Chapter 2
Matters not dealt with by the
committee's 2013 report
2.1
This chapter considers three Stronger Futures measures that raise
human rights issues which were not considered in the committee's 2013 report:[1]
-
customary law in bail and sentencing decisions;
-
food security; and
-
land reform.
Customary law in bail and sentencing decisions
2.2
The Northern Territory National Emergency
Response Act 2007 (NTNER Act) amended the Crimes Act 1914 to
provide that, in all bail applications or sentencing under NT law, a court or
bail authority must not take into consideration any form of customary law or
cultural practice as a reason for excusing, justifying, authorising, requiring
or lessening the seriousness of alleged criminal behaviour, or aggravating the
seriousness of it.[2]
2.3
The Stronger Futures legislation amended the Crimes
Act 1914 to provide that customary law and cultural practices must not be
taken into consideration unless the bail or sentencing decision relates to
offences against laws that protect cultural heritage, including sacred sites or
cultural heritage objects.[3]
2.4
The committee's analysis is confined to the
amendments made by the Stronger Futures legislation. However, the committee
notes the broader human rights concerns around the exclusion of customary law
considerations raised in submissions to this inquiry, which are outlined
briefly below.
2007 amendments
2.5
In 2009 the Supreme Court of the NT considered
the application of the NTNER Act provisions relating to customary law
considerations in bail and sentencing decisions.[4]
It held that their effect was that, while evidence about customary law and
cultural practices cannot be considered for determining the objective
seriousness of the crimes alleged, it could be considered to:
-
provide a context and explanation for the
offender's crimes;
-
establish the offender does not have a
predisposition to engage in the specified crime and it is unlikely the offender
will re-offend;
-
establish the offender has good prospects of
being rehabilitated; and
-
establish the defendant's character.
2.6
The court held that '[t]he purpose and operation
of [these provisions] is not to remove all consideration of customary law and
cultural practice from the sentencing process'.[5]
However, the court also noted that the provision:
...might be considered unreasonable or
undesirable because it precludes a sentencing court from taking into account
information highly relevant to determining the true gravity of an offence and
the moral culpability of the offender, precludes an Aboriginal offender who has
acted in accordance with traditional Aboriginal law or cultural practice from
having his or [her] case considered individually on the basis of all relevant
facts which may be applicable to an important aspect of the sentencing process,
distorts [the] well-established sentencing principle of proportionality, and
may result in the imposition of what may be considered to be disproportionate
sentences.[6]
2.7
The submission of the Law Society of New South
Wales to the present inquiry endorses the submission of the National Aboriginal
and Torres Strait Islander Legal Services to a 2012 inquiry, which, while
supportive of the Stronger Futures legislation, stated that the measures
precluding consideration of customary law or cultural practices runs counter to
the principle of equality.[7]
2.8
Similarly, the submission of the Aboriginal Peak
Organisations Northern Territory (APO NT) to the present review welcomed the
changes introduced by the Stronger Futures legislation, but considered that
sections 15AB and 16A of the Crimes Act 1914 should have been wholly
repealed as they devalue Aboriginal culture and customs and result in unjust
outcomes for Aboriginal people.[8]
2.9
A review of the measures was conducted by the
Attorney-General's department in 2009. The review noted numerous concerns about
the amendments raised by stakeholders and in the academic literature, but
recommended that the amendments be retained as there was not enough evidence
available about the impact of the amendments at the time of the review to
demonstrate that the amendments were having unintended negative consequences.[9]
2.10
The committee considers that the prohibition on
considering customary law for aspects of sentencing and bail decisions engages
the right to a fair trial and the right to equality and non-discrimination.
Right to a fair
trial and fair hearing rights
2.11
The right to a fair trial and fair hearing are
protected by article 14 of the International Covenant on Civil and Political
Rights (ICCPR). The right applies to both criminal and civil proceedings, to
cases before both courts and tribunals and to military disciplinary hearings.
The right is concerned with procedural fairness, and encompasses notions of
equality in proceedings, the right to a public hearing and the requirement that
hearings are conducted by an independent and impartial body. Circumstances
which engage the right to a fair trial and fair hearing may also engage other
rights in relation to legal proceedings contained in article 14, such as the
presumption of innocence and minimum guarantees in criminal proceedings.
