Bills Digest no. 56 2006–07
Crimes Amendment (Bail and Sentencing) Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Amendment (Bail and Sentencing) Bill 2006
The day after the Bill
receives Royal Assent.
The bill amends the sentencing and bail provisions in
the Crimes Act 1914 in accordance with the decisions
made by the Council of Australian Governments (COAG) on 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
COAG also 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.
The COAG meeting followed the recommendations of the
Intergovernmental Summit on Violence and Child Abuse in Indigenous
Communities on 26 June 2006.(2)
This bill passed through the Senate on 8 November 2006 with two
In the second reading speech, it is stated that the amendments
have been linked to the Intergovernmental Summit on Violence and
Child Abuse in Indigenous Communities. The Minister for Families,
Community Services and Indigenous affairs, The Hon Mal
Brough MP, expressed concern at that Summit about the high
level of violence and child abuse in indigenous communities. The
bill is stated to be one element in the Australian Government s
approach to addressing the difficult issues of family violence and
child abuse in Indigenous communities.
When introducing the Bill, Senator McDonald emphasised that
through these amendments the Government is seeking to ensure that
all Australians will be treated equally under Australian law
regardless of their cultural background.
All Australians should be treated equally
under the law. Every Australian may expect to be protected by the
law, and equally every Australian is subject to the law s
Criminal behaviour cannot in any way be
excused, justified, authorised, required or rendered less serious
because of customary law or cultural practice. 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.
Likewise, this bill will preclude any
customary law or cultural practice from being taken into account,
in the process of granting bail to an alleged offender, in such a
way that the criminal behaviour concerned is seen as less culpable.
All Australians, regardless of their background, will thus be equal
before the law .(3)
The bill appears to be designed as a model to encourage the
States and Territories to adopt similar sentencing and bail
State and territory criminal laws cover the vast majority of
conduct that requires the censure of criminal law. State and
territory law is concerned with offences involving personal
violence or violation of property (such as murder, assault and
robbery), public order offences, regulatory offences in areas such
as environmental protection and occupational health and safety, and
traffic offences. However, there are significant areas of overlap
with Commonwealth criminal law concerned with, for example, social
security and tax fraud, illegal drug importation and migration
Paragraph 16A (2)(m) of the Crimes Act 1914 requires
the court to consider the character, antecedents, cultural
background, age, means and physical or mental condition of the
person as one of the factors in sentencing.(4)
Section 19B mentions cultural background as a consideration
relevant to not recording a conviction.
The term cultural background was inserted into section 16A of
the Crimes Act 1914 in 1994, along with a range of
amendments introduced with the Crimes and other Legislation
Amendment Bill 1994 (the COLA Bill).(5) The then
Parliamentary Secretary to the Attorney-General, the Hon. Peter
Duncan MP stated in his second reading speech(6) that
the amendment was being made to implement recommendations of the
Australian Law Reform Commission (ALRC) report Multiculturalism and
the Law regarding sentencing of federal
The amendments were carried with bipartisan support. Mr Peter
Slipper MP, a member of the Coalition opposition stated in his
speech during the second reading of the COLA bill:
the opposition is certainly not opposed to the
inclusion of cultural background as a relevant matter to be taken
into account by the court when sentencing federal offenders. It is
highly likely that, even prior to this amendment, courts in
Australia would have taken into account cultural background. Those
courts would include courts exercising federal jurisdiction
It is important to realise we are one people in
Australia. We are one nation and the laws binding all of us should
be the same. However, given the diversity of the ethnic make-up of
some parts of Australia now, it is obviously appropriate that
cultural background should be included as one of those matters
which courts take into account when sentencing a person after a
person is found to have breached the law.(8)
In 2005, the ALRC released an Issues Paper Sentencing
of Federal Offenders(9) raising a series of
questions about the sentencing and management of offenders
convicted of federal criminal offences. The Issues Paper analysed
the limited data available regarding federal offenders. More than
4,000 persons are convicted of federal offences each year, the bulk
of these being summary social security offences. There are no
available data on the sentencing outcomes for all federal
offenders, but as at 1 September 2006 there were 687 federal
offenders in state and territory prisons.(10) Over time
the number of federal prisoners has generally increased at a rate
that has kept pace with the growth in the total sentenced prison
population. There is wide variation in the number of federal
prisoners by type of offence. The bulk of current federal prisoners
(69%) have been convicted of drug offences. Of the remainder, 12%
were serving prison terms for offences under the Commonwealth
Crimes Act 1914 (including offences such as damaging
Commonwealth property and child sex tourism); financial offences
(7%); illegal fishing (5%); and social security offences
In the recently released ALRC report,
Same Crime, Same Time: sentencing of federal
Appendix 1 provides a statistical overview of federal
prisoners. There is no data collected which shows whether offenders
are indigenous Australians or not. Data is collected on federal
prisoners country of birth or nationality. An extract from the
appendix is shown below.
