Editors --- "Sentencing Amendment (Aboriginal Customary Law) Act 2004 (NT) - Digest" [2005] AUIndigLawRpr 11; (2005) 9(1) Australian Indigenous Law Reporter 69

• Sentencing Amendment (Aboriginal Customary Law) Act 2004 (Nt)
• An Act To Amend The Sentencing Act (Nt).
• Introduction
• Sentencing Amendment (Aboriginal Customary Law) Act 2004
• 1. Short Title
• 2. Commencement
• 3. Principal Act
• 4. New Section 104a
• 5. New Part Heading
• 6. New Part 13

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Legislative Developments - Australia

Sentencing Amendment (Aboriginal Customary Law) Act 2004 (NT)

Act No 1 of 2005

Assented to 14 January 2005

Commenced on 16 February 2005

An Act to amend the Sentencing Act (NT).

Introduction

The purpose of the Sentencing Amendment (Aboriginal Customary Law) Act 2004 (NT) is to ensure that courts are provided with full tested evidence about relevant customary law issues when they are sentencing an offender. The Act reflects a recommendation made in the Report of the Committee of Inquiry into Aboriginal Customary Law, which was released by the Northern Territory Law Reform Committee in November 2003.

Although the Act has been criticised by some lawyers as being likely to slow down court processes,[1] Northern Territory courts have long taken into account evidence of relevant customary law when passing sentences on Indigenous people. The Act now serves to provide a formal mechanism for raising customary law issues and hearing the views of community members.

Sentencing Amendment (Aboriginal Customary Law) Act 2004

The Legislative Assembly of the Northern Territory enacts as follows:

1. Short title

This Act may be cited as the Sentencing Amendment (Aboriginal Customary Law) Act 2004.

2. Commencement

This Act comes into operation on the date fixed by the Administrator by notice in the Gazette.

3. Principal Act

The Sentencing Act is in this Act referred to as the Principal Act.

4. New section 104A

The Principal Act is amended by inserting after section 104 the following:

“104A Information on Aboriginal customary law and community views

(1) This section applies in relation to the receipt of information about any of the following matters by a court before it passes a sentence on an offender:

(a) an aspect of Aboriginal customary law (including any punishment or restitution under that law) that may be relevant to the offender or the offence concerned;

(b) views expressed by members of an Aboriginal community about the offender or the offence concerned.

(2) The court may only receive the information –

(a) from a party to the proceedings; and

(b) for the purposes of enabling the court to impose a proper sentence or to make a proper order for restitution or compensation (as mentioned in section 104(1) and (2)).

(3) In addition, and despite any other provisions, the court may only receive the information if it is presented to the court as follows:

(a) the party to the proceedings that wishes to present the information (‘the first party’) gives notice about the presentation to each of the other parties to the proceedings;

(b) the notice outlines the substance of the information;

(c) the notice is given before the first party makes any submission about sentencing the offender;

(d) each of the other parties has a reasonable opportunity to respond to the information;

(e) the information is presented to the court in the form of evidence on oath, an affidavit or a statutory declaration.

(4) In this section –

‘Aboriginal community’ includes a community of Torres Strait Islanders;

‘Aboriginal customary law’ includes a customary law of the Torres Strait Islanders.”.

5. New Part heading

The Principal Act is amended by inserting before section 129 the following:

“Part 12 – Repeal and transitional matters for Sentencing ACT 1995”.

6. New Part 13

The Principal Act is amended by inserting after section 130 the following:

“Part 13 – transitional matters for Sentencing Amendment (Aboriginal Customary Law) Act 2004

131. Application of section 104A

Section 104A applies in relation to information presented to a court after the commencement of the Sentencing Amendment (Aboriginal Customary Law) Act 2004.”.

The text of the Report of the Committee of Inquiry into Aboriginal Customary Law was extracted in the Australian Indigenous Law Reporter 8.3. The full text of the Report is available online at <http://www.nt.gov.au/justice/docs/lawmake/ntlrc_final_report.pdf> .

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^[1] ‘Customary Law Evidence Changes will Slow Courts: Lawyer’, ABC News Online (Australia), 4 December 2004, available online at <http://www.abc.net.au/news/newsitems/200412/s1258026.htm> .