The Integration of Customary Law into the Australian legal system

The Integration of Customary Law into the Australian legal system

Globalisation, law and justice seminar

Mr Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner, Human Rights and Equal Opportunity Commission

27 October 2006 Perth

UWA in partnership with La Trobe Law and the Australian Institute of Comparative Legal Systems

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Good
afternoon, I’d like to begin by acknowledging the Noongar people, the
traditional owners and custodians of the land where we are gathered today, and
pay my respects to their elders.



I’d
also like to acknowledge my distinguished fellow speakers.



My
presentation today is focused on customary law. I will refer to Aboriginal customary law, though
the points that I will make are equally relevant to Torres Strait Islanders and
to their distinct systems of law and governance. I have taken out reference to
Torres Strait Islanders only for ease of expression – so please accept
that I mean all Indigenous Australians. This presentation is an abbreviated
version of a slightly longer speech that I prepared for this forum. Time will
not permit me to present the longer version.



The theme
of my address today emphasises the important role that we Indigenous people have
to take charge of our own destinies. The maintenance and integration of
Aboriginal customary law is an essential part of this.

It
is significant to be discussing Aboriginal customary law here on Noongar
country. The recent Federal Court finding that the Noongar people are the
traditional owners of this area is evidence of the fundamental recognition of
Aboriginal customary law in the Australian legal system. As a statute that had
its evolution through common law, the Native Title Act 1993 is a defining piece
of legislation demonstrating that Indigenous Australian societies possessed, and
continue to possess, well-developed systems of law.

I
wish the Noongars every success in the next phase of gaining formal recognition
of their traditional and customary rights and interests in this land.

I
want to present an argument today that puts the case that in order to create a
justice system that works for Indigenous Australians, the Australian legal
framework must acknowledge and integrate Aboriginal customary law.

It
cannot be repeated often enough that a legal system must reflect the people it
serves if it is to gain their confidence. And Indigenous Australians want
greater confidence in the legal system.



We want to
know that in its day to day operation, the legal system understands and respects
our cultures, our heritage, and our histories. We want to know that the legal
system is constructed in a way that is capable of providing justice for our
people and our communities.



I’d
like to use the time today to provide a social justice and human rights
perspective that argues the necessity for recognition of Aboriginal customary
law within the Australian legal system. In doing so, I will focus on family
violence and abuse - issues which have been reported with such distressing
frequency of
late.



I
want to correct the perception that family violence and abuse is somehow
condoned through Aboriginal customary law. Furthermore, I want to talk about
how Aboriginal customary law, and support for strong, robust community
governance structures, has a large role to play in overcoming issues of family
violence and abuse, as well as other problems that beset some Indigenous
communities.



For some
communities, Aboriginal customary law is an essential component of
self-determination. Customary law is a means of self-governance and of dispute
resolution – it is a way for communities to control their own lives.



A
community is most likely to have a healthy sense of order when control comes
from agreed norms within. Over time, there is nothing more debilitating for a
community than a lack of internal control. It is also debilitating for a
community to be perceived as being unable to manage its own affairs. Aboriginal
people are competent, capable people. We regularly achieve extraordinary
things.



I
cannot remember a time when customary law has been the focus of so much media
and political attention as it has during recent months. Various commentators
have had a field day reducing the standing of customary law in the eyes of many
Australians.



Moreover,
you are probably aware that the Commonwealth Government is now seeking to amend
the Commonwealth Crimes Act to effectively exclude consideration of cultural
background and customary law in sentencing discretion and bail applications.



While in
principle the Bill’s ambit should have bearing on all Australians because we all practice some form of culture, it would appear that,
in practice, the federal government is predominately focussing the amendments on
their application to Aboriginal customary law. I’ll quote here an excerpt
from the second reading speech for this Bill:

The
high levels of family violence and child abuse in Indigenous communities is
appalling. The law covering such crimes must reflect the fact that such
criminal behaviour is unacceptable... this Bill forms one element of our
approach to addressing these difficult issues. The amendments in this Bill are
complemented by law enforcement initiatives which include the creation of a
National Indigenous Violence and Child Abuse Intelligence Task Force... [1]

At
this stage the Amendment Bill is limited to the Commonwealth jurisdiction.
Potential crimes under the Commonwealth include but are not limited to the
Marriage Act, migration matters, national security, taxation and social
security. However, there are indications that the Australian governments will
do more than encourage states and territories to amend their legislations.