Country of birth or nationality of Australian
Country of birth
Hong Kong (SAR of
United Kingdom and
China (excludes Hong Kong
SAR & Taiwan)
Source: Federal Prisoners 2004 (AIC file); ABS,
Prisoners in Australia 2004. *ABS data place African countries
except South Africa in other . # ABS data place Middle East
countries except Lebanon in other .
As part of the ALRC inquiry into sentencing of federal
offenders, the ALRC considered the operation of section 16A of the
Crimes Act, and in particular the sentencing of Aboriginal and
Torres Strait Islander (ATSI) offenders. The ALRC s recommendations
in its Same Crime, Same Time report included the following
Cultural background should be considered by a court when
sentencing a federal offender.
Legislation should endorse the practice of considering
traditional law and customs, where relevant, in sentencing an ATSI
The bill was
referred to the Senate Standing Committee on Legal and
Constitutional Affairs on 14 September. The Committee s
report on the bill was tabled on 16 October 2006. The Committee
received 14 written submissions on the bill and held a public
hearing on 29 September 2006.
The report notes a series of criticisms of the bill, including
that the Bill s focus is misdirected , because of 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
The Committee also voiced concerns about 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 .(15)
Finally, the Committee considered 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 .(16)
The Committee made the following recommendations:
3.104 The committee recommends that the Bill be
amended to replace the words 'excusing, justifying, authorising,
requiring or rendering less serious' in proposed paragraph
15AB(1)(b) and proposed subsection 16A(2A) with the words
'mitigating or enhancing the seriousness of' to clarify the scope
of their operation.
3.105 The committee recommends that the Bill be
amended to remove Item 4 so as to retain 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, in paragraph 16A(2)(m) of the Crimes Act 1914.
3.106 Subject to the preceding recommendations,
the committee recommends that the Senate pass the
The majority of written submissions from organisations such as
the Law Council of Australia, the ALRC, National Legal Aid and the
Human Rights and Equal Opportunity Commission expressed concern in
relation to various aspects of the bill and its likely practical
operation. The Committee identified the following key concerns:
lack of consultation with respect to the Bill;
arguments that the Bill is misguided and ill-conceived, and will
do little, if anything, to address violence and child abuse in
Indigenous communities in a practical sense;
the discriminatory nature of the Bill;
arguments that the Bill runs contrary to the findings of major
relevant inquiries in Australia, such as the Royal Commission into
Aboriginal Deaths in Custody;
arguments that the Bill will restrict judicial discretion;
arguments that the Bill undermines important initiatives
involving Indigenous customary law, such as circle
While the bill's proposed
application to sentencing procedures attracted the most criticism,
some submissions and witnesses argued that its application to bail
proceedings could also be problematic.
In particular, at paragraph 3.76 the Committee notes the
argument of National Legal Aid (NLA) that the bill's requirement
for the bail authority to consider the 'potential impact' of
granting bail on victims, witnesses and potential witnesses is very
broad and could be interpreted 'to the point where it might
seriously impede on the presumption of innocence and substantially
increase the remand rate'.(19)
The political impetus for the Summit and the bill originated in
public debate around the sentencing decision in the GJ v R
case involving customary law in the Northern Territory (NT).
