SENTENCING AMENDMENT (CULTURAL PRACTICE AND CUSTOMARY LAW) BILL 2006 Second Reading Speech

Northern Territory Second Reading Speeches

SENTENCING AMENDMENT (CULTURAL PRACTICE AND CUSTOMARY LAW) BILL 2006

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Bill presented and read a first time.

Ms CARNEY (Opposition Leader): Mr Deputy Speaker, I move that the bill be now read a second time.

This is the third time a bill similar to this has been introduced. Eternally optimistic, it could be third time lucky. Members of the Assembly will recall, for anyone who was interested, and it was very difficult to detect the level of interest on the government’s side given that no-one except the Attorney-General spoke on it. Very disappointing, given the five indigenous members of the government, that is the five included on the now famous memo written by the member for Millner and, according to one media report, leaked by the member for Macdonnell. That was just in case I needed to refresh your memories; that was the memo in which the member for Millner expressed his frustration, dissatisfaction and so on with the Chief Minister, and also in which he referred to a level of hate in the community against the Chief Minister.

It was very interesting, on the last occasion, that none of the indigenous members of parliament spoke, and particularly disappointing that none of the women members of parliament on the Labor side spoke. Perhaps next time around, when we get to further debating this bill at the next General Business Day, we might hear from them. Although, we know how the Chief Minister likes to keep a gag on some of her members, although clearly it failed with the member for Millner.

In any case, the objections of the government have changed over the years I have been presenting this bill. The first time round, it was basically a philosophical one. It was, no, no, no you cannot do this because it is discriminatory. They referred at that time, I believe it was 2003, to the Territory’s Anti-Discrimination Act. I suggested at that time they change it. In 2005, the Attorney-General had different reasons for opposing the bill, and that was that the bill if enacted would offend the provisions of the Commonwealth Racial Discrimination Act.

Accordingly, and having dealt with and spoken with the federal Attorney-General, Philip Ruddock about this matter, I have decided to propose a slightly different bill so that, and our advice is that even if we accepted that the second bill I introduced last year did offend the provisions of the Commonwealth Racial Discrimination Act, then this new bill would not. The Attorney-General may well say that proposed new section 5(5)(b) may offend the Commonwealth Racial Discrimination Act. In any event, if that is the case, he could always propose an amendment to this bill so that we are left with the expression in subclause (a) of: ‘a cultural practice of a community of which the offender is a member’. I wrote to the federal Attorney-General, and thank him and his office for their assistance.

It is interesting that since the last time this parliament sat, there has continued to be a very passionate, at times, national debate about violence in Aboriginal communities. We have seen the Chief Minister embark on her kneejerk response to the criticism levelled at her about her general incompetence, no doubt shared by the member for Millner and others, but as a result of those criticisms, she cobbled together an inquiry which, as members know, sat around doing nothing due to the lack of leadership demonstrated by the Chief Minister. It sat around and did nothing for the first two months.

The debate about the inquiry is for another day, but I make the point that there has been a national debate and discussion about these issues. Indeed, it has been heartening to see the issue of customary law being talked about by politicians other than me. It has been great to see the issue of customary law talked about by so many other Australians. That, I guess over time, will create pressure on this government ultimately, so that it can remove its philosophical and other objections to removing the veil of customary law for sentencing purposes.

Since this parliament was last in session, there was a meeting of the Council of Australian Governments, referred to as COAG. That was a meeting unlike the National Summit on Indigenous Affairs called by Mal Brought which was not attended by the Chief Minister. The Chief Minister was good enough to turn up to COAG. The Law Council of Australia wrote a submission to COAG which I read with interest. I was asked to write an opinion piece for The Australian newspaper, which I did on 21 July 2006. I was asked specifically to comment on the Law Council’s submission because it involved, inter alia, recommendations about customary law. I said in that article, and I quote:

Having read the Law Council's submission, which was prepared for the Council of Australian Governments, it is clear to me that the insidious way customary law is used to benefit violent Aboriginal men is conveniently ignored or, perhaps, simply not understood. This may explain why there has been an hysterical rejection of any consideration of the removal of customary law for sentencing purposes by some in the legal profession.

The Law Council's submission states that “there has been no case in which the court has accepted such evidence [customary law] as justification or excuse for violent behaviour”'. If this were the case, why then did all governments deem it necessary to agree at COAG that “no customary law or cultural practice excuses, justifies, authorises, requires, or lessens the seriousness of violence or sexual abuse”, and why did they agree that the laws of all jurisdictions will reflect this?

I went on to say:

Put simply, if customary law is not meant to “lessen the seriousness of violence” why do violent Aboriginal men seek to rely on it for sentencing purposes when the aim of doing so is to lessen the sentence?

There has been a view held by some in the legal profession and some other commentators - and no doubt it is a view shared, sadly, by members of this government - that customary law is not used very often. That is not the case, and it is mischievous in the extreme to make that assertion. I well know who has made the assertion. Whether I agree politically or legally with some of those people is neither here nor there. The fact is, if any person walks into a court in the Northern Territory, they will see, in its very wide spectrum, customary law being used every day of the week. It is used in its many guises. I will give some examples of that shortly.