In June
this year at the inter-governmental summit on violence and child abuse the
Commonwealth Government ‘invited the states and territories to ensure like
provisions are implemented in each jurisdiction.’ The Commonwealth
identified that amendments to state and territory legislations could be
negotiated as part of bilateral agreements. This would likely see a link
between changes to criminal codes and federal funding for Indigenous affairs to
the states and territories.



While it
is difficult to know how much impact these amendments will have in the
Commonwealth jurisdiction, there is no doubt that real impact will be felt in
state and territory jurisdictions.



Last month
I made a submission and gave evidence to Senate Legal and Constitutional Affairs
Committee Inquiry arguing that the Crimes Amendment Bill should not be passed.



I made the
point that:

All
Australians, regardless of their ethnic background, have cultural values and may
engage in cultural practices that may be relevant to sentencing for a criminal
offence. It does not offend equality before the law for such matters to be
taken into account in all cases where they are relevant: On the contrary, such
an approach provides equality before the law.

The
Commission and I have stressed on many occasions that the right to enjoy culture
must be consistent with other human rights and in particular in the present
context, the rights of women and children.

The
sentencing process involves a similar process of balancing the rights, interests
and circumstances of the community, the victim and the offender. It distorts
this balancing process ... for the law to automatically exclude cultural
practices from the matters to be taken into account.

It
is also contrary to Australia’s commitment to cultural diversity to
automatically exclude customary law and cultural practice from
sentencing.[2]

I
also noted that the Bill is poorly constructed and simply does not address the
central issues that it is designed to meet. As I stated to the Senate
Committee into this Bill:

Something
that we all agree upon is that the rights of women and children of all cultural
background should be protected. Our laws should unambiguously reflect our
abhorrence of family violence or abuse. The proposed law does not do this.

The
Senate Committee’s report has now been released and it makes one
recommendation that in my view improves the Bill, and that is
to:

...retain
the phrase ‘cultural background’ in the list of factors that a court
must take into account in sentencing an offender...

This
does not address all the problems of the Bill. We are yet to see whether the
Senate will accept or reject this recommendation. We can only hope that they
will retain cultural background as a factor that can be taken into account in
sentencing, and therefore be in a position to utilise the extensive research and
findings of the Law Reform Commission of Western Australia’s report into
customary laws.



Later
today I will be participating in the launch of this report. It provides an
excellent framework for the appropriate integration of customary law in the
legal system and deserves serious consideration by the Western Australian
government. The WA report follows the 1986 Australian Law Reform Commission
Report on Aboriginal Customary Law. Unfortunately the recommendations of the
ALRC report have not been the subject of comprehensive responses nor
implementation at the federal level. I note that the WA report has a well
developed focus on implementation. This is something that we often miss in
Indigenous affairs.

So
what is customary law? Customary law is a form of social organisation and
justice that maintains and sustains traditions that go back millennia.
Customary law is part of a wider framework – a world view – and one
that is very different from contemporary Australian social customs and norms.

Indigenous
systems of law include diverse kinship systems and traditions and connections to
land that are current and practised throughout parts of Indigenous Australia.
Many of my people in the top end and across parts of central Australia
understand their world and their relationships through the moiety and skin group
systems.

Put
simply, in these communities all people, plants, animals, songs, dances,
ceremonies and land are divided into groups, or moieties. In Arnhem Land in the
Northern Territory for example, the moieties are Duwa and Yirridja. Each moiety
is subdivided into eight 'skin' groups. A child's skin group is determined by
their mother's skin group but they inherit their moiety from their
father.

The
people of central Australia also have dual moiety systems - the 'sun side' and
the 'shade side' and this exists across most of the central desert region. Most
language groups in the centre also have either four
to eight skin groups,
though not all. The Warlpiri for example have sixteen. The Pitjantjatjara have
moiety groups – 'our side', and 'their side’ – but don't have
skin groups.

