Indigenous Law Bulletin
by Jonathon Hunyor
The Commonwealth Crimes Amendment (Bail and Sentencing) Act 2006 (the ‘Bail and Sentencing Act’) commenced on 13 December 2006, amending the Commonwealth Crimes Act 1914 in two main ways:
Similar provisions now apply to bail and sentencing decisions under Northern Territory (‘NT’) law as a result of the Northern Territory National Emergency Response Act 2007 (Cth) (the ‘NTNER Act’).
The Human Rights and Equal Opportunity Commission (‘HREOC’) was one of a number of groups and individuals who opposed the introduction of the Bail and Sentencing Act, arguing that it, and the process surrounding its introduction, were fundamentally flawed. Significantly, rather than these changes being part of a solution to violence and child abuse, HREOC noted its concern that they may be part of the problem because they undermine a potentially powerful source of Indigenous authority.
This article discusses the criticisms made by HREOC of the sentencing provisions of the Bail and Sentencing Act.
The Bail and Sentencing Act was introduced following significant media attention in 2005-06 focused on allegations of widespread family violence and child abuse in remote Aboriginal communities in the NT.
In one high-profile case, a man known as GJ was convicted of the offence of sexual intercourse with a minor. By way of mitigation, the offender claimed that the 14 year-old victim was his promised wife and that customary law sanctioned him having sex with her.
The Council of Australian Governments’ response to this issue was a decision of 14 July 2006 concerning violence and child abuse in Indigenous communities which stated:
The law’s response to family and community violence and sexual abuse must reflect the seriousness of such crimes. COAG agreed that no customary law or cultural practice excuses, justifies, authorises, requires, or lessens the seriousness of violence or sexual abuse. All jurisdictions agree that their laws will reflect this, if necessary by future amendment.
HREOC made clear its view that family violence and the abuse of children or women should not be tolerated in any community and affirmed its support for concrete action to be taken to prevent such violence and abuse. But, it argued, the measures in the Bail and Sentencing Act did not do that.
Typically, a court is required to balance a range of factors when sentencing. These include:
Courts have generally had a very wide discretion so that they can ‘make the punishment fit the crime’.
The measures in the Bail and Sentencing Act and NTNER Act limit a court’s discretion. They prevent a court from taking into account when sentencing for a Commonwealth or NT offence ‘any form of customary law or cultural practice’ as a possible factor in mitigation. The measures are not limited in their application to Indigenous customary law or cultural practice. They are limited, however, in their application to sentencing for offences under Commonwealth and NT law and do not apply to the laws of the States or the Australian Capital Territory (‘ACT’).
So what is wrong with the provisions?
A fundamental concern with the Bail and Sentencing Act was that, despite the complexity of the issues that it raises, it was rushed through. The Bill was referred to a Senate Legal and Constitutional Affairs Committee, but only six days were given for the making of submissions from the date the Inquiry was publicly advertised. The Committee was required to report within one month. This meant that there simply was not sufficient time for the Committee to adequately consult with the range of people who may be able to make an important contribution to debate about the Bail and Sentencing Act.
There was also no consultation with Indigenous people who practice customary law and therefore no opportunity for feedback from the people who are purportedly the subject of the amendments.
The inclusion of equivalent measures in the NTNER Act, forming part of a complex and wide-ranging package of legislation, was not the product of subsequent consultation and that Act (and related legislation) was also rushed through in the climate of a ‘national emergency’. The legislative package (comprising approximately 500 pages of legislation) was referred to the Senate Legal and Constitutional Affairs Committee for inquiry on a Thursday, hearings conducted on the Friday and the report was delivered on the following Monday.
The failure to consult in relation to these provisions becomes more worrying when it is considered that they are not based on, or supported by, any evidenced research. Indeed, they are in conflict with every major inquiry into the role of cultural background and customary law in the Australian legal system; including four inquiries by the Australian Law Reform Commission and inquiries by the New South Wales and, most recently, the Western Australian Law Reform Commissions.
Every study into the issue has concluded that it is important that cultural background and customary law be recognised in the criminal law as a factor relevant to sentencing. The relevant provisions in the Bail and Sentencing Act and the NTNER Act are also contrary to common law sentencing principles that have developed over many years to require courts to take into account material facts about the offender’s cultural background in order to ensure just sentences.
When the likely operation of these provisions is analysed, some fundamental misconceptions about the nature of culture and custom also become apparent.
A basic problem with the Bail and Sentencing Act, and equivalent provisions in the NTNER Act, is that the terms ‘customary law’ and ‘cultural practice’ are not defined.
‘Cultural practice’ would appear to be a very broad term and the Acts provide that ‘any form’ of such practice is covered. The terms potentially cover all aspects of what might be considered to be Australian practices and values. By way of example, it is often said that ‘mateship’ is an important part of Australian culture. In its submission to the Senate Legal and Constitutional Affairs Committee, HREOC asked: would helping a mate be considered a ‘cultural practice’ in Australia and therefore irrelevant in sentencing?
