position of the government.

Twelve years ago when ‘cultural background’ was included there was certainly Indigenous violence and the issues that we are grappling with today, but 12 years ago we did not have a national law enforcement body such as the Australian Crime Commission setting up in Alice Springs its headquarters for a national approach to fighting Indigenous violence across the country. Twelve years ago ATSIC had not been abolished. That was a huge change in Indigenous affairs. In the last 12 years, we have seen remarkable changes in how we deal with Indigenous affairs. Of course, we still have the issue of black deaths in custody and the Australian government continues to work at addressing that issue and the recommendations from the royal commission with state and territory governments. We continue to have an overrepresentation of Indigenous people in our jails and we still continue to address that.

The broad issues have remained, but the actions that have been taken have changed and we have seen that in the few stark examples that I have just given to the committee. We believe that simply saying, ‘Twelve years ago it was appropriate, and it should stay,’ is not the way to approach this. We have taken a fresh approach across the board to Indigenous affairs in this country. I could point to the trials of the Council of Australian Governments where it has said, ‘Let us as a nation have a whole-of-government approach to having trials in Indigenous communities.’ That was unprecedented. The abolition of ATSIC was another huge change that would have been unthinkable 12 years ago.

Again, the national law enforcement approach through the Australian Crime Commission to deal with Indigenous violence that I have just mentioned would have been incapable of being implemented 12 years ago. In fact I have been on record as applauding the state governments of Western Australia and South Australia and the government of the Northern Territory in combining to deal with Indigenous communities that straddle the borders of those states and the Northern Territory. Twelve years ago it would have been unthinkable to get that level of cooperation between three governments. I think they have addressed it in a very comprehensive fashion in relation to law enforcement, where you have had the South Australia Police working with the Western Australia Police and the Northern Territory Police to deal with those Indigenous peoples who live in an area which straddles those three jurisdictions. Twelve years ago we were still talking about the artificial lines that were drawn on the sand which delineated one state from another. Today, as never before, I believe we have a more whole-of-government approach in relation to Indigenous affairs. This is a positive step forward. What we are doing today with this proposed legislative amendment is providing that leadership for continuing progress.

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

I have a brief point to make and then I will allow the matter to continue. What concerns me most about the submission and the argument that has just been made by the government is that it is effectively an admission that violence and abuse in Indigenous communities has become worse under the Howard government. That is what you are saying if you are saying that circumstances have changed in the last 12 years. The only thing you could possibly point to is that, under the Howard government, your policies have failed. That is what you have actually demonstrated by your submission just now, and it really does say very little about what this government has positively done. Why don’t you talk about those issues instead of trying to find a way to escape your words of 1994? When you said those words in 1994, you said them with passion and truth, and now you are forced to defend them and you cannot.

Question negatived.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

The Australian Democrats oppose schedule 1 in the following terms:

(2)    Schedule 1, item 4, page 4 (lines 16 to 17), TO BE OPPOSED.

In my view this is much more important than the previous amendments because it goes to the core issue of contention in the legislation. Again, it reflects precisely the recommendation made by all senators in the report of the Senate Standing Committee on Legal and Constitutional Affairs. But, as Senator Ludwig said, there was a dissenting report by the ALP that was not dissenting from recommendations other than the final one that the bill be passed subject to the preceding recommendations.

I emphasise the third recommendation as well. Government senators on the committee recommended that the bill be amended to remove item 4, which is what the matter before us seeks to do, so as to retain in section 16A(2)(m) of the Crimes Act 1914 the phrase ‘cultural background’ in the list of factors that a court must take into account in sentencing an offender if relevant and known to the court. That recommendation is based upon and drawn from the overwhelming evidence presented to the Senate committee inquiry.