In
giving evidence to the Northern Territory Law Reform Committee of Inquiry in
2003, one central Australian woman explained kinship thus:

Customary
law is what I am; the essence of an Aboriginal person is customary law. It
controls you completely and wholly, not in an imprisoned way but in the way that
it cares for you completely and that means
holistically.[3]

Ones’
kinship sets out clear rules for association and defines how people must relate
to each other. Through the skin group, people identify others around them as
mothers, fathers, uncles, aunts, cousins and potential marriage partners.
Almost every aspect of day-to-day communication with other Aboriginal people is
governed by kinship ties. The kinship system determines who marries who,
ceremonial relationships, funeral roles and behaviour patterns with other kin.
I can not emphasise the importance of kinship enough.

Because
of the kinship system, property crimes in Indigenous communities are rare. In
fact, most objects can be borrowed. While the borrowing or taking of objects is
sanctioned, kinship obligations are very specific about what is required in
relation to extended family members.

Some
of the reasons that disputes arise is because of failure to fulfill kin
obligations. This can include marriage disputes and matters such as breaching
contractual obligations. Dr Nancy Williams has documented customary practices
in Yirrkala, a community in north east Arnhem Land. She notes that customary
reasons for dispute were frequently about:

(1) the
failure to recognise a person’s specific rights over land, natural
resources, ritual objects or women as potential marriage partners,

(2) breaches
of religious restrictions,

(3) the
failure to carry out sanctions imposed during a previous dispute, and

(4) allegations
of
sorcery.[4]

In
terms of dispute settlement, different clans across Australia have very clear
codes for practice. It is usual for communities to impose sanctions in dispute
resolution processes. While there is now greater emphasis on non-physical
sanctions, physical sanctions have not disappeared completely. According to
Williams, the likelihood that persons handing
out physical
punishments may be dealt with under Northern Territory law appears to be a
significant factor in fewer instances of physical payback such as spearing. The
sanctions more readily applied today include temporary exile from the community,
usually to outstations; restitution, usually by monetary compensation; and
temporary removal from
employment.[5]

For
the communities where customary law is practised, these sanctions are well
understood, and provide resolution to disputes.

While
I am not an expert in customary law - I will say this much, there is a major
task in this
country to educate the Australian populous about Aboriginal customary law. We can’t allow
misconceptions and misinformation to bias the wider Australian community. To
put it crudely, we have to fight the public relations debate first – we
have to be out there challenging the misinformation and accurately informing the
wider public. This message needs to be put to politicians, to government
departments, to the courts as well as to the wider society.

In
correcting the misperceptions about customary law we must also state clearly
that Indigenous
women and children are entitled to live without fear of violence or abuse. This is their cultural
and human right. We need to do this to correct the misperceptions about
customary law.



It is my
view that Aboriginal customary law, properly applied, does not encourage nor
condone family violence or abuse against women and children. While systems of
law differ among the many Indigenous peoples of this country, I have yet to see
any evidence of a single Indigenous culture in which violence against women is
condoned as part of that ‘culture’. Many Aboriginal cultures, in
fact, are matri-lineal.



We should
be speaking of the perpetrators of violence and abuse as people who do not
respect customary law. We need to be continually countering the false claims
that customary law is itself the problem.



I would
also submit to you that one of the problems that we have faced in public debates
about Aboriginal customary law to date is a misunderstanding of human rights.
Human rights standards provide an appropriate balance between the interests of
individuals and Indigenous group interests. Unfortunately, they have from time
to time been mis-represented as enabling the rights of one group or person to
‘trump’ the rights of another
person.



So,
for example, customary law can be mis-represented as overriding or trumping the
rights of individuals within the community – such as women and
children.



This
is not so.



The
Committee on Civil and Political Rights makes clear that in the enjoyment of
culture, .... No state, group or person is to violate the right of women or
other groups to the equal enjoyment of any covenant rights, including the right
to equal protection of the
law.[6]

In
other words, the provisions of all of the treaties are to be read consistently
with the other human rights including for example, the provisions of the
International Convention on the Elimination of all Forms of Discrimination
Against Women.



Some of
the misperceptions about customary law have also come about because of media
coverage and public debate of various decisions of Australian courts where they
have considered Aboriginal customary law as a factor in mitigation or as a
relevant factor in sentencing in violent assaults on women and children.