Right to equality
and non-discrimination
2.12
The right to equality and non-discrimination is
protected by articles 2 and 26 of the ICCPR.
2.13
This is a fundamental human right that is
essential to the protection and respect of all human rights. It provides that
everyone is entitled to enjoy their rights without discrimination of any kind,
and that all people are equal before the law and entitled without
discrimination to the equal and non-discriminatory protection of the law.
2.14
The ICCPR defines 'discrimination' as a
distinction based on a personal attribute (for example, race, sex or religion),[10] which has either the
purpose (called 'direct' discrimination), or the effect (called 'indirect'
discrimination), of adversely affecting human rights.[11] The UN Human Rights
Committee has explained indirect discrimination as 'a rule or measure that is
neutral on its face or without intent to discriminate', which exclusively or
disproportionately affects people with a particular personal attribute.[12]
2.15
Articles 1, 2, 4 and 5 of the Convention on the
Elimination of All Forms of Racial Discrimination (CERD) further describes the
content of these rights and the specific elements that state parties are
required to take into account to ensure the elimination of discrimination on
the basis of race, colour, descent, national or ethnic origin.
Compatibility of
the Stronger Futures measure with the right to a fair trial and the right to
equality and non-discrimination
2.16
The Hon Jenny Macklin MP, former Minister for
Families, Housing, Community Services and Indigenous Affairs (former minister) provided
the committee with her assessment of the human rights compatibility of the
customary law measures in the Stronger Futures legislation.[13] In that assessment the former
minister stated that the policy objective for the measure was to 'enable
customary law and cultural practice to be considered in bail and sentencing for
certain offences against Commonwealth and NT law that protect cultural
heritage, including sacred sites or cultural heritage objects.' The former minister
noted that the Stronger Futures measures were intended to tailor the effects of
the original NTNER Act amendments as these had 'produced unintended effects in
some instances' regarding cultural heritage.
2.17
The former minister also noted that the measures
were not discriminatory as they applied to all people and all cultural
backgrounds, and that, where the prohibition was removed by the measure, it
left the question of how customary law would be considered to the discretion of
the court.
2.18
The committee wrote to the current minister in
June 2015 requesting an updated assessment of the human rights compatibility of
the Stronger Futures measures.[14]
In relation to the general prohibition on considering customary law in bail and
sentencing for federal and NT offences, the committee sought an assessment of
the compatibility of the prohibition with the right to a fair trial, the right
to freedom from arbitrary detention and the right to equality and non‑discrimination.
2.19
In concluding that the prohibition was
compatible with the right to a fair trial, the current minister stated:
The relevant provisions of the Crimes Act do
not place limitations on any of the procedural guarantees set out in Article
14. Further, there is no international jurisprudence suggesting that the right
to a fair trial includes a right to be tried under customary law, or the right
to have customary law taken into account. In fact, trial by customary law would
be incompatible with the ICCPR to any extent that it was inconsistent with the
requirements of Article 14.[15]
2.20
In relation to the right to freedom from
arbitrary detention, the current minister's response stated:
The Crimes Act provisions create a general
exclusion on the consideration of customary law and cultural factors. This
ensures and promotes certainty and predictability in criminal trials, and
should not result in a person being unjustly or inappropriately detained.
While section 15AB (3A) of the Crimes Act
creates an exception to the rule against considering 'any form of customary law
or cultural practice', the exception is narrowly confined to a small range of
Acts for the purposes of protecting cultural heritage, an obligation incumbent
upon Australia under Article 27 of the ICCPR and Article 15 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR), as well as the Convention
for the Elimination of All Forms of Racial Discrimination (CERD).[16]
2.21
In relation to the right to equality and
non-discrimination, the current minister's response stated:
The prohibitions excluding consideration of
customary law in bail and sentencing decisions in the Crimes Act are universal
and apply throughout Australia to all people and all cultural backgrounds. They
ensure that all persons are subject to the same legal rules, except in a limited
range of circumstances.
Those limited circumstances allow for the
consideration of customary law in relation to bail and sentencing decisions for
offences under a small number of Acts protecting cultural heritage. Under
international human rights law, differential treatment such as this will not constitute
discrimination if the differentiation is reasonable and objective and the aim
is to achieve a legitimate purpose.
