An update on the work of the Human Rights and
Equal Opportunity Commission (HREOC)

Northern Territory Anti-Discrimination Commission
- 31 October 2006

President John von
Doussa

I would like to
acknowledge the Larrakia people on whose traditional land we meet today.



I would also like to thank
the Northern Territory Anti-Discrimination Commission for hosting this event at
such short notice.



What I plan
to do today is to talk briefly about a few of the issues which are currently on
HREOC’s agenda. The first issue is HREOC’s Same-Sex Same
Entitlements Inquiry.

Same
Sex Inquiry

The first issue is
HREOC’s Same-Sex Same Entitlements Inquiry. In April this year HREOC
launched a national inquiry into the discrimination faced by same sex couples in
relation to financial and work-related entitlements.



The aim of the inquiry is to
effectively audit the discriminatory effects of Australian laws on gay and
lesbian couples’ access to financial and work-related benefits.
 



So far we have received
over 360 submissions to this inquiry. Still more people have attended the
public forums and hearings HREOC has held across Australia. This week the
Inquiry is listening to people in Darwin and Alice Springs.



What the submissions we have
received so far show is that for people in same-sex relationships this inquiry
is not simply about tax and welfare payments. It is about redressing financial
discrimination and respecting
relationships.



For example,
many submissions describe how a gay man, unlike a heterosexual man, is denied
access to his partner’s superannuation benefits if his partner worked for
the Commonwealth public
service.

Other submissions tell us
that a lesbian woman, unlike a heterosexual woman, may not have access to tax
rebates for child care.



The
submissions describe the financial strain that these discriminatory laws place
on gay and lesbian couples. They illustrate how laws treat gay and lesbian
couples as second class citizens, not deserving of the same rights as
heterosexual couples. As one person put it:

The inequalities embedded in
current legislation are obvious and are inexcusable.  "Understanding,
tolerance and inclusion" are said to be values of the Australian community.
 Current legislation tells another
story.[1]

The right to
non-discrimination and the right to equality before the law are fundamental
principles of international human rights law.
 

Customary
law

Yet, sometimes the right to
non-discrimination and equality before the law is misinterpreted and
misunderstood. Too often, we hear the mantra that recognising cultural
considerations in sentencing breaches the principle of non-discrimination and
equality.



Last month, the
federal Government introduced the Crimes Amendment (Bail
and Sentencing) Bill 2006. This
bill removes ‘cultural background’
from the list of factors a court can take into account in sentencing and
prevents the courts from considering customary law and cultural practices as a
mitigating factor in sentencing.



The government claimed the
Bill would:

• ensure
  equality before the law by removing cultural considerations from the sentencing
  process; and
• help
  address the problem of family violence in Indigenous communities.

Both
claims are seriously misconceived. The idea that removing cultural
considerations from sentencing creates equality is based on the erroneous
assumption that some (other) people have ‘culture’ and everyone else
is ‘normal’.



The
plain fact is that all Australians, regardless of their cultural background,
have cultural values and may engage in cultural practices which may be relevant
in the sentencing process. The common law is in tune with this reality,
recognising that it is necessary to take into account relevant facts about the
offender’s cultural background, in order to ensure just sentences. As the
then Chief Justice Brennan said in R v Neal the same sentencing principles
apply:

...irrespective of the identity of
the particular offender or his membership of an ethnic or other group. But in
imposing sentences courts are bound to take into account, in accordance with
those principles, all material facts including those facts which exist only by
reason of the offender’s membership of an ethnic or other group. So much
is essential to the even administration of criminal
justice.[2]

By expressly
excluding the courts from considering ‘any form of customary law or
cultural practice’ as a mitigating factor in sentencing the Bill may in
fact result in discriminatory outcomes.



There are two ways in which
the Bill’s prohibition on courts considering ‘any form of customary
law or cultural practice’ as a mitigating factor in sentencing could be
interpreted. Both possibilities present problems.



The first possibility is that
Bill intends to exclude all aspects of what we might call ‘Australian
cultural practices or Australian values’ that could be considered in
sentencing. While excluding everyone’s cultural practice and values in one
sense provide equality before the law, the Bill would undermine the
court’s capacity to deliver ‘individualised justice’ or, in
other words, a sentence which is just and appropriate in all the circumstances
of the case.