There have
been some recent high profile cases where the courts have come under scrutiny
for providing inadequate sentences for very serious crimes. One such case is
the ‘promised bride case’, the Queen v GJ; where the accused
received a 24 month sentence with 23 months suspended for a conviction of sexual
intercourse with a minor and aggravated assault. While the accused pleaded
guilty to both charges, it was argued in mitigation, that he was exercising a
customary right and that he was unaware that what he did was against the law.



Now I want
to make clear, taking promised wives by force is not customary.



In 2003,
the Northern Territory Law Reform Commission undertook an inquiry into
Aboriginal law in the NT. It found the following about promised marriage:

Generally
speaking, the child is expected to understand the nature of the contract when
she reaches puberty (say 12 or 13). There is then a process by which the child
and her family affirm the contract and the girl goes to live with the family of
the husband, but not usually with the husband at first. Sometime thereafter the
girl goes to live with the husband as his wife. The girl can choose not to
comply with the marriage agreement at any time prior to living with the husband.
However it should be noted that the social expectations of all the families
involved are that the marriage would normally proceed. Love
marriages are
recognised as a fact
of life for the girl, her family and the community and thus the process for the
girl and her family repaying benefits received in anticipation of marriage is
also dealt with under traditional law.

The
NT Law Reform Commission definition is very clear in stating that consent is
necessary for marriage; that girls and young women can choose not to marry; that
no force is involved; and that love marriages are also possible under Aboriginal
customary law. Notwithstanding, it is also important to point out that marriage
into the right skin group is still extremely important in many Indigenous
communities. A wrong marriage disrupts the social order and makes it difficult
for people to maintain good relationships. It can have implications in terms of
customary law.



Under
Australian law betrothed parties cannot be forced together in marriage.
Traditional law does not support such force either. But Indigenous Australians
who practice customary law need to have a clear understanding of what
constitutes consent under Australian law, including the age of consent.
Let’s not lose sight of the fact that education about consent is routinely
reinforced in urban environments through television campaigns such as the
‘no means no’ advertisements. Consent messages continue to be an
important component of school curricula. These messages are necessary for all
Australians, not just Indigenous Australians. But we need to be sure that these
same messages are being appropriately transmitted right across Australia in a
language and a format that is understood by diverse Indigenous communities.



Societies
change and different norms evolve over time, and this is precisely why the
common law system is designed to reflect changing societal customs and norms.
The same is true with customary law. Telecommunications is bringing new
cultural messages to places that did not have access to this form of information
ten or fifteen years ago. In some instances young people are rejecting the
customary way of life. This too must be respected and brought into balance at
the community level.



We need to
make clear that the different legal systems are not at cross purposes. One can,
and must, support the
other.

In
a statement with regard to the GJ ‘promised bride’ case, the Court
of Criminal Appeal of the Northern Territory noted that ‘consultation with
Aboriginal communities has too often been perfunctory’ and suggested that
it may be appropriate for HREOC to implement ‘educational programs about
(conflicts between customary law and criminal codes) in Aboriginal
communities’.

I
have put my hat in the ring to provide this form of education. I have made
various proposals to the federal government for human rights education to be
conducted in collaboration with Indigenous peoples. Unfortunately these bids
have not been funded to date. I plan to keep putting forward these proposals
because this kind of human rights education is a vital part of an educative
process to bring systems of knowledge together.



I believe
that there is limited, if any, information reaching Indigenous communities about
the Australian legal justice system and about individual civil rights as defined
by human rights standards. In many cases, the only information that Indigenous
people have about the Australian legal system is when they come into contact
with it as offenders, or as the families of
offenders.



I
have been doing human rights education work in other contexts. While the
parallel is not exact - As part of my responsibility as national Race
Discrimination Commissioner I put in a successful funding submission to develop
human rights resources for Muslim communities. Part of the purpose for this
project is to overcome discrimination in Muslim communities. It is
disappointing that while some human rights projects have been funded with the
understanding that they promote cohesion and reciprocal understanding across the
cultural divide, similar projects have not been funded for Indigenous peoples
and communities.