In the Supreme Court of the Northern Territory the 55 year-old
defendeant pleaded guilty before Chief Justice Brian Martin to two
offences against a young girl aged 14. The offences involved
unlawful assault and sexual assault on the girl. The maximum
penalty for the first offence was five years imprisonment. For the
second offence it was 16 years imprisonment.The defendant contended
that the complainant had been promised to him as his wife when she
was four years old and that what he did conformed to his culture
The original sentence was handed down in the NT Supreme Court by
Chief Justice Martin on 11 August 2005.(20) It was not
reported because the accused pleaded guilty but there is a
transcript of the sentencing decision reported in the Sydney
Morning Herald on 28 September 2005.(21)
Chief Justice Martin described the case as one involving not
just a clash of laws or of culture [but] a clash of generations
This is an extremely difficult case. You are a
55-year old traditional Aboriginal man. You believed that
traditional law permitted you to strike the child and to have
intercourse with her. On the other hand, the law of the Northern
Territory says that you cannot hit a child. The law of the Northern
Territory also says that you cannot have intercourse with a
Part of the evidence I have heard this morning
concerns your traditional law and how your traditional law views
the rights of a man to whom a young girl has been promised. I
accept that evidence. It gives me a small insight, but only a small
insight, into the traditional law. It is a very complicated area,
which involves far more than a simple question of marriage and
sexual relationships between a younger man and a younger woman. It
goes to the heart of community relationships.(22)
The Chief Justice convicted the applicant and sentenced him to
five months imprisonment on the first count and 19 months
imprisonment on the second count but ordered that the sentence be
suspended upon the applicant s entering into a recognisance in the
sum of $250 to be of good behaviour for two years. Only one month
was actually to be served.
The prosecution appealed. On 22 December 2005, the Court of
Appeal of the Northern Territory allowed the appeal and substituted
a sentence of three years six months imprisonment on the second
count, making a total term of imprisonment of eighteen months which
it ordered be actually served.(23)
The applicant then sought special leave to appeal to the High
Court on the basis that the Court of Appeal erred in the weight it
gave to the traditional beliefs of the applicant and that, in
re-sentencing, it failed to observe the usual principles of
moderation applicable to successful prosecution appeals.
The High Court of Australia dismissed the accused's appeal
against the harsher sentence on 19 May 2006. The transcript for
GJ v The Queen is available at http://www.austlii.edu.au/au/other/HCATrans/2006/252.html
The High Court followed the principle laid down by Justice
Brennan in Neal v The Queen when his Honour said:
The same sentencing principles are to be applied,
of course, in every case, irrespective of the identity of a
particular offender or his membership of an ethnic or other group.
But in imposing sentences courts are bound to take into account, in
accordance with those principles, all material facts including
those facts which exist only by reason of the offender s membership
of an ethnic or other group. So much is essential to the even
administration of criminal justice. That done, however, the weight
to be attributed to the factors material in a particular case,
whether of aggravation or mitigation, is ordinarily a matter for
the court exercising the sentencing discretion of first instance
The issues raised by this particular case have been discussed
extensively in the media. Minister for Health, Tony Abbott stated
in the context of a recent Quadrant article that the Chief Justice
s original sentencing decision in this case had come to symbolise
the triumph of political correctness over justice
Making courts culture free , The Age, 14 July 2006, p.
No quick fix , Australian Policy Online, 1 June
Black law breakdown , National Indigenous Times, v.
5(106), 1 June 2006, pp. 8 10.
Editorial: Customary law is a mitigating factor , 27 May 2006,
The ALRC looked at the issues involved with customary law in
detail in its 1986 report The Recognition of Aboriginal
Customary Laws, Report No 31 (1986) (Summary).
Three State jurisdictions have also looked at the issue in
The laws vary between States and Territories in
relation to the weight accorded to customary law. It can be
referred to either expressly or as one factor in the judge s
general sentencing discretion. For example, the sentencing
guidelines under section 5 of the NT Sentencing Act merely
allow the judge discretion to consider the offender s background in
the context of the seriousness of the offence. Under section 104A,
the process in which the judge receives any information on
customary law is regulated.
