Chapter 3 - Key Issues
3.1
While strongly supportive of real initiatives to prevent family violence
and child abuse in Indigenous communities, all submissions and witnesses (with
the exception of the Attorney-General's Department and Victoria Police)
expressed concerns in relation to various aspects of the Bill and its likely
practical operation.
3.2
This chapter considers the main issues and concerns raised in the course
of the committee's inquiry, including:
- 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; and
- arguments that the Bill undermines important initiatives involving
Indigenous customary law, such as circle sentencing.
Lack of consultation
3.3
Several submissions and witnesses noted the haste with which the Bill
has been introduced into Parliament, without thorough, let alone adequate,
consultation.[1]
3.4
HREOC noted that '(d)espite the complexity of the issues raised by [the]
Bill, consideration of it is being rushed unnecessarily'; there has not been
any consultation with Indigenous people 'who practice customary law and
therefore no opportunity for feedback from the people who are purportedly the
subjects' of the proposed amendments contained in the Bill.[2]
3.5
The North Australian Aboriginal Justice Agency commented on 'a lack of
integrity in the government's timetable for consultation on the proposed
amendments'.[3]
Department response
3.6
A representative from the Attorney-General's Department (Department) confirmed
that 'there was no direct consultation' with respect to the Bill, apart from general
discussions with all Aboriginal legal services about customary law issues
arising out of the Intergovernmental Summit.[4]
He explained that:
The major form of consultation was through the summit and the
outcomes of the summit and then on to COAG. The issues there relate to the
publicity of those issues. That consultation was in relation to Indigenous
issues. We have not approached any ethnic groups.[5]
Arguments that the Bill represents a misguided approach
3.7
Much of the evidence received by the committee focused on arguments that
the Bill represents a misconceived approach to addressing, in any meaningful
way, the problems of violence and child abuse in Indigenous communities.
Indeed, many were of the view that the Bill may in fact create problems in this
context.
Relevance of Commonwealth offences
3.8
Many submissions and witnesses pointed out that the Bill will have limited
effect in achieving its stated purpose. This is because the majority of
offences, particularly those offences most relevant to violence and child abuse
in Indigenous communities, are committed and dealt with under relevant state
and territory criminal laws – not Federal legislation. As the Aboriginal and Torres
Strait Islander Social Justice Commissioner and Acting Race Discrimination
Commissioner (Social Justice Commissioner) told the committee:
The Commonwealth Crimes Act 1914, which is amended by the bill,
does not apply to offences of violence such as assault, murder or rape. They
are covered by state and territory laws.
...
... this amendment does not address anything to do with Indigenous
violence. Under federal legislation there is nothing in the Crimes Act that
addresses issues like assault, rape or sexual violence. So why, then, do we
have this in the Commonwealth Act? As Minister Brough has indicated, he has an
intent to negotiate with the states to change their complementary legislation
to rule it out, and most of those offences are really state offences and are
judged under there.[6]
3.9
Ms Raelene Webb QC, appearing on behalf of the Law Council of Australia
(Law Council), expressed a similar view:
It is acknowledged that the bill will have immediate impact only
in relation to Commonwealth offences and not directly in relation to issues of
particular concern identified in the explanatory memorandum—that is, high
levels of family violence and child abuse in Indigenous communities. Offences
relating to these issues are generally committed and charged under the relevant
criminal statutes of the states and territories.[7]
3.10
Mr John McKenzie from the Aboriginal Legal Service (NSW/ACT) also noted
that the Crimes Act 'does not cover many of the offences that may in fact be
relevant ... out in the remote communities'.[8]
3.11
Despite the limited reach of the amendments proposed by the Bill and evidence
indicating that only a very small proportion of Indigenous offenders are
charged with Federal offences,[9]
the committee heard that the Bill may nevertheless have an adverse practical impact
on Indigenous persons, primarily in relation to offences under the Social
Security Act 1991. As Mr McKenzie explained:
... the one federal offence where we are most concerned that this
bill will have a real impact upon our clientele in a very practical way is that
which, in our circles anyway, is known as the Centrelink fraud prosecutions,
which are conducted by the Commonwealth DPP, for people who do not properly
declare casual income and are on a pension, unemployment benefits, parenting
pensions and that type of matter.[10]
3.12
Mr McKenzie noted that this would have a very real impact on his
organisation's clientele base:
... when it comes to the proposal of this bill there will be an
outright prohibition on the courts taking any consideration not only of
customary law but also of what is termed in the bill 'cultural practice'—and I
am unaware of how that may be defined. In our regard it is an extremely broadbrush
approach to use the term 'cultural practice'. We foresee that it will affect a
large part of what ordinarily our lawyers would be putting, on behalf of our
clients, in mitigation of sentence in response to a conviction for that type of
fraud charge. It will very much give the opportunity for the prosecution to
object to any matters that may be able to be nominated or called cultural
practice being properly considered by the magistrate or the judge who is
dealing with that matter.[11]
3.13
Mr Nicholas Parmeter from the Law Council made a similar point:
There are going to be examples that have not been tested yet
where, for instance, breaches of the Social Security Act might be impacted or
influenced by an individual's culture. There are certain aspects of Aboriginal
culture, including caring for community and the like, which might have some
influence on an individual's decision to commit social security fraud or
something like that. It is unclear what weight the court would give in those
circumstances but it seems a little outrageous to prevent the court from
considering those factors if they are relevant.[12]
3.14
Submissions and witnesses also anticipated much broader implications if
the states and territories uniformly adopt a similar approach to that taken in