The bridge
needs to be formed between black and white, urban and remote, and between young
and older generations. In some communities the younger generations are being
informed about the Australian legal systems and their civil rights through
school education while the older members of communities do not have the same
access to formal education. A disjunction in knowledge and information-access
is emerging between the generations. This means that there are different levels
of understanding within communities.

As
we know from our own experience – you have to know the law in
order to be able to comply with its rules and
obligations.

With
regard to the Australian legal system, I also want to make the point that it has
its own checks and balances. While the courts have rightly come under some
scrutiny for sentencing decisions such as the ‘promised bride’ case,
where sentences have been found to be manifestly inadequate, they are able to be
rectified on appeal. Public prosecutors have consistently appealed cases where
inadequate weight was given in sentencing with regard to the seriousness of the
offence. This was the case in the GJ case, in which the initial sentence was
increased in severity due to the view of the full court that the original
sentence was manifestly inadequate and that the incorrect balancing act had been
made.



In my
view, what really needs to occur in terms of bail and sentencing decisions is
thorough education of the judiciary and the wider public about the true nature
of customary law.



The Law
Council of Australia outlines the context for considering custom in sentencing.

In
the context of an Indigenous offender, it is relevant to consider whether the
offender observes a traditional lifestyle and lives according to the customary
laws of his or her community. In some cases, evidence of the customary
background of the offender may mitigate the severity of the offence, and
corresponding punishment. It may in some circumstances also be a relevant
consideration that the offender has undergone traditional punishment in
accordance with customary law.

Evidence
may also be admitted concerning whether the offender had consented to, or
received, ‘payback’ or other traditional
punishment.[7]

Culture and
context are important aspects of mitigation. By ignoring payback, Indigenous
offenders can be put in a situation of double jeopardy. These matters are
balanced against community concerns such as the importance of protecting
vulnerable members of the community and providing a reasonable deterrent against
such
behaviour.



While
I know this is not an ‘either or’ situation, I do want to emphasise
the limitations of the Australian legal system as the sole instrument to ensure
justice in Indigenous communities.



First, I
observe that many communities operate despite the existence of the
non-Indigenous legal system or effective policing of any kind. I don’t
have national statistics on the number of communities without police; though
neither it would seem does the federal government. I note that earlier this
month, Minister Brough initiated a review into the policing levels in remote
communities.



What I do
know is that out of 40 Indigenous communities across central Australia, only
eight have some sort of police presence. Four of these communities do not have
a police station in the community, only one close-by. Some police stations are
at least a two-hour drive
away.[8]

Certainly,
if there is one thing that the statistics on family violence and child abuse in
communities highlights to date, it is the failure of the non-Indigenous legal
system to effectively support communities requiring intervention.



Second,
while it has been open season on customary law, few commentators have chosen to
reflect on the failures of the criminal justice system in its relationship with
Indigenous people.



There is
cause to reflect on this, particularly this year, the
15th anniversary of the Report of the Royal Commission into Aboriginal Deaths in
Custody. This report highlighted deficiencies across a non-Indigenous legal
system that was literally killing too many of the Indigenous people who came
into contact with it; and a report for which far too few of its recommendations
have been
implemented.



In
fact little has changed in the fifteen years since the report was published.
Indigenous peoples’ over-representation in prisons has worsened and new
problems have emerged. Indigenous women and young people are being incarcerated
at record rates, and the rates are growing alarmingly, and the number of
Indigenous deaths in custody has actually increased over the period 1991 to
2002.[9]

As
has so often been observed, the separation between Indigenous 'victims' and
'offenders' is not clear. In reality many Indigenous people in the criminal
justice system are both offenders and victims, just as - tragically - much of
the violence perpetrated against Indigenous people is by other Indigenous
people; many of whom have been victims too.



According
to the Australian Bureau of Statistics, there were 5,662 Indigenous people in
jails across Australia in the December quarter, 2005. This constitutes a rate
of 2,024 per 100,000 of the adult Indigenous population. By comparison, the
average daily imprisonment rate for all Australians is 155 prisoners per 100,000
of the adult
population.[10]

Approximately
22 percent of prisoners in Australia today are
Indigenous[11] while in 1991 when the Royal Commission reported; Indigenous peoples comprised
14 percent of the prison
population.[12]

There
is obviously a debate that needs to be had to address the complex issues
regarding Indigenous justice and law, but complex issues require well thought
out solutions. The best solutions in cross cultural settings are multi-faceted.
They do not favour one system to the exclusion of the other.



