As an Alice Springs lawyer and politician, I am keenly interested in the national debate about violence in Aboriginal communities. That's why I read the Law Council's submission entitled Recognition of Cultural Factors in Sentencing. It was an infuriating read.
I should declare an interest. I have twice introduced bills into the Northern Territory parliament seeking changes to the Sentencing Act so that customary law is removed from the deliberations of the court in criminal matters.
My first attempt was in 2003, and again last year. My third attempt will be in August this year. The Territory Government has already indicated that no changes to legislation will be supported.
Having read the Law Council's submission, which was prepared for the Council of Australian Governments, it is clear to me that the insidious way customary law is used to benefit violent Aboriginal men is conveniently ignored or, perhaps, simply not understood. This may explain why there has been a hysterical rejection of any consideration of the removal of customary law for sentencing purposes by some in the legal profession.
The Law Council's submission states that "there has been no case in which the court has accepted such evidence (customary law) as justification or excuse for violent behaviour". If this were the case, why then did all governments deem it necessary to agree at COAG that "no customary law or cultural practice excuses, justifies, authorises, requires, or lessens the seriousness of violence or sexual abuse", and why did they agree that the laws of all jurisdictions will reflect this?
Put simply, if customary law is not meant to "lessen the seriousness of violence" why do violent Aboriginal men seek to rely on it for sentencing purposes when the aim of doing so is to lessen the sentence?
When talking about her research for her doctoral thesis in a Lateline interview on this topic, the Territory's Crown prosecutor Nanette Rogers said she was "taken aback at how much emphasis was placed on Aboriginal customary law in terms of placing the offender in the best light, and how it closed off the voices of Aboriginal women".
She went on to say that "sometimes Aboriginal cultural practices do not benefit the victims. They benefit, more often than not, the offender, and if it means criticising those Aboriginal practices that constrain victims or witnesses from giving evidence and ensure the ability of the offender to keep behaving in exactly the (same) way, then why should there be an Aboriginal cultural practice that sustains that?"
Let's be clear: customary law is a shield behind which violent Aboriginal men hide. It is an unconscionable mechanism by which an offender's criminality is excused or reduced. Anyone who doubts that this occurs, and occurs often, should visit the Local or Supreme Courts in Alice Springs and Darwin.
Customary law, in all its guises, is used frequently in Territory courts in an attempt to mitigate an offender's criminality.
A visitor to our courts will see cases where defence lawyers urge the court to take into account the fact that some violent men have been subjected to payback, and ask the court to take that into account when sentencing.
Sometimes, defence lawyers argue that a woman victim referred to men's business that made her attacker angry, which is why he beat her. On other occasions, courts hear how violent men are initiated and have ceremonial responsibilities and are asked to take these into account when sentencing.
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