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

I rise to speak on the Crimes Amendment (Bail and Sentencing) Bill 2006. It is clearly a bill that is fundamentally flawed. This bill purports to tackle ‘the relatively high level of violence and abuse in Indigenous communities,’ but it will achieve nothing of that sort. What I have heard in the committee’s hearings on this bill leaves me in little doubt that this bill is nothing more than a legal fig leaf to cover the inadequacies of the minister purportedly responsible for Indigenous affairs. The legislation is in fact not worth the paper upon which it is written. It is a distraction; it is a waste of the time and energy of this parliament. The media and the Public Service are, as you can appreciate, very busy at this time of year. There is a legislative program to be dealt with before we go home for the Christmas break.

But, more importantly, this bill is a distraction from the 10 long years of failed Howard government policy on Indigenous affairs. It is a distraction from the litany of Liberal policy failures of Ministers Herron, Vanstone, Ruddock and Brough. The government has had 10 years and two national summits on violence in Indigenous communities and has absolutely nothing to show for it. Only last week at estimates the government’s own backbench took a stick to the miserable failure of the office of Indigenous affairs, as well they might. It is a shame that they failed to highlight the abysmal performance at the ministerial level. How is it that in a time of national prosperity—a prosperity, may I remind the Senate, built by Labor—the Howard government and its coterie of incompetents have managed to leave Indigenous Australians for a large part worse off than ever before?

Turning to the content of this bill itself, as the short title of this bill suggests, it makes changes in two areas of the Crimes Act 1914: the provisions for granting bail under proposed section 15AB and the provisions relating to the matters courts are expected to take into account during sentencing under section 16A. The bail provisions inserted by proposed section 15AB list new matters to be considered in granting bail—namely, the impact the decision may have on victims or witnesses alleged or otherwise. These new measures at least in sentiment may have some merit. Indeed, excluding subsection (1)(b), this section is the only element of the amendments to receive any reasoned support from the non-government submissions to the Senate inquiry. Specifically, the Aboriginal Legal Service of New South Wales and the Australian Capital Territory believed that directing ‘consideration during bail deliberations to the circumstances of the alleged victim and potential witnesses, especially those in remote communities’ was appropriate. But it stopped short of supporting subsection (1)(b), which prohibits the consideration of customary law and cultural practices in bail deliberations. Equivalent prohibitions are made in the context of sentencing. I will deal with both limitations simultaneously when I get to those measures, to which I note that the government has already flagged amendments.

There are two important points worth noting about this new section. To begin with, this is a matter that is currently under review by the Council of Australian Governments. Page 13 of its latest communique, dated 14 July 2006, states:

COAG has asked the Standing Committee of Attorneys-General (SCAG) to report to the next COAG meeting on the extent to which bail provisions and enforcement take particular account of potential impacts on victims and witnesses in remote communities and to recommend any changes required.

As such it is grossly premature of the government to be making these amendments given SCAG has not had the opportunity to present its report nor has COAG been given a chance to consider any subsequent recommendations. If this bill passes, amended or otherwise, there is still a strong possibility that we may be legislating in this area again inside the next 12 months.

Let me now demolish any rational argument in favour of this bill by quoting some of the high priests of hypocrisy. In this very session of parliament, I have also attempted to amend provisions relating to sentencing in the same part of the Crimes Act 1914 by the Crimes Amendment (Victim Impact Statements) Bill 2006. I was told at that time by government senators in the debate on that bill that it would be:

... premature for the government to consider the use of victim impact statements in isolation.

That was what Senator Ian Macdonald said. I was also told:

This government is currently considering the Australian Law Reform Commission report and the report of the Parliamentary Joint Committee on the Australian Crime Commission on the recommendations about victim impact statements in the context of the wide-ranging recommendations that the ALRC made about the sentencing of federal offenders. The Australian government’s response will be made public. Work is now being done preparing a response to both of these important reports.

I would like to say again that it would be premature to consider the use of victim impact statements in isolation. Yes, they have a key role in sentencing, but we should not consider them in isolation.

That was said by Senator Bernardi. I was also told:

So there are federal reports and recommendations which press this matter ... But I take the view that other senators on this side of the chamber have taken during the course of this debate and suggest that, rather than passing this bill, the better course would be to ensure that there is widespread consultation with other agencies with regard to this proposal, to discuss the matter widely amongst members of the profession in jurisprudential circles and, in light of those considerations, to introduce a more comprehensive reform of the Crimes Act.

That was said by Senator Trood. I was told:

We should take our time. We should make sure that we get it right. We should make sure that we take into account all relevant factors in relation to sentencing policy so that we ensure that we get this right.

That was said by Senator Fifield. There was a litany of senators commenting on my private member’s bill, but the comments are germane to the point that I am making on this bill because apparently the Howard government’s position not much more than a fortnight ago was one of total opposition to incremental change in the sentencing provisions of the Crimes Act in favour of implementing wide-ranging recommendations on sentencing. And here we are today and the disingenuousness of the government lies exposed. It is okay apparently for the government to incrementally change sentencing legislation when it suits them. They are hiding behind their own rhetoric. How brazen they are in their arrogance. Let me remind senators again of what COAG said:

COAG has asked the Standing Committee of Attorneys-General (SCAG) to report to the next COAG meeting on the extent to which bail provisions and enforcement take particular account of potential impacts on victims and witnesses in remote communities and to recommend any changes required.

Instead of proceeding through SCAG as agreed, we are now legislating unilaterally. This means that only part of the bill that possesses any possible merit has been acted on in direct contradiction to the government’s own commitments. It is abundantly clear that, by disregarding the COAG agreement relating to bail, the government’s attempt to rely on other parts of the communique to justify the remainder of the bill rings truly hollow. We now have a government that has said about sentencing provisions in relation to a private member’s bill that that matter should form part of the bigger picture and that we should wait to see what the bigger picture is. But the government’s position is: ‘No, that rule doesn’t apply to us, although we talk about it and we say it. What we say in this instance is that we’ll ignore the bigger picture and deal with this small proposal because it suits us.’