The exceptions for offences relating to the
protection of cultural heritage recognise customary law or cultural practice in
domestic law for the legitimate purpose of preservation of minority culture and
ensure relevant cultural practice can be taken into account in relation to bail
and sentencing decisions for offences which relate to practices that are
inherently cultural. They ensure the adequate development and protection of
Indigenous peoples in Australia, as required under Article 2(2) of the CERD,
and protect cultural rights under Article 27 of the ICCPR and Article 15
of the ICESCR.[17]
2.22
The committee thanks the current minister for
his response, and considers that the amendments to the customary law
prohibition made by the Stronger Futures measures are likely to be compatible
with the right to a fair trial, the right to freedom from arbitrary detention
and the right to equality and non-discrimination.
2.23
However, the committee notes that the
prohibition on consideration of customary law introduced by the NTNER Act
engages and limits a number of human rights, including the right to a fair
hearing and the right to equality and non‑discrimination. This is because
the prohibition constrains the ability of courts to exercise their discretion
to consider all relevant matters when making bail and sentencing decisions
relating to people from culturally diverse backgrounds, including Indigenous
people. As the prohibition in the NT extends to all offences, the committee
considers that Indigenous people are disproportionately affected by the
prohibition, despite the current ministers' assurances that the measures apply
universally.
2.24
While the committee considers that the NTNER Act
amendments raise human rights concerns, the Stronger Futures measures, by
providing an exception to the prohibition imposed by the NTNER Act, improve the
compatibility of the measure with the right to a fair trial and the right to
equality and non-discrimination.[18]
2.25
The committee considers that the
amendments relating to customary law in the Stronger Futures legislation are
likely to be compatible with the right to a fair trial and the right to
equality and non-discrimination.
2.26
Noting the broader concerns raised in relation
to the reduced scope for consideration of customary law in bail and sentencing
decisions for Commonwealth and NT offences, the committee recommends that a
review be undertaken into the operation of these provisions, with specific
emphasis on the impact of the prohibition on the right to a fair trial and the
right to equality and non‑discrimination.
Food security
2.27
The NTNER measures of 2007 created the legislative framework for
community stores in prescribed communities to be licensed.
2.28
The 2012 Stronger Futures measures renewed the scheme for a further ten
years (until July 2022). A community store is often the primary source of food
and other goods in remote communities, and the intention behind licensing was
to enhance the contribution of community stores to achieve access to a range of
reasonably priced and healthy grocery items. Food security is defined in the
legislation as meaning there is a reasonable ongoing level of access to a range
of food, drink and grocery items that is reasonably priced, safe and of
sufficient quantity and quality to meet nutritional and related household
needs.[19]
2.29
The licensing scheme provides for licensing procedures, license
conditions, business registration requirements, assessment criteria for stores
and a penalty scheme for breaches of licenses, including fines, injunctions and
withdrawal of a license in some circumstances.
2.30
The licensing scheme appears to engage the right to an adequate standard
of living, including the right to food.
Right to an adequate standard of
living
2.31
The right to an adequate standard of living requires that the state take
steps to ensure the availability, adequacy and accessibility of food, clothing,
water and housing for all people in Australia.
2.32
Australia has two types of obligations in relation to this right. It has
immediate obligations: to satisfy certain minimum aspects of the right; not to
unjustifiably take any backwards steps that might affect living standards; and
to ensure the right is made available in a non-discriminatory way. It also has
an obligation to take reasonable measures within its available resources to
progressively secure broader enjoyment of the right to an adequate standard of
living.
Compatibility of the measure with
the right to an adequate standard of living
2.33
The former minister provided the committee with her assessment of the
human rights compatibility of the food security measures.[20]
In that assessment, the former minister stated that the policy objective of the
food security measure was to improve the quality and availability of fresh
healthy food in Aboriginal communities.[21]
2.34
The committee acknowledges that improving the quality and availability
of fresh healthy food is a legitimate objective for the purposes of
international human rights law. If the measures are capable of producing this
outcome the committee considers that the measures are likely to promote the
right to an adequate standard of living, which includes a right to access
affordable, nutritious and safe food.
