INDIGENOUS AFFAIRS
Sentencing laws will further alienate indigenous Australians
Frank Quinlan October 16, 2006
 Just last week, the coroner’s report into the death in custody of a Palm Island man, Mulrunji, called for a major overhaul of how the justice system deals with indigenous Australians.
Yet in the same week, hearings commenced for an inquiry by the Senate Committee on Legal and Constitutional Affairs, into the Crime Amendment (Bail and Sentencing) Bill 2006, a bill that will increase the potential for injustice in sentencing decisions affecting indigenous people and other cultural minorities.
The purported aim of the legislation is to amend the sentencing and bail provisions in the Crimes Act 1914, in line with the decision made by the Council of Australian Governments (CoAG) on 14 July this year, following the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities in June.
But far from addressing the problem of violence in indigenous communities, the bill risks further discrimination against cultural minorities, and should not be passed in its current form.
Under the proposed changes, judges passing sentence on federal offences will no longer be required to consider a person’s "cultural background", even where this might be considered relevant. Moreover, sentencing judges will not be allowed to take account of “customary practices” and customary law.
The current reference to "cultural background" guides courts to consider this as one factor, among many others, in the balancing process that is an essential part of sentencing. We do not agree with the suggestion contained in the supporting material, that the current law contains an unnecessary emphasis on "cultural background".
 While there is a serious need to address the incidence of violent crime in indigenous communities, this bill will not address the problem.
We agree with CoAG that 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.
However, sentencing judges must be free to take account of cultural background, customary law and cultural practices and background, when determining appropriate penalties. In fact, the law ought to encourage them to do so.
Significantly, of the ten publicly available submissions to the Senate Inquiry, not one supports the passage of the bill.
The bill is at odds with the findings of several major reports, including the 1991 report of the Royal Commission into Aboriginal Deaths in Custody; the 1986 report of the Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws; the Law Reform Commission of Western Australia’s Aboriginal Customary Laws and the NSW Law Reform Commission’s The Recognition of Aboriginal Customary Laws.
The Royal Commission into Aboriginal Deaths in Custody in 1991 stressed the importance of reducing the over-representation of Aboriginal people in custody.
 It recommended "that governments and Aboriginal organisations recognise that the problems affecting Aboriginal juveniles are so widespread, and have such potentially disastrous repercussions for the future, that there is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families and communities, whether by being declared to be in need of care, detained, imprisoned or otherwise".
However, indigenous people, and those from disadvantaged backgrounds, are increasingly and disproportionately represented in the prison population. The proportion of indigenous people in the total prison population increased from 14 per cent in 1991 to 22 per cent in 2005.
Criminal justice is inextricably linked to social justice. The overrepresentation of indigenous people in the criminal justice system is among the factors leading to indigenous disadvantage. We know for example, that time in prison reduces employment prospects.
It's concerning that the motivations underlying the bill, no matter how well-intentioned, may be grounded in the very misconceptions of Aboriginal customary law, against which the NSW Law Reform Commission warned.
 In particular, there appears to be an operating assumption that judges and magistrates may take account of Aboriginal customary law, in such a way as to "excuse" or lessen the seriousness of offences involving violence against women.
Even apart from grave doubts about whether this assumption accurately reflects Aboriginal customary law, the appeals process is the most effective means of redressing any individual inappropriate sentencing decision.
The senate committee’s report on this inquiry must stress the urgent need for action to address underlying causes of violence in indigenous communities, especially poverty, social exclusion and inadequate support for families in crisis.
The Commonwealth Government must ensure that any legislative action it develops in response to the July 2006 CoAG Communique, is measured and just. It must also ensure that any such action will not have unintended consequences which might further disadvantage some of the most vulnerable people in the Australian community.
An inquiry of just four weeks, with limited opportunity for public input and debate, does not achieve this, and does a disservice to the importance of the issues under consideration.
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SUBMITTED COMMENTS
Dorcliff Sopsum03 Oct 2006
What measures do you suggest, Mr. Quinlan. Mutual Obligation are the two most important words to ever be spoken by our Prime Minister. As a nurse I totally agree that "welfare to work"
is a positive initiative.
Frank Quinlan04 Oct 2006
Thanks for your comment, Dorcliff. Catholic Social Services Australia supports the principle of "mutual obligation" and remains a partner with government on many programs that are built on this idea. Our main concern at the current program is that increased "participation requirements" and threats of harsh penalties are being applied to many disadvantaged job seekers. However, when those same job seekers are classified as "highly disadvantaged" by the government, services that they are eligible for are not provided to them. In some cases people are placed on waiting lists of 9 months or more! We are just saying "mutual obligation" is a two way street. We can expect more of people when we have given them the skills, education, support and respect they need. We are currently failing to meet our obligation to do this.
There is a risk, we think, that some will end up blaming the poor and marginalised for the circumstances they find themselves in. In our experience, working with a million Australians every year, this is seldom justified.
Aimee09 Nov 2009
Do some research.. mutual obligation does not work.. it does nothing to reduce poverty and certainly will not right the wrongs of the past for Indigenous people. It would be funny if it wasn't so tragic ... As a nurse you are an expert on mutual obligation? Nope!
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