Let me also talk to other parts of this bill. The second substantive change that the bill seeks is the removal of the reference to cultural background that appears in section 16A, which lists the matters that courts should have regard to when passing sentence. Senator Sandy Macdonald, the Parliamentary Secretary to the Minister for Defence, said in the second reading speech on this bill:

The Australian Government rejects the idea that an offender’s cultural background should automatically be considered, when a court is sentencing that offender, so as to mitigate the sentence imposed.

I have to ask the question: did the government actually read section 16A(2)? When I turned to my copy of the Crimes Act 1914 I saw the following paragraph:

In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court.

Let me emphasise the word ‘relevant’ because, although section 16A(2) directs the court to take into account a range of matters, including cultural background, it must only do so where they are relevant and it is left to the court to determine whether a matter is relevant or not. If the government wants these amendments to the Crimes Act to be taken seriously, then it is not enough to simply wander into the chamber and reject some unattributed idea. It is incumbent on the government to point out the specific failings in the law as it stands and explain in full how these changes will remedy them. That is, after all, the difference between legislating and a high school debate.

Sadly, though, this government has failed in this responsibility and, instead of basing its case on both fact and experience, it has relied solely upon some idea—and, as I said, an unattributed one at that. Indeed, when asked to identify where the consideration of customary law or cultural practice has led to inappropriately lenient sentences, the Attorney-General’s Department failed to provide a single case. When pressed for the details of cases known at the time of drafting where cultural background or customary law had been used to determine guilt or innocence in matters of federal jurisdiction, the only example that the government could provide related to an unsuccessful attempt to use hunting traditions as a defence for hunting birds that were listed as endangered. In the future, if the government wants to use the Senate’s time to debate propositions or ideas, it should draft an appropriate motion or use the adjournment debate like other senators do. In the future, if the government wants to deal with matters such as this, as I have said, it should seriously consider both waiting for the overall COAG response and, in the interim, using other mechanisms, rather than using an instrument such as this today.

I turn to the amendments that will direct authorities in granting bail under proposed section 15AB(1)(b) and those directing courts in sentencing under proposed section 16A(2A) to exclude from consideration any form of ‘customary law or cultural practice’ as a reason for ‘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. The government has already flagged amendments in this area in response to recommendation 1 in the report on the bill by the Senate Standing Committee on Legal and Constitutional Affairs. In the committee’s view, this provision as originally drafted would have meant that:

... a court could not take into account customary law or cultural practice to render criminal behaviour less serious but could consider these factors if it rendered criminal behaviour more serious.

It is good to see the government take at least one of the committee’s recommendations seriously, but this only serves to reinforce the hasty way that this legislation has been thrown together. Although it is an improvement, it does not make either the bill as a whole or even the individual provisions in any way redeemable.

When you examine the evidence given by the department in relation to these new paragraphs on customary law and cultural practice, a number of inconsistencies are revealed. For instance, the department has said that the bill is intended to address ‘cases where judges or magistrates are presented with arguments in mitigation relying on customary law or cultural practice, which are based on ... a misunderstanding of customary law’. That almost implies that the judges and magistrates, appointed by the Attorney-General, are not capable of isolating such instances. Meanwhile, the department has also said that it may still be relevant for a court to take into consideration that an offender lives in a customary law environment, such as a remote community, or that they will receive or have received tribal punishment. The problem with the bill, even if amended, is when you combine the removal of the reference to ‘cultural background’ with the fact that ‘cultural practices’ and ‘customary law’ have both deliberately been left undefined.

The committee also examined other arguments, including raising a number of issues with the bill to demonstrate why it is flawed. There was a lack of consultation. That is a sad refrain that I have heard often in the last year or so. This government has failed to consult widely in respect of its legislation—an emerging trend that really started shortly after 1 July 2005. The committees that have been set up to inquire into bills have been given short time frames. When we get to the departments, we find that there has been a lack of adequate consultation on the bills. Such matters have also been raised by witnesses before the committees. They have had insufficient time to prepare submissions, and there has been a lack of consultation on behalf of the government. In response, the government says, ‘The committee is part of the consultative process.’ That is rubbish. There should be wide consultation on these matters before they get to the committee process.

In this instance, when concerns were raised by witnesses before the committee, the department indicated that it had not directly consulted with Indigenous groups about the bill and that there had been no consultation with any police forces or police unions and no consultation with any lawyer associations. This should come as a surprise to me, but it does not. When the government was given a genuine opportunity to help victims of crime, via the bill I introduced dealing with victim impact statements, it indicated that it could not possibly proceed with amendments to the act without widespread consultation. So when it suits the government it will consult.

Ultimately, these changes will have almost nil effect on violence and sexual abuse in Indigenous communities. We all want an end to violence and sexual abuse across the board—that is a given—but what this bill purports to impact upon is not that. Why? As noted by the committee and almost every organisation that made a submission to the inquiry, those sorts of offences are actually covered by state and territory legislation. When you look at federal prisoners as of 1 September 2006, three-quarters were incarcerated under drug importation offences. When you look at the 74 prisoners convicted under the Crimes Act 1914, which make up the bulk of the residual, more than half of their offences related to social security. So how these changes are going to make an impact upon the serious problems of domestic violence and sexual abuse is anyone’s guess.

The gall of this government knows no bounds. They truly are shameless in the depths of the hypocrisy to which they have now sunk. If any further evidence were required of just how hollow this bill really is, you only need to look at the history of the reference to cultural background in section 16A(2) that this bill removes. The reference was originally introduced by the previous government under the Crimes and Other Legislation Amendment Bill 1994. And guess who supported those changes? The members opposite, that’s who.

