Evans, Sen Christopher

Senator CHRIS EVANS (Western Australia—Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (01:59): In response to Senator Wright, I suspect her grasp of the legal issues are far better than mine—and I suspect Senator Payne is in the same boat. I will do my best to explain why the government is not prepared to support the amendment. It is essentially because it would have the effect of repealing the prohibition on considering customary law in bail and sentencing. That was a measure that we see as consistent with the Council of Australian Government's agreement following the 2006 Indigenous summit on violence and child abuse in Indigenous communities where there was concern that customary law arguments were being used to undermine or argue that crimes should be treated less seriously. The view was taken that, while customary law, cultural practice, ought to be able to be considered in a court hearing, when it came to the question of bail and sentencing, customary law should not be used in a way that might undermine the seriousness of the issue before the court. What we have sought to do is continue that approach and reject the Greens amendment. That is not to say though that people before the courts cannot raise their cultural issues—for instance, the example given to me is that it does not prevent an Indigenous person arguing that they ought to be given bail in order to attend a funeral; that it does not stop people introducing cultural issues into evidence or argument before the court. But the prohibition is on it being considered in terms of a consideration of bail and sentencing because, as I say, the debate in Australia around that time was about concern that the seriousness of things like abduction of women et cetera was being defended on the basis of customary practice and that the seriousness of an offence was being undermined. As a result of that sort of debate, this provision came into being. The government thinks it is an appropriate provision, so we will not support the Green amendment. I want to make the point that this bill seeks to improve the legislation in recognising the consequences for offence provisions that protect cultural heritage, including sacred sites and heritage objects. I understand there has been some litigation where this became an issue and this is an extra measure designed to assist in that regard, but we cannot accept the Green amendment. I make the point also that we reject the claims that it is discriminatory. Courts can interpret what is regarded as cultural practice, and so it would apply to people of different faiths and cultures more broadly, so I do not see it as being a discriminatory measure at all. Those are the reasons why the government cannot support the Green amendment. The CHAIRMAN: The question is that Australian Greens amendment (7) on sheet 7222 be agreed to.