Jca colloquium 5 october 2007 customary law – northern territory




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JCA COLLOQUIUM 5 OCTOBER 2007

CUSTOMARY LAW – NORTHERN TERRITORY

CHIEF JUSTICE BRIAN R MARTIN*


Commonwealth Intervention


In recent times events with respect to Aboriginal affairs across the country, and particularly the Northern Territory, have leapt into National prominence and dramatic Commonwealth intervention in Territory affairs of a type not possible in the States has occurred. Violence by Aboriginal men against Aboriginal women and children, particularly in remote communities, has long been a problem with which the courts in the north of Australia have been battling with minimal success. Increased penalties in the Northern Territory have had no discernable impact upon the unacceptably high rate of alcohol fuelled violence.


In recent years, while punishment of an offender said to be administered pursuant to Aboriginal customary law has not infrequently been advanced in sentencing proceedings as a mitigating factor, only on rare occasions has customary law been presented as lessening the moral culpability of the Aboriginal offender. Even less frequently has the sentencing court accepted the submission as of significance.


In 2006 the Commonwealth enacted the Crimes Amendment (Bail and Sentencing) Act 2006 which introduced s 16A(2A) to the Crimes Act 1914 (Cth) qualifying the matters to which the court must have regard when passing sentence for offences against Commonwealth law. Section 16A(2A) directs that the Court must not take into account any form of customary law or cultural practice as a reason for “excusing, justifying, authorising, requiring or lessening” or “aggravating” the seriousness of the criminal behaviour. An amendment in identical terms was also made to s 19B which relates to the circumstances in which offenders may be discharged without conviction. In addition, the same qualification was made in relation to matters to which the Court may have regard in determining questions of bail in connection with Commonwealth offences. Section 15AB now provides that in determining whether to grant bail, the Bail Authority “must not take into consideration any form of customary law or cultural practice as a reason for excusing … [etc] or aggravating the seriousness of the alleged criminal behaviour.”


On 17 August 2007 as part of the Northern Territory National Emergency Response Act 2007, the Commonwealth extended the prohibition against taking into account customary law or cultural practice in respect of sentence or bail to offences against the law of the Northern Territory. The relevant provisions are found in Part 6 in the following terms:


Part 6 – Bail and sentencing


  1. Matters to be considered in certain bail applications


(1) In determining whether to grant bail to a person charged with, or convicted of, an offence against a law of the Northern Territory, or in determining conditions to which bail granted to such a person should be subject, a bail authority:

(a) must take into consideration the potential impact of granting bail on:


(i) any person against whom the offence is, or was, alleged to have been committed; and

(ii) any witness, or potential witness, in proceedings relating to the alleged offence, or offence; and


  1. must not take into consideration any form of customary law or cultural practice as a reason for:




    1. excusing, justifying, authorising, requiring or lessening the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates; or



    2. aggravating the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.




  1. If a person referred to in subparagraph (1)(a)(i) or (ii) is living in, or otherwise located in, a remote community, the bail authority must also take into consideration that fact in considering the potential impact of granting bail on that person.



  2. To avoid doubt, except as provided by subsections (1) and (2), this section does not affect any other matters that a bail authority must, must not or may take into consideration in determining whether to grant bail or in determining conditions to which bail should be subject.



  1. Matters to which court is to have regard when passing sentence etc.


In determining the sentence to be passed, or the order to be made, in respect of any person for an offence against a law of the Northern Territory, a court must not take into account any form of customary law or cultural practice as a reason for:



    1. excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or



    2. aggravating the seriousness of the criminal behaviour to which the offence relates.”


Amendments to the Commonwealth Crimes Act were also made to provisions concerned with forensic procedures undertaken by investigators. These amendments have received little public attention and are not replicated in the Emergency Response Act. Section 23WI governs those matters which an officer must consider in determining whether to ask a suspect to undergo a forensic procedure. Reference to “cultural background and (where appropriate) religious beliefs” and the requirement to have regard to the customary beliefs of a suspect who is an Aboriginal person or a Torres Strait Islander were removed. By way of amelioration, subs (4) was added to s 23WI to provide that in considering whether there is a less intrusive, but reasonably practicable way of obtaining the evidence, consideration must be given to the religious beliefs of the suspect. Similar amendments were made to s 23WO in connection with matters to be considered before ordering a forensic procedure.


In the Second Reading Speech, introducing the Bill amending the Commonwealth Crimes Act, the Attorney-General stated that the amending Bill “ensures that all Australians are treated equally under the law and that criminal behaviour cannot be excused or justified by customary practice or customary law”. The Attorney referred to the serious concern of the Australian Government “about the high level of violence and abuse in Indigenous communities”.


The Explanatory Memorandum accompanying the Emergency Response Bill identified the decision of the Council of Australian Governments (COAG) on 14 July 2006 as the basis for the intervention with respect to sentencing and bail:


“On 14 July 2006, the Council of Australian Governments (COAG) agreed that no customary law or cultural practice excuses, justifies, authorises, requires, or lessens the seriousness of violence or sexual abuse. All jurisdictions agreed that their laws would reflect this, if necessary by future amendment. COAG also agreed to improve the effectiveness of bail provisions in providing support and protection for victims and witnesses of violence and sexual abuse.





The Government wishes to ensure that the decisions of COAG, as implemented by the Bail and Sentencing Act, apply in relation to bail and sentencing discretion for Northern Territory offences.”


Similar remarks were made by the Minister for Families, Community Services and Indigenous Affairs in the Second Reading Speech on 7 August 2007.


The amendments to which I have referred do not reflect any recommendation by a Law Reform Commission. To the contrary, every Law Reform Commission recommendation has supported the continuing role of customary law in the administration of the general criminal law across the country. Professor Larissa Behrendt, Professor of Law and Indigenous Studies at the University of Technology, Sydney and Director of Ngiya, the National Institute of Indigenous Law, Policy and Practice commented1:


“Nowhere, in the calls from Aboriginal women for the judiciary to reject so-called customary defences that seek to imply that mistreatment of women and children is culture or to value the rights of victims more highly than cultural practice that breach human rights, was there a call for the blanket exclusion of customary law from the judicial decision-making process when determining a sentence. Those calls came from politicians.


The proposal to legislate to exclude customary law from the factors that can be considered in sentencing is dangerous. Like any attempt to restrict a judicial officer’s capacity to weigh up all the relevant factors when sentencing, the inability to consider customary law at all will impede the capacity to ensure that a just sentence is given in each particular circumstance before the court. It is also a serious infringement on the judicial process by the legislature and as such has implications for the principle for the separation of powers.


But pointing the finger at the judiciary is an easy way for politicians to grand-stand and score quick political sound-bites. Judges who hear criminal cases where violence has been committed against Aboriginal women and children are dealing with symptoms of a far more complex social problem. And it is politicians, not the judiciary, who have the most power to profoundly influence the root causes of cyclical violence and the breakdown of the social fabric in Aboriginal communities.”

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