What we have before us today is a complete backflip by this government. If we want a rationale for why this legislation is unnecessary, we need only take a trip down memory lane. I would like to remind the present Minister for Justice and Customs, Senator Ellison, of what he had to say in his second reading speech on the very measure he now seeks to amend. 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.

Daryl Williams, who became Attorney-General under the Howard government, had the following to say:

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— (Time expired)

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

The Crimes Amendment (Bail and Sentencing) Bill 2006 is a disgrace. Not only is it bad law, not only is it discriminatory; it is also a total con. It is bad enough that it is going to create a change that will mean that people who are not from a dominant cultural background will not have their cultural background taken into account and therefore will not have equality before the law. In some ways even worse is the fact that it is being put forward as in some way being an action in response to the problem that we all acknowledge and the problem we all want to see more action on—that is, violence in Indigenous communities. I should point out that, whilst there is serious child abuse and domestic violence in Indigenous communities, we cannot kid ourselves that the rest of Australia is not also suffering from significant levels of that social blight.

With regard to the legislation before us, we can see the political veneer being used here: we need to look tough and look as though we are doing something about violence in Indigenous communities, so we will make a change to the legislation to say that we are no longer required to take cultural background into account in sentencing under the Crimes Act, even though at the federal level the Crimes Act does not have any offences that relate in any way to violence in Indigenous communities—or anywhere else in the community, for that matter. It is being put forward under completely false pretences and used basically as a stalking horse to rush through an ideologically-driven change that negates the validity of people of different cultural backgrounds, including and most specifically Indigenous Australians. If there is any group of Australians whose unique cultural background and heritage we should not only acknowledge but celebrate it is Indigenous Australians.

I really cannot do much better than go the report of the Senate Committee on Legal and Constitutional Affairs, which, apart from its final recommendation suggesting that the bill could still pass with some amendments that do not, I think, reflect virtually every word before it, is a very solid summation. It was a report put together by a government controlled committee including senators from the Liberal Party—from the government benches—who we know have a great degree of expertise and integrity in these areas, particularly Senator Payne but also Senator Brandis. Frankly, it is hard to find a report that is more scathing in its assessment, apart from its failure to do what should have been done, which was to recommend that the bill be rejected. I should note that, nonetheless, they have circulated two amendments to at least attempt to ensure that the government picks up the specific recommendations of the Senate committee inquiry and the specific recommendations put forward by the government senators—the Liberal Party senators—on that committee.

But let us look at the reality of what is before us, as opposed to the smokescreen that has been put forward as a justification by the government, without going through all the detail of the findings of the committee. Let us look at the summations of the committee from paragraphs 3.90 onwards. These are words that have been put together by Liberal senators—words that I endorse, I might say. The report says:

... the committee considers that the Bill’s focus is misdirected.

                 …         …         …

... the committee notes the absence of any Federal laws relating to violence or sexual abuse in Indigenous communities that will be affected or changed as a result of the Bill.

                 …         …           …

The committee has concerns in relation to the haste with which the proposals in the Bill have been drafted and introduced into Parliament, without adequate, if any, consultation with Indigenous and multicultural groups.

The report goes on to say that the committee also notes advice from the Australian Law Reform Commission that in relation to its Same crime, same time report into federal sentencing, which goes to the heart of equality before the law, the federal government made a series of submissions, none of which suggested that customs or cultural background be removed from the Crimes Act as a sentencing factor. It said that, as recently as February this year, according to the ALRC, a submission from the Attorney-General’s Department made positive reference to initiatives that can be developed to assist the courts to take into consideration the cultural background of Aboriginal and Torres Strait Islanders in the sentencing phase.

We have a component in legislation that was put in place as long ago as 1994. It was not just put in place on a whim; it was put in place following comprehensive investigations into the best way to ensure equality before the law, following on from the report and recommendations of the Australian Law Reform Commission. It says in the report that it was put in place with bipartisan support. I would say that it was with multiparty support, because I am sure that the Democrats from the crossbenches also supported that change back in 1994. Throughout all of that period it was continually being reinforced as a component by report after report right through to February this year when the Attorney-General’s Department made positive references to initiatives to assist the courts to take into consideration the cultural background of people in the sentencing phase.

What has changed? What has changed is huge moral panic and media outrage about what is, I accept, a legitimate concern regarding some Aboriginal communities. That is being used as a smokescreen to completely reverse the solidly based, properly thought through and fully considered cross-party evidence based situation in the law—which is to be taken out to insert an ideologically driven, completely divorced from reality obsession with dismissing any cultural difference that does not reflect the dominant Anglo-cultural preference of those who promote this ideology. That, I would suggest, is a perversion of the law, and it introduces a reality that is racially discriminatory, where the cultural background of one group of people, which is automatically infused in the way the law is interpreted, has precedence over everybody else’s. This action will consciously take away the requirement to give automatic consideration.

There has been a lot of misrepresentation about what this means, not surprisingly by populist tabloid media and shock jocks, who will always jump on these sorts of things and say, ‘People are getting special treatment,’ or ‘This will mean people are able to claim some made-up cultural background to avoid being convicted or to get a lighter sentence.’ Those sorts of things, frankly, show not only breathtaking ignorance but total contempt for the rule of law and the adequacy of our legal processes. That is not to say that judges always get it right, any more than juries always get it right, parliaments always get it right or shock jocks always get it right. It is to say that we have in place quite a strong system of law, built up over a long period of time, that is continually monitored and reviewed, and when there are occasional situations where there is a belief that a wrong sentencing decision was made, for example, then there is scope for appeal and review.

The example that was used to justify this sort of change was a decision by one judge to give what was felt to be a totally inadequate sentence for a very serious offence to an Aboriginal man who was guilty of a serious act of violence. But that decision was reviewed and a harsher penalty was put in place—a clear indication the system is working. The government has put a bazooka right through the middle of this well-established principle when there was no indication and no evidence—certainly no thorough review, consultation or examination in any thoughtful, comprehensive and proper way—that it was not working or needed reform. All we got was recognition somewhere that all of this current publicity and concern creates the need to look like we are doing something. This will be a chance to not only look like we are doing something—even though it actually has no connection at all to Indigenous violence and the act we are dealing with has no connection to offences that would arise from that—but also implement the ideological agenda and try to white out the significance and the relevance of any cultural background other than the dominant one.

