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Wednesday, 15 August 2007
Page: 140


Senator BARTLETT (7:00 PM) —The Australian Democrats oppose clauses 90 and 91 in the following terms:

(6)    Clause 90, page 68 (lines 2 to 32), TO BE OPPOSED.

(7)    Clause 91, page 69 (lines 1 to 11), TO BE OPPOSED.

These clauses relate to customary law. When the issue has been presented in a very shallow way, it can seem quite appealing, but when you look at the substance of the issue it is a very serious problem. These two clauses basically prevent a bail authority or a court from having any regard to customary law or cultural practices when considering bail applications or sentencing—so Aboriginal people in the Northern Territory are prevented from having customary law or cultural practices taken into account when bail applications or sentencing occurs. We had this debate with regard to a piece of legislation, I think it was last year, to amend the Crimes Act. It was opposed by the Democrats and I am fairly sure it was opposed by the Greens—if not, I am sure I will be corrected. I am also fairly sure that it was opposed by Labor—and I am sure they will correct me if I am wrong. It was opposed because it was unjust and discriminatory, and there was no evidence that it was necessary.

One or two examples of what would appear to be unreasonable sentencing have been pointed to over the years—where a judge had given undue weight to what was presented as a cultural practice. Decisions such as these are usually overturned on appeal to a higher court, which is the court process doing its job; however, we could all point to sentencing decisions made in courts all around the country where the sentence did not seem adequate, where it was either too extreme or too lenient or where issues were taken into account such that people thought that undue weight had been given to other issues.

These clauses mean that Aboriginal people in the Northern Territory are the only ones in the country who cannot have their cultural practices taken into account. I can have my cultural practice taken into account if I ever end up being sentenced—fortunately, my cultural practices are rather more embedded in the assumptions that are usually taken into account by courts, not that I am planning to be before one! The practical consequence is that cultural practices are not able to be taken into account, and this is a specific intent which produces a discriminatory result.

It also means a weakening of the tradition of customary law and cultural practice. Again I would point to commentary by Indigenous people, including those who have in the broad supported the government’s actions here but have said that it is crucial that Aboriginal culture be strengthened through this intervention process because that is an essential part of this process. The intervention will not work in the long term unless Aboriginal culture and norms are strengthened, not weakened. These two clauses clearly weaken Aboriginal culture by dismissing it as a factor even deserving of acknowledgement. That, I would argue, is counterproductive. These clauses implement the government’s ideological agenda, which was already in place anyway, and the government is using them as an excuse.

This is about sentencing and bail, so it will not in any way prevent child abuse in the short term. One can argue about whether the lengths of sentences may or may not have a longer term impact on reducing child abuse. One could have not just a philosophical debate but, more importantly, an evidence based debate about what works and what does not in reducing recidivism in child abuse offenders. For that reason, I would ask the minister a question in this section which I think is relevant to these items. I have made the case about why these clauses should be removed but the other point I would make—because I do recognise that the court process does have a role, whether it be bail or sentencing—is that I simply do not believe that cultural practices should be excluded from things that can be taken into account.

The other point that has to be made is that there is a lot more to it than that. One question I would ask the minister, because it does link to this topic, is about the resources and the plans that are being developed for the rehabilitation of offenders. I am not saying they should not be locked up; I am asking what programs are being funded to rehabilitate the offenders, whether they be child sex offenders or others, for that matter. I appreciate that is a very difficult area but, amongst the many people I have spoken to about this issue in the last month or so, some have pointed me to what appear to be very successful programs with indigenous peoples in Canada. They work on a range of processes to reduce the risk of people reoffending, whether they are child sex offenders or perpetrators of other acts of violence. So that is an important part of achieving long-term success in this area. Eventually, no matter how long you lock people up for—whether or not it is as a consequence of these sections going through—eventually most of them come out at the end of it and they are likely to go back into the communities. We need to have programs in place not just for offenders but also for communities to help them to deal with people after they have been released.