Issues around customary law are also affected by Australia s
international obligations. The International Covenant on Civil and
Political Rights (ICCPR), to which Australia is a party, includes
provisions dealing with the criminal justice system. It requires
states parties to ensure that all persons are equal before the law
and are entitled, without discrimination, to the equal protection
of the law.
More specifically, it provides that all persons shall be equal
before the courts and tribunals and that in the determination of
any criminal charge everyone shall be entitled to a fair and public
hearing . It requires states parties to incorporate safeguards
against arbitrary arrest and imprisonment into their
While the norm of equality might be the clear goal of a legal
system, issues of how formal and substantive equality play out in
real-world examples are complex, especially when the issues involve
intersections of race and gender.
The Law Reform Commission NSW report states that Aboriginal
customary law can become relevant within general criminal
proceedings in a number of ways:
Evidence may be submitted in mitigation of
sentence that the offender has already received, or will receive,
traditional punishment. A court could even consider suspension of a
sentence to enable the Aboriginal offender to undergo traditional
Where an offence has been committed in pursuance
of, or as required by, Aboriginal customary laws, these
circumstances may be raised in mitigation of the
offence.41 For example, where a person has carried out a
traditional punishment, such as a payback spearing, he himself may
be charged with assault. These circumstances may also be raised as
a defence to the charge, although this aspect is not relevant to
Evidence that an offence was provoked by the
victim s breach of a customary law will usually have implications
for mitigation of sentence.
Although it may not strictly be a matter of
Aboriginal customary law, evidence of traditional customs or
beliefs may help to explain the defendant s conduct and act in
Evidence of Aboriginal customary law may affect
the exercise of the prosecutorial discretion, vested in both police
and the Crown, as to whether an accused person is charged with an
offence at all, or as to the nature of the offence with which he or
she is charged.
An Aboriginal offender may be subject to customary
law obligations which have some relevance to determining what is an
appropriate sentence. An example can be found in the convicted
person s duty in relation to forthcoming tribal ceremonies.
Less directly, a consideration of Aboriginal
customary law may arise if the offender s Aboriginal community seek
to inform the court of its perceptions of the seriousness of the
crime and its attitude towards the offender. If there is to be
recognition of Aboriginal customary law, the further issue arises
as to whether the community s views should be relevant to the court
See further Chapter 3 of Law Reform Commission NSW, Sentencing:
Aboriginal offenders, Report 96, 2000 which gives a pr cis of
important cases where customary law has been discussed.
The 1986 ALRC report noted a number of arguments in favour of
greater recognition of Aboriginal customary law:
recognition would advance the process of reconciliation
between Aboriginal and non-Aboriginal Territory residents
non-recognition can lead to injustice in specific situations
where traditional law governs a person's conduct
the present legal system has failed to deal effectively with
many Aboriginal disputes and there are disproportionately high
levels of Aboriginal contact with the justice system
traditional authority may be more efficient in maintaining order
with Aboriginal communities, and thus be more cost-effective
courts are recognising Aboriginal customary law within their
discretionary powers, and more formal recognition would clarify the
non-recognition is consistent with principles of
'assimilation' and 'integration', whereas principles of
'self-management' or 'self-determination' are more appropriate
Australia's international standing and reputation would benefit
from its giving recognition to the laws and traditions of its
The ALRC Report identified a number of arguments against
customary law may incorporate rules and punishments that are
unacceptable to the wider Australian society
some aspects of customary law are secret, and disclosure on a
confidential basis is inconsistent with the judicial function
within our legal system
Aboriginal people may lose control over customary law if it were
incorporated within the general legal system
customary law may not adequately protect Aboriginal women
recognition of customary law might create 'two laws' within our
Aboriginal customary law may no longer be relevant to some
Aboriginal people, and some may prefer the present legal system
recognition should be restricted to those Aborigines living in a
strictly traditional manner.(28)
The amendments contained in the bill introduced by the
Commonwealth would limit judicial discretion in sentencing matters.