Turning to ‘customary law’, this may also cover a very broad range of social behaviour, including things such as family obligations. It is not clear why matters such as family obligations existing under customary law should be excluded from consideration in sentencing; or how this might help prevent violence against women and children. If, for example, a person has failed to declare overpayment of a welfare benefit because they were helping out a family member in financial difficulty, why shouldn’t this be relevant to sentencing?
Part of the problem with the Bail and Sentencing Act and the equivalent provisions in the NTNER Act is that they are premised on the idea that only some (other) people have ‘culture’; a premise that brings to mind what Patricia Williams has described as the ‘majoritarian privilege of never noticing [oneself]’.
This underlying assumption is revealed by the second reading speech to the Bail and Sentencing Act. It was argued there that the Bail and Sentencing Act would ensure ‘equality before the law’ by removing cultural considerations from the sentencing process. But this argument only works if only some people have ‘culture’.
All Australians, regardless of their ethnic background, have cultural values and may engage in cultural practices that may be relevant to sentencing for a criminal offence. It does not offend equality before the law for such matters to be taken into account in all cases where they are relevant; on the contrary, such an approach provides equality before the law.
The argument also ignores the fact that State and Territory courts that take into account the cultural background of an offender or Indigenous customary law in sentencing do so applying ordinary sentencing principles. It is not a feature of any statutory sentencing regime, or the common law, for different sentencing principles to apply in relation to culture or customary law. As Brennan J in the High Court explained:
The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice.
The danger with the provisions in the Bail and Sentencing Act and the NTNER Act is that they are likely to result in singling out as ‘cultural’ those factors that are seen as differing from the mainstream; while mainstream cultural values are just seen as the norm and will be taken into account as part of the circumstances of the offence. This undermines, rather than promotes, equality. The provisions also undermine the human right to enjoy culture.
The right of minorities to ‘enjoy their own culture’ is a human right recognised by Article 27 of the International Covenant on Civil and Political Rights (‘ICCPR’). This provision applies to indigenous peoples and creates a positive obligation on states to protect such cultures.
This does not mean that the right to enjoy culture comes at the expense of the rights of others. The exercise of the right to enjoy culture must be consistent with other human rights in the ICCPR and the rights of women and children as protected by the International Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child.
The sentencing process has traditionally involved a similar process of balancing the rights, interests and circumstances of the community, the victim and the offender. For the law to automatically exclude cultural practices from the matters to be taken into account is to distort this balancing process in a way inconsistent with the right to enjoy culture.
There is also a likely practical consequence of the interference with the human right to culture that is particularly important in the Indigenous context. This is that the Bail and Sentencing Act and related NTNER Act provisions will undermine important initiatives – such as circle sentencing – that have sought to engage with aspects of Indigenous customary law and practice in a positive way.
Customary law can provide a means through which Indigenous communities can exercise greater self-governance and take greater control over the problems facing their communities. It should not be automatically excluded as irrelevant in the context of sentencing. To do so undermines its legitimacy.
In this respect, the Bail and Sentencing Act and equivalent provisions in the NTNER Act may be part of the problem rather than part of the solution, by detracting from efforts to tap into and reinvigorate Indigenous cultural authority in communities facing serious social problems.
It is also not clear whether these provisions would prevent a court from taking into account customary law in cases where there has been, or will be, ‘payback’. If such matters cannot be taken into account this may result in Indigenous people facing double punishment. That can hardly be expected to instil faith in the legal system amongst communities that have every reason to be cynical.
Professor Mick Dodson has also criticised the Bail and Sentencing Act strongly for being premised on the view that customary law permits child sex abuse; a view he describes as ‘slanderous and… wrong’. Dodson argues that customary law changes and adapts, and that any customary practice that may have served a purpose in the past but is now at odds with the criminal law ‘cannot be tolerated’. But responding by excluding consideration of all customary law ‘is a flawed public relations exercise that potentially exacerbates dysfunction and despair which fuels antisocial behaviour’. He argues:
Confidence grows when people and their cultures are treated with respect. We cannot do that while we continue to be represented as a people, as a culture, on the basis of the worst, most heinous behaviour perpetrated by some our most damaged citizens.
Another criticism of the Bail and Sentencing Act and related provisions of the NTNER Act is that they are simply unnecessary. People who are convicted of criminal offences should be appropriately punished. This is best achieved by ensuring that courts can consider the full range of factors relevant to the commission of the offence, including a person’s culture.
A court is not obliged to give significant weight to cultural factors in reaching an appropriate sentence; these factors may be outweighed by others, such as the need for general deterrence. In The Queen v GJ, for example, the NT Court of Criminal Appeal made it very clear that Aboriginal customary law is simply a factor relevant in sentencing. Southwood J observed:
It has never been the case that the courts of the Northern Territory have given precedence to Aboriginal customary law when it conflicts with the written law of the Northern Territory.
In the event that a judge makes an error in sentencing, the sentence can be appealed.