It was clear from that evidence that there had been virtually no consultation with anybody else prior to this being brought forward. So, really, the Senate committee inquiry in this case was the only substantive opportunity for consultation and engagement with the community to examine the proposed legislation. I remind senators and those listening to the debate that it is sad that we need to be reminded of these things, but we do these days. Legislation is put forward by government, but the fact that the government thinks legislation should pass does not mean that that is what is meant to happen. Under our system, governments have the responsibility to put forward proposed laws and proposed changes to laws. It is then the role of the parliament, and particularly the Senate, as the house of review, to assess those proposals, to consult with the community and to examine in detail what the practical impact of those changes would be.

The fact that the government puts forward laws and says, ‘We think this should happen,’ is step 1 in the process. Step 2 is the parliament looking at the proposed laws. That step 2 is not even an optional extra these days; it is a sort of superfluous redundancy in the minds of many in the government and, unfortunately, in the minds of many in the mainstream media who have this view that the government is elected to govern and everyone else should get out of the way. We do have a Constitution and we do have checks and balances in place that are specifically put there to ensure that a decision by one arm of our system of government—the executive—can be assessed by another arm—the parliament, including the Senate.

The courts then have a separate role of interpreting the law. I make that point because those who have been involved with the way the courts have interpreted this aspect of the existing law—those involved in the legal profession and those that the Senate consulted about this matter—all said that this was the wrong way to go. They did not just say, ‘This won’t have the effect that is suggested’; they said, ‘This is the wrong way to go.’ The committee’s report and recommendation reflected that, so all I am doing here is providing the opportunity for some members of the government to vote in favour of the recommendation put forward unanimously by the government members on the Senate committee.

In his second reading response the minister said that there is a problem with a lack of testing of what is a cultural background and whether what is claimed to be a cultural background is actually genuine. Taking that comment at face value, the next question is: even if that is the case, what do you do about it? Do you try to find ways of ensuring that claims are genuine in the same way as you would, I assume, with any other case somebody puts forward as mitigating or relevant information in a sentencing consideration? Any piece of information that is put forward which suggests it is a matter that should be taken into consideration—cultural background or anything else, potentially—might be difficult for the judge to test. You do not fix it by just taking it all out. Senator Ellison used the quote from Sue Gordon about the problem of there being whitefella law, blackfella law and bulldust law, which is not a bad quote. I do not dismiss the concern that, on some occasions, solicitors or barristers arguing the case for their client might seek to dip into bulldust law. I do not dispute that that may be tried from time to time. Senator Ludwig is more familiar with the foibles of the legal profession, so he may wish to defend the profession’s honour to the hilt, but people are there to try to get the best for their clients and occasionally they may try to dip a bit too deeply into their bag of tricks and stretch the boundaries beyond what they should be. Again, you do not fix it by just getting rid of a provision altogether.

I would also say that that is not the only circumstance where you get bulldust when it comes to the law. This whole procedure before us, which is frankly a load of bulldust, is being put forward under the pretext of dealing with Indigenous violence. Yet, as the evidence provided to the committee quite clearly said, it may catch other things as well. Paragraph 8 of the committee report quotes the Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner (Social Justice Commissioner) telling the committee:

The Commonwealth Crimes Act 1914—

that is, the legislation we are dealing with now—

... does not apply to offences of violence ... They are covered by state and territory laws.

This act we are amending does not deal with violence, whether by Indigenous people or by anybody else. The report went on:

... this amendment does not address anything to do with Indigenous violence. Under federal legislation there is nothing in the Crimes Act that addresses issues like assault, rape or sexual violence.

It appears that the things it may potentially catch that are relevant to Indigenous communities might be social security offences and the like. I am not saying it will have no effect at all, but in terms of the core rationale that is being used to justify this change I think ‘bulldust’ is the appropriate label to apply. Again, the issue here is the principle of equality before the law. That is why opposing this schedule is so important. I am not just opposing this schedule as a matter of form—because it was a recommendation of the committee—I am opposing it because I think it is very important. I am sure the committee thought so; otherwise it would not have made the recommendation.