The constitutionality of this arose in the mandatory sentencing
debate as to whether limiting or completely usurping judicial
discretion in sentencing constitutes an impermissible interference
with the judicial power. This occurs when the legislature vests in
a court capable of exercising the federal judicial power, a power
which is incompatible with the judicial process.(29)
This could mean the amendments could be open to a constitutional
ALP Senators on the Senate committee which examined the bill
produced a dissenting report. The Labor Senators recommend that the
bill not proceed.
Labor Senators note that the overwhelming view
among those who provided evidence to the committee was that the
Bill represents a completely misguided approach to addressing, in
any meaningful way, the endemic problems of violence and child
abuse in Indigenous communities.(30)
During the second reading debate on 8 November in the Senate,
ALP Senator for Queensland Joe Ludwig, a member of the Committee
which had considered the bill was scathing in his assessment:
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.(31)
Senator Chris Evans called the bill 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
One of the things that frightens 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.(32) [Just as an
aside, if the Senator is correct, it would seem that, on the basis
on the excerpt from Justice Martin s statement, that GJ was wrong
about his understanding of traditional law].
Senator Andrew Bartlett stated in the second reading debate on 8
November that the bill was a disgrace , racially discriminatory in
its effect if not its intent, and a con . He referenced the
Parliamentary debate around the Crimes Act cultural background
amendment in 1994:
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 one
group of people s cultural background, which is automatically
infused in the way the law is interpreted, has precedence of
everybody else s. This action will consciously take away the
requirement to give automatic consideration.(33)
The Australian Greens in the Senate voted against the bill.
The Family First Senator, Steven Fielding voted for the
There are no financial implications from the provisions in the
bill. However, the Minister for Families, Community Services and
Indigenous affairs, The Hon Mal Brough MP has
indicated that state and territory funding for indigenous programs
will be linked to states and territories amending their laws so as
to remove cultural background from mandatory consideration when
The funding linkage has been opposed by ACT Chief Minister, Jon
Stanhope and the WA Attorney-General.(34)
Schedule 1 Amendment of the Crimes Act
Item 1 inserts a definition of bail authority
into subsection 3(1) of the Crimes Act. Section 3 of the Crimes Act
is the interpretation section.
The inserted definition states that bail authority means a court
or person authorised to grant bail under a law of the Commonwealth,
a State or a Territory. This definition is the same as the
definition which is currently in the Crimes Act at subsection
15AA(5). The Explanatory Memorandum states that the definition is
being moved to the general interpretation section because it will
not just be used in section 15AA.(35)
Item 2 repeals the existing definition of bail
authority from subsection 15AA(5).
Item 3 inserts new section
15AB which is headed Matters to be considered in
certain bail applications into the Crimes Act. It requires
a bail authority, when considering granting bail or imposing bail
conditions on alleged offenders in relation to federal offences, to
consider the potential impact of the bail authority s actions on
victims and potential witnesses. The Explanatory Memorandum states
that this amendment gives primacy in the bail process to the
protection of victims and potential witnesses, and will ensure that
a bail authority takes the interest of such persons into account in
cases that fall within the scope of the new section 15AB.
New section 15AB also requires that where
victims and potential witnesses are living in or located in a
remote community, the bail authority must take this into account
when considering granting bail. The Explanatory Memorandum explains
that this is because remote communities are typically small and
isolated, and victims and potential witnesses in such communities
face higher risks than others when alleged offenders are released
into their communities on bail. The purpose of the amendment is to
ensure that bail authorities give appropriate weight to the special
circumstances of victims and potential witnesses in remote
Remote community is not a defined term. The Explanatory
Memorandum states that it will be a matter for the bail authority
to determine on the facts of the case whether an alleged victim or
potential witness is located in a remote
New subsection 15AB(1)(b) prohibits a bail
authority from taking into account any form of customary law or
cultural practice when considering whether to grant bail to an
alleged offender. According to the Explanatory Memorandum, this
amendment 'helps establish the principle that neither customary law
nor cultural practice can be used to mitigate an alleged offender's
criminal behaviour and on that basis allow an alleged offender to
be granted bail'.(38)
The Senate Committee found that the inclusion of the words
'rendering less serious' in proposed paragraph 15AB(1)(b) and
proposed subsection 16A(2A) effectively means 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. The committee considers this to be undesirable and
recommends that these provisions be amended to prevent this
outcome. The committee also recommends that these provisions be
amended to clarify the scope of their operation.(39)
amendments were passed by the Senate on 8 November 2006 which
change this item:
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.