However, if I go back momentarily, members will recall that what I and, indeed, others are calling for, a national debate about violence in indigenous communities was sparked by an interview on 15 May 2006 by Dr Nanette Rogers, Crown Prosecutor in Alice Springs. She said in that interview, when talking about her research for her doctoral thesis that she was:

… taken aback at how much emphasis was placed on Aboriginal customary law in terms of placing the offender in the best light, and how it closed off the voices of Aboriginal women.

She went on to say that

… sometimes Aboriginal cultural practices do not benefit the victims. They benefit, more often than not, the offender, and if it means criticising those Aboriginal practices that constrain victims or witnesses from giving evidence and ensure the ability of the offender to keep behaving in exactly the [same] way, then why should there be an Aboriginal cultural practice that sustains that?

Indeed, why should our legal system similarly sustain that as well? I have not heard one person in this country call Nannette Rogers a liar. That is because she is not. She is a very experienced Crown prosecutor. If people do not believe what I say about customary law then you should look at people like Nannette Rogers, and if you will not take my word for it, you should take hers. I should say that Dr Nannette Rogers has a PhD. She knows this stuff and that is why her interview sparked a national debate.

It is important that I outline how customary law in all its guises is used frequently in the Territory courts. It is used in an attempt to reduce or excuse an offender’s criminality. Defence lawyers urge the court to take into account the fact that some violent men have been subjected to payback and they ask the court to take that into account when sentencing. Sometimes they argue that the woman victim referred to men’s business which made her attacker angry which is why he beat her. On other occasions courts hear how violent men are initiated and have ceremonial responsibilities and are asked to take these into account when sentencing. Those are mere examples of how customary law is used, and I stress in all its guises, in courts of the Northern Territory every day of the week.

When writing about a particularly violent case in Alice Springs in 2004 for The Bulletin, Paul Toohey quoted a Central Australian lawyer who said when referring to the offender: ‘Just because he lives out bush and hunts and dances, so f***ing what’.

There is nothing culturally appropriate about violence. Customary law in all its guises should be precluded from the court’s deliberations when sentencing. I have said it again and I will continue to say it: it is an unconscionable mechanism by which the criminality of an offender is reduced or excused and it should not be used to mitigate a sentence for crimes of physical or sexual violence. It is a veil behind which violent Aboriginal men hide and politicians and lawyers should not sanction its continued use.

Dr Rogers also talked about a culture of violence in some, though not all, indigenous communities. If ever anyone doubted there was a culture of violence and, somewhat miraculously, apparently some people do doubt that there is a culture of violence in some Aboriginal communities in the Northern Territory, they should have had the same sort of discussion I did with a police officer, some time ago, who relayed to me what a violent husband told him about the assault on his wife. He said, and I quote: ‘I thought she’d eventually wake up after I bashed her; she usually does’. My point is if such a man hunts, dances, or has ceremonial responsibilities, or lives out bush, what possible difference should it make? In other words, it is a veil behind which violent Aboriginal men are able to hide and use as an excuse to reduce their sentences. Surely that is not something that civilised human beings should continue to sanction.

Getting back to the Law Council of Australia’s submission for COAG, the submission concluded saying that removing the court’s discretion to consider customary will ‘unfairly discriminate against indigenous Australians’.

In the article I wrote for The Australian on 21 July 2006, I said:

Opponents to the removal of customary law from sentencing assert that to do so is to impinge on a person's human rights. One wonders whose human rights they prefer: violent Aboriginal men, or the women and children who are their victims.

The Law Council submission ignores the culture of violence that is destroying many Aboriginal communities. It somewhat dismissively suggests that anyone who has been critical of the effects of customary law in the criminal justice system should have a Bex and a good lie down. If only Aboriginal women and children could do just that.

I have argued the case for the removal of customary law in sentencing twice before. This is my third time. I have tried to address the objections raised by the Attorney-General, and only raised by the Attorney-General. Who knows? This could be another point of conflict within government. Maybe half a dozen people on the other side do have different views. Maybe this is another rift in the Cabinet. Maybe that is why no-one else stood up to talk in this important debate about violence in Aboriginal communities - not one indigenous member, not one indigenous woman member, no woman member. I do not think they ever have. I will be able to level at them claims of hypocrisy if they want to stand up outside this Chamber and talk about issues involving violence in Aboriginal communities, if they are not able to take their place in this House of Assembly and not get involved because this is where it happens.

Because of the numbers, I do not expect much to happen in relation to this legislation. However, behind closed doors, cracks are starting to show and things are leaking out, thanks to the memo and so on, but you would have thought there would at least have been some robust debate in the past. I hope and implore government members to embark on robust debate in the future so that we can get a better result.

Are there other things to do in indigenous communities? Clearly, but this is, as I have said before, something practical that we as legislators can do. We have had a national summit. COAG spent, I think, 45 seconds on it, ultimately. So we have had a national summit, we have had COAG. We now have an inquiry into sexual abuse in the community.

Politicians, governments and other experts will continue to propose various solutions. Is this not something concrete that we can do now? Is it not worth sending a symbolic gesture to the women and children who are the victims of these violent Aboriginal men who then go to our court houses and hide behind Aboriginal customary law or cultural practices, as I have called it, for the purposes of the bill? I have made plenty of comments in the past. I will not bother repeating them other than to say this bill, Attorney-General, is slightly different, having regard to a cultural practice of a community of which the offender is a member. I am saddened to say that I know what will happen with this bill, but mark my words, Attorney-General, by the time I am an older woman, this will be changed.

Debate adjourned.

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