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Racial discrimination may be in order

By James McConvill - posted Friday, 16 June 2006

The Howard Government has pushed for changes to state and territory laws so that an Aboriginal offender cannot rely on Aboriginal customary laws in an attempt to have their sentence reduced.

Federal Indigenous Affairs Minister, Mal Brough, has led the call for law reform. According to Mr Brough, Aboriginal customary laws are “used as a curtain that people are hiding behind”.

Attention recently turned to practices sanctioned under Aboriginal customary law in northern Australia due to a controversial decision by a Northern Territory judge to sentence an Aboriginal man to a one-month jail sentence for bashing and having anal intercourse with a 14-year-old girl.


The light sentence was due to the judge accepting the argument that the defendant’s actions were based on customary law, which the defendant believed gave him the right teach the girl - promised to him as a bride - to obey him. The sentence was increased to three years' imprisonment on appeal.

Mr Brough has said that sentencing law reform was necessary because as the law stood “one group of Australians are treated unequally to everybody else”.

I very much agree with the government that customary law has to go in the context of sentencing, but it is not the case that the law at the present time directly favours Aborigines over other racial groups.

State and territory sentencing laws do not expressly provide that customary law practices are a factor that can be taken into account by a judge when determining the defendant’s sentence. Rather, courts tend to rely on more general factors available under these sentencing laws, such as “the presence of any aggravating or mitigating factor concerning the offender”, and “any other relevant circumstance” (as taken from section 5 of the Northern Territory Sentencing Act) to enable evidence of customary laws to be considered.

But the important point is that these sentencing factors are not limited to Aboriginal offenders: they can be employed by a judge to take into account the cultural standards and practices of offenders from any racial group. In this sense, while the application of sentencing laws can lead to radically different outcomes in different cases depending on the race of the offender, the law in fact sets down a process which treats everyone equally.

It is because sentencing laws operate in this way that the Howard Government’s proposed reforms are problematic. Critics have argued that the proposals would single out Aboriginal customary law in a discriminatory manner and therefore would be unlawful under the federal Racial Discrimination Act.


Section 10 of that Act requires federal, state and territory laws to treat racial groups equally under the law, and for different racial groups to have the same rights under the law. If a law is passed to exclude one racial group from being able to rely on cultural norms as a mitigating factor at sentencing, whereas other racial groups can, then arguably the requirement for equality of rights is violated.

So we would end up with a law deemed to be racially discriminatory, and in breach of federal law. But what has to be asked here is this: who cares? Who is to say that brushing a legislative initiative with the racially discriminatory label should be the start and end of the conversation?

The practices that have been reported in northern Australia recently are a disgrace and the Aboriginal community should no longer be excused for it. The simple fact is that while as a nation we hold some shame for how Aborigines were treated in the past, the Aboriginal community should be ashamed for how they are allowing their own to be treated today.

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About the Author

James McConvill is a Melbourne lawyer. The opinions expressed are his personal views only, and were written in the
spirit of academic freedom when James was employed as a university lecturer.

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