The second
possibility is the Bill only intends to target the values and practices of
minority cultures, and only offenders who are members of minority cultures will
be denied the right to individualised justice. If this is the case then the new
laws will be a form of racial discrimination.



The government’s second
claim – that the Bill will help address family violence in Indigenous
communities – must also be rejected. Not only does the Bill distract from
the real solutions to the problem of family violence in Indigenous communities
– solutions that address poverty, housing overcrowding, substance abuse,
low levels of education and unemployment – it undermines important
initiatives such as circle sentencing that have engaged Indigenous communities
and reduced recidivism.



While
the majority of the Senate Legal and Constitutional Committee generally
supported the Bill’s proposal to prevent courts from considering customary
laws or cultural practices as mitigating factors in the sentencing process, the
Committee acknowledged that the ‘Bill’s focus is misdirected’
and that ‘[the Bill] will do little, if anything, to achieve its stated
aim [of addressing family violence in Indigenous
communities]’.[3]

The Bill
reflects the government’s anxiety that the law’s response to the
consideration of customary law or cultural practices in sentencing may result in
unduly lenient sentences that fail to reflect the gravity of the offence.



The important factor to
remember is that the cultural background of the offender is only one factor in
many factors that the court can consider in sentencing. What HREOC said in
relation to the appeal to the Supreme Court the Queen v
GJ, and what we said again in evidence to
the Legal and Senate Constitutional Committee is, that any consideration that
is given to cultural practices or customary law must be consistent with human
rights principles.



If the
government is concerned that Courts may give undue weight to cultural
considerations in the sentencing process at the expense of recognising the
gravity of the problems of family violence and child abuse, the best way to
alleviate this concern would be to introduce a provision that states cultural
practice and customary law shall not be considered in sentencing where to do so
is inconsistent with universal human rights and fundamental freedoms.



Perhaps the most alarming
aspect of the new Bill is that the government has indicated that it wants the
states to enact interlocking
legislation.[4] This would give a bad law nationwide application and fly in the face of every
major inquiry into the role of cultural background and customary law in the
Australian legal system, including five Australian Law Reform Commission
reports.

The launch last
Friday of the Western Australian Law Reform Commission report into Aboriginal
Customary Laws has just added to the bank of well-evidenced research which
concludes that cultural considerations – including customary law –
may be relevant in the sentencing process.



Interestingly,
one of the findings of the West Australian Law Reform Commission Report was that
‘many Aboriginal people in Western Australia were concerned about their
lack of knowledge of Australian law and sought improved education about
Australian law and the legal
system’.[5] The report recommends educational initiatives to inform Aboriginal people about
criminal laws and international human rights standards that may potentially
conflict with Aboriginal customary
laws.[6]

‘Naming
and shaming’ Juvenile
offenders

Unfortunately,
sometimes it is the law itself which pays too little attention to international
human rights principles. The Northern Territory is the only jurisdiction in
Australia that allows the media to identify and publish photos of juvenile
offenders. Under section 50(1) of the ambitiously titled Youth Justice Act 2005 (NT), which commenced in August 2006,
a juvenile offender can be publicly identified, unless a Magistrate issues an
order to restrict publication of proceedings.



While the Youth Justice Act 2005 (NT) is new, the problem of publicly
identifying juvenile offenders in the Northern Territory is not. While the
introduction of the Youth Justice Act would have been an ideal opportunity to
remedy a longstanding problem, section 50(1) of the Youth Justice Act is almost identical to the now repealed
section 23(1) of the Juvenile Justice Act (NT).



From a human rights
perspective, laws which allow the press to ‘name and shame’ juvenile
offenders may breach Australia’s obligations under the Convention on the
Rights of the Child and the International Covenant
of Civil and Political Rights. The United Nations
Standard Minimum Rules for the Administration of Juvenile Justice
(the Beijing rules) states that ‘in
principle, no information that may lead to the identification of a juvenile
offender shall be published’.



In practice, the consequences
of ‘naming and shaming’ juvenile offenders are often far worse than
the punishment imposed by the court. Naming young offenders can jeopardise their
prospects of future employment, inflict psychological damage, and lead to verbal
or physical abuse. In short, ‘naming and shaming’ juvenile offenders
can deal a knock-out blow to the prospect of rehabilitation.