To ensure that courts only sentence people on the basis of reliable evidence as to customary law and cultural practice, safeguards similar to those that have applied in the Northern Territory are available. Under s 104A of the Sentencing Act (NT), an offender seeking to rely on Aboriginal customary law in mitigation has been required to give notice to the other parties to the proceedings and present any information to the court in the form of evidence on oath, an affidavit or a statutory declaration.
Finally, despite claims that the Bail and Sentencing Act, and the inclusion of similar provisions in the NTNER Act, is a response to violence against women and children in Indigenous communities, the provisions do not address that problem in a meaningful way.
HREOC argued at the time of the introduction of the Bail and Sentencing Act that the legislation distracted from the real solutions to the problem of family violence in Indigenous communities: solutions that address poverty, overcrowding, substance abuse, low levels of education and unemployment. While the NTNER Act and related measures now seek to address some of those issues, the inclusion of these provisions relating to bail and sentencing adds nothing.
The expectation following the July 2006 COAG communiqué was that Commonwealth, State and Territory laws would be amended to exclude considerations of customary law and cultural practice from sentencing. No action has, however, been taken by the States and Territories to put this into effect. Only the Commonwealth’s ability to legislate in relation to the NT has allowed for the introduction of such provisions to apply under the NTNER Act.
There are very good reasons to resist any similar changes to State and ACT sentencing laws and instead focus our efforts on initiatives that will build, rather than undermine, the capacity of Indigenous communities to come to terms with problems such as violence against women and children.
Jonathon Hunyor is the Director of Legal Services, Human Rights and Equal Opportunity Commission.
 Northern Territory National Emergency Response Act 2007 (Cth), ss 90 and 91.
 The author appeared with the Aboriginal and Torres Strait Islander Social Justice Commissioner for HREOC before the Senate Legal and Constitutional Affairs Committee Inquiry into the Crimes Amendment (Bail and Sentencing) Bill 2006. The report of that Inquiry and the submissions made to it are available at: <http://www.aph.gov.au/senate/committee/legcon_ctte/crimes_bail_sentencing/index.htm> . HREOC’s submission is also available at: <http://www.humanrights.gov.au/legal/submissions/crimes_amendment.html> . HREOC’s submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the NTNER Act and related measures is available at: http://humanrights.gov.au/legal/submissions/2007/NTNER_Measures20070810.html.
 The Queen v GJ  NTCCA 20.
 Council of Australian Governments meeting 14 July 2006, Canberra, <http://www.coag.gov.au/meetings.140706/index.htm#indigenous> at 23 May 2007.
 See http://www.aph.gov.au/Senate/committee/legcon_ctte/nt_emergency/info.htm.
 Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders Report No 103 (2006); Australian Law Reform Commission, Multiculturalism and the Law, 1992 Report No 57 (1992); Australian Law Reform Commission, Sentencing, Report No 44 (1988); Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No 31 (1986).
 New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders, Report No 96 (2000).
 Western Australian Law Reform Commission, Aboriginal Customary Laws, Report No 94 (2006).
 Neal v The Queen  HCA 55; (1982) 42 ALR 609, 626 (Brennan J); See also Rogers and Murray v The Queen (1989) 44 A Crim R 301, 307 (Malcom J); R v Fernando (1992) 76 A Crim R 58, 62-63 (Wood J).
 Patricia Williams, Seeing a Color-Blind Future (1997), 7.
 Neal v The Queen  HCA 55; (1982) 42 ALR 609, 626 (Brennan J).
 International Covenant on Civil and Political Rights opened for signature 16 December 1966, art 27 (entered into force 23 March 1976).
 Human Rights Treaty Bodies, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, , UN Doc HRI/GEN/1/Rev.7 (2004), General Comment 23, Article 27, 160.
 Convention on the Elimination of all Forms of Discrimination Against Women, opened for signature 18 December 1979, (entered into force 3 September 1981).
 Convention on the Rights of the Child, opened for signature 20 November 1989, (entered into force 2 September 1990).
 It is noted that HREOC sought to intervene in The Queen v GJ  NTCCA 20 to argue, amongst other things, that in the sentencing process, Aboriginal customary law needs to be balanced against the rights of women and children. HREOC was refused leave to intervene on the basis that the Court already took such matters into account as a part of the sentencing process. HREOC’s submission is available at <http://www.humanrights.gov.au/legal/intervention/queen_gj.html> .
 Mick Dodson, ‘A Reply to Populist Politics on Culture’  AltLawJl 1; (2007) 31 Alternative Law Journal 3.
  NTCCA 20.
 The Queen v GJ  NTCCA 20, .
 In The Queen v GJ  NTCCA 20, for example, the NT Court of Criminal appeal unanimously held that the original sentence (a total of 24 months imprisonment suspended after one month) was manifestly inadequate. The sentence was set aside and a new sentence of 3 years and 11 months imprisonment, to be suspended after serving 18 months, was imposed.
 Council of Australian Governments, above n 4.