I accept that it can be counterintuitive at first glance, which may be why this aspect of the law is sometimes misrepresented and subject to beat-ups by shock jocks and the like. It is a bit counterintuitive. You think, ‘Some people have a cultural background,’ and take into account that it is not a level playing field. The simple fact is that when you go beyond your first instinct and look at the reality of how the law operates—the practical context, the practical consequences—enabling all factors, including cultural background, to be taken into account is a key part of ensuring equality before the law. This is not just what I think Senator Ellison was trying to imply—that it is something that was tried 12 years ago but the world has changed since then. Of course the world has changed since then. I said in my remarks in the second reading debate that this was not just some bright idea that a few trendy people thought up in the middle of the 1990s and thought we should give it a go. This is based on and builds on fundamental common-law principles, which in shorthand means it has been around a while. It is also a measure that flowed out of comprehensive inquiries and thorough reports by the Australian Law Reform Commission and others.

The committee report in paragraph 3.47 says:

Many submissions and witnesses contended that the Bill is not based on, or supported by, any evidenced research. On the contrary, as HREOC argued, the Bill is in conflict with every major inquiry into the role of cultural background and customary law in the Australian legal system, including five reports of the ALRC.

The most recent report, Same crime, same time, was in 2006 and recommended the retention of cultural background in the factors listed in the relevant part of the Crimes Act. It also recommended that Aboriginal and Torres Strait Islander customs specifically should be enumerated factors, rather than just having a general reference to cultural background. So not only is the bill in conflict with that recommendation; it goes in the other direction. It is diametrically opposed to the recommendations of the Australian Law Reform Commission in numerous reports. According to the views of the Australian Law Reform Commission, it is also in conflict with the recommendations of the Royal Commission into Aboriginal Deaths in Custody,

I am not saying that we have to adopt everything the Australian Law Reform Commission says without a second thought, but you would want to have a pretty good reason and substantive evidence to go against it. That is why the government members of the Senate Standing Committee on Legal and Constitutional Affairs, I assume—I cannot speak for them—came up with the recommendation that the phrase ‘cultural background’ should be retained in the list of factors a court must take into account in sentencing an offender. I urge government senators to consider that and to vote in accordance with that recommendation.

I want to mention briefly the concern about the bill being in conflict with the recommendations of the Royal Commission into Aboriginal Deaths in Custody. It does not negate every one of the 300-plus recommendations—it only goes to one factor—but I do want to reinforce the point that Senator Chris Evans made in his contribution and also point to the very immediate reality in my own state of Queensland. That is the current concern following the coroner’s inquest into the death of an Indigenous man in custody on Palm Island and the finding of the coroner that that death was caused by the actions of a police officer. This bill before us, I hasten to say, will not address that issue at all, but the relevant point is that the coroner made recommendations stating the need to implement and continue to enforce the recommendations of the royal commission into black deaths in custody. The report clearly went to the failures—in this case the Queensland government’s—to properly implement and continue to implement and maintain the effect of those recommendations.

I am making that connection because there is clear concern amongst the Indigenous community that when we have all these reports that recommend various things governments then stand up and say: ‘Yes, we support the recommendations. We’re doing the right thing. Here’s another report showing that we’ve done it. Here’s another report reporting progress. Here’s another report reporting on the report.’ But when you actually get to the nitty-gritty of what is happening on the ground and have it examined properly by somebody independent you see that it is not being followed through on.

This is another example of that where a conscious decision is being made. We are being told and the Senate committee is being told a change is being made that is in conflict with one of those recommendations. How can you expect the Indigenous community to believe that governments are genuine when they say they adopt these reports and when they say they are genuine about acting upon these things if their actions do not match their words, if their actions go completely against not only their own words but the considered findings of report after report after report? We can now add to that the report of the Senate committee examining this legislation. The considered findings of the Senate committee were that, perhaps with the best intent in the world, this bill will make things worse.