Returning to the report, paragraph 3.96 states:

… the committee considers that the most concerning feature of the Bill is the symbolic message that it sends to the judiciary (and the community at large), and the judicial uncertainty it may create.

We have a well-established component of the law that has operated for over a decade. That is being taken out and taken out without warning and without consultation. Not only was there no consultation with Indigenous communities, which is a disgrace, but there was no consultation with multicultural communities, who probably do not even know this is happening. The stated political context is about Indigenous communities, but it will affect people from a diverse range of cultural backgrounds and, most notably at the moment, Muslim Australians who are from non-European backgrounds. There was not even any consultation with the legal profession. Ludicrous!

As the committee report says:

As evidence to the inquiry strongly indicated, the Bill will inevitably impact most on Indigenous Australians and those with a multicultural background. The committee notes the Department’s assertion that the Bill is not discriminatory—that the Bill may be drafted in a way that accords with principles of formal equality but, clearly, in practice it is likely to apply only to certain categories of offenders. It does not therefore provide substantive equality to Indigenous offenders or offenders with a multicultural background.

I will just pause on that particular finding of the Senate committee—the finding of the entire Senate committee, a Senate committee controlled by government senators who we would all acknowledge have expertise in this area. The committee says that the bill ‘does not provide substantive equality to Indigenous offenders or offenders with a multicultural background’. We are talking about equality before the law here. You could say: ‘Well, this is only one act, and it’s only a part of an act—just bits to do with sentencing and bail. It doesn’t actually deal with whether or not people might be convicted. And it doesn’t prevent background being taken into account; it just takes out a requirement that it must be taken into account.’ But it is still a significant shift on principle—and it is a fundamental principle. Equality before the law is a fundamental principle.

Surely, if you are going to make a change to the law and it is assessed by an entire Senate committee—a government controlled Senate committee—that the change will not provide substantive equality to Indigenous people or people with a multicultural background, you want to make absolutely sure you have an extremely good reason for doing it. You would not want, I would have thought, to make a change to the law that creates a situation where there is not equality for people of different cultural backgrounds without very thorough consultation, without building acceptance for the reasons for it and without building a credible case that it will have some positive effect.

There are very few principles that are totally absolute—I accept that—but you must really put forward a strong case that it will have positive benefits. I am not one to get up on high moral ground and spout with great high moral indignation about something, oblivious to what its actual impacts may be on the ground. If a case can be made that a practical, positive consequence can occur on the ground from this sort of change, then at least I would be prepared to consider it. It would want to be a pretty good case, because equality before the law is a very fundamental principle. But if you can make a case then make it. Build that case, engage with people and consult with them. Make sure that those people who will be affected by it understand why it is being done and, ideally, even accept that this is being done for the greater good. Actually do the work if you have a genuine commitment to doing this sort of thing.

But unfortunately what we are seeing, which is not uncommon and which is a direct consequence of the fact this government now has control of the Senate, is none of those things. The government’s view—and this is a mentality that is permeating throughout every nook and cranny of the executive: ministers, their advisers and the like—is that it runs the joint, it decides what happens, it is going to do it and everybody else can just get out of the way. The government think: ‘We might let you make a speech about it as we’re bulldozing it through; we’ll ignore what you say and just spout our talking points anyway. But the bottom line is: we rule. Out of the way!’

Now, maybe in a totally brutish context of an assessment of the way politics operates, you could say that that is just the way of the world. My annoyance with this is not based on my inability to stop this sort of legislation. Before the government had total control I saw lots of legislation that I did not support passed in this chamber, but the way this is being done—with total contempt for the community and the people who are directly affected by these changes and complete lack of interest in recognising that there is any need to consult with the people who are directly affected or to seek the opinions of people who have far greater expertise than I do—is frankly unforgivable.

I want to pause on paragraph 3.97 of the report because I think it is a particularly crucial and important finding of the entire committee. Further on in its report the committee said:

The committee does not accept the Department’s explanation that this will ensure the law applies equally to all persons. Evidence received in the course of the committee’s inquiry—

that is evidence from people with expertise in the area and who actually work with the law on the practical side of things in the real world—

strongly suggests that, in practice, this will not be the case.

People would not get equality. The report went on:

The proposal is at odds with well-established common law principles relating to the relevance of cultural background and customary law to sentencing decisions.

The issue that is being addressed—the issue that is being curtailed here—is not some touchy-feely bleeding-heart 1990s idea that has been plucked out of the air. As the committee inquiry said, it is in accordance with well-established common-law principles, codified in this case to ensure that it worked effectively. It is not some bolt out of the blue that was trendy in the mid-nineties. The report said that it was in accordance with ‘well-established common-law principles relating to the relevance of cultural background and customary law in sentencing decisions’.

As Senator Ludwig has already noted from the report:

... the Federal Parliament gave bipartisan support to the insertion into the Crimes Act of the ‘cultural background’ requirement in 1994. The committee is concerned about the complete absence of consultation in the present case in relation to removing the phrase, despite its specific introduction in 1994.

The report goes on:

In addition, the committee notes that, while the Bill’s stated aim is to address violence and child abuse in Indigenous communities—

even though the legislation that it is amending actually does not deal with any offences that relate to that—

its implications are much wider.

Further down the committee noted in its report:

... the reasons underlying the ALRC’s recommendation relate to offenders from a multicultural background as well as to Indigenous offenders. The committee is concerned that the Bill, as it impacts upon offenders from a multicultural background—

as well as an Indigenous background—

has not been fully considered.