2.35
In 2012, the NT Government reported that there were improvements in
store governance, and the availability and affordability of fresh fruit and
vegetables as a result of the licensing scheme.[22]
2.36
In 2014, the Australian National Audit Office (ANAO) reported on issues
of food security in remote Indigenous communities.[23]
It found there had been some problems with the implementation of the licensing
scheme, however, as at late 2014, the vast majority of stores had been licensed
with attention focused on ongoing regulation.[24]
The report found through anecdotal evidence that people were generally positive
about the impact of the licensing scheme on remote community stores in relation
to the range of healthy foods being made available by a licensed store.[25]
However, the ANAO noted that there were difficulties in measuring broader
outcomes as a result of food security initiatives.[26]
It concluded that, on the basis of the available evidence, 'the Community
Stores Licensing Scheme is likely to be achieving food security outcomes'
(though it noted the difficulties in making accurate assessments).[27]
2.37
In August 2015 the current minister provided further information to the
committee as to whether the food security measures had improved the
accessibility and affordability of food in the NT:
There is a range of evidence suggesting that the licensing
scheme has contributed to its objective of promoting a reasonable ongoing level
of access to a range of food, drink and grocery items that are reasonably
priced, safe and of sufficient quantity and quality to meet nutritional and
related household needs in Aboriginal communities in the NT. An evaluation by
the Cultural and Indigenous Research Centre in 2011 found that store licensing
has had a positive impact on food security, including the ongoing access to
food that is safe and of sufficient quality and quantity to meet household
needs. More recently, the Northern Territory Market Basket Survey 2014 showed
the average number of varieties of fresh fruit and vegetables available in
remote NT stores was 29 in 2014, compared with only 22 in 2007 when the
licensing scheme was not in place.[28]
2.38
The committee considers that the food security measures continued
under the Stronger Futures legislation are likely to promote the right to an
adequate standard of living (including the right to food).
Land reform measures
2.39
Part 3 of the Stronger Futures Act enabled the Commonwealth to make
regulations modifying any law of the NT relating to the use of or dealings in land,
planning or infrastructure (or anything else prescribed by the regulations) to
the extent that the law applies to an Aboriginal town camp or community living
area.[29]
2.40
The Stronger Futures in the Northern Territory Regulation 2013
(the regulation) was subsequently made on 25 July 2013.[30]
This regulation modifies NT law to:
-
allow community living area title holders to grant leases and
licences over their lands for a broader range of purposes, including for
commercial, infrastructure and public purposes; and
-
require that consent be sought from the relevant NT minister only
for leases on community living area lands for terms greater than 10 years, as
opposed to leases with terms greater than 12 months.
2.41
The committee considers that the land reform measure engages and may
promote the right to self-determination.
Right to self-determination
2.42
The right to self-determination is protected by article 1 of the ICCPR
and article 1 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).
2.43
The right to self-determination includes the entitlement of peoples to
have control over their destiny and to be treated respectfully. This includes
peoples being free to pursue their economic, social and cultural development.
It is generally understood that the right to self-determination accrues to
'peoples'.
2.44
The UN Committee on the Elimination of Racial Discrimination has stated
that the right to self-determination involves 'the rights of all peoples to
pursue freely their economic, social and cultural development without outside
interference' and that 'Governments are to represent the whole population
without distinction as to race, colour, descent or national or ethnic origin'.
2.45
Accordingly it is important that individuals and groups, particularly
Aboriginal and Torres Strait Islander peoples, should be consulted about
decisions likely to impact on them. This includes ensuring that they have the
opportunity to participate in the making of such decisions through the
processes of democratic government, and are able to exercise meaningful control
over their affairs.
Compatibility of the measure with
the right to self-determination
2.46
The explanatory memorandum for the Stronger Futures bill set out the
objective behind the land reform measures. It stated that the amendments to
facilitate voluntary long term leasing 'give[s] effect to the Commonwealth's
commitment to provide a platform for secure tenure which then can enable
economic development and home ownership opportunities in Aboriginal
communities'.[31]
The statement of compatibility for the Stronger Futures regulation stated:
...the Regulation is being made for the sole purpose of
securing adequate advancement for residents of Aboriginal community living
areas. This Regulation is required as a first step in providing a platform for
secure and meaningful land tenure in community living areas so as to assist in
securing members of those communities full and equal enjoyment of human rights
and fundamental freedoms by removing land tenure impediments that uniquely restrict
community living areas.[32]
2.47
The committee notes that the right to self-determination includes a
right for peoples to freely pursue economic, social and cultural development.
