Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The committee is considering the Northern Territory National Emergency Response Bill 2007. The question is that part 5 stand as printed.

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

I thank Senator Bartlett for his question. Before I provide an answer on the appeal process for the use of these powers, I should once again reiterate the circumstances around the powers. These are reserve powers and they are intended to ensure the swift and smooth implementation of reform measures. They will be used only when negotiations to introduce these changes have been unsuccessful. The principle reason that we require these powers is that having a range of these sorts of powers is going to ensure that the Australian government has the necessary authority to implement the intended scope of improvements in prescribed communities. We have not just said, ‘We’re going to give ourselves some more powers.’ These are reserve powers but, if we cannot get service delivery into the communities and important infrastructure improvements, the full scope of measures that we know are absolutely essential to achieving the outcomes that the children and families in these communities deserve may not be able to be implemented. In terms of the appeal process, the normal appeal process through the courts would apply.

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

I do not want to prolong debate on this particular measure, but I do think a point needs to be made. You can use a term like ‘reserve powers’ all you like, but you will be given the powers and there will then be minimal constraints on how they are exercised. You can decide for yourself whether or not an incident warrants the use of reserve powers—to adhere to the minister’s own language. I know we are calling this an emergency—and in one context I accept and agree with that terminology being used—but I do not accept and do not agree with some of the analogies that are often used, saying it is akin to a cyclone et cetera. This is a very different circumstance. Everything has not been wiped out or cut back to the ground. There are organisations in place. Many of them are underresourced but there are people there, there is expertise there and there is leadership there.

I appreciate that the minister is saying that the government will only use these powers as a last resort if they cannot get agreement. But you will have those powers in your back pocket all the way along. So, if not reaching agreement means not getting your own way, as soon as you are not getting your own way you will pull the reserve powers out of your back pocket. That is human nature. That is why parliaments guard against these sorts of things. If you know you have the ultimate trump card in your back pocket, no matter what the situation, you have the total power. Sometimes people will be able to resist just using the trump card and will be able to operate effectively, but at other times they will not be able to. They will get impatient, they will get passionate and, with the best of intentions, they will use that trump card.

The reason that this is a serious concern goes not just to the principle but also to the practical consequences. Again, from the Democrats’ point of view, our interest is in evidence on what is going to work and what is not. When you believe you have all the answers, it is very easy to say: ‘Give us all the power. We know what needs to be done. This will work.’ But those of us who do not have such universal faith in the complete all-knowing wisdom and ability of government officials and government ministers of any political persuasion—frankly, I do not have that much faith in human beings at all to give anybody that sort of absolute power—want to look at other evidence. We have plenty of evidence within Australia, let alone elsewhere, that even people who have the absolute best intentions, if given absolute control over other people’s lives, make some serious mistakes. And, because they have that much power, the mistakes can have very serious consequences.

So to say, ‘It’s okay; you can go to a court,’ (a) ignores the obvious reality that the court process is not accessible for many people in this sort of context and is a completely unrealistic option; and (b) and ignores the fact that the courts can still only interpret the law and, if the law gives you absolute power, all the courts can say is, ‘You’ve got absolute power.’ The court option has become fairly meaningless anyway, as we have seen in other areas, such as the Migration Act—which I would have spoken to if I had been speaking to government documents. The framing of the law in the way that gives absolute power means that the courts are basically cut out of all but the narrowest scope for review. There is no meaningful merits review at all. It may be all right if you had a whole bunch of people teetering on the edge of a cliff and you had to do something to stop them sliding over the cliff in the next minute, but, when you are talking about prolonged implementation of a range of measures relating to organisational decisions, implementation of infrastructure and all that sort of thing, the practical intent of the government’s approach is: ‘We are the only ones who know best; we need all the power at the end of the day.’

If you can show me anywhere in the world where that approach has worked in any context I would like to see it. That is a classical definition of authoritarianism. Again, for a government that claims to have even a shred of liberalism in its philosophy, it is extraordinary—not just because of the philosophical debate but also because we know it does not work. Long term it does not work. You might be getting lots done now, because you can do it, but long term it does not work. Governments the world over like to say, ‘We need more powers so that we can do things swiftly and smoothly.’ Of course you can do things swiftly and smoothly if nobody else can get in your way, but that does not mean you are going to do the right things swiftly and smoothly. That is why we have these sorts of checks and balances and protections.

