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