As I said at the start, this bill is a disgrace. This bill is racially discriminatory in its effect. That may not be its intent—I am not sure—but it is certainly discriminatory in its effect. It is also a con. It does not address the issue that it supposedly has been brought forward to do. It is simply a vehicle to introduce an ideological obsession to white out any other cultural background and validity other than the dominant one. It is a disgrace. (Time expired)

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

I wish to speak in this second reading debate on the Crimes Amendment (Bail and Sentencing) Bill 2006 and in doing so express my disappointment that the Senate has been required to deal with such an obnoxious and badly motivated piece of legislation. It is ironic that today, following the release of the most recent statistics on Aboriginal imprisonment in Australia, we are dealing with a bill that effectively has at its core an argument that we are not locking up enough Aboriginal people.

We are locking up Aboriginal people in record numbers in this country. Despite only representing about three per cent of the population, they represent 22 per cent of the prison population. So the assertion inherent at the core of this bill—that somehow we are not locking up enough Indigenous men—is just completely wrong, absurd and terribly motivated. The fact is that we lock up Aboriginal people in record numbers. The challenge for us is to deal with the terrible tragedy of criminal offences and the imprisonment of Indigenous people.

This bill has arisen out of the latest concern and publicity surrounding violence against Aboriginal women and children. As we all know, every two or three years there is a focus on this issue. Deeds are promised—action is promised—and then the media spotlight moves on and an examination of the actions announced by governments establishes that nothing really changes and that action was not delivered. Once the media spotlight moves on, the attention on the issue moves on.

As part of the government’s latest reaction—its latest summit, which I think was the third held by this government—it has promised to take on the issue of bail and sentencing and the issue of customary law as a defence. It is a complete furphy, as Senator Bartlett said. It does not go to the heart of the issues and it does not go to the real causes of the violence and abuse against Aboriginal children, which is where we should be directing our energy.

Let me say at the outset: Aboriginal women and children should be able to live in safety in their communities with the full protection of the law. There should be zero tolerance of abuse of women and children, of whatever nationality or ethnic background, in Australia. Part of the problem we face is the inherent racism that occurs in dealing with Indigenous victims of abuse and violence—the fact that in Australian society there is an attitude that somehow it is different if Aboriginal women and children are attacked, somehow it is part of their culture, somehow it is acceptable behaviour in a way that it would not be in any other community. That has to be countered by every leader in this country, every politician in this country, because it is simply not true.

One of the things that frighten me most about this bill is that it seeks to perpetrate the myth that somehow violence against children and women is endorsed or perpetuated by Aboriginal customary law. That is wrong. It is a lie. There is no evidence for it. And the danger in this bill is that it seeks to perpetuate that myth. That is why it is so abhorrent, and that is why the Senate ought to reject it. There is nothing in Aboriginal law and cultural practice which condones violence, abuse or criminal behaviour against women and children. It is just not true. Customary law and cultural practice are not a cause of the violence or abuse of women and children; in fact, that is more a reflection of the breakdown of Aboriginal law and culture: the effect of European settlement, the effect of alcohol, the effect of drugs—the effect of the breakdown of their traditional law and culture. So, in the way that this legislation draws us away from the real causes of that violence and abuse, it does the debate and the campaign against that violence and abuse a terrible disservice. It is very much about the Howard government demonising Aboriginal culture. We saw that in the land rights legislation debate, and we are now seeing it here. I think it does the government no credit at all.

All Australians have been shocked and saddened by the abuse that has received so much publicity in recent months. As I say, we have had no shortage of inquiries and reports. We had the report of the Queensland Aboriginal and Torres Strait Islander Women’s Task Force on Violence in 1999 and we had the 2002 Western Australian Gordon inquiry. In 2003, the Prime Minister personally convened a crisis summit of 16 Indigenous people to discuss family violence and child abuse in Indigenous communities. The government has been told of these problems time and time again, but sadly there has been little progress. Last week’s report by the Australian Institute of Health and Welfare is another reminder of the problems of family violence faced by Indigenous Australians.

Labor strongly supports the measures in Aboriginal communities to provide protection to Aboriginal people, including the very strong policing measures that are required, but unfortunately the government’s record on delivering community safety measures has been mixed at best. The government’s responses have been tied up in red tape and bureaucracy, like so many of its other initiatives in the Indigenous policy area. At the budget estimates in May we learned that, of the $37 million allocated to family violence programs after the last summit, the 2003 Prime Minister’s summit, only a small percentage—about 15 per cent—had been spent three years later. All talk, no action.

There is a serious issue in terms of Aboriginal people’s engagement with the criminal justice system and incarceration. In WA, my own state, Aboriginal people make up 40 per cent of the prison population, despite only representing three to four per cent of the population. Between 70 and 80 per cent of the children in juvenile detention centres in WA are Aboriginal. That is the problem. New research by the New South Wales Bureau of Crime Statistics and Research shows that the rate at which Indigenous Australians appear in courts on criminal charges in New South Wales is 13 times higher than that of non-Indigenous people. Furthermore, in the last six years, the national rate of Indigenous imprisonment has risen by 23 per cent. So the rate of imprisonment has been rising rapidly—by 23 per cent—and the ratio of Indigenous to non-Indigenous incarceration has risen from 9.9 to 12.1.

We are locking up more and more Indigenous people at a more rapid rate, and the government come forward with a bill that says: ‘Well, we’ve got to cut out their defences against being imprisoned.’ There is no sign that they are defending very successfully against imprisonment. All the records, all the information, says that Indigenous people are not doing at all well at defending themselves against imprisonment. So this bill is just completely out of whack with the reality and with what this community and this parliament need to be dealing with. Our problems are much worse than those of other countries—say, for instance, the African-American community in the United States. Our imprisonment rates of our Indigenous people are world leaders. We lock up our Indigenous people at a much higher rate than virtually anywhere else in the world.