Ursula Stephens (NSW, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition (Social and Community Affairs)) Share this | Link to this | Hansard source

Minister, in relation to the powers and your capacity to draw on those powers, could you advise the extent to which those powers can be delegated and whether or not the use of those reserve powers is required to be reported in any way?

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

I am advised that delegation of these powers will only be at a very senior level within the Australian Public Service or be solely by the minister.

Ursula Stephens (NSW, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition (Social and Community Affairs)) Share this | Link to this | Hansard source

The second part of my question was about reporting the use of those reserve powers.

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

A further clarification of your first question: for external managers, it cannot be delegated. I would imagine that, when the government reports plans—both six monthly and 12 monthly—it would be a part of that process. I will take that aspect on notice and get back to you very shortly.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that part 5 stand as printed.

Question agreed to.

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

The Australian Democrats oppose clauses 90 and 91 in the following terms:

(6)    Clause 90, page 68 (lines 2 to 32), TO BE OPPOSED.

(7)    Clause 91, page 69 (lines 1 to 11), TO BE OPPOSED.

These clauses relate to customary law. When the issue has been presented in a very shallow way, it can seem quite appealing, but when you look at the substance of the issue it is a very serious problem. These two clauses basically prevent a bail authority or a court from having any regard to customary law or cultural practices when considering bail applications or sentencing—so Aboriginal people in the Northern Territory are prevented from having customary law or cultural practices taken into account when bail applications or sentencing occurs. We had this debate with regard to a piece of legislation, I think it was last year, to amend the Crimes Act. It was opposed by the Democrats and I am fairly sure it was opposed by the Greens—if not, I am sure I will be corrected. I am also fairly sure that it was opposed by Labor—and I am sure they will correct me if I am wrong. It was opposed because it was unjust and discriminatory, and there was no evidence that it was necessary.

One or two examples of what would appear to be unreasonable sentencing have been pointed to over the years—where a judge had given undue weight to what was presented as a cultural practice. Decisions such as these are usually overturned on appeal to a higher court, which is the court process doing its job; however, we could all point to sentencing decisions made in courts all around the country where the sentence did not seem adequate, where it was either too extreme or too lenient or where issues were taken into account such that people thought that undue weight had been given to other issues.

These clauses mean that Aboriginal people in the Northern Territory are the only ones in the country who cannot have their cultural practices taken into account. I can have my cultural practice taken into account if I ever end up being sentenced—fortunately, my cultural practices are rather more embedded in the assumptions that are usually taken into account by courts, not that I am planning to be before one! The practical consequence is that cultural practices are not able to be taken into account, and this is a specific intent which produces a discriminatory result.

It also means a weakening of the tradition of customary law and cultural practice. Again I would point to commentary by Indigenous people, including those who have in the broad supported the government’s actions here but have said that it is crucial that Aboriginal culture be strengthened through this intervention process because that is an essential part of this process. The intervention will not work in the long term unless Aboriginal culture and norms are strengthened, not weakened. These two clauses clearly weaken Aboriginal culture by dismissing it as a factor even deserving of acknowledgement. That, I would argue, is counterproductive. These clauses implement the government’s ideological agenda, which was already in place anyway, and the government is using them as an excuse.

This is about sentencing and bail, so it will not in any way prevent child abuse in the short term. One can argue about whether the lengths of sentences may or may not have a longer term impact on reducing child abuse. One could have not just a philosophical debate but, more importantly, an evidence based debate about what works and what does not in reducing recidivism in child abuse offenders. For that reason, I would ask the minister a question in this section which I think is relevant to these items. I have made the case about why these clauses should be removed but the other point I would make—because I do recognise that the court process does have a role, whether it be bail or sentencing—is that I simply do not believe that cultural practices should be excluded from things that can be taken into account.