The Declaration on the Rights of Indigenous Peoples (the Declaration) also
provides that Indigenous peoples have the right to be secure in the enjoyment
of their own means of subsistence and development and to engage freely in
economic activities.[33]
The committee reiterates the views expressed in its 2013 report that the
Declaration is an important and relevant instrument for the work of the
committee and provides specific guidance on the content of the rights in the
human rights treaties which fall within the committee's mandate.[34]
2.48
The committee notes that the Central Land Council (CLC), which provides
legal and administrative support to title holding bodies of community living
areas in the NT, made a submission to government that argued that opportunities
for economic and social enterprise development had been limited by constraints
on the use of community living area land.[35]
While the CLC argued there was a need for broader reform beyond that contained
in the regulation, it stated that there was a genuine and urgent need for
reform of NT legislation to allow the residents of community living areas to
have more control over their land.[36]
2.49
In addition, the committee notes that the Northern Land Council (NLC),
which assists Aboriginal people in the Top End of the NT to acquire and manage
their traditional lands, also supported the land reform measures contained in
the Stronger Futures bill. The NLC submitted that legal restrictions on
communities living on community living area land were unjustifiable and there
needed to be capacity for secure tenure to be appropriately granted for
commercial and government activity.[37]
2.50
The committee considers that allowing Aboriginal community living area
title holders to grant leases and licences over their lands for a broader range
of purposes, including for commercial, infrastructure and public purposes, on a
voluntary basis, engages and may promote the right to self-determination, as it
allows Indigenous people greater opportunity to use their lands as they
determine.
2.51
However, the committee notes the importance of ensuring proper
consultation with Indigenous groups and other affected communities in order for
the right to self-determination to be realised.[38]
In that respect the committee looks to what consultation with affected
communities was undertaken prior to the regulation being made.
2.52
The statement of compatibility for the regulation stated that, before it
was made, the government released a Discussion Paper and undertook
consultation, including meetings in community living areas and with community
living land owners, residents and representatives from the relevant land
councils. Views provided in these meetings were summarised in an Outcomes Paper
released by the Australian Government on 21 June 2013.[39]
The Outcomes Paper noted that 17 written submissions had been received in
response to the Discussion Paper and these were used to inform discussions at
consultation meetings. Consultation meetings were held across the NT in 16
selected community living areas and with a number of cattle station owners
and/or managers. Plain English communication materials were distributed in
advance of, and used during, in-community meetings and interpreters attended a
majority of in-community meetings.[40]
The current minister further advised the committee that the 16 areas chosen for
consultation were the largest population centres:
All community living area communities were potentially
affected by the regulation. There are over 100 community living areas in the
Northern Territory. They range in size from towns to small family outstations.
The 16 communities consulted are the largest (by population) community
living areas. The 16 communities were selected in consultation with the Central
and Northern Land Councils.[41]
2.53
Following this consultation a draft of the regulations was released and
comment sought before the final regulations were made.
2.54
Two submissions to the present review stated that information received
from Aboriginal people in the NT is that consultations have occurred on land
reform, but only for 15 of the 100 plus affected communities, and suggested
this consultation was inadequate.[42]
2.55
The committee notes that the relevant power in the Stronger Futures
legislation does not specifically require consultation with land owners, only
that consultation be undertaken if it is requested by a land owner.[43]
However, based on the information available to the committee, it appears
relatively extensive consultation was undertaken with land owners and relevant
land councils prior to the regulation being made.
2.56
The committee considers that the land reform measures engage the
right to self-determination, including the right of peoples to freely pursue
economic, social and cultural development, under article 1 of the International
Covenant on Civil and Political Rights and article 1 of the International
Covenant on Economic, Social and Cultural Rights. The committee considers that
expanding the purposes by which Indigenous peoples can voluntarily decide to
lease their community land has the capacity to promote the right to
self-determination.
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