the Bill, as encouraged by the Federal Government.[13]
As Mr Parmeter noted, '(i)f that happens then it will be state and territory
laws, where the vast majority of violence offences occur, that determine
whether or not a person's culture can be considered a relevant aspect of an
offence'.[14]
3.15
In this context (and in strongly opposing the measures contained in the Bill),
Catholic Social Services Australia submitted that it is the Commonwealth's
responsibility to lead by good example:
It is incumbent on the Commonwealth Government to ensure that
any legislative action it develops in response to the July 2006 COAG Communiqué
is measured, just, and not liable to have unintended consequences which might
further disadvantage some of the most vulnerable people in the Australian
community. This is important not only directly for federal offences, but also
indirectly for State/Territory offences to the extent that the Commonwealth
model is followed elsewhere.[15]
No link between customary law and
lenient sentences
3.16
National Legal Aid, amongst others, pointed out that there is no
'customary law defence' in Australia. To this end, it argued that 'much of
these proposed amendments appear superfluous'. It noted, however, that this
view may not accord with community beliefs:
Unfortunately, since May this year a volatile combination of
media and politics has resulted in some belief within the community that there
is such a defence and the reality of the fact that ... sentencing principles ... apply
to all Australians has been ignored. [National Legal Aid] believe(s) that this
misconception forms a substantial basis of these amendments.[16]
3.17
The Social Justice Commissioner also stressed the point that customary
law is not a defence:
Let us also be very clear that customary law is not a defence
anywhere in Australia. An offender cannot get off because of customary law.
Nobody is suggesting that people who are convicted of criminal offences should
not be appropriately punished, but appropriate punishment is best achieved by
ensuring that courts can consider the full range of factors relevant to the
commission of the offence—including a person's culture.[17]
3.18
In any case, considerations of customary law and cultural practice must
be consistent with other human rights, including the human rights of Indigenous
women and children to be free of violence and discrimination:
... the right to enjoy culture m[ust] be consistent with other
human rights and, in particular in the present context, the rights of women and
children. The sentencing process involves a similar process of balancing the
rights, interests and circumstances of the community, the victim and the
offender. For the law to automatically exclude cultural practice from the
matters to be taken into account is to distort this balancing process in a way
inconsistent with the right to enjoy a culture. To automatically exclude
customary law and cultural values from sentencing is also contrary to
Australian commitments to cultural diversity.[18]
3.19
The Law Council also noted that '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'.[19]
The Law Council also pointed out that:
... despite significant misinformation reported about individual
cases where trial sentences have appeared lenient, very few have involved
submissions regarding customary law or cultural practices. Indigenous community
leaders have consistently abhorred any suggestion that violence against women
and children is justified or condoned in any way by customary law.[20]
3.20
Professor Weisbrot from the ALRC pointed out that cultural background
and customary law 'never works' as a defence, but 'in explaining behaviour and
fashioning an appropriate sentence, it sometimes is relevant in understanding
the motivation'.[21]
That is, in some cases courts may 'look at Aboriginality in terms of
disadvantage and therefore apply some reductions rather than actually going
through a more lengthy and difficult process of ascertaining genuine Aboriginal
custom and then applying that'.[22]
Professor Weisbrot also pointed out that, in his view, the Bill 'is an overreaction
to some particular cases. [However,] the particular triggering cases were ones
in which Aboriginal custom was not accepted by the courts anyway'.[23]
3.21
The Victorian Aboriginal Legal Service Co-operative noted that the
'inappropriate use of cultural background by Courts to justify more lenient
sentences is extremely rare. Over the last decade we are aware of a handful of
cases where the issue of lenient sentences and cultural background has been problematic'.[24]
3.22
Professor Larissa Behrendt and Ms Nicole Watson from the Jumbunna
Indigenous House of Learning at the University of Technology, Sydney expressed
the view that the most effective means of ensuring that proper sentences are
given to those who perpetrate family violence is judicial education.[25]
Department response
3.23
The committee sought clarification from the departmental representatives
about the wording used in proposed paragraph 15AB(1)(b) and proposed subsection
16A(2A) – namely, that customary law or cultural practice cannot be used 'as a
reason for excusing, justifying, authorising, [or] requiring' criminal
behaviour. The committee put it to the representatives that this wording in
fact amounts to a statement that customary law or cultural practice cannot be
used as a defence.
3.24
A representative of the Department conceded that the wording in the Bill
might be interpreted in this way but explained that the phrase is also intended
to be interpreted in the context of mitigation:
The colloquially used word 'defence' is one which, as you will
be aware, is used in many ways by different people. What we are clarifying here
is the breadth of what is endeavoured to be prohibited. In terms of defence to
guilt or innocence, again, it can be interpreted like that; but also in terms
of saying, 'You should excuse me from this,' in a plea of mitigation, or
wanting to justify your actions in a plea of mitigation. It can certainly be
interpreted in that way. I think the words 'lessens the seriousness' also add
to that, and make it clear that this is about mitigation as well.[26]
3.25
The committee also notes, with concern, confirmation from the Department
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
take into account customary law or cultural background to increase a
penalty. The representative stated that these provisions have been drafted in a
non-neutral way as a matter of 'principle about protection of victims and the
emphasis being placed on those types of needs'.[27]
Distraction from 'real' solutions
3.26
Many submissions and witnesses argued that the Bill distracts from the
implementation of real solutions to the problem of family violence in
Indigenous communities.