The other point that has to be made is that there is a lot more to it than that. One question I would ask the minister, because it does link to this topic, is about the resources and the plans that are being developed for the rehabilitation of offenders. I am not saying they should not be locked up; I am asking what programs are being funded to rehabilitate the offenders, whether they be child sex offenders or others, for that matter. I appreciate that is a very difficult area but, amongst the many people I have spoken to about this issue in the last month or so, some have pointed me to what appear to be very successful programs with indigenous peoples in Canada. They work on a range of processes to reduce the risk of people reoffending, whether they are child sex offenders or perpetrators of other acts of violence. So that is an important part of achieving long-term success in this area. Eventually, no matter how long you lock people up for—whether or not it is as a consequence of these sections going through—eventually most of them come out at the end of it and they are likely to go back into the communities. We need to have programs in place not just for offenders but also for communities to help them to deal with people after they have been released.

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

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

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

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

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

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

The law’s response to family and community violence and sexual abuse must reflect the seriousness of such crimes. COAG agreed that no customary law or cultural practice excuses, justifies, authorises, requires, or lessens the seriousness of violence or sexual abuse. All jurisdictions agree that their laws will reflect this, if necessary by future amendment.

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

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

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

I want to throw one more question on the table for the minister. He will probably have all night to cogitate on it, because we have to finish up soon. I will not respond at length to Senator Evans; it is a complex area. The rate of imprisonment for Indigenous people is an absolute scandal, but, unlike others, I do not pretend to have all the answers to that. I think it is an incredibly difficult issue to deal with, particularly when you are talking about the rate for young Indigenous people. It is absolutely extraordinary. I think it is over 25 per cent, which is just horrendous. As Senator Evans said, the percentage of women in prison who are Indigenous is, I think, over 50 per cent in some states, which is mind-blowing. It goes far beyond what the government could hope to achieve through these amendments. But I do not think that taking out the scope for cultural practices to be taken into account in sentencing is going to help reduce that problem. I think it is quite a separate issue, frankly.

As was pointed out last year when we had this debate, and in terms of the amendments to the Crimes Act, the amendments and the resolution that Senator Evans read out regarding the COAG agreement talked about making amendments to the law if necessary. The key point that needs to be emphasised is that customary law does not excuse child sexual assault. So, if you are talking about sentencing for a child sexual assault offence, customary law is not going to be relevant as a mitigating factor anyway if it is properly put forward and considered by a court. I concede that, on rare occasions, it has not been properly considered but, as far as I know, that has always been remedied via an appeal process. That is why I think it is an area where, on face value, it may make some sense, but on closer examination it does not; it is actually discriminatory and unhelpful. Those are precisely the sorts of points that have been made by many of the Law Reform Commission reports and the like that have looked at this sort of area, and none of them has recommended going down this path. All of them have seen the equity. This is not a special measures treatment; this is an equity treatment—that cultural practices for Indigenous people should be considered.

I know the minister was fairly disparaging about the recommendations of the Little children are sacred report, but there are four recommendations in there that go to offender rehabilitation. Is the government going to take any of those into account? What else is it doing with regard to offender rehabilitation? With regard to this wider issue, given that it is an issue for the long haul, what else is the government planning to do with regard to some of the other activities that have been tried in various states? I will not go through them all now; I do not have the time. In Queensland we have things like the Murri Court, which seek to involve elders and others in the sentencing process and in the rehabilitation process. Is any consideration being given at this stage to those sorts of things? Obviously we are talking about reducing child sexual assault and other violence, and those sorts of things have to be part of the package. One of the problems, certainly at state level—and I presume in the territories—is resourcing, apart from anything else.

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

In the short time that I have left I thought I would try to answer the last question briefly. I have some information with regard to rehabilitation. As part of the law and order summit, we provided $15.9 million for rehabilitation. That rehabilitation was in the context of substance abuse and sexual offenders. We are working on a number of initiatives that will have to be in place, but those initiatives have not yet been completed. As you can imagine, it is a very complex area. But, initially, the $15.9 million has been provided.

In the very short time that I have left, I would have to say that there seems to be some confusion with regard to how you see these amendments. These amendments do not prevent customary law or cultural practice from ever being taken into account in bail and sentencing decisions. They reflect absolutely—they are in parallel to—the changes we made to the Commonwealth Crimes Act.

Progress reported.