The New South Wales research shows that the prime cause of incarceration among Indigenous people is related to the abuse of alcohol and drugs, and that is consistent with substantial previous research linking drug and alcohol abuse to contact with the criminal justice system. The report also pointed to other factors including low levels of education, poverty and unemployment. All other research points to a complex web of factors including poverty, inadequate housing and social dysfunction as drivers of criminal behaviour. A range of testimony to the Senate inquiry into the bill noted disadvantage, poverty and the breakdown of traditional Indigenous community and social structure as the causes of crime, violence and abuse. It is the breakdown of the traditional legal and community structures that has driven much of this.

This bill will not protect children from abuse. It will not protect one Aboriginal woman from being bashed. This bill does nothing to attack the causes of the problems in communities and the causes of the violent behaviour. As I say, this legislation actually seeks to perpetuate an analysis of the problem that is wrong, politically motivated and deeply harmful to Aboriginal people.

Protection of women and children from violence and abuse and reduction of contact with the criminal justice system means combating drug, alcohol and substance abuse and building the self-worth of people in Indigenous communities. It requires relief from the endemic poverty and sense of hopelessness which are a way of life for so many Aboriginal people. Scapegoating Aboriginal culture and locking up increasing numbers of Aboriginal men is just not a solution to the problem.

In recent months, there has been a growing drumbeat from the government which degrades and vilifies Aboriginal culture, tradition and communities. A range of negative assertions have been made by senior members of the government about Indigenous culture, and there has been a complete lack of engagement and consent sought from Aboriginal people. This is part of that cultural attack. I reiterate: there is nothing in Aboriginal law or culture which causes or condones the violence, abuse or sexual assault of women and children. People must understand that.

Larissa Behrendt, Professor of Law and Indigenous Studies at the University of Technology in Sydney,. told Lateline earlier this year:

There’s nothing in—

Aboriginal customs or values—

that ... advocate the fact that it’s appropriate to treat Aboriginal women and children with disrespect and there’s nothing in those cultural values that ... permit people to abuse Aboriginal women and children.

She is an expert in law and in Aboriginal law. In its submission to the Senate inquiry into the bill, the Law Council noted:

Indigenous community leaders have consistently abhorred any suggestion that violence against women and children is justified or condoned in any way by customary law.

Currently, cultural background is among a list of factors that can be considered by judges in sentencing—only in sentencing. The Law Council noted to the Senate inquiry:

... courts recognise that Aboriginal customary law and cultural practices will only be relevant in limited circumstances and will not justify or condone abuse of women and children.

Indigenous communities may apply traditional punishments in the case of certain offences. Customary law is a complex system of social and cultural relationships, identities and responsibilities and is of central importance to many Aboriginal people. There is substantial evidence to suggest that law and order issues in Aboriginal communities are in part related to the breakdown of traditional culture.

Sentencing circles have been a way of reducing the adversarial nature of the legal process for those offenders who plead guilty and of providing effective, culturally relevant punishments under the auspices of the mainstream legal system. Similarly, Koori, Nunga and Murri courts have provided an effective halfway point between the mainstream system and Aboriginal traditional practice. The federal government has been helping to fund these initiatives. Why would it do so if it thought they were part of the problem? This legislation is a real reversal in terms of the approach taken, both by Senator Ellison and the government over many years, and it really disappoints me.

As a result of the recently handed down WA Law Reform Commission report, which I note was commissioned by the former Liberal Attorney-General in 2000, the WA government is now considering the recognition of customary law within a human rights framework and the broader Western Australian legal system. When cultural background was inserted into the Commonwealth legislation as a factor if relevant, it was a response to recommendations of the Law Reform Commission which drew heavily on the Royal Commission into Aboriginal Deaths in Custody. As Senator Ludwig pointed out in his contribution, the coalition supported the inclusion of the customary law provision when in opposition in 1994.

The government has not presented a shred of evidence as to why the changes contained in this bill are necessary. It has not indicated at all how these will prevent violence, abuse or contact with the criminal justice system. It has simply used assertions about Aboriginal culture and rhetorical remarks about equality before the law—in appealing to a different constituency, I suppose—rather than trying to tackle the real issues involved in violence and abuse in Indigenous communities.

In fact, in its submission to the Senate inquiry, the Human Rights and Equal Opportunity Commission argued that the legislation is in conflict with every major inquiry into the role of cultural background and customary law in the Australian legal system, including a number of reports of the Australian Law Reform Commission. The Aboriginal and Torres Strait Islander Social Justice Commissioner made the point:

All Australians, regardless of their ethnic background, have cultural values and may engage in cultural practices that may be relevant to sentencing for a criminal offence.

The legislation is based upon the removal of the right of Aboriginal people to have their culture recognised in the same way as other Australians. Far from serving to make all Australians equal before the law, it is fundamentally an attack on Aboriginal culture. As Senator Ludwig pointed out, this legislation is much more about spin than reality.

The relevant offences regarding violence and abuse are largely dealt with under state and territory law, not federal law. As I understand it, the majority of Indigenous offenders charged with Commonwealth offences are charged under the Social Security Act with social security fraud. I have not heard yet of anyone using customary law as a defence against a charge of social security fraud. If they did, this bill will fix it, but that is all it will fix. It will prevent people using customary law as a defence against social security fraud, although I note the government has led no evidence to suggest that that has been used in the past.

As the Indigenous affairs spokesman for the Labor opposition, I am very concerned by the whole framework of this bill—the way it seeks to denigrate Aboriginal culture and the way it seeks to pass over dealing with the causes of violence and abuse in Indigenous communities and the very serious issues involved. The government have taken measures to assist with better policing in Indigenous communities, and I commend them for that. One of the key problems has been the fact that the police have not had the resources or the attitudes to properly deal with complaints or evidence of violence against Aboriginal women and children. But policing is not sufficient in itself to deal with those issues. We need to look at the causes. We need to look at prevention.