3.27
The Social Justice Commissioner told the committee that real solutions
are needed to address in a meaningful way the problems of 'poverty,
overcrowding, substance abuse, low levels of education and unemployment'.[28]
He argued that urgent changes need to be made on the ground to address these
issues:
It is a concern that there have been many reports over a number
of years indicating what the experts suggest should happen in relation to
addressing family violence, and yet nothing has happened. In particular, since
Minister Brough's summit—in June, I think—we have seen nothing come out in
relation to addressing any of these issues. If we are putting all of our hope
on this amendment to address and change family violence, I think that is
misconceived. It will do nothing to address any of those issues. They are
issues that have to be dealt with on the ground. Part of what I endeavour
always to do is to try and encourage governments to look at putting in place
programs that will intervene early so that we do not get issues where people
are incarcerated.[29]
3.28
The Social Justice Commissioner noted that complementary programs mooted
at the Intergovernmental Summit in June 2006 and COAG in July 2006 have not, to
his knowledge, been advanced any further since those meetings:
I have not seen anything demonstrate publicly that there have
been any measures. There was a discussion in the COAG meeting that talked about
establishing an advisory body to COAG on Indigenous affairs. I understand that
the National Indigenous Council, who were advising the government, have also
raised concerns about family violence, child abuse and so forth and want to get
other measures put in place. I have yet to see anything announced publicly. In
fact that is a concern—that nothing is happening and yet we have identified it
as a major priority and we have had the summit. When is action going to start?[30]
3.29
National Legal Aid also stressed the importance of practical initiatives
to help combat problems in Indigenous communities:
We have seen ... that when people living in remote communities
understand [the criminal justice] system and feel that they can truly
participate in decisions that are made in relation to their community, they are
more likely to take ownership of the decisions that are made and work as a
community to resolve them.
... increased resources to communities is required in a range of
areas from infrastructure, services such as police, clinics, witness support,
sport and recreation and schools to wellbeing programs such as men's centres;
anger management and rehabilitation programs. A primary aim should be to
address the issues that contribute to offending behaviour.[31]
3.30
In relation to protection of victims and witnesses, National Legal Aid
expressed the view that 'there is an urgent need to provide comprehensive
community legal education to remote and culturally linguistically diverse
communities so that they understand the legal system and are informed about
their rights and responsibilities'.[32]
3.31
Catholic Social Services Australia made a similar argument:
... changing sentencing rules is [not] an effective way of
addressing the causes of violence in Indigenous communities. That requires
action to address poverty, social exclusion and the deficiencies of current
support arrangements for families in crisis.[33]
Department response
3.32
At the hearing, in response to questioning by the committee about how
the Bill will specifically address the problems of Indigenous violence, and
sexual and child abuse, the departmental representative told the committee that
the Bill 'reflects and has come out of the very real concern about family
violence and sexual abuse within Indigenous communities' and is consistent with
the approach agreed to at the Intergovernmental Summit which was 'to take
effective, clear and definitive action as quickly as possible, and to provide
leadership in relation to those types of issues'.[34]
3.33
He stated that the Federal Government is taking a position of
'leadership and modelling' through the measures proposed by the Bill. He noted
that the tenor of the principles contained in the Bill are those that were also
agreed at COAG:
[The Bill] is an application of those principles, and it is
showing how those principles can be put into practice broadly across the
jurisdictions. There is a wide variation across jurisdictions in relation to
both sentencing and bail legislation, and a disparity between the particulars
of how each of those jurisdictions approaches very similar issues. One of the
positions that we are able to adopt is the strength of harmonising those kinds
of issues.[35]
3.34
However, the committee notes that there are no Commonwealth laws
relating to violence and child abuse in Indigenous communities upon which the Bill
has any impact.
3.35
The committee notes also that the COAG Communique stated that the Standing
Committee on Attorneys General (SCAG) was 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. SCAG was also
to recommend any changes required. The committee is concerned that the Federal
Government appears to have pre-empted that process through its introduction of
the Bill.
3.36
The representative also drew the committee's attention to 'a number of
other initiatives', including the National Indigenous Violence and Child Abuse
Intelligence Task Force, community legal education, traditional education and
judicial education that are being pursued on a bilateral basis with the states
and territories.[36]
3.37
In this regard, the committee notes, and commends, the opening on 5 October 2006 of the Alice Springs office of the National Indigenous Violence and Child
Abuse Intelligence Task Force.[37]
Is the Bill discriminatory?
3.38
Many submissions and witnesses argued that the Bill is discriminatory.
