As John Howard recently said in another context, “Be very careful what you wish for.”
In the wake of Wadeye and other issues in the Northern Territory, Indigenous Affairs Minister Brough is maintaining the right-wing rage over the customary law versus law of the land dilemma. Last night on 7.30 Report he was very direct:
KERRY O’BRIEN: Federal Indigenous Affairs Minister Mal Brough told Parliament today that Aboriginal offenders should not be able to use customary law to obtain softer sentences for serious crimes. He said Australian law should apply equally to all people. The minister joins me now from our Canberra studio. Mal Brough, we might come to the specifics or some of the issues related to Wadeye in a moment. But first of all, when you say you will prevent Aboriginal offenders “hiding behind customary law” to get reduced sentences for violent crimes, how will you force the courts to ignore cultural factors in sentencing Aboriginal offenders?
MAL BROUGH, INDIGENOUS AFFAIRS MINISTER: Well, it’s quite simple, Kerry. What you do is you have the states and the territories agree that they will legislate that using such defence, or using it to lessen a sentence as a mitigating circumstances, is actually – is unlawful. In other words, you don’t allow not just Indigenous people, not Australian Indigenous people, but any group to use what they would claim to be a culturally sensitive or culturally traditional practices which involve serious crime, serious pain to other people, they will not be able to use that as a defence.
KERRY O’BRIEN: So you would ask all states and territories to join you in introducing a law that would force judges never to take into account as a mitigating factor any cultural issue involving the defendant? Regardless of who they are, regardless of which culture they come from?
MAL BROUGH: Exactly. That’s exactly right and we’re talking about here serious sexual crime and violent crime. Peter Beattie, the Premier of Queensland has reportedly said today that that already applies in Queensland. I welcome that. All I’m saying is we should have the same approach right across the board, all states and territories. We’re all Australians. We all should apply the same set of laws and the same values.
Weigh Kerry O’Brien’s words really carefully. Would you really want to prevent judges from considering the social and cultural contexts of crimes and defendants? Always? In all circumstances? Without exception?
The whole interview is worth reading.
PS 25 May
There was an excellent discussion on this and related matters on Living Black this week. I will come back to that as soon as the transcript goes online.
I should also add that “considering the social and cultural contexts of crimes and defendants” applies to the sentencing stage of trials under current law, not to the prosecution of crime. Much is in fact gained by this approach. Mal Brough’s proposal does nothing to address the issues raised by Wadeye, but panders to the reaction generated by certain highly publicised aberrant judgements. For just one example of what can be gained by including cultural diversity into the process, see Inside the Circle on my Blogspot site.
And with regard to Wadeye, this story in Thursday’s Sydney Morning Herald really needs to be looked at: Blacks lose out as cash diverted: report.
SUCCESSIVE Northern Territory governments have been redirecting federal money supposed to be spent on remote indigenous communities to projects that benefit other voters, an internal Labor Party report warns… The report, written by a Darwin lawyer, Sean Bowden, warns that social and economic spending have become so warped that “it may be impossible for any NT Government to address them alone”.
Mr Bowden, a member of the territory Labor Party, called for a regional development fund to be set up to tackle infrastructure deficits and promote growth.
In the report, a copy of which the Herald has obtained, he said the Government should put $400 million into the fund, pointing out that it did not hesitate to allocate $200 million for a convention centre and wave pool being built in Darwin…
Mr Bowden said in the report that there was a “growing body of opinion and evidence” the territory Government was redirecting money from where it was meant to go, like the regions, to where its own spending priorities lay, like Darwin’s northern suburbs. “When the residents of the northern suburbs scream, the NT Government acts — to not do so would be to risk handing government to the Opposition.”…