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.(40)
Item 4 omits the term cultural background from
paragraph 16A(2)(m) of the Crimes Act. The effect of the amendment
will be that it will no longer be mandatory for a court to consider
a person s cultural background when passing sentence on that person
for committing a federal offence. The term antecedents remains in
the section however. It is not clear whether this term would still
encompass the cultural background of the offender.
The Explanatory Memorandum states that subject to the change
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. However, the amendment
removes an unnecessary emphasis on the cultural background of
convicted offenders. (41)
Item 5 inserts new subsections
16A(2A) and (2B) into the Crimes Act. New
subsection 16A (2A) expressly prohibits a court from accepting a
customary law or cultural practice as an excuse or justification
when sentencing a person for having committed a federal
The Explanatory Memorandum explains that item 5 enacts COAG s
decision, made on 14 July 2006 that no customary law or practice
can provide a reason for excusing, justifying, authorising,
requiring or rendering less serious the criminal behaviour to which
the offence relates. (42)
In other words, item 4 allows (rather than requires) judicial
discretion on the question of cultural background in considering a
sentence, but item 5 forbids judges from saying that customary
law/practice makes an action less serious (and thus presumably
warrants a lighter sentence). It is difficult to predict how these
two provisions will work together in practice.
This item has also been amended in the Senate as per item 3
Item 6 discusses the application of amendments.
Items 1 to 3 will apply, immediately upon this Act s commencement,
to persons who have already committed offences but who have not yet
been granted bail.
Items 4 and 5, which relate to sentencing, will
apply from the day after Royal Assent is received, though only in
relation to offences committed after the commencement of this
The Commonwealth Parliament does not have a general power to
legislate with respect to criminal law in a manner which would bind
the States and Territories. Most criminal offences are offences
against State or Territory law and are investigated and prosecuted
by State or Territory authorities.
In addition, most prosecutions for Commonwealth criminal
offences are conducted in State and Territory courts, using the
criminal procedures of that jurisdiction. For both federal and
State or Territory offenders, determinations of bail are made
according to the law of the State or Territory in which the person
is arrested. Criminal trials are conducted according to State or
Territory law and procedures (including rules of evidence).
The changes wrought by this bill will not affect Indigenous
offenders such as in the case of GJ v R, as the data in
the Background section of this Digest attests. A key objection from
submission to the Senate inquiry to this bill was that:
The bill is not based on, or supported by
evidenced research. It is in conflict with every major inquiry into
the role of cultural background and customary law in the Australian
The Commonwealth can, however, bind itself. The bill is clearly
framed by the Government as an attempt to provide leadership and
set an example to the States in the context of ongoing
negotiations. As Senator Ellis explained:
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
This amendment is designed as a model, and its principal purpose
is to form part of Commonwealth s effort to get the States and
Territories to adopt the Commonwealth position.
The question Parliamentarians may wish to consider, therefore,
is whether the model or example set by this bill is appropriate.
The amendments made by the bill apply to all Australians, those of
indigenous and other multicultural backgrounds. Tom Calma, 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
1. COAG Communiqu , 14 July 2006,
2. Crimes Amendment (Bail and
Sentencing) Bill 2006. Explanatory Memorandum, p. 1.
3. The Hon. Sandy Macdonald,
Parliamentary Secretary to the Minister for Defence, Second Reading
Speech, Senate Debates, 14 September 2006, p. 9. See also
Attorney-General s Department. Submission no. 11A to Senate
4. See further: Simon Bronitt and
Kumaralingam Amirthalingam, Cultural blindness:
Criminal law in multicultural Australia , Alternative Law
Journal, (1996), April, p. 56.