3.39
For example, the Law Council argued strongly that the Bill will have a
discriminatory impact on Indigenous Australians and Australians of
multicultural descent. As Ms Raelene Webb QC told the committee:
... even focusing just on the bill relating to Commonwealth
offences, it is clear that [it] will impact not just on Indigenous offenders
but also on offenders from different cultural backgrounds. Only offenders from
the dominant Anglo-Saxon Australian culture will not be impacted by the
amendments or will perhaps be impacted to a lesser extent.[38]
3.40
In the context of the Bill's application to Federal offences only, the
Law Council made the pertinent observation that the majority of those who have
been incarcerated in Australian prisons following commission of a Federal
offence are non-Australian citizens (Australian citizens comprise only 43 per
cent of such prisoners). The Law Council concluded that this indicates that in
practice the Bill 'will have a greater impact upon non-Australians; it also
gives rise to the concern that the Bill will have effect on people and
circumstances that have not been properly considered in the rush to implement' the
Bill.[39]
3.41
The Law Council argued that the Bill may breach the provisions of the Racial
Discrimination Act 1975 (RDA) since it 'will require courts to treat
Indigenous offenders or offenders of particular ethnic origin as if they did
not belong to a particular Indigenous or ethnic group'. Further, the RDA
'embodies a concept of discrimination which seeks to ensure substantive rather
than merely formal equality before the law';[40]
this is something that, arguably, the Bill does not achieve.[41]
3.42
The Social Justice Commissioner articulated HREOC's views about the
possible discriminatory effect of the Bill in a similar vein:
The argument that this bill provides equity before the law is
misconceived and premised on a false assumption that only some people—other
people—have culture. All Australians, regardless of their ethnic background,
have cultural values and may engage in cultural practices which may be relevant
to sentencing for a criminal offence. It does not offend equality before the
law for such matters to be taken into account in all cases where they are
relevant. On the contrary, such an approach provides equality before law.[42]
3.43
The Social Justice Commissioner also noted that the Bill 'suggests that
only certain people have culture and that other things are just the status quo'.
This presents a danger in that 'the practice of the majority may be seen as the
standard or the norm and can therefore be taken into account, while the
practices of minority cultures and cultural groups are seen as cultural and
therefore excluded from being considered in sentencing'. HREOC's view is that
this approach is fundamentally wrong.[43]
3.44
The Victorian Aboriginal Legal Service Co-operative expressed concern at
the Bill's proposal 'to sentence people as though they were someone else.
Culture is inseparable from individuality and it is unrealistic to strip away
culture from a person. Any notion that this is plausible is based on an
over-simplistic conceptualisation of culture'.[44]
3.45
Professor Weisbrot from the ALRC also agreed that the Bill could be seen
to be discriminatory '(i)nsofar as it singles out a particular group as having
their custom and culture excluded in a particular provision'.[45]
Department response
3.46
The representative from the Department disagreed with assertions that
the Bill is discriminatory in relation to any particular group in Australia. He
maintained that it 'applies across the board to all Australians' and is
consistent with the Racial Discrimination Act.[46]
The Bill's deviation from findings of major relevant inquiries
3.47
Many submissions and witnesses contended that the Bill is not based on,
or supported by, any evidenced research. On the contrary, as HREOC argued, the Bill
is in conflict with every major inquiry into the role of cultural background
and customary law in the Australian legal system, including five reports of the
ALRC.[47]
3.48
The ALRC argued that the Bill's proposed insertion of subsections
16A(2A) and (2B) into the Crimes Act is 'diametrically opposed to the
recommendations of the ALRC in numerous reports' and is 'also in conflict with
the recommendations of the Royal Commission into Aboriginal Deaths in Custody,
which the Government indicates it considered when drafting these provisions'.[48]
3.49
The committee notes the following ALRC reports which have particular
relevance with respect to cultural background and customary law in Australia:
- Same Crime, Same Time: Sentencing of Federal Offenders (ALRC
103, 2006) which recommended the retention of cultural background in the
factors listed in paragraph 16A(2)(m) of the Crimes Act and also recommended
that Aboriginal and Torres Strait Islander customs should be among the
specifically enumerated factors in that paragraph;
- Multiculturalism and the Law (ALRC 57, 1992) which recommended
that an offender's cultural background should be expressly included as a factor
to be taken into account in sentencing under paragraph 16A(2)(m) of the Crimes
Act (at the time of that report, paragraph 16A(2)(m) did not include 'cultural
background' as a specific factor);
- Sentencing (ALRC 44, 1988) which also recommended that an
offender's cultural background be listed in the relevant legislation as a
factor to be taken into account in sentencing; and
- The Recognition of Aboriginal Customary Laws (ALRC 31,
1986) which concluded that Aboriginal customary laws are a relevant factor in
mitigation of sentence.