Locking more people up after they have committed violence is not a solution. It is a punishment but it is not a solution. Those people will eventually be released and returned to the community. Violence will continue in those communities unless we deal with the causes: the poverty, the alcohol and drug abuse, the unemployment, the housing issues and the hopelessness that exists in many Aboriginal communities. Unless we empower Indigenous people in those communities, we will not attack the fundamental causes of violence against Indigenous women and children.

In a sense, people could say this bill does not really matter—that it is a bit of cover for the government, a bit of spin, a bit of PR, but it will not do anything. And it will not do anything. It will not have any practical effect, as I say, unless people are using customary law as a defence for social security fraud, and no evidence has been led to that effect. But it does send a very clear message to the wider community that somehow Aboriginal culture is wrong, that Aboriginal culture contains elements which encourage paedophilia and violence against women. That is a lie. It is completely wrong. It is a denigration of Aboriginal people and their culture and it needs to be resisted by this parliament.

This takes us down a path which does nothing to improve relations between Indigenous people and the rest of the Australian population and it does nothing to attack the causes of crime and violence in Indigenous communities. In the way that it denigrates Aboriginal customary law and culture, it actually sets us back and acts as a barrier to making progress on these really important issues.

Labor are vehemently opposed to the high levels of violence and abuse that occur in some communities, and we support the government and join with them in seeking to take all measures possible to prevent that, as we would in any other community. As I say, I have supported the policing initiatives as strongly as I can and supported all proper measures to attack these problems, as do Indigenous people. Indigenous people want action from government; they want the protection of the law; they want protection from violence and abuse. There is no argument about that. But what is completely wrong about the government’s approach is that it fails to recognise and deal with the causes and it hides behind these sorts of smokescreens, these hoaxes on the Australian public, that passing a law about customary law as a defence in sentencing is somehow going to make a difference and help. That is a nonsense, it is a fraud and it is a disgrace that this parliament has been used in this way. It is a con trick, it ought to be opposed and it does the government no credit at all.

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

The Crimes Amendment (Bail and Sentencing) Bill 2006 is important and deals with provisions relating to the administration of criminal justice at a national level. It deals with such areas as sentencing, bail and how people are dealt with in relation to alleged criminal behaviour. At the outset I want to make it very clear that the amendments relate to criminal behaviour across the board. They are not specifically designed to target Indigenous offenders. As these amendments are couched, they apply to all Australians, and I think that that must be remembered. Of course the debate in recent times has related to attention which has been focused on the unacceptable levels of Indigenous violence against women and children, and that has been a prime mover for these amendments, but in no way are these amendments related only to Indigenous offenders. They apply across the board, and the government rejects any suggestion of any racial aspect to these amendments.

Before I continue I should acknowledge the work done by the Senate Standing Committee on Legal and Constitutional Affairs. I want to acknowledge the work done in relation to the consideration of this bill. The government has carefully considered the recommendations made by the committee and has addressed the committee’s concerns in recommendation 1 by adopting, in principle, the sentiments expressed in that recommendation. By giving consideration to customary law and cultural practice specifically, the wording as put forward in the government amendments I believe reflects, if not exactly, the first recommendation of the Senate committee. It certainly picks it up in principle. For instance, the committee uses the word ‘enhancing’ and the government amendment replaces that with the word ‘aggravating’, but I think nonetheless the sentiment is there. The government was unable to accept recommendation 2 of the committee on the basis that it might take away the thrust of the message that is intended to be sent out by these amendments. That is something which will come out in the consideration of the amendments which will be moved at the committee stage.

During the debate there was some query as to the reasons for this bill and the two amendments that I have foreshadowed. At the outset the Crimes Amendment (Bail and Sentencing) Bill 2006 is one of the outcomes of the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities and is designed to respond to the issues raised at that summit. In particular, the government is concerned that all Australians are treated equally under the law and wishes to ensure that every Australian is subject to the law’s protection and equally subject to its authority. The bill is intended to confirm that no customary law or cultural practice excuses criminal behaviour, including unlawful violence or sexual abuse, and to ensure that victims and witnesses, particularly those in remote communities, are adequately protected. The bill is designed to remedy those situations in which the consideration of customary law or cultural practice has lead or may lead to inappropriately lenient sentences. The Australian government takes the view that the cultural background of a person should not necessarily be identified as a special consideration in sentencing. More importantly, a claim that criminal conduct was justified by customary law or cultural practice should never be used to avoid full and proper punishment for any offence. The Australian government is taking the lead on this issue and hopes that this bill will act as a model for similar legislative changes in all states and territories.

The question has been asked: what are the examples that can be given of the circumstances that the bill intends to address? Examples of these circumstances include where judges or magistrates have to face arguments in mitigation relying on customary law or cultural practices which are based on a misunderstanding of the customary law, including an incomplete presentation of what customary law entails. As an example, Indigenous leaders in the recent Western Australian Law Reform Commission’s Aboriginal customary laws discussion paper note that because customary law arguments are put forward by male defendants in sexual crimes, the version of customary law is limited to those aspects that suit those male defendants. Another example is based on the lack of understanding of the impact of the crime on the victim, both in terms of physical and emotional impact and in terms of the negative consequences of a finding, express or implied, that what happened to them was acceptable to the community, and hence there is a real sense of isolation rather than victim support.

Another example is a lack of testing that what defendants claim to be customary law is in fact accepted as the case. I think this touches on something Senator Chris Evans raised, which was that this bill presumes that Aboriginal customary law in some way condones paedophilia, the abuse of women or violence. This is not the case. Indeed, the very example that I have cited as what we are attempting to deal with in this bill is the lack of testing of what defendants claim to be customary law. The problem is what people say the customary law is and whether or not that is tested—that has been more the problem that we have faced. Dr Sue Gordon said in a lecture at the recent international convention on crime prevention that there have been three aspects of law: whitefella law, blackfella law and bulldust law. I was very impressed by that argument because I think Dr Gordon hit the nail on the head with that third aspect, in that the interpretation that some people are placing on customary law is part of the issue that we are addressing. And I would suggest that that could even have wider implications than just in relation to the Indigenous community.