In terms
of law and order issues in communities, one cannot neatly separate out what are
the causes and what is the effect. What we can do however, is look to what has
worked, and look to examples where here have been positive outcomes. We have to
take the guess work out of approaches. There is too much at stake. There is an
urgent need for well evaluated data that tells us what we can expect under
certain preconditions.



So where
are the solutions?



In my view
they are evolving, though I think there are some good examples that we can look
to.



In 2004
the Northern Territory government took steps to address deficiencies surrounding
the introduction of customary law into the criminal justice system through the
introduction of a formal mechanism for raising issues relating to customary law
in sentencing Aboriginal offenders. The laws provided that the court could only
receive such information if the party that wishes to present the information
gives notice to each other party and each of the other parties has an
opportunity to provide a response. Further, the customary law information is
then presented in the form of evidence on oath, an affidavit or a statutory
declaration.



The
Sentencing Amendment (Aboriginal Customary Law) Act 2004
(NT)[13] was made in response to recommendations from the NT Law Reform Committee. Its
intention was to prevent the introduction – by non-Indigenous lawyers in
the main – of information to the courts that was ill-informed or incorrect in
terms of customary
law.

Almost
all Australian jurisdictions now have some process for the engagement of
Indigenous communities in sentencing. This is an encouraging development, as is
the broader acceptance of restorative justice processes and the increased focus
on diversionary schemes for Indigenous young people in particular. There is
emerging evidence from these processes, that circle sentencing (NSW), the Murri
Court (Qld), the Koori Court (Vic) and the Ngunga Court (SA) are demonstrating
signs of success. In NSW and Victoria there is data supporting reduced rates of
recidivism in comparison with recidivism rates through other court systems.



Here in
Western Australia the Attorney General is developing a model court to address
family violence in Geraldton. One of the aims of the court is to identify
systemic or patterned issues with family violence and propose solutions. It
will also provide programs and facilities for Aboriginal people.



There is
also a pressing need for full engagement and dialogue with Indigenous peoples
regarding changes to Indigenous policy and law. The Chair-persons, CEOs and
Principal Legal Officers of all Aboriginal and Torres Strait Islander Legal
Services across Australia issued a press release in June this year calling on
the Australian government to involve them in any discussion on changes in legal
policy for Indigenous peoples.



The issue
of consultation and the need for active meaningful participation is very
important as we are seeing too many changes to legislation affecting Indigenous
Australians without adequate consultation or participation by those affected.



Human
rights standards provide an appropriate balance between the interests of
individuals and Indigenous group interests.



In
concluding I want to leave with you what I think are some interesting data. ABS
survey statistics on Indigenous 15 to 24 year olds provide evidence that
customary systems of law are enduring and strong. The survey results, just four
years old, to my mind prove a powerful case to strengthen customary law within
communities, and to do so in conjunction with human rights and Australian law
education. In 2002:

62
percent of Indigenous young people recognised their homelands and / or
traditional country; 47 percent reported that they identified with a clan,
tribal or language group; and 66 percent had attended a cultural event in the
last 12 months. For each of these measures of cultural attachment, higher rates
were reported in remote areas.

Similarly,
Indigenous languages were more commonly used in remote areas. Overall,
one-half (yes 50 percent) of Indigenous young people in remote areas spoke an
Indigenous language, compared with 6 percent in non-remote areas. The
proportion for whom an Indigenous language was the main language spoken at home
was 37 percent in remote and 2 percent in non-remote
regions.[14]

The
Indigenous population is growing, and the connection to culture is enduring.