3.50
The committee also notes that, in 1994, the Federal Parliament gave
bipartisan support to the insertion into the Crimes Act of the requirement that
courts consider the cultural background of an offender in sentencing. This
committee, in its report on the Crimes and Other Legislation Amendment Bill
1994, also unanimously recommended that the proposal to insert this requirement
should proceed. The proposal was supported by the majority of submissions
received by the committee in the course of that inquiry and was not opposed by
the Commonwealth Director of Public Prosecutions.[49]
Royal Commission into Aboriginal
Deaths in Custody
3.51
Many submissions and witnesses pointed out that the Bill is at odds with
the recommendations of the Royal Commission into Aboriginal Deaths in Custody
(Royal Commission). As Professor Weisbrot from the ALRC told the committee:
[Those recommendations] were quite specific in saying that we
need to reduce the Aboriginal prison population and that, as part of that,
Aboriginal cultural practice should be taken into account in determining
sentences, including whether a custodial sentence was required at all or
whether other options might be more sensible, or in reducing the amount of
time—again, where relevant.[50]
3.52
The Law Council noted that there has not been significant progress since
the Royal Commission and that average prison terms for Indigneous Australians
have increased since that time, 'a fact that runs contrary to assertions by
proponents of the Bill that Indigenous people are treated more leniently than
non-Indigenous people'.[51]
Moreover, in the Law Council's view, rates of Indigenous incarceration will
increase under the Bill and sentencing options for courts will be limited in
their attempt to address recidivism and Indigenous disadvantage under the legal
system.[52]
3.53
The Social Justice Commissioner also noted the Bill's divergence from
the Royal Commission's recommendations:
The royal commission recommendations encourage both the states
and the federal government to look at measures to address some of the factors
that contribute towards incarceration and offending by Indigenous people. They
put a lot of onus on governments to address issues like housing, employment,
education and so forth. This bill is not doing that. What are also not being
considered are the issues that were raised in the commission's recommendation
in relation to looking at incarceration, or at least looking at alternatives to
arrest, and taking into consideration that customary law or cultural practices
in fact are used quite widely, by Indigenous peoples particularly, in getting together
and being able to exchange information about life and about culture. So there
is an inconsistency if we try to disregard that.[53]
3.54
Mr John McKenzie from the Aboriginal Legal Service (NSW/ACT) argued that
the Bill represents a departure from the general spirit of the recommendations
of the Royal Commission:
What we have in this bill, if it becomes law, will effectively
mean that one of the considerations that may reduce the amount of time
Aboriginal offenders remain in jail will be, if not removed, then certainly
lessened in its importance. More important, though, is that a very fundamental
thrust of the royal commission was that we in the non-Aboriginal part of the
community need to be open and learn lessons that the Aboriginal people can
teach us about how things might be able to operate in that field.[54]
3.55
Mr McKenzie continued in this vein:
By bringing in a prohibition on things to do with cultural
practice or customary law, we are making a very symbolic statement that that is
really not important any more and that we—the non-Aboriginal people and
government agencies—know best as to what to do in relation to Aboriginal
issues. I think that although I am not going to say it offends any particular
recommendation, it offends those overall general recommendations, because we
believe this will [lead] to certainly increased time in custody for a number of
our clients but, more importantly, to a downgrading in the importance of
Aboriginal culture in the whole operation of the criminal justice system.[55]
3.56
HREOC provided the committee with an analysis of some specific
recommendations of the Royal Commission relating to bail and sentencing, and
their consistency with the Bill. Most relevantly to the Bill, HREOC pointed to
Recommendations 104 and 111, namely that:
- there be consultation between sentencing authorities and
Aboriginal communities and organisations in sentencing – both generally and in
specific cases subject to preserving the civil and legal rights of offenders and
victims; and
- in reviewing options for non-custodial sentences, governments
should consult with Aboriginal communities and groups.[56]
3.57
HREOC observed that such recommendations and other findings of the Royal
Commission 'are consistent with [HREOC's] view that positive engagement with
Indigenous customary law and practice is essential to improving the way in
which Indigenous people relate to the criminal justice system'.[57]
Department response
3.58
The departmental representative informed the committee that the Royal
Commission's recommendations relating to policing, court structures, and youth
issues, as well as those that emphasised the importance of families and family
relationships, were considered generally in the formulation of the Bill. He
noted recommendations in relation to victims and communities, and incarceration,
and those that called for a holistic response to all these issues:
... that is partly the balance placed in this legislation. The
work arising from the summit recognises a lot of the other issues—for example,
legal education, which is what we are involved with. There are also issues
around better care, better probation services and better policing, which of
course place a context for any of this legislation to operate in. Some of the
particular bail legislation will certainly not be affected—for example, reporting
to Aboriginal legal services ... (C)ertainly the thrust of the bail legislation,
where the concerns about incarceration were endeavoured to be balanced, takes
into consideration the needs of victims and the community.[58]
3.59
The representative noted further that:
The royal commission's recommendations, as I indicated, run very
broadly. The emphasis upon those recommendations is a matter that is considered
in a whole raft of ways in terms of the work undertaken in the branch that I
administer—we administer Aboriginal legal services, family violence prevention
legal services, and preventative and diversionary programs—so they are integral
to the kind of work we do on a daily basis.[59]
3.60
In response to assertions by several submissions and witnesses that the
Bill will result in a greater number of Indigenous people in custody, the
representative conceded that this is possible but that '(w)hether that will
happen will depend on a whole range of factors that may yet come into play'.[60]
Preservation of judicial discretion
3.61
Many argued that the amendments contained in the Bill will unnecessarily
and inappropriately restrict the discretion of courts, resulting in potential
injustice for Indigenous Australians and Australians of multicultural descent. Most
submissions and witnesses centred their comments on proposed amendments to the
sentencing process, as contained in Items 4 and 5 of the Bill (new paragraphs
16A(2)(m) and subsection 16A(2A).