Another example of a circumstance that we are intending to address in this bill is the lack of recognition that even if a practice can be shown to be part of the background and cultural environment of a defendant, particularly in communities where violence and abuse are prevalent, such a background does not justify the practice where it is in conflict with the rights of the victim.

I now turn to a number of other issues which have been raised by senators during the second reading debate. One of those issues has been an alleged lack of consultation. I would point to a number of aspects which completely dispel this. Firstly, this bill follows the commitment made by the Commonwealth and all states and territories at the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities on 26 June and at the COAG meeting on 14 July this year. Both of those meetings involved state and territory ministers and, of course, leaders. This commitment is set out in the COAG communique of 14 July 2006:

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.

All jurisdictions are being encouraged to follow the Australian government’s lead on this issue during bilateral negotiations. I might say that bilateral negotiations have already been held with New South Wales, Western Australia, South Australia and the Northern Territory. So I think that quite squarely puts the issue of consultation to rest. I think you can do it no better than with an intergovernmental summit with the relevant ministers, followed by a Council of Australian Governments meeting.

In relation to the application of Commonwealth law, some criticism has been raised today that Commonwealth law does not touch on offences against the person and that these amendments, therefore, will not have much impact on sentencing or dealing with those people charged with offences against the person, such as violence or sexual assault. I put it to the Senate that, if the Commonwealth did not provide leadership on this issue, it would be found to be wanting. It would be negligent of the Commonwealth as the national government of this country not to set an example to the states and territories. Indeed, the Attorney-General will be pursuing this at the Standing Committee of Attorneys-General, which meets tomorrow and the day after in Fremantle. We could only go to such a meeting and implore and beseech the states to follow us if we were doing the same thing ourselves, and that is precisely what this bill is about. It demonstrates leadership in the area that we have constitutional jurisdiction over. Of course, the states and territories have the jurisdiction in relation to those offences against the person I have mentioned, and we will be pushing the states and territories to do more in that regard.

Another criticism has been that cultural background, which is to be taken out of the list of considerations as mentioned in the Crimes Act, will not be available for consideration at all. What we are saying is that by taking out cultural background and leaving in antecedents—which, as I recall, is in the same subsection—we are treating everyone in the same fashion. That is, any person who comes before the court will have their antecedents considered, and those antecedents, by the very definition of them, will include the person’s cultural background. But what we are saying is that you should not place too much emphasis on cultural background to the exclusion of other factors and, in fact, to the extent that justice may be distorted. Of course there will be a variety of cultural backgrounds of the people coming before the courts in Australia. That can well be considered in the antecedents of the individual concerned—and not just an Indigenous cultural background but others, whether from a variety of overseas countries or not.

That needs to be remembered. The question of antecedents has been left there deliberately for that reason, that there will be an overall consideration of the person and that person’s background when they come before the court. It is just that we do not believe that cultural background should be used in a way that could distort the administration of justice.

One of the other criticisms was that this was discriminatory in some form, and there was some suggestion that the Racial Discrimination Act might be a barrier to these proposed amendments. Certainly it is a matter that we have considered carefully, and I am advised that legislation precluding reliance in any form on customary law or cultural practice to justify criminal behaviour is not inconsistent with the Racial Discrimination Act 1975. That is fairly clear and we reject totally that there is any racial discrimination aspect to this proposed legislation.

Senator Chris Evans and other senators raised the issue that in dealing with the Indigenous violence and abuse that has been in the fore of the public mind recently many measures are needed. I am the first to agree with that—housing, education and health are all relevant factors. I would agree that policing on its own is not sufficient. We have to remember that you deal with the problem at hand—that is, where there has been the commission of an offence—by the administration of justice. That includes law enforcement and appropriate punishment. In the long term you have to look at how you can prevent that happening. In my own portfolio I administer the National Community Crime Prevention Program. Since its inception a couple of years ago we have had 22 Indigenous crime prevention projects, which have received average grants of $133,000 per project. These are targeted measures on the ground dealing with crime prevention measures which the community itself believes are the most appropriate to address its problems. That is very much a grassroots approach to crime prevention.

From a policing point of view, I was very pleased early in October to announce the commencement of the Australian Crime Commission’s task force based in Alice Springs but working out of all its offices around Australia. That task force brings together state and territory policing in relation to Indigenous violence. I think that will prove to be a great boost to policing in the Indigenous sector. I want to acknowledge the great work that is being done by the state and territory police in this regard. In that task force there is a combination of state and territory police officers working with the Australian Federal Police and officers of the Australian Crime Commission. This is the first time we have seen a national initiative dealing with such an issue where we look at it with a whole-of-government approach. That has been needed for some time.

In the wider context of dealing with domestic violence issues, the government has provided funding of $23.6 million over four years to extend Indigenous family violence prevention legal services from 26 violence prevention units to 31. That is a significant input in relation to prevention of the problem that we are addressing with this bill.

The passage of this bill will not be the silver bullet, it will not be the panacea and it will not be the total cure for what we need in relation to the Indigenous violence and abuse we have seen, but it is a very important part of the whole-of-government approach to address this issue. In the wider context it deals with issues in sentencing and bail that I think are relevant factors across the board in the administration of criminal justice in this country.

Senator Ludwig mentioned that the opposition is opposed to this bill yet supports our provisions in relation to bail. To then suggest that this bill is in some way premature is inconsistent with that stance. Certainly we are progressing this with the Standing Committee of Attorneys-General, as I said, and we will progress it with COAG. That does not mean that meanwhile the Commonwealth stands still. This bill is about leadership and providing the way forward, and we want to work with the states and territories in addressing these issues. I commend the bill to the Senate.

Question put:

That this bill be now read a second time.