Additional Comments by the Australian Greens
1.1
The Greens are not satisfied that this report adequately addresses the
issues and concerns raised in the submissions received, or in the Committee's
extremely brief hearing on the Law and Justice (Cross Border and Other
Amendments) Bill.
1.2
The Committee's report was prepared without reference to the Hansard
Transcript because it had not been produced in a timely fashion. Because it is
inadequately staffed, Hansard transcripts are apparently sometimes outsourced,
in this case negatively impacting the deliberative function of this Committee
and inquiry.
1.3
This report was also prepared before the Attorney General's Department
had responded to requests by two non-Government parties to address concerns and
issues raised by the Aboriginal Legal Rights Movement, for which there was
insufficient time in the hearing. I am very much unsatisfied with response
provided by the Attorney General's Department, which was only offered after I
prompted the Committee Secretary to seek it.
1.4
The Aboriginal Legal Rights Movement (ALRM) raised relevant and
pertinent issues about how the cross border jurisdictional laws between the
Northern Territory, South Australia and Western Australia will practically
operate. Because this Bill will establish cross border jurisdictional laws
principally over Aboriginal land and people, predominantly the Ngaanyatjarra,
Pitjantjatjara and Yunkunytjatjara people, the concerns of the ALRM are worthy
of a proper response.
1.5
However, because the ALRM in various parts of their submission used the
South Australia experience and laws as a prism through which to view the impact
of this Bill, their concerns are simply and conveniently dismissed. The fact
is that this federal Bill will give authority and will facilitate the operation
of laws passed on the state level. As such the case study offered by the ALRM
is actually illustrative of problems that may arise and should have prompted
more thoughtful and thorough answers than those received.
1.6
The ALRM raised general practical concerns about the adequacy of
audiovisual and audio equipment and identified the
need to ensure provision of translations
into the languages of people facing court. They also raised questions about
how this complex criminal legislation might enable forum shopping.
1.7
The ALRM also raised specific concerns about how the legislation
empowers cross border magistrates to be able to deal with an offender under
three sets of laws, and therefore three different appeal mechanisms might be
chosen from. While efficiencies are acknowledged in that a person could have
all outstanding criminal matters dealt with at once, this could also produce a
situation where someone could be coerced into aggregating files for the sake of
administrative convenience, attracting an increased likelihood of custodial
sentences being imposed.
1.8
The ALRM pointed out the lack of clarity about the effect of the cross
border legislation on compulsory custodial notifications, an essential feature
of Aboriginal legal representation. The process of notification among the
various state law enforcement agencies is also not clarified by this Bill. The
need for a uniform definition of residence across the three jurisdictions is
identified as a useful addition to the federal bill, given the difficulty of
applying it to a nomadic people. These issues apply to the area in question,
and are relevant to this Bill.
1.9
This appears to be a federal bill that is meant to enable and facilitate
the collaborative work of three state jurisdictions being rushed through before
two of the three states in question have passed their legislation. Surely the
function of a federal bill should be to either establish the criteria and
framework for the state bills, or be fully informed of the content and
procedures spelled out in the state legislation. It should seek to harmonise
and coordinate their approach and address any gaps identified by the states.
What we have in this bill and process is neither.
1.10
Finally, I would like to make an observation about the extent to which
this approach will ameliorate the impact of violence against women in the NPY
lands, apparently the major motivation for this legislation. Because it is
cited as such, it is worth examining to what extent this approach does address
violence against women.
1.11
The Greens believe that everything should be done to stop violence
against women, which is experienced across Australia at shamefully high levels.
The 2005 survey of the Bureau of Statistics estimated that thirty-three per cent – one in three – of all Australian
women have experienced physical violence since the age of fifteen. Nineteen
per cent – one in five – have experienced sexual violence since the age of
fifteen. Forty-nine per cent of female victims of homicide are killed
as a result of a domestic altercation as compared to fifteen per cent of male
victims. In Australia, domestic violence puts more women aged fifteen to
forty-four at risk of ill-health and premature death than any other risk
factor. This constitutes an epidemic of violence
against women in our culture. Enhancing the resources and mandate of
police, magistrates, enforcement agents, community corrections offices and
prisons is not the only priority or strategy in preventing this violence
against women.
1.12
While it most certainly does help when the police recognise violence
against women as a crime, and respond when women need assistance, too often
they do not take this issue seriously, and judges frequently do not apply the
laws that already exist. But it also helps when governments provide services
and shelters so that women can escape and heal from violence. Coping with
violence on this scale is about more than beefing up law enforcement and
putting more men in jail, it's about addressing the fact that violence against
women by Australian men has become normalised and legitimised, and that sex
discrimination is a societal problem that is structurally and culturally
embedded. It is also about addressing the underlying poverty experienced by
women, and in the case of the NPY lands, by Aboriginal women, which strongly
effects women's ability to make choices about leaving violent relationships.
1.13
What women in this particular region have identified as a problem is
that they have significantly reduced access to legal representation, and
therefore justice. Women in the NPY lands are not able to access the services
offered by the Aboriginal Legal Service because it is very often providing
legal representation to the perpetrator. What needs to come hand in hand with
efforts to enhance the capacities of law enforcement to deal with perpetrators
of violence against women are legal and support services for the victims.
1.14
The Aboriginal and Torres Strait Islander Legal Services (ATSILS) has
calculated its real term funding loss since 1996 at just under 40 per cent.
This does not take into account unmet and increased need due to population
increases and demographic changes, or changes to the substantive criminal law
that particularly affects indigenous people. Funding increases need to factor
in the issues of language, culture, literacy, remoteness and incarceration
rates into the costs of service delivery. This indicates the need to take into
account the need for Aboriginal Women's Legal Services as research has indicated
that indigenous people, especially women, are dissuaded from approaching
mainstream legal services.
Senator Scott Ludlam
Australian Greens
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