The recent decision of the
Northern Territory Court of Appeal in MCT McKinney &
Ors[7] (McKinney) confirms that, in considering whether to
suppress a young offender’s name, Northern Territory Courts can take into
account the impact of naming the offender on his or her ‘psychological
well-being and rehabilitation prospects’.

In this case, a
15 year old boy, MCT, had pleaded guilty to charges of assault and theft. The
Chief Magistrate ordered the suppression of the appellant’s name with
respect to the ‘serious charges of assault’, but refused to suppress
the offenders name with respect to ‘four less serious charges’.



MCT, represented by the
Northern Aboriginal Justice Agency, appealed against the refusal of the Chief
Magistrate to suppress MCT’s identity in relation to the serious charges.
In the Court of Appeal, Justice Angel held that section 23(1) of the Juvenile
Justice Act (NT) does not allow for the making of orders suppressing the
identity of offenders in the Juvenile Court.



MCT appealed to the full court
of the Court of Appeal. In a joint judgment Martin CJ, Mildren and Thomas JJ
held that the Juvenile Justice Act does allow courts to make an order suppressing
the identity of offenders in juvenile offenders. Their Honours then turned
their attention to the question of whether the Chief Magistrate correctly
exercised his discretion not to suppress MCT’s name on the less serious
charges.



The Court observed
that in exercising its discretion to suppress the identity of juvenile
offenders, it was important to:

weigh in the balance the fact now
almost universally acknowledged by international conventions, State legislatures
and experts in child psychiatry, psychology and criminology, that the
publication of a child offender’s identity often serves no legitimate
criminal justice objective, is usually psychologically harmful to the
adolescents involved and acts negatively towards their
rehabilitation.[8]

The Court
emphasised that a suppression order ‘does not in any way prevent the media
from publishing the details of offending and every other aspect of the
offenders’.[9] In McKinney this fact was sufficient to the balance the public interest in open
justice and the public interest in protecting the privacy of children.

The decision in
McKinney will hopefully encourage more judges in the Northern Territory to
consider whether or not they should exercise their discretion to suppress the
publication of a child offender’s name. Importantly, McKinney provides a
clear directive to Courts considering whether or not to issue a
non-identification order to give due weight to the impact of publication on the
prospects of rehabilitating the youth
offender.



But the real problem
is the Youth Justice
Act 2005 (NT). In my view the problem is that the law has
got its presumptions the wrong way around. Instead of a presumption in favour of
the naming of juvenile offenders, there should be a presumption against the
naming of juvenile offenders.



The negative impacts of naming
juvenile offenders are well-known. Only in rare and remarkable circumstances
might it be justifiable to name a juvenile offender. This is why it should be up
to the prosecution – or the press – to show that, in the particular
circumstances of a case, the public interest in naming an offender outweighs the
public interest in protecting the privacy of the child and preserving the
prospect of rehabilitation.

PT[1] HREOC, Same Sex: Same Entitlements Inquiry, Submission 288, James Duncan.

[2] R v Neal (1982) 42 ALR 609 (Brennan
J)

[3] While the majority of the Committee did support the passage of the Bill, they
recommended that the ‘phrase cultural background’ remain on the list
of factors that a court must take into account in sentencing an offender. See
Senate Committee on Legal and Constitutional Affairs, Report on Crimes Amendment (Bail and Sentencing) Bill
2006, October 2006.

[4] Council of Australia Governments (COAG) communiqué 14 July 2006. I note
that in the Northern Territory the Sentencing
Amendment (Cultural Practice and Customary Law) Bill 2006 proposes to insert a
provision into s 5 of the Sentencing
Act 1995 (NT) which
states a court must not have regard to the customary law or a cultural practice
of a community in sentencing. The Bill would repeal section 104A of the Sentencing
Act which currently
governs the receipt of information about by a court about Aboriginal Customary
law before it passes a sentence on an offender.

[5] Law Reform Commission of Western Australia, Aboriginal Customary Law Final Report, October
2006.

[6] Law Reform Commission of Western Australia, Aboriginal Customary Law Final Report, October 2006, p150.

[7] MCT McKinney & Ors [2006] NTCA
10.

[8] MCT v McKinney & Ors [2006] NTCA
10, [20].

[9] MCT v McKinney & Ors [2006] NTCA
10, [30].