Despite
the chorus of claims that declare that self-determination is a ‘failed
experiment’, in my estimation, it has never really been put into practice
in Australia, post-colonial contact. For too long Indigenous peoples have been
administered and governed, or part administered and governed, by others. As was
stated in the Royal Commission into Aboriginal Deaths in Custody Report:

We
require a fundamental shift in the mindset of governments and Indigenous
communities. This shift is from an approach that seeks to manage Indigenous
disadvantage and dysfunction, to an approach that supports and builds functional
communities.[15]

Prime
Minister Howard has encouraged all Australians to join the government in
ensuring that our ‘diversity continues to be a unifying force for our
nation’. This was a reference to the Australian Government’s
Multicultural Policy 2003 – 2006 which contains the following, and I
quote:

one
of the greatest strengths of our nation is our cultural diversity.’ [16]

We
need to acknowledge our diversity by doing more than paying lip service to it.
While we are one nation, and the laws that bind us through the Australian legal
system are the same, there must be recognition of diversity within that system.
An imposed order that enforces a monocultural viewpoint is not a sustainable
kind of order. It is not an order that delivers substantive equality. It is
not possible to deliver equality by treating every Australian in exactly the
same way. Equality comes from acknowledging different systems, different values
and different cultures under the umbrella of Australian law and international
human rights. It is now 12 years since the insertion of cultural background
into the Crimes Act, it is time to strengthen the commitment to diversity, not
move back to an Anglo centric dominated Australia.



Ultimately,
when an individual or a community is able to exercise control over their
environment; when their cultural practices are respected within the wider
society; and when there is clear information about the common expectations under
the systems of law, then these are the pre-conditions for people to ‘have
the freedom to live
well’.



From
self respect comes dignity, and from dignity comes
hope.



Thank
you.

---

[1] Second reading Speech Crimes Amendment (Bail and Sentencing) Bill 2006
Senate

Official Hansard No. 10, 2006 Thursday, 14 September 2006
Forty-First Parliament

First Session—Seventh Period

[2] Senate Standing Committee on Legal and Constitutional Affairs: Crimes Amendment
(Bail And Sentencing) Bill 2006, Committee Hansard Commonwealth of Australia,
Friday, 29 September 2006

Sydney

[3] Rosalie Kunoth-Monks in discussion with the Committee of Inquiry on 15 May
2003

[4] Sourced from: Nancy M Williams, ‘Two Laws: Managing Disputes in a
Contemporary Aboriginal Community’, Canberra, unpublished manuscript 1983,
in Australian Law Reform Commission 31, The
Recognition of Aboriginal Customary Laws, Commonwealth of Australia
1986

[5] Sourced from: Nancy M Williams, ‘Two Laws: Managing Disputes in a
Contemporary Aboriginal Community’, Canberra, unpublished manuscript 1983,
in Australian Law Reform Commission 31, The
Recognition of Aboriginal Customary Laws, Commonwealth of Australia
1986

[6] The recognition of Aboriginal customary law, Dr William Jonas AM, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Human Rights and Equal
Opportunity Commission (HREOC)

[7] Recognition of Cultural Factors in Sentencing, June 2006 Law Council of
Australia submission to Council of Australian Governments

[8] Australian Broadcasting Corporation TV Program Transcript, Location: http://www.abc.net.au/lateline/content/2006/s1639133.htm,
Broadcast: 15/05/2006

[9] Reference: Australian Bureau of Statistics 1301.0 - Year Book Australia,
2004

[10] Reference: Australian Bureau of Statistics, Corrective Services -
December quarter 2005, Cat 4512.0, http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/8F7BF1141B69E8D9CA257139000E3B5F/$File/45120_dec%202005.pdf.

[11] 4517.0 - Prisoners in Australia, 2005, http://www.abs.gov.au/AUSSTATS/abs@.nsf/PrimaryMainFeatures/4517.0?OpenDocument

[12] For an overview see Social Justice Report
2001, Chapter 1.

[13] Law and order legislation in the Australian States and Territories:
2003–2006 by Lenny Roth Briefing Paper No 12/06

[14] 4102.0 - Australian Social Trends, 2006 – Young Aboriginal and Torres
Strait Islander Survey: Australia's Indigenous Youth

[15] Royal Commission into Aboriginal Deaths in Custody, National Report –
Volume 1

[16] Information sourced from evidence given by the Law Council of Australia to the
Senate Standing Committee On Legal and Constitutional Affairs: Crimes Amendment
(Bail And Sentencing) Bill 2006

Last
updated

September 13, 2009