3.62
Catholic Social Services Australia provided the committee with a summary
of the general concerns in this regard:
... the current law strikes an appropriate balance by including
"cultural background" among a long list of factors which must, to the
extent that they are relevant and known to the court, be considered in
sentencing for federal offences. If made law, the Bill would remove the
reference to "cultural background". This would create an imbalance
and risk injustices stemming from inadequate consideration of cultural factors.[61]
3.63
Even more significantly, by specifically prohibiting any consideration
of cultural practices or customary law, the Bill 'would further disadvantage
some of the most vulnerable people in our community because some relevant
cultural factors would not be allowed to be weighed on the scales of justice'.[62]
3.64
The Aboriginal Legal Service (NSW/ACT) made a blunt assessment of the
likely impact of the Bill, stating that '(s)uch a move would spell disaster for
Aboriginal defendants whose offending is largely symptomatic of broader
problems such as dislocation from land, poverty and lack of opportunity for
education and employment'.[63]
Cultural background as a sentencing
factor
3.65
Cultural background and customary law practices have long been
considered to be a relevant factor in sentencing offenders in a number of
jurisdictions, including the Commonwealth – even before the insertion of the
term 'cultural background' into paragraph 16A(2)(m) of the Crimes Act in 1994.[64]
3.66
As the Social Justice Commissioner explained:
The bill ... overturns common law sentencing principles which apply
to everybody and have been carefully developed over many years. The courts have
recognised that it is necessary to take into account relevant factors about the
offender's cultural background in order to ensure just sentences. This bill
abandons that principle and it does so for no good reason.[65]
3.67
Submissions and witnesses noted that subsection 16A(2) of the Crimes Act
is a non-exhaustive list of sentencing factors and that the Bill's removal of
'cultural background' from the list does not preclude it from being considered
by courts in making sentencing decisions – a point noted in the EM to the Bill
and by the departmental representative. However, many were of the view that
this would result in less emphasis being placed on the need to consider
cultural background as a relevant factor in the future, impeding the courts in
determining appropriate sentences and leading to less transparency and certainty
in the sentencing process.[66]
3.68
The general view was that the approach taken in the Bill is not an
appropriate development in the law. As Mr Jonathon Hunyor from HREOC noted:
... there are two aspects to the bill. One is the removal of
cultural background, which can currently be taken into account. The other is
the introduction of these notions of customary law and cultural practice, which
a court is specifically excluded from taking into account. We do not think the
looseness of saying that a court can take into account cultural background is a
problem, because the court, in the sentencing process, will just take into
account those matters that are relevant. Courts have done that for as long as
they have been sitting. But introducing these new concepts, which are not
defined, and preventing a court from taking them into account adds a whole new
dimension. Failing to define those things makes it very hard for us to assess
what effect they are going to have. Also, it creates problems for a court which
is prohibited from taking those things into account. The court must obviously
know what those things are.[67]
3.69
The ALRC has long held the view that cultural background is an important
factor that should be included in any legislative list of sentencing factors:
... the consideration of traditional laws and customs to explain
an offender's reasons or motives for committing the offence is merely one
factor to be considered in the sentencing process. The weight to be attached to
the factor always should be a matter for the court's discretion, consistent
with the application of Australia's obligations under international law and our
own human rights instruments. It must be considered together with a large range
of other factors, and applied so as to impose a sentence that is consistent
with the sentencing principles and the purposes of sentencing, and appropriate
in all the circumstances of the case. Prohibiting consideration of this
particular factor limits the judicial discretion to consider and weigh up all
relevant factors of the case.[68]
3.70
In any case, as the Law Council and others pointed out, courts have
generally been 'getting it right' with respect to the balancing of different
concerns in bail and sentencing; in cases where mistakes have been made in
sentencing at trial, 'those mistakes have been invariably rectified on appeal'.[69]
Mr McKenzie from the Aboriginal Legal Service (NSW/ACT) noted that 'that is
exactly why we have the appellate structure within the courts' – to launch
appeals against inadequate sentences.[70]
3.71
Mr McKenzie expressed concern about the 'very real symbolic message'
that the Bill sends 'that cultural background is not to be given the importance
that it formerly was'. Further:
[The Bill] is not a prohibition on the court having reference to
it. Our concern is this: it has been a legislative direction, which gives it a
certain status ...
... if you remove what was once a
legislative direction to all magistrates and judges to take this into account,
that in itself is a very important symbolic move to not only the members of the
judiciary but also to everyone else involved in the criminal justice system,
especially the prosecution. We work in an adversarial system. They would only
be doing their job if they stood up and objected to anything cultural practice
or customary law related that any of our lawyers put in any Commonwealth case.[71]
Department response
3.72
The committee sought an explanation from the Department of the rationale
for removing 'cultural background' from paragraph 16A(2)(m) of the Crimes Act.
The departmental representative maintained that this proposal makes clear the
Federal Government's position that the law applies equally to all persons and
that 'everyone should have the same protection'.[72]
The representative stated that courts would not be prevented 'from considering
any other matter they saw as relevant, so they could consider cultural
background if they saw it as relevant at that time'.[73]
3.73
While a belief or a claim of customary law or cultural practice could
not be used as an excuse or justification for an offence, it could be considered
in relation to other circumstances of the offender.[74]
For example, the fact that an offender may face traditional punishment for the
offence could be considered. However, the committee notes that this is the
current situation in any event.
3.74
The committee is also concerned about the seemingly contradictory argument
that the amendment will remove the phrase 'cultural background' from the Crimes
Act, but still allow it to be taken into consideration in relation to an
offender's 'other circumstances'. Indeed, in this context, it is also unclear
to the committee why 'cultural background' should be removed while the term
'antecedents' in paragraph 16A(2)(m) is to be retained.
Cultural background as a factor in
bail proceedings
3.75
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.