Whilst I am ferociously critical of this legislation, I am trying not to reflect on the government or the intent, at least, of all government senators in what is being done here. Perhaps I have once or twice with regard to the minister, but I am sure there is a genuine intent to make things better. I know people on the Senate committee. Senator Scullion is in the chamber and was on that committee and I know he thinks about these issues regularly and deeply, and they are difficult issues. I am not suggesting in saying that this is bad that we have all the answers, but the fact that we do not have all the answers is no excuse to do something that we know is bad, that we know is wrong, that we know will make things worse and that we know will reduce equality before the law. That is why this particular section of the bill should be removed. That is why the recommendation of the Senate committee report should be supported.

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

I will not go over the same issues that Senator Bartlett raised. He raised them directly and cogently in relation to his proposal. Labor is prepared to support the proposal. I will add, in short, just a couple of matters to what Senator Bartlett said about this area. The original EM said:

The effect of this amendment is that a court will no longer be expressly required to consider a person’s “cultural background” when passing sentence on that person for committing a federal offence.

That is what the original EM said, but it then had a proviso which said:

Subject to the amendment to be made by item 5, a court will still be able to take into consideration the “cultural background” of an offender, in sentencing that offender, should it wish to do so, but this amendment removes an unnecessary emphasis on the “cultural background” of convicted offenders.

But the government has been arguing that of course we should all be treated equally before the law. That really is one of those easy phrases to say and one that you can bandy about, but I know Senator Ellison is a lawyer and I know he does not really mean that when he says it. It does not work that way, and Senator Ellison knows that clearly. The easiest proof of that is what Mr Daryl Williams, who became the Attorney-General under the Howard government, said about this when he added the phrase in 1994:

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.

So what it did was provide a checklist or guidance for judges. That is what Mr Williams expressed back then. What the government is saying today—in its words—is that it wants to give clarity. The clarity was there in the original provision, and what you now want to do is muddy the water so that you can provide Mr Brough some protection from his claims. That is all that it is, because when you look at the way it operates it does no more than that. This government knows that, but it will use that circumstance to try to hide the matter.

But the other curious matter that has come to light—and I ask the minister about this; it is appropriate to deal with it during the debate on Senator Bartlett’s proposal to omit the schedule—is that there is another reference in the act we are dealing with. The reference is in section 19B, which deals with the term ‘cultural background’. I was wondering why that has not been dealt with in this if the intention is to deal with cultural background in the way that you have argued today. It seems that section 19B of the Crimes Act, which deals with the discharge of offenders without proceeding to conviction, contains a similar reference to cultural background. If you were serious, why did you not address that issue in section 19B as well?

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

At the outset can I say that the government is opposed to the Democrats proposal. I think I have covered that adequately in previous debate on the issue. Senator Ludwig has raised a question about section 19B of the Crimes Act 1914, which deals with the discharge of offenders without proceeding to conviction. That provides:

(1) Where:

(a)   a person is charged before a court with a federal offence or federal offences; and

(b)   the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

(i)    the character, antecedents, cultural background, age, health or mental condition of the person—

and other factors—

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation ...

It then provides a discretion for the court, by order, to dismiss the charge or charges or discharge the person without proceeding to conviction. There are a number of other provisions in that section.

In relation to why that has not been amended I will take advice from the officials. I understand that the section deals with minor offences, which would not be contemplated here. I will take that on notice and provide the committee with further details. Perhaps we can deal with the Democrats proposal which we are facing now. The government has its amendments and I can deal with this question more fully during the debate on those two amendments.

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

I hope you do, because it is not good enough, when you have made a statement in both the second reading speech and in the legislation about how you are going to fix this area. You might be able to say that it is to deal with minor issues but I do not know that because it is a discretion for the court to operate under as to how section 19B will operate. When you look at the provision it appears that you are saying—I hope that you can clarify this, because it is of great concern—that it is okay to excuse it at the point of being found guilty, prior to conviction and sentencing, but it is not okay to deal with it for bail. I suggest that that is a very difficult issue and in my view it exposes the hypocrisy of this government when it deals with this matter.