5. For a more detailed discussion
see Law Council of Australia submission to COAG meeting on 14 July
2006 Recognition of Cultural Factors in Sentencing [ Download
6. Peter Duncan MP,
Second Reading Speech: Crimes and Other Legislation Bill 1994 ,
House of Representatives, Debates, 17 November 1994.
7. Australian Law Reform
Commission 1992, Multiculturalism and the Law, Report
No. 57, Australian Law Reform Commission, Sydney.
8. Peter Slipper MP, Second
Reading Speech: Crimes and Other Legislation Bill 1994 , House of
Representatives, Debates, 17 November 1994.
9. Australian Law Reform
paper 29: Sentencing of Federal Offenders , (2005).
10. Attorney General s Department. Submission 11 A to
11. Australian Institute of Criminology. Crime facts
Information no. 92: Sentencing and administration of federal
offenders , 1 March 2005 http://www.aic.gov.au/publications/cfi/cfi092.html
accessed 18 Oct 2006.
12. Australian Law Reform Commission.
Same crime, same time: sentencing of federal offenders , ALRC
13. See further Alfred Allan, Maria M Allan, Margaret
Giles and Deirdre Drake, The
relationship between bail decision-making and legal representation
within the criminal justice system , A research project jointly
sponsored by Edith Cowan University and the Western Australian
Department of Justice, Perth, January 2003.
14. Senate Standing Committee on Legal and Constitutional
Affairs. Crimes Amendment (Bail and Sentencing) Bill 2006. [Report]
October 2006 p. 30.
15. op. cit., p. ix.
16. ibid., p. 31.
17. ibid., p.
18. ibid., p. 9.
19. ibid., p. 26.
20. The Queen and GJ (Sentence) SCC
20418849 Transcript of proceedings at Yarralin on Thursday 11
21. Chief Justice Brian Martin's sentencing remarks ,
Sydney Morning Herald, 28 September 2005.
22. op. cit.
23. The Queen v GJ  NTCCA 20
24. (1982) 149 CLR 305 at 326.
25. Tony Abbott,
'Paternalism reconsidered , Quadrant, vol. 50(9)
September 2006, pp. 30 34 at p. 31.
26. Article 9, ICCPR.
27. NSW Law Reform Commission, Sentencing:
Aboriginal offenders, Report 96, 2000, Chapter 3, para.
28. ALRC, The Recognition of Aboriginal Customary
Laws, Report No 31 (1986) (Summary).
29. See further D. Manderson and N. Sharp,
Mandatory sentences and the Constitution: discretion,
responsibility and the judicial process, Sydney Law
Review (vol 22 no.4), 2000.
30. Dissenting Report by the Australian Labor Party,
Senate Standing Committee on Legal and Constitutional Affairs.
Crimes Amendment (Bail and Sentencing) Bill 2006. [Report]
October 2006 p. 35.
31. Senate, Consideration in detail, Main Committee,
Debates, 2 November 2006, p. 1.
32. op. cit., p. 7.
33. ibid., p. 4.
34. See further Ross Peake Stanhope to defy Brough on law
, Canberra Times, 10 July 2006, p. 3 and Alana
State stands firm as controversy rages , The
Australian, 16 June 2006, p. 24.
35. Senate Standing Committee on Legal and Constitutional
Affairs. Crimes Amendment (Bail and Sentencing) Bill 2006. [Report]
October 2006, p. 5.
36. Explanatory Memorandum pp. 2 3.
37. ibid., p. 3.
38. ibid., p. 3.
39. Senate Standing Committee on Legal and Constitutional
Affairs. Crimes Amendment (Bail and Sentencing) Bill 2006 Report,
October 2006, p. 5.
40. Crimes Amendment (Bail and Sentencing) Bill 2006,
Senate Journals, No. 116(3), 8 November
2006, p. 3019.
41. ibid p. 3.
42. ibid p. 3.
43. Senator Chris Ellison, Debates, Senate, 8
November 2006, p. 10.
44. See Opinion: Knee-jerk response will create injustice
for Aboriginal defendants , Sydney Morning Herald, 3
October 2006, p. 13.
Catherine Lorimer and Sue Harris Rimmer
27 November 2006
Bills Digest Service
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