3.76
National Legal Aid (NLA) noted 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'.[75]
3.77
NLA argued that, contrary to the statement contained in the EM, this
will result in direct financial implications 'arising from the transport of
accused persons from communities to remand centres and the further cost of
detaining them in custody'. There may also be potential financial impacts to
Legal Aid Commissions due to the time and complexity and, therefore, cost of
bail applications.[76]
3.78
However, Mr Jonathon Hunyor from HREOC indicated that HREOC did not have
specific concerns with the Bill's application to bail proceedings:
The safety of members of the community is always taken into
account. The potential for someone to interfere with a witness is always taken
into account by bail courts ... I speak mostly from experience in state and
territory jurisdictions but, having worked in criminal law, it would surprise
me enormously if those sorts of factors were not taken into account by courts
granting bail in the case of Commonwealth offences as a matter of course. So it
may be that this part of the bill does not necessarily add anything in relation
to the point ... about people not being returned to remote communities where
there may be concerns about violence towards witnesses or other members of the
community ...[77]
3.79
The Aboriginal Legal Rights Movement (ALRM) made an interesting
observation about paragraph 15AB(1)(b) of the Bill which requires a bail
authority to not take into account customary law or cultural practice:
Matters of mitigation are not normally taken into account in
relation to bail applications, since the bail discretion, may be applied
whether the person would be pleading guilty or not guilty and is made in the
context of the presumption of innocence. In that circumstance, a provision
which prevents a court from taking into account customary law or cultural practice
as a reason for excusing, justifying etc alleged criminal behaviour, in
relation to a bail application for the offence charged may not be relevant to
the consideration of bail in any event.[78]
3.80
ALRM submitted further that 'either the ... paragraph is too narrowly
drawn to achieve what was intended, or else ... it is not clear what actually was
intended by the provision'.[79]
3.81
Mr Nicholas Parmeter from the Law Council noted that there might be a
slight change in the focus of the courts in bail proceedings as a result of the
Bill's specific enunciation of certain principles:
[At present,] the vast majority of cases will tend to gloss over
the detail in bail proceedings, largely due to the resources of the courts and
the time frames allowed for consideration of those bail proceedings. What we
may see is courts indicating that they have specifically excluded certain
considerations and, as a result, have refused bail to a certain offender on the
basis of that consideration or, in the more positive sense, that the court has
considered the interests of the victim and made a determination that the
prisoner can only be released on certain conditions and under supervision.
I think that part of the misconception about aspects of the bill
which affect bail is that cultural practices and customary law will not be
taken into account as a mitigating factor in a bail proceedings. It may
influence the court's decision about whether or not bail should be granted ...[80]
Undermining important initiatives involving customary law
3.82
The committee received evidence that the Bill will undermine important
initiatives, such as circle sentencing, which have sought to engage with
aspects of Indigenous customary law and practice in a positive way. As HREOC
submitted:
Customary law can provide a means through which Indigenous
communities can exercise greater self-governance and take greater control over
the problems facing their communities. It should not be automatically excluded
as irrelevant in the context of sentencing. To do so undermines its legitimacy.[81]
3.83
The Social Justice Commissioner reiterated this point at the hearing:
[The Bill] ... undermines the important initiatives such as circle
sentencing and Koori courts that have been sought to engage with aspects of
Indigenous culture, customary law and practice in a positive way. These have
been reported to have been having a very positive impact on repeat offending
and should be supported, not undermined.[82]
3.84
The Law Council also submitted that the Bill 'has the potential to
neutralise recent constructs, including Aboriginal courts that have been
established with outstanding success in a number of jurisdictions'. It argued
that any undermining or deterioration of community governance structures may
increase the problems of violence and child abuse in Indigenous communities.[83]
3.85
HREOC expressed uncertainty about how the Bill might impact upon, or
interact with, certain elements of customary law in situations where there has
been, or will be, 'payback'. It suggested that if such matters cannot be taken
into account, this may result in Indigenous people facing greater punishment than
is currently the case.[84]
3.86
Mr John McKenzie from the Aboriginal Legal Service (NSW/ACT) also
expressed concern about the Bill's possible negative impact on circle
sentencing:
What we foresee with this bill going through is that all
Commonwealth offences will simply not be allowed to go through to the circle
because there will be that disjointedness, if you like, between the respect
that will be asked of the offender to the people in the circle, and the people
in the circle sitting in judgement on him or her not being allowed to take into
account any cultural practice of the offender. And that disjuncture of respect,
which must be mutual for it to flourish and to be able to support this process,
could spell the end of that process.[85]
3.87
In Mr McKenzie's view, if the states and territories were to follow the
Commonwealth's lead and amend their legislation in a similar way, circle
sentencing will not survive in total:
What we would then be looking at is
wholesale removal of all of those principles set by the common law—the
court-made law.[86]
Department response
3.88
The departmental representative told the committee that the Bill would
not stop alternative sentencing mechanisms, such as circle sentencing, from
operating. The representative stated that circle sentencing and other
alternative sentencing forums occur within the proceedings of the criminal
justice system itself. The Bill will not impact on these forums in and of
themselves; its effect will only relate to the imposition of penalties:
What is being said here is that, in terms of a penalty, they can
still impose any broad penalty that the court feels appropriate having gone
through that circle. But what they are saying is that there can be no
mitigation because the offender says, 'Look, I did this because I had a belief
that I was entitled to do it on the basis of customary law.' The discussion
about customary law, the explanation about customary law, can all occur, but
the legislation is drawing a line and saying, 'You can't get a lesser sentence
because you say you've justified your activities on the basis of customary
law.'[87]
3.89
The representative noted that alternative sentencing mechanisms include
various factors which reach beyond the guilt or innocence of an offender. He
stated that none of these factors would be adversely affected by the Bill's
application:
The processes involved include restoration of harm, which goes
beyond the guilt or innocence of the offender. They involve the impact that it
has had on the victim and the impact in particular that it has had on the
community ... None of these amendments stop that from happening. This amendment
will stop the offender obtaining mitigation based upon a customary law, belief
or practice but it will not stop an explanation being given or an understanding
given to victims or the community about what happened. It will stop the
sentence being decreased, effectively.[88]
Committee view
3.90
The committee recognises that the measures contained in the Bill are
intended to reflect agreements made by the Federal Government and state and
territory governments at the Intergovernmental Summit and at COAG in June and
July 2006.[89]
While the committee is aware that the Bill comprises only one element of the
Federal Government's commitment to targeting the problems of violence and child
abuse in Indigenous communities, the committee considers that the Bill's focus
is misdirected. The committee is of the view that the Bill will do little, if
anything, to achieve its stated aim. In this context, 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.