You say that you want to remove the reference to ‘cultural background’ from this as a lead. It seems to me that you are saying that, in this instance, after the guilty verdict is found the magistrate that you have appointed can use section 19B to not go on to sentence, but if the magistrate does go on to sentence they cannot use it. That is the ridiculous position you have put. I hope I am wrong, because if I am not wrong then all of your arguments have been blown out of the water and you are left with just a fig leaf in front of Mr Brough. If I am wrong then I am prepared to concede that point. I hope you have had enough time, now, to have a look at it and tell me why I am wrong.

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

I will reserve my comments until the debate on the government amendments because they will touch on this issue.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

The question is that schedule 1, item 4 stand as printed.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to 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—

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

I’m asking why you haven’t addressed it.

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

Senator Ludwig has asked why proposed section 15AB and section 16A are couched in similar terms in dealing with discretion and section 19B is not. But I think that in the circumstances—

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

You can read section 19B; it is a discretion.

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

It says ‘the court is satisfied’. That is not a discretion. The court has to be satisfied. Section 16A has a list of things the court may take into account. There are very different considerations in proposed section 15AB and section 16A on one side and section 19B on the other. We will take that on notice and advise Senator Ludwig accordingly.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to 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.

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

I have not had a chance to see those comments by Minister Brough, but I am not aware of Minister Brough being critical of state or territory police. That is certainly not my understanding. I place on record the government’s view that the Northern Territory Police have had a good deal of experience in law enforcement with Indigenous affairs, and I am on record as saying that we value the cooperation that we get from the Northern Territory Police. I said that in Alice Springs recently. I believe that they do a good job and I stand by that statement. I do not accept that Minister Brough has criticised the Northern Territory Police. I am not aware of him criticising any of the state or territory police. In fact, at the summit, we were talking about the cooperation with the state and territory police as being fundamental to progress in this area. I certainly believe the Northern Territory Police do a good job, and we appreciate the cooperation we get from them. Commissioner White does a very good job in leading the Northern Territory Police.

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

The heading of the article is ‘Federal Minister criticism of NT Police’. That is what the headline of the article says. I do not know why the Howard government feels the need to abuse and denigrate the Northern Territory Police in the way that Mr Brough has in that article, but these people do not operate on a ‘fly-in, fly-out’ basis. They try very hard under very difficult circumstances. They deal with the problems of violence in Indigenous communities every day. Abusing the Northern Territory Police will do not one thing, not one jot, to solve the problems. The point I make is that neither will this bill.

Nigel Scullion (NT, Country Liberal Party) Share this | Link to this | Hansard source

Because of my particular interest in this matter and the fact that I was with the minister in Alice Springs over that period of time, perhaps I can share with the chamber the circumstances that led to those comments. Mr Brough was speaking to a number of Indigenous people in the township of Alice Springs particularly early in the morning. He met with several groups and inquired as to their injuries—how they happened, why they were like they were and whether they had rung the police. They reflected to him: ‘No, the police won’t come.’ Since then I know that the minister has met with representatives of the police, spoken to a number of police officers and, in fact, been on night patrols himself.

The overall comments he has made reflect upon the resources that are provided to the police officers of the Northern Territory, and I am quite sure that Minister Brough will not resile from those remarks. The very good police officers in the Northern Territory cannot do their job unless the Northern Territory government provides them with the resources to do so. That is the overwhelming position that Mr Brough has taken on all of these matters. When he said that the police appeared unwilling to attend, that was just a reflection of anecdotal information that had been passed to him that very day, so one could understand people taking that remark in a slightly different context. Because of the nature of the remarks that have been made I just thought I would put that explanation on the record.

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

I do not want to prolong the debate unnecessarily but, in relation to the Northern Territory government, the previous government had 27 years to address this. It cannot be sheeted home to the short period that the Northern Territory government has been under Labor, which seems to be the flavour of comments from a range of people. These things did not appear overnight; they have been there for a long period. It is now necessary to put aside the way Mr Brough plays the blame game. These issues are very serious and they do need a proper lead, across the board, by a federal government in coordination with the states. It is a serious issue and that is how it should be dealt with.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.