Wright, Sen Penny

Senator WRIGHT (South Australia) (01:50): I move Australian Greens amendment (7) on sheet 7222: (7) Schedule 4, items 1 to 9, page 21 (line 4) to page 24 (line 10), omit the items, substitute: 1 Subsection 15AB(1) Repeal the subsection, substitute: (1) In determining whether to grant bail to a person charged with, or convicted of, an offence against a law of the Commonwealth, or in determining conditions to which bail granted to such a person should be subject, a bail authority must take into consideration the potential impact of granting bail on: (a) any person against whom the offence is, or was, alleged to have been committed; and (b) any witness, or potential witness, in proceedings relating to the alleged offence, or offence. 2 Subsection 15AB(2) Omit "subparagraph (1)(a)(i) or (ii)", substitute "paragraph (1)(a) or (b)". 3 Subsection 15AB(3) Repeal the subsection. 4 Subsections 16A(2A) and (2B) Repeal the subsections. 5 Application of amendments (1) The amendments made by items 1, 2 and 3 of this Schedule apply to a proceeding relating to bail that: (a) is initiated on or after commencement; and (b) is not an appeal against a decision of a bail authority that was made before commencement. (2) The amendment made by item 4 of this Schedule applies to a proceeding relating to sentencing that: (a) is initiated on or after commencement; and (b) is not an appeal against a sentence that was imposed before commencement. The government's bill seeks to extend the Commonwealth prohibition of consideration of customary law in bail and sentencing to the Northern Territory, except in heritage related crime where customary law can be considered. This Greens amendment replaces the whole of the government's current schedule with a new schedule. The amended schedule removes existing laws which prohibit consideration of customary law in bail and sentencing in relation to Commonwealth offences and prevents the extension of this prohibition to Northern Territory offences. The result of this amendment is that the prohibition on consideration of customary law in bail and sentencing would be entirely removed. Judges would be allowed to consider customary law federally and in the Northern Territory. The Australian Greens support the provisions which will allow consideration of cultural practices and customary practices in bail or sentencing decisions for offences relating to cultural heritage. However, we believe the legislation does not go far enough. The existing provisions, implemented as part of the Northern Territory intervention, remove the discretion of judges to consider Aboriginal customary law and cultural practices and, as such, are deeply discriminatory and contribute to already climbing rates of incarceration and essentially undermine Aboriginal culture. Numerous submissions and evidence have pointed to the inherent inequality in prohibiting judges from considering Aboriginal culture, when the dominant culture is being considered all the time in our courts. Representatives from the Northern Australian Aboriginal Justice Agency commented on this in their evidence before the community affairs inquiry: There is an American academic, Patricia Williams she is a black woman who describes the majoritarian privilege of not noticing one's self. That is the danger with this sort of law, that we, being white fellows, do not recognise our culture and our custom as we think that is the status quo. When it is Aboriginal people it is custom and culture and it is excluded. That is why at the core of this law there is something that really should trouble us. That sentiment is supported by evidence from the Central Australian Aboriginal Legal Aid Service: We strongly oppose the exclusion of cultural practice and customary law from bail and sentencing considerations … Basically, our position is that this puts Aboriginal people into a different position for sentencing and bail purposes than any other member of the population when they come before the courts. It is a discriminatory practice that needs to be abolished. The argument that this gives better protection to Aboriginal women and children is a fallacious argument and in some instances people will be worse off because of this particular provision. Our strong position is that that section of the bill should be deleted. Chief Justice Riley, of the Supreme Court of the Northern Territory, has also commented on the negative impact of the law. He said: … the court is not entitled to consider why an offender has offended and pass an appropriate sentence. The court is required to ignore the actual circumstances of the offending." This "means that the court must sentence in partial factual vacuum … Aboriginal offenders do not enjoy the same rights as offenders from other sections of the community. It seems to me this is a backwards step. It is well known that the Northern Territory has the highest imprisonment rates in the country and this rate is on the rise. In 2010-11 the Northern Territory had the highest proportionate and percentage increase in prison numbers throughout Australia. Removing judicial discretion to consider mitigating factors in bail and sentencing will do nothing to address this serious issue. As APO Northern Territory noted: A system that inhibits the discretion of the court and the power of the experienced and qualified decision maker to consider and weigh up all relevant facts, can only contribute to this alarming and increasing imprisonment rate. Finally, prohibiting the consideration of customary law sends a clear message to Aboriginal people that their culture does not matter. This is a serious dismissal and stands in stark contrast to international law and best practice, which shows the vital role culture plays in improving outcomes for indigenous people. Ms Rosas, Director of NAAJA, commented on this issue: For Aboriginal people before the courts, the law still excludes our customary law and culture from bail and sentencing. This says to our people that our customs and culture do not count or that they are part of the problem. This is insulting and offensive to us as Aboriginal people. The law says to the courts that they cannot apply the ordinary principles for setting their sentences. The courts cannot take into account all relevant factors when sentencing Aboriginal people. This is unfair and unjust. These provisions must be scrapped. Instead, government should be working with elders to take responsibility for offending in their communities. This was a sentiment that was echoed by the Aboriginal Peak Organisations Northern Territory. The emphasis on culture that is often observed in government consultations with Aboriginal people must be recognised. Aboriginal customary law and practice has the potential to be used as a means of empowering Aboriginal people to take responsibility for offending within their own communities. Its exclusion sends the wrong message, that Aboriginal culture and customs are not valued, and is in direct conflict with the expressions of Aboriginal people that culture must be strengthened. These provisions, taken from the intervention legislation and slightly softened, are counterproductive to the government's own aims of improving the wellbeing of Aboriginal people in the Northern Territory and building a stronger future. They undermine Aboriginal culture and are clearly discriminatory. What is really interesting to me is an article I have seen, written in 2006, which was a commentary on the way these matters were incorporated into the original intervention legislation. It describes Minister Brough as using 'a shocking level of violence' as the basis for saying customary law should be abolished altogether and immediately. This article decries that decision and says: 'Over the last 30 years customary law has been the subject of careful consideration by Commonwealth, Western Australian, Northern Territory and New South Wales law reform commissions. Some of these reports have been acted upon, others not. That work should not be swept away in a frenzy of rhetoric or media attention unless close scrutiny shows us that the current system is causing problems. The article goes on to say: 'Customary law is now taken into account in all sorts of civil matters. For some people it can lessen the sense of disenfranchisement and can be a valuable step towards reconciliation. Yet the greatest public misunderstanding is in the criminal area, so let's be clear: customary law is not an excuse or defence to violent crimes. Customary law can only be taken into account in mitigation of sentence.' That is the Greens argument exactly. The article continues: 'The age of the accused, their cultural background and any traditional punishment can all have an effect on the sentence ordered by the court.' The writer of this article goes on to say: 'To lawyers, of course, this is not an unusual concept. The age, background, religion, contrition et cetera are always taken into account and argued in mitigation for any defendant convicted of any crime. The conviction and sentence are always separate. The factors that caused a crime or go to explain the defendant's conduct in any way will always be considered. Should this right be denied to Indigenous people when it applies to everyone else? That would not be fair.' Interestingly enough, it was actually the current Attorney-General, Minister Nicola Roxon, the shadow Attorney-General at the time, who wrote that interesting article. Isn't it sad how views change over time? There is still time for her to realise the mistake that has been made, though, in this legislative drafting. I urge the Senate to support our amendment to provide appropriate discretion to the court to consider customary law.