3.91
The committee agrees with evidence presented during the course of the
inquiry that practical initiatives are imperative to address family violence in
Indigenous communities in a meaningful way. The committee also notes the
importance of protecting victims, witnesses and other members of the community,
particularly those in remote communities, from threat and intimidation. Strategies
to address the issues that contribute to offending behaviour in the first place
are urgently required. The committee commends initiatives such as the National
Indigenous Violence and Child Abuse Intelligence Task Force but notes that all
witnesses and submissions to the inquiry seek 'on the ground' practical
solutions to addressing violence. It is not clear how this Bill will assist in
that aim.
3.92
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. While
the committee recognises the Federal Government's role in providing leadership
in relation to addressing urgent problems in Indigenous communities, the issues
raised by the Bill are complex and require careful consideration. The committee
suggests that the Department give consideration to developing consultation
mechanisms prior to introducing future amendments into Parliament.
3.93
The committee also notes advice from the ALRC that, in relation to its Same
Crime, Same Time report into Federal sentencing, the Federal Government made
a series of submissions. However, the Federal Government did not suggest in any
of those submissions that custom or cultural background be removed from the
Crimes Act as a sentencing factor. Indeed, the ALRC advised that a February
2006 submission from the Attorney-General's Department 'makes 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'.[90]
3.94
The committee notes that the Federal Government is still considering the
ALRC's report and is yet to make a response. The committee is of the view that,
given that the report relates to an area directly relevant to the Bill, the
response to this report would have provided the Federal Government with a
timely opportunity to address the issues.
3.95
The committee accepts that there was general support among submissions
and witnesses for the provisions of the Bill relating to bail applications and
is not inclined to comment further, subject to the discussion in paragraph 3.98
below about proposed paragraph 15AB(1)(b).
3.96
In relation to sentencing, the Bill has a limited (but not insignificant)
scope in its application to Federal offences. Further, in some respects the Bill
is superfluous because it does little to change the reality of the current
situation – particularly in relation to notions of customary law as a 'defence',
and to the consideration by courts of the circumstances of offenders outside
their criminal behaviour. However, 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.
3.97
The Bill is also likely to have significant consequences if a similar
approach is adopted in the states and territories.[91]
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.
3.98
The committee repeats its concern expressed earlier in this chapter 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.
3.99
The committee is also concerned about the Bill's removal of the phrase 'cultural
background' from paragraph 16A(2)(m) of the Crimes Act. 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 strongly suggests that, in practice, this will not be the case. 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
committee notes further that 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. In addition, the committee notes that, while the Bill's stated aim is
to address violence and child abuse in Indigenous communities, its implications
are much wider.
3.100
The committee considers that the term 'cultural background', inserted
into the Crimes Act in 1994 and based on a recommendation by the ALRC in its
1992 report, Multiculturalism and the Law, is a relevant matter to be
considered by the courts in the sentencing of Federal offenders where
appropriate. In the form it currently takes in the Crimes Act, 'cultural
background' is not relevant to guilt or innocence but in determining an
appropriate sentence.
3.101
In forming this view, the committee notes the ALRC's position in its
1992 report that consideration of 'cultural background' is 'useful' and
'ensure(s) that the offender's cultural background is not overlooked where it
is relevant'.[92]
The committee endorses the reasons behind the ALRC's recommendation that
'cultural background' be specifically inserted into the Crimes Act, namely
that:
- obeying the law may involve violating cultural norms and,
conversely, practising cultural customs and beliefs may constitute a breach of
the criminal law;
- justifiable lack of knowledge should be taken into account in
certain circumstances;
- the subjective or mental element of the test for criminal
liability should take account of different cultural values in certain
circumstances; and
- the objective standard for determining criminal liability may be
inappropriate since, in practice, objective standards often reflect the values
of the dominant group in society and may disadvantage individuals from
different cultural backgrounds who may have different values.[93]
3.102
The committee notes that 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, has not been fully
considered.
3.103
The committee is also mindful of evidence arguing strongly that the Bill
conflicts with every major inquiry into the role of cultural background and
customary law in the Australian legal system, including several ALRC reports
and recommendations of the Royal Commission into Aboriginal Deaths in Custody.
Recommendation 1
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.
Recommendation 2
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.
Recommendation 3
3.106
Subject to the preceding recommendations, the committee recommends that
the Senate pass the Bill.
Senator Marise Payne
Chair
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